this very court specifically justice tice waiting for the court handed down its opinion in what parties have referred to in their briefs as choke want the first appeal between of this very case between the chicago hospital risk pooling program and what i would refer to as it's me this court very clearly held that notwithstanding chirps status as a not for profit risk pooling program it was nevertheless subject to the traditional common want duties of a traditional commercial insurance company among those duties specifically at issue in this case was that should have been the near end of this case because that was really the seminal issue involved whether church could or could not be subject to the target tender rule and in fact this if your honor if justice tice might remember oh i remember right this case came up on appeal on a three o eight certification were chirrup agreed with this made the parties agree jointly that  i mean to complete with a new with with the new factual predicate which was immediately after remained sharp totally reversed fields said please forget everything we said about us pain th settlement under a primary policy it's just dawned on us i don't know what the explanation is a but two thirds of that settlement in actuality was paid under net and access policy now this is the first time this revelation has come to light warning half years after the settlement four years after the initiation of this lawsuit by church now we've never heard an explanation from chuck never in the eight years th amended complaint had been filed and never heard a single explanation for why it had to what happened to change why didn't they realize that they they paid it under an excess policy to begin with and if we hear an explanation this morning i submit it will be the very first time that we hear an explanation but we don't really need an explanation because the reason is obvious this is nothing this is amended complaint with the new factual allegation settlement was paid under the access policy is nothing more than an attempted end run around your honour's opinion and chirp want an attempt to a state to escape the target tender to stop a w equitably towards each other and i think that's the best best that i can answer  all of these factual and legal issues and there's quite a few as your honor has indicated is i think a very basic issue which i would submit needs to be resolved by this court do what it did can it allege for four years in litigation that it paid under a primary policy get an adverse ruling on target tender from this court go back and reverse fields and allege something completely different that no one had any inkling of that they never advised this meat rights ensured of at the time of the settlement or at any time thereafter setting aside issues of men the hold back with full stop all those types of things i would submit that the answer is very clearly no sure cannot do this because of what the supreme court said in home insurance for since cincinnati at the policy the court said and insurers failure to advise another insurer at the time of settlement that funds are being paid under an excess policy is waiver of any claim for reimbursement under that policy so we are paying some of this settlement out of an excess policy so be aware ist me because you're remedies may not be what you think they are you may not help out a defense to target tender there's a reason that the supreme court has set down the rule in home versus cincinnati that ensures a co insurance needs to advise its other the other cohen sure about the payment under  excess policy so i've gotten a little bit ahead of myself in terms of that specific issue and since my time is short i thought perhaps what would be of most benefit to the court is is if i just touched a little bit on the facts of what brings us here today because i would submit that the law is very clear there's i don't think that there's a there's a lot of novel legal issues here i think however the facts go back ten eleven years and i would like to discuss those just briefly this lawsuit was brought by church against me seeking to recover initially one half of the payment it made on behalf of  cohen shirt cohen sure dr bell the seda chirps allege for the first four years in that lawsuit that it's payment was made under its primary policy and it wanted under the theory of equitable contribution one half of that back five hundred thousand dollars  eventual church amended its complaint after the church one opinion to allege that the payment was actually made under an excess policy and want an increased its demand it's a damn them to  to two thirds of a million yes there are a number of reasons we contend that the trial court was in error in entering summary judgment in that amount but let me touch on the facts one for long called that immediately and this is uncontroverted after being served with the summons and complaint dr by the seda tendered his defense to choke choke denied the tender by claiming it was accessed only accessed by coincidence when it the other insurance clauses were compared and told doctors by the say that in writing in no uncertain terms that he had to turn to its me as his only line of defense here ten days later only ten days later this court issued the p d f opinion which was almost identical and it certainly residental in terms of other insurance clauses and in that case the court said that the these are in defend is found in the church policy the troop policy was written by chirp obviously it is construed against short paragraph five point one nine of the policy state shall provide a list of approved attorneys or law firms from which each participating hospital shall select one attorney or law firm so listed as to serve as primary defined defense counsel to set hospital there are covered person additionally if you think about vicarious liability how can choke defend a hospital if even if you construe it as a brick and mortar hospital a corporate entity and none of its agent the nurses here saying they're covered persons and only a default judgment