would call the next case i'm sorry if it's george powers versus north american company for life and health insurance and there there are two issues which i think need to be addressed and this oral argument the st issue is our contention that what what was called an adjustable life insurance policy is ambiguous because it contains contradictory statements about the amount of premium or which which is what the policy called it but it or as a district court described it about the amount of the investment in cash value of the policy that was required of the insured in the district court's order which granted summary judgment to north american insurance company judge leon did an excellent job of going through the policy and explaining his view of how the and he went through the whole process of talking about it or writing about it as long as there was enough cash value to cover the monthly cost of insurance everything was copa stanek but if the cash value ran out then the insured was going to have to come up with additional funds to play the monthly cost of coverage and and it what what was really taking place which i don't i don't have any argument with was it a step of it being a seven hundred and fifty dollars premium every year it was that it was a situation where the north american deducted the cost of insurance from the cash value on a monthly by such and then the court explained that after the cash value became depleted in two thousand seven hundred and twenty years after the policy to have like the effect  the insurance company started sending what they call grace period notices which set out different amounts of money that mr baez would have to play to keep the policy in effect and i made a mistake in my initial brave about these a grace period notices off out from study of the policy that when they sign a grace period notice the insured had to play another seven hundred and fifty dollars premium that's not really what happened and judge len explained this in his or as there's enough money in the cash value to play the coverage he would get a grace period notice when that seven hundred and fifty dollars ran out he'd get another grace period notice of course in february of two thousand and fourteen he failed to p of the policy when mr by our flailed applying the full amount of the premium in february of two thousand and fourteen oral argument out i started asking myself a question that's it was is an ambiguity and a contradictory statement the same thing i need to be clear about that and there are several georgia cases wh ambiguity and contradict remains the same thing they're not shouted over can i have schemes to afford the result if we accepted your argument what would the remedy be i'm sorry if we accepted your argument that the policy is indefinite what would the remedy be done i mean the whole policy is just void what i think should happen is that mr bowers would be entitled to the policy benefit and also be entitled to  that i've read a policy that a dozen times i can't possibly calculate what it would mean there's a there's kind of a kicker because he took out a cost of living rider which he kept for about ten years and then wrote insurance me and said please please remove that from the policy because i won't pay more than seven hundred and fifty dollars annual premium then but he did pay more than the seven hundred and fifty dollars brought on several occasions to me yes he did pay more than seven hundred and fifty dollars on several occasions did me well as it's unclear whether they change the the death benefit from what fork from what it would have been back to one hundred thousand dollars but mr bowers clearly explained his intent that he didn't want to be more than one hundred thousand dollars because he had more play more than a seven hundred and fifty dollars premium and the contradictory provisions in the policy which contradict lance analysis or several number one the plan periodic premium according to the policy seven hundred and fifty dollars payable an initial premium seven hundred and fifty dollars the policy cost and benefit information she states that the annual premium seven hundred and fifty dollars for each year of the policy is projected life it puts it out a list of each year of the policy projected like the actual the annual display of coverage did the same thing seven hundred and fifty dollars a year for each year of the policies projected live and the policy application stated that the total annual last premium was seven hundred and fifty dollars so we've got we've got an analysis by the district court which i don't have a great deal of argument with but that analysis is contradicted by act clear terms of the policy that state that that at the premium o seven hundred and fifty dollars a day so when you've got a contradiction what do you do the cases clearly schley that the that the that the policy has got to be construed favorably to the insured and if you carefully read found that the reasonable insured the other words reasonable expectations of insured would have been consistent with his analysis so number one we believe the policy was was clearly contradictory in the number one paragraph in the policy states as follows the current cost of insurance and the current interest rate may be changed our discretion but will be less favorable than those guaranteed in the policy well if  can't get the right to change the monthly deduction by changing the interest rate and changing the cost of insurance there's no way to know for a figure to be able to figure out each key as to what the end up in the end the policy goes over that the annual policy goes on to say that the interest rate the guaranteed interest rate can be changed at our o there is no way that any reasonable insured can figure out or has any method to determine the price he or she has to play for this coverage and of