We're having here argument in number 13 1888 moon versus BWS technology. Here's to. Good morning. Good morning. Good morning. Police is the court. My name is Sid Kirsten. I'm here on behalf of Judy Moon. individually and it's executive of our husband Leslie Moons estate. As court probably as well aware this is an appeal from an arrest a case that was dismissed on a 12 B6 motion to dismiss for any discovery had occurred in the case on the. basis that the former employer of Mr. Moon B W X T as a matter of law was not and could not be a it risk of fiduciary and we certainly concede that you have to be a fiduciary or a plan administrator or plan sponsor perhaps I'm not maybe going to look too far but to be a proper defendant but we contend that in this case the former employer of Mr. Moon which is B W X T was a proper iris of fiduciary and I will point out at the outset this is an unusual iris a case you know it started in state court it was remanded this court found on appeal that it was intercomly related to an iris a plan and held at the federal courts had jurisdiction under a risk and we went back a motion was filed at that point time for the district court saying that B W X T is not a plan fiduciary and the court accepted that now. It is a former employee the state sue and a former employer over benefits that arose on a post employment basis and those factors are not your typical iris a type case and they do give rise to little twist in terms in consturing this under a risk that you don't see in the normal iris a case but as far as the I'll call it the procedural issue of whether or not B W X T was a proper iris a fiduciary let me say at the outset the only entity that Mr. Moon and Mrs
. Moon have a dealt with was B W X T the only entity that have a dealt with so that is a significant factor the court needs to consider in a value waiting could it be an iris a fiduciary because they have the only ones we dealt with this court has held it's intergoly related to an iris a plan and the only entity we dealt with was B W X T. What provision of iris a did they violate? Well several breach of the name one breach of fiduciary duties number one. It's a remedy under the rest of it. What provision when you have a remedy you have to have a right first one so what provision of erissa let's go beyond this business about whether they are a trustee or not what provision of erissa did they violate? E Rissa requires that the fiduciary deal in good faith with the planned participants and that they have planned benefits provided and when planned benefits are provided that they honor those planned benefits and in this case it is an unusual posture but there were planned benefits offered on a post petition basis at least that's our allegation and on a 12 B 6 motion the district court and this court have to accept the allegations as true and accurate for purposes of a 12 B 6 motion. We look at the iris a plan right? Not in this context completely no ma'am. We've already determined that this is an erissa case and this court has already established a Supreme Court has already established in Amara and McCutchen that in the event that the planned terms do not specifically prohibit a particular claim that that particular claim can be filled in through equitable principles and in McCutchen it was filled in through a common law rule of the common fund doctrine that an attorney who goes out and collects our common fund is entitled to be paid out of the common fund and in this case we are simply saying that there are common law principles i.e. equitable stop all being one that would have stopped BWXT from denying that it is obligated on a claim that it offered and the offering seems to be. There has to be every that's the same question Judge Moss has to be an underlying basis upon which you ground the claim but what is that? The underlying basis was established by this court when this court said that it is inter-gly related to an erissa plan. It didn't say the claim was part and parcel of the written erissa plan and it's certain we couldn't have because the erissa plan as we all know says that it no longer applies once you are terminated. So we are stuck with that but in the context of trying to come up with some type of equitable remedy the law does allow and we are certainly pursuing that claim that when promises have been made on a post-employment basis even though the plan says there are no benefits available life insurance unless you convert within 31 days. The plan doesn't say that the employer itself cannot make promises, collect premiums, collect a final premium even after death knowing or should know full well that there is an obligation assertive with that and that the employer can be held responsible for that. In the prior decision from this court it said far from indicating an independent post-employment contract or benefits the documents on which the tenant relies all plainly demonstrate that her claim stems from nothing more than Mr. Moons and Rollman and the run of the mail and fully benefit plan
