a me half of northrop grumman to get insurance coverage for the nice deck claim grumman needed to forward the claim to its insurers the evidence shows the grumman's broker mailed a copy of the claim to both travelers in century despite this evidence the district court granted summary judgment for the insurers and held that no jury could find if the grumman satisfied its obligation to provide notice of the nice dec of the claims at issue here that the package included the claims letter and i think the important point in what we what we argue is air below is that the court applied the wrong legal standard the law in new york is that substantial compliance is sufficient to provide notice and i would call the court's attention to this court's decision in u s underwriters versus city club hotel concerned about whether you were large to get well before separately for each insurer true that you hear answer to change ok ok so move back to the notice of claim in this court's decision in us underwriters vs city club health the policy holder received a letter threatening personal injury like you know here we are putting on notice of a client it sounds like we are providing additional information about this pending lawsuit that's correct that's of the cover letter from of the broker to the insurers said the claim itself was in the packet page two of this packet is the cover letter from grown into its broker and you'll see on that this subject is the now used that claim in the letter it says the state is searching a claim but to get back to  point i really want to drive home is the legal standard in this universe this us underwriters this is the site in question is no longer in use yes that is you know i believe what they were referring to was the sludge bed but if you look to the claim letter itself it's clear that the claim is not limited to the sludge bed it's a claim for investigation and remediation add on around the entire site this would be no different we would we would submit as if there our position a jury could find a nice deck has repeatedly taken the position that that is the entire bethpage facility that's clear from the records of decision in this case it's also clear the way this administration proceeding has played out when additional position right in our position if i could it's also another mistake from two to with group that's correct and if i can make no other point this morning i really want to to call the court's attention again to the u s underwriters case where there was undisputed that like here the cover letter from the broker contained a mistake the underlying claim was a threat of a suit against one po s underwriters when the insurer receives the actual claim it receives notice of the claim and what the court said in response to the errors on the cover letter that inconsistent information is information nonetheless if the insurer had any confusion they could have reached out to the policyholder to to rectify the situation we are not aware if you look at the contract what does the policy say we have to do forward the claim we are not aware of any case the insurers have snopt cited any case in which an insurer received the actual claim and was still held to as a matter of law did not receive notice of the claim and this was not just t because there is proof that travelers received it and my concern at respect is my writing understanding the record that you sent it to the wrong person and that separate apart from whether the wrong address was provided there or not sen to the correct person travellers and there's no proof that it received it so at least with respect to travelers i don't know how you clear that hurdle the insured got whatever the documents you're saying show me that's a different question with respect to the other insurer century but how do you deal with that with travelers with the argument and when the court did all that we sent it to the wrong person the holding was that there was no evidence on which jury could find receipt this was an with a different claim but we still had every reason to believe in appropriate ever reason believe that in connection with that claim century would have given an accurate address but there's two other points even beyond that and i think  the policy language in the u s policy itself not to provide there is no one is a legit amount aware of any specific instruction of where to send the notice letter in the policy itself and what the policy language says is to forward to forward the claim it's our position that that policy language should be interpreted is focusing on the act of sending the claim of their other policies and their cited in some of the cases the insurers rely on in or place no to just to the company i believe is what i says to the company that this was a notice is it appropriate to consider the fact that graham continued to negotiate with the new york state department  response with respect to the voluntary payments i think that's the clearest argument we have for waiver there was a meeting in one nine hundred eighty nine where traveler said you can go and handle this as he as you see fit and we won't object to a settlement we have letters in two thousand  suits that they defended and that's why the statements were made in the one nine hundred eighty nine meeting it was not until this court's decision in avondale into elater in one thousand nine hundred nine that this court rejected travelers position and held that they did oh a duty to defend and testifies and it's in his declaration is that he was that roman was told that they could hand they should handle the matter as they saw fit not that they were going to receive a defense and that was consistent with travelers position at the time  applies to some of the policies and she was still have to reach the notice issue because there are so substantial number of policies that have no patients ok but right so essential and i want to make sure your argument on this a central portion of the district court's