                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-1557


NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA,

                Plaintiff - Appellant,

           v.

EZRA LAMBERT; BETTY JEAN HALE,

                Defendants - Appellees.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Joseph R. Goodwin,
Chief District Judge. (2:08-cv-01158-JRG)


Argued:   November 8, 2011                 Decided:   January 20, 2012


Before DUNCAN, WYNN, and DIAZ, Circuit Judges.


Reversed and remanded by unpublished opinion.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


ARGUED: Thomas Paul Mannion, MANNION & GRAY CO., LPA, Cleveland,
Ohio, for Appellant. Brent K. Kesner, KESNER, KESNER & BRAMBLE,
Charleston, West Virginia, for Appellees.   ON BRIEF: Sylvester
A. Hill, Jr., MANNION & GRAY CO., LPA, Cleveland, Ohio, for
Appellant.     Christopher J. Heavens, HEAVENS LAW OFFICES,
Charleston, West Virginia; Gregory K. Smith, Williamson, West
Virginia, for Appellee Betty Jean Hale.


Unpublished opinions are not binding precedent in this circuit.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

     The district court entered summary judgment in favor of

Betty    Jean   Hale    and    Ezra   Lambert,         ruling    that   Lambert    was

covered    under    West     Virginia’s        general    insurance     policy    as   a

“volunteer worker.”           Because we are convinced that Lambert, a

prison inmate, cannot possibly meet the definition of “volunteer

worker”    as   found   in    the   policy,       we   reverse    and   remand    with

instructions to enter judgment in favor of the insurer.



                                           I.

                                           A.

        Ezra Lambert is an inmate at the Southwestern Regional Jail

(“Jail”) in West Virginia.                As a sentenced inmate, Lambert is

required to work at the Jail.              He may announce a preference from

a limited menu of options to fulfill his work obligation, but

the assignment is ultimately within the sole discretion of the

Jail.     Lambert sought to work in the kitchen, because he wished

“[t]o eat extra food and to get out of [his] cell.”                        J.A. 118.

He   accordingly       submitted      a    written       application     to   Aramark

Correctional Services, Inc., the contractor in charge of kitchen

operations.        After interviewing with supervisors from Aramark,

Lambert began work in the Jail’s kitchen.

        Lambert generally worked six days a week for eight hours

each day as a cook in the kitchen.                     He received no financial

                                           2
benefits from his service.         Although Lambert considered himself

a volunteer, the Jail’s coercive authority over him was ever

present.     Indeed,      the   Jail    provided       Lambert   with   a   stark

reminder of its power when it disciplined him for protesting

working conditions.        Lambert quit work in the middle of a shift

in an effort to attract attention to his workplace grievances.

The Jail responded by locking him down--i.e., putting him in

“the hole”--for five days.

     Betty Jean Hale worked with Lambert in the Jail’s kitchen,

though she was not an inmate.          Hale alleges that Lambert injured

her on October 6, 2006.         According to Hale, Lambert was pushing

a cart housing a mixer.         As Lambert neared Hale, the mixer fell

from the cart, landing on Hale’s foot.                 Hale alleges that she

suffered a serious injury and incurred medical expenses as a

result.



                                       B.

     Pursuant    to   a   comprehensive       liability     policy    (“Policy”),

West Virginia obtained insurance coverage from National Union

Fire Insurance Company of Pittsburgh, PA.               National Union agreed

to “pay on behalf of the ‘insured’ all sums which the ‘insured’

shall   become   legally    obligated       to   pay   as   damages   because   of

‘bodily injury’ or ‘property damage’ to which this insurance

applies, caused by an ‘occurrence.’ ”                  J.A. 23.       It further

                                        3
assumed     “the   right   and     duty   to   defend      any    suit       against   the

‘insured’ seeking damages on account of such ‘bodily injury’ or

‘property damage.’ ”         Id.

