                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-2160


AUGUSTINE F. FORKWAR,

                Plaintiff - Appellant,

           v.

EMPIRE FIRE AND MARINE INSURANCE COMPANY,

                Defendant - Appellee.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.    William Connelly, Magistrate Judge.
(8:09-cv-01543-WGC)


Argued:   May 16, 2012                    Decided:   June 27, 2012


Before WILKINSON, GREGORY, and FLOYD, Circuit Judges.


Affirmed by unpublished opinion.       Judge Gregory wrote      the
opinion, in which Judge Wilkinson and Judge Floyd joined.


ARGUED: Michael S. Blumenthal, BLUMENTHAL & ASSOCIATES, LLC,
Landover, Maryland, for Appellant. Joseph Wolf, GOODELL DEVRIES
LEECH & DANN, LLP, Baltimore, Maryland, for Appellee. ON BRIEF:
Linda S. Woolf, GOODELL DEVRIES LEECH & DANN, LLP, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:

      This   case    involves      a    dispute       over    whether   Appellee,      an

insurance company, is obligated under the terms of an insurance

contract to pay Appellant for injuries he suffered in a car

accident.      The    district     court        granted      Appellee’s     motion    for

summary    judgment,    finding        there    was    no    such   obligation.        We

affirm.



                                           I.

      Hameed   Mahdi    was    a   contractor          for    J&J   Logistics,     Inc.,

working under an independent contractor agreement.                         Mahdi leased

his tractor to J&J, and J&J paid Mahdi for its exclusive use of

the   tractor.       Pursuant      to   the     contract,      Mahdi    called     J&J’s

office each morning to see if J&J had a job for him to do.                             On

November 25, 2004, Mahdi called J&J and was instructed to pick

up a load at the Giant Food warehouse in Jessup, Maryland at

midnight on November 26.            Mahdi left his home late at night on

the   26th   and     began    to   drive       to    Jessup.        J&J’s    Interstate

Commerce     Commission       (“I.C.C.”)         numbers      and    the    name     “J&J

Logistics” were on his tractor.                     On the way to Jessup, Mahdi

decided to stop to grab something to eat, but before he could

exit the highway he was involved in an accident with Appellant

Augustine Forkwar.



                                                2
        Mahdi had been issued a commercial auto insurance policy

(“the       Policy”)    by     Appellee    Empire     Fire   &    Marine    Insurance

Company (“Empire”).             After receiving notice of the accident,

Empire conducted a routine investigation.                        It determined that

the   “business        use”    exception   to   the    Policy     applied    and   that

Empire was therefore under no obligation to defend or indemnify

Mahdi for the accident.             The business use exception provides:

        This Insurance does not apply to any of the following . . .

        14. BUSINESS USE

                  “Bodily injury” or “property damage” while a
                  covered “auto” is used to carry people or
                  property in any business or while a covered
                  “auto” is used in the business of anyone to whom
                  the “auto” is leased or rented.

J.A. 134, 138.

        In October of 2006, Forkwar filed suit (“the underlying

action”) against both Mahdi and J&J seeking $500,000 in damages.

The   lawsuit        alleged    that   Mahdi    negligently       caused    injury    to

Forkwar in connection with the accident and that J&J was liable

under       the    doctrine    of    respondeat     superior.        Based    on     its

investigation and interpretation of the business use exception,

Empire declined to defend Mahdi.                    At trial, Forkwar made no

effort to affirmatively demonstrate that J&J was liable. 1                     In his


        1
       While Appellant never explains his strategy, it appears
that he brought suit against J&J solely to have a verdict
entered in J&J’s favor on the respondeat superior claim, which
he believes collaterally estops Empire from asserting the
(Continued)
                                                3
opening statement, Forkwar’s attorney told the jury that the

judge “will take care of J&J, and I expect that they will be

walking out of the courtroom.”            He said he would “attempt to

show ironically that J&J didn’t have anything to do with Mr.

Mahdi.”   And when J&J made a mid-trial motion for judgment as a

matter of law, Forkwar did not oppose the motion.                  Mahdi also

failed to show up to the trial.          The jury later found that Mahdi

was   negligent   in   the   operation    of   his   vehicle      and   awarded

Forkwar $180,756.67.

      After   securing   judgment   against      Mahdi    in   state    court,

Forkwar filed this action in the Circuit Court of Maryland for

Prince George’s County.        Empire removed the case to the U.S.

District Court for the District of Maryland, and the parties

filed cross-motions for summary judgment.                The district court

denied Forkwar’s motion for summary judgment, granted Empire’s

cross-motion for summary judgment, and denied Forkwar’s counter

motion for summary judgment.      This timely appeal followed.



                                    II.

      Forkwar makes two arguments on appeal.             She first contends

that the district court erroneously determined that Empire was



business use      exception.     For     the   reasons    given    below,   we
disagree.



                                          4
not   collaterally       estopped   by   the      judgment       in    the   underlying

action from arguing that the business use exception applies.

Second, she argues on the merits that the business use exception

does not bar coverage.        We reject both of these arguments.

