the duty to defend us historically and i believe currently duty to defend is determined by corners four corners of an insurance policy the red and white of the four corners of the allegations of the complaint you look at the complaint look at the policy it or the claim is covered or it is full tensional here we have a nine count verified complaint there is no argument from the defendants that counts one two three with respect to the counts that you indicate don't seek damages so to speak your opposing counsel suggest that we should still consider those counts in terms of i guess getting a feel for the we we would be remiss if we didn't read the totality of the complaint must be what every aspect of the complaint was the conception and yet you don't take snippets out of a one hundred forty seven not be held hostage to the underlying plaintiff's allegations of intentional and wilfork because if you really look at courting the what the defendants say that if thirty six and thirty seven are there bridge the underlying plaintiffs who are the beneficiaries of the trust were really of the mind that leighton in incorrectly interpreted the language of it they put it legal documents and the plaintiffs are dissatisfied with the decision looking at it in terms of is there conceivably some fact pattern or allegation we could come up with that would suggest that this is negligence or do are we st except for the snippet that a document may have been ambiguous and not accusing weight and of improperly drafting that document goes through intentional conduct there are five counts and seek damages count at as they say this this could be the downfall of his case they say these claims are all based on intentional conduct however they could just as easily be based on negligence and that's not enough it's not enough because that would be let's act policy the court said well there's a duty to defend because any one of these clients could be considered negligent but that's not what they allege but it could be amended at any time to plead negligence well for someone like myself who  look at the facts and determine if there's a point which we look at the causes of action and say they could be supported by negligent by allegations of negligence but they're not you have to look at the complaint you have you local play the second district of this court in pekin insurance versus precision both held just that you can't look at something that doesn't exist you can't say it could be amended therefore it might be don't we're not dealing with a hypothetical complaint we're dealing with this complaint that's like looking at your courage no matter how long you stared a heart you can't turn it into a club to fill a flush if you play the hand you're dealt well the court found allegations of negligence there are no there's that allegation of an ambiguity in the trust document there is no allegation of negligence i'm done on the part of too late or his law for there is a theme in this complaint the theme of this complaint is this was a compensation scheme they even specifically allege under oath in their verify complaint that laden and his friends who were running the trust received in excess of four hundred fifty thousand dollars in fees from a trust that lost over three hundred thousand dollars that is what they're saying it was it the management the trust existed for a compensation scheme for himself and his friends grossly well they're not really true because i didn't do those things or my client didn't do those here we have the planet's chosen aggressively as they call it players chose an aggressive litigation the defendants have ignored interesting or not this is one of the few coverage occasions i've ever argued where there is no contention by the insurer that any aspect of this policy is anything other than clear and unambiguous no purpose other than to allow them to argue not in the brief but in the response of the motion to strike that what that order shows is what's not there late and didn't pay anything he didn't get it there were no assessment of punit is nothing but inherently intentional allegations and defendants argue to the extent the allegations have any merit they involve professional negligence and because leighton bought a policy that was geared for lawyers and he was underlying complaint and the nature of the underlying insurance policy there was a duty to do it by way of background the duty to defend a very wide inquiry and there are a couple of areas where i would agree with mr schumer and that some of his assertions you made to the court broad it implies to any instance where there is the coverage falls within or potentially within coverage under the policy so the in the initial status is almost a presumption that there would be coached in the question then becomes can we rule out any possibility that a little language of the complaint that there was no coverage and in this instance and i'll point to some very specific language in a moment that is not possible here and also what role specific role do the specific allegations in the complaint play and this analysis you know they play a very important role but i think in this particular complaint we can distinguish between the different allegations we have allegations that are hired to manage trusts assets as well as how he actually himself managed the trusts assets and then there are also allegations that they believe he charge fees they were unreasonable then we have a separate category of allegations and those i would  to as conclusory allegations as to motive and that is really the crux of the argument and the difference i think here between the parties i ask unusual is arguing today that allegations of motive can in some way transform a complaint that otherwise read attention to count five as an example count five breach of trust and we read through this complaint and how it is presented to the court in the underlying plane at all times to finish latent owed a duty that is it that is a negligence premise they go on then to discuss how they believe he breached that duty and then they say that he was approximately direct result of cause to the point that all right there is premised in negligence and there's no intentionality looking at the nature of that  and then you look at the language there as well despite