you understand it'll be a responsibility to keep track of that you may perceive creating a completely new cause of action which contradicts legislative intent common law and the principles of agency law it also has on to work consequences for the entire insurance industry as well as the court decided to use the insurance co definition of insurance producer because it's not defined in the insurance placement liability act by superimposing the insurance codes definition of insurance producer they fundamentally transform the meaning and the purpose of the insurance placement liability act the appellate court's decision disregards the common law that was in place at twenty one twenty two a one was an ac as well as all the cases that have followed since nine hundred ninety seven no case other than the fourth district's decision in car and in this case where they essentially adopted car had they supported the notion that section imposes a duty on a captive insurance agent to have a duty to the insurer and procuring insurance in making its decision the appellate court disregarded the rule that they have to presume that the legislature was well aware of the common law when they enacted that legislation the common law had been longstanding dichotomy between a captive agent and an independent agent or broker the captive agent is someone who works for one company such as country companies state are all state they have and agents agreement with that company it specifies all of the requirements that they have for selling insurance including the fact that they can only sell that compan insurance and independent agent or broker on the other hand can go out into the marketplace and approach various different companies and find insurance that they think is best suited for the insured and that's why the case law broke out that duty in saying if we look at agency law longstanding is you have a duty to your principal in the case of the captive agent the principle is the insurance company country companies in this case in the case of an independent agent it is actually the client the insured because it is that person that they are serving they are going out into the market to find them the best insurance and in doing this that's why we ha that dichotomy well established in the case law also they would have been aware that under common law insurance producer is used anonymously with the term insurance broker so the appellate court disregard all of that they also disregard the rule that statutes will not be interpreted to effect a change in the law a subtle body unless the terms of that statute there really requires art instruction what has happened here is a complete change of what was and like and by doing this without even considering the outcome and looking at what the intent was there imposing new liabilities and if that's the case she would have to strictly construe the statute under the case law would also have to give effect to the minimal amount of change in the common law that wasn't done with the fourth district's interpretation the vast of common law there is no clear language indicating his was intended there's no legislative history indicating this is intended not only is this a departure from the law as to the brokers and agents but also for asian sealock basic principle of agency law states that an agent breach of the duty owed to the principal cannot be an independent basis for the agent's tort liability to a third party the fourth district's decision essentially does that what's important is that section two dash twenty two can be reasonably interpreted by the common law you can look at it as preserving the common law judy for ropers who under the common law were all independent agents were insurance producers and say that it is keeping that duty in place their ordinary care in procuring renewing insurance and then doing what the statute was intended to do to limit liability in the fiduciary relationship to the cases of misappropriation of premiums and the language in the statute does show that they're affecting that change and there's clearly we're saying we're limiting the liability in these videos sherrie duty relationship the legislative history doesn't support the court's interpretation either party when when do the legislature adopt this new term insurance producing well the definition section of the insurance code where insurance producer came about did not exist until two thousand and one per public act ninety two dash three eighty six so that was after the insurance place liability act was written so that wasn't then the legislature's mind when they were coming up with the statute when we doing when they amended the insurance co well you could say that that therefore that you would need to have an implication in there that you are trying to make a change with the insurance placement liability act you're looking at  liability there is nothing in the insurance co if that's truly what their intent was they could have made that change in the insurance co and there is nothing in the insurance code that would do that the broad application  this just turns everything out on the head and we need to look at what the legislature was intending at that time it's not up to the court to say hey you know what we're going to change this this is what we think it should be just because the legislature wrote the insurance code that way too broadly regulate insurance sales and the like which is a completely different purpose and civil liability we can't say that that was their attack there would have to be again that their language showing we making a drastic apart from the common law it's not present in the insurance placement liability that plaintiff said well if we don't have the duty under section two gas twenty two one there's no remedy to a party who has something happen and that's not the case you certainly have action through that insurance company remember that a captive agent is an agent of the insurance company they have those limitations through the insurance company that is that individual's principle and that's to whom they're responding that's why there is action that remains against the insurance company there are still actions that can exist against and insurance captivation as well in that particular situation there are a couple cases and basically it is limited to the situation where captive agent i am saying to you after you complete an application i will submit this to my insurance company and they will make a decision if i don't turn in your application for example say life insurance and i've got a binder in there and i've accepted your check and then i just said i then there would be a cause of action but the plaintiff is not without a cause of action here that is something to remember we are dealing with a captive agent who has a duty to its insurance company to say that we've got a different intent here and we're radically altering the common law standards and liabilities there needs to be clear and convincing evidence of the specific legislative intent to do so  there is nothing nothing in the legislative history there's no mention of an intent to it's a spam liability of insurance salespeople in any fashion there's no hint that it's designed to eliminate this distinction between captivate gens and the brokers the expressed intent is actually