it's again please be seated where the only case law in indiana consists of federal district a federal district erie prediction this question find that that conclusion was an error because illinois state courts can and do have the discretion to look to federal district if you will it creates a precondition to the conflicts analysis that doesn't exist anywhere else and in the country and no other state federal or or state trial court has this precondition and that is that there be binding precedent before you can actually consider whether or not there's a conflict that's an unspoken precondition in the exit opinion there's no basis for that precondition there's no justification announced in the x state opinion for that much less advanced by bridge you in this appeal for the retention of the of such a rule what it does is it constrains illinois state trial court to create a distinction and it invites forum shopping because you have a you have a you do have a distinct conflict within the district between x data and a sears roebuck opinion sears roebuck states what every other state the union states which is that state courts federal courts have and can look to all available data which can include an eerie prediction for purposes of ascertaining what that state's other state's  data for reasons that are not at all clear states that in the conflict situation the court need not even get to whether or not there's a conflict if the only other precedent is persuasive authority what what the law might be in india because there wasn't any that's correct and she felt compelled to follow that she did and she felt compelled as well to try and reconcile the conflict the clear conflict between the sears roebuck opinion state opinion and what she did was the only reasonable thing available to her which is to say that sears roebuck applies everything everywhere else except in a conflict situation that's the only rule of its kind in the country and it it will  because what we have here is we have a situation where state farm issued this policy in indiana received a tender and indiana a evaluated its obligations under indiana law and then filed a declar court to confirm its coverage position because indiana has a necessary part or rule just like illinois bridgeview the claimant was named as a necessary party defendant in that case but it's consistent with what x data will invite ridgeview challenge personal jurisdiction prevented the indiana state court from actually addressing the question that has not yet been dressed by indiana state courts and then they file their competing action in illinois state farm is unable to establish that it that the court will be able to constitutionally assert personal jurisdiction over bridgeview in indiana so it must withdraw withdraw or with dismiss its complaint and then it must refile or file a counterclaim in illinois state court where then and x data will prevent future courts from from getting there and it's again the only rule of its kind and what it all the bridge you tries to advance the justification that that as opposed to encouraging form shopping what this does is provide certainty in th it disrupts establish your spirit and it creates an artificial distinction between what a judge does when ascertaining and applying law as opposed to ascertaining what the law is for purposes of a complex analysis with again no reason for that distinction and then it creates a default in the natural default illinois la well my prediction would be that they would that indiana state courts would follow the american state's analysis which basically what you have is two camps you have the sixty crecy versus occlusion camps and either they are the same for purposes of coverage or there's a differen what noise yes and a prediction of illinois law that's correct however we have no indication that and the question of whether or not there is a conflict doesn't turn on the correction or the correctness of the prediction but whether or not that prediction can create a conflict phillips petroleum vs shuts teaches us that it can and the the part that was cited in the bridgeview brief is to the dissent justice stephen says dissent to the majority opinion which said that kansas supreme court cannot apply kansas law to one hundred percent of the claims in that class action even just because or excuse me because texas law as predicted by a federal district court conflicted with how kansas law would come out on the issue of royalties do under the oil gas leases same thing with oklahoma the court found that there was a conflict in what the court said specifically in its opinion it rejected the dissenting opinions statement that those that w conflict because it said that the supreme court didn't did not address did not analyze those opinion sufficiently to be able to arrive at that conclusion so what shots teaches is that for purposes of determining whether conflicts can exist that conflict can be created by persuasive predictive authority such as an eerie guess like we have in indiana but without a more thorough review of that of those cases and the cases that may be indiana's state courts tendency to adopt and approve of federal district predictions as we actually have in we have an example of that in the briefs bridgeview cites to heritage mutual versus advanced polymer the southern district of indiana case issued in two thousand and then also of who's your insurance company versus r d ology foundation states indiana state court appellate opinion issued in two thousand and one for the proposition that property damage analysis in indiana is the same as no annoying however if you read those cases it shows you that judge parker in the southern district of indiana consider the definition of misappropriation of a style of doing business that's not what's at issue here but what's important is that that's the same clause that was at issue  hoosier and hoosier the state court implicitly adopted the definition of what the southern district said that phrase meant and by doing so that suggests that indiana state courts are more in tune with what the  federal district petitions are of that of that state's law not to mention the fact that what with ex data doesn't what it is basis termit what it says is that a decision that comes out of deal born in washington for instance means something but when that decision comes out of one thousand nine hundred year warrant it doesn't mean anything for purposes of a conflict the disregarding of a well established well reasoned body of law just because the court happens to be engaged in a conflict of law analysis does not make sense it actual case and controversies before that court the fact that there happened that was a question of first impression in indiana they happen to be decided by a federal district court again goes to the fact that the court didn't pass the question it didn't not address it's not he did not abstain from resolving the controversy it did and in doing so it applied the precedent and the principles of indiana law and predicted that