                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-1194


MILLENNIUM INORGANIC    CHEMICALS    LTD.;      CRISTAL   INORGANIC
CHEMICALS LIMITED,

                Plaintiffs - Appellees,

           v.

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA; ACE
AMERICAN INSURANCE COMPANY,

                Defendants - Appellants.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Ellen L. Hollander, District Judge.
(1:09−cv−01893−ELH)


Argued:   December 12, 2013                 Decided:   February 20, 2014


Before NIEMEYER, AGEE, and WYNN, Circuit Judges.


Reversed and remanded by published opinion.   Judge Agee wrote
the opinion, in which Judge Niemeyer joined. Judge Wynn wrote a
dissenting opinion.


ARGUED:   Charles  Glaston  Cole,   STEPTOE  &   JOHNSON,  LLP,
Washington, D.C., for Appellants.  Joseph Lanham Beavers, MILES
& STOCKBRIDGE P.C., Baltimore, Maryland, for Appellees.      ON
BRIEF: Jonathan D. Hacker, O’MELVENY & MYERS LLP, Washington,
D.C., for Appellant ACE American Insurance Company.    Roger E.
Warin, STEPTOE & JOHNSON LLP, Washington, D.C., for Appellant
National Union Fire Insurance Company of Pittsburgh, PA.   John
C. Mezzacappa, Hilary M. Henkind, MOUND COTTON WOLLAN &
GREENGRASS, New York, New York, for Appellants. Gary C. Duvall,
Jeffrey P. Reilly, John C. Celeste, MILES & STOCKBRIDGE P.C.,
Baltimore, Maryland, for Appellees.




                               2
AGEE, Circuit Judge:

     National       Union     Fire    Insurance    Company       of   Pittsburgh,    PA

(“National Union”) and ACE American Insurance Co. (“ACE” and

together with National Union, the “Insurers”) appeal from the

district court’s grant of partial summary judgment in favor of

Millennium        Inorganic      Chemicals       Ltd.    and     Cristal    Inorganic

Chemicals Ltd. (collectively, “Millennium”). Millennium sued the

Insurers in the United States District Court for the District of

Maryland,    contending        that    the    Insurers     had   wrongfully     denied

Millennium's        claim      for    coverage     under       contingent     business

interruption        provisions        of     commercial        liability    insurance

policies    issued      by    the    Insurers.    The    district     court    granted

partial summary judgment in favor of Millennium after concluding

that certain terms in the policies were ambiguous and that the

doctrine     of    contra      proferentem       therefore       applied.     For   the

reasons set forth below, we reverse the judgment of the district

court and remand for entry of summary judgment in favor of the

Insurers.



                                             I

                    A        The Insurance Policy Provisions

     In 2008, Millennium enlisted the help of Marsh USA, Inc.

(“Marsh”), an insurance brokerage firm, to secure a commercial

liability     insurance          policy      including      contingent        business

                                             3
interruption (“CBI”) insurance coverage. 1 Marsh solicited bids

from a number of insurers, including National Union and ACE,

seeking CBI coverage and outlining the coverage specifications

Millennium sought, specifically stating only that it required

coverage     “for     direct    suppliers/customers.”              (J.A.    1193.)     In

response, National Union's quote provided, “THERE SHALL BE NO

COVERAGE     FOR    INDIRECT   SUPPLIERS/RECIPIENTS.”              (J.A.    1209.)    ACE

also offered a quote, providing policy limits only for “direct”

suppliers. (J.A. 1217.)

      Millennium       chose   to    purchase        its     commercial          coverage,

including the CBI endorsement, from National Union and ACE, each

of   which    would    bear    responsibility        for     50%    of     Millennium’s

covered losses, up to specified limits. As pertinent to the CBI

coverage,     National     Union    issued      a        Binder    of    Insurance     (a

“Binder”),     which     stated,    “THERE      SHALL       BE     NO    COVERAGE     FOR

INDIRECT SUPPLIERS/RECIPIENTS.” (J.A. 1289.) The National Union

Binder     also     provided   a    sublimit        on     liability       for    “DIRECT

CONTRIBUTING OR RECIPIENT PROPERTY(IES).” (J.A. 1287.) Likewise,


      1
        Generically, business interruption insurance coverage
protects the insured party against losses stemming from
unexpected interruptions of normal business operations resulting
from damage to property caused by a covered hazard. 11 Steven
Plitt et al., Couch on Insurance 3d § 167:9 (2013). A subset of
business interruption coverage, termed CBI coverage, protects
against business losses caused by damage to property not owned
by the insured party. Id. § 167:14. The only provision of the
policies at issue in this case concerns the CBI coverage.


                                        4
ACE   issued    a    Binder    that     provided       a    similar    sublimit   on

“‘Direct’    Contingent       Time    Element[s].”         (J.A.     1305.)   Neither

Binder provided any coverage for “indirect” suppliers.

      Shortly after issuing the Binders, National Union and ACE

separately issued policies to Millennium (the “Policies”) with

essentially identical terms. Each policy included an Endorsement

titled      “CONTINGENT        BUSINESS          INTERRUPTION          CONTRIBUTING

PROPERTY(IES)       ENDORSEMENT”      (the     “Endorsements”).         (J.A.   1392,

1496.)    The   Endorsements         insured    Millennium         against    certain

losses resulting from the disruption of the supply of materials

to    Millennium     caused     by     damage     to       certain    “contributing

properties.” 2 (J.A. 1392, 1496.) Specifically, Section C of the

Endorsements defined events of coverage as insurance

            only against loss directly resulting from
            necessary interruption of business conducted
            on premises occupied by [Millennium], caused
            by damage to or destruction of any of the
            real or personal property described above
            and     referred    to    as    CONTRIBUTING

      2
       The term “contributing properties” means “the insured’s
prime suppliers of materials, parts and services. If the insured
depends upon one or, at most, a few manufacturers or suppliers
for the bulk of materials and supplies necessary to conduct its
business operations, then these suppliers are said to be
contributing properties.” Insuring Real Property § 3.03[2]
(Stephen A. Cozen ed. 2013); (see J.A. 1707). Consistent with
this industry definition, the Endorsements define “contributing
property” by reference to the policy schedules, which state that
covered locations “must be direct suppliers of materials to
[Millennium’s] locations.” (J.A. 1392, 1496.) The parties in
this case use the term “contributing property” interchangeably
with the term “supplier.” (See, e.g., Response Br. 27 n.12.)