. I'm still not sure what you base to apply an equitable remedy there has to be an underlying basis either in the statute or something else if you can identify it gives you a ground for the claim. And it pays 89 of the joint appendix the court went on to say the merits of Mr. Moons equitable and breach of a dictionary claims are less clear citing the Amara case and now the McCutchen case that follows that. And so this court I think was basically saying a strict reading under the plan you didn't convert them 31 days you don't have a claim. But... Then you have to point to the plan and say why there should be an equitable remedy under the plan and that's what we're trying to tease out from you. You can't just say okay well that means because at least I don't read the opinion of saying that. The plan does... It doesn't mean that we just scoop the plan and you get some equitable relief. The plan does say at page 42 as an SPD it's not the plan terms itself that that's in the other appendix we didn't include that
. That the description of this life insurance benefit is not intended as an employment contract or guarantee. The plan sponsors there's a right to modify a man suspend a terminate the plan at any time. Now the plan sponsors stated to be McDermott incorporated and there seems to be an argument that McDermott international incorporated is not the same as McDermott incorporated. We haven't had an opportunity to explore that because no discovery has occurred. However the plan does indicate on its face that it can be modified at any time. And we simply say that the plan was modified in this context when BWXT took it upon itself to... But BWXT is not reading from the same thing you were reading from J-42. They're not the plan sponsor or the plan administrator. They may not be but they may be one in the same. They may be one in the same. We don't know because discovery hasn't occurred. We don't know that for certain
. They're not stated on the face of that. I agree with you certainly. But we have been thrown out before any discovery occurred in this particular matter. But my point was that the plan clearly provides that it can be changed and modified. And the plan doesn't address and doesn't preclude post-employment modifications by BWXT itself. And in this case that we submit and we've argued that there was a post-employment modification by BWXT itself. It may not have been wholly intentional and I'll recognize that point. But the point is once it started receiving the premiums and then even after this man's death once it accepted $1,700 in a lump sum premium payment to complete all payments. At that point in time, equitable, stompal, reformation, search, and other equitable remedies came into play to enforce the obligations of the ex-employer. Otherwise the ex-employer is allowed to take money without any concern for any ramifications for that and not advise the ex-employee that your payments are not going to help you in this regard. Because you don't have any coverage and we're not acquiring any coverage for you. Although they might have, we don't know that because no discovery has occurred. And then denying coverage when the man dies during the year 2006 during which all the premiums were being paid and received. Let me try one more time
. It seems to me pretty clear the Supreme Court has said you can't substitute equitable remedies for the plan. The only thing the equitable remedies give you right to is that the plan is somehow unclear. Okay, so where is the plan here unclear? It's not only unclear, it's if the plan has gaps or incompleteness as a certain issues. And in this case the plan had gaps and incompleteness as to post employment offers or benefits by BWXT and it doesn't preclude those. So it's regular contract laws. If you if you have a contract that's it and you don't amend it orally. Right? You have a written bond contract. That's what this is. But a RISSA is not an ordinary contract. A RISSA is governed by trust law provisions as you know. And those trust law provisions are engrafted into a RISSA. And the employer is responsible under trust law if it receives money to make sure that money is held and used in the proper manner. And I think this case is determined. I don't have a lot of time
. But let me quickly by the definition of an RISSA fiduciary. And that is found under 29 US code 1002 sub part 21. And there are two parts there. It says in sub part 1 which is consist of two alternate that anyone who exercises discretionary authority or discretionary control regarding the management of the plan. In this case the plan would be the offer to Mr. Moon becomes an RISSA fiduciary. And more importantly the second part of sub part 1 says that anyone who exercises any not discretionary but any authority or control respecting the disposition or the management of the assets becomes. And a RISSA fiduciary and in a RISSA fiduciary can be a name fiduciary or in a RISSA fiduciary can be a de facto fiduciary. And in this case BWXT became a de facto fiduciary as to Mr. Moon's offer of benefits because they got the money, they managed the money, they held the money, they disposed of the money and no one else was involved. So on that basis alone they automatically became a de facto fiduciary as to the plan or the offer of benefits they made to Mr. Moon on the post employment basis. And I was offered to read your plea to you that Kled and Argy that there were two events that created some relationship with the employer and your client. One was collecting premium money
