                              PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-1395


COVOL FUELS NO. 4, LLC, a Utah limited liability company,

                Plaintiff – Appellant,

           v.

PINNACLE MINING COMPANY, LLC, a Delaware limited liability
company,

                Defendant – Appellee.


Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.      Irene C. Berger,
District Judge. (5:12-cv-04138)


Argued:   January 28, 2015                 Decided:   March 3, 2015


Before KING and FLOYD, Circuit Judges, and DAVIS, Senior Circuit
Judge.


Affirmed in part, vacated in part, and remanded by published
opinion. Judge King wrote the majority opinion, in which Senior
Judge Davis joined.      Judge Floyd wrote a separate opinion
dissenting in part and concurring in part.


ARGUED:   Thomas Vincent Flaherty, FLAHERTY SENSABAUGH BONASSO
PLLC, Charleston, West Virginia, for Appellant.       Timothy J.
Downing, ULMER & BERNE LLP, Cleveland, Ohio, for Appellee.    ON
BRIEF:   Alan L. Sullivan, James D. Gardner, SNELL & WILMER
L.L.P., Salt Lake City, Utah, for Appellant.           Wm. Scott
Wickline, Christopher D. Pence, HARDY PENCE PLLC, Charleston,
West Virginia; Joseph A. Castrodale, Paul R. Harris, Matthew T.
Wholey, ULMER & BERNE LLP, Cleveland, Ohio, for Appellee.
KING, Circuit Judge:

      From 2008 to 2011, Covol Fuels No. 4, LLC (“Covol”) and

Pinnacle Mining Co., LLC (“Pinnacle”) were parties to a business

agreement wherein Covol conducted coal fines recovery operations

at    Pinnacle’s    mine      in   Wyoming      County,       West   Virginia   (the

“Pinnacle mine”).        After it became economically unfeasible for

Covol to continue those recovery operations, it initiated this

civil action in the Southern District of West Virginia, alleging

claims    for   breach   of    contract,        tort,   and    unjust   enrichment.

Pinnacle moved for summary judgment, which was awarded as to all

claims.    See Covol Fuels No. 4, LLC v. Pinnacle Mining Co., LLC,

14 F. Supp. 3d 724 (S.D. W. Va. 2014) (the “Opinion”). 1                        Covol

has appealed the district court’s award of summary judgment on

its contract and tort claims.                 As explained below, there are

genuine    issues   of     material      fact    that   must    be   resolved    with

respect to Covol’s breach of contract claim.                   On the other hand,

we agree with the Opinion that Covol’s tort claims are barred by

the   so-called     “gist     of   the   action    doctrine.”         We   therefore

affirm in part, vacate in part, and remand.




      1
       The Opinion is found at J.A. 2861-90. (Citations herein
to “J.A. ___” refer to the contents of the Joint Appendix filed
by the parties in this appeal.)



                                          2
                                           I.

                                           A.

       The     Pinnacle    mine   includes       several    stages   of     operations

through which coal is recovered, beginning with mining coal from

the Pocahontas Number 3 seam. 2                  That extracted material goes

through Pinnacle’s “wash” or “prep” plant (the “wash plant”),

which strips coal from waste (the “refuse material”).                         Pinnacle

then pumps the refuse material through a slurry line and into

its nearby Smith Branch impoundment (the “impoundment”).

       The impoundment is a ten-acre, man-made pond created by a

dam on the downstream side of the impoundment, on the Smith

Branch of Pinnacle Creek, near Pineville, West Virginia.                             It

measures 200-feet deep at the greatest depth, runs nearly a mile

in length, and is between 500- and 1000-feet across.                        The refuse

material       settles    into    the   impoundment,       which   is   filled    with

water.       Pinnacle is able to pump water out of the impoundment

and into a so-called “toe pond” downstream.                        From there, the

water may either be pumped into an underground reservoir (and

then    back    into     Pinnacle’s     wash    plant)     or   released,    where   it

flows      into    Pinnacle       Creek,        the   Guyandotte        River,    and,



       2
       We recite the facts in the light most favorable to Covol,
as the nonmoving party. See Durham v. Horner, 690 F.3d 183, 185
n.3 (4th Cir. 2012).



                                           3
eventually, to the Ohio River, the Mississippi River, and the

Gulf of Mexico.

     The      refuse    material      contains          fine-grained       coal      (“coal

fines”) not captured by the wash plant.                       If refuse material is

lifted    from   the    impoundment,        it    can    be    processed       to   extract

those    coal    fines,     which   can     be    sold    for    various       industrial

purposes. 3      In    October      2006,       Beard    Pinnacle,       LLC    (“Beard”)

initiated coal fines recovery operations at the Pinnacle mine,

wherein it dredged the impoundment for refuse material, which it

processed at an adjacent facility (the “processing facility”).

                                            B.

                                            1.

