intended to split up the twenty minutes let me just say just after your briefing i thought was quite thorough and i don't see any reason why we need more than forty minutes for this case so we'll allow i think  be your case management time i think you could probably read the briefs entirely i have a reply and twenty minutes but i think i timed it took just about thirty on the treadmill so there you go we're getting a little too wordy quickly let me just to just set the table also to help the other colleagues of mine when they're up here to to set the chronology what happened here actually although the issue presented is one of law but very quickly my client  october eleventh one thousand nine hundred one on october twenty nine of one nine hundred ninety one so we're talking about a matter of three weeks later a mr parker executed the beneficiary designation form for his company's sponsor to risk the life insurance plan and that's what is really the heart of the case that we have to talk about so he was aware that the she had filed the divorce papers three weeks before he wrote on the beneficiary line that is a reference to the will of his executed one year before that is correct and you know that that point that he has that you can actually you know to be fair mr parker it could very well be that down the road he was going to and revoke the first well and so we're really kind of talking about his control of the flexibility of beneficiary designations by using will which paroles us into the question of his incorporated by reference and how that all plays together here but let me go on with the facts just a little bit to set the table before we start that discussing the legal issues one fact history not mentioned is before he wrote as indicated in my will he put th that is that is correct you notice that at the bottom of the form there are various things four different ways of identifying relationships and judge b i'm going to refer you on relationship coding to footnote two in the decision the united states supreme court majority opinion because there is a reference there about the use of these codes and when they are not significant in determining the appropriate beneficiary but again let me go on  after after filling out the beneficiary designation form morocco and parker were actually formally divorced on december twentieth one thousand nine hundred ninety one so that's about five weeks after he's filled out the designation for and then what happens next is mr parker remain single for eight years or so this beneficiary designation form is on file with the company this entire period up to his death about fourteen fifteen months later in july of two thousand in november of two thousand the probate court in the state of arizona revokes the will by virtue of arizona's divorce  that is correct with another lady and the truck the child was was actually born on december sixth two thousand after the state court has invalidated the will and at that point in time the next important thing that happens is that the one of the plant life insurance company in this particular case files an interplay or action in the united states district court in arizona that's in may of two thousand and one naming in that lawsuit the child the estate of the current wife the ex wife or former wife and all the contingent beneficiaries which were relatives of parker that were in the will so basically they go to the court and say hey we enter plea you figure it out and then finally in june of two thousand and three the district court awarded the insurance benefits to partners the state based upon it understanding the facts and the law so once again to set the table the real issue here at least from my perspective is whether the beneficiary designation made by parker was ineffective as a matter of law because it referenced its will and status specifically listing the name of the beneficiary designated in the match really what it all comes down to what legal standard are we to judge whether the designation is effective in the plan that governs how specific one must be in designating a beneficiary there is no specific plan language about that this is the problem the question becomes is this court as the district court did going through include a restriction in the plan that the document otherwise does not impose with respect to the manner or the how do we designate a beneficiary what happened in the district court judge by the ins the judge that caught up in who is of then a fish year and there's no doubt that they are listed in a recession and they're very specific trust the states houses children individuals people whatever it may be but the issue here is not who but how is the manner of designation accomplished in on that issue a risk is silent so we look at the arista case laws and we few nice circuit decisions that talked about the use of incorporation by reference into a recent plan documents when trying to deal with certain issues regarding what the plan is what it means and what the language is so the a you say to me richard are you say to me mr wall why why is there nothing in a risk that that's telling us that does that cut against my argument or nothing in the plan is that kind of gets my argument quite the opposite it supports my argument one of the that he has made a proper designation that company holds onto the document and keeps it for eight years without ever saying there's anything wrong with it when all these issues come up the company doesn't say we're going to pay the estate or we're going to pay the current wife or we're going to pay anybody the company simply says is we're going to honor plead the funds in into the court so we've got a situation where when we're going to analyze this we look more at the traditional concept which arista law is predicated and that is that plan grafters have to be free to do whatever they choose to do so long as it doesn't violate arista and that leads us to a course into issues discussed in egle hoth not none of the parties in this case disagree that arizona's divorce revocation statutes and probate laws that would otherwise invalidate the will do not apply to the original benefits remember we're not talking about all of the benefits of the estate here this gentleman had other assets stocks bonds pension plans everything else that is all properly disposed of through the state law dictation if you will exactly ration of how it should go in this situation is there any indication that anybody affiliated with the plan reviewed the form to see