having moved back to come up to number one we will now resume the regular calendar and we'll call he steve's development versus happens to an insurance company employer's liability exclusion in a general liability policy which excludes coverage for bodily injury to an employee of any named insured is ambiguous as a matter of new york law and my argument to have been stood on that issue is really very simple there is no case law support or other support in new york law for reading about exclusion from for bodily injury to an employee of any named insured as ambiguous do you see any named insured i see the named insured all right employee of the named insured that's what it says right it does say that ok so now you got to tell me about substituting the definition but i don't think it substituting i believe that it's it's employing or explaining the meaning of the word employee in that in that phrase and i want also to observe that judge that below also read this this definition to me in an employee of any named insured and that and that when inserted into this paragraph one of the endorsement that's the that's the proper reading what judge but it's substituted into the provision that i just read it would read an employee of any named insured of the named insured isn't that what happens if you substitute the definitional for vision into the actual text well i would suggest a reading of an employee of term typically you move that definition into it to replace the word that it defines right so your honor saying is an employee of just i understand your order saying well if you're saying the word employee means a member so see at least worker temporary worker etc of any named insured then you would substitute that language for employee he wouldn't you other cases say well i believe it's the functional equivalent otherwise what's what's the meaning of the definition when you look at the dozens it's what it says is whenever the word employee appears it show also mean a member associate at least worker temporary worker of or persons loaned to so it seems to supplement the idea of employee with people who aren't employees but our person is in fact an employee  of another named insured right he's not i don't know what it exactly what these things will mean a member associate least worker but these are all things that define people who are not employees as employees if i may with respect your honor i believe that their reading reads the word employee of the definition an employee obviously must also mean an employee but the employee in the provision refers to an employee of the named insured the problem of you've got isn't it is that you have to show that your reading is unambiguous right well i believe it is not ambiguous and i believe that where the district applies a matter of well yes if it's said in sub her graph one there an employee of any named insured you'd be exactly right it would be unambiguous and we wouldn't even be here and you would even have to resort to the the additional definition but if the problem is it doesn't say that so now we've got a problem with defining what the named insured in a clause that also refers to any insured and also in another place uses the language and the named insured and you would agree that it's sort of an odd thing if you mean to say it shall apply it shall exclude any suit out of bodily injury to an employee of any named insured it's sort of an odd way if you want to say of any named insured resort odd to say the named insured and then have another provision that seems to exist for a rather different purpose as the way that you get any named insured into language that could just as easily have said employee of any named insured the way the ones in the cases do well i again i respectfully disagree because i believe that all the portions of the endorsement must be read together harmoniously if they can be read together harmoni and i believe they can in the reading that that i'm suggesting i would also like to direct the court's attention to the nautilus case which was cited in the in the briefs and discussed in the briefs which which i believe is factually the most decision i have a lexus site two thousand and twelve u s district lexus one four eight seven one four where there was an expanded definition of employee which also suggested or  surprised by it what judge spat said in his decision on that issue was that the relief had specifically been requested there that there had a good offer of proof about about what those damages were what those costs were and and executive order a judgment of money judgment to be able to get that relief if if judge but never instructed evanston to start defending hastings i don't see that there was a predicate for for him to do so having considered the issue  district court of included and a declaration if we disagree with your primary point if we agree with judge matsch shouldn't he have included a declaration that you had a duty to defend wouldn't follow it for sure direct modification of the declaratory judgment to include a duty to defend that would still be something different than entering a judgment for damages yes and yes if if this court amends the the order to require a defense i would look at that as a defense going forward as to what the plaintiff might be owed for past offense because that's something they would have to get a judgment for that have to document whatever those expenses w but if there were a duty to defend it would be a duty to defend initio right not just going forward if that's what the court or that's what the that's what the policy requires and in other words if you were if we disagreed with you about your primary argument i understand you argue that you have no duty at all in this case but if we agreed with judge spat about the principle holding i'm just having trouble understanding why there would not also follow that there is a duty to defend and then yes  just to try to come at this one last way and i will let you sit down because you were to reserve sometimes rebuttal if we agree that there is a duty to indemnify then concomitant with that under new york law certainly the law of vermont where i've is asserted that every word has meaning in its exclusion if we accept the position that any named insured is what was contemplated despite that it was not stated it would subsumed of the names as your language would render it meaningless it would have no effect in this action and it certainly is not any justification for an exclusion i would add that there is a potential explanation although it was not raised by council of what an interpretation is that merely the employee definition is to show that seasonal type workers will be included in the term employee for haps so that they can get workers compensation is that is the intent of the policy exclusion it's if you get workers compensation because you're the employer as universal photonics is then you have coverage under your worker's compensation you don't need it of the fence in the case the case is still ongoing it has not been litigated to finality that issue is in there however the facts that came out have rendered that possibly a moot issue because it's been determined that hastens has no employees has no office it whenever there is whenever we use the word employee it also means pretty much anybody associated