phoenix insurance company the police the courts i'm sure some time in the last ten or fifteen years the insurance executives who throw this safety valve kick out clause has been both united and stuffed it into the insurance company or will fail because what they provided for oil for them to escape substantial i betray tional wards is the reason that so many of the courts of our sister states telephone strips have said that this clause is offensive to public policy in the state of illinois counting is not the answer to the question and i could not look anybody in the eye and say that took place in two thousand and one and which was supposed to be brought to a speedy conclusion which resulted in an arbitration award signed off by all three arbitrators and two thousand and eight of disingenuous and i do not make the argument that the facility of the clause was sustained by the record to just state who has touched upon the question the last case  and thank you for bringing it to my attention but i don't think that sympathy here carries the day i do this important to put this into context and the context i think is definitely nineteen seventies which has a sign i betray sion is the exclusive for iran for deciding uninsured motorist disputes yesterday it became beth the legislature saw fit to put in the then twenty thousand forty thousand dollars kick out clause this one came before the illinois supreme court in read where the third  unconstitutional because it was not reasonably related to a legitimate government purpose recalling just being economic regulation the threshold  that to the decision in validating the course there's been no legislative reaction to run requiring that there these disputes be settled by arbitration  sometime in two thousand and seven maybe two thousand and six the provision in one forty three of the i mean should never a statute which had a twenty forty thousand legislative or authorized kick out is now big change to fifty thousand one hundred thousand credits a recognition about the unfairness of the ability of an insurance company to regard it's the nature of the beast that was created by this clause if you wylder a little bit outside of illinois you notice the cases that we have  would like to reference very briefly a decision of the supreme court of delaware invalidating the clause there i said that only because the delaware course is specific and suggesting that the two jurisdictions that did not invalidate the cause florida in jersey did not until the data base the filing rationale comparable to the illinois a man and they should be the same not what i'm saying ya i'm seeing with there's almost nothing your real there is a choice and your only choice given to an applicant maybe the insurance company is again it's being taken to the clain or indirectly because he has to cover this on insurance you i am and you him and he it it's only collected a few her or for example the state of illinois for how many policies that is her policies contain excess uninsured and under insured motorist with all respect i don't know where i would get that  or they could only that and sure they could tell you what their experiences right back to your hundreds of insurance companies authorized to write all policies in illinois i'm not exactly sure how informative it might be if knew the experience for one particular company i can't say it would be useless but i must disagree that it's terribly informative and i said so respectfully commenting upon that the insurance company here is definitely not the victim because although they are compelled to sell the courage they are also on a charitable organization and they are entitled to charge a premium for it we call your honor state in this state so far we hear of filing use statutes that may be a little esoteric if i am an insurance company and i want to charge a certain premium ice for are the rates and business was unconstitutional they have discomposed three arbitration which we don't hear of under the under insured motor statute it down a specific authorization for a kid got clause which we down to earth and i think that based upon what the illinois even very good respected judges can be wrong and frankly there ought not to have satisfied your honour's yes to why it is that their opinion that this is wrong the military said frankly that this is not pause which is the subject of this appeal was all held as part of the statutorily mandated uninsured motorist coverage in reverses on my farmers and the briefs of talk around read and we've heard from counsel this morning about green where he recognized that the uninsured motorist coverage in the under insured motorist rates are closely related as were his words and we submit that read cannot be distinguish in the insurance code section one forty three eight two so paragraph five a law is insurers to combine the two coverages when their limits are the same that's whenever you're going to have you know both the twenty thousand and forty thousand we want you to follow the state's atory scheme which can someplace the possibility that you're going to have the car were just combined and subject to a single it under insured motors and respectfully we do not believe that that would be a proper result under the law or as a matter of public policy trying to make it is that once you buy be under insured motorist coverage because it's you want a policy that's above twenty four then the insurance code allows it to be already been drafted to works right binding arbitration of certain claims and the last point i want to make with regard to the largest to the whole question of legislation is motorist to fifty thousand dollars and it should lawyers now realize that doesn't apply to our case but we can draw the conclusion that the legislature or writes binding arbitration it has expanded the arbitration is the public policy although on right now all the arguments that the defendant has raised do not support the anything it doesn't prove anything the supreme court also denied we have to appeal inmate time which is the first case to consider this clause twenty years ago the very first of all most of these cases have come the court said that the clause was upheld against an argument that was kind for it's a public policy now later courts did distinguish maybe not on the basis that the notion that the provision was unconscionable was not specifically raised or addressed to me but if you look at meharry at page two seventeen of that decision it does address and holds that the koran is not contrary to all my public policy so i think may hurt is a valid decision here but we realize it's only one of a number of decisions on either side of the question maybe the best way to describe the law in the area and realize for facing up we think that weed is probably the best decision i've ever since it's from the supreme court at middleby though on a different and in light of the fact that we do have decisions from the first the second the third in the fifth i think we would have to agree that the law is somewhat unsettled although we think that the the uninsured motorist coverage it can't be being added in the under insured mortars coverage council says there's something i guess unconscionable if phoenix rejects