Sapa Extrusions Inc v. Liberty Mutual Insurance Co

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

No. 18-2206
____________

SAPA EXTRUSIONS, INC.
f/k/a ALCOA Extrusions, Inc.,
Appellant

v.

LIBERTY MUTUAL INSURANCE COMPANY;
NATIONAL UNION FIRE
INSURANCE COMPANY OF PITTSBURGH, PA;
GERLING KONZERN ALLEGEMEINE
VERSICHERUNGS-AG
a/k/a Gerling Konzern General Insurance Company;
PACIFIC EMPLOYERS
INSURANCE COMPANY; ACE AMERICAN
INSURANCE COMPANY;
ARCH SPECIALTY INSURANCE COMPANY f/k/a Rock
River Insurance Company;
GREAT AMERICAN ASSURANCE COMPANY;
INSURANCE COMPANY OF THE
STATE OF PENNSYLVANIA
____________

On Appeal from the United States District Court
for the Middle District of Pennsylvania
No. 3:13-cv-02827
District Judge: Hon. Malachy E. Mannion
____________

Argued: May 1, 2019

Before: RESTREPO, PORTER, and FISHER, Circuit Judges.

(Filed: September 13, 2019)
____________
James C. Martin [Argued]
REED SMITH LLP
Reed Smith Center
225 Fifth Avenue
Pittsburgh, PA 15222

Luke E. Debevec
Jenna Farr
REED SMITH LLP
Three Logan Square
1717 Arch Street, Suite 3100
Philadelphia, PA 19103

Michael Conley
Meghan K. Finnerty
OFFIT KURMAN
1801 Market Street, Suite 2300
Philadelphia, PA 19103

Counsel for Appellant Sapa
Extrusions, Inc.

Teresa Ficken Sachs [Argued]
William C. Foster
Audrey J. Copeland
MARSHALL DENNEHEY WARNER
COLEMAN & GOGGINS
2000 Market Street, Suite 2300
Philadelphia, PA 19103

Counsel for Appellee Liberty
Mutual Insurance Company

Phillip R. Earnest
Adam J. Tragone
PIETRAGALLO GORDON ALFANO
BOSICK & RASPANTI LLP
301 Grant Street
Pittsburgh, PA 15219

2
Agelo L. Reppas
Allyson C. Spacht
BATESCAREY LLP
191 North Wacker Drive, Suite 2400
Chicago, IL 60606

Counsel for Appellees National
Union Fire Insurance Company of
Pittsburgh, PA, and Insurance
Company of the State of Pennsylvania

Shane R. Heskin
WHITE AND WILLIAMS LLP
1650 Market Street
One Liberty Place, Suite 1800
Philadelphia, PA 19103

Counsel for Appellee Gerling
Konzern Allegemeine Versicherungs
AG, a/k/a Gerling Konzern General
Insurance Company

Stephen A. Cozen [Argued]
Deborah M. Minkoff
Stephen S. Kempa
COZEN O’CONNOR
1650 Market Street, Suite 2800
Philadelphia, PA 19103

Counsel for Appellees Pacific
Employers Insurance Company and
Ace American Insurance Company

Jonathan P. McHenry
Thomas M. Wester
CONNELL FOLEY LLP
56 Livingston Avenue
Roseland, NJ 07068

3
 Counsel for Appellee Arch
Specialty Insurance Company

Michael A. Kotula
Michael E. Buckley
RIVKIN RADLER LLP
926 RXR Plaza
Uniondale, NY 11556

Counsel for Appellee Great
American Assurance Company

John G. Koch
WEISBROD MATTEIS & COPLEY PLLC
Two Logan Square, Suite 1925
100 N. 18th Street
Philadelphia, PA 19103

Counsel for Amicus Curiae
United Policyholders

Maureen M. McBride
James C. Sargent
LAMB MCERLANE PC
24 East Market Street, Box 565
West Chester, PA 19381

Counsel for Amici Curiae
American Property Casualty Insurance
Association and Insurance Federation
of Pennsylvania

Louis C. Long
THOMAS, THOMAS & HAFER
525 William Penn Place, Suite 3750
Pittsburgh, PA 15219

Counsel for Amicus Curiae
Pennsylvania Defense Institute

4
Robert J. Cosgrove
WADE CLARK MULCAHY
1515 Market Street, Suite 2050
Philadelphia, PA 19102

Counsel for Amicus Curiae
Philadelphia Association of Defense
Counsel

____________

OPINION OF THE COURT
____________

PORTER, Circuit Judge.

This appeal asks whether, under Pennsylvania insurance
law, a manufacturer may recover from its liability insurers the
cost of settling a lawsuit alleging that the manufacturer’s
product was defective. Consistent with longstanding
precedent, we hold that recovery turns on the language of the
specific insurance policies at issue. We will thus affirm in part
and vacate in part the District Court’s judgment and remand
for further consideration consistent with this opinion.

I

A

Sapa Extrusions, Inc.1 manufactures aluminum
extruded profiles, which are formed by pushing a hot billet of
aluminum alloy through a metal die with a hydraulic press.
After forming, but before delivering, the extrusions, Sapa pre-

1
As reflected in the various insurance policies at issue,
Sapa has changed its corporate identity a few times over the
relevant years. For simplicity’s sake, we refer to Sapa and its
predecessors in interest—Alcoa Extrusions, Inc. and Alumax,
Inc.—and Sapa’s successor—Hydro Extrusions—as “Sapa.”
5
treats the metal and coats it with primer and topcoat. As Sapa
describes it, “[t]his pretreatment coating process is done in
multiple stages, involving cleaning and degreasing to remove
organic and inorganic materials, chemical etching, and finally
chemical coating to assist with paint adherence.” Appellant’s
Br. 11.

For decades, Sapa supplied “organically coated
extruded aluminum profiles” to Marvin Lumber and Cedar
Company and Marvin Windows of Tennessee, Inc. (together,
“Marvin”). App. 155–56. Marvin incorporated these
extrusions with other materials to “manufactur[e] aluminum
clad windows and doors and related products.” App. 156. This
process was permanent, so if an extrusion was defective for
some reason, it was not feasible to swap out only that extrusion.
Instead, the whole window or door would have to be replaced.
Between 2000 and 2010, Sapa sold about 28 million extrusions
to Marvin, which Marvin incorporated in about 8.5 million
windows and doors.

