Full opinion text
OPINION AND ORDER MUKASEY, District Judge. Before the court are two sets of motions and cross-motions for partial summary judgment arising out of an ongoing appraisal proceeding in the litigation to determine the amount of insurance recoverable for the destruction of the World Trade Center complex (“WTC”) on September 11, 2001 (“9/11”). The parties to the proceeding are, on the insurers’ side, several of the companies that provided insurance coverage for the WTC on 9/11 (“the Appraising Insurers”), and, on the insureds’ side, the Port Authority of New York and New Jersey (“Port Authority”), WTC Retail LLC (f/k/a Westfield WTC LLC), and the Silverstein Parties (collectively, “the Insureds”). In the first set of motions, the Silver-stein Parties move for a declaration that the full appraised value of tenant improvements affixed to the WTC and owned by the Insureds be included in the calculation of replacement cost, one of three quantities being determined by the appraisal panel. The Appraising Insurers cross-move in three different motions — based on their similar but not identical policies — for orders that would bar the Silverstein Parties from recovering the full replacement cost of the improvements; limit the Insureds’ recovery to their “financial interest” in the improvements; declare that this financial interest is “the unamortized portion of the [Port Authority’s] original contribution to the improvements”; and hold that replacement cost coverage is inapplicable to tenant improvements and should not be calculated as to the improvements. In the second set of motions, some of the Appraising Insurers move for a declaration that the definition of actual cash value (“ACV”) in one of the policies — the Travelers form — requires application of the “broad evidence rule,” which allows the Appraisal Panel to consider any relevant evidence, including market value, tending toward an estimate of the loss caused by the destruction of the WTC. The Silver-stein Parties cross-move for a declaration that ACV must be determined according to the plain language of the definition, starting with an estimate of “replacement cost new,” deducting for the physical impairments of value specified in the policy, and avoiding any calculation that is based on or incorporates market value. For the reasons set forth below, the Silverstein Parties’ motion to include tenant improvements in replacement cost is granted and the Appraising Insurers’ related cross-motions are denied. On the second set of motions, the moving Appraising Insurers’ motion to use the “broad evidence rule” to define ACV is denied, and the Silverstein Parties’ cross-motion relating to the exclusion of market value calculations is granted. I. The following facts are drawn from the parties’ submissions, as well as prior opinions in this litigation, familiarity with which is assumed. In July 2001, the Silverstein Parties entered into 99-year leases with the Port Authority for the commercial space in the WTC, which comprised the North and South Towers, buildings 4 and 5, the retail mall, and related sub-grade spaces. West-field WTC LLC, now known as WTC Retail LLC (“WTC Retail”), entered into virtually identical leases for the complex’s retail mall. In connection with these leases, the Silverstein Parties, on behalf of themselves, the Port Authority, and WTC Retail, purchased over $3.5 billion of “per occurrence” property insurance from a group of insurers. This group included, among others, Allianz Global Risks U.S. Insurance Company (f/k/a Allianz Insurance Company), Gulf Insurance Company, Royal Indemnity Company, Travelers Indemnity Company, Zurich American Insurance Company, and Industrial Risk Insurers (“IRI”). After the destruction of the WTC, these six insurers, along with the Insureds, agreed to participate in an appraisal to determine various values under their policies (the “Appraisal”). The parties have stipulated (see Ex. 12 to TI Blatnik Deck) that the purpose of the Appraisal is to determine three specific values: (1) the replacement cost of the WTC; (2) the actual cash value of the WTC; and (3) the rental value loss that resulted from destruction of the WTC. (See id. at 2-3) Questions regarding actual claims made on a replacement cost basis as reconstruction progresses are beyond the Panel’s mandate; the provision of the stipulation that describes the replacement cost that the Panel must determine — Section I.A.1 — recognizes that “[t]he Insureds will be making claims on a replacement cost basis as moneys are expended to rebuild” but notes that “[t]hose claims are not part of the I.A.1 topic.” (Id. at 3, n. 5) A. The Insurance Policies The coverage provided by each of the Appraising Insurers is governed by one of three policies: Travelers, Insurance Services Office (“ISO”), or IRIS. Each is a “binder” policy, an interim form that covers the insured while the parties work out a final insurance agreement. All three policies provide for “replacement cost” coverage as a supplement to traditional “actual cash value” coverage through a form or collection of provisions called a Replacement Cost Endorsement (“RCE”). Although the three RCEs are not identical, their provisions and methods for determining the amount of replacement coverage are substantially similar. Specifically, the Travelers form provides that, in the event of a covered loss, “the Company will determine the value of Covered Property at replacement cost as of the time and place of loss, without deduction for physical deterioration, depreciation, obsolescence and depletion, except as otherwise provided in this endorsement....” (Ex. 1 to TI Munn Decl. at Willis 98580) This valuation is subject to several conditions, including that “[t]he Company will not pay for any loss or damage on a replacement cost basis until the property is repaired, rebuilt or replaced.” (Id.) If the property is not replaced, the RCE provides that “the value of the property will be determined at ‘Actual Cash Value,’ ” a term defined elsewhere in the RCE as “the cost to repair, rebuild or replace the lost or damaged property, at the time and place of the loss, with other property of comparable size, material and quality, less allowance for physical deterioration, depreciation, obsolescence and depletion.” (Id. at Willis 98580, 98582). This definition is the subject of the parties’ ACV motions discussed later in this opinion. The ISO policy, as modified by applicable “Optional Coverages,” provides replacement cost coverage (see Ex. A to TI Kattan Decl. at ROY 05550) whereby the insurer must “determine the value of Covered Property in the event of loss ... at [Replacement Cost (without deduction for depreciation) ] as of the time of loss or damage.” (Id. at ROY 05548) However, as under the Travelers policy, the insurer “will not pay on a replacement cost basis for any loss or damage: (1) Until the lost or damaged property is actually repaired or replaced; and (2) Unless the repairs or replacement are made as soon as reasonably possible after the loss or damage.” (Id. at ROY 05550-51) Finally, the IRI RCE, like the Travelers and ISO policies, conditions replacement coverage on repair, rebuilding, or replacement. (Ex. 3 to TI Munn Decl. at IRI 06719) However, the RCE contains a time limitation: In consideration of the increased premium ... the coverage under this policy applicable only to property as shown in paragraph D. below is hereby