this was an error because the harleysville the appellant the appellee here failed to notified its is ensured of its need its insureds need to allocate the judgment in order to obtain coverage which is contrary to the coverage and explain what the problem was and that it needed to be ab out to allocate and that would affect the coverage resolution what more should it have done your honor if you look at the representations made to the court there are not quite there was a little bit different than what you just said the representations that they made to the court both in a letter requesting a motion to intervene in its motion to intervene and importantly in its replied to its motion to end in support of its motion to intervene said that it's not to intervene so that it can avoid the necessity of a second proceeding that is what the representation was that i'm reading it permitted to intervene for the limited person purpose of proposing special jury interoperate tori's the factual issues the extent to which there any damages to property other than barest work here's the position that will be you know coverage will be affected by that determination and so that this is an important determination and i think it makes very clear or why it needs to participate in so necessary to assist understanding j b i which is the insurance uncovered exposure and to avoid and an entirely separate and redundant trial to allocate such damages that is the portion which the record reflects and judge a book  below noted that was relied upon expressly by its insured in arguing against proceeding with having a specific special interact atory proffered in its opposition to the motion to intervene j b i stated specifically two things which are relevant here to understanding what the parties were thinking at the time one of which is and i did represent j v i j v i represents your view no sir no stand in the shoes of j b i j b i said in the long list of things in opposing that motion stated among other things that the lack of intervention wouldn't prejudice harleysville because they could later adjudicate coverage and importantly mr barrows who was the principal of g b i stated in  he made decisions ultimately in this case which i would argue were made for that in his view to benefit the plant the he was technically the plaintiff in this case a general contractor with the u v knows how to counter claim which is what we prevailed on but the on and that's that's what the issues here is whether or not that disclosure that request was clear what told the parties and the court what was going to happen what's happened here is there was a judgment obtained after after the motion was denied to us for and intervention we appeared later to to claim covered in the judgment was obtained on a contract theory the contract theory your honor was that was the broad that was that was the name of the claim that was in the case from day one and you know there was that the theory that i had committed torts in its relationship by damaging the work of the third party contractors that was not a theory proceeded was absolutely evidence presented throughout the entire trial that was the the judge as the core below noted d n a and by the way is as the claim notes of harleysville noted is that while the is denominators contractors a broader range of conduct that's covered within the claims and so in fact there was evidence presented below to to the jury of the exact conduct for which we claim coverage exists specifically as three examples that we've used are with regard to a stare tower the framing and the interiors of the home so there was that evidence was presented that was what was actually presented to the jury and the court the court below excuse me noted in it in its ruling that we have all the cases that are cited that it's not just the name of the of the cause of action it is also what was actually presented what are the facts and one thing we agree upon with our leesville is what was the actual basis of the determination and here the evidence submitted to the jury including the conduct i motion to intervene all of i mean j p i was fully aware of at least the insurance company's position that it would make sense to have special interest derogatory doesn't seem to further the purpose of shifting the burden is what i'm suggesting your honor has had the had the had the application for the motion or the support of the motion said if there's no allocation of the judgment you'll be faced with a potential no covered circumstance because we are unable to determine it with some level of clarity what exactly happened we will disclaim coverage that's precisely what is happened but that's not what they said yes you that is exactly what happened but what we're saying is that's not what they said at the time when they when they made the request instead they said we will have a set what will be forced to have a separate proceeding and mr barrows the insured said i don't care i will have a separate proceeding i don't want this now he didn't say i don't care i don't want coverage you said i don't care i want to have i'm prepared to have a separate proceeding if need be ok thank you from the other side thank good morning may please the court lance keylock representing the apple e harleysville wester insurance company new york law and i don't think this is really challenge puts the burden on the insurer to bring a claim within coverage we don't see any authority in new york to shift the burden and i know that's what's being argued here but this is not the case if the has a legal authority to do it where it should be done we on at least five separate occasions our client both by itself and through counsel advised j b i specifically of the coverage issues here and the fact that there was a likelihood of a substantial uninsured verdict here either entirely which is what our position is on our cross appeal or predominantly which is i think even conceded that far more uncovered damages were presented to the jury then cover damage potentially cover damages and so we had vies the insured when we initially difficult to defend them and we defended them for years spending a quarter million dollars we advise the insured at the clo of discovery that we are not providing coverage for faulty workmanship for damages associated with faulty workmanship and you face a substantial uninsured exposure you should consult with personal counsel and j b i did we harleysville hired a separate lawyer me to go in and seek intervention because it didn't want its defense counsel at the time it's assigned defense counsel to be making arguments allocating damages because it wasn't for harleysville to decide on behalf of the insured how best to protect the insured uninsured exposure that was the job of j b i's own lawyer it may have been a strategic decision for to not allocate damages and to face exactly what they're facing now i know it's the you know stepping into their shoes they the lawyer for g b i may have reasonably said i'm facing a very large uninsured exposure and a very small covered exposure it may be best for my client not to allocate damages because perhaps the claims for the covered exposure are there's worse defenses for those then there are for the uncovered