Keyspan Gas East Corporation, Appellant,v.Munich Reinsurance America, Inc., Defendant, Century Indemnity Company et al., Respondents.BriefN.Y.February 6, 2018To Be Argued By: ROBERT A. LONG (admitted pro hac vice) Time Requested: 30 Minutes APL-2016-00236 New York County Clerk’s Index No. 604715/97 Court of Appeals STATE OF NEW YORK KEYSPAN GAS EAST CORPORATION, Plaintiff-Appellant, —against— MUNICH REINSURANCE AMERICA, INC., Defendant, —and— NORTHERN ASSURANCE COMPANY OF AMERICA And CENTURY INDEMNITY COMPANY, Defendants-Respondents. BRIEF FOR AMICUS CURIAE NEW YORK STATE ELECTRIC & GAS CORPORATION David L. Elkind LOWENSTEIN SANDLER LLP 2200 Pennsylvania Avenue, NW Suite 500 East Washington, DC 20037 Tel.: (202) 753-3800 Fax: (202) 753-3838 Attorneys for Proposed Amicus Curiae New York State Electric & Gas Corporation -i- CORPORATE DISCLOSURE STATEMENT Proposed amicus curiae New York State Electric & Gas Corporation (“NYSEG”) is a corporation organized under the laws of the State of New York. NYSEG is a wholly owned subsidiary of RGS Energy Group, Inc., an intermediate holding company owned by Iberdrola USA Networks, Inc. Iberdrola USA Networks, Inc. is a wholly owned subsidiary of AVANGRID, Inc., a publicly traded company on the New York Stock Exchange. AVANGRID, Inc. is an affiliate of Iberdrola S.A., a Spanish based company publicly traded on the Madrid Stock Exchange. -ii- TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... iii STATEMENT OF INTEREST .................................................................................. 1 PRELIMINARY STATEMENT ............................................................................... 3 ARGUMENT ............................................................................................................. 5 I. THE POLICIES PROMISED TO PAY ALL SUMS OF THE POLICYHOLDER’S LIABILITY, NOT A PRO RATA AMOUNT............. 5 II. IF THE COURT DECIDES TO CONTINUE AN ALLOCATION APPROACH, UNINSURED YEARS SHOULD BE SUBJECT TO AN AVAILABILITY TEST ......................................................................... 13 CONCLUSION ........................................................................................................ 15 -iii- TABLE OF AUTHORITIES Page(s) CASES Allstate Inc. Co. v. Dana Corp., 759 N.E.2d 1049 (Ind. 2001) ................................................................................ 8 American Nat. Fire Ins. Co. v. B & L Trucking and Const. Co., Inc., 134 Wash.2d 413 (1998) ..................................................................................... 12 Boston Gas Co. v. Century Indem. Co., 454 Mass. 337 (2009) ..................................................................................... 7, 11 Consolidated Edison Co. of New York, Inc. v. Allstate Ins. Co., 98 N.Y.2d 208 (2002) (Con Edison) ................................................................ 3, 9 Cragg v. Allstate Indem. Corp., 17 N.Y.3d 118 (2011) ........................................................................................... 5 Crossman Communities of North Carolina, Inc. v. Harleysville Mut. Ins. Co., 395 S.C. 40 (2011) ................................................................................................ 7 Dean v. Tower Ins. Co. of New York, 19 N.Y.3d 704 (2012) ........................................................................................... 9 EnergyNorth Natural Gas, Inc. v. Certain Underwriters at Lloyd’s, 156 N.H. 333 (2007) ............................................................................................. 7 Fieldston Prop. Owners Ass’n, Inc. v, Hermitage Ins. Co., Inc., 16 N.Y.3d 257 (2011) ......................................................................................... 10 Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512 (2002) ................................................................................. 6, 8 Hooper Assoc. v. AGS Computers, Inc., 74 N.Y.2d 487 (1989) ........................................................................................... 6 Keene Corp. v Ins. Co. of N. Am., 667 F.2d 1034 (D.C. Cir. 1981), cert denied 455 U.S. 1007, 102 S. Ct. 1644, 71 L.Ed.2d 875 (1982) .................................................................... 9, 11 -iv- New York State Electric & Gas Corp. v. Century Indemnity Co. & OneBeacon America Insurance Co., No. 5:13-0976 ................................................................................................... 1, 2 Northville Industries Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 89 N.Y.2d 621 (1997) ........................................................................................... 8 Plastics Engineering Co. v. Liberty Mut. Ins. Co., 315 Wis.2d 556 (2009) ................................................................................... 