the next matter on our calendar is old republic general insurance vs century s enough and this court in the southern district applies to this case and the court erred unfortunately in applying j t magen to this case the letter sent over publix administrator eleanor bassett very clearly said submitted a tender letter a notice to century surety which very specifically said it was on behalf of macallan the general contractor in the action  correct if even the lowest court in new york had said in durance was not correct that would reopen ve shoe but why use an that a statement that after all if we only thing we have since that is  from new york is really gravest the court of claims which says the same language is adequate now you know i'm big on certification but i wonder whether invest case  i know and i know it does not it does not analyze the particular issue in the endorsement which says employers liability ok in this case regarding a general contractor who does not employ mr newton the same that is him to you because the this court's hasting decision even noted that that it can't be which  ambiguous and misleading in this case but let's get down to the heart of it where it says this coverage part does not apply to employers liability colon injury or damage to employer the name insured and it goes on how does that apply on its face to my insured mccallum the general contractor who is tendering is additional insured there's at least a question ambiguity if not all ambiguity that should apply and i have to say getting and in the endorsement it says this coverage part does not apply to employers liability colon injury or damage to an employee of the named insured arising out of in the course of  continues we're not the employer mcgowan's not the employer so why does employers liability reference an additional insured general contractor submitting for coverage as an additional insured how is it possible that there's no  a least a question which should be delved into and this should recommend least heard find this to the new york state court of appeals don't you we asked for that in our brief your honor but beyond that there's also the question of whether it was on timely denial and unfortunately durance in fact exactly the same but it is just a summary order just for my knowledge it is a summary order your honor book reading and durant stance your question i think the issue that i've just brought up was not properly analyzed correctly five months later they served another nov denial letter and this letter it's in the record in this letter they cite not only this action over exclusion once again but they  their other indorsement as well and they base their denial now on the other endorsement injury to a sub contractors employee now that's getting on point with who your insurer is this being tendered general contractor and they  actually have gotten it right if that but for they did it five months later prohibited by st financial court of appeals so i agree with judge poor if there is a question as all is jandek you agree it should be certified  thank you thank you rose from century morning you're on is christopher bradley for the apparently they please the court we submit the district court got it correct in all three respects the disclaimer was timely valid and relied upon an unambiguous exclusion over exclusion will rely on our brief and judge pool risk in the in durance decision has ruled explicitly well the unit darren's decision was a summary order by your court on new york to all and the question is is new york law clear and can we say new york law is clear when vera was a  just a summary order by our part a decision above a court of claims and nor more of that now they brought it in state court you removed as you had your right to group new york courts from the opportunity of saying what new york law is and that is why certification is often worthwhile because it gives the new york court a chance to speak on new york law so of a question for me is does the fact that in durance came down in what way and that there has been no suggestion by new york courts refer it to certify the question for the for this reason there is the phrase action over exclusion is the header it's a employers liability exclusion which is that what do those words   rd party typically the employer but the employer's liability exclusion and was addressed in durance that has the same identical language when you're talking about who gets the benefit or not it has been extent interpreted to extend to additional insureds such as mcgowan in this case countless times there has been no ambiguity and your honor the there are numerous state court decisions that we cite to as well as in the  in the district courts in this circuit that have interpreted the action over exclusion relying on state law numerous times that you have you don't give us a new york court of appeals decision you give us lower court new york  mcgowan hired a v steal as a sub contractor it was a v steele who purchased the insurance and by the way a v steal purchased were in excess insurance were not the primary insurer in fact i believe in this case did go and purchase the insurance from is trying to avoid its own obligations were an excess insurance were mcgowan is a complete stranger until again i don't have rights because it's mentioned as an employer to rd party administrator for old republic tendered and again even in that tender letter when you talk about thirty four choices we are ten during that's gallagher bassett and when you read the letter carefully it's a notice letter as to this century who's the excess insurer they are tendering to in durance who is the co address see in the letter a word for record purpose only we don't have a duty to defend this is not a duty to defend a case  mcgowan is a complete stranger and they whether they whether they would or would not whatever kind of insurance they wish to purchase that's up to them i would say in the alternative buy a policy that doesn't give them the  protection they are they're free because of workers comp but why would they buy a policy that doesn't protect the general contractor isn't that what this is all about someone who gets injured on the job right and then typically there  policies where depending on the language in this case we added the action over exclusion which precludes that type of risk and it's reflected in the premium if they didn't want that exclusion or they wanted broader coverage they would have paid and purchased it avi steele is doing its own risk assessment saying ok i am protected because i'm the employer i'll never get sued now mike contractors whether they do or don't they a v steel made a decision it decided not to purchase that coverage the coverage a v steel purchased would not cover additional insureds for injuries to a v steals employees that's the marketplace so if they wanted to protect the general contractor they had to pay more in there then or buy a different policy or the  if in the that the general contractor macgowan mcgowan is old republic correct so mcgowan purchased its own insurance macgowan is completely protected here this is not a situation where somebody is bare they have their own coverage and if they wanted a v steal to get them a certain type of coverage they would have said get this for us and then a v steel would have had to have gotten it a v steel did not purchase it and regardless of what's in the cut the sub contract between mcgowan and a v steel a v steel when it came to its insurer in to purchase its own insurance decided for its own financial reasons not to purchase that coverage what i forget from time to time is that stranger to this transaction is gallagher bassett old republic it's at the insurer level right that's what i forget that they know what they're doing that's correct if the court doesn't have any other questions all rest so if they know what they were doing they they weren't buying insurance to cover him or a v steals workers macgowan was by contract they were to get insurance general liability insurance which did not include such ridiculous purported exclusions that's all i'll say on that so let's that's nonsense to the issues in this case the issues in this case is whether they had a proper denial based on proper aspects of their policy now the denial was and it was within twenty something days that's not the problem the problem is if we look at the language and i don't want to belabor it with the court but it's all if this happens and if the underlying carrier does this and we will do this potentially and says we must reject your tender at this time you know it was to be only if significant if was if a person was on the employee that was one of them judge they never really directed that and they never gave us a timely denial they would have five months later to do it that's the determination of the underlying primary care insurance counsel made a point here just now that it didn't matter because they were excess their excess of one million dollars potentially insurance for my general contractor i was just in a mediation last week judge this man lost four toes and the mediation didn't settle the case of mr newton because his demand is nine million dollars that's down from fourteen million dollars and counsel makes the argument oh it doesn't matter that we comply with the insurance law on arginine oil and that we can send a letter out five months later saying unequivocally he's your and he's the employee of our insured so it doesn't apply i have to make one more point this action over exclusion your honor is the question i think happily about what does it mean actual exclusion they're referring to rd party action over council submitted some industry publication is brief on that that makes it not apply a rd party action over would be against their own insured b that creates another in big you would hear of itself then we get to the main ambiguity in my view that says it applies to employers liability now if they didn't put that in there there may be a crapshoot as they say about oh insured employee of any insured for any insured be it named who aren't they didn't do that this insurance company in drafting it so i submit now i was standing the memorandum decision in the in durance case this court has hastings disagreed with it also of this court and i submit that at the very least as your honor as suggested it is uncharted waters for new york law if we look at the ambiguity issue and as to