the final case on our calendar this morning is and i see general insurance company versus  saw facts about that induced in interrupt the tories in the deposition that occurred in the federal district court action right now and i'm concerned that new york law may not permit us to look at those later a deuced facts and determining the initial duty to defend a question but i'm i understanding is that new york law typically precludes looking outside the four corners of the agreement and up the complaint so what would gives us the authority to do that here completely obsolete correct the duty to defend was triggered in this case we provided counsel for the underlying insured is currently represented in the state case pending a determination of whether or not there is  coverage of the case so a but i understood that here we were considering both a duty to defend and the duty to indemnify and again and in assessing the duty to defend you would say we can take advantage of an expanded record here because the district court was acting in summary judgment so we could look we can determine the about the residency required whether he was resident in the premises or not well again due to defend was triggered in this case we did provide a defense and ultimately when you're looking at coverage as a whole both do need to defend and duty to indemnify at that point we at yes we would analyze all of the facts to determine whether or not there is coverage for the claim in this case the claim a commercial policy out there where there's a different liability policy whether there's a property policy whether there are any other kinds of policies that might cover the claim that this particular policy does not new york losses so as to not only look to the language but the purpose of the policy and look oftentimes will be proof with regard to actuaries come in and say the type of risk that's insured and it's it's it's intensified when the owners doesn't live there that's exactly right and so in a homeowner's  policy you have and in you have an insured who lives on the premises that's a very different kind of risk than an abbott position landlord living in another county or something like that the debt that is not there on a day to day basis of a judge firmly found in ambiguity based on the fact that there was reference to an a three family residence and residence at the location he was residing in the premises at the time and it's that location that appears on the doorstep page is that not correct he was not living there at the time he had no at the time of the policies policy itself for the for the two families does the civically say you have to live in one of the units yes but in the endorsement of just we're going to include a three or four family well in describing the decorations he doesn't have that additional y anguish of you got to live in one of the three or four family units right i understand it would frankly be superfluous it's one definition it's not four separate definitions of residence premises it's one definition and read together has multiple says he three or four family dwelling described in the declarations of this policy and that that's those are residences or premises where he resides yes not what just from the street of policies he said that if you if for the three or four family dwelling you should have had the additional clause of and you live in one of those you're right that's where that's where the the rubber hits the road here right you can't say that because this endorsement doesn't say residence multiple times within it it's not written into it more time one more time yeah i suppose but it's called a residence premises indorsement and it specifically to in terms of schedules and premiums and the way the risk is analyzed when a homeowner lives a property that risk is very very different when he's there on a day to day basis sees things happening sees accidents can maintain the property he's the costs considerably lower than if you have an out of possession landlord with four tenants that he does not know that he does not see and on a daily basis if you take a minute to address also before you sit down the rental exclusion and whether it was raised before judge firman and what your view about it judgment action we are this is a can possibly to the coverage period being totally in opposite and there is undisputed evidence in the record on the summary judgment  point here what we're talking about is whether or not a policy provision is clear and unambiguous or whether it's ambiguous and separate to two reasonable interpretations the duty to defend analysis is based strictly on what's there's no question about that he this is a residence that mr chambers owns the question then becomes does the policy clearly and unambiguously require him to physically reside there and that he got it he was living right that's correct and it's listed as correct as a doesn't say the pledge of the piece of property that he always says the residence premises and what you understand the word residence to me that it's a residence that people live there it's not a commercial rental as as as around articulate not necessarily it doesn't have to be where the insured lives it has to be a residence that is owned by the insurer residence where you live or it's a commercial rental where you don't because then the properties with the commercial use there there was no commercial use here it will i mean commercial use in the sense that you're renting out to other people who live in new york which which he under this under this policy he was permitted to do without losing coverage and that goes to that's true but but it also said that you have to live the president's promise of the definition insured location both of those definitions include used by us arrested or where you reside correct and so the application was from two thousand and nine at some point after two thousand and nine this indorsement is is appended to this policy and i noted in my brief and for reasons only known to him i see the resignation of writes letters initially sent to the insured after this claim was submitted not include that endorsement language but the endorsement was in exchange in consideration for additional premium and added an additional definition of residence premises which judge from quebec with it also says all other of this policy apply and just what is that incorporate the requirement of residence in the premises that insured all other provisions of the policy apply but what judge firm was correct to conclude was that doesn't allow us to take language from the form and appended to the endorsements used throughout the whole policy while hot wells would you put the language in there so you didn't have to repeat the whole thing but that's a minute that you're writing it right out of the policy for god sake but there was there was negotiate that there must have been negotiations in exchange for additional premium that either way you could buy you over did you actually go with your your age of it does it tell that he had to reside there it is that what you're saying no what i'm saying is at some point the circumstances in the use of the residence changed so the policy changed and just