INSURANCE COMPANY. MAY WE PLEASE HAVE APPEARANCES OF COUNSEL.
(APPEARANCES OF COUNSEL ENTERED.) CHIEF JUSTICE RABNER: WELCOME, COUNSEL.
MR. KINNEY, PLEASE GO AHEAD. YOU MAY REMOVE YOUR MASK AS YOU MAKE YOUR
PRESENTATION. JUSTICE SOLOMON WILL BE PARTICIPATING. THESE GOING TO BE WATCHING
THESE PROCEEDINGS. JUSTIN N. KINNEY: THANK YOU, MR. CHIEF
ASSOCIATE JUSTICES AND JUDGE FUENTES. IF I MAY I'D LIKE TO RESERVE THREE
MINUTES FOR REBUTTAL IF NECESSARY. CHIEF JUSTICE RABNER: THAT'S
FINE. JUSTIN N. KINNEY: YOUR HONOR,'S NEW YORK COUNTY'S
CONCLUSION IN THE ADMIRAL POLICY UNBIG USELY EXCLUDES COVERAGE FOR BODILY INJURY
ACTUALLY OR ALLEGEDLY ARRIVING OUT OF RELATED TO, CAUSED BY CONTRIBUTED
TO BY OR IN ANYWAY CONNECTED WITH OPERATIONS OR ACTIVITIES PERFORMED BY OR ON
BEHALF OF PLAINTIFF RESPONDENT RICHFIELD IN NASSAU COUNTY NEW YORK. PLAINLY
THE INTERPRETATION OF THIS EXCLUSIONARY LANGUAGE REQUIRES AN EXAMINATION OF THE
CONNECTION BETWEEN THE BODILY INJURY FOR WHICH COVERAGE IS SOUGHT ON THE
ONE HAND AND THE EXCLUDED ACTIVITIES ON THE OTHER. YET, IN REVERSING THE JUDGMENT
IN FAVOR OF ADMIRAL, THE APPELLATE DIVISION EXAMINED NOT MRS. LORI TOE'S
BODIES BUT THE CAUSES OF ACTION ASSERTED IN THE COMPLAINT IN THE UNDERLYING ACTION
AND COMPARED THEM ONLY TO CERTAIN OF THE EXCLUDED ACTIVITIES. THIS
ANALYSIS IS SO DIVORCED FROM THE LANGUAGE OF THE EXCLUSION. IT CANNOT BE SUSTAINED.
NOR CAN THE APPELLATE DIVISION'S INTERPRETATION OF THE
CONNECTED PHRASES USED IN THE EXCLUSION. THE APPELLATE DIVISION CONCLUDED THOSE
PHRASES REQUIRED A QUOTE, UNQUOTE, CAUSAL RELATIONSHIP AKIN TO PROXIMATE CAUSE.
THIS DISREGARDS THE LANGUAGE USED THE PUNCTUATION USED AND DECADES OF LAW IN THIS
STATE INTERPRETING SOME OF THESE PHRASES. AS RICHFIELD ITSELF CONCEDEED IN
OPPOSITION TO ADMIRAL'S PETITION ALL THAT IS REQUIRED IT TRIGGER THE EXCLUSION
IS QUOTE, UNQUOTE, SOME CONNECTION BETWEEN THE BODILY INJURY AND THE EXCLUDED
ACTIVITIES. THE APPELLATE DIVISION ALSO DISREGARDED THE PHRASE
ON BEHALF OF IN THE EXCLUSION AND SO NEVER CONSIDER WHETHER THERE WERE OPERATIONS
OR ACTIVITIES ON BEHALF OF RICHFIELD THAT TRIGGERED THE EXCLUSION. THESE
INTER PRE STATION NATURAL INFLUENCES ENABLED THE APPELLATE DIVISION EFFECTIVE TOLL
REWRITE FOR RICHFIELD A BETTER EXCLUSION THAN THE ONE CONTAINED IN THE POLICY
IT PURCHASED. AND, FINALLY, YOUR HONORS THE APPELLATE
DIVISION FAILED TO CONDUCT ITS DUTY TO DEFEND ANALYSIS BASED ON THE ACTUAL FACTS.
THAT ANALYSIS WAS REQUIRED HERE NOT ONLY BASED ON THE EXPRESS LANGUAGE OF THE
EXCLUSION, BUT THE PRINCIPLE FIRST ESTABLISHED BY THIS COURT OVER 50
YEARS AGO IN BURD V SUSSEX MUTUAL INSURANCE COMPANY. WHEREAS HERE THE NAUK ISSUES
ON COVERAGE TERMS WILL NOT BE RESOLVED IN THE UNDERLYING ACTION. THE DUTY
TO DEFEND DOESN'T TURN ON THE ALLEGATIONS OF THE COMPLAINT BUT ON THE ACTUAL FACTS.
THE MOTION COURT RECOGNIZED THIS. THE APPELLATE DIVISION DID NOT.
ON THE ACTUAL FACTS THERE'S NO QUESTION THERE IS SOME CONNECTION BETWEEN
MRS. LORI TOE'S INJURY AND THE EXCLUDED ACTIVITIES. RICHFIELD OWNED THE
CUTTING MACHINE IT DELIVERED IT TO STORE 1206 IN NASSAU COUNTY. RICHFIELD DESIGNED
THE BASE IN WHICH THE CUTTING MACHINE WOULD BE INSTALLED AND USED BY HOME
DEPOT EMPLOYEES. RICHFIELD WORKED CLOSELY WITH HOME DEPOT TO DEVELOP THE TRAINING AND
USER MANUAL GIVEN TO HOME DEPOT EMPLOYEES SO THEY WOULD KNOW HOW TO USE THE
CUTTING MACHINE. AND RICHFIELD HAD A DEDICATED FIELD SERVICE REPRESENTATIVE WHO
VISITED STORE 1206 EVERY TWO TO THREE WEEKS TO MARKET RICHFIELD'S PRODUCTS TO TRAIN
HOME DEPOT'S EMPLOYEES INSPECT, MAINTAIN AND REPAIR THE CUTTING MACHINE
AS NECESSARY. BUT FOR THESE ACTIVITIES THERE IS NO CUTTING MACHINE IN STORE 1206.
IT'S NOT OPERATIONAL. AND MRS. LORI TOE DOESN'T KNOW HOW TO USE IT. IN OTHER
WORDS, BUT FOR THESE ACTIVITIES MRS. LORI TOE'S INJURY DOES NOT OCCUR. AND SO THAT
INJURY AROSE OUT OF RELATED TO OR WAS IN SOME WAY CONNECTED WITH RICHFIELD'S
ACTIVITIES IN NASSAU COUNTY, NEW YORK. EVEN IF ONE WERE TO DISAGREE HOME DEPOT'S
USE OF THE CUTTING MACHINE WAS ON BEHALF OF RICHFIELD BECAUSE RICHFIELD
BENEFITTED FROM THAT USE OF THE CUTTING MACHINE. INDEED, BY PROVIDING CUTTING
MACHINES TO EVERY ONE OF NEARLY 2,000 HOME DEPOT STORES NATIONWIDE RICHFIELD
WAS ABLE TO GENERATE 150 MILLION DOLLARS IN ANNUAL SALES JUST FROM ITS STOCK WINDOW
BLINDS CUT ON THE CUTTING MACHINE. EITHER WAY, THE NEW YORK COUNTY'S EXCLUSION
APPLIES TO PRECLUDE COVERAGE FOR THE UNDERLYING ACTION. SO FOR
THESE REASONS ADMIRAL RESPECTFULLY REQUESTS THAT THIS COURT REVERSE THE
APPELLATE DIVISION AND REINSTATE THE JUDGMENT IN FAVOR OF ADMIRAL DECLARING
IT HAS NO DUTY TO DEFEND OR INDEMNIFY RICHFIELD IN THE UNDERLYING ACTION. THANK
YOU. JUSTICE PATTERSON: IS THAT THE END OF YOUR PRELIMINARILY
STATEMENT. JUSTIN N. KINNEY: THAT IS, YOUR HONOR.
JUSTICE PATTERSON: LET ME ASK YOU A BACKGROUND QUESTION. THE GEOGRAPHIC
EXCLUSION, IS THERE ANYTHING IN THE RECORD ON WHY THIS IS, IS THIS AN ISSUE
WITH RESPECT TO VERDICTS BEING VIEWED AS HIGHER IN THESE COUNTIES OR IS THERE ISN'T
OTHER GEOGRAPHIC SIGNIFICANCE? JUSTIN N. KINNEY: NOTHING
SPECIFICALLY IN THE RECORD, YOUR HONOR, AS TO WHY THE EXCLUSION WAS INCLUDED
BUT IT'S A MATTER OF RISK AVERS TO ZONE COUNTIES IN NEW YORK STATE BASICALLY THE
LOWER TIER COUNTIES, THE NINE LOWER TIER KROINTS IN THE STATE OF NEW YORK
HAVE A REPUTATION FOR HIGHER VERDICTS THAN PERHAPS OTHER COUNTIES IN THE REGION
OR COUNTRY. JUSTICE PATTERSON: SOMETHING IN THE INSURANCE
INDUSTRY GENERALLY IS PREVALENT? JUSTIN N. KINNEY: THIS WAS AN EXCESS
SUR APPLIES LINES PLACEMENT SO THOSE INSURER VS. A LITTLE MORE FLEXIBILITY
I THINK IT COMES DOWN TO A QUESTION OF RISK APPETITE. ADMIRAL DID NOT WANT TO
WRITE CERTAIN RISKS IN THOSE LOWER TIER COUNTIES. JUSTICE ALBIN:
DO YOU KNOW WHETHER OR NOT THE WOMAN HAD OTHER INSURANCE COVERAGE FOR THIS TYPE
OF CLAIM? JUSTIN N. KINNEY: I DO NOT, YOUR HONOR. I DO
NOT BELIEVE THAT WAS EXPLORED. I'M NOT AWARE THAT NORMAN HAD ANY OTHER COMMERCIAL
GENERAL LIABILITY INSURANCE AT THE PRIMARY LEVEL OTHER THAN THE ADMIRAL POLICY.
SO YOUR HONORS AS I MENTIONED AT THE OUTSET THE LANGUAGE OF
THE NEW YORK COUNTIES EXCLUSION COMPELS A COMPARISON OF BODILY INJURY WITH THE
EXCLUDED ACTIVITIES, NOT THE CAUSES OF ACTION WITH THE EXCLUDED ACTIVITIES.
