PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1227

CERTAIN UNDERWRITERS AT LLOYD’S, LONDON, Subscribing to 

Certificate Nos. 1149760, 1149761, and 1149763,

Plaintiff - Appellee,

v.

MAX HARRY COHEN, M.D.; MAX HARRY COHEN, M.D., CHTD.,

Defendants - Appellants.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. Jillyn K. Schulze, Magistrate Judge. 

(8:13-cv-00311-JKS)

Argued: March 25, 2015 Decided: May 5, 2015

Before MOTZ and GREGORY, Circuit Judges, and Mary G. LEWIS, 

United States District Judge for the District of South Carolina, 

sitting by designation.

Reversed and remanded by published opinion. Judge Motz wrote 

the opinion, in which Judge Gregory and Judge Lewis joined.

ARGUED: Erik David Frye, Upper Marlboro, Maryland, for 

Appellants. Neal Richard Novak, NOVAK LAW OFFICES, Chicago, 

Illinois, for Appellee. ON BRIEF: Steven E. Leder, Julie Furst 

Maloney, LEDER LAW GROUP, PC, Baltimore, Maryland, for Appellee.
2

DIANA GRIBBON MOTZ, Circuit Judge:

Certain Underwriters at Lloyd’s of London brought this suit 

against Dr. Max Harry Cohen, a general surgeon, and Max Harry 

Cohen, M.D., Chtd., the corporate entity under which his 

practice operated (collectively, “Dr. Cohen”), seeking a 

declaration that they properly rescinded his disability 

insurance policies. The magistrate judge held that Dr. Cohen 

made material misrepresentations on his policy applications and 

so granted summary judgment to the Underwriters. For the 

reasons that follow, we reverse and remand for further 

proceedings consistent with this opinion.

I.

On April 1, 2011, Dr. Cohen submitted several initial 

applications for disability insurance to Petersen International

Underwriters, a surplus-lines broker authorized by the 

Underwriters to enter into insurance contracts on their behalf. 

Each four-page insurance application consists of questions 

pertaining to an applicant’s personal, financial, and medical 

information.

At issue here are Dr. Cohen’s responses to three of those 

questions. When asked “Are you actively at work?,” Dr. Cohen 

checked the “Yes” box. In response to the question “Are you 

aware of any fact that could change your occupation or financial 
3

stability?,” Dr. Cohen checked the “No” box. When asked “Are 

you party to any legal proceeding at this time?,” Dr. Cohen 

again checked the “No” box. Dr. Cohen signed final applications 

with these answers on August 8, 2011, and the policies became 

effective on that date.

On April 12, 2011, shortly after submission of his initial

applications and prior to submission of his final applications, 

Dr. Cohen signed a Consent Order with the Maryland State Board 

of Physicians (the “Board”), which suspended his license to 

practice medicine in Maryland. The Consent Order provided that 

Dr. Cohen’s suspension would begin on August 2, 2011, and

continue for a period of three months. Dr. Cohen agreed in the 

Consent Order to wind down his practice and refer all patients 

to other doctors during the three-month period prior to his 

suspension, and supply the Board with sixty days’ notice of his 

intent to become clinically active following his suspension. 

The Consent Order further provided that if Dr. Cohen returned to 

active practice, he would be on probation for five years, and 

would be supervised for the first year.1

On September 8, 2011, one month after the disability 

policies went into effect, Dr. Cohen sought medical treatment 

 1 On December 19, 2012, the District of Columbia Board of 

Medicine also issued an order placing Dr. Cohen on probation for 

five years. It, too, imposed various limitations and 

restrictions on his ability to practice medicine.
4

for injuries to his thumb and leg resulting from a fall. Later 

that month, Dr. Cohen’s insurance agent provided the 

Underwriters with notice of a possible claim. The Underwriters 

retained Disability Management Services, Inc. to investigate and 

adjust the potential claim. That investigation uncovered the 

Consent Order. The Underwriters then notified Dr. Cohen that 

they intended to rescind the policies, and issued a check 

refunding his premium payments.

Dr. Cohen initiated the policies’ grievance procedures, 

under which the rescission was affirmed. He requested an 

informal review, and the rescission was again upheld. The 

Underwriters, which are incorporated under the laws of England 

and Wales, and have their principal places of business in 

London, subsequently brought this diversity action against 

Dr. Cohen, a Maryland citizen. The Underwriters asserted that 

Dr. Cohen made material misrepresentations on his applications 

for insurance and sought a declaration that they properly 

rescinded his policies. The parties agreed to proceed before a 

magistrate judge.

