standard under the correct a written standard which is the no bow rather than abuse of discretion the outcome more likely than not will be in favor of mrs till to correct the district court era error we are requesting that this court till dr gas go developed a pulmonary embolism due to an airline flight guide dr yes goes employer provided coverage under to a recess x what case what case are you referring to ok so under but under an abuse of discretion standard one court d held that the insurance company had acted reasonably in not paying benefits to dr gas goes with that and the other where the court adjudicated the case no but the court still cases similar family funded accidental death life insurance program to insurance policies one from aetna and one from federal insurance company federal insurance company agreed that on the same facts and the denied the claim so the point is that because federal insurance paid the claim for a one million dollars on the same facts this demonstrates the strength the mrs hill climb again well sure in the way it affects mr tiller was i mean think about in normal times millions of people fly every day and millions of people don't develop embolisms and die on board a flight it's in the same sense that argue presented with a history there's no doubt that he presented with a history of having these previously right i agree with that actor and dr braun says these events are however none of these events are sudden but are ongoing wrote his opinion but that's what his opinion is as well and i don't have the exact language in front of me at the moment i do i do i just read a two year yeah it's it's quoted in the memory yeah i know that's why i got very convoluted and ambiguous and i would say under normal insurance laws were interpreted and the case the no two things one the language needs to be construed in favor of coverage and most courts looking at these accidental death policies will not enforce the terms literally and are looking more at substantial factors because for example that the policy which mr till mrs killed was pay the one issued by federal insurance if you read it literally it's probably impossible to comply with the terms unless unless you are hit by a truck and die instantly because it refers to  for i think a bodily infirmity and i think if you're hit by a truck and let's say you're bleeding on the road for ten hours eventual you're going to die from some type of organ failure and i may have tortured the language slightly but when read literally it's almost impossible to comply with with a lot of these terms so most courts just say usually needs to be some substantial factor and this is why again what are we supposed to infer from what federal insurance and together federal insurance in the plan agreed that mr till died as a result of an accident so the point i'm trying to make clearly is that the outcome is likely to be different if the diversion of reasons because if you because those who are responsible authority are not enough to grant discretion if you look in the previous section of the plan where discretion is clearly reserved to the vice president compensation and benefits there's reference to language that is clear and laminate find it for your honor it makes all the difference an interpretive quote interpretations or decisions so made will be conclusive and binding on all persons having interest i suggest to the court that language comes from a case pagan verses nine expansion plan that language gives about conclusive decision making i cited to the court a case involving martin marietta out of the th circuit which in two thousand the th circuit held a case involving met life where it was the insure that response the word responsible was not and up to confer discretion secondly in order for a party who has appropriately reserved discretion the arista statute provides it's in twenty nine u s c one thousand one hundred and five see that delegation of discretion can be made but it needs to be done in two steps it needs to be explicit it needs to be in discretion and i was like to point to a case the judge posner wrote in two thousand called hershberger and he solved the problem for everyone in the opinion he wrote there's the say power blind which quote benefits what we paid under this plan there and that would be included would make it clear to answer your question there is no magic word but that would not be enough what you describe what has to be convey is some type of discretion final minute decision making authority subjective but and and be very clear about it particularly because i'm convinced from reading the plan family wanted to protect its employees and it reserved discretionary authority to the vice president of compensation and benefits and left her him or her with final decision making powers ok well as i said you have  plan language as we know this this appeal raises essentially a single issue did the district court apply the proper standard of review when he reviewed the benefits determination see if it was arbitrary and capricious plaintiffs argued in the district court that stanley had not properly delegated discretion to atma and so the district courts very carefully went through the plan documents look at the life plan that we've just been discussing and in the sections of that we've been discussing section five which talks about the delegation of authority to the insurers the insurers handling these different benefit programs is defined earlier in the same plan and importantly although stanley black and decker is delegated or i'm sorry designated as the plan administr as your honor pointed out in section five hundred and one it says except you know this is the power stanley will exercise except to the extent that those powers have been delegated so the district court and looking at the life plan in looking at also in the booklet which was given to the employees of stanley they are advised that the coverage is granted under that life insurance policy as well i really want to be clear that all of the affair all of the discretion was  delivered to the insurance company why have five total one the i mean if we're looking for explicit language isn't it a little roundabout to say well you look at five dollars g and it looks like the clinton administration has all of the discretion but that the insurance company has the discretion i think you're on a reaction we have to go all the way back to the beginning section