extended to cover such property to the amount actually expended by or in behalf of the Insured to repair, rebuild or replace within two (2) years from the date of loss or damage, at the same or at another site, such property which has been damaged. (Id. at IRI 06719-20) That provision is subject to certain valuation conditions explained in more detail below. Under all three policies, the actual amount of replacement cost proceeds payable is determined by reference to a set of “loss settlement” provisions. Under each, the insurer’s liability is either the hypothetical cost of rebuilding what was destroyed, the amount actually spent rebuilding, or the policy limits, whichever is the least. Specifically, under Section A.1 of the Travelers Replacement Cost form, coverage is the least of: a. The cost to repair, rebuild or replace, at the same site, the lost, damaged or destroyed property, with other property of comparable size, material and quality; or b. The actual amount incurred by the Insured that is necessary to repair, rebuild or replace the lost, damaged or destroyed property; or c. The Limit of Insurance.... (Ex. 1 to TI Munn Decl. at Willis 98580) Similarly, pursuant to Section G.3.e of the ISO policy, coverage is the least of “(1) the Limit of Insurance ... (2) The cost to replace the lost or damaged property [at the original premises] with other property ... [o]f comparable material and quality and ... [u]sed for the same purpose; or (3) The amount actually spent that is necessary to repair or replace the lost or damaged property.” (Ex. 2 to TI Munn Decl. at ROY 95551) Finally, under the IRI RCE, the insured receives the lesser of “the cost to repair, rebuild or replace on the same site with new materials of like kind and quality, whichever is the smallest”; “the actual expenditure incurred in repairing, rebtdlding or replacing on the same or another site, whichever is the smallest”; or the overall policy limits. (Ex. 3 to TI Munn Decl. at IRI 06719, 06720). All three policies provide coverage for the kinds of property that comprise tenant improvements. The Travelers “Property Coverage” form states that coverage is provided “for Covered Property ... for which the Insured has an insurable interest” and then defines such property to include “Buildings ... including: (1) Completed additions; (2) Fixtures, including outdoor fixtures; [and] (3) Machinery and equipment permanently attached to the building.... ” (Ex. 1 to TI Munn Decl. at Willis 98514) The ISO “Building and Personal Property Coverage Form” likewise extends coverage to “Covered Property” and defines such property in an almost identical manner. (See Ex. 2 to TI Munn Decl. at ROY 05539) The IRI policy covers in its “Property Damage” section “real property in which the Insured has an insurable interest” and then, in Paragraph D of the RCE, gives replacement coverage only to “[b]uildings and structures, building equipment, plant equipment, machinery, machine parts, office furniture, office equipment, ... and leasehold Improvements and Betterments except all such property which is obsolete or useless to the Insured____” (Ex. 3 at TI Munn Decl. at IRI 06616, 06720) This “obsolete or useless” language is unique to the IRI policy. Finally, the Travelers and ISO policies — but not the IRI policy — contain an additional clause in their general coverage provisions limiting the insured’s recovery to its “financial interest” in the property covered by the policies. (See Ex. 3 to TI Munn Decl. at WILLIS 96576 (“The Company will not pay the Insured more than the Insured’s financial interest in the Covered Property.”); Ex. 2 to TI Munn Decl. at ROY 05547 (“We will not pay you more than your financial interest in the Covered Property.”)) Neither policy defines the term “financial interest” or mentions the term in the RCEs. B. The Master and Tenant Leases The Insureds’ interests in tenant improvements are defined in two sets of leases: (1) the various leases between the individual WTC space tenants and the Port Authority (the “Tenant Leases”) for the renting of office and retail space within the WTC; and (2) the 99-year leases between the Silverstein Parties, WTC Retail, and the Port Authority (the “Master Leases”) for the leasing of the WTC. Under these latter leases, the Silverstein Parties and WTC Retail assume the various obligations held by the Port Authority under the Tenant Leases, as well as additional obligations to the Port Authority itself. 1. The Tenant Leases Under the Tenant Leases, non-removable improvements affixed to the premises by tenants become the property of the Port Authority upon installation, and the tenants lose any right to remove them. For example, the lease between the Port Authority and tenant Harris Beach & Wilcox, LLP, one of over 400 tenants in the WTC (TI Appraising Insurers Rule 56.1 Statement ¶ 12), provides that Harris Beach could not erect any “structures, ... [or] improvements, ... or install any fixtures in or on the Premises (other than [removable] trade fixtures) without prior consent of the Port Authority” and that, regardless of whether consent was obtained, “the same shall immediately become the property of the Port Authority, and the Lessee shall have no right ... to change or remove the same either during the term or at the expiration thereof.” (Ex. 17 to TI Blatnik Decl. at 15; see also Ex. 5 to TI Munn Decl. (Rosenberg & Estis Report for Market Insurers) at 5 (noting that “once improvements are installed within the demised premises, the office space leases provide that the same become the property of the landlord”); id. at 6 (reaching same conclusion for retail leases)) The Tenant Leases establish also that the Port Authority must repair or rebuild the premises, including such improvements, in the event of certain casualty losses. For example, the lease between the Port Authority and tenant Regus Business Centre states that in the event of a casualty loss, the Authority will, depending on the time it would take to repair the damage to the premises, either repair the damage, terminate the lease as to the damaged portion of the premises, or terminate the lease entirely, with corresponding rent abatements. (See Ex. H to TI Appraising Insurers Rule 56.1 Statement at 8) The lease provides also that if the damage will take over 90 days to repair, and the tenant is so notified, the tenant may terminate the lease as well. (Id.) The Port Authority’s obligations under this and other Tenant Leases are assumed by the Silverstein Parties and WTC Retail through the Master Leases. (See, e.g., Ex. F. to TI Appraising Insurers Rule 56.1 Statement at 171-72) 2. The Master Leases Under Section 11 of the Master Leases, “[a]ll improvements, fixtures, machinery, apparatus, and fittings affixed to the Premises ... shall be a part of the Premises and shall be, or become, the property of the Port Authority on the Commencement Date, or upon installation thereof ... and legal title thereto shall be and remain in the Port Authority.” (Ex. 6 to TI Munn Decl. at 151; see also Ex. 7 to TI Munn Decl. at 149) This property is part of the “premises” leased by the Port Authority to the Silverstein Parties and WTC Retail for 99 years (see Ex. 6 to TI Munn Decl. at 59-60) and is among the property that the Silverstein Parties and WTC Retail have an obligation to rebuild. Section 15 of the Master Leases sets out the rebuilding obligation: In the event that any portion of the WTC