[00:00:01] Speaker 05:
Okay, we'll now take next case in our docket, 24-4052, JH versus Anthem Blue Cross, Life and Health Insurance.

[00:00:18] Speaker 05:
Mr. King, you can start.

[00:00:19] Speaker 05:
Let's wait till the courtroom clears.

[00:00:32] Speaker 04:
Good morning, Your Honors.

[00:00:34] Speaker 04:
Brian King for the plaintiff.

[00:00:37] Speaker 05:
Hold on a second, the door's closed.

[00:00:40] Speaker 05:
Please restart his clock, if you would.

[00:00:42] Speaker 05:
OK.

[00:00:43] Speaker 04:
Good morning, Your Honors.

[00:00:45] Speaker 04:
May it please the court, Brian King for the plaintiffs.

[00:00:48] Speaker 04:
This is a case that involves a couple of fairly narrowly focused issues.

[00:00:52] Speaker 04:
The underlying issue involves a young man who was treated at the Residential Treatment Center for Mental Health and Substance Use Disorders.

[00:01:01] Speaker 04:
He filed, we filed a case in district court in Utah just with one cause of action for wrongful denial of benefits.

[00:01:11] Speaker 04:
In response, Anthem, the insurance company, filed a motion to dismiss

[00:01:16] Speaker 04:
saying that the limitation of action language in the policy clearly established only one year, as opposed to three years.

[00:01:26] Speaker 04:
We argued that the language of the policy was ambiguous, that it was contradictory, actually.

[00:01:33] Speaker 04:
and that the statute of limitation language in the policy clearly established a three-year time frame for claims for wrongly denied benefits.

[00:01:47] Speaker 03:
It seems that your position proceeds from this understanding, I think the district court's interpretation did too, that you're bound by either the three or the one.

[00:01:59] Speaker 03:
And I'm wondering why it's not unambiguous that you would be bound by both because

[00:02:05] Speaker 03:
The limitations run from different events.

[00:02:09] Speaker 03:
Could you speak to that?

[00:02:11] Speaker 04:
Yeah, I can, Your Honor.

[00:02:12] Speaker 04:
One of the things that we talked about in front of the district court and in the briefing that you've got is the need for plan drafters, policy drafters, to provide clear, unambiguous information

[00:02:26] Speaker 04:
that gives plan participants and beneficiaries notice of limitations, restrictions, circumstances that could result in denial of their claim.

[00:02:35] Speaker 03:
And that could form a separate cause of action against Anthem, isn't that right?

[00:02:41] Speaker 03:
Yes, it could.

[00:02:41] Speaker 03:
And it's not at issue here.

[00:02:43] Speaker 03:
No, it's not.

[00:02:44] Speaker 03:
So if we don't think about the broader context, which I'm not suggesting is at all irrelevant, but it isn't a claim that you have raised, how would you answer my question about why we should

[00:02:56] Speaker 03:
proceed into the inquiry thinking that only one applies?

[00:03:02] Speaker 04:
I think that both can apply in answer to your question, Judge Rossman.

[00:03:07] Speaker 04:
The challenge is when you're a participant or beneficiary or a lawyer representing them, you are entitled to, under the ERISA notice and disclosure provisions, a clear statement from the plan sponsor and the drafters of the plan about circumstances that will result in a loss of benefits.

[00:03:26] Speaker 04:
One of those circumstances is clearly, hey, if you don't bring the claim within a year, you're going to lose your benefits or your chance to get your benefits, as opposed to three years.

[00:03:34] Speaker 04:
Your point illustrates, I think, a salient argument for the appellants, which is this language is unclear about when these two time frames apply.

[00:03:45] Speaker 03:
So that sort of goes to what we mean when we talk about the reasonable plan participants and what their understanding would be.

[00:03:53] Speaker 03:
Correct, Your Honor.

[00:03:56] Speaker 03:
Are we to understand that the reasonable plan participant in this case would understand that their plan could be used by Anthem in a non-ERISA, for non-ERISA employers?

[00:04:12] Speaker 04:
I don't believe that a reasonable participant would think that because these participants were part of an ERISA plan.

[00:04:20] Speaker 04:
That's undisputed.

[00:04:21] Speaker 03:
So even though this language and the plan itself makes reference to non-ERISA,

[00:04:26] Speaker 03:
claims and situations I suppose.

