provide this court with two main avenues to reverse the trial for it and find that there was coverage for dr geisler the first is under the traditional duty to defend analysis and cognizant of the fact that any policy has a provision that says that there they have the insurance company at the right but not the obligation to provide a defense however the specific policy language at issue here which is in a section or a of the policy so the insurance company relied on section for a third section or a portal to say but there was no defense obligation this mcguire let me interrupt you just so i can clear up a couple factual issues because if it isn't a question of lies much of it they're also factual issues that we're certain that might impinge upon our decision and that concern  reimbursement of the defense funds why how how does that insurance company respond well i think i don't believe it was waiver because i believe that but how does an insurance company respond in the absence of a of a demand  purported sure that you owe me this one and they pay and they never give sure well we waited till after the last of the underlying lawsuit was resolved and that that point we knew what the damages had banned from what he had spent to pay for his own defense attorney in the underlying lawsuit so we didn't actually know what the damages were going to be and still they are you saying that as of yet at some point down the line such a demand was we had we were named in the law a kind of last we also had an arbitration ending that was seeking terminations as to what this policy did cover and didn't cover and we had made a claim there against for the potential coverage so i think that given their agency relationship with the insurance company they certainly you know that the fact that we had incurred bills and were continuing to incur bills was known both to c n n as agent and then also to and that wasn't until the final where at least in two thousand and eleven yeah but that's not part of the record of this case only to the extent that the interim award was made part of a right of the record when it churns where the insurance issues for a coverage in addition to any and therefore this is not like a policy that says in under no circumstances will depends possibly pay for the contrary it says defense costs will be paid even in those instances where that the insurance company chooses not to involve itself in the bands but you have to wait until the self insured pension is exhausted so that's so that's so that defense cost would have to i don't know how it reaches two point five billion whatever that figure was satisfied yes two points on that ship the first one being that because here there is no way to tell from the base of the policy whether the self assured retention had been exhausted at any point i think under the  traditional duty to defend analysis where you're limited to the four corners of the complaint and four corners of the policy that necessarily takes into account outside information as to what the self insured pension is it at any point and i'll get to that as far as the full duty to defend the analysis the second point however is just under straight indemnity analysis that section four a states that we will pay the company will pay the curd by an insured once that self insured pension is in fact exhausted and the record in this case is that the self insured retention was exhausted in december of two thousand and eight so even putting aside yes so you don't have a go claimant counsel but i think we have under totality of circumstances there are two issues with regard to towns number one was the insurance company and or the third party administrator and or c n n but my client and say listen we're not getting paid we're going to withdraw from representing you in this medical malpractise case so it really strange that attorney client relationship and there is no  action for a straight if the attorney client relationship if there's a case i'd like to go but i don't have a case that i can point you to but i think again under the totality of the circumstances there has to be some justification why they waited eighteen months he did incur some attorneys fees for myself primarily in it trying to get the insurance company to respond to our requests assessing the record of this case yes it is and how much was it it violation of the statute and good because a bit of reasonable de lay under that statute but you didn't show any damage and that was one of the points that we tried to clarify with the when we asked for leave to file the second about a complaint thereafter that i believe that they were paid completely in about june of two thousand and nine so six to seven months after the exhaustion it was a violation for the insurance company to here i think was dr geiser and his attorneys had no idea what the what was going on behind the scenes of this policy and the relationship between the practice group and once you find out that that's what's going on i does that make it on attention the money was supposed to have been paid to the insurance company to begin with they should have had to move them along so the two point five should have been in there already it should have been in there already there shouldn't a bet of this type of delay right so allow this so  so again i think under the traditional duty to find analysis there's you know there should have been deemed in a stopper on march twenty ninth of two thousand and four when the church company received a written notice from the that time it is undisputed that the endorsement well which purported to retroactively terminate coverage effective to december thirty first of two thousand and three was not part of the policy so what we have here is a situation where all of the kids conditions proceeding to coverage were in place when the insurance company received that that claim while aqaba in march of two thousand and four had done what it was supposed to do  insured with pension was in terms of exhaustion so they gave the potentiality for coverage at that point so then moving along that triggered the insurance company's obligation to file  y judgment action and get any and all of the policy defenses that it raised in defeat in the trial court below result i mean me ask you this question regarding the difference between the insurance company until at the earliest december fifteenth two thousand and eight because until then the funds had been exhausted and the insurance company doesn't do it why why isn't doesn't that decide the reasonable but again the insurance company allowed the practice to get so far behind on its payments that it wasn't wanted there should have been no reason in this position any delay so well here so that you know here's an issue that this is the issue we've got a self insured prevention out there that's not good if he had a public company doing the adjusting in the public company is keeping to the records on all the things he cares company doesn't even get to know