[00:00:09] Speaker 00:
You may proceed.

[00:00:10] Speaker 02:
Thank you, your honor.

[00:00:13] Speaker 02:
May it please the court, my name is Russell Petty and I'm representing the plaintiff and the appellant, William White.

[00:00:21] Speaker 02:
Your honors, the claimants in ERISA insurance claims face a great many hurdles and disadvantages that are not faced by other persons seeking, litigants seeking insurance benefits.

[00:00:35] Speaker 02:
You have no right to a jury at trial.

[00:00:38] Speaker 02:
You're not entitled to present any witnesses.

[00:00:42] Speaker 02:
You're actually not entitled to present any evidence at all, except what is in a fixed record, which in many cases was compiled prior to the plaintiff recognizing that he needed an attorney.

[00:00:58] Speaker 02:
Because of the limited admissibility of evidence, there's very limited and sometimes no discovery at all.

[00:01:05] Speaker 02:
And then when you finally get to trial, you have to not just show that you're right and are entitled to benefits, but you have to show that the insurance company's decision in the language of this court's Soloma decision is illogical, implausible, and or without support in the record.

[00:01:30] Speaker 02:
That's a daunting standard.

[00:01:35] Speaker 02:
In United Policy Holders amicus brief at pages 16 through 19, they detail and list some of the great many cases

[00:01:47] Speaker 02:
where the courts acknowledged that the claimant had a valid and perhaps even winning claim, but ruled against the claimant because it was mandated by the standard of review.

[00:02:02] Speaker 00:
Let's just get to that then.

[00:02:03] Speaker 00:
So I'm looking at ER 56, which is the policy exclusions.

[00:02:10] Speaker 00:
Yes.

[00:02:11] Speaker 00:
And it says, we won't pay for any loss caused directly or indirectly

[00:02:17] Speaker 00:
While the employee is a driver in a motor vehicle accident, if he does not hold a current and valid driver's license.

[00:02:25] Speaker 00:
So regardless of the standard of review in this case, I think it's established that your client was driving a motorcycle but did not have a motorcycle license, correct?

[00:02:35] Speaker 02:
That is correct, your honor.

[00:02:36] Speaker 02:
Well, a class M endorsement.

[00:02:38] Speaker 02:
I mean, you had a driver's license.

[00:02:39] Speaker 00:
Right, but he was not licensed to drive the motorcycle.

[00:02:41] Speaker 02:
That is correct, your honor.

[00:02:42] Speaker 00:
Like, I have a driver's license, but I'm not licensed to drive a truck of a certain size, and I'm not licensed to drive a motorcycle.

[00:02:50] Speaker 00:
Obviously, I understand your argument, but they're going to come back and say, and they did say this in their brief, standing review doesn't matter.

[00:02:56] Speaker 00:
Because under the policy, you have to have a license for the vehicle you're driving, and he didn't, so he's not covered.

[00:03:02] Speaker 00:
And we don't need to get into de novo or de novo or abuse of discretion.

[00:03:05] Speaker 00:
Why are they wrong about that?

[00:03:06] Speaker 02:
Your Honor, I'm going to turn that around and agree with you that in one sense the standard of view doesn't matter because I believe that that language is plain and unambiguous and the language of the exclusion simply isn't met here.

[00:03:21] Speaker 02:
And there's no possible way to construe the policy that it is now.

[00:03:25] Speaker 02:
What the exclusion says is there's no benefits to be paid.

[00:03:30] Speaker 02:
if the employee is a driver in a motor vehicle accident, if he or she does not hold a current and valid driver's license.

[00:03:40] Speaker 02:
It does not say, it could have, but it does not say a current and valid driver's license for the vehicle you happen to be driving at a time, at the time.

[00:03:48] Speaker 03:
So in your view, if he's driving a bus with 50 passengers,

[00:03:53] Speaker 03:
he'd be fine because he had a driver's license?

