good morning good morning your honor jason kaufman along with my colleague david glass we represent the appellant miss melinda webb may it please the court the district court should be reversed for improperly applying a limitation clause in the a recipe the relevant language of the limitation provides that legal action may not be commenced either sixty day until sixty days have passed after the proof of claim or more than one year after the proof of claim is required that's the exact precise language in the policy now that term required is critical because if you look over to proof of claim you find that proof of claim is required no later than thirty days from the date of loss or in no event later than one year from the time proof of claim is otherwise required the way in which we interpreted the limitation process was one year passed either thirty days or one year past the one year more lenient time for submitting the proof of loss as being required the defendant however interprets it differently and they do so by not using the term required but using the term submitted or filed and they do so because there is no question in this case that miss webb did in fact submit the proof of lost within the thirty day so by their reckoning she had a year from the time that she submitted it or the time that she filed it that's not what the language says and that's critical because their interpretation cuts a limitation period by almost a year the parties do not dispute that if our interpretation is correct we're timely if their interpretation is correct or not timely the reason that our interpretation is correct is because it relies precisely precisely on the language it doesn't flip in terms filed or submitted was required it sticks with required the entire time your honors they argued a misinterpretation not only of the relevant policy but they misinterpreted a federal court that looked at this precise language and that would be the harrison versus liberty assurance company which you'll find at two thousand westlaw two eleven eighty nine fifty four to northern district of florida case from may twenty seventh two thousand and eleven the litigant in that case urged to interpretation of the same so there's no limitation period they urge the second interpretation that i've just given to your court a moment ago the district court said the first interpretation would essentially eliminate the limitation so i'm going to reject that interpretation is not unreasonable the second one is reasonable i think that's a a little more lenient but it's reasonable you get two years the problem is your five years so the court said even under your interpretation it's not reasonable that case is significant your honor because it demonstrates that a federal judge in florida had the same interpretation as did wait that it was two years and thirty days if you read the precise language of the policy the difference between harrison and us is where within the two years and that's not disputed your honor your r s are well versed in the fact that  insurance policies should be construed against ensuring the extent there it made us we think our interpretation based on the precise language by keeping required the same throughout and not interchanging the words filed and submitted that will well within and we have the proper interpretation to the extent that the other interpretation is the proper when ours is not unreasonable therefore the policy is ambiguous if it's ambiguous and should be construed in our favor and we were timely there is one other issue in this case that demonstrates why their interpretation of the policy limitation period is patently unreasonable and i'm a talk about that briefly as i get to the other issue which i did not raise on appeal we did not b period here is patently unreasonable to the facts of the case the claim was not on or around january twenty seventh of two thousand and fourteen we appealed the appeal was denied on june twenty third two thousand fourteen but importantly in the in the alleged denial the language rates further review will be conducted by liberty now we took liberty at its word and we submitted additional materials on around may fifth of two thousand and fifteen what took so long your honor i racked my brain for the last week and i is i recall to the best of my build your honor we were trying as best we could to get the coroner to tell us how she reached the conclusion your honor a in risk of fiduciary as they suggest is not allowed to just rely upon authorities they've got to do a fair and impartial review that coroner's report and if you read the accurate case in the burnett case i'm going to go into the active case in detail because i believe he's going to raise it they talk in that case yeah it says assad shot self but it doesn't say how she came or he came to that conclusion the same thing with this corner we were trying to catch up with her it took us a great deal of time to speak to her and try to figure out what she had used and in determining what she did it's not part of the record your honor i don't feel comfortable but your honor what is part of the record is her report merely concludes suicide without providing any rationale and as we pointed out in our may fifth two thousand and fifteen letter which did we submitted the c d c manual we pointed out that there was no suicide note we talked to friends and family that said that this gentleman was not suicidal had never had any suicide attempts that he had a young daughter was two years old a new marriage and he was looking for the future he had a job where he made almost four hundred thousand dollars a year he had recently purchased a yearlong subscription to the georgia aquarium all this is in the record now that may seem insignificant but if you read the c d c guidelines people that commit suicide they don't make long term plans they also don't do things like shoot themselves thirty days before the exclusion is going to wave away they wait thirty days they also take steps again this is all in the record it's in the manual they take steps to make sure you're not recess aetate it they don't shoot themselves in the kitchen where you're going to hear it they go down to the basement where you won't hear to the can't be resuscitated if you go by that c d c manual and the other materials that we submitted on may fifth two thousand and fifteen you see that there is no evidence at all that he intended to commit suicide and if there is not we should have been provided those benefits but that the typo in the letter that they claims a typo we don't think it's a typo in the information that we submitted not only demonstrates the information a couple weeks later say oh thank you for pointing out the typo they never consider that information never they admit that they do not claim they wrongfully not before here's why that is significant that is significant because they  suggesting that we should have filed well before we got the final