indiana would would find conclude that there is no coverage under would give if any to those federal decisions and what you're saying is at least the court you do the analysis and whether the film hellfest comes up the same as the federal district courts or is there something there to look at is not to supplant one absolute rule with another one that the absolute rule that's created by x data is completely it does not work if it's promotes from shopping it disrupts expectations under contract what stephen is looking for is a rule that's consistent the scope of the attorney client privilege under new york law to conclude that because new york new york all new york block was unclear that there might be a conflict and ask such then went to the most significant contacts test in that case that's all we're looking for here is for the court to be able to use all the available assets or tools to it and to be able to conduct the traditional analysis that has been asked to conduct the x date opinion the process it unnecessarily ties the judge's hands behind her back and for no reason other than it's a conflict situation if parties agreed that indiana law clyde and there were been no question that under sears roebuck the court would have considered that authority in determining what indiana state laws for purposes of its application the distinction between two to say that there's a distinction between the complex analysis and with instructions for the court to consider the federal district case law that she was unable to consider in light of acts data and for the purpose of the term whether conflict exists and then to continue that the choice of say to the panel in front of me this is the same case that you decided before the only thing that's different between this case and x data is the names of the parties and what judge palmer did in the circuit court next well all of which we've cited that unless there is a true actual outcome determinative conflict in state law that illinois law applies the only time the there is a necessity to do a choice of law analysis is if number one there is no agreement by the parties of on what law applies and number two there is an actual conflict we cited a body of case law from indiana i know it exists in various other states where in those states hold that federal protections of their iraq are not entitled to deference a court that's a different issue yeah well but i think it's really the same issue because what state farm's asking your honour's to do and why it it doesn't surprise me very much that no one else is really asked for this is to take a prediction as opposed to a statement of raw and bootstrap it into a statement of law such that the trial court in this case can take that prediction and say  my conflict analysis and then apply it and if that were in fact the rule then the wrong wind of cases that say you need an actual conflict would be meaningless when it does well there is an actual conflict if you look at the federal cases roll but my point is where does that end well because the federal cases are not statements of in the analog and yanna courts agree on this the only courts agree on this so if you can take that those cases to be your threshold conflict of law what's to stop a judge from saying well gee i read a treatise the other day that makes me think that indiana might be different where i read an article in the that makes me think indiana just might be different i think the weight of the argument rather than let the short leg again which i think that there's a fundamental difference in risk it's back to what our supreme court has said our rule is and townsend and what this court has consistently said our rule is which means which is that we need an actual conflict to exist before we put a judge into this realm of uncertainty  because i mean it is and i think that the fundamental difference is if you've got a conflict then there is an interest in potentially respecting another sovereign's line of presidential authority and not having the courts in the state apply that state's law if there is no actual conflict between this state now there and there's just somebody who doesn't get to make precedential law predicting it and as your honor pointed out to one published decisions at the trial court level then we really don't have any sort of meaningful rule requiring an actual conflict before we deviate from illinois law and once you are in the a rule and i think it's a good rule that we're not going to get away from litigants in this court having the benefit and certainty of illinois law do you think it what you're saying that we should just ignore federal courts completely because you have a federal court sitting in india even though they may be on public are you saying it doesn't matter ignore them that should be the law right think it is a long that they were published in let's say there's twenty of them there's twenty federal courts in indiana that come down the same way i have a feeling and what you're saying is just because a court of the state is not issued an opinion on it we ignore those twenty decisions there's no conflict that's what you're saying it doesn't matter how all strong it is your state courts we ignore let let let me put it this way if you head twenty opinions most likely at least one of them might discuss some actual state law on which there well maybe might be a counselor hypothetical it may not  a state as illinois there's not as much class action i assume there's not as much class action disputes taking place there may not be fishies may not come up as often and therefore you know it might be more big no other states lot of big no predictions do not create an actual conflict and an actual conflict is what our supreme court in this court has said is necessary to create a conflict of law so in your honor if i could segue into that that's really not what we have here and i think counsel was a ruminating in her presentation when she basically said you've got to indiana courts failing american states there is nothing in any of those three opinions that analyzes indiana law the only indiana case cited in any of the opinions is a case called dollars versus harvey which is all about the standards for property damage half region which reads almost verbatim to this court's opinion in childbirth so far from anything in those predictions to support an actual conflict between illinois and indiana law the decisions if most significant contacts with a particular dispute and then do your best to gas at what that state would do that's essentially the standard that the federal courts when dealing with state law follow that's not our standard and there's no suggestion from state farm that there's anything supporting a deviation from the supreme court's role that you need an actual conflict u the shoots case some failed and actual conflict between statutory and state court precedential law and there is a disagreement in the supreme court about whether those decisions truly diverge the majority said minority the dissent said they did