The Supreme Court held that “our test only requires” “that the state law substantially affect the risk pooling arrangement between the insurer and insured.... ” Id. (Emphasis added.) That is, the state law at issue must “alter the scope of permissible bargains between insurers and insureds.” Id. at 338-39, 123 S.Ct. 1471. The requirement that the Court engage in a de novo standard of review and the right to a jury trial dictates to the insurance company the conditions under which it must pay for the risk it has assumed. In Rush Prudential, the Supreme Court held that an independent review requirement affected the substantive terms of the insurance policy and thus, not simply the risk insured against. Rush Prudential, 536 U.S. at 373-75, 122 S.Ct. 2151; see Kidneigh, 345 F.3d at 1186-87 (<HOLDING>); Am. Council of Life Insurers, 558 F.3d at
recognizing change recognizing presumption recognizing this rule recognizing rush prudentials holding recognizing rule