                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-1571


MULVEY CONSTRUCTION,    INCORPORATED;      ONE   BEACON      INSURANCE
COMPANY,

                Plaintiffs – Appellants,

and

DCI/SHIRES, INCORPORATED,

                Intervenor/Plaintiff

           v.

BITUMINOUS CASUALTY CORPORATION;       BROWN     &   BROWN   INSURANCE
AGENCY OF VIRGINIA, INCORPORATED,

                Defendants – Appellees.




Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. David A. Faber, Senior
District Judge. (1:07-cv-00634)


Argued:   January 29, 2014                           Decided:   May 7, 2014


Before DUNCAN, KEENAN, and WYNN, Circuit Judges.


Affirmed in part and vacated in part and remanded by unpublished
opinion.   Judge Wynn wrote the opinion, in which Judge Duncan
and Judge Keenan joined.
ARGUED: Stuart A. McMillan, BOWLES RICE LLP, Charleston, West
Virginia, for Appellants.    Avrum Levicoff, LEVICOFF, SILKO &
DEEMER, PC, Pittsburgh, Pennsylvania; Henry I. Willett, III,
CHRISTIAN & BARTON, LLP, Richmond, Virginia, for Appellees. ON
BRIEF: Thomas M. Hancock, BOWLES RICE LLP, Charleston, West
Virginia, for Appellants.   Pamela C. Deem, KAY CASTO & CHANEY,
PLLC, Charleston, West Virginia, for Appellee Brown & Brown
Insurance Agency of Virginia, Inc.


Unpublished opinions are not binding precedent in this circuit.




                                2
WYNN, Circuit Judge:

        A city utility worker was killed when the trench he was

working in collapsed while he was repairing a sewage line at a

construction site for a McDonald’s restaurant in Bluefield, West

Virginia.       His estate brought a wrongful death action against

the     general      contractor         responsible         for      constructing        the

restaurant,        Mulvey        Construction,       Inc.      (“Mulvey”),        and    its

subcontractor, DCI/Shires (“DCI”).                 In response, DCI’s insurance

company, Bituminous Casualty Corporation (“Bituminous”), refused

to defend and indemnify Mulvey.                    That refusal prompted Mulvey

and its insurer, One Beacon Insurance Company (“One Beacon”), to

bring this action, which requires us to determine the scope of

DCI’s insurance policy from Bituminous.                        In particular, we must

decide    which     state’s       law   applies      to   this      insurance     contract

dispute,      whether   Mulvey       was    covered       by    DCI’s    insurance,      and

whether the applicable statute of limitations bars Mulvey’s and

its insurer’s third-party beneficiary claim.

      For the reasons explained below, we affirm the district

court’s holding that Virginia law controls the contract issue,

that Virginia law does not allow estoppel to extend an insurance

policy’s coverage, and that Appellants’ third-party beneficiary

claim    is    barred       by    the     Virginia    statutes          of    limitations.

However,      we     reverse        the     district        court’s          rejection    of

Appellants’        insured       contract    and   duty        to   defend     claims    and

                                             3
remand    this     matter        to        the        district    court        for    further

consideration.




                                                 I.

       In May 2002, DCI, a Virginia corporation, applied for a

renewal insurance policy with Bituminous through Brown & Brown

Insurance Agency (“Brown”), a Virginia insurance agency.                                  DCI

had a Virginia post office box as its mailing address, but DCI’s

physical office was in Bluefield, West Virginia.                                   Bituminous

issued DCI’s renewal policy, which was effective from May 20,

2002 to May 20, 2003.            Although Bituminous’s headquarters is in

Illinois, the policy identified its Richmond, Virginia branch

office as the location for “the insurance company issuing this

insurance”     and     referred            inquiries       to    the     Virginia       State

Corporation Commission’s Bureau of Insurance.                        J.A. 50.

       In July 2002, Mulvey entered into a subcontract agreement

with   DCI   for   a   portion        of    the       construction      of     a   McDonald’s

restaurant in Bluefield, West Virginia.                          Under the subcontract

agreement,    DCI      agreed         to     list       Mulvey    and        McDonald’s    as

additional    insureds      on    its       insurance       policy      with       Bituminous.

To satisfy this requirement, DCI sent the subcontract agreement

to Brown.    In July and August 2002, Brown issued certificates of

insurance    stating    that      Mulvey          and    McDonald’s      were      additional

                                                 4
insureds    on    DCI’s    insurance      policy       with    Bituminous.       The

certificates of insurance also stated that “THIS CERTIFICATE IS

ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS

UPON THE CERTIFICATE HOLDER.              THIS CERTIFICATE DOES NOT AMEND,

EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.”

J.A. 44, 259-64.       DCI’s insurance policy was not amended to add

Mulvey and McDonald’s as additional insureds.                   In October 2002,

Brown sent a copy of the insurance policy to DCI.

