Jannie Nesmith,, et al., Appellants,v.Allstate Insurance Company, Respondent.BriefN.Y.October 15, 2014STATE OF NEW YORK COURT OF APPEALS JANNIE NESMITH, in her representative capacity only as parent and natural guardian of JANNIE PATTERSON, an Infant, and LORENZO PATTERSON, JR., Plaintiffs-Appellants, -against- ALLSTATE INSURANCE COMPANY, Defendant-Respondent. Monroe County Index No.: 10533/2010 Fourth Dep't. Docket No.: CA 12-00182 Court of Appeals Appeal No.: APL-2013-00266 BRIEF OF AMICUS CURIAE UNITED POLICYHOLDERS IN SUPPORT OF PLAINTIFFS-APPELLANTS Submitted by: OF COUNSEL: Amy Bach, Esq. Executive Director United Policyholders 381 Bush St., 8th Fl. San Francisco, CA 94104 Tel: (415) 393-9990 Fax: (415) 677-4170 William G. Passannante, Esq. John G. Nevius, Esq. Nicholas R. Maxwell, Esq. ANDERSON KILL P.C. 1251 Avenue of the Americas New York, NY 10020 Tel: (212) 278-1000 Fax: (212) 278-1733 Attorneys for Amicus Curiae United Policyholders nydocsl-1023658.3 DISCLOSURE STATEMENT OF AMICUS CURIAE Pursuant to Rule § 500.1(0 of the Rules of Practice of the Court of Appeals, amicus curiae United Policyholders advises the Court that it is a non-profit 501(c)(3) consumer organization and that it does not have a parent corporation, subsidiary, or corporate affiliate. nydocs1-1023658.3 TABLE OF CONTENTS Page DISCLOSURE STATEMENT OF AMICUS CURIAE ..................................................................... I STATEMENT OF INTEREST OF AMICUS CURIAE .................................................................... 1 STATEMENT OF THE CASE AND STATEMENT OF FACTS ...................................................... 4 PRELIMINARY STATEMENT ................................................................................................... 4 ARGUMENT ................................................................................................................................. 5 I. INSURANCE POLICIES ARE STANDARD-FORM CONTRACTS OF ADHESION INTERPRETED ACCORDING TO A POLICYHOLDER'S REASONABLE EXPECTATIONS, IN ORDER TO AVOID RENDERING COVERAGE ILLUSORY ................................................................................................. 5 II. ALLSTATE'S INTERPRETATION OF ITS OWN POLICY RENDERS COVERAGE ILLUSORY, IN DEFIANCE OF WILSON'S REASONABLE EXPECTATIONS .............................................................................................................. 9 a. Wilson's Homeowners Policy Is a Typical Standard-Form Policy Sold on a Take-It-Or-Leave-It Basis .................................................................................. 9 b. No Reasonable Policyholder Would Buy Insurance If Certain Types of Losses Were Categorically Excluded from Coverage ........................................ 10 c. Allstate's Interpretation of Its Own Policy Renders Coverage Illusory ............. 11 CONCLUSION ............................................................................... 13 nydocsl-1023658.3 ii TABLE OF AUTHORITIES Page CASES Ace Wire & Cable Co., Inc. v. Aetna Cas. & Sur. Co., 60 N.Y.2d 390 (1983) ..................................................................................................................... 4, 7 American Home Products Corp. v. Liberty Mut. Ins. Co., 565 F. Supp. 1485 (S.D.N.Y. 1983) ...................................................................................................6 Dean v. Tower Ins. Co. of N Y, 19 N.Y.3d 704 (2012) ................................................................................................................... 7, 10 Diamond v. Mutual Life Ins. Co., 75 Misc. 2d 443 (N.Y. Civ. Ct. 1973), rev'd on other grounds, 77 Misc. 2d 528 (App. Term. 1st Dep't 1974) ..........................................................................................................................6 Eagle Star Ins. Co. v. International Proteins Group, 45 A.D.2d 637 (1st Dep't 1974) ........................................................................................................ 6 Erlichman v. Encompass Ins. Co., 4 Misc. 3d 1002(A) (N.Y. Sup. Ct. 2004) ......................................................................................... 8 Garnar v. New York Cent. Mut. Fire Ins. Co., 96 A.D.3d 715 (2d Dep't 2012) ......................................................................................................... 