entered against that would be nurses go without a defense default judgement entered against the nurses and forcible against the hospital how is that defending the hospital so i would have to go back and look but i don't know that there was an individual act of there was no allegation in the rivera case that the hospital support of management somehow you know adequately staff delivery room or anything like that it was all like arius liability as i recall although obviously wasn't involved in the case i would also state that on that point the justice department raises about you cannot defend a hospital without defending the agent and a case of vicarious liability the american family point getting back to the facts chirrup repeatedly denied the tender of defense target tender even though it knew it was wrong and there's unequivocal no doubt about that their own claims person said yeah i had an obligation to withdraw an inaccurate declamation letter but i can't remember if i knew about the padilla case or not i would submit that the church would be charged with institutional knowledge of the fiftieth case in as much as they were a party to it eventually dr paul the seder was first to file a declaratory judgment against church in it he said quite clearly i want and it's me if the settlement would have been in excess of chirps i would submit three million dollars primary limits and in excess of its excess policy then if it's me chose to do that they could come in and participate in a settlement if that's what it would have if in their judgment that's what that was the reasonable thing to do and that would have been consistent with dr paul's status which is the doc they cannot act contrary to numerous more than two does he ever say he was involved in the settlement of the rebel case and the case law we cited so that says that it's all well and good that he's the trust administrator but if he because his affidavit in our judgment was inadequate insufficient under one ninety one on its face we asked for all affidavit or all documents and under one ninety one he has to attach to a stop his affidavit all documents upon which he relies to to say this is the way the settlement was allocated i have attached correspondence from chirps attorneys where they say there are going to arguments other than the claim file are if there is no allocation there is one million dollars apiece for each of the three the personal injury case is allocated two million two and a quarter million the wrongful death cases is allocated seven hundred fifty thousand but there's no specific allocation to d that we don't know if he was allocated a dollar or seven hundred forty nine thousand four d for a wrongful death case why is that important while the evidence in the case shows that unfortunately the deceiving to was most likely expired before dr ball the state was ever called into this case prejudices at there's a reason for allegations there's a reason and that is it enough for example in this case to challenge the settlement can't challenge it we don't know how much was allocated for him we can't we can't challenge it so there have been prejudiced in that regard acts provision in the cases that we cited in the briefs whose names i can't recall at this point but there it you're out of raises a very good point there was clearly more than trump says that its occurrence definition there is a single occurrence available when multiple chirp insurers are participating in the same service or activity causes particularly in medical malpractise cases so what parts we take can we do well let's let's just look at the language same service or activity and i'll make the point that i made in the briefs if the same service or activity is construed to include not only labor services as the nurses provided but also delivery service says as dr night when provided he didn't provide any labor services labor and delivery are two separate services all right if you construed if you construe this to say that doctors who provide who practice under these under these set of professional rules and standards of care and nurses who  provide nursing care cannot practice medicine under law are providing the same service or activity then i think we have a problem in construction i don't think that legally doctors and nurses particularly under these facts where they were not from the time that mrs rivera comes into the hospital let's say she has a long labor or difficult course and it goes on for weeks and she's seen by multiple doctors in multiple special and chirp comes out and we have a similar situation and chirp comes in and says we only had a million dollars we only had a million dollars because all of these doctors were providing hospital care and that's our same service or activity i don't i don't think you can read it that broadly respectfully i don't think you can read it as broadly as to say labor and delivery are the same service or activity that some of us some allegations go to treatment of the babies some allegations go to treatment of mrs rivera there they are clearly not the same surface arc tippity there was a single there were multiple causes alleged here and multiple occurrences a minimum of three access policy did not have to pay and if it did it paid as a volunteer we're going to give you some time ok thank you very much thank you please the court rebecca holler on behalf of chicago hospital risk pooling program i'm here today to talk talk to this court about why the trial court was correct and ruling in chirps favor seeks a recovery of six hundred sixty six thousand six hundred sixty six but say two thirds under is the second it doesn't it doesn't really you're third in line for the amounts that were paid under the excess trust which was six contribution claim it was is me a primary carrier sure primary trust shares equally to one lay down relating play shares they share dollar for dollar up to three hundred thirty three thousand which was the limit thousand therefore you ask the court to enter judgment and they have a three hundred thirty three thousand dollars as