                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 08-1535


BARBARA REESE,

                 Plaintiff,

          and

BRIAN BIRO,

                 Defendant – Appellant,

          v.

ALEA LONDON LIMITED,

                 Defendant - Appellee.



                              No. 08-1536


BARBARA REESE,

                 Plaintiff - Appellant,

          v.

ALEA LONDON LIMITED,

                 Defendant - Appellee,

          and

BRIAN BIRO,

                 Defendant.
Appeals from the United States District Court for the District
of South Carolina, at Columbia.       Cameron McGowan Currie,
District Judge. (3:07-cv-01402-CMC)


Submitted:   April 22, 2009                      Decided:    May 22, 2009


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


Affirmed by unpublished per curiam opinion.


Claude E. Hardin, Jr., James B. Richardson, Jr., Palmer Freeman,
Jr., Columbia, South Carolina, for Appellants.         Peter H.
Dworjanyn, COLLINS & LACY, P.C., Columbia, South Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                   2
PER CURIAM:

            These     appeals      arise       from     a     Complaint     filed     by

Appellant Barbara Reese against Appellant Brian Biro in a South

Carolina Court of Common Pleas.                The Complaint alleged that Biro

was hired to conduct a training seminar for the employees of the

company   where     Reese   was    employed.          During    the     seminar,    Biro

importuned Reese to break a wooden board with her bare hands.

After Reese failed on her first two tries, Biro brought Reese

before the assembled group of 200 to 300 of her coworkers and

told her that she must try again.                     Reese protested, but was

strongly encouraged to participate in the demonstration by Biro,

who led the assembled group to chant Reese’s name until she

agreed to a final attempt.           As a result of this third attempt,

Reese suffered severe injuries and nerve damage to her hand,

requiring medical care and resulting in long-term impairment.

            Biro    admitted      liability       for       Reese’s     injuries,    but

contended that Appellee Alea London Ltd. (“Alea”) had issued a

commercial    liability     policy    to       him    (“the    Policy”),     which    he

asserted covered Reese’s injury.                The Policy provided liability

coverage for “bodily injury” caused by an “occurrence.”                              The

Policy    contained    several     exclusions,          limiting      the   extent    of

Biro’s    coverage.          The     first        exclusion        at     issue     here

(“Participants Exclusion”) reads, in pertinent part:



                                           3
     EXCLUSION - PARTICIPANTS

     This Insurance does not apply to “bodily injury,”
     “personal injury” or medical payments to “any person”
     while practicing for or participating in any circus,
     concert,   demonstration,   event,  exhibition,   race,
     rodeo, show, contest or any activity of an athletic or
     sports nature for the events shown in this Schedule.

The Participants Exclusion also defines the term “any person”:

     “Any person” shall include but is not limited to
     animal   handlers,   announcers,    attendants,   clowns,
     contestants,    entertainers,    mechanics,    musicians,
     officials,   participants,   singers,   speakers,   stage
     crews, stock contractors, vendors or their employees,
     any person employed by or doing volunteer work for you
     or on your behalf, or any person involved in the
     promotion, sponsoring or production of the event
     designated in the Schedule.

          The   second   exclusion       at   issue   here   (“Professional

Services Exclusion”) reads as follows:

     EXCLUSION – DESIGNATED PROFESSIONAL SERVICES

     This endorsement modifies insurance provided under the
     following:

          COMMERCIAL GENERAL LIABILITY COVERAGE PART

     SCHEDULE

     Description of Professional Services:



     1.   MOTIVATIONAL SPEAKER

                * * *

     With respect to any professional services shown in the
     Schedule, this Insurance does not apply to “bodily
     injury”, “property damage”, “personal injury” or
     “advertising injury” due to the rendering or failure
     to render any professional service.


                                     4
Based on these exclusions, Alea denied coverage to Biro for the

allegations contained in the Complaint.                Reese then brought a

declaratory judgment action against Alea and Biro, seeking a

declaration that the Policy provided coverage for her injuries.

Alea   removed   the   declaratory      judgment   action     to   the    United

States District Court for the District of South Carolina.                      Biro

joined Reese’s declaratory judgment claim.

            Alea’s     answer      denied   coverage      and      included      a

counter-claim    seeking    a     declaration   that    the   Policy     did    not

provide coverage for the injury giving rise to the complaint due

to the Participants and Professional Services Exclusions.                      Alea

then moved for summary judgment.            Reese also moved for summary

judgment, arguing that neither exclusion was applicable to her

claim.

