Surgery Center at 900 North Michigan Avenue , LLC v. American Physicians Assurance Corporation, Inc.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐2622
SURGERY CENTER AT 900 NORTH MICHIGAN A VENUE , LLC,
Plaintiff‐Appellant,
v.
A MERICAN P HYSICIANS A SSURANCE C ORPORATION, I NC., et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 15‐cv‐4336 — Sharon Johnson Coleman, Judge.
____________________
A RGUED A PRIL 12, 2019 — D ECIDED A PRIL 25, 2019
____________________
Before FLAUM, EASTERBROOK , and S YKES , Circuit Judges.
FLAUM, Circuit Judge. A jury found Surgery Center at 900
North Michigan Avenue, LLC (“Surgery Center”) liable in a
medical malpractice action for $5.17 million. Surgery Center’s
insurance coverage under its policy with insurer American
Physicians Assurance Corporation, Inc. capped out at $1 mil‐
lion per claim, leaving it responsible for the excess judgment.
Surgery Center sued for bad faith because its insurer failed to
settle the claim for the policy limit. The district court denied

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2 No. 18‐2622
summary judgment to the insurer but, after six days of a jury
trial, granted the insurer judgment as a matter of law. We af‐
firm.
I. Background
A. Factual Background
Plaintiff‐appellant Surgery Center is an outpatient surgi‐
cal center that permits outside physicians to perform day sur‐
gery at its facility. Defendants‐appellees American Physicians
Assurance Corporation, Inc. and American Physicians Capi‐
tal, Inc. (collectively “APA”) together constitute a medical
malpractice insurance company that insured Surgery Center.
The insurance policy Surgery Center purchased from APA
limited APA’s liability to $1 million per claim and provided
that APA would defend and indemnify Surgery Center for
claims that fell within the policy’s coverage.
The current dispute stems from a medical malpractice ac‐
tion against Surgery Center. On November 26, 2002, Dr. Har‐
rith Hasson performed outpatient laparoscopic surgery on
Gwendolyn Tate at Surgery Center. Dr. Hasson is an outside
physician who had privileges at Surgery Center; he was not a
Surgery Center employee. Dr. Hasson did not see Tate or sign
her discharge instructions before the center released her. In‐
stead, Surgery Center’s anesthesiologist discharged Tate and
gave the written discharge instructions to Tate’s boyfriend.
Four days after surgery, Tate checked into to the hospital with
surgical complications (a perforated bowel) that eventually
rendered the previously healthy thirty‐four‐year‐old a quad‐
riplegic.
Tate sued Dr. Hasson and Surgery Center in Cook County,
Illinois state court in May 2003 for medical malpractice. APA

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No. 18‐2622 3
hired an outside law firm, Lowis & Gellen, to defend Surgery
Center in accordance with APA’s defense guidelines. Jennifer
Lowis and, later, Mark Smith of Lowis & Gellen represented
Surgery Center. Guita Griffiths was Surgery Center’s presi‐
dent, an attorney, and the point of contact for APA and de‐
fense counsel on the Tate case.
As of November 2004, APA set the amount of the “Re‐
serve”—money the Michigan Department of Insurance re‐
quired APA (a Michigan corporation) to put aside to cover an
adverse verdict—at $560,000. APA labeled the case “high ex‐
posure” because it believed the damages in the event of an
adverse verdict could exceed Surgery Center’s policy limit.
After discovery and prior to the first of two trials, on July
31, 2007, Tate’s counsel offered to settle with Surgery Center
for the full amount of its policy with APA—$1 million. APA
rejected the demand. On August 3, 2007, Dr. Hasson’s insur‐
ance carrier settled with Tate for his policy limit of $1 million.
The same day, Surgery Center moved the court to reconsider
the previous denial of its motion for summary judgment; the
court granted reconsideration and dismissed the case. In De‐
cember 2009, the Illinois Appellate Court partially reversed,
remanding for trial the issue of whether the nursing staff at
Surgery Center breached the standard of care when discharg‐
ing Tate and whether the breach proximately caused Tate’s
injury.
Following remand, APA raised the Reserve to the maxi‐
mum amount of the policy limit—$1 million. APA did not in‐
form Surgery Center that it increased the Reserve but told
Surgery Center that it continued to believe the case was de‐

