SHORT FORM ORDER SUPREME COURT: STATE OF ...decisions.courts.state.ny.us/10jd/nassau/decisions/index/...SHORT FORM ORDER SUPREME COURT: STATE OF NEW YORK COUNTY OF NASSAU HON. IRA

SHORT FORM ORDER

SUPREME COURT: STATE OF NEW YORKCOUNTY OF NASSAU

HON. IRA B. W ARSHA WSKY,Justice.

TRIAL/IAS PART 7

QBE INSURNCE CORPORATION,

PlaintiffINDEX NO. : 601695/2009MOTION DATE: 9/19/2011SEQUENCE NO . : 043, 044

- against -

ADJO CONTRACTING CORPORATIONTRAVELERS INDEMNITY COMPANYARCHSTONE f/k/a ARCHSTONE-SMITHOPERATING TRUST, TISMAN SPEYERARCHSTONE-SMITH WESTBURY, L.P. f/k/a ASNROOSEVELT CENTER, LLC , ASN ROOSEVELTCENTER, LLC d/b/a ARCHSTONE WESTBURYARCHSTONE-SMITH TRUST, ARCHSTONE SMITHOPERATING TRUST, ARCHSTONE SMITHOPERATING TRUST, ARCHSTONE SMITHOPERATING TRUST, ARCHSTONE-SMITHCOMMUNITIES, LLC , ARCHSTONE-SMITH , INC.LEHMAN BROTHERS HOLDINGS, INC. , TISHMANSPEYER PROPERTIES, LP , TOCCI BUILDINGCORPORA TION OF NEW JERSEY , INC. , LIBERTYMUTUAL INSURANCE COMPANY, PERKINSEASTMAN ARCHITECTS, INC. , ELDORADOSTONE, LLC , AMERICAN ENGINEERINGSERVICES, P.c., APRO CONSTRUCTION GROUPATLAS COMFORT SYSTEMS, USA, L.P. , d/b/a

ATLAS AIR CONDITIONING BUILDERSHARDWARE, CLEM' S ORNAMENTAL IRONWORKS, DA VINCI CONSTRUCTION OF NASSAU,INC. , d/b/a DA VINCI CONSTRUCTION , FOURSEASONS INSULATION CORP. , HAVANACONSTRUCTION CORP. , HOUSTON STAFFORD

ELECTRICAL CONTRACTORS , L.P. , d/b/HOUSTON STAFFORD ELECTRIC, KLEETLUMBER COMPANY , KNIGHT WATERPROOFINGCOMPANY, INC. , MANNING PLUMBING ANDHEATING CORP. , METRO PAINTING, M.CONCRETE CORP. , MID-ATLANTIC STONE, INC.PATTI ROOFING, LLC, SIDNEY B. BOWNE & SONLLP , SIPALA LANDSCAPE SERVICES, INC. , STATFIRE SUPPRESSION , INC. , SUPERSEALMANUFACTURING CO. , THREE B' S PLUMBINGHEA TING AND AIR CONDITIONING CORP.,UNIVERSAL FOREST PRODUCTS , and JohnDiGiovanna, Richardo Francois, Trent Hunter, PasqualeMarchese, Andrea Sorrentino, Jessica VentimigliaIndividually, and on behalf of themselves and all otherpersons similarly situated,

Defendants.

THE TRAVELERS INDEMNITY COMPANY

Third-party Plaintiff

- against -

ACE AMERICAN INSURANCE COMPANY,AMERICAN EUROPEAN INSURANCE COMPANYflka MERCHANTS INSURANCE COMPANY OFNEW HAMPSHIRE , INC., AMERICAN STATESINSURANCE COMPANY, CONTINENTL CASUALTYCOMPANY , DELOS INSURANCE COMPANY flkaSIRIUS AMERICA INSURANCE COMPANY, ERIEINSURANCE EXCHANGE, EVEREST INDEMNITYINSURANCE COMPANY, FARM FAMILY CASUALTYINSURANCE COMPANY, INTERSTATE FIRE ANDCASUALTY COMPANY, MERCHANTS MUTUALINSURANCE COMPANY , NAVIGATORS SPECIALTYINSURANCE COMPANY f/k/a NIC INSURANCE COMPANYOHIO CASUALTY INSURANCE COMPANY, PENNSYLVANIANATIONAL MUTUAL CASUALTY INSURANCE COMPANYSCOTTSDALE INSURANCE COMPANY

Third-party Defendants.

