section two six one nine and the facts material to the determination were contested the at the trial court of voided the genuine disputes of the facts by resolving inferences in favor of the moving defend limitations and defense is an affirmative defense as to which the defendant bears the burden of proving facts to stablish ing that the action was not commenced within the time provided by law with when th hand saying the time the contract was signed the problem with that is that there was no loss the hoovers didn't experience any damage you did until after the to rule applies to this insurance case because there was no way that the hoovers could have discovered the negligent conduct of the insurance producer span until after company's liability on the two negligence counts three for negligent misrepresentation and count four for negligence are based on the conduct of the agent and and the company's liability is all and respond to that superior on those counts the company's liability on count one is for bad faith conduct which all took place at the time of the loss and after told keep bringing in your receipts and we will keep paying it wasn't until august they were told don't bring any more receipts you're not getting any more money it was only then that the hoovers had reason to know that the policy that had been sold in two thousand and seven did not provide the replacement coverage they had been told that it provided replacing meant coverage up to a stated policy limit that the company had reached and no further but before the time the country companies had sent them correspondence after the fire saying you do have replacement coverage and so what we have is a situation and the hoovers affidavit specifically say this is that they didn't know between the january fire and the august statement that we're done paying you they didn't know the facts that give ri because of that the complaint should not have been dismissed because effect finder can reasonably conclude i need facts that the hoovers did not know until august of two thousand and eight that span had negligently failed to get them the replacement cost coverage that he said he had gotten now the fact finder can also conclude from these facts or any other that might be in the evidence that the hoovers did know exactly what was going on and it was a lot sooner than they say so but that's a factual determination and  and that i believe makes our point that the need for evidence and trial is apparent from the dispute as to the facts that are material to the outcome t appropriate when the facts allow for only one conclusion that's what the cases say but that's not our situation here other conclusions are possible and and we insist are actually true so the discovery rule apply and the fact finder not a judge on a cold record made only of paper has to determine when the hoovers knew or should have known of their claim about the w do have the coverage and then have the rug pulled out pulled out from under them after the loss so i just don't think that applies here i think in the end insurance and discovery rule as  perfect i also want to make a point i think it's a minor point but out of the respect of the torsion firm for this court that i hope is mutual  there is a point raised by one of the employees regarding the completeness of the record there was no report of proceedings for the motion hearing at which judge powell invoked the defendant's invoked to that six one nine and judge paul agreed with them that the complaint was time barred there was no court reporter there and because there was no on there is no report of proceedings for that day in the in the circuit court the country mutual was argue that we didn't give you a complete record because we didn't include that transcript well contrary to that proposition this is not an instance of an appellant omitting a required document from the record this this is an instance of nobody ordered a court reporter that day so the record we gave you is complete and i hope that that was clear rule is an objective standard what would be reasonable person have known and that is based on what information was available the information all the information that was available that the plaintiff needed to know was first the insurance policy in terms of the insurance policy which the plaintiffs admit that they received when they acquired the policy prior to the fire under illinois law and ensure it has  gates to read the terms of the policy and if they had done that and batman perhaps they did it doesn't matter they should have done it they would have seen a very fierce action that says  the policy that's different from what the policy contains they have an obligation to know what's in the policy and they can't say well you're right  in their claim is that my client represented that it was a replacement cost policy it is it provides for replacement cost replacement cost is how you measure the amount of damage you don't take depreciation into account but it's me but it's not the burden of the insurance agent to decide how much dollars you need for replacement cost illinois one of provides that it's the duty of the insurer to know how much insurance in specific request for full replacement cost and what i paid very close attention to is nobody countered that and said that's not true that's not what he requested he's not  a different limitations period for negligence actually correct it's a two year it's a two year period and he brings up the discovery and that's right and then so you have to then look at when did he have enough information to you were in the record no because of we're not we're not raising that as that we did not raise that as the basis for the dismissal we based the dismissal on the statute of limitations because the plaintiffs had all of