no issue about the employer's right to cancel a long term disability policy what this is about is the failure to disclose the cancellation to the employees until several months after the event and until after my client was injured too badly to appear and couldn't get coverage and the reason why it's so important to recognize that this is a being brought under the state court now that your case is that i raised  forwarding the payments to the insurer it wasn't in a situation where the wrongdoing didn't even arise until the client into the policy was gone and it and when the wrongdoing arose out of a duty independent of the plans of its kind ever reason let me understand although obviously we don't have the state law cause of action in front of us which i think that's right but the police and preemption i have a duty to correct what i learned that the information i've given you true especially when i have superior knowledge as i did the cox recently gave her knowledge that there was a plan she would live to regret or meant by not getting another plan so well when you when you do it so if this trial going to be about whether it was a mistake or just a distraction is that what it would be about well i think it certainly yes i think it's likely to be they however did send the letter deliberately canceling the policy so i don't think we're going to get on the state as a matter of fact the court said that this is a district court two middle district the two alabama cases that i cited and then ninth circuit matthews case because what the alabama case is both held is that when the policy last they were looking at it in a different context of whether or not it was preempted by a recess and what they said is look the relief that you're seeking from the employer who left the policy last who didn't forward the payments is akin to the benefits  under the policy and then even the nastiest decision this court said look an order reinstating people into the plan is not eighteen would only be automatically titled in the title in this case because they're going to stipulation by the parties if your plan to reinstate them into their currently there isn't she can't get reinstated into old plan i don't know if there was a new plan or not where she could get reinstated or similarly a court could also question an order directing hispanic business to stand in the shoes of the insurer and process a client that sure sounds like money judgment well i don't think it would any more than the matthews things that it was a money judgment first of all on its face it's not a money judgment and secondly defense counsel a very good attorneys and i'm sure they can come up with something you know in terms of if they are just processing the claim that's not an automatic entitlement to money you know actually they could still find some way i suppose but then you have a look no argument for the moment would be that the defendant simply acts as an insurance company yes but they are just standing in the shoes for the purposes of this case were to agree with you that this is not going to go back to state court or if we were to agree with you some remedy is available i guess your client would have to show that she would have in fact has she been timely notified purchased some form of disability insurance if the action would proceed in state court yes i think that's what you would have had to show if the action against proceeding under think that would depend on whatever order ended up getting crafted in other words you know you're going to say if you're just going to stand in the shoes of the insurance company process it under the public you know as that policy directed  timely informed right now your honor because what i'm suggesting is that the insurance company that they're standing in the shoes of is the what is the original policy that they have issued and cancel but you start out from the families of the three had duty there is under section ten twenty four b one b which is where an income replacement benefit plan falls it's not part of a group health plan there is no requirement to get notification modification or changes to the case here it was in the plane and that there was a right to recover from the heart of that third party recovery nonetheless we let you know that that wasn't covered by a recession was instead covered under state law you no longer want to i'm sorry only one portion of the plan got canceled that's not a cancellation of the overall plan it was a cancellation of one particular vote of the specifically this long term disability policy and what  risk there has been this issue has been raised only after that judgment was taken and there's been no they certainly if that's the argument have the power to dismiss the case of any time except that we can't let  yeah you know i don't know what to do about it complained starts off with this under everything that maybe we just can't label and then you go through and see what she actually claims  the second point i wanted to make and just briefly this is a lot of discussion about whether or not there was active or intentional concealment for them to get for the proponents to get substantive relief they had to demonstrate in the words of blackout agree just conduct in the words of matthew's recent case from this court acted misinformation in the words of rocker i believe it was intentional concealment none of those issues are present here of the evidence the state of the record is there was an e mail exchange between the o of the company and that she financial officer asked what is this has anybody using it why do we continue to pay it and it got cancelled without the involvement of the h r manager and when she discovered it three months later she sent an email company wide letting that this case fits into mathews or brought her or this is simply a case of and in an inadvertent failure to notify the extent it is a violation of a risk it is merely a procedural violation which takes us into great  communication errors are a long term disability policy was cancelled inadvertently in july i think that it is vision was made deliberately to cancel it because nobody was used i think the decision was the cancellation occurred the cancellation was made by the c f o without further discussion with the c e o and human resource manager we are the e mail chain back and forth about what is this item of expense any mail goes back saying this is a long term disability and records that it is not rocker says it's proper notification and if that is the law that we may have committed a violation and waiting three months but again it's a procedural violation of notification it's not  package and while there were other benefits i think it's hard to large package the whole thing was canceled part of it was i don't know if it