Brawner Builders, Inc. v. Northern Assurance Company

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cv-01042-CCB. Copies to all parties and the district court. [999718232]. [14-1787]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1787

BRAWNER BUILDERS, INC.,
Plaintiff - Appellant,
v.
NORTHERN ASSURANCE COMPANY OF AMERICA,
Defendant - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Catherine C. Blake, Chief District
Judge. (1:13-cv-01042-CCB)

Argued:

September 16, 2015

Decided:

December 15, 2015

Before MOTZ and WYNN, Circuit Judges, and DAVIS, Senior Circuit
Judge.

Affirmed by unpublished per curiam opinion.

ARGUED: Stephan Young Brennan, ILIFF, MEREDITH, WILDBERGER &
BRENNAN, P.C., Pasadena, Maryland, for Appellant.
Robert
Lawrence Ferguson, Jr., FERGUSON, SCHETELICH & BALLEW, P.A.,
Baltimore, Maryland, for Appellee.
ON BRIEF: Ann D. Ware,
FERGUSON, SCHETELICH & BALLEW, P.A., Baltimore, Maryland, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Appellee Northern Assurance Company of America (“Northern”)
insured

Appellant

Brawner

Builders,

Inc.

(“Brawner”)

for

personal injury claims arising aboard Brawner’s insured vessels,
subject to an endorsement that listed six crew members to whom
the insurance policy applied.

Dino Kalandras was a Brawner crew

member who was not listed in that endorsement.

He suffered an

injury aboard an insured vessel and sued Brawner.
that

the

insurance

policy

Northern

did

not

declined

afford
to

Asserting

coverage

provide

a

for

defense

the

Kalandras

claim,

to

Brawner.

Brawner sued Northern for breach of contract, and the

district court granted Northern’s motion for summary judgment.
Brawner timely appealed, and we affirm.
I.
A.
Northern,
Brawner,

a

a

Massachusetts

Maryland

insurance

construction

company,

contracting

insured

business,

for

bodily injuries sustained and medical expenses incurred aboard
Brawner’s insured vessels (the “Policy”).
for defense and indemnity coverage.
insured Brawner

for

“[c]osts

and defense of claims.”

The Policy provided

Under the Policy, Northern

incurred . . .

J.A. 140.

for

investigation

The indemnity portion of the

Policy covered claims, regardless of crew member status, for:
2

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(1) Loss of life and bodily injury or illness; but
excluding amounts paid under any compensation act.
(2) Hospital, medical and other expenses necessarily
and reasonably incurred with respect to loss of life,
bodily injury to, or illness of, any person.
Id.

The

indemnity

portion

also

contained

crew-specific

provisions, which covered:
(3) Crew member burial expense[s] not to exceed $1,000
per person.
(4) Repatriation expenses of crew member[s], excepting
such as arise from the termination of any agreement in
accordance with its terms, or the sale of the Vessel
or other voluntary act of the Assured. . . .
Id.
The dispute in this case centers on an endorsement attached
to

the

Policy

passengers,

and

with
crew

special
members.

conditions
The

special

for

navigation,

conditions

navigation and passengers stated the following:
1.
Navigation
It is a condition of this policy that the vessel shall
be confined to: Chesapeake Bay and tributaries,
Susquehanna and Potomac Rivers. In no event shall the
vessel be navigated beyond the limits permitted by the
United States Coast Guard.
If there is a failure to
comply with this condition there is no coverage under
this policy.
2.
Passengers
It is a condition of this Policy that the number of
passengers on board the vessel shall not exceed the
number of passengers permitted by the United States
Coast Guard or other governmental authority, whichever
is less.
If there is a failure to comply with this
condition there is not coverage under this policy.
3

for

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J.A. 143.
Of

particular

relevance

here

is

the

special

condition

regarding crew members (the “Crew Condition”), which provided as
follows:
3.
Crew
It is a condition of this Policy that the named crew
members
covered
under
this
policy
[are]
Robert
Tormollan, Robert Baker, Jr., Francis Lauer, Robert W.
Waldron, James F. Guess and Stephen Austin.
However it is a condition of this policy that there
shall not be more than two (2) crew members aboard the
insured vessel at any one time.
In the event additional crew is to be employed the
assured shall give prior notice to this company and
pay such additional premium as is required.
If the
assured shall fail to give such prior notice and at
the time of loss in respects to crew there are more
crew employed, the insurance shall respond only in the
proportion that the slated number of crew bears to the
number on board at the time of the accident.
Id.
B.
On September 14, 2011, Kalandras was injured while removing
an

engine

Kalandras

cover
was

a

aboard

one

Brawner

crew

of

Brawner’s

member.

insured

Brawner,

vessels.

however,

had

inadvertently failed to inform Northern that Kalandras had been
working on insured vessels until the day of the incident.

On

October 26, 2011, following an investigation, Northern denied
coverage for the claim because Kalandras was not one of the
named crew members under the Policy.
4

Kalandras filed suit on

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December 19, 2011, against Brawner in the United States District
Court for the District of Maryland.

