coverage dispute and it has to do with the question of whether or not the employer and employment benefit liability coverage or endorsement under the defendant's insurance policies covered the they go so far as to in effect ensure the at the employer will actually make contributions in any year is there room is there some language that extends the coverage that far yes and that is now here what in effect has happened is that the trial for the district court has taken upon itself to say i'm looking at the issue of the ministration and here's what the insurance company in the defending champs meant by the term administration and yet there is no evidence before the court on that issue and in fact the only things before the court were the allegations of my complain which all say that the the underlying complaints arose out of just feuds over the administration of the of the insurer of the profit sharing plans the policies of insurance themselves and of course the complaints in the underlying actions were attached to the complaints as as it fits the definition of administration going to the heart of what the purported it is the reasoning of the district court says that there are three different categories of of conduct that may turn out to  either and these are are already before the court food providing interpretation regarding your employee benefit programs and handling records in connection with the program and then affecting enroll cancellation or script for terminations of the employee under that program at least two of these different kinds of conduct may well turn out under the facts of this case if there are ever presented to the light of day may turn out to constitute administration and within the meaning of this policy the meaning of the policy of course being interpreted as seen by the insured not  that it that it's that that that can fairly be said to be what was an issue in the underlying cases there were to my knowledge and i think the record reasonably well there was no contention that people were improperly terminated from the program by the  make contributions namely within the use exclusive discretion of the board of directors as to what constituted distributable profits that was the that's the starting point from which monies are are allocated to the program and that is the that was in fact really what was centrally at issue in the underlying case is this what what did that mean did see fact properly interpret its own program and the program was obviously developed in somewhat of a well it wasn't for developer the same for malady than the rest of program with the for example and so there were issues and questions about whether or not the that the program was being properly interpreted by see fact as what to what extent was he fact correctly determining in its own discretion the amounts of money or the proportion of profits or the net versus gross amount of profits that were distributable to approach to the program the interpretation of the employee benefits program was the central issue in the underlying cases those cases never went to trial as far as the record shows  they were settled so there never was a determination of that the administration here says providing euterpe rotations to your employees you're talking about whether the company properly interpreted its own plan as requiring it make this providing interpretation regarding your employee benefits program that is leaving out the entire closed of and giving counsel to your employees and as a matter of fact if you take a look at some of the cases that are in the record here other earlier versions of this semi standard industry form for employee values by bill the program breaks that out into two separate categories number one regarding and for providing interpretations regarding your plan and secondly giving counsel the economy bookbinding case for example involves a maryland casualty policy form that doesn't have those two different two different were you a living in your complain i was the administration of the interpretation of and therefore the out of the at the allocation of funds to those programs that was the interpretation and in fact what happened here is it seems to me that the district court ruling on this was a matter of judgment on the pleadings simply took it upon itself to say here's what the party left or here's what the insurance company m and it provided its own dispositive determination as to whether or not or what what what's the documents meant it didn't take into account because it had no opportunity to do so the reasonable these issues in a vacuum it's necessary to understand the nature of the claim and in this case the district court had no access to that all i have was the pleadings if this were a summary judgment motion which you know connection with this case all of which would have helped the court to understand what was intended by the parties as a matter of interpretation under montana law when the word interpretation of policy benefits of the here a lot of money is involved and for this or this controversy spanning so many years for many parties so much money to be resolved simply on the basis of  adjunct to a labor compensation agreement has nothing to do with the application of the policy because all of the other benefits that are also described in that same section of the policy that's talks about what amounts to an employment benefit plan similar character there they are things that are offered to a prospective employee or to existing employees because income or state the mere fact that they are bathing in lieu of wages is again makes no difference and there's an awful lot of ink spilled in this case over the over really related concepts which are clearly not an issue here if anything they're sort of only an issue and universe sort of way because they actions were themselves also attached and those complaints read i mean they're very long but there is plenty of ammunition there for the conclusion that those complaints each of them to very directly request a response to some of the questions that you asked my colleagues and i'd like to be very clear no way i ever in the underlying complaints the five underlying complaints filed by the plaintiffs against the faq was the word interpretation ever used nowhere in the declaratory judgment action in this matter was the word interpretation ever used no way are in the tender of insurance made incorporate my most previous response it has nothing to do with interpretation