      The Policy defined “insured” as “any person or organization

qualifying as an insured in the ‘persons insured’ provision of

the applicable insurance coverage.”                 Id. 43.        Critical to this

dispute,     the    Policy     enumerated         the     following      entities      as

“persons insured”:

      (A)    The “Named Insured” [i.e., the State of West
             Virginia],
      (B)    Any elected or appointed official, executive
             officer, commissioner, director, or member of the
             “Named Insured” while acting within the scope of
             his duties as such,
      (C)    Any faculty member, employee, volunteer worker or
             student teacher of the “Named Insured” while
             acting within the scope of their duties as such.

Id. 25 (emphasis added).              This appeal centers on whether Lambert

qualifies as a “volunteer worker” for purposes of the Policy.



                                          C.

      Hale    filed   suit       in    state      court    in    2007    (“Underlying

Action”),     alleging     various       claims    arising       out    of    the   mixer

incident.      She named as defendants Lambert, Aramark, the West

Virginia Department of Military Affairs and Public Safety, and

the   West    Virginia     Regional        Jail     and    Correctional         Facility

Authority.



                                           4
       Notified of Hale’s suit, National Union filed a declaratory

action in federal court, seeking a declaration that it has no

duty    to    defend      or   indemnify       Lambert       with   regard      to    the

Underlying Action.         “Based on the plain and unambiguous language

of [the Policy],” alleged National Union, it “has no contractual

duty to defend or provide any other policy benefits to . . .

Lambert.”       J.A.   18.      In   response,        Hale    asked    the   court      to

declare      that   Lambert    is    an   “insured”      under      the   Policy      and

therefore entitled to a defense and indemnification.                            Lambert

independently sought an identical declaration.

       National Union and Hale filed competing motions for summary

judgment.      A single issue confronted the district court--whether

Lambert qualified as a “volunteer worker” under the Policy.                           The

court     answered     that     question        in    the      affirmative,          first

determining that the term was unambiguous and then finding that

Lambert “qualifies as a ‘volunteer worker’ under any reasonable

definition     of   the    term.”     Id.      196.      Because      Lambert    worked

without compensation, elected to work in the kitchen rather than

elsewhere, and considered himself a volunteer, the court ruled

that the term “volunteer worker” encompassed him.

       The court accordingly entered judgment in favor of Hale and

Lambert      (“Appellees”),      denying       National       Union’s     motion      for

summary judgment.         From this order National Union appeals.



                                           5
                                         II.

       We review a grant of summary judgment de novo, applying the

same legal standards as the district court.                       The News & Observer

Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576

(4th Cir. 2010).          The Federal Rules’ familiar command guides our

analysis, and summary judgment is appropriate “if the movant

shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law,” Fed

R. Civ. P. 56(a).

       Appellees     admit    that    Lambert       is    an     “insured”     under       the

Policy--and therefore entitled to a defense and indemnification-

-only    if    he    is   considered     a       “volunteer       worker.”           Further

conceding that Lambert was obligated to work at the Jail in some

capacity, Appellees nevertheless contend that Lambert’s choice

to work in the kitchen counsels a finding that he qualifies as a

“volunteer worker” under the Policy.                    We, however, are convinced

that    Appellees’        argument    obscures          the    broader       portrait       of

institutional       confinement,      which       is    hallmarked      by     the    Jail’s

coercive authority over inmates like Lambert.                          Attention to the

realities of Lambert’s status as an inmate--in particular, his

duty    to    work--compels        reversal.           Because    we    hold       that    the

ordinary      definition      of    “volunteer         worker”     does      not     include

Lambert,      we    reverse   and    remand       to     the   district       court       with

instructions to enter judgment in favor of National Union.

                                             6
                                           A.

     Under West Virginia law, 1 courts must enforce the plain and

unambiguous     provisions      of    an    insurance   policy,    refusing      to

become     ensnared    in     the     parties’    intricate   interpretative

debates.      Shamblin v. Nationwide Mut. Ins. Co., 332 S.E.2d 639,

642 (W. Va. 1985).           Recognizing that a comprehensive insurance

policy cannot possibly include a definition for every term used,

courts applying West Virginia law must “accord the language of

an insurance policy its common and customary meaning.”                   Boggs v.

