[00:00:03] Speaker 02:
Thank you, Your Honors.

[00:00:04] Speaker 02:
Good morning.

[00:00:06] Speaker 02:
Peter Bohan on behalf of Appellant Jacqueline Roeder and my law partner Anthony Bohan is here with me as well.

[00:00:15] Speaker 02:
Your Honors, I will attempt to summarize four main points where the District Court erred in this case.

[00:00:24] Speaker 02:
First, the District Court committed clear error in making the conclusion that neck pain in the look-back period

[00:00:32] Speaker 02:
was caused by a degenerative disc disease cervical spine condition, which was diagnosed in the post-coverage period.

[00:00:41] Speaker 02:
The reason that the court committed error in making this determination is because of how the court went about to make its inferences.

[00:00:55] Speaker 02:
The court pointed to the only record in the look-back period, which was the urgent care record.

[00:01:05] Speaker 02:
And the court indicated that in that record, because there was a slash mark between the notation that said sinus infection, wants IV, slash mark, neck pain, the court

[00:01:24] Speaker 02:
Now, Ms.

[00:01:25] Speaker 02:
Roeder presented to the urgent care in the look-back period.

[00:01:29] Speaker 02:
That's the only medical document within the look-back period.

[00:01:34] Speaker 02:
And the court essentially found that the slash mark indicated two separate medical issues.

[00:01:46] Speaker 02:
No other medical provider made any comment with respect to what the slash mark indicated.

[00:01:53] Speaker 02:
you know, something tantamount to causation or a link between the neck pain in the look-back period and the later diagnosed condition.

[00:02:04] Speaker 02:
Therefore, it was speculative by the judge in making that determination.

[00:02:12] Speaker 02:
The existence of

[00:02:17] Speaker 02:
an incipient condition is not alone to make the determination that there is a link or causation between a later diagnosed condition and the look back period symptoms.

[00:02:36] Speaker 02:
Additionally, the district court made the comment that the pre-coverage treatment in the look-back period, the trigger point injection for this nonspecific symptom of neck pain, was the same as the post-coverage treatment, but it was not the same.

[00:02:56] Speaker 02:
In the post-coverage period, Ms.

[00:02:59] Speaker 02:
Roeder had chiropractic treatment.

[00:03:01] Speaker 02:
She had medications that were prescribed.

[00:03:04] Speaker 02:
She had acupuncture, physical therapy, and this was not a correct determination.

[00:03:12] Speaker 01:
Second, Your Honors, what do we make of the comment, and I thought I had it here, but by one of the treating physicians, I think it was in March of 2020, where they stated she apparently had, or she referenced earlier treatments with cortisone shots as having provided relief and increased net mobility.

[00:03:33] Speaker 01:
That would indicate that she had been having some ongoing treatment for some period of time.

[00:03:40] Speaker 02:
What is the specific treating source?

[00:03:43] Speaker 01:
I'll have to look at the specific record.

[00:03:44] Speaker 01:
I don't have it right in front of me at this point.

[00:03:46] Speaker 01:
But there was some reference to prior cortisone treatments.

[00:03:50] Speaker 02:
With respect to comments that the district court mentioned that she had been having these symptoms on and off for some period of time,

[00:04:01] Speaker 02:
It's important that none of those references that the court cited refer to the look-back period specifically, and therefore it's speculative as to what on and off for some period of time really meant.

[00:04:18] Speaker 02:
And further on that point, the diagnosis of the degenerative disc disease cervical condition happened in May 28th.

[00:04:30] Speaker 02:
Dr. Safman, 3ER154, made the diagnosis of the condition at that point.

[00:04:38] Speaker 02:
And there was a comment by Dr. Rahavi on a May 21, 2020, television, which was already four months beyond the look-back period.

[00:04:53] Speaker 02:
where there was a comment that the condition had been worsening from March or April of 2020.

[00:05:04] Speaker 02:
At this point, there is a diagnostic procedure that has occurred.

