ok our next case that for argument is great west life annuity insurance company versus harrington trying to rescind policies based on facts it had notice of before issuing coverage this court should overturn the district court's order granting summary judgment and order that with respect to the key disputed facts giving rise to great west's rescission claim and dr harrington's breach of contract claim that these items should be tried to a jury as an initial matter dr harrington asked the court to disregard footnote one of its reply regarding ambiguity and whether that's a legal issue for the court to decide we agree that the court to determine that ambiguity is a legal matter that the courts determine in this case that the musculo skeletal questionnaire at issue here was ambiguous there is no disputed fact as to what it said there is no disputed fact as to dr harry tunes responses there too and it is our position that the language in that questionnaire does not meet the standard under illinois law for sufficient specificity as articulated in the unger vs met life case which is not cited in the brief and for the court's reference that's one of the three hundred and fifty let me help me understand this area of insurance law so he provided these answers in his application correct correct so are his are the questions and answers part of the policy it is our understanding yes your honor that those application questions would be part of the policy and  believe i believe there is your honor and those cases have been cited in the briefing submitted to the court that when there is a contract ambiguity or there is an ambiguity in the policy that should be decided by the court i don't have the cites at hand so it's our position that that provision was ambiguous and that illinois law requires sufficient specificity and more under under the authority of the hatch versus woodmen decision which is cited in the brief that that court would find that this language was not sufficiently plain and simple or unambiguous and as a consequence great west is not entitled to rely on dr harrington's responses to the musculoskeletal questionnaire as a basis to rescind the contract of the last episode of pain and he says this is an inaccurate medical record and does not exist correct your out of the prompt for the musculoskeletal questionnaire references a condition of chronic neck pain as reference two thousand and eleven medical record that was written by dr pena ok but it also says with paris the z and bilateral hand numbness precisely what the basis of his claim is correct your honor and so the issue is that it was not a chronic condition so my client's position at the time was that it was not persistent or continuous and then on the occasion of his visit to dr pena it was a one off occurrence that did not recur shortly thereafter and it resolved on that occasion so it was his position that the assertion that he had a chronic neck condition as of december two thousand and eleven was in accurate which is why he responded in the manner that he did the application that the great western prepared and submitted provided for my client to respond to indicates there and that the applicant has the opportunity to challenge any of his medical records which was part of what occurred in his response to that questionnaire now it's our position the great west was on notice as to the paris yet and numbness condition because it had access to this pain a record this december two thousand and eleven record which was provided in the application is not what they base this question on they when they framed this question to when they this doesn't measure up with what we're seeing in dr pena's records correct and they sent in the nd one and he says this then he elaborates a little bit this was a one time occurrence due to a poor night's sleep correct your honor should resolve the next day  correct your honor and so the issue is that my client responded honestly accurately and truthfully to the alleged occurrence of a chronic neck condition my client disputed the existence of the chronic neck condition and therefore responded in the manner that he did he had been to a chiropractor right before he submitted the that's accurate you are correct that is accurate did the insurance that we know about those visits know the insurance company did not at that time kno about those visits if they know about the chiropractor they did not know about the chiropractor and the reason that is our position with respect to the initial application dr harrington was asked whether he had had any condition related to disorders of the muscles or joints that's question to sub g and the insurance applications which were found at forty six and fifty four of the record there's two identical copies of those applications and it's our position that the follow on question which was question four d it asks as a catch all other any other illness is items consultations treatments that sort of thing in the last five years if you haven't already told us about and he answered no to that question it's our position that's not a misrepresentation because of the doctrine of the jews generis which holds that when there is a list of items about which a general question refers in that general catchall question only refers to the items referenced previously great west did not establish and there's no information in the record to assert that the question about muscles and joints were disorders of the muscles and joints is something that would give rise to  information or disclosure about numbness or paris or that it would be reasonable for the applicant to conclude that a question about disorders of the muscles or joints would be inquiring about a numbness or a paris condition therefore when it went on to ask about any other consultation you haven't already told us about was referencing consultations related to muscles and joints and did not in compas this information about numbness and paris counsel make sure what we're reviewing here a lot of our questions and when i think about this case i will thought think it like a juror like what i think happened here i take it that's not what we're reviewing here we're hearing whether any reasonable juror could come to that conclusion in a summary judgment standard that's correct your honor and it's our position that with respect to now if the court determines that there was a misrepresentation in this initial application there's the question of