Camden-Clark Mem’l Hosp. Corp., 693 S.E.2d 53, 57–58 (W. Va.

2010).     In other words, “ ‘[l]anguage in an insurance policy

should   be   given    its   plain,    ordinary   meaning.’ ”       Id.    at    58

(quoting Horace Mann Ins. Co. v. Adkins, 599 S.E.2d 720, 724 (W.

Va. 2004)).

     Only where a term is ambiguous--“ ‘reasonably susceptible of

two different meanings or . . . of such doubtful meaning that

reasonable     minds   might    be    uncertain    or   disagree    as    to    its


     1
        The parties agree that West Virginia law governs
interpretation of the Policy, with good reason.    We apply the
substantive law of the forum state, including the state’s
choice-of-law rules, when sitting in diversity.      Colgan Air,
Inc. v. Raytheon Aircraft Co., 507 F.3d 270, 275 (4th Cir.
2007).   Under the law of West Virginia--the forum state here--
the law of the state in which the contract is executed and to be
performed governs adjudication of claims arising out of that
agreement. Howe v. Howe, 625 S.E.2d 716, 721 (W. Va. 2005). In
this case, that state is West Virginia.



                                           7
meaning’ ”--will a court construe the policy “ ‘strictly against

the insurer and liberally in favor of the insured.’ ”                       Shamblin,

332 S.E.2d at 642 (quoting Surbaugh v. Stonewall Cas. Co., 283

S.E.2d 859, 860–61 (W. Va. 1981)).                But West Virginia courts are

not predisposed to adjudge a term ambiguous, and “ ‘agreements

are    not    necessarily     ambiguous       [just]       because    the    parties

disagree as to the meaning of the language of the agreement.’ ”

Tri-State Asphalt Prods., Inc. v. Dravo Corp., 412 S.E.2d 225,

230    (W.   Va.   1991)   (quoting    Orteza       v.   Monongalia    Cnty.       Gen.

Hosp., 318 S.E.2d 40, 43 (W. Va. 1984)).                        Moreover, even a

provision      facially     amenable     to       alternative     interpretations

“should never be interpreted so as to create an absurd result.”

D’Annunzio v. Security-Conn. Life Ins. Co., 410 S.E.2d 275, 279

(W.    Va.   1991)   (quoting   Soliva       v.   Shand,    Morahan   &     Co.,    345

S.E.2d 33, 35 (W. Va. 1986)).                Instead, such language “should

receive a reasonable interpretation, consistent with the intent

of the parties.”       Id. at 41 n.1 (quoting Soliva, 345 S.E.2d at

35).



                                       B.

       Concluding, consistent with the parties and the district

court, that the term “volunteer worker” is unambiguous, we next

consider the appropriate contours of its meaning.



                                         8
      We first look to the “common and customary meaning,” Boggs,

693 S.E.2d at 58, of “volunteer.”                           Freedom from coercion and

absence of legal obligation compose the bedrock of definitions

of “volunteer.”            For instance, Black’s Law Dictionary defines

“volunteer”         as      “[a]    voluntary                actor,”       one      who       acts

“[u]nconstrained by interference . . . [or] outside influence”

and has no legal obligation.                   Black’s Law Dictionary 1711 (9th

ed. 2009).        Webster’s defines “volunteer” as “a person whose

actions are not founded on any legal obligation so to act” and

who   acts    “by    free     choice[,]         .       .    .    without      compulsion       or

obligation.”         Webster’s       Unabridged              Dictionary        2131     (2d    ed.

2001).     And in the federal statutory context, the Fair Labor

Standards     Act        (“FLSA”)   considers               as    volunteers        only      those

individuals       whose     “services      are          offered       freely      and      without

pressure     or     coercion,       direct         or       implied.”          29     C.F.R.     §

553.101(c).

