Michael J. Carlson, Sr.,, Appellant,v.American International Group, Inc., et al., Respondents.

Brief

N.Y.Oct 18, 2017

0 To be Argued by: PAUL KOVNER, ESQ. Time Requested for Argument: (20 Minutes) STATE OF NEW YORK Court of Appeals APL-2016-00041. 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, vs. 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. Appellate Division Docket Number: CA 13-01599. Niagara County Index No. E143033/11. (Caption Continued on Inside Front Cover.) BRIEF FOR DEFENDANT-RESPONDENT AMERICAN ALTERNATIVE INSURANCE CO. RUBIN, FIORELLA & FRIEDMAN LLP Attorneys for American Alternative Insurance Co., Defendant-Respondent 630 Third Avenue, 3rd Floor New York, New York 10017 Telephone: (212) 953-2381 Facsimile: (212) 953-2462 PAUL KOVNER, ESQ. AARON F. FISHBEIN, ESQ. Of Counsel Date of Completion: June 1, 2016. BATAVIA LEGAL PRINTING, INC. Telephone (866) 768-2100 0 MICHAEL J. CARLSON, SR., Individually and as Administrator of the Estate of CLAUDIA D’AGOSTINO CARLSON, and as Assignee of WILLIAM PORTER, Plaintiff-Appellant, vs. 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. Appellate Division Docket Number: CA 14-02027. DISCLOSURE PURSUANT TO 22 NYCRR 500.1(0 American Alternative Insurance Corporation ("AAIC") is a wholly owned subsidiary of Munich Re America Corporation, a Delaware holding company that is ultimately owned entirely by Miinchener Riieckversicherungs or Munich Reinsurance Company ("Munich Re"). Munich Re is a German corporation that issues shares which are traded only on the Deutsche Boerse (German Stock Exchange) ("DAX"). 1 TABLE OF CONTENTS QUESTIONS PRESENTED ..................................................... 1 PRELIMINARY STATEMENT .................................................. 2 STATEMENT OF FACTS ...................................................... 4 The Accident ........................................................... 4 The Cartage Agreement ................................................... 4 The Underlying Action .................................................. 6 The AAIC Policy ........................................................ 8 The Appellate Division's Decisions ......................................... 9 ARGUMENT ................................................................ 11 POINT I - the Appellate Division Properly Held That Carlson Cannot Maintain a Direct Cause of Action Against AAIC Because the AAIC Policy Was Neither Issued Nor Delivered in New York State .............. 11 POINT II - The MVP Van Was Being Used Without DHL'S Permission at The Time of the Accident .................................... 20 POINT III - The MVP Van Was Not "Hired" by OHL ........................ 27 POINT IV - Carlson Has Not Adequately Pied a Business Law§ 349_Claim ...... 35 POINT V - The Appellate Division Properly Held That the Supreme Court Correctly Dismissed Carlson's Second Cause of Action Against AAIC for Misrepresentation: ........................................... 40 POINT VI- The Appellate Division Properly Held That Lower Court Correctly Dismissed Carlson's Third Cause of Action for Alleged Bad Faith in Refusing to Settle The Claim ................................................. 43 CONCLUSION .............................................................. 45 11 TABLE OF AUTHORITIES Admiral Ins. Co. v. Joy Contractors , Inc., 81 A.D.3d 52 1 (P1 Dep't 2011) ................................................. 13 Aetna Cas. & Sur. Co. v. Kassab , 1997 WL 333442 33 (Mich. Ct. App. 1997) ........................................ 2 9 Allen v. Adami , 39 N.Y.2d 2 75 (1976) ......................................................... 11 Allstate Ins. Co. v. Rivera , 12 N.Y.3d 602 (2009) ......................................................... 11 Altshuler Shaham Provident Funds , Ltd. v. G ML Tower , LLC , 2 1 N.Y.3d 352 (2013) ......................................................... 19 American Cas. Co. of Reading , Pa., 224 F2d at 463 ............................................................... 10 Azby Brokerage , Inc. v. Allstate Ins. Co., 681 F. Supp. 1084 (S.D. N.Y.1988) .............................................. 38 B. R. De Witt , Inc. v. Hall , 19 N.Y.2d 141 (1967) ......................................................... 2 2 Beal Sav. Bank v. Sommer , 8 N.Y.3d 318 (2007) .......................................................... 2 3 Bennion v. Allstate Ins. Co., 2 84 A.D.2d 92 4 (4th Dep't 2001) ................................................. 44 Bird V. McGoldrick , 2 77 N.Y. 492 (1938) .......................................................... 19 Buckner v. Motor Vehicle Acci. lndem. Corp., 66 N.Y.2d 2 11 (1985) ......................................................... 2 3 Canal Ins. Co. v. Great W. Cas. Co., 2013 U.S. Dist. LEXI S 133344 (W.D. Minn. 2013) .................................. 34 Carey v. AAA CON Transp., Inc., 61 A.D.2d 113 (3ra Dep't 1978) .............................................. 2 6, 2 7 111 Carlson v. Porter , 53 A.D.3d 1129 (4th Dep't 2008) .................................... 3, 4, 20, 21, 27, 31 Certain Un derwriters at Lloy d's , Lon don v. Foster Wheeler Corp., 36 A.D.3d 17 (I 8t Dep't 2006) ............................................. 14, 15, 18 City ofN.Y. v. Welsbach Elec. Corp;, 9 N.Y.3d 124 (2007) .......................................................... 22 Cummer Lumber Co. v. Associate d Mfrs' Mut. Fire Ins. Corp., 67 A.D. 151 (2nd Dep't 1901) ................................................... 19 Dairylea Cooperative., Inc. v. Rossal , 64 N.Y 2d 1 (1984) ........................................................... 28 Dawn Froste d Meats , Inc. v. Ins. Co. Of N. Am., 99 A.D.2d 448 (I 8t Dep't 1984) .................................................. 44 De Pasquale v. Allstate Ins. Co., 179 F. Supp.2d 5l(E.D. N.Y. 2002) ........................................... 36, 39 Deutsch v. Luther , 172 N.Y.S. 404 (I 8t Dep't 1918) ................................................. 22 Doherty v. Merchants Mut. Ins. Co., 74 A.D.3d 1870 (4th Dep't 2010) ................................................. 43 El Gemayel v. Seaman, 72 N.Y.2d 701 (1988) ......................................................... 32 FC Bruckner Associates , L.P. v. Fireman's Fund Ins. Co., 95 A.D.3d 556 (I 8t Dep't 2012) ................................................. 18 Foster Wheeler Corp., 36 A.D.3d at 25 ........................................................... 16, 17 Franco v. Jay Cee ofN.Y. Corp., 36 A.D.3d 445 (1st Dep't 2007) .................................................. 31 Frie dman v. State of N.Y., 24 N.Y.2d 528 (1969) ......................................................... 22 Fuentes v. Virgil , 119 A.D.3d 522 (2nd Dep't 2014) ................................................. 22 lV Gaidon v. Guardian Life Ins. Co. of Am., 94 N.Y.2d 330 , 704 N.Y.S.2d 177 (1999) .......................................... 36 Goldman v. White Plains Center For Nursing Care , L LC , 11 N.Y.3d 173 ( 2008) ......................................................... 3 2 Grand Gen. Stores , Inc. v. Royal lndem. Co., 1994 U.S. Dist. LEXIS 5 251 (S.D. N.Y. 1994) ..................................... 37 Greenspan v. Allstate Ins. Co., 937 F. Supp. 288 (S.D. N.Y. 1996) ............................................... 38 Harary v. Allstate Ins. Co., 983 F. Supp. 95 (E.D. N.Y. 1997) ............................................... 37 Holmes v. Brethren Mut. Ins. Co., 868 A.2d 155 ( D. of Col. Ct. App. 2005) .......................................... 28 Investor Prot. Corp. v. B DO Seidman , L.L.P ., 95 N.Y.2d 70 2 ( 2001) ......................................................... 4 2 JD&K Assoc., LLC v. Selective Ins. Group Inc., 118 A.D.3d 140 2 (4th Dep't 2014) ................................................ 39 Lamport v. Smedley , 213 N.Y. 8 2 (1914) ........................................................... 12 Lang v Hanover Ins. Co., 3 N Y3d 350 , 8 20 NE 2d 855 , 787 N YS 2d 211 [2004] ............................... 9 , 11 Lapolla Indus., Inc. v. Aspen Ins. Specialty Ins. Co., 96 2 F. Supp.2d 479 (E.D. N.Y. 2013) ............................................. 15 Lava Trading , Inc. v. Hartford Fire Ins. Co., 3 26 F. Supp.2d 434 (S.D. N.Y. 2004) ............................................. 36 Lewis v. Progressive Gulf Ins. Co., 7 So.3d 955 (Miss. Ct. App. 2009) ............................................... 29 Litts v. Wayne Paving Co., 261 A.D.2d 906 (4th Dep't 1999) ................................................ 31 Lumbermens Mut. Cas. Co. v. Morgan , 513 So. 2d 1283 (FL Ct. App. 1987) ........................................... 25 , 34 V MaGee v. Paul Revere Life Ins. Co., 954 F. Supp. 582 (E.D. N.Y.1997) ............................................ 37 , 38 Makuch v. N.Y. Cent. Mut. Fire Ins. Co., 1 2 A.D.3d 1110 (4th Dep't 2004) ................................................. 40 Manchester v. Conrad , 201 2 La. App. Unpub. L EXI S 211 (La. Ct. 201 2) .................................. 3 3 , 34 Marino v. N.Y. Tel. Co., 944 F.2d 109 (2nd Cir. 1991) .................................................... 18 Matter of Liquidation of Midland Ins. Co., 16 N.Y.3d 536 (2011) ...................................................... 15, 18 Md. Cas. Co. v. Continental Cas. Co., 3 3 2 F.3d 145 (2nd Cir. 200 3) ................................................... 15, 17 Measom v. Greenwich & Perry St. Housing Corp., 268 A.D.2d 156 (l 81 Dep't 2000) ................................................ 31 Miccio v. Nat'l Sur. Corp., 170 A.D.2d 9 37 (3rd Dep't 1991) ................................................ 3 2 Miller v. O'Brien , 168 S.W.3d 109 (Mo. Ct. App. 2005) ............................................. 29 Morris v. Palmier Oil Co., Inc., 94 A.D.2d 911 (3rd Dep't 1983) ............................................... 2 2 , 2 3 Motor Vehicle Accident Indem. Corp. v. Cont'l Nat'l Am. Group Co., 35 N.Y.2d 260 (1974) ...................................................... 25, 26 Munzer v. St. Paul Fire & Mar. Ins. Co., 20 3 A.D.2d 770 (3rd Dep't 1994) ................................................. 16 Murdza v. Zimmerman , 99 N.Y.2d 375 (200 3) ................................................... 24 , 26 , 27 N.Y. Univ. v. Continental Ins. Co., 87 N.Y.2d 308 (1995) ...................................................... 37 , 4 2 Northwestern Mut. Life Ins. Co. v. Wender , 940 F. Supp. 6 2 (S.D. N.Y. 1996) ................................................ 37 vi O.K. Petro. Distrib. Corp. v. Travelers Indem. Co., 2010 U.S. Dist. LEXI S 71465 ( S.D. N.Y. 2010) .................................... 38 P.T. Bank Cent. Asia v. ABN AMRO Bank N.V., 301 A.D.2d 373 (l 81 Dep't 2003) ................................................. 41 Phillips v. Enterprise Transp. Serv. Co., 988 So.2d 418 (Miss. Ct. App. 2008) ............................................. 28 Preserver Ins. Co. v Ryba , 10 N Y3d 635 ,893 NE 2d 97 ,86 2 NYS 2d 8 20 [2008] ............................ 9 , 13 , 14 Rozell v. Rozell , 256 A.D. 61 (3rd Dep't 1939), affd , 281 N.Y. 106 (1939) ............................. 