or next case on the call the doctors agenda number fifteen case number one one three eight seven three skokie castings and i believe versus illinois insurance guarantee fund column counsel may please the court good morning your honors my name is steven whitner and i'm counsel for appellant illinois insurance guarantee fund this case centers on the meaning of three words workers compensation claims these three words are found in the illinois insurance guarantee fund act and they are the words that the legislature used to identify one specific category of claims to be paid by the fund without limit upon the insolvency of an insurer so if the claim addition here falls within the definition of workers compensation claims then the fund is required to pay that claim in full without limit but if the claim at issue falls outside the definition of workers compensation claims then the fund is only liable up to the three hundred thousand dollars cap now the difference between what is and is not a worker's compensation claim is best demonstrated by comparing two separate and distinct claims first let's address the claim that is not before the court here today that is the claim that was brought by ms so lowkey in one thousand nine hundred five miss loci was injured while on the job at wells manufacturing recover for her injuries she pursued a claim before the illinois workers compensation commission at that point it was referred to as the industrial commission and the commission determined that missile loki's claim was compensable and  that point but miss loki's claim this materially different than the one that is currently before the court here today the one that is before the court today is wells claim for reimbursement or indemnification for the amounts that it has paid to miss loci for her claim therefore the claim we're talking about here today is the one that was brought by wells under the access insurance policies at issue because the legislature did not define the term workers compensation claims we need to look to their plain and ordinary meaning and there are four reasons why the plane an ordinary meeting of workers compensation claims does not apply to wells plain first and this first point is key wells does not have a worker's compensation claim because wells claim is not for worker it does it comes directly from the worker's compensation act but wells plain in contrast generates from a contract specifically the access policies we're talking about here were not destroyed obviously by the new the lower courts relied heavily on the new mexico case and that case is factually dissimilar to this case in material way at issue in the new mexico case was whether there was a covered claim at all the fight was w claim reinsurance or was it direct insurance and the court had to determine which of the two because reinsurance is not covered under guarantee fund statutes generally that's not an issue here today the owner insurance guarantee fun has determined already that this claim is compensable the question is whether it's a worker's compensation claim or not that issue is not before the court and the new mexico case to respectfully that case provides no guidance for this court here today mr widmer the before the the fund reached that three hundred thousand dollars cap there were payments from the fund correct correct so did they go to the did they go to the  entity the employer or did they go directly to the injured party the record was never developed on that point your honor but the money alternately made its way to miss the loci we know that because her claim has been paid in fall and there's no question about that and that's something that is important because we think that the best courts below are concerned isn't smooth a little so the answer is based on the record you're not able to answer based on the record i'm not able to answer that but it is our understanding that the money did get paid to miss loci ultimately one way or the other thank you we do think there was a concern at both courts below as to whether missile loci ultimately would get paid based on different factual scenarios that might develop in the future and we can put that issue to bed right here missile loki's claim will be paid in full no matter what happens and here's why i can tell you that first wells in the event that the insurer becomes insolvent it is fair it is well as manufacturing that signed up as a self insure to be initially responsible for the pain and to be sure i excess insurance from home but they did so knowing that would home go into insolvency the guarantee fund would step in and it would only be having the protection that the guarantee fund would provide you know in the scenario or it's the owner insurance guarantee fund act provides that there is a three hundred thousand dollars cap on all claims general liability claims for example or all liability claims  compensation claims are not kept those would go up to the mo but the point that we wanted to make sure was clear is that to the extent wells manufacturing were to file for bankruptcy or otherwise not be able to pay claim then the legislature has created another entity the self insures advisory board which would step in and payments a loki for her full claim to the end of time that entity was created by the legislature in situations like that but yes if you're self insure you have to pay into this fund the self insures advisory board so that upon the insolvency of the self insure there has to be a fund there to pay that money and the legislature decided that fund would be this off insurers advisory pan right and then wells all no longer in the picture that's why you came into being in the first place than wells resume perience the local he's competent director that's correct does that they acted in of itself if there is a primary insurance then the fund would be responsible for that claim up to the moment access insurance it would not and this is an important question that you ask your honor because this is i think the question that confused the courts below the courts below said what is the difference between primary and access insurance i don't see a difference and as we explained in our breeze there is a fundamental difference between primary and access insurance and that is a primary insurance policy pays worker's compensation benefits in illinois the law is clear if you are a primary insurer you sign up to pay directly to the employee the benefits not so with access insurers and this is the key access insurance policies do not and never have paid workers compensation benefits they reimburse employers for payments they have made but if m come to home and said i want some money or if she had come to the illinois insurance fund and says i want some money began to find home would have no liability under the law no question there's no dispute over that and that we would respectfully submit