Eure v. Norfolk Shipbuilding & Drydock Corp.

PRESENT: All the Justices

LOUISE ROBERTS EURE
OPINION BY
v. Record No. 011633 JUSTICE DONALD W. LEMONS
April 19, 2002
NORFOLK SHIPBUILDING & DRYDOCK
CORPORATION, INC., ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge

In this appeal, we consider whether the trial court erred

in finding the language of an agreement to provide health care

coverage to Louise Roberts Eure (“Mrs. Eure”) unambiguous and in

not considering parol evidence to determine the intent of the

parties to the agreement. We further consider whether the trial

court properly dismissed a holding company, United States Marine

Repair, Inc., (“U.S. Marine Repair”) as a party in a suit

against its subsidiary, Norfolk Shipbuilding & Drydock

Corporation, Inc. (“Norshipco”).

I. Facts and Proceedings Below

Mrs. Eure entered into an agreement and general release

(the “Agreement”) with Norshipco on April 3, 1992. The

Agreement was part of a settlement of a debt owed to Norshipco

by Charles H. Eure, Jr., Mrs. Eure’s deceased husband. As part

of the Agreement, Mrs. Eure agreed to give up certain valuable

rights and assets owed to her by Norshipco, and Norshipco agreed

to provide Mrs. Eure with health care coverage at Norshipco’s

expense for the remainder of her life.
 Paragraph 2 of the Agreement provides for Mrs. Eure’s

health care coverage and states in pertinent part:

Mrs. Eure will be afforded health care at
Norshipco’s expense throughout her
remaining lifetime, under the existing
Norshipco health plan and any future
enhancements available to key executives,
or any replacement plan which provides to
her coverage substantially equivalent to
that which would be available if Mr. Eure
were living and holding office as
President of Norshipco.

At the time the Agreement was made, Mrs. Eure was receiving

benefits under two plans. Norshipco provided basic medical

insurance through Blue Cross, 1 and also provided an “Officers’

Medical Expense Reimbursement Plan” (“reimbursement plan”) that

paid for certain expenses Blue Cross did not cover.

U.S. Marine Repair acquired Norshipco in October of 1998.

Mrs. Eure subsequently received a letter from John Humphreys of

Norshipco informing her that as of December 15, 1998, the

reimbursement plan was being terminated for all officers.

On February 18, 2000, Mrs. Eure filed an amended motion for

declaratory judgment against both Norshipco and U.S. Marine

Repair. She requested that the trial court declare:

[T]hat the coverage promised [to her]
under the provisions of paragraph 2 of the
Agreement is to be determined by the
coverage in effect at the time of the
Agreement, and not be diminished or

1
The basic coverage provider was subsequently changed to
Sentara.

2
 discontinued in part simply because the
executive health plan at that time has
subsequently been discontinued by
Defendants.

Norshipco filed a motion for summary judgment and alleged

that paragraph 2 of the Agreement was clear and unambiguous;

therefore, the trial court should not consider parol evidence

when interpreting the Agreement. In her brief in opposition to

Norshipco’s motion for summary judgment, Mrs. Eure asserted that

the Agreement “provides her with the medical coverage which was

in effect at the time of the Agreement and that the coverage

cannot be diminished or discontinued.” She maintained that

“the agreement [was] clear in this respect.” The trial court

denied Norshipco’s motion for summary judgment because it found

that the Agreement was ambiguous. Norshipco subsequently

renewed its motion for summary judgment, claiming that

“discovery has established that the Plaintiff cannot point to

any parol evidence or witness testimony which would clarify the

meaning beyond the written words of the instrument.” The trial

court again overruled the motion.

U.S. Marine Repair filed a demurrer, asserting that it

bought the stock of Norshipco on September 30, 1998, and “in

essence, is a holding company of the stock of Norshipco as an

investor.” U.S. Marine Repair explained that Norshipco remains

3
a freestanding legal entity, and U.S. Marine Repair was not a

party to the Agreement between Mrs. Eure and Norshipco.

