case this morning is fleischer versus sand month fifteen hundred dollars a month yes for accident or injury or actual accident or illness i'm sorry dr fleischer received this policy of purchase policy through the american policy from the standard and that was doomed employer which was ended on a limited that policy paid ten thousand dollars per month for disability for illness or injury he applied for benefits for both and he was approved for benefits for both however the standard insurance policy the policy to pay the ten thousand and under there there are provisions for the doctor the income they reduced his monthly benefit by fifteen hundred dollars the amount that he received from the north american policy the operative provision is under don't duck the income is reducing for another group policy the scanner has interpreted their policy and the north american policy as being a nother group policy what the facts are with regards to the policy that he received and he received the policy which is included in the materials th policies and my question was did he actually receive a what i would consider to be a policy or simply a certificate well and you did receive a letter from north american should describe what the coverage was but you could have octane the policy if there's a it talks about being not cancel a guarantee renewable it talks about the benefit provisions surrendering what happens in if there is military service it does have every provision in there that a policy would have so a group policy and then it gives a policy number that's the only place and you go ahead that's the only place anywhere in the certificate that refers to it as a group policy and your that is correct where does that come from were disfranchised edger into the field well there was a there was a the court the district court looked at apple bomb on insurance underwriting which is distinct from the policy at issue here in that it was individually underwritten attached to the policy is the application which shows that it was there was a health questionnaire that there was a retail credit check that was done the district court there was not well your honor to be the court instead of dismissing the amended complaint based upon the fact there was a pretty procedural regularity and so on the merits of the case now one other allegation a favor or you as we are required to wonder our standard what that is a very good question your honor it's our contention that it should not have been a dismissal but there should have been some some discovery that was done in order to obtain information that the standard relied upon in rendering its decision also we did not we were not able to engage in a thirty six witness in order to determine if there was any bias involved here other than the structural conflict that the standard were your honor with regards to the group policy but attempted to get that from north american however since since they were paying the premium i'm sorry they are paying a disability benefit and certain tension that they are not not have to provide us with any information party didn't didn't give it to you you i mean you have to bring it to your your pal and you have to bring a case before us with all the information there it's your honor however since this was dismissed on a motion dismissed we did not engage in any discovery there were no subpoenas that were authorized or issued by you in the time of try not at that stage it was soon as the second many complaint was filed a motion to dismiss was filed in the judgment was and you can have fun and you could have means i'm sure that there is an inherent structural conflict that the standard is the person who makes a determination as to whether benefits are paid and also the entity that pays the benefits out of its own i'm sorry i didn't hear what you  sorry what i said was that we did raise the issue that the standard that there is a structural conflict inherent structural conflict in that the standard is the party that determines whether benefits are paid and that they throw those benefits out of their own funds and  standard was the draft this policy that it should be construed as a contract and that's against the draft or of the policy yes your honor however that that them that that argument was dismissed as well as it's decided if he says decided under rissa correct correct thank you thank you dr fleischer both in the case below and in this appeal has stated on several occasions that he has an individual insurance policy with this other insurance company called the north american company for life and health insurance and indeed the document that he contends is this individual insurance policy was appended to the amended complaints and if you study that so i don't understand why we were told that they didn't provide it and let me explain i can i can get to that the if the court examines this document that was  pended to the complaint it will determine very easily that it itself is not an insurance policy as judge from ascii picked up on it is a certificate of insurance and indeed in the first few sentences that document it says that the member dr fleischer is entitled to participate in the group policy that was issued to the american refers to the group or master policy that is in place and then there are various provisions that follow that refer to dr fleischer's right to participate in this group there is no individual in the seans contract running from north american to dr fleischer dr fleischer has a certificate the allows him to participate in this group policy that was written to the entire association for its members and i think that the district court a local rec league determined that this is essentially what's called a franchise policy which is a variance or a subset of the term that the doctor would have paid ten thousand dollars premium on ten thousand dollars for the use that he had that policy no matter what you quote which was about four years before the  north american policy without recently any benefits at all not a not exactly your honor because the way the standard policy is written there are on sets or reductions to coverage but there is a minimum benefit available under the standard policy what is the minimum benefit that i do not recall it at the moment and i know the maximum was ten thousand dollars as well which is the gross benefit that dr fleischer was entitled to it was reduced by fifteen hundred dollars a month to reflect his benefit under this other coverage and that's why i understand that but if the other coverage was ten thousand dollars yes why i understand that that was still a minimum understander such as one hundred dollars or a thousand dollars that he would get despite the fact i believe that is correct or are there but we don't know what that minimum amount is it is in the policy we in the group policy which is in the joint appendix on long term disability right yes i think i believe the earlier some of the older policies typically pay benefits until age sixty five the more modern ones pay benefits and told social security retirement date which i believe is now about sixty seven so and which one is this this is i believe the benefits on this potentially payable up to age sixty seven but again i will determine that  on iran or at there is one additional misstatement that i had that i think was made i like to clarify that mr swift suggested that the group policy issued by north american for life and health is in the position of standard insurance and was not turned over it is not in the possession of standard assurance i do not have that well who has it i was soon the north american company for life and health insurance w certificate of insurance that refers to another group policy that is not even before the court don't you think we would have all these things before we are cooled on to reduce all certificate it is an individual policy so standard aired in subtracting my benefits and on that complaint as far as a complaint went we believe the