arguing that summary judgment should not have been granted to state farm and instead should have been granted to three b c in fact based on the trial court's written order i submit to the court judge at the outset i think it is important to note that when interpret ing insurance policies exclusions from coverage must be construed narrowly and all d ambiguity d are to be resolved in favor of coverage likewise if the terms of an insurance policy are susceptible to more than one reasonable meaning a court should strictly construe those terms against the insurer and in favor of the insurer insured now the split among courts that have charted the indorsement issue here i believe the best evidence terms of the indorsement are susceptible to more than one need and therefore this court should strictly construe the terms of the endorsement against state farm and in favor of its insured thr we believe the plain language of the employing dishonesty endorsement here supports coverage for the exact type of stuff that sasquatches committed the extension of coverage for theft three b c paid additional premiums for covers a loss of money resulting from the honest acts of an employee with manifest intent to teena financial benefit other than  not a commission it was not a bonus and it was not any other type of benefit she earned and the normal course of her employee the extension of coverage for salary commissions bonus excess we believe clearly contemplates a bona fide salary dispute between employers and employees not employees the clear  oxford bank court held that dishonest activity of bank employees to obtain financial benefit via doesn't meant is not a valid business activity as a bank and therefore and hartford both of those cases however  it but they did so in a deceptive manner it did not involve more tells them or tell sales people actually perform the work that they were paying for more tell also unlike this particular case involved in a specific exclusion to coverage not an extension i think it's most important to note that similar tell the argument made by the insurance company supports our position here counsel for the insurance company that was called and argued in the st district court noted as follows i had a a s the five plain language of the amendment there must be proof of a manifest intent st to harm the employer and nd to paint financial benefit for the employee other than the benefits earned in the normal course of employees and that's what i named was and that is exactly what we have in the present case benefits in this case money that was not earned but they actually brought in revenue to the hartford and they actually received commissions for actual life insurance policies that were sold like more tell there was no theft in contrast vas o did not earn any money here she simply stole coverage for losses resulting from quote compensation schemes that are generally on earnings such as payoffs and does limits and other forms of  have a case that's precisely on point and alabama alabama supreme court opinion of cincinnati insurance and it involves both the same right or in the same s simply theft to steal money for there in cincinnati two employees developed the scheme to issue themselves payroll checks excess of their sellers regarding the theft rider the cincinnati court policy it is a logical decision is a well reasoned decision and the decision is consistent with only policy through strictly construe terms against being sure and in favor of insure the cincinnati holding makes sense to salary commissions bonuses are all forms of compensation  received was not earned it was simply stolen state farm to call them a stolen divest was selling but that doesn't make it salary was money above and beyond  salary and that wasn't earned it was simply still your honour's we submit that when an insured purchase is coverage for dishonest acts like theft that insurance policy should cover the theft the simple meaning of being here like or thought that the cincinnati case was well decided that he is actually suggesting we should reverse is that where you're getting that statement from  all right some of the cases identified as calling salaries are covering salaries rather more money in salaries often don't really talk about the exclusion as much as they talk about the fact that the theft occurred isn't that correct in some of those cases yes i mean the problem is that most of those cases are not from illinois and are not precedent for one and the other problem with most of those cases is that in those jurisdictions they don't interpret the ambiguity of coverage to be narrowly construed to be construed in favor of coverage and that's one of the d and more tell is what we're telling hartford as you noted are the cases that the trial court looked to and felt that the principles that we subscribe ascribed to require that land which held that it was you know illegal for whites and blacks to marry it's got stuff in a lot of the land and that's the beauty of the law is that it allows flexibility allows us to change over time it can recognize itself when it's incorrect and when an injustice has been done and what we're talking about here is that this honesty clause that this company three b c specifically have to blindly follow those cases but in more tell they they were commissions that were earned on illegal security is correct they were analysis about the writer itself but what i think was really important or tell us what the insurance company lawyer was arguing which is that if the benefits it does it does create exclusions and if you apply it the way you want to that just daft occurred and therefore no matter what form it palm's it's still theft and it should be covered what's the purpose of identifying the specific salaries commissions bonuses etc because those are things you honor are actually earned you could never earn a salary if you stole it which is what that has crested here so in other words with state farm does not want to do d what all insurance companies don't want to do that have a rider like this if they don't want to situation where let's say a car salesman earns a commission because he sold ten cars in the month of march but you ordered and if you receive that commission or that bonus and in order to sell those cars he was saying things to his customers about the cars that weren't true he was sending the warranties were longer than they really were or the gas mileage was better or whatever and later the employer learns hey when our sales guy sold those ten cars during the month he was whining about the attributes of the vehicle so we won our commission or theirs bonus back  but then that