PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 10-3833

______

ILLINOIS NATIONAL INSURANCE COMPANY,

Appellant

v.

WYNDHAM WORLDWIDE OPERATIONS, INC.;

WYNDHAM WORLDWIDE CORPORATION;

WYNDHAM VACATION OWNERSHIP, INC.; and

WYNDHAM RESORT DEVELOPMENT CORPORATION

______

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-09-cv-01724)

District Judge: Honorable Garrett E. Brown, Jr.

______

Argued May 24, 2011

Before: FUENTES, FISHER

and NYGAARD, Circuit Judges.

(Filed: August 03, 2011)
2

Jeffrey W. Dillon

Andrew T. Houghton (Argued)

Timothy D. Kevane

Aaron F. Mandel

Sedgwick

125 Broad Street, 39th Floor

New York, NY 10004

Counsel for Appellant

Eric Jesse

Michael D. Lichtenstein (Argued)

Lowenstein Sandler

65 Livingston Avenue

Roseland, NJ 07068

Christopher S. Porrino

Lowenstein Sandler

6 Becker Farm Road

Roseland, NJ 07068

Counsel for Appellees

______

OPINION OF THE COURT

______

FISHER, Circuit Judge.

Appellant Illinois National Insurance Company 

(“Illinois National”) and Appellees Wyndham Worldwide 

Operations, Inc., Wyndham Worldwide Corporation, 
3

Wyndham Vacation Ownership Inc., and Wyndham Resort 

Development Corporation (collectively “Wyndham”) are in a 

contract dispute over insurance coverage. In resolving this 

dispute, we must decide whether the doctrine of mutual 

mistake allows reformation of a contract against a party that 

did not participate in the negotiations.

Illinois National filed suit seeking a declaratory 

judgment that a 2008 plane crash did not trigger coverage 

under an aircraft fleet insurance policy that it issued to Jet 

Aviation Business Jets, Inc. (“Jet Aviation”). Wyndham filed 

a counterclaim seeking coverage and filed motions for 

summary judgment and to dismiss Illinois National‟s 

complaint. The United States District Court for the District of 

New Jersey granted Wyndham‟s motion to dismiss Illinois 

National‟s complaint as well as Wyndham‟s motion for 

summary judgment on its counterclaim. On appeal, Illinois 

National argues that the District Court erred both when it 

determined that mutual mistake can only serve as a basis for 

reformation in an action against a bargaining party and when 

it held that Illinois National had insufficiently pled mutual 

mistake. We agree and hold that New Jersey law allows 

reformation on the basis of mutual mistake against a party 

that did not participate in the negotiation of a contract and 

that Illinois National sufficiently pled mutual mistake.

For the following reasons, we conclude that the 

District Court‟s grant to Wyndham of summary judgment was 

improper, as was its dismissal of Illinois National‟s 

complaint. Accordingly, we will reverse the District Court‟s 

grant of summary judgment and dismissal and remand for 

further proceedings consistent with this opinion.
4

I.

A.

Illinois National issues insurance products and 

services. Jet Aviation offers aircraft maintenance, 

completions and refurbishment, engineering, and fixed base 

operations, along with aircraft management, charter services, 

aircraft sales and personnel services. Wyndham is a 

recognized service leader in the hospitality industry.

Illinois National provided insurance coverage to Jet 

Aviation and to some of Jet Aviation‟s clients, so long as Jet 

Aviation managed the client‟s aircraft and aircraft usage. Jet 

Aviation managed an aircraft owned by Wyndham and 

provided insurance for that aircraft pursuant to the terms of a 

series of Aircraft Management Services Agreements.

In 2001, Wyndham‟s predecessor, Cendant 

Operations, Inc., and Jet Aviation entered into the first of 

these Aircraft Management Services Agreements. Among 

other things, the agreements obligated Jet Aviation to provide 

domestic flight planning and scheduling, flight crew staffing, 

and management of scheduled and unscheduled maintenance 

for Wyndham‟s aircraft. If Wyndham‟s aircraft was not 

available when needed, Jet Aviation could arrange for an 

aircraft for Wyndham‟s use from another source. Pursuant to 

the Aircraft Management Services Agreements, Jet Aviation 

agreed to procure insurance for Wyndham‟s aircraft while it 

was managed by Jet Aviation. The agreement also stated that 

it would provide Wyndham with insurance coverage when 
5

Wyndham used non-owned aircraft at the direction of Jet 

Aviation.

