eagle yes all right ok so mr many artists you've got ten minutes total but you reserved one minute for rebuttal you may proceed we'll give you a warning when you get to the one minute mark on your st nine ok thank you your honor may i please the court i represent the insurance company united states liability i know there's a lot of issues that we brief and quite an extensive record including the trial but i'm going to focus on the nova review function of the court the clear issues of law here i know there are some issues the fact that we had debating back and forth the clear issues of lawyer here concern the summary judgment motion and the court's application of massachusetts case as precedent when there's new york law to the contrary as to one exclusion and another exclusion that the court ultimately held a trial but on a tangential issue whether one piece of work was related to another piece of work when all the evidence was that they were all one job paid with one price and everything so let me focus on your honor's novo function st the exclusion that has the several components that the court term the work related exclusion there's a st component that specifically says when somebody is an employee or working for the named insured that that's go excluded then there's a nd exclusion be specifically addresses claims by any contractor that the named insured may somehow in any way possible become liable for in new york that's clearly addressing labor law situations when somebody who who is in the case because they have some relevance to a premises where work is being performed there's an accident everybody gets sued including like in this case w w the exclusion is different and the facts are different than the benchmark case in the st circuit a landlord is comes within this kind of insurance exception the cases in my main brief start from page forty to your honor's to two  which i must ed here it's important what the sticky situation of the underlying state court case is because it does details exactly with paragraph to be of the exclusion this is not a case in which the injured person is suing the named insured this is a case that falls exactly into the provision of the liability that the insured may have on their any capacity because the liability of the contractor is employee has been assessed and was assessed at the time of summary judgment was part of the record at summary judgment in the underlying state court case as against the the other tenant in the building and the claim was a claim indemnification against all named insured that full sentai really within the situation of the b provision because we did not hire this contractor is the argument now there are some facts about initially was reported that are insured hired this painter there are some issues about them being connected but but is the work done for the benefit of the of your insured absolutely you honor the evidence is that they concocted a lease later on supposedly that they did not keep the st away but they were actually met but you weren't talking about the facts i thought you were saying that as a matter of law  even taking the facts in the light most favorable to the other side this was simply simply and plainly covered by this exclusion i was trying to answer your question your honor yes that is what i am  arguing the law but there was there really is no dispute as to the facts about the work that was done it was assisting the underlying case as a matter of fact in the decision in the un in the stake what they say how they have a lease it's clear that they are the tenants on the st floor the work that was done where the guy was injured was worked on the st floor exactly in their space exactly in the space what they have is they have freezers in that space where all the seafood  atmosphere rusted up various parts of this entire building in this st floor area where the freezers war they put the same information this this argument that you're making now is not the de novo review isn't it i mean the case law in new york is that it's not ambiguous it's been repeatedly upheld by the state court in these kinds of conflicts when somebody seeking another defendant is seeking cross claiming against somebody who didn't hire one kind of the reverse other than the one that this night had had working for them there the court said any insurer any contract there is not ambiguous in new york any contract that must be given it's plain meaning contrary to what benchmarks says in the st circuit applying massachusetts law in new york it's not ambiguous to say any contract or as a matter of fact given the wording of this exclusion you would negate paragraph t if you made it the same as paragraph one paragraph one is the one that says if you if you're working for the insured paragraph two is the one that says any contractor why because in new york there is a labor law being the purpose behind this and the insurance company's understanding is that even if somebody is not working for you you could be held responsible in new york and they put any context under any way that doesn't just limit it to la any anyway so you're saying that if the employee of the insured drove his forklift along the sidewalk and knocked down a ladder like this that was where a contractor was working repairing the building next door that would be any contractor well i think so your honor but you kind of took me away from my facts say my case i'm not i'm not sure both medical because you said any contractor and i was trying to come up with a contractor who had no relationship at all to the person who the employer of the person who caused the accident and you're saying well maybe it isn't any contractor and then the question becomes if it is a contractor who bears some relationship to the  or what what is the nature of that relationship what needs to be established to distinguish the person next door from the person here well i'm not saying that it wouldn't apply in your fact patterns your on what i said any liabilities i may arise under in any respect the point of that nd exclusions the not to address somebody who is your employee or your contractor or working for the benefit of your there is no contractors and someone there's employees volunteer workers temporary workers or casual labor that's what that's exactly the point that i'm making the st one has to do with people that are working for you the nd one says not just contractors that are working for me if they if that's what the the intent was they would have put the word contractors who are working for me then we're not going to we're not going to cover it says differently than the st paragraph which is only for those people who are working for me under the contract portion so what is in paragraph two what does for which any insured may become liable in any capacity modify that hard all the way back  before that all inclusive phrase means to say that in new york where contractors have a special statute where they can sue anyone under any circumstances not only one somebody does something as in our case actually it's a contract