Case: 10-30190 Document: 00511586084 Page: 1 Date Filed: 08/29/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 29, 2011
No. 10-30190 Lyle W. Cayce
Clerk
JEFFERSON BLOCK 24 OIL & GAS, L.L.C.,
Plaintiff–Appellant,
v.
ASPEN INSURANCE UK LIMITED; ACE EUROPEAN GROUP LIMITED;
CERTAIN UNDERWRITERS AT LLOYD’S, LONDON, subscribing to Policy
07835N6717,
Defendants–Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
Before GARZA and BENAVIDES, Circuit Judges, and LYNN*, District Judge.
LYNN, District Judge:
In this insurance coverage dispute, Plaintiff–Appellant Jefferson Block 24
Oil & Gas, L.L.C. (Jefferson Block) appeals from the district court’s grant of
summary judgment in favor of Defendants–Appellees, Aspen Insurance UK
Limited, Ace European Group Limited, and Certain Underwriters at Lloyd’s,
London (collectively Underwriters). For the following reasons, we REVERSE
and REMAND.
*
District Judge of the Northern District of Texas sitting by designation.
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I
At all times relevant to this appeal, Jefferson Block was the part-owner,
and sole operator, of seven offshore oil and gas leases, an associated platform,
wells, and pipelines located in the Gulf of Mexico. The leases were divided
between two different lease blocks located in the High Island area. Two of the
leases, M-103384 and M-103385, were located in the High Island 7 lease block,
and the five others, M-103386, M-103387, M-103388, M-103389, and M-103390,
were located in the High Island 24 lease block. Jefferson Block also operated a
16-inch right-of-way oil pipeline that connected an offshore production facility
located on one of the leases in the High Island 24 lease block, M-103387, with a
facility on shore. In reaching its destination, the pipeline crossed other lease
blocks, including High Island 7, where Jefferson Block operated certain leases,
and several others where it held no interests.
On November 5, 2007, there was a sudden decrease in pressure in the 16-
inch pipeline while Jefferson Block was filling the pipeline with oil. An
investigation revealed that a leak had developed in the line, resulting in the spill
of oil into the Gulf of Mexico. Jefferson Block, acting under the direction of a
“Unified Command” consisting of the United States Coast Guard and other
governmental agencies, conducted a cleanup of the spill, during which it
incurred approximately $3 million in oil pollution “removal” costs.
At the time of the pipeline leak and the resulting cleanup, Jefferson Block
owned a “London OPA Insurance Policy for Offshore Facilities” (the OPA Policy)
underwritten by Underwriters. Underwriters’ potential exposure under the OPA
Policy is limited, however, to only certain liabilities that Jefferson Block incurred
“as the responsible party Designated Applicant of the offshore area(s) and
facility(ies) set out in Item 10 of the Declarations.” An additional proviso in the
OPA Policy provides that the policy only covers certain liabilities arising from
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a “discharge or substantial threat of discharge as to which a facility (or facilities)
set out in Item 10 of the Declarations has been designated as the source.”
Item 10 of the Declarations consists of only a single sentence: “Item 10:
Schedule of Offshore Area(s) and Facilities Thereon: (See attached form MMS-
1021).” The MMS-1021 form itself, discussed in further detail below, is titled
“Covered Offshore Facilities,” and lists “2 Locations of Covered Offshore
Facilities.” Specifically, the form lists Lease Numbers M-103384 to M-103385
in the High Island 7 lease block on one line and Lease Numbers M-103386
through M-103390 in the High Island 24 lease block on a second line. The MMS-
1021 form does not specifically reference the 16-inch pipeline.
Jefferson Block submitted a claim under the OPA Policy for
indemnification of the removal costs it incurred in responding to the pipeline
leak. Underwriters denied the claim, and Jefferson Block filed suit against
Underwriters in the Eastern District of Louisiana. Specifically, Jefferson Block
alleged that Underwriters wrongfully refused to indemnify it for oil pollution
removal costs. The parties thereafter filed cross-motions for summary judgment,
and the district court, after concluding that the OPA Policy did not cover the
costs Jefferson Block sustained as a result of the leak in the 16-inch pipeline,
granted Underwriters’ motion, denied Jefferson Block’s motion, and entered
judgment in favor of Underwriters. This appeal followed.
II
We review the district court’s grant of summary judgment de novo,
applying the same standards as the district court. DePree v. Saunders, 588 F.3d
282, 286 (5th Cir. 2009). “The district court’s interpretation of an insurance
contract is a question of law that we also review de novo.” Admiral Ins. Co. v.
Ford, 607 F.3d 420, 422 (5th Cir. 2010) (internal quotation marks and citation
omitted). Summary judgment is appropriate when “the pleadings, the discovery
and disclosure materials on file, and any affidavits show that there is no genuine
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issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(c)(2). “A genuine issue of material fact exists
if the evidence is such that a reasonable jury could return a verdict for the non-
moving party.” Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 391 (5th
Cir. 2009) (internal quotation marks and citations omitted). “When assessing
whether a dispute to any material fact exists, we consider all of the evidence in
the record but refrain from making credibility determinations or weighing the
evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d
395, 398-99 (5th Cir. 2008). “In reviewing the entire record, we consider all
evidence in a light most favorable to the non-moving party and draw all
reasonable inferences in favor of the non-moving party.” Frakes v. Crete Carrier
Corp., 579 F.3d 426, 429-30 (5th Cir. 2009) (internal quotation marks and
citation omitted).
III
This case presents an insurance coverage dispute governed by New York
law.1 “It is well established under New York law that a policyholder bears the
burden of showing that the insurance contract covers the loss.” Morgan Stanley
Grp., Inc. v. New England Ins. Co., 225 F.3d 270, 276 (2d Cir. 2000). A court
interprets an insurance policy using the same general rules that govern the
construction of any written contract. See Throgs Neck Bagels, Inc. v. GA Ins. Co.
of N.Y., 671 N.Y.S.2d 66, 68 (App. Div. 1998). In a case like this one, the
analysis proceeds in three steps.
First, the court considers the express language of the policy, construing
that language “to effectuate the intent of the parties as derived from the plain
meaning of the policy’s terms.” Andy Warhol Found. for the Visual Arts, Inc. v.
Fed. Ins. Co., 189 F.3d 208, 215 (2d Cir. 1999). When the contract language is
1
An endorsement to the OPA Policy provides that “[t]he proper and exclusive law of
this insurance shall be New York law.”