but briefly administration again if i may from the policy is defined as interpret think or handling or the enrollment terminations of participants in the plan to make the weeds payments under this profit sharing plan those are their words which they do not dispute this appeal to this court has held in i t versus american life insurance it was that and if you look at the gilmore complaints in particular they talk in allegations as follows one that's fast wrongfully determined within its sole discretion acting as  normally we see these come up on summary judgments where there's a record that we can look at work act with your response i'm prepared to respond to that judgment suit dealt essentially with whether or not our client had a duty to defend and whether it be in the state of colorado state of california the state of washington the state of new york fact and then comparing the allegations of the complaint again assuming that they would be proven true against the four corners of the contract of insurance and that process is highly susceptible in every jurisdiction declared that sea tac wrongfully withheld the wages of its employees and that this profit sharing plan was not an employee benefit plan an issue that was not addressed by my colleague but that it was a labor compensation flan and in his deliberation on our motion for judgment on the pleading judge labelle did examine the rulings from the underlying case but very important and i must make this point with great respect i must say it does not therefore make it a profit sharing plan and in this case because you can have profit sharing plans that offer the payment of wages and in fact contrary to what c has argued a researcher is very clear and very important on this point that if you have as part of a profit sharing plan pardon me if you have this part of the wage payment a profit sharing plan that account the reasonable expectation of the parties now can he do that on pleadings or does that require testimony that i should point out that that argument that i heard from this podium only twelve minutes ago was the first time i've heard anything about the reasonable expectations of the insured and i believe we only reached reasonable expectations of the insured after we've used all the aids to contract destruction before we immediately construe it a so i don't believe he ever gets to reasonable expectations on this motion for judgment on the pleadings it truly is not to oversimplify it and take any dignity away from that very important procedural to that the rules provide but a judgment on the pleading is a very straightforward and simple approach to just decision often that look at the pleadings what's attached to those pleadings the contracts of insurance in this matter and on the duty to defend when you compare the pleadings to the four corners of the they were julie and judge what else could not have been clearer in fact the strength of his decision i believe and i'd like to quote comes from the simplicity of the words that he used permit me for he said that's on my strong point if you will there is simply he said no principled way no principled way to shoehorn a claim alleging failure to fund a profit sharing the employee ease in an employee benefit program if it was an employee benefit program so the strength i think again of his conclusions comes from the very principled approach like to just perhaps step back from all the arguments just for a moment if i could and when this disparity and i were preparing for this we would say well let's let's not repeat to the point what's contained in our papers so if we liability insurance policy and employee benefit liability indorsement to a liability policy ever paid for wages that are doing only by an employer to pay they wrongfully withheld wages from their employee ease and i've heard the phrase by the west standing at the podium here bank of the west this is clear that that is not even damages under a liability contract with insurance if i am holding on to what is rightfully someone else's property their wages in this case how can that ever be damages that an insurance company would ever have to to respond  a wage benefit program and then when you look at the words profit sharing plan they're still rounded by other words in the contract of insurance for example life health and disability plans pension plans unemployment plans and a law school professor of mine told me that words in a contract just like people are judged by the company that they keep and when you look at the words profit sharing plan used in our contract of insurance they want to be judged not in isolation as the fact would have to score too but they ought to be judged by the words that surround them and the words that surround the words profit sharing plan are long recognized traditional concepts of employee benefits but even if you were to find that it was an employee benefit somehow our next argument is and i will not believe at this point is that the liabilities alleged in the underlying complaint you know as i mentioned the ice tea case which is in the briefs that case actually is emblematic of exactly my point that was a case decided under reserve and as a matter of fact the language that mistress of you know that relied upon actually naming only non arista comp theories and it then was amended to add a reserve but not to take anything else away all five of these have a kind of exposure that is clearly not touched by the exclusion response but in the very first of the complaints the some are still case there is language there where the plaintiff specifically says that he had determined he had had to have discerned that there was a discrepancy in the calculation of the benefits payable into the program and that he was contesting the way in which that calculation was done if you take a look at the economy bookbinding case from new jersey that case actually the helm that the potential for for live realty arising out of the calculation of benefits was the basis on which the court denied summary judgment in favor of the insurer and required a continue closing here that the that the brief statement that mr sowerby you know excited from judge lovell's decision no principled way of shoehorning etc is exactly the point this goes to factual issues there is no way the judge level on this record could say i know what was in the mind of the insurance company what they intended or what was in the mind of the insured as a reasonable consumer of insurance