ARCHSTONE , flka ARCHSTONE-SMITH OPERATINGTRUST, ARCHSTONE WESTBURY , LP , f/k/a TISHMANSPEYER ARCHSTONE-SMITH WESTBURY , L.P. , f/k/aASN ROOSEVELT CENTER, LLC; ARCHSTONEMULTIFAMILY SERIES I TRUST, flka ARCHSTONE-SMITH TRUST; ARCHSTONE COMMUNITIES , LLCf/k/a ARCHSTONE-SMITH COMMUNITIES, LLC; ANDTISHMAN SPEYER PROPERTIES LP

Second Third-Party Plaintiffs

- against -

ACE AMERICAN INSURANCE COMPANYAMERICAN EUROPEAN INSURANCE COMPANYf/a MERCHANTS INSURANCE COMPANY OFNEW HAMPSHIRE , INC. , AMERICAN STATESINSURANCE COMPANY , ATLANTIC CASUALTY INSURANCECOMPANY, CONTINENTAL CASUALTYCOMPANY, DELOS INSURANCE COMPANY f/k/aSIRIUS AMERICA INSURANCE COMPANY , DISCOVERPROPERTY & CASUALTY INSURANCE COMPANY, ERIEINSURANCE EXCHANGE , EVEREST INDEMNITYINSURANCE COMPANY , FARM FAMILY CASUALTYINSURANCE COMPANY , FEDERATED MUTUAL INSURANCECOMPANY , HARTFORD FIRE INSURANCE COMPANYINTERSTATE FIRE AND CASUALTY COMPANY, LIBERTYMUTUAL FIRE INSURANCE COMPANY MERCHANTS MUTUALINSURANCE COMPANY, NA VIGA TORS SPECIALTYINSURANCE COMPANY f/k/a NIC INSURANCE COMPANYOHIO CASUALTY INSURANCE COMPANY, PENNSYLVANIANATIONAL MUTUAL CASUALTY INSURANCE COMPANYSCOTTSDALE INSURANCE COMPANY, ZURICH AMERICANINSURANCE COMPANY

Second Third-Party Defendants.

The following documents were read on this motion:

Motion Seq. 43 by Archstone for Summary Judgment against Erie InsuranceAffrmation of Edward J. Henderson in Support of Motion

..........................

Memorandum of Law in Support of Archstone Motion

.........................

Archstone s Rule 19-A Statement of Material Facts ......................................Affrmation of Frank Mattera, Esq. in Opposition to Motion..........................

Affrmation of Shirley J. Spira, Esq. in Opposition to Motion .................... 6.Memorandum of Law of Erie Insurance Exchange in Opposition to Motion Archstone Reply Memorandum in Further Support of Motion .................... 8.Motion Seq. 44 by Archstone to Amend Second Third-Party Complaint Affirmation of Edward J. Henderson, Esq. in Support of Motion ................... 10.Archstone Memorandum of Law in Support of Motion to Amend

........... .......

11.

Erie Memorandum of Law in Opposition to Motion ........................................... 12.

Affrmation of Shirley Spira, Esq. in Opposition to 043 & 044 .................... 13.Reply Affirmation in Further Support of Archstone Motion to Amend 14.

PRELIMINARY STATEMENT

Motion Sequence 043

Archstone-Smith Operating Trust, Archstone Westbury, LP , f/k/a Tishman Speyer

Archstone-Smith Westbury, L.P. , f/k/a ASN Roosevelt Center LLC, Archstone Multifamily

Series I Trust, flka Archstone-Smith Trust, Archstone Communities , LLC, flka Archstone

Smity Communities , LLC (collectively "Arch stone ) moves for an order granting them partial

summary judgment against Erie Insurance Exchange ("Erie ) determining that Erie has breached

its contract with Archstone and directing Erie to pay all of the defense costs incurred by

Archstone-Smith Operating Trust and ASN Roosevelt Center, LLC in connection with the

Hunter action. I Archstone relies on the prior Order of this Court of April 5 2011 , and its

clarification on reargument by Order dated April 7 , 2011 , whereby the Court determined that

Archstone was an additional insured under policies sold by Erie Insurance Exchange ("Erie ) to

Mid-Atlantic Stone, Inc. ; that Erie had a duty to defend ASOT and ASN Roosevelt in the

Consolidated Tenant Action , including the individual actions that were consolidated into the

Consolidated Tenant Action; and to defend ASN Roosevelt in the Hunter action.