[00:05:08] Speaker 02:
There's a CT scan that indicated severe degenerative disc disease.

[00:05:13] Speaker 02:
And so there's objective findings at this point.

[00:05:17] Speaker 02:
The condition essentially manifests at this point.

[00:05:20] Speaker 02:
And so again, the more logical or reasonable inference as to the off and on period during which he was having symptoms is arguably more appropriately

[00:05:40] Speaker 02:
between late March, April of 2020 up to the point of diagnosis and later to the confirmed diagnosis in September by Dr. Vyas, 3ER 171.

[00:06:01] Speaker 02:
The court further aired in its interpretation of the case law that it cited as a plethora of case law from out of circuit, which the court relied on

[00:06:19] Speaker 02:
with respect to the treatment for claws and The cases that the court cited in the cloud mitzal a coco pictures Sanders those cases indicated that knowledge or suspicion of the condition in the look-back period was Required in order to trigger the pre-existing condition exclusion

[00:06:44] Speaker 02:
And the court, however, refused to extend that rationale to the symptoms clause, the next clause in the pre-existing condition exclusion.

[00:06:59] Speaker 02:
And courts in ERISA and longstanding insurance law

[00:07:05] Speaker 02:
are under the duty to interpret provisions narrowly and consistently among provisions.

[00:07:13] Speaker 02:
And therefore, the fact that the court did not extend the rationale that knowledge or suspicion of the condition in the look-back period is needed to

[00:07:28] Speaker 02:
in order to trigger the pre-existing condition exclusion.

[00:07:32] Speaker 02:
That was the court erred in not doing so, because logically, that rationale should extend to the symptoms clause provision.

[00:07:46] Speaker 02:
The courts discussed, in fact, and mentioned

[00:07:53] Speaker 02:
symptoms in the context of pre-existing condition exclusions.

[00:07:58] Speaker 02:
And importantly, the McLeod case makes the comment that the term symptom is only a meaningful term in relation to something else.

[00:08:13] Speaker 02:
So the obvious question that is raised is symptoms of what?

[00:08:22] Speaker 02:
The court did not, interestingly, the court cited the Sanders case, the Ninth Circuit District Court case from Oregon, the Sanders case in the context of analyzing the treatment for clause, but omitted discussing it in the symptoms clause.

[00:08:42] Speaker 02:
But Sanders stated that nonspecific symptoms during the examination of a patient

[00:08:50] Speaker 02:
from an undiagnosed condition are not sufficient to trigger the pre-existing condition exclusion.

[00:08:58] Speaker 02:
Third, Your Honors, the policy language in the pre-existing condition exclusion is arguably ambiguous by its terms and should be strictly construed against guardian and in favor of rotor pursuant to contra proforentum, doctrine of contra proforentum.

[00:09:16] Speaker 02:
The term suffered from is

[00:09:19] Speaker 02:
arguably ambiguous in the sense that the district court appears to have placed a high emphasis on existence of the condition.

[00:09:32] Speaker 02:
And during trial, the court asked, well, is the condition existed?

[00:09:38] Speaker 02:
Did it not?

[00:09:39] Speaker 02:
And yes, I think that's a reasonable.

[00:09:42] Speaker 02:
We argue that's a reasonable inference.

[00:09:44] Speaker 04:
Counsel, as you noted, this decision was made after a bench trial.

[00:09:50] Speaker 04:
So all of this evidence was presented to the court.

[00:09:53] Speaker 04:
And the court made this determination.

[00:09:55] Speaker 04:
What's our standard of review?

[00:09:57] Speaker 02:
Your Honor, with respect to

[00:10:02] Speaker 04:
with respect to the court's determination that... Whether or not there was a pre-existing condition, what's our standard of review of that determination by the district court?

[00:10:12] Speaker 02:
I think the court can apply a clear error standard with respect to the court's determination of factual findings, obviously.

