[00:00:00] Speaker 05:
The final case for argument is 21-1750, 21-1750, Lanclos v. United States.

[00:00:08] Speaker 05:
Mr. Dahl, please proceed.

[00:00:10] Speaker 04:
Thank you.

[00:00:14] Speaker 04:
And may it please the court.

[00:00:16] Speaker 04:
And thank you, Your Honor, for allowing me to appear in a motion today.

[00:00:20] Speaker 04:
As you are aware, the court is aware, this case arises as a result

[00:00:27] Speaker 04:
of the insolvency of an annuity company, the Executive Life Insurance Company in New York.

[00:00:33] Speaker 04:
And this court has decided a number of cases and interpreted a number of different tort settlement agreements that had required interpretation because of the insolvency and the subsequent shortfall in annuity payments to various plaintiffs of those tort claims.

[00:01:00] Speaker 04:
We believe that there's really two rules, basic rules of contract interpretation, if they are applied.

[00:01:07] Speaker 04:
Now, in this particular case, by this panel, that it will be found that the government is liable for the shortfall to misland clause.

[00:01:18] Speaker 04:
The first is that the plain and ordinary terms of an agreement should be applied unless it is clear that

[00:01:27] Speaker 04:
There was an agreement between the parties to use something other than the plain, ordinary meaning of the term.

[00:01:35] Speaker 04:
The other is that there should be harmony among all the terms in a settlement agreement.

[00:01:42] Speaker 04:
And the court is required, when any term is accepted, to harmonize the terms.

[00:01:48] Speaker ?:
And as the court is aware, Ms.

[00:01:51] Speaker 04:
Lanclos was granted partial summary judgment

[00:01:56] Speaker 04:
by the Court of Federal Claims in 2017.

[00:02:00] Speaker 04:
And the government was found liable for the shortfall.

[00:02:04] Speaker 04:
But because of the Shaw case, which was before this court but had not been decided, the Court of Federal Claims granted

[00:02:17] Speaker 04:
an extension and reconsideration for the government.

[00:02:21] Speaker 03:
Mr. Dahl?

[00:02:22] Speaker 03:
Mr. Dahl?

[00:02:23] Speaker 03:
Mr. Dahl?

[00:02:25] Speaker 03:
Can you just point us to which provisions in the lengthless agreement that in your view are decisive in putting the government on the hook for the shortfalls and the annuity payments?

[00:02:39] Speaker 04:
Yes, thank you, Your Honor.

[00:02:42] Speaker ?:
The first is, and this follows,

[00:02:46] Speaker 04:
the Massey decision in 1999.

[00:02:50] Speaker 04:
But the first is that the monthly annuities payments are the payments issued.

[00:02:59] Speaker 04:
But it's the purchase of an annuity which will provide.

[00:03:03] Speaker 04:
And this court, in the Massey decision, found that will provide, or an equivalent of will provide, showed in May that that was

[00:03:14] Speaker ?:
That was mandatory language.

[00:03:16] Speaker 04:
And that mandatory language consents the United States and that the annuity company wasn't a part of the settlement, but just the United States and the tort settlers, that that was language that required the government to step in when the shortfall occurred.

[00:03:38] Speaker 04:
Another important aspect.

[00:03:43] Speaker 03:
Mr. Daw, before you go to the other provision you want to rely on, in cases like Nutt and Shaw, aren't there similar provisions than to the one you just quoted?

[00:03:57] Speaker 03:
For example, Shaw says,

[00:04:00] Speaker 03:
The purchase of annuities, which will provide certain future periodic payments, is set forth below.

[00:04:07] Speaker 03:
And then in NUT, it says, the United States of America agrees to purchase annuities, which will pay the following amounts.

[00:04:17] Speaker 03:
So I guess what I'm wondering is, aren't those provisions similar to the one you just pointed us to in the lengthless agreement, which says the purchase of an annuity, which will provide?

[00:04:29] Speaker 04:
They are.

[00:04:30] Speaker 04:
There's no doubt that they are.

[00:04:32] Speaker 04:
But when taken as a whole, when compared to Shaw and that agreement, when some agreement is taken as a whole, then I will focus on the differences between this settlement and those two settlements, and what makes that land important in this particular settlement.

[00:04:54] Speaker 04:
But you're correct that that's not the only, if that were the only,

[00:04:59] Speaker 04:
But I would still urge, when it's taken as a whole, that's an important aspect.

