Black & Veatch Corporation v. Aspen Insurance (UK) LTD et al, No. 2:2012cv02350 - Document 350 (D. Kan. 2019)

Court Description: MEMORANDUM AND ORDER granting in part and denying in part 337 Motion for Partial Summary Judgment; denying 339 Motion to Amend Scheduling Order and denying 340 Motion for Summary Judgment. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 3/29/19. (msb)

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Black & Veatch Corporation v. Aspen Insurance (UK) LTD et al Doc. 350 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS BLACK & VEATCH CORPORATI ON, Plaint iff, v. No. 12- 2350- SAC ASPEN I NSURANCE ( UK) LTD., et al., Defendant s. MEMORANDUM AND ORDER This insurance disput e over coverage and am ount of recovery com es before t he court on a second wave of sum m ary j udgm ent m ot ions following t he Tent h Circuit ’s order ( ECF# 329) vacat ing and rem anding t his court ’s prior sum m ary j udgm ent order and t he Unit ed St at es Suprem e Court ’s denial of t he defendant s’ pet it ion for cert iorari ( ECF# 349) , Black & Veat ch Corp. v. Aspen I nsurance ( Uk) Lt d, 882 F.3d 952 ( 10t h Cir.) , cert . denied, 139 S.Ct . 151 ( 2018) . The plaint iff Black & Veat ch Corporat ion ( “ B&V” ) has filed a m ot ion for part ial sum m ary j udgm ent ( ECF# 337) and a m ot ion t o am end t he pret rial order ( ECF# 339) . The defendant s Aspen I nsurance ( UK) Lt d. and Lloyd’s Syndicat e 2003 ( collect ively “ Aspen” or “ Excess I nsurers” ) have filed a m ot ion for sum m ary j udgm ent . ECF# 340. The m ot ions are fully briefed and ripe for decision. For t he sake of brevit y and convenience, t he court will incorporat e by reference from it s prior order t he sum m ary j udgm ent st andards ( ECF# 230, pp. 2- 3) and general New 1 Dockets.Justia.com York law governing int erpret at ion of insurance cont ract s and t he respect ive burdens of est ablishing coverage, exclusions and except ions ( ECF# 230, pp. 11- 17) . FACTUAL BACKGROUN D The plaint iff B&V is suing t he defendant s who are first layer excess um brella liabilit y insurers under a m anuscript com m ercial general liabilit y ( “ CGL” ) policy for coverage of B&V’s claim ed liabilit y for dam ages t o seven Jet Bubble React ors ( “ JBRs” ) . B&V cont ract ed wit h Am erican Elect ric Power ( “ AEP” ) “ t o engineer, procure and const ruct [ “ EPC” ] wet flue gas desulfurizat ion syst em s ( JBRs) for eight inst allat ions.” ECF# 294, ¶ 1, PTO) . “ Under an EPC cont ract , B&V delivers services under a single cont ract . I t supervises t he proj ect and t ypically subcont ract s m ost —if not all—of t he act ual procurem ent and const ruct ion work.” 882 F.3d at 954. B&V procured CGL policies t o cover it s JBR work. Zurich Am erican I nsurance Com pany ( “ Zurich” ) provided t he prim ary layer of coverage having t he following lim it s: $2,000,000 per occurrence and $4,000,000 for general and product s- com plet ed operat ions aggregat e lim it s. Aspen provided t he first layer of excess/ um brella liabilit y coverage wit h per occurrence and aggregat e lim it s of $25,000,000. As for t he propert y dam age claim m ade against B&V, t he Tent h Circuit sum m arizes it in t hese t erm s: For at least seven of t hese JBRs, which were locat ed at four different power plant s in Ohio and I ndiana, B&V subcont ract ed t he engineering 2 and const ruct ion of t he int ernal com ponent s t o Midwest Towers, I nc. ( “ MTI ” ) . Deficiencies in t he com ponent s procured by MTI and const ruct ed by MTI 's subcont ract ors caused int ernal com ponent s of t he JBRs t o deform , crack, and som et im es collapse. Aft er work on t hree of t he JBRs was com plet ed, and while const ruct ion of four ot hers was ongoing, AEP alert ed B&V t o t he propert y dam age arising from MTI 's negligent const ruct ion. AEP and B&V ent ered int o set t lem ent agreem ent s resolving t heir disput es relat ing t o t he JBRs at issue here. Under t he agreem ent s, B&V was obligat ed t o pay m ore t han $225 m illion in cost s associat ed wit h repairing and replacing t he int ernal com ponent s of t he seven JBRs. 882 F.3d at 954. The part ies also st ipulat e in t he pret rial order t o t he following fact s t hat are relevant t o t hese m ot ion proceedings: 11. Aft er Black & Veat ch com plet ed const ruct ion of t he Cardinal 1 and 2 and Conesville JBRs, t he Owners alleged deficiencies in t he work. 12. Cardinal 1 was com plet ed and began operat ing in March 2008. Deficiencies in t he JBR com ponent s were discovered as early as August 2008, and Cardinal 1 had t o be shut down and repaired. 13. Cardinal 2 was com plet ed and began operat ing in Decem ber 2007. Deficiencies in t he JBR com ponent s were discovered as early as May 2008, and Cardinal 2 had t o be shut down and repaired. 14. Conesville was com plet ed and began operat ing in January 2009. I n t he fall of 2009, it was det erm ined t hat t he gas risers inst alled at Conesville, as well as t he gas risers inst alled at each of t he ot her six JBRs, were deficient and required rem oval. 15. Because of defect ive gas risers and ot her deficiencies in t he JBRs, t he Owners dem anded t hat Black & Veat ch m ake repairs. 16. At t he t im e t he Owners m ade t heir dem ands on Black & Veat ch, t he Cardinal 1 and 2 proj ect s, and t he Conesville proj ect w ere com plet ed operat ions. 17. During t he sum m er of 2010, Black & Veat ch and t he Owners of t he JBRs, ent ered int o set t lem ent agreem ent s resolving t heir disput es relat ing t o eight JBRs, including t he seven at issue here. 18. As part of t he set t lem ent s, Black & Veat ch agreed, am ong ot her t hings, t o replace m ost int ernal com ponent s of t he JBRs. 19. I n replacing t he int ernal com ponent s, Black & Veat ch has obt ained cont ribut ion from various part ies responsible for t he cost s incurred. ( Dk. 294, pp. 4- 5) . 3 As it did in t he prior sum m ary j udgm ent order, t he court set s out t he general nat ure of t he plaint iff’s claim s deferring t o it s charact erizat ion. The plaint iff is claim ing coverage for propert y dam age result ing direct ly from t he work of t he subcont ract ors on behalf of B&V and from B&V’s failure t o deliver professional services bot h of which result ed in t he inst allat ion of defect ive risers. For t he t hree com plet ed and operat ing JBRs, Cardinal 1 and 2 and Conesville, B&V’s claim is for t he propert y dam age result ing from alleged deficiencies wit h t he inst allat ion and errors wit h t he design and supervision of t he risers t hat “ result ed in excessive m ineral deposit s accum ulat ing on t he decks and ot her int ernal com ponent s of t he JBRs, t he weight of which in t urn caused t hose com ponent s t o deform , crack, and, in som e cases, collapse ent irely.” ECF# 294, Pret rial Order, p. 7. Cardinal 1 and 2 JBRs were so badly dam aged t hat t he owners no longer considered t hem viable. I d. at p. 8. The owners dem anded com plet e replacem ent of t he badly dam aged int ernal com ponent s. I d. Thus, B&V is m aking a coverage claim for it s liabilit y incurred t o repair or replace t he propert y dam aged from t he occurrence of t he cont inual, ongoing and unforeseen buildup of deposit s in t he JBRs. ECF # 297- 3, Wood Dep. pp. 14- 17. For t he uncom plet ed JBRs, B&V’s claim is for propert y dam age t o ot her non- defect ive int ernal com ponent s t hat result ed from work done t o access, rem ove and replace t he inst alled defect ive gas risers. Thus, B&V is m aking a coverage claim for it s liabilit y for t he dam age done t o non- defect ive int ernal com ponent s from 4 being rem oved based on t he occurrence of t he defect ive gas risers being inst alled and t hen needing t o be t orn out . I d. at 297- 3, pp. 29- 30; ECF# 297- 8, Miller Dep. p. 157- 158. ASPEN ’S M OTI ON FOR SUM M ARY JUD GM EN T ( ECF# 3 4 0 ) Aspen advances num erous argum ent s, and t he court will follow t he order used by Aspen in it s original m em orandum . At t he out set , som e of Aspen’s argum ent s t rigger deciding whet her t hese m at t ers were resolved by t he Tent h Circuit on appeal and are subj ect t o t he law of t he case doct rine or t he m andat e rule. The law of t he case doct rine recognizes t hat , “ ‘[ w] hen a court decides upon a rule of law, t hat decision should cont inue t o govern t he sam e issues in subsequent st ages in t he sam e case.’” Mason v. Texaco, I nc., 948 F.2d 1546, 1553 ( 10t h Cir.1991) ( quot ing Arizona v. California, 460 U.S. 605, 618, 103 S.Ct . 1382, 1391, 75 L.Ed.2d 318 ( 1983) ) , cert . denied, 504 U.S. 910 ( 1992) . “ [ W] hen a case is appealed and rem anded, t he decision of t he appellat e court est ablishes t he law of t he case and ordinarily will be followed by bot h t he t rial court on rem and and t he appellat e court in any subsequent appeal.” Rohrbaugh v. Celot ex Corp., 53 F.3d 1181, 1183 ( 10t h Cir. 1995) ( cit at ion om it t ed) . The doct rine “ applies t o all issues previously decided, eit her explicit ly or by necessary im plicat ion.” Rohrbaugh, 53 F.3d at 1183 ( int ernal quot at ion m arks and cit at ion om it t ed) . “ The law of t he case doct rine is int ended t o prevent ‘cont inued re- argum ent of issues already decided,’ Gage v. Gen. Mot ors Corp., 796 F.2d 345, 349 ( 10t h Cir. 5 1986) , and t o preserve scarce court resources—t o avoid ‘in short , Dickens's Jarndyce v. Jarndyce syndrom e,’ McI lravy v. Kerr–McGee Coal Corp., 204 F.3d 1031, 1035 ( 10t h Cir. 2000) .” Huffm an v. Saul Holdings Lt d. Part n., 262 F.3d 1128, 1132 ( 10t h Cir. 2001) . “ An ‘im port ant corollary’ t o t he law of t he case doct rine, ‘known as t he “ m andat e rule,” provides t hat a dist rict court m ust com ply st rict ly wit h t he m andat e rendered by t he reviewing court .’” I d. ( quot ing Ut e I ndian Tribe v. Ut ah, 114 F.3d 1513, 1520–21 ( 10t h Cir. 1997) ) . Put anot her way, t he law of t he case doct rine “ requires a t rial court t o follow an appellat e court 's previous ruling on an issue in t he sam e case . . . . This is t he socalled ‘m andat e rule.’” Unit ed St at es v. Quint ieri, 306 F.3d 1217, 1225 ( 2d Cir. 2002) ( foot not e om it t ed) , cert . denied, 539 U.S. 902 ( 2003) . Thus, an issue decided on appeal m ay not be relit igat ed in t he sam e case and “ t here m ust be com pliance wit h t he reviewing court 's m andat e.” Grigsby v. Barnhart , 294 F.3d 1215, 1218 ( 10t h Cir. 2002) . I n t his circuit , “ [ t ] he m andat e consist s of our inst ruct ions t o t he dist rict court at t he conclusion of t he opinion, and t he ent ire opinion t hat preceded t hose inst ruct ions.” Proct er & Gam ble Co. v. Haugen, 317 F.3d 1121, 1126 ( 10t h Cir. 2003) ; cf. Quint ieri, 306 F.3d at 1225 n.5 ( “ Technically, t he ‘m andat e’ of t his Court consist s of a ‘cert ified copy of [ our] j udgm ent , a copy of t he opinion, and any direct ion as t o cost s.’“ ( quot ing Unit ed St at es v. Reyes, 49 F.3d 63, 66 ( 2d Cir.1995) ) . 6 Tent h Circuit ’s Holding on t he Meaning of t he CGL Policy On pages t wo and t hree above, t he court has already t he Tent h Circuit ’s sum m ary of B&V’s claim for propert y dam ages under t he CGL policy. see Black & Veat ch Corp. v. Aspen I ns. ( Uk) Lt d, 882 F.3d at 954. As far as t he t erm s of t he basic insuring agreem ent , t he panel not ed t hat t he CGL policy obligat ed Aspen t o pay on behalf of B&V it s legal obligat ion for “ ’Propert y Dam age’ . . . caused by an ‘Occurrence.’” 882 F.3d at 955. The Policy defines “ Occurrence” t o be an “ accident , including cont inuous or repeat ed exposure t o subst ant ially t he sam e general harm ful condit ions, t hat result s in . . . ‘Propert y Dam age’ t hat is not expect ed or int ended by t he ‘I nsured.’” I d. The Policy defines “ Propert y Dam age” as “ physical inj ury t o t angible propert y of a ‘Third Part y.’” I d. “ Third Part y” is defined as “ any com pany, ent it y, or hum an being ot her t han an ‘I nsured.’” I d. On t he issue of whet her t he dam age done t o t he JBRs was an occurrence, t he Tent h Circuit analyzed it as follows, in relevant part : We st art wit h t he Policy t erm s and definit ions, which are m at erially ident ical t o t he I SO's st andard- form CGL policy. Under t he Policy, an “ occurrence” is an “ accident ... t hat result s in ‘Bodily I nj ury’ or ‘Propert y Dam age’ t hat is not expect ed or not int ended by t he ‘I nsured.’” An occurrence t riggers coverage. We exam ine each part of t his definit ion. a. Accident al dam ages The Policy does not define “ accident ,” but t he New York Court of Appeals has explained t hat a CGL policy covers dam ages only when t hey were “ unexpect ed and unint ent ional.” Cont 'l Cas. Co., 593 N.Y.S.2d 966, 609 N.E.2d at 510 ( holding t hat t hese t erm s are t o be const rued narrowly as barring coverage “ only when t he insured int ended t he dam ages” ) ; see also Consol. Edison Co. of N.Y. v. Allst at e I ns. Co., 98 N.Y.2d 208, 746 N.Y.S.2d 622, 774 N.E.2d 687, 692 7 ( 2002) ( “ I nsurance policies generally require ‘fort uit y’ and t hus im plicit ly exclude coverage for int ended or expect ed harm s.” ) . A policyholder m ight t ake a “ calculat ed risk” —such as hiring a subcont ract or—wit hout “ expect ing” dam ages t o occur. See Cont 'l Cas. Co., 593 N.Y.S.2d 966, 609 N.E.2d at 510. “ [ I ] n fact , people oft en seek insurance for j ust such circum st ances.” I d. Whet her or not B&V t ook a “ calculat ed risk” by delegat ing work on t he JBRs t o a subcont ract or, Aspen does not argue—nor does t he record support —t hat B&V “ expect ed or int ended” MTI or any ot her subcont ract or t o cause dam age. Nor is t here evidence t hat B&V increased t he likelihood of such dam ages t hrough reckless cost - saving or ot her m easures. See Fuller, 613 N.Y.S.2d at 155 ( finding no “ occurrence” where dam ages arose from “ int ent ional cost - saving or negligent act s” ) . Thus, t he dam ages at issue here sat isfy t he Policy's accident al requirem ent . b. Propert y dam age t o a t hird part y The Policy covers cost s arising from propert y dam age. “ Propert y Dam age” is defined as “ physical inj ury t o t angible propert y of a ‘Third Part y.’” ROA, Vol. 1 at 72. A “ Third Part y” is defined as “ any com pany, ent it y, or hum an being ot her t han an ‘I nsured.’ ” I d. The dam age t o t he JBRs was physical inj ury t o t angible propert y. Aspen argues, however, t hat t he Policy designat es AEP—t he energy com pany t hat hired B&V t o const ruct t he JBRs—as an “ Addit ional I nsured,” and t hus AEP cannot be a t hird part y. See Aplee. Br. at 45 ( cit ing ROA, Vol. 7 at 1311) . This argum ent fails. Under t he Policy, an “ I nsured” is defined as any ent it y list ed as a “ Nam ed I nsured” or designat ed as an “ Addit ional I nsured.” The Policy list s B&V as t he “ Nam ed I nsured.” ROA, Vol. 1 at 63. Under Endorsem ent 33, AEP is designat ed as an “ Addit ional I nsured,” t hereby adding AEP t o B&V's exist ing insurance policy. See id. at 114. Grant ing one part y addit ional insured st at us on anot her's CGL policy is a “ com m on risk- shift ing t echnique” used in const ruct ion cont ract s. Sam ir Meht a, Addit ional I nsured St at us in Const ruct ion Cont ract s and Moral Hazard, 3 Conn. I ns. L.J. 169, 170 ( 1997) . But it does not m ean t he Policy precludes coverage of t he dam ages at issue here. First , AEP is an “ Addit ional I nsured” only wit h respect t o liabilit y for propert y dam age “ arising out of operat ions perform ed by t he Nam ed I nsured.” ROA, Vol. 1 at 114 ( em phasis added) . But here t he work perform ed by a subcont ract or ( MTI ) , not by t he “ Nam ed I nsured” ( B&V) , caused t he dam ages. Second, Endorsem ent 33 cont ains a “ separat ion of insureds” condit ion, which provides t hat t he Policy “ applies separat ely t o each I nsured against whom claim is m ade or suit is brought .” I d. I t s purpose is t o preserve coverage for dam age claim s m ade by one 8 insured ( here, AEP) against anot her ( B&V) . See West Am . I ns. Co. v. AV&S, 145 F.3d 1224, 1227 ( 10t h Cir. 1998) ( providing t hat under a “ separat ion of insureds” condit ion, each insured is “ ent it led t o have t he [ p] olicy const rued as t o it as if t he [ p] olicy were issued only as t o it alone” ) ; see also Greaves v. Pub. Serv. Mut . I ns. Co., 5 N.Y.2d 120, 181 N.Y.S.2d 489, 155 N.E.2d 390, 392 ( 1959) ( sam e) . I n ot her words, when AEP claim ed dam ages against B&V, t he separat ion of insureds clause rendered AEP a t hird part y wit h respect t o it s claim s for propert y dam age against B&V. This underst anding of t he Policy aligns wit h com m on sense: The principle risk B&V faced as an EPC cont ract or, and t hus a m ain reason for obt aining CGL insurance, was t he pot ent ial for claim s alleging dam ages m ade by t he propert y owner—AEP. Black & Veat ch Corp. v. Aspen I ns. ( Uk) Lt d, 882 F.3d at 962–64 ( foot not es om it t ed) . The m aj orit y plainly int ended it s analysis and conclusion t o be t he rule of law on t he m eaning of “ Occurrence” wit h it s com posit e elem ent s as applied t o B&V’s claim of propert y dam ages. See id. at p. 957 n. 6 ( “ The dist rict court held only t hat t he dam ages at issue here could not const it ut e a coverage- t riggering ‘occurrence’ under t he Policy, so it did not proceed t o t he next st ep of det erm ining t he effect of any Policy exclusions or except ions t o t he exclusions. I t should do so on rem and.” ) . 