7, 13 Roman Catholic Diocese of Brooklyn v. National Union Fire Ins. Co. of Pittsburgh, Pa., 21 N.Y.3d 139 (2013) ........................................................................................... 3 Seaboard Sur. Co. v. Gillette Co., 64 N.Y.2d 304 (1984) ........................................................................................... 8 Selective Ins. Co. of Am. V. County of Rensselaer, 26 N.Y.3d 649 (2016) ........................................................................................... 9 State v. Continental Ins. Co., 55 Cal.4th 186 (2012) ....................................................................................... 6, 7 Stonewall Ins. Co. v Asbestos Claims Mgmt. Corp., 73 F.3d 1178 (2d Cir. 1995) ............................................................................... 13 In Re Viking Pump, Inc., 27 N.Y.3d 244 (2016) ..................................................................................... 3, 12 STATUTES McCarran-Ferguson Act, 15 U.S.C. Sec. 1011 ........................................................ 10 New York Environmental Conservation Law, §§ 1-0101 et seq. .............................. 1 STATEMENT OF INTEREST New York State Electric & Gas Corporation (“NYSEG”), a New York based company, provides utility services to approximately 881,000 electricity customers and 263,000 natural gas customers across more than 40% of upstate New York. NYSEG has a strong interest in this litigation, and therefore respectfully submits this brief as proposed amicus curiae. NYSEG has conducted, or will conduct, environmental investigations and cleanup activities at 22 former manufactured gas plant sites (“MGP”) throughout New York under the New York Environmental Conservation Law, §§ 1-0101 et seq., and orders and directives of the New York State Department of Environmental Conservation. NYSEG seeks insurance coverage for the costs of the investigation and cleanup under insurance policies it purchased, from 1951 to 1970, from predecessors of Century Indemnity Company and OneBeacon America Insurance Company.1 Those insurance policies require the insurers to indemnify NYSEG for “all sums” or “the sum” that NYSEG becomes legally obligated to pay as a result of property damage, as long as any part of the damage occurred during the policy period. The insurers refused to provide coverage for NYSEG’s MGP claim. Thus, NYSEG filed an insurance coverage action captioned New York State Electric & 1 Century Indemnity Company is a party to this appeal. -2- Gas Corp. v. Century Indemnity Co. & OneBeacon America Insurance Co., No. 5:13-0976 (TJM/ATB) (the “NYSEG Coverage Action”), in the United States District Court for the Northern District of New York. New York law applies to the NYSEG Coverage Action. Although the Court granted defendants’ motion and dismissed the action on March 31, 2017, NYSEG’s motion for reconsideration, filed April 13, 2017, remains pending, and the motion concerned only six exemplar sites out of the 22 in the action. Because NYSEG’s insurance policies contain language similar to that in the insurance policies that the Court will interpret in this appeal, the Court’s decision concerning how the policies’ coverage grant operates in the face of other policy language likely will have a direct impact on the outcome of the NYSEG Coverage Action. Accordingly, NYSEG respectfully requests permission to appear as amicus curiae to protect its strong interest in the outcome of this appeal. -3- PRELIMINARY STATEMENT This appeal requires the Court to consider yet again the effects of its decision in Consolidated Edison Co. of New York, Inc. v. Allstate Ins. Co., 98 N.Y.2d 208 (2002) (Con Edison), holding that when injury or damage spans multiple policy periods, damage must be allocated. This is the third time this Court has been called on to explain Con Edison, see In Re Viking Pump, Inc., 27 N.Y.3d 244 (2016), and Roman Catholic Diocese of Brooklyn v. National Union Fire Ins. Co. of Pittsburgh, Pa., 21 N.Y.3d 139 (2013), and it will not be the last. Future cases undoubtedly will require the Court to determine how deductibles factor into an allocation, how to treat settled policies, and other issues. These subsequent disputes arose because in Con Edison the court ignored its well-established precedents for interpreting insurance policies, and instead adopted what it called in Viking Pump a “legal fiction.” The fundamental flaw with this fiction is that it has re-written decades of insurance policies for which policyholders paid substantial premiums in a manner that has cost them incalculable sums. This has left plaintiffs with progressive harm such as asbestos injuries uncompensated, and forced the public to bear the cost of many environmental cleanups. The plain language of the policies mandates a different result. -4- If the Court nonetheless decides to perpetuate the legal fiction of allocation, it should follow the rulings of the Second Circuit