[00:10:20] Speaker 02:
And the question of the determination that degenerative disease caused neck pain in the look-back period is arguably a finding of fact subject to clear error review.

[00:10:37] Speaker 02:
However, the reasonableness of the court's inferences is potentially something that the court can review

[00:10:48] Speaker 02:
on the court's own standard.

[00:10:52] Speaker 04:
What do you mean?

[00:10:52] Speaker 04:
What does that mean, that we review it by the court's own standard?

[00:10:56] Speaker 04:
What does that mean?

[00:10:58] Speaker 02:
The court can review it whether or not it can review it de novo.

[00:11:03] Speaker 04:
So what case supports the proposition that we review the inferences that were drawn by the court de novo?

[00:11:11] Speaker 04:
What case says that?

[00:11:14] Speaker 02:
Your Honor, again, I'm

[00:11:19] Speaker 04:
this is potentially a mixed question of, uh, of law and fact with respect to the, um, I think the... What case says that the review of inferences that are drawn by a court during a trial is a mixed question of law and fact?

[00:11:41] Speaker 02:
Well, again, Your Honor, I think that this case involves errors that are both factual errors and legal errors.

[00:11:54] Speaker 01:
Let me ask you this.

[00:11:56] Speaker 01:
As I understand your argument, is that

[00:12:00] Speaker 01:
your client had no notice, nor did any of her treating physicians have any notice of a potential degenerative spine condition or neck condition prior to March, April timeframe 2020, right?

[00:12:16] Speaker 01:
Yes, sir.

[00:12:17] Speaker 01:
What do her treating records show for the period prior to the look back period?

[00:12:22] Speaker 01:
Is there anything in those records to show that she had ever been treated for back or neck pain?

[00:12:29] Speaker 02:
Well, Your Honor, the record indicated, in this case, the look back period is the determinative.

[00:12:39] Speaker 01:
But you're saying there's no suspicion of any problem.

[00:12:43] Speaker 01:
And I want to know, was she ever treated previously?

[00:12:46] Speaker 01:
To me, that would be very relevant on whether or not the treatment during the look-back period related to a preexisting condition.

[00:12:53] Speaker 02:
She was not treated specifically for degenerative disc disease, nor was there any indication that any treating source suspected that there was degenerative disc disease.

[00:13:03] Speaker 02:
And that's in her records from before the look-back period.

[00:13:06] Speaker 02:
Before the look back period, yes, Your Honor.

[00:13:09] Speaker 02:
There's no indication that she was treated for degenerative disease or that some treating provider had a suspicion that that's what she had.

[00:13:22] Speaker 02:
Your Honors, I'm running out of time.

[00:13:23] Speaker 02:
Finally, I want to bring to the Court's attention the fact of the Collier case that found error

[00:13:34] Speaker 02:
in the Ninth Circuit case of Collier, that new rationales that were raised by the court that were not raised in the admin period constituted error.

[00:13:45] Speaker 02:
In this case, the denial letter from Guardian indicated that symptoms of neck pain for which Rotor received treatment during the look-back period resulted in the subsequent diagnosis of degenerative disc disease.

[00:13:57] Speaker 02:
This is 3ER 154.

[00:14:00] Speaker 02:
The court and guardian for the first time in litigation raised the issue of symptoms clause as a basis for exclusion.

[00:14:14] Speaker 02:
Collier cited GLISTA, the case of GLISTA, which has very similar facts to the policy language in this case and the communications from the insurance company to the insured.

[00:14:30] Speaker 02:
Specifically, in that case, the court found that it was reversible error for the court to rely on the symptoms clause

[00:14:42] Speaker 02:
as a basis for exclusion when the communications from the insurance company did not specifically indicate or communicate that they were relying on the symptoms clause in order to deny the claim.

[00:14:58] Speaker 02:
Thank you, Your Honor.

[00:14:59] Speaker 04:
Thank you, Counsel.

[00:15:01] Speaker 04:
You've used your time.