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4 No. 18‐2622
fensible. Prior to the second trial, in May 2010, Tate sent an‐
other settlement demand for the policy limit of $1 million.
APA again rejected this demand.
The jury returned a verdict for Tate for $5.17 million. Grif‐
fiths retained personal counsel following the verdict and set‐
tled with Tate for $2.25 million, of which APA paid $1 million,
per the policy limitation.
B. Procedural Background
In May 2015, Surgery Center sued APA in federal court,
alleging state law claims of negligence, breach of fiduciary
duty, and concert of action. As relevant here, Surgery Center
claimed APA had acted in bad faith by failing to settle with
Tate for the policy limit. Shortly before trial, the district court
denied APA’s motion for summary judgment. It held that
APA’s true assessment of the likelihood of a liability finding
against Surgery Center and of the potential damages amount
in excess of Surgery Center’s policy limit were disputed issues
of material fact. The court observed that the increase in the
Reserve following remand potentially indicated APA’s belief
that Surgery Center would be found liable at trial, though the
purpose of the increase and the method of calculating the Re‐
serve remained in dispute.
The case proceeded to a jury trial. Surgery Center pre‐
sented evidence that in 2005 APA had promoted a new Vice
President of Claims who implemented a company‐wide strat‐
egy, the “Concrete Plan,” to promote aggressive defense of
claims against its insured. Shelly Oblak, the APA claims rep‐
resentative handling the Tate case, testified that APA rated
the case a nine out of ten as to “severity” based on plaintiff
Tate’s condition and that the initial Reserve on the case was

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No. 18‐2622 5
$560,000. APA calculated the Reserve by predicting and mul‐
tiplying several factors: Full Liability Value (the estimated
damages award against all defendants, assuming Tate won—
$8 million); the chance of losing (70%); and Surgery Center’s
estimated percentage share of liability (10%). Oblak testified
that APA rejected Tate’s first settlement demand for the pol‐
icy limit of $1 million because it believed the case was defen‐
sible. That same day, Oblak wrote Griffiths advising her that
APA was not making an offer of settlement to Tate, that APA
would not be responsible for any payment in excess of Sur‐
gery Center’s policy limit, and that Surgery Center may wish
to retain personal counsel to advise it regarding the potential
excess exposure.
When the state court dismissed the Tate case on a renewed
summary judgment motion during the first trial, Oblak docu‐
mented in the case file that APA had “a lot to be thankful for.”
She testified she held this belief because it was a high expo‐
sure case with a sympathetic plaintiff. Following appellate re‐
mand, however, APA raised the Reserve to the full policy
limit of $1 million. Oblak explained how APA made this cal‐
culation: a $7 million Full Liability Value estimate, multiplied
by Surgery Center’s 100% share of liability (as Dr. Hasson had
settled out of the case), divided in half to reach the “midpoint”
of $3.5 million. Because the policy limit was $1 million, how‐
ever, APA capped the Reserve at that amount. Notably, the
second Reserve calculation did not take into account APA’s
evaluation of the likelihood of success on the case; rather, it
merely assessed potential damages.1
1 Oblak testified as much, as did Tom Reed, an APA claims litigation
manager, and Catherine Shutack, APA’s Vice President of Claims.

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6 No. 18‐2622
Prior to the second state trial, Oblak wrote to Griffiths to
inform her about Tate’s renewed $1 million settlement de‐
mand; she wrote that APA was not negotiating a settlement
and again reminded Griffiths of the policy limit. Oblak testi‐
fied that she believed the case “got better for the defense” on
remand; Tate did not have a nursing expert to testify against
the nurses at Surgery Center, which APA considered signifi‐
cant because a medical malpractice case in Illinois requires the
support of expert testimony. Oblak also testified that she met
with Griffiths prior to the second trial and that Griffiths told
Oblak she believed it was a “frivolous case and that it should
be tried.”
Griffiths testified that she knew from day one of working
with APA and Lowis & Gellen that she could hire a personal
lawyer to represent Surgery Center if she “didn’t think that
Jennifer [Lowis] was doing a good job.” Prior to meeting
Oblak, Griffiths had the clinical staff at Surgery Center review
Tate’s medical records and wrote to Lowis, “Although you
are correct to suggest that they indicate a patient with a poor
prognosis, I think that they also strongly support the argu‐
ment that The Surgery Center showed no sign of negligence
with respect to her care.” Griffiths further explained to Lowis,
“I’m concerned because you … chose to highlight the severity
of the patient’s injuries in your cover letter to … APA and
didn’t balance the fact by letting [APA] know that the evi‐
dence so far has all supported our stand that The Surgery
Center was not negligent.” Griffiths concluded, “I really think
we have an extremely strong case in Tate” and asked Lowis
to communicate that to APA.
Lowis then sent Griffiths a letter detailing the severity of
Tate’s injuries and warning her that an adverse jury verdict

