                               PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 14-1823


DANNY RAY MARKS, JR.,

                 Plaintiff - Appellant,

           and

TIMOTHY B. JOHNSON,

                 Plaintiff,

           v.

SCOTTSDALE INSURANCE COMPANY,

                 Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. David J. Novak, Magistrate
Judge. (3:14-cv-00025-DJN)


Argued:   May 13, 2015                      Decided:   June 29, 2015


Before GREGORY and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by published opinion. Judge Harris wrote the opinion,
in which Judge Gregory and Senior Judge Hamilton joined.


ARGUED:   John Janney Rasmussen, INSURANCE RECOVERY LAW GROUP,
PLC, Richmond, Virginia, for Appellant.    John Becker Mumford,
Jr., HANCOCK, DANIEL, JOHNSON & NAGLE, P.C., Glen Allen,
Virginia, for Appellee.  ON BRIEF:   Eileen R. Geller, HANCOCK,
DANIEL, JOHNSON   &   NAGLE,   P.C.,   Glen   Allen,   Virginia,   for
Appellee.




                                 2
PAMELA HARRIS, Circuit Judge:

      Plaintiff Timothy B. Johnson (“Johnson”) is a member of the

Northumberland Hunt Club (the “Hunt Club” or the “Club”).                       While

hunting on Club-leased land, he unintentionally shot and injured

Plaintiff-Appellant        Danny      Ray    Marks,     Jr.   (“Marks”),      who    was

driving nearby on a public road.                  Marks sued both Johnson and

the Hunt Club in Virginia court, alleging that each had been

negligent     in     connection         with      his      accidental       shooting.

Defendant-Appellee Scottsdale Insurance Company (“Scottsdale”),

which insures the Club under a general liability policy, denied

coverage to Johnson, contending that the policy does not cover

Club members for their personal recreational activities but only

for liability arising from some official action of the Hunt Club

or actions undertaken on behalf of the Club.                          The magistrate

judge agreed with Scottsdale, and awarded it summary judgment.

For the reasons that follow, we affirm.



                                            I.

                                            A.

      Scottsdale has issued a commercial general liability policy

to   the   Hunt    Club   (“the    Policy”),       under      which   it    agrees    to

indemnify    for    “those     sums    that      the    insured    becomes    legally

obligated    to    pay    as   damages      because      of   ‘bodily      injury’    or

‘property    damage’      to   which    this      insurance       applies,”    and    to

                                            3
defend against any suit seeking such damages.                            J.A. 143.      The

Hunt Club is the sole named insured on the Policy.                                But the

Policy     also    includes          an    endorsement           (“the    Endorsement”)

modifying its coverage:

        ADDITIONAL INSURED—CLUB MEMBERS . . .

        WHO IS AN INSURED (Section II) is amended to include
        as an insured any of your members, but only with
        respect to their liability for your activities or
        activities they perform on your behalf.

J.A. 160.        The Policy defines “you” and “your” as “the Named

Insured shown in the Declarations,” J.A. 28, which is the Hunt

Club,    J.A.    136,    so   that    the    Endorsement          effectively     extends

Policy coverage to Club members “only with respect to [member]

liability for [the Club’s] activities or activities [members]

perform on [the Club’s] behalf.”                   The question in this case is

whether    Johnson,      a    Club    member,          is   an   “insured”   under      the

Endorsement for purposes of Marks’s suit.

                                            B.

       On January 3, 2013, Johnson was participating in a deer

hunt with other members of the Hunt Club and their guests, on

land    leased    by    the   Hunt    Club       and    adjacent    to    Route   642    in

Richmond County, Virginia.                Johnson shot at a deer, and pellets

from the shot traveled toward the highway and struck and injured

Marks.




                                             4
      On December 16, 2013, Marks filed suit in Virginia court

(the “Marks Suit”), seeking compensatory and punitive damages.

As   against     Johnson,      Marks    alleged      both       negligence    and       gross

negligence.        According       to    the      complaint,       Johnson,       who    had

extensive firearm training and was familiar with the location,

took a position approximately 75 yards from the highway even

though he knew or should have known that his gun could shoot

further than 75 yards.             When Johnson shot in the direction of

the highway, Marks alleged, one of the pellets from Johnson’s

gun struck Marks in the head.                     Marks also brought a separate

negligence claim against the Hunt Club, alleging that the Club

leased     the   land    where    the    shooting       occurred,     knew     that       its

officers     and   members       regularly        hunted    there,    but     failed      to

promulgate rules or regulations to protect the nearby public.

The complaint did not seek to hold Johnson or any other Club

member     vicariously        liable    for    the   alleged       negligence       of   the

Club.

