abolish common law protections for insurers when it when it enacted a recipe and if you extend that you could also say that the u s supreme court intend to abolish those same restrictions when it incorporated client the first question seems easy and the answer is of course not there's nothing in the text of a wrestler that suggest or even hints that the common law protections that existed prior to it's an act that are now abolished all of those that set of rules that have been around for decades to protect insureds when it came to insurance policies and similarly for the u s supreme court they deference means that you ignore all of these time tested rules of insurance policy interpretation and drafting in fact when you look at what they have said they have specifically counseled against that kind of or the firestone court stated any policy or standard that affords less protection to employees in their beneficiaries than they enjoyed before ressa can't stand the glenn court reaffirm that by here under under ten circuit precedent event well as far as the decision itself i think there's a think you still have abuse of discretion in terms of what this court has said previously however when you look at the miller case and you look at what the u s supreme court case it's i think those cases were wrongly decided ok well that's ok but for you to say that president binds this is wrongly decided doesn't get you very far before that's why i asked like what we're bound by well i think you've got two different sets of precedent from first that's ninety nine miller's two thousand and seven donnelly default to that earlier already i don't think you do because for one thing i don't think kimber dealt with an insurance policy in miller did so i think kember's distinguish by the intent of congress to provide enhanced protections for employee benefits and the supreme court has recognized on numerous occasions that while trust law is a starting point for developing the federal common law on arista we need not follow trust principles were trust law is inconsistent with the language of the statute its structure or its principles abolishing the time tested rules of interpret ing insurance policies and also that have to do with drafting standards and they dovetail because the rules and force the drafting standards abolishing them in the name of deference definitely fits the bill of perhaps it policies doesn't mean  e can't be used doesn't mean deference doesn't have a role in a risk cases when you specifically talk about interpret ing insurance policies then they need to go in this court on a politically agreed undermine the policies of a risk which congress and acted to provide employees with protections for their content contractually defined benefits for the court in miller also noted that rent would afford less protection to employees and their beneficiaries than they enjoyed before arrest was an act a result that would be at odds with the congressional purposes so you look at what this court s miller you look at what the supreme court said in firestone in and when and that's the exact situation that you have here and if this is true that an unbiased court who owes duties to no one certainly litigants other than to correctly decide cases undermines a risk by not following these rules of insurance policy interpretation then it has to follow it certainly follows that  conflicted insurance company employee who owes a duty only to the beneficiaries and the employees equally if not more so undermines arista when they fail to employ those same standards can i stop you there and just back up to make sure i understand argument kimber and miller both disability cases and what i understood miller to say and i think i'm the same place where you are which is had notes thirteen and fourteen about the rule constraining ambiguities against the draft or at the court distinguishes between two things first of all are we under the abuse of discretion and was discretion given to the administrator and then that instance ites take kember as though that's still good law that you don't do that whereas then if it's done noble but just to say that the discretion has not been given to the administrator then we would apply the rule take it against the drafter and all that and this is certainly the former case so why would kember not control will ultimately the question is can deference swallow the time tested rules of insurance policy interpretation when this court acknowledged this court acknowledged that doing so undermines the purpose of a recess i mean if it undermines the purpose of a risk that it undermines the purpose of the rest period end of story so how can that happen just because of deference the answer is it can't unless  what the supreme court said in both going and firestone and that's my point the supreme court while it has talked about deference has never said the different swallows these things and the courts are duty to beneficiaries that this court doesn't get to the same place how's not the same thing that's the point and if you look at miller and miller they quote you quoted the ninth circuit and talked about in that in the same place at page twelve fifty four they quote the ninth circuit about the reasons for these insurance policy rules and when you look at those those are employers feel they can afford them in the glint in the balancing act in the when court specifically addressed that and said fish n c encouraging employers to offer all of those the congressional intent to provide protection for the employees outweighs all of those others combined and that when the going court and the way i mean when you look at what unchanged from the balance of all these pesky insurance laws that existed for a hundred years prior to the arrest and the claims and as a result the klein's process was decidedly not the result of a principled and reason deliberative process and it's largely because unum believes that it can do any of this post claim underwriting come in at the end offer some something something about a definition and then it'll be rubber stamp in this case similar to what happened in glenn and you look at the six circuit in when they talk about cherry picking facts to support a denial and outright ignoring others look at the claims filed here look at mr kelly's letter to them where he listed a whole long line of cases and said here i'm going to summarize them or read them all i ask you to read them all and they promised will give you full and fair consideration didn't really want to  read the claims administrator the person who has the discretion to make the the in any way i don't know that anyone read all of them alim i think the deal are that lawyers read them and shouldn't  one reason for the claims in this treaty are to ask the lawyers look at these cases and give a legal opinion it's not unreasonable to ask for what the legal opinion at least for someone who writes coverage opinions for insurance companies needs to discuss both sides of it there was no guidance provided to the person making the decision on how to interpret these cases there's no discussion about what this court and the supreme court says is still the standard which is you need to interpret from the standpoint of the reasonable insurer and so what happened was well the head unit made a good faith attempt to adjudicate the line that could and should have found in favor of the polls much like the texas case with this which the same examiner granted benefits despite the fact that the insured charter turned in front of a truck failed to yield which is a violation of law she paid the going and then she got downgraded for it she got criticized for it in two months later when she decided disclaim she wasn't going to make the same mistake again the bottom line is that when a potential insured reads the crime exclusion he has no problem except accepting that loss is sustained in the commission of a crime or properly exclude the caldwell's it's up but the fact is pursu to all of the case law speeding and nothing more is not a crime and supposedly at least that standard that you look at it from the standpoint of the reasonable insurer is still supposed to apply under the old rules  couldn't get away with this lack of