            The district court granted summary judgment in favor

of Alea.    The court found that, under the plain meaning of the

insurance    contract,     both    exclusions   were     applicable      to     the

Complaint, and served to bar coverage for Reese’s claim.                         As

Reese was “participating in [a] . . . demonstration, . . . or

an[] activity of an athletic or sports nature,” the court held

that the Participants Exclusion applied.               Reese v. Alea London

Ltd., 2008 WL 1766686, at *2 (D.S.C. April 11, 2008).                  Further,

the court concluded that as Biro was “leading a team-building

exercise as part of [a] seminar when he encouraged Reese to try

                                       5
to break a board with her hands[,] . . . the actions for which

Biro may be held accountable in the state court proceeding are

professional in nature.”              Id. at *3.        Accordingly, the court

held, the Professional Services Exclusion also served to bar

coverage.      Id.

               Reese   raises   two     issues     on      appeal.   First,      she

contends that the Participants Exclusion is not applicable to

her cause of action.         She argues that the exclusion applies only

to events “designated in the Schedule;” as no such Schedule is

attached, this exclusion was not part of the Policy.                      Even if

the Participants Exclusion was part of the Policy, Reese argues,

it did not apply in this situation, as she was not participating

in a “demonstration” or an “activity of an athletic or sports

nature” at the time of her injury.

               Second, Reese contends that the Professional Services

Exclusion does not apply to her cause of action.                      She argues

that Biro had no professional relationship with her and was not

rendering a professional service when he encouraged her to break

the    board    with   her   hand.      We   reject     these   contentions,     and

affirm.

               We review a district court’s order granting summary

judgment de novo and view the facts in the light most favorable

to the nonmoving party.              Bogart v. Chapell, 396 F.3d 548, 555

(4th    Cir.    2005).       Summary    judgment      is    appropriate   when    no

                                         6
genuine issue of material fact exists and the moving party is

entitled to judgment as a matter of law.                      Fed. R. Civ. P. 56(c);

see Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).                                      The

non-movant is entitled “to have the credibility of his evidence

as   forecast     assumed,        his    version     of    all   that         is    in    dispute

accepted, [and] all internal conflicts in it resolved favorably

to him.”         Charbonnages de France v. Smith, 597 F.2d 406, 414

(4th Cir. 1979).

            Reese       first      contends         that,     as        the        Participants

Exclusion specifically references an “event designated in the

Schedule,”       and    no   such        Schedule         exists,       the        Participants

Exclusion    does      not   apply       to   the    Policy.        However,             as   Reese

failed to raise this issue before the district court, it is not

properly before us.          See Muth v. United States, 1 F.3d 246, 250

(4th Cir. 1993) (holding that claims raised for the first time

on      appeal     will      not        be    considered           absent           exceptional

circumstances).        Accordingly, we decline to address this issue.

             Next,        Reese     contends          that,        as     she         was      not

participating in a demonstration or an activity of a sports or

athletic    nature     at    the    time      of    her    injury,      the        Participants

Exclusion does not bar Biro’s coverage.                          In a suit based on

diversity of citizenship, the substantive law of the forum state

is controlling.         Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938).

South     Carolina        courts        employ      general      rules         of        contract

                                              7
construction when interpreting insurance policies.                          See Century

Indem. Co. v. Golden Hills Builders, Inc., 561 S.E.2d 355, 358

(S.C. 2002).           Thus, courts will attach “plain, ordinary, and

popular meaning” to policy language.                     B.L.G. Enters., Inc. v.

First Fin. Ins. Co., 514 S.E.2d 327, 330 (S.C. 1999).                            “Insurers

have the right to limit their liability and to impose conditions

on their obligations provided they are not in contravention of

public policy or a statutory prohibition.”                      Id.    Though coverage

exclusions found within an insurance policy are to be construed

against the insurer, see id., a court’s duty “is limited to the

interpretation of the contract made by the parties themselves

regardless of its wisdom or folly, apparent unreasonableness, or

[the     parties’]      failure    to     guard      their      rights     carefully.’”

C.A.N. Enters., Inc. v. S. C. Health & Human Servs. Fin. Com’n,

373 S.E.2d 584, 587 (S.C. 1988) (internal quotation marks and

citation omitted).

