Michael J. Carlson, Sr.,, Appellant,v.American International Group, Inc., et al., Respondents.BriefN.Y.October 18, 2017To be Argued by: KEVIN D. SZCZEPANSKI (Time Requested: 15 Minutes) APL-2016-00041 Appellate Division Docket Nos. CA 13-01599, and CA 14-02027 Niagara County Clerk’s Index No. E143033/11 Court of Appeals of the State of New York MICHAEL J. CARLSON, SR., Individually and as Administrator of the Estate of CLAUDIA D’AGOSTINO CARLSON, Deceased, and as Assignee of WILLIAM PORTER, Plaintiff-Appellant, – against – AMERICAN INTERNATIONAL GROUP, INC. AIG DOMESTIC CLAIMS, INC., Defendants, AMERICAN ALTERNATIVE INSURANCE CO., Defendant-Respondent, NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA and DHL EXPRESS (USA), INC., f/k/a DHL WORLDWIDE EXPRESS, INC., Defendants. (For a continuation of caption, see inside cover.) BRIEF FOR DEFENDANTS-RESPONDENTS Dated: June 2, 2016 HODGSON RUSS, LLP Kevin D. Szczepanski, Esq. Peter H. Wiltenburg, Esq. Attorneys for Defendants/Defendant- Respondents American International Group, Inc., AIG Domestic Claims, Inc. and National Union Fire Insurance Company of Pittsburgh, PA The Guarany Building, 140 Pearl Street Buffalo, New York 14202 Tel.: (716) 856-4000 Fax: (716) 849-0349 __________________________________________________________________ MICHAEL J. CARLSON, SR., Individually and as Administrator of the Estate of CLAUDIA D’AGOSTINO CARLSON, Deceased, and as Assignee of WILLIAM PORTER, Plaintiff-Appellant, – against – AMERICAN INTERNATIONAL GROUP, INC.AIG DOMESTIC CLAIMS, INC., AMERICAN ALTERNATIVE INSURANCE CO., NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, DHL EXPRESS (USA), INC., f/k/a DHL WORLDWIDE EXPRESS, INC., Defendants-Respondents. __________________________________________________________________ DISCLOSURE STATEMENT Defendants-Respondents American International Group, Inc. (“AIG, Inc.”), AIG Domestic Claims, Inc., now known as AIG Claims, Inc. (“AIG Claims”), and National Union Fire Insurance Company of Pittsburgh, Pa. (“National Union”) state the following under Rule 500.1(f): AIG, Inc. is a publicly traded entity. A list of its significant subsidiaries is attached as Appendix A. AIG has no parents, and it has no affiliates other than the subsidiaries identified in Appendix A. No publicly held entity owns more than 10 percent of the stock of AIG, Inc. AIG Claims is a direct, wholly owned subsidiary of AIG Property Casualty Inc., which is a wholly owned subsidiary of AIUH LLC, which is a wholly owned subsidiary of AIG, Inc. Health Direct, Inc. is a subsidiary of AIG Claims. AIG Claims has no affiliates other than the parents and subsidiaries identified here. National Union is a wholly owned subsidiary of AIG Property Casualty U.S., Inc., which is a direct, wholly owned subsidiary of AIG Property Casualty Inc., which is a wholly owned subsidiary of AIUH LLC, which is a wholly owned subsidiary of AIG, Inc. American International Overseas Association, American International Realty Corporation, National Union Fire Insurance Company of Vermont, and Pine Street Real Estate Holdings Corporation are subsidiaries of National Union. National Union has no affiliates other than the parents and subsidiaries identified here. RELATED LITIGATION In July 2015, the Fourth Department held that the two policies National Union had issued to DHL did not cover MVP or Porter for the judgment entered against it in the underlying tort action. Four months later, in November 2015, MVP notified National Union under these policies, demanding coverage for the judgment and threatening an action against National Union. After disclaiming coverage, in December 2015 National Union brought a declaratory-judgment action against MVP in Erie County,1 seeking to enforce the Fourth Department’s decision. In February 2016, MVP answered National Union’s complaint. On February 18, this Court granted Carlson leave to appeal. The next day, February 19, MVP filed a separate action in New York County against National Union, several other AIG-member companies, DHL, and another DHL insurer.2 In that action, MVP seeks, among other things, a judicial declaration of the parties’ rights and duties under the insurance policies National Union issued to DHL. 1 National Union Fire Ins. Co. of Pittsburgh, Pa. v. MVP Delivery and Logistics, Inc., Index No. 814289/2015, Supreme Court, Erie County. 2 MVP Delivery and Logistics, Inc. v. American International Group, Inc. et al., Index No. 650882/2016, Supreme Court, New York County. i TABLE OF CONTENTS PAGE(S) Statement of Jurisdiction ............................................................................................ 1 Questions Presented ................................................................................................... 1 Summary of Argument .............................................................................................. 2 Statement of Facts ...................................................................................................... 4 A. The Cartage Agreement ................................................................................... 4 B. The National Union Policies ............................................................................ 7 C. The Underlying Accident ................................................................................ 9 D. The Underlying Action .................................................................................... 9 E. Cincinnati’s Coverage Action and Settlement Payment to the Plaintiff ....... 11 F. National Union’s Coverage Position ............................................................. 11 G. The Plaintiff’s Pre-Action Discovery ............................................................ 12 H. This Coverage Action .................................................................................... 12 I. National Union’s Motion to Dismiss, Further Discovery, and the Decisions Below ....................................................................................................................... 13 Standard of Review .................................................................................................. 14 Argument.................................................................................................................. 15 1. The Appellate Division properly dismissed the first cause of action because the policies do not cover the underlying judgment. ................................................. 15 A. Documentary evidence conclusively establishes that the MVP van was neither “hired” by DHL nor being used with its permission when the accident happened. ................................................................................................................. 15 1. The MVP van was not “hired” by DHL. ....................................................... 18 2. The MVP van was not being used with DHL’s permission. ......................... 27 B. Trial testimony in Carlson shows that DHL lacked any control over the MVP van. ................................................................................................................. 32 C. The Appellate Division’s holding in Carlson v. Porter precludes the plaintiff from relitigating whether DHL controlled the MVP van. ....................................... 32 TABLE OF CONTENTS PAGE(S) ii D. Underwriting information is inadmissible and irrelevant. ............................. 33 E. Other cases on which the plaintiff relies are either inapplicable or distinguishable. ........................................................................................................ 39 F. Summary ........................................................................................................ 45 2. The Appellate Division properly dismissed the fourth cause of action under section 349 because this private, insurance-policy dispute does not involve a consumer-oriented act or practice. ........................................................................... 45 A. The plaintiff has failed to, and cannot, plead a consumer-oriented act or practice. .................................................................................................................... 46 B. The plaintiff does not contend that the AIG defendants made the alleged misrepresentation constituting the deceptive practice—a defect fatal to his cause of action. ................................................................................................................... 48 C. The cases to which the plaintiff cites are inapposite. .................................... 49 3. The dismissal of the plaintiff’s causes of action for fraud and bad faith should be affirmed because the plaintiff has failed to, and cannot, plead the elements of either cause of action. ........................................................................... 53 A. The plaintiff’s causes of action for fraud were properly dismissed because he failed to state the circumstances in detail and, in any event, the evidence shows that National Union could not have made the alleged representation. ................... 53 B. The plaintiff’s cause of action for bad faith was properly dismissed as well.56 4. The plaintiff does not challenge the dismissal of his complaint against AIG, Inc. and AIG Claims. ............................................................................................... 57 Conclusion ............................................................................................................... 58 iii TABLE OF AUTHORITIES Page(s) FEDERAL CASES Alexander v. FedEx Ground Package System, Inc., 765 F.3d 981 (9th Cir. 2014) ...................................................................................................44 Canal Ins. Co. v. Great W. Cas. Co., 2013 U.S. Dist. LEXIS 133344 (D. Minn. Sept. 18, 2013) .....................................................43 Chicago Ins. Co. v. Farm Bureau Ins. Co., 929 F.2d 372 (8th Cir. 1991) .............................................................................................20, 23 Kresse v. Home Ins. Co., 765 F.2d 753 (8th Cir. 1985) .......................................................................................39, 40, 44 Luizzi v. Pro Transport, Inc., 02 CV 5388, 2013 U.S. Dist. LEXIS 107566 (E.D.N.Y. July 31, 2013) ....................40, 41, 42 Old Republic Ins. Co. v Stratford Ins. Co., 777 F.3d 74 (1st Cir. 2015) ....................................................................................36, 37, 38, 39 Toops v. Gulf Coast Marine Inc., 72 F.3d 483 (5th Cir. 1996) ...............................................................................................20, 23 United States Fire Ins. Co. v. Ben Ali, 198 F. Supp. 2d 1313 (S.D. Fla. 2002) ..............................................................................20, 23 STATE CASES B&W Heat Treating Co. v. Hartford Fire Ins. Co., 23 A.D.3d 1102 (4th Dep’t 2005) ............................................................................................16 Blue Cross & Blue Shield of N.J., Inc. v. Phillip Morris USA, Inc., 3 N.Y.3d 200 (2004) ................................................................................................................51 Carlson v. American Int’l Group, Inc., 130 A.D.3d 1479 (4th Dep’t 2015) ..........................................................................3, 14, 27, 57 Carlson v. Porter, 53 A.D.2d at 1131 ..............................................................................................................31, 33 Carlson v. Porter, 53 A.D.3d 1129 (2008) ..........................................2, 3, 4, 10, 11, 28, 29, 31, 32, 41, 43, 45, 58 TABLE OF AUTHORITIES PAGE(S) iv Colon v. Rent-A-Ctr., 276 A.D.2d 58 (1st Dep’t 2000) ..............................................................................................34 Cooper v. New York Cent. Mut. Fire Ins. Co., 72 A.D.3d 1556 (4th Dep’t 2010) ................................................................................46, 47, 53 Craig v. Ground Package System, Inc., 335 P.3d 66 (Kan. 2014) ..........................................................................................................44 Dairylea Cooperative Inc. v. Rossal, 64 N.Y.2d 1 (1984) ..............................................................................18, 19, 20, 23, 24, 27, 28 Diaz v. New York Downtown Hosp., 99 N.Y.2d 542 (2002) ..............................................................................................................34 Dryden Mut. Ins. Co. v. Goessl, 117 A.D.3d 1512 (4th Dep’t 2014) ..........................................................................................17 Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553 (2009) ..............................................................................................................54 Federal Ins. Co. v. Ryder Truck Rental, Inc., 189 A.D.2d 582 (1st Dep’t 1993) ......................................................................................21, 23 Feliberty v. Damon, 129 A.D.2d 207 (4th Dep’t 1987), aff’d, 72 N.Y.2d 112 (1988) .............................................14 Gaidon v. Guardian Life Ins. Co., 94 N.Y.2d 330 (1999) ..............................................................................................................46 Georgetown Capital Group, Inc. v. Everest Nat’l Ins. Co., 104 A.D.3d 1150 (4th Dep’t 2013) ..........................................................................................17 Held v. Kaufman, 91 N.Y.2d 425 (1998) ..............................................................................................................14 Jacobson Family Investments, Inc. v. National Union Fire Ins. Co. of