1 I n sum , t he Tent h Circuit has held as a m at t er of law t he following. B&V’s propert y dam age claim s “ sat isfy t he Policy’s accident al 1 “ The scope of t he m andat e on rem and in t he Tent h Circuit is carved out by exclusion: unless t he dist rict court 's discret ion is specifically cabined, it m ay exercise discret ion on what m ay be heard.” Dish Net work Corp. v. Arrowood I ndem . Co., 772 F.3d 856, 864 ( 10t h Cir. 2014) ( quot at ion m arks and cit at ion om it t ed) . The Tent h Circuit ’s foot not e suggest t his court ’s discret ion on rem and was cabined on t he first t wo issues, “ ( 1) Were t he dam ages caused by an occurrence? and ( 2) Were t he dam ages t he result of propert y dam age result ing from t he occurrence?” ( ECF# 320, p. 17) , but was allowed in deciding t he t hird issue, “ ( 3) Are t he dam ages excluded under one or m ore of t he policy exclusions?” id. 9 requirem ent .” I d. at 963. “ [ T] he separat ion of insureds clause rendered AEP a t hird part y wit h respect t o it s claim s for propert y dam age against B&V.” I d. at 964. The subcont ract or except ion and Endorsem ent 4 would be rendered surplusage under Aspen’s proposed m eaning of occurrence. I d. at 964- 65. The m aj orit y sum m arized it s holding in t his way: I n sum , t he propert y dam ages at issue were caused by an “ occurrence,” as t hat t erm is defined in t he Policy, because ( 1) B&V neit her int ended nor expect ed t hat it s subcont ract or would perform fault y work, so t he dam ages were accident al, ( 2) t he dam ages involved physical harm t o t he propert y of a t hird part y, and ( 3) a cont rary conclusion would render various Policy provisions m eaningless in violat ion of New York's rule against surplusage. Black & Veat ch Corp. v. Aspen I ns. ( Uk) Lt d, 882 F.3d at 965. The m aj orit y concluded it s opinion m aking it unm ist akably clear t hat it considered t he following t o be t he set t led law of t he case: Under t he Policy, t he dam ages at issue here were caused by a coverage- t riggering “ occurrence.” First , t he dam ages were accident al and result ed in harm t o a t hird- part y's propert y, t hus m eet ing t he Policy's definit ion of an “ occurrence.” Second, t he dist rict court 's int erpret at ion would violat e New York's rule against surplusage by rendering t he “ subcont ract or except ion” m eaningless. Third, t he changes I SO has m ade t o st andard- form CGL policies dem onst rat e t hat t he policies can cover t he dam ages at issue here. Fourt h, t he overwhelm ing t rend am ong st at e suprem e court s has been t o recognize such dam ages as “ occurrences.” Fift h, New York int erm ediat e appellat e decisions are dist inguishable, out dat ed, or ot herwise inapplicable. We predict t he New York Court of Appeals would decline t o follow t hese decisions and inst ead would j oin t he clear t rend am ong st at e suprem e court s holding t hat dam age from fault y subcont ract or work const it ut es an “ occurrence” under t he Policy. For t he foregoing reasons, we vacat e t he dist rict court 's sum m ary j udgm ent decision and rem and for reconsiderat ion in light of t his opinion. 10 Black & Veat ch Corp. v. Aspen I ns. ( Uk) Lt d, 882 F.3d at 971 ( foot not e om it t ed) . The court will apply t he law of t he case doct rine t o all issues explicit ly ruled upon in t he m aj orit y’s opinion as well as t hose issues necessarily decided by im plicat ion. Pursuant t o t he m andat e rule, t he court appreciat es t hat t he panel’s opinion regards t he coverage issues under t he basic insuring agreem ent t o be decided and for t he dist rict court on rem and t o m ove ont o t he next st ep of det erm ining t he Policy’s exclusions and except ions. see 882 F.3d at 957 n. 6; Proct er & Gam ble Co., 317 F.3d at 1126 ( t he m andat e includes t he panel’s ent ire opinion preceding it s final inst ruct ions) . Physical Harm t o Uncom plet ed Plant s Aspen first argues against coverage under t he basic insuring agreem ent because t he com ponent s lat er replaced in t he four uncom plet ed JBRs were not dam aged or physically inj ured. “ Rem oval and replacem ent of t he new com ponent s is not physical inj ury or propert y dam age.” ECF# 342, p. 37. Aspen asks t his court t o find t hat propert y dam age “ occurs” only if t he defect ive work physically inj ures ot her part s of t he proj ect . To t ake up t his issue now would first require t his court t o lim it t he Tent h Circuit ’s ruling on appeal t hat , “ The dam age t o t he JBRs was physical inj ury t o t angible propert y.” 882 F.3d at 963. I ndeed, t he panel in holding t hat t he “ dam ages were caused by a coverage- t riggering 11 ‘occurrence’” had t o conclude t hat “ t he dam ages were accident al and result ed in harm t o a t hird- part y's propert y.” I d. at 971. The law of case doct rine ext ends t o issues decided explicit ly or by necessary im plicat ion. Dobbs v. Ant hem Blue Cross and Blue Shield, 600 F.3d 1275, 1280 ( 10t h Cir. 2010) . For a prior appeal t o have im plicit ly resolved an issue, t his Circuit looks t o t hree circum st ances: “ ( 1) resolut ion of t he issue was a necessary st ep in resolving t he earlier appeal; ( 2) resolut ion of t he issue would abrogat e t he prior decision and so m ust have been considered in t he prior appeal; and ( 3) t he issue is so closely relat ed t o t he earlier appeal it s resolut ion involves no addit ional considerat ion and so m ight have been resolved but unst at ed.” I d. ( quot ing McI llravy v. Kerr- McGee Coal Corp., 204 F.3d 1031, 1036 ( 10t h Cir. 2000) ) . There is no plain st at em ent or any clear indicat ion t hat t he Tent h Circuit was lim it ing it s “ occurrence” analysis t o t he com plet ed JBRs or was except ing or reserving t he uncom plet ed JBRs from it s “ occurrence” analysis. Wit hout such a st at em ent or indicat ion, t he court regards t he appellat e panel’s “ occurrence” findings as necessarily incorporat ing by im plicat ion all seven plant s, com plet ed and uncom plet ed. Aspen asks t he court t o lim it t he panel’s occurrence finding t o t he com plet ed plant s based on t his language in t he panel’s opinion: Deficiencies in t he com ponent s procured by MTI and const ruct ed by MTI 's subcont ract ors caused int ernal com ponent s of t he JBRs t o de for m , cr a ck , a n d som e t im e s colla pse . Aft er work on t hree of t he JBRs was com plet ed, and while const ruct ion of four ot hers was ongoing, AEP alert ed B&V t o t he propert y dam age arising from MTI 's negligent const ruct ion. AEP and B&V ent ered int o set t lem ent agreem ent s resolving t heir disput es 12 relat ing t o t he JBRs at issue here. Under t he agreem ent s, B&V was obligat ed t o pay m ore t han $225 m illion in cost s associat ed wit h repairing and replacing t he int ernal com ponent s of t he seven JBRs. 882 F.3d at 954 ( bolding added) . The above bolded t erm s are cert ainly act ive verbs t hat describe t he dam age done t o t he t hree com plet ed plant s. But , it is im m ediat ely followed by t he descript ion of AEP alert ing B&V t o propert y dam age t hat involved all seven JBRs and result ed from t he subcont ract or’s negligent const ruct ion. The Tent h Circuit concludes it s discussion of B&V’s propert y dam age claim by not ing t hat in t he set t lem ent wit h AEP, B&V “ was obligat ed t o pay m ore t han $225 m illion in cost s associat ed wit h repairing and replacing t he int ernal com ponent s of t h e se ve n JBRs.” I d. ( bolding added) . As fairly underst ood on it s face, t he Tent h Circuit ’s opinion addresses B&V’s claim for propert y dam ages t o include all seven JBRs wit hout dist inguishing bet ween com plet ed and uncom plet ed plant s. Thus, t he Tent h Circuit ’s ruling t hat propert y dam ages occurred here is subj ect t o t he law of t he case doct rine, and t he m andat e rule requires t his court is follow it . I n t he alt ernat ive, t he court is persuaded t hat New York follows t he incorporat ion t heory in holding t hat an inj ury occurs w hen a defect ive com ponent is int egrat ed int o a larger product . See, e.g., St urges Mfg. Co. v. Ut ica Mut . I ns. Co., 37 N.Y.2d 69, 72- 73, 332 N.E.2d 319 ( 1975) ( “ When one product is int egrat ed int o a larger ent it y, and t he com ponent product proves defect ive, t he harm is considered harm t o t he ent it y t o t he ext ent 13 t hat t he m arket value of t he ent it y is reduced in excess of t he value of t he defect ive com ponent .” ( cit at ion om it t ed) ) ; see, e.g., Adler & Neilson Co. v. I nsurance Co. of N. Am ., 56 N.Y.2d 540, 542- 543, 434 N.E.2d 1335 ( 1982) ( repair and replacem ent cost s incurred for non- defect ive com ponent s were propert y dam age as t hey result ed from repairing t he defect ive part s) ; Franco Belli Plum bing & Heat ing and Sons, I nc. v. Libert y Mut . I ns. Co., 2012 WL 2830247 at * 8 ( E.D.N.Y. Apr. 19, 2012) ( cit ing in part , Chubb I ns. Co. of N.J. v. Hart ford Fire I ns. Co., No. 97 Civ. 6935, 1999 SL 760206, at * 8 ( S.D.N.Y. 1999) ( “ Under New York case law, when an insured is unaware, as here, of a defect in it s com ponent of a product , which defect dim inishes t he value of t he product int o which it is incorporat ed, result ing in dam age, such dam age is considered t o arise out of an ‘occurrence.’” ) , aff’d, 229 F.3d 1135 ( 2d Cir. 2000) .” ) ) . The court ’s int erpret at ion and applicat ion of t he Tent h Circuit ’s ruling on propert y dam age is consist ent wit h New York law. Dam age t o Third Part y Propert y and “ Part icular Part ” in Endorsem ent 4 Aspen cont ends t he replaced com ponent s were B&V’s propert y, not t he propert y of a t hird part y, by reading t he const ruct ion cont ract t o say t hat B&V “ owns” t he com ponent s unt il com plet ion of t he plant . Aspen ext ends t his argum ent relying on Exclusion D t hat carves out propert y dam age t o propert y “ owned” by t he “ I nsured” and on Endorsem ent 8 t hat m akes t he policy inapplicable t o propert y dam age “ t o real propert y leased t o, rent ed t o, occupied or m anaged by any I nsured except as respect s 14 coverage provided by . . . Endorsem ent 4.” ECF# 342, pp. 40- 41. Aspen also point s t o subparagraph ( 3) of Exclusion D as reaching “ t hat part icular part of real propert y on which t he ‘insured’ or any cont ract ors or subcont ract ors working direct ly or indirect ly on t he ‘insured’s’ behalf are perform ing ‘your work’, if t he ‘propert y dam age’ arises out of ‘your work.’” ECF# 284- 1, p. 23. Aspen reads t his subparagraph t o exclude coverage not j ust for t he defect ive work but for t he “ ent ire scope of B&V’s work.” Aspen says New York law support s it s reading. ECF# 342, p. 41. To t ake up t hese issues now, t he dist rict court again would be forced t o lim it an express ruling m ade by t he Tent h Circuit on appeal and again would have no grounds in t hat opinion for doing so. I n finding t here was an “ occurrence” under t he policy, t he Tent h Circuit also had t o find t here was “ propert y dam age” which t he policy defined as “ physical inj ury t o t angible propert y of a t hird part y.” 882 F.3d at 962- 63. On t he t hird- part y quest ion, t he Tent h Circuit explicit ly addressed one of Aspen’s argum ent s t hat AEP was an insured under t he policy, not a t hird part y. The Circuit panel concluded: I n ot her words, when AEP claim ed dam ages against B&V, t he separat ion of insureds clause rendered AEP a t hird part y wit h respect t o it s claim s for propert y dam age against B&V. This underst anding of t he Policy aligns wit h com m on sense: The principle risk B&V faced as an EPC cont ract or, and t hus a m ain reason for obt aining CGL insurance, was t he pot ent ial for claim s alleging dam ages m ade by t he propert y owner—AEP. 15 I d. at 964. The Tent h Circuit expressly found above t hat AEP was t he owner and t hird part y wit h respect t o it s claim s for propert y dam age against B&V. Aspen does not reply t o B&V’s argum ent s t hat t he Tent h Circuit ’s rulings are t he law of t he case doct rine on t he issue of t hird- part y dam ages. This court is required t o follow t he Tent h Circuit ’s ruling on t his issue. And even if t his issue had not been decided on appeal, t his court would have decided t hat AEP owned t he JBRs at t he t im e of propert y dam age based on t he “ 31.0 Tit le and Risk of Loss” provision in t he AEP cont ract . As for t he “ part icular part ” in Endorsem ent 4, t he Tent h Circuit discussed it in t hese t erm s: The second exclusion, known as “ Endorsem ent 4,” excludes coverage for propert y dam age t o t he “ part icular part of real propert y” t hat B&V or it s subcont ract ors were w orking on when t he dam age occurred. I d. at 83. This exclusion pert ains only t o ongoing, rat her t han com plet ed, work. . . . . I n t he cont ext of ongoing work, t he st andard- form CGL policy excludes coverage for propert y dam age t o “ [ t ] hat part icular part of real propert y on which you or any cont ract ors or subcont ract ors working ... on your behalf are perform ing operat ions, if t he ‘propert y dam age’ arises out of t hose operat ions.” CGL Coverage Guide, App. B: 1986 Occurrence Form , at 298; see also I SO 1986 Circular ( explaining t hat t he policy covers “ dam age caused by fault y workm anship t o ... part s of work in progress” ot her t han what t he cont ract or or subcont ract ors were working on) . I n ot her words, t he policy excludes dam age t o “ t hat part icular part ” of t he proj ect upon which t he insured's operat ions were being perform ed at t he t im e t he dam age occurred, but it covers dam age t o propert y ot her t han “ t hat part icular part .” This is t he current underst anding of t he phrase “ t hat part icular part ” in t he insurance indust ry t oday. Scot t C. Turner, “ That part icular part ” lim it at ion, I nsurance Coverage of Const ruct ion Disput es § 29: 7 ( 2d ed. 2017) . . . . . 16 Aspen's int erpret at ion of an “ occurrence” would also render “ Endorsem ent 4” surplusage. As described above, “ Endorsem ent 4” pert ains t o ongoing work and excludes coverage for propert y dam age t o “ t hat part icular part of real propert y” on which B&V or it s subcont ract ors were act ively working. See ROA, Vol. 1 at 83 ( em phasis added) . I f fault y workm anship result ing in dam age t o B&V's own work could never t rigger coverage as an “ occurrence,” t his part of “ Endorsem ent 4” would be m eaningless. I n ot her words, t here would be no reason for “ Endorsem ent 4” t o exclude coverage only for dam age t o a “ part icular part ” of t he JBRs if t he Policy could never cover dam age t o t he insured's work in t he first inst ance. Black & Veat ch Corp., 882 F.3d 955–56, 960, 965. I n discussing Endorsem ent 4, t he Tent h Circuit int erpret ed it t o exclude coverage “ for dam age t o a ’part icular part ’ of t he JBRs.” I d. at 965. This int erpret at ion necessarily precludes Aspen’s int erpret at ion t hat t he exclusion covers t he “ ent ire scope of B&V’s work,” t hat is, t he ent ire plant . Aspen does reply t o B&V’s argum ent t hat t he Tent h Circuit has int erpret ed t he “ part icular part ” language of Endorsem ent 4. Aspen singles out t he Tent h Circuit ’s opinion at page 960 as no m ore t han a com m ent on one t reat ise writ er’s opinion about t his exclusionary language in CGL policies. Aspen also argues t he Tent h Circuit ’s discussion of Endorsem ent 4 was not a final ruling but was only t o show how t his provision would be rendered superfluous if t he insuring agreem ent could not “ cover dam age t o t he insured’s work in t he first inst ance.” 882 F.3d at 965. The above quot e from t he Tent h Circuit ’s opinion plainly shows t he m aj orit y did int erpret “ t hat part icular part ” in Endorsem ent 4 as applying only t o ongoing work and only “ t o a ‘pa r t icu la r pa r t ’ of t he JBRs,” not t he ent ire JBRs plant . For t he 17 court t o rule in favor of Aspen on t his argum ent , t he dist rict court would have t o int erpret “ part icular part ” cont rary t o t he appellat e court ’s opinion. The Tent h Circuit ’s narrow reading of “ part icular part ” was im port ant in drawing it s conclusion on surplusage. A broader reading of “ part icular part ” would have cert ainly weakened t he surplusage rat ionale behind it s ruling. The law of t he case doct rine forecloses t he court ’s considerat ion of Aspen’s argum ent on t his issue. Propert y Dam age t o Cardinal 3 Occurring During Policy Period Under t he basic insuring agreem ent , Aspen is t o pay B&V for it s legal obligat ions t o pay “ ’Propert y Dam age’ occurring during t he Policy Period st at ed in I t em 4 of t he Declarat ions.” ECF# 284- 1, p. 7. Declarat ion I t em 4 specifies a policy period from Novem ber 1, 2007, t o Novem ber 1, 2008. Cit ing t he t est im ony of B&V’s corporat ive represent at ive, Sheldon Wood, Aspen argues t hat t he “ propert y dam age” for t he Cardinal 3 plant was t he