Michael J. Carlson, Sr.,, Appellant,v.American International Group, Inc., et al., Respondents.BriefN.Y.October 18, 2017APL 2016-00041 Niagara County Clerk’s Index No. E143033/11 Appellate Division–Second Department Docket Nos. CA 13-01599 and 14-02027 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. and AIG DOMESTIC CLAIMS, INC., Defendants, – and – AMERICAN ALTERNATIVE INSURANCE CO., Defendant-Respondent, – and – NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA and DHL EXPRESS (USA), INC. f/k/a DHL Worldwide Express, Inc., Defendants. –––––––––––––––––––––––––––––– (For Continuation of Caption See Inside Cover) BRIEF FOR AMICUS CURIAE NEW YORK STATE TRIAL LAWYERS ASSOCIATION SUZANNE Y. MATTEI General Counsel NEW YORK STATE TRIAL LAWYERS ASSOCIATION 132 Nassau Street, Suite 200 New York, New York 10038 Tel.: (212) 349-5890 Fax: (212) 608-2310 Dated: January 31, 2017 MICHAEL J. CARLSON, SR., Individually and as Administrator of the Estate of CLAUDIA D’AGOSTINO CARLSON 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 and DHL EXPRESS (USA), INC. f/k/a DHL Worldwide Express, Inc., Defendants-Respondents. CORPORATE DISCLOSURE STATEMENT Pursuant to 22 NYCRR § Rule 500.1(f), the New York State Trial Lawyers Association states that it is a voluntary bar association and private not-for-profit corporation overseen by a Board of Directors. The New York State Trial Lawyers Association has no parent corporation or subsidiaries. The New York State Trial Lawyers Association has affiliate chapters, including the Capital Region, Central Region, Genesee Region, Long Island Region, Mid-Hudson Region, Southern Tier Region, Staten Island Region, Westchester Region and Western Region; the Staten Island Regional Affiliate is incorporated. The New York State Trial Lawyers Association is affiliated with the national American Association for Justice. Other legal entities separately incorporated and separately managed on which one or more officers of the New York State Trial Lawyers Association serve include the New York State Trial Lawyers Institute (which provides continuing legal education programs), the Lawyers Political Action Committee of New York, the Municipal Political Action Committee, and the Big Apple Pothole & Sidewalk Corporation (a map information service). i TABLE OF CONTENTS Page Table of Authorities ………………………………………………… i Preliminary Statement ……………………………………………… 1 Facts …………………………………………………………………. 1 Argument……………………………………………………………. 5 POINT I: THE FOURTH DEPARTMENT’S DECISION INSULATES OUT-OF-STATE INSURERS FROM NEW YORK INSURANCE LAW §3420, THEREBY EXPOSING MEMBERS OF THE PUBLIC TO INSURED RISKS WITHIN THE STATE THAT ARE NOT PROTECTED BY THE STATE’S INSURANCE STATUTE………………………. 5 POINT II: WHEN AN INSURER DECIDES TO PROVIDE COVERAGE, CALCULATES, CHARGES AND COLLECTS A PREMIUM AND WRITES THE INSURANCE FOR THAT COVERAGE, THE COURT MAY NOT OBLITERATE THAT DECISION AND ERASE COVERAGE FOR THOUSANDS OF VEHICLES ON THE ROAD………………………………..…..…….. 10 Conclusion …………………………………………………………… 17 ii TABLE OF AUTHORITIES Cases Admiral Insurance Co. v Joy Contractors Inc., 81 AD3d 521 (1st Dep’t 2011)….9 Braschi v. Stahl Associates Co., 74 NY2d 201 (1989)…………………………….7 Dairylea Cooperative, Inc. v. Rossal, 64 NY2d 1 (1984) ………………………..15 Manchester v. Conrad, 90 So3d 554 (La Ct App 1st Cir., 2012) ……..…………..14 Old Republic Ins. Co. v. Stratford Ins. Co., 777 F3d 74 (1st Cir. 2015) …...…10, 14 Preserver Ins. Co. v. Ryba, 10 NY3d 635 (2008) …………………………...…….6 Trimarco v. Klein, 56 NY2d 98 (1982) ……………………………...…………….7 Statutes, Regulations, Other Authority: Insurance Law § 3420………………………………………..………………passim N.Y. Stat. Law § 341 (McKinney) ……………………………..………………….7 49 Code of Federal Regulations 387.9…………………………….……………….1 Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 527 [1947]) ………………………………………….…………………………….8 1 PRELIMINARY STATEMENT The New York State Trial Lawyers Association (“NYSTLA”) submits this brief in support of plaintiff’s position on this Appeal with respect to two discrete issues: 1) The applicability of New York State Insurance Law §3420 to out-of- State insurers; and 2) whether an insured’s decision to calculate, charge, and collect premiums and provide insurance coverage for an insured can be wiped out by the court. FACTS In 2004, DHL Worldwide Express, Inc. (“DHL”), was an international shipping and logistics company that had operations in the United States utilizing approximately 15,000 vehicles, including approximately 7,300 vehicles that it owned and 7,700 vehicles that it hired through independent contractors. DHL hired its independent contractors pursuant to very detailed cartage agreements that required the contractors to haul cartage exclusively on behalf of DHL and set forth in precise detail the operations of the contractors’ business. Further, DHL required its contractors to haul hazardous materials interstate. Pursuant to 49 CFR 387.9, an interstate carrier of hazardous materials was required to maintain $5 million of insurance coverage. 