[00:05:08] Speaker 04:
The other is the guarantee language.

[00:05:11] Speaker 04:
And again, in this particular case, the term is, after the specific monthly installments are stated, all monthly payments are borrowed.

[00:05:22] Speaker 04:
And again, when it refers to the annuity monthly payments, it's clear that the annuity has not yet been purchased.

[00:05:29] Speaker 04:
And the annuity will provide certain monthly payment.

[00:05:34] Speaker 04:
But then it goes to the present tense in Aus.

[00:05:37] Speaker 04:
It says, all monthly payments are guaranteed for 30 years of the life of Jim for whichever is longer.

[00:05:44] Speaker 04:
And that language is what the Court of Federal Claims found in 2017.

[00:05:49] Speaker 04:
That change of tenses, along with just the ordinary claim term, guarantee,

[00:05:58] Speaker 04:
meant that, in fact, that was the ordinary sense of guaranteed, in the sense that the government was guaranteeing to pay if there was a shortfall or a default by the annuity company rather than the term of art.

[00:06:12] Speaker 00:
Counselor, this is Judge Rainer.

[00:06:14] Speaker 00:
So there's an argument being made that guaranteed is a term of art that applies to time schedules and timing.

[00:06:26] Speaker 00:
but that it cannot apply to monetary values as expressed through.

[00:06:30] Speaker 00:
Can you respond to that?

[00:06:33] Speaker 04:
Yes.

[00:06:33] Speaker 04:
Well, we don't think the term of orde should have been applied in this particular case by the court because of number of, you know, to harmonize the agreement.

[00:06:45] Speaker 04:
No protections were provided to the Langlois family, in fact, if there was a report in that agreement.

[00:06:55] Speaker 04:
When you harmonize that, it makes sense to use guarantee in the ordinary and common sense.

[00:07:03] Speaker 04:
And what guarantee means, they were comfortable, the Lancoste family and their attorney were comfortable with the fact that the government was going to step in and, in fact, pay those installments if they didn't get paid by the annuity.

[00:07:18] Speaker 04:
So that's the reason we don't think.

[00:07:22] Speaker 04:
And in fact, in the NET settlement,

[00:07:25] Speaker 04:
The nut distinguished Massey on the importance of the guaranteed language in Massey.

[00:07:32] Speaker 04:
So it is true of the original decision in Massey.

[00:07:36] Speaker 04:
The court relied on the mandatory Shelby page language.

[00:07:40] Speaker 04:
But the nut looked back and distinguished and said, well, we don't find liability at the nut settlement, government liability.

[00:07:49] Speaker 04:
And we didn't find it in Massey, but we found it in Massey because of this

[00:07:55] Speaker 04:
guaranteed language.

[00:07:56] Speaker 04:
So the court essentially revisited that and felt that, in some circumstances, and evidently, if not, felt that guarantees should be used in this ordinary common sense term, what we commonly think of when we hear the term guaranteed.

[00:08:13] Speaker 03:
And so Shaw- Mr. Dahl, can you comment on Shaw?

[00:08:19] Speaker 03:
construe our guaranteed in a way different than how you want us to construe our guaranteed in this case.

[00:08:27] Speaker 03:
Can you explain why we can do that?

[00:08:33] Speaker 04:
Yes, I can, Your Honor.

[00:08:35] Speaker 04:
This court was compelled to do that, and this court was compelled to find it as a term of order, because the consideration was specifically cabined into lump sum payments

[00:08:47] Speaker 04:
and the purchase of an annuity by the government.

[00:08:51] Speaker 04:
And I can read the specific language.

[00:08:53] Speaker 04:
And this court, in its decision, emphasizes this language.

[00:08:59] Speaker 04:
But before the specific lump sums are identified and before the annuity payments are identified, this court noted that the Shaw agreement stated that payment by the United States of America of the cash sums set forth below the initial lump sums and the purchase of annuities

[00:09:17] Speaker 04:
which will provide certain future periodic payments set forth below, in paragraph 6, shall constitute a complete release of the Shaw's claims."

[00:09:29] Speaker 04:
So to harmonize that happening of all the government needs to do is purchase the annuities and pay the cash sums, and in turn, you're going to give us a complete release, the court was compelled to find

[00:09:47] Speaker 04:
Because a guarantee in its ordinary sense was inconsistent with that term.

