did not fall within the confines of five zero to a three because while the court acknowledged that the funds claims were teed up as equitable claims the courts joined several of this court sr circuits  holding that at the end of the day the funds claims are actually legal in nature because we are seeking money just to stop for a moment the district courts finding is forcing us to live with an anomaly an arrest saw it for some reason the statute that was drafted to protect employer funded plans and  participants is being interpreted in a way where inexplicably employer funded plants like ours are being told that we cannot file lawsuits against private insurance companies for coverage disputes and it's weird because private insurance companies are able to sue one another every day of the week in state court in coverage disputes it's pretty normal but we're in a really bad didn't if we weren't allowed to come in under five o two a three in these situations it would literally incentivize private insurance companies to sit on their hands every time they see an employer funded plan in the picture and out i really do think this has gotten screwed up well iran court to look at your claims has ruled against you what they mean is or putting it another way you know what's different about this case from the other money is the case for money damages now we know the supreme court has already observed in bowen versus massachusetts that just because i an entity sues for money doesn't necessarily mean that they're suing for money damages or legal relief in bowen the plaintiffs were suing for specific relief in the form of money specifically medicaid reimbursement and it was argued that sense they were seeking reimbursement of money that they were essentially seeking money damages but the supreme court said no it's not money damages they're seeking specific relief in the form of money the very there they're just asking for the return of the very thing they were entitled to in the first place which is very distinct from money to d m edges which are actually compensation to substitute for a loss great west we think has spent over extended in all of these cases and it's important to note that great west was  case which where the court essentially said that it was basically like a preach of contract case because on one hand you had the health fund and on the other hand they were suing their participants and there was a plan in between governing the terms of the dispute here we have a health and welfare fund and a pretty much unrelated third party private insurance company there's no contract governing the terms of our unjust enrichment and and that's one thing that the great west court did instruct in where we're great last is very instructive here is they say in order to determine whether a claim is equitable in nature person it to five a to a three you if you look to three statements ok and here we look to the restatement of restitution and unjust enrichment and sections twenty three and twenty four indicate that the type of relief that we're seeking in these situations what an arse somewhat like you know it's restitution to prevent  someone is being unjustly enriched and there's no contract to point to so the parties have to rely on equity they have to rely on natural justice to resolve the situation well right but the plan language is in play as is the policy language of the defendant right yes in terms of the coordination of benefits clauses yes and if we it great west tells us that the type of the way you determine whether the type of real relief you're seeking is equitable relief as you know required by five o two a three  to look at the restatements and try and surmise whether your lawsuit would have made it through the door it as a typical cause of action in a court of equity back in the eighteenth century  and and we think if you look at the restatements this case unlike the actual case in great west would have made it through the door and we think that last the great west  would have acknowledged that the great west court even talked about bowen for example and said and had to distinguish the facts and great west from bowen and economics that one was a contract was not  contractual dispute great west was a threat why did you just arguing that the great west line of cases is limited to suits between the plan and beneficiaries or participants and not a fight between two insurance companies  coordination of benefits and to apply it to that new context is wrong it really is i mean that that's true but i guess and that is our position and that is the factual context of that line of supreme court cases it's always between the plan and a beneficiary or participant yes and again what the nomenclature is and so the equitable principles that it drew on are limited to that context we've got to third party payers yeah that's right and so you know the equity may apply a little bit differently in this context right and what you're it is what we're arguing the only reason why we we can't ignore a great west is because they tell us look to what eighteenth century courts would have done that applies no matter what but we think that you know we've analyzed this and we really think the sort of gotten in the into the door into an eighteenth century quarterback what it seems like a pure unjust enrichment action where there's no contract governing the situation our only hope here is equity has said before that congress doesn't hide elephants in mouse holes it's impossible to think that congress would have intentionally it please the court amy cassidy on behalf of the defendants which i'll refer to collectively for convenience as a fiduciary under arista sudden chill states is bound by section five zero two eight three two equitable relief money is only available in equity if it is in an traceable or an identifiable fund and it's the fund itself not the amount of the fund that must be identifiable the idea being that if a chunk of money passed in the hands of the defendant it should be returned to the plaintiffs that that chunk of money can be returned just like a non monetary object and central states tries to frame its argument in this fashion saying in their reply that they're just looking for their money back but that exposes the flaw in the argument there is no money to give back i just not received any money there is no identifiable or traceable found to be returned therefore the money f each of the relevant policies or plan language it may be unjust to permit the retention of that benefit why isn't this just a normal instantiation of and i'm just enrichment substantive cause  respect the last argument and restitution every measure of damages right because under great west and sarah bof regardless of what type of a claim it is whether it's unjust enrichment subrogation right but those w as it's a fight between two different chief third party payers who are also a mutual obligation to or at least a potentially mutual obligation to plan participants and beneficiaries i think the pen it's a question of you know who who is required to pick up that tab and if central states did it when the primary obligation was your client's why isn't that can for a little benefit unjustly because under five  three they are only entitled to equitable relief that's an equitable course of action and i think that what the court teaches in great western with this court recognizing reich is that not only the cause of action must be equitable but the relief must be equitable as well and compensatory and i think that was just a discouragement remedy right well and i think what the cases say is restitution can be legal or restitution can be equitable it can be equitable if it is returning that chunk of money that came to the defendants but if there is no chunk of money even if there is some kind of benefit than not to be returned then it sounds in law and it's a legal remedy and and while it might fall within restitution are unjust enrichment it doesn't fall within the equitable relief that so that they equitable claims and remedies was that limited to its context you know i think that they defined what is available in terms of money i think that they said that every says a carefully it's a ridiculous s careful we've written and that when money is being