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unambiguous, the court will discern the parties’ intent from the document itself
as a matter of law, and summary judgment is thus appropriate. See id. (“If the
language of the insurance contract is unambiguous, we apply its terms.”);
Sarinsky’s Garage, Inc. v. Erie Ins. Co., 691 F. Supp. 2d 483, 485 (S.D.N.Y. 2010)
(“Where the contract language is wholly unambiguous, summary judgment is
appropriate.”); Dryden Cent. Sch. Dist. v. Dryden Aquatic Racing Team, 600
N.Y.S.2d 388, 391 (App. Div. 1993) (“It is well settled that courts will first look
to the express contract language used to give effect to the intention of the
parties, and where the language of a contract is clear and unambiguous, the
court will construe and discern that intent from the document itself as a matter
of law.” (citations omitted)). If the court concludes that the policy is ambiguous,
however, it should proceed to the second step.
Once the court has concluded that the policy is ambiguous, the burden
shifts to the insurer to prove that its proposed interpretation of the policy is the
correct one. Morgan Stanley Grp., Inc., 225 F.3d at 276. At this stage, “the court
may accept any available extrinsic evidence to ascertain the meaning intended
by the parties during the formation of the contract.” Id. at 275-76 (internal
quotation marks and citations omitted). If the extrinsic evidence is “so one-sided
that no reasonable person could decide the contrary,” the court may resolve the
ambiguity as a matter of law. Sarinsky’s Garage, Inc., 691 F. Supp. 2d at 486
(internal quotation marks and citation omitted). “If it is not, the extrinsic
evidence must be interpreted by the factfinder.” Id.
Finally, if the insurer fails to submit extrinsic evidence that resolves the
ambiguity, the proper interpretation is an issue of law for the court. Kenavan
v. Empire Blue Cross & Blue Shield, 677 N.Y.S.2d 560, 563 (App. Div. 1998).
Under such circumstances, a court should ordinarily resolve the ambiguity
against the insurer. Id.; see also Morgan Stanley Grp., Inc., 225 F.3d at 276 (“‘If
the extrinsic evidence does not yield a conclusive answer as to the parties’
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intent,’ a court may apply other rules of contract construction, including the rule
of contra proferentem, which generally provides that where an insurer drafts a
policy ‘any ambiguity in [the] . . . policy should be resolved in favor of the
insured.’” (quoting McCostis v. Home Ins. Co., 31 F.3d 110, 113 (2d Cir. 1994))).
With these principles in mind, we now turn to the instant dispute.
A
We begin our analysis, of course, with the express language of the OPA
Policy. Andy Warhol Found., 189 F.3d at 215. Before considering that language
in detail, though, we note that “[a]lthough clear and unambiguous terms of an
insurance policy must be given their plain and ordinary meaning, the language
of an insurance policy must be construed with reference to the risk, subject
matter and purpose of the policy.” Show Car Speed Shop, Inc. v. U.S. Fid. &
Guar. Co., 596 N.Y.S.2d 608, 609 (App. Div. 1993) (citations omitted). In this
case, we believe that the subject matter and the purpose of the OPA Policy both
shed important light on the meaning of the express terms of the policy, and, in
order to aid our interpretation of the policy, we consider them first.
1
First, it is quite clear that the subject matter of the OPA Policy was
Jefferson Block’s potential liabilities under the Oil Pollution Act of 1990, 33
U.S.C. § 2701 et seq., (the Act). As the district court recognized, the OPA Policy
was “replete with language that tie[d] it to [the Act].” Indeed, the Insuring
Agreement to the OPA Policy expressly provides for indemnification for various
types of liabilities arising under “the Act,” and Part V of the OPA Policy, entitled
“Definitions,” states in pertinent part: “Where the words ‘the Act’ are used in
this Insurance Policy they shall mean the Oil Pollution Act of 1990 . . . .”
“The [Oil Pollution Act] was enacted in 1990 in response to the Exxon
Valdez oil spill in Prince William Sound, Alaska, and was intended to streamline
federal law so as to provide quick and efficient cleanup of oil spills, compensate
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victims of such spills, and internalize the costs of spills within the petroleum
industry.” Rice v. Harken Exploration Co., 250 F.3d 264, 266 (5th Cir. 2001).
As this court has previously noted, “[t]he [Act] imposes strict liability on parties
responsible for the discharge of oil.” Id. It provides:
[E]ach responsible party for a vessel or a facility from which oil is
discharged, or which poses the substantial threat of a discharge of
oil, into or upon the navigable waters or adjoining shorelines or the
exclusive economic zone is liable for the removal costs and damages
specified in subsection (b) that result from such incident.
33 U.S.C. § 2702(a). As relevant to this case, the Act also requires responsible
parties to establish and maintain evidence of financial responsibility, referred
to as OSFR.2 33 U.S.C. § 2716.
Importantly, with respect to offshore facilities, the Act only requires
evidence of financial responsibility for those offshore facilities that have a worst-
case oil spill discharge potential of more than 1,000 barrels of oil. 33 U.S.C.
§ 2716(c)(1)(A). Such facilities are known as covered offshore facilities (COFs),
and regulations promulgated by the Department of the Interior’s Minerals
Management Service (MMS)3 “establish[] the requirements for demonstrating
OSFR for covered offshore facilities (COFs) under [the Act].” 30 C.F.R. § 253.1
(2010). The regulations define such facilities thus:
Covered offshore facility (COF) means a facility:
(1) That includes any structure and all its components (including
wells completed at the structure and the associated pipelines),
2
“Oil Spill Financial Responsibility (OSFR) means the capability and means by which
a responsible party for a covered offshore facility will meet removal costs and damages for
which it is liable under [the Oil Pollution Act] with respect to both oil-spill discharges and
substantial threats of the discharge of oil.” 30 C.F.R. § 253.3 (2010).
3
On June 18, 2010, the Secretary of the Interior issued Order No. 3302, which changed
the name of the Minerals Management Service to the Bureau of Ocean Energy Management,
Regulation, and Enforcement. See Order No. 3302, 2010 WL 2543300 (June 18, 2010).
Because this change occurred while this case was pending, in the interest of consistency we
will continue to use the MMS designation.
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equipment, pipeline, or device (other than a vessel or other than a
pipeline or deepwater port licensed under the Deepwater Port Act
of 1974 (33 U.S.C. 1501 et seq.)) used for exploring for, drilling for,
or producing oil or for transporting oil from such facilities. This
includes a well drilled from a mobile offshore drilling unit (MODU)
and the associated riser and well control equipment from the
moment a drill shaft or other device first touches the seabed for
purposes of exploring for, drilling for, or producing oil, but it does
not include the MODU; and
(2) That is located:
(i) Seaward of the coastline; or
(ii) In any portion of a bay that is:
(A) Connected to the sea, either directly or through one or more
other bays; and
(B) Depicted in whole or in part on any USGS map listed in the
Appendix to this part, or on any map published by the USGS that
is a successor to and covers all or part of the same area as a listed
map. Where any portion of a bay is included on a listed map, this
rule applies to the entire bay; and
(3) That has a worst case oil-spill discharge potential of more than
1,000 bbls of oil, or a lesser volume if the Director determines in
writing that the oil-spill discharge risk justifies the requirement to
demonstrate OSFR.