whether he had properly filled it out whether it properly designated things whether was unambiguous the record is totally silent we don't know whether something we don't know whether anybody reviewed this know no however if i could write the opinion in this case i'd be talking about those very kinds of issues because we have to get the message published out there and that's why it's so important when you're deciding these recent cases to to  hopefully publisher opinions to provide guidance to the plan drafters into the plan administrator since i do so they know what to do in cases like this if you are going to state in this case that in court the doctor and the concept of incorporation by reference says that it has to be contained within the plan documents that we don't want to put the onus on the shoulders of the plan administrator to have to go out and seek out a legitimate will or determine whether that is a legitimate will or the last will that was actually written so how do we reconcile those need we have to reconcile it to same way we constantly do and we have to balance these interests in a risky cases you're entirely right in what you're saying but the higher duty when you read the case law and understand the precepts behind this whole area of the law is that the message here is to inform the plan participants to keep them knowledgeable we're not asking you to put a burden on plan administrator is other than what they choose to have voluntarily if you write an opinion that says we are going to allow incorporation by reference when there is no reason no limitation in the plan and no legal reason not to do that you are basically saying to plan drafters however if you want to place that limitation on you can write it into the plan when it's written into the plan then the plan participants can read the plan the s p d or even these beneficiary designation forms and i understand when they're doing it right and when they're doing it wrong with it then you're probably not going to like this question but i'll give it three anyway if so wouldn't it be simpler for  simply say it has to be clear on the face of the beneficiary designation form and if it is not clear because in this case it had we had to look to some exterior external force to resolve  then the default is that the in this case the proceeds go to the state however state was determined it's you know whether it's done by an test to see or whether there are contingent beneficiaries and anything you write pretty produces clarity in this area is going to be helpful one way or the other on any side of these issues but you know i don't want to stand here and run through all the possibilities but let's say that the individual puts in there as indicated on the attached sheet or the separate sheet that's in my personnel file are we going to then say that lacks clarity are we then going to say that it's an improper designation i mean if we're going to write a rule that very particular here he says as indicated in my will with race of lots of questions how many will to be have do we have to look to state law to tell us which of two competing wills is that because one of them was properly signed and the other one was not  by how what are we dealing with when we're questioning what happens when we're dealing with multiple wills or invalid wills or whatever and i prefer you to the to the kennedy case which is cited in our brief where the court had to deal with that chambers of horrors type of argument and how they dealt with it very simply says you know that they're not going to engage in speculations insurers who offer him play benefits plans under risks are free to allow policy holders to change beneficiaries through more than a single means so long as the policyholders are informed of the means and the plan administrator complies with its fighters your obligations now that case is a little bit different in this case and i'm not going to argue the particular facts but here  message again is being repeated here so as long as planned participants are informed this is the most important principle of risk so yes it's important that we make it easy on plan administrator but there a know unfortunately that before he says indicate again i'll tell you that the reason for that honestly quite frankly is he's thinking about i'm going to always be able to control all my assets through my will he doesn't know you know quite frankly he probably could have left it to the guards but i think that this to court would have found that that was an improper identification because they're not a person you know i agree with you that there are a lot of competing only got about a few minutes sure for thank you very much thank you are is that ms home free i absolutely agree with mr watt that you've got to follow the plan in this case and that is that the principal lesson i think of is if the plan tells you what to do he's kind of follow the plan and in this case the plan does tell you what to do first of all the plan does tell you how to name it we're changing beneficiary it's on page one of the relevant portion of the plan which is on the tab seventy two in the supplemental excerpts of record it says that you may name or change your beneficiary by filing a written request on a form approved by the company at its home office the problem with what mr parker was trying to do is he was trying to say i don't want to name my friend officially right now and i don't want to use your form i want to say that i will name my beneficiary when i choose and i will change it when i choose and i will use whatever form i want to change it and i will keep it wherever i want and i won't even tell you where it is or what date it is or whether i've written it yet and that is not in accordance with the plan and that that is why you can't use incorporation by reference in that sense and i don't think you have the same problem if you say as i indicated in my will dated april sixteenth one thousand nine hundred tach two or two and then you look and attach there to it says my my pension benefits for x company go to you know that's that's using the form and you're just attaching another sheet of paper does doesn't doesn't matter as long as it's together and the administrator has it but you've got to be the plan tells you exactly how you can change the beneficiary the plan is very clear that it's got to be on the on the form and the reason for that is of course the certainty that it provides and you can't get out of that by saying i don't want to use your form