materiality the case for anyone the way it's clear that that's a question that's typically reserved for the jury to determine whether or not the misrepresentation was in fact material but as of this way let's say i think i'm odd that this your client was he was playing games here that's just my personal belief let's say that's not the question the question is that could a reasonable juror based on the record before us come to a different conclusion correct correct or yes and it's our position that they could because of the end big u s language in the musculoskeletal questionnaire because of the via jews jim generis issue regarding item fo d and because frankly under illinois law the insurance company is entitled to rely on the truthfulness of the applicant's responses unless it's on notice that there may be an issue that's incorrect in those originals what about the e r forty dollars in the last five years have you had a checkup consultation hillis surgery etc not mention the yes your honor it's our position that that consultation pertained to questions in the prior pertain to the prior questions which included this inquiry about muscles and joints and that it's unclear that that is triggering or requesting information about  your physician is that there was no obligation to review the consultation with the chiropractor that's correct because it's our position that the application was not sufficiently specific in its request for that information now if the court disagrees it's also our position that great west was already on notice as to the condition no harm no foul it's evidence to by the musculoskeletal questionnaire the great west understood this could be an issue because of the dr pena issue record and made an inquiry subsequent to that which brings us back to the musculoskeletal question i thought i read somewhere in the briefing that your argument was on the r forty six that because it had medical questionnaire and that  chiropractors not actual medical doctor so it wouldn't trigger an obligation to reveal and not medical doctors treatment that is part that is part of what's at issue your honor and that came up in the request for cutting the claim documentation was filed after my client was diagnosed with carpal tunnel syndrome there was an inquiry from the insurance company as to whether there had been any physician visits for this item previously and subsequent to that point great west said hey you didn't tell us about the cairo and the reason being that chiropractors are not physicians under state one caliph and was there any argument as to this document this document his medical questionnaire i wasn't sure you were making the same argument as if this were your client would say look at medical questionnaire i'm thinking doctor and i did not actually see a doctor for this treatment but that's part of the issue you're on clarifying yeah there are two documents here so there's the document the muscular skeletal wear hand rights and the information then there's a document i just can't which is asking about which says medical questionnaire for a day income protection the application actually i was not talking about that one that's correct yes it's our position that it would not trigger certainly because of the items i've indicated but certainly to the extent that that's requesting medical information that would not have triggered that kind of a response now with respect to whether or not the court should have allowed this to go to a jury it's our position that the factual issues animating the rescission claim of great west and the breach of contract claim from dr harrington are the same great west wants to make this an issue of the contract being void ab initio that's fine if the factual issue animating that argument is distinguishable from the issues that we raise in the breach of contract argument they're not distinguishable it's the same central inquiry which is did dr harrington make misrepresentations were those misrepresentations material it's our position that that factual issue that set of items is what's at issue in both of those claims and as a consequence even the dollar systems case cited by great west would require that the court allow that issue to go to a jury like you see the rest of your time for i morning your honour's it please the court my name is joe for sure and i represent plaintive appellee and counter defendant great west life in the city insurance company still to its essence this case really presents only one question that is did the defendant present evidence to give rise to a genuine issue of disputed fact precluding summary judgment the answer is an emphatic no and that is the answer that the district court rendered in granting summary judgment in favor of great west there's two primary issues that were addressed to the district court in which we've been presented to this court in the st is was there evidence or was the evidence of misrepresentations by mr harrington uncontroverted and the answer to that is yes even dr harrington's deposition testimony acknowledged that in response to the application questions among others whether or not he had any sort of consultation not referred to in response to some of the earlier questions raised in the application he acknowledged in his deposition that his answer was in correct that in fact he had had consultations not mentioned in response to the earlier questions in the application and on this point i think it's appropriate to mention what some of the points that mr pere raised just a moment ago one of which is that a general question is somehow subsumed in the more specific question well i would submit your out of that the legal concept upon which mr pereiro is relying here is simply not applicable big applicable because if you look at the specific questions asking about specific maladies and symptoms and diseases and syndromes that are identified in the earlier parts of the application then you move down and the question in forty becomes are there any other consultations checkups that you had there although you did a general heading though of medical questionnaire for eighty eight income protection and  when we look at this from the reasonable applicant or the reasonable insured or what well the materiality question tinge is on what a reasonable underwriter would be wanting to know about and some of the questions that were asked about were do you have any and i'm paraphrasing do you have anybody to get me but the