case has to be considered on its own facts and circumstances in this case it turns out i think that the critical factor is the first fact first factor is whether the policy the type of language used in the it though isn't that the issue the issue is for diligence is when did they look at it and what it when they look at it what did they do the issue for when they knew they had a suit the king can know your post says that if there is a real factor under this language sorry it says it's a neutral factor under the language the language of the yorkville the policy is the same as the language  the subject of determination by your client that so many of these cases m which they are a defendant were frivolous  which pretty much ignores the fact that this was a case where a woman was raped after being attacked while running through a forest preserve and had her throat slashed and was i think covered up with leaves and left to die in in the forest preserve as somehow being related to prisoner suits including as the apple week points out in the brief many of which have to do with failure to properly treat or diagnose medical issues in the penitentiary there's certainly a qualitative difference between these types of lawsuits and it strikes me as a little bit like an ostriches putting its head in the sand to think that they're comparable or that it makes a difference what happens in other lawsuits when you have a complaint and i think judge mason even referring to this in her in her ruling to put those two in the same category seems like an alice in wonderland approach your honor that one small factor of many i think the critical thing to focus on here is first of all what if anything is wrong with us if you are reasonable absolutely answer if you could answer our justice epstein's question it would be reasonable to hear this in any way shape or form with other lawsuits that have been presented to comparability the end of their fiscal year they had a deep dive on their case and they had important defenses in this case yes important defenses and the possibility of a very very large factor raised in favor of cover what was that what now does it matter that that the the m s m was getting maybe some conflicting advice from people within its own t let me just get the sequence out there's no indication that this case is going to be a big case when consulting with outside counsel and the primary insurer who is actually responsible for setting their own april twenty fourth two thousand and seven pena slee almost up i think a few weeks before a request for excess coverage comes from the plane everybody looks at it at that major defense does anyone ask the question and well if it doesn't work we're looking at as any reasonable person would a large group if it doesn't work million and sets a reserve for five hundred thousand dollars the day after summary judgment there and the information about what kind of rape cases he was dealing with i mean i'm aware of any case with a factual scenario like this t and somebody actually gave an opinion which apparently was credited but this was no big deal in terms of potential damages and it was hardly all the opinion he was also saying he's seen a lot of thrust of this case is that the person who should of at least initiate it whether he should have been looked at for purposes of filing a civil commitment paper dropped the ball so i don't know what those other when they said those other rape case i mean this is not something that we've seen reported where there's a complaint about the negligent failure to suggest that he at least be given a lock on the issue in the case when somebody dropped the ball so that he was able to commit a third second saw so they had really is it reasonable to say you know this is really a little something we don't have to worry about or heart is just one of those there was a belief within your client's company based upon professional evaluation that given the nature of the coverage that this wouldn't even fall within the coverage there's a contested fact in that point  testimony but all those people said that conversation never happened so that's a critical fact well the only shows that is there well i mean where's the diligence and looking at the the large verdict and that's why you buy access coverage if you believe the kelly bureau then there there must have been a review by these executives of the policy understand this policy had an exclusion on it when you did this was a renewed year after your policy and in the two thousand and four two thousand and five year period the exclusion wasn't put on but we knew it was it was placed on the policy and there was a of the kids because they had to do reserves every month it was important to them because they had lots of these cases and they did have a deliberative process every month with counsel with their primary insurer because it was their money  incentive for insurance companies or people who have reserves that they have to put up to evaluate the case with a little different i mean the people who are seeking damages because they have to put less reserves and that puts them in a better financial situation this net the way it works i don't think so i think the economic incentives are exactly opposite one can't med part of this process it's going to million dollars on the line they have to go incentive not to tie up money if a fake they might not have to tie up even if they end up underestimating the ultimate value of the case in the long run now where that runs into a problem is when someone's asleep at the switch and doesn't know the five excess carrier because then you just cut off the ropes for your safety net but it's all the same people looking at this looking at the reserves they're looking at the value of the case and when they see the most of the self insured retention at that point everybody's looking hard at this and it's a confusing policy and we know that because when when we do give notice to assurance assurance looks at it and says the same thing there's lot of weight but are you is that what you get past that you know you look at what this insurance company did yeah it's reprehensible ok so but that's only if we decide that the honor to for review that summary judgment wasn't properly granted you know all right now then you suggest though that the notice is governed by illinois law but this late notice provision or the i'm sorry company is notified they have to tell you within forty five days they're going to rely on late notices that with virginia stanton provides that's correct that's a waiver special ok but how is that why does the for ginia  different on the reasonable time issue that we've been discussing so there is a difference in the waiver statute because we don't have a waivers that shit like that knowingly and there is a difference in the standard for bad faith in virginia we keep you can wait yes no yes first thing he does is he calls up the plaintiff and gets not kinds of trouble there and then he starts he says i'm denying coverage based on the exclusion and he starts and then he said the october sixth thing just says that i don't think