[00:03:56] Speaker 03:
No, but probably not, your honor.

[00:03:58] Speaker 02:
Why?

[00:03:58] Speaker 02:
Because the policy also has an illegal act exclusion, and driving a bus with 50 passengers without a license would probably fit within that, but that... Well, but now you're kind of splitting hairs.

[00:04:11] Speaker 03:
Isn't it illegal to drive

[00:04:14] Speaker 03:
without a license applicable to the type of vehicle that you're operating?

[00:04:19] Speaker 02:
It is, but the illegal act exclusion and the policy only covers felonies and not this would either be a misdemeanor or an infraction if it was charged at all and I have no evidence that it was.

[00:04:30] Speaker 03:
Well, we might keep arguing about discretionary or this or that, but the question is

[00:04:36] Speaker 03:
we have this Wang case and of course this panel can't overrule a prior panel of the court.

[00:04:44] Speaker 03:
Why doesn't Wang control?

[00:04:47] Speaker 02:
Your Honor, I'm going to have to get back to Judge Owens' question.

[00:04:52] Speaker 02:
Your Honor, I don't think there's any real distinction between Wang and section 187 of the

[00:05:00] Speaker 02:
choice of law rest, restatement, excuse me, I'm sorry.

[00:05:03] Speaker 02:
The Wang talks about a choice of law provision won't be enforced if it is fundamentally unfair.

[00:05:13] Speaker 02:
187B talks about depriving a resident of a state of a fundamental right.

[00:05:23] Speaker 02:
I think they're both really saying the same thing.

[00:05:26] Speaker 02:
And in this case, the,

[00:05:29] Speaker 02:
California legislature was very clear that it wrote this statute in order to protect the right of California residents to a fair judicial hearing.

[00:05:41] Speaker 02:
And I don't think there's really the, you know, Guardian never even really makes the argument that a right to a judicial hearing is not a fundamental right.

[00:05:51] Speaker 02:
And as a result, I think that either under 187B of the restatement or Wang,

[00:05:58] Speaker 02:
because in this case the choice of law provision would be used to deprive Mr. White of a fair judicial hearing that's a fundamental right and so therefore it should not be enforced under either standard and there really is no

[00:06:16] Speaker 02:
No argument that it is.

[00:06:18] Speaker 02:
Now, returning to Judge Owens' question, look, I mean, the language of the exclusion is clear.

[00:06:28] Speaker 02:
Current and valid driver's license.

[00:06:30] Speaker 02:
We all know what a driver's license is.

[00:06:32] Speaker 02:
I submit that everybody in this courtroom probably has one in their wallet or their handbag.

[00:06:38] Speaker 02:
What does current mean?

[00:06:40] Speaker 02:
Current means it hasn't expired.

[00:06:42] Speaker 02:
What does valid mean?

[00:06:43] Speaker 02:
Valid means it was issued by the appropriate authority and hasn't been revoked yet.

[00:06:48] Speaker 02:
If someone was to ask me, let me back up for a second, under the Evans standard, this language is supposed to be interpreted in an ordinary and popular sense as would a person of average intelligence and experience.

[00:07:02] Speaker 02:
If someone were to ask me, Mr. Petty, have you got a driver's license?

[00:07:07] Speaker 02:
My response would be, oh, what kind of driver's license?

[00:07:09] Speaker 02:
My response would be yes.

[00:07:11] Speaker 02:
Of course I have one, because that's what someone would mean.

[00:07:15] Speaker 02:
Now I understand the problem that Judge Schroeder is raising, which doesn't make any sense to have an exclusion which doesn't relate to the particular vehicle which is being driven.

[00:07:31] Speaker 02:
And I've really got two responses to that.

[00:07:34] Speaker 02:
And response number one is it doesn't matter, you know, what the insurance company was thinking when it wrote this exclusion.

[00:07:40] Speaker 02:
You know, isn't the guidance here, we have to look at the language that they used and the fact that they didn't say for the vehicle to be being driven, you know, you just can't add that.

