United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Submitted September 18, 2017 Decided October 12, 2018

No. 16-7132

VASILLI KATOPOTHIS AND FRANCESCA DAHLGREN,

APPELLANTS

v.

WINDSOR-MOUNT JOY MUTUAL INSURANCE CO. AND R.W.

HOME SERVICES, INC., DOING BUSINESS AS GALE FORCE 

CLEANING AND RESTORATION,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:14-cv-00380)

On Rehearing

Glenn H. Silver was on the briefs for appellants. Erik B. 

Lawson entered an appearance.

George D. Bogris was on the brief for appellee R.W. 

Home Services, Inc., d/b/a Gale Force Cleaning and 

Restoration.

Charles B. Peoples was on the brief for appellee 

Windsor-Mount Joy Mutual Insurance Co.
2

Before: GRIFFITH and KATSAS,

* Circuit Judges, and 

SENTELLE, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge: We issued our initial opinion in 

this case on July 31, 2018. Because of a concern with the 

disposition, we vacated that opinion and sua sponte ordered 

rehearing and supplemental briefing. We now substitute the 

following opinion in its place.

* * *

Vasilli Katopothis and Francesca Dahlgren (the 

“Dahlgrens”) own a beach home that flooded in a plumbing 

accident while they were away. They sued their insurance 

company for breach of contract when it refused to cover the 

damage. They also sued their cleaning-and-restoration

company for failing to adequately remedy the damage and 

prevent mold. The district court granted summary judgment in 

favor of the insurance company based on the plain language of 

the Dahlgrens’ insurance policy and transferred the claims 

against the cleaning-and-restoration company to the district 

court in Delaware for lack of personal jurisdiction. We lack 

jurisdiction to review the transfer order but affirm the grant of 

summary judgment.

 *

Judge Katsas was drawn to replace then Judge, now Justice,

Kavanaugh, who was a member of the panel at the time the case was 

submitted but did not participate in this opinion. Judge Katsas has 

read the briefs and the supplemental briefs and reviewed the record. 
3

I

A

In May 2000, the Dahlgrens, who reside in the District of 

Columbia, purchased a beach home in Rehoboth Beach, 

Delaware, where they spend most of their weekends. At all 

times relevant to this litigation, the house was a second 

residence and remained fully furnished with the accessories of 

daily life, such as furniture, clothes, food, toiletries, and

medicine. When not at their beach home, the Dahlgrens

routinely left the heat on to prevent the pipes from freezing and 

asked a friend to check on the house and retrieve the mail. They 

did not, however, shut off the water supply.

In February 2013, Ms. Dahlgren returned to the beach 

home to find two inches of standing water throughout the main 

level and additional water “gushing” from the ceiling overhead. 

The Dahlgrens had been away for ten days, and, in their 

absence, a pressurized hot water pipe in the upstairs bathroom 

had separated at the joint and flooded the house.

The Dahlgrens notified their insurance company, 

Windsor-Mount Joy Mutual Insurance Co. (“WindsorMount”), about the flooding. They also contracted with R.W. 

Home Services, Inc., doing business as Gale Force Cleaning 

and Restoration (“Gale Force”), to remedy the damage and 

prevent mold. According to the Dahlgrens, Gale Force was 

negligent in its clean-up effort and mold spread through the 

house, so the Dahlgrens eventually decided to tear it down and 

build a new one.

The Dahlgrens timely filed an insurance claim with 

Windsor-Mount to cover the damage from the accident. The 

insurance company denied the claim because, while they were 
4

away, the Dahlgrens had failed to shut off the water where it 

entered the house.

B

The Dahlgrens sued Windsor-Mount for breach of contract

and alleged $800,000 in damages. They filed suit in the 

Superior Court of the District of Columbia, but WindsorMount, a Pennsylvania corporation with its principal place of 

business in Pennsylvania, invoked federal diversity jurisdiction 

and removed the case to the district court. See 28 U.S.C. 

