the morning of may it please the court i'm david alkan and i'm representing the appellant new york state electric and gas corporation the district court's ruling should be reversed the insurers recognize that the court construed the evidence in their favor on their summary judgment motion that was ever to focus now there we listed fourteen separate reasons why all three of the notice ruling should be reversed i want to focus on the three morse important ones because they apply to all three of the rulings the first point was the department of environmental conservation or e c may no demands are nice like that would have required notice the entire time there were two relevant communications both with the same of level employee walter demick the first was in october of eighty six when he insisted that nice to continue their investigations we set forth many reasons why that wasn't the claim under the policy and then three months later he wrote nicely to say their investigations were satisfactory the next relevant communication was six years later two years investigation and come to ny city as a responsible party for reimbursement that the one that you and i don't believe he said as a response we're proud to say will come through for frequent that's internal nice memorandum that's right and nice it was already investigating those sites and i believe that was a warning and then in hundred seven there's a letter to ny c telling lies to submit plans for oversight and the consent orders would be hands handled by d c lawyers that also that's correct a couple of points that the gentleman who wrote that letter in january was the same gentleman that purporte made the demand in october of eighty six his january says nothing about demanding that they consider their investigations iana point is he says in the letter to any mediation would be handled under a consent order which nice to go is expected but nothing happen the next relevant communication wasn't for six years there is no case involving notice relevant communication what is a relevant and what anything that involves the d c even suggesting that ny sig take actual measures to d c when they wanted something done always used a consent order they never even sent a draft consent order to nice nick they were happy apparently with ny six investigations the d c is a bill that a compelling thing was engraved out at this point that's why when they wrote nice of the letter asking them to negotiate a consent order dating to standard practice naming them a potentially responsible party they said would you negotiate with us it was an arm's length negotiation for a year because nice it could have area i will agree to notice should have been well i would agree they have an argument an order should have been given and they declined carver so long ago we couldn't pursue that claim with respect to the issues involving the operations area nice it was  contamination and from one nine hundred ninety six and they've given notice of the consent order in ninety four in ninety six when they found out about the contamination they were giving updates on a regular basis to the insurance companies which would have included plattsburgh would have been the equivalent of notice although nice it's not an insurance company the they didn't label it as such but when the insurance companies didn't even respond to notice in one thousand nine hundred four the consent order and i think didn't have to give them notice in ninety six even though we believe they did the test is whether the circumstances known to the insured would have suggested to a reasonable person the possibility of a claim against the insurer right know that's the test for a primary policy that's only for profit or wrong i'm sorry it's only for primary pilots claim against it would likely exhaust its primary insurance coverage and trigger its excess coverage and that's consistent with the second circuit's decisions in w r grace and in the all in cases bill is the second circuit decisions and federal law in vegas really is not relevant the real relevance is what new york lawyer has and i gotta say that i have a great problem figuring no what we appropriate standard d is under new york law because you say that what he does appear for an ordinary policy doesn't apply for an excess of the language is clear as to an ordinary policy excess you have this case it says something that i don't really know that something of this sort would not be what it what does it mean to say in a situation like this that the claims are not likely to go beyond the ordinary policy there's many ways to answer that first of all clearly access policies are different than primary policies number one not very different but every different enormous requirement to the reasonable is likely to tap into the excess ok we're talking about occurrences here that resulted in and were i think reasonably perceived as resulting in a serious environmental damages worth millions of dollars i have so many responses so that me trying to get all of them in my u r l is lights out about her is that wal mart's part makes clear to has to be a claim against us reasonably likely to reach the access policy the trial court said possibility of a claim that's a different standard the wrong standard second of all what we were going to give notice of every investigation we did that went the furthest sort of risk assessment phase left with our environmental consultant saying don't do anything more you say that it is not occurrence and that's a different question and maybe you're right but that's you know before you are saying that you had to have a claim that would go over that's not what you're saying i'm saying all of that number one we didn't have a claim number two we didn't know of an occurrence so we didn't know damage happened during the policy period there were no demands by the d c for us to do anything they spam the district court with two hundred  fifty six exhibits it was one letter asking us to do a partial investigation on one side the d c never demanded anything they never discussed remediation of any of the phase one sites with us before we signed the consent order into much after that actually we didn't over an occurrence we didn't know if a claim the earliest we might have had a claim maybe was when we agreed to sign the consent order in ninety four we give them notice before we sign that promptly and even then we didn't know of damages that would reach good morning runners may please the court john hacker for century i'll be doing the