from her occupation this case it is involves as you know the interpretation of a contract and the determination of the nature of this employee's receipt or any employee's receipt of a bonus when received or the pretext compensation which does include bonus or and the bonus averaging for the period of employment which is to be adjusted on august one of each year the question is what is the word received the pre fire letter that that discussed her compensation package and it was presented at the record page one sixty one it states in addition to your base salary you will be eligible to participate in an intensive bonus plan based on your performance for that year this phone is could result in an additional and no compensation i e payment of up to twenty percent of your earned salary w which is the end of our fiscal year will provide the basis for your fiscal year end ninety eight bonus award so the award becomes the payment but it's calculated based on the employee's production and work and it is only in effect during the bonus period which is the fiscal year while the employee works once the employee ceases working whether be from a disability or takes a sabbatical or whatever they're no longer earning any bonus thirty one excuse me march thirty one through april one each year so there's recognition in the policy that booz allen required to be there about its fiscal year each year boozehound pays all of its employees the bonus calculated on their earnings and the production during the work period it says the basic monthly earnings will be adjusted for bonuses so the question is can you have a basic monthly earnings before an employee becomes disabled employee has not not become disabled unum does not even know they exist out there other than there are a number of one of many many employees there's no calculation of the any there's no claim submitted there's nothing so one honest one i just meant date  b and me doesn't even make sense to apply that before disability what makes sense is where it says bonuses for the basic monthly earnings will be adjusted for bonuses on august one each year is when the claim is submitted and the calculated then if an employee receives their bonus for the effective period that was pretty disability but received it after disability and the beginning it's already been calculated then the contract would require that the office one for that be in need to be adjusted and it would be adjusted by taking all the bonuses for the period of employment of that employee in this case because it was less than three years with twelve and a half months and  disability occurred before they ever translated to be a me to be a bonus payment they could have put it in the contract had the district court interpreted it differently that's what we have here  have both unum and the district court applying the pre disability aug one date be in the adjustment date as a cutoff of some sort you know made the august pre disability august one bonus adjustment  meaningless the regardless of what received language the course however made the predictable of the august one be any adjustment date i phone as earnings cutoff so the court said you're right you are earning a  bonus but we're going to cut it off at august one before you become disabled so if the employee continues to earn bonus up to the date they become disabled they're not entitled to it and emily believes that both of those crossed the line into  period and it was before the august one quote adjustment date but there's no sense in applying the adjustment date because there's no b in the calculated so that one goes by in the contract is august one of each year and then you come up to the dat here you have a b m e that's been calculated it at at the time they did not take into account the first bonus but assuming that they did let's just sort of correct the facts this happened and they applied the first bonus at that time they would have applied first bonus and divided by or taken as an average by the the employment period which is twelve point five months and added that to the b in me which are the the basic salary which was seventy six and that would have produced a number that would have been produced the be in me they would have started paying her benefits on augur one if there was any later received illness that was in effect for the pre disability period that paid later then it would have required the accounting to vision to go ok we need some adjustments made just like they did during the section they go back they take the face salary they have the prior the first bell missed and the second bonus together divided by the period of employment as the contract specifies add that average number to the base salary and they come up with the adjusted the me and you just want to know why only prospectively pardon me and the adjustment would apply then only prospect higher rate of cakes and then it doesn't make sense to have the regardless of when received then why didn't they if they did that and why didn't they say on the other on the first or on that scuse me last august one before you become disabled and in fact this lady had become disabled let's say she was in a car accident at the end of february and and she goes out on sick leave but she can't return to work as of say mid march then you've got all of the earnings the bonus earnings from august y or if you call it a cutoff paid until the normal mid june when all employees were given their their payment she would have lost twenty percent of her income protected and so the sixty percent of coverage would have been reduced to forty or fifty percent of coverage the underwriting manual that might have shown that how it was intended to be used none of that came in which the just that they couldn't support it this was an interpretation applied for this employee and that the other danger and the other importan in fact the employees are paying twenty percent or earn twenty percent because it's based on their production at the end of the year they're given this this check for twenty percent of their salary and most of the partial disability  definitions will cut off or will say you're not disabled if you can earn eighty percent or more well if she had twenty percent income coming in there and the drop  actually i'm not sure that that would work but the concern was whether the the twenty percent income from the earnings that she earned before disability almost like a commission person or or a self of the six myself again had she worked a full year and not been not had her as a son in crisis at all or maybe until two years down the road and she would have received that help when she was out on disability or no bonus and now that she's back on partial referring to three different periods that being october sixth two of which is dated higher to october