would included in the exclusion it would it would be money that it could go in your salary and that's excluded i guess the question is a stuff it it this way if you're stealing from the storage cabinet or your forging a check that should have been paid to someone else or you maybe are writing a check for an invoice but you're putting a couple  extra dollars with the agreement that the the person receiving it's going to pay you back or kick back some money though should not a call occur in the normal course of business correct those things that's correct and they could be identified as investment correct correct but salaries are in the normal course of business even if they that money she just simply stole it in many of the cases that were reversed there are various question of significant substantial fact that's outstanding is involve theft but it didn't involve the exact same writer was the oxford bank decision which is issued by judge there from the nd district and the reasoning there is exactly what we're talking about here that when you steal money and you have an employee dishonesty writer and that money is not earned and the expense of the word just calling it or designating insurance case from the alabama supreme court because we're talking about the exact same issues manipulating the payroll system to steal money that was and finally is this the only type of fidelity bond that your clients could have purchased or were there others that were available with different exclusion extensions you know that's a good question i know that when this is all you know when they had their insurance which they term for a while and when it was time for them to renew their purchase this was the one recommended and this is the one they chose for us with some guarantee from their agent that if somebody stole their salaries they would that would still be considered a doesn't the plain language of the policy here exclude coverage where the insureds dishonesty or dishonest employees would have salaries commission e other than salaries commissions bonuses promotions or its profit sharing pensions or other employee benefits earned in the normal course of employment a normal person would read that say ok that makes sense asked to give a definition of terms as it relates to this insurance policy he was asked how do you feel that money and she stole that money manipulating the payroll system  paid to her as if it was salary but it wasn't salary because it was stolen it was sixty six thousand dollars above and her salary i mean just when it's not salary doesn't make it excluded think you missed a man's key i have no further questions thank you thank you thank you justice because i have no questions i may have some questions on the bottle thank you  result revolves around the illinois decision of mortel as you well know by now the reason that the explanation and reasoning and more tell was not extensive is because from our point of view it's unnecessary the fact is the exclusion that was in mortel that is also present and this case clearly delineates categories of benefits that can be dishonestly obtained by an employee but are then excluded by the policy in fact there are is no court that has been cited who has found the language of the policy to be ambiguous and that includes the case on which three b c rel so heavily cincinnati from the alabama supreme court even there they said the terms and language of this provision are unambiguous despite the fact that they reached an opposite conclusion  in mortel the fact is is that the agents and cells persons a pain commission's via their dishonest acts and because they obtained those commissions via their dishonest acts they were found to be excluded under the plain language of the exclusion contained in the policy now here vasquez also performed dishonest that she performed dishonest facts and that she manipulated the hours worked by her and her family members so that they would have pain salaries they would not have received otherwise so in that respect mortel is completely on point with the only difference being that and more tell the employees  dishonestly obtained commissions they would not have otherwise received but for those dishonest facts and here mr vasquez obtained salaries video dishonest acts that she would not have pain obtained otherwise but for those dishonest facts in hartford the hartford case not only does it discuss more tell but it goes even further to explain why it was reaching to the decision that it was and as it got into the actual plain language of the policy which it also found to be unambiguous it looked at the phrase earned in the normal course of them point and it looked at the way the exclusion was written and indicated that if that phrase were to relate all the way back over several commas to the word commissions then it would render the phrase meaningless otherwise and i think that's the crux of this issue three b c really emphasizes that this was best buy miss bascom however this is not a an insurance provision that covers any form of theft in fact the word theft is not present anywhere in the policy provision and rather it covers employee dishonesty and it lays out several factors that must be met in order to for it to be covered and then also provides an exclusion that includes these categories of employee benefits and then uses the phrase and other benefits earned in the normal course of employment because as the hartford court make clear it cannot just go on ad infinitum naming categories of benefits that might be earned in the normal course of employment so three b c wants to indicate that she could not have earned salaries because these salaries were not for work that she performed but if that's true then this entire exclusion would be rendered meaningless and fact you can sure you cannot dishonestly earn a salary and that's why the contention that three b c makes in this case is illogical and it's also the reason why the cincinnati court was incorrect in the limited reasoning that it offered to support the decision and the courts around the country that are not only site to more tell but support the reasoning of mortel has made clear the faulty logic that's contained in the cincinnati decision to three b c s contention that this provision clearly contemplates bonafide salary disputes rather than employee theft it simply does not say that the plain language of the provision says nothing about bona fide salary disputes so i'm not sure where that's that's based on but it simply cannot be written into the policy and order to support their position regarding the oxford bank case as we indicated in our brief the oxford bank case did