on two but i'm not waiving the other two if you were going to concentrate on today are the lack of a reservation of rights council on the reservation of rights let me ask you something both reservation of rights letters are really important stays in the case in order to protect his interest because the insurance company's interest if it may deny coverage ad differs from the policyholders interest what we have  would you would be saying i think that equitable way that's right to seek restitution because that didn't reserve it's right to seek restitution as it must under california law however rule eight says waivers an affirmative defense that has to be pleaded why wouldn't failure to plead waiver waive the waiver you're you would be then waiving equitable way for your three answers today question first is we do not agree that that our defense is waiver under california law which we cited to you the waiver is the intentional relinquishment of a known right and has to be proven by clear and convincing evidence that's not what we are saying here what we are saying is an element of their cause of action is the reservation of rights they did not do it they didn't are legit they did not prove it so that's that's that's that's one of the  make a blue ridge i'm not sure i'm not sure it helps the other side either because i just know i don't know what it means let's go see him go he doesn't mean very much let's go to the next two answers the second the answer is we did not waste the waiver because this issue was in the case as the judge acknowledged you'll find in the transcript of november eighteenth of two thousand and four i think just twenty one and twenty two november eighteenth of zero four pages twenty one and twenty two the judge said regarding the reservation problem he said they're not getting that money back they're not getting restitution on that day the judge believes that the reservation in seven ninety three f second and they say that this court can rule on a new issue of law when the facts are not disputed it can rule on an un pleated issue now the facts are not just the council on this question there might be a question of reservation might be and if you if you're in doubt i encourage you to certify it let me sum up on this point there was no prejudice i think from them from the manner in which the pleadings came in by the time the judge ruled on november eighteenth they knew of no four they knew this issue was in the case they couldn't put up put in a reservation of writes a letter because they never sent one so that's undisputed where they still bang i'm not sure as of what date they stopped me when you say there was no prejudice some thinking there was no prejudice in the trial if they were still sending checks and they would certainly be prejudiced by not knowing that you were going to claim their mailing away their rights well they knew it that i'm not standing insurance or life insurance or disability insurance is a quick perpetrating a fraud so until it finds that out it really has no business doing anything on for the last six years over what is that over what is prior art you didn't know from the get go they eventually concluded that but it seems to me they never you are never sent the letter if your argument is right that you can't get restitution unless you've sent a reservation of writes a letter before sending a check then every first party case life health benefits at all of these in order to protect against fraud insurance companies would have to stand a reservation of rights letter every single time they get can i hear your concern let me offer a suggestion you could rule that you that as soon as the insurance company was on notice of the potential of fraud in this case or in general you would then have a duty to issue a reservation of rice letter and that question of fact was not resolved by this court and you would remain and in this case agree with me that we are the ones who are prejudiced and that there was no prejudiced equitable from how this developed but if you don't agree with me i have an intermediate position which is that you can send it back find out as of what date they had questions and as of that date they should have  reservation of writes letters i'm running out of time to talk about the other really important issue in this case of with your consent if i may just switch to this for one minute because it's fully look laid out in the briefs the plain error test you have the right and the power to review the record in its entirety particularly in a case like this where the findings of fact were pointed out by the by equitable as attorney and adopted by the trials that's not true the judge marked over them heavily and in his own handwriting ok well you look at phoenix engineering and see if that test is now i think what i think he said that he says if you get close routinely where the trial court adopts the winning parties findings and on the only fact that the judge relied on but he didn't adopt the winning parties finding seamark them over heavily in his own hand you're wanting to have a judge watch the movie yes and that was completely crazy in my opinion golf has nothing to do with surgery or repairing a car this is the issue about surgery is patient safety and dr shand feel their expert agreed with us that safety questions issues are raised here by dr schwartz if he's in the middle of a surgery he has a fast pass and which he did on one occasion he can't continue the surgery the patient is at risk no patient fully informed of doctor sources condition whatever consent to surgery they didn't get along but we have to go by what the evidence says and i'm going to show you in about one minute that first of all he earned a million dollars in ninety two and almost a million dollars in ninety three that's not no explanation and the judge had no explanation and one of the reasons i'm a little energized about this case is that fact stands out like the rock  one hospital on ten committees that he chaired or co chaired he was named one of the top ten orthopedic surgeons in los angeles there is no evidence that he decided to kick back and live the