[00:04:31] Speaker 03:
These plan participants we should read as being the reasonable plan participant here is a reasonable plan participant who has an ERISA only plan and these claims

[00:04:42] Speaker 03:
could only be ERISA only claims, is that correct?

[00:04:44] Speaker 04:
Absolutely, Your Honor.

[00:04:45] Speaker 04:
And that's because this plan, undisputedly, is governed by ERISA.

[00:04:50] Speaker 04:
And that's part of the problem that the District Court went astray on, is talking about non-Section 502A plans.

[00:05:00] Speaker 04:
or claims that could be brought under non-Section 502 claims, and there are no such things.

[00:05:08] Speaker 04:
At least as to the claim in this case, there's certainly no such claim.

[00:05:12] Speaker 04:
The idea that you've got two separate provisions, one year and one a three year, and the three year applies to non-502A claims, and the one year applies to 502, and this is a 502 claim, that's problematic because there are no such non-502.

[00:05:30] Speaker 03:
So your position is that the three years

[00:05:33] Speaker 03:
for the provision that talks about the written proof of loss, that that applies to 502A claims that require a written proof of loss, which is your claim.

[00:05:44] Speaker 04:
Absolutely.

[00:05:45] Speaker 04:
An A1B claim is a claim that's brought under Section 502A, subsection one, subsection B, that talks about wrongfully denied claims.

[00:05:56] Speaker 04:
It's the workhorse of ERISA.

[00:05:58] Speaker 03:
OK.

[00:05:58] Speaker 03:
So then we've checked that box.

[00:06:02] Speaker 03:
Why doesn't it also apply the one year apply to you as well?

[00:06:06] Speaker 04:
Well, the one year claim does apply in the sense that

[00:06:11] Speaker 04:
It is a Section 502A claim that we are bringing in this case.

[00:06:16] Speaker 04:
The problem is that if you're the planned participant or beneficiary, why should you be stuck with the shorter of the two timeframes when there is language that unambiguously applies to your claim that says you've got three years from the time of proof of loss?

[00:06:29] Speaker 03:
What confuses me about your position is that it seems to rely on some relief on a claim you did not bring.

[00:06:40] Speaker 03:
So in other words,

[00:06:41] Speaker 03:
It seems that we're understanding this is an ERISA plan.

[00:06:45] Speaker 03:
That's it.

[00:06:46] Speaker 03:
No, we're not talking about non-ERISA claims.

[00:06:47] Speaker 03:
Maybe the district court misunderstood.

[00:06:51] Speaker 03:
You agree the three-year applies.

[00:06:52] Speaker 03:
You're bringing a claim that requires a written proof of loss.

[00:06:55] Speaker 03:
You agree that 502A of ERISA applies to you, so the one-year applies.

[00:07:01] Speaker 03:
And what makes your position availing, if I understand it correctly,

[00:07:05] Speaker 03:
is that anthem should have made it clear what which one of which one are we talking about but that's relief that seems to be attended to a claim you did not bring well but why is that what am i wrong about that i think so and for this reason

[00:07:20] Speaker 04:
When we brought this claim, we didn't bring a claim saying, hey, it's three years and one year, there's ambiguity, you violated ERISA's notice and disclosure requirements.

[00:07:30] Speaker 04:
It's in response to the motion to dismiss that we say, hey, you've got contradicting language here.

[00:07:36] Speaker 04:
You don't have language that clearly tells whether it's one year or three years.

[00:07:40] Speaker 04:
And under those circumstances, the 10th Circuit is very clear in its precedent that insureds get the benefit of the more lenient provision.

[00:07:50] Speaker 04:
They get the benefit of when there's ambiguous language, language that favors coverage.

[00:07:55] Speaker 04:
The Childs case says it's not a lot of act to ask that when these insurers draft these plans that they do so precisely, that they do so clearly, that they do it in a way that doesn't mislead people.

[00:08:05] Speaker 05:
It seems to me you're reading these limitations periods as saying you can bring this any time within three years of this event, and you can bring it any time within one year of this event.

[00:08:19] Speaker 05:
That's not what it says.

[00:08:20] Speaker 05:
It says you can't bring it more than three years after this event, and you can't bring it more than a year after this other event, which is the point I was very pleased to hear.

