our next case on the called the docket is agenda number fourteen case number one one three three six five country preferred insurance company versus terry whitehead counsel for the appellate issue are ready before i ask for you but that's fine morning in may please the court my name is mike rhesus and along with keith carlson i'm here today on behalf of the talent country preferred insurance company country preferred requires an insured to demand arbitration within two years of an accident with an uninsured motorist the issue in this case is whether country preferred can enforce this limitation period when the accident takes place in wisconsin which has a longer three year tort statute of limitations for suing the uninsured motorist than does i want to buy the trial court's answer was to uphold the policies to your limitation period over a dissent the appellate court reversed it held that the two year period violated only public policy when applied to this defendant we respectfully submit that the policies to your limitation period which has been repeatedly up held does not violate any illinois public policy in this case if we are correct the judgment below cannot stand the appellate court's judgment an illinois citizen who happens to be injured in another state with a longer statute of limitations for suing the uninsured motorist will have more than two years to demand arbitration where is the same citizen who was injured in illinois will be subject to the policies to your limitation period this result would not be a logical or consistent interpretation of the policy it would run afoul of this court's clear preference for consistency in the interpretation of the walk there's no choice of law issue here because both opposing counsel and country preferred agree that illinois law should apply i guess my question is yeah that in a lot of policies i just use a clause  consistency is to be desired the two year limitation period should be valid regardless of whether the accident takes place in illinois or in another state and regardless of whether the other state has a longer statute of limitations than illinois for suing the uninsured motorist when he accident takes place in another state the policy is to your limitation cannot violate only public policy when an eleanor i insured would have the same two years to demand arbitration as he or she would have to file suit if the accident took place in illinois it is no more difficult to demand arbitration within two years of an accident that takes place outside only than it is to demand arbitration when the accident takes place in illinois this case proves that the fed i knew that the other driver was uninsured shortly after the accident country preferred center a notice of claim within three months open to claim file and her attorney not opposing counsel but someone else searched country preferred with a notice of attorney going well within two years of the accident all it took behind this coverage in section one forty three a of the insurance code is to guarantee that the insured is protected to the same extent as would be true if the uninsured motorist had been insured in compliance with the illinois safety responsibility law section seven days two zero three regarding minimum limits of twenty thousand and forty thousand beginning with coin a nine hundred seventy six our cases recognize that the legislative purpose is satisfied when the insurance policy provides the minimum coverage specified by own oil law and coin this court noted that the two your limitation was not less than the amount of time that in a short hair to determine financial responsibility for the accident and therefore the limitation did not dilute the minimum coverage provided by the illinois law i think i think the plaintiff would argue that the policy of illinois is that he hears the plaintiff should be placed in substantially the same position as she would have been an had the driver in wisconsin been insured and there would have been a three years natural imitation how do you respond to that my response would be to look first of all we don't think  was constant statute of limitations has any relevance in this situation this is not a torch suit by terry whitehead against the uninsured motorist we do not limitation that has been consistently up held as valid in illinois any liability but we have to carry whitehead the defendant is based upon our contract and subject to all provisions including the two year limitation provision so if we follow on tract law we would agree with you yes we say it's the policy of illinois a national responsibility law to put the victim of an uninsured motorists incident in the same position could we look at what i position would have been and and i think this and i think i think just as can i really put your finger on something because if you look at the decision in paragraph eight of the nominated paragraph eight they cite this court's decision sievers and they talk about the purpose of uninsured motorist coverage but what they don't do is they don't leave out the most important words which is that the insurer dispy put in the same position he or she would be in as if the uninsured motorist was insured but then you have to say under the illinois law of financial responsibility because the cases always look to what is only law and only public policy is defined by reference to illinois laws statutes in our wisconsin's longer statute to void the two year limitation on illinois public policy grounds other states have adopted longer statutes of limitations for their citizens and two those states wisconsin and missouri happen to sit on our borders wisconsin is a three year statute missouri has a five year statute another states tort law which as an expression of that state's public policy allowing for a longer period of time to file suit should not be used to invalidate it could fission that our own courts have upheld in an insurance policy between illinois citizens don't want public policy as expressed in our statutes and court decisions as to terminate the two years is a reasonable time for suing the uninsured motorist for bodily injury and also for demanding uninsured motorist arbitration under the insurance policy argument is accepted but those who are involved in accidents in illinois are still subject to the two year limitation period i don't think that sievers and system pay to the result that was reached by the appellate court in only public policy shouldn't turn on what another state has to say about how long a time period a planet has to sue for battling injuries taking place in another state but to your limitation at issue has been upheld as valid and  on an insurance company's contractual liability it's for that what it is should not turn on the happenstance of one of the accident takes place in illinois and if it takes place in another state other than illinois whether