PLEASE HAVE APPEARANCES OF COUNSEL. (APPEARANCES TENDERED.)
CHIEF JUSTICE RABNER: GOOD MORNING, COUNSEL, AND WELCOME.
MR. CASS, PLEASE GO AHEAD. JONATHAN A. CASS:
YES. I AM PLEASED THAT WE'RE ALL HERE IN PERSON. I WAS WATCHING YESTERDAY AND
I SAW THAT THE SNOW LED TO A VIRTUAL APPEARANCE SO IT'S NOW TO ACTUALLY
BE IN FRONT OF JUSTICES IN PERSON FOR A CHANGE. THIS APPEAL
IS, IN MY MIND, VERY STRAIGHTFORWARD. IT HAS TO DO WITH WHETHER THE APPELLATE
DIVISION PROPERLY DETERMINED THAT TWO EXCLUSIONS IN A COMMERCIAL AUTOMOBILE POLICY
ISSUED BY THE APRIL PELLY, ARCH INSURANCE COMPANY, SPECIFICALLY THE HANDLING
OF PROPERTY AND THE COMPLETED OPERATIONS EXCLUSIONS APPLY AND SHOULD BE ENFORCED
AS TO DENY COVERAGE FOR A JUDGMENT OBTAINED BY SILVI AGAINST M J F IN AN
UNDERLYING MATTER. IN DOING SO, THE APPELLATE DIVISION REVERSED A
MOTION FOR SUMMARY JUDGMENT THAT HAD BEEN GRANTED BY THE TRIAL COURT IN FAVOR OF
SILVI AND AGAINST ARCH IN THE AMOUNT OF APPROXIMATELY $930,000 WHICH WAS THE
JUDGMENT THAT HAD BEEN ENTERED IN THE UNDERLYING MATTER. SILVI SUBMITS
THAT THE APPELLANT DIVISION COMMITTED REVERSIBLE ERROR IN DETERMINING THAT THE
EXCLUSIONS APPLY, THAT THEY SHOULD APPLY AND SHOULD BE ENFORCED BECAUSE
IN TO GO SO IT COMMITTED A MAJOR KORJ GAP FOR COMPANIES LIKE EMERGENCY FMENT WHICH
REASONABLY EXPECT KORJ BASED ON THE FACTS AND CIRCUMSTANCE SZ THAT OCCURRED
IN THE OTHER CASE. STATUTORILY MANDATED COVERAGE AND MAY NOT BE
MODIFIED BY EXCLUSIONS, WHICH IS EXACTLY WHAT THE APPELLATE DIVISION DID BY
ENFORCING THESE TWO EXCLUSIONS. WOULD THE COURT LIKE ME TO
PROVIDE A VERY BRIEF FACTUAL BACKGROUND AND I WILL MAKE IT BRIEF.
THE COURT: IT'S NOT NECESSARY. YOU CAN IF YOU WANT TO USE YOUR TIME IN THAT WAY,
BUT WE'RE FAMILIAR WITH THE FACTS. JONATHAN A. CASS: OKAY.
I AM GOING TO SKIP IT THEN. BEFORE EXPLAINING
TO THE COURT WHY I THINK THE APPELLATE WITH H DIVISION COMMITTED REVERSIBLE ERROR
WHEN IT ENFORCED THOSE TWO EXCLUSIONS, I WANT TO DISCUSS THE STATUTORY --
EXCUSE ME, THE INSURANCE SCHEME THAT WOULD GOVERN A COMPANY LIKE MJF BECAUSE I
THINK IT'S IMPORTANT FOR THE COURT TO UNDERSTAND HOW THE COVERAGE SZ APPLY
AND WHY THE COVERAGE IS ONLY REALLY AVAILABLE FOR WHAT HAPPENED UNDER THE AUTO
POLICY. THERE ARE FOUR MAIN POLICIES THAT MJF WOULD GET. IT
WOULD COMMERCIAL A COMMERCIAL GENERAL LIABILITY POLICY AND IN THIS CASE IT PURCHASED
FROM COVINGTON SPECIALTY INSURANCE COMPANY, WHICH WAS ORIGINALLY A PARTY
TO THIS ACTION, BUT HAS BEEN DISMISSED. IT WOULD PURCHASE A COMMERCIAL AUTO POLICY
BECAUSE IT'S A TRUCKING COMPANY AND HAS VEHICLES LIKE MJF PURCHASED FROM
ASH. IT WOULD ALSO PURCHASE A CARGO POLICY AND A WORKERS'
COMPENSATION AN EMPLOYER'S LIABILITY POLICY SO FOUR MAIN POLICY OF COURSE THEY MAY
HAVE AN E P I POLICY OR P AN L POLICY BUT FOR PURPOSES OF OUR DISCUSSION, LET'S
STICK WITH THESE FOUR. THE C G L POLICY PROISZ COVERAGE FOR BODILY
INJURY AND PROPERTY DAMAGE CLAIMS ARISING FROM THE COMPANY'S OPERATIONS,
SUBJECT OF COURSE TO CERTAIN EXCLUSIONS, FOR EXAMPLE IF A MEMBER OF THE PUBLIC
SLIPs AN FALSE AT THE COMPANY'S FACILITY AN SUSTAINS INJURIES, THE C G L
POLICY WOULD PROVIDE COVERAGE FOR THE RESULT CLAIM. HOWEVER,
DUE TO AN AUTOMOBILE EXCLUSION CONTAINED IN THE C G L POLICY IT WOULD NOT PROVIDE
PROPERTY DAMAGE FOR AN ACCIDENT INVOLVING AN AUTO. COVERAGE
FOR BODILY INJURY AN PROPERTY DAMAGE CLAIMS AND ACCIDENTS INVOLVING COMPANY
VEHICLES, WHICH IS WHAT WE HAVE HERE IS PROVIDED BY THE COMPANY'S AUTOMOBILE
LIABILITY POLICY AN SINCE THE TRUCK RG COMPANY WILL BE TRANCE SUPPORTING THE
PROPERTY OF OTHERS, IT OBTAINS A CARGO POLICY WHICH PROVIDES COVERAGE IN
THE EVENT THE CARGO IT'S HAULING IS DAMAGED AND THE OWNER OF THAT CARGO ASSERTS
A CLAIM. FOR EXAMPLE, IF THE COMPANY IS HAULING A TRUCKLOAD
OF TELL VISHGSZ, TELL VISHGSZ ARE DESTROYED WHEN THE TRUCK RUNS OFF THE ROAD, THE
CARGO POLICY IS GOING TO BE THE POLICY THAT RESPONDS SO IT'S INTENDED TO
COVER PROPERTY BUT IT REALLY IS A LIABILITY POLICY. FINALLY, WE HAVE
THE WORKERS' COMPENSATION AN EMPLOYERS LIENLT POLICY WHICH PROVIDES STATUTORY
MANDATED COVERAGE FOR EMPLOYEE-RELATED INJURIES AN SOME OTHER COVERAGE
UNDERSTAND THE EMPLOYER'S LIENLT POLICY. NOW, THE IMPORTANT THING HERE
IS THAT EACH OF THESE POLICIES IS WRITTEN TO PROVIDE COVERAGE FOR A SPECIFIC
TYPE OF RISK AN TO EXCLUDE OTHER TYPES OF RISKS. FOR EXAMPLE,
THE COMMERCIAL GENERAL LIABILITY IS BODILY INJURY AND PROPERTY DAMAGE ARISING
FROM YOUR OPERATIONS, BUT, HEY, WE'RE NOT A WORKERS' COMPENSATION POLICY,
WE DON'T PROVIDE COVERAGE FOR THAT. WE'RE MOT AN AUTO POLICY WE DON'T PROVIDE
KORJ FOR THAT. WE'RE NOT A POLLUTION POLICY. WE DON'T PROVIDE COVERAGE FOR
THAT. THE SAME THING WITH AUTOS, WE PROVIDE KORJ FOR THE USE
OR MAINTENANCE OF AN AUTO BUT WE'RE NOT YOUR GENERAL LIABILITY POLICY. L FOR THAT
YOU FWOE TO YOUR GENERAL LIABILITY POLICY, SIMILARLY WORKERS' COMP.
CHIEF JUSTICE RABNER: COUNSEL, CAN WE TRY TO COME TO THE PART OF THE ISSUE THAT
WE HAD IN THIS CASE AN I AM GOING TO TAKE YOU TO THE FACTS. YOU
HAVE A TRUCKING COMPANY THAT WAS RESPONSIBLE FOR DELIVERING AGGREGATE. IT WAS
CONTAMINATED DURING THE DELIVERLY. LATER, THE CONSTRUCTION AT THE
FLOOR OF THE WAREHOUSE TURNED INTO A DISASTER THAT YOU SEEK RECOVERY FOR.
JONATHAN A. CASS: CORRECT. THE COURT: WHY
WHY IS THIS CASE -- YOU'VE ARGUED THIS CASE IGNORED APPELLANT'S RULE?
WHEN DID YOU FIRST RAISE THAT. JONATHAN A. CASS: IN OUR PAEGS
FOR CERTIFICATION. YOUR HONOR, IN GOING BACK AN LOOKING AT
APRIL PEL MAN'S RULE, I ALSO THINK THERE ARE OTHER, BETTER ARGUMENTS THAT
I WOULD LIKE TO DISCUSS WITH YOUR HONOR SFLFRNLTS WHY DON'T WE TALK ABOUT APRIL PEL
MAN'S RULE? WHY SHOULD YOU REVEIL UNDER THE CONCEPT OF
APRIL PEL MAN'S RULE. JONATHAN A. CASS: APRIL PEL MAN EASE RULE
HAS TO DO WITH THE CONCURRENCE OF COST. THE COURT IN -- WHICH WE CITED
TO, THE (CASE CITED), POTENTIALLY SAID APRIL PEL MAN'S RULE PURSUANT TO WHICH THE
LOSS IS COVERED IS A KORD CAUSE STARTS OR ENDS THE SEQUENCE OF EVENTS LEADING
TO THE LOSS. I THINK IT'S RELEVANT TO THIS SITUATION BECAUSE
WHAT WE HAVE HERE IS WE HAVE A SITUATION IN WHICH THERE IS NO DISPUTE THAT THE
NEGLIGENCE THAT TRIGGERED COVERAGE UNDER THE POLICY TOOK PLACE DURING THE
USE OF THE VEHICLE. THIS WAS A SITUATION IN WHICH THE TRUCKING COMPANY, MJF FAILED
TO CLEAN OUT THEIR TRUCK, WHICH WAS MAINTENANCE, WHICH WAS COVERED UNDER
THE POLICY, DUMPED AGGREGATE INTO IT AN CONTAMINATED THAT AGGREGATE.
ONCE THEY CONTAMINATED THAT AGGREGATE THAT AGGREGATE WHICH WAS IMMEDIATELY
INCLUDED AS A MATERIAL IN A CON DREET MIX WHICH WAS USED IN THE WAREHOUSE IN A
POUR, THAT CONCRETE IMMEDIATELY CAME OUT OF SPEC AND DEFECTIVE.