     In February 2008, Covol executed a series of contracts with

various    Pinnacle     affiliates,       whereby        Covol    took    over      Beard’s

operations. 4         The   principal       contract      at     issue    is    the    Coal

     3
       The coal fines in the impoundment are apparently of
substantial value, having been extracted from the Pocahontas
Number 3 seam, which contains some of the best coal in the
world.   See C. Stuart McGehee, Pocahontas No. 3 Coal Seam, W.
Va.         Encyclopedia         (Oct.       22,         2010),
http://www.wvencyclopedia.org/articles/1880.  See also Castner
v. Coffman, 178 U.S. 168, 173 (1900) (observing that coal from
the Pocahontas Number 3 seam has been “well and favorably known
as a coal of high grade”).
     4
       Through a series of related agreements, Covol purchased
the processing facility and its assets from Beard; Covol assumed
a lease from Beard Technologies, Inc., in order to operate the
processing facility; and Covol and Pinnacle agreed on a manner
for splitting the profits from the processed coal fines.


                                            4
Purchase and Refuse Recovery Agreement (the “Agreement”). 5                      The

Agreement     —   a    fully    integrated      contract    —   was   executed   on

February 15, 2008, and imposed a five-year term, with the option

for the parties to mutually agree to renew for additional one-

year terms.       Covol was authorized to unilaterally terminate the

contract under section 12 of the Agreement if its operations

became economically unfeasible.                 The Agreement designates that

it shall be governed by West Virginia law.                 See Agreement § 27.

      Pursuant to the Agreement, Covol agreed to purchase and

process “all or part of” the refuse material located in the

impoundment, and to handle and process that material “in such a

way which does not interfere with Pinnacle’s Mining Operations.”

See Agreement § 4.             Pinnacle disclaimed any representation or

warranty as to the “character or quality or amount of the Refuse

Material Covol removes or receives.”                  Id. § 20.       Pursuant to

section 18 of the Agreement, Pinnacle was required to provide

Covol with:        an area near the impoundment where Covol could

install and maintain its equipment; ingress and egress across

Pinnacle’s     property;       and   “any   right-of-way     reasonably   needed”

for   Covol       to   “transport       the      Refuse    Material     from     the




      5
          The Agreement is located at J.A. 75-92.



                                            5
[impoundment] to the processing [facility].” 6                 Two provisions of

the Agreement — sections 7 and 8 — imposed contractual duties

relating   to   applicable     laws.       Section   7    required    Covol     and

Pinnacle, in performing their obligations under the Agreement,

to   “comply     in    all     respects       with       and     undertake      all

responsibilities      under”   applicable      state      and    federal     laws. 7

Relatedly, section 8 required the parties to obtain and maintain

any necessary permits or licenses. 8

     6
       Section 18 of the Agreement, which is titled “Access and
Lease Provisions,” provides, in pertinent part:

     Pinnacle shall provide to Covol:      (i) a mutually
     agreeable area . . . to install and maintain its
     Processing Facility . . . ; (ii) any right-of-way
     reasonably needed by Covol to transport the Refuse
     Material from the [impoundment] to the processing
     [facility]; and (iii) ingress and egress over the
     property of Pinnacle . . . to support the activities
     described in this Agreement. . . .
     7
       Section 7 of the Agreement, which is titled “Compliance
with Laws,” provides, in pertinent part:

     In performing their respective obligations under this
     Agreement, Covol and Pinnacle shall comply in all
     respects with and undertake all responsibilities under
     all applicable . . . rules, regulations, . . . or
     other similar requirements of any federal, state, or
     local government, agency, court, or public authority
     (“Governmental   Requirements”),  including,   but   not
     limited to, those regulating or otherwise relating to
     environmental pollution and environmental control,
     safety,   health,   labor,   such  as,   for   example,
     Governmental Requirements under . . . the Federal Mine
     Safety and Health Act of 1977, as amended[;] . . . .
     8
       Section 8 of the Agreement, which is titled “Licenses and
Permits,” provides, in pertinent part:
(Continued)
                                       6
        The   Agreement    provided    for    both    Pinnacle   and   Covol   to

profit from the recovered coal fines.                Sections 2 and 3 set out

that Covol would sample and test the recovered coal fines to

determine their quality.             Depending on the levels of ash and

moisture, the coal fines would be categorized as either “met

coal” or “steam coal.”          See Agreement § 2.         Met coal — which

contains lower ash and moisture content and is therefore more

valuable — would be purchased by an affiliate of Pinnacle, while

Pinnacle had an option — but no obligation — to purchase steam

coal.    See id.

                                        2.

        Covol paid $14 million to purchase the processing facility,

and then immediately spent another $4 million renovating it.

Covol’s coal fines recovery operations were under way by the

summer of 2008.           A number of issues and events arose in the

following years that ultimately made it economically unfeasible

for   Covol    to   continue    in    the    business.     Covol   ceased      its

operations at the Pinnacle mine in 2012.




        Pinnacle shall maintain its existing permits that are
        required for its performance under this Agreement.
        Any additional permits required by Pinnacle for
        Covol’s operations . . . shall be acquired by Pinnacle
        . . . .