sought that money is only applicable if it is in a traceable fired or if there is a contract that gives rise to an equitable might mean that you're just repeating the holding of the case i'm asking you the limits of that holding and whether it's limited to its context or was the court purporting to cover the waterfront and tell us everything that exists under the sun in terms of equitable  rights and remedies substantive causes of action and remedial measures i think that it does limit what can be awarded when we're talking about money that unless there is a fund that the return of money is a legal remedy it's the classic legal remedy and that if it's not a fund that can be returned that i think that great western sahara buff does define what remedies are available and that other remedies can't be provided under a and it's for that reason that the money is being sought from the general assets of the defendants that the other five circuits have addressed this of all determined that under great western scarab off the the result is that this isn't a legal claim that central states as nervous a plan cannot obtain and the supreme court conducted the analysis that central states asked this court to perform by going into going into treatises and the restatement in centuries of case  law and and there's nothing about this case that would make it different to the central states argues that it should be different because there is no contract here but i think that just means that there cannot be an equitable lien by agreement which can substitute for the traceability talks about the principles that can be applied if there is an ambiguous language in a statute but the supreme court has repeatedly found that five zero to a three is i don't think us and provide allows for money damages only when they're in an identifiable or traceable fund so we think the principles announced in king vs pro well do not have application here but aren't those principles limited to equitable mean cases already in by agreement cases and  constructive trusts cases and that sort of thing rather than in this case which is essentially a claim for equitable subrogation i don't think so under the common law well i think that what the case of said is that there can't be a common law claim under five zero to a three that it can't be a separate claim what they're limited to is equitable relief and that regardless of what it's called if it's money damages it has to be traceable or it has to be an equitable even by agreement and i think that that's more in the domain of constructive trusts and equitable means but we're not we're we're talking about equitable subrogation which is an equitable basis for relief between  two third party payers and measure of recovery is restitution ery so why isn't that by definition equitable and it's explained i think in restatement section twenty four which i think is what you're is that while they're not suing your insured this is a fight between the two third party payers right they have a contractual subrogation claim where they say they are subrogated to our insurance right to see coverage from across that that's the subrogation claim they state in the complaint but if it were equitable subrogation under section twenty four which it's not the comments to section twenty four make clear that regardless of whether or not the claim can fit within that that restatement makes no comment on whether or relief obtained would be necessarily legal or equitable it's a two part test you know even if they could show that it is a equitable claim under the i section twenty four there must be also an equitable remedy and the restatement specifically states that it's not addressing that but it does state that we're talking about an instance where there's two people with independent obligations and it's just a money damage that they want to be returned which is not to fund that that would that would be a typically legal remedy so it's the distinction between law and equity that the supreme court is focused on that prevents recovery in the situation of of equitable subrogation for those reasons we believe that merchants great western sarah buff control the result in this case just like the other five circuits have recently found and with regard to a prospective d j the central states requests a declaration of what the priority of of coronation benefits would be for future cases believe they have not shown that there is any entry that is certainly impending which is the test under clapper they haven't identified any student athlete who is or has been injured who has unpaid medical bills which they claim should be paid by an energy company and haven't been paid it's interesting the sixth circuit opinion said that was ok or at least didn't  fifth circuit so that's not ok that's not right in the sixth circuit i believe that the insurance company did not appeal the declaration and i think what they're talking about there really is is in the instance of an unpaid claim a nation of benefits issue and some circuits hold that arisa preemption requires that the plan language be given effect in that instance other circuit was known unpaid claims not exactly known exactly we could look at the and the policy and determine coronation of benefits some circuits in that instance will look to receive preemption some circuits like the seventh do not like to risk the preemption and instead they find that or a suppression does not apply to private contracts and they enforce the coordination of benefits but that's where you're talking about an identifiable unpaid claim where you can conduct that analysis because there is no such allegations here several states depends on an affidavit which was not attached the complaint was submitted with affidavit states only that the affiant believes that there has been such practice and attaches to it for letters which disprove the assertion in one of those letters he states that has paid the claim an issue in the other letters it's states that it reserves its rights and asked for more information and further central states dismissed its case here as to six of the underlying claims on the basis that it had received reimbursement so the contention that there certainly impending harm because a i g has a practice doing and that has been addressed five by many cases as we've cited and as the great west case like that sort of a too bad so sad you know well the way it is well i think what great west was saying was that it basically is a separation of powers issue if they want to change five o a three and it's a limitation to equitable relief but the remedy is is with congress but as great west said you know it's not our job to find reasons for what congress has plainly done but it's our job to avoid rendering what congress has plainly done here and limit the available relief devoid of reason and effect so i think that that mandates the outcome that the district court reached and we asked the court to affirm the district court's ruling thank you  i think that it's important to note that the great west case was limited to its contexts it was a case where the supreme court took a good look at restitution in the was legal in nature it was essentially a breach of contract case this isn't anything like that this is a purely equitable action i think that's the key distinction here and the key takeaway that we failed to get across in the other circuits so if we are in section twenty four the restatement let's remedy section twenty four of the restatement  provides a cause to faction for equitable subrogation to prevent unjust enrichment and this court has previously held that if you can find a  comment actually notes that there's some ambiguity and it's not it's not like the typical subrogation that we know of that was like looked at in great last different states treated differently  essential you the same thing as indemnity in section twenty three only instead of joint and several course you're looking at two unrelated and t s that both all another part of the same money so it's a weird distinction and they still restatement does point out that it's not like the even though they use the word subrogation it's not the subrogation we all know right you've got third party it's the context that matters it's third party payor