30 C.F.R. § 253.3 (2010). One method of demonstrating OSFR for a COF is to
provide evidence of insurance. 33 U.S.C. § 2716(e); 30 C.F.R. § 253.20 (2010).
Both Jefferson Block and Underwriters agree that one of the purposes of the
OPA Policy was to satisfy the MMS’s requirements for demonstrating OSFR.
2
With its purpose and subject matter in mind, we now address the express
language of the OPA Policy under which Jefferson Block seeks coverage of the
16-inch pipeline. Part 1 of the OPA Policy, entitled “Insuring Agreement,”
provides in pertinent part:
Part 1. INSURING AGREEMENT
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In consideration of the premium stated herein and subject to all of
the terms, conditions and limitations contained herein, the
Underwriters agree to indemnify the Assured for such amounts in
excess of the Deductible set out in Item 3 of the Declarations (the
“Deductible”) as the Assured shall, as the responsible party
Designated Applicant of the offshore area(s) and facility(ies) set out
in Item 10 of the Declarations, have become liable to pay, and shall
pay, by reason of or with respect to:
FIRST: Liability under Section 1002 of the [Oil Pollution Act] for a
discharge of oil as defined in Section 1001(23) of the Act, or the
substantial threat of a discharge of oil into or upon the navigable
waters or adjoining shorelines or the exclusive economic zone of the
United States of America for [certain specified removal costs or
damages].
Part 1 also includes several provisos, one of which requires “that the discharge
or substantial threat of discharge” that gives rise to liability “is a discharge or
substantial threat of discharge as to which a facility (or facilities) set out in Item
10 of the Declarations has been designated as the source pursuant to Section
1014(a) of the Act . . . .” For its part, Item 10 of the Declarations consists of a
single sentence. It reads: “Item 10: Schedule of Offshore Area(s) and Facilities
Thereon: (See attached form MMS-1021).”
The MMS-1021 form is a form created by the MMS, the branch of the
Department of the Interior responsible for enforcing the OSFR requirements of
the Act. A designated applicant4 uses the MMS-1021 form to identify to the
MMS the applicant’s “covered offshore facilities to be covered by my application
for certification of [OSFR].” One important characteristic of the MMS-1021 form
is that the form asks only for the locations of an applicant’s covered offshore
facilities—not a list of the specific facilities themselves. The form is titled
“Covered Offshore Facilities” and includes a table in which a designated
4
The designated applicant is the “person the responsible parties designate to
demonstrate OSFR for a COF on a lease, permit, or right-of-use and easement.” 30 C.F.R.
§ 253.3 (2010).
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applicant lists the locations of covered offshore facilities using the following
identifiers: (1) the State or OCS Region; (2) the Lease Number; (3) the Aliquot
Portion; (4) the Area Name; (5) the Block Number; (6) the Permit Number; (7)
the Right of Use/Easement Number; (8) the Pipeline Segment Number; and (9)
the Potential Worst-Case Oil Spill Discharge (in barrels). As already discussed,
Jefferson Block’s MMS-1021 form lists Lease Numbers M-103384 to M-103385
in the High Island 7 lease block on one line and Lease Numbers M-103386
through M-103390 in the High Island 24 block on a second line. The form
assigns the High Island 7 block leases a worst-case discharge calculation of 1,000
barrels and the High Island 24 block leases a worst-case discharge calculation
of 5,000 barrels. The form includes no express reference to the 16-inch pipeline.
3
The district court, interpreting the OPA Policy during the proceedings
below, reached the following conclusions with respect to the policy’s language.
First, the district court concluded that “the OPA policy clearly and
unambiguously cover[ed] COFs located on the leases listed on the MMS-1021.”
The court went on to note, however, that “it [was] not clear whether the 16-inch
pipeline [was] ‘located’ on these leases.” Accordingly, the district court concluded
that the OPA Policy is ambiguous with respect to whether the pipeline was
located on the leases identified on the MMS-1021 form.
Jefferson Block contends on appeal that the district court erred in its
interpretation of the OPA Policy and that the plain language of the OPA Policy
unambiguously includes the 16-inch pipeline within the scope of its coverage.
Jefferson Block’s argument proceeds in three stages. First, Jefferson Block notes
that the Insuring Agreement provides for coverage of “the offshore area(s) and
facility(ies) set out in Item 10 of the Declarations.” Jefferson Block then points
out that Item 10 of the Declarations directs the reader to the MMS-1021 form in
order to determine the “Offshore Area(s) and Facilities Thereon” that the
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Insuring Agreement covers. Finally, Jefferson Block contends that the MMS-
1021 form unambiguously identifies the High Island area as the “Offshore Area”
to which coverage extends under the policy. Jefferson Block argues:
MMS-1021 identifies, inter alia, the “AREA NAME:” . . . as “HI.” It
is undisputed that “HI” stands for “High Island.” There is no
ambiguity here—MMS-1021 uses the word “AREA” only once, and
that one time it identifies High Island as the “Area.” MMS-1021
does not identify any “facilities.” Therefore, the plain meaning of
the Insuring Agreement and Item 10 of the Declarations is that
coverage applies to the High Island Offshore Area and any
“facilities” thereon.
Since there is no dispute that the 16-inch pipeline was a “facility” located
entirely within the High Island offshore area,5 Jefferson Block contends that the
OPA Policy is unambiguous and extends coverage to the pipeline.
We reject Jefferson Block’s argument, because its proposed interpretation
of the OPA Policy conflicts with the express language of Item 10 and Jefferson
Block’s MMS-1021 form, as well as the purposes of the policy.
We begin our analysis with the plain language of Item 10. Jefferson
Block’s first argument presumes that, for an insured to obtain coverage of a
facility, Item 10 only requires that the insured designate the offshore area on
which that facility is located. Item 10, however, references a schedule of
“Offshore Area(s) and Facilities Thereon.” Jefferson Block’s proposed
interpretation—that simply designating an offshore area is sufficient to extend
coverage to all facilities in that area—renders meaningless Item 10’s reference
to “Facilities Thereon.” Cf. Ruttenberg v. Davidge Data Sys. Corp., 626 N.Y.S.2d
5
The OPA Policy does not define “facility,” but the definitions section of the policy
expressly provides that all “terms and phrases used herein shall, unless otherwise stated, have
the meaning given to them in the [Oil Pollution Act].” The Act defines facility as “any
structure, group of structures, equipment, or device (other than a vessel) which is used for one
or more of the following purposes: exploring for, drilling for, producing, storing, handling,
transferring, processing, or transporting oil. This term includes any motor vehicle, rolling
stock, or pipeline used for one or more of these purposes.” 33 U.S.C. § 2701(9).