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No. 18‐2622 7
“could easily be in the range of $10 million or more.” How‐
ever, Lowis explained her belief that liability for the Surgery
Center for independent negligence was unlikely. Griffiths
had additional conversations with Oblak and Lowis about the
case, focusing on whether the Surgery Center nurses had met
the standard of care, and if their care was good—which
Oblak, Griffiths, and the Surgery Center clinical staff agreed
it was—Surgery Center was going to win the case. Griffiths
acknowledged that she expressed to Lowis and Oblak she
“felt like we did the right things and … felt like it didn’t feel
fair” to settle because “[t]he case was frivolous.” When con‐
fronted with emails with updates from Lowis throughout the
pendency of the Tate case, Griffiths recognized that she knew
Tate’s condition was not improving from the time of Lowis’s
initial estimate of the potential damages and that she had
been told Cook County was a “dangerous” jurisdiction for de‐
fendants.
On July 11, 2007, Griffiths emailed Lowis to implore her
not to settle the case: “I know that insurance companies make
their decisions based on economics, but I really would not feel
right settling this case where I think that it is clear that we
were not negligent in any way.” In a series of emails to Oblak
over the next week, Griffiths explained:
 I know that as our insurer you will be doing
a cost benefit analysis of whether or not to
move this case into a settlement posture
based largely on the defense and settlement
costs of each scenario. I understand fully the
rationale. However, I would like you to con‐
sider our opinion on this matter.

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8 No. 18‐2622
 I request that you strongly consider allow‐
ing us to continue to assert our defenses and
allow us to win this case.
 [I]f you will continue to allow plaintiffs to
believe that there’s always money on the ta‐
ble, then we will only fuel the frivolous nam‐
ing of surgery centers in cases that involve
surgeons’ judgments only.
 Please do not consider settling this case un‐
der any circumstances. We cannot encour‐
age plaintiffs’ lawyers to think that they can
intimidate us into putting money on the ta‐
ble when we more than met the standard of
care.
 The constant increase in premiums have lit‐
erally made one of our centers not profitable,
and we’re wondering how we’re going to
get by.
 I beg you to be as aggressive as possible and
use every available means to make this pain‐
ful and expensive for the plaintiff and her
lawyer.
Griffiths also testified during her direct examination that
she was not made aware of Tate’s 2007 $1 million settlement
demand nor that APA rejected the demand. On cross‐exami‐
nation, however, APA’s counsel showed Griffiths a copy of
the settlement rejection letter with Griffiths blind copied and
a contemporaneous email from Griffiths to Oblak thanking
her “for standing behind us and not settling.” Shortly there‐
after, Lowis emailed Griffiths:

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No. 18‐2622 9
Sometimes I lose sight of the damage potential
in this case because it seems so defensible and
the plaintiff has done such a sloppy job putting
it together, but I do want to remind you that this
plaintiff is a quadriplegic. And if there is an ad‐
verse verdict, it could be and would likely be in
excess of your insurance limits.
Griffiths acknowledged that after the appellate court par‐
tially reversed the midtrial grant of summary judgment,
Lowis spoke with her about Surgery Center’s likelihood of
success at an upcoming trial. Specifically, Lowis told Griffiths
that while the case would likely proceed to trial “on the the‐
ory that the patient was discharged from The Surgery Center
without Dr. Hasson seeing her,” the testimony was “favorable
… on the wrongful discharge theory,” and therefore, Lowis
believed Surgery Center was “very likely to prevail on that
issue before a jury.” Additionally, when Smith took over for
Lowis following the remand, Griffiths acknowledged that
Smith told her they were going to win because Tate did not
have the right kind of expert. Oblak too told Griffiths that the
case got better on remand because Tate was limited to a single
claim. Finally, Griffiths testified that she received a copy of
Tate’s second settlement demand letter and of APA’s rejection
of the demand but that the decision to reject the demand was
not discussed with her.
Several additional APA witnesses believed Tate’s case,
though significant from a damages perspective, was weak
when it came to proving Surgery Center’s liability. For exam‐
ple, Tom Reed, an APA claims litigation manager, testified
that he thought it was critical that Tate had not disclosed a
nursing expert to testify in support of her case and believed

