the case this morning which is united fire in each involving the same imputed a liability in dollars as this court enforce liberty mutual versus a state wide insurance company and want to wait a direct the court's attention to the only intervening circumstances of significance since the decision of the liberty mutual it was this court's decision in that of wire versus turner construction company to the effect that imputed liability or vicarious structural work at similar i understand you to be arguing in essence that there's no way that pre date roofing could lose on the merits because of these changes in illinois law  but i'm not sure how that really addresses the duty to defend issue particularly in light of the pekin insurance cases centex homes in lexington station where  y this problem seems to have been addressed and resolved in favor of finding a duty to defend your honor i am not in any sense exonerat krait as the court well understands there was a settlement of the plate to fs cases involving all seasons and they have subtle  all seasons was released from any liability and prate remained as liable for traits all on proportionate share of the common specifically refused to consider an agency claim because there were no allegations to that effect and that is essentially they consistent it with between for want for direct negligence liability and what is required for agency exposure if only to doubt that under  failure to do so in other words to exercise control with reasonable care that is direct liability under section forty one for the complaint here is reasonable to err in the control of said construction site therefore the only siri is a direct negligence theory against krait under a and paragraph five of the complaint contains some of that agency language and paragraph five of the complaint that has a serial listing of alleged negligent acts or o missions and and just reading that those allegations i don't know whether they can any of it can be proven but just reading the allegations it sure seems to suggest vicarious liability for well those allegations as the court is well aware that we is practicing lawyers and litigation amount to nothing more than boilerplate it conclusions there's a reason there boilerplate though and that's because it is the is the illinois appellate court pointed out in those the you can cases the person making those allegations the underlying plaintiff is rarely going to have good information at the time of filing that complaint about the relationships among the various contractors and so of course they're going to keep it broad because they don't know how defendants may try to point the finger at each other well let me posit that us they were trying no to a certainty that there has never been and i was defending cases under the illinois structural work act trying and appealing to in which a plaintiffs prevailed on an agency serape under section therefore under any standard plaintiff's lawyers do not allege agency causes of their action because the burden of proof is far more difficult them that for a recovery for direct negligence an entirely new theory provide carious liability even acknowledges at the outset that they're seeking a ruling in which they're ultimately going to be asking the illinois supreme court to overrule controlling precedent that would otherwise make their claim impossible under those circumstances do you think an insurer can say no we've got no duty to defend because controlling it is the actual complaint not some hypothetical version that must be considered and the illinois supreme court said the same thing we're not even going to look at an agency siri which isn't a understand is why you don't have a duty to file the motion for them i also had a question about the extent to which you're relying on the you annoy code of civil procedure particularly since the iowa state the rule in the centex and the rule in lexington station we have to look out the pleadings where in those claims were considered and if we're looking at illinois procedure governs this question as far as this case is concerned no as far as the question overall is concerned since we're focusing on substantive illinois law as far as that u t defend is concerned i believe that the answer is yes the illinois supreme court has consistently consistently said that number one there is no such thing as agency series and as we pointed out you cannot have a contribution claim which by definition is faulty a portion in th context of an agency series because contribution presupposes that both to contribute to the and contribute or is no such thing other of them in the instance of a pure vicarious liability setting which is not alleged here for ind good morning ma'am please the court my name is katherine wyler i represent craig thing in this matter of united fire owed prate a duty to dissent the gist or court's ruling should be a united fires focus as we've been discussing even this morning is that it's it's claimed the claim here cannot somehow exist in the context of construction negligence and that is simply incorrect and i think the best starting point for that is to go back to some of the questions that you judge s as policy rider that was a condition of his son contracting relationship and i understand that this is fairly common in the industry of wired the named insured  some contractor all seasons to attain a writer to cover the general contractor prate your client for vicarious liability responding at superior liability to the extent that you know that we understand that the writer is really inexpensive and is very common in these kinds of suckered trying to situations or circumstances in the construction industry and and so that's just a background fact and also we understand scope of the coverage to be limited to a curious liability so to trigger the duty to defend even though the duty to defend is broader than the duty to indemnify to trigger the duty to defend the underlying complaint must allege facts just so chest an agency relationship because my curious liability is agency liability it arises because of principles of agency law based on the relationship between the parties here the general contractor your client and the subcontractor all theisms do we have any allegations and at that age it relationship between your client and all seasons and the underlying operative complaint yes chief judge sykes and that actually employees was present during the course of the erection construction repairs alteration inside iran works and it's already there i'm working there's nothing in that paragraph that refers to an agency relationship between prate and all seasons i'm looking for allocations of an agency relationship between preach and all seasons because that's where the area to trigger the duty to defend under this coverage understanding the limited scope of this coverage which you've just liability is distinct from direct liability and depend on an agency relationship the basic fundamental difference between agency liability and direct liability for one's own torts so if you're on a plane here there was a duty to defend because this