marketplace but mr stina was wrong because as a matter of fact there is such a policy it's called directors and officers insurance were dno the covers a wide variety of economic loss claims by rd par relying on mr astin it was represent misrepresentation mystery's e o was without the in her insurance the exactly when he needed it most which is when he sold his company in the body or sued him for tens of millions of dollars a loss that law for these misrepresentations this appeal involves two overarching questions whether as i indicated there is a remedy as a matter of why we believe there is and secondly whether this case should have been decided at the pleading stage as it was or whether instead there are fact issues that should go to a jury and that's what we believe to be the case so in the st overarching issue whether there is a remedy  the nd amended rd party complaint as well as the prospective rd amended rd party complaint stated claims for common law negligence negligence under the woman or insurance liability placement act now which it misrepresentation and the illinois consumer fraud and deceptive business practices act a lot of the briefing in this court as well as the briefing and argument below focused on the illinois insurance placement liability act and in particular the trial court's misconception and the farmers a act somehow prevents a claim and negligence against them and that is simply not true the act primarily as far as duty and the standard of care has one key effect which is it confirms that negligence claims are allowed to proceed after the enactment of the statute is count three and then there is also a common law negligence claim account for against mr steyn which also invokes the statute and then of course we also claimed against  but you're referring right now correct you are now right now the most significant misrepresentation made by mr ristaino himself occurred on march th two thousand a explain st of all of that quote was never presented in writing to anybody either of the drays years and no insurance policy was ever presented to them either only it was an oral representation by mr astin now that here is this quote for employment practices liability insurance that also included directors and officers liability insurance and in that meeting mr de raise you made the specific representation that d insurance only covers shareholder lawsuits and that because the appellant mr juries you know was the majority if not so shareholder of collusion revision his company it would provide no coverage to you know four that there is no insurance coverage for rd party claims for economic loss now all of that is flat box because directors and officers liability insurance does provide this type of raso important misrepresentations by farmers itself so in addition to an agency theory we have actual misrepresentations by farmers itself among those misrepresentations are st that training well that was not true because the only training that mr bristow had was in sales techniques and nothing about the scope for substance of insurance coverage nother misrepresentation actively made by farmers was that mr stayner could provide quote business insurance consulting services now this is in writing and documents sent to mr de resume in his company and a rd category of misrepresentation by farmers itself is that mr estate you know could provide quote the could offer insurance professional advice regarding the appropriate insurance products to address their changing needs and again that's in writing from farmers in making the determination of whether to buy dno insurance and it was mr ristaino is misrepresentations about you know insurance that would mr de raise you know not to have such coverage as i said exactly two things first of all it confirms as i said that the illinois insurance liability placement act imposes the duties of were very negligent that were stated right on their face and in that respect duty in negligence can arise through a voluntary undertaking in other words whether there is a contract is irrelevant whether it be a insurance agent might have more narrow duties under an agency agreement all of that goes out the window if the agent himself under took a more specific or broader duty and in this case mr stannard did undertake such a duty to be a trusted insurance advisor and that was over the course of thirty years and again we have all these representations including by farmers itself that backed that up and one of the key things that the defendants excuse me the counter defendants continue to point out in response is that farmers itself did not offer do you know insurance we don't dispute that but here is the thing as copernicus itself says this this is a direct quote scurrilous opinion and paragraph thirty nine if an agent's company does not offer coverage requested the agent may satisfy the duty by simply notifying the customer that he or she should look elsewhere for the requested coverage very very important so mr stanton had an obligation to tell mr pure reason and collusion revision that because farmers doesn't offer dno insurance they should go elsewhere collusion revision not to have that coverage now another important error made by the trial court was in believing that the various statements and representations made de raise you and farmers were merely opinion rather than fact but that is not true as a matter of law either for a couple of reasons st of all the whole determination of whether a representation that explained that what may seem like an expression of an imminent pinion actually becomes one of fact based on a couple of things most