§§ 1332(a), 1441(a). Windsor-Mount impleaded Gale Force as 

a third-party defendant on the theory that if Windsor-Mount 

was liable to the Dahlgrens, the extent of its liability turned on 

Gale Force’s conduct. The Dahlgrens amended their complaint 

to add claims against Gale Force as well for breach of contract, 

negligence, negligent misrepresentation, and violations of the 

Delaware Consumer Fraud Act, 6 Del. Code §§ 2511-27. The 

Dahlgrens and Windsor-Mount then filed cross-motions for 

summary judgment, and Gale Force moved to be dismissed 

from the case for lack of personal jurisdiction.

The district court determined that the Dahlgrens could not 

recover under the clear terms of their insurance policy and 

granted summary judgment against them on that issue. See 

Katopothis v. Windsor-Mount Joy Mut. Ins. Co., 211 F. Supp. 

3d 1, 13-21 (D.D.C. 2016). While the Dahlgrens argued that

Delaware law should apply and Windsor-Mount argued for 

District of Columbia law, the district court was not put to the 

choice because the insurance claim failed under the law of both 

jurisdictions. See id. at 13-14; see also City of Harper Woods 

Emps.’ Ret. Sys. v. Olver, 589 F.3d 1292, 1298 (D.C. Cir. 2009) 

(“A federal court sitting in diversity applies the conflict of law 

rules of the forum in which it sits.” (citing Klaxon Co. v. Stentor 

Elec. Mfg. Co., 313 U.S. 487, 496 (1941))); USA Waste of Md., 
5

Inc. v. Love, 954 A.2d 1027, 1032 (D.C. 2008) (“A conflict of 

laws does not exist when the laws of the different jurisdictions 

are identical or would produce the identical result on the facts 

presented.”).

The district court also concluded that the Dahlgrens did not

allege that Gale Force, a Delaware corporation with its 

principal place of business in Delaware, had sufficient contacts 

with the District of Columbia to establish personal jurisdiction. 

The district court accordingly did not resolve the Dahlgrens’ 

claims against Gale Force, but instead transferred them to the 

district court in Delaware. Katopothis, 211 F. Supp. 3d at 21-

27; see 28 U.S.C § 1406(a); Sinclair v. Kleindienst, 711 F.2d 

291, 293-94 (D.C. Cir. 1983) (construing 28 U.S.C. § 1406(a) 

to authorize transfer of venue for lack of personal jurisdiction).

The district court issued its order on September 26, 2016. 

On October 7, 2016, the clerk transferred the case file to the 

district court in Delaware, where the Dahlgrens’ claims against 

Gale Force have been stayed pending the outcome of this 

litigation. The Dahlgrens filed their notice of appeal to this 

court on October 11, 2016. The Dahlgrens argue that the 

district court below misconstrued their insurance policy under 

Delaware law and erroneously transferred the claims against 

Gale Force.

II

We begin, as every court must, by addressing the question 

of jurisdiction. Although it is clear that the district court had

diversity jurisdiction over this case pursuant to 28 U.S.C. 

§ 1332(a), there are questions about ours.
6

A

The Dahlgrens argue that the district court erred in 

concluding that it lacked personal jurisdiction to adjudicate 

their claims against Gale Force and transferring them to the 

district court in Delaware. We lack jurisdiction to consider this 

argument because it was lodged with us after the Dahlgrens’ 

claims had been transferred.

“The basic rule in civil practice is that if a case is 

physically transferred before an appeal or a petition for 

mandamus has been filed, the court of appeals in the transferor 

circuit has no jurisdiction to review the transfer.” In re Briscoe, 

976 F.2d 1425, 1426 (D.C. Cir. 1992) (per curiam). This rule 

is subject to a narrow exception “[w]hen there is a substantial 

issue whether the district court had ‘power to order the 

transfer.’” Id. at 1427 (quoting Starnes v. McGuire, 512 F.2d 

918, 924 n.6 (D.C. Cir. 1974) (en banc)). In Briscoe, the U.S. 

District Court for the Southern District of Florida transferred 

Briscoe’s criminal cases to the U.S. District Court for the 

District of Columbia. Id. at 1426. The D.C. court retransferred 

“one of the cases back to” Florida and, after the file was sent to 

Florida, Briscoe appealed. Id. at 1426-27. We concluded that 

the retransfer order violated “the fundamental principle that the 

propriety of the transferor court’s exercise of discretion under 

[Federal Rule of Criminal Procedure] 21(d) is not subject to 

review by the” transferee court. Id. at 1428. So even though 

Briscoe did not file his appeal until after the court had 

transferred his file, in light of this “substantial issue,” we had 

jurisdiction to review the transfer order. Id. at 1426-29.

