a truck backed out of a parking place and struck a pedestrian but the district court held that was an accident didn't have to be reported and the insurance company which learned of that accidental twenty one in an auto as did the district court and neither defendant point to any such case notice is always required the case law looks to not the notice clause but whether their cue has an excuse a reasonable excuse for not giving notice the factor in this case the the notice clause is clear in the event of an accident you must give us whore or authorized representative brought notice of the action clear no exceptions you know condition no qualification then said the district court changed it the district court made it you have to give us notice of an accident involving bodily injury or property damage but later in the twenty six page memorandum opinion the district court made it notice of an accident involving serious bodily there are five factors five factors were recognized by the illinois supreme language sophistication of the insurers awareness of an action diligence and prejudice we're going to limit a prejudice the fifth factor right now because the illinois supreme court live orsi held prejudice is  factor it's not a determining factor even an insurer the can't prove prejudiced can still have no duty to defend and insured who breached the notice condition language of the policy in the event of an action that you must give us he testified unassailed unequivocally if there is an accident you must report it one was to report it you have a situation like you have here you have late injuries one gets knocked down we learn from her affidavit in response to the motion for summary judgment that four days after the accident she went to see an orthopedic surgeon the same guy who did the hip replacement on her she got knocked down by a truck the same the same affidavit says earlier i had well but carl grumbled owners own business had no training and couldn't in medicine decided she wasn't hurt the e m t said she said she wasn't hurt but my job is to do it to assess not diagnose and there are latent injuries that manifest themselves lawyer greg clark from the state auto testified very often people say they're not hurt at the scene the injury manifests itself in a few days few weeks few months and it's what you don't know that's the problem now the language of the policy is clear but the district court and broke the neck specter is the sophistication of the i'm sure this is a remarkable conclusion by this district judge all due respect is high school graduate several years of community college operation is on contracting this buys insurance for his house his wife is the it is business worker's comp he was smart enough to buy auto insurance because he got a truck that he used in his business the owner operated the business for a number of years as your honor said but the district court felt as a matter of law a matter of law he was unsophisticated that he was a blue eighty times in forty one years i didn't take insurance on law school i'd dare say the most of the lawyers in this room didn't take insurance a lot in law school this fellow was a contrary he didn't take insurance but that's a great big so what i don't think this court is going to tell the insurers in this case we have three of the largest insurers in the united states state farm allstate and country companies that a high school educated driver which some college who runs a business is unsophisticated as a matter of law to recognize that when he backs up it's awkward at street and knocks for the ground calls the police calls an ambulance that he wasn't in an accident that he doesn't have to give notice to an insurance company that was the ruling as a matter of law unsophisticated eight half million licensed drivers in the state i would say corrupt brahmins toward the top of that list because not everybody is law school trained or is a doctor or an architect or an engineer or a judge they're ordinary people with ordinary jobs and a lot of teenagers but no no knock somebody down with a car or a truck you are in an accident plain and simple and if the policy says you have to give notice of an accident was no lesion for karl rama because he's unsophisticated as a matter of law to think he was in an accident that is a remarkable conclusion and why because the district court said it was low impact low speed and the only visible injuries were scrapes the just report recognized injuries record and that she was knocked down but help but she said she was ok refused to be taken by ambulance t read his column but it didn't matter because he was unsophisticated as a matter of law in the world of insurance and commerce now carl testified his deposition be oppression i had her abramoff said she wasn't hurt later in his deposition he said she wasn't seriously hurt but he recognize he was in an accident no reasonable person would say that unintentionally striking the pedestrian with the truck is not an accident and when you have an obligation under a contract to give notice of an accident whether or not it may lead to a claim whether or not that serious injury whether or not it's any injury the the obligation under the contract is to  cases which have excused notice have done so where the insured had no idea that there was an accident because the insurer did not participate in the action that would be the commercial and commercial univers air space from this court in two thousand and one it's the barrington case from the illinois supreme court that the defendants just qualm onto without understanding what it said it said if you didn't participate in the accident you have no reason to give this was an auto accident carol brown one of the drivers he owned the truck he knocked her down he participated that if this court is going to tell the motoring public and the insurers of the state of illinois that if you're in an accident make it a he put his insurance company on notice so he knew what to do with the soup paper he didn't know what to do with what led to the ship that is put the insurance company on notice this case is the a good to me of why notice needs to be given clarke testified again uncontroverted that had we known of this accident we would have opened a file we would have contacted the witness we would have contacted this menar we would have inquired about the injury we didn't wonder about the accident we would have investigated we would have a value weighted we would have gotten medical records we would have established a report with the claimant instead they found out about it twenty two months later when it was in suit that's