An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                 NO. COA13-83
                        NORTH CAROLINA COURT OF APPEALS
                             Filed:    21 January 2014
NAYLOR CONCRETE CONSTRUCTION CO., INC.,
     Plaintiff

                                                      Mecklenburg County
      v.
                                                      No. 10 CVS 7027

MID-CONTINENT CASUALTY COMPANY,
     Defendant


      Appeal by plaintiff from order entered 2 April 2012 by

Judge W. Erwin Spainhour in Mecklenburg County Superior Court.

Heard in the Court of Appeals 13 August 2013.


      Grimes Teich Anderson, LLP, by Scott M. Anderson and
      Jessica E. Leaven; Farah & Farah, P.A., by Kevin M. Elwell,
      for Plaintiff.

      Yates, McLamb & Weyher, L.L.P., by Rodney E. Pettey and
      Jennifer D. Maldanado, for Defendant.


      ERVIN, Judge.


      Plaintiff      Naylor      Concrete     Construction      Company,      Inc.,

appeals from an         order entering      summary judgment in favor of

Defendant     Mid-Continent        Casualty     Company      with    respect      to

Plaintiff’s     claim     that    Defendant     had   unlawfully      refused     to

provide coverage for Plaintiff in a tort action brought by an

individual employed by CDI Contractors, LLC, one of Plaintiff’s
                                                -2-
subcontractors,          against       Plaintiff.                 On   appeal,        Plaintiff

contends     that       the    trial       court      erroneously           granted    summary

judgment in Defendant’s favor on the grounds that an exclusion

obviating the necessity for Defendant to provide coverage for an

employee     of    an    insured       should         not    be    construed      so    as    to

encompass        the    employee      of    a    subcontractor          because        (1)    the

relevant exclusion, which had been drafted by Defendant, was

ambiguous and should, for that reason, be construed in such a

manner as to afford coverage under the “reasonable expectations”

doctrine; (2) an endorsement modifying the exclusion at issue in

this case was couched in unduly obscure and technical language

and had been unfairly hidden within the policy; and (3), even if

the relevant exclusion was not itself ambiguous, that language,

when    read      in     conjunction         with       the       policy’s      severability

provision,        precluded        the       entry      of        summary      judgment        in

Defendant’s favor.            After careful consideration of Plaintiff’s

challenges to the trial court’s order in light of the record and

the applicable law, we conclude that the trial court’s order

should be affirmed.

                               I. Factual Background

                                A. Substantive Facts

       On   15    August      2004,    CDI      entered       into     an    agreement       with

Dillard’s, Inc., for the construction of a retail facility at
                                         -3-
Northlake Mall in Charlotte.             On 15 September 2004, CDI entered

into   a     subcontract    with      Plaintiff       relating      to     work    to   be

performed on the Dillard’s project.                  According to the agreement

between CDI and Plaintiff, Plaintiff was required to indemnify

CDI for any liability arising from work performed in connection

with   the    Dillard’s     project      and    to    obtain     various      types     of

insurance coverage, including workers’ compensation and general

liability insurance, under which both Plaintiff and CDI would be

covered.

       In     compliance       with      this        and    similar         contractual

obligations,       Plaintiff    had     obtained       a   policy     of     commercial

general     liability     insurance     from     Defendant     applicable         to    the

year beginning 1 April 2004, which policy designated Plaintiff

as the named insured and, under a blanket endorsement, treated

CDI as an additional insured.                   According to the policy that

Plaintiff      procured    from       Defendant,       Defendant      would       provide

coverage for bodily injury occurring during the policy period

and defend the named insureds in the event that a claim arising

from a covered injury was asserted against one or more of them.

The policy that Plaintiff procured from Defendant also included

a   number    of   exclusions,        including      an    “Employer’s       Liability”

exclusion which provided that no coverage would be afforded for

bodily injury claims arising out of employment by “any insured.”
                                       -4-
      On 30 December 2004, Jennifer Marshall, a CDI employee, was

working at the construction site when a backhoe operated by one

of Plaintiff’s employees struck her and pinned her between the

wheel of the backhoe and a nearby column.                As a proximate result

of this accident, Ms. Marshall sustained a number of serious

injuries, including four cracked ribs, four pelvic fractures,

and a punctured colon.         A workers’ compensation claim brought by

Ms.     Marshall    against    CDI    arising     from    this     accident     was

eventually settled.

      On   30    October    2007,    CDI    instituted     an    action   against

Plaintiff pursuant to N.C. Gen. Stat. § 97-10.2 for the purpose

of obtaining an award of damages from Plaintiff stemming from

the injuries that Ms. Marshall had sustained and the resulting

necessity for CDI to provide workers’ compensation benefits to

Ms. Marshall.        On 17 December 2007, Defendant sent a letter to

Plaintiff for the purpose of informing Plaintiff that Defendant

would not provide Plaintiff with a defense in that action on the

grounds that it was investigating the extent, if any, to which

CDI’s    claim     was   covered    under   the   relevant      policy.    On    28

December 2007, Ms. Marshall filed a complaint alleging that she

was entitled to recover damages from Plaintiff as the result of

the injuries that she had sustained because of the negligence of

Plaintiff’s employee.          On 11 February 2008, Defendant sent a
                                            -5-
letter       to    Plaintiff    declining      to      provide   Plaintiff    with    a

defense or coverage in either case.

       On 6 August 2008, a motion filed by Ms. Marshall seeking

leave to intervene in the action brought against Plaintiff by

CDI was allowed.             On 11 August 2008, Ms. Marshall voluntarily

dismissed the action that she had brought against Plaintiff.                         In

an order filed on 3 November 2008, the trial court determined

that Ms. Marshall was the real party in interest in the action

that had originally been filed against Plaintiff by CDI and that

“the caption of [the] action” should reflect that fact in the

future.           After a bench trial in that case, the trial court

entered a judgment on 18 May 2009 awarding Ms. Marshall more

than $1,000,000 in damages.

