to provide retirees with a vested right to lifetime health care benefits that would continue even after the last cd expired now it's undisputed in this case that the two thousand c v a contained no language specifically imposing that obligation on honeywell the district court nonetheless found the c p a ambiguous and relied on extensive gabbett insta find such a lifetime benefit that holding was there in this court should reverse first to start with the plain text of the contract the two thousand ambiguously did not promise lifetime health care benefits to retirees and we know that for a few reasons first of all each contract contained a clear to racial clause and as the supreme court recently said in tac it quote contractual obligations will cease in the ordinary course upon terminations of the bargaining agreement secondly when the parties to this contract want to divest benefits for life they did so explicitly and they did so clearly for example they expressed we promised quote lifetime pension benefits and they included detailed requirements for help and she benefits would vest they express upon promised quote vested thrift savings contributions and they expressed the promise quote lifetime health care benefits for certain surviving spouses the contract does not explicitly promise lifetime or vested health care benefits to retirees and that's very significant the u a w and honeywell are sophisticated parties they know how to vest benefits when they want to and they chose not to do so in this contract and as this corps explained now three times in gallo in court and its most recent decision in watkins that difference in language demands a difference in needing as the court said in gallo quote we must assume that the explicit guarantee of lifetime benefits and some provisions and not others means something it's also significant that in my in my degree a contract provide for a lifetime granted health care benefits for survivors of retirees get the contract i don't think so your honor for three reasons that i'd like to try to get out and in first or just to set the backdrop that provision wasn't added to the contract until the year two thousand so there were fourteen c p a s before the year two thousand and they did not but go ahead couple of responses to your direct question i'll come back to that one first of all even if the court might think it's uncommon to grant lifetime benefits for surviving spouses but not retirees uncommon is not the same thing as in big us this is what too district court was troubled in found ambiguity because he believed it would be uncommon for the parties to confer greater benefits on the surviving spouses than the retirees themselves had that's just not true in this case and i think you could can understand that expect surviving spouses to have benefits that exceed those of their retirees and that's just not true here and i'd like to explain why the c b s promised lifetime health care benefits to surviving spouses of retirees who die during the term of the c retiree dies during the term of the c p a the surviving spouse receives lifetime health care benefits but if the retiring dies after the last c b expires then the that promise has expired and the surviving spouse does not receive lifetime health care benefits so the benefits between the two parties are aligned either one or both the retiree and the surviving spouse have lifetime health care were two neither the retirees nor the surviving spouse receive receive benefits for life so i think the benefits are actually aligned another point of light to make about the surviving spouse clause is the district court thought it would be uncommon or absurd to have that in the contract and i don't think that's true i think there's a number of good reasons why the parties could have done that there wouldn't have a surviving spouse clause or a clause that promised lifetime benefits for surviving spouses first of all it's much less costly to provide lifetime health care to just a limited number of surviving spouses than it would be to provide lifetime health care to both surviving spouses and retirees it was also cheaper because honeywell was only obligated under the contract to pay fifty percent of the health care costs for surviving spouses whereas it was obligated to pay one hundred percent of the cost for retiring health care secondly  we know this is an unusual uncommon because we have at least one case where this exact fact pattern came up that was in the second circuit's decision in blue blue listed for forty two after fifty five that case involves very similar language that did not promise lifetime health care benefits to retirees but did promise them to surviving spouses and the court found that contract unambiguous and enforced it as written as the second circuit said the promise to the surviving spouse does not require lifetime benefits for the retiree's and does not constitute affirmative language that could reasonably be interpreted as creating a promise to vest retirees benefits mr allen in that case to the clause for benefits for the spouse and dependent provide lifetime benefits for surviving spouses however for retirees who died after the expiration of the last e p a that promise has expired and so what would not be obligated to provide lifetime coverage and that as if i was confused because i thought that  honeywell had heard for retirees who had died after the c b a the benefits for the surviving spouse and children didn't know you're my damn sorry for any clarity about that honeywell believes that it signed a contract from two thousand to twenty fourteen where if someone died during the term arguably persuasive than that that would suggest that the provision is the bigger issue and i don't think there are two plausible interpretations and i want to walk through the logic for that the district court's belief that there were ambiguity here was not that there were some ambiguous word or phrase in this case are ok the district courts found ambiguity not because there was some word or phrase in the contract that he thought was subject to two reasonable interpretations he just thought it was very unusual or odd to read the contract to promise lifetime benefits for surviving spouses but not to retirees and the rebuttal of that is uncommon or in our unusual is not the same thing as in big o as the point would be that the language of the agreement determines whether or not there's ambiguity not whether it's common or not and meaning if ambiguity to be found it's found in the language of the agreement if it's unambiguous that's also determined based where we've com is that we've come to a point where the language and structure of the green minutes matter a great deal and while i have written an had an opinion in re i'm a little uncomfortable with the fact that the work seems so hard the analytical and careful analytical work seem so hard in each with all due respect to the court i do think parties continue to struggle with the law in this area and it is yes you say part of it is driven by the contracts there are different contracts of different provisions but a lot of them have very similar provisions as well and i think there is some inconsistency with all due respect to this core in the legal principles that have been set down in various dears here's my view of it as we started out with