course what is a definite want to price  there is no contract so there are position about the same question their opposition about that point would be that these additional charges over that charges which should have been doolan morning scuse me good morning and may have please the court counsel my name's elizabeth jewel and i represent north american company for life and health insurance in addition with me is henry patrick housekeeper whose senior coun for north american company for life and health insurance as well as my georgia colleague ted koppel your honour's appellant asked this court to disregard the complete language of the policy which georgia law holds you must construe as a whole in favor of a narrow focus on one concept the idea of an annual premium which appellant would also have you find was fixed and unchanging but the policy doesn't use the words fixed annual premium it does use the word premium it certainly does use the word premium your honor it uses the words planned periodic premium in but i'm even more teen of the policy and explains in that section exactly how that premium works together with the provisions of the policy so we're certainly not contending that that doesn't use the word premium but the language in the provisions of the poly policy explain exactly how those plan periodic premiums work you know and those i agree with mr for the just landed a good job with this case but the story is you know this is my thing for the morning i guess in terms of i mean we've got to write an opinion in this case and you know the story of a wife who was his life was insured at lapses for his fare to pay one hundred dollars after all those years is is i mean i would think that that would be a story that your company wouldn't wouldn't want to have in the federal orders well your honor i would respectfully submit there are other aspects of that story as well there are aspects of the story that when this policy was additional originally purchased the owner made a choice to take a seven hundred and fifty dollars premium but also made the choice to elect a cost of living writer that increased the death benefit by eight thousand dollars every year and the record shows your honor that every year in accordance with the terms of the policy the policy o sell the product pardon me does your client still sell products like you're under this this particular policy was originally issued by a successor company but the idea of a flexible premium universal life policy is fairly quick as nearly every insurance company sells these types of products but in terms of the question you asked me about the story being told there were choices that this policy owner made over the years about how he was going to apply the premiums to fund the cash value the cash value also accrued an interest component and the policy clearly sets forth and i think counsel's carotids i i agree that the district court did an excellent job of laying out exactly how the provisions of this policy all worked together the fact that there was a monthly deduction from the cash value every month was not hidden or in any way unclear it's in page three of the policy and let me state following up on judge martin's question i i hear what you're saying but i mean just sort of the visuals of if you will of twenty seven years of payment and literally a few months before she dies he misses  payment and i wonder if it would be helpful at all for you to consider going to mediation and trying one last time to work this out before we make a decision here well and  honor respectfully that the parties have engaged in mediation that's true but sometimes we find that after an oral argument it's helpful to do it again and we have in the past sent parties back to mediation after oral argument and if you can't work it out then will decide the case but sometimes the parties find that to be useful i understand completely your honor and i believe my client's position is they are always open to discuss mediation they were open to discuss mediation before we appeared before you today we were open to discuss mediation before we briefed the case and were open discuss mediation before your honor's ruling certainly but i would go back to again this is a contract like any other contract has clear definite and unambiguous terms and while the result of a party making the choices they made may be difficult for that party at the same time this is the contract that the parties bargained for and the fact that the impact of the choices that the policy owner made here about how he was going to pay his periodic premiums now have a negative effect doesn't make the contract suddenly ambiguous doesn't change what the parties bargained for here and that's what you can't get away from is that there's nothing unusual about an insurance policy that has multiple provisions that work together in harmony i heard mr ford talk about contradictory provisions in the policy there are no contradictory provisions in the policy as i said the concept of a monthly deduction from the cash value appears on page three of the policy and there's some very important language in the policy  i think the core absolutely needs to consider and that page three of the policy it's specifically says that coverage may expire not only if premiums aren't paid but if premiums are insufficient to continue coverage up to the date of maturity or if coverage may also be affected by a change in values that's right there in the beginning of the policy now appellant wants to say no there was guaranteed seven hundred and fifty dollar unfair fixed unchanging rate but that's simply not what the policy says even the statement of policy cost and benefit values that counsel mentions in his brief repeatedly say at the bottom that that annual statement which is a snapshot in time at the beginning of the policies life is not a projection of what's