please the court my name is michael brock and i represent the surgery center at nine hundred new earth michigan avenue appellant in this case in the plaintiff in the in the court follow this is our peel from a rule fifty judgment as a matter of law that was entered after the close of plaintiffs presentation of its case to jury in a insurance bad case of the required elements in our case the  in this court is whether the surgery centers presented sufficient evidence for a reasonable jury to conclude that there is a reasonable probability of the finding of liability when a p a the insured if used to taken to trial well the in this case the matters here did not insist that the case be taken to trial the evidence in that regard was from i think three or four years prior to the actual trial in this case beliefs about how to handle the case after that the case was dismissed appealed and sent back from that point forward there's no evidence of what the insurance desires were now was part of the problems cases the insurers never asks be but the evidence is that the policy when it demand was made it was sent to the insured and then rejected by the insurer without getting the insured to weigh in  well the conflict is an issue in the case because had the insured been provided with independent counsels they should have done they would have gotten the advice that they should have received so that is part of the bad was was correctly decided and that when insurers faced with an access potential and situation that could could devastate their their business or their life through an adverse judgment they  only buy insurance the insurer has a duty to treat them fairly and treats are interested equal to their own and whether it advised them of a conflict of interest advise them of exposure advise them of their rights independent counsel all those things are hard proceed with so i believe that lebanon was correctly decided and and in that case there was a duty to disclose and illinois courts impose that sort of checklist rendered a quadriplegic she sued the doctor who performed the surgery and she also sued the surgery center for the discharge the insurer recognize and admitted that the degree and injury and sympathy of the pla are factors and that feed into liability in this tapes injuries what's horrific she was a thirty four year old healthy woman when she walked in for surgery and came out a quadriplegic she was sympathetic she was a good witness is considered a sad case it was considered by the e p a as a case that they had to be very careful with because of the risk of if it holds a p it also says we had a lot to be thankful for when they obtained summary judgment the first time because tate was a sympathetic witness quadriplegic the case was pending in cook county which is another liability factor it's a venue known for high verdicts and another judge who was not as smart or brave may not have rulebook he also classify the case as severe nine out of tends to vary it was a high exposure cases the nurses did not comply with the with the surgery centers on written policies and standards witnesses the discharge nurse was a poor witness the boyfriend who  ms tate to the surgery was unavailable because he was deceased and so the only witness that yeah the surgery center was going to present a trial was nurse shrillness who was an expert perform poorly in her deposition and defense counsel said she could have killed her because of her poor performance before your time runs out perhaps you could address the meaning of reasonable probability in this area of the  court's requirements for this kind of that they claim require showing up a reasonable probability of liability on the part of the insured and a reasonable probability of an excess judgment correct and elsewhere that all the conclude that a reasonable probability is a lesser standard of proof than preponderance of evidence and that makes sense to just looking at the words reasonable and probability it's a probability that must be a reasonable evaluating the value of a case that's what a p a does when it evaluates the exposure of the value of the case basically multiplies liability times and times damages come out with with the val those two things to differ you could have a high highlight go to case maybe a moderate to high damages case in a moderate liability tapes and in that instance it would prevent it would present was was such an effort made to determine x on today the value of the lawsuit in it by a p a if they did they dave reese their reserves were at a million dollars they valued at three point five million dollars no no i'm i'm trying to figure out whether an effort was made to multiply the probability of success by the likely recovery in the event of success in order to get a and then they did it didn't submit that they did in their reserve value evaluation worksheet which is two different question was such an effort made i'm not asking how much the insurance company  reserves i'm asking whether a concrete effort was made to value the litigation by a p a p it to that by anybody well they did and that's what the insurer did throughout the future jury instructions have to incorporate pile the burden is on them to prove that we should have known reasonable insurer would have that it was more likely than not we're going to lose a trial they did not attempt to prove that his trial here they call two experts neither expert testified that in his opinion it was more we should have known that was more a reasonable probability that the case would be lost putting aside the standard whether it's more likely or not or not we believe that's the law in illinois but irrespective of the standard that's applied they didn't try to prove even using the phrase reasonable probability and when judge coleman in her ruling on the motion for judgment as a matter of law she didn't focus on more likely than not chief simply referred to reasonable probability i don't think she used the phrase more likely than not so in this case the the the they simply failed to prove that we should have known that all of the evidence demonstrated that we had a reasonable basis to believe we're going to win the case the plaintiff where they did not have a disclosed expert now in their brief i think at page twenty one of my opponents observed well there were three experts well there are only three experts in the sense the there were three doctors qualified to perform their profession but they were not disclosed witnesses under the illinois supreme court rule two thirteen f three disclosed to give an opinion that the nurses at our insurance facility had deviated from the standard of care beyond that we had  by outside counsel of that it was a ninety percent chance we're going to win now this aggressive number but he reiterated again because he reviewed the entire the entire case and came to the conclusion not only do they have the problem of not having an expert but deviation and then there was a third claim that there was there was there were unsterilized instruments that our nurses in our facility was responsible for the infection