We have also, in limited circumstances, informally 

requested that the transferee court “return the file” and resolved 

the appeal “after the file came back.” Id. at 1427. For instance, 

we requested the return of the case file in Fine v. McGuire 
7

because the district court “sua sponte” transferred the case to 

another forum without providing “notice or hearing to the 

parties.” 433 F.2d 499, 500 & n.1 (D.C. Cir. 1970) (per 

curiam).

The Dahlgrens’ case is altogether different. They have not 

raised any “substantial issue” concerning the district court’s 

power to order the transfer of their case, which took place four 

days before they filed a notice of appeal. Nor have they 

identified any reason why we should ask the Delaware court to

return the file. In fact, the Dahlgrens’ opening brief barely 

mentions the transfer issue, and then only in passing. See 

Dahlgrens Br. 34 (stating only that the district court’s decision 

to transfer the claims against Gale Force was “inextricable” 

from its decision to grant summary judgment to WindsorMount and should be reversed). Nothing in the record suggests 

that we have jurisdiction to review their appeal of the transfer 

order.

B

We do have jurisdiction to review the Dahlgrens’ appeal 

of the district court’s grant of summary judgment to WindsorMount.

“The courts of appeals . . . shall have jurisdiction of 

appeals from all final decisions of the district courts of the 

United States . . . .” 28 U.S.C. § 1291. In general, “any order or 

other decision, however designated, that adjudicates fewer than 

all the claims or the rights and liabilities of fewer than all the 

parties” is not “final” unless the district court certifies, pursuant 

to Federal Rule of Civil Procedure 54(b), that “there is no just 

reason for delay.” Fed. R. Civ. P. 54(b). 
8

The district court granted summary judgment to WindsorMount but did not render a final decision on the Dahlgrens’ 

claims against Gale Force. Nor did the court certify, pursuant 

to Rule 54(b), that “there [was] no just reason for delay[ing]” a 

final judgment on the Dahlgrens’ claims against WindsorMount. 

Rule 54(b) would therefore seem to preclude our review of 

the Dahlgrens’ appeal of the grant to summary judgment. And, 

indeed, where a court dismisses one claim and transfers the 

remaining claims to another forum, in the absence of a Rule 

54(b) order, the non-transferred claims “tag[] along” with the 

transferred claim so that they may be resolved together on 

appeal. Hill v. Henderson, 195 F.3d 671, 674 (D.C. Cir. 1999). 

This serves Rule 54(b)’s concern for judicial economy because, 

in a case involving multiple claims against the same party, 

there is a greater likelihood of overlapping issues or that 

resolution of one claim might moot another. Id.

While Rule 54(b) applies to a transfer case that involves 

the “dismissal of a claim,” it does not apply to a transfer case 

involving the “dismissal of a party.” Id.; see Reuber v. United 

States, 773 F.2d 1367, 1368 (D.C. Cir. 1985) (per curiam). 

Where the district court dismisses all claims against one party 

and transfers the remaining claims against other parties to 

another forum, the court “disassociate[s] itself from [the] case 

in all respects.” Reuber, 773 F.3d at 1368. We accordingly treat 

this type of party dismissal as “final,” even if we lack 

jurisdiction to review the transfer order, and notwithstanding 

the absence of a Rule 54(b) order. Id.

So have the Dahlgrens asked us to review the “dismissal 

of a claim” or the “dismissal of a party”? The answer is surely 

the dismissal of a party. The district court granted summary 

judgment to Windsor-Mount, which also ended Windsor-
9

Mount’s claims against Gale Force. See Katopothis, 211 F. 

Supp. 3d at 6 (“Windsor has filed a third party complaint 

against Gale Force. That complaint alleges that, to the extent 

Windsor is liable to Plaintiffs, it is subrogated to Plaintiffs’

claims against Gale Force . . . .”). Because this amounts to a 

“party dismissal,” we have jurisdiction to review this order on 

appeal pursuant to § 1291.

