control and also with regard to acting soley for their own benefit and in particular to maximize the return on the premium reserves that they took from national union exchange for this  primary benefit to one of the other verses incidental what we are deciding is that it is premature on a motion to dismiss to try to resolve those inherently factual issues of control and at scope of performance and whether it's but i reference your church in particular because the context there was actually not too dissimilar i would indeed argue similar affirmatively similar to the one here in that in reversing the circuit courts dismissal order in that case what was at issue was a like here a qualified immunity or a limited immunity instead of for consultants there it was for first responders who are empties respond to see an accident and the statute there  sometimes called good samaritan statutes childed what it immunize was ordinary negligence liability for ordinary negligence and thus like here there were exceptions they have the exception was if you could be facts official to support a later finding of want conduct as opposed to ordinary negligence and like here the defendant argued that the allegations were conclusory indeed they noted that a lot of the same allegations that were used now argued by the mayor to support a later finding of wantonness with the same allegations that the plaintiff had used to support its claims of negligence and the court still reversed the dismissal order noting that when the merits of a case depend on the fact that summary judgment motions are the way to deal with that and even though illinois a fact leading state not to notice please state it still held that and it said when particularly when the facts are predominantly in the knowledge of the defendant as they are here the plaintiff should be afforded an opportunity for discovery and we believe that we will ultimately prove our allegations but that's a fight for a later day all we're asking right now is to have our work and be able to develop a record now i want to talk a minute about the benefit of the sole benefit issue because reading berkshire's response below and here i think one could get the impression that if there is any benefit at all even incidental benefit to  the principle that that's enough to to to eliminate exceptions for religion to put privilege back into playing immunize the defendant and that is not the case by definition any time a third party is able to  contracting party to reach its contract to the other country it with the other contracting party variable to do so because there is some perceived or actual benefit however small to the contracting party who is rich so it are rather is to focus on what is the what is the defendant's motivating what is the defense motivation what is driving their behavior and there's not really disagreement that it's really more about a motivation than an like middle man from illinois supreme court say you're acting in your own interests without regard to the best interests of sensible and then some are with means that the behavior of the current it doesn't have to be criminal or it detail facts for both of those two problems we did not come in and have a four page complaint that said that the friend the church of defendants acted solely for their own benefit and they used improper means to achieve that goal we gave very specific examples in a thirty plus thirty plus page point let's start with those with the most benefit issue we know that we elect specific that first years conduct designed for one purpose and one purpose side we've alleged again not just completely that used improper means we gave specific examples of that including but not limited to the fact that they use arbitrary payment caps that are divorced from the merits of the claim of the insurance claims that are submitted in order to maximize this return on reserves that they tie their employees compensation to meeting those caps so that the front line claims reps and again we don't have the claims handling got manuals yet that's something we get to yes for us and we get discovery this goes back to the point about motions to dismiss versus motions for summary judgment but upon information and belief they have employee employee compensation tied to meeting these claims handling guidelines these arbitrary caps that are designed to maximize the flow so that the frontline claim direct the people that are dealing with the likes of parliament and day to day in the trenches are incentivized to do the wrong thing instead of to do the right thing  now to be sure we don't have a complaint that reads like a summary judgment replete with cites to numerous documents i mention a few that we do have with the quotations that i mention but we're not required to have that complaint that you can resolve all these issues about whose benefit are they really trying to further who has the right to control who to require that to be all determinable from the face of the complaint is both unrealistic and  we don't know a lot of facts we don't know for example if national union as it were lost its motion to dismiss below is ultimately subjected to extra contractual damages for benefits under section one fifty five for example the  know the answers to these things these are the kinds of things that discovery would get into and their heritage fascial nature in terms of what applies to the reinsurance who pays what even if somebody like i said berkshire does pay it how does that get counted against the reinsurance how does that caused by it breaching its contracts and being subjected to all this litigation after by the way i would add ten years of peace under a settlement agreement this is not a case like many of those cited by berkshire all where the for ten years the parties lived under that bridge that settlement agreement it was only after naturally you entered into this arrangement with the virtue of families but everything started to go off the rails and now we've had two years of so again if i would i guess i would say before i get to my putting part of my opening remarks that i think and i appreciate the dish the circuit courts wrestling with this issue this is not the most clear area of the law you probably been able to tell there are cases going both ways both with respect to purchase specifically and with respect to the issue more generally the supreme court itself came out one way in favor of the defendant h b i came out the other way in middle and from the  of the return on the and on the investment of the reserves that also is why they do what they do in terms of improper means to pay me perhaps the time away compensation and also raising resurrecting coverage defenses that were long moved for dismissal national union on the basis as a matter of law that it was not frivolous and that that would never be bad faith and as a national union the circuit court denied that motion so the point is if it's a factual issue there on the national union side it's a factual issue here and i think i appreciate again the district court wrestling with these with these cases which as i mentioned seem to to run them run the gamut i think that the circuit court took on a burden that it needed didn't need to take on and that is to try and resolve all these inherently factual issues now the initial pleading stage and it did that in two respects one he focused i would respectfully submit  too much or all virtual most exclusively on the fact of the existence