all incorporation versus one big in america prior insurance provision applies when a loss is covered under the one beacon policies and a prior excess policy issued by a different insure exists second the court should remain and instruct the district court that one beacons incur occurrence limits in the one nine hundred seventy policies are reduced by the full limit of prior insurance issued by the london market insurers let me take up the first piece in a little more detail the plain language of the contract say that quote if any loss covered here under is also covered in whole or in part under any other excess policy and quote the prior insurance provision applies the phrase any other excess policy means just that it is not limited to other access policies issued by one beacon olin has offered no other plain language interpretation of the provision nonetheless the district court erred by court of appeals decision in viking pump which came out after the district court's judgment in this case there is absolutely no other way following the logic of viking pump to rule in this case before the court inviting pump were policy issued by other insurers and the viking pump court said that it quote enforces non cumulation clauses in accordance with their plain language despite the limiting impact that such clauses may have on an insur recovery it said that with policies issued by multiple insurers before it dress this way conditions the languages quoted on page eleven hundred fifty three of the viking pump decision it didn't answer precisely the question that is before this court but there is no other way to understand the logic of viking pump viking pumps that the logic of our decision is this language in the policy requires an all somes determination having decided that this language applies in all some determination you need to apply as written and i would suggest your honor you do what your honour's you do in part with the district what the new york court of appeals did in viking palm and feel free to look to delaware delaware that has contracted rules very similar to new york and delaware has long had to deal with conditions and the non cumulation clause because delaware has had in all sums allocation that viking pump set applies in new york recently and in delaware the viking pump chancery court decision itself at footnote one sixty five said quote these non cumulation and prior insurance provisions apply even where multiple insurers are involved and quote in hercules vs ai you which was a decision in the delaware superior court the delaware court applied this prior insurance provision the same exact language and send the home insurance companies limits court of appeals was limited to two what it could answer but as i indicated i believe the logic of viking makes it correct to apply the nine cumulation prior insurance provisions here you like to make conclusion based on the plain words that it must apply to the other insurers and i and again i think the delaware courts and the courts that have been dealing with this issue for a long time make it clear that that is the case even if let's say the prior insurance provision doesn't isn't limited to prior policies issued by the same insurer and we agree with you on that and having trouble seeing how it could be the case that the bare fact that there is a prior insurer and there's a prior insurance policy that might recognize that under a particular fact pattern given the insurance that the policyholder bought it could result that a particular policy would not have to pay because it was reduced by the occurrence limits of prior policies we are absolutely not ved of all responsibility and what the court of appeals said in viking pump is you have to apply the plain language of the policy as written even though it has a limiting impact on the insurance recovery and of course by extension that have been injured plaintiff and the new york court of appeals has had at least two cases before it in which there has been a injured child and it is applied to non cumulation prior insurance provision would reduce the recovery available to those injured children unfortunately in those cases that was the plain language of the policies as written now the other point to make about those cases that were before the court such a new york court of appeals heraldo is that when an insurance company wants to have a prior insurance provision limited to insurance policies that itself issues and not other companies issues can say so and all of those cases that have reached the new york court of appeals on this issue have said the same policies issue before by this company these policies don't say that they refer to any other excess insurance policy so the second that leads naturally i think to the next question which is ok so you've decided that there is prior insurance and it applies to  way that we think was was incorrect but here i have asked that the court remain with instructions to reduce the limits by amounts to under the london insurance policies the only issue before the open issue on that question is the following over and says we settled the the london insurance policies before we got a judgment in this case therefore there are no amount due under the prior insurance policies issued by london that is incorrect amounts do is set at the time the is written and the last happens all in is confusing the concepts of amounts do and amounts due and payable the insurance contract uses those terms differently and new york law uses those terms differently amounts are due under the terms of the insurance contract as written without regard to whether the money is payable today and the reason for that is let's look at give it an example for the current situation what i absolutely will so condition j of the policy which is the last payable provision which the parties have brief says that my client one beacon has to pay thirty days after receives the a definite claim and the words it uses are amounts become d and payable thirty days after receiving a definite claim due and payable are two different things in the stronghold decision this court for purposes of statute of limitations under an insurance contract evaluated hundred years of new york law and set a cause of action accrues under an insurance contract when amounts become due and payable because of those are two separate things so for example i crash my car i take it to my garage i call my insurance company let's just call it all state i say allstate