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174, 177 (App. Div. 1995) (“It is a recognized rule of construction that a court
should not adopt an interpretation which will operate to leave a provision of a
contract . . . without force and effect.” (internal quotation marks and citations
omitted)). Item 10 contemplates not just the designation of an offshore area, but
also the designation of facilities located within that offshore area. That the OPA
Policy includes a proviso that limits coverage to “a discharge or substantial
threat of discharge as to which a facility (or facilities) set out in Item 10 of the
Declarations has been designated as the source” only buttresses this conclusion.
Second, Jefferson Block’s argument also fails to account for the fact that
Item 10, by naming MMS-1021 as the “Schedule of Offshore Area(s) and
Facilities Thereon,” incorporates into the insurance contract the entire MMS-
1021 form, not just the parts of the form that reference the High Island area.
The MMS-1021 form is entitled “COVERED OFFSHORE FACILITIES,” and
proceeds to list the locations of covered offshore facilities “to be covered by
[Jefferson Block’s] application for certification of oil spill financial
responsibility.” The form does not identify the locations of these covered offshore
facilities through reference to an area name only, but also through reference to
specific block numbers and lease numbers. By focusing only on the form’s
reference to the High Island area, Jefferson Block ignores these more specific
identifiers. Jefferson Block’s argument also ignores the clear purpose of the
MMS-1021 form—the identification of “covered offshore facilities” for which a
designated applicant seeks to demonstrate OSFR.
In short, Item 10 exists to provide the schedule of offshore areas and the
facilities in those offshore areas that the OPA Policy covers. Item 10
accomplishes this task by referencing the MMS-1021 form. And, as already
noted, the MMS-1021 form exists to identify “covered offshore facilities” for
which a designated applicant seeks to demonstrate OSFR. When we read them
together, we believe that the import of Item 10 and MMS-1021 is
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clear—Jefferson Block’s OPA Policy provides coverage for covered offshore
facilities at the locations identified on the MMS-1021 form.
“[E]very clause or word in an insurance contract is deemed to have some
meaning, and a policy’s terms should not be assumed to be superfluous or to
have been idly inserted.” Schumann v. State, 610 N.Y.S.2d 987, 990 (Ct. Cl.
1994) (internal quotation marks and citations omitted). Additionally, we must
give due regard “to the risk and subject matter and the purpose of the policy.”
De Forte v. Allstate Ins. Co., 442 N.Y.S.2d 307, 309 (App. Div. 1981) (internal
citation omitted). The interpretation of the OPA Policy that we adopt, which
was the one adopted by the district court, comports with the plain language of
the OPA Policy and promotes the purpose of the policy. Jefferson Block’s
interpretation does neither. Accordingly, we reject Jefferson Block’s claim that
the plain language of the OPA Policy unambiguously includes the 16-inch
pipeline within the scope of its coverage.
4
Our rejection of Jefferson Block’s plain language argument does not end
our inquiry, however. Rather, it simply re-frames the issue. Under the
interpretation of the OPA Policy we adopt, the relevant issue is, as the district
court correctly recognized, whether Jefferson Block’s 16-inch pipeline was a
covered offshore facility “located” on one of the lease blocks identified on the
MMS-1021 form.
The district court observed that the answer to this question is anything
but clear:
The 16-inch pipeline began on Jefferson Block’s High Island 24 lease
M-103387 where it was connected to platform 24A, but it ran 6
miles to the shore. To get to that termination point on shore, the
pipeline crossed High Island 90, 89, 75, 76, 67, and 66, where
Jefferson Block had no leasehold interests. A map of the area
suggests that nearly 3/4’s of the pipeline was located outside of the
leases that Jefferson Block listed on MMS-1021. The pipeline
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crossed these other properties pursuant to an easement that had
been granted by the Texas General Land Office. Thus, it is not so
clear that the 16-inch pipeline can fairly be described as a facility
“located” on the leases listed on MMS-1021. Likewise, it is not so
clear that the pipeline is not “located” on those leases because some
portion of the 16-inch pipeline undisputedly spans Jefferson Block’s
leases.
The district court went on to explain that the OPA Policy is “ambiguous because
the meaning of ‘located’ is reasonably susceptible to more than one
interpretation.” Accordingly, the court resolved to consider extrinsic evidence
in order to determine whether the parties intended the 16-inch pipeline to be a
facility within the designated locations on the MMS-1021 form.
Although we note that the particular term that the district court
determined was ambiguous—“located”—does not appear in the OPA Policy, we
agree with the district court’s more basic point. Specifically, whether the
pipeline was a covered offshore facility “located” on (or more properly “thereon”)
one of the lease blocks identified on the MMS-1021 form cannot be determined
through reference to the OPA Policy alone. Because the OPA Policy is thus
capable of two different interpretations—one in which the pipeline is located on
the leases listed on the MMS-1021 form and one in which it is not—we agree
with the district court that the policy is ambiguous as a matter of law. See Andy
Warhol Found., 189 F.3d at 215 (“Where its terms are reasonably susceptible to
more than one interpretation, the policy must be regarded as ambiguous.”).
Accordingly, as did the district court, we proceed to step two of New York’s
interpretation framework and consider extrinsic evidence in an attempt to
resolve the ambiguities in the policy. Id. (“When a court decides, after
examination of the contractual language, that an insurance policy is ambiguous,
it looks outside the policy to extrinsic evidence, if any, to ascertain the intent of
the parties.”).
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B
As we have already noted, when a court determines that an insurance
policy is ambiguous, “the court may accept any available extrinsic evidence to
ascertain the meaning intended by the parties during the formation of the
contract.” Morgan Stanley Grp., 225 F.3d at 275-76 (internal quotation marks
and citations omitted). Although the district court’s order is not entirely clear
on this point, it appears that the district court, after considering several pieces
of extrinsic evidence, concluded that the extrinsic evidence established that the
OPA Policy’s coverage extends only as far as was necessary for Jefferson Block
to demonstrate OSFR compliance to the MMS. Since the district court also
concluded that the pipeline did not meet the MMS’s definition of a covered
offshore facility, thus relieving Jefferson Block from the requirement of
demonstrating OSFR compliance for the pipeline, the district court also
determined that the pipeline was not covered by the policy. For the reasons
discussed below, we believe that the district court erred when it reached this
conclusion and that none of the extrinsic evidence proffered by Underwriters
serves to resolve the ambiguity with respect to coverage of the pipeline.
