form was never forwarded to the lock insurance company in fact the first the first that guardian ever heard of mr moore was whenever he passed away and the plan of made a claim for a life there's a lot of case law out there with respect to improper processing of klein's but there's very little with respect to an employer failing to forward an enrollment form for a plan protest minute at all the closest there is that this circuit has had the opportunity to address a set forth and wilson the zoner case and the fact that case are a little bit different than we have here in that the the defendant ends owner was an insurance agent an agent for the life insurance plan itsel submitted nabel cation for basic life insurance coverage but similarly here he failed to forward that location for supplemental lock insurance for salary this court found based on a seven factor analysis of four embrace that it was not the state law because of that excuse me cause of action were not preempted by recess the defendant's argument were there defendant is the plan it minister but i think it's significant that there was never actually any coverage in place of that council you said that before and i didn't challenge you i thought that all full time employees were covered for the basic right correct that was that was the policy but like i said guardian had never even heard of mr moore until after the fact and you know arguably with no obligation to do the contractual obligation to pay basic benefits to every employee i may be mistaken i think the word or two i said was my work in the defendant's brief in volunteer and i think was that that may be the case and have really are that it bertone case that is side in the brief addresses this specific scenario and they do it kind of on three fold logic they apply to different tests from other  they also decided that the plaintiff was not a participant or beneficiary because they were never enroll in any coverage but they draw they draw a distinguishment based on what a little of an employee is thousand you're suing for one hundred sixty thousand well the that's why this is that this is a suit for plan benefits and and we don't need to get into the multi factor test like well a lot of the a lot of the cases off the top of my head i'm not  simply result in a judgment against her former husband's employer the district court in that case they had already filed in state court it was  cases prior to the state law found that there was no risk coverage kick them out and they follow the state law cause of action it's kind of an interesting procedural history but i'm based on the logic set forth in the county case i think there's a distinction to be drawn essentially the employer here played the same role as the insurance agent and in the wilson case there jolly the plan administrator in this case the employer  factually the defendant played the exact same role as the insurance giant it would have their job would have been to iraq to afford the enrollment form to enroll the plaintiffs like husband without well if if she is required to go forward under a risk our claim is likely under the breach of it for this year a duty section of the statute and i don't believe that this which would make equitable remedies available to our dear that's clear well i think the statute reads provides appropriate equitable relief and i'm not so sure that she's not that she's limited to  there may or may not have been some other steps they had would have had to go through to get the supplemental life into your claim under state law why it why is that any more crystal clear and slam dunk well i think the negligence the negligence is pretty straightforward that herb the problem story a couple of stop applying i mean they were she was represented to have that coverage in place and little did she know there was no coverage in place at all whereas well i believe there's some proof of some additional proof of coverage and whatnot that she would have been required to submit for the or he would have been required to submit for the additional life insurance coverage in excess of just the basics so she may have the claim under a one maybe pretty questionable and go on to the bridge officiated he climbed it's i don't think this court has yet don't get into the multi factor test under an expressed preemption question because this is a complete preemption case that the district court found in finding that federal jurisdiction existed after removal plaintiff's complaint allege suing for planned benefits under state law understand that yes i think that i think your distinction that you're distinction to weave out the between it completely and expresses is foreign to me ok i don't think the supreme says everything related to everything you don't have to do that if someone comes in and files a state law cause of action for planned benefit and that's how we see the case we see this as a as a cause of action for pla benefits but even if if i'm wrong on that i still think we get the preemption question is answered in the affirmative because this was also a three case under under the fiduciary duty for the breach of the due sherry duty claim that this court recognized in two thousand and fourteen in the still the case plaintiff's complaint alleges that apple central was acting as a fiduciary when it withheld the premiums from the paycheck but allegedly failed to turn those premiums over to guardian for interpretation of plan rights and the third is the breach of fiduciary duty claim that this court's twenty fourteen decision in silver vs met life analyzed in view of the supreme court's recent decision in cigna corporation vs america this court explained that the statute provides three possible applicable theories of recovery under eleven thirty two eighty three she's not sure that she has a remedy under eleven thirty two a three under the analysis and still the she would have a potential