soft convened i think if you want the coolest sight i get a better view of this list there is no dispute among the parties in this case that the insurers were proceeding by way of equitable subrogation stand in the shoes of pillows community hospital their direct insured under their policies where the disagreement is is whether the claims those insurers have inserted are within the scope of the arbitration clause which is in section six point two one and whether trial court appears to me on reading the decision and hearing the decision implied atemporal limitation to the to the clause another word is that it only applied to disputes about whether a case should be settled while that settlement is pending prior to the actual have to look at this clause and decide what the scope is assuming we think that's an appropriate judicial act correct they don't know review it really doesn't matter what the argument is but i think the argument fleshes out why the three reasons that they have  asserted are wrong i don't see a temporal limitation in the language and one can easily can conceive of circumstances where disputes about a settlement happened after the settlement of concert for example where the hospital is not in fact consulted as it should be head towards the settlement and considerations that enter into the equation looking behind to historical settlement already so  think i'd like to hear your focus i mean i heard of that six point two one because to me it says that when you look at the language he invent about whether to settle and the decision of whether the stuff or not at that stage means that the lawsuit will either continue to go on or will be terminated at that point and that the parties that is the trustees or given the unilateral right under this clause say if we don't sell you we're going to be harming the other participating hospitals there for we the trustees the only ones empowered to do so are going to trigger the right to have this i'll put it in visual quotes impartial arbitration in front of our our own trustees to to basically decide whether the case is going to be settled it's hard for me to understand how this the inability to settle is going to be to the detriment of the participating hospitals and to the case has not been settled and the trustees had decided not to invoke loss and apparently had a record here there was there were disputes or there were representations made at least by royal maybe by both of the companies we should settle this case because the exposure is much greater than five million dollars and there is a possibility to sell it for less and apparently at that point in time although the people you say were injured just in the shoes of  we're saying we have a disagreement with you about whether to settle your trustees decided really not going to invoke this because this type of a dispute apparently in their mind that knack create  place and the issue is no longer the feasibility of any settlement but rather the recuperating billy of layers by the various insurers who rational universe who were involved in drafting the various provisions and we were now to give you a chance to speak first of all the trust agreement requires that both the trustees a somebody in the shoes of pay woes is saying we should settle and we don't want to and so don't we have to trigger that that and if that is triggered then there should be an arbitration that's the point they are confined by the agreement between their supper core halo's and church and if they claim if their claim is you should've gone the other way on the settlement you should have done the settlement sooner were asserting this right that right that has to be asserted in arbitration the six twenty one requires the agreement of the trustees and the hospitals and if there is not agreement then the hospital has the right to trigger an arbitration and the trust has a say in that too and answer one of the other questions there can be circumstances where the failure to settle in fact endangers the trust assets just like any other lawsuit if you pass up a saddle and that's what they're alleging the exposure there could damage the collective entity and these hospitals pulled their assets for purposes of self insurance they gave up the individual right to dictate the terms of settlement the average ration clause is to the benefit of the hospitals to give them a say if they think their interests are being squelch who by the t you saying and the trustees conclude that the inability to concur in the settlement is to the detriment of the participating asked people to not say that the participating ask little or the hospital in question has that same right i think there's a threshold there and it's saying the trustees have to make a determination this is a serious issue that has serious impact the assets of the trust and ought to be arbitrary now at the hospital the carrier speaking or standing in the shoes the ignore the insurance companies say hey wait a minute you have to settle here they then don't exercise their trigger right to have the arbitration the case goes forward the damages done for the other insurance companies and then after the fact you say ok well now you're in the shoes of the oath pillows and so you're stuck coming to us and your head any other rights don't two different theories they are excluded rectitude the church has a direct duty to them that's mcdonald has rejected that in a ruling on december sixteenth two thousand and eight this appeal only concerns their complaints where they allege equitable subrogation or as a matter of law they step into the shoes they can have that arbitration and procedural mechanism in this clause is that it is before an act that ad hoc group of trustees who has to do sherry duty to hear this case and i think where th says a hospital cannot sue for this that and the other thing i don't believe there is such a provision speaking and standing