like the policy it would really change the nature of the coverage when it did and that's why the insured had to pay for it if you could take a minute and to address the rental exclusion and explain why the rental exclusion doesn't also bar coverage yes thank you so there's two points one is that the judge from  correctly found that that being the argument raised in re argument by him i see below was waived in abandoned now in the initial summary judgment briefing the only argument one and only argument raised by him i see was that both the insured location exclusion and the rental exclusion is she added coverage because of this physical residency requirement there was no mention or argument with regard to the exclusion other than that now i think there might be fairly read in the papers that a more fuller discuss a fuller discussion you're describing about the rental exclusion to get you can move on to the merits of the of the solution yes and that part coverage short so there are there are a number of points with regard to arising out of the rental or holding for rental of any part of any premises not just the insured premises or the residence location and then if it goes on to enumerate where coverage is being put back into the policy where it was otherwise tell us or exceptions as to which your client there's so i understand the judge from that said that but this is not the type of case where you're trying to figure out whether someone accidentally slugs somebody in the jaw or whether somebody intentionally slug somebody in the jaw this is about whether the and i'd love for you to address which of those exceptions you think your client showed applied but please answer judge west thank you so all of them potentially apply and the issue again is whether or not there is the potential for coverage now the cases cited by am i see one for example the home side case in new jersey that actually that was that was found to be coverage there so the issue the hurdle that m i c had to overcome which they were not able to overcome is for example in this first carve out the the occasional basis if used only as a residence in all the cases cited by am i see in which this occasional basis issue was raised there is evidence of a lease or were some evidence of when the property that when the premises was being rented to whom for what purpose of time wasn't girl that was injured she her mother was renting yes but there was no lease it was a month to month six you're talking about what what the record shows about whether this was an occasional basis or whether this was a long term lease because this rests on my understanding is under new york law the obligation to the burden to show an exception is on here so i want to know exactly what in the record establishes the occurrence there was no discovery taken with regard to the term during which ms or for that that's what the point that's what judge counties ask you what did you show to overcome them our our burden isn't to prove that i would burn on the duty to defend isn't to prove as a matter of law that the exception provides coverage our duty on the gun that our burden on the duty to defend is show that there is a potential for coverage which is which is what we've done procedural posture indeed now is there anything in the record by which we would find that one of these exceptions applied to the exclusion there is in my estimation there is nothing in this record which would allow this court to reverse judge foreman and find that as a matter of law none of these exceptions put back within coverage this claim which is what we wish which is what the standard is and if if i may very briefly since it and stop me if it's not ok but if you just take a take minute to tell us what additional thought you have and the wrap up thank you i appreciate that so on on the the interesting procedural posture of below with regard to engendering and watch it from an actual described as odd that the duty to defend measure to generally speaking the duty to defend measure at the beginning of the case based on potentiality for coverage generally speaking a devotee at the end of the case based upon how the case is resolved the a typical  procedural posture in a case like this would have been judge firm and determined that there was a policy ambiguity m i c had a duty to defend under reservation of rights to assert any coverage offenses it shows with regard to indemnity on another day short under reservation of those rights and at the end of the case if necessary we would have gone back to judge for many and dealt with the indentation what am i see did and what judge from described as odd is that am i see said on reconsideration around if if you're on a will not reconsider and grant be sure of summary judgment finding no coverage no duty to defend we also ask that you find against us against the insurer on the issue of indemnity and that i believe fall squarely within the invited error doctrine because n y c specifically asked the court to do something that it did not have to do that it did not necessarily want to do an m r i just or didn't enter it was just asked to make a ruling now and i can strange way where effectively the declaratory judgment action was stayed pending resolution of the underlying case which effectively put us on the hook for defense costs to trial and the judge reasoned that that would mean that if at the end our client was found to have no customer because of the broadness of the underlying pleadings and then to contest that you had a duty to choose we do and frankly we didn't have to provide a defense or indemnity we could have started an immediate declaratory judgment action the problem would have been our customer w have then had a default judgment against him and we would have been right back in the same position where the claimant would have sued us directly to the taking of the default judgment the injured party under thirty nine twenty of the members of the agency or steps in the shoes of the insurer to them that's exactly right and order to control the look actions of lawyers quiet our own counsel in our own defense you know in order to see whether there was liability or not maybe indemnity would have been moot but the procedural prosser of the southern district case was in fact odd probably just to keep the insurance company at the table but you know as a practical matter which is why we did ask the court to just rule on coverage defense and indemnity use sort of one package in coverage if there's coverage there's both and if there's no coverage there's neither set the duty to defend as  advisement sorry if i'm going over and i could talk to my client whether or not we would even see of of if we if there was a finding of no coverage would you know determine whether or not there was recruitment or whether that was a communal we provided that as a courtesy defense is just a cost of doing business but at the end of the day there's no indemnity and considerably for mr chambers i don't know that doesn't and it's ok here's my next question about the limits of liability there's a one million dollars personal liability the six hundred forty thousand dollars building coverage you know whether those limits