purchased this policy nine hundred eighty six when he was fifty eight years old over the course of the next sixteen years to pay premium to great west all told he created more than fifty thousand dollars in premiums two thousand and two a great west shifted  processing of its payments over to a third party processor transaction applications group that is viewed in this case involves the first game in process under this policy by this third party and as a result of the processing of the payment great west has attempted to forfeit the policy is that the insured here the premium prior to the expiration the grace period requires nothing more and the other rule would be unworkable from the standpoint of the insured because it would place the burden on the insured of guaranteeing the date that not only the great the policy itself it's still a court consider them actually consider them to be the most persuasive support for the idea that great west when it used were paid actually not received but that's actually way the insured under i'm sorry with insurer understood the insured understand the terms of the policy at the time that the policy was entered into here the the only passed you know this is in the record are beginning in two thousand more than well nearly fifteen action on the part of the insurer in the next case they also decided that paid a payment was effective upon mailing and that's at one thirty one cal out of six sixty nine page six seventy three it's also consisting of the california cases was mailed on may twenty eighth and that's it up here just to sixty nine and to seventy of the record and the great west process the payment on june fourth which is at page two seventy three the stamp on the check put there by by tag transaction applications group ability to process the payment existed with respect to the may payment so she effects conceded that there would have been a delay because their system by the time that it got to her department processed the check would have considered the policy lapsed as of june fourth so forward with no evidence demonstrating when they actually received the payment they in essence what this does is a rewards the insurance company for poor recordkeeping the only evidence they have is the day they process the check without any further evidence as to when it actually came in the mail room what was put into their a post office box and that's actually got into their possession i would submit you know overall however that this is irrelevant since based on the terms of the policy and the fact of payment prior to the expiration the grace period that the payment here that interpret ing a premium to be paid as meaning it is received is the only reasonable interpretation under this contract there is a temptation to dive into the grace period clause pull out the word pay and try to analyze it in the abstract and speculate as to what it might mean in some other context but that's not the way contracts are interpreted every word in a contract has to be interpreted in received i disagree here are they used they use those terms in different places but i for example could refer to the policy as a policy i can refer to it as a contract i'd still be referring to the same document it's possible that two words can have the same meaning that's the question that you have to decide but the mere fact that different terms are used in different places does not necessarily mean that they are that they mean something else and in fact but they many well that's that's the question and it's a test that what you have to do is you have to examine the policy as a whole and understand how this policy works this is not a normal insurance policy like an auto policy where the relationship is very simple one person pays a premium the other person provides insurance or the premium is the same every month it's in oil and you just pay the crema directly and things go along there is almost a banking relationship between these parties there is something called a policy value account and this account is the key to this contractual relationship the count is the clearinghouse for all transactions between the parties when money is spent a great question it doesn't just go directly on great west books as payment of an obligation what they call a premium in this case is a deposit into the policy value account the only time great wes can touch that money is every month when the cost of insurance is due at that point the automated systems go to the policy value count and they deduct whatever the cost of insurance is for that month if there's if there are other funds in that account thing earning interest they can be borrowed against in some cases withdrawn so what it means for a premium to be paid this is where you need to start is a deposit is meat into the policy value  him we know from other terms in the policy that premiums are credited to the policy value account the day they are were see their policy makes that very easy when  will be credited to the policy value account on the date received and says that the company's united states headquarters for elsewhere in the policy says that they can also submit that through an authorized agent so we don't dispute that they could send the premium to an agent they don't have to s headquarters but it has to be received to be posted to the policy value account until funds are posted to the vault policy value account they are sensually invisible to the relationship between these parties and that leads me to my next point why would we even have a grace period scenario why does this even arise it arises because if in a particular month the amount in the policy value account is insufficient to cover that cost of exists to grant the policyholders some time to cure that the fall but let's remember what the default is there have to be fines in the policy value kind of has to be replenished so that the company can make  of insurance at the end of the grace period the company goes back to the policy value count to see if there have been sufficient funds replenished in the account to cover not only the cost of insurance that was due sixty days before but also the additional cost of insurance that has been accruing during the great spirit because the policy remains in force during the grace period if at the end of the grace period you go to the policy value count and there's nothing more in it the default is not being sure and that is when the policy terminates now suppose that if as in this case the check is mailed shortly before the expiration of the policy period but it has not reached great westwards agent under the policy at ten not yet be credited to the policy value account i that it's the policy holders obligation to ensure that the fines needed to pay the cost of insurance their basic obligation of this policy are really received by the company on date so they have the obligation to get the funds there by the due date even if even though it's sitting in the post office if they choose to use the mails which they don't have to and there was abundant evidence on this point of other methods that they could have used to forward these funds but yes if they choose to use the mails they bear the risk that is the holding in the corner case the corner ok said and less there is a direction to pay and the court to