UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NATIONAL UNION FIRE INSURANCE
COMPANY,OF PITTSBURGH,
PENNSYLVANIA,
Plaintiff-Appellee,

v.

CSX CORPORATION; CSX
INTERMODAL, INCORPORATED, formerly
known as CMX Trucking,
                                                               No. 99-2018
Incorporated; CSX SERVICES,
INCORPORATED; O-O TRUCK SALES,
INCORPORATED; CSX/SEA-LAND
TERMINALS, INCORPORATED; BARONIAL
TRANSPORTATION CORPORATION;
CUSTOMIZED TRANSPORTATION,
INCORPORATED; CUSTOMIZED
TRANSPORTATION, LIMITED,
Defendants-Appellants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Joseph H. Young, Senior District Judge.
(CA-94-2543-Y)

Submitted: January 25, 2000

Decided: April 14, 2000

Before WILKINSON, Chief Judge, and MICHAEL
and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.
COUNSEL

Kenneth C. Bass, III, James K. Archibald, VENABLE, BAETJER,
HOWARD & CIVILETTI, L.L.P., Washington, D.C., for Appellants.
Mark A. Dombroff, Thomas B. Almy, Mark E. McKinnon, DOM-
BROFF & GILMORE, P.C., Washington, D.C., for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

This declaratory judgment case is on appeal to us for the third time.1
National Union Fire Insurance Company of Pittsburgh, Pennsylvania
(National Union), claims that one of its liability policies issued to
CSX Intermodal, Inc. (CSXI) did not cover CSXI for liability in con-
nection with a train wreck. CSXI's connection to the wreck arises out
of its business, which it describes as "intermodal transportation."
CSXI transports goods over the highways in truck trailers and then
transfers the trailers onto flatbed railway cars for shipment by train.
At the train's destination, CSXI unloads the trailers and trucks them
to their delivery points. On May 16, 1994, near Selma, North Caro-
lina, a semitrailer that CSXI had loaded onto a railcar came loose on
a moving freight train and rotated into the path of an oncoming
Amtrak passenger train. The Amtrak train rammed the loosened
trailer and derailed, killing the assistant engineer, injuring eleven pas-
sengers and crew, and causing considerable property damage.

CSXI gave National Union notice of the accident, requesting cov-
erage under the policy. Thereafter, National Union brought this action
_________________________________________________________________
1 Oral argument was scheduled for January 26, 2000, but a joint motion
to continue was granted due to bad weather. Thereafter, we decided to
submit the case for disposition on the briefs and the joint appendix.

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seeking a declaration that it was not obligated to defend or indemnify
CSXI for claims arising from the accident. National Union relied on
a policy exclusion which says that the insurance company "shall not
provide coverage for any claim(s) . . . involving the operation and
maintenance of a railroad." The policy does not define the term "oper-
ation . . . of a railroad." After a two-day bench trial, the district court
entered judgment in favor of National Union, holding that because the
train accident itself involved the operation of a railroad, the claims
arising out of the accident were within the exclusion. In the first
appeal by CSXI, we disagreed with the district court's focus. We con-
cluded that the district court erred in focusing on the type of accident
rather than the alleged wrongdoing of the insured, CSXI. In other
words, the district court needed to decide whether CSXI was involved
in the operation of a railroad when it loaded and fastened the semi-
trailer onto the flatcar for further transport. In the context of this issue,
we said that the term "operation of a railroad" is ambiguous and that
extrinsic evidence must be considered. See National Union Fire Ins.
Co. v. CSX Corp., No. 96-1226, 1997 WL 770608 at *3 (4th Cir. Dec.
11, 1997) (amended op.). On remand the district court, because of
some misunderstanding, did not decide the question we believed cen-
tral to the coverage issue -- whether CSXI's actions involved the
operation of a railroad. Once judgment was entered for National
Union a second time, CSXI filed a second appeal, and we remanded
once again for the district court to carry out our original instructions.
See National Union Fire Ins. Co. v. CSX Corp., No. 97-2657, 1998
WL 393707 (4th Cir. July 2, 1998). On the second remand the district
court heard the parties at oral argument and reconsidered the evidence
submitted during the earlier bench trial. After reconsideration, the
court found "that the loading and unloading of a trailer onto a railroad
car constitute the operation and maintenance of a railroad within the
meaning of the exception in the . . . policy." National Union Fire Ins.
Co. v. CSX Corp., Civ. No. Y-94-2543, mem. op. at 8 (D. Md. June
16, 1999). Judgment was again entered for National Union, and CSXI
filed its third appeal. In this round CSXI raises several issues, most
of them relating to evidentiary matters.

