action in its entirety with prejudice ruling that no just the chabal case or controversy was presenting because the underlying injured plaintiffs lack standing to seek a determination of insurance coverage provided to the trophies ors where the insurer is defending the underlying action under a purported reservation of rights by subsequent order dated september twelfth two thousand and eleven the truck court denied plaintiff's motion to reconsider this appeal was taken pursu reversed respectfully because it was based on an eroding his promise the bio x standing to bring the action and thus there was no right case or controversy because state farm was defending under reservation of rights the michigan case is over now right trial court in michigan the duty to defend exists that case is still on appeal and has not yet finally determined state from continues to take the position that the trial court was erroneous in michigan and that it seeks to same understanding is well with the theme parties that might be true meaning that your client is not necessary in michigan found michigan but a real says so why would it be different why if we allow you to proceed obviously that is a potential sonali o so why should we let them proceed because buyer the injured plaintiff has a substantial substantive right in the outcome of the insurance coverage action we are not a party in michigan in and we don't have a right our interest in the insurance policy in the michigan case there and to suggest and i was submit your honor that stay firm is offensively suggested or argued in other cases that he can go off to another state adjudicate with a opponent that is just their insured and come back and offensively use the outcome of that case to extinguish the rights of the plaintiff the problem is if the court in the other case finds no duty to indemnify as well as no duty to and defend i understand your honor that the trial court ruled in favor of the plaintiff in michigan we don't have a final determination there our rights are still at issue now only the rights visibly the duty to defend but more broadly the duty or less broadly the duty to indemnify where which is obviously a significant right and interest of this particular plaintiffs because under the policy is to kill aided by this court and others in the state of illinois the public policy of the state is to ensure that injured parties get compensated and that insurance coverage is available to provide that compensation if state farm is allowed the wording sure is allowed to go to another state and adjudicate without the injured point if end that you present the possibility of extinguishing those rights with out the injured playing of being a party to the case and able to vindicate their own interests well i don't i would personally just someone one that they can't do that and we actually affirmed an injunction to prevent precluded from doing so and that can be found it three ninety one that's three ninety one eleven thirty six ninety three just for the general area of law about judicata would not apply and certainly we've argued that in other cases and it is to me alan would confirm that because we've argued that together in another matter the real question is the ability of the insurer to go off and get that judgment to present that to a court here and impact the judgment of the court and impact the underlying plaintiffs and create an atmosphere in which the issues appear to be preordained even before the presented to a court here and state farm is actually argued in another case that under the doctrine of representation that they can in fact preclude the injured plaintiff from taking it from arguing contrary to a decision that they would obtain in another jurisdiction in which we were not parties to be under the theory and again this hasn't been sustained but under the theory that the interest of the insured in the interest of the claimant visibly coverage is co extensive and therefore somehow our interests are vindicated by only having the insured appear in the case we've argued strenuously against that concept but they have taken that position and we face the prospect of having this court essentially say that may include a national class that doesn't subject the class action plaintiffs to in pursuit of jurisdiction in fifty states and there is no basis for this court to conclude and i have another case where i will be arguing that shortly that very question of how why would or should i say due process requires that there be minimum contacts and the filing of an illinois class action that may or may not can they filed a letter of reason reservation of rights in this case and so if we agree with you wouldn't we have to write an opinion that says in injured parties don't stand they found a reservation all right i'm sorry i let me try to stand the question because obviously ensured an insurer or some very close the elko decision says that we're an insurer has it has a concern about whether it's going to offer coverage it has two choices it may defend the reservation of rights which is what happened here or it may protect itself against a stumble by filing a timely deck action right that doesn't deposition against them to get something greater than that to what i want to determination now as well they have to defend me i think your honor i will have to candidly admit that i didn't come prepared with that specific case is that state farm issued an invalid to clear the reservation rights because there's a conflict of interest between it and its insured and therefore or whatever attempt it made to to reserve its rights is improper under that scenario your honor i would respectfully submit the insured would be absolute really within its rights to bring it back action and say they have asserted that they have a right to defend and control the defense in this it has the coverage now even though the insured can i just can't