life but i let me ask you something else about this now  dr schwartz was completely truthful and that he doesn't want to perform surgery because of the risk for the patients in case his that back gives out during the surgery  before his disability thirty percent of his work was office business plenty of orthopedic surgeons make several hundred thousand a year not doing surgery they consult in the office recommend courses of physical therapy refer people to surgeons if necessary do forensic evaluations my guess is that all of us no twenty three or four hundred thousand a year worth of peter surgeons to do that yes exactly and that's exactly exactly my point so he's not going to have a surgeon yeah he's a surgeon it looks like under the policy he has to be completely disabled from performing his occupation it doesn't say he has to be completely disabled from performing this occupation in the way that he used to well that counsel with my colleague will tell you in the policy says substantial material duties of this occupation and so what we're arguing about here is themselves in the medical groups to sort of beating surgeons that's their title just just like i'm i cannot lawyer and i like their do is consult never go to court wards certified orthopedic surgeons but that's not the occupation a lot of lawyers never do go to court but he had the occupation of being a surgeon your honor so a lawyer who used to be a trial lawyer but he developed some speech problems so if he can't make a living as a trial lawyer anymore but he can still make several hundred thousand dollars a year as a lawyer he's totally disabled under the i mean i don't want to speak to that case i've had several of these that's a technical question i'm just saying in this case a man who did one hundred fifty surgeries a year and now cannot do one surgery at all is disabled under the meaning of their policy i have to sit down  proof of loss in other words your monthly benefits which are paid are based upon your showing the insurance company several factors one is that you continue to be on able to perform the substantial and material duties of your occupation the second one is that what your occupation is and what you're doing other words you can't make that allegation and then when asked for proof saying well i don't have an appointment book that establishes it or i can provide documentation to you to show that i'm not doing these things  secondly it's also important during the underlying litigation where i was counsel dr schwartz with sanctions by magistrate jeffrey johnson because dr schwartz and his wife actually shredded calendars during the pendency of the underlying litigation apologize i don't have it there was a ruling by now just straight jeffrey johnson regarding that issue and i wasn't aware it was coming up this morning i thought but it was during the pendency of the litigation this was a case where there wasn't one interact authority that was responded to by the defense without the need for a joint spirit and a motion before the court and at one of those hearings one of the bases back to schwartz continued to say i have no records i have nothing and then his attorney  hockey's of the calendar and magistrate johnson said where's the original and it turned out that dr schwartz and his wife had shredded it and they were sanctioned for that next point when you're dealing with the situation mr smith portrays d victim here this poor that you did searching to see fifteen thousand eight hundred dollars a month tax free month after month while the equitable sitting back in new york attempted to evaluate his claim and find out what his occupation of an insurance company having an obligation to hire investigators the minute a claim is presented they rely upon what is provided by their insurer they rely upon information provided by the insurance treatment providers or doctors and documents which contain information such as one where cervical path ology was listed and he testified at trial i never examined dr schwartz for this so that he wasn't sure if he even was provided with blank forms by d what his job duties were and how much expert testimony he was doing that's tempe equitable on a year long investigation acquiring and calling depositions from around the country suddenly they came up with the information dr schwartz has another off occupation that's never been listed we've never heard about before that was when the debt relief action was trusting that the occupation of going to the hospital and cutting on people  i wouldn't believe there would be any surgeon who would have a patient come to a surgical center and have surgery without having diagnostics and without having whatever test run what i'm saying is the medical legal work which is separate forty two depositions were right into the record that were both prior to that time as well as after that time most of them were after and in fact of curiosity and related to judge kleinfeld statements about the court finding d when asked by the judge that he returned the next day to continue testimony so he could not because he had a two level cervical fusion to perform the next day this is after he had been unclaimed for approximately eight years  occupation is at the time you go on playing is this occupation at the time when tom claimed was as an orthopedic surgeon by title that someone who does not perform surgery but does a million dollars and that was my question i my question r disability he could continue to do want a week on that basis he would not be covered you see the distinction in this case is dr schwartz did not purchase a policy that provided residual benefits or partial benefits so we have to keep in mind the standard that needed to be reached trial was only to demonstrate that dr schwartz was capable of performing one surgery per week after the alleged disability i want to make sure i understand something that you said a moment ago hard hard to remember what i want to ask you if you start talking about something else first now was he under oath when he said to the judge i grew forming  just tell you this it was on the first or second day of trial when all