speak up the microphones here do not have a fiver just for recording so keep your voice of so we can all he he pleaded the counts against a b m and then be separately totally distinct counts that case went to trial the jury found in favor of the tranny finding eighteen percent charged against a tra and b was found to be responsible for fifty three point three percent and my client a b m was found responsible to the extent of twenty eight point seven percent  janitorial company and the building owner the janitorial company my client agreed to indemnify him be for certain limited risks related to the janitorial company's work on the premises various language differences real trillion dollar cents and the contract and that's what we do but and you say it's their coverage people is this really  case there's not an insurance company as a party that's true so how is it that this isn't simply a pure contract case relating to the service contract agreement as opposed to insurance coverage a case where there's no sense that the insurance company ace is not a party to the litigation how can a court do to cait the duties and responsibilities of their share of an entity that's not a party to the case  exhausted so unless there's an aggregate i believe the oppose of one million dollars self insured retention rates isn't part of it and that's why the parties never try to bring a man so if the verdict kept on higher we might be in that situation yeah we might have found ourselves in that situation  within the self assured retention which is governed by the same terms of policy but really got probably gets to a technical point there that nobody really needs to reach i think the broader question to use is is in b s liability attributable or derivative of a b s liability the burden on this falls on m b and be someone who's seeking to recover under these ind course of things is it turns out m b doesn't even try to justify the particular rationale but it's kind of a moot point as the standard of review was to no avail in the briefs there's upset a there are no allegations of vicarious liability there's nothing in the complaint that says that m b is going to be liable because e b m messed up nothing like that the allegations are almost exclusively premises liability sorts of allegations now failed to do they didn't want to add to their burden of proof right i mean why add another issue to the case if they don't have to admit that there's going to be coverage for the plaintiff either way so that right now i say well i think it's even brought the segment in how they are separating these kind of allegations the answer to n b c s argument and to the trial judges argument that well detroit he could've pla insured type issues in a similar scenario work hypothetically maybe a plaintiff could have played something else that would have triggered the additional insured coverage but he did and this courts that we have to focus on the language of the complaint so our duty to defend simple that's right there in the briefs unfortunately but all this court has to do is look at those allegations and that's the answer moving to the duty to indemnify issue thirty two and then the five doesn't want to the allegations but looks to the actual findings against the parties here so we we do have a source here to keep the trainee case was tried we have to prove it so the question again turned phrased in terms of something a b m did or failed to do it beyond the janitor company comes in with the the lower percentage of a fault and the building owner as you might expect comes in with something about double that he said janitors go up on the rough no i mean we're janitors people that would go up there with some tar and try to repair the leaks of their you know they have any responsibility at all when these repeated leaks would come out that you know pretty much everybody in chicago has ever gone through that building have seen you know from anywhere people sat up stairs you know that word but the leaks have gone on for more than the term of this contract and you've had this same contract for what eleven years yeah a lot of the leaks have been present through different iterations of the same contractor different country periods i don't think that's strictly a part of this record well it came out in the trial i guess  is a little different my question is if you knew that there were these leaks when the janitorial maintenance company signed up for the new version of the contract and they still hadn't been fixed and you were going to be responsible for fixing them because  never been responsible for fixing the leaks why isn't there some language in this contract that says oh but we're not responsible for those leaks it's a it was a i'm never serious responsibility for fixing the roof but you did assume responsibility for putting down slick proof proof mats and warnings as cones and things and mopping up whenever there were leaks were water were slush or whatever tracked in from the outside this happened in december we can expect that it was wet outside the home again that want to take it since here is what the trial was about and that we've in this case we've never gotten into the extent of the requirement that where there is water you put down man's and warnings and redirect traffic that was the janitorial company's job i'm not sure that that's right but i defer to the the contract on that contract itself is some way void and being against public policy no no no i don't we're getting this inquest is a kind of go outside this record we were putting provisions in the contract anticipating leaks from the roof because it's the fact of matter even have any it was a take it or leave it contract but i don't ask the court to consider that in support of our position with respect to the duty to assume that the building owner local building owners liability is based on what a b s did or failed to do and it's a fine argument hypothetically but there's absolutely nothing in the record to support th b s liability it's fifty whatever percent was in any way based on the operations the contractual work of a b s is that forfeited by them in your judgment as they did not submit a special interactive story that would tested that issue