that and i respectfully believe the church would be in a position to go forward in that scenario and i believe that we do as well for of this court which said that the inch the injured party has a substantive right in the vel ability of insurance coverage that vast at the time that party is insured and that  so that the injured party should be able to come forward and say look we want to know the insurer not only is reserving its rights it's going to have to michigan and it's said to a michigan court excuse me give me absolve me of any responsibility for this case we're not even party to that case and they said we have a current case or controversy that exists right now we are they have affirmative no actually what state farm argued in its brief was that by asking to amend the complaint that we somehow waived all argument that we had properly alleged that the necessary facts in the original complaint and also that our objection to the fact that the trial could considered the issues of standing and just  should have been allowed to to amend the complaint very simply your honor to the extent of the court found that there was any issue as to the allegations of the complaint and now obvious in a motion to dismiss we're talking about the sufficiency of the complaint and the court found that we should have alleged articulated another theory under the complaint we should have been allowed at least to present that to the court so that the court would have before it a pleading to address the concerns that were raised by the court in the context of its r we don't believe that the court was correct in the first place but even if that were not the case then we should have an opportunity to lease try to address those issues the court right away first time said no never you're not coming back in fact the court even went so far as to rule on those issues when they weren't articulated in any briefing or in the motion that was actually pending before the court the the motion that was pending before the court that that was improper because their church party is is actually dr crohn not anybody that was the promise of the motion to dismiss were like your pets will clean that up will be presented to you in a way that makes that clear since that was the premise of the motion somehow oh based on one line in a reply brief we ended up in this other issue and that's why i believe at the time my colleague said to the court look let us fix the complaint and then if there is an issue as to rightness standing it cetera they can bring a proper motion and we will brief it per properly and we will address it to the court but that that was not what had been raised in the motion presented to the tr could you please conclude i want to make sure you have republicans thank you your honor obviously we have briefed these issues in our priest but with due respect and i understand that justice quinn and i have had an exchange of of of thoughts on the question of standing and rightness but we do believe that the right eye right kister controversy over insurance coverage exists when an insurer defends even when it reserves rights to contest contest coverage here the insurer question unequivocal in order to deprive buyer of an opportunity to litigate these issues the rights of an injured party against a lot of or liability ensure a vested at the moment the incident occurs giving rise to the underlying claim against the clinic which alleged their side to a declaration of coverage that's different had a duty to defend a party it did not ensure state farm moved to dismiss that complaint as it should have because the complaint was improperly and and the court granted that motion and did so with prejudice because at the time of that dismissal state farm was has been has always been defending subject to a reservation of right now i said that this appeal was about doubt because as judge when pointed out the michigan state court recently issued an opinion or an order finding that state farm has a duty to defend its insured which happens to be a michigan entity has a duty to defend the telephone consumer protection act claims th a class action claims in michigan that was an issue of first impression and that's were that court decided that under michigan law as was appropriate because it's michigan issued policy that renders this appeal moot and moot because there is no effective relief that this court can render and that is the definition of movements on appeal as such when discussed with with my opponent giving a saying that the first will there is no review which is the only properly read preserved issue because the trial court found during oral argument it was there was more discussion had about the fact that there is no distance of a controversy even if they were to a preserved defense the really is no just a controversy on the duty to defend question because the result would be a deep unnecessary advisory opinion that an insurer has a duty to do when it is in fact already doing now is like a in the record it shows that the proposed amended complaint which was basically attached to the motion to reconsider it realigns the parties the insured which was a defendant was realigned as a plaintiff and there are different allegations alleged respect with respect to the michigan then pending michigan back action complaint and all that would happen would be all that would be in front of a chancellor and they would be faced with a six one ninety three motion for same cause same cause of action same parties there's a lot of discussion i had by my own an about how he's not a party buyer clinic is not a party to the michigan to the michigan case and that they have no right to assert any rights in that case that's not true they can intervene and they have never sought to to take that path michigan doesn't have the rule that illinois does that requires insurers claimants to be named as necessary parties that