notice from them on may fifteenth that there's just been a typo we're sorry that we said we conduct more review and you went out and did all this work  well your honor we would presumably under our interpretation we would go back for judge to ask for him to reach the issue of was the death suicide or not and we believe that's right they think but honestly if if if you lose on that  you had only a year and thirty days then they only way you can prevail on this appeal is if there is a fact finding that  good morning my name is andrea cattleya and i'm here with sanders carter on behalf of liberty life assurance company of boston plaintiff or appellant has just argued that the district court misinterpreted both the contractual limitations provision and the proof  claim provision in the policy he claims that in reading those provisions together a party and either submit their proof within thirty days for a year and thirty days after the date of loss but that is not what these provisions stay the policy states that proof must be provided no later than thirty days from the date of loss unless it's not reasonably possible to do so in which case you have an additional year in this case it was reasonably possible for mrs webb to submit the proof within thirty days because she did submit the proof within thirty days do you agree that if the limit if the administrative process was incomplete at the time limitations period in the policy expired that it would be unreasonable to apply the limitation would you repeat it was if the administrative process was in fact incomplete i would i would relate with that that is not the denied in june twenty fifteen she had seven months left within which she could have filed suit but she did not instead of course she says she didn't because you told her your sort of view on the c that is correct and as judge anderson pointed out they would have to prove that their reliance on the omission of that word in the letter was reasonable and it  but i mean the district court never made that decision yes so we're not going to make that decision and i don't think for the first time on appeal ok well  true she said that we really need a reminder to assuming you went on the first point about the year in thirty days we would still have to remain and in order to determine it probably would be on reasonable to have the statute of limitation run before the review were completed the bottom line is she had a deadline of january twenty fifth to file suit that is when her contractual limitations period ran she did not come forward with this additional evidence or make this argument that she had misunderstood the letter or reasonably relied on the letter intel four months after she contends she was entitled to submit proof and four months after we contend she was entitled to file a lawsuit but you've told us i think that if the administrative process you know was incomplete then it was reasonable for her to wait for for that process to be completed but i wasn't but it was an incomplete under the terms of the policy and under wrist she had one year and thirty days expired in january of two thousand and fifteen and so she had exhausted her administrative remedies she simply came back four months after limitations had expired and submitted additional evidence at no time in the interim did she contact liberty and say am i reading this letter correctly are you still investigating she didn't say i'm contacting coroner to find something out which is nowhere in the end that works the other way to i mean did you ever contact her and say you know in that letter we told you we're conducting further review we didn't mean that we meant to say not conducting any further if you did you are caught no we did not contact her because it was in fact a typo and elsewhere in that letter it also says your appeals process has been exhausted you have the right to receive all relevant documents you have a right to bring a civil action under she says you know the letter said it both ways to the letter is internally inconsistent and the one we're talking about the g twenty third twenty fourteen letter it's internally inconsistent right the letter does say further review will be conducted but when you read the letter in its entirety it fact being conducted that yesterday that's the only way you can prevail on that point in this go it goes oh was it be a question of fact that well that is correct and they had said in the letter we're closing our fire and we regret that we don't have a more favorable decision for you and please call if you have any questions so no no we don't believe any reasonable person would have relied on that and to the extent that is what she believed or question we believe she should have picked up the phone she was in fact represented by counsel at the time this letter was  i guess i will move forward from there too so of course it's our conclusion that the summary judgment must be upheld based on the contractual limitations provision but even if it is not this court has the right and can affirm a summary judgment on any ground and in this case the summary judgment motion included another ground and that was that the suicide was i'm sorry that the death was a result of suicide and not an accident and that that decision was not arbitrary and capricious and would in the district court did no finding of fact on that he did not and i mean you don't think we're going to do that now as a court of appeals do you i think that you have the authority to do  that and the reason why i think you might do that is because in our mind it is such a straightforward case that the question here is whether it was an accident or a suicide and the evidence that was before liberty at the time it made it's a michelle initial claim decision all pointed to the direction that it was a suicide  three days after his death so if they say i mean they say numero each thirty days away from this provision expiring a year membership in the aquarium there's all of all of that evidence was the evidence that they said mid four months after they were entitled to file suit and four months after under their theory they were entitled to submit proof all of that evidence is that was submitted then the evidence say all the evidence points in one direction i'm just saying they're there there's evidence they say that points in the other direction that's never been evaluated b a fact finder right because they submitted it after the administrative remedy had been exhausted so at the time of the initial claims decision what they had was a phone call from the employer saying this is a possible suicide a telephone call from the liberty representative to the appellant herself in which the appellant herself confirmed that her husband had committed suicide and a death certificate in which the coroner who is a public official charged with investigating and determining both the cars and the manner of death concluded that the death was a suicide that's all