this court looked at choice ron two cases in two thousand seven thousand versus sears roebuck and barbara sales versus and in what the court said in the barber sales case is that illinois courts should not be burdened with the application of foreign law unless the circumstances really warranted in townsend what the court said is a choice of law determination is required only when a difference in law will make a difference in the outcome what this case today is about is whether the court really meant it when it said that untalented because this case really distills the question of do we need a difference in law we have a circumstance where this court has ruled squarely on the coverage issues presented in this case it did so in two thousand and six in a case called  valley forge insurance versus white or ski and in so doing he explicitly rejected a prediction of illinois law that was made by the seventh circuit court of appeals that prediction in a case called american state's insurance company versus jackson and capital associates was the source of three lower federal trial court opinions  an insurance company in this state arguing that american states is the law of the land on the pretext that there is something about the trial court decisions big is indicative of indiana law and thus there is an actual conflict of law between illinois and indiana on the question of the first district is held in a case called lyme versus roberts that i don't think is really under challenge but it's the party that seeks to apply a foreign law in illinois courts that bears the burden of proving that a conflict exists and i think th line that holding entirely consistent with what this court said is the principle in barber sales and what we have we have a large insurance company with learn counsel who have spot this issue all the way the chain we have an amicus group of multiple other insurance companies that provided their own brief to help the court and in none of the fifty odd pages of briefing combining the two in this court is a single indiana decision or statute site so in other words what apple e's would argue and what the appellate court held is the you can prove meet your burden to establish an actual conflict of law between states without actually relying on any state law and i would maintain that that approach is entirely inconsistent with what the court said townsend requiring a difference in the law and the better approach is the approach taken by the first district in two thousand and nine in a case called pekin insurance versus x data dealing with the same question of insurance courts and determined that difference in law meant that you needed to actually point to some sort of precedent or some statute of the foreign state  rated court concluded that because the insurer in that case presented like the insurers in this case for three federal trial court decisions none of which discussed to the federal court predictions of the reviews state courts make the law federal courts look at it and review it and many federal court decisions are extremely descriptive about what the state court cases say and to be extent that the analysis of a federal judge is accurate and that we find that be your honour's find them to be accurate then certainly they can be a source of discerning a conflict but the outcome of the federal case has nothing to do with it it's what the actual state law is and here the problem that state farm has a case called auto owners versus harvey which is entirely consistent with how illinois looks at coverage insurance coverage for intentional acts with unintended consequences so i think that to be extent that the insurers argument is well bridgeview wants courts to ignore federal cases that's really not the argument the argument is that the federal cases in their outcome of that in and of themselves are insufficient to create a difference of law simply because they're not law and if that's a point actually that i don't think that there's a whole lot of  controversy over i know that there are a long line of cases from the only courts that say that federal protections of state law are not precedential there are other cases similar we've cited them in the briefing from indiana and quite frankly there are cases out of the federal courts that say that federal district court decisions which is what we're dealing with here are not precedent in those courts either so essentially what we've got is a federal judge following american states in the context of an indiana ensured and the argument but that alone is sufficient to carry the burden that there is an actual difference in law and outcome determinative difference in the law and if that is became a so then i would submit that it's not that different than an advocate their briefing coming up with some detail about the composition say of a supreme court another state or a trend or something else that's not really based on law in arguing in a brief but there is a conflict and if that's sufficient then really the requirement in townsend of an actual conflict i or to even get into the choice of law analysis is ill assorted because you're always going to be able to to meet so the question is we see it before the court although obviously the court will fashion it's the appropriate test but is it what was the first district right in two thousand and nine  end it's also more consistent with two important policies governing the operation of illinois courts the first is the one that was stated and barbara sales stated before in gridley versus state farm which is burden to have to invent another state's law to call the whole cloth which is what the court would have to do in this case and so i task that requires something concrete something precedential an actual in terms of a difference of law in order to get into that possibility i think it's consistent with the policy stated in gridley and barbara sales secondly and this is interesting given what was this in the briefing all the way up none of the courts have breached it but there really is no reason even if we were to accept that there were conflict of law between illinois and indiana there is no reason to depart from illinois law when all of the parties are illinois residents in particular and significantly i know this is been a point of contention just to set the factual record the named insured in this case is an individual by the name of jerry clark jerry clark resides in clark county illinois he has a business that's right over the indiana border called digital healthcare but it's a d b a it's not a legal entity in any way and more importantly it is not the insured entity the insured is mr clark the illinois breast so i would we for sure opposed to this following the pearl precedent or trying to determine is the issue of significant context before us at this point well my understanding is that when you take a case you take all the issues in it and certainly the posture of getting it up here was a cross motions for summary judgment in which we argued both that there was no conflict of law and that illinois i would apply under  significant contacts analysis anyway so i would say that that issue is before your honor is