report we're here today seeking the reversal of a judgment or creature contract claim against security life and health in our first two points are did we even have a contract to begin with and secondly for the stop all to apply says you can a position in this case must at least the insured have intended the application to be his application i believe that's our are beginning fact in this case ken russell never intended the application which is the subject of a controversy to actually have been his application which asked the question or begs the question we have or have contract formation with respect to kenneth russell united security life health insurance of a health insurance policy what happens is after her application is forty two us ell age they send the typical course function they would advise in their potential insurers which in this case would not only have included possibly kenneth russell from the us l h perspective but the other members of the family telling them read the policy in two different you know letters of him his wife intended original affirmation to be an advocate for her gas and for family members but we have a traditional admission in this case in a fair fight leading those that intended to be applicants for the health insurance at that time that is fundamental elements of contract formation is the potential insurer is making an offer to the insure and in this case because the application we had a fact dispute whether to throttle and that is the claim that is the property claim in this case whether he ever executed that application but  was the letters from united security the independent communications between potential insured and insured communications that the producer was not part of they consider that to be the offer from united us russell read the policy and the application attached to verify and confirm its completeness and had an amendment to the application that had an additional history the only one us l n h knew at that time russell says i accept your offer to be insured and i believe this is car ahead of the horse in the way that this is unfolding and i believe it's the follow up that way in this case because we initially had a traditional admission that enough russell executed first application as hez they wanted to get out of that admission and said it was a mistake and filed another verified pleading saying no we only intended the initial and original application to be on behalf of mrs russell and the children and went on to say in the testimony at trial is that katherine russell was concerned as to whether he would have too many riders if this entire prior medical history was not our fact side sheet of paper but i didn't intend to go on the application yet this was not my application to try to resolve this question he didn't he didn't resolve that question sir he doesn't believe they're going to let soon it's true it's why i say has then ratified why he knows to be a false application as heads the agent is no longer involved in that transaction this is like the mary enjoy life case assert was false  ratified it in the image it in the amendment to application in that amendment there is he has not added to the men but all prior medical history that in the same communications he correspondence why would he not think at this point that he's now covered as well if he thinks he's covered he's covered because he knows that information that he did not intend to happen the first application he knows as a matter of fact i'm sure he didn't intend i mean i understand that your position but he says i gave the information the you are there for me and determine how very we'll react to that contrast that's the situation where i come out to sell you insurance and say i want to be a buyer i'm giving you this information as a buyer re e dealing with them as an applicant but at the time of tom belittles involvement in this case tom kenniff russell did not intend to be an applicant for insurance in fact  kenneth russell three things the first policy that had application attached that did not contain any of mr russell's information which he did not intend to be his yet the letter application in that independent communication test russell then says when charged with reading all this and making sure it is accurate says ok for promised kenneth russell moot and this is a distinguishing factor to  the stop cases where the imputed knowledge cases is that kenneth russell knew that in that application he did not intend to be zero he knew that none of that information was put down and he knew tom bill was going to put it down  adam's case that the dog case she told about dog she intended to be an advocate and why he decided to write in pursuit of that application was that agents choice and there was no  contract without meeting of minds and the fact of the matter is when bethel was involved there was no meeting of the minds that when n but even if let's assume we accept everything that so wonder if you're scum precentor money bear but they the form of learning without the stuff we think we have an initial application and then there could be consequences to that and now we bit website so that was our intention you came back the offer to us we say and then in the proof of claim that we get for this they even deny a prior history so even in the processing of this claim they continue to conceal the kidney stone history we learn how extensive it is we re moving on because of what we call the delayed contract formation if you even accept that it appears the trial court went to what i believe is an extreme  interpretation of the facts to say that the kidney stone history was not material now the only evidence in this case was the former underwriter of us l n h the underwriting guide which was an industry guide adopted by for the obligation of us l n h there's the fact dispute it was never paid who do they have it they paid it to the providers it's a major medical plan they pay seventy five hundred to the for to the health providers no fact question never pay you'd have to reopen and be almost a volunteer to pay that debt and so technically the condition preceding there's no breach of duty if they didn't pay that but the fact of the matter is they've never had to pay a penny more than what their contract required and even under contract the p p go to only been in one nine hundred thousand payment the contract measure would have been that we've been hit with over thirty thousand dollars the face amount of the bills it's not  have an agent go to a home of a family that has insurance that agent sells insurance to this family and no point that the agent help the family there is what's called a two year contestability that is not on the application that is nowhere to be found mr dop testified to that fact that agents are not trained to tell a consumer this a consumer would have no knowledge that information until a policy is actually received now in order to receive a policy the consumer would have to terminate the coverage they currently have in place so