2 DHL only required its contractors to maintain $1 million of insurance coverage. DHL put its contractors in compliance with the Federal regulations by purchasing insurance policies that provided for “hired auto” coverage. Significantly, under the “hired auto” provisions of DHL’s insurance policies, the vehicles of DHL’s contractors were covered autos and, most importantly, the contractors and their drivers were insureds under DHL’s policies when using the hired autos with permission. Plaintiff’s decedent, Claudia D’Agostino Carlson, was traveling east bound in the Town of Tonawanda, New York, when she was struck by William Porter, who was driving a van owned by his employer MVP Delivery and Logistics, Inc., (“MVP”). MVP was a contractor of DHL. Porter veered across a double solid yellow line, striking Mrs. Carlson’s vehicle head on and causing injuries that resulted in her death thirteen days later, on July 20, 2004. At the time of her death, Mrs. Carlson was 37 years of age and the mother of: Michael Carlson, Jr., age seven; Dylan Carlson, age five; and Hannah Carlson, age one. Mrs. Carlson was working as a certified public accountant at the time of her death. Plaintiff commenced an action against MVP, Porter, and DHL, among other defendants in Niagara County Supreme Court. On August 25, 2006, a jury rendered a verdict in favor of plaintiff Carlson and against MVP, Porter, and DHL for the sum of twenty million dollars ($20,000,000). The jury specifically found 3 that DHL controlled the day-to-day operations of MVP and held it as a defendant under a theory of respondeat superior liability. The jury’s verdict and judgment thereon were modified by the Fourth Department and, plaintiff having stipulated to the modification on May 12, 2009, a Second Amended Judgment was entered against MVP and Porter, jointly and severally for the sum of seven million three hundred ten thousand three hundred and forty four dollars ($7,310,344). The Fourth Department reversed the jury’s finding regarding DHL and held that since Porter was on a personal errand at the time of the accident, DHL could not be held vicariously liable for his actions. Plaintiff brought the present action against DHL’s insurers, National Union Fire Insurance Company of Pittsburgh, PA (“National Union”) and American Alternative Insurance Co. (“AAIC”), among other defendants, based on Plaintiff’s contention that Porter and MVP are insureds under DHL’s commercial automobile policies pursuant to the policies’ “hired auto” provisions. The Fourth Department’s decision with respect to respondeat superior has no bearing on Porter’s status as an insured. Defendants moved to dismiss plaintiff’s complaint. AAIC has its principal place of business located in New Jersey. The insurance policy was originally delivered in Washington State, where its original insured, Airborne, had its headquarters and subsequently delivered to DHL’s headquarters in Florida, when 4 the named insured on the policy was changed to DHL. At all times, the policy was a national insurance policy covering risks in all states, including New York. Notably, at all times, the named insured on the policies, Airborne and DHL, had offices located within New York State. AAIC contends that the location of the accident and its insured’s New York operations have no bearing on the analysis of whether the policy was “issued or delivered” in New York. AAIC contends that it cannot be sued under New York Insurance Law §3420. The Fourth Department incorrectly agreed that § 3420 cannot apply to AAIC’s policy in this case. With respect to the second issue, through the limited discovery done in this matter, it is apparent that the insurers, National Union and AAIC had decided when underwriting the subject insurance policies that the independent contractors hired by DHL, pursuant to detailed cartage agreements, would be insureds on DHL’s commercial automobile policies. The vehicles of the independent contractors that were used to haul cartage exclusively on behalf of DHL were covered as “hired autos” under these policies. Documents from National Union’s underwriting files make it clear that the premiums to cover the independent contractor vehicles as hired autos were calculated, charged and collected. Thus, the policies obviously covered independent contractor vehicles, including MVP’s vehicles, as “hired autos.” In 2004, 7,717 vehicles were covered as hired autos on DHL’s policies. 