Pittsburgh, Pa., No. 601325/10, 2012 N.Y. Misc. LEXIS 5752 (Sup. Ct., New York Co., Feb. 27, 2012) ............................................................................................................................16, 27 JD&K Assocs., LLC v. Selective Ins. Group, Inc., 118 A.D.3d 1402 (4th Dep’t 2014) ........................................................................49, 50, 51, 52 TABLE OF AUTHORITIES PAGE(S) v JD&K Assocs., LLC v. Selective Ins. Group, Inc., 38 Misc.3d 1234(A) (Sup. Ct., Onondaga Co., Jan. 24, 2013) ................................................50 Jefferson Insurance Co. v. Travelers Indemnity Co., 92 N.Y.2d 363 (1998) ........................................................................................................25, 26 Leon v. Martinez, 84 N.Y.2d 83 (1994) ..........................................................................................................14, 15 Lumbermens Mut. Casualty Co. v. Morgan, 513 So. 2d 1283 (Fla. Ct. App. 4th Dist. 1987) .......................................................................40 Makuch v. New York Central Mutual Fire Ins. Co., 12 A.D.3d 1110 (4th Dep’t 2004) ................................................................................49, 51, 52 Manchester v. Conrad, 2012 La. App. Unpub.........................................................................................................42, 43 Murdza v. Zimmerman, 99 N.Y.2d 375 (2003) ..............................................................................................................30 New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308 (1995) ..................................................................................................46, 47, 57 Phillips v. Enterprise Transp. Co., 988 So.2d 418 (Miss. Ct. App. 2008) ....................................................................21, 22, 23, 24 Pludeman v Northern Leasing Sys., Inc., 10 N.Y.3d 486 (2008) ..............................................................................................................54 Richmond Farms Dairy, LLC v. National Grange Mut. Ins. Co., 60 A.D.3d 1411 (4th Dep’t 2009) ......................................................................................28, 36 Rocco v. Town of Smithtown, 229 A.D.2d 1034 (4th Dep’t 1996) ..........................................................................................56 Rocon Mfg. v. Ferraro, 199 A.D.2d 999 (4th Dep’t 1993) ............................................................................................16 Sheth v. New York Life Ins. Co., 273 A.D.2d 72 (1st Dep’t 2000) ..............................................................................................51 TABLE OF AUTHORITIES PAGE(S) vi Stutman v. Chemical Bank, N.A., 95 N.Y.2d 24 (2000) ................................................................................................................48 Valley Forge Ins. Co. v. Allstate Indem. Co., 504449/2013, 2014 N.Y. Misc. LEXIS 3366 (Sup. Ct. Kings Co. July 25, 2014) ..................................................................................................................................43, 44 W.W.W. Assocs., Inc. v. Giancontieri, 77 N.Y.2d 157 (1990) ........................................................................................................16, 34 W2001Z/15 CPW Realty, LLC v. Lexington Ins. Co., No. 650593/2010, 2014 N.Y. Misc. LEXIS 349 (Sup. Ct., New York Co., Jan. 22, 2014) ..................................................................................................................................16 Wendt v. Bent Pyramid Prods., LLC, 108 A.D.3d 1032 (4th Dep’t 2013) ....................................................................................23, 33 FEDERAL STATUTES V&T Law § 128 .............................................................................................................................29 V&T Law § 388(1) ........................................................................................................................29 STATE STATUTES General Business Law § 349............................1, 3, 4, 12, 13, 45, 46, 47, 48, 49, 50, 51, 52, 53, 58 New York Insurance Law § 3420 ..................................................................................................12 New York Insurance Law § 3420(a) ........................................................................4, 12, 13, 53, 57 New York Insurance Law § 3420(a)(2) ...........................................................................................2 RULES CPLR 3211(a)(1) .........................................................................................................13, 14, 26, 31 CPLR 3211(a)(7) .....................................................................................................................13, 14 STATEMENT OF JURISDICTION This Court has jurisdiction over this appeal because the order of the Appellate Division “finally determines” this action, and this Court has granted leave to appeal. See CIV. PRAC. L. & R. 5602(a)(1)(i), 5611. QUESTIONS PRESENTED 1. The MVP van is not a “hired auto”—and MVP and Porter are not “insureds”—unless the van was hired by DHL and being used with DHL’s permission when the accident happened. There was no agreement under which DHL hired the van, it did not control the van, and it did not, and could not, permit anyone to use the van. Was the first cause of action properly dismissed on these grounds? Answer in the Appellate Division: Yes. 2. To state a cause of action under General Business Law section 349, the plaintiff must allege a deceptive practice that is consumer-oriented. Here, the “deceptive practice” is an alleged representation—by DHL—that the policies do not cover the plaintiff’s underlying judgment against MVP and Porter. Was the dismissal of the fourth cause of action therefore proper? Answer in the Appellate Division: Yes. 2 3. Insurance Law section 3420(a)(2) permits a plaintiff to bring a direct action “against the insurer under the policy.” National Union is the insurer that issued the policies; neither AIG, Inc. nor AIG Claims is an insurer. Each of these companies observes all corporate formalities. AIG, Inc. never exercised control over National Union, and AIG Claims never sought liability under the policies. Was the dismissal of the complaint against these entities therefore proper? Answer in the Appellate Division: Yes. SUMMARY OF ARGUMENT In Carlson v. Porter, 53 A.D.3d 1129 (2008), the Appellate Division dismissed the plaintiff’s underlying tort action against DHL because it found no factual basis on which to impose any liability, including vicarious liability, on DHL. In doing so, the Appellate Division reversed the jury finding on which the plaintiff’s rely, namely, that DHL controlled MVP’s vehicles and operations. The findings in Carlson v. Porter are conclusive for purposes of this appeal. Three years later, the plaintiff brought this action against DHL’s insurers under Insurance Law section 3420(a)(2), seeking payment of the judgment entered in Carlson v. Porter on the ground that MVP and Porter are “insureds” under the policies that National Union had issued to DHL. In his complaint, the plaintiff asserted that DHL exercised “control” over MVP’s vehicles and 3 operations—the very thing that the Appellate Division found lacking when it set aside the underlying verdict against DHL. Though the Supreme Court denied National Union’s motion to dismiss the complaint, the Appellate Division modified the Supreme Court’s order, granted National Union’s motion, and dismissed the plaintiff’s complaint entirely. Carlson v. American Int’l Group, Inc., 130 A.D.3d 1479 (4th Dep’t 2015). For the following reasons, the Appellate Division’s decision should be affirmed. First, the Appellate Division’s decision in Carlson v. Porter and documentary evidence conclusively establishes that the MVP van was neither “hired” by DHL nor being used with its permission when the accident happened. Sworn testimony in the underlying action from DHL and MVP further supports this conclusion. The Appellate Division’s dismissal of the plaintiff’s first cause of action was therefore proper. Next, the Appellate Division properly dismissed the plaintiff’s fourth cause of action under General Business Law section 349 because the plaintiff failed to plead a deceptive practice that is consumer-oriented. Even if he had, the plaintiff contends that DHL—not National Union or any other AIG-member company—made the representation constituting the allegedly deceptive practice. 4 His contention would require dismissal of this cause of action even if he had pleaded a practice directed to the public at large. Finally, the Appellate Division properly dismissed the entire complaint against AIG, Inc. and AIG Claims because they are not insurers and therefore not subject to an action under Insurance Law section 3420(a). Although the plaintiff does not press this issue on appeal, he has not formally abandoned it, and so it is briefly addressed below. In sum, the Appellate Division’s decision in Carlson v. Porter, documentary evidence, and sworn testimony conclusively establish a complete defense to the plaintiff’s first cause of action. Furthermore, the plaintiff has failed to plead a cause of action under section 349, and neither AIG, Inc. nor AIG Clams is a proper party to this action. The Appellate Division’s decision should therefore be affirmed in all respects. STATEMENT OF FACTS A. The Cartage Agreement In April 2004 MVP Delivery and Logistics, Inc. (“MVP”), a ground- transportation service, entered into a cartage agreement with DHL Worldwide Express, Inc. d/b/a DHL Express (“DHL”) for the pick-up and delivery of shipments and air bills in the Western New York area. See, e.g., R. 430. 5 The agreement expressly defined MVP as an independent contractor: 1. Background.[…] DHL wishes to receive, and Contractor wishes to provide as an independent contractor, the Services in the Service Areas, all in accordance with, and subject to, the terms and conditions of this Agreement…. * * * 5.1 Independent Contractor Status. In making and performing this Agreement, the parties are acting, and shall act, as independent contractors. Neither party is, nor will be deemed to be, an agent, legal representative, joint venturer, franchisor, franchisee, or legal party of the other party for any purpose. Neither party will be entitled to (a) enter into any contracts or make any representations or warranties in the name of or on behalf of the other party, (b) pledge the credit of the other party in any way or hold itself out as having authority to do so, or (c) make commitments or incur any indebtedness, costs, charges or expenses, or sign any agreement or other document for or in the name of the other party. R. 430, 434. As an independent contractor, MVP had sole control over the “manner and means” of its performance under the cartage agreement: 3.3 Manner of Performance. Subject to the terms and conditions of this Agreement, the manner and means by which Contractor performs the Services [set forth in Schedule A] shall be at Contractor’s sole discretion and control and are Contractor’s sole responsibility, including, with respect to (a) the hours and days worked by Contractor Workers, (b) the selection and supervision 6 of Contractor Workers and (c) the number of Contractor Vehicles used by Contractor in providing the Services. Contractor shall have the sole right to determine all aspects of its performance of its obligations under this Agreement, including the staffing, operation, and routing of the Contractor Vehicles in the Service Areas…. R. 431 (emphasis added). Even though DHL generally required that vehicles be “appropriate for . . . the shipments to be carried” and provided examples of makes and models that would be appropriate, R. 483, MVP’s broad control over “all aspects of its performance” extended to the particular vehicles it used: 3.5 Vehicles Used by Contractor. 3.5.1 Contractor Vehicles. Without limiting the generality of Section 3.3, Contractor, at its sole cost and expense, shall obtain, furnish, operate, and maintain in good working condition such Contractor Vehicles as may be necessary for Contractor to perform the Services in accordance with the provision of this Agreement…. Contractor shall ensure that each Contractor Vehicle is driven in such a manner that will provide maximum safety to the driver and the general public. Contractor shall not permit any Contractor Vehicle with a DHL Mark to be used other than in connection with Contractor’s performance of the services hereunder. R. 432-33 (emphasis added). Thus MVP had the sole right to obtain, furnish, operate, and maintain the particular vehicles it used to perform services. Id. 7 MVP was, moreover, solely responsible for all licenses, vehicle registrations, fuel and supplies, and the hiring and firing of drivers: 3.5.2 Responsibility for Contractor Vehicles. With respect to each Contractor Vehicle, Contractor shall be solely responsible for (a) procuring necessary titling, licensing, permits, and registration, (b) furnishing all fuel, lubricants, and other supplies and consumables, (c) obtaining appropriate insurance coverage (including the insurance coverages required under this Agreement), and (d) bearing all other costs and expenses relating to the Contractor Vehicles (including any fines, penalties, or fees relating to moving or traffic violation)…. * * * 5.2 Status of Contractor’s Employees. Contractor shall be solely responsible for the interviewing, hiring, training, disciplining, and termination of Contractor Workers [, which are] . . . not employee[s] of DHL. . . . R. 433-35. MVP also had the right to decide whether to “retire” particular vehicles in performing its services. See R. 433 (providing for removal of DHL marks from vehicle MVP may decide to retire). B. The National Union Policies National Union issued Business Auto Liability Policy No. CA 979-85-51, to DHL Holdings (USA), Inc. for the period of May 1, 2004 to May 1, 2005. This is a primary policy with limits of $3 million subject to a $1 million deductible. R. 522. 