going to happen in the future does not reflect the impact of the cost of living adjustment that this policy holder elected and is not some sort of guarantee that the premium the plan periodic premium or the amount needed to keep coverage in force is going to be unchanging so you're how in the parts of the policy the amount of the payment the total payments indefinite and the length of the contract is uncertain right i mean that i mean in other words it contains overtime and your honor i wouldn't agree that because there is a built in possibility for variability in values that doesn't make the contract indefinite in fact oh no i was just values are bounded by a guaranteed interest ok but they but they can change over time they can we agree i think in the law that says that the fact that the rates can change over time makes the contract unforeseeable are and i'm really thinking about another argument that you're making and that  statute of limitations argument fails to the contrary your honor i think if you look at what is exactly being claimed by this apollo and in his complaint his complaint is based on the notion that he was guaranteed a fixed annual premium of seven hundred and fifty dollars a year that is the grab them and the gist of his complaint he is not complaining about the manner in which it changed he's saying this contract is ambiguous because it says that my annual premium is seven hundred and fifty dollars a year and what he alleges in his complaint and in summary judgment is that my client breached that contract by requiring additional premium payments above and beyond the seven hundred and fifty dollars a year i'm going to try again are it do you say that the contract is entire or divisible i apologize i couldn't hear what you said your honor do you characterize the contract as entire or divisible it's an entire contract your honor and i think if what you're getting at is because there are payments required periodically but that means that there is a statute of limitations that runs each time that's not what the case law in these types of cases sat the st time the breach happens which according to pla complaint is the st time he's required to pay more than seven hundred and fifty dollars a year that happens in two thousand and seven that's when the contracts cash value was not sufficient to cover the monthly deduction and he began getting grace notices in two thousand and seven the told him you need to pay more than seven hundred and fifty dollars a year that is what claimant but what about for his unjust enrichment clim your honor i think the difficulty with councils unjust enrichment claim is that essentially it's a repackage of his breach of contract claim procedurally it fails because he's gone to the district court and affirmatively said there is a conduit if there's no procedural failure for that argument then your honor i don't understand in any way how he can argue unjust enrichment when again the terms of the of what he is claiming he was entitled to were clearly provided  there has been no unjust enrichment here he has received exactly what he paid for insurance for the duration of time that he was paying for that coverage what he was is to have continued coverage beyond the time he paid for it that doesn't work under an unjust enrichment theory either but i would submit that again the procedural violation here is completely dispositive he has affirmatively stipulated to the existence of a contract he can't in the same breath argue that he's that my client has been unjustly enriched again this will make alternative arguments all the time i mean it's certainly at the pleading stage your honor but once you take the position  summary judgment that there is a contract here that entitles me to judgment i believe the law in georgia says at that point you are no longer talking about in the alternative but again your honor even leaving that aside there is no  unjust enrichment when this policy a little risk provided with insurance for years paid for that insurance for years what he wants is to continue to essentially get the insurance coverage without having to pay for the bargain amount and what he's asking this court to do is rewrite the contract in a way that will actually completely ignore all of its term unless the court has any additional questions for me i would simply ask that this court affirm the decision of the district court thank you very much for your time and for your question i just thank you for your help only definite price only definite my out that the insured was provided by this policy was at the annual premium of seven hundred and fifty dollars policy said that five times  plain and unambiguous the price issue the price issue is still there and there's no way this policy can be read to provide any insured with a definite price there's no key there's no method there's nothing in the policy that tells an insured what he or she what he or she's got a plate for this monthly cost of i want you to be able to make your argument but i'm about to pop to ask this question so you know the court provides maybe a mediation service for free i mean right now you're in this case for all or nothing and maybe that's exactly where you want to be but you know i mean most cases that come up here on considered orders from district judges get  d so with that in mind would you be willing to return to mediation on this case try to explain or plain and unambiguous the price issue is too indefinite to be enforced and as far as the statute of limitations is concerned you can't have the statute doesn't run on the policy benefits until lives are and i wa harm until february of two thousand and fourteen there may have been some additional premiums that mr bowers played back in two thousand and seven that i guess technically could be barred but those he played they played within a six year statute of