that state has a statue of limitations that is longer than the one in illinois defendants concept argument does have consequences beyond this case if the purpose of uninsured motorist coverage and i think we've been talking a little bit about this morning if the purpose of uninsured motorist coverage is always to put team short in the same position that he or she would be in if the other driver was insured without regard to the financial responsibility law then it insured would be able to avoid other coverage limitations valid in illinois when the accident fortuitously happens in another state with more favorable law than illinois law and public policy require we've given two examples in our reply brief one involving the policies physical contact requirement for hit and run accident and the other involving the limits of uninsured motorist coverage the point is that unless the purpose of uninsured motorist coverage is limited to the proper context of putting an illinois insured in the same position he or she would be in if the uninsured motorist carried minimum limits required by and seven days two or three of the vehicle code defendants argument is open ended and allows another state's law here wisconsin to trump a limitation that is valid in illinois that argument proves too much our general something which occupies a better position in the courts for determining public policy has concluded that two years is an adequate time to assert a claim against  uninsured motorist there is no only public policy that is violated if a court applies the policies to your limitation when an illinois insured happens to be involved in an accident in another state with a longer stage of limitations for suing the uninsured motorist we respectfully submit that the appellate court wrongly used wisconsin's a longer statute of limitations to invalidate the policies to your limitation period that is not against illinois public policy on grounds of public policy we ask you to reverse the appellate court and to reinstate the trial court's order than dying defendant's motion to compel arbitration yes i have one question and that's based upon i reverse the appellate court what issues remain to be sent back well i think we would still have to show that the that the defendant did not comply with the two year arbitration i that she didn't comply with it to your clause so it would still be required for us going forward to show that she didn't comply i mean her you could say elegant way this court is that insurance companies in illinois with to your limitations for uninsured motorist claims is just a rhesus for him this court believe wherever they are would wind up having to pay more claims that's the consequence that they want to avoid the laundry list of more than twenty five or more years of litigating the two year provision doesn't make it right in every circumstance in fact not one of those cases says it's right in every circumstance in fact the fifth versus country mutual a case which if we listen to what mr reese has just told us and what they say a footnote to it page six of their reply brief that the insurance company within three months of the accident was aware of an uninsured motorist wine set up a claim file sent to you when claim form to the claiming insured and then received a lien notice from the lawyer within two years my question is why are we here recognized was that the notice of the claim was notice of an impending arbitration which is same thing we have here and if the court looks at this there is no question that country referred did what country mutual its sister or parent company didn't heal it opened a claim file it assigned a number and assigned an adjuster and it was communicating with the insurer it did what the fifth district said once invoked the claim handling process that's the same thing here now so fascinating there's no need to make a demand for arbitration is their claim is well behaved the fifth district said there is no magic language what do country preferred think this woman was doing when she made a claim for uninsured motorist cover that she was told shortly after she made the claim which was in october of two thousand and seven when she gets a letter in october of two thousand and seven letters and a wait and in zero nine saying call me send me your specials we'll bodily injury is three years it doesn't try tromp illinois public policy illinois public policy and we agree is determined by the by the constitution the statutes and the judicial decisions of this state when those are looked at  are uniform in their application of the simple truth from the uninsured motorist statute that the injured insured isn't titled to be placed in a substantially similar to this position so what she would be in if the other driver had insurance including the same amount of time to bring an action it began with burgo the first district case forty years ago where they recognized that where the tort statute of limitations is two years but the policy limitation in burgo was one year it was commented by the author of that decision that the limitation violates the statute of limitations to bring the injury suit it diminished in diluted the statutor mandated coverage in the court one so far as to say shortening the limitation to bring an action against the other driver is arbitrary and reasonable and capricious and against the public policy of this state and is there be considered as court can consider those decisions just as framing that if you're referring to the two other decisions in the united states involving this issue other than the one that emanated from the third district here the supreme court of ohio which you have with a dramatically different public policy than illinois were all it said was the public policy there or what the purpose of their un statute was was to give the person an adequate amount of recovery because they also said the limitation in the policy was a political to minors which this court said was against illinois public policy thirty years ago in the cbers case the other case they rely on which is another country mutual case this from a court in which that decision is not even the law and that's the ten circuit it's an unpublished non question dental decision that even the tenth circuit wouldn't regard as the law if someone cited it and they're apparently under their rules and we checked you can cite an unpublished decision a you know important distinguishing feature that those cases measured the policies time limitation period against the a political balloon a statute of limitations ergo involved was one year yes and cbers was a minor but there's quite coin versus country neutral which didn't involve you don't want well i'd held that the two year limitation was appropriate under the u n statute and didn't conflict with public policy because two years was the same amount of time that injured insured had