minutes per side save some time for a report all the microphones here are not for amplification so they're just for recording so keep your voice up when your are going ok thank you i think  twenty one years ago i came before this court not this panel to argue in the webster's vs marin case that the trial judges application of kansas separate ride or the law was appropriate in that products liability case today i return asking for in essence the same relief the application of the separate liability law scheme of a different state in vienna but in this case i ask this court to reverse the motion judge's decision in applying the one i will there's about a half dozen key points that i want to make the first point that i want to make is that the motion judge correctly decided that the cross a feeling they were going aggrieved party had no basis to cross appeal right you may be right justice but i know we argued in our brief that it was waived in the sense that it wasn't raised in a separate appeal  but you may in fact be correct on that particular point and i think i think she is right and assuming that that is the correct proposition and i was in error on that then the point becomes i think try to cure late is there a distinction in the long t previous i guess hypotheticals in my opening brief as to why if mr as we've been calling him wrongly callouses fed was assessed the northbound driver in a cell phone lanes of i sixty five that could have an incredible mr roach and the judge ok all right tell me what you want to know in addition to what you've already given me i think i understand it fisher sure your honor court fairly well it's an indian accident correct yes fisher the court it's a northbound defend southbound lanes correct fisher it is yes ms moriarty but he's not a defendant mr fischer he's not a defendant the court i'm sorry he caused this huge accident mr fisher that's one perspective so clearly the motion if they called a motion for good faith finding we've crossed take that position that no good faith finding a resolution needs to be made because indiana law applies several right to what the law but to be on the safe side and before the arguable stache limitations in indiana ran we filed a document showing we're putting you on notice of this non potable now the real reason in indiana law right less important is because a plaintiff in indiana does not want to be led down the point did the conduct of mr or callous was considered by the trial judge it clearly was it's identified in his opinion so we go down to the fourth point since we're not here to prove rob how his and then assessed the he felt i think plaintiffs are going to response be presupposes that with his argument about this inadmissible evidence the police report no that there was somehow trying to argue the case and decide it right here in the motion judge and these chambers clearly  the opinion that the motion judge wrote did not address in one shape or fashion the presumption oh state law of indiana where the action occurred being presumed to be in favor the decision did not address it and for that reason alone because the motion judge did not overcome that presumption in favor of the presumption this case right the web this case of twenty one years ago we do not have that circumstance we do not have that circumstance in the rosetta place we don't have that circumstance in the towns and case and most interesting  be said that the injury could have occurred in any state as the alleged negligent conduct occurred at that specific time and location in the indiana roadway and then the last sentence is particularly telling us the court finds the location was not merely for really is an element of convenience and it really doesn't deter me but the last thing but i will point out is there's a very big key distinction that exists in analyzing all these cases not one of the cases cite counsel or myself has the factor that the dentin case s and that is the presence of a non party tortfeasor not a single case cites that and because it would be somewhat anomalous in my view to have  motor vehicle law applied where he's is the subject himself the jurisdiction he would be subject to a contribution counterpoint in this case in fact this very same motion judge on another case cited by  jurisdiction so that's the key point the debtor case is very much like the west risk case but it has an added feature that distinguishes it from every other cases and that is the presence of a non party talk feature from the state in which the accident happens thank you very much it's like a new seinfeld show  you stated the question i think though is whether or not it will make a difference in this case and as the case stands now there's no evidence to support the defendant's argument that the difference in law between indiana and illinois will make a difference in this case but what about the argument that yes the percentage of callousness liability goes up the award against the remaining defendants goes up under illinois law whereas under what outcome might be nobody has evidence at this point and that's part of the problem with the with the movement's motion is that he filed this motion in my opinion prematurely he filed it before he was able to gather evidence that the statute in indiana will make a difference it's like that indiana case i cited here illinois case i cited the wrongful death case i think it was kline g l e i am where the court found that yes there's a difference in the law but the defendant was unable to demonstrate that did stay all right are to the defendants in that case and i think that's the same situation here the defendant is required to present evidence and was required to present evidence to the trial court that that statute was actually going to apply he didn't present any evidence other than his own statement that callus is at fault for this that's all we have in the record how can you how can you even talk about this occurrence without starting with callous i mean the whole he's the first domino you know the most dominant that i respectfully disagree on something so you think that we can look at this case by excising the conduct of mr callous was driving the wrong way down the road causing all these other cars to go left or right and trying to dodge collisions number one there's no evidence in the record of that number two with when you say bit was a reference to a motion to dismiss there were no documents there were no if there was no admissible evidence attached his motion for a four day application of indian along with where does this say