insurance that was paid for the person insured sadly passed away in january two thousand and fourteen met life refused to pay the claim their justification is that evidence of insurability was not provided to them they accepted premiums the employer thought that two hundred fifty thousand dollars of life insurance had been purchased that was the amount that was charged in premiums and indeed one of the claims people at metlife stated after reviewing the file it sure seems like this person thought they had two hundred fifty thousand dollars insurance they paid for it they that's the amount that they should receive metlife ultimately decided not to pay the claim they paid a minimal amount thirty thousand dollars so there's two hundred twenty thousand dollars an issue and this issue has not been decided by the ninth circuit there is a district court case gains which i've cited extensively which the issue in print frame and the way you think that the issue is not been the issue that not been decided is is can an insurance company under arrest accept premiums for a certain level of coverage and then after some period of time after that if there's a insured would be led to believe well i'm not i thought it's under in the or is it required some sort of affirmative misrepresentation so the misrepresentation here is the deduction of the premium amou just think it's important to be clear that there may have been one there was an affirmative in the misrepresentation it didn't come directly from the answer and the question is is it attributable to the insurer yes those are two separate here the procedure seemed quite clear the employer was designated by metlife as the one to tell the insurance how much coverage they had and in their paycheck it sets out dependent life insurance was a separate line item it suggests what the procedure was supposed to be well we know that from what they say is that you can't i mean i think this help she doesn't hurt you but the point is that it does say that only met life can approve hospital i don't i wouldn't say it was explicitly administered by the hospital because metlife did collect the premiums they did issue the coverage i would say they were  you know there's nothing about that in the record there's statements in briefs but there's nothing there's no proof or evidence of that statement in their electronic files that children fifty thousand dollars of coverage had been purchased and paid for and that presumably was transmitted to the claims department once a claim came out it's just supposition because there's of off the wall so why should they be treated as one of you because they were both together fulfilling all the functions as the plan administer administrator other i mean it seems to me there was a nother bigger problem here which was that the plan says that she can't get more insurance for her husband she just for herself and she never got sure in fifty thousand or five hundred thousand dollars a twenty yes and five hundred thousand dollars was issued and incidentally paid for and you know what it was for vulture for one i believe it was for both she paid for the show fifty i thought the record was and she went back to the twenty now so so in in the fall of that same year in two thousand and thirteen the elections were made for the calendar year of two thousand and fourteen that document has not been produced by metlife all we have are the result of that document that are in  thirteen fall signed up was that an initial sign up because she had just begun working there she is that was not the initial start of the initial sign it was august fifth of two thousand and thirteen so that's what i mean that was that that was the initial sign of the one where they screwed up the five hundred thousand dress and that was when they first purchased this coverage although she had been working there previously and she filled out a form that did have age that sort of thing and it says in that form this is the august two thousand and thirteen form it says that evidence of insurability may be required that's on the form that is on the four they already yes yes  says several different things and points it says may other points it says we must sell off if it does definitely say must in several places it says may and others and it says nothing in other places now there  is the sort of sub issue here that that plan was never provided to the insured prior to the claim but in any event it does say in the in the sign up sheet that was a complete august of two thousand and thirteen it does say evidence of insura may be required and the gains in silver case both say that puts the burden then on met life to ensure that that information is requested from the insured because they might think well i filled out the age of the person and i prove that they were my spouse and i have now satisfy the elements required for insurability under this plan i think that's that's exactly what occurred here there's no evidence that gary walked the deceit and would have qualified this coverage if he had filled out a form that i can only imagine what the questions are again that leads to want to do we have any idea what that form what it did over there is over that and there's no form in the record i've never seen it personally letter discovery for a question we asked for all the documents relating to the claim and that form was not produced by metlife they had the opportunity to produce it and did not do so and the in possibility that creates is what is the insured supposed to provide are they supposed to provide blood pressure or are they it just it creates a situation where the insured is put into the position of becoming a underwriter for a life insurance company s that they're not qualified to do they wouldn't know what the important questions are i think if this form had been sent to the insured and the insurer had failed to fill it out that would be a totally different case but here nothing was nothing in the summary plan description or in the claim follow or the essentially nonexistent underwriting file that explains how that procedure is supposed to occur though it let me give you that the original when you said the critical issue are you uncomfortable with the same issue i understand there's a supreme court case that says that california a certain rule in california is preempted but there has to be federal agency law that underpins arista because everybody operates completely that in this instance the facts of this case are clear that providence