e carolina casualty insurance company all refer to it either is c c i c or carolina variously this case is about whether there was an offer to pay it's really that simple c h robinson tries to make that offer to pay language into something else other than the simple words that it consists of but it bottom an offer to pay is just that it's a statement of the willingness to do something c c i see did so and three weights all refer to two letters that it sent shortly after the underlying judgment i'll refer to its inner pleader complaints and to certain motions in briefs that it filed in the in or plead or action any one of these would suffice to activate the policy language that says that if the company offers to pay its limit of insurance that ends any duty to pay post judgment interest additionally there is a cross appeal here that's the issue of interest on interest i don't know how my time will go but if i can have to include the amount of the post judgment interest was or or have not done as a point when you would have made a deposit it was there was not and it was not necessary because the contract involved here says that we cease any obligation to pay post judgment interest when we offer to pay our limit of insurance limit of insurance is a defined term in the policy it's defined as the one million dollars figure it is specifically defined to exclude to not include post judgment interest payments as part of the limit of insurance the precise language that we're dealing with is  offered to pay our limit of insurance limit of insurance is defined on the st phase of the policy if using the policy the declarations page that's a court defined term and it's defined as one million dollars most judgment in st provision which is in the supplementary payments part of the policy is what creates the duty to pay post judgment interest as long as we haven't paid offered to pay or deposited with the court any one of those three will suffice we're we're focused on offer to pay here the issue is whether c c i see offered to pay its limit of insurance or more particularly did it offer to pay one million dollars  did the or over the supplementary payments provision of the policy expressly says that the supplementary payments are not part of the limit of insurance to separately defined terms one defined particularly as just meaning one million dollars so we sent letters shortly after the underlying judgment and those letters hiway out as another aspect there was never a deposit was the trial court was or there was a deposit with the trial court but it was about a year ago there was not earlier than october of two thousand and nineteen that's despite multiple motions and briefs and effort ago i certainly don't think that's the case i think that the clerk needs to have some sort of an order or guidance from the court in order to pave the way you can't just walk in with a check and leave it with the clerk particularly a one million dollars filed another pleader action which means that we had said in our pleadings that we needed to tender the money to the court if we worked while the enter pleader action was pending to then write a check on the side either to underlying claimants or to the insurance without going to the court for assistance i think there could have been some some issues there but more importantly we asked the court for instance on multiple occasions we said the court should order plainness to place the insurance funds with the court and the court denied those requests and there's an order in two thousand and ten where the court stated its reasoning for denying it and the reasoning was that the court thought it was premature to have the  going on their dispute one versus the other versus the other about how much of the stake each of them should get but under rizzi what the court should have done is it should have taken the money and dismissed us and let us let us go and we  understand that there's a law saying there has to be in litigation you can deposit with the clerk an amount of money even if it's disputed and said put it in your drawer and i don't think that that ended up ended up going to to well again well that's a that's put a check on a drawer as sort of an odd thing yes i'm not talking about putting a check in  but i understand it what i can tell you is in our complaint we asked the court to administer the fund we asked the court to order and command the fund we said the fund created by the policy should be administered by the court in motions we said the court should order the plainest to place the insurance funds with the court we told the court on multiple occasions that we had offered to take the funds to the court we were looking for that order that we have been truly got on  would put it in their trust fund judge all i can tell you is that is that carolina repeatedly asked the court to order that we do exactly that and and under the circumstances we thought that that was the appropriate route to take we thought that that was appropriate given in her pleader law which establishes in the riddick case that the court is to take custody of the state or the fund that's  i did not mean to interrupt our that's fine maybe we should turn mikes up when it's going to happen this week in the in the presidential debates but that's an aside what happens is your client agrees that the policy limit is a one million dollars and you've got to pay somebody a one million dollars but yet you do not write a check for fifteen years why why is that because some contrary to the sense that we were delaying because starting with the initial complaint in two thousand and four each complaint asked the court to take the fun starting with motions that were filed i think is early as two thousand and nine we expressly ask the court to take the fun those are not the actions of a delay are those are the actions of somebody serially seeking to have the court order that the fund should be taken what the court said and the and ten order and then again in the september th teen order is that it would essentially refused to take the stay and it had a reason for refusing to do so we just think that that reason was legally wrong but the reason the court gave was that you thought it premature to take the state from us in till such time that the parties could then go at it with each other hammer and tongs we think rizzi points out a different approach language in the policy is that we have the choice of paying offering to pay or depositing with the court one dollar or the other or the other we are here saying that we offered to pay that an offer is showing a willingness to do something under the plane one dollar meaning rule that's what an offer is and that's what we did repeatedly one of the options that we had one of the three options was indeed to deposit but it says or we can pay off or to