[00:08:33] Speaker 05:
That was a nice clarifying question to start it off.

[00:08:36] Speaker 05:
They're not inconsistent.

[00:08:37] Speaker 05:
They have two time limits.

[00:08:39] Speaker 05:
And it says you have to do it within three years of this event, and you also have to do it within one year of this event.

[00:08:44] Speaker 05:
So if one of those is not satisfied, you can't bring the claim.

[00:08:48] Speaker 05:
You're reading it, as I said, to actually give you permission to file within three years.

[00:08:54] Speaker 04:
I would agree, your honor, that if you read them as both applying, we qualify under one and we don't qualify under the other.

[00:09:03] Speaker 04:
No, you don't qualify.

[00:09:04] Speaker 05:
But the problem with that is it's not that you're qualified under one.

[00:09:08] Speaker 05:
It's you're not banned by one, but you are prohibited by the other.

[00:09:12] Speaker 05:
That's the proper way to read these provisions, I think.

[00:09:16] Speaker 04:
Well, I disagree in the sense that we made the argument, I think persuasively, that the more specific provision is the language, the first two sentences of the language, which is we're talking about an action

[00:09:30] Speaker 04:
that can be brought, a legal or equitable action that can be brought involving a written proof of loss.

[00:09:36] Speaker 04:
That specifically talks about a wrongful denial of benefits claim.

[00:09:40] Speaker 03:
I agree with you.

[00:09:41] Speaker 03:
I think there's a reasonable reading that that is more specific if we're only talking about ERISA claims.

[00:09:45] Speaker 03:
The problem is that if we agree that both apply to you, why are we invoking a canon of general over specific?

[00:09:55] Speaker 03:
Why does that even apply here?

[00:09:58] Speaker 03:
Because what that does

[00:10:00] Speaker 03:
Is it's in service of deciding well which one applies?

[00:10:04] Speaker 03:
But they both your both applied you well arguably they do both apply We argue that one is more specific than the other but what does that do that so that that contractual left tool that?

[00:10:14] Speaker 03:
Contractual interpretation what does that do here if we don't need to pick?

[00:10:19] Speaker 04:
Well, I think you do need to pick simply because we're talking about what?

[00:10:24] Speaker 04:
the reasonable plan participant is what the reasonable expectations are going to be and whether there is ambiguity in this language.

[00:10:31] Speaker 03:
So would you want us to write an opinion that says the three-year applies, the one-year applies, they both can apply, we're not picking one.

[00:10:44] Speaker 03:
but that that makes this ambiguous for the ordinary, or the, I guess it's reasonable, plan participant.

[00:10:52] Speaker 03:
And under those circumstances, we would invoke this general over the specific canon, or specific over general, and we would then find ourselves in the three years.

[00:11:01] Speaker 03:
Is that how your analysis proceeds?

[00:11:03] Speaker 04:
That's one way to get there, and I'm fine with that, Your Honor.

[00:11:06] Speaker 03:
I'm sure that you would be fine with that.

[00:11:07] Speaker 05:
There are other ways.

[00:11:08] Speaker 05:
You can say thank you.

[00:11:10] Speaker 04:
Exactly, Your Honor.

[00:11:11] Speaker 04:
Thank you, Judge Rosman.

[00:11:14] Speaker 04:
No, I think there are several problems with the court's analysis here.

[00:11:18] Speaker 04:
But I've got four minutes left.

[00:11:20] Speaker 04:
I'll reserve the time to respond to my colleagues' comments.

[00:11:42] Speaker 00:
Good morning and may it please the Court.

[00:11:44] Speaker 00:
Nathan Marigold from Troutland Pepper Lock on behalf of Anthem Blue Cross Life and Health Insurance Company.

[00:11:51] Speaker 00:
As the panel has noted, the issue before the Court really is a fairly straightforward question of whether, where the one-year limitation provision by its plain language applies to plaintiff's claims, does the presence of this three-year period as plaintiff's search render ambiguous or otherwise inapplicable

[00:12:12] Speaker 00:
one-year period and the use are inapplicable.

[00:12:15] Speaker 00:
The answer is no.

[00:12:17] Speaker 00:
And the district court correctly concluded the plaintiff's claims were barred by the one-year statute of limitations.

[00:12:22] Speaker 03:
Didn't the district court just really get off on the wrong foot by assuming that there's a universe of non-502A claims?

