sooner the dram shop act against the defendant appellate ghani a mary who i am privileged to represent at the request of the yellow no insurance guarantee fund because mr merry's liquor liability insure it's that other insurance reduction it's mandated by section five hundred six a that gave rise to the certified issue the essence of which is where the jury returns a bird in a dram case in excess of the maximum statutory limit is the other insurance reduction applied to that higher jury verdict or does it apply to the maximum statutory cap that counts to the liability of the defendant let me put a little meat on the bones if you will all agree that in this case the plaintiffs have recovered one hundred six thousand five hundred fifty dollars of other insurance it came statutory cap and we submit that goo's mn at the is the correct answer if and contrary to and that the fifth district use in correct and we base our argument fundamentally on the pla and clear language of section five forty six a itself which expression he says that the funds obligation under section five thirty seven point two shall be reduced by the amount of other insurance recovered and that the liability of the person insured by the insolvent sure is policy shall be reduced by the same amount well in a dream case where the jury verdict exceeds the maximum statutory cap that higher verdict is not the liability of the dram shop owner its not the obligation of the fun and so that's clear right from the  plaintiff makes the point that the jury in a dream case is not told what the cap is and that's true but the act ends expressly states inorganic shall the judgment or recovery under this act exceed the statut so the dram shop act itself that actually in its own language says that the maximum obligation is the amount of the cap and it begin but of says the word obligation is not point three eight of the act defines covered claims in the third party context as an unpaid claim for a lawsuit falling within the coverage of the insolvent insurance policy for which a person insured under such policy is quote legally blind we get it graham case where the verdict cvs the statutory cap the amount for which the insured was legally liable is the amount of the cap  meaningless now it is true that in a case where the fund is not involved that is how set off are handled if the there's a higher verdict s to deal with and if if i may refer to justice burke's very comprehensive opinion in the rockies where she interpreted that kirk version of section five forty owed was twenty thousand dollars there was a settlement for the policy limits now after that settlement occurred the insurer when under and so the case then came to the fine and the other insurance provisions were triggered by the fact that the insurer had one hundred thirty thousand dollars of medical insurance and justice burton correctly held following express language of section five hundred six that that other insurance basis of the other insurance provisions which this court has recognized in haste and case if i may quote it in that case you held that the fun was entitle to and also the insurance buying public of the state of illinois who provide the assets of the fund through as the courts have recognized through their payment of premiums and it it's a balance that if the legislature had to balance all those interests and come up with some solution and the solution they came up with is that if there is other funds available from a solvent sure we will credit the fund with those funds and the fund then will make up any difference as they will here there's still some twenty three thousand dollars to be made up whether you believe that's a license solution it is consistently cited many cases from out of state and it is consistent of the legislature the purpose of the dram act really has been satisfied here because plaintiff will recover his full one hundred thirty thousand dollars cap a large part of it from insurance solve assurance that he recovered and then the fund will make up the balance but in the guaranty fund act purpose will be carried out because the fund is going and the insurer the statute also says that the insured who is to be protected here too he bought a policy the company went under repeated premiums he's another party that needs to be protected and this in the statute says that the didn't get heat to get the same reduction as the fun in his obligation for the amount of other insurance that's recovered and they say that's just how the legislature decided to do it is it a perfect solution does it always put everybody back in the same situation does it of the fund the source of the limited source of assets of the fund in the legislature solution that's what the law requires and we respectfully submit that that is exactly where we are in this case again  pocket some twenty three thousand dollars that wouldn't exist but for the phone and the ballots will be made up from the other ensures that they have recovered we submit that's the correct result and the first district analyze good morning may please the court counsel my name is chris custer and i do indeed represent the state rogers and the rogers family before i discuss what the funds obligation is under five forty six and six twenty one day of the grand child back i think i would be remiss in not at least for fifteen seconds mentioning the events that led up to today october twenty second will mark the four year anniversary when roy rogers eighteen years old was killed by a drunk driver growing trees a lost their only son alien dari lost their only brother on october twenty second two thousand and nine a tragic but all too familiar chain of events roy was going home from his girlfriend's house going back to his parents house griffin and in the case we certainly had discovery and we know exactly what happened because we have surveillance is one of those all too tragic cases where the mr winner out there with the drug driver we have video of him breaking the fifteen bottles of beer falling off his stool twice when he leaves he almost backs into some patrons in the parking lot travel south on forty five and run it and runs into killing  a policy of liability insurance the minimum out of twenty thousand dollars that is tendered to the estate to the family of the rogers family had their own auto insurance from pekin surance company that they carried under insured motorists you know i am protection suit was filed against johnny and mary in june two thousand and ten seven months later after we conducted discovery and were very close to selling the case constitutional to play by the normal rules that you play in branch on cases we're going to have different rules there are no different rules there is nothing in section five forty six of the guarantee fun act that says what what the fund is saying it says doesn't even mention the dram shop act there is nothing in the case law that says when you have a case where you have the fund involved instead of the private carrier then you reduce the monies from the received from the other insurers from the branch shop limit instead of the gross the verdict it doesn't exist i like the roth case too but that didn't stand for that would that set is when we talk about other insurance health insurance suppliers that's what that he said there was a settlement in that case so the question we have before us is there anything in the fund that or any case that says that the other insurance proceeds in this case one hundred six thousand dollars and i hate talking about money we're talking about a loss of a son is deducted from