AND I THINK I'D LIKE TO REFER THE COURT TO THE APPELLATE DIVISION'S DECISION IN THE
CONDUIT AND FOUNDATION CORP. CASE THAT WE CITED IN OUR BRIEF WHICH I THINK
IS PARTICULARLY APPROPRIATE HERE. THAT CASE INVOLVED OF COURSE THE STANDARD AUTO
EXCLUSION IN THE CJH POLICY THAT PRECLUDES COVERAGE FOR BODILY INJURY ARISING
OUT OF THE USE OF CERTAIN AUTOS. IN THAT CASE THE GENERAL CONTRACTOR ON A CONSTRUCTION
SITE SOUGHT ADDITIONAL INSURED COVERAGE. THAT INSURER PREDICT PLEASE DENIED
COVERAGE BASED ON THE AUTO EXCLUSION FOR AN AUTO ACCIDENT. AND THE ARGUMENT THE
GENERAL CONTRACTOR MADE WAS WAIT A SECOND I'M NOT BEING SUED FOR AN AUTO
ACCIDENT, I'M BEING SUED FOR A FAILURE TO MAINTAIN AND SUPERVISE THE CONSTRUCTION
SITE. THAT DOESN'T IMPLICATE THE AUTO EXCLUSION AND IT IS COVERED UNDER
THE POLICY. AND THE COURT WENT THROUGH IT EXTENSIVELY ACKNOWLEDGED THAT PERHAPS
AS AN INITIAL MATTER THAT MAY SEEM RATIONAL BUT UNDULY CONCLUDED THAT
ALTHOUGH THE PRINCIPLE CULPRIT OR PRIMARY CULPRIT MAY HAVE BEEN A FAILURE TO MAINTAIN
OR SUPERVISE THE CONSTRUCTION SITE, THERE WAS NO QUESTION THAT THE INJURY
AROSE OUT OF THE USE OF AN AUTO. JUSTICE ALBIN: SO I'M TRYING TO
UNDERSTAND YOUR ADVERSARY'S ARGUMENT. I THINK IT COMES DOWN DO YOU THINK
THE OPERATIONS FOR ACTIVITIES THEY'RE SAYING IT'S NOT RELATED TO.
(TECHNICAL SDIFLTS). JUSTICE ALBIN: THAT THEY'RE ALLEGING STEM
FROM THINGS THAT OCCURRED OUTSIDE OF NEW YORK MANUFACTURED AND DEVELOPED THE WARNINGS.
HOW DO YOU RESPOND TO THAT? JUSTIN N. KINNEY: I THINK YOUR HONOR
ACCURATELY DESCRIBED WHAT THEY'RE ARGUE SCOMBG MY RESPONSE TO THAT IS AS
THE APPELLATE DIVISION CLUED IN THE CONDUIT AND FOUNDATION CORP. CASE THE CAUSES
OF ACTION OF ACTION WERE THFRS OF LIABILITY ASSERTED IN THE UNDERLYING CASE
ARE NOT RELEVANT TO THE INTERPRETATION NAL ANALYSIS. SO THE FACT THAT THE LORI
TOES ARE SEEKING TO HOLD RICHFIELD LIABLE FOR AN ALLEGEDLY DEFECTIVE PRODUCT
DOES NOT FORECLOSE APPLICATION OF THE EXCLUSION HERE. JUSTICE
PATTERSON: YOUR POINT IS THAT THE EXCLUSION COULD HAVE INCLUDED CAUSATION
RELATED LANGUAGE SUCH AS IS ARISING OR SUBSTANTIAL FACTOR IN OR WHAT HAVE
YOU, BUT THIS LANGUAGE IS INTENDED TO GO WELL BEYOND THAT, ANY RELATIONSHIP.
JUSTIN N. KINNEY: NO QUESTION ABOUT IT. JUSTICE PATTERSON:
APART FROM WHO IS RESPONSIBLE APART FROM ULTIMATELY WHO MIGHT BE CONSIDERED
OR WHAT ACTIVITIES MIGHT ULTIMATELY BE FOUND TO HAVE CONTRIBUTED TO THE INJURY.
JUSTIN N. KINNEY: ABSOLUTE RIGHT. AND I WOULD ADD ON TO THAT,
YOUR HONOR, THE FACT THAT THE EXCLUSION DOESN'T SAY WE DON'T COVER BODILY INJURY
WHERE IT'S ALLEGED THAT YOUR ACTIVITIES CAUSED THAT BODILY INJURY. IT SIMPLY
SAYS WE DON'T COVER BODILY INJURY ARISING ACTUALLY OR ALLEGEDLY ARISING OUT OF
RELATED TO OR IN ANY WAY CONNECTED WITH ACTIVITIES BY OR ON YOUR BEHALF IN
NASSAU COUNTY. AND SO THERE'S NOTHING IN THE FACE OF THE EXCLUSION THAT WOULD REQUIRE
A COURT INTERPRETING IT TO LOOK TO THE CAUSES OF ACTION THEORIES OF LIABILITY
ASSERTED IN THE UNDERLYING COMPLAINT. JUSTICE ALBIN: SO IS
CONSTRUCTION OF THE CUTTER AN OPERATION OR ACTIVITY PERFORMED IN NEW YORK COUNTY?
JUSTIN N. KINNEY: YOU MEAN THE MANUFACTURE OF IT, YOUR HONOR?
JUSTICE ALBIN: YES. JUSTIN N. KINNEY: THAT WAS
NOT AN ACTIVITY PERFORMED IN NEW YORK COUNTY. MY UNDERSTANDING IS THAT
ACTIVITY WAS PERFORMED IN CHINA OR CAMBODIA. JUSTICE ALBIN: THE DESIGN OF IT WAS NOT IN NEW YORK COUNTY, CORRECT. JUSTIN N. KINNEY:
WARNING? JUSTIN N. KINNEY: I DON'T BELIEVE THEY
DEVELOPED THE WARNINGS IN NEW YORK COUNTY, YOUR HONOR. JUSTICE
PATTERSON: IN NASSAU COUNTY. JUSTIN N. KINNEY: NASSAU COUNTY. THANK
YOU, YOUR HONOR. SO THE APPELLATE DIVISION'S INTERPRETATION
NAL NEWS EXTENDED BEYOND THE FAILURE TO COMPARE THE BODILY INJURY TO THE
EXCLUDED ACTIVITIES. APPELLATE DIVISION MISINTERPRETED THE CONNECTIVE PHRASES
USED IN THE EXCLUSION. THERE ARE FIVE OF THEM. JUSTICE ALBIN:
I JUST WANT TO SAY IS THE SIMPLE WAY YOU'RE PRESENTING THE CASE. THE OPERATION
ACTIVITY IS JUST THE USE OF THE PRODUCT IN NASSAU COUNTY, THAT'S IT, THAT'S
THE CONNECTOR? JUSTIN N. KINNEY: THAT'S ONE CONNECT FOR, YOUR
HONOR. THEY DELIVER THE MACHINE THERE. THEY OWN IT, THEY MAINTAIN AND REPAIR IT.
THEY INSPECT IT. THEY HAVE FIELD REPRESENTATIVES OUT THERE REGULARLY
EVERY TWO TO THREE WEEKS TO MAINTAIN IT, INSPECT IT REPAIR IT. WITHOUT THOSE
ACTIVITIES THIS ACCIDENT NEVER OCCURS. AND AS I WAS SAYING THE CONNECTIVE PHRASES
JOINED AS THEY ARE BY COMAS AND THE DISJUNCTIVE OR MEANS THAT THERE'S ALTERNATIVES.
THIS COURT HELD LAST YEAR IN SIMMONS VERSUS MERCADO. AS LONG AS YOU
SATISFY ONE YOU SATISFY ALL BECAUSE YOU DON'T NEED TO SATISFY FIVE. RICHFIELD ITSELF
CONCEDEED IN OPPOSITION TO OUR PETITION THAT ALL THAT IS REQUIRED IS SOME
CONNECTION AND BECAUSE OF ALL THOSE ACTIVITIES, YOUR HONOR, THEY'RE UNQUESTIONABLY
IS SOME CONNECTION BETWEEN MRS. LORI TOE'S INJURIES AND THE EXCLUDED ACTIVITIES.
NOW AMONG ALL THOSE PHRASES I DON'T THINK THERE'S ANY DISPUTE
THAT ARISING OF HAS RECEIVED THE MOST ATTENTION FROM THE COURTS IN THIS STATE.
BUT THAT PHRASE IS GIVEN A BROAD AND COMPREHENSIVE INTERPRETATION MEANING
ORIGINATING FROM, GROWING OUT OF OR HAVING A SUBSTANTIAL NEXUS TO.
JUSTICE PATTERSON: THAT SEEMS TO BE THE NARROW YESTERDAY OF THE FIVE PHRASES, ARISING
OUT OF, WHICH IS MOST COMMONLY USED IN INSURANCE AND ELSEWHERE.
JUSTIN N. KINNEY: NO QUESTION ABOUT IT, YOUR HONOR. PATS AND THAT PORTION OF IT
ENDS WITH IN ANY WAY CONNECTED WITH. JUSTIN N. KINNEY: ABSOLUTELY,
YOUR HONOR. AND THE APPELLATE DIVISION HAS HELD IN THE YALE MATERIALS CASE
THAT WE CITED THAT RELATED TO IS BROADER THAN ARISING OUT OF AND I DON'T THINK
ANYONE CAN DISPUTE IN ANY WAY CONNECTED WITH IS BROADER STILL. AND SO AS
LONG AS THERE'S SOME CONNECTION THIS EXCLUSION,. JUSTICE
PATTERSON: SO IF SOMEBODY DROVE THROUGH NASSAU COUNTY TO GET OUT TO SUFFOLK COUNTY
DROVE A MONTH, THROUGH THERE ON THE WAY TO TWLIFR AND LET'S PRETEND FOR A
MOMENT THAT SUL FOX IS NOT ON THE SCLUED LIST WOULD THAT BE ENOUGH,.