of the reinsurance contract between the berkshire defendants and national view instead of the behavior under that contract forms of that contract and then secondly it actually talked about what was or wasn't in the scope of that relationship without seeing any of the documents including the contract itself said that national union should be the first should defend its behavior however bad we may say it is it's within the scope of their consulting arrangement with national union that's precisely the type of agency related issue that sherman says is inherently a question that cannot be resolved at the motion to dismiss stage and i understand berkshire's argument that it is not a pure their argument is not limited to agency but at the end of the day when they're qualified privilege and so privilege  inclusion for this part i would say again if there is a theme running through the paces it's not that you have to agree with us today that we're right obviously we believe we will prove our factual allegations we're simply saying that it was premature to try and resolve that now with a motion at the initial stage given the high bar that that creates for defended and indeed i would note in that regard actually case which is the only case cited by either side that involves the destruction of a long dist a settlement with national like we have here the circuit court said it's hard for me to see how i get to a result that says even if i take every one of your allegations true that you still don't get work so i'll stop there agreement from two thousand and three clearly covered and waived and released those claims but very briefly honors in this document is in exhibits of complaint it is in the appellate record that the settlement agreement and release which is the least including but not limited to those planes set forth in the declaratory action relating to any and all past present or future liability or obligations of the national union to investigate to defend to pay defense costs to inde were provided the insurance coverage whatsoever to the new governor relating to the underlying claims under the national union policies the then goes on in hundred member releases national union from any duty under the policies it there is a paragraph that says the parties reserved in do not release any claims that are not involved in the settlement this is a unilaterally unilateral release it does not mention the indemnity agreements that national union did not really release any claims under the indiaman the agreements so the position that national union is taking now which is wait a minute there is an independent indemnity agreement that requires gardner denver to pay us money was not even mentioned in this document was not released the release is unilateral its narrow and its expressly says all claims that are not released are reserved so governor denver's entire case is based on the false premise that this settlement agreement releases a national unions claims under the indemnity agreements so they have gone and they have sued and they've sued national union for breach of the solomon agreement they've also sued national indemnity company  acting pursuant to contract they don't dispute that they dispute whether they are technically agents but under the h p i line of cases it's not necessary for a representative of a principal to be technically an agent in acting in a representative capacity it doesn't i don't think the word agency appears anywhere the hospital management company we are a a company an entity is acting in a representative capacity pursuant to contract and exercises of business judgment m b half of its principle it enjoys a qualified privilege against tortious interference claims it cannot be held responsible for porsches lee interfering with its principals contract and the reason for that under noted in circumstances where it can be shown that the agent or representative was acting so only in part but solely in its own interest and in a manner that's inconsistent with integrity istic to use the language that's used in the cases the interests of the principle there could be a tortious interference liability by the agent or representative and they aren't attempting to  invoke that exception to the privilege and what do they allege they allege that the conclusion nothing but the conclusion that national indemnity company and resolute are acting soley to maximize their own return court that they should perceive it to be six or fifteen botia should be denied and the court should be called upon the sides case on the merits of a motion to dismiss that was not the basis of court's ruling your honor the basis of the court's ruling was that on the motion to dismiss that we filed on behalf of national union the court said i'm not going to resolve that issue i'm going to deny your motion to dismiss it because i think there's a fact issue here and so the court denied the motion to  dismiss as to whether the settlement agreement on its face refuted the allegations of the complaint that was one of the motions made and the court denied that the court said what exactly what your honour's pointing out which is that there is a way to maybe read this once we find out what happened that would say that the plane one of the indemnity meant was released that the circuit court did not dismiss the complaint as to those allegations they merely dismissed the tortious interference count and the consumer fraud count on the you can be tortious interference count on the basis that there was a qualified privilege that was evident on the face of the complaint because national indemnity and resolute were acting within the scope of their authority t apart from all the conclusory allegations and their complaint that they specifically say that they do not know whether the payment criteria caps used by the berkshire defendants include any analysis of potential financial harm the national union whether and the extent to which the berkshire defendants give notice to and get input from national union before committing national union to a position that is likely to result in additional litigation in an additional potential  es and how exactly the costs of additional coverage litigation and additional damage is against national union including extra contractual damages are treated as between national union in the persian defense so they will lash that national an demi and resolute are acting pantry to national news unions interest but one thing they have not allege is that national union has ever objected or complained about the coverage positions they take that dead allegations conspicuously absent from their complaint if the principle that a national union that national indemnity and resolute was representing in fact believed that the positions that were being taken were improper you better believe that the national union would have objected so we have the principle not objecting going along with the coverage determinations and this is the key to the whole thing you're ours and this is one of the bases on which a judge ordered all dismissed the tortious interference count and that is that the denial or the lay of the payment of claims by policyholders not only benefits the national union in resolute but also benefits i'm sorry national also benefits the insurer national union insurance companies every insurance company it invests its premiums and pays out its claims later in the extent to which they pay them in a smaller amount in a later date benefit