we're going to extend that to thirty minutes aside so we begin with the appellant will have thirty minutes but from your thirty minutes or a portion whatever amount of time you will leave for rebu which i'm sure she will be reviewing and listening to the oral arguments they are transcribed they're available on the internet but she'll be listening to the audio portion and will participate in the opinion of the court of it said by than once so i'll try to focus this argument that pile of briefs and makes the case appear a little bit overwhelming but after you analyze those briefs as i'm sure you have already and will do again the case was not very complicated it is it is a breach of contract case it's simple insurance it's simple in that the other cases over and over again i don't think i have ever been more comfortable standing at this podium and telling the court that i think i position is the one that  should carry the day i think when you look at the policy language here and look what's at what's to be decided i think that remark is as close to all fours as you're going to see i know that's a pretty over now possibly medical sciences yes yes the knowledge of remark i would first of all the record in this case demonstrated that it hasn't there was a medical trial in sickness and it said bodily injury also occurs i'm diagnosis there is that is it and that law as been repeated over and over and over again by this court i did what i set out with that one of the reasons i'm so his last opinion on the subject he says and i i think i'm going to quote him with a longer than i'd like but i've got it but it's i mean he's more important to you than i am so i what's the law and that triggered the coverage there just as worse than talk about what happens in bodily injury cases and that's the part i just quoted to you and then he goes on to say where you can identify where you can identify the year that the crayons were sold that is where you could pair the injury with a policy the second that the second district opinions and i don't think they help the i think that they help the insurers either  in the in the first case an outboard marine the court unlike first of all the court knowledged braemar as the  to a policy that policy is on the hook all sums if you cannot allocate or pay are in that case then you and then you use a  question that's it's because the second thing we had to prove is whether we exhausted whether whether in the underlying case we exhausted all of our poli there was only one million dollars in insurance up to one hundred fifty eight the biggest period here and the when you count the entire period of going through two thousand and two that was forty one million dollars and to prove it and then we proceeded on the proof and i said as i said kemper had paid out by night by two thousand and four they had paid out forty three million dollars by the time the case with the trial in two thousand and six they had paid out fifty one million dollars and they've been paying out a whole lot of sense so i mean allocation really isn't that exhaustion really is going to be an issue if we get back to the trial court because there are all in time would be able to show attempt to show me where that include all the period of time from the last hearing to whenever you have hearing next year later this year is that right after trying it was exhausting yes i believe so and earlier there  he points out in their interest the question about exhaust exhaustion that he could seemly he cannot find a case to discuss the issue of exhaustion in terms of his best his cases where they broke down each broken down by policy position there is what it is today listen whatever it is we've paid more whether it be forty two million or fifty one million we paid in excess of all so all of our primary insurance is been exhausted yet because we said if not more in judgments in the value and one of the reasons first of all that didn't come up until the end of the case but the the one of the things wrong with that with that rationale and that's our primary error on the exhaustion issue is that as as a supreme court says and right mark very clearly it is impossible to prove all three triggers because some people never ending in sick this has never met effect not never is is often not manifest settling cases they would continue to to to resist the cases and and the parties agreed and we cited where they agreed the parties the insurers agreed that if that if that agreement w believe that henri man of the the circuit court should be required should be required to allow us to use the a c c finally another one of the issues on appeal would it matter in from the insurers then she ended up entering a judgment contrary using the same standard and a judgment contrary to her earlier finding that the  court i'm rebecca ross and i represent the c n a company's columbia casualty company continental casualty company and the continental insurance corporation today i'm going to be speaking on behalf of all of the insures in this action with respect to the issue of an cranes appeal that's exhaustion and allocation and then at the end i would like to turn to the cross appeal on trigger and then i will be speaking only on behalf of my own clients as your owners are well aware john crane brought this action in may of two thousand and four seeking insurance coverage for as best as injury claims fraud against judge stuart deacon there handled this case for more than six years she resolved more than twenty five motions for summary judgment she helped two trials one of which lasted more than eighteen days and that as a result of all of that hard work by judge near many of the issues have been resolved but three remain exhaustion allocation and trickery and i'd like to start with exhaustion if it makes sense to your honor with respect to exhaustion there are two issues that are pending in this appeal the first is whether the trial court properly found that john crane had to prove exhaustion based on the policies as originally issued not as changed through the a c c the agreement concerning coverage and the second is father john crane met that burden of proof of proving exhaustion after the trial i want to look at the first issue first although crane spends a lot of time talking about the agreement concerning coverage of really has nothing to do with that issue at all and why is that because in october of two thousand