have been issued at the standard rate this is important because the district court is relying on the redondo case and in that case the omitted information would have changed the rate of the policy which wouldn't have the issued it had he known this and then he would have waited but i suppose in the hypothetical question your honor in the deposition which we started to our excerpts is that if he had the information and known the results as they ended up being know they get a series of bloodwork and other testing after that but the initial application was a full sixteen then it was then they screwed that up which is never addressed by the district court two that's another error that they gave the wrong application which goes to the agent  his negligence was that also a question of fact and then on april twenty eighth they send in an application with a payment which at that point binds the company and as well as the agency that at that point in time the polic he never mentioned that to the martins so they have no knowledge of the results of the stress test or that it was a problem he said many e k g s and or a stress test in the past for other issues that also were normal so there's facts that's misstated by the lower court issuing this decision concludes that oh that test is abnormal that's not true dr neither confirm that a deposition that it's a false positive he also indicates in his decision that mr kelly the agent specific questions on the application and that mr martin specifically replied to these applications questions that's also incorrect and that's also stated in our excerpt eleven page five where mr kell application himself and says in the present proposed insured have you asked each and every question exactly as written and recorded the answers he indicates no and says i've transferred all the information from a prior application that is important because the prior application in is the fact that when an agent which they rely on which they did in this case incorrectly fills out the application and they don't read it they can rely on that agent in signing it if it's incorrect it's going to be on the agent and that is the is well aware and arrested thirty seven b protects the insured and allows recovery even if there are some omissions even if there are misrepresentations and has to be material and it's the materiality of this case that makes it a question of fact and application he should have disclosed that he had heart disease that's not at all the question in the case the question is whether he provided any accurate answers to specific questions in the application what was not disclosed and what should have been disclosed was that on april sixth only ten days before the first completed the application he called his physician complaining of shortness of breath the t and shoulder pain and his physician had told him those were conditions had reviewed it in the answers were true and correct sakin that wasn't the only time that he signed the policy because there was an incorrect form the policy was mailed directly back to him by the growth courage company and he agent and he was regarded as the insurance agent in the application process he wasn't a captive broker or an agent of the united farm and that's illustrated by the fact that mr kelley had shopped at several different obligation on the insured to in good faith reveal changes in their health that occur between the time of the application and its delivery if as is true here it's a policy that basically says change but it doesn't require even sure to ask at the time of delivery if anything and changed because the rule again is grounded on the good faith obligation of the insured to disclose if their health condition is changed in other jurisdictions but you're right there's not a published in nevada case that embraces that rule but that that brings me back to a point that is important to recognize there are four alternative bases for upholding the district  and each of them is independent one is the materiality of the omissions and those can be decided as a matter of law because if you take the reasoning of the rondo kndo case where the shell that the failure to disclose elevated blood pressure was as a matter of law material it would seem to follow here that he ensured failure to disclose that less than ten days before applying he had consulted his doctor for shortness of humans thank your honor whether mr kelly is actually negligent is a question of fact there's many issues that are there in regard to him he has a he admits he has a duty to quickly fill out the application he's the only one that filled it and there's an argument that the new april twenty eighth application was sent from a different broker but notably that application was already filled out based on with all the information from the original application that mr kelley filled they gave martin's instructions to sign it and send it back why that's important is when the martin sent that back they also tendered the first premium check with the first premium check paragraph three applies to this case paragraph delay caused and so if the applicant and he says it's reasonable to assume that the policy would have been issued twelve days earlier if that's the case then this policy is delivered at least twelve days earlier  or just to do the math april may fourth which is before you had any indication of cancer which is may eleventh so that is a non issue and that they're trying to create the issue so the only issue in this case your honor is whether or not the representations on the application are material those are issues of fact also with regard to kelly whether he correctly filled out whether he correctly provided t underwriting department would have actually conducted an investigation i'd like to point the court to the same act cert eleven in our exhibits which is the application of the problem the main thing that they're talking about is we didn't disclose d i respectfully disagree with that because dr need bauer's name and address was disclosed for medical authorization was given for them to obtain any records they wanted and notably he actually listed the date last  kelly incorrectly list as a date last seen january ninety nine which was only three months before this application the defense relied on medical information six months ago so if they didn't go out and get records from d several different insurers so whether was part of some information obtained in seeking out other insurers that i don't know but what is definitely in dispute are not really in dispute in the fact that he did not ask the martens any questions on that application he only asked one question had your health changed mr martin truthfully answered no because he had no information suggesting that his health had changed and on the each and every question exactly as written and recorded he answers no and signs it and he gives an explanation for why he didn't ask those questions all right but he just transferred the information  why would they even go out and do it there's no evidence of that that they would do that and that's a disputed fact and that should be for a jury to decide what they would actually do in their investigation of a number of things in regard to what with i guess the problem we have is that we have an agent can't wait who i submit to you as an authorized agent because he was actually approved and signed contracts with united but he was given instructions specifically to ask that question and didn't do it so therefore he has negligen but the duty to disclose as i stated previously i believe is a non issue because the negligence of kelly in the twelve day delay and also because of paragraph three on the application when she tendered the premium payment the date the effective da the policy is the date of the application which is no later than four twenty eight leaving the only issue whether an issue in long terms may tell you something about who least whose life happening correct and whether and whether the that kelly is responsible of the company for not doing what he's supposed to i mean those are issues that should be scrutinized against the appellant i think that a lot of scrutiny has been given to the appellant and i think some scrutiny should be given to the