JUSTIN N. KINNEY: DROVE TO DELIVER A MACHINE IN SUFFOLK COUNTY, IF THAT WAS THE
ONLY ACTIVITY IN NASSAU COUNTY, YOUR HONOR. JUSTICE
PATTERSON: NASSAU COUNTY. JUSTIN N. KINNEY: IN ISN'T LEVEL IT WOULD
ACCIDENT ON THE ACTUAL CLAIM ASSERTED BUT I WOULD SAY THAT WOULD PROBABLY
NOT BE ENOUGH. JUDGE FUENTES: LET ME GIVE YOU A
HYPOTHETICAL WHEN SEE IF THIS WORKS. JUSTIN N. KINNEY: CERTAINLY,
JUDGE. JUDGE FUENTES: IN ADDITION TO MAKING THE PRODUCT YOU
PROVIDE THE ADDITIONAL TRAINING TO THE EMPLOYEES AND THE LIKE AND MAINTAIN THE
PRODUCT, THE MACHINE THAT CUTS THE BLINDS F THAT WOULD HAVE BEEN SOLD LET'S
SAY TO A NEW JERSEY HOME DEPOT AND THE HOME DEPOT UNILATERALLY MOVED IT TO NASSAU,
AS LONG AS YOUR PEOPLE ARE NOT INVOLVED, THEIR PEOPLE MANUFACTURE AND MAINTAIN
THIS EQUIPMENT AND TRAIN PEOPLE, DO NOT PERFORM THAT ACTIVITY THERE, BY BRINGING
THE MACHINE THAT WAS SOLD IN NEW JERSEY TO NASSAU AND HAD BEEN MAINTAINED
AND PROPERLY TRAINED IN NEW JERSEY, WOULD THAT BE COVERED? JUSTIN
N. KINNEY: I THINK THAT WOULD, YOUR HONOR, BECAUSE IT WOULDN'T INVOLVE ANY ACTIVITY
IN NASSAU COUNTY. JUDGE FUENTES: BY RICHFIELD.
JUSTIN N. KINNEY: BY RICHFIELD IT WOULD HOD R HOME DEPOT'S DECISION TO SHIP
THE CUTTING MACHINE TO NASSAU COUNTY. IF RICHFIELD WAS NOT INVOLVED IN THAT
PROCESS AND DIDN'T SEND SOMEONE THERE TO MAINTAIN IT. JUDGE
FUENTES: ONE OF THE CAUSES OF ACTION OF ACTION IS PRODZ YOU WOULD STILL COVER.
JUSTIN N. KINNEY: ABSOLUTELY. I THINK IT FALLS OUTSIDE THE
SCOPE OF EXCLUSION. I THINK IT'S IMPORTANT TO REMEMBER THIS NOT SOME CUTTING
MACHINE RICHFIELD KEEPS IN A WAREHOUSE SOMEWHERE. RICHFIELD'S PRECEDENT
TESTIFIED THIS CUTTING MACHINE WAS DESIGNED EXCLUSIVELY FOR HOME DEPOT. THE GENESIS
OF THEIR RELATIONSHIP BEGAN WHEN REPRESENTATIVES OF HOME DEPOT VISITED
THEIR MANUFACTURING FACILITIES IN CHINA AND WERE IMPRESSED WITH THE PRODUCT THEY WERE
MANUFACTURING THERE. AND INQUIRED ABOUT ENGAGING IN A BUSINESS RELATIONSHIP.
AND MR. SING SAID IN ORDER TO DO THAT WE HAD TO DEVELOP A CUTTING SOLUTION. SO
RICHFIELD WENT TO ITS CORPORATE PARENT AND ASKED THEM TO DESIGN A CUTTING MACHINE
SPECIFICALLY FOR HOME DEPOT. AND MR. SING SAID THIS CUTTING MACHINE IS NOT IN
ANY OTHER STORE IN THE COUNTRY OTHER THAN HOME DEPOT STORES. EVEN THOUGH
THEY SELL TO BED BATH AND BEYOND AND OTHER BIG BOX RETAILERS. THIS IS AN ESSENTIAL
PART OF RICHFIELD'S OPERATIONS AND THEIR PRECEDENT TESTIFIED THAT IT WAS
A NECESSITY TO THE BUSINESS RELATIONSHIP AS I NOTED AT THE OUTSET 150 MILLION ANNUALLY
OF RICHFIELD'S SALES WERE ON THE STOCK PRODUCT CUT ON THE CUTTING MACHINE.
60 PERCENT OF RICHFIELD'S OVERALL SALES WERE THROUGH HOME DEPOT. IF YOU TOOK AWAY
THE CUTTING MACHINE AS MR. KING HIMSELF SAID, THERE IS NO BUSINESS WITH HOME
DEPOT. NOW THE APPELLATE DIVISION ALSO DISREGARDED THE ON
BEHALF OF LANGUAGE IN THE NEW YORK COUNTIES EXCLUSION. THAT EXCLUSION HAS TRIGGERED
NOT ONLY BY RICHFIELD'S ACTIVITIES, BY ACTIVITIES ON BEHALF OF RICHFIELD
SUCH AS THOSE UNDERTAKEN BY HOME DEPOT. HOME DEPOT USE OF THE CUTTING MACHINE
WAS ON BEHALF OF RICHFIELD BECAUSE RICHFIELD BENEFITTED FROM IT.
RICHFIELD'S ANSWER TO THAT IS WELL, WE DIDN'T BENEFIT DIRECTLY. AND BEFORE THE
APPELLATE DIVISION THEY DESCRIBED IT AS AN INCIDENTAL BENEFIT OFFICER A FUTURE
BENEFIT. JUSTICE PATTERSON: IS THAT ARGUMENT, ISN'T
THAT YOUR WEAKER ARGUMENT? JUSTIN N. KINNEY: I BELIEVE THEY'RE
EQUALLY STRONG, YOUR HONOR, BUT TO SUGGEST THAT. JUSTICE PATTERSON:
ON BEHALF OF HAS A CERTAIN AMOUNT OF SIGNIFICANCE THAT SOUNDS LIKE BEING AN
AGENT FOR SOMEONE DOING SOMETHING ON BEHALF OF A PRINCIPAL. CONTINUE JURS UP THAT
CONTRACT LANGUAGE TO ME CONJURES UP AN AGENCY RELATIONSHIP. I WOULD THINK YOUR MORE STRAIGHTFORWARD ARGUMENT IS ABOUT THE FIVE CONNECTIVE TERMS THAT ARE USED
I CAN CERTAINLY SEE YOUR POINT ON THAT. TO ME IT DEFIES BUSINESS
REALITY TO SUGGEST THAT RICHFIELD DIDN'T BENEFIT EVERY TIME A HOME DEPOT
EMPLOYEE PULLED THAT LEVER. BECAUSE IF THEY DON'T DO IT THEY SIMPLY DON'T HAVE
A RELATIONSHIP AS MR. SING TESTIFIED. GIVEN ALL OF RICHFIELD'S
ACTIVITIES IN NASSAU COUNTY THERE'S NO QUESTION THERE'S A CONNECTION BETWEEN
THE INJURY AND THOSE ACTIVITIES. BUT FOR THOSE ACTIVITIES THE INJURY NEVER OCCURS.
JUSTICE ALBIN: IF THEY DID NOTHING MORE THAN DELIVERED THE
MACHINE WOULD YOUR ARGUMENT BE THE SAME? JUSTIN N. KINNEY:
OUR ARGUMENT WOULD BE THE SAME, YOUR HONOR. JUSTICE ALBIN:
SO ALL THOSE ACTIVITIES,. JUSTIN N. KINNEY: YES, YOUR HONOR.
JUSTICE ALBIN: DON'T MATTER. IT'S THE MERE DELIVERY OF THE CUTTING MACHINE
TO NASSAU COUNTY IS GOING TO FIT WITHIN THOSE BROAD CONNECTORS TO OPERATION
OR ACTIVITY, THAT'S YOUR POSITION, CORRECT? JUSTIN N. KINNEY: YES
IT WOULD, YOUR HONOR. WE'VE HIGHLIGHTED ALL THE OTHER ACTIVITIES JUST TO
STRESS THE ERROR FROM THE APPELLATE DIVISION'S RULING. AND, YOU KNOW, GIVEN THE
BREADTH OF THOSE CONNECTORS, IT IS DIFFICULT TO CONCLUDE THAT THERE'S NO
CONNECTION HERE. NOW RICHFIELD DOESN'T EVEN CHALLENGE OR DOESN'T
EVEN TRY TO DEFEND THE APPELLATE DIVISION'S EFFORT TO COMPARE CAUSES OF ACTION
WITH THE ACTIVITIES. IT JUST IGNORES IT AND SAYS, WELL, THEY COMPARED INJURY
AND THE ACTIVITIES. IF YOU READ THE APPELLATE DIVISION'S DECISION AT EIGHT
THROUGH TEN, THERE IS NO COMPARISON OF INJURY WITH THE ACTIVITIES.
TO BE FAIR, THE APPELLATE DIVISION FRAMED THE ISSUE CORRECTLY AND PURPORTED TO
ANSWER IT BASED ON THE ACTUAL LANGUAGE OF THE EXCLUSION. BUT IN THEN CONDUCTING
ITS ANALYSIS THAT'S SUPPORTED IT'S PURPORTED IT ANSWERED A COMPLETELY DIFFERENT
QUESTION. SO FOR ALL THESE REASONS, YOUR HONOR, I APOLOGIZE,
I HAVE ONE MORE POINT I'D LIKE TO ADD. THAT'S ON THE DUTY TO DEFEND ANALYSIS
BRIEFLY. AGAIN, IN THIS COURT IN BURD V SUSSEX WAS CLEAR THAT WHERE THE ISSUE
ON WHICH COVERAGE TURNS WILL NOT BE RESOLVED IN THE UNDERLYING ACTION THE DUTY
TO DEFEND DEAD ON THE ACTUAL FACTS, NOT THE ALLEGATIONS OF THE COMPLAINT.
HERE, THE ISSUE IN WHICH COVERAGE TURNS IS WAS THERE A CONNECTION BETWEEN THE BODILY
INJURY AND THE EXCLUDED ACTIVITIES. THE CLAIMS ASSERTED IN THE UNDERLYING
ACTION ALL STEM FROM AN ALLEGEDLY DEFECTIVE PRODUCT. THEY HAVE NOTHING TO DO WITH
WHETHER RICHFIELD OR ANYONE ON ITS BEHALF ENGAGED IN OPERATIONS OR ACTIVITIES
IN NASSAU COUNTY. AND SO THE QUESTION ON WHICH COVERAGE WILL TURN AS IN BURD CERTAINLY
JUSTICE WEINTRAUB'S EXAMPLE IN BURD WON'T BE DECIDED IN THE UNDERLYING ACTION
AND THE APPELLATE DIVISION SHOULD HAVE CONDUCTED ITS DUDE TO DEFEND ANALYSIS BASED
ON THE ACTUAL FACTS, NOT THE ALLEGATIONS OF THE COMPLAINT.
