reversal of the district court's judgment dismissing lend lease as complaint for in the alternative seeking reversal of the denial of law in leases will fifty nine motion which would allowed an opportunity to replete its complaint following dismissal l was the construction manager on a project and provided a contractor controlled insurance program or c set to its unrolled subcontractors which included workers compensation insurance now forgive me based on what you know was mid west party to the technology insurance policy that s obtained and did that policy cover midwest's workers on this project that is lynn lisa's allegation your honor the power of the policies are not a part of the record and have not been presented to this court  however that is the upon information and belief that is what lend lease alleges and now why wouldn't they have been presented to us well your honor we didn't have a copy of that policy when we filed the or in any agreements between lend lease and the various sub contractors that would have required midwest to disclose that it had independent insurance coverage in addition to whatever coverage was provided by the c c ip yes the the c seven surance manual that was incorporated into all the sub contracts required relationship between a yes and midwest steel was not informed at least was not informed of that and thus couldn't make provision for the fact that there were temporary or at least workers working for met west  five hundred thousand dollars  it's not a matter of whether or not we had more insurance here on earth they can that's the way the program is set up it's the fact that there's different risk associated with least employees and because they were not aware of that at the outset difference here your honor is that in this case we're alleging that legalese is actually acting as the insurer because it has that five hundred thousand dollars deductible and there's the case law that said i want one that took that forgive me but that is absolutely my question lend lease was required to pay the five hundred thousand deductible but why does that render it a cow insurer for purposes of a contribution claim sure the  retains its own separate legal interest in the amount of it's to dr bill even where the insurer pays the remainder and there's a case the sovereign chemical case where the insured only paid a twenty five thousand dollars deductible but was still able to bring a claim for close to five hundred thousand with c v starr mustn't you allege that they were insuring the same hardy and the same risk yes as technology in order for there to be a valid claim for contribution yes that is absolutely part of the requirements for pleading that you have to allege concurrent coverage we feel that we have alleged that at least when you read everything in total with each other but that being said if we haven't alleged that we think that that easily corrected if we're allowed to replete that it's just a matter of the technical wording of the complaint and that's something we can easily fix what is it you want her suggestion was that we might not have clearly alleged concurr coverage and i'm saying that we could slow down but i concurred meaning that the two policies ensured the same parties for the same time period for the same risks and i think that we have alleged that because we've alleged that lease sponsored the contractor controlled insurance program and was responsible for the first five hundred thousand dollars of any claim which we are saying gives us the right to bring the contribution of those who don't understand you're responsible for the first five hundred where alleging that we have that right because otherwise we would be entirely beholden to our insurer star to bring a claim for contribution when it has no incentive to do so for lawsuits that are within the didn't you could have provided by contract that you would be  reimbursed by your sub contractors promotions for your current you didn't do that i don't think that was necessary because we're not seeking reimbursement from our subcontractor we're seeking contribution from the insurance compan have a five hundred thousand dollars deductible that means you were responsible for the five hundred not anybody else i understand that i think the distinction distinctive point is that star could bring that contribution claim against tiste i see because insurers have rights to bring contribution actions my point is that because we have such a large obligation we stand we act as star for purposes of this claim because a star has no incentive to bring a claim when it is for purposes of a contribution claim through payment of a just to poll where is that authority there as far as i can tell there is no authority either way opposing counsel can't cite any cases that deprive us of that right but recognised cause of action or least a region we brought in the court no your honor it was originally brought in the south southern district of new york but was transferred to northern district of illinois  so we've talked about the contribution claim i just want to wrap up quickly so that i can finish my thought here but our our main position is that the motion to dismiss was improperly decided and that we should have an opportunity to pursue our claims on the merits that they were properly play that being said and if the court agrees that the motion to dismiss is properly granted we don't think this is a special circumstance that warrants dismissal with prejudice we think we should have an opportunity to repeat our complain to bring in starr if that is indeed the case that there are necessary party think you loved me you had three opportunities to plead viable claims here why are the circumstances so compelling as to show the judge jury and be used his discretion in not allowing you to file a fourth complaint well i will say the original complaint that we filed just was just a misnamed defendant so i don't feel that that one should necessarily count against us this is the first time that should count as a thank you notes against chief of course you know what sort of three strikes and you're how i think you know originally we had to do an investigation into who the proper defendant was we didn't have the right information and that is why was sued the wrong defendant however they're related to the defendants the point that i'd like to make is just that substantively no one no court has looked at our complaint yet so i think good morning your honour's and me please the court my name is kevin libby shay and i am counsel for anything in technology insurance company i'd like to address a couple of the points that were raised already fi the core the first is that we actually during policy sure a t s is actually what's known as a p p o which is a professional employer organization as a p e o but what a t s does is it's basically a human resource back office for all of its clients in some instances it provides work comp and other instances it simply does payroll in this case with midwest there is a dispute about which contract is a political one i can tell you about this single instance is that technology or a t s was not actually providing work comp for midwest in this instance especially with respect to these workers and that's why midwest was not on the policy because at the end of the day the relationship that was going on between midwest and eight yes where eight yes was providing these back office human resource services it didn't include work comp and it certainly didn't include it for the specific employees what was in place for these employees was the star policy midwest signed on to the c c ip it got a policy from star