                                        7
       The biggest obstacle Covol faced related to the water level

of    the   impoundment.       To     extract    the    refuse          material,     Covol

utilized a dredge machine with a mechanical arm that dipped into

the water and dragged refuse material out of the impoundment.

The mechanical arm was 25-feet long, meaning that the dredge

could only reach the top 25 feet of water.                              Covol requested

several     times    that   Pinnacle     adjust       the       water    level   so    that

Covol’s dredge could capture refuse material located deeper in

the    impoundment.          Pinnacle,     however,          declined       to   do     so.

Moreover,     in    2011,     Pinnacle        adopted       a    new     protocol      that

prevented     it    from    pumping    water    out     of      the     impoundment    and

lowering the water level (the “water management plan”). 9                        Without

those adjustments to the water level, Covol was able to extract

only a portion of the refuse material.




       9
         West    Virginia   regulations    concerning   selenium
contamination of surface water required Pinnacle to change its
operations in order to come into regulatory compliance. See W.
Va. Code R. §§ 47-30-1 to 47-30-15 (2009).       Selenium is an
antioxidant that has been naturally found in West Virginia coal,
rocks, and soil. See J.A. 1637. Although humans require a very
small amount of selenium, it “can be toxic in larger amounts and
has been found to cause reproductive problems in some aquatic
animals.” Id. Pinnacle had at least two options: (1) a water
management plan, that would control selenium contamination by
essentially recycling the water in the impoundment, so that it
would not be released; and (2) a water treatment plan, that
would reduce the amount of selenium contained in the water
through a chemical process.       Pinnacle selected the water
management plan. See id. at 1652-58.



                                          8
      Throughout Covol’s coal fines recovery operations under the

Agreement, the parties were subject to mine plans required by

the federal Mine Safety and Health Administration (the “MSHA”),

see   30   C.F.R.    §§ 77.216-77.217        (2008),   and    operating    permits

required     by    the     West   Virginia    Department      of     Environmental

Protection (the “WVDEP”), see W. Va. Code R. §§ 38-2-1 to 38-2-

14 (2008).        As of 2008, a mine plan was in effect that had been

submitted    in     2002    and   approved    prior    to    Beard    opening   the

processing facility (the “Beard mine plan”).                       Covol operated

under that plan from 2008 until August 2010, when the first two

phases of a modified mine plan (the “modified mine plan”) were

approved by both the MSHA and the WVDEP. 10                 During the parties’

relationship under the Agreement, an approved mine plan required

that any mining of the impoundment be performed concomitant with

an incremental lowering of the water level. 11




      10
       Covol had pursued modifications to the Beard mine plan in
order to conduct the spoil removal project, which is described
infra at 10.
      11
        The Beard mine plan described two phases of operations
for removing coal fines from the impoundment, and stated that
the water level would be lowered “between 15 and 30 feet” during
phase 1, and “an additional 20 to 30 feet” during phase 2. See
J.A. 2026.    The modified mine plan set out six phases of
operations, although only two of those phases were approved by
both the MSHA and the WVDEP.    That plan called for the water
level of the impoundment to be lowered in 25-foot increments.
See id. at 2014.



                                        9
     Beyond   the     problems   Covol     encountered    in   accessing    the

refuse material located deeper than 25 feet below the surface of

the impoundment, it also faced a decline in the quality of coal

fines.     When Covol began its operations at the Pinnacle mine,

Pinnacle’s wash plant was relatively inefficient, meaning that

it left a high level of coal in the refuse material.                        That

remaining coal was of good quality in terms of ash and moisture

content.      Covol,     then,    benefited     from     the   wash    plant’s

inefficiency on the front end because it could recover that coal

on the back end.       During the negotiations leading up to the 2008

Agreement,    Pinnacle     was    aware     that   the     wash   plant      was

inefficient and outdated, though it did not inform Covol of any

plans to update the wash plant.               In fact, Pinnacle did not

approve that upgrade until 2009.           It subsequently notified Covol

of those plans in July 2010.          Pinnacle completed its upgrades to

the wash plant in 2011.

     In the face of those obstacles to its coal fines recovery

operations,    Covol    attempted     to    maximize     the   areas   of   the

impoundment    that     could    be   mined.       Initially,     Covol     was

restricted as to what portions of the impoundment its dredge

could reach under the Beard mine plan.             Once the modified mine

plan was approved, Covol invested $4 million to excavate spoil

material from the banks of the impoundment, giving Covol new

access to millions of tons of coal fines (the “spoil removal

                                      10
project”).       That expenditure was properly approved in October

2010 and the project was completed in 2011.                      Covol realized no

benefit from the spoil removal project, however, because its

coal    fines        recovery        operations       had    become     economically

unfeasible      as     a    result     of    the   static    water    level   of    the

impoundment.         Therefore, in 2011, Covol was soliciting offers to

sell its business.

