can you hear me yes go ahead ok thank you yeah please the court i'm appearing today on behalf of helen intern sherman's exchange automobile club i'll be referring to my client today as the exchange that our ally had no duty to defend or indemnify claim against allegations of professional that comes that the exchange had made against a claim in a california state court proceeding and to understand how we got here  it may be helpful for me to briefly summarize the parties and the fan it's my client the exchange provides auto insurance to members of the aaa auto club when it pays an accident claim of an insured who was not it fa the exchange subrogated to the insurance rights against the at fault driver now rather than pursue those subrogation claims itself the exchange hired a claim to do that but the exchange and relationship fell apart badly and the exchange ended up filing a lawsuit against a claim in california state court that krell for his suit is sometimes referred to as the underlying action underlying suit or underlying lawsuit in the parties breeze at the time that california suit was filed a claim was insured by our ally against claims alleging professional knighthood it's now the underlying suit in california contains a host allegations against a claim and minutely some of the allegations in theories of recovery are not covered by the our life policy but it is clear that others are and that's why there is a duty to defend you provide competent professional subrogation services including those required by industry standards and by failing to investigate evaluate and settle up claims in a professional manner well the claims  well i would agree with you that the allegations are bare bones they are conclusory they are not accessible factual but it's important to understand that california is a notice pleading state it's not a fact pleadings in the standard under illinois law does not require the plaintiff in the underlying suit to affirmatively plead into a claim for coverage all that illinois law requires is that in the underlying complaint do not negate the possibility and so long as there is a claim that alleges that negligent performance of subrogation services and it's clear there is such a claim here it may not be  conclusory terms that's good enough to warrant coverage of the i believe that's right precisely because all a complaint has to do in illinois is raise the possibility of coverage invariably exist based upon the underlying complaint well i don't actually yeah i think you know if you look at cases in illinois that deal with conclusory or bare example there was no allegation as to when the injury took place and since injury had to take place during the policy period ensure ensure said there simply were not facts to bring the complaint within coverage the court said no that's not correct we understand that a plaintiff in the underlying action should be the sole arbiter of whether or not there's coverage all we look at is whether there is a possibility of coverage and whether the allegations specific barracks and that should be good enough for coverage here did you make that argumentum is not something which has been set forth them at the trial court or particularly in the maybe i missed that point but i don't recall i can't precisely recall whether it was argued below and or in the briefs here i believe it was  both i'm quite certain we've raised at one point or another in these proceedings the fact that california is a notice pleading jurisdiction it's an important distinction seems to me if that's the basis for your claim that what what in illinois that means we can't tell whether the complaint negates the possibility of coverage and i would point out here and it's not simply that the exchanges complaint against a claim alleged a claim was nother argument that our ally makes is that the court should disregard the allegations of professional negligence because that's just an attempt to manufacture coverage but the cases on which are a lot of allies don't really support that result the cases that our law is saying about the single site i'm sorry a single incident and an insurance  tempt to characterize that incident as accidental when it clearly was not based on the facts unlike our allies cases this isn't a case where the opponents are trying to characterize a stabbing arson or sexual assault  this case involves multiple incidents over a period of time some of which were negligent and some of which were intentional and there's nothing implausible about the notion that a claim was negligent in performing its services but why doesn't allow our ally to simply lump all of that conduct together with other conduct and it will it hasn't changed and i think it's significant here that a claim tried to get the negligence count dismissed in california on the basis that it added nothing to the complaint and illinois law is clear that even if only some of the theories of recovery alleged in a complaint are covered there's a duty to defend and you don't get to ignore those allegations based on they allegation the accusation that they're merely an attempt to manufacture coverage at bottom are a lie hasn't offered any evidence on that line instead i realize asking the court for an inference of wrongdoing on the part of the excuse me i'm not sure mr robinson i follow a bit west point just mary would you repeat that again sure so one of the arguments that our ally has made is that the insertion of the negligence count into the nd amended complaint in the underlying action should be disregard it doesn't come from an honest basis it's merely an attempt by the exchange to manufacture insurance she doesn't really believe that a claim acted negligently and my point here is that there's no proof of that it's just there some position is just an accusation and they're asking for an inference because that that those allegations were added a bigger point is that they're looking to avoid coverage on the basis that it was manufactured by exchange although they're insured a claim isn't even alleged isn't even accused by our ally to of him that he and he quote unquote manufacturing coverage and that's important for two reasons st illinois law is crystal clear that the duty to defend on the part of an insur extends even to groundless false or fraudulent claims i realize i explicitly incorporated that legal standard into its policy its policy explicitly promises to defend a claim against even groundless false or fraudulent claims i want to be clear here the exchange did not mean fancher coverage but even if one credits