awarding judgment to be happily we believe that actually utilizing the deferential standard of review required by the policies terms this quote should uphold united decision that its policy required mr brown to have insurance coverage in effect insurer insured west side benefit plan in the fall of two thousand and eleven harper decided that it would open up in a role meant for a new plan year to begin february want two thousand and twelve so in december two thousand and eleven mr brown or the proximity of the new plane year to february one's the date i can't specifically answer that question just cook only that in december two thousand leben there was a plan in place it was a hard for plan the details of which i don't know mr brown had the voluntary or the basic twenty thousand hours of coverage that was provided by westside he did not have any of the volunteer did not have any other voluntary well none that's the only voluntary the others not voluntary is it more you pipe up correct ok so i'm i interrupted you but i did i'm sort of one to know that whether february one was is a coincidence that it's the beginning of a new play in year or your honor since we didn't insure the plan and it's not our plan we're just the insurer of the subsequent plan year whether it was a it sounds like it was a plan that would have begun for whatever reason he by now knows a whole lot about the have been available well again you are just dumping move it forward we think to guarantee issue of the policy says it's either five hundred or insurance five times your salary or one hundred fifty thousand dollars unless you had which ever is less by which i was less correct unless you had insurance in effect with the product plan under the district court's decision that in december of two thousand and eleven electing thirty thousand dollars  insurance to begin in february two thousand and twelve the district court determined that was insurance in effect under the language of the guarantee issue that would have limited his insurance to thirty thousand dollars   about the to standard i mean there has been some discussion about whether the inherent conflict of interest would somehow alter the standard of review i think this court has plainly stated in fact in the huffaker case which both you happily and we cited we think the has rejected that and said you still get the arbitrary and capricious standard of review is the least demanding form used to give an extreme deference the court should uphold the decision if there is substantial evidence supporting the record even if it disagrees with that i don't think that's your primary argument say yes is that the standard you dictates a different result correct we took you off your game so if you want it back now that's fine because in fact i don't think there's probably a lot of dispute about that and i'd like to turn maybe to a little closer examination of the facts in light of the policy and frankly your honor to answer the question of why we don't know exactly how much he made the record doesn't have a specific figure arguably different profession than that lawyer so let's turn to the guarantee issue because we do believe that limits we actually think that gives us arguments on both side of the fence guaranteed issue which is defined at page fourteen to the ministry of record or page i d eighty four of this court record so if you're guaranteed issue amount is five times you're in new orleans or one hundred fifty thousand dollars whichever is less unless you were insured under a prior plan if you were insured under a prior plan your guarantee issue amount is equal to the amount of insurance that was in first for you under a prior plan before the policy date through with so he'll act of it the court thought that when said that you had it therefore he had thirty thousand dollars and therefore under the guarantee issue which says if you were insured under a prior plan you're going to issue is equal to the amount of insurance that was hear your final question on politics struggling with the difference between the elected covered i think probably the first issue for us subsection that an employer dependent who was eligible for insurance under a prior did not a let such insurance it appears to me that your argument is that it is a question of coverage as opposed to a question of election  i'm struggling with that because in these kinds of cases you live or die about what the language in the contract is in the language in this contract away correct it does and so how do you take that a la extrapolate into a cover requirement when all the contracts is that what frank i think our interpretation was rational a sense of it didn't necessarily contemplate that you would a lacked for a for a period of time in which the insurance never took effect again the the difficulty for me is that you are the master of the language that you selected in creating this contract and the language that you selected was not covered the language to the entity selected was elect and i don't see any question particularly in light of this record that mr brown elected coverage i'm looking at your references in the administrative record that refers to the amount of insurance elected was thirty thousand dollars the right voice recording under the determination that he aleck did thirty thousand dollars of insurance and the question then becomes what's what's the effect of the so called election that coverage  french's question first or are the language just say elected we believe that under these circumstances there perhaps in some circumstances our policy language we're not being vigorous but under this circumstance where there isn't a request  election for insurance the never takes effect at worst our policy language is ambiguous and this court has routinely held that if we provide a rational interpretation that this court will uphold that interpretation even if it doesn't necessarily agree with it vernacular you're hung with it i respectfully disagree or i think the law actually says if we drafted the natural and this court determines it's ambiguous and we believe at worst that's what it is then standard review provides that we get you look at the record there was never any thought on united states part of what the meaning was repeatedly throughout the investigation whether they talked internally whether they talked to west side whether they talked all to leader his counsel they routinely uniformly were interpreted in elected as covered in effect so if you may want to if you determine that that's arbitrary capricious that was how united uniformly and routinely interpreted that language but that actually is a segue to another point we believe the language of the policy supports the fact that there was no coverage in fact and there should be no award t but that's not where the court stopped and there is nothing in the record in fact the policy has repeated provisions that if in fact the thirty thousand dollars were an election  the policy that the release thirty thousand dollars was arbitrary capricious the policy limits the amount of coverage to thirty thousand dollars in the investigation westside pointed to the telephone call said