                                             C.

       Covol    filed       this     civil   action    against   Pinnacle     in    the

Southern District of West Virginia on August 7, 2012, alleging

four   causes     of       action.      First,     Covol    charged   Pinnacle     with

breaching the Agreement, maintaining that Pinnacle had violated

its obligations under both the express terms of the Agreement

and the implied covenant of good faith and fair dealing.                           Covol

claimed damages including lost profits from its share of more

than $100 million worth of coal.                   Second, Covol asserted a tort

claim for fraudulent concealment, alleging that Pinnacle hid its

intentions to renovate the wash plant and to implement the water

management plan while Covol was spending millions of dollars to

renovate the processing facility and undergo the spoil removal

project.       Third, Covol asserted another tort claim for negligent

misrepresentation, predicated on the theory that Pinnacle had

breached its duty to provide Covol with material information by

failing to disclose its plans relating to the wash plant and

                                             11
water     management       plan.            Fourth,     Covol       alleged     an     unjust

enrichment        claim     stemming        from      the    monetary        benefit       that

Pinnacle received due to Covol’s investment in the spoil removal

project.

        After discovery had been completed, on October 17, 2013,

Pinnacle        moved     for    summary       judgment        on      all   four     claims.

Following       briefing,       the   district        court,      as   explained      in    its

Opinion, granted Pinnacle summary judgment as to each claim.

      With      respect     to    Covol’s      breach       of     contract     claim,      the

district court determined that the Agreement is not ambiguous,

and thus undertook to identify and enforce its plain and natural

meaning.         See    Opinion       15.      More     specifically,          the    Opinion

rejected Covol’s contentions that sections 1, 4, 8, and 18 of

the Agreement gave Covol a right to access the refuse material.

Id. at 16-19.           Alternatively, the court determined that even if

the Agreement did provide such a right, “allowing Covol access

to the bottom of the impoundment pond does not require Pinnacle

to affirmatively lower the water level.”                          Id. at 17.        The court

further reasoned that, as a matter of law, Pinnacle did not

breach the Agreement because “Covol simply had to deal with more

water in the impoundment where the refuse material was located,”

and “the Agreement explicitly disclaims any warranty regarding

the quantity or quality of the refuse material.”                             Id. at 20-21.

The     court    surmised        that   “Pinnacle           may     have     made    business

                                              12
decisions       that        ultimately       made        Covol’s     operations           more

difficult, but no evidence indicates that Pinnacle breached the

[Agreement].”         Id. at 21.         Given that Covol could not succeed on

its contract claim arising under the terms of the Agreement, the

court ruled that Covol’s good faith and fair dealing theory must

similarly fail.         That was so because “there is no avenue through

the applicable case law that affords Covol an independent cause

of action for a breach” of that covenant.                       Id. at 22.

     Next, the district court analyzed Covol’s two tort claims

together.       The Opinion briefly explained that the claims would

not succeed on their merits, but emphasized that the tort claims

were barred by the gist of the action doctrine because “they

would     not    arise        independent          of     the      existence        of        the

[Agreement].”          See    Opinion      26.      Finally,       the   court      granted

summary judgment on Covol’s unjust enrichment claim because “the

subject   matter       of    this    claim    involves      the     performance          of   an

express    contract,”        which       “cannot    be    the    basis   of    an    unjust

enrichment claim” under applicable law.                    Id. at 30.

     Covol      has    timely       noticed       this    appeal,     and     we    possess

jurisdiction pursuant to 28 U.S.C. § 1291.



                                             II.

     We    review      de    novo    a    district       court’s    grant     of    summary

judgment.       See Desmond v. PNGI Charles Town Gaming, LLC, 630

                                             13
F.3d 351, 354 (4th Cir. 2011).              In so doing, “it is elementary

that . . . ‘[t]he evidence of the non-movant is to be believed,

and all justifiable inferences are to be drawn in [its] favor.’”

Greater    Balt.    Ctr.    for   Pregnancy   Concerns,    Inc.   v.    Mayor   of

Balt., 721 F.3d 264, 283 (4th Cir. 2013) (en banc) (quoting

Anderson    v.    Liberty    Lobby,   Inc.,   477   U.S.   242,   255   (1986)).

Summary judgment may be granted only where “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.”          Libertarian Party of Va. v. Judd,

718 F.3d 308, 312-13 (4th Cir. 2013) (internal quotation marks

omitted).        A dispute is genuine if “a reasonable jury could

return a verdict for the nonmoving party.”             Dulaney v. Packaging

Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012).                       A fact is

material if it “might affect the outcome of the suit under the

governing law.”      Anderson, 477 U.S. at 248.



                                      III.

     On appeal, Covol contends that the district court erred in

granting summary judgment on its breach of contract claim and on

its tort claims.           Covol requests that the judgment be vacated

and the matter remanded for trial.

                                       A.

     We begin by addressing Covol’s breach of contract claim.

