next case is metro north the united illuminating the morning they please the court my name is back fineman i have the privilege of representing metro north and the m t a in this appeal i thought that we were going to hear in the last case a little bit more about the specific claims at issue in the case so just by way of setting a brief background i want to bring us back to the accident itself on the precipitated not only mr cologne's claim against metro north in the n c a a but metro north and the n c s claim against united illuminat not electrified from base to bonnet those towers carry a number of different types of wires at various levels the high voltage wires st you have metro north wires forty five feet or so up in the air and then above that you have united illuminating it's much higher voltage electricity electrical wires fifty some feet up in here mr cologne claims at all times that his accident happened because he climbed to a certain height and was startled by electricity from some invisible electrical field that we heard a little bit about before it was because he was startled that he then was caused to fall onto the lower right the lower metro north wires and that's where he made contact with the electrical wires that caused the severity of the injuries that he has today but the claim was always that he encountered some elusive invisible electric electricity and he a relied upon when they went back to you why and said hey if somebody has to defend this claim it should be at your expense under the very broad extraordinarily broad indemnification provision that is in the contract between the connecticut  transportation which has as its designee metro north so many metro north is the beneficiary of that of that contract for purposes of this case between si dot and united illuminating united illuminating entering into that contract  voluntarily assumed ate an extraordinary amount of risk and one of the risks that they assumed was if somebody someday makes a claim that they were injured because of the mere presence of united illuminating his wires up on that catenary that if metro north in that instance or if connecticut department of transportation was sued as a result of that injury and had to expend money to defend that claim no matter how meritless it might be  in its in that contract we will pay for the the cost of defense i understand judge meyer says he is the contract doesn't spell out the cost of defense it would be considerably simpler if the duty to defend were referenced  d in that article as it is in article three dollars and it's not it would have but it doesn't preclude reading that article nine to also include cost and offense and that's because the language of article nine  broader than what you have an article three much broader and much part of them what you see in most indemnity contracts that the court looked at well can i ask you a question because i'm surprised that there's a provision that says that united eliminating it has to get insurance right that covers things for including that includes the cost of defense right that insurance has to cover that even for groundless claims they have to get that insurance and it also says that the state in the states designee shall be named as additional insured parties so i would have thought that that would allow metro north to sue under this policy under the insurance that you i was required to obtain why did you do that well metro north position was when we brought the rd party complaint against united illuminating we are essentially putting united illuminating and its insurance carrier on notice that there is a claim it's not metro north responsibility to go directly to the carrier if you're insured then you have the ability to do that right we might have your honor but that doesn't preclude us also from from seeking indemnity under the much broader article nine article nine says all cost and or person of a rd party which is what we have here the rd part that that is covered by all costs and expense is of course any claims demands or actions for such loss and such loss has to refer back to the two types of loss that are earlier referenced and then it's as directly or indirectly caused by the presence of united illuminating swire as judge meyer in denying summary judgment at the on the rd party complaint said the the contraction indemnification claim can go forward because of course if mr cologne can prove that he was startled by that static electricity from united illuminators wires and that set in motion his accident that caused his injuries then of course there would be no question that metro north of be entitled to indemnification under article not right now we go with the boss you're trying to change this language to in essence insert caused or allegedly caused by the presence or use of the transmission system that's really what you're trying to say i'm not i'm not saying that your honor respectfully that the contract says that it says for any claims demands or actions for an actual loss right and the loss injury or damage is caused by the presence of the transmission system and susan what you're saying is that it really means to say caused or allegedly caused so in other ways it could be a groundless or a baseless even a frivolous case right that's what you're saying but that's not the language of the provision and respectfully your honor i would i would disagree i think the provision says exactly that it says if there is allegedly cause well it says a claim for such loss a claim is an allegation is hasn't lame was it caused by the injury was caused by the wire it was a claim for a loss that was caused by the walkers right so i claim for loss caused by the presence of the wires i are some other cases that we've seen that used the word allegedly to make it explicit you're saying that that's implicitly there right well i'm saying it's there because of the contract says all cost and expense and cut and the cases that we relied on our papers say all cost and expense means unless specifically excluded it means cost of defending against a claim even if that claim is not proven later on that's the whole point of having it is an invention vision you certainly knew how to say even if groundless in another provision the parties didn't know how to do that but you do it here they did not but but i would submit that they didn't have to because of the breadth of the the language not only that but  was it necessary to do it in the other section in the insurance section insurance section it puts the onus on united illuminating to obtain insurance that's going to cover it for losses that would that it would be responsible for so it's a bel suspenders method for si