rem oval and replacem ent of JBR int ernal com ponent s and t hat t he rebuilding of Cardinal 3 did not begin unt il 2010 or aft er t he policy expired. The issue here is whet her propert y dam age occurred during t he policy period as t o t rigger coverage. Applying New York’s “ inj ury in fact ” t est for det erm ining t he t rigger dat e of CGL coverage, B&V argues t he inj ury here occurred when t he defect ive gas risers were inst alled or w hen B&V was negligent in providing proper professional services relat ed t o gas risers. B&V also point s t o New 18 York case law finding propert y dam age as occurring when a defect ive part was inst alled. B&V believes t here are genuine issues of m at erial fact here t hat preclude sum m ary j udgm ent . I n reply, Aspen com es forw ard wit h t he following new argum ent : B&V argues t hat t here is a quest ion of fact on w hen t he inst allat ion of t he defect ive risers occurred at Cardinal 3: t hus t his Court should deny Aspen/ Cat lin’s Mot ion for Sum m ary Judgm ent as t o t his plant . . . . However, Paragraph 38 of t he Consent Decree in t he MTI Lit igat ion recit ed t hat “ Const ruct ion at Cardinal 3 did not begin unt il 2008. There, gas risers were inst alled wit hout proper inspect ion by MTI from January 2009 t hrough March 2009, in breach of it s dut ies as const ruct ion and proj ect m anager.” ( Dkt . # 311- 1, Ex. B) . This is out side Defendant s’ policy period and, t herefore, sum m ary j udgm ent for Defendant s as t o Cardinal 3 is appropriat e. ECF# 348, p. 17. Because t hese inst allat ion dat es are out side t he policy period, Aspen argues it is ent it led t o sum m ary j udgm ent on Cardinal 3. Aspen wait ed unt il it s reply brief t o m ake t his argum ent and present t hese addit ional fact s. Generally, issues raised for t he first t im e in a reply brief are not considered wit h an except ion for new issues raised in reply t o t he respondent ’s argum ent s. I n re Gold Resource Corporat ion Securit ies Lit igat ion, 776 F.3d 1103, 1118 ( 10t h Cir. 2015) . Aspen’s new argum ent replies t o B&V’s posit ion on t he “ inj ury- in- fact ” occurring when defect ive risers were inst alled or when B&V negligent ly perform ed it s professional services. “ The Court will not consider argum ent s raised for t he first t im e in a reply brief, part icularly where t he argum ent s could have been m ade in t he first inst ance.” Swim wear Solut ion, I nc. v. Orlando Bat hing Suit , LLC, 309 F. Supp. 3d 1022, 1044 ( D. Kan. 2018) ( int ernal quot at ion m arks 19 and cit at ion om it t ed) . As t he following discussion of New York’s law on t riggering event s m akes clear, Aspen could have m ade t his argum ent in it s opening m em orandum . Therefore, t he court will not consider Aspen’s new fact ual argum ent s first m ade in it s reply brief. “ New York law follows t he ‘inj ury- in- fact ’ t est which ‘rest s on when t he inj ury, sickness, disease or disabilit y act ually began.” Maxum I ndem n. Co. v. A One Test ing Laborat ories, I nc., 150 F. Supp. 3d 278, 285 ( S.D.N.Y. 2015) ( quot ing Downey v. 10 Realt y Co., LLC, 78 A.D.3d 575, 911 N.Y.S.2d 67, 67 ( 2010) ( int ernal quot at ion om it t ed) ) . The New York Court of Appeals has held: I n Maryland Cas. Co. v Grace & Co. ( 23 F3d 617) t he Second Circuit , applying New York law, held t hat , in an asbest os propert y dam age claim , t he “ t rigger dat e” for insurance coverage purposes is t he dat e of inst allat ion, for it is at t hat point t hat t he building owner sust ains an inj ury in fact . This Court reached a sim ilar conclusion in St urges Mfg. Co. v Ut ica Mut . I ns. Co. ( 37 NY2d 69, 72- 73) , holding t hat “ [ w] hen one product is int egrat ed int o a larger ent it y, and t he com ponent product proves defect ive” t he larger ent it y has sust ained an inj ury in fact . MRI Broadway Rent al, I nc. v. U.S. Mineral Product s Co., 92 N.Y.2d 421, 42728, 704 N.E.2d 550 ( 1998) . “ When one product is int egrat ed int o a larger ent it y, and t he com ponent product proves defect ive, t he harm is considered harm t o t he ent it y t o t he ext ent t hat t he m arket value of t he ent it y is reduced in excess of t he value of t he defect ive com ponent .” St urges Mfg. Co. v. Ut ica Mut . I ns. Co., 37 N.Y.2d 69, 72- 73, 332 N.E.2d 319, 322 ( 1975) . “ When fault y workm anship in building m at erials is t he gravam en of 20 an allegat ion of propert y dam age, ‘under an inj ury- in- fact analysis, t he inj ury m ay be said t o occur at t he t im e of inst allat ion.’” Maxum I ndem n. Co., 150 F. Supp. 3d at 285 ( quot ing St onewall I ns. Co. v. Nat 'l Gypsum Co., No. 86 Civ. 9671 ( JSM) , 1992 WL 123144, at * 14 ( S.D.N.Y. May 27, 1992) , aff'd in part and rev'd in part on ot her grounds, 73 F.3d 1178 ( 2d Cir. 1995) ) ; see Hoechst Celanese Corp. v. Cert ain Underwrit ers at Lloyd’s London, 673 A.2d 164, 169 ( Del. 1996) ( “ [ U] nder New York law, an inj ury- in- fact or propert y dam age m ay occur at different point s in t im e along t he cont inuum from init ial exposure or inst allat ion t o act ual m anifest at ion. ( cit at ions om it t ed) . Accordingly, . . ., propert y dam age sufficient t o t rigger insurance coverage m ay occur as early as inst allat ion of t he plum bing syst em s int o housing unit s.” ) . New York law recognizes t he t riggering event of coverage for propert y dam age from a com ponent part , like t he defect ive risers, can occur as early as t he part ’s inst allat ion. Therefore, Aspen is not ent it led t o sum m ary j udgm ent on it s argum ent t hat coverage was not t im ely t riggered because t he rem oval and replacem ent of Cardinal 3’s non- defect ive int ernal part s occurred aft er t he policy period. Coverage for Replacing Non- Dam aged Part s in Com plet ed Plant s Aspen argues t hat B&V cannot recover as propert y dam age a claim for physical inj ury t o propert y caused by it s “ int ent ional act of rem oving perfect ly good com ponent s t o access ‘defect ive’ com ponent s.” 21 ECF# 342, p. 44. “ Under New York law, insurance policies require fort uit y and exclude coverage for expect ed or int ended propert y dam age.” I d. ( cit ing Consolidat ed Edison Co. of N.Y. v. Allst at e I ns. Co., 98 N.Y.2d 208, 220, 774 N.E.2d 687 ( 2002) . Aspen argues B&V’s int ent ional dem olit ion of t he JBRs is not a fort uit ous loss and is not propert y dam age. The court again believes it m ust find t hat t his issue has been decided by t he Tent h Circuit . The m aj orit y concluded t hat “ t he dam ages at issue here sat isfy t he Policy’s accident al requirem ent .” 882 F.3d at 962. To reach t hat conclusion, t he panel squarely addressed t he requirem ent s of “ unexpect ed and unint ent ional” dam ages and “ fort uit y,” and it even cit ed Consolidat ed Edison: The Policy does not define “ accident ,” but t he New York Court of Appeals has explained t hat a CGL policy covers dam ages only when t hey were “ unexpect ed and unint ent ional.” Cont 'l Cas. Co., 593 N.Y.S.2d 966, 609 N.E.2d at 510 ( holding t hat t hese t erm s are t o be const rued narrowly as barring coverage “ only when t he insured int ended t he dam ages” ) ; see also Consol. Edison Co. of N.Y. v. Allst at e I ns. Co., 98 N.Y.2d 208, 746 N.Y.S.2d 622, 774 N.E.2d 687, 692 ( 2002) ( “ I nsurance policies generally require ‘fort uit y’ and t hus im plicit ly exclude coverage for int ended or expect ed harm s.” ) . A policyholder m ight t ake a “ calculat ed risk” —such as hiring a subcont ract or—wit hout “ expect ing” dam ages t o occur. See Cont 'l Cas. Co., 593 N.Y.S.2d 966, 609 N.E.2d at 510. “ [ I ] n fact , people oft en seek insurance for j ust such circum st ances.” I d. Whet her or not B&V t ook a “ calculat ed risk” by delegat ing work on t he JBRs t o a subcont ract or, Aspen does not argue—nor does t he record support —t hat B&V “ expect ed or int ended” MTI or any ot her subcont ract or t o cause dam age. Nor is t here evidence t hat B&V increased t he likelihood of such dam ages t hrough reckless cost - saving or ot her m easures. See Fuller, 613 N.Y.S.2d at 155 ( finding no “ occurrence” where dam ages arose from “ int ent ional cost - saving or negligent act s” ) . Thus, t he dam ages at issue here sat isfy t he Policy's accident al requirem ent . 22 882 F.3d at 962- 63. The law of t he case doct rine forecloses t his court from deciding t his issue on rem and. Replacing Good Product s t o “ Get t o” Dam aged Product s is not Physical I nj ury Aspen denies t here is coverage “ for cost s t o rem ove nondefect ive product s t o access defect ive product s and/ or t he ‘propert y dam age’ result ing from t he replacem ent of defect ive product .” ECF# 342, p. 45. Aspen not es t hese are called “ get t o” or “ access” dam ages but denies t hat t hey const it ut e “ physical inj ury” or “ propert y dam age.” I d. Aft er cit ing and discussing case law from ot her j urisdict ions, Aspen asks t he court t o find “ t hat t he rem oval of t he conform ing com ponent s is not covered, and t he replacem ent m at erials and rebuild cost s are not covered eit her.” I d. at p. 46- 47. Again, t he Tent h Circuit ’s ruling on “ propert y dam age” is t he law of t he case, and it prevent s t his court from considering yet anot her at t em pt by Aspen t o get around t he m aj orit y’s conclusions. The court also refers t o it s prior discussion of New York law on t he incorporat ion t heory which holds t hat an inj ury occurs when a defect ive com ponent is int egrat ed int o a larger product and which allows for t he recovery of various dam ages. Warrant y Claim s are not Covered “ Propert y Dam ages” Aspen argues t hat B&V is m aking a claim “ for t he expense of m aking warrant y repairs” and t hat t his expense is not “ any ‘physical inj ury’” t o be covered as “ propert y dam age” under t his policy. ECF# 343, p. 47. B&V 23 responds t hat Aspen’s labels and charact erizat ions do not change t hat t hey were for cost s which B&V was legally obligat ed t o pay as repairs for propert y dam age. The Tent h Circuit ’s ruling on “ propert y dam age” is t he law of t he case. This court is not at libert y t o ent ert ain yet anot her at t em pt t o argue t he case law from lower New York court s which t he Tent h Circuit has already dist inguished and rej ect ed in predict ing what t he New York Court of Appeals would hold t o be an occurrence under t his CGL policy. The Tent h Circuit unquest ionably concluded t hat , “ Under t he Policy, t he dam ages at issue here were caused by a coverage- t riggering ‘occurrence.’” 882 F.3d at 971. Under t his heading, Aspen also m akes an argum ent legally unrelat ed t o t he issue of “ propert y dam age.” Specifically, Aspen cont ends t hat B&V set t led wit h AEP t hrough a credit of $14.3 m illion in “ backcharges” on Cardinal 1 and 2 before Aspen received not ice of B&V’s claim from B&V’s London broker. According t o Aspen, t hese circum st ances m ake B&V’s set t lem ent a volunt ary paym ent under New York law and subj ect t o coverage denial in t hat t he paym ent was m ade before t he insurer was not ified. B&V denies accept ing liabilit y wit hout first providing not ice t o Aspen and furt her shows t here are genuine issues of m at erial fact concerning t his issue. While t here m ay be evidence t hat AEP had charges for work done on Cardinal 1 and 2 as of July 30, 2009, t he part ies’ subm issions show a genuine issue of m at erial fact rem ains over whet her B&V volunt arily paid or 24 assum ed t hose charges wit hout first not ifying or obt aining Aspen’s consent . Aspen is not ent it led t o sum m ary j udgm ent on t hese issues. EXCLUSI ONS Aspen’s m ot ion put s forward four exclusions as barring coverage for all or part of t he claim present ed for t he com plet ed and uncom plet ed plant s. Aspen not es t he Tent h Circuit rem anded t he case wit h inst ruct ions for t his court t o det erm ine “ t he effect of any Policy exclusions or except ions t o t he exclusions.” 882 F.3d at 957 n.6. I nt ent ional Act s Exclusion A provides t hat t he policy does not apply t o “ ’Propert y Dam age’ expect ed or int ended from t he st andpoint of t he ‘I nsured.’” ECF# 284- 1, p. 14. Aspen argues t hat B&V cannot recover for t he cost s associat ed wit h purposefully dem olishing and harm ing ot her non- defect ive int ernal com ponent s t o gain access, rem ove and replace t he defect ive risers. Because B&V act ed int ent ionally t o cause t hese dam ages, Aspen argues t hey are excluded in t he sam e way t hat “ get t o” dam ages are excluded. B&V argues t his exclusion is foreclosed by t he Tent h Circuit ’s following finding of accident al dam ages. Specifically, t he appellat e panel found: Whet her or not B&V t ook a “ calculat ed risk” by delegat ing work on t he JBRs t o a subcont ract or, Aspen does not argue—nor does t he record support —t hat B&V “ expect ed or int ended” MTI or any ot her subcont ract or t o cause dam age. Nor is t here evidence t hat B&V increased t he likelihood of such dam ages t hrough reckless cost - saving 25 or ot her m easures. See Fuller, 613 N.Y.S.2d at 155 ( finding no “ occurrence” where dam ages arose from “ int ent ional cost - saving or negligent act s” ) . Thus, t he dam ages at issue here sat isfy t he Policy's accident al requirem ent . 882 F.3d at 962- 963 ( foot not e om it t ed) . B&V argues t he Tent h Circuit ’s ruling by necessary im plicat ion forecloses t he possibilit y of t his exclusion. I n reply, Aspen argues t he Tent h Circuit ’s ruling does not address B&V’s deliberat e decisions t o “ rip out and replace” t he non- defect ive com ponent s. Because B&V, as t he insured, expect ed or int ended t hese result ing dam ages from it s deliberat e act ions, Aspen insist s t his exclusion bars all recovery of t he “ get t o” dam ages. The court has discussed when an appellat e court ’s ruling by necessary im plicat ion const it ut es a decision of an issue on rem and. The Tent h Circuit here did reserve for rem and t he t rial court ’s considerat ion of exclusions and except ions. St ill, t he quest ion is whet her t he panel’s findings of an occurrence and accident al dam ages, as not “ expect ed or int ended” by B&V, are so closely relat ed t o t he int ent ional act exclusion as t o involve no addit ional considerat ion and as t o be a m at t er t hat could have been resolved on appeal. See Dobbs, 600 F.3d at 1280. The Policy’s definit ion of “ occurrence” is “ an accident , . . ., t hat result s in ‘Bodily I nj ury’ or ‘Propert y Dam age’ t hat is not expect ed or not int ended by t he ‘I nsured.’” ECF# 284- 1, p. 10 ( it alics added) . The it alicized language is indist inguishable from Exclusion A’s t erm s excluding coverage for “ ’Propert y Dam age’ expect ed or int ended from t he st andpoint of t he 26 ‘I nsured’.” ECF# 284- 1, p. 14. Bot h require t he sam e det erm inat ion: what dam ages did t he insured expect or int end? The Tent h Circuit expressly found t hat t he propert y dam ages here “ were caused by an ‘occurrence,’ as t hat t erm is defined in t he Policy, because ( 1) B&V neit her int ended nor expect ed t hat it s subcont ract or would perform fault y work, so t he dam ages were accident al.” 882 F.3d at 965. The operat ion of Exclusion A is indist inguishable from t he Policy’s definit ion of occurrence. New York case law applies t he sam e analysis t o t he accident al charact er issue and t he int ent ional exclusion issue and considers t he ruling on one issue as det erm inat ive of t he ot her: But court s const ruing sim ilar policy exclusions have concluded t hat t he analysis applicable t o t he quest ion whet her a loss was accident al is t he sam e as t hat conduct ed in analyzing t he effect of t he exclusion. See, e.g., O'Connell v. St at e Farm Fire & Cas. Co., No. 03- CV- 880, 2005 WL 1576793, at * 4 ( W.D.N.Y. July 1, 2005) ( “ Alt hough t he first disclaim er denies t he exist ence of coverage in t he first inst ance, while t he second relies upon an [ int ent ional act ] exclusion [ disclaim ing coverage for inj ury expect ed or int ended by t he insured] , t he analysis is t he sam e because t he exclusion is ‘not hing m ore t han a rest at em ent of t he requirem ent t hat t he harm be t he result of an accident for t here t o be coverage.’” ( quot ing Jubin [ v. St . Paul Fire and Marine I ns. Co.,] 653 N.Y.S.2d [ 454] at 455 [ ( N.Y. App. Div. 1997) ] ) , adopt ed by 2005 WL 2133600 ( W.D.N.Y. Aug. 31, 2005) ; see also 1 M. Jane Goode, Law & Pract ice of I nsurance Coverage Lit igat ion § 6: 20 ( 2017) ( “ Many liabilit y policy form s cont ain exclusions for bodily inj ury ‘which is expect ed or int ended by t he insured.’ ... Not surprisingly, t he court s t end t o use subst ant ially t he sam e approach in int erpret ing t he exclusion as t hey have in int erpret ing t he sam e or sim ilar t erm s cont ained in t he definit ion of occurrence. I ndeed, it is som et im es im possible t o det erm ine whet her a court has based it s decision concerning coverage on t he exist ence or nonexist ence of an occurrence or on applicat ion of an int ent ional inj ury exclusion.” ( foot not es om it t ed) ) . 