source: Caselaw Access Project

author: POOLER, Circuit Judge:

license: Public Domain

text:
    GLOBAL REINSURANCE CORPORATION OF AMERICA, successor in interest to Constitution Reinsurance Corporation, Plaintiff-Counter-Defendant-Appellee, v. CENTURY INDEMNITY COMPANY, successor in interest to CCI Insurance Company, successor in interest to Insurance Company of North America, Defendant-Counter-Claimant-Appellant.

    Docket No. 15-2164-cv
    August Term, 2015
    United States Court of Appeals, Second Circuit.
    Argued: May 5, 2016
    Decided: December 8, 2016

      JONATHAN HACKER, O’Melveny & Myers LLP (Daryn E. Rush, Ellen K. Burrows, White and Williams LLP, Philadelphia, PA, on the brief), Washington, D.C., for Defendant-Counter-Claimant^ Appellant.
    DAVID L. PITCHFORD, Pitchfórd Law Group LLC, New York, NY, for Plaintiff-Counter-Defendant-Appellee.
    STEVEN C. SCHWARTZ, Chaffetz Lindsey LLP (Peter R. Chaffetz, Gretta L. Walters, on the brief), New York, NY, for Aon Benfield U.S.; Guy Carpenter & Company, LLC; JLT Re (North America Inc.); and Willis Re Inc., as amicus curiae supporting Defendant-Counter-Claimant-Appellant.
    Before: POOLER, LIVINGSTON,-and CARNEY, Circuit Judges.

      . The Clerk of Court is respectfully directed to amend the caption as above.

   POOLER, Circuit Judge:

This appeal arises out of a dispute between Century Indemnity Company (“Century”) and Global Reinsurance Corporation of America (“Global”) over the extent to which Global is obligated to reinsure Century pursuant to certain reinsurance certificates. The ‘ United States District Court for the Southern District of New York (Loma G. Schofield, J.) held that the dollar amount stated in the “Reinsurance Accepted” section of the certificates unambiguously caps the amount that Global can be obligated to pay Century for both “losses” and “expenses” combined. Century contends that Global is obligated to pay expenses in addition to the amount stated in the “Reinsurance Accepted” provision and that, at a minimum, the district court erred in concluding that the certificates were unambiguous. Because this case presents an important question of New York law that the New York Court of Appeals has never directly addressed, we certify to the New York Court of Appeals the following question:

Does the decision of the New York Court of Appeals in Excess Insurance Co. v. Factory Mutual Insurance Co., 3 N.Y.3d 577 [789 N.Y.S.2d 461, 822 N.E.2d 768] (2004), impose either a rule of construction, or a strong presumption, that a per occurrence liability cap in a reinsurance contract limits the total reinsurance available under the contract to the amount of the cap regardless of whether the underlying policy is understood to cover expenses such as, for instance, defense costs?

BACKGROUND

Between 1971 and 1980, Century issued nine reinsurance certificates with Global. The certificates provided that Global would reinsure specified portions of general liability insurance policies that Century had issued to Caterpillar .Tractor Company. In such an arrangement, Century is known as the “ceding insurer” because it is “ceding” or spreading its risk of loss among one or more reinsurers.

Beginning in 1988, thousands of lawsuits were filed against Caterpillar alleging bodily injury resulting from exposure to asbestos. A coverage dispute then arose between Century-and Caterpillar, and both companies filed suit in Illinois seeking declaratory judgments concerning their obligations under the insurance policies. As a result of the Illinois litigation, Century became obligated to reimburse Caterpillar for defense expenses in addition to the indemnity limits of the policies. Global alleges that Century has already paid more than $60 million to Caterpillar and has agreed to pay an additional $30.5 million. Global further alleges that only about 10% of this amount represents what Century refers to as “loss,” whereas about 90% represents what Century refers to as “expenses.”

Century then sought reimbursement from Global for portions of its payments to Caterpillar pursuant to‘'the reinsurance certificates. One of those certificates, which the parties call “Certificate X,” provides in relevant part as follows:

[Global] [d]oes hereby reinsure [Century] in respect of [Century’s liability insurance policy with Caterpillar] and in consideration of the payment of the premium and subject to the terms, conditions, and amount of liability set forth herein, as follows: ...
Item 1 — Type of Insurance
Blanket General Liability, excluding Automobile Liability as original.
Item 2 — Policy Limits and Application
$1,000,000. each occurrence as original.
Item 3 — [Century] Retention
The first $500,000. of liability as shown in Item #2 above.
Item 4 — Reinsurance Accepted
$250,000. part of $500,000. eaclf occurrence as original excess of [Century’s] retention as shown in Item #3 above.
Item 5 — Basis
Excess of Loss.

App’x at 88. The certificate goes on to state that “the liability of [Global] specified in Item 4 above shall follow that of [Century] and, except as otherwise specifically provided herein, shall be subject in all respects to all the terms and conditions of [the underlying liability insurance policy].” App’x at 89. The certificate also provides that “[a]ll claims involving this reinsurance, when settled by [Century], shall be binding on [Global], who shall be bound to pay its proportion of such settlements, and in addition thereto, in the ratio that [Global’s] loss payment bears to [Century’s] gross loss payments, [Global’s] proportion of expenses ... incurred by [Century] in the investigation and settlement of claims or suits.” App’x at 89. Though not all of the certificates are in the record before us, the parties suggest that other eight certificates are materially similar.

In Global’s'view, the amount stated in the “Reinsurance Accepted” section caps the maximum amount that it can be obligated to pay for both loss and expenses combined. Thus, Global contends that the maximum amount that it can be required to pay under Certificate X is $250,000. Century contends that the amount stated in the “Reinsurance Accepted” provision applies' only to “loss” and that Global must pay all expenses that exceed that amount.

In the district court, Global moved for partial summary judgment seeking a declaration that its interpretation of the certificates was correct. The district court granted Global’s motion and held that- the certificates unambiguously capped Global’s liability for both losses and expenses. See Glob. Reins. Corp. of Am. v. Century Indem. Co., No. 13 Civ. 06577, 2014 WL 4054260, at *4-7 (S.D.N.Y. Aug. 15, 2014), reconsideration denied, 2015 WL 1782206 (S.D.N.Y. Apr. 15, 2015). In reaching this conclusion, the district court relied primarily on this Court’s decision in Bellefonte Reinsurance Co. v. Aetna Casualty & Surety Co., 903 F.2d 910 (2d Cir. 1990), which considered a similar reinsurance certificate. The Bellefonte court affirmed a judgment declaring that the reinsurers “were not obligated to pay ... any additional sums for defense costs over and above the limits on liability stated in the reinsurance certificates.” Id. at 910. The district court also relied on this- Court’s decision in Unigard Security Insurance Co., v. North River Insurance Co., 4 F.3d 1049 (2d Cir. 1993), which applied Belle-fonte to conclude that a reinsurer was “not liable for expenses beyond the stated liability limit in the [certificate.” Id. at 1071. Century timely appealed the district court’s grant of summary judgment to Global.

' DISCUSSION

We review the district court’s grant of summary judgment de novo and will affirm if “viewing the evidence in the light most favorable to the non-moving party, there is no genuine dispute as to any material fact,” Baldwin v. EMI Feist Catalog, Inc., 805 F.3d 18, 25 (2d Cir. 2015) (internal quotation marks and citation omitted).

In Bellefonte, we considered a reinsurance certificate that provided as follows:

Provision 1
Reinsurer does hereby reinsure Aetna (herein called the Company) in respect of the Company’s contract hereinafter described, in consideration of the payment of the premium and subject to the terms, conditions and amount of liability set forth herein, as follows[.]
Provision 2
Reinsurance Accepted
$500,000 part of $5,000,000 excess of $10,000,000 excess of underlying limits[.]
Provision 3
The Company warrants to retain for its own account the amount of liability specified above, and the liability of the Rein-surer specified above [i.e., amount of reinsurance accepted] shall follow that of the Company,
Provision 4
All claims involving this reinsurance, when settled by the Company, shall be binding on the Reinsurer, which shall be bound'to pay its proportion of such settlements, and in addition thereto, in the ratio that the Reinsurer’s loss payment bears to the Company’s gross loss payment, its proportion of expenses .incurred by the Company in the investigation and settlement of claims or suits[.]

903 F.2d at 911 (brackets in Provision 3 in original). The district court in Bellefonte had held that, under this certificate, the reinsurers “were not obligated to pay Aetna, any additional sums for defense costs over and above the limits on liability stated in the reinsurance certificates.” Id. at 910.