they had when they made their initial decision of course they found it was a suicide then she appealed on appeal she submitted five additional pieces of evidence four of them were reports from the sheriff's office who also investigated this incident the main investigative report the conclusion was reached just as it was in a court in the coroner's report that this death was the result of a suicide we have a supplemental incident report from officer bro in which he states the appellant told the nine one one dispatcher he just did this he did this on purpose we have the in supplemental incident report from officer chambers in which officer chambers describes the conversation with that he had with the appellant immediately after the death in which she just scribes the events of that evening she explains we were drinking that evening my husband got a phone call from his husband he became very upset his ball i'm sorry his his his father his says his father her husband became very upset she had never seen him change his demeanor so quickly he started talking about incidents from his youth that she had never heard about he drank more and more he went and retrieved the gun from the locked safe she tried to wrestle it away from him she begged with him to think about her his relationship with their daughter their relationship and he went down the stairs and he shot himself this was how she described the incident to the officer on the night of his death and that is the information that liberty had all of those reports the only evidence that they had before administrative remedies were exhausted to the contrary was an affidavit from the appellant in which she recant three of her statements to officer chambers she said well he didn't i don't know if i said this he also said i'm going to end it all she said well he didn't really say that and she recants a few other things that she said to him but at the end of the day she didn't recant the statement she made to the liberty claims investigator she didn't recant the statement she made to the nine one one dispatcher it's very clear that this is just self serving this is something that was written after her claim has been denied after she's retained a lawyer she also include statements in there to the effect that  you know she didn't believe he meant to commit suicide at cetera but her subjective beliefs constitute no probative evidence and liberty was perfectly within its right to give less credence to that evidence when faced with the overwhelming evidence that it was in fact a suicide and to the point even though nobody can consider this evidence that came in after the administrative remedies were exhausted even if the court could consider that evidence and even if it shows he had dreams and plans for the future that doesn't take away from his state of mind that night when this happened something happened that night he spiraled out of control and took his own life unless a court has any other questions thank you thank you honor may it please the court she talks about no one being able to consider this evidence i would point the court to the acar case where the district court there exercised his discretion which both sides agree judge thrasher if you were to remand him has the discretion to send it back for a full and fair review which would then allow us to even supplement the record further but clearly it would allow them to consider the evidence that was submitted without may fifth two thousand and fifteen letter that letter was approximately ninety pages it was four think  court quote interests minister cannot rule out unproven assumptions that are contradicted by the record no matter how strongly believes those assumptions to be melinda webb did say something she never said suicide she said he did this to himself she said he did this on purpose that's what the officers record now this was not at the time of his death this was while he was in the kitchen bleeding to death these interviews that night now later when she had time to calm down and think about what was said she did recant those things at that time your honor and this is undisputedly in the record because this was submitted before the type of letter this is in the record her affidavit was the only sworn statement t police saw the authorities they never got to see that affidavit recanting those things she talked about him being upstairs or her being up stairs originally she later would change that version of events but here's the critical point and we make this in the brief to extent we cover it in the reply the issue that they raised for the first time nobody saw this nobody knows what happened here nobody and what our point is is that the authorities based upon some things that she said she did this to himself maybe she meant like my mother you did this to yourself jason you got an f on that test because you didn't study and she doesn't mean that i intended to go get an f she meant you engaged in behavior that led to that well who knows what was going on who knows he'd been drinking he had a  firearm what is more believable than a middle aged person making forty thousand dollars a year making all the plans for the future and a great life decides after a fight with his wife in a bad phone call this dad assuming all that's true the kill him self or he went down to the kitchen and he was an exasperated state waving the gun around and it went off so united states of america is a lot of farms a lot of firearm deaths nobody knows what happened if no one knows what happened to their burden to prove that it's their burden they can't prove it instead what they did does the record show where the bullet  went and where the bullet wound you out of the autopsy report which which is which is in the record demonstrates that it was a shot to the head that's all we know there was no examination and again i may be leaning to have only one act they point out in there that just as an actor he has and here the corner doesn't say how she concluded suicide she just says we don't i don't think there's any dispute that the gun went off the question is did he intend to do it it was an accident  and we believe that we can demonstrate again if that issue is reached we don't think it should be at this juncture that we can prove that it wasn't a suicide your honour's applause quickly if you look at page eight of their brief the entire the entire language thirty days or know of any year by my reckoning that's two years and thirty days you get to choose i don't think they can come in later go well in fact you were able to do it so you can take advantage of that year we might not have been able to take advantage of the year to submit claim that may be true that's not what this says the language is required please hold them to the required do not let them interchange file been submitted and we believe you're going to be a major judge crashed unless you have any questions for me your honor as i would you thank you appreciate the