27 Since t he Court holds t hat t he Schillaci Com plaint alleged an occurrence under t he Hom eowners Policy, Met P&C cannot rely on t he int ent ional act exclusion t o disclaim coverage. See 670 Apart m ent s Corp. [ v. Agricult ural I ns. Co.,] 1996 WL 559942, at * 5 n.3 [ S.D.N.Y. Oct . 2, 19960] ( concluding t hat , because t he underlying com plaint alleged a covered occurrence even t hough t he insured received warnings about pot ent ial harm s result ing from it s conduct before com m encem ent of t he underlying lawsuit , t he policy’s int ent ional loss exclusion did not bar coverage) . Met ro. Prop. and Cas. I ns. Co. v. Sarris, 2017 WL 3252812, at * 10–* 11 ( N.D.N.Y. July 28, 2017) , appeal wit hdrawn, 2017 WL 5714502 ( 2d Cir. Sept . 19, 2017) . Thus, t he court finds it self again applying t he law of t he case doct rine, but t his t im e by necessary im plicat ion. Aspen’s Exclusion A is foreclosed by t he Tent h Circuit ’s finding of an “ occurrence.” Your Product Exclusion E st at es t hat t he policy does not apply t o, “ ’Propert y Dam age’ t o ‘Your Product ’, arising out of it or any part of it .” ECF# 284- 1, p. 14. Aspen argues t his exclusion prevent s coverage because B&V’s claim is seeks dam ages for having supplied an insufficient product and for having replaced “ com ponent s at any uncom plet ed plant s.” ECF# 342, p. 50. Aspen cit es t he unpublished and brief decision of Tradin Organics USA, I nc. v. Maryland Cas. Co., 325 Fed. Appx. 10 ( 2nd Cir. Apr. 16, 2009) . I n a single paragraph which does not describe t he defect or t he product , t he court applies t he “ Your product ” exclusion sum m arily concluding t hat “ Tradin’s claim was based on dam age t o Tradin’s product —a risk specifically excluded by t he “ Your Product ” provision.” 325 Fed. Appx. at 11. 28 The Second Circuit panel in Tradin Organics, however, cit ed and relied upon Lowville Producer’s Dairy Co- op., I nc. v. Am erican Mot orist I ns. Co., 198 A.D.2d 851, 604 N.Y.S.2d 421, 422- 23 ( N.Y. App. Div. 1993) . I n t hat decision, t he court applied t he product exclusion and denied coverage for t he loss of cont am inat ed m ilk t hat t he plaint iff insured, a cooperat ive associat ion of dairy farm ers, had supplied t o a cheese m anufact uring plant , but it allowed coverage for t he cost of rem oving and disposing t he cont am inat ed m ilk from t he purchaser’s silo. “ The policy was clearly int ended t o cover t he possibilit y t hat t he insured’s product , once sold, would cause bodily inj ury or dam age t o propert y ot her t han t he product it self.” I d. at 423 ( cit at ions om it t ed) . See Hart og Rahal Part nership v. Am erican Mot orist s I ns. Co., 359 F. Supp. 2d 331, 332- 22 ( S.D.N.Y. 2005) ; Federal I ns. Co. v. Marlyn Nut raceut icals, I nc., 2013 WL 6796162, at * 8 ( E.D.N.Y. Dec. 19, 2013) ( “ Where, as here, t he dam age is t o t he insured's propert y, which was not incorporat ed int o any larger ent it y, court s have found t hat exclusions such as t he ‘your product ’ exclusion in t he Policy defeat any dut y t o defend.” ( cit at ions om it t ed) ) . B&V denies it s claim is based on a defect ive product but rat her is based on it s const ruct ion proj ect which const it ut es real propert y. B&V refers t o t he policy’s definit ion of “ Your Product ” as “ any goods or product s, ot her t han real propert y, m anufact ured, sold, handled, dist ribut ed or disposed of by” insured. ECF# 284- 1, p. 11. The JBRs are “ m assive, 29 perm anent fixt ures t hat const it ut e ‘real propert y.’” ECF# 345, p. 77 ( cit ing Scot t C. Turner, I nsurance Coverage of Const ruct ion Disput es, § 27: 8 ( 2d ed. 2015) . B&V cont ends t hat if t his exclusion covered all propert y dam age arising out of it s const ruct ion proj ect , t hen t he Policy would be ineffect ive in m eet ing what t he Tent h Circuit said was B&V’s “ m ain reason for obt aining CGL insurance . . . t he pot ent ial for claim s alleging dam ages m ade by t he propert y owner—AEP.” 882 F.3d at 964. B&V argues a “ com m on sense reading” of t he exclusion m akes it inapplicable. I n reply, Aspen argues for t his being a product claim because t he risers were insufficient as m anufact ured. Aspen adds t hat because t he risers’ insufficiency did not change wit h t heir inst allat ion, so B&V’s claim should not change in nat ure eit her. “ To negat e coverage by virt ue of an exclusion, an insurer m ust est ablish t hat t he exclusion is st at ed in clear and unm ist akable language, is subj ect t o no ot her reasonable int erpret at ion, and applies in t he part icular case.” Cont inent al Cas. C. v. Rapid- Am erican Corp., 80 N.Y.2d 640, 652, 609 N.E.2d 506 ( 1993) . Aspen has not carried it s burden. The definit ion of “ Your Product ” excludes real propert y. The general rule for t his exclusion is t hat , “ [ t ] he work perform ed by cont ract ors on dwellings, buildings, st ruct ures, and any ot her form of realt y is t herefore not considered t o be t he product of t he insured.” 9A St even Plit t , et al., Couch on I ns. § 129: 20 ( 3rd ed. 2018 updat e) . Aspen has not shown t hat B&V’s work in m anaging and direct ing 30 t he const ruct ion of t he JBRs result s in a product rat her t han services relat ed t o real propert y. I t seem s t his exclusion “ was always int ended by t he insurers and brokers t o apply t o m anufact uring t hat produces ‘product s’ rat her t han com panies like cont ract ors, subcont ract ors, and const ruct ion m anagers t hat perform services.” Scot t C. Turner I nsurance Coverage of Const ruct ion Disput es § 27: 8 ( 2d ed. Nov. 2018 updat e) ( cit at ions and aut horit ies om it t ed) . By except ing “ real propert y” from t he definit ion of “ your product ,” “ const ruct ion work of a cont ract or is not ‘your product ’.” I d. As for a product t hat is built int o a st ruct ure, t he general rule is: What would ot herwise be an insured m anufact urer's product , or an insured m at erial supplier's product , m ay lose t hat designat ion once it is incorporat ed int o a building proj ect if it t hereby becom es real propert y under t hat j urisdict ion's law of fixt ures. I n such cases, if propert y dam age t o it occurs aft er being built int o t he proj ect , it no longer fit s wit hin t he definit ion of “ your product ,” so t he exclusion should not apply. I d. at § 27: 10. Case law support ing t his rule includes, Travelers Propert y Casualt y Com pany of Am erica v. Nort hwest Pipe Com pany, 2017 WL 2687652, at * 1 ( W.D. Wash. Jun. 22, 2017) , which involved a claim of dam ages suffered “ in t he const ruct ion of a large wat er pipeline” and caused by “ t he alleged failure of circum ferent ial welds t hat were being used t o at t ach grout plugs t o a large st eel pipe liner.” The court sim ilarly quot ed t his t reat ise and not ed: The Nint h Circuit has relied upon t his rule, albeit in an unpublished decision. Mid- Cont inent Cas. Co. v. Tit an Const . Corp., 281 Fed.Appx. 766, 768–69 ( 9t h Cir. 2008) ( quot ing Black’s Law Dict ionary, 1254 ( 8t h ed. 2004) ) ( “ Since ‘real propert y’ is not defined in t he CGL, we 31 adopt t he com m on m eaning of t he t erm , ‘land and anyt hing growing on, at t ached t o, or erect ed on it , excluding anyt hing t hat m ay be severed wit hout inj ury t o t he land.’” ) . Ot her court s have likewise reached t he sam e conclusion. See Scot t sdale I ns. Co. v. Tri- St at e I ns. Co. of MN., 302 F. Supp. 2d 1100, 1104–08 ( D.N.D. 2004) . Travelers Prop. Cas. Co. of Am ., 2017 WL 2687652, at * 7. The court t hen looked t o whet her t he st eel liner m et t he crit eria for a fixt ure under st at e law: Upon inst allat ion of t he grout plugs, t he st eel liner was cem ent ed int o t he underground Twin Tunnels proj ect . Dkt . 30 at 2. This est ablishes t hat t he st eel liner was sufficient ly annexed t o t he realt y t o sat isfy t he first prong of t he fixt ure crit eria. Addit ionally, t here is no disput e t hat t he st eel liner was applied t o t he purpose of t he Twin Tunnels proj ect for which t he port ion of realt y is appropriat ed. See Dkt . 30; Dkt . 18- 12 at 5. Finally, t he underlying com plaint by t he Wat er Dist rict st at es t hat t he st eel liner was “ inst alled at t he ends of each of t he t unnels as a perm anent lining ... t hat prevent s wat er from t ravelling int o or out of t he t unnels,” t hereby est ablishing t he t hird prong of t he fixt ure crit eria. Dkt . 18- 12 at 5 ( em phasis added) . Pursuant t o t his analysis, t he st eel liner is real propert y, or at least it was real propert y at t he t im e t hat t he alleged defect s result ed in t he failure of t he circum ferent ial welds. Travelers Prop. Cas. Co. of Am . v. N.W. Pipe Co., 2017 WL 2687652, at * 7. This approach cert ainly seem s consonant wit h t he CGL policy at issue here, wit h t he allegat ion here of inj ury occurring wit h t he risers’ inst allat ion, and wit h New York law. New York law on t he crit eria of a fixt ure m at ches t he law applied in Travelers Prop.: “ To m eet t he com m on- law definit ion of fixt ure, t he personalt y in quest ion m ust : ( 1) be act ually annexed t o real propert y or som et hing appurt enant t heret o; ( 2) be applied t o t he use or purpose t o which t hat part of t he realt y wit h which it is connect ed is appropriat ed; and, 32 ( 3) be int ended by t he part ies as a perm anent accession t o t he freehold.” Mat t er of Met rom edia, I nc. ( Fost er & Kleiser Div.) v. Tax Com m n. of Cit y of N.Y., 60 N.Y.2d 85, 90, 455 N.E.2d 1252 ( 1983) ( cit at ions om it t ed) . The part ies have not em ployed t his t est , ident ified t hese fixt ure crit eria, or present ed t he fact s necessary for det erm ining t his exclusion. Based on t he sum m ary j udgm ent record t o dat e, t he risers would appear t o m eet t his fixt ure definit ion. Because “ real propert y” is expressly elim inat ed from t he definit ion of “ Your Product ,” t he defendant Aspen is not ent it led t o sum m ary j udgm ent on t his exclusion as argued in it s original m em orandum , ECF# 342. I m paired Propert y Exclusion G st at es t hat t he policy does not apply t o: “ Propert y Dam age t o “ I m paired Propert y” or propert y t hat has not been physically inj ured arising out of: ( 1) a defect , deficiency, inadequacy or dangerous condit ion in “ Your Product ’ or ‘Your Work’; or ( 2) a delay or failure by you or anyone act ing on your behalf t o perform a cont ract or agreem ent in accordance wit h it s t erm s.” This Exclusion G does not apply t o t he loss of use of ot her propert y arising out of sudden and accident al physical inj ury t o “ Your Product ” or “ Your Work aft er it has been put t o it s int ended use. ECF# 284- 1, p. 14. The Policy defines “ I m paired Propert y” in t his way: “ I m paired Propert y” m eans t angible propert y, ot her t han “ Your Product ” , or “ Your Work” , t hat ( 1) cannot be used or is less useful because: ( a) it incorporat es “ Your Product ” or “ Your Work” t hat is known or t hought t o be defect ive, deficient , inadequat e, or dangerous; or ( b) you have failed t o fulfill t he t erm s of a cont ract or agreem ent ; and 33 ( 2) can be rest ored t o use by: ( a) t he repair, replacem ent , adj ust m ent , or rem oval of “ Your Product ” or “ Your Work” ; or ( b) your fulfillm ent of t he t erm s of such cont ract or agreem ent . ECF# 284- 1, p. 9. Aspen argues t hat , “ [ a] ny non- dam aged product is eit her ‘I m paired Propert y’ ( as defined above) or ‘propert y which has not been physically inj ured’ and is t herefore excluded under t he ‘I m paired Propert y’ exclusion.” ECF# 342, p. 52. Aspen also not es t hat t he exclusion’s except ion for propert y put t o it s int ended use “ does not apply t o t he four uncom plet ed plant s” because t hey were not used. I d. Aspen want s t his exclusion t o bar all coverage for replacem ent dam ages, “ because t he rem oval of undam aged product was caused by a defect in t he risers.” I d. Aspen em phasizes t hat t his exclusion operat es whet her t he defect ive w ork was done by a subcont ract or or not , cit ing Pavarini Const r. Co., I nc. v. Cont inent al I ns. Co., 304 App. Div. 2d 501, 759 N.Y.S.2d 56 ( 2003) . As aut horit y for t his exclusion’s applicabilit y, Aspen relies on t wo unpublished decisions: Big- D Const r. Midwest , LLC v. Zurich Am . I ns. Co., 2018 WL 3025066 ( D. Ut ah Jun. 18, 2018) , correct ed and superseded by, 2018 WL 3849923 ( D. Ut ah Aug. 13, 2018) ; and Accept ance I ns. Co. v. Ross Cont ract ors, I nc., 2008 WL 2796593 ( Minn. App. Jul. 22, 2008) , rev. denied, ( Oct . 1, 2008) . B&V first sum m arily argues t he exclusion does not apply because t he propert y dam aged was t he JBRs which is B&V’s work, and “ I m paired Propert y” is defined above as “ t angible propert y, ot her t han . . . ‘Your 34 Work.’” ECF# 284- 1, p. 9. B&V st ring cit es aut horit ies showing t he agreem ent bet ween com m ent at ors and court s, “ t hat where non- defect ive work or propert y m ust be dam aged t o rem ove defect ive propert y, t he im paired propert y exclusion does not apply.” ECF# 345, p. 78. B&V dist inguishes Pavarini as involving a different policy wit h an unknown definit ion of “ I m paired Propert y.” Finally, B&V point s out t hat t he broad applicat ion of t his exclusion m eans, “ several policy provisions would be rendered superfluous—a prohibit ed result under t he Tent h Circuit ’s reasoning.” I d. at p. 79. I n reply, Aspen goes t hrough several of t he B&V’s cit at ions denying t hey discussed t he “ im paired propert y” exclusion and dist inguishing anot her on t he fact s. Aspen argues for following Travelers Cas. & Suret y Co. v. Dorm it ory Aut horit y St at e of N.Y., 732 F. Supp. 2d 347, 366 ( S.D.N.Y. 2010) ; I sland Lat hing & Plast ering v. Travelers I ndem . Co., 161 F. Supp. 2d 278 ( S.D.N.Y. 2001) . Aspen m aint ains, “ New York cases apply t he ‘im paired propert y’ exclusion t o t he non- dam aged part s of all JBRs which were required t o be rem oved and replaced because of t he defect ive com ponent s.” ECF# 348, p. 23. Looking first at Aspen’s cit at ions, t he court agrees t hat t he Pavarini lacks sufficient det ails for it t o be applied here correct ly. The unpublished decision in Big- D Const ruct ion involved Ut ah and Minnesot a law , and it s analysis does not address how t hese provisions are t ypically read and 35 applied. The Minnesot a Court of Appeals in Accept ance addresses t he “ im paired propert y” exclusion not ing first : The reach of exclusion m is difficult t o det erm ine. Because it is part of a st andard, insurance- indust ry- wide policy provision, t here is caselaw from ot her j urisdict ions and secondary com m ent ary sum m arizing t hat caselaw and analyzing t he exclusion. See, e g., 4 Philip L. Bruner & Pat rick J. O'Connor, Bruner and O'Connor on Const ruct ion Law § 11.49, at 166- 74 ( 2002) ; 2 Allan Windt , I nsurance Claim s and Disput es: Represent at ion of I nsurance Com panies and I nsureds § 11.21, at 530- 31 ( 4t h ed.2001) ; 3 Robert J. Franco, I nsurance Coverage for Fault y Workm anship Claim s under Com m ercial General Liabilit y Policies, 30 Tort & I ns. Law J. 785, 800- 02 ( 1995) . Bruner and O'Connor cit e ot her com m ent at ors and court s expressing frust rat ion wit h t he com plexit y of exclusion m , it s unt oward reach, and it s lim it ed act ual applicat ion. See 4 Bruner & O'Connor, supra, § 11.49, at 16975. We recognize t his confusion. We not e t hat “ [ i] f policy language is am biguous, it m ust be int erpret ed in favor of coverage [ and t hat policy] exclusions are read narrowly against t he insurer.” . . . . . . . The pot ent ial scope of exclusion m is breat ht aking; it could vit iat e t he insuring clause of t he policy and elim inat e all coverage. This clash bet ween t he possible broad scope of t he exclusion and t he int ended coverage creat es an am biguit y in t he m eaning of t he exclusion. Accept ance does not argue for t his broad effect of exclusion m . I nst ead, Accept ance assert s t hat because t he loss- of- profit dam ages are t ied t o cont ract claim s, exclusion m only elim inat es loss of profit s as an elem ent of dam ages. However, coverage here was based on t he negligence, not t he breach of cont ract . . . . We adopt t he sam e reasoning t o conclude t hat exclusion m does not preclude coverage and recovery by Nolan for lost profit s. Accept ance I ns. Co. v. Ross Cont ract ors, I nc., 2008 WL 2796593, at * 11- 12. ( Minn. App. July 22, 2008) . I nt erest ingly, Accept ance support s reading t his com plex and am biguous exclusion in favor of t he insured, in keeping wit h t he exclusion’s narrow purpose, and in furt herance of preserving t he policy’s basic coverage t erm s. Aspen’s reply also overst at es it s posit ion in arguing t hat it s t wo “ New York cases” show t hat New York law reads t his exclusion 36 m ore broadly t han argued by B&V. First , Travelers Cas. and Suret y Co., applied New Jersey law. Second, I sland Lat hing & Plast ering, reads and applies t he exclusion sum m arily as an alt ernat ive ground for finding t he insurer had no dut y t o defend, 161 F. Supp. 2d at 288- 89. The “ im paired propert y” exclusion, as t he Minnesot a Court of Appeals not ed above, is com plex and vulnerable t o expansive readings t hat “ could vit iat e t he insuring clause.” 