pay or deposit with the court and we're here asserting that we offered to pay and that we did it serially so  a deposit would have been one of the options and we did ask the court on multiple occasions to enter an order to deposit those funds but we also made the offer to pay which a loan was sufficient we're saying that we believe we did and in fact we asked for such a court order repeatedly right and then i realize that y true all i can tell the panel is that my own personal experience in this case and other situations is that when i take a check to a clerk they want to see an order clerks have in my experience been highly reluctant to take large sums of money that you know somebody just walks in with off the street they need some sort of guidance and instruction and that's what we saw from the court and we saw it repeatedly starting with our initial complaint in two thousand and four now if i understand you correctly your your position as you could just keep the money not deposit with the clerk were there would be something accruing some kind of interest was just one interest for all this period of time you held the money right we don't have to pay post judgment interest from the point in time when we offered to pay which the record shows we did multiple times we sought to get this money out of our hands with multiple efforts before the trial judge and would have gladly gotten would be did not feel that it would jam things can the judge the gate provisions of your insurance policy the judge can can and did i guess refuse to enforce provisions of our policy that's part of the reason why we're here can the judge negate provisions the the policy says that by offering to pay we ended our obligation to pay post judgment interest we offered to pay negated or not that's what happened and that's how the policy should should operate and how what's a period of time we're talking about were his and have to pay posts under your position you then have to pay post judgment after us under our position we wouldn't have to pay any post judgment enters because we were making offers to pay prior to the judgment that is an issue that the parties have to have a how many years or how many years as  l the initial enter pleader complaint was brought in two thousand four hundred and ninety dollars days after the accident the underlying judgment against our policy holders was in march of two thousand and nine we sent letters offering to pay the one million dollars limit of insurance march of two thousand and nine and september of two thousand and nine we made motions to the court asking the court to take the inner pleaders state on multiple occasions throughout this entire time period so again it's not for want of trying we expressly asked the court to do these things that is in the record and the court refused to do them and the court had reasons why it chose not to do them did you offer to pay a were there any contingencies attached to that offer to poll such as a reliever the two letters made mention that will send over a release but they did not condition payment on an agreement to release it was more what a lawyer well apparently sent over really well because the offer to pay was was what it was and then and then in the course of the letter council said let me know who to make the checks out to and i'll send over a release i think that's the kind of a standard phrase that lawyers would put in the letter in that circumstance but it was not stated that it was conditioned on their being released i think it was more of an expectation that that's the natural were no three offers also did they mention that really don't not all of them because some of them were made by virtue of motions brought to the court i think take our money and this is where there's an interesting interplay of the offer to pay aspect of the insurance coverage dispute on the one hand and enter pleader law on the other and and although there are some interplay between them here they're really two quite different propositions under one we're dealing with a contract that says we have no duty to pay once we've offered to pay the one million dollars on the other hand under the inner pleader statute and cases interpret ing it the judge is supposed to take custody of the state and we asked the judge to do that and the judge refused to do that and again the court stated its reasons but we think those reasons were were inappropriate and we think they were contrary to receipt and in the case law that we've cited so the judge is in appropriate order allowed the insurance company all this time to keep the funds and and i suppose accrue interest on the fonz have the funds available in their account right in the insurance co the court's order certainly stopped us from doing what we asked the court to do and you have to use the funds all this time right we had use of the funds whether interest was earned or whatnot would be speculative i presume it was something or someone or just we don't know that but it would be speculative if you didn't have the use of money no money we had to use the money your honor what i was commenting on was was the issue of what if anything we earned off of the use of the money i presume something was earned but i don't know that and it's not in the record yeah that would be nothing was done with money i suppose that would be a question for however your insurance company is organized payment means the transfer of money to someone to whom the money is zero and they say in court isn't any money so when you make a deposit in the court you're not making a payment you're making a and a couple of the motions never got rule of law mr muskerry no referred to a motion back in two thousand and nine and i think what he's referring to is a filing made by carolina in that particular filing was not renewed after the judgments were entered margin two thousand they made a further motion in october i think it was october two thousand and two the judgment parties the notice of the motion and they noticed up this motion in october of two thousand and nine and there was actually briefing on it but then new counsel came in and i think you'll see this in the record i look at myself new motions demonstrate a willingness to pay the fines i don't think they did because many of these plating the motions  her statement that we don't know money at all i don't know how that reflects and willing to pay i don't think but a willingness to pay is not what's required under their policy   at the very least carolina didn't pursue this they can call up the clerk's office and say can we come in and deposit these fine so i i i'm not aware of any rule or law clerk refuses to take it well maybe that's a good faith attempt to deposit but are you suggesting the phone call would have been sufficient no absolutely not i'm saying they didn't even