but also other types of claims this is a catch all this is a broad all in all inclusive provision that says any liability where you're dealing with a contract because contractors we know are a liability the servant of the insured is the one who caused the accident and then they get sued and you're saying that because they're the person who was injured is a contractor for somebody in some capacity and the insured is liable in any capacity including the capacity of the employer of the person who ran the forklift over this person who happens to be a contractor for somebody remaining claim in the lawsuit is to pass that labor law a claim over to somebody else under any capacity the any capacity language would apply to such a situation because there you have it's almost like this provision was given the plain meaning of the exclusion its purpose is to relieve the insurer of liability for a claim arising out of bodily injury to an employee of a contractor in privity with the insured the issue in that case much like in benchmark also involved a different context this is a i understand that but you seem to be just ignoring the last phrase in pretty with the insured  just quickly to touch on the distinction between merchants and benchmark those were cases in which one contractor is an insured and an employee of a total the other contractor is injured the work of this glazer has nothing to do with the somebody gets injured on their premises this so that's why i say this exclusion clearly falls within let me quickly move to the construction operations in which we had a trial about one thing but there was really no trial needed at the trial supposedly was t whether there was a connection between one component of the of the the work that was all contracted at once paid was one dollar price negotiated wants only in the beginning lasted for thirty days the trial was about whether they were connected my i mean isn't this why isn't that just a fact question i understand your point but it seems to me not unusual for household or for example  to hire somebody to do some major work you know reconstruct my build a new addition to the garage and while you're here also paint the living room and the question is is that all part of a renovation and painting the living room the argument goes from your adversary which is kind of analogous to what's going on here is just ordinary maintenance it's not a renovation adding the garage or redoing the kitchen from the studs up is a renovation and these are two separate things even if they were built by the same general contractor in charge of it presents different people to do different jobs and one job  distinguishable from the other why is why is painting the ceiling here or painting a ceiling beam part of a renovation because because of that somewhere else in the building the same contractor is doing some more dramatic construction work well the facts as to what actually was done are not in dispute it's only what the lawyers spin on it is said is in dispute the facts are not that after starting one part of the job he said you know what can you also do this  starting from the beginning from the beginning there's two things that the guy is hired to do and one he sends workers to do one thing and then he sends workers to do a different thing what is the end even sent the same worker why why is it  not reasonable that in one thing it's part of a renovation project and the other it's routine maintenance that's being done by the same person and billed at the same time invoice at the same time why isn't it why isn't it reasonable for the district court to conclude that these are separate and that one of them is not a renovation is not an exclusion well the the evidence was that because it was one job it was one project end as i tried to point out both at the summary judgment level and the trial the court below the liability that we're dealing with here the court below had assessed at all to be a job that the labor law applied and in quoting  portion of the label or that was applied the court below specifically put dot dot dot where the words painting was showing that the court wasn't considering this to be just a separate painting job they wanted just saying the a liability here arises from a separate bank the job the court below the law is really the isn't there a difference between what is the basis for liability is not what the issue is here the issue is whether that liability is covered under an exclusion that doesn't talk about the labor law it talks about the nature of the work being done your honor they cannot be the difference between the liability that he's being asked to be covered and how do you assess whether this coverage for if you can't say i'm going to go on a deal on coverage on some hypothetical concept as to what is being covered what i'm saying and what i argued to the court below respectfully is that you can't decide the coverage issue without looking at the exact remaining claim that is being passed and how it arrived that being that is being passed to the named insured to say whether that specific not some hypothetical claim this specific claim is covering this specific claim the court said you had a thirty month thirty day job in which you were doing a variety of things i find this all to be under the label law not  separate painting job this was a big job that they were doing for a month in this place the court below assessed liability against w and t on the basis of the one project and that it was all one job and that's why the labor law just it was just a painting job that wouldn't be covered by the labor law no that there's not what i'm saying i'm saying the call them all excuse me then it's a complete it is a completely different question if the defendant is liable under the labor law for a painting job so be it but that's a different question than whether liability for a painting job is excluded by a provision that talks about renovations in the insurance policy those are different questions on thing your honor what i'm trying to point out i yes those those are different questions in different hypotheticals but i'm saying in this specific situation this court said in the ruling assessing the liability that he was not limiting it to the painting how do i know that because if the court didn't say only because the painting as a matter of fact when quoting the statute that the court was holding held was violated and which liability the court didn't even include the words painting it put dot dot dot as throughout the whole decision they're not referring just to the painting aspect saying it's a separate job they're saying because it is not it's not it doesn't matter to the apparently to the issue of liability whether it's one job or two does it the liability would exist i don't either it's one job or two i don't know what it would have added to the court below all i know is that the actual decision spends a lot of time discussing the entirety of the job treating it all as why but why but why whether the whether it doesn't matter if it doesn't matter to the