dot and it's designees to make sure that if something such as article nine comes as a provision for insurance i'm asking why it was deemed appropriate to include language like even if groundless in that section but not in the section that talks about of them if occasion i can't go back to what the drafters of that contract believed i can only say that that it appears that language is there because whatever insurance united illuminating obtains is out of can the control of connecticut department of transportation and its designees it puts the onus on united illuminating to go out and get that insurance and so it's a way for c dot and metro north and other designees to say if something comes to pass where we think that you are responsible for the costs and expense of either the claim or the actual loss we want to make sure that you have sufficient insurance and one way that we're going to make sure that you have sufficient insurance is to make sure that there is no question whatsoever given the breath of article nine which i think most insurance companies probably are not accustomed to seeing something that says you're going to be responsible for all costs and defense all cost and expense related to any claims even if indirectly caused by the mere presence of equipment it usually is tied to some sort of wrongdoing but that's not the case here over simplifying your argument is what you're saying that the reason they had to get insurance to cover the cost of defense is that cost of defense is one of the things that they might be liable for under the indemnity provision and just as you want them to get insurance to make sure they'd be able to pay the liability if liability happened you're also asking them to get insurance for the cost of defense because the cost of defense is something they'd also have to pay for yes i don't think that's an oversimplification i think that's how you read article nine dollars in article three together i see that i over time and i'm happy to continue  company at the outset i'd just like to point out i think judge sullivan i think you hit the nail on the head that the claim here was not caused by the transmission system and that's that's how the article three is structured is that there must be a loss caused by the u i transmission system directly or indirectly or there must be a claim for such loss such doing a lot of work here cause deals with speaking in hypotheticals if mr cologne had been successful before the jury and won a five million dollars verdict that would be a loss that was suffered directly that would then if it was then proven that the clause was triggered you i would no indemnification for the claim language provides for if he were say unsuccessful because the jury found that he was fifty one percent contributory negligence so there was no loss but there was a claim for loss and then if the jury would answer eight differently and find that yes his injuries were caused by the u i transmissions or it were caused by a series in danger and part of that serious hidden danger was caused by us transmission system but he loses for some other reason there wouldn't be a loss for you i do and then if i but there would have been a claim for lost with costs associated with that claim for loss that's what there is to not to know exactly  seems like a stretch to me but i mean let me ask you about the assurance provision because why on earth would metro north be insisting that you have insurance to cover groundless claims if there was no way that they were go reimbursed for those groundless claims in other words the cost of defense they may be reimbursed for them by the insurance but they've the contract requires you to get insurance that covers those  costs and it seems silly that they'd be insisting that you get insurance that's not going to benefit them in any way i don't believe that the claim here are to do st of all as a point of clarification they haven't sued under the insurance section so that's not directly added i'm not sure why they didn't their own and sure that i mean unless the insurance wasn't procured i don't know but it would seem to me that they could sue under that but it's not clear to me why the parties would enter into an agreement that has this provision that requires your client to get insurance that will cover their costs to investigate and defend against all claims for damages even if groundless if you're not if you don't have to indemnify them for that you're going to be insisting need not provide exactly the same protections because it's two different parties who might pay these costs and as a point that this works as a useful segue your honor throughout this briefing there's been a point of discomfort to me which is i felt as though we've been talking past each other a little bit and what our brief discussed attorney fineman is correct that this is a broadly written clause no one could dispute that it says any and all costs and all claims of course is a broadly written clause but it has a factual trigger in it for those protections to be activated it doesn't say any claims of any sort anywhere that you as wires are mentioned by anyone it says a claim for loss caused by directly or indirectly transmission system that's a factual question as for shows the connecticut appellate court case which has the same clause clause involving a claim for loss in that case arising out of the work but it's the same question there's a factual trigger for the indemnity protection to apply and the issue was put to the jury very directly on a jury in iraq atory that both parties submitted in fact i can say i went back to the record preparing for today the iraq retore is closer to the version submitted by metro north and the jury said no metro north failed to prove the factual basis for its claim and the sole factual question put to the jury necessary for this clause to apply they lost they made a valiant effort there was a two week jury trial multiple witnesses lengthy testimony they lost the clause doesn't apply to music or at least an ambiguity about how to read that if if you were describing the claim that mr cologne made the claim he made is at least in part element that's relevant here for us to consider is that the protection guaranteed by the fuji is a protection of failure to warn against the serious hidden condition that the defendant created or maintained the only defendants that omar cologne sued were metro north and the m t a which means by definition as an absolute matter of law the only conditions that he could have been claiming causes injuries were conditions that metro north or the m t a created are maintained and there is no dispute it is clear throughout the transmission line