Erie opposes the motion , asserting that the April 5 2011 Decision and Order explicitly

excluded from consideration issues regarding the allocation of defense costs and Archstone

actual damages from the Second Third-party Defendants ' failure to defend. They also contend

that the case upon which Archstone relies is factually distinguishable and inapplicable to the

In re Archstone Westbury Tenant Litigation, Index No. 02113512007; Hunter, et al.

ASN Roosevelt Center, LLC d/b/a Archstone Westbury, Index No. 00485612008.

facts of this action.2 They assert that the Court in J.H. France never intended to give an insured

unfettered choice as to which of multiple carriers were to be totally responsible for defense costs.

Motion Sequence 044

Archstone moves pursuant to CPLR 3025 (b) for leave to amend its Second Third-party

Amended Complaint in order to add a claim against Erie Insurance Exchange ("Erie ) for bad

faith for its failure to provide defense coverage and its refusal to reimburse Archstone for its

costs of defense in the face of this Court' s determination that Archstone Smith Operating Trust

ASOT") and ASN Roosevelt Center, LLC ("ASN Roosevelt") were additional insureds under

Erie s polocies issued to Mid-Atlantic Stone , Inc. And that Erie had a duty to defend ASOT and

ASN Roosevelt in the Consolidated Class Action and to defend ASN Roosevelt in the Hunter

action.

Erie opposes the motion as seeking relief which is contrary to the language and intent of

the Court' s April 5 , 2011 Order. It takes the position that the Decision did not impose an

obligation upon Erie to "adjust" or otherwise pay the entirety of Archstone s defense costs in the

tenant actions. While New York law permits liberal amendment of pleadings , it should not be

permitted in this case , since it would constitute an act of futility. The refusal of Erie to pay the

entirety of Archstone s defense costs does not constitute bad faith under the laws of New York

or Pennsylvania. Erie acknowledges that the parties agree that the laws of Pennsylvania should

apply to the determination of Erie s defense , but claims it is unclear if the Pennsylvania law of

bad faith applies to allegations involving Erie s conduct during the cours of New York

litigation.

BACKGROUND

Archstone is a defendant in actions fied by former tenants of the Archstone Westbury

Complex, referred to as the "tenant actions . In November 2008 Archstone requested coverage

as an additional insured under Erie policies issued to Mid-Atlantic Stone. Erie did not respond

to the request. In November 2009, Archstone commenced a second third-party action against

Erie and other insurers , seeking a judgment that Erie was obligated to pay defense costs and

2 J.H. France Refractories Company v. Allstate Insurance Company, 62 A.2d 502 (Pa.

1993).

expenses associated with their defense against lawsuits that have been or may be brought against

Archstone arising out of the Archstone Westbury Complex. The action also asserts that Erie is

obligated under the policies issued to Mid-Atlantic Stone to indemnify Archstone for its defense

in the tenant actions, subject to the limits of liability, along with damages and post and pre-trial

interest, fees, costs , and expenses incurred by Archstone as a result of Erie s breach , or

anticipatory breach , of the contract of insurance. Erie served its answer to the second third-party

complaint on November 13 2009 , in which it disclaimed coverage and set forth its coverage

defenses.

In August 2010 Archstone moved for partial summary judgment on the duty to defend.

Briefing on the motion concluded in March 2011 , and the Court heard oral argument on

February 8 , and March 4, 2011. On April 5 , 2011 the Court granted in part and denied in part

Archstone s motion. By Order dated June 7 , 2011 and entered on June 15 2011 , the Court

concluded that Archstone Smith Operating Trust ("ASOT") and ASN Roosevelt were additional

insureds under the Erie policies and that Erie owed them a duty to defend in the In re Archstone

Westbury Tenant Litigation, Index No. 21135/2007 ("Consolidated Actions ) as well as the

underlying actions that were consolidated into the Consolidated Action; and owed ASN

Roosevelt a duty to defend in Hunter, et al. v. ASN Roosevelt Center, LLC d/b/a Archstone

Westbury, Index No. 004856/2008 Hunter Action

By letter dated April 20 , 2011 , Archstone demanded that Erie pay in excess of$7 milion

in costs which it had incurred in defending the Consolidated Action and the Hunter Action. Erie

rejected the demand by letter dated May 11 , 2011 , contending that the demand was "premature

Archstone replied by letter dated May 25 , 2011 , reiterating their demand for payment. Erie

responded by repeating its refusal to make payment, partly because several of the third-party

defendants have appealed the prior Orders of the Court, and that there was a substantial

likelihood of reversal.

