                             UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                             No. 09-1697


RED ROOF INNS, INCORPORATED,

               Plaintiff - Appellant,

          v.

SCOTTSDALE INSURANCE COMPANY,

               Defendant - Appellee.



                             No. 09-1760


RICKI KEYE; WARREN KEYE,

               Plaintiffs,

          v.

RED   ROOF   INNS,   INCORPORATED; ACCOR NORTH  AMERICA,
INCORPORATED; RED ROOF FRANCHISING, LLC; RRI ACQUISITION
COMPANY, INCORPORATED,

               Defendants – Appellants,

          v.

S & W PROTECTIVE SERVICES, INCORPORATED,

               Third Party Defendant – Appellee.



Appeals from the United States District Court for the District
of Maryland, at Greenbelt.   William Connelly, Magistrate Judge.
(8:08-cv-01841-WGC; 8:07-cv-02926-WGC)
Argued:   January 28, 2011               Decided:   March 22, 2011


Before DUNCAN and WYNN, Circuit Judges, and Irene C. BERGER,
United States District Judge for the Southern District of West
Virginia, sitting by designation.


Reversed by unpublished opinion.        Judge Duncan    wrote   the
opinion, in which Judge Wynn and Judge Berger joined.


ARGUED: Angus R. Everton, MORGAN CARLO DOWNS & EVERTON, PA, Hunt
Valley, Maryland; Stephen Salvatore McCloskey, SEMMES, BOWEN &
SEMMES, Baltimore, Maryland, for Appellants.         Kevin Bock
Karpinski, KARPINSKI, COLARESI & KARP, PA, Baltimore, Maryland,
for Appellees. ON BRIEF: Eric M. Leppo, SEMMES, BOWEN & SEMMES,
Baltimore,  Maryland,   for  Appellants.     Michael   B.  Rynd,
KARPINSKI, COLARESI & KARP, PA, Baltimore, Maryland, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
DUNCAN, Circuit Judge:

     This    consolidated   appeal      arises      out   of     a    dispute     over

whether     Plaintiff-Appellant    Red       Roof   Inns,      Inc.     (“Red     Roof

Inns”) 1 is entitled to indemnity and insurance coverage for a

personal injury claim filed against it.               Red Roof Inns appeals

the grant of summary judgment in favor of Defendant-Appellees

S&W Protective Services, Inc. (“S&W”) and Scottsdale Insurance

Company     (“Scottsdale”). 2     For       the   reasons      that     follow,     we

reverse.



                                     I.

     S&W    provides   security   guard       services      to    Red    Roof     Inns

pursuant to a Security Services Agreement (“Agreement”).                           The

Agreement provides that S&W “shall defend, protect, indemnify

and hold [Red Roof Inns] harmless” for any claim for damages

which may “arise out of or in connection with” S&W’s performance

of the Agreement, J.A. 42 (¶ 11), including specifically any

“claims or suits arising out of injury to . . . any of [S&W’s]

employees . . . in connection with their performance under this


     1
       “Red Roof Inns” refers to the four entities sued in the
underlying action: Red Roof Inns, Inc., Accor North America,
Inc., Red Roof Franchising, LLC, and RRI Acquisition Co., Inc.
     2
       The matter was heard by a United States magistrate judge,
acting by consent and agreement of the parties pursuant to 28
U.S.C. § 636(c), whom we shall refer to hereafter as the
district court.

                                        3
Agreement,” J.A. 44 (¶ 12).           S&W’s indemnification obligations

under the Agreement “extend to any damages resulting from any

action or omission of [Red Roof Inns], negligent or otherwise.”

Id.   at    42   (¶   11);   see   also       id.   at   44   (¶   12)   (extending

indemnification to Red Roof Inns for claims of personal injury,

“whether or not caused or contributed by the negligence of [Red

Roof Inns]”). 3


      3
          The full text of the relevant provisions provides:

           11.    Indemnity and Insurance. . . . Contractor
      [S&W] shall defend, protect, indemnify and hold
      Customer [Red Roof Inns] harmless from and against any
      liability, loss, cost, threat, suit, demand, claim and
      expense . . . for damages to property or person which
      may arise out of or in connection with any negligent
      act or omission of Contractor in connection with its
      performance   under    this   Agreement . . . .     It  is
      intended    by     the    parties    hereto    that    the
      indemnification obligations of Contractor under this
      Section shall extend to any damages resulting from any
      action   or    omission   of    Customer,   negligent   or
      otherwise, except for damages arising out of the
      intentional or willful misconduct of Customer.