reasoning is that they're relevant discharge is the discharge into whatever container is being used and so because grossman was intentionally placing t c e into containers that some of that was intentional some of that the t c e and contaminants in those wastewater discharges were very where there was trace amounts of that the substantial contamination that has led to the clean up is from this study an accidental taint in that and this is an important of two hundred fifty gallons per week he did that based on there's the public find out sam and i i'm not sure i see what the error was it doesn't seem as if that would have been you know except in one instance wall reaches the breaking point but the relevant question is once the breaking point is reached is it a slow up quite different from a puncture that nobody expects to happen and a container that because it is being allowed to corrode slowly over time easy and admittedly going to result in discharge and i don't think that necessarily makes the discharge unexpected it's i think it's well there's a disputed issue a factor whether accident but there's just a disputed issue of fact as to whether it corroded or time the evidence shows that tainted with the evidence could support a finding that if you don't maintain your tanks that you allow them to corrode and they leak that that is unexpected in the which is the one we have but even you know if i could point even as the judge said that too was expected because you said accidents can be expected to happen and if you're going to have thirty thousand people using forklifts and drones there's going to be accidents and therefore you lose insurance coverage but what this court said in city of johnstone and i think applies equally here that's the reason policyholders get insurance because they have thirty thousand employees one of them may have an accident and that's when you look to insurer for coverage if it's just the possibility that some unknown employee at some unknown time is going to puncture a drum then the whole purpose of having insurance would be it would be defeated you would purchase millions of dollars on afternoon your honour's lynn nooner of simpson and bartlett representing the travelers entities as a police your honour's this case is about a manufacturer that intentionally disposed of various ways onto the ground for decades and ended up thoroughly polluting their own property in the groundwater below when grumman's polluting activities caught up with them in the one nine hundred eighty s they undertook the required remediation on their own they committed to spend hundreds of millions of dollars for substantial cleanup activities without involving their insurers during this process grumman did not tender the environmental claims at issue here to travelers from and instead proceeded on it letters in two thousand and two and two thousand and three do not relate to the bethpage facility ny is dec expensive cleanup process they very clearly relate to a different claim which was the be no there has a misrepresentation about that because the letter is said to be about the bethpage facility but in fact the letter is about the bethpage water district and you can see your honour's that this letter pertains solely to the claim asserted by the bethpage water letter again from de cranston because she had not received any response to the first one and you will see that she has the same exact range and the same exact which refers in the sentence before we clearly reserve all rights related to this matter and then it is a typo where she says we wave she means to say reserve when she was deposed she said i can tell this is a dictation error if you look at the preceding paragraph she actually says respectfully when she what she means to write is respective violation of the provisions relate voluntary assumption the law generally holds parties to their signed representations your honor i will accept what you are saying but here's why it doesn't change the outcome because that waiver would apply solely to the bethpage water district claim and not a party well exactly and your honor the bethpage water district claim was actually stipulated away by northrop grumman as having no coverage for it this is a situation where north anymore that's exactly right your honor that's why legally the two thousand and two two thousand and three letters have no effect if i may the notice letter that judge chin focused on absolutely does not constitute adequate notice to travelers first it was not received but second it is definitely not a request for coverage as you noted it was sent to the litigation claims handler on the be page landfill site as an update to that federal litigation i would commend you to look at the other correspondence that grumman sent to travelers in the one nine hundred eighty three to sent to travelers to answer the judge question earlier there was not a specific person but each time when you look at grauman's correspondence it was sending claims to it account executive and what i was just going to refer you to is this correspondence from at a sixty twenty three through sixty eighty three which has over and over and over multiple claims seven different claims that grumman tendered that travelers accepted a defense on from one nine hundred eighty three to one nine hundred ninety so rummy knew how to reach travelers judge reggie said this doesn't sound like the conduct of someone who is seeking coverage because it was it was not grumman did not seek coverage and it did not involve travelers for its onsite facility remediation when you look at these other seven tenders it relates to offsite claims landfills in other states and in new york reason question fact your honor the gibson declaration does not raise a triable issue of fact because it was a self serving affidavit proffered thirty years later that conflicted with the contemporaneous evidence at the time well he says that is consistent with his notes and that is where i caution the