my position is as stated my brief in that the court is limited to reviewing documents that the circuit court reviewed in connection with this motion but i understand there's a difference of opinion i understand that i'm probably on the losing end of that argument however that's my position is that the documents that were submitted to the trial court in connection with this motion they can't just also in rio right resurrect everything in the trial court record and say you know court the trial court considered all this when there's no evidence that the trial court considered all that evidence in connection with deciding this motion they consider that in connection with deciding the motion to dismiss yes but isn't that when a judge in any first of all this is a fortuitous event in fortuity is not an argument of convenience it's an argument that has been stated over and over in the appellate court opinions within especially in respect to interstate travel cases and the reason why this is a fortuitous event is this this crash occurred when the defendant truck driver failed to slow down when all the other traffic in front of him was slowing down and crashed into the rear end of my client's vehicle now nobody knew why traffic was slowing down there was a change in traffic patterns that cause traffic to slow down everybody slows down except driver this is a four two which is a vent because this particular incident of a change in traffic patterns causing cars to slow down and come to a stop happens probably in every trip this truck driver takes in every state this truck driver takes it could have happened because there was construction up ahead it could have happened because there was a deer crossing the road it could have happened because a mattress fell off somebody's scar but then we wouldn't have the presumption that we have in illinois at the s lot of the situs of the accident and where the injury occurred is presumed to apply if if your right and fortuity is something that a court can look at all accidents are for case brought the tractor in michigan mode is no longer in michigan lived in michigan it's not fortuitous that the accident happened in michigan because that's where everything occurred when i was your client in indiana he was going only does it does because we've alleged that this driver was grossly incompetent he didn't have a driver's license he should not have been on the road because he was grossly incompetent he didn't stop when everybody else was stopping he shouldn't ever been on the road the conduct of letting this driver drive a truck is certainly a very large part of why this crash occurred and so he's from mining south carolina yes yes  the relationship is this brokered road in illinois they hire a incompetent truck company that has a history of violations bed uses incompetent drivers to haul their load from illinois to other states not only to describe or not have a driver's license he had seven collisions he was convicted of a felony for road rage for a prior license suspensions ten traffic related convictions nine out of service violations that's a very nice but it will be cross examination but i have a feeling it's going to be held in chester county indiana i mean everything here leans toward indiana and if you want to talk about fortuitous the fact that he picked up this where you have in colorado resident and in iowa a defendant and the illinois courts determine that colorado rock lied because of the connection to colorado performed on your case and just put callous off to the side and forget about them but i don't think that we can do that in i maintain that it event is for to decide i understand that you made to disagree with me but that's one  element of the exercise we have to go through and the only thing that happened in indiana in this case is that the crash itself now when you look at the other factors you look at the residence of the parties involved in this case which particular incident occurred and also if you look at with the relationship between the parties is centered in illinois because that's where the road was brokered that's where it was picked up that's where it was transferred from so you look at that factor it weighs heavily in favor of illinois and the  the place where the conflict occurred we operated address that i understand the negligent driving occurred in indiana but many other things occurred in illinois specifically they entrusted this road to an incompetent driver in illinois are ways in favor of illinois so even if you determine this case this incident was not fortuitous you still look at the other three factors and they weigh in favor of illinois and then you look at the policies for the state of illinois versus indiana and the policies of this particular case when the issue involves damages the policies of the state of illinois outweigh the policies of the state of indiana because it involves compensating one of its own residents and when there is an issue involving compensation of one of your own residents that state's law weighs heavier in favor then the other state able to cite one interstate travel case where the court determined that it wasn't fortuitous because he's traveling through many different states this same incident could have happened in any state because they put it in competent driver on the road he was an accident waiting to happen thank you happenstance this adventitious as one quote refers to it is an argument of convenience that means nothing and incidentally there is no line of interstate travel cases that doesn't exist his argument was i filed this requirement for admissible evidence all the cases he cites for the proposition that i was supposed to put on my entire case were summary judgment dismissals with affidavits and for not comedians aesthetic creatures that are much different cop thinks that the cause was mr on a callous the concord be wrong it could quite sincerely be if we go under indiana long as we argue this is what possibly could happen and this is the benefit of the plaintiff not the benefit of the he could argue john simm for south carolina driver and its immediate employer and its motor carrier statutory employer based in michigan are responsible for his negligent actions and then there's this joint venture that arguably exists not in this case this isn't a wrongful death case for minors case with caps there are no caps the line items are nearly identical this is the same as the more to this case the contrary the mightine apply colorado law right because the damages effect that the only issue in that case was damage