Lead Opinion
OPINION
Beretta U.S.A. Corporation (“Beretta”) appeals the district court’s award of summary judgment to The Federal Insurance Company (“Federal”) and Great Northern Insurance Company (“Great Northern”) in
I.
A.
The facts relevant to our inquiry are fully described in the ruling of the district court, embodied in its Memorandum of September 29, 2000, No. CCB-99-2798 (the “D. Ct. Memo.”). Both Federal and Great Northern issued annual commercial insurance policies (the “Primary Policies”) to Beretta, effective for the aggregate period from July 31, 1990, through December 31, 1999. The Primary Policies each provided, inter aha, that Federal and Great Northern would pay “damages the insured [Beretta] becomes legally obligated to pay by reason of liability imposed by law or assumed under an insured contract for: bodily injury or property damage ... caused by an occurrence; ... or personal injury ... or advertising injury.” J. A. 94, 220. Central to the controversy in this litigation is the “Products Completed Operations Hazard” exclusion (the “Exclusion”), found in each policy, which is defined to include, inter alia, “all bodily injury and property damage occurring away from premises you own or rent and arising out of your product ... except: products that are still in your physical possession.” J.A. 111, 237.
In addition to the Primary Policies, Federal and Great Northern also issued annual umbrella and excess policies to Beretta for the aggregate period from July 31, 1992, through December 31, 1999 (the “Umbrella Policies”). The Declaration page of each Umbrella Policy also contained, in hasc verba, the Exclusion, specifically stating that the Umbrella Policies did not provide coverage to Beretta for any liability arising out of the Exclusion.
Prior to initiating this litigation, Beretta notified both Federal and Great Northern that thirteen lawsuits had been filed against it — twelve being brought by municipal governments in various parts of the United States, and the thirteenth being a class action (the “Underlying Actions”). The Underlying Actions each allege, inter alia, that Beretta engaged in the “negligent marketing and distribution of guns and public nuisance, and seek to recover expenses allegedly incurred in treating and caring for people who have suffered gunshot injuries.” J.A. 9. Both Federal and Great Northern denied coverage to Beretta under the Primary Policies and the Umbrella Policies (the “Policies”). Beretta maintained that the denials of coverage were improper, and it sought a declaratory judgment awarding insurance coverage for the claims, except the product liability claims, made in the Underlying Actions (the “Claims”).
Upon consideration of the written submissions and oral argument, the district court awarded summary judgment to Federal and Great Northern. The court determined that the Claims involved bodily injury or property damage that occurred away from Beretta’s premises and that “arose out of’ Beretta’s product. Accordingly, it concluded that coverage of the Claims was precluded by the terms of the Exclusion, and that, under Maryland law, neither Federal nor Great Northern had any duty to defend or indemnify Beretta.
The parties agree that the first prong of the Exclusion is satisfied; that is, the damages sought in the Claims occurred away from Beretta’s premises. Thus, as the district court recognized, the central question for our consideration and determination is the meaning, under Maryland law, of the phrase “arising out of,” as contained in the Exclusion. Beretta contends that this phrase limits the scope of the Exclusion to allegations involving the dangerous and defective nature of Beretta’s products and its failure to warn of those dangers. Federal and Great Northern, in contrast, maintain that the Exclusion is not limited to the product liability claims.
II.
We must decide whether the district court erred in concluding that the Claims fell under the provisions of the Exclusion, and in granting summary judgment to Federal and Great Northern. Our standard for review is plenary; we review an award of summary judgment de novo. Dalton v. Capital Assocs. Indus., Inc.,
III.
A.
After deciding that Maryland law is controlling, see Assicurazioni Generali v. Neil,
In reaching its conclusion, the district court found instructive the EDP Floors decision of Maryland’s highest court. In EDP Floors, the Court of Appeals of Maryland interpreted a policy provision that excluded coverage for “bodily injury ... arising out of ... loading or unloading of [a truck].” EDP Floors,
if [the plaintiffs] bodily injury arose out of EDP’s employee’s unloading of the truck, then that injury is excluded from coverage. This is so regardless of whether the injury may also be said to have arisen out of other causes further back in the sequence of events, such as the employee’s consumption of alcohol,*254 or the employer’s negligent failure to supervise the employee. The exclusion also applies irrespective of the theory of liability by which [the plaintiff] seeks redress for his injury.
Id. at 688-89 (emphasis added).
Applying the reasoning of EDP Floors, the district court concluded that the Exclusion applies to the Claims because, regardless of whether the injuries involved could also be said to arise from Beret-ta’s negligent marketing and distribution of its products, the “but for” cause of the injuries in the Claims arose out of Beretta’s product. On appeal, Beretta asserts that the district court’s analysis is incorrect. It contends that Maryland law does not permit a court to look beyond the allegations in the Claims. As we have noted, the EDP Floors decision renders this position untenable, because “the theory of liability by which [the plaintiff] seeks redress” is irrelevant. Id. at 689.
B.
