deciding the necessary threshold issue of whether standard was a stopped to raise any defenses to cover each decided only a single issue never reaching any other  concluding that all telephone consumer protection act damages are quote in the nature of putative damages and quote and therefore not insurable quote as a matter of illinois law and public policy as cook on the panel descended from the denial of her hearing i intend to devote my time this morning to that single issue i've learned from reading this court's opinions that it is sensual to frame the question correctly and sufficiently narrowly that the correct analysis can be applied with the great respect that i hold for the appellate court the issue was framed incorrectly and therefore the court's analysis never as a matter of a collison the court's ruling was not dependent in the slightest way on the words of the policy the words the policy were not examined policies and for the purposes of the review of that ruling here it must be assumed that the standard mutual policies do in fact extend coverage for those damages they have free will for purposes of argument the court said relying on bieber versus country mutual but damages characterized in that manner  own insurable by virtue of applying a largely unspecified public policy to void presumed coverage of the policy and i respectfully submit that the public court did not mean gauge in the required close reading beaver or of the considerable body of law on this topic us where bieber was the first opinion in indeed remains the only in illinois to apply public policy to decide that the great issue to prepare for the proper reading of bieber shows that the issue here for decision today is whether the conduct of the insured which gave rise to the damages in question can be insured against the issue here is not whether highly intoxicated bieber while a short opinion nevertheless was properly focused on the nature of the defendant's conduct but even a word about where to draw the line quote prohibiting the protection of insurance and then with me place in quoting bieber said quote it is drawn not between negligent conduct and intentional conduct but between negligent conduct and the kind of unintentional conduct for which punitive damages may be imposed so when we were talked about lack of insurance for punitive damages that was just a proxy for saying that you cannot get the protection of insurance for quote the kind of conduct for which punitive damages maybe impose this reagan yes i did and i know just from the brief opening here that this is not the basis of your argument today yours is conduct but i found it a little bit curious on the issue that was addressed perhaps to that effect saying that the availability of that which is i think section c of statute saying you get treble damages for willfully or knowingly violating the statute is an indication and i've been there in this case a lot of that effect saying that that's something else that's the that's the bad conduct for which additional damages can be levied and then it's not for decision here but the courts hit on something and that indicates that the the other slightly different avenue if you're rich you know absolutely there's lots that have to be left on the cutting room floor and getting ready for my twenty minutes here in that and that was a key point so we relied on i did you know most time we don't get into this kind of exercise  says first by punitive damages we mean damages awarded with a view to punish the defendant for your responsible conduct misconduct we have in mind it was intentional or malicious wrongdoing or action having such a conscious disregard of others that a generally jury might fairly unfair from infer from the circumstances of aggravation that the wrong partakes of criminal character now the next section of the minority opinion which was not directly quoted  concurrence the more appropriate basis upon which to hold the public policy prohibits insurance is the nature of the conduct of the wrongdoer not the nature of the damages awarded if the defendant acted willfully intentionally maliciously or coverage should be denied of course that's very consistent with the state of illinois law so now we look to the illinois law feuded of damages and we look to the t c p a to see how the beaver might be properly applied in this case whe awarded only where the defend his conduct is well for outrageous due to even motive or a reckless indifference they are not they are only available where the wrongful act complained of is characterized by wantonness malice and question or other so then we look to the conduct of the defendant lay's conduct here violation of the t c p a does not begin to even remotely approach the standard that would be required under  cases around the country liability under the t c p a is strict it is also completely uncontroverted in this record and i think that's important that les innocently hired a fax broadcaster who express represented that he had lists of places to which he could legitimately and legally fax what lay needed and that he would comply and did comply with the law so it can't possibly be said that the nature of the conduct of here is sufficient to bring this case within the beaver or mcnulty rule calling to t c p a penal where the damages cheated of does nothing to analyze the issue for the court the focus must be on the conduct and this conduct doesn't match up with the purpose or the stated scope of the rule just a regular we we have the legal issue for sure and that's what you've been addressing i'd like you to comment though on standard the picture of the standard paints with respect to possible collusion between defendants and plaintiff's attorneys and plaintiff class action  attorneys and the people holding the bag or the ensure that it may have nothing if there are little if anything to do with any legal argument on but i think since it's appears to be in this record before us and i'd like some there's no indication of collusion collusion us and cases are settled all the time when you have a reservation of rights and where the the ensure has to step back from the defense and you know cases get settled all the there are other ways in which the court can conclude that the b rule does not apply here and i'll shorten the sup a bit the t c p a is a remedial statute and it's not penal it's an intent and so while the insurance question before the court here is a matter is very persuasive along with respect to the interpretation of federal courts or federal statutes every federal court but one district court case has decided the question that the t c p is remedial and not a contrary opinion we also respectfully suggest that the public court cannot take into account another significant strong public policy at work here which is a public policy in honor and in favor of honoring private contracts the freedom of contract and also the rules applicable to the interpretation insurance policies the enforceability of private contract is a value which this court has always and also very recently honored in cases such as progressive universal versus liberty and most recently in late two thousand and twelve in country preferred versus whitehead the governing principles