                                B. Procedural Facts

       On 29 March 2010, Plaintiff filed a complaint seeking a

declaration that Defendant should have provided it with coverage

and a defense in the action which led to the entry of the 18 May

2009       judgment    and    the   recovery      of     damages   for   unfair      and

deceptive         trade   practices,    a     bad      faith   refusal   to   provide

coverage and a defense, and breach of contract.1                     On 12 October

2011, Defendant filed a motion seeking the entry of                           summary

judgment in its favor on the grounds that, among other things,
       1
      In its brief, Plaintiff expressly abandoned its bad faith
and unfair and deceptive trade practices claims.
                                            -6-
Ms. Marshall was “an employee of an additional insured under the

Policy      and    the   Employer’s         Liability         Exclusion      Endorsement

precludes coverage to an employee of any insured.”                           On the same

date, Plaintiff filed a motion seeking the                         entry of summary

judgment in its favor.           On 2 April 2012, the trial court entered

an   order       granting    Defendant’s          motion    for    summary     judgment,

denying Plaintiff’s motion for summary judgment, and dismissing

Plaintiff’s complaint with prejudice.                    Plaintiff noted an appeal

to this Court from the trial court’s order.

                               II. Legal Analysis

                                 A. Choice of Law

       As   an     initial   matter,        we    must     identify    the    law    which

governs      the    resolution    of    this        case.         In   its    complaint,

Plaintiff contended that, although the policy had been issued

and delivered in Oklahoma, North Carolina law should be applied

for the purpose of resolving the present case on the grounds

that the policy in question should be deemed to be a North

Carolina contract pursuant to N.C. Gen. Stat. § 58-3-1.                             On the

other hand, Defendant contended in the trial court that this

case     should     be   resolved      in        accordance     with   Oklahoma       law.

Although Plaintiff appears to have conceded the correctness of

Defendant’s position for purposes of the proceedings on appeal,

an evaluation of the parties’ apparent agreement that Oklahoma
                                        -7-
law must be utilized to resolve the present dispute                    remains

appropriate.

       “Traditionally, lex loci or the law of the place where a

contract is made determines matters bearing on the execution,

interpretation, and validity of the contract.”              Home Indem. Co.

v. Hoechst Celanese Corp., 128 N.C. App. 113, 119, 493 S.E.2d

806, 810 (1997).      According to N.C. Gen. Stat. § 58-3-1:

               All contracts of insurance on property,
               lives, or interests in this State shall be
               deemed to be made therein, and all contracts
               of insurance the applications for which are
               taken within the State shall be deemed to
               have been made within this State and are
               subject to the laws thereof.

Although the provisions of N.C. Gen. Stat. § 58-3-1 apply in the

event that “a close connection exists between this State and the

interests insured by an insurance policy,” “the mere presence of

the insured interests in this State at the time of an accident

does     not     constitute     a    sufficient   connection      to   warrant

application of North Carolina law.”            Fortune Ins. Co. v. Owens,

351 N.C. 424, 428, 526 S.E.2d 463, 466 (2000).

       The undisputed information contained in the present record

establishes that Defendant is an Oklahoma corporation which is

not registered to do business in North Carolina and that the

policy    in    question   in   this    proceeding   was   both   issued   and

delivered in Oklahoma.              For that reason, the only connection
                                            -8-
between the policy at issue and this State is the fact that the

Dillard’s store at which Ms. Marshall was injured is located in

North Carolina.            According to Fortune, such a connection does

not    suffice   to    establish         that    North   Carolina     law   should    be

applied for the purpose of resolving the dispute between the

parties.       As a result, given that the traditional “lex loci”

rule remains applicable in this jurisdiction and that the policy

in question in this case was “made” in Oklahoma, we agree with

the    parties   that       we    are    required   to     apply    Oklahoma   law    in

determining whether the trial court erred by granting summary

judgment in favor of Defendant.

                                 B. Standard of Review

       Although,      as    we    have    already   noted,     we    must   apply    the

substantive law of Oklahoma, we are required to follow our own

procedural rules in resolving the dispute between the parties.

See Harco Nat’l Ins. Co. v. Grant Thornton, LLP, 206 N.C. App.

687,    690,   698    S.E.2d       719,    722    (2010)     (quoting     Boudreau    v.

Baughman, 322 N.C. 331, 335, 368 S.E.2d 849, 853-54 (1988))

(stating that “[o]ur traditional conflict of laws rule is that

matters    affecting        the    substantial      rights    of    the   parties    are

determined by lex loci, the law of the situs of the claim, and

remedial or procedural rights are determined by lex fori, the

law of the forum”), disc. review denied, 365 N.C. 77, 706 S.E.2d
                                        -9-
235 (2011).       As a result, the applicable standard of review in

this case is the one dictated by North Carolina, rather than

Oklahoma, law.

     “Orders of summary judgment are reviewed de novo by this

Court and the evidence is reviewed in the light most favorable

to   the    non-moving       party.”          Integon     Nat’l     Ins.     Co.   v.

VillaFranco, __ N.C. App. __, __, 745 S.E.2d 922, 925 (2013).

As a result, an order granting summary judgment in favor of a

particular party will be upheld when, viewed in the light most

favorable to the non-movant, “the pleadings, deposition, answers

to interrogatories, and admissions on file, together with the

affidavits,      if   any,   show    that   there    is   no   genuine     issue   of

material fact” and that the prevailing party “is entitled to a

judgment as a matter of law.”               Lunsford v. Renn, 207 N.C. App.