8 Haber v. St. Paul Guardian Ins. Co., 137 F.3d 691 (2d Cir. 1998) ................................................................................................................ 8 Hanover Ins. Co. v. Losquadro, 157 Misc. 2d 1014 (N.Y. Sup. Ct. 1993) .......................................................................................... 5 Kosierowski v. Madison Life Ins. Co., 31 A.D.2d 930 (2d Dep't 1969) ..................................................................................................... 4, 5 Pan Am World Airways Inc. v. Aetna Cas. & Sur. Co., 505 F.2d 989 (2d Cir. 1974) ................................................................................................................ 6 Satz v. Massachusetts Bonding & Ins. Co., 243 N.Y. 385 (1926) ..................................................................... 6 Thomas J. Lipton, Inc. v. Liberty Mut. Ins. Co., 34 N.Y.2d 356 (1974) .......................................................................................................................... 9 nydocsl -1023658.3 iii STATEMENT OF INTEREST OF AMICUS CURIAE United Policyholders, a non-profit 501(c)(3) organization founded in 1991, serves as an independent information resource and a voice for insurance consumers in all 50 states. Donations, foundation grants and volunteer labor fuel the organization. United Policyholders' Board of Directors includes the former Chief Justice of the Arizona Supreme Court, as well as the former Washington State Insurance Commissioner. United Policyholders divides its work into three program areas: (1) Roadmap to Recovery provides tools and resources that help individuals and businesses solve insurance problems that can arise after an accident, illness, disaster, or other adverse event; (2) the Roadmap to Preparedness program promotes insurance and financial literacy as well as disaster preparedness; and (3) the Advocacy and Action program advances policyholders' interests in courts of law, legislative and public policy forums, and in the media. United Policyholders participates in the proceedings of the National Association of Insurance Commissioners ("NAIC") as an official consumer representative. United Policyholders interfaces with the Insurance Division of the Department of Financial Services when providing disaster recovery and claim help to New York State residents through a "Roadmap to Recovery" program. United Policyholders maintains an extensive, publically- available library of publications, legal briefs, sample policies, forms, and articles on commercial and personal lines insurance products, coverage, and the claims process on its website, www.unitedpolicyholders.org. In addition to serving as a resource for individual and commercial policyholders throughout New York State, United Policyholders monitors legal and marketplace developments in the Empire State. United Policyholders has participated in legislative and other public forums nydocsl-1023658.3 related to home, auto and title insurance rates and claim practices, and is currently working in partnership with the Touro Law Center on Long Island on Superstorm Sandy recovery. United Policyholders seeks to assist courts throughout the United States by filing amicus curiae briefs in insurance cases. United Policyholders has filed ten briefs in the New York Court of Appeals.' Most recently, United Policyholders filed an amicus curiae brief in K2 Investment Group, LLC and ATAS Management Group, LLC v. American Guarantee & Liability Company, Docket No. APL-2012-00055. United Policyholders has also submitted eight amicus curiae briefs to the United States Court of Appeals for the Second Circuit,2 as well as amicus curiae briefs in numerous cases before the United States Supreme Court.3 The U.S. Supreme Court referenced United Policyholders' amicus curiae brief in its opinion in Humana, Inc. v. Forsyth, 525 U.S. 299 (1999). United Policyholders has a vital interest in ensuring that insurance companies fulfill the promises they make to their New York policyholders. While insurance companies profit from I K2 Investment Group, LLC and ATAS Management Group, LLC v. American Guarantee & Liability Company Docket No. APL-2012-00055; U.S. Fid. & Guar, Co. v. Am, Re-Insurance Co., 21 N.Y.3d 923 (2013); Bi-Economy Mkt., Inc. v. Harleysville Ins. Co. of N.Y., 10 N.Y.3d 187 (2008); U.S. Underwriters Ins. Co. v. City Club Hotel, LLC, 3 N.Y.3d 592 (2004); Belt Painting Corp. v. TIG Ins. Co., 100 N.Y.2d 377 (2003); Consol. Edison Co. v. Allstate Ins. Co., 98 N.Y.2d 208 (2002); Travelers Cas. and Sur. Co. v. Certain Underwriters at Lloyd's of London, 96 N.Y.2d 583 (2001); A-One Oil, Inc. v. Mass. Bay Ins. Co., 92 N.Y.2d 814 (1998); Am. Home Assurance Co. v. Intl Ins. Co., 90 N.Y.2d 433 (1997); Town of Harrison v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 89 N.Y.2d 308 (1996). 