JUSTICE PATTERSON: DID THE APPELLATE DIVISION ADDRESS THE FACTS?
JUSTIN N. KINNEY: EXCUSE ME. JUSTICE PATTERSON: THE APPELLATE DIVISION
ADDRESSED THE FACTS. JUSTIN N. KINNEY: IT DID, THREE, YOUR
HONOR, CORRECT. JUSTICE PATTERSON: IT WASN'T THAT THEY DID
NOT CONSIDER THE UNDERLYING FACTS OF THE INJURY? JUSTIN N.
KINNEY: THEY CONSIDERED, THEY SPECIFICALLY NOTED IN THEIR DECISION THREE FACTS,
YOUR HONOR. WE HAVE POINTED OUT A NUMBER OF ADDITIONAL FACTS AND NOTABLY
ABSENCE FROM THE APPELLATE DIVISION'S RECITATION OF THE FACT IS THE FACT THAT
RICHFIELD OWNED THE SOME, DELIVERED IT TO NASSAU COUNTY AND HAD A FEEL SERVICE
REPRESENTATIVE GO TO THE STORE EVERY TWO TO THREE WEEKS TO MAINTAIN AND REPAIR
THE MACHINE AS NECESSARY. IT CERTAINLY WOULDN'T HAVE TAKEN A MAG US IN
OPUS TO ADD THOSE CRITICAL FACTS HERE. BUT RICHFIELD'S ANSWER IS BURD IS INAPPLICABLE
BECAUSE CAUSATION WILL BE RESOLVED IN THE UNDERLYING ACTION. I COMPLETELY
AGREE. CAUSATION WILL BE RESOLVED IN THE UNDERLYING ACTION BUT THE CAUSATION THAT WILL
BE RESOLVED IN THE UNDERLYING ACTION IS LEGAL CAUSATION, PROXIMATE CAUSE.
WHETHER THE DEFECTIVE PRODUCT WAS A SUBSTANTIAL CONTRIBUTING FACTOR TO THE
INJURY, THAT IS NOT GOING TO RESOLVE THE QUESTION OF WHETHER THERE IS SOME
CONNECTION BETWEEN THAT INJURY AND RICHFIELD'S ACTIVITIES IN NASSAU COUNTY. SO
FOR THAT REASON THE DUTY TO DEFEND ANALYSIS SHOULD HAVE BEEN BASED ON THE
ACTUAL FACTS. JUSTICE PATTERSON: WHAT THE NEXUS TO NEW
JERSEY HERE? I MEAN OBVIOUSLY THE DUCK ACTION WAS BROUGHT IN MORRIS COUNTY. WHAT
IS THE NEXUS TO NEW JERSEY? JUSTIN N. KINNEY: ADMIRAL HAS OFFICES
IN CHERRY HILL, YOUR HONOR. JUSTICE PATTERSON: IS THAT A
PRIMARY OFFICE FOR ADMIRAL? JUSTIN N. KINNEY: I THINK IT'S A
SIZEABLE OFFICE OR WHERE A FAIR AMOUNT OF ITS UNDER WRITING OCCURS. I DON'T
BELIEVE THIS POLICY WAS UNDER WRITTEN OUT OF ADMIRAL'S NEW JERSEY'S OFFICES. BUT THAT
IS A CONNECTION TO NEW JERSEY. I DON'T KNOW THE MOTIVATIONS FOR INSTITUTING
THE SUIT IN NEW JERSEY BUT THAT'S ONE CONNECTION, YOUR HONOR.
JUSTICE PATTERSON: THANK YOU. JUSTIN N. KINNEY: SO UNLESS THE COURT
HAS ANY OTHER QUESTIONS FOR ALL THE REASONS WE'VE DISCUSSED THIS AFTERNOON
ADMIRAL WILL RESPECTFULLY REQUESTS THAT THIS COURT REVERSE THE APPELLATE DIVISION
AND REINSTATE THE JUDGMENT IN FAVOR OF ADMIRAL DECLARING IT HAS NO OBLIGATION
TO DEFEND OR INDEMNIFY RICHFIELD. THANK YOU, YOUR HONORS. THANK YOU.
CHIEF JUSTICE RABNER: MR. MR. MILUN. RYAN MILUN: THANK YOU, YOUR HONORS.
AT THE RISK OF MAKING A BIG MISTAKE, I DO WANT TO JUMP OUT OF ORDER ON MY
ARGUMENT AND ADDRESS A POINT THAT COUNSEL FOR ADMIRAL JUST MADE WHEN HE WAS DISCUSSING
BIRD V SUS SECTION AND THE POINT COUNSEL MADE WAS THE ALLEGATIONS AND THE JIRS OF LOR
ITO IN THE UNDERLYING ACTION HAVE ABSOLUTELY NOTHING TO DO WITH THE OPERATIONS OF
RICHFIELD AND THAT IS THE KEY AND THAT IS THE KEY REASON WHY THE EXCLUSION DOESN'T APPLIED.
YOU NEED A LINK BETWEEN THE INJURY AND THE OPERATIONS AND AS COUNSEL JUST CONCEDED,
THERE IS NO LINK PER THE INJURIES THAT LORITO SUFFERED. THE INJURIES THAT SHE
SUFFERED HAVE ABSOLUTELY NOTHING TO DO WOULD THE OPERATIONS OF RICHFIELD IN NASSAU COUNTY
AS THE EXCLUSION REQUIRES. JUSTICE PATTERSON: SO YOU'RE SAYING THAT THERE IS
NO RELATIONSHIP BETWEEN THE PRESENCE OF THE DELIVERY OF THE MACHINE TO NASSAU COUNTY AND
THE INJURY. RYAN MILUN: YES AND HERE IS WHY, JUDGE, THE CONTRACT BETWEEN
RICHFIELD AND HOME DEPOT WAS BETWEEN HOME DEPOT OUT OF THEIR CORPORATE OFFICES IN GEORGIA.
AFTER THAT CONTRACT IS COMPLETED, THE WINDOW COVERINGS ARE ORDERED AND PAID FOR BY HOME
DEPOT, IT IS HOME DEPOT'S CHOICE WHERE THEY SEND THE BLIND TO, WHERE THEY SEND THE CUTTING
MACHINE TO, NOT RICHFIELD'S CHOICE. NOW, IT JUST SO HAPPENS THAT AT THE TIME
OF THE INJURY, I THINK 1600 OUT OF 1900 STORES -- JUSTICE PATTERSON: WHERE
IN THE EXCLUSION LANGUAGE DOES THERE HAVE TO BE A CHOICE ON BEHALF OF RICHFIELD IN ORDER
FOR EVENTS TO CREATE THE CONNECTION THAT IS DESCRIBED THERE? RYAN MILUN:
THERE IS NOTHING IN THE EXCLUSION ABOUT CHOICE YOUR HONOR BUT THE EXCLUSION DOES SAY THE
OPERATIONS HAVE TO OCCUR IN NASSAU COUNTY SO THE POINT HERE IS THAT THE CONTRACT WITH
HOME DEPOT THAT CAUSED THIS CUTTING MACHINE TO APPEAR IN NASSAU COUNTY WAS WITH THE COMPANY
OUT OF GEORGIA; THAT COMPANY DECIDES WE ARE GOING TO HAVE THIS CUTTING MACHINE IN NASSAU
COUNTY. JUSTICE PIERRE-LOUIS: ONCE THE CUTTING MACHINE IS IN NASSAU COUNTY,
RICHFIELD PROVIDES MAINTENANCE, IS AT THE STORE EVERY COUPLE OF WEEKS AND IS TRAINING
EMPLOYEES ON HOW TO USE THE MACHINE SO HOW CAN THAT NOT BE ACTIVITIES OF RICHFIELD IN
NASSAU COUNTY WHEN THEY ARE CONDUCTING ALL OF THOSE ACTIVITIES IN THAT STORE.
RYAN MILUN: THOSE ARE MOST CERTAINLILY ACTIVITIES IN NASSAU COUNTY BUT THE KEY POINT FOR
THE EXCLUSION IS WERE THOSE ACTIVITIES THE CAUSE OF THE INJURY. JUSTICE
PIERRE-LOUIS: HOW CAN YOU READ INTO THAT EXCLUSION WHAT YOU'RE TRYING TO SAY IS IN
THERE? WHERE IN THIS EXCLUSION DOES IT SAY THAT THE CAUSE OF THE INJURY HAS
TO BE -- GO AHEAD, I DON'T SEE WHERE THAT IS STATED IN THE EXCLUSION. RYAN
MILUN: THE EXCLUSION RIGHT HERE, INSURANCE DOESN'T APPLY TO BODILY INJURY ACTUALLY
ALLEGED IT SAYS ARISING OUT OF, RELATED TO, CAUSED BY, CONTRIBUTED TO BY OR IN ANY WAY
CONNECTED WITH OPERATIONS OR ACTIVITIES PERFORMED BY OR ON BEHALF OF ANY INSURED IN THE
COUNTY SHOWN. SO THE KEY INQUIRY IS WHERE DID THE ACTIVITIES TAKE PLACE, NO. 1 AND CAN YOU
CONNECT THOSE ACTIVITIES TO THE INJURY. THE EXCLUSION ITSELF SPECIFICALLY
SAYS CAUSED BY AND THIS COURT IN FLOM V CARD DEE EL LOW WHEN IT WAS DEALING WITH THE ARISING
OUT OF LANGUAGE AND TALKED ABOUT THE SUBSTANTIAL NEXUS IT ALSO SAID IF YOU HAVE AN EXCLUSION
THAT HAS MULTIPLE, WHAT YOU CALL THEM PROFRGSZ ARISING OUT OF RELATED TO CAUSED BY, ETC.,
IF YOU LOOK AT ALL OF THEM AND YOU SEE WHAT THE EXCLUSION MEANT -- CHIEF JUSTICE
RABNER: EVEN IF THE WORD OR IS CONTAINED THERE YOU LOOK AT ALL OF THEM? RYAN
MILUN: I'M SORRY. THE COURT: THE WORD OR CONNECTS THESE DIFFERENT VERBS,
THESE DIFFERENT WORDS, WHY MUST YOU LOOK TO ALL OF THEM? RYAN MILUN: BECAUSE
TO UNDERSTAND THE CONTEXT OF THE ENTIRE EXCLUSION THAT'S WHY YOU LOOK AT THEM ALL. IT
DOESN'T MEAN YOU HAVE TO SATISFY EACH AN EVERY ONE, BUT TO TRY TO UNDERSTAND THE MEANING
OF WHAT THEY ARE TRYING TO SAY HERE -- CHIEF JUSTICE RABNER: ISN'T IT
SATISFACTORY IF YOU SATISFY JUST ONE OF THEM BECAUSE THERE IS A DISJUNCTIVE?
