may please the court the trial court erred in this case in finding that there was any sort of misrepresentation made by the defendant attorneys the law firm on the two thousand and eight application the procedural posture of this case is really where this appeal starts the parties filed cost motions for summary judgment on the basis of whether a misrepresentation was made on the two thousand and eight application the relevant question fur the answer to that question was no that answer was truthful at the time and with the answer remains truthful to this day the issue that came up on summary judgment was whether a claim had been made within the five year period the language of question twenty one day focused on completed does the insurance prospective insurer have a copy of the policy itself no so does the definition of a claim within the policy itself have any relevance to the application the applicant  not given by definition of a claim certainly when the policy is issued there is though the word claim is defined in the policy but not at the time of the application the in the press spec to ensure does not have a copy of that that is correct that is correct and i see as representative testified to that fact as to the applicant so the application in question twenty one to be distinguished between not been made within five years prior to the policy period the undisputed facts established that the two thousand application was tendered on or about december thirteenth two thousand and seven more than five years about five years and a week or so prior to the tender of the application the law firm that mr douglas temple was with at the time holland and knight had received an a question this is this this starts with the the decision of the two thousand and nine policy correct to policies were and on on the two thousand and nine policy is there any difference between the content of a renewal policy and a new policy there is a difference in the content of the application for the renewal policy but the policies themselves are the same approximately i haven't looked specifically as to the exact similarity but the page but yes i think there are substantially similar  four of the insurance code which is the section upon which i a speed a needs to to use to resume the policy is a mandatory section and it requires that a misrepresentation must have been stated in the policy or endorsement or writer attached there to or in the written application therefore in the opening application for renewal and that our right i speak did not introduce that into the record statute that i have that's why i'm asking you and i guess in a straight away manner is there a continue i didn't see in the two thousand and nine policy related to a two thousand and eight application or two thousand a polic in other words if the two thousand and nine policy was a new policy would there have been a basis for seeking cision of the two thousand and nine policy if the two thousand and nine policy had the same application that the two thousand and eight policy had then the answer would be no because there is no misrepresentation in the two thousand in policy and the same arguments would apply to two thousand and nine policy but the two thousand and nine after cation did not incorporate the two thousand and eight application  it was a standalone application i suppose the i's be it could have incorporated could have asked to supplement any prior up locations but it did not do so and it did not introduce any evidence that would have supported a rescission of the two thousand  if this was not an automatic renewal policy the statute section one fifty four does not exempt renewal applications the statute hinges rescission on the application that gave rise to the claim because in a number one of course it's well settled that if there is an enduring that in an insurance policy or an application that is to be construed against the insurer and in favor of the insured and to the extent that the co basic rationale that was argued biased v a and accepted by the trial court that the lawsuit that was filed several years later in two thousand and five was a court claim was not correct because a claim is made and reported policy is locked into place as of when a claim is tendered to the carrier and the c n a letter shows that that was done more than five years prior to the date of the application the lawsuit that was filed several years later was a follow on to the claim that had been previously submitted but it was not a claim and therefore the answer to the question was a claim made within five years prior to the date of the application was truthfully no because the lawsuit was not a claim the court could have it if the court was considering the n t cutey of that section of that work claim the court could and should have considered the testimony of an industry expert john doerr who testified we have plenty of experience in the property and casualty industry and he testified that the property and casualty industry would not consider that lawsuit that occurred in two thousand and five to be a new claim because again you can only have one claim on claims made and reported holosuite but there is a little confusing in th the determination had been made that misrepresentation made it a summary judgement stage at the time you identified posed yeah expert that was really the trial phase of whether previously found was rivers of haitian was material so it's it's it's confusing to try to then juxtapose what the court should have done under your version should she vacated her previous summary judgment order the middle of materiality trial you know i mean it is sort of the most simple sonorities to me well the motion to reconsider was testimony but it certainly was a bell through his deposition testimony which was first submitted and then again we made an offer of proof to mr gore at trial but i'm i'm specifically referring to the motion to reconsider that preceded the trial that the trial court the court erred number one instead determining that you take a music lawsuit was a claim and should have found that there was no misrepresentation should have found that summary judgment was appropriately entered in favor of the attorney and law firm and and not in favor of ice v a and the case should have concluded at that time the courts did not do that and the court of appeals trial on the to reality because under the court reasoning as the second one fifty four code provision requires a a materiality finding so we get stead to the issue of materiality there's no question no question whatsoever that i used to be a would have had no exposure to the tango music like the it never under any set of circumstances would have been called u time to time the representatives said we might have offered it with mr philip we might not have offered it with mister rich or truest on behalf of the firm testified that it was the end of december and if the firm had been offered a policy without a suitable they would have it because at that point they needed to to have a policy on the materiality issue goes to whether the chances of the events insured against are are going to be materially changed and the tang music lawsuit did not change under any reasonable standard what i see a was potentially exposed to but but wouldn't change the the person parties are shereen we careless of the justices know at the trial court level certainly here in circuit court all you need to do you can have a five million dollars claim but all you need to do is say you have a thirty thousand dollars additional minimum claim so what somebody with an attorney who can allege anything they choose to in a complaint alleges that is not again by any reasonable standard a measure by which you can say oh that is material highest v a they had to know how much was alleged in the complaint that just does not really hold up so there was nothing objective lee material about the tango music lawsuit that should have resulted in a court finding that decision was appropriate