all the insurance company has to do is hire an attorney and that's and that is it that you put it in the attorney then is responsible for the conduct of the litigation the law in this state prohibits the insurance company from some reason the attorney withdraws or dies that obviously the insurance company has to replace the the attorney but as long as the attorney goes ahead and files his appearance and participates in the lawsuit it's not i don't think it's clear and ricardo it's not clear look how to what exactly the they thought the attorneys did wrong and in this case it's not clear why the default judgment was entered there's a default order that was entered due to the client's own failure to comply with the stuff they at was followed later on about a year later by the default judgement and the default judgment itself is a silent as to why it was entered it's been my experience coming through with the attorney will assist the client in preparing discovery is that your things in practicing law i think sometimes that is the case but in my experience in passing law very often it's very difficult to preparing the discover the default order itself which says that it was the default was entered due to proven dela tours failure to comply with discovery it doesn't say it's entered due to attorney far as we know continued to represent him he never withdrew he was never fired his never discharged though that happened to say that there is a duty of the three to participate in litigation yes that's the duty  that participate in the litigation in your opinion i guess it depends on what's going on in the case if nothing is going on in the case that this case this case well i can't say because it's not what happened in that all the elements that are necessary to establish their right to summary judgment and what they're saying is that safeway you knew this attorney wasn't taking care of the case and that's just not true so if we had no indication that strays that wasn't order not a judgment but a default order what safeway did was safe we mailed it to the attorney not that safeway was required to do that but safe we did as a matter of course attorney we hired you to represent the clients and this this is your this is within your realm you're conducting this litigation we're insurance company we're not allowed to practice law we have to rely on the attorney who was hired to do that and the attorney has a duty as a matter of law independent of the insurance company has a duty to his client we're not trying to insulate yourself we we comply with law book how to has been the law in illinois for twenty five years how does says you fulfill your duty the insurance company fulfills a duty to defend by hiring an attorney to defend the insured and that's what we did and this is not like the the thorson versus rock case where the insurance company hired an attorney supposedly to defend the hospital but the attorney never files and parents never participate in the case in the case went on for two years and despite everyone's requests time to get his attorney into receipt when the insurer received notice of a lawsuit with a complaint containing allegations within or potentially within coverage of the policy it's the duty of the insurer to hire an no duty to settle a case but that's not the issue here and in this particular case since there was a coverage question and the duty to settle didn't really come into play we're talking draws there's really nowhere to draw that distinction if you depart from a how do you getting on a slippery slope what's going to be enough even the judge in this case couldn't tell us what would be enough she said well mailing the order to strike attorney strike wasn't enough and should've made a phone call don't doubt if we'd come in and said we all we did make a phone call to strike said well that's not enough should have gone to his office should have checked the court file who's to say what's enough once you get into micromanaging the attorney's conduct it's the attorney's duty how can a non attorney supervise and control an attorney in the conduct of litigation that's why we have attorneys this why attorneys are licensed in the state  wasn't made all kinds of allegations with nothing to support it they're making all kinds of allegations with nothing to support it and for whatever reason the judge below assumed that that was cracked but this is summary judgment you cannot  construe things against the respondent in favor of the movement we responded to summary judgment summary judgment was against us the judge should've construed all inferences in our favor in the absence of any indication any evidence that strays  didn't continue to fan mr della torre the question of assume that he did certainly can enter summary judgment against us by assuming that he didn't defend this is not here  bill for this particular case i don't know what the arrangement was i don't think it's pertinent that what's prudent is that safeway hired him and he promptly got into the case vacated the default and filed pleadings appearance and commenced his representation of mr reuben delatour and if there were any problem with that representation it was up to mr dilatory to either notify safeway or sue mr stein is it for malpractise h that the entitle to damages traceable to the breach and what would that be in this case the plaintiff has to show that ruling deltoid was somehow damaged by the breach even if you assume that there was a breach what are the damages headed to a fifty thousand dollar case from the get go because of the nature of his injuries and the