galileo and then if you interpret it gal in the way some of our colleagues were interpreted gallup i thought we were failing to do the analysis mandated back hackett and so i thought it was more important to take a very  specific approach however i may i didn't want to see this transform what was a factual finding into a legal principle however i have to admit that personally can't see another analytical pie and i found it a little unsatisfying that it seems like we're starting over again every one of these guys i hear you honor and i think part of the trouble and i see my time's expired if i might have t answer but i think part of the trouble is i think people are torn between we know yard man is no longer good law but people are also worried about creating a clear statement rule in the other direction and so that one ends up as you end up in th don't have clear state rules anymore i mean that's the poet it is but your honor i think that some of the traditional principles of contract law that tack it the tack enunciated they don't create a clear statement rule but they do provide kind of very good guidance right which is and i thought gallo did a nice job of laying this out which was look if a contract has a durational clause then the durational clause gets a lot of weight it gets respect and then you look back at a specific provision to see ok in that specific provision is there an indication that the parties didn't want the general durational clause to apply to that and in this case there just isn't there is nothing in respect to retiring health care that doesn't call into question the result in either  please the court john adam on behalf of the retirees judge races post trial merits judgment is well grounded in the c b a and in the record evidence judge royce held following the trial consistent with the c p a terms supported by the record evidence and based upon application of the ordinary principles of contract law that honeywell promised help best of health care health care that would survive expiration of the collective bargaining agreement and judge rice did exactly what tack it instructed was to find out what the party's intentions were there are there are multiple grounds to affirm judge rice and i'd like to address two grounds in my brief time first the c b a terms themselves and second judge rise held a trial he heard the testimony of bargainers and made findings of fact and found that the overwhelming evidence supported the retirees but first let's go to the c b a terms it's undisputed that honeywell promised retiree health care to the retirees and to their families and judge rice looked at the contract language that says upon death of a retiree honeywell will continue for the spouse in the dependent children health care for their lifetime that is a durational promise upon death will continue there is no great will continue for the lifetime of the spouse judge rice looked at this language inspired and stated that it created a strong inference that the retirees would have the health care for their life until they die and that it would pass on will continue to the y i don't think so george bush the durational clause addresses contract language where there is no durational language at all for example in gallo there is no durational language just continued health care this language has durational language upon death of the retiree will continue for the lifetime at the very least that creates an ambiguity based on patent pavement ambiguity doctrine also based upon leaving ambiguity judge rice therefore did what he should have done he said let's conduct a trial and let the parties present evidence as to what the intention of the parties were but i would all i would go back and point out with respect to the language judge given that our language i believe is far stronger than the language that was in the hayes or reese we kelsey haters head will continue language we have upon death of the retiree will continue and then lifetime that language i believe is even stronger th this court held was ambiguous and is stronger than language and reason and it's stronger than the language and gail and honeywell likes to invoke gallo as if it's an incantation that it decides everything as you pointed out judge givens in your denial of rehearing in the hayes these cases are facts specific and you just can't apply general propositions without looking at the contractual language and hear this contractual language at the very least judge wri found was ambiguous and then he directed a trial and it trial the testimony overwhelmingly judge rice found supported the retirees because at the arguments in on the contract language judge rice asked honeywell honeywell is is saying the best there's best in health care providing spouse and he will says yes there's vested health care for the retired for the retirees dependents yes but there's not health care vested for the retiree and honeywell said that was their position and judge rice said that they were not supported by the language or at least provided one plausible interpretation but at the very least it created ambiguity it seemed to defy common sense that it benefit had existed prior to two thousand because u a w took over this plan in two thousand and the first thing they did is to figure out what the practices were with respect to health care and they met with the person the h r manager at honeywell mr green who was  person the new benefits and they were advised that there is best in health care for retirees but that company does not pay for survivor benefits so we got this language incorporated into the contract the parties discussed it as a vested health care benefit for the retiree the testimony of the witnesses were the bargaining they stressed that there is a reason for giving this benefit is the retirees have health care until they die the retirees have lifetime health care it should be continued for their spouse when they die and the company should pay a portion of it that's the context in which this took place in two thousand that's the context in which judge rice made credibility resolutions in favor of the retirees and that makes perfect sense given the context and the content of this contract but we have more than just two thousand then later on in two thousand and three there was discussions about caps in honeywell agreed that the only changes that could be made that were ever to retirees would be perspective only they cannot go back retroactively because u a w told them in bargaining it's illegal you cannot alter the benefits of the best of retirees who vested with this contract in two thousand and three and two thousand and eleven judge rice then heard the testimony honeywell's chief bargain or richard hancock he was the last partner for honeywell before they sold the plant and honeywell went into that contract knowing that they're eventually going to sell the plant and honeywell wanted to reduce the opportunity for retirees for individuals to retire with the best of health care and honeywell first proposed a thirty day period under the new contract you have thirty days to retire to get your health care busting testif raised quote hell about this he told hancock that these retirees that earn this health care that it was lifetime health care and they are entitled to retire with it that they earned it and how do you while