                                         5
              PROPERTY(IES) and which is not operated by
              [Millennium],   by   the    peril(s) insured
              against during the term of this Policy,
              which wholly or partially prevents the
              delivery of materials to [Millennium] or to
              others for the account of [Millennium] and
              results directly in a necessary interruption
              of [Millennium’s] business.

(J.A. 1392, 1496.) “Contributing Properties” in Section C of the

Endorsements was thus defined by reference (“described above”)

to    the   preceding     Section       B,    which    establishes         that    only    a

“direct supplier of materials to the Insured's locations” can be

a “contributing property.” Section B provided a “SCHEDULE OF

LOCATION(S),” (the “Schedules”) in which Millennium could list

any   “contributing       property”      that     created      a    risk    of    business

interruption. (J.A. 1392, 1496.)

       A    general    section     of    each     of   the    Policies      set     policy

sublimits and provided that any direct contributing properties

named in the Schedules were covered for $25 million, while any

unnamed     direct     contributing          properties      were   covered       for   $10

million. Millennium did not list any contributing properties on

the provided Schedules. The Endorsements also each contained a

loss-mitigation        provision    requiring          Millennium     to    “use    [its]

influence to induce the CONTRIBUTING PROPERTY(IES) to make use

of    any    other     machinery,        equipment,       supplies         or     location

available      in     order   to    resume        operations        and    delivery       of

materials to [Millennium].” (J.A. 1393, 1497.)


                                              6
                       B       Millennium's Coverage Claim

        Millennium     was     in    the    business      of        processing        titanium

dioxide, a compound often used for its white pigmentation, at

its processing facility in Western Australia. The energy source

for     Millennium’s       titanium        dioxide      processing          operation     was

natural gas received through the Dampier-to-Bunbury Natural Gas

Pipeline (the “DB Pipeline”), Western Australia’s principal gas

transmission       pipeline.        Millennium       purchased        the    gas      under   a

contract    with      Alinta    Sales      Pty    Ltd   (“Alinta”),         a   retail    gas

supplier. Alinta purchased the gas it offered for sale from a

number     of    natural     gas     producers,         one    of    which      was    Apache

Corporation (“Apache”).

        As a natural gas producer, Apache extracted and processed

natural gas from wells on Varanus Island, an island located off

the     coast    of   Western       Australia.       Once      Apache       processed     the

natural gas, it would inject the gas into the DB Pipeline, at

which    point    custody,      title,      and    risk       passed    from     Apache       to

Alinta. The natural gas received from Apache's facility then

comingled with that obtained from other producers, resulting in

an amorphous mix of gas in a single pipeline.

        Apache has no ownership interest in the DB Pipeline and

does not own any downstream gas transmission or distribution

facilities. Alinta retains sole ownership of the gas once it

enters the DB Pipeline. Under Alinta’s end-user contract with

                                             7
Millennium, title to the gas passed to Millennium only at the

time of delivery, i.e., when the gas left the DB Pipeline and

was   delivered    to    Millennium’s        facility    by    way    of    a   separate

delivery line. Millennium’s contract for the purchase of natural

gas   was   solely      with    Alinta.      Millennium      had     no    contract   or

business relationship with Apache, and the contract with Alinta

made no reference to Apache. At the time period relevant to this

appeal, Apache produced about 20% of the natural gas that Alinta

sold.

        On June 3, 2008, an explosion occurred at Apache’s Varanus

Island facility, causing its natural gas production to cease.

Apache notified Alinta that the explosion caused it to shut down

its   operations     and      that   there    would     be    no   gas     supply   from

Varanus Island until further notice. Alinta, in turn, sent a

notice of force majeure to Millennium and other customers. The

Australian    government       quickly    intervened         and   imposed      controls

prioritizing delivery of natural gas to domestic customers and

essential services. As a result, Millennium’s gas supply was

curtailed, and it was forced to shut down its titanium dioxide

manufacturing operations for a number of months.

        Two days after the explosion, on June 5, 2008, Millennium

sent notice of claim letters to National Union and ACE, seeking

CBI coverage for its losses incurred when the titanium dioxide

facility    closed.     The    Insurers      investigated      Millennium’s         claim

                                          8
and provided a detailed report explaining the Australian gas

distribution system and concluding that Apache was not a direct

supplier      to        Millennium.      As       a   consequence,            the     Insurers

determined        there     was     no   coverage         under        the    Policies      for

Millennium’s claim, but invited Millennium to provide evidence

of    a    direct        relationship         between         Millennium        and    Apache

sufficient to establish policy coverage.

      Millennium responded by asserting, inter alia, that Apache

was   a    direct       supplier    to   it   because         Alinta     provided      only    a

service, the delivery of natural gas, whereas Apache provided

the   actual      material     at    issue.       National      Union        reaffirmed     its

denial of Millennium’s claim, contending that Alinta, and not

Apache,     was     the     only     direct        supplier       of     natural      gas     to

Millennium.        There    was     no   further       communication           between      the

parties.



                    C      Proceedings in the District Court

      In    July    2009,     Millennium          filed   a    complaint        against     the

Insurers in the United States District Court for the District of

Maryland,      invoking            the   court’s          diversity          jurisdiction. 3

Millennium requested a declaratory judgment regarding the rights

      3
       Millennium also asserted several claims against Marsh, but
voluntarily dismissed those claims pursuant to Rule 41(a)(1) of
the Federal Rules of Civil Procedure. Millennium’s claims
against Marsh are not at issue on appeal.