to actual contribution under equitable contributions since you have two primary one the primary trust one's primary policy they share dollar for dollar until one of the let one of the limits are exhausted so under the chair primary trust there is only three hundred thirty three thousand dollars so under the eco contribution theory under padilla chervin is made would share dollar for dollar so they would each pay three hundred thirty three thousand dollars and that would total six hundred sixty six thousand dollars so then why are you asking for so then would you be asking for three hundred three thousand dollars from the excess that's how the second a primary and trip is not contesting that it agrees that it owes three hundred thirty three thousand under the chair primary policy the way it applied to dia is it paid it's thirty three hundred thirty three thousand it's me should have paid it's three hundred thirty three thousand five u s for five hundred thousand dollars because i mean if it works for twenty five and you're discussing actual contribution you say that therefore it's me and served should share equally in liability which would mean chirp five hundred thousand dollars if this court were to find that there were multiple limits available under the church trust agreement which church primary trust agreement which we do look really cool services each one providing a different service with your policy would be a million remove home insurance when you look at the facts of home you have two primary carriers one carrier policy contained a excess other insurance clause however at no time during the course of the underlying litigation or during the settlement discusses the discussions did that carrier which i believe was home ever advise the other carrier or the insure implicated until both teacher primary coverage as well as this because bridge was was exhausted so from early on in the litigation dr bell the state as well as its me was aware of the two different trusts one was a p access trust one was the primary and home versus cincinnati that information as far as home taking the position that it was access never came out until the litigation so we're a inconsistent as forms in the original question remember in the original complaint it does set forth how much was paid for the entire sum of three million was paid for the entire of aristotle meant that a million dollars on behalf of at the time the contribution claim was filed there was a significant issue regarding the rights and obligations under a trust whether or not it was subject to a selective tender doctrine which really was an important issue to guide the rest of the the litigation as well as whether or not church as a trustee could pursue equitable theories such as those that are that other carriers are able to pursue those so those are core issues that needed to be decided  was multiple occurrences we disagreed with that but the equitable contribution count avoided the need to even have to deal with the issues of how many occurences litigation could have been very streamlined and resolve probably early on however there turned out to be additional issues that needed to be pursued at that time it's an earth church chose to amend its complaint to assert both the equitable contribution if its me was correct and how many limits were or available as well as the equitable subrogation count based on how cherrypick had allocated the the limits to under the primary policy as well as limits under the access policy order in order to gree service and so you're you're you have a woman who presents in labor what she's complaining about in her complaint is the fact that they don't recognize the signs early signs of distress during her labor they didn't deliver the babies soon enough or the bab soon enough so it's the care and treatment of the mother in the labor and delivery of that issue so the fact that there's multiple doctors multiple nurses providing care to ms rivera the complaint allegations against small full defendants including the hospital and in the various acts of negligence there are allegations of failure to have appropriate chinese chain of command there are some of the nurses for let me just try to up the court on this the allegations are against the house i mean the all occasions are that the doctors as well as the nurses were agents of the hospital under the descriptions for negligence it's a laundry list of different negligent activities asserted against the doctors and the hospital as well as the next group is the hospital as well as the nurses to read it first you'll see a hospital and  depends i know separate allegations against the hospital crucial crucial i correct in the laundry list there are allegations that could read as against the hospital as far as chain of you know instituting an appropriate chain of not true access coverage and i think the case law is pretty clear on this i mean can g m i was pretty clear on recognizing that primary coverage is separate and distinct from access coverage here we have a separate trust agreement that provide  its excess over the the primary trust agreement and then the other insurance for vision provides that it is access over all other insurance which is very similar to the to the travellers case which is cited in our brief the one case that is me relies on the federal versus st paul that was very unique language that was before the court that policy the same or soon the federal policy specifically said that it was access only to the st paul policy taking the patrolling to create additional limits or trying to ignore the fact that we have an excess trust to get around equitable subrogation count the facts are undisputed its me does not take issue with the allocation counsel taking the position that liability was equal between the two doctors and then the nurse nurses and hospital as one unit is me or excuse me chirp advised it's me prior to coverage and anything above that would be paid under the access so that was that was made clear early on so when there's a three million dollars settlement one million