like to hear two minutes shouldn't rehash it so i'm not going to rehash it this morning i'm going to try to simplify this for everybody because in preparing for the argument today i drew myself a little chart and i said the edge in a room where on one side we have a few in plano and on one side an insurance company and obviously that's not very hard to imagine and in the middle we have a fence and the fence divides the two sides and the judge from the trial court was on the fence and the question was which side to cheaper lawyer to on the side of the plaintiffs we have two all three of three we have the illinois code of civil procedure we have a statute that was promulgated by the legislature to deal with the technical rules involving litigants we have the judgment creditor and we cases dealing with trust three or three on the one side and all the cases dealing with supplemental payments provisions on the other side because when you read them or understand how come the cases of going down the way they did and whenever there's a close call and i think there was a plan with the trial court is when you try to reconcile the two because i don't believe that you can i don't believe that you should saw when you were reaping staff thomas yeah soon she stood for it and me in my  nativism part of that policy plaintiff is not a party to the contract there is an assignment of some sort and we have a nexus not ability case that's pending and we did try to do this type of motion in that case but the court had said that wasn't the proper place so right now the plaintiff is not the insured and my rights are extended to right to i own my insured under the contract an injury to the plaintiff in the shoes of the insured but his rights are not greater than that the first district decision which i say is an excellent decision one i would ask you to read over and over because that's a decision i think that will tell you how to resolve this case and then we have cashed out which again is a first district decision and then we have which is fifth district and i think the problem with the fifth district as you'll see when you read the case is that they acknowledge there's a difference between the two they said the trial friel three is a different concept than the supplemental payments provision but in the decision they start that poll one point each side to the other side when it's much easier just to look at it as a supplemental payments provision and had me stay the course it's a very easy decision to decide how it came down so when we look at the trial three or three cases we really have to look at the language of the code of procedure and i would tell the court to remember that people stay up which is a very ok from sixty four was the first decision in illinois to discuss the proviso that was put in during the three and a half years that he appeals what happens to the entrust prior to this provides all the plates you have we took the appeal they flew off the interest when the proviso came down it came up with  wants to stop it the judge has to make a choice of how to stop it by looking at the statute and complying with its terms so when you read the proviso the judgment to honor may tender and remember the word is tender payment of judgment cross and interest so in the proviso it's very clear that there has to be a tender there has to be a payment of judgment costs and interest on the products come up over the years is the separate and distinct debts there are and we don't disagree with the case law where it says when you make a legal tender i personally think nobody knows what the word legal tender means but there is an established meaning from very old cases prior to the statute that said everything let's do to make the plaintiff whole so when you look at the public policy behind travel street you have a question defendant if you want to stop your interest to me appeal you got to do this crack to the ladder of the law judgment and the suit against the insured with on guard duty to pay interest and when we have paid off to pay or deposit it in work the part of the judgment that is within our limited press and i am saying that we have a freedom to contract we have to make sure word entire all so the right to clarify what the problem was in the language so now we get to our it and how it goes one step further and changes it again and he puts in what we've put in which is we twice real street first of all they can't really more into it but it's a very simple reason that policy said it has to offer to pay it didn't say deposit with the court and in our language says offer to pay for deposit limits we offered to pay the interest here that is what we promised the insured under this provision we would do that was what the reasonable expectation of our insured was nothing more nothing less now please also review the entire supplemental payments provision your honour's because i believe that if you take a look at page three of our policy and we have cited the entire policy in our brief and we attached it i think we can kind of desp the cost problem much easier than struggling to fit the word cross into this case if you look at paragraph five and there's basically six supplemental payments that the insurance company i was and how anybody knows about these things and so you the insurance company has offered to pay the full insurance policy limits and run a million dollars plus accruing interest to date with respect to the judgment quarter and is willing to pay the amount on plaintiff's request right and where into court and i say i want to so we judge and here's my judgement order and the judge says to me i never i never gave you cross i do play this argument because some mandatory here in the judgement so what i'm saying to your honor is to read to search you know  read river mail you read about it's a speedy retreat you sure as nominees have to speedily retreat but they've got to do it correctly and i would also the suggest to the court that when you take a look at helen and all these decisions they talk about tenders and payment much easier it's an offer to pay so i'm not asking you to excuse anything and one other thing if i could just digress when you read median cash eola that was a case where every one of those decisions did make a distinction between two thirteen all three and  provision this court has said it three times it's totally two different things such as that you know three it's one thing for the debtor and under the insurance provision and move in cash you know i think the first just really wanted to give the insurance company the win because versus the case law cited to them in my case we have a statue imitations it's ten years for this define breach of contract actually we have an insurance policy that puts a time to one year same argument you can't do it because it's one year here it was ten the court said not rubbed up against the insurance code not the statue of limitations and the courts said since you want to put them in the same position you've given somebody heard