the reason why deposition mr clarke was probably asked five different times five different ways creative defense counsel do you have an opinion whether speaker whether this was a report of all he kept saying yes it was an accident he had to report it this this case we would suggest to the court for each of the factors where the district court found in favor of the insured that it was erroneous and it warrants reversal and we asked this court to reverse for the reason state to state auto involving the accident of september sixth two thousand and thirteen was reasonable when applying the firefighters adopted by the almost supreme court in the yorkville case we suggest to the court that it was reasonable and that the decision of while i intend to address all five factors of your fil i would like to focus in this article primarily on factors pertaining to the specific language in the policy language pertaining to notice the sophistication of carl brummet and also with regard to the issue of prejudice as to the specific language in the policy what counsel failed to address was that there is a linkage between paragraph two and section four of the policy it doesn't say merely in the event an accident gives notice it states specifically we have no duty to provide coverage under this policy unless you give notice of an act prompt notice of an accident the notice requirement is linked there's a specific nexus in terms of what kind of coverage is available that requires notice in order to do terminate that you have to do more than isolate this one sentence in the policy you have to look at section two that refers to coverage under coverage it says we will pay damages that an insured has to pay because of bodily injury resulting from an accident there's a nexus there between the two as opposed to this vacuum that he's suggesting that under any and all circumstances you have to give notice this policy also contains section five pertaining to definitions definitions in this policy in the cape that an accident can include conditions revolving resulting in bodily injury the law in illinois that you have to look at the policy as a whole and not these isolated snippets as counsel is suggesting and that's why in this case the district court looked at the policy not only with regard to reporting all accidents but what is the coverage there that's bodily injury in property damage and that necessarily involves what was the impression that this insured half the time whether or not there was a bodily injury and his mind that a reasonably prudent person what i understand needs to be reported who first o understand at the time that there was a bodily injury or because of the facts the accident she wasn't knocked down and her deposition she said that she was taft and fell the only or injury she did receive was a scrape on the arm they put a bandage job they checked her knee and gave her an ice pack and that was it they asked her specifically do you want to go to the hospital no do you want to go by ambulance no she specifically told crawl promise ok she never told him once i'm never intending to file a claim against you at all the police officer who investigated the case himself testified that he determined it was a non capacitated an injury in his report all of the facts indicate that carl didn't even know he tapped this woman this is unlikely counsel suggesting that somehow he suddenly not this woman down with a big truck it was a very very minor incident and at that time he did not have a reason to know he was backing up out of a parking spot if that w site and she clearly refused any further treatment specifically told him i'm all right there was snow the police officer as i said himself he did not consider this to be a serious injury or he would have reported that in this police report so i don't think that the council's argument that the policy in question requires every accident to be reported the supreme court put limits on that in the barrington case and it said an insured is not root are required to report every it's only required to report those injuries which a reasonable person would understand but likely lead to a claim and in this instance with all the facts presented at that time he did not consider it necessary to report  where did he call an ambulance he thought at the time it was and when she said she wasn't with me to get the time that words he didn't even know he didn't even know we struck or the first thought was minus perhaps she did she refused it she decided that she didn't need an ambulance and none was ever called and should refuse to go so he ended up giving notice when he had a reason to know that there was a claim filed against them and that was twenty one months later when she followed the losses it is correct that once the lawsuit was filed he understood at that time i now have notice of the claim within one day he gave it to his agent and within two days states also had it in its in order to defend the case so the case was not requiring to report any and all accidents if they had all of one of that kind of a requirement of its insurers they could have stopped in section two under the conditions and merely say in the event of accident prompt notices required it didn't do that it said we're not going to provide coverage unless you give this notice at length coverage into the whole concept of notice and that's what they're trying to avoid and say under any circumstance simply not the law with regard to the sophistication issue the courts in illinois focus primarily on whether there's experience of the insured with claims not merely their education not whether they own business there's no question called ramat never had any experience with bodily injury claims even if you procure different types of policies as he said he did when he was nineteen years old he had an accident his parents handled an auto claim he had nothing to do with it better he insurance is not a wreck you understood the reason that the courts tend to find lawyers doctors insurance agents and sophisticated is because this is something they're very familiar with and bodily injury claims they find corporations banks governmental entities sophisticated because they retain lawyers to represent them in these matters you have but you can't say guys that the reporting out has his own business  years is a construction worker can so and so he did that then apparently he gained some more skills and starts his own business hires two people and he's does this for four years the truck is insured and and  he's got worker's comp his wife has homeowner's which means at least with him lisa where the insurance and he