PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SEABULK OFFSHORE, LIMITED,
Plaintiff-Appellant,
v.
AMERICAN HOME ASSURANCE
COMPANY,
Defendant-Appellee, No. 03-1320
and
DYN MARINE SERVICES,
INCORPORATED,
Defendant.
SEABULK OFFSHORE, LIMITED,
Plaintiff-Appellant,
v.
DYN MARINE SERVICES,
INCORPORATED,
Defendant-Appellee, No. 03-2087
and
AMERICAN HOME ASSURANCE
COMPANY,
Defendant.
Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, District Judge.
(CA-02-777-A)
Argued: February 26, 2004
Decided: July 28, 2004
2 SEABULK OFFSHORE v. AMERICAN HOME ASSURANCE
Before WILKINSON and KING, Circuit Judges, and
William D. QUARLES, Jr., United States District Judge
for the District of Maryland, sitting by designation.
Reversed in part, vacated in part, and remanded by published opinion.
Judge King wrote the opinion, in which Judge Wilkinson and Judge
Quarles joined.
COUNSEL
ARGUED: Thomas Owen Mason, WILLIAMS, MULLEN, CLARK
& DOBBINS, McLean, Virginia, for Appellant. Robert N. Kelly,
JACKSON & CAMPBELL, P.C., Washington, D.C., for American
Home Assurance Company; Caroline Turner English, ARENT, FOX,
KINTER, PLOTKIN & KAHN, P.L.L.C., Washington, D.C., for Dyn
Marine Services, Incorporated. ON BRIEF: Rachel L. Semanchik,
WILLIAMS, MULLEN, CLARK & DOBBINS, McLean, Virginia,
for Appellant. Barbara M. R. Marvin, JACKSON & CAMPBELL,
P.C., Washington, D.C., for American Home Assurance Company;
Howard V. Sinclair, J. Marcus Meeks, ARENT, FOX, KINTER,
PLOTKIN & KAHN, P.L.L.C., Washington, D.C., for Dyn Marine
Services, Incorporated.
OPINION
KING, Circuit Judge:
This appeal stems from an insurance coverage dispute rooted in a
maritime accident. Plaintiff Seabulk Offshore, Limited ("Seabulk")
appeals from rulings made in the Eastern District of Virginia in favor
of defendant American Home Assurance Company ("American
Home") and defendant Dyn Marine Services, Incorporated ("Dyn
Marine"). Seabulk initially filed suit in 2002 in the Southern District
of Texas, seeking a declaratory judgment and damages. The Texas
proceeding was thereafter transferred to the Eastern District of Vir-
SEABULK OFFSHORE v. AMERICAN HOME ASSURANCE 3
ginia, where Seabulk filed an amended complaint (the operative com-
plaint in this proceeding). By its lawsuit, Seabulk sought a declaration
that it was entitled to insurance coverage by American Home for a
lawsuit then pending against it in Texas; in the alternative, Seabulk
sought damages from Dyn Marine for breach of contract and for
fraud. In seeking declaratory relief, Seabulk alleged that it was cov-
ered under an insurance policy issued by American Home. Seabulk’s
breach of contract and fraud claims sought damages arising from a
related agreement between Seabulk and Dyn Marine. Dyn Marine
counterclaimed against Seabulk for breach of contract, and it cross-
claimed against American Home, also seeking insurance coverage for
the Texas lawsuit.
On January 28, 2003, the district court ruled that Seabulk was not
entitled to either insurance coverage or damages, it awarded summary
judgment to American Home and Dyn Marine, and it dismissed Dyn
Marine’s cross-claim against American Home. Seabulk Offshore, Ltd.
v. Dyn Marine Servs., Inc., Nos. 66 and 67 Civ. 02-777-A (E.D. Va.
Jan. 28, 2003) (the "January Opinion"). The court thereafter awarded
summary judgment to Dyn Marine, in the sum of more than $400,000,
on its counterclaim against Seabulk. Seabulk Offshore, Ltd. v. Dyn
Marine Servs., Inc., Nos. 84 and 85 Civ. 02-777-A (E.D. Va. Jul. 30,
2003) (the "July Opinion"). Seabulk has appealed, maintaining that
the court erred in its rulings.1 As explained below, the insurance pol-
icy affords coverage to Seabulk, and we therefore reverse the award
of summary judgment in favor of American Home and vacate the bal-
ance of the January Opinion. Because the July Opinion was filed
without the benefit of this decision, we also vacate and remand that
Opinion.
1
On February 26, 2003, Seabulk filed a notice of appeal from the Janu-
ary Opinion. On August 28, 2003, it filed a separate notice of appeal
from the July Opinion. The notice of appeal of February 26, 2003, was
premature in that it sought review of an interlocutory decision. See 28
U.S.C. § 1291 (establishing that courts of appeals "shall have jurisdiction
of appeals from all final decisions of the district courts"). Our jurisdic-
tion stems from the notice of appeal of August 28, 2003, which was from
the district court’s final decision, i.e., the July Opinion.
4 SEABULK OFFSHORE v. AMERICAN HOME ASSURANCE
I.
A.
Seabulk is a limited partnership headquartered in Florida; it owns
and operates offshore commercial shipping vessels.2 Dyn Marine, a
subsidiary of DynCorp, is a California corporation with its principal
place of business in Virginia; part of its business is to supply crews
to operate offshore commercial shipping vessels. American Home
maintains its principal place of business in New York, and it is
engaged in the insurance business.
On February 6, 2001, following more than a month of negotiations,
Seabulk and Dyn Marine entered into a "Manning Agreement" (the
"Agreement"), providing that Dyn Marine would supply crews to
operate two Seabulk commercial shipping vessels, the Seabulk New
Hampshire and the Seabulk Kentucky.3 Exhaustive in its scope, the
Agreement is comprised of thirteen Articles governing various
aspects of the relationship between Seabulk and Dyn Marine. Most
pertinent here is Article VIII, entitled "Insurance," which spells out
the parties’ obligations to procure and maintain insurance coverage.
