final question our call today between jenna number twenty it's number one zero eight two eight west american insurance company versus york bill national bank would you like me to wait for mr justice he will be there ok fine and he i should mention that when the judge goes to the back he has both of the audio and a video connection to this courtroom so he doesn't miss ok reasons i'm going to list the four reasons just very quickly and then i'll come back and deal with them separately first your honor the appellate court judgment ignored this court's ruling in cincinnati versus west american insurance company on actual notice and in fact ignored fifty years of jurisprudence from this court regarding the actual notice secondly your honor while the court the appellate court purportedly followed this court's opinion in the country mutual versus love or see decision it misapplied the factors and got that wrong thirdly your honour's  ignored the expressed factual findings made by the trial court with no basis upon which to do so in fact its rulings make factual findings that aren't supported by the record only kidding i do have a question for you i was listening then there is you there of did you ever argue that when it insures provides actual notice of a claim to an insurer such notice universally trumps and insurers right to make  own coverage determination based on exclusions other than the notice provision and i don't see where you argue that but i see it's an issue raised opposing health yes it is raised by posing counsel we obviously disagree with their position particularly because your honor in this case unlike the amicus and unlike the apollyon the only issue for which the coverage was denied was the notice they never argued that there was any other  the insured being able to make a determination on something else down the road absolutely we did not ok because they just want to make sure yeah but i did pretty even get into your points as to what you were doing i wanted to make sure that those yeah that is correct your honor th found that there was no prejudice on the insurance company and we asked at trial we asked the witnesses of last american who testified once they received the written notice because they were arguing of course in western american is focused only on the written notice that was received in january two thousand and four and there was a trial coming up a few months later west american argued well undoubtedly we were prejudiced and they just state that bold conclusion when we asked their two witnesses a trial particularly the one mr schiller we asked them did you ever ask to see the claims filed or the litigation file did you ever go to review the deposition transcripts did you ever sit down to see if you could get a continuance of the trial day did you ever do this did you ever do that the answer was no no no and so the trial court expressly found that west american failed  forth any proof of prejudice if i could go back to the first argument with regard to the fact that we believe that the appellate court absolutely ignore discords multitude of opinions going back to the seven vs iowa casualty opinion in  fifty four carried all the way through that cincinnati versus west american on actual notice the court the appellate court expressly rejected the application of cincinnati and found and i quote that actual notice had no bearing close quote on this case going back to one nine hundred fifty four in this court's opinion in seven vs iowa casualty this court said that justice and reason dictate that you look at the substance of the notice over a form of notice and that's a theme that this court has carried through for at least the last fifty years in state security versus burgos this court ruled that an oral notice to an insurance broker was sufficient to constitute actual notice to the insurance company and the court in burgos spent some time talking about how the fact that the insurance company had cloaked the broker with a parent of forty such that that broker was the agent of the insurance company for the purpose of receipt of the actual notice and because the court found that the broker was an agent for had apparent authority it to act as the agent for the insurer then the actual notice to that broker was sufficient here we actually don't even have to fight that issue because they stipulated but cider dixon and mr richard dixon are their agents and when you go on their website the west  they list their approved agents is either dixon is their agent the policy listed agent desired they stipulated in the trial stipulations that were submitted the day of trial so here we're even stronger burdocks because we were dealing and having oral conversations with their agent for legal purposes we were talking directly to west america when mr leggett was talking to mr dixon our legal purposes he's talking directly to west american insurance and he's describing the location of the suit he's describing the allegations of the suit and under cincinnati versus west american the  standard is that the insurance company have noticed sufficient they could locate and defend the litigation and that and this quote went on to say but in order to locate and defend means you have to have notice that a suits on file which we clearly told them the coosa a suit was filed and you have to have notice but the allegations in that suit potentially fall within the coverage of your policy here we expressly stated to the agent that this was a claim of defamation and again at trial the zuyder dixon agent mr obvious and conceded that defamation is covered with their general liability policy he knew it mr dixon knew it so there was no doubt here that we satisfied the prongs for locating and defending the suit with those are all conversations that occurred in late two thousand ron or early two thousand  your honor and and that's again why the trial court expressly found that this notice was sufficient and i think was a little incredulous that west american was arguing that they shouldn't have a duty to defend this case when they are agent no no your honor there's no absolutely no doubt about it and i want to address a point that the concurring opinion colors this and tries to in a way scare the court of the of these issues by saying oh you're going to get employed when you talk about actual notice you're going to get embroiled in a he said she said battle that's literally the language the concurring opinion uses here and in fact the author of the majority opinion talks about conversations that allegedly occurred between mr leggett and mr dixon your honor mr liggett testified this of these conversations he had with mr dixon they never called mr trial so those conversations were unrefuted there's no he said she said there's just he said conversations and direct unrefuted evidence as to what mr liggett conveyed  dixon and then what mr dixon said back to him about the fact that there was no coverage here i'd like to go on to my second point your honor and that is your honour's that  ignored expressly ignored the cincinnati vs rust american case found actual notice had no application to this matter and in reversing the trial court and attempted to rely on this court's opinion in country mutual versus div court concludes again with no basis in the record to say will undoubtedly the insurance company was prejudiced by this twenty seven