complaint provided a factual basis for there to be an agency relationship between you prate and a allegations your honor concern the relation i disagree your honor and i disagree because the description of the relationship between all seasons and prate in the complaint they just scribe a relationship between prates is responsible in certain respects for the work site allegedly and there is there is a question about whether craig had anything to do with the activity that was happening at the work site versus all season that was all entities the relationship you have early in the complaints where the events are taking place you have a discussion about exactly what freight was responsible for to see who was working for all seasons  over the seasons that allegation is made in paragraph four yes your honor to exercise reasonable care in the control of said construction site yes it's there and that's why this case is so similar to our restatement for one for direct liability allegations i'm looking for allegations of an agency relationship that ended just yet it had a right of control over all season sufficient to coverage and only that that that is the language that is included in paragraphs three dollars and four dollars that we can wait we have been discussing and that is the language that yes judgments our the as i understand this my conclusion about at the outset of the case about who is liable for what and under what appears rather we consider potential exposure and is there anything know enough about the relationships among the various defendants to be able to communicate and therefore tries to keep options open see when she develops during the during su and i would think that if if if it makes a difference to somebody it would be possible in the underlying torrent sued to try to force the plaintiff to choose one theory or analysis of the duty to defend argument and that is exactly the point here there is nothing in the complaint that forecloses the possibility of an agency claim and at that point the duty to defend is triggered and  just want to go back to one last thing related to chief jobs judge flexor questions about the on a supreme court a lot of cases that we have these pekin cases it's a long line and it's not just published decisions there are multiple unpublished decisions to these come from and least as the best our research shows three of the five district courts in the illinois appellate courts and most importantly might my point to your honor is the there have been attempts to appeal these to the illinois supreme court the illinois supreme court has not grant to disparage mary review over any of these and i think that suggests that there there is not concern or at least there is not the illinois supreme court to intervene and correct a misinterpretation of the law here what about cases this after carney yes all of these cases every single one of them came down after cari all  there's lexington station also a twenty seven seen case there is a th district case called core construction services from two thousand and nineteen again as as an illinois appellate practitioner i realized that the helper would have my head for referencing many of them having given rise to petitions for leave to appeal all of those p l a's being denied and they're all post cards but i think we can all agree as experienced appellate practitioners that state supreme courts often like the u s supreme court wait for issues to percolate in the lower courts and till there is a reason to intervene and absolutely no i don't think we can draw any conclusions from at the fact that leave it to appeal has been denied and that even the illinois intermediate appellate courts in these many he can decisions it made to a great deal of conceptual confusion in this area at the state supreme court attempted to court would rule as to this coverage dispute and whether knowing what we know from carney the state supreme court would require some allegation of an agency relationship between the general contractor and the subcontractor to trigger this coverage which as everyone agreed only covers agency if liability based on agency flop and your honor i think the  illinois supreme court and carney did precisely that and if i may it's in paragraph thirty eight of the carney decision it's the last one of the last sentences and it states agency of law under which an employer may be vicariously liable for the with that phrase because i wrote it yes your honor yes you did it certainly and you absolutely correctly anticipated you know why or how the illinois supreme court won just this issue however and that worked against you here because the court is recognizing that there's a distinction and a sharp distinction between agency liability by curious liability planchet superior liability goes by different names and direct liability and so it would require some allegations of an agency of inhalation ship in the underlying complaint in order to trigger a duty to defend for this kind of company and as the illinois appellate court has held the language in the complaint here similar language is sufficient to do that i see that my time is up if there are no further questions from the court we asked the court from the just all right thank you very much mr miller your time had expired you may have a minutes a and looking and addressing the judge hamilton's a service there is no possibility of vicarious liability here where we have and admission the judicial admission admission when i see is when a geisha strategy even says we think we're entitled to win on this ground but we know that we might lose on that basis so we want to be prepared to  to defend them alternative grounds as well as far as the rule thirty six a request i was seeking information as to whether we are it's dealing with joint tortfeasor to hold on the remedy of contribution applies we also a have here a settlement of the case which proves out that this was fault apportionment and following the settlement there could clearly be no attorney's fees it because any settlement under an agency theory as they would have it automatically released crate that's right why don't why can't you all the ins file that motion to you prayed out of the case because we were defending crate and because the attorneys that were defending prate didn't want to do that they cause they knew that there was no agency claim there that this was a fault of course and claim and that therefore they wanted to continue defending they agent officer and employee eat claim to support an agency relationship that could or might trigger the vicarious liability endorsement in question and if you ever assume the defense of a party under an endorsement such as that then the issue but comes when in the world do you reach the point defense and it turns out that the acceptance of the offense was in error or then you are entitled under the general agent's case to recover back your attorney's feet  there was clearly no agency relationship here and do we respectfully submit that the decision below they should be reversed you know all respects as to the initial duty to defend the end it has t