based on a statute of limitations of dismissal of interest acclaim there are some salient documents that i'd like to briefly review with the court  michael fashion on was a bank collections telephone hibernia bank he sustained on the job injury in two thousand and six he only had one on and he severely injured the other arm and was rendered totally disabled his benefits for long term disability were approved by son life in two thousand and seven and the policy that sun life had provided that he had to challenge his benefit in title meant what they had calculated as his monthly benefit within three years of the proof of laws which the district court found to be march of two thousand and ten and granting the summary judgment initially there was an exception which will be six motion and the court converted to a summary judgment the letter that the court relied on initially it was there was a letter in the record march thirty first two thousand and eight where the monthly benefit was calculated there was some dispute as to whether or not the claimant actually received it i don't think that's outcome dispositive at the time the letter was sent the letter said this is what we're doing right now and we're waiting on additional information this is what we're going to pay you based on the information that we currently have they did not include in the march thirty first two thousand letter any information about  appeal rights problem to rights or exhaustion of administrative remedies so the climate was receiving one hundred dollars a month because he was getting worker's comp and so security disability so that situation continued and there were there's a map exhibit in the excerpts record excerpts that discusses his frustration in dealing with the various claims people at sun life over the sequential period of time but bought april of two thousand and eleven he received a second letter and the second letter said that sunlight had finally received information from the employer hibernia bank had gone out of business capital one had taken over the business so it took some period of time sunlight says for them to get information from the employer that they were seeking about salary continuation and about an upgrade from fifty percent of his base pay to two thirds of his base pay now that letter in april of two thousand and eleven did not mention exhaustion of administrative remedies it did say that they were willing to consider additional information and it didn't it did mention his father to write in april of two thousand and eleven now if you would accept what the district  held that he had to fall within three years of the proven loss it would have already been to lay despite the fact that there's an internal review an internal audit it would have already been too late for him to challenge his monthly benefit sr court said as a matter of law borrowing from the second and third circuit that in a recent miscalculation a claim accrued when it's clear and known what the monthly amount is yes or ok and so he says in that one footnote twenty eight he says that happened in two thousand and eight and it definitely has clear knowledge of the calculation that's when the clock starts theory or a not till twenty seven when the peel exhaustion occurs which was your legal or you accept the clear repudiation of my legal argument is that it was not clear factual i do believe there was also a continuing ryle lation but it was not clear factually until twenty seventeen when he received the letter when he hired counsel counsel sent the paperwork it was reviewed additional changes were made in his benefits based on the settlement of the worker's compensation claim and in twenty seventeen they're owed him and said look this is the final denial you've exhausted all administrative remedies you have a right to go take this action the civil court but i also disagree with the legal precept your honor that the three years from the proof are nastasya formal denial it isn't the clock doesn't start when the individual should have known because it was clear what the calculation is has to be a formal denial that's your position or am i trying to put you in a box that you don't want to be and it is it is my position but it's not my only position relative to the applicable statue limitations ok all right so  i do believe sir that the it wasn't denied in a sufficiently legal fashion until twenty seventeen so that his right to file suit was still available to him under five o two a stepping back circuit the heat i don't myself see circuit authority for that but i think you would say the ninth circuit with roe decision would suggest there has to be a final formal denial or do you have another circuit that says that i do not like i do not so if the majority of circuits all say that the clock starts when it is clear and should have been if that majority circuit is the appropriate you still safe actually it wasn't clear i said if actually it wasn't clear but even if even if i give you that even if i give you that by two thousand and eight he knew or should have reasonably per judge africa's ruling my argument would be that the analogous statue of limitations for the state louisiana under civil court article three four nine nine is a ten year statue of limitations for personal actions and i would argue that if you look at the and you are you just a judge after we strenuously argued to ten years to actual imitations in our opposition at the district court and if you look at the piece case cited by this court as well as in the piece case your honor the court looked at the analogous state statute of limitations and challenge it until eight or nine years later and the court applied the ten year wheezy and a statue of limitations to that and i think i know that the dissent five judge owens also applied the texas statute of limitations the four year statute of limitations in a situation where that court found that the claim wasn't covered recess but in a lengthy dissent she described her position that it was covered by a recess but that the