is destroyed by fire or other casualty “or by reason of any cause whatsoever,” the Silverstein Parties (or WTC Retail) at [their] sole cost and expense, and whether or not such damage or destruction is covered by insurance proceeds sufficient for the purpose ... shall rebuild, restore, repair and replace the Premises ... and any structures, improvements, fixtures and equipment, furnishings and physical property located thereon substantially in accordance, to the extent feasible, prudent and commercially reasonable, with the plans and specifications for the same as they existed prior to such damage or destruction or with the consent in writing of the Port Authority ... make such other repairs, replacements, changes or alterations as is mutually agreed to by the Port Authority and [the Silverstein Parties (or WTC Retail) ].... (Ex. F to TI Appraising Insurers Rule 56.1 Statement at 171-72) The parties agree, at least for the purposes of these motions, that the Silverstein Parties are in the process of rebuilding the WTC. {See, e.g., TI Appraising Insurers Mem. 10-11; TI Appraising Insurers Reply Mem. 7, 8) II. Whether the terms of an insurance policy are ambiguous is a question of law for the court to decide. Alexander & Alexander Servs., Inc. v. These Certain Underwriters at Lloyd’s, 136 F.3d 82, 86 (2d Cir.1998). Ambiguity exists when a contract term suggests “more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business.” World Trade Ctr. Props., L.L.C. v. Hartford Fire Ins. Co., 345 F.3d 154, 184 (2d Cir.2003) (internal quotation marks omitted); see also Zurich Am. Ins. Co. v. ABM Indus., Inc., 397 F.3d 158, 164 (2d Cir.2005). When the terms of an insurance policy, whether a binder or final policy, “are clear and unambiguous, the court should look no further than the language of the policy” itself. Citigroup, Inc. v. Indus. Risk Ins., 336 F.Supp.2d 282, 287 (S.D.N.Y.2004), aff'd, 421 F.3d 81 (2d Cir.2005); see also World Trade Ctr. Props., 345 F.3d at 184. However, “extrinsic evidence is admissible to determine the parties’ intentions with respect to the incomplete and unintegrated terms of a binder.” World Trade Ctr. Props., 345 F.3d at 184. This court has jurisdiction to resolve the parties’ present dispute despite the ongoing appraisal proceeding because the Appraisal Panel may not decide questions of law. See Duane Reade Inc. v. St. Paul Fire & Marine Ins. Co., 411 F.3d 384, 389 (2d Cir.2005) (“It is well established that the scope of coverage provided by an insurance policy is a purely legal issue that cannot be determined by an appraisal, which is limited to factual disputes over the amount of loss for which an insurer is liable.”). In other words, an “appraisal resolves only a valuation question leaving all other issues for resolution at a plenary trial.” Penn Cent. Corp. v. Consol. Rail Corp., 56 N.Y.2d 120, 127, 451 N.Y.S.2d 62, 66, 436 N.E.2d 512 (1982); see also Kawa v. Nationwide Mut. Fire Ins. Co., 174 Misc.2d 407, 664 N.Y.S.2d 430, 432 (1997) (observing that “appraisal extends merely to the specific issues of cash value and the amount of loss”). Although a court generally reviews disputed questions of law after an appraisal is complete, this timing is not mandatory. Here, the Appraisal Panel has asked unanimously that the court resolve the pending motions while the proceeding is ongoing. {See Ex. 1 to TI Miller Reply Decl.) In the interests of efficiency, I will do so, but this should not be read to invite a demand for immediate adjudication of every dispute the parties may have over the interpretation of the Travelers, ISO, and IRI policies. Rather, in cases where the parties’ dispute implicates the values the Panel is determining under the stipulation, the court will decide whether the dispute is appropriate for immediate disposition. This result is consistent with the stipulation, which provides that the Panel’s sole purpose is to determine replacement cost, actual cash value, and rental loss, and not, for example, to assess the viability of claims made for reimbursement of actual replacement expenses. (See Ex. 12 to TI Blatnik Deck at 2-3; see id. at 3 n. 5 (stating that the Insureds’ replacement cost claims are “not part of the I.A.1 topic”)) III. Turning first to the tenant improvements motions, it is undisputed that the tenant improvements at issue' — fixtures which were permanently attached to the tenants’ offices and stores — are property covered by the policies. (See TI Silver-stein Parties (SP) Mem. 6-9; TI Appraising Insurers Mem. 4) The definition of covered property in all three policies plainly encompasses tenant improvements. (See Ex. 1 to TI Munn Decl. (Travelers form) at WILLIS 98514 (stating that covered property includes “[cjompleted additions,” “[fjixtures,” and “[mjachinery and equipment permanently attached to the building”); Ex. 2 to TI Munn Decl. (ISO form) at ROY 05539 (same); Ex. 3 to TI Munn Decl. (IRI form) at IRI 06616, 06720 (extending coverage to all real property in which the insured has an “insurable interest,” and listing “[bjuildings and structures,” “building equipment,” “machinery,” and “leasehold Improvements and Better-ments” as covered in RCE)) It is also not disputed that the Insureds had an “insurable interest” in the improvements, a prerequisite to any property insurance recovery. (See, e.g., Appraising Insurers TI Mem. 18 (“Undeniably, Silverstein had an insurable interest in the 9/11 Tenant Improvements....”)) To have an “insurable interest,” an insured must be in “such a relation or connection with, or concern in, such subject matter that [it] will derive pecuniary benefit or advantage from its preservation, or will suffer pecuniary loss or damage from its destruction....” Scarola v. Ins. Co. of N. Am., 31 N.Y.2d 411, 413, 340 N.Y.S.2d 630, 631-32, 292 N.E.2d 776 (1972) (internal quotation marks omitted). The Insureds, as the owners of the improvements, suffered pecuniary loss when they were destroyed. The parties’ disagreement centers on what this insurable interest is and how it ought to be valued. The Silverstein Parties argue that the improvements should be treated the same way as the buildings to which they were attached— that is, like the WTC’s “core and shell,” they should be included in replacement cost at their full appraised value. The Insurers, noting that many of the tenants that occupied space on 9/11 have terminated or abandoned their leases, contend that the improvements cannot be valued at full replacement cost because they will never be “replaced.” Instead, they argue that the Appraisal Panel should value only “the unamortized portion of the Port Authority’s original contribution to these improvements,” the amount they claim constitutes the limit of the Insureds’ actual interest in the improvements. (TI Appraising Insurers Mem. 5) For the most part, they suggest that this smaller amount should be included in replacement cost, consistent with the position that they have already taken in the appraisal proceeding, where they have included a “tenant improvement loss” of over $220 million in replacement cost. (See TI Appraising Insurers Reply Mem. 7; Ex. 4 to TI Munn Decl. at 30; Ex. R to TI Appraising Insurers Rule 56.1 Statement at II-C 1) At times, however, they argue that tenant improvements cannot be included in replacement cost at all and that the Insureds can recover only their “financial interest” in the improvements on an ACV basis. (See, e.g., TI