months late notice from the time of the claim to the t and that's the only factor the appellate court looks at it ignores the other four factors in the r c but fundamentally what's of error there is the appellate court on its own makes a factual determination or conclusion regarding prejudice when the trial court expressly went through the evidence and said the evidence showed no prejudice so i believe the second basis for reversal of this decision is that the appellate court misapplies this court's directive that holding in the country mutual case the third point i wanted to make your honor honors is that the appellate court in order to justify its opinion both the majority opinion in the concurring opinion ignores the trial court record and ignores the fact that as i mentioned before there was no he said she said there was only he said mr leggett testified at trial mr dixon who was their agent they never saw fit to bring in the courtroom he wasn't there so all of these conversations between mr leg for the bank and mr dixon from the insurance company were absolutely unrefuted so when the majority opinion and the concurring opinion talk about allegation or conversations that allegedly occurred and they talk about a he said she said that's just wrong they are ignoring the trial court's findings in order to justify their conclusion here for whatever reason the appellate court must believe that the cincinnati holding on natural notice is anathema to them and so they're finding a way in my opinion to manipulate a way around that and they absolutely expressively ignore the trial court evidence and the issue of prejudice again your honor is one of those points where the can the majority opinion says there was prejudice here when the trial court in its opinion went through the five factors of orsi one of them being prejudice went to the evidence that was you know basically solicited to cross examination of west americans witnesses to show they didn't have any prejudice as a result of this court rules as its opinion one way or the other real clear leave be read by insurance counsel throughout the state as you know they submitted amicus brief from some insurance industry representatives all the insurance companies have good counsel chairman who will advise our clients of whatever the dictates of this court are but you've got millions of insureds here that have homeowners policies auto policies renters policies etc who never read this court's opinion and never be made aware of it and they're going to continue to do what insureds do day in and day out just like west americans own witnesses admit it what do people do when their house gets on fire or get in a fender bender or you have a claim you call your agent that's what we all do mr artisan who was west americans agent it made it bad he said one of my jobs is to accept claims and most of them are over the phone mr schiller who was west americans agent representative who's an employee from their home office who testified said we have a national phone call center for accepting claims over the phone that's the way people have been doing it for decades if we now have a president where you can call your age or broker and give notice of a claim but the insurance company can later denied coverage if they don't get a written notice of the exact claim that they are made aware of over some pics period of time i trump in every case but in this case i think it does for this reason in this policy and i apologize because i quite frankly in reading our briefs last night i don't think we did in a good enough job highlighting this point for this court but west americans policy has to notice provisions the policy says that if there is a claim for suit we are to notify them as soon as practica notify no modifier there for a written or all it just says you are to notify us as soon as practicable on the plane wording of that language and all notification is sufficient the policy contains the separate requirement that you send them a written notice i think in that context your honor we have fulfilled the contract clearly because we gave we did and i think in this instance we satisfied the policy i will say about that even if that were all that other notification wasn't in the policy and it just simply said you must notify us in writing period if they have actual notice i think based on the language of this court going back to summon burgos and cincinnati yes i think actual notice trump sat language because venue or honor the intent of that contract provision has been fulfilled and satisfied i don't think they could good faith argue that we haven't complied on a material term of the contract if they've received notice so for those and the oral argument is not the concept of actual notice that this court created in september of one nine hundred ninety eight in the cincinnati case in that case the court made a very specific test under very specific facts the test for actual notice requiring an insurance company to provide a defense to an insured was two pronged one knowledge that a cause of action has been filed and second the complaint that the complaint falls within or potentially within the coverage of the policy now in that case it was a very different facts that you ation it involves an insurance company that was aware of the lawsuit because it had been defending its name to insured for three years and on the eve of trial to the defense counsel announced to the codefendant oh by the way you're insured under the policy as recover fifty percent of the cost of defense fifty percent of the indemnity what this court held was that clearly west america could not require a tender of defense by baird because lawsuit it's been handling it for three or four years it just didn't handle it for its additional insured so what this court said was you don't need tender of defense you don't need it where you have actual notice you a cause of action has been filed a mistake about there and you know that the complaint falls within a potentially with uncovered it had been defending its name to ensure it ignored the additional insured so what this court said was  insurer is armed with that actual notice it must go to be additional insurer and ask do you want our assistance or involvement if there's another answer the duty to defend has been discharged if there isn't an answer then that carrier tender was not required federated which will vs state farm out of the second district which created the conflict in the third district decided cincinnati versus west america in this case and cincinnati out of this court there are the courts that have set actual notice under the circumstances of the that test will not require it time to have defense not in this case mr thomas is there any significance that york will notified its agent was told that there was no but it was kind of a he said she said sort of thing of the deal and all insurance didn't cover that type of sue then i asked if there's either dixon policies would cover the suit the answer was probably not now is that notice to agent i would ask this court you probably have a rock works that are a lot smarter and more sophisticated than a central or a small time insurance agent find that lawsuit based on those facts you couldn't do meeting where he repeated basically the same thing that he time twenty seven months after it was filed when he was called by ben