          12.     Injury or Death.        . . . In addition,
     Contractor, its employees and agents hereby waive and
     release   Customer . . . from   any   and   all   claims,
     demands, causes of action for injury to property or
     person . . . arising out of or in connection with
     Contractor’s    performance    under    this    Agreement
      . . . whether or not caused or contributed to by the
     negligence of Customer . . . .       Contractor further
     agrees   to  defend,   protect,   indemnify,    and  hold
     Customer harmless from and against any and all costs,
     losses, claims and expenses . . . as a result of
     claims or suits arising out of injury to or death of
     any of Contractor’s employees . . . in connection with
     their performance under this Agreement, whether or not
(Continued)
                                          4
       S&W    also       purchased     a    general    liability       insurance     policy

(“Policy”) from Scottsdale that contained an endorsement naming

Red Roof Inns as an additional insured.                       The Policy insured Red

Roof   Inns        “with    respect    to       liability    arising    out   of    [S&W’s]

ongoing operations performed for [Red Roof Inns].”                         J.A. 95.

       On    October       14,   2004,     Warren     Keye,    an    S&W   employee,     was

working as a security guard at a motel owned and operated by Red

Roof Inns.          As Mr. Keye was ascending an exterior staircase to

investigate suspected criminal activity on an upper floor of the

motel,       the    metal     rim     of    a    concrete     step    on   the     stairway

collapsed, and he fell backward down several steps.                                Red Roof

Inns   does        not     dispute    its       negligence    for     purposes      of   our

inquiry.

       In October of 2007, Mr. Keye and his wife filed a personal

injury action against Red Roof Inns.                          Red Roof Inns made a

formal demand to S&W to defend and indemnify it under their

Agreement, and to Scottsdale to defend and indemnify it pursuant

to the Policy naming Red Roof Inns as an additional insured.

Both S&W and Scottsdale declined to defend or indemnify, and Red




       caused or contributed by the negligence of Customer,
       its employees or agents . . . .

J.A. 42-43.

                                                 5
Roof Inns brought suit against both.                               All parties moved for

summary judgment.

       On    May    20,    2009,        the      district          court       granted     summary

judgment in favor of S&W and Scottsdale and dismissed Red Roof

Inns’ claims.          The district court reasoned that “it [was] not

plainly evident from the face of the Agreement that S&W agreed

to    indemnify     Red    Roof       Inns      for    damages         resulting      from    [its]

negligent inspection and maintenance of exposed exterior steel

stairwells.”        J.A. 787.          Finding ambiguity, the court considered

extrinsic      evidence      in      the     form      of   deposition          testimony         from

S&W’s      President      and    Chief       Executive           Officer,      who    denied       any

intention      by   the    parties         to    hold       S&W    responsible         under       the

Agreement     for    building          maintenance          or    structural         inspections.

The court held that the parties did not intend to shield Red

Roof Inns from its own negligence in this circumstance.

       In response to Red Roof Inns’ request for reconsideration, 4

on    June    16,   2009,       the     court         issued      an    order     holding         that

Scottsdale did not owe Red Roof Inns indemnity and a defense.

The   court    observed         that    the      Policy      covers       claims      of   “bodily

injury,”      but   only        if     the      bodily      injury        is    caused       by    an

“occurrence.”          J.A. 816.             An “occurrence” is defined in the

       4
       Red Roof Inns requested reconsideration of the May Order
on the grounds that the court did not address the issue of
whether Scottsdale was obligated to provide coverage by virtue
of Red Roof Inns’ status as an additional insured.

                                                 6
Policy      as    “an      accident,      including         continuous        or     repeated

exposure to substantially the same general harmful conditions.”

J.A. 76.         Although the court determined Mr. Keye’s fall was an

accident,        it   nonetheless       found       that   Mr.    Keye’s     fall    did    not

qualify as an “occurrence” under the Policy.                            It reasoned that

the Policy’s coverage was restricted to liability “arising out

of S&W’s ongoing operations” performed for Red Roof Inns, and

because the court had already determined in its May Order that

Mr.   Keye’s      fall      did   not    arise       out   of    the   security      services

provided by S&W under the Agreement, the Policy’s coverage did

not extend to Red Roof Inns as an additional insured.                               J.A. 817-

18.



                                               II.