because the instruments were sterilized before when all three of those were in the case all three of those potential planes in the one the remotest afraid of was agency because we can't control that the surge is liable that we're liable for that is when the president of the company built those e mail saying under no circumstances do i want to settle this is a frivolous case we all know  serious she was warned there's a ten million dollars closure a couple of occasions so that it is the case evolved the agency fell away and then it went up on appeal there were two issues that went up on appeal one of them was in two liability issues one was the missing order and the other was a sterilized instrument when it came back down all that remained was the missing order so the case was stronger than it had been at the time that these demands not to settle the case were made in the event the jury didn't even hear the missing or instruction the jury simply was closed the case came to be this administrate of code section that was put in at the very last second it was a piece of the administrative code that implied that if you as as the as a patient is leaving a surgical center they have to be given discharge instructions the plaintiff was allowed to argue that that meant you had to give the piece of paper to the to the person who just is still under anesthesia you giving it to the boyfriend which everyone acknowledges that happened yet signed forth that that wasn't sufficient it was in evidence that the jurors came tumbling out of the jury room a couple of them crying because they felt that they could be compelled to rule in the absurd way because of this jury instruction that's why with case was lost not because of judgments that were made  f incorrect judgments made by by my client with regard to this conflict of interest that you're on a boat race in opening statement that they had promised that the jury they were going to bring in witnesses from him showing culbertson who had been retained after the judgment was entered and they were going to come in and talk about what was supposed to have been done and what wasn't done how it affected the case they didn't call them so the jury never heard any evidence about that other than things sort of peripheral arguments and comments about it but none of it the tied in any way one of the instructions that the hand of court did not find it appropriate is the definitional and it says basically you can try this case as a bad faith case or as the negligence case this is just a negligence situation so will playing more likely than not which is something that we you know this court also in all the courthouses that's the standard we use for virtually everything that's not a criminal or fraudulent matter is not in any way inappropriate i think that when you look at the there and there's no basis under the a our case for this court to over landscape there's actually no there's not and i think you know if you if you if you look at the other cases and if i ask you not to explore this but if you were to explore this i think i think what you see is that putting aside for a moment that the criminal cases are in different context all of the judgments that are made for example probable cause ineffective assistance of counsel the the other ones those are all judged decisions those are jury decisions those are cases that in that implicate constitutional issues and serious serious lawyer thinking is that is appropriate or not case in that case the court felt the need to explain why they weren't using what would otherwise be the standard which is more likely than not because it's a two element claim it's the first is that you have to show by preponderance that the absence of the evidence that cause you to lose the case and then you have the second element which is that there was a reasonable probability that you would have won the case if you had the evidence and the court said well if we require that to be proved by a preponderance that would imply that you had sufficient evidence to prove the case in the first place which would negate the first count so the only case you're aware of that that uses anything other than more likely than not in this situation is the spoliation case because of the unique circumstances there in the court went out of their way to explain why that was and i think beyond that the the equal consideration when you look at it more likely than that makes sense because insurance companies over the insured only equal consideration to deciding whether or not t stop and many people are surprised to learn that the first time they're they they read that the insurance company doesn't hold above that but they don't because insurance companies have to stay in business they can't settle every case and that cries out for fifty fifty and if it's more likely than that we're going to lose then we then we argue but if you can't prove that it's more likely than that we're going to lose we made that judgment then we are not gambling and then we can't be held live so we ask that you for the judgment of the of the of the district court i think the least the  plaintiffs simply failed to prove their case and in many respects didn't try to prove the case they needed it points the problem it and we put in our brief of the one hundred million dollar exposure case and twenty five percent potential liability and one million dollars insurance you're faced with a in that case a twenty five million dollar on a case where there's a chance of losing twenty five percent that is a situation that cries out for a settlement if you aren't sure of that one million dollar policy that is because by going to trial you're you're risking the more flexible reasonable probability standard when pollack said reasonable probability is the equivalent of more likely than not it's cited that had a case and i've not seen any case other than hand that follows the powell holding not seen any case that says reasonable probability means more likely than not so where a child got that from who knows because what exist at that time was weighed in all the other decisions out there and on what reasonable probability and it's said that we we did not have an expert we had the claims of evaluation form that showed applied the more likely than not or her preponderance standard that's that's incorrect standard here also spent a lot of time talking to other trial the question is judged at the time of the policy limited to judgment the way it happened doesn't really matter and so the conduct is judged the time that the demand was refused that was and may now that's when all the sort of information that that we put in our pr that they're in the risk potential was there they put up a million dollars of their own money they'd worked it as an expense on their books they fully expected to pay that money instead gambled by going to trial which is it's a classic bad fa failure to settle situation and so it's a classic breach of producer duty to the insured and to treat them fairly and equally and then they should have been more forthright and should settle the case so