          United States Court of Appeals
                     For the First Circuit

No. 13-2474

                         FRANK RUKSZNIS,

                      Plaintiff, Appellant,

                               v.

                   ARGONAUT INSURANCE COMPANY,

                      Defendant, Appellee.



          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

          [Hon. D. Brock Hornby, U.S. District Judge]


                             Before

                       Lynch, Chief Judge,
                      Lipez, Circuit Judge,
                    and Lisi,* District Judge.



     Arthur J. Grief, with whom Julie D. Farr and Gilbert & Grief,
P.A. were on brief, for appellant.
     Richard R. Eurich, with whom Michael H. Hayden and Morrison
Mahoney LLP were on brief, for appellee.


                        December 18, 2014




     *
      Of the District of Rhode Island, sitting by designation.
          LIPEZ, Circuit Judge.    Appellant Frank Ruksznis, former

plumbing inspector for the Town of Sangerville ("the Town"),

obtained a judgment against Lance Burgess, a Town Selectman, for

slander. Ruksznis sought to collect the judgment through this reach

and apply action against the Town's insurer, Argonaut Insurance

Company ("Argonaut"). The district court granted summary judgment

for Argonaut, finding that the exclusions in the insurance contract

for "employment-related" practices barred Ruksznis's recovery.

Because we agree that the term "employment" unambiguously covers

Ruksznis's relationship with the Town, and the policy therefore

excludes coverage, we affirm.

                                  I.

          We draw the facts from the complaint in the underlying

slander and civil rights action, as well as from the summary

judgment record in the case before us.

          Ruksznis served as the appointed1 plumbing inspector for

the Town from approximately 1993 until 2010. Each year from 1993

until 2010, he was reappointed for an additional one-year post. As

plumbing inspector, Ruksznis set his own hours, provided his own

tools, paid for all of his own expenses, and paid for any schooling




     1
        See Me. Rev. Stat. tit. 30-A, § 4221(1) (2011) (providing
for the appointment of plumbing inspectors by municipal officers,
compensation as determined by municipal officers, payment for
services by the respective municipalities, and removal from office
for cause).

                                  -2-
to   update    his   license.2      Ruksznis       describes     himself    as   an

independent contractor. Although Argonaut describes Ruksznis as an

employee,     they   argue   that      even   if    he   were    an   independent

contractor, he was nonetheless in an employment relationship with

the Town within the meaning of the insurance policies.

            The   Town   held    two   insurance      policies    from     Argonaut

relevant to this case: a Commercial General Liability ("CGL")

policy and a Public Officials Liability ("POL") policy. Each policy

covered personal injury claims generally, but each also contained

an exclusion for "employment-related" activity. The CGL policy's

"employment-related practices exclusion" states that insurance for

personal and advertising injury does not apply to claims "arising

out of any . . . Employment-related practices, policies, acts or

omissions, such as coercion, demotion, evaluation, reassignment,

discipline, defamation, harassment, humiliation, discrimination or

malicious prosecution directed at that person." The POL policy's

exclusion precludes coverage for "[a]ny claim arising out of

employment or application for employment with any insured, or any

other employment related policies or practices." The policies do

not define either "employment" or "employment-related."

            At a public meeting of the Sangerville Board of Selectmen

on April 13, 2010, Selectman Burgess stated that Ruksznis had made


     2
      In his affidavit Ruksznis asserts that he also served as the
plumbing inspector for Guilford, Abbot, Atkinson, Blanchard, Dover-
Foxcroft, Monson, Dexter, and Willimantic.

                                        -3-
"less than quality decisions" while serving as plumbing inspector,

and that "there has [sic] been a couple of issues concerning both

his job performance and actions outside of work. I can't comment on

what happened last year because I wasn't on the Board and I believe

the Selectmen discussed it in the executive session."

             At the next Selectmen's meeting on April 22, Burgess took

unspecified actions that caused Ruksznis to be removed from his

position as plumbing inspector.                Although informed by the Maine

Municipal Association that Ruksznis's removal had not complied with

procedures    required     by    state   law,     Burgess    blocked   Ruksznis's

reinstatement.

             Ruksznis subsequently filed an action in the District of

Maine asserting a claim of common law slander and violations of his

constitutional right to due process under 42 U.S.C. § 1983.

Pursuant to Federal Rule of Civil Procedure 68, Burgess filed an

Offer of Judgment in the amount of $100,000, which Ruksznis

accepted. The Offer of Judgment did not allocate the payment

between claims nor did it specify that it was for both the slander

and civil rights claims. After judgment was entered, Ruksznis

initiated this reach and apply action against Argonaut seeking to

recover for the slander count under the CGL policy and for the due

process claims under the POL policy.