THE CONCEPT OF WHY I THINK APRIL PEL MAN'S RULE APPLIES HERE IS THE IDEA THAT
ONCE YOU HAVE A LOSS THAT IS COVERED UNDER THE POLICY AND YOU HAVE DAMAGES THAT
ARE INEVITABLE BECAUSE V THAT, THAT IT NATURALLY FLOWS THAT THE DAMAGES THAT RESULT
SUBSEQUENTLY ARE COVERED UNDER THE POLICY. JUSTICE WAINER APTER:
BUT DOESN'T APRIL PEL MAN'S RULE ONLY APPLY TO AN INSURER'S INITIAL DUTY TO
DEFEND? HAS THERE BEEN ANY CASE THAT HAS EVER APPLIED APRIL
PEL MAN'S RULE TO VOID AN EXCLUSION? JONATHAN A. CASS: I AM NOT
AWARE OF IT. WHAT WE WERE REALLY KROOITH IT FOR IS THE CONCEPT OF LOOKING
AT APRIL PEL MAN'S RULE AND HOW IT APPLIES TO HOW WE NEED TO LOOK AT THE DAMAGES
THAT WERE SUSTAINED IN THIS CASE. JUSTICE WAINER APTER:
IN TERMS OF THE DAMAGES, WHAT IS THE PROPERTY THAT WAS DAMAGED IN THIS
CASE? IS IT THE WAREHOUSE FLOOR OR IS IT THE AGGREGATE THAT
GETS CONTAMINATED BY THE SALT? JONATHAN A. CASS: IT IS THE AGGREGATE
THAT GETS CONTAMINATED BY THE SALT THAT THEN IS INCORPORATED INTO THE CONCRETE
ITSELF. JUSTICE WAINER APTER: IT SEEMS LIKE IF YOU SAY IT IS
THE AGGREGATE THAT IS CON TAM MATD BY THE SALT, THEN YOU RUN INTO THE CARE, CUSTODY
AN CONTROL EXCLUSION BECAUSE THE AGGREGATE WAS CONTROLLED BY MJF WHEN IT
WAS CONTAMINATED BY THE SALT. JONATHAN A. CASS: WELL, THAT ISSUE,
YOUR HONOR, RESPECTFULLY, IS NOT BEFORE THE COURT BECAUSE THE ONLY THING
THAT WAS APPEALED WAS WHETHER THE HANDLING OF PROPERTY E SCLUSHGS AN THE COST,
CARE CUSTODY AN CONTROL EXCLUSION APPLIES. I DO UNDERSTAND
YOUR POINT ABOUT THAT, BUT WHAT I WANT TO FOCUS ON IF I COULD IS THE LATTER TWO
EXCLUSIONS. JUSTICE WAINER APTER: IT SEEMS LIKE YOU'RE
TRYING TO HAVE IT BOTH WAYS. IT SEEMS LIKE FOR THE LATTER EXCLUSIONS YOU'RE TRYING
TO ARGUE THAT THE PROPERTY THAT WAS DAMAGED WAS THE AGGREGATE THAT WAS
MIXED WITH THE SALT IN THE VEHICLE SO THAT IT WAS TASH DASH THE COMPLETED OPERATIONS
EXCLUSION WOULDN'T APPLY BECAUSE IT WAS WHILE IT WAS IN THE VEHICLE AN THE
HANDLING OF PROPERTY EXCLUSION WOULDN'T APPLY BECAUSE IT WAS WHILE MJF WAS HANDLING
THE PROPERTY BUT THEN YOU RUN DREBLTHLY INTO THE CUSTODY, CARE AND CONTROL EXCLUSION
AN I UNDERSTAND YOU DON'T WANT THAT TO APPLY BECAUSE THE APPELLATE DIVISION
HELD THAT IT DIDN'T APPLY BUT I DON'T SEE HOW ONE CAN UNDERSTAND THE APPELLATE
DIVISION'S DECISION WITHOUT IT SEEMING LIKE THERE IS TWO DIFFERENT PROPERTIES
THAT WERE DAMAGED DEPENDING ON WHICH EXCLUSION YOU'RE APPLYING.
IT SEEMS LIKE THE APPELLATE DIVISION WAS HOLDING THAT IMPORTANT CERTAIN EXCLUSIONS
IT WAS THE WAREHOUSE THAT WAS DAMAGED AND FOR OTHER EXCLUSIONS IT WAS THE
AGGREGATE THAT WAS DAMAGED AND I THINK YOU RUN INTO THAT IN ORDER TO FIT YOURSELF
IN NONE OF THE THREE EXCLUSIONS SO THAT'S WHY I DON'T THINK YOU CAN IGNORE THE
FIRST EXCLUSION WHEN YOU ARE TALKING ABOUT WHAT IS THE PROPERTY THAT WAS DAMAGED.
IF IT IS THE AGGREGATE HOW DO YOU THEN NOT RUN STRAIGHT INTO
THE CARE, CUSTODY AND CONTROL EXCLUSION? JONATHAN A. CASS:
IT'S ALWAYS BEEN OUR POSITION THAT THE DAMAGES THAT WE SUSTAINED ARE NOT THE
DAMAGE TO THE AGO TWREG GAT ITSELF. JUSTICE PATTERSON: IT WAS WITH THE
DAMAGE TO THE FLOOR. AND IF SOMEONE HAD REALIZED THAT THIS AGGREGATE WAS
CONTAMINATED BEFORE IT WAS EVER USED FOR INSTALLATION, THERE WOULD HAVE BEEN NO
DAMAGE, CORRECT? JONATHAN A. CASS: IF IT HAD NOT BEEN
INCORPORATED IN THE ON KREET BECAUSE SOMEBODY REALIZED THERE WAS SALT, ABSOLUTELY.
JUSTICE PATTERSON: THERE WOULD HAVE BEEN NO DAMAGE?
JONATHAN A. CASS: ABSOLUTELY. I WANT TO GIVE THE COURT A
SCENARIO HERE THAT APPLIES TO THE COMPLETED OPERATIONS AND THE HANDLING
OF PROPERTY BECAUSE I THINK IT IS IMPORTANT TO UNDERSTAND THE CONCEPT OF THESE
DAMAGES. LET'S SAY WE HAVE A TRUCKING COMPANY THAT GETS INVOLVED
IN A MOTOR VEHICLE ACCIDENT, REAR ENDS SOMEBODY. THE DRIVER
GETS OUT, GOES TO THE INDIVIDUAL THAT HE HIT AN SAYS DO WE HAVE ANY PROBLEMS HERE,
ARE YOU HURT AND THE PERSON SAYS NO, I FEEL FINE. I'M OKAY. NO PROBLEMS.
THEY EXCHANGE INFORMATION. HE'S ON HIS WAY AN HE COMPLETES HIS OPERATIONS OR HIS
LOAD FOR THAT DAY. HE DELIVERS IT, GOES BACK. SO HE HAS COMPLETED UNDER
COMPLETED OPERATIONS HIS WORK FOR THE DAY. THREE WEEKS AFTER, THAT
INDIVIDUAL IS HURT. THEY WAKE UP AND THEY REALIZE THEY HAVE BACK PAIN. THEY
GO TO THE DOCTOR AND GET DIAGNOSED WITH A DISK AN THE DOCTOR CONCLUDES THAT
THE SDEPT WAS CAUSALLY RELATED. THE MECHANISM, THE NEGLIGENCE THAT
OCCURRED TOOK PLACE DURING THE OPERATION; THAT WAS THE REAR-ENDING OF THE
VEHICLE. JUST LIKE HERE, THE NEGLIGENCE THAT CAUSED LIABILITY
FOR MJF ROWS OUT OF THE VEHICLE, THE FAILURE TO PROPERLY MAINTAIN.
JUSTICE PATTERSON: BUT NOT SOLELY. THE DISTINCTION BETWEEN YOUR
HYPOTHETICAL AND THIS CASE IS THAT IN YOUR HYPOTHETICAL, THE ONLY CAUSATIVE
FACTOR IN THE ULTIMATE INJURY DIAGNOSED WEEKS LATER IS THE ACCIDENT; THAT WAS YOUR
HYPOTHETICAL. IN THIS CASE, AT LEAST TWO THINGS HAPPEN: ONE,
THE AGGREGATE WAS CON TAM MATD; AND, TWO, LATER AFTER THE DELIVERY, PEOPLE WERE
PRESUMABLY ON THE SCENE AND IN SKAULED DEFECTIVE AGGREGATE ONTO THAT FLOOR WHICH
ULTIMATELY WAS SIGNIFICANTLY DAMAGED AND HAD TO BE REPLACED.
SO YOU HAVE A SECOND STAGE OF CAUSATIVE FACTORS HERE THAT IS NOT IN YOUR
HYPOTHETICAL, RESPECTFULLY. JONATHAN A. CASS: I RESPECTFULLY
DISAGREE BECAUSE ONCE THE AGGREGATE IS CONTAMINATED, ANY CONCRETE THAT IS
USED -- IT BECOMES A DEFECTIVE PRODUCT. JUSTICE PATTERSON: UNDERSTOOD.
BUT IF SOMEONE HAD SAID I WANT TO TAKE A CAREFUL LOOK AT THIS
AGGREGATE AN SAID THERE IS SOMETHING OFF HERE. L THEY TESTED IT OR WHATEVER THE
MECHANISM MIGHT BE AN THAT IS PUT BACK ON THE TRUCK AND SENT BACK TO ITS
POINT OF ORIGIN, THERE WOULD HAVE BEEN NO, NO DAMAGE. AND THAT'S UNLIKE YOUR AUTO
SCENARIO BECAUSE THE DAMAGE IS DONE AT THE MOMENT OF THE ACCIDENT.
JONATHAN A. CASS: LET ME PROVIDE ANOTHER SCENARIO THAT I THINK IS HELPFUL
HERE. A TRUCKING COMPANY IS DELIVERING A LOAD OF BATTERIES
AND THE BATTERIES -- WHILE THEY'RE FORKLIFTING THE BATTERIES ONTO -- THE DRIVER
IS, WHILE IT'S IN THE TRUCK MISTAKENLY AND UNKNOWINGLY PUNCTURES THE BATTERY WITH
THE FORKLIFT. THE BATTERIES GET DELIVERED TO THE DESTINATION AND THEY GET PUT
IN A WAREHOUSE. TWO WEEKS LATER THERE IS A FIRE, BURNS THE
WAREHOUSE DOWN AND THEY DETERMINE THAT THE CAUSE OF THE FIRE IS THE BATTERIES THAT WERE
DAMAGED IN SHIP LETTER SHIPMENT, WHICH OCCURRED DURING THE SHIPMENT OF THE
GOODS. I THINK THAT'S EXTREMELY ANALOGOUS TO OUR SITUATION
BECAUSE, AS YOU SAID, WHILE YOU COULD STILL HAVE INSPECTED THOSE BATTERIES AND MADE
SURE THAT THERE WAS NOTHING WRONG WITH THEM BEFORE YOU PUT THEM IN, I DON'T
THINK THAT IT'S NECESSARY OR IT ACTUALLY CREATES AN ISSUE NOT TO DO THAT BECAUSE
YOU REASONABLY EXPECT WHEN YOU HIRED SOMEBODY TO DELIVER YOUR AGO FREG GAT OR
DELIVER YOUR BATTERIES THAT THEY ARE NOT GOING TO DAMAGE IT.
JUSTICE PATTERSON: THAT'S AN ISSUE THAT AT A TRIAL -- I'M REALLY NOT SURE WHERE
YOU'RE GOING WITH THIS BECAUSE AT A TRIAL, THAT WOULD BE PRESUMABLY PART OF THE
MIX THAT A FACT FINDER WOULD SORT OUT. THERE MAY BE MULTIPLE CAUSATIVE FACTORS.
JUSTICE FASCIALE: AND IN THAT TRIAL, THE UNDERLYING CASE,
YOU SUED THE SUB, THE J C -- DID YOU SUE THE SUBAN THE J C?
JONATHAN A. CASS: SO WE ONLY BROUGHT AN ACTION AGAINST MJF BECAUSE MJF WAS THE
ENTITY THAT HAD CONTAMINATED THE AGGREGATE. JUSTICE
FASCIALE: THAT BRINGS ME TO INTERPRETING HANDLING THE PROPERTY AN THE CHIEF'S
ORIGINAL QUESTION ABOUT APPELLATE PEL MAN. WHY ISN'T THE PLAIN
LANGUAGE OF THE EXCLUSION DETERMINATIVE? LET ME JUST PHRASE
IT THIS WAY, THE EXCLUSION SAYS INSURANCE DOES NOT APPLY TO PROPERTY DAMAGE
RESULTING FROM THE HANDLING OF PROPERTY BEFORE IT IS MOVED AND AFTER IT IS MOVED.