first five minutes and then mr net burn will be handling for one beacon for the other five minutes to go straight to the question of the legal standard i think the easiest way to address it is just rely on the length of the policies here and not get caught up in verbal formulations in the case law the policies here require notice on ambiguously whenever a claim whenever an occurrence is quote reasonably likely to involve the policy so that's the question is whether it's reasonably likely to evolve the policy in that's exactly what the court below applied don't think you should be uncertain i think the span is perfectly clear that the common law rule requiring an affirmative manifestation of an intent to waive the span that's the court of appeals decision that says the common law rule applies and requires an affirmative clear intent to w but more importantly more importantly this case is an easy one whatever if your honor has difficulty understanding what key span says it doesn't matter because in this case with respect to century they're only argument literally the only argument that we waived it's mind boggling what they say is we waived because there was a draft letter that listed the potential defenses including late notice the didn't get sent out they said because there was a letter that was not sent that that was a manifesting intent to waive an unsent raft letter doesn't manifest anything at all when in fact what we did send out were clear reservation light letters reserving rights including the right to assert a late notice defense that's what was manifested the fact that we internally had a draft that explained without contradiction the reason was a draft letter that mentioned it was mr snyder right had the plattsburgh draft actual disclaimer in front of  began to write a letter responding to the other sites and then learned that they'd want a certain claims of the other sites so we never finished it and you are saying that there is enough of an occurrence with respect to the sixteen not phase one as well and judge mcevoy lumps everything together i mean i see his situation with plattsburgh which is a very looks like a pretty easy one depending on whether you get  consent order issued on plattsburgh based on the exact same kind of bird no but it's the same it's the same contamination right everybody acknowledged under the plattsburgh consent order that there was legal liability for the contamination of m g p and if you look at the these other things gee something might happen better that all the insurance companies will long before anything good no i'm not saying that all your items and matching the pusing plattsburgh answer the point about the idea that there wasn't you know clear regulatory authority of course there was that's what they were negotiating and talking about through the eighty's starting at plattsburg was d e c imposed liability through consent order for m g peak coal tar contamination so we know there is potential legal liability to the facts your honor to the point about it your question i guess is a hypothetical because it has nothing to do with this case this is not a situation where there we don't know what might be going on if you look at the documents consistently starting with the one thousand nine hundred six memo which you'll find it a seven  five they explicitly say if nice it does not investigate the sites d c will do the investigation and come tonight as a responsible party for reimbursement that's nice a saying they're coming after us unless we investigate you see it over and over again document that i was referring to that describes all the sites the nine hundred eighty nine document in particular nice a budgets twenty five million dollars around or twenty five million dollars to investigate in remediate to avoid and minimize liability again it's not gee something might never please the court my name is peter net burnette i represent one beacon american insurance company i'd like to just jump into a couple questions that the court has asked and i think it shows in some ways how both one beacon is policy sits above no dollars of primary property damage coverage it sits above a twenty thousand dollar self insured retention it is effectively primary coverage the other important thing to note is that the one beacon policy requires notice of an occurrence as soon as practical but it's very different language that is the language of the one beacon policy the other quick point i'd like to make is with respect to you judge calibrates it was the issue of going from the six phase one sites to the twenty two sites and in its motion for reconsideration before the district court nice big ass concluded the motion by asking the district court and the easiest way to apologize is to read what nice except it said nicely it respectfully request that the court amend the judgment to resolve any ambiguity that applies to all the sites at issue in this section this will enable my sig to proceed on appeal now that's exactly were we we are you're right or they're certainly nice it is certainly entitled to raise an issue as to whether or not there was late notice of claim or late notice of occurrence but the expansion of six to twenty two that that issue is waived however there is certainly evidence in the record to support all the non phase one sites that there were occurrences and that there were claims as far as occurrences as of the time that notice was given nice we could spend four million dollars just to investigate in remediate fifteen of the sixteen phase one sites the sixteenth site is is quirky and they had no access to the property so they couldn't do anything for the a we go site they had already spent five hundred seventy seven thousand dollars on the site and you can go on through every one of them there in the record every one of the sites summaries that were no your honor it starts a lot earlier than that it starts in the late one nine hundred seventy s early one nine hundred eighty s for nice to get started with the plattsburgh state moved on to the lockport site and those two sites informed nice it had a very significant and g p pollution problem at all of its sites and then in one nine hundred eighty six the e c can't this is all based on the reading of that language and of new york law that says if i've got a problem in one place and that makes me think that i might have a problem in others even vote nothing has happened specifically with respect of you others let's assume i have to inform the insurance policies or i lose my policy  