clause in a life insurance policy as required by minnesota statute bar application of the misstatement of age provision in the policy as also required by the steam same statute is not valid versus where you just zero now you just aren't entitled to anything under the policy you have i believe that's what the court was looking at because had she said we know when she was born one thousand thirty three the insurance agent said then we cannot sell you this term policy and basically it's under minnesota law the magic age of sixty for term policy for various convoluted reasons so we would not have sold or issued there or that policy the fact is the older birth year one hundred thirty three then applied the statement of age provision and under this contract as it exists you're entitled to zero benefits and then a refund of the premiums so so it's your position that the cut that the policy is not  a ten thousand dollars whole life policy and in fact again that's due the law in fact the unity policy that she bought four years after our policy and gave a right birth date that was a whole life policy basically when you get over sixty when you're sixty or over there was a mistake i'm sorry it was a mistake in a district court that this a court that we actually offered we said court we offered this other policy in lieu of it we available payout from the policy to one dollar would have been ok but that's a number zero it's not and that's the grey area is it one dollar is it one hundred dollars is a thousand dollars i can't based on the  amiga case we are said where you get one dollar and not a refund of your premiums i can't believe the court would not also reach the same decision and that's the gray area and that's why there's an exception we have this issue is what is the minimal amount if any the must be of must be some floor the trial court must have been thinking of that they wouldn't would have gone the other way and this plain language of the statute does not provide for that except make a case in footnote number six of the of the opinion says the weight of authority is that the incontestably clause does not bar the misstatement of age provision and the reason being is that when you're playing it that really happened i wondered about where and on just briefly we're kind of the same situation we have here the insurer purchased a five thousand dollars death benefit policy but also as part of policy was a disability benefit of fifty dollars a month but you had to submit evidence of your disability before age sixty five he said he was born in one thousand nine hundred six in russia and he disability got disabled the smith is disability claim when he was sixty four so like this case later turned out that his certificate of naturalization and so other us government documents such as his draft records showed him between years older so in that case they said find a misstatement of age provision no disability benefits that's in the court mixed up because they also lowered the five thousand dollars policy but the court focused on that and not on the but the disability payments were cut off were not paid out because of the by this false statement and contestability because again it's a specific provision that meant that there's a conflict between the two statutes just like there's a conflict between an contestability provision in the midst of an agent or statute but when there's th about understand the question but if you're saying that the court could say imply that well the misstatement of age provision prevails except when the payment out is zero when you're basically again that that's you're making we're just you're passing you're changing the statute of the problem and you're reading into the statute or the phone the plain language and i think when you're the corby you basically were just waiting if i understand your question is essentially an exercise in putting form over substance whether it's a misstatement or an intentional willful misrepresentation the result has to be the same if it's a misstatement of age situation they the appellant has completely ignored the application of sixty one eight point one one which provides that if there is not a medical examination then the application and the representations as to age physical condition and family history history are binding upon the insured's there was no medical evaluation in this case there is a representation that there was a pair of medical examination which is at the  joint appendix page one hundred nine but it's not a medical examination or would not have the proper para in addition to that the para medical examination indicates that the applicant's date of birth was the nine hundred forty three birth date so they found through their underwriting process with a pair of medical examination that the birthdate was in one nine hundred forty three date so if sixty one eight point one one  it has to be to a misstatement of age situation the only exception to that would be under sixty one a point one one where references this doesn't count for a willful mr presentation well if it's a willful misrepresentation which when i say this is an exercise in putting formal over substance farmers in this case has thoroughly tried to avoid same that we are rescind in the policy based on misrepresentation because they want to avoid application of the contested in contest ability provision however when we brought up in rebuttal sixty one eight point one one when they switch gears and says well it was a willful misrepresentation and therefore that statute does not apply i think the lower court judge clearly saw through this and simply came to the conclusion that it doesn't matter whether it's a misrepresentation or a misstatement because operation of law would result in this policy being void  issue as my colleague admits there is no basis for this policy to have ever been issued under farmer's own rules and therefore there is no policy and to try and artfully articulate that we're just counted a misrepresentation completely ignores the requirements of the in contestability provision in the purpose behind it as lower court judge articulated in her memorandum decision but really can't stress