[00:12:33] Speaker 00:
As to this plaintiff, yes.

[00:12:35] Speaker 03:
Yes.

[00:12:36] Speaker 00:
Yes.

[00:12:40] Speaker 00:
The point that we make about the availability of non-502A claims really goes to the question about sort of explaining why this would have been drafted in this way and why it doesn't create... But Anthem isn't suggesting that a reasonable plan participant with an ERISA plan needs to understand that non-ERISA claims might be arbitrable or something like that.

[00:13:02] Speaker 03:
Not to read the fine print of the agreement.

[00:13:04] Speaker 03:
You are not insisting on that position, right?

[00:13:07] Speaker 00:
No, Your Honor.

[00:13:07] Speaker 00:
No.

[00:13:08] Speaker 00:
And really, we think the most straightforward way for the court to address this is really the way that you brought out in your questions to Mr. King, which is these are really provisions that they run from different periods and for different periods.

[00:13:24] Speaker 00:
And thus, whether or not they apply to different subject matters, they actually can coexist.

[00:13:29] Speaker 00:
There is no conflict between these provisions.

[00:13:31] Speaker 00:
saying a claim must be brought within three years of the proof of loss and saying a claim must be brought within one year of the subsequent grievance and appeals decision simply applies two requirements, two timeliness requirements to the lawsuit.

[00:13:46] Speaker 02:
Isn't the first a statute of repose and the second is the statute of limitations?

[00:13:50] Speaker 00:
Essentially, Your Honor, yes.

[00:13:51] Speaker 02:
I mean, that's the only way you can get there because if you're, as I understand the plaintiff's argument, there's

[00:14:01] Speaker 02:
two statute of limitations within one paragraph, and you get to choose which statute of limitations you want to go by, which is nonsensical.

[00:14:14] Speaker 02:
The only way it makes sense is if you have a statute of repose, which isn't really an issue here because you weren't longer than three years from the time written for the proof of loss, and you have a statute of limitations that's very specific.

[00:14:28] Speaker 02:
I mean, you didn't really make that argument that way, but that's what I think you're saying?

[00:14:34] Speaker 00:
Your Honor, I believe I actually did present the argument that way in a brief.

[00:14:36] Speaker 02:
Well, yeah, okay.

[00:14:38] Speaker 02:
I know you talked about a statute reposed, but I didn't think you connected it like that.

[00:14:42] Speaker 00:
Well, and perhaps it was an artful drafting, but that is our position, yes, that you have the three-year period behaves like a traditional statute reposed.

[00:14:51] Speaker 00:
These are obviously not statutes because they're contractual provisions, but you have

[00:14:56] Speaker 00:
this period that runs from not the, you know, the breach or the, you know, the injury causing event, it runs from a set predetermined, you know, period.

[00:15:08] Speaker 00:
This is whenever the, you know, under the plan, the proof of loss is required 90 days after or within 90 days after the services are received, right?

[00:15:17] Speaker 00:
And then that requires a complete plan be submitted to Anthem.

[00:15:21] Speaker 00:
Subsequently, through the claims procedure, there's an opportunity and it makes a decision.

[00:15:25] Speaker 00:
There's an internal appeal and it makes its final appeal decision.

[00:15:29] Speaker 00:
Those are all listed at 209 of the record, if that's helpful for these ERISA plans.

[00:15:35] Speaker 00:
Once that final decision is made, that's the point at which the plaintiff has an injury as to enter.

[00:15:41] Speaker 03:
How is a reasonable plan participant supposed to know the difference between a statute of repose and a statute of limitations?

[00:15:47] Speaker 00:
I think a reasonable plan participant could read and

[00:15:50] Speaker 00:
the provision that says it must be brought within three years and it must be brought within, and if it's the specific type of claim, it must be brought within one year?

[00:15:57] Speaker 03:
You can't rely on the specific now.

[00:15:59] Speaker 03:
That doesn't work if you're saying both apply.

[00:16:01] Speaker 03:
Well, but I mean, it says... It's just a specific for the three year.

[00:16:04] Speaker 03:
It's a written proof of loss that's required for denial benefits claim under 502A.

[00:16:08] Speaker 00:
So I think a plan participant will read and say, well, it's a legal acquittal action against the plan that requires a proof of loss, must be brought within three years.