to bring a lawsuit against the at fault driver therefore it was it complied with public policy it didn't diminish or dilute the coverage that would otherwise be available which happened in both bergdahl would shorten the limitation and in certain cbers which also shorten the limitation right but it would seem that berger and sievers you know they're looking at the policy limitation political illinois standard so you know a policy that says one year in the illinois statute is two years you would think is consistent for have with opposing counsel's argument here we are we're dealing with a three year wisconsin's that is not a two year illinois stage you're dealing with a three year wisconsin statute however the public policy as recognized by numerous decisions from this court with respect to uninsured motorist covered th substantially similar positions to what you would be one if the other driver had insurance which includes under calling the same amount of time to bring a client so is your position that if the wisconsin statute was one year that the illinois provision the provision in in the stance in the policy rather here could be one year no the policy is two years the well they would put that would under that argument though that would put the insurer in the same position he would be if he was let's say arkansas had a one year stance and your policy had one year i say we're going just a sense i would have to agree with that but that's but that's not the sievers then you'd be in here then are going burger and serious as a one year isn't good enough because the public policy of the state of illinois for a tort claim in illinois two years but it in this case we have a situation where all of the we would be making a statement that if there is an accident in another state and that state has a statute of limitations of two year or three years or greater let's say that we would have to employ the statute of limitations of that state however if there's a statute of limitations in the state out there for personal injury claims were it's one year then we would use the illinois stachel and i don't know if the court would have to go that far because one thing that comes to mind with this with this issue it's never been before this court before before we had it in ottawa it had never been before an illinois reviewing court before and yet this is an insurance company that is probably the third largest rider of policies in the state behind state farm and allstate were have all the claims gone people get injured in other states there's no doubt that the country preferred country which will drivers leave illinois to go to wisconsin where there's a three year stature to go to missouri where there is a five years statute no doubt has admirably they filed within two years perhaps they did or perhaps they once were a lawyer and a lawyer so what the policy says two years it's been three to bad it doesn't matter it's a five year statute it's expensive to take on come from you have to look they won twelve of these cases in the last twenty five years they've just been pretty good in them over and over and over which is really what they've done but why is it they were challenge they were challenged and cloying were cloying held the limitation is ok because it's the same amount of time you have to put in the tort case in hale the fifth district we go first it reversed because it's not a trap for the unwary and that a letter saying we have a claim was sufficient under a two year limitation with respect to suit arbitration or or claimed it was sufficient it's not a trap for the unwary no magic language was pointed out by it by the court in another one of these cases parish vs country mutual so that they've been chipping away this is the first time someone makes a claim notwithstanding the two your limitation where the time to bring the suit was three years so for this court to affirm it would not be holding th policy varies depending on where the accident takes place as the insurance companies seem to argue here actually instead this court would apply well settled public policy and determine that the public policy is violated public policy of illinois violated when the time limitation provision in the contract for you i'm claim is shorter than the statute of limitations that is to say that means it's it's not against  a longer more correct too just as government if it were it would be that because the public policy in this state is to put the insured the injured insured person in the same position he or she would occupy if the other driver had insurance and have the same amount of time to maintain the action which is what burgos said which is what this court in seaver's said and which is what the appellate court in quelling said and that's the touchstone the touchstone of the validity of the limitation is it doesn't diminish or dilute the coverage mandated by the un statute if it does if it diminishes or dilutes the coverage that this person contracted for every case says the provision is not applicable and void as against public policy everyone says that every one of these cases is uniform the problem with this case is it's different it's different in that it has a different fact pattern it's not like any of the twelve or fifteen or whatever number of published decisions there are the country mutual had from various illinois appellate courts all of all the districts except this was the first from the third which is an interesting first published decision from with what would what would be your response to the an argument that in a contract where there is no negotiation it's not as if she could have paid extra money and had the two your limitation made a five year limitation so virtually any state should be able to make a u m claim against her care here in illinois so  i don't think that argument i think that's a nonstarter yes this car never had another question your indicating that we should abide by the wisconsin statute of limitations as to or claims not their statute of limitations as t uninsured motorists because i think they have a five year statute of limitations for those things would your argument be the same or does this argument that if we agree with you would that mean  coverage in the other state were different than illinois requires that we should we have to follow the limits of coverage and that's the way to put you have your client in this case in the same position for example wisconsin ha limitation you had to have at least fifty thousand of us coach well if that would matter here because she has two hundred fifty thousand and un limits but what would your argument you have were not when i say all it is is that substantially the same position she would be in if the other driver had insurance at the minimum planful responsibility law was different that might be one aspect we're not saying anything that we don't have the fear