my name is chris troup assign me attorney for starling how and the appellant in this case the i think i thoroughly discussed most of the matters that are an issue and before the case in the in the briefing i would like to address to matters that have developed since just two cases that in reviewing it and looking to see whether or not there been any i case that changed the status of the law on the issue of the standard  issue and i'm sorry your honor it we did not brief the jetty in case and that was because in my review i didn't discover it although it was it is three forty nine f third ten ninety eight it was decided in november two thousand and three and in that case the court said that well under the abuse of discretion standard they talked about them on the loose so case and said that the appropriate thing was to send it back to the the posture of this case there was a motion to strike my expert affidavit and that motion was granted by the judge solely on the basis that the standard of review was abuse of discretion well he might just see my strike it is on a different stand when they still do that your hon and i made reference to the accident reconstruction report of the state police which the insurance company never obtained and he may not want to see that is why she was white why do we want to if you're right about issue one nine hundred stand you might not be and you want to cover your b well you may not agree that you're right on issue one but if you're right on issue run the entire argument this is their due it's absolutely correct and i totally agree with that and in an abundance of caution i guess i'm simply further discussing it the this case was decided below on the the term responsibility and i believe the plan language was that they had the responsibility for full and final determination of eligibility for benefits and there are point is that there is ample case authority that says use of the term final is not sufficient to confer discretion the sandy case clearly says that unless it's what exclusively simply said is it is no more than an allegation allocation of responsibility in other words it says that the employer for instance is not making the decision a third johnson versus buckley and so final doesn't really mean final it means final for the administrative process and exclusive means exclusive for the administrative process exclusive doesn't mean exclusive then we get to apply whatever standard of all and therefore use the word exclusive and we nevertheless found i didn't see it as i didn't see that word as being the dispositive word i did not research that word if there are cases out there what i'm telling the court is i haven't i can by i think engram and sandy both say there has to be an unambiguous constraints and discretion i don't think the word explicit does y for benefits or to construe the terms of the plan i mean some some of the need especially with the insured plan of course somebody is going to have to make the final decision for the plan that's easy that's brinker couldn't have meant that well i think with the supreme court the supreme court shows language final determinations of eligibility or interpretation of terms and in subsequent cases i think those that language has taken on special meaning in cases that this court decided relatively early after firestone the jones case the court the court looked at the plane in there and looked at the terms of power to construe provisions of the trust and decided that discretion was  well you know in snow we said that the same kind of thing but one wouldn't really want to rely on snow to kearney i think not your honor ok i don't i don't think snows and i don't think snow did case sandy was a proof of life's case and after kinney it's clear that those proof of lost cases that that language will not confer discretion what about  policies and so i was very close to saying if you don't use the word discretion then you can't claim discretionary authority doesn't quite say that but that's certainly the way it's trying to point now exactly how they're handling and got to that point i'm not entirely sure but it does seem to say look it's not enough to say that you've got the responsibility to make the decisions you have to speak directly to the issue of whether you have discretionary authority you can read it that does not use power or authority or discretion the plan doesn't have it and i think there is a couple ways of making them can be distinguished first twelve that talks about the authority the responsibility the power to construe or interpret turn planes so it doesn't say an allocation they talk about an allocation of decision making authority you can look at our plan here in section twelve of our plan and we talk about the processing like that time whoever drafted it was clearly attempting to trigger the standard set forth in firestone because they say specifically in one sense the room it's more sort of wishy washy language you've got to look in different places to try to come to the discretion that engram panel cite the court cites a bunch of cases that i think support us and they come down in the middle of page twelve o six in the absence of some such language clearly does not permit discretion etc and then it goes decisions that are final and binding are planned does that we use the word responsibility is this case going to stand or fall on the use of the word responsibility i hope not and then again  right before the long footnote they say for sure there's no magic to the words discretion or authority but we're not in hogwarts therefore should be clear unless plan documents unambiguous you please the court i reserve a few minutes if the court has questions for me i'll answer them otherwise i'll submit