The trial court allowed the introduction of parol evidence

at trial to determine the intent of the parties with respect to

the health care benefits clause of the Agreement. E. L. Carlyle

(“Carlyle”), who was Senior Vice President and Chief Financial

Officer of Norshipco in 1992 and signed the Agreement, testified

on behalf of Mrs. Eure. In response to the question whether the

health care benefits were “supposed to be retractable by

Norshipco,” Carlyle testified that he “believe[d] it was the

intent that Mrs. Eure was to have these benefits for the rest of

her life.”

Furthermore, during cross-examination of Mrs. Eure,

Norshipco admitted two letters into evidence. The first was a

letter dated March 23, 1992, to Robert C. Nusbaum (“Nusbaum”),

Mrs. Eure’s attorney, from Walter B. Martin, Jr. (“Martin”),

Norshipco’s attorney. The letter outlined the “terms and

conditions of the settlement” between Mrs. Eure and Norshipco.

With respect to the health care coverage, the letter stated that

“Mrs. Eure will be maintained under the Norshipco health care

plan, or a plan providing equal coverage, until her death.” The

second letter was the response from Nusbaum to Martin, dated

March 27, 1992. In this letter, Nusbaum informed Martin that

“Mrs. Eure and I interpret paragraph #2 of your March 23 letter

4
to require the continuation of coverage of the kind now in

force, or the substantial equivalent.”

Finally, Ellen Vinck (“Vinck”), Director and Vice President

for U.S. Marine Repair, testified as to her interpretation of

the Agreement. Vinck reviewed the Agreement at the time U.S.

Marine Repair terminated the reimbursement plan. She testified

that her “interpretation of the agreement was that Mrs. Eure

should have medical coverage at any time as covered by the

current plan, and she does. [Her coverage] was not canceled.”

Vinck further testified that she believed that “the officers

medical reimbursement plan [was] a perk.” She did not believe

that canceling the reimbursement plan violated the Agreement

because the basic coverage, under Sentara, was not canceled.

In a letter opinion, the trial court recognized that it had

“previously held the [health care benefits] clause to be

ambiguous, but on further consideration,” the trial court did

“not believe it” was ambiguous; therefore, it did not consider

the parol evidence in reaching its decision. The trial court

interpreted the medical benefits provision of the Agreement as

follows:

The clause at issue allows a change in
benefits but it must be under a
“replacement plan which provides to her
coverage substantially equivalent to that
which would be available if Mr. Eure were
living and holding office as President of
Norshipco.” I find that the clause refers

5
 to future events, and that it ought to be
construed as if Mr. Eure were the president
of Norshipco at the time the replacement
plan is provided. The term “replacement
plan” in this context necessarily suggests
a possible future event. The phrase “would
be available” when used with “replacement
plan” indicates a possible future
condition. If the intent had been to
require that a replacement plan be
substantially equivalent to present
coverage, a present tense verb, not a
conditional tense, would have been used.
Such an intent could have been stated
“. . . coverage substantially equivalent to
that which she now has.”

Accordingly, the trial court held that Norshipco was not

required to continue to provide Mrs. Eure with the health care

benefits under the company’s former reimbursement plan after the

date that plan was terminated. The trial court further held

that U.S. Marine Repair was not liable for the debts of

Norshipco because there was “insufficient evidence to apply the

alter ego doctrine.” Mrs. Eure subsequently filed a motion to

reconsider, which the trial court overruled. On April 25, 2001,

the trial court entered a decree memorializing its decision.

Mrs. Eure appeals the adverse ruling of the trial court.

On appeal, Mrs. Eure argues that the language in the

Agreement was ambiguous and the trial court should have

considered parol evidence to determine the intent of the

parties. She further argues that the trial court erred in

ruling that Norshipco was not required to provide her with

6
benefits “equivalent” to those provided under the former

reimbursement plan. Finally, she claims that the trial court

erred in dismissing U.S. Marine Repair as a party because

Norshipco has no board of directors and operates under the

direction of the chief operating officer of U.S. Marine Repair.