Sapa agreed to Marvin’s “Aluminum Extrusion Coating
Specification” in 1996. App. 157. This contract provided that
“the coating used on aluminum extrusions used on Marvin
window and door products shall meet or exceed all of the
requirements” of a relevant industry standard. Id. Sapa later
agreed to revisions of Marvin’s specification that incorporated
the updated industry standard.

Over the course of its relationship with Sapa, Marvin
sometimes received complaints from customers that the
aluminum parts of its windows and doors would oxidize or
corrode. At first, Sapa and Marvin worked together to
determine the nature of these complaints and how to fix them.
In the mid-2000s, however, there was an uptick in these
complaints, most of which came from people who lived within
a mile or so from the ocean.

In 2010, Marvin sued Sapa in the United States District
Court for the District of Minnesota (the “Underlying Action”),
alleging that Sapa had sold it extrusions that failed to meet
Marvin’s specifications. Marvin asserted claims for (1) breach
of contract, (2) breach of express warranty, (3) breach of
implied warranty of merchantability, (4) breach of implied
warranty of fitness for a particular purpose, (5) fraud, (6)
6
negligent misrepresentation, (7) unlawful trade practices, (8)
consumer fraud, (9) fraudulent concealment, and (10)
contribution/indemnity.

Here are the relevant allegations in the Marvin
Complaint.

• Sapa made specific warranties to Marvin about its
extrusions, including that they would “meet the
applicable [industry] specifications for superior
performing organic coatings on aluminum extrusions.”
App. 157.

• Sapa “changed its processes, procedures, and materials
for the pretreatment of organically coated extruded
aluminum profiles without notifying Marvin of this
significant and material change.” App. 158.

• Sapa assured Marvin that the changes to the pre-
treatment process would not affect the quality of the
extrusions, even though Sapa knew (and intentionally
concealed from Marvin) that the extrusions did not meet
Marvin’s specifications. Sapa “represented to Marvin
that it would fully stand behind its organically coated
extruded aluminum profiles if they failed to perform or
were otherwise defective.” App. 161.

• Marvin’s products that incorporated Sapa’s extrusions
“prematurely failed in coastal installations in the field at
an abnormal rate.” App. 161. In particular, surface
finishes were “peeling, losing adhesion, or otherwise
degrading in a manner which far exceed[ed] the
minimal corrosion occasionally experienced on
aluminum clad windows and doors installed near the
coast.” Id.

• Marvin “expended in excess of $75,000 in repairing
and/or replacing Sapa’s organically coated extruded
aluminum profiles [that] experienced surface cracking,
checking, peeling and/or loss of adhesion in
installations in the field.” App. 162.

7
 Marvin sought monetary damages for “economic losses
stemming from ‘investigating and responding to’ consumer
complaints, ‘identifying and qualifying alternative’ extrusion
suppliers, ‘repairing’ and ‘replacing’ the failed extrusions,
rebuilding its ‘valuable reputation,’ and experiencing lost
‘sales and profits.’” App. 10.

Marvin and Sapa engaged in nearly three years of
discovery. They then cross-moved for summary judgment.
Among other things, the Minnesota district court held that:

• Genuine disputes of material facts precluded summary
judgment on whether (1) Sapa provided Marvin with an
express performance warranty, (2) Sapa’s terms and
conditions applied to the parties’ extrusion deals, and
(3) Sapa breached its contract with Marvin for the
extrusions that Marvin had not yet incorporated into its
products. Marvin Lumber & Cedar Co. v. Sapa
Extrusions, Inc., 964 F. Supp. 2d 993, 998–1003 (D.
Minn. 2013).

• Marvin’s choice to provide Sapa with detailed
specifications for the extrusions precluded Marvin’s
claim for breach of implied warranties. Id. at 1005–06.
(“Marvin may pursue a breach of warranty for Sapa’s
alleged failure to meet its specifications, but its decision
to provide those specifications precludes any implied
warranties that might have otherwise arisen between the
parties.”).

• Marvin’s claim for negligent misrepresentation failed
because, under Minnesota’s “independent duty rule,”
“Sapa owed Marvin no extra-contractual duty of care.”
Id. at 1006.

• Under Minnesota’s economic-loss rule, Marvin could
not assert tort claims for any of Sapa’s alleged
misrepresentations “based on conduct that would
constitute a breach of contract.” Id. at 1008 (“[A]ny tort
claim premised on Sapa’s failure to conform to
[Marvin’s] specifications is premised on a breach of
contract (or rather, breach of warranty) and barred under
Minnesota law.”).

8
 On the eve of trial in 2013, Sapa and Marvin settled their
dispute for a large sum.

B

Throughout the period implicated by Marvin’s
allegations, Sapa maintained twenty-eight commercial general
liability (CGL) insurance policies through eight insurance
carriers (together, the “Insurers”).2 Combined, these policies
supposedly blanketed the relevant period with liability
coverage. Each policy required an “occurrence”—a term
specifically defined in each policy—to trigger coverage.

Sapa tendered Marvin’s claims to another carrier,
Zurich American Insurance Company, which accepted the
defense under a reservation of rights. But the Insurers
disclaimed coverage. So Sapa sued them all in late 2013,
asserting breach of contract under the twenty-eight policies and
seeking a declaratory judgment to recover the cost of the
underlying settlement. The parties engaged in extensive
discovery before each moved for summary judgment.

The District Court first held that, to determine whether
coverage existed under any of the policies for Marvin’s claims
and the resultant settlement, it could rely only on how Marvin
had framed its claims in its underlying complaint. The District
Court thus did not rely on any evidence uncovered in the three
years of discovery in the Underlying Action. On the merits, the
District Court analyzed coverage under all twenty-eight
policies as a group. Agreeing with the Insurers, the Court held
that Marvin’s claims in the Underlying Action were not an

2
Sapa had primary CGL policies through Liberty
Mutual Insurance Company (“Liberty Mutual”), Pacific
Employers Insurance Company (“Pacific”), and Ace American
Insurance Company (“Ace”). Sapa also had umbrella and
excess policies through National Union Fire Insurance
Company of Pittsburgh, PA (“National Union”), Insurance
Company of the State of Pennsylvania (“ICSOP”), Gerling-
Konzern General Insurance Company (“Gerling”), Arch
Specialty Insurance Company (“Arch”), and Great American
Assurance Company (“Great American”).
9
“occurrence” that triggered coverage under any of the policies.
The District Court also rejected Sapa’s ancillary arguments on
other coverage-triggering theories. In sum, the District Court
held that the Insurers did not have to indemnify Sapa, thereby
forcing Sapa to bear the full settlement and defense costs itself.
Sapa timely appealed.