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10 No. 18‐2622
there was “a strong empty‐chair defense against Dr. Hasson.”
Reed estimated Surgery Center’s chance of losing in the 2010
trial was 25%. Additionally, also based on Tate’s lack of a
nursing expert, defense counsel Smith estimated Surgery
Center’s likelihood of success at trial was 90%.
Although Surgery Center relied on two experts at the sum‐
mary judgment stage to opine on the significance of APA rais‐
ing the Reserve following remand in 2010—Guy O. Kornblum
and Allan D. Windt—at trial Kornblum did not offer testi‐
mony linking the increase of the Reserve in 2010 to APA’s as‐
sessment of Surgery Center’s risk of liability, and Windt did
not testify at all. 2
At the close of Surgery Center’s bad‐faith case, APA
moved for judgment as a matter of law under Rule 50(a). The
district court concluded that the disputed facts that had pre‐
vented summary judgment were no longer in dispute. It de‐
termined that the evidence presented at trial showed APA be‐
lieved the Tate case was “highly defensible.” The court cited
the standard for the duty to settle under Illinois law from Had‐
dick ex rel. Griffith v. Valor Insurance, 763 N.E.2d 299 (Ill. 2001),
and explained:
[T]here has to be a reasonable probability of re‐
covering on the excess policy limits, and a rea‐
sonable probability of a finding of liability
against the insured. They have to both be there.
2 The district court granted in part APA’s motions in limine regarding
Surgery Center’s experts, precluding the experts from interpreting gov‐
erning law and from opining on what APA and defense counsel did or
should have done or whether they violated the law.

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No. 18‐2622 11
It can’t be one or the other. And here the evi‐
dence and testimony all demonstrate that the
possibility of recovery, again, was always on the
table. [Surgery Center] was well aware of this
fact, that it would be a possible recovery in ex‐
cess of the limit. However, everyone agreed,
everyone from lawyers to medical to the plain‐
tiff herself, that there was a really good chance
of—they would be successful as to no liability
finding.
The district court relied on Griffiths’s emails to Lowis in‐
sisting Surgery Center had done nothing wrong with respect
to caring for Tate, imploring Lowis to be as aggressive as pos‐
sible in defending the case, and expressing appreciation that
APA was not settling. The court granted APA’s motion and
entered judgment in its favor on all claims on June 26, 2018.
Surgery Center appeals.
II. Discussion
A. Legal Standards
We review a district court’s ruling on a Rule 50(a) motion
for judgment as a matter of law de novo. Ruark v. Union Pac.
R.R. Co., 916 F.3d 619, 625 (7th Cir. 2019). Judgment as a mat‐
ter of law is appropriate if, after “a party has been fully heard
on an issue during a jury trial[,] … a reasonable jury would
not have a legally sufficient evidentiary basis to find for the
party on that issue.” Fed. R. Civ. P. 50(a)(1). The judgment as
a matter of law standard “‘mirrors’” the standard for granting
summary judgment, “such that ‘the inquiry under each is the
same.’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
150 (2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

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12 No. 18‐2622
250–51 (1986)). In deciding a Rule 50(a) motion, the “court
does not make credibility determinations or weigh the evi‐
dence.” Passananti v. Cook County, 689 F.3d 655, 659 (7th Cir.
2012).
In Illinois, an insurer has a duty to act in good faith when
responding to a settlement offer.3 Haddick, 763 N.E.2d at 303.
While an insurer may consider its own interests when evalu‐
ating a settlement offer, it must, “in good faith, give at least
equal consideration to the interests of the insured and if it fails
so to it acts in bad faith.” Cernocky v. Indem. Ins. Co. of N. Am.,
216 N.E.2d 198, 205 (Ill. App. Ct. 1966). To sustain a bad‐faith
claim against its insurer, a policyholder must establish:
“[1] the duty to settle arose; [2] the insurer breached the duty;
and [3] the breach caused injury to the insured.” Haddick, 763
N.E.2d at 304. The duty to settle arises when a third party de‐
mands settlement within the policy limits, “a claim has been
made against the insured[,] and there is a reasonable proba‐
bility of recovery in excess of policy limits and a reasonable
probability of a finding of liability against the insured.” Id.
The parties dispute what is required to satisfy the “reason‐
able probability” standard—whether it is akin to a more‐
likely‐than‐not standard (as APA argues) or whether it falls
somewhere above a mere possibility but less than a prepon‐
derance standard (as Surgery Center argues). The Illinois Su‐
preme Court announced the reasonable probability standard
in Haddick but has not articulated a definition. The Illinois Ap‐
pellate Court, however, has weighed in, stating that it
3 “Because we sit in diversity, we apply the substantive law that Illi‐
nois’s courts would choose—in this instance, the law of Illinois.” Altom
Transp., Inc. v. Westchester Fire Ins. Co., 823 F.3d 416, 421 (7th Cir. 2016).