the issue of whether there is in fact a conflict before us or is that something we should address yes absolutely i mean that is the crux of the the briefing in just keeping with the thought if we agree with you on the first issue the conflict the water issue there's no reason to go into the second issue right there would be your position that's correct your honor because my understanding of townsend is without a conflict of law i illinois law applies illinois law is clear and i don't think that state farm is even arguing that there's no coverage under illinois law the only dispute think is in the braves is if we do get to that second issue whether remain for a determination as appropriate or whether we should determine that based on what's before that that's correct and i think that either i the discretion to consider persuasive non binding authority from a sister state's jurisdiction to determine whether an outcome determinative conflict exists so that it is necessary to proceed to the next step in the choice of analysis which would be the most significant contacts test the appellate court in this case correctly held that a potential conflict did in fact exist between indiana and illinois because indiana's federal district court opinions disagree on the issue of the federal district court not being proceed while federal district court opinion is binding non binding persuasive authority is not presidential staff i'm just not take that position it's a fan's argument is that the trial court should have it as its disposal and whatever context of this considering it should have disposal all tools including the ability to consider or have the discretion to consider federal district court opinions which represent non mean the the federal district case serves as a prediction of what would occur and that's the question right whether that production of one state court would find is actually something that would create a conflict and that is sufficient to create a when the first district in stirling found that an uncertainty with it with respect to the application of the scope of the attorney client privilege under new york law that there was uncertainty as to the scope of that application that conflicted with what was established on the law and that was sufficient to create a conflict similarly the third circuit in the pacific employers case has a situation very similar to what we have here which is we have as a state with settled law in that case it  was new york and we had a question unsettled question of law in pennsylvania that court had to make a prediction for purposes of the choice of law analysis to determine whether there was an outcome determinative conflict so that it could then proceed and the terms of conflict right now we have all we have is the federal district court opinions in indiana on their face just like the third district noted the great thing about hypothetical and for the threshold the termination that's sufficient straightened out come to terms of conflict but that doesn't mean that it's that that other states law is going to apply automatically we still have that intermediate step and that's a very important step because that step under  underpinning of the choice of law doctrine which is to ensure that the dispute is governed by this it will be resolved and will have the same results or be resolved the same way under the appropriate law the form with the significant relationship to that dispute and not by the fact that it was filed in a particular form such as in illinois accepting x data would essentially allow again such as bridgeview who are trying to evade the impact of adverse decision simply because xtina allows a truck or actually requires a trial court to ignore the existence of the federal district court opinion simply for purposes of determining whether an outcome determined to conflict exists the term outcome  determinative conflict is very self explanatory would the outcome be different if you were to do with the third circuit did in pacific employers and except for the sake of the choice of law on elsa's only that the outcome in indiana would be different then there is a difference with have to get into what would that law actually be and it's not it could be that the trial court trucker could find that indiana law would not agree with there is some indiana law would not espouse the analysis in the federal district court's opinion but it would be doing that under indiana law and that's what's important we need to make sure to preserve the integrity of the choice of what doctor and that the application of the law is that that of the form that has the most significant relationship and don't you think it's troublesome to decide this issue of the possibility of what the law would be for an outcome determinative decision i mean we don't know what the law would be in india it's only it's only be predicted as justice thomas that isn't a troubling to you that we would decide a case and the possibility of something happening it's more troubling to me to have a truck or have the discretion to look to this with already it's available to it in every other context taken away from it in this specific context to to further illustrate the absurdity that bridges argument presents is that finding that  council in his remarks room said that there were he would need to have some sort of precedent so it's from state to answer your question judge it they would have to be some kind of persuasive precedent even whether or not binding to it inform the on that point what x data does is create a bright line rule which they found was not interested in is having this court simply make the opposite mirror opposite bright line rule what courts should have is the discretion that they enjoy anyway in all contexts and that there should be no difference with how persuasive non binding authority such as a federal district court prediction is treated and that's what x data does though it allows a litigant to avoid the application or the impact the potential impact certainly there is a sliding scale of what would be persuasive what would be binding and the level of persuasiveness that should be accorded for this court to decide the question today there was no need to identify all sources and what relevance or they would have at the threshold determination the question presented here is based on state farm's point it to find federal district court predictions of illinois and indiana law that do have a different outcome we do hear him out a bright line rule as to whether a federal district court predictions of state law would create a potential conflict situation may you mention break one rule to use that you know if we agree with opposing counsel  sources of the state's law and to find that for purposes of the rational determination where that is persuasive non binding even if it's not binding because the emphasis of bridges argument is there is no binding precedent so because there's absence of binding precedent there is no law that cannot be true because we know that those federal district court opinions did resolve actual controversies were not advisory opinions they are not binding they are persuasive and they're