II

The District Court had subject matter jurisdiction under
28 U.S.C. § 1332(a)(1). We have appellate jurisdiction under
28 U.S.C. § 1291. We review the District Court’s grant of
summary judgment de novo. Specialty Surfaces Int’l, Inc. v.
Cont’l Cas. Co., 609 F.3d 223, 229 n.1 (3d Cir. 2010). And we
apply the same standards and presumptions as the District
Court. Gardner v. State Farm Fire & Cas. Co., 544 F.3d 553,
557 (3d Cir. 2008).

III

The ultimate issue here is whether any of the Insurers
must indemnify Sapa under their respective policies for Sapa’s
settlement with Marvin. That final coverage determination will
require us to interpret and apply the plain language of the
policies under Pennsylvania law. But first, we must decide
what facts we may consider in conducting that analysis.

The parties dispute the proper scope of our review. Sapa
says that we should examine any facts that Sapa or Marvin
knew when they agreed to settle. The Insurers respond that we
may consider only the averments in the Marvin Complaint. We
think the Insurers’ position is better grounded in Pennsylvania
law and we see no reason to depart from that precedent here.

A

Three points anchor our analysis.

First, a liability insurer’s duty to defend an insured and
its duty to indemnify are distinct, though related obligations.
See Kvaerner U.S., Inc. v. Commercial Union Ins. Co., 908
A.2d 888, 896 n.7 (Pa. 2006). Both are creations of contract.
See Donegal Mut. Ins. Co. v. Baumhammers, 938 A.2d 286,

10
290–91 (Pa. 2007); Genaeya Corp. v. Harco Nat. Ins. Co., 991
A.2d 342, 347 (Pa. Super. Ct. 2010).

Second, in the context of a declaratory judgment action
to determine an insurer’s obligations, Pennsylvania courts
consistently apply what is known as the “four-corners rule.”
See Lupu v. Loan City LLC, 903 F.3d 382, 389–90 (3d Cir.
2018) (collecting cases). That is, when a policyholder is sued,
“an insurer’s duty to defend is triggered, if at all, by the factual
averments contained in [the underlying] complaint[.]”
Kvaerner, 908 A.2d at 896; Am. & Foreign Ins. Co. v. Jerry’s
Sport Ctr., Inc., 2 A.3d 526, 541 (Pa. 2010); Mut. Ben. Ins. Co.
v. Haver, 725 A.2d 743, 745–46 (Pa. 1999) (“A carrier’s duties
to defend and indemnify an insured in a suit brought by a third
party depend upon a determination of whether the third party’s
complaint triggers coverage.”); Ramara, Inc. v. Westfield Ins.
Co., 814 F.3d 660, 673 (3d Cir. 2016). And “[i]f the allegations
of the underlying complaint potentially could support recovery
under the policy, there will be coverage at least to the extent
that the insurer has a duty to defend its insured in the case.”
Ramara, 814 F.3d at 673; see Jerry’s Sport Ctr., 2 A.3d at 541.
If triggered, the duty to defend also carries “a conditional
obligation to indemnify in the event the insured is held liable
for a claim covered by the policy.” Gen. Accident Ins. Co. of
Am. v. Allen, 692 A.2d 1089, 1095 (Pa. 1997). Both duties are
at issue until the underlying “claim is confined to a recovery
that the policy does not cover.” Id.

Third, because the duty to defend is “broader” than the
duty to indemnify, if a court determines that the former does
not exist, neither does the latter. See Kvaerner, 908 A.2d at 896
n.7; Ramara, 814 F.3d at 673.

B

Sapa argues two points in response that, it says, make
the four-corners rule inappropriate here. We find neither
persuasive.

First, Sapa points to language from State Farm Fire &
Cas. Co. v. DeCoster, 67 A.3d 40 (Pa. Super. Ct. 2013), which
supposedly shows that the four-corners rule does not apply
when determining an insurer’s duty to indemnify. There, the
court distinguished the duty to defend and the duty to
11
indemnify, explaining that the former is broader and “arises
whenever the complaint filed by the injured party may
potentially come within the coverage of the policy.” Id. at 45
(citation omitted). The duty to indemnify, by contrast, “is not
necessarily limited to the factual allegations of the underlying
complaint. Rather, there must be a determination that the
insurer’s policy actually covers a claimed incident.” Id. at 46
(internal quotation marks and citation omitted). Sapa takes this
to mean that it may rely on facts outside the Marvin Complaint
to prove that coverage exists.

But DeCoster simply rephrases the principles outlined
above. The duty to defend is “broader” than the duty to
indemnify, so an insurer must defend an insured against
allegations that are even “potentially within the scope of the
policy”—including those that are “groundless, false, or
fraudulent.” Jerry’s Sport Ctr., 2 A.3d at 541 (internal
quotation marks and citations omitted and emphasis added). To
offset this initial burden, “[a]n insurer may rely on evidence
outside of the complaint to ultimately prove it has no duty to
indemnify.” DeCoster, 67 A.3d at 46 (emphasis added).
Pennsylvania law thus creates a ratchet of sorts between the
two duties. The initial allegations in the underlying complaint
that may trigger the insurer’s duty to defend must eventually
mature into provable facts to spark a duty to indemnify. See id.
at 49.

But this ratchet works in only one direction. Sapa points
to no case holding that, when an underlying complaint never
triggered a duty to defend, an insured may rely on facts outside
the complaint to show that coverage exists. Indeed, were that
the case, “an insurer would be required to monitor the pre-trial
developments of a case in which coverage was denied to
[e]nsure that no discovery sheds light upon a possible claim for
which a defense is mandated.” Scopel v. Donegal Mut. Ins. Co.,
698 A.2d 602, 606 (Pa. Super. Ct. 1997). Sapa’s reliance on
DeCoster is thus misplaced.3

3
We also note that Sapa’s argument to avoid the four-
corners rule also raises a question it cannot answer: what
outside-the-Marvin Complaint “facts” should we credit? The
discovery in both the underlying litigation and the coverage
12
 Second, Sapa says that applying the four-corners rule
would be misguided here because we ought to focus on the
parties’ knowledge at the time of the settlement. Sapa likens
this case to Babcock & Wilcox Co. v. Am. Nuclear Insurers,
131 A.3d 445 (Pa. 2015), and Alfiero v. Berks Mutual Leasing
Co., 500 A.2d 169 (Pa. Super. 1985). In both cases, the insurers
had not fully accepted coverage of the underlying disputes
(either by outright, bad-faith rejection or under a reservation of
rights), and the insureds, when presented with reasonable

litigation was extensive—as shown by the mountain of
appendices that the parties unhelpfully submitted. And that
voluminous discovery apparently turned up “facts” supporting
both sides. Indeed, the Minnesota District Court denied
summary judgment on many of Marvin’s central claims
primarily because the two-and-a-half years of discovery at that
point had produced countervailing narratives and the parties
could not agree on what had happened.