      Red        Roof        Inns       challenges          the        district       court’s

determinations in both cases, which have been consolidated for

appeal.      As to S&W, Red Roof Inns asserts that the Agreement

unambiguously           provides        for    coverage          irrespective        of     its

negligence.           As to Scottsdale, Red Roof Inns argues that it

qualifies        as   an    “additional       insured”      under      the   Policy.        The

issues are governed by the laws of the District of Columbia and

Maryland, respectively, and we consider each in turn.                                     As to

both, we review the grant of summary judgment de novo, resolving

all doubts        and      inferences     in    favor      of    the   non-moving      party.

                                                7
Seabulk Offshore, Ltd. v. Am. Home Assurance Co., 377 F.3d 408,

418 (4th Cir. 2004).              When reviewing cross-motions for summary

judgment, we consider “each motion separately on its own merits

to determine whether either of the parties deserves judgment as

a matter of law.”             Bacon v. City of Richmond, 475 F.3d 633, 638

(4th Cir. 2007) (internal citations and quotations omitted).                             In

such cases, “we may, if appropriate, direct entry of judgment in

favor       of    the    party   whose     motion    was   denied    by   the    district

court.”          Bakery & Confectionery Union & Indus. Int’l Pension

Fund       v.    Ralph’s    Grocery   Co.,     118    F.3d   1018,    1020      (4th   Cir.

1997).

                                              A.

        We first consider whether the Agreement requires S&W to

defend and indemnify Red Roof Inns for a claim alleging its own

negligence.             Under District of Columbia law, 5 the first step in

contract         interpretation       is    determining      “the     intent      of    the

parties entering into the agreement.”                      Steele Founds., Inc. v.

Clark Constr. Grp., Inc., 937 A.2d 148, 154 (D.C. 2007).                                The

question of intent is resolved by deciding “what a reasonable

person in the position of the parties would have thought the


       5
       Both parties agree that, pursuant to a choice of law
provision in the Agreement (Section 15), the laws of the
District of Columbia govern the interpretation of the security
services contract.    See J.A. 774; Appellant’s Br. at 16,
Appellee’s Br. at 12.

                                              8
disputed language meant.”                Psaromatis v. English Holdings I,

LLC, 944 A.2d 472, 481 (D.C. 2008) (quoting 1010 Potomac Assocs.

v. Grocery Mfrs. of Am., Inc., 485 A.2d 199, 205 (D.C. 1984)).

In so doing, the contractual provisions “must be interpreted as

a whole,” id., “so as to give effect, if possible, to all of the

provisions in the contract,” Steele Founds., 937 A.2d at 154.

       If the instrument is facially unambiguous, “its language

should      be     relied    upon       as    providing        the     best    objective

manifestation of the parties’ intent.”                       1010 Potomac, 485 A.2d

at 205.      Only in the event of ambiguity may a court consider

extrinsic        evidence   of    the    parties’         subjective       intent.     Id.

Whether a contract’s language is ambiguous is a question of law.

Steele Founds., 937 A.2d at 153.                    Ambiguity exists “only if the

court determines that the proper interpretation of the contract

cannot be derived from the contractual language exclusively, and

requires consideration of evidence outside the contract itself.”

Id.

       Parties are free to enter into indemnification contracts

under District of Columbia law.                     See    W.M. Schlosser Co., Inc.

v.    Md.   Drywall     Co.,     Inc.,       673    A.2d    647,     653   (D.C.     1996).

However, indemnity provisions should be construed to permit an

indemnitee to recover for its own negligence only if “the court

is firmly convinced that such an interpretation reflects the

intention        of   the   parties.”              Id.    (internal    quotations      and

                                              9
citation omitted).           The question here becomes, then, whether the

Agreement “clearly reflects” the parties’ intention to indemnify

Red Roof Inns for claims involving its own negligence.                          Id.     We

find that it does.

     The Agreement requires S&W to defend and indemnify Red Roof

Inns for “any injury to any person . . . resulting from or

arising    out   of     any    act    .   .    .   in     connection     with    [S&W’s]

performance      under       this    Agreement.”          J.A.    42   (¶    11).       It

expressly states that the indemnification “is intended by the

parties” to “extend to any damages resulting from any action or

omission    of   [Red    Roof       Inns],     negligent     or   otherwise.”          Id.

(emphasis added).            Paragraph 12 of the Agreement is even more

specific,     explicitly        providing          that    S&W    will      defend     and

indemnify Red Roof Inns for any claims or suits brought by S&W

employees against Red Roof Inns for injuries “arising out of or

in   connection       with     [S&W    employees’]        performance       under     this

Agreement . . . whether or not caused or contributed [to] by the

negligence of [Red Roof Inns].”                J.A. 44 (emphasis added).