      In January 2003, a city employee was attempting to repair a

pipe next to the McDonald’s restaurant when the trench he was in

collapsed and killed him.           His estate sued McDonald’s, Mulvey,

and DCI for wrongful death, alleging that the retaining wall at

the McDonald’s had been negligently constructed.                        Mulvey and

McDonald’s requested that Bituminous defend them in the wrongful

death action.        Bituminous refused, stating that neither Mulvey

nor   McDonald’s     was   an    additional         insured    on   DCI’s    policy.

Mulvey   and     McDonald’s     settled       the   wrongful    death    suit,   and

Mulvey’s insurer, One Beacon, paid the settlement on behalf of

McDonald’s and Mulvey.

      Appellants Mulvey and One Beacon initiated an arbitration

action against DCI in New York asserting indemnification and

breach of contract claims.             In 2007, Appellants brought this

action     against    Bituminous    and        Brown    seeking     a   declaratory

judgment that Mulvey was entitled to coverage from Bituminous

                                          5
for the underlying action and payment of settlements and legal

fees.     The complaint (and later the amended complaint) included

a breach of contract claim against Bituminous, an estoppel claim

against       Bituminous       and    Brown,          and    a     third-party         beneficiary

claim against Brown.             Bituminous moved for summary judgment on

these claims.            The    district          court      addressed         these    claims    in

separate       summary     judgment          orders          during      the     case    and     the

district court’s conclusion of each of these individual claims

did not resolve the other claims.

        The    district    court          ruled       that    Virginia      law    applied       and

granted       Bituminous       summary      judgment          on    Appellants’         breach    of

contract        claim.           However,             the     district          court      allowed

supplemental       briefing          on    the     estoppel         and     insured       contract

claims under Virginia law.                  Mulvey and One Beacon had originally

conceded that the insurance contract was formed in Virginia,

but,     after    the     district         court       granted          summary    judgment       to

Bituminous on the breach of contract claim, moved to amend the

judgment arguing that the policy was issued in West Virginia.

The district court ordered them to offer evidence supporting

their    change    of     view    on       the    location         of    contract       formation.

Appellants provided affidavits stating that a DCI employee was

assigned to gather mail from DCI’s Virginia post office box and

carry it to the offices in West Virginia.                                 The district court



                                                  6
reaffirmed its earlier ruling that Virginia law governed the

case.

      Brown also moved for summary judgment on Appellants’ third-

party beneficiary claim, arguing that the claim was barred by

the   statute    of    limitations.          The       district     court    agreed     and

granted summary judgment to Brown.

      The     district    court       also       granted        summary     judgment     to

Bituminous on Appellants’ estoppel claim and held that Virginia

law   does    not     allow    estoppel      to        extend    insurance        coverage,

especially where the disclaimer language in the certificates was

“clear and unambiguous[.]”             J.A. 625-28.             However, the district

court stayed the case pending completion of the ongoing New York

arbitration     before    considering            the    insured     contract       theory. 1

After     Appellants     dismissed      the       New     York     arbitration,        they

renewed      their    motion    for    summary          judgment     on     the    insured

contract theory.         The district court rejected the theory and

granted summary judgment to Bituminous.                         Mulvey and One Beacon

timely appealed these rulings.


      1
       The amended complaint does not contain an insured contract
claim as one of the specified counts.       However, the amended
complaint sought a declaration that “Mulvey’s subcontract
agreement with [DCI] is an insured contract under DCI’s
Bituminous policy so that Mulvey stands in the shoes of DCI for
coverage purposes” and that “Bituminous owes Mulvey a duty to
indemnify and defend it as an additional insured with an insured
contract on its policy of insurance covering DCI . . . .” J.A.
197.


                                             7
                                          II.

       First, Appellants argue that the district court erred in

ruling that Virginia law, rather than West Virginia law, applied

in this case.         Second, Appellants argue that the district court

erred in holding that estoppel did not apply and that Mulvey

could not rely on the certificates of insurance to establish

coverage under DCI’s insurance policy.                   Third, Appellants argue

that     the    district    court    erred       in    rejecting    their    insured

contract theory; namely, that the subcontract between Mulvey and

DCI did not trigger a duty to defend requiring Bituminous to

defend      Mulvey    and   McDonald’s     in    the    wrongful    death    action.

Finally,       Appellants    argue    that      the    district    court    erred    in

applying Virginia’s statute of limitations and granting summary

judgment on the third-party beneficiary claims to Bituminous.

We address each issue in turn.




                                          III.

       We    review    de   novo    the   district      court’s    choice    of     law

determination.        See Salve Regina Coll. v. Russell, 499 U.S. 225,

231–34 (1991).          When a district court is considering a case

based on diversity jurisdiction, the court must apply the forum

state’s conflict of laws rules.                  Klaxon Co. v. Stentor Elec.

                                           8
Mfg. Co., 313 U.S. 487, 496 (1941).          Here, the forum state is

West Virginia; thus, West Virginia’s choice of law principles

must be applied.

     In West Virginia, generally, the law of the state where an

insurance contract was formed governs contract disputes:

     “In a case involving the interpretation of an
     insurance policy, made in one state to be performed in
     another, the law of the state of the formation of the
     contract shall govern, unless another state has a more
     significant relationship to the transaction and the
     parties, or the law of the other state is contrary to
     the public policy of this state.”