2 Woodhams v. Allstate Fire and Cas. Co., 453 F. App'x 108 (2d Cir. 2012); Schwartz v. Liberty Mutual Insurance Co., 539 F.3d 135 (2d Cir. 2008); Harris v. First Unum Life Ins. Co., 202 F. App'x 479 (2d Cir. 2006); Duane Reade, Inc. v. St. Paul Fire & Marine Ins. Co., 411 F.3d 384 (2d Cir. 2005); Allstate Ins. Co. v. Serio, 261 F.3d 143 (2d Cir. 2001); Shapiro v. Berkshire Life Ins. Co., 212 F.3d 121 (2d Cir. 2000); United States v. Brennan, 183 F.3d 139 (2d Cir. 1999); Stonewall Ins. Co. v. Asbestos Claims Mgmt. Corp., 73 F.3d 1178 (2d Cir. 1995). 3 See, e.g., U.S. Airways, Inc. v. McCutchen, 133 S. Ct. 1537 (U.S. 2013); Fuller-Austin Insulation Co., v. Highlands Ins. Co., 549 U.S. 946 (2006); Philip Morris USA v. Mayola Williams, 547 U.S. 1162 (2006); Aetna Health, Inc. v. Davila, 542 U.S. 200 (2004); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003); Rush Prudential HMO v. Debra Moran, 533 U.S. 948 (2001), aff'd, 536 U.S. 355 (2002); Humana Inc. v. Forsyth, 525 U.S. 299 (1999). 2 nydocs1-1023658.3 their assumption of risk, businesses and individuals rely on insurance to protect property and livelihoods. United Policyholders seeks to prevent insurance companies from shifting risk back to policyholders through schemes that are not authorized by insurance contracts or public policy. The organization works to counterbalance the widely-represented interests of the insurance industry by advocating for policyholders—large and small—in courts throughout the country. In the case at bar, United Policyholders appears as amicus curiae to address matters before the Court concerning the interpretation of frequently applied coverage limitations in standard-form homeowners insurance policies. These issues are of significance to individuals purchasing homeowners policies and other consumer insurance policies nationwide, well beyond the specific facts of this litigation. Unpaid volunteer counsel performed all of the legal research and writing in this brief, and no party to this appeal participated in the drafting of this brief or funded this work. nydocs1-1023658.3 3 STATEMENT OF THE CASE AND STATEMENT OF FACTS Amicus curiae adopts the Statement of the Case and Statement of Facts in Plaintiffs- Appellants' brief filed December 17, 2013. PRELIMINARY STATEMENT For very sound reasons, courts in this state interpret insurance policies according to "the reasonable expectation and purpose of the ordinary businessman." Ace Wire & Cable Co., Inc. v. Aetna Cas. & Sur. Co., 60 N.Y.2d 390, 398 (1983) (citing Bird v. St. Paul Fire & Marine Ins. Co., 224 N.Y. 47, 51 (1918)). The primary reason for this approach is that insurance serves a very important purpose in people's economic affairs, yet insurance policies are contracts of adhesion whose terms are invisible to the consumer until after they are executed. So the buyer's reasonable expectations must carry heightened weight. A decades-old body of case law governs the integrity of the products that insurers sell and imposes duties upon them that are higher than those imposed on their commercial peers. Moreover, New Yorkers who want to drive cars, operate businesses or borrow money to purchase a home are legally required to buy insurance. So not only are insurance policies contracts of adhesion, but consumers have no choice but to buy them as part of most major financial transactions — including owning property and operating a business. The "reasonable expectations" doctrine is of paramount importance in the context of standard-form policies sold to unsophisticated individual policyholders on a "take-it-or-leave-it" basis. The vast majority of homeowners, including the policyholder at issue here, are forced to accept the standard terms drafted