anything much is happening in this case we better get on with the night and so finally senses denial that you are october sixth i believe to that there was actual notice on the ground there was nobody at the insurance at western europe and new york a bank case there was doing anything until they got written notice in the court but it was important that when they did get written notice they did sanction was was going to be imposed and and at that point you are entitled to a review of that you're entitled to an explanation being granted now if it's judged jumped the gun a little bit on that there's a way to deal with that what that that's the tail of the dog for every chance they have to angry judge who's going to preside over their trial they've already turned down two very strong defenses they were looking at you know at that point an unpleasant file and that's right you know not surprisingly their defense counsel had sat april two thousand and eight this could be a big case and then you had sanctions motions that  on point and the fact that you have important offenses matters and evaluating when you're going to look at that policy and give notice once we got to that point april two thousand and eight there was strong two months but the process during that two months is having counsel say don't even produce this for discovery taking that awful chance because he's so convinced there's no cover their primary care saying there's no cover but they didn't stop there then well does that i'll talk about that the second but i think if they if that were the case then all the cases we both studied were talking about access policies and what the notice provisions say and how that we're dealing with this sanctions we've got this case that's going to have to be decided quickly tell us what your position is well i i think the timeline here judge has to be taken into account in the thousand one million they don't help ok what happened in the interim on july fifteenth we had asked for the fence council's current evaluation and discovery summary and some motion they just presented me with a case i asked for what i would ask for which is what's been going to discovery what's the evaluation they told me i would get that i had no reason to think i would nine so when two weeks later there is a letter saying what's your position what's your position where about the self ok you know within a reasonable response since we're talking about reasonable behavior wouldn't a reasonable response be you want me answer we haven't got anything hold everything till we get the answer in the you get an answer from us well that certainly would have been an appropriate and what's the defense for for just putting a stop putting everything with who were asking for what you're you're implying here your client's position is was an unreasonable request under the circumstances was there any reason not to say wait a minute that's not a reasonable to ask us to to do this in this time thing and doing something else and at a push it what you say but look at what we're talking about here but here's the situation where there is actual notification if there is a settlement offer and the table if is seriously considering and your company knows that at least from their point of view your insurance point of view they believe that you have coverage and they're saying time is of the us we have to have an answer out of the house and if there is a good response available as to why you your client could not answer the question posed in that letter regarding the settlement you see the question is why didn't you using the word notify them of your inability to give them the answer within the time frame and as a good anybody can see there were things that if people were acting would use the words of mr fyshe netsky used to plea the best sides could have been should have done differently in this case with this case turns out of the five factors in new what leads me to it to say i'd like to know what real prejudice there was to your client when he was to of the potential settlement told that it was time movie essence and make sure those not to respond to the letter in any express way absence of a response to we have this time this is of the essence settlement offer out there and we need to know what your position is and your your letter back they wanted good written could have said we are still awaiting something so we cannot ensure your letter as to the permission or as well position because we don't have sufficient information yet information so we can take a position now and they acted without you without giving you very information then your position the prejudice would have been a little different because you would have said waves will evaluate it but we're not able to evaluate it now and if they decide that point to go forward in response to that then that puts you in a slightly different and slightly better sarcastic and stone is they weren't going to give them the information he asked for what she said is exactly what she meant unless he's putting his two million on the table right now he has no say in anything in other words you've got to commit to paying the fine in the settlement before we're going to tell you what the case that questioning that your guest once they didn't give it to you i'm talking about a response saying you didn't give it to us so we can't answer your question and maybe you want to hold off until we get this information so that we can do exactly the type of analysis that you just detail quite reasonably would have to be done before you commit to a three and a half million dollar settlement well would it ever be reasonable for a commercially sophisticated and she said i've never seen a case where the insurer simply doesn't look at the policy for almost two years and then is found though that the diligently that's the thing the two factors judge your point i diligence there was none they didn't look for the  says that the policy should not be treated like other true axis policies which given her discretion because it had that language in the court says it's two things it's the nature of the policies and access policy goes into what is a reasonable time in this context simply applying that principle that reasonable time it matters that you have access also but also the court points to evaluating clock a bull exhausted a valid  this case is reasonably likely to come within our limit then we have the right an opportunity to participate ok so they've already you know reading it as a whole and you also of course have the same exhaustion requirements in the policy in this case so the worst case could not be any more on all fours and it doesn't make the factor for stock or neutral it puts it in favor of n h l because right so it's not crazy for the joint second on july ninth to say things are moving fast we need your coverage we need to know whether you're with us or you're going to be against us on that s and  they're trying to get up to speed and your general counsel says basically pound sand what you put two million dollars on the table there's actually a point to that  do course and we are trying