good morning again our third case for this morning is madison mutual insurance against diamond state insurance mr miller on davidson's wrongful acts as neighboring law landowners as opposed to any professional breach this is davidson committed in connection with the sale of the property in one nine hundred ninety nine i can't get my head wrapped around your sure in this goes to this to the appropriate standard for reviewing a complaint for purposes of the duty to defend a set court's other precedents on this issue we must look to but we must first be construed the complaint liberally in favor of finding a duty to defend number but surely that doesn't mean that you know every piece of background information in a complaint is enough to cling to and make it related to all other complain mean i'm i'm concerned about the same thing and of course we're all aware about the way the duty to defend cases are are addressed but at best the allegations in the twentieth levin lawsuit about grievances came down on the property or are a little bit of background they can be deleted from the complaint in and wouldn't make any difference to any of the claims asserted we're on or that that's an it may be true your honor and it may be true that at over three hundred paragraphs for the first amended and over six hundred progress of the second amended that the overwhelming majority of the allegations could be deleted and should be deleted from a proper complaint however we must deal with i would respectfully submit with the complaint but i am but if it's but if you know you could allege in a complaint that the cubs won the world series and you know k there it is it's an allegation the complaint that doesn't advance any of the claims being certain when these party how how is the two thousand and six litigation resolved your honor frankly i'm not sure exactly how that litigation are solved i wasn't involved in the trial court proceedings we've we've been told that it ended in an arbitration in favor of ms davidson  that may well be right here well doesn't that i mean it seems to me that the the the fact that we've got background allegations about a prior dispute that has been resolved adjudicated makes this quite different from most of the situations that you're describing because a yes and theoretically someone could raise a frivolous collateral challenge to the outcome and if you have such a for collateral challenge were raised that would fall within a duty to defend i would thing but it's since we're dealing with the complaint as it is and it does not assert a claim based on that two thousand and six litigation it's a little hard to see why we should treat the complaint in two thousand and eleven as if it included such a frivolous collateral challenge we honor under the  standards we simply have to take the eight corners of the complaint as it exists and there is no such claim asserted your honor i respectfully submit that there is that the predicate facts necessary for the claim are asserted we've de without a permit yet i cannot with all respect you should be able to answer that question because that's your eight corners you know there needs to be something for which the permit or not in the dam is even ten gently relevant with your outer that alec those allegations about the lack of permit for the dam are incorporated into all of the counts so for malicious prosecution  for negligent infliction of emotional distress these these are those allegations are part of those counts because of the way that the complaint is written every count rolls into it every prior allegations so when we get to the final count  both complaints it consists insta sensually of every allegation made so those allegations are certainly part of each of the each of the counts but i guess i'm still resisting the notion that no matter how irrelevant have put something into a complaint then it makes that complaint related to any other complaint that's ever been filed with the same fact whether it was relevant or irrelevant in the earlier case it just doesn't make sense to me there are causes of action pleaded in the twenty eleven lawsuit and whether the dam whether there was disclosed or about the way the dam was constructed john does not seem to have anything to do with it or i'm aware of no case that is looked at the duty to defend and said well we're going to set these aside as time states or just set aside allegations based on the fact that they constitute your background or your contextual allegations i'm not aware of any woman in the illinois pleading that says that certain allegations don't count because they're background or content because they don't contribute anything to the stating of a cause of action that's what the illinois courts would say they wouldn't say and maybe the opposite way that i just have that and i'm also troubled by what seems to be a very aggressive notion of cause and sacked i feel as though you know maybe they should sue because the davidsons got married and moved down to southern illinois or maybe they should sue you know sooner or later they should to adam and eve because had not been for them there no one would be here and there is there's some extricated itself from the case by raising that and seeking to have any allegations that nature dismissed how are we looking at the four corners the allegations are made and what gives force to those allegations is the catch all request at the end of the complaints for all for the relief that is just not thoughts and it was that effect spans of argument too because essentially you're saying had it not been for davidson's misrepresentations about the permit status of the dam the driven says would not have bought the property and if the driven says hadn't bought the property then the davidsons wouldn't have engaged in this close to unbelievable time set out of harassing actions of planning things and you in many other ways harassing and it's just to to hang that all on and we'd like any other relief you can give us which is usually about you know damages equitable relief you know  it's not as aggressive as your making in your honor and i it is not my bag respectfully my position is that it is not clear what exactly should be deemed to be arising from the purchase of the property as a result of the failure to disclose the absence of a dam permit must judge hamilton point out that disputes over and done with anyway but that and that's true but that point does is irrelevant for argument related to that absolutely it matters what was said in that because in that two thousand and six litigation because that established the wrongful act then israel ledged again two thousand and eleven in terms of whether there's collateral stoppable that that if that were being asserted you have an i think a pretty good case for the you know we won this case ms davidson won this case and now we're getting this this