actual facts that we've presented to the court there really is no way to find an equitable apportionment in this case magic that is really the heart of the issue on appeal you haven't seen this case involves a young man who was driving his is the case for you know for all we know yes gibson won the lottery sometime before this case or you know whatever the facts we have no idea what his assets are the only thing we know is the representation of counsel that this is exhaust the limits of an insurance vs united everyone all that needs to be considered and weighed and in this case the evidence is again quite clear that even his lightly given his his degree of fault the fifty thousand dollars favoring some and the public policy favoring equitable portion so that we have the trial court has to as we go in the same sit there and weigh those two things to say what is reasonable here i don't want to stop a settlement if there is one that's going forward it should go right off the bat i'd like to say that there has been a lot of argument there been a lot of cases cited but there really is no authority for what the defendant would like you to hold but for instance there is no  ity in the state of illinois for the proposition that a defendant who goes ahead and offers the limits of his not ability is not entitled to a good faith someone there just is no case like that in illinois there is no case in illinois that says that it says that it is not a good faith finding there cannot be a good faith finding where there is not an evidentiary hearing on rather to on the relative capability of the defendants where the settling defendant has offered his limits of liability there is nothing like this really doesn't appear to be some showing on the part of the party moving fruit it would be finding that this is a read a portion of my fall represents or read a portion also that you know that it's not you're not one of the parties in the group it's donald trump he's got millions or billions or whatever whether they're leveraged and i was another matter but let's see warren buffett let's pick warren buffett he's warren buffett's the party and he's paying his limits everybody would say wait a minute you're not paying your program share and you sure sure and i agree with the court ok on the other hand it's my professional responsibility to make sure that he's not warren buffet or is not donald trump and this seventeen year old boy who was in high school at the time who was  driving his mother's one nine hundred seventy seven whatever is not donald trump and frankly when they asked for iraq to tory's when they asked what they didn't ask for in iraq twice they just asked for discovery and the only discovery request that they made was to see whether that jeff gibson was donald trump well first reza my responsibility to make sure that that we get what we can get and what mr gibson had was one hundred fifty thousand actually had a three hundred thousand dollar other question that does a quick have some responsibility to go ahead and see this yes the court does certainly and i believe that the court did in this particular case did to the court exercise discretion absolutely the court exercise discretion no no doubt about that in one way  t up that the defendant as you said is that he did not even consider the relative cup abilities of the party i think the test just totally false it as a matter of fact if you go ahead and you look at the transcript i think that what judge hogan said was he thought that he would have some difficulty and in comparing the two different theories of liability the one theory was of course that gibson was the driver and the other theory was that the defendant had created this dangerous division negligence  true or is it true i don't know the answer i mean in terms of the cases and if there is no case on this where if a party represents to the court as you know office or the court you certainly are judge i've looked into it there is think that the supreme court in the johnson case said that they could accept that the court could accept representation of counsel on a number of different issues because in that particular case the defendant also made a request for an evidentiary hearing and the court said and i and i know it's to find out whether it was and i would say right of that my willingness to go ahead and settle for fifty thousand dollars against a driver the car implicit within that agreement a person within that offer is proof that i'm convinced that there is no other further money there ok but isn't there a difference finding i don't need to have you take discovery i don't need to have an evidence rehearing i'm exercising my discretion in refusing to do that that's different than saying i don't have the authority to do it well up yes it is different no question about it  authority to go ahead and ask for an evidentiary hearing on this that or the other thing he probably did have that authority to go ahead and do that on the other hand i think you have to go ahead and look at the johnson opinion and that is what the supreme court has said about this particular issue and what they page thirty five is that he did not believe that he had the discretion to go forward with an evidentiary hearing i agree with that but he that's that's what he said he believed he didn't have the discretion to do that but the defendant takes that very important step further when the defendant says he did not consider the evidence that he had in front of him judge hogan never said that he never said that at all he didn't say i'm not going to consider anything i'm not going to go ahead and make my own conclusions on this matter i think that tell you go to a certain extent you could say that judge triggers a little bit blindsided on this i mean remember there was no motion for an evidentiary hearing there was no proposed in or out of tory or deposition that they wanted to go ahead and take all that mentioned in the in the hearing in the transcript of the hearing was that they thought that maybe this jeff jeff gibson was down the trail and that was it and then they asked for an evidentiary hearing and judge hogan said i don't think i have the authority for eleven and sure hearing now this he had the  authority for evidential hearing conceptually academically i would disagree with you your honor but i but i would also say this i think what he said in there is he's never heard of an evidentiary hearing in cook county and this i haven't either i've been around for thirty years because some issues were some of it of the research and some were in debts are so important because you know when there is a finding eventually they have to know how much of it is available for set off there was more issue with regard to set off in this particular case there's a liquidated amount and there and that that was never a request not it i didn't see that in c n c and frankly that is the only case that i have found in which an evidentiary hearing where as requested by the motion for summary judgment and a test rather affidavits and made all the arguments i mean if you think you've seen all the facts of the case and judge hogan was fully aware of all the facts of the case i think when he talked