     S&W argues that the language in the Agreement is, at best,

ambiguous because it is “susceptible to more than one reasonable

interpretation.”         Appellees’ Br. at 20.                S&W contends that a

reasonable person could interpret the Agreement to mean that S&W

agreed to defend and indemnify Red Roof Inns for “the potential

hazards that would normally attend the performance of a contract

                                              10
for security services.”          Id. at 17-18.     As support for this

proposition, S&W cites Paragraph 11(b) of the Agreement, which

requires S&W to maintain

     Comprehensive   General   Liability   insurance   (with
     independent contractor’s coverage and coverage for
     liability assumed under contract, for libel, slander,
     defamation, false arrest, detention or imprisonment,
     malicious prosecution, wrongful entry or eviction,
     invasion of privacy, and for any claim for loss of
     property of Customer caused by a dishonest or
     fraudulent act of an employee of Contractor) . . . .

J.A. 43.    S&W asserts that this description of the liability

insurance coverage S&W is responsible for procuring for Red Roof

Inns limits the scope of S&W’s indemnification to “the list of

specifically    covered    events”   enumerated    in     Paragraph   11(b).

Appellee’s Br. at 17-18.         However, a plain reading of Paragraph

11(b) in no way suggests that the examples listed are meant to

be exhaustive, or that the type or scope of liability insurance

coverage   is   intended    to    limit   the   general     indemnification

provisions found in Paragraphs 11 and 12.

     Recognizing    the    Agreement’s    specificity     with   respect   to

negligence, S&W contended at oral argument that the language was

too specific.      In response to the question of what more the

Agreement would have to say to demonstrate its intent to cover

negligence, counsel asserted that the indemnification provisions

would need to be so broad and inclusive as to state that “the

Contractor [S&W] agrees to defend and indemnify the Customer


                                     11
[Red Roof Inns] for any and all negligence claims by an S&W

employee,”        and    to     not    include       the      qualifier            “under     this

Agreement.”             S&W’s     proposed         language        is        unrealistic       and

unworkable.           The fallacy of its contention is readily apparent.

If   the        indemnification            provisions        were        not        limited        to

performance       under       this    Agreement,       S&W    would           be    required       to

defend and indemnify Red Roof Inns for any and all claims of

negligence brought by S&W employees, whether or not they worked

for Red Roof Inns.

     As     written,          Paragraphs      11      and     12        of     the     Agreement

specifically and unambiguously evidence an intent by the parties

to indemnify Red Roof Inns for its negligence.                                      District of

Columbia        law    confirms      this    reading.         For        example,       in    W.M.

Schlosser Co., Inc. v. Md. Drywall Co., Inc., 673 A.2d 647 (D.C.

1996),     an    employee       of    the    subcontractor-indemnitor                  sustained

serious     injuries       after      falling       through    a    door-sized           opening

three stories high on a construction site.                          The employee sought

damages from the general contractor, Schlosser, whose site did

not meet safety standards.                    Id.      at 649.               Schlosser sought

indemnification           from       the     subcontractor              under        contractual

language    providing         indemnity      for     “any     and       all    claims    .     .   .

arising out of . . . or in connection with the execution of the

work” contemplated by the contract.                    Id. at 653.                 The Schlosser

court viewed the provision as “clear and certain in its terms

                                              12
giving rise to no ambiguity.”                Id. at 654.         It was “satisfied

that the language of the contract is sufficiently clear that

[indemnitor] is responsible not only for its own negligence, but

that its liability also stretches to encompass [indemnitee’s]

negligence as well.”           Id.    (internal quotations omitted).

       Similarly, in           N.P.P. Contractors, Inc. v. John Canning &

Co., 715 A.2d 139 (D.C. 1998), the general contractor sought

indemnification         from    the    subcontractor       for     its    own    alleged

“negligence        in   erecting,       maintaining       and/or      inspecting       the

scaffolding [which] was a proximate cause of” injuries suffered

by     the       subcontractor’s       employee.          Id.      at     140.         The

indemnification clause required the subcontractor-indemnitor to

“indemnify and save harmless the [indemnitee] from any and all

claims       and     liability        for   property      damage         and     personal

injury . . . arising out of or resulting from or in connection

with the execution of the work.”                   Id.     The court found this

language “unambiguous and enforceable.”                    Id. at 142 (agreeing

that       the   indemnification       clause    before    it    is     “so    broad   and

sweeping” as to cover damages “incurred in whole or in part by

the negligence of the indemnitee”) (emphasis omitted); 6 see also


       6
        S&W argues that because the above-cited cases                                  are
construction law cases, they are distinguishable because of                            the
“differing natures of the work to be executed, and                                     the
respective frame of reference of the parties.”   Appellees’                            Br.
at 27. It cites no law to support its proposition, nor do                              the
(Continued)
                                            13
Princemont Constr. Corp. v. Baltimore and Ohio R.R. Co., 131