5 The Fourth Department in this case wiped out this insurance coverage for the 7,717 vehicles based upon its analysis of the “hired auto” provisions of the insurance policies. Despite evidence of the insurers’ intent and their actions in calculating, collecting and charging premiums for the independent contractor vehicles covered as “hired autos,” the Fourth Department held that the vehicles do not have coverage under these policies. This decision by the Fourth Department is contrary to state public policy, the intent of which is that vehicles operating in New York be covered by adequate insurance to protect the public good. It is also contrary to the intent of National Union to its named insureds when the policy was written. ARGUMENT POINT I: THE FOURTH DEPARTMENT’S DECISION INSULATES OUT-OF-STATE INSURERS FROM NEW YORK INSURANCE LAW §3420, THEREBY EXPOSING MEMBERS OF THE PUBLIC TO INSURED RISKS WITHIN THE STATE THAT ARE NOT PROTECTED BY THE STATE’S INSURANCE STATUTE. New York Insurance Law §3420 is designed to protect individuals who suffer personal injuries and families whose loved ones die as a result of tortious conduct. It is an important law allowing tort victims to bring suit directly against insurers who fail to timely make payment of a valid judgment. Yet the Fourth Department’s decision prevents New York citizens from bringing suit under 6 Insurance Law §3420, even when the insurance policy covers risks in New York, simply if the policy was issued outside of the State. This decision would negate the applicability of Insurance Law § 3420 for tort victims who are injured by any insured who has offices located outside of New York State. The legislative intent of Insurance Law § 3420 is to protect the tort victims of New York State, not to place insurmountable obstacles in their path. Here, the AAIC policy was an excess insurance policy providing the middle layer of coverage to DHL and the other insureds on the policy. It is undisputed that DHL had offices throughout New York State. DHL was in the shipping and logistics business and had approximately 15,000 trucks (including its owned and independent contractor vehicles) on the road nationwide, including thousands of vehicles traveling in and through New York State. The insured, therefore, had offices and risks located within New York State. Under Preserver Ins. Co. v. Ryba, 10 NY3d 635 (2008), and all other case law prior to the Fourth Department decision at issue, those facts would carry the day, and Insurance Law §3420 would apply to AAIC. However, in this case, the Fourth Department found a distinction between the amended language of Insurance Law § 3420, which states that the statute applies to policies in the State “issued or delivered” in the State compared to the prior language of Insurance Law § 3420 “issued for delivery.” The Fourth 7 Department, despite no argument from either party, including AAIC, on this point, held that the amended language of § 3420 significantly limits § 3420 and renders the prior legal principle no longer applicable. It did not matter to the Fourth Department that DHL had offices or insured risks within the State. The Fourth Department took an unprecedented and exceedingly narrow view of Insurance Law § 3420 and limits the section to prevent its application even where the insured has offices and risks for which it has purchased coverage in New York. Such a distinction serves the insurance industry, but not the purpose of the statute. The general rule is that statutes designed to promote the public good will receive a liberal construction and be expounded in such a manner that they may, as far as possible, attain the end in view. N.Y. Stat. Law § 341 (McKinney). Moreover, it has long been held that “if a statutory scheme intended for the protection of a particular class, as is the one here, does not expressly provide for civil liberty, there is responsible authority for the proposition that a court may, in furtherance of the statutory purpose, read in such an intent.” Trimarco v. Klein, 56 NY2d 98, 108 (1982). Such statutes, therefore, will not be construed so as to advance a private interest at the expense of the public good. Braschi v. Stahl Associates Co., 74 NY2d 201, 208 (1989). Further, where a problem as to the meaning of a given term arises, a court's role is not to delve into the minds of legislators, but rather to 8 effectuate the statute by carrying out the purpose of the statute as it is embodied in the