this is a very simple case probably in terms of quantum significant lead to the claim doesn't earn a great deal of money but it presents an opportunity for this court to resolve complete that section of the efforts of the employer refused to do so so he's on the form to quality energy and they still refused to fill out the section that was the employer validation of to ascertain his rights to appeal and to ascertain exactly what the planning terms were because he had no idea that's why it seems to me it doesn't make a lot of sense you're arguing for a ten year statute of limitations for failure to turn over those plan documents but the reason you're entitled to the plan documents is what you just said which is a bit make sure you know your rights so when you're litigating the claim denial you have those materials with you if we would have a ten year statute of limitations and people would be bringing this argument years after they can even challenge the claim denial so you see my concerns that it doesn't make sense to have the limitations period so drawn out when the whole reason babbin that is it is a good example of why it doesn't work mr babbin believed that like most short term disability policies that this policy provided coverage for six months it just so happened that no idea that he needed to file a second application for a long time to us i understand although my point is if he gets if he gets the right to those documents ten years later it's not going do him a lot of good because the statue limitations would have already run on challenging the claim denial itself long would have run long before that ten years were up there on the ground and he if he got them ten years later this this plan which isn't on the record what do we do about the non production of the plan documents so as the court knows in a recess in most instances other than the specific breaches of duty defined and complete disclosure of documents especially when requested lies at the core of a fiduciary responsibility it is itself a breach of that trust to not provide those documents when  you're giving them that trust and you don't really know what they're doing so that's why you have so long as it might take a long time to discover they engaged in malfeasance but here you are requesting the documents i mean you know if they don't come to you so why does that poor relying on this lengthy limitations period that really applies when a person doesn't doesn't know what's happening  procedurally what he was required to do the next step so your honor suggestion would mean that he would have to undertake to litigation is in effect first to go ahead and force production on the plan documents and then if the plan documents reveal that he had some other rights to file another separate action to try and enforce his rights to benefits but doesn't seem like an efficient way to to proceed maybe that is that he wants the documents to help him with his challenge to the claim denial or to get the other coverage in this case right right the inquiry has always been cast in terms of what is the most analogous state statute when they get into the cases you see this split all around the country of you know what are the most analogous what is the most analogous statute of limitations in each jurisdiction in louisiana has a couple of cases that are cited in the breeze and discussed that say that that most analogous statue of limitations is breach of fiduciary duty i like the discussion of that from judge angle heart best in the in the seal case where he says the court is not convinced that the one year limitations period applies to a failure to produce plan documents and that the statutory limitations period may be substantially longer under louisiana law that seal versus maverick claims cited in the brief  when you look at the statute statutory definition in the rest of a fiduciary obligations if it requires a fiduciary to discharge is duties with respect to a plan soley in the interest of the participants and beneficiaries for the exclusive purpose of providing benefits to participants and their beneficiaries and it sets forth a prudent man standard with care skill prudence and diligence then prevailing that a prudent man acting in a light capacity familiar with such manners would use subsection eg of that statute has often been described as imposing a duty of loyalty on plan administrator while subsection b creates the duty of care in how they perform that duty complete and accurate information as to the nature of what the claimant is pursuing and information recently necessary to enable them to enforce their rights is considered a breach of trust the best discussion of that that i've seen is contained in the case eddie versus colonial life insurance which is a d c circuit case nine nineteen fed second seven the second area that the court rejected in in analyzing the possibility of application of the ten year statute of limitations was louisiana's liberty prescriptive period of ten years for  c eleven thirty to see one certainly sounds like that type of obligation any administrator who fails or refuses to comply with a request for information which such administrator is required to furnish may be held personally liable to such participant or beneficiary any amount of up to one hundred dollars a day from the date of such failure or refusal now that's the statutory obligation so when we're  application of a contractual statute of limitations we have to question whether or not the underlying plan documents themselves contain the same type of language and cement to you that for the most part they do  and that's because twenty nine c f r twenty five sixty dot five o three requires that the claims procedures up a plan have a provision that the claimant will be able to obtain upon request and free of charge reasonable access to and copies of all documents records and other information relevant to the claimants claim for benefits in this case the court rejected the contract analogy without even taking a look at the plan documents which had not been filed into the record i had asked opposing counsel about supplementing the record to include those documents as the law between the to run its basic told while the claim is pending only question is did you raise that in the district court judge saini i don't believe that we did mr babbin started working for quality machine shop which of the division of quality energy services inc and its own separate company back in two thousand and eight in january of two thousand and eleven he went out with  tunnel surgery without on short term disability for a couple months returned to work with no problem in december of two thousand and eleven he went out with a left carpal tunnel surgery he was out on short term disability returned to work in february on february sixth of two