district court correctly said no what you have there is a certificate of insurance which is evidence of your participation in other group insurance so based on what you say in this complaint we do not see this matter surviving as a matter of law and i'm looking at page sixty one of the joint appendix and could the minimum benefit be as little as one hundred dollars it could be if that's what it says minimum l t d benefit one hundred dollars yes because please understand dr fleischer himself did not enter into an individual policy with standard as part of his employment he was given as a benefit of his employment coverage under the standard group policy and the standard policy is quite clear if you are receiving other benefits from other group coverage your benefits under this coverage will be reduced to paper there's no honestly know i don't believe that policy in the case whether it be it is contributory by the by the employees or whether it's entirely employer funded and the other talking think but go ahead now you don't you think that these various terms that we have been throwing around those morning should be defined in something intelligible way so that an individual would know what the risks and benefits  in the policy so that an individual knows what he's got me and my response to that is i think the term group policy is sufficiently clear to encompass not only what we would consider true group policy but the other subset which is a franchise policy i want to get back to the language that you know i'm looking at it my understanding is that the amount paid by standard is reduced by any amount you receive or are eligible to receive because of your disability under another group insurance coverage correct that's the tack term group insurance coverage or other group insurance coverage correct and that terms know where to find it is not defined in the contract but the standard here is whether or not the decision was arbitrary and capricious that is correct and i would go beyond that to say that there are in the policy exemptions and deductible and in the exemption say if you are getting benefits from another individual insurance policy we will not reduced and i think that the judge in the district court below properly considered the deduction for other group insurance coverage as well as the exception to that for benefits received other other individual coverage he concluded that  the certificate assurances that best evidence of part and some group coverage and standards decision was correct let me emphasize that there is a star a differential standard of review at play here  e docter fleisher challenge that in the district court district court rejected that challenge and that is not contested in this appeal and you get your question earlier judge gar yester court on its own raised this question about whether there's any bearing on the fact of the conflict that standard pays benefits as well as adjudicates claims and the court the district court noted that the question here is not so close that conflict of interest would affect the results of the course determination please bear in mind under glenn the u s supreme court's decision and glenn and also in conkwright even if there is a conflict of interest that does not alter the standard of review which is deferential under the third circuit precedent under the deferential standard of review the fundamental question is is standards determination here reasonable and the district court determined because this policy is a franchise policy which numerous legal commentators refer to sometimes interchangeably with recovery that the determination by standard was not unreasonable it was reasonable and that's why the standards motion to dismiss the second amended complaint standard pointed out that that complaint had not been properly filed it to repeat plaintiff father complaint standard move to dismiss  second amended we again move to this in the case was determined on that motion to dismiss the second the man a complaint and the judge will though did note that the second amendment complaint was improperly filed but proceeded nevertheless to determine the matter are you seeking from us well your honor the relief that i would i am seeking that which we put in our appeal is a remand back to the district court to allow us to engage in discovery and to fully explore the issue of whether or not that this is a individual or a group policy subject offsets any alternative i would ask that the court determine today that this is an individual policy this is one that is that the american policy is an individual policy that whether or not it's ambiguous and there are two possible interpretations and one of which is it's a group coverage or a group insurance coverage and we must affirm i'm sorry could you say that again yeah if the term is ambiguous the term know the group insurance coverage is ambiguous and standards interpretation is one of two plausible interpretations reasonably possible interpretations we must affirm correct or wrong i agree with that standard however i disagree that th patient was a reasonable one just to get back to the standard policy you would ask the question as to whether or not this was a contributory policy or noncontributory policy standard policy when i ask i'm sorry just start dr fleischer did not pay premiums to the standard policy is a noncontributory policy and again judge court as you said there is a minimum benefit of one hundred dollars for that policy one thing that you did say judge garth was that the  the standard for the north american policy had predated the stare policy by four years in fact dr pleasure paid premiums for twenty three years before he got the standard policy so he premiums from one nine hundred seventy nine until two thousand and two and up until two actually two thousand and three when he became disabled on that north american policy and he does not get the benefit of that bargain because the fifteen hundred dollars is being deducted from his benefit every month by that standard now with regards to the information that the standard has in its possession i would refer you to a letter from from the from the reassure america who is a third party administrator in this case they say that they provided the policy to the standard they also said they had discussions and again they say that this is an individual policy and they would be the people that would know they're the ones who are involved with issuing the policies they're involved with underwriting the policies and they administer the policy and they've stayed in their letter that this is an individual policy and that they treating they are treating all aspects of the policy as an individual policy unfortunately the judge sort of ignored that or give short shrift in the district court but i think that is that is very important from asian that the person the issue or the entity that issued the policy it considers it an individual policy and again individual policy in the standard policy is not a defined term it's another term it's not defined let me ask you this question what discovery would you need to undertake in this case if we went back what would want to get another copy of the claims file number one from from the standard to see whether information they got from reassure america number one issue subpoenas to reassure america or north american coffee and get copies of  without having done any of the crap or are you rather we did ask the shore america for information however since they were paying the claim they refused to give us any information from their files then did you did you fi indicated previously we had filed a complaint and emotion dismissed was neatly filed we didn't even get into setting up your skull or didn't somebody didn't bother to open the file you didn't talk into it you didn't try to make that discovery look at detectives and teaches testimony it is clear that the violation in this case was deliberate and i would point to six different aspects of the detectors