HERE, THE DAMAGE TO THE PROPERTY WAS TO THE AGGREGATE DURING
THE MOVE. WHY THEN DOES THE EXCLUSION APPLY JUST BASED ON THE
PLAIN LANGUAGE OF THE EXCLUSION? JONATHAN A. CASS: BECAUSE WHAT
THIS EXCLUSION IS INTENDED TO DO IS TO -- IT IS THE HANDLING OF PROPERTY
THAT OCCURRED BEFORE BECAUSE THEY DON'T WANT TO PROVIDE COVERAGE FOR ACTIONS THAT
TAKE PLACE THAT ARE UNRELATED TO THE VEHICLE. JUSTICE
FASCIALE: THAT DIDN'T HAPPEN HERE. JONATHAN A. CASS: THAT DIDN'T
HAPPEN HERE. THEY DON'T WANT TO DO IT AFTERWARDS. ONE
OF THE THING YOUR HONORS SAW IS THAT THE APPELLATE DIVISION CITED TO THE ACE CASE
OF BARRY CONCRETE AND SAID WHEN IT DID IT'S CARE, CUSTODY AN CONTROL ANALYSIS
IT CITED AS AN EXCEPTION AN THEN INCLUDED THE CASE IN A FOOTNOTE IN WHICH IT SETTLED
BY THE WAY, ALTHOUGH IT ENDED UP REVERSING ITSELF IN A MOTION FOR
RECONSIDERATION. IT DIDN'T REVERSE ITSELF ON THE TASH DASH IT'S DECISION ON THE
HANDLING OF PROPERTY OR ON THE COMPLETED OPERATIONS. AND I
THINK THAT CASE IS VERY INSTRUCTIVE WAUS THEY DID ADDRESS THIS.
LET ME JUST READ FROM IT. AND THE BAR RECASE WAS FACTUALLY ALMOST
IDENTICAL TO THIS, A CONCRETE COMPANY GETS A LOAD CLOP BAR CASE CLOP. GETS
A LOAD OF AGGREGATE AN GETS CONTAMINATED WITH SUGAR, NOT SALT. IT GETS MIXED INTO
THE CONCRETE AN GETS POURED AND THE FOUNDATION AN SLAB DON'T HARDEN
BECAUSE IT HAS THIS CONTAMINANT IN IT. THEY THEN HAVE TO GO AND RIP
OUT THE SLAB AND REPOUR IT TO THE TUNE OF $300,000, SO FACTUALLY COMPLETELY
IDENTICAL. THE CARRIER IN THAT CASE RAISED A NUMBER OF
EXCLUSIONS, CONCLUDING THE CARE, CUSTODY, CONTROL, THE HANDLING OF PROPERTY AND
THE COMPLETED OPERATIONS. THIS WAS WHAT THE COURT SAID WITH REGARD TO
HANDLE OF PROPERTY. -- JUSTICE WAINER APTER: ARE YOU TALKING
ABOUT THE INITIAL DECISION. JONATHAN A. CASS: THE INITIAL
DECISION NOT THE MOTION FOR RECONSIDERATION. AS THE
COURT DETERMINED IN ITS MOTION FOR REKRRGS -- REMEMBER, HERE ALL YOU NEED TO FIND
IS THAT ONE EXCLUSION APPLIES AN THEN THE OTHER EXCLUSIONS IT DOESN'T MATTER
WHAT YOUR DETERMINATION IS. WHAT THE COURT DECIDED IN ITS MOTION FOR
RECONSIDERATION IS THAT THERE IS A LAW IN LOUISIANA THAT ALOUGS A CARRIER
TO BLANK CONSEQUENTIAL DAMAGES THE COURT APPLIED IT AN SAID THEY ARE GOING TO REVERSE
THEIR DECISION. HOWEVER, THE RATIONALE THAT THE COURT USED
IN THAT DECISION FOR FINDING THAT BOTH OF THE EXCLUSIONS THAT WE'RE FACED
DIDN'T APPLY OR ARE IMPORTANT. IT SAID THE PLAIN LANGUAGE OF THE POLICY
EXCLUDES COVERAGE FOR HANDLING THE PROPERTY BEFORE IT IS LOADED OR AFTER
IT IS UNLOADED. EXCLUSION FOR THE HANDLING OF PROPERTY. WE DO
NOT HAVE THE -- THE MECHANISM OF NEGLIGENCE HERE DOESN'T VOLUNTARY THE HANDLING
OF PROPERTY OR THE HANDLING OF PROPERTY AFTERWARDS. JUSTICE
FASCIALE: THAT'S MY POINT. JONATHAN A. CASS: RIGHT SO THAT'S WHY
THE EXCLUSION DOESN'T APPLY. JUSTICE FASCIALE: EXACTLY MY
QUESTION SO WE DON'T HAVE TO GET INTO APRIL PEL MAN? JONATHAN
A. CASS: I THINK THAT -- THAT WAS PARTED OF MY POINT WHEN WE STARTED OUT. I THINK
THAT THE BAR REANALYSIS IS A BETTER SNALS THAN THE APPELLATE PEL MAN.
JUSTICE WAINER APTER: THE COURT ORIGINALLY HELD THAT THE
HANDLING OF PROPERTY AN THE COMPLETED OPERATIONS DIDN'T APPLY AND THAT NEITHER DID
THE CARE, CUSTODY AND CONTROL. BUT THEN THEY REVERSED THEMSELVES ON THE
CARE, CUSTODY AN CONTROL BECAUSE THEY FIND THAT THE EXCLUSION DOES APPLY IF THE
DAMAGE -- AND THE DAMAGE WAS CLEARLY EXCLUDED UNDER THE PROVISION BECAUSE THE
DAMAGE TO THE AGGREGATE HAPPENED, QUOTE, WHILE BEING TRANSPORTED BY THE
INSURED; THAT'S WHAT YOU RUB INTO HERE. IF YOU ARE SAYING THAT
THE PROPERTY DAMAGED IS THE AGGREGATE AND THAT IT WAS DAMAGED BY SALT WHEN IT
WAS IN MJF'S TRUCK, THEN YOU RUN DIRECTLY INTO THE CARE, CUSTODY AND CONTROL
EXCLUSION BECAUSE IT WAS CLEARLY WITHIN THE CARE, CUSTODY AND CONTROL OF MJF WHEN
IT WAS IN THEIR TRUCK AND DAMAGED BY THE SALT. THE REASON THAT
IT IS DIFFERENT FROM YOUR FIRST HYPOTHETICAL THAT YOU GAVE, WHICH WAS SOMEONE
IS DRIVING A TRUCK, IF I REMEMBER REMEMBERING THIS CORRECTLY, SOMEONE IS
DRIVING A TRUCK, CRASHES INTO ANOTHER CAR, THE PERSON DOESN'T REALIZE THAT THEIR
BACK WAS INJURED UNTIL THREE WEEKS LATER SO THERE YOU HAVE NO PROBLEM WITH
THE HANDLING OF PROPERTY OR THE COMPLETED OPERATIONS BECAUSE THE PERSON WAS INJURED
AT THE TIME THAT THE TRUCK CRASHED INTO THEM. YOU ALSO DON'T
HAVE ANY PROBLEM WITH THE CARE CUSTODY AND CONTROL EXCLUSION BECAUSE THE PERSON'S
BACK WAS NOT IN THE CARE, CUSTODY OR CONTROL OF THE TRUCK AT THE TIME.
INSTEAD, THE TRUCK DRIVER WAS DRIVING HIS TRUCK. HE CRASHED INTO ANOTHER VEHICLE
AND HE CAUSED DAMAGE. HERE, IN YOUR CASE, YOU'RE SAYING THAT
THE TRUCK ITS SECHL DAMAGED PROPERTY IN ITS OWN TRUCK BY MIXING THE AGGREGATE
WITH THE ASSAULT BECAUSE THEY LEFT THE SALT IN THE TRUCK AN THEN THEY MIXED THE
AGGREGATE IN WHILE IT'S IN THEIR OWN TRUCK IT GETS INJURED. THAT RUNS STRAIGHT
INTO THE CARE, CUSTODY AN CONTROL EXCLUSION BECAUSE THE AGGREGATE WAS IN THE
CARE, CUSTODY AN CONTROL OF MJF AT THE TIME YOU ALLEGE IT WAS DAMAGED?
JONATHAN A. CASS: ACTUALLY, THE REASON THE CARE, CUSTODY AN CONTROL
EXCLUSION IS CONTAINED IN THE POLICY IS BECAUSE THEY DO NOT WANT A LIABILITY POLICY
TO TURN TASH DASH A LIENLT POLICY TO TURN INTO A CARGO POLICY; OKAY?
AND THIS GETS BACK TO MY POINT ABOUT WHY WE HAVE DIFFERENT COVERAGES
THAT APPLY TO DIFFERENT PARTS OF THE OPERATION OF THE COMPANY:
AND WHY WE HAVE ARGUED AND I THINK PROPERLY THAT OUR DAMAGES ARE NOT -- WE'RE NOT
SEEKING DAMAGES BECAUSE THE AGGREGATE GOT CONTAMINATED WITH SALT. WE'RE NOT
SAYING GIVE US -- THAT ROAD OF AGGREGATE COST $300 WE WANT A CLEAN $300 WORTH OF
AGGREGATE. WE'RE SAYING THE CONTAMINATION OF THAT AGO FWREG
GAIT CREATED CONSEQUENTIAL DAMAGES. JUSTICE WAINER APTER: AND THEN
YOU RUN INTO THE FACT IF YOU'RE SAYING IT WAS THE WAREHOUSE FLOOR WAS DAMAGED
THAT HAPPENED LONG AFTER THE AGO DPREG GAT WAS DAMAGED. JONATHAN
A. CASS: THE POINT OF THE CARE, CUSTODY AN CONTROL IS NOT TO CONVERT THE POLICY
INTO A PROPERTY POLICY THAT PROVIDES COVERAGE FOR THE CARGO THAT IS BEING
HAULED. JUSTICE FASCIALE: LET ME ASK YOU THIS HYPOTHETICAL.
IN YOUR UNDERLYING CASE, LET'S MAKE BELIEVE THAT YOU SOUGHT
DAMAGES ONLY FOR THE AGO BREG GAT NOT FOR THE KOSZ OF REMOVING OR REPLACING THE
FLOOR. UNDER THE CARE, CUSTODY AN CONTROL EXCLUSION, THERE
WOULD BE NO COVERAGE BECAUSE YOU HAD CARE, CUSTODY OR CONTROL OF THE AGGREGATE
DURING THE TIME IT WAS TRANSPORTED FROM POINT A TO POINT B WITH THE SALT,
RIGHT? JONATHAN A. CASS: AGREED. JUSTICE
FASCIALE: IN THE UNDERLYING CASE YOUR DAMAGES WEREN'T ALLOCATED. IT WAS JUST FOR
THE REMOVAL OF THE FLOOR. JONATHAN A. CASS: ROOUL OR REPLACEMENT.