panel and their law clerks to look at the actual the actual evidence because the fifty answer on the one thousand nine hundred nine meeting is that it was three years too late there was no written writing there was actually no understanding on travelers part that any claim was being tendered with respect to the to the remedial investigation of feasibility study and in one thousand nine hundred eighty eight grumman submitted that r i f a s so if you look at fairchild the second circuit has held where the with respect to the notes from diane riley travelers account representative who was at that meeting she makes clear that there is not a nice dac proceeding at the bethpage facility when you look at her october hundred nine follow up letter the writing she says i'm writing about the bethpage water district claim now keep in mind they were an off site water district and she said you advised that there was a nice dac proceeding bethpage water district and travellers never understood that they were being tendered a claim by nies deck at the bethpage facility and why it was never tended in writing ever if it had been travelers would have set up a claim file a separate unit number assigned a claims handler as it had done in all of these other matters that are in the record and that didn't happen here no one was more surprised in two thousand and twenty two thousand and twelve when out of the blue travelers received a demand for forty million dollars in past remediation costs at the bethpage facility and was threatened that there would be another three hundred fifty million that's what precipitated this lawsuit and that was brought on in part by graham and old grumman which never thought there was coverage here merging with northrop which men in the new management decided to undertake a hunt for money among the old legacy policies from the historic insurers travelers defended many claims for grumman and paid defense costs and in one instance paid indemnity this claim the nie is declaim was never on our roster of claims because grumman had noticed us and hadn't been working with us it never partnered with us it never asked for consent to enter into the remedial investigation it never asked for us to weigh in on the different options and that's why the voluntary payments clause is also violated simply put when the insurer is not provided notice of the one thousand nine hundred three p r p letter because to the correct address that's the difficulty here so they can't rely on it and there's there's no triable issue of fact that that letter was received it wasn't and traveller's wasn't frustrating or trying to stepping up to the plate it's acknowledging receipt it's assigning defense counsel is partnering with grumman that didn't happen on the night that proceeding because it was intended and really the the critical point i would say to you is that nine hundred eighty six is when the world changed for grumman up to that point it had four sludge beds on its site that it was no longer using that it had fully remediated judge la yeah i already pointed out the internal grumman correspondent saying that that was an inactive site that was being taken care of one thousand nine hundred eighty six is when the world changes for grumman nasdaq comes in and says you need to undertake a site wide investigation six hundred acres and you can see the internal correspondent saying this is bad news this is the opening volley volley in what could be a long expensive ten to twenty million dollars remediation it's now more like one hundred to two hundred million dollars remediation but i do want you to address just briefly  your client's position are the water district claims separate notice your honor the water district claims needed separate notice because they are in fact new demands from  this court's precedent and fairchild defines a claim as a demand for relief those three water districts absolutely in two thousand and two thousand won their meetings with graham and were remediate and it wasn't just an abstract we think you should be a good partner and do a lot of cleanup in your own bethpage facility they were demanding onsite well head treatments  there geographical real estate that's remediation at their home not brahmins home so the policy itself to get to your point requires forwarding any demand that's why summons a process of suit so a claim is the big category and underneath that you can have a demand or a lawsuit i agree the water districts never filed their own lawsuits what they did was participate in this crisis i had ministre to proceeding absolutely your honor and here you've got a litigation manufactured argument because when roman filed its answer it said it faced claims from bethpage water district its counter claims it also referred to claims at these four cents so this is a bit of an effort to try and say we need to get coverage all under one theory it's the one playing theory if we can create enough of an ambiguity around that one thousand nine hundred three letter hopefully we stay alive for summary judgment and an expensive settlement discussion and call everything part of that claim and i'm asking you to look at each claimant separately and do the analysis because that is what's required under our contracts thank you thank you  that didn't occur because as the record shows without any contradiction grumman knew everything that it needed to know by the late one nine hundred seventy s to provide notice to century that an occurrence had happened and do not take it from me don't take it from the judge below catalog the full record but the most important document i think that resolves in a way to be clear about this the doser current point by their own argument results entire cases to century because as my colleague was just pointing out they were trying to narrow they've been trying to narrow the case down to everything turns on the one nine hundred eighty three eighty four notice of whatever that was notice of that's this one occurrence