may please the court accidental deaths insurance policy issued there we did there was no showing that he's even bitten where he was bitten how he was bitten things of that sort so i mean they they knew they had west not correct excluded well in that may or may not be correct or from our perspective best there's an ambiguity in the in the policy language that creates a problem to address that under similar language contribute to by language is the better for test if the physical disabling issue is nothing they say more than the insured a lot of ways that you can catch things are accidental in other words you can thank you be airborne from the person who gets to stand point i didn't intend to be sneezed on i didn't intend it that something right behind someone who just touched in something with their germs on it and didn't mean to touch my face or my eyes but i did it was an accident from ostend so having it would that come into would that be cat would look so you got so infectious disease or over time it seems to me they will evolve a set of standards in that regard i don't agree that when i do agree that the court's decision in the air morning  they can do the same thing with airborne minister and they are studying all the time the kinds of claims that are made in order to refine their underwriting process to refine the language in the process so to the extent it becomes accident that accident or death insurance is not life insurance but limited insurance and should be interpreted in that way and that only applies to nearly prescribe circumstances moreover this co accident even if you assume that without the jury question there's still the requirements for coverage of that accident are not met under the turing clause because  at the accident in this instance produced the west now infection which then led to the west now being so polite as the trial court the district court below found that the death certificate showed that there were other causes besides the west nile virus or the accident caused all the other conditions limited within the death certificate that were listed as conquering causes that the district court found properly that excluded coverage and t that evidence in the record on that issue was not clear of course miss wells introduced evidence from her expert that said all of those other conditions were secondary however minnesota live had introduced evidence which expert it's going to lead while as this court said in the house case when the issue was there was a drowning under the same and shine cause and gentlemen john drowned and there was evidence that he had a heart condition and the evidence was equally a put as to whether or not equally could go either way as to whether or not the heart condition contributed to the drowning drowning would be accidental but the heart condition would not be and this court held that the party with the burden of proof on that issue on the sole cause then must lose and that's really the question here on the insuring cause it goes to your honor asked as well as counsel whether or not where she gets the but for causation at least with regard to the insuring clause in particular that provision with fire is more than but we're causation in fact the binding authorities of this order and the texas supreme that's that in fact know your honor because there is not there that the conflicting evidence here all of the evidence in the record is essentially supporting that these other concurrent causes contributed to mr wells dead the only even if you assume that those are the result of that then i think you would get to a spot where darkness your term perceptive is if you assume are you still don't have an evidence and i guess a poor also assuming an accident and that i buy a mosquito bite could be an accident if word assuming both of those things you still don't get past in this case the fact that the death would still be excluded by correct there are two different issues that well i mean if you're if you're telling me to assume that that the mosquito bite that is not unexpected or insect basis and that's just a fact of everyday life as opposed to something that meets a definition that judge charlie read off like a car accident or something that is a mishap in the sense of not something that you  in every day but in the course of everyday life and if we're going to assume that that a mosquito bite meets that an accidental bodily injury that was unexpected unforseen in evidence transmission of a infectious disease by a mosquito bite or an insect bite which incidentally is a well known risk being including in cases that miss what was thought it's where they find everybody knows that this is a risk of everyday life that we all face you have to assume one that that's that's an accident and then second you have to assume particularly in this case airborne pneumonia i mean again he says look there's a difference between a core accident or in my case it was a prick by a needle that then leads to something that is a misshapen unexpected and unforeseen and that you would not have an unintended there's a difference between not believing that into an infectious disease and acquiring a texas disease in the same way that that disease realm is normally trains maybe there's a difference between  particular in a particular place where one would expect rest not all i mean that's just me i mean with all due respect i think the texas supreme court has disagreed with that in the very a case in the nominee court case that by the virus which brings me back to the exclusion argument and the reason why even if there's any question about whether or not this debt would be covered and of the insuring provision of this policy it certainly would be evidence in the record was that mr wells bodily infirmities including his preexisting diabetes hypertension and age contributed to his development of west nile encephalitis from the west but they don't have to be approximate cause they don't have to be something less than back to contributing to you know i mean that's what seiko said just when the exclusion contains this directly and indirectly language with the if the bodily sort of disease in order to do you good in your letter we i think it was down in a footnote but that was not our main thrust on the exclusion below in part because that raises some issues with you know whether or not the coverage has  particularly if you assume the line here where the by convenience to the encephalitis and then to say that that's a disease that's excluded the primary thrust of minnesota life's exclusion argument below and  infirmities including his greatest in diabetes hypertension and age contributed to his death by making it more likely that he developed severe in several items from the west nile virus in the first place and those same conditions including his obesity also complicated his in treatment poor westone simple widest such that they were it depends on it one excluded it depends on whether the heart condition how much of a contributing factor that heart condition was to the dead i think if the ultimately if the testimony is that you would have accept because you're eighty six or eighty seven your bones are fragile your heart fragile is not covered or not in my mind that much i don't think that that would be excluded under the terms of this  say if you look at the application says you must be left behind before age sixty five or sixty or sixty five and has absolutely no health questionnaire attached to it now they say that his diabetes and hypertension and blood pressure and things of that sort or cost was part of the solution and the court trying to go below what along with  the the issue here is whether or not the record on this record there's a nothing to take these issues to jury regardless of how persuasive i am a jury may not agree that there was an accident position on no harm nobody's talked about in your own model and you're not alone but in what she has said i don't think it's will rely on our are grieving in that regard in that regard