words chosen by the Legislature (see, Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum.L.Rev. 527, 538–540 [1947]). With regard to Insurance Law §3420, the statute was clearly intended to promote the public good and allow tort victims to initiate direct actions against insurers. The Fourth Department’s narrowing of the statute based upon arbitrary and random factors such as the location of the headquarters of the insurer fails to carry out the intentions of the Legislature to protect tort victims in New York. The Fourth Department’s interpretation would serve private interests over the public good in direct contrast to the Legislative intent of the statute and would entice and encourage companies with multiple offices to simply issue and deliver the insurance policy outside of the State. This decision is especially egregious in a factual scenario such as the present case, where AAIC served as a middle layer of coverage. In practice, this decision creates identical litigation in multiple States on the same issue. Here, the plaintiff’s § 3420 action was brought against all of DHL’s insurers based on the language of the policies’ hired auto provisions. (See further argument in Point II). It is obvious that plaintiff, the insurers and judicial economy all benefit by having one case where the parties can brief and argue these issues against National Union and AAIC together. Under the Fourth Department’s new interpretation of 9 Insurance Law § 3420, plaintiff in a similar situation would be forced to bring one action against National Union in New York State, and another action against AAIC in Seattle, Washington. The cases would be otherwise identical. The Legislature created this statute to allow New York citizens to bring suit, not force them to force the citizens of this State to travel to Seattle to obtain justice. Such an outcome should not be permitted to stand. It must also be noted that the Fourth Department’s opinion is in disagreement with the First Department’s Decision in Admiral Insurance Co. v Joy Contractors Inc., 81 AD3d 521, 523 (1st Dep’t 2011), which recognized that the Preserver standard continues to apply even after the 2008 amendment to § 3420-d. Such a determination by the Fourth Department completely defeats the 2008 amendments to Insurance Law § 3420, which were designed to have the opposite effect. Indeed, those amendments were created to expand Insurance Law § 3420 to more tort victims seeking redress from insurers who wrongfully deny paying claims. However, this decision would dramatically limit tort victims’ rights in bringing §3420 cases against out-of-state insurers. Respectfully, the Fourth Department decision on this issue must be reversed. 10 POINT II: WHEN AN INSURER DECIDES TO PROVIDE COVERAGE, CALCULATES, CHARGES AND COLLECTS A PREMIUM AND WRITES THE INSURANCE FOR THAT COVERAGE, THE COURT MAY NOT OBLITERATE THAT DECISION AND ERASE COVERAGE FOR THOUSANDS OF VEHICLES ON THE ROAD. The State has a strong incentive to ensure that adequate insurance coverage is available for tort victims who are insured as a result of the vehicles traveling the roads and highways of New York State. As the First Circuit recently held in Old Republic Insurance Co. v. Stratford Insurance Co., 777 F3d 74, 83 (1st Cir. 2015) “where the intent of the contracting parties can be conclusively resolved by objective extrinsic evidence, we will not ignore that evidence in favor of dogmatic adherence to insurance maxims.” The public at large must be confident that when insurance is written and sold in this State that the coverage will be provided when a valid claim is made under the insurance policy. The Fourth Department’s decision in this case ignores the defendant insurers’ clear intent to provide coverage for over 7,000 vehicles and the named insured’s decision to pay for such coverage. If allowed to stand, this decision would send the tort system into chaos. It would be impossible for any insured to know whether they are covered unless a court determines such coverage after the incident. Where it is clear, as in this case, that insurance was purchased, paid for and provided, the Court may not interfere and cancel that coverage. 