[00:15:02] Speaker 04:
We'll give you a minute for rebuttal.

[00:15:04] Speaker 04:
Okay, thank you.

[00:15:15] Speaker 00:
Thank you Judge Rawlinson and may it please the court.

[00:15:18] Speaker 00:
My name is Caleb Wallenek and I'm here on behalf of Guardian and The Plan.

[00:15:22] Speaker 00:
This appeal revolves around factual findings that this court reviews only for clear error.

[00:15:28] Speaker 00:
The key factual findings are that Ms.

[00:15:29] Speaker 00:
Roeder's degenerative spinal condition caused neck pain during the look-back period and that Ms.

[00:15:34] Speaker 00:
Roeder, as a prudent person would, received medical treatment as a result.

[00:15:39] Speaker 00:
Those findings are correct and they certainly aren't clearly erroneous.

[00:15:43] Speaker 00:
And they trigger both the treatment clause and the symptoms clause of the pre-existing condition exclusion.

[00:15:49] Speaker 03:
What is the evidence in the record that demonstrates that there's a causal connection between the neck pain and then the later diagnosed degenerative cervical spine condition?

[00:15:59] Speaker 03:
Is it just primarily that slash mark in Dr. George's notes or what?

[00:16:05] Speaker 03:
What's the causal evidence?

[00:16:07] Speaker 00:
It is not just a slash mark, Your Honor.

[00:16:09] Speaker 00:
That treatment record from January of 2020 from Irvine Urgent Care is very helpful and significant, but there are at least four other aspects of the record that I would point you to.

[00:16:20] Speaker 00:
One is the history of neck pain.

[00:16:21] Speaker 00:
I believe, Judge Malloy, you were getting to this earlier when you talked about Dr. Shocker's April 2020 notes, which said that

[00:16:29] Speaker 00:
Ms.

[00:16:30] Speaker 00:
Roeder had been having difficulty moving her neck without cortisone injections, but that due to the pandemic, she had been having trouble finding those injections, and that a herbal remedy was not providing the same level of relief.

[00:16:41] Speaker 01:
Was there any follow-up made as to what was meant by those cortisone injections?

[00:16:47] Speaker 00:
I don't believe, for Dr. Shocker, that was a follow-up.

[00:16:51] Speaker 00:
But then there's also Dr. Rahavi's statement from the May 2020 television.

[00:16:56] Speaker 00:
where he said that plaintiff had been bothered by this problem, meaning neck pain, off and on for an extended period before March of 2020.

[00:17:05] Speaker 00:
A reasonable interpretation of that is that it would include the period of January 2020, which is in the look-back period.

[00:17:13] Speaker 00:
There's also the fact that this is a chronic condition.

[00:17:16] Speaker 00:
Dr. Garrett said that the changes in Ms.

[00:17:19] Speaker 00:
Roeder's spine occurred gradually over the course of several years.

[00:17:22] Speaker 00:
Dr. Rojave agreed that this was a chronic and degenerative condition

[00:17:26] Speaker 00:
And on page seven of the further excerpts of record, my friend told the district court they didn't contest that this condition existed in January of 2020.

[00:17:35] Speaker 00:
The question is about when it started causing symptoms.

[00:17:40] Speaker 00:
Ms.

[00:17:40] Speaker 00:
Roeder says that it's causing symptoms now, and that it caused symptoms in March and April of 2020.

[00:17:45] Speaker 00:
The question is just about those two months before, whether it was also causing neck pain in that time.

[00:17:52] Speaker 00:
And the treatment, while it was

[00:17:55] Speaker 00:
There were additional forms of treatment after the neck pain increased.

[00:18:00] Speaker 00:
There were trigger point injections before and after the diagnosis.

[00:18:04] Speaker 00:
And the trigger point injection on January 2020 was not connected to the sinus pain or to the sinus infection graph.

[00:18:12] Speaker 00:
How do we know that?