19 Shapiro v. Berkshire Life Ins. Co., 21 2 F.3d 1 21 ( 2nd Cir. 2000) .................................................... 38 Simmons v. Washing Equip. Tech., 51 A.D.3d 1390 (4th Dep't 2008) ................................................. 41 Sprow v. Hartford Ins. Co., 594 F.2d 418 (5th Cir. 1979) .................................................... 28 Steadfast Ins. Co. v. Sentinel Real Estate Corp., 283 A.D.2d 44 (3rd Dep't 2001) ...................................•........... 14-17 Thompson v. Anderson Elec. Car Co., 181 A.D. 894 ( 2nd Dep't 1917) ............................................... 2 2 , 23 Thrasher v. U.S. Liab. Ins. Co., 19 N.Y.2d 159 (1967) ......................................................... 11 TIG Ins. Co. v. Martin , OO-C V-5766 , 2003 U.S. Dist. LEXI S 28435 (E.D. N.Y. Feb. 28 , 2003) ................... 18 Travelers Prop. Cas. Co. of Am. v. L K Transp., Inc., 2014 WL 996 235 (E.D. Cal. 2014) ............................................... 28 Troops v. Gulf Coast Marine , Inc., 7 2 F.3d 483 , 488 (5th Cir. 1996) ................................................. 28 U.S. Fire Ins. Co. v. Ben Ali , 198 F. Supp.2d 1313 ( S.D. Fla. 200 2) ............................................ 28 , 29 vii Valley Forge Ins. Co. v. Allstate Indem. Co., 2014 N.Y. Misc. LEXIS 3366 (Sup. Ct. Kings Cty. 2013) ............................. 35 Wells Fargo Bank N.A. v. Podeswik, 115 A.D.3d 207 (4th Dep't 2014) ................................................. 21 Wingen v. Fleischman , 252 N.Y. 114 (1929) .......................................................... 23 Zurich Ins. Co. v. Shearson Lehman Hutton , Inc., 84 N.Y.2d 309,618 N.Y.S.2d 609 (1994) .......................................... 15 Zurich Ins. Co. v. Texasgulf, Inc., 233 A.D.2d 180 (I 8t Dep't 1996) ................................................. 44 ,, Statutes CPLR 3016(b) .......................................................... 3 , 37, 41 CPLR Article 52 .............................................................. 7 CPLR § 3013 ................................................................ 37 CPLR § 3 211 ................................................................. 7 General Business Law§ 349 ............................................. 1 , 8, 36-40 New York Insurance Law§ 34 20 (b)(l) .......................... 1 , 2 , 7-9, 11-14 , 18, 19 Restatement (Second) of Conflict of Laws§ 6 ( 2)(f)) ................................. 16 Section 167 ................................................................. 11 VTL § 388 .................................................................. 2 2 Other Authorities 8A Couch on Insurance§§ 118:45 (3d ed. 2010), 118:48, 118:49 [3d ed 2014] ......... 10 , 28 http://www.dhl-usa.com/en/country_profile.html .................................. 9, 17 http://www.sos.wa.gov ....................................................... 8, 16 vm QUESTIONS PRESENTED 1. Was the AAIC policy "issued or delivered in" New York under New York Insurance Law § 3420 (b)(l ), even though it was issued in New Jersey and delivered in Seattle, Washington, and then in Florida? The Appellate Division answered No. 2. Was the MVP Van being used with DHL's permission at the time of the accident? The Appellate Division answered No. 3. Was the MVP Van involved in the subject accident a "hired auto" within the meaning of the AAIC Policy's definition of "Insured"? § 349? The Appellate Division answered No. 4. Has Carlson pled a sustainable claim under New York General Business Law The Appellate Division answered No. 5. Did the Supreme Court correctly dismiss Carlson's second cause of action against AAIC for misrepresentation? The Appellate Division answered yes. 6. Did the Supreme Court correctly dismiss Carlson's third cause of action for alleged bad faith in refusing to settle the claim? The Appellate Division answered yes. 7. Did the Supreme Court correctly dismiss Carlson's third cause of action for alleged bad faith in refusing to settle the claim? The Appellate Division answered yes. PRELIMINARY STATEMENT Defendant-Respondent American Alternative Insurance Company ("AAlC"), respectfully submits this brief in opposition to the appeal of the Plaintiff-Appellant, Michael J. Carlson, Sr. ("Carlson"). Carlson seeks insurance coverage for a judgment entered in a prior action which arose out of a motor vehicle accident on July 7, 2004 ( the "Accident") in which Claudia Carlson was struck by a delivery van ( the "MVP V an")owned and insured by MVP Delivery and Logistics, Inc. ("MVP"), and driven by MVP' s employee, William Porter ("Porter"). The Appellate Division properly held that Carlson has no ability to maintain a direct cause of action against AAIC in New York State with regard to the AAlC policy at issue, because the AAlC policy was not issued or delivered in New York State, as required by Insurance Law § 3420. The AAIC policy was issued in New Jersey and delivered to Washington State to named insured Airborne, Inc., and subsequently delivered to Florida when the named insured on the policy was changed to DHL Holdings (USA), Inc. Therefore, New York Insurance Law§ 3420 does not apply to plaintiffs claim on this policy. In addition, all parties agree that in order for thereto be coverage, the MVP Van must have been a "hired auto" at the time of the accident. It was not, because , the MVP Van was not being used with DHL's permission at the time of the Accident. As the Appellate Division 2 found in the underlying action, "it is undisputed that the employee [Porter] was on a personal errand at the time of the accident and that his employment did not create the necessity for the travel." Carlson v. Porter, 53 A.D.3d 1129, 1132 (4th Dep't 2008), leave to appeal denied, 11 N.Y.3d 798 (2008). Moreover, to be deemed a"hired auto," the MVP Van must have been specifically hired by the named insured at the time of the accident, and it was not. Carlson has not alleged a proper claim under General Business Law§ 349, because he has not alleged any acts or practices that are consumer-oriented. Instead, he has alleged only a private contract dispute unique to the parties. Carlson's second cause of action for misrepresentation fails to satisfy the pleading requirements of CPLR 3016(b) because it does not allege basic essential facts about AAIC's alleged misrepresentation, including who at AAIC made the alleged misrepresentation, when and where the alleged misrepresentation was made, or how Carlson relied on the misrepresentation to his detriment. Carlson's third cause of action for alleged bad faith refusal to settle the underlying action is meritless because Porter is not an insured under the AAIC Policy, and thus AAIC had no right, obligation or duty to settle the action on his behalf. Moreover, AAIC had, at the very least, an arguable case for its position that the AAIC Policy does not provide coverage to Carlson. 3 STATEMENT OF FACTS The Accident In this case, Carlson, individually and as administrator of the estate of his wife, Claudia D' Agostino Carlson ("Claudia Carlson"), seeks insurance coverage for a judgment entered in a prior action entitled Carlson v. Porter et al., Index No. 121963 (N.Y. Sup. Ct., Niagara Cty.) (the "Underlying Action"). (R. 30- 40, 1177 - 1181.) The Underlying Action arose out of a motor vehicle accident on July 7, 2004 (the "Accident") in which Claudia Carlson's car was struck by a delivery van (the "MVP Van")owned and insured by MVP Delivery and Logistics, Inc. ("MVP"), and driven by MVP's employee, William Porter ("Porter"). (R. 32, � 8.) The Appellate Division found in the appeal of the Underlying Action that "it is undisputed that the employee [Porter] was on a personal errand at the time of the accident and that his employment did not create the necessity for the travel." Carlson v. Porter, 53 A.D.3d 1129, 1131 (4th Dep't 2008). Indeed, Carlson has admitted in this appeal that Porter "was on a personal errand and not making a delivery at the time of the accident." (Carlson's Brief, page 12.) The Cartage Agreement At the time of the Accident, MVP and DHL Worldwide Express, Inc. ("DHL") had a cartage agreement ( the "Cartage Agreement") whereby MVP was providing delivery services for DHL. (R. 383, � 9, and 430 - 443). The Cartage Agreement provides that: • MVP was an "independent contractor" (R. 434, § 5.1); 4 • The "manner and means by which [MVP] performs the Services shall be at [MVP's] sole discretion and control and are [MVP' s sole responsibility", including determining which vehicles to use. (R. 4 31, § 3 .3); • MVP had the "the sole right to determine all aspects of its performance of its obligations under this Agreement, including the staffmg, operation, and routing of the Contractor Vehicles in the Service Areas." (R. 431, § 3.3); • It was MVP's responsibility to "obtain, furnish, operate and maintain" the vehicles "at its sole cost and expense." (R. 432 - 433, § 3.5.1); • MVP was solely responsible for procuring necessary titling, licensing, permits, registration, fuel, supplies, insurance and "all other costs and expenses" relating to the vehicles. (R. 433, § 3.5.2); • MVP was prohibited from allowing any vehicle with a DHL mark from being "used other than in connection with [MVP's] performance of the services hereunder." (R. 432 - 433, § 3.5.1); and • MVP was solely responsible for interviewing, hiring, screening, training, disciplining, and terminating its employees. (R. 432 - 434, §§ 3.4, 5.2.) These provisions are consistent with the testimony of MVP Vice President Kevin Grupp that DHL did not have the right to control how Porter used the MVP vehicle (R. 2084, 2091 - 2092) and DHL Field District Service Manager Thomas Regan in the Underlying 5 Action that DHL had "no say whatsoever what they do with their vehicles on a daily basis." (R. 2093, 2097.) The Underlying Action Carlson filed a wrongful death claim against MVP, Porter, DHL and Airborne Express. (R. 383, ,r 10, 1898 ). Carlson's claims against MVP and DHL were based on vicarious liabilityforPorter's negligence. (R. 1903, ,r 15 ). Carlson obtained a judgment against all defendants for $20 million. On appeal, the Appellate Division dismissed all claims against DHL, ruling that DHL could not be liable for Porter's negligence under a theory of respondeat superior because he was on a personal errand at the time of the Accident. The Appellate Division reduced the judgment to $7,310,344 against MVP and Porter only. 53 A.D.3d at 1131. The Appellate Division stated: [T]he court erred in denying the post-trial motion of the DHL defendants to set aside the verdict and for dismissal of the complaint against them on the ground that there is no reasonable view of the evidence upon which a jury could find that they are vicariously liable under a theory of respondeat superior. We further conclude that the court also erred in denying that part of the post-trial motion of MVP to set aside the verdict insofar as it is based on that theory of liability and for dismissal of the complaint to that extent. ... Porter testified at trial that, before the accident, he was at home, on his scheduled break. After receiving a telephone call from his son, who had been in a motor vehicle accident five miles away, Porter took the MVP - owned delivery van to the accident site. The accident occurred while Porter was en route to his father-in-law's house to retrieve a tool to enable him to repair his son's vehicle . . . . [I]t is undisputed that the employee was on a personal errand at the time of the accident and that his employment did not create the necessity for the travel. We therefore conclude as a matter of law that neither the DHL defendants nor MVP may be held vicariously liable under the theory ofrespondeat superior. (Internal citations omitted, emphasis added.) Id. at 1131 - 1132. 