      On   January      13,    2014,    Marks      filed    a    second    complaint       in

Virginia     court,      this     time        against      Scottsdale,       seeking        a

declaration under Virginia law that Scottsdale has a duty under

the Policy to defend and indemnify Johnson in the Marks Suit.

In that complaint, Marks alleged that the Endorsement, which

insures Club members “with respect to their liability for [the

Club’s]     activities,”         covered       Johnson’s        shooting     of     Marks,

                                              5
because Johnson is a Club member and hunting is one of “[the

Club’s] activities.”

       Scottsdale        removed       this    case          to    federal     court      based    on

diversity       jurisdiction,          and     filed          a    counterclaim         seeking    a

declaration that Scottsdale owes no duty to defend or indemnify

Johnson     in    the        Marks     Suit. 1           Scottsdale          argued      that     the

Endorsement does not cover Hunt Club members for their personal

activities       in     connection          with       the     Club,      such    as     Johnson’s

hunting    on    the     day    of     the    shooting.                Instead,    according       to

Scottsdale,       it     covers      members           only       to   the   extent      they     are

vicariously liable for the Club’s own activities or take action

on    behalf     of    the     Club.         Johnson          joined     the     district       court

litigation,       and    though        he    subsequently              filed     for    bankruptcy

protection, the bankruptcy court allowed this action to proceed.

       The parties consented to have a magistrate judge adjudicate

the case and filed cross-motions for summary judgment.                                    Adopting

Scottsdale’s reading of the Policy, the magistrate judge held

that Scottsdale has no duty to defend or indemnify Johnson in

the   Marks      Suit,    and     accordingly            granted        summary        judgment    to




       1
       Scottsdale’s counterclaim was limited to Marks’s claims
against Johnson; it did not contest its obligation under the
Policy to defend the Hunt Club itself against Marks’s claims.
At oral argument, Scottsdale confirmed that it is defending the
Hunt Club in the Marks Suit.



                                                   6
Scottsdale while denying the summary judgment motions of Marks

and Johnson.        This timely appeal followed.



                                          II.

       We review a grant of summary judgment de novo.                       CACI Int’l,

Inc. v. St. Paul Fire and Marine Ins. Co., 566 F.3d 150, 155

(4th Cir. 2009).        Because jurisdiction is based on diversity, we

apply    the    choice-of-law       rules         of   the     forum   state    -     here,

Virginia.      Id. at 154.         In insurance cases, Virginia law looks

to the law of the state where the insurance contract is written

and delivered.         Id.      The parties agree that the Policy was

written and delivered in Virginia and therefore that Virginia

law governs.

                                          A.

       In    construing      the    Policy         provision     at    issue,    we    are

directed       by    Virginia       law       to       apply     ordinary       contract-

interpretation principles, deducing the parties’ intent from the

words of the Policy itself.               See Va. Farm Bureau Mut. Ins. Co.

v. Williams, 677 S.E.2d 299, 302 (Va. 2009).                      We are to give the

text its “ordinary and customary meaning,” Salzi v. Va. Farm

Bureau Mut. Ins. Co., 556 S.E.2d 758, 760 (Va. 2002) (quoting

Graphic Arts Mut. Ins. v. C.W. Warthen Co., Inc., 397 S.E.2d

876, 877 (Va. 1990)), and may not insert by construction a term

that    is   not    expressly      in   the       contract,     Lansdowne      Dev.   Co.,

                                              7
L.L.C. v. Xerox Realty Corp., 514 S.E.2d 157, 161 (Va. 1999).

Virginia          does      apply        one    rule      of    construction              specific      to

insurance contracts and relevant here:                                    If policy language is

ambiguous,           then    it     is    to    be     construed           against      the      insurer.

Williams, 677 S.E.2d at 302.                         But – and equally relevant here –

a term will not be deemed ambiguous unless it is “capable of

more       than      one    reasonable          meaning”            even    after       it    has    been

examined in context.                 Res. Bankshares Corp. v. St. Paul Mercury

Ins. Co., 407 F.3d 631, 636 (4th Cir. 2005).

       The Endorsement in question, again, insures “any of [the

Club’s] members, but only with respect to [member] liability for

[the Club’s] activities or activities [members] perform on [the

Club’s]         behalf.”           Marks       concedes        on    appeal       that       the    second

clause      –     covering         member      activities           performed        on      the    Club’s

behalf – does not reach Johnson’s hunting expedition, but argues

that the first clause – member liability for Club activities –

unambiguously              does,     because         hunting         is     one    of      the     Club’s

activities.           Alternatively, Marks argues that the first clause

is    at    least        ambiguous        on    the       point,      and    therefore           must   be

construed in his favor.