Royal Mem. 2; TI IRI Mem. 2; TI Appraising Insurers Reply Mem. 4) To put these arguments in context, it is important first to consider what it is that the Appraisal Panel is valuing. The Panel’s stipulated mandate is to determine the “[r]eplacement cost of the insured premises located at the World Trade Center Complex pursuant to the provisions of the Travelers, IRI, and any other policy....” (Ex. 12 to TI Blatnik Decl. at 2) This amount is plainly the hypothetical replacement cost figure that, under the loss settlement provisions of all three RCEs, must be compared to actual replacement expenditures and the policy limits to determine the amount of coverage. The figure “is really nothing more than a hypothetical measuring device” that caps the insurer’s liability if and only if the insured qualifies for replacement cost recovery. Johnson v. Colonial Penn Ins. Co., 127 Misc.2d 749, 487 N.Y.S.2d 285, 287 (1985); accord Kumar v. Travelers Ins. Co., 211 A.D.2d 128, 131, 627 N.Y.S.2d 185, 187 (4th Dep’t 1995). The calculation of hypothetical replacement cost says nothing about the insured’s actual entitlement to replacement cost recovery, an issue that is properly considered if and when the insured actually seeks reimbursement for rebuilding expenses. Indeed, the Appraisal Panel has no authority to consider this underlying coverage question and this court’s opinion does not attempt to answer it. Under the unambiguous terms of the Travelers, ISO, and IRI policies, hypothetical replacement cost must include tenant improvements at their full appraised value. At the time of loss, the improvements were fully owned by the Insureds, legally part of the WTC “premises,” and covered property under all three policies. As such, the improvements are part of the “insured premises” being valued by the Appraisal Panel at replacement cost (see Ex. 12 to TI Blatnik Decl. at 2) and are subject to the same loss settlement provisions as the buildings to which they were attached. These provisions direct the Panel to determine “[t]he cost to repair, rebuild or replace, at the same site, the ... destroyed property with other property of comparable size, material and quality.” (Ex. 1 to TI Munn Decl. at WILLIS 98580; see also Ex. 2 to TI Munn Decl. at ROY 05551; Ex. 3 to TI Munn Decl. at IRI 06719) Whatever it would cost to replace the destroyed improvements with “property of comparable size, material and quality” must therefore be included in hypothetical replacement cost. Try as they might to avoid this straightforward result, the Insurers offer no sound basis for including the improvements in hypothetical replacement cost at anything less than full value. A. Likelihood of Actual Replacement The Insurers first argue that the improvements are not eligible for replacement cost recovery because they will never be rebuilt for the 9/11 space tenants and rebuilding is a condition precedent to payment under the RCEs. (See, e.g., TI Appraising Insurers Mem. 15-18; TI Appraising Insurers Reply Mem. 1, 3-13) For the most part, this argument is directed at the Insureds’ ultimate right to collect replacement proceeds, a coverage issue that is separate from the Panel’s calculation of hypothetical replacement cost and is not properly before the court. However, to the extent the argument suggests that the improvements cannot be valued at replacement cost by the Panel, it is without merit for several reasons. As an initial matter, although actual replacement is a condition precedent to collecting replacement proceeds, it is not a condition precedent to valuing hypothetical replacement cost, which is all the Panel is authorized to do and the only issue of immediate concern. To the contrary, the facts underlying several cases demonstrate that hypothetical replacement cost is routinely calculated prior to the determination of whether a policyholder is entitled to recover replacement cost. See, e.g., D.R. Watson Holdings, LLC v. Caliber One Indem. Co., 15 A.D.3d 969, 969, 789 N.Y.S.2d 787, 787 (4th Dep’t 2005); Harrington v. Amica Mut. Ins. Co., 223 A.D.2d 222, 224, 645 N.Y.S.2d 221, 222 (4th Dep’t 1996); Kumar, 211 A.D.2d at 130, 627 N.Y.S.2d at 186; Conway v. Farmers Home Mut. Ins. Co., 26 Cal.App.4th 1185, 31 Cal.Rptr.2d 883, 883 (1994); Hess v. N. Pac. Ins. Co., 122 Wash.2d 180, 859 P.2d 586, 586 (1993); Blanchette v. York Mut. Ins. Co., 455 A.2d 426, 427 (Me.1983); Kolls v. Aetna Cas. & Sur. Co., 378 F.Supp. 392, 400 (S.D.Iowa), aff'd, 503 F.2d 569 (8th Cir.1974). This timing makes sense because the early calculation of hypothetical replacement cost informs the insured of the upper limit on the funds available for rebuilding and can thus influence the insured’s decision as to whether and how to rebuild. Consistent with this practice, Section I.A.1 of the parties’ stipulation, which describes the replacement cost calculation, acknowledges that the Insurers may challenge the Insureds’ right to receive replacement proceeds as the Insureds undertake rebuilding, but states that such “claims are not part of the I.A.1 topic.” (Ex. 12 to TI Blatnik Decl. at 3) Thus, the determination of whether the Insureds can have their loss paid on a replacement cost basis is not, as the Insurers contend, a “threshold issue” that must be resolved prior to the calculation of hypothetical replacement cost. (See TI Appraising Insurers Reply Mem. 3) Nor does the possibility that some improvements may not be replaced warrant their exclusion from the hypothetical replacement cost figure itself. Hypothetical replacement cost is an estimate of the costs of reproducing the destroyed property as it stood at the time of loss, not a calculation of the projected cost of the actual replacement property. Because, as discussed below, the replacement property need only be “functionally similar” to its predecessor, it is inevitable that certain elements of the destroyed property will not be reproduced. Although the costs of these elements are not included in the actual replacement cost, they are included in the hypothetical replacement cost, which concerns only the projected expense of replacing what was destroyed. See, e.g., Mazzocki v. State Farm Fire & Cas. Corp., 1 A.D.3d 9, 13, 766 N.Y.S.2d 719, 722 (3d Dep’t 2003) (stating that hypothetical replacement cost could include estimate for general contractor’s profit and overhead despite uncertainty that such expense would be incurred); Kolls, 378 F.Supp. at 400 (fact that shopping center owner did not replace portion of shopping center for tenant that terminated lease after loss had no effect on value of hypothetical replacement cost). In any event, even if the possibility of actual replacement were somehow a condition precedent to either the calculation of hypothetical replacement cost or the inclusion of the improvements in that cost, the Insurers cannot show that the improvements will not be “replaced” under the RCEs. As an initial matter, I am not persuaded by the Insurers’ argument that, in assessing replacement, the improvements should be considered separately from the buildings to which they were attached. (See TI Appraising Insurers Reply Mem. 11-13) In fact, the policies, the Master Leases, and the stipulation suggest otherwise. The Travelers and ISO policies include the improvements within the larger definition of “Building” (see Ex. 1 to TI Munn Decl. at WILLIS 98514; Ex. 2 to TI Munn Decl. at ROY 05539); the Master Leases state that the improvements, like