and we move to the second case this morning daley versus jones mo please the court my name is michael blow photo i represent mr daley there is no statutory basis that supports the dismissal in the case below and i'll start by the section that was initially cited by jones motor and its motion to dismiss which is section eighteen of the workers compensation and that section states all questions of wising under this act shall be determined by the commission not exclusive but the more difficult problem for the defendants in this matter is there is not a question a rising under the sacked and we know that because section twenty eight of the states that this actual plight all accidental injuries and deaths none of the allegations in the complaint pertain to an accidental injury or death there is a section eighteen that states all questions arising a nurse act i'm sorry there's a section nineteen that states the filing of an application with just one of claim an issue it's the process of resolving any disputed questions of law but again that would be the questions that arise within the application of adjustment of those issues on the rise here in the response brief what the defendants focus on primarily is section four of the out and the cheating case that discusses fort but what keening held was that if you are a plain of bringing a personal injury case and you want to invoke the remedies of section forty of the ad which states that if the commission determines the employer did not provide coverage when it should for minute complaint what keating said is before you get to do that you have to have the commission make the findings under forty plaintiffs here is not trying to invoke section forty of the act in any  coming up for a moment as i understand it you're in federal court here under the class action fairness act yes how do you reach five million dollars in controversy here leave the allegations in the complaint say that there are more than one hundred members so to get to the five million dollars essentially the allegation is those one hundred members divide that by five million dollars had  that amount in i q patient accidental premiums went through and they would not have thirty eight dollars a week each right that sounds correct thing that's less than two thousand dollars per person per year were more than one hundred number as i understand the math would work out if your class was the finest two thousand and eleven to the president you know that would be eight years so i to get to the five million dollar mark it would have to be more than one hundred american follow them out a lot more than one how long one of the one hundred and the allegation was made that there was more in five million dollars addition of the defendants conceded well there would have to be enough members more than one hundred times a thirty eight dollars per week times fifty two weeks times a number of years to reach the five million dollars and the exact number of members of the class has not been determined yet and that would have to be some idea nothing beyond the more than one hundred at this point that have to be the number of employees at each of these terminals hearing on october fifteenth so eight days ago it appears to be just sort of a status hearing and it looks like it was just rolled over another pretty much to january fourteenth two thousand and nineteen and from apologize if that is all i have on this play and i was not very answers why did why should we not when we've got this interesting debate under illinois law but why should we not the same issues presented to the commission itself  hope why not just why should we not just wait and see what the commission has to say about whether mr always an employee of john's motor car i would disagree that the same issue is before the commission because the most that would be before the commission is position would be no there is not going to change that the commission finds he was our employee in january twenty third two thousand and fifteen he was there employed throughout my suspicion is that he fenton's are not willing to stipulate to that and they will state whether or not he was employed that day whether there was enough command and control that day does not preclude a finding on the other dates well both if that's correct and i'll be curious to hear from the defense on that point but if you both want to  keep your powder dry on issue preclusion issues you're going to wind up with probably a couple of decision making bodies that are pretty unhappy about that particularly if the only rationale is that maybe things were different for a week apart every year for and that raises additional concerns which goes back to my annoying point is there's no statutory basis to say that mr daley has to wait for the commission to terminations as far as mr daley himself and this is point out the allegations in the complaint the way the scheme has wor anytime an employee gets close to a trial and all the deterrent majors of defendants have involved to fail then the next step they use to make sure the ski issues never reach and the allegations point out th internal communications by defendants to say that we never want the commission to reach this issue the next way they make sure the commission never reaches this issue is a overpay in other words they make a snarling offer forces your client to accept would be the value of my individual civil action clive if the settlement exceeds that i guess even though he still could be a hero and say i'm going to not accept the and what agape this to the commission and then on the civil claim that's what ash mills certainly but what the allegations complaints say is any rational it's today every person has accepted the the other effect of waiting see for the commission to make the determination for mr bailey is that means there never would be an effective class action mr daly could bring his civil claim but then the next time someone else wants to bring a claim the same argument would apply you have to litigate your way through the commission idea back but i thought your argument though was a little different i thought your argument was look we've got a whole bunch of of drivers who believe they are employees and are not receiving the protection in the financial security they're entitled to one of the systems and they're entitled to know what their status is right i mean that's just fundamental to insurance i don't want to make a claim certainly on my life insurance right i don't even want to make claims on my health insurance but i want to know what's there and i thought that that york argument is you can't get the commission to answer that question for you and answer the question about are we employed and properly insured or you know is this the jones motor have to have to come across and deliver that insurance and my understanding is that only arises once you have the injury occur i didn't say i looked at forty many times over and did not see language about how a non injured employee can bring that in front of the commission