negligence of reuben delatour then there was no damages even if there was a breach the plaintiff has a burden to show that the judgment would have been last but for some breach of the duty  just as in any legal malpractise cases there's a case within a case what they're doing is essentially charging safeway with legal malpractise that's not a cause of action that's recognized in the state but even if you're going to allow them to do that i think there's some basis for do that but if you allow them to do that they still have to meet the elements for legal malpractise action including proving the case with any case to prove the only way to do that would be through the legal using the that you have to prove damages traceable to the breach to the extent that will or conflicts with conway's limitation on their damages recoverable from an insurance company conway has to control no matter what you call this cause of action against the insurance company conway dictates that you have to prove damages traceable to the breach but in the way you're so you have to do this case within a case which is not what  what they're trying to do is they're trying to go through the back door or do what they can to through the front door for whatever reason reuben delatour chose not to sue attorney strike for malpractise maybe because he didn't think it strange that committed malpractise  maybe you just chose not to but so that's that's a story can't sue safeway for malpractise so we called it something else but really that's what it is he's saying safeway you're liable to me because this attorney screwed up would you say this this is  unique case there isn't the president's point i would say it's you needed except for the condo the exact details of what type of malpractise is alleged by the defense attorney may differ but otherwise it's right on point we have an insured who was sued the insurance company hired a defense attorney to defend him the attorney did get in the case and defend him to some extent insured unhappy with the result turned around and said attorney you messed up so i'm seeing you for malpractise oh in this case it into the attorney directly knew it but and an insurance company i'm suing you because the a prado says no you can't do that the insurance company is not liable for the mistakes of the attorney your remedy is a legal malpractise suit against the lawyer and that's the remedy here that remedy was available ruin dollars toy or there is no need for this court to create a new cause of action they're asking to create a new hybrid cause of action combining the torrent of legal malpractise and contract action breach of an insurance contract prove the elements necessary to establish entitle him to summary judgment they didn't file their own affidavit or deposition i ask that your first the summary judgment in favor of mr delatour and enter summary judgment in favor of safely thank you asleep at the switch for not performing their duty the insurance company received notice of the default and up for all practical purposes they knew that there wasn't doing anything factual background of the case and they request lawyer and writing while the case is under counsel do you have a piece that you can cite times which indicates that the insurance company has a duty to go beyond retaining an attorney for their insured and having him metropolitan sees it it's your position that the insurance company has a duty beyond retaining an attorney for their insured and having him file here yes your arse i think or else is what other duties that the insurance company had i think it's just a practical application that you have to you have a duty to defend your client under the terms of the policy you need to make sure your attorney is doing work you don't need to monitor or control you certainly don't need to practice law but i think a common sense attorney client relationship would dictate that that they have a duty to the insured insurance company should make sure that their lawyer is actually doing something according to your opponent the attorney may be guilty of insurer in this case the facts are clear that safeway was not fulfilling that duty they knew they were fulfilling the duty i think the general gist of the case what we can assume and what we can sort of read between the lines is that safeway was banking on winning its coverage contest in the back action they knew their attorney wasn't performing and they sort of ignored it what evidence is in the record that we can find that you can tell us about that will help us conclude that in the insurance company was aware of the fact that their attorney was not doing the the insurance company safer did have notice of the default according to documents c seven zero three the record according to your opponent she says that it was the attorney's duty to correct that default not theirs because they can't practice law but certainly they could call their attorney up and say what's going on were you out of town did you make an error is there a docking mistake and not the facts show that nothing happened after that notice wish i said that there is no duty to practice law there's there would be a duty to i think just a reasonable standard to follow up your attorney make sure that they are attorneys actually fulfilling the duty to defend the insured under the terms of the policy your oppone it's not a pro se litigant they rely upon the attorney they rely upon the insurance company to fulfill their duty to to ensure that your point also makes the argument that it was the insurer who was not complying with this well there's