                                              9
and liabilities of the parties with respect to the Policies.

Further, Millennium asserted claims of breach of contract 4 and

failure to act in good faith pursuant to section 3-1701 of the

Maryland Courts and Judicial Proceedings Code.

     After the close of discovery, Millennium moved for partial

summary judgment on its declaratory judgment claim, arguing that

the Policies unambiguously covered Millennium’s loss because the

Endorsements did not limit coverage to direct suppliers. The

Insurers    filed     a   joint    cross-motion        for    summary      judgment    on

Millennium’s         declaratory     judgment       and       bad    faith       claims,

contending that the Policies provided coverage only for direct

suppliers      and    that   Apache        was   not    a     direct      supplier     to

Millennium. The Insurers also argued that Millennium failed to

present any evidence in support of its bad faith claim.

     The district court entered an order granting Millennium’s

motion   for     partial     summary       judgment,     denying         the   Insurers’

motion     for     summary   judgment        with      respect      to    Millennium’s

declaratory judgment claim, and granting the Insurers’ motion

with respect to Millennium’s bad faith claim. In an accompanying

opinion,     the     district      court     reviewed        and    interpreted       the


     4
       Millennium’s breach of contract claim was based upon the
Insurers’ refusal to cover Millennium’s CBI losses arising out
of the Varanus Island explosion, and Millennium asserts coverage
only under the Endorsements. Thus, Millennium’s breach of
contract claim must rise or fall with its coverage claim.


                                           10
Policies, 5 concluding that coverage under the Policies extended

only       to    “direct    contributing     properties.”    In   determining   the

meaning of the term “direct contributing property,” the district

court reviewed existing caselaw on CBI coverage.

       The         district     court       concluded   that      “the    physical

relationship between the properties is as or more important than

the legal relationship between the properties’ owners.” (J.A.

1991.) The district court held that Millennium’s contract with

Alinta had “no effect on the physical realities of natural gas

supply          between    [Apache]   and    [Millennium]”     because,   although

Alinta took title to the gas when it traveled through the DB

Pipeline, Alinta “never [took] physical possession of the gas

and [had] no ‘property’ with which to do so.” (J.A. 1991.)



       5
       Finding that the Policies lacked choice of law provisions,
the district court applied a Maryland choice of law analysis to
determine which state’s law applied to the construction of the
Policies. See CACI Int’l, Inc. v. St. Paul Fire & Marine Ins.
Co., 566 F.3d 150, 154 (4th Cir. 2009) (holding that federal
courts exercising diversity jurisdiction “apply the choice of
law rules of the forum state”). Millennium argued in favor of
New Jersey law and the Insurers argued in favor of New York law.
The district court concluded that, under a lex loci analysis,
New York law would apply, but ultimately declined to reach a
decision, reasoning that there was no meaningful difference in
the common law regarding interpretation of insurance policies of
either state. We need not perform a choice of law analysis on
appeal because the parties now agree that there is no
substantive difference between the applicable laws of New York
and New Jersey with respect to the issues in this case, and each
party cites to both New York and New Jersey caselaw. We
therefore cite to the laws of both jurisdictions.


                                             11
      The district court then observed that “the policies do not

define the term ‘direct,’” and concluded that “the term ‘direct’

is ambiguous here, in the context of an entity that provides a

direct physical supply of material to the insured, but has no

direct contractual relationship with the insured.” (J.A. 1993.)

Although the parties presented extrinsic evidence to establish

the meaning of "direct," the district court concluded that none

of that evidence “speaks to the specific meaning the parties

intended by the use of the word ‘direct.’” (J.A. 1994.) In order

to    resolve     the    ambiguity,      the    district      court    applied   the

doctrine     of     contra      proferentem 6     in    favor     of    Millennium.

Accordingly, the district court held that Apache qualified as a

“direct” supplier to Millennium and that Apache’s natural gas

production facility was a “direct contributing property” within

the    meaning      of    the       Policies    “because      Apache’s     facility

physically        provided      a    direct    supply    of     natural    gas    to

Millennium’s       premises,        despite     the    fact     that   Apache    and

Millennium had no direct contractual relationship.” (J.A. 1995.)



      6
       When a court determines that a provision in an insurance
contract is ambiguous and “extrinsic evidence does not yield a
conclusive answer as to the parties’ intent,” the rule of contra
proferentem provides that “where an insurer drafts a policy,
‘any ambiguity in [the] . . . policy should be resolved in favor
of the insured.’” Morgan Stanley Group Inc. v. New England Ins.
Co., 225 F.3d 270, 276 (2d Cir. 2000) (quoting McCostis v. Home
Ins. Co., 31 F.3d 110, 113 (2d Cir. 1994)).


                                          12
      As an alternative holding, the district court opined that

the   Endorsements         also     provided        coverage          for    damage       to

contributing properties “‘which wholly or partially prevents the

delivery    of    materials    to       [Millennium]       or    to   others     for     the

account of [Millennium].’” (J.A. 1995.) The district court then

concluded that this provision was also ambiguous because it did

not explain “who must hold the ‘account of the Insured’—the one

who delivers, or the ‘others’ to whom delivery is made.” (J.A.

1998.)    Based    upon    this     ambiguity,       the    district        court      again

applied    the    doctrine    of    contra      proferentem,          construing        “the

phrase    [‘for   the     account       of’]   in   favor       of   coverage    for     the

insured,” Millennium. (J.A. 1998.)

      After the district court granted Millennium’s motion for

partial summary judgment, the parties stipulated and agreed to

the entry of judgment in favor of Millennium in the amount of

$10,850,000,      inclusive        of     pre-judgment          interest,       with     the

Insurers    expressly        preserving         their      right      to    appeal       the

judgment. The district court then entered final judgment against

the Insurers in the stipulated amount, and the Insurers timely

appealed. We have jurisdiction under 28 U.S.C. § 1291.