Section 8.1 of the Agreement provides, inter alia, that Dyn Marine
would secure and maintain a policy of commercial general liability
insurance ("CGL insurance" or "CGL coverage"), affording coverage
for Bodily Injury and Property Damage.4 Agreement § 8.1. The CGL
2
The relevant facts in this appeal are largely undisputed. They are set
forth in this Part I as follows: subpart I.A examines the relationship
between Seabulk and Dyn Marine, detailing the relevant aspects of their
contract; subpart I.B enumerates the pertinent provisions of the insurance
policy; subpart I.C describes the underlying maritime accident and the
Texas litigation that arose therefrom; and subpart I.D spells out the pro-
cedural history of this dispute.
3
The effective date of the Agreement is designated as "TBD," presum-
ably meaning "To Be Determined." Agreement § 6.1; id. at Ex. A. The
parties concede that, for purposes of this appeal, the one year Agreement
was in effect at all times relevant to these proceedings.
4
CGL insurance normally provides coverage for the general liabilities
of businesses, including "damages that the insured becomes legally obli-
gated to pay to a third party because of bodily injury or property dam-
age." Black’s Law Dictionary 646 (abridged 7th ed. 2000); see also
Robert H. Jerry, II, Understanding Insurance Law § 65[a] (2d ed. 1996).
SEABULK OFFSHORE v. AMERICAN HOME ASSURANCE 5
coverage required by the Agreement was to be broader than typical
CGL coverage, however, in that it was to provide "in rem coverage,"
plus coverage for "contractual liability" and "completed operations."5
Id. Seabulk and Dyn Marine agreed that the CGL insurance would
have "[m]inimum limits of $5,000,000 per occurrence" with "no
annual aggregate." Id. Dyn Marine was to name Seabulk as an addi-
tional insured, with the CGL coverage being primary to any other
applicable coverage. Id. Finally, Seabulk and Dyn Marine agreed that
Dyn Marine’s insurer was to waive its rights of subrogation against
Seabulk. Id.
Pursuant to section 8.2(a), Seabulk agreed, for its part, to procure
and maintain full protection and indemnity insurance ("P&I insur-
ance" or "P&I coverage") on the Seabulk New Hampshire and the
5
Section 8.1 of the Agreement provides in pertinent part as follows:
Manager [Dyn Marine] shall procure and maintain with respect
to and for the duration of this Agreement . . . :
...
(b) Commercial General Liability Insurance: Coverage for
Bodily Injury and Property Damage, including contractual
liability, completed operations and in rem coverage. Mini-
mum limits of $5,000,000 per occurrence, no annual aggre-
gate.
...
Deductible amounts for [Dyn Marine’s] insurance will be the
responsibility of [Dyn Marine]. With regard to all [Dyn
Marine’s] Insurance policies, [Dyn Marine] shall ensure the fol-
lowing:
1. [Dyn Marine’s] insurance coverage shall be primary to any
other applicable insurance coverage.
2. [Seabulk] shall be named an Additional Insured.
3. Insurers shall waive rights of subrogation against [Seabulk].
...
6. All [Dyn Marine’s] insurance policies shall include a sever-
ability of interest or cross-liability endorsement.
Agreement § 8.1.
6 SEABULK OFFSHORE v. AMERICAN HOME ASSURANCE
Seabulk Kentucky.6 Agreement § 8.2(a). The P&I insurance was to
provide coverage, inter alia, for "maintenance, cure and unearned
wages" with respect to the Dyn Marine crews.7 Id. And Seabulk
agreed to name Dyn Marine as "a co-insured with a waiver of subro-
gation," with the P&I coverage having "a minimum [policy] limit of
$25,000,000 per occurrence." Id.
B.
During the relevant period, Dyn Marine maintained CGL coverage
through an insurance policy issued to DynCorp in Virginia by Ameri-
can Home, specifically Policy No. RM GL 612-38-16, effective from
July 1, 2000, through July 1, 2001 (the "Policy"). The Policy provided
coverage to DynCorp and thirty-four of its subsidiaries, including
Dyn Marine, which are named as insureds in the Policy’s "Broad
Named Insured Endorsement." In this Endorsement, Dyn Marine is
designated with an asterisk, indicating by footnote that the Policy
functions, with respect to Dyn Marine, "To Cover US Office Expo-
sures Only" (the "Exposures Footnote").8
6
P&I insurance typically involves "coverage for occurrences such as
personal injury or death of crew members, stevedores, passengers and
others; damage or loss to cargo; collision liabilities excluded by hull
insurance; pollution; wreck removal; certain salvage expenses; fines and
penalties; and costs of defense." Benedict on Admiralty § 12.11 (Release
No. 92, Dec. 2003).
7
Section 8.2(a) of the Agreement provides in pertinent part as follows:
Protection and Indemnity: With respect to [the Seabulk New
Hampshire and the Seabulk Kentucky] Owner [Seabulk] will
maintain full Protection and Indemnity Insurance with a member
of the International Group of P&I Clubs or P&I insurance with
a mutually acceptable insurer in the standard insurance market.
This includes but is not limited to coverage for maintenance,
cure and unearned wages in respect of [Dyn Marine’s] crew-
members, with a minimum limit of $25,000,000 per occurrence.
Owner’s P&I insurance shall name [Dyn Marine] as a co-insured
with a waiver of subrogation. Deductibles and any self-insured
retentions shall be for Owner’s account.
Agreement § 8.2(a).
8
The Broad Named Insured Endorsement provides in pertinent part as
follows:
SEABULK OFFSHORE v. AMERICAN HOME ASSURANCE 7
The Policy obligates American Home to pay to Dyn Marine those
sums that Dyn Marine becomes legally obligated to pay as damages
because of bodily injury or property damage for covered occurrences
while the Policy is in effect.9 Policy § I. It vests in American Home
"the right and duty to defend any ‘suit’" seeking such damages, and
it recognizes that American Home may, at its discretion, "investigate
any ‘occurrence’ and settle any [resulting] claim or ‘suit.’" Id. In its
Section IV, the Policy contains a "Separation of Insureds" clause,
declaring that its CGL coverage applies "[a]s if each Named Insured
were the only Named Insured," and "[s]eparately to each insured
against whom [a] claim is made or [a] ‘suit’ is brought." Policy
§ IV(7).
In addition, the Policy bears four other Endorsements that are perti-
nent to this appeal:
• Endorsement #4 (the "Coverage Territory Endorse-
ment"): This Endorsement amends the Policy’s coverage
territory "to include the Gulf of Mexico and other areas
up to [sic] including 100 miles offshore."