For successive one-year periods beginning in 2004, 

and through the 2008 policy year, a series of aircraft fleet 

management insurance policies were purchased by Jet 

Aviation and issued by Illinois National. Each was 

negotiated by Illinois National and Jet Aviation, directly and 

through their agents. The policies contained endorsements 

that provided coverage for Jet Aviation‟s clients. These 

clients were identified on the endorsements as “Insured 
6

Owners” and also as “Named Insured.”1 The 2004-2007 

Policies contain the following Managed Aircraft 

Endorsement:

 

1

The Managed Aircraft Endorsement from 2004-2008 

stated:

1) Jet Aviation Business Jets, Inc. 

has entered into an Aircraft 

Management Agreement with the 

person(s) or organization(s) 

described below and referred to as 

“Insured Owner”:

Wyndham Worldwide Operations, Inc., Wyndham

Worldwide Corporation & Bank of America, N.A., as 

Lessor

7 Sylvan Way

Parsippany, NJ 07504

And/or subsidiary (and/or subsidiary 

thereof).

2) The definition of Named Insured is 

extended to include the person(s) or 

organization(s) described in Item 1 of 

this endorsement.
7

4) The insurance afforded by this policy for 

the interest of the “Insured Owner” 

described in Item 1. of this endorsement 

shall not be invalidated by any act or 

neglect of Jet Aviation Business Jets, 

Inc. listed in Item 1 of the policy 

Declarations provided that the “Insured 

Owner” described in Item 1. of this 

endorsement did not consent to such act 

or neglect which would otherwise 

invalidate the insurance provided by this 

policy or that the “Insured Owner” 

described in Item 1. of this endorsement 

had no knowledge that such act or 

neglect to which they consented would 

invalidate the insurance provided by this 

policy.

The insurance afforded by this policy for 

the interest of the Jet Aviation Business 

Jets, Inc. listed in Item 1 of the policy 

Declarations shall not be invalidated by 

any act or neglect of the “Insured 

Owner” described in Item 1. of this 

endorsement provided that the Named 

Insured listed in Item 1. of the policy 

Declarations did not consent to such act 

 

(App. at A471 (2004 Policy, with Cendant listed because 

Wyndham had not yet been spun off); (Id. at A1235 (2008 

Policy).).)
8

or neglect which would otherwise 

invalidate the insurance provided by this 

policy.

5) The insurance afforded by this policy for 

the interest of the “Insured Owner” 

described in Item 1 of this endorsement 

or Jet Aviation Business Jets, Inc. (as 

fully described in Item 1 of the 

Declarations Page) is extended to other 

Aircraft insured under this policy but 

excluding any Non-Owned Aircraft 

unless such Non-Owned Aircraft is 

operated by or used at the direction of Jet 

Aviation Business Jets, Inc. . . . 

(App at. A471.)

In the negotiations leading up to the 2008 policy, Jet 

Aviation proposed new language for the endorsement. The 

revised endorsement, which was integrated into the 2008 

policy, replaced “Jet Aviation” with “Named Insured.” It 

provided:

4) The insurance afforded by this policy for 

the interest of the “Insured Owner” 

described in Item 1. of this endorsement 

shall not be invalidated by any act or 

neglect of the Named Insured listed in 

Item 1 of the policy Declarations 

provided that the “Insured Owner” 

described in Item 1. of this endorsement 
9

did not consent to such act or neglect 

which would otherwise invalidate the 

insurance provided by this policy or that 

the “Insured Owner” described in Item 1. 

of this endorsement had no knowledge 

that such act or neglect to which they 

consented would invalidate the insurance 

provided by this policy.

The insurance afforded by this policy for 

the interest of the Named Insured listed 

in Item 1 of the policy Declarations shall 

not be invalidated by any act or neglect 

of the “Insured Owner” described in Item 

1. of this endorsement provided that the 

Named Insured listed in Item 1. of the 

policy Declarations did not consent to 

such act or neglect which would 

otherwise invalidate the insurance 

provided by this policy.

