Professional Documents
Culture Documents
No. 13-1194
MILLENNIUM INORGANIC
CHEMICALS LIMITED,
CHEMICALS
LTD.;
CRISTAL
INORGANIC
Plaintiffs - Appellees,
v.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA; ACE
AMERICAN INSURANCE COMPANY,
Defendants - Appellants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Ellen L. Hollander, District Judge.
(1:09cv01893ELH)
Argued:
Decided:
ARGUED:
Charles
Glaston
Cole,
STEPTOE
&
JOHNSON,
LLP,
Washington, D.C., for Appellants.
Joseph Lanham Beavers, MILES
& STOCKBRIDGE P.C., Baltimore, Maryland, for Appellees.
ON
BRIEF: Jonathan D. Hacker, OMELVENY & MYERS LLP, Washington,
D.C., for Appellant ACE American Insurance Company.
Roger E.
Warin, STEPTOE & JOHNSON LLP, Washington, D.C., for Appellant
National Union Fire Insurance Company of Pittsburgh, PA.
John
C. Mezzacappa, Hilary M. Henkind, MOUND COTTON WOLLAN &
Union
Fire
Insurance
Company
of
Pittsburgh,
PA
Inorganic
Chemicals
Ltd.
and
Cristal
Inorganic
contending
that
Millennium's
claim
interruption
provisions
policies
issued
for
by
the
the
Insurers
coverage
of
had
under
commercial
Insurers.
The
wrongfully
contingent
liability
district
denied
business
insurance
court
granted
of
contra
proferentem
therefore
applied.
For
the
I
A
insurance
policy
including
3
contingent
business
for
direct
suppliers/customers.
(J.A.
1193.)
In
FOR
INDIRECT
SUPPLIERS/RECIPIENTS.
(J.A.
1209.)
ACE
chose
to
purchase
its
commercial
coverage,
including the CBI endorsement, from National Union and ACE, each
of
which
would
bear
responsibility
for
50%
of
Millenniums
National
Binder),
which
Union
issued
Binder
stated,
THERE
SHALL
BE
of
Insurance
NO
COVERAGE
(a
FOR
also
provided
sublimit
on
liability
for
DIRECT
ACE
issued
Direct
Binder
Contingent
that
Time
provided
Element[s].
similar
(J.A.
sublimit
1305.)
on
Neither
CONTINGENT
PROPERTY(IES)
1496.)
The
BUSINESS
ENDORSEMENT
Endorsements
(the
INTERRUPTION
CONTRIBUTING
Endorsements).
insured
Millennium
(J.A.
against
1392,
certain
Millennium
caused
by
damage
to
certain
contributing
the
preceding
Section
B,
which
establishes
that
only
contributing
property
that
created
risk
of
business
general
section
of
each
of
the
Policies
set
policy
direct
contributing
properties
were
covered
for
$10
provision
requiring
Millennium
to
use
[its]
any
available
other
in
machinery,
order
to
equipment,
resume
supplies
operations
and
or
location
delivery
of
Millennium
was
in
the
business
of
processing
titanium
Millenniums
titanium
dioxide
processing
operation
was
pipeline.
with
Alinta
Millennium
Sales
Pty
purchased
Ltd
the
(Alinta),
gas
a
under
retail
gas
of
natural
gas
producers,
one
of
which
was
Apache
Corporation (Apache).
As a natural gas producer, Apache extracted and processed
natural gas from wells on Varanus Island, an island located off
the
coast
of
Western
Australia.
Once
Apache
processed
the
point
custody,
title,
and
risk
passed
from
Apache
to
delivered
to
Millenniums
facility
by
way
of
separate
was
solely
with
Alinta.
Millennium
had
no
contract
or
operations
and
that
there
would
be
no
gas
supply
from
government
quickly
intervened
and
imposed
controls
closed.
The
Insurers
investigated
8
Millenniums
claim
to
determined
Millennium.
there
was
As
no
consequence,
coverage
under
the
the
Insurers
Policies
for
direct
relationship
between
Millennium
and
Apache
direct
supplier
to
it
because
Alinta
provided
only
actual
material
at
issue.
National
Union
reaffirmed
its
was
Millennium.
the
only
There
was
direct
no
supplier
further
of
natural
communication
gas
to
between
the
against
the
parties.