2008 WL 2796593, at * 11. “ To negat e coverage by virt ue of an exclusion, an insurer m ust est ablish t hat t he exclusion is st at ed in clear and unm ist akable language, is subj ect t o no ot her reasonable int erpret at ion, and applies in t he part icular case.” Village of Sylvan Beach, N.Y. v. Travelers I ndem . Co., 55 F.3d 114, 115- 16 ( 2nd Cir. 1995) ( int ernal quot at ion m arks and cit at ion om it t ed) . Not only has Aspen not carried t his burden, but it seeks t o apply t his exclusion against t he rem oval and replacem ent cost s for non- dam aged part s which is beyond t he int ended purpose of t his exclusion. The court ’s applicat ion of t his exclusion is inst ruct ed by t he hist ory and purpose of t his exclusion and by how m ost court s have const rued and applied it : The concept of “ im paired propert y” first surfaced in 1986. Before t hat t im e, however, t he st andard CGL policy cont ained an exclusion int ended t o address claim s t hat losses were incurred as a result of t he insured’s failure t o perform it s obligat ions. Exclusion m of t he 1973 CGL form , known as t he “ failure t o perform ” exclusion, precluded coverage for loss of use dam ages where no physical inj ury was present result ing from : ( 1) a delay in or lack of perform ance by t he insured or ( 2) t he failure of t he insured’s product s or work t o m eet a level of 37 perform ance, qualit y, fit ness or durabilit y warrant ed or represent ed by t he insured. The 1973 “ failure t o perform ” exclusion addresses t he “ loss of use” aspect of “ propert y dam age.” . . . . . . . . Given t he int erpret at ion challenges posed by t he 1973 form exclusion, m any hoped t hat t he revisions t o t he exclusion would provide a clearer pict ure. Unfort unat ely, t he exclusion has not becom e sim pler. The int roduct ion of t he concept of “ im paired propert y” has creat ed a new set of challenges. Com m ent at ors have opined t hat t he new exclusion is “ t oo com plex t o receive a uniform int erpret at ion.” Ot hers have found t he new exclusion t o be “ t ricky.” One com m ent at or has gone so far as t o conclude t hat t he exclusion is subj ect t o at t ack as “ unint elligible or at least ineffect ive t o overcom e t he insured’s reasonable expect at ions of coverage.” . . . . The “ im paired propert y” exclusion applies t o t wo classes of propert y. The first , “ im paired propert y” m eans t angible propert y, ot her t han “ your product ” or “ your work,” t hat cannot be used or is less useful because your defect ive work has been incorporat ed int o it where such propert y can be rest ored t hrough t he repair or replacem ent of your work. The second class of propert y is “ t hat [ which] has not been physically inj ured. Therefore, if t here is physical inj ury t o t angible propert y, t he second class of propert y im plicat ed by t he im paired propert y exclusion does not com e int o play. “ I m paired propert y” denot es propert y t hat is different from t he insured’s work. I n t he norm al case, t he exclusion would have no applicat ion where t he dam age, including t he loss of use, occurs t o t he const ruct ion perform ed by t he insured or it s subcont ract ors. I n addit ion t o not applying where usefulness m ay not be rest ored by t he repair of t he insured’s work, court s have held t he exclusion inapplicable where t he repair or replacem ent of t he insured’s work would cause physical inj ury t o ot her propert y. 4 Pt . 2 Philip L. Bruner and Pat rick J. O’Connor, Jr., Bruner and O’Connor on Const ruct ion Law § 11: 264 ( 2018) ( foot not es and cit at ions om it t ed) ; see also 9 No. 2 Lee H. Shidlofsky, Journal of t he Am erican College of Const ruct ion Lawyers ( Aug. 2015) ; see generally 9A St even Plit t , et al., Couch on I nsurance Third Edit ion § 129.23 ( 2018) ( foot not es and cit at ions 38 om it t ed) ; see, e.g., Maryland Casualt y Co. v. Mid- Cont inent Casualt y Co., 725 Fed. Appx. 699, 711 ( 10t h Cir. Mar. 20, 2016) ( exclusion did not reach dam age claim s ot her t han loss of use of personal propert y) ; St andard Fire I ns. Co. v. Chest er O’Donley & Associat es, I nc., 972 S.W.2d 1, 10 ( Tenn. Ct . App. 1998) ( “ The effect of t he ‘im paired propert y’ exclusion is t o bar coverage for loss of use claim s . . . when t here has been no physical inj ury t o propert y ot her t han t he insured’s work it self. The exclusion does not apply . . . if t he insured’s work cannot be repaired or replaced wit hout causing physical inj ury t o ot her propert y.” ( cit at ions om it t ed) ) , appeal denied, ( Jul. 6, 1998) . Owing in large part t o t he com plex and am biguous t erm s em ployed in t his exclusion, Aspen’s applicat ion of it here lacks clarit y. Aspen t akes t he general posit ion t hat , “ [ a] ny non- dam aged product is eit her ‘I m paired Propert y’ ( as defined above) or ‘propert y which has not been physically inj ured’ and is t herefore excluded under t he ‘I m paired Propert y’ exclusion ( assum ing t hat t he replacem ent of such non- dam aged product even involves ‘physical harm ’ t o t he propert y of a t hird part y) .” ECF# 342, p. 52. Aspen, however, fails t o show how any of t he JBRs’ “ non- dam aged propert y” is “ t angible propert y ot her t han . . . [ B&V’s] ‘Your Work’ . . . .” ECF# 284- 1, p. 9 ( Definit ion of “ I m paired Propert y” ) . The policy defines “ Your Work,” t o be B&V’s “ work or operat ions perform ed by” B&V or on behalf of B&V. ECF# 284- 1, p. 12. Thus, Aspen fails t o show t hat t he first 39 class of propert y covered by t his exclusion, “ I m paired Propert y,” m eaning t angible propert y ot her t han “ Your Work,” is involved here. See Scot t C. Turner, I nsurance Coverage of Const ruct ion Disput es § 26.7 ( 2018) ( “ The work of a general cont ract or qualifies as it s ‘your work’ such t hat it cannot be ‘im paired propert y,’ so t he exclusion cannot apply.” ) ; see, e.g., Archer W. Cont ract ors, LTD v. Libert y Mut ual Fire I ns. Co., 2015 WL 11004493, at * 7 ( C.D. Cal. Mar. 31, 2015) , ( “ Because all of t he dam ages alleged were t o m at erials, part s, or equipm ent built or furnished by AWC, and AWC had expansive responsibilit y for t he Proj ect , t he dam ages are t herefore encom passed by t he ‘Your Product or Your Work’ except ion t o t he I m paired Propert y definit ion, and do not const it ut e I m paired Propert y under t he m eaning of t he Nat ional Union Policy.” ) , aff'd sub nom ., Archer W. Cont ract ors, Lt d. v. Nat ional Union Fire I ns. Co. of Pit t sburgh, Pennsylvania, 680 Fed. Appx. 604 ( 9t h Cir. 2017) ( unpub.) ; Durbrow v. Mike Check Builders, I nc., 442 F. Supp. 2d 676, 684 ( E.D. Wis. 2006) ( I nsured’s const ruct ion of t he whole house was it s work, so exclusion does not apply) . Aspen also argues t he exclusion applies here t o t he second class of propert y, t hat is, “ propert y t hat has not been physically inj ured arising out of: ( 1) a defect , deficiency, inadequacy or dangerous condit ion in ‘Your Product ’ or ‘Your Work.’” ECF# 284- 1, p. 14. Aspen applies t he exclusion saying, “ t he JBR replacem ent claim is excluded in it s ent iret y because t he rem oval of undam aged product was caused by a defect in t he risers. That is 40 exact ly t he nat ure of t he claim being m ade here.” ECF# 342, p. 52. Again, Aspen’s argum ent runs up against t he act ual wording and t he general m eaning of t his exclusion. First , t he wording of t he exclusion act ually says t here is no coverage for propert y dam age t o propert y “ t hat has not been physically inj ured arising out of” a defect in “ Your Work.” ECF# 284- 1, p. 14. I n arguing t he rem oval ( t he dam age) of t he undam aged product was caused by a defect in t he risers, Aspen appears t o be showing t he physical inj ury here did arise out of a defect in B&V’s “ work or operat ions by . . . [ it ] or on [ it s] . . . behalf.” ECF# 284- 1, p. 12 ( Definit ion of “ Your Work” ) . Aspen’s applicat ion does not m at ch t he m eaning of t his exclusion which is t o bar “ coverage for loss of us of t angible propert y of ot hers t hat is not physically dam aged by t he insured’s defect ive product .” Am erica Online, I nc. v. St . Paul Mercury I ns. Co., 347 F.3d 89, 98 ( 4t h Cir. 2003) ( “ This exclusion places a lim it at ion on t he coverage of consequent ial dam ages, rest rict ing coverage t o loss of use of ot her persons’ propert ies t hat are physically dam aged.” ) . Second, t his exclusion does not apply “ if t he insured’s work cannot be repaired or replaced wit hout causing physical inj ury t o t he ot her propert y.” 9A St even Plit t , Couch on I nsurance Third Edit ion § 129.23 ( 2018) . When t he fixing of fault y com ponent s result s in t he dest ruct ion and replacem ent of ot her com ponent s, t he fix it self “ necessit at ed inj ury t o t angible propert y, and t he inj ury was unquest ionably physical.” U.S. Met al, I nc. v. Libert y Mut ual Group, I nc., 490 S.W.3d 20, 28 ( Tex. 2015) , reh’g denied, ( Jun. 17, 41 2016) . “ This exclusion should not apply t o elim inat e coverage where t he incorporat ion of t he defect ive work or product does no act ual physical dam age t o t angible propert y but t he rem oval or repair of t hat work or product has or will physically inj ury ot her propert y.” Scot t C. Turner, I nsurance Coverage of Const ruct ion Disput es § 26: 19 ( 2019) ( cit ing in part , DeWit t Const r. I nc. v. Chart er Oak Fire I ns. Co., 307 F.3d 1127, 1135 ( 9t h Cir. 2002) , as am ended on denial of reh’g and reh’g en banc ( Dec. 4, 2002) ; Nort h St ar Mut . I ns. Co. v. Rose, 27 F. Supp. 3d 1250, 1254 ( E.D. Okla. 2014) ) . Aspen has not carried it s burden in showing t his exclusion bars coverage for B&V’s propert y dam ages incurred in rem oving, inj uring or dest roying ot her part s t o repair or replace t he defect ive com ponent s. Replacem ent Exclusion H reads t hat t he policy is inapplicable for: Dam ages claim ed for any loss, cost or expense incurred by you or ot hers for t he loss of use, wit hdrawal, recall, inspect ion, repair, replacem ent adj ust m ent , rem oval or disposal of: ( 1) “ Your Product ” ; ( 2) “ Your Work” ; or ( 3) “ I m paired Propert y” ; if such product , work or propert y is wit hdrawn or recalled from t he m arket or from use by any person or organizat ion because of a known or suspect ed defect , deficiency, inadequacy, or dangerous condit ion in it . ECF# 284- 1, p. 14. Aspen reads t his exclusion t o ext inguish coverage for B&V’s claim for dam ages from “ ’repair, replacem ent , adj ust m ent , rem oval or disposal’ of t he JBR int ernals due t o a ‘defect , deficiency, inadequacy, or dangerous condit ion.’” ECF# 342, p. 53. Aspen cont ends t his exclusion is 42 int ended t o deny coverage for t he m ere discovery of a defect ive product when t he product has yet t o fail in use. As exam ples of t his exclusion’s applicat ion, Aspen cit es Big- D Const ruct ion Midwest , LLC v. Zurich Am erican I nsurance Co., 2018 WL 3849923 ( D. Ut ah Aug. 13, 2018) , as barring coverage of a general cont ract or’s cost s in rem oving ot her building part s so it could replace t he non- conform ing lum ber, and Nash v. Baum blit Const . Corp., 72 App. Div. 3d 1037, 1040, 902 N.Y.S.2d 99, 102 ( 2010) , as barring a general cont ract or’s recovery for rest orat ion and repair work perform ed due t o a defect ive renovat ion of a hom e. See also Flynn v. Tim m s, 199 App. Div. 2d 873, 606 N.Y.S.2d 352 ( 1993) . I n response, B&V reads t his Exclusion H t o exclude “ coverage for cost s incurred t o recall product s from t he m arket or rem ove work from use where t here has been no result ing ‘Propert y Dam age,’ but t he work is recalled or wit hdrawn from use t o repair a known or suspect ed deficiency.” ECF# 345, p. 79. B&V argues t he exclusion does not apply when t he defect has already caused result ing propert y dam age and cit es Thruway Produce, I nc. v. Mass. Bay I ns. Co., 114 F. Supp. 3d 81 ( W.D.N.Y. 2015) . Aspen’s expansive applicat ion of t his exclusion, according t o B&V, would vit iat e key coverage and would render m eaningless t he coverage provided in t he subcont ract or except ion. B&V dist inguishes Nash as not involving a subcont ract or’s defect ive work and dam ages t o ot her work. 43 I n reply, Aspen count ers t hat t he wording of t his exclusion is not rest rict ed t o product recalls but includes “ wit hdrawals.” Aspen argues: Parsing t he language of t he exclusion, t he JBRs were ‘wit hdrawn . . . from use’ by B&V because of ‘a known or suspect ed defect . . . . Even B&V adm it s as m uch. ( See, Dkt . # 345, at 64) . B&V cont ends t hat t he JBRs “ were dam aged by t he incorporat ion and required replacem ent of defect ive gas risers.” ( I d) . Even before t he phrase “ any person or organizat ion” was added t o t he exclusion by I SO in 1986, broadening t he exclusion t o lim it coverage, New York Court s explained t hat t his exclusion applied t o a nam ed insured’s wit hdrawal of it s product s, but not t o a t hird part y claim ant ’s wit hdrawal of t hem . Thom as J. Lipt on, I nc. v. Libert y Mut ’l. I ns. Co., 34 N.Y.2d 356, 314 N.E.2d 37 ( 1974) . ECF# 348, p. 24. Aspen m aint ains t his exclusion applies t o t he general cont ract or’s cost s in repairing a subcont ract or’s defect ive work and cit es, Hat haway Developm ent Co., I nc. v. I llinois Union I ns. Co., 274 Fed. Appx. 787 ( 11t h Cir. 2008) ; Kay Bee Builders, I nc. v. Merchant ’s Mut . I ns. Co., 10 App. Div. 3d 631, 632, 781 N.Y.S.2d 692 ( 2004) . This exclusion present s anot her exam ple where t he wording is suscept ible t o being st ret ched beyond t he exclusion’s apparent purpose. The Tent h Circuit has already said in t his case, “ Allowing CGL policies t o cover const ruct ion defect s caused by a subcont ract or com port s wit h t he purpose of liabilit y insurance—t o prot ect t he cont ract or not t he propert y owner.” 882 F.3d at 968. This finding cert ainly im pact s how t his court m ust read and apply t his exclusion. The New York Court of Appeals has int erpret ed t his socalled sist ership exclusion m indful of t he foreseeable coverage under t he policy and against t he insurer due t o t he exclusion’s am biguit y: 44 To say t hat t he cat egories of dam age claim ed here by Lipt on do not fall wit hin such coverage would appear t o exclude what , as a pract ical m at t er, would usually be som e of t he largest foreseeable elem ent s of such dam age. Such an int erpret at ion, . . . , would render t he coverage nearly illusory. I t is fundam ent al t hat am biguit ies in an insurance policy m ust be const rued against t he insurer ( Greaves v. Public Serv. Mut . I ns. Co., 5 NY2d 120, 125; see 29 N. Y. Jur., I nsurance, §§ 617, 619, pp. 607, 609) . This is part icularly so as t o am biguit ies found in an exclusionary clause ( Sincoff v. Libert y Mut . Fire I ns. Co., 11 NY2d 386, 390- 391; see 29 N. Y. Jur., I nsurance, § 623, p. 615) . We cannot t hink t hat , given t he econom ic and fact ual set t ing in which t hese policies were writ t en, an ordinary business m an in applying for insurance and reading t he language of t hese policies when subm it t ed, would not have t hought him self covered against precisely t he dam age claim s now assert ed by Lipt on. ( Cf. 29 N. Y. Jur., I nsurance, § 608, p. 597.) Thom as J. Lipt on, I nc. v. Libert y Mut . I ns. Co., 34 N.Y.2d 356, 361, 314 N.E.2d 37 ( 1974) . Thus, t he court will follow t hat precedent which const rues t his exclusion against t he insurer and which reconciles t he policy’s int ended and foreseeable coverage against t he exclusion’s lim it ed purpose. I t should be not ed t hat Aspen’s cit ed case law does not follow t his approach in applying t he replacem ent or sist ership exclusion. From it s own review of com m ent aries on insurance law, t he court finds t he following sum m ary of t he exclusion’s purpose and funct ion t o be m eaningful, correct , and consist ent wit h New York law: Exclusion n is called t he “ sist ership exclusion” and it applies t o any “ recall of product s, work or im paired propert y.” CGL Policy, Sect ion I .2( n) . Exclusion n prot ect s insurance com panies against liabilit y for t he cost s of recalls. See, e.g., Forest Cit y Dillon, I nc. v. Aet na Cas. & Sur. Co., 852 F.2d 168, 173 ( 6t h Cir. 1988) . The clause excludes “ dam ages claim ed for any loss” if a “ product ... is wit hdrawn or recalled from t he m arket or from use by any person or organizat ion because of a known or suspect ed defect , deficiency, inadequacy or dangerous condit ion in it .” CGL Policy, Sect ion I .2( n) ; Travelers 45 I ndem . Co. v. Acadia I ns. Co., No. 1: 08–CV–92, 2009 WL 1320965, at * 8 n. 7 ( D.Vt . May 8, 2009) ( “ The ‘sist ership exclusion’ deals wit h wit hdrawing or recalling dam aged propert y from t he m arket ....” ) . “ I nsurance com panies ... developed t he ‘sist ership’ clause t o m ake clear t hat , while t hey int ended t o pay for dam ages caused by a product t hat failed, t hey did not int end t o pay for t he cost s of recalling product s cont aining a sim ilar defect t hat had not yet failed.” Forest Cit y Dillon, 852 F.2d at 173. Harleysville assert s t hat R.I