ended up and it should have been decided that the pretrial motion stage united brought a motion for summary judgment based on the breach of contract claim that had been asserted and it also brought a twelve  six motion based on and negligence claim to have been inserted the judge listed in his written opinion all the elements which taken together show that same elements backed up as the breach of contract claim and there was no separate independent basis with a negligent claim instead however of granting summary judgment based on the absence of a breach of contract claim it would withstand analysis the trial court veered off into the direction of an equitable stoppel theory in theory is a question of law in the first instance as so whether that has a sufficient factual basis to support packet of bull stoppel the court the trial court found that there was equable stoppel in the case based on its comparison of the case before it with the morales decision how the michigan court of appeals in looking at the mo alice decision the court likened it to the case before however there is no comparison between the two cases and the morales case there was a final notice to the plaintiff's insured which said disregard the prior notice of cancellation the insurance is still in effect in the case before us today the final notice which the court found in talking about the elements of the case said there was a need to reinstate if premiums are paid by a certain date which is stated in the notice and the insured is still alive then insurance can be reinstated what was the data to notice your state referring to right now i know there are no the i mean your argument is that the the facts which may or may not stablish equitable stoppel were not in dispute therefore there was no issue of fact the jury that it was strictly a matter of law that that's correct or of it now them the district court having found as a did we went to trial at trial the equitable of stoppel theory disappeared there was no instruction to the jury regarding it there was no reference to it in the course of trial the contract claim not now this case from the beginning from the first complaint through the second amended complaint through all the pretrial motions from a to z at the trial was about notices whether notices were sent or not sent whether notices were received or not received because the other side was attacking  the presumption of receipt that applies to the situation united proposed instruction on presumption of receipt the district court we fused to even discuss that until after the jury had been instructed which means after oral argument and closing after the jury was instructed and after the jury was sent out to delivery when the district court did allow some discussion as to the presumption of receipt instruction  denying it and i would like to read into the record what the court said because it's so significant i believe the court said it was not saying it because it had quote concluded as a matter of law that this case should not go off on facts which related to whether notices were received or not received or mailed or not mail it's more the body of intent of the contract of insurance the policy and whether the whole thing together amounted to carrying out the obligations or not period close quote what does that mean i don't know your honor i've thought about that several times i've thought about it for the past few days getting ready for today i don't know what it means  i know i know what it means when he says he's he's not considering or the cation involved notices but after that i don't know what it means it sounds yet minute saw he say it depends on the parties intent not on the plain language of the contract that's the way i read it but i'm not you know unless the contracts ambiguous you don't usually look at flurry's tent if the contract i don't think it was you don't look at anything other than the plain language excuse me are there that there was no allegation in the case of and full well there's a lot of problems here i have a procedural question that you filed your motion for summary judgment and you you started to file your your fifty a motion for directed verdict but you didn't really say what the grounds of your directed verdict were and you just say that we move for judgment as a matter of law i mean have you preserved the issue by not specifying the grounds i tried to specify the grounds around or the the judge in the district court rather indicated that the decision was already made to deny the most i know but you still have to preserve the record even if the judge says i've made up my mind for appellate review you still have to make a motion you still have to preserve the record you have to make an offer proof if necessary and i just wonder if you did hear the the court said it would entertain no argument so so i then persisted to the point of saying that at that point you know are you did he threat is that where he threatened us sanctions or something he threatened me with sanctions when i persisted in the question of reading the deposition and the evidence ok even though the polling was in that i was a little different yeah  and the other thing is what you know the law is a little unclear whether you have to renew your motion for directed verdict after the close of all the proofs here it's clear you did not renew your fifty eight motion  are you sure you don't have to in this instance i don't think so because the grounds for saying that the summary judgment motion should have been granted involves a question of  law namely whether there was sufficient elements to support an equitable stoppel theory which is what the court decided the motions on so so that's an exception to the ortiz case ok what's your best authority for that ok that's the holding of that decision yes you're on what was the jury asked to find them and you talked about what they were not asked to find what i have and i can't find their verdict form i mean what what did they fin or what were they asked fine i don't have the verdict form in front of me i was your best recollection you live through this well with your recollection there in may mr morgan not correct you if your mistake it was very short and it seemed to be something along the lines of the the whole set of transactions or something for several months leading up to the to the death or to the sea was wh just wonder i mean well you know you said what they weren't