Dr. Cohen filed a motion in limine to exclude all 

references to any proceedings, records, files, or orders by the 

Board. After a telephonic hearing, the magistrate judge orally 

denied the motion, concluding that the Consent Order was 

admissible. The parties then filed cross-motions for summary 
5

judgment. In a memorandum opinion, the magistrate judge granted 

summary judgment to the Underwriters and denied Dr. Cohen’s 

cross-motion. The court concluded that the Underwriters validly 

rescinded the insurance policies because Dr. Cohen made material 

misrepresentations in his applications.

Dr. Cohen timely noted this appeal, challenging both the 

magistrate judge’s grant of summary judgment to the Underwriters 

and denial of his motion in limine to exclude all references to 

the Consent Order.

II.

We first address the court’s grant of summary judgment to 

the Underwriters, which we review de novo. Bland v. Roberts, 

730 F.3d 368, 373 (4th Cir. 2013). In doing so, we “apply[] the 

same legal standards as the district court,” and “view[] all

facts . . . in the light most favorable to the nonmoving party.” 

T-Mobile Ne. LLC v. City Council of City of Newport News, Va., 

674 F.3d 380, 385 (4th Cir. 2012) (internal quotations marks and 

citation omitted). We can affirm a grant of summary judgment 

only where there is “no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law.” 

Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1355 (2015)

(citing Fed. R. Civ. P. 56(a)).
6

The Underwriters contend that Dr. Cohen provided materially 

false answers to three questions on his policy applications:

“Are you actively at work?” (to which he answered “Yes”); “Are 

you aware of any fact that could change your occupation or 

financial stability?” (to which he answered “No”); and “Are you 

a party to any legal proceeding at this time?” (to which he 

answered “No”).

Under Maryland law, which the parties agree applies here, a 

material misrepresentation on an insurance policy application 

justifies the rescission of a policy issued on the basis of that 

application. Stumpf v. State Farm Mut. Auto. Ins. Co., 251 A.2d 

362, 367 (Md. 1969). To decide whether an insurer has validly

rescinded a policy, a court must first determine whether the 

policyholder made a false statement on the application. 

Monumental Life Ins. Co. v. Taylor, 129 A.2d 103, 106 (Md. 

1957). If so, a court then considers whether the false 

statement was material to the risk assumed by the insurer. Id.

“Ordinarily and generally, whether a representation is true or 

false, or material to the risk, is for the jury to determine,” 

but when the insurer demonstrates falsity and materiality “by 

uncontradicted or clear and convincing evidence[,] the question 

may be one of law.” Id. at 106-07 (internal quotation marks and 

citations omitted).
7

Insurance policies, like other contracts, must be construed 

“as a whole to determine the parties’ intention.” Beale v. Am. 

Nat’l Lawyers Ins. Reciprocal, 843 A.2d 78, 89 (Md. 2004)

(internal quotation marks and citation omitted). A court will 

“examine the character of the contract, its purpose, and the 

facts and circumstances of the parties at the time of 

execution.” Pac. Indem. Co. v. Interstate Fire & Cas. Co., 488 

A.2d 486, 488 (Md. 1985). Policy terms are given “their 

ordinary and accepted meanings,” and “[t]he test is what meaning 

a reasonably prudent layperson would attach to the term.” Id. 

Policy language is ambiguous if it is “general” and “suggest[s] 

two meanings to a reasonably prudent layperson.” Id. at 489

(internal quotation marks and citation omitted).

Applying these principles,2 we can only conclude that each 

of the questions to which Dr. Cohen allegedly gave false answers

is subject to more than one reasonable interpretation, and so is 

ambiguous. First, the question “[a]re you actively at work?” is 

ambiguous because there are several possible interpretations of 

what it means to be “actively at work.” The Underwriters 

 2 The parties do not dispute that the same rules apply to 

ambiguities in a policy application, like that at issue here,

prepared by an insurer and made part of the insurance contract. 

Peoples Life Ins. Co. v. Jerrell, 318 A.2d 519, 522 (Md. 1974). 

Each policy certificate sent to Dr. Cohen specified that “[t]his 

certificate” and “any attached endorsements or other papers make 

up the entire contract,” and Dr. Cohen’s policy application was 

attached to each certificate.
8

contend that by answering “Yes,” Dr. Cohen represented that he 

was “perform[ing] surgery on a daily basis when he was, in fact, 

prohibited from performing surgery.” Appellees’ Br. 26. 