298, 303-04, 700 S.E.2d 94, 97 (2010) (quoting N.C. Gen. Stat. §

1A-1, Rule 56(c)), disc. review denied, 365 N.C. 193, 707 S.E.2d

244 (2011).       We will now utilize this standard of review in

order to determine whether the trial court correctly granted

summary judgment in Defendant’s favor.

                      C. Employer’s Liability Provision

     In    its    initial    challenge       to   the     trial    court’s    order,

Plaintiff     contends       that,     in      accordance         with   Oklahoma’s

“reasonable      expectations”       doctrine,      the    employer’s      liability
                                             -10-
exclusion must be construed in such a manner as to give effect

to   the     parties’       expectations,            which      were,        according       to

Plaintiff, that the exclusion in question would only apply to

claims     for    which    the    named       insured’s        workers’          compensation

coverage was available.               In Plaintiff’s view, given that Ms.

Marshall    was    employed      by     CDI    and    given       that      Ms.     Marshall’s

injuries     would        not    be     covered           by   Plaintiff’s              workers’

compensation       insurance,         the     exclusion        upon        which       Defendant

relies did not operate to bar Plaintiff’s request for coverage.

We do not find Plaintiff’s contention persuasive.

     The     “reasonable         expectations”            doctrine       was       adopted   in

Oklahoma     in    Max    True     Plastering         Company         v.     United      States

Fidelity     and    Guaranty      Company,          912    P.2d    861       (Okla.      1996).

“Under     the    reasonable      expectations            doctrine,        the     objectively

reasonable       expectations      of       applicants,        insureds          and    intended

beneficiaries concerning the terms of insurance contracts are

honored even though painstaking study of the policy provisions

might have negated those expectations.”                           Max True Plastering

Co., 912 P.2d at 862-63.                As a result, under the “reasonable

expectations” doctrine, “if the insurer or its agent creates a

reasonable expectation of coverage in the insured which is not

supported by policy language, the expectation will prevail over

the language of the policy.”                  Id. at 864.          On the other hand,
                                        -11-
the     doctrine     upon    which     Plaintiff       relies     is       subject    to

reasonable limits given that, “[i]f the doctrine is not put in

the    proper    perspective,    insureds       could     develop      a    ‘reasonable

expectation’ that every loss will be covered by their policy and

courts would find themselves engaging in wholesale rewriting of

insurance       policies.”      Id.    at    868.         For   that       reason,    the

“reasonable      expectations”       doctrine    only     applies      “to    cases    in

which    policy    language    is    ambiguous      and    to   situations       where,

although    clear,     the    policy        contains      exclusions         masked   by

technical or obscure language or hidden exclusions.”                            Id. at

870.

                       1. Clarity of Policy Language

       The first issue which we must address in order to determine

the applicability of the “reasonable expectations” doctrine is

whether the relevant policy provision is ambiguous.                             “It is

settled under Oklahoma’s extant jurisprudence that ascertaining

whether the terms of an insurance policy are ambiguous is for

the Court to determine as a matter of law.”                       Bituminous Cas.

Corp. v. Cowen Constr. Inc., 55 P.3d 1030, 1033 (Okla. 2002).                           A

careful examination of the relevant provisions of the policy

which    Plaintiff    procured       from   Defendant      establishes        that    the

exclusion upon which Defendant relies is not ambiguous.

       The exclusion at issue in this case provides that:
                                              -12-
              This insurance does not apply to:

                                             . . . .

              “Bodily Injury” to:

              (1)       An “employee” of any Insured arising
                        out of and in the course of:
                        (a) Employment by any insured; or

                        (b)       Performing duties related to the
                                  conduct of the insured’s business;
                                  or

                                             . . . .

              This exclusion applies:

              (1)       Whether the insured may be liable as an
                        employer or in any other capacity;

                                             . . . .

              (3)       To liability assumed by any                  insured
                        under an “Insured contract”

According      to       the       definitional       provisions    contained      in     the

policy, the term “insured” includes “any person or organization

qualifying as such under” the provision entitled “Who is An

Insured.”          As    a    result,      according    to   an   endorsement     in    the

policy,      the    class         of     “insureds”    included     “[a]ny     person     or

organization for whom the named Insured has agreed by written

‘insured contract’ to designate as an additional insured subject

to all provisions and limitations of this policy.”                             In view of

the   fact    that       the       term    “insured     contract”    is    defined,       in

pertinent     part,          in    the   policy   as   “[t]hat    part    of   any     other
                                                -13-
contract or agreement pertaining to your business . . . under

which you assume the tort liability of another party to pay for

‘bodily    injury’          or    ‘property       damage’         to    a    third     person    or

organization”          and       the     fact     that       Plaintiff        had      agreed     to

indemnify CDI from any loss which CDI sustained as a result of

Plaintiff’s conduct, CDI was an additional insured for purposes

of   the   insurance             policy    that     Plaintiff          had    purchased         from

Defendant.           As a result, according to Defendant, the relevant

exclusion unambiguously precludes a finding of coverage in this

instance    because          Ms.       Marshall,       as    an   employee        of    CDI,     was

employed        by    and    injured       in     the        course     and    scope      of     her

employment with “any insured.”

      According to Plaintiff, on the other hand, the language in

which the relevant exclusion is couched is ambiguous because the

result reached by analyzing the policy language in a literal

manner is contrary to the established purposes of and intentions

underlying similar exclusions on the grounds that such a literal

reading     of       the    exclusion       in     question        would      unfairly         leave

Plaintiff       devoid       of    coverage       in     a    situation       which      commonly

exists     in    the       construction         industry.              Although      Plaintiff’s

arguments have equitable appeal, we are unable to square them

with the fact that the reference to “any insured,” which is the
                                           -14-
operative policy language for purposes of our present inquiry,

is clear and unambiguous.

