million dollar life insurance that gabrielle and purchased from lafayette insurance company and to move maybe to some of the key issues there is  think so and there's an issue the gabrielle enough submitted emails requesting the information about the conversion indicating you wanted to convert this is in one think the summer of two thousand and and ten there's an issue as to when he got the responses he did he believes he didn't get the responses timely or the applications timely to submit it within the five year period so that that certainly is is one significant issue on on the appeal and he claims he he did give them the e mails and the correspondence indicating he wanted to convert the policy and we believe a close reading of the policy would indicate that that in fact does trigger the conversion the policy language on the conversion does not indicate that  end the policy doesn't tell you how to actually go about filing an application to convert the policy so it's one of the insurance company's responsibility to inform well  that's our our position is well that not only does c insurance company have an obligation to inform them but when it regards of benefit or losing of benefits such as this conversion to her whole life or cash value that they must give the insured gabrielle in specific notice of the date that this time period will will no longer be subject to conversion so the the lafayette's lapsing the policy gabber alan makes a payment in november twenty eighth two thousand and ten and then there's an issue whether lafayette laps the policy timely or not and there's an issue now we have raised and we did not represent mr gabrielle in at the district court level but have raised at the ap level what we believe is an exception to the general rule that an argument not made at the district court level can be raised at the appellate level when it involves an issue that is just a matter of of law our interpretation of law and it's our position that as to this lapse the issue is did there's no issue lafayette did not lapse of policy you they lapsed it they did not give him sixty one days to give everybody agreed in the district court that it was a lapse in thirty days correct everybody agreed industry and that's the way the district court operated you can't change th honor i believe there there are several the first one would be as to the district court struck the affidavit of mr gabrielle and that was submitted in response to the summary judgment indicating that it was basically a sham affidavit that it was different than what he had testified to in his deposition and we have discussed that issue and cited the case law that would support that  affidavit should have been accepted there were e mails and correspondence that supported that gabrielle and had in fact submitted issues to the insurance company about this conversion in the summer of two thousand and ten in his deposition which actually occurred several years after two thousand and ten he basically said he wasn't sure  when he made the the request for the conversion and he didn't he didn't know he submitted in an affidavit basically after reviewing his correspondence and submitting the correspondence with with the summary judgment that in fact he had discussed with lafayette the of this correspondence the the issue of one thousand conversion of the policy in the summer of two thousand and ten so we believe that that affidavit from mr gabrielle and should have been part of the record in should have been considered on the motion for summary judgment for that would create a travel issue that is to whether or was not raised at the trial court but we believe constitutes a any issue of fact because there are no disputed issues on lapsing at the trial court lafayette a lapse of policy less than sixty days and we believe that the only evidence before the court was this insurance contract that had the sixty day lapsing period but you let me out let me ask you this i mean you know either i'm not asking responding you're not familiar with the record sufficiently but i thought mr gabrielle and had been pain his monthly premiums with the pay the premiums and when he filled out those forms he left them he didn't specify the amount and then at the end here they say well we're not going to use this form anymore because you didn't specify the america  authorized withdrawal documents and he would sign him and send them in and frequently it would just have the policy number and not a specific amount their policy language specifically in it does not suggest you have to fill out the policy the amount of the premium it indicates that in fact the company lafayette should take whatever is owed on the particular policy in premiums and in with with drop and that's what they've variety of health issues and i believe had submitted a claim under the waiver provision in the policy that if you have health issues that would waive the premium so there was some health issues i'm not sure it was all timers your honor but he did he did have some some health issues but to get back to the pre authorized withdrawals there there certainly is an issue a fact that they had been used by mr gabrielle in the past they had not been filled out specifically now all of the sudden in january of two thousand and eleven a lafayette wants a multitude of details on them though their policy doesn't require that the policy suggests they can be submitted it was signed it had the policy information on it and all they had to do at that point was go to the policy see what was owed in premium and use the withdrawal as they had in the past to do it so we believe that that creates an issue of fact and that this polish c should not have been lapse because had lafayette properly used those pre authorized withdrawals that the policy would have been properly paid up to da a contract the contract imposes obligations on both parties here mr brayley and the appellant is actually trying to impose a transfer those obligations to the insurance company the two issues here whether the were rows from a failure pay premiums and that was mr good brilliance obligation or the policy the second issue in the case is whether he had the ability to convert the policy to a whole life policy like term policy to work whole life policy that that's a significant benefit then you don't have like a medical exam or something you're under it's the change why does somebody care about that the changes the type is level and one would have for you but for him this was a significant in his estimation for him it was a significant benefit the opportunity to convert it could be your honor it was and have to  good it depends on your situation you know you are insurable it might be cheaper to get another term a life insurance policy if you're not insurable then the ability to convert might be a valuable benefit ye policy he had through for five years after he'd given his age he had five years to convert right yes your honor so that date sort of rolled around about the contended in a declaration which judge o'connell believed and struck from the record be disregarded as a sham and affidavit in which he contended that he contacted the company and we quested a application to convert the policy now the key issue here though is is even assuming that was true and was entered into the record and considered by judge o'connell that doesn't mean that you converted within the time frame you can ask for a number of applications throughout the whole period of time of five years but unless you timely submit the application and it's process and if so