and if as is true they didn't provide they had it they owed us a duty to notice the occurrence wells as was undisputed according to their own january nine hundred seventy nine report they knew they were contributing forget everything about hooker grumman knew they were contributing to contamination of t c e in the groundwater and at no point there's not one seven they identified that claim as hundreds of thousands of dollars the garrity internal report that grumman conducted said it would be hundreds of thousands of dollars to at least that to remediate what they had identified as a problem so there was a perfectly clear understanding at grumman that if they were held liable for the contamination which they were aware of and acknowledge that they had caused it was going to be hundreds of thousands of dollars which would easily meet the attachment point of the policies but to go back to the  point they never made that analysis the allianz case explicitly says there has to be a deliberate determination of the of the liability will not reach a given policy otherwise the insured can't come back decades later and say well if we'd thought about it we would have reached that there's not one memo there's no testimony there's no notes that suggest at any point in the seventy's that anybody grumman did an analysis and says we don't need to provide you get to the threshold point that there is occurrence you knew about it why didn't you provide notice you don't get to say well a reasonable insured wouldn't have what you say is we decided that it was not going to reach we had a good faith while the case of say the phrase they use is you have to reach because the question is did they have a good faith a reasonable good faith belief in non liability the cases that grumman cites are talking about reasonableness without without talking about the antecedent question of whether they overreached because normally the insured will have reached and the only question being litigated is whether it was reasonable but here and the only place be lines places case excuse me makes clear that there does have to policies and see coverage under the century policies which i think is important but also goes to the broader part the broader point that this wasn't an effort to obtain coverage from anybody there was no request for coverage but certainly not from centuries what it was was what it said on its face which was the provision of additional information concerning an existing file involving litigation at the old bethpage landfill there is no point at which it was an actual claim i want to address the case th mr mosher seems to be relying placing all of his weight on an appeal which the u s underwriters case which involved if you look at the facts of that case and the discussion of the case it involves inconsistent information on the face of the cover letter that is otherwise unambiguously correct statement what grumman itself thought which was that this is a more information about another already existing claimed page landfill it was not providing additional information as he was not providing notice of any kind of new claim concerning the facility with respect to the century policies in addition remember there is requirement that with respect to providing a notice of occurrence so this is the first time they've noticed anything to us they have to provide all a four zero three six identifying grumman as a source of t c e contamination explaining to the regulators what grumman is going to do to stop the inadvertent spills that have led to excessive t c e contamination the notice of claim as to oyster bank adequate that the two thousand and five claim first of all there are so many problems before you get to the two thousand and five i understand but i just want to make sure i understand your position should we get the two thousand and five planes comes three years too late because the two thousand and two claim is what the notice of the record of violation is under this course very childish and as my colleague pointed out what you have to provide notice of is noticeable exposure to theory is still you know from that articulation that they believe that we have that grumman has caused a problem that under another articulated theory would be within the scope of the policies that's an exposure to liability that in the scope of the policies the fact the precise specification of the statute under which you intend to sue doesn't it is not the correct focus the question under fairchild is are you talking about a problem or giving notice of the problem that represents an exposure to liability when the policies and that's clearly what happened in two thousand and two the two thousand and five notice there was a another problem with it being too late after they got notice of it that's a second right and there's no explanation at all for why they would wait forty seven days none whatsoever thank you thank you very much virtually every issue in this case turns on the reasonableness of the parties actions and beliefs in their intent behind taking those actions those are quintessential fact questions you heard from travelers the you need to interpret some letters by drawing inferences based on other letters you need to interpret letters based on that what was in the mind of the person who drew that that's just not what should be done on summary judgment on the waiver of the first on by sight and then there's a separate paragraph that doesn't contain any limitation as to particular claims contains the waiver but as your honor also pointed out that issue is only in one of the two letters it doesn't get you past the other letter  us something that can't be decided is a matter of law yet we are not objecting to the story that you heard and what was in the mind being presented to the jury we did not move for summary judgment that that waiver been done as a matter of law that we said this is a fact question a jury should be able to take them at their word and it's especially i