LMrs rktl E BROWN PARALEGALS Dosaw P CHL\RI KnuneC RASPlREK Mto An C SCINTA ATlERM KilNc CHIARI,

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1 .. LMrs rktl E BROWN PARALEGALS Dosaw P CHL\RI KnuneC RASPlREK Mto An C SCINTA ATlERM KilNc BROWN HR DnY D MARIH ATTORNEYS ANmOS r r) Gunuso CHIARI, MMnE A BRAUN THE INJURY LAW CENTER LLP N A Ct IIk) I A Rr'IIIRSOR' S I \N NicOn TC MARQUFS OANNIYANNUILO ERIcM SHELFON 2470 Walden Avenue MARYst.izAseiHM ERENhT01 1,L PN ANWAN CONTRTI Buffalo, New York RAcun A RANKIE I IMOTHYM HLIllSON r)n )OEl.GOR r)tr Kl COL1ucNP FAf[FY Tet KAm YNNA MILLER BRIANli Hoc.AN FAX * 716,681,8] AMaua l YJ BuRRIS MICE[AELC LANCIR.. RAcmM VO1CT EL.EANORBLISS FERRY BrownChiari.com DAN ELl.EH HART for serviceof process Rl kt( c \ )It(.r, June 22, 2018 Honorable Eileen Bransten, J.S.C. Supreme Court, NY County 60 Centre Street - Room 521 New York, NY RE: MVP Delivery and Logistics, Inc. v. American International Group, et al. Index #650882/2016 Dear Justice Bransten: Please allow this correspondence to serve as plaintiff, MVP Delivery & Logistics, Inc. ("MVP")'s response to the Court's request for a status update pertaining to this matter. As the Court is aware, in this action, MVP sued American International Group, Property.' AIG Property and Casualty, Inc., AIG Domestic Claims, Inc., AIG Claims, Inc. National Union" Union Fire & Insurance Company of Pittsburgh, PA (collectively "National Union"); American Alternative Insurance Company ("AAIC"); and DHL Worldwide Express, Inc., DHL Express, Inc., DHL Holdings (USA), Inc. (collectively "DHL"). By way of background, the estate of Claudia Carlson filed a wrongful death action against MVP, MVP employee William Porter and DHL following a motor vehicle accident involving Claudia Carlson and Mr. Porter which occurred on July 7, 2004 in Niagara County. That action was tried to a jury verdict in 2006 in Niagara County. Following post-trial motions and appeals in the wrongful death action, the Carlson family was awarded a judgment against MVP and Porter in the amount of $7.3 million. Following the judgment, the Carlson family sought to determine the available insurance coverage for the vehicle, which was being operated by MVP, a contractor for DHL. (During the wrongful death trial, the insurance policies issued by National Union and AAIC, which are the subject of this action, were not disclosed). Rochester* 75 South Clinton Avenue, Suite 510 Rochester, New York ( * satellite offices-not for mail or service of process 1

2 MVP commenced this lawsuit on February 19, 2016 ("the MVP action"). Prior to the commencement of the MVP action, on January 25, 2011, the estate of Claudia Carlson, as assignee of Porter, commenced an action in Niagara County seeking a determination that the National Union and AAIC policies were applicable to the judgment of the wrongful death action ("the Carlson action"). In the Carlson action, the defendants moved to dismiss pursuant to CPLR Justice Boniello denied the motions to dismiss relative to the insurance coverage question and allowed discovery to go forward. National Union and AAIC appealed Justice Boniello's decision and the Fourth Department reversed, dismissing the Carlson action in its entirety. The Carlson family then sought leave from the Court of Appeals. The Court of Appeals took the case and overturned the Fourth Department, remanding the Carlson action back to Justice Boniello, opining that there are numerous questions of fact that must be resolved. The Carlson action remains in discovery before Justice Boniello. Specifically, following in camera review, Justice Boniello ordered National Union to disclose its claims files to Carlson. National Union sought a stay of the Order from the Fourth Department, however, that application was denied. Despite that decision, National Union has continued to refuse to comply with the Court's Order. Carlson submitted a motion to Justice Boniello to hold National Union in contempt for its failure to comply with the Court's Order. On December 16, 2015, while the Carlson claim against National Union for a coverage determination was pending, National Union filed a declaratory judgment action against MVP in Erie County, seeking a determination as to whether its policies apply to (" the underlying wrongful death action ("National Union action"). The National Union action was stayed pending the decision by the Court of Appeals, as mentioned above. The central question in all three pending actions is whether the vehicle being driven by auto" Mr. Porter at the time of the accident was a "hired under the subject insurance policies. t Getting back to the MVP action, in April 2016, defendants respectively moved to dismiss the MVP action, pursuant to CPLR This Court did not decide the motions but ordered that the MVP action be stayed pending the Court of Appeals decision in the Carlson action. In November 2017, the Court of Appeals issued its decision, as mentioned above. The essence of the Court of Appeal's decision is that there exist several questions of fact relative to the coverage issues surrounding the National Union and AAIC insurance policies. Since that time, my firm, which also represents the Carlson family in the Carlson action was substituted as counsel for MVP in this action. We subsequently moved Justice Boniello to consolidate all three actions in Niagara County. Justice Boniello recently issued a decision consolidating the Erie County action brought by National Union in the Carlson Action. He ordered consolidation of this case with the other defendants' pending cases, after Your Honor's decision pertaining to the pending motions. (A copy of Justice Boniello's decision and Order is enclosed for the Court's