Since the OPA Policy is ambiguous with respect to coverage of the 16-inch
pipeline, Underwriters bear the burden of proving the correctness of their
interpretation of the policy—that the location designations in the MMS-1021
form do not include the pipeline. See id. at 276 (“If the court concludes that an
insurance policy is ambiguous, then the burden shifts to the insurer to prove
that its interpretation is correct.”). Moreover, “[i]f the extrinsic evidence does
not yield a conclusive answer as to the parties’ intent, it is appropriate for a
court to resort to other rules of construction, including the contra-insurer rule,
which states that any ambiguity in an insurance policy should be resolved in
favor of the insured.” McCostis v. Home Ins. Co. of Ind., 31 F.3d 110, 113 (2d
Cir. 1994).
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We address first the extrinsic evidence that addresses whether the 16-inch
pipeline was a “covered offshore facility” as that term is used in MMS-1021. The
district court determined that the pipeline was not a “covered offshore facility”
because extrinsic evidence in the record suggests that the 16-inch pipeline was
not a COF under the applicable MMS regulations. Specifically, the district court
referenced an expert report submitted by Jefferson Block, on which
Underwriters also rely on appeal, that estimates a worst case discharge for the
16-inch pipeline of only 378.7 barrels. As we have already noted, a facility is
only a COF that requires a demonstration of OSFR if it has a worst-case oil spill
discharge potential of more than 1,000 barrels of oil. Since the MMS-1021 form
is used to identify those facilities for which a designated applicant seeks to
demonstrate OSFR, Underwriters argue—and the district court below
agreed—that the pipeline is not included in the locations listed on the form
because it was not a COF for which there existed a need to demonstrate OSFR.
As Jefferson Block points out, however, the expert report on which both
the district court and Underwriters rely estimates a worst-case discharge for all
of Jefferson Block’s facilities in the High Island 24 lease block, including the
pipeline, of only 666 barrels. If we follow Underwriters’ argument to its logical
conclusion, no facility on the High Island 24 lease block would qualify as a COF
such that Jefferson Block needed to demonstrate OSFR. Thus, to the extent the
expert report that Underwriters rely on establishes that the pipeline was not a
COF for which Jefferson Block needed to demonstrate OSFR, the report also
establishes that there were no COFs on the High Island 24 lease block. Yet,
Jefferson Block identified its leaseholds in the High Island 24 lease block on the
MMS-1021 form and indicated a potential worst-case discharge of 5,000 barrels.
Accordingly, the only inference that one can draw from this expert report is that
Jefferson Block sought voluntarily to include on its MMS-1021 facilities that
were not actually COFs. Indeed, as Jefferson Block notes, Notices to Lessees
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(NTL) published by the MMS expressly provide that a designated applicant may
include on an MMS-1021 form facilities with a worst-case discharge potential of
less than 1,001 barrels that are not COFs under 30 C.F.R. § 253.3.6 See NTL No.
2008-N05. It would appear, then, that a facility can be a “covered offshore
facility” listed on MMS-1021 without necessarily being a COF. Thus, evidence
that the 16-inch pipeline was not a COF provides no insight with respect to
whether the pipeline was a non-COF facility that Jefferson Block sought to
include on its MMS-1021 form, especially since it appears that none of the
facilities on the High Island 24 lease block were COFs.
Underwriters also point to extrinsic evidence to support their argument
that, whether the 16-inch pipeline was a COF or not, it needed to be listed
separately on MMS-1021 in order for coverage under the OPA Policy to attach.
Specifically, Underwriters note that NTL No. 2008-N05 states: “Each lease,
permit, RUE, or pipeline is considered as a unique, separate COF. On OSFR
forms that require these COFs to be shown, each one must be listed on its own
individual, single line.” Moreover, Underwriters argue, NTL No. 99-N01
provides an exception to this separate listing requirement for “lease term
pipelines”—pipelines that are “wholly contained within the boundaries of a
6
Underwriters make much of the fact that the relevant NTL prescribes a specific
method for a designated applicant to indicate OSFR coverage for facilities with a worst case
oil-spill potential under 1,001 barrels. Specifically, NTL No. 2008-N05 provides that if a
designated applicant wishes to demonstrate OSFR coverage for facilities that are not COFs,
“the listed facility(s) must show a COF worst case oil-spill discharge volume of ‘<1,001’ barrels
in the appropriate column on the Form MMS-1021 and/or Form MMS-1022.” Underwriters
argue that the fact that Jefferson Block did not list any facility with a worst-case discharge
volume of “<1,001” on its MMS-1021 form indicates that Jefferson Block did not intend to
include any facilities that were not COFs. The problem with this argument, of course, is that,
according to the expert report that Underwriters rely on, none of the facilities on the High
Island 24 lease block had a worst-case discharge potential of greater than 1,000 barrels. The
implication of Underwriters’ argument is thus that Jefferson Block did not intend to cover any
of these facilities because it did not use the specific method designated by the NTL at issue.
We must reject this argument, then, because Jefferson Block must have intended to cover
something when it included the High Island 24 lease block on its MMS-1021.
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single lease, unitized leases, or contiguous (not cornering) leases of the same
owner or operator.” The implication of these notices, Underwriters argue, is that
non-lease term pipelines (also known as right-of-way pipelines), of which there
is no dispute the 16-inch pipeline was one, must be separately listed on MMS
Form-1021.
As the district court noted, however, “none of the MMS regulations or
publications expressly require that the 16-inch pipeline be listed on MMS-1021.”
Moreover, we note that the NTLs that Underwriters rely on also include
guidance suggesting that a separate designation of the 16-inch pipeline was not
necessary. NTL No. 99-N01, for example, provides that “[i]f a lease with a single
operator contains more than one facility that can be classified as a COF, we
require only the COF with the largest potential worst case oil spill discharge on
the lease to be listed in the OSFR application.” Moreover, NTL No. 2008-N05
provides that “[p]ipelines covered by OSFR must be recorded only in the area
and block where the pipeline begins.” The 16-inch pipeline began in the High
Island 24 lease block, where Jefferson Block also operated other facilities. Thus,
even if NTL No. 2008-N05 requires that Jefferson Block treat the pipeline as a
separate facility, it appears that Jefferson Block was only required to list one of
the facilities in the lease block on the form. Accordingly, we do not believe that
the NTLs that Underwriters rely on conclusively resolve the issue that confronts
the court—whether the locations that Jefferson Block identified on the MMS-
1021 form included the pipeline.