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No. 18‐2622 13
“read[s] Haddick as requiring the pleading of facts which
show that liability is at least more likely than not, but not nec‐
essarily a certainty.” Powell v. Am. Serv. Ins. Co., 7 N.E.3d 11,
17 (Ill. App. Ct. 2014). “When a state supreme court has not
spoken on an issue, the decisions of the state’s intermediate
appellate courts are authoritative unless we have a compel‐
ling reason to doubt that they have stated the law correctly.”
AAR Aircraft & Engine Grp., Inc. v. Edwards, 272 F.3d 468, 470
(7th Cir. 2001). 4
B. Surgery Center’s Evidence
APA argues we should affirm judgment as a matter of law
in its favor because Surgery Center did not introduce any ev‐
idence that the duty to settle the Tate case ever arose. It claims
that at no point was there a reasonable probability that Sur‐
gery Center would be found liable.5 Although APA urges us
to follow the Illinois Appellate Court’s interpretation of rea‐
sonable probability as akin to more likely than not, it argues
that it prevails even if we apply the lesser standard Surgery
Center promotes. We agree; because APA prevails under ei‐
ther definition of the standard, we need not opine on a ques‐
tion of state law the Illinois Supreme Court has yet to address.
4 Surgery Center spends much of its appellate brief arguing that APA
failed to disclose a conflict of interest to Surgery Center. As Surgery Center
acknowledged at oral argument, however, it did not bring any claim for
bad faith failure to disclose a conflict of interest and instead proceeded to
trial exclusively under the theory of bad faith failure to settle.
5 The parties do not dispute that there was a reasonable probability of
recovery in excess of the policy limits if a jury found Surgery Center liable
(as it in fact did).

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14 No. 18‐2622
Juries can be unpredictable, so there is always a possibility
of liability in a jury trial even in the strongest of cases. That
mere possibility of liability is not enough to prevent an award
of judgment as a matter of law for APA. Surgery Center needs
evidence that its liability was reasonably probable for the duty
to settle to have arisen—it has none. Oblak, the APA claims
representative handling the Tate case, testified that she be‐
lieved the case was defensible, meaning she thought Surgery
Center would not be found liable. Oblak believed this from
the start, and she testified that she thought Surgery Center’s
case got stronger after remand because Tate was limited to a
single claim and did not have an appropriate expert to testify
on that claim. The attorneys handling the defense, Lowis and
Smith, both shared Oblak’s belief in the case’s defensibility.
From the beginning, Lowis believed individual liability for
Surgery Center was unlikely. Following remand, Lowis af‐
firmed her belief in an email to Griffiths: “We have a lot of
testimony that is favorable to us on the wrongful discharge
theory, and we believe we are very likely to prevail on that
issue before a jury.” When Smith took over defense of the
case, he confirmed he shared the belief that Surgery Center
would win because Tate did not have the right expert witness
to support her claim.
Griffiths, Surgery Center’s president and main witness at
trial, did little to help Surgery Center’s case and, in fact, se‐
verely undermined it. Document after document showed that
Griffiths also believed the case was defensible and Surgery
Center would not be found liable because it was not negligent
in providing care to Tate. Though Griffiths testified she relied
on Oblak’s, Lowis’s, and Smith’s counsel to form that view,
she also testified she had the Surgery Center clinical staff re‐
view Tate’s records and that they too believed Surgery Center