Joy Tech., Inc. v. Liberty Mut. Ins. Co., 421 S.E.2d 493, 496

(W. Va. 1992) (quoting Liberty Mut. Ins. Co. v. Triangle Indus.,

Inc., 390 S.E.2d 562, 563 (W. Va. 1990)).            We thus begin our

inquiry with an examination of where the pertinent contract was

formed.

                                    A.

     Under West Virginia law, “[a] contract is made at the time

when the last act necessary for its formation is done, and at

the place where the final act is done.”              Carper v. Kanawha

Banking   &   Trust   Co.,   207   S.E.2d   897,   901   (W.   Va.   1974)

(syllabus, pt. 8) 2 (citing Restatement of Contracts § 74 (1932));


     2
       “Pursuant to West Virginia’s Constitution, the Supreme
Court of Appeals of West Virginia articulates new points of law
through its syllabus.”   Hoschar v. Appalachian Power Co., 739
F.3d 163, 174 n.5 (4th Cir. 2014) (citing Walker v. Doe, 558
S.E.2d 290, 296 (2001)).


                                    9
see also Tow v. Miners Mem’l Hosp. Ass’n, 305 F.2d 73, 75 (4th

Cir. 1962) (“Examining [West Virginia] law, we find that the

contract here in question was made in New York because there the

last event occurred necessary to make a binding agreement[.]”).

       The West Virginia Supreme Court has observed that “[a]n

insurance contract, similar to other contracts, ‘is an offer and

acceptance supported by consideration.’                    . . . The application

for insurance is the offer, which the insurer then decides to

accept, reject or modify.            The insurer then issues a policy or

certificate of insurance that evidences the insurance contract.”

Keller v. First Nat’l Bank, 403 S.E.2d 424, 427 n.5 (W. Va.

1991) (quoting Warden v. Bank of Mingo, 341 S.E.2d 679, 682

(1985)).     Therefore, where a party has made an offer to the

insurance    company       by   applying      for    insurance,    the    insurance

company’s issuance of the policy constitutes its acceptance.

       Appellants      argue      that     the      district   court      erred   in

concluding that Virginia law governs the case.                      Specifically,

they    contend     that    the    insurance        contract   between     DCI    and

Bituminous was formed in West Virginia because DCI’s principal

office is located there.            Appellants contend that DCI accepted

the    contract   in   West     Virginia    when     the   insurance     policy   was

opened in DCI’s West Virginia office or when the premium check

was signed in DCI’s West Virginia office.                  We disagree.



                                         10
       Under        West     Virginia       law,      DCI’s      renewal     application

constituted         the    offer    to   create     the    insurance     contract.     In

response,       Bituminous          issued      the       insurance      policy,     thus,

accepting DCI’s offer.               At that point, the contract was formed

according to West Virginia law.                   Neither the opening of the copy

of the policy in DCI’s West Virginia’s office nor the first

premium payment constituted the final act of contract formation.

The issuance of the policy from Bituminous’s Virginia branch

office represented Bituminous’s acceptance of DCI’s offer, the

last   act     necessary       to    form    the      insurance       contract.      Thus,

Virginia law applies—unless another state has a more significant

relationship or Virginia’s law contravenes West Virginia public

policy.



                                             B.

       Regarding          whether   another       state    has   a    more   significant

relationship to the transaction and parties than Virginia, the

West    Virginia          Supreme   Court     has     looked     to    the   Restatement

(Second)       of    Conflict       of   Laws      and     identified      several   non-

exclusive factors for courts to consider:

       (a) the needs of the interstate and international
       systems,
       (b) the relevant policies of the forum,
       (c) the relevant policies of other interested states
       and the relative interests of those states in the
       determination of the particular issue,
       (d) the protection of justified expectations,

                                             11
       (e) the basic policies underlying the particular field
       of law,
       (f)   certainty,   predictability and   uniformity  of
       result, and
       (g) ease in the determination and application of the
       law to be applied.

Triangle, 390 S.E.2d at 567.           The West Virginia Supreme Court

placed great emphasis on uniformity and predictability, holding

that

       “certainty, predictability and uniformity of result,”
       as well as “ease in the determination and application
       of the law to be applied” is essential to the
       interpretation of an insurance policy when the law is
       not otherwise chosen by the parties. Given the
       increasingly complex nature of the insurance industry,
       we believe that the needs of the “interstate” system
       of insurance require that law be applied in the most
       uniform and predictable manner possible.

Id.      The      Court   also    looked    to    the     parties’       reasonable

expectations,        examining     whether        “the     insurance         company

demonstrated       any    reasonable   expectation         at    the     time    the

contracts were entered into that any litigation over the policy

would be based upon West Virginia law.”             Id.

