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FILED: NEW YORK COUNTY CLERK 10/28/2022 05:53 PM INDEX NO. 652321/2020
NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 10/28/2022
EXHIBIT 33
FILED: NEW YORK COUNTY CLERK 10/28/2022 05:53 PM INDEX NO. 652321/2020
NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 10/28/2022
FORAN GLENNON
January 10, 2020
Via Email
Mr. Gregory D. Podolak, Esq.
Saxe Doernberger & Vita, P.C.
35 Nutmeg Drive, Suite 140
Trumbull, CT 06611
gdp@sdvlaw.com
Re: Insured: E.E. Cruz & Company, Inc.
Loss Location: NYSDOT Bridge Project
Saw Mill River Pkwy Site
BIN 719 Bridge; Pier 2; Shaft 2
Route 987D over the Saw Mill River
Greensburgh, New York
Type of Loss: Caisson & Concrete Failed at Bridge Project
Date of Loss: Approx. November 16, 2018
Policy No.: SLSTCON11432617
Claim No.: CON 546
Sedgwick Claim No.: SRT-0515
Dear Mr. Podolak:
As you know, Starr Surplus Lines Insurance Company ("Starr") insures E.E. Cruz &
Com.pany, Inc. ("E.E. Cruz") under the above-referenced policy (the "Policy"). We were retained
by Starr to provide legal advice in connection with this claim. We write in response to your letter
dated December 18, 2019. Preliminarily, we reiterate that Starr's November 18, 2019 letteris nfo_t
a denial letter. Rather, as stated therein, the intent of the November 18, 2019 letter was to: (1)
supplement Starr's June 28, 2019 Reservation of Rights letter; (2) advise E.E. Cruz of Starr's
preliminary position pertaining to coverage; (3) ascertain whether E.E. Cruz agrees or disagrees
with Starr's position; and (4) request any documents or information from E.E. Cruz relevant to
Starr's position. As you correctly noted, Starr continues to adjust this claim in good faith. Thus,
this letter is likewise noo_t a denial letter. Rather, we take this opportunity to:(1) supplement Starr's
June 28, 2019 Reservation of Rights letter and Starr's November 18, 2019 letter; (2) respond to
E.E. Cruz's position as set forth in your December 18, 2019 letter; (3) ascertain whether E.E. Cruz
agrees or disagrees with Starr's position; and (4) request any documents or information from E.E.
Cruz relevant to Starr's position.
In brief, Starr's position remains unchanged. We understand that a caisson located at BIN
integrity,"
719 Bridge, Pier 2, Shaft 2 (the "Caisson") lacked "structural requiring itsredesign and
reconstruction (the "Loss"). See November 15, 2019 Letter from Kadir Ozbek of E.E. Cruz to
F O RA NG L EN N O NPA L A N D·E C H
PO N Z I &R U D·L O F F P C
Charles J. Rocco, Attorney at Law 212.257-7101 crocco@fgppr.com
40 Wall Street 54* New New York 10005 tel 212.257.7100 www.fgppr.com
, Floor, York,
Chicago " Newport Beach " San Francisco" New York " London " Denver " LasVegas " Phoenix
CONFIDENTIAL INFORMATION STARR01796
FILED: NEW YORK COUNTY CLERK 10/28/2022 05:53 PM INDEX NO. 652321/2020
NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 10/28/2022
Mr. Gregory D. Podolak, Esq.
January 10, 2020
Page 2 of 3
Good"
Keith Culley of Sedgwick, at p. 2. Starr remains convinced that the "Cost of Making
Caisson"
exclusion and/or the "Piling, Sheet Piling & endorsement apply to preclude coverage for
the Loss. In support of its position, Starr has provided E.E. Cruz with the Envista report. We take
this opportunity to explain Starr's position in greater detail.
