that doesn't grant discretion and in particular the m b guity of certain terms especially the term salary which is one's average previous ability earnings it is calculated using a base rate which is a thousand dollars per month for withrow and her her commissions and in this particular case while this definition is unambiguous for in certain respects it isn't didn't find anything in the record that suggested that your client was anything other than employed from nine hundred seventy six through a period in one nine hundred eighty six is a mistake misunderstand i didn't five he stopped working as a result of her back pain and he underwent a spine surgery and but she continued to receive benefits under a long term salary continuance insurance policy no actually the long term salary continue its policy that was a comment made and one of the briefs however that was a nine hundred eighty four letter and i refer the court to excerpt of record fifty and seventy three it's an october nin hundred eighty four and it says under the terms of your long term salary continuance insurance defines disability in a certain way that policy was updated amended many provisions were deleted yes standard but it didn't seem to me that it was the long term disability plan they're after applied for in fact it was a different plan it was a long term a continuance policy where as when she finally quit in december of one nine hundred eighty six and didn't go back to work then she applied for benefits under the long term disability plan that's correct and provided by reliance but it didn't seem to me that this was the same plan back in eighty two to ninety five well it was it was different now the original post different than  providing it was reliance providing it back there for the long term salary and in fact reliance had gone through several permutations of its own name just like bucky healthy dead well i was interesting to me because it seemed to me in fact there was as of january nine hundred eighty six the policy was amended and substantial respects the total disability yet condition was changed the benefit amount was changed to five thousand  dollars which is fifty percent of the pre disability earnings the time period that was limited under the rehabilitation benefit rehabbing when you return to another occupation then they have a formula how they paid that used to be limited to twenty four months and the amendment six which made it was effective january one thousand nine hundred eighty six is what changed all of that and then there's a schedule of benefits  those are these two different disability policies just ways in which the employer chose to finance the payment of salaries of those within its employee who went on disability yes they would be different and and the amendments show the different set about what i mean is that's the way the employer chose to finance it it insured against that that's correct it doesn't change the fact that she remained an employee yes right so is a slightly different analogy if if she had become pregnant without a pregnancy she would remain an employee if she had an audible bill accident and she was out for several months she would remain an employee even though she may continue to be paid under the company's policies or under its practices well that there is a difference which really was not raised in this case and that is when you go out on disability at total disability you're no longer considered an act employee but if you go on if you're on vacation if you're on a weekend you're still considered an active employee is the term active employees have particular meaning in this case and know why no i don't find it in the policy so the term active employee or an active employee doesn't mean anything in terms of whether the person is an employee of the company correct it just means whether you have to be an active employee in order to obtain coverage to begin with so  there are certain requirements i mean i may ask you another question you seem to think good salary is the is the worry is the worry is the ambiguous word if you will if i read in the schedule  benefits under the schedule of benefits it says that the schedule amount is equal to sixty percent of the monthly earnings not salary  subject to the schedule amount of five thousand dollars why is salary the problem because salary is what determines the  finances what determines the amount oh the schedule amount is the amount equal to sixty percent of the monthly earnings yes and all parties and the district court have understood and agreed that the maybe why didn't we fight over that because i mean i'm trying to look at this policy and determine whether it's ambiguous or it is an ambiguous and frankly that's what i'm thinking you're arguing to some extent so i said well first of all i've got a monthly earnings here and i wonder how that figures in the salary then my next problem was when you went to trial in this case why did you go to trial about the well the the if you want to call it the linchpin it is the  definition of salary clearly fat well just how ok now answer my question ok what was the trial because it doesn't seem to me that you'd have a trial if you have a clear and unambiguous halt and yet it also doesn't seem to me you'd have a trial if i'm going to apply the doctrine of reasonable expectations because it would seem to me that in that situation which you argue there be no reason for the trial it is automatic application of the doctrine but i didn't see you object to the trial i didn't see you say we can't have a trial so i'm wondering how in heaven's name the doctrine even comes up that particular doctrine was raised not only at the trial but was just one of the four that came in and it doesn't seem to me you're answering my question when i've interpreted these contracts before if they're ambiguous and i'm going to construe i'm against the company you don't have a trial however if in fact there are ambiguous we're arguing about what the terms of the contract are then we have a trial we had a trial and now you want me to construe the terms against the insurance company i'm wondering how you address that with the court because there have been no reason for a trial well the other side the defendant believed that they made a reasonable interpretation we believed that they did not make a reasonable interpretation to object to the dry no the court's own was the court determining then and then i look at the doctrine of reasonable expectations was the court determining whether it was a reasonable expectation of the insured to put the policy as you want it put interpreted was that the courts was that