       As   all    of    the     parties     to     this     case    acknowledge,     an

insurance policy is a contract.                   According to well-established

Oklahoma law, “[t]he language of a contract is to govern its

interpretation, if the language is clear and explicit, and does

not involve an absurdity.”              15 Okla. Stat. § 154.                 Moreover,

“[w]hen a contract is reduced to writing, the intention of the

parties     is    to    be     ascertained        from     the   writing   alone,    if

possible,    subject,        however,   to    the        other   provisions    of   this

article.”        15 Okla. Stat. § 155.            Finally, “[a] contract may be

explained by reference to the circumstances under which it was

made, and the matter to which it relates.”                          15 Okla. Stat. §

163.    As a result, during the contract construction process:

            [a] contract must be considered as a whole
            so as to give effect to all its provisions
            without narrowly concentrating upon some
            clause or language taken out of context.
            The language in a contract is given its
            plain and ordinary meaning unless some
            technical term is used in a manner meant to
            convey a specific technical concept.    The
            court must interpret a contract so as to
            give effect to the intent of the parties at
            the time the contract was formed.

Mercury Inv. Co. v. F. W. Woolworth Co., 706 P.2d 523, 529

(Okla. 1985) (footnotes omitted) (citing 15 Okla. Stat. §§ 152,

157 and 160 (1985)).            However, “[w]hen [the] terms [in which a
                                            -15-
contract is couched] are unambiguous and clear, the employed

language is accorded its ordinary, plain meaning and enforced so

as    to   carry    out     the    parties’      intentions.”             Bituminous      Cas.

Corp., 55 P.3d at 1033.             In view of the fact that the parties do

not dispute that CDI was an “insured” as that term is used in

the    relevant      policy       provision      and        that   “any”    is    neither     a

defined nor a “technical term . . . used in a manner meant to

convey a specific technical concept,” the term “any” must be

“given its plain and ordinary meaning,” during the process which

we utilize in determining whether the expression in question is

ambiguous.     Mercury Inv. Co., 706 P.2d at 529.

       Although      “[a]    contract      term        is    ambiguous     if    it   can   be

interpreted as having two different meanings,” Equity Ins. Co.

v.    City   of     Jenks,        184    P.3d    541,        544    (Okla.       2008),     the

alternative        meanings       upon   which     a    finding      of    ambiguity      must

necessarily        rest     must    arise       from        the    relevant      contractual

language rather than from some other source.                         For that reason,

             the practical construction of an agreement,
             as evidenced by the acts and conduct of the
             parties, is available only in the event of
             an ambiguity.     But where a contract is
             complete in itself and, as viewed in its
             entirety, is unambiguous, its language is
             the only legitimate evidence of what the
             parties intended.     The intention of the
             parties   cannot  be   determined  from  the
             surrounding   circumstances,   but  must  be
             gathered from a four-corners’ examination of
             the contractual instrument in question.
                                          -16-


Mercury Inv. Co., 706 P.2d at 529 (emphasis omitted).                             This

fundamental    principle       is    illustrated      in    Bituminous       Casualty

Corporation, in which patients at a hospital contracted lead

poisoning from what appeared to be the negligent construction of

a dialysis center.       The insurance policy at issue in that case

excluded claims for “[b]odily injury or property damage arising

out of the actual, alleged or threatened discharge, dispersal,

release or escape of pollutants,” with pollutants being defined

as   “any    solid,     liquid,      gaseous     or     thermal        irritant    or

contaminant,       including     smoke,      vapor,     soot,       fumes,    acids,

alkalis, chemicals and waste.”               Bituminous Cas. Corp., 55 P.3d

at   1031   n.1.      Although      the    insured    argued    that    the    policy

provision     was     intended       to     exclude        purely    environmental

pollutants, a category which did not include lead, the Oklahoma

Supreme Court rejected this assertion, holding that:

            Nowhere in the policy’s lexicon is there
            language   employed    which  would  sustain
            finding-as suggested by the insured-the
            pollution exclusion clause only excluded
            from coverage that bodily injury and/or
            property damage which occurred when the
            general “environment” was damaged by the
            insured’s acts.     An insured cannot insist
            upon a strained construction of relevant
            policy language in order to claim a patent
            ambiguity exists nor can it contradict the
            written instrument’s plain terms under the
            guise of a latent ambiguity.
                                                  -17-
Id.    at   1034.         As     a    result,         in     order    to    establish       that   an

ambiguity      sufficient            to    invoke          the    “reasonable       expectations”

doctrine exists           in this instance, the plain language of the

relevant policy provision must be susceptible to at least two

reasonable interpretations.

       A careful analysis of the relevant policy language shows

that the expression “any insured” is clear and unambiguous.                                        As

an initial matter, the word “any,” when read in context, means

“every.”           Webster’s New World College Dictionary 64 (4th ed.

2006).      In addition, given that “[t]he whole of a contract is to

be    taken    together,         so       as    to    give       effect     to    every    part,   if

reasonably         practicable,           each       clause       helping    to    interpret       the

others,” 15 Okla. Stat. § 157; see also Mercury Inv. Co., 706

P.2d at 529, we note that the policy in question has both an

employer liability exclusion and a separate exclusion applicable

to    situations          in     which         workers’           compensation          coverage   is

available,          a     fact        which          severely        undercuts           Plaintiff’s

suggestion         that   the        employer        exclusion        was    only       intended    to

operate       in    instances         in       which       the    named     insured’s       workers’

compensation         coverage         had      been     implicated.              Even    within    the

employer      liability          exclusion,            the       policy    specifically       states

that the exclusion applies “[w]hether the insured may be liable

as an employer or in any other capacity,” a fact which indicates
                                           -18-
that the relevant policy provision should be read broadly to

apply to a wide variety of situations, including instances such

as those before us in this case.                   As a result, we believe that

the clear and unambiguous language of the employer liability

exclusion     demonstrates         that     Defendant       was    not     obligated    to

provide coverage in any situation, regardless of its nature, in

which the injured party was employed by a named insured.