       The West Virginia Supreme Court discussed the significant

relationship prong in Joy Technologies, Inc. v. Liberty Mutual

Insurance Company, 421 S.E.2d 493 (W. Va. 1992).                      In that case,

a company that cleaned and repaired mining machinery in West

Virginia polluted West Virginia property.                 The company was sued

for    property    damage   and   personal       injuries,      and    the   insurer




                                       12
argued that an exclusion applied.              Joy, 421 S.E.2d at 493-96.

Crucial to the exclusion issue was what state’s law applied.

     The    West   Virginia    Supreme      Court    recognized    the    Triangle

precedent    and   identified    factors       that      weighed   in    favor   of

applying    the    law   of     the    state        of    contract      formation—

Pennsylvania.      Id. at 496.        However, the Court ultimately was

persuaded to apply West Virginia law because of the nature of

the suit.     The West Virginia Supreme Court’s reasoning focused

on the nature of the suit—toxic pollution—and its close link to

location:

     [t]he action in the present case arises out of the
     expenditures of monies for remediating damage caused
     by pollution to property in West Virginia, and it is
     rather clear that the pollution arose from operations
     which were conducted in West Virginia and involved a
     facility located in West Virginia.   Thus, the injury
     occurred in West Virginia, the instrumentality of
     injury was located in West Virginia, and the forum
     selected to try the issues was West Virginia.   These
     factors suggest that West Virginia has had a very
     significant relationship to the transaction and the
     parties. In fact, the relationship would appear to be
     more substantial than that of Pennsylvania, where the
     contract was formed.

Id. at 496-97.       For its reasoning, the West Virginia Supreme

Court looked to a New Jersey pollution case, in which the New

Jersey Appellate Division held that New Jersey law controlled a

dispute    about   insurance    “purchased      to    cover   an   operation     or

activity, wherever its principal location, which generates toxic

wastes that predictably come to rest in New Jersey[.]”                     Gilbert


                                       13
Spruance Co. v. Pa. Manufacturers’ Ass’n Ins. Co., 603 A.2d 61,

65 (N.J. App. Div. 1992).                Similarly, the Joy court decided

against    applying       Pennsylvania        law   because        Liberty      Mutual’s

position    regarding        the       exclusion      of       coverage        would     be

“inconsistent with, and contrary to, the public policy of [West

Virginia].”       Id. at 497.

     Appellants argue that under Joy, West Virginia law must

apply.     Specifically,         Appellants       claim    that,     as   in    Joy,    the

location and instrumentality of the injury was in West Virginia

and the forum selected to try the issues was West Virginia.                            Yet

we find Joy easily distinguishable.

     It is hard to imagine cases with stronger local ties than

environmental cases in which toxic pollution has occurred and

local interests in remediation and compensation are paramount.

But environmental         harm   and    pollution        are   not   at   issue      here.

Rather,    this    case     involves     a    commercial       liability       insurance

contract that covers DCI’s construction work in multiple states.

Although   the     tragic    accident        in   this    case     occurred     in     West

Virginia and killed a citizen of that state, the West Virginia

Supreme Court has downplayed the importance of injury location

compared to the place of contract formation.                          See Nadler v.

Liberty Mut. Fire Ins. Co., 424 S.E.2d 256, 262 (W. Va. 1992);

Lee v. Saliga, 373 S.E.2d 345, 352 (W. Va. 1988); see also Howe

v. Howe, 625 S.E.2d 716, 723 (W. Va. 2005) (affirming the lower

                                             14
court’s finding that Ohio had a more significant relationship to

the parties and transactions because the “only relationship West

Virginia [had] to the parties or transactions at issue [was] the

‘mere fortuity’ that the accident at issue occurred” there);

Johnson v. Neal, 418 S.E.2d 349, 351 (W. Va. 1992) (per curiam)

(“In    the    present      case,     the    insurance        policy     was    issued    in

Virginia by a Virginia company to a Virginia resident.                                  West

Virginia’s relationship to the transaction based on the situs of

the    accident      and    the    residence      of    the   uninsured        motorist   is

minor.”).

       In addition, the reasonable expectation of the parties to

the contract must be considered.                   The parties to the insurance

contract included Bituminous, an Illinois corporation operating

out of a Virginia branch office, DCI, a Virginia corporation

that    used    Brown,      a     Virginia    insurance       agent,     to    secure     the

renewal insurance contract.                  Although the construction project

and    accident      were    in    West   Virginia,         the   centerpiece      of   this

litigation      is    the       interpretation         of   the   insurance      contract,

which was formed in Virginia.                Thus, the parties to the contract

reasonably should have expected that Virginia law would apply.

In sum, “certainty, predictability and uniformity of result” and

“ease in the determination and application of the law to be

applied”       strongly      support      the     application       of   Virginia       law.

Triangle, 390 S.E.2d at 567.                    And we agree with the district

                                             15
court     that   West   Virginia    did    not    have   a    more   significant

relationship to the transaction or parties than Virginia.




                                      C.

     The third element of the conflict of law analysis requires

the court to determine whether Virginia law is contrary to West

Virginia’s public policy.          This Circuit has recognized that West

Virginia’s public policy exception “is necessarily a narrow one,

to be invoked only in extraordinary circumstances.”                      Yost v.