about product liability i think he was perhaps talking specifically about the guardrail to the curb because there were specific allegations with regard to the guardrail so could he have yes does that mean that he didn't exercise his discretion in the case absolutely not and there is no ok then you get into the situation that the that the appellate court went into in or that the proper and into a new order where you had settlements before hand and then you had the jury that made specific findings with regard to proportions of  afterwards so let's let's let's to happen if the judge makes this his ruling or her ruling and then the jury makes its ruling and that and they're completely different as the court said you know there's a settlement value and then there's a then there's a verdict value would just like to say one other thing with regard to the issue of fault here and i believe mr rhesus is going to talk a little bit about this too but you know we have heard and we have read that oh mr gibson is the one who is really at fault here and the the apartment complex really isn't well ten or so years before this happened a person lost his life in that retention pond when he went off that curb at exactly the same spot they knew that that was a killer crime that it had the potential to kill it didn't kill it had the potential to kill again gibson didn't know that this was just tried with a couple of friends after school and in bad and making a turn under snow today he had no idea w read and the car went right through it at that what the different the different estimates of speed were eight to eighteen miles an hour and the guardrail went right through it and that's really our case and that's also in the file at that is not you don't put up  good guardrail and you don't put it up in the fashion that you put out you get a professional in there to go ahead and do that do the job right and if they would have done that it would've kept the con the road to change the kind where the road such as the contour of the road or change the slope of the of the the hill or change the first the parties made a preliminary showing at the hearing that the settlement was in good faith the release of four could use a legally valid settlement agreement that was supported by valid consideration in the form of mutual promises by gi insurer all stayed to pay fifty thousand dollars exchange for plaintiff's release of gibson from liability there is no claim of fraud or conclusion as those terms are typically used in the case law and there is no term of the settlement that violated the contribution and now we've heard a lot today about the question of whether the judge was exercising discretion or belief that he had no discretion the judge was very familiar with the standard to review depositions of the parties of the experts there is no lack of evidence as fought all the information available to the judge at the time he made his ruling i want to go to the transcript because there's been something said this morning about what the judge was doing when he said he had no authority he was talking about two specific arguments if they were making first they were talking about how they wanted to have an asset discovery discovery beyond the insurance policy that was available to jeff gibson it was really i think his mother's policy because he was driving her vehicle well we believe that there is no authority for asset discovery beyond the insurance policy we cited in the i know bri policy why because insurance policy specifically purchased to satisfy a real liability we disclose the insurance policy we disclose the only insurance policy there was a village if gibson and we paid the most that was or determination of fall and all the charges saying ok he's saying first of all this penetrates the prevailing practice which i think everybody knows in this courtroom that it's contrary to the prevailing practice b of one experience is that he is next going to be a fix finder this hearing is to decide whether in that a settlement was in good faith it's not to decide who's more responsible it's not to decide who has the ability to pay and judgment it's not to decide whether the whether the insurance policy sufficient to satisfy a possible judgement or probable recovery that's not the purpose of the hearing collusion all that's happening is that  is you know what jeff i'm not going to let you out of the case unless you give me an affidavit or unless i have some other satisfaction that you're not warren buffett you're not a you know a you're one point with a silver spoon in your mouth or the money has been paid the trial court had the authority to control its docket it had the authority to decide how to conduct a hearing it had the authority to decide to hear the motion for good faith finding the head of their motion judgment judge hogan properly exercised just discretion again he was nesting that he didn't have he was not saying that he didn't have discretion except with respect to two of their proper elo cation because some of the claims were subject to contributions other claims for not right here i think it's been pointed out we've got negligence against us we've got negligence against them we're rolling descended there's nothing to allocate there's nothing the benefit of a set off to the tune of one hundred fifty thousand dollars one hundred from the parents fifty from someone on behalf of just gibson they also have the sole proximate cause defense they can get to trial if they want prejudiced by the settlement alone they get to raise whatever defenses they had as far as what proximate cause and they'll get to set off unlike the stick which situation you remember in stick where there was a worker's compensation liability that was being reduced and there's a question as to whether or not the non selling party was really getting a settlement they're getting the full benefit of the set off here when they say that they have some rights to civil liability going to say that this appeal would never have been brought and we wouldn't be here today this appears does nothing more than an attempt by a none someone party to go around re by trying to keep a simple party on the phone with form after his settlement with the plaintiff and for the policy element on this record we submit that the trial court knew it had discretion the parties had argued they had in the submissions the submissions were extensive as far as the of the testimony of the parties in the witnesses and we ask you to  could apportion damages  with respect to plaintiff's arguments as to up were few and raymond's reported liability those arguments are waived a waiver is not simply you know a matter of what was raised in the trial court but also what was in their reply in support of jeff gibson's petition but that play was never considered by judge hogan we challenged plaintiff standing to present that reply at the hearing before judge hogan and judge hogan said well you know i've never received it i'm not considering it anyway that he might not be one hundred percent the proximate cause that he might not be the sole proximate cause it makes no difference in terms of the equitable portion and if he's ninety five percent of the proximate cause