twenty one date of disability that being march thirty one to april one peach just like here and that in the mid june to mid i'd like to suggest that the most important starting place for this inquiry is to try to effectuate the intent of the disability payment program in the first instance and what any plan is trying to accomplish when it has a determination of what the monthly benefit is and why that is a factor at all i think that there's probably no rule no scheme no statute no plan about which we all could now ask hundreds of questions and say well because i can possibly interpret it this way it could possibly be in this or it could possibly mean that i think we start with what the intent was and frightful thresh with that intent how do we know that without underwriting documents for me how do we know that what underwriting documents because i think that it's a matter of common sense or honor that the idea of income replacement is to replace income that is for and not to provide a windfall there is no then the allocation of a bonus if you work sixty let's say she'd only work six months and she works six my skin gets a thousand dollar bonus i would say well her pay must be her my actually pay that you got each month plus a sixth of the bonus treatment out agree with that your honor i think that's exactly what should take place in this case i do not think that you should take but i don't and in writing at that conclusion i would not take the bonus from the year before or the bonus that was paid for some other period other than the timeframe other than the six months that you identify ok but you've got this to it just happened twice that's all you've got six months in the first fiscal year she gets a why isn't that what she was actually thinking it was not what she was actually paid your out of because the fact that i think it is a wrong is to i think the premise of your question is erroneous because i don't think the bonus was paid just for the six month period it was an annual concerning interacted one way or the other and i mean she could get paid up to twenty percent and i'm told by your point and think that what she got was twenty percent over six months salary ron i don't have an answer for that question i don't believe that it is on the record and i think that what the intent is that you take a look at it on an annual basis because of the adjustment on august first of each year well you put your hands they are o to be computed on our evaluation of your work from now until the end of the year and that makes me think that pair not giving an annual bonus for the six my she didn't work that year and i would think maybe the next year  they don't give the annual bonus for the second six months if she didn't work i understand that your honor to me that doesn't yield the conclusion that this is something other than an annual bonus and if i'm figure into that and i will tell you a straightforward terms that i believe that if the bonus that she received in june of one thousand nine hundred nine was part of what she earned during the time that she was working then it should be counted for that period and a bonus that she likewise a bonus that she received for working a prior period through the flight of the prior period not to the same period under consideration and when we take a look at this policy the language says i think it's great thirty or it says basic monthly earnings means the insurers monthly rate of pretax compensation from the employer regardless of when received in effect just prior to the date of disability and the disability that we're dealing with your honor here is october twenty one of one thousand nine hundred eighteen so we now have to ask ourselves what was your basic monthly earning just prior to october twenty one of one thousand ninety eight that would be the salary of seventy six fifty a month plus whatever bonus we allocate to that month or the months immediately preceding if you want to do an average and i think that's precisely what should take place here  she's paid a bonus later after disability which reflects her work from march thirty one through october when she quit work i believe that i believe that only true in this case so in the first year she gets a bonus for the following summer for her work from when she started which raised i told her i think i could oversexed she gets a bonus for her work bonus for that fiscal year now her last month's pay me i would think would be whatever she got for that month plus a sixth or a little less i mean he would be your honor and and you would do it you would calculate it to be consistent with what you're supposing here and i'm very happy to do that what it would mean is that you would take a look at the bonus that she got for if you want to just of october one nine hundred ninety eight ok but what you don't do is you don't take a bonus from a prior year and say or a prior time frame and say and we're going to add that october as well i think it's permissible i think it's proper if you wish to say if you want to enlarge the language of regardless of when received say well it turns out that in in june of one nine hundred ninety nine she received a bonus but it was really a bonus payment for the month of october one nine hundred ninety eight if you want to say that that's fine but you should count it just one well i guess when you when you get in a double counting is only when you get both periods in you fifty or something you said a month plus a fixed of her bonus that was paid after she after she became his able and if you're saying if you want to do and then you throw both want to says no i'm sorry then you throw both bonuses in because you're dividing by twelve instead of by six and your honor and if you're going to do that then i guess what you do though in in the process of doing that your honor you would nor the obvious one annual adjustment and you're pretending as though it does not exist because and let me try to walk through this for just a moment if i may the seventy six fifty figure is there and nobody disputes that and that's going to be a component of whatever the total number is for the basic monthly earnings as of august one thousand nine hundred ninety eight we have to ask ourselves what was the basic monthly earnings the component is the salary of seventy six fifty and what ever bonus there is that might get if there was no but it's obviously with me talking here we have a once the year and then it's fixed at that point in time it doesn't say and we we will and it's whatever rate is in effect at the time of disability i'm going to quote the language basic monthly earnings means the insurers monthly rate of pretax compensation in the employer and if that just prior to the date of disability and so you go to august the previous last one as it's set forth in the