we regard as a more minor issue and one of them a much broader substantive nature and technical issue goes to whether mr cathy and i go with the charge of the burden of knowing whether he was covered by a continuity of coverage provision in his plan policy with harford the broader issue i think is what's he charged with that knowledge and hard for in fact now that it had a duty to investigate whether he had that potential for coverage due to information that he brought to hartford's attention his internal appeal of the denial of benefits redirect your attention a little bit away from the issues of a purported duty to investigate and find his knowledge as to whether he thought he was covered i think the real issue was was he covered well i think i think the real issue is  progeny well i don't think you're going to find principles of federal law that say let's skip the contract and decide whether somebody is entitled to think he's reasonably covered was he covered start with that question why was he covered by this plan well he was and i look and i find a definition of prior plan that you choose not to discuss so what do i make about definition well i think that the definition of prior plan was not included and the intent was to say that the definition of prior this isn't the world's largest contrast so some point i think going to have to deal with the definition of prior plans for it unless you're willing to concede that if you do use the definition of prior plan under the policy your client's not covered i  where it says prior plan means the long term disability insurance carried by the employer capitol on the day before the by an effective date capitols he if that definition is applied here is your client lose no your honor he wins because there is really no difference in employer a fact that was overlooked by harker in this case it's really the same company there was some sort of consolidation in his declaration and i can probably point to that fact that it was not charged with the representation of mange by the value of your imagine that specifically in affirmatively it short mr cathy and that he would not be treated as a new hire and he would be treated as an existing employees because essentially it is the same company and it is the same division and therefore she was told by harford that the continuity of provision wo continuity of coverage provision would apply and the preexisting condition bar would be waived now are free argues that it's not charged with doing anything in that situation and that arguably would correct it's hard for has no knowledge of that representation but the for the administrative record closed which is the body of evidence that a court can generally consider even under an abuse of discretion april of two thousand and one well i agree reiner but i don't think that has to i think this is an ongoing continuous process where and still are heard says that's it we're not you know we're not going to review th with respect to the continuity of employer this is a one of the issues that clearly in front of us here is does the term employer in the definition of prior plan include not only his current employer but  prior employers how much evidence as to the that would go to the application that term employer was in front of hartford that would have prompted inquiries solicitor said well ok let's figure out what the relationships were between his current employer my question is not what is the policy say my question is who are the various employers of your clients and where will a ship's among those employers so that one could determine whether the term employer on the policy included the prior employers or not and the evidence of the policy is not evidence of the underlying facts that's true so what evidence do we have of the underlying facts or what notice of the underlying facts were there that should have prompted hartford and they had a duty to then take that information which created at least inference of prior coverage and go with that what evidence do we have in the record now before us not merely the administrative record but the evidence now before us of the nature of mr having outgoes employment by various employers that would help us decide whether the earlier employers were employers within the same hartford policy that's in dispute now why would i ask this g i referral hard for policy if it was you know a different employer it's the same policy that's at issue here so i think that creates a very strong evan and sheree showing that it is one in the same employer otherwise there would have been some switch there would have maybe been a later issued policy or an amended policy by hartford or something else but  same policy so i think that also tends to show that continuity between one insurance policy and the next which i believe is that the prior policy definition is pointing to and it's a prior policy but it's by the  i believe that that's true and if you show that i don't believe we did because as a as a matter of fact there was no issue as to whether not include very substantial portions as to this whole bunch of information that wasn't relevant concerning why an accidental death and that sort of thing and i don't believe my client if i'm remembering apply then i think it's only natural to couple that with this or cap the ankles reasonable expectations whether person under federal common law of average intelligence and experience some time for a bottle yes thank you very much well if we read that exceptions he's got multiple problems with meeting that an exception number one it says if you begin insured under the group insurance policy on the planet effective date well the plan effect of date a defined in the policy is april one two thousand that's the date the polls you first took effect he was not even an employee of your image on it for one two thousand who is in employee health he appears to have been an employee of rocks are o c s which i understand your question in the out if i can work back into that so it's not an employer if you're a med there is no evidence actually in the record other than the self serving declaration did that he was covered under any you know that's really all declarations are self serving yes and i and we can't put aside all declarations so is there any other problem with the declaration this i decide the fact that it advances the interests of the declarant well no but i believe that under summary judgment the trial court judge