thousand and twelve with a full medical release after that no problems but his pump order was terminated in may of tw and and down to ensure which he did he kept it until and you can you get you have a longer period of time to keep it than he did but he kept it through december of two thousand and twelve when he stopped paying premiums but in the mean time phone call then in subsequent email asking for an application for disability benefits this was provided it was done on june twenty eighth of two thousand and twelve the next day the benefits person sent an e mail back providing the services regarding a quest for documents now in this letter he does request documents but it was sent via fax the fax number as you can see from record documents it's in there w documents seventy three in a record on appeal in the e mail where they transmitted the disability application to mr babbitt as counsel it contains a fax number the fax number where this was sent to  the same fax number is not a quality fax number and product to that letter was even being said the division where he work quality machine l l c was sold in january about a month or so before that request for information even went out so that division not even in place anymore now we go twenty months twenty months down the line counsel file suit he filed suit against standard insurance the insurance company as well as quality energy eleven thirty two a one day for the benefits disability benefits that he was allegedly denied and he makes a statement on air about bridge if i do share duty climbing quality did not fill out this disability for all under the section four a one b claim for benefits under arrest and his second call the back was strictly a claim for penalties for failure to provide for to reproduce requested document slightly different factual situation where it wither on a claim for failure to provide notice of cobra continuation in the mopac as this court went through a lengthy analysis of what statute applies the plaintiff there was claiming there was a contractual for your statue limitations on a stack texas law whereas the defendant with climate should have been a two year statute under the texas toward them this car went through and made it wasn't contractual but then it applied to texas insurance code statute of limitations i don't see anyone arguing for that in this case why why shouldn't we apply the louisiana insurance code because those with an insurance co does not have a different separate statue of limitation that applies to those type of bridges as they did in texas or i thought there was and twenty two eight eight hundred twenty one a says an insurer fails to comply is subject to a penalty for double the amount of year tort statue of limitations the texas court the score said no wait a minute texas has a specific one just like the one you're on just pointed out that applies two years to the cause of action and they said that's more now if you few years later a judge found one arriving looking at it under louisiana law in the center for brief storage of breast surgery versus humana health had the same issue before this time under a failure to require to provide requested is not a contract claim it does not sound in contract it sounds in tort and he applied the louisiana one year toward statute thirty four ninety two as for the statue limitations brings it and doing so he came to the same conclusion that the wind here statue of limitations in louisiana is the one that applause and you educate me a little bit on the louisiana dili don't use all these words that everyone else uses a different word for i have the statute and it said it applies not just to negligence but intentional misconduct liability without negligence sort of strict liability mean anyway back and he did his analysis and consider all of plaintiff arguments and refuted each and every one of that's because this sounds in tort it does not sound in contract it does not arise out of an a refusal to pay benefits it's solely arises out of a statutory determination on the failure to allege failure to produce documents in a timely manner that cause of action you and with respect to the the toing that was not read before counsel's brief is is before the court is part of the part of the record from the opposition in the court below that issue was never raised  can be brought up at these proceedings for the first time but that your honor we believe that based on all of the documents the record in lopez the record and center for a start of breast cancer have the same background in trust law that arrested does cobra is about you know notices and penalties so it was more appropriate for the texas court to use an insurance statute in that instance than it is in a case governed by wrestling as far as them your honour's original question about the harshness of allowing a claim to remain open potentially forever and even after the statue of limitations for pursuing on the merits is concerned i think maybe even more agree just problem to have the louisiana situation where you have an extraordinarily short stature of limitations for a person of these companies especially where the claimant has not had any cooperation from his employer hasn't come hasn't had the employer complete any of the forms hasn't given him any documents and then he's faced with the decision of what to do i don't think the case law pretty much across the board has rejected the contention that the tort statu of limitations of plods the courts even the texas courts and the cases other than center for restored to drugs surgery none of them have adopted a tort statute of limitations they have an tort law sets and defines the statue of limitation that's our problem with judge zanies decision as he applies a tort statute of limitations that that's the way he did it we don't believe that it's correct that that is the most analogous state statute and the only other point on that that i want to make is if you if you pay close attention to the language of eleven thirty to see and and you know we we take our language as having meaning you see that the language that allows collection of penalties the use of the penalty language that is so often used as the trigger to justify a one year statute of limitations is for collection of civil penalties under paragraphs two four six seven eight and nine baboon's claim arises under eleven which allows the court to use it as compensatory if it desires and that's the reason that this claim is in the petition for mr babbin is that he missed out on a large portion of his claim from the time period that he was out because of the way his claim was handled procedurally had he been given the plan documents and knowing that he needed to pursue a long term disability claim he would have been able to collect the remainder of that time that he was out