Norshipco maintains that the Agreement is unambiguous and

the trial court correctly interpreted its plain meaning.

Furthermore, Norshipco asserts that the trial court properly

dismissed U.S. Marine Repair as a party because Mrs. Eure failed

to demonstrate that Norshipco was merely the “alter ego” of the

corporation.

II. Standard of Review

This appeal presents questions of both law and fact. The

question whether the language of a contract is ambiguous is a

question of law which we review de novo. Langman v. Alumni

Ass’n of the Univ. of Va., 247 Va. 491, 498, 442 S.E.2d 669, 674

(1994). Accordingly, on appeal we are not bound by the trial

court’s interpretation of the contract provision at issue;

rather, we have an equal opportunity to consider the words of

the contract within the four corners of the instrument itself.

Wilson v. Holyfield, 227 Va. 184, 187-88, 313 S.E.2d 396, 398

(1984).

The question whether the plaintiff introduced sufficient

evidence to hold a parent company liable for the debts of its

7
subsidiary is a question of fact. Beale v. Kappa Alpha Order,

192 Va. 382, 399, 64 S.E.2d 789, 798 (1951). Accordingly, we

will only reverse the finding of the trial court if it is

plainly wrong or without evidence to support it. W.S. Carnes,

Inc. v. Board of Supervisors, 252 Va. 377, 385, 478 S.E.2d 295,

301 (1996).

III. Analysis

As a preliminary matter, the dissent maintains that

consideration of Mrs. Eure’s argument concerning parol evidence

is barred by application of Rule 5:25. Even Norshipco does not

make this argument.

In Mrs. Eure’s opposition to Norshipco’s motion for summary

judgment she first argued that the language of the Agreement was

unambiguous; however, she further asserted that if the trial

court found the Agreement to be ambiguous, then she should be

permitted to introduce parol evidence to clarify the intent of

the parties. The trial court considered the issue of ambiguity,

twice ruled that the language of the Agreement was ambiguous,

and permitted the introduction of parol evidence at trial before

reversing its prior rulings and finding the language of the

Agreement unambiguous. On appeal, Mrs. Eure maintains that the

language of the Agreement is ambiguous and that the unrefuted

parol evidence introduced at trial supports her interpretation

of the Agreement.

8
 The purpose of Rule 5:25 is “to protect the trial court

from appeals based upon undisclosed grounds, to prevent the

setting of traps on appeal, to enable the trial judge to rule

intelligently, and to avoid unnecessary reversals and

mistrials.” Fisher v. Commonwealth, 236 Va. 403, 414, 374

S.E.2d 46, 52 (1988), cert. denied, 490 U.S. 1028 (1989). None

of the aforementioned concerns exists in the present case.

Having ruled on the issue three times, the trial court clearly

had the opportunity “to rule intelligently” on the issue. This

case hardly presents an appeal on undisclosed grounds. Rule

5:25 does not bar Mrs. Eure from asserting before this Court

that the language in the Agreement is ambiguous and that the

trial court should have considered the parol evidence presented

below.

When an agreement is plain and unambiguous on its face, the

Court will not look for meaning beyond the instrument itself.

Ross v. Craw, 231 Va. 206, 212, 343 S.E.2d 312, 316 (1986).

However, when a contract is ambiguous, the Court will look to

parol evidence in order to determine the intent of the parties.

Aetna Cas. and Sur. Co. v. Fireguard Corp., 249 Va. 209, 215,

455 S.E.2d 229, 232 (1995). Contract language is ambiguous when

“it may be understood in more than one way or when it refers to

two or more things at the same time.” Granite State Ins. Co. v.