and spread liability across the years when property damage occurred and insurance was purchased or available in the marketplace. As the Appellate Division below stated, Opinion at 4 n. 1, this Court recognized in Con Edison the existence of the issue of how an allocation applies to periods when insurance was unavailable, but declined to adopt a per se allocation rule to resolve it. If it considers the issue now, the Court should apply the availability test. “Available” should not mean that the insurance theoretically could have been purchased at any place, at any cost, regardless of whether it was perceived as needed. Instead, the test should consider whether the policyholder’s failure to purchase insurance was reasonable, considering the risks that it faced at the time and the costs of obtaining the insurance. -5- ARGUMENT I. THE POLICIES PROMISED TO PAY ALL SUMS OF THE POLICYHOLDER’S LIABILITY, NOT A PRO RATA AMOUNT A. Con Edison Ignored Well-Established Precedents Dictating How an Insurance Policy Must be Interpreted There are several basic principles of insurance policy construction that this Court long has recognized, but which Con Edison disregarded. These principles are supposed to be applied uniformly to all insurance policies. Application of any of these principles mandates that the all sums language2 be given its plain meaning. First, insurance policies “must be interpreted according to common speech and consistent with the reasonable expectations of the average insured.” Cragg v. Allstate Indem. Corp., 17 N.Y.3d 118, 122 (2011). The opening sentence of the policy, the first grant of coverage, promises to pay “all sums” of the policyholder’s liability. This is how the insurance policies were sold, to provide full protection to the policyholder for matters covered under the policy. There is no citation to a policy definition warning that if damage lasts more than one year, the policy will provide less coverage, and that the longer the injury, the less coverage the policy offers. An average insured reading the policy would expect that “all sums” means what it says. A reasonable insured would not read a policy that begins by 2 The Appellate Division below wrongly equated “all sums” with joint and several liability. Opinion at 9-10. Joint and several liability is a creature of tort. All sums is a creation of contract, drafted by the insurance companies. -6- promising to pay all sums of its liability as mandating an allocation of liability if damage exceeded one year, or that it would have to pay for years of damage when it was uninsured. Second, all provisions in an insurance policy must be read to give them effect and not to render them surplus. See Hooper Assoc. v. AGS Computers, Inc., 74 N.Y.2d 487, 493 (1989). The “during the policy period” language tells you what has to happen to implicate, or “trigger” the coverage: injury or damage happening during the policy period. The “all sums” decisions recognize this language, then hold that once a policy is triggered, the opening grant of coverage mandates that the policy pay all sums of the policyholder’s liability, up to the policy’s limits. See State v. Continental Ins. Co., 55 Cal.4th 186 (2012) (“State”); Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512 (2002). Contrary to the Appellate Division decision, at 17, the “all sums” language is not “qualified” by the “during the policy period” language. The two policy provisions are distinct and serve two separate purposes. The “during the policy period” language serves the important purpose of stating what has to happen during the policy period to trigger the coverage, but nothing in the policy indicates that it separately modifies and eliminates the opening grant of “all sums” coverage, which defines the scope of the triggered policy’s obligation to pay for the policyholder’s liability. See Plastics Engineering Co. v. Liberty Mut. Ins. Co., 315 -7- Wis.2d 556, 584 (2009) (“Plastics Engineering”). The distinction between the two concepts is highlighted by the different placement in the policy of the pertinent language. The “all sums” language is in the Insuring Agreement, which is the coverage grant, while the “during the policy period” language is in the policy definitions and thus is unrelated to the all sums promise. See State, 55 Cal.4th at 1007-08). This is the only policy interpretation which reads both policy provisions together, rather than removing and ignoring the opening grant of coverage promising to pay all sums of the policyholder’s liability. The allocation cases separately apply the “during the policy period” language to limit coverage to a pro rata amount. None of the allocation decisions discusses what “all sums” means, because they cannot explain it. Instead, they ignore it, rendering the opening grant of coverage for which the policyholder paid premiums superfluous. Boston Gas Co. v. Century Indem. Co., 454 Mass. 337 (2009) (“Boston Gas”); Crossman Communities of North Carolina, Inc. v. Harleysville Mut. Ins. Co., 395 S.C. 40 (2011); EnergyNorth Natural Gas, Inc. v. Certain Underwriters at Lloyd’s, 156 N.H. 333 (2007). These decisions all ignore the fact that the policies were sold based on the insurance companies’ express promise to pay all sums of the policyholder’s liability, and re-write the language in terms the policyholder would not have anticipated when it purchased insurance that expressly promised to make it whole. The all sums language means that the -8- policyholder reasonably “expected complete security from each policy that it purchased.” Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur. Co., 95 Ohio St.3d 512, 516 (2002). Once the policy is triggered by property damage caused by an occurrence, it must pay all sums of the policyholder’s liability, up to the policy limits. Allstate Inc. Co. v. Dana Corp., 759 N.E.2d 1049, 1058 (Ind. 2001). The allocation cases improperly remove the all sums language from the policy, despite its central role. That violates the principle that, in interpreting insurance policies, courts should give effect to each part. Northville Industries Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 89 N.Y.2d 621, 632-33 (1997). This principle is particularly appropriate when the relevant language is in the opening insuring agreement of the policy. Third, insurance companies have the burden of demonstrating that the policy language is “subject to no other reasonable interpretation.” See Seaboard Sur. Co. v. Gillette Co.,64 N.Y.2d 304, 311 (1984). In Con Edison, however, the Court lowered the burden on the insurance companies, holding that “Pro rata allocation under these facts, while not explicitly mandated by the policies, is consistent with the language of the policies.” 98 N.Y.2d at 224. That statement alone should have led the Court to hold that the insurance companies had not met their burden, and that an all sums result followed, but it did not. -9- Finally, NYSEG believes that the all sums language is clear, and that language with “a definite and precise meaning” should be given that meaning. See Selective Ins. Co. of Am. V. County of Rensselaer, 26 N.Y.3d 649, 655 (2016). Nonetheless, the fact that the state Supreme Courts of California, Washington, Ohio, Indiana, Pennsylvania, Illinois, Delaware and Wisconsin all agree with an all sums result, while several others disagree, demonstrates at the least that the language is ambiguous. The all sums issue has been a live dispute since 1981, when the seminal decision in Keene Corp. v Ins. Co. of N. Am., 667 F.2d 1034 (D.C. Cir. 1981), cert denied 455 U.S. 1007, 102 S. Ct. 1644, 71 L.Ed.2d 875 (1982) (“Keene”), was issued, applying coverage over many years on an all sums basis because of the insurance companies’ “promises of certainty” to the policyholder, id. at 1047. For decades since that decision, the insurance industry has used the same language without clarification, exacerbating the problem that they created, because courts have interpreted it so differently. If the language is ambiguous, it must be construed in the policyholder’s favor. Dean v. Tower Ins. Co. of New York, 19 N.Y.3d 704, 708-09 (2012). Despite their purported analysis of the policy language, the courts that have allocated coverage apparently do so for reasons other than the policy language. There is no other explanation for the fact that they uniformly ignore all sums, and effectively re-write the policy to eliminate it, harming the policyholder. The -10- question remains why they do so. There is only one plausible, although misguided reason: they are concerned that the insurance companies cannot fulfill their promises. That ignores another rule of insurance policy construction, that a court should not deviate from a policy’s plain meaning to achieve “rough justice.” See, e.g., Fieldston Prop. Owners Ass’n, Inc. v, Hermitage Ins. Co., Inc., 16 N.Y.3d 257, 264 (2011). More importantly it shows a misunderstanding of how the policies were drafted to operate. Insurance companies draft policy language collusively, taking advantage of their exemption from the antitrust laws under the McCarran-Ferguson Act, 15 U.S.C. Sec. 1011. The insurer that makes the policyholder whole in the first instance, however, knows that it will not be exposed to the full liability, if any. In addition to the policy limits, deductibles and exclusions, it has other overarching benefits that limit its liability. First, it has contribution rights from every other insurance company whose policy is triggered by the same claim, and potentially subrogation rights from third parties. Once it has reduced its liability by exercising these rights, it then has reinsurance to reimburse it for its payment to its policyholder. At the end, the payment for the claim does