Aetna raised two arguments on appeal. First, Aetna argued that the third provision of-the certificate contained a “follow the fortunes” clause and that the “ ‘follow the fortunes doctrine’ of reinsurance law obligates a reinsurer to indemnify a reinsured for all of the reinsured’s defense expenses and costs, even when those expenses and costs bring the total amount to more than the explicit limitation on liability contained in ... [the] reinsurance certificate.” Id. at 912. Second, Aetna argued that the phrase “in addition thereto” in the fourth provision of the certificate “indicates that liability for defense costs is separate from liability for the underlying losses sustained by [the insured].” Id. at 913,

. We rejected both of Aetna’s arguments. First, we held that “allowing the ‘follow the fortunes’ clause to override the limitation on liability ... would strip the limitation clause and other conditions of all meaning.” Id. The “‘follow the fortunes’ clauses in .the certificates,” we reasoned, “are structured so that they coexist with, rather than supplant, the liability cap.” Id. “To construe .the certificates otherwise,” we held, “would effectively eliminate the limitation on the reinsurers’ liability to the stated amounts.” Id. (citation omitted).

Second, we rejected Aetna’s argument that the phrase “in addition thereto” in the fourth provision of the certificate indicated that liability for defense costs was separate from liability for the underlying losses sustained by the insured. We read the phrase “in addition to” “merely to differentiate the obligations for losses and for expenses.” Id. And, noting that-Provision 1 of the contract explicitly made reinsurance under the certificate “subject to the amount of liability set forth therein,” we held that the “in addition to” language “in no way exempts defense costs from the overall monetary limitation in the certificate.” Id. at 913-14.

These were the only two; arguments that were addressed in Bellefonte. Significantly, although we described the amount stated in the “Reinsurance Accepted” provision as an “explicit limitation on liability,” id. at 912, we never explained why this was so.

In Unigard, we again confronted the issue of a reinsurer’s liability for expenses. See 4 F.3d at 1070-71. There, the ceding insurer, North River, raised two arguments as to why the reinsurer, Unigard, was required to pay expenses that exceeded the “limits” of liability of the certificate. Id. First, North River noted that the certificate at issue contained a “follow the form” clause that was not considered in Bellefonte and argued that this clause required Unigard to pay expenses in excess of the policy limit. Id. at 1070. Second, North River argued that “past practices” demonstrated that Unigard “expected to pay expenses.” Id. at 1071.

As in Bellefonte, we again rejected the ceding insurer’s arguments. Regarding the argument based on the “follow the form” clause, we noted that the clause stated that the liability of the reinsurers would be subject to the terms and conditions of the underlying policy “except as otherwise provided by th[e] [certificate.” Id. at 1070 (emphasis omitted). We held that the certificate “otherwise provide[d] for the policy limits” because another provision of. the certificate, “like the certificate in Bellefonte, provide[d] that Unigard agreed tq reinsure North River ‘in consideration of the payment of the reinsurance premium and subject to the terms, conditions, limits of liability, and [certificate provisions set forth herein.’” Id. at 1071 (citation omitted). We noted that Bellefonte stated that “the limitation on liability provision capped the reinsurers’ liability under the [certificate” and that “[a]U other contractual language must be construed in light of that cap.” Id. at 1071 (quoting Bellefonte, 903 F.2d at 914). We also rejected as irrelevant Unigard’s expectations or past practices, holding that “Bellefonte’s gloss upon the written agreement is conclusive.” Id.

As noted, the district court in this case held that, under Bellefonte and Unigard, Global’s “total liability for both loss and expenses is capped at the dollar amount stated in the ‘Reinsurance Accepted’ section of each [c]ertificate.” Global, 2014 WL 4054260, at *5. The court concluded that the relevant language in the certificates at issue in this case was “nearly identical to the language” in Bellefonte. Id. The court rejected Century’s argument that Belle fonte was distinguishable on the ground that, here, the insurer on the underlying policies pay expenses above and beyond limits for loss, noting that, in Unigard, this court "followed the reasoning of Bellefonte when dealing with underlying, policies that pay expenses above and beyond the limits for loss.” Id. (citation omitted).

Century now argues, with the support of four large reinsurance brokers, that Bellefonte and Unigard were wrongly decided. See Appellant’s Br. at 13, 20; Brief for Aon Benfield U.S.; Guy Carpenter & Co., LLC; JLT Re (N. Am.) Inc.; and Willis Re Inc. as Amicus Curiae Supporting Appellant at 15-17 (hereinafter “Brief for Reinsurance Brokers”) (noting that'“Bellefonte and its progeny have been roundly criticized in the insurance industry”). Their argument is not without force. In particular, we find it difficult to understand the Bellefonte court’s conclusion that the reinsurance certificate in that case unambiguously capped the reinsurer’s liability for both loss and expenses. Looking only to the language of the certificate, we think it is not entirely clear what exactly the “Reinsurance Accepted” provision in Bellefonte meant. Evidence of industry custom and practice might have shed light on this question, but the Bellefonte court did not consider any such evidence in its decision, although it is unclear if any was presented.

The purpose of reinsurance is to enable the reinsured to “spread its risk of loss among one or more reinsurers.” Travelers Cas. & Sur. Co. v. Certain Underwriters at Lloyd’s of London, 96 N.Y.2d 583, 587, 734 N.Y.S.2d 531, 760 N.E.2d 319 (2001). If the amount stated in the “Reinsurance Accepted” provision is an absolute cap on the reinsurer’s liability for both loss and expénse, then Century’s payments of defense costs could be entirely unrein-sured. This seems to be in tension with the purpose of reinsurance. Further, Century and amici note that the premium Global received was “commensurate with its share of policy risk.” Appellant’s Br. at 10; see also Brief for Reinsurance Brokers at 8. Thus, under Certificate X, Global “received 50% of .the net (risk) premium” because it “reinsured a 50% part of the [underlying policy] risk,” Appellant’s Br, at 10 (internal quotation marks-omitted). Interpreting the “Reinsurance Accepted” provision as a cap for both losses and expenses, as we did in Bellefonte, could permit Global to receive 50% of the premium while taking on less than 50% of the risk.

Amici warn that continuing to follow Bellefonte could have “disastrous economic consequences” for the insurance industry. Brief for Reinsurance Brokers at 16. They contend that “potentially massive exposures to insurance companies throughout the industry would be unexpectedly unreinsured[,]” thereby, in amici’s view, “create a gaping hole in reinsurance for many companies, and potentially threaten some with insolvency.” Brief for Reinsurance Brokers at 16.

We find these arguments worthy of reflection. But there are other considerations as well. For example, the principle of stare decisis counsels against overruling a precedent of this Court, especially in cases involving contract rights, where “considerations favoring stare decisis are at their acme.” Kimble v. Marvel Entm’t, LLC, — U.S. —, 135 S.Ct. 2401, 2410, 192 L.Ed.2d 463 (2015) (italics and internal quotation marks omitted). Hére, reinsurers may have relied on this Court’s opinions in Bellefonte and Unigard in estimating their exposure and in setting appropriate loss reserves. If the interpretive rule set out in those opinions were to shift, such reinsur-ers would be exposed to unexpected claims beyond their current reserves. Granted, the ceding insurers who are now being required to cover defense costs they apparently never contemplated at the time the policies were issued may currently be experiencing the same shift in expectations, Nonetheless, the economic impact of a reversal of the Bellefonte-Unigard rule may counsel in favor of retaining the status quo.

Ultimately, as we noted in Unigard, “[t]he efficiency of the reinsurance industry would not be enhanced by giving different meanings to identical standard provisions depending upon idiosyncratic factors in particular lawsuits.” 4 F.3d at 1071, Our intention, therefore, is to seek the New York Court of Appeals as to whether a consistent rule of construction specifically applicable to reinsurance contracts exists; we express no view as to whether such a rule is advisable or what that rule should be. The interpretation of the certificates at issue here is a question of New York law that the New York Court of Appeals has a greater interest and greater expertise in deciding than do we, Accordingly, we conclude that it is prudent to seek the views of the New York Court of Appeals on this important question.

We may certify a question to the New York Court of Appeals where “determinative questions of New York law are involved .., for which no controlling precedent of the Court of Appeals exists.” See N.Y. Comp. Codes R. & Regs. Tit, 22, § 500.27(a), Global contends that the Court of Appeals’ decision in Excess Insurance Co. v. Factory Mutual Insurance Co., 3 N.Y.3d 577, 789 N.Y.S.2d 461, 822 N.E.2d 768 (2004) controls this case. We disagree.