by the insurance company from which they purchase coverage. Policyholders must be able to rely on courts to ensure that when they purchase an insurance policy, "the prime example of a contract of adhesion," their reasonable expectations will be honored. Kosierowski v. Madison Life Ins. Co., 31 A.D.2d 930, 931 (2d Dep't 1969). nydocsl-1023658.3 4 In the case at bar, Defendant Allstate Insurance Company ("Allstate") seeks to deny coverage for injuries sustained by Plaintiffs, two children exposed to lead paint in an apartment their family rented from the Allstate policyholder in question, Tony Wilson ("Wilson"). Allstate's purported ground for denial is that the children's injuries arise from the "same general conditions" as prior tenants of the building, even though the prior children were from a different family, lived in the building during a different policy period, and were injured before Wilson conducted significant lead paint abatement. Amicus curiae respectfully submits that denial for these reasons is in clear violation of Wilson's and other reasonable policyholders' expectations in purchasing homeowners insurance. ARGUMENT I. INSURANCE POLICIES ARE STANDARD-FORM CONTRACTS OF ADHESION INTERPRETED ACCORDING TO A POLICYHOLDER'S REASONABLE EXPECTATIONS, IN ORDER TO AVOID RENDERING COVERAGE ILLUSORY The suggestion that an insurance policy arises from a meeting of the minds between policyholder and insurance company, like any other contract, is a fiction.4 Unsophisticated individual personal-lines policyholders are on significantly weaker footing than the insurance companies from which they purchase coverage. Accordingly, "the insurance contract is perhaps the prime example of a contract of adhesion." Kosierowski v. Madison Life Ins. Co., 31 A.D.2d 930, 931 (2d Dep't 1969). There is a "clear absence of choice on the part of the policyholder" attempting to purchase insurance. Hanover Ins. Co. v. Losquadro,157 Misc. 2d 1014, 1020 4 Allstate sold the homeowners policies in question to Tony Wilson, who owned the two-family home where Plaintiffs were exposed to lead paint. Wilson is not a party to this litigation because he was released from liability in exchange for Allstate granting Plaintiffs standing to sue Allstate in this matter. Amicus Curiae writes in support of Plaintiffs as the de facto Allstate policyholders and in support of the millions of people who purchase homeowners insurance every year to protect premises they own and lease. 5 nydocsJ-1023658.3 (N.Y. Sup. Ct. 1993). A New York court explained why insurance policies should be interpreted differently than other contracts: Almost every insurance policy contract is adhesive. Every policyholder is seeking, and paying for protection which meets a necessary individual and societal need. The realities of modern life require the procurement of health, hospital, surgical and numerous other types of insurance coverage to ward off individual financial catastrophe, and to protect society at large from numerous and harmful results and burdens of such a loss. It is equally realistic to recognize that no insurance policyholder actually engages in bargaining or negotiation as to the terms of his insurance policy. This industry is more unique than almost any other in presenting a contract to its consumer on a 'take it or leave it basis.' The lack of the ability of the policyholder to negotiate his contract with the insurance carrier goes far beyond the common definition of adhesion which acknowledges a lack of social or economic equality in the bargaining process. Diamond v. Mutual Life Ins. Co., 75 Misc. 2d 443, 444 (N.Y. Civ. Ct. 1973), rev 'd on other grounds, 77 Misc. 2d 528 (App. Term. 1st Dep't 1974). One insurance commentator notes that typical principles of contract law, which depend on the idea of mutual assent, are inapplicable in the insurance context: . . . insurance policies are adhesion contracts. Their terms are not the result of formal assent, but are imposed; insurance policies are, for the most part, form contracts. The existence of a negotiated consent, therefore, on which the law of contracts is based, is a fiction in the case of most policies. 