DISCUSSION

In its April 5, 2011 Decision and Order, this Court determined that there was a

reasonable possibility that liability in the Tenant Actions arose out of Mid-Atlantic Stone

ongoing operations , which were covered by an Erie policy, or was caused , in whole or in part, by

its work under which it had coverage by a Pennsylvania National policy. Mid Atlantic installed

the Eldorado Stone manufactured stone veneer, known as MSV, or simulated stone, the exterior

product which was applied to most of the apartment buildings in the Archstone Westbury

Complex. The complaint in In re Archstone implicates the work of Mid Atlantic Stone.

Erie also provided coverage to ASN Roosevelt, LLC as an additional insured. The

complaint in Hunter alleges negligent construction and the Crewdson letter identifies numerous

defects in the installation ofthe Eldorado Stone product. Those claims , as well as the more

specific references to the "exterior product" alerted Erie that some of the water intrusion at the

Archstone Westbury complex was attributable, or arose out of Mid Atlantic work.

The Court made no determination as to allocation of defense costs, nor did it make any

award of such defense costs. Archstone now moves against Erie to determine whether Archstone

may require Erie to reimburse past and future defense costs under the concept of joint and

several liabilty, irrespective of the amount, without apportionment or pro rationing.

Archstone relies on a decision of the highest court ofPennsylvania3 to assert that Erie

liability for its failure to defend Archstone is joint and several , and that they are entitled to

recover all of their costs from Erie , who then must proceed against the other insurers who are

also jointly and severally liable.

J.H. France is frequently cited for two different holdings. The first of those deals with

when a tort occurs so as to trigger coverage under a particular policy. Most general commercial

GCL") policies define coverage in terms of damages which accrue as a result of "bodily

injury" or "property damage" as a result of an "occurrence . Occurrence is generally defined as

a type of accident or condition that results in property damage or bodily injury. J.H. France

involved personal injury as a result of exposure to asbestos , and the court was required to

determine during what periods of coverage the exposure occurred so as to determine which

policies covered particular injured claimants.

J.H. France Refractories Co. v. Allstate Insur. Co., 626 A.2d 502 , 508 (Pa. 1993).

4 The policy involved in J.H. France, for example, stated that "occurrence means and

accident, including continuous or repeated exposure to conditions , which result in bodily injury

... neither expected nor intended from the standpoint of the Insured"

paricular injured claimants.

The Court adopted a "multiple trigger" theory of determining liability of the insurers, by

deciding that liability results if anyone of the following occurred during the time the insurer was

on the risk: exposure to asbestos or silica; progression of the pathology; or manifestation of the

disease. The Court adopted the determination of the Superior Court that exposure to asbestos

causes immediate "bodily injur , thus triggering the insurer s duty to indemnify. "Bodily

injur" also encompasses the progression of the disease throughout and after the period of

exposure, until ultimately, the manifestation of recognizable incapacitation constitutes the final

injur . These stages of the pathogenesis of asbestos and silca related diseases also trigger the

liabilty of J.H. France s insurance cariers. This multiple trigger approach imposed an

obligation to indemnify J. H. France upon each carier on the risk at any stage of the development

of the claimant' s asbestos-related disease.

The second question which the Court in J.H. France confronted, and the issue which is

relevant to this motion, is "how to allocate the liabilty of each insurer when, as is commonly the

case, more than one insurer was on the risk at one time or another during the development of the

claimant's disease 6 The Superior Court had developed an apportionment of the obligation

indemnify on a pro rata basis, depending upon the amount of time each policy was in effect

including an obligation of J .H. France for the periods during which it was self-insured. The

Court rejected this approach for several stated reasons.

First, under the terms of any given policy, an insurer contracts to pay all sums which the

insured becomes legally obligated to pay, not some pro rata portion of them. There is no

provision for a reduction in the insurer s liabilty if an injur occurs only in par during the policy

period. Secondly, apportionment of liability on a temporal basis, attractive because of its

measurabilty, assumes a linearity of disease progression which the medical evidence in the case

did not support.