to preserve the current negligence by ability not expand it and again that's for brokers and notably duty liability because the case law in and up to that point as far as brokers was turning up to do shiri duty cases and they're now that we're saying we're going to limit that to the situation misappropriation but you may still bring negligence claims against these individuals his thought indicates that when the meaning of a statute is not clearly expressed in the statutory language the court can look beyond the statutory language to consider the purpose behind the should avoid construction that would lead to an absurd result and the appellate court's decision does lead to an absurd result the appellate court's interpretation would be that section twenty two to dash twenty two or one would relieve the captive age independent agents association and the independent agency again or brokers obviously they are putting forth legislation their intent is going to be limiting their liability not broadly overturning the entire in industry and expanding liability to get to all of those things that are not in the statute that you've been talking about we would have to first find that the statute is somebody you correct and if we look at the section of the insurance code five hundred  the definition to dash twenty two a one of the code civil procedure we could say it's clear even though that may not be what the legislature that correct then you're already going outside the statute your honor and in order to go outside this particular statute the code of civil procedure and look to the insurance co we've got to have that ambiguity when you're looking outside the statute itself saying because the code of civil procedure does not sure that's correct your honor and and there certainly is ambiguity because as this court has recognized a statute is ambiguous when it's capable of being understood by reasonably well informed persons and sure more different senses that's warranting consideration of other sources to ascertain the legislative intent obviously we can have two or more sources because we have all of the appellate cases and then the fourth this tricks interpretation in terms of the negative consequences i didn't want to touch up because this is violating common law and public policy that it's the insurance duty to review their insurance policy to make sure they've got adequate coverage to notify their insurer insurance company of any discrepancy if this change goes into place as the fourth district has if it stands that induce insurance to just simply say i'm going out for the coverage i want by paying my cheap this premiums not looking at what my coverage is sitting and till i have a claim and then along the whole that's not covered and then go after the insurance captive agent for liability and the nielsen versus united services automobile association recognized that problem with such an interpretation the other problem is that the captive agents are bound by those contractual agreements that i remember referenced they are only to sell their own companies insurance whereas brokers can offer insurance for m court's interpretation the captivation could be found liable for failing to offer insurance from another company so my country company's agent who can only sell country companies if an insured would have had coverage say under a policy from geico then they could bring a claim against my hand under this interpretation that simply yields and ab's service result and even extending that that you would have respond yet superior liability for country companies because of the agent for my client not selling guy co insurance to someone it simply can't be that hates and that does show that you're that's not but that's not the theory in this case you know you're right here is not i asked them to get me the best price and they gave me this one cup and they could have given me a different thing that's not the nature of the negligence of being alleged here that's correct your honor it's not but that would be ultimately what was your results from the fourth district interpretation if you use the plain language that this creates the duty established under section twenty two or one that they are saying you apply to a captive agent that is exactly what you would have as an outcome from those breach of duty  please the court house or stanley freeman on behalf of country casualty insurance company i have just a few comments to make as the court will note my briefs mission was very brief and i i do adopt the arguments just by counsel for the stars and i don't want to beat the proverbial dead horse i'm going to keep my comments brief or than i initially intended the one thing i want to make clear is that the statute as interpreted and applied a fourth district court imposes liability on better product insurance coverage at a cheaper price through the agency relationship by eliminating that protection or that that relationship or altering in this fashion you're exposing the interest liability  because the insurers under a brokerage or independent agent relationship there's never going to be that liability to the insurer under this statute it just stops with ault's that could follow the fourth district's appellate decision in this case for a minute i personally don't think those are what we are alleging that the court district's interpretation is that i don't think those would not it's still the same facts are that an insurer as requested a coverage from an agent and insurance policy discussed it anticipate it and then it just doesn't get done agent makes  asked for them to be covered under his policy they were going to be married in july of two thousand and nine he wanted them to be covered as though they had the household benefits and everything would be as so would be smooth when they got married she was driving his vehicles and they wanted that coverage because he's in the hospital for the weekend and then they learned more bad news the apple driver only had a twenty or twenty five thousand dollars policy but they fully save it ask valerie and jonathan be added to his policy only to learn later that because mr   you know picking the lowest premiums and then getting mad when there's a lot of coverage later or later on when there's an accident that's not bad because there were never been any evidence that you requested the it's a coverage for example i think that i think that came up very clearly in a none of them really touch on their all other sorts of duties there's not a request there's an assumption that a set of areas were still that our policy or or a reception that you would have added more assurance i told you i was driving the car to haul freight should have had more than fifty things you've just commented on be in other cases the duty of care that was not provided in that particular case all those other cases were situations where the court held that there was no duty that a duty to maybe advise about insurance needs or inquire about specific needs more of a consulting but a fiduciary type relationship where your consulting with me about my business will make sure it stays that that's not what happens if you're seeing your case could be used for the parade of horribles it was listed by opposing counsel mainly namely that the camp division should recommend that