3 reference). Therefore, currently both the Carlson action and the National Union action are before Justice Boniello in Niagara County. Further, the parties involved in all three related actions attended one mediation session on June 1, The parties were unable to reach an agreement during mediation. MVP now requests that Your Honor decide the pending defense motions, by denying the motions in their entirety (either with or without prejudice), so that this case may now be consolidated with the other two related actions pending in Niagara County before Justice Boniello. Should Your Honor wish to further consider how the Court of Appeals decision defendants' would impact the motions, we request the opportunity to submit further briefing on that issue and further argument prior to the Court's decision. Respectfully yours, BROWN CHIARI LLP Angelo S. Gambino ASG/slw Enc. cc: Kevin D. Szczepanski, Esq. Patrick J. Lawless, Esq. Paul Kovner, Esq.

4 FILED: NIAGARL COUNTY CLERK 06/15/ :0B INDEX NO. E14303 /2011 AM) NYSCEF DOC. NO. 300 RECEIVED NYSCEF: 06/1!/2018 STATE OF NEW YORK SUPREME COURT : COUNTY OF NEW YORK MVP DELIVERY AND LOGISTICS, INC. Plaintiff, vs. Index No /2016 AMERICAN INTERNATIONAL GROUP, INC., AIG PROPERTY CASUALTY, INC., AIG DOMESTIC CLAIMS, INC., AIG CLAIMS, INC., NATIONALUNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, AMERICAN ALTERNATIVE INSURANCE CO., DHL HOLDINGS(USA), INC., DHL WORLDWIDE EXPRESS, INC., DHL EXPRESS, INC., and AIRBORNE, INC. Defendants. James E. Brown, Esq. Angelo S. Gambino, Esq. Timothy Hudson, Esq. Browri Chiari, LLP Attorrieys for Plaintiff 2470 Walden Avenue Buffalb, New York Kevin D. Szczepanski, Esq. Barclay Damon, LLP Attorneys for Defendant National Union Fire Insurance Company of Pittsburgh, PA 200 Delaware Avenue, Suite 1200 Buffalo, New York Paul Rovner, Esq. Rubin, Fiorella & Friedman LLP Attorneys for Defendant American Alternative Insurance Company 630 Third Avenue New Ýork, New York of 4

5 FILED: NIAGARL COUNTY CLERK 06/13/ :05 AM INDEX NO. E143033/2011 NYSCEF DOC. NO. 300 RECEIVED NYSCEF: 06/15/2018 Boniello, III, J. DECISION 4 ORDER By Notice of Motion, Plaintiff Michael J. Carlson, Sr., Individually and as Administrator of the Estate of Claudia D'Agostino Carlson, and as Assignee of William Porter, seeks an Order joining the instant action with the following actions: National Union Fire Insurance Company of Pittsburgh, PA. v. MVP Delivery and Logistics, Inc., under Index Number /2015, New York Supreme Court, County of Erie and MVP Delivery and Logistics, Inc. v. American International Group, Inc., AIG Property Casualty, Inc., AIG Domestic Claims, Inc., AIG Claims, Inc., National Union Fire Insurance Company ofpittsburgh, PA, American Alternative Insurance Co., ahd DHL Holdings (USA), Inc., DHL Worldwide Express, Inc., DHL Express, Inc., and Airborne, Inc., under Index Number /2016, New York Supreme Court, County of New York for purposes of discovery and trial, in the County of Niagara.. It is well settled that where common questions of law or fact exist, consolidation of actions should be granted unless the party opposing consolidation establishes prejudice to a substantial right (CPLR 602 [a]; Smith v Smith, 261 AD2d 928 [4th Dept 1999 umzston 9 Grose, 144 AD2d 907 [4* one' [4 Dept 1988]). The law is clear that the "mere desire to have one's dispute heard separately does not, by itself, constitute a 'substantial right,' nor are bare allegations of prejudice sufficient to defeat a motion for consolidation" (Humiston v Grose, supra). Here, these actions arise out of the denial of insurance coverage in connection with a judgment rendered against MVP Delivery and Logistics, Inc., and its former employee, William Porter, in a wrongful death/personal injury action entitled Carlson v. Porter, et al., under Index Number / of

6 FILED: NIAGARA COUNTY CLERK 06/15/ :05 INDEX NO. AM E143033/2011 NYSCEF DOC. NO. 300 RECEIVED NYSCEF: 06/15/2018 The Court finds that there are common questions of law and fact with respect to the above referenced actions and further concludes that the Defendants have failed to establish the requisite prejudice to a substantial right (see generally, Vigo S.S. Corp, v Marship Corp. of Monrovia, 26 NY2d 157 [1970]). Accordingly, the Plaintiff's Motion to Consolidate is granted once the pending motions to dismiss in the New York County action which have been filed, briefed, argued and reserved on by the Hon. Eileen Bransten, J.S.C., have been adjudicated to avoid unnecessary costs and further' furthef delay. ' The signing of this Decision and Order shall not constitute notice of entry under CPLR Counsel is not relieved from the applicable provisions of this rule with regard to service of notice of entry. ' This Decision shall constitute the Order of this Court and shall be filed as such. / C'. LPH A. BONIELLO, III Supreme Court Justice Dated Dated: June 15, 2018 Niagara Falls, New York 2 4 of 4