not involve this exclusion at issue so it is ultimately irrelevant however i do believe it's worth noting that in oxford bank the issue was whether a check kiting scheme was covered in covered by the employee dishonesty provision that was present in the policy at issue there the fact a contention that if it doesn't cover this type of theft as they call it then what would it cover because they contend that it's a loser e but the fact is this would cover forging checks this would cover unauthorized f raudulent use of a company credit card there are many different categories of dishonest acts that would be covered by this provision and it simply excludes amounts that are categorized within the  numerated categories you know mr zelinsky three b c s representative admitted it deposition that the amounts obtained by mr vasquez were paid out as salaries they are taxes were paid out of it it was on the company's system the only difference is she performed dishonest acts to increase the amount that were paid out of salaries much the same way the sales people and more tell dishonestly performed a dishonest acts in order to obtain commissions that they would not have otherwise have received there really is not a split among the courts on this issue not only has no court including the cincinnati court found the term to be ambiguous but courts across the country are in support of the reasoning of more tell and have reached the same conclusion the th circuit that we cited in our brief concluded that a dishonest employee who gave an authorised pay raises to her cellphone another employee excluded is excluded because it's an unauthorized salary due to dishonesty and i did not exclude that then the word salary would become mere surplus one of the most on point cases that we cited in our brief was the th circuit and the r j enterprises case in which a dishonest employee overstated the number of hours he had worked on his time cards that is exactly what happened hit dishonestly overstated the number of hours that she and her family members had worked on their quote unquote time cards because in this instance it was an electronic entry circuit reached same conclusion as more tell because they stated that the courts must strive to give each word of meaning that does not render it superfluous the simple fact here is benefits that are actually earned do not result from dishonest acts and that is why the hartford court as well as the th circuit has indicated that that phrase at the end earned in the normal course of employment does not relate back to salaries because salaries cannot be earned in a dishonest a manner even judge fullerton mentioned in his analysis that the distinction between earned and unearned is irrelevant here because you cannot dishonestly earn a salary that by definition would be an earned and so therefore the dist the application by three b c of the furries earned in order to acquire the salaries to have somehow been worked for in the by the employee simply does not make sense and if that were the case it would render the phrase  dishonest tax so you know going back to the the unambiguous provision here that renders the argument that it must be interpreted against the insurer irrelevant because the simple fact the term salaries is not a big us the simple fact is dishonest facts were committed in order to obtain salaries which is a specific category excluded from coverage under this provision the point that syndicate that a reason we should overturn mortel is because they feel this was an injustice because the provision should cover theft but again the provision does not mention best anywhere within it be seen as categorized to the actions of miss fast as to constitute theft and an effort to indicate that this provision should include it but that does not offer them any benefit because the provision does not only not only does not mention that but it also specifically outlines the manner in which the provision offers coverage and again that would be for example a check kiting scheme as was an oxford bank that would be fraudulent use of a company credit card that would be forging checks all of the monies obtained through those dishonest actions would not fall within the categories that are explicitly numerated referring to that was contained in a footnote of judge fullerton and i do not read it as suggesting this court should overturn mortel i read it as him feeling that the plaintiffs  rights they believe that this was an unfair result based on their reading and interpretation of the provision but the fact is there is no basis for their interpretation of the provision to have to provide coverage for these actions because the explicit language of the provision excludes coverage and i think the reason why that was indicated in the footnote was to provide an egg knowledge meant of plaintiff good faith basis for wanting this provision to cover this and stents but he also recognize that not only is more tell binding precedent on him but he also recognizes that other courts have reached the same conclusion the tech to appellate court that we indicated and we cited to in the dict and case you know pointed out that courts strive for uniformity across jurisdictions especially when the language is identical and that is the case here illinois is currently in line with numerous jurisdictions across the country excluding the alabama supreme court and by overturning hotel here and agreeing with plaintiffs position it would create a split jurisdiction where illinois is the outlier and interpret ing this provision and to the extent that there is injustice here the fact is insurance companies including state farm has relied on the more tell decision for over thirty years in drafting the policy language in which that policy language was found to be unambiguous and so reversing mortel now would do a great injustice to the apple leaves as  via a paycheck through the time card system either as commissions are bonuses are within the control of the employer that is much different from an employee writing on a check them out and then attempting to cash it they cannot control that they cannot control an employee who manages to crack a safe and reaches inside and takes money that is not there so i think one of the reasons is because it's a much more above board category in the sense of salaries the fact is this was all documented and on paper and as mr zelinsky representative testified to after this occurred they put into place a policy where an employee salary all of the sudden makes a huge bump then they are notified so they can catch it at the time that happens i think that's one of the reason but certainly not the