make inquire already whether they could adjust the their position to say no we're not going to take the money as i mentioned in the motion that had been filed in october two thousand and nine there was never a ruling on in all various other pleadings complaints were by all throughout the years which contained no specific request for me to fund with the court the various motions for summary judgment and we can look at that i've referred to go there is motion for summary judgment thousand and eighteen interest is accruing post judgment interest is accruing during those nine years do you agree your i do it is a curb and the fight over who pays the post judgment interest would not prevent the insurance company from handing over a one million dollars check absolutely but absolutely  that was never read in the trial does the b b c imply that it would read that we are releasing the company from any other application to pay and wouldn't that sort argument was never made and plant and i stand on that and we pointed that out and in our opening thank you you've answered my question thank you very much well let me go to that let me go to that  thank you very much let me try to pull some of these strings apart and and share some analysis first in the order of march th two thousand and twelve the court addressed these issues and the tr court indicated that until the amended consolidated cross claim was resolved it would not move forward it said the summary judgment which included summary judgment on a variety of issues was premature at that time  and we had asked the court to order us to pay the amount to the court and under enter pleader law that's what we're supposed to do is pay it to the court i don't see a distinction in the law between the court and the clerk there may be no practical distinction once the payment is made but i'm going with what the law says so we ask the court and we did not get an order from the court telling us to pay the money to the court house so this is what i'm going to interrupt you i agree that the court was stonewalling you wouldn't let you who deposit the money with the court but what you're risking is a lot of post well you know for what carolina casually did as it continued to seek to pay what it sought to pay in a way that was consistent within or pleader law by seeking to pay it was making offers to pay offers to pay whether it is or isn't what we're seeing though is that we unabated mislead told the court to take the stake which is necessary in inner pleader law and that that ought to be an offer to pay one dollar number three was closed by the the client at that time but what i can tell you is that it would be inconsistent with the enter pleader which is had long been of record to go and make a payment unilaterally and will because we have we have filed a pleading saying court take our money and then deal with the stake with those who claim on the money we have no claim for it so take our money back out all money to the c be a good reason to ask the court for an order protecting us before the money is out of our hands out what traditionally happens in an inner pleader and i do a lot of these in the life insurance arena family members disputing who should receive pro is the insurance company in the life insurance arena is routinely released from the case dismissed from the case and that's a with prejudice dismissal by the court after the life insurance company says take our money and the court d takes it that's policies so it's just not an issue that arises in that car and not sure i'm persuaded by your analogy well my knowledge isn't meant to persuade you that life insurance policies are like liability policies it's it's meant to persuade you about how inner pleader works in the ordinary course of applying that statute and in forcing that statute and in the ordinary course when there is an inner pleader and one example is life insurance about carolina defended and has defended its insured throughout and i don't think there's any you need is about that so i'd say at bottom it's important not to confuse the offer to pay a language with the deposit to the court language yes we asked the court to take a deposit that's different from offering to pay which we also did and we did in multiple occasions mention of a release in the letters that wasn't a condition for the payment plus we have cited the case law and it's the it's the majority rule nationally that asking for release doesn't in any way impair the effectiveness of an offer to pay and we cited seven dollars or eight cases to that effect from around the country there didn't seem to be anything in illinois so we showed you what the what the trend is in the law nationally when these exact facts come up this is now i think you very much the reason is the interest statute itself interest and says that we're entitled to post judgment on the judgment the judgment that was entered in january two thousand and fifteen point three million dollars yes judge the problem with the centrist on interest argument is it's grounded on four cases and those four cases b a c home loan superior structures river and bank of pani simply don't support the argument they have nothing to do with what we're doing here b a c home loans and bank of pani go to the issue of what rate as between two rates should be applied a promissory note rate or a post judgment interest rate and they were seeking  dispute was over which rate should apply throughout the entire time frame that the parties were disputing superior structures is a battle between whether they both judgement interest rate should apply or the local government prompt payment act rate should apply and indeed river called interest a couple of times was also referred to as amounts paid for an option to purchase land and the option to purchase land is clear from the district description of the contract to be exactly what one might presume it would be that is we give you a downpayment we don't have to buy the land but to give an option of you know be the right of st refusal to get this land will pay you a certain amount of money on a schedule that amount wasn't paid on the schedule it was  there was a breach and damages were awarded for not paying the amounts to hold open the option so i don't think it's fair to characterize river as in any way addressing whether there would be interest on interest because the amount of the judgment involved the failure to pay these payments for the option to purchase the land and that's quite a different quite a different thing entirely also in reverse the interest that was it issue was pre judgment interest not post judgment interest and i can see a distinction there we're dealing with different statutory regimes and and certainly it was a different issue that was being addressed by the parties i think my time is up or nearly up