morning your honor string bill worth i'm or on behalf of nine hundred fifty retirees who spent their work lives at the auto white plant and for a story or hi ho i'd like to reserve three minutes for rebuttal i'd like to focus on one fact or actually multiple facts but focus on one issue and that is that our complaint pleads facts that make a plausible claim that the parties intended lifetime benefits before i do though i would like to address the elephant in the room my point here is that what do we do right now and judge griffen so the couple of things about that about trying to develop consistency ah judge gibbons in her concurrence talked about the fact that the cases were facts specific she it may have been have been more aspirational said because the facts dictated the results the cases can be reconciled but one point i would take away from that is the importance of the what do we do going forward given the current state of war however you describe it it seems to me that what we do or what you should do is decide this in other cases as narrowly as you can as you would any case but particularly here and that what you should not do is extend the rationale from gallow or the discussion in gallo about duration clauses and allow a case to be decided based on twelve b six on these facts that would simply confirm what judge white i think and her concurrence and reese said that we're now turning into a circuit where the duration clause is the absolute determiner period it would help me rather than having a lot of strategy about how the court should interact with itself if you could identify the strongest cases that are binding present that are published precedents that support you and see whether they do yes your honor might serve your underlying purpose of and they're all opinion first of all we have here a pattern or industry standard language with the pension and the lay off and leave of absence provisions that this court has dealt with many many times including reese and kelsey hayes so the underlying contracts have all we have all of the contract arguments that have been made there and were made successfully in reese and in and kelsey hayes let me ask in terms of how we should d just unclear on how we could do that in light of the supreme court's decision and gallo well i don't think you apply yard man yard man does not live but i do think that you would agree with that that everyone can agree you're making an argument that in effect we do apply it because it was the law and we have to apply the law at the time no not you or you withdraw  principles of contract law to the list from the majority in the concurring opinions and tack it and goes to work that existing law is incorporated in contracts and will assist in that the court cited said that includes common law and second that changes in the war are not incorporated on less indicated or using that to refer to the yard man or not language in ohio which has been held in ohio to provide lifetime benefits that's the that that is relevant that that is relevant evidence here we have honeywell in a related case the third circuit affirmed a finding that they flew him shopped because they went to new jersey to file a declar tory action because they knew what the war was in michigan so that's what this employer knows all we are saying relative to yardman so the yard man was it is that fact well arguably you always get to the intent of the parties the contract is unambiguous we examine evidence relevant if it is totally unambiguous but let me back to judge roger's point and  of the differences in this collective bargaining agreement that different from healthy some of the cases which i thought were identical but were decided differently and that's that's why i tried on b for the duration of the riemann which continue in force in fact until eleven fifty nine october thirty first two thousand so it actually has a the date for the termination of the insurance program not just the general duration but actually has a date i mean isn't this a little little different to those other cases i don't think so it's still it's still the equivalent of a general duration clause even though it's got us the date that the insurance program terminate on this date well there's a termination clause in the insurance program it's the forward insurance program they all contain termination clauses but this court has many many times held that it's still a general duration clause that happens to be in a separate document because these big three contracts got so huge that you had pension plans insurance programs etc that's the reason for that duration clause now the specific language you're talking about i don't know what the reason is for putting that language him but if it was put in an o nine it probably relates to what was going on relative to the cap because they did start negotiating and big three language when they started negotiating an individual cap in around two thousand but i don't think you can take that language from two thousand and nine and say aha these parties and ted did something that all of the other parties who entered into these very similar contracts intended  let me get back to the late and painting damn big you would need to just apply it here you if back to the point judge cole made intact that three the existence of that was out there that these words meant this at this time is is i would argue comes under a latent ambiguity it is something to quote judge posner which makes you scratch your head i mean isn't this relevant or are we needed to determine this case is if the parties in the go she did post tack it in agreed to particular language and not when the war was different let me also if i could get to the complaint in what we allege there in gallo the majority opinion relied in part on a reservation of rights clause not only is there no reservation of rights clause here the parties honeywell the only provision it sought to change from the big three contract with the normal language was it sent out a reservation of whites write the letters to employees they complained to the union the union complained to honeywell they withdrew it and apologized so here unlike hello all not only don't you have a reservation of rights you have a company apologizing for daring to suggest that they have a reservation or rights that also is a blatant ambiguity and we have paid into ambiguities here that judge card readers see how language inconsistent with the statu creates a latent ambiguity