the information they needed to have to make their claim act more than two years before they filed the claim and this is what they had now they say they had gotten the policy and the declaration page that showed the limit the limit of liability back when they bought the policy before the fire after the fire and these are uncontested after the fire they requested that mr spann send a copy of the policy terms and the declaration page to their lawyer attorney carlson which he did in february  february of two thousand a short way after the fire in early february they obtained a quote from a builder as to the cross replacement when you put together the terms of the policy and the amount that it would cost to replace the house you have to come to the conclusion that the policy does not provide enough coverage to replace the house because the limit of liability into the policy just two hundred sixty thousand dollars the quote they had was five hundred thirteen thousand dollars so here more than two years before they file suit they had all of the information they needed that's the objective test for the for the discovery rule and the argument that the plaintiff has made is well that's what the will the lawyer had that information but there's nothing in the record as to what clear that the knowledge of a person's attorney is attributed to the person and here your eyes don't need to look any further than yugoslav american cultural center versus that the knowledge of the attorney is the knowledge of his client so before the end of february of two thousand of two thousand and eight shortly after the fire the plaintiffs  had had the policy terms that had a lawyer reading the policy they had the policy terms they had the policy limits and they knew if the cost was way in excess of the policy limits that's that's all that the plaintiff needed to be able to make a claim that the agent told didn't give us what we wanted when we bought the policy this counsel that are human is fine for the contract but what i'm most interested in is the negligence that you were the hoover specifically allegedly complained that spanned over them a duty to exercise were mere appearance on curing an insurance policy that provided replace dispute as to what he requested we move to dismiss on the basis of the statute of limitations and the satchel even for this claim there's a two year statute of limitations if their claim is that mr span didn't give us what we asked for or mr spann misrepresented what we asked for they had all the information that they needed to assert that claim more than two years before they filed the maintain what should they have known and what they should have known back in february it more than two years before is that the cost of replacement was over five hundred thousand dollars and that the power c terms limited their coverage to two hundred sixty thousand dollars they had all that information more than two years before they filed suit if they didn't kill them before march of  he's an aide he is an agent for the insurance company he's not an agent for the insured he's not an insurance broker there's a distinction between an insurance broker or any assurance agent an insurance agent is one who has it an exclusive and permanent relationship with the insurance company just as if you complain of the insurance company and his duty is to the insurance company just as the salesman at sears roebuck sells you a lawnmower is not your agent he works need the it's the the only the only obligation that he has is to submit to the company the application that's made by  insured but the insurance agent under illinois law does not have a duty to determine the amount of coverage that the insured needs this is the insurers or can dish twenty his principal where is an insurance broker who is also an insurance producer would owe a duty to the insured that's that has always been the common law it was so held in this is a neat case by the on ice supreme court insure that you're the if the if the insurance producer is an insurance agent he owes the duty to the trance company if he's in if he's an insurance broker who's independent from insurance companies he right he's but he's selling he says he's a salesman for this company when he's an insurance agent or as an insurance broker goes out and looks among insurance companies for out for a policy for his client  the statute and further section expressly does make a change in the common law which says that the duty is not a fiduciary duty so when the when the assembly wanted to change the common law they express issue of of determining the a melt of insurance that insured needs up the plaintiffs have gone to the extent of citing to this court they decide case from california a case that has never been cited in any jurisdiction outside of the state of california so there's this one case in california that says that an insurance agent  if you're honest have no further questions of me i'd like to turn this over to  mcknight good morning and the only night may please the court on behalf of the country mutual insurance company i don't overlap some of the arguments that are here but i think it's critical for the court to understand that the see in question specifically provided for replacement cost coverage however as a portion of the replacement cost coverage if the limits of insurance were not eighty percent of the total replacement cost then replacement cost does not provide because does not apply in under those circumstances what we have to hear it is issue is not whether or not a replacement cost policy was delivered to the insurers because it was a replacement cost policy was delivered to the church what we have here is what is a dispute over the amount of insurance that was requested and this is where the issue comes in with respect