this morning it's agenda number twelve place number one zero five nine one secure secure an insurance company versus illinois farmers insurance company an appeal in this case where it's going to work to look at two issues whether the notice of appeal was timely filed in this case and the second issue of court size that was was whether or not farmers that commission of insured person violates the only financial responsibility of law by limiting coverage for classification of risk for commercial businesses or employers i'd like to address the notice of  that motion was granted by the public court to secure a sort reconsideration of that order and sought to supplement the record with a letter dated june sixteenth two thousand  indicating that there was a notice to the circuit court of du page county with its notice of filing and notice of appeal the court withdrew the mandate and consider the response that from first filed in the case in chief and basically reversed the order and found that the notice of appeal was timely filed the court's decision was based on its interpretation of rule twelve b three and we believe that the court's interpretation of twelve b three is incorrect in this case under the rules owner supreme court rule three seventy three allows the notice of appeal to be filed by mail with the circuit court of the work of du page county if certain requirements are met and those requirements are se worth in a lawyer supreme court rule twenty three there's three requirements set forth in that rule a certification must be made by the attorney of record or any other person by affidavit that actually to the order to the circuit court in order for the notice of mailing to cats to file and that wasn't done in this case in addition  notice must contain a notice of mailing to the circuit court to page county must contain three requirements the time and place of mailing event notice to the clerk the compliance with regard to the complete address on the and the fact that it was posted for pre paid now in looking at compliance issues the second district polled or look at the notice of filing in this case which is four forty five in the record which is a notice of filing that was sent to counsel for farmers basically indicating that june sixteenth two thousand and six that the attorney for security filed the notice of appeal with the circuit court of du page county which was not the case was sent to the circuit court of page county therefore none of the requirements of twenty three were met with regard to the notice of filing sent to the circuit court of two page county we find  we would ask the court to reach the exception issue because it's an important issue that affects a number of cases are currently pending before the courts in the in the circuit courts right now waiting that more decision and then issue answer your question no if you decide the notice appeal was untimely just as in the broth decision before this court they've never reached the issue of whether or not the exclusion that case was valid because there there there would a letter that is dated june sixteenth two thousand and six there is no certification within that letter that indicates that it was actually mailed on their fate who mailed the letter because the rule of three is pretty clear that it has to be certified or tested to that it either the attorney himself mailed the notice or some other person by affidavit has to attest that they actually place the notice in mailbox and sent it to  and it is that attestation of mally the certification by the attorney under oath or other person by f a david that attest that it was in fact done now twenty three under rule three seventy three gives a relaxed standard that allows an attorney the convenience of mailing in his notice of appeal rather than physically appearing at the courthouse and filing a notice and in order to have valid oneself to that  te standard but at the same time to give credibility to a process uncertainty and the date of notice similar to a file stamp copy the court's under the illinois supreme court rules or requir doctrine of harmless error applies to some of the supreme court rules to some of the rules but not to the timely notice of pill because i believe in that circumstance this court has said that will for city only be changed by this court what about that we do know the pill was filed on the twentieth yes june the twentieth that's certainly consistent with mailing on the sixteenth is not what you should comply strictly with their world mr worker is there no notice of appeal there is a notice of appeal in the file there is a notice of appeal no certificate of service or proof of service with that separate document that is correct ok now you go back to two representations on that sheet when you go to the certificate of service signed by the attorney in the next page he uses the phrase again this is certificate of service that i certify a copy of the above stated documents  so does that and does a reasonable reading of that not refer to the filing of two documents by mail now i what it certifies that if you read the certification of service and this is exactly or point right certification that he in fact mailed he's tacking means to the circuit court of page count i got you so you're saying that this just does cover the certificate of service for the mailing of those documents service of the documents to the other side doesn't cover that it was actually put in the mail to be filed with the circular correct thank whole court i'd like to address the coverage issue involved in this case farmers under is a personal automobile policy seeks to exclude a classification of risk for employers under its personal financial responsibility law we believe that the provision is consistent with this court's holding in progressive which recognizes the ability of insurance companies to limit or exclude classifications of risk even for people protected or persons protected under that act last time i was arguing before this court under the bill my financial responsibilit farmers the issue in that case is whether or not we had to provide identical coverage to the named insured to the promise of drivers and in that case the firm argued that we had to provide identical coverage  case farmers is trying to exclude the commercial risk of employers under their policy what they do is they accept the risk coverage for their own named reason is that farmers policy improperly discriminates between the named insured and the permissive driver that's not the case under the facts and circumstances of this case in progress of this court stated that these exclusions and these clauses should be looked at under the facts and circumstances of each case under the facts and circumstances of this case the permissive driver's employer was not covered the exception to our definition of insured person did not apply because the named insured was not the employer here if he named insureds employer was he in a automotive as it was for the purpose of driver that employer would still