with the first case state of clark the companion life insurance thank you your honor madison on behalf of the appellant's in this matter this case focuses on whether the lower court was appropriate in finding as a matter of law that the savings clause in the disability rider did not apply in this case we argued that it was in fact an error by the lower court because it found that the clause could not have applied because the court found that the ambiguous term of proof or that the that the deceiving had an opportunity a reasonable opportunity to provide proof previously  precluded the same clause applying in this case excuse me in doing so the lower court read into the language of the writer terms that were not there the the writer itself does not can contain a definition of the phrase proof it's an ambiguous term the lower court and went as far as to read into that writer some forms that were sent along to the deceit in eight years prior in two thousand and four by go taking that extra step and to the finding the phrase of proof as by using those forms that have been previously provided the court was  going against the typical to require tenant isn't the word proof something that is you know pretty we'll no it just means bring in so many victims and the notion evidence that your client had to bring in was a result of the social security which in any number of cases we have said isn't determinative in any way of whether somebody used is able for a recent purposes for insurance purposes it's a different standard and i'm puzzled why your client and it's very sad case but wh client couldn't have brought in whatever evidence he had it but just coverage and i understand that position but it's our argument that that term proof is ambiguous you sa that it can be any type of proof what by taking that position it opens up a catch twenty two in this case the insurance companies taking a position that almost any proof would have done and therefore what have allowed this to so disability writer to apply because that term is ambiguous they can in another case say well the proof that we thought would have applied to mr clark well that's not sufficient here that's not proof and then deny the claim later it's the in piggery of that term that come in but that a notice of disability with whatever you had to be required i don't know why what is enough to meet their requirements makes ambiguous the notion that you had to do something the he had it and that goes back to what would be my second argument which is there had to be a reasonable opportunity to provide proof as the moving party here the insurance company they didn't give us any they they did not provide anything suggesting that he had a reasonable opportunity to provide proof what they submitted lots of what they were that there were forms that were said to be submitted by him but also forms to be submitted by his employer and forms to be submitted by the physician there is no available to mr clark at some point prior and we would argue that by failing to provide that information or proof that that in information actually existed to mr clark they failed to meet their initial burden on them over counsel mr cochran i understand  nothing in response to having received any of those documents or is it a reasonable response you know even assuming that it's ambiguous to the phrase and even assuming that it might have been difficult for the employer and or the doctor to have provided that information is it a reasonable response to those issues to simply throw up your arms and do nothing well i would i would accept out of hand that he did nothing there's nothing no proof in the record with respect to what he did just but to suggest that he may have gotten those forms and then given up we don't know based on this record whether he we know that the forms were not that forms were said repeatedly even just before he and no forms were sent back now there may be different reasons why at one point he didn't send things back what puzzles me is that at the very end when the question was rea a spouse event that would have been something that put people on notice correct and you're referring to his efforts to to reinstate the policy and agreed he didn't respond when to their in additional information with respect to reinstatement we would argue that his interaction with respect to reinstatement is different than his ability of the disability waiver or see made the disability rider  again i think that is further evidence that the information was not available to him he did not have a reason the opportunity to provide proof had he had he whatever you do we have to conclude that he did have a reasonable opportunity to provide proof the fact that he took the extraordinary steps of applying to social security to seek their determination that he was disabled the with no i will admit there's no firm if statement that's why he did it but if the only reasonable conclusion is he a piece of thought applied to social security because he thought that was his only opportunity to find on his ability he applied to social security to get social security benefits and that's actually i would respectfully disagree  honor he submitted in his application on the last form he said i do not want s s d benefits that was his remark to the board when submitting his application has no language in the policy in the definition of disability anywhere in the the policy that suggests that a social security determination this is a social security administration determination is the only method of establishing disability and juggling limits and i agree with you there is no language in the policy at all that says what proof should be submitted in order to prove a disability he at the reasonable person thought ok if i go so security i will get my disability determination and this will apply and that's our argument which is the morning your honor may it please the court found cavaleri with covered channel kelly brady on behalf of companion life insurance company and hearing the comments from the judges i i i think they are exactly on point with companions position in this case what we are not here arguing about is did the insured submit anough proof or was an acceptable proof this is a case where there was no proof provided  the appellant asks us a very narrow issue here and focuses solely on a determination from social security the district court correctly held that there's no language or anything in this case that suggest that that's what companion required or was the only available proof that could have been submitted under the insurance policy at issue here my first point i'd like to make is that the appellant argument is is inherently contradictory the insured generally in churns case is always going to argue for the broadest construction of of a provision of coverage and in one part the opponent is making that by saying  look they're arguing that the word proof is ambiguous and that it's not defined and so that it should mean any kind of proof but then in the same vein their argument is that well look and as count and as counsel said we took and i would agree with what you're saying but the part of that that is puzzling is that the record in this case reflects that in two thousand and four companion had sent forms to the insured and use the terms proof when it described please it followed up with him please send back your forms completed as proof of your claim under the waiver of premium benefit and if i can just discuss these forms for a minute they mostly look for subjective statements from the insured himself admittedly they did can contain a form for the treating physician and also a form for the employer to fill out but the application for the disability benefit a simple question such as and this was to be signed by the insured what is the cause of the disability and what are your daily activities as at present and  the second form was a occupational description form for the insured to fill out and this asked simply to describe the nature of the employer's business the duties of his occupation and then to describe how his disability had interfered with the performance of his job so where this is that he needed some formal determination of disability other than what companion had reserved to itself in the policy to decide it is what's puzzling and a bit troubling to companion under the under these facts here because if if social security was what mattered then companion wouldn't have needed to define disability in the policy because companion's definition i can tell you is not identical to social security's and as as the the court pointed out earlier a private insurer has never been obligated and credence to the federal statutory definition or a finding by social security when they're looking at disability under a private policy that any rate he calls and june two thousand and four and says i'm disabled and the and the company provides him the forms you need to fill out these forms but he never sends anything back and keeps making paying premium payments until two thousand and nine brecht that that's correct and so companion ended up closing the claim out because they followed up didn't receive anything back and then they were never alerted to the fact that he was even earlier than that i just wanted to address counsel's remarks so the statement on his application said i do not want to play for benefits which are separate and apart from social security  disability supplemental security income are paid from a separate part of money funding from the government and so i think he was making it clear that maybe perhaps he wouldn't have qualified for the medicare type benefits but that he wanted to apply for  only so if you look at the application i did at least occurred to me that that's what he was trying to distinguish on his application so it's on that basis for all of these reasons that companion's going to ask the court to uphold the district court's decision in this matter granting a summary judgment in dismissing the complaint thank you i want to address what counsel had indicated they said she said that the forms that were sent in two thousand and four were what companions had reserved for itself to define proof under the writer and again that's our whole point is they need to later determine these forms are what we think proof is under the terms of our writer but they didn't put it in the writer they had that opportunity it did not did not put it in the form making that making that term ambiguous and as soon as that term is deemed ambiguous this court's decision in thompson precludes a lower court from finding as a matter of law on summary judgment that they are didn't give me interpreting that term because they had to reserve later in forms that were not in the contract between mr clark and companion those that term