[00:18:14] Speaker 00:
Well, so reading the treatment record from Dr. George, she complained of sinus infections, wants IV, and then there is that slash neck pain.

[00:18:26] Speaker 00:
That reasonable interpretation of that is that those are two different complaints.

[00:18:30] Speaker 00:
And then the bottom half of the page shows that she received IV antibiotics for the sinus infection, and then a trigger point injection and electrical stimulation to the cervical spine.

[00:18:41] Speaker 00:
for the neck pain.

[00:18:44] Speaker 03:
It doesn't say IV sinus, does it, in trigger?

[00:18:47] Speaker 03:
I mean, I'm looking at it.

[00:18:50] Speaker 00:
It doesn't say that.

[00:18:51] Speaker 00:
No, and I didn't mean to suggest that it wrote for sinus infection, but the IV antibiotics, that would have been what you would treat the sinus infection with.

[00:19:00] Speaker 00:
And then the trigger point injection, that's a form of treatment for neck pain, and it says either C5 or CS,

[00:19:07] Speaker 00:
I mean, either C5 vertebrae or just the cervical spine generally, which is the area that Ms.

[00:19:13] Speaker 00:
Roeder has the degenerative spinal condition.

[00:19:17] Speaker 00:
And the trigger point injection would involve sticking a needle into the back of Ms.

[00:19:19] Speaker 00:
Roeder's neck and injecting it with either, there are several different things you can inject and the record doesn't show, but oftentimes it's platocaine or cortisone steroid in order to relieve that pain.

[00:19:31] Speaker 00:
That's a lot more involved than just recommending an aspirin or relying on the ID antibiotics to resolve the neck pain at the time and a reasonable interpretation of all of these factors together.

[00:19:44] Speaker 00:
And on clear error review, the court takes the record as a whole and asks whether

[00:19:50] Speaker 00:
this is a plausible interpretation.

[00:19:52] Speaker 00:
The court has to have a firm and definite conviction that the district court erred in order to say that it was clear error.

[00:19:59] Speaker 00:
And if there are multiple ways to interpret the record and they're both permissible, then it's not clear error to choose among those options.

[00:20:11] Speaker 00:
And looking at the record as a whole,

[00:20:14] Speaker 00:
The district court did not clearly err in saying that the degenerative spinal condition, which again, Ms.

[00:20:19] Speaker 00:
Roeder says, caused pain in the March and April period.

[00:20:25] Speaker 00:
It's a reasonable interpretation that it also caused neck pain during the look back period.

[00:20:31] Speaker 01:
Is there any question in the record that a trigger point injection means inserting

[00:20:41] Speaker 01:
needle into the cervical spine and then injecting lidocaine or cortisone or some type of some type of anesthesia.

[00:20:50] Speaker 00:
I don't know if in the record there's that particular definition but that is what a trigger point injection is just in terms of general

[00:20:58] Speaker 00:
What's that term means?

[00:21:00] Speaker 00:
That is, you can inject, you can do a trigger point injection for multiple parts of the body, but that is what a trigger point injection is.

[00:21:09] Speaker 00:
It involves, it could be dry needling, but it is an injection.

[00:21:14] Speaker 01:
What do you mean by dry needling?

[00:21:15] Speaker 00:
Sometimes doctors, it's almost like a form of acupuncture.

[00:21:19] Speaker 00:
You stick the needle in, there's nothing injected in, but you still provide that level of relief.

[00:21:26] Speaker 00:
And all of this, it's a reasonable interpretation of the record as a whole to say that there was neck pain in the look-back period and that it was caused by the degenerative spinal condition that had been developing over the course of several years.

[00:21:39] Speaker 00:
It was a chronic degenerative condition.

[00:21:43] Speaker 00:
And that triggered the symptoms clause, which is a prudent person test.

[00:21:49] Speaker 00:
It looks at symptoms as to whether a prudent person would have sought treatment for the symptoms and what the symptoms were caused by the condition that would later become disabling.