• Endorsement #9 (the "Watercraft Endorsement"): This
Endorsement deletes "all watercraft exclusions . . . in
their entirety." Absent the deletion of the watercraft
exclusions, the Policy would not provide coverage for
bodily injury or property damage "arising out of the
It is understood and agreed that the following are to be added as
named insured:
...
Dyn Marine Services, Inc.*
...
*To Cover US Office Exposures Only
Policy at Broad Named Insured Endorsement.
9
The Policy defines "occurrence" as "an accident, including continuous
or repeated exposure to substantially the same general harmful condi-
tions." Policy § V(9).
8 SEABULK OFFSHORE v. AMERICAN HOME ASSURANCE
ownership, maintenance, use or entrustment to others of
any . . . watercraft owned or operated by or rented or
loaned to any insured." Policy § I(2)(g).
• Maritime Liability Endorsement In Rem Coverage (the
"In Rem Endorsement"): This Endorsement modifies the
Policy’s "Section II — Who Is An Insured" to provide
that "In Rem actions against any watercraft owned or
operated by . . . any insured will in all respects be treated
in the same manner as though the action were In Perso-
nam against that insured."
• Additional Insured — Where Required Under Contract
or Agreement Endorsement (the "Additional Insured
Endorsement"): This Endorsement amends Section II of
the Policy to add as an additional insured any organiza-
tion that Dyn Marine becomes obligated to include as an
insured under a contract requiring Dyn Marine to furnish
insurance of the type provided by the Policy.10 Such an
organization benefits from the Additional Insured
Endorsement "only with respect to liability arising out of
. . . operations or premises owned by or rented to [Dyn
Marine or another named DynCorp subsidiary]." An
additional insured falling within this Endorsement’s pur-
view is entitled to coverage that does not exceed the
lesser of (1) the coverage and/or limits of the Policy, or
(2) the coverage and/or limits required by contract.
10
The Additional Insured Endorsement, in pertinent part, defines an
additional insured as:
[a]ny . . . organization to whom you [Dyn Marine or another
named DynCorp subsidiary] become obligated to include as an
additional insured under this policy, as a result of any . . . agree-
ment you enter into which requires you to furnish insurance to
that . . . organization of the type provided by this policy.
Policy at Additional Insured Endorsement (emphasis added).
SEABULK OFFSHORE v. AMERICAN HOME ASSURANCE 9
C.
On March 25, 2001, while the Agreement and the Policy were in
effect, the Seabulk New Hampshire, manned by a Dyn Marine crew,
collided in Louisiana’s Amelia Channel with a barge being towed by
the vessels Miss Debbie and Miss Sue (the "Accident"). Two Miss
Debbie crewmen thereafter filed a personal injury lawsuit against
Seabulk in the Southern District of Texas. See Simon v. Odyssea Ves-
sels, Inc., Civ. A. No. G-01-187 (S.D. Tex. 2001) (the "Texas Litiga-
tion"). Seabulk then filed a third-party complaint against Dyn Marine
in the Texas Litigation, alleging that the negligence of Dyn Marine’s
crew proximately caused the Accident. Throughout the Texas Litiga-
tion, Seabulk demanded coverage from American Home by way of
indemnification and defense, asserting that the Policy afforded it lia-
bility coverage as a result of the Additional Insured Endorsement.
American Home denied Seabulk’s demand, contending that any cov-
erage provided to Seabulk under the Policy could be no greater than
that provided to Dyn Marine. According to American Home, Dyn
Marine’s coverage was limited by the Exposures Footnote, and thus
Seabulk’s coverage was correspondingly limited. American Home
maintained that the Footnote’s qualifying language, "To Cover US
Office Exposures Only," limited the Policy’s coverage to land-based,
United States office occurrences, thus precluding coverage for mari-
time liabilities.
In May of 2002, Seabulk, Dyn Marine, and the Miss Debbie plain-
tiffs settled the Texas Litigation for the sum of $780,000, with Sea-
bulk and Dyn Marine each contributing $390,000 to the settlement.
Seabulk, pursuant to the Agreement, had procured and maintained
P&I coverage, and the P&I insurer indemnified Seabulk for the sum
it paid to settle the Texas Litigation. Subsequent to the settlement, a
Miss Sue crew member filed a personal injury suit against Seabulk in
the District of Louisiana (the "Louisiana Litigation"). Seabulk
demanded indemnification and defense from American Home and
damages from Dyn Marine, which were denied. Seabulk then settled
the Louisiana Litigation, with the P&I insurer contributing the settle-
ment funds.11
11
Seabulk’s costs of defense in the Louisiana Litigation are not at issue
in this appeal.
10 SEABULK OFFSHORE v. AMERICAN HOME ASSURANCE
D.
On March 13, 2002, during the pendency of the Texas Litigation,
Seabulk filed this lawsuit in Texas against American Home and Dyn
Marine. As noted above, Seabulk sought a declaration that it was enti-
tled to CGL coverage pursuant to the Policy and that American Home
was obligated to indemnify and defend Seabulk in the Texas Litiga-
tion, subject to the limits of the Policy. In the alternative, Seabulk
sought damages for breach of contract and for fraud, alleging that
Dyn Marine had breached the Agreement by failing to provide Sea-
bulk with CGL coverage and a competent crew, and that Dyn Marine
had fraudulently misrepresented its intentions during negotiations for
the Agreement. On April 25, 2002, Dyn Marine sought to dismiss
Seabulk’s complaint for improper venue, or, alternatively, to transfer
the litigation to Virginia. On May 21, 2002, the proceeding was trans-
ferred to the Eastern District of Virginia.
On June 25, 2002, Dyn Marine filed a counterclaim against Sea-
bulk, alleging that Seabulk had breached the Agreement by failing to
procure and maintain P&I coverage for Dyn Marine’s damages in the
Texas Litigation. On July 16, 2002, Dyn Marine cross-claimed
against American Home, seeking a declaration that, if Seabulk’s dam-
ages in the Texas Litigation were covered by the Policy, then Dyn
Marine’s damages were also covered.
