i represent the appellant stanley hofmann individually on behalf of the state philosophically there's one major issue in this case and that is the proper interpretation and application of thirteen words in a  or voluntary resignation more specifically in this case mrs hofmann after seventeen years of employment with a ts had to stop her work because of very serious illness that later took her life and the question is whether leaving her employer because of their disability constitutes a voluntary resignation now the trial court in this case cross motions for summary judgment held that because there is no firm of act on the part of ts responded in terminating that employment that that's her leaving on a disability constitute a voluntary resignation so we have our main job here is to determine what voluntary resignation means employer that resulted as opposed to looking at the actual language of the policy that says what is a voluntary resignation the fact that there's resignation is qualified by the term voluntary in a case that well if it's involuntary resignation certainly severance benefits would be political and i understand that and i think you know just looking at the plain meaning which is what you're asking us to do could result  and in the way you want it but what does that mean in terms of you know precedent and does that mean every time you know unfortunately there's so much illness these days and  they specifically excluded leaving because of a disability and the court actually equated leaving because of a disability not being a voluntary resignation of employment and here it's an employee whose employment terminates for any reason retirement or voluntary resignation shall be entitled to severance correct is very it seems very clear and actually it's our position that this language is not ambiguous we believe well to be ambiguous requires at least two reasonable  interpretations and we think there's only one reasonable interpretations of the facts of this case the facts of this case are that mrs hoffman did not want to quit work that was her life blood she didn't make any choice she did not make a choice in effect webster's defines voluntary as making a choice and how about if we look and i appreciate that argument i'm just trying to figure out here every possible angle there in the discussions she had with the h r person i think it's  does that in any way indicate that there was a voluntary terminations based on the discussions she had during that transition period no i don't believe so because again it comes down to choice she had no choice in fact those discussions are laid out in the deposition of ms hofmann which was taken actually in her hospital room two weeks before her death in which she clearly contrary to what the response say she clearly testified that she did not resign that a t s terminated her employment and they told her that the reason they were terminating it was because basically she was a very valuable asset to them she was the only employee in san diego she was a first employee in san diego creating the san diego connection for a t s which was her job was to raise funds for the charitable organization she was very good at it she'd raised over sixty million dollars during her career with a t s and they wanted to keep that her contacts and keep that program open so since her too and she was more than willing to is no question about it because she thought as she testified anything good for a t s was good for her so she was willing to come back on a part time basis to leave her replacement and introduce them to her contacts so to do that so they did agree that they were she was a part time consultant right into do that a t s explained to her we have to terminate first your full time employment which they did on february twenty ninth two thousand and eight and then ten days later on march tenth they presented her with a consulting agreement to work for no more than six hours a week and to train her replacement basically which she did do it do we so in your view you offer alternative arguments do we reach the contra prefer an old argument that you make  because it seems like that and it may seem to apply to insurance contracts and given that the benefits here is not an insurance plan contract should apply here well i don't think the court needs to go there because i don't think it's ambiguous of course responded doesn't claim it's ambiguous either but we come to different conclusions as to what it means which may argue to the point that maybe it case this circuit however then blankenship came along and laid out the rule of when it applies and when it doesn't to receive plans and it basically said it applies unless it is one of three things that the plan is given a discretionary authority to interpret the terms of the plan that sounds reasonable if the plan is a collective bargaining agreement so that there's no pure drafter of the plan that is consistent with contract law and the third one was if it's a self funded plan the problem plan and there's really no rationale has been given as to why it would not this is just normal contract rules of construction applying to it he can take contracts which this is you know an equal bargaining position a give it or take a position here's yes seems to be a little bit of problem with that at least you know some want to talk to about it because as i read the defendants some most or some in judgment they raised two issues you know one was this  e for for severance pay because of voluntary resignation the other is that because only full time employees are entitled to severance pay and according to the just she wasn't and the district specifically said he doesn't need to reach that issue and so i'm trying to run figure out how do we get around it even if we did agree with you sending it back for the district court to resolve that issue in the first instance well the first issue was voluntary i think as a matter of law that we could make a finding consistent with the stuff in versus you know case that leaving because of a disability is not a voluntary resignation or terminations of employment that seems clear on the second step that was not addressed by the trial court time employee until february twenty ninth two thousand and eight and i understand you make when ultimately i have but i'm just trying to figure out can we how do we not address that i mean in terms of sending  so i think it's i don't think there's an ambiguity so i don't think we have to get the contra preference i'm i think that the consistent with the stuff of versus you know case that this clearly was not voluntary resignation or terminations i mean you're talking about how the precedent for other cases i mean there may be other cases that this ruling would make it very up to some time to reply because if we had somebody with less of a disability who was able to go to work every day but they weren't up to par because they were fatigued they had mental problems they had pain and they couldn't do their work well and their eventual terminated because of that then is that of all in terri i mean with that with severance benefit to rise in that case they would be terminated that would been a affirmative act by the part of the employer which was key to the trial court in this case and the only difference with this case is that her disability was greater i mean she didn't show up for work every day because work was in her home that was work there certainly are and what i was there like so you have to look at this case in the context of that plan in its entirety and the plan offers a whole host of benefits to its this is the i'm talking about the benefits that are being offered to the two you're not talking about of the risks that i am talking about a risk of planets being offered to for the benefit of its employees of the group insurance plan are you  are being provided are against your disability retirement life insurance and severance and when you look at this particular situation when miss hofmann went out of work because of her disability she was paid and receive disability benefit what she is asking for now is under the severance policy and under the severance policy she's asking for the same thing that she's asking for under the disability insurance which is which is benefits because she is unable to perform the occupations of her or her job and so in looking at it and looking at what was done here a severance pay you have to look to the