C
In
July
2009,
Millennium
filed
complaint
invoking
the
courts
diversity
jurisdiction. 3
filed
Millenniums
joint
declaratory
cross-motion
judgment
for
and
summary
bad
judgment
faith
on
claims,
and
that
Apache
was
not
direct
supplier
to
for
motion
for
partial
summary
summary
judgment
judgment,
with
denying
respect
to
the
Insurers
Millenniums
the
district
court
reviewed
and
interpreted
the
to
direct
contributing
properties.
In
determining
the
district
court
concluded
that
the
physical
between
[Apache]
and
[Millennium]
because,
although
resolve
doctrine
the
of
ambiguity,
contra
the
district
proferentem 6
in
court
favor
of
applied
the
Millennium.
meaning
physically
Millenniums
of
the
provided
Policies
a
premises,
direct
despite
because
supply
the
of
fact
Apaches
natural
that
facility
gas
Apache
to
and
Endorsements
also
provided
coverage
for
damage
to
of
materials
to
[Millennium]
or
to
others
for
the
Based
applied
phrase
the
[for
upon
this
doctrine
the
ambiguity,
of
contra
account
the
district
of]
proferentem,
in
favor
of
court
again
construing
coverage
for
the
the
inclusive
expressly
of
pre-judgment
preserving
their
interest,
right
to
with
the
appeal
the
II
We review a district courts grant of a motion for summary
judgment de novo, construing all facts and reasonable inferences
13
III
When interpreting insurance contracts, courts first look to
the plain language of the provision at issue. See Fed. Ins. Co.
v. Intl Bus. Machs. Corp., 965 N.E.2d 934, 935 (N.Y. 2012);
Chubb Custom Ins. Co. v. The Prudential Ins. Co. of Am., 948
A.2d
1285,
1289
(N.J.
2008).
If
the
plain
language
of
the
coverage
properties.
ambiguous
only
Millennium
because
it
with
respect
argues
that
could
refer
to
direct
the
term
either
to
contributing
direct
the
is
legal
back
or
and
guided
forth
without
without
14
an
digression
intermediary,
or
or
obstruction.
Websters
Apache
Third
to
be
Millennium,
it
New
International
considered
must
have
Dictionary
direct
supplied
640.
contributing
Millennium
Thus,
for
property
with
to
materials
facilities
direct
contributing
not
dispute
that
it
on
Varanus
Island
property
of
received
its
can
be
Millennium.
gas
from
considered
Millennium
Alinta,
and
does
that
that
Apache
had
no
control
over
whether
Millennium
demonstrate
originated
how
with
much,
Apache.
if
any,
Thus,
of
neither
the
gas
Apache
it
received
nor
Apaches
physical
control
indistinguishable
of
Apaches
commingled
gas
gas
before
delivering
to
Millennium.
That
Having
Policies,
property
concluded
Apache
to
that,
on
the
plain
cannot
be
considered
Millennium,
we
consider
language
direct
Millenniums
of
the
contributing
alternative
argument that it could also receive coverage under the for the
account of clause of the Endorsements. Millenniums alternative
contention fails for the same reason as its primary argument.
Under the plain language of the Policies, coverage is triggered
only
by
damage
to
or
destruction
of
direct
contributing
IV
For the foregoing reasons, the judgment of the district
court is reversed, and we remand the case to the district court
for entry of summary judgment in favor of the Insurers.
June
3,
2008,
massive
explosion
at
natural
gas
of
natural
gas
throughout
Western
Australia.
(together,
the
Insurers)
require
the
latter
to
cover
Millenniums losses.
Although
the
interpretation
of
majority
the
opinion
disputed
provides
portions
of
reasonable
the
insurance
of
Abdul-Baki,
976
two
reasonable
F.2d
189,
policies to be ambiguous.
evaluate
the
parties
intent
extrinsic
in
192
(4th
Cir.
1992),
Atalla
find
v.
the
drafting
the
for
an
ambiguous
indication
policy
of
the
provisions.
And like the district court, I would find that none of the
proffered evidence reveals that intent.
contra
proferentem
Millennium
and
to
against
resolve
the
the
ambiguity
Insurers.
in
favor
Accordingly,
of
must
respectfully dissent.
I
A
For the policy year at issue, 200809, Millennium obtained
insurance
coverage
through
its
broker,
Marsh.
Millenniums
The
in
responsibility
provisions
aggregate
for
are
50%
for
losses,
of
any
contingent
with
each
covered
business
insurer
loss.
The
bearing
disputed
interruption
(CBI)
Zurich Am. Ins. Co. v. ABM Indus., Inc., 397 F.3d 158,
coverage
protects
against
the
loss
of
prospective
Fire Ins. Co. of La., Inc., 918 So. 2d 1060, 1061 n.1 (La. Ct.