[00:09:52] Speaker 04:
And so the court was compelled to find guarantee as a term of order.

[00:09:56] Speaker 04:
But you don't see that same cabining of the consideration to the annuity payments and the lump sums in the late closed set.

[00:10:05] Speaker 04:
Mr. Dahl?

[00:10:06] Speaker 05:
Mr. Dahl, this is Judge Moore.

[00:10:08] Speaker 05:
Yes.

[00:10:08] Speaker 05:
So as I look at Massey, Massey has guarantee language and mandatory shall-be-paid language.

[00:10:16] Speaker 05:
That seems to parallel your case, which has guarantee and will-be-paid language.

[00:10:21] Speaker 05:
Both seem sufficiently mandatory.

[00:10:26] Speaker 05:
In Massey, there was no express discussion of any release, and I wasn't able to find

[00:10:34] Speaker 05:
because apparently it's only in storage in paper copy, the underlying settlement agreement from Massey.

[00:10:41] Speaker 05:
But there's no discussion in the opinion whatsoever of a release.

[00:10:44] Speaker 05:
Then we move forward to Shaw, and we have mandatory language, and then we're guaranteed again.

[00:10:48] Speaker 05:
But importantly, the point you just made, I'll read from page 45 of the appendix in Shaw, which is the actual release, which I think is the language you just read.

[00:10:59] Speaker 05:
The payment by the United States of America of the cash sum set forth in paragraph five

[00:11:04] Speaker 05:
and the purchase of annuities, which will be to provide certain future periodic payments that set forth in paragraph 6, shall constitute the complete release and bar to any and all causes of action."

[00:11:17] Speaker 05:
It then goes on to explain that if a third party has to be sued and the US has to be involved, they'll be indemnified for any expenses they have.

[00:11:29] Speaker 05:
So isn't it fair to look at the Shaw Settlement Agreement as a whole, as

[00:11:34] Speaker 05:
clearly seeking to take the government off the hook not just for the number of years that the annuity will be paid but also for whether the amount will continue to be paid and if you contrast that with the settlement agreement in your case

[00:11:50] Speaker 05:
The release is only in consideration hereof, which necessarily means everything has to happen that is promised here.

[00:12:00] Speaker 05:
So isn't that sort of the critical difference that makes your case more like Massey and less like Shawl?

[00:12:08] Speaker 05:
Because all of them have mandatory seeming language.

[00:12:12] Speaker 05:
All of them use the word guarantee.

[00:12:14] Speaker 05:
But the release seems to be a critical difference.

[00:12:17] Speaker 04:
I believe it is, Your Honor.

[00:12:19] Speaker 04:
Yes, I believe it is.

[00:12:21] Speaker 04:
And also, I believe this case is unique.

[00:12:25] Speaker 04:
This settlement agreement is unique.

[00:12:27] Speaker 04:
And when I say this settlement, I mean the land loss settlement.

[00:12:30] Speaker 04:
It has no, absolutely no discussion of who the annuity company will be that will even be processing the monthly annuities.

[00:12:40] Speaker 04:
In contrast, even in Shaw, it was identified at least

[00:12:46] Speaker 04:
over almost $3 million will be paid to Mayor LH Settlement Services and they will place the annuity.

[00:12:52] Speaker 04:
But there was some protections and some, and of course in Nutt, it went further and said, you know, you have, they gave the Nutt's permission to pursue the annuity.

[00:13:01] Speaker 04:
So in any event, this is, this settlement is very unique in that it's less than two pages long, but it's also, there's no discussion at all or no protections at all

[00:13:14] Speaker 04:
about the purchase of the annuity, who the government would use to purchase and fund the annuity.

[00:13:23] Speaker 04:
And I think that's very important as well.

[00:13:25] Speaker 05:
But if there is some ambiguity in your settlement agreement, if we were to conclude there's ambiguity, for example, in what the word guaranteed really meant, who drafted this?

[00:13:39] Speaker 04:
Well, it's hard to believe.

[00:13:42] Speaker 04:
I say, and I agree, that it has the government's file number on the first page of the settlement agreement, and that was evidence that they did it.

[00:13:51] Speaker 04:
And also, it has internal machinations of how the settlement will be processed and so on on the second page, which indicated the government did draft it.