JUSTICE FASCIALE: THE TRIAL JUDGE AND THE APRIL D-BOTH SAID
CARE, CUSTODY AN CONTROL. WHEN YOU SOUGHT THAT TYPE OF DAMAGE INAPPLICABLE. CAST
KASZ RIGHT. I. JONATHAN A. CASS: I WANT
TO GET TO WHAT THE BAR RECOURT SAID. JUSTICE PATTERSON:
CAN I STEP BACK A SECOND, I AM NOT ASKING WHETHER YUSH EE ABANDONING YOUR APRIL
PEL MAN'S THEORY, BUT YOU SEEM TO BE DEPARTING FROM IT OR GOING TO A DIFFERENT
THEORY? JONATHAN A. CASS: I BELIEVE THAT THE APPELLATE PEL
MAN'S THEORY IN TERMS OF THAT A CAUSE THAT HAPPENED OCCURRING THE -- DURING THE
-- A COVERED CAUSE OF LOSS IS COVERED NO MATTER -- WELL, I THINK YOUR HONOR --
JUSTICE PATTERSON: I KNOW YOUR THEORY. IT WAS RAISED FOR
THE FIRST TIME BEFORE US IN THE PETITION. JONATHAN A. CASS: IT IS
NOT SOMETHING THAT I AM PRESSING BEFORE THIS COURT AT THIS TIME.
JUSTICE PATTERSON: THAT HELPS. LETTER. JONATHAN A. CASS: I WANT
TO TALK ABOUT THE BAR KOURT AND IT'S DECISION, IT SAYS, THIS EXCLUSION IS T
YPICALLY APPLIED IN CONSTRUCTION CASES TO PRECLUDE A COVERAGE FOR CLAIMS AGAINST
A CONTRACTOR OR SUBCONTRACTOR, NEITHER PARTY HAS CITED CASES INCLUDING AN
EXCLUSION IN AN AUTO POLICY, HOWEVER EVEN, WITHOUT CASE LAW GENERAL ISSUES REMAIN
WITH RESPECT TO WHEN PROPERTY DAMAGE OCCURRED AND WHEN WILL SON TRUCKING HAD
COMPLETED ITS JOB, BASED ON THE ALLOCATION AND COMPLETE AN WESTERN WORLD'S OWN
UNDERSTANDING OF THE ALLEGATIONS, THE ALLEGED COMMINGLING OF THE SUGAR AND THE
AGGREGATE OCCURRED WHILE WILL SON TRUCKING WAS TRANSPORTING IT'S AGGREGATE.
THIS IS BEFORE THEIR CONTRACTUAL OPERATIONS WERE CONCLUDED THEREFORE THE COMPLETED
OPERATIONS EXCLUSION IS EQUALLY IN APPLICABLE. THAT IS WHAT
THE APPELLATE DIVISION SHOULD HAVE DECIDED AND IT SHOULD HAVE -- IT WAS INTERESTING.
MANY IT WAS -- IT DID A NICE JOB IN TERMS OF POINTING OUT THE APPLICABILITY
OF NEW JERSEY'S COMPLETE OPERATIONS DOCTRINE, WHICH WAS THE CASE THAT WAS
DISCUSSED AND I'M GOING TO BUT CHESH THIS NAME OF THINK EASE EASE PENN V SURN TER
CONSTRUCTION. I AM GOING TO CALL IT THE TURNER CONSTRUCTION COURT.
CITING ANOTHER CASE IN THAT CASE THEY CITED LOADING AN UNLOADING INSURANCE EVEN
COVERS THE ENTIRE PROCESS INVOLVED IN THE MOVEMENT OF GOODS FROM THE MOMENT
THEY ARE GIVEN INTO THE NAMED INSUREDS POSSESSION UNTIL THEY ARE TURNED OVER AT
A PLACE OF DESTINATION TO THE PARTY WITH WHOM THE DELIVERY IS MADE.
THE APPELLATE DIVISION CITED TO THIS COURT'S SDWIGS IN KEN NED DEE VERSUS JEFFERSON
FOR THE PROPOSITION THAT THE CONCEPT OF THE USE OF VEHICLE INCLUDES THE
ACT OF LOADING AND UNLOADING THE VEHICLE IS WELL SETTLED. HOVR
THE COURT MISSED A YUSHL POINT IN KENNEDY, NAMELY THAT THE NEW JERSEY LEGISLATURE
HAS MANDATED OMNIBUS COVERAGE FOR LOSS RESULT, LIENLT IMPOSED BY LAW FOR
BODILY INJURY DEATH AN PROPERTY DAMAGE SUSTAINED BY ANY PERSON ARISING OUT OF THE
OWNERSHIP, MAINTENANCE OR OPERATION OR USE OF AN AUTOMOBILE AND IT CITED
TWO DIFFERENT NEW JERSEY STATUTES THE NO FAULT ACT AS WELL AS 39:6 B-ONE.
JUSTICE PATTERSON: PERSONAL INJURY -- JONATHAN A. CASS:
IT IS BODILY INJURY, DEATH AN PROPERTY DAMAGE. JUSTICE
PATTERSON: IS THAT BEYOND DAMAGE TO THE VEHICLE? JONATHAN A.
CASS: I BELIEVE IT DOES. CLOP RECORDING COMBOEG OUT. CLOP.
JONATHAN A. CASS: THAT'S A GOOD QUESTION. WHEN I READ THAT LANGUAGE I INTERPRETED
THAT TO MEAN PROPERTY DAMAGE. JUSTICE PATTERSON: I CERTAINLY
HAVEN'T LOOKED INTO THAT ISSUE, BUT PROPERTY DAMAGE AS OOI SEEN IT OVER
THE YEARS IN THESE NO-FAULT CASES IS THE DENT IN THE CAR, THE OR A TOTALLED CAR.
JONATHAN A. CASS: THE, IT WOULDN'T APPLY HERE BECAUSE IT'S
NOT A PERSONAL VEHICLE. JUSTICE PATTERSON: IS THIS A NEW THEORY
TODAY? THIS. JONATHAN A. CASS: I DON'T THINK IT'S
NECESSARILY A NEW THEORY. IT'S AN EXPANDED ARGUMENT BASED ON WHAT THE APPELLATE
-- I WANTEDED TO RESPOND TO WHAT THE APPELLATE DIVISION DID IN THEIR DECISION.
REMEMBER THE -- JUSTICE PATTERSON: LET ME JUST
GET THIS. YOU'RE CONTENDING THAT THAT PROPERTY DAMAGE WOULD
INCLUDE CONTAMINATION OF CARGO. JONATHAN A. CASS: IT INCLUDES ANY
PROPERTY DAMAGE THAT ARISES FROM THE USE OF THE VEHICLE. JUSTICE
PATTERSON: HERE, AGAIN, AN OBVIOUSLY THERE ARE MANY, MANY CASES WHERE THAT HAS BEEN
APPLIED BECAUSE IT'S SUCH A COMMON SCENARIO. HAS ANYBODY
EVER TRIED TO EXTEND THAT TO CARGO? JONATHAN A. CASS: WE'RE
NOT ASKING FOR -- JUSTICE PATTERSON: I UNDERSTAND THAT. WHAT
YOU'RE ASKING FOR IS DAMAGE TO SOMETHING THAT HAPPENED AFTER UNLOADING THE AGGREGATE
BECAUSE OF CONTAMINATION OF THE AGGREGATE AND I JUST -- I AM JUST UNFAMILIAR WITH
CASES IN WHICH THAT HAS BEEN EXTENDED TO EVEN DAMAGED CARGO, LET ALONE DAMAGE
TO PROPERTY THAT FOLLOWS? JONATHAN A. CASS: I DON'T THINK IT WOULD
BE EXTENDED TO CARGO FOR THE REASONS WE'VE TALKED ABOUT IN WHICH THE POLICY
DOESN'T PROVIDE COVERAGE FOR CARGO. THE PROPERTY DAMAGE WOULD BE PROPERTY
DAMAGE TO A THIRD PARTY THAT ARISES FROM THE. JUSTICE WAINER
APTER: YOU'RE SAYING THIS WOULDN'T COVER THE DAMAGE TO THE AGGREGATE ITSELF BUT
IT DOES COVER SOMETHING THAT THAT DAMAGE SUBSEQUENTLY CAUSED?
JONATHAN A. CASS: YES. JUSTICE WAINER APTER: WHAT KIND OF
INSURANCE POLICY DOESN'T COVER A SPECIFIC PROPERTY DAMAGE BUT THEN CORONAVIRUS OTHER
DABLG THAT MIGHT BE CAUSED BY THAT PROPERTY DAMAGE.
JONATHAN A. CASS: A COMMERCIAL POLICY UNDERSTAND NEW JERSEY LAW IS WHAT I WOULD
SUBMIT TO YOU IS THE ANSWER. JUSTICE WAINER APTER: YOU DON'T
HAVE ANY CASE TO FWIF THAT AS AN EXAMPLE, RIGHT? JONATHAN A.
CASS: THIS IS -- AND I THINK COUNSEL AND MYSELF AND EVEN THE APPELLATE DIVISION,
THERE IS REALLY NO CASE LAW THAT IS DIRECTLY ON POINT. THE ONLY CASE THAT
WE COULD FIND WAS THE TURNER CASE THAT DEALS WITH COMPLETED OPERATIONS KORJ, RIGHT?
THAT CASE IS COMPLETELY DISTINGUISHABLE FROM THIS ONE BECAUSE
THE MECHANISM OF INJURY IN THAT CASE WHICH WAS THE STRAP THAT ENDED UP STRIP TRIPPING
SOMEBODY, THAT DIDN'T HAPPEN UNTIL AFTER THE VEHICLE HAD DROPPED OFF THE
ROAD AN THE VEHICLE HAD LEFT. JUSTICE PATTERSON: HAS YOUR ADVERSARY
HAD AN OPPORTUNITY TO RESPOND ON THIS ISSUE? JONATHAN A.
CASS: I'M NOT SURE. JUSTICE PATTERSON: IS YOUR ADVERSARY HEARING
THIS THEORY FOR THE FIRST TIME THIS MORNING? JEFFREY H. QUINN:
I AM, YOUR HONOR. JONATHAN A. CASS: THE COURT STANDARD HERE IS
DE NOVO AS WE KNOW. JUSTICE PATTERSON: THAT DOESN'T MEAN THAT
LAWYERS WHO HAVE LITIGATED TO A CASE IN THREE LEVELS OF -- IN TWO APPEALS
AND AN ARRIVE HERE FOR ORAL ARGUMENT AFTER BRIEFING IS COMPLETED SHOULD BE HEARING
ARGUMENTS FOR THE FIRST TIME. JONATHAN A. CASS: I REALLY
UNDERSTAND BUT IT REALLY FLOWS OUT OF THE COURT'S ANALYSIS OF A COMPLETED
OPERATION DOCTRINE AND HOW THAT IS APPLIED IN NEW JERSEY LAW. THEY WERE CORRECT
IN HOW THEY INTERPRETED IT, BUT WHAT THEY WEREN'T CORRECT IN IS LOOKING
AT THE STATUTORY MANDATED COVERAGE AND HOW THIS EXCLUSION SHOULD BE INTERPRETED
BASED UPON THAT MANDATED COVERAGE THAT IS UNDER THE STATUTE. THERE
IS A CASE, PARK WAY OOIRN AN METAL WHERE THE COURT REFUSED TO ENFORCE AN EXCLUSION
-- THAT'S AN APPELLATE DIVISION CASE -- FROM COVERAGE FROM BODILY INJURY
AND PROPERTY DAMAGE RESULTING FROM THE MOVEMENT OF PROPERTY BY A MECHANICAL DEVICE
OTHER THAN HAND TRUCK NOT ATTACHED TO COVERED AUTO AND IT DETERMINED THAT
WAS CONTRARY TO PUBLIC POLICY. I THINK THE IMPORTANT CONCEPT HERE WITH
REGARD TO THOSE TWO EXCLUSIONS IS THAT, I THINK THE BARRY CONCRETE -- THE
FEDERAL COURT IN LOUISIANA IN BARRY CONCRETE INTERPRETED THEIR TWO EXCLUSIONS,
HANDLING OF PROPERTY AN COMPLETED OPERATIONS APPROPRIATELY BASED UPON
THE PLAIN MEANING OF THE LAW. AND -- THE PLAIN MEANING OF THOSE
PROVISIONS. I THINK A SECONDARY WAY TO LOOK AT THIS IS THAT
YOU ALSO HAVE TO INTERPRET THOSE EXCLUSIONS AS A MATTER OF PUBLIC POLICY WHICH IS
ONE OF THE REASONS WE CAME BEFORE THIS COURT. WE SAID WE THINK THIS CREATES A
GAP IN COVERAGE BECAUSE IF YOU ALLOW A CARRIER TO INTERPRET THOSE TWO
EXCLUSIONS THE WAY THEY HAVE AND THE WAY THE APPELLATE DIVISION HAS PERMITTED THE
CARRIER TO INTERPRET THEM, WE'RE GOING TO BE IN A SITUATION WHERE YOU CAN
HAVE AN ACT OF NEGLIGENCE INVOLVING A MOTOR VEHICLE THAT CREATES DAMAGE AND TLSZ
NO DISPUTE THAT IT CREATED DAMAGES, THAT IS NOT COVERED UNDER THAT AUTO POLICY.