I. The Loss Resulted From "Fault, Defect, Error, Deficiency or Omission in Design,
Specification"
Plan or
As set forth in Starr's November 18, 2019 letter, itis Starr's position that the Policy's "Cost
Good"
of Making exclusion applies to exclude coverage for the Loss. Specifically, the Policy
specification."
excludes "[f]ault, defect, error, deficiency or omission in design, plan or Policy §
III.2.B.2. We understand that E.E. Cruz determined the design, plan, and specification of the
Caisson, including itslocation. We further understand that the Loss was caused by "water flowing
bedrock."
through the natural jointing in the See November 15, 2019 Letter from Kadir Ozbek of
E.E. Cruz to Keith Culley of Sedgwick, at p. 2. As such, the Loss was caused by "fault, defect,
specification"
error, deficiency or omission in design, plan or of the Caisson. Accordingly, it
remains Starr's position th.atthe Policy excludes coverage for the Loss. Further, the existence of
specification"
this "fault, defect, error, deficiency or omission in design, plan or does not constitute
loss or damage under the Policy. See Policy § III.2.B. As such, it remains Starr's position that
E.E. Cruz has shown no covered physical loss or damage.
"Caisson"
II. The Caisson is a
Finally, as set forth in Starr's November 18, 2019 letter, itis Starr's position that the
Policy's Piling, Sheet Piling & Caisson Endorsement applies to preclude coverage for the Loss.
In your December 18, 2019 letter,you argued that same is inapplicable because the Caisson is not
"caisson." shaft."
a Instead, you chose to call the Caisson a "drilled This semantical argument is
belied by the documents provided by E.E. Cruz. Prior to involving counsel, E.E. Cruz regularly
"caisson"
referred to the Caisson as a in drilling logs and other project documents. For example,
when E.E. Cruz initially notified Starr of the Loss, it reported: "Caisson and concrete failed at
unusable." "caisson"
bridge project resulting in caisson and concrete Accordingly, the Caisson is a
within the meaning of the Policy's Piling, Sheet Piling & Caisson Endorsement. As such, that
endorsement applies to preclude coverage for the Claim.
III. Conclusion
We trust that this information sufficiently explains Starr's position regarding E.E. Cruz's
claim. Starr looks forward to meeting with E.E. Cruz to review these coverage issues. In the
meantime, please state whether you agree or disagree with Starr's position as set forth in this
letter. If you disagree, please explain why and state your position. If you have any further
documentation or information you would like Starr to consider, please forward it to Starr's
attention. Once you've had a chance to review this letter, please call us to schedule a meeting
at a mutually convenient time and place. We request a response to this letter prior to the
meeting.
CONFIDENTIAL INFORMATION STARR01797
FILED: NEW YORK COUNTY CLERK 10/28/2022 05:53 PM INDEX NO. 652321/2020
NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 10/28/2022
Mr. Gregory D. Podolak, Esq.
January 10, 2020
Page 3 of 3
Starr reserves all rights regarding the application of the above-referenced provisions under
the terms and conditions of the Policy. Additionally, other Policy provisions may be found to be
applicable after further investigation or analysis, and no waiver of any Policy provisions,
conditions, limitations, or exclusions is intended or implied by our citation to the above provisions.
Thus, reference to the above-cited Policy provisions is not intended to be an all-inclusive recitation
of defenses that may apply. Nor is reference to those Policy provisions a declaration of Starr's
intent to decline coverage on thisbasis. Rather, Starr, having made no determination on coverage
at this stage, is merely utilizing this opportunity to advise E.E. Cruz of potentially applicable Policy
provisions in a complete reservation of rights.
Starr expressly reserves its rights under the Policy and at law and will continue its
investigation and defense under a reservation of all of its rights. Neither this letter nor any other
communications or investigation are intended to be, nor shall they be deemed as, a waiver or
estoppel to assert any rights Starr may have. Additional investigation may provide other
information bearing on questions of coverage, and Starr may choose to rely on such other
information as additional grounds to accept or deny coverage. Finally, certain portions of your
December 18, 2019 letter do not warrant a response at this time. Starr reserves its rights to
supplement this response and respond to those portions at a later time.
If you have any questions, please do not hesitate to contact the undersigned.
Very truly yours,
Foran Glennon Palandech Ponzi & Rudloff P.C.
By:
Ch.arles J. R.occo, Esq.
Cc: Via Email
Mr. Joe Sheehan
Mr. Kadir Ozbek
E.E. Cruz & Company, Inc.
13th
32 Avenue of the Americas, PlOOr
New York, NY 10013
J Sheehan@eecruz.com
KOzbek@eecruz.com;
Mr. Rodney Herald AIC, CIC
McGriff, Seibels & Williams, Inc.