only much the cuff them of the industry my understanding is this is the custom of the industry i have not come across a different provision not to say that given the complexity of business relationships one would not be drafted if it sought after but i have not come across an employee dishonesty endorsement that differs in any substantial way from the one that's at issue in this case and in fact this exclusionary clause is pretty common across the vast majority of employee dishonesty endorsements that i've seen the only possibility that i could reasonably  foresee is that it could this exclusionary clause could be deleted if you know negotiated when discussing premiums in obtaining the policy but of course that's not speculation decisions and none of them are binding that's correct in all the special court cases they were interpreting either state court or diversity jurisdiction cases in accordance with the state that were within their circu but the interesting thing is that they actually cited martel in more than one of the cases that you're talking about yes they did i think maybe part of that is because this this this exclusion is was relatively new prior to mortel and in fact was written by the insurance industry in order to make it big us so i think more tell was one of the st decisions to interpret this and under a factual pattern that's similar to this so the other courts were looking for supporting precedent again i recognize that speculation but i think that mortel is one of the st decisions to interpret this exclusion be forged would be in the possession of the employee it would be taken to a bank and then cashed for their own benefit at no point between the point of possessing the check and the check being cashed would the employer have any the payroll system that payroll system did the appropriate calculations the checks were going out and in fact there accountant mr zelinsky and its partner had access to this system that ms mask was putting these numbers into so i think that's the biggest differentiating factor between forging checks and the fact pattern that we're presented with here ok and after want the sensitivity insurance case that apologize yes i think the biggest the critical error that the cincinnati court made in reaching its conclusion is there's a phrase that the cincinnati courts that is what the insurance company w us do to rewrite the policy to say that any amount designated as salaries are excluded that's to pry that's the crux of their reasoning and i disagree with that and other courts have disagreed with the cincinnati decision because amount doesn't aided the salaries are in fact salaries and the term salaries is used in the  the fact that the term salary is used would include designated as salaries and i think that's the critical error that the cincinnati court made and they didn't offer any other reasoning to support their conclusion it was a fairly brief decision actually and it's logical errors including that one that the other courts that have disagreed with cincinnati and actually agreed with all have all   because the work was not performed in order to earn them and that is why the hartford decision was was precious and pointing out that the phrase earned in the normal course of employment cannot possibly modify the word salary or in that case the commission because it would be rendered subpar flawless you cannot this on a fully earn a salary the fact that it was dishonest means that the salary was not earned given an annual or a monthly basis as of their salt supply and it was given to them regardless whether they sat on their hands or or fought a cig loss or vandals and  salary is a amount of cap and sation that's paid whether you work or not where is an hourly wages based upon hours so my question to you is this doesn't make any difference between a salary and earn wages or hourly wages it does not and the reason why is because with hourly wages you are still yes you're being paid for the time spent but there is an expectation that that time spent will be spent performing your job duties if needed i think with salary it's expected that you're going to perform your job duties for the compensation that's agreed upon and with hourly wages there's an expectation you're going to perform your job duties with the understanding you will be compensated for the hours spent doing so so whereas you're correct salaries could represent a possibility that employee does  wages you'll still be paid for that time but you weren't holding up your end of the bargain by performing your job duties during the time that you're being paid for and that's why i believe that's a distinction without a difference as it relates to this sure the only other thing i would add is to the extent you do draw a distinction between salaries and hourly wages i believe the hourly wages would be covered by the other employee benefits and in the normal course of employment which was the entire purpose of that phrase was because they could not possibly anticipate the numerous number of categories financial benefits that are earned by employees ok thank you in our papers but there are also i believe at least some of them are cited and judge for tens opinion as well you know on this issue of the definition you know if you go it's hard for courts specifically stated that the term orne earned in the normal course of employment was included to provide coverage for losses resulting phone earns and then there's some dispute between three b c and her as to whether or not they should have paid her a little bit less for d the work she did or she believe she should have been paid a little bit more i can't even say it but there must be one but yet not of the court to decide it did have that it's ambiguous so how do we how do we you know deal with that well i think the commonsense way to deal with it is to look at the language i mean is it ambiguous and i believe the answer is that different interpretations of the same language so i would say that in and of itself that is the definition of discussed but if there are inconsistent findings and there are there are there some outliers and then there d there is what would be known to the majority you know it in our  just because they are inconsistent doesn't necessarily mean it's ambiguous it could also mean that the reasoning or the interpretation by one of the parties is not reasonable to the circumstances and the the industry as well then also correct i think it's also correct when you're circuit the th i think it was on and salaries and commissions are nevertheless bills salaries and commission and therefore belong to the generic category of employee benefits