please the court counsel your honors my name is tom costello and i represent the appellant's in this proceeding james roeder and the township officials of illinois risk management association  intellectually stimulating insurance coverage matter but the issues are relatively simple at their heart if application of the legal doctrines a somewhat complex when you get into the nitty gritty the organic or was at risk of losing the organic certification because the water flowed in and brought you know other herbicides and chemicals on to his farm property so country insured mr roeder for his farming one he issued to mr roeder now the underlying complaint had numerous counts and it alleged in the alternative that mr owner took some of these actions is his in his capacity as township i would commission but the  actions not only were taken under the guise of his role as a commissioner but also violated an easement agreement between the underlying plaintiff and mr rogers farm property for you know water flow so essentially in essence he wore two hats according to the allegations of the underlying complaint procedurally the underlying trial court ultimately ruled the country owed a duty to defend both m in mr roeder based on the allegations of their actions taken his farmers country did defend and paid for the defense of mr probus and had their that's not part of the appeal what they didn't do for some reason is they never agreed to provide to participate or pay a dime towards the defense of mr roeder in as a result torment stepped in and provided his defense has been providing his defense coverage provided a duty to defend in country only primary allegation one of the things that is not in dispute based on the briefs your honour's is the general principle of illinois law that where an insurer owes a duty to defend any you duty to defend mr roeder was required to do the same thing so then the question became well how do you determine his obligation as compared to countries obligation and there's a lot of he saw in the briefs and we'll talk about it in a minute how that s a motion for judgment on the pleadings at the trial court level asking the court to find one country duty to defend mr roeder to their obligation was primary in three they own reimbursement of the defense consta country had refused to do so the trial judge ruled correctly that country did zero a duty to defend based on that count four but the reason for the appeal is that the trial court's ruling ben i think got respectfully got it wrong as far as what the scope of the duty to defend was one of the points that we make and it's an important one is that the issue of country owing a duty to defend was determined by the trial court and that his not bent appeal we did not challenge the trial court's finding that country owes a duty to defect we only challenge what the impact of that finding is and what the scope of countries obligation is what your position is the i'm sorry if your position country owes and you need to defend the entirety of the complaint the trial court got it wrong by saying that country only had to defend an appropriate basis whatever count alleged to mr roeder and it is a private farm so one count out of the three part of the appeal and that the duty to defend is not a law of the case that's the done the township for us is the only department of revenue case it's the nd district decision in two thousand and one where a township sought any tax exemption for property that at least it ended up in a suit against the department of revenue other department challenge to the trial court level whether the township had standing in the court found that it did but it didn't enjoy the tax exemption the township appealed and the department of revenue on appeal argued they didn't have standing just as the head of the trial court level but the public court found that because the department of revenue had not filed a notice of cross appeal it had not preserved that issue for appeal so similar situation here is that the duty to defend is the law of the case the country spends a lot of the argument in its response brief arguing that in no duty to defend to begin with which one is incorrect as we explained in our reply brief but to i don't think the issues properly preserved so so it's a form of self insurance pool countries policy says it will be primary unless there is other valid collectable insurance it which point it says it would be access unless that other policy was written to apply an excess basis compared to countries so two things can occur where country is primary one there is no other valid uncollectable insurance or two if there is other insurance it's written to apply expressly access that's wrong particularly in the case of state farm versus du page county rd two thousand and eleven nd district case that address the issue in the argument from state farm  i'm not sure if there's a supreme court case that has reached that issue your honor there's no case that has held the opposite if you look at countries response brief the case that they tried to cites you support their argument the torment should be considered or their insurance is a state from france to pinch county case which i can't understand why they cited that because it was the opposite scenario to what we have here wherein state farm was country their state farm paid the whole way for defense and indemnity then tried to collect back against you cage county and the appellate court found well du page county is not other insurance so they can't collect against you p any public policy that would lead to your honor's to decide it any differently than the other appellate court districts have decided it is explained the driving public policy behind those decisions was the importance of preserving public funds and so the idea here is that we have a contractual basis by which