8 The policy potentially covers “all sums an ‘insured’ legally must pay as damages because of ‘bodily injury’ . . . to which this insurance applies, caused by an ‘accident’ and resulting from the ownership, maintenance or use of a covered ‘auto.’” R. 558. Only DHL is a named insured. But another entity may qualify as an “insured” if it “us[es] with [DHL’s] permission a covered ‘auto’ [that DHL] own[s], hire[s] or borrow[s] except . . . [t]he owner or anyone else from whom [DHL] hire[s] or borrow[s] a covered ‘auto.’” Id. (emphasis added). National Union also issued Commercial Umbrella Policy No. 2860582 to Airborne, Inc. for the period of January 1, 2004 to January 1, 2005. R. 941. The umbrella policy potentially covers “bodily injury” caused by an “occurrence.” R. 967. But this policy applies only after its “retained limit” is exhausted. R. 967-68. The “retained limit” includes the $3 million primary policy and the $2 million first-level excess policy that American Alternative Insurance Co. issued to DHL. R 943-44, 947, 969. This policy has a limit of $23 million. R. 941. While Airborne is the named insured, other entities may be “insureds” if they fall within the following definition: “[a]ny person . . . or organization with respect to any auto owned by you, loaned to you or hired by you or on your behalf 9 and used with your permission.” R. 970 (emphasis added). “You” refers to the named insured, Airborne. R. 967.3 C. The Underlying Accident On July 7, 2004, William Porter was driving a delivery van owned by MVP. While he was home on a break, he got a phone call from his son, who was just involved in a car accident a few miles away. R. 1309. Porter drove the MVP van to the scene of the accident. Id. He arrived at the scene, surveyed the damage, and drove off to get a tool to repair his son’s car. Id. While driving to get the tool, he collided head-on with the car of Claudia Carlson. Id. As a result, Ms. Carlson died. R. 383. D. The Underlying Action As administrator of Ms. Carlson’s estate, the plaintiff brought the underlying action, Michael J. Carlson, Sr. et al. v. William Porter et al., Index No. 121963, in the Supreme Court, Niagara County. In his complaint, the plaintiff asserted wrongful-death causes of action against both MVP and Porter. Id. He also 3 As mentioned above, National Union issued these policies. Unlike National Union, neither AIG, Inc., its indirect corporate parent, R. 1032, nor AIG Claims, its claims- handling administrator, id., is a licensed insurer authorized to do business in New York. Id. Each of these entities is, moreover, a separate company maintaining its own corporate formalities. Id. 10 asserted a cause of action against DHL, alleging that it was vicariously liable under the doctrine of respondeat superior. See R. 383, 1309. After a trial in August 2006, the jury returned a verdict of $20 million. R. 1309. The Supreme Court denied the defendants’ post-trial motions to reduce the verdict and entered judgment. The defendants appealed. The Appellate Division modified the judgment by setting aside the verdict and dismissing the entire complaint against DHL. Carlson, 53 A.D.3d at 1132. It further set aside the verdict and dismissed the complaint against MVP to the extent that it was based on vicarious liability under a theory of respondeat superior. In dismissing the claim of vicarious liability against both DHL and MVP, the Appellate Division held that neither entity may be held liable under that theory because the undisputed facts established that Porter “was on a personal errand at the time of the accident and that his employment did not create the necessity for the travel.” Id. at 1131-32. The Appellate Division did conclude that MVP was, as the van’s owner, statutorily liable for Mr. Porter’s negligence. Id. at 1133. Following the Appellate Division’s decision, the plaintiff, MVP, and Porter stipulated to reduce the judgment to approximately $7.3 million. R. 383, R. 491-503. A reduced judgment was entered against MVP and Porter and filed on May 12, 2009. Id. 11 E. Cincinnati’s Coverage Action and Settlement Payment to the Plaintiff Cincinnati Insurance Company had issued a $1 million automobile- liability policy to MVP. After the decision in Carlson v. Porter, Cincinnati brought a coverage action against the plaintiff, Porter, and MVP in the United States District Court for the Western District of New York, seeking a declaration as to coverage under its policy. R. 1455. The plaintiff asserted a counterclaim, seeking the full limit of the Cincinnati policy plus interest. R. 1310. Eventually, the parties settled, with Cincinnati paying the plaintiff approximately $1.1 million. R. 1311. F. National Union’s Coverage Position In March 2009, almost two years after the jury reached a verdict, Porter first sought coverage for the underlying action under the National Union policies. R. 505. Within 30 days, National Union’s claims administrator, AIG Claims, wrote to Porter, advising him that he was not an “insured” under the policies. R. 517-18. Even if he were, National Union explained, his request for coverage was untimely under the policies’ notice provisions, precluding coverage for the underlying action. R. 518-19. Counsel for all interested parties, including MVP’s counsel, received a copy of National Union’s disclaimer. R. 508-520. 12 G. The Plaintiff’s Pre-Action Discovery Meanwhile, Porter assigned his potential right to coverage for the underlying action to the plaintiff under New York Insurance Law section 3420. R. 382, 1310. Then the plaintiff pursued 18 months of pre-action discovery on the issue of potential coverage under the National Union policies and the separate, first-level-excess policy that American Alternative had issued to DHL. R. 1311. H. This Coverage Action In January 2011, the plaintiff brought this action in the Supreme Court, Niagara County against AIG, Inc., AIG Claims, National Union, and other defendants. R. 382. His complaint asserts five causes of action: (1) payment under Insurance Law section 3420(a); (2) misrepresentation; (3) bad faith; (4) violation of section 349; and (5) conspiracy against AIG, Inc. and AIG Claims. R. 382-89. Only the first, fourth, and fifth causes of action are relevant in this appeal. Although the complaint generally pleads that MVP and Porter are “insureds” under the policies, and that the cartage agreement afforded DHL “virtually complete control” over the “means and manner” of MVP’s performance, R. 383-84, the complaint does not plead particular provisions of the cartage agreement. Nor does it plead that DHL “hired” the MVP van or otherwise required MVP to use that particular van in performing services for DHL. 13 I. National Union’s Motion to Dismiss, Further Discovery, and the Decisions Below In March 2011, National Union and the other AIG-member companies named as defendants moved to dismiss the complaint under CPLR 3211(a)(1) and CPLR 3211(a)(7). R. 425. After the parties filed their motion papers, the plaintiff requested further discovery on coverage issues. R. 1314. The Supreme Court continued the motion and permitted further discovery. Id. As a result, the plaintiff deposed the National Union umbrella policy’s underwriter, Barry Flynn, about the underwriting of that policy. R. 1767-68. Afterwards, the parties submitted additional motion papers. At no time did the plaintiff seek leave to amend his complaint. By order entered June 25, 2014, the Supreme Court granted in part and denied in part the motion to dismiss. R. 357-63. Specifically, the court granted the motion as to the causes of action for misrepresentation, conspiracy, and bad faith, finding them to be conclusory and otherwise duplicative of the plaintiff’s direct action under Insurance Law section 3420(a). R. 363. But the Supreme Court denied the motion as to the first cause of action under Insurance Law section 3420(a) and the fourth cause of action under section 349. and it failed to address the motion to dismiss the complaint as against AIG, Inc. And AIG Claims. 14 The parties appealed this order to the Appellate Division, Fourth Department. On July 2, 2015, the Fourth Department modified the order by dismissing the complaint in its entirety. Carlson v. AIG, Inc., 130 A.D.3d at 1479. In dismissing the complaint, the Appellate Division concluded that the cartage agreement did not show that DHL had sufficient control over the MVP van, and that the van was not, therefore, a “hired” auto under the National Union Policies. Id., 130 A.D.3d at 1481. The Appellate Division also determined that because DHL did not have control over the MVP van, “it cannot be said in any realistic sense that . . . [DHL] could grant [MVP] permission to use [the van].” Id. STANDARD OF REVIEW A motion to dismiss under CPLR 3211(a)(1) will be granted where documentary evidence conclusively establishes a defense to the cause of action. Leon v. Martinez, 84 N.Y.2d 83, 88 (1994). Documentary evidence includes insurance policies and other contracts. Held v. Kaufman, 91 N.Y.2d 425, 431 (1998) (contract); Feliberty v. Damon, 129 A.D.2d 207, 209 (4th Dep’t 1987) (insurance policy), aff’d, 72 N.Y.2d 112 (1988). On a motion to dismiss under CPLR 3211(a)(7), the complaint is liberally construed, the allegations are accepted as true, and the plaintiff is afforded 15 every possible favorable inference. Nonetheless, the motion will be granted where the alleged facts do not “fit within any cognizable legal theory.” Leon, 84 N.Y.2d at 87-88. ARGUMENT 1. The Appellate Division properly dismissed the first cause of action because the policies do not cover the underlying judgment. The plaintiff’s first cause of action seeks coverage for his underlying judgment against MVP and Porter. R. 382-84. But the plaintiff is not entitled to coverage unless MVP or Porter is an “insured” under the policies. Because documentary evidence conclusively shows that neither MVP nor Porter is an “insured,” the plaintiff cannot plead or prove his entitlement to coverage under the policies. The Appellate Division’s order dismissing the first cause of action should therefore be affirmed. A. Documentary evidence conclusively establishes that the MVP van was neither “hired” by DHL nor being used with its permission when the accident happened. The primary policy defines “insured” as “[a]nyone . . . while using with your permission a covered ‘auto’ that you own, hire or borrow except . . . [t]he owner or anyone else from whom you hire or borrow a covered ‘auto.’” R. 558 (emphasis added). Likewise, the umbrella policy defines “insured” as “[a]ny person . . . or organization with respect to any auto owned by . . . , loaned to 16 . . . , or hired by you or on your behalf and used with your permission.” R. 970 (emphasis added). In both policies, “you” means a “named insured,” which includes DHL but not MVP or Porter. R. 536, 954. Although he takes a different position in this appeal, see Appellant’s Brief, at 53-61, the plaintiff conceded in the Supreme Court that these policy terms are unambiguous. See R. 1538-39. The interpretation of these terms is therefore a question of law for this Court, and extrinsic evidence, including underwriting information, is inadmissible to vary or explain these terms. W.W.W. Assocs., Inc. v. Giancontieri, 77 N.Y.2d 157, 163 (1990) (stating that extrinsic evidence is inadmissible to create ambiguity in insurance policy that is unambiguous on its face); see B&W Heat Treating Co. v. Hartford Fire Ins. Co., 23 A.D.3d 1102, 1103 (4th Dep’t 2005) (“Where . . . the terms of an insurance policy are clear and unambiguous, interpretation of those terms is a matter of law for the court.”); Rocon Mfg. v. Ferraro, 199 A.D.2d 999, 1000 (4th Dep’t 1993) (“[R]eference to extrinsic evidence is neither necessary nor warranted” where policy language is unambiguous); W2001Z/15 CPW Realty, LLC v. Lexington Ins. Co., No. 650593/2010, 2014 N.Y. Misc. LEXIS 349, at *17 (Sup. Ct., New York Co., Jan. 22, 2014) (declining to consider communications among underwriters because policies were “clear and unambiguous”); Jacobson Family Investments, Inc. v. 17 National Union Fire Ins. Co. of Pittsburgh, Pa., No. 601325/10, 2012 N.Y. Misc. LEXIS 5752, at *12 (Sup. Ct., New York Co., Feb. 27, 2012) (rejecting extrinsic testimony of insurer’s underwriter, where insurer offering testimony made no claim that provision at issue was ambiguous). Turning to the policies’ unambiguous terms, it is undisputed that MVP “owned” the van involved in the accident, and that MVP never “loaned” the van to DHL or anyone on its behalf. So in order for the plaintiff to obtain coverage, he must plead and prove that the van was both (1) “hired” by DHL and (2) being used with DHL’s permission when the accident happened. See Georgetown Capital Group, Inc. v. Everest Nat’l Ins. Co., 104 A.D.3d 1150, 1152 (4th Dep’t 2013) (“The insured has the initial burden of establishing coverage under an insurance policy.”) (citing Consolidated Edison Co. v. Allstate Ins. Co., 98 N.Y.2d 208, 218 (2002)). In determining whether the plaintiff can carry his burden, the term “hired” must be understood in its “plain, ordinary, and popularly understood sense,” not in “a forced and technical” way. Dryden Mut. Ins. Co. v. Goessl, 117 A.D.3d 1512, 1514 (4th Dep’t 2014). 