             Argonaut    moved     for     summary      judgment,   arguing   that

exclusions     in   both        policies       barred     Ruksznis's    recovery.


                                         -4-
Specifically, it invoked an exclusion for "Governmental Errors and

Omissions" in the CGL policy and exclusions for "employment-

related" practices in both policies. In a cross-motion for summary

judgment, Ruksznis argued that both exclusions were inapplicable.

He claimed that the employment-related exclusion did not apply

because he was an independent contractor rather than a Town

"employee." He further asserted that, at a minimum, the policy

language was ambiguous and, hence, the provisions must be construed

in his favor. The district court denied Ruksznis's motion and

granted Argonaut's motion on the ground that Ruksznis's claim

"plainly arose from an employment-related dispute" and that the

exclusion unambiguously covered Ruksznis's relationship with the

Town.3

          On appeal, Ruksznis argues that the district court erred

in finding the pertinent policy language unambiguous as applied to

his circumstances. He reiterates his contention that his status as

an independent contractor places him outside the scope of the

policies' exclusions for "employment-related" activity.4




     3
        The district    court   adopted   the   magistrate   judge's
recommended decision.
     4
       He also argues that the "Government Errors and Omissions"
exclusion does not bar his slander claim as the slander at issue
pertained to Burgess's personal opinion of Ruksznis's job
performance. We do not address the applicability of the "Government
Errors and Omissions" exclusion because our holding on the
"employment-related" exclusion resolves the case.

                                -5-
                                       II.

            Our   review    of   a   district   court's    grant   of   summary

judgment is de novo.       See Johnson v. Univ. of P.R., 714 F.3d 48, 52

(1st Cir. 2013).    In conducting our "fresh look" at the record, we

view the evidence in the light most favorable to the non-moving

party and draw all reasonable inferences in its favor.              Gerald v.

Univ. of P.R., 707 F.3d 7, 16 (1st Cir. 2013).            Summary judgment is

appropriate only if there is no genuine dispute as to any material

fact and the moving party is entitled to judgment as a matter of

law.   Fed. R. Civ. P. 56(a); Gerald, 707 F.3d at 16.

            The sole issue before us is whether the judgment obtained

by Ruksznis against Burgess is excluded from the indemnity coverage

of either of the two policies issued by Argonaut. The answer turns

on whether the exclusions in the policies for "employment" or

"employment-related" practices are ambiguous in their applicability

to the acts taken by the Town against Ruksznis, who arguably has

the status of an independent contractor rather than an employee.

A.     Legal Principles

            We apply Maine law in this diversity action. Elliott v.

S.D. Warren Co., 134 F.3d 1, 5 (1st Cir. 1998). Under Maine law,

whether a policy term is ambiguous is a question of law. Royal Ins.

Co. v. Pinette, 756 A.2d 520, 523 (Me. 2000). "As long as language

in an insurance policy, read in context, has a plain and generally

accepted meaning, that language is free from ambiguity." Med. Mut.


                                       -6-
Ins. Co. of Me. v. Indian Harbor Ins. Co., 583 F.3d 57, 62 (1st

Cir. 2009). We will find ambiguity if an ordinary person would not

understand that the policy affords coverage for the particular

claim at issue or if the language is susceptible to different

reasonable interpretations.    Travelers Indem. Co. v. Bryant, 38

A.3d 1267, 1269 (Me. 2012). Under Maine law, language of an

insurance contract is construed according to its plain meaning. Id.

at 1270. When a word in an insurance policy is undefined, Maine

courts look to its ordinary meaning as appearing in dictionaries.

Middlesex Mut. Assurance Co. v. Fish, 738 F. Supp. 2d 124, 137-38

(D. Me. 2010). Ambiguity, if found, is resolved in favor of the

insured. Foremost Ins. Co. v. Levesque, 868 A.2d 244, 246 (Me.

2005).

B.   The Policies

          Ruksznis argues that the slander claim is payable under

the CGL as a "personal and advertising injury" and that the civil

rights claims fall under the POL policy's "wrongful act" coverage

provision. Argonaut concedes for purposes of summary judgment that

Burgess was an insured under both policies and that Ruksznis's

claims fall within the coverages on which he relies.

          Each   policy,   however,   includes   an   exclusion   for

"employment-related" practices. The "Employment-Related Practices

Exclusion" of the CGL policy reads as follows:

     This insurance does not apply to:


                                -7-
             "Personal and advertising injury" to:
             (1) A person arising out of any: . . .
             (c) Employment-related practices, policies, acts or
             omissions, such as coercion, demotion, evaluation,
             reassignment, discipline, defamation, harassment,
             humiliation, discrimination . . .