the WTC core and shell, are part of the “the Premises” (see, e.g., Ex. 6 to TI Munn Decl. at 151); and the stipulation directs the Panel to determine, in the aggregate, the “[rjeplacement cost of the insured premises located at the World Trade Center Complex,” which is defined as “1, 2, 4, and 5 World Trade Center and all common areas' and sub-grade levels including the mall and retail level.... ” (Ex. 12 to TI Blatnik Decl. at 2). In addition, the Insurers have failed to identify a single case where a court considered the replacement of improvements or any other fixtures separately from the buildings to which they were attached when both were owned by the insured. If the improvements and WTC “core and shell” are evaluated together, the Insurers’ argument must fail because the Insurers concede that the Insureds are attempting to replace the WTC within the meaning of the RCEs. (See TI Appraising Insurers Mem. 10; TI Appraising Insurers Reply Mem. 8) Moreover, even considered separately from the WTC “core and shell,” the improvements are still eligible for replacement cost coverage. In assessing whether rebuilt property constitutes a replacement, .courts have determined that “functional similarity” between the property destroyed and the replacement property is all that an RCE requires. For example, courts have held that a homeowner could use replacement proceeds to build a different kind of home at another location, see, e.g., Kumar, 211 A.D.2d at 132, 627 N.Y.S.2d at 187; Johnson, 487 N.Y.S.2d at 287; Davis v. Allstate Ins. Co., 781 So.2d 1143, 1144-45 (Fla.Dist.Ct.App.2001), and that a commercial property owner could spend replacement funds on a far larger building at another site, see S & S Tobacco and Candy Co. v. Greater New York Mut. Ins. Co., 224 Conn. 313, 617 A.2d 1388, 1388-91 (1992). See generally 12 Couch on Ins.M § 176:65 (1998 & Supp.2005) (noting that even where replacement is built at new location, “functional similarity is all that has been required to conclude that the new property replaced the old”). Against this backdrop, and in the absence of any policy provision or extrinsic evidence suggesting otherwise, there is no basis for a requirement that strict congruity of tenants is required for new improvements to constitute “replacements” of old improvements. Because the Insureds have said they will construct a new office and retail complex that will presumably include tenant improvements, this court cannot say at this stage that the destroyed improvements will not be “replaced” and should be excluded from hypothetical replacement cost. B. Post-9/11 Events The Insurers argue that the decision by several tenants to terminate or abandon their leases after 9/11 somehow diminishes the Insureds’ interest in the improvements and reduces the amount that may be included for improvements in hypothetical replacement cost. (See, e.g., TI Appraising Insurers TI Mem. 2, 5, 15-18; TI Appraising Insurers Reply Mem. 1, 8-11) However, a policyholder’s insurable interest is not diminished by post-loss events that relieve the insured of certain obligations or otherwise serve to reduce the amount of loss; “it is the insurable interests existing at the time of loss which determine the rights and liabilities as between the insured and insurer.” Welch v. Commercial Mut. Ins. Co., 119 Misc.2d 630, 463 N.Y.S.2d 1011, 1014 (1983); see Eshan Realty Corp. v. Stuyvesant Ins. Co., 12 A.D.2d 818, 818, 210 N.Y.S.2d 256, 257 (2d Dep’t 1961), aff'd, 11 N.Y.2d 707, 225 N.Y.S.2d 962, 181 N.E.2d 218 (1962) (refusing to reduce policyholder’s recovery by proceeds received from sale of damaged property after loss); Alexandra Rest. v. New Hampshire Ins. Co., 272 A.D. 346, 351-52, 71 N.Y.S.2d 515, 521-22 (1947), aff'd, 297 N.Y. 858, 79 N.E.2d 268 (1948) (allowing lessee to recover full value of damaged improvements it owned even though improvements were rebuilt by landlord at no cost to tenant); Rosenbloom v. Maryland Ins. Co., 258 A.D. 14, 16, 15 N.Y.S.2d 304, 306-07 (4th Dep’t 1939) (allowing insured to recover full value for warehouse destroyed by fire even though planned sale of property to third party still went through after loss). Because the Insureds fully owned the improvements at the time of loss and even bore the legal obligation to rebuild them, there is no question that they had an insurable interest in the improvements’ full value. This interest must be reflected in hypothetical replacement cost, which, by its plain terms, measures only the theoretical cost of replacing that which was destroyed “with other property of comparable size, material and quality” and does not turn on events that transpired after the loss. (Ex. 1 to TI Munn Decl. at WILLIS 98580) Similarly irrelevant are facts known at the time of loss that could have reduced the destroyed property’s value at some point after the loss. For example, in Federowicz v. Potomac Ins. Co., 7 A.D.2d 330, 183 N.Y.S.2d 115 (4th Dep’t 1959), an insurer sought to offer evidence showing that a policyholder who owned a building destroyed by fire was under an eviction order and obligation to remove the building at time of loss. See 7 A.D.2d at 332, 183 N.Y.S.2d at 117-18. The Appellate Division refused to consider the evidence as going to the value of the building to the insured, explaining that the insured was “entitled to recover the value of the building as it stood, without regard to the fact that he might shortly thereafter be required to remove it.” Federowicz, 7 A.D.2d at 334, 183 N.Y.S.2d at 119; accord Cigna Prop. & Cas. Ins. Co. v. Verzi, 112 Md.App. 137, 684 A.2d 486, 490-91 (Md.1996) (refusing to reduce insured’s recovery for building even though building had been slated for demolition; and stating that “the facts to be considered in evaluating an insured’s pecuniary loss are those in existence at the time of loss”). Thus, the Insurers’ disputed claim that the tenant improvements had no value to the Insureds because the improvements would become worthless at the end of the tenant leases also has no bearing on insurable interest or hypothetical replacement cost. C. “Financial Interest” Provision The above analysis is not altered by a provision in the Travelers and ISO policies stating that the insurer “will not pay the Insured more than the Insured’s financial interest in the Covered Property.” (Ex. 1 to TI Munn Decl. at WILLIS 98576) The Insurers assert that this provision drastically reduces the Insureds’ stake in the improvements to the unamortized portion of the Port Authority’s original investment in the improvements, an amount that purportedly represents their full financial expectancy from the property. (See TI Appraising Insurers Mem. 14, 18-26; TI Appraising Insurers Reply Mem. 13-24) However, the Insurers arrive at this conclusion by relying entirely on the post-9/11 decision by some tenants to abandon or terminate their leases. (See TI Appraising Insurers Reply Mem. 14 n. 11 (conceding that “[i]f the 9/11 tenants were requiring Silverstein to replace the 9/11 Tenant Improvements, then Silver-stein’s ‘financial interest’ in the Improvements would equal Replacement Cost”)) However, like insurable interest, financial interest is measured at the time of loss. Thus, in Nationwide Mutual Fire Insurance Co. v. Nationwide Furniture, Inc., 932 F.Supp. 655 (E.D.Pa.1996), a case cited by the Insurers, the Court interpreted a “financial interest” clause to limit the property owner’s recovery