groaners please the court issued before the court this morning is whether or not the trial court's finding of an implied waiver was correct under illinois law it was with all respect to the trial court it was not i think that it should be clear from the briefings that the real heart of the question in this case is who has the burden of ensuring compliance with the terms of a contract which both parties have entered into i think the answer to that question hangs upon whether or cases that both parties have extensively briefs there are always two key distinctions that are looked at by the courts as to whether an implied waiver has been found first is was there a condition precedent did the party seeking a certain performance from the other party say that this this action must be done prior to us entering into you performing any other work on the contract the other the other key distinction is whether or not the party that is alleged to have waived seats at the end of it to reach back into what is essentially a close relationship  and that is established by you know all the work's been completed and the other party has been completely paid for their work and then after a complete payment happens the party comes back in did look at this she did make findings of fact i think that the law in order to find a and implied waiver and that's what we're looking at your honor i want to make clear that what we're looking at here is an implied waiver  despite some intimations to the contrary in applebee's briefs there is no dispute that there is no express waiver in this case there is absolutely no writing that would indicate that  c on intended to waive the sub contract provisions and the terms of the sub contract are very explicit and clear as to what was required and that though that was never that the that mecca never intended to waive those upon provisions now in regard to the fines by the trial court illinois law is clear that in a case where on summary judgment where the trial court seeks to find implied waiver there has to be two elements established first is that all conduct a stablished by the end disputed facts must present a clear inference and no other inferring it's that the party that is alleged to have wave did either intended to waive that for that no other inference can be drawn as to their intention to waive the other factor that has to be present that there has to be a reasonable belief by the party alleging a waiver that first is that as pointed out the briefs that is the only evidence we have that there was ever any express knowledge of waiver and that is testimony by the president of the company that now seeks to establish waiver i mean that that should that testimony should just be taken for what it is the testimony of an interested party the other point on that is that that that's what you have in all  parties who were of interest didn't have some testimony i agree honor but the second point to be made by that is even if even if we accept that that conversation occurred as related by mr salinas that occurs prior to the signing of the sub contract which the said contract contains an integration clause which says that no other prior role agreements are written agreement shall apply and that the terms of the sub contract govern the relationship between the parties terms of contract are very clear as to what insurance requirements met khan expected to receive from galaxy so i believe that that that testimony does not actually go to whether or not we have a waiver and again we're back to the question of whether there's an implied waiver the pretty story for them to any counter affidavits or deposition testimony where  simply stated that he couldn't really he acknowledge that there had been a conversation between him and mr salinas he could not remember the content of that conversation i mean this was would have been back in two thousand you know and mr flynn was having conversations with several cuts of contractors during that period of time but again your honor as i said even if we accept that mr sillinesses you know version of the event is true it still does not go to whether waiver occurred because if it is prior to the signing of the of the subcontract which mr salinas himself signed he agreed to those terms and conditions explicitly through his signing of the obviously the trial court is burned with with looking at looking at those the undisputed facts looking at the inference is that can be drawn from those facts and making a determination as to whether the influences are clear and unambiguous as to the fact of waiver even in a case where the facts themselves are undisputed if the inference is inferences to be drawn from those facts are competing then it's improper for summary judgment  the trial court would be improper to grant some reserve in this case and i think that's clear that we have we obviously believe that the inferences to be drawn from the facts favor mekon the fact that they did not intend to waive but we acknowledge that there is at least competing judgment on our counter claim for breach of contract when we looked at this case during that the motions for summary judgment says we saw this is a very clear cut case that could be decided on the you know the documents presented before us i think in light of the direction we received from the trial court in regard to intent and it more now more for all or understanding of the law in this area it's probably true that this was never a case that should have been presented to the court judgment setting that aside however what we can reason we are here today is because the trial court and perhaps the parties to a certain extent during the briefing in the trial court below did not fully appreciate the implication of the presence or absence of a condition precedent in the contract the trial court's decision to grant or to find a waiver in this case where there was no condition precedent is clearly against the the decisions that