my name is mike that as him representing state farm in this matter it's a pretty basic hopefully simple case judge basically it deals with the enforcement of an insurance policy and a homeowner's policy that state farm issued to the which years there was a fire loss and there was a claim made for the damage to the home there was a dispute between state farm and the insured as to how much damage occurred what that what the claim was worth so the state farm policy like many homeowners policies contains an r and a and appraisal clause in order to resolve the claim the parties agree that they can they will select appraiser the appraisers disagree they can select an umpire they can select an umpire either party can ask a judge in a court of record to select the umpire so what happens here if well just to back up a second so what happens here is when there's as significant the speed like this as a practical matter the umpires really going to decide the value of the claim and that's really a critical decision the umpires the critical person here because when the two appraisers can't agree and there's a substantial amount of a disagreeable tween the two the court's decision on who the judge chooses to be the empire is really going to decide everything and again this is the enforcement of a contract both parties agree to the insurance policy usually the writers frankly it's not a big deal either state farm or the insured goes ahead and files of the titian cases filed and then council or the individuals or state farm gets a hold of each other people show up in court they can make their pitch they have a agreed upon date it's not a problem and a judge decides who they're going to choose to be the empire in the case typically what we do is state farm will have a list of potential empires the insurer will have a list of potential empires the court can choose from either list or the court can choose someone else again usually it's not a big deal but the selection of the umpire is a big deal because again the person's going to decide the claim and that's the final decision and there's no appeal of of the decision of the umpire and one of the appraisers it's going to be one side or the other but what happened here was a little bit different very different this is basically a race to the courthouse what happened was on april twenty seven and sixteen in church filed the petition for appointment of the appraisal umpire in madison county the same day the same day the judge entered an order appointing dale peak as the umpire in the case and mr peet was one of the nominees of the insurance this was done with no notice they farm state farm was not served this was a one day thing walk it right through the bank it's filed you judge enters an order i mean i stay firm of the selection of the empire no participation with state farm at all so we file on me for will stay firm finally gets notice of what's going on appointing the empire and we ask please can we be heard on who the court selects to be the umpire if the order is already enter binding and stay firm well what happens next while the appraisal forward the appraiser mr peek and mr edgar since like to buy the which years they do their appraisal may twenty six they come up with the value which was the insured value which is differs from state farm by about eighty eight thousand appraisal part and that's a bit again happens all of this happens ex parte so our argument is pretty simple and like i said i think it's a fairly simple case i would hope that due process applies here state farm was denied due process of law through this ex parte activity again what we're doing is this is the enforcement of a contract by the court on a party to the can for a state firm on one side the insurance on the other the court enters in order and that's binding on stay firm but there was no notice and no opportunity to be heard like i said earlier in the process typically in a typical case things are worked out so many files a petition a phone call is made can we go over there we've got a judge assigned let's go ahead and have the umpire decided by the court now you they farm has a list we say that we don't like this person for that reason they say they don't like our piece and person for this other reason who's more behind some of these biased here are not biased over there sometimes we can agree we have a name but sometimes we can agree them again typically it's not a big deal ok but what i'm trying to say here though is because the power of the court is used and involved and the court enters an order that is or entitled to due process we're entitled to show up at the hearing that the court where the court determines who the umpires could be that was the nights here we didn't have any opportunity six so just the timeline mate i'm sorry april twenty seventh twenty sixteen they filed the petition for appoint me to praise one party that's at ca to the order same day april twenty seven that's at sea three in the record we filed a reply to the petition from pyar i may for that said see twenty four our motion to vacate the order appointing the appraisal umpire anyway you know the the state farm policy does that say well the first person that gets to the courthouse wins or the first person that gets there guessed it has to submit their exclusive list of of umpire candidates to the judge or the first person that gets there you know gets to persuade the court it doesn't say that at all it just says either party may petition a court to select an umpire ok there's no waiver of due process there's no whoever gets there first wins there's none of that kind of thing because again any time you know that the parties agree in the public tender using the court to enter an order that triggers d process not good ways the right to be heard when you're in forcing a contract and it is just well like i said it's very unusual situation here outers so the other argument that we're making is the court's order appointing the umpire hears voices it's void because the response service and state farm when this was done it would have been impossible to service they farm because it was done probably within minutes of when they he goes over the clerk's office citation to it but again the records pretty say pretty small here but we filed that right away and this was filed before the court entered the order later i'm approving the confirming the appraisal award this is very similar to up to an arbitration situation there's a legal proceeding brought because it's filed in the courthouse and now we have a legal action going on and a party is entitle to be served and they have notice and if they don't have notice in their nets or and some  incorporates the existing law will existing laws the constitution that has due process know oh no absolutely not we were not allowed to do that we didn't have a we couldn't present a list because the george the judge and or the order and he was going to that's correct we never got an opportunity to ever make that argument that's correct yeah i filed the pleading yes yes absolutely yes that was but that was the