jay mohr and others argue it's not to exceed fifteen minutes per side missed day for the opponent good morning may please the court my name is stephanie day and i'm here too and the counter is not going we're again without a lie ok let's to reverse the summary judgment decision of the district court because we believe there are genuine issues of material fact that exists for the trier of fact because we believe that we presented evidence in this case that the summary plan description that all refer to as the s p d was never adopted as the controlling plan document and that the s p d could never be the controlling plan document because it doesn't comply with the arista statutory but why it so what is the controlling plan document if the if the s p d is not there's never been any controlling plan documents produced and there is a controlling plan document that's required by all right so that that means if there's no controlling planned document that and there are no terms in the trust agreement that calls for a document that nobody that thinks they are covered by that plan actually has any right to any sort of benefits at all because they aren't set out any where they set it you could say that it he's going to have to repay i believe what's happening here is that the summary plan description or document is being used as an indirect vehicle to create the contractual or agreement obligation all right then what is and what is in it therefore controls that is the position of the court that was the position of the district court then absolutely that is what has to be viewed wasn't that isn't that position rather necessary for your client to be entitled to any benefits at all i mean if you prevailed on it not being  play and then somebody is going to be looking to you your client to pay back the money he got exactly absolutely absolutely and that is the alternative position well all right so the question is do you pay it back because there isn't any plane or do you pay it back because of subrogation it's the same thirty five thousand dollars isn't it it is what the  what these supreme court as i understand it has pronounced is that if there is not a plan document in there in the terms or not in that plan document they cannot be included in a summary print plan description to be the benefits if that's the proper interpretation of law well i suppose putting aside the argument about the summary plan description not being that the agreement let's concede for purposes  is considered the play absolutely the starting point obviously is what what is the controlling agreement and if the controlling agreement is the summary plan description that's what we're going to look to and that is under document number or the the record entry one dash one in the page id seventy nine is where that starts not only looking at the terms of the agreement being the most important but also looking at the history of the under law and underlying tort case and the facts that we've produced in evidence here the facts that are on refuted at the time that mr moore was pursuing his store claim the play and hired a lawyer filed an intervening complaint against the hamilton county defendants in the tort case and they were pursuing their right of subrogation against hamilton county they were not pursuing a right of reimbursement against mr moore so that that's the landscape that we were that we were operating under when you look at the other party liability claims that are at page i d number seventy nine the language provides amounts that have been recovered by a first sentence however starts the second since the amounts recovered by such cover person from another party in excess of benefits paid by the plan are separate property of such covered person given the framework of the tort case the planets hired a lawyer the plan has intervened into the case the plan has filed a motion to strike the immunity defenses defendants the plan participated in mediation in its own room separate from kyle moore to negotiate its own claim when mediation was unsuccessful and mr moore approached the plane to let's attack this isn't as a united front let's do this together he was thwarted incent told no we're pursuing our own separate claim you're pursuing your own separate claim good luck and that's what mr moore did that was the circumstances that existed at the time mr moore resolved his his case mr moore wasn't trying to cheat anyone or concoct any kind of scheme well the plan was probably not trying to do anything nefarious either they just wanted to protect their interest in the in the medical the amount that they had provided in medical benefits and that's what they were doing and they were they were allowed to intervene into the case and that's what they did ok and when mr moore resolved his case he preserved their right to do that the briefing of the immunity issues was well underway so wait a minute he walks away with five hundred thousand dollars is that right the gross settlement yes and that's the settlement  and what way did he protect the plans right thirty five thousand of the plan was seeking it's thirty five thousand in benefits with a subrogation cases are typically the sub interest is to protect party who's seeking subrogation interest in whatever the party who's seeking to impose liability may recover right i mean that's the standard and that's why they're in the litigation right the plan is in the litigation and if there were a bit if there were if there had don't know it was a long time ago that i was a state judge it's a long time ago that i've taught about any of that but that's just the way i remember is it done differently it is typically when the subrogated carrier is involved in the case and they are pursuing their own claim there's their subrogated interest the plaintive the other plaintiffs because there are two plaintiffs pursuing parallel cases the other plaintiff is pursuing what they have standing to pursue the medical expenses that were paid the pain and suffering while they have made they have standing to pursue the interparty his standing to pursue the whole thing it's just that the plan has an interest in whatever he recovers in that the standard conceptualization not necessarily in a case like this this is this is a in a recent a plan that was claiming that the federal law preempted the state law the pla ability to recover only arose if mr moore recount or patel maybe mr moore didn't have to pay him back if they did recover anything if he did recover anything number that the jury is saying we believe that those medical expenses you paid your intitled to it's their claim to make the other plaintiff here's what we believe that you are entitled to for your pain and suffering our medical expenses that that weren't paid we did not where we were known and rissa carrier to be able to claim preemption or to be able to remove a case to federal court that's kind of beside the point isn't it i mean the situation here is that your client tried to defeat the subrogation interest back his agreement with the lab the party upon whom liability was imposed and the question really is at the end of the day whether he can do that we didn't defeat it clearly the the written settlement agreement that is part of the record in this case it's an exhibit to mr goodson and mr barbee heirs affidavits part of the record document forty eight dash three and dash four we preserved their right of subrogation as a matter of fact the lawyer for the county