Next, Beretta maintains that the district court erred when it rejected Beretta’s contention concerning the Exclusion’s plain meaning. It asserts that, under Maryland law, the Exclusion, by its plain meaning, applies only to injuries caused by defective products, in that a reasonably prudent layperson would believe an injury arises out of a product only if a product defect causes the injury.
In analyzing that contention, it is first necessary to examine the language of the policy itself. As noted, the[Exclusion] excludes coverage for all bodily injury ... occurring away from premises you own or rent and arising out of your product.... Nothing in that language supports the proposition that the exclusion applies only to defective products.
D. Ct. Memo., at 13 (internal citations omitted). Moreover, the district court found additional support in Brazas Sporting Arms, Inc. v. American Empire Surplus Lines Insurance Co.,
C.
Finally, Beretta contends that the district court erred by not considering extrinsic evidence of the Exclusion’s meaning. The district court found no merit in this position because, under Maryland law, “[o]nly if a policy is ambiguous should the court consider extrinsic and parol evidence to determine the intention of the parties.” Id. at 9 (citing Sullins v. Allstate Ins. Co.,
Beretta has failed to demonstrate that the parties to the Policies intended the phrase “arising out of,” or the other provisions of the Exclusion, as having anything other than their usual, ordinary, and accepted meanings. Although Beretta asserts several separate bases in its effort to convince us otherwise, each misses the mark.
First, Beretta suggests the Exclusion is ambiguous because it has historically been interpreted by other courts, and understood in the insurance industry, to apply only to defective product and failure-to-warn claims, rather than negligent sale claims. While Beretta asserts that a number of decisions from other jurisdictions support its position,
Second, Beretta contends that the Exclusion’s title (Products Completed Operations Hazard) in and of itself creates ambiguity. However, to the extent the title of the Exclusion might be considered ambiguous, such a construction would be insufficient to render the Exclusion ambiguous. Bernhardt v. Hartford Fire Ins. Co.,
Third, Beretta maintains that the conflicting decisions from other jurisdictions concerning the scope of the Exclusion also constitute evidence of ambiguity. See supra note 5. In Maryland, however, a mere conflict in judicial interpretation is not dispositive on the issue of ambiguity, but is only a factor to be considered. Sullins,
IV.
Pursuant to the foregoing, we find no error in the district court’s interpretation and application of Maryland law. We accordingly adopt its well-reasoned decision, and we affirm. Beretta U.S.A. Corp. v. Federal Ins. Co.,
AFFIRMED.
Notes
. The Underlying Actions also assert product liability claims for Beretta's failure to make its firearms safe and to prevent foreseeable misuse because Beretta failed to use modern technology to incorporate safety devices that would prevent its firearms from being used by children and unauthorized persons. At oral argument, Beretta conceded that the product liability claims fall within the terms of the Exclusion, and thus are not covered by the Policies. There is accordingly no issue on appeal concerning coverage for product liability claims.
. The theories of liability asserted against the firearms distributor in Brazas were for negligent and willful misconduct in the distribution, marketing, and advertising of excessive numbers of firearms, which allegedly resulted in bodily injuries to the plaintiffs.
. In Massachusetts, the phrase "arising out of" denotes an intermediate standard of causation between proximate and "but for” causation. Brazas,
. In Brazas, the First Circuit concluded that ‘‘[w]here, as here, the language of the exclusion provision is unambiguous, the text should be given its plain meaning. In this case, the plain meaning of the exclusion is that it applies to all product-related injuries.” Brazas, 220 F.3d at 6.
. See, e.g., Scarborough v. N. Assurance Co. of Am., 718 F.2d 130, 136 (5th Cir.1983) (applying Louisiana law); Farm Bureau Mut. Ins. Co. of Arkansas, Inc. v. Lyon,
Concurrence Opinion
concurring in the judgment:
I concur in the judgment here, but I write separately because I think the case is closer than the majority acknowledges.
In the abstract, it is reasonable to contend, as appellant does, that the language “arising out of your product” in the exclusion applies only to traditional products liability actions. If an injury is inflicted by a person with a non-defective gun or knife, one would not normally think of the gun or knife as having inflicted the injury. Rather, one would typically view the person who misused the weapon as having inflicted the injury. That is, the injury would be said to have “arisen out of’ the wrongful act of the person, not the weapon itself.
In many jurisdictions, this would be a prevailing argument, and coverage for the insured manufacturer would lie. The question here is whether Maryland courts have interpreted the words “arising out of’ in such a manner as to sweep this argument away. Analytically, they have. It is only because Maryland assigns to the words “arising out of’ an extraordinary breadth that the exclusion can be interpreted as the district court did. The Maryland courts have interpreted “arising out of’ to express the expansive concept of but — for causation, and they have done this repeatedly and in a variety of different settings and contexts. See, e.g., Mass Transit Admin, v. CSX Transp., Inc.,
Secondly, if the adjective “defective” had been used to modify the noun “product,” the exclusion could likewise be interpreted in the manner that appellant suggests. The exclusion would then plainly be limited to traditional products liability suits. I do not believe, however, that courts possess the authority to add that word to the contract of insurance negotiated by the parties.
In sum, had another state’s law been controlling or had the exclusion contained