fully could set aside that in discount that evidence was not supported by any other evidence file might have been able to discount it if there's a stack of evidence to the contrary you can't create an issue by turning on a declaration that says that's not true but is there any evidence at all with regard to zach lee how what his job passed and what the company's relationships with each others were during this time period i mean can we pursue the possibility that his employer at that time was acquired by or the business acquired by or somehow what we are now calling your own i don't know that name change to so i've kind of lost track but whoever his employer is it's actually he was just grinding away at the same job as the corporate transactions went on he winds up with the company known as euro mad well their evidence of precludes that possibility i have two responses to that if i may the first is the other than the hartford policy the only other other evidence first the other evidence if he participated in this plan if you buy radiation oncology computer systems from october one ninety nine through november thirtieth two thousand all right we don't know we don't know the exact subject is the declaration of the plaintiff in broad language and the e mail that talks about him being not a new hire but part of a group that transfers then those both seem to suggest that maybe there's a relationship amongst these entities so that his job is not like you came in off the street got hired or left one job into another but that from his perspective he's grinding along and it's just his business gets acquired and he winds up working with a new name on the paycheck but he's working at the same job well and if we can't preclude that then we have a basis for summary judgment with regard to that argument well the first way is precluded is because the policy does not cover that situation the only time the continuity of coverage march thirty one two thousand he's working for this this business that winds up being acquired by your own mad how was it that couldn't arguably fall within the definition of prior plan here well i'd say first we're speculating that he worked for a company because again stop right there with just talked about that and he seemed to acknowledge to me there's no evidence to counter the statement of the decorations and the inference arguably drawable from the email that he worked for somebody that got acquired or got pulled in the euro mad so don't tell me there's no evidence is there no evidence to the contrary and there's at least a smidgen of evidence that supports that very so give me reason number two well ok and what i meant by that is just he was he was participating in the rocks policy not an s s g i policy i find it but i don't know who robs it why don't i don't know either that's not my problem granted is this a powerful players case presented so far no but that's not the question is former judge well the second issue i look at is why is there a gap in coverage then all right the evidence is he did not become insured under the hartford plan until march twenty seventh of two thousand and one that's over three months policy and plan and the dates of that and then it then that applies to the third affectively provision will not apply to you that's really not what we're talking about we're talking about the second paragraph that begins if you become insured under the group insurance policy on the planet effective date which is the date the plan first took effect as otherwise defined in the plan and were covered under the prior plan on the day before the plan effect of date then the preexisting condition ceases to apply on one of th problems with it we've already discussed you didn't become insured under the hartford policy on the planet effectively and why not because he was not even an employee that money actually i don't i don't so i don't understand why not only ok let's assume for a second alright that this prior employer he was actually under the rocks plan we don't know exactly who rocks is placed in our present evidence on that but there's still a gap in coverage if we take his effective date as effective a key first participate in the hartford policy that is more than three months after his rock every day and yes you know how do we know for sure that that's  investigate sorry if you're saying well i don't know what the rock policy s and so on how much of it is your obligation to find that out well here's a here's a different problem and i think there is some obligation but let me work into that because whether this is a risk or whether this is under common law  failure to investigate does not free coverage you know i didn't ask that i asked what is your obligation well are under reclusive florida certain context that i think it speaks to the summary judgment situation where you comment about the lack of evidence we don't know  i thoroughly agree figured to investigate is not to create coverage but a time when the facts are uncertain and your client did have a duty to investigate i'm not sure that the uncertainty can ever work to your client's advantage that it may it may be necessary to pin down just what the supplier relationships were before we can figure out how the policy language it's applied and if that's the case it may not create coverage but it suggests that maybe this isn't the right stage for it we don't know then who responsibility is that we don't know well there is evidence in the record which i submitted in the supplemental excerpts of record debt harper did indeed investigate this point on appeal now contests really hartford's investigation appeals opinion because instead of waiting it it did take some time hartford let the claimant knows that there were a number of issues that were taking longer than normal and instead of waiting claim when it hadn't filed suit now so the investigations unit in but there is evidence in the excerpts of record the supplemental excerpts that harper did indeed investigate these issues but did not come up with any evidence that would support this is the silberman yes thus far we've been talking about whether the terms of the contract provide coverage even if you're right i wonder why it is that he doesn't think it best summary judgment is the stopping point he says he's come forward with should not in writing why isn't that enough enough to get by a summary judgment to stop well there's two problems with it number one because it's