have no coverage and therefore the named insured and the permits are driver under the facts of this case would be treated exactly the same for  operation of the provision in this case would never under any factual scenario created disparity between the named insured and the permissive driver wherever the named insured has harbored under the policy the purpose of driver also has coverage and that's the corpus of the financial responsibility act and that's the coverage that we provide in our policy what do i mean by that if the named insured in this case was the employer the named insured would be covered and so would any permissive driver using his vehicle but by virtue of the status of employment of the named insured they would also have coverage and  it would be ridiculous to exclude the named insured if he was acting in his employment capacity because if we take out the exception to the definition of insured the result that we would get in this case and something ignored by this  public court that we are going to breeze is that the named insured band would be excluded from coverage by virtue of his that points that is by his own policy that he paid a premium for and that her missive driver would have coverage by virtue of being a permissive user of the vehicle because the permissive driver would be the employer and would be entitled to coverage under policy and that would be an absurd result under our policy and that's the purpose of the exception to the exclusion in our policy so the issue before the court is whether or not that limitation was the classification of words that were not willing to take under a personal auto policy is appropriate under the statute there is nothing in the statute that prohibits insurance companies from livny this type of risk it's no different from the pizza delivery exclusion that was upheld in progressive and looked at and approved that by this for the issue is whether or not you or recognize coverage for that individual permissive driver and provided coverage because he while fighting as an insured person under the policy what secure wants us to do is step in and take the vicarious liability of an employer have been covered in that circumstance that the individual would have coverage for his use of the vehicle the employee urged the company would not in that capacity that is present and it's no different from the pizza delivery exclusion were the entire premise or driver and the named insured were excluded from coverage the issue is whether or not you treat under the facts of circumstance of is of each particular case the named insured the same as a permissive driver for coverage and our policy under each of those special scenarios you do and the way that the court found the disparity of treatment is by looking ineffectual vacuum and created a hypothetical that can not exist they look at the situation where we provide coverage for the named insured as an employer but don't provide coverage for the permissive driver as an employer and there's no requirement under the statute that we offer that coverage for a stranger to our contract what is important is where we do provide coverage to are named insured that we also write coverage for the purpose of driver and we do that in our policy and we've done it in this case and we recognize coverage in this case we exclude from our policy is the commercial risk associated with a third party that is seeking coverage under or under our auto policy a personal auto policy that was not intended to cover these types of commercial risk or commercial exposure more your honour's may please the court and the worker my name is john mullard second i'm representing secure insurance company in this case secure is asking this court to affirm the findings of the appellate court second district and i was there ever a certification filed in that ever filed in this case relative to the notice i don't believe one was filed as it's defined as a sort of cation of filing the notice of appeal i believe i may have signed an affidavit in relation included a date on the face of the letter which did not include any statement in the letter was mailed on that day it did not contain a certification that it was mailed on that day it didn't even can contain a certification it was mailed at twelve b three provide the exclusive method for proving the data filing by mail i don't believe it does i believe the case law that has developed in this area while b while it's very minimal has looked beyond the simple twelve b three requirements ok if we disagree with that proposition would you agree that twelve b three provides a jurisdictional requirement to the appellant would you do it would you any document that's mailed by do do we need to accept the fact that it isn't a jurisdictional requirement to agree with the appellate court that there can be that this can be harmless and i think as they called it well  prejudiced right i don't harmless and no prejudiced argument i mean is the only way that that holds water is if this court agrees that this was not a jurisdictional requirement no i don't think so i think it because twelve b three applies to the filing of any document whether it be jurisdictional or not this court can doesn't need to find that it's jurisdictional in order to find harmless error unprejudiced to apply i think my question is really the opposite if we find there is a jurisdictional requirement collector case which is the second district case cited by farmers in their original motion to dismiss in that case it was a twelve b three case on notice of appeal very same issue and the next case they did not consider whether it was  jurisdictional what they considered was whether there was substantial compliance with twelve b three based on the documents that were filed and while they didn't use a think the term harmless error they look for substantial compliance which is exactly exactly the same as what i filed in this case that document was filed a file stamped i should say three days after it was supposed to be filed and the court found that that notice way back when three four months ago i am certifying now that i did file it and the court found that that was subject subsite substantial compliance with the mailing rule and in this case my notice filing against well what we're talking about here is the mailbox exactly which is what they were talking about nec ace now there is there is no period of grace for a person who chooses to file in the courts office in person as though there's not he walked in the next day i guess it would have been the seventeenth you were just young along correct but we are suggesting if you using the mailbox rule which i think counsel said loosens it  you can here have substantial compliance and you'll be ok that's correct yes that's your business that is my position and effect are you in any way indicating that you can see that there was at least  will talk about that for a moment if we can do it when the appellate court said harmless error they observed that what was missing from the letter was the