       We disagree.               Instead, we agree with the magistrate judge

and    the      other       federal       courts       that     have       considered         identical

policy       provisions:             The       clause      covering         Club     members        “with

respect         to    [member]       liability            for       [the    Club’s]        activities”

                                                      8
unambiguously         restricts      coverage      to    situations       involving    a

member’s alleged vicarious liability for the activities of the

Club as an entity.           J.A. 384–87; see Everett Cash Mut. Ins. Co.

v. Ins. Corp. of Hanover, Civ. A. No. 1:07-CV-0641, 2008 WL

4453113,    at      *5–6     (M.D.      Penn.    Sept.    30,     2008)     (identical

endorsement      to     hunt    club     insurance       policy    does     not    cover

member’s accidental shooting during recreational hunt); Lenox v.

Scottsdale Ins. Co., No. Civ. 04-2282(SRC), 2005 WL 1076065, at

*3–5 (D.N.J. May 5, 2005) (identical endorsement to beach club

insurance policy does not cover member’s accidental injury of

guest on club property). 2

     First,      even      standing     on   its   own,    the    phrase     “[member]

liability for [the Club’s] activities” is quite clear.                            “Member

liability     for      the     Club’s     activities”      is     the     language    of

vicarious liability, and it is most plainly read to apply “when

a member is held vicariously liable for some activity undertaken

     2 In a third case, Mt. Hawley Ins. Co. v. Nat’l Cas. Co.,
Civ. A. No. 13–cv–01652–CMA–KLM, 2015 WL 428768, at *4–5 (D.
Colo. Jan. 30, 2015), this one involving a national go-karting
association,   the   court   addressed  a   policy  endorsement
substantively identical to the second clause here, covering
members when they are “acting on [the club’s] behalf.”
Following Lenox and Everett Cash, as well as the magistrate
judge in this case, the court held that the term “on behalf of”
does not encompass the voluntary, recreational activities of
members, but instead extends only to actions undertaken by
members at the request or for the benefit of the club. See id.
Again, on appeal, Marks concedes that the Endorsement’s second
clause is not applicable in this case.



                                             9
by the Club as a corporate entity.”                      Lenox, 2005 WL 1076065, at

*4;       see    also     Everett    Cash,      2008    WL    4453113,   at     *5    (“club

activities” refers to “those actions taken by the Club in its

capacity as a non-profit corporate entity”); J.A. 387 (same).

In    his       brief,    Marks     argues   that      the   Policy    covers    his    suit

against Johnson because the shooting occurred “during” a Hunt

Club activity, Appellant’s Br. at 12, or “arose from” a Hunt

Club activity, id. at 17.                 But that is not what the Policy says,

and we cannot add words that are not there.                          See Lansdowne, 514

S.E.2d      at     161.         Members   are    covered      with    respect    to    their

liability         for    the     Club’s   own    corporate      activities,      not    with

respect to anything they may do during or in connection with

Club activities.

          That reading is confirmed when we look at the Endorsement

as    a    whole.         The    limiting    terms     with    which   the    Endorsement

begins – the Policy is modified to cover Club members, “but only

with respect to [member] liability for [the Club’s] activities

or activities [members] perform on [the Club’s] behalf” – “make

clear that the Policy is not intended to cover every member

pursuit at the Club.”               Lenox, 2005 WL 1076065, at *4.               And that

point is reinforced by the joint operation of the Endorsement’s

two clauses.            The first, as we have explained, is most naturally

read to invoke actions by the Club as an entity – entering into

contracts, suing and being sued, buying and selling property –

                                                10
for    which   a    member          might    be    held       vicariously    liable.         The

individual activities of Club members, by contrast, are covered

by the second clause – “activities [members] perform on [the

Club’s]   behalf”         –    but    only     when      they    are    undertaken      at   the

request or for the benefit of the Club, a condition that Marks

concedes is not satisfied here.                         On Marks’s reading, however,

that   restriction            is    entirely      superfluous,         because   all    member

activities in connection with the Club are covered already, by

the first clause.                  We decline to adopt a construction of the

Endorsement        that       renders   so     much      of    it   redundant.         Cf.   id.

(party taking same position as Marks “essentially asks the Court

to interpret this provision in such a way that the limiting

language is irrelevant”).

