warning thank your honour's may please the court i'm jonathan sternberg i represent the appellant the whites company whites appeals in this case from a summary judgment in the defendant insurers favor on whites as claims for equitable subrogation and unjust enrichment this was error and should be reversed and remanded now to fully appreciate why i think it's important to start since especially it's a fairly complex case a to understand the triangle relationships that led us to this point the first side of the triangle is in which whites for both its subcontractors had a contract with hyatt to build a project for hyatt in florida as a standard then in the construction industry the contract specified that whites not subcontractors on the one hand and hyatt on the other would waive the rights pursue claims against each other to the extent that it had obtained property insurance for any such damages the contract also specified that high it would require its insurers to waive all rights of subrogation against whites in the subcontractors now the now the third side isn't really a side it's where whites and the defendants who have no contract with each other but still through this industry standard triangle of relationships height would look first to the defendants and their insurance before whites would face any liability this lawsuit arose because the defendants failed to follow through on their end of the bargain they left whites to pay a high of fifty three million dollars in damages that expert testimony below showed were insured damages for which the defendants would be liable and often justly and they were able to get away with not paying fifty three million dollars that whites had to pay instead that's unjust  a benefit on the defendants by paying damages to which the defendants would have been liable to the construction insurers should have paid yes correct your honor which is who are the defendant case and your theory that the post construction insurers your client this morning that they that my client they hate not named insured in those this as a matter of law the defendants were bound to pay something under that triangle relationships the they failed it and or refused to do so and my client wound up paying that instead  thing that's correct and what the policies don't just cover you know quote unquote post construction it's any ensuing loss from earlier damages that are we have found out post construction and of course policies contain limit to limited coverage didn't cover faulty workmanship and some of the apparently faulty workmanship right well that's that's what the defendants of claim but again in the summary judgment context we have to view the facts in the light most favorable favorable to my client expert testimony which the defense actually doesn't mention at all in their briefs because it's pretty inconvenient for them is that sixty nine million dollars of one hundred million dollars that hiatt claimed as damages were insured damages under defendant's policies and while i know coverage questions or issues of law whether i mean that that is the scope of coverage is an issue of law the expert but it specially and you know really complex engineering cases like this has to determine whether those are in suing losses or whether they're faulty workmanship and he determined that they are covered in suing losses in this claim in this case you're representing also yours in their carriers  the assignment documents themselves they are in the record yes your honor pages you mean the actual assignment contracts i don't know that they're the the are those facts how much is assigned and what's the undisputed how do it on page twenty eight of our brief there's a chart which explains that pretty well and i'd ask the court to turn to that if you can we were for another in short of zurich's who was one of our subcontractors eight hundred ninety one thousand dollars which is two point three percent of the amount over six point five million so in total we have to pay back our asinine orders just over twenty four point five million dollars or about fifty one percent of the total cash that's been infused and that's that's sorry that's going out of on the chart forty seven million eight hundred thirty eight thousand dollars which is the total direct in assigned whites restitution recovery rights and that's your response to the double recovery argument the absolute maybe twenty four million you say we have to pay twenty four million yes around twenty four million to your insurers and to this subs and so us are subs and by necessity our own carriers in our subs carriers are all port part of this one group it is that group who is treated in equitably and you know instead of having five lawyers up here arguing for five different parties  we have one instead and it's that that's not a double recovery the whole group was treated in equitably furthermore settlements are favored and we have there's nothing at all wrong with whites who has to take the risk of this litigation under the assignments when it is us who are responsible for going to the district court responding two point six million dollars in lawyers there for coming to this court briefing an argument for all of that we're certainly entitled to some valid only for whatever equitable subrogation right we can only enforce whatever equitable subrogation rights height has yes we step into the shoes of hyatt except that her well no i you know i should temper that response only for one of the three claims that issue your honor that was that there are three different basic classes of claims there's what we're what we in the other side are both calling the care center claim which was the first one then the towers claim and then the plaza deck claim the only release and lexington admits this in their brief applied to the care center claimed the very first one so high it didn't actually settle or anything for the second or third never made a claim against on the other two buildings  oh it certainly made insurance claims yes well it made it made an insurance claim as to the towers loss the second of the two the largest of the two losses for whatever reason it was in june of two thousand and five the defendant simply closed the tellers claim file but then the insurance said don't do that and they were opened at the insurance request seven months later the insured sued whites and its architect right meaning sued whites in its architect so after that that claim kind of languished but certainly there was a initial notice of loss in the towers claim i'd like to reserve three minutes for rebuttal and i know we have lost to talk about that the court is any other questions i'll reserve the rest of my time thank you a court i am charles call and i represent two of the defendant insurance companies lexington insurance and allied world i will be presenting argument on behalf of the police this is an astonishing piece of litigation we have before us a general contractor that was responsible for the building of a defective building that has already collected more in care than it to your owner they still seeking to sue the owners insurance companies there is no precedent for this kind of lawsuit judge jarvey granted summary judgment he will he would have heard the case in a bench trial summary judgment instead his are his judgment was right in order to prevail here judge garvey saw that in order to prevail whites would have to do two things first of all it would have to establish as a matter of equity that it is entitle to step into the shoes of hyatt and second it would have to a stablished that had had valid claims george harvey ruled that white had done neither of these things either one of which would be enough to stop this lawsuit but it didn't fail to do either one judge garvey was correct let me explain why let's start with the question of whether whites had established as a matter of equity it's right to subrogation this is this involves an exercise of discretion it is an exercise of equity and the standard of review here is abus discretion this court's precedents say that's the standard when you're dealing with an equitable remedy there was no abuse of discretion in rejecting subrogation white's court rejects of brigade an altogether i see where he