to which policy should be primary for a bodily injury claim that occurred at a construction site as typically for seen in insurance situations when the lawsuit was brought by mr price he sued south nassau community hospital where the work was being done as well as a contractor support an insurance company who insured the plaintiffs employer roadwork in two thousand and thirteen sparta accepted technologies tender in accordance with the terms and conditions of the policy in the contract which we have argued is a reservation of rights it's not a very informative reservation of rights i can see that it could have been more through always the case i mean you have a contract and everything is in accord with the was when they were written to afterward say i appreciate the you accepted this without reservation there was no response to that letter direct your honor and we're not we're not disputing that and the adjusting process the handling of this could have been clearer could have been more we don't reserve rights against another insure against an insured well that's good art and that's good it an interesting question your honor because we don't are the crux of this are the crux of this this appeal the crux of this claim really doesn't have to do with the reservation rights because when we then put that aside well we're not i'm not conceding the fact that this if there wasn't a residence i don't understand you you started by saying there was a reservation of runs correct that's why i asked can there be a valid reservation of rights as against makeup and other i'm sure as distinguished from an insured i don't think it's necessary your honor and that's what i when you say it's not necessary that sounds like we don't have to worry about reservation rights and all this to court to know your honor so that you're here arguing for a reversal correct you know i'm trying to understand do we need to determine whether there was a valid reservation of rights or i do you now stand there and say it is that irrelevant to those that you know well i think the appeal has many different levels of no question but is reservation of rights relevant or not assuming that as we have argued equitable stoppel does not apply between two insurance carriers when it when one when the one sport or in this case is not attempting to disclaim coverage then the reservation of rights doesn't matter because if there is no equitable stoppel between these two sophisticated insurance companies then the coverage question where the rights reserved well i think then one of our defenses would be that we did reserve rights and in that case we would need to know and there be a reservation of rights against and i'm sure i don't think there's any prohibition against necessary when you're dealing with new york law which this case is subject to one of them to prompt disclaimer of coverage statute is insurance law thirty four twenty and that's if there's a bodily injury claim and an insurance company is put on notice they have to provide a prompt disclaimer or they may lose that ability to raise that covers offense your honor i think maybe this will answer your question under thirty four twenty there is there's no requirement between two insurance companies to promptly disclaim coverage and again start insurance company has not disclaim coverage we're just  spire having assumed the defense without without asserting the up the other insurance clause and bring in technology if sparta had hired a moron to be the lawyer defending the claim and the claim had blown up into a gigantic judgement wouldn't you say the technology would have been would have been a prejudiced and indeed through through sassy brothers it's it's insured but that's not what happened here the attorney that technology had initially hired continue to defend the case so it's not as if an error in it an adequate attorney was retained no it isn't is if and i agree with you that's not this case but i don't see how you can argue that there's no such thing as a stoppel between what you call insurance companies but the insurance companies are actually there representing the interests of their insurance and so i'm not sure you can tease the insurance companies apart from from their insurers and i think to contribution is being sought from nor seeking a contribution that's a fifty percent contribution is that because technology also has another insurance clause that makes it makes it to access to any other well the insurance our argument is that the sparta policy deems it's other insurance clause deems it to be access to technology zone coverage that's technology have a have a similar clause their clause says no they don't have a similar clause their clause says where access if their name insured stasi is provided with primary additional insured coverage our argument would be the techno and the the sparta policy does not provide primary additional coverage therefore sparta is excess but there is a real possibility that this could be found if we got to the point which you disregard didn't that it's a fifty fifty did technology take on the the owner of the property owner and as an additional insured would and i can back to the state statute the thirty four twenty which you say applies to this case it does not apply to this case because this is a case between two insurance for your not relying on not not at all  correction of the record because it is i think very relevant to our discussion counsel has repeatedly stated here and in the briefs that the tender which spark accepted came from technology that is false page sixty one page five nineteen of the record  tender which sparta received was from its own in shorts it was from stasi and it was from s n c h and that is where thirty four twenty comes in because a tender from its and short additional in short coverage but it is it's insured triggers its obligations triggers sparta's obligation to respond to that tender on der thirty four twenty which they did and they did not reserve at which point they locked in the following scenario they accepted a tender which was for primary coverage keep in mind here they don't get to choose the nature of the tender they get to choose the nature of their response the tender was for primary coverage as additional in shorts that is the tender which they accepted without any kind of a serious reservation of rights and i am happy to talk about that but there's no there's no specificity at all to what they are now claiming was a reservation when they have had to do that immediately you could be taken they can't take it and speak and somebody is out there peril and you take on their defense and you look at the policy doesn't you under new york why does depend somewhat on the fact they did a supplemental what they now call a supplemental reservation when resents almost a year later but this is nothing nothing happened