up here there is a built in bias that results from this situation where one side wins and one side loses the hospitals have pulled their assets this claim is resolved in trial or subtle is going to affect all the hospitals and the affected defendant only with respect to the primary retention except of course there is a back door obviously layers of excess on a without rates it well on the combat the pentagon the arrangement and the level of settlement effects how the individual on the level of the sun so there are interdependent it is not unfair for the hospitals as a group to say we're going to priority for preservation of the collective assets over the interests of an individual hospital but allow that individual hospital the right to go through a different group of trustees not the committee that makes the decision and had at how cruel and make a decision is this settlement in the best interest of this total end i don't think that's unfair and that's not unconscionable there certainly was no procedural unconscionably any hospitals entry into this program which involves millions of dollars of potential medical liabilities is obviously carefully thought out when they subscribe to an eighty page trust agreement and there is no evidence introduced in arguably with that how does that create a detriment to the participating hospitals because if your action trips action was wrong at the time you got what you're looking for you got to do the case the way you want to do the case where the committee of trustees that handled that it may be they made a wrong decision maybe they should have tried the case and they would have won that case there is still a dispute about whether that settlement was appropriate or not now ailsa saying speaking with the insurers controlling at all is saying we don't concur in the settlement you did a bad deal you should a settled sooner we wouldn't have gotten hit and our excess carriers would not gotten have our excess policies  settle this case it was not because it was rather than be in the courts and i cannot come up with a different way of formulating it than that and it and if they are suing in that in the shoes of pails they take subject to the laws of subrogation and the question really is if halos were now nor the carriers were now to sue church and say you know when you settled this case for your full limits of five million and that cost us x million dollars in our account we were damaged that x million dollars because you settled you should have tried to case i submit this arbitration clause would cover if the court agrees with that proposition then it  the carrier standing in their shoes have to arbitrate if you disagree with that proposition then there's no arbitration if there is still liability for correct that third on the touch layer of the very well have a voice before but would be without a voice saf for good reason i'm not following the court well it does take place afterwards because let's say that layer is penetrated that care if there is a track to which u s fire holds there is not because the court below holds there's not but if there were a direct duty i do by the excess carriers against church being that's the whole purpose once we secured the no direct duty ruling from judge mcdonald they abandoned the direct duty by filing amended complaints that is certainly only applicable subjugation which we believe walks into the by a demand to the carrier to settle or afterwards if the carrier doesn't and the allegation meeting with the pleading standards is you fail to settle in good faith that is the claim they're making but they're trying to make it standing in the shoes of pales that insurance company then and the insurance make that claim off attack yes so it's not uncommon not uncommon i don't say there's anything wrong with your theory in the sense of a theory but we're looking for what's the legal basis on which they can  that that is if sixty one does apply to yes this particular display six twenty one that is where the cases and the question of interpretation of that of that language but i think there is a settlement dispute here and i do not see language in there that says expressly as the trial court did this only deals with a settlement of pending claims i submit if that's the interpretation then the hospitals easily kind of aid arbitration they simply don't raise the issue till after the it has that town but then then and that is the that reading would confine it only to the settlement prior to consummation no other possible play and that i think is an unreasonable interpretation because of the hospital's going to void arbitration we it could have been drafted that way were sent were confined of course the words they chose it's not to be interpreted against any particular party or could be equally interpreted against them or against chirp there's no evidence who drafted this agreement but since it's an agreement me please the court i will be sharing my time today with mr brass and so plan to take about eight to ten minutes for my points the first one of which is this squirts it need not address waived arbitration by seeking relief on the merits of this claim in the circuit court that was participation in a judicial forum and that was conduct inconsistent with any right to arbitrate it constitutes under illinois law and an abandonment of the right to arbitrate if there was one as you know when royal file that second and landed complaint which is before the settlement of the medical malpractise case or the halo's disagree but here we know that for this equitable segregation claim church wants to force the prejudice and it argued that one of its affirmative defenses should be that the case should be dismissed on an affirmative defense as a matter of law and that it said in its pleading that in the in that way trying to say we want you to dismiss on the merits but if you don't we want to arbitrate for our own