agreement to metro north and the m t a had nothing to do with the creation or maintaining of unwise transmission system the whole point of the contract is you are making a deal with the state saying ok we'll let you use the top of our towers but that's your responsibility you put your stuff up there you're responsible for installing it you're responsible for the main maintenance cost if any liable he flows from it then pursuant to the indemnity clause you may be responsible for it but that is clearly sole have property so that there is no way to take omar colognes claim which can only be about conditions that metro north or the m t a created or maintained and transfer that into a claim about us transmission system it is metro north of the m t a that inserted you are the case they were free as they did to argue an alternative theory of how he was injured omar cologne said as well you failed to warn me of the danger of climbing forty feet in the air so i got into the proximity of a static electric field and it's a static electric field that your wires created and they're free to say no no no it wasn't our wires that created an electric field if that's what injured you you why it was your wires and if they could prove that they would be due the indemnity protections but they failed to prove that it doesn't contain a duty to defend so it's not analyzed as a duty to defend but to the extent that there is any confusion or ambiguity it's latin so i like to say it expressed as exclusive alterio this is a canon of contract interpretation applies pretty clearly here when these parties they're experienced commercial parties and on the part of uighur it's literally the state of connecticut and that's on the opposing side when they wish to create a duty to defend when they wish to create an obligation that is analyzed as a duty to defend they did so expressly in this contract they're not novices at drafting contracts they know how to write what they mean so that they say what they mean and mean what they say they did not create that duty here in  prove the nd element that his injury was caused by a serious hidden danger he didn't in this case but the radically he could have and that was that was clearly them to cover by the st section in the cost of loss of life or property  apologize st of all he could prove his entire claim and he did jury says you were horribly injured here's five million dollars and in answering all these questions perhaps the jury would answer yes to jury interact or eight so not only yes here's a five million dollars verdict but also yes his injuries were caused directly or indirectly by us transmission system then under the contract that would be an injury or damage to the person or property of any rd person directly or indirectly caused by the presence or use of the transmission system that would be the st use of the transmission system applies to both of those yes absolutely but i'm saying that five the hypothetical five million dollars verdict in this case would be indemnified under the st clause but alternatively the jury could say no no attorney rush is a smart attorney and has proven the st element in the nd element but he's failed to prove constant intrusion say hypothetically that's when they determine ok yes he's proven that metro the possessor of the property and proven that yes we believe that all michael and fell at hide because he was affected by a static electric field but no he's failed to prove constant intrusion and therefore his claim fails proceeding to the jury and they would see the instruction ok but even if you answered no here proceed to number eight if you answer and you proceed to number eight and that's where you are again presented with the question of was his injury caused directly or indirectly by us transmission system and if he would answer yes there in theoretically in that case even though there would be no loss to indemnify that would be a claim for loss that had been proven to be caused by us transmission system such that the cost associated with that would be doing dandy so that's one liabilities and one is the defense the defense costs returning to what i said a little earlier on and this is where i feel as though we're we're talking past each other u s position is not and judge myers decision below is not that this contract can never in any case whatsoever provide for the indemnity of defense costs the question is whether can you can provide i understand that but i guess the my question is if this is an ambiguous contract right then then i guess you go back and then you take discovery you figure out if anybody really was thinking what you said if there's any evidence that extrinsic evidence that supports that interpretation perhaps but you're saying that the plain language supports your and your theory right the plane like excuse me the plain language but also the case law also canons of contractual interpretation also analogous language from connecticut statute these are all various ways that you arrive at the same point as we begin at the plain language of the contract but again i mean i don't think you mentioned this in your brief but does your is your interpretation of the provision aided by that final clause which makes it clear that accepting loss or damage to the negligence of the state or the states design expressly is an odd thing to attack iran see it seems to me at least potentially to a duty to defend clause precisely your honor and i suppose that's not in our brief and there's only so many pages and no matter how well you're right there's always something you know great but i would agree your honor that again it's not a duty to defend it is a question of balancing of the negligence of who's responsible for this accident that is inherently a factual question that is for a jury to answer in the jury answered here  the jury rejected that proposition i know i'm well over your honor but just returning again to judge sullivan there is a distinction between whether this contract can provide for defense costs when it is triggered and whether it has been triggered here in our argument or honors that it requires a factual proof of causation even indirectly but factual proof no it's interesting that you have the defense costs and other figures and privileges that are so late in the game you've got to try the whole case st to figure out whether or not you have a duty to defend it or to cover the defense costs that's usually you want to nail that down upfront too right it depends on what protection is being bought and the contractor and i would point again to the make next case which has a similarly worded contract protecting with indemnity but not the word defend against claims