an u a w agreed to extend to use the words of mr hancock the last window of opportunity to retire with best of health care mr hancock testified that the premise of the retiree health care negotiations was lifetime this was honeywell's last chief bargain and that's what bu testified bus think was there in two thousand for the u a w he was there in two thousand and three two thousand and eight two thousand and eleven that the retirees had best of health care this was the perfect premise upon which the parties operated and judge rice found for all those reasons that the parties intention was not to limit the promise of health care to the surviving spouses honeywell calls it idiosyncratic promise just right spelling there was not a single piece of evidence to support it honey argument that this was a unique special benefit that only would apply to survivors this benefit applies the life time promise applies to retirees and their spouses that's the only logical commonsense way to understand what happened and that's that's why the language is important in that language i would go back to suggest that there's many ways to express vesting of a health care promise there's no magic words ye doesn't require tech it doesn't require kelsey hazon reached to require it can be expressed in many different ways and that's what the u a w by are going to testify to as they put in language upon death of the retirees will continue was designed to put into practice the language of lifetime health care and then after the last contract expires if we need any more evidence the last contract expired what happens this money will terminate health care benefits no health care but benefits continue that is post expiration conduct undisputed post expiration contract that shows that the promise did not end the expiration of the c v a and how do i want to say that the promise even to the survivors surviving spouses now is limited now i do well says that if a retiree dies after the contract expires the survivor does not get lifetime benefits the reading out the even for the survivors the concept of lifetime what does it the retiree assuming the retiree only dies during the contract we will continue health care it doesn't say that honeywell interpretation is untenable and there are six certain other course that have said the notion that the parties negotiated a greater benefit for the spouses than the retirees is an reasonable an amp cert and judge right back to that i'd like to ask you about this second circuit case the case yes how do you distinguish that going back by just looking at the language of of the c b i in that case versus this case is very easy to distinguish a judge it's not a contract case there was not the parties intention under attack it controls there was not a contract it was issued summary plan description so there was not two interpretations by the parties to the contract is there is here and in that case it was a it was a plan document that was issued and this language that they're talking about was not even in the summary plan description it was letter and then there are some of the retired surviving spouses try to latch on to the letter so you don't have tacky controlling it which is the party's intentions control was the promise intended to survive expiration of  apply general contract and we would have to interpret tackett as saying some stuff about contract principles but also say some stuff about labor policy that would lead us it would  interpreting collective bargaining contracts outside of the retiree health care context they look at the practices industry standards etc course of conduct is considered when interpreted contracts the supreme court has said c b a's are not ordinary contracts but but i don't think you need to get to the issue of trying to determine whether tack it means you can also look at course of conduct when interpret in the four corners of the contract because here this language is language i believe that is stronger that would then it was in research kelsey hayes and that in the very least it creates an ambiguity when you promise health care to the retirees and their families and then say upon death we'll continue it mr allen for the parties i'm sorry your honor if i misunderstood the point you were making and i want to go back to that because having the having the trial allowed the parties present evidence in mr when mr allen's explanations for why the parties might have done it there was not any witness from honeywell or the u a w the testified that was the reason there was no testimony from a witness that said they were parties were intending to create a special benefit that was limited to surviving spouses the evidence was that the retirees have health vested health care and we wanted to extend it to the rich surviving spouses and we wanted to put language in the contract and in two thousand when this language was negotiated retiree we'll continue the parties understood that that was creating a vested right to health care and that's how it was interpreted and applied by honeywell and judge me findings of fact and credibility credibility resolutions that supported that interpretation and understanding so based upon the strong language or at least we believe at least ambiguous language based upon the record evidence of judge rice's findings of fact it's credibility resolutions based upon a commonsense reading of the contract language we believe that judge rice's findings of fact and conclusions of law and his finding that the retirees are entitled to best of health care should be affirmed i'd be happy to answer any it any more questions  your honor we do believe the contracts on about us and there's one more aspect of the contract i didn't get a chance to highlight in my national argument that like to highlight here and i don't i think it's something that i don't believe was true in either r hayes and that's the fact that each of the post two thousand contracts each renewed entity new people benefits for people who had retired under prior contracts each of the post two thousand contracts would renew health care benefits  what they called current retirees people who had retired under prior contracts in this court is now held three times in watkins in gallow and in an unpublished decision from september of this year  such language indicates that benefits are not vested is this quote recently said a few weeks ago in watkins language continuing health care benefits for current retirees quote implies that healthcare benefits had not vested because there would be no need to continue benefits if prior agreements had created vested rights such minute so i think that's more evidence that the contracts iranian big us about the duration of retiree health care benefits bush i did have a chance to look back at question two more put points before we do think the contract is unambiguous but even if the court reaches the extremes of governance we do think there's a lack of a record here that would establish an agreement by honeywell to provide lifetime health care benefits asking honeywell to provide health care benefits for the lifetime of the retirees and finally your honour's whatever this court holds with the post two thousand c b s we strongly think those contracts are not ambiguous and that the lower court erred on that but if the court disagrees at the very