5) The insurance afforded by this policy for 

the interest of the “Insured Owner” 

described in Item 1. of this endorsement 

or Named Insured (as fully described in 

Item 1 of the Declarations Page) is 

extended to other Aircraft insured under 

this policy but excluding any NonOwned Aircraft unless such Non-Owned 

Aircraft is operated by or used at the 

direction of the Named Insured. . . .
10

(Id. at A1235.)

Jet Aviation and Illinois National claim that the 

drafting change was designed to make it more clear that 

entities affiliated with Jet Aviation were covered. Both 

contracting parties have stated that they believed that it did 

not expand coverage to entities that were unaffiliated with Jet 

Aviation, such as Wyndham. However, the modification, as 

written, appears to provide third parties with coverage when 

using non-owned aircraft without Jet Aviation‟s involvement.

Despite being drafted to seemingly provide expanded 

coverage, Wyndham‟s premium declined from $61,250 for 

the 2007 policy to $45,367 for the 2008 policy. Wyndham 

did not know about the change made to the endorsement for 

2008 and continued to obtain non-owned aircraft liability 

coverage through a policy issued by StarNet Insurance 

Company (“StarNet”).2

It is undisputed that neither Wyndham nor its brokers 

was involved in the negotiations or drafting of the revised 

provisions of the endorsement. It was negotiated between 

Illinois National and Jet Aviation.

In August 2008, Jason Ketcheson, a Wyndham 

employee, rented a Cessna 172 from Aviation Adventures to 

travel to a work-related meeting in Oregon. Jet Aviation had 

 

2

The StarNet policy provided coverage for non-owned 

aircraft that were not operated by or used at the direction of 

Jet Aviation. In other words, it explicitly provides coverage 

for incidents like the 2008 plane crash.
11

no involvement in this transaction. Ketcheson crashed into a 

house in Gearhart, Oregon, killing five people. As a result, 

various claimants have sued Wyndham for damages. The 

crash may have triggered coverage under the language of the 

2008 policy.

B.

Illinois National filed suit against Wyndham seeking a 

declaratory judgment that the 2008 policy did not cover 

claims arising out of the August 2008 Cessna crash. It argued 

that the District Court should find that the 2008 policy, as 

written, did not provide coverage to Wyndham, or 

alternatively, that if the contract as written would provide 

coverage, the District Court should exercise its equitable 

power of reformation because there had been mutual mistake 

in the drafting of the contract between Illinois National and 

Jet Aviation. Wyndham filed a counterclaim seeking 

coverage under the 2008 policy for the August 2008 Cessna 

crash, filing a motion to dismiss Illinois National‟s claim and 

a motion for summary judgment. Both sides filed statements 

of material facts not in dispute; additionally, Illinois National 

filed a supplemental statement of disputed material facts and 

requested more discovery.

The District Court granted both of Wyndham‟s 

motions, holding that Wyndham was entitled to coverage 

under the 2008 policy and that Illinois National was not 

entitled to reformation based upon the alleged mistake. The 

District Court held that the 2008 policy was clear on its face 

and that Wyndham was entitled to coverage as a matter of 

law. The District Court went on to explain that “because 
12

Wyndham did not participate in the negotiation and drafting 

of the 2008 policy, there can be no mutual mistake.” Illinois 

Nat’l Ins. Co. v. Wyndham Worldwide Operations, Inc., No. 

09-1724, 2010 WL 3326709 at *5 (D.N.J. Aug. 23, 2010). 

Instead, the District Court analyzed Illinois National‟s 

argument in the context of unilateral mistake and determined 

that reformation was unavailable. Id. at *5-6. Further, the 

District Court dismissed Illinois National‟s complaint on the 

basis that it failed to plead mistake with particularity as 

required by Federal Rule of Civil Procedure 9(b). Id.

Illinois National filed a timely notice of appeal.

II.

The District Court had jurisdiction under 28 U.S.C. 

§ 1332(a) because the parties‟ citizenship was completely 

diverse and the amount in controversy exceeded $75,000. We 

have jurisdiction under 29 U.S.C. § 1291. We exercise 

plenary review of the District Court‟s order. See McGovern 

v. Philadelphia, 554 F.3d 114, 115 (3d Cir. 2009) (plenary 

review of order granting motion to dismiss); Spence v. Esab 

Group, Inc., 623 F.3d 212, 216 (3d Cir. 2010) (plenary 

review of order granting summary judgment motion).