Brawner defended the case,

and eventually settled the claim, at its own expense.
On April 8, 2013, in the United States District Court for
the

District

of

Maryland,

Brawner

filed

this

suit

against

Northern, alleging two counts of breach of contract, arguing
that Northern breached its duties to defend and to indemnify
Brawner in the suit initiated by Kalandras.
motion for summary judgment.

Northern filed a

The district court, construing

Brawner’s memorandum in opposition as a cross-motion for summary
judgment,
motion,

denied

and

Brawner’s

entered

cross-motion,

judgment

in

favor

granted

of

Northern’s

Northern.

Brawner

Builders, Inc. v. N. Assurance Co. of Am., No. CCB-13-1042, 2014
WL 3421535, at *6 (July 9, 2014).

Looking first at the language

of the Policy, the district court concluded that a reasonably
prudent

layperson

could

interpret

the

Policy

as

providing

coverage only for the crew members expressly listed in the Crew
Condition.
the

court

Next, the district court concluded that, “even if
were

to

assume

a

reasonable

person

could

also

interpret the Policy” to cover crew members not listed in the
Crew Condition, the extrinsic evidence demonstrated that crew
members were required to be listed in the Crew Condition to be
covered under the Policy.

Id. at *5.
5

Brawner timely appealed.

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II.
We review grants of summary judgment de novo.
Liberties

Union

v.

Mote,

423

F.3d

438,

442

(4th

Am. Civil
Cir.

2005)

(citing Lone Star Steakhouse & Saloon, Inc. v. Alpha of Va.,
Inc., 43 F.3d 922, 928 (4th Cir. 1995)).

Summary judgment is

appropriate when “there is no genuine issue as to any material
fact and . . . the moving party is entitled to judgment as a
matter of law.”

Id. (quoting Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247 (1986)).
When

reviewing

cross-motions

for

summary

judgment,

the

Court “must review each motion separately on its own merits to
determine whether either of the parties deserves judgment as a
matter of law.”

Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th

Cir. 2003) (quoting Philip Morris Inc. v. Harshbarger, 122 F.3d
58, 62 n.4 (1st Cir. 1997)) (internal quotation marks omitted).
As the Court considers each individual motion, it must “resolve
all factual disputes and any competing, rational inferences in
the light most favorable to the party opposing that motion.”
Id. (quoting Wightman v. Springfield Terminal Ry. Co., 100 F.3d
228, 230 (1st Cir. 1996)) (internal quotation marks omitted).
III.
This

appeal

requires

us

to

interpret

the

Policy

determine its coverage in light of the Crew Condition.
6

to

Brawner

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argues that the Policy is ambiguous and, as a result, should be
construed in favor of the insured.

We disagree.

The parties agree that, in this diversity action, Maryland
law is controlling.
Prop.

Cas.

Corp.,

See Provident Bank of Md. v. Travelers
236

F.3d

138,

142

(4th

Cir.

2000).

In

Maryland, before a court may find a breach of a duty to defend
or indemnify, the insured must first establish that the claim is
potentially covered under the insurance contract.

See Aetna

Cas. & Sur. Co. v. Cochran, 651 A.2d 859, 862 (Md. 1995).
construe an insurance contract by examining its terms.

We
Pac.

Indem. Co. v. Interstate Fire & Cas. Co., 488 A.2d 486, 488 (Md.
1985).

To

determine

the

parties’

intent,

we

construe

the

insurance contract as a whole and afford each word its ordinary
meaning.

Id.

A word’s ordinary meaning is determined “by what meaning a
reasonably prudent layperson would attach to the term” and may
be deduced by consulting dictionaries.

See id.

prudent

one

layperson

would

attach

only

If a reasonably

meaning,

then

the

contract is unambiguous, and we may construe it as a matter of
law.

Id. at 489.

If a reasonably prudent layperson could

attach more than one meaning, then the language is ambiguous,
and we may consider extrinsic evidence to resolve the ambiguity.
Id.
7

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Here, we have no hesitation in concluding that the Policy
is

unambiguous

because

a

reasonably

prudent

layperson

would

construe it to have only one meaning — that the Policy covered
only the crew members listed in the Crew Condition.

While the

Policy covered bodily injury and medical expenses, it specified
that such coverage was “[s]ubject to all exclusions and other
terms of this Policy.”
such “term.”

J.A. 140.

The Crew Condition was one

Not only was the Crew Condition “attached to and

made part of” the Policy, J.A. 143, but also, under Maryland
law, “the main insurance policy and an endorsement constitute a
single

insurance

contract,

and

an

effort

should

be

made

to

construe them harmoniously,” Prince George’s Cty. v. Local Gov’t
Ins. Trust, 879 A.2d 81, 88 (Md. 2005).

The Crew Condition

therefore modified the Policy’s coverage for bodily injury and
medical expenses.
To resolve the central issue before us, then, we examine
whether the Crew Condition modified the Policy to require crew
members

to

be

named.

We

conclude

that

it

did.

The

Crew

Condition provided that the listed individuals were “the named
crew

members

covered

under

this

policy.”