that occur in a certain manner in that case arising out of the work circumstances and where asking what those circumstances would be so whatever other arguments there are and i think there are a lot of complicated arguments on both sides the least the point about it's a problem that you wouldn't know til the end of the case it that would be a problem if it was a duty to defend from day one but it's not so much a problem of the question is just when the case is all over who pays all the costs  hey we're like out of here you hire a lawyer might as they would with an insurance company you hire the lawyers you control the defense because this is all your thing because once this claim has been made it's up to you to defend from that's not really what's being said here we would agree your honor although there are tons of that to metro north brief that it should be analyzed as a duty to defend or indeed that it creates a duty to defend we would absolutely agree it does not create a duty to defend it creates a judgment which part says that you would have to pay the costs of the litigation is that is that exclusively the nd part about and from all claims demands at center or is that already built into the last part i believe that's what the claims portion speaks to your honor because you read in full putting in some ellipses is from an against all cost or expense resulting from any and all loss or damage the litigation costs are rising out of the fact that omar cologne had a hospital bill for his burns the loss or damage that's being done to fight is the hospital bill for spurns  livingston's question about redundancy because it is that money which isn't redundant because otherwise even if you guys lost the suit all from the get go you wouldn't have to pay metro north what you're saying that's not this case correct that's merely that was really my very in artful obviously attempt to craft a hypothetical to explain a situation where one clause would be useful but the other clothes wouldn't to show that there is no overlap and redundancy they serve different purposes that is a practical question and it's sort of puzzling to me that there would be a contract that requires you to get insurance that covers that record that the insurance company then has to investigate and defend all claim even groundless one so presumably this one and yet the insurance company then sort of sits back and lets its to insurers fight it out in federal court over who is would seem to be just an utterly wasteful exercise that just generates more litigation costs as a practical matter your honor i'm not in the metro north claim department nor do i work for ryan right to live i don't know why the claim wasn't submitted are made under the insurance either it would seem to me each side had an interest in having the carrier cover the costs of this litigation from the get go i mean the underlying litigation to investigate and defend it i would say it seems odd to me that that's all i can say to that your honor is that there were a lot of inefficiencies along the way the twists and turns that this case took one of the complicating factors was that for reasons that i don't think anybody will ever understand i mean that the plaintiffs made a lot of intriguing strategic decisions along the way but one of their decisions was not to sue the united illuminating directly and united illuminating matter metro north is an assured or the policy right there's no problem is no need for this litigation i'm not sure that that would've been the case your honor i don't know how that would have played out but not withstanding that potential avenue article nine does provide us with the exact a different mechanism to achieve the exact same result and when we look at article three in the insurance provisions i think it's important to note that that is further evidence of what the parties intended in terms of the risks that were being allocated throughout the and throughout the remainder of the contract and that is something that the cases that we rely upon in our brief do talk about it as being a considerable factor for the courts to take into account how the parties what they were really trying to achieve here and i don't think there can be any real question that what the parties here were trying to achieve was a shifting of the cost of any risk to united a loony because united illuminating is getting the benefit of being allowed to use to run its very high voltage wires along the railroad and state property and so in exchange for that you know i don't limit it was saying on the very often i mean i don't think anybody ever would have forseen that somebody number one climbs a catenary as high as mr cohen did and number two if they did in the end they sustain the injuries that he did that they would sue anybody on the very off chance that that comes to pass we will accept the risk that we are going to have to cover the costs all costs and all expense for that claim there's a when mr ringold says we're talking past each other the only place where i think that i would agree with that is when we're talking about causation and move food and the elements of of the plaintiff's claims the plaintiffs chose to focus their claims of negligence on metro north and the m t a that doesn't mean and you can never talk about this case realistically or reasonably in such a way where the plaintiffs were talking about this case without united lootings wires being a factor at all united in limiting his wires according to the plays of at all times up until the point of trial until we get the jury in iraq where he's back nobody knows how the jury's going to perceive this their claims at all time at all times were your electricity from your wires put this whole thing in motion metro north negligence according to the plaintiff's was you did something that either didn't deter me enough from climbing that that tower or you didn't warn me enough or you should have somehow physically barricaded me from doing that but allowing me to get up to you eyes wires is what the plaintiffs claimed metro north was negligent doing united limited can't be written out of this case no matter how hard they try the in iraq or tories the outcome of the inner inner organs worries wouldn't matter if for instance mr cologne had won his case and for some reason the jury said we believe his theory of the case but we're not totally convinced that united alumina things wires is what set it all in motion all we know is that he was severely injured when he falls on to metro north wires and so we're not going to find that united illuminati's wires were directly or indirectly involved in the incident at that point united illuminating would not have the