[00:16:16] Speaker 00:
It's also an ERISA 502A claim, must be brought within one year.

[00:16:20] Speaker 03:
That's maybe a reasonable reading, but it's not the only reasonable reading.

[00:16:23] Speaker 03:
It just seems that from a reasonable plan participant's perspective, which is the perspective we are required to approach the case with, your argument, your most availing argument, relies on this distinction between a statute of repose and a statute of limitations, which is a highly technical reading of something that should be clear, and it's your responsibility to make it clear.

[00:16:50] Speaker 00:
And excuse me, I'm not sure that I'm not sure that the reasonable plan member needs to understand the distinction between those two things.

[00:17:04] Speaker 05:
What's so hard about reading the two provisions and saying I have to satisfy both these conditions to file suit?

[00:17:13] Speaker 05:
I don't see what's complicated.

[00:17:15] Speaker 05:
I don't care whether you call it a statute of limitations, statute of proposed contractual requirement.

[00:17:20] Speaker 05:
There are lots of things where you can't sue unless several things are satisfied.

[00:17:25] Speaker 05:
And here, there are two things.

[00:17:26] Speaker 00:
Yes.

[00:17:27] Speaker 00:
I think that's correct.

[00:17:28] Speaker 00:
I don't think that the member needs to understand the difference between a proposed and limitations period.

[00:17:32] Speaker 00:
I think the member just needs to recognize there are two periods that both apply to the type of claim they would like to bring, and they have to comply with both of them.

[00:17:40] Speaker 00:
And that requires them to apply.

[00:17:43] Speaker 05:
And is there any ambiguity about saying it has to be three years after you file a claim?

[00:17:49] Speaker 05:
And then it has to be, or is there any problem with reading, you have to file within one year of the denial of benefits after all appeals?

[00:17:57] Speaker 00:
I don't see any ambiguity there, Your Honor, no.

[00:18:04] Speaker 00:
The other point I would make about Anthem's responsibility to draft this clearly, as the court noted,

[00:18:13] Speaker 00:
And we don't dispute that that is a requirement.

[00:18:16] Speaker 00:
We believe that this is drafted in an unambiguous fashion, imposing two requirements that a claimant must comply with if they are bringing under risk of Section 508 claim.

[00:18:28] Speaker 00:
And the other piece is this is not something that the appellants in their brief, they talk about this obligation, but they don't argue this in their open brief as a basis for reversing the district court's decision.

[00:18:43] Speaker 00:
So to then on their reply say, well, Anthem has failed to demonstrate its compliance with this fiduciary obligation.

[00:18:50] Speaker 00:
To the extent that is a basis for overturning this court's decision, we think it was waived.

[00:18:55] Speaker 03:
So I'm not sure I follow.

[00:18:58] Speaker 03:
Are you contending that the notion of Anthem's fiduciary obligations and how they fit into this case

[00:19:08] Speaker 03:
is an argument that can be waived and advanced.

[00:19:11] Speaker 03:
I mean, I did understand it.

[00:19:13] Speaker 03:
I appreciate Appellant's response, and I have to think about it more, but that it's not derived from bringing a specific kind of claim that's not at issue here.

[00:19:21] Speaker 03:
It seems that you're saying we should still think about it, even though this was not a case about Anthem's fiduciary obligations or a challenge to Anthem's failure to meet its fiduciary obligations.

[00:19:32] Speaker 00:
I think the opposite.

[00:19:32] Speaker 00:
I think we're saying you shouldn't consider it, because to the extent

[00:19:35] Speaker 00:
plaintiff or sorry, the appellants have sort of argued that this is highly relevant to your determination in the reply brief.

[00:19:43] Speaker 00:
You think they waived it by not making the decision.

[00:19:44] Speaker 03:
But my point is that I think you're saying it's an argument that can be waived and I'm thinking about it in terms of it's a claim that they may have, they could have alleged but they didn't.

[00:19:58] Speaker 03:
Which is the right way to look at it I guess.

[00:19:59] Speaker 00:
Well and it may be both.

[00:20:01] Speaker 00:
I haven't looked at whether

[00:20:03] Speaker 00:
the extent to which it would be a standalone cause of action.

[00:20:06] Speaker 05:
And you're talking about the briefs on appeal.

[00:20:07] Speaker 05:
Correct.