i don't want to decide right now i want to as mr watt said keep the control and flexibility for myself that's exactly what you're not allowed to under this plan you're not allowed to keep the control and flexibility for yourself you've got to say who is going to get that money and you've got to stay on the form the plan also tells you judge coleman does tell you what to do in case the beneficiary designation is in effect if you don't send it to the state the plan says if there's no effective beneficiary designation proceeds will be payable in the following order number one the spouse of living we've got that here we have his widow she's living it goes to her the plan is one hundred percent clear on later you can't name a document that you might not have written yet and you plan to change at a later date and if you don't it'll go to your spouse and if your spouse is living you know go to your children it's very clear what happens in  alcohol there was a lengthy discussion about why it is that you've got to be able to tell who the beneficiaries are by looking at the plan documents and the beneficiary form first of all the majority mentioned the statute twenty nine means you got to be able to find the beneficiary by looking at the plan documents and the beneficiary form they also talked about some of the policy behind this you first of all for the administrator you don't want to burden the administrator either with having to look for these outside documents or especially you know getting into the preemption concerns of having to apply state law to even figure out which document is being referred to is it perm and then it's all my assets go to my wife and and my wife my wife my wife and it goes on like so i'm not sure in this case i'm not sure that under the facts of this case that would work but as i said it's if the form says my will five also talked about that the beneficiaries they said must be able to learn their rights at any time how can the beneficiaries learn their rights at any time if they look at the designation form it says as indicated in my will they can't learn their rights from any time the court also talked about both the administrator and beneficiary needing to avoid the delay the uncertainty the litigation expense  that comes into play when there's this kind of incorporation by reference and and that is one of the reasons i think also for the statutory definition of person that is also a federal law that comes into play in saying how do you name your beneficiary but the federal law says you've got to name a person and here's what a person is a person is an individual a corporation a partnership it can be your state and it looks a pretty wide variety but a person is not  i'll tell you later in a document that maybe i haven't written yet but but i promise i'll write it and i'll put it somewhere that's not a person that that is an instruction to the administrator to try to find response when you pointed out that the plan document says that in that case the default is well he didn't respond at the time of argument however and he did find that the designation was ineffect and the final paragraph of the orders a little confusing because he says that doesn't make sense and effective as the default would be to the spouse but in this case i'm going to use the relationship code instead and go to the e a s the relationship  the reason it's a little confusing is because he does that and then he drops a footnote to alcohol to to footnote two when you go half where they say you can't look at the relationship code for heaven's sake that's that's just a lay person's attempt to provide all the information that's being asked for on the phone records offered from the same problem that going forward i would certainly think that i have a great deal of respect for just to work eight they went into that quite a bit and said look you've got to look at what's the real designation a lay person is going to try to fit their designation into a relationship but if the designation is in effect the relationship code can't become in essence the contingent beneficiary there is a line for contingent beneficiary beneficiary if that doesn't work you go to your contingent beneficiary if you don't have one because your spouse and it's very clear as i would like to say i do think and i we really haven't gotten into it i do think that the incorporation by reference is especially difficult when you have it's not just the document is governed by state law it is the states and it's breach it's when you have to use state law to even figure out which document you're talking about when you when you do have conflicting wills for example if you had a will that was handwritten but it wasn't signed and then you had a bill that was typewritten and it was find that there were no good morning i'm david hogan and we have taken a very simple case and made it very complex i represent the estate of scott parker i would like first to respond to the remarks of counsel for d facts of the order the judge says decision scott parker was an employee of bank of america and a participant in the bank of america group benefit plan which is an employee benefit plan governed by arrests in connection with that plan plaintiff issued an insurance policy of parker in the amount of four hundred fifty seven thousand dollars july twenty one two thousand and important date the bank of america associate handbook fact the of on jan your was effective on january one two thousand and stated this handbook supersedes and replaces any prior communication policy rules practices standards and or guidelines to the contrary whether written or or in consistencies the summary plan description in this manner in this matter states if you die and no beneficiary designation is in effect as to any part of the insurance or if there is no designated beneficiary then living with respect to any part of the insurance the insurance company may at its option pay such part to the estate accordingly if the beneficiary designation and change form of scott parker does not designate a beneficiary under arrest and we think that it does then the estate should receive the insurance proceeds designated by a participant of the plan arrest the fines person by listing eleven and their days or individuals including of course a state the court correctly found that indicated in my will is not a person is an effective and not a beneficiary under arrest it simply does not come within the definition person on the beneficiary designation and change form dated