country has volunteered that their coverage would be primary and there's no other insurance that would permit the country to pass the pool would constitute getting insurance that would leave some of the tour immunities some of the decisions which may have included in their district decision i'd have to get back to you on that look at that and said well risk management tools is not insurance this is still the public en own funds so the public policy used protect and preserve public funds so where does that leave us well country has a duty to defend they have to defend entire complaint and then they have to be a primary source of coverage because there is no other coverage to which they can be accessed so what happens not poor my his paid every penny of the defense for mr roeder we're his country is owed to duty defendants paid nothing so we included a claim in our counter claim to countries complaint asking for reimbursement of all of those defense costs and this is where a lot of the space in the philippines is also dedicated your honor says well what theories or what legal remedies are available to allow recovery that i think there are two that apply here is that on appeal here mr yes yes your honor it is one of the our issues that we raise on appeal is countries obligation to reimburse torm a for the defense costs that torment his been forced to incur defending mr roeder and so on and so leverage ruled by the circuit court the circuit court really didn't make a ruling despite that issue being addressed in the motion for judgment on the pleadings and then again in the motion to reconsider i think arguably you could say the trial court addressed it by saying each of torah and country have to provide a program to share of  our briefs we addressed book two theories one of reimbursement and one of equitable subrogation the driving principle behind the two of them is relatively similar which is set one purty in those cases involved insurers but here we're talking about one insurer and then one risk management pool but the issue is the cost of defending a member on the one dollar hand and insured on the other so the legal theory should apply equally to the both under either of them if one party that didn't know the obligation or would be excess to the other had to pay it it can pursue reimbursement of that amount from the primarily responsible and in here that would be country the elements are pretty similar and we discussed in a more detail in the briefs and have to answer questions but i will try to keep it simple and not get into the legal nitty gritty about when reimbursement would apply or when equitable subrogation would apply so i'm really and furry inferring point you brought up on be basically the ruling on the issue of reimbursement it did not rule that we were entitled to any reimbursement specifically by a monetary amount but that's one of the reasons that we moved for reconsideration and the court just different types of policies here one mr what country mr roeder had farm insurance policies marginal homeowners insurance policy to provide coverage for bio injury and property damage caused by an occurrence s always they always bow where the insurers insure the same loss or damage for example in a car accident they insured with a bodily injury or property damage arising from the car that's why we would never be providing insurance for the wrongful acts of mr roeder as a township in his township the pants need so you can't you're putting out apples and oranges and all the other cases when the question of like construction contractors where someone a distant rd someone or the same type of coverage or property damage caused by an occurrence here we have different cover they don't insure him for his property damage caused by an occurrence they insure or his wrongful act and a township the path that caused was that the buying so we were never over the same things no matter what the allegations were because there's different different risks different lost that's why none of those gates are reflected well to that this man we did there is an appeal that they initiated on a duty to defend issue and a court found partially against them and were defending that appeal pointing out why we think it's not a fine fine or properly appeal but if it is why the trial court either correctly ruled in part but also correctly did not should the found any duty defend my country and the principle reason again i heard your cross appeal most carlson well we didn't file across appeal because i don't think in that case in the case law that on the cross appeals where there is partial relief against the  so we're not raising a different issue different appellate grounds we're addressing the same issues that they're raising but why out of that same course that's why there is not a requirement that there be across appeal against you so to speak on count four correct yeah partial ruling as well you're going to have to depend on or according to the truck or well we've it's not a final order we filed a declaratory judgment action that hasn't had a final order so and then it was appeal from in or now before the court here to decide whether that was correct or not defend is already before the court on the ruling from the trial court by their by their appeal so you don't every time that someone file if i just in my experience that people go in both  when one party when their duty to defend a ruling and appeal from there is not out across appeal went on the issue is already before the court by the appeal ok and i think that's addressed in the cases when you look at the case and he cited that where there's relief against it there is only relief against country then then that would make and that would make  e but there there isn't here we have this we have an underlying lawsuit again that point out only seeks basically injunctive relief