6 The amended judgment was entered on May 12, 2009. (R. 491 -498). On March 12, 2010, Carlson served AAIC, American International Group, Inc., Chartis Claims, Inc. (f/k/a AIG Domestic Claims, Inc.), National Union Fire Insurance Company of Pittsburgh, PA ("National Union") andDHL witha copy oftheamendedjudgment. (R. 118-128). A period of discovery under CPLR Article 52 ensued whereby AIG and AAIC produced their respective underwriting files to Carlson. On January 25, 2011, Carlson brought a declaratory judgment action in New York Supreme Court, Niagara County, pursuant to an alleged assignment of purported insurance rights from Porter, asserting that MVP and Porter are entitled to coverage under the AIG and AAIC policies issued to DHL. (R. 379 -391, ,r,r 6, 9, 14 and 18). All defendants moved to dismiss the various causes of action asserted in Carlson's complaint pursuant to CPLR § 3211. On September 14, 2012, the Supreme Court, Niagara County issued a Memorandum Decision, reduced to Order on November 27, 2012, which denied AAIC's motion to dismiss solely with respect to Carlson's claim against AAIC based on New York Insurance Law § 3420 (b )( 1 ), and held all other arguments in abeyance pending completion of discovery. (R. 18 -25). The Court's Order was served with Notice of Entry on December 4, 2012. (R. 26 - 27). AAIC filed a Notice of Appeal with respect to the Decision and Order on December 17, 2012. (R. 14 - 17). Following the issuance of the November 2012 Order, the parties conducted discovery, and pursuant to the Court's directive, filed supplemental briefing from December 2013 through May 2014 on the remaining claims. (R. 1305 - 2234). All defendants sought to 7 dismiss Plaintiffs claims previously held in abeyance. (Id.) On June 23, 2014, the Supreme Court, Niagara County issued a Decision and Order which granted AAIC's, National Union's and AIG's motion to dismiss Carlson's causes of action for misrepresentation and for bad faith refusal to settle claims, but denied it as to Carlson's Insurance Law § 3420 and NY Gen. Bus. Law § 349 claims. (R. 357 - 363). The Court's Order was served with Notice of Entry on July 30, 2014. (R. 364 - 367). The AAIC Policy The AAIC Policy, number Ol-A2-FF-0000083-01, provides commercial umbrella coverage to DHL Express as the Named Insured, from January 1, 2004, to January 1, 2005, with limits of $2,000,000 per occurrence. (R. 1040 ,-i 2; 1043 - 1101 ). The AAIC Policy follows form and is excess to the scheduled underlying National Union Policy, No. CA 979-85-51 (the "National Union Primary Policy"), which has a combined single limit of $3,000,000. (R. 1040 i12; 1121 - 1123). The named insured at the time that the AAIC Policy was issued was Airborne, Inc. (R. 50 - 108). Airborne's address as stated on the AAIC Policy is 3101 Western Avenue, Seattle, Washington. (R. 67.) The AAIC Policy was delivered to AON Risk Services in Seattle, Washington. (R. 48 ,-i 4, 67.) The AAIC Policy was subsequently delivered to Florida when the named insured on the AAIC Policy was changed to DHL Holdings (USA), Inc. (R. 48 ,-i 4, 63). The Court may take judicial notice of Airborne's Washington State corporate location and incorporation documentation filed with the Washington Secretary of State. http://www.sos.wa.gov. Thus, Airborne, Inc.'s domicile, and the "location of the 8 insured and the risk to be insured," is Washington State, and that fact has never been disputed. DHL acquired Airborne in 2003, and DHL Holding became the named insured pursuant to an endorsement to the AAIC Policy on May 1, 2004. (R. 48, ,r 5, 63). It was never disputed that DHL's principal place of business is in Florida. The Court may take judicial notice of DHL's location on DHL's corporate website: http://www.dhl-usa.com/en/country _profile.html. The Appellate Division's Decisions On July 2, 2015, the Appellate Division issued two unanimous decisions. In the first decision, the Appellate Division dismissed the first cause of action against AAIC on the basis that the AAIC Policy was not "issued or delivered" in New York State. The Appellate Division stated: "[T]he right to sue a tortfeasor's insurance company to satisfy a judgment obtained against the tortfeasor" exists only pursuant to Insurance Law § 3420 (Lang v Hanover Ins. Co., 3 NY3d 350, 352, 820 NE2d 855, 787 NYS2d 211 [2004 ]). Here, plaintiff may not recover against AAIC pursuant to section 3420 (a) (2) because the policy was not "issued or delivered in this state" (id.). The parties and the court have improperly conflated the phrase "issued or delivered" with "issued for delivery," which was used in the former version [ 14 78] oflnsurance Law§ 3420 ( d), and therefore the definition of "issued for delivery" is not relevant here (see Preserver Ins. Co. v Ryba, 10 NY3d 635, 642, 893 NE2d 97, 862 NYS2d 820 [2008]). The policy here was issued in New Jersey and delivered in Seattle, Washington, and then in Florida. It was not issued or delivered in New York, and therefore the first cause of action of the complaint against AAIC must be dismissed. (R. 5 - 6, reported at 103 A.D.3d 1477.) 9 In the second decision, the Appellate Division ruled that MVP and Porter may be "insureds" under the applicable policies only if the MVP Van was "hired" by DHL and was being used with DHL's permission at the time of the Accident. The Appellate Division held that the MVP Van was not hired by DHL. The Court stated: We agree with defendants that in order for the MVP vehicle driven by Porter to be deemed a vehicle "hired" by DHL, there must be a showing that DHL exercised control over the vehicle, and not general control over MVP (see 8A Couch on Insurance,§§ 118:48, 118:49 [ 3d ed 2014]) ... We conclude that the cartage agreement does not show that DHL had sufficient control over the MVP vehicle in order for it to be deemed a "hired" automobile. Rather, it showed that DHL hired MVP as an independent contractor to provide delivery services. It provided that MVP "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 [MVP] Vehicles in the Service Areas;" ... "The [vehicle] 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 46 3. ) 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 ). (R. 10, reported at 1 30 A.D.3d 1479.) 10 ARGUMENT POINT I THE APPELLATE DIVISION PROPERLY HELD THAT CARLSON CANNOT MAINTAIN A DIRECT CAUSE OF ACTION AGAINST AAIC BECAUSE THE AAIC POLICY WAS NEITHER ISSUED NOR DELIVERED IN NEW YORK STATE The Appellate Division properly held that Carlson cannot maintain a direct cause of action against AAIC because the AAIC policy was neither issued nor delivered in New York State. The Appellate Division ruled (R. 5 - 6), and Carlson does not dispute, that an injured person has no common law cause of action directly against a tortfeasor's insurer. Instead, an injured person's ability to sue directly a tortfeasor' s insurer derives exclusively from New York Insurance Law§ 3420. Lang v. Hanover Ins. Co., 3 N.Y.3d 350, 352 - 53 (2004). See also Thrasher v. U.S. Liab. Ins. Co., 19N.Y.2d 159, 166 (1967) ("A direct action suit against an insurer provided for by section 167 (subd. 1, par. (b )) of the Insurance Law [precursor to § 3420(b)(l)] is a cause of action which was unknown to the common law"). As a statute in derogation of the common law, Insurance Law§ 3420 must be strictly construed. See Allstate Ins. Co. v. Rivera, 12 N.Y.3d 602, 699 n.1 (2009); Allen v. Adami, 39 N.Y.2d 275,277 (1976). Insurance Law § 3420 provides: (a) No policy or contract insuring against liability for injury to person, except as provided in subsection (g) of this section, or against liability for injury to, or destruction of, property shall be issued or delivered in this state, unless it contains in substance the following provisions or provisions that are equally or more favorable to the insured and to judgment creditors so far as such provisions relate to judgment creditors. (Emphasis added.) 11 On its face, Insurance Law § 3420 no longer states "issued for delivery," as it did before it was amended in 2008. The Appellate Division merely applied the clear and unambiguous language of the statute in ruling that Insurance Law § 3420 applies to only policies issued or delivered in New York State. The Appellate Division found that the AAIC policy "was issued in New Jersey and delivered in Seattle, Washington, and then in Florida. It was not issued or delivered in New York. . . . " (R. 6.) These findings of fact are undisputed. Thus, the AAIC Policy was not "issued or delivered" in New York State. Consequently, Carlson could not sue AAIC, as the Appellate Division held. Carlson argues that, despite the clear wording of the 2008 amendment, Insurance Law § 3420 still should be read as if it states "issued for delivery." Thus, Carlson urges this Court to, in effect, pretend that the amendment never happened, and ignore the plain meaning of this simple phrase. The mere statement of Carlson's position demonstrates its absurdity. Such argument is not worthy of consideration by the Court of Appeals. See Lamport v. Smedley, 213 N.Y. 82, 85 - 86 (1914) (Cardozo, J.) ("Such a construction of the statute would leave the law exactly where it stood before the amendment was adopted. The Legislature did not have in view a vain and nugatory enactment"). Carlson's argument that the legislative changes to Insurance Law§ 3420(d) should be considered merely a "cosmetic tweak" is meritless. Section 3420( a) is involved here, not 3420(d). Moreover, the Bill Jacket on which Carlson relies indicates that the change to section 3420( a) was intended to be substantive, since when the Legislature intended a change 12 to be cosmetic or technical, it explicitly stated so. See Bill Jacket Introducer's Memorandum In Support, Summary Of Provisions ("Section 6 of the bill makes certain technical amendments to Insurance Law § 3420G)"). The Appellate Division's decision does not conflict with any case on point decided by this Court after the 2008 amendment. The First Department's decision in Admiral Ins. Co. v. Joy Contractors, Inc .. 