morning members of the judges of the panel my name is charles kind of back i resent mr hoke like to reserve three minutes rebuttals the other three years of before the court and i'm going to start with the easiest one and that is the common fund  argument in the complaint and b i saw it repayment of the entire sixty eight thousand three hundred ten dollar lien without any reduction for terri's fees or cost in that regard to paragraph sixteen of the complaint b i brought an action and it said i will request for reimbursement in the amount of sixty eight thousand two hundred ten dollars and thirty eight cents and b i repeated that demand for sixty eight thousand two hundred ten dollars thirty eight cents in the prayer for relief the common fund doctrine fairly reduces a lien or is claim because the person has to pay attorney's fees and cost to make the recovery and the common fund auction simply says as a matter of fairness if somebody is going to get intitled to a full reimbursement and they had to reduce it by the attorney's fees and cost of mr hogan card this this holding comes all the way from the supreme court in a matter of mccutcheon versus u s airways and essent read into the document according to mccutcheon if a governing document does not specifically write out the application of the common fund doctrine then the common fund doctrine will be read into the into the document in this case it's clear that the document did not obviate the common fund doctrine as a result and b i was required to reduce its lien demand from sixty eight thousand to approximately forty five thousand but they did not do that they demanded twice in their complain plan by demanding more than they were entitled to under the plan under eleven thirty two you're entitled to have a reimbursement a recovery of benefits do they demanded more than they were entitled to they that dealt with the common fund doctrine so that's why it's still here because the judge did not say i disagree with you on the plan i disagree with you on the service agreement the judge said i'm throwing the entire case out including the common fund claim and that's why we're here so and as a result of that the money that was entitled to that is approximately twenty two thousand dollars had to remain in escrow during that time he lost the use of it during the time he lost interest on it during the time he had that he couldn't invested pay off bills of his life raises daughter and as a result those losses occurred now it's only m b i did concede that but that doesn't mean that for the time the money was held in escrow from mr hope for the time that they conceded and we were able to release it that he had losses in that time period and that's what that portion is abou b i said well what were his losses he didn't have any losses because we all to be let the money go they ultimately did when they realized that it was wrong but hoke did have those loss of income loss of use money that i talked about however even if there is no l culpable for certain the risk of violations even the absence of an actual injury to the participant and for example in joining something in the future the person hasn't actually lost something at the moment but you have standing to enjoin something that would be improper in the future so under a risk it's not only actual losses but it's actually ability to enforce things to enjoin things to declare things to have the terminations made that also applied now the second item is the more interesting and your honor it can be and i'm going to highlight something this this claim arthur position is that the s p d here is not also simultaneously the plan and here's distinguishes it our position is not that the s p d can never be the plan but when you have only one document and there's only one you can't simultaneously be a summary and a plan at the same time those other cases you're on are incredibly different and that there is actually a plan document that incorporates the s p dig for example they will hold on you say you said a magic word to me you said the plan document incorporated the s p d yes what about here when i look at the administrative services agreement the first where is says various benefits as set forth in the attached exhibit a which is a summary plan  incorporated here however your honor that would be a perfect interpretation except that the court then said the eight the service agreement is not the plan because the service agreement says exactly you said our position as actually our third position is that the service agreement is the plan but the court said no it's not and here's the thing the service agreement does not permit reimbursement it's blank it's void as a result m b i cannot say that the service agreement was the plan because if m b i says the sort of is it really blank yes lady if it incorporates the s p d which it does provide now it's not because remember the plan document is the one that has to contain the subrogation this is exactly what went on in mccutcheon and cigna the plan document is the one that has to control that's the one that says it for mccutcheon in the plan document did not have reimbursement the s p d did and in both of those cases u s supreme court cases signon mccutcheon the court said you look to the plan but not to the dig so this is a mirror image where if the service agreement is the plan and it does not provide for subrogation and the s p d does the rights for subrogation cannot be found only in the benefits is because we have that magic or no source of benefits exists you've seen the language and the if benefits so do we look to where the benefits are to determine what the real perform a pla gambro involved a rap document that is there was a plan there was a document and the s p d and the word was it incorporated the ok that is not here there is no rap document here so in short what we have and further as as you're on a picked up a gamble relied on the language a said if there is no other document however the reason why the district  did that was because the court had a sense of fairness and said if we can't get benefits for our people for the employers for the employees they from the s p d they're not getting them anywhere and the answer is that's what it means is that even if the s p d is not the