claim here is that he made is that mr herrick dr harrington made representations correct when he submitted his application and therefore you can void you can rescind the whole thing get your money back correct right yes right so how do we how does it do we look at it from his perspective no i  think the case law is fairly clear that what's material is what the questions that we're asking whether a reasonable under what it would have those questions are ambiguous there are there has been no argument asserted on the district court or to this court that the questions raised in the application forms themselves are ambiguous the only ambiguity argument that's been asserted by the appellant relates to the musculoskeletal questionnaire and as to those your honor i would submit that the questions were not ambiguous they well probably ask you this clear you know if i were feeling this out i would know that difficult questionnaire go through all these consultations talk about consultation with it with a chiropractor if i recall correctly or one of the initial application forms didn't it does but i don't think that that necessarily precludes the possibility that somebody could be treated and that's what i was asking from looking at looking at it from his from the applicant's perspective well but then i think you'd have to read it in its totality your honor i don't think you can take one term in isolation that appears on an application and conclude that they can only be asking about medical doctors when you read the more specific question and not just put the application so they get this application back and apparently they were able to say they acquired or obtained dr records from there that was from twenty six months earlier right so they sent him a set he's st response is really not no response correct so they send him another one right and i guess what he he must have thought well they know something and his response was this was a woman one time occurrence due to a poor night's sleep and no treatment was indicated now we just heard an argument that the header regarding your history of chronic  sixty five and sixty nine got it thank you rector and the prompt reads and this is referencing as as judged by as noted in his conversation with mr prayer regarding your history of chronic neck strain noted in december  numbness i would point out your honour's that at the time of his deposition dr harrington was asked did you understand that great west was inquiring about  chronic next train the answer was yes and then did you also understand the great west was inquiring about by let paris dijon and bilateral hand numbness and his answer again was yes so there's really no ambiguity there it was understood that we were that great west was using language that it extracted from mr harrington's medical records and asking specific questions about that and the answers that it got was initially this is a medical record that doesn't exist great west concluded that that dr harrington had not given the questionnaire the attention it deserved it ball it up again that's when he said that was a one time incident and it was all the no further treatment was necessary the st one medical record does not exist that seems to be consistent with his argument that there's a distinction between medical information and  other i can't tell your honor what he was in his head other than what he said in his deposition which was he understood the great west was asking about the symptom not about whether it was a medical record or some other type of record and and as to that great the the musculoskeletal skeletal questionnaires which by which it's important to recall were generated before great west issued the insurance policies at issue those documents specifically asked about chiropractic treatment relative to the same symptoms that were identified in the pena medical record and as to that there was essentially an answer of an age not you know the same just talking up the on sixty five and sixty nine and i'm correct your honor but it's only on page sixty five that he dr harrington even bothered to respond to some of the specific questions relative to this issue and question twelve please advise the complete name address and phone number of the doctor or chiropractor providing the treatment because great west was certainly aware at that point in time that you know some people see chiropractors for various conditions and that issue unconquered of the just you know in this application that back to original application when they just know that medical information includes any visits to chiropractors you know whoever any treatment provider i think that i think that great west was giving dr harrington the opportunity with respect to that issue in responding to the musculoskeletal questionnaire keep in mind your honor isn't great west intention when it issues insurance policies to necessarily exclude coverage it's looking for preexisting conditions because in a disability insurance policy it's material to the risk that's being assumed by the insurance carrier to know if there are certain conditions that exist at that time and so it was asking about the one incident in the record that great west had that made reference to it by the way any question about whether or not this condition and these questions were material to great west ought to be disposed of by the fact that when they were careful enough to see one incidence referenced in the two thousand and eleven records and asked about it and the answer in effect was we had this is never come up again i've never had another incident of it again it didn't occur no treatment was necessary and great west was entitled as a matter of law to rely on the truthfulness of that response but it wasn't a truthful response six weeks prior to the initial application form dr harrington admitted chiropractor michael peck and dr pecks records which great west did not have during the application process indicated that he had visited for bilateral hand them this in february of and thirteen just six weeks prior to dr harrington initial application two weeks later in march of two thousand and thirteen he's back again and this medical record says he's had increasing frequency of bilateral and this and yet dr harrington didn't think it was important enough to notify great west the fact the matter is your honour's if you look at the timeline of events that occurred in this case it's clear that dr harrington was aware of