judgment was entered granting has been mutual as declaratory judgment action but also because the court dismissed her counter claims against has been mutual and what happens in this case is that once those kind of police are dismissed briefs and i've read them several times as i'm sure my colleagues have you haven't yet focused on any of the the issues that are before this court specifically whether out of a contract or insurance there is a breach of contract they did this what exactly it they say those would be back right not well be discussed well your honor here here comes the rub all right these things happen for a reason for a purpose this third party complain ving there's a lot of hand wringing and there's a lot of it's the only real outrage but i'm looking at whether the elements that are necessary to be proved were ever in there and you start with the breach of contract action which basically says that we will not i know you are doing this but basically it says we will not represent you will not defend you or indemnify you if this is an intentional or fraudulent act and even if you take your promise to the stream what you basically have is a frivolous pleading and if it's a frivolous pleading there are remedies for it for it was pleading we have remedies for that but and intentional but really because of these scheme which you will wedge completely negs the possibility that this is a negligent act and so in my reading it falls outside not inside the the terms of the policy except for this right that the policy says that we will defend you even from false or fraudulent claims in order to do that the insurance company under its fraudulent and frivolous claims but the claim that's alleged has to come within the terms of the policy so the question is are these allegations in the third party complaint or fraud requests that's not what the the case is about it's whether this states the complaint alleging negligent acts against mr qian off so that the insurance company is duty bound to happened but for those things o that they thereby become negligent and i think we have to first go to the fact that there is nothing in that pleading that shows that mr cavanaugh acted intentionally in any wrongful way ok so if you're not acting in a wrongful the complaint against mr cavanaugh that there was a conflict between illinois state bar because the relationship you know nic bar and the person filing a complaint there was a conflict how does a conflict there right is result is isn't the promise conflicts is when the insurer continues to reject my present insured and steers the case towards an ultimate goal of unintentional so when i see retained you let's say in this case and told you by the way we specious which is false from specific they're completely irrelevant to each other something to be a complete violation of the ethics of the lawyer by putting in a completely frivolous act with out without our allegation without investigating it all but doesn't mando say that well here's the quote the court determined they had quote no duty to defend quote the factual allegations of the instant underlying action made clear that the insurance failures of this close information was allegedly part of his overall scheme to mislead and defraud the insurance trust of not based upon any negligence or potentially major negligence i'm doing so here it is really no if all they're alleging is an intentional wrongful act then how is it considered that within the exclusion for those specific types of fact under your breach of contract claim because complaint you can't simply say far far far more intent intent intent and then say well you know this is this is it i'm going to be fine you know you have to look at it you have to investigate it and you have to talk to your insurer so you're saying that this nor don't believe it's a novel idea with when you have the facts that you have in this case where you have the insurance company who takes the position that they took who approves crafts it creates a pretty complaint to gain since you hear that the only state bar crafted this baseless why did you seek one thirty seven sanctions against the third person against bogus for filing a scum for doing this they're completely baseless you can ask for your fees i wanted to dismiss the case  yesterday as well as i was driving back from the oral argument in mount vernon in the fifth district i was thinking not about this case but about the case i was to argue this morning before this court six division until i got a quality three o'clock that that argument was  having been said i can imagine what your honour's must of thought when this record was brought to your nine hundred twenty four pages you probably thought how long was this bench trial then find out it was a simple summary judgment on a garden variety declaratory judgments the duty of the insurer is when it's presented with a loss here it was a third party complaint in a marriage that malpractise action against mr carroll reed the allegations of that complaint in the light of the four corners of the policy the so called into draft that third party complaint or anything whatsoever to do with it other than pay the fee associated to justice mcbride about you know the facts for anyone groundless lawsuit is not the standard if we had a reply brief i would be able to tell this court that there's a case on point that the standard of whether there's a duty to defend is not whether a suit fits with relationship an insurance company issues a policy they had a section one fifty five count there's no basis for section one fifty five relief against eyes being mutual here there was no modicum of fact set forth in that count we did exactly what the they just plain and they file a complaint for declaratory judgment we did exactly what the law says we can do and will prevail and there was no argument none that the entry of summary judgment on the duty to defend was wrong instead the quarter of an argument about the experience of the scrivener as we heard about mr bustamante with mud give us your view of the merits of the complaint against mr cavanaugh in the theory of the duty that he was required to fulfill defend an outrageous throughout a complaint against him and in what really is before us unfortunately is only the issue of whether they chose the proper way to try dismissal under two six one five should have been quick and inexpensive instead it wasn't and that was an eye has to be unusual for all the issues with respect to the third party complaint where best before the law division judge it was judge flanagan who had that before not the chancery court which was only concerned with the duty to defend when judge mackey was looking at the complaint the third party complaint reviewing the policy his this focus was does this fall within the ensuring agreement not whether it can be proven conflict as justice quinn inquired about none of which is relevant to this case if if he's right that this was indeed a scheme hatched in the offices of i as usual to try to affect the settlement of the malpractise case based upon reducing the amount of money it would take to settle the underlying case with that have been wrong if it would have been without facts of of conspiring with a panel attorney to basically stick it to another insurer that just doesn't make any sense in this in a sense you're really not sticking it to the other assured if the premise by mr bustamante is accurate in other words there wasn't really a contemplation that mr cavanaugh would reach into his own pocket to satisfy this third party complaint but rather that there would be some type of a global settlement of this matter that would result in higher speed mutual pain less money out of the i know it's now practice claim that and i think you're certainly a very smart man and a very smart lawyer i think you understand that so the question then would be if he was writing was with to be any remedy for this it wouldn't be in this court with respect to the issues we have here it be before the law division that dismissed the third party complaint and i think that that's part of the confusion here the all the things your honor just said would be appropriately stated in a rule one thirty seven motion against the pleader of this nefarious third party complained not to judge mackey in the coverage case throwing up all these theories of conspiracy in one going between an insurance company that has a pretty good record and and a and a value to the french firm they use and abuse for years and that is what that's that's where our problem is with this case it doesn't belong here the counter claim was dismissed because it only had conclusions you mentioned just a substring the amount of smaller cases on all four justice hof wrote the opinion for the for the majority in that case and and decided that the policy applies to a negligent act the argument that they raised in their brief that the adjective negligent only only modifies the noun act and doesn't modify error in the mission i be entitlement to discovery you need you need something you need something a little more than the conspiracy theory and dismissed counter claims dismissed offenses stricken affidavits an affidavit that came back as a one every ruling that the trial court made was after a lot of reflection you've seen the briefs there are a lot of briefs in this case on every one of these contested motions and yet we haven't heard what the the court is looking at the summary judgment for the c looking at these other rulings if they have any basis at all on a abuse of discretion standard and there's been no argument that the trial court abused its discretion for all of these reasons and the supporters other questions i would ask this court to a farm the judgment for the insurance follow their party complaint against me right that they know this going in and so that's why they draft the complaint is such a manner as to deprive them of coverage because otherwise what's the use of find that there are you complain all you're seeking is results in the allowing of entrenched companies to get away with this type of conduct well put another way the failure to file a one thirty seven petition allowed your end of the one thirty seven petition would have gone against mr bogus and against mr khan a sick but not against the insurance company well maybe they would have third party did the ice behave like they ended up third party in mr cavanaugh because if your theory was right and they were acting on orders from above so to speak then that would be the proper way to deal with it but it still is the responsibility of the lawyers who signed their pleadings to in a situation where there