that means is that for me as an insured best health insurance i get offered a better quote on insurance i take it based on an application i don't receive a policy in the mail i've already cancelled my other insurance and if i read the policy i learn for the first time any claim made by me in the first two years is open to contestability and can be looked at application process i think that these two is whether that information should be conveyed to the consumer i mean the consumers are going to know that other words if you have a preexisting condition and you don't tell the insurance  company sure won't know that maybe the insurance company's going to be checking that out well i think you're under these facts in particular you've got an insured was told of that information too and so you already have the information being conveyed to the insurance company  weight loss seeking a prescription for weight loss track that that insured never took a prescription for prozac for one month that he stopped taking back pain and use these issues to consider yasi out of place flame for damages not disclosed to the consumer coupled with the post claim underwriting is unfair deceptive and the other the point i would make on it your honor having completed one of these health care applications with which most of us all this is probably  nearly impossible to make at least one misrepresentation after action that's asking for ten years every doctor you saw every drug you took every pill into so if interest companies are allowed to this work through your records to find any reason to cancel coverage it's unfair and deceptive all they have to do is tell the consumer so if i have health insurance in place i might decide it's more corny to keep that insurance and not have this two year period because you're saying one hundred of your current company is going to how the insurance process works agents meet pecial incher they have conversations there's a discussion just like happened here i took this for a month three years those that material pass on material don't put it down the agent tells advocate doesn't put it position to safeguard against us is a consumer filling out the application with the agent or is it the carrier who could could that who could conduct the underwriting prior to issuing the policy many states have already ruled the post claim underwriting is is it's not it's not acceptable it defies place consumer protection statute if i like just fundamental fairness and here we've got both the post claim underwriting and this two year test well because when you put it all together they wait on the plane because their position should have gotten a hold of his medical records and they should have checked to see kidney stone showing up there so that if he had lied about it when he applied for the policy they yes there are three reasons why first invite the court in plain makes it clear that the carrier and the agent had undertaken no affirmative duty saying they were going to investigate the health information put in that location here there's an issue with this application at that point rather than just sit back and issue the policy and say well we think this applicants lie but in the past anyway and if they try to make a claim then when they on if they don't make a claim then we profit off it the court said in balance what you hypothetical scenarios ok i just ask you a scenario right is it your position first of all that the insurance companies are going to have to go over his forty five years of records and compared to his application upfront that is that is are ok how much do you suppose that would cost that united said they don't gather the records for cost savings but again the eight hundred premium from the insured for two years and then wait anything they can claim then they're willing to investigation when bradley determined arthritis was not on the application called the agent and the agent for the first time said the word vipers that poll basically that these insurers proposed in church must have to bait information to r h if it's not on the underwriting investigation with what difficult it was just to get gather information application and the underwriting process occurs when you take the application information and then you gather the records to determine whether it's an interval rest and that means or happened says is it consistent to say that after insurance companies been cheated by pickle they should have done some investigation later on but the question is who is in the best position to insure against that risk if an agent is going to take that action is it the particular when they had notice that something was wrong with the application they had a duty at that point to do more than a duty at that point to find out hey is there something else that we're missing about this and that's what the b conveying medical information to the care the court found did not convey that information he had a duty he breached it the damage is caused by the russells it's clear they're forced into bankruptcy they've lost their insurance coverage and these underlying its application to correspondence that says read this application make sure it's correct we did exactly what they said we should have been and in fact this is almost what it had he just read it an breached these duty to read it now claims to stop it when his hands are clean it says he didn't read the policy and discover exactly what the writing was trying to figure out make sure everything is complete we sent that letter we did exactly there said we should have done that's exactly how us does an innocent insurer protect himself either from them the state or the intentional air of an independent producer who we may be bound by we have only one means arthritis we have a business record that says two things one for him i v and then another note for agent but we say never remembered actually having any conversation with bekele based upon reviewing that business record  can do to protect ourselves from this situation and i believe in the marion joy base that we rely on obviously heavily we are in a cool work with their approach we did have that subsequent independent communication but you are allowed  were will check and see and that is a disputed fact but i think the court's finding is only that but i was told this prior history obviously the part of the the carrier didn't get it but they took those steps to assure they had we cannot encourage a game of hide and seek in the to the insurance industry looking for a medical history after all where does us l n h go to learn this guy's part of medical history the application sense of us  and that's what we learned from the prior application so illinois law says post claim underwriting is not unlawful that's grantees there is no public harm here in a contest every damage in this case is a punishment they had no loss everything is a windfall the section one fifty five sanction a simple question was that a bona fide dispute every reason we cited in our brief there was a bona