[00:07:50] Speaker 03:
I just want to say that.

[00:07:52] Speaker 03:
I'm always happy to be compared with Judge Schroeder, but I'm not Judge Schroeder.

[00:07:57] Speaker 02:
It's all right.

[00:08:00] Speaker 02:
We are both females.

[00:08:01] Speaker 02:
My apologies.

[00:08:08] Speaker 02:
The other argument is I think it misunderstands how these exclusions come about.

[00:08:15] Speaker 02:
What happens is some actuary puts on a green eye shade and looks at data sets and excludes risks based on just sort of

[00:08:28] Speaker 02:
what the data tells her and I think in this case the data says that someone with a motor vehicle without any driver's license at all presented an unreasonable risk.

[00:08:39] Speaker 02:
Just as an example of the way these things are written, the exclusion also has an exclusion for being in an armed conflict.

[00:08:49] Speaker 02:
But then it has another exclusion for being in the military.

[00:08:52] Speaker 02:
Well, why do you need the exclusion in the military if you've already excluded being armed conflict?

[00:08:57] Speaker 02:
Again, some actuary looked at the data and realized correctly, as it turns out, that just being in the military is dangerous.

[00:09:04] Speaker 04:
Well, I understand your problems.

[00:09:06] Speaker 04:
As a prior trial lawyer And I've gone with these insurance contracts forever But we have to go by the law and that somebody is going to have to be disappointed, but you might help me with this Why why should we limit Wang?

[00:09:23] Speaker 04:
to only That addresses only choice of law disputes But Implicate different statutes of limitations

[00:09:36] Speaker 04:
when the rule in Wang is so broadly, so very broadly worded.

[00:09:42] Speaker 02:
Well, I mean, the standard from Wang is unreasonable or fundamentally unfair.

[00:09:51] Speaker 04:
Would you speak up just a bit, please?

[00:09:53] Speaker 02:
Oh, I'm sorry, Your Honor.

[00:09:54] Speaker 02:
Is this better?

[00:09:57] Speaker 02:
Yes.

[00:09:57] Speaker 02:
The fundamental unfairness was not addressed in Wang, and I think this court, I mean, that language has to mean something.

[00:10:05] Speaker 02:
uh... you know in in in Wayne's case it was a perfectly reasonable statute of limitation just from a different state uh... and and there was no reason why it was and there really was not even an argument that it was fundamentally unfair in this case uh... the uh... you know as i said that you know the right to a fair judicial hearing is is obviously a fundamental right it's probably the most fundamental right because it's the right to protect all the other rights and and and if

[00:10:35] Speaker 02:
being deprived of a fair judicial hearing does not constitute deprivation of a fundamental right, then it's difficult to understand what could possibly meet that standard.

[00:10:47] Speaker 02:
And as I said, the language, fundamentally unfair, has to mean something.

[00:10:53] Speaker 02:
And so, Your Honor, I submit that that's what it means.

[00:10:57] Speaker 03:
Let me anticipate what we might hear from the other side, and I'd appreciate your comments now, and that is that

[00:11:04] Speaker 03:
ERISA is a national statute and when the pension reform was passed so that we would have uniformity among employee benefit plans, there was this notion that it's national and it shouldn't be state by state.

[00:11:21] Speaker 03:
And so under your theory, it would really depend on what state the plaintiff lived in, not the choice of law.

[00:11:30] Speaker 03:
Why does that make sense?

[00:11:32] Speaker 03:
from an either practical or public policy standpoint.

[00:11:35] Speaker 02:
I'm so happy you asked that question because that really gets into an issue that basically is not in my reply brief because I thought about it some and it came up with it when I was preparing for oral argument.

[00:11:49] Speaker 02:
The concerns about uniformity are wildly over drawn and the reason for that is because in this circuit at least, we already have uniformity.