The final piece of extrinsic evidence that Underwriters request the Court
consider is an e-mail from Jefferson Block’s regulatory consultant, Roberta
McClure. That e-mail reads in pertinent part:
Attached are the OSFR worksheets that will assist you with
determining how much coverage you will need. As we discussed,
MMS determines coverage based on a lease-basis (lease map of
properties attached). This includes all wells, pipelines and facilities
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No. 10-30190
contained within an individual lease. However, ROW pipelines (i.e.
the 16[-inch] pipeline that goes to the shore base) are considered
differently—there is a separate worksheet included for same. Also,
there is the MMS Form 1021 attached for your reference.
The district court concluded that this e-mail suggested that Jefferson Block was
required to list the 16-inch pipeline as a separate line on the MMS-1021 if it
wanted insurance coverage for the pipeline, because the pipeline was a right-of-
way pipeline. Based on this e-mail, the court determined that “[c]learly,
Jefferson Block’s own experts in the area of MMS regulatory requirements
understood that Jefferson Block would not be able to lump the 16-inch pipeline
in with the other facilities that were contained within the leases listed on the
MMS-1021.”
We are not convinced that the import of this e-mail is as the district court
suggests. As Jefferson Block notes, the e-mail appears to communicate that the
worst-case spill potential for right-of-way (or non-lease term) pipelines is
calculated under a different formula than that applied to lease term pipelines.
A worksheet attached to the e-mail, titled “Calculation Worksheet for Worst
Case Discharge Scenario,” supports this interpretation of the e-mail. That
worksheet addresses worst-case discharge calculations for right-of-way pipelines
like the 16-inch pipeline. At the very least, we cannot conclude that the e-mail
conclusively resolves the ambiguity in the OPA Policy with respect to coverage
of the 16-inch pipeline.
In short, we do not believe that any of the extrinsic evidence in the record
conclusively resolves whether the 16-inch pipeline was a facility entitled to
coverage under the OPA Policy. Thus, interpretation of the policy remains a
question of law for the court. See Primavera v. Rose & Kiernan, Inc., 670
N.Y.S.2d 223, 224 (App. Div. 1998). Under such circumstances, “it is
appropriate . . . to resort to other rules of construction, including the
contra-insurer rule, which states that any ambiguity in an insurance policy
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No. 10-30190
should be resolved in favor of the insured.” McCostis, 31 F.3d at 113. We now
consider whether we should apply the contra-insurer rule in this case.
C
The district court below concluded that the contra-insurer rule was not
applicable in this case.7 It refused to apply the rule for two reasons. First, the
court reasoned that Jefferson Block is at least partly to blame for the ambiguity
because it completed the MMS-1021 form without listing the 16-inch pipeline.
Second, the court cited the Roberta McClure e-mail to Jefferson as evidence that
“Jefferson Block’s own regulatory consultant specifically identified to its client
the very omission with respect to the 16-inch pipeline that led to the ambiguity
with respect to this particular facility.” As we have already noted, we do not
believe that the McClure e-mail is conclusive, and we see no reason why it would
prevent the application of the contra-insurer rule in this case. Thus, we turn to
the first reason that the district court provided—that Jefferson Block is at least
partly responsible for the ambiguity with respect to coverage of the pipeline.
On appeal, Underwriters reassert the district court’s argument and
contend that Jefferson Block should not benefit from an application of the
contra-insurer rule because “the disputed policy language was drafted,
furnished, or completed by the policyholder.” Specifically, Underwriters contend
that the rule’s raison d’etre is to prevent the party responsible for an ambiguity,
which will typically be the insurer as the drafter of the policy, from benefitting
from the ambiguity it created. In this case, Underwriters note that the
ambiguity at issue exists in the scheduling of facilities on the MMS-1021 form,
7
Specifically, the district court refused to apply the “reasonable expectations” doctrine.
In New York, the “reasonable expectations” doctrine does not materially differ from the contra-
insurer rule, a point the district court implicitly made when it described the doctrine as
applying “such that any ambiguity in the policy would be construed against Underwriters and
in favor of coverage.” See also JEFFREY E. THOMAS, 1-5 NEW APPLEMAN ON INSURANCE LAW
LIBRARY EDITION § 5.05 (2010) (identifying New York as a state that “us[es] the terminology
of reasonable expectations when applying the contra proferentem doctrine”).
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and that Jefferson Block completed that form. According to Underwriters, “[t]o
the extent the form as completed by Jefferson Block or its agents was ambiguous
as to whether the pipeline was covered, the traditional construction against the
insurer as drafter does not apply.”
We are not persuaded by Underwriters’ arguments, and we believe that
the district court erred when it refused to construe the ambiguity in the OPA
Policy in favor of Jefferson Block. To be sure, some New York courts have
declined to apply the contra-insurer rule based in part on the insured’s
involvement in crafting the terms of the disputed policy. See, e.g., Cummins,
Inc. v. Atl. Mut. Ins. Co., 867 N.Y.S.2d 81, 83 (App. Div. 2008) (declining to
construe term against defendant insurer where “the basic concept and terms
originated with plaintiff, . . . plaintiff [was] sophisticated and . . . instrumental
in crafting various parts of the agreement, and . . . while not an insurance
company, had equal bargaining power and acted like an insurance company by
maintaining a self-insured retention”); Metpath Inc. v. Birmingham Fire Ins. Co.
of Pa., 449 N.Y.S.2d 986, 989 (App. Div. 1982) (resolving ambiguity in an
insurance policy against the insured because the policy was drafted by the
insured’s insurance broker and the contested provisions were requested by the
insured’s representatives).
However, such cases are inapposite because Jefferson Block’s completing
the MMS-1021 form does not amount to its drafting or dictating the terms of the
policy. Here, it is undisputed that Jefferson Block filled out the MMS-1021 form;
however, it was Underwriters that drafted the OPA Policy, incorporating the
form as the “Schedule of Offshore Area(s) and Facilities Thereon.” Specifically,
the record demonstrates that Jefferson Block sent its completed MMS-1021
form to Underwriters to get a rate quote but that it was Underwriters which
drafted the OPA Policy to use the form, which lists locations of facilities rather
than facilities themselves, as the schedule of facilities. Thus, the ambiguity with
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respect to coverage is the direct result of the policy language prepared by
Underwriters insofar as that language incorporates the MMS-1021 form into the
policy.
Underwriters’ responsibility for the ambiguity is not diminished by the
possibility that Jefferson Block could have recorded the pipeline on the MMS-
1021 form by its right-of-way number, or by listing it in an appendix attached
to the form. As the district court acknowledged, while the form may have
allowed for a more precise designation, “none of the MMS regulations or
publications expressly require that the 16-inch pipeline be listed on MMS-1021.”