Travelers Ins. Co., 181 F.3d 95, at *6 (4th Cir. June 21, 1999)

(unpublished     but    orally   argued).        The   West   Virginia    Supreme

Court has recognized that “[t]he mere fact that the substantive

law of another jurisdiction differs from or is less favorable

than the law of the forum state does not, by itself, demonstrate

that application of the foreign law under recognized conflict of

laws principles is contrary to the public policy of the forum

state.”     Nadler, 424 S.E.2d at 258 (syllabus pt. 3).                  The West

Virginia Supreme Court instructed lower courts not to refuse to

apply foreign law “unless the foreign law is contrary to pure

morals or abstract justice, or unless enforcement would be of

evil example and harmful to [West Virginia’s] own people.”                    Id.

at 265 (quotation marks omitted).



                                      16
     Appellants          argue      that      applying      Virginia       law     would      be

contrary to West Virginia’s public policy, and they assert a

variety      of        policy     considerations            including:        1)     “quickly

determining which insurance is primary,” 2) “encourag[ing] the

resolution        of    controversies         by     contracts       of    compromise       and

settlement,”       3)     “regulating         insurance      practices      in     regard     to

West Virginia residents, West Virginia accidents, and how people

in   West    Virginia         are      treated;”      and    4)     “hold[ing]       insurers

accountable        in    a      court    of    law    when     they       wrongfully        deny

coverage” and enforcing indemnity agreements.                             Appellants’ Br.

at 22-24.

     Appellants          made     no     public      policy       arguments      before      the

district court.           J.A. 392 (“[T]he court does not find (nor do

plaintiffs argue) that the law of Virginia is contrary to the

public      policy      of    West      Virginia.”).           In    any    event,         their

arguments      are      unavailing.            Appellants         have    not      shown    how

Virginia’s public policy differs on any of these grounds or how

Virginia’s law is “contrary to pure morals or abstract justice.”

Nadler, 424 S.E.2d at 265 (quotation marks omitted).

     Consequently, Appellants have failed to show that we should

depart    from     the       default     rule       that    the     contract       should    be

governed by the laws of Virginia—the state of formation.                                    West

Virginia does not have a more significant relationship to the

transaction, and Virginia law is not contrary to West Virginia

                                               17
public policy.        Therefore, we affirm the district court’s choice

of law determination.




                                            IV.

      With    their         next     argument,        Appellants        contend     that

Bituminous should be estopped from refusing to defend Mulvey and

McDonald’s      in    the    wrongful       death    suit    because    Brown     issued

certificates     of    insurance          stating    that    Mulvey    and    McDonald’s

were additional insureds on DCI’s policy with Bituminous.                             We

review the district court’s grant of summary judgment de novo.

FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013).

      Under Virginia law, a party seeking to invoke the doctrine

of   estoppel    must       prove    by     “clear,    precise,       and    unequivocal

evidence” the following elements:

      (1) A material fact was falsely represented or
      concealed; (2) The representation or concealment was
      made with knowledge of the fact; (3) The party to whom
      the representation was made was ignorant of the truth
      of the matter; (4) The representation was made with
      the intention that the other party should act upon it;
      (5) The other party was induced to act upon it; and
      (6) The party claiming estoppel was misled to his
      injury.

Boykins Narrow Fabrics Corp. v. Weldon Roofing and Sheet Metal,

Inc.,   266   S.E.2d        887,    890    (Va.     1980).     Crucially,      however,

Virginia precedent reflects that estoppel may not be used to

extend the coverage of an insurance contract.                          Norman v. Ins.

                                             18
Co. of N. Am., 239 S.E.2d 902, 908 (Va. 1978) (“The general

rule, which we approve, is that the coverage of an insurance

contract may not be extended by estoppel or implied waiver to

include risks expressly excluded.”) (quoting Sharp v. Richmond

Life Ins. Co., 183 S.E.2d 132, 135 (Va. 1971)).

        In   Norman,     the      Virginia      Supreme       Court    referred        to   two

automobile insurance cases where the insurance companies filed a

form    stating      that    “its      policy     was    in    force     and    effect      and

covered the driver[s],” but the Virginia Supreme Court found

that these statements “did not estop the company from denying

coverage when in fact there was no coverage.”                            Id. (citing Va.

Farm Bureau Mut. Ins. Co. v. Saccio, 133 S.E.2d 268 (1963) and

Va. Mut. Ins. Co. v. State Farm Mut. Auto. Ins. Co., 133 S.E.2d

277    (1963)).        However,        the   Virginia         Supreme    Court       has    not

squarely addressed whether an insurance company is estopped from

denying      coverage       in    a    situation     such      as     this     case:    where

certificates of insurance have been issued stating that third

parties were added as additional insureds on the policy, but

where    the     third      parties      were     never       actually       added     to   the

underlying insurance policy.

