southeast your honor c s i use the federal court as a back door to escape the state courts dismissal of the section one hundred and fifty five claim and when it did that it subverted the fundamental purpose of the statute which is to make sure that the same judge who decides coverage issues also decides whether a penalty would be appropriate so by using the federal court to circumvent the decision and the appellate process of the state court c s i undermine defense to c s i and a twenty seven june rule that the amount payable under the policy for that duty was one hundred and ninety five thousand dollars for the past week selected paid and made them whole and should have been the end of this controversy a penalty of almost three million dollars in attorney's fees were generated primarily in the federal action based solely on a selective litigation disclaimer letter in the state court red in that statute so in hennessy industries versus national union fire insurance company this court held that a sexual this action look at the five simply provides an extra contractual remedy to an action on a policy that score said that and fifty five is not a separate cause of action it presupposes rather than authorised the suit and may only be brought in the same case as one specified in the statute that makes good sense this court said because it preserves resources it avoids inconsistent judgments one here section one that the five applies to those insurance cases where one of the three issues remain undecided that is whether there is an issue liability under a policy of insurance there was no issue is the amount payable of the policy that was decided by the state court in two thousand and seventeen and there was never an issue about delay in settling a claim because there was no claim to settle c s i had settlements underlined litigation without any payment and  not apply to delays in paying judgments it's a penalty statute that reapers only two claims that was the rule and neiman vs economy preferred insurance but no matter selective paid the underlying state court judgment even before the state court issued an order quantifying the em out there is simply never a time when there is a delay in payment from selective not only were these issues no longer alive before the trial court the trial court didn't decide the trial court simply relied on the state court ruling on summary judgment to find that selective had braces contract that's as far as it went your honor of hennessy is as much about statutory construction as it is a rule credential caution statutory construction because the statute is clear and to the kinds of actions that are authorized and and the limited circumstances under which penalties may be available all in the same case it's a case of prudential caution because a preserved judicial resources it avoids inconsistent results just like we have in this case this case your honor is exactly why hennessy was in the st place to make sure that section one hundred and fifty five penalties are decided by the same court that actually decides the underlying coverage issues now c s i argues that its pending claim for consequential damages company which differentiated between penalties under one hundred and fifty five on the one hand and a consequential damage on the other hand to the court said the insured acts of the public good like a private attorney general for consequential damages purely private they act on their own behalf and so the court said that the penalties and consequential damages are quote to be considered fruit of a separate action fruits of the separate action and that's because quote compensation is wholly independent of the vexatious ness of the insurers conduct so the claim for consequential damages alone simply isn't within the language or the scope or the do five plymouth federal court however the state court despite what that entry said certainly had no authority to authorize the violation of the statute the statute stands on its of the statute is very clear and this court has made it very clear that the penalties and the underlying actions identified the statute have to be brought in the same action nothing about the court's order could authorize the splitting off of those court so i don't think that the state court of appeals addressed that issue but to your point one thing that is for sure about the state court decisions is that they reflected the complexity and the thoughtfulness that went into making that decision and nothing in those reading of cramer which is the illinois supreme court decision is that the one hundred and fifty five claim does not stand alone it is not a separate cause of action and in that decision they identified an intermediate appellate decision that may have question really underscores how important it is for the court to reiterate that today without this reaffirmation of the hennessy rule this problem can arise time and again this can inflict a very harms hennessy was trying to avoid burdening the district courts with split claims as happened here and creating the risk in fact the certainly in some cases the inconsistent results that something we don't want to see happen between federal and our state system here on earth even tennessee didn't apply the trial court still committed reversible error because it was supposed to consider the totality of the circumstances surrounding the coverage issues but instead consider just one considering only the pre litigation disclaimer letter by selective insurance and disregard everything that happened in the court action and in doing so it's still to develop coverage arguments after the disclaimer letter but not what happened here course is that by refusing to consider select to argue the state court the trial court effectively impose unselective which is contrary to the rule of law in illinois so permitted to stand the trial court's order actually undermines illinois law by usurping one of illinois safe harbors narrowly interpreted section one hundred and fifty five dollars so it's virtually meaningless and they presented arguments that were never made before the district court for them to consider turning to the facts one of and fifty five trial one we want on summary judgment and we are going to have the damages with regard to the breach of contract claim so there is a breach of contract claim here it is out one   out to moreover on this appeal jurisdiction is under fifty four dollars b for jurisdiction to be under fifty four dollars b there has to be more than one claim and there is there is a breach of contract like again this is not a standalone one hundred and fifty five dollars thing it cannot be turning to the next issue with regard to what the state court decide selective wants to state that the state court decided the breach of contract it did not it only decided one issue it decided the duty to defend