“To survive a motion to dismiss, a complaint must 

contain sufficient factual matter, accepted as true, to state a 

claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

--- U.S. ----, 129 S. Ct. 1937, 1949 (2009) (internal quotation 

marks omitted). A party is entitled to summary judgment 

when it demonstrates that there is no genuine issue of 

material fact and that the evidence establishes its entitlement 
13

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

Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In reviewing a 

motion for summary judgment, “we must view the facts in the 

light most favorable to the nonmoving party and draw all 

inferences in that party's favor.” Norfolk S. Ry. Co. v. Basell 

USA Inc., 512 F.3d 86, 91 (3d Cir. 2008) (internal quotation 

marks omitted).

III.

Illinois National argues that the District Court erred in

granting summary judgment to Wyndham on its counter 

claim by erroneously interpreting New Jersey law and 

concluding that reformation on the basis of mutual mistake 

can never be sought against a third-party that was not present 

when the contract was consummated. Illinois Nat’l Ins. Co., 

2010 WL 3326709 at *5. Illinois National argues that there is 

no categorical rule preventing a contracting party from 

seeking reformation for mutual mistake when the party 

against whom reformation is being sought did not participate 

in the negotiation of the contract at issue.

When interpreting state law, we follow a state‟s 

highest court; if that state‟s highest court has not provided 

guidance, we are charged with predicting how that court 

would resolve the issue. Canal Ins. Co. v. Underwriters at 

Lloyd's London, 435 F.3d 431, 436 (3d Cir. 2006). To do so, 

we must take into consideration: (1) what that court has said 

in related areas; (2) the decisional law of the state 

intermediate courts; (3) federal cases interpreting state law; 

and (4) decisions from other jurisdictions that have discussed 

the issue. Id. (citing Werwinski v. Ford Motor Co., 286 F.3d 
14

661, 675 (3d Cir. 2002).). “Although lower state court 

decisions are not controlling on an issue on which the highest 

court of the state has not spoken, federal courts must attribute 

significant weight to these decisions in the absence of any 

indication that the highest state court would rule otherwise.” 

Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 273-74 

(3d Cir. 1985).

The Supreme Court of New Jersey has set out general 

principles for contract interpretation and reformation:

As a general rule, courts should enforce 

contracts as the parties intended. Similarly, it is 

a basic rule of contractual interpretation that a 

court must discern and implement the common 

intention of the parties. The court‟s role is to 

consider what is written in the context of the 

circumstances at the time of drafting and to 

apply a rational meaning in keeping with the 

expressed general purpose.

Pacifico v. Pacifico, 920 A.2d 73, 77 (N.J. 2007) (internal 

citations and quotation marks omitted). In furtherance of the 

goal of binding parties to their mutual intent at the time of 

contracting, a court may reform a contract if it “was created 

by the negotiations of the parties, but by mutual mistake is 

wanting in formal expression or execution, so as to evince the 

actual intent of the parties. Gross v. Yeskel, 134 A.2d 737, 

737 (N.J. Eq. 1926) (internal citations omitted).

“Generally, when interpreting an insurance policy, 

courts should give the policy‟s words their plain, ordinary 
15

meaning.” Nav-Its, Inc. v. Selective Ins. Co. of Am., 869 A.2d 

929, 933 (N.J. 2005) (internal citations and quotation marks 

omitted). We interpret a contract according to its plain 

language by reading the document as a whole in a fair and 

common sense manner so as to match the reasonable 

expectations of the parties. Hardy ex rel. Dowdell v. AbdulMatin, 965 A.2d 1165, 1168-69 (N.J. 2009).

However, in New Jersey, even an unambiguous 

contract may be reformed when there was mutual mistake and 

the written contract does not match what the parties intended. 

Cent. State Bank v. Hudik-Ross Co., Inc., 396 A.2d 347, 350 

(N.J. Super. 1978) (“The rule that contracts may be reformed 

where there has been mutual mistake is „well settled in our 

jurisprudence.‟”). A mutual mistake is “1. A mistake in 

which each party misunderstands the other's intent. . . . [or] 

2. A mistake that is shared and relied on by both parties to a 

contract.” Black's Law Dictionary 1023 (8th ed. 2004).

