and whether or not it is a an insurance company such as american service insurance company has language in its policy which which indicates that when the policy proceeds have been paid that the duty to defend it is extinguished and the other issue is dealing with the propriety of the motion for summary judgment entered against american service insurance company and in favor of cosco and of course i'm going to deal first with the inner pleading argument the eight as court's well aware i don't need to give  a long history been a player but there's a very strong public policy favoring interplay there for a multitude of reasons first and foremost i think it preserves assets it was those assets for purposes of equitable equitable distribution of funds that's the reason the supreme court cases and u s supreme court cases dealing with inner polluters the whole purpose is to name everybody who could have a possible claim on the property and to allow the court to use its equitable powers to distribute it properly bringing everyone together  that way you not have a rush to the courthouse the first person that follow suit gets all the money in this case we had a million dollar policy of combined single limits american service insurance company this automobile accident involved  deaths multiple injuries for exceeding the million dollar policy that is why the american service insurance company and here for months after the accident filed the inner plater to give the money to the victims of this accident and to the court to distribute accordingly but also to avoid the duty to defend if there wasn't there to save money right absolutely judge no no no right no crime yes no no they're dead that is it and that's part of the best part of the public policy behind nuclear because that they couldn't do it under those circumstances that are factually dissimilar but there's your case is a case that we rely upon with that we think is very strong we cited a bunch of cases in our in our brief but here's the issue with all cases i mean i defending the remark and once they were done this became a specialist case and of course everybody in the pool lots of other people sue sue remark for the same type of injury and death points ones are said look we represent remark we defended remark we still remark we're policy limits why would we continue to represent remarked when we matter policy limits there is no possibility of us for him anyway since we paid our policy limits after representing america and i suggest this radically different and here is one accident go back again of bring you back to the to measure the language of the policy and that's the difference in this case our policy has a provision in it which reads this is on page one of the policy in the record however the company will not defend any suit after his paid the a political  unconditional surrender that's part two of the test and in this case the district where the circuit court failed specifically that american service made an unconditional surrender of the policy that's that's part of the order so would you concede the indiana insurance policies are allowed to state the claim expenses are included within the limits of liability so if you spend a half a million dollars on attorney's fees insurance you have a million dollars on attorney's fees representatives insured then it's well no that's not in illinois but but there are those i cited i cited every three cases from indiana federal court which in which no you took a similar language or knew both illinois and indiana law and found that there was no distinction between the knowledge american service is defending cosco right now so we are defending both right i did it but the cost is not insured under our policy so the idea of this the whole idea of intra pleader really becomes moot if they're not in sur words when you pay an unconditional payment to the court it's the same thing as if i were to write a check to cosco or to any of the other plaintiffs because once you make that unconditional surrender of those forms the insurance company can no longer get that money back or sentiments the payment of judgments or settlements that's not the language or policy and i'm asking this court to enforce the terms of our policy it's a simple contract actually public policy the only way that you can rule against american service no no no no and there's a whole fight going on for eight months to a year about this we offered the million dollar policy to every individual who had a death in that case i want to say i have maybe five maybe five that's maybe less but we offer that money in which again i don't think we will hear the whole thing to choose company i think it's i think again from a public policy standpoint i think my place position is if when you have an a loss of this magnitude you have to try you could just as easily give the million dollars to the first person that comes along yeah but the problem is that i think public policy should should favor do we need a peter to say let's let the court decide who gets what because maybe if they're in this case there are so many injuries that people are you know  due respect to the court i don't think it's asking a lot it's only asking the court for first a provision in an insurance policy which to individuals at arm's length and that's what the seventh circuit says i mean you obviously that's not binding on this property the reasoning in that makes perfectly good sense and there's appellate there's a there's a lot of pro court cases that suggest the same thing if if if our insured wanted to have a policy that would continue to defend him even after the payment and they could have purchased one but they didn't  additionally sure under serious on a seven hundred forty three record it says that's not american service apparently they were listed as an additional shirt under another policy and it's cost goes argument the other issue that they brought up there i think they've abandoned it but i'm going address it just very quickly is that the interchange agreement somehow with qwest american service to defend cosco they they raise that a couple zero but it doesn't appear that they raised it in the court