JUSTICE PATTERSON: INSURANCE LAW IS CONTRACT LAW, RIGHT?
PARTIES CAN CONTRACT TO HAVE ALL POSSIBLE RISKS COVERED OR
THEY CAN CONTRACT TO HAVE SOMETHING LESS THAN ALL POSSIBLE RISKS COVERED, RIGHT?
JONATHAN A. CASS: AS LONG AS IT MEETS THE SATLY REQUIRED
KORJ UNDER THE STATE, YES. JUSTICE PATTERSON: IS YOUR WHOLE ARGUMENT
NOW PREMISED AS TO WHETHER OR NOT THE BIG PIKT OF THIS INSURED'S COVERAGE
DOES OR DOES NOT MEET THE STATUTE? JONATHAN A. CASS: NO. I THINK
A PLAIN MEANING, A PLAIN READING OF THOSE PROVISIONS, AS WAS DONE BY THE
COURT IN BARRY CONCRETE INDICATES THAT THOSE TWO EXCLUSIONS DO NOT APPLY HERE.
THAT IS WHAT THE BARRY CONCRETE COURT CONCLUDED. DOES THE
HANDLING OF PROPERTY THAT LED TO THE DAMAGES OCCURRED DURING THE OPERATION OF THE
VEHICLE, NOT BEFORE OR NOT AFTER. THE KEY HERE IS THAT ONCE
THAT AGGREGATE WAS CONTAMINATED, THE AGGREGATE IMMEDIATELY PUT THE CONCRETE
OUT OF SPECIFICATION AND MADE IT DEFECTIVE. JUSTICE FASCIALE: THAT'S
WHY I ASKED IN THE UNDERLYING CASE WHO YOU SUED? THE OWNER,
THE SUBCONTRACTOR'S REPORT AS JUSTICE PATTERSON POINTED OUT THERE COULD HAVE BEEN
A LOT OF ADMISSION MITIGATION OF DAMAGE IF THERE HAD BEEN ALLOCATION OF
RESPONSIBILITY. JONATHAN A. CASS: UNFORTUNATELY FOR MY CLIENT,
SILVI WERE THE ONES WHO MADE THE DEFECTIVE CONCRETE. JUSTICE
FASCIALE: YOU DIDN'T POUR IT. JONATHAN A. CASS: ONCE YOU MISS THE
AGGREGATE INTO THE CONCRETE, YOU'RE NOT GOING TO KNOW THAT IT HAS BEEN CON
TAMINATED WITH SALT UNTIL SOMETIME AFTER IT HARDENS AN THEN IT ERODES THE REBAR.
IT WAS THE RUST SUSTAIN THAT PUT AMAZON ON NOTICE OF THAT. THAT'S THE
ISSUE. YOU ALWAYS WANT TO TRY TO SPED THE BLAME, BUT THIS REALLY
FELL SOLELY ON SILVI'S SHOULDERS AND THERE IS, ALSO, AS WE KNOW, SOMETIMES, YOU HAVE
A GOOD CLIENT AND YOU SCREWED UP AND YOU RAISE YOUR HAND AND SAY IT'S MY
FAULT, I'M GOING TO TAKE CARE OF IT. THAT'S WHAT SILVI DID. NOW,
WHAT HAS HAPPENED IS NOTWITHSTANDING MJF'S EFFORTS TO OBTAIN COVERAGE THAT PROPER
PROTECT ITS OPERATIONS, THE AUTO CARRIER SAID WE'RE NOT GOING TO PROVIDE
COVERAGE FOR THIS. JUSTICE WAINER APTER: THIS WASN'T A CARGO
OPERATIONS POLICY OR A GENERAL LIABILITY POLICY. THIS WAS SPECIFICALLY AN AUTO
INSURANCE POLICY, CORRECT? IN. JONATHAN A. CASS: THE G L POLICY
HAS AN AUTO EXCLUSION WHICH HAS ARISING OUT OF LANGUAGE AND HAS BEEN
INTERPRETED BY THIS COURT VERY, VERY BROADLY WHICH IS BY COVINGTON THE C G L CARRIER
IS NO LONGER A PARTY TO THIS. JUSTICE SOLOMON: SO YOU'RE
NO LONGER RELYING ON APRIL PEL MAN'S RULE WHICH WAS BRIEFED BEFORE US.
YOU'RE NOW RELYING ON THE OMNIBUS ORDER OF LIABILITY STATUTE WHICH HAS A PROVISION
IN IT THAT REQUIRES THE PROPERTY DAMAGE BE COVERED, WHICH HAS NOT BEEN ARGUED
EMPLOYEE OR BRIEFED BEFORE US. JONATHAN A. CASS: YOUR HONOR, I'M
ARGUING IT AS AN ALTERNATIVE. JUSTICE SOLOMON: ALTERNATIVE
TO WHAT? JONATHAN A. CASS: THERE ARE TWO WAYS TO LOOK AT THE
HANDLING OF PROPERTY AN COMPLETED OPERATIONS. YOU CAN RELY
ON THE PLAIN MEANING OF STATUTE AS INTERPRETED BY BAR RECONCRETE AND YOU CAN
DETERMINE THAT THOSE TWO EXCLUSIONS DON'T APPLY. JUSTICE SOLOMON:
WHAT STATUTE? JONATHAN A. CASS: WHAT I AM SAYING IS BARRY
CONCRETE WASN'T A STATUTORY INTERPRETATION. IT WAS BASED ON THE PLAIN MEANING OF THE
LANGUAGE IN THE POLICY. I WOULD SAY TO THIS COURT THAT YOU CAN RELY ON THE
MEANING OF THAT LANGUAGE IN ORDER TO DETERMINE THAT NEITHER EXCLUSION APPLIES.
JUSTICE SOLOMON: THAT'S WHAT THE TRIAL JUDGE DID.
JONATHAN A. CASS: WHICH IS EXACTLY WHAT THE TRIAL JUDGE DID.
AS AN ALTERNATIVE, I WOULD REQUEST THAT THE COURT CONSIDER THE CONCEPT THAT THESE
EXCLUSIONS AS INTERPRETED BY THE APPELLATE DIVISION ARE CONTRARY TO OUR
STATUTORY SCHEME OF MANDATORY AUTOMOBILE INSURANCE IN NEW JERSEY AND THAT IF
YOU DECIDE TO DISREGARD THE PLAIN MEANING OF THE EXCLUSIONS, THAT, AS A BACKUP,
YOU CAN DETERMINE THAT THEY DON'T APPLY BECAUSE OF THE STATUTORY MANDATED
COVERAGE. JUSTICE PATTERSON: NEITHER OF THOSE SEEM TO ALIGN
WITH THE APPELLATE DIVISION'S DECISION SO YOU'RE SAYING APART FROM THE APPELLATE
DIVISION'S DECISION, GO BACK TO THE TRIAL COURT. JONATHAN A. CASS:
YES. ABSOLUTELY. THE COURT: OTHER QUESTIONS ANYONE? IN.
JUSTICE FASCIALE: NO. THE COURT: ANYTHING YOU WOULD
LIKE TO ADD IN CLOSING. JONATHAN A. CASS: NO '.
ANY FURTHER QUESTIONSES FOR ME? NO? THANK YOU.
THE COURT: THANK YOU, COUNSEL. JEFFREY H.
QUINN: 10 YEARS AGO WHEN I WAS A YOUNG IN AND OF 55, I WROTE THE KOERJ OPINION
IN THIS CASE TO SILVAOE AND HERE WE ARE 10 YEARS LALT LATER AND THE ISSUE
IS THE SAME THAT I CONFRONTED WHEN I WAS FIRST PRESENTED WITH THE ISSUE FROM MY
CLIENT AS TO WHETHER OR NOT THERE IS COVERAGE. MY GOOD FRIEND
MR. CASS IS A FABL LOSE LAWYER AND HE ARGUES VOE ASSIST RUSELY BUT IT'S REALLY
VERY, VERY SIMPLE AND I THINK FROM THE OBJECT SOIFRGS HIS PRESENTATION AND
THE QUESTIONS, THE KEY TO THIS IS VERY, VERY SIMPLE. WE JUST HAVE TO FIGURE OUT
IS THE PROPERTY DAMAGE THE A CONSULT RALTED AGGREGATE OR IS THE PROPERTY
DAMAGE THE RESULTING FLOORING. AND CANDIDLY I DON'T CARE WHICH ONE IT IS. MY
CLIENT DOESN'T CARE WHICH ONE IT IS. PERSONALLY WHEN I WROTE THE OPINION
10 YEARS AGO, I THOUGHT IT WAS THE AGGREGATE. DOUGLAS M.
FASCIALE: WHAT DO YOU MEAN YOU WROTE THE OPINION 10 YEARS ARGIROPOULOS SFLOO I
WROTE A COVERAGE OPINION TO MY CLIENT. DOUGLAS M. FASCIALE:
YOU MEAN A DIFFICULTIES CLANLER LETTER SFLOO A KOEFRNL OPINION HER TO THE
CLIENT PAFR. JUSTICE PATTERSON: THAT'S PRIVILEGED.