struck to about and i just what were they asked to focus on and decide is what it must have been whether or not there's there was coverage that must have been the give to the jury the stipulation that was forty some items long focused on notice incidentally and i've not touched on attorney fees or interest in this case because i think the briefing is sufficient on that and it's obvious that there's a clear error there no more questions on that way for my rebuttal stands for the purpose that you have to the new with fifty p and once the case is fight in the merits summary judgment it's not any longer apply aren't you trying to in response to their motion for a summary judgment ok and it was now the west question is now you can't you are arguing they can appeal the denial of their motion for summary judgment if you say you either and we had a right one way or the other but the fact is we got the verdict once you get the verdict you don't really knew your motion for summary judgment and you don't at that time ask for declaratory judgment because you've already won on the m and that's what happened there your honor the other thing is they didn't object to any of the instructions let alone file a six fifty v the only instruction that they disagreed with exemption of service and then objection to him he was frivolous because first of all the court had identified the fact of why it was making th instruction cause that was the case was propounded upon the facts it had nothing to do with service of the payment request and there was another reason why not i don't follow that i mean o was a factual issue there they're saying it should have been he cited on that basis period is the law and it was a factual issue and we're all we said was it's a factual issue for the jury to decide the jury did decide on he is correct there but once you testify it's presumed but its rebuttal but one to testify you did not receive it then it's a question of fact it is not presumed any longer but somebody must testify it know because then it becomes a factual issue well let me put it that way it was a fact but let me let me just put it this way the fact that your client testifies that she looked through the mail and didn't see it that does not make the presumption vanish the jury has to believe that testimony find it credible in order for the presumption to be overcome so why should the jury still the presumption is there until the jury determines they believe her that happens in the deliberation room why should they have been told about the presumption boyd said before that there's two reasons why the court said it was confusing to focus even on that because that was not the issue when the trial focused on it t until the court all the evidence was in and then the court felt it was not necessary because you know i didn't but there was another point to that i really want to bring to the to the court here and that is the  even start with the delivery of any notice is supposed to be to the owner of the policy and to even presume that was delivered is false but your client is the one who asked for it to be sent to where it was sent is that some disputed right she asked at one point that the after speech changed only for it on the basis of the company because a company got its notice at the company headquarters she wanted it mail company down she wanted it mail to the home address to him but she be questions specifically when they knew that husband was dying on his deathbed she requested them specifically and hope by the way the policy also requires them to send it to the owner but tb questioned them specifically at that point when they were told the husband was dying by the independent insurance carrier in her i want you to send the notices to me if anything is beyond payment but has he been paid because i do not want that policy to cancel and you send it to me it was right on the records of the insurance company they didn't do that she specifically told me to send it to her she's the owner well they sent idol to where she directed them to send it to correct all she said to me because i was talking about the ad let's talk about the address not the addressee it went t address that she told them to send it to and that was for the owner of the company the answer to that question is correct right is correct and but your objection is said chairman k rather than claire k etc are actually and he was dying but she was going there that there was such a letter she looked at all that she has five been judged kept pledges point with which i agree is a very good question his point is that she asked for it to be mailed there and the presumption of mailing is crucial no your honor two reasons again she asked witnesses ken speak they'll tell you what they need to tell to get the million dollar insurance they'll say i never saw it but the insurance company gets the benefit of that presumption under the law does it first of all they would except for two things your honor number one she instructed them if she instructed to send to her husband but even her testimony about what she instructed is subject to the credibility test you wanted it to get that for the jury to decide in the right but what i am saying is this number one if you are going to realign the fact she told them to send it to her husband's name and address that had to do with qui moore did she look at the same excuse me but we unclear about whether or not this the claimant lived in the same household were not unclear about that are also he was a doctor you don't open his mail any more than my wife will ever open my mail for the annoyance company when she has just said i don't want to posses or lapse and he's not capable of opening the nightmares to finally do it when the man's dying i understand they're going to go by what she said about sending it to somebody it's not even the owner of the policy because that's the address of the company and the company has closed down a should have died when she says send it to me and tell me but there's another issue too you've got an order for the policy to seats you've got to send it terminate you notice they never did that and the state law as we cited it says it will not terminated until it from a nation notice is sent they do assent that well and admitted under oath several times  him did we did not send a terminations notice we never did to them the policy years ago they did notice is generally said if you don't pay within