plan which it's not the employers or not can you cite a case that says that the s p d alone would be insufficient i would say that cigna v say that the s p d absolutely the terms in the s p d are not the terms of the plan and oren's insufficient that's only if there is also a separate plan document right no no one of the the mistakes that where else in the absence of a separate plan document where else would you divine the duties of the employer to pay the benefits the the duties to pay the benefits derived from a plan however in this case we said that the plan could be the a yes the service agreement and be a said no because it's no subrogation and they lose the courts say we're not going to use the service agreement as the resupply and so incorporate the s p day but the service agreement itself doesn't lay out the duties of the employee urge to pay benefits right that's exactly right so that seems to me that that's not a very so in and of itself is not a plan document that divide defines the rights between the employer and the employee write the plan documents plan documents frequently will incorporate other things and most of the time it's an insurance policy usually and it's a plan with well say this is an official plan and we incorporate the health insurance we incorporate the accidental death and disability and those documents will w contain the benefits that employees get but what happens is when it comes time to time to the subrogation aspect the repayment the plan itself is the controlling document and this is why we went through  pennsylvania they came out of the western district where i am the judge then said all right we now have a plan document we have an s p day we got to see what the story is and the court ultimately concluded that the plan document doesn't have s that but that doesn't matter kind of record i know what you're about to run out of time would you like to reserve some i've reserved yes or thank you very well thank you in an forcible rissa plan document if this court so holds it will simply be affirming longstanding a circuit precedent as stated and gambro and also aligning itself with every other circuit court to consider this issue since mar i'm confused about the forty five thousand bucks i thought you all agreed that it wasn't even the case you know it's kind of moot what's the truth well the fact the matter is a plan paid sixty eight thousand dollars in benefits on behalf of mister the we cannot communicate hawtrey suit to determine you know what the status of the funds were we found in a complaint we were we learned that only forty three thousand dollars were held in trust by mr hucks attorney we immediately released  the the twenty thousand dollars and then asked the court to enjoying for the duration a lawsuit only the forty five thousand dollars and then we subsequently followed a motion to dismiss affirmatively advising the district court that we were only pursuing and eleven circuits have all held that a plant can inforce a reimbursement provision found only in an s p d where there is no other benefit defining document as this course is once again faced with a situation where a recipient participant receive benefits found only in the turn of the conditions of an s p d yet after receiving the benefits a plan participant then seeks to disavow the very document upon which they receive benefits council let me ask this to the extent there is a ambiguity or question here about what document is the plan document and whether that document has a reimbursement provision in it who created that m p that ambiguity who's responsible for  that the ambiguity would be created by the planned sponsor and the claims administrator who and so why should they not or should not be construed against the person who created that ambiguity here rather than the planned participant well i would say your honor there is no true ambiguity because the seems to me there's a big disagreement here about what's the plan document and what's the s p d and whether they're all one that's the whole issue here well the s p d states that the plan is comprised of two documents and administrative services contract and in s p d the administrators services contract is simply a contract between the claims administrator blue cross blue shield of north dakota in the plan and what the purpose of the administrators services contract is is to allocate the responsibility between the plan and the claims administrator and gives the claims administrator permission to perform certain tasks on behalf of the plan and these include court consider this issue has said no what are we supposed to look at what points to the statute i've got i've got to step on his question for one second yes supreme court says there has to be two right well what the supreme court split that's what they they carefully tell you and him are quoting the also believe that it's a form over substance situation and in that the supreme court m g m palmers noted that one of the core goals of a risk is to create a system that is they give unlike pension plans which are highly regulated employee welfare benefit plans are are given a large leeway to design those plans as they see fit in the their approach allo circuit this circuit in the eleventh circuit and it goes back to to this court holding again both and you know that it would be nonsensical to read the plan in such a way that would re and so it's our position that and again there is a plethora of federal authority for the proposition that an s t d can serve as both a written and instrument and as speedy and to my knowledge there is no authority to the contrary post to morrow and this isn't as i said in keeping with the purpose of a recess and we believe that there is only two rational conclusions here and that is that the s p d is either  a governing plan document or b it is incorporated by reference into the administration services contract are we it is is our court in correcting gambro because they put where no other source of benefits exists we we make it sound like just in the sentence and i read it to your opponent that you look where the benefits are and then that defines a tell should tell where the summary plan description is p t is the formal plan regardless of its label correct your honor and that's wrong