Mutual mistake is evaluated by determining the 

understanding of the parties at the time the contract was 

formed. Bonnco Petrol, Inc. v. Epstein, 560 A.2d 655, 659-

60 (N.J. 1989). A party seeking reformation for mutual 

mistake must show that both parties labored under the same 

misapprehension as to a particular and essential fact. Id. at 

660. The understanding of persons who were not contracting 

parties at the time of consummation of a contract is irrelevant. 

Gross, 134 A.2d at 737 (stating that courts should only look 

at the intent of the contracting parties at the time of 

consummation of a contract); Sav. Inv. & Trust Co. v. Conn. 

Mut. Life Ins. Co., 85 A.2d 311, 314 (N.J. Super. 1952) 

(“Equity, in an effort to effectuate the intent of contracting 
16

parties, will exercise its power to reform instruments where 

there has been a mutual mistake of the parties.”).

“The power of a court of equity to reform deeds and 

other writings for the correction of mistakes stands among its 

most ancient and useful powers.” Cummins v. Bulgin, 37 N.J. 

Eq. 476, 476 (1883). That power is not limited to the original 

parties to the contract, but extends to all those standing in 

privity with them. Union Fur Shop. v. Max Melzer, Inc., 29 

A.2d 873, 876 (N.J. 1943) (subsequent purchaser of business 

entitled to reformation of contract between original seller and 

buyer, based upon evidence of original seller‟s and buyer‟s 

common intention); see also Allen B. Du Mont Lab., Inc. v. 

Marcalus Mfg. Co., 152 A.2d 841, 846 (N.J. 1959) (rejecting 

argument that reformation is impossible in the absence of an 

original party to the transaction: “If reformation is sought to 

establish a right against another, then of course that other 

must be before the court; a party to the mistake need not be 

joined unless he has a subsisting interest that will be 

affected.”).

The District Court held that “because Wyndham did 

not participate in the negotiation and drafting of the 2008 

policy, there can be no mutual mistake.” Illinois Nat’l Ins. 

Co., 2010 WL 3326709 at *5. Id. We believe this is an 

errant interpretation of New Jersey law. Reformation on the 

basis of mutual mistake can be granted even when it is to the 

disadvantage of a third party.

Turning to the facts, Illinois National and Jet Aviation 

were the only parties that negotiated and drafted the 2008 

policy. (App. at A397-98.) As Wyndham admits, it “had 
17

[no] involvement with . . . [the] revision to the Endorsement. 

[The contracting parties] never communicated with 

Wyndham to discuss the revision or request input. . . . [And,] 

Wyndham never had an opportunity to form an understanding 

of what [the contracting parties] intended when [they] 

inserted „Named Insured.‟” (Br. for Appellee Wyndham at 

7.) Jet Aviation and Illinois National agree that their intent, at 

the time the contract was drafted, was to limit coverage for 

non-owned aircraft to aircraft used by or at the direction of Jet 

Aviation. (App. at A1773.)

Under these circumstances, the District Court erred by 

not analyzing the contract under the principles of mutual 

mistake set forth under New Jersey law. On remand, the 

District Court should evaluate Illinois National‟s and Jet 

Aviation‟s intent as well as Wyndham‟s arguments that 

reformation may be inequitable due to negligence and 

because the remedy is sought after an accident.

IV.

Illinois National argues that the District Court also 

erred by determining that Illinois National‟s complaint

seeking declaratory judgment should be dismissed under Fed. 

R. Civ. P. 9(b). The District Court stated that Illinois 

National had failed to “identify with the required particularity 

„the who, what, when, where, and how‟ of the mistake as 

required by Rule 9(b).” Illinois National, 2010 WL 3326709 

at *12. Rule 9(b) provides that when a party alleges fraud or 

mistake, “a party must state with particularity the 

circumstances constituting fraud or mistake.” Id. Rule 9(b) 

exists to insure adequate notice so that defendants can 
18

intelligently respond. Morganroth & Morganroth v. Norris, 

McLaughlin & Marcus, P.C., 331 F.3d 406, 414 n.2 (3d Cir. 

2003) (“The purpose of Rule 9(b) is to provide notice, not to 

test the factual allegations of the claim.”).

To survive a motion to dismiss, a plaintiff must allege 

facts sufficient to nudge his claims across the line from 

conceivable to plausible. Phillips v. Cty. of Allegheny, 515 

F.3d 224, 230 (3d Cir. 2008) (citing Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 555-56 (2007).). Illinois National‟s 

complaint stated that it sought a declaratory judgment that the 

2008 policy did not cover the August 2008 Cessna incident. 