[00:14:03] Speaker 04:
So we have asserted that the government drafted it.

[00:14:07] Speaker 05:
Have they disputed whether they drafted it?

[00:14:10] Speaker 04:
They have not.

[00:14:11] Speaker 04:
I think in their response brief, they just said that the reasons we gave for saying that they drafted it were insufficient reasons to prove that they drafted it.

[00:14:24] Speaker 04:
I think that's the response.

[00:14:25] Speaker 05:
If that were true, couldn't you introduce a declaration by one of the land closes that indicates at the time they didn't draft it, that it was drafted by the government?

[00:14:35] Speaker 04:
I could, yes.

[00:14:39] Speaker 04:
Yes.

[00:14:40] Speaker 05:
Why don't you save the rest of your time for rebuttal?

[00:14:42] Speaker 05:
You're almost out of time.

[00:14:46] Speaker ?:
I will.

[00:14:46] Speaker 05:
Thank you.

[00:14:47] Speaker 05:
Let's hear from the government.

[00:14:48] Speaker 05:
Mr. Schroeder, please proceed.

[00:14:50] Speaker 01:
Thank you, Your Honor.

[00:14:55] Speaker 01:
May it please the court.

[00:15:01] Speaker 01:
The government had two obligations under the settlement agreement to make a lump sum payment and to purchase an annuity.

[00:15:10] Speaker 01:
And upon purchasing the annuity, the government fulfilled its obligations by the settlement agreement's plain language.

[00:15:21] Speaker 01:
The agreement did not, in any sense, make the government liable for default by the annuity company.

[00:15:29] Speaker 01:
It did not make it responsible for shortfalls.

[00:15:31] Speaker 01:
There's no language in the agreement that does that.

[00:15:34] Speaker 05:
How do you distinguish this case from nasty?

[00:15:38] Speaker 01:
And Shaw actually... I don't want to know how Shaw does.

[00:15:43] Speaker 05:
I want to know how you distinguish the facts of this release from the Massey release, because the Shaw release looks very different for me from this release.

[00:15:52] Speaker 05:
So tell me how this release differs from Massey.

[00:15:57] Speaker 01:
Regarding the release line, which in this case there's a very broad release.

[00:16:03] Speaker 01:
And it states that, and this is what I'm talking about land close now, it states that the agreement is in full satisfaction of final sentence of any and all claims which we have or may have against the United States and others affiliated with the United States for personal injuries sustained as a result of the alleged negligence on the part of the Air Force medical personnel at the US Air Force Medical Center

[00:16:32] Speaker 01:
and the location on February 15, 1982, for any and all damages, losses, or injuries proximate and consequent thereto.

[00:16:41] Speaker 05:
But the release itself is only in consideration hereof, which means everything in the document.

[00:16:49] Speaker 05:
In consideration of everything in this document, we release the US.

[00:16:53] Speaker 01:
In consideration, we read that as a consideration of the government's fulfilling its obligations, which, again, were to

[00:17:02] Speaker 01:
Regarding Jennifer Lang Close, the plan is to pay a $200,000 lump sum, paragraph 1, appendix 8, page 18, and to purchase an annuity, the purchase of annuity setting forth that would provide the payments.

[00:17:21] Speaker 01:
And the payments are guaranteed?

[00:17:24] Speaker 01:
The payments are guaranteed pursuant to essentially the same language in Shaw, which is that

[00:17:33] Speaker 01:
In this case, his provision that all monthly payments are guaranteed for 30 years or the life of Jennifer, whichever is longer.

[00:17:41] Speaker 01:
That has been construed in Shaw to mean that type of provision means that the longer of her life or 30 years.

[00:17:52] Speaker 01:
So she lived 60 more years.

[00:17:57] Speaker 03:
That's what our guaranteed means generally in the context of annuities.

[00:18:02] Speaker 03:
And then it said, in the context of that agreement, it found that guaranteed just is referring to the term of the payments and not to the amount of the payments.

[00:18:16] Speaker 03:
And then as I think Chief Judge Moore pointed out earlier, as did Opposing Council, there was a very specific release in the Shaw Agreement that was tethered to the payment of the annuity, to the purchase of the annuity.

[00:18:34] Speaker 03:
by the government.

[00:18:36] Speaker 03:
And through the purchase of the annuity, the government had exhausted its obligations under the agreement.