here but to the extent that they do the other party this case never tendered their defense to american service insurance company contrary to what they argue there is nothing in the record to indicate that in a titling trust tender their defense they were paid it and in support of that they they did it they they they didn't tender they filed a petition to intervene into the action after summary judgment was already briefed the court allowed them to intervene and then they filed the same attorney then they filed a motion together and again the whole t have the insurance under the policy there's no case at all and i'm aware of this the argument that could be made that you can somehow assign this type you can assign coverage which is basically what they're trying to do track leasing was the defendant in the underlying case they follow the petition for over a million dollars in the circuit in this matter the underlying defense counsel in this that was defending frontline a lot of the other law firms fees to the point where eighty eight thousand the court to night that we did not get in evidence your hearing and and i guess the evidence or he would have been sure because we didn't have any evidence we were permitted to do any discovery at all on the basis of this move the petition we had a task the affidavit from tender as well so the attorney client privilege would basically go out the window from intensive purposes if it is i was going to be defending this rule in the same page to defend the underlying action but they didn't allow us to do any of that it's reports of  a loss to do any discovery whatsoever and as a result of that and a judge it was entered against american service insurance company for over a million dollars and the state in the other order we make it was premature in the first place to even enter it if we're going to claim some type of attorney client pending they get a judgment against american service rep for a million dollars and a separate four proceeding they get interest me against frontline for the same attorneys fees for about one point six million dollars so they have to j there were that were incurred by their concerts insurance company in defending the defendant of eighty eight thousand dollars i think that rules the ability for us to do discovery and anonymously in order to have a hearing which we absolutely entitled to we have to be able to have evidence for that here and for that reason i think at a bare minimum in this case with boras and anything else they dressed it has to be reversed so we can go back and have an actual esteem point on this has so many questions of fact summary judgment should never been entered in favor cosco they just threw both the facts out there didn't prove any of them in the court found ok there's going to be insurance under the policy so  american service received a substantial premium for adding non on trailers every time they added a driver every time they added a tractor they added a non on trade or they charge premiums for it now what are we talking about here let's talk about misters of peter's day this recipe to get up in the morning starts his tractor and goes to a rail line over here on the near south side he picks up a chance he's in a container box he moves it then he goes and he picks up another trailer and it chassis signature in a container box he moves then he goes and gets another one how many rows of data these drivers have they can have several different moves on different  trailers and they're moved time after time after time misters a pita did not own this trailer misters a pita moves trailers owned by what we call steamship companies like costco or hay pegboard or all sorts of other commission and the federal commerce commission that's called the trailer there are a there mover bill that they're put on trains i would stop with one by one last night as the container boxes went by and i saw cosco and i saw a hay pack loyce and maybe  this trailer is a non trailer in their interpretation of the policy is that it is insured for additional insurers who are listed on the pulse in other words a trailer would be covered a non own trailer but that contention in that  i believe the testimony from the criminal case is fairly clear that in fact what happened was mr was a pita failed to engage the brakes in a timely fashion at all in fact his criminal defense was that they the bus swerved in front of me and made it impossible for him to have stopped in a timely fashion so in other words the focus there is on the fact that there's simply no causation you could have to throw a thinker off the back of this the old policy and said guys we have a lot of additional insurance here american service please take care of them and didn't pull do so and tried to a s i to do so they demanded that they did it and i think there was an attack was going on is they had a different interpretation of their policy they've changed their interpretation over time at the turn we entered into movie admission and we had the summary judgment entrepreneur whereas an insured under their policy but only for don't think there's ever been a dispute and i think if we look at the reply brief and the opening brief and their concerts insurance company doesn't mention that paragraph instead they go to what they call a qualification they called it an exclusion they call it a limitation and that's the paragraphs one inch below and i think what's very interesting if we're talking about a question of ambiguity is the reply brief today in the reply brief and it will arguments today defense counsel mention the wrong exclusion he referred to paragraph chill a trailer will use with a motor vehicle acquired by such person that paragraph doesn't apply doesn't apply a the underlying record with regard to what policy they wrote and therefore this policy is pregnant with ambiguity i have an understanding because i can see the policy and i know the process right but i don't know how these truckers work how these again this is a standard course of conduct for a trucker and it makes sense and when you charge a premium for insurance company i don't know that insurance company should come before the appellate