J.A.

143.

This

language plainly established that the Policy covered only those
named

crew

insurance

members.
context

Merriam-Webster
as

“afford[ing]
8

defines

“cover”

protection

in

the

against

or

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for.”

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Cover,

Merriam-Webster

http://www.merriam-webster.com/dictionary/cover
Nov.

13,

2015).

Similarly,

Oxford

Dictionary,

(last

defines

visited

“cover”

as

“protect[ing] against a liability, loss, or accident involving
financial

consequences.”

Cover,

Oxford

Dictionaries,

http://www.oxforddictionaries.com/us/definition/american_english
/cover (last visited Nov. 13, 2015).
Giving

“cover”

definitions,

we

its

determine

ordinary
that

meaning

the

Policy

based

on

protected

these
Brawner

against liability for injuries to the crew members named in the
Crew Condition.

It follows that a reasonably prudent layperson

would construe the Crew Condition as having identified the crew
members covered by the Policy and that, because Kalandras was
not one of the crew members identified, the Policy did not cover
liability arising from his injuries.
Brawner argues that a latent ambiguity lurks in the Policy
insofar

as

the

Crew

Condition

can

be

read

alongside

other

provisions of the Policy containing different language.

For

example, a provision of the Policy provided that Northern would
indemnify
J.A.

140,

crew.”

Brawner
which,

for

the

arguably,

medical
could

expenses
include

of

“any

“any
member

person,”
of

the

According to Brawner, other policy language is similarly

confounding:

the

Policy’s

bodily
9

injury

and

medical

expenses

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provisions,

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for

whereas

the

were.

In

provisions
an

conditions

example,

were

for

analogous

relating

to

Pg: 10 of 12

not

limited

burial

vein,

and

crew

members,

repatriation

expenses

moreover,

navigation

to

the

and

special

passengers

policy

expressly

stated that “there is no coverage under this policy” if Brawner
failed to comply with their terms, as did a separate provision
creating

a

general

condition

for

seaworthiness.

J.A.

143.

Thus, to construe the Crew Condition to limit coverage, as a
matter of law, only to the named crew members, Brawner argues,
would effectively render the language in those other provisions
superfluous.

We find this contention wholly unpersuasive.

The mere fact that the Crew Condition contained no limiting
language or explicit disclaimers found elsewhere in the Policy
affords
absence.

us

no

warrant

to

construct

an

ambiguity

from

their

Our task is to construe the language of the Crew

Condition in accordance with the plain meaning evident as the
parties agreed to it, not to go in search of language in other
provisions of the Policy describing other coverages and other
risks.
To be sure, the Policy provided for personal injury and
medical expenses coverage for “any person,” obviously a term
more expansive than “named crew member[s].”

But this difference

in language does not aid Brawner because, under Maryland law, an
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endorsement controls, rather than the main policy, where the two
provisions conflict.
As

the

Crew

Local Gov’t Ins. Trust, 879 A.2d at 88.

Condition,

set

forth

in

an

endorsement

to

the

Policy, expressly limited coverage to “named crew members,” we
must read the Policy’s coverage as limited in the same way.
Under this reading, the Policy would still provide coverage for
“any person” injured on an insured vessel, but to the extent the
injured party is a crew member, the Crew Condition required the
crew member to be named.
Our construction of the Policy is entirely harmonious with
the language in the conditions for navigation, passengers, and
seaworthiness.

The language in those conditions signals that

coverage would have been denied entirely if the conditions were
not met.

If the Crew Condition was not satisfied, however,

coverage

would

member.

For

have

only

example,

a

been

denied

single

for

occurrence

any

unnamed

could

crew

result

in

injuries to both a named crew member and an unnamed crew member.
In that instance, Brawner would only be denied coverage for the
unnamed crew member.
Finally,
mainly
insured

to

Brawner

cap

the

vessel.

Condition,

and

argues

number
Brawner

similar

of

that

the

crew

relies

language
11

members
on

in

Crew

Condition
allowed

language

the

crew

in

served

aboard

an

the

Crew

warranty,

that

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stated that “there shall not be more than two (2) crew members
aboard the insured vessel at any one time.”

J.A. 143, 154.

If

an accident occurred with more than two crew members aboard,
then the Policy only covered “the proportion that the stated
number of crew bears to the number on board at the time of the
accident.”

Id.

Brawner has not shown, however, how a two-crew-

member limitation conflicts with the explicit requirement that
the two crew members be named in the Policy.
Accordingly, we hold that the Policy unambiguously required
crew members to be named in the Crew Condition for coverage to
apply, and Northern is entitled to judgment as to the Kalandras
claim because he was not a named crew member at the time he
suffered his injury. *
IV.
For the reasons set forth, the judgment of the district
court is
AFFIRMED.

*

Having concluded that the Crew Condition is unambiguous
and that Northern is entitled to judgment as a matter of law, we
need not examine the district court’s alternative ruling that,
even if the Policy were deemed ambiguous in some relevant
respect, undisputed facts based on extrinsic evidence would
yield the same result.
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