i crashed my car i'm going to take it to the garage to get the bumper fixed they don't have to send me a check but you know what they have amounts do to me those amounts become payable once i send them the bill for the new bumper they have to pay me under the terms of our policy it would be within thirty days so let's not confuse amounts do with amount payable and fear the import of my question was what happens with how the power was factored in the  that have been settled for with the shirts go so well the amounts that are due under the prior insurance policy the court all of the court district court needs to do is apply the facts found by the jury to the prior insurance policy just like the district court found the facts and apply them to our insurance policy it so happens the prior insurance policy has the exact same words as our insurance policy so we know the answer we know the answer the amounts are due under the prior insurance and i urge if your honor is any concern about this look at the third circuit's decision in liberty vs trees down policyholders do what the third circuit call the outcome mystic machinations in order to avoid the import of this clause they will settle they will pretend the policy didn't exist they will sue one person before the other all to avoid the import of the prior insurance provisions the second the third circuit went through at least twenty different machinations that policyholders would do to avoid this amounts to issue and where the bottom line is where they came out and where logic in new york law takes you is that you look at what the plain language of the prior policy says just like the district court did with so why shouldn't they why shouldn't the right result be that we look at the settlement not is going back to zero whatever they settled for we're going to have a say in theory it should have been the prior insurer that's responsible for the loss but just to some sort of set off i think you're taking an overly narrow view respectfully of absolved of all responsibility because based on what all in thought the law was they choose chose in this case in this trial below to pursue just the one nine hundred seventy policies by my calculation in preparing for this argument if there is a correct reallocation pursuant to my reading of condition c there will be other one beacon policies in prior years that have responsibility and there will be other insurers in private years that have responsibility so i think to say that because this guy gets off because this is the only thing before us is an overly narrow view of the world and by the way i would also refer the court to the script decision that this court issued which basically says and i'm going to sum it up is that when somebody said allows you to the risk of that settlement there will be enough whereas in the script case it was too much and so you are entitled to the martin good morning your honour's craig martin on behalf of all corporation given the argument what i'm going to focus on is essentially the same types of issues and let me begin by saying this the argument that you just heard means that olin bought this policy and law recovers europe under this policy so it does absolve all responsibility under this policy they pay their premium for nothing but that's where the l the numbers yet because of the numbers that's where it takes you to but let me take you back through three things ok and i'll go through them in order one is there really when you cut through all of those big briefs you have there are three things that you need to look at one is the policy two is the decision in all in three and three is the viking pump decision and i'll start with viking pump world are it's now the law of new york that the insurer gets to pick the policy a stack whatever stack they're going to go up to terms of years one hundred seventy nine hundred sixty whatever and they get to sue that ensure and there is vertical exhaustion so you go up the stack you vertically exhaust that's clear in viking pump it's one of the two certified questions the other issue that was addressed in viking pump and also addressed in all and three was essentially this do you get to recover for the entire occurrence and in olam three looking at conditions see this court essentially held that you're able to go forward and sweep back damages into the current policy period under the language of that particular provision now this court i believe felt constrained by other holdings that were prior to that and the viking pompe case then comes along and adds to that looking at the very same type of provision and in fact the very same language as i read it and the viking pomp case essential east stands for the proposition then not only do you look at the occurrence and you go forward in time from one nine hundred seventy but you look at the occurrence and you go backwards in time as well so you got to go further up the tower and you recover for the entire occurrence so the numbers just to give you give them to you and that's why we point this out they actually we have forty one million dollars in compensatory damages than prejudgment interest that actually moves from forty one to fifty five million under the viking p decision once you add viking part so those are the two basic principles that you have in addition to the policy language itself so then the next question to ask you just to focus way i read viking pump and all of three i read viking pompano and three is being consistent in the sense that you get to go forward with regard to an occurrence and then i read viking pump as you also get to go backwards so that's the incremental teaching of viking pop have some meaning with regard to how the regime works so the way the regime actually works when you go into an awesome is environment which is what the new york court of a popular chose to do is you pick an insurer you sue the insure you recover from the insure that is a pro policy holder position it makes it easier for the policy holder and it obviously has a policy bed to it the insurers than have have the ability to go after each other they have the ability to go after each other under equitable contribution doctrines as your recovery has been altered by keep as a yes it's been increasing want you tell us what you think it goes so if i can pump in this case  and it's the judgment is before this court increases our compensatory damages from forty one million to fifty five million we'd ask the court to make that finding