the courts job the because the doctrine of reasonable expectations will not allow me to necessarily apply what you want applied unless it's reasonable correct so are we having a trial about whether it was determinations then i can't do those unless they're clearly iranis the nocturne a reasonable expectations would not be something i'd even impose if the chord in its factual determination determines that there's only one reasonable expectation for the contract one of the problems with a clearly erroneous standard of review when you have a contract interpretation which is an issue of law to be reduced not it's an issue of law if it's not ambiguous but if it's ambiguous then you take facts you take both sides story and  generally if i ply the doctrine of reasonable expectations i don't need to drive i'm sorry this instant i don't need a trial i just say whatever you say is it but if in fact i have a trial must have been somebody thought that this wasn't a reasonable expectation what you're alleging we should do and so the court had to make that determination and the court made the determination that what throws understanding of the contract when applied to her particular employment circumstances was not was not reasonable however ok and then i have to apply then i have to use clear air time and do that right with a very close scrutiny of the record because the adopted those findings that the defendant gave him wrote broke a can i say that it is clear air when the plan says only time when a period of less than twenty four months could be utilized was when the employee was seeking benefits had been employed less than twenty four months yes because what that what they did because there's nothing in there that says anything about any period of time less than twenty four months unless i can say the employee was not employed for less than twenty four months it says take the base salary plus the average commissions during the preceding twenty four month period it doesn't say you have to have twenty four months it says take all the earnings during that period or from the date of employee but just a minute it says take the base salary plus the average commissions during the proceeding or from the date of employment if employed less than twenty four months so i've already found out the date of employment was some back somewhere back when we started this approach and then we've found that the data if you will incapacity was a certain date as determined by the court after taking evidence so i have a clearer determination and then i have to say well what's the twenty four months i'm having a tough time saying why it's clear error what the court did unless i say he should've given you less money than you got because it seems to me he should have taken the months you were and the months you were out on this long term disability plan and given you that if you're taking an average salary during the during the preceding twenty four month period after let's say she worked two months or three months and she worked as she earned a thousand dollars for each of the months and commissions of ten thousand dollars so ten twenty thirty so thirty three thousand dollars and you divide that by twenty four at most all cases that i've read when you have an employee who either gets a bonus that's affected her outside the right right right but if you get a bonus for an effective period or if you make earnings it's usually prorated for the period in which i thought you already agreed that the insurance company rather than the employer chose to finance sol repayments when an employee was disabled through an insurance policy right yes so for purposes of our consideration what she was paid during the period of disability was compensation from the company was it not because it paid for the insurance policy to fund payments to her while she was disabled disability benefit i don't well were an insurance policy here in the language of the policy the question is whether it is reasonable when she was employed as you have conceded during the twenty four month period before she finalized  how can it be reasonable to take thirteen months when in fact she was employed during the entire twenty four months and receive compensation from the company admittedly paid by the insurance company which was paid by the employer as a way of funding that because the definition of salary says to use commissions and the base pay that the person was receiving from the group policy holder on the date of partners a second part of it and wash up well either one or or from the date of employment if employed less than twenty four months which races which does raise the issue of whether the word employment itself is ambiguous and we did address that in our by the way i apologize i he's such a part of the family at this point and i neglected to introduce our colleague judge wright lambert from the united states district court for the district of columbia former chief judge there chief of the pfizer court i believe as well we are smith and i are honored to have him with us today like i say we're so used to having him here that we just take him as part of the family so i apologize judge introduce you before i leave to see thank you may please the court victoria fuller for the bash healthy stewart shield cellar protection plan and as i plan for this argument my main focus i had intended to present was why this isn't ambiguous in light of miss with those arguments and it's really the argument that reliance was required to look at only thirteen months and making its average calculation and  analogy would be if i were representing to this court how many times i've argued over the past twenty four month period and if i had argued five times in each of two months but not the rest of the time then i can't take my ten arguments and divide by straightforward but if it is ambiguous that miss withdrawals proposal is unreasonable possibly ended there that i guess you could take it either way that you do you could say he was employed during the entire period so less favorable to her but you could take number one proposal which was just take twenty four months and give or that or they were actually very nice to her by saying well now we're out we're going to skip back we're go those argument would be even worse and that would be for alliance believes that the disability earnings shouldn't be included and i believe this with who has made that concession then if you look at only the twenty four months without the disability or innings it would be even worse because then you divide those thirteen months of commissions by twenty four and then she would get a benefit