*1 appears if it defendant will be
prejudiced by joint a trial. As Court, Supreme “a district court grant
should a severance under Rule 14 CORPORATION, joint if there is a BERETTA serious risk U.S.A. Plaintiff-Appellant, compromise specific trial would trial defendants, right of one prevent jury making a reliable The FEDERAL COM- INSURANCE Zafiro, guilt about or innocence.” PANY; Great Northern Insurance U.S. S.Ct. 933. Liles fails to Company, Defendants-Appellees. point specific right to a trial that was compromised by joint Although trial. No. 00-2387. may played
Liles smaller role Appeals, United States Court conspiracy than some of the other defen- Fourth Circuit. dants, gives the record us no reason to jury believe that the could not sort out the Argued June differences between the defendants. Fur- Sept. Decided thermore, court instructed the jury to consider each separately defendant
and not allow the verdict as to one defen-
dant control the verdict as to another. “curfing] any
Such instruction assists in Id. prejudice.”
risk of
Accordingly, we conclude the dis-
trict court did not abuse its discretion
denying Liles’s motion to sever.
III. conclusion, we vacate sen- Jones’s resentencing
tence and remand for in ac- statutory
cordance with the maximum for least-punished object conspiracy
(distribution marijuana). In all other
respects, we affirm the convictions and
sentences of the defendants. PART,
AFFIRMED IN IN VACATED PART, AND REMANDED. Wilkinson, Judge, opin- filed an Chief concurring judgment.
ion *2 Anderson, Harckham, Sr., Kill Finley T. York, NY, Olick, P.C., appel- New for & lant. Constine, Hogan & Adrian
Jonathan DC, Hartson, L.L.P., ap- for Washington, pellees. Lewis, Daniel BRIEF: Richard P.
ON Olick, P.C., Anderson, Kill Healy, & J. NY; York, Gallagher, Michele A. New L.L.P., Olick, Anderson, Washing- Kill & Blue, ton, DC, Robert M. appellant. Hartson, L.L.P., Washington, Hogan & DC, appellees. WILKINSON, Judge, Chief
Before BEEZER, KING, Judge, and Circuit Judge of the United States Senior Circuit Circuit, Appeals for the Ninth Court sitting by designation.
OPINION PER CURIAM: (“Beretta”) Corporation Beretta U.S.A. award of sum- the district court’s appeals mary judgment to The Federal Insurance (“Federal”) Company and Great Northern Northern”) (“Great Company Insurance a dispute “Exclusion”), over insurance coverage. policy, Beret- found in each ta, include, alia, Maryland corporation, brought defined to inter “all diversity property damage occurring action the District of premises you insurers, or rent and seeking a declaration that own arising *3 product except: ... Northern, Federal and Great owed it a that are physical still duty, general liability and umbrella possession.” J.A. 237. policies, indemnify to defend and against it pending lawsuits. and Great Primary Policies, addition to the Fed- or, sought Northern dismissal the alter- eral and Great Northern also issued annu- native, summary judgment, and Beretta al policies umbrella and excess to Beretta sought also summary judgment. The dis- aggregate for the period July court, trict possessed jurisdiction (the through December 1332(a), § under 28 Policies”). U.S.C. ruled in favor “Umbrella The Declaration of Federal and Great Northern. Beretta page of Policy each Umbrella also con- appeals the ruling, possess tained, verba, adverse and we Exclusion, spe- in hasc jurisdiction § pursuant to 28 cifically stating U.S.C. that the Umbrella Policies below, As did not provide coverage we affirm. to Beretta for any liability arising out of the Exclusion. I. initiating Prior to this litigation, Beretta A. notified both Federal and Great Northern The facts relevant inquiry to our are thirteen lawsuits had been filed fully described in the ruling of the district against being brought it—twelve by mu- court, embodied in its Memorandum of nicipal governments in parts various of the 29, 2000, September No. CCB-99-2798 States, United and the thirteenth being a (the Memo.”). “D. Ct. Both Federal and (the Actions”). “Underlying class action Great Northern issued annual commercial Underlying Actions allege, each inter (the Policies”) policies “Primary insurance alia, engaged that Beretta “negli- Beretta, to aggregate pe- effective for the gent marketing guns and distribution of 31, 1990, July riod from through Decem- nuisance, public and seek to recover Primary ber 1999. The Policies each expenses allegedly in treating incurred aha, provided, inter that Federal and caring people for gun- who have suffered pay “damages Great Northern would injuries.” shot J.A. 9. Both Federal and insured legally obligat- [Beretta] becomes coverage Great Northern denied to Beret- to pay by liability imposed ed reason of Primary ta under the Policies and the by law or assumed under an insured con- (the “Policies”). Umbrella Policies Beret- bodily tract property for: or dam- ta coverage maintained that the denials of occurrence; age ... by caused ... or improper, sought declaratory were and it personal advertising injury.” or judgment awarding coverage 94,A. controversy claims, J. Central to the except product litigation Complet- claims, is the “Products made in Underlying Actions (the (the “Claims”).1 Operations ed Hazard” exclusion Underlying product argument, product 1. The Actions also assert Beretta conceded liability claims for Beretta's failure to make liability claims fall of the within terms prevent its firearms safe foreseeable by and thus are not covered misuse because Beretta failed to use modern accordingly Policies. There is no issue on technology incorporate safety devices that appeal concerning coverage lia- prevent being would its firearms from used bility claims. persons. children and unauthorized At oral III. B. A. of the written sub-