case should have been dismissed for the the claim being too late based on the texas statue of limitations so both of those cases apply the analogous to actual limitations of state law so even if we accept your jaffer it's premises that that i don't accept factually that two thousand and eight was the right day i say the claim was timely filed contractual provision is reasonable it's in forcible and in that case the connecticut such limitations was one year and based on that satchel limitations the court decided that it was reasonable to enforce a three year provision in the contract i would argue that the three year provision in this contract can prove a loss was not reasonable because they continued the internal audit forces substantial periods of time subsequent to that march two thousand and ten period adjusting his benefits multiple times later i thought that was all related to that where the by implant had to do with the percentages but it did take doesn't show he he ever misunderstood the monthly amount it doesn't but you know we were we weren't really given an opportunity this this started on a exception of twelve b six we never had a day in court as it were relative to the fact that he was under psychiatric care at the time he had a myriad of medical problems we never really had an opportunity to argue equitable a scalpel or other things that could have interrupted the period in the policy itself but failing all of that we don't accept that the louisiana statute should not apply  reasonable so your particular clients your per your client's particular problems might have made three years on reasonable here in a might have been reasonable to somebody else or do you see it more as just whether that time period in or bring a client that is not reasonable to him as regards to whether it's generally reason iran or not we were never really given the opportunity to to flesh out his medical situation and we did we did document in the dimapur record that he expressed considerable frustration with trying to understand his interaction with the person at sun light so i'm not it would be clear reasonable as to the individual claimant as opposed to just a reasonable time period in the generic way for all claimants in that state i think i think you could argue it either way based on the verbiage in the opinion i read it as if it's reasonable it's likely enforceable but we would be willing to consider exceptions based on the facts of the individual case and that at the very end of the opinion justice thomas points out that whether executive will stop will or other situations that there are i didn't see it as a hard and fast rule  he question thank you those contractually defined benefits that employers promise to ploy these but says the employer has any obligation to provide any benefits in the first place that congress said had to be balanced against promoting the formation of benefits plans in the first place and encouraging employers to do so and congress did that by promulgating both an administrative and judicial scheme that is supposed to be predictable efficient and cost effective and there number different tenants that go into that in hi michelle off of course the court characterized a linchpin of that system that that balancing act as enforcing the talked about that are also part of this case which include the requirement to claimants be reasonable reasonably diligent about protecting their own rights of course statue imitation is by their very nature also implicate that interest as do you know court procedural laws about raising arguments in a timely manner as such this is a case where the claimant has failed to exercise reasonable diligence at every single level of the administrative and judicial process along the way now up to two issues that concern me one is what is if we don't have a physical law that controls us what is the appropriate a cool point when i look at the law it seems like it could be when a pensioner claims there's a miscalculation it could be a continuing violation every time you give me less that's of separate injury it could be no it's the first payment you had to catch it at the beginning it could be when the pensioner should have known it seems to be where most courts are gravitating or it could be only when there is a formal denial that's right it's the accrual of course is only relevant in this context in terms of comparing the contractual intentions period with when you were able to sue in determining whether whether that's our that's to the whole of principle but yes so the written legal principle that that be here you say he had every opportunity but throughout his can challenge in the percentage thing and it is a complex formula i'm just this is devil's advocate because somehow he's only getting one hundred dollars a month but what was his monthly earning fifteen thousand  muslims there's no confusion about so ever about the fact that many thought you know he got a bonus after january and that wasn't included in the ensign life said you're right about that i'm just i'm i don't want to disturb the law that protects pensioners that just sort of trust their employer they are ok they're giving me what i probably was owed and and it is complex and they are constantly complaining which he was so there is a body of law it's the steel circuit case kick kick buffy kick f the member that also carry even the ninth circuit with withrow so i guess i'm just pushing you one why wasn't this sort of complex for a older lay person with a lot of disabilities and he just didn't clearly know well i mean i think again the very flexible one that is certainly amenable to a case by case analysis so i mean it does it does go to when you reasonably should know that what you're saying what you're claiming is not the way that the company calculated it and hear what he's saying what he's saying is he's clearly saying here in the last year my monthly earnings were eight thousand dollars a month the documents he received in the conversation sunlight clearly stated that they calculated