doesn't mean that a dec action filed in michigan is not appropriate it doesn't mean that buyer clinic who because michigan court has ruled that there's a duty to defend and stay from continues to defend there is remains no no ability for this court to render effective relief requiring this appeal to be dismissed  never arise unless and until state farm takes an action contrary to its reservation of right has not withdrawn that defense and it continues to defend so unless until that happens there can there was never just a little controversy here between state farm clinic which is really the only question and there's only there's an limited instance where an insured tort excuse me a tort claimant can initiate a declaratory judgment action on the duty to defend question and of the insured or the insurer file the declaratory judgment action those are the criteria that was set out by the dial corporation case we don't have any of those satisfied here we have a michigan pending declaratory judgment action in which the duty to defend has already been adjudicated in the trial court level admittedly on appeal but still stay fine remains defending state farm is defending such a reservation and right it is actually done more than it is required to do under illinois law and we  true actually stepped off the bench reviewed the case and came back and said that's not what this case has the case says you have to have to deny a live coverage or refusal to defend such a restoration of right before just a little controversy can arise and that actually only makes sense because because the that issue becomes just by virtue of a judgment are some resolution of the underlying case which we're not there yet as we clarify what is opposing counsel here do you argue the issue of waiver make in their reply brief is that the issues are intertwined but it's one of the other and it's actually it can't be because it did the truck or probably dismissed the complaint that was before it before the motion to reconsider was filed that's really the only question on the motion reconsider which is really nothing more than a disguised motion for leave to file an amended complaint all new facts are brought in and those facts and that analysis then he's be reviewed sort of to a completely different standard what the court had before it when it dismissed with prejudice was a complaint that sought relief against the wrong party and alleged that state farm was defending its ensure its official reservation right there is no case in the state of illinois that says that that creates a vicious little controversy it does not fall within the dial effectively rendered by this court to the trial court result duplicative proceedings and would prompt a a two justice one three motion which in our opinion would be should be granted by virtue of the fact that the michigan case has been pending and is as far along as going back further the decision of the trial court in michigan was rendered in april of two thousand and twelve a motion reconsider was denied may of two thousand and twelve if the firms never argued that this case was moot until they stepped up right here i would submit that that argument is equal is waived and in any event it is not moot your honor this is still alive interest controversy because state farm continues to seek to extinguish the rights to duties of the insurer of the insured and the to i know i i've seen the case and respectfully i would submit that it's a not a distinction that bears in this case for two reasons one because state farm has affirmatively allege that there is a case or controversy that exists and they are judicially is stopped and they come in to this court and to say you can't hear from buyer because we went off to another state and decided that was a more favorable thing for the soul of the policy isn't it i mean now the trunk facts guy there the coverage claim is the case that was filed here and the underlying facts here and the plaintiffs whose interests are very much at stake and this court has recognized but again their interests are somebody received x number of sheets of paper and now there are many thousands of dollars that's what the individual injured parties stake is not actually your honor what the individual stake is would ending on whether the individual received multiple faxes from dr kapoor and yes it could be more than five hundred dollars but the individual claim is the statutory damages a specified by the t c p a who are the damages that would be recoverable under conversion had to return back to the primary premise here state farm has run off and attempted to extinguish the rights of people with interest in this claim by going to another state are more recognizes that we are necessary parties to determination of that case ol rog recognizes that our interest or rose at the time of the actual occurrence whether it's a small occurrence or a larger currents doesn't change the fact that we have an interest and that interest deserves to have its day in court and by allowing them to go to michigan you're depriving us of the opportunity to adjudicate it the decisions of this court going all the way back to recur when they may not actually be on all fours and i not arguing with the court on that nevertheless support the promise that we have a right we have a right to be heard and are right is no different than that of the insured and we should have an opportunity to bring that forward before this court or before the trial court and not be precluded from doing so based on the circumstances here and especially where the insurer has gone to and affirmatively allege the existence of a controversy in an attempt to avoid litigating with us and respectfully your honor we urge you to return the case to the trial court and have it proceed on the merits thank you very much thank you counsels for your excellent argument in your briefs this matters take another advi