A.2d 877, 877-78 (D.C. 1975) (deeming an indemnification clause

for “all liability for any and all loss and damage to property

and claims for injury to or death of persons in connection with

or growing out of” the contract to be “broad and comprehensive”

enough “to exonerate the [indemnitee] from liability for its own

negligent acts”).

     In short, if the indemnification language in the above-

cited     cases    unambiguously      evidenced     the   parties’      intent    to

encompass    the    indemnitee’s      negligence,      surely    the   Agreement’s

indemnification language does here as well.                 For the Agreement

goes one step further by expressly stating that it is “intended

by the parties” that S&W’s indemnification obligations extend to

any damages resulting from Red Roof Inns’ acts or omissions,

“negligent or otherwise.”          J.A. 42 (¶ 11).        In other words, even

if the “negligent or otherwise” phrases were missing from the

Agreement, District of Columbia precedent establishes that the

remaining       provisions,    with   their    repeated    use    of   “any,”    are

sufficiently broad and comprehensive to find indemnification of

damages    or     injuries    resulting    from   an   indemnitee’s      negligent

acts.     See Schlosser, 673 A.2d at 654 (finding that clauses at




challenged cases themselves suggest that                  their   holdings       only
apply in the construction law context.

                                          14
issue in other cases--such as “indemnify . . . from any and all

claims,” “indemnify against any loss,” or “assume all liability

for any and all loss”--were all “sufficiently comprehensive as

to   include   indemnification        for      damages    resulting     from    the

negligence of [indemnitee]”) (emphasis added).                  Because we find

that the Agreement’s indemnification language is not susceptible

to more than one reasonable interpretation, we need not consider

the testimony of S&W’s President and CEO, or any other extrinsic

evidence.

     The Agreement’s defense and indemnification provisions are

unambiguous and clearly show that the parties agreed S&W would

bear the financial burden for injuries sustained in connection

to   S&W’s   performance     of    the    Agreement--even       those    injuries

resulting    “from   any   action    or       omission   of   [Red   Roof    Inns],

negligent or otherwise.”          J.A. 42.      As a result, S&W must defend

and indemnify Red Roof Inns against Mr. Keye’s claim.                       J.A. 43

(requiring S&W to “defend,” “indemnify,” and “hold harmless” Red

Roof Inns “from and against any and all costs, losses, claims

and expenses” resulting from “claims or suits arising out of

injury   to . . . any      of   [S&W’s]        employees . . . in     connection

with their performance under this Agreement”).                 It is undisputed

that Mr. Keye was injured while working as an employee for S&W.

Moreover, S&W conceded at oral argument that there is no dispute

Mr. Keye was ascending the staircase in the performance of his

                                         15
duties as a security guard, as he was investigating suspected

criminal activity on an upper floor.               This is the very type of

security   service   contemplated      by    the    Agreement.       We     see    no

reasonable interpretation under District of Columbia law other

than that Mr. Keye’s injury “ar[o]se out of or in connection

with”    S&W’s   performance     under      the    Agreement.        See,    e.g.,

Schlosser, 673 A.2d at 653 (holding that injuries sustained by

indemnitor’s     employee      while     performing       contract       work     on

indemnitee’s work site arose out of or “in connection with the

execution of the work” despite being caused by indemnitee’s own

negligence); Grunley Constr. Co. v. Conway Corp., 676 A.2d 477,

477-78   (D.C.   1996)   (same).         Pursuant    to   the    terms      of    the

Agreement, Red Roof Inns is entitled to both indemnity and a

defense from S&W as a matter of law.

                                       B.