The Third objection was the treatment of J .H. France as if it were an insurer during the

S Id. at 37.

Id. at 39.

provisions , and there is no judicial authority to fabricate additional insurance policies. The

Fourth consideration was that the definition of an "occurrence" which constitutes a risk against

which the insurance was provided, led the Court to reject the pro rata allocation adopted by the

Superior Court. They determined that the definition "suggests that any insurance policy

triggered under the ' multiple trigger ' concept with respect to any specific claim is potentially

liable for the entire amount of any judgment or settlement of that claim 8 The Court further

noted that this determination did not affect the rules of contribution or the "other insurance

provisions of the applicable policies.

The Third Circuit Court of Appeals, applying Pennsylvania law , has determined that J.H.

France was controlling precedent regarding the allocation of costs where multiple policies

provided coverage.9 In a subsequent case

, the Third Circuit adopted J.H. France for the

proposition that "the insurers whose coverage has been triggered were jointly and severally

liable for the full amount of the claim up to policy limits. . . .

Air Products did not analyze whether J.H. France should be "extended" to apply to the

case; rather, it found that J.H. France was controllng wherever multiple policies had been

triggered, and the issue was only one of allocation. Air Products involved bodily injury from

workplace exposure to fumes and gases emitted from welding rod material sold by Air Products

among others. Two different Aetna policies provided coverage, between which the Court was

required to apportion costs.

In Koppers an environmental damage case, the Third Circuit examined whether the

Pennsylvania Supreme Court would extend the holding of H. France to the facts of the case.

The Court predicted that the Supreme Court would extend J.H. France by analyzing the

decision s reasoning. They noted that the Pennsylvania Supreme Court relied heavily upon the

Keene Corp. v. Insurance Co. of North America, 667 F.2d 1034 (D. Cir.1981).

8 J.H. France 534 Pa. at 40.

9 Air Products and Chem. Inc. v. Hartford Acc. And Indem. Co. 25 F.3d 177 , 181 (3d

Cir. 1996).

10 Koppers Co., Inc. v. Aetna Cas. and Sur. Co. 98 F.3d 1440 (3d Cir. 1996).

fact that the literal understanding ofthe policies ' language provided for coverage of all sums

which an insured was obligated to pay.

Erie cites cases which have distinguished J.H. France. 12 In

Wausau Underwriters, the

Cour was confronted with determining "when injuries caused by defective stone fascia first

manifested themselves 13 The Court was not applying the "multiple trigger" approach from J.H.

France to determine coverage according to the time that claimants were exposed to the harmful

condition. The Court quoted Pennsylvania law for the proposition that "(a)n occurrence happens

when the injurious effects of the negligent act first manifest themselves in a way that would put a

reasonable person on notice of injury . 14

Wausau Underwriters does not support Erie s position on the critical issue of joint and

several responsibility for all amounts for which the insured is responsible. Wausau had provided

two policies which were in effect between 1996 and 2005 , when injuries caused by the allegedly

defective stone fascia manifested themselves. Wausau was already defending defendant

Schuylkil under a complete reservation of rights , and the Court concluded that "either of the

Wausau policies may provide coverage . 15

West American involved a class action by homeowners against Scarborough , a developer

and builder of homes, and Lindepuu, a subcontractor of Scarborough who installed doors and

windows. The action asserted that the quality of the doors and windows had been

misrepresented, and had been negligently installed by Lilepuu. The only issue of allocation was

which of the West American policies provided coverage; whether it was the policies in effect

when the doors and windows were installed, or when injury to the plaintiffs became apparent.

II Id. at 1450.

12 Wausau Underwriters Ins. Co. v. State Auto. Mut. Ins. Co. 557 F.Supp.2d 502 , (D.N.J.

2008); West American Ins. Co.. v. Lindepuu 128 F.Supp.2d 220 (E. Pa. 2000); City of Erie

Guaranty Nat. Ins. Co. 109 F.3d 156 (3d Cir. 1997).

13 Wausau Underwriters, 557 F. Supp. at 519.

14 Citing, Appalachian Ins. Co. v. Liberty Mut. Ins. Co., 676 F.2d 56 (3d Cir. 1982).

IS Wausau Underwriters, 557 F.Supp. at 52 I.