he'd only requested thirty thousand dollars true north the insurance broker called it or said in a quote we'll have percent certain he never questioned him fifty thousand the district how could you have taken from  twenty eight dollars and thirty four cents every week without having his permission for the purpose of buying it's just ranch we did not take it from his paycheck westside irq west side made  him state west side provided three sentences to a shoot showed mr brown had nothing in coverage when the show mr brown had to have fifty thousand coverage on the two showed he had zero employee above him had one fifty on the one that showed he had the then my response to that is that the policy itself because we have to why it is the employer the policyholders responsibility westside has to tell us who is insured and for how much well we are not b by what they tell us the policy mr broker pays twenty seven and a page id number ninety seven before this court says the payment of premium does not guarantee eligibility for coverage because that's what happens here the employer has made a mistake we don't know we're not aware of it or have to make good forth their employee of on this amounts they took in there that when in fact when we notified the police we are denying the claim has already determined there is coverage it is still the employer's responsibility to tell us how much and we get to ultimately determine the benefit and so we're allowed to take a look at what the employer has said how much versus our view of the record and it was limited thirty thousand dollars i understand i'm way over my time i just want to point out that as we set forth in our brief there are multiple provisions in the policy that said if you started with thirty thousand dollars he would have had to have had an evidence  your argument counsel you have your brown's yearly salary with approximately fifty five thousand dollars a year and that's contained in administrative record teacher number two fifty three having had the opportunity to listen to argument and look at the administrative record myself  specific language in the policy because if the court were to look at that language in the policy it would clearly see that the abuse of discretion standard is completely irrelevant in this case this is this is a straightforward case of contract interpretation specifically and the focus of the questioning to mr carlson is the difference between or i'm not sure you discounting entirely the argument that the insurer has may interpret its policy not at all ok well i thought you said will solve the issues not abuse it is only abuse of discretion court needed to do with with regard to that interpretation is the argument primary argument i think correct and the insurer undoubtedly has discretion my point is that where the contract itself is an ambiguous where the plain language of the contract dictates a certain result that is necessarily an abuse of discretion to decide otherwise so go ahead for your interpretation that's what and and i think i think that's most clear we shown by the intentional decision to use the word elected in certain places and insured in other places and i take alexion to mean a decision to apply for insurance in the future versus being insured is having coverage in effect and i want to read the guarantee issue amount language that was referred to your guarantee issue amount is five times your annual earnings of one hundred fifty thousand dollars whichever is less and less you were insured under a prior plan mr brown wasn't insured under a prior plan he had only elective coverage under a prior plan what's the overarching that guaranteed  a much later in the policy this is about amounts is it not amounts one is eligible for it is i think it is both with respect to amount and with respect to eligibility for coverage whatsoever so i progressing down the paid and it's actually on the same page as the language dictating when evidence of insurability is required subsection specifically states evidence of insurability is required for an employee or dependent who is eligible under a prior plan but did not elect such an insurer and it's the inverse of this being the argument on which the district court relied if he had elected insurance under a prior plan that means that no evidence of insurability is required going up the page then to the guarantee issue amount language that further buttresse that by saying if mr brown were insured under a prior plan his guarantee issue amount was whatever the insurance was under a prior plan but he was never insured under a prior plan  because of that his guarantee issue amount is five times the annual earnings or hundred fifty thousand dollars whichever is less than the the intentional choice between the word away and the word insured dictates a particular result in this case and it is necessarily an abuse of discretion if the insurer otherwise determines that there was no  insurance even if even though the court were to determine however that mr brown was required to submit evidence of insurability again the plain language of the policy itself unambiguously requires united to seek that evidence of insurability from united of omaha and every reference in the policy to evidence of insurability requires specifically to their discretion as to what evidence of insurability means under your first argument based on his wife and the guaranteed a man out would not wouldn't even though he was billed for a policy that cover of what one hundred ninety one thousand dollars wouldn't he be limited to the hundred fifty thousand dollars of guaranteed the guarantee issue amount is only that amount which is required to be given initially without any evidence of insurability the insurer has discretion later to request a bit and so insurability so at the outset mr brown applied for thirty thousand dollars of insurance which is obviously less than one hundred fifty thousand so he's he's clear within that policy provision later when his insurance amount went up to one hundred eighty thousand dollars how did it go up though the administrative record is silent as to what happened with i'm interested in the verb that it will go some how it went he it can't be it just can't happen like that the our argument is that he intentionally applied for an increase in insurance in the absence of any evidence of that there is there is no evidence other than the fact that he subsequently had withholdings from his paycheck in the amount of approximately twenty dollars and never objected to that withholding it if if mr brown had not applied for an increase of insurance he would have certainly objected to it a seven fold increase in his withholding for voluntary life insurance and the absence of any submission of evidence of insurability isn't fatal to this fact because again throughout the policy united of omaha has the discretion to require or not require evidence of insurability for example and this goes to united of omaha's obligation to determine whether it be insured is eligible for insurance on the administrative record page nineteen the policy states for any increase in insurance we will use the policyholders records and or