                                           II

      We review a district court’s grant of a motion for summary

judgment de novo, construing all facts and reasonable inferences

                                           13
in favor of the non-moving party. Crockett v. Mission Hosp.,

Inc., 717 F.3d 348, 350 n.1, 354 (4th Cir. 2013).



                                        III

       When interpreting insurance contracts, courts first look to

the plain language of the provision at issue. See Fed. Ins. Co.

v. Int’l Bus. Machs. Corp., 965 N.E.2d 934, 935 (N.Y. 2012);

Chubb Custom Ins. Co. v. The Prudential Ins. Co. of Am., 948

A.2d   1285,   1289     (N.J.   2008).    If     the    plain     language          of   the

provision is clear, “that is the end of the inquiry.” Chubb

Custom, 948 A.2d at 1289.

       Beginning with the plain language of the Policies, as the

district court found and Millennium concedes, the Endorsements

provided    coverage     only   with     respect       to    “direct        contributing

properties.”     Millennium      argues        that    the       term       “direct”     is

ambiguous      because    it    could         refer    either          to     the    legal

relationship between the contributing property and the insured

or the physical relationship between those parties. We find the

term “direct” to be clear as used in the Policies and without

ambiguity.

       The term “direct” is defined as “proceeding from one point

to another in time or space without deviation or interruption,”

“transmitted     back     and   forth     without           an   intermediary,”          or

“operating     or     guided    without        digression         or        obstruction.”

                                         14
Webster’s      Third     New   International       Dictionary     640.       Thus,    for

Apache    to     be    considered     a   direct     contributing       property      to

Millennium,      it    must    have   supplied      Millennium        with   materials

necessary to the operation of its business “without deviation or

interruption” from “an intermediary.” 7 Id.

      On the undisputed facts of this case, neither Apache nor

Apache’s       facilities      on   Varanus     Island    can    be    considered       a

“direct    contributing        property”      of   Millennium.    Millennium         does

not   dispute     that    it   received    its     gas   from   Alinta,       and    that

Alinta—and not Apache—had the sole ability to control the amount

of gas directed to Millennium, to determine the rate at which

Millennium would be charged for that gas, and even to shut the

gas off completely. Indeed, Millennium concedes that it has no

legal relationship, direct or otherwise, with Apache.

      7
       Our colleague in dissent argues that the term "direct" is
ambiguous as used in the Policies because the dictionary
contains another definition for the term, "from the source or
the original without interruption or diversion." See Webster's
Third New International Dictionary 640. However, the definition
cited to in the dissent is the adverbial definition of the term
"direct," even though the term is clearly used as an adjective
in   the    operative   policy   phrase,   "direct  contributing
properties." Regardless, the phrase "without interruption or
diversion" as used in the adverbial definition of the term
"direct" has the same meaning as the phrase "without digression
or   obstruction"   as   used  in   the  adjectival  definition,
demonstrating that the term "direct" has a single clear,
unambiguous meaning. Even using the phrase selected by the
dissent, it is unambiguous that there is no "direct" transfer of
gas from Apache to Millennium because of the unescapable fact of
the "interruption or diversion" by the presence of Alinta and
the DB Pipeline as interrupting intermediaries.


                                           15
       Millennium also does not dispute that it received its gas

by way of the DB Pipeline, and that the DB Pipeline is neither

owned nor operated by Apache. Nor does Millennium dispute that

Apache relinquished both legal title and physical control over

the gas once it entered the DB Pipeline. In fact, Millennium

concedes      that    Apache   had     no      control    over   whether          Millennium

received its gas and that, due to commingling, Millennium could

not    demonstrate      how    much,      if    any,     of    the    gas     it    received

originated      with    Apache.       Thus,      neither       Apache       nor     Apache’s

facilities had a direct physical relationship with Millennium.

       Whatever the relationship between Apache and Millennium, it

was clearly interrupted by “an intermediary,” Alinta, who took

full       physical    control       of     Apache’s      gas        before       delivering

indistinguishable          commingled            gas      to         Millennium.        That

relationship was also interrupted by an intervening step, the

physical insertion of the gas into the DB Pipeline, at which

point Apache relinquished all physical control over that gas.

Under any view of the relevant facts, Apache can therefore be

only an indirect contributing property to Millennium, coverage

of which is not included in the terms of the Policies. 8


       8
       The Insurers failed to argue in their briefing that the
Binders, which stated directly that “THERE SHALL BE NO COVERAGE
FOR   INDIRECT  SUPPLIERS/RECIPIENTS,”  J.A.   1289,  were   the
operative documents at the time of the explosion on Varanus
Island. Had the Insurers properly made that argument before this
(Continued)
                                            16
       Having     concluded    that,     on   the    plain   language   of   the

Policies,     Apache   cannot      be   considered    a    direct   contributing

property     to   Millennium,      we   consider    Millennium’s     alternative

argument that it could also receive coverage under the “for the

account of” clause of the Endorsements. Millennium’s alternative

contention fails for the same reason as its primary argument.

Under the plain language of the Policies, coverage is triggered

only    by   damage    to     or   destruction       of   direct    contributing

properties. Because Apache is at most an indirect supplier to

Millennium, there can be no coverage under any reading of the

“for the account of” clause. Therefore, Millennium presents no

plausible reading of the Policies under which it could receive

coverage for its CBI losses. 9



                                         IV

       For the foregoing reasons, the judgment of the district

court is reversed, and we remand the case to the district court

for entry of summary judgment in favor of the Insurers.



                                                          REVERSED AND REMANDED



Court, that language would also demonstrate that Millennium had
no coverage on the facts of this case.
     9
       As we find no basis for coverage of Millennium’s CBI
losses under the Endorsements, Millennium’s breach of contract
claim, as pleaded, also must fail.