III

We review de novo issues of contract interpretation and 

the grant of summary judgment. Bode & Grenier, LLP v. 

Knight, 808 F.3d 852, 857, 862 (D.C. Cir. 2015).

A

The Dahlgrens’ homeowners insurance policy is a twentyseven page standard contract produced by the American 

Association of Insurance Services. It provides coverage for 

damage to both real and personal property resulting from 

accidental discharge or leakage from the plumbing, subject to 

specific exclusions. The cover page of the policy also lists a 

number of endorsements included with the standard contract to 

amend the terms of coverage. ML-508D is one of those 

endorsements. ML-508D was approved by the Delaware 

Insurance Commissioner and printed on a blue sheet of paper 

to stand out from the rest of the policy.

It reads in full:

ADDITIONAL EXCLUSIONS FOR UNOCCUPIED 

RESIDENCES

In addition to exclusions found elsewhere in your policy, 

if the insured residence is vacant, unoccupied (meaning an 
10

absence in excess of 72 hours), or under construction and 

unoccupied, the insured must:

a. Maintain heat in the residence and shut off the 

water supply where it enters the residence. If the 

residence is heated by a hot water system, the 

water supply to the heating system must be 

maintained and the water supply to the rest of 

the residence must be shut off.

OR

b. Shut off the water supply where it enters the

residence and completely empty liquids from

any plumbing, heating, air conditioning system,

water heater, or domestic appliance.

If this is not done, we do not pay for loss caused by freezing 

of or discharge, leakage, or overflow from any plumbing, 

heating, or air conditioning system or any appliance or 

other equipment attached to it.

In other words, when the house remains unoccupied for more

than 72 hours, the homeowner must either leave the heat on and 

shut off the water where it enters the house or shut off the water 

where it enters the house and drain any remaining liquid from 

the plumbing. Otherwise, ML-508D voids coverage for any 

damage caused by plumbing discharge, leakage, or overflow.

B

According to Delaware law, “[W]here the language in 

insurance contracts is unambiguous, the language is given its 

plain and ordinary meaning.” Bermel v. Liberty Mut. Fire Ins. 

Co., 56 A.3d 1062, 1070 (Del. 2012). An ambiguous insurance

policy “is typically construed against the drafter and in 

accordance with the reasonable expectations of the insured.” 
11

Id.; see also O’Brien v. Progressive N. Ins. Co., 785 A.2d 281, 

288 (Del. 2001); Penn. Mut. Life Ins. Co. v. Oglesby, 695 A.2d 

1146, 1149-50 (Del. 1997). But “a contract is only ambiguous 

when the provisions in controversy are reasonably or fairly 

susceptible to different interpretations” and “not . . . simply 

because the parties do not agree on the proper construction.” 

O’Brien, 785 A.2d at 288. Therefore, “[W]here the language of 

a policy is clear and unequivocal, the parties are to be bound 

by its plain meaning.” Id.

The Dahlgrens cannot recover under the clear and 

unambiguous terms of their insurance policy. If their house

remained unoccupied “in excess of 72 hours,” the Dahlgrens 

were required to “[m]aintain heat in the residence and shut off 

the water supply where it enters the residence,” or else the plain 

language of ML-508D excludes coverage for “loss caused 

by . . . discharge, leakage, or overflow from any plumbing . . .

system.” There is no dispute the Dahlgrens were away from 

their beach home for ten days and failed to shut off the water 

supply where it entered the house. There is no question that the 

damage for which they now seek coverage was caused by 

flooding from the plumbing. It is a plain and simple matter that 

they cannot recover from Windsor-Mount for their loss.

Nevertheless, the Dahlgrens offer several arguments for

why we should disregard the straightforward application of 

ML-508D and grant them relief. None are persuasive.