81 A.D.3d 521 (1 st Dep't 2011), aff d as modified, 19 N.Y.3d 448 (2012) is not in conflict. In Joy Contractors, the policy was issued and the accident occurred before the Legislature amended Insurance Section 3420(a). Therefore, the policy in Joy Contractors was governed by the pre-amendment "issued for delivery'' standard as articulated in Preserver Ins. Co. v. Ryba, 10 N.Y.3d 635 (2008). Under that standard, a policy was "issued for delivery" in New York "if it covers both insureds and risks located in this state." Preserver Ins. Co., 10 N.Y.3d at 642. As AAIC stated in its Appellate Division brief, that is still the standard as to the meaning of "issued for delivery." However, the governing statutory wording after the amendment is "issued or delivered." Therefore, the Preserver standard does not apply to the present case, as the Appellate Division ruled. Even if the Preserver standard for "issued for delivery" does apply to the present case ( and it does not), the AAIC Policy was not "issued for delivery" in New York. In Preserver, a worker employed by a subcontractor, a New Jersey company, fell from scaffolding at premises in Orangeburg, New York owned by general contractor Joaquim Almeida. Id. at 638. Preserver Insurance Company, a New Jersey insurer, had issued a workers' 13 compensation and employers' liability policy to the subcontractor. Id. The policy was underwritten and delivered in New Jersey. Id. Preserver commenced a declaratory judgment action and moved for summary judgment on the ground that it did not owe coverage to the subcontractor or Almeida and, therefore, did not have an obligation to disclaim under Insurance Law§ 3420(d). Id. at 639. This Court held that the policy had not been "issued for delivery" in New York and, therefore, § 3420 was inapplicable. Id. at 642. This Court ruled that a policy is "issued for delivery'' in New York "if it covers both insureds and risks located in this state." 10 N.Y.3d at 642. (Emphasis added). This Court noted that the policy covered risks in New York, but it was issued ("underwritten") and delivered in New Jersey by a New Jersey insurer to a New Jersey insured. Since both elements - insureds and risks located in New York - were not present, § 3420 did not apply. Id. at 638, 642. Here, the Preserver test would not be satisfied because the insured is not located in New York State, and the risk is deemed to be in the state of the insured's domicile. In insurance cases, the "principal location of the insured risk" generally determines which state's law applies ( and in this case, whether a New York insurance statute can apply to this claim).1 See Certain Underwriters at Lloyd's, London v. Foster Wheeler Corp., 36 A.D.3d 17, 22-23 (1st Dep't 2006), affd, 9 N.Y.3d 928 (2007). See also Steadfast Ins. Co. v. Sentinel Real Estate Corp., 283 A.D.2d 44, 50 (3rd Dep't 2001). To determine the principal location of the insured risk, courts consider several factors, including the insured' s state of incorporation and 1 Choice oflaw cases are instructive as to the meaning of the terms delivery, issued, and location of risk. 14 the location of its principal place of business ( from where it negotiated the terms of its policy, and to where the policy presumably was delivered - thus constituting the state where the contract was made). See Zurich Ins. Co. v. Shearson Lehman Hutton, Inc., 84 N.Y.2d 309, 317 - 18,618 N.Y.S.2d 609, 613 (1994); Lapolla Indus., Inc. v. Aspen Ins. Specialty Ins. Co., 962 F. Supp.2d 479,485 (E.D. N.Y. 2013); Certain Underwriters at Lloyds of London v. Ill. Nat'l Ins. Co., 553 Fed. App. 110, 111 (2nd Cir. 2014); Steadfast Ins. Co. v. Sentinel Real Estate Corp., 283 A.D.2d at 50. In this case, theAAICPolicy is excess and follows form to the National Union Policy, which covers certain risks in all states. (R. 69, 73, 129 - 132.) Where an insurance policy covers risks in multiple states, the state of the insured's domicile is a proxy for the principal location of the insured risk. Matter of Liquidation of Midland Ins. Co., 16 N.Y.3d 536,544 (2011); Certain Underwriters at Lloyd's, London v. Foster Wheeler Corp., 36 A.D.3d at 24. As such, the law of the state of the insured' s domicile at the time the policy was issued applies. Id., citing Md. Cas. Co. v. Continental Cas. Co., 332 F.3d 145, 153 (2nd Cir. 2003) ("where the insured risk is scattered throughout multiple states, courts still deem the risk to be located principally in one state," - the state of the insured's domicile at the time the policy was issued). See also Steadfast Ins. Co. v. Sentinel Real Estate Corp., 283 A.D.2d at 50 (where policy covered risks stemming from "the nationwide scope of (the insured's) operations, the principal location of the insured risk should be deemed to be the state where [the insured] is incorporated and has its principal place of business "). The state of the principal place of business takes precedence over the state of incorporation for the purposes 15 of domicile. See Foster Wheeler Corp., 36 A.D.3d at 25, citing Munzer v. St. Paul Fire & Mar. Ins. Co., 203 A.D.2d 770, 771 (3rd Dep't 1994) (applying the law ofVermont, the state of the insured's principal place ofbusiness, rather than New York, the state of incorporation). This approach promotes "certainty, predictability and uniformity of result" (Restatement (Second) of Conflict of Laws § 6(2)(f)) in that "[t]he state of the insured's domicile is a fact known to the parties at the time of contracting, and (in the absence of a contractual choice-of-law provision) application of the law of that state is most likely to conform to their expectations." Foster Wheeler, 36 A.D.3d at 23. Here, the named insured at the time the AAIC Policy was issued was Airborne, Inc. (R. 50 - 108). Airborne's corporate address as stated on the AAIC Policy is 3101 Western Avenue, Seattle, Washington. (R. 67.) The AAIC Policy was delivered to AON Risk Services in Seattle, Washington. (R. 48 ,r 4, 67.) The AAIC Policy was subsequently delivered to Florida when the named insured on the AAIC Policy was changed to DHL Holdings (USA), Inc. (R. 48 ,r 4, 63). Washington State constituted Airborne, Inc.'s principal place of business ("from where it negotiated the terms of its policy, and where the policy presumably was delivered to it--thus constituting the state where the contract was made," (Steadfast Ins. Co. v. Sentinel Real Estate Corp., 283 A.D.2d at 50), despite the fact that it, and its related entities, were incorporated in Delaware. The Court may take judicial notice of Airborne's Washington State corporate location and incorporation documentation filed with the Washington Secretary of State. http://www.sos.wa.gov. Thus, 16 Airborne, Inc. 's domicile, and the "location of the insured and the risk to be insured," is Washington State. DHL acquired Airborne in 2003, and DHL Holding became the named insured pursuant to an endorsement on May 1, 2004. (R. 48, ,r 5, 63). DHL's principal place of business is in Florida. The Court may take judicial notice ofDHL's location on its corporate website: http://www.dhl-usa.com/en/country_profile.html. For the purposes of this Court's analysis, Washington State is still the "principal location of the insured risk," as that was the state of AAIC's insured, Airborne, Inc.'s, domicile at the time the AAIC Policy was issued. See Foster Wheeler, 36 A.D.3d at 24 (examining location of risk as the state of the insured's domicile). See also Id. at 19 (examining issue as of the time a policy is created); Md. Cas. Co. v. Continental Cas. Co., 332 F.3d at 153. When the named insured of the AAIC Policy was changed to DHL Holdings by endorsement in 2004, the AAIC Policy arguably became "delivered" to Florida. See Steadfast Ins. Co. v. Sentinel Real Estate Corp., 283 A.D.2d 44, 50 (3rd Dep't 200 I) ( examining delivery as the state "where the contract is made"). Regardless of whether the named insured' s domicile was Washington State or Florida, it was not New York. The AAIC Policy does not purport to cover a New York insured, or a New York risk. This is because MVP and Carlson, as Porter's alleged assignee, are not named insureds under the AAIC Policy, and activities pursuant to the Cartage Agreement are not specifically insured. For a policy covering risks in several states, the location of the risk is the state of the insured's domicile (where the policy was negotiated and delivered), unless some other 17 specific location is specified in the policy. See Matter of Liquidation of Midland Ins. Co., 16 N.Y.3d 536, 544 (2011); Certain Underwriters at Lloyd's, London v. Foster Wheeler Corp., 36 A.D.3d at 24; TIG Ins. Co. v. Martin, OO-CV-5766, 2003 U.S. Dist. LEXIS 28435 (E.D. N.Y. Feb. 28, 2003). In TIG Ins. Co. v. Martin, the Court held that Insurance Law§ 3420(d) (requiring timely disclaimer ofliability coverage) did not apply to claims on a policy issued by a Texas insurer to an Indiana insured. Id. at* 4. A sexual assault claim was asserted against a New York baseball camp. TIG Insurance had issued a policy in Texas for delivery to Athletic Alliance Risk Purchasing Group in Indiana. Id. at * 1. The business description stated on the policy was "Sports Camp Program/East Coast." Id. TIG Insurance provided an interim defense to the camp and then moved for a declaration of non-coverage and for summary judgment. The Court held that Insurance Law § 3420 did not apply to a claim on this policy since the policy was not delivered or issued for delivery in New York, as the policy was not specific to the New York camp or to other work in New York. Id. at* 4 - 5. See also Marino v. N.Y. Tel. Co., 944 F.2d 109 (2nd Cir. 1991) (policy not delivered or issued for delivery in New York where the insured was a New Hampshire corporation and the policy was not specific to the New York Telephone building contract or other work in New York). In this case, the AAIC Policy does not designate MVP or Porter as insureds. Since the AAIC Policy was not issued or delivered in New York, Carlson's Insurance Law § 3420 claim must fail. See FC Bruckner Associates, L.P. v. Fireman's Fund Ins. Co., 95 A.D.3d 18 556, 557 - 58 (1st Dep't 2012) (Insurance Law § 3420 does not apply to plaintiffs "not specified or expressly mentioned in the policy"). Carlson's policy argument was not raised in the trial court or the Appellate Division. Therefore, it is not preserved for appellate review. See Altshuler Shaham Provident Funds, Ltd. v. GML Tower, LLC, 21 N.Y.3d 352,361 n. 4 (2013) ("the Appellate Division may, in the exercise of its "interests of justice" jurisdiction, always reach an issue not preserved at Supreme Court. The Court of Appeals, by contrast, generally lacks power to review unpreserved issues even where the Appellate Division has chosen to do so") ( citations omitted). Moreover, Carlson has cited to no authority in support of his public policy argument. As such, it must be rejected. See Rozell v. Rozell, 256 A.D. 61, 63 (3rd Dep't 1939), affd, 281 N.Y. 106 (1939) ("What the public policy is must be determined by the Constitution, the laws, the course of administration and decisions of the courts of last resort of the States. A State has no public policy cognizable by the courts which is not derived or derivable by clear implication from the established law of the States as found in the Constitution, statutes and judicial decisions. The public policy of this State where the Legislature acts is what the Legislature says it shall be") ( citations omitted). In addition, since the statute is clear on its face, the Court may not contradict it by its own judgment of public policy. See Cummer Lumber Co. v. Associated Mfrs' Mut. Fire