Dr. Cohen’s interpretation is more expansive. He maintains that 

he was “actively at work” during the suspension both because he 

was a licensed surgeon in the District of Columbia, and because 

he continued to perform various duties related to his Maryland 

practice, including administrative work, research, and 

professional development. He asserts that, during his 

suspension, he often arrived home from being “at work” in the 

office after midnight.

Neither of these interpretations is unreasonable; both find 

support in the insurance policies. As the Underwriters point 

out, on another portion of the application, Dr. Cohen indicated 

that his occupation was “surgeon” and his “daily duties” were 

“surgery,” possibly suggesting that this was his only “work” --

“work” he lacked the authority to perform in Maryland during his 

suspension. Maybe so. But the application does not define the 

phrase “actively at work,” does not limit its inquiry to 

Maryland work, and does not provide that being “actively at 

work” requires performance of the specific “daily duties” an 

applicant may have listed in the limited space available for 

that response.
9

The second question to which the magistrate judge found 

Dr. Cohen had provided a false response -- “[a]re you aware of 

any fact that could change your occupation or financial 

stability?” -- is also ambiguous. The Underwriters contend that 

“financial stability” refers to an applicant’s active income, 

not net worth, since disability insurance protects only active 

income. Because Dr. Cohen was suspended from performing his 

daily duties of “surgery” in Maryland, according to the 

Underwriters, he was no longer a “surgeon” and so lacked “active 

income.”

As Dr. Cohen notes, however, his Maryland suspension was 

temporary, and because he could still practice in the District 

of Columbia while suspended in Maryland, his “occupation” as a 

“surgeon” was not in danger of changing. Furthermore, the

application does not define “financial stability,” or provide

any guidance on how an applicant would determine whether his 

financial stability could “change.” “Financial stability” is a 

broad term that could refer to net worth and the record 

indicates that Dr. Cohen’s net worth apparently increased during 

his suspension.

Finally, the Underwriters maintain Dr. Cohen’s answer of 

“No” to a third question -- “[A]re you a party to any legal 

proceeding at this time?” -- was also materially false. The 

magistrate judge did not address whether Dr. Cohen falsely 
10

answered this question because the judge concluded that the 

question was ambiguous. We agree. The application does not 

define “legal proceeding.” And although each party cites to 

authority supporting its position as to whether the Board 

proceeding is or is not a “legal proceeding,” the standard is

“what meaning a reasonably prudent layperson would attach to the 

term.” Pac. Indem. Co., 488 A.2d at 488.

The Underwriters note that in executing the Consent Order, 

Dr. Cohen acknowledged representation by counsel and the “legal 

authority and jurisdiction of the Board.” Moreover, the Consent 

Order seems, on its face, to be a legal document because it 

contains findings of fact and conclusions of law. But the Board 

proceeding did not involve a court, and a person subject to a 

Board proceeding might well conclude, as Dr. Cohen asserts he 

did, that by agreeing to the suspension of his medical license, 

he would avoid a legal proceeding. Furthermore, at the time 

Dr. Cohen submitted his final application, the Board proceeding 

was over: he was not then a party to a Board proceeding, legal 

or not, at that time. Thus, this question, too, is susceptible 

to several interpretations.

In sum, the language of each question at issue here is 

ambiguous. Each of these general questions contains undefined 

terms susceptible to more than one reasonable interpretation, 

making them ill-suited to elicit the specific type of 
11

information the Underwriters claim to have requested. The Court 

of Appeals of Maryland has repeatedly made clear that an 

insurance application, as “a condition precedent” to an 

insurer’s reliance on it, “must be reasonably designed to elicit 

from [the applicant] the information which he possesses, 

material to the risk.” Stumpf, 251 A.2d at 367; see also

Jerrell, 318 A.2d at 522 (noting same).

Because of the ambiguity in the language of the policy 

application, we conclude that summary judgment was 

inappropriate. We therefore reverse the grant of summary 

judgment to the Underwriters and remand the case to the district 

court. On remand, the court may consider whether extrinsic or 

parol evidence can cure the ambiguity. Cheney v. Bell Nat’l

Life Ins. Co., 556 A.2d 1135, 1138 (Md. 1989) (“[i]n the event 

of an ambiguity . . . extrinsic and parol evidence may be 

considered”). If the court determines, based on such evidence, 

that the language is unambiguous and that Dr. Cohen made 

misrepresentations, it must then assess whether such 

misrepresentations were material. We express no opinion on that 

question. If, on the other hand, extrinsic evidence does not 

cure the ambiguity, that ambiguity must be construed against the 

insurer as the drafter of the instrument. Id. at 1138. We note 

that it is of course within the court’s discretion, on remand, 
12

to conduct any further proceedings that it finds appropriate, 

including further consideration of summary judgment.

