i'm told that parties are hearing all cases counsel for the parties i should say so start right away standard security life insurance versus iraq good afternoon your honour's mayor please the court can read jordan for appellate process happily bryan berard and reasonable reliance i'd like to summarize four points before addressing the statute of limitation and release issues and just as a preface the fraud alleged here is sending the release form which falsely convinced berard he already had a repayment obligation in the event of comeback regarding his private policy as he did in his c a policies the four points or number one the lower court a rolly asli applied a reasonable reliance standard that ignored the notice component that this court applied to reverse summary judgment for highest song and key well corporations who were sophisticated parties faced with some hints of fraud unlike berard who is an unsophisticated litigant with zero notice that his insure was rewriting his policy with the release form number two three he had the actual policy we signed the documents that are issued he had access to the policy what the lower court ignored is whether he english it was about ten pages long right that's all correct that's all correct but my next point number two the lower court issued a conclusion ruling regarding whether this gave him the means who submitted a declaration saying my starting point was these release forms that i already saw a signed that said he had to repay and we were worried what happens if he goes out and falls on his face on day one and yes to repay six million dollars etc so i was hired to negotiate how to repay i never got involved in whether there was any obligation to start with that he should repay same no the that's your honor raises a question of fact because the record says the mr reilly the attorney specifically says i never got involved in those releases i never looked at whether he's supposed to repay yet you have to recall that one of the things that made this subtle ineffective fraud so successful is there is a repayment obligation in the other policies in the c b i policy so some hockey players are forced to repay and mr broad would have with the other policies so this attorney comes on his sole job is to negotiate well what happens if he makes a comeback and it doesn't go and he would think that the starting point for that was to understand the nature of the coverage that was there to begin with and yes there was a repayment obligation undertaken there after but to understand how that policy worked and what his leverage was when it's very difficult to believe that it wouldn't have been ordinary care to look at the underlying policy when it go she just months later just months later the repayment terms your honor i'm afraid that raises questions of fact but you know you can say i believe as starting point he's looking at a form that says if you make a comeback you repay six million dollars he said it is that duration i'm not an insurance specialist etc there is nothing in this record that says that a light bulb should have gone off  his head that this was improper to begin with that standard rewrote the policy to bring in the its policy would berard when it sent the release form so there nothing cited that you can impute from a lawyer to parole board and there's nothing in the record that suggests that the the attorney as a matter of law had to look behind the starting  precedent for doing so and it was dismissed on reasonable reliance that supposed to be fact intensive ignoring that he's twenty three high school only focusing on what i asked you new york says that when both parties have access to the materials at your your whole argument is that the things they had him sign were fraudulent because the policy did not obligate him to make repaid well both parties had access to the policy and so so to that extent your client cannot reasonably have relied on these new documents for what his to arguing that brian berard actually did have the repayment obligation that the lower court ruled he should have known that he didn't have it's not that straightforward issue it's not like somebody sent a release form no one million dollars and he knows it's six there is language in the policy the refers to never being able to return to your occupation and that's why i feel there's even no explanation in the lower court decision as to what language exactly is it that supposed to tell a lay person that he doesn't have this repayment obligation not nothing he didn't have and your honor to your point the standard is not simply you have access i have access you're out of court that's not that's not the that's not the standard the standard has to be also that there's some reason why you would that it this standard cannot be read so that one part of it has is completely has the information completely unavailable and the and that is  that is explicit in the standard it says we cannot it i'll just quote it be it they are referring to a statement in roman cannot be viewed as a stablish ing that under new york law the information had t available only to the defendant and absolutely unknowable by the plaintiff before alliance can be deemed justified and there are numerous cases where there's access to the information there's access to the information but there's no notice there's no suspicious circumstances no suspicion  thank you may please the court my name is granting room representing a standard security life insurance company of new york like to just briefly address and clarify one issue which i believe your honor touched upon which was that the fraud alleged here is quite simple it is the idea as we understand it that the policy did not contain an express repayment obligation and that policies had an express repayment obligation in them and that is not accurate they did not so the repayment obligation arises under those policies or in the collective bargaining agreement so they're not in the n h l or n h l pay policies either just like this private policy could you trust what consideration there was for the for the release and it does look like a new term requiring repayment was appended without any discussion about how the insurer was compromising his claims or accepting that this was a permanent total disability for certain purposes and for going any further investigation or what have you it just seems like it's just tacked on you have to explain thank you your honor and i point you to the declaration of ashley lawrence at which is in the record at one forty nine to one fifty one he was the representative of the ensure that made the final recommendation on how to settle this claim and the evidence from his testimony is that at the time and the evidence