and six john crane bought out all of campers policies it entered into a full policy buyback at that point for campers primary policies and their access policies thus when the court was looking at the question of what john crane had to do it was governed by the illinois law that very clearly states that when an insured settles with its primary carrier the excess carriers receive a credit for the full limits of the policies and you can look at outboard marine corp and it very clearly states that exhaustion your honour's are well aware of horizontal exhaustion requires that before an insured can get to its excess coverage each and every policy that a high to a particular claim has to be exhausted the court looked at targeted tender and say you can not make some of that coverage unavailable by refusing to tender to it you still have to exhaust that coverage because horizontal exhaustion trumps targeted tend the same kind of situation occurs here judge can aired properly made the determination that john crane had proved exhaustion based on the policies as they were originally  of answers to that to the with respect to the kind of the global question the agreement concerning coverage what it did was it changed the terms of the primary policies and made it so that defense but exhaust  policies that also change the manner in which the other primary policies would be exhausted and made it so that instead of spreading it out over all of the triggered years they would only spread out over a very tiny amounts of that they could get rid of the policy as for defenses outside it's what the court ultimately determined and that was that the excess carriers who are not a party to that agreement are not bound by that and so what she looked at was the settlement  just a question your honor of how many dollars was spent it's a question of what policies were triggered by a particular claim and then you allocate the amount that was expended for that claim all of these are put john crane proposed to the court and what the court adopted over the defendant's objection was that all john crane had to prove was a quote reasonable and reliable allocation in other words john crane did not try to prove but substantive evidence in need of the dates of the policies that were triggered they never tried to prove an exposure they did they didn't try to prove a sickness state they had the state stipulated but right from that john crane did not put in any substantive evidence at all so when john was looking at what it made a bet effectively and what it decided was it would be a whole lot easier to just try and prove a reasonable and reliable allocation without having to prove all of the underlying facts they were coming in under rule seven zero three well unfortunately for them what happened was their reasonable and reliable allocation was neither reasonable nor reliable and that's what judge kineret found they did not give her another option they did not come in and say at the very least here are the things that we're proving give us in sawston based on that no they didn't do that what they did was they came in with what they stated was a reasonable and reliable allocation that was anything but and so what judge can err did was what any judge would do which is she looked at what they had presented to her it didn't meet the standard and she said i'm sorry but you have a proven exhaustion i think what's important about this in terms of what the judge did is the links that she went to to try to help them as they were going through the exhaustion trial and if you give me just a minute i'd like to give you a couple of examples for example she let them use the defendant's exhibits because they haven't bothered to designate any of their own exhibits for the exhaustion trial she allowed them to produce checks which had been requested in discovery but not ever given to the defendants on the first day of trial and on the in the middle of trial and allowed them to try to prove how much had been paid based on those checks she allow she started and stopped the trial so that their expert could go back and review the documents of that he could figure out what he wanted to testify about she allowed them to modify their two thirteen f disclosures in the middle of the trial she allowed them to do new allocations during the trial which then required new depositions she kept telling them what it was that they needed to do in order to prove their case and they have reported in time they basically said to her we don't think so we don't think we have to do that and so they didn't so what they ended up with was a trial in which mr jones who was their only expert and he started trial a trial that john crane the man did over and over again that they be allowed to go forward on he came in a trial without ever having reviewed the documents on which its opinion was based the court had to stop the trial having to go back out review the documents and then try and figure out what he wanted to testify about he relied on the opinions of a rebuttal expert that he'd never spoken to that he had no idea how she reached the conclusions that she reached based on documents that she had c for a completely different purpose he didn't even understand how she had called those documents the court found that mr jones had relied uncritically on every document given to him by cra counsel and that that was inappropriate some of those were not reliable documents the court found that that john prine presented no reliable and credible evidence on exhaustion she found that helpful zz influence was so pursed pervasive that mr jones didn't do a true independent expert review of the claim documents on which his opinions were based she found numerous and consisten ies in the application of the protocol and she found that he had deviated from his own protocol in reaching his conclusions so in a situation in which the only thing john crane is presenting went one step further she went back and she looked at every document she had not emitted to see if it would change her mind because she was obviously troubled by the fact that john mccain was going to end up with nothing and she found that her findings would be no different than the statement she made is really telling what is missing here is a credible opinion based upon an ascertainable and professional protocol in reviewing underlying claims documents that was clearly not against the weight of