Covol asserts that Pinnacle breached the Agreement by failing to

                                       14
lower the water level of the impoundment, thereby interfering

with Covol’s ability to access the coal fines contained therein.

Pinnacle, meanwhile, disputes that it was under any obligation

to adjust the water level.            Covol maintains that such a duty was

created by both the express terms of the Agreement and by the

implied covenant of good faith and fair dealing.                         We address

those contentions in turn.

                                            1.

      First, whether the terms of the Agreement obliged Pinnacle

to   adjust   the    water   level     of    the     impoundment   hinges     on   the

language    of     that   contract.     The        Agreement   makes    no   explicit

reference     to    water    levels.             Covol   nevertheless    relies    on

sections 1, 4, 7, 8, and 18 of the Agreement — individually and

in combination — as bestowing on Covol a right to access the

refuse material in the impoundment and imposing a corresponding

duty on Pinnacle to adjust the water level.

      The Supreme Court of Appeals of West Virginia has explained

that, in construing a contract, a reviewing court must first

determine whether the contract is ambiguous, meaning that the

language is “reasonably susceptible of two different meanings,”

or “that reasonable minds might be uncertain or disagree as to

its meaning.”         See Syl. Pt. 4, Estate of Tawney v. Columbia




                                            15
Natural Res., LLC, 633 S.E.2d 22, 23-24 (W. Va. 2006). 12               Whether

or not a contract is ambiguous is a question of law.                  See Syl.

Pt. 5, id. at 24.            If the contract is unambiguous, then the

court     should   enforce    its   terms   according    to   the    plain   and

natural     meaning   of     the    language   used     without     considering

extrinsic evidence.          See Payne v. Weston, 466 S.E.2d 161, 166

(W. Va. 1995).        If, however, the contract is ambiguous, then

extrinsic evidence may be consulted to discern what the parties

intended the rights and obligations of the agreement to include.

See id.      Importantly, “when the document has been found to be

ambiguous[,] . . . the determination of intent through extrinsic

evidence become[s] a question of fact,” rather than a question

of law.     Id.

                                       a.

     In section 18 of the Agreement, Pinnacle undertakes several

duties regarding Covol’s right to access its property.                 Relevant

here, section 18(ii) provides that Pinnacle must

        provide . . . any right-of-way reasonably needed by
        Covol to transport the Refuse Material from the
        [impoundment] to the processing [facility].

     12
        Pursuant to the Constitution of West Virginia, the
Supreme Court of Appeals of West Virginia articulates new points
of law through its syllabus.    See W. Va. Const. art. VIII, § 4
(“[I]t shall be the duty of the court to prepare a syllabus of
the points adjudicated in each case in which an opinion is
written in which a majority of the justices thereof concurred,
which shall be prefixed to the published report of the case.”).



                                       16
Section 18(ii) clearly gives Covol a right-of-way relating to

the refuse material.          The parties disagree, however, as to the

meaning of the term “from the [impoundment],” and whether that

term    required    Pinnacle        to   adjust    the        water    level    of     the

impoundment.       We therefore must determine whether section 18(ii)

is ambiguous on that point.

       Covol characterizes section 18(ii) as requiring Pinnacle to

provide a right-of-way within the impoundment itself, such that

Pinnacle   must     adjust    the    water     level    in     order   for     Covol    to

retrieve    the      refuse     material.              That     interpretation          is

reasonable, given that the provision obliges Pinnacle to provide

“any right of way reasonably needed.”                   See Agreement § 18(ii).

Pinnacle maintains that section 18(ii) only speaks to Covol’s

right to transport “over the land from the Impoundment to the

Processing Facility,” suggesting that the right-of-way begins at

the edge of the impoundment.                 See Br. of Appellee 31.                 That

interpretation is also reasonable because the term “from the

[impoundment]” makes no explicit reference to the right-of-way

extending into the impoundment.                A third reasonable reading of

section    18(ii)    could    be    somewhere     in     the    middle:        that     it

provides Covol a right-of-way within the impoundment to access

any    refuse   material     that    Covol     could    reach     without      Pinnacle

manipulating the water level.                Thus, there are at least three



                                          17
reasonable      interpretations       of     section          18(ii),    indicating      that

the provision is ambiguous.

       A   broader       reading     of      the        Agreement       underscores       the

ambiguity.        Section 18(ii) describes Covol’s right with respect

to     transporting      refuse      material,          and     “refuse    material”       is

broadly defined in section 1 of the Agreement to include “coal

waste material . . . located at” Pinnacle’s refuse site.                                  In

section 4, Covol undertakes to “purchase . . . all or part of

the Refuse Material produced, previously, currently and any in

the     future,       from   Pinnacle’s       Mining          Operations       in   Wyoming

County.”          A    reasonable     construction             of   the    term     “refuse

material” can encompass the material as it sits in the bottom of

the    impoundment,      having     been     pumped       in    from     Pinnacle’s      wash

plant.      Section      18(ii)    may     thus        naturally    be    interpreted     as

giving Covol the right-of-way to extract the refuse material

from the impoundment.              In all, we are satisfied that section

18(ii)     is   ambiguous      and     can        be    reasonably        interpreted     in

alternative ways.