not come from the insurance company, but potentially from many reinsurers. This is how the policies long were designed to operate, with a spreading of the risk. The insurance companies do not need the courts to protect them. They already have sufficient -11- protections, which is why the all sums language was used for so many decades after the Keene decision. The consequences to the policyholder of a pro rata fiction, however, are Draconian, and often fatal. This is true even if the allocation is only to all insured years, because the policyholder often has to pay substantial deductibles or self- insured retentions in years with insurance, or has insolvent coverage.3 As regulated public utilities, KeySpan and its predecessors, and NYSEG, have their rate payers pay for the cost of cleanup of manufactured gas plant sites, subject to the requirement that each company try to obtain insurance coverage for those costs, with any recoveries benefitting the rate payers. Thus, the adoption of a pro rata fiction hurts their rate payers. For most companies, the adoption of a pro rata result may be fatal to their solvency. Undoubtedly, many companies that otherwise would compensate injured asbestos plaintiffs or clean up environmental sites are now bankrupt. This means that injured plaintiffs often are 3 Some courts have cited to the benefits of having the insurance companies’ contribution rights determined in the same action as the policyholder’s rights to coverage. See Boston Gas, 454 Mass. At 364-65. This efficiency argument ignores the harm it would cause policyholders. First, a policyholder with mass tort claims or environmental liabilities cannot wait for the insurance companies’ contribution rights to be sorted out before it gets the insurance that it purchased to protect itself. Second, by forcing a policyholder in a contribution action to pay for retentions and deductibles in multiple years, or insolvent shares, or for years in which it had no insurance, the policyholder will incur substantial expenses that it was told would not occur when the insurance company promised to pay all sums of its liability. -12- uncompensated, and the public must pay for many environmental cleanups. None of this would occur if the plain language of the insurance policies was interpreted the way the insurance companies drafted it. There is no reason to invoke a pro rata “legal fiction” when the fact is that the parties expressly contracted that the policy would pay all sums of the policyholder’s liability.4 The policies do not require a fiction. The insurance companies agreed to pay all sums of the policyholder’s liability for injury or damage caused by an occurrence. Id. at 251-52. If the policy is triggered by property damage happening during the policy period, it pays all sums of the policyholder’s liability from the same occurrence, regardless of whether the damage is indivisible or not.5 Moreover, the inclusion in the definition of “occurrence” of the phrase “continuous or repeated exposure to conditions,” KeySpan Gas East opening brief at 7, supports an all sums result. See American 4 In Viking Pump, this Court stated that the fiction of pro rata allocation was “designed to treat continuous and indivisible injuries as distinct in each policy period.” 27 N.Y.3d 244 at 261. 5 KeySpan states that the damage was indivisible. But the damage was not equal each year at the site. Contamination from coal tar at a manufactured gas plant was directly proportional to the amount of gas produced. As more gas was produced at gas plants over time, more coal tar entered the environment. Moreover, the contamination was cumulative because coal tar did not dissipate in the environment. Thus, the amount of contamination at a gas plant peaked at the end of the plant’s operations and stayed at that level until the plant was remediated. Even after the tar stopped migrating, groundwater would continue to become contaminated until remediation. -13- Nat. Fire Ins. Co. v. B & L Trucking and Const. Co., Inc., 134 Wash.2d 413, 427 (1998); Plastics Engineering, 315 Wis.2d at 584.6 II. IF THE COURT DECIDES TO CONTINUE AN ALLOCATION APPROACH, UNINSURED YEARS SHOULD BE SUBJECT TO AN AVAILABILITY TEST If the Court nonetheless decides to follow Con Edison, it should explain what all sums means, and reverse the Appellate Division decision. NYSEG agrees with and adopts the points made by Plaintiff-Appellant KeySpan Gas East Corporation in its opening brief at 18-44, and reply brief at 2-21, but makes the following additional points. This Court recognized the issue of the treatment of uninsured periods in the Con Edison decision, but purposefully decided not to address it. Implicit in the Court’s decision was the recognition that equitable considerations should have a role in the ultimate allocation decision, and that individual courts that consider the issue should have