may please a court my name is james rubin and i represent horace mann insurance company and what i would like to do today is first address your screen dispute with lexington and then after i conclude my remarks about that address chorus man's dispute with and first man's dispute with lexington concerns the issue of whether or not horace mann gave proper notice under the insurance policy and i'd like to e decision such that lexington could not deny coverage the endorsement number twelve provides that course man shall give written notice as soon as practicable after the control group which is defined in indorsement number twelve has knowledge of a claim that is either reserved for more than five hundred thousand dollars as its own a few transient and therefore endorsement number twelve only requires claims to be notified to lexington where a horse man has concluded the exposure is five hundred thousand dollars  greater and therefore lexington should know about them under indorsement twelve than horse men mostly give written notice that hit it has now it's such claimed it did four times during the month of march it did first on march fourteenth and something called an extra contractual liability claim report it did second march twenty fourth twice it sat one in the morning and one in the afternoon two more parts for contractual liability claim reports and then it gets written notice a fourth time on march twenty fifth those four written notices should be considered in the context of the preexisting written notice of a potential claim which was given on january eleventh two thousand and eleven under clause night of the policy and under clause nine in order to give a written notice of the potential claim for stan had to provide detailed information which it did the written notice in march sure also be seen in the context of the fact that horace mann provided lexington at lexington's request with horace man's entire claim filed on february sixteenth two thousand and eleven then on march seventh force man provided lexington with a verbal notice that a demand had been made in the amount of seven hundred million that demand the notice of that demand that was given orally i mean on march seventh is reflected in lexington's her claims notes which are a forty nine through fifty three lexington's reservation letter actually referenced way back to september it did so do they you think man's at a disadvantage arguing here it when when you are right proceeding under the theory that that there is now a demand for seventy million dollars and he testifies of trial and that is at a one twenty six that he realizes that that demand for seventeen million dollars claim is ten million dollars if one looks at the first three contractual liability report which is at a sixty nine seventy horse man actually recounts the conversation  with where is man where he'll find that the settlement value was ten million dollars or less then on march twenty fourth there is a another environmental extra contractual claim liability report where whereas men disclose that it made the first offer to settle the claim of three point one million dollars that was actually made on the twenty third of march then again on march twenty fourth twice they said and two separate x two contractual plainly bil that's it it eighty three it then explains that the negotiations took place during the course of the day and the parties ended up with a demand of a half million dollars and if you offer from poorest man to seven million dollars the next day in settle unless you get written consent from lexington and by the way i would like to become involved in the negotiations so that their time march twenty fifth mr berkowitz actually had sufficient information to actually volunteered to become involved in the negotiations horse man's mr owsley rights back on the same day on the same day and age eighty seven and says wait a second you told me previously when you sent your reservation of rights letter and called me as a courtesy matter to tell me about it that you didn't have anything further to do with this claim and that settlement of the claim was entirely up to  day of the claim he also says if you now want to become involved in the negotiations give me a call on my cell phone and he gives a cell phone number to mr burchell and he says that if you don't want to become involved in the five and he said if the matter settles for or between seventy eight and a half million dollars we have no objection their e mail also contains a very narrow reservation frights it says we do performance of professional services that's not an issue in this case so the reservation of rights in martin march twenty five is of no effect and no relevance to this case when instead it is of relevance to the case is the fact that lexington consented to the settlement on march twenty five so not only did lexington get written notice four separate times during the month of march it actually consented to the settlement and because it got written notice and because it had all of that information enough to opine on the settlement value enough to consent to settlement it had written notice and or endorsement number twelve alternatively even if for some reason the court were to decide as lexington argues that horace mann was obligated to give written notice that the demand by the end you could live with technical notice in here technical notice if lexington was correct that we had to inform them that the notice which the demand was in writing that took place and june seventeenth under your quilt that notice would be reasonable in time and because it would be reasonable in time the burden shifts to lexington to demonstrate that it was prejudiced by getting notice three months lexington has not alleged predator prejudice it has not offered any evidence in the record of prejudice and