are established in the way the line of cases in every case where this waiver spine is found you see a condition precedent in the cases where waivers not found there's even no condition precedent or there is a presence of actual mistake that you don't what you don't see is any case where a waiver is not found and there's a condition precedent to contract and if you think about this this makes perfect sense when a party contracts for it with a condition precedent what that party seeking that condition is saying is this aspect of the contract is so important to me that i will take on the burning i'm a short making sure that you comply with that aspect of the contract that's was the case in wayland and i think it's one thing also one make sure is we are not seeking to overturn whaling we think whaling is good law we just think that the application of whaling to our case by the trial court was an error according to the president that's actually established when there is no condition precedent it makes both legal and business sense for compliance with the such with the terms of the contract to be on the party whose performance is being sought they are the party who is closest to the issue they're the party that has the they're in the best position to ensure their own compliance especially in these large very complex contract cases where there are numerous i think there were several dozen subcontractors on this case what the apple e is arguing for is a standard whereby mere superficial compliance would shift the burden over to the general contractor and if by merely you know setting for something that appears to comply with the contract it then becomes the burden of the general contractor to it's mistaken as to the subcontractors actual performance and they do not then they let's let me back up i'm sorry if the general contractor finds out after superficial compliance by the so contra if the general contractor lets it and says this isn't correct this does not conform with the terms sub contract can say opes sorry you know your cracked will comply if they actually get past the goal post and the general contractor misses it they can either at you know that then then it becomes an issue where down the road if there is a case where that condition would be come into play he rather than in a subsequent on an obligation or an ongoing obligation and in  on the contract to maintain that whaling does not apply here because the contract language there prohibited the commencement of work until all insurance had been obtained while no such prohibition was contained in the contract between hammer and coleman case mrs latest testifies that when i got the contract it was for eleven thousand dollars and i explained to mr flynn that if i got the five million dollar coverage you want me to get it it cost me twenty thousand just for the insurance and i'm not going to do that and afford august thirtieth the changes have been named made to the point where now mr salinas is companies now received eighty seven thousand dollars worth of business i guess and then on that date august serious he gets two thirds of a million dollars additional presented to show that mr salinas belief that it had been rape was certainly reasonable as a surprise he knew that khan had waived the requirement and fact he had provided a corridor certificates of insurance on there's one million occurrence which occurred because first was so seriously hurt that cuts off one nine was that right i mean my personal johnson potus interpretation and knowledge of this insurance certificate is not as relative i'm sorry not as injury but access to five million dollars uncovered tollways weiss affair it let's say that the next day another person had falling or the next the another person on top of that falling these are separate occurrences and in aggregate coverage of five million as a chord helding will end mechanise charged with anything with with knowledge anything that upon reasonable diligence it could find out a discharge which knowledge of that and certainly just simply looking at the insurance certificate which was in the exact form they asked for accord one could see each occurrence one million dollars excess some bellow liability was zero or actually blank on those for procure and maintain insurance for the duration of the contract and the court upheld whalen and essentially said we were not artificially separate the obligation to procure and maintain insurance under the contract language here common could not maintain insurance until it had initially procured the insurance you know as they made that exact same argument trying to distinguish trying to distinguish their situation from whaling based on a condition precedent and the court in gaia rejected that liberates you can't maintain that in rights you procure it it's an artificial distinction waiver is not limited to condition precedent any  any provision of a contract can be waived and our case we're arguing that the five million general umbrella liability was waived and again there's no there's no case authority before this court that found a hammer weaved any contractual obligation of common to procure liability insurance by its failure to would it require common to provide certificates of insurance which this people did prior to the commencement of work or prior to cohen's being and the other to something been paid in full and that is different in or why should it not matter well i would argue that it's more persuasive that we're not reaching back into a close relationship that new on a critically  in early february of two thousand and two by the admission of position would be that their charges now as a name are much earlier but they continued to issue change orders and they never told galaxy it wasn't going to be paid until two aware by the way the sub never did get five million dollars in insurance and they got one million dollars per current's insurance that's after the accident how does