claim for surcharge which would potentially make her whole if she can prove  factual allegation that a surcharge to the plan or an individual liability of the administrator but it depends on who would be wrong but the planet menace trader is the defendant here and i don't know it would depend on the relationship between the planted a straight or the claims administrator on the insurance policy something that we haven't gotten to yet in the district court you you just heard your plan you just hurt your position with me ok if that is if it isn't clear that the liability would be personal on this set of facts i think you are the employer then then i then i risk of preemption troubles me as is a bad bad result therefore that policy therefore questionable interpretation of the statute i think it i think it would be a liability i mean the defendant is the plan administrator in the case i think that's true this this court would find responsible in a judgment of the case that i mention has very similar facts to to the facts here and i know plaintiff relies on the florida state court case for similar facts but i think we need to look at the silver decision where we had a situation with an  employee died the employees father applied to receive assigns life insurance benefits that were part of a risk employment plan the insurer was also defended in that case as they were the one who provide benefits and they did the insurer denied the claim asserting that the correct paperwork could not been turned in even though the employer had been withholding previous from the paychecks and setting those to the insurance company so the plaintiff there the father su both the employer who as here was the planet straighter and the the insurance company the district court denied relief the district court found the plaintiff could not make a claim for benefits under eleven thirty to a one because he was not properly because the the deceased was not properly and rolled in the coverage this court reversed holding that are at risk to claim for equitable relief under eleven thirty two a three certainly exist in the focus of the court so the focus should be on the on the equitable remedies that exist under eleven thirty two eight three those include surcharge reformation and stop all this court relied on the american supreme court decision that said equity courts possess the power to provide the relief in the form of monetary compensation for a loss resulting from a trustees breach of duty or to prevent the trustees unjust enrichment council does that prove too much more because that sounds like a right to payment for the time you're done describing it and that right is in a one but i think either way whether we view it as they want to or a three i think we get we get preemption i think the plaintiff could pursue that opinion when i went ahead and analyzed other potential theories that exist under eleven thirty two a three upon potential reformation claim of the policy and a potential stoppel claim and i think plaintiff has all those arguments here so said in this morning that it's undisputed that she was not enroll in the in the supplemental life insurance policy you know that the district court didn't go down this path of whether or not a plaintiff it actually received some supplemental insurance benefits we there's no question that she received the baby that the plaintiff received the basic life insurance coverage that it was a payment of ninety three thousand dollars previous breath was oh my gosh it's punitive damages or it is not different standards of conduct really is that the facts are pretty clear and yes they may not be clear as to as to what you were talking about whether mr moore did there was no there was no there was no claims administrator exercising discretion there there was a claim made to guardian guardian went through the process as a designated damages i mean is there really a universe in which the negligent failure to obtain insurance coverage would provide punitive damages as a breach of a fiduciary duty under arkansas law i mean that would that would shock me beyond words right because you know the breach of the due sherry duty can give rise to punitive damages but it's sort of it just would be unfathomable to me that there's me that it is part of the state law case as part of the state law claims my time is about up in most of the court has any additional questions i appreciate the court's time today thank you thank you on page twenty nine of the pill it's great goals coast plastic surgery from the eastern district of louisiana and pretty much gives that same quote plaintiffs use a difference in policy limits as a measure of damages designed related to their actual right to benefits under the plan fail to submit the enrollment form that there may not be any recovery against guardian at the end of the day if they're if they come back and say to it is to guard i know you've been in the amended complaint and i'm not surprised out of caution but if you if you get your way guardians not a defendant you have state law claims against against the employer yes i'm saying if you know we proceed under as plan administrator that would have that would have made him eligible for benefits i don't know if that's a good a one claim but you know you don't need guardian as a codefendant pursue that and that's the point i don't know that this this set of facts affects relations between the arista entities this is just as in the bertone case it's a judgment against our former employers or former husband's employer in that in that capacity and that ok and then with the with respect to the silver silver case as to the exact exact remedies available under a three clime i think in the very last paragraph the court said that it may provide certain remedies and i don't think it's necessarily clear exactly what measure of damages would be a viable under equitable claim for relief