morning or you could be better apologize for what happened but it happened ok i'd like to reserve three minutes i can do  this case is governed by oregon law that's clear from the policy and it's clear from the statements of the parties first i want to note that aura seven forty three four twenty nine defines proof of loss and proof of the loss must be furnished to an insurer at its office in case of a claim for loss of which the process provides any periodic payment contingent upon continuing loss within ninety days after such a loss and that was not in the policy that defendants offered but should had also organ takes a very pragmatic and functional approach to the definition of proof of loss parks v farmers the case that does that and pages thirty five through thirty seven in our opening brief goes through that mutual of omaha paid miss raynor until december two thousand and ten and  of omaha gave miss raynor until june fourth two thousand and eleven to appeal to submit material to support a claim which is essentially a proof of loss three years would run from june two thousand and fourteen i mean that's proof of loss there's no difference in the type of information being provided they just didn't find what we submitted originally enough so they asked us again for more information and more more information and the statute says it runs from when proof of loss is requested there is the letters that they sent ten seventeen two thousand and eleven it a year fifty one fifty seven requested more record more information or records from school make or by december twenty fourth two thousand and eleven february eighth two thousand and twelve he are one fifty one fifty that's one fifty seven and then one fifty six there was more quest for more information from dr lu by february twenty two two thousand statute policy would you like to make that argument yes the organ statute really is pretty clear and it says proof of loss must be furnished to ensure for any contingent payment so it applies oregon takes a pragmatic and functional approach which is important and it has to be liberally construed told december two thousand and ten what i'm interested in particular is the language that and some forty three point four two nine says after the terminations of the period for which the insured is liable so my question is what is the period for which the insured is liable and when does that terminations take place there are a variety of ways to interpret that i'm sure your honour's aware of that you can interpret it from each month ninety days or you can look at the period being the entire period for which the insurer would be liable if it was found that the person was disabled and there's a fair my case from other jurisdiction correct and that he was to say that the insured for which the the court given us any interpretation on that point i believe there is a case on that maybe there is one well actually there isn't there's kansas louisiana number of other states have done it in oregon is silent on that would it be worth certifying to the oregon supreme court this question but but under that analysis we don't know whether she still disabled or correct while that is was that's a question of fact that remains there was no finding there's been no finding other than the earlier insurance company filing right well social security found or disable not unable to do anything in the national economy which is a stricter definition then what of omaha has in their policy so one could argue that she has been found that by least another trib by you know it's not but you are asking me whether there was any finding there and that's the finding that exists michel volman off course is deny the claim is there any concern or should there be a concern that when you have the proof of loss it is related to the period of disability as oregon law seems to suggest that you never really have finality if the person continues to be disabled and you'd ever have this finality for an insurer who decides that someone is not disabled under their policy that's the decision that the oregon state made with respect to these types of claims so please the court my name is michael riley representing the defendant we're asking that the court affirm the decision from below i'd like to probably given the limited time focus on a couple of issues because i think the court has asked two questions that maybe i should focus on the first is aren't there a lot of other cases out there that have made this proof of last statement so long and continuing till even death perhaps and there are those  that's the basis of these decisions that you say are wrong well i may or may not be there i'm going to would agree with them but the language in the oregon model policy the one that shows up in the statute is what same language that's being interpreted in these other jurisdictions well i'll give you an example the minnesota case laidlaw in one nine hundred seventy seven that case the court actually held yet also have to prove prejudice the organ keep organ cases are not going that far in fact in the  case they asked the court whether prejudice have to be proved herman said and that court said no we don't think prejudice should be have to be proved here and then they've explained why it said and i think the court has raised this already in the earlier discussion without such a limitation provision and then sure could not accurately forecast its future liabilities set aside proper reserves or close even ancient files that's the herman case although the answer to that that was given in the delaware case is that it's going to be a very unusual situation where someone else has a long term disability insurance claims to be disabled doesn't make a claim you know i'm  program doesn't were growing accrual rather and that's because it would give i never in series of causes of action that rolling was different from what's being proposed here and we haven't those other cases of those other cases also integrate it was wrong statute is just not applicable well i think this is i thought that was your argument it isn't arguing what the statute means which i was surprised that you went right to that i like hook but you're right no i think you're exactly right we think i actually if you look at their briefing they did not argue that statute they do cite the statute but nowhere do you see in their brief when you look at them and their rule i understand if your view is the statute is not applicable because they've been superseded by the policy why you arguing why are you going to give this whole colloquy about what it means i'm going to take every direction from the