the of three hundred eighty two thousand five hundred dollars but if the defendant had been dissatisfied with the award the defendant and the same like to reject that we exercised in this case on  really don't impute recall data that would tell us with what degree of frequency one side or the other side is rejecting awards above twenty thousand dollars we would we would submit that the assumption of some of the appellate courts and by the like this well the the binding arbitration the bill for the moment we're talking about the lower end well that's obviously for the uninsured motorist arbitration that's written into the law and the under insured mot about well the lower limit as the supreme court instructed and read is there because first of all having a binding arbitration for the merely goods the twenty thousand dollars minimum when it comes moats the pro ition of claims because you go through arbitration instead of carving up the courts with these lawsuits and secondly it reduces litigation costs because authorization is going to be cheaper than taking the case to trial that's one of the whether or not there's going to be rejection in any case is going to be what has to be exercised by the insurer the insurer is going to depend on the particular case of the expectation of the parties in terms of what the damages are if we think a case is one of no liability but there is an award we might think that's too high we want to reject if they get an award but they think there was too much compared effect to reduce the net award or maybe policy yes we want to reduce litigation costs another policy is we want to promote resolution a third policy though is freedom a country that is a public policy in the state of illinois and the rule of notice provision or if we had a other provision dealing with a condition pct and the policy i'm not i'm not disputing that there are terms that are not the  alcohol how much coverage and that's basically it after that you know i'm not in a position to say whether i'm sure whether what other insurance companies will write i can tell you that the insurance co does contemplate the possibility the course is valid in the uninsured motorist coverage it would be anonymous to say it's against public policy in the under insured motor scope of the legislature has made that distinction the legislature didn't see put that language in the under insured motorists coverage provisions and you're asking us to redo them to it and that it's interesting in the law both yesterday i don't know if you read it there was a very long article by apply statutes in the manner in which they are written cannot rewrite them to make them consistent with our own idea of ordered list and public policy and went on to point out that that the legislature had clearly not made the distinction between uninsured and under insured motorists as far as the that coverage was relating to permissive drivers is a different issue but the thought is the same exactly the same you're asking us to read into something you read something into under insured the the legislature has seen fit to put in with regard to the the uninsured and i don't know but that's our office to do huge to imply i read anything into the insurance quote all i'm saying is that we know the clause is valid in the one coverage and we know that the two coverages can be combined and subject to one agreement and all i'm saying is that if it's valid as to the one it can't be invalid as to go about me asking you to rewrite the insurance code i'm not asking you to intact when it rested its decision on the section of the code that did just that and it so that the legislature has specified what his belief a public policy is with regard to uninsured they have not done that with under insured but are asking us to do that no justice to men respectfully i mean asking you to read read as it was written it neither agrees nor disagrees with understood now to be presidential doesn't confer approval they didn't take made on either now i appreciate what you're saying from justice worsens especially concurrence but as valid in the other coverage i know that my time is probably run up by now but we are appreciative and grateful for the opportunity opportunity to address the court because we know that oral argument is a matter of privilege and not a right but for all the reasons set forth in our brief and oral argument this morning we ask you to affirm the tr repetition but i do want to emphasize a few points which i think are key and which need to be emphasized i think i've heard the phrase freedom of contract no less than three or four or five times from counsel that  arguing that a formants is necessary to promote freedom of contract and i think it's clear i think everybody in this room knows that there really isn't any freedom of contract to get that is an empty platitude the only freedom of contract is the insurance companies freedom to tell the insurer this is what your contract says you can tell us how much coverage you want and you can tell us if you want coverage at all but then say nothing else there isn't it's twenty thousand or below or fifty thousand or below or two hundred thousand or above there isn't any choice this is it take it or leave it and best weather is no freedom of choice best price a conflict of heat and counsel is correct and tell you that just because there is no freedom of choice doesn't necessarily infallibly policy but when you couple nor freedom of choice zero freedom of choice with a contract it is very one sided and stacked totally in favor of one party as opposed to the other and which is oppressive then you have unconscionable then you have contrary to public policy and that's why only in uninsured motorist policies that was their choice ok they chose not to be consistent and it's not for the courts to make a consistent festal insurance companies could be having all the way around and i think anyone who reads read the supreme court decision i can tell that the supreme court was not happy with that provision they didn't think it was a good provision they didn't think was a fair provision the majority of think it's ssume that we would say the same thing in those other contexts they say that and how do we know that they say that because they say in distinguishing normally the statue concerning under insured notice covers of the discussion however figured it out when the supreme court sent the case back and said hey rethink this think about it again in light of read just make sure you look at read before you finally finally decide it and look at read and they  your honour's i think i think the i think the problem here is clear i think the answer is clear i think we have a provision bat is stacked totally in favor of the insurance company the fact that in shirts can win under this provision and the fact that there are wharves that insured might also want to retract this not mean that they at that that isn't heavily stacked in favor of the insurance company be the be so as it's written so that the insured is stuck with its worst case scenario and the insurance company gets away with its worst case scenario that is unfair and for those reasons we asked this court to follow the well reasoned decisions and google glass just parker