the claim came in star responded to the policy i mean what we have here essentially is a multinational large construction management company that worst that's worth it in the hundreds of millions of dollars they do work all over the united states originally based in australia they knew going into this that they wanted a five hundred thousand dollars deductible per claim they signed onto a written agreement for that because presumably that lowered their premium and now what they're trying to do is they're trying to essentially get out of paying the deductible because they see that there was this separate arrangement workers compensation coverage to midwest steals workers on this particular project it did not oh ok it did not so as to whether it would do i did would you would midwest still need or or or or or want additional compensation coverage if it was already covered through the c c ip op based on my experience of working in work comp once you have one work comp policy in place that's generally sufficient under the law because the policy has to conform to the way the law work so they had to cause coverage through the store policy to cover this claim this accident in the workers who were injured there's no allegation that the star policy isn't completely paying for the claim or covering the claim in fact it is i think one fact that the courts be aware of is just a couple of weeks ago star went ahead and filed its own action against technology meet yes that's pending in state court right now so  say is if you just simply look at the pleading itself the second amendment complaint you can see they have pled themselves out of that insured versus insurer contribution claim first off they're not insure their construction management company second when you look at the risk that is being insured the  issue work come policies to subcontractors so they can control what happened that's a scar that star correct and that was that was that was prearranged with lend lease i mean that was basically the benefit of the bargain when when these went in here they  they and how do we keep our premiums down how do we you know they understand the risks that come in and how much work comp is going to be paid out so this was you know something that they put together in advance and i'm sure they do and in all other there are construction projects here now you know the is different from self insuring for purposes of being a cohen sure on a contribution claim another words isn't lend lease essentially saying we rather than creates a relationship between an insurance company and insurance and in some instances that's considered some type of you do share relationship under a lot of states laws including illinois that gives kind of an equitable right when a carrier has paid what they feel is more than they should have for a claim here what we have is an entirely different animal what we have is a construction management company that agreed under a contract to pay a five hundred thousand dollars deductible basis because it may need good business sense for event they don't have any relationship whatsoever with the sub contractor or with the workers that would be considered fiduciary any sense so we have a business entity that making business decisions because that's good for their bottom line versus star which is an insurance company which is essentially entering into a quasi or whatever fiduciary relationship to provide a specific coverage that conforms with illinois law i mean it in my view of things these are very different animals they agreed to pay that first five hundred thousand dollars simply because it made good business sense star is essentially agreeing to provide the benefits that are required under illinois law and so the relationship is different the duties are different here at the end of the day so we see these as very different you know cunt creatures i guess have you ever seen a case quite like this i have known were experienced i have not tried i've never seen a case like this to be frank and how many years have you been doing this for about ten years ten years i do a lot of work in illinois but i also occurrences and they were trying to get out of pain one hundred ninety five deductibles the only supreme court said hey you are sophisticated is insanity you entered into this arrangement you got it you know stick with what you wanted it this is the benefit of the park and it went bad for you but that's life that's what you agreed to i'm not sure how this is any different ok thank you thank you benefit of plaintiff's expense that would support an unjust enrichment claim which was the only claim plead the order denying the fifty nine emotion was likewise correct after the third complaint is dismissed a plaintiff should  allowed after judgment is entered a fourth complaint that at the plate of adds a defendant completely changes all the claims and adds to the claims when all the potential claims and all the potential parties were known before the first complaint was even filed the un just in richmond claiming the second amended complaint which played to put a band if its rules if you know any motion or to be permitted and it sends forth complaint to go forward claims that a s required to provide workers compensation coverage even if midwest was preaches a painting in an insurance program ip picked up the comp obligation over and above the doctor bill everyone paid what they were supposed to pay and the workers were covered when the the midwest got exactly says a third party is not unjustly underage when it receives a benefit from from a contract between two other parties where the party benefitted has not requested the benefit or misled the other parties the mere fact that a third person benefits from a contract between two other persons does not make such third person live with quite as i contract unjust enrichment or restitution they might as well have been writing for this case straw for what more do you think you plunge or position has always been that in the first instance it doesn't matter because you reach the same result under either and that michigan law is the more likely law to apply because a t s and midwest made their contract in michigan they're based in michigan their expectations were formed the the opinion below that says says that it's not enough to allege that a s and quote from about age twelve somehow benefited in attention to a matter that that's not enough the opinion is emotion raises no lee discovered evidence that could have been found before it alleges no manifest error of law by the district court it admits that the district court opinion was correct and it proposes to plead around it you know in effect you want more insurance in your pay for what premiums are going to pay for this additional insurance in effect we would like rather you going to pay it you want another five hundred thousand dollars sure we want you're my question you're not going to pay for it we're going to pay you that's not entitled to it either i don't i don't know you don't get insurance for nothing of course not but carriers bring contribution claims against each other all the time and they don't pay  for that benefit because of the contracts in the situation that you're just asking for insurance you didn't get enough insured so i don't get a five hundred thousand the doctor bill and i want to treat that as an insurer as well i wo to earn the five hundred thousand dollars we put in our contracts that everybody is supposed to report to us when they subsequent tracked so that we can appropriately structure our risk and the failure to do that was my idea was to ation structure our risk so the failure to