therefore even under the actual notice doctrine the alternative doctrine of which we argued in our briefs  this court should reverse the lower court enter a judgment as a matter of law in horace man's favor because horace mann satisfied the conditions of endorsement number twelve or alternatively again provided actual notice in a timely fashion and there was no prejudice cirebon i want to cut you off on the merits argument but i would like you to address the position of lexington and the testimony such that the court should not have taken the case away from the jury there were two allegations made against dan by horace mann that it committed professional negligence because it gave improper  advice in guidelines about the dangers of giving notice of the potential claim it actually said that giving notice of a potential claim could result in losing coverage expert that statement so it is uncontested that the guidelines that were provided and whether to give notice were wrong then what led course man gave directions to a on three separate times on aug twentieth aug twenty third and september twenty first and instructed them to give notice to lexington mr gettleman hands in the house lawyer c that those notices those directions to and each contain sufficient information for any competent broker to understand that there was adequate information to satisfy cla information to go to lexington and to inform lexington of a notice of the potential claim in each instance aaron failed to give the instructions fail to give the notice to lexington that they had been instructed to give the then what happened as a result of that is that lexington didn't get notice of the tension claim it then sued later on and claiming that there had been a claim in the prior policy areas that had never been noticed had had and followed the instructions that horace mann gave on three separate occasions in the prior policy period that is prior to september twenty  lexington which worst man had to defend would have been unnecessary and therefore there is not only negligence on the part of force man but also proximate cause leading to the damages that horace mann incur defending that litigation that would have been unnecessary for that reason your honor the judge and i live district court improvidently took away from the jury the case of whether or not and i was professionally negligent and whether or not that negligent proximately caused damages there was sufficient evidence both factual and expert testimony to go to the jury on that subject in respect to lexington we asked th court enter as a matter of law judgment in horse man's favor because there was written notice satisfying endorsement twelve or alternatively there was actual notice and lexington failed to prove that it was in any way prejudiced accordingly honor we ask that of the court reverse the district court in the case of lexington and your judgment in horseman's favor in the case of  court my name is joan collins and i represent the appellate lexington insurance company i'd like to first address the rule fifty question because and lexington this court is carlist to hear this appeal specifically three the supreme court has repeatedly and unequivocally stated on multiple occasions that least four that the subject matter of the party still fifty motion it's entitle it to judgment as a matter of law cannot be a church i review in court unless that motion is renewed under rule fifty the only argument by horse man in response is that the procedural posture of the this case is different because the court entered a directed verdict or judgment as a matter of law that the case wasn't submitted to the jury for its own independent consideration of the facts and the evidence that's very same argument however was rejected by the supreme court in the globe liquor case a case that was appealed from the seventh circuit where the seventh circuit adopted the very same reasoning being urged by horsemen and the supreme court unequivocally stated in the global liquor case that there is no difference between a directed verdict and a jury  now but again it's a different case a yeah yeah the a deal and the appellee made a completely different argument which is where if you file no rule fifty motion you can't have any appeal whatsoever  justice thomas remarked in uniform the only or before the court for consideration is the are committed by horace mann that is the failure of three new it's rule fifty motion and while horse mandating that unfair the supreme court has stated more than once that rule fifty b is grounded in considerations of fairness horse may have spoke about the march thirty male lexington believed that there was a claim preceding backplane and then there was an issue of whether horace mann notified lexington of any such claim made during  policy lexington believe that the september fourteenth letter september fourteenth two thousand and ten which wars man received on september twentieth two thousand and ten met both definitions of claim under the policy  policy has two definitions a claim there was a written demand for monetary damages and there was also a an a d r proceeding where monetary damages are being sought against the insured and lexington's view that letter met both definitions the letter was from the plaintiff's lawyer to the defense lawyer hired by horace mann to represent horace mance insured and that letter stated that the players lawyer did not know who was handling the case on behalf of course man but as a defense lawyer to send a message to the plaintiff's lawyer was not interested in the twenty five thousand dollar calls he limits he said that he was going to talk about extra contractual aspects of the case at the mediation and that the only way the case was going to be settled was if horace mann acknowledged its extra contractual exposure