belief that that money would be deposited into a their medical plans which was never done over the course of about five months there's a number of issues that we have to go through in order to get there apparently it's a simple case but it's made complicated by a number of issues including a i'll start with a recess unless a court wants to hear i would like to start with whether or not the oregon statutes we why shouldn't we say that there is a private cause of action for a six one hundred and four if the statute names one but not the other because the four type violation to now with respect to the trust the organ legislature was so careful i'm sorry your going legislature was so careful when they wrote the statute well your honor i mean if there were perspective i kind of thought it was kind of funny are trust funds they establish trust funds and the employee employer relationship is a sufficient special relationship to when you when you look at the statute creates the obligation of the a common i action statutory oregon legislature has articulated this cause affection so we're no longer in the common law ram when the statutory ram and if the statute does not set forth that there's a patrick cause of action how do we get there we can't go back to common law if it's a statutory creature well the statute it's not statutory created other than the language of the structure of fide it's  hoffman case it recognizes that in such certain circumstances the employer is has to do shiri obligations to the employee it's a special and it can be and it's based on a special relationship of the employee employer to the employee with respect to the the common law the common law claim exists because of the trust obligation that specified in the statute so tell me this precise language in hofmann that you're relying upon to support your proposition that these c the obligation to provide insurance there is one thing which are yours picked in that case it states your honor that in certain circumstances a trust obligation can arise and it not in that case that the trust obligation this is the worker's compensation case correct correct it's a work work work and workman's compensation case your honor and it was whether the employer had a duty to to furnish worker compensation coverage and because of the specific statutory language and made it work or compensation system exclusive that in that case the finding was there was no trust obligation but the language of that case i don't have a specific on the page reference your honor but the language is in certain circumstances a trust obligation can arise between the employer and the employee i don't see that language maybe when you come back  can want me to before your time runs out i did want to have a brief conversation with you about preemption preemption rights because this case this after are the read after our remaining from the st go round ey claim for interference with with contractual relations when it is completely preempted they aren't your honor why not when you say complete under five o two because none of the individuals involved here were reference to this collective bargaining agreement doesn't require it doesn't cunt required to potations under the collective bargain so your argument with respect to conversion is that conversion is a state tat statutory right independent of the current bargain it's independent of that and that you are going to litigate that claim you don't have to me you don't have to interpret the collective bargaining agree don't have to interpret the collective bargaining agreement and it's based on the statutory  requirement of putting that of the seven day period of failure to ever make that money for the medical plan so therefore it's an exception to the grievance process and and and  doesn't require any interpretation of that if i know what about the other cut and what about the other cause of action interference with contractor release why isn't that that seems that seems to be derived founded on so the the collective bargaining agreement these are these claims under the kobold analysis are unlike the implied money hadn't received claimed there is no implied contract they're not based on an implied contract the interference with economic relations claim is based on the interference with the economic expense of expectancy of having a benefit when it was not all to rights from the from the c b a i'm sorry that comes from the collective bargaining agreement because it becomes it comes from the agreement but it doesn't require all then difficult it's found if it's found if it's ultimately founded on the agreement then it's completely preempted under under under the elementary and you're in federal court the interference economic relations claim has nothing to do with the collective bargaining agreement it's the seven day failure to provide payment into the into the funds essentially that's what it what cases although you look at the whether the employer is an administrator claims administrator a claim sponsor here the employer is neither and and neither are any of the truckers participants in the plan and it doesn't require any any detailed analysis of the plan it doesn't require analysis of the planet all the plant all the cases the element case the albion case  whether or not there's a private cause of action if there's no preemption at all i'm sorry i didn't hear that i'm sorry we only get to the issues that judge rants and was concerned about whether there's a private right of action under the statutes correct if there is no preemption then then the issue is whether there is private right of relief under the st or nd claims and then the rd th claims exists independent of whether the private right of relief under those two cla is is this what the court is would doing within the policy of the statute and in protection of the individuals i mean just this just an aside you started off with that when you when you stood up here in front of us what are the damages that they're seeking damages as i mean they got the ultimately the money was paid over and everybody got on there everybody got on to the health plans and they got i guess their benefits under the health plan i heard today well what are the damages damages there is ten years of litigation for i agree your honor about the ten years litigation it's actually seven but there that what was said issue is the emotional distraught the individuals involved not having insurance and not about it during that period of time and it's the most monstrous claims the layo relating to that and signed it let me i did it let me ask you this if under let's just say what during that period of time one of the one of