III.

On remand, the district court will have the renewed 

opportunity to consider evidence of alleged material 

misrepresentations by Dr. Cohen. Thus, we turn to the 

magistrate judge’s denial of Dr. Cohen’s motion in limine. The 

judge concluded that the Consent Order suspending Dr. Cohen’s 

Maryland medical license was admissible in this case. Dr. Cohen

contends that this conclusion is contrary to Maryland law, which 

requires express consent of all parties before such an Order can 

be admitted in any civil proceeding.

Generally, “[w]e review rulings concerning the admission of 

evidence for abuse of discretion.” United States v. White, 405 

F.3d 208, 212 (4th Cir. 2005). However, because the magistrate 

judge based her decision to admit the Consent Order on a 

question of statutory construction, we review her interpretation 

of the statute de novo. Clark v. Absolute Collection Serv., 

Inc., 741 F.3d 487, 489 (4th Cir. 2014) (per curiam).

Whether a consent order rendered by the Maryland State 

Board of Physicians is admissible in a case like this one is an 

issue of first impression. In this diversity case, we consider 

this question “as the state court would do if confronted with 
13

the same fact pattern.” Roe v. Doe, 28 F.3d 404, 407 (4th Cir. 

1994). Accordingly, we begin by examining the language of the 

statute. Jones v. State, 647 A.2d 1204, 1206 (Md. 1994). Under 

Maryland law, as elsewhere, “[i]f the words of the statute, 

construed according to their common and everyday meaning, are 

clear and unambiguous and express a plain meaning, [a court 

must] give effect to the statute as it is written.” Id. at 

1206-07.

Title 14 of the Maryland Code, Health Occupations Article 

establishes the State Board of Physicians as a state agency with 

the authority to license, investigate, and discipline physicians

and other health care providers. Md. Code Ann., Health Occ. 

§ 14-201 et seq. (2014); What is the Maryland Board of 

Physicians?, Department of Health and Mental Hygiene: Maryland 

Board of Physicians (last visited Apr. 20, 2015), 

http://www.mbp.state.md.us/pages/whatis.html. The provision in 

question here, Health Occupations § 14-410, states:

(a) Except by the express stipulation and consent of 

all parties to a proceeding before the Board, a 

disciplinary panel, or any of its other investigatory 

bodies, in a civil or criminal action:

(1) The proceedings, records, or files of the 

Board, a disciplinary panel, or any of its other 

investigatory bodies are not discoverable and are 

not admissible in evidence; and

(2) Any order passed by the Board or disciplinary 

panel is not admissible in evidence.

(b) This section does not apply to a civil action 

brought by a party to a proceeding before the Board or 
14

disciplinary panel who claims to be aggrieved by the 

decision of the Board.3

The plain language of this statute bars the admission of “any 

order” of the Board in “a civil or criminal action” except by

consent, or when “a party to a proceeding before the Board” 

brings a civil action, claiming to be “aggrieved by a decision 

of the Board.” Id. There is nothing in § 14-410, or in any 

other portion of the statute, indicating that this admissibility 

bar applies only in malpractice actions, or that there is an 

exception for insurance coverage matters. Thus, solely by the

“express stipulation and consent of all parties to a proceeding 

before the Board” can a Board order be admitted into evidence in 

a civil proceeding like this one. Id. There was no consent 

here.

Moreover, the legislative history of § 14-410 indicates

that the General Assembly intended the provision to be a 

straightforward bar to the admission of all Board orders, except 

with express consent of all parties to the underlying Board 

proceeding. The predecessor to § 14-410 was § 130(q) of Article 

43 of the Maryland Code. The legislature added § 130(q) to 

Article 43 for the express “purpose of prohibiting the admission 

of certain records of the [Board] into evidence in any civil or 

 3 The Underwriters do not contend that the sole statutory 

exception contained in § 14-410(b) applies here.
15

criminal proceeding, with certain exceptions.” 1976 Md. Laws 

1599 (emphasis added).4 In Unnamed Physician v. Commission on 

Medical Discipline, the Court of Appeals of Maryland noted that 

§ 130(q) did just that: it “forbids the record of [Board] 

proceedings to be admitted into evidence in any proceeding, 

civil or criminal, except by the express consent of the 

parties.” 400 A.2d 396, 397 (Md. 1979).