Thereafter, Seabulk sought summary judgment against American
Home and Dyn Marine on three grounds. First, Seabulk maintained
that the Policy provisions were clear and unambiguous, entitling it to
coverage by American Home in the Texas Litigation. Specifically,
Seabulk asserted:
• The Policy provides CGL coverage for the Accident
because it covers bodily injuries to third parties, risks
associated with the ownership, use or entrustment of
watercraft, and risks occurring 100 miles into the Gulf of
Mexico.
• The Policy affords Seabulk CGL coverage under the
Additional Insured Endorsement, which extends Seabulk
coverage on the basis of the Agreement.
SEABULK OFFSHORE v. AMERICAN HOME ASSURANCE 11
• Even if the Exposures Footnote of the Policy limits Dyn
Marine’s coverage to land-based occurrences, it does not
similarly limit Seabulk’s coverage. Seabulk derives its
coverage from the Additional Insured Endorsement,
which extends additional insureds the coverage provided
by the Policy, and which does not premise the extent of
such coverage on that of a named insured (in these cir-
cumstances, Dyn Marine).
• The Exposures Footnote of the Policy limits coverage
not to land-based operations, but rather to operations
based out of Dyn Marine’s United States offices, as
opposed to overseas offices.
Second, Seabulk contended that, if the Policy did not afford it cov-
erage, then Dyn Marine had breached the Agreement. Specifically,
Seabulk maintained that:
• The Agreement required Dyn Marine to provide CGL
coverage, which would be primary to any other applica-
ble coverage, and which would insure situations like the
Accident and the Texas Litigation, i.e., damages stem-
ming from bodily injury to third parties from in rem mar-
itime risks.
• Article VIII of the Agreement, assessed in its entirety,
illustrates that Seabulk agreed to a limited insurance
obligation; it was to procure and maintain P&I coverage
only with respect to Dyn Marine’s crew. Dyn Marine,
however, agreed to a broad insurance obligation; it was
to secure CGL coverage for damages for bodily injury or
property damage stemming from in rem maritime risks,
i.e., situations like the Accident and the Texas Litigation.
Third, Seabulk sought summary judgment on the alternative
ground that Dyn Marine had fraudulently misrepresented its inten-
tions during the negotiations on the Agreement. Seabulk alleged that
Dyn Marine had represented that the CGL coverage would extend to
bodily injury and property damage resulting from the operation of the
Seabulk New Hampshire and the Seabulk Kentucky. After the Acci-
12 SEABULK OFFSHORE v. AMERICAN HOME ASSURANCE
dent occurred, according to Seabulk, Dyn Marine reneged on those
representations, denying that it was obligated to provide Seabulk with
CGL coverage. Seabulk thus asserted that it had been fraudulently
induced to enter into the Agreement.
American Home also moved for summary judgment against Sea-
bulk and Dyn Marine, seeking a declaration that it was not obligated
by the Policy to indemnify or defend Seabulk or Dyn Marine. Specifi-
cally, American Home maintained that Dyn Marine’s coverage under
the Policy was limited by the Exposures Footnote. American Home
contended that the Exposures Footnote limited Dyn Marine’s cover-
age under the Policy to "something less" than full CGL coverage;
more specifically, that it was limited to occurrences within "United
States offices" (ostensibly, land-based occurrences, not maritime
occurrences).
American Home explained that, although Seabulk was an addi-
tional insured under the Policy by virtue of the Agreement, Seabulk
obtained its coverage through Dyn Marine. American Home main-
tained that such coverage could be no greater than Dyn Marine’s cov-
erage. Accordingly, because Dyn Marine was not entitled to coverage
for the Texas Litigation by virtue of the Exposures Footnote, Seabulk
also lacked coverage. Furthermore, American Home contended that it
was not obligated to indemnify Seabulk for its damages because Sea-
bulk had been reimbursed by its P&I insurer for the settlement of the
Texas Litigation.
Finally, Dyn Marine sought summary judgment on Seabulk’s
breach of contract and fraud claims, asserting three bases for relief.
First, Dyn Marine contended that the Agreement did not require it to
provide Seabulk with coverage for maritime risks because Dyn
Marine was only obligated to procure and maintain CGL coverage,
which traditionally covers land-based occurrences only. Furthermore,
Dyn Marine asserted, the Agreement required Seabulk to procure and
maintain P&I coverage, which was specifically intended to cover
maritime risks. Accordingly, Dyn Marine urged the court to consider
parol evidence (the evidence of insurance experts and risk managers)
on the definitions of "CGL insurance" and "P&I insurance," in that
those terms were not defined in the Agreement. Dyn Marine main-
tained that such parol evidence would reveal that the CGL insurance
SEABULK OFFSHORE v. AMERICAN HOME ASSURANCE 13
did not provide coverage for Seabulk’s damages in the Texas Litiga-
tion. Second, Dyn Marine contended that, even if it had breached the
Agreement, Seabulk had suffered no damages or, at most, was limited
to recovering the amount of its deductible only, in that Seabulk’s P&I
insurer had reimbursed it for the costs of investigation, its attorneys’
fees, and the settlement of the Texas Litigation. Third, Dyn Marine
asserted that it was entitled to summary judgment because Seabulk
could point to no facts in support of its claim that Dyn Marine com-
mitted fraud or misrepresented its intentions during the negotiations
on the Agreement.
By its January Opinion, the district court (1) denied Seabulk’s
motion for summary judgment against American Home and Dyn
Marine, (2) granted American Home summary judgment against Sea-
bulk, (3) granted Dyn Marine summary judgment against Seabulk, (4)
dismissed Dyn Marine’s cross-claim against American Home, and (5)
deferred ruling on Dyn Marine’s counterclaim against Seabulk. In its
analysis, the court first examined the dispute between Seabulk and
American Home, assessing the pertinent provisions of the Policy. The
court characterized the dispute as hinging upon two issues: first,
"whether the language limiting Dyn Marine’s coverage to U.S. office
exposures preclude[d] coverage for damages arising out of the [Acci-
dent]," and second, "whether that limiting language also applie[d] to
Seabulk." January Opinion at 6-7.