for the given policy favoring coverage we should not be penalizing attorneys who had no knowledge of any potential wrongdoing that another attorney in the firm might have engaged in or concealment the policies in any event the trial court did not think that partial rescission was appropriate and did not order partial decision the other issues that i can rest on my briefs are with respect to the to have thirty seven years i don't make projections i've argued to their attorney of record almost five hundred fifty published opinions i wouldn't venture a guess i find it either professionally prudent or  it's not just to slow us to question about the meaning of the word claim i don't think there's any lawyer that has a question or a problem with the term claims especially one who has done an application for a lawyer malpractise policy as any member of the firm had a claim made against him in the last five years judge mason now justice mason said no reasonable lawyer would have an interpretation of that question as limited to matters not yet and suit john as a matter of l and send a questionnaire to the other five or six lawyers in the law firm and ask them to zone questions which that those questionnaires are in evidence and the lawyer who would have the claim against him mr tipple said no effectively been with the firm six trial head nor occasions a person that question in the matter which is lawyer did and did several times in the trial court and which the so called expert attempted to do as well the fact is they had a question as any member of this law forth the requirements a misrepresentation must be in writing which it was it must be on the application which it was it must be material and it was uncontroverted by the underwriter bonnie girl that it was new material and a must be made and which was held by the manifest where the evidence which is which misrepresentation was material led to the issuance of a policy that policy was removed that we knew about she by the way is on the record i believe it's c six ninety four to seven twenty seven in the policy judge to look justice lewis by general counsel i have a question on the on the language in section twenty one and during the past five years has any claim  been made against naplan or predecessor from under your argument that the demand on the insurer is the same as a lawsuit how would you define a claim being made in the lawsuit context is that when it's filed because if that's the case what if nobody is aware of it being filed and then is that a misrepresentation or is it when it serves the policy defines the term claim a demand in writing for money or services or the service of a suit or arbitration but we know we covered that issue i asked counsel for the appellant that question was a copy of the policy tendered with the application so that there would be a definition of the claim in the first instance and the second instance is are the definitions of the policy incorporate operating to the application you've just explained to me as part  nothing that prevented someone with a question as to the meaning of the word clam crawling i asked a mutual saying what do you mean what does it include nothing prevented that from happening s as a matter of law that no reasonable lawyer would not understand what the word claimed that in question twenty one day twenty one b s a different context that inquires about an incident or circumstance that may lead to a claim or sue and paperwork will decide based upon would you give us whether we're going to do that it's basically the letter and the policies are identical and the fact is they didn't discover the misrepresentation and the fact that four as it's all imitation provision in it but not for this type of policy there is a one year provision for the renewable whichever is less for the policies that are identified in session one forty three point thirteen eight b and c of the insurance  on an application which contained immaterial misrepresentation and under section one fifty four that entitles the insurer to seek reception there was no prohibited in section one fifty four which is the expression by the legislature of the ellison's not contracts in general but insurance policies for how it's done a material misrepresentation or met a misrepresentation in the application on behalf of the insurer which goes to the materiality up the risk to be assume that's what we proved at trial and that's we stablish in summary judgment the fact yes illinois law sets there is no independent obligation on the part of an insurance company to investigate the accuracy information given in an application the dirty rice with the insurers to be truthful the illinois law permits what is referred to as post claim underwriting that is to say after a claim is made the company through whatever investigation they do can say wait a because we were misled or that we should be allowed to go from the earlier point forward why pretty well again there is nothing in section one fifty four which governs the recessional policies the says you can't do that you can't do that just disappears with respect to an auto policy a foreign policy or homeowners policy that's what section one fifty four sets that's the the last sentence what talks about the policies that are within section one forty three point thirteen a b and c of the code those policies have a one year limitation in other words if you live in the insurance company and the claim is made after the first we will hear different coverage it to accidents standard nutri learns about that after the first removeable after the sixteen year old had a serious auto accident injured two people in total two cars recession suits filed the gforth district says too bad too bad because the statute says one year or we knew it whichever is less so basically if you commit fraud and you get away with for six months you get free insurance coverage we argued in that case discover whereas nothing more than that in hindsight it was not reasonable and it was properly stricken by judge mason the ruling with respect to the term claim as a matter of pride being clear and unambiguous was unmistak as it was just like that to come in on a couple of things language is important and this case spins around what i could have asked in an application in the two thousand it up occasion as does justice pointed out what it could have put into the two thousand and nine application such as incorporating the prior application is just novel fronted out but it fails to do that now one of  the questions i was asked was whether there was or perhaps a statement by counsel about whether there was a forty for the language of an application how it's construed i did cite a page seventeen of our opening brief that the man versus  council admittedly it's a one hundred seventeen illinois case but the the the concept is that the language in an insurance application will be construed against the insurer and liberally in favor of the insured and of course that makes sense and i would also direct the courts to even to the policy itself which as i discussed with just a slew really are the at the applicants did not have but the policy itself incorporates the application  into the contract so for ice to be a to say apply a different standard to applications then you would apply to contract terms even though i see a incorporates the application into the policy and therefore it would be construed according to normal policy construction is again a bit disingenuous i just b s own definition of claim not only includes a service of a lawsuit but contrary to what counsel s it is not into manned in writing but it says a demand received by the insured for money or services or the service of a suit or an incident or circumstance of which the insurer has knowledge that may result in a demand all of these would trigger the claim and that happens prior to the five year period again this is an issue of i c not asking what it could have asked we asked the court to reverse the trial court's a summary