[00:20:08] Speaker 05:
It wasn't raised in the opening brief.

[00:20:09] Speaker 05:
It was?

[00:20:10] Speaker 05:
Okay.

[00:20:10] Speaker 00:
Yeah.

[00:20:11] Speaker 00:
And really, the appellants addressed it.

[00:20:13] Speaker 05:
Had it been raised below?

[00:20:14] Speaker 00:
I think in the same fashion that it was discussed as sort of, you know, Anthem's obligation.

[00:20:23] Speaker 00:
And I believe the argument made below was that what it stood for is in the event that the court found an ambiguity that it should read it in favor of the plaintiffs.

[00:20:33] Speaker 00:
But that was how it was used below.

[00:20:36] Speaker 03:
But would you agree that you're seeking an affirmance on alternative grounds here because you're no longer really defending the district court's reasoning in support of its disposition?

[00:20:48] Speaker 03:
Is that fair?

[00:20:50] Speaker 00:
Yes.

[00:20:51] Speaker 00:
I think the best way we think to affirm would be on an alternative ground.

[00:20:54] Speaker 03:
Yes.

[00:20:55] Speaker 03:
And was this question litigated below the question, quite differently, not the question,

[00:21:01] Speaker 03:
these arguments about the distinction between a statute of repose, statute of limitations, or leaving aside the labels, both apply.

[00:21:08] Speaker 03:
Was that litigated before the district court, or is this just new on appeal?

[00:21:12] Speaker 00:
The limitations reposed, distinction was not litigated below that.

[00:21:17] Speaker 03:
Because everyone seemed to have proceeded from this assumption that only one applies.

[00:21:20] Speaker 03:
You have to pick, is it three, is it one?

[00:21:22] Speaker 03:
Is that fair?

[00:21:24] Speaker 00:
I don't know that we briefed it that way.

[00:21:26] Speaker 00:
I mean, my understanding has been

[00:21:29] Speaker 00:
Anthem's position is that they can both apply.

[00:21:32] Speaker 00:
I do think the district court understood or at least analyzed the issue as being selecting one which should apply.

[00:21:39] Speaker 03:
And I guess my questions are going to, if we are going to treat this in your favor, if that's how the decision comes out, as an affirmance on alternative grounds, are the sorts of things we think about when we're deciding whether it's fair to do that, are those satisfied here in favor of Anthem?

[00:21:56] Speaker 00:
are the reasons for affirming alternative grounds?

[00:22:00] Speaker 03:
Not the legal merits, the equitable reasons.

[00:22:02] Speaker 03:
Has this been squarely put to the district court?

[00:22:05] Speaker 03:
Has everyone had a chance to brief the question?

[00:22:08] Speaker 00:
So I think my answer to that would be

[00:22:15] Speaker 00:
You know, we have maintained that they both can apply.

[00:22:22] Speaker 00:
Certainly, the argument for affirmance is based on something that is apparent.

[00:22:26] Speaker 00:
It's not just apparent in the record.

[00:22:27] Speaker 00:
It's apparent on the face of the document.

[00:22:29] Speaker 00:
And so, I mean, yes, we think this is something that the court would be justified in affirming on the basis.

[00:22:42] Speaker 00:
Because it's really a question of contractual interpretation, right?

[00:22:45] Speaker 00:
at the end of the day, which is a purely legal issue.

[00:22:49] Speaker 05:
I'm getting a little confused.

[00:22:54] Speaker 05:
I gather that your position below was that the provision setting the one-year limit applied and was enforceable in this case.

[00:23:03] Speaker 05:
Is that right?

[00:23:04] Speaker 05:
Yes.

[00:23:06] Speaker 05:
And the judge agreed.

[00:23:08] Speaker 05:
And that's what you're arguing on appeal.

[00:23:10] Speaker 05:
Yes.

[00:23:13] Speaker 05:
where you think he may have goofed, and I would agree, is he said, I have to choose between the two, and the one year is the one that applies here.

[00:23:23] Speaker 05:
You're saying, regardless of whether the three year applies, the one year applies, and you should affirm on that ground.

[00:23:31] Speaker 05:
Am I understanding things correctly?

[00:23:33] Speaker 00:
Yes.

[00:23:34] Speaker 00:
I think our position is that the one year applies and the presence of the three year, because I also think it's undisputed that the three year wouldn't be implicated under these facts, right?