[00:12:05] Speaker 02:
in McClure and Evans, and I didn't cite to McClure, but that's at 84, F3rd, 1129, determined that in this circuit at least, insurance claims under ERISA would not be referenced by state insurance law.

[00:12:21] Speaker 02:
State insurance law of contract interpretation was held to be preempted, and all these cases are therefore decided

[00:12:29] Speaker 02:
strictly under federal common law, a uniform body of federal common law.

[00:12:33] Speaker 02:
And so in the vast majority of cases, you know, a state choice of law provision simply doesn't matter because regardless of whether you've got Alaska law or Florida law, California law, in this circuit it's going to be decided under a uniform body of federal common law.

[00:12:55] Speaker 02:
There are only three exceptions.

[00:12:57] Speaker 02:
to that.

[00:12:58] Speaker 02:
One of them is with respect to mandated medical benefits under MetLife, Massachusetts versus MetLife.

[00:13:08] Speaker 02:
The other one is the notice prejudice rule under Cisneros.

[00:13:11] Speaker 02:
And the third is the ban on discretionary clauses, which this court held was saved from preemption in Orshankowski and Morrison.

[00:13:21] Speaker 02:
And if you're not in one of those three situations,

[00:13:25] Speaker 02:
all you're going to get are federal common law and that's not the case in all circuits.

[00:13:29] Speaker 02:
In Durden, for example, there was an issue of which of two women was the lawful spouse of the decedent and the court struggled to come up with what state law should apply.

[00:13:42] Speaker 02:
Evans,

[00:13:44] Speaker 02:
uh... this court faced a a similar issue and in spite of judge schroeder's concurrence and that's the reason why i'm you know uh... the uh... they uh...

[00:13:58] Speaker 02:
they reach the decision that has to be decided under federal law.

[00:14:02] Speaker 02:
You could certainly look to state law and other federal cases in reaching the decision, but none of that is binding because these are federal decisions.

[00:14:12] Speaker 02:
Your Honor, I'd like to make one other point that

[00:14:17] Speaker 02:
that I didn't have an opportunity to raise because it didn't occur to me at the time.

[00:14:22] Speaker 02:
And there is no valid discretionary clause identified.

[00:14:27] Speaker 02:
I made that argument in the opening brief that the discretionary clause relied on by the district judge was in the certificate, which expressly says it's not part of the policy.

[00:14:39] Speaker 02:
Under Pritchard then, granted discretion is not enforceable.

[00:14:43] Speaker 02:
Answering brief, Guardian says no matter because the policy incorporates the certificate.

[00:14:47] Speaker 02:
It points to language at 2ER165.

[00:14:51] Speaker 02:
That language is not in the ED&D policy under which Mr. White is seeking benefits, which is at 2ER28-157.

[00:15:00] Speaker 02:
And- Can you cite a case to us that's not in our briefs?

[00:15:05] Speaker 04:
We like to have you give the citation to the clerk so that we don't have to go fish for it.

[00:15:11] Speaker 02:
Is that Prichard or is that the McClure case, Your Honor?

[00:15:14] Speaker 02:
I'll give both citations.

[00:15:15] Speaker 03:
I think Prichard is in the briefs.

[00:15:17] Speaker 02:
Prichard is in the briefs.

[00:15:18] Speaker 02:
McClure is not.

[00:15:18] Speaker 02:
I will provide that to the courtroom deputy.

[00:15:20] Speaker 00:
Or you can do a 28J so it's filed with the court, which is even better.

[00:15:25] Speaker 02:
I will do that and I'll see that my time is expired and thank the court for its attention.

[00:15:30] Speaker 02:
Thank you, counsel.

[00:15:44] Speaker 01:
Good morning, Your Honors.

[00:15:47] Speaker 01:
Jordan Altura for Appellee Guardian Life Insurance Company.