it's all in the record and then this court would have to remain hand so that you have to show that the district court could calculate the pre judgment interest on the additional fourteen million approximately that's what would be left for email and when the district court also have to calculate the new damages based on all songs as opposed to progress why isn't that a district math which is in the briefs and go ahead and enter fifty five million and then let the district court calculate the pre judgment interest and that's why we make the suggestion it's completely clear under viking pump and the math that is was already found by the jury and is in the briefs from the district court what the math would be and how do you take account of the price that on the prior settlements with respect to the prior settlements there is all kinds of case law with regard to w one insurer goes after another insurer for equitable contribution that deals with how they account for prior settlements between themselves and new york new york the court of appeals and viking pop has taken the position that we get to recover from an insurer and then under the all sums regime as it's read in many many places the insurers can go after each other for equitable contribution and so forth there may be and in that litigation should there be that litigation right should it not be some side deal that they do in london with respect to that litigation they may make arguments like the types of arguments that your honor was talking about in your questions is it just an offset or is it something else and it may depend on other arrangements between them because they may be reinsured by one other which i think is what the record would show if the record were developed so with respect to mr martin i may be confused but just to to get the benefit of your so we're not going to pay until you've got everything else from everybody else your position is well go ahead your position is viking says no we get what we want out of you and then you can go back and get it out of the other folks point one is viking pump takes you to all some regime you go back and get it out of the other side folks that's the choice of the new york court of appeals made then point to which i didn't get to yet is this  if you look at that policy language and i'll start with the amounts due provision there are no amounts due here the record has no evidence of any amounts due from any other insurer or from this insurer and there is no adjudication of any amounts due there by a prior insurance policy there is no there is no argument about my car insurance that the amounts do or do when i get in the accident and i say pay me if it were only so if it were only that easy that you could knock on your insurance company's door and all of a sudden they would pay there is this process you have maybe you've had good experience with your car insurance i haven't had such great as experience with my home insurance but there is this process that you go through in which you actually you know make a notice make a claim and frequently and in this case the insurer raises twenty six affirmative defenses and then sues you after you get fifteen notices over eight years that they don't respond  to that's not really amounts do now with regard to the what's troubling me that in a world in which we go to viking pump it seems that your approach to this prior insurance condition amounts to saying that the insur that policy only paid one limit per occurrence and that's ignalina i think in all in three i think it's acknowledging viking pop the in terms of that's the that's the purpose i think of those these two provisions that are in this particular policy with regard to going back to the amounts to do provision the amounts due provision i make the point that there are no amounts due here there's no evidence amounts do you don't even know what amounts do means go before we go yes before and sorry to interrupt you give me an example of how it amounts to would work you say here they're know about to do when would there be an amount do i i wish i knew the answer to that question because i actually don't and i don't mean to be coy about it at all in terms of the amounts due provision as written in this policy and applied to these types of claims as university of kansas law review three seventy five three seventy seven and it goes through a couple of paragraphs and talks about how the amounts do provision small and a small d not defined in the policy by the insurance company that wrote the contract right with regard to the amounts due process provision that it is hopeful hopelessly ambiguous what is it that you know just as a theoretical matter suppose we have prior policies that would cover the same exact thing and they this policy as we suggested when i began the what is it that would make it in amounts to is it just the fact that there's a policy and a theoretical claim is that the fact that we give a notice is the fact that they we follow proof a claim what when they send us the let the reservation of rights letter that says twenty six defenses when they sue us in a declaratory judgment and they raise you know eighty affirmative defenses only to try to at trial is it when the court actually enters judgment because we've prevailed is that when the court of appeals affirms maybe it's somewhere short of a check actually coming in the mail  how do you make that determination in any logical way from this provision as it's written so that that takes us too it's ambiguous as it applies to this particular situation and that takes you to the doctor and that i cannot pronounce contra prefer for latin means the insurance company you win or the insurance company loses and the insured wins there is a third that's fancy english for latin about for a purpose that is actually more even more limited than this we talked about the last oral argument it had to do with accidental occurrence in terms of but that you know the whole purpose is to limit it to one occurrence for this particular insurer not first they're not protecting some other insurer they're certainly not protecting the insured and you know and i ultimately fall back to the position that it is actually ambiguous and in the last decision  your honor went through this type of discussion when you found that it was at any other level of the policy you say that you added those words but that's the way you interpreted the provision i think you didn't do that based on ambiguity from