the fact what else happens in the rest of the point here there are allegations that are not clearly intentional for example they say that mr layton failed to provide very forthcoming in that that's an aggressively over in his management of the trust and it there is there is no case law saying that this court cannot take into account the bigger picture and in fact in some instances has encouraged just that the prior courts have said the question of coverage should not hinge on the draftsmanship skills or whims of the plaintiff in the underlying action will now the case talks about looking at the allegations in the complaint your honor indeed it of course it does because that is a very important part of the equation here and missing from this particular under complaint are allegations that could only sound intentional misconduct for example there is no allegation that mr lane hid anything from the point that they complain there is a possibility of course as the plane of sourness that this could have been some you know broader intentional scheme but when we kind of get through that and look really what the allegations are the allegation is that they were dissatisfied with the with the representation he provided to them and if the court were to not take that into consideration and to not look at this with a little bit more detail it could inadvertently encourage parties to adopt a very aggressive litigation strategy despite what the actual factual disputes are in order to gain advantage and to strip an individual an attorney in this case of their insurance coverage  honor i would ask because the court distinguish between those prior cases where the courts have said you know what based on the factual allegations there is no possibility here other than that this was intentional misconduct for example one of the it your position that if the cause of action allege good be one found to be in negligence then if you can show that the new kit passed to new have the duty to defend no you're right i think that's broader than than our intent here our intent here is to say that so long as there are parallel tracks where you can look at the allegations in the complaint and find allegations that are clearly sounded and negligence as well as allegations of motives that they can also be premised on intentional conduct ninety yes your honor in some instances they can then we begin to look at the factual allegations contained with this in plain and what are the factual allegations i understand that there are some allegations contained in this complaint that accuse mr lane of intentional misconduct that's not the question the question for this court is are those the only allegations that are contained in this complaint and as we've discussed in our brief and as i'd like to try to your attention here today though there are allegations that are sounded in never since this in this notion that he misinterpret documents that his judgment when it came to the administration of property and how it was to be handled was  wrong that alone is not in itself evidence of intentional misconduct there are allegations that he failed to provide reasonable disbursements of income again that comes to professional professional judgment and  court especially when there wasn't easily verifiable such as the rulings or judgments of other courts in this particular instance of the underlying case there was a judgement an order and it's part of the procedural auster and but but to enterprise cross the board would you have dismissed your appeal or conceded the appeal because she looked very good i think in that point time we would be having a very different argument here today and then there would be a very different question about how if at all that finding or binding on mr lane obviously that's not what happened in this case in this particular case they were able to work it out in a very different way and quite simply i think it's it's appropriate to make sure this or disbelieve vine's in what information it might need in order to make a decision and again we refer to this that particular order and the statement of facts is part of the procedural posture to make it to the court aware that findings of fact were made but they weren't necessarily  possibility that the conduct here complained of was only intentional in its nature and here were the causes of actions our premise and negligence were many of the factual allegations about the alleged wrongdoings of mr layton could very  well be alternately determined to be negligence or intentional in their nature i mean clearly we cannot escape the fact that the underlying plaintiffs took a very aggressive posture here and were very dissatisfied but that does not mean that the court is bound simply by that characterization it's about looking at the bigger picture and certainly another factor the court to take into account is that there were a number of beneficiaries to this trust and a small number of them chose to br done it thank you i believe that it does because there will be if where the underlying plaintiffs are characterizing the motives they are giving in a pinch that is not a fact their opinion as to why mr late may or may have done something or columbia which may very well have different traditions and is something that could possibly possibly part of that the differences in how this complaint is posture but that's relatively theoretical but again i get back to in the cases where there has been a determination that they do need to defend does not exist with the courts have said is we will only find them when it is clear that the the actual action the complaint of conda could only be the in this particular incense the causes of action and many of the factual allegations that really gets to what they are complaining that mr layton did wrong not why he did it wrong but what he actually did wrong are which required them to put the interests of the beneficiaries in at their own and to avoid any self dealing transaction through which they would be compensated on behalf of the tribes for their own benefit then they allege the various ways in true the validity of the allegations or of no moment is the corner doctor this is simplistic you look at the allegations of the complaint in the light of the ensuring agreement of the policy and if that was