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No. 18‐2622 15
was not at fault. Indeed, Griffiths repeatedly asked Lowis and
Oblak not to focus on the potential for significant damages
and instead focus on “the evidence [that] so far has all sup‐
ported our stand that The Surgery Center was not negligent.”
Griffiths made clear to APA and to defense counsel that she
did not want the case settled: “I request that you strongly con‐
sider allowing us to continue to assert our defenses and allow
us to win this case…. Please do not consider settling this case
under any circumstances.”6
The most Surgery Center can point to as evidence of rea‐
sonable probability of liability is the increase in APA’s Re‐
serve following remand from the appellate court. It argues
APA’s increase of the Reserve, and failure to inform Surgery
Center of the increase, evidences bad faith: APA must have
known Surgery Center was at an increased risk of liability, so
much so that it increased the Reserve from $560,000 to the full
policy limit of $1 million. And though APA protected itself by
putting $1 million in Reserve in the event of an adverse jury
finding, Surgery Center argues, APA did not warn Surgery
Center to set aside money to pay for an adverse judgment in
excess of the policy limit.
The evidence is to the contrary: APA repeatedly reminded
Surgery Center of the policy limit and that Surgery Center
would be responsible for any judgment exceeding that limit.
Moreover, Lowis reminded Griffiths on numerous occasions
that Tate had serious injuries and if Surgery Center was found
6 Surgery Center emphasizes that these communications were around
the time of the first state trial in 2007 and that Griffiths did not reiterate
these requests at the time of the second trial in 2010. There was no evi‐
dence, however, that Griffiths expressed any alternative view—i.e. that she
ever requested APA consider settling prior to the second trial.

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16 No. 18‐2622
liable, damages “could easily be in the range of $10 million or
more.” Though APA increased the Reserve amount following
remand, evidence at trial showed the increased amount, as
opposed to the initial Reserve of $560,000, did not take into
account APA’s evaluation of the likelihood of success on the
case.7 Instead, it focused on potential damages, which every‐
one knew could greatly exceed the policy. This evidence does
not support the inference Surgery Center suggests and is in‐
sufficient to establish a reasonable probability of its liability. 8
Surgery Center also points to evidence of APA’s “Con‐
crete Plan” to argue APA aggressively defended litigation
and to suggest that such defense tactics were unreasonably
invoked in APA’s defense of the Tate case. There is no evi‐
dence, however, of a connection between the Concrete Plan
and APA’s decision not to settle the Tate case. Indeed, the ev‐
idence showed Griffiths urged APA not to settle because she
7 Surgery Center argues the testimony of its expert, Robert Martier,
supports that APA estimated a 50% likelihood of success on the merits fol‐
lowing remand based on the increase in the Reserve. However, Surgery
Center takes Martier’s testimony out of context to make this argument: at
one point Martier stated APA “variously evaluated [the] risk at 10[%],
25[%], or even 50, 50,” but that statement was not connected to any testi‐
mony about the Reserve.
8 At oral argument, Surgery Center pointed to the following as evi‐
dence demonstrating APA’s knowledge of the likelihood of liability: the
severity of Tate’s injury and sympathy for Tate, the case was pending in
Cook County (which is known for high plaintiffs’ verdicts), the discharge
nurse was a poor witness, Tate’s boyfriend had died and was unavailable
to testify, and the expert nurse APA retained to testify for Surgery Center
performed poorly in her deposition. But the evidence at trial showed eve‐
ryone involved knew this information, including Griffiths, and they all
still believed Surgery Center was not negligent and would prevail.

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No. 18‐2622 17
believed the case was frivolous and because she was con‐
cerned about the effect of a settlement on Surgery Center’s in‐
surance premiums. Thus, evidence of the Concrete Plan is ir‐
relevant to the issue of whether a duty to settle arose in this
particular case.
Surgery Center did not present any evidence that anyone
involved in litigating the Tate case believed there was more
than a mere possibility Surgery Center would be found liable,
and the mere possibility of liability is insufficient under either
party’s preferred interpretation of the Illinois Supreme
Court’s reasonable probability standard. Because “a reasona‐
ble jury would not have a legally sufficient evidentiary basis”
to find the duty to settle arose—i.e. that there was a reasonable
probability of a finding of liability against Surgery Center—
the district court properly granted judgment as a matter of
law for APA. See Fed. R. Civ. P. 50(a)(1).
III. Conclusion
For the foregoing reasons, we A FFIRM the judgment of the
district court.

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