. No sir, I don't say that. One was receiving it and managing it and controlling it. The district court said all we did all BWXT was collected. We alleged that they not only collected it but they received it, they managed it, they handled it, they disposed of it, they received the money. It wasn't passed along to MetLife or anybody else. So we didn't just collect the money when a lot further we managed the money which is what the definition says. If you dispose or manage the assets, you are a de facto or a fiduciary, have you want to scrap it. Then the other aspect which the district court totally ignored was they made the decision themselves to deny the claim. We submitted the claim to BWXT not to anyone else. They said they investigated it, they came back with a letter which said well we've investigated it and you didn't file your, you didn't convert from 31 days. That's a very clever and sleek way of, of a paragraph of your second amendment proposed second amendment complaint alleges management and retention of the public. They denied the second amended complaint so we haven't gone to that one yet but let me see if I can find it. We said that all monies were paid to them. I'm on page 116 which is the second
. The second amendment complaint. Yeah paragraph 23 page 116 defendants accepted all payments shown on Exhibit C without objection or exception never advised Mr. Moon during his lifetime the benefits were not in effect. Exhibit C in the original show payments to BWXT. The word you thought had just told us that you alleged that they managed and administered these monies that came in. Yes sir I'm embellishing a little bit on the word acceptance but when I say they accepted them without exception and it says the same thing in paragraph 24. I think the court should give us a fair reading of that statement. We never said at any point in time that the money was passed along to met life or that met life was involved in any way we've never named met life as defender or anybody else as defended. I think that the only fair inference from the use of the word that they accepted these payments and we detrimentally regard upon their offers is that they ticked the money and they handled the money in that general fund or they otherwise managed the money. That's what our certainly what we are saying in that regard. I've got 13 seconds as the court has other questions I'll try to reserve some. I may have to have the additional five. Any other questions the court may have this time. Thank you very much
. It has not. Why not? They've not asked for it. What they've always asked for it. Well we've we've always been willing to return the premium payments and I'll represent that to the court. We would be happy to return the premium payments. They've never they've never been interested on them now. Of course, of course, but that's not what this case is about. They've always just demanded the entire coverage amount. Again, my name is Jill Reigns by representing the defendants in this case. I think the key issue in this case is whether employers sort of routine processing of a benefits payment without notifying a participant that coverage had a lack. is a fiduciary act. But before I get to that, I want to address briefly the ASTOPLE point. They've asserted the ASTOPLE claim as a separate state law claim, but this court has held that plaintiff's action has been completely preempted by a RISSA. And the practical effect of that is to transform his state law common law claims into statutory claims
. So he's got to find a statutory pigeonhole to place his ASTOPLE claim. The only logical place that is plausible is 1132A3. And this authorizes actions for other appropriate, equitable relief to enforce the terms of the plan or a RISSA. The problem with the ASTOPLE claim is that a plaintiff is attempting to use equitable relief to vary the terms of the plan, not to enforce the terms of the plan. And this is exactly what the Supreme Court in the McCutchen case said that you can't do. And let's be clear, the plan language on this point, on his eligibility, couldn't be clear. It says, when you cease active employment, which is defined as working during the month of the insurable claim, then your coverage ceases. And if you want to continue coverage, you have to arrange for a separate plan with the insurer or a MATLI. So plaintiffs, ASTOPLE claim is trying to vary the terms of the plan, which the Supreme Court has said you cannot do. And so that claim doesn't get off the ground. Let me turn to the fiduciary duty claim. And I think plaintiff can see that this is the linchpin for all of his claims, both the ones that are in the First Amendment complaint