In Pacific Indemnity Company v. Linn, the court
explained that its decision on the insurers’ duty to indemnify,
which might normally encompass facts outside of the
complaint, was muddled by the parties’ settlement of the
underlying action. See 590 F. Supp. 643, 650 (E.D. Pa. 1984).
In other words, “because those cases implicating the duty to
indemnify were terminated by settlement rather than final
judgment, it is now impossible to determine on what theories
of liability, if any, the underlying plaintiffs would have
prevailed.” Id. So because there were “no factual findings to
consider in determining which insurers [were] obligated to
indemnify Dr. Linn,” “the duty to indemnify must follow the
duty to defend.” Id. We affirmed. See Pacific Indem. Co. v.
Linn, 766 F.2d 754, 766 (3d Cir. 1985).

So too here. We have little to no fact-finding from the
Underlying Action on which we could base a nuanced
coverage determination because the parties settled that case
before it went to trial. So Sapa’s scope theory would effectively
force it and the Insurers to try the Underlying Action before
then trying the coverage case, all without the participation of a
principal party-in-interest in the Underlying Action—Marvin.
As we have explained, Pennsylvania law does not allow for this
possibility.
13
settlement options, settled without consent from their insurers.
Babcock, 131 A.3d at 448; Alfiero, 500 A.2d at 171. The
Alfiero court held that, because the insurer had denied coverage
in bad faith and because the underlying settlement was
reasonable, the insurer was on the hook for the remaining value
of the settlement. See 500 A.2d at 172. The Babcock court held
that an insurer defending under a reservation of rights that
refused consent to settle may be liable to the insured for the
value of a settlement that is “fair and reasonable from the
perspective of a reasonably prudent person in the same position
[as they insured] and in light of the totality of the
circumstances.” 131 A.3d at 463.

But here, none of the Insurers had accepted any
obligations under the policies at the time of settlement. And the
record nowhere suggests (nor does Sapa argue) that any of the
Insurers’ denials of coverage were in bad faith. So Babcock and
Alfiero are inapt.

C

We will apply the four-corners rule here, mindful that
Pennsylvania courts have consistently declined to expand it.
See Lupu, 903 F.3d at 391 (“Pennsylvania courts have
identified no exception to the [four-corners rule].” (internal
quotation marks and citation omitted)). This was reemphasized
by the Pennsylvania Supreme Court in Kvaerner:

The Superior Court … [erred by]
depart[ing] from the well-
established precedent of this Court
requiring that an insurer’s duty to
defend and indemnify be
determined solely from the
language of the complaint against
the insured. We find no reason to
expand upon the well-reasoned
and long-standing rule that an
insurer’s duty to defend is
triggered, if at all, by the factual
averments contained in the
complaint itself.

14
Kvaerner, 908 A.2d at 896 (citations omitted). And
Pennsylvania courts have applied the four-corners rule
consistently since. See, e.g., Kiely ex rel. Feinstein v. Phila.
Contributionship Ins. Co., 206 A.3d 1140, 1146 (Pa. Super. Ct.
2019) (“The question of whether a claim against an insured is
potentially covered is answered by comparing the four corners
of the insurance contract to the four corners of the complaint.
We do not consider extrinsic evidence.” (internal quotation
marks and citations omitted)); Burchick Constr. Co., Inc. v.
Harleysville Preferred Ins. Co., No. 1051 WDA 2012, 2014
WL 10965436, at *8 (Pa. Super. Ct. Mar. 10, 2014).

In short, Pennsylvania courts have unambiguously
adopted and consistently enforced the four-corners rule. And
although this bright-line standard may “leave[] would-be
insureds in the lurch if a covered claim is not identifiable in the
complaint,” Pennsylvania courts have allowed for this
possibility “in exchange for a clear rule’s benefit.” Lupu, 903
F.3d at 392. Since our mandate here is to apply Pennsylvania
law, we will again “honor [the Pennsylvania Supreme Court’s]
decision to maintain a simple, bright-line rule.” Id. at 391. So
we will confine our review to only the alleged facts in the
Marvin Complaint.

IV

Having established the limited scope of our review, we
now turn to the merits of the parties’ coverage dispute. Our
analysis proceeds in three steps. First, we examine “the terms
of the polic[ies,] which are … manifestation[s] of the ‘intent of
the parties.’” Nationwide Mut. Ins. Co. v. CPB Int’l, Inc., 562
F.3d 591, 595 (3d Cir. 2009) (quoting Baumhammers, 938
A.2d at 290).4 Second, we assess relevant precedent
interpreting the operative policy terms. Finally, as necessary,
we “compare the terms of the polic[ies] to the allegations in the
[Marvin Complaint],” id. at 595–96 (citing Kvaerner, 908 A.3d
at 896), determining whether Marvin’s factual allegations

4
Under Pennsylvania law, we review the plain language
of a policy to determine its meaning. Baumhammers, 938 A.2d
at 290. If the text is clear, we enforce it as written. Id. If the
language is ambiguous, we construe it in favor of the insured.
Id.

15
trigger the policies’ provisions of coverage, see Haver, 725
A.2d at 745–46.

We also note at the outset that the District Court erred
by considering only the headings of the counts in the Marvin
Complaint. For example, the District Court facially rejected
Sapa’s coverage assertion based on Marvin’s breach-of-
contract and breach-of-warranty claims without reviewing
their underlying factual bases. Pennsylvania law is clear that
facts matter more than labels: “the particular cause of action
that a complainant pleads is not determinative of whether
coverage has been triggered[;] [i]nstead it is necessary to look
at the factual allegations contained in the complaint.” Haver,
725 A.2d at 745. So our coverage analysis below considers the
facts alleged in the Marvin Complaint, no matter how those
facts are arranged to support individual counts.