Pools has effect ively “ recalled” it s shot cret e from t he m arket . But t his argum ent fails, because no “ recall” occurred in t his case. “ [ T] he sist ership exclusion does not apply t o a product t hat has failed, but only t o a ‘sist er’ product wit hdrawn aft er failure of t he first product .” Am . Hom e Assurance v. Libbey–Owens– Ford Co., 786 F.2d 22, 25 ( 1st Cir. 1986) ; Forest Cit y Dillon, 852 F.2d at 173; Gulf Miss. Marine Corp. v. George Engine Co., I nc., 697 F.2d 668, 674 ( 5t h Cir. 1983) ; I m perial Cas. & I ndem . Co. v. High Concret e St ruct ures, I nc., 858 F.2d 128, 136 n. 9 ( 3d Cir. 1988) ( “ Sist ership provisions ... do not exclude coverage of dam ages arising from a defect ive product when no sist er product s are involved.” ) ; Todd Shipyards Corp. v. Turbine Serv., I nc., 674 F.2d 401, 419 ( 5t h Cir. 1982) ; Firem an's Fund, 2008 WL 4066096, at * 12 ( finding Sevent h Circuit 's conclusion in Sokol t hat Exclusion n barred coverage inapplicable because t hat case involved prevent at ive m easures, whereas in t he case before t he court , t he product had already caused dam age) . Here, no “ sist er” product was recalled. Param ount seeks coverage for t he dam age act ually caused by it s defect ive product ; it does not seek coverage for t he rem oval of it s defect ive shot cret e from t he m arket . Therefore, Exclusion n does not bar coverage in t his case. Harleysville Worcest er I ns. Co. v. Param ount Concret e, I nc., 10 F. Supp. 3d 252, 270–71 ( D. Conn. 2014) ; see, Nort h St ar Mut . I ns. Co. v. Rose, 27 F. Supp. 3d 1250, 1254 ( E.D. Okla. 2014) ; Scot t C. Turner, I nsurance Coverage of Const ruct ion Disput es §§ 34: 1- 3 ( 2d ed. 2018) ; 9A St even Plit t , et al., Couch on I nsurance § 129: 24 ( 3rd ed. 2018) ; 3 Allan D. Windt , I nsurance Claim s and Disput es § 11.13 ( 6t h ed. 2018) . Turner’s com m ent ary observes: 46 Many cases and com m ent at ors, looking t o t he insurer’s original int ent , have concluded t hat “ wit hdrawal” is lim it ed t o product recall sit uat ion. I nsurance com panies . . . developed [ t his exclusion] t o m ake clear t hat , while t hey int ended t o pay for dam ages caused by a product t hat failed, t hey did not int end t o pay for t he cost s of recalling product s cont aining a sim ilar defect t hat had not yet failed. . . . The exclusion is designed t o lim it t he insurer’s exposure in cases where because of t he act ual failure of t he insured’s product , sim ilar product s are wit hdrawn from use t o prevent t he failure of t hose ot her product s, which have not yet failed but are suspect ed of cont aining t he sam e defect . Thus, t he exclusion is lim it ed t o t he cost s of wit hdrawing sist er product s of work for precaut ionary purposes and does not apply t o claim s involving propert y dam age t o product or work t hat has already failed. This is a t erribly significant dist inct ion for const ruct ion claim s, where very lit t le work has a sist er piece of work. Thus, t he vast m aj orit y of const ruct ion claim s are unaffect ed by t he exclusion on t his ground alone. Thus, one insurance indust ry com m ent ary concludes, alt hough m any insurers cit e t his exclusion in response t o a defect ive work claim on a const ruct ion proj ect , it usually does not apply because a const ruct ion product is regarded as unique com plet ed operat ion and not a m ass- produced product subj ect t o a recall. Scot t C. Turner, I nsurance Coverage of Const ruct ion Disput es § 34: 3 ( 2d ed. 2018) ( int ernal quot at ion m arks, foot not es and cit at ions om it t ed) . Windt ’s com m ent ary adds: The m ost significant rest rict ion on t he applicabilit y of t he sist ership exclusion is t hat alt hough, according t o it s t erm s, t he exclusion applies whet her t he insured’s product is wit hdrawn from t he “ m arket or from use,” t he court s have, in general, not applied t he exclusion if t he insured’s product has already been put t o use. I n fact , t here are a few cases t hat have explained t hat t he exclusion applies only t o recalls. The t heory behind t he incorporat ion cases is t hat ( a) t he sist ership exclusion applies only t o prevent at ive or curat ive act ions, and ( b) once incorporat ion has t aken place, t he dam age has already t aken place, so t he wit hdrawal is not m erely a prevent at ive m easure. 3 Allan D. Windt , I nsurance Claim s and Disput es § 11.13 ( 6t h ed. 2018) . I n light of t hese aut horit ies and New York case law, t he court 47 finds t he sist ership exclusion inapplicable as B&V is not seeking prevent at ive dam ages t o sist er pieces associat ed wit h t he wit hdrawing or rem oving a product from t he m arket . See St onewall I ns. Co. v. Asbest os Claim s Mgt . Corp., 73 F.3d 1178, 1211 ( 2d Cir. 1995) , opinion m odified on denial of reh’g, 85 F.3d 49 ( 2d Cir. 1996) ( applying New York law and acknowledging “ t he case law narrowly const ruing t he sist ership exclusion and t he am biguit y in t he relevant policy language” ) ; Truax v. Hovey, Lt d. v. Aet na Cas. & Sur. Co., 122 A.D.2d 563, 504 N.Y.S.2d 934, 935 ( N.Y. App. Div. 1986) ( “ Since t he claim in t his case did not involve wit hdrawal of t he insulat ion from t he m arket ,” t he exclusion as designed does not apply.) . And, even if t he defect ive gas risers result ed in t he non- use of som e of t he JBRs, t his exclusion does “ not preclude coverage for dam age” caused by t he defect ive product or work t o ot her propert y t hat occurred wit h it s incorporat ion. See St onewall, 73 F.3d at 1211; see generally 3 Allan D. Windt , I nsurance Claim s and Disput es § 11.13 n. 8 ( Truax, despit e it s broad holding, “ could be explained on t he basis t hat t he sist ership exclusion was inapplicable because t he insured’s defect ive product had already, by virt ue of it s incorporat ion, dam aged t he product int o which it had been incorporat ed.” ) . Consist ent wit h it s holdings above and t he Tent h Circuit ’s findings on dam ages, t he court finds t hat t he incorporat ion of t he subcont ract ors’ defect ive work int o t he JBRs already dam aged t hem m aking t he sist ership exclusion inapplicable. 48 Finally, t he court agrees t hat applying t he sist ership exclusion broadly would render subcont ract or coverage illusory and would conflict wit h t he Tent h Circuit ’s reading of t his policy. Support for t his conclusion com es from Lipt on and from t he following analysis by t he West Virginia Suprem e Court : First , as we previously observed wit h respect t o Exclusion M, applying Exclusion N [ sist ership exclusion] t o preclude coverage for Ms. Cherringt on's loss of use of her propert y would produce an absurd and inconsist ent result wit h t he policy's coverage provisions. See Syl. pt . 2, D'Annunzio, 186 W.Va. 39, 410 S.E.2d 275. The policy at issue in t his case specifically provides coverage for t he work of subcont ract ors. A nat ural consequence of dam ages occasioned by defect ive work would be loss of use of t hat defect ive st ruct ure or port ion t hereof. To apply t his exclusion t o preclude coverage for t he dam ages occasioned by t he very sam e work t hat t he policy expressly covers would render such coverage illusory and would be cont rary t o t he policy's st at ed int ent ion t o provide indem nit y for t his specific loss. See Syl. pt . 5, in part , McMahon, 177 W.Va. 734, 356 S.E.2d 488 ( holding t hat insurance policy exclusions “ will be st rict ly const rued ... in order t hat t he purpose of providing indem nit y not be defeat ed” ) . Thus, we find t hat Exclusion N does not apply t o preclude coverage in t his case. Cherringt on v. Erie I ns. Propert y and Cas. Co., 231 W.Va. 470, 745 S.E.2d 508, 528 ( 2013) . For all t hese reasons, t he court finds t hat B&V has not carried it s burden of showing t his exclusion ext inguishes coverage for B&V’s claim for dam ages based on t he repair, replacem ent , adj ust m ent , rem oval or disposal of t he JBR int ernals due t o a defect , deficiency, inadequacy, or dangerous condit ion. Exhaust ion of Underlying Coverage t o Trigger Aspen Excess Policy As an excess insurer, Aspen argues est ablishing t he at t achm ent point of it s policy and any at t achm ent credit s from B&V’s set t lem ent s are 49 crit ical. I t is uncont rovert ed t hat “ B&V is not seeking coverage from Aspen/ Cat lin for any design changes or bet t erm ent s t o t he JBRs upon rebuilding.” ECF# 345, p. 36, ¶ 284. Aspen recognizes t he am ount of rebuild expenses covered is a quest ion of m at erial fact but argues t he issues of at t achm ent could reduce or even m oot B&V’s claim . The Policy’s insuring agreem ent provides in pert inent part : We will pay on behalf of t he “ I nsured” t hose sum s in excess of t he “ Ret ained Lim it ” which t he “ I nsured” by reason of liabilit y im posed by law or assum ed by t he “ I nsured” under cont ract prior t o t he “ Occurrence” , shall becom e legally obligat ed t o pay as dam ages for: ( a) “ Bodily inj ury” or “ Propert y Dam age” occurring during t he Policy Period st at ed in I t em 4 of t he Declarat ions ( Policy Period) and caused by an “ Occurrence” : . . . . ECF# 284- 1, p. 7. The Policy defines “ Ret ained Lim it ” as follows: “ Ret ained Lim it ” m eans whichever of t he following is applicable: ( 1) wit h respect t o any “ Occurrence” t hat is covered by “ Underlying I nsurance” or any ot her insurance, t he t ot al of t he applicable lim it s of t he “ Underlying I nsurance” plus t he applicable lim it s of any ot her insurance; or ( 2) wit h respect t o any “ Occurrence” t hat is not covered by “ Underlying I nsurance” or any ot her insurance, t he am ount of t he SelfI nsured Ret ent ion st at ed in I t em 5( c) of t he Declarat ions ( t he “ SelfI nsured Ret ent ion” ) . ECF# 284- 1, p. 11. Aspen sweepingly argues t he definit ion of “ Ret ained Lim it ” m akes it s policy excess t o all underlying insurance and all ot her insurance, including “ propert y, professional liabilit y, MTI subcont ract or/ liabilit y policies.” ECF# 342, p. 55. Aspen seeks sum m ary j udgm ent on t he following t wo at t achm ent issues: ( 1) whet her t he Aspen policy is t riggered if t here is 50 coverage rem aining in t he underlying policy, and ( 2) if t riggered, what is t he Aspen policy’s at t achm ent point ? ECF# 342, p. 56. B&V also m oves for sum m ary j udgm ent t hat t he ret ained lim it requirem ent under t he Aspen policy “ has been sat isfied by paym ent or credit for t he applicable lim it s of t he Zurich prim ary policy; and, t hat t he ‘ot her insurance’ com ponent of Ret ained Lim it has been m et by credit ing eit her t he act ual net set t lem ent am ount s obt ained from t he MTI general liabilit y policies or, wit h respect t o t he Endorsem ent 35 Nam ed Proj ect s by applicat ion of t he ‘Subcont ract ors’ own lim it s of USD 5,000,000.’” ECF# 338, pp. 1- 2. Because t he issues are overlapping, t he court addresses bot h m ot ions at t he sam e t im e. Act ual Paym ent and/ or Credit for Underlying Coverage According t o Aspen, New York law requires exhaust ion by act ual paym ent of underlying coverage when t he excess policy requires t he sam e. The court finds t hat Aspen’s cit ed decisions have policies t hat clearly condit ioned at t achm ent of excess coverage upon t he “ paym ent of losses t hereunder.” See, e.g., Federal I ns. Co. v. Est at e of Gould, 2011 WL 4552381, at * 7 ( S.D.N.Y. Sep. 28, 2011) , aff’d, 719 F.3d 83 ( 2nd Cir. 2013) ; Forest Laborat ories, I nc. v. Arch I ns. Co., 116 A.D.3d 628, 984 N.Y.S.2d 361, 362 ( N.Y. App. Div. 2014) ( excess policy required exhaust ion t hrough “ act ual paym ent ” of underlying policy’s lim it ) , appeal den., 24 N.Y.3d 901 ( 2014) ; Cooper v. Cert ain Underwrit ers at Lloyd’s, London, 716 Fed. Appx. 735, 736 ( 9t h Cir. Mar. 30, 2018) ( “ excess policy unam biguously 51 required exhaust ion of underlying lim it s t hrough paym ent by t he insurers rat her t han paym ent by t he insured” ) . Believing t hese aut horit ies support t he blanket applicat ion of t his rule here, Aspen argues it s excess policy has not been t riggered because t he underlying Zurich policies were not exhaust ed by act ual paym ent . Conceding t here is not exhaust ion by act ual paym ent here, B&V cont ends t he excess policy here allows it t o use “ gap filling” bet ween t he Zurich set t lem ent and t he underlying insurance lim it s found in Schedule A t o calculat e t he t riggering point for coverage. B&V argues t his is not cont rary t o New York law. Unlike t he case law cit ed by Aspen, t he excess policy here does not expressly require act ual paym ent by t he underlying insurer for exhaust ion. Specifically, t he policy provides t hat Aspen will pay “ t hose sum s in excess of t he ‘Ret ained Lim it ,’” ECF# 284- 1, p. 7, t hat is defined, in part , t o m ean “ wit h respect t o any ‘Occurrence’ t hat is covered by ‘Underlying I nsurance’ or any ot her insurance, t he t ot al of t he applicable lim it s of t he ‘Underlying I nsurance’ plus t he applicable lim it s of any ot her insurance,” ECF# 284- 1, p. 11. Not iceably absent from t hese t erm s is any language requiring full paym ent of applicable lim it s. I nst ead, t he policy refers generally t o “ applicable lim it s” and does not expressly require t he insurer’s paym ent of t hose lim it s. B&V point s t o a line of relevant New York precedent in t his regard: 52 Plaint iff cit es a single case in support of it s cont ent ion t hat t he policies perm it t he insured t o fill t he gap. I n Zeig v. Massachuset t s Bonding & I nsurance Co., 23 F.2d 665 ( 2d Cir. 1928) , t he court int erpret ed an excess policy t hat required t he prim ary insurance t o be “ exhaust ed in t he paym ent of claim s t o t he full am ount of t he expressed lim it .” I d. at 666. The court found t hat t his language was am biguous and did not require t he underlying insurer t o m ake full paym ent in cash on it s policies, holding t hat t he “ claim s are paid t o t he full am ount of t he policies, if t hey are set t led and discharged, and t he prim ary insurance is t hereby exhaust ed.” I d. The court not ed t hat t he part ies could have m ade full paym ent in cash a condit ion precedent for t he excess insurance, but t hat t he defendant had “ no rat ional int erest in whet her t he insured collect ed t he full am ount of t he prim ary policies, so long as it was only called upon t o pay such a port ion of t he loss as was in excess of t he lim it s of t he policies.” I d. Zeig, which rem ains a “ sem inal decision int erpret ing New York insurance law” in t he Second Circuit , Lexingt on I ns. Co. v. Tokio Marine & Nichido Fire I ns. Co., No. 11 CI V. 391 DAB, 2012 WL 1278005, at * 3 ( S.D.N.Y. Mar. 28, 2012) ( collect ing cases relying on Zeig) , st ands for t he proposit ion t hat New York law perm it s an insured t o fill t he gap left by below- lim it s set t lem ent wit h an underlying insurer where t he policy leaves t he t erm s “ paym ent ” or “ exhaust ion” am biguous. Hopem an Brot hers, I nc. v. Cont l. Cas. Co., 307 F. Supp. 3d 433, 472 ( E.D. Va. 2018) ( applying New York law) . Based on New York precedent referenced here, Aspen’s coverage language lacks an express requirem ent of t he underlying insurer’s act ual paym ent and can be read as am biguous over whet her B&V can fill t he gap. See Hopem an, 307 F. Supp. 2d at 476. There is m ore here. Condit ion G of Aspen’s policy not only confirm s t here is no t riggering requirem ent of act ual paym ent by t he underlying insurer, but it can be read even t o allow t he insured’s gap filling: “ ( 1) We will have liabilit y for any one ‘Occurrence’ only when t he am ount of t he ‘Ret ained Lim it ’ wit h respect t o such ‘Occurrence’ has been paid by: ( a) t he ‘I nsured’; ( b) us on behalf of t he “ insured’ ( ot her t han under t his policy) ; or ( c) t he ‘I nsured’s’ 53 underlying insurer.” ECF# 284- 1, p. 18. Thus, t he court grant s part ial sum m ary j udgm ent for B&V on t he issue of t he Aspen policy perm it t ing a below- lim it s set t lem ent wit h t he underlying insurer and t he insured filling t he gap for exhaust ion. Am ount of Coverage Credit ed under t he Zurich Policies Aspen argues t hat should t he court rule against t he act ual paym ent requirem ent t hen t he court alt ernat ively should find t hat Aspen is “ ent it led t o t he following” credit s under t he Zurich policies: ( 1) an at t achm ent credit of $16 m illion in underlying insurance for t he course of const ruct ion claim s per t he Zurich policies; ( 2) an at t achm ent credit of $4 m illion in com plet ed operat ions claim s relat ing t o t he Zurich policies; ( 3) a credit equal t o t he $15 m illion received from t he MTI insurers which is allocat ed across all covered plant s; and ( 4) a m inim um at t achm ent credit of $5 m illion for t he Clift y Creek and Kyger Creek plant s. ECF# 342, p. 62. Besides addressing Aspen’s argum ent s in support of t hese am ount s alleged t o be credit s, t he court also will decide Aspen’s ot her argum ent s for addit ional credit s. $16 Million Credit for Course of Const ruct ion Claim s and $4 Million Com plet ed Operat ions Credit for bot h policies Schedule A of Aspen’s policy set