insurers of any judicial remedy in state or federal court for an illicit plan participants admittedly who each of contract in mcdowell one the district court decided the question that was left open last term by the united states supreme court and the great west versus conducing decision the district court held that plaintiff's state law claim commenced in state court seeking money damages for breach of contract was completely preempted by arista a magistrate judge in his own words said that either providence has a remedy under the risk that or providence has no remedy at all to seek specific performance a classic equitable remedy that is designed to cure a breach of contract when the legal remedy is inadequate taken together these cases achieve a result that is not dictated by the provisions of risk and is in fact at all odds with the fundamental purposes of that act and neither is the result here compelled or even vaguely suggested by any decision of the supreme court or by this court now it's all i want to ask you about  about a pending supreme court matter and get your thoughts on whether it's likely enough to make a difference that we should wait for that decision one month  not familiar i haven't looked at the briefs in that case i was only aware that they had taken interest to case i don't think it's going to have an impact on this case because it involves a claim brought by a plan participant as i understand it and the rights of plan participants are covered under a separate section of  translate to this situation or at least give us some additional hands and if that could well be i long ago gave up attempting to predict what the supreme court might have to say on any given issue and  suspect that what we will discover is that there are there may be something in that opinion in way that the court analyzes of the chad some like on the issues that are presented here  honor then after that this missile the district court in the action on the recession related it doesn't fall with the enforcement provisions right it wasn't a recession action it was a super specific performance sort of a specific question yes now let's go back to step one but if you would have prevailed in step one we wouldn't have to worry about step two and yes and in fact i believe that's the correct result in this case i think  one should be reversed and remanded to tell through for a second and let's talk about the first action without one if in fact all it was was a breach of contract action between the plan and purchase and the people that held the policy not about the plan itself and if we find that the district court was wrong in dismissing that then we could reverse that and that's the end of the case right yes and as i said happened when we reversed all we're correct except that if you conclude that the trial court the only basis for four subject matter jurisdiction in this case is if the court concludes that there is complete korean action that we so if we reverse and it goes back t reasons that any one of which would lead to a reversal we went to harvard each of contract claim does not relate to the plan which is a term of art and because if the claim doesn't relate to the plan isn't within the field that is preempted we win if our breach of contract claim is authorized by a state law regulating insurance because even though there is a preemption there is a savings cost for laws regulating insurance and finally we win if our breach of contract claim is not within the scope of the remedy provisions of the us a statute if our claims not within the scope of the remedy provisions of a ressa then according to this court it is course part of decision the district court had no subject matter jurisdiction and the motion to remain and should have been granted for that reason is if your best legal authority and i'd like to start with the third point which is that the planet's claims not within the scope of the remedies provided by arista not necessarily because it's my best but it's the easiest point to understand it really boils down to a legal  civil enforcement scheme ever go there's no subject matter jurisdiction now the the district court and the mcdowell's here say well if it is within the scope of the and you know it's debatable whether i guess it's not debatable here but but it could be argued that the minority in great west got it right and all of these cases should be in federal court but under great west  clearly that is not the direction that the supreme court was giving thanks specifically left open the question of whether we have a legal remedy in state court now let me toss mcdowell's also say with regard to this point that really the provider providence in this case is in no different position than a member or a beneficiary because it received by its nature restricts the nature of remedies that are available but there's a critical distinction between our position and the position that i plan member is in it's true that a planned member may have limited remedies for example they're not entitled to seek united damages but they are given a remedy the difference here is that under great west we are not given a remedy in a recession and that makes all the difference in the world what you have here given the result in the two district court opinions is a situation where there are two parties to a contract only one of whom is allowed to have access to any court in the country in order to enforce the contract can i stop you there just a second then there's a risk the plan the plan provides certain benefits for the participants in this benefits in this case the benefit was receiving and insurance policy that's correct which is a separate time track that's correct it's a product of the plan but it's but it's only a step fracture you're saying we have contractual rights that are separate from the plan and then draw a case holdings and what the plan provides doesn't provide a breach of contract between these two parties that your best case that's my best case and that's why it would be the second thing that i would turn to that's why this claim does not relate to the plan as this court in the supreme court has interpreted that term what the court will i get back to remedies you don't have a remedy if for some reason you look at a risk that you know as as with this quote and the supreme court said you're supposed to try to apply the preemption in a way that is consistent with the purposes of it aristos purpose is to regulate not the substance of the benefits  provided but the