i'm sorry in other words that would just destroy the parole evidence rule to say well there's some parole evidence that goes the other way so therefore there's a lady that's not what you're arguing is it or is it no let this different from that you seem to be saying well there's language out out there that's inconsistent with what the statute i'm sorry with the contract so therefore the contract is ambiguous because some of the parties refer to it as saying something different let me talk about the kind of an answer to that question i'm sorry i ask again your honor certainly designer stand the parole evidence rule if you have a contract which says x and you have evidence that the contracting parties thought it was why you know they discover they talked about it as why are right that's what we would call parole evidence evidence outside the contract as to what the contract means that's different from what the contract says usually the ruling contract laws you can't hear that evidence is exceptions and so forth people write books on the subject me so far yes ok you seem to be making an argument that because there is language of the parties outside the contract context that's inconsistent with the with the contract therefore the contract is latently ambiguous no i'm saying i'm saying i'm asking how that could be without destroying the parole evidence rule that's my question because i'm talking about actions this is what money well did it attempted to obtain a reservation of rights this is what honeywell did this is i'm not talking about wording and we also have paid ambiguities we have a contract that says there's a legacy retiring medical expense legacy what does does that not make you think why are you calling it legacy you that's in the contract and we pleaded that paragraph seventeen also in the contract prior to two thousand and one those benefits were not kept and they put that in the contract why not arguably and that's in the contract arguably because that's peyton that brings to mind paint ambiguity it's in the contract it's objective evidence and the district court ignored it and that's not something that gallo dealt with at all so you would be going beyond gal also we have five years of performance here now we have that in gallo but judge sutton justified that by saying yeah but they reserved rights well here you can't say that not only didn't they reserve rights they apologized for suggesting they have that right and they continued the benefits for five years also consistent with a lifetime and ten the third circuit in skinner a matter of law and i think there are a number of terms in the contract that support the district court's decision but i think the most important is the one that judge griffin identified and that's the more specific durational language it's found in article nine section twenty seven s in section twenty seven the c p a incorporates by reference a document called the insurance program which includes the retiree health care benefits that are at issue in this case and section twenty seven clearly states that the insurance program applies quote for the duration of this agreement that is unambiguous language making clear that honeywell's obligation to provide retiree health care insurance did not last beyond the expiration of the contract i hate to interrupt your start why don't why doesn't the existence of the negotiation for the cab suggest that there was what you just said suggests they wouldn't have to negotiate they can just impose the cams so you're lucky to get anything think we need to get into that because the contracts on a big u s but during the you know when you're consistently renegotiating collective bargaining agreements that do include retiree health care benefits in them i think it's natural to include the caps as part of that negotiation right so for years and years the parties were going to contract that included retiree health care benefits when honeywell came along in the early two thousand and said we need to negotiate some caps on the amount of our contribution i think it's natural for the parties to negotiate that is part of the natural negotiation over retiree health care benefits but the keep the key point is the underlying obligation last for is only as long as the contract lasts you're going to come back every three years and go shoot that were for future periods so the caps were in terms of their effective aid or who they applied to the difference well the caps were applied only for certain retirees who would retired after a certain date right and so i do you know this court has said in coal as the fourth circuit has said in its recent bart decision that fact doesn't create ambiguity in the face of the contract for a couple of reasons one is because in this contract you have an ambiguous language that speaks to the duration of health care benefits right it's the cap speak to the amount of honeywell's obligation the duration is addressed elsewhere in the contract and in section twenty seven and that's there's an ambiguous language there and the second point i make a little strange to negotiate caps the apply to the period after the duration expires  when is this court setting coal your honor in rejecting this exact argument it said just because the parties negotiated caps that became effective after the date just shows that they anticipated that retiree health care might be renewed in the next and gallo i think he was talking about there so i think coal is on all fours with this for there are no distinguishing factor between material distinguishing facts between this case and coal the other reason is your honor is is this court explained and would be detroit diesel there are reasons to agree to caps that have to do with you know the accounting rules and things that companies have to book on their accounting sheets that you know a cap regardless of when the effective date is still has the president accounting reality the companies can account for and that's something this court split might account for future payments that they expect to pay in though they don't have a legal obligation to pay them that's that's correct is this court explained and would be detroit diesel be accounting rules require that and so cap was implemented to in order to address that  i want to speak briefly about the existing law argument the argument the plaintiffs make that you should interpret these contracts in light of the yard man doctrine i don't think that's a correct way to do