A

We start with the language of the policies. Sapa asserts
coverage under twenty-eight different liability policies issued
by the eight Insurers. In general, each policy requires its
respective insurer to reimburse Sapa for “sums that [Sapa]
becomes legally obligated to pay as damages because of …
‘property damage’ … caused by an ‘occurrence[.]’” E.g., App.
4884 (emphasis added).

The policies variously define “occurrence.” These
definitions fit into three categories, which we have named to
help keep them straight.

• The “Accident Definition.” Nineteen policies—in
general, the ACE policies and those that follow form to
them—define “occurrence” as “an accident, including
continuous or repeated exposure to substantially the
same general harmful conditions.” E.g., App. 5358.

• The “Expected/Intended Definition.” Seven
policies—the National Union policies and those that
follow form to them—define “occurrence” as “an
accident, including continuous or repeated exposure to
conditions, which results in Bodily Injury or Property

16
 Damage neither expected nor intended from the
standpoint of the Insured.” E.g., App. 930.

• The “Injurious Exposure Definition.” Two policies—
the Liberty Mutual policies—define “occurrence” as
“injurious exposure, including continuous or repeated
exposure, to conditions, which results, during the policy
period, in personal injury or property damage … neither
expected or intended from the standpoint of the
insured.” E.g., App. 4263.

B

We are also mindful that Pennsylvania courts (and
federal courts applying Pennsylvania law) have said what
“occurrence” means. Three cases most inform our analysis.5
We will summarize them briefly.

1. Kvaerner Metals Div. of Kvaerner U.S., Inc. v.
Commercial Union Ins. Co., 908 A.2d 888 (Pa.
2006).

Bethlehem Steel hired Kvaerner Metals to construct a
coke oven battery. Id. at 891. Bethlehem later discovered
problems with the battery and sued Kvaerner for breach of
contract. Id. Kvaerner notified its insurer, National Union,
seeking defense and indemnity under two occurrence-based
CGL insurance policies. Id. at 891–92. But National Union
disclaimed coverage, so Kvaerner sued for a declaratory
judgment. Id. at 892. The policies at issue contained the
Accident Definition of “occurrence.” Id. at 897.

5
Since we are interpreting and applying Pennsylvania
law, our analysis is controlled by the Pennsylvania Supreme
Court’s decisions and precedential opinions from this Court.
See Spence v. ESAB Grp., Inc., 623 F.3d 212, 216 (3d Cir.
2010) (“When ascertaining Pennsylvania law, the decisions of
the Pennsylvania Supreme Court are the authoritative
source.”); Smith v. Calgon Carbon Corp., 917 F.2d 1338, 1343
(3d Cir. 1990). Decisions from Pennsylvania’s intermediate
appellate courts may be persuasive. See State Farm Fire &
Cas. Co. v. Estate of Mehlman, 589 F.3d 105, 108 (3d Cir.
2009).
17
 The Pennsylvania Supreme Court reasoned that, under
the policies’ plain language, an “occurrence … is an accident.”
Id. And because the policies did not define “accident,” the
court consulted a dictionary: “‘[a]n unexpected and
undesirable event,’ or ‘something that occurs unexpectedly or
unintentionally.’” Id. at 897–98 (quoting Webster’s II New
College Dictionary 6 (2001)). The court noted that “[t]he key
term in the ordinary definition of ‘accident’ is ‘unexpected,’”
which “implies a degree of fortuity that is not present in a claim
for faulty workmanship.” Id. So “provisions of a general
liability policy provide coverage if the insured work or product
actively malfunctions, causing injury to an individual or
damage to another’s property.” Id. at 898 (quoting Snyder
Heating v. Pa. Mfrs.’ Ass’n Ins. Co., 715 A.2d 483, 487 (Pa.
Super. 1998) (original alterations and internal quotation marks
omitted)). But “[c]ontractual claims of poor workmanship d[o]
not constitute the active malfunction needed to establish
coverage under the policy.” Id. (“[T]he fortuity implied by
reference to accident or exposure is not what is commonly
meant by a failure of workmanship.” (quoting McAllister v.
Peerless Ins. Co., 474 A.2d 1033, 1036 (N.H. 1984) (internal
quotation marks omitted))).

On top of this fortuity analysis, the Pennsylvania
Supreme Court examined whether any harm befell third-party
property. See id. at 898–99 (“[A] CGL policy may provide
coverage where faulty workmanship caused bodily injury or
damage to another property, but not in cases where faulty
workmanship damages the work product alone.” (citing L–J,
Inc. v. Bituminous Fire & Marine Ins. Co., 621 S.E. 2d 33, 36
n.4 (S.C. 2005))). The court was concerned that allowing
manufacturers to recover for shoddy workmanship “would
convert CGL policies into performance bonds, which
guarantee the work, rather than like an insurance policy, which
is intended to insure against accidents.” Id. at 899.

Applying these principles, the court held that, because
Bethlehem had alleged “only property damage from poor
workmanship to the work product itself,” Kvaerner’s “faulty
workmanship [did] not constitute an ‘accident’ as required to
set forth an occurrence under the CGL policies.” Id. at 900. So
“National Union had no duty to defend or indemnify Kvaerner
in the action brought by Bethlehem.” Id.

18
 2. Nationwide Mut. Ins. Co. v. CPB Int’l, Inc., 562
F.3d 591 (3d Cir. 2009).

CPB was “an importer and wholesaler of chondroitin, a
nutritional supplement made from animal cartilage.” Id. at 593.
CPB contracted with Rexall, a nutrition tablet manufacturer, to
deliver thousands of pounds of chondroitin, which Rexall
would combine with other substances to create marketable
tablets for consumers. Id. at 594. Rexall sued CPB, alleging
that CPB had delivered defective chondroitin. Id. And
unfortunately for Rexall, it had not discovered the problem
until after it had incorporated the chondroitin with other
substances to make the tablets, so Rexall was stuck with nearly
a million dollars of worthless product. Id.

CPB tendered the claim to its insurer, Nationwide,
seeking defense and indemnity under an occurrence-based
CGL policy. Id. The policy contained the Accident Definition
of “occurrence.” Id. Nationwide at first accepted the defense,
but later sued for a declaratory judgment to avoid coverage. Id.
at 595.

On appeal, we noted two mistaken theories of coverage.
First, we explained that, under Kvaerner’s logic, “Rexall’s
claim that [CPB] provided defective chondroitin, without
more, would not trigger coverage.” Id. at 596. Rexall’s
allegations of “faulty workmanship” were “not covered by the
policy, although the workmanship involved [was] a failure to
perform quality control as to the product to be delivered rather
than a failure to build a coke oven to the proper specifications.”
Id. (citing Kvaerner, 908 A.2d at 899).