is repeated collateral challenge it's frivolous greater you still have a see though is five the damn permit disclosure allegations we don't find them as five allegations that set the predicate facts necessary to hold a job in davidson liable for failing to disclose the absence of a damn permit  she sold the property to the driven so those allegations are explicit in this complaint and under the cases the dyna state cites those allegations matter when we get to the catchall requests for relief at the end for any other further related you can't you can see then i mean if i were to ask you right now to just tick off the actual claims for relief in the twenty and eleven underlying lawsuit none of them is about this well your honor all of them are about this you know they aren't there about you know slandering dr davidson and claiming that he's a murderer in there about planting crops now about driving a car too slowly down the easement about other strange things they aren't about anything to do with the dam or the two thousand and six litigation your honor but the but the point my my point is that the allegations about the dam in the field to disclose are made part of those their the pledge specifically to be part of each of those counts so i suppose in your honour's fair reading of this then they're not in a technical sense in it and i believe the sense that we're required to look at the senate of the court's precedents and duty to defend as they are part of those allegations but they don't need to be because there is that catch all that allows the court to grant any other further relief and consistent with the the cases cited by diamond st the catch all for the requests for relief can be allowed to allow the court to fashion relief based upon the allegations and so when the when the allegations are there as they are in this case the court can fashion relief  it's already been resolved through two thousand and six yes that it that's right up well it was resolved at some point i'm not sure that it was resolved when these complaints were filed but madison mutual for that proposition relies on one third paragraph on thirty six of the first amended and to forty eight of the second amended the that allegation says the davidson sued the driven for slander because the driven said sued the davidsons for fraud when the drippings purchase the property and then it says i davidson knew the dam wasn't permitted but failed to disclose this now that is a statement of fact the diamond state says we have to ignore that statement of fact as a predicate fact for a claim in this section because it's couched in terms of what was pla another complaint in the i e reference which is it seems unclear the way that it's pled my point your honor says that first it's a fact it's a state in effect and a statement of fact a fact doesn't change it's alleged that this is the fact that put that take that fact out of the complain essentially to void out that fact based upon the utterly ambiguous context of this reference to the this other complaint or actually two other complaints because we submit not i kind of losing my voice startled some of the and i think your honour's are correct the underlying complaint which we did look to the four corners of does not and as i think has been admitted now state a clean that relates back to the two thousand professional misconduct by mrs davis as a real estate agent when she when she to hear that there's been an admission that there's really no such claim and if you look at the reply brief i think the argument that they're trying to make is there's an emotional distress claim and there is a negligence claim and because these facts are alleged just studying for the history of the case that somehow transforms them into a claim pointed at allegation that mrs davidson oh the dr and secure a duty of care is rude later but they chose to act recently which would would you kindly discuss that as a whole and it concludes by stating they owed a duty as neighbors to behave reasonably not to harass and i'm not going to detail the acts we know there are pages and pages of them in that fashion so it's really not pointing the theory of liability the facts are not pointing to mrs davidson's earlier conduct and the same is true for the negligence claim they  the permitting process and trying to like control who would do the permit what contract or would be used it relates nothing to what happened in two thousand sets now as far as the two thousand six litigation is concerned i understand that that was understood by diamond state to be arising out of her professional activities so can you illuminatus on whether that case is over once and for all and how it ended as i understand it we've heard there was we prevailed in the arbitration and that is a fact and then the the case was globally subtle i believe but trial court attacked the resolution of the two thousand and six complaint that even if you thought it was frivolous they had no basis for upsetting their judgment you would still owe a duty to defend if it rolls out of that two thousand and six complaint yes i would agree with that but but this can playing nowhere does that mean try as you may the case law is clear for an illinois if you don't we're not ignoring and then i'm going to sum up because my place is failing you have to view it in time tax of what the claims made policy covers which is professional liability the proper coverage vehicle for this soon was the more general liability provisions in the homeowner's policy which covers this type of thing and respectfully i would ask that you affirm the district court's finding that we owe no duty to defend and because that is are under this court's precedent the question of whether appointed alleged in the second i'm convinced he took twenty eleven complaints is irrelevant the question is whether there's a potential claim there is a potential claim it's based on the damn permit disclosure allegations and the catch all requests for relief at the end in terms of paragraph five twenty eight where do we find that we have to worry about a potential clean it's not actually yes your honor that's in a pan tilt this and all the decisions that we cited in our brief and i think it's extremely well established principle that only protect in illinois that only put we look to potential claims we don't need to find actual claims the i don't have time to go into more detail cases are brief to address in terms of paragraph five twenty five that was a fallback paragraph if we read the whole thing it can still be read to allege a general duty of of care our main paragraph for supporting the breach of the duty of care what were our paragraphs three twenty two of  count six in the first amended and paragraph five twenty eight of count eight in the second amended complaints thank you all right thank you very much thanks to both counsel will take