(App. at A40.) The complaint stated the understanding of the 

parties, Illinois National and Jet Aviation, at the time of 

drafting: “[d]uring the negotiations for each of the Policies, 

the parties understood and agreed that liability coverage 

available to Insured Owners for the use of non-owned aircraft 

was limited to non-owned aircraft operated by or used at the 

direction of Jet Aviation Business Jets, Inc.” (Id. at A41.) 

Further, it identified the specific drafting error that had been 

made. (Id. at A45.) Specifically, the 2008 policy substituted 

“Jet Aviation Business Jets, Inc.” with “Named Insured” 

without realizing that doing so could lead to the contract 

being read to provide coverage to Insured Owners for nonowned aircraft that were not operated by or used at the 

direction of Jet Aviation Business Jets, Inc. (Id.)

The complaint was sufficient. It specifically alleged 

the mistake and the remedy being sought. (Id. at A43-6.) 

Wyndham‟s counterclaim shows that it understood what was 

being pleaded. (Id. at A52-64.) Illinois National‟s complaint 

met the purpose of Rule 9(b) in that Wyndham was able to 
19

answer, engage in discovery, and move for summary 

judgment on its counterclaim.

The District Court therefore erred in granting 

Wyndham‟s motion to dismiss Illinois National‟s complaint 

pursuant to Rule 9(b).

V.

We conclude that the District Court‟s grant of 

Wyndham‟s motion for summary judgment and motion to 

dismiss Illinois National‟s complaint were in error. 

Accordingly, we will reverse and remand for further 

proceedings consistent with this opinion.3

 

3

Illinois National also contends that the District Court 

erred in its interpretation of the Managed Aircraft 

Endorsement and in its refusal to allow Illinois National 

additional discovery pursuant to Fed. R. Civ. P. 56(f) (now 

Fed. R. Civ. P. 56(d)) prior to its grant of Wyndham‟s motion 

for summary judgment. Because we dispose of this case on 

the grounds that Illinois National‟s complaint was sufficient 

and that the District Court applied the incorrect test for 

mutual mistake, we do not reach the Illinois National‟s other 

arguments for reversal.
1

Nygaard, Circuit Judge, dissenting. 

The majority’s exclusive focus upon mutual mistake,

and the intent of Illinois National and Jet Aviation is, I 

respectfully submit, misplaced. There is no mutual mistake 

here, only negligence and ignorance—neither of which is a 

legitimate basis for an equitable reformation of the contract. 

The insurer made changes to its policy, and negligently sold 

the altered policy to the insured, who was ignorant of the 

changes. Although Jet Aviation facilitated the procurement 

of Wyndham’s aircraft insurance coverage with Illinois 

National, this fact does not eliminate the general contractual 

obligations of the insurer to the insured. As written, the 

Endorsement—expressing the aircraft insurance coverage 

purchased by Wyndham—extended the indemnification of Jet 

Aviation’s policy with Illinois National to insure the nonowned aircraft of the “Named Insured.” The Endorsement

explicitly references Wyndham as a “Named Insured.” The 

insurer indemnified the insured on these terms and these 

words are binding.

As we have previously stated, New Jersey law insists 

that insurance policies are to be interpreted according to their 

“plain, ordinary meaning.” Colliers Lanard & Axilbund v. 

Lloyds of London, 458 F.3d 231, 236 (3d Cir. 2006) (quoting 

Nav-Its, Inc. v. Selective Ins. Co. of America, 869 A.2d 929, 

933 (2005). The plain meaning of a contract can be 

overridden only in rare, exceptional circumstances. Id. 

Moreover, while I do not read any patent or latent ambiguity 

here, in such instances policies generally “should be 

construed to sustain coverage.” President v. Jenkins, 853 

A.2d 247, 254 (2004). There is simply no support in state law 

for the conclusion that the insurer’s failure to read the plain 
2

language of its own policy before issuing it to the insured 

justifies supplanting these well-accepted tenets of contract 

and insurance law with considerations of equity to reform the 

contract. This is particularly so where, as here, the insurer 

seeks reformation post-loss. Judge Brown analyzed these 

issues thoroughly and reasonably. For these reasons, I 

respectfully dissent.