though right you know and are clearly says that that's not what you're supposed to do you don't look at where the benefits are right we know where there is truly a conflict between a governing plan document and a summary plan description if there is only one document then those doctors can be and then there is no conflict and this court's also noted post tomorrow in the insurer the s p d was integrated into the terms of the insurance policy council that's a reasonable expectations cases in that it basis believe you're so young or is that in a recession all a reasonable expectations approach were to receive the documents here they were to look through the administrative services contract they would not expect to find any benefit defining language in that document they would expect to get the s p d in c which is identified as exhibit a to look to the benefits that they're going to receive and i know a lot of insurance law has reasonable expectations that i don't think that's part of a recess now and i realize this court has that sense that you're referring to about what the participant would reasonably expect do you think that's just a rationalization well i think that it i think that it's a statement of of the fact that we have to have a document that defies the benefit or risk says that there has to be a written document that defines the benefit and here there is only there is but one and that's the summary plan description summary plan description in that case or summary plan description that stated that if there was a conflict it deferred to the language of the trust agreement and what the ninth circuit held was that that the trust agreement did not provide any benefit terms but that all those terms were found within the s p d and the court refused to interpret the plan such a way they were render it offering no benefits at all which you would have to do if it enforced only the trust agreement and so what the court there did was found that the trust agreement and s p d together comprise the terms of the plan and the summary plan description provided the operative benefits language in force the language found within the s p d council let me ask you just a little bit about the parade of horribles were worst case scenario where unless we side with well your honor there would be no plan document for the employee to look to to say hey i'm entitled to get you know my treatment for strep throat and tired to get these vaccinations because why would this court have to reach beyond the the issue before us which is whether mr polk is required to reimburse him because if the s p d is the only document this says what benefits are provided and if there is no plan document that says that in this court so found why would the holding go beyond the issue before us which was whether mr hope cast remembers m b i a well then the plan could very easily say that under a circuit precedent there is no document this says what benefits we have to provide it reaches not to provide benefits in accordance with the s p d will provide benefits not only also you now that i think you're shifting ground a little bit because your very first where is says you're going to give the various benefits that are in exhibit a correct but if the plan has to be interpreted in benefits pay in accordance with the exhibit a then that means benefits that don't have separation just as well benefits have come with certain rights and obligations and and part of that is that is that in a risk the benefits for taking a cell phone to plan there's a finite amount of benefits available is that there's going to be reimbursement recoveries if you have dollar claims and often how dollar claims come with a reimbursement because it's the result of a personal injury accident why couldn't your attorney simply draft gambell and what's what your best case at johnson controls here well your honor i believe there is actually a case that i think that it deals with conflict language and it was actually one written by you  where you said that you know that there is no conflict unless there is truly a conflict and and here we have no conflict because the s c clearly incorporates the exhibit a sincerely do you want to dress the johnson case twenty fourteen it's after a mara do you are you familiar with the johnson i'm fairly familiar with and i know that it is dealt with a slightly different issue in that there was an insurance policy and it document and an s t d and i believe it is probably closer on point to the issue that we're dealing with and thank you your honors thanks mr howard can a backer you have a small amount of time for a bottle some of the benefits the issue before the court as judge grants said is why can't we just follow the law and you are exactly right you receive eleven o two and eleven interest attendants who both require one a plan and one requires an s p day they have their own requirements their regulations about each one that say what have to be in each one varied very specific if one if an s p d can become the plan is the language then regarding an s p d just surplus effect it will never apply to anything how can one document be a detailed explanation of every benefit that employee gets and a summary of of the of those benefits at the same exact time and judge grants are also correct that if the administrator can amend the s p d to include subrogation what happens when it's an insurance company and not a self insured plan the insurance company as the administrator could just change the s p d write in we get subrogation when the plan doesn't have it and then they come out ahead of the game to the debt that you meant to the employees and lastly if you have a plan and you have a n s p date and if there's a conflict the s p d loses but if you have a situation where there is no plan and there's an s p daylight we have here how is it that the they can come out ahead by failing to have a plan and not following the law get a better advantage as a result than if they follow the law the law should not countenance that the people who follow the law are disadvantage to those who don't follow the law and actually create a plan thank your honour's well thank you house of court appreciate your appearance today in your briefing case will be submitted and decided in due course