      This Court reviews the grant or denial of summary judgment

de novo.     Overstreet v. Kentucky Life Ins. Co., 950 F.2d 931,

938 (4th Cir. 1991).          Summary judgment is appropriate “if the

pleadings,        depositions,      answers        to     interrogatories,           and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.”

FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986).     The Court must construe the facts in the light most

favorable to the non-moving party.                 Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986).                   In diversity cases, federal

courts    apply    the   substantive     law      of    the    state    in   which   the

action was brought.        Erie Railroad Co. v. Tompkins, 304 U.S. 64,

78 (1938).    Here, Maryland substantive law governs.

                                         A.

      Appellant argues that the district court erred in failing

to find the Appellee was collaterally estopped from claiming

that the business use exception applies.                      Under Maryland law, a

party seeking to invoke collateral estoppel must satisfy a four-

part test:

                                              5
     1. Was the issue decided in the prior adjudication
        identical with the one presented in the action in
        question?
     2. Was there a final judgment on the merits?
     3. Was the party against whom the plea is asserted a
        party or in privity with a party to the prior
        adjudication?
     4. Was the party against whom the plea is asserted
        given a fair opportunity to be heard on the issue?

Colandrea v. Wilde Lake Cmty. Ass’n, 761 A.2d 899, 909 (Md.

2000) (citations omitted).

     Appellant cannot meet her burden because the issue in the

underlying action is not identical to the one presented by this

case.     Under Maryland law, the doctrine of respondeat superior

permits    “an    employer      to    be   held   vicariously    liable   for    the

tortious conduct of its employee when that employee was acting

within    the    scope    of    the   employment     relationship.”       Oaks    v.

Connors, 660 A.2d 423, 426 (Md. 1995).                  But because “a strict

application of the doctrine . . . in the modern commercial world

would result in great injustice,” Maryland law holds

  that a master will not be held responsible for negligent
  operation of a servant’s automobile, even though engaged
  at the time in furthering the master’s business, unless
  the master expressly or impliedly consented to the use of
  the automobile, and had the right to control the servant
  in its operation, or else the use of the automobile was
  of such vital importance in furthering the master’s
  business that his control over it might reasonably be
  inferred.

Gallagher’s      Estate    v.    Battle,      122   A.2d   93,   97   (Md.   1956)

(emphasis omitted).            As a result, there are four elements to


                                              6
establish respondeat superior in Maryland: (1) the existence of

an employer-employee relationship 2; (2) the tortious act must

have occurred “within the scope of the employment relationship”;

(3) the employer consented, explicitly or implicity, to the use

of the automobile; and (4) the employer had the right to control

the employee in the operation of the automobile or the use of

the automobile was vitally important in furthering the master’s

business.

      In contrast, the business use exception applies whenever “a

covered     ‘auto’    is   used    to    carry     people   or    property     in   any

business or while a covered ‘auto’ is used in the business of

anyone to whom the ‘auto’ is leased or rented.”                         Plainly, the

respondeat superior doctrine and the business use exception are

not identical issues.             While respondeat superior requires the

existence of an employer-employee relationship, the business use

exception has no such element.              Thus, an individual like Forkwar

who   was    acting    “in   the        business    of”     J&J   but    who   is   an

independent contractor rather than employee would be subject to

the Policy’s exclusion without falling under the doctrine of

respondeat superior.

      2
       Maryland courts resolve this question by asking whether
the employer had the right “to control and direct the employee
in the performance of the work and in the manner in which the
work is to be done.” B.P. Oil Corp. v. Mabe, 370 A.2d 554 (Md.
1977).



                                              7
       While the Appellant never makes this argument in her brief,

she could have relied on some of the Court of Special Appeals of

Maryland’s language in Empire Fire & Marine Ins. Co. v. Liberty

Mutual Ins. Co, 699 A.2d 482 (Md. Ct. Sp. App. 1997).                                There, in

construing Empire Fire’s business use exception, the court said

that   it    would        “follow   the     course       of    other     courts      that     have

sought      guidance       from     the     analogous         common     law       doctrine    of

respondeat     superior.”             Id.   at     495.        This    suggests       that     the

application         of     the    business         use    exception        and      respondeat

superior are identical issues.                   It is true that the requirement

in the business use exception that bodily injury occur while an

auto “is used in the business of anyone” is quite similar to the

second element for respondeat superior, that the accident occur

“within the scope of the employment.”                          However, that is not to

say that all of the elements are identical.                           Respondeat superior

requires that there be an employer-employee relationship, and

Maryland      --     like     other       states    --     recognizes          a    distinction

between an employee and an independent contractor.                                  See, e.g.,

Greer Lines Co. v. Roberts, 139 A.2d 235 (Md. 1958) (“Whether

the relation of the parties is that of master and servant, or

employer     and     independent          contractor,          depends    upon       the    facts

. . . .”).           In     contrast,       no   language        in    the     business       use

exception          suggests       there       must        be     an      employer-employee

relationship; it requires only that the accident occur while the

                                                    8
auto is used in someone’s business.               Thus at best Appellant has

proven that one of the four elements of respondeat superior are

met, but cannot establish the remaining three.                      We therefore

reject Appellant’s collateral estoppel claim.

                                       B.