think the letter should be interpreted in light of the one nine hundred eighty nine meeting the one nine hundred eighty nine meeting the testimony is they said handle this how you see fit so just to try to say that this was this was out of the blue or strange to have included that in the letter it's entirely inconsistent with what we had been orally told it makes entire sense to put that in there the first the first statement is a broad boilerplate language we just generally reserve every right the next sentence of specifically speak specifically waive these two rights and they're the same two rights that we had reason to think it's already been rave we've orally you know travelers keeps asking to draw an inference as to their actions they didn't consistent with the position that already taken in the reason they had and this gets back to those seven other letters the seven other times they provided a defense whereas in the litigation in one thousand nine hundred three travelers took the position we defend lawsuits we do not defend environmental proceedings that this court rejected that argument post our nine hundred eighty nine meeting in avondale that's why we when we're in the realm of what inference should you draw from the other seven letters they want you to draw the inference that we could never receive this because if we were to receive this we would have provided a defense we will tell the jury that in an reasonable inference you can from their own testimony from the way they handled avondale the other cases they had a policy of not defending these cases and then to claim that they would not have understood they get this package they would have understood the significance of the one nine hundred eighty three p r p letter it's in the record eleven hundred of those letters went out travelers established a committee division inside their company to deal with those letters this was an accident if it didn't exposure to them because many of those eleven hundred policyholders or those recipients of the letters many were travellers policyholders they knew the significance of this letter and the significance of the letter was clear from its face and in fact if you look at the proceedings over the last thirty years they've played out exactly the way the letter suggests information what typically happens is they come back and ask for additional information to impose a burden on the outset we were not aware of any case that had done that but on that point i moved to the notice of occurrence as the century and this is a could this is a critical point the issue when i was going to address whether or not notice should have been given as to occurrence for century prior to nine hundred eighty three there is substantial evidence and this view in the view is shared by travelers by the regulators that hooker was responsible but let me let me just lay out first what i think you the legal question the question is at what point was it reasonable to believe that true gromit would incur a liability that dated back to the fifty's and sixty's there's no issue as to notice of occurrence as to travelers the current insurer because  seventy's right and the point travelers i'm not sure the great with that tell us what your argument is with respect to century right that in the seventy's there this is pretty circle of if there was going to be liability it was going to be imposed under tort law it would be imposes nuisance trespass there it is critical who was the polluter there's no retroactive strict liability notify because there wasn't a reasonable belief that we that growing would incur liability for any practices that happened in the fifty's and sixty's if someone brought a tort suit which we did not have any reason to expect they did that would have that would have triggered travelers policies that would have related to our current insurers is that if if tomorrow i got in a car accident i would call up my insurer and inform them i wouldn't call up my insurer from ten years ago the last and tell i had some concluded that we could have our position is that it would have been reasonable to think it would have implicated the policies of our current insurance policies dating back to decades earlier right let's let's move forward to  m in the copy that you sent of the nine hundred eighty three communication century argues that you can relate to their policy and that seems to be a requirement of the policy how was that notice satisfactory then we don't read new york law and they haven't cited a case saying that you have to list provide the policies unless the policies and identify them and in fact there are cases in which a policy holder has received coverage when the policies were did not constitute notice and to the liability policy even though both policies were written by the same carriage carrier each policy imposes separate contractual duties to provide notice that would seem to support centuries argument that they were titled two distinct notice not just a carbon copy of a letter that you sent travelers but the but they got they got the letter and they got but it doesn't h red it's putting you putting them on notice that you've told travelers that they've got their liable under their policy but i mean the evidence shows that this was a was a common way to notice claims at the time t york says that if you allude to one policy even from the same characters the carrier it doesn't it doesn't provide notice that you're seeking under another policy i don't know how a letter that refers only to travelers policy put century on notice that you're now invoking their policy because we sent we sent it to them and there's no allegation that there was different types you didn't send notice to them you sent them a copy of your notice to travelers but our obligation was to forward the claim we did not need a cover letter as your policy say that you have to allude keep the the policy now i think so ok ok ok we take the position that forwarding the claim was sufficient