all and the reason is the ruling was on a summary judgment motion which is clearly no and that summary judgment decision was based on the legal ruling that was made on motion and when a number two and i think that the defense concedes that off we demonstrated as a matter of while that the defendants allowed the deadline under the nonparty act to pass while the defendants represented us appalling therefore it was error for the  it was error for the court below to find that the statute the patients had not so summary judgment should be reversed the motion limited in number two should also be reversed we also demonstrated that as a matter of law that legal negligence case is a tort and like all other court cases the collateral source rule should apply to such cases therefore the summary judgment that was granted in favor of the defendants and against my client on that issue  likewise be reversed like all legal malpractise cases there's two layers to this case the legal negligence case and the case within the case here the case within the case is a motor vehicle accident that happened in indiana  no firm was engaged to represent us apollo and indian but in the event that a lawsuit fall off they were engaged within weeks of that accident to be proactive and it takes steps to avoid it it and suit was eventually filed and he didn't raise that defense during that suit at any time during that suit instead he pursued a for the nine convenience motion that went on for buddy year and a half that an answer could have been filed but he chose not to he could have filed an answer and preserve the statute of limitations and shows not so it's a distinction without a difference really that's what you're right it's true a lot of the cases that you talk about are sentences in that statute that pertain to the deadline to file the nonparty defense and the first is that the fed should be raised as part of the first answer and so very well the first thing that awareness to do is protect their client and they need to protect statutes of limitations and they and so in pursuing the four nine convenience motion he went pursued a course of action that allowed distraction limitations to pass in the meantime so that's not reasonable and what's more reasonable is that there's a protection in illinois supreme court rule one  seventh that allows the filing of any answer and allows the preservation of any defen indiana law apply to apply so his thinking was i need to move the case cross the state border in order for india very one of the reasons for this must be well you need in his papers he went over there so indiana law would apply and i would suggest that indiana more would apply whether it's here or there and therefore the more reasonable conduct is to preserve the defense first because your form of motion may or may not be granted in first and foremost you've got to preserve your defense in this case in particular because the defense was to allocate liability to it applied it did in a specific circumstance where they were the plaintiffs settle with the named defendants after the statute of limitations the plaintiff set up with  after the passing of the statute of limitations and the court therefore in that instance allowed the issuing of the nonparty defense and the reason that makes sense is otherwise it would inevitably lead to manipulate manipulation by plaintiffs who could first settle with judgment proof tortfeasor years were primarily or completely responsible for her tort and then proceed against a remaining deep pocket alternately a name defendant who was so and this is the only exception and that in the temple in case it was not over rule the temple in case was a case where the nonparty defense while you can you i mean that's it's an interesting fact that the plaintiff may be aware of other not parties it's not germane to the analysis because otherwise you're shifting the burden of proof to the plain that's wh the temp in court said that's what the owners court said in and in this same and similar ignorance of what the plaintiff what's important is what the defendant and i guess but what's also important here from a policy standpoint is if station limitations and then ask for a choice of war or one ask for a not very defense to be to be made they would be able to allocate ninety percent of the fall to party like anthony reason the us clerk came around to it is condition number two which is not met here in our house and just giving the claimant a reasonable opportunity to add the nonparty as an it in additional defendant for the right i guess where i come down is it's of the cases that say collateral source doesn't apply and in a legal malpractise case with all respect to the courts that have ruled on it i think are drawing distinctions t and sell used to be the policy that failure should be over compensate other will say no it's not a question of whether the plaintiff should be overcompensated it's now a question of you don't want  in exchange for the benefit so that was kind of the question being being it considered there in it but it allowed the court to shift its focus look at the restate in one thousand eight and say you know it should be it not whether or not the plaintiff is overpowered sated it's whether or not there's a windfall to the defining and also say that you know you'd have a line of legal malpractise cases that say what they say about that you can't read or read or there's a whole bunch of court cases that say there's no double recovery or you can't recover more than in your damages and yet no spaces in those types of cases they love the source so it's really a distinction without  sentences you'll see that sentence number three does have a hard and fast rule there are conditions that allow the court some discretion that two to expand those deadlines but  sell with them and then take them out of them next and if you set up the defendant's argument in this case it will invite manipulation and it will invite defendants to to sit back allow the statutes t pass in and then the plaintiffs in this case it would have been lisa keppen she would have been under compensated by at least ninety percent if the role is to stand and and it's it's not in accordance with the policy of indiana law which is to form fairly compensated plaintiffs and to fairly allocate all of and as mentioned on the collateral source rule the cases are going to stations without the reading of that of the restatement i believe that you'll find that there is no good reason to treat a legal malpractise case any differently from any other court case when it comes to the section we do agree that this is the to noble standards of review applies to interpretation of the statute we disagree that the normal standard of review would apply to the trial courts  exercise of its discretion once the court decided that there was discretion under the statute so it's actually an aspect of this case that the that the plaintiff has not addressed in any fashion whatsoever and th is once the trial court in applying the language of the statute and following the old ones decision recognized that there was flexibility under that decision and recognize  that there was discretion to be applied with then that would have to be consistent with subparts consistent with some parts one in two of the statute then that was discretionary and certainly this court should review th aspect of what happened in the trial court for the trial of judges whether the trial judge abused his discretion and of course that's a very deferential standard is this court of course is aware based on the fact that it was a motion the court to determine both choice of law and then to interpret our once the court made the choice the choice of indiana law and then to interpret the india the statute then once the court made the determination that the indiana statute contain flexibility over the case was and the the statute of limitations then the court applies his discretion the judge applied his discretion to say ok let me look at the circumstances here what were the circumstances here and inaccurate for the plaintiff to characterize my client's conduct as doing