have you ever tried to bring this issue before the commission now do you represent mr danley before the commission on his individual claim i do no all the findings through the commission from forty what the only supreme court has said on not this issue but close issues is ordinarily the circuit courts have general jurisdiction the commission has very specific the commission has the authority resolve any disputed questions along our factorizing under the act and it goes on the context of keating repeatedly says section forty i don't recall if there was one stray sentence making that statement but the rights of keating makes it clear that it is referring to section fourteen other words if a litigant wants to invoke forty a litigant has to have the commission find that there was a violation of forty i don't disagree with that but in workers compensation cases industrial commission has is the all and decision maker for questions arising under the act but then you look at section twenty eight that states the questions arising under the act are questions t pertain to accidental injuries or death which circles back to the point i was making which was if that this report is correct the only way any litigant gets really is to get injured up work have the commission ultimately find that they were employed on the day to employment and hope that that funding is precludes have prove out their employment relationship then they can bring a civil claim what that would leave out is anyone who had to pay for workers compensation insurance all the years when the allegations say they were actually employees should not have had to do that but they don't get injured at work an argument is if they don't get injured at work there's no way for them to get it from the commission now it might be ok to be prive all these individuals of the remedy if there is something explicit in the south tory tax that would suggest that's what the illinois legislature wanted to do but the sections  described in the cape that is not actually what the intent of the illinois legislature was and the other sort of traditional exclusive remedy provision in section four makes it clear that that is limited to accidental injuries or death and there's a section accidental injuries or death so if they are correct their scheme will work against everyone who never is injured at work all of those people will be damaged as allege in the complaint by paying for comp insurance that they never should have paid for that all of your claims here to pend upon whether mr danley is an employee as opposed to an independent contractor i do not i would agree many of them do but the  parts of the conspiracy claim that say he had to pay for coverage when he should not have because he was employed that claim obviously would hinge unemployment's the fraud claims actually would not because the fraud claims essentially they made him pay for iraq at occupational axonal coverage they told him this is not for get workers compensation coverage when in fact through the years that is exactly what they of use it for so he's been sold a policy under false pretenses and the perk they've also told the providers this is not a work comp policy which allows them to pay less benefits to providers and sometimes make the providers tout the employee's private health insurance and so the occupation it's a no policy so that scheme not only hurts him directly but also hurts a little more indirectly in that when he's trying to get medical help there telling providers that his occupation  policy coverage does not cover that suite gets less and benefits and his private health insurance gets hit with it so the fraud claim even if he actually was not known for being there so the problem that this coverage is not what they're telling him it is in the complaint the illinois worker's compensation commission had to first determine whether mr daly was in fact employed by jones motor company under the workers compensation act and whether jones motor company had to purchase workers compensation so how do you do that before there's an injury oh it's easy well you can section twenty five point five says that the deficient of the insurance of the department of financial and professional regulation shall establish a fraud and insurance noncompliance unit responsible for in your brief this was not the seems like the answer to like the basic question case so i'm i'm i would like to hear it but i also am curious as to why i'm hearing it for the first time now and it's because in their reply brief was the first time when he says what am i supposed to do and so i wanted to be able to ok question b answer is twenty five section twenty five point five c indy division let me just read it the division of insurance that part of financial and professional regulation shall establish if fraud insurance not compliance unit responsible for investigating incidents is a fraud an insurance not compliance pursuant to this section the size of the staff it goes on so they can investigate they can investigate for sure so they complain to the state agency because they have a right to go to court do the do the deed do the people who say their employees have a right to go to court only secondary because the commission has to make a determination under section eighteen of the act because it's a question in place status for insurance coverage heating says that it's a question under the act does for deep cover noncompliance residual world he is is a section forty is a long section of the of the air and it's very complicated and threw out that in fact cheating talks about the nature of that section and it says well you know is it only dealing with forty no because whenever the commission makes a determination under its for example section nineteen you get to invoke roberson versus the investor commission which dealt with p d i and i motor express company and that the at issue there was an injury in that case but it did say that the commission has to make all of those and in to go back for a minute to section twenty five point five yes that directs the creation of a fraud and insurance not compliance unit is there is there such a unit that was created it's it's in the statute that says let's assume i read it and i know what the words say let's assume such a unit was a stablished does that unit then make a determination about whether or not  individual is an employee or an independent contractor i will read another part of the section to answer exactly that the fraud in insurance number noncompliance unit shall report violations of fraud and authority to prosecute violations under this act so so can that unit make a determination as to whether or not someone can report you can report instances of insurance noncompliance to the commission and and it can be set and so you're arguing that claims us claim shouldn't be able to go forward until the commission makes a determination that he's an employee  suggest that they make determinations as to whether or not somebody is an employee or an independent contractor report them