Ins. Corp., 67 A.D. 151, 154 (2nd Dep't 1901), aff d, 173 N.Y. 633 (1903) ("it is the duty of the courts to give a reasonable construction to statutes, not to read into them provisions which the Legislature cannot be reasonably supposed to have intended"). See also Bird v. McGoldrick, 277 N.Y. 19 492, 500 (19 38) ("Where, as in this case, there is a statute defining the duties and liabilities of a public officer, no consideration of public policy can properly induce a court to reject the statutory definition"). POINT II THE MVP VAN WAS BEING USED WITHOUT DHL'S PERMISSION AT THE TIME OF THE ACCIDENT There is no possible basis for coverage because the MVP Van was not being used with DHL's permission at the time of the Accident. As the Appellate Division held: 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 ). (R. 10.) Likewise, in an earlier appeal, the Appellate Division ruled, after full discovery and litigation in the Underlying Action, that The accident occurred while Porter was en route to his father-in-law's house to retrieve a tool to enable him to repair his son's vehicle. . . . it is undisputed that the employee was on a personal errand at the time of the accident and that his employment did not create the necessity for the travel. Carlson v. Porter, 5 3 A.D.3d 1129, 11 32 (4th Dep't 2008), leave to appeal denied, 11 N.Y.3d 798 (2008) (R. 2160.) The AAIC Policy follows form to the National Union Primary Policy. (R. 69, 7 3.) The National Union Primary Policy defines "insured" as "[a]nyone ... while using withyour permission a covered 'auto' you own, hire or borrow except ... [t]he owner or anyone else from whom you hire or borrow a covered 'auto."' (R. 1122, emphasis added.) The National Union Primary and AAIC Policies define "you" and "your" as DHL. (R. 1121, 1124, 1810, 20 1814.) Carlson does not dispute that MVP and Porter are not named insureds under the Policies. Therefore, the parties agree that the Complaint could survive dismissal only if Carlson showed both that: (1) the MVP Van was "hired" by DHL within the meaning of the Policies; and (2) the MVP Van was being used with DHL's permission at the time of the Accident. (R. 115, ,I4). Carlson cannot satisfy the second prong of his burden as a matter of law - showing that the MVP Van was being used with DHL's permission at the time of the Accident. This is because the Appellate Division found in the underlying action that "it is undisputed that the employee [Porter] was on a personal errand at the time of the accident and that his employment did not create the necessity for the travel." Carlson v. Porter, 53 A.D.3d 1129, 1132 (4th Dep't 2008), leave to appeal denied, 11 N.Y.3d 798 (2008). (R. 2160.) The Appellate Division stated: Porter testified at trial that, before the accident, he was at home, on his scheduled break. After receiving a telephone call from his son, who had been in a motor vehicle accident five miles away, Porter took the MVP - owned delivery van to the accident site. The accident occurred while Porter was en route to his father-in-law's house to retrieve a tool to enable him to repair his son's vehicle. Id. Therefore, it is resjudicata that Porter was not using the MVP Van with either DHL's or MVP' s permission at the time of the Accident. For this reason alone, AAIC can have no liability to Carlson under the AAIC Policy. Thus, the Appellate Division properly dismissed the second and fourth causes of action as to AAIC. See Wells Fargo Bank N.A. v. Podeswik, 115 A.D.3d 207, 215 (4th Dep't 2014) ("where there is a valid fmal)udgment[,] the doctrine 21 of res judicata, or claim preclusion, bars future litigation between those parties on the same cause of action") (internal quotation marks omitted, bracket in original); City of N.Y. v. Welsbach Elec. Corp., 9 N.Y.3d 124, 127 - 28 (2007); Friedman v. State ofN.Y., 24 N.Y.2d 528, 534 - 35 (1969); B. R. De Witt, Inc. v. Hall, 19 N.Y.2d 141 (1967). In Morris v. Palmier Oil Co., Inc., 94 A.D.2d 911 (3rd Dep't 1983), the owner of a van used to make customer service calls entrusted the van to a serviceman on a full time basis, with instructions that only he was to use the van, and only for company business. Nevertheless, the serviceman's half-brother borrowed the van in order to deliver a bed to their parents' s home. The Court ruled: The law is well established that restricted authorization to use a vehicle negates an owner's liability for an accident occurring subsequent to a breach of the restriction. The foregoing evidence, if believed, was sufficient to rebut the statutory presumption of permission and to present a question for the jury on that issue. 94 A.D.2d at 911 (citations omitted). See also Murdza v. Zimmerman, 99 N.Y.2d 375,380 (2003) ("presumption may be rebutted, however, by substantial evidence sufficient to show that a vehicle was not operated with the owner's consent"); Fuentes v. Virgil, 119 A.D.3d 522, 523 (2nd Dep't 2014), leave to appeal denied, 26 N.Y.3d 901 (2015) (VTL § 388's presumption that the driver was using vehicle with the owner's express or implied permission may be rebutted by "substantial evidence sufficient to show that the vehicle was not operated with the owner's consent"); Thompson v. Anderson Elec. Car Co., 181 A.D. 894, 894 - 95 (2nd Dep 't 1917) ( automobile owner not liable for accident where employee had been lent the car "for his private purpose to bring his mother home from a hospital. The driver was, 22 therefore, in [employee's] personal service, and was not engaged in defendant's business"). Carlson's argument that a vehicle should be deemed to be a "hired auto" for the entire time that it is contracted, regardless of the circumstances at the time of the accident is meritless. That argument is refuted by Morris v. Palmier Oil Co., Inc., 94 A.D .2d 911 (3rd Dep't 1983), Murdza v. Zimmerman, 99 N.Y.2d 375, 380 (2003), Fuentes v. Virgil, 119 A.D.3d 522, 523 (2nd Dep't 2014), leave to appeal denied, 26 N.Y.3d 901 (2015) and Thompson v. Anderson Blee. Car Co., 181 A.D. 894, 894 - 95 (2nd Dep't 1917), discussed above. Carlson has cited to no authority in favor of his novel proposition, because there is none. Carlson is wrong that the Policies' requirement for coverage that the MVP Van be used with DHL's permission at the time of the Accident may have bee� satisfied if MVP had given the driver permission to use the van at the time of the Accident. The Policies extend coverage only to persons using an "auto" with the permission of a "named insured," and MVP is not a "named insured." Carlson's argument impermissibly reads the word "your" out of the Policies' "insured" definitions, which define "insured" as persons using an "auto" with "your permission," and defining "your" to mean "named insureds." (R. 1122, 1815 at § II.A( l )(b).) See Beal Sav. Bank v. Sommer, 8 N.Y.3d 318, 324 - 35 (2007) ("a contract should be "read as a whole, and every part will be interpreted with reference to the whole; and if possible it will be so interpreted as to give effect to its general purpose") (internal quotation marks omitted); Buckner v. Motor Vehicle Acci. Indem. Corp., 66 N. Y.2d 211, 213 23 ( 1985) ("Whether the policy covers plaintiff turns on a reading of the entire policy''); Wing en v. Fleischman, 252 N.Y. 114, 119 (1929) (insurance "policy must be read as a whole"). Murdza v. Zimmerman, 99 N. Y .2d 3 7 5 (2003), relied upon by Carlson, assists AAIC, not Carlson. In Murdza, the owner of a business van leased it to another company, which entrusted it to an employee. The employee's boyfriend used the van at the time of the accident. The Court found that "there exists a question of fact as to whether [the boyfriend] operated the vehicle with Scicchitano's permission." 99 N.Y.2d at 382. The Court distinguished between companies which rent automobiles to the general public and a business which leases a commercial van to another business. The Court stated: While it is foreseeable that a rented vehicle would come into the hands of any number of operators by the very nature of the quasi-ownership relationship created by a lease, the bailment of a vehicle to an employee spawns a markedly different relationship with its own set of expectations. Indeed, an at-will employment relationship and the frequent contact between an employee and employer demand compliance with restrictions on vehicle operation placed on the employee. As a result of this relationship, it is reasonable for an employer to expect employees to comply with its use restrictions. Thus, allowing an employer explicitly to restrict those who may operate its vehicles, while simultaneously restricting its liability as an owner under Vehicle and Traffic Law § 388, encourages careful selection of operators-the curative policy underpinning of the section. Id. at 381 - 82. The Court held that the owner of the van had rebutted the presumption of the consent of the owner, and hence was immune from owner's liability under VTL § 388. Id. at 378,382. Moreover, contrary to Carlson's representation, Murdza did not establish that if a driver is not a thief, then he is a permissive user for the purpose of a hired auto provision. Indeed, Murdza did not involve insurance at all. 24 Lumbermens Mut. Cas. Co. v. Morgan, 513 So. 2d 1283 (FL Ct. App. 1987), leave to appeal denied, 520 So. 2d 585 (1988) does not assist Carlson. In Lumbermens Mut. Cas. Co. v. Morgan, an individual, Morgan, contracted with Gold Coast, Inc. to haul material in his own truck for Gold Coast. While hauling material pursuant to the contract, Morgan collided with an automobile. The Court held that, under these circumstances, the truck was a hired vehicle. Thus, Lumbermens Mut. Cas. Co. Is irrelevant , because it did not involve a vehicle which was being used for a private errand at the time of the accident. Carlson also relies on Motor Vehicle Accident Indem. Corp. v. Cont'l Nat'l Am. Group Co., 35 N.Y.2d 260 (1974). In Motor Vehicle Accident Indem. Corp., Discount Rent-A-Car ("Discount") was insured by Continental National American Group Company ("Continental"). A person rented a car from Discount and lent the vehicle to Ronald Sills, who was not a member of the renter's family. The rental agreement provided that the vehicle would be driven by the renter or an adult member of his immediate family and that the renter would not allow another to use the vehicle without first obtaining Discount's consent. That consent was not obtained. Sills became involved in an accident, which caused injuries to a passenger. The passenger sued Discount and Sills. Continental provided a defense to Discount, but refused to defend or indemnify Sills on the basis that he was not a permitted user of the vehicle under the rental agreement. Motor Vehicle Accident Indem. Corp. ("MV AIC") provided a defense to Sills and paid the judgment in favor of the passenger. MV AIC then sued Continental, seeking a declaration that Sills was covered by the Continental policy issued to Discount. The Court held that Continental's denial violated 25 public policy. The Court ruled that "in the circumstances of this case, that Discount gave constructive consent to Sills who drove its vehicle with the consent of its lessee." 