is acting as metlife agent there they're taking premiums that they are then submitting to met life that's  an act of an agent they're collecting who is insured under the plan and who isn't and how much and that all seems something like an agent you know there's just somebody has to be doing it exactly so  if lesser is a district court case judge lou came up with a few years ago when you and that case met life are good but we've compartmentalize all this with all these different entities and and third party administrators so we can't be responsible for anything and the court rejected that saying well you can't accept premiums and then say well there's some other entity involved here so i'm off the hook and i don't have any responsibility they have the responsibility if they want this information those benefits unless very specific requirements are satisfied and she has not done so here so that's one thing in the district court's findings of fact are reviewed for clear error and the court made several significant like that who called that who call seem to be applicable and i write about that so far but she had reduced attempted to reduce the mistake and that is that she was not dealing with a situation where she first covered her her husband later than the first opportunity she first covered have the first opportunity as i understand it that's right so therefore this paragraph i just read you doesn't apply because that only applied when you're trying to add somebody later and then you catch a page one thirty nine and you can't you have to have a coverage of hundred fifty without evidence insurability parentheses stating that hell evidence of insurability is required for any mess the only time as far as i can tell that it says that all of the coverages it's required for some so it may be required in certain circumstances it may be required when someone seeks more than fifty thousand dollars of dependent life excuse me it must be required in a situation where a claim six more than fifty thousand dollars in coverage it must be required in certain circumstances when an individual attempts to increase it above a certain amount council mentioned the kid circuit's decision in sylva the court there was looking at a completely different plan there was no evidence of insurability mention next the statement of health the statement of health wording was absent in the civil plan that's in fact what the civil court said it would have needed to see in order to find that there was no ambiguity in the planet met life funded funds the plan right metlife is setting the requirement and individually approving them unlike everything else where it's not making individual decisions just individually approving this is that right when a claimant who is required to submit evidence of sometimes i mean i don't understand how this is not being done on behalf of metropolitan life as a condition of coverage by metropolitan life because because providence has the plan sponsor and executives of providence he would accept anything i'm sorry anything labeled a statement of health we would accept anything as it is a statement of health if providence has the plan sponsor started submitting handwritten forms that said statement of health on top and this was something that i wanted out and i am healthy and gave much metlife tha way i'm not complaining i appreciate that your honor met met life has been issuing policies like the one you described for a long long time almost one hundred fifty years it's a very reputable and for as is required for every metropolitan life is rely on  evidence of insurability statement of health was submitted here so we wouldn't be in the administrative record and below the plaintiff didn't request but agency question when the outside the ministry franconian with think would be litigated i mean there is it's your view that there is absolutely no agency relationship here whatsoever yes that that is my that is my view of so then how does this whole system work well so your honor in war the the supreme court was very clear about why it given the person the statement of health and then providing a to metlife how can they not be so providence didn't have to set up its plan this way but it did and providence is not named in this lawsuit the district court there was no it was just told a set of providence decided that the statement of health was i am healthy that meant that my one tank that's what's not under providence no no your honor met life could have been the record keeper of this plan but it is not the record keeper of this plan providence we sponsored it just doesn't really make any you know it this is this is providence has planned providence could have elected not to have a statement of health requirement that would have been it's obviously very very premium well i mean that would have been a again metlife will approve a statement of health form if it meets certain guide us but i'm not suggesting that providence was tied to met life here providence had the ability to decide how it was going to set up it plan for its employees and this is how the company set up its benefit plan i understand your honour's concern about the agency issue but the supreme court said in ward that law i understand and there has to be an agency and arrest or there has to be there isn't your honor the statute there is not there and this is the statute is very clear about what the roles and responsibilities are for various plans for do sherry's and the regulations are clear as well so is the plan administrator and plan sponsor they have certain obligations and responsibilities a claims for do sherry or claim administrator like met life was in this case also has certain responsibilities  if a claim administrator like met life is granted discretionary authority it's done so by the plan administrator if you were to find that that an agency law type of arrangement applies here you would be interfering with those very specific roles and functions that the statute has set forth and that's why it's i understand your concern but it's not a part of that's actually saying that if any plan is delegated the responsibility to collect a form and send it to metlife will approve it that it's not at that that that is not an agency relationship with met mine well i don't think statutes speak in the negative like that your honor but it doesn't say anywhere that the plan administrator is the agent of a claim administrator or an insurance company that you can see that it automatically is but it