manner in which those benefits are administered planet ministration is the heart and soul of a recess and as you point out the plan can decide to provide a certain way of benefits th doesn't regulate what goes into a plan's benefit structure and they can do it either by self insuring or by purchasing insurance but it's across a very clear line between that which it regulate ministration and that which it doesn't which is the business of insurance the business of insurance at least since the anakin of the mccarran ferguson act has always been uniquely a matter of state regulation and a list of preserves that unique area of state regulation by creating a savings clause so even if you were to conclude i think incorrectly gives the regulation of insurance in this case it's a pretty good foundation it's a contract action between sure and the insur so the state doesn't have to get involved to to regulate that dispute you know just i would agree that that you don't have to find that there is insurance regulation in order for us to prevail because we they don't get over the initial threshold of bringing us within the field of preemption however if you were for to conclude if you adopt the council's argument that relate to means everything's is directly regulated by the state insurance code and the state insurance co specifically allows the contract to include a reimbursement provision such as the one that we're dealing with here the supreme court has held that  state statute that precludes insurance contracts from including a and indemnity provision is not preempted because of the insurance savings clause it has to follow a force your in the state making the contrary policy choice and saying we're going to permit reimbursement also has to be not preempted and i think at that point it seems to me that writing the policy in other words carrier takes the policy to the church commissioners say we want this  approved this provision and we're talking about there's a difference between that is regulation and insurance and saying that the state is regulating insurance when there becomes a dispute as to the application of that provision that's not regulated insurance that's already been well i would your honor i think that the question is whether the particular claim is arises under an insurance regulation our position is that the fact that the contract was reviewed and approved by the insurance commissioner brings the contract within the insurance regulation moreover in this particular case there's a specific statute that expressly authorizes that provision but i i believe as i think you can get in in response to judge for nettie's question that you're not going to get to the insurance savings because that's not your equitable remedies are allowed well if your theories are correct no equitable remedies and allowed either congress apparently in its wisdom has decided for whatever reason that you cannot that the insurance companies are not allowed to go to court and impose personal liability judgments and insurance others but my point remains the same regardless of which provision you're looking at it seems to me that that if you're right congress has given carte watched for for one time not to live up to its agreements and nobody can do anything about it well that's not necessarily the case they continue to say that they can't do anything about it certainly they have the right to subrogate they could have gone after they could have undertaken to the provisions of the policy well and they knew that it worked both ways if they take the benefits they take the obligation but i actually don't agree with that as a matter of state law i don't think a third party beneficiary can be obligated and affirmatively to do something which is not a condition preceding it here but i want to go back to the point that i'm raising this court on four different occasions in cement masons owens and  other case has already held on these facts under these circumstances but the insurance company can't get reimbursement there may be other means that they can do that by as a court in great west set one of which would have been for them to win to hire their own lawyer and seek to recover from the third party but if they have a right to reimbursement it's got to be under th under arrest and they don't and i think eliot reaffirms that and i would like to read if i could what eliot referred to the rushed case and rejected interest now forced my position has been in terms of the in terms of the reliance by the insurance company or a seven forty two five thirty four five thirty six five thirty eight but that was never raised below and it should and it was not preserved on appeal but the point here still is that in the event of a conflict whatever it's whether to state common law claim for breach of contract or under a statute arista governs the only way that the fiduciary can make can bring an action against a participant which is one of the relationships governed as the light circuit it said what you have movement is a relationship governed by a risk so that if they have a right to recover it is only under arrest and four other panels of this court reimbursement but there's a four course again though you have recently decided in august and have to go back and review those facts also tie into the fact that the contract between the insured and insurer provided for the reimbursement i believe that they did your honor of because that's sort of key here i've been surprised by the supreme court on so little higher risk that this isn't because when they wanted a shift gears but i haven't seen i'll just have to check those facts because they're obviously different panics but but the fact of the matter either i believe in those particular cases if not all four at least in one or more the good choice company brought an action to see green burst meant just as they've done here for breach of contract for which of the plan focusing on my mind is a little scattered this morning of trying to remember those cases but when i'm focusing on is the narrow issue if the is first time comes out of the risk the plan has a specific provision where the insured and uninsured have certain responsibility this case the insured having reimbursed on these recoveries and i understand your argument if you have massive preemption and we're not going to i'm just wondering if that now having said that your honor there are number of cases that we've cited in our briefs where in fact and the cases on both sides some are some are by fiduciaries