       The appellate courts in              Oklahoma have, on at least one

prior occasion, evaluated the meaning of “any insured.”                             In BP

America,     Inc.     v.   State     Auto     Property      &     Casualty    Insurance

Company,     148    P.3d    832      (2005),       the    Oklahoma       Supreme    Court

considered a case in which the plaintiff, which had entered into

a    construction      contract        with       Rowland       Construction,       Inc.,

purchased general liability and automobile liability policies

under which Rowland was designated as the named insured and the

plaintiff     was     listed    as    an    additional          insured.      After    an

employee of Rowland was involved in a motor vehicle accident in

which several non-employee third parties were injured or killed,

the plaintiff sought to obtain a judgment ordering the defendant

to provide coverage under the general liability policy.                                148

P.3d   at   833-35.        In   response      to    the    plaintiff’s       claim,    the

defendant argued that it was not obligated to provide coverage

on   the    grounds    that     the       relevant       language    in     the    general
                                               -19-
liability policy excluded coverage in the event that the injury

for which recovery was sought stemmed from the operation of a

motor vehicle by “any insured.”                       Id. at 836.             On appeal, the

Oklahoma    Supreme          Court     considered           whether       the      “term       ‘any

insured’ in an ‘Auto Exclusion’ clause of a commercial general

liability       policy        exclude[d]         from       coverage         all     automobile

occurrences attributable to any of the insureds,” id. at 833;

determined that the term “any insured” was unambiguous and “that

to rule otherwise would require [the court] to ignore the clear

language of an exclusion and expand the policy terms well beyond

the parties’ reasonable expectations,” id. at 838-39; and held

that   “adopting        the    position         advanced         by    the     insured       would

require     that       [the     court]         unilaterally           convert       a    general

liability       policy-without        motor      vehicle          coverage–into          a     [sic]

automotive liability policy.”                  Id. at 839.

       Although     Defendant        argues       that      BP    America       controls        the

outcome    of    that    case,       we   are    not       prepared      to     take     such    an

expansive       view    of    the     decision        in    question.              Instead,      as

Plaintiff       suggests,       BP    America         is    distinguishable             from    the

present    case    in    a    number      of    respects.             First,    the      question

certified to the Oklahoma Supreme Court in BP America revolved

around    the    proper       interpretation           of    an       automobile        exclusion

contained in a general liability policy rather than an employer
                                         -20-
liability exclusion contained in a commercial liability policy.

Secondly, the injured party in BP America, unlike the injured

party in this case, had no relationship to either of the named

insureds.      Finally, the plaintiff in BP America argued that the

term “any” should be interpreted to mean “the” instead of “all,”

id. at 836, while Plaintiff, in addition to acknowledging that

“any”    means   any,     simply    argues      that,   given      the    absence   of

qualifying       language,       “any”     is    open    to        two     reasonable

interpretations in light of the purpose underlying the relevant

exclusion and should, for that reason, be deemed ambiguous.                         As

a result, given that the exact issue before us in this case was

not before the Oklahoma Supreme Court in BP America, we are

unable   to    conclude    that     BP   America    absolutely       controls       the

outcome in this case.            On the other hand, the approach taken by

the Oklahoma Supreme Court in BP America is consistent with the

approach      that   we   have    deemed   appropriate        in    this    case    and

provides an obvious indication that the result                       that we have

reached in this case is consistent with the manner in which the

Oklahoma courts would resolve the present issue in the event

that it was presented to them for determination.                         See also All

American Ins. Co. v. Burns, 971 F.2d 438, 445 (10th Cir. 1992)

(first omission in original) (holding that, under Oklahoma law,

a provision contained in a comprehensive liability policy issued
                                              -21-
to   a       religious     organization        excluding       coverage     for    “personal

injury [claims] arising out of the willful violation of a penal

statute . . . committed by or with the knowledge . . . of any

insured” was “clear and unambiguous”), and Farmers Ins. Co. v

McClain, 603 F.2d 821, 823 (10th Cir. 1979) (holding that, under

Oklahoma law, a household exclusion contained in an automobile

liability policy providing that coverage was not available for

“the         liability    of    any   insured    for    bodily     injury     to    (a)   any

member of the same household of such insured except servants, or

(b) the         Named insured,” was            clear and unambiguous”              and “was

clearly intended to be applicable to permissive users as well as

the named insured”).2

         In     seeking        to   persuade     us     that    the   relevant       policy

provision is ambiguous, Plaintiff also directs our attention to

a    number       of     decisions     from     other    jurisdictions.            Although

Plaintiff acknowledges, as Defendant demonstrates in its brief,

that there are other decisions from across the country which

find         similar     policy     language     to    be   clear     and    unambiguous,

Plaintiff asserts that we should find the decisions upon which
         2
      At one point in its brief, Plaintiff also appears to
suggest that we should disregard BP America on the grounds that
it was wrongly decided.    However, given that our role in this
case is limited to attempting to determine how the Oklahoma
courts would decide the issue which is before us in this case,
it would be inappropriate for us to evaluate the extent, if any,
to which we believe that the BP America court should have
reached a different result.
                                        -22-
it relies to be persuasive for purposes of resolving the issue

which has been presented for our decision in this case.                                       A

careful     examination       of     each    of     the     decisions          upon    which

Plaintiff       relies       establishes          that      all         of      them        are

distinguishable     from      this    case     in    ways    that       we     find    to    be

material.