     We next consider Red Roof Inns’ argument that the district

court erred by finding that Scottsdale does not have a duty to

defend or indemnify it in the underlying Keye action.                     Applying

the same de novo standard of review, we determine whether an

insurer has a duty to defend an insured by following the two-

part inquiry set forth under Maryland law. 7              We first assess the


     7
        Maryland law governs the insurance policy issued by
Scottsdale.     The primary purpose in construing insurance
contracts under Maryland law “is to ascertain and give effect to
(Continued)
                                       16
nature of the coverage and terms of the insurance policy, and

then   determine   whether   the   allegations   in   the   tort   action

potentially bring the tort claim within the insurance policy’s

coverage.     Aetna Cas. & Surety Co. v. Cochran, 651 A.2d 859,

862 (Md. 1995); see also Walk v. Hartford Cas. Ins. Co., 852

A.2d 98, 106 (Md. 2004).      In undertaking this analysis, we look

to (1) the language and requirements of the liability insurance

policy and (2) the allegations of the complaint.            Aetna Cas. &

Surety Co., 651 A.2d at 862.

                                   i.

       With regard to the first step of the inquiry--the nature of

the insurance policy’s terms--the Policy here provides coverage

for Red Roof Inns “with respect to liability arising out of

[S&W’s] ongoing operations performed for [Red Roof Inns].”           J.A.

95.     Paragraph 1(a) of Section I of the Policy specifically

states:

       [Scottsdale] will pay those sums that [Red Roof Inns]
       becomes legally obligated to pay as damages because of
       “bodily injury” or “property damage” to which this
       insurance applies.   [Scottsdale] will have the right
       and duty to defend [Red Roof Inns] against any “suit”
       seeking those damages.     However, [Scottsdale] will
       have no duty to defend [Red Roof Inns] against any



the intentions of the parties at the time of contracting,” which
requires construing the instrument “as a whole.”        Catalina
Enter., Inc. Pension Trust v. Hartford Fire Ins. Co., 67 F.3d
63, 65 (4th Cir. 1995) (internal citations and quotations
omitted).

                                   17
      “suit” seeking   damages   for  “bodily  injury”   or
      “property damages” to which this insurance does not
      apply.     [Scottsdale]  may,  at  [its]  discretion,
      investigate any “occurrence” and settle any claim or
      “suit” that may result.

J.A. 63 (¶ 1(a)).        The Policy covers claims of “bodily injury,”

but only if the injury is caused by an “occurrence.”                          Id. (¶

1(b)(1)).        According to the Policy, an “occurrence” means “an

accident,        including   continuous          or     repeated     exposure      to

substantially the same general harmful conditions.”                       J.A. 76.

The Policy does not define the word accident, but the Court of

Appeals     of    Maryland   has    held    that       “an   act    of   negligence

constitutes      an   ‘accident’    under    a    liability       insurance     policy

when the resulting damage . . . is unforeseen or unexpected by

the insured.”         Sheets v. Brethren Mut. Ins. Co., 679 A.2d 540,

548 (Md. 1996) (internal citations and quotations omitted).                        As

the district court found, Mr. Keye’s fall was an “accident”--it

was not within Red Roof Inns’ foresight or expectation, nor that

of anyone else.        And an “accident” in the Scottsdale policy is,

by definition, an “occurrence.”             But Scottsdale asserts Red Roof

Inns is nonetheless precluded from coverage.                       It reasons that

the Policy limits Red Roof Inns’ coverage to “liability arising

out   of   [S&W’s]      ongoing    operations         performed    for   [Red    Roof

Inns],” J.A. 80, and an occurrence/accident resulting from Red

Roof Inns’ negligent maintenance of the stairs is not a failure

that arose out of the work which S&W was contracted to perform.

                                       18
     While the phrase “arising out of” has been the subject of

prior    interpretation    by    Maryland      courts,     it   does   not   have   a

single,     “settled    meaning”        that   applies     to     every   insurance

policy.     Phila. Indem. Ins. Co. v. Md. Yacht Club, Inc., 742

A.2d 79, 86 (Md. Ct. Spec. App. 1999).                The phrase “arising out

of” must be construed on a “contract by contract or case by case

basis.”     Id.     Scottsdale argues that the phrase “arising out of”

in this particular case requires a more stringent, direct link

between the cause of the injury and the resulting injury--that

is, proximate causation.         We agree with Red Roof Inns, however,

that under Maryland law, a “but for” causal link--that is, a

loose cause and result relationship--is enough to satisfy the

Policy’s “arising out of” requirement.

     The    Maryland     Court     of     Appeals    has    not    construed    the

“arising out of” language in a case which specifically involves

the endorsement clause of a general liability insurance policy.

The court has, however, interpreted this language with respect

to other insurance contract clauses.                 For example, in Northern

Assurance Co. of America v. EDP Floors, Inc., 533 A.2d 682 (Md.