no evidence in difference between the other case law and what we have here and it's basically deriving the damages are being derived from preacha contract the authority that we've cited  your second couch all state that it's that the proximate cause a bill of the actual damages resulting from the breach in this case the breach occurred there was no defense for the two hundred fifty thousand are default judgment that was the essence what the what the court would be asking to do under those circumstances is say well what would happen if safeway had defended what would have happened if safeway had done this and none of those  commonsense step that the insured could have taken insurance company could have taken to protect and it's insured they chose not to thing went on for a period of several years without performing any defense i think the the main issue that distinguishes specifically addressed the issue of damage down to councils trying to get this court to follow federal cases and out of state cases addressing damages and duty  but as far as conway applies for the state conway's a supreme court case in conway says if you're going to hold an insurance in order to hold an insurance company liable for a judgment exceeding the policy limits it's got for breach of the duty to defend a scout to be not only the breach of the duty to defend but also bad faith and only entitled to damages traceable to the br and that's where you get back to you have to prove you know what were the damages from the breach they have to show that but for this breach the dam and the judgment would have been less but it is the difference here knowledge that the attorney is asleep at the wheel not participating that maybe they need to investigate and get another attorney but that's not the case here there's no evidence that a mr size that was asleep at the wheel i'm not defending and there's certainly no essentially proving the case with any case as in i'm out a train malpractise case because that's really what this is what they're charging they're trying not to call it legal malpractise but that's essentially what they're saying attorney screwed up so you're liable to pay that resulting judgment well even if the attorney must stop if the case was worthless let's say the case was worth three hundred thousand dollars because the injury was so severe and proven deltora was so grossly negligent well for whatever reason they only got a two hundred fifty thousand dollars judgment well then where's the damage if if that if the only injury was a hangnail and they got a two hundred fifty thousand dollars judgment because of the default because the attorney wasn't there defendant then then yeah there's some they would have to still have to prove the damages traceable to the breach i think would be a lot easier to prove it within the policy limits especially within this policy because it was a twenty four year policy but in this case safeway paid the full limits of the policy to the two other claimants there are three claimants injured in this this accident i want to draw something that counsel said and i think they've said it repeatedly in this case you keep saying it's only common sense to follow up check to call there's no cause of action in the state of illinois for lack of commonsense whether it would have in common sense whether or not their insurance company would have handled it differently that's not the issue what is the duty what is the duty and on the flip side of that you have what is the right of insurance company what right does the insurance company to have to interfere in the relationship between the attorney and the client to the extreme and that regard you get the willis groom case where the insurance company interfered to the extent between the attorney and client that caused the attorney to withdraw on the eve of trial leaving the insured undefended and the insurer was liable for that so where do you draw the line what is too much and what is too little interference i think that's insurance company to do more to comply with the duty to defend then to hire an attorney to do so and there's nothing in the insurance policy requiring an insurance company to do more than that there's nothing in the law or the insurance policy requiring insurer to micromanage or to contact the attorney or the insurance the insurer the corporal so in following massachusetts law when we have in fact illinois law that's right on point not only the the quote below is bound by the fourth this is a case this court is not the court below us but if it's well reasoned and it should be followed and if for some reason this court chooses to depart from ricardo i don't know where you would draw the line between what an insurance company can do and shouldn't do but if you choose apart from that you should publish an opinion saying that henceforward insurance companies you have to do something you have to intervene between the the attorney you hire and his client in the litigation you can't rely on the attorney to conduct the litigation you have to get involved and you should say with what that line is you have to call you have to write whatever it is but you shouldn't penalize an insurer like safeway who relied on they are the illinois law wrong standing illinois law by hiring an insurer an attorney to defend the insured and counting on that attorney to do his job  summary judgment in favor of safeway though at the very least the case should be remanded because the plane of did not prove the case thank you thank you counsel on want to compliment you mrs wells mr all over for your arguments