it please the court robert normally have a roy's plumbing royce plumbing is a small plumbing company in niagara falls new york it does residential some commercial plumbing it got caught up in a larger suit concerning love canal and traditional story pollutants of love canal we are seeking reversal of the district courts determination granting summary judgment to the insurance carrier on the pollution exclusion defense and denying our summary judgment the coverage at least as to a defense is required he says case just coming to us now where love canal took place what fifteen or twenty years ago it's a very good question judge love canal actually took place in the early seventy's resulting in the surplus superfund suit royce is a small part of this fifteen defendant case love canal if you look back seventy years when they get the canal was created in the the pollutants were disposed of roy's wasn't involved there the complaint doesn't allege they were in two thousand and eleven when the other defendants not roys at that point were doing some sewer work there was with the plaintiffs referred to as an acute release it was only after that that roy was brought in to do some of their standard plumbing work with the do in mrs harris basement and other places around love canal has been revitalized there's now thirteen hundred i believe at this point cases that have been filed alleging that the love canal toxic waste were never taken care of the remedy was wasn't proper etc but it's very important in this appeal to remember we're only talking about the allegations that there's two issues judge one is the mechanism of injury now that has to do with what happened and it has to do with the type of damages which is a mechanism of injecting him of injury yes your honor and i think the cedar hosting in kingston cases make it very clear that sewage which is what we deal with is not necessarily covered under the pollution exclusion it's only covered if it is either a taping of facts of sewage that caused the damage will not try to say to this court that the majority of this case isn't about just that the majority of the plaintiffs are claiming to be very candid about that is that there were pollutants to cause them damages but on this question of whether or not royce a small plumbing company caught up in this bigger case with other bigger defendants is entitled to a defense the question is are there any allegations in the complaint that could be covered in this complaint alleges that roy is doing its ordinary poly work going into mrs harris basement taking care of her sewage line taking care of some plumbing did some things negligently over pressurized the system is one of the things they say now could that have caused damages other than the irritating effect of pollutants absolutely and i understand it the only injury that was that was sought to be compensated was injury i mean of course over too much water could cause flood type damage water damage that's not it's not damage by design stand the only arms that are being claimed are ha things that happened was the original complaint was too generic in the supreme court judge answer risp of motion and told the plaintiffs get more specific about what each one of these people did in the damages they caused and so the second amended complaint which is in the record is where they've narrowed things and one of the things that they said about royce was that they caused other economic loss i don't know what that means we haven't had discovery  it could be broken pipes it could be damage to furniture it could be i don't know do i think that the vast majority of the damages may be excluded opinion on the pollution exclusion probably so you know be very ca about that but that's not the law in new york the duty to defend is an absolute separate duty under the policy from indemnification roy's got caught up in this case as did cincinnati i think frankly neither of us would prefer to be in this situation but we are so who bears the burden of that so if you think the vast majority of damages would not be covered i would agree would not be covered by the exclusion you're still asking for the duty to defend for the whole suit which is the law in new york you know it's very clear in new york that if there is any allegations and that was the point i was getting to was new york refers to this is litigation the the the the failure of a duty of care alleges negligence and negligence can be and is alleged to be through excessive pressure and excessive water and so forth but  did what makes me wrong in my belief that all of the harm claims by these pipes was harm from pollutants and contaminants not that you're wrong george but as of yet uninformed we're not at that stage of the case and by we have this information the allegations of the complaints the allegations of the complaint referenced other economic damages as one of the categories of damage other economic eighty three fifty of the record those other economic damages may be a thin reed but it should be enough to keep cincinnati as duty to defend present because roy's in cincinnati neither of us want to be here but between the two of us a three fifty neither of us wants to be here i want to make this point it's critically important it is not fair maybe to both of us but we bought only applies to damages caused by the irritating affects of pollutants as of this time based on an allegation in the rest of the allegations we don't know if we broke a pipe we don't know if we got furniture when we don't know what happen losses i got awful sick and i lost wages i got awful sick as a result of this pollution and lost wages around right after that if that if in the end that this is all hypothetical i now agree if in the end at that point  in cincinnati is able to show that there's absolutely no basis for damages caused by other than the irritating effects of pollutants right yet if the claim is refined outside the bare bones of each other economic loss saying our other economic loss was i couldn't go to work because i was sick and i lost these wages if that is the absolute to talk of the damages then i would agree with the court but i do emphasize behalf of the plaintiff counter defendant in an apple e cincinnati insurance company why isn't your adversary correct on the very last argument or our issue we were talking about several reasons first of all the complaint itself this is an eighty page complaint it does not lack detail what its detail does tell us however is that this is all and only about toxic chemicals i started last night just for the heck of it at the first that how many times it says toxic waste doesn't answer the questions or you have to tell us why the complaint alleges only time our apologies my apologies i lead with my rhetoric and not with this answer which is where it says other economic loss that follows a list of the damages that these plaintiffs claim that they incurred that follows a specific allegation that is from the foregoing and the foregoing is all in only about being exposed to these toxic chemicals there's nothing in this complaint about sewage there's nothing in this complaint about damage caused by the water itself that's the distinction between this case and the precedence the council relied or that royce plumbing relies on which deal with for instance the cedarburg case or the kingston case where there was a duality for instance in one of those cases the water pressure actually washed out in abutment and that was the damage that cause there to be a duty to defend us apart from the fact that the sewage that