flat out it can't be no matter what my position is very simple he says in the statue where he has to have been asked to have all twelve elements this court said he showed up all quell the elements the statute says it sh don't use me every plan must be managed and govern according to a written plan district this is an insurance policy and there is nothing our this says is offered by the plan or anything like that it is written by the insurance policy issue to the plan it's like good your homeowner's liability policy you bought an insurance policy that become your answer with written instrument the insurance policy was a policy to give benefits yes it was the surest policy to the plan for benefits too if you prefer to pay for benefits  and it has chosen to purchase something that excludes your client's condition from receiving benefits and you don't think so because why well first of all we want to go on to the exclusion itself that's my that's my problem with your case it's it appears to me that there's a clear exclusion and that your client would simply be receiving a windfall that no one has paid for i mean and that's distinct from whatever penalty might   actually three problems with that number one there's a short term insurance policy also issued by harvard that has the same exact exclusion if that's flues was applicable why did they pay him short term need to address one issue in a time i really don't mean to offend you already have if you if you number one just focusing on the surest policy first of all somehow that solution doesn't apply during the short term when there is the same to work he's already think covered under the plan this he's been employed by them for several years already took some time off right time walking away for time off because he was on disability and he was being paid benefits under the plan and he returned to work he was trying to get that to work so he's employed there's that there's a period of time that before the policy can stand right and there's a period of time that they look to for the exclusion right yes but the policy exclusion i'm making two arguments number one if dollars was paid for we can't lean airline or whatever they call that sometimes policies do pay because they don't want to be sued in terms then they ultimately determined that the well pump a short duty but when i really want to go back you it's my central theme here is that all right let's look at the exclusion i don't think it's applicable in besides i was going to go to the jury that was going to  trial and it hasn't gone through yet that issue the question here is what documents control the benefits now i cry reception then of this action and that says the benefits action this plan has to offer we know by statute that their plan has to be by a written instrument but on from the employer or the employee organization well this is not a written instrument by the employer employee instrument this is an insurance policy from harvard so i think we understand your main argument you have about a minute left if you want to save it for remodel yes i have a minute left i'm sorry i don't  opinion as to will you know whether you can see was a nazi was it says you have to have a plan and you have to administer it according to the terms of the plan all i'm asking at this time is the court to begin colville for receiving fifteen thousand dollars for nothing regardless of how the payment is characterized there is no dispute that there was a general rel known claims with respect to hartford with respect to any of its acts or omission including a waiver and that's fine i don't see how that helps you go ahead and teach it seems to me i mean my problem with administrator here looked at the preexisting condition exclusions of the plan the plan has the appropriate firestone language conferring the abuse of discretion standard and basis that the district court dismissed you and but then what you're sensually i think you're asking us to review it on the merits here why isn't it more appropriate if you should know that just next to come back to the plan they don't just view the date of the injury they don't just view the timing of the medical coverage saw for the injury and don't if you that under those facts it would fall within the exclusion they merely say that we don't think that this exclusion should apply because it was in a document that had a cover page that said summary plan description this exclusion itself and make a determination that this language did exclude this type of play and maintained pursuant to a written instrument and nab twenty nine united states code section one one zero to a one and a one one zero to be there is not in the statute or the related case law that says that operation of the plan is on a written instrument have to be either an insurance policy or a certificate of insurance or the additional obligation of the plan to provide employees with a description of what benefits are covered and not covered and how to make a claim and who descended to and those twelve elements do under the plan in order to make a claim and as this court has repeatedly held in the cases that we have provided beginning at page twenty nine do not change the entitlement to benefit mr goldberg kansas condition no matter what and have few deeds that it no matter what the plan said no matter was an insurance policy that he could not reverse his medical condition based on the way in which pollution was communicated or the document under which  anyway would have changed his rights to benefit if the court were to assume hypothetically that the summary plan description had the same language with the exclusion and it would have to because some replan description cannot conflict with the written instrument value is the plan on direct result of section eleven o two then mr goldberg would still be excluded from question what were the factual disputes are there that would that should be returned to the district court even assuming that there should not have been a dismissal there was was a hard question to