Bottoms, 243 Va. 228, 234, 415 S.E.2d 131, 134 (1992). However,

9
“[a] contract is not ambiguous merely because the parties

disagree as to the meaning of the terms used.” TM Delmarva

Power, L.L.C. v. NCP of Virginia, L.L.C., 263 Va. 116, 119, 557

S.E.2d 199, 200 (2002).

On appeal, Mrs. Eure maintains that the Agreement “means

that for the remainder of her lifetime, she would receive, at

Norshipco’s expense, the benefits existing at the time of the

execution of the contract, as well as any additional benefits

Norshipco might subsequently add to its coverage.” Norshipco

argues that “the replacement plan contemplated by the Agreement

was one which Mr. Eure would be entitled to if he were living

and holding office as the President of Norshipco at the time of

the contemplated replacement of the plan.”

In order to determine whether the language is ambiguous, we

look at the words at issue within the four corners of the

Agreement itself. Wilson, 227 Va. at 188, 313 S.E.2d at 398.

Upon independent review of the Agreement, we hold that the

Agreement is ambiguous on its face.

The language used in the health care provision can be

interpreted in more than one way. The Agreement provides health

care coverage to Mrs. Eure under the existing plan, “or any

replacement plan which provides to her coverage substantially

equivalent to that which would be available if Mr. Eure were

living and holding office as President of Norshipco.” By its

10
terms, the clause could either mean that any replacement plan

coverage must be equal to the coverage being provided when the

Agreement was signed, or that any replacement plan coverage must

be equal to that which Mr. Eure would receive as President of

Norshipco at the time any replacement plan is instituted.

Accordingly, the clause providing health care benefits is

ambiguous and the trial court erred in failing to consider parol

evidence.

We note that, in the same paragraph, a further ambiguity

appears. Norshipco assumes the responsibility for providing

“reasonable security for the ongoing performance of its

obligations hereunder after the liquidation or dissolution of

Norshipco or any change of control.” The word “hereunder”

modifies “obligations,” but the phrase does not explain to which

obligations it refers. The clause can be interpreted to provide

security for the health care benefits obligation which appears

in the same paragraph, or it can be interpreted to provide

security for the deferred compensation payments which are

included in paragraph 1 of the Agreement, or it can be

interpreted to provide security for both health care benefits

and deferred compensation benefits. If the obligation to

provide security for ongoing performance of obligations is

concerning health care benefits, there is an obvious conflict in

the juxtaposition of language that posits Mr. Eure as President

11
of Norshipco under circumstances where it is contemplated that

Norshipco is liquidated or dissolved. These different

interpretations and inherent conflicts demonstrate ambiguity in

the Agreement.

Having determined that the language in the Agreement is

ambiguous, we will next consider the parol evidence presented at

trial. In response to the question whether Mrs. Eure’s benefits

could be retracted by Norshipco, Carlyle testified that “it was

the intent that Mrs. Eure was to have these benefits for the

rest of her life.” Furthermore, two letters written prior to

the execution of the Agreement indicated that Mrs. Eure was to

receive coverage equal to “the kind . . . in force,” at the time

the Agreement was signed. The only evidence that supported

Norshipco’s interpretation of the Agreement was the testimony of

Vinck. However, Vinck was not a party to the Agreement;

therefore, her testimony consisted solely of her personal

interpretation of the Agreement and did not reveal the intent of

the parties at the time the Agreement was entered. Accordingly,

the parol evidence in favor of Mrs. Eure’s interpretation of the

Agreement was unrefuted at trial.

On this record, we hold that the trial court erred in

finding the language of the Agreement unambiguous and in failing

to consider the parol evidence that was presented. At trial,

both parties had the opportunity to introduce parol evidence.

12
In light of the unrefuted parol evidence in support of Mrs.

Eure’s interpretation of the Agreement, we hold that Norshipco

breached the Agreement when it terminated the reimbursement plan

benefiting Mrs. Eure.

Finally, Mrs. Eure argues that the trial court erred in

dismissing U.S. Marine Repair as a party. She claims that “U.S.