        Courts    around         the   country     are    split       regarding        whether

insurers       can     be    estopped        from       denying       coverage       when     a

certificate of insurance that identified a third party as an

additional insured has been issued.                     Some courts have deemed the

                                             19
insurer estopped from denying coverage.                   See, e.g., Sumitomo

Marine & Fire Ins. Co. of Am. v. S. Guar. Ins. Co. of Ga., 337

F. Supp. 2d 1339, 1355 (N.D. Ga. 2004); Blackburn, Nickels &

Smith v. Nat’l Farmers Union, 482 N.W.2d 600, 604 (N.D. 1992).

Significantly, West Virginia is one of the states that has held

that    “a     certificate   of   insurance    is     evidence    of   insurance

coverage” and that

       because a certificate of insurance is an insurance
       company’s written representation that a policyholder
       has certain insurance coverage in effect at the time
       the certificate is issued, the insurance company may
       be estopped from later denying the existence of that
       coverage when the policyholder or the recipient of a
       certificate has reasonably relied to their detriment
       upon a misrepresentation in the certificate.

Marlin v. Wetzel Cnty. Bd. of Educ., 569 S.E.2d 462, 472-73 (W.

Va. 2002).

       Other    courts,   however,   have     held   that   a    certificate    of

insurance      that   expressly   states    that     it   does   not   alter   the

coverage of the underlying policy will not be deemed to change

the policy.       In such states, therefore, a party may not rely on

estoppel to assert that it is covered under the policy.                        See

e.g., Mountain Fuel Supply v. Reliance Ins. Co., 933 F.2d 882,

889 (10th Cir. 1991); T.H.E. Ins. Co. v. City of Alton, 227 F.3d

802, 806 (7th Cir. 2000); TIG Ins. Co. v. Sedgwick James of

Washington, 184 F. Supp. 2d 591, 597-98 (S.D. Tex. 2001); G.E.




                                      20
Tignall & Co., Inc. v. Reliance Nat. Ins. Co., 102 F. Supp. 2d

300, 304 (D. Md. 2000).

       Here,     the    district          court    cited       Norman    in    holding     that,

under Virginia law, the certificates of insurance could not be

relied upon to establish coverage, particularly given that the

certificates included such a “clear and unambiguous” disclaimer.

J.A.     628.         The     district       court,          therefore,       concluded    that

Bituminous was not estopped from denying coverage.

       The     certificates          of    insurance          included    the     direct    and

specific disclaimer that the certificates are provided as “A

MATTER    OF     INFORMATION         ONLY     AND       CONFERS    NO     RIGHTS    UPON    THE

CERTIFICATE HOLDER.             THIS CERTIFICATE DOES NOT AMEND, EXTEND OR

ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.”                                 J.A. 44,

259-64.         We,     like       the    district       court,     must       conclude     that

Virginia would not recognize the use of estoppel to change the

policy in the circumstances of this case.                           We find instructive

not only Norman, but also Blue Cross and Blue Shield of Virginia

v. Wingfield, 391 S.E.2d 73 (Va. 1990).                                 In that case, the

Virginia        Supreme        Court       directly          rejected     the     plaintiff’s

estoppel claim, which was based on a brochure that the insurance

company      sent      to    him    outlining          the    policy’s     benefits.        The

brochure included a clear disclaimer that the brochure was not a

contract and that the provisions of the contract governed any

discrepancies.              Wingfield, 391 S.E.2d at 74.                   The trial court

                                                  21
granted    Wingfield     damages    “because     of    the       difference    in   the

language in the brochure furnished [Wingfield] and that in the

contracts.”        Id.    (alteration     in    original)         (quotation    marks

omitted).    The Virginia Supreme Court disagreed, holding that

     the trial court’s application of the doctrine of
     estoppel, requiring payment of benefits beyond the
     limited contractual time, extended coverage to include
     risks not covered by the policy. In doing so, the
     court erroneously brought “into being a contract of
     insurance where there was none.”

Id. at 75 (quoting Norman, 239 S.E.2d at 908).                        Guided by the

Virginia Supreme Court’s rulings in Norman and Wingfield, we

hold that the district court did not err in refusing to apply

estoppel to extend this insurance policy’s coverage beyond its

terms.




                                        V.

     With    their    next    argument,      Appellants      claim     that    summary

judgment was inappropriate because, even if Mulvey was not an

additional    insured,       Bituminous      still    had    a    duty,   under     the

policy’s    insured      contract   provision,        to    defend     them    in   the

wrongful death litigation.

     Specifically,       DCI’s   insurance      policy      states     that    damages

arising     from   DCI’s     contractual       assumption        of   liability     are

excluded.     But that exclusion does not apply to liability for


                                        22
damages      “[a]ssumed      in   a   contract    or    agreement     that   is   an

‘insured contract’, . . . .”                J.A. 105.         The policy defines

insured      contract   as    “[t]hat     part   of     any   other   contract    or

agreement pertaining to your business . . . under which [DCI]

assume[s] the tort liability of another party to pay for ‘bodily

injury’ or ‘property damage’ to a third person or organization.”

