requires the policy doesn't say that they had to be provided to third party beneficiaries the policy says that they had to be provided to third party so the question is what constitutes third parties under the if you didn't answer my question w agreement to provide a bridge i don't know the answer to that your honor i don't know whether or not they were third party beneficiaries of the contract between appraisal and helco financial but that's seventy two and one seventy four that the appraisals were provided to p treat with knowledge and quote written consent of appraisal and valuation so these are preserves that were provided pursuant to their terms with written concessive different let me ask you is this an underline complaint the patriot complaint alleges facts within or even potentially with the policies coverage the insurers duty to defend arises even if those allegations are groundless false or fraudulent no one let me ask your question professional services we're talking about here are much more than the summary appraisal report it's the evaluation of the value of these assets the fact these loans this entire bundle of transactions everybody understood including  claims there's not a claim for a third party beneficiary breach of contract in the underlying case it's for negligent misrepresentation and to establish a claim for negligence misrepresentation of what the patriot injury b have to is that the nature of the relationship was that it was intended and understood that they would be relying on the appraisal and the fact that apollo she says all they have to do is be provided with the professional evaluated the same time as we are evaluating whether or not the ensuring agreement is satisfied and here that the crux of it is your honour's of recognize is whether these services were provided to a third party here you have to construe the underlying allegations in the light most favorable to cover charge of duty and if there's any possibility that they could fall with uncovered so at your honor asked about whether or not there was a finding in the underlying case a summary judgment that there was no overt consent at the y unless there's written his son not intended to be used by anyone other then he'll call financial you've got a real problem in that case on the question of indemnity i'm sure libby will make the argument if such a finding has made me underline case that absent written consent these don't satisfy the coverage bridge here but on the duty to defend which is what we're hearing dressing can we understand what his injuries are and we understand why you're ok and your honor there's another there's an additional alternative reason why even if that were finding you're still should find a duty to defend and there could be duty to indemnify notwithstanding such a finding in the underlying case and that is because he'll go financial who received the appraisals in the first place is also a satisfied by the provision of the appraisals to pick a fight liberty wants to read third party as meaning nani should go a preschool and help the financial or separate entities they are third parties to each other the third party requirement is there so that book or appraisal can't lend on its own appraisals and then bridgepoint if liberty wanted to require that an appraisal that was provided to another insured not satisfy come up on and possibly that it hasn't really it i don't know it hasn't come up to it in this context the in co case obviously is is a case that addressed that but the import of the eco case on this issue is that there is a duty to defend as the tenth circuit found where professional services are provided both to insured and other third parties simultaneously there's a duty to defend as the tenth circuit help with respect to all misrepresentation is that right with respect to go appraisal unhook evaluation that is correct that's it that's one count that's one count and that's what they're defending it's and they're actively defending against those claims and again this is something out of professional services are defined to be various activities that are identif services are defined to be value opinions in support of asset based lending that's a relevant portion for our purposes which are provided by the insurer to a third party for monetary i can that's where ish so not been eight that you're being with so here they can't get out of the underlying case by saying we said this was only for appraisal and nobody else's use but then we come to liberty and liberty says well you're saying it's only for helpful pre sold no one else is you so we don't have to cover you because you have to provide it to third insured that was its client in fact this policy covers claims arising out of appraisals provided to third parties it doesn't restrict the potential plaintiffs the potential claims to those who are clients or who signed the  valuation that satisfies the policies very narrow our requirement that they be provided to a third party and your honors there's there's another duty to defend standard it's important to keep in mind  the illinois supreme court in american state insurance company versus colonus it's one seventy seven illinois second or seventy three at four seventy nine the supreme court said quote provisions that limit or exclude coverage will be interpreted liberally in favor of the insured and against the insured and here liberty is attempting to use the word the phrase third party in a way that limits coverage in fear for the poor is constrained  was essentially heartache to provide liberty with the relief it seeks would be to say that they sold hotel a policy that covered appraisal malpractise but only if the appraisals were given to a non insured who signed an engage letter and weren't provided to another insured at the same time even though liberty didn't write any of those  i believe in lee the illinois supreme court has held that the purpose of the declaratory judgment action you could go beyond the eight corners the four corners of the complaint in the four corners of the policy to determine whether or not those facts are correct so that if it can be  case that's exactly the