trustees is according to her  address that issue i would like now to turn to the scope of the arbitration clause we think that the circuit court of course was correct in all that this particular dispute that  before the court is now out within the scope of that section six point two one of the trust agreement the dispositive law i think here is that the parties to a contract  district said that arbitration may be compelled only upon crystal clear language here we have royal home asserting a cause of action against coin i think we're dealing with apples and oranges but the trust agreement through section four point two only speaks to covered losses which is essentially here a medical malpractise  and section six point two one says church has a duty to put a procedure in place we don't even know here whether it was to arrange for the hospitals and chirps now if you don't can't agree on what the malpractise case is worth then chirps trustees get to decide but here so here chirp isn't a different position it's not an equal at the hospital deciding how much a malpractise case is chair put itself in the place of a primary insurance company and it has legal obligations to act in good faith so the analysis is going to be not just what the claim was worth did you listen to the trial judge did you listen to defense counsel when they were telling you here's what we think the cases were of here's a good time to settle it chirps duties at that in this context are different than just simply trying to persuade halos to subtle need to be on the web because those very same events taking place when you're dealing with that the settling in the future and you're reviewing those very same events and determining the decision but i really only situation where ex post facto disagreement like this someone can very well create a problem for the hospital if that the solution is made incorrectly a problem however that could be hospital would have already taken place well i think i come back to exactly what the circuit court found is that her words were this that arbitration clause just does not fit the case that we have here  company falls with and the provision that makes that arbitration clause only pertains to overprice law but my problem in this morning is whether for man i would like to turn th thank you your honor i think i'd like to start the conversation where you were and that is that section six point two one when you read it simply doesn't apply to the case that's before the court and in free they didn't use they didn't care or hell they didn't call the whole the do is head of texas players they didn't do anything in there is nothing in this record to show that they did and now they want to say you're restricted to something they themselves at the ready to trigger and never did and the fact is that pales has no right even in standing in pillows and hughes we have no right to arbitrate only the trustees have the right to arbitrate this is such a well cited document as is a kin to everything sure does but it shouldn't it doesn't apply here on the facts and shouldn't apply case your other function and the other half you we're chirrup that were you a five million dollar primary carrier you are a claims management service and you mismanaged this case and now have cost us and came to us in december of zero two which by the way there's no evidence that that even occurred but that's the only thing possibly guy could have because that's the only first time that should actually even offered any money in this case and he the trial you missed or those opportunities whether it's you know the hand or whether it's a standing there now you missed all those other opportunities to several desboro lot less that's the right and if this was going to be written broadly which church could have done or the hospital for the done to have all disputes arbitrary this is five motion is tonight moved to dismiss under two six one nine plan if then amended its complaint defendants then moved again to dismiss two six one five and two six one nine and gauged in document discovery and only after all it's motions  through for arbitration trial court agreed but this court reversed our argument had been at six twenty one was adopted in the excess carrier policies by virtue of foreign language this  disagreed so naturally when we went back down having lost any claim for arbitration we litigated the directivity claims and once we secured a ruling on that and december sixteenth two thousand and eight the carrier switched field again and the argument precisely that we just heard was that the fact that church combined its motion with a request to arbitrate with a request to dismiss effectuate a waiver there is not a single illinois case that effect i agree with judge orders comments but that's the closest case we've had the other two comments i want to make briefly was the argument was made that there's no evidence what halos did and it and that whether they disagreed or what happened and there is no evidence of a policy all that goes to the merits of the underlying claims not to the right darvish ration and fact we will use the fact that he lives did not disagree with our settlement strategy as the did primary defense which is not in the record before we have to take the allegations as true that that was unreadably that was an unreasonable determination by the trustees and breach of their fiduciary duty to deny the hospital its right to arbitrate what what is the purpose of that second clause and the trustees conclude if it isn't to differentiate between the rights of the two parties the consumer who we are unable to concur if it meant to say that if the parties are able to concur either side may trigger an arbitration why doesn't it say so i think because it's a materiality threshold i don't think that every every disagreement about a sudden invokes an arbitration and there's some kind of threshold this kind of case