J.A. 115.      In the subcontract between DCI and Mulvey, DCI agreed

to

       indemnify and hold harmless . . . [Mulvey] . . . from
       and against all claims, damages, losses and expenses,
       including but not limited to attorney’s fees, arising
       out of or arising from performance of [DCI’s] Work
       under this Agreement, provided such claim . . . is
       attributable to bodily injury, sickness, disease or
       death[,] or to injury to or destruction of tangible
       property . . . including the loss of use resulting
       therefrom, to the extent caused in whole or part by
       any neglect act or omission of [DCI] . . . regardless
       of whether it is caused in part by a party indemnified
       hereunder.

J.A.   41.      Appellants        argue   that   this    provision    renders     the

subcontract an insured contract because DCI assumed the tort

liability of Mulvey.

       Assuming for the sake of argument that the subcontract was

an insured contract, we nevertheless agree with the district

court that the indemnitee, Mulvey, was not entitled to coverage

under the insurance policy because no language added Mulvey as

an additional insured or as a third-party beneficiary.




                                          23
       Appellants attempt to rely on Uniwest Construction, Inc. v.

Amtech       Elevator     Services,        Inc.,      699     S.E.2d    223     (Va.     2010),

withdrawn in part on reh’g, 714 S.E.2d 560 (Va. 2011).                                  In that

case,    a    general     contractor,        Uniwest,         engaged        subcontractors,

including Amtech, to assist in building renovation work.                                      The

subcontract required Amtech to name Uniwest as an additional

insured under its liability insurance policies.                              Id. at 225-26.

The pertinent policy included as an insured “[a]ny person . . .

to   whom     you   are    obligated       by    a    written       Insured        Contract   to

provide insurance such as is afforded by this policy but only

with    respect     to    .   .    .   liability        arising        out    of    operations

conducted by you or on your behalf . . . .”                                    Id. at 226.

Amtech’s insurer refused to defend and indemnify Uniwest in a

suit    by    the   estate        of   a   deceased         employee     and       an   injured

employee.       The Virginia Supreme Court held that the insurer was

required to defend and indemnify Uniwest, not merely because the

subcontract between the parties required Amtech to defend and

indemnify Uniwest.            Importantly, the Court found that Amtech’s

policy contained language sufficient to make Uniwest (and any

similarly       situated      contracting            party)    an    additional         insured

under the policy as well.              Id. at 232.

       Here, the district court reviewed Uniwest and acknowledged

that, as in Uniwest, the subcontract required DCI to indemnify

Mulvey.       However, the district court underscored “the critical

                                                24
difference between the two policies at issue: under [the Uniwest

policy] any person to whom the insured becomes obligated under

an Insured Contract becomes an additional insured . . . .                                     The

Bituminous      Policy       has        no    similar      provision.”             J.A.      713.

Although we must agree with this analysis, we conclude that it

is incomplete.

       Notably, the district court did not address the insurance

policy’s Supplementary Payments section.                          Although that section

does   not   make     Mulvey       an    additional        insured,        it   states    that:

“[i]f [Bituminous] defend[s] an insured against a ‘suit’ and an

indemnitee      of    the    insured         is    also   named       as   a    party   to    the

‘suit’, we will defend that indemnittee if all of the following

conditions      are    met[.]”          J.A.      110.     The    requisite        conditions

include, among others: “the insured has assumed the liability of

the    indemnitee       in    .     .    .     an      ‘insured       contract’;”       “[t]his

insurance applies to such liability assumed by the insured;”

“the obligation to defend . . . that indemnitee[] has also been

assumed by the insured in the same ‘insured contract[.]’”                                    J.A.

110-11.      If      these   conditions            have   been    met,     then    Mulvey      is

entitled to Bituminous’s defense and the district court’s grant

of    summary     judgment     to       Bituminous        was    in    error     because      the

insurance company would not be entitled to judgment as a matter

of law.



                                                  25
     Based on the record before us, it appears that at least

some of these conditions may be met.        Under these circumstances,

we cannot affirm the district court’s grant of summary judgment

without   the   benefit   of   its   analysis    of    a   directly   relevant

section   of    the   insurance   policy.       We    therefore   vacate   the

district court’s summary judgment order on the insured contract

theory and remand with specific instructions to the district

court to address whether the requirements of this provision have

been met and whether, specifically taking the provision into

consideration, Bituminous had a duty to defend Mulvey in the

underlying lawsuit.




                                     VI.

     Finally, Appellants contend that West Virginia’s, and not

Virginia’s, statute of limitations applies and that the district

court erred by dismissing their third party beneficiary claim on

the basis of Virginia’s shorter statute of limitations period. 3

Appellants contend that the certificates of insurance that Brown

     3
       Appellants also contend that the district court abused its
discretion by allowing Brown to untimely amend its answer to
include a statute of limitations defense.     Appellants’ Br. at
51-52.   However, upon close review, we reject the appellants’
claim and find that the district court did not abuse its
discretion when it ruled that appellants had failed to show any
prejudice arising from the district court’s decision to grant
Brown leave to amend its answer. See J.A. 582-87.