1987), the court construed an exclusionary clause of a general

business    liability     policy    which      excluded     from     coverage   any

bodily     injury    “arising    out      of   the   ownership,        maintenance,

operation, use, loading or unloading of . . . any automobile.”

Id. at 686.       An employee of an EDP Floors customer was injured

                                          19
while assisting with the unloading of an EDP Floors truck, and

the employee filed suit against EDP Floors, alleging liability

for negligent supervision.              Id. at 684.

       The     Maryland      Court   of    Appeals    explained      that    the    words

“arising out of” must be afforded “their common understanding,

namely, to mean originating from, growing out of, flowing from,

or the like.”         Id. at 688.         “While these words plainly import a

causal    relation      of    some   kind,    read    in    context,    they       do   not

require that the unloading of the truck be the sole ‘arising out

of’    cause    of    the    injury.”       Id.      In    other   words,    the    court

“reasoned that an injury could arise from various sources, but

that the exclusion from coverage would apply as long as the

clause covered at least one of the sources.”                       Teletronics Int’l,

Inc. v. CNA Ins. Co., 302 F. Supp. 2d 442 (D.Md. 2004), reversed

on other grounds, 120 F. App’x 440 (4th Cir. 2005) (interpreting

EDP Floors and other Maryland cases).                      EDP Floors rejected an

argument,      much    like    the   one    Scottsdale      makes    here,    that      the

employer’s negligence broke the chain of causation.                          Instead it

adopted a more lenient, “but for” causation approach, finding

that     “if    [claimant’s]         bodily       injury    arose     out    of     EDP’s

employee’s unloading of the truck, then that injury is excluded

from coverage . . . regardless of whether the injury may also be

said to have arisen out of other causes further back in the

sequence of events.”           EDP Floors, 533 A.2d at 689.

                                            20
     Similarly        instructive          is    the       court’s          decision       in     Mass

Transit Administration v. CSX Transportation, Inc., 708 A.2d 298

(Md. 1998).      While the court in CSXT was called on to interpret

an   indemnification          provision         and       not     a      liability        insurance

policy, it noted that, “[i]nasmuch as the indemnification was

intended . . . to serve as liability insurance for . . . CSXT’s

liability,      it     is     appropriate            to     interpret         and        apply    the

indemnification        in        the    same     manner         as       liability        insurance

policies.”      Id. at 304.               CSXT was under contract to the Mass

Transit Administration of Maryland (“MTA”) to provide commuter

rail service, and the MTA agreed to indemnify and defend CSXT

for liability “arising out of the Contract Service under this

Agreement.”          Id.    at     300.        CSXT       hired      a     contractor      to     pave

several of its public road crossings.                           The contractor’s backhoe

was subsequently destroyed when a CSXT commuter train struck it.

     The    contractor           brought       suit       against        CSXT,     who     in    turn

sought     indemnification              from     the        MTA,         averring        that     the

contractor’s claim against it “arose out of” contract service

because the commuter train was the direct physical cause of the

damage to the backhoe.                    The MTA, much like Scottsdale here,

argued   that    CSXT’s       negligence         “further          back      in    the    chain    of

causation,      caused       the       accident.”           Id.       at    305.         The     court

rejected    this     more     stringent         proximate          cause      requirement          and

interpreted      the        phrase       “arising         out     of”       in     the     CSXT-MTA

                                                21
agreement to require only “but for” causation.             It reasoned that

CSXT’s own negligence in failing to warn the contractor of an

approaching train “d[id] not diminish the fact that the damage

to the backhoe arose out of the collision with the [commuter]

train.”    Id.

     Scottsdale contends, however, that the Maryland Court of

Appeals’ decision in Phila. Indem. Ins. Co. v. Md. Yacht Club,

Inc., 742 A.2d 79 (Md. Ct. Spec. App. 1999) demonstrates that a

stronger    nexus     between   the   injury   and   policy     provision   is

required.        In that case, an insurance company unsuccessfully

attempted to avoid defense and indemnification for an employee’s

claim of wrongful discharge, which the employee contended was

motivated by his “having sought [workers compensation] benefits

for a leg injury.”           Id. at 83-84.      Contrary to Scottsdale’s

insistence that Md. Yacht Club is relevant to our analysis here,

we   believe     a   claim   for   wrongful    discharge   is    analytically

distinct from a claim expressly for bodily injury, and do not

find the case instructive. 8          Instead, we believe the court’s


     8
       Apart from its citation to Md. Yacht Club, Scottsdale
relies almost exclusively on cases interpreting “arising out of”
in the context of the Maryland Uninsured Motorist Act.     We do
not find these decisions relevant to our inquiry, given that
uninsured motorist claims implicate a distinctive type of
insurance coverage that is not at issue here.
     Scottsdale also urges us to follow G.E. Tignall & Co. v.
Reliance National Insurance Co., 102 F. Supp. 2d 300 (D. Md.
2000), a federal district court case applying Maryland state law
(Continued)
                                      22
rulings   in   EDP   Floors   and   CSXT   are   more   applicable   to   the