       Marks’s      contrary          argument         rests     almost     exclusively       on

dictionary definitions of “activity,” under which, he contends,

“hunting”      comfortably           fits.        We    do    not   doubt   that   “hunting”

constitutes        an   “activity”          within      the     freestanding     meaning      of

that word, and even an “activity” to which the Hunt Club is

committed.       And if the Policy broadly extended coverage to Club

members for, say, “all member activities on Club property,” or

“all member activities within the scope of the Club’s purpose,”

we would have a different case.                        See id.      The problem for Marks

is not the word “activity,” but the words right around it in the

Policy actually before us, extending coverage to Club members

                                                  11
“but only with respect to [member] liability for [the Club’s]

activities.”        That    is   the   language,      taken    as    a   whole,   that

precludes      Marks’s     interpretation,      unambiguously        covering     Club

members only with respect to their vicarious liability for the

activities of the Club as an entity.                     See Gates, Hudson, &

Assocs. v. Fed. Ins. Co., 141 F.3d 500, 502 (4th Cir. 1997)

(contract term is deemed unambiguous if its meaning is clear in

context).

                                         B.

     Having determined the Policy’s scope of coverage, the rest

of our task is straightforward.               In deciding whether Scottsdale

has a duty to defend Johnson in the Marks Suit, under Virginia’s

“eight   corners      rule”      we    look    only    to     Marks’s      underlying

complaint, and determine whether its allegations against Johnson

come within the scope of the Policy’s coverage.                          AES Corp. v.

Steadfast Ins. Co., 725 S.E.2d 532, 535 (Va. 2012); see also

CACI, 566 F.3d at 155–56; Fuisz v. Selective Ins. Co. of Am., 61

F.3d 238, 242 (4th Cir. 1995).                 If the complaint alleges any

facts that, if proved, would render Scottsdale liable under the

Policy   for    a   judgment     against      Johnson,      then    Scottsdale    must

defend Johnson in the Marks Suit.                See CACI, 566 F.3d at 155.

But if it is clear based on the complaint that Scottsdale would

not be liable under the Policy for any judgment based on the



                                         12
allegations against Johnson, then Scottsdale has no such duty to

defend.         See id.

       The complaint in the Marks Suit does not allege any facts

that, if proved, would render Scottsdale liable as to Johnson

under the Policy as we have construed it.                           Marks alleges only

that Johnson, a member of the Club, was on land leased by the

Club   and       regularly       used    by   Club   members       when    he    negligently

fired his gun.             As Marks concedes, that is not enough to bring

his    claim      under     the     Endorsement’s     second       clause,       for      member

activities “on [the Club’s] behalf.”                         Nor does the complaint

seek       to    hold     Johnson       vicariously       liable    “for    [the       Club’s]

activities” so as to trigger coverage under the first clause.

The complaint does raise a separate claim against the Club as an

entity, charging it with negligence in failing to protect the

safety of the nearby public – but what it does not do is seek to

hold Johnson vicariously liable “for [the Club’s] activities” in

this regard.            Instead, its allegations against Johnson rest only

on “the recreational pursuits indulged in by Club members,” see

Everett         Cash,     2008    WL    4453113,     at    *5,     which,       as   we    have

explained, fall outside the scope of the Endorsement. 3


       3
       The facts alleged in the complaint give us no occasion to
consider whether coverage under the first clause of the
Endorsement might extend to situations in which a Club member
has participated in a group activity organized or sponsored by
the Club itself – say, an annual picnic, or official Club


                                               13
       Because     it     is   clear    from      the   Marks   Suit    complaint       that

Scottsdale would not be liable for any judgment against Johnson,

Scottsdale        has   no     duty   to    defend      Johnson.     It    follows      that

Scottsdale also has no duty to indemnify Johnson in the Marks

Suit.       See Penn-America Ins. Co. v. Coffey, 368 F.3d 409, 413

(4th       Cir.   2004)      (duty     to   defend      is   broader      than   duty    to

indemnify);         AES        Corp.,       725     S.E.2d      at     535–36     (same).

Accordingly, we hold that the magistrate judge properly granted

summary judgment to Scottsdale and denied summary judgment to

Marks and Johnson. 4



                                             III.

        For the foregoing reasons, we affirm the judgment of the

magistrate judge.
                                                                                 AFFIRMED


breakfast.     That question was reserved expressly by the
magistrate judge, as well as by the court in Lenox, 2005 WL
1076065, at *5; see also Everett Cash, 2008 WL 4453113, at *5
(recreational hunting “outside the context of a club event” is
not covered club activity), and we need not decide it today.
       4
       In analyzing Scottsdale’s duty to defend, the magistrate
judge referred not only to the allegations of the Marks Suit
complaint but also to undisputed facts adduced during discovery.
To the extent the magistrate judge relied on materials outside
the complaint, it appears to have erred under Virginia law. But
the result is the same when we confine our analysis to the
underlying complaint, and so the magistrate judge’s conclusion
is in any event correct.    See United States v. Smith, 395 F.3d
516, 519 (4th Cir. 2005) (appellate court may affirm on any
ground apparent in the record).



                                              14