2 Insurance Claims and Disputes § 6:3 (6th ed. Allan D. Windt, ed.). As a result of the unequal bargaining positions of policyholder and insurance company, New York courts have treated insurance policies as de facto contracts of adhesion for decades. See, e.g., Pan Am World Airways Inc. v. Aetna Cas. & Sur, Co., 505 F.2d 989, 1002-03 (2d Cir. 1974); American Home Products Corp. v. Liberty Mut. Ins. Co., 565 F. Supp. 1485, 1492 (S.D.N.Y. 1983); Eagle Star Ins. Co. v. International Proteins Group, 45 A.D.2d 637, 650-51 (1st Dep't 1974); see also Satz v. Massachusetts Bonding & Ins. Co., 243 N.Y. 385, 393 (1926) 6 nydocs1-1023658.3 (this Court acknowledging "[t]he tendency on the part of the courts to treat insurance contracts as standing in a class by themselves" and asking "What do they know of the law of the insurance contract who only the law of contract know?"). To reach results that take into account that the primary purpose of insurance is to insure, in light of the unequal bargaining power of parties to an insurance contract, various states, including New York, apply the "reasonable expectations" doctrine. The doctrine protects policyholders sold standard-form policies by insurance companies on a take-it-or-leave-it basis, by taking into account the scope of protection the policyholder believed she was purchasing: The reasonable expectations rule, therefore, abandons the general contract principle that the insured's legitimate expectations are necessarily governed and limited by the terms of the policy. That principle will, instead, be applied only when it is fair to do so. As a result, in a proper case, an insured may be held to be entitled to coverage despite unambiguous language in the policy to the contrary. 2 Insurance Claims and Disputes at § 6:3 (emphasis added). This Court has long held that insurance contracts must be interpreted according to "the reasonable expectation and purpose of the ordinary businessman." Ace Wire & Cable Co., Inc. v. Aetna Cas. & Sur. Co., 60 N.Y.2d 390, 398 (1983) (citing Bird v. St. Paul Fire & Marine Ins. Co., 224 N.Y. 47, 51 (1918)). This is especially true in the case of unsophisticated individual policyholders, such as those purchasing homeowners insurance. This Court recently relied on the reasonable expectations doctrine to determine that the term "residence premises" in a homeowners policy is ambiguous. Dean v. Tower Ins. Co. of 1V.Y., 19 N.Y.3d 704 (2012). Since "residence premises" was not defined in the homeowners policy and the policyholder had a reasonable expectation of coverage under the facts at hand, this Court deemed the term ambiguous and denied the insurance company's motion for summary judgment. Id. at 709. nydocs1-1023658.3 7 Various other New York courts have relied on the doctrine of reasonable expectations when evaluating homeowners insurance disputes. See, e.g., Garnar v. New York Cent. Mut. Fire Ins. Co., 96 A.D.3d 715, 716 (2d Dep't 2012) (denying insurance company summary judgment motion in homeowners insurance dispute); Erlichman v. Encompass Ins. Co., 4 Misc. 3d 1002(A), at *3 (N.Y. Sup. Ct. 2004) (same); Haber v. St. Paul Guardian Ins. Co., 137 F.3d 691, 697 (2d Cir. 1998) (interpreting homeowners policy exclusion in policyholder's favor). An additional interpretive touchstone in insurance cases is to avoid interpreting insurance policies in a way that renders coverage illusory. The court in Slayko v. Security Mutual Insurance Co. explained the clear disconnect between illusory coverage and a policyholder's reasonable expectations: Illusory, or nearly so, coverage is not favored at law. Construction of a clause so broad that it would appear to exclude what, as a practical matter, would be some of the largest foreseeable elements of damages would render the coverage nearly illusory ... [t]o construe an insuring clause as incapable of affording coverage for perils reasonably intended, by virtue of exclusionary language, is illogical. 