that argument that doesn't mean that a claim is denied a duty to defend such supposedly groundless false or fraudulent claims that's precisely a species of claims that our ally promised to protect the claim it's insured against and it it professional services not that the claims are bogus that just stepping right i think it seems to me that it's a different sort of argument based ray and the fact that what is the it was a stated i don't think so here divorced from any other facts that indicate that it was added for an improper purpose in remember the cases they're relying on are cases where insurance engaged in criminal  ensured stabbed the victim eighteen times he did guilty to a crime then cobbled together a complaint that that trying to make the argument that the stabbing was ne complaint the fact is that events in the underlying action over talk that's in the coverage action which now come to this later if there is time is precisely why the court even if it was correct and it wasn't that there is no duty i don't know which way the underlying action against claims going we don't know which hell additions will be credited improved and which will not we don't not the underlying action is currently more or less stayed because the pandemic as a result of which the trial court in california has stayed left i want to cover these imply ability exclusion we're not writing on a clean slate here the language that our ally chose to use in its assumed liability exclusion is very different it's our ally as an exclusion that only applies to life bilbies that are assumed by contract and their th circuit cases decided under illinois law that hold that the phrase assumed liability only refers to indemnity agreements or hold harmless agreements of the mike where the insured takes on the liability of a completely different part not that this extends to every type of contractual liability that  and there are eight different supreme courts that have rejected over broad interpretation that are a lie seeks to place on its assumed liability excluding here the leading insurance law commentators apple americans were discussing regarding the allegations in the underlying queen in the underlying complaint and whether there is a wrongful act of course the st question in any insurance coverage mission let's look at what the exchange relies upon to try to demonstrate that there is a claim for first exchange relies upon the fact that there is a queen for negligence and the underlying  containing what it claims are the specific allegations on which it relies to trigger that paragraph is paragraph fifty one dollars as we explained on page eleven of our brief where we quoted that illinois law because after all knowing just that illinois law applies here so but on the merits i think your response is st of all there is not a single case that the virtually all of those paragraphs deal with a simple allegations about the failure to provide accurate bunked we report which was the mechanism by which  policy period the st district held the group leading against ensured that did not specifically identify the period of the oh sure with respect to the insurance product and therefore whether there was a potential course involves whether the contract exclusion bars coverage so before the court gets to that issue the court st test to determine if that there is or want to lacked and b that there are damages but on the contract the arguments that are being there is a whole host as cited by the parties in their briefs there is a whole host of different language and calling contract exclusions but our view is that this or liability assumed by any insured under any contractor agreement so in our view to apply the arguments made by the exchange here would read the language applies to any contract or agreement out of the contract interrogation of basic principles of insurance outteridge law an insurance policy interpretation now the nd argument they d make regarding the contractor but there are no allegations about any type of damages other than the economic injury of three million one hundred and forty five thousand two hundred and twenty nine dollars and forty cents of the wrongfully without fees and it's should do or what the trial the court to do in any respect now i don't believe that the exchange is arguing that they are moving on to meet and was and i believe all parties agree that the policy is on very specifically that it is appropriate to resolve the issue of the duty to indemnify more importantly the factual basis for the exchanges argument simply does not exist the exchange fact that in his argument he calls looking at ins and which he focused putting those allegations into context putting those allegations  negligence just because there are other allegations made that are not professional mathematicians you don't get to read those out of the complaint completely in the guise of quote unquote reading them in  possible and indeed that's what this dispute is it's a dispute over not only the return it seems but also professional negligence the sentences that mr carter wants to read in contacts raise the possibility of coverage and even the case that he signed that he claims we did nothing to rebut which we didn't because it doesn't need to be the danner case actually language we've argued throughout these proceedings the duty to defend does not require that the complaint alleges use language affirmatively bringing the claims within the scope of the policy does not the question of coverage should not hinge on the drastic ship skills of the plaintiff in the underlying action but that's precisely the result that mr carter is arguing for now let me move to the damages argument the fact that the amount of damages plead it is the same as the amount of damages pleated another cause of action doesn't turn a cause of action for professional and i wouldn't into something else it just means that the  e well the fact is that the duty to defend law in illinois does not require such specificity it requires only that the complaint raised the possibility of coverage that's exactly what this complaint  you can read it in context you can read it out of context however you want there are sentences in this complaint that clearly and unambiguously allege professional that weakens and there is no court there is no decision from illinois that says that a properly clean wrong and it's really i think where he went wrong is he credited the notion that you get to characterize the complaint as a whole and why did you need to review the complaint is all that does not equate