            It is clear that Alea intended to limit its liability

through    the      Participants        Exclusion.         As     noted     above,        the

Participants Exclusion bars coverage for injuries received by

“‘any     person’      while   .    .    .       participating        in   any    .   .    .

demonstration, event, . . . or any activity of an athletic or

sports nature.”          One of the many definitions provided in the

Policy    for    the    broadly    defined        term   “any   person”     includes       a

“participant.”         At the time of her injury, Reese was attempting

                                             8
to break a board with her hand at the behest of Biro, in front

of a large audience of her coworkers, as part of a team-building

exercise.          Reese    referred       to   herself         as   a   “participant”     on

several occasions in the Complaint.                       Accordingly, we find that,

giving    the      terms     of    the    Participants          Exclusion    their    plain

meaning, Reese qualifies as “‘any person’ . . . participating”

under the Policy.

              Next,    we     must       determine       whether     the   board-breaking

attempts qualified as a “circus, concert, demonstration, event,

exhibition, race, rodeo, show, contest or any activity of an

athletic      or    sports    nature.”          Where      a    term     found   within    an

insurance policy is not defined in the policy, “the term should

be defined according to the ordinary and usual understanding of

the term’s significance to the ordinary person.”                             USAA Prop. &

Cas. Ins. Co. v. Rowland, 435 S.E.2d 879, 881-82 (S.C. Ct. App.

1993) (citing Green v. United Ins. Co. of Am., 174 S.E.2d 400,

402 (S.C. 1970)).           No ordinary understanding of the terms in the

Policy would equate breaking a board as part of a team-building

exercise to participation in a circus, concert, race, rodeo,

show,    or   contest.            Therefore,        we   must    determine       whether   an

ordinary      understanding         of    the   terms      “demonstration,”        “event,”

“exhibition,” or “any activity of an athletic or sports nature”

would encompass the circumstances giving rise to Reese’s injury.



                                                9
              Webster’s Dictionary describes “demonstration” as the

noun form of the verb “demonstrate,” for which it provides four

definitions: (1) “[t]o prove or show by evidence or reasoning;”

(2) “[t]o show or reveal;” (3) “[t]o explain, esp. by using

examples;” and (4) “[t]o make a public protest.”                       Webster’s II

Dictionary 194 (3d ed. 2005).                Reese acknowledges in her brief

that “[t]he whole point of th[e] motivational exercise was to

teach her that she could achieve something she may have thought

beyond her abilities.”              Thus, the board-breaking exercise was

clearly a demonstration, even under Reese’s own definition of

the term, as it was a “practical exhibition” of the notion that

“she could achieve something she may have thought beyond her

abilities.”         Accordingly,      the    district    court   was    correct      in

determining that the exercise was a “demonstration” as that term

is used in the Policy.

              Alternatively, the board-breaking exercise falls under

an ordinary understanding of the term “activity of an athletic

or sports nature.”          Though coverage exclusions found within an

insurance      policy    are   to    be     construed    against    the      insurer,

“courts      have   no   authority    to     torture    the   meaning       of   policy

language to extend or defeat coverage that was never intended by

the parties.”        Diamond State Ins. Co. v. Homestead Indus., Inc.,

456 S.E.2d 912, 915 (S.C. 1995).                 Webster’s defines “athletic”

as   “[o]f    or    relating   to    athletics    or    athletes”      or    “[o]f   or

                                            10
involving     physical       exertion       or     activity.”             Webster’s         II

Dictionary at 46.            This latter meaning is in accord with one

proposed    by    Reese:     “[c]haracterized           by    or   involving    physical

activity     or     exertion;       active.”            Under         either   of        these

definitions,       it   is    clear      that     the    board-breaking         exercise

qualifies as an “activity of an athletic or sports nature” under

the Policy.        Therefore, we find that the district court was

correct in determining that the Participants Exclusion precludes

coverage for Reese’s injury.

            In view of this finding, we need not address Reese’s

second     argument,       that     coverage      is         not   precluded        by    the

Professional Services Exclusion.                  For the reasons stated above,

we affirm the judgment of the district court.                          We dispense with

oral   argument      because       the    facts    and        legal    contentions        are

adequately       presented    in    the    materials          before     the   court      and

argument would not aid the decisional process.

                                                                                AFFIRMED




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