       Because section 18(ii) is ambiguous, extrinsic evidence may

be considered in order to resolve the factual question of what

the parties intended.             If a reasonable jury could decide that

question in favor of Covol, then a genuine dispute of material

fact    exists,       precluding     summary           judgment.         See   Dulaney    v.

Packaging Corp. of Am., 673 F.3d 323, 330 (4th Cir. 2012) (“A

                                             18
genuine question of material fact exists where, after reviewing

the record as a whole, a court finds that a reasonable jury

could return a verdict for the nonmoving party.”).    Covol relies

on deposition testimony of William Boor, who testified on behalf

of Pinnacle regarding the Agreement, pursuant to Rule 30(b)(6)

of the Federal Rules of Civil Procedure. 13   Boor testified that

Covol’s intent in entering the Agreement was to remove refuse

material from the impoundment.   See J.A. 1324.   Boor agreed that

“the purpose of the [A]greement” was that “Covol wanted to get

the [coal] fines out of the [impoundment].”    Id. at 1325.     When

asked whether Covol would have entered into the Agreement if it

would not be given access to the refuse material, Boor replied:

“Yeah, that would be no deal.     I mean, the purpose of the deal

was for their business plan to clean coal.”   Id. at 1325-26.     He

agreed that “to clean the coal you had to have access to the

coal.”    Id. at 1326.

     In light of that testimony, Covol has established a genuine

dispute of material fact as to whether the parties intended for

the right-of-way granted in section 18(ii) to require Pinnacle


     13
        Rule 30(b)(6) of the Federal Rules of Civil Procedure
pertains to depositions of organizations, including corporate
entities.   The organization is permitted to designate a person
to testify on its behalf, and the organization is bound by that
testimony.   See Reilly v. Natwest Markets Grp., Inc., 181 F.3d
253, 268 (2d Cir. 1999).



                                 19
to adjust the water level so that Covol could access the refuse

material located in the impoundment.          See Scites v. Marcum, 560

S.E.2d 505, 509 (W. Va. 2002) (explaining that size, location,

and nature of right-of-way are factual questions to be decided

by jury).     We must remand because the proper interpretation of

the Agreement can only be resolved by the trier of fact.                   See

World-Wide Rights Ltd. v. Combe Inc., 955 F.2d 242, 245 (4th

Cir. 1992). 14

                                      b.

     Covol also contends that Pinnacle was obliged to adjust the

water level of the impoundment based on the provisions of the

mine plans.      That argument relies on sections 7 and 8 of the

Agreement.    Section 7 required Pinnacle to comply with the law,

including state and federal regulations.              Section 8 required

Pinnacle to “maintain its existing permits” and to acquire any

additional    permits   needed   in   order   for   Covol   to   conduct   its

operations.      Reading sections 7 and 8 in tandem, Covol contends

that Pinnacle breached the Agreement when it violated the mine

plans by refusing to lower the water level of the impoundment.

     14
       The district court’s alternative ruling — that, if Covol
was given some right to access the refuse material, that right
did not encompass all refuse material in the impoundment or
require Pinnacle to adjust the water level — is unpersuasive.
That construction is not clear from the Agreement, and thus
reflects a factual determination that could not be made against
Covol in the summary judgment proceedings.



                                      20
       A threshold issue here is whether the mine plans should be

incorporated        into    the   Agreement.            In   order    to    incorporate   a

separate document into a contract, “a general reference” to the

other document is not enough.                See Syl. Pt. 2, State ex rel. U-

Haul Co. of W. Va. v. Zakaib, 752 S.E.2d 586, 589 (W. Va. 2013).

Rather,

       (1) the writing must make a clear reference to the
       other document so that the parties’ assent to the
       reference   is  unmistakable;  (2) the   writing  must
       describe the other document in such terms that its
       identity may be ascertained beyond doubt; and (3) it
       must be certain that the parties to the agreement had
       knowledge of and assented to the incorporated document
       so that the incorporation will not result in surprise
       or hardship.

Id.

       Taking the facts in Covol’s favor, the parties were aware

that   mine    plans       —    which     could    be    modified      —    would    govern

operations     at     the      Pinnacle    mine.         Nonetheless,       the    parties’

awareness of the mine plans is not, by itself, sufficient to

incorporate the terms of those plans into the Agreement.                                The

Agreement does not clearly reference mine plans, nor does the

contractual         language      expressly        indicate          that    the    parties

intended      for    the    terms    of    the     mine      plans     to   govern    their

contractual relationship.               Therefore, the Agreement is the sole

document memorializing the parties’ agreements.