Second, we explained that Rexall’s claim for
consequential damages did not change our analysis. Id.
Kvaerner’s logic, we noted, is not limited to situations in which
only “the work product itself” is damaged. Id. On the contrary,
“claims for faulty workmanship”—in other words, the failure
to provide a product as agreed—are “too foreseeable to be
considered an accident,” even if a faulty product damages
property other than itself. Id. Because it was “certainly
foreseeable that the product CPB sold would be used for the
purpose for which it was sold,” we held that the “degree of

19
fortuity” was no different from that involved in Kvaerner.
Id. at 597 (quoting Kvaerner, 908 A.2d at 898).6

So Rexall’s claims were not an “occurrence,” and there
was no coverage.

3. Specialty Surfaces Int’l, Inc. v. Continental Cas.
Co., 609 F.3d 223 (3d Cir. 2010).

Sprinturf, a manufacturer of synthetic turf, was hired as
a subcontractor to construct football fields for Shasta Union
High School District. Id. at 227. A different contractor
prepared the base for each field and Sprinturf installed the turf
and a third-party drainage system. Id. Shasta sued Sprinturf for
breach of warranty, alleging that the drainage systems in the
fields had been defectively constructed and installed. Id. at
227–28. Because of the resultant water damage, Shasta
asserted, the fields were unstable and the subgrade was ruined.
Id. at 228. Shasta later amended the complaint to add breach-
of-contract and negligence claims. Id.

Sprinturf tendered the claim to its insurer, Continental,
requesting coverage under an occurrence-based CGL policy
that contained the Accident Definition of “occurrence.” Id. at
227–28. Continental first disclaimed coverage, but then agreed
to defend Sprinturf when Shasta added the negligence claim in
the amended complaint. Id. 228–29. Sprinturf eventually sued
for a declaratory judgment that Continental had to defend and
indemnify on all claims. Id. at 229.

On appeal, we relied on Kvaerner and CPB in
concluding that, under Pennsylvania law, “[i]n order for a
claim to trigger coverage, there must be a causal nexus between

6
We also noted that the Pennsylvania Superior Court
had slightly extended Kvaerner’s logic in Millers Capital Ins.
Co. v. Gambone Bros. Dev. Co., 941 A.2d 706 (Pa. Super. Ct.
2008). There, the court reasoned that “natural and foreseeable
acts ... which tend to exacerbate the damage, effect, or
consequences caused ab initio by faulty workmanship also
cannot be considered sufficiently fortuitous to constitute an
‘occurrence’ or ‘accident’ for the purposes of an occurrence
based CGL policy.” CPB, 562 F.3d at 597 (quoting Gambone,
941 A.2d at 713).
20
the property damage and an ‘occurrence,’ i.e., a fortuitous
event.” Id. at 231. We also declared that “[f]aulty
workmanship, even when cast as a negligence claim, does not
constitute such an event; nor do natural and foreseeable events
like rainfall.” Id. (emphasis added).

Applying these principles, we held that Continental was
not bound to defend or indemnify Sprinturf for Shasta’s
original complaint because Shasta had asserted only a breach-
of-contract claim. Id. at 238. As for Shasta’s amended
complaint, we held that adding the negligence claim made no
difference. Id. at 238–39. In short, we reasoned that the alleged
damage to the subgrade (not installed by Sprinturf) did not
amount to an “occurrence” because it was “foreseeable.” Id. at
239 (citing Millers Capital Ins. Co. v. Gambone Bros. Dev.
Co., 941 A.2d 706, 713 (Pa. Super. Ct. 2008)).

C

Because of the controlling precedent on what amounts
to an “occurrence” under Pennsylvania law, our coverage
analysis is straightforward. Our job is to “give effect” to the
clear terms of the policies, so we will divide up the policies by
the three definitions of “occurrence” and analyze them
separately. See Baumhammers, 938 A.2d at 290 (quoting
Kvaerner, 908 A.2d at 897).

1

Nineteen policies contain the Accident Definition of
“occurrence”—the same definition that the Pennsylvania
Supreme Court interpreted in Kvaerner and that we interpreted
in CPB and Specialty Surfaces. See Kvaerner, 908 A.2d at 897;
CPB, 562 F.3d at 594; Specialty Surfaces, 609 F.3d at 227. For
these policies, we hold that the factual allegations in the
Marvin Complaint do not amount to an “occurrence” that could
trigger coverage.

At bottom, the Marvin Complaint alleged faulty
workmanship. The core of Marvin’s suit was that “[s]ome of
the organically coated extruded aluminum profiles purchased
by Marvin from Sapa did not perform as intended, represented,
and agreed.” App. 161. For example, “the surface finish of
some of Marvin’s windows and doors made with Sapa’s

21
organically coated extruded aluminum profiles has
prematurely failed in coastal installations in the field at an
abnormal rate.” App. 161. And as a result, Marvin asserted, it
had racked up significant costs “in repairing and/or replacing
Sapa’s [products] which have experienced surface cracking,
checking, peeling and/or loss of adhesion in installations in the
field.” App. 162.

Marvin’s allegations do not amount to an
“occurrence”—that is, an unforeseeable, “fortuitous event.”
Specialty Surfaces, 609 F.3d at 231; Kvaerner, 908 A.2d at
897–98. On this point, Kvaerner directly informs our analysis,
even though “the workmanship involved here is a failure to
perform quality control as to the product to be delivered rather
than a failure to build a coke oven to the proper specifications.”
CPB, 562 F.3d at 596 (citing Kvaerner, 908 A.2d at 899). Put
simply, it was “largely within [Sapa’s] control whether it
supplie[d] the agreed-upon product,” so any liability flowing
from Sapa’s failure to deliver a product that met the agreed
specifications was “too foreseeable to be considered an
accident.” Id.