JEFFREY H. QUINN: ON THIS ISSUE AND IT IS THE SAMG ISSUE NOW WHERE I SAT
DOWN AND. JEFFREY H. QUINN: JUSTICE PATTERSON:
THAT'S PRIVILEGED WE ARE NOT ASKING ABOUT IT. JEFFREY H. QUINN:
I UNDERSTAND. BUT THE POINT BEING THAT WE'RE STILL IN THE SAME SFOT. ALL WE
HAVE TO DO TO DECIDE THIS IS TO FIGURE OUT UNDER THIS FACT PATTERN WHICH
WAS THE SAME FACT PATTERN WHEN I WAS FIRTS PRESENTED TO ME IS IT THE ADULT RALTED
AGGREGATE OR IS IT THE FLOOR. IF IT IS THE ADULTED AGGREGATE THE CARE,
CUSTODY AND CONTROL EXCLUSION APPLIES, IT'S THE SAME EXCLUSION THAT'S BEEN IN COMMERCIAL
AUTO POLICIES FOR AS LONG AS I HAVE BEEN PRACTICING LAW, AND IF IT IS THE
FLOORING, IT IS THE HANDLING OF PROPERTY AND THE COMPLETED OPERATIONS EXCLUSION
ANALYTICALLY THEY ARE THE SAME FOR OUR FACT PATTERN, MEANING THAT THAT DAMAGE
OCCURRED AFTER WE DUMPED THE AGO DWRAT AND LEFT OR AFTER THAT IS DAMAGE WILL GO
OF PROPERTY OR AFTER OUR CONTRACT WAS OVER WHICH WAS TO DRON THE AGGREGATE AT
SILVAOE AND LEAVE. SO EITHER WAY, AN EXCLUSION APPLIES. NOW, THE TRIAL
WHAT THE TRIAL COURT DID WAS INTERESTING. THE TRIAL COURT SAID FOR PURPOSES OF THE
CARE, CUSTODY AND CONTROL EXCLUSION THE PROPERTY DAMAGE IS THE RESULTING
FLOOR, THUS MJF NEVER POSSESSED THE FLOOR, SO THAT EXCLUSION DOESN'T APPLY. AND
THEN WHEN DRAEG THE HANDLING OF PROPERTY AND THE CARE, CUSTODY AND CONTROL
EXCLUSIONS, THE COURT TRIAL COURT WENT BACKWARDS AND SAID WELL IN THAT CASE THE
PROPERTY DAMAGE IS THE ADULT RATED AK GREAT WHICH OCCURRED BEFORE IN OUR
TRUCK BEFORE WE WERE FINISH WITH OUR WORK AND BEFORE OUR CONTRACT WAS UP, SO THEREFORE
NEITHER OF THE 3 EXCLUSIONS APPLY. THE APPELLATE DIVISION IN MY VIEW
CORRECTED THAT AND SAID, TRIAL COURT CAN'T HAVE IT BOTH WAYS, YOU JUST HAVE TO DEFINE
WHAT YOU THINK THE PROPERTY DAMAGE IS. DOUGLAS M. FASCIALE:
ISN'T THE DAMAGE THE AMOUNT THAT THE TA THAT SILVAOE HAS SOUGHT IN THIS
DECLARATORY JUDGMENT SUIT TO MAKE IT WHOLE ON THE UNDERLYING JUDGMENT WHICH WAS
FOR THE FLOOR NOT FOR THE AGGREGATE? FINANCE IF THAT'S THE CASE, THEN THE
EXCLUSIONS DO NOT APPLY. JEFFREY H. QUINN: I DISAGREE YOUR HONOR.
THEY SOUGHT MONETARY DAMAGES FOR THE FLOOR FOR PURPOSES OF THE POLICY YOU HAVE
TO. DOUGLAS M. FASCIALE: THAT'S WHY I ASKED HIM ABOUT THE
UNDERLYING CASE. THERE WAS NO ALLOCATION OF HOW THE DAMAGES WERE ARRIVED. THEY
DIDN'T BREAK OUT THIS AMOUNT FOR THE AGGREGATE, THERE AMOUNT FOR THE
REPLACEMENT, AND THIS AMOUNT FOR THE OTHER ASPECTS OF THE DEFECTIVE FLOOR. IT WAS
FOR AS I UNDERSTAND IT, WHAT THEY SOUGHT DAJTS FOR WERE SIMPLY TO REMOVE AND
REPLACE THE FLOOR NOT FOR THE AGGREGATE. JEFFREY H. QUINN: I UNDERSTAND
YOUR HONOR. DOUGLAS M. FASCIALE: SO THEREFORE IT DOES
MATTER. JEFFREY H. QUINN: THERE IS ASSURANCE POLICY.
JUSTICE PATTERSON: YOU ARE SAYING IF IT'S THE AGGREGATE ONE EXCLUSION
APPLIES AND IF IT IS THE SFLOOR IT IS THE OTHER TWO SFLOO EXACTLY.
JUSTICE PATTERSON: AND I THINK WE HEARD FROM YOUR ADVERSARY THAT HE IS GOING DO
WITH THE FLOOR THEORY EVEN TIERL SO WE CAN FORGET ANYTHING THAT WOULD APPLY
TO THE AGGREGATE. JEFFREY H. QUINN: I THINK THIS IS A DE NOVO
REVIEW YOUR HONOR AND I THINK IF THIS COURT THE HIGHEST COURT IN THE STATE SAYS
WE THINK IT'S THE AGGREGATE, THAT'S FINE WITH ME AS WELL BAY I THINK
ANALYTICALLY IT'S PROBABLY THE CLEAN EAST WAY TO LOOK AT. CHIEF
JUSTICE RABNER: TELL US WHY FINISH THAT THOUGHT. JEFFREY H.
QUINN: NO MENTAL GYMNASTICS NEEDED, YOUR HONOR. MJF TRUCK ^ PULLS ^ PULSE UP,
THE CLEAN AGGREGATE GOES IN, MJF TRUCK SHOWS UP AT SILVAOE AND DROPS IT
OFF, THE AGGREGATE IS ADULT RATED. IT'S AGGREGATE IS PROPERTY IT'S PERSONAL PROPERTY
IT COULD BE AIR CONDITIONERS IT KOOB AGGREGATE IT COULD BE WHATEVER. AND
SO WE GOT THE AGGREGATE CLEANED, THEY DROPPED OFF THERE IS THE INSURED THEY DROPPED
OFF THE AGGREGATE ADULT RALTED DAMAGE TO PROPERTY, DAMAGE TO PROPERTY DURING
THE WHEN CLEARLY MJF HAD CARE, CUSTODY AND CONTROL OF THAT AGGREGATE ENDS OF STORY.
I LIKE THAT BEST JUST FROM AN IF THERE WERE A LAWSUIT CLASZ I THINK THAT
IS THE CLEAN EAST ANALYSIS. ABOUT YOU IF THE COURT DOT THAN THE LIKE THAT.
JUSTICE PATTERSON: IT IS NOT A QUESTION OF LIKES CAN IT OR NOT LIKE CAN
IT. WE HAVE HAD SOME DISCUSSION TODAY THAT IS HAS NARROWED AT LEAST THE
THEORY APPEAR TO BE GOING WITH EXCLUSIVELY NOW IS IT IS THE FLOOR.
JEFFREY H. QUINN: BECAUSE THE APPELLATE DIVISION SAID IT'S THE FLOOR RIGHT.
JUSTICE PATTERSON: I AM KNOW THE SURE WHY BUT THAT'S WHAT YOUR ADVERSARY
IS TELLING US IS DON'T -- HE IS NOT DMOEG WITH APPLEMAN'S HE IS GOING WITH THE
EXCLUSIONS THAT HE SAYS DON'T APPLY TO THE FLOOR AS DAMAGE.
JEFFREY H. QUINN: UNDERSTOOD YOUR HONOR. JUSTICE PATTERSON: ADDRESS
THAT SFR. JEFFREY H. QUINN: FROM MY SMER TECH TIFR EVIDENCE
3 CLUGSS AND I HAVEN'T GIVEN UP ANY OF THOSE. JUSTICE PATTERSON:
I UNDERSTAND SFLOO IN TS COURT'S DE NOVO REVIEW IF YOU SAY I THINK THERE IS TOO
MUCH MENTAL JIM DMRAS PARTICULARS TO GET IT TO BE THE FLOOR, AND THIS IS A VERY
SIMPLE PICK UP CLEAN AGGREGATE DROP OFF ADULT RATED AGGREGATE CARE, CUSTODY
AND CONTROL OF THE AGGREGATE WHEN IT'S DAMAGED, ENDS OF STOOR I, I THINK THAT WORKS
AS WELL. BUT BACK TO YOUR HONOR'S QUESTION. DOUGLAS M.
FASCIALE: QUICK QUESTION YOU SAID YOU HAVEN'T GIFSH UP ANY OF THE 3. THE TRIAL
JUDGE CONCLUDED CARE, CUSTODY AND CONTROL DID NOT APPLY.
JEFFREY H. QUINN: HE SAID ALL 3 DID NOT. DOUGLAS M. FASCIALE: I
UNDERSTAND I AM TALKING ABOUT THAT ONE RIGHT. AN THAN ON THAT ONE DID YOU
CROSS APPEAL? JEFFREY H. QUINN: TO THE APPELLATE DIVISION,
YES. I APPEALED THAT WHOLE DECISION, YOUR HONOR, BECAUSE I LOST I LOST ALL 3 EXCLUSIONS
AT THE TRIAL KOERTD LEVEL. THAT WENT UP. DOUGLAS M. FASCIALE:
DID YOU CROSS PETITION ON THAT TOO. Q. THE APRIL DID I HAVE GREED
WITH THE TRIAL JUDGE. ON THE CARE, CUSTODY AND CONTROL?
JEFFREY H. QUINN: I APPEAL. DOUGLAS M. FASCIALE: THE ONLY TWO
QUESTIONS WE HAVE ARE THE HANDLING, THE HANDLING OF THE PROPERTY AND THE
COMPLETED OPERATIONS EXCLUSION. JEFFREY H. QUINN: THAT WAS SILVAOE'
S APPEAL FROM THE APPELLATE DIVISION. DOUGLAS M. FASCIALE:
RIGHT AND YOU DIDN'T CROSS PETITION. JEFFREY H. QUINN: I
DID NOT NAR MAYOR WOULD YOU HAVE NEEDED TO DO THAT BECAUSE IT WAS JUST A JMTH
SAYING THE CASE WAS OEFRP FOR A PARTICULAR REASON, YOU GREED THAT THE CASE SHOULD
BE OVER SO WOULD ACROSS PETITION HAVE BEEN REQUIRED? YOU WEREN'T TRYING TO
ENLARGE THE JUDGMENT IN ANY WAY YOU WN TRYING TO CHANGE THE JUDGMENT IN ANY WAY
YOU ARE JUST MAKING AN ALTERNATIVE ARGUMENT TO SUPPORT THAT JUDGMENT.
JUSTICE WAINER APTER: WAYNE. JEFFREY H. QUINN: CORRECT
YOUR HONOR. AND I WAS HAEP WITH THE APPELLATE DIVISION BECAUSE THE COURT
KNOWS I ONLY NEED ONE EXCLUSION TO APPLY AND THE CASE IS OVER FROM FOR MY CLIENT
WE PREVAIL. JUSTICE WAINER APTER: ASSUME U ARGUMENT ONLY
THE MRARN LANGUAGE OF THE HANTSDZ WILL GO OF THE PROPERTY IS THAT IF YOU SEE THE
DAMAGE AS THE FLOOR, THEN THAT DAMAGE OCCURRED QUOTE AFTER IT IS MOVED FROM
THE COVERED AUTO TO THE PLACE WHERE IT IS FINALLY DELIVERED BY THE INSURED. BECAUSE
THE DAMAGE TO THE FLOOR HAPPENED LONG AFTER THE MJF TRUCK WAS DONE AND LEFT.
JEFFREY H. QUINN: YES, YOUR HONOR. EXACTLY.
SO I LOOK AT THIS AS AND AGAIN, MY FRIENDS MR. CASS WHO IS MY FRIEND AND HE IS A
FANTASTIC LAWYER AND WE FOUGHT THIS CASE FOREVER IT SEEMGS LIKE, STARTED OUT
BY SAYING IT A VERY SIMPLE CASE AND THEN WENTSD OFF ON 0 SOME ARGUMENTS THAT CANDID
LY I COULDN'T REALLY FOLLOWING AND I DON'T THINK ARE REALLY BEFORE THIS COURT.
I THINK THINKS A VERY STRAIGHTFORWARD AND SIMPLE CASE AND I THINK THE KEERT JUST
HAS TO DEFINE WHAT IT BELIEVES IS THE PROPERTY DAMAGE PURNT TO THE POLICY
AND IF YOU SAY IT'S THE AGGREGATE, CARE, CUSTODY AND CONTROL APPLIES, CASE OVER,
NO COVERAGE, IT IS THE FLOORING, THAT OCCURS MONTHS LATER, THAT'S CLEARLY
AFTER OUR WORK WAS DONE AND AFTER THE CONTRACT WAS OVER SO THE HANDLING OF PROPERTY
AND THE CARE, CUSTODY AND CONTROL EXCLUSION APPLIES AS THE APPELLATE DIVISION
APPLIED, CASE OVER. MAYOR MAYOR YOU ARE ADVERSARY I THINK SEEVENLGS TO BE
SAYING THAT IT COULD HAVE BEEN. JUSTICE WAINER APTER: A FLOOR BUT
THE CAUSE OF IT WAS FROM THE AGGREGATE. SO IT'S COMMUNITY SUPERVISION FOR LIFE
A MIX BETWEEN THE AGGREGATE AND THE FLOOR AND YOU HEARD THE HYPOTHETICAL ABOUT
THE PERSON WHO DIDN'T KNOW THAT THEIR BACK INJURY HAPPENED UNTIL LATER.