Marine offered no evidence to demonstrate that Norshipco was an

entity independent of U.S. Marine’s control.” Mrs. Eure has

misstated the allocation of the burden of proof on this issue.

In Beale v. Kappa Alpha Order, 192 Va. at 396-97, 64 S.E.2d

at 797, we stated that:

‘Before the corporate entity may be
properly disregarded and the parent
corporation held liable for the acts of
its subsidiary . . . it must be shown not
only that undue domination and control was
exercised by the parent corporation over
the subsidiary, but also that this control
was exercised in such a manner as to
defraud and wrong the complainant, and
that unjust loss or injury will be
suffered by the complainant as the result
of such domination unless the parent
corporation be held liable.’

(Citation omitted). The separate corporate entities of

corporations will be observed by the courts unless a corporation

is shown to be the “adjunct, creature, instrumentality, device,

stooge, or dummy of another corporation.” Id. at 399, 64 S.E.2d

at 798. Generally, courts will observe the separate corporate

entity, even though one corporation “may dominate or control

13
another, or may treat it as a mere department [or]

instrumentality . . . and courts will disregard the separate

legal identities of the corporation only when one is used to

defeat public convenience, justify wrongs, protect fraud or

crime of the other.” Id. (citation omitted). Accordingly, Mrs.

Eure had the burden to provide facts sufficient to demonstrate

that Norshipco was merely the “alter ego” of U.S. Marine Repair

in order for the trial court to disregard the corporate form and

hold U.S. Marine Repair liable for the obligations of Norshipco.

To support her assertion that U.S. Marine Repair controls

Norshipco, Mrs. Eure relies upon the deposition testimony of

Alexander Krekich, a senior officer at U.S. Marine Repair, who

stated that Norshipco does not have a board of directors. Mrs.

Eure also points to an application for a letter of credit for

her benefit, wherein the applicant is listed as “United States

Marine Repair, Inc. for acct of Norfolk Shipbuilding & Drydock

Corporation.” According to Mrs. Eure, if U.S. Marine Repair was

not controlling Norshipco, “there would be no reason for it to

be involved in obtaining the letter of credit” for Mrs. Eure. 2

The evidence presented by Mrs. Eure was not sufficient to

allow the trial court to disregard the corporate form. Mrs.

2
We note that the evidence presented at trial demonstrated
that U.S. Marine Repair is “strictly the holding company” of
Norshipco, its subsidiary. Furthermore, U.S. Marine Repair
never assumed the obligations of Norshipco.

14
Eure failed to present evidence that Norshipco was the “alter

ego” of U.S. Marine Repair; therefore, the trial court did not

err in dismissing U.S. Marine Repair as a party when the

underlying lawsuit concerned an Agreement entered into between

Mrs. Eure and Norshipco.

In its Final Decree, the trial court rendered judgment in

favor of U.S. Marine Repair, which judgment will be affirmed.

The trial court declared that the Agreement does not require

Norshipco to continue to provide benefits to Mrs. Eure under its

former Officers’ Medical Expense Reimbursement Plan, which

declaration shall be reversed and judgment will be entered in

favor of Mrs. Eure. The remaining provisions of the Final

Decree are not before us on appeal and will remain unaffected by

our decision.

Affirmed in part,
reversed in part,
and final judgment.

JUSTICE LACY, with whom JUSTICE KEENAN and JUSTICE KINSER join,
dissenting.

I respectfully dissent from the majority's opinion in this

case on procedural and substantive grounds. The primary issue

raised by Mrs. Eure in this appeal is whether the contract

provision at issue was ambiguous. At trial Mrs. Eure did not

assert that the provision was ambiguous, but asserted the

15
opposite – that the provision was unambiguous. Under well-

established rules, Mrs. Eure is not entitled to consideration of

this issue by this Court. I also conclude that the provision at

issue, on its face and when read in context, is not ambiguous

and that the trial court correctly interpreted and applied the

plain meaning of the provision. For these reasons, I would

affirm the judgment of the trial court.