       Next, Covol contends that, even if the terms of the mine

plans are not incorporated into the Agreement, Pinnacle agreed

                                             21
to abide by the terms of those mine plans, requiring it to

adjust the water level.              That argument hinges on section 7’s

provision       that     Pinnacle      comply       with         all     governmental

requirements.       Covol, however, did not raise section 7 in its

opposition to summary judgment in the district court.                          See J.A.

1282-1316.       Although that issue has not been squarely preserved

for    our   review,    we   observe    that    whether         section    7    obliged

Pinnacle to adhere to the terms of the mine plans, and whether

Pinnacle     breached     any   such    obligation,        would       raise    factual

issues that a jury must decide.                 In any event, a remand is

required on the basis of section 18(ii) of the Agreement.

                                        2.

       Beyond the terms of the Agreement, Covol predicates its

claim for breach of contract on a theory that Pinnacle breached

the    implied    covenant      of    good    faith       and     fair    dealing    by

interfering with Covol’s access to the refuse material and the

coal    fines     contained      therein.           West        Virginia’s      Uniform

Commercial Code provides that:               “Every contract or duty within

this    chapter    imposes      an   obligation       of    good       faith    in   its

performance      and    enforcement.”         See    W.    Va.     Code    § 46-1-304

(2006).      “Good faith” means “honesty in fact and the observance

of reasonable commercial standards of fair dealing.”                         Id. § 46-

1-201(b)(20).



                                        22
       The district court ruled that Covol could not succeed on

its good faith and fair dealing theory because Covol had not

otherwise raised a genuine issue of material fact as to the

terms       of   the    Agreement.        See    Opinion      22    (“Having    previously

found       that       Pinnacle    did    not        breach   any     duty     [under    the

Agreement], there is no avenue through the applicable case law

that affords Covol an independent cause of action for a breach

of the covenant of good faith and fair dealing.”).                             In light of

our    determination         that    Pinnacle         is   not     entitled    to    summary

judgment with respect to Covol’s theory that Pinnacle breached

the Agreement, we are satisfied that summary judgment should not

have    been       granted    as     to    Covol’s         allegation    that       Pinnacle

breached the implied covenant of good faith and fair dealing.

                                                3.

       Overall, then, section 18(ii) of the Agreement is ambiguous

as to whether Covol had the right to access the refuse material

located within the impoundment, thereby requiring Pinnacle to

adjust the water level of the impoundment.                          We therefore vacate

the district court’s award of summary judgment on Covol’s breach

of contract claim and remand. 15


       15
        The parties have focused much attention on the reasons
that Pinnacle did not lower the water level of the impoundment,
such as its efforts to comply with state regulations concerning
selenium contamination.   But whether Pinnacle was required to
take some action to comply with the law does not affect whether
(Continued)
                                                23
                                    B.

     Covol also disputes the district court’s award of summary

judgment as to its tort claims for negligent misrepresentation

and fraudulent concealment. 16     As to both of those claims, Covol

relies    on   alleged   misstatements   and   concealments   by   Pinnacle

with respect to Pinnacle’s intention to adjust the water level

of the impoundment and its intention to upgrade the wash plant.

     We are satisfied, as was the district court, that Covol’s

tort claims are barred by the gist of the action doctrine.            That

doctrine is meant “to prevent the recasting of a contract claim

as a tort claim.”        Gaddy Eng’g Co. v. Bowles Rice McDavid Graff

& Love, LLP, 746 S.E.2d 568, 577 (W. Va. 2013).           It applies if

any one of four factors is present, including:

     (1) where liability arises solely from the contractual
     relationship between the parties; (2) when the alleged
     duties breached were grounded in the contract itself;
     (3) where any liability stems from the contract; and



the Agreement required Pinnacle to adjust the water level of the
impoundment.
     16
         Under West Virginia law, “[f]raudulent concealment
involves the concealment of facts by one with knowledge or the
means of knowledge, and a duty to disclose, coupled with an
intention to mislead or defraud.” See Trafalgar House Constr.,
Inc. v. ZMM, Inc., 567 S.E.2d 294, 300 (W. Va. 2002). Negligent
misrepresentation, in turn, can be established where a person
“under a duty to give information to another . . . makes an
erroneous statement when he has no knowledge on the subject, and
thereby misleads the other to his injury.” See Folio v. City of
Clarksburg, 655 S.E.2d 143, 151 (W. Va. 2007).



                                    24
       (4) when the tort claim essentially duplicates the
       breach of contract claim or where the success of the
       tort claim is dependent on the success of the breach
       of contract claim.

Id. (quoting Star v. Rosenthal, 884 F. Supp. 2d 319, 328-39

(E.D. Pa. 2012)).          In Gaddy, the Supreme Court of Appeals of

West Virginia observed that “whether a tort claim can coexist

with a contract claim is determined by examining whether the

parties’ obligations are defined by the terms of the contract.”

Id.