In addressing the first issue, the court rejected Seabulk’s assertion
that the Exposures Footnote referred not to land-based operations, but
rather to operations based out of Dyn Marine’s United States offices,
as opposed to overseas offices. Because Dyn Marine did not have
international offices, the court concluded that interpreting the Expo-
sures Footnote "as excluding overseas operations would effectively
read the coverage limitation out of the policy." Id. at 7. Recognizing
that it was required to interpret the Policy provisions so as to give
effect to each clause, the court concluded that "To Cover US Office
Exposures Only" was "better read as limiting coverage to incidents
that result from operations within Dyn Marine’s offices on land." Id.
at 8.
Turning to the second issue, the court addressed Seabulk’s conten-
tion that even if the Policy limited Dyn Marine’s coverage to injuries
14 SEABULK OFFSHORE v. AMERICAN HOME ASSURANCE
caused by land-based occurrences, such limitation did not apply to
Seabulk’s coverage because the Additional Insured Endorsement did
not refer to the Exposures Footnote limitation. Rejecting this conten-
tion, the court determined that the Additional Insured Endorsement
could not extend Seabulk greater coverage than that enjoyed by Dyn
Marine. Id. at 9. In support of its conclusion, the court noted that,
"[w]here an insurer extends coverage to a party through a Named
Insured, the insurer would be unlikely to intend such coverage to be
greater than that it provides to the Named Insured." Id. The court
explained that, "[i]f the scope of coverage were not subject to the
same limitations as the coverage provided to the Named Insured, the
insurer would be unable to anticipate the amount of risk that would
be undertaken by insuring any number of unknown parties who are
unnamed at the time of contracting." Id. For these reasons, it awarded
summary judgment against Seabulk.
The court then turned to the dispute between Seabulk and Dyn
Marine, focusing first on whether Dyn Marine breached the Agree-
ment "by failing to provide insurance coverage to Seabulk for injuries
to third parties," and second on whether Dyn Marine "made material
misrepresentations to Seabulk that wrongfully induced Seabulk" to
execute the Agreement. Id. at 11. On the first issue, the court
observed that, although the Agreement mandated that Dyn Marine
procure and maintain CGL coverage, it did "not explicitly require
coverage for risks at sea." Id. at 13. Accordingly, the court utilized
parol evidence to determine "whether risks at sea were required to be
covered simply by the requirement of a CGL policy." Id. at 14.
Because "the experts and risk managers of both parties appear[ed] to
agree that a standard CGL policy would contain a watercraft exclu-
sion," the court concluded that the Agreement’s requirement that Dyn
Marine "provide a CGL policy [did] not in and of itself mandate cov-
erage for risks at sea." Id. Consequently, the court viewed the "real
issue" of the dispute as turning "on whether the language that
require[d] the CGL policy to be primary to other coverage or that
require[d] in rem coverage mandate[d] that Dyn [Marine] procure a
policy with the standard watercraft exclusion deleted." Id. at 14-15.
On the question of whether the primary coverage requirement cre-
ated an obligation on Dyn Marine to provide coverage for risks at sea,
the court responded in the negative. It determined that, "[w]hile that
SEABULK OFFSHORE v. AMERICAN HOME ASSURANCE 15
provision does support the proposition that the parties contemplated
that there may be some occurrences which would be covered by the
CGL policy and another policy (possibly, but not limited to, the P&I
policy), it does not support the conclusion that those doubly-covered
risks would necessarily be at sea." Id. at 15-16. As a result, the court
refused to "read an additional coverage requirement into [the Agree-
ment] simply because the parties contemplated that there may at times
be coverage provided by two insurance policies." Id. at 16.
The court next assessed Seabulk’s contention that the Agreement
required Dyn Marine to provide coverage for risks at sea by mandat-
ing Dyn Marine to obtain in rem coverage. In rejecting this conten-
tion, the court reasoned that, "[b]ecause in rem coverage would
protect an insured whenever an entity was sued, even if the occur-
rence happened on land, . . . the requirement of in rem coverage itself
[did] not necessarily create a requirement that coverage for at sea risk
be provided." Id. at 17. Accordingly, the court concluded that the
Agreement did not require Dyn Marine to provide coverage for risks
at sea, and it awarded summary judgment to Dyn Marine against Sea-
bulk.
Finally, the court considered Seabulk’s fraud claim, i.e., that Dyn
Marine made "material misrepresentations regarding the insurance
coverage it would obtain, and [that] Seabulk was wrongfully induced
to enter into the [ ] Agreement." Id. at 18. On this issue, the court held
that Seabulk failed to establish that false representations were made,
and it awarded Dyn Marine summary judgment. Id. at 19. The court
deferred ruling on Dyn Marine’s counterclaim against Seabulk for
breach of contract because briefing of that issue was incomplete. Id.
Thereafter, by its July Opinion, the court (1) granted summary
judgment on Dyn Marine’s breach of contract counterclaim against
Seabulk (for failing to provide Dyn Marine P&I insurance), in the
sum of $478,734.58, and (2) denied summary judgment on Seabulk’s
claim that it was required to provide P&I insurance only for injuries
or illness to Dyn Marine’s crews, rather than to third-party crewmen.
In making these rulings, the court again considered parol evidence
and found that, in general, P&I insurance covers injuries to third par-
ties, and the P&I coverage requirement of the Agreement extended
16 SEABULK OFFSHORE v. AMERICAN HOME ASSURANCE
Seabulk’s obligation to provide coverage for the crew of the Miss
Debbie. July Opinion at 6-7.
Seabulk has appealed, and we possess jurisdiction pursuant to 28
U.S.C. § 1291.
II.
We review de novo a district court’s award of summary judgment,
viewing the facts and inferences drawn therefrom in the light most
favorable to the non-moving party. Spriggs v. Diamond Auto Glass,
242 F.3d 179, 183 (4th Cir. 2001). An award of summary judgment
is appropriate only "if the pleadings, depositions, answers to interrog-
atories, and admissions on file, together with the affidavits, . . . show
that there is no genuine issue of material fact and that the moving
party is entitled to a judgment as a matter of law." Fed. R. Civ. P.
56(c). We also review de novo a district court’s decision on an issue
of contract interpretation. Choice Hotels Int’l, Inc. v. BSR Tropicana
Resort, Inc., 252 F.3d 707, 710 (4th Cir. 2001). The interpretation of
a written contract is a question of law that turns upon a reading of the
document itself, and a district court is in no better position than an
appellate court to decide such an issue. Hendricks v. Cent. Reserve
Life Ins. Co., 39 F.3d 507, 512 (4th Cir. 1994).