the insurance company that's how insurance companies work that they did that difference is called a float every insurance company does that there's nothing improper with about it but the key point here is the conduct of which they are members complaining  is perfectly consistent with the financial interests of national union the there is nothing inconsistent there is no conceivable scenario here and that's the key are they entitled to take discovery no they haven't stated a claim why haven't they stated a claim because on the face of the complaint it doesn't state a claim because what they have allege which is only that national indemnity and resolute have delayed and denied the payment of cla s that benefits national union the principle to the same extent there is no factual allegation whatsoever to your honor's it did that there's conduct that occurred that is inconsistent with the interests of national media everybody benefits by saying saving money be by paying less by paying later we all do we pay a we pay later we have we conceivably interest all companies gartner denver  the plaintiffs claim they did that correct what where did they fail in your judgment to do that they failed your honor in failing to and allege any facts whatsoever to support their in vocation of the exception that they're seeking to invoke to the qualified privilege that says that even though you are acting pursuant to contract you are acting soley soley in you for your own gain and in a manner that is in tegan istic to inconsistent with the interests of in this case national union there are allegations m r do not rise to that level even the conclusions they allege every single one of them amounts to  were denial of of their claim which not only benefits national and them the resolute it benefits national union their money wasn't paid out their insurance covered wasn't you wrote it quicker or in a larger amount there that's the point we are entitled to a qualified privilege where the exception doesn't apply unless they allege facts that invoke that privilege no factual allegations that they were acting soley for their own gain and such time as they've stated a claim they don't get discovery you can't go out and make a conclusory allegation and then say even though i admitted we don't know any of these details just because i say that it played the conclusion i'm entitled to the discover turner deborah has indicated that it's unreasonable for the apple lees to demand that they have answers to the specific questions of what actually was done here without their first scary however they are required to state their claim before they can go out and take discovery at the most what they're alleging here is that national indemnity and resolute are acting in part for their own day so if the delay and the denial of the claim is they've alleged benefits national indemnity to the extent that it also benefits national union which w agent is always acting in part for its own in that's why it's an agent for profit but it's also benefiting its principal at the same time and that's the basis of the representative of an agency  to national union that absolutely benefits national union directly i don't know if there's any benefit at all national the money resolute the point is the coverage position they've taken on as your honour's has pointed out that there would be a direct benefit to national union the coverage position they've taken that's not in any way harm it's not inconsistent with the financial interests of national and of the national union it's consistent with that to the extent that national union the level of an exception to the privilege under these circumstances the national indemnity company isn't titled as resolutely to the benefit of a qualified privilege under the h p i line of cases such that they can't be liable for tor order denver's right it turns out that they have a they are not like one of the indemnity agreements if it turns out that they are that the settlement agreement did release those claims well then who do they have a claim against they have a claim against national union under the policies that they had their policies are strictly between national union as insurer and gov denver has policies i would suggest your honor of that that that the same circumstances that a rock that a title national union all they really allege is a claim for breach of contract for breach of the alleged breach of the insurance policy so under those circumstances the consumer fraud act does not permit  independent claim when there's a bridge contract do i understand that i knew your view of what is occurring that if you prevail gardner still may have some recovery party administrator claims him her son absolutely the case in its full extent remains pending against national union which is really the only party that should be liable here it's merely these creative tortious interference   you have both a breach of contract claim against them the breaching contract faria and also tortious interference claim against the third party that induce the breach but he noted that that is the law that both remedies are provided by the law and that wasn't the issue before the court and so on  happen if actually we look at the record evidence and that's exactly what sherman in your kitchen see say you can't just assume on on on a motion to dismiss he mr bennett it's also talked a lot about conclus allegations i will just refer the court again to we we knew that that was their theme and so we tried to lay out in detail in both form the opening brief pages forty seven and then in a chart form on pages six and seven of the reply brief exactly what those details factual allegations are about about the return on the premiums you know we're sure it's reserves going exclusively to them the payment caps that i refer to the employee compensation incentives counsel opposing counsel says that cannot serve as a basis for lack of justification because you're not improving do you agree no i mean i think that coach of the means prom is opposed to the purpose probably the exception right that h p identified basically said look there's there's one of several ways the exception come into play and sometimes the overlap but one is where the third party is acting solely for its own benefit without regard to without caring whether it's benefiting the principal the other way stand behind a motion to dismiss and say even though you've alleged that we get all the return on the investment even though your bill lajoie we have these arbitrary payment caps and incentivize our our employees to meet them instead of what the claims really call for you don't get to see anything else that we know about in terms of how the reinsurance limits work and who pays what that's exactly what your tic says you can't do and i guess i would i would close by noting that this case does not because of this unique arrangement that that national and the resolute have with with with the national union and the way in which they've implemented this case does not implicate the public policy concern public policy that underlies  is some sort of you know edwards is the notion that if you could subject these consultants to liability which it would cast a vote dark cloud over the consulting business if decisions that turned out hindsight to be alone you know if you could hold them and those are right side by side and that's exactly the kind of thing that a motion to dismiss was not meant to resolve thank you very much