thank you our third case for this morning is newman against metropolitan life insurance mr duncan your honor may please the court words matter in the words that metropolitan like used to advertise market and describe the reduced pay at sixty five premium payment option promised marjorie newman anniversary date after age sixty five but that after that the amount would be fixed at half of the premium at that age that's precisely what he believes your honor she believed that she was purchasing and therefore receiving a benefit that began when she turned sixty five and that's when she would start to realize that benefit and the language that met life chose to use in the marketing materials  advertising this premium payment option refer to a specific amount it says by paying more than the regular premium amount you would pay each year up to the policy anniversary on an after your sixty for sixty fifth birthday in the key language here you pay half the amount of your previous sixty five premiums there after half the amount of your pre date sixty five premiums refers to a specific amount so for example if her pre dates sixty five premium had been four thousand dollars this would therefore the read and conveys to her you would pay two thousand dollars they are after and so they were emphasizing the word your and of course this week we can deal with the fact that this is in the brochure not actually in the policy but you're emphasizing the fact that a rational person could read your create sixty five premiums as assigning a value to the to the number n you know it's to whatever your premium whatever that individual's premiums were the day before they turn sixty five and then that that gets frozen the problem is this language is not actually in the policy and so what i want you to address is what in the policy would make somebody think that the promise is keep and sixty keep the number the amount fixed as opposed to a promise always to charge people sixty five and over one half of whatever the policy may be whatever the amount may be well because i think they're doing that as it is your honor knows the policy itself is very quiet on what reduced pay of sixty five means in the only language related to the post sixty five premium amount just and after age sixty five on an after the policy anniversary to age sixty five so it's on an after but their language cannot be read alone or ignoring the language in the policy or  revenue language isn't there that one little place in the policy where it says so you have it page thirty four of your brief in the schedule of benefits you have selected the following flexible premium payment option before policy anniversary they give a number of three thousand two hundred thirty one dollars ninety three cents on an after the policy anniversary one thousand six hundred fifteen ninety seven so you're saying that she read that as that's what you're out that's what your payment is going to be the one thousand six hundred fifteen on an after policy anniversary day sixty five but if i may take a moment even though they say in lots of other places not policy but we might raise the premiums absolutely and we don't  discount that they did say or reserve the right to increase premiums and numerous other places in the policy but the reason that mr newman and likely many many others read it the way that she did is because of what's stated in the marketing materials in the law requires that an insurance policy separate apart from all other contracts but an insurance policy must be right using the reasonable person standard in the position of the insurer ok and that's critical here because the position of the insured marjorie newman is a standard list by what she read in the marketing materials and if you read the policy in isolation if you re policy isolation i don't think anybody knows what reduced pay of sixty five means at all but if we have here to the standard that those are the only place in the policy that's mentioned right correct yeah and so you don't know if it's a one time reduction you don't know if it's a permanent reduction you don't know if it's a percentage reduction or if it's a reduction just in an amount of eight hundred some odd dollars but if we're going to stay true to the standard that's required when interprete ing insurance policies and read it from a reader read it using a reasonable person standard in the position of the insured we have to take into consideration what newman read in those marketing materials and those marketing materials reasonably promised her that she would be paying a fixed post age sixty five premium amount what's also important is if we look at those and also adhere to the law and look at the totality of the circumstances so if we look at the context in which she was informed about reduced pay at sixty five above reduced pay at sixty five it says double pay first year option so reduce pay at sixty five is one of the four options the first one promises a fixed percentage reduction in the regular premium amount for the life of the policy the two below it so chester inform that you can pay off your policy in its entirety completely avoiding premiums at some point down the line and then reduce pay at sixty five is couched in between those and that's part of the reason why she believed that she was securing a reduced or a fixed reduced post age sixty five premium minimum in addition it's even though the in the fine print footnote says don't believe anything in this procedure it's different from the policy well that's what metlife would have you believe that footnote says but that's not what the footnote says the footnote says this brochure is intended to provide a general overview general overview doesn't mean don't rely on a general overview doesn't mean it doesn't mean hey you better look skeptically at the policy that you eventually received after you complete this transaction to make sure that everything is absolutely consistent oh and i'm glad you mentioned that because i wanted to ask you about this thirty day look over opportunity once she really does have the policy how does that sit in your view well your honor two points number one eleanor courts have repeatedly rejected  a return policy acting as a defense to illinois consumer fraud act claims it would render the entire act meaningless that's number one and number two the transaction here think it undermines your breach of contract theory no i don't think it undermines my breach of contract theory because the contract had already been completed at that point but i say it was sort of subject unwinding for that thirty day period whether it's subject to unwinding or not the contract had been agreed to and entered into coverage had been bound at that point that's number one the other point worth making is that the thirty day review policy is rendered meaningless by the ambiguity of the policy itself she would have no reason to think that the language of the alice it was inconsistent with what she read in the marketing materials it wasn't a self correcting