[00:22:01] Speaker 00:
It doesn't require any actual diagnosis or treatment.

[00:22:04] Speaker 00:
It doesn't even require a diagnostic process.

[00:22:07] Speaker 00:
It can apply when doctors miss a diagnosis.

[00:22:10] Speaker 00:
It can apply when the insurer doesn't seek medical attention at all.

[00:22:15] Speaker 00:
Now, my friend wants to read in a knowledge or intent requirement into that and looks at cases about treatment clauses, what it means to treat someone for something.

[00:22:27] Speaker 00:
But the language in the symptoms clause here is different, and that difference matters.

[00:22:32] Speaker 00:
The question is whether

[00:22:35] Speaker 00:
there was a causation of symptoms for which a prudent person would usually seek treatment.

[00:22:40] Speaker 00:
There's no, again, no requirement of a diagnosis, and there's no requirement of actual medical treatment.

[00:22:47] Speaker 00:
And that reflects how medicine works, is that doctors often treat symptoms without a diagnosis, without even looking for a diagnosis.

[00:22:58] Speaker 00:
It encompasses the situation where someone doesn't go to the doctor at all and is either willfully blind to their own symptoms or simply holds off on treatment until they get disability coverage.

[00:23:12] Speaker 00:
And the district court was right not to read in a knowledge or intent requirement.

[00:23:20] Speaker 00:
There is no textual basis in the symptoms clause for requiring some level of awareness of a diagnosis.

[00:23:29] Speaker 00:
It would be hard to know what level of awareness would be enough, particularly because the

[00:23:36] Speaker 00:
second paragraph of that first bullet says that it applies whether there's a diagnosis, meaning whether or not there's a diagnosis, which is consistent with the way that the first paragraph of the first bullet works, which is looking at diagnosis in particular.

[00:23:51] Speaker 00:
The second paragraph looks at the condition.

[00:23:54] Speaker 00:
It doesn't look at the diagnosis, including times where there are no diagnosis.

[00:24:03] Speaker 01:
You agree that there's nothing in her medical records prior to the look-back period to show that she had received any treatment for neck or back pain or that there was any type of suspicion or diagnosis of a cervical problem?

[00:24:18] Speaker 00:
Your Honor, I don't know if we acquired the medical records before the look-back period.

[00:24:24] Speaker 00:
The because they're not they're not relevant to the inquiry.

[00:24:27] Speaker 00:
We are limited to the looking at that three month period from November to January when they brought relevant.

[00:24:33] Speaker 01:
In fact, she had actually been diagnosed with the condition.

[00:24:36] Speaker 00:
Uh, so we don't contest here that she wasn't diagnosed with the degenerative spinal condition.

[00:24:42] Speaker 01:
No, I mean, but what if she had been diagnosed and had been treated for this condition for a year prior to the look-back period?

[00:24:49] Speaker 01:
Wouldn't that add some credibility to the argument that the trigger point injection was for a previously diagnosed condition?

[00:24:58] Speaker 00:
Yes, Your Honor.

[00:25:00] Speaker 00:
But here we see the diagnosis in the subsequent period, and so we didn't go looking for a diagnosis because it was appeared from the record that there wasn't one to find in that look back period, or before the look back period, rather.

[00:25:16] Speaker 00:
Now, as far as the term suffered from, that also doesn't

[00:25:20] Speaker 00:
incorporate an intent or knowledge requirement to suffer from a condition simply means to have it and that it's an adverse condition there's nothing you can suffer from a condition without knowing what it is and the rest of the paragraph does work in showing that it's not a latent condition there needs to be either treatment or symptoms from that condition this is

[00:25:48] Speaker 00:
Now, as far as the argument that we've made, a new rationale on appeal or in litigation, that's not correct, but it also is waived in the district court in the opening and responsive trial briefs.