the motion of vacat say this we object to them for their reason they object to them for this reason if he wants to still appoint he can certainly do that absolutely but we never had a hearing ike we could never object to that person ok to pick one of the other sometimes we can agree that but the point is we have a hearing we get together with a judge to do this we just we didn't have to hear the word were denied that opportunity that here and the issue of jurisdiction we didn't file or appearance until may for ok but the order appointing the umpire was april twenty seventh so we have the we have the order entered appointing the umpire we don't appear until after that's already done so again there's an argument that you know they may argue well that you know this this whole thing's supposed to be x but i did you know say farmy you didn't do this with a certain at the time he didn't do that with a certain amount of time so you know you've basically given up your right to  appear given up you're here to process rights you know there was never any breach of contract material breach of contract a ledger some kind of vexatious refusal alleged at all this is a unilateral decision on the part of the insurance just go ahead and do this if there's if they're going to argue that well somehow state farm forfeited their right to participate in a hearing to select the arbitrator dislike the umpire again that's a decision for the court if the court if they want to argue that that's fine but the court would have to decide that and we would have to be present to argue against it that's what i'm trying to say here we  present argue against any of these things and that was the bit the whole point of this judge is it is supposed to be an expedited process we try to work things out we try to move forward with these things it was just done one two three without any without any input at all  you guys i don't believe they actually got served we got we were made aware of it apparently mr daniel in here i did enter my appearance after the oh yeah but it was right i had in my appearance after that order was was entered that appointed the umpire they understand what happened here not all right i'm say that's not in the contract but that's like i cited those cases where if a proceeding is brought in poor and someone is sued like they are here that there is requirement for service a person because this whole sort of due process idea applies when you're invoking the power of the court it's like filing of the clear terry judgment action well if the court's going to be involved to determine like we just had the stacking case over here just this well thank you for your participation just escapes thank you for your participation by other means your honor is the result of for me the circuit court decision in this case is simply the uphold literally centuries of precedence in illinois first party insurance appraisal law not arbitration not work comp appraisal which is a distinct area of our law the consequences of reversal of the circuit court's rulings would be the up and cast aside those centuries of illinois appraisal law by stripping the law of it's required certainty predictability and reliability there is no authority for state farm's position taken in this case it's after the fact after april twenty seventh pleadings would just delay tactics this was done no summons was requested no summons was issued no summons is served it because the appraisal clause does not provide for that this was done on a routine every day want to file i'm sorry f petition if a judge is available and then madison county at that time it was judged by the barest assigned to the m r docket it was the equity jug that's to whom the clerk sent me the matter was presented to selected number three of the eight a dale peak who is the only one who has listed as both appraiser and appraisal on pire past experience it appeared to me that judge barbera chose the most experienced person as the umpire and that's how it was done that's how it's always done i want to point out that at no time ever has state farm filed  service is correct because none is required not by the illinois department of insurance not by the appraisal cause of the insurance policy contract notice however and the case law talks about some reasonable notice on  march eighteenth mr or mrs which are public adjuster sent a letter to the state farm's adjuster demanding appraisal quoting the appraisal clause which has nothing about this elaborate after the fact procedure summons and service and motions and hearings and trials and all that it's not part of appraisal law you  and in fact there's the one nine hundred thirty one polygamy case from the us supreme court which talks about these procedures how constitutional due process is not violated not  fringed not involved in an appraisal situation court retains jurisdiction for questions of liability or coverage but appraisal is a distinct animal designed to quickly and expeditiously set the amount of watch that's all it does now we have the situation where jurisdiction of dress two points one is already conferred by the appraisal clause itself either you or we may ask a judge that it's a judge to select and appoint the appraisal umpire it does not say you and we it says you or we they could have gone we went they did not we followed exactly what the appraisal clause provide also jurisdiction is pretty authorized for conferred by illinois statutes state farm the world's largest insurance company headquartered in bloomington illinois is organized under illinois law it's an illinois corporation it does business in illinois and specifically it does insurance business in they it's not required in appraisal of no cases ever no us supreme court case seven circuit illinois springfield fifth district circuit court there is not one isn't that says this elaborate after the fact procedure summons and complaint i mean that's for an elk case this is an m r case in equity these are walk through routinely every day state farm has never employed the procedure it suggests that mr or mrs which or should have done and if it had surely it would cite that to the court it is cited nothing to the court because it doesn't exist it has never existed it's not a law now and should not be  there was talk of this list we submitted a list of eight there's case law cited in our brief where the usual was three we said we've submitted a list of eight state farm had the same equal even playing field opportunity after twenty days to name an appraiser where they did not name their appraiser refused to name their appraiser they had the same fifteen days after that to agree and on  they did not and could not agreement on part because they ate barred stephen record their appraiser from participating and so state farm defaulted in all these things and then judge barb selected one of the eight number three on our list of eight but state farm oddly never submitted any list for the madison county circuit judge when state farm filed its may ninth two thousand and sixteen motion to vacate the order appointing appraisal