                                         17
WYNN, Circuit Judge, dissenting:

      On   June    3,    2008,       a    massive       explosion      at   a   natural      gas

production facility on Varanus Island, Australia disrupted the

availability       of        natural       gas    throughout         Western        Australia.

Appellant Millennium’s supply of natural gas ceased later that

same day, requiring it to shut down operations at its titanium

dioxide production facilities, and resulting in over $10 million

in damages.        The sole question we must decide is whether the

contingent business interruption endorsements of the insurance

contracts between Millennium and Appellees National Union and

ACE   (together,        the     “Insurers”)           require    the    latter       to    cover

Millennium’s losses.

      Although      the        majority          opinion       provides     a       reasonable

interpretation          of     the       disputed       portions       of   the     insurance

policies, the district court articulated an equally reasonable

alternate interpretation.                 Because “no writing is unambiguous if

‘susceptible      of     two    reasonable            interpretations[,]’”          Atalla    v.

Abdul-Baki,       976    F.2d    189,       192       (4th    Cir.   1992),     I    find    the

policies to be ambiguous.                 Like the district court, I would thus

evaluate    the     extrinsic            evidence       for     an   indication       of     the

parties’    intent       in    drafting       the      ambiguous     policy       provisions.

And like the district court, I would find that none of the

proffered evidence reveals that intent.                         It follows that I would

affirm the district court’s decision to apply the doctrine of

                                                 18
contra     proferentem      to    resolve      the   ambiguity       in      favor      of

Millennium     and    against     the    Insurers.          Accordingly,       I     must

respectfully dissent.



                                          I

                                          A

     For the policy year at issue, 2008–09, Millennium obtained

insurance    coverage       through     its   broker,      Marsh.        Millennium’s

coverage consisted of “master policies” issued by National Union

and ACE and local policies issued by Australian companies.                           The

master policies covered Millennium for up to $450 million per

occurrence     in    aggregate     losses,      with       each    insurer       bearing

responsibility       for    50%   of    any   covered      loss.       The    disputed

provisions     are    for    contingent       business      interruption         (“CBI”)

coverage, which is “a relatively recent development in insurance

law[.]”     Zurich Am. Ins. Co. v. ABM Indus., Inc., 397 F.3d 158,

168 (2d Cir. 2005).

     CBI    coverage       “protects     against     the    loss    of    prospective

earnings because of the interruption of the insured’s business

caused by an insured peril to property that the insured does not

own, operate, or control.”              CII Carbon, L.L.C. v. Nat’l Union

Fire Ins. Co. of La., Inc., 918 So. 2d 1060, 1061 n.1 (La. Ct.

App. 2005).     CBI coverage is distinct from “[r]egular business

interruption     insurance[,       which]     replaces       profits      lost     as   a

                                         19
result    of    physical   damages    to    the   insured’s”   own   property.

Archer Daniels Midland Co. v. Hartford Fire Ins. Co., 243 F.3d

369, 371 (7th Cir. 2001).

     Endorsement 8 of each of Millennium’s master policies sets

forth the CBI coverage.        The relevant portion of Endorsement 8

reads as follows:

                     CONTINGENT BUSINESS INTERRUPTION
                         CONTRIBUTING PROPERTY(IES)
                       (Not Operated By The Insured)

     A.        AMOUNT OF INSURANCE:

          $(As   per   declarations)      Only   against  loss
     directly resulting from necessary interruption of
     business   conducted   on   premises   occupied   by  the
     insured, caused by damage to or destruction of any of
     the real or personal property described below and
     referred to as CONTRIBUTING PROPERTY(IES) and which is
     not operated by the Insured, by the peril(s) insured
     against during the term of this Policy, which wholly
     or partially prevents the delivery of materials to the
     Insured or to others for the account of the Insured
     and results directly in a necessary interruption of
     the Insured’s business.

     B.        SCHEDULE OF LOCATION(S):

     The following locations must be direct suppliers of
     materials to the Insured’s locations or coverage is
     deemed to be void:
                            CONTINGENT
  LOCATION NO.       CONTRIBUTING PROPERTY LIMIT OF LIABILITY

                                DIRECT ONLY               AS STATED IN
                                                          DECLARATIONS 1


     1
       The most significant difference between the National Union
and the ACE Endorsements is that the ACE policy contains the
phrases “DIRECT ONLY” and “AS STATED IN DECLARATIONS” as shown
(Continued)
                                       20
     C.        COVERAGE:

     Subject to all terms, conditions and stipulations of
     the Policy to which this endorsement is attached, not
     in conflict herewith, this Policy is extended to cover
     only against loss directly resulting from necessary
     interruption   of  business   conducted  on   premises
     occupied by the Insured, caused by damage to or
     destruction of any of the real or personal property
     described above and referred to as CONTRIBUTING
     PROPERTY(IES) and which is not operated by the
     Insured, by the peril(s) insured against during the
     term of this Policy, which wholly or partially
     prevents the delivery of materials to the Insured or
     to others for the account of the Insured and results
     directly in a necessary interruption of the Insured’s
     business.

J.A. 336, 450

     The       value    of    the     CBI    coverage        is    set       forth    in     the

Declarations      of    the    master       policies.        The       coverage      limit    is

$25,000,000      for     locations      that      Millennium           has   named    in     the

policy, whereas the coverage limit is $10,000,000 for locations

that are not named or listed in the policy.                              The Declarations

refer     to     both     named       and     unnamed        locations          as    “DIRECT

CONTRIBUTING OR RECIPIENT PROPERTY(IES).”                     J.A. 303, 416.



                                              B

     The       salient        facts     giving      rise          to     this     suit       are

straightforward         and     undisputed.             At    all        relevant      times,




here. The National Union policy, by contrast, contains nothing
in the columns shown above.