to amount versus the type of policy the type of policy was delivered was what was requested by the insured the problem came in when the insurers did not request the appropriate amount of coverage in illinois law and an end mr becker alluded to this only log requires and specifically provides that the amount of insurance is to be determined by the insured the insurer has no business in determining what the amount of insurance is appropriate for individual persons and that duty under the more decision is a fiduciary obligation the idea that a broker for example that represents an insured under that distinction would doesn't flow from a captive agent to an individual insurance because the cap an agent acts on behalf of the insurer so even if we were to suggest that twenty two a one breaks down the distinctions twenty two or one specifically said is that there is no produce they could do sherry duties do not apply under twenty to a one it's specific in language and so on those circumstances the only duty they can apply is ordinary care and ordinary care under those circumstances is to deliver the policy requested and then leaving the duty and the determination as to the amount of insurance to be left with the individual insurance or community he would use the insurance he has the duty to nielsen decision discusses this and the more decision discusses this that because if we get into this dispute over what fall means we're going to be down this road on every single insurance case there is what involving a niche a captive insurance agent so the idea of these amorphous terms of full or with respect to complete or those circumstances by the way this policy would allow for if the limits are correct what allows for a recovery beyond the limit of the policy if that's the if it succeeds if the rip the the replacement cost exceeds the the the limits they set says it only sticks into the the limits under certain circumstances when it's not within this what i will call within the eighty percent will which has been well established so under those circumstances the insurers have the obligation to come in check and look and see what the amounts are because the agent can't know that but they also have her responsibility that the environments are both in the affidavits as was not verified complaints if they requested it in the first circumstance they said another coverage to replace my house so that i don't have to do it myself is what is in paragraph seven of the amended verified complaint and that's the same allegation in paragraph seven of the of original complaint and then later on they say we wanted full coverage and that's the allegation put on the docket never in anywhere in the record at all is there ever an informant that they said i wanted five  insurer are in no position to make that determination in fact the case law is very clear that it is the in it's incumbent upon the insured it's their responsibility to decide how much they need and that's important because if the insurers and you can imagine what the circumstances might be we'd be back in this quote related rant because someone said i thought he needed more insurance and that puts a situation i kept of agents under those circumstances saying i'm going to sell you more insurance than you need because i think you need to replace this and insurance company pfizer through underwriting before it comes from a dollar figure from the insurers themselves but once the policy is delivered and under those circumstances once the policy do it it's incumbent upon the insurers to say i have two hundred sixty five that's not enough i need to go back and get more that's not the obligation of the insurer or the insurance agent and that's what they're trying to do here they're trying to move our obligations outside of what's the order to zero ordinary care and they're trying to move it outside what is twenty to a one as it was a obligations what they're doing is you're saying it's negligence but what they're saying is they're sick they're calling what is a fiduciary obligation to determine the amount of insurance negligence as ordinary care they just moved it into a different category here's my inch the insured will then that's my point how does the air policy then if there's just a request for full replacement cost and then do it and what they do say and they go out and they look and they say it's a six hundred square foot house and they do it the underwriting guidelines are set forth by the the insurer says i'm going to issue a policy that's got this amount and it's on it's delivered and that's when it's incumbent upon the insurer to say that's not enough or too much and we get in these circumstances where if you get into a situation where you have an insurance agent siding that issue for an insured you're going to get cases in this court room where you dare are going to be allegations over insurers i was taking the guy give me bad advice i should have had this much i have too much insurance because these people are commission paid person so under those circumstances the dollar amount which is the only issue in this case the only issue in the case with respect to the delivery of the policy is the limit the amount and that is a duty that rests with the individual  with respect to the issues regarding the statute of limitations the limitations period as it set forth in the policy are explicit illinois law is explicit has been this case for more than one hundred years that the power see the limitations period runs on the policy one year from the date of the occurrence and one year from the of that which would move it from january twelfth two thousand and eight to generate twelve two thousand and nine there is no doubt there is absolutely no doubt that these people the hoovers were advised of the one your limitation