      Although      no     court    has   squarely               applied    the     commonsense

definition     of        “volunteer”      to       the       prison    context,         judicial

appraisal of the status of inmates for FLSA purposes guides our

inquiry.      Courts have soundly rejected prisoners’ claims that

compulsion    to     work     for   less       than         the    federal       minimum      wage

contravenes the FLSA, holding that inmates are not “employees”




                                               9
for    purposes   of   the   statutory    scheme. 2      The    Seventh      Circuit

provided a cogent explication for refusing to extend the term

“employee” to cover an incarcerated individual:

       Put simply, the [jail’s] “control” over [the inmate]
       does not stem from any remunerative relationship or
       bargained-for exchange of labor for consideration, but
       from incarceration itself.      The control that the
       [jail] exercises over a prisoner is nearly total, and
       control over his work is merely incidental to that
       general control.    Indeed, the Thirteenth Amendment’s
       specific exclusion of prisoner labor supports the idea
       that a prisoner performing required work for the
       prison is actually engaged in involuntary servitude,
       not employment. . . . [T]here is too much control to
       classify the relationship as one of employment.

Vanskike    v.    Peters,    974   F.2d       806,   809–10    (7th   Cir.    1992)

(footnote omitted).

       We looked to Vanskike with approval when we rejected an

inmate’s argument that he was covered by the FLSA’s definition

of “employee.”         Harker v. State Use Indus., 990 F.2d 131, 133

(4th Cir. 1993).        We held “categorically” that the FLSA does not

apply “to work done by inmates behind prison walls for any type

of prison-operated industry or for the prison itself.”                       Id. at

135.        Characterizing         the        jail-inmate      relationship      as


       2
       Appellees urge us not to rely on FLSA cases, because the
cases do not involve insurance policies and are limited to
disputes over the federal minimum wage.          This view is
shortsighted.    Judicial evaluation of the argument that an
inmate qualifies as an “employee” under the FLSA necessarily
implicates questions of coercion and control, elements essential
to disposition of this case.



                                         10
“custodial,”    we    reasoned      that       the    jail    “wields    virtually

absolute control over [inmates] to a degree simply not found in

the free labor situation of true employment.”                  Id. at 133.       That

inmates may voluntarily apply for particular positions was of no

moment to our analysis, as inmates “certainly are not free to

walk off the job site and look for other work.”                  Id.    We further

found   noteworthy    that,   “[w]hen      a    shift   ends,    inmates    do    not

leave [jail] supervision, but rather proceed to the next part of

their regimented day.”        Id.     Our analysis harmonizes with that

of other circuits to later consider the issue.                   See Burleson v.

California,    83    F.3d   311,    314    (9th      Cir.    1996);    McMaster    v.

Minnesota, 30 F.3d 976, 980 (8th Cir. 1994).



                                      C.

     Viewing the plain meaning of “volunteer worker” through the

prism of West Virginia’s rules of insurance-policy construction,

we find that Lambert assuredly does not qualify as a “volunteer

worker” under the Policy.

     As the foregoing makes clear, absence of coercion is the

thread uniting the disparate definitions of “volunteer.”                     To be

considered a “volunteer worker,” then, Lambert must have elected

to work of his own volition.               A close look at West Virginia

statutes and the nature of Lambert’s confinement reveals that

his work in the kitchen was anything but voluntary.                          As an

                                      11
initial matter, Lambert conceded that he was obligated to work

at the Jail in some capacity.             The Jail’s policy is wholly

consistent with West Virginia law, which requires inmates to

participate in jail work assignments, W. Va. Code R. § 95-1-

21.3. 3     Because Lambert was compelled to work at the Jail, he

cannot be considered a “volunteer worker” under the Policy. 4

      The     nature     of   incarceration       and       the     jail-inmate

relationship further underscores that Lambert is by no means a

“volunteer worker.”       We have emphasized that, “[b]ecause . . .