3 5 N. Y .2d at 264 - 65. Motor Vehicle Accident Indem. Corp. is distinguishable from the present case. The rationale of the ruling in Motor Vehicle Accident Indem. Corp. was that "The lessor ( and Continental), because of the public policy question involved, knew or should have known that the probabilities of the car coming into the hands of another person were exceedingly great and in these circumstances they are to be charged with constructive consent." Id. at 264. Here, in contrast, it was entirely unforseeable to DHL that Porter would use the MVP Van for a purely private errand. As the Court stated in Murdza v. Zimmerman, supra, "while it is foreseeable that a rented vehicle would come into the hands of any number of operators by the very nature of the quasi-ownership relationship created by a lease, the bailment of a [ commercial] vehicle to an employee spawns a markedly different relationship with its own set of expectations." 99 N.Y.2d at 381. In addition, in Motor Vehicle Accident Indem. Corp., no hired auto provision was involved. Carlson's reliance upon Careyv. AAA CON Transp., Inc., 61 A.D.2d 113 (3rd Dep't 1978) is misplaced. In Carey, the owner of a private automobile contracted with- a transportation company to take her vehicle from her home in New Jersey to Florida. The transportation company then entered into an agreement with a student who agreed to drive the car to Florida in return for the transportation. While on a detour along the trip to Florida, the driver was in an accident. The Court found that there was no evidence "from which it could be concluded that as a matter of law the owner had restricted the permission so as to 26 be operative only from New Jersey to Florida." Id. at 118. The Court further found that the agreement between the transportation company and the driver implied that he could deviate from the most direct route, but he would be liable for any damages if he did so. Id. at 119. The Court ruled that under theses specific facts, it was shown that there was "constructive permission by the owner through [the transportation company] to [the driver] to drive the vehicle for his own personal desire to reach his destination." Id. Here, in contrast, the driver took the van on a personal errand, without anyone's permission. Moreover, the vehicle in Carey was a personal car, not a commercial van, a key distinction which the Court of Appeals made in Murdza supra. Carlson has mis-stated the Appellate Division's holding in Carlson v. Porter, 53 A.D.3d 1129, 1133 ( 4th Dep't 2008). The Court simply did not hold, or state, that at the time of the Accident, Porter had MVP's permission to use the MVP Van. Just the opposite. As stated above, the Court ruled that Porter "was on a personal errand at the time of the accident." Since the MVP Van was not used with DHL's permission, there is no possible basis for coverage here. This is an obstacle which Carlson cannot overcome. POINT III THE MVP VAN WAS NOT "HIRED" BY DHL In addition to being unable to show that the MVP Van was being used with DHL's permission at the time of the Accident, Carlson cannot show that the MVP Van was "hired" by DHL within the meaning of the Policies. An independent contractor's vehicle can qualify 27 as a "hired automobile" under a named insured's policy only if a contract between the named insured and the independent contractor expressly requires that a specific vehicle be used by the independent contractor. Dairylea Coop., Inc. v. Rossal, 64 N.Y2d 1, 9 (1984) (milk tanker was not a hired automobile because "the tank farm milk hauling contract . . . called for transportation of milk by R & H as an independent contractor rather than use of a particular tanker in the rendition of such service"); Troops v. Gulf Coast Marine, Inc., 72 F.3d 483, 488 (5th Cir. 1996) (no coverage where there was no proof that the insured separately hired the subject vehicle or that the driver was using the vehicle with the insured's permission); Sprow v. Hartford Ins. Co., 594 F.2d 418, 422 (5th Cir. 1979) ("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"); Phillips v. Enterprise Transp. Serv. Co., 988 So.2d 418, 422 (Miss. Ct. App. 2008) (""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") (internal quotation marks omitted); 8A Couch on Insurance§ 118:45 (3d ed. 2010) ("In those situations where there is no policy definition of this term, in order to constitute a 'hired' automobile under this provision, there must be a separate contract by which the vehicle at issue is hired or leased to the insured for the insured's exclusive use or control"). Several courts have held that hired auto provisions are clear and unambiguous. See, s1.g,_, Phillips v. Enterprise Transp. Serv. Co., 988 So.2d 418, 422 (Miss. Ct. App. 2008) ("we find no ambiguity with the term 'hired auto"'); Holmes v. Brethren Mut. Ins. Co., 868 A.2d 28 155, 160 (D. of Col. Ct. App. 2005) ("Applying Maryland law, we thus conclude that its courts would find no ambiguity in the "hired auto" provision ofBrethren's policy as relates to this case, and would hold as a matter of law that it provides no coverage for the van used by Harris' driver"); Miller v. O'Brien, 168 S.W.3d 109, 116 (Mo. Ct. App. 2005) ("the provisions of the policy defining "who is an insured" for purposes of the coverage afforded under the "Hired Auto and Non-Owned Auto Liability'' endorsement is not ambiguous"); Lewis v. Progressive Gulf Ins. Co., 7 So.3d 955,960 (Miss. Ct. App. 2009) ("we find, as a matter oflaw, no ambiguity with the term 'hired auto"'); Aetna Cas. & Sur. Co. v. Kassab, 1997 WL 33344233, * 1 (Mich. Ct. App. 1997) ("There is no ambiguity in the policy's definitions of"hired auto"); U.S .. Firelns. Co. v. Ben Ali, 198 F. Supp. 2d 1313, 1318 (S.D. Fla. 2002), affd, 61 Fed. App. 669 (11th Cir. 2003) ("The term "hired" is not defined in the U.S. Fire policy, but I conclude that the natural and plain meaning of the term is not ambiguous as a matter of law"). Carlson does not contest that the Cartage Agreement did not provide for the use of specific vehicles, but instead provided that MVP had "sole discretion and control" to determine the manner and means by which it would perform cartage-related services on DHL's behalf, including determining which vehicles to use. (R. 431- 434, §§ 3.3, 3.5.1, 3.5.2). Therefore, for this additional reason, AAIC can have no liability to Carlson under the AAIC Policy. AAIC does not contend that there must be a separate contract for each hired auto, but rather that the contract between the named insured and the independent contractor needs to 29 require that a specific vehicle be used by the independent contractor. Contrary to Carlson's representation, the Cartage agreement does not provide that DHL hired all of MVP' s trucks. To the contrary, the Cartage Agreement explicitly states that it is a "Non-Exclusive Agreement,"and that Nothing in this Agreement shall prevent Contractor from performing any cartage or related services for any other person or entity." (R. 434, § 3.14.) As shown above, DHL did not control the MVP Van at the time of the accident. It is undisputed that the Cartage Agreement provided that "the manner and means by which [MVP] performs the Services shall be at [MVP's] sole discretion and control" and gave MVP "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 at§ 3.3). MVP was responsible for: (1) obtaining, furnishing, operating, and maintaining its vehicles, all of which MVP owned; (2) procuring necessary title, license, permits, and registration for its vehicles; (3) providing all fuel, lubricants, and other "supplies and consumables" for its vehicles; ( 4) obtaining insurance, on which MVP was obligated to name DHL as an additional insured; and (5) "bearing all other costs and expenses" relating to its vehicles, including fines, penalties, or fees relating to moving or traffic violations. (R. 432 - 34 at§§ 3.5.1, 3.5.2, 12). MVP could elect to retire its vehicles at any time without consulting DHL, and was 30 · solely responsible for interviewing, hiring, screening, training, disciplining, and terminating its employees. (R. 432 - 434 at§§ 3.4, 3.5.4, 5.2.) These provisions are consistent with the testimony of MVP Vice President Kevin Grupp and DHL Field District Service Manager Thomas Regan in the Underlying Action (R. 2084) that DHL "would not have had [the] right" to control the MVP Van." (R. 2084, 2090 - 2092, 2093, 2097.) Accordingly, the Cartage Agreement shows that DHL did not have control over MVP, its employees, or its vehicles. Carlson's reliance upon the verdict sheet in the Underlying Action is misplaced. The Appellate Division set aside the verdict with respect to the finding of liability against DHL on the ground that there was no reasonable view of the evidence upon which a jury could find that DHL was vicariously liable. Carlson v. Porter, 53 A.D.3d 1129, 1131 ( 4th Dep't 2008). Because the verdict was dismissed as to the finding ofliability against DHL, the verdict sheet has no impact on the present dispute, including DHL's degree of control over MVP. The opinion of Carlson's expert that the MVP Van was insured under the hired auto provisions of the Policies should be disregarded. Expert testimony is not allowed "regarding the meaning and applicability of the law, which is the province of the court." Franco v. Jay Cee ofN.Y. Corp., 36 A.D.3d 445, 448 (1st Dep't 2007), leave to appeal denied, 2007 N.Y. App. Div. LEXIS 6472 (2007) . See also Litts v. Wayne Paving Co., 261 A.D.2d 906, 906 (4th Dep't 1999) ("court properly refused to permit plaintiffs expert to render an opinion whether defendant violated provisions of the Vehicle and Traffic Law and applicable regulations"); Measom v. Greenwich & Perry St. Housing Corp., 268 A.D.2d 156, 159 (1st 31 Dep't 2000), leave to appeal denied, 95 N.Y.2d 959 (2000) ("The trial court erred in deferring to the opinion of the cooperative corporation's expert as to the legality of the apartment. Expert testimony as to a legal conclusion is impermissible. The apartment's legality presented a pure question oflaw involving statutory interpretation, which, in the first instance, is the responsibility of the court") (citations omitted). Carlson has extensively discussed in his brief extrinsic evidence regarding National Union's alleged intent. It is fundamental that interpretation of the facts is for the lower courts, and factual findings supported by the record are beyond this Court's review. El Gemayel v. Seaman, 72 N.Y.2d 701, 705 (1988). Carlson's attempt to obfuscate the insurance policy issues here by referring to alleged extrinsic evidence should be disregarded. It is a fundamental tenet of contract law that agreements are construed in accordance with the intent of the parties, and the best evidence of the parties' intent is their written contract. A "written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms, without reference to extrinsic materials outside the four comers of the document." Goldman v. White Plains Center For Nursing Care, LLC, 11 N.Y.3d 173, 176 (2008). See also Miccio v. Nat'l Sur. Corp., 