III.
Seabulk contends that the district court erred in awarding summary
judgment to American Home and Dyn Marine on Seabulk’s amended
complaint and in awarding summary judgment to Dyn Marine on its
counterclaim against Seabulk. Specifically, Seabulk maintains that it
is entitled to summary judgment against American Home because the
Policy is clear and unambiguous. In the alternative, Seabulk maintains
that if the Policy is ambiguous, it must be strictly construed against
American Home to provide coverage, or the dispute must be
remanded for a jury determination on whether Seabulk is entitled to
coverage. Seabulk also contends, inter alia, that if the Policy does not
afford coverage, it is entitled to summary judgment against Dyn
Marine for breach of contract because the Agreement required that
Seabulk be provided with coverage.
SEABULK OFFSHORE v. AMERICAN HOME ASSURANCE 17
A.
A federal court resolving a diversity action is, absent a controlling
constitutional provision or act of Congress, obliged to apply the sub-
stantive law of the state in which it sits, including the state’s choice-
of-law rules. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); see
also Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)
(observing that forum state’s choice-of-law rules are substantive).
This appeal arises from the Eastern District of Virginia and, pursuant
to Virginia jurisprudence, an insurance policy is a contract to be con-
strued in accordance with the principles applicable to all contracts.
Graphic Arts Mut. Ins. Co. v. C.W. Warthen Co., 397 S.E.2d 876, 877
(Va. 1990). Questions concerning the validity, effect, and interpreta-
tion of a contract are resolved according to the law of the state where
the contract was made. Woodson v. Celina Mut. Ins. Co., 177 S.E.2d
610, 613 (Va. 1970) (applying principle of lex loci contractus). Under
Virginia law, a contract is made when the last act to complete it is
performed, and in the context of an insurance policy, the last act is
the delivery of the policy to the insured. Metcalfe Bros., Inc. v. Am.
Mut. Liab. Ins. Co., 484 F. Supp. 826, 829 (W.D. Va. 1980). In this
matter, the Policy was delivered to DynCorp, Dyn Marine’s parent,
at its offices in Reston, Virginia. As the district court properly recog-
nized, therefore, a judicial assessment of the Policy is governed by
Virginia law.
Under Virginia law, if policy language is clear and unambiguous,
we do not apply rules of construction; rather, we give the language
its plain and ordinary meaning and enforce the policy as written.
P’ship Umbrella, Inc. v. Fed. Ins. Co., 530 S.E.2d 154, 160 (Va.
2000). Conversely, when the policy language is ambiguous and the
intentions of the parties cannot be ascertained, the policy must be con-
strued strictly against the insurer and liberally in favor of the insured,
so as to effect the dominant purpose of indemnity or payment to the
insured. St. Paul Fire & Marine Ins. Co. v. S.L. Nusbaum & Co., 316
S.E.2d 734, 736 (Va. 1984); see also Grayson-Carroll-Wythe Mut.
Ins. Co. v. Allstate Ins. Co., 582 F. Supp. 560, 564 (W.D. Va. 1984);
White Tire Distribs., Inc. v. Pa. Nat’l Mut. Cas. Ins. Co., 367 S.E.2d
518, 519 (Va. 1988) (recognizing that, when policy language is sus-
ceptible to two constructions, it must be construed in favor of
insured). Policy language is deemed ambiguous "when it may be
18 SEABULK OFFSHORE v. AMERICAN HOME ASSURANCE
understood in more than one way or when such language refers to two
or more things at the same time." Salzi v. Va. Farm Bureau Mut. Ins.
Co., 556 S.E.2d 758, 760 (Va. 2002); see also Caldwell v. Transp.
Ins. Co., 364 S.E.2d 1, 3 (Va. 1988) (observing that policy language
is ambiguous when capable of two reasonable constructions).
B.
As explained below, our analysis of the Policy reveals that its perti-
nent provisions are clear and unambiguous, and that it affords CGL
coverage to Seabulk for its damages in the Texas Litigation. We com-
mence our analysis by examining the coverage generally provided by
the Policy under its terms, endorsements, and exclusions. We then
conclude that Seabulk is entitled to such coverage, and that its cover-
age is not limited to that afforded to Dyn Marine.
1.
As American Home concedes, the Policy provides CGL coverage
for bodily injuries to third parties, risks associated with the owner-
ship, use or entrustment of watercraft, and maritime risks occurring
100 miles into the Gulf of Mexico.12 See Brief for Appellee at 8; see
also Policy § I; id. at Watercraft Endorsement; id. at Coverage Terri-
tory Endorsement. Furthermore, American Home agrees that the Pol-
icy requires that in rem actions against watercraft are to be treated as
in personam actions against insureds. See supra note 12; see also Pol-
icy at In Rem Endorsement. Generally speaking then, risks such as the
Accident and its resulting Texas Litigation fall squarely within the
ambit of the CGL coverage provided by the Policy and required by
the Agreement. See Agreement § 8.1 (providing, in pertinent part, that
Dyn Marine shall procure and maintain CGL coverage for "Bodily
Injury and Property Damage," and Seabulk "shall be named [as] an
Additional Insured" with its coverage being primary to any other
12
In its Brief, American Home recognizes that Seabulk is "literally cor-
rect" in maintaining that the Policy: "‘(1) cover[s] bodily injury to third
parties, (2) cover[s] risks at sea, (3) delete[s] the standard watercraft
exclusion thereby covering marine risks, (4) contains a maritime liabili-
ties endorsement for in rem coverage, [and] (5) covers risks 100 miles
into the Gulf of Mexico.’" Brief for Appellee at 8.
SEABULK OFFSHORE v. AMERICAN HOME ASSURANCE 19
applicable coverage). Seabulk is entitled to such coverage as an addi-
tional insured on the basis of the Policy’s Additional Insured Endorse-
ment. This Endorsement extends to Seabulk the CGL insurance
afforded by the Policy based on the Agreement’s requirement that
Dyn Marine provide CGL insurance to Seabulk covering the opera-
tion of the Seabulk New Hampshire and the Seabulk Kentucky. Policy
at Additional Insured Endorsement (adding Seabulk as additional
insured under Policy by virtue of Dyn Marine’s obligation to furnish
coverage "of the type provided by [the Policy]"); see also Agreement
§ 8.1.