court and say i'm going to go with my best argument  that is i think the policy that was here confuse me was approved i think i think it was approved your honor and that's what the record is in fact we we cited specifically to our the record in ninety eight ninety nine where we submitted the declaration which showed that the policy that was it issue here was approved by working and we know that approval by the insurance commissioner means that oregon law that might actually forbid it  consequence of such approval does that insulate any policy and from future challenges inconsistent with oregon law i don't know your honor i owe it seven forty two or to one or to one says that you if it's think the policy has isn't the proof of loss was appropriate i think the statute says that the policy must be not less favorable in any respect to the insured that's the language that is the language that's correct and i'm not sure i was comparing the two and i'm not sure i can come up with an argument that the policy is the same or perhaps more generous to an insurer and it seems pretty clear it's the other way around isn't it well if you look at the proof of last definition and we think the proof of last definition is very strong they actually devote a whole section to it making it very clear and when you see it says and this is the record it to seventy eight it says we're going to send you this form it's a as opposed to the statute that the proof of us isn't is defined i actually think this policy is very very good it's not in the definition section it's in it's own whole section and this is why i think a judge late was right because there was a form it says we you should request a form we will send you a form and then if you don't get that form within fifteen days it actually says specifically what is the information you should provide us but there's no dispute here they got the form within the fifteen days and then says you should send the form within ninety days after the elimination period so that's pretty exact now but that's what your policy says that's right and the question is whether or not that is less or more favorable from what the statute provides and if the statute provides as these other courts have concluded your district judge talking about well the because i think coming back to judge kozinski comment he also accepted the fact that under the statute and the evidence was undisputed this policy had been approved by oregon and so if there is no fact there that disputes it they didn't dispute it either this is all a new issue that's before this court i just want to turn briefly to my last point which is why did they ask so remember now they paid him for two years and then they're looking to see whether he should get any game full employment and the biggest deal here is it's not really continuing payments at that point if he doesn't submit this information his pay should stop on june thirtieth ten so in february they sent a whole bunch of information all these forms were a medical release form that's that record it to six and updated training work experience for a doctor supplementary report a physical capacities checklist form health questionnaire form authors comes back to what that policy set is for the proof of loss now for this next period where you should get pay i you're going to have to fill out this information so we do think that the information was very clear and that judge lane correctly ruled that by june three of two thousand and ten that's when the proof of loss information needed to be there to make the assessment now of whether he gets continued benefits but isn't there a problem though because you know you're going through the appeal process and you are asking the insured for more information and more information and then all of a sudden your three year period is gone and you lose your right to file a lawsuit to challenge the decision is not a concern to responses  first it wasn't required information and that's the keyword that's in there was it required it wasn't the appeal wasn't required and even the letter that he just referenced if you look at record at one fifty six here's what it says it says you can provide us more information we'd like to see more information if we don't get more information within fourteen days we're going to proceed with the appeal there's nothing that says anything there was required but they were trying to give them an opportunity to provide more comment and more and additional data that we might be useful in the appeal but it certainly was not required i see two questions as to which i'm not  sure what oregon law is number one is and you've made it's seen as a perfectly plausible argument that if the insurance commissioner approves the policy that's the end of it  on the other hand the second question is if that's not the end of it that is to say the jurors commissioner's approval of the policy nonetheless leaves the policy open for challenge of us not whatever is a double negative less favorable to whether or not the oregon statute is more favorable than your policy would you object or certifying those two questions to the oregon supreme court i don't think it's needed for this record your honor and frankly i don't think this record is developed well enough to happen if the june fourth two thousand and eleven denial letter that gives one hundred eighty one hundred eighty days after that denial letter you have february twenty second to twelve the last deadline omaha gave rainer for providing additional documentation of the claims cost and april third ninety days after terminations of the first monthly benefit that was denied even using april third two thousand and eleven at three years we're still good because we f it in march and those are the three choices i think that exist under the existing law the other thing i want to say in the limited time i have left is oregon has strong protections for consumers insurance consumers and they have it statutorily and they say that there should be liberal construction of their rules and regulations to protect the insurance public and they have strong reasons for that judge layton ruled on the argument relative to the oregon law i mean i think he just found that it wouldn't make a difference in this case even if he did graft the organ provision into the insurance policy you made the argument ninety days after the time to bring your to submit your claim and it's unclear and it is an open question whether it's the whole liability period or whether it's the the shorter period but the statute runs from either of the three dates that i set out according to we're going to law thank you thank you