notably if the speaker holds him or herself out as having some person speaking has specialized knowledge and of course even those long trust the relationship over the course of thirty years on insurance that's exactly what mr to raise you know but we've now among the cases that explain these that since the briefing was completed in this case the st district decided the case proud twenty one christian trying to association versus pioneer engine and engineering and byron medical services that case now one of the most important is one proximate cause and that was a big issue that tripped up the trial court now st of all we can again look to the illinois supreme court in one thousand nine hundred and ninety six this is the carnage case which is a frequently cited case on under the illinois consumer fraud act that holds the court holds in tronic the proximate cause under the only consumer fraud act is generally a in two thousand and fourteen all this while appellant had known that deno coverage was available in two thousand and nine joes not to purchase that coverage all these to have gone out and get a quote for e p l i insurance in two thousand or in two thousand and nine and he then made a representation about the the additional coverage that was included there's nothing they alleged in in either the nd or the thirty minute complaint that expands that duty the so the duty it was negated the duty to procure was the gaited by the fact that they knew given they were selling the cliff revision to somebody either this group of seven or two boy did they asked for there are no allegations that they asked for dno coverage but they collision or a vision whitt to another insurance agency to look for directors and officers i'm sure insurance and then they said they couldn't get it  the important thing is they say they were relying on mr steinhardt if they were relying on mr respect why did they go to another agency to ask for coverage but they didn't ask for coverage mr  afternoon your honor may please the court my name is randy has represent the farmers defendants those are three insurance exchanges farmers insurance exchange truck insurance exchang exchange six companies that are owned by the exchanges and farmers group inc which is a separate company separately on iran and the decision below against from judge peterson dismissing all claims against the farmers defendants should be affirmed in all respects his decision was not abuse of discretion no part of that decision was arbitrary no part of that decision was on reasonable no part of that decision was one that a trial judge should or could not make as a threshold matter as mr dalton points out mr draws you know never quite quick clear the sale of collision revision was in his own words not on the horizon insurance producer is not a guarantor he's not obliged to predict the future what he is obliged to do is comply with twenty two a one the violation the alleged violation of twenty one is the predicate for the negligent and negligent misrepresentation claims against farms it's the predicate for were using in that room your honor could i ask you to say that again unfortunate or zoom something about some plaintiffs illinois illinois consumer fraud and deceptive trade practices a an independent contractor his duties are defined by an agreement which is in the record before the court farmers appointed him self farmers insurance represent the competence it made no appointment to to sell insurance for other companies it exercised no control over whether he did or didn't sell insurance for other companies it exercised no control over what he said about insurance available for other companies farmers does not i cannot stress this point enough does not underwrite insurance for body shops it does that underwrite directors and officers insurance for body shops the assertion is you should have recommended a product that farmers does not sell farmers accepted no application for such an insurance product it made no communications with anybody about such an insurance product it accepted no application it did no wonder writing it had no involvement whatsoever in a discussion about a product that doesn't sell with an independent contractor who's working on his own account and responding to an insurer who says you know i don't have any other insurance owns no parks i say does it with one hundred percent certainty and the courts should understand this with one hundred percent certainty sir it owns no part the farmers insurance exchanges the farmers insurance exchanges are california reciprocal corporations they're owned by their shareholders by policyholders by policy hold those are the people that own the farmers exchange zurich is a foreign stock company you can find it on the swiss exchange provides services but let's be clear what is and isn't part of that there is no agreement between that subsidiary and mr aris stay no mistress stay you know as an agent for a listed and defined group of companies the farmers exchanges and a few other companies the farmers exchanges on again that umbrella zoned entirely by their shareholders the very documents that mr gorenberg predecessor filed with this court you can look at them yourself and read of your honor it merely corporate diagrams are confusing as heck sometimes but this one is clear there is no ownership in the exchanges insert and zircon the exchanges so the set of defined obligations to farmers to sell the products that farms offers to sell the companies that farmers office business that is eligible i'm just reading from the contract that's before the court there is no policy that farmers office