[00:16:04] Speaker 01:
The District Court correctly determined that the choice of law provision

[00:16:08] Speaker 01:
and the policy is enforceable and that the Abusive Discretion Standard of Review applied.

[00:16:15] Speaker 01:
The standard set forth in Wang v. Kagan is based on decades of precedent from the Supreme Court and this Court.

[00:16:24] Speaker 01:
And it has been followed by several circuit courts of appeals and district courts under similar facts to reach the exact same conclusion the trial court reached in this case, which is that the party's choice of Florida law should be enforced.

[00:16:41] Speaker 01:
It was not fundamentally unfair.

[00:16:43] Speaker 01:
It was not unreasonable to do so.

[00:16:46] Speaker 01:
And there is no basis to overrule Wang or limit it to its facts.

[00:16:52] Speaker 01:
But with this said, the court should not even need to reach the choice of law question.

[00:16:58] Speaker 01:
This is a simple case and one that the court, this court has seen before.

[00:17:02] Speaker 01:
In fact, Your Honor, Judge Owens was on the panel that decided Earl versus Unum.

[00:17:11] Speaker 01:
And in Earl, which was decided about five years ago, the trial court reached the same conclusion that the court reached in this case.

[00:17:19] Speaker 01:
The trial court enforced a choice of law provision where the chosen state's law did not have a discretionary ban.

[00:17:28] Speaker 01:
The arguments being asserted here today were asserted by appellants council in the same case.

[00:17:34] Speaker 01:
So it's the same council that represented Mr. Earl that are here today.

[00:17:39] Speaker 01:
Persistence does not pay off in this situation.

[00:17:44] Speaker 01:
It is the same issue and the court should not even need to reach the choice of law question because the result will be the same under any standard of review.

[00:17:56] Speaker 01:
The policy language could not be clearer.

[00:17:59] Speaker 01:
Unfortunately for Appellant, he was operating a vehicle and was involved in a motor vehicle accident driving a vehicle he did not have a license to drive.

[00:18:11] Speaker 01:
As unfortunate as that is, Guardian was required as the planned fiduciary to enforce those terms.

[00:18:21] Speaker 01:
and to apply, and the district court was required to apply the, excuse me, the abusive discretion standard of review.

[00:18:30] Speaker 03:
Of course, he would argue, as he has, that he did have a driver's license, and he was operating a motor vehicle, and he had a driver's license, and that's all that the policy language says.

[00:18:44] Speaker 03:
So on its face, they've inserted an additional term into that.

[00:18:50] Speaker 03:
Why not?

[00:18:52] Speaker 01:
Understood, Your Honor, and there's no need to insert an additional term.

[00:18:57] Speaker 01:
The provision, consistent with ERISA policy, the goals of being consistent, efficient, and having laws that can be easily applied by the administrator, the provision is intentionally broad.

[00:19:11] Speaker 01:
It doesn't distinguish between vehicles.

[00:19:14] Speaker 01:
It says, if you are involved in a motor vehicle accident,

[00:19:19] Speaker 01:
and you don't have a valid license.

[00:19:22] Speaker 01:
That obviously applies to the vehicle being driven.

[00:19:26] Speaker 01:
Otherwise we would have an absurd result.

[00:19:30] Speaker 01:
As the court pointed out, driving a school bus, driving a semi-truck, certainly nobody would contend that they were entitled to drive a semi-truck and that without a valid license for that vehicle.

[00:19:44] Speaker 01:
And the same applies here to a motorcycle.

[00:19:48] Speaker 01:
A specific license is required to operate a motorcycle.

[00:19:52] Speaker 01:
And the policy language is clear and must be interpreted consistent with the expectations of a person of ordinary intelligence.

[00:20:04] Speaker 01:
That's what the court held in Padway.

[00:20:09] Speaker 01:
We submit that anyone with an average, ordinary level of intelligence would understand that they are not covered for an accident that arises while they're operating a vehicle for which they are not validly licensed.