2.
This dispute centers upon the extent of CGL coverage to which
Seabulk is entitled under the Policy — which, significantly, the Addi-
tional Insured Endorsement addresses. This Endorsement explains
that the CGL insurance provided by American Home will not exceed
the lesser of (1) the coverage and/or limits of the Policy, or (2) the
coverage and/or limits required by the Agreement. Policy at Addi-
tional Insured Endorsement. As the pertinent provisions of the Policy
plainly reflect, American Home is obligated to provide coverage for
"those sums that the insured [Seabulk] becomes legally obligated to
pay as damages because of ‘bodily injury’ or ‘property damage.’"
Policy § I. Such coverage was required by the Agreement, which spe-
cifically mandated minimum coverage of "$5,000,000 per occur-
rence" with "no annual aggregate." Agreement § 8.1. Accordingly, an
in pari materia assessment of the Additional Insured Endorsement
and the Agreement demonstrates that Seabulk is entitled to CGL cov-
erage for its damages stemming from the Accident in a sum not to
exceed $5,000,000. As a consequence, the dispute between Seabulk
and American Home hinges on one rather narrow issue: whether the
Exposures Footnote in the Policy’s Broad Named Insured Endorse-
ment — an Endorsement entirely separate from the Additional
Insured Endorsement — unambiguously limits the extent of Seabulk’s
CGL coverage to something less than that to which it is otherwise
entitled under the Policy.13
13
Our determination that this dispute hinges on the reach of the Expo-
sures Footnote squares with American Home’s characterization of the
20 SEABULK OFFSHORE v. AMERICAN HOME ASSURANCE
On this point, American Home contends that, because the Expo-
sures Footnote places a limitation on Dyn Marine’s coverage, Sea-
bulk’s coverage as an additional insured through Dyn Marine is
correspondingly limited.14 We are constrained to disagree. As we have
noted, Seabulk’s coverage under the Policy derives from the Addi-
tional Insured Endorsement; Seabulk is thus afforded broader cover-
age than Dyn Marine because, pursuant to that Endorsement, Seabulk
is entitled to the coverage generally provided by the Policy, limited
only by its damages not to exceed $5,000,000. Though Dyn Marine
would have us recognize an explicit limitation as to Seabulk in the
Policy, there is none to be found in either the Additional Insured
Endorsement or the Broad Named Insured Endorsement.
Put most simply, Dyn Marine derives its coverage from the Broad
Named Insured Endorsement, whereas Seabulk derives its coverage
from the Additional Insured Endorsement. The Additional Insured
Endorsement provides that Seabulk is to be treated as an additional
insured under the Policy as a result of the Agreement’s requirement
that Dyn Marine "furnish insurance to [Seabulk] . . . of the type pro-
vided by [the Policy]." Policy at Additional Insured Endorsement
(emphasis added). And as we have explained, the coverage "provided
by the Policy" consists of CGL coverage for bodily injuries to third
parties, risks associated with the ownership, use or entrustment of
watercraft, and maritime risks occurring 100 miles into the Gulf of
Mexico. Accordingly, the Policy covers Seabulk in the Texas Litiga-
tion because the Additional Insured Endorsement, the genesis of Sea-
bulk’s coverage, provides the general CGL coverage afforded by the
Policy and does not limit the extent of that coverage to the coverage
issue on appeal, i.e., "whether a limitation that expressly affects a spe-
cific Named Insured also applies to an additional insured whose rights
to coverage under the [P]olicy are derived through that specific Named
Insured." Brief for Appellee at 27. American Home agrees, then, that the
issue we must resolve is not whether the Policy entitles Seabulk to cover-
age, but rather whether such coverage is limited by the Exposures Foot-
note.
14
Although we recognize that Dyn Marine’s CGL coverage is limited
to "US Office Exposures Only," we express no view on the meaning of
that limitation.
SEABULK OFFSHORE v. AMERICAN HOME ASSURANCE 21
provided to Dyn Marine. As the Policy is clear and unambiguous on
this point, we give effect to its plain and ordinary language and
enforce it as written. P’Ship Umbrella, Inc., 530 S.E.2d at 160. The
Broad Named Insured Endorsement, and the Exposures Footnote
embedded therein, are thus inapplicable to our resolution of this dis-
pute.
In its determination that the Additional Insured Endorsement could
not extend Seabulk greater coverage than that enjoyed by Dyn
Marine, the district court was motivated by the concern that American
Home would face unforeseeable insurance obligations, i.e., that "[i]f
the scope of coverage were not subject to the same limitations as the
coverage provided to the Named Insured, the insurer would be unable
to anticipate the amount of risk that would be undertaken by insuring
any number of unknown parties who are unnamed at the time of con-
tracting." January Opinion at 9. This is not the situation, however, as
the scope of Seabulk’s coverage is limited to insurance "of the type
provided by [the Policy]." Policy at Additional Insured Endorsement.
American Home would therefore not be required to provide coverage
beyond that set forth in the Policy. And the court’s concern about the
Policy extending coverage to "too many" additional insureds is an
issue that falls squarely on the shoulders of American Home, which
could have written the Policy to limit that possibility.
The primary decisions on which American Home relies to limit
Seabulk’s coverage are not at odds with our conclusion. First of all,
American Home relies on the Tenth Circuit’s decision in Sonoco
Products Co. v. Travelers Indemnity Co., 315 F.2d 126 (10th Cir.
1963). In Sonoco, the court observed that, under Texas law, an insur-
ance policy does not extend any greater coverage to an additional
insured than to the named insured "so as to insure such person for an
unauthorized use when the named insured would not have been cov-
ered under the same circumstances." Id. at 128-29.
American Home’s reliance on the Sonoco decision is misplaced.
The Tenth Circuit there analyzed an omnibus clause of an automobile
liability policy issued to a single named insured. Id. at 128. The omni-
bus clause purported to extend coverage to those using the automobile
with the permission of the insured, and the court recognized that,
while the clause was intended to extend coverage to others, it did not
22 SEABULK OFFSHORE v. AMERICAN HOME ASSURANCE
alter the nature of coverage, the policy’s declarations, or its exclu-
sions. Id. Importantly, because that dispute involved a single named
insured, his coverage was synonymous with that generally provided
by the policy. In this dispute, on the other hand, the Policy covers
many insureds, some of which (like Dyn Marine) do not enjoy the
Policy’s full CGL coverage because of certain exceptions.