and i may be able to color this and reduce the verdict or get a no cause if i don't allocate damages in fact defense lawyers often don't want to have separate lines for damages because they're worried about enhanced damages so he they may have made a very strategic decision to do exactly what they did and it's not for the insurance company to decide for the insured how best to proceed all of our obligation is to tell them what our position is and what what we plan to do and not cover a significant portion of damages and why and we did that five occasions your letter to beginning the our letter at the end of discovery a letter to the court advising that we seek to intervene the actual intervention motion and then we actually wrote a letter to the personal counsel and this is that a seven forty nine and seven fifty eight explaining exactly what our position was and that it was his job at the trial he was personal counsel to proceed how he thought best to protect his insured on his in his client's uninsured exposure which was significant to preserve coverage should he did he need to denominate some elements of the theory of recovery as tort claims as opposed to contract claims i mean can we look past the labels and look at the kind of findings the jury made or the evidence that was presented to the jury in helping to determine coverage or does the fact that there was looks have been prosecuted present to the jury is purely a contract matter does that resolve the coverage dispute for all time i think that's case specific i think in this case because all of the damages were were for faulty workmanship of this insured under their construction management agreement and their separate trade agreements i don't think there was any third party damage to a neighbor's house to a car to to the insured personal property to the venus personal property the contractor's work yet but but there may be situations where where the label is not sufficient you know and you do have to look at the damages so that there was an option by the way for j b i in the in the underlying case to both have its cake and eat it too so to speak it sir only could've asked the judge listen i don't i don't want this influencing the main verdict but can we do supplemental after the initial verdict and we find a total damage amount of a bifurcated verdict yeah can we separate out the damages at that point if there is a verdict so that my client knows exactly you know what was what the jury found and what they did and i think what he that they did not see that and we were not participated we're not allowed to participate in the trial in the proceeding i think that the district court in this case got it exactly right there's no way at this stage to ferret out what was covered and what was uncovered you can you and i've done this and you can go through the exhibits that were presented to the jury a million times and spent a lot of time trying to figure out and there's just no way to match up the damages that the jury ultimately awarded with any discrete items of damages in the three different exhibits that that that the you know as presented to the jury and and when when when  the presentation was made to the trial court you know we responded with different sets of damages that got even closer to what the jury ultimately did them than what they were presenting so so our argument was that any any read any fact finder here would be asked to speculate exactly what comprised that that approximately four hundred five thousand dollars verdict and and if if we were to have a separate trial that actually might be inconsistent with what the first jury did because the first jury may have may have been assessing damages on on on the delay which is clearly not covered on the delay damages the interest and the or the cost overruns which were which were substantial here and that if you had such  damages in line was uncovered images that's correct they would have to meet their burden to show that least there was a reasonable possibility that the four hundred five thousand dollars represented kind of what the jury and to prove that you don't have to look at the think in the best circumstances that's that's problematic but it but i think if you had appropriate damage exhibits that matched up with verdicts it's possible to be done clearly the preferable method would be to to have a supplemental proceeding in the first case is covered that fuller represents the state of the law in new york and that a construction manager even when they do side jobs pursuant to other trade contracts that the entire project is the work of the construction manager and we believe that the district court erroneous they relied on on a decision from this court that applied connecticut law and not new york law and we we believe that none of this was covered but  i was presenting you know i read a warning three hundred seventeen thousand in general damages eighty seven thousand consequential damages is any of that covered under the policy your honor we presented to the court below in the second round of briefing we believe all of its cover and it's laid out in detail to the court below and it wasn't room to do it here but i'll do it very very quickly and these are things i could have been presented to and termonde by a fact finder number one you can exclude certain damages could be excluded because if you start with the one point nine million dollars that were submitted is evidence demonstrates that there was only one change order that was the subject of a recovery because it was specifically in a breach mr mr barrows as j b i went up in installed the workmanship because he wasn't hired to do that he was not he was not a contractor he was a he had a separate train contract to do specific work as a construction manager that you vino's hired  in steel to do the work on the on the stair tower they hired grady and dry wall to do the work on the interior they hired and the faulty workmanship on the part of subcontractor you know it would be to the it is not faulty work on part of the subcontractors it was  it was it was the towers the perfect example he went in and there's evidence that was put into the expert report there was testimony mr barrows went in and put in what's called a cricket on the roof of somebody else installed his his effort to to do some work outside the scope of his contract that impacted the stair tower which then caused a leak and it cost in the dollars in the monies that were scribed to that were part of what was presented to the to the to the jury that's just that's just one example so finish up i'm than cover damages that's not true that's a different of interpretation of their taking of of evidence that was put to the jury as compared to what our view is and there's a record that could be put before other people to determine what was the nature of what these damages were and finally i wan very quickly on the idea of the fuller case the fuller case is not a case it's on point here the fuller case is grounded in the fact that they were primarily a general contractor and indeed a lot of the damages were for done by a trade that fuller itself had hired mr barrows did we did not have that relationship with anybody here thank you thank you reserve decision