and those in the second amendment complaint. Now, fiduciary is not an all or nothing concept. You're only a fiduciary to the extent that you're acting as a fiduciary. So you have to look at the particular action that the plaintiff is claiming was wrongful. And in the present case, what plaintiff is claiming was wrongful was accepting payments without notifying the employee or the former employee of the lack of benefits. So I'll address each of those components in turn. Now, take first the act of accepting the payment. In the district court argument was that this was not a fiduciary act. This is not a discretionary act. This is a routine administrative act, a clerical function, just accepting a check and depositing it. And it doesn't exercise the sort of discretion that's required to be a fiduciary under ERISA. Now, plaintiff is arguing that discretion is not necessary when the handling of money is at issue. And this argument fails for a number of reasons. First, it's waived because it was never raised below. I mean, if you look in the arguments both on-fend and oral argument before the district court, plaintiff never argued that that discretion was unnecessary when money was involved. In fact, in the opening brief in this case, he doesn't even argue that. It was raised for the first time in the reply brief
. So you have to look at the particular action that the plaintiff is claiming was wrongful. And in the present case, what plaintiff is claiming was wrongful was accepting payments without notifying the employee or the former employee of the lack of benefits. So I'll address each of those components in turn. Now, take first the act of accepting the payment. In the district court argument was that this was not a fiduciary act. This is not a discretionary act. This is a routine administrative act, a clerical function, just accepting a check and depositing it. And it doesn't exercise the sort of discretion that's required to be a fiduciary under ERISA. Now, plaintiff is arguing that discretion is not necessary when the handling of money is at issue. And this argument fails for a number of reasons. First, it's waived because it was never raised below. I mean, if you look in the arguments both on-fend and oral argument before the district court, plaintiff never argued that that discretion was unnecessary when money was involved. In fact, in the opening brief in this case, he doesn't even argue that. It was raised for the first time in the reply brief. So this really is our first opportunity to respond to that. The second reason is that acceptance of premium payments is not the same as managing and disposing of planned assets. And I mean, this is not just me saying this under the Department of Labor regulations that we cite. They specifically state that collection of contributions and application of contributions as provided in the plan is not a fiduciary function. And they contrast that later on in the regulation with exercising any authority or control respecting management or disposition of the assets of the plan. So clearly, there's a distinction between just routine acceptance of a premium payment and managing and controlling plan assets. And that makes sense. You know, under general trustee law, if you're the fiduciary and you're making investment decisions or decisions about who to pay, that generally is a discretionary function. Just accepting a check and depositing it is not a fiduciary function. Plaintiff sites know authority that the routine processing of benefits payments is a fiduciary act. The third reason the argument fails is it's really a red herring. Plaintiff is not suing to recover funds that have been mishandled or squandered or something like that. And as I mentioned before, defendants are and always have been willing to repay the premium payment. But that's not what plain of fawns in this case
. So this really is our first opportunity to respond to that. The second reason is that acceptance of premium payments is not the same as managing and disposing of planned assets. And I mean, this is not just me saying this under the Department of Labor regulations that we cite. They specifically state that collection of contributions and application of contributions as provided in the plan is not a fiduciary function. And they contrast that later on in the regulation with exercising any authority or control respecting management or disposition of the assets of the plan. So clearly, there's a distinction between just routine acceptance of a premium payment and managing and controlling plan assets. And that makes sense. You know, under general trustee law, if you're the fiduciary and you're making investment decisions or decisions about who to pay, that generally is a discretionary function. Just accepting a check and depositing it is not a fiduciary function. Plaintiff sites know authority that the routine processing of benefits payments is a fiduciary act. The third reason the argument fails is it's really a red herring. Plaintiff is not suing to recover funds that have been mishandled or squandered or something