Upon consideration is con- deciding that After argument, and oral missions Generali trolling, Assicurazioni see Fed- summary awarded court (4th Cir.1998), Neil, The court de- eral and Great Northern. concluded that district court involved termined that Claims policy broadly the courts have property damage that occurred injury or ‘aris- “arising out of.” “The words and that premises from Beretta’s their common ing out of must be afforded product. of’ Accord- “arose out Beretta’s originat- namely, to mean understanding, it ingly, concluded that of, from, from, flowing ing growing *4 by the terms the precluded Claims was of v. Am. the like.” N. Assurance Co. of Exclusion, Maryland and under Inc., Floors, EDP 311 Md. Federal nor Northern had neither Great words, (Md.1987). In the 688 indemnify duty to defend or Beretta. any only “but implies out of’ phrase Admin, v. for” Mass Transit causation. first of parties agree prong The that the Inc., 349 708 Transp., CSX is, satisfied; is that the dam- the Exclusion (Md.1998). dis- Accordingly, the occurred ages sought Claims that the Exclusion trict court reasoned Thus, premises. the from Beretta’s as was and that Beretta applied to the Claims recognized, ques- court the central district or defense not entitled to indemnification for our and determina- tion consideration under Policies. the meaning, the under tion is conclusion, district reaching of,” of as out contained EDP Floors court found instructive the Exclusion. Beretta contends Maryland’s court. highest decision of limits scope of Exclu- Floors, of of Ma- Appeals EDP the Court dangerous allegations involving the sion to policy provision and defective nature of Beretta’s ... “bodily excluded failure to those dangers. and its warn of of arising loading unloading out of contrast, Northern, and Great Federal Floors, EDP [a truck].” maintain that the Exclusion is not limited prop- had The ruled that the insurer court claims. product liability for a erly coverage to its insured denied hiring, of negligent supervision, claim II. employee who was intoxi- retention of must decide whether We injured plain- who job cated on the in concluding that the court erred Claims of a during unloading tiff his actions fell under the truck. at 686-89. court Id. granting summary judgment and Great Northern. Our stan- if injury arose plaintiffs] [the plenary; dard for review review employee’s unloading of of EDP’s de summary judgment of novo. award truck, then that is excluded Indus., Inc., Capital Dalton v. Assocs. regardless This is so coverage. (4th Cir.2001); 409, 411 Detrick v. F.3d injury may said to whether the also be Inc., (4th Panalpina, 108 F.3d further have arisen out of other causes Dalton, Cir.1997); events, Becerra sequence back in the such Cir.1996). alcohol, (4th employee’s consumption employer’s or the negligent failure you es own or rent arising supervise the employee. The exclusion product.... Nothing in that lan- applies also irrespective the theory guage supports proposition liability by plaintiff] which [the seeks exclusion prod- to defective redress his ucts. added).
Id. at (emphasis 688-89 (internal D. Ct. citations omitted). Moreover, the district court Applying the reasoning of EDP found Floors, support additional Sport- Brazas the district court concluded that Arms, ing Inc. v. American applies Empire Exclusion Sur- to the Claims be cause, (1st plus Lines regardless injuries Insurance whether the F.3d Cir.2000), involved could also be said to arise from a First Circuit decision address- negligent Beret-ta’s marketing and ing distri appeal by similar a firearms distribu- F;3d bution products, of its the “but for” cause tor.2 court, at 1-4. The injuries in the Claims arose out of under Massachusetts “applied princi- Beretta’s product. On appeal, Beretta as ples of insurance contract construction vir- serts that analysis district court’s tually identical to principles applied incorrect. It contends that law,” and ruled that “the permit does not beyond court to look plain language of the exclusion was not *5 allegations in the Claims. As we have limited to defective claims.”3 D. noted, the EDP Floors decision renders Brazas, (citing Ct. 220 F.3d untenable, position this because “the theo 4-5). at agreed The district court with the ry liability by plaintiff] which [the seeks analysis by Circuit; made the First redress” is irrelevant. Id. at 689. agree as well. Id. C. B. Finally, Beretta contends that the
Next, Beretta maintains that
the
district court
by
erred
not considering ex
district court
rejected
erred when it
Beret
trinsic evidence of the Exclusion’s mean
ta’s contention concerning the Exclusion’s
ing. The district court found no
in
plain
merit
meaning.