     Although the United States District Court for the District

of   Utah    held      in     Cyprus        Plateau       Mining        Corporation          v.

Commonwealth Insurance Company, 972 F. Supp. 1379, 1382 (D. Utah

1997), that an exclusion providing that the “Policy [did] not

cover Personal Injury including Bodily Injury to any employee of

any Insured under [the] policy for which the Insured or his

indemnitee    may   be      held   liable,”       would,     when       read    literally,

exclude coverage in a situation similar to this one, the Court

still   found    the     relevant      policy       language       to    be     ambiguous,

stating that:

            given the purposes of the Commonwealth
            policies–to protect the insured from claims
            brought by persons other than their own
            employees   and   to  avoid   coverage   that
            duplicated    the    worker’s    compensation
            coverage     already    available–and     the
            circumstances in which Cyprus was named as
            an additional insured–to increase rather
            than decrease its coverage–it cannot be said
            that the language of the exclusion can be
            interpreted only to mean that any claim of
            any employee of any insured against any
            insured is excluded from coverage.
                                     -23-
972 F. Supp. at 1385.         In light of the fact that the policy at

issue   in   Cyprus     Plateau,   unlike   the   policy    at   issue   here,

included     a    reference   to   “the   Insured”   in    addition   to   the

reference to “any insured” and the fact that the Cypress Plateau

Court appears to have based its decision on the perceived intent

of the parties rather than the language in which the policy in

question is couched, we do not believe that the logic employed

and result reached in         Cyprus Plateau      is consistent with the

result which would be reached in this case by an Oklahoma court.

    Similarly, in Transport Indemnity Company v. Wyatt, 417 So.

2d 568, 570 (Ala. 1982), the Alabama Supreme Court held that an

exclusion contained in a corporate liability policy excluding

“any OCCURRENCE which caused BODILY INJURY to any employee of

any INSURED arising out of or in the course of his employment by

any INSURED” was ambiguous on the grounds that “[t]he wording

could be interpreted to mean either only singularly ‘any one of

the insureds’ or could apply “collectively to the whole group of

insureds.”        However, the Court failed to explain, based on an

analysis of the relevant policy language, why this ambiguity

existed.         Although the claims that were asserted against the

insureds involved in Wyatt might have been covered by workers’

compensation, the policy in question does not appear to have

contained any language like that found in the policy at issue
                                        -24-
here    specifically        providing        that      the      exclusion         applied

regardless of the capacity in which the insured was held liable.

As a result, we do not believe that Wyatt reflects the result

that would be reached by the Oklahoma courts in the event that

they were called upon to construe the policy language at issue

here.

       Finally,    in    Pacific        Indemnity        Company         v.      Transport

Indemnity Company, the California Court of Appeals examined an

automobile    liability      “‘policy        [that     did]     not      apply    to    any

liability    for   bodily    injury,     .     .   .   of    any   employee        of   any

Insured arising out of and in the course of his employment by

any    Insured’”   and   held,     in    reliance        upon      its     decision      in

Pleasant Valley Lima Bean Growers Ass’n v. Cal-Farm Ins. Co.,

142 Cal App. 2d 126, 133-34, 298 P.2d 109, 113-14 (1956), that

the reference to “any insured” was ambiguous on the grounds

that:

            [t]he phrase “any employee of any insured”
            is susceptible to two interpretations: it
            could mean any employee of any insured who
            is seeking protection under the policy or it
            could mean any employee of any insured under
            the contract, whether or not that insured is
            seeking protection under the policy.   It is
            unnecessary to show which interpretation is
            more logical.

81 Cal. App. 3d 649, 653, 656, 146 Cal. Rptr. 648, 649, 651

(1978) (omissions in the original).                    Aside from the fact that
                                      -25-
the   Pacific       Indemnity     Court    simply         asserted,     rather     than

demonstrated, that the relevant policy language was susceptible

to both of the interpretations set out in its opinion, nothing

in Pacific Indemnity suggests that the additional factors upon

which we have relied in determining that the policy language at

issue here was not ambiguous, such as the separate exclusion for

situations     involving     workers’      compensation        coverage     and     the

language providing that the exclusion applied regardless of the

capacity in which the insured was held liable, were present in

that case.       As a result, we do not believe that the result

reached in Pacific Indemnity reflects the approach that would be

adopted   by    the    Oklahoma   courts       in   the    event   that    they    were

called upon to decide the present case.3

      A   careful       examination       of    the       arguments     advanced     in

opposition to the result reached in the trial court’s order

indicates that Plaintiff           would have this Court focus on the

perceived general purposes underlying the inclusion of employer

exclusions     in     insurance   policies,         the    inequities     that    would

allegedly result from the adoption of the position reflected in

      3
      The same factors persuade us that the logic adopted by the
California Court of Appeals in United States Steel Corporation
v. Transport Indemnity Company, 241 Cal. App. 2d 461, 474, 50
Cal. Rptr. 576, 384-85 (1966), is not reflective of the approach
which would be adopted in this case in the event that the
Oklahoma courts were to address the issues before us in this
case in light of the law applicable in that jurisdiction.
                                                   -26-
the trial court’s order, and other general policy considerations

in order to ascertain whether the relevant policy provision is

ambiguous rather than upon an examination of the actual policy

language.         Put another way, Plaintiff’s argument rests, for the

most       part,    upon      a     number          of        equitable       or     policy-based

justifications for interpreting the reference to “any insured”

in   the     relevant      policy        in    such       a    manner    as    to    trigger   the

application        of   the    “reasonable              expectations”         doctrine    rather

than       advancing    an    analysis             of   the     literal       language    of   the

employer         exclusion        that    demonstrates             the    existence       of   an

ambiguity in the relevant policy language.4                             For that reason, the

approach which Plaintiff would apparently have us adopt suffers

from       the   deficiency       that        it    relies,      contrary       to   controlling

