now open according to law god save the united states his honor who thank you and welcome everybody we are glad to have each day just a few reminder as you are not to photograph or videotape or audiotape this proceeding please recall that you should knew yourself when you were not talking but yourself when you are talking and please when you reference facts in defined term right because as i understand it correct me if i'm wrong the parties agree that he wasn't what actively out work so the st paragraph of the transfer vision would sort of take care of th soon as they made that argument which i don't believe the courts are to allow them to make it after the fact that seeming that the court allowed it we move to supplement the ministry record with a declaration from the insurance agent showing that the premiums were in fact a and we the best evidence we could show that the premiums were paid and somehow the court said they weren't the only thing i can think of as the court got a little bit mixed up because why instead stated in its brief that the premiums were not paid maybe maybe the court t took them at the their word on that it was weird to me about that is that something that it is clearly within reliances knowledge to do ascertain is not something that can only get from you like what is your social security number or something like that they know they were paid it's not an issue and that's i mean these policies are designed this way they're designed to credit periods that that claims have been insured up to the point before that they become insured and that's exactly what this policy did and it just so short term disability some evidence that the brains have been hey you know your point earlier that insurance companies i have a lot of experience with insurance companies and it appears to me that typically they don't offer coverage and reliance would have never brought this up because they knew that premiums were paid and there was just and the record actually showed that the premiums were a bill or some kind i mean again it's a little bit of a technical argument i think that they're now claiming which is that you didn't prove agreements were paid but they also would have made it got the appeal they wouldn't deny people sing the premiums on it and then we could have done something about it we could have said ok we're here's some some evidence showing that the premiums are a bit you have in your possession but we're give it to you again  and i think it's important under risk you have to read language together and this policy says you have to be an active full time employee and full time is defined as working for your employer for a minimum thirty hours per week during your regular work week and counseled an address that language during your regular work week well always is i agree what was mr miller's regular work was it thirty hours mr miller had no regular work week on or about september one two thousand pound me because we all started yelling when he was out work what was his regular work well that i don't know that that has been established because counsel hasn't established that there are some there is some evidence he worked two weeks that he'd be off two weeks i don't know that you know so at what point is it that he did that regularly because that's the language regular work so we know in july as of july one two thousand and fifteen he stops working and he doesn't work again until one year later so we have a whole year where there is no work at all  for for that entire span so to say that he had a regular work week years ago that doesn't qualify because the policy looks to at the time of the transfer of coverage on september one two thousand fifteen did he regularly work a minimum of thirty hours a week and then says i think you know why you have this nd paragraph that says it explicitly but it was not honor and it's important i'm going to put in the context of comments that counsel made so council staff this transfer of insurance coverage protects somebody if they're quote not working that day and quote and later he said that somebody may be off during a weekend or on a holiday and this protects their coverage and that is the purpose because of a person who is missing a day or two at the time of there is a transfer from one carrier to another this protects them so if it happens to be during a holiday and they're not working that they they're going to be insured by reliance if they're out sick due to a cold or a flu they're going to be insured by reliance ok what about if they had come in there in the hospital for three get regular so what does that mean that means on a regular basis on a consistent basis that's what the dictionary we provided the dictionary definitions of what regular means that are creeps so on a regular basis as of september one he had to regularly work thirty hours a week and he didn't molest a bunch a live one he got cold it ended up in the hospital d and september want he still there but prior to that  i believe it's on reasonable to say that in the context of the words active what active names regularly working which is the definition of full time that a person who has not worked in approximately three months and when paragraph if it's not going to apply to someone who's been i don't know that aren't member he said something like two thousand and thirty years at this company he's been there a long time working regularly then he gets sick and he's months where does it differentiate because we have other kinds of people in the hospital for several months and then wonderfully they get out and they're back in the world that some of them pass away sadly but that's a real bet right now so why i mean how are we supposed to differentiate is it the one week over the person that you we among two months your honor i think you have to look at the language in the policy the language in the policy is active which means we cite to a th circuit decision that means actually working performing your duties but then you have to read in conjunction with the definition of time regularly doing that so you must be working at the transfer date and this person was not if he's not working to if he's not working in two months and i know your honor keeps mentioning cove it it's regardless of the can you know maybe that's that is an issue today in other cases but that's not the issue here and i think that just in some ways prejudices the issues in this case because the truth of the header is because through the policy i mean whatever we issue in this opinion is going to affect future opinions and so if we were to rule that you could always be off for a weekend or only six for one day a flu for one day's good but a code for a week is not that is go affect people i'm not saying me we have to follow the law whether it hurts or helps people that's not my point but my point is it doesn't matter what our construction is and so i'm just trying to understand your argument because  notion that you have to be regularly at work is to me inconsistent with the nd paragraph that understands you might be injured or sick i don't believe it is inconsistent what they're trying to do is to say if you are injured or sick for a day for a few regular means on a consistent basis on a schedule basis and when you look at that this person was not scheduled or consistently working on september one two thousand and fifteen on with any regularity because he hadn't worked in two months i don't think and it's hard to put some temporal meaning except for regular the definition of regular which means consistent and on a consistent basis as of september one he was not regularly working thirty hours a week because he had not done so since june th i believe the last day that he regularly work i don't think a person would say you know  i'm regularly working everybody by the way that's a word in the policy it says full time means working for your employer for a minimum of thirty hours per week during your regular work week not that you have worked in the past for thirty hours a week and council mentioned the jackson case which was unpublished decision in that case it involves very different language back he said language but the find it was goes one so counsel is saying we waived the issue because we didn't address it but again it's his burden and that was the point i was making he said it is letter that i pay premiums but you provided no proof that's like saying i'm disabled but you don't give a doctor's note