In her first assignment of error, Mrs. Eure asserts that

the trial court erred by finding that the Agreement was

unambiguous and that it should have considered parol evidence

when determining whether, under the Agreement, Mrs. Eure was

entitled to continue receiving benefits under the former

Officers' Medical Expense Reimbursement Plan. While the parties

clearly disagreed on the interpretation of the Agreement at the

trial court level, Norshipco correctly asserts that at all times

Mrs. Eure contended that the Agreement was unambiguous and at no

point did Mrs. Eure assert before the trial court that the

Agreement was ambiguous.

Mrs. Eure's motion for declaratory judgment states that,

"[t]he language bargained for and contained in [the clause at

issue] makes it clear beyond reasonable dispute that no

diminution of coverage would occur." In her opposition to

Norshipco's motion for summary judgment, Mrs. Eure asserted that

the language of the Agreement clearly supports her position, but

16
that "[t]o the extent this Court rules that the language in the

Agreement is less than clear, Plaintiff is entitled to present

evidence which clarifies the intent of the parties." This is

not an assertion that the provision is ambiguous, but only that,

if the trial court concluded it was ambiguous, the parol

evidence rule should be utilized to allow evidence of intent.

At trial, Mrs. Eure continued to argue that "there is only one

permissible interpretation of the language here."

In its opinion letter, the trial court stated that the

issue was controlled by the last clause of the first sentence in

paragraph two and noted that "[e]ach of you claims the clause is

unambiguous." Finally, even after the trial court rendered its

decision that the Agreement was unambiguous, Mrs. Eure did not

challenge the trial court's characterization of her position as

claiming the clause was unambiguous, but argued in her motion to

reconsider that the trial court failed "to recognize that [the

language at issue] clearly recognizes Mrs. Eure's right." At no

time prior to the submission of her assignments of error in this

Court, did Mrs. Eure argue that the relevant clause was

ambiguous.

The long-standing rule in Virginia is that parties may not

take successive positions in the course of litigation that are

inconsistent with each other or mutually contradictory. Smith

v. Settle, 254 Va. 348, 354, 492 S.E.2d 427, 431 (1997). " 'A

17
[litigant] shall not be allowed to approbate and reprobate at

the same time.' " Leech v. Beasley, 203 Va. 955, 962, 128

S.E.2d 293, 298 (1962). It is also a fundamental rule of this

Court that we will only consider questions which were presented

to the trial court "with reasonable certainty" at the time of

the trial court's ruling. Rule 5:25.

Mrs. Eure's position at trial regarding ambiguity of the

provision at issue and the position she advances here are not

only inconsistent with each other, they are mutually

contradictory. Such approbation and reprobation, along with her

failure to argue at any time before the trial court that the

provision was ambiguous, should be fatal to her ability to argue

before this Court that the relevant clause was ambiguous under

the well-established principles recited above.

I also disagree with the majority's determination that the

language at issue is ambiguous. In 1992, following the death of

Mr. Eure, Norshipco, Norshipco Financial Corporation, and Mrs.

Eure executed an agreement in settlement of a more than $3

million debt owed by Mr. Eure to Norshipco. The settlement

agreement included provisions relating to retirement benefits,

stock assignments, transfers and reissues, and, as relevant

here, health insurance benefits. The provision at issue states:

Mrs. Eure will be afforded health care at
Norshipco's expense throughout her remaining
lifetime, under the existing Norshipco health

18
 plan and any future enhancements available to key
executives, or any replacement plan which
provides to her coverage substantially equivalent
to that which would be available if Mr. Eure were
living and holding office as President of
Norshipco.