Sapa protests this analysis, asserting that third-party
property damage triggers coverage. But CPB and Specialty
Surfaces both hold that any distinction between damage to the
work product alone versus damage to other property is
irrelevant so long as both foreseeably flow from faulty
workmanship. See CPB, 562 F.3d at 597; Specialty Surfaces,
609 F.3d at 238–39. Sapa’s briefing is silent on these cases.
The bottom line is this: it was “certainly foreseeable that the
product [Sapa] sold would be used for the purpose for which it
was sold.” CPB, 562 F.3d at 597. Marvin integrated Sapa’s
extrusions with its own products, and the eventual damage thus
foreseeably exceeded the value of the extrusions themselves.
We explained in CPB that “foreseeable acts which tend to
exacerbate the damage, effect, or consequences caused ab
initio by faulty workmanship also cannot be considered
sufficiently fortuitous to constitute an ‘occurrence’ or

22
‘accident’ for the purposes of an occurrence-based CGL
policy.” 562 F.3d at 597 (citation omitted).7

Sapa also relies on Sunbeam Corp. v. Liberty Mut. Ins.
Co., 781 A.2d 1189 (Pa. 2001), to argue that the District Court
erred by not considering anecdotes of Sapa’s interactions with
some of the Insurers “in deciding the coverage issues.”
Appellant’s Br. 46. We disagree. In general, Sunbeam says that
“custom in the industry or usage in the trade” is relevant to
explain the “special meaning or usage in a particular industry”
of certain policy language. See id. at 500–01. For example,
Sunbeam focused on specific wording that had “a peculiar
usage in the insurance industry … that [was] different from the
common usage of the terms.” Id. at 502. But here, Sapa
nowhere argues or offers any evidence that the insurance
industry has a unique concept of what an “occurrence” is aside
from how that term is defined in the policies and under
controlling precedent.

To be sure, we interpret a policy’s text “in light of …
the performance of the parties under the contract.”
AstenJohnson, Inc. v. Columbia Cas. Co., 562 F.3d 213, 220
(3d Cir. 2009). Yet admissible course-of-performance
evidence differs from inadmissible parol evidence: the former
shows how the parties behave “under the contract”; the latter
shows the “parties’ pre-contract negotiations.” Id. And the rule
against parol evidence is firm. See Resolution Trust Corp. v.

7
Sapa’s reliance on Pittsburgh Plate Glass Co. v.
Fidelity & Cas. Co. of N.Y., 281 F.2d 538 (3d Cir. 1960), is
misplaced. There, PPG sold paint to Columbia Air-O-Blind
Co., which used the paint to coat its manufactured metal
jalousies (outside venetian blinds). Id. at 539. Some of the paint
was defective and flaked off the metal. Id. Columbia sued PPG,
which tendered the claim to its insurer, Fidelity. Id. Fidelity
refused to accept coverage, asserting that the alleged damage
was not “physical injury” under PPG’s liability policies. Id. at
540. We held that Fidelity had to provide coverage because
once the paint was baked onto the metal, the paint became “part
of the finished product.” Id. at 541. Our decision in no part
hinged on whether the underlying alleged damage was
“fortuitous,” as Kvaerner clarified the legal standard nearly
fifty years later.
23
Urban Redev. Auth. of Pittsburgh, 638 A.2d 972, 975 (Pa.
1994). Sapa points to some parties’ statements and actions
related to Sapa’s applications for CGL insurance. Appellant’s
Br. 47–50. This is pre-contractual parol evidence (albeit
masquerading as a “course of performance”), and thus
irrelevant to explain the written terms of the policies. See
Resolution Trust, 638 A.2d at 975–76. Sapa also relies on some
purported post-contractual data—for example, the supposed
reasoning for certain premiums. Appellant’s Br. 48. But, even
assuming this would be admissible, none of Sapa’s evidence
can contradict the “unambiguous” Accident Definition of
“occurrence” explained above. See Gambone, 941 A.2d at 711,
717.8 Otherwise, parties could circumvent controlling
precedent simply by acting as though it did not apply.

In sum, the factual allegations in the Marvin Complaint
do not amount to an “occurrence” as that term is defined in the
policies containing the Accident Definition. We will therefore
affirm the District Court’s judgment as it relates to these
policies.

2

Seven policies contain the Expected/Intended
Definition of “occurrence”—generally the National Union
policies and those that follow form to them. Given this unique
definitional language, we hold that the District Court should
have considered these policies separately. We will vacate the
District Court’s decision as it relates to these policies and
remand for further consideration.

As noted above, the primary difference between the
Accident Definition and the Expected/Intended Definition is
that the latter narrows the general category of “accident” by
including only conditions that are “neither expected nor
intended from the standpoint of the Insured.” E.g., App. 930.
We will call this the “Insured’s Intent Clause.” The question is

8
Charitably construed, Sapa’s evidence shows only that
the parties thought coverage would exist for some products-
liability claims. Nobody disputes this. Everybody agrees that
coverage would exist if conditions amounted to an
“occurrence.” The parties simply dispute what that term
means, and Sapa’s evidence sheds no light on that question.
24
whether the Insured’s Intent Clause materially distinguishes
these seven policies from the nineteen we analyzed above. We
think it does.

First, we interpret insurance policies like other
contracts—we “ascertain the intent of the parties as manifested
by the [written] terms.” Baumhammers, 938 A.2d at 290; see
Madison Const. Co. v. Harleysville Mut. Ins. Co., 735 A.2d
100, 108 (Pa. 1999) (“Words of common usage in an insurance
policy are to be construed in their natural, plain, and ordinary
sense.” (citation omitted)). So we must take care not to “violate
the cardinal principle of interpretation that an insurance policy
must be construed in such a manner as to give effect to all of
its provisions.” Mut. of Omaha Ins. Co. v. Bosses, 237 A.2d
218, 220 (Pa. 1968); see 401 Fourth St., Inc. v. Investors Ins.
Grp., 879 A.2d 166, 171 (Pa. 2005).

With this in mind, we decline to interpret the Insured’s
Intent Clause as mere surplusage. If we held that the Accident
Definition and the Expected/Intended Definition were
synonymous, the Insured’s Intent Clause in the latter would
have no additional effect, thereby erasing it from seven
policies.