In Excess, the Court of Appeals considered whether a reinsurer was obligated to pay expenses that exceeded the limit provided for in the reinsurance policy. Id. at 579, 789 N.Y.S.2d 461, 822 N.E.2d 768. In Excess, however, the parties agreed that the reinsurance policy contained a liability cap. See id. at 582, 789 N.Y.S.2d 461, 822 N.E.2d 768 (“[T]here is no dispute that the reinsurance agreements set the policy limit at $7 million per occurrence”). Having assumed that a such a cap existed, the Court of Appeals then followed Bellefonte and Unigmd to hold that subordinate clauses could not expand reinsurer liability “beyond the stated limit in the policy” because doing so-would “render meaningless the liability cap negotiated in the policy.” Id. at 583, 789 N.Y.S.2d 461, 822 N.E.2d 768. The Excess court never addressed, much less decided, the antecedent question of whether the stated limited represented an absolute coverage limit for losses and expenses combined, which is the question that is presented in this case. Moreover, in Excess, the Court of Appeals considered whether a reinsurer was required to cover the ceding insurer’s loss adjustment expenses — the costs of litigating with the insured — in excess of the policy limit, not whether á reinsurer was required to cover the insured’s own defense costs. Id. at 583-84, 789 N.Y.S.2d 461, 822 N.E.2d 768. But whether a reinsurer is responsible to reimburse the ceding insurer for the cost of litigating with the insured over the insured’s claim is a potentially different question than whether an insurer who has been held liable on the underlying policy for the expenses of’ defending claims against the insured may then demand that its reinsurers share their proportional cost of the underlying coverage. Thus, Excess is not controlling.

Although Excess does not directly control this case, the decision of the Court of Appeals to expand on our holding in Bellefonte and Unigard might fairly be taken to imply a rule of construction governing the interpretation of reinsurance policies. In other words, we are uncertain whether Excess imposes a rule (or, potentially, creates a rebuttable presumption) that, where a reinsurance contract is subject to a per occurrence liability cap, the cap limits the total reinsurance available regardless of whether the underlying insurance policy is understood to include expenses other than losses, for instance, defense costs. If Excess imposes a clear rule (or a presumption) with respect to these reinsurance policies, the rule would guide our interpretation of this and substantially similar policies. If, on the other hand, the standard rules of contract interpretation apply, we would construe each reinsurance policy solely in light of its language and, to the extent helpful, specific context. Because this is ultimately a determination to be made by New York, we certify the following question to the New York Court of Appeals:

Does the decision of the New York Court of Appeals in Excess Insurance Co. v. Factory Mutual Insurance Co., 3 N.Y.3d 577 [789 N.Y.S.2d 461, 822 N.E.2d 768] (2004), impose either a rule of construction, or a strong presumption, that a per occurrence liability cap in a reinsurance contract limits the total reinsurance available under the contract to the amount of the cap regardless of whether the underlying policy is understood to cover expenses such as, for instance, defense costs?

CONCLUSION

For the foregoing reasons and pursuant to New York Court of Appeals Rule 500.27 and Local Rule 27.2 of this Court, we certify the following question to the New York Court of Appeals:

Does the decision of the New York Court of Appeals in Excess Insurance Co. v. Factory Mutual Insurance Co., 3 N.Y.3d 577 [789 N.Y.S.2d 461, 822 N.E.2d 768] (2004), impose either a rule of construction, or a strong presumption, that a per occurrence liability cap in a reinsurance contract limits the total reinsurance available under the contract to the amount of the cap regardless of whether the underlying policy is understood to cover expenses such as, for instance, defense costs?

In certifying this question, we do not bind the Court of Appeals to the particular question stated. The Court of Appeals may modify the question as it sees fít and, should it choose, may direct the parties to address other questions it deems relevant. This panel will resume its consideration of this appeal after the disposition of this certification by the Court of Appeals.

It is hereby ORDERED that the Clerk of Court transmit to the Clerk of the New York Court of Appeals this opinion as our certificate, together with a complete set of the briefs, the appendix, and the record filed in this Court by the parties. The parties shall bear equally any fees and costs that may be imposed by the New York Court of Appeals in connection with this certification.

      , The certificates were entered into by Century’s predecessor in interest, the Insurance Company of North America, and Global’s predecessor in interest, the Constitution Reinsur-anee Corporation. For simplicity, we use the names of the current parties in interest: Century and Global.

      . Century suggests that later agreements modified the total dollar amounts covered by the reinsurance certificate. Such modifications do not affect the issues in this appeal.

      , The district court concluded that the substantive law of New York applies to this diversity action because Global is located in New York and because the certificates were issued in New York. See Global, 2014 WL 4054260, at *3-4. Neither party challenges this conclusion on appeal.

      . In Bellefonte, we described the "follow the fortunes” doctrine as "meaning that the rein-surer will follow the fortunes or be placed in the position of the insurer.” 903 F.2d at 912 (internal quotation marks and citation omitted), ."[T]he doctrine burdens the reinsurer with .those risks which the direct insurer bears under the direct insurer’s policy covering the original insured.” Id. (citation omitted).

      . Again, in Unigard, we described the amounts stated in the certificate as “limits” on liability, though we did not explain why this was so. See 4 F.3d at 1070.

      . The “follow the form” clause stated:
      The liability of Unigard shall follow that of North River and, except as otherwise provided by this [c]ertificate, shall be subject in all respects to all the terms and conditions of North River’s policy except such as may purport to create a direct obligation of Uni-gard to the original insured or anyone other than North River.

        Id. át 1055.

      . The provision at issue in Excess was titled "Limit,” as opposed to “Reinsurance Accepted.” 3 N.Y.3d at 580, 789 N.Y.S.2d 461, 822 N.E.2d 768.

      . The parties did not request certification. However, even where the parties do not request certification, "we are empowered to seek certification nostra sponte.” 10 Ellicott Square Court Corp. v. Mountain Valley Indent. Co., 634 F.3d 112, 125 (2d Cir. 2010) (italics omitted).


author: FUENTES, Circuit Judge.

text:
    Anthony J. CARROLL v. DELAWARE RIVER PORT AUTHORITY, Appellant
    No. 16-2492
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit L.A.R.. 34.1(a) November 18, 2016
    (Filed: December 12, 2016)
    Marisa J. Hermanovich, Esq., Matthew S. Wolf, Esq., Matthew S. Wolf, 1236 Brace Road, 2nd Floor, Cherry Hill, NJ 08034, Attorneys for Appellee
    Rufus A. Jennings, Esq., Carla P. Maresca, Esq., Deasey Mahoney & Valen-tini, 1601 Market Street, Suite 3400, Philadelphia, PA 19103, Attorneys for Appellant
    Before: AMBRO, SHWARTZ, and FUENTES, Circuit Judges
   OPINION OF THE COURT

FUENTES, Circuit Judge.

After the District Court denied Plaintiff Anthony J. Carroll’s motion for partial summary judgment and Defendant' Delaware River Port Authority’s motion for summary judgment, it certified the following legal question for our review: in a failure-to-promote discrimination suit under the Uniformed Services Employment and Reemployment Rights Act (“USER-RA,” 38 U.S.C. § 4301, et seq.), must a plaintiff plead and prove that he or she was objectively qualified for the position sought? We now answer that question in the negative. In our view, plaintiffs need not plead or prove that they are objectively qualified in order to meet their initial burden under USERRA; instead, employers may raise a plaintiff’s lack of qualifications as a nondiscriminatory justification for declining to promote the plaintiff, notwithstanding his or her military service.

I.

This case centers on Carroll’s employment at the Port Authority. Carroll was first hired by the Port Authority in 1989 as a police officer. Between 1989 and 2009, he was a member of the uniformed services in various capacities, including six years as a corpsman in the United States Navy and ten years as a member of the Pennsylvania National Guard. When not on active duty in the military, Carroll maintained his employment with the Port Authority, ascending to the rank of corporal in the Port Authority Police in 2004.

Carroll was again ordered to active duty in late 2008 and deployed to Iraq in early 2009, where he sustained injuries leading to such conditions as cervical spondylosis, degenerative disk disease, bilateral torn rotator cuffs, brain injury, and high-frequency hearing loss. Carroll returned to the United States in late 2009 and was in rehabilitation for his injuries until his honorable discharge in late 2013. Carroll has not worked for the Port Authority since he was deployed to Iraq in early 2009.

In October 2010 and October 2012, while on active duty but in rehabilitation, Carroll applied to the Port Authority for a promotion to the rank of sergeant. Although he was interviewed in both 2010 and 2012, he was not promoted on either occasion.