                                     26
sent to DCI qualify as a written contract between Brown and DCI

to add Mulvey to the Bituminous policy.

       West Virginia has a five-year statute of limitations for

oral contracts and a ten-year statute of limitations for written

contracts.         W. Va. Code § 55-2-6.           By contrast, Virginia has a

three-year statute of limitations for oral contracts and a five-

year statute of limitations for written contracts.                        Va. Code §

8.01-246(2), (4).

       Notably,      however,      West    Virginia     has   what   is   known    as    a

borrowing statute.          It provides that “[t]he period of limitation

applicable to a claim accruing outside of this State shall be

either that prescribed by the law of the place where the claim

accrued or by the law of this State, whichever bars the claim.”

W.    Va.   Code    §    55-2A-2.         Appellants’    third-party      beneficiary

claim is premised on Brown’s alleged failure to add Mulvey as an

additional insured on DCI’s policy.                Appellants have not alleged

that Brown, a Virginia insurance agent, breached an agreement to

add Appellants to the insurance policy in a different state than

where Brown conducts its business, Virginia.                         By operation of

the    borrowing        statute,    then,     Virginia’s      shorter     statute       of

limitations applies here.

       The district court deemed any contract between Brown and

DCI to add Mulvey to the Bituminous policy oral and barred by

the   statute      of    limitations.        The   Virginia     Supreme    Court    has

                                             27
recognized that for a contract to qualify as a written contract

for statute of limitations purposes, the contract “must . . .

show on its face a complete and concluded agreement between the

parties.”       Newport News, H. & O. P. Dev. Co. v. Newport News St.

Ry. Co., 32 S.E. 789, 790 (Va. 1899).                Here, on their face, the

certificates of insurance do not represent a written contract.

Rather, they state that they were issued for “INFORMATION ONLY”

and    specifically       “CONFER[RED]    NO    RIGHTS    UPON    THE    CERTIFICATE

HOLDER.”        J.A. 44, 259-64.         We agree with the district court

that    if   there       was   any   contract    requiring       Brown    to    obtain

insurance, then it was an oral contract and thus, the three-year

statute of limitations under Virginia law applied.

       Further, even assuming for the sake of argument that the

contract was written and that the longer statute of limitations

applied, this claim would still be barred under Virginia law.

Any breach of that contract occurred no later than August 2002

because      the     final     certificate      of     insurance—the         contract

Appellants assert required their being insured by Bituminous—was

issued on August 9, 2002, and yet Appellants were never added to

the insurance.           But Appellants did not bring the third-party

beneficiary claim until October 11, 2007—after more than five

years     had    passed.         Under   Virginia        law,    the     statute    of

limitations accrues on the date of breach, not the date of the

resulting       damage    is   discovered.       Va.     Code    Ann.    §     8.01-230

                                         28
(“[T]he      right    of    action       shall    be    deemed        to    accrue       and    the

prescribed limitation period shall begin to run from the date

the injury is sustained in the case of injury to the person or

damage     to     property,     when      the    breach        of    contract       occurs      in

actions      ex    contractu       and    not    when     the       resulting       damage      is

discovered[.]”).            Thus, the third party beneficiary claim would

be barred by the statute of limitations, even assuming that the

longer, written-contract statute applied.

      In     response,       Appellants         argue    that       Virginia       law    allows

tolling of the statute of limitation when a defendant misleads a

plaintiff into delayed filing.                   And indeed, the Virginia Supreme

Court      has     recognized       tolling       in     the        face     of    affirmative

misrepresentation:

      “Mere silence by the person liable is not concealment,
      but   there   must   be   some   affirmative  act   or
      representation designed to prevent, and which does
      prevent, the discovery of the cause of action.
      Concealment of a cause of action preventing the
      running of limitations must consist of some trick or
      artifice preventing inquiry, or calculated to hinder a
      discovery of the cause of action by the use of
      ordinary diligence, and mere silence is insufficient.
      There must be something actually said or done which is
      directly intended to prevent discovery.”

Newman     v.     Walker,    618    S.E.    2d    336,    338        (Va.    2005)    (quoting

Culpeper Nat’l Bank v. Tidewater Improvement Co., 89 S.E. 118,

121   (Va.       1916)).      But    Appellants         have        failed    to    show       that

Appellees took any affirmative actions to meet this bar.



                                             29
     Appellants also argue that Virginia law allows for tolling

“when the failure to procure insurance claim was submitted to

arbitration.”         Appellants’      Reply    at   27.       However,    the

arbitration    proceedings     began    in   2006,   after   the   applicable

three-year statute of limitations for oral contracts expired in

August 2005.       Thus, Appellants’ statute of limitations arguments

fail,   and   we    affirm   the   district     court’s    grant   of   summary

judgment to Brown on the third-party beneficiary claim.




                                     VII.

     For the foregoing reasons, we affirm in part and vacate in

part the judgment of the district court and remand for further

proceedings.



                                                           AFFIRMED IN PART
                                               VACATED IN PART AND REMANDED




                                       30