court and say they don't know what not a commercial general liability policy it isn't even the whole policy now what that means is the defense costs are included within in operate to produce the policy limits in fact you will see that the every day with regard to professional liability policies or at least legal malpractise policy and you know policy that you will never see ac g l commercial general liability for a policy in the state of illinois were defense cost recorded within the limits that is a violation of the illinois department of insurance regulations and checklists healer department of insurance has concluded that including defense cost and reducing those limits and it is limits defense cross within limits policy with regard to that seven circuit case which concerned illinois law and we certainly have talked about quite a bitch the the other language in that american insurance company which is citing our belief that illinois is not a tender state and there conserve astutely to defend is triggered upon the receipt of actual notice of a lawsuit against one of its insured from any source the only turned the tender comes into effect is what i call the anti tender in the targeted tender doctrine where you which i know we've talked about in other cases and it isn't issue here there have been targeted tenders to from cosco to a coleman's made repeatedly about the bills but of course the bills are not before you because american service has forfeited the issue it's not part of the record on appeal they have made no record before the scorch that would give this court any  possible basis to review the in forces and i think it's very telling that they have them absolutely they had at one point that they had them out as of december of two thousand seven no effort was made by a s i in any way shape or form to conduct any discovery with regard to that affidavit or the bills for how many months of the next time the first time that they did discovery rose march twenty fourth two thousand and there's no question around i think if you read the transcript it's hard to imagine because i was talking about the bills that were on the desk in front of them and i kept referring to which three or four inches deep and that's interesting again those bills are not part of the record on appeal before the court for the murder of this is the truth it was a two thousand and three chance reaction and several different judges supervised it and there was no effort made as as i pointed out until march of two thousand and eight to conduct a new discovery on these issues so i think the standard of review here is as i know you mentioned in the briefs it is whether it's an abuse of discretion and under all the circumstances particularly in light of the first for the church here because the pills are not before the court because they're not part of the record on appeal because american service did not provide that and again they're voluminous but i did briefly want to address that issue i appreciate the extra time that you provided to me today do you have any further questions that i can answer in the record of course there is additionally sure dorson and it was under serious and said we need insurance and the agent said ok well send us a copy of the application in by the way either any additional insurance the broker said yes there are in here they are and how did the broker do that the easiest way for the broker to do that was to send the previous year's policy to american services egypt rather than make his own list rather than have the secretary type it out he put it on the photocopy machine and se american service so when you're talking about the serious document that is in the record it's part of american services underwriting file with one of its business records it's part of the application so in other words when frontline amster for these entities to be insured in its application it ends by attaching a copy of its previous policy that's how it turned up in a s i so scuse me it's in there they had a copy of the serious indorsement as the less than they had a any number of additional endorsements as well and i think as part of the record there is a list of additional insurance upon section those a list of additional insurers were taken off the serious policy that's how it was done so in other words through the plates that were making here is that the a request for an additional insured indorsement was in american services american service but that is the problem with american service is the way they operate their policies with what they do is when you make a change and you make a request they have it on the computer and they had a button i see you never really get to see i did what it needed to do and it did it is best it could be provided the previous policy the previous policy had all these details a mere consumers chose not to follow the application and it for whatever reason and the reason i believe that evidence for the war but they provide it to the court that is admissible it shows what vehicle forty four was so there is no question of fact because there has to be an actual offer of proof there has to be some sort of evidence that issue i think is an important one but i certainly know that when judge henry was grilling me about these issues that were focused on extensively well it was number one making the record show you that serious indorsement came from what but number insure the insurance company has to know what they're doing because there may be some clients as you pointed out yourself that we don't want to insure the insurer pulling toxic waste rather than pouring a particular company need we have a conflict of who knows we have a right to to know what they're doing so  another very important point to counsel makes about the which which permeates his entire argument about the evidence ok the burden again i cite this case that very well established for insurance coverage the burden is on hi not me to establish coverage i don't have to establish a lack of coverage that's not my bird it's his burden to establish coverage and his argument that he didn't present any evidence of what people forty four is there's a real because he did