move to the next case on the argument counter which is id solutions inc st a specific care life and health insurance company ok if you're ready so i really there's some overlap but i'm really going to be focusing on some different issues ahead i really do think this is a markedly different case in a lot of ways what i'm going to be focusing on this case is was there an unequivocal denial because i think the trial judge in this case adopted what i believe is the appropriate a proper response which is it has to be a reasonable time but i'm looking for an unequivocal denial that's why we that's how the judge a terrible timidly reconcile this and secondly this whole same thing which is i want to state the obvious these are all legitimate defenses to these cases i mean obviously statue limitations of these are all factual issues by no means am i suggesting that the insurance companies lose these statutes the only issue here is whether or not in both cases it was simply completely implausible or impossible to establish that the statute limitations had not begun to run now in this case judge of terror relied on that you'll be as being an unequivocal denial equated it with official death case and i think that it's this case is completely distinguished on the number of important respects st of all the e o b's themselves it's a fine point it's not it's not well we're denying but if you want to give more information you can it's actually inviting you to review this and saying please review this because we're asking for the exact language is the charges more than the maximum allowable charge or usual and invitation to say well if you're unhappy let us know but more than that i believe that we have in this case in vision unlike vision and then we have a trial court that looked at these these at the motion to dismiss the exact same meal b s it wasn't just the one hundred and eighty five it was all of them and said here the o b e obie's do not indicate pacific here was unequivocally denying i b s claims for reimbursement and even invite i p s to submit additional information clarifying the services and or charges i'm not arguing law the case but what i am arguing is that if the standard is that this language was simply impossible to read in any other way other than the way the district court read it the summary judgment i think the proof is that when the district court looked at it the motions to dismiss you reach a different conclusion with respect to the same meal b s and even if this court believes that the reading of the at the m s j was the better reading or the stronger reading the point is at a motion for summary judgment the question is is there any other interpretation that was that a trier of fact could have found presented with those facts and here we have judge otero reaching a different result and only that this was a situation where this wasn't a pro forma request for more information recall in the record in this case they were paying at this t r p and rate we have evidence of them doing it and when they're inviting more information from i b s is of unequivocal denial not just in a stoppel argument st of all the court itself again the trial court in the motion to dismiss in this case found it relevant found that language relevant of the subsequent communications and relied on in an eye on the motion more important i think this is really akin to is i think one would have to concede that the eels bees at the very least are reasonably susceptible to whether it's a such a complete an unequivocal denial or a just and initial payment with an invitation to do more i think it's analogous to how you interpret it and how one interprets an ambiguous contract if you assume that the ambiguous on whether it's equivocal or unequivocal as a trial lawyer what i find always most compelling is how do the parties treat this before there was a dispute look at what they did ask and there's no lawsuit there writing all these communications and here they go from august of two thousand and twelve through to over two thousand and twelve i mean not just saying we're looking at it they're actually telling you we've done we made a mistake we didn't build it the right price we're going to make corrections aren't used that say things like we are unable to determine benefits until we receive additional information i mean this charge is more than the maximum allowable charge or usual and customary amount payable by the plan seems seems to me to  be pretty direct and final your honor i'm i think that i'm prepared to concede that it's ambiguous in other words i think that it's a legitimate conclusion if this were after the trial and the that to me indicate that it's at least susceptible to two different interpretations but i do believe that these post he'll be communications are extremely relevant to say what did the parties themselves how did the parties themselves view it and i think the best illustration is you compare all that language that was in the emails and communications and transcripts and by the way contrary to what's indicated in the other side's briefs these do relate with one exception to all the claims not just the one  all those communications are for all the claims but then you can parrot your order look at look at what engine if you want to see an unequivocal denial based on a review we've determined that the claims were processed correctly according to  insurance policy therefore no additional benefits are available sometimes by looking at the what what is the obvious it's the best way of illustrating the earlier you know what the earlier information was so i would s if you had nothing else just those evil b s perhaps one could reach a different conclusion but i think when you look at all the circumstances and look at the for subsequent communications where they are telling you we are reprocessing which is a term of art and we have an expert testimony on what that term meant in the present of the judge otero i think that that is contributes to the issue of whether or not there was a for proper finding of an unequivocal denial  essentially it was discovered in the course of this covering that it was the wrong country so council here's what i don't understand and i'm going to have some questions on this for opposing counsel you say in your briefs you didn't have the and seventeen and it was served on the lawyers in that case for your client so the i don't i apologize and i'm not sure if i don't want it there i don't think this is in the record i was not the attorney at all and i understand i understand you're not the attorney with your brief says your client did not have it no more than that there was i think i can state because it's public record that there was a confidentiality order in that case i did not have that two thousand and ten agreed you didn't you didn't say that to the district court here i mean you when you attach whatever that exhibit twelve the redacted version you didn't say there i don't have the on redacted version and there confidentiality agreement i can't use the contract from the twenty seven thousand case in this case unless somebody goes to the other case and ask the court for for permission so i mean why wasn't any of that done efforts to get the contract from other counsel and whether or not they felt they were allowed to do it recall i didn't know the contents of the two thousand and ten document until three weeks after the opposition was filed when the other case the u h c it was the other the case where the court issued his opinion but the reality is that this is getting i don't think there's any serious dispute that we didn't have it i didn't have it i guess one can challenge what could we have made a motion to a earlier because the client who'd have got it because the redacted version you filed in this case doesn't have any of the language on it that's right yes that you are a rd party beneficiary all i was there only reason i was attaching it was to reflect the fact this you're relying on the wrong agreement we know the dates of service were after