one o one which creates the plant section want to share it with that we have a number of component parts and it the different coverage and i'm looking at one o four includes basic life insurance basic accidental death those are the coverages that aetna provided it also has business travel insurance that's a separate different coverage different insure that was provided by by federal so i think it's a progression as you look through the plan you have the definitions in one you have the designation of family as the planned administrator which is required under in section two and it goes on from there so when you get to section five where they talk about the actual plan it ministration it's very clearly said here the powers that the plan administrator exercises unless that administrator has delegated them elsewhere and five o two and five o four show the delegation to the different companies who are offering the different benefit  as we know from from you know cases in the circuit there doesn't have to be any magic language it is simply a test of is it apparent from a reading of the document that discretionary authority has been delegated and the district court was correct in looking at the documents and saying yes it is clear that it had been properly delicate with respect even under sparsely part of the supreme court told us that the default standard well i think i don't think that the district court treated it superficially he actually dug into as you know this the luminous record went through the different documents and also through the case law in this circuit which says it just it has to be apparent from the documents but no magic words no no you know the plaintiff might suggest that certain language has to be included that's just not that's just not the law that's developed since firestone is formed to put in the plan administrator and then the entities that are actually providing the cover so you can see both in this plan from stanley's side in the life plan and from aetna side in the actual policy that says we are providing these coverages and we are are the claims for do sherry responsible for interpret interpret ing the coverage and determining benefit so that is why you'll see the arbitrary and capricious standards frequently because under arrest it's meant to be a a next step review you don't automatically go to the district court and automatically no in fact delegation had been i'm sorry that discretion had been delegated to aetna so it was an issue that was teed up for the for the district court in the summary judgment to two points about both yes go in and plaintiff citation to what federal insurance did here which is the one thing both of those examples have in common is that they involve different insurers when you look at the two yes go decisions you'll see that it wasn't just the standard of review that was relevant there was also different policies and different policy language and so it is not surprising that you would have different results from the court based not just on the standard review but the actual coverages the same can be said about federal insurance in this case whatever reason spectral decided to resolve that issue with with the plaintiff and remember central insurances st position was that it was not covered at some later time it changed its position and decided to pay the claim but we're not on the other side of the caption why does it matter how the employer allocates good discretionary authority if the employer is the one who retains it well indeed that's who they are rather trigger stated a review over the period well that that isn't what changes the standard of review it's the arrangement between the the actual plan administrator because the recess says that plan administrator is free to delegate its discretionary authority to other entities so that's why in this case that delegation was done in the life plan one of the reasons why stanley was actually named as a defendant was count two s reformation of the life plan and that claim was resolved against the plaintiff and has not been appealed so that reformation claim was directed only is against sta i think that's why they were all there again i guess i guess my question is sort of water i mean it's maybe a broader question and maybe you don't have a position on it the why do we think about it in terms of deliberation isn't just about whether the contract  mechanism by which he it can share its authority delegated authority it just has to you know be in writing and and comply with arista  decision plaintiff has not claimed on appeal that the actual decision that this was not arbitrary and capricious was incorrect so that's not an issue before the court it's simply a question of what's the proper standard of review applied and if the default standard of review is to know bo is the proof pony and to show by the preponderance of the evidence that the default standard has been switched to the more lenient abuse of discretion standard but the nd circuit case absolutely on point is sharkey versions alter mark it's been the law for a long time and as i've pointed out in my opening argument the language here has to be tortured in order section dealing with the responsibilities and authorities at now if that language was mirrored yes we wouldn't have this problem think about this your honor the benefit plan which is a codependent here and did pay benefits and was a codependent in the case with federal it's like a bucket and the bought in the bucket protests will provide a series of benefit and what's drop into the bucket is one insurance policy from federal another insurance policy from and it says these are the benefits that are available so i didn't get to address in my opening the other important issue or we are asking the court to a follow up on halo more requesting that the court in force the secretary's guideline regulations which require production of the guidelines which was asked for pre suit during the suit and  specifically actually referenced in section five hundred and two of the plan to provide quote the insurance company will decide claimed in appeals in accordance with its reasonable claim procedures as required by a reception by those three and the regulations issued there under close quote the regulation should have been before the district court so that the district court could measure whether at and i had abused its discretion or not and because at that chose not to disclose