Oklahoma law, upon factors other than the plain meaning of the

relevant         policy       provision             to        establish        the     necessary

“ambiguity.”         As a result, given that Plaintiff has failed to

offer any textual support for a determination that the term “any

insured” is ambiguous and given that our reading of the language

       4
      Plaintiff does contend that the fact that the exclusion in
question   is   titled   “Employer’s   Liability”  rather   than
“Employers’ Liability” creates the ambiguity necessary to
trigger application of the “reasonable expectations” doctrine.
However, we are unable to see why the use of a singular heading
should negate the unambiguous language which appears in the text
of the relevant policy provision given that this exclusion would
be applicable to each insured as well as to the insured
collectively.
                                            -27-
of    the   employer      liability       exclusion       indicates         that       no   such

ambiguity exists, we conclude that Plaintiff’s initial challenge

to the trial court’s order lacks merit.

                           2. Obscurity of Endorsement

       As   we    have    already    noted,        the   “reasonable         expectations”

doctrine may apply “to cases in which . . ., although clear, the

policy      contains      exclusions        masked       by     technical         or   obscure

language or hidden exclusions.”                    Max True Plastering Co., 912

P.2d at 870.            According to Plaintiff, the modified version of

the   employer      liability       exclusion       contained         in    the    commercial

general liability policy at issue here was adopted by means of a

modification to the relevant policy “buried on page 53 of the

endorsements       that    follow     the    Policy”          that    changed      the      prior

reference to “the insured” to “any insured.”5                          In light of these

facts, Plaintiff contends that, even if the language of the

employer exclusion is clear and unambiguous, we should construe

the relevant policy language in a manner favorable to Plaintiff

given      that   the    language    in     question          was    both   “technical         or



       5
      Aside from the arguments advanced in the text, Plaintiff
advances   other   contentions   in  support of   its  “hidden
endorsement” assertion.      In view of the fact that these
additional arguments rely on the allegedly ambiguous nature of
the employer exclusion and the fact that we have already
determined that the relevant policy language is clear and
unambiguous, we need not address this aspect of Plaintiff’s
“hidden endorsement” argument any further.
                                                   -28-
obscure” and “hidden.”                      We do not find Plaintiff’s argument

persuasive.

       According          to    the    undisputed            record    evidence,      the    policy

that Plaintiff had procured from Defendant had been renewed on

multiple occasions.                   In view of the length of time that had

passed    since       the       date       upon       which    the     policy   was       initially

issued, a number of endorsements had been issued for the purpose

of     modifying          the    original             policy     language,      including         the

language       in     which       the        employer          liability      endorsement         was

couched.        The       sixth       page       of    the    policy    includes      a    list    of

endorsements and a specification of the states to which each

endorsement applies.              The endorsement at issue here, ML 1276, is

included       in    this       list       and    states,       at    the    very   top     of    the

relevant page on which it appears, “THIS ENDORSEMENT CHANGES THE

POLICY.        PLEASE READ IT CAREFULLY.”                        As a result of the fact

that each endorsement was set forth on a separate page, the fact

that     the        presence          of     the        master       list    facilitated          the

policyholder’s            ability      to     identify         each    endorsement,         and   the

fact    that        the    endorsement            heading       was    set    out   in      capital

letters, the manner in which the endorsement in question was

implemented and couched more than sufficed to put Plaintiff on

notice that the policy had been changed.                                    Although Plaintiff

argues that other approaches that Defendant might have taken
                                               -29-
would have been clearer, that fact, standing alone, does not

suffice to establish that Defendant “hid” the change to the

employer      liability         exclusion       worked      by       the   endorsement       in

question.          In   addition,        the    language     in      which    the    modified

version of the employer exclusion is couched does not, at least

to    us,    appear     to     be   technical         or    obscure.          In     spite   of

Plaintiff’s argument to the contrary, we are unable to see how

the expression “any insured” can be deemed to fall into the

category of “technical or obscure” expressions.                              Unless we were

to hold that any and all endorsements triggered the operation of

the   “reasonable          expectations”         doctrine,       a    result       that   would

clearly conflict with Oklahoma law, we cannot conclude that the

endorsement at issue here was couched in “obscure and technical”

language or “hidden” from Plaintiff.                        As a result, we conclude

that the endorsement at issue here was not such as to authorize

the use of the “reasonable expectations” doctrine to interpret

the employer liability exclusion in the manner contended for by

Plaintiff.

                              D. Severability Provision

       Finally, Plaintiff argues that, even if the language in

which the employer exclusion is couched is clear and unambiguous

and   even    if     the      modified    version      of    the      employer       liability

exclusion      set      out    in   the    relevant         endorsement        was    neither
                                     -30-
“hidden” nor couched in “obscure and technical” language, the

severability    clause    contained    in   the   policy    that   Plaintiff

procured from Defendant created a sufficient ambiguity to permit

us to construe the policy in a manner favorable to Plaintiff.

More   specifically,     Plaintiff    contends    that,    given   that   the

employer liability exclusion excludes claims asserted by “any”

employee arising out of the claimant’s employment with “any”

insured and given that, in light of the language in which the

severability clause is couched, Plaintiff should be viewed as

the only insured for purposes of applying the language of the

employer exclusion, it is, for that reason, entitled to receive

coverage under the policy in question.              Plaintiff’s argument

lacks merit.