                                             21
Millennium was in the business of producing titanium dioxide, a

white pigment used in a variety of applications including paints

and plastics.        Millennium operated two interdependent factories

near Bunbury, Australia, which relied primarily on natural gas

for     energy.       Like    many     businesses        in   Western       Australia,

Millennium      purchased     its    natural     gas   from    a   supplier     or    an

aggregator, rather than directly from a producer.                           Millennium

had a natural gas supply contract with one such entity, Alinta

Sales Pty Ltd. (“Alinta”).

      Alinta      obtained    the    gas     that   it    resold     from    multiple

producers    in    Western     Australia,        including    Apache    Corporation

(“Apache”), which supplied at least 20% of the gas that Alinta

bought and resold.          Pursuant to the agreement between Alinta and

Apache, Alinta took title to Apache’s gas when the gas entered a

major    Western    Australian       gas    transmission      line   known     as    the

Dampier    to     Bunbury    Natural       Gas   Pipeline     (“Pipeline”).          The

Pipeline is a government-regulated common carrier owned by third

parties who charge pipeline users a fee based on the distance

their gas travels.           After the gas leaves the Pipeline, it is

transported to end users via a network of distribution lines.

      Alinta consumes a small amount of the natural gas that it

purchases for its own operations.                 And although it takes title

to the gas, it never physically possesses the gas that it sells

to its customers because it does not own the transmission or

                                            22
distribution facilities. 2             Indeed, because the gas molecules are

commingled as soon as they enter the Pipeline, it is impossible

to tell either the source or the owner of any given molecule at

any       given   time.         Notwithstanding          the     impossibility     of

determining the source or the ownership of any particular gas

molecule, the title to a specified volume of gas passed from

Alinta      to    Millennium      at    the     inlet    point    of   Millennium’s

production facilities.

      On June 3, 2008, a massive explosion and fire occurred at

Apache’s production facilities on Varanus Island, off the coast

of Western Australia.           The explosion caused the interruption of

20%   to    30%   of    the   natural    gas    supply    in   Western    Australia.

Apache immediately issued a notice of force majeure to Alinta,

and Alinta immediately issued the same to Millennium.                         Shortly

thereafter, Millennium notified the Insurers of its claim of

lost business income through its broker, Marsh.                          The parties

agree      that   the   damages    total       $10,850,000,      but   the   Insurers

denied Millennium’s claim because “[t]here is no direct supply

of gas between [Millennium] and Apache.”                 J.A. 760.

      2
       The Insurers seem to dispute Millennium’s statement that
Alinta never took physical possession of the gas.       But they
offer no evidence to establish that the gas that they purchased
ever made its way into a vessel that was owned or controlled by
Alinta.   The Insurers merely reassert that Alinta owned the
title to the gas after it was injected into the Pipeline, a fact
that is neither disputed nor probative of whether Alinta
physically possessed the gas.


                                           23
                                                       C

       On    July       17,     2009,       Millennium            filed    this    suit          alleging,

among other things, declaratory relief, breach of contract, and

bad    faith.                After    a        lengthy          discovery       process          and     the

presentation of a “virtual cornucopia of extrinsic evidence,”

Millennium Inorganic Chems. v. Nat’l Union, 893 F. Supp. 2d 715,

736    (D.    Md.       2012),       the       parties       submitted      cross          motions       for

summary judgment.

       In a well-reasoned opinion, the district court analyzed the

language of the policies and determined that multiple reasonable

interpretations               existed          for         two     disputed        provisions             in

Endorsement 8.               The district court then analyzed the extrinsic

evidence       and      found        that      “none       of     it   presents        a    dispute       of

material fact for a fact finder to resolve[] because none of the

extrinsic       evidence         sheds         light        on    what    the     parties’         mutual

intent       was        at     the     time       that           the   Master      Policies            were

established.”            Id.     The district court thus applied the doctrine

of    contra       proferentem            to    resolve          the   ambiguity           in    favor    of

Millennium         by    holding          that    “Apache’s            natural     gas          production

facility was a ‘direct contributing property’ to Millennium’s

Bunbury Operations, . . . because Apache’s facility physically

provided       a     direct          supply       of       natural        gas     to       Millennium’s

premises, despite the fact that Apache and Millennium had no

direct contractual relationship.”                                Id. at 737.               The district

                                                     24
court     conducted   a     similar        analysis     and        reached     the     same

conclusion as to the second disputed phrase in Endorsement 8,

“for the account of the Insured.”                See id. at 737–39.

     The district court granted Millennium’s motion for partial

summary judgment regarding its declaratory judgment claim and

granted    the    Insurers’       motion    for    summary      judgment       regarding

Millennium’s bad faith claim.                   The parties jointly moved for

entry of judgment, which the district court granted on January

11, 2013.    The Insurers appealed.



                                           II

     The    parties   initially       disputed        whether       New   York   or     New

Jersey     law    governs     the    interpretation           of     their     insurance

contracts.         Like     the     district      court,      I      perceive        little

difference between the two states’ laws.                 See Millennium, 893 F.

Supp. 2d at 728.

     In both states:          Insurance contracts are to be interpreted

according to their “plain and ordinary meaning.”                             Voorhees v.

Preferred Mut. Ins. Co., 607 A.2d 1255, 1260 (N.J. 1992).                              See

also Fieldston Prop. Owners Ass’n, Inc. v. Hermitage Ins. Co.,

Inc., 945 N.E.2d 1013, 1017 (N.Y. 2011) (“In resolving insurance

disputes,    we    first    look     to    the    language      of    the     applicable

policies.    If the plain language of the policy is determinative,

we cannot rewrite the agreement by disregarding that language.”)

                                           25
(citations omitted).           But “[i]f the terms of the contract are

susceptible        to     at         least          two      reasonable     alternative

interpretations, an ambiguity exists.”                       Chubb Custom Ins. Co. v.

Prudential Ins. Co. of Am., 948 A.2d 1285, 1289 (N.J. 2008).