in the fact yes your honor it's clearly their burden and this issue that's one way that they could have actually in fact could've been probably no appeal if they would have submitted specially derogatory and gotten an groups forty six was intended to be on the policy at the outset and contradicted by any other evidence in the case literally all of the evidence in the case reflects that forty six was supposed to have been on policy but it wasn't and that's reality judge panteley if nothing else let us go back and try to reformation why and i don't think we need to because literally all of the evidence supports reformation and because while forty six because reformation because all of the evidence in the record goes to support reformation but it's probably an academic question because even if you follow n b c s theory that indorsement eight govern is this even hundred or eight there's no duty to defend it because you look at the allegations of complaint no duty to indemnify because you look at the findings of the jury so they really can't support the burden under eight or forty six or the service contract indorsement forty six and under the service contract or agreement and that leads me to my first point which was which is somewhat procedural there is a suggestion in a b m brief they add in analyzing the the coverage issue in the duty to defend issue but the court cannot go beyond the four corners of the complaint and cannot look at the service contract or agreement and i believe that both a trial court in this court may do so and has to do so it is true in this case as framed by a b m s pleading is whether or not the insurance policy provides coverage of the two endorsements that are already issue eight and forty six were through to the underlying contract and they only give my client and be insured status if there is some requirement in the underlying contract to name my client as an additional insured that necessitates looking at the service point concede that the service contract or agreement is in essence maintenance agreement well i agree it is it's both janitorial and maintenance and in this case because of the  arising out of work language that appears in indorsement eight indorsement forty six in the indemnification provision of the service contract or agreement we have to look at what does that mean arising out of the work what's the word it's entirely proper for this court to look at what how the contract defines the work council suggested that well it's not in our record i agree that there's not a lot a factual data on there is some facts on this there were depositions that were taken on this but it's it's defined in the contract and i think judge transfer you were right the record does reflect that and it's not disputed their briefs do not dispute that a b m was to try what floors put the little signs on put the don't think that's in dispute that's that's within the contract document there actually is some deposition testimony in the record on the map i don't believe there's a dispute that williams contractual scope of baby and work is to mop up what floors and that's important as we define or look at what the arising out of language means in the underlying case you have a general verdict in the fall of this of course and in the percentages that you folks are quite familiar with it seems to me that just looking janitorial service maybe they were a little slow to the drive getting the man stone so there would seem to you know there were three parties they each had some negligence in the jury character up accordingly with your client getting the lion's share of it because you have the most notice of the ongoing problems a fair there's no dispute that my client was tagged with the lion's share of the of the fault that that's undisputed but what's significant about their actually not significant about that is that the coverage issue here this is not about proximate cause this is not about who was most to fall what was the proximate cause of the injury it's a but for analysis the arising out of language that appears in indorsement eight indorsement forty six in the underlying contract mopping up the what floor none of us would be here sure a d m to make the same argument they can say yeah but but for m b not fixing the roof we would not be here either and that's what this underlying contract is about the parties a b m and then be acknowledged that there might be injury that is sustained when we're both to fold and what are we going to do and you're saying into this underlying contract that a b m is read to says with respect to contracts or agreements for the maintenance of a building every competent promise or green had to intend to fire hold harmless another person for that person's own negligence is more it is against public policy was not a maintenance contract for the structural integrity of the building the building wasn't on the construction they were not retained to maintain the structural integrity of the building it to me that's it's it's not just affected a contract  water that's coming in through the roof they're maintaining it right area putting out warning indications and suffering i believe that regardless of the cause of what floors they would be responsible for for keeping the floors dry so whether it's nina's underline complaint allege separate causes of action against a b m and against my client and he didn't allege a vicarious liability basis to hold my client liable that was relevant in the rules act because of the insurance coverage and rose that was quite a bit different than the insurance coverage here in rhode sachs the additional insured indorsement said such person organization is an additional insured only with respect to ride over the incurred solely as a result of some act o omission of the named insured and not for its own independent negligence or statutory violation so it was a very limited coverage it was basically coverage for vicarious liability which necessitated this court looking at the  complaint to see if there were any facts that would support a finding a vicarious liability we don't have bad language so it's irrelevant to see whether twining pled any facts that would give rise to vicarious liability and we can