[00:23:43] Speaker 00:
that the presence of the three-year does not render the one-year ambiguous or otherwise prevent its application because it applies to a different context.

[00:24:00] Speaker 02:
Well, you essentially agreed as I read what happened below is you essentially agreed with the concept that these were somehow two separate statutes of limitation and you tried to explain how that could be and the district court and I think you argued

[00:24:13] Speaker 02:
So you would look at the more specific one, the one-year one versus the three-year one, which to me is nonsensical, the idea that you would have two statute of limitations and you would look to the more specific.

[00:24:25] Speaker 02:
And I don't think any of that body of case law and that canon of construction applies if you were talking about statutes of limitation, that you would have to choose a more specific statute of limitation.

[00:24:37] Speaker 02:
None of it makes sense unless you think of it as what it is, which is a statute of repose, which

[00:24:43] Speaker 02:
is not problematic here because the three years isn't implicated.

[00:24:48] Speaker 02:
And it reads that way.

[00:24:50] Speaker 02:
But no one seemed to do that below, which is what threw me from the beginning is why we were talking about these as though they were two separate statute of limitations of which you could pick and choose.

[00:25:10] Speaker 05:
Why couldn't you have both these sentences in the same paragraph?

[00:25:15] Speaker 05:
There are statute limitations that say you have to do this within three years of this or two years of this or one year of this and whatever.

[00:25:24] Speaker 05:
Or they say within, they might say within three years of this or one years of discovery or 20 years after the person reaches majority or all sorts of things in one statute.

[00:25:39] Speaker 05:
Is there any reason they couldn't have been both put in the same place?

[00:25:43] Speaker 00:
Well, I mean, they are in the same paragraph.

[00:25:45] Speaker 00:
I think one follows three sentences after the other.

[00:25:49] Speaker 00:
Oh, really?

[00:25:50] Speaker 00:
Yeah.

[00:25:51] Speaker 00:
In terms of whether they can be statutes of limitations that, you know, choreographed different events and provide different periods, I'm not sure that they're... What's in between the two?

[00:26:06] Speaker 00:
So the description of the three-year period,

[00:26:09] Speaker 00:
the type of claims that may be brought to three-year period.

[00:26:18] Speaker 00:
I'm not sure.

[00:26:18] Speaker 00:
There may be one other sentence and then it proceeds to the requirement that a 502A claim must be brought within one year.

[00:26:26] Speaker 00:
And I think to address your point, I'm out of time, but would you like me to

[00:26:32] Speaker 00:
I do think even if they are viewed as statutes and limitations, both, they could coexist together, because as you noted, there are plenty of statute and limitations that impose different requirements.

[00:26:45] Speaker 00:
Thank you.

[00:26:47] Speaker 00:
I think you have four minutes.

[00:26:54] Speaker 04:
Thank you.

[00:26:55] Speaker 04:
I want to go back.

[00:26:57] Speaker 04:
I certainly recognize the distinction between a statute of repose and a statute of limitation, and would agree that the language in the first part of this provision that we're looking at, the three-year language, is framed as a statute of repose, whereas the last sentence that says, if you're bringing a civil action, you must bring it within one year of the grievance or appeal decision.

[00:27:18] Speaker 04:
That's why, to get to your point, Judge Rosman,

[00:27:22] Speaker 04:
In response to the motion to dismiss, the very first argument we raised was, this language is not written in compliance with ERISA's notice and disclosure requirements.

[00:27:32] Speaker 04:
The struggles that the panel's having illustrate, this is something that attorneys can work through and say, OK, we get the distinction between a statute of repose or repose language and limitation language.

[00:27:44] Speaker 04:
It's not reasonable to say to an ordinary person who is just working at X company, hey, you need to get this distinction.

[00:27:52] Speaker 04:
There's three years, and there's one year referenced in the same paragraph.

[00:27:55] Speaker 05:
What is so hard about that?

[00:27:56] Speaker 05:
They're not lawyers.

[00:28:01] Speaker 05:
Ordinarily intelligent human being whose mind is not encumbered by having gone to law school.

[00:28:07] Speaker 05:
Would they not read this as saying, if I'm going to file this, I've got to do it within three years of filing my claim and with one year of getting the result.

