forward with evidence proving its claims as a matter of law only if israel satisfied that burden is it necessary to scrutinize westcoast opposition likewise if israel failed not only fail to satisfy that burden but in certainly not disputing the fact that there was we're not just putting the fact that there was coverage on the west coast policy what we're arguing instead is that for holly's villa two of satisfied its burden it had to establish that harleysville had its want to defend it well i'll play i'll play it out for you judge what what what would have happened what typically happens in these situations is that the insured enters into an agreement with the claimant with the underlying plaintiff to say ok we are liable for x amount of dollars and in exchange for your the plaintiff's agreement not to execute against us for that for that amount we will assign to you your our rights under the policy or policies that we believe we're entitled to coverage under that's how these planes things play out so and then insurance taken on a considerable risk insurance agreed to pay somebody money without knowing whether either one of the two insurance companies is going to step forward to pay ok here are the way this usually plays out is that coverage that covers the claim it will get paid this is an unusual case where there were two insurance companies who were fighting over which which company had the obligation to pay but the again the bottom line remains that there is no dispute that there was coverage here there is no dispute that holly's bill had no duty to defend or in this in this arrangement that you say is common i for one and the and the deal is that the the off the hook there are a few ways that this narry can also play out what also happens if the insurer gets a disclaimer of coverage that believes in correct obviously you can always sue the insurance company for a declaration in fact that insurance company owes coverage very nature that judge but always the case sure but the very nature of voluntary payments cases such as this is you have one party who did not do what they were supposed to do and one party that stepped up and did something that they didn't have to do this is the nature of voluntary payments cases this is what we have here we have a party that had to do so and went ahead and made a payment is now asking for the other party to pay them back but that again that is the very nature of liability that is a statement that there is no way that anything going forward will change our mind they still have the duty under the policy to provide notice of the suit and if they don't a question of what his bill did the question is was and the standard under the statute in new york statute is did it did the delay material materially impair the ability of the insurer to defend the insured was stated below so that there's certainly not even a dispute over whether that there's an issue of waiver as far as that defense is concerned the other arguments again have to go to the go to the issue of whether harleysville established its right in its moving papers to summary judgment argument is that they didn't because they did not establish there was an implied in law a contract between harleysville and wesco because by harleysville is an admission they had no duty to defend or indemnify and in the case absent that duty there is no implied contract so it's like if this was a contract action and the movement said made him made a move for summary judgment breach of contract but didn't produce produce the contract regardless of what arguments were pursue wesco was not raised below however by them however we did put in evidence of an assignment of rights we did put in evidence of our contractual and equitable rights of subrogation and we did put in evidence that we have our own our own personal claim based on unjust enrichment in equity all of that was before the district court at least in some level because she noted it in her opinion that we have rights of assignment  have the moral high ground yes it is you have the legal high ground because your adversary says that they are entitled to notice of suit which is the thing for notice of the occurrence yes and that they never got it and that and that that is a matter that is prejudice is a matter of law so let's let's that's go into the late notice argument let's shift to that he did give timely notice of the occurrence we know that he did give time you notice of the state court action action absolutely nothing they were given notice of the state court action in january of sixteen they did absolutely nothing and continued to deny coverage up through the settlement of the underlying case and that that's what what judge  below found so compelling both on the on the on the notice issue the fact that they were not inviting a reconsideration when they originally denied coverage but also on the practice issue because the proof was wesco admitted it got notice of the of the second suit the state court action in january of sixteen this is nine months before the summary judgment in the federal court action wesco did absolutely nothing that in your view is evidence that that they went and that there their denial was not the quizzical and that the insured had no burden to go back to them and say do you really really mean that you're denying coverage are you serious about that but there is evidence by the way not to repudiate the repudiation there's no doubt that they repudiated this and we put in our brief at least twelve times they repudiated coverage in this case and in fact they didn't acknowledge that our policy does not have any obligation intil displaying during its appeal this so they kept saying no this is your problem here as well not our problem and they bury their head in the sand now there is no there is evidence in this record that wesco did get notice of the federal court action there's a claims no from harleysville saying we put am trust which is west coast with an issue as to whether that's properly in evidence there well they contend that except they haven't denied receipt from anybody from wesco the lawyer the not not not mike not the current counsel but the lawyer below just simply denied it in their statement material facts without any evidence from wesco saying we never received the notice of the federal court action so we from our side they received notice of the occurrence they received notice of the federal court action and they received notice of the state court action but again even if they didn't receive notice of the federal court action even if we were to grant them that they've totally repudiated coverage under the policy new york laws absolutely clear that the insured doesn't have to go back to them and by the way the insured personal counsel when he put them on notice of the state court action wrote a long letter saying i'm not obligated to tell you anything by the way because you've already repudiated the contract but here's the state court action here's the federal court action just so you make sure you have it and he actually cited the law in new york saying you've repeated the deal counsel for the  and again wesco never came forward and said you know what we do have an obligation here and by the way they never denied coverage to wesco based on late notice until we sued them in this coverage that was the first time that