in mid july of two thousand and two and we have a document showing the use of that money it wasn't just a matter of the check in standing on and held it was a matter of america's receiving the check transferring funds out of its own accounts and out of the by the applicants and paying itself and paying its agent the only answer to that question can be that there was a contract in place the merits have contractual right to that money with a contract in place that contracts that if that's both sides  have to take the money out of the account and pay itself but it also had provided life insurance that life insurance remained in place at the time of patterson instead they just put the money in a checking account that would change the result of the case if they just held the check i think it would remove that issue i don't think it would change the result of the case but it certainly would present a different issue of fact suppose it doesn't matter to us which account they put it in then what happens overall in the case yes then i think you go to the issue of date is after that date so and late august then the terms of the policy and if a condition precedent applies then that would be it would not be complied with in this case but i think delivery in this case happened in early august and at the time if you look if you compare the language of the policy language of what's purported to be the condition precedent and you compare it to what treatment was but mr sentance condition which they don't ask in the purported condition precedent were in the application about the general state of health if he was still in good health they asked about whether he had seen doctors seen doctors gone in to see them not made phone calls he had not done that phone calls had been made by his wife t the doctor's office at the time that and dorset was mailed directly to them under oregon law and endorsement as part of the policy at the time that that was mailed to him and at the time that the rest of the policy was mailed to agent perry  he scratches it out and write something else in the when the company gets it back they decide they no longer want to issue the pas what's the significance of that i think the policy was already in place well before any of that happened i think that policy was in place first of all when they transferred the money into their own own vines paid their own paid paid the insurance agent eleven thousand dollars out of the policy if you scratch out any term you want inserted then i think there's a policy in place by that time and have been for a month they had already taken a itself where he didn't he answer no to that question but it says in an earlier page of the application that he'd had stomach problems that doesn't result six months before then on the telephone problem they hadn't that was no longer true as they have they may have resolved it then they came back or something worse came back right but he disclosed in the telephone interview reports that was july ninth two thousand and two that he had stomach problems at that point too so we'd given good morning your honour's my name is mike piers and i represent america's life insurance company and the basic question here on this heel is what the plain language of the policy related document is and what those terms and conditions are under oregon law the interpretation of an insurance policy in a life insurance policy like this is a question of law based on the particular terms written terms and conditions of policy taken as a whole here the district court properly decided this on s parties and move for summary judgment across motions the district court decided on two grounds and really there are three separate strong grounds for upholding the district court's decision both to the district court relied on and the third  this really is a case that comes down to very clear plain language of the relevant policy documents and also to several oregon cases that are clear and that are directly on point i don't think we heard any mention of them in the opening court court held on the first ground it's well established and really fundamental contract and certainly insurance contract principles that the insurance company has the right to respond to an application with a counter with different terms and that's what america is here there's no genuine issue of material fact that with the insurance company did what america did with say look we've looked at your medical pass we've looked at the other information you've submitted and based on that we will insure you but on a table to rated basis and that is going to cost you fifty percent or so more than what you thought you were going to pay and what you would be paying in connection with the application that you submit it it's well established was forwarded to have it doesn't matter your honor under the oregon under it under oregon law the key issue is whether or not the insurance company retains or returns that premium here america returned it as soon as it found out that  is no delivery until the hose insured or applicant actually receives it and sending it out is not good enough delivering it to the agent is not good enough regardless of whether that agent is for the insurance company or the proposed in short it's got to get to the individual that  think it's clear i think there is no genuine factual dispute as to his having significant health issues at that point that's a matter of the medical records m medical records it's also clear that regardless of his condition there were certain facts undisputed facts don't go to just exactly how sick he was he had been scheduled for an appointment with a specialist and directed own doctors of what mrs clinton and mr saddam self are reporting about what certainly i think to any objective buyers more and more serious problems all the way along and they're starting with july fifteenth you know through through the time of delivery the policy has an effective date of july twenty eighth is that is that right that's that's what the policy says your honor but you say you didn't become effect even though it had that they can tell what some other date  was delivered if it had been well it never thought that that's when it was issued investigates voted on it doesn't change or remove the language in the original application that the condition that he still has to have certain conditions the representations material way is identical and in the olson case i think at least i think at least on the second point of condition christine there still wouldn't have been covered because it was still tied to the livery of the policy and in that case delivery had not taken place and i have to admit i haven't focused on that particular set of facts but that's my take on it standing here it still doesn't get to the first point which is that in a case like this where you've got a specific counter offer which are really different terms provided by the insurance companies they're clearly has to be some sort of written affirmation by the proposed insurer the applicant that he's accepting those terms that was specifically held in morford where actually in that case the proposed insured had had written here's my application here's what i want but mr insured isn't sure i'll take whatever policy you give me if you think i'm a bigger risk than then i think i am i'll pay for that and the inch and so he thought of oregon said that's not good enough you need to let the insurance company come back with a specific term with specific terms and either say yes to those or no to those and it's very clear under more part of the other oregon cases that the insurance company is entitled to basically caused the interest of repose insureds to take such action that would constitute a waiver of any argument that they haven't completely agreed to the counteroffer it's very understandable in this particular case one can easily imagine a different set of circumstances where if we were ignoring the obligation of the proposed insure important facts that as an undisputed matter of fact and law would have been material to the insurers decision including reference to specialists including the ongoing treatment for serious problems as to which there is no dispute no genuine issue of material fact and so that third ground also supports judgment favors america plain language clear cases under or in oregon law there are statutes correct decision left mr pearson has referred to americans upping the premium in this case that was not done the premium was twenty thousand dollars in application the policy was twenty thousand dollars for the premium but affect the table two rating had which was a term known within this i think under oregon law is very clear under olson case in other cases the amount of the premium is what there has to be an agreement on there can be changes within the subcategories such as the commission paid agent perry was ten thousand dollars and he was tell him if they tell him you send us a check for twenty thousand dollars and ten thousand gets invested they can change their mind to say no we're only going to invest two thousand reply eight hundred thousand to the cross with each or if it was clear that ten thousand was going to be invested in this case it wasn't clear to anybody what the amount was  to really write in and say can you remove this going forward at the time of the the death the policy was in place there was an agreement on the amount of the premium the olson case is distinct in this case in at least two regards first of all in and no part of the policy was ever mailed directly to olsen before he was diagnosed with terminal cancer in this case on july thirty first two thousand and two money was taken out of the counts and i think that has crucial legal significance in this case it was sent agent harry so that changes the timing of that move when the diagnosis of cancer was made to a different point in time it was after delivery occurred in this case it was before delivery occurred in the in the