the importance of the application of sixty one eight point one one in so far as there was no medical examination in this case and therefore in all court the statements made in the application as to age physical condition and family history of insured shall be valid and binding upon the company unless wolf with false or intentionally misleading that statute has to be squared with a misstatement of age statute and you can't have it both ways and farmers would like to have a both ways and that's why it seems that all their arguments here are a moving target if it's this they say no but then if it's this and they say it's this can't be it's neither one so as a judge articulated in their decision there's only three things that can happen here either the it was correctly stated it was intentionally misstated or it was accidently misstated no matter which one of the three it is there has to be coverage in order to square all of the different possible statutes and policy  when you have a policy which would be rendered void no benefit to the insured as a result of the application of a misstatement of a's provision then you really in effect contest in the policy itself and as counsel indicated this policy would never have been issued if the nine hundred thirty three birth date had been used on the application because it was impossible to give the policy and so this is really a revocation or a in validation of the policy that was written she received no benefit from it whatsoever they did offered they did return the premiums a life insurance policy that you take out and p premiums on for twelve years and then subsequently come to learn that you actually got zero for it only the refund of your premiums is not an insurance policy as it can be understood for paying premiums for twelve years and that you know brings you back full circle to the the pembroke decision which i cited in the reply brief which put some burden on farmers to accurately examine the stuff and it's the whole idea before behind in contestability provision that to issue a policy to an individual and then decades later come back in trying to argue that they get zero is really unfair and that's the whole point of the in contestability clause which says if you don't do your homework well then that's your own fault and in this case farmers didn't do their homework they didn't have a medical examination they had a merit a pair of medical examination which actually did find as i said see a page one hundred nine that she had in one nine hundred forty three birthdate so there in own in house investigation supported the application and then wait twelve years and come back and say no wait we want to change ability as it were it could be the reason behind the statute existing for the misrepresentation of age or the under representation of our age however and willful misrepresentation as to your state of health if you have an advanced form of disease that would very quickly end your life and you misrepresent that but you make it for two years that could be very much more impactful on the  underwriting an actuarial analysis than the misstatement or understatement of age by a decade or by a year or by two years so to say that age is the one and only criteria that has a special from a model well i agree it's fundamental however sixty one eight point one one says age physical condition and family history so of they put those three doing anything other than upholding the lower court decision is really putting form over substance in terms of whether it's a misrepresentation a willful misrepresentation or an accurate statement as to real age even if as a matter of hypothesis we were just to disagree with the district court there's still a question of whether in fact the age was misstated because there made a fact question that a search company would still have to prove that has it been determined as of today what her state of person is or was july eleventh nine hundred forty three that's on her birth your having been determined but there was no factual determination on that because it was deemed irrelevant what her birth date is because confirmed it under minnesota law then what of it this way what duty was there upon the agent to do other than what the agent dead here when he accepted this person's allegation of her age her dat reply to three points first of all i'd like to discuss the statute sixty one eight point one one which is when misstatements don't invalidate a policy which was referred to at the medical  completely misread the statute it's goal it doesn't apply it basically if quickly in any claim upon a policy issued in the state with a previous medical examination comma or without the knowledge of or consent of the insured comma or in case of a minor would not accept the legal custodian statements made in the application as to the age physical condition and family history of the insured shall be valid binding upon the company and was willfully false what this statute means is that if i pay for a life insurance policy and i check out do you have high blood pressure and i say no and they don't do a medical exam on me they are bound by that that what this doctor does is it prevents the insurance agent legit birthdate so she the statute does not apply because of that clause right there this statute is where if somebody if i go in to insure my father and i say he was born in july one thousand forty three and they never verified off my father they're that's what that statute is and that does not apply here because the medical examination has nothing to do with this issue she consented the insured was there and consented and signed the application to july nine hundred forty three second regarding the burden of proof does not involve even if that was where that where the the contention was that the that the insurance broker was indeed negligent writing down the wrong date in the court and that ruled that the statement of age provision just appl doesn't take into account who made the mistake or why the mistake was made there's no looking looking at fault or culpability or whether the insurance commission done due diligence is it's a statement of age and you just apply pursuit of sta