of about a thousand dollars a month less than what she's gotten well evidently the during that trial for believe the policy was ambiguous or they hear so he didn't find it was ambiguity after he had the drywall is that what you're telling me i would argue that what the court did was look at the evidence and then the question of ambiguity is are there two interpretations to which the term is reasonably susceptible so the court looked at the interpretation of reliance and the court looked at the interpretation of miss with pro and ultimately decided that the interpretation in this with her was not reasonable so i would argue that it imply a legal counsel there was no ambiguity and sorry  and i'm not sure that's what happened in those either i mean the bottom line is i was trying to figure out and that's why i asked her the question either is a trial court thought it was them big us and could have the blood the doctrine of reasonable expectations to cure the abigail woody or the trial court said hey exam big us and furthermore i got to find out what's a reasonable expectation of the insured and so i'm having a trial where upon he decided under the doctrine that what the insured was suggesting was not reasonable if there was any determination on the part of the district court that there was an ambiguity and absolutely the district court did find the ms with rose not only is she saying that reliance was required to only look at the twenty four months right before the date of disability she's also saying that reliance was required to average only thirteen months but nothing in the language of this provision supports that i would argue that the language to e r one l four can only be interpreted as requiring reliance to look at a twenty four month period and average earnings by divided by twenty four to specific language says the average commissions during the preceding twenty four month period it makes no exception for months in which earnings were zero and it certainly doesn't say that you can average any calculations but the reason that does not necessarily mean that this was ambiguous is that reliance was doing exactly what we want insurance companies to do what we want their employees to do they gave full consideration to ms with both claim they put pen to paper and they puzzle that through and if at first blush something else might have made sense that doesn't mean necessarily that that was actually what was supported by the plan and certainly if conduct like that is going to be an admission on the part of an insurance company of an ambiguity then there would be an incentive on the part of insurance companies to make sure that their employees are not giving full consideration to their insurers if if they were punished for having taken this more liberal approach then you would have to say that no good deed goes unpunished absolutely i'm absolutely when i look at the date of the disability i have to give a  clearer view correct yes you're right so what are the best indications in your argument that the date of the disability is that the district court has determined the date of disability w determination in the file there's just notes in the file on this to the effect that ms with rowe began earning california disability benefit and march of one thousand nine hundred six so those were the the evidentiary grounds that supported that finding and i s it that particularly in light of the letter from miss with her own doctor that the district court did not clearly err in agreeing that the appropriate date was in march of one thousand nine hundred six so what is the best evidence that i have five e r nine fifty three in which there are there is an employee noted there is a discussion it looks like between two employees as to whether reliance should look at the preceding calendar years or whether they're looking at the twenty four months in an aggregate and hundred eighty two right and there's no indication that ms withrow was making an inquiry at that particular time i believe she came back in one thousand nine hundred eighty and first made that inquiry so this particular document would at  least i'm not sure that would be pertinent to the initial determination but at least in terms of how reliance interpret it later on when when ms with i was inquiring either in one thousand nine hundred and two thousand and two that this document was in existence and it doesn't appear to be in response to her inquiries does it matter whether the well i the only thing that i think it really pertains to is that the district court did consider mr fisher's observations and i think the district court also considered some of these other notations in the file and ultimately determining whether the interpretation of reliance was reasonable and whether the interpretation of this with a was reasonable and that's really all i think it bears on ok you have another side besides the your i'm fifty three i'm sorry i did five year in one fifty three and the other notation was six twelve fifty three again please six twelve fifty three same kind of argument yes your honor as i was going to take you to that so i'm glad i did ok same argument you'd make as to both yes because i realize you said the only reason we know this one document is because it had a nine hundred eighty two date what about the six r document dated that also have a ninety maybe date it does not have a date i didn't think it did it does not it was located in the file between two other documents that were dated around that time so i would argue that at least the inference is is that it was sometime documents first is my standard review on issues of fact it would be clearly erroneous under the earlier only a so as long as there is some plausibility or some practicality  record for the the wholesale verbatim adoption of a party's finding one has to the court has to use what are the terms extra she did she did not receive california state disability in march she applied for it and i'll direct you to her claim form of january fifteen reliance transposed the date from nine fifteen eighty six to three eighteen and decide all that must be her date of disability events record ok but there is a second issue that was raised by  overtime here what is it you if we let you go or what do you want to talk about its regarding dr c crist because the letter that was referenced which happens to be a march twenty six eighty seven letter at five seventy two that letter specifically states she went out in march for g y n surgery g y n surgery and spine clinic are two different conditions the recurrent disability clause requires that if you go out on disability and she