concurring in part and dissenting in part:
I concur in the majority opinion except with respect to section I.B, from which I dissent.
The majority admits that “investment counselors” is ambiguous, i.e., “vague with*282in certain parameters,” but holds as a matter of law that investment counseling does not encompass “pitching to potential buyers, as an agent for a seller.” In so holding, the majority makes the same error made by the district court — it adopts an interpretation of an ambiguous contract term that is entirely unsupported by evidence of the parties’ intent.
Indeed, after a bench trial, the district court found to the contrary that “[t]he extrinsic evidence at trial supports Morgan Stanley’s definition of the term.” Morgan Stanley Group v. New England Ins. Co., 36 F.Supp.2d 605, 610 (S.D.N.Y.1999) (.Morgan Stanley II). The court credited the testimony of James Elliott, Morgan Stanley’s former Risk & Insurance Manager, who testified that he relied on New England and insurance broker Marsh & McClennan when each represented that “the term ‘investment counselor’ was to be interpreted broadly and that the insurance contract itself “was a broad form professional liability policy which meant that it would include all activities unless they were specifically excluded within the contract.’” Id. The court also quoted a letter sent to Morgan Stanley by Albert Salvatieo, then an employee of Marsh & McClennan, in which he wrote: “The term ‘investment counseling’ is undefined with the basic policy and this is done with the purpose of allowing the policy to be as flexible as possible especially when one considers the wide array of different advisory services that a firm as large as Morgan Stanley can provide.” Id. In short, there is simply no extrinsic evidence to support the majority’s interpretation of “investment counselors,” but there is ample evidence to suggest that the term should be “interpreted broadly” in order to “allow[] the policy to be as flexible as possible.”
The majority, undeterred by the lack of supporting evidence, nevertheless opines that “counselor” unambiguously and as a matter of law does not include “one who is ... the disclosed agent of a seller.” I do not think that the term must be read so narrowly as a matter of law, and neither did the district court: “Even though Morgan Stanley was acting as agent for Sis-corp in the underlying transactions ... it is possible that Morgan Stanley was acting as an ‘investment counselor’ to TBC and Whitestone as well.” Id. at 611. As the majority notes, “[a] ‘counselor’ is one who gives advice, regardless of whether a fee is paid.” Whether or not Morgan Stanley was acting as an agent,' it was undeniably giving advice. Again, I rely on findings of the district court, which suggest that Morgan Stanley did not present the Siscorp investment indiscriminately to potential investors, but rather presented the investment to Whitestone and TBC because it believed that the investment would suit them. Specifically, the district court found that “Morgan Stanley was aware of the investment needs of both Whitestone and TBC” and that “its goal was to try to present them with investments that it believed would fit the banks’ portfolios.” Id. at 613; see also id. at 612 (Morgan Stanley’s role was to present Whitestone “with investments that ... fit its portfolio.”); id. (“Morgan Stanley only presents [investments such as this one] to the customer if it fits [the customer’s] parameters and interests.” (alterations in original) (internal quotation marks omitted)). The district court went on to say that Morgan Stanley did so in order “to facilitate sales,” but regardless of motive the point remains that Morgan Stanley was recommending an investment to Whitestone and TBC that Morgan Stanley believed would fit the banks’ portfolios.
I believe that the term “investment counselors” is ambiguous and that Morgan Stanley has offered a plausible interpretation within the range of possible meanings. Because the district court erroneously imposed the burden of proof on Morgan Stanley to prove its interpretation of this ambiguous term, see id. at 608, I would vacate and remand to the district court the TBC and Whitestone claims either to de*283termine correctly the meaning of the term in light of the available extrinsic evidence or to apply contra proferentem.