s out t he schedule of Zurich’s underlying com m ercial general liabilit y ( “ CGL” ) coverage as $2 m illion for each occurrence, $4 m illion general aggregat e per locat ion/ proj ect , and $4 m illion for product s- com plet ed operat ions period aggregat e. Aspen observes t hat Zurich issued t wo CGL policies, one for 2007/ 2008 and one for 2008/ 2009, and each has t he sam e schedule of lim it s. Aspen sum m arily 54 proposes first t hat t he lim it s for bot h Zurich policies m ust be exhaust ed before coverage under it s policy is t riggered. Aspen t hen want s t he aggregat e lim it of $4 m illion applied t o each of t he four uncom plet ed plant s result ing in a $16 m illion credit . B&V art iculat es it s posit ion bot h in opposing Aspen’s m ot ion and in seeking it s own part ial sum m ary j udgm ent on t his issue. To Aspen’s argum ent t hat m ult iple years of Zurich policies are applicable, B&V count ers t hat “ it s claim is lim it ed t o one Policy period for Occurrences at each JBR, which are subj ect t o a single policy period.” ECF# 345, p. 84. B&V calls Aspen’s argum ent as being “ sim ply wrong,” m ade “ wit hout analysis,” and unsupport ed by “ any Policy t erm t hat requires ( or even suggest s) t hat m ult iple policy years’ of Underlying I nsurance should be included in t he Ret ained Lim it calculat ion.” I d. B&V explains t hat it s set t lem ent wit h Zurich was “ t o fully resolve it s obligat ions for t he AEP I nt ernals Claim s under t he 2007- 2008 Policy.” ECF# 311- 4, p. 3. From t he Zurich policy, B&V first not es t hat t he insuring agreem ent fixes Zurich’s liabilit y t o propert y dam age occurring during t he policy period and “ includes any cont inuat ion, change or resum pt ion of t hat . . . ‘propert y dam age’ aft er t he end of t he policy period.” ECF# 338- 2, p. 20. Zurich’s policy defines “ occurrence” as m eaning “ an accident , including cont inuous or repeat ed exposure t o subst ant ially t he sam e general harm ful condit ions.” ECF# 338- 2, p. 33. B&V m aint ains “ t he t riggering event s for B&V’s general liabilit y are in one policy.” ECF# 345, p. 55 86. Finally, B&V furt her point s t o what it calls t he “ ant i- st acking” provision in t he Zurich policy: I f t his Coverage Form and any ot her Coverage Form or policy issued t o you by us or any com pany affiliat ed wit h us apply t o t he sam e “ occurrence,” t he m axim um Lim it of I nsurance under all t he Coverage Form s or policies shall not exceed t he highest applicable Lim it of I nsurance under any one Coverage Form or policy. ECF# 338- 2, p. 16, ¶ 14. B&V’s posit ion is t hat Zurich’s coverage was lim it ed t o t he one policy period because B&V’s liabilit y was t riggered by one occurrence, and while t he dam ages m ay have cont inued, Zurich’s coverage could not be st acked and cannot “ exceed t he highest applicable Lim it of I nsurance under any one Coverage Form or policy.” I d. Hoping t o evade t hese plain t erm s in Zurich’s policy, Aspen also argues t hat B&V’s claim really assert s t wo occurrences. Not only does t he record not support t his argum ent but it runs count er t o t he Tent h Circuit ’s holding in t his case. Black & Veat ch Corp. v. Aspen I ns. ( UK) Lt d, 882 F.3d at 965 ( “ I n sum , t he propert y dam ages at issue were caused by an “ occurrence,” as t hat t erm is defined in t he Policy.” ) ; I d. at 971 ( “ Under t he Policy, t he dam ages at issue here were caused by a coverage- t riggering ‘occurrence.’” ) . 882 F.3d at 965. I t is uncont rovert ed t hat B&V is cont ending “ t hat t he covered ‘occurrence’ was t he inst allat ion of defect ive gas risers.” ECF# 345, p. 23, ¶ 251. The court finds no support for Aspen’s argum ent for m ult iple occurrences at each plant . As Aspen point s out in it s reply, ECF# 348, p. 30, t here rem ains an open coverage quest ion because B&V 56 recognizes a quest ion of m at erial fact as t o “ t he dat e of t he Occurrence at Cardinal 3.” ECF# 345, p. 70. This does not im pact t he court ’s ruling t hat Zurich’s ant i- st acking provisions preclude involving t wo policies for t he sam e occurrence here. As for Aspen want ing an aggregat e lim it credit of $4 m illion applied t o each of t he four uncom plet ed plant s, B&V argues t his is cont rary t o t he Zurich policy’s t erm s which set an aggregat e lim it as t he m ost t o be paid for dam ages per locat ion/ proj ect while, in cont rast , t he occurrence lim it is t he m ost t he insurer will pay for dam ages arising out of any one occurrence. See Zurich policy, Sect ion I I I - Lim it s of I nsurance, ECF# 338- 2, pp. 28- 29. New York law cert ainly recognizes t his com m on underst anding as t o t he difference bet ween t he t wo lim it s: Aggr e ga t e Lim it The m axim um sum t he insurer can be called upon t o pay, regardless of t he num ber of occurrences. I nsurance policies t ypically include a “ per occurrence” lim it , which is t he m axim um sum t he insurer can be called upon pay, regardless of t he num ber of persons inj ured in a given accident . Absent an ‘aggregat e lim it ,’ t here is no lim it on t he num ber of t im es t he insurer can be called upon t o pay t he ‘per occurrence’ lim it for different accident s. See 33 Sarah B. Biser, et al., N.Y. Prac., New York Const ruct ion Law Manual Appendix 10A ( 2d ed.) ( Dec. 2017) ; see Unigard Sec. I ns. Co., I nc. v. N. River I ns. Co., 762 F. Supp. 566, 595 ( S.D.N.Y. 1991) , aff'd in part , rev'd in part , 4 F.3d 1049 ( 2d Cir. 1993) ( “ The purpose of having an aggregat e lim it in addit ion t o an occurrence lim it is t o cap t he indem nit y paym ent s m ade in a given policy period regardless of t he num ber of occurrences.” ) . Because 57 B&V’s claim is for one occurrence per plant ( locat ion/ proj ect ) , t he court agrees wit h B&V t hat t he occurrence lim it credit of $2 m illion per locat ion/ proj ect for t he 4 uncom plet ed JBRs or $8 m illion fulfills t he underlying insurance part of t he Ret ained Lim it . $15 Million Credit from “ Ot her I nsurance” MTI ’s I nsurers and $5 m illion at t achm ent credit for t he Clift y Creek and Kyger Creek plant s MTI was B&V’s prim ary subcont ract or for t he int ernal com ponent s at each JBR proj ect . B&V was a nam ed addit ional insured on MTI ’s general liabilit y policies. The court ’s holding above t hat act ual exhaust ion is not required but t hat t he insured can fill t he gap on any ret ained lim it s applies wit h equal force here for “ Ot her I nsurance.” The part ies advance several relat ed argum ent s as t o what is t he ret ained lim it , “ t he applicable lim it s of any ot her insurance.” ECF# 284- 1, p. 11. The part ies’ briefing reveals t hat som e of t he issues are not ripe for sum m ary j udgm ent . Aspen’s m ot ion sum m arily request s t he full $15 m illion credit for B&V’s set t lem ent wit h MTI ’s insurers and an addit ional $5 m illion credit under Endorsem ent 35 as underlying insurance for t he t w o plant s having a cont ract value exceeding $50 m illion. For t he “ ot her insurance,” B&V assert s it has properly credit ed Aspen for it s $14.5 m illion set t lem ent wit h MTI ’s insurers represent ing “ t he exhaust ion of t wo full aggregat e lim it s under bot h MTI ’s prim ary and excess policies for t wo policy periods, plus an addit ional $500,000 cont ribut ion from MTI ’s prim ary insurer.” ECF# 338, p. 15; ECF# 58 307- 1. B&V st at es t hese set t lem ent am ount s “ were first allocat ed t o cover legal fees and cost s in t he am ount of $5,278.567 and t he rem aining am ount credit ed t o Ret ained Lim it .” ECF# 338, p. 16. B&V m oves for sum m ary j udgm ent arguing t hat t he act ual am ount s recovered from t he MTI ’s insurers const it ut es “ t he full am ount of ‘ot her collect ible insurances available” as t o m eet t he “ Ret ained Lim it ” requirem ent or t hat Endorsem ent 35 set s t he bar for ot her insurance t o m eet t he “ Ret ained Lim it .” ECF# 338, pp. 17- 18. I n it s sum m ary j udgm ent m ot ion, B&V explains t hat t he subcont ract or MTI ’s prim ary and excess liabilit y policies gave coverage wit h lim it s of $6 m illion per occurrence and $7 m illion general aggregat e. Because it aggressively pursued coverage under t hree policy periods wit h m ult iple occurrences, B&V m ade a claim for $22 m illion coverage against MTI ’s insurers, assert ing coverage under a t hird policy period ( 2009- 2010) for dam ages at Cardinal 1. ECF# 338, p. 16. B&V ult im at ely set t led for t wo full general aggregat e lim it s, plus $500,000, or $14.5 m illion. B&V also discusses having kept Aspen inform ed of all set t lem ent effort s, having asked Aspen t o part icipat e and assist in t hese recovery effort s, and having received from Aspen only a reservat ion of right s and a refusal t o part icipat e. B&V explains t hat it s likelihood of recovery under t he MTI ’s t hird policy was rem ot e and so it accept ed t he set t lem ent for t he t wo policies. Since Aspen refused t o part icipat e in t hose set t lem ent negot iat ions, B&V argues Aspen cannot now argue for a different out com e and for benefit s from it s own 59 refusal t o engage. “ I nsurers t hat refuse t o part icipat e in set t lem ent should not receive a windfall for t heir int ransigence.” ECF# 338, p. 17. B&V’s only cit ed aut horit y is E.R. Squibbs & Sons, I nc. v. Accident and Cas. I ns. Co., 1997 WL 251548 ( S.D.N.Y. May 13, 1997) . Aspen responds arguing t hat B&V’s claim for $22 m illion in coverage against MTI ’s insurers j udicially est ops it from now arguing t hat t he act ual recovery from MTI ’s insurers is t he recovery of collect ible “ ot her insurance” for purposes of it s policy. B&V right ly responds t his rule of j udicial est oppel only applies if t he assert ing part y “ succeeds in m aint aining t hat posit ion.” New Ham pshire v. Maine, 532 U.S. 742, 749 ( 2001) . The court agrees t hat Aspen’s argum ent for j udicial est oppel cannot prevail here. Aspen argues t hat E.R. Squibbs applies only when t he set t lem ent s are reached while t he insured is st ill facing cont ingent liabilit ies t hat could reduce t he risk of t he insured receiving a double recovery or windfall. While Aspen’s reading of E.R. Squibbs is t oo narrow, t he court agrees t hat t he decision involves circum st ances which are cert ainly different from t he quest ion here of calculat ing ret ained lim it s in t he absence of any out st anding cont ingent liabilit ies. Aspen also argues t he Policy releases it from t he obligat ion t o negot iat e, set t le, or defend when t he insured has collect ible underlying insurance or ot her insurance. The decision in E.R. Squibbs does not fact or in such a policy provision in it s rule of equit y. The part ies have not present ed t he court wit h t he fact s or analysis for evaluat ing 60 t he possibilit y of coverage under t he t hird policy or for concluding t hat t he set t lem ent wit h MTI ’s insurers was reasonable. The sum m ary j udgm ent record is insufficient t o find and apply t he rule from E.R. Squibbs here. Thus, t here are quest ions of m at erial fact precluding sum m ary j udgm ent on t he applicable lim it s of t he “ ot her insurance” involving MTI ’s insurers. B&V also looks t o Endorsem ent 35 as providing som e guidance for det erm ining t he “ applicable lim it s” of “ ot her insurance.” On it s face, Endorsem ent 35 provides coverage for cert ain nam ed proj ect s including, Kyger Creek, Clift y Creek, and Conesville, subj ect t o cert ain condit ions. I t expressly provides coverage subj ect t o an addit ional prem ium based on t he proj ect s’ “ Full Cont ract Value.” I t furt her st at es: “ The following proj ect s sit in excess of: Sub Cont ract ors’ own lim it s of USD5,000,000 on which Black and Veat ch are an addit ional insured, when Black and Veat ch self perform Engineering, Procurem ent and Const ruct ion cont ract s where Full Cont ract Values are great er t han USD50,000,000.” ECF# 338- 1, p. 59. B&V argues t his Endorsem ent “ requires only one $5 m illion lim it applicable t o all Nam ed Proj ect s t o m eet t he defined “ ot her insurance requirem ent for such proj ect s.” ECF# 338, p. 19, n. 7. Aspen responds t hat it is “ ent it led t o a m inim um underlying lim it of subcont ract insurance of $5 m illion, in addit ion t o t he underlying coverage required by t he Policy.” ECF# 343, p. 25. The court reads Endorsem ent 35 as separat ely creat ing a $5 m illion lim it applicable as one lim it for all nam ed proj ect s t oget her. B&V also argues t his 61 Endorsem ent set s t he bar for t he “ ot her insurance t o be collect ed in order t o m eet t hat com ponent of Ret ained Lim it under t he Policy” which was cleared eit her by MTI ’s insurers having coverage in excess of $5 m illion or by B&V’s set t lem ent wit h MTI ’s insurers exceeding $5 m illion. ECF# 338 at p. 18. Neit her t he wording of t his endorsem ent nor any argum ent offered by B&V would support an int erpret at ion t hat t his endorsem ent operat es as a bar on t he applicable “ ot her insurance” lim it s for JBR unit s not subj ect t o t his Endorsem ent . The Endorsem ent expressly recognizes insurance “ specifically purchased t o apply in excess” of Aspen’s policy which under New York law is const rued as designat ing t he subcont ract ors’ insurance as “ underlying insurance.” See Bovis Lend Lease LMB, I nc. v. Great Am erican I ns. Co., 53 A.D.3d 140, 855 N.Y.S.2d 459, 469 ( N.Y. App. 2008) ; see Condit ion H of Aspen Policy, ECF# 284- 1, p. 18. As for t he subcont ract ors’ liabilit y coverage in excess of $5 m illion for t he nam ed proj ect s and for all ot her plant s, t here rem ains t he det erm inat ion of t he applicable lim it s of t his “ ot her insurance” which t his court finds, for t he reasons already st at ed above, cannot be decided on t his sum m ary j udgm ent record. Consequent ly, a sum m ary j udgm ent ruling on t he ret ained lim it of “ ot her insurance” is not possible. I nvoices Paid by B&V’s Professional Liabilit y I nsurers Cit ing t he “ one- sat isfact ion” rule and relying on t he deposit ion t est im ony of Dennis Frost ic, t he claim s reviewer for B&V’s Professional Liabilit y I nsurers, Aspen assert s t hat t hese liabilit y insurers already 62 reim bursed B&V on specific subcont ract ors’ invoices for w hich B&V now seeks paym ent again from Aspen. Consequent ly, Aspen want s a sum m ary j udgm ent order t hat subcont ract ors’ invoices already paid by ot hers cannot be included as part of B&V’s claim against Aspen. B&V does not cont rovert t hat it periodically subm it t ed invoices t o Frost ic who reviewed t hem and advised t he insurers on what reim bursem ent s t o m ake. Nor does B&V cont rovert t hat it s $98 m illion claim t o t he Professional Liabilit y I nsurers was support ed by invoices and was paid t o t he lim it of t he professional liabilit y t ower. ECF# 345, pp. 39- 40. B&V, however, denies t hat t he Professional Liabilit y I nsurers “ paid on specific invoices subm it t ed by B&V for subcont ract or work.” I d. at p. 40, ¶ 300. B&V underst ands Frost ic t o t est ify t hat t he subm it t ed invoices were paid upon but t hat t he paym ent s were not direct ed t o specific invoices. I n support of t his reading, B&V subm it s a declarat ion from Frost ic which is dat ed aft er his deposit ion and st at es in relevant part : 3. . . . On behalf of t he Professional Liabilit y I nsurers providing coverage t o Black & Veat ch, I negot iat ed a set t lem ent of t he JBR I nt ernals claim wit h Black & Veat ch. 4. Pursuant t o t he set t lem ent , t he Professional Liabilit y I nsurers agreed t o pay a percent age of all cost s incurred in connect ion wit h t he rebuild of t he JBR int ernals as t hey were incurred by Black & Veat ch. 5. Recognizing t hat a port ion of t he cost s as incurred m ay not be covered by t he professional liabilit y policies, t he Professional Liabilit y I nsurers agreed t o reim burse Black & Veat ch 75% of rebuild cost s subm it t ed—on an as incurred basis—up t o t he rem aining lim it s of liabilit y for t he professional liabilit y t ower of approxim at ely $59 m illion. 6. At m y deposit ion in t his m at t er, Exhibit 116 was ident ified as docum ent s produced by m y law firm pursuant t o a subpoena issued by at t orneys represent ing Aspen . . . . That exhibit cont ains num erous 63 references t o and docum ent s concerning t he set t lem ent of t he claim m ade t o t he Professional Liabilit y I nsurers, including invoices Black & Veat ch subm it t ed t o t he Professional Liabilit y I nsurers t o support it s claim for reim bursem ent as cost s were incurred. 7. I n issuing reim bursem ent s, t he Professional Liabilit y I nsurers reviewed a subset of t he invoices subm it t ed by Black & Veat ch t o confirm t hey relat ed t o t he rebuild of t he JBRs at issue. 