forty two depositions there were excerpts from each and i stood up it took approximately two hours and i read the title the state it came from the case numbers and read the equitable was after losing the case i think one picture is worth a thousand words and when someone says i can't do something i can't do something you put film on of someone doing it it's compelling evidence i think the evidence supporting the equitable also  checked into court and judge lewis courtroom and the underlying case there was a brief period of time he was in pro per and as a courtesy to him because he didn't know the systems i walked over introduced myself and said if you give me your business car him fifteen thousand eight hundred dollars a month year after year final note i want to make on our our police and our appeal regarding the determination on the issue of about how long the says you have to provide written proof so what we're talking about is someone who's filing an action to be covered under the policy the equitable would not file an action to recover under its policies it's insurance work so under those circumstances i don't believe that there was any statutory bar and certainly in a circumstance where someone has misrepresented year after year and have the benefit we can hardly portray this man as a victim i just i i was wondering where  at the case that ultimately went to trial in front of judge fees but it is you know the standard in the cases that have been brought up by the plaintiffs in this case this romain first issue your case talks about a situation where the quote necessary facts were fully developed and quote that's not the case in this in this particular case and if you honestly look at the it's you'll actually see there were several reservation of rights letters i will admit they were not consistent and they her disability insurance insurers are a risk of acutely aware of moral hazard and that's why they have things in the applications that say you have to give  your tax returns to show how much you made you have to sign undergrowth saw something saying what other disability policies you purchased so that the lonely so you disability insurance for a fraction of your income in order to reduce the moral hazard but there's always a lot of moral hazard and i would think that particularly with this can't be a submission is dr schwartz made the insurance company would start paying him so that there they don't get hit with but they would also look into his claim and it seems like they had enough time before it limitations for him to look into his claim and fish or cut bait on the early years of payments so someone who was perpetrating a fraud on an insurance company and getting away with it because the insurance company during all those times your honor was threatened by various counsel for dr schwartz and will get away with a lot of stuff  hundred ninety nine and judge liz reasoning was that this legal action section provided this three year period and the last two project release was filed three years later council's opening remarks i think are outside the scope of this appeal and i would ask you to disregard them i'm feeling completely sandbag the briefs filed by equitable on the issue with counsel started with what was dr schwartz doing before his injury never once refers to any of those depositions statements that she cited never once refers to his alleged statement to a judge that he had to get back for a service cervical surgery i had was in no way aware that they were defending this case on that basis and if least a part of the very brief on this issue was that he was lying when he said he couldn't perform surgery right that interesting and what what what counsel just said as i heard it was he was making a million dollars a year doing medical legal and then she said and after his injury he was doing surgery and i'm saying if you look at page eight hundred fourteen where i would have been notified that that was a claim that they were making that he had been going around lying  about his surgeries and doing so to other courts and in depositions i would have been alerted to respond to that the response that i'm aware of generally is the doctor was advertising himself as a competent orthopedic surgeon in order to you i don't think  nine this to the end that could have been an issue it was not tried on that basis this case was tried on the issue of was he doing surgery before he was disabled for the injury and and is he disabled now so that almost all that back and forth and whatever he said from ninety four to ninety nine which councils now many many minutes trying to pollute the atmosphere here telling you all about was not the issue i trial it wasn't resolved by the judge in his findings of fact and i wasn't alerted to it and i don't think you should spend any time work worrying about that they they they they define the boundary lines of their defense in this document and it's not in there pointed out to that page eight fourteen or whatever it was in the judgment on polluted hospital records that have errors on their face which have no foundation nobody could testify to how they were created they are contradicted by the surgical nurse at midway who said we'd give block time to dr swartz and the only way you get block time which means they give them a half a day every week whether he has a patient signed up or not because they know he's a high volume producer and every bringing business to the hospital that's completely undermines their case and we believe that those computer records to shreds he cited three cases why they should not be admitted and are not substantial evidence and without those the evidence is hundred page seven ninety five the first conclusion of law made by judge fees was quote at the time defendant went on claim for total disability in one nine hundred ninety three surgery was not a substantial and material duty of  performing surgery let's say and april two thousand and eight we still have to relate back to what dr schwartz was doing and his occupation and one nine hundred ninety three and immediately before that in order to determine if he's eligible for