that's that's a strong statement that's a strong statement and if we think of it not just in the particulars of this case of i learned that there is an accident accident law has changed so it's something that i did maybe an x student and one and i have to think about all the other feelings that i have done that then i might be liable for or i lose my insurance even both no one has come after me and those you know i don't say that that couldn't be new york the law i just i don't see the cases  that a reasonable person certainly would have been on notice it would have suggested to a reasonable person the possibility of a claim oh wait you have you have the byproduct of a plant is this extremely toxic substance that contaminates ground water yes on and that's true of every plant that they operated right they all made the same stuff yes your honor and so knowledge of this problem in one plant put them on notice for all the plants right that's what you're saying no your honor no what i'm suggesting is that plattsburg and then lockport and then nice take the documents show began to investigate more and more of its sites over thirty eight site it began investigating developed an m g p investigation plan to investigate all of its sites it's not the experience at just the plattsburgh site that's what got the ball rolling internally for nice and they realize there's a very serious pollution problem and there's a potential there is a potential for a pollution problem in every one of our former m v p sites to cut through all these  issues that have been raised under a late notice of claim and l's yes your honor and the statue of limitations the statue of limitations i think in some ways is the easiest they signed a consent order for every one of their sites to investigate and remediate if necessary and to pay the oversight costs of the d c in one thousand nine hundred four he was ninety doesn't  because if you're in a way say that they haven't even the didn't even give notice that they didn't even make a request so it's kind of hard for me to see the request having been made and having been  possibility and the potential of her claim that doesn't apply to an excess policy he says fit their policy he says their policy is in this respect to be treated the same as  access policy a bumper twenty thousand dollar retention that's an excess policy and you can tell that because it doesn't have a duty to defend that primary policy sabots clearly an excess policy they've conceded that and the law is excess policies have a different notice requirement despite the language almost centuries notice requirements were established by the appellate court in brooklyn union and they can't meet that test what if policy itself has a language if somebody you save in new york that policy leg ridge to require that kind of notice we have a policy is in fact a nexus policy every new york decision in this court and in the appellate division in excess policies have a standard that's where the damage that was being looked to was clearly above the twenty thousand dollars no that's not true because we didn't even know damage had happened during their policy periods about what you know will be the liability it's  what is likely to be the liability you're saying that it wasn't likely or probable that it was going to be more than twenty thousand dollars in their policy years we would have no way of knowing that our people were charged with determining what is there and how we get rid of it when it happened and how it happened they were not experts that's why we hired experts in this case but we would have needed a claim under morris park reasonable rightly to reach the access policies when even though there was damage during the and let me say i want to claim case right and that's about a notice of claim policy right no it's not it's about some our situation as this but another point is they made a big deal out of our budgets our budgets for investigations which we were doing three hundred fifty thousand if something was remediated which wasn't going to begin to the year two thousand it was four hundred thousand dollars under new york's allocation law with these sites having over one hundred years of damage or plattsburgh maybe ninety six we would not of how to claim reasonably likely to reach the access policy until we had over two million dollars of damages plus liability none of that happened and we didn't know damage happened during the policy period that you say that morris park is not or it's just that morris park is not a notice of claim case i think the court's decision i believe construe the notice on the currents requirement if i'm wrong i apologize but clearly the court of appeals decisions that this court's decisions in or and w r grace handled that but the question be sure you paint a different picture of what's going on and tell me whether that is wrong you have this problem and you're digging into it and as you go along the cost of remediation in the number of places remediation gets worse and worse and worse and worse and that point you start to look rather desperately as to who can help you with this whether the state can help you with abuse can help you and it comes to mind that it's some point there were some insurance policies the exact names of which you don't even know we don't have them but oh my goodness there may the only place we're nice it ever had intentionally dumping and clearly the case law mandates two occurrences there but on top of that the only there was only one other site where we had done remediation in fact nysa gave notice to its first layer insurance carrier at that time he just expecting them to provide coverage ok and that was it but there was nothing else nice it wanted to work with the d e c that the seat is who refused to move forward and we knew at some point we may have to remediate the sites twelve years in the future when you say the d c s when the who wanted to move forward why is that not a notice of claim under new york law that d c didn't want to move is what i'm saying ok we want to talk to them and nothing happened they testified that when they wanted something done they sent a consent order that's how they work we didn't even get a draft the problem is that the receipt so i think we have your your argument and i said one question  seventy s when the primary carrier ages gets notified right it's current then current first letter carrier which is a very unique insurer they insure a public utilities and they offer like thirty five million dollars of coverage so