was included within that water would have been it excluded by that pollutant exclusion this case is different from those cases and with respect from the hyp because this complaint is all and only about the the allegation now a geisha is of toxic chemicals in the effects of toxic and it says on page three forty seven paragraph one fifty six bunch of things like physical things suffering physical disability mental anguish and then concludes with other economic laws so as i understand you have are serious argument he's saying the misconduct that's referred to the the the foregoing foregoing misconduct in the morning the things i specifically included excessive pressure and now using excessive water and stuff like that which at least theoretically is capable of causing various types of harm some of which many of which would be pollutant but not necessarily so he's saying we can't tell whether they're going to three twenty five those are among the paragraphs that are specifically addressing roy's plumbing and what roy's plumbing allegedly did wrong and what those paragraphs say is that roy's plumbing caused pollutants to be dispersed there are a variety of ways in which it was alleged to have dispersed these pollutants it allegedly jetted water that moved or dispersed pollutants from where they were to other places within the environment and that these plaintiffs were allegedly exposed to them causing them arm including other economic loss it also allegedly had too much pressure in the pipes and left the trench open causing these love canal toxins as the complaint alleges to be dispersed into dispersed elsewhere in the environment it says into and onto the plane to slant their properties and then it goes on to say it caused them harm from exposure to those chemicals what don't provide a defense and then i suppose that in the course of the trial and yes the the plaintiffs presented evidence of harm that was the result of excessive negligent excessive pressure which which caused harm that is not in the nature of a pollutant and contamination what then happens can can and and and and the verdict is awarded in those plaintiffs favor or against reporting on such a theory can they then come back to you after the fact and say oh you didn't provide fans you're not libel for the defense for the for the for the amount  expended in defending the case the precedence that i'm aware of that address your question involves situations where a complaint is amended for instance purely intentional conduct there is an amendment in the ad to count for negligence for the ad the claims for negligence that's then submitted to the insurance carrier which now has a potentially covered complaint when before it did not it's a different case from the case that i'm postulating i'm not aware of a precedent your honor that addresses what you're bustling which is a comes up for the first time a trial case law an amended complaints i believe in all the way up through proceedings in this court are that essentially the complaint becomes a de facto amended to comport with the fact proven so back to judge laval's question there may not be a formal amendment but what happens if ultimately smart defense counsel for royce plumbing asks for  respond we're discussing it with you may even be known as we your carrier might be interested and i tend to doubt that your honor because again we don't have a complaint that does any of the things that we're talking about we don't have a court order  although it talks again and again and again and again as you say among pollutant type harm it done say that they were negligent in using too much pressure and it does say that this caused damage which include other underlying case is here although i'm i'm happy to discuss hypothetical why is it not because this complaint does not say that there was damage caused by water pressure it's as water pressure caused the pollutants to disperse and that caused all the damage that people are seeking recovery for and i think that's distinct from the cases such as the cedarburg case where the water pressure caused separate and distinct damage that is washing away the abutments of a structure none of that is alleged here this is all in only about exposure to the love canal toxins which royce plumbing allegedly dispersed such that people were exposed to that that's what my client got that's what my client is supposed to under the law deal with and all i can tell you is that the law is very clear that we look to the four corners of that underlying complaint to determine whether we have a duty to defend the court below i think correctly determined that we did not have a duty to defend both because of the facts is alleged in that underlying complaint taken as a tallit because of the gravel men that complaint which is what the law tells us we need to look at and that so that we don't sound bite our way into a defense that really isn't is it merited under the law in last because of this pollution exclusion which is very broadly written and i would commend the court to its its text in language we clearly did not want to question because if in your mind's eye you can see a situation in which damage is covered by the posy might be eventually found the burden of getting to that point the burden of defending to that point belongs to cincinnati and that case law is clear in new york and i think that this is question here this morning as pointed out there is a possibility tell me this is the chain that would take things the plaintiffs say they're looking for is recovery for injuries and other damages so they they separate those taste on the foregoing splitsville pointed out exactly based on the foregoing and part of the foregoing is in the performance of its plumbing duties was negligent in over pressurising the system in other ways i completely you disagree that there is the limitation on that over pressuring it thereby causing the dispersement pollutants i do i think that that's that's a connection that has not yet been made i think if you need to write to any damages for from the pressure itself again at this point we don't know we haven't gotten to that point in the case but as seen this morning it could be imagined it could be understood in the burden to get to the point where we have a definitive statement on that belongs to cincinnati where is the allegation going to be over pressuring honor that was one point that i had not put on my record notation on it is in the complaint i think it's admitted to being in the complaint in the briefs we did make the point below to the court i have it at a seven thirty one it's thirty one yes i believe that might be part of the memo though referencing it so i don't i don't can't state that that is where it is in the complaint at this point or on the second amended complaint as it starts  it is in the specific allegations as to the sewer incident defendants i do apologize for not having a point directly for you this morning your honor i can certainly point out a little brief after the court so desires so you can't as you stand there point to any substances pollutants and contaminants that have been released into the environment from love canal no your honor i can say definitively that the complaint speaks to the fact that roy's and others over pressurized the system i just can't you this morning where in the record the specific citations and i do apologize for that but it is there and it's understood to be there and it was argued and it is in fact a very important part of the case thank you thank you both interesting cases where reserve decision