See Mostow v. State Farm Ins. Cos., 668 N.E.2d 392, 394 (N.Y.

1996) (“Because the policy may be reasonably interpreted in two

conflicting manners, its terms are ambiguous.”).

       If a provision is ambiguous, “a court may look to extrinsic

evidence as an aid to interpretation.”                       Chubb, 948 A.2d at 1289.

See Greenfield v. Philles Records, Inc., 780 N.E.2d 166, 170

(N.Y. 2002) (“Extrinsic evidence of the parties’ intent may be

considered only if the agreement is ambiguous, which is an issue

of    law   for   the   courts       to   decide.”).           Extrinsic    evidence    is

relevant only if it sheds light on the parties’ intent at the

time of contracting.           Newin Corp. v. Hartford Acc. & Indem. Co.,

467 N.E.2d 887, 889 (N.Y. 1984).                     And if a determination as to

the    parties’    intent      turns      on     “the       credibility    of   extrinsic

evidence[,]” “such determination is to be made by the jury.”

Hartford Accident & Indem. Co. v. Wesolowski, 305 N.E.2d 907,

909 (N.Y. 1973).

       In   the    absence      of    clear         policy     language    or    relevant

extrinsic     evidence,      courts       must       rely    on   additional    rules   of

contract interpretation to apply the terms of an ambiguously

worded provision to the facts at hand.                         “[C]overage provisions

                                               26
are to be read broadly, exclusions are to be read narrowly,

potential ambiguities must be resolved in favor of the insured,

and the policy is to be read in a manner that fulfills the

insured’s reasonable expectations.”                         Selective Ins. Co. of Am.

v. Hudson East Pain Mgmt. Osteopathic Medicine, 46 A.3d 1272,

1277 (N.J. 2012).            See Westview Assocs. v. Guaranty Nat’l Ins.

Co., 740 N.E.2d 220, 223 (N.Y. 2000) (“If the language of the

policy is doubtful or uncertain in its meaning, any ambiguity

must   be     resolved       in    favor      of     the     insured    and     against        the

insurer.”)         (citation       omitted).           “When    an     insurance     carrier

drafts an ambiguously worded provision and attempts to limit its

liability      by    relying       on    it,    we     will     construe      the   language

against the carrier.”              Metro. Prop. & Cas. Ins. Co. v. Mancuso,

715 N.E.2d 107, 112 (N.Y. 1999).

       “It    has     long        been    the        rule    that      ambiguities        in    a

contractual         instrument       will      be     resolved      contra      proferentem,

against      the    party    who    prepared         or     presented    it.”       151    West

Assocs. v. Printsiples Fabric Corp., 460 N.E.2d 1344, 1345 (N.Y.

1984).       When     construing         an    ambiguous       policy,     “courts    should

consider whether more precise language by the insurer, had such

language been included in the policy, ‘would have put the matter

beyond reasonable question.’”                        Gibson v. Callaghan, 730 A.2d

1278, 1282 (N.J. 1999) (quoting Mazzilli v. Accident & Cas. Ins.

Co., 170 A.2d 800, 803 (N.J. 1961)).

                                                27
      In    short,   these       cases    convincingly       show    that   there    is

little difference between the two states’ laws.                         But to the

extent that applicable New York and New Jersey law differ, it is

with respect to contra proferentem.                   Whereas New York seems to

use the doctrine anytime a contract is not jointly drafted, New

Jersey seems to require unequal bargaining power before it will

favor an insured.          Compare Taylor v. U.S. Cas. Co., 199 N.E.

620, 622 (N.Y. 1936) with Chubb, 948 A.2d at 1294 and Pacifico

v. Pacifico, 920 A.2d 73, 78 (N.J. 2007).

      Here, this is a distinction without a difference.                     Although

Millennium is a sophisticated commercial entity and employed a

broker      to   obtain    its    policies,      it    did     not   possess   equal

bargaining power with the Insurers.                   Therefore, even under New

Jersey law, contra proferentem would still be available.                            But

were it necessary to choose between New York and New Jersey law,

I   would    apply   New   York     law    for   the    same    reasons     that    the

district court articulated.              Millennium, 893 F. Supp. 2d at 727

(conducting a lex loci analysis and determining that New York

law would apply because both policies were countersigned by the

Insurers in New York).




                                           28
                                        III

                                         A

       Turning now to the Insurers’ appeal, summary judgment shall

be granted “if the movant shows that there is no genuine dispute

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

as a matter of law.”            Fed. R. Civ. P. 56(a).        We review the

district court’s grant of a motion for summary judgment de novo.

See Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th Cir.

1995).

       Where, as here, the district court considered cross motions

for summary judgment, we “must review each motion separately on

its    own    merits   to   determine    whether   either    of   the   parties

deserves judgment as a matter of law.”              Rossignol v. Voorhaar,

316 F.3d 516, 523 (4th Cir. 2003) (quotation marks omitted).                In

considering each motion, we “resolve all factual disputes and

any competing, rational inferences in the light most favorable

to    the    party   opposing   that   motion.”    Id.      (quotation   marks

omitted).



                                        B

       The majority opinion outlines a reasonable interpretation

of the disputed portions of Endorsement 8.                  For example, the

majority opinion provides a dictionary definition of “direct”

and concludes that under its chosen definition, “neither Apache

                                        29
nor Apache’s facilities on Varanus Island can be considered a

‘direct contributing property’ of Millennium.”                    Ante at 15.

       The problem for the majority opinion’s reasoning is that

other equally reasonable alternative explanations exist.                             For

example, an alternate definition for “direct” can be found on

the   same    page   of    the    same    dictionary      as   that    cited    in   the

majority opinion, yet it supports the conclusion that Apache was

indeed a direct contributing property.                    Specifically, “direct”

is    also   defined      as   being     “from     the   source   or   the     original

without      interruption        or     diversion.”        Webster’s       Third     New

International Dictionary 640.               As stated by the district court:

“Regardless     of     whether        Millennium    contracted     with    Alinta     or

contracted     directly        with    Apache,     the   pressurized      natural    gas

still would flow directly from Apache’s facility through the

[Pipeline] to Millennium’s Bunbury Operations by operation of .