timing the time that the letter was mailed and i take it from that the time of day correct but we have an addition to the time of day as you mentioned earlier was the date that it was mailed right ok it has to have a copy of the the front of the envelope i don't think that's required  correct right and where they mailed correct none of those things are or anywhere on the the letter that is apparently the saving documentary you proposed isn't saving them much of the information is on the letter what's not there is the certification of those now let's take a look at the letter what you maintain is on the letter and that give me i just the date the date is listed on the top of the on the letters june sixteenth two thousand and six correct doesn't say anything about that they being the date of mailing it does not specifically  are mailing i'm presume i don't need to push it too hard on that i understand to make it difficult for you real or not but it just says to june sixteenth two thousand and six and that date clearly could have been put on there at any point sure and it doesn't indicate anything about mailing no it doesn't indicate anything about where where it was mailed to or where it was mailed from correct or who it was mailed by correct yeah my only point was  and i'm not trying to you call this letter the saving document i don't pretend to identify it as a saving document what i am but without without the letter we have nothing at all but without the letter we still have a notice of filing s in which it's indicated that i filed a notice of appeal with du page county clerk on june sixteenth two thousand and six with a certification that i served those documents on security council on june sixteenth two thousand so it is based on said over and over again i'm sure you're tired of hearing it but that that was a that was a certification it was mailed to counsel not to the circuit right and what i'm trying to do is take all of the evidence put it together and make it presentable to you that it was a of all the factors looking at them together that is substantially substantial compliance with the rule that's my point i'm not going i am dell supreme court supervisory order as indicating that it interpreted as doubts resolved ounce regarding filing mailing should be resolved in favor of review before an appellate court so that the merits of cases can be decided and that is consistent with the curtis case and our case an appellate court in which they look for things like harmless error prejudice because they want to resolve all doubts in favor of a review before an appellate court of substantial issues substantive issues which is our position here today let me just follow up with on that just as freeman's earlier question on the other side is there any way we could if we disagree w jurisdictional issues the instant case really deals or whether the notice of appeal was timely filed or not right correct which what we've been talking about today is that it jurisdiction at least two of those dealt with post trial motions that have been filed again thirty days was the deadline it wasn't a jurisdictional issue per se it was still the thirty day requirement and timely notice musicales he insured under the farmers policy now the farmers policy says under the definition of insured any person organization other than you are a family member who is the employer of any insured person that is not insured under their policy where you cannot hide inequities in coverage in a definition this court has stated in smith and progressive that inequities in coverage are disallowed as a matter of public policy farmers has hidden inequity in their definition it's not an exclusion like in smith the business use exclusion or the food service exclusion like it was in progressive this isn't a definition and what they're doing is they're excluding not does not because there is absolutely no cost to farmers to defend an employer on a response to a liability theory for the acts of his employee they are in the position employee and employer it costs them nothing and countless times employers are sued and not the employee for one reason or another one being a plant's attorney may like that there's a corporate defend and not a personal individual defendant it's a mind game with a jury so to speak in that case if we take farmer's position that an employer of an employee or an insured person is not cover because he's not the named insured where is covered for that the fan and it frustrates the public policy as stated by this court that there should be coverage available secure payment for damage is the policy and if you have a situation where an employer is sued for the acts of his asian employee under the farmers policy employer is not covered so there is no insurance and farmer suggestion it's brief that it's important to point out that in this particular case security insured the employer and had coverage so there is no concern about public policy but that is nothing more than a fortuitous circumstance of this case in every other case in this case included you cannot just assume that an employer is going to have commercial liability auto coverage because that's not mandatory in the state sure there's a maybe you want to create an incentive but this court stated in state farm versus smith that that incentive is not the public policy of the state but public policy of securing payment for damages state farm argued that the delaware supreme court and their public policy should be the public policy of the state the supreme court said no so in that case in this case that's irrelevant so there is no increased risk to farmers and farmers talked about taking on vishal commercial exposure here they take on a commercial exposure just by ensuring permissive users because mr dillon this case was involved in a commercial business it was key repair shop that's a commercial risk they insure mr dillon or their policy that's a commercial rest they have to bear because the supreme court says permissive users must be cover leave everybody or sure sure why not and the problem in this part and this policy in this provision isn't even that they would defend or cover employers it's that inequity that i talked about of the beginning because what they've done is they've allowed coverage for named insurance who are employers but not permissive users who are employers and vats that the crux of this appeal if they didn't have that inequity if they barred coverage for all employers we wouldn't be here today because they're treating named insurance and permissive users equally the problem be comes when they exception play on its face all there is then you are a family member they've created that exception so in a case where the name insured has his own car and he's got his own business and in that business he lends his car to an employee for company business and he gets in an accident and the plaintiff sues the employee who is driving the car and the named insured employer in his capacity as employer under the farmer's policy the name insured