The Dahlgrens first argue that the policy extends coverage 

to real and personal property for damage that results from 

plumbing accidents. They contend that this coverage cannot be 

limited by a subsequent endorsement because doing so would 

create conflicting contract terms or render the policy 

ambiguous.
12

We disagree. By definition, endorsements amend the terms 

of an insurance policy. See Endorsement, Black’s Law 

Dictionary (10th ed. 2014) (“An amendment to an insurance

policy; a rider.”). That’s their very purpose. A policy is not 

ambiguous or contradictory just because an endorsement 

amends its provisions. See Intel Corp. v. Am. Guarantee & 

Liab. Ins. Co., 51 A.3d 442, 447 & n.14 (Del. 2012); see also 

Grinnell Mut. Reins. Co. v. Schwieger, 685 F.3d 697, 701 (8th 

Cir. 2012) (“[W]here provisions in the body of the policy 

conflict with an endorsement or rider, the provision of the 

endorsement governs.” (quotation marks omitted)). The 

Dahlgrens’ argument neglects this basic proposition of how an 

insurance policy works.

The Dahlgrens also assert that the provisions in their 

policy extending coverage to real and personal property refer

only to two sets of exclusions, neither of which include ML508D. They reason that this means ML-508D does not apply to

real or personal property coverage. At the very least, the 

Dahlgrens contend, it isn’t clear that ML-508D applies. 

This argument ignores that ML-508D is titled “Additional

Exclusions for Unoccupied Residences” (emphasis added) and 

is listed on the cover page of the policy with other 

endorsements that amend the terms of the contract. It does not 

matter that other exclusions also apply to the Dahlgrens’ house

because ML-508D operates in addition to whatever other 

exclusions exist. By its terms, ML-508D expressly forecloses 

recovery for all loss associated with plumbing accidents, 

including damage to real and personal property, unless certain 

requirements are met.

Next, the Dahlgrens claim their beach home was “neither 

vacant nor unoccupied in any conventional sense” because it 

remained furnished with the accessories of daily life.
13

Dahlgrens Br. 14. In the alternative, they assert the terms 

“vacant” and “unoccupied” in ML-508D are ambiguous. Either 

way, they explain, ML-508D should not apply to their 

situation.

The policy, however, leaves no doubt what “unoccupied” 

means. ML-508D explicitly defines “unoccupied” as “an 

absence in excess of 72 hours.” We agree with the district court 

that this “can only be reasonably read to refer to the absence of 

people.” Katopothis, 211 F. Supp. 3d at 15 (emphasis omitted); 

see Windsor-Mount Joy Mut. Ins. Co. v. Jones, No. 07C-07-

006, 2009 WL 3069695, at *6 (Del. Super. Ct. July 17, 2009) 

(“Considering the obvious and increased risk insurers have 

when insured property is without routine human presence, 

sporadic or irregular interaction with the property runs contrary 

to the concept of occupancy . . . .”); see also Myers v. 

Merrimack Mut. Fire Ins. Co., 788 F.2d 468, 471 (7th Cir.

1986) (“‘[U]noccupied’ means the lack of habitual presence of 

human beings . . . . This construction has been followed by . . .

numerous courts in many other jurisdictions . . . .”);

Unoccupied, Webster’s Third New International Dictionary

(2002) (“[N]ot occupied by inhabitants[;] . . . of, relating to, or 

being premises on which no one is living although the furniture 

and fixtures have not been removed . . . .”). There is no dispute 

the Dahlgrens were away from their beach home for over 72 

hours, which under the clear terms of the policy means the

flooding occurred while the house was “unoccupied.”

The Dahlgrens did ask a friend to periodically check on the 

house and retrieve the mail while they were away, and the 

parties dispute whether such neighborliness was enough to 

“occupy” the house under the policy. Like the district court, we 

need not resolve this question because the good neighbor had 

not been to the house in six days when Ms. Dahlgren 
14

discovered the flooding. See Katopothis, 211 F. Supp. 3d at 

16 n.9.

In any event, the Dahlgrens urge us to adopt the approach 

of the Supreme Court of Delaware and “look to the reasonable 

expectations of the insured,” not just when a policy is 

ambiguous, but also “if the policy contains a hidden trap or 

pitfall, or if the fine print takes away that which has been given 

by the large print.” Hallowell v. State Farm Mut. Auto. Ins. Co., 

443 A.2d 925, 927 (Del. 1982). ML-508D is just such a

“hidden trap” or “fine print,” they argue, and such deception

cannot be allowed to frustrate their reasonable expectation of 

coverage for accidental flooding. “It is manifestly unfair to the 

insureds,” they assert, “to permit an insurance company to bury 

a conflicting Endorsement at the end of the policy, which 

purports [to] render express grants of coverage in the policy 

illusory.” Dahlgrens Br. 13.