[00:26:04] Speaker 00:
uh... miss robert not argue that we had asserted a new rationale in litigation even in the opposing trial brief the argument about shifting rationales was that between the first and second appeal denials that the the language had changed but the argument was not that we had asserted a new rationale for the first time in litigation and the district court

[00:26:28] Speaker 00:
looked at this symptoms clause as a whole, as Guardian did in its letters.

[00:26:32] Speaker 00:
We quoted the entire pre-existing condition exclusion.

[00:26:37] Speaker 00:
We've consistently maintained that Ms.

[00:26:39] Speaker 00:
Froeder had the degenerative spinal condition, that it caused symptoms, and that those symptoms led to treatment.

[00:26:48] Speaker 00:
it was that the letters are not, they don't need to be a legal brief and explain all of the legal arguments about why one clause is interpreted one way or another.

[00:26:59] Speaker 00:
We relied on the clause as a whole, the exclusion as a whole, but the symptoms clause and the treatment clause.

[00:27:08] Speaker 00:
While I've got three minutes left, let's say a few words about the treatment clause.

[00:27:15] Speaker 00:
This court doesn't need to reach it if it affirms on the symptoms clause, but it is an independent alternative grounds for affirming because the language in this treatment clause is different than the language in cases like McLeod and Sanders.

[00:27:31] Speaker 00:
Here, the policy expressly says that the treatment clause applies whether there is a diagnosis, including situations where there is no diagnosis.

[00:27:41] Speaker 00:
It keeps the focus on the health of the insured, not on the skill or intent of the physician, and includes situations where there is no diagnosis.

[00:27:52] Speaker 00:
And this accords with how the plain language of the clause works, and that people can receive treatment for a condition

[00:27:58] Speaker 00:
without having a diagnosis of that condition.

[00:28:02] Speaker 00:
The word for is just a preposition that gives some structure to the sentence.

[00:28:06] Speaker 00:
It shows that there's either a relation or suiting the needs of that the treatment assume the needs of or relevant to the condition.

[00:28:16] Speaker 00:
It doesn't read in a requirement that there be a formal diagnosis or awareness of a formal diagnosis of a certain level of suspicion of a formal diagnosis.

[00:28:25] Speaker 00:
It's enough that the doctor, the physician provide treatment for that condition.

[00:28:30] Speaker 00:
And in looking at all of this, the court first gives the words they're plain and ordinary meaning, doesn't strain to find ambiguity, looks at the policy as a whole and only deploys

[00:28:46] Speaker 00:
contraproferendum if after using all of the tools of contract interpretation that there are two conflicting but reasonable meanings.

[00:28:55] Speaker 00:
Here, the plain language of the clause shows that there is no intent or suspicion requirement.

[00:29:04] Speaker 00:
I see that my time is almost expired.

[00:29:06] Speaker 00:
If there's any potential other questions, I would like to say just a moment, say a few words about the argument for a remand.

[00:29:14] Speaker 00:
If this Court were to disagree with everything I've said, the correct approach would be to remand this to the District Court and let Guardian have the chance to look at Ms.

[00:29:24] Speaker 00:
Roeder's condition to see whether she is in fact disabled.

[00:29:27] Speaker 00:
We've consistently maintained that that would be the next step if the pre-existing condition exclusion were not to apply.

[00:29:34] Speaker 00:
And in fact, that's what happened in Collier, where this court reversed, sent it back down to the district court.

[00:29:40] Speaker 00:
And then a few months ago, the district court sent it back down to the plan administrator for further proceedings.

[00:29:47] Speaker 00:
Thank you for your time.

[00:29:48] Speaker 00:
This court should affirm.

[00:29:50] Speaker 04:
Thank you, counsel.

[00:29:52] Speaker 04:
Let's have one minute for rebuttal.

[00:29:58] Speaker 02:
Thank you, Your Honors.

[00:29:59] Speaker 02:
I need a second trip.

[00:30:08] Speaker 02:
Pardon my mess.