18 For the reasons that follow, the plaintiff cannot meet his burden because the evidence conclusively shows that, at the time of the accident, the MVP van was neither hired by DHL nor being used with its permission. 1. The MVP van was not “hired” by DHL. In Dairylea Cooperative Inc. v. Rossal, 64 N.Y.2d 1 (1984), this Court addressed a strikingly similar situation. There, a cooperative of milk farmers, Dairylea, entered into a “tank farm hauling contract” with a hauling company, R&H, under which R&H was to perform hauling services as an independent contractor. Id., 64 N.Y.2d at 7, 9. Afterwards, R&H entered into a lease for the tanker that it would use to perform services. Id. Eventually, R&H purchased the tanker from Dairylea. Id. The purchase was documented by an agreement, a promissory note, and a separate security agreement—each of which only R&H had signed. But both parties had signed a U.C.C. financing statement for the sale. Id. After R&H had signed these documents and filed the financing statement—but before title to the tanker was formally transferred to R&H—the tanker was involved in an accident. Id. at 6-7. The injured plaintiff sued Dairylea, R&H, and others, a jury rendered verdicts against the defendants, and their insurers 19 brought declaratory-judgment actions to determine who was liable for the resulting settlements. Id. at 7-8. One of the key questions on appeal was whether Dairylea’s auto- liability policy covered R&H for its liability in the underlying-tort action. That policy defined “insured” to include “any . . . person while using an owned automobile or a hired automobile with permission of the named insured [Dairylea].” Id. at 9 (emphasis added); cf. R. 522, 970 (containing similar provisions). Noting that the tanker was “owned” by R&H, the Court turned to the question whether the tanker was nonetheless “hired” by Dairylea. In concluding that it was not, this Court noted that while the hauling contract called for R&H to transport milk as an independent contractor, the contract did not require “use of a particular tanker” to perform that service. Id. at 9-10. And once R&H had signed the purchase agreement, the security agreement, and the promissory note, Dairylea had no control over the tanker. Id. at 10. The plaintiff attempts to distinguish Dairylea on the grounds that DHL is involved in the delivery business, and MVP had a fleet of vehicles. See Appellant’s Brief, at 67-71. These factors do not require a different result here. Although DHL is obviously involved in the delivery business, and MVP does have a fleet of vehicles, id. at 67, the question in this appeal does not 20 turn on these facts. The question is, instead, whether the MVP van involved in the accident was “hired” by DHL (and, as discussed below in part 1(A)(2), whether it was used with DHL’s “permission”) at the time of the accident. The answer to this question turns on undisputed evidence in the record, the “insured” provisions of the National Union policies, and the cartage agreement. Neither the nature of DHL’s business nor the number of vehicles MVP is relevant. Even if Dairylea were distinguishable on these grounds, other courts considering this question have reached similar conclusions. See, e.g., Toops v. Gulf Coast Marine Inc., 72 F.3d 483, 487-88 (5th Cir. 1996) (Texas law) (holding that hiring independent contractor does not create insurance coverage under policy’s “hired auto” clause unless there is separate contract under which named insured hires or leases auto for its exclusive use or control); Chicago Ins. Co. v. Farm Bureau Ins. Co., 929 F.2d 372, 374-75 (8th Cir. 1991) (holding that because trucking company acted as independent contractor, its truck could not be “hired auto,” precluding coverage under named insured’s automobile-liability policy); United States Fire Ins. Co. v. Ben Ali, 198 F. Supp. 2d 1313, 1319 (S.D. Fla. 2002) (Florida law) (“For a vehicle to constitute a hired automobile, there must be a separate contract by which the vehicle is hired or leased to the named insured for his exclusive use or control.”) (emphasis added) (quoting Sprow v. Hartford Ins. 21 Co., 594 F.2d 418, 422 (5th Cir. 1979) (Louisiana law)); Phillips v. Enterprise Transp. Co., 988 So.2d 418, 422 (Miss. Ct. App. 2008) (holding that policy did not cover independent contractor under “hired auto” provision, where contract between named insured and contractor did not require use of particular vehicle involved in accident, and named insured did not control either vehicle itself or “methods” contractor used to perform transportation services); cf. Federal Ins. Co. v. Ryder Truck Rental, Inc., 189 A.D.2d 582, 583-84 (1st Dep’t 1993) (New York law) (holding that vehicle was not “hired” by named insured, and therefore named insured’s policy did not cover independent contractor’s liability in underlying action, where named insured did not enter into rental agreement for truck but merely paid independent contractor for trucking services). The Phillips case is particularly instructive. There, a consortium of health services contracted with the state department of human services to transport participants in a needy-families program. Phillips, 988 So.2d at 419. Since the consortium could not transport all the participants itself, it subcontracted with a transportation company, NTC, to transport participants for a fee. Id. NTC, in turn, subcontracted with another transportation company, Enterprise, to transport participants. Id. In doing so, NTC told Enterprise that it would have to buy its own 22 vehicles, hire its own drivers, and provide workers-compensation insurance. Id. at 419-20. One day an Enterprise employee, Hall, was giving Phillips a ride to work. Id. at 420. On the way, Hall rear-ended another vehicle, causing injuries to Phillips. Id. Initially Phillips sued Enterprise, which had only $25,000 in insurance, and Hall. Id. Later Phillips sued NTC—which had $1,000,000 in primary insurance and another $1,000,000 in excess insurance—and NTC’s insurers. Id. The question in Phillips was whether the Enterprise vehicle was a “hired auto,” entitling Enterprise and Hall to coverage under NTC’s policies. Finding “hired auto” to be unambiguous, the court held that the Enterprise vehicle was not a “hired auto,” and that Enterprise and Hall were not, therefore, insureds under the policies issued to NTC. Id. at 421-22. In reaching this conclusion, the court noted that the contract between NTC and Enterprise called for transportation services—not for use of the particular vehicle involved in the accident. Id. at 422. Nor was there evidence that NTC had any control over the vehicle itself or the “methods” that Enterprise used to transport participants for NTC. Id. In fact, the vehicle “was owned by Enterprise, driven by an Enterprise employee, and covered by separate insurance [issued to] Enterprise. Id. at 423. 23 In sum, Enterprise was an independent contractor. Though the policies issued to NTC covered persons from whom NTC had “hired” a vehicle, they “did not cover [NTC’s] contracting for [the] transportation services of an independent contractor.” Id. at 422. The analysis in Dairylea, Phillips, and the other cases cited above turns on whether (1) there was a separate contract by which the vehicle at issue was “hired” by or leased to the named insured, and (2) the named insured exercised control over the vehicle. Dairylea, 64 N.Y.2d at 10; see Toops, 72 F.3d at 487-88; Chicago Ins., 929 F.2d at 374-75; Ben Ali, 198 F. Supp. 2d at 1319; Phillips, 988 So.2d at 422; cf. Federal Ins., 189 A.D.2d at 583-84. The reason that the analysis turns in part on whether the named insured exercises control over the vehicle rests on principles of vicarious liability. A “hired auto” provision potentially covers a named-insured principal’s vicarious liability for the acts of its agent. But ordinarily, a principal is not vicariously liable for the acts of an independent contractor because the principal “cannot control the manner in which the [contractor’s] work is performed.” Wendt v. Bent Pyramid Prods., LLC, 108 A.D.3d 1032, 1033 (4th Dep’t 2013) (emphasis added) (quoting Chainani v. Board of Educ., 87 N.Y.2d 370, 380-381 (1995)). 24 So absent “control” by the named-insured principal, the independent contractor’s vehicle will not be a “hired auto,” and neither the contractor nor its driver will be covered by the named insured’s auto policy. Applying these principles to the evidence here conclusively shows that the MVP van was not “hired” by DHL. First, the cartage agreement did not require MVP to use that particular van. R. 431-35; see Dairylea, 64 N.Y.2d at 10; Phillips, 988 So.2d at 422. The plaintiff’s complaint alleges nothing to the contrary—despite 18 months of pre-action discovery, detailed briefing of the motion to dismiss, and additional discovery after that briefing. Second, DHL did not exercise control over the MVP van. As mentioned above, MVP was an independent contractor. R. 430, 434 (cartage agreement §§ 1, 5.1). As such, the cartage agreement afforded MVP sole control over the “manner and means” of its performance. R. 431 (cartage agreement § 3.3). This exceedingly broad control extended to “the staffing, operation, and routing” of the particular vehicles MVP used to perform services. Id. Specifically, MVP had the sole right to obtain, furnish, operate, and maintain its vehicles. R. 432-33 (cartage agreement § 3.5.1). It could unilaterally remove one of its vehicles from service. R. 433 (cartage agreement § 3.5.4). And it was solely 25 responsible for all licenses, vehicle registrations, fuel and supplies, and the hiring and firing of drivers. R. 433-34 (cartage agreement §§ 3.5.2, 5.1). In this way, the cartage agreement afforded MVP sweeping control over “all aspects of its performance,” including the selection, use, and maintenance of the MVP van involved in the accident. R. 431. Against the weight of this evidence, the plaintiff’s contrary arguments—which omit key provisions of the cartage agreement and cite at length to provisions dealing with deliveries to competitors, safety requirements, and vehicle and uniform colors—ring hollow. See Appellants’ Brief, at 27-32, 65-66. The plaintiff cites repeatedly to Jefferson Insurance Co. v. Travelers Indemnity Co., 92 N.Y.2d 363 (1998), to support its argument that the MVP van was a “hired auto.” Jefferson is, however, distinguishable on its facts. There, the vehicle owner leased a particular van to a copy service, and the service used that van in performing its work. Id., 92 N.Y.2d at 369. Here the facts are entirely different: MVP did not lease any particular vehicle to DHL, and DHL did not require MVP to use any such vehicle to perform work under the cartage agreement. In Jefferson, moreover, the issue was not whether the vehicle at issue was hired by the lessee and being used with its permission at the time of the accident, as it is here. The coverage issues in Jefferson were different. Finally, while the Court in 26 Jefferson noted that the van at issue was not specifically listed in a policy’s “hired and non-owned coverage” endorsement, and that the absence of any reference to the van was not determinative, this note is not helpful here. Simply put, there is no question here that the MVP van is not listed anywhere in the National Union policies. The question is, instead, whether the MVP van was hired by DHL and used with its permission. The issue with the schedule in Jefferson does not bear on this question.4 In sum, the National Union policies and the cartage agreement conclusively establish that the MVP van was not a “hired auto”—and, therefore, that MVP and Porter are not “insureds.” For this reason alone, the Appellate Division’s dismissal of the first cause of action under CPLR 3211(a)(1) should be affirmed. 4 The affidavit of Carolyn A. Miller, R. 1947-70, consists largely of her opinions on issues of law, including that Porter is an “insured” and that National Union had a duty to inform him that he was. Id. (¶¶ 5, 24, 30, 38, 45, 51, 70, 73, 78). Ms. Miller also states that the fact Porter was on a personal errand is irrelevant for purposes of determining coverage, and that National Union acted in bad faith. Id. (¶¶ 86-87, 89). Her opinions are essentially legal conclusions about the parties’ contractual obligations, and this Court should not consider them. See, e.g., Colon v. Rent-A-Ctr., 276 A.D.2d 58, 61 (1st Dep’t 2000) (“[E]xpert witnesses should not be called to offer opinion as to the legal obligations of parties under a contract.”). Moreover, Ms. Miller’s opinions as to why the underwriters considered certain information in evaluating DHL’s risks are speculative and not, therefore, entitled to any weight. See Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 544 (2002). This is especially the case where, as here, the plaintiff obtained National Union’s underwriting files and deposed Barry Flynn, one of its underwriters. R. 1661-62. 