to the sale proceeds it was to recover under a land contract already entered into at the time of loss, but refused to reduce the owner’s recovery by the amount it actually received when it sold the property after the loss. See id. at 659. Only the pre-loss sale amount mattered because the Court was obligated to “freeze the picture” on the date of loss and “focus on [the insured’s] financial interest at the time of loss, and not on later events.” Id. The Court explained, “We apply the language of the insurance contract to the facts as they existed at that point in time. Whatever happens to the seller’s financial interest thereafter is of no concern to the insurance company.” Id. Similarly, in JAM Inc. v. Nautilus Ins. Co., 128 S.W.3d 879 (Mo.Ct.App.2004), the Court was evaluating the financial interest of a policyholder who was a shareholder in a three-person corporation that owned an apartment building damaged by fire. Id. at 883-86. The Court concluded that the insured’s financial interest was the full amount of the policy despite his partial ownership because he had agreed with his co-shareholders that he would procure insurance for the building “such that his failure to obtain proper insurance rendered him potentially liable for the full amount of the insurance proceeds to which the corporation would be entitled in the event of a loss.” Id. at 895 (emphasis added). That this potential liability never materialized because the policyholder bought out his fellow shareholders soon after the loss did not affect the “financial interest” analysis. See id. at 885-86. Likewise, in American Motorists Insurance Co. v. IDEC Corp., No. C-01-20821JF, C-02-1723-JF, 2004 WL 2095699 (N.D.Cal. Sept.20, 2004), the Court refused to use a policy’s “financial interest” provision to reduce recovery where the insured sold the damaged property after the loss for a large sum. Id. at *2. The Court noted that “[o]n the date of the vandalism, [the insured] was the sole and unconditional owner of the property” and thus suffered a pecuniary loss recognizable under the financial interest clause based on the loss of various materials that were stolen from the property. See id. at *3-*4. The policyholder’s post-loss sale did not affect the financial interest analysis. See also Sirius Am. Ins. Co. v. Young’s Capital Co., LLC, No. C05-338 (JLR), 2005 WL 1287965, at *2 (W.D.Wash. May 25, 2005) (measuring existence of financial interest at time of loss, not at time of subsequent transaction conveying insured property and assigning claims to new party). The “financial interest” provision in the Travelers and ISO policies thus provides no basis for reducing the Insureds’ interest in the improvements or the amount included for improvements in hypothetical replacement cost. At the time of loss, the Insureds held full title to the improvements and faced the possibility of having to rebuild them for the tenants at their own expense, an ownership position that gave them a financial interest in the improvements’ full value. {See, e.g., Ex. 15 to TI Munn Decl. (Annotated Guide to ISO Forms) at V.J.7 (“As property owner, the insured’s financial interest in covered property is its full actual cash value or replacement cost value.”)) That some space tenants abandoned their leases after 9/11 does not diminish this interest and certainly does not limit the improvements’ value in hypothetical replacement cost to the unamortized portion of the Port Authority’s original contribution to the improvements. The Insurers concede that “legal title and 100% financial interest probably do coincide most of the time.” (TI Appraising Insurers Reply Mem. 18-19) This is one of those times. D. The Original Financing of the Improvements The Insurers suggest that the way the improvements were financed is relevant to replacement cost. {See TI Appraising Insurers Mem. 1, 12-13) They note that, by 9/11, the Insureds had recovered through monthly rent much of the “tenant improvement allowance” they purportedly provided each tenant to build the improvements, and conclude that the Insureds’ interest in the improvements should be reduced pro tanto. But even if the Insureds’ had been fully reimbursed for the improvements' — or had not paid for them in the first place — they would be entitled to recover the improvements’ full value so long as they owned them at the time of loss. As a general matter, how the Insureds acquired their ownership is irrelevant. Thus, in Foley v. Manufacturers’ & Builders’ Fire Insurance Co., 152 N.Y. 131, 134-35, 46 N.E. 318 (1897), the Court of Appeals permitted a property owner to recover the full value for partially constructed buildings he owned even though a contractor had paid for all of the materials that went into the buildings and bore the risk of loss. As the Court explained, “The fact that the improvements on land may have cost the owner nothing ... in no way affects the liability of an insurer.... ” Id. at 135, 46 N.E. 318; accord Nolan v. Firemen’s Ins. Co. of Newark, 7 N.J. Misc. 599, 146 A. 679, 679-80 (1929) (holding that property owner could recover for greenhouse erected by tenant where ownership of structure passed to property owner under terms of lease); cf. Bank of Taiwan New York Agency v. Granite State Ins. Co., No. 03 Civ. 0682(DAB)(AJP), 2003 WL 21540664, at *9 (S.D.N.Y. July 9, 2003) (holding that tenant could not recover replacement proceeds for WTC improvements it erected because ownership had passed to lessor once improvements were affixed to WTC). Thus, the Insurers’ safari into the financing of improvements under New York City real estate trade practice is a digression, and does not change how the improvements should be valued under the insurance policies. E. The Space Tenants’ Use Interests Similarly without merit is the Insurers’ assertion that the tenants’ exclusive possession and control of the improvements during their leases reduces the value of the Insureds’ interest as owners. The Insurers cite the tenants’ use interests to bolster their theory that the Insureds’ interest is limited to the unamortized portion of the Port Authority’s original contribution to the improvements. However, they fail to support this argument with a single case involving an insured who actually owned property at issue, and instead offer a string of cases that concern tenants seeking recovery for “use interests” in improvements they did not own (see TI Appraising Insurers Reply Mem. 21-22), or cases that are otherwise plainly inapposite. See C-Suzanne Beauty Salon, Ltd. v. Gen. Ins. Co. of Am., 574 F.2d 106, 112-13 (2d Cir.1978); Daeris, Inc. v. Hartford Fire Ins. Co., 105 N.H. 117, 193 A.2d 886, 888-89 (1963); Harris v. North Carolina Farm, Bureau Mut. Ins. Co., 91 N.C.App. 147, 370 S.E.2d 700, 703 (1988); Atlanta Eye Care, Inc. v. Aetna Cas. & Sur. Co., 185 Ga.App. 507, 364 S.E.2d 634, 635 (1988). Where the insured owns the destroyed property, the insured has an interest in the property’s full value, see Foley, 152 N.Y. at 134-35, 46 N.E. 318; Girard Ins. Co. v. Taylor, 6 A.D.2d 359, 362, 177 N.Y.S.2d 42, 46-47 (3d Dep’t 1958), even where the insured is a tenant, see Modern Music Shop, Inc. v. Concordia Fire Ins. Co. of Milwaukee, 131 Misc. 305, 226 N.Y.S. 630, 636 (1927). This interest is not diminished simply because portions of the property at issue are occupied by residential or commercial sub-tenants exercising their right to use those portions at the time of