knows he's got an insurance agent because he called him or her immediately so obviously over the years he's been renu ing and checking to see how much he needs to get two employees maybe you know the answer there were either of those employees covered under as as possible drivers at this truck or another vehicle he had employees it judges workers comp and i just curious maybe you don't know the answer of whether or not in that auto truck policy would ever go through generally if you have employees that are driving a vehicle on behalf of the your business they're going to be insured covered i would agree and i you know i don't know where those were not maybe you don't know if you know specifically it just the cases that address the issue of sophistication they talk about their marriage fact that somebody procures policies are paying premiums doesn't necessarily make them a sophisticated lot more sophisticated than somebody like you from your comp where this case he was a business owner as well it was a paintball business and along case it was a dram shop owner the mere fact or a businessman the courts in those cases didn't say that they're necessarily sophisticated because they were also not familiar with and the insurance industry and they said in his mind's unsophisticated mind he didn't appreciate in fact in the burthen case that girl was injured treated by a doctor at the scene sent by ambulance to a hospital and they still said because of his own sophistication there's an indication that he wasn't appreciating that claim whatever be brought against him it was a long long time before they're even happened you know the doctor on site works dry out and did all that but i mean that's that's unfortunate but  what is their appreciation or experience with claims in order to give notice correct and in those case there were delayed notice and the courts found that it was excusable because of this lack of sophistication in those matters just like to was an accident and all the factors in this case show that he did not likely believe that there would be want to give them that's in comparison the cases in the county so i think i'll have to ask you to summarize now the second like you finish up the comparison being that there are cases involving stabbings hit and run accidents much much more serious than this type of attacks over a lady was knocked down and refused to go boy i am going to the hospital specifically indicated to him that i was not injured nineteenth this year from cause now played into this litigation what's before the court in this case is the interpretation of motor vehicle accident insurance policy issued by state farm to the his company to determine if there was coverage far an accident that occurred on september thirteenth of september six nineteen twenty thirteen when dolores was walking across the parking of the policy that the court is being asked to construe as first of all what is a covered accident under the policy and secondly the application of that wee quire moment of notice of accident the failure of which could result in excusing coverage under the policy under eleanor law the court's required to consider plausibility of that definition assume for purposes of my argument that karl rove had been hurt in this accident as well and was rendered unconscious for twenty one months before he reported the accident would provision a responsibility element and a and these cases involving the notice requirement and i will go policies the court has to consider all the facts and circumstances in the occurrence and determine what are the insured what was reasonable would reasonably expect that a claim could result from an the supreme court as you heard from both parties before me has developed a five factor analysis to be applied in determining whether notice in a particular case is  proper first a look at the specific language and the notice of accident provision and policy then they consider the sophistication of the and sure it matters of insurance and commerce then they determine what are the insured under the circumstances could reasonably expect a claim to be filed and assuming they do find that then determine whether the insured was diligence diligent in determining whether his contract and insurance covered that claim and lastly they consider whether the insurers was prejudiced by late notice of the claim the district court in this case found all five factors in favor of the insured based on the evidence presented in the record i submit that this  reach the same conclusion if you imply illinois law to the facts in this case so we're asking the court to affirm the decision of the district court action should also point out that there is no clear definition of either accidental or proper notice and the insurance policy appreciate your indulgence and consideration thank you for your questions and i don't think so mr to my office i hope among the eight and a half million lights drivers in illinois none with actual claim experience are driving when i have to cross dearborn clark lascelle in wells to get to my office it be scary link assuming that brahman is more sophisticated than a defender than berman yes what would constitute a licensed driver and who has to be insured in illinois for it is unsophisticated assuming you know you have to take a reading test for your initial in a vision test and then whatever the other requirements are so could you give me an example of the unsophisticated i really can't and for the reason just one that i can't is the concept of sophistication has been used by the illinois supreme court and the oem unlike reviewing courts in connection which she g l policies policies involving different types of claims auto policies as far as insurance policies go or the simplest policies noticed one insurance company in that case western merican insured a bank the president of the bank asked his insurance agent on a saturday morning when the insurance agent was in there making the deposit we've been sued it's a defamation case are we covered the agent said probably not so they didn't give notice to west american for twenty seven much interesting that same agent said on the board of directors of the bank where they discussed the lawsuit and the ownership report felt there was an excuse for not giving notice because the agent said it may not be cover but they actually gave notice to the insurance company through the agent was on the bank's board and was aware of the lawsuit so an auto setting so there's anyone who enough to buy the policy which is mandatory is sophisticated enough to know that if you knock somebody down you are in an accident thank