is of material difference between primary and access insurance but the courts below mis understood would be with this employer spoke your will wells if it had hit no excess national union case which we address in our papers it is an unpublished decision but it is directly on point the question there is precisely the one before this court today is an access policy claim a worker's compensation claim and the court said no it is not and here's why the court explained its reasoning and excess policy does not pay workers compensation benefits and excess policy does not pay workers compensation claims and excess policy is not a worker's compensation policy those were the findings that the national union court made and based on that concluded access policy claims are simply not workers compensation claims the other court that address this issue is the night of court and relying on a circular issued by the insurance department for the state of new york the united court made clear that access policies are not workers compensation insurance because such policies do not pay statutory workers compensation benefits to employees now the holding we are asking for today is consistent with the public policy of illinois as articulated by decisions that we cite in our brief and illinois courts have made clear that the legislature never intended for the fund to pay all policyholder claims instead the legislature intended it to the fund to be a source of limited payment and a source of last resort why well as an early course of explaining the costs of my client the funds are paid for by assessments of member insurers and those costs are then passed on to the policyholders because the costs of the fund alternately borne by the insurance consuming public the people of the state of illinois ultimately pay for it the funds payment limitations are there to make sure that the cost of insurance in the state of illinois is maintained at an inaccessible level here there is another source available and it is wells it is the entity that signed up in the first instance to pay workers compensation benefits should they arise so there's a choice here we can either give the word workers compensation claims their natural meaning comport with this course directive that the fund be a limited source of limited protection that's one option or take the appellate court's approach which expanded the definition of workers compensation cla well beyond its natural moorings and we submit also violates this court's public policy that the fine should be a source of last resort seemed to be concerned that if the legislature intended to exclude excess claims then why didn't identify it as one of the claims right in the act so workers compensation claims does not mean well respectfully that argument just doesn't work because the legislature did not list every type of claim that is subject to the cap it merely identified the one type of plane that is not and we talked about that earlier it is not reasonable to expect that the legislature will identify every type of claim provide a laundry list of every claim that gets kept for example the legislature could have said workers compensation clip claims on caps and we are not going to cap general liability claims we are not going to cap off of liability claims we are not going to cap excess liability claims the court shows that they have a legislature shore's a different direction which is merely to say we'll tell you the one type of plane that is that and that is we're uncapped its workers compensation claims so respectfully the appellate court's question about statutory construction which it focused on in its opinion doesn't make much sense conclusion wells claim does not meet the common definition of a worker's compensation claim it is not a claim for statutory benefits it is not a claim that is brought of the worker's compensation commission it is not a claim that it arises from the worker's compensation act it is something distinctly different is the claim for indemnification under an indemnification contract and that's all second the courts that have address this issue the national union court in the united court has specifically found that access policies do not provide workers compensation insurance third the fines position squares with a well established public policy that has been set by this court and the appellate courts below that the fine needs to be a source of last resort and for all these reasons we respectfully request that this court reverse court decision below and find that the claim at issue here today does not fall within the definition of workers compensation claims mr winter you may have already addressed this forgive me if i'm asking to go to the same territorial make sure i understand your argument under the definition section of the statute that has a description of what a quote covered claim is that and five thirty four point three eight if i'm looking at the right section does that sound right and does tell me what your argument is about why this claim that you say is an indemnification claim and not a worker's comp claim i understand that but tell me how it's not a quote covered claim under this statute that your position it is not my position is my position think exact opposite  this claim that's before the court today is most certainly a covered claim which is why my client has paid out three hundred thousand dollars toward it so it's covered up but only if the three of you access policy claims are covered claims in the state of illinois no dispute about it the question is is an excess policy claim also fall within the ambit of workers compensation claims so that the guarantee funds obligation goes up to the most ok i'm with you so let me ask you this in the section under the five three seven point two obligation the fund where the three hundred thousand dollars is when it uses that the exception clause except that this on the station shall not apply to the work compensation claims tell us what scenario that is ok so innocent contras sure why it's so sure so in this situation let's assume that wells manufacturing had decided not to self insure and had instead gone to a primary insure picked liberty mutual and then went to liberty mutual said i want primary insurance and then the liberty mutual goes insolvent and then they turn to the fund and say ok now it's your turn to pay and the guarantee fund steps in and says ok i will now pay that plane up to the moon liberty mutual was required before it went in solvent under that hypothetical to pay it to the moon now the guarantee funds required to pay to the moon because it's a worker's compensation  benefits and juxtapose that against the claim we're talking about here today which is merely even done to fix claim under a contract to guarantee fund has long pay excess policy claims of three hundred thousand up to three hundred thousand dollar covered claim