RYAN MILUN: THAT'S ABSOLUTELY CORRECT, YOUR HONOR. YOU DO ONLY HAVE TO SATISFY ONE OF
THE FIVE AND HERE, ADMIRAL CAN'T SATISFY ANY OF THE FIVE BECAUSE, AGAIN, THE SPECIFIC
OPERATIONS OF RICHFIELD WITHIN NASSAU COUNTY, THE MAINTENANCE OF THE MACHINE, THE CLEANING
OF THE BAY, THE SETTING UP OF THE BAY, THOSE ACTIVITIES HAVE NOTHING TO DO WITH THE INJURY
THAT LORITO WAS ALLEGING IN THE UNDERLYING COMPLAINT POOER POOEFR WLARD TO THE MACHINE,
THE CLEANING WITH REGARD TO IT THE MAINTENANCE OF IT, THE CREATION OF THE BAY, THAT'S
ALL CONNECTED TO, THAT'S RELATED TO THE MACHINE. RYAN MILUN: IT'S RELATED
TO THE MACHINE ITSELF BUT LORITO IS NOT ALLEGING THAT THERE WAS A FAILURE OF MAINTENANCE
AN THAT'S WHAT CAUSED HER INJURY. JUSTICE PATTERSON: IF YOU HAD ONLY CAUSATION
OR EVEN ARISING OUT OF, YOU WOULD HAVE A STRONG ARGUMENT HERE. THIS LANGUAGE SUGGESTS
AN INTENT AND I UNDERSTAND THE DRAFTER IS THE INSURER, TO BE AS EXPANSIVE AS POSSIBLE
AN GO BEYOND CAUSATION. RYAN MILUN: WELL, YOUR HONOR, IF THEY WANTED IT
TO SAY ANY ACTIVITIES IN NASSAU COUNTY BAR COVERAGE, THEY ABSOLUTELY COULD HAVE WRITTEN
THE EXCLUSION THAT WAY. THEY WROTE THE EXCLUSION. THE INSURANCE COMPANY WROTE THE
EX SOLUTION EX SCLOUSHGS TO EXCLUSION TO REQUIRE THAT THE ACTIVITY, THE OPERATION OR THE
INJURY HAVE A CONNECTION SO YOU HAVE TO LOOK AT THE SPECIFIC ACTIVITIES, THE SPECIFIC
OPERATIONS AND DRAW A CONNECTION AND THAT'S WHAT IS MISSING HERE. JUSTICE ALBIN:
SO THE INSURANCE COMPANY KNEW THE PRODUCT THAT YOU SOLD, RIGHT, BLIND AND THE CUTTING
MACHINE. WHY DO YOU THINK THEY PUT THAT PARTICULAR PROVISION IN THAT POLICY
THAT THEY ISSUED TO YOU? WHAT DO YOU THINK THEIR PURPOSE WAS?
RYAN MILUN: THEIR PURPOSE WAS TO AVOID COUNTIES SUCH AS NASSAU COUNTY WHERE THERE IS A
TENDENCY TOWARD EXCESSIVELY LARGE VERDICTS, THAT IS THE EXPLANATION AS TO WHY THESE COUNTIES
ARE EXCLUDED OR. AT LEAST LET'S SAY WE CAN SURMISE FROM THE COUNTIES.
JUSTICE ALBIN: THE INTENT WAS NOT TO ENSURE YOUR PRODUCT IN THOSE COUNTIES WHERE THEY
COULD GET SUED? RYAN MILUN: IT IS LIKE THEY ARE TRYING TO --
JUSTICE ALBIN: WHAT DID YOU THINK YOU WERE GETTING OR NOT GETTING IN THE INSURANCE
POLICY? RYAN MILUN: WHAT WE WERE GETTING IS IF WE PERFORM OPERATIONS IN
NASSAU COUNTY THEN THOSE OPERATIONS ARE EXCLUDED. JUSTICE ALBIN: SO WHAT
WOULD THOSE BE? I AM TRYING TO UNDERSTAND, WHAT WOULD THOSE BE?
SINCE YOU'RE MANUFACTURING BLIND AND ALSO THIS CUTTING MACHINE AN YOU'RE SENDING IT TO
THESE STORES, LIKE WHAT ARE YOU -- WHAT ARE THEY TRYING TO EXCLUDE? RYAN MILUN:
WELL, RIGHT NOW, ADMIRAL IS TRYING TO EXCLUDE EVERYTHING. JUSTICE ALBIN:
I UNDERSTAND, BUT WHAT DID YOU REASONABLY BELIEVE THEY WERE ATTEMPTING TO EXCLUDE BASED
UPON THE LANGUAGE IN THE POLICY? RYAN MILUN: THAT IF WE HAD OPERATIONS
WITHIN ONE OF THOSE DESIGNATED COUNTIES AN THOSE OPERATIONS CAUSED AN INJURY OR AN INJURY
AROSE OUT OF THAT OPERATION. JUSTICE ALBIN: WHAT WOULD CONSTITUTE AN OPERATION,
FROM YOUR POINT OF VIEW. RYAN MILUN: THE MAINTENANCE OF THE MACHINE. WE'RE
NOT SAYING THERE WERE NO OPERATIONS IN NASSAU COUNTY, WE'RE SAYING THE MAINTENANCE OF THE
MACHINE IS AN OPERATION OR ACTIVITY IN NASSAU COUNTY, THE SETTING UP OF THE BAY IS AN
OPERATION OR ACTIVITY WITHIN NASSAU COUNTY. JUSTICE PIERRE-LOUIS: IF THERE WAS
AN INJURY BASED ON THE WAY IN WHICH THIS MANNER OF THE BAY WAS SET UP IT WOULDN'T BE COVERED.
RYAN MILUN: IF THE BAY WAS SET UP IN A NEGLIGENT WAY AND THE CUTTING MACHINE
FELL ON SOMEBODY THAT WOULD BE EXCLUDED UN THIS POLICY. IF THE UNDERLYING
PLAINTIFF, LORITO WAS ALLEGING YOU NEVER MAINTAINED THIS MACHINE PROPERLY AND THAT'S
WHY I CUT MY FINGERS OFF THAT WOULD BE EXCLUDED BY THIS EXCLUSION. JUSTICE
PIERRE-LOUIS: IT IS NOT IN THE CONVERSE BECAUSE THEY HAVE BEEN MAINTAINING IT, THEY HAD
BEEN MAINTAINING THE MACHINE, BUT NOW IT SHOULD BE -- NOW IT IS EXCLUDED? RYAN
MILUN: WHAT I AM SAYING IS THE MAINTENANCE OF THE MACHINE, WE'RE NOT DISPUTING THAT THAT WAS
SOMETHING THAT RICHFIELD DID IN NASSAU COUNTY. IF LORITO'S INJURY WAS AS A RESULT OF
A LACK OF MAINTENANCE OR IMPROPER MAINTENANCE, THAT WOULD BE EXCLUDED BY THIS EXCLUSION.
JUSTICE PIERRE-LOUIS: IF YOU HAD ONLY CAUSED BY, I WOULD AGREE WITH YOU,
IF YOU HAD CAUSED BY AND YOU INSISTED ON THE REST OF THE LANGUAGE GOING OUT OR IT HAD
NEVER BEEN THERE, THAT'S A VERY STRONG ARGUMENT THAT THERE HAS TO BE A CAUSATION ANALYSIS
IN THE KORJ DISPUTE THIS IS JUSTICE PATTERSON CLOP BUT THE LANGUAGE GOES WELL BEYOND THAT
AND IS GENERAL, ESPECIALLY IN THE LAST PHRASE, I DON'T KNOW HOW YOU COULD DRAFT IT TO BE
MORE GENERAL THAN IT'S DRAFTED. RYAN MILUN: JUDGE, YOU CAN DRAFT IT TO BE
MORE BROAD BY SAYING ANY ACTIVITIES IN NASSAU COUNTY ARE EXCLUDED, THAT'S IT.
JUSTICE PATTERSON: THAT WOULD MAKE NO SENSE AT ALL. RYAN MILUN: EXACTLY.
JUSTICE PATTERSON: BECAUSE AN EXCLUSION IS ABOUT A CLAIM AND YOU WOULDN'T
HAVE A PROVISION IN AN INSURANCE POLICY THAT SAYS THIS EXCLUDES ALL ACTIVITIES. IT HAS
TO BE TIED IN WITH A CLAIM. MILL MILL YOUR HONOR, THAT'S EXACTLY MY POINT. IT HAS TO BE
TIED IN. JUSTICE PATTERSON: THEY'VE TIED IT IN IN THE MOST GENERAL POSSIBLE
LANGUAGE THEY COULD, ESPECIALLY THAT LAST PHRASE, OR IN ANY WAY CONNECTED WITH.