by an insured motorist a greater statute than the on a ship that was against public policy they us how to tender our interest but i would ask the court when i use give me a clue direction because if i don't win this case i don't know how to pay for this tomorrow i truly don't so we want a clear direction how do we pay under five i paid across monday council give us the cross we'll pay them because we are rich to be insured that has nothing to do with stopping her interest so i would ask the court to please reverse mandated back to the court and so we can save about two and a half million proper tender of their policy what this court doesn't have any jurisdiction over is what the insurance carrier now asks you to make a decision on and what wasn't that they didn't ask judge  russell to make a determination on and that is one of the rights and responsibilities of their policy with regard to their insured who is now in bankruptcy that was not an issue that was raised before judge gra post judgment interest this is in the record this is what they filed in the corporate world and september twenty second two thousand and eight they asked to move the sample quote for an order finding it all post judge the interest under seven thirty five miles yes five they said no in fact this is a dispute between insurers and the plaintiffs over whether defense counsel made ineffective tender i'm behalf of the defendants and accident so if we look at what was done in the  obligations and rights and the insurance policy with regard to the bank of insured what those rights responsibilities that they have that's what's improper no one is here to in interest who's not here and he's not here and has a stake and so they can pursue that you know what they asked the court to do was to make a determination of their obligations to the pla could have done that they certainly could have done it they asked us they asked us for a i don't as a show of our cross we provided that to them and they never made an offer then to pay those costs cite in your decision the river valley decision all villes or declaratory actions that's what they are that's why we were looking at the terms of the policy because that was what  for proper tender and that's the question that we have to do make a proper tender and without looking at the costs just looking at the issue of of interest what is the responsibility to make a proper tender with regard to specific enough right and so just looking at the interest portion of what the court is told told them this is how you stop your your your requirements this is how you tender they didn't follow that  dickerson cases in one thousand eighty seven case now this case and specific to your question about they said that they could never comply with that to go through because they don't have enough to satisfy the judge or well helen was a twenty five thousand dollars limit policy in which a twenty two point five million dollars judgment was entered they then tried to tender their portion of the policy to stop a portion of the interest and the core made specific guidelines so to say that because they have less than the judgment that they can't comply with thirteen zero three that's just not accurate and however in the court outlines specifically what they were quoted to do wonders and as he outlined it the full amount of judgment upon which interest will look so we have a definition from the appellate court of what is the judgment and we had an outline of what they're required to do in order to stop contemplating the instance where you don't have a fair policy limits to pay the judge when they actually example which is and then they give an example and all of this was available in the insurer knew about it because they sa proof as well as a proof to you you know i don't think it appropriate tender was made on the interest i don't think it appropriate tender was made based on the conversation in the letter that they reference to us that was a offer or will they indicated a willingness to pay but it was put with conditions and those conditions were that was for full satisfaction of the judgment and the reason why i said it because i was the one with the conversation and i was the one who they specifically referenced are prior to me and to resolve the case within the policy limits before try it so the case law is clear you can make a conditional offer to resolve the case which is what they did in this case now we get to the issue of costs they want to tell you well we're not required to pay costs but the costs or the costs are put is part of their policy part of the policy indicates that they're responsible for costs so if you want to look at their policy the mayor cases it is a first district case where it indicates that the language of thirteen zero three is mandatory that is not something that you can choose or pick that you know because our policy doesn't include choirs that we don't have to follow it it says that the tender must include that the creditor must include all the credit has a right to recover the debt interest and costs and if the tender is less than that in the last ten years no so what we're left with is the insurance carrier now coming to the court and asking him to look at their policy when they did this judge press will do it but they didn't when they specifically told judge russell that they were their interest was what is our obligations to the plaintiff under thirteen zero three and so they can't now come before you and ask you to throw thirteen zero three out in  faith case where in front of judge larson counsel had the assignment from the bankruptcy court so at that time they were j m s truck in a previous state we were on the fall with them talking about working this out and it came to us that they believed we had stopped interest that we threw the kitchen sink we just said to the crowd tell us how to do it you want the interest you want the cars you put in the bay towing what to do and we specifically asked for an order that said that we satisfied our supplemental payments provision insurance benefits and really just go and fight the appeal there is no action being taken against the insured there's already an eight point eight million direct i'm not putting any charge of it onto the insured it's already there contractual obligation and that's what we had asked counsel to agree to when he shows you might order it says we satisfied the supplemental pay was provision but that this was a do can't trust is part of the access case and council said no what i'm suggest do it you can use the councils are you me my own name i was twelve three or three remember no interest not cross the quad supply and it doesn't have to tell you what's wrong with it is a supplemental payments case in which unfortunately talked about a tender we took to a tender out we don't want any confusion what that meant we said offer to pay us that a body on the street wants an offer to pay it's simple that we did as we offered to pay we did offer to settle council keeps telling us we offer