I.

CSXI first argues that the district court erroneously relied on irrele-
vant extrinsic evidence in interpreting the term"operation of a rail-

                      3
road." Specifically, the court considered evidence of whether the
railroad industry and government agencies regulating railroads con-
sider the loading of semitrailers on railcars to be a part of railroad
operations. These groups, the court found, consider this activity to be
"a facet of the railroad industry" or a part of railroad operations. See
National Union Fire Ins. Co. v. CSX Corp. Civ. No. Y-94-2543,
mem. op. at 6 (D. Md. June 16, 1999). This evidence is irrelevant,
CSXI says, because it (CSXI) operates in the intermodal transporta-
tion industry, not the railroad industry. We conclude that the evidence
is relevant. The policy term "operation . . . of a railroad" unmistakably
refers to the railroad industry, and it was proper to consider whether
that industry and its regulatory agencies consider the loading of rail-
cars to be part of railroad operations.2

CSXI also argues that the district court improperly disregarded the
language in an earlier liability policy National Union issued to Santa
Fe Pacific Corporation. The Santa Fe policy excluded coverage "for
any claim(s) . . . involving the operation and maintenance of a rail-
road or the loading or unloading of any railroad car(s)." (emphasis
added). CSXI argues that the Santa Fe exclusion language indicates
that if National Union had wanted to include the loading of railcars
within the exclusion in CSXI's policy, it would have said so specifi-
cally. The district court considered the language difference in the
Santa Fe policy, but it considered it along with all of the other evi-
dence. In the end, the district court said that it did not regard the Santa
Fe policy as dispositive. The weight to be accorded the Santa Fe pol-
icy was for the trier of fact, in this case the district court itself. See
Amplex of Maryland, Inc. v. Outboard Marine Corp. , 380 F.2d 112,
113 (4th Cir. 1967).

II.

CSXI next argues that because there is an ambiguity in the policy,
it must be construed in its favor. Under Maryland law, if policy lan-
guage is ambiguous, extrinsic evidence may be considered. If the
ambiguity remains after extrinsic evidence is considered, the language
in question will ordinarily be construed against the insurer. See Col-
_________________________________________________________________
2 It was also proper for the court to consider how the term "operation
of a railroad" is construed in the insurance industry.

                     4
lier v. MD-Individual Practice Assoc., Inc., 607 A.2d 537, 539 (Md.
1992). Here, the district court weighed the extrinsic evidence and
found that loading a trailer onto a railcar was excluded from coverage
because it involved the operation of a railroad. This finding is not
clearly erroneous, and it resolved any ambiguity in the language of
the exclusion. Accordingly, the exclusion is not construed against
National Union by reason of ambiguity.

III.

At trial National Union called Robert M. Milsop to testify as an
expert in the field of "intermodal transportation and insurance." CSXI
argues that the district court erred in allowing Milsop to testify that,
in his opinion, the exclusion at issue "just absolutely totally excludes
railroad claims, suits or liabilities." CSXI argues that this testimony
was improper because it was an "invasion of the judicial function and
[was] not admissible." CSXI Br. at 21. National Union contends that
this argument is waived because CSXI did not object to the testimony.
Because CSXI objected to similar testimony by Mr. Milsop earlier in
the proceeding, we will assume that the objection was preserved.
However, even if Mr. Milsop's testimony about the legal meaning of
the exclusion was improper, it was harmless. The district court's opin-
ion reveals that the court did not rely on any legal conclusion offered
by Mr. Milsop. Rather, the district court expressly relied on the facts
presented to "find[] that the loading and unloading of a trailer onto a
railroad car constitute the operation and maintenance of a railroad
within the meaning of the exception in the . . . policy."3

IV.

The judgment of the district court is affirmed.

AFFIRMED
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3 We have considered CSXI's other arguments and find them to be
without merit.

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