claims more than a month in advance of trial immediately recognized the policy coverage defense numbers close at defense twenty one never communicated with insurers deerfield construction and gamble with more than one million three hundred thousand dollars of you may create a conflict of interest why is that relevant under the terms of this particular policy which simply calls for prompt you notice not prompt notice when it becomes apparent that the layer of protection is issue in that case also could not afford discretion to the insurance company but rather the court noted that because it is an access policy that only applied after exhaustion of the policy there was some discretion afforded to be insured here the landmark policy deerfield also thought that and it turns out everybody's wrong you know for whatever reason illinois jury comes back with an enormous burden for this victim in the underlying suit that's the policies nobody wants a lot of litigation over discrepancies between other layers of insurance as kevin o'connor landmarks claim representative testified he was kept up to speed and he did have information to particular policy doesn't include language that confers any discretion on you about when to notice on your client when notified it's just as prompt notification when you know that you're going to be to that question and i would state that deerfield was aware that landmarks policy only private coverage after exhaustion the primary policy and that's what landmark policy and right that there is a reasonable time frame which provides notice based on when the insured recently determines this interest coverage and that's why there leads to be a look at all the facts and circumstances and not just an analysis of the in addition to the facts that i just mentioned your honor there's also the obligation to on behalf of american states insurance company to notify deerfield of a claim that may exceed the primary policy limits and no such no such notification was ever given to i think part of the issue before the court in reviewing this is looking at the the roles that the primary insurance company has compared to the excess interest only course of acknowledged there are systematic differences between the two and the primary not consider earth rather did not give appropriate way to the consideration that landmark applied only after josh and of the primary policy of the one that is considered the facts were tendered and preserved by american states such that when landmark was given notice landmark make its own evaluation of the case this is shown that when the landmark received notice it to evaluate the case as being resolved within the primary policy limits it only placed one dollar certainly seen that the briefs so what you're going to i mean there are a lot of cases where the question whether one of these brokers is the agent of the insurance company or whether it's the agent of the insurer it comes up in the general rule is it is the age company and i'm speaking to a different obligation the obligation of identifying the policy coverage defense so that the insurer can know whether or not the policy may or may not be there to withhold that information for should your field or or the people defending  for this last is completely inconsistent with this belief at the time that she at that point in mark excuse me actually did not have to provide coverage to deerfield and based upon that the case was tried as if when mark believe that your field had no personal exposure seems like that's an argument that strongly indicates that landmark should have had the opportunity to participate more aggressively because otherwise it's free money you know land excess policy that's a moral hazard we're respectfully on or i disagree and i believe that landmark allowed itself to be in a position where it both rolled the dice on the judgment and if it came up less than a one million dollars it did not have to pay a dime and also if it came above one million dollars it too did not have to pay a dime because it could force your bill to pay for the excess structure and  difference between coming into a case approximately six weeks before trial and having to rely on the record developed by the primary carrier and their in house defense counsel as damages as to experts  and they didn't really care about i guess it was really over the low end of the high low not high sure so the i think the word participate is a matter particularly described when marse conduct accurately try to do anything really until the one million and limits of the under one policy are exhausted and so here there was never a request or ram it was never notified that american states put up over one  record is unclear as to what of the hi lo discussions landmark actually knew but the fact of the matter is that american states was gambling with its own money at that low american states could happen could have continued to negotiate that low seward by negotiating on that low i was i think it was saving one hundred and fifty thousand dollars between the demand made by the underlying plaintiffs and the offer being made by american states so for that reason for those reasons just in speculative language indicated anything that you would have done differently had you received the notice of the day the accident happened for that matter if you gave the lawsuit was filed it's happenstance i mean and i guess take place which americans cancelled but as an additional note access ensures when they're given notice and monitor claim often associate in council to additionally the prime insured and to help develop the case where you have a situation that is here where american state has its in house defense attorney defending the insured and certain expert discovery isn't being pursued certain damages are being explored and i think there is evidence in landmark set aside for this case of the dollar and it sounds like you really don't think you're facing much risk of a payout that that note next to money from landmark is part of the claims filed it was based on what the primary carrier was reporting as respects liability and as respects damages i don't think it i think that it likely would have been different had landmark had the opportunity to be involved in this case  defense perspective and monitoring perspective no one ever i think there was testimony of a specific witness who testified as to how events unfolded is giving rise to the underlying accident and i think that there was a landmark would have had the so you're looking at the duties gallagher had or the functions it was performing as securing the policy accepting a couple of premiums right there were payments made through gallagher correct that gallagher ultimately gave notice and two thousand and fourteen but just because they gave notice doesn't mean that they have a legal duty to give notice and actually don't they don't that are opposing each other and in the same case in the case against landmark they're arguing that arthur j gallagher is landmark's agent and the case against arthur j gallagher they're saying arthur j gallagher is our agent and more than an insurance broker they even had a duty to report claims on our behalf so those are two different arguments in different cases that don't necessarily square the the the client that they didn't believe a claim was covered and therefore the client didn't report it to the insurer and ultimately didn't get coverage for that claim because it didn't reported the illinois appellate court there actually found fiduciary duty they have for anything they do in that regard but they still have a fiduciary duty if they do something that's not within their license specialty that's not within their specialized knowledge that interpretation run addressing state law claims in cases where there are equally appealing interpretations of state law where one would expand liability and one would restrict law and that's a rd reason why there's no reason to reverse the district court here on the nd question whether the district court denied leave doesn't matter there are primary carrier asking about if there's excess coverage it was years later and she said that they'd been off the account for five years but they did ford notice on the landmark so it wasn't a testimony that it was prejudiced wrong as they admitted they would never be able to control the primary policy ability to settle the case or insult themselves they testified that they received a much coming kind of testified that he received which promptly was kept up to speed