like that. And as I mentioned before, defendants are and always have been willing to repay the premium payment. But that's not what plain of fawns in this case. Plaintiff wants the entire coverage amount, which is what she sued for. But I think the fourth and the most important reason why the argument fails is that it would really impose onerous obligations on employers. Basically, every time an employer gets a check for benefits payment, you would have to verify for every single employee, for every single policy that the employee has, that the employee is eligible for coverage under that policy. And if you get it wrong, then the employer turns into an insurer. I don't know how many employers want to be in the business of life insurance. And so you have this these alternatives, either you invest massive amounts of administrative costs in ensuring that for every payment you receive, the particular employee is eligible for all the benefits that you signed up for. Or you run the risk of being an insurer and paying tens or hundreds of thousands dollars or more. And I think employers, if they're faced with this massive administrative cost or litigation exposures, would just stop offering the insurance benefits. It just wouldn't be worth it. And this is exactly why Congress enacted a RISA and why the written plan is central to RISA. Because it is what streamlines administration of benefits claims. So it's no longer a case that my employer said this or I did this, my employer did this. It's what does the plan say? And that's what Congress intended. And that's why the plan is central to a RISA
. Plaintiff wants the entire coverage amount, which is what she sued for. But I think the fourth and the most important reason why the argument fails is that it would really impose onerous obligations on employers. Basically, every time an employer gets a check for benefits payment, you would have to verify for every single employee, for every single policy that the employee has, that the employee is eligible for coverage under that policy. And if you get it wrong, then the employer turns into an insurer. I don't know how many employers want to be in the business of life insurance. And so you have this these alternatives, either you invest massive amounts of administrative costs in ensuring that for every payment you receive, the particular employee is eligible for all the benefits that you signed up for. Or you run the risk of being an insurer and paying tens or hundreds of thousands dollars or more. And I think employers, if they're faced with this massive administrative cost or litigation exposures, would just stop offering the insurance benefits. It just wouldn't be worth it. And this is exactly why Congress enacted a RISA and why the written plan is central to RISA. Because it is what streamlines administration of benefits claims. So it's no longer a case that my employer said this or I did this, my employer did this. It's what does the plan say? And that's what Congress intended. And that's why the plan is central to a RISA. And this protects both employers and employees. And as for now, as a recent Supreme Court decisions, both the McCutcheon as well as Heimishov first heard for life have emphasized that the plan is central to a RISA. And you have to look to the plan to determine what their benefits are available. The second component of their fiduciary duty argument is just the failure to notify the employee that coverage had had lapsed. And again, this is not a fiduciary function advising an employee whether or not benefits are he has or doesn't have benefits is not a fiduciary function. That's completely different from a plan fiduciary deciding in a particular instance whether a particular claimant is eligible for benefits. But the wrongdoing in this case was just the alleged wrongdoing in this case was just silence was just not telling the employee that coverage had lapsed. And that silence is is not a fiduciary act. A plaintiff has argued that this is premature and that that we need discovery. But what plaintiff is arguing was wrongdoing with silence. You don't need any more discovery to determine the outline silence. And silence not telling somebody of their eligibility for benefits under a plan is not a fiduciary function. And we cited the case of weeks versus advance, which is directly on point. He's also arguing that the BW XG was a fiduciary because you acted alone in reviewing and investigating the claim and alone denied the claim
