Naylor Concrete Constr., Co., Inc. v. Mid-Continent Cas. Co. ( 2014 )


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  • An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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    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
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    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.”
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    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
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    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
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    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).