two thousand and ten and i had the agreement and the date so i wanted at least judge of terrorism understand that the whole argument that they're basing their argument on which is frankly i mean it's either you should be relying on the contract that we wanted to rely on which was in our proposed nd emetic complaint or the original contract which is that european country which we did have and which was it was that the relevant contract was the concentric contract right in the summary judgment cleanings we said that the two thousand and ten multi plane that can centuries the two thousand and seven agree no i understand that but you have various pleadings with regard to summary judgment which you say you're relying on the concentric agreement what we said is faced with what we're dealing with because we don't have the original agreement i did address arguments about the two thousand and seven agreement but we did not concede the motion the opposition to the defendants motion and women e where you say plaintiff intends to submit evidence that the kind of paid ninety five percent which is consistent with defendants obligation under of the opposition to the motion i think it's october to twenty seven today at that point that's the only agreement that we were allowed to rely on because the amendment the motion to amend had been denied this is all it comes down on july basically i'm about to take the europeans deposition they said we don't have a contract which leads me to then investigate and by the way remember that the bills here from pacific air reflected that they were paying in accordance with the  p n so it wasn't like this was out of you know completely from left field we assumed that it was a t r p relationship we've got to take the deposition of the t r p and most knowledgeable person we find we don't have a contract and by the way with respect to the prejudice and i you know i wish you the professional courtesy there was a stipulation to continue just for purposes of getting to the bottom of this you know i'd like to reserve a couple minutes if that's ok statue of limitations the court that the language in the e o p is for which the district court did find the statue limitations had run were very clear it wasn't just the language it came with the check these are these provide the it's really clear cut on that issue with respect to the argument as to the motion to dismiss versus the motion for summary judgment the court's differing opinion on that as we've seen here today and being on a motion to dismiss is not the same as  isn't the applicable contract here i've read your declarations in the district court which don't actually say in explicitly the concentric contract is the applicable contract they say that the payments were processed under the concentric contract so i've read the two thousand and ten contract and i'd like you to tell me why in fact that isn't the applicable agreement for claims purposes of argument we need to identify the right contract which i v s is claiming to be a rd party beneficiary but in fact pacific are never access to the concentra agreement so whether it's the twenty two thousand and seven explain to me why the two thousand and ten contract between united and multi plan isn't the contract that would govern claims that were submitted by the plaintiff after that ten contract and my question is for you to tell me as an officer of the court why that is and the applicable contract for claims that were submitted after the effective date by this p and there were two contracts in force at the same time and it's because concern was later acquired by my plan that we ended up in a situation where there's two contracts that appear to be with  a rd party beneficiary i just want to clarify how the contracts here work in the st time talk that really matters is actually the contract between pacific air and its member which is the health plan and under this contract pacific care is required to reimburse out of network providers under whatever the terms of the health plan so under the health plan here different health plans have different terms pacifica has three of the lesser of the bill charges or the usual customer charges and irrelevant if you're saying that under either agreement your client didn't breach are their argument and i don't want to quote from the two thousand and ten contract which isn't in the record although in the twenty seven thousand case the court quoted from it their argument is that there are a rd party beneficiary under that contract and as a rd party beneficiary they are intitled to payment under that contract and if i'm remembering correctly the district court reason for granting summary judgment is to claim one hundred and eighty five dollars was that they weren't a rd party beneficiary under the contract they were claiming under leaves th agree with you that they conceded that but wanted to make an argument that it was the two thousand and ten contract and the district court said well if that's the agreement the statute of limitations even though it hadn't run they can't file it they can't make a make that very clear the pacific there does have the ability to elect whether or not to access the great and here we know from summary judgment on the record of the pacific area did not in fact access to its rate paid under the usual and customary charge which is what it was required to do the alternative way to look at that is that the civic care never breached the agreement and that is both on the basis of fact that they didn't access it alternatively on the basis that they did pay the reasonable in customary charges a district court didn't rule on that but the court has the power to affirm on that basis as well there's no challenge to the fact that it was a reason that the reasonable customary charges were in fact paid in this case and so we asked the court to affirm on any of those grounds as it is  and multi plane contract so you if the insurance company has a contract remote i plan to have a contract with the r p n where i would say here you take these claims because you have a better deal with this guy with this particular provider you process it and will share in the fees that's that's what's reflected in the motion to him and that's what i discovered so that when that you'll be came back and said this was a t r p and payment t r p and was processing it but it was pursuing two europeans contract with multiplayer and and i discovered it was multiplayer it was pursed multiply and contract with the insurance company that was then relevant to me which was quoted by the court in the two thousand and seventeen ruling and specifically contract multi plane actually made an express representation of the insurance company would pay and there was an agency theory that was being asserted in the nd amended complaint so there was no concession i appreciate your comp to the courts comments with the with the motion limited but we raised in the opposition to judge a tear oh it's in a footnote this is not the appropriate contract and it's not the more relying on but i do know that this is what they're bringing their motion on i responded to it and we didn't we were not able to argue anything else on that with respect to that i think that's it i really just wanted to explain we did access there was no determination by the  oh you never it's the sort of like optional language as to whether you're going to access or not our position is that once you access with a patient committee r p n or him or a multiplayer and that's the process you're supposed to use but the court never addressed the issue what happens if you change your mind you know later down the road that wasn't the basis of the motion and finally this language about and i may be wrong i sounds like your honour's read these contracts more carefully that i don't think that the like the language of they rely on as far as bailing out if they choose not i think it's only in the two thousand and seven agreement i did not see the two thousand and ten agree ok thank you counsel case just