inmates     are   involuntarily     incarcerated,         the   [jail]   wields

virtually     absolute   control   over   them   to   a    degree   simply   not

      3
       Appellees argue that a West Virginia regulation, W. Va.
Code R. § 95-1-20.2, gives an inmate like Lambert the option of
volunteering for work assignments.     They mistakenly view this
regulation out of context.     In full, the regulation states,
“Pre-trial and unsentenced detainees shall not be required to
work except to do personal housekeeping.         Any inmate may
volunteer for work assignments or institutional programs.”   Id.
By its very terms, the regulation gives the option of
volunteering for work assignments only to pre-trial and
unsentenced detainees, a class that does not include Lambert.
Indeed, for inmates who have already been sentenced, West
Virginia regulations impose a duty to work. Id. § 95-1-21.3.
      4
       Appellees’ reliance on In re Wissink, 81 P.3d 865 (Wash.
Ct. App. 2003), misses the mark. The court in Wissink held that
an inmate was properly classified as a volunteer where the jail
did not require participation in work assignments, a factor
critical to the court’s conclusion that the inmate “made an
active and reasoned decision to work. . . . [and] was not
coerced or forced to work in contravention of his own will.”
Id. at 869.     In stark contrast to the regime at issue in
Wissink, the Jail required Lambert to work.     Wissink is thus
readily distinguishable.



                                     12
found in the free labor situation of true employment.”                             Harker,

990 F.2d at 133; accord Vanskike, 974 F.2d at 810 (“[T]here is

too much control to classify the [jail-inmate] relationship as

one of employment.”).            Because a volunteer generally enjoys more

freedom than an employee and courts uniformly hold that a jail’s

absolute authority over an inmate precludes a finding that an

inmate is an employee, we have little trouble concluding that an

inmate is not a “volunteer worker.”                      Indeed, Lambert’s thwarted

protest      provides    a     case   study       in     the   coercive    authority       of

jails.       Whereas a volunteer worker under the ordinary meaning of

the    term    would     have    been    free       to    leave    his    shift     at    his

discretion without suffering a concrete penalty, Lambert was put

in    “the    hole”    for    five    days    when       he    refused    to   finish     his

kitchen       shift.      At    bottom,       the       Jail’s    “virtually       absolute

control” over Lambert, Harker, 990 F.2d at 133, which renders

Lambert’s status as a worker something approximating involuntary

servitude, Vanskike, 974 F.2d at 809, yields an impossible fit

between his role and the definition of “volunteer worker.”

       That    Lambert       succeeded   in       his    efforts    to    obtain    a    work

assignment in the kitchen does not undermine his exclusion from

Policy coverage.          To be sure, Lambert submitted an application

to work in the kitchen out of a desire “[t]o eat extra food and

to get out of [his] cell.”                    J.A. 118.           But his ability to

express       an   assignment         preference           does    not     convert        the

                                             13
overarching obligation to work from required to optional.                         See

Burleson, 83 F.3d at 314 (“[P]laintiffs mistakenly equate the

ability to choose between various work programs offered by the

[jail], with the freedom to ‘sell’ their labor.”).                       Had Lambert

failed    to    submit      an   application   or    had    the   Jail   denied   his

request to serve in the kitchen, he still would have been forced

to work in some capacity.              Nor does Lambert’s choice to apply

for   a   job    in   the    kitchen   alter   the     Jail’s     broader    coercive

authority and “virtually absolute control” over him, see Harker,

990 F.2d at 133, factors that we find make Lambert anything but

a “volunteer worker.”



                                        III.

      The      common    and     customary   meaning       of   “volunteer   worker”

forecloses Lambert’s classification as an “insured” under the

Policy.        Accordingly, we reverse the judgment of the district

court and remand for entry of judgment in favor of National

Union.

                                                            REVERSED AND REMANDED




                                         14