another agent or another company's policy that's exactly what i'm suggesting let's say in this case we are now  were if they had requested the worker's comp a service and it just not been filed with everything else or not been filled out right but i think that case will come out differently that is reform out some way to have a fourth district case about today's case there was definitions those two statutes use the word insurance producer as opposed to specifying a broker or an agent or making any distinction whatsoever is a statement by the legislature that practically speaking the public interacts with these individuals in similar w you open a phone book for insurance agent you go talk to you ask for coverage and you work with them in some circumstances we've got a business or something it's more involved in there that's when fiduciary issues come in but what i think emmett is great mention that there are thousands or maybe millions of these kind of transactions every year and we don't have a just all sorts of liabilities for these transactions and i think that fact can be taken the other way you have millions of individuals citizens the state of illinois rely on insurance agents that simply do their job of providing the coverage that they request and if you get a small percentage big mistake you've got dozens or hundreds of citizens left holding the bag because they don't understand a fine distinction in the policy or exactly how the declaration page was read and i've think that case goes to show that the theory provided by the well is here that there is no duty besides this one was never the law i think this common law distinction that an agent never owes has a duty to be assured is plainly procuring binding or placing coverage requested or by the insurer proposed insured it's going to apply to everything that's happening when you're dealing with an insured fact of the matter is in this particular case we do have to accept the plaid but one thing that is left out is the plaintiff's girlfriend was driving his car and then she was in a car accident and country said ok we're going to cover it this time but we need to add her as an additional driver for coverage to happen in the future so country actually adds that change the changes may now his point as well my guy doesn't know that he doesn't understand these things then it is his client's obligation under the law to pick up the phone in context someone say hey don't understand this none of that ever happened the situations again with those cases when we are dealing with the fiduciary duty in the case the plaintiff is bringing up that duty is owed by that insurance agent is going to the client they are looking at what is the best interest for the client when you have an independent agent that is what is anticipated and suspected by and insured when am going to country companies and the body looks in the phone book they know they're going to get country companies insurance you know he brings up the situation we says well my client when nance forgot co insurance he would say why can't sell that cheap i get that court district dead for plaintiff counsel to say that we don't need to say that there is ambiguity and if we interpret the statutes together again i rely on that argument the plain language isn't there we need to look outside the statute and we need to look at the intention what we are talking about with section two dash twenty two i want to say that the legislature was well aware of what it was doing in one nine hundred ninety seven based on a definition that didn't occur until two thousand and one can't be the case this expression insurance produce note that is the guess that would have been from this actually yes for the definition and the first time it was defined within the insurance code subsequently so the genesis and i don't know if it was contained in other particular sources i because the fact that this matter has been argued in briefs twice that's never come up so i believe that the only places that we see it are in this particular statute and in the insurance co so  essentially yes because in last i don't submit my application where it comes into play that is your relationship as an insured with your insurance company that's where you have your liability because that is the principle with him you mention public policy so the public policy is such that well in this case very well i want to additional named insured allegedly the agent does not so they still have that relief available they're not without a remedy for the situation it's just against my particular client as opposed to the insurance company the outcome if this is interpreted the way that the public court interpreted it will require an overhaul of the entire insurance industry we right now have the captive insurance relationships that were described by mr freeman there are many insurance companies that do it that way because again it's money saving they find it efficient there are some benefits to it insured by doing that because you have one person you go to all your assurances from country you get one paper you know that has everything you've got on it as opposed to having several different sources if we interpret twenty to a one the way that the fourth district dead and create that ordinary care duty across the board that relationship can't stand because again you have that inherent conflict of interest between a captive agent and his insurance company with whom he adds an agency where they can check and then now having a duty to an insured or even prospective insured the fact of the matter is to no matter what happens if we have this were near a duty of care if an insured isn't getting the coverage here she wants they're going to find a way to make a claim and say that the the agent made and stay if we have this option available so to say in this particular scenario it's going to be ok it's different than other scenarios that's not going to be the case this truly will open the floodgates because the only basis for the duty there exists in the broker situation room correct generally only difference is  t the broker represents a number of insurance companies and captive to one insurance company yes but then the difference your honor is i am going into that relationship knowing that i am seeking you out as my insurance agent as an independent agent i'm going to you because you can go to a bunch of different places and you're going to be able to find which company has the best insurance for me your client there is the difference as opposed to when i go to country companies and i'm getting homeowners insurance i know that you're going to offer you a country companies have there's the difference in the expectations of the insured that are going to be different when you're dealing with the captive or says independent agents are there any renders other sections of the statutes or passage it contradicts longstanding base law it's not supported by the legislative history it has adverse public policy effects this court should reverse the appellate court's decision and find that there is no duty under section two dash twenty two a one on the part of the captive agent and then if the legislature feels that it is necessary to enact that duty on behalf of the captive agent the legislature can clearly enact legislation so doing thank you