App. 2005).
interruption
insurance[,
which]
19
replaces
profits
lost
as
result
of
physical
damages
to
the
insureds
own
property.
Archer Daniels Midland Co. v. Hartford Fire Ins. Co., 243 F.3d
369, 371 (7th Cir. 2001).
Endorsement 8 of each of Millenniums master policies sets
forth the CBI coverage.
reads as follows:
CONTINGENT BUSINESS INTERRUPTION
CONTRIBUTING PROPERTY(IES)
(Not Operated By The Insured)
A.
AMOUNT OF INSURANCE:
$(As
per
declarations)
Only
against
loss
directly resulting from necessary interruption of
business
conducted
on
premises
occupied
by
the
insured, caused by damage to or destruction of any of
the real or personal property described below and
referred to as CONTRIBUTING PROPERTY(IES) and which is
not operated by the Insured, by the peril(s) insured
against during the term of this Policy, which wholly
or partially prevents the delivery of materials to the
Insured or to others for the account of the Insured
and results directly in a necessary interruption of
the Insureds business.
B.
SCHEDULE OF LOCATION(S):
AS STATED IN
DECLARATIONS 1
C.
COVERAGE:
value
Declarations
of
$25,000,000
for
of
the
the
CBI
master
locations
coverage
policies.
that
is
set
The
Millennium
forth
coverage
has
in
limit
named
in
the
is
the
to
both
named
and
unnamed
The Declarations
locations
as
DIRECT
B
The
salient
straightforward
and
facts
giving
rise
to
undisputed.
At
all
this
suit
relevant
are
times,
energy.
Millennium
Like
many
purchased
its
businesses
natural
gas
in
from
Western
a
Australia,
supplier
or
an
Millennium
had a natural gas supply contract with one such entity, Alinta
Sales Pty Ltd. (Alinta).
Alinta
producers
obtained
in
the
Western
gas
that
Australia,
it
resold
including
from
Apache
multiple
Corporation
Apache, Alinta took title to Apaches gas when the gas entered a
major
Western
Dampier
to
Australian
Bunbury
gas
Natural
transmission
Gas
Pipeline
line
known
as
(Pipeline).
the
The
distribution facilities. 2
given
time.
Notwithstanding
the
impossibility
of
to
Millennium
at
the
inlet
point
of
Millenniums
production facilities.
On June 3, 2008, a massive explosion and fire occurred at
Apaches production facilities on Varanus Island, off the coast
of Western Australia.
20%
to
30%
of
the
gas
supply
in
Western
Australia.
Shortly
that
the
damages
total
$10,850,000,
but
The parties
the
Insurers
J.A. 760.
C
On
July
17,
2009,
Millennium
filed
this
suit
alleging,
faith.
After
lengthy
discovery
process
and
the
(D.
Md.
2012),
the
parties
submitted
cross
motions
for
summary judgment.
In a well-reasoned opinion, the district court analyzed the
language of the policies and determined that multiple reasonable
interpretations
existed
Endorsement 8.
evidence
and
for
two
disputed
provisions
in
that
none
of
it
presents
dispute
of
evidence
was
at
established.
of
contra
Millennium
sheds
the
Id.
light
time
on
that
what
the
the
parties
Master
Policies
mutual
were
proferentem
to
by
that
holding
resolve
the
Apaches
ambiguity
natural
in
gas
favor
of
production
direct
supply
of
natural
gas
to
Millenniums
Id. at 737.
The district
court
conducted
similar
analysis
and
reached
the
same
the
Insurers
motion
for
summary
judgment
regarding
II
The
Jersey
parties
law
contracts.
initially
governs
Like
the
the
disputed
whether
interpretation
district
of
court,
New
York
their
or
New
insurance
perceive
little
Supp. 2d at 728.
In both states:
Voorhees v.
Preferred Mut. Ins. Co., 607 A.2d 1255, 1260 (N.J. 1992).
See
we
first
look
to
the
language
of
the
applicable
policies.
(citations omitted).
susceptible
to
at
least
two
reasonable
alternative
Prudential Ins. Co. of Am., 948 A.2d 1285, 1289 (N.J. 2008).
See Mostow v. State Farm Ins. Cos., 668 N.E.2d 392, 394 (N.Y.
1996) (Because the policy may be reasonably interpreted in two
conflicting manners, its terms are ambiguous.).