Further, Underwriters just as easily could have included in the OPA Policy an
actual schedule of facilities, rather than incorporating a regulatory form that
deals only in locations. Jefferson Block’s choice to fill out the MMS-1021 form
as it is provided, by listing only the lease block on which the pipeline begins,
does not change the fact that it was Underwriters which, after receiving the
completed form from Jefferson Block, made it a provision of the OPA Policy,
without alteration or further specification.8 To the extent Jefferson Block may
have had an indirect and modest role in creating the ambiguity by filling out the
MMS-1021 form, that causal link is one wholly of Underwriters’ own creation.
Thus, the cases suggesting an exception to contra-insurer applicable where
insureds draft or actively negotiate policy terms are inapplicable to this case.
8
Nevertheless, according to the dissent, Jefferson Block “had ample power to affect the
ambiguity at issue here.” Even if this is so, the dissent does not explain how in this case the
“power to affect the ambiguity” equates to the active negotiation of contract terms that some
New York courts have held justifies departure from the contra-insurer rule. As the dissent
notes, those courts have focused on whether parties had “no voice in the selection” of contract
terms. As explained above, when Jefferson Block competed the MMS-1021 form, it simply was
not selecting policy language, but was merely completing a regulatory form. It was
Underwriters, and Underwriters alone, that selected the policy language incorporating that
form. Thus, even if those cases represent current New York law, and we do not conclude that
they do, they are inapposite because Jefferson Block “had ‘no voice in the selection of [the
contractual] language.’” Sci. Applications Int'l Corp. v. State, 60 A.D.3d 1257, 1259 (N.Y. App.
Div. 2009) (quoting 67 Wall St. Co. v. Franklin Nat'l Bank, 333 N.E.2d 184, 187 (N.Y. 1975)).
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In short, we believe that the district court erred when it refused to apply
the contra-insurer rule in this case. As we have discussed, the OPA Policy is
ambiguous with respect to the issue of coverage for Jefferson Block’s 16-inch
pipeline. This ambiguity arises because the policy’s schedule of insured facilities
refers to an MMS-1021 form that lists only the locations of facilities. Whether
the pipeline—which begins at one of the locations designated on the form but
crosses others not so designated—is a facility “thereon” one of the locations on
the form cannot be determined through reference to the plain language of the
policy. As we noted above, the extrinsic evidence in the record does not
conclusively resolve this ambiguity. Since Jefferson Block offers a reasonable
interpretation of the policy—that a right-of-way pipeline originating in one of the
lease blocks designated on an MMS-1021 form is included in that
designation—and did not completely draft the ambiguous provisions of the OPA
Policy, the contra-insurer rule should apply and the ambiguity should be
resolved in favor of the insured, Jefferson Block. The 16-inch pipeline was a
“covered offshore facility” designated on Jefferson Block’s MMS-1021 form and
thus included within the scope of coverage afforded by the OPA Policy.
* * *
For the aforementioned reasons, the district court’s grant of summary
judgment is REVERSED and the case is REMANDED for further proceedings
consistent with this opinion.
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No. 10-30190
EMILIO M. GARZA, Circuit Judge, dissenting:
Jefferson Block 24 Oil & Gas, L.L.C. (“Jefferson Block”) contends that an
Oil Pollution Act (“OPA”) insurance policy insures it against the costs of a recent
spill from a particular 16-inch right-of-way oil pipeline. The policy’s
underwriters (“Underwriters”) contend that the policy does not. The district
court granted summary judgment to the Underwriters, concluding that the
policy did not reach spills from the pipeline. The majority reverses, relying on
the rule of contra proferentem to construe ambiguity in the policy against the
Underwriters. The substantial weight of recent New York authority, however,
suggests that contra proferentem should not apply in this case. I therefore
dissent.
The OPA requires a responsible party to “establish and maintain, in
accordance with regulations promulgated by the Secretary, evidence of financial
responsibility sufficient to meet the maximum amount of liability to which the
responsible party could be subjected . . . .” 33 U.S.C. § 2716. The implementing
regulations require a responsible party to submit, to the Minerals Management
Service (“MMS”), certain forms including, in some cases, a form designated
MMS-1021. 30 C.F.R. § 253.40(a)(3). The purpose of the MMS-1021 form is to
identify a filer’s covered offshore facilities (“COFs”). Id. In this case, however,
MMS-1021 has been put to another, perhaps problematic purpose: defining the
scope of Jefferson Block’s coverage under its insurance policy. As the majority
explains, relying on the MMS-1021 form to define the scope of the policy lends
itself to some ambiguity with regard to whether the pipeline in this case is
covered by the policy.
We must resolve that ambiguity under the laws of the State of New York.
“[T]o determine state law, federal courts look to final decisions of the highest
court of the state.” Transcon. Gas Pipe Line Corp. v. Transp. Ins. Co., 953 F.2d
985, 988 (5th Cir. 1992). “In the absence of a final decision by the state’s highest
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court on the issue at hand, it is the duty of the federal court to determine, in its
best judgment, how the highest court of the state would resolve the issue if
presented with the same case.” Am. Int’l Specialty Lines Ins. Co. v. Canal
Indem. Co., 352 F.3d 254, 260 (5th Cir. 2003) (citing Transcon. Gas Pipe Line,
953 F.2d at 988). “[A]n intermediate state appellate court decision is not
controlling per se,” but may serve as “a guide to assist the federal court in its
goal of determining how the state’s highest court would decide the issue.”
Richards v. La. Citizens Prop. Ins. Corp., 623 F.3d 241, 244 (5th Cir. 2010).
The majority concludes that New York law requires us to resolve this case
in Jefferson Block’s favor pursuant to the traditional rule of contra proferentem.
Contra proferentem provides that “in cases of doubt or ambiguity, a contract
must be construed most strongly against the party who prepared it and
favorably to a party who had no voice in the selection of its language.” 67 Wall
St. Co. v. Franklin Nat’l Bank, 37 N.Y.2d 245, 249, 371 N.Y.S.2d 915, 333 N.E.2d
184 (1975). In the context of insurance disputes, contra proferentem has taken
the form of the so-called “contra-insurer” rule, which provides that “[w]hen an
ambiguity is found [in a policy], it must be construed against the insurer and in
favor of coverage.” Nationwide Mut. Ins. Co. v. CNA Ins. Co., 286 A.D.2d 485,
487, 729 N.Y.S.2d 760, 762-63 (2d Dep’t 2001). Early New York cases cast the
rule in uncompromising terms, requiring that “[w]here an insurance contract is
so drawn as to be manifestly ambiguous, so that reasonable and intelligent men
on reading it would honestly differ as to its meaning, the doubt should be
resolved against the company, because it prepared and executed the agreement,
and is responsible for the language used and the uncertainty thereby created.”