been held by the u s supreme court that a policy holder employers actions   i think you've got to present sufficient evidence to chola triable issue that is evidence that would show it's a saying whether it's we who the employers were it's the same for with the hartford there was plenty of opportunity to investigate there's plenty of opportunity take discovery place made no effort before the court say wait there's not time for summary judgment i need to do more investigation i need to take depositions he's not appealing for many discovery orders the trial court didn't to consider evidence from outside the record it is under mongoloids it was only done a rare case that was done here there was no evidence that the trial court excluded because it wasn't in the record so what i'm saying is plaintiff had plenty of opportunity to investigate all of this to take discovery that wasn't done it's far too late at this point to complaint old now i wish summary judgment had been granted i want to go back to the discovery didn't do porpoising i think there's no evidence you're saying there's not enough evidence to to survive summary judgment because well played it's got the duty to prove a case has to come with a prime motivation case such a little bit of evidence is not enough to drive summary judgment is that altered by the fact that it was presumably your client that was supposed to gather up the facts and and be able to put the facts on the table not saying create a coverage the policy wouldn't call for i'm saying at the time of summary judgment in terms of saying how much play that has to come in with this is that bar may be lowered because your client was supposed to investigate and come up with the facts i would say no because in fact on the novo review the court is not supposed to be looking at what the insurer did or did not what the claims administrator did or did not do in fact until recently there was a lot of dispute as to whether there was any duty to investigate under arrest at all because the deal well regs don't require that now a baby was really not cited to the court that talks about discretionary review now if you don't investigate you may lose some of your discretion that is the discretion may be lessened well what's the ultimate ramification if you do a terrible investigation you get to know a whole review which is exactly what the court applied here you know it is but you're not quite coming to terms with judge clinton's question and we're not really at the moment are young about don't overrule you when we're not arguing about whether or not a failure to investigate creates coverage where are you going about ok there's some gaps in our knowledge and you're kind of taking advantage of the gaps in the knowledge saying we don't know this but if your company had an obligation to investigate and that's why we it's very interesting that we're arguing about fear to discover facts that were within the plane of knowledge plaintiff would know better than hartford would know who his prior coverage was who his prior employers were and would also be speculating to believe that in the course of investigation both certainly by the attorneys the people not contacted the prior employer the people have not contacted mr beale you have to introduce the information not before you all we have is the concrete evidence developed but i don't believe it's certainly not in the law a requirement of the party opposing summary judgment that they completely disprove plaintiff's case plays got to has the burden to come forth that evidence to prove coverage then we can attempt to disprove it or we can say well there's a lack of information well i believe that under as i stated earlier under the definition itself we proved that he did not was not entitled to kind of coverage but moreover called for or not allowed into the policy this is again if the policyholder is the employer if the employer wanted a policy that looked at if we acquire other employees there are also good carny of coverage we could somebody could have written that and maybe it would have been a higher premium that's not what this policy provides they could have maybe gotten rid of a preexisting condition altogether at a higher premium that's not what this policy provides this policy is the stream leaks first it's only intended on kind of coverage und language to apply to those employees of your ahmed who are employees the day before under your own as prior policy and there would be intel the hartford's policy and yes it's very common to have that will of your prior your current employees for you aren't going to lose coverage because of kind of coverage if they didn't have time to the coverage was problems with the prior policy that's all it's providing for here and that was what was negotiated between the employer and hartford that is the four corners of the contract we look at ok if your conduct thank you thank you very much response so you couldn't get the discovery our hands were tied we wanted to get discovery and it's it's it's somewhat outrageous to be accused of failing to conduct something that we are prohibited from conducting by the court i mean we would have done that how many how easy would it have been available to you to how easy would it have been for you or how easy would it be for you in the future to figure out who's the precise nature of the  that the s s g i policy is covered under a memo to mr cathy and you're asking this to draw some distant inference somebody somewhere has records that answer all these questions specifically so let refine the question to make clear how hard it would have been if we find out well it wouldn't be hard if we could suppose some responsible person of hartford who didn't commit perjury and testify accurately in their deposition as to whether in fact they imparted that to change and she did this of a whole body of knowledge that it would be useful to have this is as constable to your client as it is to hartford and we don't have any of it is it obtainable if life is breathed back into this case declaration at least which of the given the opportunity to try your honor we were not given the opportunity to try and that's why we have the evidence that we have today i'm concerned that you didn't appeal the discovery order what do we do about their argument over coffee arco versus hard for life is now submitted for decision with your indulgence i'd like to take a five minute recess before we do the next case