It asserts
under Ma
because,
position
Exclusion,
the
by
plain
its
“[o]nly if policy
ambiguous
a
meaning, applies only
injuries
should the
to
caused
defective
court consider
products,
parol
in that a
extrinsic and
reasonably
evidence
prudent layperson
to
would believe an
determine the intention of the parties.”
product only
arises out of a
if
product
(citing
Co.,
Id. at 9
Sullins v. Allstate Ins.
(Md.1995)).
defect causes the
340 Md.
Under
contention,
ambigui
“[w]hether
In analyzing that
it is first
ty
depends
exists
on
necessary
language
to
whether ‘the
examine the
noted,
policy
the
policy suggests
itself. As
insurance
more than
the[Exclu-
sion] excludes
meaning
reasonably
all
one
to a
prudent lay
occurring
Sullins,
premis-
from
person’
(quoting
”. Id.
667 A.2d at
Massachusetts,
against
2. The theories of
asserted
phrase "arising
out
of"
negli-
firearms
denotes an intermediate standard of cau-
distributor
were for
Brazas
proximate
sation between
and
gent
"but for” cau-
and willful misconduct
in the distribu-
Therefore,
sation.
4.
the First
concluded
Co. of
932,
(Ark.1975);
‘‘[w]here,
here,
Lessak v.
as
of the exclu-
528 S.W.2d
934
Co.,
153,
unambiguous,
provision
the text
Cas.
168 Ohio St.
151
is
Metro.
Ins.
730,
1958);
(Ohio
given
plain meaning.
Colony
be
In this
Co.
should
735
Ins.
N.E.2d
case,
H.R.K., Inc.,
(Tex.Ct.
plain meaning
of the exclusion
Finally, princi person gun Beretta invokes with a non-defective or in Stanley v. ple American Mo embodied not think of normally gun one would Co., 180, torist Insurance 195 73 A.2d Md. having injury. as knife inflicted Rath- 1 (Md.App.1950), “parties who adopt er, typically person one would view the policy, apparently has weapon having who misused the inflict- had use judicially nationwide and has been is, ed That would be states, adopt construed in five or six with to have of’ the wrongful said “arisen out judicial it the uniform construction that it person, act the weapon not itself. Id. has received states.” many jurisdictions, this would abe point Beretta, This of no assistance to argument, prevailing for the Ex because of the insured would lie. manufacturer uniformly clusion have not been construed. question here is whether See, e.g., v. Cobbins Gen. Accident Fire & interpreted “arising the words out of’ Ltd., Corp., 285, Assurance Ill.2d 53 Life sweep such manner as to this argu 873, (Ill.1972) (“The 290 N.E.2d 877 defini away. Analytically, they ment have. It is tion ‘products’ per hazard not does Maryland assigns because to the mit the interpretation it extraordinary words of’ to the typical product-liability or defective- can breadth the exclusion be inter limited.”); see It case. is not so preted as the district court did. The Ma Seed, Co., also Parma Inc. v. Gen. Ins. 94 courts have “arising out (Idaho 658, 1972); 281, Idaho P.2d 286 express expansive concept of’ to Tiano v. Cas. Aetna and Sur. causation, they but —for have done (Mich. 177, 476, Mich.App. N.W.2d repeatedly variety and in a of different Ct.App.1980); Pennsylvania Gen. Ins. Co. See, e.g., settings Mass contexts. Melon, 502, 492 N.Y.S.2d 503 04 Admin, Inc., Transp., Transit v. CSX (NY.App.Div.1985). (Md.1998); N. Md. 708 A.2d Inc., Floors, Assurance EDP Co. Am. v. IV. (Md. Md. 533 A.2d 688-89 Pursuant find no foregoing, 1987); Nat’l v. Ewing, Indem. Co. interpretation error in the district court’s (Md.1964). Under application Maryland ac- law. We escape one cannot the fact *7 decision, cordingly adopt its well-reasoned that, “but appellant’s product, for” Corp. affirm. Beretta U.S.A. and we alleged underlying harms com F.Supp.2d plaints would not have occurred. (D.Md. 2000). Secondly, adjective if the “defective” had AFFIRMED. used modify “product,” been the noun WILKINSON, concurring Chief Judge, the exclusion could likewise be judgment: appellant suggests. the manner plainly The exclusion would then be limit- here, I concur in the but I products liability traditional I ed to suits. separately write because I think the case believe, however, pos- do not majority acknowledges. is closer than authority sess the to add that word to the abstract, In the it is to con- reasonable negotiated by contract tend, does, appellant parties. product” exclu- sum, had another state’s law been to traditional controlling If inflicted or had the exclusion contained actions. prop- I think an affirmance is word, might the result single additional er course. have been different. On the basis well contract,
Maryland law and under