now moved from d n a testing to insurance coverage certified multimedia solutions versus prefer contractors good morning your honour's may please the court i'm cheryl absurd result in this particular case the second one is that it opens the door to a potentially very troubling problem for insurance in the state of new york generally the issue here is that the policy  account applies any time there's a certified employee involved the second paragraph says the ten thousand dollars cap applies to you in this case meaning certify only if there's a grave injury so the two contradictory the country directory when you read them together within the rubric of new york insurance within the rubric of new york law for on labor law to forty cases they work perfectly in tandem p c i c rates in any states just new it's a point of clarification specifically intended to address a quirk in new york law that doesn't exist elsewhere that p c i see rights coverage in new york under normal circumstances and in a state that doesn't have the great injury exception paragraph one would be enough what p c i see underwriters found was that they needed to clarify for new york insureds that under normal circumstances in other states you know get more than ten thousand dollars worth of coverage for your typical contractual ind other such claims that applies to everybody we understand that in new york there's this grave injury exception which only can be asserted against the named insured it can't be asserted against anybody who isn't the specific employer of the injured plaint interline case and therefore we're making it very clear to you mr policyholder you only get ten thousand dollars even if it's a grave injury case it doesn't matter if it's a broken ankle or a traumatic brain injury it applies in both instance the first clause includes the named should absolutely it's the ice that this policy dot's the ice or definition of who is in ensure that section two who is in insured it goes through every possible type of entity that could apply for that and get insurance and if one did that that section two to seems identify who precisely is cover depending on the entity of  this right but no words if you're an individual one you're the insurer then your spouse is covered if you are a partnership your partners are covered but it doesn't seem to really address the point of whether for purposes of endorsement twenty three and ensuring kluge the named insured does paragraph d of that of section two who is an insurer it specifically says if you are an organization other than a partnership joint venture a limited liability company you are an insured and then in addition to that your executive officers and directors are insured but only with respect to their duties as such your stockholders are insured but only with respect to their liability as stockholders is this  definition of an insured or is this identifying the different individuals who are also covered absolutely the definition of an insured new york law has made abundantly clear for many years going  vero that an insured when used particularly in the context of employment liability exclusions in the stations includes any insured any insured includes the named insured indeed endorsement twenty three specifically has a footnote on it that says you is the named insured the definition of who is an insured includes you reading it out significantly changes the iso definition of who's and that raises my second point which is upholding the child court's decision in this case opens a very serious pandora's box for all insurance companies in new york if this is affirmed it's going to allow policyholders on any kind of policy to come in and challenge the  applicability of any term condition provision exclusion or endorsement that they don't feel like complying with because this decision will say well you know what you're right this doesn't apply to you named insured you're not an insured despite what the policy wording get if you don't like whatever the decision is that everybody can contract differently but we're going to wind up with an awful lot of fights over what the contract says if the policy will be read themselves out of the encourage insurance companies to write these things more clearly on behalf of the insurance companies we don't think you are an insurer it could be any clearer and i so who is the arbiter of what should  be and the standard bearer for how these things should apply says you are an insured and new york state court new york courts have routinely held both federal and state that when it powers when wording is given a definition in one place in the policy it's afforded the same seeking to have the p c i c policy it forced according to its terms in the papers below in the papers in this court and now at this argument judge chin your argue or question has not been answered what is the circumstance under the interpretation put forth by p c i see where the second paragraph of indorsement twenty three applies and the first doesn't there is no circumstance under their interpretation but i think with your adversaries been saying is that this is a and underscoring of the cap that appears in the first because questions had arisen given the new york workers comp scheme and the grave injury  exception that you know no there's no exception that this still applies to you is what she's saying and so it's an emphatic reprieve repetition of the cabinet at that's an argument made initially today by the way source some policy provision that p c i c did but that ignores the fact that only seven different points in this policy the term insured and the named insured are used separately and judge spat relied on that in coming to his conclusion that they they specifically time after time after time in provisions in this policy talk about the named insured which here is certified and you being that is the insurance under the policy that are defined under the ice so form so you can only reach their conclusion by ignoring the other parts of the policy this is a specific indorsement we're dealing with this policy and p c i sees drafting of this policy and they put in this second paragraph which says this ten thousand dollar exception shall apply when there is a grave injury to use the named insured here it's conceded this is not a grave injury case and therefore the ten thousand dollars that judge spat found correctly does not apply to the bows on a lawsuit and therefore the judge several other rules of policy construction that are applicable