7th
2211 Avenue South
Birmingham, AL 35233
RHerald@McGriff.com
CONFIDENTIAL INFORMATION STARR01798
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FILED: NEW YORK COUNTY CLERK 10/28/2022 05:53 PM INDEX NO. 652321/2020 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 10/28/2022 EXHIBIT 33 FILED: NEW YORK COUNTY CLERK 10/28/2022 05:53 PM INDEX NO. 652321/2020 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 10/28/2022 FORAN GLENNON January 10, 2020 Via Email Mr. Gregory D. Podolak, Esq. Saxe Doernberger & Vita, P.C. 35 Nutmeg Drive, Suite 140 Trumbull, CT 06611 gdp@sdvlaw.com Re: Insured: E.E. Cruz & Company, Inc. Loss Location: NYSDOT Bridge Project Saw Mill River Pkwy Site BIN 719 Bridge; Pier 2; Shaft 2 Route 987D over the Saw Mill River Greensburgh, New York Type of Loss: Caisson & Concrete Failed at Bridge Project Date of Loss: Approx. November 16, 2018 Policy No.: SLSTCON11432617 Claim No.: CON 546 Sedgwick Claim No.: SRT-0515 Dear Mr. Podolak: As you know, Starr Surplus Lines Insurance Company ("Starr") insures E.E. Cruz & Com.pany, Inc. ("E.E. Cruz") under the above-referenced policy (the "Policy"). We were retained by Starr to provide legal advice in connection with this claim. We write in response to your letter dated December 18, 2019. Preliminarily, we reiterate that Starr's November 18, 2019 letteris nfo_t a denial letter. Rather, as stated therein, the intent of the November 18, 2019 letter was to: (1) supplement Starr's June 28, 2019 Reservation of Rights letter; (2) advise E.E. Cruz of Starr's preliminary position pertaining to coverage; (3) ascertain whether E.E. Cruz agrees or disagrees with Starr's position; and (4) request any documents or information from E.E. Cruz relevant to Starr's position. As you correctly noted, Starr continues to adjust this claim in good faith. Thus, this letter is likewise noo_t a denial letter. Rather, we take this opportunity to:(1) supplement Starr's June 28, 2019 Reservation of Rights letter and Starr's November 18, 2019 letter; (2) respond to E.E. Cruz's position as set forth in your December 18, 2019 letter; (3) ascertain whether E.E. Cruz agrees or disagrees with Starr's position; and (4) request any documents or information from E.E. Cruz relevant to Starr's position. In brief, Starr's position remains unchanged. We understand that a caisson located at BIN integrity," 719 Bridge, Pier 2, Shaft 2 (the "Caisson") lacked "structural requiring itsredesign and reconstruction (the "Loss"). See November 15, 2019 Letter from Kadir Ozbek of E.E. Cruz to F O RA NG L EN N O NPA L A N D·E C H PO N Z I &R U D·L O F F P C Charles J. Rocco, Attorney at Law 212.257-7101 crocco@fgppr.com 40 Wall Street 54* New New York 10005 tel 212.257.7100 www.fgppr.com , Floor, York, Chicago " Newport Beach " San Francisco" New York " London " Denver " LasVegas " Phoenix CONFIDENTIAL INFORMATION STARR01796 FILED: NEW YORK COUNTY CLERK 10/28/2022 05:53 PM INDEX NO. 652321/2020 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 10/28/2022 Mr. Gregory D. Podolak, Esq. January 10, 2020 Page 2 of 3 Good" Keith Culley of Sedgwick, at p. 2. Starr remains convinced that the "Cost of Making Caisson" exclusion and/or the "Piling, Sheet Piling & endorsement apply to preclude coverage for the Loss. In support of its position, Starr has provided E.E. Cruz with the Envista report. We take this opportunity to explain Starr's position in greater detail. I. The Loss Resulted From "Fault, Defect, Error, Deficiency or Omission in Design, Specification" Plan or As set forth in Starr's November 18, 2019 letter, itis Starr's position that the Policy's "Cost Good" of Making exclusion applies to exclude coverage for the Loss. Specifically, the Policy specification." excludes "[f]ault, defect, error, deficiency or omission in design, plan or Policy § III.2.B.2. We understand that E.E. Cruz determined the design, plan, and specification of the Caisson, including itslocation. We further understand that the Loss was caused by "water flowing bedrock." through the natural jointing in the See November 15, 2019 Letter from Kadir Ozbek of E.E. Cruz to Keith Culley of Sedgwick, at p. 2. As such, the Loss was caused by "fault, defect, specification" error, deficiency or omission in design, plan or of the