that help you what helps is that they discussed withholding payments and they never did they rolled galaxie into completing the work at this point if they said rob you're rolling out one million dollars and we're not going to pay you galaxy could if walked off the job galaxy could have doubt done a lot of things but it's their internal my email suggests they talked about withholding payments amongst themselves but they never did in fact they issued further changes or issued a letter saying go ahead and finish the work in world pay you finish this punch about that because you did well or what i mean more importantly galaxy could have made an informed decision had they been put on any kind of notice that they might not get paid one hundred four decision b to do what what were their choices if they said you know you not going to pay you then galaxy can attract walk off the job if they're not going to get paid harry and it's but i'd suggest it's a real interesting argument that we should apply these two cases that involve no request by the general for to see a certificate of insurance here we have a request  provided it to mind for occasions and again i can't overemphasize this neck on even tweaked galaxies insurance to its liking my direct contact with the galaxies insurance agent and they even went on to say in an internal facts that i hope they meaning measure insurance galaxy's insurance agents can follow simple directions to our requirements so essentially there isn't much more galaxy can could have done then provide insurance of certain i'm sorry the record certificates insurance in the exact form that meccan asked for all the english yes for five million dollars excess contracting party in this to monitor the performance of the other side and that if you fail to monitor and if the other side fails to perform you are not and you fail to to bring this to everybody's attention and suan it or somehow till summer is attention  liability coverage don't review galaxy's accord certificate of insurance tweak it to your liking with the insurance company proceed give delancey its notices to proceed pay galaxie a considerable amount of eighty ninety percent of the work issue changeovers before during and after the mail goes incident and then about sixteen seventeen months after the injury say oh yeah we're not going to pay so in less important as the action and in our opinion their actions were to tweak the insurance very sophisticated level of insurance of knowledge you suggested with the tweaks that they made a question to every fifth when that professional engineer project manager with respect to contract compliance i have learned how to check certificates against contract compliance so here's a gentleman that's suggests that states that he big guys input on their insurance company and certificate and meccan didn't refuse or so that's not a problem that's yours they're essentially said sure we'll review it we'll see if it complies with the contract certainly galaxy's belief was a reasonable and certainly the conduct especially admitting that it was a mistake was consistent with wa upfront in the argument is it me kind made a mistake in understanding what they were made guns argument is that it was a mistake we're not one hundred percent convinced a resinous take or we're not saying that's particularly relevant we're looking at the conduct and the court's interpretation of that provided similarly galaxy and galaxy the general contractor interviewed in modified the subcontractors insurance by direct contract contact with the subcontractors insurance agent just have really two points to make on first is that i think it's interesting and this was points made in the brief was made here again by mistress apollo galaxies position is that it's actually a and more compelling case for a waiver in this instance because mick on actually reviewed certificate received in reviewed certificates as was not the case in wayland and  in way winning here and i think again it makes perfect sense in those cases by stating that they are that the the party that the contracting with is required to provide them certificates that show a level of insurance and then not even you know following through with making sure that they provide them some certificates i agree in whalen care there is no other inference that you can draw other the conditions that were present in the sub contract but in every instance where they'd discovered that galaxy was out of compliance they took steps to try to bring galaxy into compliance  galaxy seems to be suggesting is that by doing what they were supposed to do but by being mistaken that shows waiver i think that that's  an argument that supported by the case thought and that is dangerous in the in the construction context given the practicalities of these large projects the second  second point i'd like to make is that galaxy asks what else was galaxy supposed to do and i think that there are several things that galaxy could have done to ensure that we weren't here beyond even if galaxy again taking mr salinas at his word that he believed that that it been way all they needed to do was make sure that require that that change of the sub contract actually got into the contract that they signed  signed at a later day he did not do that there's no separate writing that indicates any waiver there's not a separate side contract that indicates any waiver there's not a communication between mr salinas and mr flynn  no sorry no any communication confirming this alleged conversation or this alleged waiver there's not even any internal communications memos notes anything else that you know indicates that galaxy believe that there was a waiver but you have is the signature by the president galaxy agreeing to very explicit terms for insurance galaxy  following through with its obligations under that contract and its context its conduct i think is clearly consistent with an actual mistake on its part and a clear