your clients had suffered and then if there is no five hundred and fourteen preemption then played then then the court can go into the whether is a proper right of action for the original statutory cl and the question that the court asked there is could they have brought a claim under a recess five o two a one b and what that section says is a civil action may be brought by a participant or beneficiary to a couple benefits due to him not planned participants but they are planned beneficiaries so what they could have done here along along with bringing the are along proceeding along with proceeding under the c b a the given sort of procedure should specify as who can bring an action against who and what can they recover and emotional distress damages are not one of the damages in married under the statute well if that is that and meet more than did the denial that they have that's the point they're making is they were complaining about more than just the mere denial of the benefits they were complaining about the emotional distress that was brought upon them because of the  the turmoil of not having the help and i understand i understand that your honor and here what we have is a situation where the law provides under the you know under risk here's the remedies that you're entitled to you can get your you can get your it also happened under the c p a and that's that's the remedy that's what they get back and arista does not allow a claimant to or a plaintiff to circumvent the statute which you know resulted after i believe  ten years a ten year study by congress to say here's who can bring a claim here's what you can bring it for and here's here's what you get back but this isn't isn't a conversion claim sort of plan which i've never seen that you know medical benefits plan it comes from a different source comes from state law and i would disagree or i would i would compared the converging claim in the interference claim with the money hadn't received payment call but which is what they're complaining about is a contractual entitlement under this under that the b c b a which also references the plan and notes that that that with drawn amounts need to be forwarded to the plan so i don't our position is that they're their claims are they don't exist just in the ether the only reason they aren't blaming plaintiffs are entitled to health care benefits is because of the collective agreement and because of the point let me ask you is there a difference in the way you analyze the conversion claim under five hundred and one versus five  intentional interference yes they're complaining about the fact that they didn't get the health benefits and the worry about that you know i understand what you saying it's related to ressa but the issue really isn't conversion into intentional interference more than jest you don't give me my health benefits which are being aristocles it was you didn't give me my health benefits and you took my money and you took it you didn't put it in the plan to give me my health benefits so what about that aspect of  into intentional interference and conversion right there's two different pieces here is one the authorization to withdraw the funds and then the obligation to move the funds once you take them out of the trust that's also in the written the collective bargaining agreement legislature or the oregon supreme court has articulated and that's let's look at the tax in the context and that's look at the legislative history if we're still confused and here i think you know it's very telling as amended and do not have met with been inserted in here when they looked at the statue in two thousand and seven subsection four they didn't include it in in six hundred and fifteen dollars in the court doesn't need to be troubled by whether with the obligation to move once you have the funds to taken and put him and sent him somewhere else and so the person harmed in that case is not necessarily the employee but and instead the intended recipient and so there are addressing to harm and i and you know when the employees harmed under subsection six subsection three i think it does make sense for there to be a private right of action for that wrong because you were not never are authorized to withdraw the money  thousand dollars for a violation and you know that judge robinson was talking about well can you point me to a case that that says that these two or these three statutes here six also seven hundred and ten and seven talked about because the director of the department of insurance and finances authority to enforce or arrest seven hundred and twenty five thousand and sixty there is no need to recognize recognize a primer on action to carry out the statutory policy i would say that this to for preemption i would point to the feller versus blue cross in california prince versus sorrells whole holdings and more versus apple care  yes you're under the st part as i mentioned there is no the conversion claimant interference claim and they're complaining about the entitlement to health care benefits those are contractual duties under the c p a and  have a different no because what they're complaining here your honor is you were you had to deduct this money and then transfer it over to the otec those are obligations that stemmed directly from the collective bargain agreement there's no other are right but if there was no collective bring agreement talking about this is what you're supposed to do i think that that plane just might have a i have a better or they might have you know for example one of the cases you know at least beneficiaries nor participants money went never went into the plan they weren't covered under the plan this is an action for recovery of withholding of wages not an action under the plan not an action for the plan of what the benefits were this is just a total denial of any medical benefit the conversion claim is based on the elements of the exercise it's a minute and to me an over the chattel t chattel being the money that was withheld and it has nothing to do with the c v a that the fact the failure to to earmark the money with where was supposed to go within the seven day period based on the statute not solely based on the agreement c v a so the conversion claim essentially is an independent claim could not have been an exception to the grievance process under the c a the interference economic claim is the same it's based on denial of an expectation of an economic expectation and it's based on the wrongful means that based on the independent statutes  a trust claim thank you your honor thank you thank you thank you counsel this interesting case is submitted in your arguments this morning