. . the law of physics.”                 Millennium, 893 F. Supp. 2d at 735

(quotation marks omitted). 3


       3
       The majority opinion takes issue with the definition cited
above, noting that it is “the adverbial definition of the term
‘direct,’ even though the term is clearly used as an adjective
in the operative policy phrase, ‘direct contributing property.’”
Ante at 15 n.7.     But the issue here is not whether the term
“direct” is an adverb that modifies the word “contributing” or
an adjective that modifies the term “contributing property.”
Nor is the issue a question of which of the over 200 available
dictionaries we should selectively choose to find the definition
that satisfies our own interpretation of the policies.       See,
e.g.,   OED   Online,   http://www.oed.com/view/Entry/53293?rskey
(Continued)
                                           30
       Moreover, no evidence suggests that Alinta has the ability

to divert natural gas once it is injected into the Pipeline.                                        In

fact,    because       it    does    not        own    any     of    the       transmission         or

distribution         lines    through      which        the    natural          gas    flows,     the

evidence indicates that Alinta has just as much physical control

over the gas as does Apache, which is to say, none.                                   Because the

policies do not describe the nature of the direct relationship

required for something to be a “direct contributing property,” I

find    this    to    be     sufficient         for    Millennium          to    withstand        the

Insurers’ motion for summary judgment.

       In   fact,      and    as    explained          by     the    district         court,      the

language       of     Endorsement          8     is     written           in    terms       of    the

relationships         between       physical           properties          rather          than   the

relationships         between       people            and     entities.               First,      the

Endorsement         uses    the    words       “CONTRIBUTING             PROPERTY(IES)        for    a

subtitle.”          Second, Section “B” limits coverage to “locations”

that must be direct suppliers.                    Third, Section “C” covers losses

attributable         to    damage    or        destruction          of    “real       or    personal



=x0vIbu&result=2&isAdvanced=false (last visited Feb. 06, 2014)
(defining the adjectival form of “direct” as “[s]traight,
undeviating in course; not circuitous or crooked”) and Oxford
Dictionaries     Online,    http://www.oxforddictionaries.com/us/
definition/american_english/direct?q=direct (last visited Feb.
6, 2014) (defining the adjectival form of “direct” as “extending
or moving from one place to another by the shortest way without
changing direction or stopping”).



                                                 31
property . . . not operated by the Insured . . . .”                             All of this

“suggests that the physical relationship between the properties

is as or more important than the legal relationship between the

properties’ owners.”              Millennium, 893 F. Supp. at 735.

      Additionally, the fact that it is impossible to trace any

of the gas molecules to Apache is of no import in determining

whether    a    physical          relationship        existed        between    Apache      and

Millennium.       If it mattered where each molecule came from or

which molecule belonged to whom, Alinta would have no way of

knowing    that        it     actually        owned     any     of     the    gas   that    it

transferred to its customers.                   The Insurers’ arguments regarding

the gas molecules are simply a red herring.



                                                 C

      To   be    sure,       reasonable         alternate       interpretations       of    the

contested provisions of Endorsement 8 exist.                            As I noted above,

the majority opinion provides one such reasonable interpretation

for each provision.                 The district court provides a few more.

See   Millennium,           893   F.    Supp.    2d   at      736.      For    example,     the

district       court        noted      that     “[i]t      is    not     an    unreasonable

interpretation         of     the      Master    Policies       to     conclude     that,    by

providing only ‘direct’ CBI coverage, the Insurers sought to

limit their exposure to situations in which the insured lacked

the kind of influence over a contributing property that comes

                                                32
with contractual privity.”                 Millennium, 893 F. Supp. 2d at 736.

But, as with the other reasonable interpretations, “the Master

Policies      do   not     say      this     expressly[,]”             id.      and     the    plain

language     of    the    policies        cannot       resolve        the    ambiguity.           The

district      court      also      explained      that        the    “for     the       account   of

clause” was ambiguous because the policies fail to name a party

who must hold the account, and one could reasonably conclude

that either Apache or Alinta could “hold the ‘account of the

Insured’” to trigger coverage.                    Id. at 739.               The only thing we

can    conclude       from      this      recitation          of     competing          reasonable

interpretations          is     that      the     language           of     the     policies      is

ambiguous.         See     Atalla,        976    F.2d    at     192       (“[N]o        writing   is

unambiguous           if            susceptible               of          two           reasonable

interpretations[.]”) (quotation marks omitted).

       I    would,     therefore,          proceed       to        analyze        the    extrinsic

evidence submitted by the parties.                       Although the record in this

case   is    nearly      2,200      pages       long,    I     agree      with     the    district

court’s      conclusion         that      none    of     the        extrinsic       evidence      is

admissible because none of it provides evidence of the parties’

intent at the time the provisions of Endorsement 8 were drafted.

See Millennium, 893 F. Supp. 2d at 737, 739.

       Because     none       of    the    extrinsic          evidence       is       relevant     or

admissible, there is nothing for a jury to consider, and it is

“the       responsibility           of     the        court     to        interpret           written

                                                 33
instruments.”       Wesolowski, 305 N.E.2d at 909 (internal citation

omitted).      We must, therefore, rely on well-settled rules of

contract interpretation to decide the case.

     Here, the district court applied the doctrine of contra

proferentem    to    construe   the   ambiguous    policies       in   favor   of

Millennium and against the Insurers, and it granted Millennium’s

motion   for    partial   summary     judgment    as   to   its    declaratory

judgment claim.       Millennium, 893 F. Supp. 2d at 739.               I agree

with the district court, and I would, therefore, affirm.                       For

this and the other reasons discussed above, I must respectfully

dissent.




                                      34