ten twenty nine ninety one mr parker had six relations codes from which to select he could have placed the initials espied for the spouse or he could have written in the name of eileen parker if he wanted her to receive the benefits but he did not the valid designation written by mr parker in his handwriting was asked a state under the relationship code the top court was correct in finding that mr parker's entry as indicated in my issue in terms of how to dispose of the state but as i said earlier in my opinion the default better for sure is the state anyhow but you know i'm having a hard time reconciling what   and bank of america merged with a number of companies we take positions that as of january the first two thousand anything that went on prior to that time question the next thing that i had down was the associate handbook of black america states under the subcategory of life insurance that the beneficiary means any insurance amount payable as a result of your data is payable to a person designated by you as your beneficiary on the bank of america beneficiary form that's not an unusual provision and a resident that you use our form in this case the beneficiary form designated the estate and the relationship ressam mandates that plans be administered quote in accordance with the documents and straw mats governing the plan unquote you will find that the consistent rule everywhere on interpretation is that the summary plan description language trumps everything and the reason that the courts follow that rule is the same machine that i started up here arguing about why we should have incorporation by reference is because of the informing the planned participant the plan participants don't get the insurance contract they don't get the details language of these along plan documents what they get is  handbook which in a recent we call the summary plan description you'll see that discussed in the cases and the cases quite clearly say no exceptions summary plan description language always controls over everything else because that's the then do we go to the handbook that is in existence at the time that designates it or going to use it at the time you know it now is now a year that's nice nuanced question and i'll leave it to this court to find the cases that answer that particular one but so far as i understand it the paragraph if you designate and just read through they are judged by oh i see where it is ok and that's what mr haygood was referring to as being the controlling piece here ok let me try and get back in argue behalf of my client for for our position in all of this the the  issue what significance if any do we give to the fact that the company and the plan administrator has accepted this designation and never informed the plan participant that there was anything wrong and effective or invalid about it is that an important fact in our analysis i pose that simply to the court because i believe the answer to that has to be a resounding yes and i believe it has to be yes for the same reason that all these cases keep telling us the optimum maximum maximum that we have to file in all these things is to inform the plan participants if mr parker is submitting this form to them and if they're not saying for eight or nine years it's wrong and even when it all came up afterwards the company didn't say it's wrong and give it to the estate or whatever the company simply said we're going to wash our hands of this because as we heard somebody earlier talk about  environment in which we live it's easy for them to go down and dump it in the courts and get involved in all of this but why can't we have two things one the reason they never said anything was because some quirk received the form and stuck it in a file and nobody looked at it they're the first ones that say you know something's wrong here and they probably made that decision without even consulting the plan people that's the reality of the insurance business that on your rights these particular types of plants i'm just  sit are you in summary number want you can support what the district court did because the district court looked at the wrong section of a risk about who could be designated rather than how are beneficiaries designated so the district judge was simply off base on his rationale i know from recent rulings of this course that even when the district courts its rationale if you all find that there's a good reason for reaching the same result you'll do that but he was sick frankly wrong on his rationale number two there is nothing in a recess itself that prevents this type of designation by referencing another document number three there's nothing in the plan that prevents this so that participants are led to believe that what they're doing is reasonable and that it will be carried out and number four the message here should be planned crafters plan administrator says we are not going to impose restrictions on plan participants beneficiary destinations which are not included in the plan document itself somewhere and no rush to suffer such restriction is there which then plays to the next is you assuming default beneficiary and if you look at tab seventy two in the death of the two is that the bowman insurance policy is that right that there was an earlier policy i don't believe there's anything in the record about what the date is on summary judgment statement of facts which is what i want to just show you right before that the first two pages before the plan begins is our statement of facts on summary judgment in tab seventy two summary judgment facts it's the only fact we ledge nobody objected to it it's never been raised until today and the problem of course with this being a brand new argument that's raised here is that nobody has looked at whether or not the handbook really is the controlling document and as a matter of reason it doesn't seem that the employer could change the insurance company's responsibilities by quoting something in the associate handbook it doesn't make any sense but nobody has researched order has been out for some time clearly says what we are operating under as far as the b of a group in benefits and so it's not did you raise this argument before and can you tell us where you raised it before i  see that that is in the record and that was provided did you argue to the district court that instead of saying that that that the e s code would govern here that what he really should have done was lots of the bank of america handbook there on page seventy eight and award