[00:20:31] Speaker 04:
as long as you're interrupted by you let me thank you your honor if we elect to apply the restatement approach to the choice of law issues here it concerns me that

[00:20:47] Speaker 04:
that there's a local as well as a national interest involved.

[00:20:52] Speaker 04:
And doesn't California interest in voiding discretionary clauses outweigh any of Florida's interest in this matter?

[00:21:05] Speaker 01:
Respectfully your honor no it does not appellant has not explained has not met their burden of demonstrating why California's interest under the restatement test is materially greater than Florida's.

[00:21:21] Speaker 01:
It's not a question of being greater.

[00:21:24] Speaker 01:
It must be materially greater, substantially greater.

[00:21:28] Speaker 01:
Appellant has not satisfied his burden of demonstrating that California's interest is materially greater than Florida's interest in seeing that businesses operating in its in Florida

[00:21:41] Speaker 04:
Well, California is worried about people that hit other people and whether or not there's insurance so the taxpayers don't have to pay.

[00:21:50] Speaker 04:
That's fairly substantial interest, isn't it?

[00:21:53] Speaker 04:
How do we balance between the two interests?

[00:21:58] Speaker 01:
Well, I think, Your Honor, and of course California does have an interest, and I would never suggest that it doesn't.

[00:22:04] Speaker 01:
But the question is, is it materially greater?

[00:22:08] Speaker 04:
Correct.

[00:22:09] Speaker 04:
And I'm toying with the question, how do you respond to that to make this choice?

[00:22:16] Speaker 01:
Well, Your Honor, the- Social choice.

[00:22:18] Speaker 01:
Absolutely, Your Honor.

[00:22:20] Speaker 01:
To overrule Wang and find that the restatement applies, the court would have to essentially overlook decades of jurisprudence holding that ERISA's policy goals are extremely important

[00:22:37] Speaker 04:
So your point is that decision's already been made.

[00:22:41] Speaker 04:
We don't have to make it.

[00:22:42] Speaker 04:
We just have to follow Wang.

[00:22:46] Speaker 01:
Well, Your Honor, I do believe that Wang, the restatement approach, they both turn on reasonableness.

[00:22:54] Speaker 01:
Ellis, the 10th Circuit in Ellis explains this.

[00:22:57] Speaker 01:
And the court in Ellis held that focus on the primacy of the plan documents, the importance of an ERISA plan document, and explained that in the situation where you're dealing with a business that's located in the state

[00:23:15] Speaker 01:
whose law has been chosen, that the policy goals of uniformity, consistency, and encouraging businesses to provide group insurance for their employees, those policy goals cannot be ignored.

[00:23:34] Speaker 01:
federal court the congress enacted arissa for a reason and if a court if plan administrators are required to apply a patchwork of state laws that can run afoul of arissa's policy goals so i do back to the court's point your honor i do believe that issue's already been decided and in a situation such as this one where

[00:24:02] Speaker 01:
a handful of people are working for an employer based in another state that doesn't have a discretionary ban, it would not be proper to determine that California's interest is materially greater than another state's under those circumstances.

[00:24:23] Speaker 04:
It would be a real hometown decision if we did that, correct?

[00:24:26] Speaker 01:
It could be, Your Honor.

[00:24:28] Speaker 04:
I thank you.

[00:24:28] Speaker 04:
That's a good response.

[00:24:30] Speaker 04:
I appreciate it.

[00:24:30] Speaker 04:
Thank you.

[00:24:31] Speaker 01:
Thank you very much, Your Honor.

[00:24:34] Speaker 01:
And back to Wang, Your Honor, you were on the case that Wang followed.

[00:24:39] Speaker 01:
You were on the panel that decided Dempsey versus Norwegian cruise lines.

[00:24:44] Speaker 01:
And this case

[00:24:46] Speaker 01:
Wang and, uh, the cases prior to Wang are all based on Supreme court precedent.