context, and Policy terms, found in the case at bar.                 There,

like here, the damage/injury would not have occurred but for the

claimant’s performance of its duties pursuant to the underlying

contract, and the existence of other reasons or sources of the

damage/injury did not diminish the “arising out of” causal link

that had been established.          Accordingly, we conclude, just as

those cases did, that the Policy’s “arising out of” language in

this case requires no more than “but for” causation.            The causal

requirement is met regardless of whether Mr. Keye’s injury may

also be said to have arisen out of Red Roof Inns’ negligent

failure to maintain the stairwell.




to a disputed endorsement clause that contains an “arising out
of” provision similar to the disputed language here. The court
found that the endorsement clause was unambiguous and that the
insurance policy did not cover Tignall for its own negligent
acts.    Significantly, the district court did not discuss
Maryland case law finding the phrase “arising out of” ambiguous,
or those decisions requiring only “but for” causation.      As a
result, we are not persuaded by its reasoning.
     In short, Scottsdale fails to cite any Maryland case that
indicates we must adopt a proximate cause approach.    It merely
contends that “[n]othing in the more recent cases precludes this
Court from applying a standard other than ‘but for’ causation to
the instant circumstances.”     Appellees’ Br. at 40 (emphasis
added). We disagree and find that Maryland case law establishes
that “but for” causation satisfies the Policy’s “arising out of”
requirement here.

                                     23
                                   ii.

     Having examined the terms of the Policy, we now turn to the

second step of the Aetna inquiry, which considers whether the

facts   alleged   in   the   complaint    bring   Mr.   Keye’s   tort   claim

within the Policy’s coverage.            The complaint alleges that Mr.

Keye was injured while “working at a motel as a security guard

for S&W Protective Services, Inc. a security company contracted

by [Red Roof Inns].”         J.A. 17.     It further claims that “[a]t

that time, while Plaintiff was ascending one of the stairways at

the motel, the metal rim on the edge of a concrete step on the

stairway collapsed when Plaintiff put his foot on said step” and

he fell, sustaining multiple injuries.            J.A. 17-18.      In other

words, S&W was employed to provide security services at Red Roof

Inns, and at the time he sustained his injury, Mr. Keye was an

S&W employee providing the sort of security service work that

S&W was contracted to perform.

     As explained above, the Policy covers claims for “bodily

injury” caused by “occurrences” (or, accidents).                 Mr. Keye’s

allegations in the complaint not only indicate that he suffered

bodily injury as the result of an accident, just as the district

court found; they also establish that he would not have been

injured on the Red Roof stairway that day but for his presence

on the stairway as a result of his employment with S&W and his

carrying out of security services pursuant to his employer’s

                                    24
contract with Red Roof Inns.               This “but for” causal link is

sufficient under the terms of the Policy irrespective of any

negligence on Red Roof Inns’ part that could be characterized as

an    additional     reason   for   the    injury.         Mr.    Keye’s    injury--as

alleged      in    his   complaint--“ar[ose]         out     of    [S&W’s]     ongoing

operations performed for [Red Roof Inns].”                       J.A. 95.    Red Roof

Inns is entitled to both coverage and a defense from Scottsdale

as a matter of law. 9



                                        III.

       For   the    foregoing    reasons,       we   reverse       and     vacate    the

judgment of the district court granting summary judgment to S&W

and   Scottsdale.        On   remand,     the   district     court       should     enter

summary judgment in favor of Red Roof Inns.

                                                                              REVERSED




       9
       Scottsdale’s argument that “there are no provisions in the
Policy permitting Red Roof to gain coverage for negligence that
predated the policy,” Appellee’s Br. at 44, is meritless.     The
Policy’s coverage is triggered not by the date when Red Roof
Inns’ alleged negligence began, but by the date when “bodily
injury” occurred. J.A. 63.

                                          25