We see nothing hidden or deceptive about ML-508D. It

was written in plain language and listed on the cover page of 

the insurance policy as an applicable endorsement. And, to 

further draw attention to its terms, the endorsement was printed 

on blue paper to stand out from the rest of the policy. WindsorMount in no way disguised the endorsement or the conditions 

it imposed on coverage.

Nor is there anything surprising about endorsements like 

ML-508D. They are designed to prevent extensive damage 

from plumbing accidents that might otherwise be avoided with 

early detection or simple preventative measures. Cf., e.g.,

Windsor-Mount, 2009 WL 3069695, at *5-6 (“Any reading of 

the contract results in the conclusion that the purpose of the

provision in question is to protect the insurance company from 

the increased risk that accompanies insuring a house that does 

not have an occupant.” (quoting Vushaj v. Farm Bureau Gen. 
15

Ins. Co. of Mich., 773 N.W.2d 758, 760 (Mich. Ct. App. 

2009))). An unoccupied house presents a significant risk that 

leaking water will go unnoticed for some time, dramatically 

increasing the likelihood of extensive damage to property. 

What might be only a minor incident in an occupied house

could escalate quickly into major damage if left unchecked, 

which is exactly what happened in this case.

The Dahlgrens essentially ask us to “destroy or twist 

policy language under the guise of construing it.” O’Brien, 785 

A.2d at 288 (quoting Rhone-Poulenc Basic Chems. Co. v. Am. 

Motorists Ins. Co., 616 A.2d 1192, 1195 (Del. 1992)). But 

“creating an ambiguity where none exists could, in effect, 

create a new contract with rights, liabilities and duties to which 

the parties had not assented.” Id. (alteration omitted) (quoting 

Rhone-Poulenc, 616 A.2d at 1196). That we cannot do.

Finally, the Dahlgrens argue ML-508D is simply 

“ineffective” because it was printed below a notice that 

Windsor-Mount did not file with the Delaware Insurance 

Commissioner. Dahlgrens Br. 33-34; cf. 18 Del. Code § 2712 

(requiring insurers to file insurance forms with the Delaware 

Insurance Commissioner). The Dahlgrens insist that the 

presence of unapproved language on the same page, even 

separate from ML-508D, voids the endorsement. 

To the extent this argument has any merit, we would still

apply ML-508D in this case because the endorsement is 

“unambiguous and not contrary to public policy” so “there is 

little basis for invalidating” it. Hercules, Inc. v. AIU Ins. Co., 

784 A.2d 481, 501 (Del. 2001) (footnote and quotation marks 

omitted); see 18 Del. Code § 2718(b) (“Any condition, 

omission or provision not in compliance with the requirements 

of this title and contained in any policy, rider or endorsement 

hereafter issued and otherwise valid shall not thereby be 
16

rendered invalid but shall be construed and applied in 

accordance with such condition, omission or provision as 

would have applied had the same been in full compliance with 

this title.”). Indeed, no one disputes that the Delaware 

Insurance Commissioner approved ML-508D. And, ironically, 

the notice actually draws attention to the endorsement and the 

risks of water damage.

While the Dahlgrens suggest yet other reasons why they 

should prevail, they forfeited those arguments when they failed 

to raise them in the district court. See, e.g., Zevallos v. Obama, 

793 F.3d 106, 114 (D.C. Cir. 2015) (“Because these arguments

were not made below, they have been forfeited.”). We 

conclude, therefore, that the Dahlgrens cannot recover from 

Windsor-Mount under the clear terms of their insurance policy.

And because we conclude the Dahlgrens’ claim against 

Windsor-Mount fails under Delaware law, and the Dahlgrens 

do not appeal the judgment of the district court with regard to 

District of Columbia law, we do not need to consider the 

choice-of-law analysis further. See USA Waste of Md., 954 

A.2d at 1032.

IV

The appeal of the transfer order is dismissed for lack of 

jurisdiction. The district court’s grant of summary judgment is 

affirmed.

So ordered.