[00:18:43] Speaker 03:
And so now the court had to figure out, what do we do with the R-guaranteed language?

[00:18:49] Speaker 03:
And I'm not saying this is right, but I'm saying there is a reading of that opinion that says to read all of those provisions of that particular agreement,

[00:18:59] Speaker 03:
Consistently, guaranteed in the context of that case was referring to the guarantee in terms of the overall term of the annuity and not in terms of the relative monthly amount that was going to be paid.

[00:19:13] Speaker 03:
Here, we don't have a release that's so specifically tied to the mere payment and purchase of an annuity.

[00:19:21] Speaker 03:
The release is connected to something like inconsideration thereof.

[00:19:29] Speaker 03:
everything in the contract could be read to mean that what is being guaranteed by the government is that these payments of this annuity are actually going to happen.

[00:19:45] Speaker 01:
Your Honor, there's no language in the agreement, and there was language in Massey, and there's language in the other cases that indicate there was a type of guarantee or responsibility primarily on the government to make the pick cases.

[00:20:00] Speaker 01:
And I would like to just first mention in Massey, since that was brought up, I think it's important to note it wasn't just the, there's not just guarantee language in Massey,

[00:20:11] Speaker 01:
included language providing that the annuity will result in distributions on behalf of the United States and that the distribution shall be paid.

[00:20:19] Speaker 01:
That's important language.

[00:20:20] Speaker 01:
And in Shaw, the court relied on that language and said that the periodic payments as being made on behalf of the United States

[00:20:29] Speaker 01:
suggested an ongoing obligation of the government.

[00:20:32] Speaker 03:
In the massive opinion itself, our holding did not rely on that phrase, on behalf of the United States.

[00:20:39] Speaker 03:
Is that right?

[00:20:40] Speaker 03:
It simply quoted the snippets of, will result in distributions, and shall be paid, and then concluded those two snippets are unambiguous, and the payments are mandatory, and the government must be responsible for their payment.

[00:20:57] Speaker 03:
No one else is a party to the agreement.

[00:21:00] Speaker 01:
Your Honor, we believe that as an initial matter, that language is in the contract in Massey.

[00:21:08] Speaker 01:
And it was mentioned by the court.

[00:21:11] Speaker 01:
And the fact that it didn't specifically focus on that doesn't mean that language is not significant.

[00:21:18] Speaker 01:
And in Shaw, the court interpreted that language

[00:21:21] Speaker 01:
as the basis for the decision in Massey.

[00:21:26] Speaker 01:
So the courts were coming down different ways on these contracts.

[00:21:31] Speaker 01:
And I believe in the last few years, the court has issued a few opinions that have tried to clarify where to draw the line.

[00:21:40] Speaker 01:
And it seems to have drawn the line in Shaw

[00:21:45] Speaker 01:
It drew a fairly bright line.

[00:21:47] Speaker 03:
The Nut opinion does a characterization of the Massey opinion too, right?

[00:21:52] Speaker 03:
Excuse me?

[00:21:53] Speaker 03:
The Nut opinion also performs a characterization of the Massey opinion.

[00:21:59] Speaker 01:
It does.

[00:22:00] Speaker 03:
I believe it focuses on the fact that the Massey opinion says, are guaranteed,

[00:22:05] Speaker 03:
And that was a key reason for why the court in Massey concluded that in that contract, the government was on the hook, because the NUT agreement did not have the R-guaranteed language.

[00:22:22] Speaker 01:
Well, going back to that language, all monthly payments are guaranteed for 30 years or the life of Jennifer, whichever is longer.

[00:22:32] Speaker 01:
is consistent with only one meaning.

[00:22:35] Speaker 01:
It's not ambiguous.

[00:22:36] Speaker 01:
It means you get the benefit of the doubt.

[00:22:41] Speaker 01:
If the person who's entitled to the annuity payments were not to live for 30 years, the estate would continue to collect

[00:23:01] Speaker 01:
for the remainder.

[00:23:03] Speaker 01:
However, if the person lived for 80 years, 30 years is not a limit.

[00:23:10] Speaker 01:
And the person would collect for another 50 years.

[00:23:13] Speaker 01:
And that's clearly what that means.

[00:23:14] Speaker 01:
And I believe that's how Shaw explained it as well.

[00:23:20] Speaker 01:
So this guarantee language is used for that sole purpose.