premium we have received to verify the amount of insurance being requested is the appropriate insurance amount for which the insured person is i would have to receive under the terms that the policy policy itself creates an unambiguous obligation for united of omaha to confirm that the insured is eligible upon receiving the premium they received this increased premium for eight months wonder but the mechanics of that westside ducks and when does it submit to the administrative record it indicates that the premium payments are remitted monthly so for the whole census so to speak that sent the that or the administrative record isn't entirely clear as to what the sentence what the sentence censuses i'm sorry entail and what they describe we basically have a lengthy i i cannot tell based on the record either way correct and in any event the the amount of withholding in the census does not correspond to the hundred fifty thousand which is listed in fifty thousand dollars of insurance as we showed on the census but that was not the case the the insurance withholding i'm sorry the premium withholding is equivalent to approximately one hundred eighty one thousand dollars worth of insurance that figure appears nowhere in the census and there appears to be no rhyme or reason based on the appellant's theory as as to how that happened or why so would is there not a possibility that the amount of coverage over the hundred fifty thousand dollars if we assumed that was the maximum of a level with evidence of insurability under your argument would determine that equitable i'm sorry in the event that a wrongful denial of benefits claim is inappropriate in this case which we obviously disagree with i think there is certainly an equitable claim for either part or the entire amount based on the fact that united of omaha received these premiums for eight months had an affirmative duty to confirm that mr brown satisfied their requirements and never did so as you started your argument you said this is a contract interpretation yes so what you're arguing now is this equitable argument  rationale seems out of keeping with that and and i have the answer if you would please whether or not i'm correct in my understanding of this appeal that the district court dismissed the equitable aspects of your of your client's claim i'm not positive that it is entirely clear from the district court's record well if you're not as positive today how are we going to get  well i can i can answer your question in that i think it's ambiguous it's not that i don't know specifically it seems as though the court was dismissing the equitable claims as moot and the injuries so with with the decision of the district court that again this is a straightforward issue of contract interpretation it's an unambiguous wrongful denial of benefits that  need to address the secondary equitable issues so my argument is merely in the alternative and i think this is a straight forward issue of contract interpretation but in the alternative if the court disagrees i think the court nevertheless hertford never technically went into effect that's the court i think the court made this argument you're you're apparently didn't make the argument that the court did that that's actually  for judgment on the administrative record so that is the ground on which the district court relied and that was the primary ground that that we argued in that motion  but nevertheless courts the court's view that election equals coverage was an argument you made correct and specifically even a response of pleading is that where you're telling me i'm looking i'll be looking for that ok and the citation is in the brief so specifically that the difference between election and coverage is key throughout the entire case but even if the court decides that that is not a relevant issue and that the united of omaha is correct in its interpretation or in the very least that united of omaha didn't abuse its discretion then there is still this obligation that the policy creates to seek out evidence of insurability and to determine what specifically is required for evidence of insurability because surely the policy doesn't contemplate that mr brown go and seek his own doctors opinions and go and seek his own medical records without any prompting of united moment through a series of errors no one this we didn't come to light obviously until mr brown's untimely death threats that's correct so it's this series of errors but then people start sorting it out that's correct the census is wrong the amount is wrong you know yeah and the defense seems to be that united of omaha shouldn't be liable beast on a string of theories that amounts to gross negligence as as far as i can tell that  mr brown was under fifty thousand with the coverage we don't believe that's accurate we still don't know what that's that's correct correct additionally i had if i had the fifteen minutes i did the math fifty five times three is one sixty five that doesn't come up with a guaranteed issue either i think it is been relatively undisputed there was no evidence of a request for anything other than thirty thousand dollars again was citing reviewing its record said he asked for thirty thousand dollars the broker said we are one hundred percent certain he didn't ask one hundred fifty thousand dollars the broker goes on to say you know there are problems there are errors in the census we do need to get a figure out mr brown was likely the only person in that same circumstance and because we are accepted and we are allowed to because the policy page three the ministry of record page seventy two page i do so only three of this record says quote the policy holder is responsible for keeping the following records persons that there might be some other relief extent that there are gross negligence that may be in a three claim against west side if you understand judge stranger dissent and i pronounce rush hour rochelle  requiring kind of a fiduciary responsibility on the part of the company the premium for coverage rests on the concept if you allow the insurance that would say to a company no you can you can take the premium and never provide the coverage and simply return the premiums doesn't incentivize in proper  we disagree and i think actually that was not exactly on this particular issue but i think the courts the supreme court's russia now in the glen case which stated that actually insurers will not be incentivized to conduct their business practices because they are going to marketplace they have competitors and they have regulators and if they were in the business of incentivizing practices of essentially unfairly taking money they would lose in the marketplace and they will lose before regulators i think insurers have attempted to protect themselves by putting the responsibility on the employer which is what happened here the policy clearly and unequivocally makes it the employer's responsibility to tell us who has insurance and how much and if there's an error there it actually is the employer's issue not ours thank you very much for your time the court will consider case carefully issue and opinion in due course we'll have the next case please