is covered as an employer because he's exempted from this exclusion that's the inequity and that's why in our position here this inequity has now eliminated coverage for the permissive user mr was a costly and that's the very fact would be that progressive and smith found to be against public policy we talk about sleep time is up but i'm going to invite you to take another two minutes to wrap up if you'd like thank you i just want to talk real quickly about the practicality issues with this and i have mentioned it already about the fact that farmers the situation i just described the great inequity that occurs with covering manage shirt and not permissive users and the point about what i explained to just as common is that there is no added risk commercial or otherwise there is no perverse result that's going to occur from this because all farmers had to do was exclude coverage exclude the exemption to both named insured and users who are employers and we'd be done but they didn't do that and that's where the the issue really lies and my last point is we didn't talk about the statute itself at all and it's our position securitization that under the statute you have to insure both the user and the person responsible for use the language of the say she does not say either one or the other it says any other person if you stop it there as i explain in my brief you it's everybody else in the world but there's qualifications of using a responsible for the use those are nothing more than qualifications to describe any other person it's our position of the statute itself requires both a user and the person responsible for the use to be covered in addition to the name insured thank you again for your time justices and circumstances of this case that exception does not apply to the inclusion of that exception does that create any disparity under the factual scenario of any case if the named insured is the employer the premise or driver of the vehicle promise or driver using the vehicle with his consent even if he's an employee of the named insured has coverage i thought his argument was that if if if the permis if the user is employer in other words if the if the permissive user had been mr mute user koski correct he would be treated differently because he's an employer and not covered by definition only in our scenario the permissive user using the vehicle with permission and consent by statute and by definition in our policy is covered and there would be no disparity because the named insured in that scenario and the promise of a driver would have that you know might have or whatever those entities whose corporate entities do not have coverage when they're sued in their corporate capacity under our personal automobile policy and that's what secure is asking for in this case how we believe that it modifies the person using the vehicle person or responsible for you that the statute requires coverage for the named insured or a singular person using or responsible for use of the vehicle which is what we provide coverage for the use of the vehicle as this court has recognized the purpose of that statute and progressive is to provide coverage for the named insured and anyone using the vehicle case after injury curse is by the use or driving of the automobile it's not from the vicarious liability on the principal agent theory responded it's period or or that commercial risk that's insured under a separate commercial policy that  an auto business where they have autos thurst mandated coverage for commercial autos in the state just like there's mandated coverage for personal items so i disagree with counsel statement that a business that it involves commercial auto risk doesn't that is not required to have that coverage mr worker what if my neighbor's a mechanic that he chooses i ask him to work on my car right insured by farmers and he takes your car out for a drive he is covered under a policy by definition absolutely and he's treated exactly the where named insured is what farmers was trying to avoid in their policy is where the named insured himself is the employer and he let somebody else use his vehicle he would be the corporation itself it was sued in a corporate capacity would not have coverage for that correct and that's a classification of business for us that we're trying to exclude and in that case in justices example both the named insured would not have coverage for that corporate entity nor would the permissive drivers were treated in both the same likewise if the named insured was the employer both the named insured and mr driver are treated exactly the same so you have to look in the well are you screwed in the risk or are you just excluding this is an area where there's others sure it's no worse we're excluding the classification business risk for this type of employment liability that we're not willing to accept under personal auto  obligations and that creates problems and that's a king's it doesn't expand coverage in the case so you have multiple insureds covered under a single policy with a single right now with regard to the defense of a case that may make it more difficult to sort of a case and be after the named insured who sued for in a trust an issue maybe with regard to the permissive driver who is actually negligent for the accident and now you have this extraneous third party who's being sued for a curious liability responding it's period or they may feel that they don't have my bill for negligent training or supervision or those issues which are extraneous from the use of that vehicle and the intent of that statute for that motor vehicle additional considerations that would add burden into finding those kinds of cases by any third party strangers to our contract that were not intended to be covered by a personal policy with regard to the it based on this court supervised very powerless and rule making authority to take discretion and consider substantial compliance with its own rules it doesn't bestow that authority on the  circuit or to do ph counting out a minute before the court closes and they refuse to take that notice it's the third the relax standard that i was referring to is allowing me a system where you can certify that you in fact completed the task of mailing a notice which has to certify only by certify they did and there's three requirements are simple and the contain within the notice of filing the secure  house in this case machine worker i think you said a minute ago that this including the employer in this case would not provide any additional coverage it would but it would provide an additional burden  taking this case though and the person who sued would not benefit in any way by having be in a covered by insurance in this case is it your right i need no matter how many people are insured under our policy if question concerning the additional cost i mean it is an additional cost an additional consideration an additional burden which may actually have had a negative effect if this court finds that we're obligated to provide five nine nine one