27 2. The MVP van was not being used with DHL’s permission. Separately, the Appellate Division correctly concluded that DHL did not give MVP or Porter permission to use the MVP van at the time of the accident. Applying the reasoning in Dairylea, the Appellate Division concluded that The [MVP van] was not hired by [DHL] and was not being used at the time of the accident by an employee of [DHL] in its business or in its behalf, but was being used by an employee of [MVP] under an independent contract” (American Cas. Co. of Reading, Pa., 224 F2d at 463). Moreover, inasmuch as DHL did not have control over the MVP vehicle, ‘it cannot be said in any realistic sense that . . . [DHL] could grant [MVP] permission to use it’ (Dairylea Coop., 64 NY2d at 10). Carlson v. AIG, Inc., 130 A.D.3d at 1481. Dairylea supports this conclusion. There the named insured, Dairylea, had transferred the tanker to R&H before the accident. Dairylea, 64 N.Y.2d at 10. Once R&H became the owner, Dairylea no longer “had any control over . . . the tanker” and could not “grant R&H permission to use it.” Id. Simply put, “R&H had the right to use [the tanker] without permission from Dairylea or anyone else.” Id. Accordingly, this Court held that the tanker was not a “hired” auto, and therefore R&H was not an “insured,” under Dairylea’s auto-liability policy. Id. Applying Dairylea here, the evidence establishes that the MVP van was not being used with DHL’s permission. First, like the named insured in Dairylea, DHL did not own the MVP van—MVP. Id. Nor did DHL have any right 28 to control the van because the cartage agreement afforded MVP the sole right to do so. R. 430-34. In other words, the van could not have been used with DHL’s permission because DHL had no permission to give: just like the independent contractor in Dairylea, MVP had the sole “right to use [the van] without permission from [DHL] or anyone else.” Id., 64 N.Y.2d at 10. To rule otherwise would be to find that DHL had given MVP “permission” to use MVP’s own van—an absurdity that the Appellate Division, in another context, declined to entertain. Cf. Richmond Farms Dairy, LLC v. National Grange Mut. Ins. Co., 60 A.D.3d 1411, 1415 (4th Dep’t 2009) (rejecting vehicle operator’s attempt to establish that vehicle was “hired auto” by offering evidence that operator’s husband had loaned vehicle to named insured, which, in turn, had loaned it back to operator). Second, even if DHL could have given MVP permission to use its own van, its permission would have been limited to operating the van under the cartage agreement. Here, however, the accident did not happen while MVP and Porter were performing work under that agreement. Indeed, as the Appellate Division already found in Carlson v. Porter, the accident happened when Porter, an MVP employee, was driving the van on a personal errand, and “his employment did not create the necessity for the travel.” Id., 53 A.D.3d at 1132. 29 Specifically, Porter was home on a break from work when his son called to say that he had been in motor-vehicle accident. R. 1309. Hearing this, Porter drove the MVP van to his son’s accident site. Id. There, he thought that a tool at the house of his son’s father-in-law might help repair his son’s vehicle, and he drove off in the MVP van to get the tool. Id. While he was on his way, he collided with Ms. Carlson. Id.; Carlson, 53 A.D.3d at 1132. On these facts, the Appellate Division found it “undisputed” that Porter was on a “personal errand” when the accident happened, and that his employment with MVP “did not create the necessity for [his] travel.” Carlson, 53 A.D.3d at 1132. It is therefore inconceivable that Porter was operating the van with MVP’s permission, much less DHL’s permission, when he collided with Ms. Carlson. To avoid the Appellate Division’s conclusive determination in Carlson v. Porter, the plaintiff argues that Porter had permission to operate the MVP van under Vehicle & Traffic Law section 388(1). See Appellant’s Brief, at 75-79. By its terms, however, section 388(1) applies only to an “owner of a vehicle used or operated in this state.” Id. (emphasis added). Significantly, under Vehicle and Traffic Law section 128, “owner” means a person, other than a lien holder, having the property in or title to a vehicle . . . .” VEH. & TRAF. L. §§ 128, 388(1). 30 Since it is undisputed that MVP owned the van, the only entity from whom permission could come under section 388(1) is MVP. So the plaintiff may not employ section 388(1) to establish that Porter was operating the van with DHL’s permission when the accident happened. The public-policy concerns addressed in Murdza v. Zimmerman, 99 N.Y.2d 375, 379 (2003), do not permit the statute to be rewritten in this way. Even though section 388(1) applies only to vehicle owners, the plaintiff suggests that public policy requires that the statute be read to apply to those that hire vehicles as well. Appellant’s Brief, at 75-78. In other words, even though Porter plainly did not have DHL’s permission to use the MVP van when he got into the accident, DHL’s permission should be imputed through MVP’s imputed permission. While there are many objections to the plaintiff’s confusing theory of imputed permission, perhaps the primary one is that it is not so much an argument that Porter is an “insured” under the National Union policies issued to DHL as it is an argument that DHL should have been found liable in the first place. Indeed, if the plaintiff were correct that permission in these circumstances may be imputed to DHL under section 388(1), then DHL should have been found directly liable to the plaintiff in the underlying action just as MVP was. That cannot be the case, 31 however, because the Appellate Division found that DHL was not liable to the plaintiff, see Carlson v. Porter, 53 A.D.2d at 1131, and that finding is not at issue in this appeal. This underscores the weakness of the plaintiff’s argument that DHL somehow gave its permission for Porter’s personal errand. Simply put, DHL did not have a sufficient relationship with the MVP van to have permitted Porter to use it for a non-business purpose. Nor did DHL have a sufficient relationship with the MVP van to have prevented Porter from using it for such a purpose, as he did when he got into the accident involved here. The plaintiff is not really arguing, then, that DHL should be deemed to have given permission for Porter’s detour; the plaintiff is implicitly arguing that the requirement of permission be read out of the policies altogether. This Court should reject the plaintiff’s invitation to rewrite both the policies and section 388(1) of the Vehicle and Traffic Law. In sum, its findings in Carlson v. Porter, documentary evidence, and the undisputed facts support the Appellate Division’s conclusion that Porter was not operating the MVP van with DHL’s permission at the time of the accident. Its decision to dismiss the first cause of action under CPLR 3211(a)(1) should be affirmed on this ground as well. 32 B. Trial testimony in Carlson shows that DHL lacked any control over the MVP van. In addition to the documentary evidence discussed in part 1. A. above, the trial testimony in Carlson v. Porter underscores the conclusion that DHL did not control the MVP van. At trial, Thomas Regan, DHL’s Field District Service Manager, testified that DHL had “no say whatsoever” as to what MVP did “with [its] vehicles on a daily basis.” R. 2097. He further testified that DHL did not get involved “at all” in MVP’s day-to-day decisions. Id. Kevin Grupp, MVP’s Vice President, agreed, testifying that DHL “would not have had [the] right” to control the MVP van. R. 2092. Mr. Grupp further explained that DHL could not control the MVP van, much less “authorize . . . Porter to [take the van to] go check on his son.” R. 2090. The sworn testimony of these witnesses further demonstrates that DHL did not control the MVP van. The van could not, therefore, have been a “hired auto” under the policies. C. The Appellate Division’s holding in Carlson v. Porter precludes the plaintiff from relitigating whether DHL controlled the MVP van. In setting aside the underlying verdict and dismissing the complaint against DHL, Id., 53 A.D.3d at 1131, the Appellate Division concluded that “there was no reasonable view of the evidence upon which a jury could find that [DHL] is 33 vicariously liable under a theory of respondeat superior.” Carlson v. Porter, 53 A.D.2d at 1131. Generally, a party is not vicariously liable for the acts or a third party unless the party exercises sufficient authority or control over the third party. See Wendt v. Bent Pyramid Productions, LLC, 108 A.D.3d 1032, 1033 (4th Dep’t 2013). So in concluding that DHL could not be found vicariously liable, the Appellate Division implicitly found that DHL lacked sufficient control over the conduct of MVP or Porter. The Appellate Division’s findings were based on an extensive record at trial, during which the plaintiff thoroughly litigated the issue of DHL’s control over MVP’s operations, offering documents, including the cartage agreement, and the sworn testimony of witnesses for both DHL and MVP. R. 1177-87, 2090, 2092, R. 2097. The Appellate Division’s conclusive determination of this issue precludes the plaintiff from litigating it again in this action. Academic Health Professionals Ins. Ass’n v. Kaleida Health 1055, 1055 (4th Dep’t 2003) (citing Pinnacle Consultants v. Leucadia Nat’l Corp, 94 N.Y.2d 426, 431-32 (2000)). D. Underwriting information is inadmissible and irrelevant. As discussed above, extrinsic evidence, including underwriting information, is inadmissible where, as here, the policy provisions are 34 unambiguous. W.W.W. Assocs., 77 N.Y.2d at 163. But even if extrinsic evidence from National Union’s underwriting files were admissible, it would not establish that the MVP van was “hired” by DHL, much less used with DHL’s permission, when the accident occurred. The plaintiff goes to great lengths to argue that underwriting notes reflect National Union’s intent to cover DHL’s “non-owned” exposure for liability arising out of independents driving their own vehicles. See Appellant’s Brief, at 15-27, 42-61. But underwriting notes are unnecessary to establish this coverage; the National Union policies themselves plainly cover DHL’s exposure for liability arising out of “any auto,” regardless of whether that auto is owned, hired, or “non- owned.” R. 522, 558, 967-68, 970 (policy provisions expressly providing DHL with broad, “Symbol 1” coverage for liability arising out of “any auto”).5 The plaintiff also argues that the National Union policies were intended to provide coverage for any “hired auto,” and that a schedule referenced in item 4 of the primary policy’s declarations would demonstrate this if National 5 The most the underwriting evidence shows is that, in calculating the policy premiums, National Union evaluated DHL’s potential exposure, including its potential liability for accidents involving “non-owned” or “hired” vehicles. R. 1661-62. Evaluating this exposure was important because the policies cover DHL for liability arising out of any auto. R. 525, 557. But evaluating this exposure is irrelevant to determining whether any such auto was actually “hired” by DHL and used with its permission for purposes of a particular accident. The underwriting information simply does not answer this question. 35 Union had not failed to produce such a schedule in discovery. Appellant’s Brief, at 25-27, 59-61. As a threshold matter, National Union did not “fail” to produce any such schedule. Although such a schedule is referenced in the primary policy’s declarations, no such schedule appears in the policy itself or its underwriting file. Nor is such a schedule necessary to show that the National Union policies cover DHL for any “hired auto.” The policies themselves explicitly provide this coverage. R. 558, 970. So nothing in a schedule of the sort the plaintiff supposes could broaden the scope of DHL’s own coverage for “hired autos” under the policies. The plaintiff’s “missing schedule argument” is nothing more than a red herring designed to imply an ambiguity where none exists. In any event, the underwriting information that the plaintiff offers is irrelevant because the questions this information answers are not at issue in this appeal. Contrary to the plaintiff’s assertions, the question is not whether the National Union policies were intended to cover DHL’s “non-owned” exposure or “hired autos” in general. Nor is the question whether National Union considered the number of “non-owned” vehicles in setting DHL’s premiums. The question, instead, whether the MVP van is a “hired auto”— rendering MVP and Porter “insureds”—under the policies. The answer to this 36 question of law does not depend on any underwriting information, none of which indicates whether any MVP vehicle is a “hired auto” anyway. The answer to this question depends instead on whether evidence in the underlying action establishes that MVP’s liability in the underlying action falls within the policies’ coverage for autos “hired” by DHL and used with its permission. See Richmond Farms, 60 A.D.3d at 1414 (applying principle that duty to indemnify insured exists only where “insured is liable for a loss that is covered by the policy”) (citing Servidone Constr. Corp. v. Security Ins. Co. of Hartford, 64 N.Y.2d 419 (1985)). Here, the evidence simply does not fall within the policies’ scope of coverage. R. 522, 558, 941, 967-68; the MVP van was not “hired” by DHL or being used with DHL’s permission when the accident happened. See supra pts. 1(A)(1) and (A)(2). Nothing in National Union’s underwriting files can alter the manner in which the policies’ unambiguous terms apply to the undisputed facts. Although the plaintiff relies heavily on Old Republic Ins. Co. v Stratford Ins. Co., 777 F.3d 74 (1st Cir. 2015), a circuit-court case decided under New Hampshire law, Old Republic is readily distinguishable. There, the underlying plaintiffs were injured when a tractor-trailer struck their vehicle. Id., 777 F.3d at 76. The truck was owned by Ryder, who had leased it to DAM, whose employee was driving the truck at the time of the accident. Id. 37 The lease agreement between Ryder and DAM required Ryder to purchase liability insurance for the truck. The lease further required that Ryder’s liability insurance be primary, and that DAM be an additional insured on Ryder’s policy. Id. at 76-77. To satisfy its contractual obligations, Ryder