three forty five or citing other cases and focusing on the fact that this was a insurance application that then had a medical exam that followed exactly the case here that in that regard the court concluded part b because there's an actual physician exam and it also has all of the different things of hazardous activity and all those other statements that one would make about one's person to gain insurance because the companies are setting risk that question it out december twenty sixth two thousand that's the page all that language the point you make your name if it's ninety four that is not bold if you can see some years it's not or anywhere in the language of the policy not even a word and let us let's focus on it because it really is the crux of the case and it's a it's a fascinating question and if i could just as a predicate to it normally in insurance we take an application and we come back sometime after underwriting and we deliver the policy now there could be temporary insurance of premiums paid we don't have a case of let's forget that one of those are all other cases here there's no money paid so the only time we're going to have a deal is when i come back to company could have asked one question how are you today have you seen any doctors they could have asked the question it's called the good health of the insured on data delivery that's how we call it an insurance policy in the days before all of those things are you have you done these google diving have you taken up skydiving those kinds of things but mostly we focus on health questions they could have asked would you please reaffirm to us at the time a sign that your health this is only that's it if at the time of the delivery and payment each person proposed for insurance and a and b is a living is living and has not consult brought out or highlighted that is not within a reasonable expectation of coverage when we buy insurance as a matter of i think reason a law that one sentence shifts the burden to you the insured to remember from the time you asked and the person have to misstate that as a basis for the company to get out of its obligation the question here is does this provide enough notice when it's sure t have flipped the number one the policy and we have flipped number two the burden onto the proposed insured to reaffirm voluntarily voluntarily difficulty to walk away from the deal here insurance recalled we are in the area of insurance we're not in a commercial transaction our supreme court and our decisions and in our law have said that these are very protected area of law because we have to protect those that can write policies and have a huge staff of lawyers and church folks can craft policies in certain ways we have to protect our public from those not part of this case and this whole case is whether there was a change in or a medical condition which was not the insurer that the insurance company agreed provide treatises that have suggested majority jurisdiction where there's any affirmative duty on the proposed insured to do anything other than to be truthful when asked if she was that and in fact let me cough and back pain soft back pain i just got over a cold i had a cough and soft back pain for about thrift is along with a heck of a lot of other symptoms that's not enough she goes to see a doctor he finds a soft tissue no dally on the right lung not make it to her she takes the stand the x ray to the pulmonary person and he gives her differential diagnosis literally days before three days before the policy delivery who's obviously not medically trained to the knowledge that is greater than the physician so if a doctor learned in medicine could not diagnose you on day acts with a condition the law will not supersede its knowledge of that treating physician that doctor ordered tional testing in the test results come back until after the policy was delivered right yes sir and the point of his diagnosis was yes one thing was cancer one thing was scarring that's where we get back to my point it's a window of time we're not going to throw the baby out with the bathwater here we're not going to open the floodgates to litigation against the insurance companies we're not going to upset any apple cart of how policies are taken to the market deliberate or otherwise dealt with we always have to look so carefully at this one window of time because of vents like this in the good lord with the population we have out here it happens and all they brief the agent's declaration said didn't say that he asked how you do one and i should have enough of a formal document but he didn't he was over the policy to where there was no exchange of information that was merely the transfer question was not followed through here if the person was to say i've just been to the doctor and he gave me actually some concerning news about my little shadow on my lung that the agent is trying to say you know what i'm sorry annuity product here they chose to use different language if you saw my grief there was also a sale to her four children at the same time life insurance and i thought this was an i specialize it's very i thought this was an odd clause right above the law we just read on that page two of talks about temporary insurance if you had paid a part of premium earlier you could have it but it would limit the amount so for the twenty seven  it's a large large application a lot of pages from what nineteen or something right i understand that you are now each goes to different questions in different areas in regard to her health regarding her finances and various other things you know regarding her activities but this particular one is clearly labeled agreements and singers agreements this is what she agreed to these twelve provisions on this one page it through the agent when the policy is delivered or through a separate who are writing prior to delivery basically ask the applicant are you in the same condition you were question and in fact it's not fair to shift that burden and say i switched my duty but you never asked me so i don't have to tell you i can just conceal the stuff even though it's material to your ri maybe we should just you know take the money out of their salary to pay for the coverage instead of the company paying for it and then you come in and save maybe you know two weeks later and said i'm  your employment offer but the company never bothered to tell you that that was the gene now we're considering maybe taking that out of your salary you know premiums out of your salary would that be fair as for the company not to tell you that is a similar situation time when her representations must refer to so anyway we're asking for a medical history not a subjective belief regarding her health condition it really doesn't matter under the condition and whether or not jane fonda believes that her health condition is changed merely that there was a finding of an abnormality in her over an you know something a mass that showed up on some scanner x ray and i don't have cost no do you know based upon this we can't insure you humming that face she should be able to say you see what my problem is this that if if there is nothing that says in the in the contract or the application contract that she has a continuing duty to explain anything anything that has changed with regard to or health if that's in the application agreement that's fine court at the point at what point at the point that the contractors except one is delivering payments and certainly not all she needed to know was that she consulted with the physician and then and there just as she did not need to know and like and like to get help for this and she did not need to know the condition of her health that asked and i'll just read the answer about what do you mean by differential diagnosis give an answer on line twenty i'm sorry on page twenty one for answer because with limited information and limited contact and examination of patient you know just the first time we can formulate a list of different conditions but we're not too sure so we have to push it further we have to get more testing just been trying to diagnosis you know on just one more  sets in that same context because like i mentioned earlier i cannot come up with a firm diagnosis just based on the layman examination and limited information from i need more information or testing that was the state of his knowledge three days before the policy was delivered we cannot visit on her any knowledge beyond that he didn't know she didn't know the question comes down and counsel wants to  range he had a bad heart he had a lot of things wrong with him but he did not appreciate the significance of those things on an application right application question answered one two three a physician the court said in that context one which is important to our discussion here it convene material if the company means it by asking the question here justices there was no question the time she require any knowledge of severity or conclusion or it just so if you visit a doctor it's  talking dr whether the policy ever takes effect or not yes and if you take effect because it was delivered and payment was received and held and she looked on for another year before the claim was made so call there was an effect of that on they want to try to come back and that in a way that offends all california law there's no california case that says they can do this and specifically there is california cases that say you can only rescind based on a meet curial misrepresentation contract they cannot get away with this window of time by shifting that burden to the insured to remember and to volunteer there's no pays no statute and there's no case law that says this i know the case for california there is no case law and there's no statute that says that the insured must voluntarily do it there is no statute that says that any insurance law we've been through all the case of or this is a this is a provision that specifically