purpose of the plan and a severance bennett the purpose of a severance benefit is to provide a dismissed employee with some  unemployment benefits while they are looking for a new job where you can tell that that's not the situation in this particular case yes did not dismiss ms hofmann she voluntarily resigned and i understand that she she may have been and she was faced with a situation where she couldn't working more because of her disability but that's the whole purpose of the disability insurance and the reason why that's there and that's why she receive those benefits and unfortunately you know tragically she ultimately passed away but there is life insurance which which kicked in at that point and then there was also the retirement i know you could have written a plan to preclude it did she to preclude this but i didn't see that that's the way it was written we were supposed to are we supposed to interpret whether or not this was voluntary that's the issue as it's teed up to us by the district court but that's it that's correct your honor it's whether or not this was voluntary and why does the voluntary mean making a choice  it does mean making a choice and did she have any choice about whether she could work when she was at at the time of her diagnosis originally when when she had the doctor's note saying that she was unable to work  she my understanding based on the record is she did not know or was not aware that she was dying until she was later diagnosed with cancer six months later and it isn't you know again it's an unfortunate set of events but she it was her decision to make as to whether or not she wanted to work or not work and it goes into you know issues about precedent and i think the majority of employees that have to leave their job for whatever reason are going to say that i didn't have a choice and for example if a spouse is leaving the country and that's and the working spouse the employed spouse has to leave her employment she's going to say that it's outside of her of her choice she's has no choice because her husband left or if there's a sick one at home that that employee needs to take care of that in that employee's mind it's going to be i had no choice and so what i'm saying here is that ultimately the subjective intentions of the employee as to whether or not they are going to continue working or not  really irrelevant it comes down to what the district court found is that you have to look to whether or not the employer did something to sever the relationship did some something affirmative because that's the purpose of severance benefits in order to get the severance benefits you have to we laid off for example that's the most common situation we're going to have a severance benefit right in this situation it's a classic disability claim and she was paid her disability benefits and so for that purpose and that reason we're trying to fit a disability claim into a severance claim but if we i mean we just got on language which we're supposed to and which you have the ability to control and we look up while ontario resignation is you i mean you make some good policy points  but probably could have been incorporated into the plan language with respect to severance especially if it supports the purpose of severance as you say but that's not what we have in front of us and so we're limited to the terry i'm trying to figure out what your best argument is against that if we just are looking at mollen terry resignation and the language and if you look up the definition how does that help you i think that you have to interpret voluntary resignation in the context of the full plan as i have discussed and how it entered into relates to the other plan provisions because if you interpret voluntary interpretation to say in this situation that she didn't have a choice because she was disabled then you're going to effectively render a severance policy into a disability policy that will apply in and basically every situation where you have a person who's disabled and can no longer work unless the who either retires or resigns that you're not going to give them severance benefit disability benefits are totally different from severance benefits this doesn't become a disability plan in that sense it just means that  sorry yeah go ahead sir could you explain that going to lead my my point is that in that employee's mind when you're looking at the subjective reason why they are leaving employment if the employees husband their spouse has to leave the country and the choices it's a choice it's a very difficult choice is it whether or not to keep your job or to go with the spouse and lots of people choose to stay and in this situation is well it's a very difficult choice in terms of continuing work or not continuing work she was able to continue in a part time role and it was it looks like she was very desperately trying to continue to work right and so i mean it just seems like so that's just it wasn't cuts against it being voluntary and i guess i'm just trying to figure out you know maybe perhaps why we're even here i don't know if you all considered mediation but you know this employee worked for you for fifteen years made millions of dollars for your for your very you know your organization and we're talking about sixty three thousand dollars i'm don't know what the attorney's fees are but i mention they're considerable for you being here today me you know the best arguments that you can but i'm just trying to figure out why would we why would you why would you can be here today with this kind of record before us and the law these you know not to my knowledge on severance pay because i don't think that was an issue that anyone was thinking was really not to my knowledge as to the severance pay pay because i don't believe that was an issue that anyone had contemplated whether if you as you should sit down  authentic to figure out a way that she continued to get her disability benefits by making sure that the amount that she worked didn't interfere with that so a lot of efforts went into making sure that she did get all the benefits to which she would be entitled but again the severance is something that that just does it doesn't apply here and i think that that the district court's decision shows that at a minimum there's at least one reasonable interpretation from our side of things and so that if it's a big it was it goes against your plants that are not the product of an arm's length negotiation and where the administrator is not granted discretionary authority you know when you get to that doctor and contra pay for end of the purposes when you're dealing with insurance contracts and insurance companies have teams of people that are drafting these policies and they know what they're doing when they're drafting these policies so there's there's this public policy and to give the benefit of the doubt to the insured and it in this context we have a self insured plan it's an employer who's not in the business of drafting insurance policy and isn't contracts they're just in the business of wanting to make sure that their employees hire a lawyer to do it company i would hope i don't know your honor as they answer that question but it at the end of the day it's the employer who's joshing that's not an insurance company and they're not skilled in well doing that and that's you know the insurance companies not skilled is that what you said no no no the employer the is not the role that the employer it's not their business unlike an insurance company in which case you which is the purpose of applying the contra preference of the listener any further questions your hon  on the argument that the disability play and somehow the severance plan and the argument that you need to take a look at the entire plan  anticipation that one could go out on disability and also receive severance benefits so there is a consistency there at least from that standpoint that it's not inconsistent to receive bo or with regard to the purpose of severance benefits there was no evidence as to the purpose of severance benefits at the trial court level but another purpose might be to reward a loyal employee for staying with him for a long time which is exactly what it was remanded back to the plan for their first attempt to interpret the policy but there's a concurring and dissenting opinion by five justices who disagreed with that but indicated if they had occasion is now submitted again