see that he did not he did state his accounts independently of each other we can see that but it's not relevant because we have a different coverage from our coverage granted indorse made him forty six is  indorsement eight forty six can look at the underlying contract to define the work as including mopping up a wet floor clearly mopping up the right floor was in the scope of the work of a b m and but  to mop up the wet floor none of us would be here that satisfies the but for test that satisfies the arising of the language even though the twenty did not humors arising out of the in his complaint that determination can be made based on the facts that he alleged and that's the restrainer that's relevant under endorsement eight were indorsement forty six now there is a side issue with respect to endorsement forty six counsel was kind enough to say that he was going to make the first argument that he'd give us the benefit of the doubt that only indorsement eight applied and i'm going to do the same thing now extend the courtesy the other way and say all right let's say he's right and we enjoyed him forty six is the operative endorsement the result doesn't change we still have the arising out of the language and but for analysis because that language is indorsement forty six councils right the happy to address it if the court would like supplemental pers it has not been addressed and it has not been addressed and i am all honesty i can't speak intelligently on it because it just it was not addressed i don't think the court below or the parties consider this case to fall within th negligence of the name insured simply the work that they perform and again we've i think we all agree that the work includes mopping up a wet floor so we believe that even under endorsement forty six if we have to work at where it specifically says that my client's right to them if occasion under the section shall not be impaired or diminished by any of its own acts bet's even the expressive language that was not present in the side issue in all of this is whether or not we have to get that far because doesn't or some forty six even apply and you only have to you really only get to the blends analysis by way of endorsement forty six again we think it applies to the ones analysis i do think there's a record of them asking for it but they didn't get it when that policy was issued they were still negotiating it they accepted the policy is issued they they paid the premium they took the policy with endorsement eight they concede indorsement eight was on the polic issued they didn't reject the policy because it didn't have forty six they were still negotiating it and that often happens in an insurance situation that's what indorsement is indorsements or something that are issued after the fact that but change some term of the policy they were still a go shading this policy for a long after it's issuance and the record is clear was on april twenty sixth two thousand and five when some underwriter over it ace finally said we approve your request to change eight and to issue forty six there was never any agreement before that there were there was no mutual mistake they didn't have a meeting of the minds they didn't have an agreement until april twenty sixth two thousand and five and then it was issued it was issued there is nothing to reform it tori to the jury to test that issue to determine whether and that that in fact was the case or if it if they were lacking and before fifty three percent because they never fixed the rough i don't believe so because again this is not of my kid out of the coverage here is not of it is not limited by curious liability under these endorsements unlike the endorsement of rose that we don't have to prove that we were found liable by virtue of vicarious liability we have different language than rolls back we'll be able to prove is that right billy rose out of their work and it's a very simple standard it's but for but for their failure amount that the four none of us would be here they could have done of the other way they didn't and so the percentages don't matter right thanks out i'm not so sure it's right but it doesn't help it just if the the bottom line it doesn't help whether it's a buckhorn test or any other kind of test he still speculating as to what the failure to mop up the water we wouldn't be here also not an absolute lie dilla the situation i mean he would be right maybe if he said that but for a b m's negligent failure to mop up the water but in the underlying case there's all kinds of evidence about how long as the water there could even have a chance to get out there or mop it up it's one of those days where the water is just cascading down so it's not as simple as  you can't hypothesize what the plaintiff might have pled you have to look to the right on the reformation question i think it's important to recall that we submitted  those four affidavits only the other three remain unscathed on this appeal he doesn't challenge so there's no evidence to contradict them and he doesn't attack the credibility or substance of those and so you have one challenge one rebutted affidavits of the insurer insured and the broker all same we had this indorsement on our prior policies we expected it to be on this policy we gave  certificate of insurance containing the same language before the inception of the policy they knew it was going to be on there and the insured the insurer in the broker only parties who are involved with issuing the policy all agree it should have been  it's undisputed that forty six was not physically on the policy but when we talk about reformation we're talking about a it's a known protonix situation it was intended to have been on the policy at its inception and that's what we're asking judge panteley to rule it's another thing we didn't get into but if it's something we haven't argued in the case that there is evidence in the underlying trial in fact that that m b knew about this for a long time it's tantamount the judgment but it's it just hasn't been developed i don't think enough on this record it's certainly true i think as a matter of public policy illinois would not allow a party to indemnify itself for its own intentional conduct