the manifest weight of the evidence and that finding clearly should be affirmed i do before i move on to  it's incorrect is that rain mark is a trigger cade's trigger is what policy can be called upon to pay for a particular claim it is not an exhaustion access coverage that every potentially a political policy has been exhausted that's an ant in other words if you have a claim that has for example a claim for one hundred fifty and you say ok i want to exhaust that policy and then i want to go up to the access policy no you can't do that because there are other potentially a political policies you have to go down and prove when the sickness happened and use that policy you have to get out approv the disease happen and use that policy because that potentially all of that potential coverage has to be horizontally exhausted raymart does not deal with horizontal exhaustion and it doesn't deal with exhaustion at all to suggest that you can change a trigger case into an exhaustion case is entirely inappropriate i'd like to if i could move on to the allocation question allocation is a question of how  is divided among time periods when the injury occurred and the court in this case fall of the long line of the illinois cases and properly adopted a pro rata by time allocation the court properly determined that the policies only cover bodily injury during the policy period that john crane says all weight all the policy say that they agree to pay all sums on behalf of the insurer but that's not true on the policies do not say that some of the policies the columbia policies as an example some of the excess policies as another don't even contain the words all sons but every policy every single policy at issue in this case provides that it only covers bodily injury during the policy period some say that in the occurrence definition and some in the bodily injury definition some of the policy period provisions with say this policy only applies to bodily injury that occurs during the policy period but the policies all cover only bodily injury that happens during the policy period so to the extent that the policy for all son it's all sums for bodily injury during the policy period now john apply this in every case or you have to apply this in every that specified only injury case there were three paragraphs in the remark case that dealt with allocation remark looked at was a single part of a policy and that policy in remark said that the insurer agreed to pay all sons of the insured was legally obligated to pay there was no qualifying language court noted that there was no qualifying language said ok that language means what that language  but in our case even the policies that have all sums language all of them have a provision that say subject to the limitations terms and conditions here and after mention in other that were not discussed in the allocation all somes ruling question of the opinion but were discussed earlier that indicated that the policies only covered bodily injury during the policy period but when the if you look at the section on the pro rata versus all sums allocation in the second paragraph they focus on the fact that zurich undertook to pay on behalf of gray mark all sums which raymart shall become legally obligated to pay  damages because a bodily injury caused by an occurrence so in other words the language that i'm talking they don't go through and look at all of the other provisions of the policy that relate to bodily injury during the policy period installations this court has held that an insurer must afford remark coverage of a claim if the claimant suffers finally injury or sickness or disease during a policy perri right and that's a little sugar portion of it but the question  ended up doing was they looked at the forty eight installations which applied an exposure trigger and they had said to this court and also to the supreme court that the court ought to apply the forty eight insulations ruling both the trigger and by time allocation portion of it when the court rejected the forty eight installations trigger then it also rejected the forty eight installations pro rata allocation but there was  nothing in remark that says in any manner that that is the only way that you can allocate loss and in fact if you look at what has happened since re mark illinois courts have answered kind of the questions that that nothing in remark precludes program and that it is appropriate one and an alcohol loss implicates excessive policy period but it's not just missouri pacific i mean the the issue of whether or not you can utilize program allocation has come up in that one marine and environmental case aaa disposal which is another environmental case illinois central railroad which an employment discrimination case and the benny case which this court has been talking about this morning which was an advertising injury case and every one of those circumstances the courts looked at it and said if you can't program that it is much more appropriate given the policy language that we're talking about there's absolutely no basis to ignore the language in the policy that indicates that the bodily injury has to occur during the policy period there's just i mean there's that this court has said over and over again that you cannot just look at one part or two words within a policy that you have to look at the entire policy and apply all of it and if you apply all of the terms of these policies it's very clear that they only applied to the bodily injury that happens during the policy period and to to implicate in all songs willing in that circumstance would be entirely appropriate i would also note for your honor that there's a nother wrinkle in this case that we should probably make sure the court is aware of the columbia casualty company umbrella policies only allow exhaustion of the underlying pushing injury that occurred five years before into the colombia policies it would not exhaust the policies underlying the colombia policies when those policies have gone out of their way to make it clear they're only talking about bo injury during the policy period they only come in a after the underlying policies are exhausted with bodily injury during the policy period were done and i would submit to your honor that the court in looking at that and looking at all of the language and only the you look at the court's ruling both on summary judgment and as the result of the