oh i should i should mention that our colleague just says smith is not here because of a medical situation in his family he's very familiar with the facts the briefs the record the law and will listen to the oral arguments before defend case ok that was a case brought oklahoma federal court under the notice pleading standard the allegations in the complaint included the claims include an oklahoma state law claim for interference with business and contractual relations in notice allocations included that riders and expressed disapproval of certain bills of any attack plan or consideration to add champaign as a distributor and then also customers quote determined not to purchase aluminum products from champagne metals because of defendants conduct since its notice pleading and then obviously you go into discovery and more information is developed and  depositions examples they were given these are included in a summary judgment decision that was granted on behalf of all defendants against champagne by the federal district court talking about shots being taken at champagne by writers and other defendants and when asked what it was give examples of what the shots were that were taken by writers and other defendants that they couldn't do the business and if they gave us the business we would fail it was done with both suppliers and with customers basically saying incapable incompetent unable to service the business was there an issue in this case in terms of the timeliness of the notice of the insurance company no there wasn't your honor it was provided timely what about  is it true that in order to get coverage for what you're claiming here the claim would have to prove injury rising out of the statement that the spirit goods products or services and that's what they're saying that's what the and it really goes hand in hand this is a law developed with unfair competition that you're going to be disparaging your your competitor and your competitors are going to claim bets unfair and we've been improperly disparage and that's what  being asserted against ryerson but what about your colleague who says that it's inappropriate for a cork a law or us to rely on these disparaging statements that are that listed in the complaint they are their catch is exhibits part of the pleading and droid pound chip exhibits a patch kind become part of pleading and that they were actually specifically admitted but if there was no response they're deemed admitted under the law so they were part of the pleadings they were part of the motion contractual ation ship to be of business disparagement case in the case of the underlying circuit court the circuit court contrary to illinois law respectfully that a very restrictive reading and only read the  trust claims there's nothing in the underlying court decision that even references the state court tortious interference claim provides any analysis that the state court tortious interference can and strictly strictly and prescriptively focuses on any  claim and your honors if you look at the case on the converse is true because disparagement commercial disparage resign outgrowth of unfair competition claims these kinds of claims go all together hand in hand violate the principle that if any count at the allege in the complaint fos within the scope of the insurance company of policy the insurer must defend also cited cincinnati insurance another seven circuit case involved tortious fear interference were merely the allegation concern over mr schumacher is the plaintiff's character was sufficient to trigger a duty to the family and then a country mutual decision of this court made very clear that you don't have to plead a separate cause of action and separate elements of a cause of action that the test those whether there's any allegation at least suggesting potential cover that we have very explicit allegations here that give rise to the possibility and potential coverage two of the leading cases and there's a rd but it that the facts don't apply here are failing in country mutual and they both apply the same basic standard and there's you language use it or paid interchangeable le xmark whether a statement is fossum or misleading lexmark uses words to criticize and quote unquote negative or misleading negative or misleading by competitors couldn't services made or that tended to influence goods or services when the circuit court's decision address these in each instance it's try to distinguish them by saying and fail and the statements are made to the public and press enter mutual the statements made to the public failing contains a specific section adopted by country mutual where it's not in the policy basically publication under paghman understood sin black's law dictionary is when you convey it to a rd party and because of personal injury is different from advertising injury advertising injury means broadcast it broadly personal injury by its very nature is going to be an oral communication to a rd party and that's exactly what we have here that's the only w get this coverage is when you're communicating it orally to rd parties and here we have very clearly these disparaging statements were made to customers and to suppliers and in fact the circuit court recognized  negative statements it is elijah in the complaint negative statements are made by rice and the suppliers that's another key issue because the case is s consider in annoy are in the context of customers but the coverage is not specific to customers it applies to statements made to anybody so it would include suppliers and in this case it's clear that the same allegations it's expressed the circuit court recognizes in its own opinion there were negative disparaging statements we believe the trial court erred in dismissing the claims a start with the consumer fraud claim that really wasn't an amended claim that was a st time claim based on information that was obtained as a result of another trying to maintain control of the facts was a big bogus agency business so it was basically putting its other financial interests and its other business ahead of rights that never disclosed this and you can see from the communications that we provided we s do it and then misled riders and say hey i g s the obstruction and he's not taken our limits they want us to pay for the defense and they get the pick the council controlled and we've laid those communications out has told them we've got a i g it's fine we were able to get a meeting face to face with a i g claims handler senior official from from ryerson and they said no it's travelers they haven't provided their limits immediately after that traverses show up face to face but the col also was made t traverse to get we've got a i g saying it you and they get denied it and said that they committed and have their two million up so they misled rice and rice and spending money they have independent counsel there related out there was an emergency motion that had been which was the amount of your judgment so you affectively lose you don't get a defense you don't get any protection from your carriers and the interesting thing is we cited this in our session you had the protection of the twenty five million from the excess of that certainly came put that up by that initially whatever that there are potentially on the hook because they're the excess carrier for illinois national right but if they did not put up their policy in lieu of a bond to happen right well update there was never a reservation of