Carroll then sued the Port Authority under USERRA, alleging that he was not promoted to sergeant in 2010 or 2012 due to unlawful discrimination on the basis of his military service. After motion practice and discovery in the District Court, Carroll filed a motion for partial summary judgment — related to the 2012 promotion — and the Port Authority filed a motion for summary judgment on all claims. In so moving, the Port Authority argued that, to survive summary judgment, Carroll must raise a triable issue of fact on the question of whether he was objectively qualified for a promotion to sergeant. The District Court denied both motions for summary judgment and Carroll’s subsequent motion for reconsideration. The Port Authority then moved the District Court for an interlocutory appeal on the question of whether Carroll must plead and prove that he was objectively qualified for a promotion to sergeant in order to sustain his discrimination suit under USERRA. The Court granted the Port Authority’s motion and certified that question for appeal.

II.

The question presented is straightforward: in a failure-to-promote discrimination suit under USERRA, must a plaintiff plead and prove that he or she was objectively qualified for the position sought? The answer, we find, is equally straightforward: no.

Congress enacted USERRA in 1994 to, inter alia, “encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service.” To this end, USERRA prohibits the “deni[al] [of] initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of [a person’s] membership, application for membership, performance of service, application for service, or obligation [in a uniformed service].” When plaintiffs allege discrimination in violation of USERRA, courts apply a two-step burden shifting framework adapted from NLRB v. Transportation Management Corp.:

[A]n employee making a USERRA claim of discrimination [] bear[s] the initial burden of showing by a preponderance of the evidence that the employee’s military service was “a substantial or motivating factor” in the adverse employment action. If this requirement is met, the employer then has the opportunity to come forward with evidence to show, by a preponderance of the evidence, that the employer would have taken the adverse action anyway, for a valid reason.

The Port Authority seeks , to alter this framework by importing an additional requirement from other anti-discrimination statutes. According to the. Port Authority, USERRA plaintiffs must sustain their initial burden by demonstrating two facts by a preponderance of the evidence: (1) that they were objectively qualified for the position sought, and (2) that their military service was “a substantial or motivating factor” in the adverse employment action. In this case, for example, the Port Authority claims that Carroll was physically incapable of performing a sergeant’s duties due to his injuries and was therefore unqualified for the position. Under the Port Authority’s proposed framework, Carroll could not meet his initial burden under USERRA — even if he could show that his military service was “a substantial or motivating factor” — because he could not demonstrate that he was objectively qualified for the promotion to sergeant.

Carroll, on the other hand, contends that a plaintiffs objective qualifications are only relevant to the USERRA analysis after a plaintiff meets his or her initial burden. Once a plaintiff has shown that his or her military service was “a substantial or motivating factor” in the adverse employment action, Carroll argues, the employer may then advance non-discriminatory reasons — which may include a lack of qualifications — to show that the employer would have taken the adverse action anyway. In other words, Carroll asserts that a plaintiffs objective qualifications are certainly relevant, but they are an affirmative defense to be advanced by the employer, not an additional hurdle to be cleared by USERRA plaintiffs.

We find Carroll’s reading more persuasive. The statute is clear that an employer violates USERRA if a plaintiff’s “membership ... in the uniformed services is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership.” All courts of appeals interpreting USERRA have recognized this unambiguous language and held that a plaintiff meets his or ,her initial burden simply by showing that military service was “a substantial or motivating factor” in the adverse employment action. Indeed, this Court has so held on more than one occasion, albeit in non-precedential opinions. The clear implication of these uniform holdings is that plaintiffs need not plead or prove that they are objectively qualified in order to meet their initial burden under USERRA. Instead, it is incumbent on employers to raise a plaintiffs lack of -qualifications at the second step of our USERRA framework: an employer may argue, for example, that it would have taken the same employment actions absent a plaintiffs military service because he or she lacked the necessary qualifications for the position in question. This construction not only comports with the plain text of USERRA and holdings of courts of appeals, but also effects Congress’s intent to “clarify, simplify, and, where necessary, strengthen the [previous] veterans’ employment and reemployment rights provisions.”

-The Port Authority’s reliance on other anti-discrimination statutes does not alter our conclusion. For example, the Port Authority places much weight on the uncontroversial proposition that Title VII of the Civil Rights Act, the Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act (“ADEA”) have all been interpreted, under the McDonnell Douglas framework, to require an initial showing that the plaintiff is objectively qualified for the position sought. But the Transportation Management framework set forth above, rather than the McDonnell Douglas, framework, has been consistently applied to analyze USERRA claims. The Port Authority has not identified any case in which a plaintiff failed to meet his or her initial burden under the Transportation Management framework by failing tó plead and prove objective qualifications.

III.

For the foregoing reasons, we conclude that Carroll need not plead and prove that he was objectively qualified for the 2010 and 2012 promotions to sustain his USER-RA discrimination suit. The case will be remanded to the District Court for further proceedings consistent with, this Opinion.

      . The District Court had jurisdiction under 28 U.S.C. § 1331. We have appellate jurisdiction under 28 U.S.C. § 1292(b).

      . 38 U.S.C. § 4301(a)(1),

      . 38 U.S.C. § 4311(a),

      . 462 U.S. 393, 103 S.Ct, 2469, 76 L.Ed.2d 667 (1983), abrogated by Dir., Office of Workers’ Comp. Programs, Dep’t of Labor v. Greenwich Collieries, 512 U.S. 267, 114 S.Ct. 2251, 129 L.Ed.2d 221 (1994), In Transportation Management, the Supreme Court applied a two-step burden shifting framework in the context of the National Labor Relations Act, which prohibits the discharge of a worker based on his or her union activity. Id. at 401, 103 S.Ct. 2469,

        .Sheehan v. Dep’t of Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001) (utilizing the Transportation Management framework to analyze USERRA claims).

      . 38 U.S.C. § 4311(c)(1).

      . Angiuoni v. Town of Billerica, 838 F.3d 34, 39 (1st Cir. 2016); Bradberry v. Jefferson Cty., Tex., 732 F.3d 540, 547 (5th Cir. 2013); Bobo v. United Parcel Serv., Inc., 665 F.3d 741, 755 (6th Cir. 2012); Madden v. Rolls Royce Corp., 563 F.3d 636, 638 (7th Cir. 2009); Wallace v. City of San Diego, 479 F.3d 616, 624 (9th Cir. 2006); Maxfield v. Cintas Corp. No. 2, 427 F.3d 544, 551 (8th Cir. 2005); Coffman v. Chugach Support Servs., Inc., 411 F.3d 1231, 1239 (11th Cir. 2005); Hill v. Michelin N. Am., Inc., 252 F.3d 307, 312 (4th Cir. 2001); Sheehan, 240 F.3d at 1013; Gummo v. Vill. of Depew, N.Y., 75 F.3d 98, 106 (2d Cir. 1996).

      . See, e.g., Murphy v. Radnor Twp., 542 Fed. Appx. 173, 177 (3d Cir. 2013) (not precedential); Hart v. Twp. of Hillside, 228 Fed. Appx. 159, 162 (3d Cir. 2007) (not precedential).

      . See Madden, 563 F.3d at 638-39, (considering the employee’s lack of qualifications as part of the employer’s evidence at the second step of the USERRA analysis, not as part of the employee’s initial burden).

        . Gummo, 75 F.3d at 105 (quoting H.R. Rep. No. 65, 103d Cong., 2d Sess. 18 (1994)). As courts have explained, USERRA was enacted in 1994 to more broadly protect uniformed service members from discrimination. Id.; Sheehan, 240 F.3d at 1012-13. For example, the Supreme Court held in Monroe v. Standard Oil Co., 452 U.S. 549, 101 S.Ct. 2510, 69 L.Ed.2d 226 (1981), that liability for violations of the Vietnam Era Veterans' Readjustment Assistance Act (USERRA’s predecessor) was unfounded unless the employee’s reserve status was the sole motivation for the discriminatory conduct. In response, Congress passed USERRA and made clear "that a violation occurs when a person’s military service is a 'motivating factor' in the discriminatory action, even if not the sole factor.” Sheehan, 240 F.3d at 1013 (citing 38 U.S.C. § 4311(c)(1)); see also Gummo, 75 F.3d at 105. Our interpretation of USERRA today embraces this congressional objective.

        .See Burton v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013) (using the McDonnell Douglas framework to analyze Title VII and ADEA claims, including the requirement that a plaintiff show he or she was qualified for the position in question); Williams v. Phila. Horn. Auth. Police Dep't, 380 F.3d 751, 759 n.3, 761 (3d Cir. 2004) (using the McDonnell Douglas framework to analyze ADA claims, including the requirement that a plaintiff show he or she was "otherwise qualified to perform the essential functions of the job”).

      . See supra note 5.