there is where w sufficient to trigger his right of conversion because the right of conversion is triggered by the not triggered by the request for the application the that is that what you're telling me is that in the policy  know the policy tells you that you have the ability to convert within five contract years so you have the ability to convert now the process them selves is is an application is required in an application to convert other than that i want to convert you your out your out of what's required is that the calculation of the premium and an acknowledgment  to five thousand dollars yes i'm possibly wrong about what you know an issue in the case is whether he pays as premium well if he were not there yet here you know the premium is going to be significant and significant in the fact that you see that he submitted in january what he thought the premium was and that was twelve thousand dollars a month for the conversion so when he submitted his application he had some idea what the out but so the twelve thousand dollar amount up or to convert here must be valuable to pay twelve thousand dollars a month in the very life insurance it is because if you believe that you want the policy to continue for the rest of your life your honor and that you want to pay the twelve thousand dollars a month for the rest of your life ok well  honor and i think the context of that question needs to be he has to be put in place with the parties here mr brilliant was a licensed insurance broker an agent state of california for twenty five years he at the time that he took out th policy was in appointed agent of the lafayette life insurance company he knew was trained about these products about the procedures of the company he knew contact people at all levels of the company as shown by the record of about how his inquiries were directed so to say that he did not have sufficient knowledge of this is really not not a correct assumption for he got a copy of the policy he got he got a duplicate copy of the policy he understood the policy he sold these policies so where him to say i didn't know that i didn't have five years to convert when it's in the policy itself or for him to converse elisei i didn't know i had to pay premiums or i didn't know i had the timely it rings hollow i mean i hate to say it but when you have such a sophisticated insured you know he should not be coming back to say well i didn't do this or i didn't know that so that sometime in inch was it sometime in july or later in the summer that he actually did submit an application or that there was no doubt that he then notified you some even you will insurance company notify you as you get to the end of the five year period say hey you know if you want to convert this policy to a whole life policy is allowed under the policy you got to tell august whatever the date is to file an application if you want an application contact us and we'll send it to you your honor he was sent a number of letters periodically and it's undisputed in the record he at his deposition didn't doesn't deny receiving these letters so he did get notice in addition to the well sort of support his notion that he contacted you in august and said hey i want to convert maybe he didn't submit the application  maybe but not necessarily i mean he again he got one in zero eight zero zero nine and ten and there was no request maybe you want to start paying twelve thousand dollars a month well that's a possibility but if you convert earlier than your premiums are lower because your age is low they let me let me switch to this in the end you know the lapsing of the policy in the reinstatement period and whatnot why isn't there a factual dispute over whether or not he actually paid the premiums by by following the course of payment he the company corresponded with him told him that we have questions about the authorization form explained them in a letter to him which he acknowledged receiving provided him an extended window with the within which to forms to two reasons your honor one he was in a rears at the time he had the other ones what was due was the next next month's premium at this time he was also in a rear is so the question came up do you want to what's going to get you do you want what's normally payable which is it you current plus the next month's premium number one number two scuse me he also included his mother's policy on the same form the mother's policy is a as well as how you would want to divide up any premium that's withdrawn per the form if the company is guessing you know you're placing them in a in a position where they have to guess that because of the variable pa it's much i think he used one of those  either here as mother used one of those forms for his mother's policy at a prior time heat at the form that's at issue he put both but i have the one where they were separate just for the mom i'm sorry i saying that well this take care of my mother's and well when he was saying that he wrote proposing them to me i think that could be assumed your honor but the amount that needs to be withdrawn from the count is unknown and that's that's what's unclear without knowing the amount we could have overdrawn his accounts we could have played more than he wanted to as i said because the amount that was at issue in terms of his policy was more than just next month's premium you could always call the bank and they were we've got an authorization here we're going to fill it out and would want to send it is that enough money to call a bank you can't find a person's balance unless you have an authorization from the bank in order to it would allow you to ask what the what the balance of that person's account is but it still doesn't allow you to know how much that person wants withdraw if mr brilliant had a car payment due or a mortgage due and x amount of dollars was taken out and it resulted in he'd given the insurance company a check for twelve thousand dollars earlier very briefly to respond if i might in regards to these authorization forms they had the mother's policy number and gabrielle and policy number and authorized removal for the premiums the policy itself and we cite the language in our brief specifically indicates that the company can take out what money is due and owing on the policy whether it's one month two months they can take it out rather than doing that they decide within a month later that they lapse of policy if they would have followed their own policy language and taken the money out per the authorization which they done in the past they would not have been in a position where the policy would have lapsed and we believe that that constitutes a breach there's a material issue of fact on that that should preclude the summary judgment and the reason that that whole life policy is potentially appealing to uninsured is that end mr gabrielle and have actually paid over sixty thousand dollars on that term policy which if if that policy lapses money is just on it's gone yeah but if you convert to the whole life though the premiums are more he's getting a little older now that's like having an annuity you have a cash value on it so you build up it's an investment at that point so it is it is a benefit it it's something that he did he did tell them he wanted in a timely fashion so why would they want to give it i don't know the answer to that you're either more money they would make more money yeah and companies where they were paying out i wonder why were they paying out that nobody is paying attention anyway and those insurance go well i don't know your hon