rights prior to trial actually going through that they should have told us right away that they would put up their policies that's their obligation there was no reservation prior to a jury verdict by any carrier so at that point had they simply said we're putting up our policies recommending our coverage and we're going to put them up in little bite we would have been protected we would have to got through this entire ordeal had a question for the underlying case there were it's still coils had been delivered this person was on the way back and was independent trucking company so the whole issue was whether illinois bob would recognize this trucker and the trucking brokerage service to be an agent that was my understanding y for everybody f t oh yeah if your insurance companies are squabbling and can't resolve their issues and you have to get your own lawyer to knock their heads together your insurance companies have to pay for your lawyer yes but your honor the difference here is there wasn't a reservation or rights hired to verdict so there shouldn't have been and i need i think the insurance companies either insurance company neither won until there was a verdict some either hit with a verdict and now there's this backtracking ok now traverses time it telling  correspondence we wrote it we said we've got travers because we've got the two men so we in essence because now we're exposed because we don't know just trying to deny coverage or at least raise reservations as the coverage is uses your money so we have to take steps to protect ourselves so that's a serious issue and the travelers told us that they had committed it you know so it's not that it's the misrepresentation by translators as long as well as the sort and against the defendants that i believe is the end of last the only issue that they're really fighting about on appeal was whether or not there should be legally held agents as i understand that there were prior illinois cases that in that context that it would not be an agent that subsequently there were some decisions that created some doubt so there are as this issue as to what illinois law really sad that agency issue i mean the way it was explained to me just to put  if one of us sends a package by federal express and we use federal express regularly we get some break because we use federal express and not you b s and on the way back to federal express driver crashes into somebody's back federal express driver could be viewed as our agent that was the argument nutshell as i heard it or thank you have but anyway it's very clear that there's no there's no reliance factor so judge procedure was focusing on that and we asked him after we heard what he had to say so we could consider this at the hearing could we have these three please this is the st time we played that plant based one decided based on there being no reliance which is no element which we believe we plaid but then asking that once we heard from judge garcia could we have an opportunity replayed and repeat other claims and we were not allowed to do that  and fifty five when the interesting things that we put in there is travers the same travers in the pennsylvania case where is rows were reversed it was sitting in a g s position and was the umbrella carrier with the big twenty five million limit and there was another primary carrier with two million limit and basically argued that because it didn't tender its two million that was bad faith and traveler the bottle bath claim against the and they had on schools conflict they were acting and they had not tendered their limits they're telling us they were committed they were telling us they were tendered they were considering the fact that a i g had requested them multiple times t swearing there's full coverage there wasn't ever a reservation all this time leaving rice and hanging to have to get coverage counsel have to get independent counsel path to pay for advisors and consultants on its debt refinancing is now being adversely affected of new york this is a series of dams that could have all been avoided had it just honored its obligation and said are we didn't issue a reservation of rights is a twenty seven million dollars judgment they talk about are we all have a common interest well being quite that had you also had a common and on threat on an emergency motion that had that motion been denied immediately right or since assets going to start to be attached frozen seas would have been a nightmare scenario the last was sexual and fifty five in fact did continue during the course of the case we would even argue in these proceedings it continue it by arguing a nd tender was a late notice when they knew that there was a time a tender their denial letter makes no reference to their being late and in many instances clear misstatements of the record let's start with shipping if we can nearly two decades ago the champagne antitrust conspiracy suit was brought against wires and against other wires if you have any additional information that you believe would support coverage for this matter travelers request that you provide moreover if the allegations should change please provide that documentation to travelers so that we may consider their effect on coverage yet it no time to dress and provide any other information to travelers the very next time travellers heard anything about the champagne case was nine years three hundred and sixty four days later when it filed suit in this court and was only then at that time in two thousand and fourteen that wires and expressed that there was somehow meaning to be derived from the isolated work disapproval in the complaint and that complaint travellers had no duty under illinois law to conduct an independent investigation to determine whether that was in fact anything else beyond the complaint tendered to it that might trigger a duty to defend the cases constant which would trigger do to defend when you went beyond the complaint you went to the response of pleading the counter claim of the footman expenses same with the holiday or case it was an additional insured tender and the question was how can we determine whether or travelers at any time except for the original comes right back in two thousand and four now why are some misrepresents the record this is very important it suggests the traverse head  testimony and what have you that it relies upon now outside the four corners of the complaint it says that it did not it in its pleadings that it had that material at all times relevant to the determination to defend that's that's travers only answer i that the documents speak for themselves there's no temporal you know it mission just that the transcripts are the president stated they speak for themselves so so for him for mr martin to suggest that in some fashion trave you're at all interested we can provide this we ran off into operation for today but i represent to this court that the all the materials that they would like your runners to consider outside the four corners and let them play the de ryerson possession at the time and tendered the complaint to travelers but it didn't give it to him and even in response to the question can you give us anything else that might explain to us why you're seeking coverage was any conspiracy case they were mean silent for just one day shy of ten years or so the documents which they now would like you to consider were filed under seal on april th two thousand and four in the docket entries from the federal