about it administrator long before several months before we filed suit saying can you just give me a sense of what is left on this self insured attention how could they give you a sense when they would have a clue even a ballpark even a this is why we can't determine this right now and bring in all of these other what you know what they later raised as policy defenses several years later you know i think the case law is clear they are protected if they do that a endorsement they did in september of two thousand and four that reported to terminate coverage back to the december of two thousand and three but this was a claims made policy it claims of a policy if the man is terminated from his case but here the facts of record were that in december of two thousand and three the insurer the practice group exercised an unlimited period extent reporting period and dorsey they covered all of the positions that were on the policy and endorsement one going back to policy inception dr geiser was part of that schedule of medical insurance but he wasn't terminated at that point he would use terminated in december of two thousand and three right at the same time that they exercise this extended reporting period option to do so but then that in march of two thousand and four so but six months there were months later they got written notice from the general counsel for the practice types of letters but under condition k of the policy no agreements as to any anything involving coverage that was not incorporated into the policy was affected and that makes perfect sense because  insurance companies will use that provision to their benefit all the time say we're not going to have insurance come in and say we had some or all agreement with the agent or somebody else that was he was terrible day did he write a letter to the interest company and say hey you know i would like to have my coverage made aware of all of these things while this was going on most of what this is happening here is being looked at with the benefit of hindsight but when he was terminated you know he originally read received a letter from his broker saying that he was included on that policy and he received a letter saying that he wasn't put on that policy and then he tried to get insurance but the try to get as an ist neurosurgeon to try to get single person coverage in cook county at that time you know it was very difficult if not impossible so again i think you know there are two routes to finding coverage for a while because of the duty to defend analysis doesn't require this court to stray from any of that longstanding precedent and it is i think the reasonable in the prayer for relief one of the things the plaintiff prayed for was vacating the judgment but the case law is clear that you don't look to the title of a motion and i would submit that it follows that you don't look to the prayer for relief but you look for what is set forth in the motion and what is set forth in action is requesting to amend the complaint i won't here here's the here's the video that difficulty i mean you know a motion for new trial should be what might be referred to as a critical stage of the proceedings it should be fairly pro forma and if a motion says we want you to vacate you are decision you know let's go on to the merits of the issues you know in the should we know should we should we should we do then should we might we should week consider the critical stage and so that we have to examine everything that's on the motion determine whether or not it truly is a post from ok i think you should and i think and that we're not going to look at the title and we're not going to look at the prayer and unless you well make an allegation in the body we're not going to treat it as a post from motion that we would like to see something right there our opinions to say that of faith there are opinions that say that in the end there are opinions that are very closely on point the marsh opinion and the shock a subpoena and cited in our brief are both cases that stand for the proposition that emotion to amend pleadings is not a proper post from a motion that holds the thirty days under rule three zero three so what happens in a situation where a party wants to wants to attack the judgment of the court i'm serious wrong out right it why it why should why should a motion to amend all of a sudden be treated as if it really isn't challenging the outcome i think the distinction is that at what's in the substance of the motion so to that extent you are asking us to extend the law a little for you what you want the prayer for relief thrown in with the title for a motion is being in consequential as to whether or not it qualifies as was from i think your better arguments no in that case i'll move on to the merits up but there's there's three undisputed facts that cannot be understated here first everest has no duty to defend they have the right to defend but they do not have the duty to defend second the essay are was not exhausted and tell december fifteenth two thousand and eight and the import of that is that everest had no contractual obligation until that time let me briefly interrupt you and go back to the first point yes a right to defend but not a duty to correct does that wipe away the analysis that the doctor's asking us to engage on the duty to defend i believe it does i pay the contract the contract three hundred as contract i think all of the case is subject to that that duty to defend analysis that exists in so many  completely agree all of the all of the notion of all of the doctrine such as a stop all an actual notice things that you would distill from the long line of cases concerning the duty to defend all of those cases are cases where the policy has a duty to defend third and finally and maybe most significantly so even if everest loses on all of the coverage issues raised in this matter there are no damages and let me turn to to the specifics that that the panel has raised about the chronology and what's in the record there is nothing in the record as to lolla caught up showing any defense costs any defense costs invoices submitted see the event the way the amended complaint attempts to actually the amended complaint sets forth allegations of damages concerning attorney's fees in both cases but none of that evidence is new evidence all of that evidence or was evidence that was available to the plaintiff at the initial stage of the summary judgment process and plaintiff never set forth any information there were no affidavit submitted the only evidence in the record concerning sort of the accounting of attorney's fees and costs is the affidavit of westerns cl slee when the s i r was exhausted on december fifteenth two thousand eight hundred balance of outstanding defense costs was paid i believe within two weeks and the matter was settled indemnity costs were paid and then the balance of defense costs was paid upon the request of everest for those outstanding invoices in order to