. And this protects both employers and employees. And as for now, as a recent Supreme Court decisions, both the McCutcheon as well as Heimishov first heard for life have emphasized that the plan is central to a RISA. And you have to look to the plan to determine what their benefits are available. The second component of their fiduciary duty argument is just the failure to notify the employee that coverage had had lapsed. And again, this is not a fiduciary function advising an employee whether or not benefits are he has or doesn't have benefits is not a fiduciary function. That's completely different from a plan fiduciary deciding in a particular instance whether a particular claimant is eligible for benefits. But the wrongdoing in this case was just the alleged wrongdoing in this case was just silence was just not telling the employee that coverage had lapsed. And that silence is is not a fiduciary act. A plaintiff has argued that this is premature and that that we need discovery. But what plaintiff is arguing was wrongdoing with silence. You don't need any more discovery to determine the outline silence. And silence not telling somebody of their eligibility for benefits under a plan is not a fiduciary function. And we cited the case of weeks versus advance, which is directly on point. He's also arguing that the BW XG was a fiduciary because you acted alone in reviewing and investigating the claim and alone denied the claim. So you were the sole discretionary factor there. Well, I think that mischaracterizes what actually occurred. They mismoon attorney asked for claims forms from BW XG claims forms for met life. BW XG looked at the matter and said, look, this guy wasn't covered because he didn't qualify because he was no longer an active employee. So they didn't adjudicate a claim, a formal claim. They just wrote a letter saying, I'm sorry, it looks like you're out of luck and there's no coverage. So that's the first problem. The second problem is they're not claiming any misconduct with respect to that because that letter was accurate under the terms of the plan. As this court has held, there was no coverage. So there was no misconduct there. And to be a fiduciary under arrest, you have to be a fiduciary with respect to the particular conduct at issue. And the conduct at issue is just the acceptance of benefits and or the discussion of what the plan does or does not cover. If there are no further questions, ask the court to affirm. Thank you
. So you were the sole discretionary factor there. Well, I think that mischaracterizes what actually occurred. They mismoon attorney asked for claims forms from BW XG claims forms for met life. BW XG looked at the matter and said, look, this guy wasn't covered because he didn't qualify because he was no longer an active employee. So they didn't adjudicate a claim, a formal claim. They just wrote a letter saying, I'm sorry, it looks like you're out of luck and there's no coverage. So that's the first problem. The second problem is they're not claiming any misconduct with respect to that because that letter was accurate under the terms of the plan. As this court has held, there was no coverage. So there was no misconduct there. And to be a fiduciary under arrest, you have to be a fiduciary with respect to the particular conduct at issue. And the conduct at issue is just the acceptance of benefits and or the discussion of what the plan does or does not cover. If there are no further questions, ask the court to affirm. Thank you. I believe that a risk of requires someone to adjudicate a claim. And if BW XT didn't adjudicate the claim by saying, we're not going to pay it, but whatever reasons they come up with, we don't control their reasons, never do. No employee or former employee controls the reasons when they come back and say, we're not paying it. That's a claim denial. And when they are the ones who make the claim denial, yes, they are a risk of fiduciary because they denied the claim. They singularly investigated and singularly denied it. And then they may have denied it in a clever way. They may have denied it in this harmless and political correct way as they could have. But a risk requires that when a claim's file did be considered and approved or denied. And if it's not approved, it's denied. And that's what happened in this case. They denied the claim. And they received the money. And if they received any of the money, they became a risk of fiduciary
. I believe that a risk of requires someone to adjudicate a claim. And if BW XT didn't adjudicate the claim by saying, we're not going to pay it, but whatever reasons they come up with, we don't control their reasons, never do. No employee or former employee controls the reasons when they come back and say, we're not paying it. That's a claim denial. And when they are the ones who make the claim denial, yes, they are a risk of fiduciary because they denied the claim. They singularly investigated and singularly denied it. And then they may have denied it in a clever way. They may have denied it in this harmless and political correct way as they could have. But a risk requires that when a claim's file did be considered and approved or denied. And if it's not approved, it's denied. And that's what happened in this case. They denied the claim. And they received the money. And if they received any of the money, they became a risk of fiduciary. And just as Ajay was looking, because you said, go to the second and then I went to the second amended complaint. The first amendment complaint is earlier on. And that's I'm looking at Pindex at 26, which was Al Exhibit C to the first amended complaint, which is incorporated by reference. And I think it's probably attached to the second, but it's referenced in the second as Exhibit C. And Exhibit C at page 26 specifically says, payments by moon to BWXT slash McDermott. And it shows when they were made, the checks they were made, we've had copies of those checks. They're payable to BWXT. They're not made to an insurance company. They made to BWXT, each and every one of them. And then the letter at page 27 over their shows that Ms. Moon wrote a letter to BWXT saying, you know, my husband died and I've calculated out how much I owe. And the next last paragraph I'm closing the check for 1173 to cover the difference. Please advise if any more monies are due. They accepted that check