the way i read the opinion but you know in in this case you actually could repeat footnote twenty one from all in three which says you don't need to decide the issue because you are the first two points are your back in all sums regime and also on his regime we gets to sue the insurer and then you let the insurers figure it out second the amounts do prevention is ambiguous other as it applies so there is no amounts do we when third you come to the other up insurance provision there is if i can have twenty seconds to just say i have this cross appeal and we're going to give mr friedman lots of time a rebuttal just so he's not worried ok with respect to we have a cross appeal under ninety three i what happened in the district court is the district court stayed discovery we had at the trial the district court then granted a motion for summary judgment so we in a fact did not get discovery under our massachusetts ninety three a claim in terms of the briefs cover this a lot but i just want to point out to you what is really the core of the ninety three a claim and when you cut through all the briefs what should you look at our basic in addition to all the things we say about lack of investigation and so forth this is what we want to develop as we go back and take test testimony and depositions and sky every we believe that one beacon delegated its claims handling duties to a company called nico a reinsurer of one beacon with conflicts of interest that they allow the sub delegation of its claim handling duties to certain third parties including resolute up in massachusetts and then regulated entity not an insurance company they allow that unregulated entity to make payment decisions based on financial targets not the merits of claims and we think that that's an unfair practice there is a case called commercial universes gillette which is cited in the briefs decided by the massachusetts a period court that stands for that proposition there is also an s t a lauder case that we cited in our br s we were able to take one deposition in which we were able to figure out a little bit of this we'd like to take more because we think that that is the core of the unfair practice that emanates from massachusetts and we should be allowed to take discovery and get into that issue before our legs are cut out from under us a summary judgment motion and that is exactly what the massachusetts statute is we think intended to address is that type of conduct thank you for indulging me with extra time thank you mr mark friedman you'll have free reign more or less thank your honor don't overdo but let me try and hit some of the points i heard first of  all let's get let's deal with this concept of the level of all songs and the one lesson from viking pomp that we should all take is that the new york court of appeals does not like new york being labeled an all some state or pro rata state or any other insurance lingo state what happens in new york is you read the words of the contract and you apply the words of the contract but i don't know what your clerks think of that i so i think here what that means is in the lesson of viking pump is you have to apply the words of the prior insurance provision what i heard my colleagues stand up here in new york is all somes you this since the judgment was issued deal with the math question of how to reduce by amounts i think this court should rule is the address is the issue that is squarely before it which is how do you deal with these settled policies and i think i've expressed that in my opening argument which was you just look at them and you apply them to the facts that are before the court and more found by the jury the same way the court below applied the jury's findings to our policy that can be applied to the prior policy and if the court is interested in the records so that you don't need to augment the record to do this this is really a mechanical record exercise its starting an appendix page two eighty four going all the way to six thirty three i don't  reading them it's just hundreds of pages of the prior insurance policies plus we also have the jury verdicts in the record the other thing i wanted to mention is a little bit more about the viking pump decision the viking decision very clearly says not accumulation clauses like the one we have here prevent stacking the situation in which an insured who has suffered a long term or continuous loss has triggered a cross more than one policy is to add together the maximum limits of all consecutive policies that have been in place during the period that's what the plain language of our policy does it says you can't do that and the viking pump court says that must be enforced that doesn't mean they don't get what they paid for and that along with the latin is the policy of holder's last refuge often what it means is they only paid for one occurence limit per occurrence across their insurance that my colleague referred you to but the article that the new york court of appeals relied on explicitly in making its decision in viking pump written by somebody named yon michaels and if your clerks are like my associates they printed you the electronic version of the article and the electronic version of the article is missing the very helpful chart and the diagram that literally explains how this works in the chart is on page seven hundred thirty two of the paper copy and it shows you exactly in a situation that mirrors this one almost exactly how it works this is not very controversial it's applied in delaware all the time it's a little bit of math  absolutely not and the mistake he's making there is he's saying that's the way it works in all songs world and then let's see what he said up here but we are not in an imaginary all somes world we are in a viking pump world where you enforce the words that are on page and the words on the page the to be enforced say you reduced by the amount of the prior insurance the amount that you don't create another litigation you just do a little math to reduce by the amount of the prior insurance issued by any other excess insured you don't have more litigation you just do a little bit of math i hope that answers your question prejudgment interest is an important question in this case given that it makes up more than half of the judgment and my colleague mentioned it so i just want to say two words about prejudgment interest one of which we could have done a better job of highlighting in our brief there's two reasons the pre