the liability limit of one hundred thirty thousand dollars for the gross jury verdicts in every single frame shop cases there is a three step process in every case there is a three step process the dram shop back twenty one a could not be more clear it says in every action in every action a jury shall the term of the amount of damages regard list of without reference to the the limits issues a verdict based upon all the damages and the parties in this case agreed that the jury verdict would be far in excess of the limits so that was not an issue thousand dollars we reduced that from the jury's gross verdict happens in every case you get down to three hundred ninety three thousand dollars then and only then if that verdict amount still exceeds strict construction or are we talking here and probably was but i think it's i think it's both but primarily just as i believe it's a statutory construction and as this court is well aware when you're trying to construe the dram but you're doing that likewise by forty six say the fund act is being satisfied because they are getting the real reduction from other sources which will happen just so happens in a dram shop case the way the way it's set if we train my sis reconstruction the language of the statute says the funds obligation under section five thirty seven point two shall be reduced by the amount recovered or coverable whatever is greater under such other insurance so my first question is what is the funds obligation that is indeed the million dollar question and that anyone who says i can answer that anyone who says that it's defined anywhere is incorrect it is not to find the funds obligation trial which twenty one a says you have to have in every case all you have to do is call the comptroller's office and figure out what the statutory limit is for that particular year and then reduce the amounts received from other sources that's what they want to do of reducing it from the look the other money received from the others insurance sources they are they are receiving that mr griffin or you bill they said we don't get any benefit because they would never pay more than a hundred logic you would you wouldn't know if i and gerry you would know why a plaintiff is right turn jury trial the fun is indeed receiving but that they will never have to pay more than the statutory obligation should be reduced by the amount of recovered or rickover bill but not my point is just farmers that we determine the just the funds obligation by going through the process that in every single case we go through a dram shop case and that is you have your jury trial the jury that the plaintiff has the opportunity to present it to the jury and they married her and then we deduct one hundred six thousand dollars or c from other sources and again then if if it's still more than the statutory limit that judgment is entered by the trial judge for the statutory limit they are receiving the benefits you know with regard to the jury trial i did see in the reply brief that counsel did try to i guess rationalize when you might have a jury in a case like this and i guess i will for it to be the heads i win tails you lose concept where he says well you know what i guess we could have a jury trial let's say we try this case with the rogers family and you know what we'll take a shot we can't lose but if it's if the jury verdict is one hundred more than one hundred thirty thousand dollars we're going to take one hundred thirty thousand dollars tranche of limits and deduct one hundred sixty six to come up with twenty three however plaintiffs i'm sorry if you if you could have the judgment where we think this judgment might be whatever million dollars you pick a number you don't get the benefit of the doubt of that and i hate using baseball analogies in this town but we don't want to be like it the bases are loaded so we'll give zero run instead of one but if you hit a home run or if you have an a running you don't get the benefit of that of that you go down to the one run rule or the statutory limit that's not what anybody invision there is no section in the guarantee fund that it mentions the drain shot back there is no common law case that says you have to do what they say you're supposed to do you do them a little confused to go through you mention that you're ok with men said we should have to pay attention to that we should not reduce any fun perceived from other sources because our underlying case was a common law case against a drunk person and this case is statutory case against the trend because one statutory once common law they don't we don't have to apply that's wrong that's wrong we met head on in the trial court we met head on in th district for this very issue we talked specifically about construction of statutes and we have to harmonize them to give effect to both that possible and the fifth district did exactly the right thing and said we can give effect to both they are  harmony but if you if you do with the first district did what the fund is suggesting we do here you are completely no we'll find the plaintiffs right to a jury trial you are completely ignoring the statute that says in every case a jury shall determine damages irrespective of the statutory amount so i can't say they more strongly than that pleasure to be here is an honor to be here thank you for your time if you have any more questions and willing to all you're going to have to pay the only likability of the bar owner is going to be that cap and while he continues to say that the word obligation isn't defined in the act if  reference to five thirty seven point two which is the fund shall be obligated to the extent of covered claims and what's a covered claim it's a it's a loss within the coverage of the insolvent insurers policy for which a person doesn't talk about the survival after the wrongful death that it's covering any plane in the world that's covered under a policy of an insolvent sure and in this case it's it's covering a dream claim in which the maximum liability is some hundred thirty thousand dollars and that hundred six thousand dollars of other jurors by express language of the statute gets set off from an ad about under his view of life but in all  respects and it's a tragic acts that i don't mean to make light of it but it is in his view i mean the statutes mean as we just go ahead and apply the set off like we would if there was no purity but you know five forty six take it off the higher verdict there's no actual reduction in the fund wouldn't get any reduction and you know that given the fund is involved it does make a difference and given the legislature created this section five forty six this court has continually recognised that  meant to mean that the fund is the source of last resort and we've looked at other solvent be sure to protect the assets of the fund when ever it's available and it does change the normal rules with respect to begin to the rough case if i could refer to it the limits no that wouldn't be a proper reduction in a case where the fund wasn't but over the fund is involved it can make a difference not always been in certain cases it does and in this particular case again  legislature views this is that it may have made a difference but there still was a such a pot of money available to equal that one third and that's what the legislature has said if it's a pot of money  might come from solve insurance and it might come from the fund or is here it might come from both and the word does that's we're going to hold that that satisfies the outlook and fund is entitle to that reduction in that way