court case in oklahoma or ninet had in their possession at the time a spiritual that's not to say that if somebody is engaged in a tortious interference they can't also disparage somebody they're not one in the same as mr barton would suggest but here in this state and this is what matters for purposes decision of justice wilson in two thousand and one and it's the three part test i think you were referring to before one the statement by competitors goods and services to which is untrue or misleading not negative your call you know mr martin  negative statements are enough no it must be about it untrue or on or misleading statement and the rd element is that this statement must have been made to influence who tend to influence the public not to buy those those services now citing the case writer since violated supreme court rule twenty three so it's not a leading case it's imminently distinguishable because there were there in fact you know statements made to the public within the meaning of the three par that's not a case that even should find its way into any of the papers that have been submitted before now here the any trust conspiracy case does not allege the champagne case did not alleges disparagement the two things that are opinion ok it is not a misleading or incorrect statement of fact per the rest twenty seven refers to one of the defendants stating that champagne is the biggest mistake in the last thirty years to get that as  also was attributed to prior slim's while that's simply not true we knew no such thing because it's not true take a moral at the th circuit decision on summary judgment in the champagne  stated that champion mills was the biggest mistake in his career then if he would have been a bastion pain levels it would have been stopped so the true fact is not that such a statement was made by somebody at r comment about champagne ok again there have been no take a look there have been no damages alleged because of disparagement other words causation is necessary as well this gets to just comment perhaps as well the key causation allegations the complaint the purpose twenty three and twenty five the conspiracy was the result of the conspiracy it was deliberate jumping from the market and other classic any trust injuries there weren't rejecting that argument and noting that it was it would they were trying to shoehorn any trust case into a general liability policy which was in permissible for a whole bunch of different reasons but i'll leave it to you to see what  trial they thought they had twenty seven million dollars in coverage coming out of trial they got a reservation was for magic not for travelers travelers never did anything but to convey to them that you know what we obligated ok and they had an interest and it was consistent with rice's interests the interest was to get russian out of the case and maybe doing something with his agency ruling on appeal there was a there was a you know some uncertainty about what the law was at that period of do what you wish with it it might have settled the issue might not have been appealed and it was certainly within two hours right to to to test that issue on appeal now that's not the same thing as saying is is why are civil war that there's an inconsisten legal conflict between the two was just different strategy the interest for a lawyer in that both ryerson and traversed would have liked to have seen the a not guilty here were versal of the of the judgment and both would have an interest in not being found to be an agent of ryerson or similar situation sure it's not to be an agent merely by the fact that they supplied the goods will be in hall so the legal both judgments below zero be affirmed thank you so much thank you we go directly to your honor's question was does not meet distributor criteria and ask him counsel directly whether that was under seal he said yes that's in the summary judgment opinion of the federal district court and it what happened discovery the parts that were kept confidential with matt competitor information portions that dealt with disparagement things of that sort were not sealed so that exact statement by writer said in terms of it did not meet distributor criteria it's contained in a publicly available doc back in may and since then sure it's a supreme court decision says you don't even have to pander to an insurance company the moment insurance company finds out that it's possible  insurer has the obligation to go get the complaint get the relevant pleadings contact its policyholder find out the error from asian and find out whether the posse holder wants a defendant it is the supreme court's as there is this kind of game that insurance companies play and we'll get to the game at the end of the letter because that's just a shifting of the statutory duty trying to shift it to right or center but it's completely untrue that that statement is under seal it's work out in a publicly record publicly available documents a summary judgment decision in favor of the defendants in the champagne case and was available which is computer keystrokes to traverse this notion that it's opinion or somehow we don't know whether it's true or natural that's a factual issue that's subject to being litigated in the underlying case your honor just recently issued an opinion in the hennessy decision which i believe was filed in april but then published in october which made clear then a coverage case we know sell to it and then term other buyers you buy for those damages are there that's what's being alleged as a result of statements or of being made that sellers would sell and buyers wouldn't buy those are expressed and those are the damages we're talking about there's this there's a riddle verified complaint that said that the underlying plaintive that the defendant did not have permission it was a verified complaint and therefore it was considered binding the court said it doesn't matter and insurance company doesn't have to keep up to that all available evidence and certainly a reasonable investigation would mean consistent with the cincinnati insurance supreme court decision that you go to the docket and you obtain the information that's a bad summary judgment decision that contacting ryerson saying we need more information we need to talk to you this is a thing that insurance companies do to try to shift their claims handling obligations under statute to policyholders saying if you got anything else well when you did not breach it's funny that they're trying to hide behind saying we didn't issue a reservation of rights when they didn't tender your honor asked the question specifically did you commit well yes the letter says exactly we committed our mounts but i'm having difficulty whether i said the word tender you know if you're honest with the requests we did have to request because they told us they did it that's part of the deception that they had put this money up and that they had was the obstruction and we were being they did not the part was made and travers again denied it and said that it put up its two million in limits and in ten or so that's just straight out deception and the fact that they can see oh you know you look at the cases  independent monitoring when they sit there and conceal had they told us we want to we wanted to fund this because we have concerns about our agency book of business and that's what's driving this at least they could have said that made disclosure to us but that was all hidden and this