were plainly set out is in the public interest that person should not be unnecessarily restricted in their private right i've shifted grounds a little bit here i mean i'm not contradicting myself i'm simply saying there's another facet of this and that facet is i mean some people say ok is this statute penal statute and  then i think that that doesn't answer the question but to the extent that the court wishes to sort of accommodate itself to a lot of case law then the answer is it is remedial in penal so it doesn't make any difference and so for purposes of both applying the beaver rule in which you have to look at the nature of the conduct and also applying the country mutual versus whitehead the freedom of public contract or are we going to do with the court here did which was to insurance policy in closing public policy but you have to look at the facts and circumstances of every case and so yes the individual facts of the case and the end of individual structure of  contracts or statutes does matter in a related vein the appellate court also gave no service to the rules regarding the interpretation of insurance policies that the time that these policies were sold several illinois courts that issued opinions holding the policies had the potential for coverage of the c p a claims standard received premiums for that coverage the insurance industry had available common exclusions which we reference reasons i can't express leigh i can't answer that question your honor i simply don't know i'm not i i don't like i really can't come into the on saying that the this disk question this imposition of public policy was sort of a real sleeper of an issue which there was in in oral arguments in the fourth district and that's perhaps where he came said there is the potential for coverage and implicit with that within that is the thought perhaps that these damages are so bad that public policy should be applied to  to do away with them we've offered the court the the opportunity to decide whether the beaver opinion should be followed but even if the court does not decide to not raised as colorable and interesting at paragraph twenty eight of its opinion or whatever that means a lot of the issues that this court could clearly resolve if it decides that the damages under the t c p ip are covered by a policy of insurers is the fact nine by law clear class action subsequently removed to the federal court july thirteenth just a little over a month later standard mutual issues a lengthy eleven page reservation of rights letter to the insure disclosing the nature of the policy defenses and issues under the three policies at issue which include a policy by state or mutual issued to a real estate agency for the business it policy issued for an apartment building and disclosed to the insurer they signed a waiver on july twenty second so whether they have a five week period in october of two thousand i'm four months into the litigation the attorney hired by standard mutual is fired by normal lay fire he's replaced by personal counsel who was shown on the reservation of right slaughter which is in the record at eleven o three to eleven sixteen that was ed reese shortly thereafter one month later two months later the case cases settled for one million seven hundred thirty nine thousand dollars under an agreement which they call it argument justice thomas you pointed out that the case was a seven circuit discussed the he created montessori case the c e design case talking about breach of the cooperation was we have a voluntary agreement undertaking we have other issues with respect to that we have a breach of the common law duty of good faith and fair dealing between the insurer and the insured that having occurred what happens next they agree to a judgment a judgment for a million seven hundred thirty nine thousand dollars which will never ever ever be cool acted against the insured insured has no responsibility for the judgment the judgment is solely collectable against the policies of insurance then there's a a finding made by judge reagan the relation in the federal district court in the senate lewis approving this settlement they rely on that approval as if it is somehow magical where the seven circuit talked about it doesn't mean anything it's not binding on any other court it's not binding because the parties who colluded or concocted or agreed to a settlement that will never be paid by the insured come into court hand in hand or arm in arm i think is what they said creative montessori and they call that too weak a read to rely upon for that type of settlement so that issue is before this court the issue that this court addressed in two thousand and six in the growing versus potomac case is the flip side of this  case held that as a general rule as a general rule and insured requires the it must obtain the consent of the insurance company to settle with a claim on it that's the general rule the exception case where the insurer disclaims coverage abandons it it's insured and then is not left in a position to point to any part of the policy that would protect its interests in that case this court approved what some waters call a rollover settlement or an agreed judgment where they basically they decided the slip and fall down the stairs was worth six hundred thousand dollars by the insured because of the disclaimer signed all its rights to the  insurance company and the tort plaintiff agreed we'll never collect a nickel from the insured so only against the insurance company this court wrestled with the issue that's found in the in the in the policy the policy talks about recovery this court is bothered if these allegations are are given or whatever you want to call the collusive underpinnings here that issue if there was either if this court decides it is a separate issue that actual monetary damages for five hundred dollars per violation whichever is greater ok so that part of the statute which is really what we're talking about is both remedial you get the recovery of actual monetary damages which in the case of a faction and everyone in this room probably has walked to a fax machine and picked up a fax and what that involved is perhaps a couple of pennies for the use of the paper the ink the toner and the time those are the actual monetary damages or five hundred dollars per faction which ever is greater well five hundred dollars is certainly greater than the actual damages anyone  conceivably sustain with respect to the receipt of an unwanted fax the statute then proceeds and says a known willful violation of the person is for that violation the liability is the actual monetary damages suffered by the by the post by the claimant there are five hundred dollars per violation which offers greater actual monetary damages would be something a person would prove as to what their loss was and i'd mention that the cost of the piece of paper the ink the toner and the time it would take for someone to walk from a desk in an office or chambers to the clerk's office to get a fax off the fax machine those would be the actual damages that's remedial community damages or penal damages or damages a bear no relation whatsoever to the actual damage is five hundred dollars perfect don't sue for