(emphasis added). The majority concludes, as Mrs. Eure argues

here, that the emphasized clause is ambiguous because it "could

either mean" that a new plan had to be "equal to the coverage

being provided when the Agreement was signed" or that it had to

be "equal to that which Mr. Eure would receive as President of

Norshipco at the time" a new plan was instituted. However,

neither Mrs. Eure nor the majority offers any analysis of the

clause itself that supports the construction advocated by Mrs.

Eure and adopted by the majority.

In her brief, Mrs. Eure contends that the "sense" of the

disputed clause was that if Norshipco "reduced its coverage, she

would be entitled to receive benefits substantially equivalent

to those existing at the time of the execution of the contract."

Further, the disputed clause "[s]pecifically" means that if the

reimbursement plan which was in existence at the time of the

execution of the settlement agreement was terminated, Norshipco

was required to "provide her with equivalent replacement

coverage."

This "sense" of the clause, however, is never explained in

terms of the language contained in the clause. Rather, Mrs.

19
Eure argues that the fallacy of Norshipco's position is not that

Norshipco's interpretation is erroneous, but that "the words on

which they rely refer only to a replacement plan, and there was

none." This argument addresses a factual issue, that is,

whether the substitution of a new health care plan which

eliminated the reimbursement option was or was not a replacement

plan. It does not address the issue of ambiguity, and the

factual issue it raises was resolved by the trial court when

that court determined that the word "plan" as used in this

provision was used "collectively, that is, to mean all of the

health benefits Norshipco provides Mrs. Eure." Mrs. Eure has

not challenged this finding on appeal.

Analysis of the provision as written does not support the

construction advanced by Mrs. Eure in a number of particulars.

Mrs. Eure's construction is based on the theory that the

reference to Mr. Eure being president of Norshipco refers back

to 1992. However, if such reference back is to successfully

support the construction advanced by Mrs. Eure, the clause would

have to be amended to read "or any replacement plan which

provides to her coverage substantially equivalent to that which

would have been available if Mr. Eure were living and holding

office as President of Norshipco in 1992." Ambiguity cannot be

established based on the addition of language not contained in

the writing. See Kennard v. Travelers Protective Ass'n, 157 Va.

20
153, 157, 160 S.E. 38, 39 (1931) ("[c]ourts should not make

uncertain that which is certain, and they cannot make contracts

for the parties").

Furthermore, the first clause of the provision insures that

Mrs. Eure will receive medical care under the plan in effect at

the time of settlement plus any enhancements. If the second

clause means no more than that future benefits must be the same

as those provided in 1992, the second clause would be surplusage

because that requirement was already established in the first

clause.

The construction of the provision clearly reflects the

intent of the parties. The first clause establishes Mrs. Eure's

entitlement to lifetime health care benefits at Norshipco's

expense and measures the level of benefits she is to receive by

those available to a spouse of an officer of Norshipco under the

company's health care plan in existence in 1992 when the

Agreement was signed. The second clause establishes the level

of benefits which Mrs. Eure would be entitled to receive in the

event the company changed its health care plan by using the same

measure as in the first clause, that is, the health care

benefits that a spouse of an officer of Norshipco would receive

under the subsequent company plan. *

*
Mrs. Eure argues that such a construction would allow the
company to defeat her claim to medical coverage entirely by

21
 Finally, the majority concludes that ambiguity exists

because other portions of the provision contemplate the

potential dissolution of Norshipco in which case there would no

longer be a "president" of Norshipco. I submit that the

provision in issue is not rendered ambiguous by virtue of other

parts of paragraph two. The provision in issue addresses the

level of medical care benefits to which Mrs. Eure is entitled

under the agreement. The portions of the paragraph cited by the

majority address the requirement that Norshipco provide for

continuation of its performance responsibilities in the event

its corporate existence is terminated or altered. Those

provisions do not address the level of services it must provide.

For these reasons, I would affirm the judgment of the trial

court.

terminating medical coverage to the spouse of the company
president. That factual circumstance is not before the Court
and is not relevant to determining whether language in a
contract is ambiguous.

22