document that said hey by the way your premium rates are subject to change in the future or on an after policy anniversary age sixty five comma subject to future rating cre having her expectations set by the information that was contained getting materials it's in that context that she read the policy itself and she didn't believe that there was anything different the first time or that that there was anything worth being concerned about or any reason to exercise the thirty day review period and return her policy the first time that she became aware that the marketing materials and policy meant something different than what she believed was one metlife levied one hundred two percent rate increase on her policy premiums two years after she had turned sixty five so now there had been an earlier adjustment of some kind that they explained that way somehow well your honor frankly we're here on a twenty six motion so but the evidence if given a chance to explore the evidence the evidence is going to show that that wasn't a rate increase that was a rate correction ok there's extensive correspond and there's a distinction essentially metlife said hey we miscalculated your rate here's what it should have been here's what it's going to be we're not going to ask you to pay back what you should been paying ok it wasn't this class wide rate increase that they eventually levied and it would have had in  contacts context in which it was imposed would have had no reason to advise or alert newman to the fact that the reduced pay at sixty five premium payment option was anything other than what she had originally believed it to be can you tell me what a class is here a class wide rate adjustment no i was a class well i can tell you now at this point after having gone through a motion to dismiss an appellate briefing that a class is is  everybody who purchased a long term care insurance policy through met life regardless of what premium payment options you may have purchased or the benefits you may have been promised a policy that maybe not being long term care of nursing homes and stuff right that among other things yes your honor and but it's not defined in the marketing materials it's not defined in the outline of coverage it's not defined in the policy itself and so it was left to newman to determine what defines the class of course the common definition of class is a group defined by a common characteristic ok and she believed herself to be made up of characteristics that included having a frozen premium value straight at beginning at age sixty five and so again that's what's what you end up with is a specific promise that metlife made to new men and a general right that they reserved elsewhere in the policy that goes on resolved in the law requires that if that creates ambiguity if the result in humans favor alternatively if those are two competing provisions in the contract the specific provision related to newman's post age sixty five premiums would control over the general warnings and admonitions about  you your honor good morning it please the court mr duncan's right words matter and the words in the contract that issues are very very clear but why isn't that chart under very clear to that tells her this is what you're going to have to pay on after the policy anniversary at age sixty five in the policy in the schedule of benefits because she selected the reduced paid sixty five premium  doesn't say or whatever one half of any future rate is now your ira doesn't use those were the page your honor is referring to is the schedule of benefit exactly and that's the only place in the policy where it implements her choice of reduced pay at age sixty five why isn't this at least ambiguous so that she is the insured gets the benefit it's not ambiguous for a range of reasons your honor first what we're promising is to chill pay one half of the existing current premiums not that we're promising to freeze your premium amount to what it was when you turned sixty five your honor the reduced paid sixty five option says here's where your premium will be on an after and and after on an after of write and the contract looking at it as a whole specifically reserves to met life the right to raise premiums at any time in any amount of what ever her pre age sixty five premiums were how and that number every increase given that once she is sixty five a matter of historical fact the present number that corresponds to what she was paying before she turned sixty five yes your honor there is in the preview that's not going to change we're not going to go back in time and no but when the policy was a sham probably when the policy was issued metlife had reserved to itself the right to raise the premiums at any time and the brochure does not speak in terms of ms newmans rates being locked in the definition of they're after does not have a permanent connotation instead it means simply afterward i met wife did reduce her premiums by have at her age sixty five anniversary and they remain level thereafter for a couple of years before being raised and then when they were raised they were raised by hand entirely consistent with the language in the brochure and the brochure specifically as chief judge would point out that it is a an overview and that the policy is what controls the relationship ms newman received the policy and had a thirty day period from the time she received the policy to review it terms it's hard for me to see what would have alerted her reading this policy not to understand this special payment option for which she paid extra money to metlife she complied at all times with whatever it was you were asking from her priest sixty five so she understands that she has a she has elected to make special payments for a special option and i don't see ordinary people rates can go up at any time but if you have agreed to pay metlife this extra money you're in a different class well you're out of that with respect that's not what the policy says the policy says on the po is it just says we can raise rates when we want to but it doesn't say anything suppose about suppose somebody took one of the options to prepay in its entirety under your reading does that mean metlife could go back to that person and say oh well we've actually decided we want to charge more for the long term care so here's a bill no your honor i don't know what the language would be of that would precisely so that parents sessional option for payment has consequences going forward and you can charge them more even though you reserve all over the place in the policy the ability to change your rates if the language had been changed yes but here your honor in the reduced paid sixty five option language it does not say your rates are permanently locked in once they are reduced at your age sixty five it simply says on an after and it says that on a page that has an acquittal date put this in context where is the four language of that clause the clause discussed the reduced pay option is discussed on the schedule page and then the other languages