purchased a liability policy from Old Republic. Id. at 77. Separately, DAM had purchased liability insurance from Stratford. Its insurance provided primary coverage for, among other things, any “covered auto” hired by DAM and used exclusively in DAM’s business. Id. at 77-78. It was undisputed that, at the time of the accident, the driver was doing business for DAM and operating a truck that DAM had leased from Ryder. Id. 76-77. The plaintiffs sued Ryder, DAM, and the driver. Ryder’s insurer, Old Republic, immediately began defending DAM. Id. at 78. Stratford declined to do so. Stratford, moreover, entered into a retroactive “change endorsement” with DAM, changing the Stratford’s policy to make it excess as to any “covered auto” DAM had leased from Ryder. Id. Old Republic brought suit against Stratford, seeking a declaration that both insurers had “co-primary obligations to defend and indemnify DAM” for the underlying suit. Id. Since Stratford’s coverage was “co-primary” as to any “hired” 38 auto, the question on appeal was whether the truck was “hired” by DAM under the terms of the Stratford policy. If its analysis were confined to the policy’s definition of “hired”— “[o]nly those ‘autos’ [DAM] lease[s], hire[s], rent[s] or borrow[s],” id. at 77—the court would have concluded that the truck was “hired,” and that Stratford’s policy was co-primary. Id. at 80-81. But the policy’s “cost of hire” provision led to a different conclusion. Specifically, DAM’s cost of leasing small vans to deliver smaller packages was about $5,000 a year; its cost of leasing Ryder tractor-trailers for larger shipments was about $240,000 a year. Id. at 81. Because the Stratford policy listed the “cost of hire” as $5,000 a year, and not $245,000 a year, the court reasoned that the “cost of hire” did not include the cost of leasing tractor-trailers like the one involved in the accident, and that the policy was not, therefore, intended to cover tractor-trailers as “hired autos.” Id. at 81-82. Accordingly, the court concluded that the tractor-trailer involved in the accident was not a “hired auto,” and that Stratford’s policy was excess to Old Republic’s. Id. 82-83. Old Republic is readily distinguishable. There, the court concluded that tractor-trailer was not even potentially a “hired auto” because the Stratford policy’s “cost of hire” provision reflected the parties’ intent not to insure that type 39 of vehicle. Id. at 81-83. In this appeal, however, the question is entirely different. The question is not whether the MVP van could be a “hired auto”; the question is whether, in the particular circumstances of the underlying accident, the MVP van actually was “hired” by DHL and being used with its permission when the accident occurred. Old Republic is inapposite for the further reason that the policy at issue there did not include permission as an element of coverage. Id. at 77-78. As a result—and regardless of what the underwriting files contain— neither MVP nor Porter is an insured, and the policies do not cover the underlying judgment against them. E. Other cases on which the plaintiff relies are either inapplicable or distinguishable. The plaintiff relies on Kresse v. Home Ins. Co., 765 F.2d 753 (8th Cir. 1985), for the proposition that the term “hired auto” is ambiguous. See Appellant’s Brief, at 56, 65. But in Kresse, the parties offered three conflicting definitions of the term: one from a treatise offered by the plaintiff, a second from a dictionary, and a third from another case in which the insurer had litigated the definition. Id., 765 F.2d at 755. Faced with three definitions, the court concluded that the term “hired auto” was ambiguous. 40 Unlike the parties’ conflicting definitions in Kresse, here the parties essentially agree on what “hired auto” means; they differ only on whether the record establishes that the MVP van was a “hired auto.” The cartage agreement, moreover, has no specific references to “hired” vehicles or drivers. Kresse is therefore inapposite. The plaintiff cites to Lumbermens Mut. Casualty Co. v. Morgan, 513 So. 2d 1283 (Fla. Ct. App. 4th Dist. 1987), for the proposition that “hired” auto coverage existed for a trucker who delivered exclusively for the company that had purchased the insurance. See Appellant’s Brief, at 73, 77. But Lumbermens is distinguishable because it involved a contract between a negligent truck driver and the company that retained his services, and the contract explicitly stated that the driver was “leasing himself and [his] truck” to the company. Id., 513 So. 2d at 1284. Here, unlike the contract in Lumbermens, the cartage agreement between DHL and MVP contains no such provision. In fact, the provisions of that agreement underscore the control that MVP had over its vehicles. Luizzi v. Pro Transport, Inc., 02 CV 5388 (CLP), 2013 U.S. Dist. LEXIS 107566 (E.D.N.Y. July 31, 2013), is also unavailing. Luizzi involved a coverage dispute arising from an accident between the underlying plaintiff’s automobile and a tractor-trailer truck being driven by its owner. Id., 2013 U.S. 41 Dist. LEXIS, at *28, *31. At time of the accident, the driver was performing hauling work for a transport company under a written lease identifying the particular truck and providing the company with the right to exercise “[e]xclusive use and control” over that truck. Id. at *28, *53, *55, *83-84. On those facts, the district court, applying New Jersey law, found that the truck was “hired” and therefore a “covered auto” under the transport company’s auto-liability policy. Id. at *85. Here, the facts are entirely different. Unlike the driver in Luizzi, Porter did not own the MVP van and was not performing work, but carrying out a personal errand, at the time of the accident. R. 1309; Carlson v. Porter, 53 A.D.3d at 1132. Unlike the written lease between the driver and the transport company there, the cartage agreement did not identify the MVP van and did not afford DHL exclusive use or control of that van or any other MVP vehicle. R. 430-35. And unlike the policy at issue in Luizzi, the National Union policies expressly provide that a person is not an “insured” unless the vehicle at issue is both “hired” by the named insured and being used with its permission. Id., 2013 U.S. Dist. LEXIS, at *14-16. Indeed, permission was not even an issue in Luizzi because it was undisputed that the driver was performing the transport company’s work when the accident happened. Id. at *31. For all of these reasons, Luizzi is inapposite. 42 Still other cases on which the plaintiff relies are readily distinguishable. In Manchester v. Conrad, 2012 La. App. Unpub. LEXIS 211 (La. Ct. App. Feb. 10, 2012), for example, the court awarded summary judgment to the named insured on the ground that it was not vicariously liable, but later awarded summary judgment on the ground that the tractor-trailer truck involved in the underlying accident was a “hired auto.” Id., 2012 La. App. Unpub. LEXIS 211, at *8-*9. In doing so, the court noted that in finding a lack of control for purposes of dismissing the plaintiff’s vicarious-liability claim, it did not find that there was “no control,” but merely that the documents “then presented” to the court were insufficient to find vicarious liability. Id. at *17. Unlike the determination of vicarious liability in Manchester, the determination below that DHL lacked control over the MVP van was based on a full record that included not only the cartage agreement, but also the testimony of witnesses who were subject to extensive direct and cross-examination. And unlike the parties in Manchester, who essentially admitted that the truck was “hired” (and therefore covered), id. at *8, *19-*20, both DHL and MVP testified at trial that DHL did not, and could not, control MVP’s vehicles or operations, R. 2090, 2092, 2097. It was for this reason that the Appellate Division found that DHL could not 43 be vicariously liable under any reasonable view of the evidence at the trial in Carlson v. Porter. Id., 53 A.D.3d at 1131. For these reasons, Manchester is not persuasive here. In Canal Ins. Co. v. Great W. Cas. Co., 2013 U.S. Dist. LEXIS 133344 (D. Minn. Sept. 18, 2013), the court did find a question of fact, with the factors potentially supporting a finding of control including: fronting the cost of fuel, restricting the amount of fuel purchased for particular trips, selecting trailers to be used, a right to inspect trucks and driver and maintenance logs, and the fact that the insured indicated in its application to the insurer that its business class was “For Hire Trucking.” Canal, 2013 U.S. Dist. LEXIS 133344 at *36-*37. See Appellant’s Brief, at 56, 73. None of these factors is present here. In fact, the record establishes that MVP exercised control over its vehicles. Valley Forge Ins. Co. v. Allstate Indem. Co., 504449/2013, 2014 N.Y. Misc. LEXIS 3366 (Sup. Ct. Kings Co. July 25, 2014), is also distinguishable on its facts. See Appellant’s Brief, at 61, 74. Specifically, the named insured in Valley Forge selected the particular truck involved in the accident, modified it, and even loaded the truck at the job site where the plaintiff was injured. Id., 2014 N.Y. Misc. LEXIS 3366, at *20-*21. Given this, and other “conflicting evidence” of control, the court found that the “hired auto” coverage in the named insured’s policy was 44 triggered, and that the insurer was required to defend the entity that owned the truck. Unlike the named insured in Valley Forge, DHL did not select the MVP van for the performance of services under the cartage agreement, nor did it modify the van, load or unload the van, or otherwise operate it. So Valley Forge does not support the plaintiff’s motion for leave. The plaintiff cites two other cases for the proposition that courts have rejected the “independent contractor” label for Federal Express workers: Alexander v. FedEx Ground Package System, Inc., 765 F.3d 981 (9th Cir. 2014), and Craig v. Ground Package System, Inc., 335 P.3d 66 (Kan. 2014), are inapplicable. See Appellant’s Brief, at 64. Alexander and Craig involved the question whether FedEx’s own drivers were employees under state-wage laws. Alexander, 765 F.2d at 984; Craig, 335 P.2d at 71. The courts in both cases answered the question “yes.” If this action involved the question whether Porter or other MVP drivers were employees of MVP, then these cases might be instructive. But this action does not involve the employee status of any person, so Alexander and Craig are irrelevant. 45 F. Summary The policies and the cartage agreement conclusively establish that the MVP van was neither “hired” by DHL nor being used with its permission when the accident happened (see pt. I.A.). Sworn testimony at the underlying trial and the Appellate Division’s decision in Carlson v. Porter further support this conclusion (see pts. I.B. & I.C.). Accordingly, the MVP van was not a “hired auto,” and MVP and Porter were not “insureds,” under the policies. Because they are not “insureds,” the policies do not cover the plaintiff’s judgment against them. As a result, the Appellate Division’s decision to dismiss the first cause of action seeking coverage for that judgment was correct, and its order should therefore be affirmed. 2. The Appellate Division properly dismissed the fourth cause of action under section 349 because this private, insurance-policy dispute does not involve a consumer-oriented act or practice. The Appellate Division’s dismissal of the fourth cause of action should be affirmed for two reasons. First, the plaintiff has failed to plead any consumer-oriented act or practice. Second, and in any event, the plaintiff contends that DHL—not the defendants—made the alleged representation constituting the deceptive practice. Since the defendants did not make the alleged representation, 46 they cannot be liable for violating the statute—even if their representations were consumer-oriented. A. The plaintiff has failed to, and cannot, plead a consumer-oriented act or practice. The purpose of section 349 is to curtail deceptive acts and practices directed at consumers. Gaidon v. Guardian Life Ins. Co., 94 N.Y.2d 330, 343 (1999). The statute was not intended to supplant an action for breach of a contract between parties to an arm’s-length transaction. Cooper v. New York Cent. Mut. Fire Ins. Co., 72 A.D.3d 1556, 1557 (4th Dep’t 2010). To state a cause of action under section 349, then, the plaintiff must, “at the threshold, charge conduct that is consumer oriented.” New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 320 (1995). A “private contract dispute as to policy coverage” is not consumer-oriented and therefore falls outside the ambit of the statute. New York Univ., 87 N.Y.2d at 320-21 (reversing order denying motion to dismiss cause of action under section 349); Cooper, 72 A.D.3d at 1557 (modifying supreme court’s order denying motion to dismiss plaintiff’s cause of action under section 349 to grant motion, where plaintiff failed to plead consumer- oriented act or practice). 