[00:30:13] Speaker 02:
Your Honors, with respect to Judge Robinson's question regarding standard of review, in the reply brief, we talk about, at page 25 of the reply brief,

[00:30:28] Speaker 02:
I'm sorry, page 34 of the reply brief, that legal conclusions are reviewed de novo.

[00:30:35] Speaker 02:
Rule 52 does not apply to conclusions of law, citing Burke versus retirement plan for pilots.

[00:30:46] Speaker 04:
The council, my consideration is that this was a trial.

[00:30:52] Speaker 04:
The judge had the opportunity to review all of this evidence, hear the arguments of council.

[00:30:58] Speaker 04:
and then make a decision based on the medical records and all of the inferences that can be drawn from those.

[00:31:04] Speaker 04:
And we review that for clear error.

[00:31:07] Speaker 04:
And I have some difficulty saying that based on the evidence that's in the record, the district court clearly erred in its determination.

[00:31:17] Speaker 02:
Yes, Your Honor.

[00:31:18] Speaker 02:
We do understand that, however, we would argue to the court that some of these findings by the district court do involve mixed fact law questions.

[00:31:28] Speaker 02:
And those, if the court considers to be predominantly legal questions, could be reviewed under a de novo standard.

[00:31:38] Speaker 04:
Do you think that the determination whether or not there was a pre-existing condition is

[00:31:44] Speaker 02:
uh... legal question or factual question because the court would be in the district court would have been interpreting the pre-existing condition clause that would be a legal i would argue that would be a legal determination the court is is that analyzing the legal question there whether the legal question should be triggered uh... should the pre-existing condition clause

[00:32:08] Speaker 02:
be triggered to exclude, to deny benefits.

[00:32:14] Speaker 04:
But before making that legal conclusion, the court would first have to make a factual determination whether or not there was a pre-existing condition, correct?

[00:32:27] Speaker 02:
Well, with respect to, I would say yes and no, with respect to, again, certain issues such as causation, causation would be a factual determination.

[00:32:39] Speaker 02:
However, in making inferences and whether or not the inferences were reasonable,

[00:32:46] Speaker 02:
inferences is potentially a question that is a legal question.

[00:32:55] Speaker 04:
You said that before and I ask you for a case that supports the proposition that inferences drawn by a court when evaluating evidence is a legal issue.

[00:33:10] Speaker 04:
And you didn't give me a case that says that.

[00:33:14] Speaker 02:
Well, again, we're saying that inferences, a court can make reasonable inferences, but not unreasonable inferences.

[00:33:22] Speaker 02:
And so this court can make the determination.

[00:33:25] Speaker 04:
Then that would be clear error.

[00:33:27] Speaker 04:
If the inferences that the court drew from the evidence presented were not reasonable, then that would be clear error.

[00:33:38] Speaker 02:
Um, your honor, if I may address or push back on one or two points, if I please.

[00:33:46] Speaker 02:
Um, your honor, uh, council mentioned that, uh, the Collier case again is a case where, uh, that was decided in 2022.

[00:33:59] Speaker 02:
Uh, I believe a week that was handed down a week before this court, the district court issued an opinion.

[00:34:08] Speaker 02:
And the court did cite Collier.

[00:34:11] Speaker 02:
However, the court did not cite Collier with respect to whether or not a new rationale was being determined or brought forth by the district court.

[00:34:27] Speaker 02:
It did not discuss that.

[00:34:30] Speaker 02:
And we think that Collier is an important case that would

[00:34:39] Speaker 02:
potentially find that the court committed error because the court considered new rationales that Guardian clearly did not consider.

[00:34:50] Speaker 04:
All right, counsel, thank you.

[00:34:51] Speaker 04:
You've exceeded your time.

[00:34:53] Speaker 04:
Thank you to both counsels for your helpful arguments.

[00:34:57] Speaker 04:
The case is argued is submitted for decision by the court.

[00:35:00] Speaker 04:
The final case on calendar for argument today is State of Montana.