against plan participants some are plan once against for this years but i don't think it makes a difference because what this court has said and i believe is what is understood from the supreme court is that the question is is the relationship one governed by a risk and clearly a fiduciary like providence and our clients are the relationship governed by risk that means it's completely preempted it comes in a response now there again i would like to emphasize that there were other remedies available perhaps to these dislike rate when i said that they could have gone after someone else but they can't go after us no matter what their contracts and these other cases that we've cited from the circuit so whole it's just not enforceable they don't have a right to i don't know i don't know it sounds like again there are clear claims by plan progress when it's for this year i think the principles apply in terms of the relationships the same so it could very well but i don't know whether it's going to come out in this particular instance to be this they say anything i would like to go back to great west though and say in terms of the gap that council says exists i don't think it does and in response to judge for an area i want to make sure that he understands that in great west as well as mason case and others remember that great west was suing to enforce a provision in the policy for reimbursement they were suing to enforce that they right to bring a legal claim a claim of law for the benefit but the fiduciary does not have a right to bring a claim that law for money damages against the participant there's no entitled to money damages he wants state really should get involved in the original lost but you got involved and there was a lawsuit they should go after the third party i think they could have filed a lien supposedly i mean that this was not preserved on a certainly they could intervene they could always intervene and there is a looming right five thirty six appears to give them a right they could have a sort of a lien against the person is against the other insurance company but they cannot go after my clients were illegal money judgment and if that's if that's i'm not here to apologize for congress if they want to change that they need to go to congress to do full time job thank and it's for us thank you very much i think i have about three quick points first of all counsel said that this court has previously decided this question in cement masons and  owns case this court said if you want to have ever breached contract action you've got to go to state court in great west the majority said this we're not deciding whether there is a state claim and of the  t certainly assumed that the net result of the court's decision was to send us to state court secondly counsel said that in answer to judge labour's question that the insurance the member for premiums pursuant to eleven thirty two seven a sub one he's wrong on that as well eleven thirty two sub a sub one provides remedies only for participants and beneficiaries other permission from premiums no there is not council says it's not true that there is an inadequate remedy they could t go into court and sue the third party tortfeasor several comments about that first of all that's not a remedy against the party who breach the contract to reimburse secondly that's not what the court said in judge goldberg said in this case judge  we had no remedy and he said that because that's what the council told him the result should be and if you think about it our ability to summer get depends upon our ability to assert our contract right action i don't think your honor that we can subrogate if we don't have the right to assert a claim against the third party and in any case the contract clause that we're talking about is not a summer geishas clause it's a reimbursement clause fairly what would happen if i but that congress did not give us a remedy in a recess and they took away any state remedies that we had first time or another with were running for the first time when the unique situation your hon i know that this is a question of first impression in the circuit at least at the circuit level and i believe that these are questions of first impression i don't know i'm not aware of any reported decision in any circuit that addresses this particular question that i think implied in your opponent's argument was that you don't really need this right that you're seeking here because the insurance contract itself gives you the right of subrogation and the right to require  beneficiaries to put the money and trust that they get from review or that they recover from in the bad guy so you don't need this all you have to use is your contract remedy and the insurance policy but when you have we have may have multiple remedies under the insurance policy but that's sort of the side the point as to whether we have a remedy to with respect to our right to reimbursement counsel by the way are you argue with those one of the suspects that in other words you can't recover in this action these people get a windfall and i can see the validity of that argument except that you could have been there before and it wouldn't be a windfall you'd already have your money but as judge brunetti pointed out had we been there we give you and trust when you recover from that you are actually the facts in this case what you have to take from the complaint was standing council's desire to dispute that also alleges that the plaintiffs and their attorneys signed a trust agreement  before the recovery in this case and then refused to honor it as well and so you know i think that on the complaint which you must take those facts as true the insurer in this case did everything that they could possibly do to protect their interest and were left without a remedy because that's what judge toler said the result should be and i want to point out judge jones didn't say that's what congress intended in fact if you look at the transcript of oral argument judge coker said he better year salary that congress didn't intend that but he said congress made a mistake it's ironic it seems to me in the context preemption to say congress made a mistake and took away a remedy when i can cite you fifty cases dealing with preemption where the courts have said we do not lightly presume that congress intended to take away the power of the states to regulate traditional areas of the are subject to state regulation if that's what the court concluded happened in this case tha