       The severability provision upon which Plaintiff’s argument

rests provides that:

           Except with respect to the Limits of
           Insurance,   and   any  rights  or   duties
           specifically assigned in this Coverage Part
           to the first Named Insured, this insurance
           applies:

           a.    As if each Named Insured were the only
                 Named Insured; and

           b.    Separately to each insured against whom
                 claim is made or “suit” is brought.

According to Plaintiff, the language of the severability clause

indicates that the policy in question applies separately to each
                                         -31-
insured, thereby precluding an interpretation of the employer

exclusion      which     treats       multiple     entities         as    “insureds.”

Although this argument has surface appeal, it was specifically

rejected in     BP     America, in which the Oklahoma Supreme Court

addressed     the     issue    of     whether    the    existence        of   an   auto

exclusion and a separation of insureds clause identical to the

one at issue here rendered the policy in question ambiguous for

purposes of Oklahoma law.               BP America, 148 P.3d at 833.                 In

considering     the    merits    of    an    argument    indistinguishable         from

that advanced by Plaintiff in this case, the court concluded

that   the    “purpose    of    severability      is    not    to   negate     plainly

worded exclusions” and that “exclusions are read separately and

operate independently from the general declaration identifying

events which will not be covered.”                     Id. at 841-42 (emphasis

omitted).     Although Plaintiff attempts to distinguish BP America

on the grounds that it involved an automobile exclusion rather

than an employer exclusion, we note that BP America and this

case   both     involved        general      liability     policies,          addressed

identical     issues     and    policy      language,    and   used      language    of

considerable breadth.           For that reason, even though BP America

may not absolutely control the resolution of the issue that is

before us, it does provide considerable light on the manner in

which the Oklahoma courts have viewed issues similar to the one
                                            -32-
before us in this case.              Moreover, the BP America Court clearly

declined to follow the decisions in United States Fidelity and

Guaranty Company v. Globe Indemnity Company, 60 Ill. 2d 295,

299, 327 N.E.2d 321, 323 (1975) (holding that a severability

provision       provided      coverage       to        an     additional       insured       for

injuries suffered by an individual employed by a named insured

despite the presence of an employer liability exclusion), and

Atchison,      Topeka       and    Santa    Fe    Railway        Company       v.    St.    Paul

Surplus Lines Insurance Company, 328 Ill. App. 3d 711, 716, 767

N.E.2d 827, 831 (2002) (holding, in reliance upon U.S. Fid. &

Guar. Co., that “the separation clause contained in the St. Paul

policy provide[d] separate coverage” for each insured “as if

each    was    separately         insured    with       a     distinct     policy”),         and

implicitly      rejected      the    logic        of    the     decisions       in    Cook    v.

Country Mutual Insurance Company, 126 Ill. App. 3d 446, 447-48,

466 N.E.2d 587, 588 (1984) (reversing, in reliance upon U.S.

Fid.    &    Guar.,    a    trial    court       determination          that    an    employer

liability       exclusion         obviated       the        defendant     from       providing

coverage      given    the    presence       of    a        severability       clause),      and

Shelby      Realty    LLC    v.    National       Surety       Corporation,          2007   U.S.

Dist.       Lexis    29482    *10    (S.D.N.Y.          2007)     (holding          that    “the

Employee Exclusion, read in conjunction with the Separation of

Insureds Clause, does not relieve National of its obligation to
                                     -33-
indemnify Shelby for the Personal Injury Action”),6 on the theory

that “most courts addressing the issue of whether a severability

clause   will    render     a    clear     and     unambiguous      exclusionary

provision   doubtful     determine    that     the   clear      language   of   the

exclusion must prevail.”7          148 P.3d at 841.             As a result, the

language of the severability clause contained in the policy that

Plaintiff purchased from Defendant does not suffice to support a

determination    that     the   employer       exclusion     is    ambiguous    and

subject to interpretation in Plaintiff’s favor on the basis of

the “reasonable expectations” doctrine.

                                III. Conclusion

    For the reasons set forth above, we conclude that none of

Plaintiff’s challenges to the trial court’s order have merit and

that the trial court did not err by granting summary judgment in

Defendant’s     favor.      Although       a     number    of     policy-oriented
    6
      A number of courts have criticized Shelby Realty, stating
that it does not “accurately reflect[] the current state of the
case law in New York,” Richner Development, LLC v. Burlington
Insurance Company, 2009 N.Y. Misc. Lexis 5221 *8 (N.Y. Sup. Ct.
2009), aff’d 81 App. Div. 3d 705, 916 N.Y.S. 2d 211 (2011), and
that it represents a minority position. Nautilus Ins. Co. v. K.
Smith Builders, Ltd., 725 F. Supp. 2d 1219, 1229 (D. Haw. 2010).
    7
      We also note that the employer liability exclusion at issue
in two of the three cases upon which Plaintiff relies references
a “protected person,” Atchison, Topeka and Santa Fe Railway
Company, 328 Ill. App. 3d at 713, 767 N.E.2d at 828, or “an
insured,” Cook, 126 Ill. App. 3d at 446, 466 N.E.2d at 587,
rather than “any insured,” a fact that renders these decisions
distinguishable   on   policy  language   grounds   as  well   as
inconsistent with BP America.
                                      -34-
objections can be advanced in opposition to the result that we

believe to be required under Oklahoma law, we are compelled by

the applicable Oklahoma decisions to focus upon the language of

the   policy   rather   than   upon    the   broader   considerations   upon

which Plaintiff urges us to rely.            As a result, given that the

language of the employer exclusion is clear and unambiguous when

applied to the present set of facts, the trial court’s order

should be, and hereby is, affirmed.

      AFFIRMED.

      Judges McGEE and STEELMAN concur.

      Report per Rule 30(e).