new mexico they had a fight of it out there and this is a cover claim there is not that's what a justice thomas was speaking to not the issue here it's a covered claim the question is is it also a worker's compensation thank you thank you your hono skokie castings as successor to wells manufacturing company the issue in this case comes down to the basic rules of statutory interpretation as they relate to section five thirty seven point two of the guarantee fund act these were terms they were discussing during mr whitman's presentation section five thirty seven point two sets the limit on what the guarantee fund is obligated to pay when they step in the shoes of an insolvent insure on a given policy claim section states that the funds liability is limited to three hundred thousand dollars except that this limitation this cap shall not apply to any workers compensation claims that's what's at issue here how is that to be interpreted according to illinois law it's the interpreted by the plain in ordinary meaning of those terms it should be interpreted within the context of the entire guaranty fund act as well begin he funds position seeks to introduce all other elements of interpretation other than what those plain ordinary terms think just by their direct meaning that's not a proper statutory interpretation in illinois clear and unambiguous and its terms the distinctions as to the type of policy involved here it's an excess of policy it calls for indemnification rather than direct payment might be persuasive arguments to make the legislation to change section five thirty seven point two but one must assume either they were raised when the sit stage was originally written or it's something now that guarantee fund see that needs to clarify but the statute is written is very clear which point the home workers compensation excess policy activated home then paid the workers compensation benefits pursuant to the workers compensation commission or they would still be paying those benefits the mechanism now deemed to be that insured guarantee fund in this case is home insurance for all intents and purposes and they are continuing to pay pursuant to the worker's compensation policy on the worker's compensation claim  relevant if wells was insolvent it self insured advisory board has nothing to do with this case because it is only activated when a self insured employer becomes insolvent we don't have that here so  the hypothetical it's a scenario that one might have to consider maybe the legislature should consider if they see any sort of gaffe or conundrum between those two eventualities but as things stand the self insured advisory board would have nothing to do with this approved as a self insured employee before the commission because self insured employer must present sufficient evidence of assets collateral bond security or excess insurance policies in order to qualify so if they chose not to obtain access insurance they may have had other assets or a means of doing that where the commission would have approved them as a self insured employer then if those failed then they were there in the lurch because they don't have insurance policy so i correct i mean that's that's what happened in this case until we brought that section and again the purpose well the original purpose in getting this insurance in addition to qualifying the self insured employer was to protect itself they paid premiums for the protection and that this home insurance policy would have provided and did provide to the point home to the point that home became insolvent now deaf blind the guarantee fine without objection and everyone agrees this is a covered claim comes in and pays so at depth points when they get to three hundred thousand dollars what are they paying out and as i think this part in question mr widmer that i understand the issue they're paying on a worker's compensation claim and the statute specifically exempts the three hundred thousand dollar cap from any worker's compensation claim as i understand this council we have a a deck action right for the court to determine whether or not the guaranty fund should have kept it at three hundred and i think both of you would agree as you've been arguing that the issue becomes whether it's a compliment in thinking about the deck and i mean we have personal interactions all over the state in which an insurance company that insures the defendant you know might feel that and rightly so that they have a greater duty to defend than they do to pay so they go on with the trial but there's a deck action proceeding indicating whether or not the if there is an award for the plaintiff whe be reimbursed or not is that somewhat of an analogous situation here you would say that that deck action is a personal injury action it's a contract action to determine whether or not payment is due isn't that what whether or not this is really workers compensation that would extend it out as the three hundred thousand well answer to the first product question you're addressing it be the decade in the context of  a person's reaction as to which insurer covers or whatever that is a coverage typically is a coverage issue one insurance company says we don't and sherm for this you have to go to this company and then they fight over policy terms or what have you as to who covering that insured this case does not present a coverage issue because all mature is clearly covered wells for this law someone homes became insolvent the guarantee fun covered homes at least the covered claim up through up to their limit or if you're prevail you know when you file that action you're not only going to see payments from that point forward you're going to pay you're going to want reimbursement for all the payments that wells made after the three hundred thousand stop right correct and th it's actually the order that was entered in by the supreme i'm sorry by the circuit court that was part of our summary judgment action declaring that the fun continued its obligation and therefore they would all reimbursement rate also no question would brought us the would brought everybody to the right the actual deck action and who's going to pay is that necessarily a composition well i don't think the funds should benefit from changing the character of the action  in this case elected not to have a so called primary worker's comp insurance coverage opting instead for excess coverage is there would there be the option to employer to obtain a primary insurance contract with a high deductible i believe so for workers compensation i think by statute the insurance coverage you get cannot be mechanics issue of type of payments or the designation of policy and if it mattered to the legislature they would have put that into the guaranty fund that provisions and section five thirty seven point two and in fact we know this can be done because the new jersey case the new