last case on the calendar year of american insurance versus liberty mutual this case raises the question that concerns all of us as lawyers and judges of whether form over substance and form over basic fairness is more turners had assigned its rights to zurich to recover that five hundred dollars deductible or any of the money spent five hundred thousand dollars i'm sorry five hundred thousand dollars but look how much is at stake here forty thousand  claim they wouldn't have to necessarily name the insured they could do it on behalf of the insured and that happens all the time point just like they had the right to demand that whining turn and join cases of playing if they and it's winding turner who's money that we're really talking about here and that's wh the operator of that was right right and whiting turner is not making a claim as an additional insured under was his policy it's basically got a right to collect the amount it has to expend for defense costs and contemplated by the insurance law thirty four twenty as being entitled to the protections of the late disclaimers ok because here it's not a cut and action between insurers only because here the money that's recovered from also is not going to zurich it's going to whiting turner and so that's what i think was over looked at below  judge carter below is saying well why do you turn to should have been a plaintive why go ahead and have a new action now we have whiting turner is a plaintive isn't that form over substance that's what i first of all would have no claim against wausau and they do not fall within the zone of protection of the thirty four twenty two statute first with respect to their claim against wausau we actually moved i pointed out that there would be no coverage for recovery of the deductible obligation by whiting turner under the wausau policy a response to that resort conceded that argument there is no coverage so they would have no claim against was so there's why isn't there any comment because whiting turner there's no claim for bodily injury caused by an accident against wedding turner the claim against whitey turner if there was a suit and but it started with a hypothetical yes but if it's if there was a suit the claim against when he turned it for economic responsibility under a contract they were never sued in a toward action saying that they were responsible they greet contractually to pay deductible for the third parties so why do you turn a would have no coverage and this was argued and zimmer conceded this in the underlying in the in the motion argument that what eternal would have no right of coverage under the wausau policy for construction but the policy is only about construction right the policy not to sandoz well meant to sound it was doing was construction right and sell the policy is all about construction but then there's an exclusion when you get to the additional insurance so how does that work together ok there are two additional insured provision the policy covers a lot more the construction if somebody is walking a mile to senate offices trips and falls in their offices and sues motus on oh this is a policy that would that would provide coverage it's not a it's that it's doesn't that limited to it's work it's a it's a so commercial general liability policy that is issued to many types of  these there's one additional insured provision for installation services does not have a construction excess exclusion decided they argued successfully that that installation provision does not apply here because it has a negligence requirement a specific negligence requirement they said let's use this other provision that has an inch that has a construction exclusion now that provision at that time under new york law did not this insurance policy because it was doing construction in the shopping mall and it was required to have additional insurance but those additional insurance weren't going to be covered for this construction because of the exclusion i mean the policy may cover more but the whole reason they got this policy was because they were doing construction in this building no your honor its historic made a made a litigation decision they'd nor the provision that would apply the one that would apply is  the would be not answering i'm talking about section eleven not sections of section eleven would never apply to construction operations it's only item ten that would apply to construction operations they made it a litigation decision to say ignore item ten they should have made that decision but they made the decision to say more item ten item ten is the one that would apply to constructive destruction operations it has a higher standard in its body were negligent standard which has now b and to the other item i understand now what you're saying ok and i agree with your or not i understand what you're saying understood your honor ok now going back to let me just circle back to thirty four twenty the waiver issue because there's no eleven there's no coverage because of the construction operator construction exclusion the only issue is waiver now a previously argued that why do you turn a would be entitled to coverage they also wouldn't be entitled to make a claim as there is no claim under new york law there's no precedent for somebody paying a deductible to get for a third party to recoup that against an alleged another insurer for that third party they don't cite one single case there was no case law to support such a claim this is and it's not a subrogation case a segregationist cases against a tort wrong door and insurance companies not a tour wrongdoer this court has described cases between insurance to insurance companies as co insurance contribution cases they're not in it sure if they are bringing this as an insurer then in the way reduction is applied to them if they're not in it sure then they have no right of action and the right of action between insurance companies by the way comes with because of the other insurance provisions between the two policies switching over to y even if y d turner would not be a within the zone of protection for thirty four twenty two waiver first whiting turner is or any other claimants i want to go through those three they're not an insured the injured party refers to the party alleging bodily injury they're not the party alleging bodily injury so they're not within his own protection then you have the words or any other claim and that follows the words injured party this other complainant connotes someone else other than the injured party that may have a claim against the insured why did turner has no claim against of new york have made it clear that any other claimant really refers to a claim against the insured and they're not insured they also ignore that the waiver doctrine only applies when there's a covered claim in the first place there was no covered claim against whiting turner in the first place where is the claim for bodily injury caused by an accident i guess why did turner is no and it's clear when they talk about whiting turner be the real party in interest while this is not a subrogation case and the fact of the matter is they're not the plaintiff here in zurich is they make a big issue about whether or not whiting turn about i have an address that it i don't know honestly on or i don't know but that would be something that would be addressed in a subsequent action if whiting turn or when to bring its own lawsuit i don't think it's something to be addressed in this action but which way to turn is not a party and it wasn't address by the parties here in the because this is not about this is about the rights between zurich and was and liberty not about the rights of non parties to the suit to the extent that there may be some collateral estop that's why the decision was made in the litigation to rely on section eleven because that construction exclusion in section eleven was waived under the insurance for thirty four twenty which in order to the benefit of whiting turner now  i think this was before the change in the law so you don't have to show where it is don't there's no requirement to show prejudice year to invoke vote the late disclaimer rule because it was before the change in the law  be i don't know if there is any prejudice necessarily i haven't thought about that in all honesty they never came up but i don't think it matters whether there is or not ok we're that's that's a red herring because we're not seeking coverage for whiting turner under the policy for either additional insured coverage or for any obligation it has under its own policy would store it to pay back  up to five hundred thousand dollars we're not looking for coverage for that we are talking about a claim that whiting turner has for reimbursement from wausau for the cost of defending brooks in mass wreck because brook insureds under their policy they can out not they cannot now dispute that by using burlington that's what i meant that it doesn't that it's not allowed and then they brought up that in under thirty four twenty there's the language any other claimant against their boss or insured and that one turner is not any other claimant under that language and thirty four twenty they are they have a potential claim