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The Court determined that there was no basis to apply the multiple trigger approach , and

concluded that it would only look to when the plaintiffs al1eged they suffered injury.

Similarly, the Court in City of Erie declined to use the multiple trigger approach of

France to determine when the alleged damages from the tort of malicious prosecution occurred,

relying instead on the general rule that such damages occur when they first manifest themselves

because the tort was a single act rather than a progressive and continuous condition.

Archstone s motion does not discuss the trigger for coverage, relying instead on the

Court' s April 5, 2011 Memorandum Decision, which determined that various insurers owed a

duty to defend Archstone on the ground that the various class actions claimed damages

beginning February 10, 2003 through November 2007. The Court was not called upon to

determine which policies from the various insurers which covered Archstone during that period

were triggered. Practically speaking, determining when a particular tenant or claimant in the

class action suffered damage or injury which first became apparent, is a diffcult, if not

impossible task. For the purpose of determining a duty to defend, it is sufficient that the Court

can glean from the complaint that at least one of the members of the class suffered bodily injury

or property damage throughout the entire span of the time when members of the class suffered

InJunes.

Erie argues that the exclusion for mold damage, which may arguably produce a

progressive disease, makes the application of the multiple trigger approach of J.H. France

inappropriate. They argue that property damage is divisible and the costs for indemnification of

such damages may readily be apportioned, depending upon when the damages were first

manifested. This is not, however, a determination which the Court can readily make based upon

a reading of the complaints. Rather, the process of water intrusion , retention and subsequent

damage is an ongoing condition, which the Court believes would result in the application of the

multiple trigger approach under Pennsylvania law.

What is significant is that the cases cited by Erie do not distinguish J.H. France holding

with respect to joint and several liability , once it is determined that multiple policies of insurance

provide coverage for certain damages. While Erie claims that the joint and several liability

holding of H. France should be rejected on policy grounds, it is clearly not against the policy

11-

of Pennsylvania, whose law both sides agree is applicable.

Whether or not it contravenes New York policy has not been established, or even argued.

There are cases interpreting New York law which have rejected both the "multiple trigger" and

first manifestation" theories. 16 Instead, the Second Circuit adopted an "injury in fact" approach

based upon medical and other evidence. Nor is it clear whether New York has adopted a pro rata

allocation of coverage as a general rule, though it has been approved multiple times. The Court

of Appeals has applied a time-on-the-risk pro-rata allocation of coverage for successive ( as

opposed to concurrent policies in this case), and rejected joint and several liability for damages

from toxic substance contamination of soil and groundwater which extended over many years. 17

The Second Department has applied a pro-rata allocation for damages from lead

poisoning for successive policies. 18 The Court does not believe, however, that these decisions

constitute a statement of public policy by New York which would be sufficient to obviate the

application of Pennsylvania law, which quite clearly supports the application of joint and several

liability against concurent insurers. The proponent of a public policy bar to enforcement of

foreign law would have to "establish that to enforce the foreign law ' would violate some

fundamental principle of justice, some prevalent conception of good morals, some deep-rooted

tradition of the common weal' expressed in them 19 By virtue ofJ.H. France Pennsylvania has

determined that multiple carriers are jointly and severally liable. While this may be contrary to

the applicable rule in New York, it is not repugnant or offensive to New York' s public policy.

For the foregoing reasons, Archstone s Motion Sequence No. 43 , for partial summary

judgment alleging breach of contract against Erie Insurance Exchange is granted. Archstone

Motion Sequence No. 44 for leave to amend the second third-party complaint to assert a claim

for bad faith based upon Erie s refusal to reimburse Archstone for its defense costs and to pay

16 American Home Prod. Corp. v. Liberty Mut. Ins. Co. 748 F.2d 760 (2d Cir. 1984).

17 Consolidated Edison Co. ofN.Y. v. Allstate Ins. Co., 98 N. 2d 208 (2002).

18 Serio v. Public Svc. Mut. Ins. Co. 304 A.D.2d 167 (2d Dept. 2003).

19 Schultz V. Boy Scouts of Am., 65 N. 2d 189 202 (1985); See also, Edwards v. Erie

Coach Lines Company, 17 N.Y.3d 306 (2011).

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defense costs is also granted.

This constitutes the Decision and Order of the Court.

Dated: October 26 , 2011C.

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