in between the time of their initial acceptance of the tender and the time that they realize they did it wrong to do aspire to have access to the technology policy sparta knew that there was a technology policy and then not requested the technology policy for over a reflect that they were insured by technology and in fact it was in communication with counsel who had been retained by technology at which point sparta says no no we'll pick it up and they do and they directed the fence away from their main insured which is their right to do because ultimately it's all going to come back to them and that makes sense they avoid having to hire second counsel they avoid all of the cost of that but in the process of doing that what they're doing to their additional insured is putting them into a corner where they can employer the employer is and is the primary insured for sparta so if that third party action had been commenced that what sparta would have been stuck with is having two sets of lawyers one for s n c edge is that the complaint that was drafted that is exactly that is the third party complaint that was drafted shown and that and said and we and i said despite a listen this is the way we're going on less you're going to pick up and sparta says no no we'll pick up and the third party action is never commence they are very actively and that is their right to directing the litigation away from that third party suit and that's fine but what they can't do is reap the benefits of that and say equity doesn't apply third party suit would have been a suit by the owner and the c and the general contractor against whom work against the subcontractor who can't be sued by the plaintiff because of the employment relationship so this is a fairly common scenario when you either party the man or you don't a lot of the times you don't because they're insured by the same company and again i have no issue with that other than to say that under new york law it is absolutely settled under liberty under unix but that there is of course equity applies in between insurance companies and so since technology provided counsel to s how can it be said that stassi or technology suffered prejudice by being represented by counsel selected by sparta i'm not saying counsel  was bad if they are going to be represented in a way that directs them away from the third party action where they are now is they can bring in the third party action that has very significant cost and very significant risk to them because of course they can sue still the qantas sub contractor but they have to do it in a separate suit and that is a enormously costly and b they face the risk of inconsistent verdicts because they have statutory liability in the main suit  absolutely that's not the way we're going to go they assume to the defense they want to different way that's their right that's mine but they can't say now that equity should not apply after having played all their cards the way that they did they can step away from it and say here we switched up the deck you can have it technology having let them direct to the defense relied on that acceptance to its detriment so when they didn't reserve to the insured then after that they were locked into their position of being the primary insurer which was the that the tender came from their insured so that's that's critical because they don't have to respond to another insurers tender the same way but once they have authority for twenty duty to respond to their insured that blocked in their position they they don't have they can't talk to out of both sides of their mouth they can say to their insured we're not reserving we're representing you primary all of those things and at the same time say to another insurer i know i said to them that we're going to be primary but we're not some point somebody is going to have to tell the insured that is the functional equivalent of now disclaiming against your insurer although you're doing it the long the long way around but that is where you're going to trial in the underlying case seems to be perennially on the verge of being dried the received there were procedural issues there was a bankruptcy by another insurer then there was a stay because of all of this but but let me say this the note of issue has been filed the third party action there is no new york court that would allow them to do that now they're going to have to do that in a separate case if they ever have to go down that road if that's you know what i'm sorry if they ever want to look for a contribution towards the plaintiffs employer that can no longer be done in the context of a third party suit within the underlying action that will have to be done separately and that precisely is the cost and the risk that we're talking about when we're talking about prejudice bassett is the evidence technology uses gallagher bassus existence to show his knowledge that that technology existed gallagher bassett was technologies representative ag the tender came from technologies agent on behalf of the insured but from their region it came from the insurance company so i would disagree on behalf of the insurers that would be well but not from them and it was on their behalf but really for the benefit of technology to get this claim off of technologies policy like you said it came on behalf of the insured well has a new technologies not according to the lawsuit so they couldn't have t companies this is a claim as to which insurance company is primary and which is excess this happens every day of the week if an agent on behalf of an insurer contacts the insurer doesn't that trigger the statute though i disagree i think zurich vs liberty explains that you know i think that we we do argue that in our brief and i don't think this becomes an issue of thirty four twenty applying  conclusion we hear a lot of complaints about inability fall third party the third party complaint and that discovery is now closed but remember technology was approached back in two thousand and fifteen to try to to to address this issue discovery didn't close in the underlying action in two thousand till two thousand and sixteen the underlying actually still has not been tried i don't see how technology could be found to have been prejudiced by this if if an agreement was reached that there party complaint could have been brought so i have a hard time accepting their arguments that you think you for agreement had been reached it could have been fought well that's true  everything but we did not rent we did not approach them when discovery was close we did not approach them at the eve of trial we approached them while discovery was still underway this third party complaint could have been filed if technology did what we think they should have under their obligations under the policy thank you thank you thank you both what was their decision