Caisson. Accordingly, it remains Starr's position th.atthe Policy excludes coverage for the Loss. Further, the existence of specification" this "fault, defect, error, deficiency or omission in design, plan or does not constitute loss or damage under the Policy. See Policy § III.2.B. As such, it remains Starr's position that E.E. Cruz has shown no covered physical loss or damage. "Caisson" II. The Caisson is a Finally, as set forth in Starr's November 18, 2019 letter, itis Starr's position that the Policy's Piling, Sheet Piling & Caisson Endorsement applies to preclude coverage for the Loss. In your December 18, 2019 letter,you argued that same is inapplicable because the Caisson is not "caisson." shaft." a Instead, you chose to call the Caisson a "drilled This semantical argument is belied by the documents provided by E.E. Cruz. Prior to involving counsel, E.E. Cruz regularly "caisson" referred to the Caisson as a in drilling logs and other project documents. For example, when E.E. Cruz initially notified Starr of the Loss, it reported: "Caisson and concrete failed at unusable." "caisson" bridge project resulting in caisson and concrete Accordingly, the Caisson is a within the meaning of the Policy's Piling, Sheet Piling & Caisson Endorsement. As such, that endorsement applies to preclude coverage for the Claim. III. Conclusion We trust that this information sufficiently explains Starr's position regarding E.E. Cruz's claim. Starr looks forward to meeting with E.E. Cruz to review these coverage issues. In the meantime, please state whether you agree or disagree with Starr's position as set forth in this letter. If you disagree, please explain why and state your position. If you have any further documentation or information you would like Starr to consider, please forward it to Starr's attention. Once you've had a chance to review this letter, please call us to schedule a meeting at a mutually convenient time and place. We request a response to this letter prior to the meeting. CONFIDENTIAL INFORMATION STARR01797 FILED: NEW YORK COUNTY CLERK 10/28/2022 05:53 PM INDEX NO. 652321/2020 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 10/28/2022 Mr. Gregory D. Podolak, Esq. January 10, 2020 Page 3 of 3 Starr reserves all rights regarding the application of the above-referenced provisions under the terms and conditions of the Policy. Additionally, other Policy provisions may be found to be applicable after further investigation or analysis, and no waiver of any Policy provisions, conditions, limitations, or exclusions is intended or implied by our citation to the above provisions. Thus, reference to the above-cited Policy provisions is not intended to be an all-inclusive recitation of defenses that may apply. Nor is reference to those Policy provisions a declaration of Starr's intent to decline coverage on thisbasis. Rather, Starr, having made no determination on coverage at this stage, is merely utilizing this opportunity to advise E.E. Cruz of potentially applicable Policy provisions in a complete reservation of rights. Starr expressly reserves its rights under the Policy and at law and will continue its investigation and defense under a reservation of all of its rights. Neither this letter nor any other communications or investigation are intended to be, nor shall they be deemed as, a waiver or estoppel to assert any rights Starr may have. Additional investigation may provide other information bearing on questions of coverage, and Starr may choose to rely on such other information as additional grounds to accept or deny coverage. Finally, certain portions of your December 18, 2019 letter do not warrant a response at this time. Starr reserves its rights to supplement this response and respond to those portions at a later time. If you have any questions, please do not hesitate to contact the undersigned. Very truly yours, Foran Glennon Palandech Ponzi & Rudloff P.C. By: Ch.arles J. R.occo, Esq. Cc: Via Email Mr. Joe Sheehan Mr. Kadir Ozbek E.E. Cruz & Company, Inc. 13th 32 Avenue of the Americas, PlOOr New York, NY 10013 J Sheehan@eecruz.com KOzbek@eecruz.com; Mr. Rodney Herald AIC, CIC McGriff, Seibels & Williams, Inc. 7th 2211 Avenue South Birmingham, AL 35233 RHerald@McGriff.com CONFIDENTIAL INFORMATION STARR01798