nothing to further the potential for the application of indiana law and the underlying case the court is correct in recognizing that the issue was you know what from a strategic position as is the attorney where is my client going to be best protected where is my client likely in this with this this very serious injury to be able to convince circumstances exercise discretion to do so so this this clearly that the record clearly bears that out and there's there's no there hasn't been any suggestion that there was delay by my client in terms of pursuing the form one convenience motion and pursuing the appeal the courage and the wisdom of their choice also i think is underscored by the fact that this court acknowledged the trial courts how meant in denying that motion and that it was a close call it was a close call and unfortunately that discretionary call did not go in favor of power and that that point in time but it seems to me clear that the trial judge in this case  correctly read the the statute that's where the choking began his and he also says as the parties and the court spent quite a bit of time trying to interpret the statute and presenting their arguments and coming to this court may alter these time limitations so that the idea being that here here are the programmers we'd like to see but would put it reserves in the trial court the discretion so long as it's said then what is the purpose of the last three sentences of the statute and that doesn't that that can't be a correct reading of the statute as far as the owens case is concerned i think it quite thrilled clearly demonstrates th discretion there's no language in that case whatsoever saying that the exercise of discretion in the flexibility of the deadline was limited to they have a specific situation the fault they act by recognizing that the purpose was to give the plaintiff notice a potential defendant thoroughly we have that situation here particularly and i'm not sure that this i don't believe this came up  insurer of the automobile that hired was driving so it's certainly our you know the the discussion and the argument about the potential for manipulation in the unfairness and so on and so forth that you know that's rod's those are all well and good to consider in the big picture but that certainly has no way of acacia in this case what about the component of all and it says own corner it says that whether or not they were named defendant as an exercise its discretion in fact and i'm not necessarily the biggest reader of footnotes but i read the footnotes to the islands decision and in footnote thirteen the court specifically record that it's the flexibility of the deadline even in the one fifty forty five situation so i don't believe that it's your it or an accurate rendition of that case to say that it's limited to those specific fair and i don't think there's anything about the statute  judgment there is no need for the defending dance here to file across notice of appeal because the notice of appeal appeals from the judgment at the reasoning of the court so we're certainly within our rights to assert alternative basis for this court to affirm the judgment and there's those two basis are the the question of the payment by a different entity of the two million dollars and also the case with the case but to back up and go to declare all source rule issue i think the case cite is quite clear and worth one aspect of this that i think is important and wasn't commented on is that most wells there were several cases in which one in this court that i know of a learning curve case and the same peer case out of the second district in which the vitality of the ruling and in strongly was of was recognized that the collateral source rule does not apply in legal malpractise cases so those cases were come to them by counsel but i think that they certainly it seems unreasonable that legal malpractise cases are considered any different than any other work i don't think that's correct your honor i'll tell you why first of all well the beginning of the analysis he has to be the definition of the damage a legal malpractise case and that was recognized by this court in the sterling radio case and the definition is and this has been stated by the illinois supreme court in this court on many occasions it's whether there intangible property interest we're not talking about a personal injury situation as an outsider which involved a premises liability and a personal injury or hurt in the wills case which involves an automobile accident we're talking about a property interest is defined differently and the quote that this court in the supreme court has been quite clear that damages in a legal malpractise case are require proof strict proof of actual damages nothing is presumed the other aspect of this i think is worth noting is counsel emphasizes one section one hundred twenty of the restatement of torts and there's a very interesting discussion of arthur wills in section one hundred twenty in the determination about the reasonable value recovery for medical bills and that's what the issue was an arthur in and wells but that he has a punitive component and that's specifically what the  about that kind of a punitive component in the context of legal malpractise damages that's absolutely antithetical to the way that the supreme court has defined damages in legal malpractise cases so i don't believe there's any basis for this court again there were no damages sustained the day and well i should say the howls damages they actually are zero and sterling radio supports the notion that the trial court should have granted the motion for summary judgment in this case and the  self insured retention was paid by a separate entity same situation isn't sterling radio by r c w worldwide homo's parent and interesting lea how and makes no effort whatsoever in this brief to respond to the substance of their argument there's not one record cite there's not one cite to any case law it simply concludes without citing to the record or anything else that it's a question of fact so i'm still pending a trial now and issue no this is just not true to the basics so in other words if the court didn't agree with us on the stanch tory issue then the then that would eliminate the remaining question about any damages the record is very  respond to that argument at all in the reply other then just cite the mccarthy case which stands for the in the opposite proposition that the fact of a settlement doesn't buy a legal m any of witnesses in addition to the witnesses who had already been disclosed under supreme for will to thirteen howard did not disclose any witnesses other than the attorneys and some insurance personnel folks who never could come forward and prove the case was in the case not of the parties thing in knowing the action no medical personnel know it so that was that was a basis of discussion and that's why we raised it as an alternative basis for f of use its discretion in allowing an amendment after the statute of limitations and so that's part of the body of case law that's out there in indiana is that one particular situation with one particular party that the supreme court of indiana carved out from all the other articles in that case even the nine name defendants said this is how we're going to treat them and we're going to allow the filing because it's first order of business which is to protect us and protect his line by preserving the most important defense that existed which is to allocate all the non party he recognized on the second week that handle the case think that that's right that's one of the things i want to correct because that is not the record in this case she did not settle with pardon at least that's not in the record in this case there is a letter that just that that  said that the trial court should not have considered plaintiff's knowledge because again that shifts the burden of raising the nonparty defense to the point where it doesn't  statute passed on june nineteenth two thousand and four which area was still representing this line so i appreciate your time justice is appreciate your consideration and