with any named insured why and why isn't he right about what that means but i think as you're going to pointed out it would require a reading that it would be that you know when you say it would make the out of that language meaningless i suppose it's not unprecedented that a contract uses a word that might seem to mean one thing and then later it's defined to mean something much broader than that that doesn't strike me as ellie and my experience of reading contracts well you i believe that that that brings us to notice which was pointed out by counsel i don't think that this is that circumstance i think nor this could be that sort of no less we have really specifically says that when you use the word in short as opposed to any insured there's a distinct difference there and so to put both of them in the same course is on its face any name then sure if it's right if so that's the circumstance where perhaps it could apply that is not this case you or i know why would make a difference necessarily but that in effect is substituting any insured for the named insured pleading stage so we believe that evidence would have been for forth we believe the fact that we had taken the totality of circumstances they didn't reserve their rights and assume to the feds they require they're insured that they wrote a policy naming them as an assure that require them to go out and understand it would be hell to approve but this was the initial pleading we did get a chance to go beyond that and as a matter of law is it your contention that if we find that there is going to put it clearly ambiguity in this that would put them into bad faith in other words that in deciding how obvious it is that there should be coverage we should also find it obvious that there's coverage when it's not obvious but it is  i think that's really passes the pleading stage whether the intent of so forth can be proven at trial or in a motion for summary judgment is a different issue but i think it passes the pleading stage you are the the other issue on the defense i don't want to go too far into it but judge that made it very clear what his intent was in addition to what we all know to be the due defense being brought up and subs and included in them that he specifically stated in his order that we were entitled to exactly that you would be asking us to direct you if we were to agree with your principal argument that there is a duty to indemnify and further conclude that as defend and a duty to pay the damages for the previous defense cost reimbursement of all the fence costs and that would be a declaration and to the extent that you wanted to reduce that to a money judgment some further action or some further activity in this case is what you need to do yes i would assume that i could sit down with counsel we can work out what would be reasonable cause and resolve it if not i would it would require an additional action or a real thing of the case i would assume but at this point we can't there are things going on the motions pending in that action right now and then maybe a trial coming up this summer in that case it keeps going and i did in fact produced produce a story on it i did in fact produce a letter to counsel advising what the course when we have the judge that's what it came down and we couldn't agree before joyce did you say we also are seeking obviously defense cos here's what we've got so far we'd like to further opportunity of the motions granted to su were entitled to reimburse me we're hoping to to get defense in and going forward and then reimburse when what's been paid to date and just bad did not amend the judgment what you're what you're actually asking for here and i take it from the beginning of the sure that would why wouldn't that be enough if it just says they're supposed to defend you and they haven't done it then the next action is some action for or for damages for that br insured these as a as i said earlier there are published cases in new york where these two phrases appear together and employers liability exclusion i understand that that's not this case but there are cases where they do appear together my office actually a nother case before this court recently where judge but also the judge below had had read those two phrases to mean something different the named insured and any insured are two different things one is obviously more expansive than the other and judge that in that other case actually expressed a doubt as to whether whether the named insured is subsumed within any insured i believe he was wrong about that but but they are phrases that have different meaning in so having them together and we decided that case that you're talking about i believe so it's not my case of one of my partners handled it you reference it did not because we had the previous long been done before that place and you had to get back to the office would you send us a twenty eight j letter please just named insured arising in the course of employment by any name by any insured and so there they clearly mean two different things and the two the two provisions and second one is brock any insured are broader than that in detroit agree with that and any insured is broader than any named insured because any insured would also include subcontractors and so on who would otherwise get derivative coverage in the policy i agree that's what the case law says  if i may just touch on a couple of other points very quickly one is that your honor in questioning mr janice as to question that that had slipped my mind which is that the the scope of the duty to defend obviously is the four corners of the complaint and under new york law and hastings was alleged to be the employer in that or an employer in that pleading and the determination of a duty to defend in the first instance is just by comparing the provisions of the policy to the pleading that's presented so here making that determination that there was no duty to defend in the first instance i believe was correct based on the allegations all even the alternative pleading that both universal photonics and hastings were employers compensation bar so that words cohen just looks to workers compensation of against both for trial and hastings that triggered the duty not to defend is that what you're arguing is this is the flipside of a duty to defend is when you look at the underlying lawsuit when the typical one is if the allegations in the underlying lawsuit even if not true trigger the policy coverage you've got a duty to defend that's kind of the basic law of i think all three states represent say that the underlying policy underlying complaint says he was an employee also hastings that means the assurance company doesn't have a duty to fight don't you just said i would say that that's correct yes that the insurance company doesn't have to d would call to duty not to defend i believe that the contractual obligation isn't triggered in the first instance but that's not an argument that you made below no no no your honor if i may i realize that i'm out of time just just  action for insurer bad faith where the issue is is an incorrect coverage determination without admitting or conceding in any way that that evanston is cover determination since it's wasn't correct even if it were thank you thank you and thank you is to thank you both reserve decision