that and i think it would be inconsistent with what the supreme court did in tackett c b s in that case like the c b s here were negotiated when your demand was still good law and yet the supreme court never suggested that those c b s should be construed under the yardman doctrine to the contrary when it remained of the case to this court the supreme court said we're remanding for the application of ordinary principles of contract law it didn't say we're remanding for application of yard man or the yard man inferences so i don't think that's a correct interpret to the contracted issue here couple of other points i'd make your honor again i think the key fact that distinguishes this case from the number of other of this court's post aca cases are this is the specific  language that's an article nine section twenty seven that's one of the key facts of this case that distinguishes it from recent kelsey hayes i would also make the argument that in recent kelsey hayes your honor there are important facts in that case that this those cases that this court relied on  that are not present here for example in the kelsey hayes case the court relied very heavily on the fact that there was a plant closing agreement issue in that case that specifically continued retiree health care benefits beyond the expiration of the last the v a had a whole separate contract the parties had agreed to that continued benefits beyond the law that's not that's obviously not the case here we don't have a plant closing agreement or any other document that continues benefits beyond the expiration of the c b i and then in receiver i'd make the point that the court there found the ambiguity because quoting from the carved out retiree health care and quote stated that those coverages ceased at a time different than other provisions of the c it's not true in that case in this case your honor and in fact significantly in recent what the court wrote is quote if the c p a clearly stated that the general durational clause was intended to govern health care benefits the c p a would most likely saying to the extent there is conflict between gallo and recent kelsey gaze you're obviously bound by gallo but i think you can avoid getting into those issues here because i think affirmative is warranted under any of this court's decisions i think they're if the court wants to there are ways to distinguish kelsey hayes and rees and to not have to get into you know are they irreconcilably in conflict if the court concludes that they are then i think under existing precedent in this court yes you're bound by diallo that's the decision that binds the court apply here and then he also walked through plaintiff's arguments and said a number of those were rejected specifically in this court's decision in gallup and one of the overarching themes i also wanted to make to the court is plaintiffs in their argument ambiguity in an ambiguous contract it cannot be used to create ambiguity and in an ambiguous contract so i think that's an easy way to dispatch with a number of planets arguments in this case because you can't use it since gets to inject ambiguity into the couple of other points your honor one is that i think some of the other rationales the district court relied on more important and are also appear in gallo and some of this other ports post back to cases such as the fact that there is expressive vesting language used elsewhere in the contract with respect to pension for one k benefits and there's an absence of express vesting language with respect to retiree health care benefits i think that's yet another fact that supports the ferment cyr and of course you know both the specific durational clauses are that you know clearest and most an indigenous language in the contract that speaks directly to the issue here unless the panel has any more questions i'm happy to yield the balance of my time really not thank you thank you three points first not only does the contract specifically make reference to the fact that the pre two thousand and one  retirees will continue to get full benefits we haven't had discovery on that we don't know why so not only is that a contractual in this show that raises an ambiguity have we don't know why for all we know it was agreed in bargaining why because well there are lifetime benefits here look at this big three language the big three's life time that's what the law is what the district court has done is cu any opportunity for us to find that out by saying nope duration clause that's wrong we should be entitled to discovery on this and none of these cases are twelve only if the language is not clear i mean that's discovery that you're talking about really the issue is whether it's whether it's ambiguous or not well but it's ambiguous isn't it is our argument and we've got it that refs sixteen and seventeen of the complaint both the pretty to thousand and one carve out and the reference to legacy benefits those are in the contract those are at least those can be looked at in addition to the will continue in disc in determining whether there's an ambiguity and what the seventh circuit says is that and therefore you can't grant the twelve twelve b six it's as simple as that and that's not in gal that is not in gal nor was galloway twelve b six to judge griffin's point about article mine twenty seven section twenty seven and i said it's just a general sounds to me like a general duration clause which is right but the reason i have to leave it at that we have not had discovery so in this case it would not be appropriate to cut off discovery and say oh here i found a duration cla looks a little bit different than kelsey hayes so this one is clear and they lose we don't know why another general duration clause was put in there i speculated but i have to speculate because we have had no well it seems to me if it's a general duration clause as are the clauses in all the cases that this court has already determined that it doesn't as and if you're going to say well here is a general duration clause that's different than the general duration clause in kelsey hayes it seems to me before you say as a matter of wa that these nine hundred fifty folks are that we should get discovery on that find out if it means what i think it means which is it's just another general duration clause  where your time is expired thank you very much we very much appreciate that you very much appreciate your argument today both counsel the case will be submitted to complete