didn't say future it's extra contractual exposure and openness limits it was essentially a demand to bring its checkbook to the mediation course man did attend a mediation course man brought it outside counsel to the b d a sion and contrary what mr rubin stated there were previous settlement demands made this case at the mediation there was a demand a for six mill dollars i believe and the counter by horse man was two hundred thousand dollars extra contractual money was author and that is that they believe eight to sixty one in the post mediation reported by horse man's e c l counsel man also argues that the letter itself is not a mediation the letter is not a claim because the letter is not a mediation well no document is a mediation it's a notice of mediation and indorsement twelve of the policy specifically states that  claim is made against horace mann when notice of a claim is first received by horse man therefore one horse man received notice of this letter notice of this mediation and september twent claim was made against horse man that is policy language that horse man never addressed once and this entire case and that is why it meets the second definition of claim now lawyer be writing to an insurance company asking open its limits he wasn't looking for money and to construe that a claim has to be for a specific dollars model with real many complaints out of the context of a covered claim in fact there are certain jurisdictions where you can't specify a dollar but there still claims now horace mann believes that the only claim was the march thirty minutes and there's a lot of discussion in a brief about oral vs written notice but the fact of the matter is that lexington received neither lexington was never told that there was a written demand for monetary damages lexington was never made it could have forwarded lexington a copy of the march thirty map it could have told lexington that a written demand for monetary damages was made it could have told lexington that a written demand for seventeen million dollars was made any of those that that conversation happened but there was also no dispute both alison leigh and burkle testified at trial that no one recalled there ever being a statement that the demand was in writing and mr berkowitz testified that he felt that that demand was no different than the other settlement demands that had been ongoing throughout the case he had no reason to believe that the demands converted into a formal claim as there was no evidence in the record none whatsoever that any conversation told mr burke holds that that there was a written demand in fact he testified that had he been told there was a record of me and a demand for seventeen million dollars first thing he would not have for a copy of it that would have sent off alarm bells at the insurance listed lexington position that man has to receive a written demand or that lexington has to receive a written notification from the man that there is a potential or there is a claim being made for in excess of the policy requires written notice of cla from man to lexington yes and you can so what difference does it make of man if the law if if i didn't know that man had received this thing and in writing if the if it just requires man to notify lexington in writing horse manned a yeah there's two aspects of this there's a lot of argument about written notice versus all those lexington took the position as spirit knows that a claim and there was none  mr rubin talked about these reports and none of those reports is there a discussion about a written demand for seventeen million dollars dollars discussions about the settlement negotiations but it no point was it specified that there was a written demand or a claim  regarding verbal notice you believe the verb this is not authorized under the policy but even if it were and it's not we were never told her believe that there was a claim we were never told believe that there was a written demand for monetary damages lexington was virtually told mr burroughs was virtually told that there was a seventy million dollar opening demand he did not know it was in writing he did not know that w so as far as he knew this was still a potential claim with ongoing settlement discussions and to your point it during mr rubin's questionnaire lexington had taken the position of the september fourteenth letter was a clear and central reservation of writes a letter  discussing that course and never told lexington that there had been a subsequent claim why do you think the court didn't give much there wasn't much discussion about that other than that it was laid out but then the court just picked march third offer made the night before but we conceded it's a claim because a claim should be construed broadly because it does seem to me that your strongest position is if the september fourteenth your position is to september fourteenth letter is adopted because it eliminates all i mean there's no question you didn't receive notice until january right all right and it was made in the claim was made prior to the policy period so notice actually became irrelevant because it was it had a claims made policy has been made and noticed in the policy period or a certain time thereafter and this claim was made and received prior to the inception of the policy period and that's been our position from the outset regarding the may third e mail denied ever receiving notice and those allegations state that they had given us notice of a claim prior to the settlement that the parties discussed settlement value after receiving a notice mr rubin says that the counter claim it's actually became a notice of a claim that is the condition precedent was contemporaneously satisfied with the breach they are they asserted satisfaction a condition precedent breach and bad faith all in one shot and we d