in the analysis is a main difference whether wells self insured or primary only in that it allows your fun at this point to make the argument that because they were not did not have direct case and the fun his admitted as they did today and throughout had there been a direct insurance policy there would be liable to the moon to use their terms and they're drawing a distinction that doesn't exist in the that because it's a high deductible or us as i r of two hundred thousand and then this excess policy kicks in that what you know now the cap applies is it's not workers compensation benefits and that's the only only distinction i think practically speaking that exists between wells getting a direct policy or getting an access policy and having a high retention initiated all this home insurance paid workers compensation benefits pursuant to its policy and the work comp award to look at it now and say that home only reimburse there was an excess policy or the fund is only reimbursing again it is a is a backward analysis of it the point is this is a worker's compensation claim a worker's compensation insurance carrier went out of business the funds steps in the shoes the carrier and the liability should be limitless because that's what their own statute says the section five thirty some point to catch the fines liability of three hundred thousand dollars except that this shall not apply to any workers compensation claims those terms could not be clearer the arguments that the fun raises would be ok but that might not always be the case that the employee will get full benefit unquestionably your honor there is a policy in this state that workers compensation claims should be paid up to the that we acknowledge that before the trial court and weak knowledge of the appellate court so the question isn't whether they should be covered up to the moon the question is who should pay for it and in illinois the illinois legislature has already thought that through and they said to the extent somebody decides to self insure they are the first one on the hook if they want to turn to access insurance they can try to access insurance but if the self insured or any access insurer are unable to pay you have to look to the s i a b self insurance the virus revise reboard and they will pay ms so lowkey until her last bill is sent out so you're right your honor worker's comp is important in illinois that the worker gets paid in full and there is no concern here if you rule in favor of the fund there should be zero concern but this court that mr o'keefe will receive all of her benefits until the last day for the reasons i just said mr shanahan said something that i think is very important and i want to just clarify it's a very important distinction section five thirty seven point two does not say that the fund steps into the shoes of home it says the guarantee front steps into the jews of home to the extent of the covered claims that's in the very first sentence of five thirty seven point two two the extent of the covered claims why does that matter for the reasons we've talked about public policy covered claims are three hundred thousand dollars for auto claims g a o claims access claims you have to look to workers compensation claims to go beyond that this all goes back to the public policy we were talking about the legislature doesn't want the guarantee fund to step into the shoes of home and pay everything because the policyholders and ultimately the people of illinois have to pay for that and legislature said we don't want that to happen here that's an important distinction now there is a question  question i want to come back to it could well manufacturing have gone get a primary insurer and received a high deductible two hundred fifty thousand deductible five hundred thousand dollars deductible those happen every day throughout the state the answer your question is absolutely yes wells could have done that and your honor to answer your question is there a concern here that an insurer insured like was manufacturing may not choose excess policies and they may choose instead something else like a primary policy maybe if wells had gone to liberty mutual it would know that whether it's liberty mutual or for whatever reason became insolvent began to fund would pay up to the moon wells would never have to pay a penny but that would have cost them more you know although it's not discussed in the record access policies by definition are not as expensive as primary policies for that reason wells had a chance if it wanted to get that protection just go buy a primary policy insure here home would have been required to pay but but home would have been required perhaps to pay an auto liability claim up to the moment whatever they had agreed to and what the right the money when the guarantee fund comes in that legislature said ok there's a new set of rules we are capping these claims we are not going to clap cap that claim that's a set of rules but to address your concern directly justice burke there's question that had roles chose to pay a little bit more and had obtained primary insurance we wouldn't be here today because the guarantee fund would have paid that all the way up to the move they chose instead to access and by doing so they  the end result seems to be the same well the end result isn't really the same the question is i mean obviously access insurers primary insurers they all pay in to the guarantee fund in connection or in relationship to the premium that they're taking in right so the both companies pay into the phone but the primary pays more again that's not in the record but yes that and justice thomas asked some questions i want to address that really get to if you look at an excess policy and say anything it covers below whether it's an excess policy for auto or general liability or workers compensation once you purchase that access coverage it is the same thing as everything that's below that's wells's argument once you purchase an excess worker's compensation for workers compensation it becomes it morphs immediately it becomes workers compensation if you buy an excess auto pilot see it more said immediately becomes an auto policy are regulations about how workers compensation insurance has to be treated in the state the concerns and we said in our brief you can't morph those because they're different they're different which is why they wells hasn't been able to identify one case in the history of jurisprudence which says an excess policy is a worker's compensation policy only courts have addressed it and the insurance department that addressed it has said the very opposite in closing we ask this court follow the common definition of workers compensation claim which is the claim for workers compensation benefits and determined based on that that they claim it is you here brought by wells is not a worker's compensation claim and therefore