the fact that he was experiencing issues relative to numbness and pain and thing going in his hands that made it difficult for him to exercise his practice as a dentist and he applied for disability insurance and he was paid over a one million dollars in disability insurance coverage because he didn't think it was necessary to disclose to great west this these symptoms that he was having and the fact that he had consulted as great west asked him with a health care provider doctor and when it when it followed up seeking more information and asking more specific questions which he was entitled to do he didn't get a clear response though when your great was learned about dr pak what i'm sorry when did great was learned about dr learned about him in a toothpick it learned about him in two thousand and sixteen your honor great west engaged in routine monitoring of a claim to make sure as is common in the disability insurance policy setting to make sure that  dr harrington was that was you know fulfilling all of the ongoing obligations and requirements to maintain his disability status it obtained in that in the course of that a record from one of his other treating health care providers with dr harrington and said we see from your visit to dr mustafa sama that you have been visiting with a chiropractor who is the chiropractor and in response dr harrington for the st time disclose dr peck and that was in two thousand and sixteen that led to the terminations benefit ultimately after great west went and obtained dr pecks medical records which show that it wasn't just that he was treating with him at that time in two thousand and sixteen but he was treating with him as early as two thousand and ten and also then in twenty thousand one hundred and thirty four and six weeks prior to dr harrington reaching out in obtaining applications for the disability insurance coverage excuse me i three years after him but started how do they know about dr pak because one of dr harrington's other providers dr abousamra made mention of that in one of his medical records the doctor which is already in the application noted that come from i guess what's the source of it so so great west reaches out to these doctors who are continuing to brian's provide services to him and one of these doctors noted in one of his notes that dr harrington was treating with a chiropractor and that's the st notice that great west ever had that dr harrington was treating with a chiropractor but these other doctors were disclosed yes but those doctors were only disclosed in connection with the initial claim that they they were it to our knowledge your honor for example dr abousamra was not somebody that he was treating with at the time that he applied for coverage once the coverage was issued he visited dr  treated him for carpal tunnel syndrome so he only knew about him at the time that the claim was made plain ok got it let me ask you whether there is a misrepresentation if there's a determination that there was then the contract is void and there is no issued remaining to be decided by a jury or by the court other look at does that give the court decide that question st and then move to a jury under the circumstances of this case we presented information in our briefing with respect to that issue and that is that if there's a bonafide defense that's presented and here there is one then then the statutory penalty great west wants this court to focus on answers dr harrington asks this court to focus on the questions and i'm going to the question your entire position as i understand it turns on the word medical in the questionnaires that pretty much the essence of your the essence of the argument is the great west failed to ask the questions that it now blames dr harrington for not giving answers to and that includes the issue of having identified these as a medical set of questions that includes the ambiguity that was in the musculoskeletal questionnaire and it includes the issue i dress previously regarding the general question that catchall question in forty eight of the application of the misrepresentation turns as it not i'm trying to be sure i understand your position your position seems to be as i understood it that the word medical in that application means that he does not have to disclose anything to do with a chiropractor because a chiropractor is not medical have that right that's correct your honor yeah but that very form of question twelve specifically mentions chiropractor so it's my understanding your that the initial application which is that forty six and fifty four of the record it's described as a medical questionnaire and that the musculoskeletal questionnaire gives a prompt that specifically references considered part of the application process is that's correct you're ok yes and it's our position that because of how these questions were framed dr harrington provided accurate responses as i understood them at the time great west makes a big deal out of deposition testimony where my client indicated that a consultation could include a visit to a chiropractor great west in that context or not clarify whether that was dr harrington's understanding on the date of the deposition or if that was his understanding on the date he submitted the application moreover great west makes a big deal out of asserting that dr harrington agreed that the musculoskeletal questionnaire talked about chronic neck pain and that it talked about paris d z o s all they're asking is did it include that language in the prompt it doesn't ask whether dr harrington understood the parish were tied to this chronic neck condition or not clearly dr harrington understood that it was a reference to a condition that didn't exist quick question for you counsel so i asked you a question earlier about what the stand what exactly we're reviewing here whether it's summary judgment or you know a bench trial there was no bench trial it's a summary judgment motion let's say i would conclude you know what maybe a reasonable juror could buy the story your clients pitch in here it goes back to the trial court would there be and i know there's a whole question about whether there'd be a bench trial or a jury trial the different types of claims but there has been no actual testimony from your client yet under oath before a just record judge correct correct so you would be asking for that opportunity whether it be a bench trial or a jury trial that's perfectly understand that