and then it turned to another issue and it selective claimed it did not understand what a duty to defend means there is no order from the state court that addresses anything other than those two things a duty to defend and what it means it means a the bells state court explicitly deferred the breach of contract claim to the district court along with a one hundred and fifty five dollars issue it was not tried twice it was not decided twice neither one of those were decided twice selective did not appeal that a winner at any time it went with it now with regard to whether or not selective conduct has been proper the state court again never determined that one could if i was never in there also within their brief they talk about whether or not c s i just went ahead and tray should supply anyway and settled the underlying oregon action and just walk away it was not a walk away agreement whatsoever what had happened is christian supply had to take an injunction they cannot sell the markers at issue another words they were left virtually without is not a viable business that's not a walk away that's not a mind of nothing day one of the things that selective continues to say is that we are only asking for consequential damages in the breach of contract however were asking for attorney's fees too with regard to what we had to do in other words direct damages i'm with regard to how we had to defend against their declaratory judgment action so there is a little bit of overlap but not substantial enough for is that they continued to say that they made a good faith payment we were left to go it alone in the case in oregon and fight him so it was to the way in payment and then with regard to the of the policy too so there were actually two things that we actually were arguing and that sarge because they refused to defend us and it was baseless and i think that's one of the things that's important in this case is that happen is after the state court this is very interesting and the state court actually found it was a duty to defend they still pay their bills so there was at that point in do something with regard to to get them to pay their bills in a timely manner they seem to indicate that selective seems to indicate that a court tells them what to do you stay don't have to pay anything at the end of the day they just go ahead and try to make their was a bona fide dispute however even with that we discovery that we only conducted in the federal court that they knew better that they knew there was coverage they just weren't going to do it but we didn't know that because we didn't have any discovery and in any way so since they never discussed their fallback position with regard to a bona fide coverage rings hollow they already knew there was coverage when they rejected us which we found out later they just weren't going to provide coverage and later on they mended the hole in terms of in their rejection letter that the court looked they didn't have any basis in a later on on appeal with regard to defend they were making arguments that were in their national rejection letter additional bad faith in other words it was a continuation of what they were doing in state court and what we found out later on that they knew behind the scenes and that they were continuing to make arguments that changed their position all the time we have a breach of contract it was reserved over  right it could have been brought in a state court but again the state court allowed it because there was nothing going on in the state what with regard to those issues we could have brought it there again we didn't have to order they allowed us to bring it here and there in their order they said it's fine they deferred or we could go because again nothing had been going on in the state court and i think that was the issue there was it was nothing going on with the state court in the state court actually said count to a serious size amended counterclaims or voluntarily dismissed without prejudice dollars of the l annoying insurance code so the circuit court specifically allowed us to bring it here selective did not appeal that it at all and now selective burning with a really guard to be reward awarded fees that is proper to that is that is proper to with regard to the war of fees under section one hundred and fifty five dollars again it's to make us whole with regard to what they've done and again they have challenges at every every time they get a chance fought us and the court has went through it any and the judge has gone through all of their arguments with regard to challenged the sufficiency a challenge whether or not we could reach out to the illinois department of insurance whether or not we could move to disqualify mr hahn and then they rely primarily on mr hamon court took all of those things under consideration and went to court took all of those items under disk under consideration it tonight and it toward us our petition for fees and therefore this is be the court found a never ending litigation and you found her actions to be reasonable nevertheless selective wants a redo of that evidence which we believe is improper and again excluding mr hammond again big rely on our fees and expenses that we incurred in the oregon action another words we had spent those for this litigation that we were not helped with at all we were never provided with talk about twenty three thousand dollars what happened with regard to that is really we had to continue on and we were trying to cover in some issues because we did not have a defense and that was the promises we didn't have a defense we were actually trying to cover for some of it so that we would have somebody providing a defense for us mainly the supplier of the markers so we had had to watch some thank your honour's to put points i could want to illustrate a recurrent theme you were told selected refused to pay what it owed on the state court until a court told them to do so is it that we're a problem but here's two things that you were told the reason there was a reason there was an appeal of the fia warrant was because c s i had an yet another inflated demand selective paid a one hundred and seventy eight thousand dollars two years before the surgeon in a good faith effort to quantify the amount that was to be due and owing ultimately the appellate court reversed the truck court disagree with the and when it came back fifty five dollars is not a standalone cause of action but that's exactly what was being asserted in the federal court the fact that they now a claim for consequential damages is beside the point for the reasons we identified from the un are versus continental assurance was trying to avoid not happen again at the inevitably will left the door is closed on these kinds of claims as we are very grateful for your time and for your effort and the work you put in this case thank you