case but what i'm saying your honor is the result of those services the report that they provided to their point will call financial is who they provided the services for what then built the financial did with that report shopping it around to get loans doesn't change doesn't convert the a bank sixty billion patriot into someone who had services provided to them by  claims the complaints all of the evidence in the record establishes that the services the initial services that were provided were provided to local financial there were a number of different london transactions that going on here but the financial and they're all parties to the insurance contract and one other place where i believe mr sypher misspoke wasn't simple those don't cases that interpret what they're calling means in this context there's a whole host of tests in illinois and outside of illinois that says if third party is someone who is not a party to the contract the contract here is the insurance contract and both killed the financial and they can't go appraisers their insurance of the contract so they cannot both be an insured i e a party to the insurance contract and a stranger i e a third party to that same insurance contract so therefore there is no coverage if the services provided help a financial and legal way to illustrate this would be in the terms of let's say there's a professional liability policy for an auto today i want the burden of the court with repeating all of those arguments although i would like to emphasize that a number of the questions today have focused on the policy language that i really think is the key to this case that is the definition of professional services which requires that the services be provided by the insurer to a third party and i think the word fee in that definition is is really the key when analyzing whether coverage exists we're analyzing whether coverage exists for a particularly insured as of today those insurance or appraisal and valuation those are the insur instance in the record your honor indicates that they provided those services to local financial with restrictions or on the provision of those services that they could only be used by her both financial and could not of professional services to the bank i would say that is not the provision of professional services to the bank to the services were provided to bilko financial if appraisal and valuation subsequently give consent for h financial to use those those services that report for some other purpose and fresh someone else the while and therefore some they can open themselves up to potential liability for negligent misrepresentation by doing that they cannot as mr orders indicated open themselves up or open up the policies for coverage simply by giving that consent at a later date it gives me a hypothetical where that would be wink that you would consider a change in the you is not what i'm not sure your honor i would i would have to think about that that's the problem is that's not that this is the situation we've been confronted with the situation we've been confronted with is  appraisal and valuation provided the services the financial and financial then turned it over to someone else and there's no indication of when consent whether consent was ever given nominally radioing haitian consent was given it was written and he's worried about stage process the the professional services are provided to local financial stage one stage till the ok financial at some later point firms around and uses those reports to ped theory it was first excess insurer in that policy period following liberty's policy in that policy period continental casualty it was also in excess ensuring that policy period  claims for coverage with respect to the two thousand and nine two thousand and ten policy period continental casualty move this court to dismiss the claims against it to dismiss the the appeal as to it and that motion was granted claims asserted against it going to come to you to request loans against we did appraisals that were going to be prepared by local appraisal most starkly in the allegations of the patriot complaining paragraph one sixty seven your honor ask appraisals were reviewed and approved by senior management hueco appraisal and valuation before they were delivered to hueco financial with the knowledge and understanding that they would subsequently be forwarded to patriot at the time we perform us understand that would be for the whole goes he treats everybody seriousness everybody knew the way this was going to work certainly according to the allegations of the complaint h b b early on its complaint around paragraph forty talks about meetings that were put together before it opened up it credit facility we will go appraisal representatives where they said these are the folks who are going to be doing the appraisals that you are going to be presented with when you decide whether or not authorized loans patriot talks about its veto power that it would choose whether specifically encouraged and intended each b b to rely upon their appraisals in determining whether to enter into the credit documents and their after to advance funds under the credit agreement so the allegations of the underlying complaint mean that what they did falls under the coverage provide office that's correct so the issue then becomes off doom does the bank fall with the definition of the third third party under the facts of this case provided to a third party is broad that's my point it's broader so i may be shopping around this appraisal that i got in a property but it wasn't provided for the benefit of those banks it may be have only been provided for the benefit of me but it it was provided to them here which you have is you have these appraisals that were both provided to each of you being patriot as they allege and again each b b alleges it was provided directly hopko appraisal and that's in paragraph one or not and there was also the intent of the relationship was to benefit each v p and patriot with these appraisal so you have both being satisfied here which is why there's liability and service and the underlying complaints make that a bunch