judgment interest decision is incorrect i think it's undisputed that under c p l are five thousand and one you commute prejudgment entries from the date the action accrues in stronghold as i said before the action accrues when the amounts become due and payable there's no finding in the district court did not accrue interest from when it became due and payable they could crude interest from when the amounts were incurred and that's a mistake the policy says amounts become doing payable after a definite claim that's a car accident example i gave and two after exhaustion of the underlying insurance and this is where our brief was not perfect as it could be this is sort of basic insurance law after the primary insurance the excess insurance plays next and this is the we should have done a better job of highlighting at page twenty one sixty six and twenty one eighty two of the appendix are the language in the two of the three policies that are issued and what that language says and that's nineteen of the twenty million dollars in that year and what that language says is it is expressively agreed that liability shall attach to the company meaning my client only after the underlying umbrella insurers have paid liability attaches to my client only after the underlying insurers have paid so if all incurred expenses to clean up the mess in the river in one nine hundred eighty four and the underlying insurers have not paid or been held liable to pay the full amount of their limit until nine hundred ninety there is no way that prejudgment interest or cause of action accrues against my client until ninety nine that is a finding that is absent from the record and  sponsored a different finding below so that is a mistake on pre judgment interest aside from the issue of sending a bill for the bumper which is making a definite claim which is plainly in the policy olin's doesn't really contest that these are conditions and things that have to mean that they somehow say they would waive and i don't think you can do things you can't waive the thing i just read to you because it's in the ensuring agreement of the policy the second point is it's really got this whole thing backwards if i can wave a defense by asserting it and that's essentially what they've said they said you've litigated you asserted these defenses for twenty five years therefore you've somehow waived them and that just cannot be the case that cannot be the  last point i'd like to make and thank you for indulging me relates to this mackintosh issue because i think that could simplify the case you know there was a stipulation before the district court that owns council in the trial court below sign that said all any claim relating to mcintosh is dismissed with prejudice the district court said that was a mistake oh it has been tried to defend the fact that it was a legal mistake on appeal because it wasn't at all into saying that the word macintosh's ambiguous i said the word macintosh is not ambiguous because it's the same exact word all and used in its complaint but i just want to point out this if the word is ambiguous the result of entering judgment for one for all and is incorrect if the word is ambiguous in there to potential meanings to the word mackintosh which there aren't you got to send back for a trial what's the word meaning of the word macintosh and with that unless there is anything further i appreciate the indulgence of dressed own ninety three day please thank you  arise from massachusetts and be focused in massachusetts this is a judge question that's what the s j c and kuwaiti danish indicate this is a judge question not a question for a jury it is a judge question the longest decision in this case is four pages of transcript on this question in which the district court said the center of the action is here in new york under bush in which is the massachusetts supreme judicial court case it says there are three main factors where's the defense where is the plaintiff where was the plaintiff harmed and where is the side of the bad conduct i'm assuming that that's all true everything all in says i'm assuming all it is outside of new york outside of massachusetts it was harmed outside of massachusetts the only thing that happened in massachusetts was the guys who are supposed to handle these insurance claims have an office that under bush under washington that  properly dismissed as not primarily insubstantial arising in massachusetts and and we have more than bush did here we have a finding a not clearly erroneous finding from the district court that the center of the action was here in new york and that shouldn't be disturbed so we have bush going plus in this case second of all if you think if you realize this what the federal court in the right your case said about ninety three is very poor important it said massachusetts courts do not provide ninety three claims to nonresidents trying to recover for allegedly unfair trade practices of a corporation in massachusetts under a statute designed to protect against in state frauds what does that mean that means we don't protect people like colin from allegedly bad conduct by claims handler sitting in massachusetts and the flips and the application of that isn't the primarily insubstantial it's the test and the law that says a contract governed by new york law cannot cannot give rise when it is intertwined with to a ninety three a claim and you don't need to take my word for that take the word of the first department in the colgate case which was somebody suing one beacon call game a new york company sued one begin and the first department said consistent with massachusetts law you do not have a ninety three a claim in that circumstance was a contract governed by new york and the person it hired to do the claims handling for them did it wouldn't exist but for the insurance contract everything that they complained about in under massachusetts law that i had to call them back that i had to send them letters that my claim file should be empty i wouldn't have to do any of that if we didn't have an insurance contract is not only is this intertwined with the insurance contract the whole thing depends on it and the cases they cite mueller there's three cases they cite mueller is one of them and there's two other cases along the same lines none of those cases i urge your honour's to take a look none of those cases have a new york contract at issue none we are the they protect in state policy holders not out of state