can be depending on what the role this is specifically what it's doing this the statute doesn't say that the planning minister is the age of the claim administrator when there's a gap like it's not necessarily the agent of the claim and then a stranger it depends what your doing your honor at the statute doesn't say that there is an agency relationship so you would have to look to incorporate state here but i am also saying that agency law is not currently part of the federal common law under arrest and for you to do so you would have to look to state law in order to do it the supreme court says it would interfere with plan administration granted it was a preemption the hospital is operating independently yes and that life is over here operating independently yes but under this plan this particular provision of the plan which calls for statement of health your position is is that the hospital had an independent sort of obligation under their own plan to collect this form i'm saying that forwarded on to met life is that it is the claimants obligation to submit those forms the statements of health to about life it is providence's responsibility as a district court found in one of its findings of fact that it would ensure that those who needed to submit evidence of insurability statements of health did so it did not happen in this case because of that upfront keystroke error that was made when ms saleyards who was requesting twenty thousand dollars independent life insurance accidently received a five hundred thousand dollars and under your theory that even though there is must be some contractual relationship between met life and the hospital correct there's a group policy of insurance it's a contract yes and there's no eight there is no kind of agency relationship under that contract not of no none whatsoever and that contract is not in the record that is correct your honor and if it let's suppose hypothetically that it's said when that's not a record i mean maybe what we need to do is remain for fact finding an agency question because if it said for example when requested by metlife province well collect these later the statement of health and send it to met life then why i'm yesterday the last thing that i soon so there's no discretionary authority granted to metlife in this case because discretionary clauses are banned under state law in california and so that this this court  you think there's such a law in california that's what you can't do that i am saying that california has a state law that bans discretionary clauses right and i think the the supreme court in glen did not did not hold that fill out this citation for us if not then send us that first argument letter you are to to address counsel's last point that is one point in which we are in agreement there is a california statute in the insurance code  i can't remember the number i think it's ten  it it's because it's a law that regulates the business of insurance so for non self funded plans it prohibits discretionary clauses that cases not come up to this court yet the district court has  several cases on it i see but it's not really that i thought it's not yeah that's that's part of the problem on the one hand metlife wants providence to have all the responsibility but it also wants to hold this while we make the final decision on well we have whatever we need and we think he has two hundred fifty thousand dollars in coverage that that's what providence said met life says well we have we have the final discretion to make that decision on insurability  but because of this agency relationship they're relying apparently although there's no record to prove this they're relying upon the employer to gather this information using  have i'm not sure is the answer i think they are obligated under the disclosures in the district court to provide all the information related not just the claim but the plain summary plan description and any other documents consulted or that should have been consulted by any of the claims people in administering the claim i think that's something that they should have just produced as part of the contract between mt life and that is customarily produced it was not produced here  now interestingly in this summary plan description unlike many there is no statement that the employer is not the agent of the insurance company that is a clause you frequently do see in these plans it's not present here and that goes importantly to that ultra moral which has now been abandoned by ward which said regardless of what's in the plan the employer is the agent of the it's company so now it's to a case by case basis are they acting as an agent using federal common law and i think the answer is clear here that they are acting as the agent the insurance company at least for the the point about collecting premiums and collecting information about insureds they're the ones that gather all the forms and they're supposed to transmit them to metlife who maintains this final arbiter of whether someone is insurable or not and because they do that and they rely on another entity to collect that information for them i would say that they're clearly acting a providence who is clearly acting as the agent of life in the village provided for results in payment of benefit i think that when an insured has not been asked any information is being charged premiums there's creates an impossibility of that insured to rectify the situation this could have gone on for years and the insurer would have never been the wiser now finally one last point if i may be allowed on the silver case that's the eighth circuit case the only other circuit court that dealt with this issue that planned that life plan also required sometimes and said may other times evidence of insurability so i would say francis you didn't have the francis the  statement if it did not i would say functionally there in terms of what they require both of the witcher money one thing that your client could have for have should have done and you say i never appl for five hundred thousand dollars why you charging for she did she called met life and asked them why i'd rather have two hundred fifty thousand dollars in coverage and or the employer i've forgotten who she contacted but it was never the person that she contacted was the person she was supposed to contact under those circumstances and that's why in the fall of two thousand and thirteen when she made the election she chose two hundred fifty thousand dollars pretty soon after th