Notice: This opinion is subject to formal revision before publication in the
Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify
the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 9, 2004 Decided May 7, 2004
No. 03-7075
NATIONAL RAILROAD PASSENGER CORPORATION,
APPELLANT
v.
LEXINGTON INSURANCE COMPANY, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 01cv01815)
William G. Ballaine argued the cause and filed the briefs
for appellant.
Frederick J. Wilmer argued the cause for appellees. With
him on the brief was Michael H. McConihe.
Before: SENTELLE, TATEL and ROBERTS, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
SENTELLE, Circuit Judge: This is an insurance-coverage
suit the National Railroad Passenger Corporation, commonly
known as ‘‘Amtrak,’’ brought against several of its ‘‘excess
liability’’ insurers. The case is in federal court because
Amtrak is a federal corporation and the federal government
owns more than one-half of its stock. 28 U.S.C. § 1349.
Amtrak was held liable for and paid a personal injury judg-
ment of $25 million. Amtrak’s suit seeks reimbursement for
much of this sum from the insurers who insured Amtrak for
personal-injury liability in excess of $10 million. The sole
policy under which Amtrak is attempting to recover in this
action was in effect from 1997–1998. The insurers moved for
summary judgment, primarily on the ground that the plain
terms of the policy allocate Amtrak’s claim not to the 1997–98
policy, but rather to a different, less generous excess liability
policy in effect from 1996–1997. The district court held that
Amtrak could not recover under the 1997–98 policy and
therefore granted the insurers summary judgment. We
agree with the district court, hold that Amtrak may not
recover under the 1997–98 policy, and affirm the district
court’s judgment. We express no view on whether Amtrak is
entitled to reimbursement under the 1996–97 policy.
I.
Two sets of Amtrak’s ‘‘excess liability’’ insurance policies lie
at the core of this dispute. Both insured Amtrak against
liability for personal-injury claims in excess of $10 million.
The first set covered the policy period October 1, 1996,
through September 30, 1997; the second covered the period
October 1, 1997, through September 30, 1998. Presumably to
spread the risk, multiple insurers provided coverage under
these policies, and the parties agree that the language of the
1997–98 policy in effect between Amtrak and each individual
insurer is identical in all respects relevant to this appeal (we
thus refer to that common language as the ‘‘1997–98 policy’’).
The 1997–98 policy was titled a ‘‘claims-made liability poli-
cy.’’ ‘‘Claims-made’’ is the term generally used to describe
insurance policies under which the insurer agrees to indemni-
3
fy the insured party against all claims made during the period
of the policy, regardless whether the incident that gave rise
to the claim occurred during the policy term. Black’s Law
Dictionary 809 (7th ed. 1999). The 1997–98 policy, however,
had, in all-capital letters at the top of the policy, the following
qualification:
THIS IS AN EXCESS LIABILITY CLAIMS MADE
POLICY WHICH IS NOT SUBJECT TO THE TERMS
AND CONDITIONS OF ANY OTHER INSURANCE
AND CONTAINS PROVISIONS WHICH MAY BE
DIFFERENT FROM THOSE OF ANY OTHER IN-
SURANCE.
IT SHOULD BE READ CAREFULLY BY THE IN-
SURED.
The scope of the 1997–98 policy’s basic coverage was de-
fined nominally in claims-made terms. In particular, the
policy provided that the insurers agreed
subject to the Insuring Agreements, Exclusions, Condi-
tions, Definitions and Declarations contained in this Poli-
cy, to indemnify [Amtrak] TTT for damages in respect of
a Claim which is first made in writing against [Amtrak]
during the period of this Policy [October 1, 1997, though
September 30, 1998] TTT resulting from an Accident.
The term ‘‘Accident,’’ however, was a term of art that the
policy defined. Eleven pages later, in the definitions portion
of the policy, the term ‘‘Accident’’ was defined as
an event which first commences at a specific time after
the retroactive date [October 1, 1995] and prior to the
expiry date [September 30, 1998] and of which [Am-
trak’s] Claim Agent first becomes aware during the
Policy Period [October 1, 1997, through September 30,
1998] and up to 120 days thereafter.
The policy’s definitions section also explicitly defined
‘‘Claim.’’ That term was defined as ‘‘that part of any written
demand received by [Amtrak] for damages covered by this
Policy, including the service of suit, institution of arbitration
proceedings or receipt of an attorney’s lien.’’
4
The event that gave rise to this coverage dispute occurred
on August 29, 1997, when Kimberly Alcorn was seriously
injured in a railroad crossing automobile accident in Mis-
souri. See Alcorn v. Union Pac. R.R. Co., 50 S.W.3d 226,
231 (Mo. 2001). Union Pacific Railroad Company owned and
operated the crossing, but Amtrak had contractually agreed
to indemnify Union Pacific for any liability arising out of
such accidents. Alcorn brought a personal-injury action
against Amtrak and Union Pacific in Missouri state court;
the indemnification agreement meant that Amtrak was fully
responsible for Union Pacific’s liability. The jury awarded
Alcorn $40 million in compensatory damages and $120 million
in punitive damages, but the trial court remitted the compen-
satory damage award to $25 million and the punitive award
to $50 million. Id. On appeal, the Missouri Supreme Court
struck down the punitive damage award entirely, but upheld
the remitted compensatory award. Id. at 247–49.