      . See supra note 7.


author: TRAXLER, Circuit Judge:

text:
    INTERSTATE FIRE AND CASUALTY COMPANY, Plaintiff-Appellant, v. DIMENSIONS ASSURANCE LTD., Defendant-Appellee.
    No. 15-1801
    United States Court of Appeals, Fourth Circuit.
    Argued: September 23, 2016
    Decided: December 6, 2016

      ARGUED: Paulette Steffes Sarp, HIN-SHAW & CULBERTSON LLP, Minneapolis, Minnesota, for Appellant'. Robert Lawrence Ferguson, Jr., FERGUSON, SCHETELICH & BALLEW, P.A., Baltimore, Maryland, for Appellee. ON BRIEF: Suzanne L. Jones, HINSHAW & CULBERTSON LLP, Minneapolis, Minnesota; Robert C. Morgan, MORGAN, CARLO, DOWNS & EVERTON, P.A., Hunt Valley, Maryland, for Appellant.

      Before TRAXLER, SHEDD, and FLOYD, Circuit Judges,
   Vacated and remanded by published opinion. Judge TRAXLER wrote the opinion, in which Judge SHEDD and Judge FLOYD joined.

TRAXLER, Circuit Judge:

The question in this insurance coverage dispute is whether a nurse employed by a staffing agency and assigned to work at a hospital qualifies as an “employee” of the hospital under the hospital’s insurance policy. The district court answered that question in the negative and granted summary judgment to the hospital’s insurer. For the reasons set forth below, we vacate, the district court’s order and remand for further proceedings.

I.

A.

Favorite Healthcare Staffing (the “Agency”) is an employment agency that provides nurses and other health care professionals to Laurel Regional Hospital (the “Hospital”). The contract between the Agency and the Hospital (the “Staffing Agreement”) states that the Agency-provided practitioners assigned to the Hospital are the employees of the .Agency, not the Hospital.

Under the Staffing Agreement, the Hospital is responsible for “orient[ing] [Agency practitioners] to [their] job description responsibilities and all policies and procedures necessary to meet [Hospital] performance standards.” J.A. 25. The Hospital has the right under the Agreement to “float” Agency practitioners to areas to which they were not originally assigned and to immediately terminate any practitioner who refuses to float. The Agreement also gives the Hospital the right to “dismiss any Practitioner at any time if [the Hospital]-détermines that a Practitioner is unsatisfactory.” J.A. 28.

As' established through discovery, no Agency staff supervises the practitioners on site at the Hospital or provides inedical-care instructions to the practitioners. The Hospital dictates the type of care to be provided to' patients by Agency practitioners; whether Agency practitioners or direct-hire employees are involved, the Hospital expects' the same level of care to be provided to patients. If an Agency practitioner refuses to comply with Hospital directions, -the Hospital may immediately terminate the practitioner.

B.

Appellant Interstate Fire and Casualty Company issued a professional liability insurance policy to the Agency that covered doctors and nurses who" were employed by the Agency and placed by the Agency to work at various medical facilities. Appellee Dimensions Assurance Ltd., an insurance company wholly owned by the company that owns the Hospital, issued the Hospital the liability insurance policy (the “Policy”) at issue in this case.

The Policy provides coverage to the Hospital and to other persons or entities who meet its definitions of “protected person.” The Policy consists of three main parts, one providing coverage for “General Liability,” another providing coverage for “Hospital Professional Liability,” and another providing coverage for “Group Physicians Professional Liability.” J.A. 105-06.

The professional-liability section of the Policy includes multiple categories of persons and entities in its definition of “protected person,” including certain administrators and committee and board members. In a provision titled “Worker Protection,” this section of the Policy provides that

[The Hospital’s] present and former employees, students and authorized volunteer workers are protected persons tohile working or when they did work for you within the scope of their duties. Unless added by amendment to this Agreement, interns, externs, residents, or dental, osteopathic or medical doctors are not named protected persons for professional injury, even if they are your employees, students or authorized volunteer workers.

J.A. 134 (emphasis added).

Under the general-liability portion of the Policy, the “Worker Protection” clause extends “protected person” status to certain Hospital workers:

[The Hospital’s] present and former employees, students and authorized volunteer workers are protected persons while working, or when they did work for you within the scope of their duties. Persons working for you on a per diem, agency or contract basis are not protected persons.

J.A. 119 (emphasis added). The Policy does not define “employee,” nor does it incorporate or otherwise refer to the Staffing Agreement between the Agency and the Hospital.

C.

In 2012, a former patient brought a medical malpractice action (the “Underlying Action”) against the Hospital and several of its doctors and nurses. One of the defendants was Nurse Cryer, who had been placed by the Agency at the Hospital. Claiming that she was not an employee of the Hospital, Dimensions refused to defend Cryer. Interstate thereafter undertook to defend Cryer, ultimately settling the case against her for $2.5 million and incurring nearly $500,000 in defense costs.

Interstate subsequently filed this equitable contribution action against Dimensions in federal district court. Interstate alleged that, under the terms of the Policy, Nurse Cryer qualified as an employee of the Hospital and thus a “protected person” entitled to coverage under the Policy. Because the coverage provided by the Dimensions policy was primary and the coverage provided by the Interstate policy was “excess” in cases where there was other valid insurance coverage, Interstate alleged that Dimensions was responsible for the entire amount it paid to defend and settle the claims against Nurse Cryer.

The district court granted summary judgment in favor of Dimensions. Relying on the terms of the Staffing Agreement between the Hospital and the Agency, the district court held that Agency-provided workers were not employees within the meaning of the Policy. Interstate appeals, arguing that Nurse Cryer qualifies as an employee under the plain terms of the Policy and that the district court erred by looking to a separate contract between different parties to determine the meaning of the Policy.

II.

This insurance dispute, which falls within our diversity jurisdiction, is governed by the law of Maryland, where the action was filed and the insurance policy delivered. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941) (explaining that a federal court sitting in diversity must apply the choice of law principles of the forum state); Perini/Tompkins Joint Venture v. Ace Am. Ins. Co., 738 F.3d 95, 100 (4th Cir. 2013) (“In insurance contract disputes, Maryland follows the principle of lex loci contractus, which applies the law of the jurisdiction where the contract was made. For choice of law purposes, a contract is made where the last act is performed which makes the agreement a binding contract. Typically, this is where the policy is delivered and the premiums paid.” (internal quotation marks and citation omitted)).

Maryland courts interpret insurance policies “with the same principles and rules of construction ... use[d] to interpret other contracts.” Connors v. Gov’t Employees Ins. Co., 442 Md. 466, 113 A.3d 596, 603 (2015). “Unless there is an indication that the parties intended to use words in the policy in a technical sense, they must be accorded their customary, ordinary, and accepted meaning.” Maryland Cas. Co. v. Blackstone Int’l Ltd., 442 Md. 685, 114 A.3d 676, 681 (2015) (internal quotation marks omitted). Accordingly, “the written language embodying the terms of an agreement will govern the rights and liabilities of the parties, irrespective of the intent of the parties at the time they entered into the contract.” Long v. State, 371 Md. 72, 807 A.2d 1, 8 (2002) (internal quotation marks and alteration omitted).

There is no dispute that, if the other requirements of the Policy are satisfied, the claims asserted against Nurse Cryer in the Underlying Action fall within the scope of the professional-liability section of the Policy. The question, then, is whether Cryer qualifies as a protected person under that section of the Policy.

A.

Interstate argues on appeal that Nurse Cryer qualifies as a Hospital employee and therefore a protected person under the unambiguous provisions of the professional-liability section of the Policy. As Interstate points out, the Policy clearly excludes Agency-provided practitioners from its definition of “employee” in the general-liability portion of the Policy, but it does not exclude Agency-provided practitioners from the definition in the professional-liability section of the Policy, which is the section applicable to the claims at issue in this case. In Interstate’s view, the fact that the general-liability definition excludes Agency-provided practitioners while the professional-liability definition does not exclude them demonstrates that the Policy provides coverage for Nurse Cryer. The presence of this language in the general-liability section shows that Dimensions knew the Hospital was staffed by direct-hire and Agency-provided practitioners and that the word “employee” as used in the Policy includes direct-hire employees and Agency-provided practitioners. After all, if “employee” did not include Agency-provided practitioners, then there would have been no need to specifically exclude them from the general-liability definition of “protected person.” See Rigby v. Allstate Indem. Co., 225 Md.App. 98, 123 A.3d 592, 597 (Md. Ct. Spec. App. 2015) (noting the “basic principle of contract interpretation” that courts should “give effect to each clause of an insurance policy, and avoid treating either term, as surplusage” (internal quotation marks and citation omitted)); see also Gates, Hudson & Assocs., Inc. v. Fed. Ins. Co., 141 F.3d 500, 503 (4th Cir. 1997). (“Federal’s careful delineations of specific types of injuries at other points in the policy suggest that the insurer knew how to limit the term when it desired to do so.”).