. And just as Ajay was looking, because you said, go to the second and then I went to the second amended complaint. The first amendment complaint is earlier on. And that's I'm looking at Pindex at 26, which was Al Exhibit C to the first amended complaint, which is incorporated by reference. And I think it's probably attached to the second, but it's referenced in the second as Exhibit C. And Exhibit C at page 26 specifically says, payments by moon to BWXT slash McDermott. And it shows when they were made, the checks they were made, we've had copies of those checks. They're payable to BWXT. They're not made to an insurance company. They made to BWXT, each and every one of them. And then the letter at page 27 over their shows that Ms. Moon wrote a letter to BWXT saying, you know, my husband died and I've calculated out how much I owe. And the next last paragraph I'm closing the check for 1173 to cover the difference. Please advise if any more monies are due. They accepted that check. And I can't think of any equitable, stop-able issue that rises anymore strongly when after the man's dead, after you have the opportunity to look at this if you choose to do so, you still accept his check. And you've never refunded the money. They've never refunded the money. And they say today in courtroom, I'm sure Mr. Rain's Bay has as a pure heart when he says that. We've always been willing. But we haven't seen the money. It's never been refunded. We've never been refunded. Excuse me. Did you ever ask for it? I haven't asked for it because we contend that it's been paid in good faith and the benefits of it. But they several years have passed now. If they were going to refund it, I think the court could infer that it would have occurred prior to this time. The 2,973 dollars and 36 cents is that the total amount of the premium spade for everything
. And I can't think of any equitable, stop-able issue that rises anymore strongly when after the man's dead, after you have the opportunity to look at this if you choose to do so, you still accept his check. And you've never refunded the money. They've never refunded the money. And they say today in courtroom, I'm sure Mr. Rain's Bay has as a pure heart when he says that. We've always been willing. But we haven't seen the money. It's never been refunded. We've never been refunded. Excuse me. Did you ever ask for it? I haven't asked for it because we contend that it's been paid in good faith and the benefits of it. But they several years have passed now. If they were going to refund it, I think the court could infer that it would have occurred prior to this time. The 2,973 dollars and 36 cents is that the total amount of the premium spade for everything. 26. Yes, sir. That was based upon 228.72 a month for 8 for for for this. Is that does that include anything other than the life insurance? It does. It does. There's a lot of what's the total amount of the life insurance? It was 800 and some. 840 somewhere in that neighborhood. It's set forth on one of the documents. Now, I would also just age you page 22 at under paragraphs 33, 34, 35. I would say that BWXT and on McDermott will let receive these payments in a fiduciary capacity with a duty or an obligation to either apply these payments towards the purchase of life insurance or to apply these payments to establish a self-insured fund to cover the state of contingency. If that doesn't state, that is quiz you can that they took the money, they received the money and they were to apply the money under that control and under their management to do these things and paragraphs 34 and 35 say the exact same thing. In a different context. So I think we've clearly established that they received the money and the definition of a fiduciary under arrest says if you have any control over the assets, any not discretionary but any you are an a fiduciary and a fiduciary and that's the narrow issue before today whether or not BWXT is or could be a Rousseau fiduciary
. And we respectfully submit that they qualify as a fiduciary for denying the claim and for the ones who received the money and handled the money completely with no one else involved and that became a de facto fiduciary for the purposes of Mr. Moon's claim. We glad to answer any other questions. Thank you. Thank you very much. We will come down and greet the lawyers and go directly to the last. Thank you