8. I n issuing reim bursem ent s, t he Professional Liabilit y I nsurers did not designat e or det erm ine specific invoices or port ions of invoices for rebuild cost s t hat were being reim bursed, but sim ply paid 75% of t he t ot al subm ission. The Professional Liabilit y I nsurers did pay specific invoices for covered at t orney fees and cost s of consult ant s. The at t ached sum m ary t aken from Exhibit 116 reflect s t he general and not specific invoice by invoice paym ent s m ade. ECF# 299- 2, pp. 2- 3. B&V also looks t o t he t est im ony of St uart Shaw, B&V’s vice- president of risk m anagem ent and disput e resolut ion, who t est ified t o an agreem ent wit h Mr. Frost ic whereby t he insurers would pay 75% of what was subm it t ed wit hout paym ent s being allocat ed am ong specific invoices. ECF# 310- 3, pp. 182- 185. Wit h t his evidence, B&V cont rovert s Aspen’s proposed st at em ent of fact s over whet her t he insurers act ually reim bursed B&V for specific subcont ract ors’ invoices. See ECF# 345, pp, 40- 54. The court agrees w it h B&V’s posit ion t hat t here are genuine issues of m at erial fact here over which, if any, specific invoices were act ually paid by t he insurers. The evidence cert ainly indicat es invoices were subm it t ed and reviewed, but t o say t hat t he record is uncont rovert ed t hat B&V’s claim for som e of t hose sam e invoices is necessarily double- dipping assum es fact s disput ed by t hose who negot iat ed and execut ed t he set t lem ent agreem ent bet ween B&V and it s Professional Liabilit y I nsurers. The court disagrees wit h Aspen t hat Frost ic’s subsequent declarat ion plainly 64 cont radict s answers given in his earlier deposit ion. Aspen is denied sum m ary j udgm ent on t his issue. Having found a quest ion of m at erial fact , t he court will not t ake up B&V’s alt ernat ive argum ent s for applying t he “ m ade whole” doct rine out side of a subrogat ion cont ext under New York law. B&V Claim is Moot Aspen’s last issue assum es it has prevailed on all argum ent s for credit s ( act ual and set t lem ent ) from ot her and underlying insurance and t hen calculat es t he t ot al of t hese t o exceed B&V’s claim against Aspen, which would m oot B&V’s claim . Because Aspen has not prevailed on all it s posit ions, including t hose t hat follow, and because quest ions of m at erial fact rem ain as t o som e of t hese issues, t he court sum m arily denies t his argum ent for sum m ary j udgm ent . B& V’S M OTI ON FOR PARTI AL SUM M ARY JUD GM EN T ECF# 3 3 7 The court has already addressed m ost of B&V’s argum ent s above in ruling on t he issues com m on t o t he part ies’ respect ive m ot ions. Thus, t he court has grant ed B&V’s m ot ion for part ial sum m ary j udgm ent t hat t he ret ained lim it for t he underlying Zurich insurance has been m et by paym ent or credit for t he applicable lim it s as det erm ined above. Finding t here t o be genuine issues of m at erial fact and an insufficient record, t he court denied sum m ary j udgm ent t hat t he ret ained lim it for t he ot her insurance com ponent has been m et by credit ing t he act ual net set t lem ent wit h MTI ’s general liabilit y insurers or by applicat ion of Endorsem ent 35. B&V’s m ot ion 65 raises a relat ed issue not decided earlier, t hat is, what const it ut es “ ot her insurance” under t he Policy. The court also will t ake up B&V’s rem aining sum m ary j udgm ent request t hat Endorsem ent 27 requires Aspen t o indem nify B&V for propert y dam age arising from professional service errors and exceeding $2 m illion per occurrence but not m ore t han t he $8 m illion sublim it of each $25 m illion general aggregat e lim it . “ Ot her I nsurance” Not ing t hat t he Policy does not define t his t erm of art , B&V argues it is “ [ i] nsurance t hat covers t he sam e propert y against t he sam e risk and in favor of t he sam e part y,” cit ing West ern Herit age I ns. Co. v. Cent ury Suret y Co., 32 F. Supp. 3d 443, 450- 51 ( S.D.N.Y. 2014) . I n West ern Herit age, t he court not ed t he New York Court of Appeals holding, “ t hat t he Ot her I nsurance provisions apply only ‘where t wo or m ore insurance policies cover t he sam e risk in t he nam e of, or for t he benefit of, t he sam e person.’” 32 F. Supp. 3d at 451 ( cit ing Great N. I ns. Co. v. Mount Vernon Fire I ns. Co., 92 N.Y.2d 682, 686- 87 ( 1999) ) ; see Hart ford Underwrit ers I ns. Co. v. Hanover I ns. Co., 122 F. Supp. 3d 143, 146 n.2 ( S.D.N.Y. 2015) , aff’d, 653 Fed. Appx. 66 ( 2nd Cir. Jun. 29, 2016) . Under t his rule, B&V argues t he only “ ot her insurance” applicable here is MTI ’s general liabilit y policies which list ed B&V as an addit ional insured. B&V argues t he following insurance is not “ ot her insurance” - - it s Professional Liabilit y coverage for errors and om issions by it s ow n professions and t he first - part y propert y dam age 66 policies issued t o t he JBR ow ners on which B&V was an addit ional insured— because t hey insure “ different risks and provide recovery for a different range of dam ages.” ECF# 338, p. 8. According t o B&V, only subcont ract or MTI ’s general liabilit y insurers insured t he sam e risk as Aspen’s liabilit y policy. B&V dist inguishes it s Professional Liabilit y Policy as insuring “ against any econom ic loss arising from negligent act s, errors or om issions in design, supervision or ot her professional act ivit ies, and does not require bodily inj ury or propert y dam age caused by an occurrence t o be t riggered.” ECF# 338, p. 12. As for t he JBR owners’ propert y insurance, it provided “ first part y, no fault coverage.” I d. at 12- 13. Thus, neit her of t hese policies qualifies as “ ot her insurance.” B&V clarifies t hat it s argum ent as t o “ ot her insurance” and exhaust ing t he “ ret ained lim it s” of “ collect ible ot her insurance” does not address t he allocat ion of recoveries from different lines of insurance and t he rule against “ double- dipping.” For allocat ion, B&V st ands on it s Exhibit 338- 6 which shows unrecovered cost s of rem ediat ion exceeding $53 m illion, a sum great er t han B&V’s propert y dam age claim subm it t ed t o t he defendant s. ECF# 338, p. 14. Aspen responds t hat if t he court accept s B&V’s argum ent t hat Endorsem ent 27 provides som e form of professional liabilit y coverage t hen B&V’s Professional Liabilit y insurance is “ ot her insurance” under t he ret ained lim it s provision. Absent t hat holding, Aspen apparent ly concedes B&V’s 67 argum ent on t he m eaning of “ ot her insurance” under t he ret ained lim it s. Aspen cert ainly challenges B&V’s Exhibit 338- 6 as including unrecoverable cost s and double- dipping. The court agrees, as Aspen apparent ly concedes, t hat “ ot her insurance” does not include t he propert y dam age policies issued t o t he JBR owners on which B&V was an addit ional insured. B&V also asks t he court t o rest rict any det erm inat ion of “ excess” coverage t o t he express t erm s of Endorsem ent 27 and t o conclude t hat it “ does not refer t o any ot her insurance or t o any underlying insurance or t o t he definit ion of Ret ained Lim it .” ECF# 346, p. 18. I n short , t he court is being asked t o det erm ine if t he scope of t he “ ot her insurance” provisions in t he m ain policy necessarily include considerat ion of t hat coverage provided in t he policy’s endorsem ent . B&V argues for reading only t he express t erm s of Endorsem ent 27, while Aspen argues for reading Endorsem ent 27 as part of t he w hole policy. Neit her side cit es any aut horit y for t heir respect ive posit ions. The part ies’ posit ions beg t he quest ion whet her t he coverage in Endorsem ent 27 is dist inct as t o require it s ow n “ ot her insurance” clause. See Cont ract Marine Carriers, I nc. v. Abbot t Laborat ories, I nt ’l, 1993 WL 106374, at * 6- * 7 ( S.D.N.Y. Apr. 6, 1993) . This endorsem ent does not require a separat e or addit ional prem ium but does have it s own lim it s of liabilit y. The endorsem ent coverage is of a unique and dist inct charact er in covering professional services specific t o B&V’s capacit y as an Engineering/ Procurem ent 68 / Const ruct ion Cont ract or ( “ EPC” ) . The endorsem ent , however, expresses t his coverage in being an except ion t o an exclusion under t he CGL. I n effect , t he endorsem ent m akes t his loss coverable under t he m ain policy. The court cannot find in t he policy any j ust ificat ion for reading t he coverage provided in Endorsem ent 27 in isolat ion of t he ot her coverage provided by t he CGL in det erm ining what is “ ot her insurance.” The court will follow t he general rule of const ruing t he policy as a whole, giving m eaning t o all relat ed provisions, and t hereby reaching a reasonable conclusion t hat Endorsem ent 27’s coverage is part of t he m ain policy. Thus, t he court denies B&V’s request for sum m ary j udgm ent t hat it s Professional Liabilit y insurance necessarily covered a different risk as t o not qualify as “ ot her insurance.” The court will lim it it s sum m ary j udgm ent decision t o t he argum ent s specifically advanced. Endorsem ent 27 B&V assert s it act ed as an EPC on each JBR proj ect and cont ends t his endorsem ent affords coverage for propert y dam age result ing from professional services perform ed by or on behalf of B&V subj ect t o a sublim it of $8 m illion per occurrence in excess of $2 m illion. This endorsem ent reads: PROFESSI ON AL LI ABI LI TY EXCLUSI ON This policy does not apply t o any act , negligence, error or om ission, m alpract ice or m ist ake arising out of “ Professional Services” , com m it t ed or alleged t o have been com m it t ed by or on your behalf in t he conduct of any of your business act ivit ies. This exclusion shall not apply t o “ Bodily I nj ury” or “ Propert y Dam age” t hat result s from such “ Professional Services” in connect ion wit h your capacit y as an Engineering/ Procurem ent / Cont ract or ( EPC) . A sub lim it of USD 8,000,000 will apply in excess of USD 2,000,000 each and every “ Occurrence” in respect of such “ Bodily I nj ury” or 69 “ Propert y Dam age” except where coverage is provided under policy num ber LB0710358. The sub lim it of USD 8,000,000 will form part of t he USD 25,000,000 General Aggregat e referred t o in I t em 6b) of t he Declarat ions. “ Professional Services” wherever used in t his endorsem ent m eans t he preparat ion or approval of audit s, account s, m aps plans, opinions, report s, surveys, designs or specificat ions and supervisory, inspect ion, engineering or dat a processing services. ECF# 338- 1, p. 48. B&V also subm it s AEP’s 2009 let t ers t o B&V alleging B&V’s errors in design and m at erial select ion result ed in defect ive int ernal JBR com ponent s. ECF# # 338- 8 and 338- 9. B&V cont ends t hese allegat ions t rigger t he basic insuring agreem ent for a claim under Endorsem ent 27 for EPC proj ect s. I n it s reply, B&V recognizes t hat “ aspect s of it s Endorsem ent 27 claim present fact issues about which t he part ies disagree” and clarifies t hat it s m ot ion is not seeking a j udgm ent on coverage of it s professional services claim . ECF# 346, p. 17. I nst ead, B&V want s t he court only t o det erm ine now, “ based on t he undisput ed Policy language, t hat t he Endorsem ent 27 sublim it of coverage is not lim it ed t o one general aggregat e ( as argued by Aspen) but t hat t he sublim it applies t o each ‘separat e and dist inct ’ aggregat e for each Nam ed Proj ect in accordance wit h Endorsem ent 36.” I d. at p. 17. Based on t his “ clarificat ion” in B&V’s reply, t he court will address only t his issue over int erpret ing t he policy language on t he applicabilit y of t he sublim it t o one general aggregat e or also t o each general aggregat e for t he nam ed proj ect s in Endorsem ent 36. B&V asks t he court t o read Endorsem ent 27’s provision of t he sublim it “ form [ ing] part of t he USD 25,000,000 General Aggregat e referred 70 t o in I t em 6b) of t he Declarat ions” as subj ect t o Endorsem ent 36 which am ends it em 6 of t he Declarat ions. Specifically, Endorsem ent 36 provides for “ a separat e and dist inct aggregat e for each proj ect ” nam ed in Endorsem ent 35. ECF# 284- 1, p. 60. I t also expressly am ends “ I t em s ( 4) and ( 6) of t he Declarat ion Page.” I d. The Declarat ions Page accordingly reflect s a “ General Aggregat e Lim it ” of $25 m illion and a “ Per Proj ect Aggregat e, in respect of t he 13 Nam ed Proj ect s Only, for t he proj ect period ( see endorsem ent s no. 35 and 36) ” of $25 m illion. ECF# 284- 1, p. 2. B&V furt her point s t o Sect ion V of t he Policy discussing Lim it s which includes t he following: I f t here is a lim it st at ed in I t em 6( b) of t he Declarat ions for t he General Aggregat e Lim it ( ot her t han t he per Proj ect Aggregat e in respect of t he 13 nam ed Proj ect s and t he Product s/ Com plet ed Operat ions) t hat am ount is t he m ost we will pay for all dam ages under I NSURI NG AGREEMENT 1 except for: . . . ( 2) inj ury or dam age included in t he “ Product s/ Com plet ed Operat ions Hazard” ( 3) inj ury or dam age in respect of t he 13 nam ed Proj ect s and ( 4) coverages included in t he “ underlying I nsurance” t o which no underlying aggregat e lim it applies. ECF# 338- 1, p. 12. So t hat each of t hese provisions have m eaning, B&V argues t hat , “ a separat e $8 m illion sublim it for dam ages in excess of $2 m illion is available for each Occurrence at each Nam ed Proj ect as w ell as for each Occurrence at each rem aining proj ect .” ECF# 338, p. 22. I n effect , t his int erpret at ion would m ean “ $8 m illion of coverage ( in excess of $2m illion) per occurrence but not t o exceed t he $25 m illion General Aggregat e at each JBR list ed in Endorsem ent 36, and separat e sub lim it ed coverage for t he 71 Cardinal proj ect s ( under t he base Policy as such proj ect s are not list ed in Endorsem ent 36) .” I d. Aspen argues t hat t he “ Per Proj ect Aggregat e Lim it ” specified in I t em 6( c) of t he Policy as am ended by Endorsem ent 36 is dist inct from t he “ General Aggregat e Lim it ” specified in I t em 6( b) and t hat Endorsem ent 27 says it is only a “ sublim it ” or “ part of” t he “ General Aggregat e Lim it ” in I t em 6( b) and is not st acked. Aspen argues t hat Endorsem ent 27 does not use or refer t o “ Proj ect ” but only t he “ General” aggregat e lim it . Aspen concludes t he $8 m illion is a sublim it per occurrence and is subj ect t o t he policy’s General Aggregat e Lim it . Aspen reads, “ [ t ] he effect of Endorsem ent 27 is t o cap t he professional liabilit y exposure t o t he General Aggregat e lim it of $25 m illion, depending on t he num ber of occurrences.” ECF# 343, p. 35. Aspen does not address t he Sect ion V provision t hat explicit ly addresses t he lim it s in I t em 6( b) . Sect ion V is significant here, because t his provision essent ially m akes t he “ General Aggregat e Lim it s” in I t em 6( b) subj ect t o “ Per Proj ect Aggregat e Lim it ” in 6( c) . For t he proj ect s nam ed in Endorsem ent 36, t here is st at ed a separat e and dist inct aggregat e lim it along wit h an exem pt ion from t he general aggregat e lim it s in I t em 6( b) . The court agrees wit h B&V t hat t he reasonable conclusion giving effect t o all relevant provisions is t hat t he professional services sublim it applies t o each “ separat e and dist inct 72 aggregat e for each proj ect ” nam ed in Endorsem ent 36. B&V is ent it led t o part ial sum m ary j udgm ent on t his issue. M OTI ON TO AM EN D PRETRI AL ORD ER ( ECF# 3 3 9 ) I n it s order of May 1, 2018, t he dist rict court st at ed, “ Should a part y believe adm inist rat ion of t his case would be enhanced by am endm ent of t he pret rial order based on t he Tent h Circuit ’s ruling, any m ot ions t o am end should follow t he sam e briefing schedule above.” ECF# 335, pp. 5- 6. The court ’s suggest ion was int ended t o assist t he part ies in fram ing t heir m ot ions consist ent wit h what t hey had already out lined as t he issues in t his case. The court did so because of it s fam iliarit y wit h t he part ies’ t endency in prior m ot ion proceedings. At t his j unct ure, t he court ’s part ial sum m ary j udgm ent ruling has m oot ed m uch of t he part ies’ briefing on t his m ot ion. The court will not ask for t he part ies t o brief t his m ot ion again, as t he case will be t ransferred for t rial. Whet her a new pret rial order has adm inist rat ive value is a det erm inat ion t o be m ade aft er t ransfer. I T I S THEREFORE ORDERED t hat Aspen or Excess I nsurers’ m ot ion for sum m ary j udgm ent ( ECF# 340) is denied; I T I S FURTHER ORDERED t hat B&V’s m ot ion for part ial sum m ary j udgm ent ( ECF# 337) is grant ed in part , t hat t he ret ained lim it for t he underlying Zurich insurance has been m et by paym ent or credit for t he applicable lim it s as det erm ined herein, t hat “ ot her insurance” as used in 73 “ Ret ained Lim it ” does not include t he propert y dam age policies issued t o t he JBR owners on which B&V was an addit ional insured, and t hat Endorsem ent 27’s $8 m illion sublim it for dam ages in excess of $2 m illion applies t o each separat e and dist inct $25 m illion aggregat e for each Nam ed Proj ect in Endorsem ent 36, but B&V’s m ot ion is denied in all ot her respect s as st at ed above; I T I S FURTHER ORDERED t hat B&V’s m ot ion t o am end t he pret rial order ( ECF# 339) is denied wit hout prej udice. Dat ed t his 29 t h Day of March, 2019. s/ Sam A. Crow____________________ Sam A. Crow, U.S. Dist rict Senior Judge 74

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