good afternoon mister dean or judge good afternoon your honour's my name is jim o'brien and i here on behalf of state her foster and jelly auster in the month of may of two thousand and sixte the state takes the position and i believe that pelleas will also agree that the policy has made no provision for refund of premiums paid no contractual provision to that effect the policy has no provisions for terminating premiums paid on behalf of a disabled employee berk foster was not actively working as an employee a life insurance premium payments were made for you wary march april and may so it seemed like one version of your theory was that american marine had actually taken on either a discretionary obligation or maybe an obligation that was in the contract to pay his premium because he with disabled is that one of your to say that american marines intentions were at the time of making payments in oral argument below it was my understanding from american marine that there was discussion of three payments being made and an uncertainty as to the basis behind ford's payment in may of two thousand and sixteen we take the position that because curtis was not kirk was not actively working after february two thousand and sixteen all four payments had to be made because her was a disabled employee so is there contract language that premiums so still one theory would be that they paid his premiums through the time that he still had the vacation and sick leave what what led him to believe that if he did believe that they would continue past the end of the vacation and leave well there it comes down to how the court perceives these monthly payments we take the position that there is no authority under the policy for american marine to make payments because her was and actively working for the company so that ends the inquiry over paying payments i'm behalf of her because he was an actively working which leaves the only other option which is these payments had to be made because he was disabled and even united would agree that a end of february they were making payments to curry for his status as a disabled boy well i think you had you describe that one point of discretion having discretion to make the payments are you saying now that they didn't have discretion to make no no there's just no provision on american marines discretion except to be able to tell the court that it could not have been on the basis of active working court about any kind of communication between american marine and her with respect to his status as a disabled employee and with respect to premiums being paid per op because he was a disabled like another version of your theory might be that he thought they had made them a payment but then didn't know it had been refunded but it sounds like he wouldn't have known they even made them a payment is that another thing that is correct i do premiums had been paid what is the plan language and made him think his insurance would continue if he himself didn't make the payments oh yeah i don't think that's the case i think what happened here is that this is one of the areas where we think the lower court might have missed on the arguments that were being presented to it we believe that the current simply wasn't being informed and there is you've seen these  arguments about whether or not he actually received some kind of notice of conversion and that was never tied to by the judge below i was never tied to any kind of trigger device other than to say generally  which is where judge christensen where generally speaking if we tell you about of the version order we don't have to specifically tell you when you better exercise that thirty one day effort which then comes back to all of they probably has that and that interpretation the best reading of the plan language would have been that he had the rd pay within thirty one dollars days of february right yes so if he never knew that the company what was paying in february march and april then why wouldn't he have started paying in march if he wanted to continue because it was not the least and looking at those text messages that was never an issue he did he i think was part of the argument below he understood that his status with the company besides being actively employed wasn't going to change you have no reason to think that there was going to be a change based on being laid off ad and sort of as an under underscoring our very problem there is that subset of argument that showed that we disputed whether he had actual knowledge she was ever terminated and while there was the april th two thousand and sixteen letter there was also an i'm saying he wasn't informed of his termination so as to be able to give them to empower him to trigger his right to convert the policy well what did he think had happened in february he thought he was laid off i that's not the way i understand that term and that is that a term the way it's used in this industry i do not have a term specific industry but i don't believe it is i think that it is fairly common knowledge that with the cold good that's happening a number of people who are receiving unemployment have been told they've been laid off but don't necessarily conclude they'll never come back to a job but in the meantime they don't have a job right to be an individual policy after term and after he was terminated from american marine you're on  the sound didn't come across on your answer before you said you're wrong i'm sorry no he did not receive that information your honor at any time after he was informed he was laid off on february st and it's my understanding from the arguments follow that both american marine and united would claim that when he received the plan in february february nd which does contain policy provisions on conversion and portability no and pointed out that he had  exercise any right to fight and that christians and below believe that that was sufficient notice of right of conversion and portability when he received it on august there because i didn't understand claim three to be as narrow as your characterization so it seems like claim three is a little bit vaguely worded but could it be encompassing a notice obligation that you are no longer going to pay th does that benefit after april or that perhaps also just an obligation to continue to pay the benefits because he was disabled i think both of those arguments are his opening brief in some form and also arguably could be part of claim three dollars so obvious option that we might consider not this not being waived could you address why you didn't have an obligation to notify him that you were don't know he had a couple of the summary plan description which fully informed him of what would happen when his replacement was terminated and instructed him that after their day he would have thirty one evidence if there is any indicates that mister osterman was told that his employment terminated at the end of well you know under the new april th i don't see anything here that says that he knew that other than just that  i mean a characterization an arrangement was made that his last day would be that but i didn't say we told him or any kind of specific description of that statement well american marine as a matter of undisputed evidence that that mister foster was aware of that is employment terminated on people fifteen of two thousand and sixteen there's an additional piece of evidence that