[00:23:31] Speaker 01:
language in the massive contact crisis.

[00:23:35] Speaker 01:
One moment, Your Honor.

[00:23:38] Speaker 01:
I'm trying to remember exactly what Nutt said about that.

[00:23:56] Speaker 01:
My notes here say that Nutt

[00:24:07] Speaker 01:
The court rejected the idea that there was a guarantee by the government.

[00:24:13] Speaker 01:
And the court noted that the United States has not mentioned in the paragraph specifying the future payments by the annuity.

[00:24:21] Speaker 01:
I guess that was probably looking at its own provision there.

[00:24:28] Speaker 01:
I don't recall what they said about massing that case.

[00:24:32] Speaker 01:
I apologize.

[00:24:34] Speaker 00:
Let me draw your attention back to the second page of the release of the agreement.

[00:24:41] Speaker 00:
Yes.

[00:24:41] Speaker 00:
And the paragraph that actually states the release language that starts with the consideration hereof.

[00:24:48] Speaker 00:
When I read that, in consideration of hereof, then I ask, well, in consideration of what?

[00:24:54] Speaker 00:
What does hereof mean?

[00:24:56] Speaker 00:
And if I accept your argument, then what that means is in consideration of a timetable.

[00:25:03] Speaker 00:
And that's it, nothing else.

[00:25:06] Speaker 01:
That's what the hear of means in our view.

[00:25:11] Speaker 00:
So you settled this case, and you're trying to convince us that the Lanclos agreed to a promise of a timetable calendar and nothing else, and they relieved the government of all liability?

[00:25:28] Speaker 01:
No, what Ms.

[00:25:30] Speaker 01:
Lanclos agreed to is what's in

[00:25:32] Speaker 01:
the first paragraph of the settlement or in paragraph one?

[00:25:35] Speaker 00:
Well, it says hereof.

[00:25:37] Speaker 00:
I mean, I take that to mean the entire agreement for us to look at it.

[00:25:42] Speaker 00:
And when I do that, I see the promise of the purchase of annuity.

[00:25:47] Speaker 00:
I see a guarantee of money.

[00:25:50] Speaker 00:
There's money amounts there.

[00:25:52] Speaker 00:
And then there's a schedule.

[00:25:54] Speaker 00:
And it seems to me that the Lancelots

[00:25:57] Speaker 00:
for the promise or rather for the consideration that's paid hereof, that includes all three of those elements.

[00:26:04] Speaker 00:
How can they just include one?

[00:26:07] Speaker 01:
The calendar.

[00:26:08] Speaker 01:
Your honor, there are other provisions.

[00:26:11] Speaker 01:
There are, for example, the payment to the attorney.

[00:26:15] Speaker 01:
But what it does is it releases the government once the government, in our view,

[00:26:24] Speaker 01:
makes the lump sum payment of $200,000 and then purchases an annuity that obligates the annuity company to make the payments listed in the schedule right there.

[00:26:39] Speaker 00:
No, it does not say that it obligates an annuity company.

[00:26:44] Speaker 00:
This does not release the annuity company.

[00:26:48] Speaker 00:
It releases the government.

[00:26:50] Speaker 01:
That's what I'm, yes, I agree.

[00:26:51] Speaker 00:
And when we ask in consideration of what, then I look at the entire agreement and I see a calendar, I see amounts, and a timetable.

[00:27:04] Speaker 00:
It cannot be that the Lanclos agreed to release the federal government just for a timetable, just dates and no money.

[00:27:17] Speaker 01:
the government purchased an annuity that paid Ms.

[00:27:21] Speaker 01:
Lanklos for over 25 years, the full amount, and in our view that's what the release was for.

[00:27:30] Speaker 05:
It didn't pay her for the full amount for the 30 years that it was supposed to.

[00:27:33] Speaker 05:
That's what the government requires.

[00:27:35] Speaker 01:
But the government, the question isn't only the release, the question is where in this agreement is the government obligated in the event that it

[00:27:45] Speaker 00:
Purchases an annuity they maybe maybe we can find the answer to your question when we look at the language that says all monthly payments above are guaranteed Well, who's giving who's making that guarantee?

[00:27:58] Speaker 00:
There's only two parties here the landfills in the federal government So who's making that guarantee of the most payments?