47 Here, the plaintiff alleges that National Union has engaged “in an industry-wide practice of falsely claiming lack of available liability coverage.” R. 389. But this is not the particular deceptive practice alleged in the complaint. Tellingly, the only particular practice alleged is National Union’s alleged “attempt to falsely claim that there is no insurance coverage under the subject policies to satisfy [the plaintiff’s] outstanding judgment.” R. 388 (emphasis added). This allegation is fatal to the plaintiff’s cause of action. Whether the National Union policies cover the plaintiff’s judgment in the underlying action is precisely the sort of “private contract dispute[], unique to the parties,” that falls outside the ambit of section 349. New York Univ., 87 N.Y.2d at 320; Cooper, 72 A.D.3d at 1557 (citing Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 25 (1995)). Attempting to create the impression of consumer-oriented conduct, the plaintiff alleges that National Union and its insureds possess “disparate bargaining power.” Cf. R. 388. This allegation flatly contradicts the facts. National Union and DHL are both large, sophisticated companies. Although the policies include some standard provisions, the policies are voluminous and tailored to the named insureds’ particular needs. R. 524-940; 941-1029. The premium that DHL paid for the primary policy was nearly $2 million, and the premium that Airborne 48 paid for the umbrella policy was over $1 million. R. 524, 941. The policies were brokered by Aon, one of the largest brokerages in the country. Id. The Legislature intended section 349 to protect the State’s consumers—not sophisticated commercial parties like National Union and DHL. The plaintiff has simply failed to allege the sort of consumer-oriented conduct that the statute was intended to reach. The Appellate Division’s dismissal of this cause of action should therefore be affirmed. B. The plaintiff does not contend that the AIG defendants made the alleged misrepresentation constituting the deceptive practice—a defect fatal to his cause of action. Even if the plaintiff had pleaded a practice that was consumer- oriented, his cause of action under section 349 would still have to be dismissed. In addition to alleging a practice that was consumer-oriented, a plaintiff must plead that the practice was materially misleading, and that the plaintiff suffered injury as a result. Stutman v. Chemical Bank, N.A., 95 N.Y.2d 24, 29 (2000). Whatever the allegations in his complaint, in opposition to National Union’s motion below, the plaintiff contended that it was not National Union or one of the other AIG companies named as a defendant—but DHL—that made the representation allegedly constituting a deceptive practice under the statute. R. 1571. 49 Specifically, the complaint alleges that “the defendants . . . falsely claimed that there [was] no insurance coverage under the . . . policies.” R. 388. In opposition to the motion to dismiss, however, the plaintiff changed his position, alleging that it was DHL that made this representation in the underlying action: Plaintiffs have [sic] alleged that [the defendants] and DHL misrepresented the material fact of available insurance coverage for the [underlying] accident to [the plaintiff], Porter, MVP and the court via DHL’s responses to plaintiff’s discovery demand for all available insurance coverage[.] . . . R. 1571 (emphasis added). Neither National Union nor the other AIG-member companies named here were parties to the underlying action. Nor are they affiliates of DHL. So they cannot be charged with any representation that DHL allegedly made in its discovery responses. Since the plaintiff contended below that DHL made the representation constituting the allegedly deceptive practice, his cause of action under section 349 is fatally defective as to National Union and the AIG companies named here. For this reason as well, the dismissal of this cause of action should be affirmed. C. The cases to which the plaintiff cites are inapposite. Neither JD&K Assocs., LLC v. Selective Ins. Group, Inc., 118 A.D.3d 1402 (4th Dep’t 2014) nor Makuch v. New York Central Mutual Fire Ins. Co., 12 50 A.D.3d 1110 (4th Dep’t 2004) supports the plaintiff’s position. In JD&K, for example, two large depressions appeared in the floor of the plaintiff’s building. 118 A.D.3d 1402, 1402. The plaintiff was apparently an LLC with a single principal. See JD&K Assocs., LLC v. Selective Ins. Group, Inc., 38 Misc.3d 1234(A), 1234(A) (Sup. Ct., Onondaga Co., Jan. 24, 2013) (setting forth facts). After the plaintiff submitted a claim to its insurers, one of the insurers hired a forensic firm to investigate the loss. Id. Upon that firm’s “Investigative Engineering Analysis Report,” the other insurer disclaimed coverage. Id. Affirming the denial of summary judgment dismissing the plaintiff’s section 349 claim, the Appellate Division noted the plaintiff’s allegation that the firm hired to investigate the loss “was not an engineer, and that [the] defendants had misrepresented [the firm’s] credentials to [the] plaintiff.” Id. The plaintiff alleged that this conduct was “deceptive and part of a pattern of conduct . . . directed at [the defendants’] policyholders generally.” Id. The Appellate Division also noted that relevant discovery “remain[ed] outstanding,” rendering the defendants’ motion “premature.” Id. Indeed, the defendants had failed to comply with the Supreme Court’s discovery order, which had prompted that court to threaten the defendants with preclusion or other sanctions. See JD&K Assocs., 38 Misc. 3d at 1234(A). 51 In Makuch, an insurer disclaimed coverage under a homeowner’s policy after a falling tree had struck the plaintiffs’ home. Makuch v. New York Central Mutual Fire Insurance Co., 12 A.D.3d 1110, 1111. In affirming the denial of summary judgment dismissing the plaintiffs’ section 349 claim, the Appellate Division noted the particular allegation that “the forms making up [the] plaintiffs’ insurance policy are standard and regularly used by [the] defendant.” Id. In light of this allegation, the Appellate Division was reluctant to dismiss the plaintiffs’ claim in the “prediscovery phase.” Id. For several reasons, these cases are readily distinguishable. First, the plaintiffs in these cases differ dramatically from DHL. In Makuch, the plaintiffs were individual consumers; in JD&K, the plaintiff was apparently a small LLC with a single principal. Unlike the plaintiffs in these cases, the named insured here, DHL, is a sophisticated commercial entity—not an individual or a small-business principal that the statute was designed to protect. See Blue Cross & Blue Shield of N.J., Inc. v. Phillip Morris USA, Inc., 3 N.Y.3d 200, 206 (2004) (describing GBL section 349 as a “consumer protection statute”); cf. Sheth v. New York Life Ins. Co., 273 A.D.2d 72, 73 (1st Dep’t 2000) (noting that “consumer” is generally one who “purchases goods and services for personal, family, or household use”). 52 Second, the plaintiffs in these cases had little or no opportunity to take discovery. In JD&K, for example, the defendants had failed to comply with a discovery order, and Makuch involved a pre-discovery motion to dismiss. Here, however, the plaintiff conducted 18 months of pre-action discovery and supplemental discovery following the initial briefing and argument of the motion to dismiss. R. 1311, 1314. Despite ample discovery, which included both document production and depositions, the plaintiff has failed to supplement his allegations under section 349. Third, the nature of the transactions in these cases is fundamentally different from the commercial transaction at issue here. In JD&K, an insurer had allegedly misrepresented its investigator’s engineering credentials, presumably to burnish its disclaimer. Id., 118 A.D.3d at 1402. Makuch involved individual homeowners. Id., 12 A.D.3d at 1111. Unlike the apparently consumer-oriented nature of the transactions in those cases, this appeal involves a disclaimer of coverage in a private, commercial-insurance dispute on the grounds that MVP van is not a “hired auto”—and MVP and Porter are not, therefore, insureds—under policies that National Union issued to DHL. This Court’s decision will turn on the plain terms of those policies, the cartage agreement, and unique facts that do not concern the public at large. 53 In other words, this is precisely the sort of “private contractual dispute, ‘unique to the parties,’” to which section 349 is inapplicable. Cooper, 72 A.D.3d at 1557 (citing Oswego Laborers’, 85 N.Y.2d at 25). Accordingly, the cases on which the plaintiff relies are not persuasive. 3. The dismissal of the plaintiff’s causes of action for fraud and bad faith should be affirmed because the plaintiff has failed to, and cannot, plead the elements of either cause of action. The plaintiff’s second and fifth causes of action, asserting fraud and conspiracy, and his third cause of action, asserting bad faith, were properly dismissed because these causes of action are duplicative of the plaintiff’s direct action under Insurance Law section 3420(a). R. 363. But even if these causes of action are not duplicative, the plaintiff has failed to, and cannot, plead the essential elements of fraud or bad faith. The Appellate Division’s dismissal of these causes of action should therefore be affirmed. A. The plaintiff’s causes of action for fraud were properly dismissed because he failed to state the circumstances in detail and, in any event, the evidence shows that National Union could not have made the alleged representation. The plaintiff alleges that, before the trial of the underlying action, National Union committed fraud by representing that insurance coverage for MVP and Porter was limited to $1 million. R. 385. In other words, National Union 54 allegedly represented that MVP and Porter were not covered by the National Union policies, but that they were covered only by the $1 million automobile-liability policy that Cincinnati had issued to MVP. R. 1310-11, 1455. To plead a cause of action for fraud, the plaintiff must allege (1) a misrepresentation of fact, (2) knowledge of its falsity, (3) an intent to induce reliance, (4) justifiable reliance, and (5) damages. See, e.g., Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 559 (2009) (affirming dismissal of fraud cause of action) (discussing Pludeman v Northern Leasing Sys., Inc., 10 N.Y.3d 486, 491-93 (2008)). Here, the plaintiff cannot satisfy the first element because the evidence shows that National Union did not make the alleged representation. As mentioned above, the plaintiff alleges that, before the underlying trial, National Union misrepresented the coverage available to MVP and Porter for the underlying action. R. 385. But National Union could not have made the alleged representation because it was not a party to the underlying action, and documentary evidence conclusively shows that National Union did not disclaim coverage to MVP and Porter until nearly three years after the trial—shortly after Porter first sought coverage under the National Union policies. R. 505, 517-19. 55 The only entity that could have made the alleged representation before the trial is DHL. The plaintiff conceded as much below, asserting that the representation was made “[in] DHL’s responses to plaintiff’s discovery demand for all available insurance information.” R. 1571 (emphasis added). The plaintiff cannot prove several other elements of his cause of action for fraud either. Specifically, there is no evidence that National Union or any other AIG-member company knew National Union’s coverage position to be false. On the contrary, National Union’s April 2009 disclaimer letter details the policy provisions and the facts on which it is based. R. 508-20. The plaintiff cannot prove an intent to induce reliance because, as mentioned above, he alleges that he relied on the alleged representation in preparing for trial, and National Union did not disclaim until several months after the underlying action was resolved. And the plaintiff’s assertion that he detrimentally relied on the alleged representation in “proceed[ing] to trial . . . against entities other than MVP and Porter, including DHL,” R. 385, is belied by not only the timing of National Union’s disclaimer, but also the fact that the plaintiff had already sued DHL and was actively prosecuting his action against it when the alleged misrepresentation was made. Finally, National Union’s April 2009 disclaimer does not constitute an alleged “misrepresentation” that the National Union policies do not cover MVP or 56 Porter, or that coverage for these entities was limited to $1 million. As the courts of this State have consistently held, “a separate cause of action seeking damages for intentional fraud cannot stand when the only fraud alleged relates to breach of a contract.” Rocco v. Town of Smithtown, 229 A.D.2d 1034, 1035 (4th Dep’t 1996) (collecting cases). That is precisely the case here. The only representation that National Union made concerning coverage was its disclaimer letter. If, as established above, the disclaimer is correct, then there is no coverage. If, on the other hand, the disclaimer is incorrect, then National Union’s “representation” that the policies do not cover MVP or Porter simply amounts to a breach of the policies—not fraud. Rocco, 229 A.D.2d at 1035. B. The plaintiff’s cause of action for bad faith was properly dismissed as well. In support of his cause of action for bad faith, the plaintiff states that “[t]he gravamen of [his] complaint is that DHL caused”—and National Union somehow “acquiesced in”—the failure to disclose the “hired-auto coverage available to [MVP and Porter]. Appellant’s Brief, at 93. In other words, the plaintiff alleges that National Union committed bad faith because it “acquiesced in” DHL’s alleged “failure to disclose” that the policies cover MVP and Porter. The dismissal of this cause of action was proper for two reasons. 