       The Gaddy decision is instructive here.                 Gaddy involved a

verbal    fee    agreement      between    an    attorney    and   an   engineering

company.        The   company    alleged    that    the   agreement     included   a

promise by the lawyer to pay the company one-third of certain

recovered revenues, but the lawyer disagreed that such a promise

was ever made.         The company thereafter brought both contract and

tort     claims       premised    on      that    asserted     recovered-revenue

agreement.        The Gaddy court determined that the gist of the

action doctrine barred the company’s tort claim because that

claim “simply redoubled [the company’s] efforts in trying to

prove the existence of the [disputed provision].”                       Gaddy, 746

S.E.2d at 577.         As such, the tort claim was “simply [a] breach

of contract claim[] masquerading as” a tort.                 Id.

       Put succinctly, the same is true here.                 Covol’s assertions

that Pinnacle made misrepresentations or concealed its intention


                                          25
regarding    the    water     level   of    the    impoundment      simply    recast

Covol’s claim for breach of contract.                And with respect to the

alleged misstatements or concealments as to the wash plant, any

liability would be defined by the Agreement, wherein Pinnacle

expressly disclaimed any warranty as to the quality of refuse

material in the impoundment.            See Agreement § 20.

      In   sum,    Covol’s     claims      for    tort   liability    are     barred

because    the    gist   of   those   actions      sounds   in    contract.      The

district court therefore properly granted judgment to Pinnacle

on   the   fraudulent    concealment        and   negligent      misrepresentation

claims.



                                         IV.

      Pursuant to the foregoing, we affirm the district court’s

awards of summary judgment as to Covol’s tort claims, vacate

with respect to Covol’s claim for breach of contract, and remand

for such other and further proceedings as may be appropriate.



                                                                 AFFIRMED IN PART,
                                                                  VACATED IN PART,
                                                                      AND REMANDED




                                           26
FLOYD, Circuit Judge, dissenting in part and concurring in part:

       In    my    view,   nothing      in   the     Agreement’s       plain    language

requires      Pinnacle     to    pump    water     to    facilitate      Covol’s     coal

operations.          In    holding      otherwise,       I   believe    the    majority

conjures      an    ambiguity     where      there      is   none,    erring    in   two

fundamental respects.             Accordingly, except in regard to Part

III.B of the majority’s opinion, I respectfully dissent.

       First, the majority tacitly attributes a meaning to “right-

of-way” that is anything but “plain and ordinary.”                             Berry v.

Mountain Air Prop. Owners Ass’n, No. 13-1324, 2014 WL 5312274,

at *3 (W. Va. Oct. 17, 2014).                A “right-of-way” is “[t]he right

to   pass     through      property     owned      by    another.”       Black’s     Law

Dictionary 1522 (10th ed. 2014).                   Although a landowner cannot

interfere with the use of a right-of-way, a landowner has no

duty    to    maintain      or   facilitate        its    use   for    the     grantee’s

benefit.      See, e.g., Greiner v. Columbia Gas Transmission Corp.,

41 F. Supp. 2d 625, 631 (S.D. W. Va. 1999); Restatement (Third)

of Property: Servitudes § 4.13(2) (2000); James W. Ely, Jr. &

Jon W. Bruce, The Law of Easements & Licenses in Land § 8.22

(2014).      Thus, the pertinent part of § 18 provides Covol only

the right to pass through Pinnacle’s property; it clearly does

not impose an affirmative obligation on Pinnacle to facilitate

Covol’s passage and suit Covol’s changing needs.



                                             27
       Second, the majority fails to construe the Agreement “as a

whole, taking and considering all the parts together.”                          Faith

United Methodist Church & Cemetery of Terra Alta v. Morgan, 745

S.E.2d 461, 481 (W. Va. 2013) (quoting Maddy v. Maddy, 105 S.E.

803, 803 (W. Va. 1921)).             Specifically, the majority overlooks

the significance of § 20, which provides:

              Pinnacle makes no representation as to the
              character or quality or amount of the Refuse
              Material    Covol    removes    or   receives.
              Pinnacle HEREBY DISCLAIMS ANY WARRANTIES,
              EXPRESS OR IMPLIED, IN CONNECTION WITH THE
              REFUSE MATERIAL.     . . .   Pinnacle has not
              made any representation or warranty to Covol
              regarding the suitability or safety of
              Pinnacle’s property for the processing of
              the   Material    as   contemplated  by   this
              Agreement.

J.A.    85-86    (capitalization       in       original).       Given     Pinnacle’s

express disclaimers regarding the amount of material that Covol

should      expect   to   recover    and    the      suitability    of     Pinnacle’s

property for Covol’s operations, it is hard to see how Pinnacle

had    an   affirmative     obligation          to   pump   water   and    alter    the

conditions of its property simply to allow Covol to access more

material.

       In    summary,     unless    one    attributes       a   novel     meaning    to

“right-of-way” and isolates § 18 from the rest of the Agreement,

the Agreement unambiguously does not impose any obligation on

Pinnacle to pump and lower water for Covol’s benefit.                              As a



                                           28
result,   I   respectfully   dissent   and   would   affirm   the   lower

court’s determination in full.




                                  29