RYAN MILUN: RIGHT, ANY WAY CONNECTED WITH ACTIVITIES IN NASSAU COUNTY -- EXCUSE ME THE
ACTIVITIES IN NASSAU COUNTY ARE KEBTD TO THE INJURY. JUDGE FUENTES: COUNSEL,
IS YOUR SELLING OF THE PRODUCT IN NASSAU COUNTY AN ACTIVITY. RYAN MILUN:
NO, BECAUSE, AGAIN, RICHFIELD DOES NOT SELL THEIR PRODUCT IN NASSAU COUNTY, RICHFIELD
DOES NOT SELL THEIR PRODUCT TO THE GENERAL PUBLIC. JUDGE FUENTES: YOU KNOW
THAT WILL HOME DEPOT HAVE STORES ALL OVER THE UNITED STATES AN PERHAPS EVEN BEYOND BUT
THEY KNOW THEY HAVE BUSINESSES IN THOSE COUNTIES. YOUR COMPANY KNOWS THAT
HOME DEPOT WILL PLACE THOSE. RYAN MILUN: AND THAT BREATH OF THAT EXCLUSION
IS HOW ADMIRAL IS ARGUING THAT IT SHOULD APPLY. THE MERE FACT THAT YOU PLACE THESE CUTTING
MACHINES AN THESE BLIND INTO THE STREAM OF COMMERCE AN IT ENDS UP IN A COUNTY THAT IS
DESIGNATED IS ENOUGH, BUT THAT'S NOT ENOUGH THEY DON'T JUST SAY IF YOUR PRODUCTS APPEAR
IN NASSAU COUNTY AND AN INJURY A, OCCURS THAT'S IT. THEY CREATED THE ARRAYSING OUT OF
LANGUAGE, THE RELATED TO LANGUAGE, THE IN CONNECTION TO LANGUAGE SO WHAT YOU HAVE TO DO
IS DRAW THAT CONNECTION BETWEEN THE INJURY AND THE OPERATION. I THINK WHAT IS ALSO
IMPORTANT HERE IS WE'RE TALKING ABOUT A DUTY TO DEFEND, THAT'S THE CONTEXT IN WHICH THIS
EXCLUSION IS BEING THAT ANALYZED, AND LIEBLTD INSURANCE IS ESSENTIALLY LITIGATION INSURANCE
BECAUSE BUSINESSES ARE LOOKING FOR THEIR INSURANCE CARRIER TO DEFEND THEM WHEN A
LITIGATION ARISES AND THAT'S THE CONTEXT THAT WE'RE INTERPRETING THIS EXCLUSION.
SO IF THERE IS THE POSSIBILITY OF COVERAGE THEN THE DUTY TO DEFEND CORRESPONDS.
JUSTICE PATTERSON: THE FACT IS THAT THE DUTY TO DEFEND DOESN'T EXIST IF THE EXCLUSION
APPLIES. DO YOU CONTEST THAT AT ALL? RYAN MILUN: IF THE EXCLUSION
APPLIES AN AGAIN THAT'S -- JUSTICE PATTERSON: THERE IS NO DUTY TO INDEMNIFY
-- RYAN MILUN: IN THIS PARTICULAR CASE YOUR HONOR, THAT'S THE ONLY EXCLUSION
THAT IS REALLY APPLICABLE HERE. SO IF ADMIRAL IS ABLE TO ESTABLISH WHETHER IT IS ON THE
FACE OF THE COMPLAINT, WHICH WE KNOW THEY CAN'T OR WITH THE FACT OUTSIDE OF THE COMPLAINT
THAT WERE DEVELOPED EITHER IN DISCOVERY IN THE LOR ROOET TOE CASE OR IN DISCOVERY IN THE
DECLARATORY JUDGMENT ACTION, IF THEY CAN ESTABLISH THAT CONNECTION THEN THEY CAN
TRIGGER THE EXCLUSION. THE COURT: YOU GAVE ANSWERS TO JA'S QUESTION A LITTLE
BIT EARLIER ABOUT ACTIVITIES THAT ARE NOT COVERED BY THE EXCLUSION SUCH AS MAINTENANCE.
CAN YOU FLIP IT AROUND AND GIVE US EXAMPLES OF ACTIVITIES THAT ARE COVERED,
ACTIVITIES OR OPERATIONS? RYAN MILUN: IF I DID SAY THAT, I MISSPOKE, THE
ACTIVITY, SUCH AS MAINTENANCE, I AM NOT SAYING IT IS NOT COVERED BY THE EXCLUSION.
WHAT I AM SAYING IS, IF THERE IS MAINTENANCE OF THE MACHINE AND THE INJURY AROSE OUT OF
THAT MAINTENANCE, THAT TRIGGERS THE EXCLUSION. THE ACTIVITIES AREN'T INTERPRETED OR LOOKED
AT IN A VACUUM. JUSTICE PATTERSON: IF YOU HAD AN AND INSTEAD OF AN OR I
WOULD SAY THAT WAS A VERY STRONG ARGUMENT, BUT YOU'VE GOT AN OR AND YOU'VE GOT OR IN ANY
WAY CONNECTED WITH AS THAT LAST PHRASE. RYAN MILUN: YOUR HONOR, EVEN WITH
THE OR, THE CARRIER HAS TO ESTABLISH THAT IT IS ARISING OUT OF, THE INJURY ARISES OUT
OF OR IT'S RELATED TO THE ACTIVITIES OR, IT'S CAUSED BY OR IT'S CONTRIBUTED TO BY, OR
IT'S IN ANY WAY CONNECTED WITH. SO THE POINT IS THAT THEY STILL, THE CARRIER
STILL HAS TO ESTABLISH SOME WAY THAT THE ACTIVITIES AN THE INJURY ARE LINKED AND THAT
IS WHAT IS MISSING HERE BECAUSE BASED ON THE ALLEGATIONS AND IN THE UNDERLYING COMPLAINT.
JUSTICE PATTERSON: ARE YOU CONTENDING THAT THIS LANGUAGE SHOULD BE READ
TO REQUIRE A CONTRIBUTORY RELATIONSHIP TO THE POTENTIAL LIABILITY UNDER THE CAUSES OF
ACTION AND, IF SO, HOW DO YOU GET AROUND THE LANGUAGE? RYAN MILUN: I'M
SORRY WHAT WAS THE LAST PART. JUSTICE PATTERSON: HOW DO YOU GET AROUND THIS
LANGUAGE THAT GOES WELL BEYOND -- I MEAN ARISING FROM IS GENERALLY CONSIDERED TO BE A
CAUSATION ELEMENT, SUBSTANTIAL FACTOR IS PART OF THAT MIX, BUT U FIVE DIFFERENT PHRASES
HERE THAT GO BEYOND THAT. RYAN MILUN: ONE OF THE PHRASES IS CAUSED BY, I
WOULDN'T SAY CALLSED BY IS ANY LESS THAN -- REGARDLESS -- JUSTICE PATTERSON:
YOU'VE GOT A DIS JUNT I HAVE SET OF PHRASES HERE. RYAN MILUN: WE'RE NOT
DISPUTING THAT ANY ONE OF THESE CAN SATISFY THE EXCLUSION, BUT THE POINT IS THAT YOU STILL
HAVE TO CONDUCT THE ANALYSIS, YOU STILL HAVE TO LOOK AT THE ACTIVITY. YOU STILL HAVE
TO LOOK AT THE INJURY AND YOU HAVE TO DRAW THAT NEXUS BETWEEN THE TWO. AND
THAT'S WHAT IS MISSING HERE. THERE IS NO NEXUS BETWEEN THE INJURY, WHICH LORITO HAS ALLEGED
IS BASED ON A DESIGN DEFECT OR MANUFACTURING DEFECT OR A FAILURE TO WARN, THERE IS NO
NEXUS BETWEEN HER, THE INJURY OF HER CUTTING HER FINGERS OFF AND ANY OF THE FIVE OR SIX
ACTIVITIES OR OPERATIONS THAT RICHFIELD CONDUCTED IN NASSAU COUNTY. THE MERE
FACT THAT THEY HAD ACTIVITIES IN NASSAU COUNTY IS ESSENTIALLY WHAT THE TRIAL COURT WAS
FOCUSING ON AND THEY SAID LOOK, YOU DID THINGS IN NASSAU COUNTY THE EXCLUSION EXCLUDES
NASSAU COUNTY ACTIVITIES, END OF INQUIRY. THE APPELLATE DIVISION RIGHTLY SAID
IT'S NOT JUST THE ACTIVITIES, YOU HAVE TO LOOK AT THE NEXUS AN THERE IS NO NEXUS AN THAT'S
WHY THE NEW YORK COUNTY'S EXCLUSION DOESN'T APPLY HERE. THAT'S WHY THERE IS COVERAGE.
NOW, ADDRESSING THE BIRD V SUS SECTION ISSUE -- JUSTICE
PATTERSON: THE TRIAL COURT WAS FOCUSED ON OR RELATED, THE RELATED TO OR IN ANY WAY
CONNECTED TO LANGUAGE. IT IS NOT THAT THE TRIAL COURT DIDN'T CONSIDER THE ACTUAL LANGUAGE
OF THE EXCLUSION. RYAN MILUN: THE TRIAL COURT LOOKED AT THE EXCLUSION, BUT
WHAT THE TRIAL COURT DIDN'T DO WAS DRAW A LINK BETWEEN ANY OF THE ACTIVITIES AND THE INJURY.
THEY ESSENTIALLY SAID HERE IS WHAT THE EXCLUSION -- THE TRIAL COURT ESSENTIALLY SAID HERE
IS WHAT THE EXCLUSION SAYS, HERE IS THE ACTIVITIES OF RICHFIELD. THE CUTTING MACHINE
IS IN NASSAU COUNTY AND THAT'S ENOUGH ACCORDING TO THE TRIAL COURT. BUT, AGAIN,
THE APPELLATE DIVISION LOOKED AT IT AND SAID THAT'S NOT ENOUGH, JUST PLACING THE PRODUCT
IN THE STREAM OF COMMERCE IS NOT ENOUGH. THIS IS NOT A PRODUCTS LIABILITY ANALYSIS, THIS IS
AN INSURANCE COVERAGE ANALYSIS SO WE HAVE TO LOOK AT WHAT WAS THE CONTRACT BETWEEN ADMIRAL
AND RICHFIELD, WHAT WAS EXCLUDED AND THAT NEXUS IS WHAT IS REQUIRED, WHICH IS WHAT THE
APPELLATE DIVISION FOCUSED ON AND SAID LET'S LOOK AT THESE ACTIVITIES, LET'S LOOK AT THE
INJURY, CAN WE FIND ANY NEXUS BETWEEN THE TWO AND THE APPELLATE DIVISION RIGHTLY CONCLUDED
THAT THERE WASN'T BECAUSE LORITO WASN'T SAYING YOU DIDN'T MAINTAIN THE CUTTING MACHINE
APPEND THAT'S WHY I CUT MY FINGERS OFF. THE UNDERLYING PLAINTIFF DIDN'T SAY, YOU KNOW,
THE BAY WHERE THE MACHINE WAS LOCATED WASN'T SET UP PROPERLY AND THAT WAS THE CAUSE OF
MY INJURY OR THAT'S WHY I INJURED MYSELF. IT HAS NOTHING TO DO WITH IT. AS
COUNSEL ADMITTED HERE IN ORAL ARGUMENT TODAY THE UNDERLYING COMPLAINT HAS ABSOLUTELY NOTHING
TO DO WITH RICHFIELD'S OPERATIONS. JUSTICE PATTERSON: I DON'T THINK I HEARD
COUNSEL SAY THAT. RYAN MILUN: AT THE VERY ENDS OF HIS ARGUMENT YOUR HONOR,
WHEN HE WAS DISCUSSING BIRD V SUS SECTION AND TALKING ABOUT THE ALLEGATIONS WITHIN THE
COMPLAINT COUNSEL SPECIFICALLY SAID THE UNDERLYING COMPLAINT HAS ABSOLUTELY NOTHING
TO DO WITH THE OPERATIONS OF RICHFIELD IN NASSAU COUNTY AND THAT'S WHY I STARTED BY ARGUMENT
THERE BECAUSE I THINK THAT IS CRITICAL BECAUSE, AGAIN, THAT UNDERLYING COMPLAINT IS WHAT
YOU'RE ANALYZING WHEN YOU'RE DEALING WITH THE DUTY TO DEFEND AND WHETHER YOU'RE APPLYING
AN EXCLUSION, YOU'RE LOOKING AT WHAT IS GOING ON IN THE UNDERLYING ACTION AND HOW DOES
IT FIT WITHIN THE TERMS OF THE POLICY. NOI, BIRD V SUS SECTION AND S L INDUSTRIES,
YOU KNOW, YOU CAN LOOK OUTSIDE OF THE COMPLAINT AND WE'RE NOT SAYING THAT YOU CAN'T.