     Appellant goes on to argue that the district court erred in

finding    that     the    business    use       exception      applies      to   the

underlying action.          Maryland law construes insurance policies

like any other contract.           E.g., N. River Ins. Co. v. Mayor &

City Council of Balt., 680 A.2d 480 (Md. 1996).                          “The first

principle of construction of insurance policies in Maryland is

to apply the terms of the contract” to determine the scope and

limitations of coverage.          Mutual Fire, Marine & Inland Ins. v.

Vollmer, 508 A.2d 130, 133 (Md. 1986).                 The policy is reviewed

as   a    whole,    without      putting     emphasis      on     any    particular

provision.     Sullins v. Allstate Ins. Co., 667 A.2d 617 (Md.

1995).      Finally,      when   examining       the   policy’s    language,      the

“ordinarily   and    usually     accepted”       meaning   should       be   applied,

Aragona v. St. Paul Fire & Marine Ins. Co., 378 A.2d 1346 (Md.

1977), unless the parties intended to use the word “in a special

or technical sense.”          Cheney v. Bell Nat’l Life Ins. Co., 556




                                             9
A.2d 1135, 1138 (Md. 1989). 3                    Unlike most states, Maryland does

not apply the rule that insurance policies are construed against

the insurer.            Empire Fire & Marine Ins. Co. v. Liberty Mutual

Ins. Co., 699 A.2d 482, 494 (Md. Ct. Spec. App. 1997).

      In       Empire    Fire      v.    Liberty    Mutual,       the    Maryland       Special

Court     of    Appeals       considered      the    same    language      at        issue   here

under an analogous fact pattern.                         There the plaintiff, James

Perry,     was     the    owner         and   operator      of    a     tractor       that   was

contracted        out    to    a   shipping       company,       O.S.T.;       the    tractor’s

I.C.C. license was in O.S.T.’s name.                        Id. at 486.          O.S.T. also

had a similar method of assigning work: Perry contacted O.S.T.

daily to obtain his next assignment.                      Id. at 487.          The timing of

the accident, however, is different: Perry had completed his

dispatch on January 16, dropped his tractor off at a service

station that day, and returned four days later to pick it up.

Id.     On his way home from the service station, he was involved

in an accident.           Id.      The Maryland court found that the business

use exception did not apply, noting that Perry was driving to

his   home,       not    receiving         any    compensation          from    O.S.T.,      not




      3
       The Maryland courts have determined that this contractual
language is not ambiguous. Liberty Mutual Ins. Co., 699 A.2d at
494 (“No ambiguity is present in Empire’s business use exception
clause.”).



                                                    10
operating under a bill of lading, not under dispatch, and not

hauling a load at the time of the accident.         Id. at 487-88.

     Appellant suggests that Liberty Mutual is dispositive.                We

disagree.   While most of the facts parallel the instant case, in

Liberty   Mutual   the   accident   occurred    several   days    after   the

completion of Perry’s last dispatch, while he was driving home.

Here, in contrast, Mahdi was under dispatch -- a fact expressly

noted in Liberty Mutual.     Id.

     There is unfortunately very little additional case law on

the applicability of the business use exception.             However, the

decisions of other circuits provide guidance that Maryland law

considers persuasive in interpreting its own law.                See Stanley

v. Am. Motorists Ins. Co., 73 A.2d 1 (Md. 1950) (“[P]arties who

adopt an insurance policy, which apparently has had nationwide

use . . . adopt with it the uniform judicial construction that

it has received in other states.”).         Both the Seventh and Fifth

Circuits,    in    considering      similarly    worded    business       use

exceptions, have held that the purpose of the exclusions is to

retract coverage for “occasion[s] when the truck is being used

to further the commercial interest of the lessee.”                  Hartford

Ins. Co. v. Occidental Fire & Cas. Co., 809 F.2d 235, 239 (7th

Cir. 1990) (emphasis added); see also Mahaffey v. Gen. Sec. Ins.

Co., 543 F.3d 738 (5th Cir. 2008); Empire Fire & Marine Ins. Co.

v. Brantley Trucking, Inc., 220 F.3d 679 (5th Cir. 2000).              Under

                                       11
this interpretation, the question is whether Mahdi’s conduct at

the time of the accident “furthered the commercial interest” of

J&J.

       In applying the furthering-the-interests test to this case,

we    find   that   Mahdi’s   conduct       fell   under     the   business      use

exception.     The accident occurred while Mahdi was on his way to

pick up a load for J&J; his driving to Jessup was a necessary

step in completing his work.          As the district court noted, Mahdi

was    not   “pursuing    leisurely   engagement       nor    engaged     in    some

frolic [or] detour.”        Rather, he had received instructions from

J&J to go to Jessup to pick up a load and was in the process of

completing that task.         Although Mahdi had decided just before

the accident to stop for a meal before making his way to the

warehouse,    he    was   operating   his    vehicle   at    the   time    of    the

accident solely for the purpose of furthering J&J’s commercial

interests.      We therefore find that the business use exception

applies and bars coverage.



                                      III.

       For the reasons given above, we affirm the district court.



                                                                          AFFIRMED




                                            12