We agree. Dimensions’ decision to use different language in different sections of the Policy when addressing the coverage available to “employees” must be understood as an intentional decision. Cf. NISH v. Cohen, 247 F.3d 197, 203-04 (4th Cir. 2001) (“The omission by Congress of language in one section of a statute that is included in another section of the same statute generally reflects Congress’s intentional and purposeful exclusion in the former section.”). Under' Maryland law, we must respect.this decision and apply the Policy in a way that gives effect to the full “Worker Protection” clause in the general-liability section and to the full “Worker Protection” clause in the professional-liability section. The only way to do that is, as Interstate argues, to conclude that the term “employee” as used in the Policy includes Agency-provided Hospital workers as well as direct-hire Hospital workers. Accordingly, because the professional-liability section of the Policy extends “protected person” status to Hospital workers without excluding Agency-provided workers, we conclude that Nurse Cryer is a protected person under the professional-liability section of the Policy.

Dimensions, however, insists that the Policy itself prevents us from considering the language of the general-liability section as a 'guide to the meaning of the professional-liability section of the Policy. The “General Rules” portion of the Policy states that each “agreement” (the three sections of the policy separately addressing coverage for general liability, hospital professional liability, and group physicians’ professional liability) must “be read and interpreted separately and independently of the other and no terms, conditions or exceptions from one agreement shall be construed to apply to any other agreement or provide a basis for interpretation of any other agreement.” J.A. 110 (emphasis added). Relying on this provision, Dimensions contends that this court may not look to the terms of the general-liability section to determine the scope of coverage provided under the professional-liability section.

We .need not decide whether the Policy provision operates in the manner urged by Dimensions. Even if we examine the professional-liability section of the Policy in isolation, without consideration of the terms of the other sections of the Policy, we still conclude that the Policy provides coverage for the claims asserted against Nurse Cryer.

B.

If we examine the professional-liability portion of the Policy alone, we are presented with, an insurance policy that provides coverage to Hospital “employees” but does not define the term. In the absence of a definition or other “indication that the parties intended to use words in the policy in a technical sense,” Lloyd E. Mitchell, Inc. v. Maryland Cas. Co., 324 Md. 44, 595 A.2d 469, 475 (1991), unambiguous policy language must be given its “customary, ordinary, and accepted meaning, as determined by the fictional reasonably prudent lay person,” Connors, 113 A.3d at 603 (internal quotation marks omitted).

A policy term “is not ambiguous simply because it is general in nature or undefined by the policy.” Walker v. Fireman’s Fund Ins. Co., 66 Md.App. 687, 505 A.2d 884, 886 (Md. Ct. Spec. App. 1986). Instead, a term “is considered ambiguous if, to a reasonably prudent person, the term is susceptible to more than one meaning.” Connors., 113 A.3d at 603 (internal quotation marks omitted). To determine whether a policy term is ambiguous, we look only to the policy itself; we may not look to extrinsic sources to create an ambiguity. See Univ. of Balt. v. Iz, 123 Md.App. 135, 716 A.2d 1107, 1121 (Md. Ct. Spec. App. 1998); cf. Schneider v. Continental Cas. Co., 989 F.2d 728, 731 (4th Cir. 1993) (“A court may not, where the contractual language is clear, invite or accept the submission of extrinsic evidence, ‘find’ ambiguity in the contractual text. based upon that evidence, and resolve the found ambiguity by resort to that extrinsic evidence.”).

Interstate contends that “employee” is an unambiguous term whose ordinary, customary meaning tracks the common-law right-to-control test used to determine the existence of-a master-servant relationship. See Whitehead v. Safway Steel Prods., Inc., 304 Md. 67, 497 A.2d 803, 808-09 (1985) (“This Court has traditionally considered five criteria in determining whether or not an employer/employee relationship exists between two parties. These criteria ... include (1) the power to select and hire the employee, (2) the payment of wages, (3) the power to discharge, (4) the power to control the employee’s conduct, and (5) whether the work is part of the regular business of the employer.”). Interstate also contends that the ordinary meaning of “employee” encompasses “borrowed” employees like Nurse Cryer, who are paid by one employer but work under the direct control of another. See, e.g., Temp. Staffing, Inc. v. J.J. Haines & Co., 362 Md. 388, 765 A.2d 602, 603 n.1 (2001).

We agree with Interstate that the undefined term “employee” is unambiguous. See C & H Plumbing & Heating, Inc. v. Employers Mut. Cas. Co., 264 Md. 510, 287 A.2d 238, 239-40 (1972) (finding no ambiguity in clause excluding coverage for dishonest or criminal act of “employee of the insured”); accord Interstate Fire & Cas. Co. v. Washington Hosp. Ctr. Corp., 758 F.3d 378, 387 (D.C. Cir. 2014) (policy providing coverage to all “employees” of hospital was unambiguous); Nationwide Mut. Fire Ins. Co. v. Guman Bros. Farm, 73 Ohio St.3d 107, 652 N.E.2d 684, 686 (1995) (“[T]he term ‘employee’ is not defined, but does have a plain and ordinary meaning.”). And we likewise agree with Interstate that the common and ordinary meaning of “employee” incorporates the right-to-control test. See Interstate Fire, 758 F.3d at 386-87 (applying common-law “right-to-control” test to define “employee” for purposes of insurance policy issued to hospital utilizing nurses, provided by staffing agency); see also Black’s Law Dictionary (10th ed. 2014)-(defining “employee” as “[s]ome-one who works in the service of another person (the employer) under an express or implied contract of hire, under which the employer has the right to control the details of work performance” (emphasis added)); Mutual Fire Ins. Co. v. Ackerman, 162 Md.App. 1, 872 A.2d 110, 113 (Md. Ct. Spec. App. 2005) (looking to Black’s to determine the ordinary meaning of an undefined term).

There can be no question that Nurse Cryer qualifies as an employee of the Hospital under the right-to-control test. In Whitehead v. Safway Steel Products, the Maryland Court of Appeals applied the right-to-control test to conclude that Saf-way was the employer of Whitehead, a worker who had been assigned to Safway by a temporary staffing agency: “Safway instructed Whitehead on the task to be performed, supervised his work, and was free to reassign him to any other duties that warranted attention; If Whitehead’s work was unsatisfactory, Safway was free to dismiss him and request an additional worker.” 497 A.2d at 809. The Hospital’s control over Cryer, as established by the undisputed evidence in the record, mirrors that of the staffing agency customer in Whitehead, and Nurse Cryer therefore is an employee of the Hospital as a matter of law. See id. (“[T]emporar[y workers] ... who work in employment circumstances similar to the one here present, are as a matter of law, employees of the customer”); see also Interstate Fire & Cas. Co., 758 F.3d at 386-87 (concluding that nurse paid by staffing agency and assigned to work at hospital was employee of hospital under insurance policy covering hospital “employees”).

Accordingly, we conclude that the provision in the professional-liability section of the Policy extending “protected person” status to “employees” of the Hospital is unambiguous. The plain and ordinary meaning of “employee” includes those who qualify as employees under the right-to-control test, and the evidence in the record establishes that Nurse Cryer qualifies as an employee of the Hospital under that test.

III.

Dimensions makes two arguments in support of its contrary reading of the Policy. It first argues that the term “employee” must be interpreted in light of the Staffing Agreement between the Hospital and the Agency. It also argues that Nurse Cryer qualifies as an “affiliated healthcare provider” under the terms of the Policy but fails to meet the requirements for coverage to extend to her in that capacity. We find neither of these arguments persuasive.

A.

Dimensions first contends that we should define “employee” as used in the Dimensions policy by reference to the Staffing Agreement between the Agency and the Hospital. Because the Staffing Agreement provides that Agency practitioners will be treated as the employees of the Agency, not the Hospital, Dimensions contends that Nurse Cryer does not qualify as an “employee” under the Policy.

Dimensions’ argument in this regard centers on Nurse Cryer’s status as a “borrowed” employee. Borrowed employees have two employers — a “general” employer, who essentially loans the employee to a borrowing or “special” employer. See Lovelace v. Anderson, 366 Md. 690, 785 A.2d 726, 741 (2001) (noting “the settled principle of Maryland law that a worker may simultaneously be the employee of two employers” (internal quotation marks and alteration omitted)); Temp. Staffing, 765 A.2d at 603 n.1 (“A general employer is an employer who transfers an employee to another employer for a limited period. A special employer is an employer who has borrowed an employee for a limited period and has temporary responsibility and control over the employee’s work.”). In this case, the Agency is Nurse Cryer’s general employer, and the Hospital is her special employer. See id. (“A temporary employment company is a general employer and the company to which an employee is assigned is a special employer.”).