just toss in the schedule page or just we have this little thing yes yes on an ad for it's not really discussed before lines that describe sixty five premium would be given the current premiums how was that inconsistent with the representation in the brochure that the post age sixty five premium w that there is no representation in the brochure that it will be a permanent fixed amount your honor and the language in the policy that relates to the reduced pay option is on the schedule page the four lines the court has pointed out and then the language in the policy that describes premium sure we don't have a physical copy of the policy right in front of us where is it in your brief in our brief it's in the section discussing the ambiguity as it's where we describe mean that this is back to our other discussion it just says we reserve the right to change premium rates on a class basis premium rates are subject to change but she has signed out for you know so many different i'm asking for where is the language in the policy the full language in the policy describing the reduced pay at sixty five i'm not asking for other language in the policy the contract language that explains the reduced pay at sixty five option includes the schedule  benefits but it also includes the other places in the policy what you're telling me where it is serious and any other place that specifically refers directly to your brief requote the critical language of the policy anywhere  it does your honor it quotes all there beginning on page nine figure what you're telling us is that the only mention in the policy of whatever the reduced rate option is is in the scheduling of benefits well the contract line as the only time it actually utters the words reduced rate payment option whatever that is true your arm but the car i claim so there is no explanation of the policy of what this particular payment option if there is an explanation of how the premium works for every policy holder and there is no qualification in the reduced paid sixty five option language that would say to the reader that there are other provisions of the policy relating to creami do not apply why wouldn't a sensibly person read the words on an after policy anniversary at age sixty five to mean that's what i'm going to pay on the anniversary at sixty five and after the anniversary at sixty five why doesn't that at least a reasonable reading because of all the places in the aussie that reserve to metlife the right to raise premiums at any time and because if we didn't adopt the reduced pay option sure but if you what has met life so old man life has sold that's a great question are ms newman has received the benefit of a bargain she pays half of what she would otherwise pay because she has the reduced pay at sixty five option if i can go back to your honor we don't know she would have thought this insurance product if she'd actually known that this is what met life is doing well she had every reason to know your honor in part because the place in the policy where the reduced paid sixty five option exists is the schedule page in the schedule only place right in the schedule page says that it has an effective date right below the effective date it says again in bold all capitalized letters that this schedule page replaces previous schedules with benefits find no she locks it in on a particular day i mean i don't see any inconsistency with her view and the fact that wells effective date there's an effective date on the schedule page and then in two thousand and twelve before she turned sixty five she received another schedule of benefits that changed all the premium rights so she wasn't sixty five yet that's what all the rest of the language in the policy he should have alerted her to it should have alerted to the fact that premiums could be raised at any time not just before she was sixty five there's one spot in the by as much as two hundred percent they may go up at her age ninety or later and so ms newman any reasonable person receiving this contract would selected the reduced pay at sixty five option was on ample notice that metlife has the right to raise premiums at any time in any amount and the positioning of her to do it what would it have cost metlife to put in a paragraph in the policy explaining these various options that the brochure before i understand it your position thank you policy does reserve the right to metlife to raise premiums in four different places in unequivocal terms and there is nothing in the reduce the d sixty five premium wherein the policy is that precluded but your honor that's not what the brochure says the brochure does not speak to the company's right to raise premiums and it does not speak in terms of permanence with respect to the reduced paid sixty five option instead it simply says that after that at her age sixty five anniversary she will pay half of her premiums thereafter and that is exactly what happened in this case ms newman's premiums were reduced by half and they stayed there for the next two years before being increased again by half which is plainly permitted by the contract language real possibility of premium increases but only until she was sixty five but your honor that that is not what the brewer said this paying extra for the reduced the policy language the premiums could increase or this actual benefits that calculates the post sixty five cost at half of every sixty five but your honour's reading of the brochure is is the brochure says the brochure alerts the reader that it is simply an overview and that the policy controls and that's what led me to ask her where the language is in the policy and you tell me that there isn't any there is your honor there's language  there is no language in the policy that defines the meaning of the fifty percent at sixty five option your honor there is meaning in the policy for what the reduced pay option is that is there is you have not been able to point me to a clause that says if you subscribe to this option these are your rights under this option no your honor the there the option is described soley on the schedule of benefits you know precisely using the terms reduced it sixty five option but the meaning is ascribed through the the section of the policy that describes the rights and obligations with respect to premium which clearly i mean that is alice in wonderland thanks well i think we understand your points and we thank you so we'll see if mr duncan has anything further to  say thank you all three very brief but life has gone to great lengths to tell us what the marketing materials and the policy means and when this court considers whether or not the contract was ambiguous the insurance co policy was ambiguous i think it warrants consideration of the multitude of ways that metlife could have easily described what exactly it now claims it was providing that miss newman when she purchased this insurance contract unless there's any further questions i have nothing else all right thank you very much thank you both counsel will take