wrap the thing up that was paid in june and so i'd like to dispel the notion that even after the s l a are was exhausted that there was any delay and payment payment was made promptly upon the invoices being provided to the insurance company with respect to case and the hell and gone ok's are both cases that sort of touch upon the issue of there needing to be some measure of damages before you can set forth a claim under section one fifty five both of those cases involve instances where insurance companies refused to pay a claim and they sort of both involved extended processes of investigation and and finally only after the bad faith claim was filed and the and seek damages were paid the issue in those cases involved whether it's ok for an insurance company to pay those costs but i don't think we do i don't think we ever get there i think that i think that certainly most of the bad face cases talk about the need for there to be a bona fide dispute before there can be before you even meet the threshold of asserting a bad face claim i don't believe that these disputes were bona fide and so i hesitate to call them bona fide disputes but there certainly was a dispute there certainly was an issue i suppose as to who was obligated to pay costs at what time i would suggest until the s i was exhausted it was not everest obligation to pay anything they had no contractual obligation to the doctor to anyone in these claims or any other claims until that as i was exhausted and when the sai was exhausted the record reflects that the costs were paid within two weeks and it's not as if arbitration decision and that was included in the record in our summary judgment briefing for the purposes of further demonstrating that as of january one two thousand plaintiff knew that he was without coverage under the everest policy because the of attrition decision itself is one of the multiple pieces of evidence that shows that that's the that's the the arbitrator stated in his decision that the plaintiff was without claims made coverage after january one two thousand and four under this policy and he was obligated to go out and get his own coverage i believe that's the only part of the arbitration proceeding that is part of the record i believe it was that this case i don't think it has any effect on this case at all the only possible effect that it could have well i hesitate to even say this the practice was originally a party to this litigation they were dismissed from this litigation so that the arbitration could be done i think on both but certainly as to the defense cost payments and who's obligation it was to pay those defense costs i think it was the practices obligation to pay the costs up until the point the essay are was was exhausted and so in answer to your question that the only way the only way the arbitration could have any impact on this documents there in the record reflect that the doctor was notified by telephone the doctor was notified by facsimile and by e mail that he was no longer covered under the policy effective january first two thousand and four there was a statement to play this argument that he had received information to the contrary and as you will see it page seventy seven or there is a reference to that and what that says is we're sorry the certificate that was issued to you is not valid you don't have coverage effective effect of january first two thousand and four the reason that the doctor didn't have coverage is that he was removed from the policy as a medical insured and the claims made provision in conjunction with the definition of medical insured require that the that a physician be a named and should not a named insured a medical insured indorsed to the policy both at the time the claim is made and at the time of the loss events and here we are we may have run we don't have the other there was no request to extend coverage not that i'm aware of it's not it's certainly not in the record i would simply conclude by returning to the the motion that was probably properly before the trial court the motion to amend the pleadings after summary judgment the case law is clear that such a motion is held to a higher standard than amending pleadings in other instances it's held to a standard the ticky into a motion for reconsideration it requires either new evidence changes in the law or errors an application there was no new evidence here anything that was attempted to be proffered could have been offered the first time around and so ever properly denied the motion unless there are any other questions everest's in western respectfully request that this court either dismissed the place its appeal for lack of jurisdiction or from the trap court's july thirteenth denial of the plaintiff's motion for summary the counsel relied on stating that there is no duty to defend again i would have cited that look at or a carefully i think it does distinguish this from other types of cases and i think the traditional duty to defend analysis does apply briefly with regard to the arbitration the practice group actually initiated that arbitration and sought to have dr geissler cover all of its defense c dr guy sort of have to pay its these and i think the law does not require people to do useless things and for lawyers to do useless things just submitted to man for payment knowing that we're getting sued by them to try to have it lawsuit was about is to say that there was coverage here and they should have reimbursed him for that one hundred eighteen thousand dollars that he has actually out of pocket and in fact because the arbitration came down my client actually had to pay some for four hundred seventy six thousand dollars that he was removed from that in september of of two thousand and four five months after the insurance company had received notice of the law a pattern lawsuit my position on that is i think we're looking at the mirror image of the well known you know known loss doctrine if it is improper for an insured to try to seek coverage for a known was because it sure shouldn't be available for i think the flip side is true as well that an insurance company and its self insured entity that had a two point five million self insured retention should not be able after they've received notice of this claim that falls squarely within the policy as it was passed through did on the day they received the notice should now and should not be allowed to then several months later by changing the dates on the piece of paper the effective dates cancel under the duty to defend and now are actually under any coverage analysis those documents that they gave on those conversations that they said they had those cannot be you know if they're not in front of the court they're not part of the po to determine whether on the date the claim was tendered there was a coverage obligation because they're all extrinsic and that's right on condition k of the policy say we won't consider anything outside the four corners so ultimately i think the coverage