The Exposures Footnote creates one such exception. Although the
Exposures Footnote limits Dyn Marine’s CGL coverage to "US
Office Exposures Only," its plain language does not limit the cover-
age of an additional insured such as Seabulk. Indeed, the Broad
Named Insured Endorsement — containing the Exposures Footnote
— does not explicitly address the scope of coverage afforded to addi-
tional insureds under the Policy. Instead, the scope of such coverage
is set forth in the Additional Insured Endorsement.
In further support of its position, American Home relies on our
decision in Tidewater Equipment Co. v. Reliance Insurance Co., 650
F.2d 503 (4th Cir. 1981). As its January Opinion reflects, the district
court interpreted Tidewater, which relies on the views expressed in
various insurance law treatises, to stand for the proposition that,
"[w]henever a party receives coverage as an additional insured, that
party’s rights are limited by the terms and conditions of the insurance
contract, as are the rights of the Named Insured."15 January Opinion
at 9 (citing Tidewater Equip. Co., 650 F.2d at 506). As in Sonoco,
Tidewater involved a single named insured, and its coverage was syn-
onymous with that generally provided by the policy. Thus, Tidewater
does not implicate the situation here, where the Policy provides dif-
fering coverage to a number of insureds. As such, Tidewater’s recog-
15
The dispute in Tidewater involved three parties: Reliance, an insurer,
provided coverage to its named insured, Keystone; in turn, Keystone
entered into a contract to provide insurance to Tidewater. Thereafter,
Keystone arranged for Tidewater to be listed as an additional insured
under its policy issued by Reliance. In an action by Tidewater against
Reliance for breach of the insurance contract, we accurately recognized
that "Tidewater’s right [of action] against Reliance is as an additional
insured under the insurance contract between Keystone and Reliance,
and as such is limited by the terms and conditions of that contract." Tide-
water Equip. Co., 650 F.2d at 506.
SEABULK OFFSHORE v. AMERICAN HOME ASSURANCE 23
nition that the additional insured’s coverage was limited in scope to
the coverage provided to the named insured is not pertinent to the dis-
pute before us.
Had American Home intended to limit Seabulk’s coverage to "US
Office Exposures Only," it could have done so. And it could have
accomplished that purpose by simply providing, in the Additional
Insured Endorsement or otherwise, that the coverage accorded an
additional insured under the Policy is limited to that provided to the
named insured through which it acquired its coverage. Because Amer-
ican Home failed to so limit Seabulk’s coverage, Seabulk is entitled
to the coverage generally provided by the Policy. Because the Policy
affords Seabulk coverage, it is entitled to judgment to that effect.
C.
1.
Our determination that the Policy affords Seabulk CGL coverage
for its damages in the Texas Litigation does not end our inquiry. The
district court’s erroneous conclusion on that issue caused it to con-
sider and rule upon Seabulk’s alternative contentions in support of
summary judgment against Dyn Marine, i.e., that Dyn Marine had
breached the Agreement by failing to provide Seabulk with CGL cov-
erage and a competent crew, and that Dyn Marine had fraudulently
misrepresented its intentions during negotiations for the Agreement.
Because the Policy provides Seabulk with CGL coverage, requiring
the reversal of the summary judgment award to American Home, the
court had no need to reach and address Seabulk’s alternative conten-
tions. Consequently, we must vacate that portion of the court’s Janu-
ary Opinion awarding Dyn Marine summary judgment against
Seabulk and dismissing Dyn Marine’s cross-claim against American
Home.16
16
Under our decision today, Dyn Marine’s cross-claim against Ameri-
can Home and American Home’s motion for summary judgment against
Dyn Marine may be resurrected on remand for such proceedings, if any,
as may be consistent with our mandate.
24 SEABULK OFFSHORE v. AMERICAN HOME ASSURANCE
2.
We also vacate the July Opinion awarding Dyn Marine summary
judgment on its counterclaim against Seabulk. Significantly, when the
court considered the Dyn Marine counterclaim, it believed, contrary
to our conclusion today, that Seabulk was not entitled to CGL cover-
age under the Policy. For instance, in seeking summary judgment on
its counterclaim against Seabulk, Dyn Marine did not support its
motion solely by reference to the plain language of the Agreement.
Rather, it also relied on the January Opinion — the decision we have
now reversed — emphasizing that the district court had rejected Sea-
bulk’s position that the Policy covered the Texas Litigation and that
such coverage was primary to the P&I insurance required by the
Agreement. Dyn Marine’s Mem. Supp. Summ. J. at 4-5. Indeed, Sea-
bulk had maintained, in its motion for summary judgment of Decem-
ber 20, 2002, that the CGL and P&I insurance required by the
Agreement were interrelated, in that the CGL insurance was specifi-
cally intended to extend coverage to third parties, whereas the P&I
insurance was to provide coverage solely for the Dyn Marine crews.
Seabulk’s Mem. Supp. Summ. J. at 11, 15-16; see generally Sea-
bulk’s Mem. Opp. to Dyn Marine’s Mot. Summ. J. Because the court
may have considered Seabulk’s coverage under the Policy as relevant
to its determination that Seabulk is liable to Dyn Marine for damages,
we vacate the July Opinion and remand for the court to consider the
effect thereon, if any, of our decision today.17
IV.
Pursuant to the foregoing, we reverse the district court’s award of
summary judgment to American Home and direct the entry of judg-
ment in favor of Seabulk. We vacate the award of summary judgment
to Dyn Marine on the breach of contract and fraud claims asserted by
Seabulk; we vacate the award of summary judgment to Dyn Marine
17
Reconsideration of the issues concerning Dyn Marine’s counterclaim
is contingent, of course, upon whether Dyn Marine pursues that counter-
claim.
SEABULK OFFSHORE v. AMERICAN HOME ASSURANCE 25
on its counterclaim against Seabulk; and we remand for such further
proceedings as may be warranted.
REVERSED IN PART, VACATED IN PART,
AND REMANDED