If a provision is ambiguous, a court may look to extrinsic
evidence as an aid to interpretation.
law
for
the
courts
to
decide.).
Extrinsic
evidence
is
parties
intent
turns
on
And if a determination as to
the
credibility
of
extrinsic
the
absence
evidence,
of
clear
courts
must
policy
rely
language
on
or
additional
relevant
rules
of
[C]overage provisions
Co., 740 N.E.2d 220, 223 (N.Y. 2000) (If the language of the
policy is doubtful or uncertain in its meaning, any ambiguity
must
be
resolved
insurer.)
in
favor
(citation
of
the
omitted).
insured
When
an
and
against
insurance
the
carrier
by
relying
on
it,
we
will
construe
the
language
has
long
been
the
rule
contractual
instrument
will
against
party
prepared
the
who
be
that
resolved
or
ambiguities
contra
presented
it.
in
proferentem,
151
West
When
construing
an
ambiguous
policy,
courts
should
1278, 1282 (N.J. 1999) (quoting Mazzilli v. Accident & Cas. Ins.
Co., 170 A.2d 800, 803 (N.J. 1961)).
27
In
short,
these
cases
convincingly
show
that
there
is
But to the
extent that applicable New York and New Jersey law differ, it is
with respect to contra proferentem.
620, 622 (N.Y. 1936) with Chubb, 948 A.2d at 1294 and Pacifico
v. Pacifico, 920 A.2d 73, 78 (N.J. 2007).
Here, this is a distinction without a difference.
Although
to
obtain
its
policies,
it
did
not
possess
equal
But
were it necessary to choose between New York and New Jersey law,
I
would
apply
New
York
law
for
the
same
reasons
that
the
28
III
A
Turning now to the Insurers appeal, summary judgment shall
be granted if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law.
We review the
own
merits
to
determine
whether
either
of
the
parties
Rossignol v. Voorhaar,
316 F.3d 516, 523 (4th Cir. 2003) (quotation marks omitted).
In
the
party
opposing
that
motion.
Id.
(quotation
marks
omitted).
B
The majority opinion outlines a reasonable interpretation
of the disputed portions of Endorsement 8.
Ante at 15.
For
same
page
of
the
same
dictionary
as
that
cited
in
the
also
without
defined
as
interruption
being
or
from
diversion.
of
whether
directly
the
source
or
the
Websters
original
Third
New
Millennium
with
Specifically, direct
Apache,
contracted
the
with
pressurized
Alinta
natural
or
gas
In
fact,
or
because
distribution
it
does
lines
not
through
own
any
which
of
the
the
transmission
natural
gas
flows,
the
Because the
this
to
be
sufficient
for
Millennium
to
withstand
the
fact,
language
of
and
as
explained
Endorsement
is
relationships
between
physical
relationships
between
people
the
words
by
the
district
written
in
properties
and
terms
the
of
the
than
the
First,
the
rather
entities.
CONTRIBUTING
court,
Endorsement
uses
subtitle.
to
damage
or
PROPERTY(IES)
for
destruction
of
real
or
personal
31
All of this
physical
Millennium.
relationship
existed
between
Apache
and
that
it
actually
owned
any
of
the
gas
that
it
C
To
be
sure,
reasonable
alternate
interpretations
of
the
As I noted above,
Millennium,
district
court
interpretation
893
noted
of
the
Supp.
that
Master
2d
at
[i]t
736.
is
Policies
not
to
For
an
example,
the
unreasonable
conclude
that,
by
do
not
language
of
district
court
say
the
this
policies
also
expressly[,]
cannot
explained
id.
resolve
that
the
the
and
the
plain
ambiguity.
for
the
account
The
of
conclude
from
this
recitation
is
that
the
interpretations
ambiguous.
Id. at 739.
See
unambiguous
Atalla,
if
976
of
language
F.2d
at
susceptible
competing
of
192
of
the
reasonable
policies
is
writing
is
([N]o
two
reasonable
would,
therefore,
proceed
to
analyze
the
extrinsic
case
is
courts
nearly
2,200
conclusion
pages
that
long,
none
of
agree
the
with
extrinsic
the
district
evidence
is
none
of
the
extrinsic
evidence
is
relevant
or
responsibility
of
the
court
33
to
interpret
written
instruments.
omitted).
to
construe
the
ambiguous
policies
in
favor
of
for
partial
judgment claim.
summary
judgment
as
to
its
declaratory
I agree
For
34