CAN YOU THINK, ARE YOU AWARE OF A CASE WHERE THERE COULDN'T BE COVERAGE FOR THE
ACTUAL PROPERTY THAT WAS DAMAGED IN THE FORGE FRTD AGGREGATE BUT THERE COULD
BE COVERAGE FOR SOMETHING THAT THAT SUBSEQUENTLY CAUSES DAMAGE TO LATSER DOWN THE
ROAD. JEFFREY H. QUINN: I TOTALLY UNDERSTAND YOUR QUESTION,
YOUR HONOR. I DON'T KNOW OF ONE. I DO NOT. FAT PAT WHILE WE ARE SKK ABOUT WHETHER
YOU KNOW OF CASES, YOU LOID THE ARGUMENT WHICH YOU INDICATED WAS NEW TO YOU
ABOUT THE OMNIBUS AUTO LIABILITY STATUTE MANDATED COVERAGE FOR THIS PARTICULAR
DAMAGE. ARE YOU AWARE AND I KNOW I'M HITTING YOU WITH A LEFT FIELD QUESTION
BECAUSE IT IS NEW TO YOU, ARE YOU AWARE OF ANY EXTENSION OF THAT STATUTE TO A SITUATION
WHERE THE ALLEGATION IS THAT CARGO, THE AUTO POLICY HAS TO APPLY BECAUSE
CARGO WAS ADULT RATED DURING TRANSPORT AND THEN LATER CAUSED DAMAGE IN A DIFFERENT
LOCATION? JEFFREY H. QUINN: NOT AT ALL YOUR HONOR. I AM
FAMILIAR SOMEWHAT WITH THE STATUTE AND MY IMPRESSION ALWAYS WAS THAT THE PROPERTY
DAMAGE THAT WAS REFERRED TO THEREIN WAS PROPERTY DAMAGE TO THE VEHICLE. BUT
NO. AND I DON'T -- I MEAN, THAT ARGUMENT AS I HEARD IT FOR THE FIRST TIME TODAY
WOULD SEEM TO BE THAT THAT STATUTE I ADVICE RATES AUTOMOBILE COMMERCIAL
AUTOMOBILE POLICIES BECAUSE IT ESSENTIALLY ELIMINATES ANY EXCLUSIONS THAT ARE IN
THESE POLICIES. THERE BY THE WAY IS AN IS SO POLICY, THE POLICY IN QUESTION
AGAIN THESE ARE EXCLUSIONS THAT HAVE BEEN LITIGATED AND LOOKED AT ALL ACROSS THE
COUNTRY. WE DO NOT HAVE A LOT OF CASE LAW IN NEW JERSEY ON THESE BUT AGAIN, I
THINK -- I JUST THINK IT'S WHEN YOU GET DOWN FO IT IT'S AN EXCEEDINGLY
SILL LAR OR EXCEEDINGLY SIMPLE ANALYSIS FOCUSED SOLELY ON WHAT IS THE PROPERTY
DAMAGE. DOUGLAS M. FASCIALE: AND JUST TO FINISH THIS LINE
OF QUESTIONING. ON THE PLAIN LANGUAGE OF THE HANDLING OF THE PROPERTY EXCLUSION,
IT DOES NOT EXPRESSLY ADDRESS A SITUATION WHERE THERE IS DAMAGE DURING THE
DELIVERY TO PROPERTIES BUT THEN THAT DAMAGED PROPERTY LATER DAMAGE EAST OTHER PROPERTIES
CORRECT. JEFFREY H. QUINN: IT DOES NOT -- YOU ARE CORRECT
THAT IT DOES NOT SAY THAT YOUR HONOR. DOUGLAS M. FASCIALE: AND THE
SAME TLING APPLIES TO THE COMPLETED OPERATIONS EXCLUSION, IT DOES NOT
EXPRESSLY ADDRESS THIS FACT PATTERN, NAMELY DAMAGE TO PROPERTY DURING TRANSIT, AGGREGATE
BEING EXPOSED TO ASSAULT AND SNERN THAT DAMAGED AGGREGATE LATER DAMAGES
SOMETHING ELSE. A COMPLETED OPERATIONS, PLAIN LANGUAGE EXCLUSION IS NOT SPECIFICALLY
AN AND EXPRESSLY ADDRESS THAT EITHER CORRECT. JEFFREY H.
QUINN: CORRECT, YOUR HONOR, BUT I WOULD I WOULD ASK THIS QUESTION RHETORICALLY
BECAUSE I DNA GET TO ASK QUESTIONS OF THE COURT. IS THAT THE POLICY DEFINES
PROPERTY DAMAGE SO UNDER THAT FACT PATTERN RHETORICALLY WHAT WOULD BE THE PROPERTY
DAMAGE. DOUGLAS M. FASCIALE: WOULDN'T THAT BE A
QUESTION FOR THE UNDER WRITING DEPARTMENT? JEFFREY H. QUINN: I THINK
YOUR HONOR THAT WHAT THAT DOES IS A LOT OF MENTAL GYMNASTICS TO GET PAST
WHAT ARE PLAIN LANGUAGE AND UNAMBIGUOUS EXCLUSIONS THAT HAVEN IN COMMERCIAL
AUTO POLICIES FOR AGAIN I'VE ONLY BEEN DOING THIS FOR 40 YEARS HOWEVER LONG I HAVE
BEEN AT THAT THAT'S BEEN THE CASE. JUSTICE WAINER APTER: DIDN'T
YOU ALSO ARGIROPOULOS THAT THE PLAIN LANGUAGE OF THE COMPLETED OPTHSS DOES
SPECIFICALLY ADDRESS THERE BECAUSE IT SPECIFICALLY SAYS THERE INSURANCE DOES NOT
APPLY TO ANY OF THE FOLLOWING, DOTS DOT DOT, PROPERTIES DAMAGE ARISING OUT
OF YOUR WORK AFTER THAT WORK HAS BEEN COMPLETED OR ABANDONED. SO YOU COULD SAY
ONCE YOUR WORK, MEANING THE DELIVERY OF THE CONSTITUTIONAL FLATED AGGREGATE
IS COMPLETED OR ABANDONED, ANYTHING THAT HANS AFTER THAT IS SPECIFICALLY EXCLUDESED
BECAUSE THAT'S WHAT THE PLAIN LANGUAGE SAYS SO IT ACTUALLY IS ADDRESSING WHAT
HAPPENS IF THAT AGGREGATE CAUSES SOME OTHER DAMAGE IN 2 YEARS AND 10 YEARS AND 15
YEARS BECAUSE IT SPECIFICALLY SASZ EVERYTHING IS EXCLUDED AFTER YOUR WORK
HAS BEEN COMPLETED. JEFFREY H. QUINN: COMPLETELY CORRECT YOUR
HONOR. AND I THINK IN ANSWERING YOUR HONOR'S QUESTION, IT DOES NOT EXPLICITLY
ADDRESS YOUR SPLAN TRI FACT PATTERN BUT YES, YOUR HONOR I THINK YOU COULD CERTAINLY
READ THAT AS SAYING IT'S A HARD CUT OFF ONCE WE'RE DONE EITHER HANDLING
A PROPERTY, MEANING WE'RE DONE AND WE HAVE LEFT, OR COMPLETED OPTHSS WHICH JUST
MEANS OUR CONTRACT IS OVER, YES SHGS I THINK THAT THAT COULD CERTAINLY BE
INTERPRETED AS SORT OF A BRIGHT LINE THAT'S THAT IS THE KUTD OFF SKWENTS DAMAGE
IS NOT COVERED UNDER THE POLICY. FLOR FLOR IF THERE IS SOME LEJS.
JUSTICE NORIEGA: IN THE HANDLING OF THE PROPERTY LEADING UNTO THAT FINAL
MOMENT AND THERE IS NO INTERVENING FACTOR, WOULD THAT STILL PUT THEMG ON THE
HOOK? IN THE HANDLING. JEFFREY H. QUINN: COULD YOUR HONOR
EXPANDS ON WHAT YOU MEAN. JUSTICE NORIEGA: I AM TRYING TO FIGURE
OUT WHEN LAND WILL GO IS COMPLETED. IS IT WHEN IT'S PLACED, IS IT WHEN
IT IS DELIVERED, WHAT IS THE FINAL STEP. JEFFREY H. QUINN:
YES IN THIS CASE IT IS EASY YOUR HONOR BECAUSE WE KNOW WHEN IT STARLTED WHICH
IS WHEN THE AGO GRALT WALLS PUT IN THE MJF TRUCK, AND WE KNOW WHEN IT ENDED,
WHEN IT GOT DAUMD DUMPED IN TILL VEES' HON ERS AND A HOSPITALER IS JUST A STORAGE
BIN FOR AGGREGATE AND OTHER THINGS GET EVENTUALLY MIXED IN THE SETTLEMENT.
SO THIS ONE IS EASY. JUSTICE NORIEGA: DOESN'T PLACING IT THE IN
THE HOSPITALER MAKE IT INEVITABLE THAT IT WILL BE MIXED WITH THE OTHER COMPONENTS
TO MAKE THE CONCRETE. Q. JEFFREY H. QUINN: PRESUMABLY,
YOUR HONOR, YES. I MEAN THEY ONE ORDER IT IF THEY DIDN'T NEED IT.
JUSTICE NORIEGA: AT THAT POINT IT'S PREPARED TO THEN BE USED TO MAKE CONCRETE
SO THERE IS KNOW E CHANCE THAT THERE IS AN INTERVENING EVENT THAT IS GOING
TO CUT OFF WHAT WILL FLEFT BLEE HAPPEN, WHICH IS THAT THE CONCRETE WILL NOT HARDEN
PROPERLY OR WILL BE DAMAGED AS A RESULT OF THE SALTH. JEFFREY H.
QUINN: I GUESS THERE COULD BE ANY EVEN ENTER VEENG CAUSE YOUR HONOR IT COULD BE
A STRIKE OF LIGHT NINGS AND BURN DOWN THE PLANT BUT I THINK THAT THE PROBLEM
WITH THIS SORT OF SLIPPERY SLOPE ARGUMENT IS THAT WE HAVE JUST OUR CLASSIC AND
PLAIN LANGUAGE EXCLUSIONS AND THERE ARE CERTAINLY YOUR HONOR MENTAL GYMNASTICS
THAT CAN BE ATTEMPTED TO TRY TO CIRCUMVENT THEM BUT IF YOU JUST RIDES THE EXCLUSION
AND YOU LOOK AT THE FACTS, IT WAS EITHER DAMAGED THE PROPERTY IS THE AGGREGATE
AND IT WAS DAMAGED WHEN WE HAD CARE, CUSTODY AND CONTROL AND DROPPED IT OFF AND
THAT EXCLUSION APPLIES AND WE DON'T CARE ABOUT THE OTHER EXCLUSIONS, OR
THE COURT SAYS NO, THAT IS NOT IT, IT'S THE EVENTUAL FLOOR THAT'S OKAY TOO AND
CLEARLY UNDER THAT FACT FAERN CARE, CUSTODY AND CONTROL WOULD NOT APPLY
BECAUSE WE NEVER MJF NEVER POSSESSED OR CONTROLLED THE FLOOR, BUT THEN IT IMMEDIATELY
IMPACTS THE HANDLING OF PROPERTY WHICH AGAIN IS ONCE WE LEAVE WE'RE DONE
THERE IS YOUR BRIGHT LINE, AND/OR THE COMPLETED OPERATIONS. SO FAT PAT LET ME
PAUSE YOU ON COMPLETED ONGS LGS BECAUSE YOU SAID SOMETHING ABOUT THE CONTRACT.
