UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1867
BUILDERS MUTUAL INSURANCE COMPANY,
Plaintiff – Appellant,
v.
ALI ERGUL; ARC CONSTRUCTION, LLC,
Defendants – Appellees,
and
ARC CONSTRUCTION, INC.,
Defendant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Anthony J. Trenga,
District Judge. (1:15-cv-00406-AJT-JFA)
Submitted: April 29, 2016 Decided: May 11, 2016
Before WILKINSON, MOTZ, and FLOYD, Circuit Judges
Affirmed by unpublished per curiam opinion.
Danny M. Howell, Michael T. Marr, Sarah A. Bucovetsky, SANDS
ANDERSON PC, McLean, Virginia, for Appellant. Joseph F.
Cunningham, Aaron J. Cheatham, CUNNINGHAM & ASSOCIATES, PLC,
Arlington, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Builders Mutual Insurance Company appeals the district
court’s order dismissing its complaint for a declaratory
judgment that it has no duty to defend the Appellees in an
underlying action related to construction work performed by the
Appellees under an insurance policy issued by Builders Mutual.
We review de novo a district court’s dismissal under Fed. R.
Civ. P. 12(b)(6), accepting factual allegations in the complaint
as true and drawing all reasonable inferences in favor of the
nonmoving party. Kensington Volunteer Fire Dep’t v. Montgomery
Cty., 684 F.3d 462, 467 (4th Cir. 2012). Under Virginia law,
“the duty of an insurer to defend an insured . . . is broader
than its obligation to pay or indemnify its insured.” Fuisz v.
Selective Ins. Co. of Am., 61 F.3d 238, 242 (4th Cir. 1995)
(internal quotation marks omitted). “Determination of whether
an insurer has a duty to defend requires examination of (1) the
policy language to ascertain the terms of the coverage and
(2) the underlying complaint to determine whether any claims
alleged therein are covered by the policy.” Id.
Courts must construe policy terms in favor of the insured.
Fuisz, 61 F.3d at 242. Therefore, “exclusions from coverage are
enforceable only when the exclusions unambiguously bring the
particular act or omission within its scope.” Fuisz, 61 F.3d at
242 (internal quotation marks omitted); see Copp v. Nationwide
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Mut. Ins. Co., 692 S.E.2d 220, 223 (Va. 2010) (“Language in a
policy purporting to exclude certain events from coverage will
be construed most strongly against the insurer.”). Therefore,
if a pleading sets forth any set of facts and circumstances
which, if proved, would fall within the risk covered by the
policy, the insurer has a duty to defend. Fuisz, 61 F.3d at 242
(“If a complaint, however ambiguous, may be read as premising
liability on alternative grounds, and either ground states
liability potentially or arguably covered by the policy, the
insured is entitled to a defense.”).
We have reviewed the record and found no reversible error. *
Accordingly, we affirm the district court’s order. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid in the decisional process.
AFFIRMED
* We note that the district court, as it stated in open
court, in determining that none of the challenged exclusions to
coverage applied, did not rule on the application of the
hazardous properties of lead exclusion or the total pollution
exclusion of the policy.
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