57 First, the basis of the plaintiff’s cause of action for bad faith— “acquiescing” in DHL’s “failure” to disclose—is essentially the same as the basis of his cause of action for fraud. His cause of action for bad faith was therefore properly dismissed for the reasons set forth in part 3.A. above. Second, a cause of action for bad faith should be dismissed when it is duplicative of a cause of action for breach of contract. New York Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 319-20 (1995). That is exactly the case here. The essence of the plaintiff’s cause of action for bad faith is that National Union failed to “disclose” and provide coverage for MVP and Porter under the policies. Setting aside the validity of National Union’s coverage position (see supra pt. 1), the most the plaintiff alleges is a breach of the implied covenant of good faith and fair dealing, which is duplicative of his cause of action for breach of contract. It is therefore insufficient as a matter of law to support a cause of action for bad faith. New York Univ., 87 N.Y.2d at 319. 4. The plaintiff does not challenge the dismissal of his complaint against AIG, Inc. and AIG Claims. The Appellate Division dismissed the plaintiff’s complaint against AIG, Inc. and AIG Claims because neither company is an “insurer” under Insurance Law section 3420(a). Carlson v. AIG, Inc., 130 A.D.3d at 1481. 58 Moreover, the record squarely establishes that neither of these entities underwrites or issues insurance policies, and that AIG Claims was at all times the agent of National Union, its disclosed principal. R. 521-22, 1032, 1616. On appeal, the plaintiff does not challenge these conclusions. The dismissal of AIG, Inc. and AIG Claims should therefore be affirmed. CONCLUSION Extensive documentary evidence conclusively establishes that the MVP van was not a “hired auto,” and MVP and Porter are not “insureds,” under the National Union policies issued to DHL. Testimony at the underlying trial and the Appellate Division’s decision in Carlson v. Porter—including its findings that Porter was on a personal errand, and that DHL was not vicariously liable—further support this conclusion. Moreover, the plaintiff has failed to plead the consumer- oriented conduct necessary to state causes of action under section 349. Nor can he plead causes of action for fraud and bad faith. Finally, the plaintiff has utterly failed to state a cause of action of any kind against AIG, Inc. or AIG Claims. Accordingly, the Appellate Division properly dismissed the complaint as a matter of law. Its decision should therefore be affirmed. Dated: June 2, 2016 000161.00465 Litigation 14082639vl HODGSON RUSS LLP Attorneys for Defendants-Appellants American International Group, Inc., AIG Domestic Claims, Inc., and National Union Fire Insurance Company of Pittsburgh, P A Kev· D. Szczepan:sK:r----' Peter H. Wiltenburg The Guaranty Building 140 Pearl Street, Suite 100 Buffalo, New York 14202 (716) 856-4000 59 EXHIBIT A . :1 ~-~;.-~£( . · UNITED STATES SECURLTIES AND. EXCHANGE .COMMiSSION · ···: · · · Washfngton, D.p; 20549 FORI\(1_-10-K:·:. ANNUAL. REPORT PURSUANT To secnoN 1.3 OR ,sjd) oF THE secuRmEs EXCHANGE ACT oF 1934 Fort~e n=lymOndod D.~.·~~r 31, Za~ ••• · •••. · .. : ;:m:~slo~ fllenumbor1~~ _,.,_ . . .... ~ .- _American Jnter.riatiotial Gr9up,, Inc. - ' · .:- ;: , ., .. ·_.~; , (Exac(n~tno of 10glstrantasapaclRod rri II~ cllartorj :. · • . · oaraware' ·:· -·.:'" ~<::··:·.:.: .,.. ··. ·. · ·. ·. · ~- 13-~92361 (State ·oj ollie; jurlSd.ICuo•rot· : . . ~ .' ; (I.R.S. Employer lnco~poraHon cr:0191!JlliaUon) n ~ .. : · · fdentification NO.) . . ·.> ='::;·:~.:' .• '·.:.::·;~~:.).~:-:: :-~·'· ·. . . . ·:::: .. ,_ ,;,: . ·' ·. 10038 175 Water' ~lruet; New ~crlc, Naw Yorfc · · .. _ ; ·. '/ ·: . (Zip Code) (Address cf principal executiVe offices) . · : I· . '"··-'·'··. ::·· · .. ·· .,_ • • • : ' : .. . -~ · • : • • • ~:o' •• • • .• . , . Reglstrolnt's talophono &lUmbar, Including area coda (212)-770.7000 . . ' • ..... • ... ~'" 1 ··•.• .. . Sei:uriUH registered pu~uant to Section 12(b) of tho Act: .S~!. EXhibit 99.02 . . .,,..,.. • . .. . , . Seclllf~es rogtstarod· pursu!lnt_to se~tton _12(g) ~f~~ ·Ac~ ~on~. · . . :;· · • ·, • •.' •• . ~ - . • .,~ ' ' •, ~ •I •• - • Indicate by check marit if the njglstr.inl b a·weiJ.knowh seasoned Issuer, a~ defined In Rule 405 ol the SacuriHas Ac:t. Yes I'll No 0 .. Indicate by cit~~-~arlc If lh~· ~~~~b-a~t ~ -~otr~ur;~~ t~ fila ~rts pu~uantto ~eCtlon_1~ -~,- Section: 15(d) of the Ad. Yes 0 No til:,~ Indicate by check mark w~ether th8. reglslla~t (1) .. has ftted all ;eparts ~qulr~d to ba filed by Sedloh 13 or 15[d) of the S~riU&$ Exchange Act of 1934 during, the preceding .12 months {or for such shorter peJfocS .that the registrant was required Ia file sud:~ reports), and. (2) lias been -~·:.\1t:t sub)ectlo5Uchftllngrequlrementsfo'rlhepast90,days. YasliJ ·,· NoiJ . · - ~··Yc·. ~.: . · .:. :. · - ~·-·.-: . · "' .. ,. Indicate by check ~rkwhether tiia iegbtrant h~s submtH~d elaetni~leanyand posted'~~ Rs'~,Porate Web sit~, If any: ev~JY inte~~fVe Data · · ~ :.~~-~_:,:;_, _~!_ •.::. Fila required to be submllted and posted pursuant to Rule 405 or RegulaUon ~T (§232.405 of this chaptel) during the preceding 12 months · . _ _ (or for such shorter period ~at ~he r~lstrant was required to submit and post such files), Y~ 111., No IJ . . · . .. · 7 .-',;.' · · ;:;~S · lndl~te by check mark if disclosure of deUnquent filers pur.Wa.nt to Item .4os of RegulaUon s.K (§229AOs ofthls chapjai) rs~ not'~ri~lned ·:_:_._.~·._.-_. ·-.:· ~.:_.:.i :.~_'-_~::.~-'_: _ : herein, a11d wiD not be contained, to the best of reglsllant's f z~~~:.. Doeu.ment oftha Regtst@nt:: ·. .· I' . ' Filmj 10:1< Rofornnco locations ~g::-· PortloM of the reglsttanrs deftni_Uve pioxy.sialementfur the 201S•''"' Partll, ll~m 5 and Part lll,ltems 10, 11.12,13 and 14 .-:·: Annual MeeUng of SharehOlders '' · . . ~~f . . ,,, .. . ~-~ ,·.·:-· ~;~r . .. ~ ~ :. ' · ~ .· ... ~ ... ... , .• ~~t -- ~d;·· ~:·- ,, . -. ': , : .. 'if:. -~: :_r;t.~- : Antorlelln lntarn:~Uon:sl Group, Inc., and SubsldJarfos . -. ~g tj}:~~~~- - . . · :''?,1: ~' £1 '(~ . SJgntflcant Subsldlarfos ' l 'II • I . • L :: • • ': • . · ,:::.· :.;~_,.:· :}.'{·: As of Docombat31,1014 - - · ·.. ·· ~ . .. ~1~ ~~:q~! .. ;' ~:_ ... ' .. .. :~ ~ .. •-. -.. <:. :.·. American Jntemauonal Group, Inc. . -- _ ~:.-_~ .-.g{~~: .. -. . . ~G~:~~~~~:·~~~: ... >-:: -~- ·-. ':" : .. :. , ~~~·- . +.'./:(~ . AJG Global~ ~ant HOldings Co!p. . : · f!, :;. ,r.;_;:/_i AJG Asset Management {futape) Llmlted . ... ·• . .... ~·:.r:,·v:. . -t ~ t ••• ; • • • --·-::·-.;~ ·. ;:_~~- AIG AsseJ Managemel!t {U.S.), LLC . · - ~~:: :· ~ ... 'o;):·· AiGGiotsaJReatEstatel~tmeatCorp." ~ • :1 ' ':. 'i •;;:.":!'' . • . ' . ! ... .• ·.• . . . ·.; 1. • • • ·, )-?- ; ·~,.;;~···: ·. , MLMansne!dComfiSII)IInc.· · • • . ~ · .. :1'": ·-~.: · . . 1\;': . .' I i . ' ' • . ,If ·-· ::~~ . AIG Federal Savings Banlt"=·~''-·" · . . --':·· ··. ·-. ·J ~;\f · AIG An~ ProckictScCaJ{ :;.:?: ··, ~-- ·,: ~:· .' ~ _;. ::· .. :.X.' AIG-FP Malthcd Rmd!rig COip: ' . · • . · · : : .'!;~~f::· AIG MMngern&ni· Franai SA' : -~ · · , __ ;·.; 1-~~~i_: AIG~~F~.-~·~ :,·':·~. . ... · · '+ -7-:v. AIG FUlldlng.lnc.. :.. • .,_ ... · . .. , -· .. ·:, fw:; AI_G.Giobal~::.~~:~:~~:--:.;".,~. ·,_:=-·._-- ·.. .. ' :.,~;- AIG Shared ServlaiS COrpora~ · • · · . · · : ·:: ·i :·~:._ · AIG Ufe rnsunwo. cOrnPBnY (Sv.itiedand) Lief. . . . i) It" . ::£:s;14'?; .. ;·::::,:>.·:<· ;:··.·. .j(. AIGP~~- . !;;;;_~~~---~ _::-~· ~-·· : ,, . ... .. ... AIG Cla!ms, Inc. ' . _ . --.. :r- ' Heallh otrCCt: ri\C! ·. ·' " · ::--· · .. · -~-~Y' · ArG pc Gtobafseivtc&s;r~ . ,. :~· ... ~:=r . ·_ AlGN~Am~rne:· , ..... -. ' · ·' · · AlG Pi'o~rtY ~ lnt~anal, LLC ·:; :. 1;;·r·1,· AIG APAc.HoLDINGs PTE. t.i'D. . • Aic3 Asia Pacroo b;~Utanc:e f.te. Lid. -· · ;,.r;-• 'JJG Aus~ iJrri.~ed · . : :_ ~i~~- . ~-:::::: ~g!:~~edled ': .·. .... ·: :·~~·•· AJGMaiayshiJMluanceBemad ·: . ·.· ..rJ'· AIG p~ilppiri~ ins~·~: .. ' . :~J; . . . AIG T~ iMiil'aiiC8 cO.; Ud., .. --~ _~::,~-~--~-'.i·.· AIG"JetAarn r~·cOm~Y'UmltBlf .: · PT-AIG rnsuianc:O lildonesla : · . · ~1:r T1uli ciniokllnii'Cc£' i.Jd ;.;~._ : · · 2&: · ' ·.. ·_'_·,. ;· . '· :.: AIG Ins~ (l'halbnd) f'tJbta: Company Llmlled . : ?:i,_-'. AHJ Centtal EilroP,!s & CIS I-ce Holdings Corporation . . UBB-AIG lrisurance Ccnij)any AD -.. : ::, • ;:-J-;1- . =? :~:· ' ·· : :. ·: . ... ' ~ '0·:: ·~~ ·· .. AJG Egypt In~ Ccrnpany s.Ae. · · AIG EUitlPe Holdings Umtted - . '· . '., ; • ' Ageas Proiea Umllcd AJG Ejuopc; umited ·- Aio G~~y.Ho!cllilg _Grru;H ·' · ------------··--- -~-~ --·--- 350 ' :.' . ···.- Ji11tsdl~lcn of lrtCGrp~r.2Uon or Orgo'nl%lltlon 'Oetawaru .~ ~···.~ =~--·~·:-- -~~ .. ,:. Delaware : : \t~\Tnona<-:·: - ~-Untied .siiltos ol!!~·- . 0~- ., Fi-at~(.' oe~:: ~~ !·~" ... •! ' ', ?oreonta go;;· ofV!)tlrig;- sc.:unUos· .· ~)old by lmmodl.1to IJ~ Parant·' ill 100 . . , ( ' 10~ ' '100 ' 100 100 1(!0''· 100 100 10~ 100 89.999988: fll .. ,; 100 1~~~ . · 100 1oo'' . : .. 100 ·.· ,.o·o· -,oo1· 100' '1o?; 100' 1o·o·' 100' ....,. ··. 100,. 100' ,{0(!: .. 100·:. 1CO 100;- 100'' 100 ' 1oo·· 100 100 100, 1'1 61.2.1' 49: S1 PI 100_ 40 95.08" 100 100 lfl 100 100 .. )·; :· • f ,... ·:. , ,;,/ I:O I • ' -·~ . -:. ' ' ... . ·· '• . · .... , ... ; ,, ,:: .. :•;::. ' • I · --_., ;:_~::::X~i:~l~~:~~,~~i/ _'. -• of Voting :1;:.·1~:~· ·v . . ~,. ~~~~~~::~~~~r :E&:i w :- .<:-~":r 1.5 of Ooeembor3t, 2014 Organl.tallon Parent ;.fu·.~ I AIG lnveslmenls UK Um!ted £1191ilnd 100 :•·dr2." Al~fsraoflns~Com,a;,yUmlted ·J~. 100 AJG Japan Holdings K.obust1lkl Kalsha Japan 100 AmllfcanHomeAssuranceCo.. Ud. 'Japan 100 AIU InsUrance Company, ltd. llle Full Eln)Bnd Malina ln:uuanc:o Company, Umlled AIG RIJ·Urelns\lla/ICO Company, UMaed AIG MEA Hatdlngs Umlled · . ' · AIG CIS lnvastmonts. UC Jasian · 100 JaP,an 100 JiiParl' 100 Un~AtabErroates 100 Russian Fedetatlon 100 · AlG Insurance Company, CJSC RusSian Fed8llllllon · 100 AU3~Umllcd' . . ··.. Sr1IMIP ' 100 .~-~~- AIG SlgottaA.S; I · .. ~ ;. • - Thrltey . 100 ·· .• ;,·.\.~_:.,:,~;··· JoliannC;b!,nu r~cil Holdings (Pmpr1etmy) Uml!ed ' S 5 · OU1h011~ ~!~ , !00°0 --,, '" . AJG.'Ufe~UihArrtCai:Jmlted ~........... I •,~ •· ' AIG SoulhAttk:il UmJiedd s'outh.Aflic::J '· 100 PliYale Jo!nt-Stodt Com;Jany AIG U!qalne ln~uanca Comp'esA3 :: ~ CHARTIS TaWEilaya B. S.C. (c) ': ,. ·, La Mel1d1o!lal Companla ~IIIIa da $eguros SA. AIN!r1cart llllemallonal Relnsuranc:a ~. Ud. ClWtiS La11n Amerlca IIIVI!StmefrtS.llC AIG 8r.J:d Holding I.LLC AIG Seglm)S Brasil SA AIG I113W1111Cl1 Compuny-Puerto Rlco . AIG lalinAmelfcall AIG SogUIOS Colombia SA. . . I AIG Seguros Gualemala, SA AIG Seguros MeJdw, SA de C.V, AIG Seguros Uruguay SA AIG Uganda Umlted AIN!rlcan lntetnaljonaJ Ullefet'Milersdef Ecuador SA. AIG-Mctropotllana ctn da S&gi.IIOS y Reasevuros SA 1nVI!IS!anes Segucasa~ CA · CA. da Segwos Amettcan lnlenlalionat UndetWrllersAd]llstment Cornp3ny,lnc. (Panama) AIG MEA lnwltmenb and sCrvl~ Inc. : · AIG Lebanon SAl AIG MEA Umlted ; BennUda ··a~ Delaware 8nai I •• PuenaR!co Puerto Rlto COlombia G~temala M~c:o l.lnJDWy Uganda EOJador EOJador Voliaulela Venezuela Panama Oelaware Looanon Unllecs Arab Emirates AIG Kell)';: :!:~J -~~·:!~~\ · AIG~~~~s.lne. GeQf'llla:- .. :~-~ .'f;'~> AIGAssulance_ :~ · Pe~nla ".fti ~. ~~~~t· AIG Ca~Ho!~inci.'.i·•·· · ~ '): "fi :\:.>!'~,,.; AIQimuroncit~~ofOinada . ~ : .. ... "'1 • · -~·~, ~ AJGP~~~-in~·Agr~.lm:. . N~J~"GY -~ ~~ .~ 'Y{ AlB Propezty~suajly.~-~ ·. PennSvtvanla ~ "' •. )·. • . AJG Spedally ln$ur.lnce.cOmpany:.:: .. . J111nc!!s . :.~ ·.i:f.fff'. ===~=.~~ =·~= ' "t :;: ..... ~ • Eegloslone Reinsurance Co~Jtpany. Pe~l:l :;::~~r ~~~~ l~t tn~no~s .. , 'be~-lrefand ~'•, •· '~1'~'.·r · -<' Mote/at MadtollllO; Inc:~·· ; l' ... ·;.· · \( .;~~~: NatlciNI Unlan Fire JnsurW& CompanY Of PlllsbU/V!I. Pa. ... ·' . oe!Mni Pennsytvanla. ~ ,'• .;: .·. ~·:: ~:,f. ·' · Ameilcln'irit~oWii!easAssoc»uon ., : : .. ~:{~ . AmO!=n.I~R~Cotp. ·:: .):· ·· ... • '.·· .. '· ·aei'inuda; ' ••• · ··o~ .. ~ ''-i'; ·· NallcnldUnlDnFTre!nsur.w:aCompanyofVermont · Vetfnont . ·1 j;l: Plnlt Snet Real Esta!t HoJd&igs CO!p. < New Hamps211te . -' ~! ""'.':.".:'",..":::"::::.:;.~ · .. ', =- ~·;. Risk Spedaflsb COtnpan!u,JnC. OelaWata ::!" rus~c Spedaasts QlmpanJas rnsurancoAgoncv. Inc. MnSJdllJsetls ·.":..., , .. -~ ... · -, \, •• l·o .. • •j.• · AgcneyManagementCOrpoiallon , ·: .. , •. . Lou!slana. ·. .. . . ·. ','·'. '\' . The Gulf AQellcy, lne. ' .. ' ·. · . ·' " . .. : ... Ala~ll\il·· :. OOSIIP\ Profe.ssfonals ~llo~ ~ P~~g Group, Inc:. . . llllncls .. ThoiMUtliiiC8eomPanyOflh~Sta~otPe~ ·.: · .. · .. · P~ AM Holdings U O ·· · '· · . . ' Dtlaware Amef1cln 5eait11y Ufo Insurance Comp;~~~y Limited Uectltlmlcln awt1s Aleft$n lnsi.Jtllm18 ~mpany Open Jo!nt Slode COmpany ~ Mcrlcfon Lane Ul LLC . ·· · · MG.Relnsuranc:o Umlted ' · 5AfG ~ornent s~·l'lC- . AJG ura Holdings. Inc:. AGC Lifo lnsutanCII Company_ AIG uta ot Betmllda. U4. . AmeiiC111 Gen1ll3l ure tnswaoca Company AlG AcMsorGroup.lnc:. Ftnnnclal SeMc:e Cotporatlon FSC Secw!Uos Cotperallon Royal Alliance Associales, Inc. sagePolnt FTnandallnc. WoodWri Rnanclal SeMces,tnc. SuMmerie:aAssot M 100 100 1oo ·. 100. 78 {1.11 ' • • ... } J,; •· •• , 1&111 53,11 100 . 53.12 ,,.. 100 100 1~0 100 . , . ... ~ : ·· :-• ,., 100 100 100 ·100 100 100 100 100 100 100 100 100 100 100 100 100 100 100 100 100 100 --·- ··-·-·-----... -----··----··--·-----------·---·----·-·------· -------- 352 ... ..... \ .... ~ .;. ~ ... .. .. .. ·.~· . .. . .. _ .. '• ....... . ..• , . .. ~ ;·. ~. ,_. . ':.' .Pim:ont:tgo. orvatlng , Seeurltlos As of Oocombar3t, 2014 Jurtsdlctlan of lncorponUon or Orq:mlz:all on held by lmmodlato IIJ Paront (1} (2) {3) (4) (5} (6] (7) (8) {9) (tOJ . (tf) (12) (13) {14} (IS} {ltl) I The United States Ute IIISUlanC8 Company In tho City ol NHYollc The Variable Annuity U!e I~ Complll'f . : Vai!CRetiremeni SeNic:es Company SunAtneltca Ufe RelnSIIr.)l)C8 Company United Guaranty Corporallan . : AIG UJiiled Guaranty Agenzla dllwlcurazlone SAL AJG Unllod Guaran1y lns4ltanc:e (Asia) limited NewYOIIt TexaS Texas · MisSOuri . Ncnh carolina 100 100 100 100 100 100 100 AJG Unlli!d G\lalaiiiY Mexico, SA AIG Unlled G'uaiWIIy ~~ Umfled ;. flaly HOngl