[00:24:55] Speaker 01:
Uh, it should be followed in this case.

[00:24:56] Speaker 01:
The ninth circuit has a standard.

[00:24:59] Speaker 03:
And of course, after Wang, we then have the case that basically says that, um, in federal question issues, we follow federal law, federal choice of law.

[00:25:14] Speaker 03:
And that is after Wang.

[00:25:16] Speaker 03:
And that, of course, can be seen in tension with Wang.

[00:25:20] Speaker 03:
So do we have two conflicting cases?

[00:25:24] Speaker 01:
And Your Honor, I'm not sure which case in particular you're referring to.

[00:25:28] Speaker 01:
But if the choice of law, I do not believe we have tension, because we come back to the reasonable.

[00:25:39] Speaker 03:
Well, I think it's the Miller case, and it's decided

[00:25:44] Speaker 03:
in approximately 2017, so long after Wang, which basically said you apply in any federal question, you're going to use the restatement of conflicts of law to resolve that.

[00:26:00] Speaker 03:
Of course, ERISA is a classic federal question case.

[00:26:05] Speaker 01:
Yes, Your Honor.

[00:26:08] Speaker 01:
I am not familiar with that decision.

[00:26:10] Speaker 03:
Forget the decision.

[00:26:11] Speaker 03:
How about the principle?

[00:26:12] Speaker 01:
And that's where I was going, Your Honor.

[00:26:14] Speaker 01:
I think these principles can be reconciled because, again, because Wang and other cases that have followed Wang or enforced contractual choice of law provisions under ERISA have explained that it's critical to recognize

[00:26:32] Speaker 01:
The, the policy goals underlying Arissa, which is which, as the court notes is obviously an important federal question issue.

[00:26:42] Speaker 01:
I think the 10th circuit and Ellis.

[00:26:45] Speaker 01:
goes to great lengths to explain why it is so important to remain consistent with Congress's intention in enacting ERISA.

[00:26:57] Speaker 01:
I hope that answers your question.

[00:26:59] Speaker 03:
Do you know of another situation where there's a carve out for a specific federal statute like ERISA?

[00:27:10] Speaker 01:
I cannot say that I am your honor, although I don't I don't know if there is a carve out here in that You know the the tension exists because of the savings clause under Arissa, that's why we have this tension and Obviously that's why we're here today because we have a state California that has expressed its policy of wanting to ban discretion and

[00:27:40] Speaker 01:
Um, in ERISA plans, but many States haven't taken that step.

[00:27:45] Speaker 01:
Florida has not taken that step.

[00:27:47] Speaker 01:
Um, so I think that's why, um, we find ourselves in this position today.

[00:27:55] Speaker 01:
And I, and I don't know if, if there are other federal statutes that have a savings clause in such as ERISA does.

[00:28:04] Speaker 01:
I would also point out that this court has followed Wang.

[00:28:08] Speaker 01:
It followed Wang in the Fenberg case versus Cowden in which it reversed the trial court's decision to apply a de novo standard of review and remanded for application of the abuse of discretion standard of review.

[00:28:24] Speaker 01:
In addition to this court, three other circuit courts of appeal have enforced choice of law provisions and applied the abuse of discretion standard

[00:28:32] Speaker 01:
the Eighth Circuit in Brake versus Hutchinson, the Fifth Circuit in Jimenez versus Sun Life, the Tenth Circuit in Ellis, all upheld choice of law provisions and an abuse of discretion standard of review.

[00:28:53] Speaker 01:
The unfairness issue that appellant raised has been addressed by the courts.

[00:28:58] Speaker 01:
In Ellis,

[00:29:00] Speaker 01:
the appellant asserted that it would be unfair not to apply the law of the foreign state forum state and the Ellis the 10th in Ellis the 10th Circuit explained the arguments are unpersuasive and noted that the choice of law provision was clear on its face of the policy and that the Supreme Court has endorsed choices by ERISA plans to provide abuse of discretion review and citing concrete the court noted

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Granting deference to the administrator promotes efficiency, predictability, and uniformity.

