at this time of year american empire surplus lines versus colony insurance that we have is that the court below failed to consider the unique nature of the insurance policy that's the that's at issue here which is and owners and contractors professional insured and that's the what's called the contract the sub contractor and independent contractor exclusion is this just a drafting let's or is it what is what was intended injuries covered for labor law claims in new york i don't believe so it says any any contract says bodily injury property damage property damage is out under labor law but by la sustained by any contractor subcontractor independent contractor or any of their employees so the way i read the policy is if well one of my law clerks is walking by the housing authority in a brick falls on or had she's covered under the policy because that's an injury caused by the employer or the contractor at the direction of the employer or at the direction of the owner and that's a covered that's covered under the general policy but if one of the contractors employees falls off a ladder and that contractor then has a claim against the owner because you want to has a non delegate all duty under the labor law section two hundred and two forty to provide a safe place to work that this is not primary  coverage how much clearer could it be well it could first of all on the issue of whether or not that's why you specifically exclude the contractor any contractor subcontractor independent contractor or any of their employees well when  any contractor there is there is no what project other than the country well for any contractor then it's unnecessary to say in the which is included in the exclusion of independent contractors not but in connection with this insurance policy that i'm saying in disconnect with the insurance policy we're not speaking generally about contractors we're talking about the wording of this policy well there's no reason why and this exclusion  they should not have included resignation contractor you know this is one of the crucial contractor on notice that the owner on notice as to what the extent of the coverage was under this policy they also have a secondary let's talk about new york law doesn't new york law tell us to interpret the agreement in the context of all of how the insured understood the risk as it was well as the insured certainly but the insured would not insured understand this risk the insured the night should in new york city housing authority purchase this policy so that it could be characterized as a named insured and only be primary coverage in the event that there was years the new york court of appeals i remember this language is this is this contract ambiguous the contract is in big us as it relates to designate a contractor being considered under this exclusion you should have said designated contractor because that term is used in other places in this policy ok also just the other only other thing  of which i'm sure that you are aware of especially when it comes to policy exclusions it's a strict and narrow interpretation by between the insurer but this is a battle between two insurance companies as to who first and second and so we just don't we first decided as to an ambiguity and second decide as to what the plain language of the contract means yeah yes on or even if the  john leo on behalf of the apple the colony insurance company a big part of my adversaries argument is that these o c p owner contractor protected policies is supposed to be broad and this policy doesn't do that  and he's trying to use that theory to make the language ambiguous however if you look at the record this is a very narrow very special o c p type policy it's a low premium if you look on page seventy nine you can see that the premium for one million dollars in coverage large work site is only seventeen thousand dollars exclusions applicable in new york employers right yes because because we have a label here they can't they want to sell this inexpensive product they have to exclude worker injuries because new york insurance is very very expensive if you look at the premium on the american employer policy which provides general liability coverage for worker injuries for one million dollars in coverage their  premium is three hundred thirty three thousand dollars and that's on page one twenty four of the record so i mean how is this just for passers by is that is that the coverage on this policy is that what you're saying  their employees that's broad there are many pages eleven and twelve we cite a lot of new york state and a few lower court federal decisions interpreted similar exclusion for injuries to contractors independent contractors  employees and they've been upheld as unambiguous in the political here there's no question that technical as a contractor as admitted by adversary first of all common sense was a contractor someone hired to do work they were hired to do work that the contractor dictionary to the policy definition of contractor and quote which is technical technical is the contractor listed in the declarations and there were far too specifically to have the policy has a contract but what's the definition of contractor requote it is the contractor designated in the does collaboration's obviously the word contractor includes the universe of all contractors that also includes the designated contractor it says it right there a third reason if you look at the other insurance cool was in the o c p policy issued by colony and quote on page four and fourteen of my brief it talks about which other policies the power of the county policy will contribute with and it says it will only contribute with policies provided by a contractor other than the designated contractor so it is their carving to designate a contractor out of contractor because they only want to contribute with polic other contractors however the fact that they needed to carve out the designated contractor from the word contractor shows that it's in there if you don't carve it out and what would happen to an injury to an employee subcontractor would also be excluded of this policy because it's any contract or some contract or in the painting contract this is a low premium policy for passers by pedestrians if it was going to other primary bases at this gigantic project they would have to charge many many many times this premium but tech to go what is product and also bought the other policy which names housing authority by name as an additional insured and they paid a very tidy premium for that policy so there's nothing ambiguous here in the low court properly followed prior decisions and interpreted the policy as excluding any contractor which includes the contractor they're not mutually exclusive and what's an independent contractor well someone who's hired to work not put on your payroll they're not controlled you don't make their i was or you tell them from moment to moment what you do you hire them to do a job and they deliver a job that is what technical is there a contractor hired by housing housing is would be very surprised if someone claimed that all those contractors where their employees are not their and this is the main risk technical presents for these kind of policies that their workers would be injured they would then sue the owner and the owner with and turn to technical carriers and say doesn't mean that others don't that's correct there's no distinction that mean one as you use the microphone makes it easier to hear i'm sorry it's correct that there are some policies that do as you say but if this was  concerning what is covered here and what triggers you know folks who are covered well let me ask you a question if this had been a subcontractor of technical a sub contractor of the designated contractor and one of their employees fell off of a ladder would that employees injuries be covered under the poles it's a subcontractor of the designated country and that different then and it was up country i would say yes because of employee who was injured was an employee of the designated contributions a curious result so it is any subject but it's not any contract only because of the the issue of