decision of the state court in finding liability whether it's one job or two then that court doesn't have to concern itself with that issue but i don't quite considering the insurance policy has to decide whether this particular work comes within the exclusion doesn't it your honor i don't know why it would have wouldn't have mattered to the state well maybe you better know that if you're saying that what the state court decided controls what the federal court should do doesn't that depend on what the state court was deciding it my why it matters that the thing that is being sought for coverage is what it is i don't know if it would have mattered if the court issued a decision with different wor other words what i'm saying is the fact that the court decided as it did is that it is a known object we have to take that as the premise upon which coverage has to be founded or decided on whether it is or is excluded whether it would have mattered when the mattered for the court to focus only on painting and say that we're separate jobs i don't know all i know is the truth is and the fact that we are stuck with is that the court didn't do that court didn't say they're separate jobs the court didn't focus on painting as a matter fact excluded the words painting from the citation of this provision that was violated i'm saying that's a known fact given that known fact you have to take that as a finding of the lower court that the entire job was the basis for the liability against w and t and won and the bases that now live below the sought to be passed to w n w i think we're way over i whether you're rebutting anything can i have just one extra sentence obviously that i reference i reference all my briefing on recession there is a lot of factual components but the legal standard as to what the insurance company's explanation is and the process that happened and it was never waived is was not disputed as a matter of law the insurance company not knowingly waive there's a difference between knowing things that happened months after the policy then knowing what was going on before the policy which is that determined if issue on recession and there was no office ition as to the facts on under siege and so i don't see and that was not in any way shape or form clearly criminal yes the argument that we hear today that that we should be looking to the underlying w they didn't fly and they were seen with constructive knowledge and after that they not or knew to say hey the policy is the fact that we're not going to redo when it expires months later i think that's r obligation to not use mobile equipment and they don't have operations involving the warehousing of others because from the deposition they learned in fact this was taking place for years and then after that that are in my brief details including the dates that were kind of mashed there by the representation by my adversary my role initially as counsel was to only prosecute the exclusions i'm not the gate keeper  recession i did get deposition transcripts to use in the context of pursuing the argument to the exclusion and i reverted back to my client all of this was explained but at the very worst for my client matter why does that matter i mean if i mean it's all a factual issue no one's accusing you of malpractise i know you're out of what i'm trying to what i'm trying to explain is the record is clear as to what happened we have a reasonable explanation as to everything you know we're clear through any of the record i feel comfortable adding a rescission count because we none renewed the policy over a year ago for the same reasons so please file without the rescission action now at that time you but also the people at the  strange to say they can have all that information and ignore it and then ten months later come around and claim rescission your honor that's what i mean by the time crunch that is detailed  my records in fact the decision not to pursue recession in the st go around in the memo back was based on discussions by me and correspondence by me prior to getting this only a a few days month in the time period between the my recommendation as to whether a request as to whether to file the lawsuit with the seizure or not and then the claim handler getting the transcript and then being told don't file reseason and then the ability to review it the time period that it's almost like two ships that closed in the night at that point and to make the insurance companies be on tricare triggers for everything that happens to trigger years before the year before when the non renewal took place they knew that this accident happened in a warehouse with a forklift and it's only a one year policy it's not like in ancient history they had gotten this application and now oh who knows what happened in between now and then it's a pretty novel inference to think that maybe we should look into your own inquiry notice and i mean you personally the insurer is on inquiry notice to look into whether what happened here was a one day fluke or what happened here was something that's been happening and the application was filed that doesn't seem like a stretch but then there was no indication to say that prior to the application this was happening all the information given to them at that point was that it was a one day fluke this wasn't something that was related to them it only came later on the non renewa fire if you were in choir and decide oh this is you know we're being told a lot of things and i guess we don't have enough evidence that's one thing but here they're you're saying they're under no obligation to inquire they're even didn't to enquire you say well yeah there's a point where you came from relatively close there after august was the notice of the accident st awareness of this thing september th is the disclaimer at that point they were positions and yet more information came on we did inquire i inquired as counsel and we went back and forth on this thing but the point is it's a factual issue as to whether our explanation is reasonable the court below shouldn't a decided this factual issue on recession and made it the whole center without getting to the merits of the case that's why i focused on the other aspects the novo because i think on that issue at the very least it should be tried for a factual determination but on the on the exclusion again i focus on the difference between paragraph one and paragraph two counsel kind of blows blurred the line between the two no where in two does it say that the contractor has to be doing work for the insured nowhere in that nd part of the exclusion does it say the bodily injury of a contractor is related to to work being performed different then that concludes the arguments that we have scheduled for today we have one other case buckingham versus lewis submission so let me ask the clerk of court to to adjourn the court before i do that let me thank her let me thank all the people at the nd circuit who have sort of enabled us to function pretty well nationally and locally so thank you all and have a good time and i speak