and in fact what it suggests is that these are issues that should be decided in criminal courts not not only be the criminal sanction but there was to be a requirement for restitution well that's that's nice but if the state government doesn't have the budget and staff to proceed in a particular case what was what are the drivers to  the first stop and i know it might not answer directly but you asked mister appellants counsel about his pending claim instead of going every three monson and reporting status he can he can bring this issue right up right now and as far as the putative class members are not part of the kaisha case hasn't been certified now with the theory is that you don't have to wait until you're injured to find out your insurance status reigns correct and i i googled that after the reply brief and you get that's a verb no no i if you're with a verb what did you google i googled insurance noncompliance things like that after a minute and you get to the l no i workers compensation work site and it says if you want to see if your employer has coverage type in the name and it also gives you a a number to call the commission if you have any questions how nice ok and if you're not satisfied would gather you think the commission is wrong or doesn't have enough staff or vij it to pursue these sorts of matters what do you do then you can report the ninth insurance noncompliance which the commission has exclusive jurisdiction to do this not just accidents they say they have jurisdiction over insurance noncompliance issues and say that might might might my employer is not providing insurance and and what are you going to do about and they say nothing and they say nothing are you stuck you know that a clear understanding commission has to make a determination after the notice in a hearing and that's that's in the act where  you get that after notice in a hearing that would be insured in our employer's not providing it's cover yes because where where is that happen that's in section not for he says any i'm in a employ her including but not limited to general practice and it says they have to provide insurance they either have to provide the self insured for security or provide insurance and then later on instruction for c it says all orders made by the commission under the section shall be subject to review by the court said of an answer we're going to tell you it's a criminal statute yeah so if you were in the play disposition and you want the commission to rule to tell you legally what's my status before you get hurt yes how do you do that you can file a claim with the you haven't been hurt you can still ask for a ruling on whether or not the in shirt or the employer has to provide insurance where do you do that have a policy of not offering advisory opinions it's not inviting opinion because it can punish the employer and in fact in the keating case it it talks about that ok so is there a statutory provision that lets somebody who believes he's an employee good morning here on earth that berger for police are american insurance company may have please the court on first i wanted to just briefly discuss jurisdiction at the outset of this appeal the court asked the parties to were in this particular station in illinois they only had about thirty so i don't i mean that's the only information that we have and that your honor so why didn't you challenge subject matter jurisdiction and the amount of controversy because if you do the math thirty times thirty eight dollars per week times fifty two weeks you don't get the five million you know there is a there was no there was no does not believe you know there was no discovery done at the time in my client had no information about that because your joy is obviously right your problem that we listed grossman i with my colleagues indulgence i would like to know what your views are on this sure went this route rather than the other cause we would have to go through the math and prove it in print provide up or do you see any possible way the amount of controversy here exceeds five million not come not from the facts that my client is  the answer directly is no but this was a motion a twelve b six motion and we were stuck with the allegations in the complaint so that's that's the short answer do you know how many truck drivers your client had during this eight year period that could fall within any putative class no when i asked my client the question it was we don't know what this is about we got about thirty truck and i suspect your honor that they may not have gone all the way back to the eight years when they gave that number we don't know for sure because of statue limitations i just want to and that's there's other questions on jurisdiction i'm just going to skip ahead and just to address the one issue that was whether it's you there were two issues raised in the appellant's brief that were never raised before one was preclusion an abstention that was not the that than to because no one's making that argument you're correct your honor to the fraud issue that was your honor asked the pellets council before does is there any counts that he has in the complaint that are not in the mr daley simply status and i would just say that that the argument that there was some other cause of action alleged that did not fall within the order was never raised before it wasn't raised in the complaint it wasn't raised and the response of the motion to dismiss it wasn't raised when the court dismissed the case entirely on that basis and it really wasn't raised in any of the appellant's briefs until the repl what he was arguing so along with failing to explain how he could have been harmed by that supposed fried it argument is fatally flawed because in order to make that claim he would have to be admitting orse taking the position that mr daly was an independent contractor as he was classified so it's not clear to me how how that is even the same complaint that that's at issue in this case and so you know i would just say that you know for those reasons and because  never raised before and it never even brought up and when the court asked about jurisdiction he never said oh wait you know what we could have amended our complaint that that issue should be foreclosed and not considered by this court thank you thank you and the district court's order clearly indicates it recognized there was a fraud claim involved on the jurisdiction issue this carnival flatfooted in the opening but the other point i want to raise that hasn't been addressed is the complaint is seeking punitive damages and attorney's fees for violations of the consumer fraud act and that's contained in one place page thirty seven of the appendix so that alone might bridge the gap also i'm hearing about thirty eight people for the first time ordinarily the we allegations as a subject matter jurisdiction are taken as true so the lawsuit till they're shown not to control the show not to be true in the first time there's been any who care information they're not true as today thank you thank you