hasn't been mentioned and by the way to blow the very thick layer of dust off of the mailbox rule which is what would have been required to really like if you need to rely on that we would have to send it back to the district court to resolve the dispute about whether you received it or whether the mailbox rule of the not right you didn't argue anything not out of the mailbox filled out that so we can't rule for you on that no although it gives it is in the record and that argument is that events actually buy american dream because it wasn't information that was within our possession it wouldn't really matter whether you would argue with that in your brief but that's if we decided to have farms maybe you could cover your points as to why you think that they have this knowledge well you know of course united of omaha being the wasn't part into those kinds of communications with mister foster directly so other than what american marina's established you know we don't have anything  not received within five working days from the date your billing statements produce the changes will appear on your subsequent billing statement and so the idea is the aggregate peen premium due for the month was paid by american marine but always with the understanding that it would be credited back for that premium on the next bill when the bill for june was issued on may th of two thousand and sixteen it's undisputed that credit was made that that kind of nothing would have to rise under a risk or arguably under some kind of non preempt state law that regulated insurance but there is no such law that requires an insurer to make those kinds of communications and then for a host of reasons including that this arises under an employee benefit plan those kinds of communications between the employee eat coverage come from the employer or you know the united long term disability claim what's the significance of the fact that it's a long term disability claim so mister sure mister foster had also asked him i believe february  when he could no longer work submitted a claim under a different policy for long term disability coverage and that claim was paid so i think if my my interest that is the employer saying yes so at any rate you know it was undisputed that the facts that i'm describing are sentient undisputed and i think this foster's argument now is based on how characterize these premium payments and credits that were that is what the district court concluded as well that there was no premium paid for mister foster from a two thousand and sixteen because by the time the bill was paid was already understood he was terminated from coverage based on american restructure and it was  understood that united would credit that back in a couple of weeks which it did on a may th two thousand and sixteen bill so therefore there was no premium even accepted by united for mister foster for the month of may th that's the district court's conclusion and we would respectfully submit that that conclusion should be affirmed by this court that is that if there's been any attempt to mediate this case i understand that the  circuit mediation office did make an attempt and i'm not privy to the reasons but pretty quickly concluded that it could be that was before the research file correct counts further to judge who wins in korea about mediation so i understand how off at the outset of a case the parties have one view but some there would be any value to our submitting this to mediation again with the ender stanley the that would be totally a voluntary question for all the circuit media there which if any of the parties didn't want to maybe so i mean it's totally voluntary and no knowledge will come to us supply all we hear from a mediator is either the parties are going to proceed to mediate or the bunnies are not so you've got to back my question is this would be a waste of time or would it be something that all three of you might have some interest and i realize that i mean one of the parties here might view this as a case where for house or reasons of the client individually it's an all or nothing kind of proposition and mediations off the table but it's also possible that that you'd be interested in that so that's my question on the spot to say whether they'd be interested because of the panel decides to have a mediator contact the parties then you can express your view to them in confidence time left i think you and i i won't take too much time of the court i can tell you that i would disagree with mister beaver there were four months in which premiums were paid after february st and i think that there's been some confusion in the district court because there may be an effort and that those premiums were paid because somehow because he was receiving sick leave and vacation pay that he was actively working which is not the quality provision so there's a language in the policy that specifically excludes when you're not working one hundred and twenty turned off yes twice in april doesn't that suggest isn't it a reason and friend that that man that he knew he was no longer working for the company no because in contact with the company he said i'm still your i think there are text messages to this effect your honor but he believed he was helping the people who were coming behind him to people who taking over the job he held prior to becoming ill and he was trying to train those people out of alaska long distance as to what was important in his role as they human resources person and so he thought for the sake of it whatever i don't want to get into his stuff he was using his time to make sure that quality people followed in the job that he knew he had with respect to these payments i believe below the dock judge christianson man confused by not recognizing the difference between premiums even use the word payroll and that's something i'm not for guilty or with in this case far as i know mister foster was not being paid he was cashing an employee benefit on vacation and sick  so i but but it's easy to get confused that perhaps his actively working status might have covered when he was not in fact working one hundred and twenty hours a week which is why we  the notification that went to united in that record that is a fact that when only two united her never got a copy of this facts that disabled employee for you know we and do we have to believe he just never was terminated he was still an employee under the layoff didn't mean he was there may be a deeper dive in the idea that there is some independent authority under the policy for american marine to terminate a disabled employee who is only receiving disability benefits i'm not trying to die too deeply into the rationale behind germination but i can't go beyond telling you that there yes i don't know why you would terminate a disabled employee yes there is yes we have we have to believe he never really was terminated to agree with you i think that's right and i can wrap this up with the estate is requesting a reversal of the district court order with a direct to order payment of one hundred and fifty thousand dollars in insurance life insurance benefits pre judgment interest and attorney's fees and we think that that is best directed toward united and in the event united does not pay if we do that it's entirely of a question that's found terry for parties to consider if they want to do it without further ado i say stacey please kno