judge haynes you said but you should have the information we don't because this is group coverage so the employer submits the premium on behalf of everybody and it goes to a premium billing unit and the claims department would have that information they would they would know premiums were paid by the group but unless somebody affirmatively states that premiums were paid by this individual they would not necessarily have that always you sure why would you denied on that one for the very reason that there was no coverage for alliance realized at the time that it should have approved a short term disability because he was not covered as of september one the transfer date in the s right what does it have to do with premiums well i asked well counsel argued they paid the short term therefore they ignored theirs coverage that's not true because they denied the two thousand and fifteen long term disability claim there's no waiver here but what has to benefits under the insurance report your client pays any benefits and insurance they are going to check that that this person is want to be insured people at least as far as premiums being if they're not going to check it then why should we you know years later in for something you're not even enforcing your order there they're not checking it except that they are checking it to see does the group pay the premiums and then if they learn later on it's an issue and this is the point is g heart it's not an issue the premium issue part here apparently there has been information submitted betting to paper that hasn't been our defense in our briefs and counsel saying i've misrepresented to the courts i have not been offended by that but the fact is we stated from the start that the information that was should have been provided wasn't but that we've never contested it in subsequent briefs oh  something we have to decide no why no no your honor because they start information that i will add was improperly obtained by council council contacted my client directly during the case was that there were no findings by the district court on whether the employer had established regular d full time out whether regular full time hours or this one of your owners had asked whether there was a decision on that issue in this case and there was there were specific fact findings and we cite to them towards the end of our brief but they were specific fact findings by the district court in this case on why he wasn't in fact an eligible person part of that being that he was not an active full time employee regularly working thirty hours a week and the court mentioned the fact that he had not worked since  since leaving june of two thousand and fifteen the court mentioned the fact that he was out of work through the disability and did not work again for quite a period of time so let me just get this though why would the language then be it was not isn't that take us back to the moment before the injury or seconds your honor that goes back to the point maybe i'm not saying it as well as i can i hope i do better now so if he was injured or sick the day before you know august st of two thousand and fifteen if he is sick on that date or it's a holiday and so on the next day the coverage comes into effect and he's not at work that day he's not going to lose coverage but it was never intended to have somebody who hasn't worked in two months so what happens if he's still paying premiums your honor and he doesn't work in two years is that still right if he still regularly work being younger i don't say you can certainly say otherwise qualify for this many months this many days or whatever but to me otherwise qualify worked there for twenty six years or something like that not very good at math but something like twenty six years so i would seem likely otherwise why had he not been injured or sick otherwise well by yet so that strikes me as if you all want to be specific that the injury or sickness had to be only a week or something like that you absolutely put that in there and i respect that i grew up with respect the right of insurance companies within the law obviously drive policies how if they're not there their coverage under some interpretations might have been may or may not have transferred here but what this policy is saying though but if you are in an elder if you're an premium have been insured by the car carrier you know that's all fine you see part of what's going on here which is kind of interesting is if he was already disabled and we know he was from financial ones even paying premiums most people wouldn't be paying premiums but he is here so then you have to look at it but is he still eligible because the payment of premiums alone doesn't guarantee coverage he has to be an eligible person it says would otherwise qualify as an eligible policy language and it says these two terms active and full time employee are ambiguous and so therefore there are there are multiple ways it can be interpreted and we need to interpret them in favor of not sure now do you say that the  circuit was in correct in that decision so that i guess effectively recreating circuits well if we look there's already been a circuit split on the issue of what active means with the th circuit and actually the th circuit another case said active means actually working a case called turner versus safeco so they've created their own little split within their circuit and on other issues this court has disagreed with the six circuit of where is this court has said that the term occupation regular occupation is unambiguous under do novo review and the six circuit is held otherwise the nd circuit so those are the splits and i think in this case we have to do is look at what's reasonable and is it reasonable to conclude that a person who is not active or actually at work if i may finish your honor is not actively a worker actually at work as not been for two months and is not again for a year then they can be since considered actually working regularly on a full time basis and i think the answer that is no ok but then i want to be fair to you because we took all the time with the question number one i want to make sure you have give you another minute to cover the during the lookback period we had to be treatment free he's telling a doctor that he has worst pain especially with rehabbing the knees so at the very least he's consulting with a medical specialist for the knee but that's not the only one as to the neck and back on piece sixteen of counsel's reply brief he cites to ten records nine of them are from two thousand and fifteen they don't prove a disability in two thousand and sixteen the other one the only other one says there's a history insured and i mean is there some sort of time cut off and how do we deal with and there isn't as in the way the policies were written i think we have to look at the policy language and if they wanted to go to adopt some certain  limitations they could have done so but they didn't so i don't know how we can just make one up at this point now that there is this issue full time in all of this has there ever been any argument that the fact that for two weeks the sort of twenty four hours a day on and two weeks he's off is anybody argue that that's not full time your honor you know and that's just the way that's set up for everybody i mean so nobody would be able to time at least no or around that that's really mr backcross bottom line argument as i understand it is we're looking at the relevant day and him being to work for two months at that rel is it's pretty clear what is trying to be happen here the employer is trying to switch insurance companies without messing up its employer he says and that i guess is not always perfectly done but to me that if you the transfer of insurance coverage is the title that's what is happening you've got an employer who decides that credential is too expensive or not working out or whatever it's a better deal with reliance wants to move everything over but wants to kind of keep everybody in the same be they were in yes that's exactly right that's exactly what this is for in they were very well aware of the issues that they actually met with one of the alliance representatives in disgus condition because he thought and yet the credit that she showed it so you know we said appropriate for us to consider that title transfer of insurance coverage or should we all like consider the other words that we've been talking about otherwise