it argument count for when i start to focus on the label of a neighbor injunction against neighboring farm operator for breach of easeme actions taken this just the fact that mr roeder might also be a farm owner nearby doesn't mean that he can't have engaged in conduct as a township official it the fact that he may be engaged in towns official that benefited him personally doesn't delete from the fact that it's alleged that he only did the violated the easement agreement by causing one of his one of their employees to enter the property without permission and excavate and dig a ditch out so it's specifically alle official the business exclusion of the policy the reason why it applies is because of course you would have to get to the exclusion of there wasn't potential covered the st place at least st asked that believe that there is some potential coverage  so and a business is defined as any trade occupation profession and here which includes there is occupation of township commissioner so if it arises out of or in connection with his i don't think he was either and i don't think he was either so i'm struggling with why he wasn't i'm just struggling with why he would have violated his own personal promise to allow access to land when the landis of his and he didn't sign the agreement but i'll struggle with that i'm going i make a good point your honor and that's another reason why i think it just may be seeking injunctive relief because seeking to enforce something that might be really maybe is a or associated with the highway commission know it's part of the highway commission he's a private business that hired by the paid for by the taxpayers of the of the community they it was and you see that in the the letter annoying other accounts from the attorney for the challenge township who makes the threats against mr and what they'll do if they don't you know comply with their we comply with their demands and that they township you know that he's the attorney for the township he's acting on behalf of the township we want to apply insurance principles or not insurance where you know or where you are insurance sometimes but sometimes for an insurance and any event they win they train at their excess again this is for different risk so we're official versus a farmer's property damage caused by an occurrence they they admit the fact that their own policy doesn't even say that they're excess in those circumstances they're only they're probably going says they're excess when it's the township itself that sued not one of the members of the township there so their insurance is primary by its own terms because it has no excess provision in it countries policy does have an excess provision in it and this gets also the other issues of subrogation an ethical contribution or subrogation which basically there's no real theory of reimbursement in homer simpson and he the supreme court set forth the theories of ethical contribution subrogation indemnification you wouldn't need to have separate theories if you just had a reimbursement here you just have one reimbursement i'm seeking money from you because you owe it before me we have no relationship with harm a country mutual does there's no indemnification possibility is no fiduciary relationship there we can't meet any of the elements of you know ethical sense of contribution or subrogation or not which sometimes require one to be a primary unsure iversen excess and sure they say they're not insurance but more often morrow more important y what you're looking at the same loss or same risk insured the cases that they cite go to the issue of where it is the same loss it's same property damage caused by occurrence to that building that was being constructed or here we don't again i'm right p d myself about the wrongful acts are what's covered or tolmers policy which the court found were alleged here for it which is not the coverage on in the country policy so you can't have it's not there's can't be one over the other because they're apples and oranges they're different and that's again it gets to the whole the whole line is this  is a rather unusual situation because all those cases involve virtually the same risk or same losses and here they're not so none of those that's why tora tora none of the cases  as the township highway commissioner was she caused other people to do intentional acts that cause this situation for which only inju relief is sought so bleak for all those reasons the court if it doesn't dismiss the appeal for not being a proper peaceable order potential coverage for mr roeder in that capacity in connection with this lawsuit ok mr i have a question mr carlson you don't mind here you know it's based on what was raised alleged people can obviously individuals any time someone's operating a business they also are an individual and if they do a conduct you could say that they were like saying the whole office is like a homeowner's policy that they have the same business exclusion if someone was operating a business and they caused by introduce someone they would would normally be covered but the he yes and here so since the exclusion applies to any conduct arising out of or or in connection with the business and it's alleged that he did it or it's only ledge the only for the complaint in the c h case does allege that mr roeder was acting in his capacity as a parent agents of the campers are the campers insured b country mutual no so if he was acting as an agent for them or as a highway commissioner how how does the judge make a finding that there's some wondering isn't it there's a factual inconsistency here in the complaints and the judge just by its yeah i guess i would agree your honor with that i mean i don't really have the  answer that maybe everything wasn't address proper that probably gets to the fact that maybe this was too early an appeal