The POL provision, Exclusion 8, similarly states that the insurance

provided by the policy does not apply to "[a]ny 'claim' arising out

of employment or application for employment with any insured, or

any   other    employment   related   policies   or     practices."5   This

exclusion removes from coverage any claim which either arises out

of employment, or arises out of "any other employment related

polices or practices."

             Ruksznis   maintains   that   references    to   "employment"

connote an employee-employer relationship, and that his claim as an

independent contractor is therefore outside the scope of the

exclusions.     Because his focus is on the word "employment" and the



      5
          The text of the exclusion is as follows:

      This insurance does not apply to:
      1. Any "claim", or any portion of any "claim", alleging
      "bodily injury", "property damage", "personal injury",
      "advertising injury" or "employee benefits injury".
      . . . .
      8. Any "claim" arising out of employment or application
      for employment with any insured, or any other
      employment related policies or practices.
      K. "Personal injury" means:
      . . .
      3. Defamation in any form...

      Ruksznis concedes that because the policy's definition of
      personal injury includes "defamation in any form," the POL's
      exclusion denies coverage for his slander claim.

                                    -8-
term "employment-related," both of which appear in each exclusion,

we must similarly focus our analysis.

     1. The Plain Language and Ordinary Meaning of Employment

          In   the   absence    of   definitions   of   "employment"   and

"employment-related"    in     the   insurance   contract,   we   consider

dictionary definitions. Fed. Ins. Co. v. Raytheon Co., 426 F.3d

491, 498-99 (1st Cir. 2005). "Employment" is defined as "the state

of being employed; employ; service." The Random House Dictionary of

the English Language 638 (2d ed. 1987). The definition of "employ"

is "to hire or engage the services . . . provide employment for;

have or keep in one's service." Id. "Employment" encompasses a

number of arrangements between two parties in which one party

performs services or duties for another. See, e.g., American

Heritage Dictionary 586 (4th ed. 2000) (defining "employ" to mean

"to engage the services of; put to work," and "employment" to mean

"the act of employing," "the state of being employed," and "[t]he

work in which one is engaged; occupation"); Webster’s II New

Riverside University Dictionary 429 (1994) (same); The American

Heritage Dictionary 450 (2d col. ed. 1985) (same).

          Despite the breadth of this definition, Ruksznis argues

that "employment" encompasses only work performed for the Town by

one who meets the formal requirements of an employee rather than an

independent contractor. To buttress this argument, Ruksznis cites




                                     -9-
three Maine Supreme Judicial Court cases, two6 of which deal with

the    definition     of   employment      in   the   context      of   collecting

unemployment       benefits   and    the      third   of   which      defines   the

distinction between an independent contractor and an employee for

a     workers'    compensation      claim.7     Ruksznis    insists      that   his

employment relationship with the Town meets the standard applicable

to an independent contractor, as articulated in these cases.

              We will assume for purposes of our analysis that he is an

independent contractor. Nonetheless, the distinction between an

employee and an independent contractor, critical in the context of

collecting unemployment benefits and workers' compensation, is

immaterial in the instant case. As the district court held,

"although the ordinary person unschooled in the law or in insurance

appreciates that there is a distinction between being an employee

and an independent contractor, the ordinary person also appreciates

that either status is a form of employment." Ruksznis v. Argonaut

Ins. Co., 2013 WL 6063379, at *7 (D. Me. Nov. 18, 2013). The broad

dictionary       definition   of   employment     ("the    act   of     employing";

"engag[ing]" the services" of someone) supports this understanding.



       6
       Vector Mktg. Corp. v. Me. Unemployment Ins. Comm'n, 610 A.2d
272, 273 (Me. 1992); Ham v. Me. Emp't Sec. Comm'n, 216 A.2d 866,
868 (Me. 1966) (defining those outside the scope of "employment" as
individuals free from control, who perform services outside the
usual course of business for which the service is performed, and
who are customarily engaged in an independently established trade).
       7
           Pennell v. City of Portland, 125 A. 143 (Me. 1924).

                                       -10-
American Heritage Dictionary 586 (4th ed. 2000);                       The Random House

Dictionary of the English Language 638 (2d ed. 1987).

                  Ruksznis    tries     to     confound      the     plain    meaning    of

employment or employment-related with his resort to the statutory

framework         relating    to   the       responsibilities,        appointment,      and

termination of Town plumbing inspectors. Ruksznis contends that

Maine law treats municipal officials differently than municipal

employees. In support of his contention, he cites Me. Rev. Stat.

tit.       30-A    M.R.S.A.    §   2601(1)      which     provides     that    "municipal

officers      shall     appoint       all    municipal       officials   and      employees

required by general law." (emphasis added). The term "municipal

official" is defined as any "elected or appointed member of a

municipal         government."     Me.      Rev.     Stat.    tit.   30-A,    §   2001(11)

(emphasis added). Because plumbing inspectors are "appointed for a

term of one year or more," Ruksznis concludes that plumbing

inspectors are municipal officials and not employees. Me. Rev.