in fact the letters that were issued to the hoovers from country mutual specifically referenced the one year limitation period both on february eighth and then february twenty second without ever even getting into the discussion of whether or not they received a copy of the complete copy of the policy whether they previously had a complete copy of the policy it's an admitted fact that as of february eighth two thousand and eight in february twenty second two thousand and they're on notice that the one your suit limitation applies it's undisputed under the circumstances also i find it problematic and disclosed to the issue of whether or not a subjective or objective standard applies and mr becker addressed that issue with respect to contractual imitations attached in referenced in both the amended complaint and to verify complaint is the group that they received from the they allegedly received from country mutual prior to another complete policy having been sent to their attorney and if you look at exhibit a of the verified complaint it's got the home insurance policy on it and it's got a page and i don't have as big an exhibit but they have a page and there's a a reasonable person knowing and looking at that piece of paper and say i've got there's more here well they got more it seemed completely under the circumstances they'd know so in combination with the date of  in combination with the letters that were sent by country mutual that said your last day to file suit is february twenty second or january of two thousand and nine and that was sent on february twenty second two thousand and eight and then ultimately the delivery of the policy to their attorney there can be no doubt at their i notice in a reasonable person is on notice that the limitation period is in play meaning they've been advised of it they know it and i might add that not only did they not file suit and it's a one year limitation period on the contract not only did they not file suit within the one year despite knowing within that one year in despite knowing within a month of that one year of what the limitations are being filed within two years they would all the way to march of two thousand temper for filing suit so the contractual imitations period here is explicit it's well established in the law it's a requirement under the one hundred sixty five lines policy and it's binding upon the the insurers with respect to their action on the policy itself and i and i'll be brief with respect to the issues of those same sets of facts of the knowledge of when the policy meeting was how much policy coverage you had those seem sets of facts those that information and in fact the eighty percent rule is discussed in a february letter to the church put them on notice reasonable notice of that there is an issue here with respect to the amount of coverage and then they talk to their tourney's and there's still more issues with respect the amount of coverage and so for those reasons the statute of limitations applies both contractually and then under the circumstances with the negligent misrepresentation and the negligence action against the ensure we can't be held liable for those those circumstances because it's not our duty to determine the amount of insurance and we have that he sustained the ruling of the trial  you thank you out as i'll try to be brief i still say it's a procedural problem because what facts can be determined and inferred and concluded the facts that are before the trial court in this court  subject to different interpretations as s to the policy book but the record shows that country mutual gave the insurance a loose booklet of what purported to be the policy terms that did not contain the one year limitation counselor shown you and exemplar of the booklet today but that one isn't in the records so i if we didn't get the one we should have the the argument  file copy of the policy for purposes of the contract claim on the policy is the policy that is admitted but the booklet appears to be something different altogether it did not match the the one that was on file at the company and i think it's safe to believe that the book but is is kind of a stock item that can be pulled off the shelf and and brought to the insurers in a hurry after a fire and you win this one sorry i think you hit it on the head about the conduct of the agent that we seek to establish as negligent defense argues that the defendants are in no position to tell the that what the amount of coverage should be or that they have enough but that's exactly what the agent did who first came in and asked for full replacement cost the agent told them they had over the place and cost i he didn't get them what they agent's principal the agent's principle at that country companies his duties there are a matter of contract we don't think makes sense to make them a matter of statute we think the statute makes those duties owed to the customer the insurer and what went wrong here is that the agent voluntarily undertook to represent to the insurers that he had gotten them a policy that provided for full replacement cost of their home and he had not yet gotten them the policy th to assess the value to determine the propriety of the coverage how much of that was done i mean we think you care would send the agent out into the field to make a determination of how much this insurance was necessary and to recommend it to to the client but that's not the issue before the court i the what you're interested in though is is a matter for more fulsome discovery and assessment as a was we think so yes that the that the insured by going to the agent and saying i need a policy that will cover the full replacement cost of my house so that unlike the first time around i don't have to rebuild it with my own hands they had a