the pennies they lose by receipt of a fax this is a class of three thousand four hundred seventy eight violations and they're not suing for three or four cents each they're suing for five hundred dollars each they h three thousand four hundred seventy eight faxes times five hundred bucks a fax is one million seven hundred thirty nine thousand dollars that's what they agreed to that is those are damages which bear no relation whatsoever to unwanted advertisement for a car wash in girard illinois that's what this case is about or are or they get five hundred bucks for a fax which we submit to the court is  similarly advertisements mr sanders yes his me i want to go back to something you said because i want to understand the posture of this case and if we're dealing with what's what might be referred to as the law of the case you said there was a the agreement was approved by judge reagan not related and federal district court if i heard you correctly correct were there any objections and there was standard even aware of that they don't place that mr ch revisit the point that he had asked mr reagan about the nature of this kind of agreement that you had turned and said mr referring to mr reagan that well the argument is that it's just an argument your position is just an argument and then you went on to discuss that there are cases out there seven circuit so forth my question is factually what is your response to the argument that it's just an argument i'm trying to understand drill down on what we're right which we did not raise in this case the conduct of class council as it was in the various seven circuit cases we didn't know what their conduct was we were presented with a settlement and then you read the supplement but settlement agreement is in this record that's that's not a settlement it gets not a settlement for an insurer to fire its lawyer and then roll over and say ok and over judgment against me i consent to the judgment i will give you my employees and their testimony in my books and my records and i will assist in every way i can so that you can collect that judgment against the insurance company this is not unusual to this case we pointed to the other cases because a seven surface went on and on and on about numerous cases that these lawyers were involved in that mr reagan but the henderson wants a law firm and stock in that and they said well don't we creative montessori create a montessori was remanded and it got all cleared up well let's find a what about the reliable money order case what about the c e design case this is this this is public record public knowledge and it's a matter of  a manner or method of doing business they get these cases and typically this this case your honour's is not the typical case this is not peek an insurance versus x data which is cited that's a case where there was a disclaimer and the appellate court was quick to say to the insurance company represented by me you can't complain about what happened here you disclaim coverage well we can't complain about what happened here because my client standard mutual did normal life because they hired business to business business to business lied and said we have people we can send these faxes to have given permission for their receipts that having been said the facts as you know were sent from  punitive damages for the conduct of an employee has always been in every case in illinois an employer employee relationship not an agent there is nothing in this record to suggest that business to business was an agent of  and even if it was it makes no difference well a can't hide behind would be to be did that because under the t c p ebay the sender right away is the one who is liable and it doesn't there's no vicarious liability under the t c p ebay tegel a normal way to lay real estate agency hiring someone to send faxes is still the sender their liability is not vicarious their liability under the act doing business or whatever is in the name of his business was and this court held that he had a claim that fell within the advertising injury provision of a general liability policy we argued in the pekin case as we argue policy language talks about person whereas other sections of that same provision advertise again during talk about person or organization such as a quote a corporation would be  sort of in the lightning round here in response to your question just thomas which is kind of differentially picked up by justice burke about the availability of the treble damages we we  e page eleven of our reply brief page thirteen of our main brief we cite universal underwriters to that effect and universal underwriters a federal court of appeals case said that also the fact that congress selected to make trouble damages available separate from fixed damages strongly suggests that the fix damages sort of additional goals other than deterrence and punishment and in the preceding sentence talked about the five hundred dollars as being   and not him personally but rather his his client i mean the argument is is off the tracks and he's here wanting to talk with you about issues undecided not decided by the appellate court and talking with you about cases that are cases not gambino which is when can punitive damages be award and they can only be awarded for a grievous conduct and not what we have here on the vicarious liability question which was raised and that was something that i did not reach in my main presentation here is absolutely we do rely on the fact that the sort of the central body of illinois in this is that if a if an insured is vicariously liable for the acts of an employee or in agent and those words appear in these cases then that's something that you can insure against so there's lots of you know bad conduct if you will for which people buying legitimately can buy insurance and to say that this liability here is not vicarious just doesn't meet with reality  reality is is that mr lay running his real estate business hired somebody who came to him and said look i've got a legitimate way for you to conduct your business here and then we're going to do it legally and it turns out they lied and they didn't do it in the only reason we have any liability is a regulation which says that well the know if somebody does it on your behalf you're a sender that's no different than a corporate agent or employee who is out doing your work you whether standard mutual knew of the hearing knew of the circumstances of course the and that's in the record as well they're assigned counsel of course in illinois you have a as it is referred to as the tripartite relationship the the assigned counsel has two clients if you will he has the insured but he also has the carrier as a as a planet he had been discharged in were not being critical in the hole but he had been relieved of formally which the insured has the right to do that's the whole nature of merom casually versus backers he should get to pick your own attorney and so in the course of this he had been relieved of english language is not exactly precise here but wearing our other hat we might have the right to get contribution that souter and the other had of course was the standard mutual so for mr chalmers to flat out tell you standard mutual