11 It is undisputed that the independent contractor vehicles DHL hired to haul cartage on its behalf, hauled hazardous materials interstate, and were required to maintain $5,000,000 in minimum insurance coverage. It is also undisputed that DHL’s independent contractors, such as MVP, carried only $1,000,000 in insurance coverage through their own insurer. Further, it defies logic that a sophisticated international leader in the logistics and shipping industry would fail to make up the $4,000,000 gap. Indeed, the evidence overwhelmingly demonstrates that DHL did just that by purchasing insurance policies through National Union and AAIC, which covered its independent contractors and drivers through the policies’ hired auto provisions. In particular, National Union Vice President, Robert Osborne, stated in a December 3, 2002 email, “[c]overage to include comprehensive auto liability non- owned and hired . . . .” (R. 1637). National Union clearly intended and did provide coverage for hired vehicles. Moreover, National Union never submitted an affidavit or sworn statement showing that it did not provide coverage for hired vehicles. The hired vehicles covered by these policies are obviously the vehicles used by DHL’s independent contractors and their drivers pursuant to the cartage agreement. The cartage agreement was obtained by National Union before issuing the policies. The Fourth Department stepped in and flatly contradicted National 12 Union’s own determination when selling the policy, by deciding that no coverage existed for the independent contractors and their drivers. This decision wipes out insurance coverage for over 7,700 vehicles nationwide. In a November 19, 2002 email, between AIG employees, Colleen Driscoll and Eleanor Howell, Ms. Driscoll is requesting, amongst other things, confirmation that the underlying policies provide insurance coverage for the independent contractor vehicles as shown in the email itself: “[t]he submission states that there are 15,000 vehicles with 7,283 owned which leaves 7,717 for non-owned. It also states that the radius for the non-owned (independent contractors) is 300 miles. We will need confirmation of this. We will also need the break-out of vehicles. The re-insurers will require this and charge for this with the required limits of only $1M [$1 million] for the independent contractor vehicles, we should consider putting a retained amounts endorsement. Please confirm that the u/l policy [underlying policy] $2M CSL [$2 million combined single limit] for these vehicles”. (R. 1659). On November 19, 2002, Ms. Howell responded to Ms. Driscoll by confirming that the underlying primary insurance policy provides insurance coverage for the non-owned and hired fleet: “[c]an confirm the primary picks-up [non- owned] and hired fleet. They are also required to carry $1ml [$1 million] per this contract attaching at $3ml [$3 million] since the Kemper Policy is $2ml xs $1ml [$2 million in excess of 13 $1 million] deductible and applies in excess of the $1ml [$1 million] carried by contracted autos”. (R. 1659). The 7,717 vehicles referenced in the November 19, 2002 emails refer to the “hired fleet” that are the independent contractor vehicles hired by the Cartage Agreement. The vehicle count was necessary to assess the risks associated with using hired autos, and to properly price the policies. (R. 1617, 1674). The contract referred to in the November 19, 2002 emails is the Cartage Agreement that Airborne, and then DHL, required independent contractors to sign. (R. 141-143). This type of agreement is standard in the industry when companies hire independent contractors to haul freight on their behalf. The phrase “the primary picks up” referred to in Ms. Howell’s November 19, 2002 email means that the primary policy provides insurance coverage for the non-owned and hired fleet. Thus, the hired fleet, which were the independent contractor vehicles hired pursuant to the Cartage Agreement, were “covered autos” under the policies. Based upon the abundance of references to the “hired fleet” and to independent contractors hauling freight on behalf of Airborne/DHL, the AIG underwriters assessed the risks associated with Airborne and DHL’s hiring of independent contractors to haul freight on their behalf. 14 In fact, National Union underwriter Barry Flynn also recognized that contractors, like MVP, were to be covered under DHL’s policy (R. 1616-1617). He made a hand-written note that states: [W]e have included the non-owned exposure of independents driving their own vehicles, in addition all independents are required to carry one million in limits which would increase the umbrella attachment point. (R. 1666, 1676). The underwriting materials also show that DHL paid premiums to provide hired auto coverage for the 7,717 independent contractor vehicles. There is evidence of a “Schedule of Hired Auto Coverage” that is listed to be “on file” with company (R. 184), but is yet to be produced in this case. (At the time of the Fourth Department decision, discovery in the case was ongoing and several document and