IN FACT, THE APPELLATE DIVISION DID JUST THAT, THEY LOOKED OUTSIDE THE COMPLAINT.
THE COMPLAINT SAYS NOTHING ABOUT OPERATIONS OF RICHFIELD, BUT THEY LOOKED OUTSIDE IT AN
SAID WELL, LET'S LOOK AT WHAT THESE OPERATIONS ARE AND LET'S DRAW A NEXUS AN THEY WEREN'T
ABLE TO DRAW A NEXUS BECAUSE THERE IS NO NEXUS QUITE FRANKLY. SO THERE WAS
NO ISSUE WITH THE APPELLATE DIVISION, AS FAR AS, YOU KNOW NOT COMPLYING WITH THE REQUIREMENTS
OF BIRD, THEY ACTUALLY DID COMPLY WITH THE REQUIREMENTS OF BIRD, THEY LET ADMIRAL
ESSENTIALLY MAKE ARGUMENTS OUTSIDE OF THE UNDERLYING COMPLIANT TO EITHER CONFIRM OR
DENY COVERAGE WHICH IS PERFECTLY -- FOOINT FOOINT LET ME SEE IF I UNDERSTAND YOU CORRECTLY.
JUDGE FUENTES: THIS IS A PRODUCTS LIABILITY CASE, EITHER DESIGN DEFECT OR
THE EMPLOYEE HAD HER FINGER AMPUTATED BECAUSE SHE WAS TRYING TO CUT THE BLIND AS PROVIDED
BY RICHFIELD SO THIS IS A PRODUCTS LIABILITY CASE, EITHER DESIGN OR SOME FORM OF
MALFUNCTION WITH THE MACHINE. SO WHAT YOU'RE SAYING IS BECAUSE THE MACHINE
WAS NOT DESIGNED OR MANUFACTURED IN NASSAU, IS AS A COVERED -- IT IS EXCLUDED FROM COVERAGE.
RYAN MILUN: THAT'S RIGHT BECAUSE THE EXCLUSION DESIGNATES COUNTIES WHERE
THE OPERATIONS HAVE TO TAKE PLACE. JUDGE FUENTES: THAT'S HOW YOU DEFINE
ACTIVITY, ACTIVITY TO YOU IS THE MANUFACTURING OR THE DESIGN OF THE MACHINE. RYAN
MILUN: MANUFACTURING OF THE MACHINE AND THE OTHER ACTIVITIES THAT WE HAD DISCUSSED, THE
MAINTENANCE, THE SETTING UP OF THE BAY, ETC., THOSE ARE ACTIVITIES IN NAGS NASSAU COUNTY
BUT THERE IS NO NEXUS BETWEEN THE INJURY AN WHATEVER ACTIVITIES RICHFIELD HAD IN NASSAU
COUNTY AND IF WE WANT TO TAKE THE BROADEST POSSIBLE INTERPRETATION OF THE EXCLUSION AND
PROCEED WITH WHAT ADMIRAL IS ARGUING AND SAY LOOK THE MERE FACT THAT THIS MACHINE ENDS
UP IN NK NASSAU COUNTY THERE IS A CUTTING MACHINE IN NASSAU COUNTY THAT SOMEBODY USED
TO CUT THEIR FINGERS OFF THAT'S ENOUGH THAT IS EXCLUDED THAT'S THE BROADEST WAY THAT YOU CAN
INTERPRET THIS, I WOULD ARGUE THAT THAT IS NOT WHAT THE EXCLUSION SAYS AND ALSO, ON THE
FACTS, THE MACHINE ENDS UP IN NASSAU COUNTY AS A RESULT OF HOME DEPOT'S DECISION, THE
MACHINE GETS USED BY HOME DEPOT AS PART OF THEIR OPERATIONS, WHICH IS SELLING BLIND TO
CUSTOMER SPECIFICATIONS. JUSTICE PATTERSON: THAT WOULD ALL BE VERY RELEVANT
IF THE EXCLUSION LANGUAGE SAID -- IF IT SAID AS A RESULT OF RICHFIELD'S DECISIONS, BUT
THAT'S NOT IN THERE EITHER. RYAN MILUN: I DON'T THINK IT HAS TO DO WITH
AERLT OF RICHFIELD'S DECISION. JUSTICE PATTERSON: YOU SAY IT'S RELEVANT
THAT HOME DEPOT MADE A DECISION WHERE THESE MACHINES SHOULD BE DEPLOYED AND RICHFIELD
SIMPLY FOLLOWED THE DIRECTIONS OF HOME DEPOT IN DELIVERING BUT THERE IS NOTHING IN THERE
ABOUT HOW IT HAS TO BE THE INITIATIVE OF RICHFIELD IN ORDER TO GET THE MACHINE INTO
NASSAU COUNTY TO MEET THE TERMS OF THE EXCLUSION IT'S MUCH BROADER. RYAN MILUN:
WHAT THAT ISSUE GOES TO IS WHETHER OR NOT THE MACHINE BEING IN NASSAU COUNTY IS AN
OPERATION OF RICHFIELD. IT'S NOT. JUSTICE PATTERSON: YOU SHOWED UP WITH
A TRUCK. RYAN MILUN: AS A RESULT OF WHAT HOME DEPOT DICTATED WE DO WITH
THE CUTTING MACHINE AS PART OF THEIR ORDERS WITH US AND THEN IF YOU GO A STEP FURTHER,
NOW THE MACHINE IS IN NASSAU COUNTY AND WHAT ADMIRAL IS ARGUING AND I THINK YOUR HONOR
ADDRESSED THIS AS WELL IS, IS HOME DEPOT'S EMPLOYEE'S USE OF THE MACHINE A CONTINUATION
OF RICHFIELD'S OPERATIONS. JUSTICE ALBIN: DID YOU DELIVER THE CUTTING MACHINE
FROM YOUR WAREHOUSE? RYAN MILUN: TO NASSAU COUNTY, YES. JUSTICE
ALBIN: SO YOU DIRECTLY DELIVERED IT. RYAN MILUN: BASICALLY THE SHUTTERS
AN BLIND ALONG WITH THE CUTTING MACHINE GET DELIVERED TO HOME DEPOT, WE SET UP THE BAY
AND THEN AFTER THAT, YOU KNOW, THE OTHER ACTIVITIES, MAINTENANCE, ETC., SWITCHING
BLADES, IF NECESSARY. JUSTICE ALBIN: YOU DON'T THINK THAT DELIVERY IS AN
ACTIVITY? RYAN MILUN: IF YOU WANT TO ARGUE THAT DELIVERY IS AN ACTIVITY
IN NASSAU COUNTY, THAT'S FINE, BUT, AGAIN, DOES THE DELIVERY OF THE MACHINE, IS THAT
CAUSING A NEXUS BETWEEN -- JUSTICE ALBIN: DELIVERY OF YOUR DEFECTIVE MACHINE
IS WHAT THEY ARE SAYING, DELIVERY OF YOUR DEFECTIVE MACHINE TO THE STORE.
RYAN MILUN: ALLEGEDLY DEFECTIVE I WOULD ARGUE, JUSTICE ALBIN AL OF COURSE.
RYAN MILUN: THE POINT IS THAT THE DELIVERY OF THE MACHINE, THE FACT THAT THE MACHINE EXISTS
IN NASSAU COUNTY, WHAT ADMIRAL IS SAYING THAT'S ENOUGH, ANYTHING THAT HAPPENS AFTER THAT
IS ENOUGH AND THAT'S ENOUGH TO SATISFY THIS EXCLUSION. WE'RE SAYING EXCLUSIONS, AGAIN,
PUTTING ASIDE THESE FIVE PHRASES, ONE THAT WE HAVE TO MEET, EXCLUSIONS ARE INTERPRETED
NARROWLY AN THIS IDEA OF JUST PLACING THIS PRODUCT INTO THE STREAM OF COMMERCE AN IT
ENDING UP IN NASSAU COUNTY. JUSTICE ALBIN: WHEN YOU PLACE AN ITEM IN THE STREAM
OF COMMERCE, YOU'RE PUTTING IT AT POINT A AND THEN SOMEHOW THROUGH A BUNCH OF ACTIVITIES
IT ENDS UP AT POINT Z. HERE YOU WERE POINT A AND YOU DELIVERED IT TO POINT
B SO I DON'T UNDERSTAND THIS STREAM OF COMMERCE ARGUMENT YOU'RE MAKING. YOU DIRECTLY
DELIVERED YOUR OWN PRODUCT, OKAY, TO THE USER. HOW IS THAT PUTTING SOMETHING
IN THE STREAM OF COMMERCE. RYAN MILUN: BECAUSE, AGAIN, WE CONTRACTED WITH
HOME DEPOT OUT OF GEORGIA TO PURCHASE BLIND AND AS PART OF THAT THEY GET THE CUTTING MACHINE,
ALL RIGHT, HOME DEPOT DECIDES WHERE WE'RE PUTTING THESE ITEMS. HOME DEPOT PURCHASES THE
ITEMS, WE GET PAID, OUR TRANSACTION IS FINISHED. HOME DEPOT SAYS WE'RE GOING TO TAKE
YOUR PRODUCT AND AS PART OF THIS YOU DELIVER THEM TO NASSAU, YOU DELIVER THEM TO FLORIDA,
YOU DELIVER THEM TO WHEREVER SO IT'S FLOWING ALONG THAT STREAM THREE WHERE HOME DEPOT
DICTATES WHERE IT GOES. JUSTICE PATTERSON: THEY SAID DELIVER IT HERE,
DELIVER IT THERE. RYAN MILUN: RIGHT AN THE DELIVERY OF THE PRODUCT THERE
IS HOME DEPOT'S OPERATIONS, THEY MAKE THAT DECISION WHERE IT GOES. THEY USE THE PRODUCT
ITSELF. JUSTICE ALBIN: THEY ARE YOUR BLIND. DO THEY GO TO JUST SOME HOME
DEPOT STORES OR ALL HOME DEPOT STORES AS FAR AS YOU KNOW. RYAN MILUN: AT THE
TIME OF THE INJURY IT WAS AT 1600 OUT OF 1900 AND SOMETHING STORES. CHIEF JUSTICE
RABNER: YOUR ARGUMENT IN RESPONSE TO THE JUSTICE'S QUESTION JUST NOW MADE IT SOUND AS
IF YOUR DELIVERY OF THE PRODUCT IN NASSAU COUNTY WAS AN OPERATION OF HOME DEPOT DOES THAT
MAKE SENSE. RYAN MILUN: HOME DECIDE, DEPOT DIEDZ WHERE THESE THINGS GO.