factor that michael reese was brought before the court and points out that but since the year two thousand we haven't had physical contact requirement no annoying so if we don't have to file a reply to their reply i'll just tell the court this is their argument at page ten of the reply brief gross tons versus very land insurance out of the third district three eleven eleven thirty eight seven six did away with physical contact requirement illinois if there is no physical contact there is still a hidden ron and you have to prove the facts of the action that's what the third district recognize and what is pretty much standard policy language so that that's not an issue mr chambers explained to me is that argued for the first time even before a legislature why would public policy concerns be indicated as a result of someone had needing that extra year because it's a wisconsin case knowing that you're not going after that toward these are you you're going to you're going you're going to the polls well i think the concern would be the fact that under the new i'm statute there is no time because it's the same amount of time you have to bring an action against the adverse driver that's what it has evolved the first district and burgo which i think was the first case to look at this point out that the one year limitation could never survive because it was shorter than it did violence or it violated the court's statute of limitations that's what they said and then they went out and they called the limitation something that diluted and diminished insurance coverage which you paid for  contracted for and you expect to receive and it called that diminution of dilution not only void as against public policy they were not and so they call that arbitrary capricious on a reasonable and void as against public policy so the  statute that has no limitation within it ten years to bring a suit on a policy two years is reasonable if that is the amount of time the injured person would have to maintain the toward action if that person would have a longer amount of time than the public policy recognized by the long list of cases many of which are there or would not be offended by saying put the person in the same position she would occupy as if a similar position to  the average driver having insurance and the same amount of time to bring a claim i daresay it's not going to open the floodgates to litigation if this court were to affirm if anything and if it did then country preferred and companies with limitations like this would only be doing what they're contractually obligated to do pay claims that's the biggest adverse consequence of an affirmative they may have to pay more claims because people who have accidents and other states with longe limitations were may have been scared off by the laundry list of decisions saying you only have two years by their own policy language that says two years may now bring clients wouldn't that be awful for the insurance industry and i would never say that but you indicated that the hale case out of the fifth district would say this might be enough he said he issued before us first the only issue that denial of the motion for arbitration we cited hale in this court we cited telling the court below that the court below only looked at the issue of put the person in the same position she would occupy had the time limit been the same clearly this court can look anywhere in the record to a farm and it could look at what's here what they admit they opened a claim file three months after the accident and sent out a claim through arm involving uninsured motorist coverage information we also have in our brief in the in the in this crowd the statement effect they pay year limitation it should go back to the trial court on their declaratory judgment action what what issues remain their kind of claim for bad faith among other things but i guess that basically based upon the the notice that was i want to begin with what just as calmly or just as opposing counsel ball hail hail is one site as part of a string side of about a dozen cases on page fourteen there is no argument in this appeal about notice being equal with a demand for arbitration the appellate court didn't even address the arguments this argument is now before the court it has nothing to do with the issue before this court which is the validity of force ability of the two your limitation on arbitration demands one wisconsin as a longer torts to actual imitation that's the only issue before the court i was surprised when counsel said that apparently if we can find a state out there with only a one year statute of limitations they don't have one year if this court enforces this policy is written it's two years it's two years if the other state has a three year statute a five year statute but only one year statute the limitation applies throughout the coverage territory that's in our country it doesn't go up or down depending upon the fortuity of where the accident takes place going back to  think the points been made but just for reinforcement in those cases the policy limitation is being measured against the applied couple illinois statute it's an illinois yardstick i always until this case and only yardstick and the purpose of uninsured motorist coverage is to put the insured in the position he or she would be in if the wrongdoer head been insured under the financial responsibility law section seven days two or three it is not a video call for importing more favorable law from another jurisdiction to invalidate a limitation that eleanor the courts have repeatedly upheld i was also a bit surprised i'm not too sure i got an answer but i know the council saying oh well maybe if wisconsin has a higher limit of twenty five thousand fifty thousand only twenty forty wisconsin twenty five fifty  maybe yes maybe no we're not sure what his answer is about whether or not those limits would apply i think the answer should be very clear based on what this court has said citing the same decisions that off it's the financial responsibility law that governs and it's not a vehicle to be used to import a lot of another jurisdiction finally i just would like to emphasize how easy it is to comply with the clause counsel raises the question about all these people who are being denied claims because somehow even though their own oil insurers and presumably we demand uninsured motorist arbitration we name so and so is our arbitrator that's easier than any lawsuit the limitation period is reasonable it's a reasonable limitation on the company's exposure that's come from the courts many times over i think the court today for the time and attention is just spent for the oral arguments and again we ask you whitehead is taken under advisement as agenda number fourteen mr marshall the all or supreme court stands adjourned until tuesday may twenty two two thousand and twelve nine thirty am