d ever receiving notice and as we point out in the brief that argument the argument has the actual notice and a certain waiver of human only for the first time in opposition to summary judgment we have been proceeding for four years on the allegation that horse land had ordered a claim to force me prior to settlement and then it suddenly changed and we argued in the seventh circuit has a long list of cases saying you can't change your theory for the first time and the theory became to forget the notice prior to the settlement four months after the fact four months after we settled the case consider our complaint notice a big claim and that's a change of theory at the satisfaction of a addressed in the context of lawsuits as a rule instead of an insured tells an insurance company that lawsuits been filed against it and give sufficient information for the insurance company located accounting of the suit then the fact that the insurer didn't follow informed lexington that a written demand was made or that a claim had been made against it and the only argument lexan it would have was well you never followed up in writing or you never gave us a copy of it had lexington only complaint against a guy is the third party complaint that was filed in his kids it was filed on june thirtieth two thousand and eleven and it was the direct result of lexington sure we're not going to dip into play you because you didn't tell us about the mediation number three we're not going to indemnify you because you didn't tell us that there was a truck well what happens here is quite frankly the arguments now proffered by horace mann third party complaint have been foreclosed by the district court's decision that a claim did not exist until march third whatever went on in september and august in two thousand and ten has nothing to do with that now and this is exactly what they want they wanted the march third to be the cut a on has nothing to do with that in their third party complaint they allege that we stop seeking your refunds on jerry we're eleventh two thousand and left so we had absolutely nothing no negligence or anything to do with this letter of march next despite the fact that they have pleaded themselves out of the picture with the third party complaint they still want to go further even though they haven't played at this date that they got the judge to at least listen to them and he says well look here's a good hear that you have a song on a time had filed a notice of potential client in either august or september of two thousand and ten that well i want to tell you this whole improper argument advice argued that this has been manufactured out of whole cloth during the trial of this case when i cross examined their only witness the reading with trill she had to admit on the stand that she never had a single conversation with a guy about this case not one conversation so i said if you a copy of the complaint in this case because you remember when to send over an office he doesn't even know what this case is about if it doesn't have a complaint it doesn't have any pleadings he says look but i will find all the notice once you in was a copy of the complaint now those who are thinking about improper advice is belied by just take a look what happens when they finally come to us on nine twenty four she sends us an email that says look i have done some digging on my own that's what the e mail says we have decided that there is no actual contractual liability we wish to withdraw the map it doesn't say anything look at the whole quote not the little truncated quote that they try to give you in their brief she says i withdrew the cry because i believed it was like another case and i made the judgment on my own that we should withdraw it and i said cross examined when you make that judgment on your own you didn't ask about this he said no sir as i said before i never had a conversation with a on about this and this whole nonsense about failing to follow instructions this is ridiculous if you take a look at the pleadings here you will see from the moment that jurors get this he says well look time she comes back and she says it is ok with mc and if you get any doubt about this year i was wanted to take a look at my cross examination of her i said isn't it a fact that you said on those three occasions that it was ok with you say that it with probably notice a potential claim that someone like said to would have discovered that there was a mediation and that lexington would have discovered that there was a trial that well let me say this there is not one shred of proof about that lexington never said that they wouldn't have filed the action vereker when i asked their expert i said no well you're not trying to tell the ladies and gentlemen of the jury are you that  that that that somehow that september fourteenth letter would have been found are you and he says no sir i'm not trying to say that because he wouldn't even buy into this and let me tell you why he wouldn't buy it today because as it turns out the evidence in this case is not one of their witnesses wouldn't acknowledge that they ever even saw the september fourteenth letter until they were to post and what isn't streaming the amusing about this whole thing is that the evidence  it that they did everything in their power it was them who kept the trial date the mediation and the september fourteenth letter away from both lexington as well as a mr jones was there anything in your contractual relationship with man that required you to be the exclusive provider of notice or could they have just done it themselves absolutely not in fact i want you to take a look at the very first page of the burton and not out and that's in that contract and that was introduced into evidence and the judge makes a big point about that in his district court finds i don't