183 Misc. 2d 688, 693, 705 N.Y.S,2d 528, 532 (N.Y. Sup. Ct. 2000), rev'd on other grounds, 98 N.Y.2d 289 (internal citations omitted). In one oft-cited case, this Court emphatically rejected an insurance company's argument not because it did not accord with the policy language, but rather because the insurance company's preferred reading would defy the policyholder's reasonable expectations: To say that the categories of damage claimed here by [the third party suing the policyholder] do not fall within such coverage would appear to exclude what, as a practical matter, would usually be some of the largest foreseeable elements of such damage. Such an interpretation, in the absence of claims for damages resulting from consumer injury, would render the coverage nearly illusory. . . . We cannot think that, given the economic and factual setting in which these policies were written, an ordinary business man in applying for insurance and reading the language of these policies nydocs1-10236583 8 when submitted, would not have thought himself covered against precisely the damage claims now asserted by [the third party]. Thomas J. Lipton, Inc. v. Liberty Mut. Ins. Co., 34 N.Y.2d 356, 361 (1974). Even where the policyholder was a sophisticated corporation, this Court's analysis was undergirded by an assessment of what the policyholder reasonably expected would be covered under the insurance policy it purchased. II. ALLSTATE'S INTERPRETATION OF ITS OWN POLICY RENDERS COVERAGE ILLUSORY, IN DEFIANCE OF WILSON'S REASONABLE EXPECTATIONS a. Wilson's Homeowners Policy Is a Typical Standard-Form Policy Sold on a Take-It-Or-Leave-It Basis No type of insurance policy better exemplifies a contract of adhesion than a homeowners policy. Allstate sells the same form homeowners policies tens of thousands of times every year. The Allstate Deluxe Homeowners Policy purchased by Wilson, the property owner and Allstate policyholder in this action, consists in its entirety of a declarations page and the full Form AU2069, the Allstate standard policy template. Wilson did not negotiate to include any endorsements, remove any coverage limitations, or make any other changes that would differentiate his Allstate policy from any other. To quote the definition of contracts of adhesion cited above, the terms of the Allstate policy at issue here "are not the result of formal assent, but are imposed." Wilson is precisely the type of policyholder envisioned by the rule that standard-form policies are interpreted with special rules. Wilson (and therefore Plaintiffs, standing in his shoes) are entitled to the full benefit of the New York rules of construction interpreting such standard-form policies consistent with Wilson's reasonable expectations of coverage for the very sort of claim at issue here. 9 nydocs1-1023658.3 b. No Reasonable Policyholder Would Buy Insurance If Certain Types of Losses Were Categorically Excluded from Coverage Allstate's position, as adopted by the Fourth Department, is that if Plaintiffs did not show irrefutable evidence that Wilson removed the lead paint in its entirety after the Suarez/Young children moved out, then Plaintiffs were necessarily injured by the "same general conditions" as the Suarez/Young children. In other words, for purposes of insurance coverage, Wilson's alleged failure to remove every single ounce of lead paint in the building before the Nesmiths moved in was equivalent to Wilson having done nothing at all. Even if Wilson partially remediated the condition but in doing so discovered new lead paint (as the Fourth Department acknowledged he may have), there still would be no coverage. In other words, if there is any possibility of a nexus between the cause of injuries during policy year 1 and the cause of injuries in any subsequent policy year, even if the injuries are to different children from different families living in the building at separate times, coverage is only available under policy year 1. This is the prototypical case for proper application of New York's rules of construction of insurance policies. Just like the term "residence premises" was not defined in the homeowners policy before this Court in Dean v. Tower Ins. Co. ofNY , "same general conditions" is not defined in Wilson's policy. The words "same general conditions" are too malleable for Allstate to prevail on its argument that the current fact pattern is wholly and clearly within their exclusionary scope. If Wilson knew that his later Allstate policies would not cover lead paint injuries occurring after a good faith remediation effort because of injuries preceding the remediation, he certainly would not have continued purchasing homeowners insurance from Allstate after the Suarez/Young infants were injured. Wilson's reasonable expectation was that injuries