JUSTICE PATTERSON: IF MJF'S THIS IS ADDRESSED TO MJF THE
POLICY IS. IT SAYS THE INSURANCE DOES NOT APPLY TO ANY OF THE FOLLOWING PROPERTIES
DAMAGE ARISING OUT OF QUOTE YOUR WORK AFTER THAT WORK HAS BEEN COMPLETED
OR ABANDONED. IS THAT ABOUT WHAT HAND ON THAT DELIVERY ON THAT DAY OR IS THAT
ABOUT WHEN THE MOMENT OF COMPLETION BEING WHAT MANUFACTURE HAS DONE ALL
ITS WORK FOR SILVAOE? JEFFREY H. QUINN: THE FORMER YOUR HONOR.
JUSTICE PATTERSON: SO IT IS JUST -- WE LOOK AT YOUR WORK
NOW THAT IS A DEFINED TERM IN THE POLICY RIGHT. JEFFREY H. QUINN:
YES PATS PAT AND YOUR WORK FOR PURPOSES OF OUR ANALYSIS YOUR CONTENTION IS.
JUSTICE PATTERSON: THE DELIVERY AT THE PLANT, ITS UNLOADED, THE TRUCK DRIVE
S AWAY, IF A KNEE, DONE, THAT'S THE COMPLETION. JEFFREY H.
QUINN: CORRECT YOUR HONOR BECAUSE IT IS AN OCCURRENCE FOLLOW SEE BECAUSE LET'S
SAY PLAINTIFF HAD A 10-YEAR CONTRACT TO DELIVER AGGREGATE ON SOME REGULAR
BASIS FROM WHEREVER THEY GOT IT TO THE SILVAOE PLANTS, FOR PURPOSES OF LIABILITY
INSURANCE, IT IS A -- IT IS THE EVENT OF THAT DELIVERY. SO THAT DELIVERY,
THAT CONTRACT, THAT WORK WAS PICK UP THE AGGREGATE NOR THAT DELIVERY, MAKE THAT
DELIVERY, AND OFF YOU GO. DOUGLAS M. FASCIALE: SO JUST THE
LAST QUESTION. LET'S USE THIS HYPOTHETICAL. THE AGGREGATE IS PLACED
INTO CLEAN TRUCKS WOUTS SALT. JEFFREY H. QUINN: OKAY.
DOUGLAS M. FASCIALE: THE AGGREGATE IS DELIVERED TO SILVAOE'S CONCRETE PLANT.
AND DELIVERED. DONE. YOUR WORK IS DONE. BEFORE THE AGGREGATE IS MIXED,
THAT IS BEFORE SILVAOE MIXS THE AGGREGATE TO CREATE THE CONCRETE, FOR THE SUBCONTRACTOR
TO POWER, SOMETHING HAPPENS TO THE AGGREGATE. IT'S EXPOSED TO SALT LET'S
SAY UNREMENTED TO THE DELIVERY. UNDER THE COMPLETED OPERATIONS EXCLUSION, THE
SHUNG WOULD NOT -- THE EXCLUSION WOULD APPLY AND THE INSURANCE WOULD NOT
COVER THE DAMAGE TO THE AGGREGATE THAT HAPPENED AFTER THE WORK WAS COMPLETE.
JEFFREY H. QUINN: YOUR HONOR, THE INSURANCE WONTS APPLY AT ALL BECAUSE
MJF WASN'T NEGLIGENT IN ANY WAY IT PICK UNCLEAN AGGREGATE AND DROPPED OFF
CLEAN AGGREGATE IF IT GETS ADULT RATED SOME OTHER TIME SOME OTHER WAY IT WOULD
HAVE NOTHING THO DO WITH THE NSHLTSDZ AND NOTHING TO DO WITH THE POLICY.
DOUGLAS M. FASCIALE: RIGHT. JUSTICE WAINER APTER: CAN I ASK
KWON DISHLG QUESTION I THINK ONE OF THE THERE INKS THAT TRUCKS ME ABOUT
IN CASE IS THAT IT SEEMED LIKE YOUR ARGUMENT THAT IT DOESN'T MATTER UNION COUNTY
IF THE PROPERTY IS X THEN WHY EXCLUSION APPLIES AND IF THE PROLT IS YT THEN
Z EXCLUSION APPLIES ONE OF THE THINGS THAT BOTHERED FLEE WHEN I FIRST REDZ IT THEN
THE POLICY WOULD NEVER APPLY SO THERE COULD BE NEGLIGENCE THAT MJF WAS
INVOLVED IN BUT THE FOLLOW SEE WOULD NEVER APPLY. BUT THEN I THINK YOUR ADVERSARY
LEPD ME BY GIVING PLEA THE EXAM PELG IF SOMEONE IS DRIVING A TRUSHG AND
CRASHES FLOO ANOTHER VEHICLE AND THAT PERSON JURORS THEIR BACK BUT THAT BACK INJURY
IS NOT DISCOVERED FLL 3 WEEKS LATER, YOU AGREE THAT WOULD BE COVERED.
JEFFREY H. QUINN: ABSOLUTELY. JUSTICE WAINER APTER: SO THE ONLY
REASON THAT YOU ARE ARGIROPOULOSING THAT THIS DOESN'T WOULD NOT BE COVERED
IS BECAUSE THIS SPECIFIC POLICY HAS AN EXCLUSION THAT IF WHAT IS DAJD IS IN THE
CARE, CUSTODY AND CONTROL OF THE INSURANCE HOLDSER AT THE TIME THAT IT IS
DANLD THERE IS NO COVERAGE. AUTO INSURANCE GENERALLY APPLIES WHEN ONE CAR LITS
ANOTHER CAR IF YOU DAMAGE THAT OTHER CAR AND THAT OTHER CAR WAS NOT IN YOUR
CARE, CUSTODY AND CONTROL AT THE TIME YOU DANLD IT THEN IT'S COVERED.
JEFFREY H. QUINN: EXACTLY, YOUR HONOR. AND UNION COUNTY WE DO HAVE TO GET
BACK TO THAT RIGHTS. IN THE MAIN IT IS AN AUTOMOBILE LIABILITY POLICY TO
PROTECTS OTHER DRIVERS IF THEY DAMAGE THEIR VEHICLES OR JUROR THEN PERSONALLY BUT
THE PURPOSE AND WE GOT INTO SOME OF THE PURPOSES OF INSURANCE I AM NOT SURE WHY,
BUT IN ANY EVENT IF WE ARE GOING TO LOOK AT THAT TOO, THAT'S THE WHOLE REASON
THEY HAVE A BAIL MENT POLICIES AND CARGO POLICIES AND OTHER THINGS. THIS IS AN
AUTO INSURANCE POLICY SO THEY SAY WE DON'T KNOW WHAT YOU'RE GOING TO CARRY,
WE DOERN KNOW HOW YOU ARE GOING TO CARRY IT, SO WE'RE HERE TO PROTECT THE PUBLIC
AND YOURSELF ON FIRST PARTY COVERAGE FOR AUTOMOBILE ACCIDENTS IN THE MAIN.
SO YOUR HONOR YOU ARE STRAIGHT ON THE FLOZ FOR THAT. DOUGLAS M.
FASCIALE: COMMERCIAL AUTO POLICY NOT. JEFFREY H. QUINN:
COMMERCIAL AUTS TOE YOUR HONOR YES. DOUGLAS M. FASCIALE:
A LITTLE DIFFERENT FAT PAT ONE LAST IF I MAY CLEEF. CHIEF JUSTICE
RABNER: ABSOLUTELY. JEFFREY H. QUINN: YOU COULD HAIF SAID NO
YOUR HONOR PAT FAT HE COULD HAVE HE IS VERY KIND. WHAT IS THE DEFINITION I'M UNSOLICITED
EMAILS FINDING IT IN THE OPINION EITHER FATHERS A PENDZ IBLG WHAT IS THE
DEFINITION OF YOUR WORK. JEFFREY H. QUINN: YES, I HAVE IT HERE
YOUR HONOR. JUSTICE PATTERSON: THANK YOU AND CAN YOU
GIVE US THE CITATION TO THE RECORD? JEFFREY H. QUINN: IT'S IN THE
COMPLETED OPERATIONS EXCLUSION. IT'S EXCLUSION NUMBER TEN.
JUSTICE PATTERSON: THANK YOU. JEFFREY H. QUINN: OF COVERAGE A SECTION
TWO. JUSTICE PATTERSON: OKAY. MY COLLEAGUE HAS
IT WE ARE ALL PREPARED. CHIEF JUSTICE RABNER: YOU OR OON OIR
BEHALF. JEFFREY H. QUINN: WORK OR ONGSS PERFORMED BY YOU OR
ON YOUR BEHALF. CHIEF JUSTICE RABNER: I SAID IT.
JUSTICE PATTERSON: IT WATS TERRIFIC BOTH OF YOU BOTH OF YOU DID ABUTS FULL
JOB FRMENTD BUT DOES THAT HOW DOES THAT TELL US THAT THE DELIVERY ENDS THE
WORK? BECAUSE THAT'S THANK YOU VERY MUCH. THAT'S VERY GENERAL LANGUAGE.
JEFFREY H. QUINN: I BELIEVE YOUR HONOR IS GOING BACK DO YOUR FIRST QUESTION
WHICH IS. JUSTICE PATTERSON: RIGHT. JEFFREY H. QUINN:
AGAIN I THINK THE KEY TO THAT -- I DON'T THINK THAT THAT DEFINITION NECESSARILY
ANSWERS THE QUESTION. I THINK WHAT ANSWERS THAT QUESTION IS IT'S AN OCCURRENCE
POLICY. SO IT COVERS OCCURRENCES AND SO. JUSTICE PATTERSON:
SO TO THE EXTENT THAT MJF DIDN'T DO ANYTHING FURTHER ON THIS DISASTROUS
SITUATION INVOLVING THE WAREHOUSE FLOOR, THEN WE SHOULD CONSIDER MANUFACTURE'S WORK
TO BE CONCLUDED. JEFFREY H. QUINN: FOR PURPOSES OF.
JUSTICE PATTERSON: COMPLETED FOR PUFRNLS OF THE FOLLOW SEE BECAUSE IT IS A SINGLE
KOIRNLS. JEFFREY H. QUINN: YES, YOUR HONOR. JUSTICE
PATTERSON: THANK YOU. JUSTICE PIERRE-LOUIS: UNDER THE COMPLETED
OPERATION GOES PROVISION IT INDICATES THAT YOUR WORK SHALL BE DEEMED COMPLETED
AT THE EARLIEST OF THE 3 DIFFERENT PARTICULAR CIRCUMSTANCES INCLUDING WHEN ALL
THE WORK CALLSED FOR IN YOUR CONTRACT HAS BEEN COMPLETED.
JEFFREY H. QUINN: YES, YOUR HONOR. JUSTICE PIERRE-LOUIS: YOUR PARTH
IS WANLS IT'S COMPLETE DZ THAT'S IT. CHIEF JUSTICE RABNER:
ANY OTHER QUESTIONS. JEFFREY H. QUINN: THANK YOU VERY MUCH.
CHIEF JUSTICE RABNER: THANK YOU COUNSEL WE WILL TAKE THE MATTER
UNDER ADVISE. THE COURT IS GOING TO TAKE A VERY BRIEF REST SES, WE INVITE THE
PARTIES UP FOR THE NEXT CASE, WE WILL BE BACK IN JUST A