offers to dno or no do you know policy that farmers offers to body shops it's not a product farm or sells it's not a line of business that the farmers underwrites it's not a class of business it's not eligible to be written in those circumstances he was acting as an independent contractor and if he was working for anybody who was working for his or for m but he wasn't acting for farms it would turn the principles of vicarious liability into a guarantee to think that an agent for farmers who speaking about a product that farmers doesn't sell is farmers agent for all purposes that's not the law the threshold predicate for the imputation of principle agent liability is the agent is acting on behalf of the principal said differently for the principals benefit because we've covered the vicarious liability point in response to the court's questions the consumer fraud claims that mr durazo brings is an individual and on behalf of the supposed class against farmers defendants on the basis of supposed false advertising is what i want to cover now all of the things that mr gore bird refers to today and the legions of documents that are printed in the complaint which i think you went and they printed every ad farmer says run for the last few decades and put them in a string site and said each of these was a promise to me mr drowsy i encourage the court to look at those and to look at them in the context of the avery decision the cases that avery cites in the examples that avery relies on brand advertising statements that we try hard we w hold our insured's in good hands nationwide design your side like a good neighbor state farm is there all those statements of that ilk are all aspirational they are opinions they're not statements that can allegation was state farm didn't tell its insureds that the replacement parts that were going to be installed were categorically inferior that was the clay they should have said these parts aren't any good and the exact corollary here i saw my light may i finish this thought thank you for the exact corollary here the allegation is mr restate i wasn't adequately trained  that wasn't disclosed well that's the exact same allegation that the supreme court looked at in a very it looked at the other words that state farm used and it said this  actionable i asked the court to affirm judge peterson's rule in dismissing all of the farmers defendants thank you employment practices liability insurance and the only one of those that's referenced deserved so he clearly had the ability to sell at least for one other person and bluntly your honor the question here is no different than if mr staying on the set was talking with mr grazia above blue cross and blue heat shield health insurance would somebody think that he was an agent for farmers when he was doing there i submit not that's not the lawyer honor so there is one overarching point that i would like to make in response to both mr dalton and mr hatch and that is that so much of what they just talked about are questions of fact questions of fact which cannot be decided on a two thousand six hundred and fifteen motion which is what they both filed and more specifically as to mr dalton's argument on behalf of the state of mr stein there are three key points that i'd like to make one is mr that st of all the requests have been made at least in two thousand and nine to get coverage for economic loss claims by rd parties that's a dno that would have covered the ultimate sale in two thousand and fourteen the other way that it's a red herring is that asking for do you know coverage in two thousand and fourteen which is exactly what did happen through the other agent by that point it was too late because the nature of the unknown surance like so many other policies is that and going back further there had been this internal insider change of control in two thousand and twelve that mr ristaino didn't know about if we look about look back to paragraph one it was seven of the proposed rd amended complaint against getting dno insurance because he said it wouldn't provide the coverage that's exactly what's at issue here you know as to mr hacks arguments on behalf of farmers there are two key points that i'd like to allegations of apparent authority and i already outlined earlier today the various allegations made about statements made not only by mr steiner but of but by farmers itself described a variety of slogans ok slogans those are typical advertising but when i talked about earlier today was not just slogans again they were specific representations specifically about m and the nature and scope of services that heat as a farmers agent would and could provide to mr drowsy and collusion revision it is that type of misrepresentation if frankly the fact that farmers does not sell or do you know insurance only exacerbates the problem because they represented to mr draws you and his company that this agent mr stein no could provide for changing business needs business insurance advice and they actually couldn't do it unless it went to another company so for the various reasons we've outlined today and i can't again stress enough that there are so many fact  was not your order it meant neither one was urgent no night right so in two thousand and nine i would it would have been a package policy of both employment practices liability and directors and officers so mr advice was trying to be at cross purposes with itself because he recommended getting the employment practices liability but he recommended against getting the directors and officers but they were part of the same policy and again i would stress that the actual quote