morning my name is carl and it's on the tourney representing mr chuck we're here today because mr chalker has been denied entry benefits basically we're here because the district court didn't apply the this court and most of the other courts and on the council let's start with the statute of limitations issue the district court as i read the record denied or held that the statute of limitation was a bar that here here's what h p is basically arguing we sent you a letter in eighty one that said here's a check and we sent you a letter in ninety two that said we're not going to pay any benefits which part of no don't you understand what's the statute of limitations and what is the process that you as the claimant get if you feel secondly this was a summary judgment motion that the court was considering if you look at the facts when you say statute of limitations are you referring to some sort five is your position that he did not elect a lump sum payment that's correct you never sent you have to send something back into a laugh along some he never sent anything back didn't they also send him a check with the letter in one thousand nine hundred one they did send him a check w he interpreted as a partial payment if i sent him a check it's not clear to me in the record but i assume that he cash that check he did cash the check and in his mind that was a partial payment but he did he wanted the rest of his pension and he immediately wrote the company and said you know i got your check but you're basing your calculations on the wrong pension credit i have twelve point four years service here's these memos and there's no dispute now that we white versus jacobs case that letter had to have certain things in it to constitute the denial and employer cannot just plan and not just say you know they have to tell the claimant their rights that's why it's important that this is an arrest against you know a normal situation where you didn't have a statute that required someone in their notice of denial to tell people what their rights were and what their limit the statue of limitations was sending a letter that said no we're not go got to decide whether or reasonable person having gotten this letter knowing nothing about their rights and knowing the risks of require some sort of disclosure would they have known that's a fact dispute probably that should have precluded summary judgment right there but if you look at the case law and we started well they sat back and said we don't have to disclose anything it's only if they sue us then we can say oh well there's this also there's a contractual limitation it would make no sense at all to have the statute of limitations have a risk to say you must disclose all this information so that a client has notice of their rights but that doesn't apply to the statute of limitations in the recent congressman saying this disclosure requirement only applies to contractual limitations they said you got to disclose and the intruder i hadn't thought about in those terms or are what i'm not is what i was arguing for actually was the statute says in the regulations so you've got to disclose if you don't disclose it doesn't trigger the statute that's what you held in white and i mean i that's what we're talking about here and so what h p has set up for you is we can violate the policy respect if it's a statutory law so well but we can't do it internally contraction if it's a contractual last one that makes no sense i'd like to reserve the in time limitations so what we're talking about here is the running of the statute of limitation the regulations under section five zero three do not require an expression as to what the statute of limitations payable from our us plan that's a very clear repudiation of his right and the statute of limitations as a minimum should have been changed and that when you go back and you scuse me to the court hello copies of all of the letters and in her findings she found that the first written request was stated in july of two thousand what she can look remember at the and the statement in the march one thousand nine hundred two letter to the effect you have no further rights under of the plant it's of that point where he is charged i believe the structure of scandal on one sid plaintiff is still charged with trying to understand and determine the law the statute of limitation is something that's imposed by the law it's not found in the regulations we don't the regulations  impose on the claims administrator or the plan and its fate or the obligations of one single stack like hey this is not a situation that we have in the cases where there is an equitable of stoffel which is what counsel has argued for in those cases there is very much a conduct by the defendant which lulls the participant into not filing thousand and one that's in the complaint and in two thousand and one had it been twenty years since he had received a distribution of this ballot he went over ten years h  he reasonably interpreted the correspondence to indicate that he would be entitled to benefits of age sixty five i guess and if you look at pay for the life of the issue of the declaration of mr chalker and and what he was claiming for of course the complaint doesn't allege damages for not giving him the plan variously you can only go back so far on p wanted them to interpret it oh he didn't really ask for it he did if you interpret the facts in his light he clearly did third the clearing can clear and continuing repudiation argument that m bush makes i think you misspoke you said that was from wetzel that's actually from martin the wetzel case says that the issue is whether the benefits have been actually denied or the insured have reason to know the claim