weidman the bank vice president who said i've been sued i wonder if my homeowner's policy covers it during which discussion  you i'm not saying that would be sufficient for some type of written notice but at that point with the limited information that he gave you talks to an agent in the bank or elsewhere in the agency is probably not probably no coverage that's right the eight know whose obligation is it does the agent say hague give me a few facts where where is it who is it what's it involved all the questions he says there's probably no coverage based on just that limited set of facts that was given to him by the bank he it curt strong opinion to what he perceived to be a hypothetical question by a bank president while he was a i call it noticed by ambushing wasn't there for the purpose of rendering an opinion any more than he was at a board meeting of the bank for next to a doctor to say doctor i got this red mark on my neck what do you think it is oh it looks ok the person dies two weeks writers have more practice of course not any more than this is the  she goes to the bank president sits in his office i'm going to sue you now you're hurt you've heard about the notice provision of the policy there's a notice provision that when you're told you're going to be sued there's a claim they didn't report it that was in november two thousand september two thousand and one the lawsuit filed so they reported no what do they do they gave it to their lawyer ben cramer who's not not with mr porterfield but the bank's local attorney mr cramer handles a lawsuit another year goes by september two thousand and two the bank president tells his own board about it for the very first time no more descriptive them broddi allegedly told dixon he said she said thing by koosman wrong name in ottawa wrong venue you know but we were soon at was it kind of cavalier it's in the it's in the minutes of the board meeting it's an referred to again in november december two thousand and two and then nothing nothing until the phone call from the bank vice president to the agent out of some saying i' been sued i want to make a claim and that the agent then calls the bank and winds up getting the lawsuit now what the appellate court did here was rejected the concept of actual notice that was applied by the by the trial judge because it was wrong the trial judge took the policy and excise the term with an notice and put in actual notice the trial court thinking that these near miss impromptu in passing conversations board meetings and conference cross which the trial court himself said as to it and he said it with a lot of concern and a local look tony and the local bank vice president bank president i find these conversations never occurred so the chief witness for the for the bank his credibility is put way into issue that having been said the actual notice concept applied by the don't head up to actually notice they don't satisfy this court's cincinnati test that is having the complaint so that you can determine if the claim falls within a potentially within coverage and that that is a determination that this court has said in case after case after case how do you determine if there's a duty to defend read the allegations of the complaint in light of the four corners of the policy and if they're you in showing agreement admits to coverage you have a duty to defend duty to defend is broader than the duty to pay you can't do that based on sitting across the desk with the bank president saying it's a he said she said thing how do you compare that yes right contemplated by its test in cincinnati was not the actual notice that the trial court applied to enter judgment at first for the back which is why contrary to what mr porterfield said the a apply and one of effect justice burke you were asked about prejudice that's just one of the factors the panel of this quote in the course he said you don't need to have prejudice to establish breach of the notice condition it is but one factor not a year was by another ten months goes by when the banks sued then they sit on that for a year before it's even mentioned to the which you know the congress stipulated that notice had not been given for twenty months and the question to this court was was a lack of prejudice sufficient to relieve the insurer of its duty to one factor among others the other factors a specific language of policy well near misses don't qualify them satisfy those requirements they are a sophistication of the insured while this is a bank with a diligence and given notice how diligent after twenty seven months you know of all these near miss things even occurred how did they think that was not a scam what about the gut reaction of an agent who was in there doing a checking deposit on a saturday your own cases bad public process difficult thing to deal with how many cases have have come down since cincinnati involving an issue of actual notice and i'll tell your highness this one there one other case in the first district that involves that involving additional i'm sure the bushman and so if you can't you can argue cincinnati in a case like that because you don't know when the insurers are because what this court said is if you are aware that someone isn't insured that's been sued you've got to reach out you have to ask do you want to help next to us and say that's a good rule that created a lot of business in the state of illinois for insurers bad public policy it's not bad public policy in here which is no different no different than the nervous provision of this court dealt with in cincinnati in one nine hundred ninety eight or in the country mutual versus abortion case a few years ago she identified language clear and orders i just want to address two quick points in response there were some well not even some description there it's just a bold statement that this kind of these conversations when mr leggett on one hand mr digs at dixon on one hand or cobbled together conversation in passing hypothetical if you look at pages five through eight of our initial brief we cite to the record where we cite the description in the trial record of the conversation between mr leggett and mr dixon masoud was mentioned that defamation piece was mention up yes it was a conversation quote in passing if that's how you want to characterize it but it was between a president of a bank and his biggest client broke the agent's biggest client the bank client that he had been placing insurance with for twenty years and who he sat on the board of directors of this bank and whom he sat on the board and heard in a couple of board meetings reference the record here for this court to find there was no actual notice based on the standard of rest american of being ever located and defend the suit where the trial court has found and made a record findings of testimony of what was said what notice was given a worley and then you have a factual determination that there was enough information to locate and defend the suit first of all i don't think worse with all due respect the court should reverse the finding that there was actual notice i think though then you're going to be in a dangers oh and if you're saying these conversations with an agent who tells you there's no coverage doesn't constitute actual notice if that's where the quote would come out i think the public policy argument still holds make thank you