find out very narrowly unless there's a direction to pay if you one of the things forget is the grace period comes up because there has already been to the fog the policy holder can and arguably should proactively fund this account should put funds in periodically so you never fines and notice when now in that case mr korb waited to send the funds but when he did send them he sent them by overnight mail order well it's his obligation your honor to there's another example as well if you go back even the year prior this happened again where the front where the funds were insufficient to notice went out and on that occasion mr korbel immediately sent the plants he didn't wait at all and he sent them by certified mail so he had been through this process a couple times before he found ways to get the check to great west within the sixty days as the evidence submitted also prove there were other ways to deliver it he could have wired it or he could have set up an computers something like yeah there were two ways first of all every year he would get in annual statement and those we put in the record there at the very the very first part of our excerpts of record is one of the first annual statements and this would give a prediction of how the count was going to play out based on certain rates of interest based on assumptions about how he would fund them in addition it had a toll free number he could call that number at any time to say hey what's in the account or as a judge what's your sense you could simply wait for the past to notice knowing that he would have that there was a terminations did the company subsequently waive its right to enforce the terminations by virtue of its conduct in the proceedings below even though i was it's speeding it opening brief so i didn't brief it in my response if you're interested though if you go to the declaration of dawn galley that was submitted as well as the declaration in testimony pam anderson they discussed in those declarations what happened with the check why it was held it was because there was a pending request for reinstatement and their process their procedures when that's pending they hold on to the money until the decision is made and then if it's declined they return it but again that's an issue that's well beyond anything that was pearson case they're both waiver cases and look at those cases the issue was not how to interpret the policy or whether there had been compliance with the policy terms of fact it was assumed in both of those cases that there had been noncompliance and the issue quite explicitly framed in each of those questions was notwithstanding the noncompliance with the policy terms could the insurer terminate the policy given its past conduct those were waiver cases where there was ample evidence that for years that ensure those insurers had been accepting late premiums eg not been insisting on strict compliance with the grace period clauses in the courts state you know what why after five years did you suddenly say it was too late and the court said in those cases we find a waiver money through great west before the expiration so that it wouldn't terminate at all on the question of the receipt of the check this is first lowish in question of the burden of proof to satisfy the terms so it was our position that the burden of proof on the issue of whether the premium was paid was actually on mr cordle's the dischord agreed with that you'll find that explicit ruling in the district court's opinion and that ruling was not explicitly so far as i can tell raised on the appeal it was it was not any statement of issues there was no section in the balance opening brief on the burden of proof out as a precaution i dropped the foot no in my response brief just then it's our position that the burden of proof on that issue is with the plaintiff because it's a such a condition that they have satisfied having said that i don't rely on that because i think the evidence here was sufficient to meet the burden of proof wherever it lay  practice evidence is well established as admissible evidence to prove that something happened in a particular occasion now you have to submit the right evidence you have to submit competent testimony by someone familiar with the custom practice that establishes that there is such a custom and we did that in spades with the declaration of pami understand also there was deposition testimony submitted by both sides that amplified it and this is very important there was no objection submitted that evidence the burden then fell to the mr korbel to come forward with something else that would create a tribal issue fact that check with from where to where it went from san francisco to lincoln nebraska and mr korbel response was twofold first of all he questioned whether custom and practice evidence is is progress and we we address that as a matter of law then he speculated that well but all kinds of things could have happened to this check maybe you have a custom in practice but maybe something else happened the problem is those are the kinds of metaphysical doubts that the supreme court has said or not enough to defeat a motion for summary judgment it's not enough to simply speculate that something else happened you have to show that you have some hope of proving that something else happened in here there was no evidence on that point what they tried to do was they tried to use the handling of the second check the reinstatement check to call into question the hand of the first check but i submit see that it backfired in the district court notice this very closely when the second check team in it was given a different stamp it was stamped received and the reason is is that they did not immediately process that check and they have a custom in practice that when they get a check and they don't immediately process it they put that received stamp on it the first check doesn't interpretation agree west interpretation that paid means received credited to the policy value account into doctors cost of insurance puts both an unreasonable if not impossible burden on on the insured to be responsible for things that need to apply payment to the policy they count until it's actually received at the united states headquarters and i think we do the distinction between where the short me so in the premium vs what great west does with it after it's received when they do that can actually allegations on the insured over matters of which they have no control but your client seems to have assumed that duty in prior instances i don't mean other words i'm not sure how relevant  subjective intent is to this issue but the fact is on a couple of park prior occasions when he was sneaking up or edging up on the deadline he used something other than what the kids called snail involve a check that was never received by the by the creditor and the pay or sought credit for a payment was actually never received so they didn't want to make the payment good they simply said we sent you the check on the state it's good payment she did in fact admit that the two payments that the payment that they processed on june fourth and the payment that it processed in july were both in the same category great west could not or tag could not process those payments as they were received so because their systems