some discretion to address specific facts in the cases before them. Such considerations clearly motivated the Second Circuit in the decision in Stonewall Ins. Co. v Asbestos Claims Mgmt. Corp., 73 F.3d 1178, 1204 (2d Cir. 1995). Indeed, the reason why there is 6 One of the insurance companies’ favorite arguments against an all sums result is that it would give the same amount of coverage to a policyholder who buys only one year of coverage as one who buys decades of coverage. There are two responses to this. First, the insurance company that sells the policy presumably knows the policyholder’s business and historic insurance coverage, and acts accordingly, including by setting the premium. Second, insurance companies have never identified any policyholder who purchased just one year of insurance. It is a hypothetical creation with no basis. -14- unavailability in recent years for environmental claims is because the insurance industry together decided not to insure pollution risks, eliminating a policyholder’s ability to purchase insurance to protect itself. When it comes to a choice of policy language, the insurance company and the policyholder are not on equal footing. The fact that every allocation case considers essentially the same policy language demonstrates that the insurance industry collectively decided to use this policy language without negotiation. The common policy language was drafted by the insurance industry and used uniformly in liability insurance policies. As a result, any doubt as to the meaning of the policy language should be resolved in favor of the policyholder, which paid valuable premiums to purchase insurance policies with language it never negotiated, but which some courts, including the Appellate Division below, have construed contrary to their plain language, causing incalculable harm to policyholders. Since the insurance industry collectively decided not to insure pollution risks in recent years, policyholders should not be charged with liability for those years, when the insurers prevented them from being able to buy insurance to protect themselves. The relevant question should be how to handle situations in which injury or damage predated the policyholder’s purchase of insurance. NYSEG submits that the policyholder should be deemed responsible for years in which it -15- failed to purchase available insurance. The concept of “availability,” however, should not just mean that at a price insurance could have been purchased somewhere. The concept of reasonableness also should apply. If the Court is going to sanction an approach that second-guesses the policyholder’s decision not to purchase insurance for property damage claims perhaps a century ago, a policyholder with no prior third-party property damage claims should not be held liable for the failure to purchase coverage for property damage claims any more than a homeowner should be held accountable for the failure to purchase flood insurance before perceiving a risk. Similarly, the ability to purchase $1,000 of insurance in 1920 should not be compared as equivalent to $500,000 of insurance in 1963, and the cost and ability to purchase such insurance should be considered. CONCLUSION For the foregoing reasons, NYSEG respectfully requests that the Court return to its well-established principles of insurance policy interpretation and adopt the “all sums” approach for claims involving multiple policy years under general liability insurance policies. Alternatively, if the Court decides to maintain an allocation result, it should not hold the policyholder responsible for years of damage in which insurance coverage was unavailable. Respectfully submitted, wÿ./Cc/c/CilDated: December 28, 2017 David L. EWdhd 'T LOWENSTEIN SANDLER LLJ 2200 Pennsylvania Avenue, NW Suite 500 East Washington, DC 20037 Phone: 202-753-3800 delkind@lowenstein.com Attorneys for Amicus Curiae New York State Electric & Gas Corporation -16- COURT OF APPEALS OF THE STATE OF NEW YORK KEYSPAN GAS EAST CORPORATION APL-2016-00236 PIaintiff-Appellant, New York County Clerk’s Index No. 604715/97 -vs- CERTIFICATION REGARDING WORD COUNT MUNICH REINSURANCE AMERICA, INC. and NORTHERN ASSURANCE COMPANY OF AMERICA, Defendants, and CENTURY INDEMNITY COMPANY, Defendant-Respondent. CERTIFICATION I certify pursuant to 22 N.Y.C.R.R. §§ 500.23(a)(2) and 500.1l(m) that the total word count for all printed text in the body of New York State Electric & Gas Corporation’s proposed brief for amicus curiae, exclusive of the corporate disclosure statement, the table of contents, and the table of cases and authorities is 3,541 words. Respectfully submitted, Dated: January 2, 2018 i CC*'* 7David L. EMhd LOWENSTEIN SANDLER LLÿ 2200 Pennsylvania Avenue, NTW Suite 500 East Washington, DC 20037 Phone: 202-753-3800 delkind@lowenstein.com Attorneys for Amicus Curiae New York State Electric & Gas Corporation