The parties agree that Amtrak first learned of the event by
a telephone call placed to one of its claim agents on Septem-
ber 2, 1997. Alcorn did not serve Amtrak with her suit,
however, until January 20, 1998. Pursuant to its operating
agreement with Union Pacific, Amtrak handled the defense of
the litigation.
After Amtrak paid the $25 million judgment, it sought
reimbursement from its insurers under the 1997–98 policy.
The insurers refused to cover the accident under that policy.
In response, Amtrak sued them in federal district court
seeking coverage. The insurers moved for summary judg-
ment, claiming that the policy entitled them to treat the
Alcorn claim as having arisen at the time Amtrak’s claim
agent became aware of the accident, September 2, 1997, less
than a month before the 1997–98 policy period began. Am-
trak took the position that the claim arose instead when
Alcorn served her lawsuit on Amtrak, January 20, 1998,
during the 1997–98 policy period—and therefore that the
1997–98 policy covered the Alcorn claim. The district court
agreed with the insurers and granted them summary judg-
ment. This appeal followed.
5
II.
The only issue we need address in this case is whether the
language of the 1997–98 policy covers the Alcorn claim. The
parties agree that under either District of Columbia or Mis-
souri law, the only two jurisdictions whose law potentially
could apply in this case, we must follow the plain language of
the insurance agreement unless that language is ambiguous.
Because, as we explain more fully below, this rule of decision
is sufficient to dispose of this case, we need not delve into
choice of law issues, as there is no conflict of law for this
Court to resolve. See Cruz v. Am. Airlines, Inc., 356 F.3d
320, 331–32 (D.C. Cir. 2004) (noting same). We should affirm
the district court’s grant of summary judgment if we believe
the court was correct that the insurers are entitled to judg-
ment, viewing the facts in the light most favorable to the
nonmoving party. Id. at 328.
The key language is the policy’s basic coverage provision,
which, again, provided that the insurers agreed
subject to the Insuring Agreements, Exclusions, Condi-
tions, Definitions and Declarations contained in this Poli-
cy, to indemnify [Amtrak] TTT for damages in respect of
a Claim which is first made in writing against [Amtrak]
during the period of this Policy [October 1, 1997, though
September 30, 1998] TTT resulting from an Accident.
Amtrak argues that the Alcorn claim ‘‘unquestionably’’ falls
within this provision, because Alcorn served Amtrak with her
suit on January 20, and that was her first written demand for
payment. Amtrak infers from this fact that her claim was
‘‘first made in writing’’ at that date, during the 1997–98 policy
period of October 1, 1997, through September 30, 1998, and
therefore is covered by the 1997–98 policy.
Amtrak’s argument is wrong. The policy did not, as Am-
trak’s argument suggests, cover all claims first made in
writing during the policy period. Instead, the policy covered
claims first made in writing during the policy period ‘‘result-
ing from an Accident.’’ This distinction makes all the differ-
ence in this case, because the Alcorn claim did not result from
6
an ‘‘Accident,’’ and thus was not covered under the plain
terms of the 1997–98 policy.
The definition of the term ‘‘Accident’’ in the policy makes
this conclusion clear. ‘‘Accident,’’ once again, was defined as
an event which first commences at a specific time after
the retroactive date [October 1, 1995] and prior to the
expiry date [September 30, 1998] and of which [Am-
trak’s] Claim Agent first becomes aware during the
Policy Period [October 1, 1997, through September 30,
1998] and up to 120 days thereafter.
(Emphasis added.) The Alcorn accident was not an ‘‘Acci-
dent’’ within the meaning of this provision. It is undisputed
that Amtrak’s claim agent first became aware of that event on
September 2, 1997, nearly a month before the 1997–98 policy
period began. Therefore, the policy did not cover the Alcorn
claim. Amtrak is not entitled to coverage under the policy.
The district court was therefore correct that the insurers are
entitled to judgment as a matter of law.
Amtrak’s argument to the contrary is not persuasive. Am-
trak’s primary argument, in a nutshell, is that the insurance
agreement is ambiguous as to whether the Alcorn claim is
covered, and that in view of the generic ‘‘claims-made’’ nature
of the policy, we should read the policy to cover the Alcorn
claim, as that claim was ‘‘made’’ during the policy period. We
are willing to assume, without deciding, that Amtrak would be
the beneficiary of any such ambiguity were one present in the
policy. But the policy is anything but ambiguous. The
definition of ‘‘Accident’’ could hardly be more clear that
Alcorn’s claim did not result from an accident in the special
sense that word is used in the insurance agreement. Thus,
we do not, as Amtrak colorfully puts it, ‘‘proceed down a
coverage rabbit hole into a wonderland where indemnity
coverage under the 1997–98 policies turns out not to be ‘in
respect of a Claim which is first made in writing against the
Insured during the period of this Policy.’ ’’ We hold instead
that even though the Alcorn claim was a claim first made in
writing against Amtrak during the policy period, it did not
7
result from an ‘‘Accident’’ within the meaning of the policy
and thus was not covered.
III.
For the foregoing reasons, we affirm the judgment of the
district court.