here and would support our interpretation the first which counsel did touch on the manuscript section of the policy where where this endorsement appears specifically says that sorry if so what where exactly are referring to i'm not sure that i think they're the policy is made up of two sections one is the iso form and one is the quote manuscript section there there are separate provisions under each one which i've set forth in my brief pages nine and ten specified the page numbers there the iso form is twenty seven to twenty eight the manuscript section parts of wood storage pages thirty two of the record specifically states that if there is a conflict or a variance between the two sections that the manuscript section applies and governs and supersedes  counsel for p c i see relies heavily on the iso form the manuscript section is the one that applies if there is a variance and the variance here is that many many times i believe probably about twenty times in that section the term insured slash and or named insured is used and that would clearly mean that on in that manuscript section the word insured and named insurance have different meanings it has to them words have to mean something and and there is there being distinguished in in that was none the less i mean that the opening paragraph sed is very broadly worded in the indorsement you know if any and all claims have a cap of ten thousand right right right so that that's really the just ignore that because of the following well that is p c i c's argument that we should ignore the any and all language and somehow caught out in fact in fact her argument requires us to to  and put into ad in the words if you're going to go along with that argument you'd have to put into that first paragraph non grave injury in order for the org meant to make sense because what she argued is section of paragraph two applies to grave injuries whereas paragraph one applies to non grave injuries even though the language actually doesn't say that it says any and all so it's a completely unreasonable interpretation of of the of that section the the second rule of policy construction that new york law follows is that any limitation on coverage must be described in clear and explicit language and the insurer has the burden not only to show that their interpretation is reasonable but the language is that the proposed construction is the only construction which made fairly be placed on the words and clearly they haven't done that because there's there's numerous constructions in fact and and  this is this is an indorsement that's a severe limitation on coverage bringing it from one million to ten thousand so if they wanted to to include this indorsement it should have been very clear and and to just address the council's argument that this would open a pandora's box the pandora's box is actually the opposite this is a very unusual provision i've done coverage work for twenty years i actually have never seen this type of endorsement it's very unusual so this is something specific to the p c i see policy and  the pandora's box here would be that and insure can limit coverage from one million to ten thousand by putting this very ambiguous invade policy so that the policyholder doesn't really understand what they're getting into because no reasonable subcontractor in their right mind would have purchased a policy that didn't cover contractual and in them  on a case on a job that they're doing for the target corporation with several layers of of insurance if this had been clearly set forth in the language that they themselves used insured and or named insured for example if that had been in this endorsement i would say that mister the the policy holder would never have purchased this policy and he said so in his  affidavit which again under new york law if the ambiguity cannot be resolved the court looks to extend extreme to string that evidence and construe the policy in accordance with the reasonable  mr martin said that you does not include the insureds that's not true you is specifically defined as the named insured insureds is everybody who could possibly receive the benefit under the policy  turning insurance coverage on its ear by trying to make it the opposite of what the policy actually says of course there's a difference between the named insured and an insured you can only issue a policy to the entity that's purchasing it item one of the declaration states named insured which is the person or entity purchasing the policy in this case certified multimedia insureds under section two is everybody that could potentially derive benefit under certified multimedia as policy as it's defined it includes you will be named insured your shareholders your stockholders your officers your directors your employees your volunteer employee your volunteer workers under certain circumstances within their job description any attempt to carve those two out and say that the rest of the policy should only apply to other insurance as opposed to the named insured truly is not what insurance is written to do we cover certified we don't cover everybody else unless certified as part of the policy the argument that any extrinsic evidence should be considered and the reasonable expectations of a policy holder have no bearing here and shouldn't be considered because the judge below specifically said the policy in this indorsement specifically are not ambiguous there is no room for extrinsic evidence to the extent that there could be however a policy holder has an obligation under new york law to read their policy and understand it and reject it if they don't agree with what it says or it's not consistent with what they purchased this is the reason there are insurance brokers for commercial coverage if they got a policy that they thought was giving them something else and actually didn't and that's a broker errors and omissions sure that they need to take up with their broker judge they picked judges they paid twenty eight hundred dollars for this insurance policy they clearly weren't getting the cadillac of insurance they could have paid twenty thousand and had zero sell the limits and much higher limits of liability they purchased something that was what they determined they wanted with the assistance of a broker to guide them they can now come back and try and twist the terms and the definitions to say no no everybody else that i might have to cover only gets ten thousand dollars but i get a different benefit than what i actually paid for