clarity you see it in miller you see in the last minute case the courts would uniformly reject the supposed claims underwriting and see if you meant to say negligence sec if you meant to say any violation of law the bottom line is that in the name of the deference employees and beneficiaries are left with less definite policies and less protections than they were for us and according to the wyoming supreme court when that happens as a result of a policy unum that would withstand any standard review i want to talk about that in a moment but before i do that i really need to correct this fundamental misunderstanding of a risk and what it protects it does that you just heard arista was an active to bring uniformity to a lot of government employee benefit plans many of which including this one have beneficiaries and participants that are in different states and so the a broad plan it's up to the employer the plan spots and the fundamental fundamental principle of a risk is that the plan must be enforced as written or if it does not confer substantive benefits the only confers are those promised by the plan and thus you have to enforce the terms of the plan is written and you can't ignore any of those terms such as a deferential grant deferential read like any other provision in the plan must be enforced as written because again the circular argument about what a recipe tax or isp or text the benefits provided by the plan if a plan sponsor decides not to delegate discretionary authority to need ministry or the plan sponsor has made a choice to let the courts decide in the first instance what those benefits are if by contrast the plan sponsor decides to confer just for reasonableness in court those are the benefits that that risk and first no substantive rights deferential standard applied in all cases where deference is applied pursuant to a discretionary grant the glen case the plaintiffs argued don't apply trust trust deference because there's saying don't apply trust law deference the court said in what language could not be clear there are no ad hoc exceptions to differential review why because it promotes the in the funder fundamental is determining the reason will most of the construction of the contract by one of the parties to it instead of considering the length of the contract itself there's a string of cases no question but can you speak to and when you do have a conflict as there is a conflict here yes between important depends on whether there's any evidence that the conflicts influence the decision that there's the factor though to how in other words when we have this factor and there is a conflict does that reach how much deference we get to interpretation in policy terms i don't think so you know i think the first blog was it is unclear you say you don't think so but well the what confused me your honor not confusing but that the notion of expressly rejected because again a sliding scale before demand was the existence of the structural conflict in of itself allows you to slide the difference back when rejected and it standard and there is evidence that the conflict influence the decision then then maybe it's a tie breaker in that instance that the only place i could ever see that coming in on an end that's the policy manual here on the policy right but i'm not know the  is a two part test applies to crimes or attempt to commit the crime so that of the broad spectrum of conduct that might be applicable but it's a two part test there's a causation requirement so the causation piece really informs and narrows and restricts the first part of the test and says it tells you how serious the crime has to be for the for the intrusion to apply and what it does have to be serious enough to cause the death and that's and that's what the provision does not of the plans manual as to as well there are certain violations traffic violations that are just inherently or even a case specific matter not serious enough  to to cause a death and a great example of that is what the district court in kansas did indy riling versus versus some life case in that case you had an insured who was driving on a suspended license exclusions and fart said causation has to do something more than but for the driving on a suspended license piece just got the person out into the road but that wasn't the cause of the accident and therefore that's of the type of traffic violation that this is just not going to apply to and that's how you know i'm in you know interpreted as well as manual that provides broad guidance for the claims handlers and makes clear but listen every case is unique they al guidance you know richard doesn't doesn't dictate how your guide should should be how clear it should be i think if you're writing guidance for lay people who are making these decisions you know you're not going to go into all those details about how the  violations even if a couple traffic violations even if they cause there are not uninsured i don't think that's what it says it all your honor i mean it goes out of its way to says to see every every case is is you please unique did they you're relying on general language and judge harkness planning directly to the language of the policy manual and that's what it says it says that losses was intended to exclude losses which result from an and so that would make me think that unless you have a d y and you just have a regular traffic violation that it's not covered you mentioned les readers and i i think that's how a lay reader would read th was dealing with in the in the harrison vs vs human case so they get there it's crimes and violations there's overlap but to those things and the the fact that you them is trying to provide some broad guidance to its employee s and making crystal clear that what you that every factual scenario is different i mean it goes out of its way several times do that again i think there are there are there are overlapping scenarios can violations and crimes and you know he's just trying to make sure that that the claims administrators you know look at each factual scenario differently because of the causal connection is is definitely in the reason there is no reason to to accept in when you're speeding seventy four miles an hour around a curve a turn on a dirt road where the tires actually leave the surface of the road that's not just in your traffic violation say that that's a serious crime serious enough to directly cause a death and i mean make sure i understand what is the what was the final police report say he was going seventy four but it was in a fifty five it's unclear whether those thirty five it's unclear what the operative unit is it's the posted speed limit was thirty five and there's a provision in wyoming don't use this is the speed limit on a dirt road is fifty five  unclear but that the crime that you've always relied on was beating there wasn't reckless driving or something more serious and so you're stuck with speeding and that's what the crime we're looking at exceeding the speed limit don't think that's what the provision was supposed to apply to that you could say if a person's going one hundred miles an hour or seventy or that's reckless driving that's what we're relying on here but so that becca striving i think speaks to in wyoming at least speech to rec disregard for personal property and so if it you know if it happens to be huge your self in your car again that's a reason why it says crime it doesn't say only serious crimes if you start to apply to serious crimes court recognize would have less protections than they did before us the one that has the saying that can't stand the coins manual here's the thing about the claims manual when you read it and what it says it tracks all those cases that attorney kelley sent to them at the very beginning that said dui speeding or something more weaving in and out of traffic avoiding arrest something more is a crime but the claims manual says that no when you've got traffic violations it's not the claims manual is just the same as the cases that attorney kelley sent to them and had they interpreted the policy consistent both with unions intent and importantly the harm to our final case the day seventeen hyphen eighty ninety two met this vs town of evansville