in the record is that mr berard disability the permanency of it  was an open issue the record reflects that throughout the fall of two thousand into the early two thousand and one mr barr was making every effort return he was on the ice playing record also reflects doctors saying he's doing surprisingly well and even the doctor dr chang who eventually said gave some words to the effect that he could not play again just in january that bargained over there was consideration in the sense that the insurer would not have if he did not sign that mr berard scuse me if he did not sign that agreement insure would not have immediately paid the benefits they had not reached a determination that he was permanently told it's a question was a discussion about the repayment of the nation at the time they were negotiating there were in the obligation that's all the record reflects that that indicates that mr doyle back his broker knew about the obligation and it was discussed i don't i don't see anywhere else in the claim file that talks about of the repayment that's correct they the policy allows for the insurer to have an independent medical examination and if that independent medical examiner determined mr not satisfy the definition of total permanent disability then the policy then would be required to meet the controversy be required to submit to arbitration an arbitrator would then decide which doctor he or she believed there was also the opportunity to conduct a examination under oath mr berard that was waived when the insurer decided to settle the claim on the basis of his representation that he was permanently and totally disabled and that is no small concession that that also was not memorialized in the release agreement right correct correct in fact you could have go forward if you chose to can you can you can i'm saying that there was was there any document preventing you or commitment that you made venting you from going forward and if a question was raised  yes well as mr lawrence says this the repayment obligation is a standard provision when these in these kind of permanent total disability claims in the you can the case of an eye injury which was significant open issue and the insurers in these sports policies know that the athletes want to come back how they define themselves they want to do whatever possible to return if they can and so but the policy only pays in the event of permanent total disability so to you to address your question your honor they this was a concession to settle the claim at this point with the understanding in his representation that he would that he would not return to play again he was permanently totally disabled as defined by the policy ok well i would just just like to then if i can in my remaining t if i could summarize again the position of frenemy let me ask you for the question that your opponent argues that it's important for us in looking at this dispute to take into account mr rudd's lack of sophistication in signing off on the release in that you know three releases came around the same time and so on and i wonder if i mean you you seem to argue that they both had access to the policies and to read the policy then and so on but insurance come policies can be very complicated and difficult to understand for the ordinary person do you believe that it's never appropriate for a court to take into account in looking at the kind of notice and and relative merits of an argument that the relative sophistication of the parties i do agree that their consideration of the sophistication of the parties is can be relevant but when we are in this case under these facts where there's evidence that mr berard was represented by a sports agent and that his agent was aware of repayment obligation and he was represented by a broker who helped him purchase the policy and was clearly involved to some extent with the through the claim process and it particularly given that after the repayment or the release agreement was signed he a lawyer to negotiate on his behalf the repayment agreement which incorporated by reference the release agreement whether or not mr broad himself was sufficiently sophisticated it's clear he had agents that were sufficiently sophisticated and that represented him in that that their sophistication is imputed to him and says reliance we can look at those in your honour's first of all the statement by mr lawrence we wouldn't have paid if he hadn't signed this this is completely and utterly refuted by their own documents they sent him a letter that said our medical consultant has finalized his determination that your point why i mean i would insure ins company paying six million dollars for a permanent disability and then take the risk that it really wasn't permanent i mean you know i think it's hardly surprising that they would want some kind of remedy in case it turned out not to be permanent well they could and one could have contested the permanency they could have and that would have and in rather than contest and drawing out they agreed to pay the money with an understanding that if it turned out to be wrong that he would have the money back if it seems on remarkable to me they never told him that and that's why it was improper let me point out that on this issue of whether because he had the policy this without notice to the insured for its own benefit that's what i am except it's got to be for its own benefit that gives rules to rise to a fraud claim that was specifically by the court of appeals not defeated because the policy holder never read the policy and not defeated by latches and that points to one of the factors that has to be considered here is the relationship you have a trusted insurer and a trusting hockey player who knows that insurance somehow affiliated with his league with his hockey league he's got no reason to think there's been nothing controversial in this claim they didn't say boo oh we thought think you're disabled this looks like a routine claims process they send it to and molly is recovering from my surgeries at home with his parents they don't copy the broker and they say if you want your money sign these forms and he has no hint no hint that these forms don't match his pre existing rights and as a matter of law under head a court of appeals as recognized by amec second circuit the fact that he  a look at his policy does not defeat the claim for fraud that rises when unsure changes policies and doesn't do what your honor just suggested that they were in fact which is oh well rather than complete our investigation will do this they did complete their investigation your honor i submit that's why they did this they knew if they told berard we're not paying you he would take them to arbitration and when