it as five thousand dollars from two thousand and eight from two thousand and eleven all the way through that's right again and it as of two thousand and eleven it would have actually changed his benefit t term benefit his monthly benefit if if he was right because the the various assets had come off and now if he was right about one thousand he would be getting twelve hundred dollars a month not the hundred so even you know a cruel one when it when it's geared towards in a reasonably should know can certainly take place before it affects the benefit and boast of both cases in both of those cases we were talking about in the in the piece case it was an annuity he was going to get the other point about the rule of law and which one you should adopt your honor is that that is contrary the notion that it should be a it's final denial in this context what that means is there is no limitation you essentially create your own limitation piller circuits adopted that no circuit has adopted because it makes no sense particularly in the arista context of the ironic you're taking the position that i that's the right day to start well your honor i mean you of course if you do start there it doesn't have it but would write about how to analyze what we have before right but but i think that's that would be erroneous for the reason that you can look at what he's arguing what he's arguing resolve or you stay consistent story in two thousand and eight on one of them so you're saying the calendar day one is already started on that argument could never change or give a number to you do change two years later three your calendar starts then is that how you see this working as opposed to an overall set of objections to what the plan now is being interpreted and finally when all those objections are resolved you start to count i see it as a holy war because if  you go to the latter you are you are down the road of the of that of that problem of being able to create your own limitations put out but you just have one set of benefits i mean it changes and these other cases are clear about what you what what you're comparing things to your need to analyze what the argument is in court and then when he should have know that otherwise you've got a very difficult problems in trying to figure out what the statute accrues and when that and what the period when the period is luckily here your honor it doesn't matter because again by two thousand and eleven you know he he knew exactly what song that was calculating and that would have affected his his benefit but i think you go down the debt dangerous road if you start to think about accrual in the sense of you know when it effects your in your your benefit versus what's my argument in court and what when did i know that that aldrete was repudiated i think miller makes that clear i think it's much more dicey if you try to to analyze it in that in that other way one question is how can we resolve the two thousand and eight date on summary judgment if he submitted a sworn letter that he didn't get that so i just automatically create an issue of fact this twenty two thousand and eight or not i did does not your honor i think i think judge africa analyzed that exactly right as well i mean receipt of the letter can be established through circumstantial circumstantial evidence and can be buddies and he found that it was and that that at the affidavit just doesn't automatically create a genuine issue of material fact and in the face of an affidavit of falling reasonable procedurals procedures at some life to send a to send the letter out thousand and exactly right i mean an end in may of two thousand and eight the notes say they talked about the total mostly earnings and we explained how we calculated and he agreed so again there were there were subs just a couple of quick points i think the notion that they change his benefits in april of two thousand and eleven is confirmation of the fact that it would not be reasonable to force the we're going to look at that is the date we're going to enforce it he wouldn't even have been typed in title to get his percentage raised because that happened a year and a half later that they got information from the employer to raise his percentage much less talk about his bonus if you accept that there were three year period from the proof a loss he would have been entitled to even have any of the other documents that sun life was asking him any employer for he would have been able to present those from employer doesn't have to assert the limitations and you know this is a different things happen at different points in time and i guess in a fit land but in that what he did not to speak for many many years the five thousand something and he didn't that gets back to when he knew or recently should have known right but the basic monthly benefit and so my argument relative to that is is very simple and it's twofold one counsel would suggest to the court that based on the deep map there is an alleged phone conversation with mr fashion where they say he understood that's an issue of fact dispute that he spoke with him on many occasions about his benefits that was not addressed particularly you're correct that was not addressed particularly that he denied that he had agreed that he know what percentage they told him they were paying him and he disputed that right yes but he could have put the math he could have taken what percentage looked at what he's getting and see what that july number one he would from time to time ask about it well he only had to have do the math every month when he gets the check in that right that's correct so he he could have figured out easily what what they thought his monthly earnings benchmark was my last comment is if the real standard according to the court is when did he know or should have known that's a subject of inquiry and it's an issue of friends and i don't think the case was ripe for summary judgment i think we should have had an opportunity to present what he knew when he knew it and what he did about it