170 A.D.2d 937, 938 (3rd Dep't 1991) ("When the policy on its face is clear in its terms and the sense is manifest, any resort to rules of construction or extrinsic evidence of the parties' intent is improper. This court may not find ambiguity in an insurance policy where none exists so that where, as here, the provisions of the policy are clear, the contract of insurance must be enforced as written") (internal quotation marks and citations 32 omitted). Extrinsic evidence cannot be used to create ambiguities. Texas 1845, LLC v. Kyaw, 117 A.D.3d 1028, 1031 (2nd Dep't 2014) ("A written agreement that is complete, clear, and unambiguous on its face must be enforced so as to give effect to the meaning of its terms and the reasonable expectations of the parties, and the court should determine the intent of the parties from within the four comers of the contract without looking to extrinsic evidence to create ambiguities") (internal quotation marks and citations omitted). Moreover, Carlson had a full opportunity to question National Union's underwriter on the excess policy, Barry Flynn, about the for hire provision at his deposition and chose not to do so. Carlson's failure to inquire with respect to the meaning of the term "hired auto" does not make it ambiguous. As discussed above, "hired auto" is defmed clearly in the National Union Policy. Moreover, Mr. Flynn confirmed that National Union did not intend to cover independent contractors operating their own vehicles, and that it intended to cover DHL for only any potential exposure DHL may have in connection with these independently operated vehicles. (R. 1661 - 1663, 1670). Of course, ifDHL has not been held liable, then it has no exposure contemplated by its Policy. There was simply no intent to cover MVP. In addition, since Mr. Flynn was the underwriter on the National Union excess policy, not on the AAIC policy, his testimony as to the National Union policy can have no impact on AAIC. Carlson's reliance on Manchester v. Conrad, 2012 La. App. Unpub. LEXIS 211 (La. Ct. 2012) is misplaced. In Manchester, the Court awarded summary judgment to the named insured on the ground that it was not vicariously liable, but later awarded summary judgment 33 on the ground that the truck involved in the underlying accident was a "hired auto." 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 plaintiffs vicarious -liability claim, the Court did not find that there was "no control," but 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, which was based on a limited summary judgment record, Id. at* 7, this Court's determination of the control issue was based on a full record, including the Cartage Agreement, and the testimony of witnesses who were extensively examined and cross-examined. Moreover, in Manchester, it essentially admitted that the truck was "hired," and therefore covered. Id. at* 8, 19 - 20. Here, as shown above, DHL did not control the MVP Van. This essential difference renders Manchester inapposite. Lumbermens Mut. Cas. Co. v. Morgan, 513 So. 2d 1283 (Fla. Ct. App. 1987), leave to appeal denied, 520 So. 2d 585 (1988) is also distinguishable. Although the decision in Lumbermens is sparce with respect to the control issue, the Court did note that the driver, who owned the vehicle, was prohibited by contract from hauling for any other entity other than the company which hired him. 513 So. 2d at 1284. In contrast, the Cartage Agreement explicitly states that it is a "Non-Exclusive Agreement,"and that Nothing in this Agreement shall prevent Contractor from performing any cartage or related services for any other person or entity." (R. 434, § 3.14.) Canal Ins. Co. v. Great W. Cas. Co., 2013 U.S. Dist. LEXIS 133344 (W.D. Minn. 2013) assists AAIC, not Carlson. In Canal, the Court stated, "of particular importance to the 34 hiring inquiry is whether the entity could demand a particular vehicle - otherwise courts have concluded that the entity is merely "hiring" the service and not the "auto" as required by the language of the insurance policy .... A number of factors indicate that the Kenworth may not have been a hired auto. For example, DAT did not provide routes or directions to Bartness, did not maintain the Kenworth, and did not load or unload the truck." 2013 U.S. Dist. LEXIS 133344, * 35 - 36 (citations omitted). Moreover, the trucker's application for insurance from Canal Insurance Company stated that his business class was "For Hire Trucking." 2013 U.S. Dist. LEXIS 133344 at* 9. The Cartage Agreement, in contrast, does not so state. Similarly, Valley Forge Ins. Co. v. Allstatelndem. Co.,2014N.Y. Misc. LEXIS 3366 (Sup. Ct. Kings Cty. 2013), also assists AAIC, not Carlson. In Valley Forge Ins. Co., the Court stated, "standing alone, an insured's hiring of a truck owner who provides a truck and driver to transport materials is not equivalent to "hiring" the vehicle itself so as to trigger coverage under a "hired auto" clause of the insured's auto policy. Instead, as a general rule, in order for a vehicle to be considered a "hired auto," there must be either a contract between the insured and the truck owner whereby the insured specifically leases or rents the vehicle itself or, absent such an agreement, there must be evidence that the insured exerted dominion or control over the vehicle, or at least had the authority to exert such control." 2014 N.Y. Misc. LEXIS 3366, * 19 -20. POINT IV CARLSON HAS NOT ADEQUATELY PLED A BUSINESS LAW§ 349 CLAIM 35 Carlson alleged that the defendants violated New York Business Law § 349 by misrepresenting the availability of coverage to MVP and Porter under the policies because they denied coverage for the underlying action and the resulting judgment. (R. 3 7 ,r,r 40 - 41). General Business Law§ 349 provides: "[A]ny person who has been injured by reason of any violation of this section may bring an action in his own name to enjoin such unlawful act or practice, an action to recover his actual damages or fifty dollars, whichever is greater, or both such actions." Gen. Bus. Law § 349(h). To state a claim under General Business Law§ 349, a plaintiff must allege: "(1) acts or practices that are 'consumer-oriented'; (2) that such acts or practices are deceptive or misleading in a material way; and (3) that plaintiff has been injured by reason of those acts." DePasquale v. Allstate Ins. Co., 179 F. Supp.2d 51, 58 (E.D. N.Y. 2002), affd, 50 Fed. Appx. 475 (2nd Cir. 2002) (citing Gaidon v. Guardian Life Ins. Co. of Am., 94 N.Y.2d 330, 343-44, 704 N.Y.S.2d 177 (1999), aff d, 98 N.Y.2d 214 (2002)) (other citations omitted). Therefore, "[p]arties claiming the benefit of the section [349] must, at a threshold, charge conduct that is consumer oriented. The conduct need not be repetitive or recurring but defendant's acts or practices must have a broad impact on consumers at large; '[p ]rivate contract disputes unique to the parties . . . would not fall within the ambit of the statute' ... If a plaintiff meets this threshold, its prima facie case may then be established by proving that defendant is engaging in an act or practice that is deceptive in a material way and that plaintiff has been injured by it." See Lava Trading, Inc. v. Hartford Fire Ins. Co., 326 F. Supp.2d 434, 434 (S.D. N.Y. 2004), clarified, 2004 U.S. Dist. LEXIS 7618 (2004) (citing 36 N.Y. Univ. v. Continental Ins. Co., 87 N.Y.2d 308, 320 (1995)). See also MaGee v. Paul Revere Life Ins. Co., 954 F. Supp. 582, 586 (E.D. N.Y.1997) ("The injury must be to the public generally as distinguished from the plaintiff alone"). In addition, although General Business Law § 349 does not require Carlson to allege fraud or misrepresentation, and therefore the particularity requirements CPLR § 3016(b) are not triggered, the requirements ofCPLR § 3013 still apply. To state a claim under General Business Law § 349, Carlson must still allege with specificity the allegedly deceptive acts or practices that establish the necessary element for the claim. Thus, conclusory allegations that fail to allege some policy or design to deceive the public are insufficient to state a claim under§ 349. See Northwestern Mut. Life Ins. Co. v. Wender, 940 F. Supp. 62, 65 (S.D. N.Y. 1996) (section 349 claim dismissed where there were no specific allegations of an impact on consumers at large, or that the plaintiff employed deceptive practices); Grand Gen. Stores, Inc. v. Royal lndem. Co., 1994 U.S. Dist. LEXIS 5251, * 7 (S.D. N.Y. 1994) ("As a prerequisite to liability, the plaintiff must establish injury to the public generally, as opposed to harm to the plaintiff alone"); MaGee v. Paul Revere Life Ins. Co., 954 F. Supp. at 586 ( allegations that insurer's refusal to pay benefits "is part of a national policy to terminate unprofitable disability insurance policies by denying benefits to insureds . . . " is inadequate to state a claim under Section 349. "Indeed, any other conclusion would effectively permit a plaintiff to convert almost any garden variety breach of contract cause of action into a violation of Section 349"); Harary v. Allstate Ins. Co., 983 F. Supp. 95, 98 - 99 (E.D. N.Y. 1997) (collecting cases considering adequacy of pleading). 37 To defeat a motion to dismiss or motion for judgment on the pleadings, a plaintiff advancing a claim under § 349 "must allege facts showing injury or potential injury to the public." Greenspan v. Allstate Ins. Co., 937 F. Supp. 288,294 (S.D. N.Y. 1996) (emphasis added). " [ A ]ny other conclusion would permit a plaintiff to convert any garden variety breach of contract cause of action into a violatio:t;1. of [G.B.L. §] 349." MaGee, 954 F. Supp. at 586. Carlson has not alleged a single fact which demonstrates injury to the public at large. Instead, he only alleges that, upon information and belief, the defendants engaged in an industry-wide practice of falsely claiming lack of available liability coverage. (R. 3 8 8 - 3 89.) This is legally insufficient to save this claim. See MaGee v. Paul Revere Life Ins. Co., 954 F. Supp. 582, 586 (E.D. N.Y. 1997) (unsupported inferences are insufficient to show consumer-oriented injury). Carlson's statement is nothing more than speculation about what was done with respect to other consumers. In the context of a denial of coverage, courts routinely dismiss such claims as insufficient to support a§ 349 violation. See,�' Shapiro v. Berkshire Life Ins. Co., 212 F .3d 121, 126 (2nd Cir. 2000) (private dispute concerning coverage under a particular policy is not consumer-oriented, and an insurer's denial of a claim is not deceptive simply because a party believes it is mistaken); 0.K. Petro. Distrib. Corp. v. Travelers Indem. Co., 2010 U.S. Dist. LEXIS 71465, * 12 - 14 (S.D. N.Y. 2010)(unsupported and speculative allegations that insurer's practices are part of a systemic program aimed at policyholders generally and that they impact consumers at large are insufficient to proceed with General Business Law § 349 claim); AzbyBrokerage. Inc. v. Allstate Ins. Co., 681 F. Supp. 1084, 1089 (S.D. N.Y.1988) 38 (finding acts pleaded in complaint against insurance company "not the types of transactions that fall within the scope of [ GBL § 349] ", because "consumers have not been harmed and the public interest has not been implicated"). Several courts have considered whether disputes between policy holders or potential claimants and insurance companies concerning the scope of coverage can amount to conduct falling within Section 349. "Almost uniformly, those courts have held that such disputes are nothing more than private contractual disputes that lack the consumer impact necessary to state a claim pursuant to Section 349." DePasquale v. Allstate Ins. Co., 179 F. Supp. 2d 51, 62 (E.D. N.Y. 2002), aff d, 50 Fed. Appx. 475 (2nd Cir. 2002) (collecting cases). Carlson alleges a violation of General Business Law § 349 based upon the allegations that the defendants allegedly improperly denied coverage. Notwithstanding the fact that AAIC never denied coverage until it moved to dismiss the complaint, Carlson's claimed injury is alleged solely with respect to his own dealings with the defendants. Carlson has not met the requirements of pleading consumer-oriented harm. Instead, Carlson's allegations appear to be nothing more than a private dispute with National Union and AAIC about whether coverage is owed. Such allegations are insufficient to state a claim under General Business Law § 349. The cases cited by Carlson are distinguishable. In JD&K Assoc., LLC v. Selective Ins. Group Inc., 118 A.D.3d 1402 (4th Dep't 2014), an insured sought a declaration of coverage for two large depressions that appeared in the concrete slab floor of the building. Among the claims asserted was a claim under § 349. With respect to the § 349 claim, the 39 Court noted the plaintiffs allegation that the insurers's investigator, who examined the loss and prepared a report recommending a denial of coverage, was not an engineer and the insurers had misrepresented his credentials to plaintiff, id. at 571, as well as the plaintiffs allegation that the insurers's conduct in using unqualified individuals to analyze and deny coverage was deceptive and part of a pattern of conduct that was not unique to the plaintiff, but was directed at their policyholders generally. Id. Given these allegations, and that discovery remained outstanding as to these issues, the Court ruled that summary judgment was premature. Id. In Makuch v. N.Y. Cent. Mut. Fire Ins. Co., 12 A.D.3d 1110, 1111 (4th Dep't 2004), the Court denied the insurer's motion to dismiss the plaintiffs § 349 claim. The Court ruled that the allegations that the policy forms used to deny coverage to the plaintiff were standard and regularly used by the defendant were sufficient to support the allegation that defendant's actions are consumer-oriented. In this case, there is no allegation that the defendants did anything more than, in Carlson's opinion, improperly deny coverage. There are no accompanying factual allegations to support, or even suggest, a claim of a repetitive pattern of conduct aimed at the public at large. Accordingly, the Appellate Division properly dismissed Carlson's claim under General Business Law § 349. POINT V THE APPELLATE DIVISION PROPERLY HELD THAT THE SUPREME COURT CORRECTLY DISMISSED CARLSON'S SECOND CAUSE OF ACTION AGAINST AAIC FOR MISREPRESENTATION Carlson's second cause of action for misrepresentation is ba$ed on the allegation that 40 the defendants "made a representation to plaintiff, Carlson, and their insureds, MVP and Porter, that liability insurance coverage available to MVP and Porter in connection with the subject accident was limited to $1,000,000, and that there was no coverage under the subject policies issued to DHL and Airborne." (R. 385, il 20.) Carlson alleges (R. 385 - 386, ilil 24 - 26) that this representation was false, and that he relied on this representation to his detriment by "focusing its trial efforts on establishing DHL's vicarious liability and control over MVP, thereby changing the manner in which the case was tried, and ultimately appealed, and resulting in the additional costs of pursuing defendants that were not necessary to the prosecution of the action," which could have been avoided if defendants had conceded that MVP and Porter were covered under the policies. (R. 385 - 386, ,I,124 - 26.) The Appellate Division properly held that Carlson's second cause of action for misrepresentation "is without merit." (R. 11.) The second cause of action fails to satisfy the pleading requirements ofCPLR 3016(b). CPLR 3016(b) requires that a complaint alleging fraud or misrepresentation set forth the misconduct complained of in "detail" sufficient to clearly inform the defendant what his role was in the incidents complained of. See P. T. Bank Cent. Asia v. ABN AMRO Bank N.V., 301 A.D.2d 373, 377 (1st Dep't 2003); Simmons v. Washing Equip. Tech., 51 A.D.3d 1390, 1391 - 92 (4th Dep't 2008) (""[T]o properly plead a cause of action for fraud, the essential elements[, i.e., misrepresentation of a material fact, scienter, justifiable reliance, and injury,] must be supported by factual allegations sufficient to satisfy the requirements of CPLR 3016 (b), . . . [pursuant to which] the circumstances constituting the alleged fraud must be stated in detail") (internal quotation marks omitted, 41 brackets and ellipse in original). Carlson has failed to allege the circumstances constituting the alleged wrong "in detail." The complaint does not allege even basic essential facts about AAIC's alleged misrepresentation, including: 1) who at AAIC made the alleged misrepresentation, 2) when and where the alleged misrepresentation was made, or 3) how Carlson relied on the misrepresentation to his detriment. In addition, the complaint is unclear as to what allegedly was misrepresented. The only representation allegedly made to Carlson's counsel was that no coverage was available to MVP or Porter under DHL's policies. This is a fact, not a misrepresentation. (See R. 1041, ,r 6). If, on the other hand, Carlson's intent was to allege a claim for misrepresentation based on some breach of contract by AAIC (i.e., that AAIC allegedly improperly denied coverage), then a separate claim for misrepresentation based on breach of contract is not permitted where the allegations do not allege circumstances extraneous to the performance of the contract, as it is duplicative. N.Y. Univ. v. Continental Ins. Co., 87 N.Y.2d 308,316 - 17 (1995); Rocco v. Town of Smithtown, 229 A.D.2d 1034, 1034 (4th Dep't 1996). Moreover, the alleged misrepresentation was not made by AAIC. Instead, it came from "DHL's responses to plaintiffs discovery demand for all available insurance coverage." (R. 1571.) Since AAIC did not make this alleged representation, no misrepresentation claim can lie against AAIC. Further, Carlson cannot possibly prove reasonable reliance on any misrepresentation to his detriment, as required by a legitimate misrepresentation claim. See Investor Prot. 42 Corp. v. BDO Seidman, L.L.P., 95N.Y.2d 702, 709 (2001). It is now over eleven years after the accident, more than ten years after Carlson commenced the underlying suit, and over nine years after the jury rendered its verdict. It is simply not possible that Carlson relied on any denial of coverage with respect to these events. Moreover, Carlson's claim that he detrimentally relied upon the Defendants's representation that they did not provide coverage to MVP and Porter because that led Carlson to pursue defendants other than MVP and Porter (including DHL) is belied by the fact that he already had sued DHL by the time he served discovery demands on DHL, which he now claims form the basis of his misrepresentation claim. POINT VI THE APPELLATE DIVISION PROPERLY HELD THAT LOWER COURT CORRECTLY DISMISSED CARLSON'S THIRD CAUSE OF ACTION FOR ALLEGED BAD FAITH IN REFUSING TO SETTLE THE CLAIM Carlson's third cause of action is based on his allegation that the Defendants "had an opportunity to settle Carlson's claim [ on Porter's behalf] before the trial and after the judgment, and that [Defendants], in bad faith, refused to make such settlement or payment." (R. 387, ,r 32.) Carlson can prevail on this cause of action only if he establishes that: 1) Porter lost an actual opportunity to settle the Underlying Action when there was no doubt of his liability; and 2) AAIC acted with gross disregard for Porter's interests by engaging in a pattern of behavior evincing a conscious or knowing indifference to the probability that Porter would be held personally accountable for a large judgment if a settlement offer within the policy limits were not accepted. See Doherty v. Merchants Mut. Ins. Co., 74 A.D.3d 43 1870, 1871 (4th Dep't 2010), appeal withdrawn, 17 N.Y.3d 812 (2011). Carlson brought suit against DHL, MVP and Porter in the underlying litigation. The Appellate Division dismissed AAIC's and National Union's insured, DHL, from the case, ruling that DHL could not be vicariously liable for Carlson's injuries. Porter is not an insured under the AAIC Policy, and thus, AAIC had no right, obligation or duty to settle the action on his behalf. Thus, Carlson's claim that AAIC somehow refused in bad faith to settle the underlying claim is baseless. Moreover, as shown above, AAIC had, at the very least, an arguable case for its position that the AAIC Policy does not provide coverage to Carlson. Therefore, as a matter of law, AAIC could not have acted in bad faith. See Dawn Frosted Meats, Inc. v. Ins. Co. Of N. Am., 99 A.D.2d 448 (181 Dep't 1984), affd for the reasons stated by the Appellate Division, 62 N.Y.2d 895 (1984) ("Proof of an insurer's bad faith requires an extraordinary showing of disingenuous or dishonest failure to carry out a contract . . . These requirements cannot possibly be met where the insurance carrier has an arguable case for denying coverage") (internal quotation marks and citations omitted); Bennion v. Allstate Ins. Co., 284 A.D .2d 924, 925 ( 4th Dep't 2001) (summary judgment granted in favor of insurer on bad faith cause of action where insurer "had an arguable basis on which to disclaim coverage"); Zurich Ins. Co. v. Texasgulf, Inc., 233 A.D.2d 180, 180 - 81 (1st Dep't 1996) ("a claim of bad faith must be predicated on the existence of coverage of the loss in question. This is especially true in New York where a mere arguable basis for the insurer's denial of coverage has been sufficient to defeat, as a matter oflaw, a claim of bad faith") (internal quotation marks and 44 citations omitted). Moreover, as shown above, there is no coverage for Carson. Since Carlson cannot establish that he is entitled to coverage, and that coverage was improperly denied, there is no basis for a claim of bad faith refusal to settle. Accordingly, the Appellate Division properly held that the lower court had correctly dismissed Carlson's third cause of action. CONCLUSION For the reasons set forth herein, the Appellate Division's decision should be affirmed. Dated: New York, New York June 1, 2016 Respectfully submitted, :�mp:;7cNLLP Paul Kovner, Esq. Aaron F. Fishbein, Esq. 630 Third Avenue, 3rct Floor New York, New York 10017 (212) 953-2381 AFishbein@rubinfiorella.com Our File No. 0495.18855 Counsel for Defendant-Appellant-Respondent American Alternative Insurance Company 45