[00:28:06] Speaker 01:
Yes, and we would go back to Shaw again, which explained and other cases that have similar language and

[00:28:13] Speaker 01:
But Shaw expressly said that's a term of art.

[00:28:16] Speaker 01:
And the term of art in this case is that.

[00:28:20] Speaker 00:
If we determine that it's not a term of art in this case for various reasons, then would you say that you would lose?

[00:28:28] Speaker 01:
Your Honor, I would not see that because it's clear on its face that what it is saying is that you have a guarantee of payment for life

[00:28:42] Speaker 01:
were for 30 years, whichever is longer.

[00:28:44] Speaker 01:
That's what it means.

[00:28:46] Speaker 00:
But it doesn't say that.

[00:28:47] Speaker 00:
It says all monthly payments above are guaranteed.

[00:28:56] Speaker 01:
But the idea there was that the annuity would provide those payments

[00:29:09] Speaker 01:
because the government has to pay for the annuity.

[00:29:12] Speaker 01:
So whatever it costs to pay Ms.

[00:29:16] Speaker 01:
Lanclos for 30 years or life, whichever is longer.

[00:29:20] Speaker 01:
If it was just 30 years, presumably the premium would have been lower.

[00:29:25] Speaker 01:
But there was a guaranteed life payment.

[00:29:29] Speaker 01:
And there was also a guarantee that if Ms.

[00:29:34] Speaker 01:
Lanclos didn't survive for 30 years,

[00:29:37] Speaker 00:
Can you say there's a guaranteed life payment or these amounts of guaranteed?

[00:29:42] Speaker 00:
What is it that's guaranteed?

[00:29:43] Speaker 00:
You're talking about the money.

[00:29:47] Speaker 00:
It's not possible or feasible for you to say that the promise that's being made is an empty promise, just dates.

[00:30:00] Speaker 01:
That was the same exact type of promise.

[00:30:07] Speaker 01:
Shaw.

[00:30:08] Speaker 01:
And Shaw held it as a decision of this court that looked at the other decisions, that the agreement did not make the government a guarantor of annuity payments.

[00:30:21] Speaker 01:
And it was very similar language.

[00:30:24] Speaker 05:
But in that, it wasn't similar.

[00:30:26] Speaker 05:
In the case that you're talking about where they weren't the guarantor, you're talking only about Shaw, because Nutt did that, but it didn't have the guarantee language.

[00:30:36] Speaker 05:
And it actually distinguished itself from Massey entirely on the guarantee language.

[00:30:42] Speaker 05:
But you're only talking about Shaw.

[00:30:44] Speaker 05:
And yes, Shaw had the guarantee language.

[00:30:46] Speaker 05:
But Shaw also had a release that it tied specifically to the paragraph when the purchase of the annuity, but not to the paragraph on the annuity payments and going forward for life.

[00:30:56] Speaker 05:
So they released the government once the government purchased the annuity.

[00:31:01] Speaker 05:
That's what their settlement says.

[00:31:03] Speaker 05:
This doesn't say that.

[00:31:05] Speaker 01:
But the other thing about a release is that there still has to be an obligation first of the government to actually guarantee the annuity payment.

[00:31:21] Speaker 01:
So when it's a guarantee, it's usually.

[00:31:22] Speaker 05:
And Massey said, in identical language,

[00:31:28] Speaker 05:
Our nut decision says, when Massey had this guaranteed language, that's the critical difference to put the government on the hook.

[00:31:35] Speaker 05:
Shaw came along and said, no, it's not in our case because we have this release.

[00:31:42] Speaker 01:
Yes.

[00:31:42] Speaker 01:
Massey also, though, again, to come back, says that the annuity will result in distributions on behalf of the United States.

[00:31:53] Speaker 01:
So in that case, the annuity of the United States

[00:31:57] Speaker 01:
the obligor and that language, that type of language is absent here because the only promise here in the Langfos case is to purchase an annuity and to make lump sum payments.

[00:32:14] Speaker 01:
In cases where those are the only promises, the court has held the government not to be liable.

[00:32:23] Speaker 01:
And even in

[00:32:27] Speaker 05:
Who drafted the release in this case?

[00:32:30] Speaker 01:
We don't know, Your Honor.

[00:32:32] Speaker 01:
The release was drafted, I think, around 1986.

[00:32:36] Speaker 01:
And that's never been determined at this point.