Stat. tit. 30-A, § 4221(1) (2011).8 In Ruksznis's view, because

plumbing inspectors are not employees, they therefore are not

employed by or in an employment relationship with the Town within




       8
       Maine law provides that municipal officers of a municipality
shall appoint all municipal officials required by general law and
may remove those officials for cause, after notice and hearing. Me.
Rev. Stat. tit. 30-A, § 2601(1) (2011). Municipal officers of a
town are statutorily empowered to "appoint one or more inspectors
of plumbing," who "are appointed for a term of one year or more."
Me. Rev. Stat. tit. 30-A, § 4221(1) (2011).

                                              -11-
the meaning of the policies, or, at least, there is ambiguity on

that point.

           This    argument      suffers    from   the   same   infirmity   as

Ruksznis's independent contractor argument. We will again assume

Ruksznis is correct that he is a municipal official. Nonetheless,

the   ordinary    meaning   of    "employment"     encompasses    Ruksznis's

relationship with the Town. As previously stated, the definition of

"employ" is "to hire or engage the services" of someone. The Random

House Dictionary of the English Language 638 (2d ed. 1987). During

each of his successive one-year appointments as the Town's plumbing

inspector, the Town engaged Ruksznis's services. From 1993 until

2010, he was employed by the Town and performed his duties as a

municipal official for the Town as part of that employment.

      2. Context

           Ruksznis further argues that because not all of the

practices listed in the CGL exclusion and the POL exclusion apply

to independent contractors, the exclusions are inapplicable to him,

or at least they are ambiguous in their application. The CGL policy

provides that coverage does not apply to "personal and advertising

injury" arising out of the following:

      Employment-related   practices,   policies,   acts   or
      omissions, such as coercion, demotion, evaluation,
      reassignment,   discipline,   defamation,   harassment,
      humiliation, discrimination or malicious prosecution
      directed at that person.




                                     -12-
Claiming that independent contractors are not demoted, reassigned,

or disciplined, he argues that the "exclusion cannot, as a matter

of law, reach an independent contracting relationship."

                Ruksznis cites no statutory or case law to support this

all   or    nothing    logic.   The   language       of   the   exclusion   states

"employment-related practices. . . such as." This language provides

examples of possible actions by the Town that might have an impact

on a person performing services for the Town. That this person

might      be   defamed   by   the   Town,    but    could   never   be   demoted,

reassigned or disciplined, does not affect the applicability of the

employment-related exclusion.

                Ruksznis similarly argues that the POL policy exclusion

relates to "claims arising out of employment or application for

employment." Since an independent contractor does not apply for

employment, a dubious proposition of appellant's that we will

accept only for the sake of argument, the exclusion does not apply

to independent contractors. This all or nothing logic suffers from

the same infirmity as the version above. That an independent

contractor might be defamed by the Town only while providing

services to the Town does not make the employment exclusion

inapplicable.       The   language    of     the    exclusion   includes    claims

"arising out of employment." Burgess's slander was a claim arising

out of Ruksznis's performance of his plumbing inspector office. It




                                       -13-
was therefore unambiguously an employment-related claim subject to

the employment-related practices exclusion.9

                                   III.

          Ruksznis's    judgment    against     Burgess     arose   from   an

employment-related     dispute.    The    CGL   and   POL   policies   both

unambiguously exclude coverage for claims arising from employment-

related practices. Hence, we affirm the district court's order

granting Argonaut's motion for summary judgment.

          So ordered.




     9
       Ruksznis cites four cases to support the proposition that
the "employment-related" practices exclusion is ambiguous, none of
which apply Maine law and all of which are distinguishable. In
neither North American Building Maintenance, Inc. v. Fireman's Fund
Insurance Co. 40 Cal. Rptr. 3d 468, 470 (Cal Ct. App. 2006), nor
Career Sys. Dev. Corp. v. Am. Home Assur. Co., No. C. 10-2679 BZ,
2011 WL 4344578 (N.D. Cal. Sept. 14, 2011), did the court consider
whether the work of an independent contractor was a type of
"employment" and, consequently, neither case is relevant. Nor is
Ruksznis's reliance on Nat'l Union Fire Ins. Co v. Starplex Corp.,
188 P.3d 332 (Or. Ct. App. 2008) helpful as the employment-related
practices exclusion did not apply. Finally, the court's holding in
Clinical Research Inst. of S. Oregon, P.C. v. Kemper Ins.
Companies, 84 P.3d 147, 150 (Or. Ct. App. 2004) was limited to
whether the exclusion applied to former employees and is therefore
equally inapplicable.

                                   -14-