they raise late notice as a possible defense to this case so i don't think they can show late a breach of the notice condition i don't think they can show prejudice because the proof is in the putting like judge nathan found they did nothing after receiving notice to jump up and say hey you guys didn't do x y and z why don't you do x y and z now this is the typical prejudice case is an insurer doesn't give their insurer on notice and at the fault is entered well the insurer just can't cover its eyes and say you didn't give us notice we're going to allow whatever happens happens what an insurer has to do is jump in trying to undo the default then if it can't undo the default then it can argue prejudice but you can't just say oh you missed it you didn't tell us timely and whatever happens now happens we're not going to tell you what we think you should do or act to tell you what we think you did wrong we're not going to tell you you know what aspects of this case caused us prejudice basically they want to we suffered prejudice even though we haven't suffered any prejudice which which doesn't work and the district were to be affirmed on the late notice grounds shifting back to their argument about this implied indemnity argument which we think was waived in any event we have four different different rights of recovery here we have an assignment from the insured m and t was left in and new york law is clear that that when an insurer improperly unincorporated they faced disastrous personal exposure in this case and harleysville was denying coverage denying indemnity and saying listen this is this isn't our problem wesco was denying coverage m m t under these circumstances in new york law it's absolutely clear it's in our brief he was free to protect themselves and cut a deal and that's what they did they cut a deal they said listen we'll actually pay twelve thousand five hundred dollars of her own pocket but harleysville it will you front the money if you front the money for us willis is is that the the deductible no that was no that was money in excess the plaintiffs great late would not take a million dollars they had suffered one point five and they had punitive damage claims they had attorney fees they wanted a lot more than a million dollars so they wouldn't let they wouldn't let you off the hook so  a deal they said harleysville front the money will give you all of our rights all of our rights to wescott and that's the primary basis for our rights in this case and that's what judge nathan relied on she said them an assignment not only do we have an assignment i think they're making a technical argument that because the thomases we're not legally obligated to pay wesco to pay the plaintiff that somehow their coverage frequent thing that that that policy holders do when they're facing exposure like this whether m and t assign their rights to great lakes and elaborate lakes to pursue wesco or assign their rights to harleysville of harley's will to pursue wesco the same principles apply we also have a contractual subrogation right in our policy that we're allowed to pursue any rights of m n c whether it's torque rights or contract rights we also have an equitable subrogation right now i think the court of appeals case in burlington which is an equitable subrogation case and allowed burlington insurance company to step in the shoes of the city in that case and pursue the m t a doesn't that doctrine eliminate the equitable but for the equitable one there is a sense running through those cases that we're not going to allow volunteers to pursue rights calling harleysville in this case a volunteer is is i think so far afield from what the actual record shows wesco was saying it's you you owe this money we don't the insurer are saying somebody has to pay harleysville was saying it's not us we filed a declarator judgment action so we're not a volunteer we're we're we're going to accept rights of assignment and in exchange fund this but we're going to in fact in the settlement agreement we  all of our rights again to pursue wesco so i don't see how an insurer would be remarkably bad precedent to suggest that an insurer who's wrongfully denying can say that an insurer who steps up and protects the insured is a mere volunteer when the insured that protect with the insure that protects the insured is on record repeatedly saying we don't think we know this and is now on record saying that they did own defense at least that's what the other side is saying yes thank you thank you judge i think if the first if there are any questions but again you have to go back to all of the legal arguments i made my brief there are there are two bases proper bases for recovery here in the first instance that is implied indemnity not subrogation not unjust enrichment and the rules regarding implied indemnification are very clear they've been enunciated by this court on multiple occasions there has to be implied in law a contract meaning both sides had a duty neither side here disputes that both sides had a duty only one side how to duty here so there simply is no implied in law a contract formed to enable harleysville to collect anything from from  w with respect to the signing claim again there still has to be an a legal obligation to pay that the way that the settlement agreement was drafted it was not drafted well it did not commit m and t the insured to pay the million corrector are and i also want to want to emphasize that kind of ironic vul i'll quote this this quote this quote i cited the case my brief voluntary settlements do not always result in equable results and that's what we have here the appendix it for ninety when i see a letter from the policyholders personal counsel and vising your client that there are two lawsuits out there yes oh yeah yeah sure and that's what i figured yeah yeah our point is that that came twenty months twenty one months after they were first sued all the all the action so to speak happened in federal action so the fact the fact that it was soon after the state action was commenced is really neither here nor there but also ones that want to emphasize your honor that that it's to the extent that you find that there is that they stated a valid cause of action which would dispute it's critical in terms of recovery for defense costs whether that would be in the context of the assignment claim or the implied indemnity claim under the assignment claim they would have no right to recovery of any defense costs because that's not something that we didn't pay what was never legally obligated to pay a defense cost that was paid for by harleysville so if you are to say that there are volunteers that would really mean that they don't have a leg to stand on in that they had absolutely no basis for for thinking that they had any coverage but as i understand it your client argue the opposite and said that they do have coverage sure that they did have coverage either way there was no question that the insured had coverage whether it was under the hollies bill policy or the last couple our client said that there was coverage and the that's correct that's correct yet you're saying that the fact that they move to defend the policy holder makes them a volunteer and they want to be holding the bag that's that's correct yeah that's that is the nature of these cases the voluntary payments cases that