[00:32:40] Speaker 05:
Well, what about the fact that it has the docketing number for the United States on the front?

[00:32:45] Speaker 05:
Isn't that sufficient evidence?

[00:32:46] Speaker 05:
You're not disputing that you drafted.

[00:32:48] Speaker 05:
They allege you drafted the release.

[00:32:51] Speaker 05:
They point to the docket number.

[00:32:53] Speaker 05:
And you don't dispute that you drafted the release.

[00:32:55] Speaker 01:
We don't know that their brief didn't explain why this number on there, that that OJC number on there means the government drafted the release.

[00:33:19] Speaker 01:
there's just no way of knowing from the record before the court and plaintiff speculated that the government drafted the release but if you look at plaintiff's brief it doesn't actually I don't think they speculate I think they allege it right they allege the government drafted the release well alleging this is summary judgment motion alleging the government drafted the release is proof that the government drafted the release there's there's no indication

[00:33:48] Speaker 01:
who drafted the language.

[00:33:51] Speaker 05:
So if there is potential ambiguity, and they're alleging you drafted the release, and you put no evidence on to the contrary, and they point to this docket number on the first page that they claim, do you dispute that that docketing number is the United States?

[00:34:09] Speaker 01:
Your Honor, I don't know what that docketing number is.

[00:34:14] Speaker 01:
But even if it is the United States' docketing number,

[00:34:17] Speaker 01:
That doesn't mean that the government drafted this entire agreement.

[00:34:22] Speaker 01:
We don't know if, and I don't believe they had the same council.

[00:34:27] Speaker 01:
However, the council here may have drafted the agreement

[00:34:35] Speaker 01:
or pieces of this agreement were suggested.

[00:34:38] Speaker 01:
This term presented the payment schedule for the annuity.

[00:34:46] Speaker 01:
There's no evidence one way or another who drafted which terms in this case.

[00:34:52] Speaker 03:
A quick question.

[00:34:54] Speaker 03:
This is now the fourth case that's come before us dealing with these settlement agreements where the government agreed to pay for an annuity and then the annuity company goes into financial distress and then there's a shortfall on the annuity payments.

[00:35:13] Speaker 03:
Do you know how many other cases are like this that are out there?

[00:35:18] Speaker 03:
I mean, this all happened in the 80s, and then this particular insurance company had problems.

[00:35:25] Speaker 03:
I mean, are there many other of these kinds of cases?

[00:35:28] Speaker 01:
Your Honor, I don't know the answers, but I know that there's at least one more that's out there that hasn't been adjudicated yet.

[00:35:37] Speaker 01:
I don't think there are a whole lot, but I'm sorry, I can't really answer that.

[00:35:44] Speaker 01:
And I don't know what might be pending

[00:35:47] Speaker 01:
other places.

[00:35:53] Speaker 05:
OK.

[00:35:53] Speaker 05:
Thank you, counsel.

[00:35:54] Speaker 05:
We are way beyond our time on this case.

[00:35:56] Speaker 05:
Thank you.

[00:35:57] Speaker 05:
Mr. Doll has a few minutes of rebuttal time.

[00:36:00] Speaker 05:
Mr. Doll, we can't hear you.

[00:36:02] Speaker 05:
You must have your microphone muted.

[00:36:05] Speaker 04:
My apologies.

[00:36:10] Speaker 04:
My apologies.

[00:36:11] Speaker 04:
I don't have much in rebuttal other than I would urge this court again to apply standard rules of contract

[00:36:18] Speaker 04:
that the plain and ordinary terms within this settlement agreement mean that the government guaranteed these payments in the event of default.

[00:36:28] Speaker 04:
And we think that's, in this particular case, is clear.

[00:36:32] Speaker 04:
And reading the document as a whole, very much unlike the Shaw agreement, much closer to the Massey agreement, and also just the agreement itself, and the change of defenses to are guaranteed, we think that shows as a matter of law

[00:36:48] Speaker 04:
that the government guaranteed these final repayments.

[00:36:53] Speaker 04:
So we would ask for relief that the judgment of the federal claim be reversed and vacated, and that this court find liability on the part of the government for the shortfall.

[00:37:06] Speaker 04:
Thank you.

[00:37:07] Speaker 04:
Thank you.

[00:37:07] Speaker 05:
We thank both counsel with cases taken under submission.