deposition requests were pending. Moreover, the depositions of officers and directors of defendants were not completed in time to be included in the present Record on Appeal.) Like this case, the First Circuit Court dealt with the question of hired auto coverage recently. Old Republic v. Stratford Ins. Co., 777 F3d 74, 79 (1st Cir. 2015). The First Circuit Court “considered the pricing estimate, background and circumstances, as informed by the lease agreement” between the parties. Additionally, the court in Manchester v. Conrad, 90 So3d 554 (La Ct App 1st Cir., 2012) reported at 2012 WL 602185, also referred to both the cost of hire schedule 15 and the fact that premiums were paid to obtain hired auto coverage for contractor delivery trucks, in finding that the contractor vehicles were covered as hired autos. The conclusions of the National Union underwriters that the independent contractor vehicles made up the “hired fleet”, and that the hired fleet was considered when calculating the risk exposure under the Policies are enough to show that the MVP Van was covered under the Policies, as a hired auto. The undisputed facts that National Union calculated, charged and collected a premium to cover DHL’s independent contractor vehicles as hired autos, under these policies, prevent the courts from obliterating insurance coverage for 7,717 vehicles; leaving the vehicles underinsured and the public in general at greater risk. This is especially true given the fact that hazardous material may be on board. The Fourth Department’s decision to ignore the underwriting materials in this case sets a dangerous precedent, and allows courts to intervene and materially alter an insurance contract when the parties to that insurance contract have already agreed that coverage existed. In examining the Fourth Department’s analysis of Dairylea Cooperative, Inc. v. Rossal, 64 NY2d 1, 7 (1984), the Fourth Department did not simply analyze the facts of this particular case, but looked at DHL’s entire business model and determined that DHL’s cartage agreements with its independent contractors were not sufficient to qualify the independent contractor vehicles as “hired autos” under DHL’s insurance policies. 16 Such an analysis was unnecessary because the insurance company already did the analysis and wrote the insurance. There was an abundance of proof that DHL purchased insurance coverage for its independent contractors. The courts should not be in the business of reviewing the insurance company’s decision to write and sell the insurance coverage at issue. If this becomes the prevailing law, no party could ever be confident that insurance coverage actually existed, even when the insurer agrees to provide coverage, and calculates charges and collects a premium for the coverage. In this case, the intent of the insurer cannot be questioned. Here, National Union sold the coverage, and then had its lawyers (not any of its own employees) deny that the insurance was ever sold. However, the court decided to cancel the coverage the insurer sold. This cannot be the law in New York State. Such a policy would allow insurers to sell insurance and then take its chances with the court when a claim is made. This would create chaos in the insurance industry and a massive increase of litigation by tort victims against insurers under Insurance Law §3420. The facts of this case, at the very least, warrant a denial of defendants’ motions for dismissal. Accordingly, the Fourth Department’s decisions in this case must respectfully be reversed. CONCLUSION WHEREFORE, it is respectfully submitted that this Court should reverse the decision of the Appellate Division, Fourth Department, and grant any other, further or different relief as it deems just, proper, and equitable. Dated: New York, New York January 31, 2017 17 General Counsel New York State Trial Lawyers Association 132 Nassau Street, 2nd Floor New York, New York 10038 Telephone (212) 349-5890 Facsimile: (212) 608-2310 NEW YORK STATE COURT OF APPEALS CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 NYCRR PART 500.1(j) that the foregoing brief was prepared on a computer using Microsoft Word. Type. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double Word Count. The total number of words in this brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, questions presented, certificate of compliance, and corporate disclosure statement is 3,713 words. Dated: January 31, 2017 New York, New York Suzanne Y. Mattei General Counsel and Attorney for proposed Amicus Curiae New York State Trial Lawyers Association 132 Nassau Street New York, New York 10038-2436 (212) 349-5890