policy and you say ok how we deal with this bonus was supposed to do it on an annual basis and that's why we divide it by twelve and add it to the basic monthly earning and that rate is then fixed and the concept of that being fixed drawn or it is very important and it's being ignored was earned and during the pre august period and paid later and therefore the adjustment has to be reflected i understand your point about being fixed but it doesn't really say if x there is an adjustment date and then it's regardless of  three c let me tell you why it should be thirty just let me just about your and your analysis if your analysis is correct then the salesman is out of money because it's fixed as of a certain date it's a crude before that date receipt later well i think you're right there are there is specifically a difference between earnings and a bonus and the bonus is calculated or fixed as of august one whereas the earnings can be read actually received later if it's fiction as of here which is an anomaly that the reason why it is fixed and so i just want just like public civil service employees that get a percentage for their retirement in many cases of what their last year's earnings fixed as of the date of they would when they retire the analogy here is it's fixed as of the day of disability what do we do with the bonus of twelve hundred dollars that was earned and paid on june fifteenth of two thousand in ok let's let's sit down we're going to calculate it now and put it in put it in the employee's file actually the calculation is done later as of august one right that's correct your honor so we say to six on august one and you have i mean the it seems to me the idea is the august one is a peg date for certain things and then you have to look at what the industry core seem to say is all right let's let's take a look at the what was earns in this accrual period and try to try to make some sense on the documents and i do believe that's exactly what the truck work yet and i don't think that's an it's an odd contract and not not but if it is it's a head scratcher when you sit down and we have to work through it and there are you know i think there probably a number of ways you could go and interpret well now if you're talking about intent we don't have the and go home is not doesn't get me anywhere but i guess my question is because we don't have the underwriting toxins in front of us we have different interpretations what does that do to the argument that has to differently under this circumstance i don't think that the drop for it was unreasonable and i don't think that automatically i think that he had the entire record before him and looked at everything and thought that under the circumstances the the best way to handle this type of circumstances was used to do exactly what he did a partially cruel and i'll have to think about that at least personally for a while but if we're down to three or four plausible interpretations i'm not on reasonable interpretations of the document and my question comes back as here position i think one of those circumstances your honor that what if there's not an automatic i i do not believe that it's an automatic it always has to be done and it was a context that it automatically has to be construed  in particular in favor of one party or another i think that in the interpretation of a resupply and the governing concept always should be is to do what was the most reasonable thing under the circumstances and i agree with that is what you're going to do to bring this back to to the point that that right here your honor the fact that there are differing reasonable explanations for produce the result doesn't mean the result that was reached should be rejected by this court and i don't think that it's an automatic life step because i don't know that you get into a weighing process of what this is reasonable is this is more reasonable and i think that under the circumstances what the trial court did was the appropriate result there is i listen to arguments that i haven't really heard before and some of it left me really scratching my head because  intended it was the simplest thing to state it in the policy that would have been the simplest thing to put in the summary plan description which of course hand at page one seventy and illustration if you earn a bonus here if you earn a bonus here we recognize that the company pays that out at the end of the year but it's since it's based on your productivities we're not going to include anything that you earn if it falls after the pre disability august one date regardless of whether you become disabled on september one october november december january march one you don't get that bon case is a carbon copy of the policy with no explanations with no limitations with nothing to indicate that in this case the limitation is  brief it is the employee who is powerless to draft these documents it's a reasonable expectation given the terms and given the bonus program that's in effect during the fiscal year that that earning will be protected and it's unreasonable to come in and that's a late back and forth with different arguments and a court without any showing of uniform construction of these contracts in the manner that always benefits the insurance company under resta the protection is to provide the employee with more protection than before a risk that was enacted in terms of interpretating at just in a reasonable way and it what did he say if that trial court did something unreasonable you can do something different if the trial court provided a reasonable interpretation and the other parties the both the defendant and the plaintiff's interpretation in this case the interpretation are both considered reasonable from the objective standpoint then you have a a an ambiguous contract that is acceptable to more than one meaning and in that case because the contract could have been declaration and she's still employed there she goes with bonus program all the time her bonus is now not based on a full time salary it's calculated based on a part time work schedule so obviously her production is down from what it was she's very well aware of this program and you know him did not bother to take any depositions did not find out anything to dispute that they presented not a scrap of evidence to show that what she stated is the inaccurate they rel strictly on argument now it's at a in terms of whether the construction would be the most reasonable certainly that might be different under a an abuse of discretion so standard that this policy  that's it if you do what are your choices has no impact on this i want to assure you of that and i always hesitate to mention it but sometimes it seems to me that there are cases that appear in front of us where you think well maybe there's more room here to