not but that was not a situation where it was mere predictions and again the insured if they want to be in a posture other than what our supreme court in this court has said the rule is in a default circumstance they're free to put a choice a law provision in their contract and this court has consistently held that such provisions will be honored like rise when really grants a greet in litigation that like a case should be decided under foreign law if there's some sort of rational basis to support  it this court in the courts of the state of tended to honor those agreements but the rule again where there is no such agreement there's no hint that there's an agreement here there's no question that there is no choice a law provision in the policy these circumstances in order to get away from familiar illinois law and frankly settled illinois law in this context you would need to show something that's different in the state now i'm not saying it has gone through i mean by item on the analysis that courts go through and interpret insurance policies in the two states and they are identical so essentially what you're being asked to do here is not apply an at conflicting prediction of another state's law you're at you're being asked to apply a federal decision following a seven circuit decision the my supreme court has rejected and this court i think rightly rejected that argument and acts data i think it should be rejected again to the extent that the court is inclined to look at which law which state has the most significant contacts here for any reason i think it's bizarre that in a circumstance where it's a tripartite dispute among three entities all of which are illinois residents that you would end up with something other than illinois state farm is in illinois and sure the insurance here is mr jerry clark who is you know in our resident the name on the policy is jerry clark state farm's entire argument is that his unincorporated business which has an address in indiana makes it an indiana policy but as we've argued in the brief there's no support for looking at the don't messiah will of an entity that doesn't exist so even in this particular case i guess this would be the one difference from x data in this case even if you were to sears roebuck was not present to the ex to court the conflict the friction between the sears roebuck holding that allows truck course the discretion to look to federal district court opinions for purposes of ascertaining a sister state's law and how at that pinion was cited here as the majority holding as they were presented the holding being that unless we're the state is silent and the only cases are predictive persuasive authority then there is no conflict   analysis and the constitutional context because texas law in the manner in which a district court opinion again persuasive not binding authority conflicted and came out with a different way than the kansas law did the oklahoma law also came out differently than kansas and because of that the court went to the constitutional considerations that were raised and found that it was too arbitrary for the kansas supreme court to apply kansas law to the entire class  process for the artificial distinction of a complex test because under the premise that somehow a prediction can not ever ever ever result in a conflict but that's not what happened in shots certain other sister states law why not allow them why prevent them from doing that considering that authority in a conflict scenario the only reason to do so is to invite to cement the form shopping that has been completed here context and yet allow them the discretion to use it in another or only looking for uniform application and uniform deference to persuasive authority if you're persuasive all the time or it's not it can't be persuasive when it's convenient for bri view and that's a another point that needs to be illustrated here rich few likes the x data rule because it goes in its favor but if they were in a situation where a state court had already ruled against coverage and they would be the first ones relying on a predictive authority from another state to argue that that state's law applied so another test of the integrity of an argument is could they live with it if it was the other side they can't and they haven't in fact in their in their brief they cite to several cases which are predictions of an other state's law to encourage this court to say well because the majority is rolling in this direction which it's not a true majority but if it's a majority is growing in this direction then x date is ok because illinois law indiana law is going to eventually favor illinois or be the same as illinois law but we won't know and we won't know in this case what indiana would have been in the u s to court were done because bridgeview prevented indiana the state court from retaining jurisdiction over this  matter with respect to the representation that the contacts here have to be significantly in illinois only because bridge she's in the state farm isn't headquartered in bloomington bridgeview is located in indiana and the individual business owner is located here in illinois is incorrect the hollow see is addressed to jerry clark d b a his business a portable digital with the address of terre haute indiana i bears an indiana prefix for policy numbers it was serviced in indiana had an indiana claim number the tender was made in indiana assassin indiana evaluated under indiana law and purchased and paid for  said that that was too arbitrary a contact to warrant a patient of the foreign law in their vision of the alternative form x data is an unworkable solitary out there on its own rule it has not been followed by a single court and it wreaks havoc with established jurisprudence the better reasoned approach would be to allow district courts to have the discretion in a uniform they have the discretion to look at persuasive forty for ascertaining they should have that same discretion should be afforded them for ascertaining whether conflict exists what's the bridgeview argument was here was well the prediction is inaccurate  never got there the truck was neat was not even allowed to make that determination on her own that is her judicial process that is what she is and is empowered to do and we know what the arguments are going to be from bridgeview and we know but what we don't know what the judicial process will will result in and that is what's the farmers looking for for this court to find that federal predictions your guesses if you will are data that a trial court has access to and you would agree that there's nothing to look at or would you well i wouldn't say that there's nothing to look at there's always something to look at it's just a question of what you can look at and the sources of state law are varied and different obviously the everyone agrees that the best predictor of the best statement of state law would be the state supreme court of that form and then you intermediate courts and then you look to other scrapers there's nothing in