[00:28:19] Speaker 05:
where I'm confused is I don't see why there's any confusion.

[00:28:22] Speaker 05:
It seems to me you don't have to know any law to see that.

[00:28:27] Speaker 02:
And particularly where the last line is consistent with the notice that they receive which says you have to bring your live vote to a section, you have to bring it within one year and then they look at this

[00:28:41] Speaker 02:
And they say, huh, if you bring a civil action under Section 502A, which this is and which I've been told that I would have to bring within one year, you must bring it within one year.

[00:28:52] Speaker 03:
But it also tells you if it's longer.

[00:28:54] Speaker 03:
It does.

[00:28:54] Speaker 02:
Well, it tells you no such action can be started later than three years.

[00:28:59] Speaker 04:
That letter says, or you may have a longer period

[00:29:03] Speaker 04:
look to the terms of the plan.

[00:29:04] Speaker 03:
That is true.

[00:29:05] Speaker 04:
Now that's the confusion.

[00:29:07] Speaker 02:
That's the confusion.

[00:29:08] Speaker 02:
If there's confusion, that's it.

[00:29:08] Speaker 03:
Council, can you help me understand how to use your argument in an opinion for you, because I still don't see the path.

[00:29:17] Speaker 03:
And what I mean by that is, if we agree that both can apply, we agree that this is only an ERISA plan, and we agree that the ordinary plan participant, for whatever reason, would not be able to decipher that both apply.

[00:29:32] Speaker 03:
You want us to say that the reason you prevail is on account of Anthem's failure to comply with its disclosure obligations.

[00:29:42] Speaker 03:
How can we do that when that's not a claim in the case?

[00:29:45] Speaker 04:
Well, you get under 502A an appropriate, you have the ability to bring, ask for appropriate equitable relief.

[00:29:53] Speaker 04:
And we didn't know that we were going to need the type of appropriate equitable relief you're alluding to, Your Honor, until we saw the motion to dismiss.

[00:30:03] Speaker 04:
That's why we never brought a claim.

[00:30:05] Speaker 04:
We didn't think we were going to have to come in and fend off a motion to dismiss.

[00:30:09] Speaker 03:
Could you have amended your complaint?

[00:30:11] Speaker 04:
We could have, in response to the motion to dismiss, sure.

[00:30:16] Speaker 04:
I suppose we could have.

[00:30:17] Speaker 04:
Well, we did not do that.

[00:30:18] Speaker 04:
But there's no question, Your Honors, that we raised this issue about the notice and disclosure requirements before both the district court and, of course, in our briefing before this court, as you know.

[00:30:29] Speaker 04:
So I think that's a critical point.

[00:30:31] Speaker 04:
I'm troubled by the fact that neither the district court nor Anthem says a peep, not a word, about it.

[00:30:39] Speaker 04:
in this for this court and before briefing down there.

[00:30:42] Speaker 04:
And look, with all due respect, Your Honors, when you say, well, God, can't you read?

[00:30:47] Speaker 04:
No.

[00:30:48] Speaker 04:
Look, the difference between a statute of limitations is something that you learn in your second or third year of law school, and some people still struggle with it.

[00:30:58] Speaker 04:
I struggle with it.

[00:31:00] Speaker 04:
I don't know.

[00:31:02] Speaker 02:
I'm not talking about the labels that we put on it.

[00:31:04] Speaker 02:
I'm talking about the

[00:31:06] Speaker 02:
very specific language, which is if you bring a civil action under Section 502A, which they do understand that is what they are bringing.

[00:31:14] Speaker 02:
You must, MUS team must bring it within one year.

[00:31:18] Speaker 02:
And they've already been told that.

[00:31:19] Speaker 02:
I don't think that's confusing.

[00:31:21] Speaker 02:
I think that line is what they read.

[00:31:24] Speaker 02:
And the idea that they would somehow go, well,

[00:31:26] Speaker 02:
It says I must bring this action within one year and my notice also said that but maybe But it refers me back to the plan But it opens the door to say unless the plan gives a longer period the notice does you know?

[00:31:41] Speaker 04:
Yeah, and the plan does talk about three years, so there's where the confusion is.

[00:31:46] Speaker 04:
Thank you.

[00:31:46] Speaker 04:
Thank you very much, counsel.

[00:31:49] Speaker 04:
Case submitted, counsel, excuse me.