to children from one family occurring during one policy period would not preclude coverage for nydocsl-1023658.3 10 separate injuries to children from a separate family occurring exclusively during separate policy periods. According to Allstate, Wilson necessarily did not have coverage for any subsequent lead paint injuries based on the Suarez/Young children's injuries. If Allstate is correct, Wilson must have been willingly paying a premium to get nothing in return. This, of course, does not accord with any reasonable policyholder's expectations.5 Allstate might very simply and clearly have added an exclusion to the later policy excluding coverage for a subsequent claimant at the location, or at least included a definition of "same general conditions" to guide policyholders like Wilson. They did not. If Allstate's interpretation of its standard form homeowners policy is accepted, policyholders like Wilson, who must repeatedly contend with possible lead paint hazards, are stuck with no coverage for later-in-time injuries and no realistic way to bargain with Allstate to buy such coverage in the future. c. Allstate's Interpretation of Its Own Policy Renders Coverage Illusory According to Allstate and the Fourth Department, as stated above, policyholders like Wilson are only covered for subsequent lead paint injuries if they can prove that after the initial lead paint injuries, the lead paint hazard was fully remediated. This argument, however, renders coverage illusory: if the policyholder could prove that every ounce of lead paint had been removed after the first lead paint injuries, he would no longer have any reason to purchase liability insurance which protects against alleged lead paint injuries. In other words, according to Allstate and the Fourth Department, Wilson and similarly situated policyholders are entitled to coverage only if they first prove that they will never need it. 5 Allstate's position, if accepted, would have the perverse effect of encouraging policyholders to purchase homeowners coverage from different insurance companies every year, in order to avoid Allstate's attempt to reach into the future and preclude coverage under any policies subsequently purchased by it. 11 nydocs1-1023658.3 If the Fourth Department's holding is affirmed by this Court, as Allstate urges, the policy's "same general conditions" provision renders coverage for lead paint injuries illusory whenever a prior lead paint injury has occurred, no matter who suffers the later injuries and how long after the first injuries they occur. Such malleable language does not fairly exclude the liabilities asserted in this case. While the subsequent policies in question here were sold just two years after the initial policy, Allstate's position is that in the absence of irrefutable proof of complete remediation, a policyholder could continue purchasing policies indefinitely and have no possibility of receiving coverage under any of them. In an effort to disprove that its interpretation of Allstate's policy renders coverage illusory, the Fourth Department suggested that Plaintiffs could have had coverage under Mr. Wilson's later policies if they had shown that new lead paint used in the building after the Suarez/Young infants departed was the cause of Plaintiffs' injuries. But immediately following this suggestion, the Court acknowledged that that scenario could never happen. Lead paint was banned decades ago and cannot be purchased. As the Fourth Department basically admitted, the minute possibility of new lead paint somehow being used in a policyholder's building does not somehow make Allstate's interpretation tenable, reasonable or fair. nydocs1-1023658.3 12 ANDERSON KIL P. By: CONCLUSION For all of the foregoing reasons, amicus curiae United Policyholders respectfully requests that this Court reverse the decision of the Appellate Division, Fourth Department. Dated: December 20, 2013 New York, New York Respectfully submitted, William G. iante, Esq. John G. Ne s, Esq. Nicholas R. Maxwell, Esq. New York, NY 10020 Tel: (212) 278-1000 Fax: (212) 278-1733 Attorneys for Amicus Curiae United Policyholders OF COUNSEL: Amy Bach, Esq. Executive Director United Policyholders 381 Bush St., 8th Fl. San Francisco, CA 94104 Tel: (415) 393-9990 Fax: (415) 677-4170 nydocs1-1023658.3 13