think you have to have to go there when you take a look at all of this and how they plead it themselves out of lives with their own third party complaint we just say to you if you take a look at the very evidence in this case there's only one conclusion here let me begin by lexington and i misunderstood the court's question in respect to fifty i think yeah i think that's critical and rule fifty being on its face on its face applies only fifteen a motion has already been granted involves we are a jury verdict has been returned to the jury verdict is returned the purpose of fifty b is to enable the court to have a second review or perhaps get hung because the court took away the case and it did grant the fifty a motion so on its face it doesn't apply none of the cases cited are cited involve a case where there is no jury verdict fifty b only applies where there's a jury verdict or a hung jury it's a very simple proposition if you read every one of the cases they cite every one of the cases involved the return of  so they've taken that argument completely out of context as men affect their globe argument it is similar to the argument that was made in lyndon and the court said you're taking out of context o something the supreme court said in one thousand nine hundred eighty eight second the september fourteenth letter is not a claim in order for it to be a claim you have to look at it in the context of indorsement twelve this is lexington's policy and norseman twelve b says we only have forced me and only has to give notice where the control group has knowledge of a claim where horace mann itself has contractual liability that is it is at most a threat of something that might happen in the future but most importantly it actually doesn't have a monetary demand and every case they  it not only is based on law other than it will annoy for the proposition that the one fourteen letter is actually a claim they're all outside of illinois but none of those cases involve something like endorsement twelve indorsement twelve has a condition that says horseman itself has to value a claim of five hundred thousand dollars before it has a reporting obligation and therefore not only is the it's a temporary fourteenth letter as the district court found on summary judgment in two thousand and thirteen not a claim there is no monetary demand it's not to horace mann and the district court decision in evanston says which is a case it was decided under illinois law says that threats of future action do not constitute a claim so the september fourteenth letter is not a claim then counsel a confused in issue there is a difference between whether me and actually provided written notice of the claim and whether horse man provided written notice that the claim was in writing course man absolutely did file a written notice that there was a claim it satisfied the stated conditions of endorsement twelve what lexington wants to do what it reshipping wrote in its policy is an endorsement twelve is that you actually have to provide not knowledge that where is nando's of the claim that you have to have you have to provide written notice that the claim is in writing indorsement twelve doesn't actually say that they want to limit graft a condition on top of indorsement twelve and them on wholly illinois case says that courts cannot graft conditions that sophisticated companies like lexington who write their own policies i don't include next year either not only have they and braff did but clearly they did get written notice that it was that the demand was in writing in the fourteen raise the issue of insufficient notice they raise it for the first time as an affirmative defense to the counter claim horace mann is not required to answer affirmative defenses under federal procedure nor is it required to anticipate such affirmative defenses and so hoarse man was free to point out that the affirmative defense that they raised about insufficient notice was hundred ninety six actually quotes the mclaughlin case with approval and it says where the insurance company has actually a notice of the lawsuit receives the necessary information from some other source there is no prejudice to the insurer from the failure of the insurer to give notice of the claim that in other words it extends not just to where there are lawsuits that your pill case extends to notice cases which is exactly what we have docket five one seven at seven fifty seven so the entire quote is those two pages one eighty two and then docket five one seven and seven fifty seven latreille testifies i reviewed the reporting guidelines that is the guidelines that provided inaccurate information in wrong advice she said i reviewed the reporting guidelines that i had been provided re reviewed the notice of circumstance wording as to the disadvantages and these are the guidelines it actually uses the word disadvantages in the erroneous guidelines that are provided of submitting a notice of circumstance and following that substantive subsequent to that conversation the dra withdrawn so she says explicitly that she followed the written guidelines that had been provided by and in withdrawing the counter twenty fourth notice in the guidelines are actually found ninety seven and it actually says that you could lose coverage if you submit a notice or of circumstances so there is no question that the guidelines were incorrect that the instructions on august twentieth twenty third and twenty first were not followed counsel made the statement also the hearing your honor i will finish my sentence and i appreciate it is that they had requested a copy of the underlying complaint and did well the underlying complaint is actually required to file a notice of circumstance if one looks at clause nine it says nothing about filing the underlying complaint moreover on september twenty first