repaid under the primary and two million under the access trip is doing the right thing here settling for the doctor it means being advised every step of the way of what's happening they choose not to question take issue with and they had and they knew that church i mean chip in its letter specifically said we're going to pursue our rights of reimbursement for any amounts that we pay on behalf of dr bell the sida we're going to seek to recover those from it's me so it's me was put on notice so if they had questions regarding the allocation they needed to raise those or if they wanted further clarification they needed to raise those they didn't so it's so true proceeded to settle the dispersement certificate show that one million is paid under the primary trust two million is paid under the access trust mr scott it doesn't to do what it's me says it could have done and allocate the full million dollars to a single insured what is or what chip does is allocate equally it allocated liability equally it's allocating its limits equally between the three was required to do with that way now that a carrier is required to act in good faith and not favor one insured over another so if dollars on behalf of norwegian hospital it's me would really be screaming about how an equitable that was and and chip was really trying to do the right thing out liability was allocated equally it allocated its limits equally and  deemed to to be knowledgeable on those you have the trust and ministre her attesting to the fact of of the allocation it's me relies on a memo that actually that is going through the liabilities of the  deposition of mr skirted so that those issues are all clarified in it's me is mine it chooses to try to strike the affidavit so they can avoid avoid the the facts that are clearly stated in the affidavit and we believe that the contractual duty to defend doctors or other covered persons besides the hospital i know it's me goes through numerous provisions within the trust agreement trying to create some sort of duty to defend the provisions that they point to w e go through in our brief so i don't want to go into too much detail but the provisions like five point one eight that that it's me pointed to that such for if it is or if chirp is providing a defense who is going church there was no duty for chip to step in and defend and that's really where this equitable contribution claim there needs to be contractual duties to defend under both contracts in order to give it's me the right to seek contribution from from church there was no contractual obligation under the the church trust agreement so it's me while it attempts to try to imply a contractual in is just not there and that's where we think that the circuit court eared in looking at five point one eight to imply a duty to defend when it doesn't exist and i and i would just point out to the court to enter a case that it's me sites to add situation the insurer would want to defend but it also noted that it didn't have to address that issue because they found an exclusion applied so it never got to that issue shapiro directly says that when insured is actually defined then that's  is having a good one million dollar primary liability and that they have access policy on once they tell you here if they say they paid over three million dollars i'll could you come to any never said that it is paying the settlement under an excess policy and i would encourage the court things are going your bones wrong she tells us that early on curry were advised the leeward the there was only one million dollars a primary and policy so it and it never alert they never alerted its me that any money was would ever be paid under an access policy so in terms of mr being able to create allocations that were not can not done at the time of the settlement it's interesting to note that catherine allen was the claims person on this file and katherine allen was deposed in the first four years of this case before the allegations changed before church run and she was in fact represented by churches attorneys she lives in the area she has knowledge she did not fi created ten years after the settlement in response to a defense that it a defend an insurer in a equitable subrogation case raises i think we open a pandora's box  the whole it's the issues on the duty to the fact the duty to defied a couple of things at page seventy three of the record is a request to admit answered by church in this case and i asked her tell me in your history have you ever ever denied a d a defense based on the reasoning that your trust agreement does not contain a duty to defend the answer is no we never have ok never have and in fact they didn't do so with dr ball to say that when they mate the night his defense three times three times in writing they never said we don't have a duty under our trust agreed we only defend hospitals they never said that they only said that in if they believe it to be true if it's a basis for denying coverage we don't have an obligation to defend you they never said that and what they said was when we look at the policies the other insurance clauses we  access to it's me and they said that even though the padilla case they knew they were wrong they knew they were unequivocally there's no getting around that fact one other point on the duty to defend the term hospital is used and i would submit it has to be as justice hofmann has indicated has to be read so broadly as to include the hospital's agents covered persons because when the trust agreement talks about settlement obligations settlement procedures indemnity drop legations it talks about the hospital so using troops logic since covered it's me you've got no remedy here you've got to have is me defend you chirrup rejected his his tender three times when they knew it to be wrong case law says that those defense obligations are allowed only recovery of one half of those costs so in summary we would ask that this court reverse the summary judgment in chirps favor remand the case with the rections to enter summary judgment in its nice favor