on par it did not submit any list second to five opportunities when it argued its motion on may twenty seventh two thousand and sixteen it did not provide any list of umpire or alternate umpire candidates third of five when if i would still like twenty two thousand and sixteen objection to the witcher petitioners petition to confirm appraisal ward still no with us at no time during the september sixteenth oral arguments on the petition to confirm the work book award state farm's list was never tendered to the court state farm had no attorney appearing in representing it until  may or when it filed its response replied to petition for judicial appointment of umpire that's at eight twenty three of state farm's on an appendix again with no list of umpire candidates it had five opportunities after the court had ruled appropriately to submit a list and on none of those five occasions or to date as state bar member said well we nominate these guys they could have gone in before we went in but they did not we went in after the time had it lapsed and we went forward as the policy or danes and provides where it refused to have its appraiser involved until it was too late on may ninth two thousand and sixteen which is eight thirty six of our appendix state farm declined our invitation to participate in the appraisal process with your selected umpire meeting with mr peak who was selected by judge where barrett that was a court order that was not an invitation on may twentieth two thousand and sixteen state farm stated state farm will not be participating in any appraisal with this man unquote they'll have peak in the same letter state farm said  to reiterate state farm will not be participating in the appraisal process with your selected umpire in its opening brief state farm posited a hypothetical query one of the shoe is on the other foot well if stay farm had gone to a judge after twenty days if it had named its appraiser which it refused to do if the fifteen days for the two appraisers to select their own are at last state farm could have gone  and had any judge in the equity division on a miscellaneous remedy case appoint the empire state farm did not avail itself of its opportunity mr and mrs which are dead i went to judge burb read every page and word of the petition read every page in word of the proposed order he filled in the name dale f p from the list that a nineteen of our appendix number three of eight he filled in that name that was the court selection and then the appraisal went forward from that point judge barbera us considered all these matters and he denied the motion  amount and that amount stands are subject to review here in this court so the constitutional due process argument has been so since  thirty one and the glidden case where it had none of these elaborate after the fact receivers are required at all because this is appraisal it actually does a disservice to long together arbitration and work with appraisal appraisal is very limited it sets the amount of watch that's all it does and it's meant to achieve a plain simple expedited procedure to do only that it does not die best the courts have jurisdiction on coverage or liability or anything else appraisal as is time honored i cited the current case law which is from the two to nothing decision instead of say two to one or even three to nothing as sometimes occurs is it attributable to the state farm's nonparticipation its boycott it's the fault in this particular appraisal  the circuit court in its findings held that the witcher insurance met the conditions of the party's contractual agreement and dale peak should remain the appraisal umpire as he was he entered with one of the other fraser's his award and that stands notice to state farm's claim agents is noticed the state farm and there was more than the one notice of eighteenth two thousand and sixteen invoking the appraisal procedure there was the follow up of abel eight twenty sixteen saying that which years are proceeding with the appraisal  adjustment was over this was put in appraisal and that's where it stayed and that's what should be affirmed here state farm boycotting the ongoing appraisal process and refusing to participate it did so at its own peril this cold midwinter fire back in february of two thousand and fifteen teen more than two and a half years ago going on three years next february where my client's house burned to the ground state farm's appendix a fifteen the witcher supplementary appendix a seventeen and a fifty one is a photograph of the fire scene it is rubble and debris and ash it was a total loss it was a one hundred percent total loss the only issue is what's the amount of damage the parties were somewhat apart appraisal was in book appraisal happen appraisal is done since december two of two thousand and sixteen when judge burberry's and it is order confirming the appraisal award so we ask that the circuit court of madison county be affirmed in its two decisions it denied state farm's after the fact but to a motion debate kate the appraisal ward and it confirmed i'm sorry found the parties contractual agreement was not it was in here too and when state farm says here's our policy it's a contract of adhesion it's to be strictly construed against state farm it's to be construed liberally in favor of the insurance it has an appraisal clause which spells out relatively straightforward procedures which my clients follow to the letter which typically it's quite a partisan situation yes yes so we we have a list they have a list we get together we have a little hearing with the judge and the judge makes a decision about that that's what we do this all the time little different in this situation but i think you said he was going later what he said was there was a letter drafted to the agent of the of the adjuster demanding appraisal well that's different then were fin petition in the court that the appraisal says they want the appraisal process the start the appraisal process and march eighteenth i think is the date of the letter marty and and what date w the judge enter the order april twenty seventh but the appraisal process in the this order by the way the or the letter we're talking about is  sixteen that starts the appraisal process the the end of the lots of letters it says as much as we are able to agree the amount of los so they may name their appraiser ok and there is a person and if you read that the section which i will do here but there's a whole process for of the umpire prater's can get together select an umpire if they can't they can't and then there's they were they were negotiating they were trying to get the the there was a negotiation that to try to come up with a figure for the amount of the lawsuit and it sometime after the fire i'm not sure exactly when your honor so when they actual if they can't get together they file something in court there is no letter there's no nothing telling state farm we're finding it in court today you better show up it's going to be like a temporary injunction you better show up the we're going to name a judge is going to pick