As between the general and special employee, liability for the employee’s act (or for the employee’s worker’s compensation claim) turns on whose work is being done and who can control that work:

[Wjhere the work to be done is the borrower’s work, and a part of his business, and he has the power and authority to direct when and where and how it shall be done, and where the work is not within the scope of the general employment of the servant, it may fairly be said that so far as that work is concerned he is under the control of the borrower and that the latter will be responsible for his negligent acts.

Dippel v. Juliano, 152 Md. 694, 137 A. 514, 517 (1927); see Standard Oil Co. v. Anderson, 212 U.S. 215, 220, 29 S.Ct. 252, 53 L.Ed. 480 (1909) (“One may be in the general service of another, and, nevertheless, with respect to particular work, may be transferred ... to the service of a third person, so that he becomes the servant of that person, with all the legal consequences of the new relation.”). However, if the general employer and special employer have entered into a contract assigning liability to one of the parties, courts will give effect to that contract. See Temp. Staffing, 765 A.2d at 611 (directing workers’ compensation commission to consider contract between co-employers when assigning liability for benefits, for injured employee); Hercules Powder Co. v. Harry T. Campbell Sons Co., 156 Md. 346, 144 A. 510, 518 (1929) (reversing jury verdict in favor of special employer where contract between general and special employer assigned liability for employee’s negligence to special employer); see also Sea Land Indus., Inc. v. Gen. Ship Repair Corp., 530 F.Supp. 550, 563 (D. Md. 1982) (“[U]nder Maryland law, whatever the status of an employee under the ‘borrowed servant’ doctrine, the parties may allocate between themselves the risk of any loss resulting from the employee’s negligent acts.”).

It is on the latter point that Dimensions pegs its argument. In Dimensions’ view, a contract between a special employer and general employer assigning liability for the borrowed employee is determinative of the “who is an employee?” question, wherever that question might arise. See Brief of Appellee at 4 (stating that the Staffing Agreement “should apply to any borrowed servant analysis whether it is made in the context of a lawsuit between the borrowing and lending employer or any other entities”). Pointing to cases such as NVR, Inc. v. Just Temps, Inc., 31 Fed.Appx. 805 (4th Cir. 2002) (per curiam) (unpublished), Dimensions argues that the Staffing Agreement “controls the employee’s status,” Brief of Appellee at 19, which makes the right-to-eontrol or borrowed-servant analysis “irrelevant,” id. at 17. And because the Staffing Agreement provides that Nurse Cryer is the Agency’s employee and that the Agency will be liable for her negligent acts, Dimensions contends that Nurse Cryer is not a Hospital employee under the Policy. We disagree.

The cases on which Dimensions relies establish simply that the existence of a liability-assigning contract makes it unnecessary. to apply the right-to-control test in a dispute between the parties to that contract. See NVR, 31 Fed.Appx. at 807 (“Under Maryland law, in cases like this one between a general employer and a borrowing employer, ,.. the parties may allocate between themselves the risk of any loss resulting from the employee’s negligent acts.” (internal quotation marks omitted; emphasis added)); Sea Land, 530 F.Supp. at 563 (“[W]hatever the status of an employee under the ‘borrowed servant’ doctrine, the parties may allocate between themselves the risk of any loss resulting from the employee’s negligent acts.” (emphasis added)). Nothing in these cases supports Dimensions’ assertion that the terms of the Staffing Agreement, a contract to which neither Dimensions, Interstate, nor Nurse Cryer were parties, determine the scope of the entirely separate insurance contract issued by Dimensions to the Hospital or diminish the protection provided to Cryer by the Policy. See Mayor of Baltimore ex rel. Lehigh Structural Steel Co. v. Maryland Cas. Co., 171 Md. 667, 190 A. 250, 253 (1937) (“It seems axiomatic that persons are only bound by the contracts they make, and are not bound by contracts they do not make....”).

Accepting Dimensions’ argument that the Staffing Agreement controls the meaning of the Policy would be inconsistent with Maryland principles of contract interpretation. As we have concluded, the Policy is not ambiguous, despite its failure to define “employee.” Maryland law therefore requires us to look only to the Policy itself and to interpret it as written. See 100 Inv. Ltd. P’ship v. Columbia Town Ctr. Title Co., 430 Md. 197, 60 A.3d 1, 22 (2013) (“[O]ur search to determine the meaning of the contract is focused on the four corners of the agreement. When the clear language of a contract is unambiguous, the court will give effect to its plain, ordinary, and usual meaning, taking into account the context in which it is used.....” (internal quotation marks, citation, and internal alteration omitted)); Ray v. State, 230 Md. App. 157, 146 A.3d 1157, 1174 (Md. Ct. Spec. App. 2016) (“[E]xtrinsic sources of evidence that may be helpful in resolving an ambiguity, ivhen it actually exists, may not be used to create an ambiguity in the first instance”). Dimensions, however, contends we should look beyond the Policy and define its unambiguous terms not in accordance with their ordinary meaning, but in accordance with the terns of a wholly separate and independent contract. Because that argument is inconsistent with Maryland law, we are obliged to reject it.

The common, ordinary meaning of “employee” incorporates the right-to-control test — that is, one who works in the service of another who has the right to control the details of the work is the employee of the entity with the right to control. By arguing that the Staffing Agreement controls the “employee” question, Dimensions is, in effect, arguing that the common, ordinary meaning of “employee” includes a footnote that carves out those workers who would otherwise qualify as employees but. are the subject of a contract placing liability for them on someone other than the entity with the right to control. We disagree. As Maryland courts have made clear, “the words of insurance contracts [must be given] their customary, ordinary, and accepted meaning, as determined by the fictional ‘reasonably ‘prudent lay person.’” Connors, 113 A.3d at 603 (emphasis added). Lay persons do not generally footnote their words, and we decline to append Dimension’s proposed footnote to the common meaning of “employee.” Whether or not liability for the employee has been assigned by contract between co-employers, the common, ordinary meaning of “employee” is one who works in the service of and subject to the direction and control of another.

In addition to being inconsistent with Maryland principles of .contract interpretation, Dimensions’ claim that the Staffing Agreement controls is also largely foreclosed by this court’s decision in Travelers Property Casualty Co. v. Liberty Mutual Insurance Co., 444 F.3d 217 (4th Cir. 2006). In Travelers, State Street Bank hired Ryland Mortgage Company to service and manage mortgage loans held by State Street and to manage any properties State Street took over through foreclosure. By contract, Ryland was obligated to indemnify State Street for any claims arising from Ryland’s management of the loans and property. A visitor to a foreclosed property was injured and sued State Street and Ryland. Ryland was insured by Travelers, and State Street was insured by Liberty Mutual, Travelers provided a defense to Ryland and subsequently sought contribution from Liberty Mutual, arguing that Ryland was an additional insured under the policy issued to State Street.

On appeal, we agreed with Travelers that Ryland was covered by the Liberty Mutual policy. The Liberty Mutual policy included State Street’s “real estate managers” as additional insureds, and Ryland’s contractual duties qualified it as a real estate manager. See id. at 221-22. Liberty Mutual, therefore, had an “independent contractual obligation to provide coverage to Ryland.” Id. at 219. And because Liberty Mutual had an independónt duty to provide coverage to Ryland, the "indemnification agreement between Ryland and State Street was irrelevant:

The issue here is coverage for only Ryland’s liability. Travelers concededly insured Ryland, and because of Liberty Mutual’s insuring language, it must also insure Ryland through its additional insureds clause. This is not a case where we are determining State Street’s liability vis-a-vis Ryland’s. The fact that By-land agreed to indemnify State Street under the Pooling Agreement does not absolve Liberty Mutual of its independent contractual obligation to insure Ryland as State Street’s “real estate manager,” If the issue in this case turned on the underlying liability as between Ryland and State Street, we would likely conclude, as Liberty Mutual urges, that Ryland bore full responsibility because of its indemnification agreement, But even then, having determined that Ryland had legal responsibility for [the injuries to the property-visiting plaintiff], we would still have to determine who insured that liability. In this case Travelers concededly provided coverage, as it issued a policy directly to Ryland as the named insured. But Liberty Mutual, which issued a policy to State Street as its named insured, also provided coverage to additional insureds, not because of any indemnity clause running in favor of its insured State Street but because of its independent undertaking to Ryland. . .
Thus, because we are deciding coverage for only Ryland’s liability to [the property-visiting plaintiff], the indemnification agreement is irrelevant.

Id. at 224-25 (emphasis added).