here before these issues were resolved  because now it no matter what if you know if you ruled against country you have to on this record have to be sending it back for further proceedings i don't that country is involved at all with the campers i mean your honor yeah yeah no they're not they don't they would they don't share the campers so they wouldn't be and that the complaint i think your honor i'll make this brief there are a couple points i want to touch on justice right st off i wanted to touch base on your questions about how does a country policy for mr rotors a farmer get involved here is my view on how and where i farm owners themselves but the campers are not firming the wind in so the to get to mr roeder the plaintiff allege that mr roeder was acting as a campers agent when he was farming the property it is such violated the terms of the easement agreement so essentially the plaintiff alleged the terms of the easement were binding on mr roeder because he was a tenant farmer and agent of the campers and that's what gets us to one of the fundamental principles of a duty to defend is that the court is required to take the elegance of the complaint as if they were true indeterminable if this these allegations were true does a potentially fall within the coverage of the policy in clearly it does because we can all debate whether alternately the plaintiff sub or soon would be able to prevail on this claim that the easement was binding on mr roeder and that he could be liable for a violation of the easement but for determining whether or not country owes a duty to defend the the court starts with assuming that those allegations are true and country issued a policy to mr roeder that insured him for his farming operations they argue about a business pursuits exclusion well but he doesn't mention is that the business pursuits exclusion says this does not include farm why it's a farming liability policy so really we're getting into questions about how can the plaintiff service and ultimately prevail in this allegation that the easement applies in my response to that is respectfully or others we need to ignore that and determine if that were true would it fall within the policy clearly it does but again respectfully in your honor just so to think you properly asked a question to country's counsel where is the cross appeal the answer cannot be well we didn't think this was a proper appeal so we opted not to appeal that the only issue that's on appeal is mr rotors and hormones appeal of the decision that the duty to defend was limited to a pro rata share of the defense based on the counts so that's all that's up on appeal with regard to the issue of how we can recover the amounts of torment he'd to defend mr roeder when country was ordered to do that and refused to do so even ecan two thousand and eighteen when the court ordered you have a duty to defend that may not have been a final order at that time but if one of your honor's orders need to file an answer or a supplemental statement i going to do it i have to follow your orders whether they're final or not whether or not there appealable is a separate question here the trial  it was finally disposed of your case but to agree with any of country's arguments about well none of these legal doctrines would apply in a lot of reimbursement because torne is not an insurer when none of th requires that the parties owing the defense obligation be an insurer versus a risk management pool versus a self insured entity would be to say country you didn't follow the judge's order you were ordered to provide a defense three years ago you've done nothing you've paid nothing you've done nothing to participate in the defense it's to condone that and say that you know because they waited until the final order was entered an appeal that they were bound to follow the court's order or now did the court's order in the court was correct in finding they owe to duty to defend but there's no avenue for the party that heat the entirety of the defense when it wasn't supposed to required you can't get any of that money back from the party country property to maintain a tile that is on the spencers property so it doesn't even discuss the damage or prohibiting trespass onto and respectfully your honor i have to maintain my position that that issue isn't here that was never appealed and all that but assuming it is before you we have to deal with what's alleged in the complaint in your questions are excellent ones that i cannot answer because there's not enough detail in what is alleged to answer those ultimate questions we have to deal with what's alleged which is that there was this easement the terms of the easement didn't permit v the physical changes to the land that are alleged the physical changes to the way and that were taken to get out by mr rohner in his capacity as a farmer in addition to using his authority as a township highway commissioner to do so violated the terms of that he's many these are all excellent questions it would be part and personal of the defense of this count in the underlying case and the answers to those would be certainly relevant to whether in to what extent apparent agent of the owners of the farm and that in his role in the tenant farmer in egypt he was bound by the terms and thus by lead to the terms of this easement when he did what he was alleged to do that's the hook and that's where i feel like you're struggling your honor to find the connection and if he if you was it he named party to that easement how in the world could he be liable for violating that easement but my response is that we a duty to indemnify that's a question of whether or not five mr roeder is ultimately going to be able to be home by able for breaching the easement that's a matter for the underlying court to determine is an issue of liability or an underlying jury