loss. See Conway, 31 Cal.Rptr.2d at 883-85 (considering full value of property and lacking any mention of “use interest” deduction in evaluating insured’s recovery for tenant-occupied building); Kolls, 378 F.Supp. at 393 (same); Girard, 6 A.D.2d at 361-62, 177 N.Y.S.2d at 45-46 (same); Machson v. Wausau Underwriters Ins. Co., 1986 WL 8179, at *1 (Del.Super.Ct.1986) (same); see also Nolan, 146 A. at 679-80 (affirming property owner’s recovery for greenhouse erected and used by tenant, because greenhouse “becam[e] a part of the freehold and the property of the landlord” once erected). The Insurers’ argument proves far too much. Taken at face value, it would give a landlord a much greater award after destruction of unoccupied property than after destruction of otherwise identical occupied property, a result that is facially absurd and betrays the weakness of the Insurers’ argument. Thus, there is no basis for reducing the value of the improvements in hypothetical replacement cost based upon the office and retail tenants’ use interests. F. IRI’s Additional Arguments IRI’s arguments based on unique provisions of its policy are no more persuasive. First, IRI argues that the tenant improvements should not be valued at replacement cost because the IRI RCE extends only to “the amount actually expended by or on behalf of the Insured to repair, rebuild or replace within two (2) years from the date of loss” and this two-year period has elapsed without any tenant improvement expenditures. (See TI IRI Mem. 8-9; TI IRI Reply Mem. 3-17; Ex. 3 to TI Munn Decl. at IRI 06719) Although this may prove a viable argument if and when the Insureds actually submit a replacement cost claim — assuming that IRI’s coverage is not exhausted by ACV and rental loss claims — -it has no impact on the valuation of hypothetical replacement cost, which is the only issue before the Panel and this court. To be sure, at the appropriate time, and on the appropriate motion, this court may have occasion to decide whether IRI’s replacement cost coverage applies to particular replacement expenditures incurred after September 11, 2003, whether such expenditures are for tenant improvements or anything else. But this particular question of coverage, which likely implicates all claims the Insureds may make for replacement proceeds, is not properly presented on the parties’ motions concerning the Panel’s valuation of the hypothetical replacement cost of tenant improvements as they stood on 9/11. IRI argues next that tenant improvements should not be valued at replacement cost because Paragraph D of the IRI RCE excludes from coverage “all such property which is obsolete or useless to the Insured.” (Ex. 3 to TI Munn Decl. at IRI 06720) According to IRI, the improvements are “useless” because the tenants abandoned their leases after 9/11 and usefulness is measured “at the time of the replacement cost claim.” (Id. at IRI 06720; TI IRI Reply Mem. 17-18; see also TI IRI Mem. 9-10) Unlike IRI’s argument regarding the two-year provision, I must consider this argument now because the provisions of the IRI RCE — including the loss settlement clauses — are “applicable only to property as shown in [P]aragraph D.” (Ex. 3 to TI Munn Decl. at IRI 06719) If the improvements at issue are not property covered by Paragraph D, they are not subject to the loss settlement provisions and should not have their hypothetical replacement cost valued at all. Rather, as set out in Paragraph F, “the value of any other insured property ... shall be the actual cash value at the time and place of loss.” (Id. at 06720) Turning to Paragraph D itself, the provision cannot reasonably be construed as IRI suggests. Paragraph D, in pertinent part, provides: If at time of loss, as covered under the conditions of this policy, claim is made on a replacement basis as provided by this [RCE], then the provisions of this endorsement shall apply to the following property only: Buildings and structures, building equipment, ... and leasehold Improvements and Betterments except all such property which is obsolete or useless to the Insured .... (Ex. 3 to TI Munn Decl. at IRI 06720 (emphasis added)) The obvious purpose of Paragraph D is to exclude from replacement coverage any property that is obsolete or useless to the insured at the time of loss because it would be unfair to allow the insured to collect replacement proceeds to rebuild or replace property that was of no use or value when it was destroyed. Such an interpretation of Paragraph D comports with the “time of loss” principles discussed earlier in this opinion, the purposes of replacement cost coverage, and common sense. IRI’s suggested interpretation, on the other hand, strains credulity. According to IRI, at the time of the replacement cost claim, IRI and the policyholder are supposed to somehow determine whether the property, which has already been destroyed, could be deemed “obsolete” or “useless” before destruction because “events and circumstances surrounding that property after the loss” have retroactively reduced its pre-loss value and hypothetical replacement cost to nothing. (TI IRI Reply Mem. 18 n. 11) Not only does such an interpretation lack support in the policy or the case law, but it would also lead to absurd results. For example, suppose, as IRI suggests, an unforeseen event outside the policyholder’s control occurs 90 days after the loss that renders the insured’s property “useless.” (See TI IRI Reply Mem. 18) Under IRI’s interpretation, if the policyholder filed a replacement cost claim on the 89th day after the loss, he. would recover full replacement proceeds for the destroyed property. However, if he happened to wait until the 91st day, he could recover nothing. It is simply inconceivable that any policyholder would pay the increased premium demanded by the IRI RCE (see Ex. 3 to TI Munn Decl. at IRI 06719) for coverage that could vary based on particular events unrelated to the loss itself and beyond the insured’s control. Therefore, the question posed by Paragraph D is whether the tenant improvements were “useless” to the Insureds at the time of loss. Given that hundreds of rent-paying tenants were using the improvements on 9/11 and the evidence offered by the Insureds demonstrating that the improvements had value at the end of the office and retail tenant leases (see Exs. 2-5 to TI Blatnik Deck), the answer is plainly no. IRI’s suggestion that, in the alternative, the “useless” provision instead limits the Insureds’ recovery to purported “financial interest” in the improvements— the unamortized portion of the Port Authority’s original contribution — again misreads Paragraph D. That paragraph excludes useless property from coverage, but says nothing about how property that is not “useless” is to be valued. Nor is IRI’s “financial interest” result compelled by general principles of indemnity. (See TI IRI Mem. 11-13) As discussed earlier, the Insureds fully owned the improvements at the time of loss and had both an insurable interest and a financial interest in their full value. The Panel accordingly must include the improvements in hypothetical replacement cost at full appraised value. IV. Certain of the Appraising Insurers move for a “partial summary judgment declaring that the Appraisal Panel must consider all evidence that bears on the actual cash value of the covered property.” The Silverstein Parties cross-move “for partial summary judgment respecting the determination of actual cash value under the Travelers form.” The Travelers form provides that “[i]f the property is not repaired, rebuilt or replaced as soon as reasonably possible after the loss or damage, the value of the property will be determined at ‘Actual Cash Value.’ ” (Ex. A to ACV Insurers Rule 56.1 Statement at WILLIS 98580) The bland labels the parties affix to their motions give no hint of the convoluted arguments they advance in aid of interpreting the Travelers form’s definition of ACV: ‘Actual Cash Value’ means the cost to repair, rebuild or replace the lost or damaged property, at the time and place of the loss, with other property of comparable size, material and quality, less allowance for physical deterioration, depreciation, obsolescence and depletion. CId. at WILLIS 98582) The Insurers argue that the above definition requires the Appraisal Panel to “consider all pertinent evidence, including market value, that a real estate appraiser would normally consider in evaluating the actual cash value and depreciation of real property,” and that the definition requires the Panel to “consider evidence of both economic and functional obsolescence, as well as physical deterioration.” (ACV Insurers Mem. 2) The Insurers describe the relief they seek in an alternative formulation as “an order ... declaring that the Appraisal Panel must apply the ‘broad evidence rule,’ considering all of the evidence that bears on the ‘physical deterioration,’ ‘depreciation,’ and ‘obsolescence’ of the World Trade Center at the time of the loss, including its market value.” {Id. at 19) The Silverstein Parties request a ruling that ACV “should be determined in accordance with the plain meaning of its definition.” (ACV SP Mem. 4) Accordingly, reason the Sil-verstein Parties, the court should instruct the Appraisal Panel to “(1) begin with a replacement cost new estimate; (2) subtract from that estimate ‘physical deterioration, depreciation, obsolescence and depletion,’ all of which concern physical aspects of the World Trade Center as it stood on the morning of September 11, 2001; and (3) not consider calculations based on or incorporating ‘market value.’ ” (Id.) For the following reasons, the Insurers’ motion is denied and the Silverstein Parties’ cross-motion is granted. A. The Broad Evidence Rule The “broad evidence rule” favored by the Insurers was formulated by the New York Court of Appeals in McAnarney v. Newark Fire Insurance Co., 247 N.Y. 176, 159 N.E. 902 (1928), as a default rule when a policy contains no definition whatsoever of the term “actual cash value.” Even before examining the particulars of the rule itself, it is useful to pause here to consider the logic of the Insurers’ position in relation to the origin of the broad evidence rule. The Insurers are claiming that the Travelers form presents a definition of ACV which, although it mentions neither the broad evidence rule nor market value,-does nothing more than put in place a rule that, whatever its status now, was conceived as a default rule in New York and is the “most widely accepted test” for ACV, Zochert v. Nat’l Farmers Union Prop. & Cas. Co., 576 N.W.2d 531, 533 (S.D.1998) — a rule that allows reference to market value. Which is to say, the Travelers form uses specific words to achieve the same result that would have been achieved in many jurisdictions by leaving a blank space, but without mentioning what to the Insurers are the most salient features of the broad evidence rule. Particularly when one considers that the function of ACV in the Travelers form is to limit the insured’s recovery if the property is not rebuilt, if the parties had wished only to cap recovery at market value they could easily have said “In no event shall the insured recover more than the market value of the property.” The Insurers’ position seems, at a minimum, counter-intuitive. But let us not be too hasty. Detailed analysis will yield further reasons for rejecting the Insurers’ argument. In McAnamey, the Court of Appeals, faced with a policy that awarded the insured the “actual cash value” of a destroyed building but did not define that term, rejected default approaches to ACV that either would have made “the market value of the buildings destroyed ... the exclusive measure of the [insured’s] loss,” id. at 181, 159 N.E. 902, or would have treated “cost of reproduction less physical depreciation” as “the sole measure of damage,” id. at 183, 159 N.E. 902. Instead, the McAnamey Court held: Where insured buildings have been destroyed, the trier of fact may, and should, call to its aid, in order to effectuate complete indemnity, every fact and circumstance which would logically tend to the formation of a correct estimate of the loss. It may consider original cost and cost of reproduction; the opinions upon value given by qualified witnesses; the declarations against interest which may have been made by the assured; the gainful uses to which the buildings might have been put; as well as any other fact reasonably tending to throw light on the subject. Id. at 184, 159 N.E. 902. The Insurers acknowledge that the definition of ACV in the Travelers form prevents the mere default application of the broad evidence rule. (ACV Insurers Reply Mem. 5-6) Nonetheless, they argue that the Travelers definition, “by its unambiguous terms, requires consideration of the same factors and the same evidence as application of the ‘broad evidence rule’.... ” The Insurers intimate also that the McAnamey Court’s recognition of the central role that indemnity plays in insurance law requires treating the Travelers form’s ACV definition as a restatement of the broad evidence rule. (ACV Insurers Mem. 8-10; ACV Insurers Reply Mem. 1) As set forth below, neither McAnamey nor the concept of indemnity in the large makes the Insurers’ interpretation of the definition reasonable. 1. McAnamey As noted above, supra, pp. 342-343, if the parties intended the Travelers form to provide an “embodiment,” “adaptation,” or “codification” of the broad evidence rule as described in McAnamey, they chose a singularly indirect way of making their wishes known. I agree with the Insurers that interpretation of the ACV definition in the Travelers form “appears to be a question of first impression” (ACV Insurers Reply Mem. 2) in the sense that neither the Insurers, nor the Silverstein Parties, have cited, nor has this court found, a case in which disputed language in an insurance contract is the same as the language at issue here. However, numerous cases in addition to McAnamey apply the broad evidence rule and none express that rule as a formula that deducts four discrete elements from replacement cost, as does the Travelers language. See, e.g., Gervant v. New England Fire Ins. Co., 306 N.Y. 393, 398, 118 N.E.2d 574 (1954) (“[T]he trier of fact should listen to all pertinent evidence on the subject [of loss].”); Incardona v. Home Indem. Co., 60 A.D.2d 749, 750, 400 N.Y.S.2d 944, 945 (4th Dep’t 1977) (“The general rule in New York is that the trier of facts ‘may consider ... any ... fact reasonably tending to throw light upon the subject.’ ” (quoting McAnarney, 247 N.Y. at 184, 159 N.E. 902)); Kramnicz v. First Nat’l Bank of Greene, 32 A.D.2d 1009, 1010, 302 N.Y.S.2d 22, 27 (3d Dep’t 1969) (same); Sebring v. Firemen’s Ins. Co. of Newark, 227 A.D. 103, 104, 237 N.Y.S. 120, 122 (4th Dep’t 1929) (“The trier of the fact, charged with the duty of ascerta