said playing was god so why are we here now we're here now because the plan for whatever reason announced to us because we've not been able to discover why and lists here that was discussed about whether the summary plan description is a controlling plan document it is true that there is not one single document for the plan that reflects all of the information for what are written  is required to have under arrest what the reason for that is like many health plans they use multiple documents that interrelate that satisfy all of those written requirements as well if you're a good or reso lawyer you might go back to your client and suggest that they sort of put this in at least what appears to be traditional order and and not leave themselves open to litigation over whether over a simple question why is this a plan or isn't and if it isn't where is the plan and cetera et cetera just my little piece of advice for the day your honor i guess it's a response so that the trust agreement that cited in the record that satisfies some of the written requirements what's the defendant's point in their brief and we acknowledge it satisfies three of the four factors the fourth factor specifically that the basis on which payments are to be made to and from the plan right and that's what the employees are interested in and you know so maybe you need a plan that's all i'm saying that's not reflected in the trust agreement but an article cited and it does say a separate document would be created to reflect that  for any and all members of the plan well it might be helpful if it's if you do either said so or refers to another document it might be helpful if there was another document well as our response is  in proceeds that may be a bad plan beneficiary i believe that the term as derivative is distributive of the insurance or of the player numbers claim which is primary it is dependent upon it so you have no been a result without as well moreover if they did in the settlement preserve the subrogation right that the plan and the next thing that should have happened was a check point a reimbursement claim under was had accrued that had it did not accrue before and his son will make for the reimbursement plan to accrue as recognize a federal law there had to be a subtle met or an award or something a jury verdict so the has to be an adjudication of liability of the release tortfeasor the claim itself was the bringing of a common law negligence claimant state court then if you turn to the text of the provision and i believe the defendant just in their brief it talks about recovery from any party in the definition of a party in the plan language in the summary plan description is a person who caused bodily injury illness or sickness now in the underlying tort case there was never any question about the tortfeasor had caused the accident and had were driving a vehicle purportedly on an emergency call run struck mr moore and cause a traumatic brain injury the issue in the state court litigation record settlement was a click ability of an affirmative defense under revised code twenty seven forty four but we would submit that inherently to apply an affirmative defense you have to be conceding that you caused the harm the onus and cause the injury so under the reading of the plan language in the when it is construed with the title the tax in the definition of party being a person who caused bodily injury there is no question that the district court properly interpreted documents that were closely going back i believe to the one nine hundred fifty s fifty years before mr moore was on this plant he received benefits for two months in two thousand and seven and it was within the sound discretion of the district court to would just like to clarify and correct just a couple of things that were said there but mr hadi has has indicated to the court here is is factually incorrect and in a lot of what was said i against the county defendant they were a plaintiff in the case pursuing their right of subrogation against the county defendant and we preserved that we did not release it we didn't harm it and i just want to  i suppose to what is the basis of liability the arguable basis of liability for the county arguable basis of liability for the county to pay the subrogation claim is that is that what you're referring to because they acknowledged in mr barbee years affidavit that's part of the record in this case he says in paragraph if teen i believe that defendants would have prevailed on their immunity defenses against the plan however if defendants would have lost the him to kind of minutes and lost my clients were prepared to plea to pay on their claim he was but he had their money and said you prevail on your subrogation claim that you're intitled to it because of the immunity defenses i have your money i have the fund of money here and i will pay you that's that's that's the fact that somebody has got the money to pa doesn't mean you have a valuable theory of liability against them that was what was being briefed and that's absolutely would have been briefed they were saying there their position w preempts state law i think we're not getting anywhere about the nature of a subrogation dress but let me just let me just point to also to the cut to the contractor to the agreement that we talking about and this is on the following page page id number eighty that is contrary to what mr hardy just said that he was required to to dismiss his subrogation claim it says acceptance of benefits from the plane for an illness or injury by a covered person constitutes authorization for the plant to sue compromised or subtle in the cover person's name or otherwise the plan absolutely had authority to go forward and make it claim and this the county was there standing by ready to pay it if they if they prevailed on the separate and access language contained that i read earlier on  you're saying that the county should have when the settlement occurred the county should have deducted thirty five thousand dollars from the five hundred thousand dollars and cut two checks instead of one well they just maintained a fund so they're going to design a good way and it's their house to go to court on behalf of your client and prove in court the liability of the county is that why you see it happen you didn't get that far what what what authority what authority quick case law can you cite me in which that's what happened and mean acceptance of benefits from the plan for an illness or injury by a covered person constitutes authorization for the plan to sue compromised or subtle in the covered person's name or otherwise what else could that mean well that you know you can put that in a plan but if that's not what the law permits yeah mate it's no way doesn't it has no meaning at all if  nobody recognizes the right of the of a recipe to do that if subrogation doesn't work that way it was no argument by the defendants in the tour case they were they had intervened into the case they were making their subrogation claim based on theorists a statute and they were going forward on that separation claim without any hindrance on our part and in again i have to just keep going back to what else does the language mean in the other party liability claims about the access and separate property if this wasn't a case for that i don't know how what other set of facts could be i believe your time with you both for your arguments i will consider the case carefully thank you