ten of the policy the choice of the opposition second star weighed rescission when it agreed to sell this policy to heights despite explicit knowledge of at least two events upon which it alleges it bases its research in claim law that infects the court's decision with respect to the waiver for example like this give a quick example you know what i'm going to get to this but what we know about what they knew about the canada pouch incident what those e mails meant and whether they were admissible all of that's policy five point one zero let me tell you i mean we cite a lot of maxims about what recession in toto it cetera in light of their opposition the most important line and if i might comes from the sahara brothers case it's a first apartment appellate division new condition it's not this doesn't say little conditions or big things are important things you can't have your cake and eat it too if you're going to lead precision as if that contract never existed on the face of this earth then you got to take the whole you're owners have a good think about it if it said a lot of civil france about a lot of south africa or what have you that has only new york was only potentially a political and it was a benefit for sure the standards of new york a very different from pennsylvania following the advisory jury yes it was an advisory jury in art then that's why you're here i'm underscoring here everything i'm telling you this morning doesn't depend on those factual findings the issue of gratification is a pure legal issue you have to decide you have to look at the cases example of where the lower court intruded documents and evidence in the case is testimony that says that is a he said not credible with respect to canada two thousand and four march of two thousand and four  but not not made known to my done this because this is an important one of the thing yes because i was raised in the old school and when i was caught when i get a request for admission you lie awake at night worrying about procedure and substance i read a request for admission on this issue our big point on on the fact issues that i'm not getting to right now is that it clearly said as of may one thirteen she was on notice that this was one that was after that date she was on notice because she knew in march of fifteen that there was one so if you this is a case in which the trial court found as fact that heinze made multiple intentional misrepresentations in its application for insurance it's a case in which the court found that heinz question and at the same time failed to disclose the same facts to star so that he could serve the highest could persuade star to issue a policy on the terms desired by star and at the price desired by starr those are findings of fact the specifics of them are as follows question six on the application asked has the applicant its premises products or processes in the subject of recommendations were complaints made by any regulatory agency or of any internal or third party audit over the last twelve months or had any fines or penalties been assessed against the applicant by any food or similar regulatory body over the last three years the answer given by heinz was no the truthful answer was yes heinz had been fined by the government of china for selling baby food contented with mercury nine months before it submitted its policy application heintz had been subject to a complaint in a subsequent audit by the government  china with respect to a separate contamination in the event involving nitrite in baby food that was ten times the legal limit allowed by the chinese government months before heinz applied for insurance and the canadian government had banned all imports by kinds from australia because baby food imported from australia three months prior to the policy inception had been found to  no sense to put it to the jury even for an advice a great pinion if it were a question of if it were a question of law and any terms it turns not on what's in dispute is not the legal with they're going to investigate and then they fail to do so for someone to resist the hypothetical but but the the burden is on the defendant is as on is i'm sorry the burden is on hines in this instance the party order of five hundred six hundred thousand dollars was two thousand and fourteen canadian wass which is one of the things which you cite in your kind of claim from susan as one of the material misrepresentations the  that because it was not disclosed were two enormous losses one of twelve eleven to twelve million dollars involving trade in that what we call a trade in a crate was and the other was the fact that there had been a mysterious contamination the testimony is that if you look hard enough somewhere in the files of being sure you can find that but the more he is well the fed but the fact is that the global head of insurance  your question to get it closer but i think the record shows there was attached to the application one of the questions said tell me or your losses in the last ten years whether they're covered by insurance or not the the attention there was instance is in one case involving the small i was was seen in the squid two and a half months earlier relating to a different last long since forgotten and undisputed what about the mysterious that's probably  you meant is that although i handed you something that said that this was a zero loss and i represented a sort of pride but that was truthful you really had a burden to go back that the district court did not give that fact enough weight i don't buy polices stated with respect your honor is that you should look at the totality of the facts relating to waiver and determine whether there even in that situation the court determined that what it would do is apply the choice of broad principles of what was there before him state and the application of the choice of moral principles in this instance with me bac to the selection made by the parties expressly in their contract and therefore so read your craw subject to the other imitation sort of high end of the under the restatement of contracts so the so the main difference between this on that choice not not to mention not only the third circuit but there were two other courts that went our way on this the floor of the policy was sold and courts across the country instruct if you don't like the language you got kind of on your i so form because the way the courts interpret it and then change it misrepresentation or what have you what's the contractual remedy we might have to charge a little more give a little more premium the contracts not been wounded avenue issue so we've got twenty five million dollar loss in value added we'll say if we misrepresented you got  to may of two thousand and thirteen but when it when the insurance companies and this case store was asking for that up to two thousand and fourteen how can you say that food or to disclose would be clear this would be subject to clear but misadventure testified and it there's a lot about china one china has the highest nitrate levels required in the world there is testimony from our expert from england not near our quality assurance guy verdict based on these other two points he concedes therefore this american law and this court needs to read those cases and then and there's no footnotes for conditions this was a condition that's a big deal to say this policy never existed on the face of the earth and if it didn't  and read it and that was right there in the application again this is the fact those are issues those are in evidence this court needs to determining what the legal consequences and i don't quite agree on the advisory jury the supreme