rejected the second prong of what you laid out if i don't pay thirty six he found that it would be didn't meet the elements for subrogation including fairness even clued in the double recovery problem he starts he did it in an opposite direction from the way i did it which is he started with the viability of hyatt claims and then went to correct why it's paid out fifty three million it received fifty five point seven million so it has already benefited to the tune of two point seven million why it's also admits that our law their answer to you and then yes now moving to the assignment first of all it's a radical shift in their theory of the case it's not in the complaint that governs the second amended complaint that song file in this case they believed lee very belatedly moved to a that was denied is moot they haven't appealed out in this court so they're working from a complaint that alleges only injury to themselves second under the assignment theory whites are still being made more than whole for some of the assignments white gets to keep whatever it recovers for some of them it keeps up to one hundred percent up to a fixed amount and then shares beyond that amount but there is no dollar that it can receive that it does not get a piece of either all of or some of and so white stands to profit from these assignments and judge clarified by our supplemental appendix which gives his corrected typographic we corrected order where he says clearly whites cannot get a double recovery should have collected the fifty two million a possible scenario here well it doesn't have your honor it doesn't have an obligation to give back money let me read to you from the request for admissions all told as of th even more whites is not obligated to repay any of these funds even if it recovers funds through the present auction admitted that's on page nine twenty one of the appendix it's not acting for its point five and then and then after that has to share we some of the insurers but that's all there is no dollar that it's going to it's either going to be collecting one hundred percent of the dollar and keeping it for itself or to be collecting a dollar and giving a portion of that dollar of it collects enough to the interest but whites have to collect something for itself on why it's comes out with more than being made whole and that's the crux of it that the whites it's not that quotable for whites to be more than made whole and that's when seeking the help of a quarter that would be for that covers the the other thing is that this all assumes that these assigned ors have a theory we disagree that we should have that the initial post construction insurance should have paid out we disagree that but but but except the promise of what you're talking about your honor the problem is whites remains in the middle making a profit and it's not acceptable now the other problem that i was raising is that these asked sign or no they paid whites they didn't pay the sub contractor for example paid white because it had it was alleged to have done a bad job in building the building it paid off it's all in liability the insurers did not insure whites the insurers didn't have an obligation to pay coin which are the contractual defenses we've got the carrots and a claim that was the one that risen was released that doesn't seem to be very controversial the towers claim what happened was there was notice of the towers claims but there was no proof of claim filed with the insurance company it was not pursued in other words and there was a two year statute of limitations in the contract saying you have to file  within two years that didn't happen it wasn't because i put an actual claim asserted through a proof of claim was being considered by the insurance company it just didn't happen basically because hyatt pursued why it's there was no pursuit of the insurance companies from two thousand and six to two thousand and nine or ten would you take a few seconds on why under illinois law that contractual limitation applies to an equitable claim see me the discourse relied on that seven circuit opinion by judge easterbrook which said there was a contractual subrogation claim in that case as i recall and the contractual limitation well in that case the district court found that the illinois statute of limitations did apply yes contractual yes well right and and that was refused and not even appealed to the seventh circuit i think if we're talking about the same case well i believe it was appealed but if it's not fresh in mind i think it's not a good use of time ok talk about that case but your position is under illinois law the contractual limitation period is binding on an equitable claim like this i'm sure it's in your brief if you don't have it in the i just want to give you a chance on that issue because it is one that i am focused on  you're asserting i am subrogated to a particular claim and the question is what is that claim and if that claim is a contract then the contractual provision within  of limitations would govern and that's what happened in the moa case from iowa that's also cited more that doesn't use section two twenty one the restitution provision because i can see the argument for it beginning from the data payment but illinois has confronted that issue and that's not the way it works in illinois it is the way it works in florida and that's the difference here on the choice of law if the panel has no further questions this judgment should be affirmed on both equitable and contractual  i reserve three minutes i have a few things to say your honour's first of all i think the case that judge call it and you are referring to judge easterbrook is the american alliance case in one thousand nine hundred nine from the seventh circuit which is different in cleary we point that out in our brief american alliance squarely holds that although illinois courts have never directly addressed whether a suit limitation provision in a contract can apply to a party who was not a contract to it the seventh circuit was confident that illinois based on how they construe these these how is it different in in a material way for purposes of what originally to claim is still based on the contract between high in the insurance companies right yes it is but again as a matter of equity not as a matter of contract itself and i know what terms of whether the limitation period should apply or why shouldn't it why if you're sure what it will claim is premised on the contractual arrangement simply because as as judges reports out an american alliance in illinois a period of limitation set by contract binds only the parties to the contract itself while we step into hiatt shoes as an equitable matter of law if you will we aren't high yet we didn't actually we we didn't agree to the same exact insurance contracts that hiatt did what matters here is the insurers were bound to pay this they didn't we paid it instead and i think it's important to also look at that it's not white itself that we're concentrating on whites now has the rights of its asinine orders and i know they say that still whites will come out ahead but that doesn't matter white still has the rights of the asinine orders and that has to be given effect the they don't contest lity of that just to be clear we aren't claiming the full fifty seven point nine million dollars in this case and we never have and certainly there are two point eight million dollars that would be over the amount that that we paid we we entitled to that most likely also it's not true that we don't mr cole made the brazen statement that we don't have to pay anything to any party left i'd look at page ten of his own brief where he cites to pages nine hundred four nine  appendix where he says he admits the contrary that we certainly do have to share sixty percent of anything we get over six point five million dollars with our insurers plus some more as to the effect of the lack of a proof of claim yes a notice of claim was filed in the towers last but not a proof of claim even under illinois law the effect of that is a question of fact especially considering that the insurers did not deny coverage specifically for the failure to file a proof of claim i see i'm just about out of time for disney for the questions