the grace period the policy made now i understand your state read it after the payment date twenty five days after it's both be sent and then never sent it term nation notice saying under the statute with the required to say and that is that the policy notices that she's getting as i just mentioned say if you don't pay within i guess the grace period the policy lapses so she's getting that but then they have this special offer period  and and she receives notices from the insurance company about that period and they say will reinstate your policy during a special offer period if you pay us by x date and the insured is alive  crazy correct right and so your equitable stoppel theory is that your client was led to believe that she could reinstate during the special offer period that's what she in fact attempted to do i think on february problem or the concern i have about that theory is you have two conditions in that theory in the notice the two conditions one send it by x date and you have you know pointedly noted that they disregarded that condition apparently but it also said every time eight times that the insured had to be alive and he wasn't unfortunately when the check was sentence so why wouldn't she  known that it would not be reinstated because of all the special offer period was revised several times ok but let's just say get those fish and i know i know you're frustrated he didn't get it that's why she never got it we don't know who got it they just know they paid forty two days away but today to get there is no evidence whatsoever it would you agree notice that special offer would you agree that if your client receives a notice that says you have to meet two conditions in order to reinstate during special offer one of which is the insured is still alive and she sends a check in when she knows the insurance not still live that she ought to know that it's not going to be reinstated because number one she didn't get special offer notices ok let's say you know we did pay them and they pay me on that but if she did gets and let's say this is a hypothetical question under that hypothetical how is it how can she rely on the notice that's what they were counting on they were told if you want to be for using lying is bad guy well i mean nobody stopped the payment from being sent him when they were normally do i don't know what was going on but no they didn't ba receipt of payments unfortunately it just wasn't sent for they did their best because they sent the notice twenty five days after this post to send it but that's because the prior agreement was late i mean the prior payment was late but it never happened over nine years all the sons because private where they had laid all the time for nine years on this insurance policy weren't paid late all the time no wait seven times that's isn't it and if you were really serious in the gentleman's dying it's weird to think that the insurance company is a stopped rather than your client but the point is is there she's watching him die not them they're waiting for him to die by all the evidence so that they can put him in a position that she doesn't get paid that's what they're doing because they've been instructed you know when you go around it they were instructed to send it to any late payment they don't send it to her she  know austin's deposition testimony rather than examine her directly when she's sitting in the courtroom she was sitting in the courtroom and we're told she was available at that point the only problem is is that she can walk out any time we could not why not you know take a shot of putting on the stand and see if she makes a run for it right well maybe so but you know ana we can't depend upon that she's sitting right there by her deposition yeah and she'd be out in the hallway we've got a witness from the time that the you read it read that you excerpted form your very unhappy about the manner of the real action but he said i'm not going to do that ok i just i'm just curious i mean i'm trying to recreate my mind what's going on in the he's complaining about occur that transcript at all and he put it on the stand anyway and had five days later and i mean mr murdoch you know as well as anybody i mean to marinate in that for five days i mean that said that's a nice all right thank you sir address the the absence of notice that we are told by mr morgan ralph has a very good reason for the jury's verdict that that night he didn't give notice that they would terminate as required by michigan law the statute that while the first notice if the premium isn't paid within the due date or within the grace period then the policy will allow does that mean that is that your is that your point that the statutory notice requirement is fulfilled by that lapse notice yes it is your honor and if one carefully reads the united fulfill the thirty day requirement with that and last notice what happens with the with the notices that the time is tacked on to the in the grace period that the grace period in t certain day and then there were three or four days beyond that when the thirty days were fulfilled and those were several days before the deceit and passed away so just give me th the date the operative notice was sent for purposes of complying with the statute what was that date when did the thirty day period expire in your view and when does and what and how does that line up with  dr kay passed away the you know this was sent december nineteen two thousand and eight this is for the final payment right there ok that's at first notice right must be paid all right notice is sent on that date and the the statute says you have to give thirty day you have to notify the insured thirty days before it terminates right and  before the eighteenth but we're tacking on some time correct ok we can chase that ok grace period that it's thirty one day extension then the period will or the the policy will lapse after that if you add in the statutory notice provision  then if there's any difference between the expiration date of the grace period and the expiration of the thirty days and the statutory notice provision those days tack on to the in the grace period which in this case requires no particular form no particular letter no particular font size and the font size of a red herring what happened here was that the actual notices were reduced in the course have your case gentlemen and the court will issue an opinion in due course thank you