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This is a unique issue for employers that have plans covering employees in multiple states.

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And as Guardian Zemeekis points out in its brief, in their brief, this is a growing problem.

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And it's all the more reason that the court should remain consistent with Wang and continue under the circumstances where it's not fundamentally unfair to apply an abuse of discretion standard.

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There is no reason to reverse the court's course in that regard.

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Appellant was not deprived of a fair and unbiased hearing by the trial court the suggestion in the reply brief that anytime an abuse of discretion standard of review applies that a claimant cannot get a fair and unbiased hearing is

[00:30:38] Speaker 01:
Frankly concerning in that it it disregards decades of Supreme Court and Ninth Circuit jurisprudence Applying the abuse of discretion standard of review There are tempered there is a tempered standard your honor judge McKinn Was on the court that decided a body and in that case the court explained that a heightened level of scrutiny might apply and

[00:31:07] Speaker 01:
Having to be governed by the state of Florida, the laws of the state of Florida, when appellant was working for a Florida company and was one of only a few individuals working in the state of California is not unfair.

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It's simply the standard that appellant didn't want to apply.

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That doesn't mean it's unfair.

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Fundamental unfairness would mean being deprived of a hearing altogether.

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And suggesting that it's fundamentally unfair to apply the abuse of discretion standard of review really does.

[00:31:46] Speaker 01:
Well, let's just let's just use this case as an as an example.

[00:31:50] Speaker 00:
Let's wrap it up because we're actually over time.

[00:31:52] Speaker 01:
Oh, your honor, my clock says 40 seconds.

[00:31:54] Speaker 01:
It's getting higher because we're passed.

[00:31:58] Speaker 01:
My apologies, your honor.

[00:31:59] Speaker 04:
You're using our time.

[00:32:00] Speaker 01:
Thank you for pointing that out.

[00:32:02] Speaker 01:
I'll just close on the fact that I don't think the court even needs to reach these issues because the policy language is so clear in this case.

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Thank you very much.

[00:32:11] Speaker 00:
I'll give you one minute, counsel.

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Hold on one second, let the timer catch up.

[00:32:19] Speaker 00:
Okay, now you may proceed.

[00:32:21] Speaker 02:
I'd like to make three points, Your Honor.

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First off, with respect, I mean, Guardians' counsel is, I mean, you can't argue two things at the same time.

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He's arguing that this court should enforce Wang.

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And it should, but Ellis, the 10th Circuit case, expressly rejected Wang.

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And so this court can't do this, you know, follow Ellis and at the same time be faithful to the decision in Wang.

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There's obviously a split in the circuit and Ellis not only just said it disagreed with the 9th Circuit, but it also

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Its view of the savings clause that was expressed by this court in Cisneros and Morrison is completely at odds.

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And so obviously the two circuits take a radically different approach to the intent of the savings clause.

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With respect to the California interest, the California interest is written into the statute.

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because it says that it applies to all California residents, regardless of where the policy issues.

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And there's no need to overrule Wang.

[00:33:27] Speaker 02:
I'm not suggesting that for a second.

[00:33:29] Speaker 02:
I believe that the language in Wayne is completely consistent with Section 187 of the Restatement, and I think that the two need to be harmonized.

[00:33:38] Speaker 02:
Thank you very much, Your Honors.

[00:33:39] Speaker 02:
I certainly appreciate the time and trouble.

[00:33:41] Speaker 00:
Thank you.

[00:33:42] Speaker 00:
Thank you to both of you for your briefing and argument in this case.

[00:33:45] Speaker 00:
This matter is submitted and this panel is finished.

[00:33:48] Speaker 00:
Judge Wallace and I will reconvene at 11 o'clock for the love case with a different judge as our third person.

[00:33:55] Speaker 00:
So thank you, Judge McKeown.