checker trial she repeatedly stated that she thought that she was that she was required to follow circuses remark and they had found that exposure equals bodily injury it's true that's what the court found there i will note for you that they found it because no one contested it all of the parties in that particular case had an interest in finding that bodily injury occurred at exposure but remark was an injury in fact hates it found actual bodily injury that found that proving that bodily injury might or might not happen is insufficient to meet the burden and what the c n a companies did in the trial or was to demonstrate that the evidence over the last thirty years has changed it's not the evidence that the surfaces remark or it was looking at the if you look at circuses remark they didn't have any idea how mesothelioma as an example occurred they didn't understand that it was a function of mutations with respect to six to ten genes that you have to have mutations to all of them in order to get your first cancer cell so that the medical all in the employer who an insurance write in a specialist producer or manufacturing volume in an insurer defending against suits involving a specialist and that's it's unfair it's a coverage issue at this point so i'm not saying you should have reached out why would you be rich are for  ultimately found because there really wasn't any dispute there really wasn't any dispute about how the bodily injury occurs or the fact that you really couldn't tell when that bodily injury or curs and the court based on the admissions of cranes on experts made a number of finding it's one of them was that you don't know when the process is leading to us bestest related disease occur that's absolutely what the experts said the court found that not everyone who is exposed to asbestos including not everyone who is exposed to high concentrations of us best as in the workplace over a prolonged period of time develops as best as related diseases so the court specifically said look exposure is not enough the court then said working backwards from a deadly tumor i can that's all fairly one cannot determine when the various mutations first arose in the cell lines creating the first cancer relevant mutation she also found that no one can determine whether any given mutation occurred by chance biased best us or by another cause and then she looked at what john crane had asked her to do to expand the definition of bodily injury to encompass the genetic damage and mutations to the cells in the surrounding tissue and she said  medical science no one outside of litigation the first to processes such as mutations and macrophage reactions as injury now why did she say that because those two things macrophages reactions and mutations happen to every single one of us every single minute of every single day which in its logical conclusion would mean that no at us ships and yes you do because what us ships insects is that if you cannot prove you know that probably or you know what that injury occurs but you cannot prove precisely when that happens then you utilize an equitable continuous you utilize it from the data first exposure to the data manifestation or death and and at that point in time then you utilize a program to buy time allocation to spread the loss over the entire period of  what he is talking about is that when you settle a case us the insured don't have the obligation to come back and prove your own liability that's the first part of what you said it says but the second part is but you have to prove that it falls within the terms and conditions of one of the policies in other words you have to prove that there was injury during a policy period and so then he is addressing the fact that when you get to a point where you cannot prove that it's impossible that i think it's true here then you can utilize a fiction act and that one about continuous trigger from the data first exposure to the date of diagnosis of death and you spread out the last during that entire period of time and yes you you require an insurer who had doesn't have absolute proof of injury during a particular policy period to pay yes that's correct but you also spread it equitably in a way that allows the insured attain insurance coverage in a situation in which they would otherwise not be able to do so your honor the ensures ask that the court affirmed the trial court on the issues of exhaustion and allocation the c n a insurance companies that the court reversed the trial court on the declaratory judgment relating to trigger and apply an equitable continuous trigger to future claims and that there be no and that the case be reminded solely for the purpose of allowing the c n a insurance companies to demonstrate an injury did not occur precisely the kind of issue that been addressed at the end of that case thank you your honor if you have no other questions you keep in mind that that just discordant starts his opinion by make explaining the difference between vitally injury cases and property damage case and he says they make the argument the insurers make the argument here well what he really means is they only pay the damages and sometimes they change the language from the end in their briefs from by only injury during the policy period the damage is suffered or end of the policy period oh if if the bottle the injury occurs and can be matched up with a policy they play pay all sums and i'll give i'll give you a simple example suppose allstate has an insurance policy that covers a calendar year and it runs out on december thirty one and the holder of the policy has a horrible accident and new years eve these insurance companies want to tell you that allstate pays for the bill to drive with it to bring this is a real problem many cases we have been paying many companies can't pay but in the all in the in the rain mark what mark teaches is just like that auto case if you can match  why should we see the let me put it this way the heart of the problem looking back is that the trial court was analyzing   identify the year that he was exposed and that they went through that day after day of that trial and then in the end she said well like the insurance companies have pointed out you didn't you didn't prove all these dates you didn't prove this you didn't prove that they didn't have to prove she she held them to the wrong standard and an incredibly what they say how they say how