court my name's keith already and here representing tammy briscoe who's the appellate like to start this morning with a little hypothetical based on the trial court's footnote at record page twenty six resulted in reading sections in isolation so i'd like you to soon that i tell my reading group that they're going to have to read ulysses next month but i tell them don't worry because i'm going to provide you with a summary  language that's understandable by the average planned participant and you can see those requirements at twenty nine u s c ten twenty two now here's a variation on that suppose that my summary ulysses description is simply a second copy of us it's an identical verbatim copy that's what happened in the cola carries and the court case decided that when reading the certificate of coverage as a plan summary it had to resolve the ambiguities in favor of the plan participants koehler noted that this problem was created by the insurer who made the quote information about james joyce the publication date of a novel the history of the phnom refuse litigation over the novel but when it came to the part where cliff notes would summarize each chapter and violates not only arista it violates basic logic a summary cannot be identical in coextensive with the document it's intended to summarize you listen cannot be a thought the essence of your argument cliff notes aside or everything was that even though the the there was no active at work the deeming clause that says accrued vacation pay deems it to still be work was your argument well i think that that is that is the argument that i think we're ok with no if that's the argument i guess the first question presented in a footnote in their brief is that you had didn't present that to the plan administr would just what's the best record site for where your argument to us that accrued vacation pay extends the time of the june check contemplated we had those days where  the fact that the checks included pay for vacation and yet they don't address the argument a where did you present the argument well all i think that i think we've made that argument  beneficiaries presents to them evidence of vacation pay as as part of that i don't know that the beneficiary has to write a long brief on this is supposed to be an informal process again i'm just going to ask you for records say where was it represented to him that the vacation accrued would extend his terminations where in the record we have anything like we'll use well you know i think because certainly phrase policy holder approved and what better way for a policy holder to approve vacation then to pay for it that it's paid for because it's accrued but it's not the extend the time when he's there under the supervision of the employer well i don't think the policy has the word used in it either as think of it as the phrase time off be covered then because he was he was off coverage what's the difference between post pre term innovation vacation and post terminations education those four days of should have to be vacation that's all it tells us and the policy holder approved vacation in the again it was approved it was approved for purposes enough and in a number of the cases do that in the page case it's very clear there that they adage twenty two days of accrued vacation to the last day at work oh well you know in some of those cases in the page case it's not clear because there is not a southern district of ohio case correct correct it's not clear but it appears to me that that was part of the plan and that is one of two things it was either what you're looking for explicit language saying that accrued vacation time can be considered a policy holder  approved vacation or it was the way that the administrator read the clue and we think here the administrator should have read this plan to read adding on a period of employment it's just accrued vacation time but i think that goes back to the word deemed to mean this is a legal fiction of the employee who lives off work on the weekend he's that phrase should be sufficient should also be read to deem mr briscoe's vacation time to be time spent actively work i think i'll say terminated the premium payment ended and did the insurance coverage and he died more than thirty one days after that date met life can rely upon the employer has of addition of the under the plan is a one b the plan states clearly that your coverage and the date of the employment terminates there were evidence in the record saying that he had been told you'll stay on the books for a while longer then we would have williams and at least ambiguity do you agree with that sort of gained twenty seventh twenty thirteen the record at twenty one fifty three and twenty one sixty three two pages that the employment had ended the premiums at end and then the insurance coverage asking because they rely heavily on the southern district of ohio just a court case and are williams case but i don't think you discussed those at all but you you stated that their argument was purely the language of the deeming clause but they do rely heavily on the logic of those two cases so really i just love you to address cases you chose not to address that they'd argue because here the facts are there are multiple pieces of evidence in the record post a cation past the judge of the employer course he wasn't still actively performing anything but then the language goes on to say but he will be deemed to do so if he isn't at a weekend or on a policyholder improved vacation they argued are two separate contingencies one contingen if you terminated all of the dominate over done thank you very much you're done he was involuntarily terminating the other contending team could be a situation where you were on a leave of absence and not actually terminated but there would be no reason to do it the record is clear not created at the moment of terminations only but it's emanation a couple of weeks later a year later there was also a follow up letter from the employer of two to seventy six situation where you could say somebody on a friday june thirtieth is you're fired then all this saturday and sunday well that's a week and then you've got the four to divide week in the business closure oh and then i have a year and a week vacation so i'm really the employer ended benefits at the end of the month of the vision and in the medical and in the the coverage under the terms of the plan david determination did not continue reading of the terms of the plan and that life is the d c area has an obligation to adjudicate claims for benefits pursuant to the terms of the plan solved according to the plan the employer for more than a year later says not employed much just quickly on the question of claim exhaustion there's that's all the research requires is claim exhaustion and it does not require theory or issue or argument exhaustion all that employee employer relationship of the defendant says did not continue well again when something is deemed to be something it is a legal fiction the employer employee approved vacation he didn't ask for vacation he didn't take vacation they paid it they paid for it they don't wouldn't pay paul q lated his final employment by giving him his pay for the days that he did not make age well i think that again the the phrase i think it was approved vacation i think it was fictitious vacation just like the weekends and everything else and i think it could be applied ulysses and an analogy i think the world according to garp would be well appreciate that and i believe when when the defender was up he said something about premiums being paid or something if the court is concerned about the premium issue which was really not briefed by them cancellation arguments that the policy was canceled you know if we were on to what was raised when it was raised metalized denial letters and their amended answer neither of those state that the coverage was cancelled they always say that the coverage ended pursuant to the terms of the policy so this would be a new post hoc argument under robertson v at the life insurance for forty three f third three eighty nine courts can consider only the actual basis on which the administrator denied the claim not its post hoc rationalization here again i think the  then to go on about their evidence of cancellation in the in the napoli case there was an absence of positive evidence in this case we got a much stronger case because we can show in the cancellation edition that there was no notice of cancellation that mr briganti said the policy ha lapsed in the denials and the answer is i've already noted they don't claim cancellation in the city if a kid in the policy do not provide for cancellation the collection of previews clearly continued after his death that if they can't if you can't be on vacation now for is terminated how can they continue to collect premiums for you are that it will pay for the period after he's deceased