As in Travelers, this case involves only the question of coverage for Nurse Cryer under the policy issued by Dimensions. The Agency and the Hospital are not parties to this action, and there is no issue before this court regarding indemnification or liability as between the Hospital and the Agency. It may well'be that the primary purpose of the Dimensions policy was to provide insurance coverage for the Hospital and its direct-hire employees. Nonetheless, the policy that Dimensions chose to issue used language whose ordinary meaning includes Agency-provided employees as additional insureds. See United Servs. Auto. Ass’n v. Riley, 393 Md. 55, 899 A.2d 819, 833 (2006) (“Courts in Maryland follow the law of objective interpretation of contracts, giving effect to the clear terms of the contract regardless of what the parties to the contract may have believed those terms to mean.” (internal quotation marks omitted)). Thus, whether or not, the Hospital intended to provide insurance for Agency-provided employees, Dimensions, by virtue of the policy that it issued, has an “independent obligation to insure [Cryer] as an additional insured.” Travelers, 444 F.3d at 224. And as we made clear in Travelers, the contract between the Hospital and the Agency simply has no impact on Dimension’s independent obligation to provide the coverage undertaken in the policy. See id. at 224-25.

‘ Therefore, for the reasons set out above, we conclude that Nurse’Cryer qualifies as an “employee” of the Hospital under the unambiguous language of the Policy, notwithstanding the contrary language of the Staffing Agreement.

B.

Dimensions also contends that the Policy’s “affiliated health care provider” (“Affiliated Provider”) clause operates to exclude Nurse Cryer from coverage under the Policy.

The professional-liability section of the Policy extends protected-person status (and therefore coverage) to “affiliated health care providers” under certain circumstances. Under the Policy,

An Affiliated Health Care Provider means any natural person or organization [1] in the business of rendering health care services directly to the general public, and [2] who or which has an agreement to provide such services in conjunction with those provided by [the Hospital]. Affiliated Health Care Providers are included as Protected Persons only when [3] a written partnership or physician affiliation agreement specifically designates the Affiliated Health Care Provider[ ] as a Named Protected Person -under this Agreement. Agencies providing clinical and other services on a per diem or contracted basis are not protected persons under this agreement.

J.A. 133.

Dimensions contends that Nurse Cryer meets the definitional requirements of the Affiliated Provider clause under the Policy. According to Dimensions, Nurse Cryer provides medical care directly to the public, thus satisfying the first Affiliated Provider requirement. And Nurse Cryer was providing those medical services at the Hospital through a contract with the Agency, thus satisfying the second Affiliated Provider requirement. Dimensions therefore contends that Nurse Cryer qualifies as an Affiliated Provider. An Affiliated Provider is a Protected Party, however, only if the third requirement is satisfied— there must be a contract expressly designating the Provider as protected. Because there is no such contract in this case, Dimensions contends that Nurse Cryer is an Affiliated Provider who is not a Protected Person under the Policy.

In our view, the Affiliated Provider clause cannot carry the meaning assigned to it by Dimensions. If Dimensions’ reading of the clause were correct, then all of the Hospital’s medical-care-providing employees, whether direct-hire or contract, would qualify as Affiliated Providers. If Nurse Cryer is “in the business of rendering health care services directly to the general public,” J.A. 133, then so are direct-hire nurses and direct-hire or contract doctors. And if Nurse Cryer’s contract with the Agency, or any implied contractual agreement she might have had with the Hospital itself, satisfies the requirement for an “agreement to provide [health care] services in conjunction with those provided by [the Hospital],” J.A. 133, then the contracts between the Hospital and its direct-hire care-providing employees would satisfy the requirement as well.

Thus, under Dimensions’ argument, all of the Hospital’s care-providing employees, whether contract or direct-hire, would qualify as Affiliated Providers. All of those employees would be precluded from Protected Person status (and therefore not insured under the Policy) for the same reason that Dimensions contends Nurse Cryer is not protected — the absence of a “written ... agreement specifically designating] the Affiliated Health Care Provided ] as a Named Protected Person under this Agreement.” J.A. 133.

The “Worker Protection” clause contained in the hospital-liability section of the Policy explicitly extends Protected Person status to the Hospital’s “present and former employees, students and authorized volunteer workers,” J.A. 134, without conditioning that status on the existence of a separate contract designating them as protected. Because Dimensions’ reading of the Affiliated Provider clause would render illusory the coverage provided by the “Worker Protection” clause, we must reject it. See Cochran v. Norkunas, 398 Md. 1, 919 A.2d 700, 710 (2007) (“[A] contract must be construed in its entirety and, if reasonably possible, effect must be given to each clause so that a court will not find an interpretation which casts out or disregards a meaningful part of the language of the writing unless no other course can be sensibly and reasonably followed.” (emphasis added and internal quotation marks omitted)); Kelley Constr. Co. v. Washington Suburban Sanitary Comm’n, 247 Md. 241, 230 A.2d 672, 676 (1967) (“[T]he courts will prefer a construction which will make the contract effective rather than one which will make it illusory or unenforceable.” (internal quotation marks omitted)). Instead, we must read the Affiliate Provider clause in a way that preserves the coverage provided in the Worker Protection clause. See Rigby, 123 A.3d at 597 (explaining that courts should “give effect to each clause of an insurance policy, and avoid treating either term as surplusage” (internal quotation marks and citation omitted)).

As quoted above, the Policy defines Affiliated Provider as a “natural person or organization in the business of rendering health care services directly to the general public, and who or which has an agreement to provide such services in conjunction with those provided by [the Hospital].” J.A. 133. The phrase “in conjunction with” means “in combination with” or “together with,” see www.Merriam-Webster.com (saved as ECF opinion attachment), which demonstrates that the clause contemplates the provision of health care services in addition to those services already being provided by the Hospital. Thus, the clause is directed to entities that provide medical services to the public independently of the Hospital and agree to provide those services together with the services provided by the Hospital. (For example, a medical specialist with an independent practice who agrees to affiliate with the Hospital would qualify as an Affiliated Provider.)

So understood, it is clear that Hospital employees (whether contract or direct-hire) do not qualify as Affiliated Providers. The Hospital provides its medical services through its workers, be they contract or direct-hire. The workers do not provide medical services directly to the public, but only to the Hospital’s patients, and only on the terms dictated by the Hospital. Hospital workers thus are not providing health care services in addition to or alongside the health care services provided by the Hospital; they are the ones providing the Hospital’s health care services in the first instance. Because the Hospital cannot act in concert with itself, a Hospital worker cannot be said to be providing health care services “in conjunction with” the Hospital, as the Policy requires to qualify as an Affiliated Provider.

That the Affiliated Provider clause is directed to independent entities rather than Hospital workers is confirmed by the clause’s requirement of “a written partnership or physician affiliation agreement” designating the Affiliated Provider as a named insured under the Policy. J.A. 133 (emphasis added). This language describes the kind of contract that the Hospital would enter into with an independently operating medical business, not with its employees.

Accordingly, we conclude that Hospital workers, whether contract or direct hire, do not meet, the definitional requirements of an Affiliated Provider under the terms of the Policy. We therefore reject Dimensions’ claim that the Affiliated Provider clause operates to preclude coverage under the Policy for Nurse Cryer.

IV.

To summarize, we conclude that the term “employee” as used in the Dimensions Policy is not ambiguous and that it includes those workers who qualify as employees under the right-to-eontrol test. Dimensions therefore has an independent obligation to provide coverage to those workers who meet the definition of “employee,” without regard to how those workers may be classified under the Staffing Agreement executed by the Hospital and the Agency. Because the evidence contained in the record establishes that Nurse Cryer is the Hospital’s employee under the right-to-control and the borrowed-servant standards, she is a “protected person” who qualifies for coverage under the professional-liability portion of the Dimensions Policy.

We therefore vacate the district court’s opinion granting summary judgment in favor of Dimensions, and we remand for further proceedings consistent with this opinion.

VACATED AND REMANDED.

       Although we may not look to extrinsic evidence to determine the meaning of unambiguous language contained in an insurance policy, we must look to the actual facts of the case to determine whether they are sufficient to trigger the coverage provided by the policy. That is, while we may not consider the Staffing Agreement when determining the meaning of the term "employee” under the Policy, we iriüst look to the facts established through discovery to determine whether Nurse Cryer qualifies as an "employee” as we have defined it. As to that question, the level of control given to the Hospital through the Staffing Agreement is a relevant and proper consideration. See, e.g., Interstate Fire & Cas. Co. v. Washington Hosp. Ctr. Corp., 758 F.3d 378, 384 (D.C. Cir. 2014) (concluding that "employee" was unambiguous term encompassing the right-to-control test and then considering contractual level of control to determine whether nurse qualified as an employee under the right-to-control test).