Kratzenstein v. W. Assur. Co. of Toronto, 116 N.Y. 54, 59 (1889) (citation
omitted). New York courts, however, have long since moved away from the
“earlier and more rigid” versions, adopting instead a more nuanced approach
that recognizes that contra proferentem will not always provide the appropriate
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rule of decision. U.S. Fire Ins. Co. v. Gen. Reinsurance Corp., 949 F.2d 569, 573
(2d Cir. 1991).
A review of the case law reveals numerous opinions suggesting that contra
proferentem will not apply where the party seeking the benefit of the doctrine
was sophisticated and negotiated the legal instrument at issue. See, e.g., Sci.
Applications Int’l Corp. v. State, 60 A.D.3d 1257, 1259, 876 N.Y.S.2d 182, 184 (3d
Dep’t 2009) (declining to construe contract against the drafter because both
parties “are sophisticated parties and there is evidence that they engaged in
negotiations as they worked out some of the details of the contract”); Coliseum
Towers Assocs. v. Cnty. of Nassau, 2 A.D.3d 562, 565, 769 N.Y.S.2d 293, 297 (2d
Dep’t 2003) (“The contra proferentem doctrine was inapplicable to the subject
lease since the record demonstrates that [the plaintiff] participated in
negotiating its terms.”); Citibank, N.A. v. 666 Fifth Ave. Ltd. P’ship, 2 A.D.3d
331, 331, 769 N.Y.S.2d 268, 269 (1st Dep’t 2003) (“The ambiguities are not,
however, to be construed against defendant by reason of its having drafted the
initial version of the leases, since the lease agreements ultimately entered into
resulted from extensive negotiations in which both parties, each a commercially
sophisticated entity, were represented by counsel, and plaintiff failed to show
that it ‘had no voice in the selection of [the leases’] language.’” (citation omitted));
Am. Prop. Consultants, Ltd. v. Zamias Servs., Inc., 294 A.D.2d 217, 217, 741
N.Y.S.2d 852, 853 (1st Dep’t 2002) (“Defendants’ request for a contra proferentem
charge was properly denied since, although plaintiff prepared the first draft of
the subject fee agreement, defendants negotiated significant changes to it and
had counsel available to review the agreement for them.”); MPEG LA, LLC v.
Audiovox Elecs. Corp., 2011 N.Y. Slip Op. 21260, 2011 WL 3169208, at *15 (Sup.
Ct., Suffolk Cnty., 2011) (remarking that contra proferentem probably does not
apply to sophisticated parties); Oceana Holding Corp. v. Atl. Oceana Co., Inc., 4
Misc. 1029(A), 2004 N.Y. Slip Op. 51122(U), 2004 WL 2246177, at *5 (Civ.Ct.,
26
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Kings Cnty., 2004) (stating that the “‘contra proferentem doctrine’ . . . is
inapplicable when both parties participated in negotiating the terms” ); accord
In re September 11th Liab. Ins. Coverage Cases, 458 F. Supp. 2d 104, 118 n.11
(S.D.N.Y. 2006) (stating that construing a policy against the insurer “is
‘generally inappropriate if both parties are sophisticated.’” (quoting DaPuzzo v.
Globalvest Mgt. Co., 263 F. Supp. 2d 714, 719 (S.D.N.Y. 2003))).1
The majority, however, disregards these cases and concludes that contra
proferentem must apply because Jefferson Block did not “draft[ ] or dictat[e]” the
terms of the insurance policy. But neither New York case law nor the purposes
of contra proferentem justify defining the rule’s exceptions so narrowly. Contra
proferentem is designed to protect a party that “had ‘no voice in the selection of
[the contractual] language.’” Sci. Applications, 876 N.Y.S.2d at184 (quoting 67
Wall St. Co., 37 N.Y.2d at 249). A party need not be the sole drafter or dictator
of a contract’s terms in order to have a “voice in the selection” of the contract’s
language. Moreover, “the touchstone for applying contra proferentem is the
insured’s lack of sophistication,” particularly where the parties do not have
“equivalent bargaining power.” U.S. Fire Ins. Co., 949 F.2d at 574. A
sophisticated party with a means to influence the terms of the contract should
be able to identify and, if necessary, remedy ambiguities at the time of drafting.
Such a party does not need a thumb on the scales in its favor.
1
Our sister circuit once observed that “[i]t is unsettled in New York whether contra
proferentem applies if the policyholder is a sophisticated entity that negotiated contract
terms.” Morgan Stanley Grp. Inc. v. New Eng. Ins. Co., 225 F.3d 270, 279 (2d Cir. 2000). It
is not entirely clear that the Second Circuit still views this question as undecided. Two years
after it declared the law unclear in Morgan Stanley, the court seemed to revise that estimate,
suggesting that it is “generally inappropriate” to apply contra proferentem to contracts
between sophisticated parties. Int’l Multifoods Corp. v. Commercial Union Ins. Co., 309 F.3d
76, 88 n.7 (2d Cir. 2002) (citing U.S. Fire Ins. Co., 949 F.2d at 573). In any event, our duty is
not to answer this question as the Second Circuit would answer it, but as New York’s highest
court would.
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It is clear that Jefferson Block, a commercial enterprise engaged in an
expensive, large-scale, and highly technical industry, is a sophisticated party.
It was also the party in the best position to know the details of the facilities it
operated. There is no reason, then, to think that Jefferson Block lacked the
sophistication necessary to see the ambiguity at issue here. We should turn,
then, to whether Jefferson Block had a voice in the creation of the ambiguous
terms of the policy. It is true that, as the majority stresses, the drafter of the
policy chose to rely on the MMS-1021 form. But Jefferson Block filled that form
out and, moreover, filled it out incorrectly. The ambiguity here arises entirely
out of Jefferson Block’s answers to the form, not the decision to incorporate the
form itself. As the majority concedes, a procedure exists for including a non-COF
facility on an MMS-1021. Jefferson Block simply failed to comply with that
procedure. Therefore, regardless of the extent to which Jefferson Block
negotiated the terms of the policy as a whole, it certainly had ample power to
affect the ambiguity at issue here. In light of the substantial body of law
cautioning against reliance of contra proferentem in such a situation, I cannot
concur with the majority’s decision to do so here.
What we are left with, then, is an ambiguous contract that we must
construe using the ordinary tools of contractual interpretation. By my reading,
the Underwriters’ interpretation seems to most closely fit the language at issue
and the extrinsic evidence relied upon by the district court. The MMS-1021 is,
by its own terms, a list of locations of COFs. The purpose of the MMS-1021 is
to identify COFs. The most natural reading of the policy is that it is intended to
reach COFs and/or any non-COF facilities that are properly identified on the
form in the manner directed for non-COF facilities. I therefore respectfully
DISSENT.
28