Second, the Pennsylvania Superior Court has held that
a liability policy containing the Expected/Intended Definition
of occurrence was triggered when the underlying complaint
asserted damages “arguably not expected” by the policyholder.
Indalex Inc. v. National Union Fire Ins. Co. of Pittsburgh, 83
A.3d 418, 425 (Pa. Super. Ct. 2013). Indeed, the court
explained that the definition of “occurrence” at issue there (the
Expected/Intended Definition) diverged from the definition at
issue in Kvaerner (the Accident Definition) by including
“subjective language”—i.e., the Insured’s Intent Clause. See
id. at 424–25.9

9
The Pennsylvania Superior Court later purported to
clarify in unpublished dicta that Indalex did not “hinge[] upon
the element of subjectivity in the underlying policy’s definition
of occurrence.” Hagel v. Falcone, No. 614 EDA 2014, 2014
WL 8331846, at *12 (Pa. Super. Ct. Dec. 23, 2014). The court
also noted that its language in Indalex was “difficult to
reconcile” with Kvaerner and that, “in any event,” Indalex’s
25
 Third, in an analogous context, Pennsylvania law
imbues the Insured’s Intent Clause with a subjective-intent
requirement. In United Services Automobile Association v.
Elitzky, the Pennsylvania Superior Court interpreted a policy
exclusion that precluded coverage for damage or injury
“intended or expected by the insured.” 517 A.2d 982, 984–85
(Pa. Super. Ct. 1986). The court held that this ambiguous
provision turns on the insured’s subjective intent, “exclud[ing]
only injury and damage of the same general type which the
insured intended to cause.” Id. at 989 (“An insured intends an
injury if he desired to cause the consequences of his act or if
he acted knowing that such consequences were substantially
certain to result.”). The Pennsylvania Supreme Court and we
have both endorsed Elitzky’s statement of the law. See Minn.
Fire & Cas. Co. v. Greenfield, 855 A.2d 854, 863 (Pa. 2004);
Aetna Life & Cas. Co. v. Barthelemy, 33 F.3d 189, 191 (3d Cir.
1994).

Elitzky’s subjective-intent standard diverges from the
standard applied in Kvaerner, CPB, and Specialty Surfaces.
Those cases applied an objective test of what constituted an
“accident,” explaining that claims for “faulty workmanship”
were objectively not “fortuitous” enough to clear that bar. See
Kvaerner, 908 A.2d at 898–99; CPB, 562 F.3d at 596–97;
Specialty Surfaces, 609 F.3d at 238–39. In particular, Kvaerner
expressed concern that any other holding would “convert a
policy for insurance into a performance bond.” Kvaerner, 908
A.2d at 899. CPB explained that “the failure to provide [a
product as agreed-upon] is too foreseeable to be considered an
accident.” CPB, 562 F.3d at 596. And Specialty Surfaces added
that “damages that are a reasonably foreseeable result of the
faulty workmanship are also not covered under a commercial
general liability policy.” Specialty Surfaces, 609 F.3d at 239
(citations omitted). But none of those cases interpreted or

holding was mainly based on other grounds. Id. Yet Indalex
was correct to recognize the differing language between the
policies at issue there and in Kvaerner, especially considering
the presumption against ignoring contractual language
explained above. The Insurers’ reliance on Hagel is thus
misplaced. We find persuasive Indalex’s explanation that the
“subjective language” of the Insured’s Intent Clause may have
a material effect on coverage. See Indalex, 83 A.3d at 424–25.
26
applied the Expected/Intended Definition of occurrence at
issue here.10 And thus none of those cases analyzed, or even
considered relevant, the subjective intent and expectations of
the insured.

For these reasons, we predict that the Pennsylvania
Supreme Court would follow Elitzky and find that the
Expected/Intended Definition of “occurrence” is ambiguous.
See Elitzky, 517 A.2d at 989. We also predict that the
Pennsylvania Supreme Court would construe the subjective-
language against the insurer, holding that Elitzky should guide
our interpretation instead of Kvaerner. So we hold that, under
the Expected/Intended Definition, an “occurrence” includes
those conditions not “of the same general type which the
insured intended to cause.” Elitzky, 517 A.2d at 989.

The District Court did not separately analyze these
seven policies, grouping them instead with the cohort of
Accident Definition policies. That was error, since courts must
review and enforce insurance policies according to their terms.
And the operative term of these seven policies—the
Expected/Intended Definition of “occurrence”—is materially
unique. So we will vacate the District Court’s decision as it
relates to these seven policies and remand for further
consideration consistent with this opinion.

3

Two policies—the Liberty Mutual Policies—contain
the Injurious Exposure Definition of “occurrence.” As noted

10
We recognize that Kvaerner equated an “accident”
with something “unexpected”—i.e., “a degree of fortuity that
is not present in a claim for faulty workmanship.” 908 A.2d at
898. Yet nothing in Kvaerner suggests that the court thought
“fortuity” should be measured subjectively. On the contrary,
the court held that claims for faulty workmanship were
categorically not fortuitous. See id. at 899. Under the Accident
Definition at issue there, the court reasoned that including
objectively foreseeable, but subjectively unintended damage in
the definition of “occurrence” would create “an overly broad
interpretation of accident.” Id. at 899 n.9. Kvaerner’s holding
is, on this question, limited to the text of the Accident
Definition at issue there.
27
above, this definition is identical to the Expected/Intended
Definition, except that it uses the term “injurious exposure”
instead of “accident.” The District Court did not analyze these
policies separately, despite their unique wording. As a result,
as with the seven policies containing the Expected/Intended
Definition, and for many of the same reasons, we will vacate
the District Court’s decision as it relates to these two policies
and remand for further individualized consideration consistent
with this opinion.

* * * * *

To sum up, the rule we reemphasize here is simple: in
Pennsylvania, insurance policies must be interpreted and
applied in accordance with their plain language and relevant
Pennsylvania law. We believe that this rule best allows the
parties to an insurance policy to structure their contractual
relationship as they see fit.

As explained above, for the nineteen policies that
contain the Accident Definition of “occurrence,” under
Kvaerner, CPB, and Specialty Surfaces, Marvin’s
allegations—which, at their core, are solely for faulty
workmanship—do not trigger coverage. We will thus affirm
the District Court’s decision as it relates to these policies.

For the seven policies that contain the
Expected/Intended Definition of “occurrence,” we hold that
the Insured’s Intent Clause triggers the subjective-intent
standard from Elitzky. We will vacate the District Court’s
decision as it relates to these policies and remand for further
consideration consistent with this opinion.

And for the two policies that contain the Injurious
Exposure Definition of “occurrence,” since they also include
the Insured’s Intent Clause, we will vacate the District Court’s
decision and remand for further consideration consistent with
this opinion.

To be clear, we take no position on whether Sapa may
ultimately recover under any of the policies we are remanding
to the District Court for more consideration. Given the
extensive record and the amount in controversy, the parties
should be afforded the opportunity to develop their coverage

28
arguments, including various theories of triggering conditions,
under those policies before the District Court in the first
instance.

V

For these reasons, we will affirm in part and vacate in
part the District Court’s decision and remand for additional
consideration consistent with this opinion.

29