CHIEF JUSTICE RABNER: WHOSE ACTIVITY IS IT, NOT WHOSE DECISION, WHOSE
ACTED TIFT, WHOSE OPERATION IS IT. RYAN MILUN: THE ACTUAL DELIVERY OF THE
PRODUCT, IF YOU WANT TO SAY, I UNDERSTAND WHERE YOU'RE GOING THAT THAT THAT ACTIVITY IS
RICHFIELD'S, BY DELIVERING THE PRODUCT INTO NASSAU COUNTY, I DON'T HAVE A PROBLEM WITH
CONCEDING THAT BECAUSE, AGAIN, JUST THE ACTIVITY OF DELIVERY WAS NOT THE CAUSE OF THE
INJURY, WAS NOT -- THERE IS NO NEXUS BETWEEN THAT DELIVERY AND THE INJURY AND THAT'S THE
KEY ANALYSIS. CHIEF JUSTICE RABNER: SO YOUR EMPHASIS ON THE WORD CAUSE
GIVES US PAUSE AS YOU'VE HEARD MULTIPLE WAYS BETWEEN THE QUESTIONING. RYAN
MILUN: THAT'S WHY I KEEP TRYING TO SAY NEXUS INSTEAD OF CAUSE. I UNDERSTAND CAUSE IS
ONLY ONE OF MANY BUT I GUESS NEXUS IS PROBABLY MORE INCLUSIVE TO ANY ONE OF THESE BUT
THE POINT IS IF YOU WANT TO SAY DELIVERY OF THE MACHINE INTO NASSAU COUNTY WAS AN OPERATION
OR ACTIVITY OF RICHFIELD, THAT'S FINE, BUT LORITO IS NOT CLAIMING THAT THE MERE EXISTENCE
OF THIS MACHINE IN NASSAU COUNTY IS WHAT WAS LINKED OR A NEXUS WITH HER INJURY.
WHAT SHE IS ALLEGING IS THERE IS A PROBLEM WITH THE MACHINE. JUSTICE PATTERSON:
SHE IS ALLEGING SHE GOT INJURED FROM A MACHINE IN NASSAU COUNTY. SO THE FACT THAT THE
MACHINE WAS IN NASSAU COUNTY AT THE HOME DEPOT STORE IS PART OF HER CLAIM. SHE'S NOT
SAYING IT WAS IMPROPERLY DELIVERED, BUT IT IS A FACT, HAD IT NOT BEEN IN THAT STORE, SHE
WOULD NOT HAVE HAD THIS PARTICULAR INJURY. RYAN MILUN: THAT'S TRUE, JUDGE,BUT
I DON'T THINK THE MERE FACT THAT IT EXISTS IN NASSAU COUNTY IS SUFFICIENT TO SATISFY THE
LANGUAGE OF THE EXCLUSION. CHIEF JUSTICE RABNER: BUT IF THE DELIVERY IS
AN ACTIVITY RESPOND TO COUNSEL'S EARLIER ARGUMENT THAT BUT FOR THE ACTIVITY, THERE WOULD BE
NO INJURY. RYAN MILUN: THE MACHINE EXISTS IN NASSAU COUNTY. IT NEVER GETS
USED. IT NEVER GETS USED BY LORITO. SOMETHING ELSE WOULD HAVE HAD TO HAVE HAPPENED.
SOMETHING ELSE WAS THE CAUSE OF THE INJURY. THE MERE FACT THAT IT EXISTED IN NASSAU COUNTY
DIDN'T RESULT IN ANY INJURY TO LORITO, WHAT RESULTED IN THE INJURY TO LORITO, ACCORDING
TO HER IS THE ALLEGED DEFECT IN THE MACHINE, THE ALLEGED MANUFACTURING ISSUES IN THE
MACHINE, THE ALLEGED FAILURE TO WARN. SO THAT MACHINE COULD SIT IN THAT MOEM
DEPOT FOR THE NEXT TEN YEARS, UNUSED WITHOUT A PROBLEM, BUT SOMETHING ELSE HAD TO HAPPEN
AND ACCORDING TO LORITO, THAT SOMETHING ELSE WAS A DESIGN DEFECT. ACCORDING
TO LORITO, THAT SOMETHING ELSE DID NOT HAPPEN IN NASSAU COUNTY AND THAT'S THE CRITICAL
POINT, THAT'S SOMETHING ELSE, THE DESIGN, THE MANUFACTURE, THE FAILURE TO WARN DID NOT
HAPPEN IN NASSAU COUNTY, AND IN ORDER FOR THE EXCLUSION TO BE TRIGGERED, IT MUST HAPPEN
IN NASSAU COUNTY. JUDGE FUENTES: THE LOGIC IS IT CAN ONLY BE SUED IN CHINA?
RYAN MILUN: I THINK IT MIGHT BE TIME TO WRAP UT R UP BUT THERE IS A
DIFFERENCE BETWEEN LIABILITY FOR PRODUCTS LIABILITY WHERE YOU DEAL WITH THE STREAM OF
COMMERCE AN RICHFIELD MAY VERY WELL BE LIABLE FOR THE JIRS TO LORITO, BUT WE'RE TALKING
ABOUT INSURANCE KOVRNG SO THE ONE IDEA IS RICHFIELD CAN SLURLT BE SUED BUT THE QUESTION
WE'RE HERE TO ANSWER TODAY IS WHAT THE COVERAGE FOR THAT LAWSUIT AN IT DOESN'T RELY ON
A PRODUCTS LIABILITY, A STREAM OF COMMERCE ANALYSIS WHAT IT DOES RELY ON IS ANALYSIS OF
THE POLICY LANGUAGE ITSELF IN THIS EXCLUSION THAT MUST BE INTERPRETED NARROWLY PER NEW JERSEY
LAW. THE COURT: THANK YOU, MR. RYAN MILUN: MILUN THANK YOU,
YOUR HONORS. CHIEF JUSTICE RABNER: MR. KIN, DO YOU WANT TO OFFER BRIEF RE
BET TALL, TAL. JUSTIN N. KINNEY: I AM CERTAIN I DID NOT MAKE THE ADMISSION
THAT WAS ATTRIBUTED TO ME, I WAS DISCUSSING BIRD V SUS SECTION AND HOW THE DUTY TEE TO
DEFEND TURNS ON THE ACTUAL FACTS AND I WILL REITERATE AN CONCEDE THAT MRS. LORITO'S
CLAIMS FROM NEGLIGENT DESIGN, BREECH OF DESIGN, PRODUCTS LIABILITY HAVE NOTHING WHATSOEVER
TO DO WITH WHETHER RICHFIELD HAD ACTIVITIES IN NASSAU COUNTY. THAT'S WHY SHE DOESN'T
MENTION THEM IN THE COMPLAINT, NOR NEED SHE MENTION THEM TO SUCCEED ON HER CLAIMS AGAINST
RICHFIELD. COUNSEL AT RICHFIELD NOW AND CERTAINLY IN THE PAST HAS CONCEDED
THEY HAVE ACTIVITIES SO THE DISPUTE ALL COMES DOWN TO WAS THERE A CONNECTION. AND THE
ONLY WAY RICHFIELD ESCAPES THE SELF EVIDENT CONCLUSION THAT THERE WAS A CONNECTION IS
BY FALLING BACK ON THE ALLEGATIONS OF THE COMPLAINT AND THEY DON'T MENTION THE FAILURE
TO TRAIN OR A FAILURE TO MAINTAIN AND THEREFORE, THERE IS NO CONNECTION. THERE IS SIMPLY
NO BASIS FOR THAT AND THIS WAS THE SAME ARGUMENT MADE TO THE MOTION COURT AND JUDGE HANS
BER RESAID IT BEST THAT THE LANGUAGE OF THE EXCLUSION IS FATAL TO PLAINTIFF'S NARROW AND
STRAINED INTERPRETATION. AND LASTLY, YOUR HONORS, I BELIEVE, CERTAINLY, AS
OF NOVEMBER 2017, RICHFIELD TOLD ADMIRAL IT HAD PROVIDED CUTTING MACHINES TO EVERY SINGLE
HOME DEPOT STORE. THAT WAS NINE MONTHS, TEN MONTHS PRIOR TO THE LORITO CLAIM.
SO IF THE CUTTING MACHINES WERE IN EVERY STORE, THEY WERE SELLING BLIND IN EVERY STORE
AND THE DELIVERY OF THE CUTTING MACHINE TO THIS STORE WAS SPECIFICALLY EVIDENCED BY AN
INVOICE SHOWING THAT IT WAS BEING SENT. AND SO BECAUSE THERE UNQUESTIONABLY
IS A CONNECTION BETWEEN THE ACTIVITIES RICHFIELD CONCEDES IT UNDERTOOK IN NASSAU COUNTY
THE EXCLUSION APPLIES PRECLUDING COVERAGE, THANK YOU VERY MUCH YOUR HONOR. THE
COURT: THANK YOU, THANK YOU