indicative of that says regardless of what we do it would be a rule that would allow district courts to have the discretion to consider everything at their disposal that they had before x data and they could once again have effects data were not accepted  igants control over when and if persuasive non binding authority even becomes relevant bridgeview would not be sitting here today making the arguments it's making if the indiana federal district court opinions came down in favor of coverage meaning that they espouse the analysis in valley forge what they would be doing they'd be the first ones to say that there is a false conflict because the result in indiana would be the same as  s so we ply illinois law that is inherently inconsistent because you cannot have federal district court opinions mean nothing and not exist for purposes of an analysis in one context and yet have them satisfy the false time flicked requirement criterion in another so they're either persuasive and non binding and something the court can look to all the time or they're not you cannot have it both ways and that is exactly how bridgeview would have it and that's the result that would would have tain if we were if the court were to accept the x data at the exit of all however you know you want us to accept the the the the issue for credit district courts and one hand but this court this federal district court didn't really decide the issue they only predicted the issue and what does it what did what would did they describe what indiana would consider or take into reported was examine the indiana law noted what the general contra contract principles were it did spend some time discussing american states and then it it predicted that in the end i would adopt that an whether or not that prediction that opinion is accurate and an accurate statement of indiana law ultimately for its application is not a question that is present at the threshold determination of the choice of law context what is the only question is looking at what they are without and just for the purpose of force of law are very different and if they are then we move to the next step if and only if indiana law is favor because of the most significant context test that's opinions in indiana as soon as that was the the the contest she was required to shut down and say those don't exist those don't count for the stress of law i have to ignore them in fact in her opinion  discussion her ruling she made it clear that this was a distinction between the sears roebuck case another first district case where it was discussed that federal or illinois state trial courts have the discretion to look to federal district court opinions and ascertaining one another state's law a sister states laws the court the trucker made the distinction to say well this is a complex case and in that complex case i can't look to that that is a problem judge because again it gives too much it gives too much living it to say i don't need to agree to this other state's law because i don't like what that wall might represent for me i'm going to avoid this i disagree that this law applies i create the conflicts in our you know and now i can argue that that why doesn't even exist because it's not from a binding source but however in a situation where the parties do agree on the application of the law and it's just a question of what that law is all of a sudden that the blinders are off in the truck or can look to everything that is that is an inconsistent manner in which federal persuasive authority should be considered it should be considered consistently regardless of the context also if this brings a problem with comedy they come from another source such as a federal district court opinion all of a sudden do not do not exist in this context the better rule would be to have it on my truck or it's happened to consider the be all sources available to them for determining whether now can determine to conflict exists allow them to proceed to the most significant context test if an outcome determinative conflict does exist and then allow that court if it needs to case they've had plenty of opportunities to do it they didn't do it they cited new indiana decisions in their briefing they cited to three federal predictions that is justice burke  observed didn't themselves go into indiana law rather these predictions very clearly followed the seven circuits prediction in american states of illinois law and not in for a party that needs to carry the burden to establish an actual outcome determinative conflict potential for conflict it's not enough silence is not enough authority is what's necessary and it's got to be actual precedential authority otherwise it's a prediction it's an observation it's a summation and if we're going to have a rule that requires an actual conflict before we get into the business of applying another state's law we need authority we do we can't have protections  we agree with your position are there any ramifications to a rule that says federal non binding persuasive law is not to be considered in any case in illinois well first of all that's really not the rule i'm advocating for that we're advocating for i think that's the straw man that state farm would like to beat up on the rule would be that the source of an actual conflict of law to satisfy the towns and requirement needs to be state law now a federal decision a federal prediction can be considered in determining whether there is a body of state law that says something different than illinois this case simply put federal predictions that have been put forward don't carry that burden and that's the problem so the rule is not that they can't be considered the rule is that the outcome of the federal case the prediction doesn't matter what matters is the analysis of the state what and with regard to that question again there's been plenty of opportunities to try and point up some difference in the way indiana treats these insurance coverage questions from the way illinois does and the insurers have taken a pass we actually went through it and we provide some case law on pages eighteen to twenty of our opening that really demonstrates that indiana's point by point analysis of this issue is entirely consistent with illinois but it any rate it's not our burden to establish the absence of a conflict it's their burden to establish that one exists and they haven't done it with respect to the policy argument it danced regarding if we stick to the rules that illinois courts will apply illinois law in the absence of an actual conflict that all of a sudden everybody's going to run dealing only courts it seems kind of silly i mean it seems like there were a verse is the problem  anything that if we do in this case what state farm would like then to be ensures it will simply run to federal court rather then deal with illinois or any of the other many states that have found coverage in this area but at the end of the day the principles that i think are most important are what we highlighted earlier which is the gridley barb sales principle that the default is illinois law in that there needs to be a strong reason to depart from it and that courts need to