Nor, contrary to the Underwriters’ contention, does the 

fact that the Consent Order is public somehow render it 

admissible in a judicial proceeding. The Consent Order states

on its face that it “shall be a public document” under the

Maryland Public Information Act. See Public Information Act, 

Md. Code Ann., Gen. Prov. §§ 4-101 - 4-601 (2014). That statute 

“allows generally for the inspection and receipt of copies of 

public records.” Waterkeeper Alliance, Inc. v. Md. Dep’t of 

 4 Section 130(q) provided, in relevant part:

The records of any proceeding before the [Board] or of 

any of its investigatory bodies or any order passed by 

the [Board] may not be admitted into evidence in any 

proceeding, civil or criminal, except by the express 

stipulation and consent of all parties to the 

proceeding.

1976 Md. Laws 1599.
16

Agric., 96 A.3d 105, 108 (Md. 2014).5 Each disciplinary order is 

also publicly available on the Internet. See Md. Code Ann., 

Health Occ. §§ 14-411.1(b)-(d)(2) (requiring the Board to

“create and maintain a public individual profile” on each 

licensed physician, available to the public on the Internet,

which includes “[a] description of any disciplinary action taken 

by the Board . . . within the most recent 10-year period” and 

“includes a copy of the public order”). But nothing in either 

the Public Information Act or Title 14 of the Health Occupations 

Article requires that public documents be admissible in judicial 

proceedings.

The Underwriters certainly cite no authority for the 

general proposition that a document is admissible solely because

it is public. Nor can they. That a document is public does not

remove it from the purview of the rules of evidence, or a 

statute explicitly governing its admissibility. See The Md.

Inst. for Continuing Prof. Ed. of Lawyers, Inc., Maryland Trial 

Judges’ Benchbook, Evidence, § 4-804(g)(1) (1999) (noting that 

“[s]ome public records . . . must meet specific statutory 

requirements to be admissible”); 10 Eric. C. Surette & Susan L. 

 5 The Consent Order cited to the 2009 codification of the 

Public Information Act. While this appeal was pending, the 

Maryland General Assembly recodified the Act at §§ 4-101 – 6-601

of the Code’s General Provisions Article, but made no changes 

affecting Board orders being public documents. See 2014 Md. 

Laws Ch. 94 (H.B. 270).
17

Thomas, Maryland Law Encyclopedia, Evidence, § 95 (2015) (noting 

that the “admissibility of public records is subject to the 

general rules of evidence” governing, for example, relevancy, 

competency, materiality, and authenticity). And if a document’s 

public nature does not render that document automatically 

admissible, then the fact that Dr. Cohen agreed to the Order’s

being public does not mean, as the Underwriters assert, that he 

“broadly consented” to its admissibility. Appellees’ Br. 16.

In sum, no statutory language or legislative history in 

either the Maryland Public Information Act or Title 14 of the 

Health Occupations Article or any other Maryland law indicates

that by making Board orders public, the legislature intended to 

repeal or otherwise limit the admissibility bar that § 14-410 so 

explicitly establishes. See Comm’n on Med. Discipline v. 

Bendler, 373 A.2d 1232, 1234 (Md. 1977) (noting that “the law 

does not favor repeal by implication.”). It is axiomatic that 

“all statutory provisions which relate to the same subject 

matter . . . should be construed together and harmonized as far 

as possible.” Unnamed Physician, 400 A.2d at 401; see also

Bendler, 373 A.2d at 1234 (noting same). This well-established 

approach applies here and thus requires a court to hold that, 

while public, Board orders are not admissible in a civil or 

criminal action absent consent, except for in an action brought 

by a party aggrieved by a Board decision.
18

We note that our conclusion not only comports with the 

plain language of the Maryland statutes at issue here and reads 

those provisions in harmony -- it also makes good practical 

sense. Requiring disciplinary orders to be public gives people 

access to essential information about the qualifications of 

their physicians. Barring the admission of Board disciplinary 

orders in later civil and criminal actions encourages physicians 

to cooperate during Board proceedings. Such cooperation

strengthens the Board’s ability to conduct proceedings that are 

thorough and fair, and thereby advances the Board’s efforts to 

protect the health and safety of the public.6

IV.

For the foregoing reasons, the judgment of the district 

court is reversed and the case is remanded for further 

proceedings consistent with this opinion.

REVERSED AND REMANDED

 6 If, on remand, the district court determines that 

extrinsic evidence submitted by the parties cures the ambiguity

in the policy application questions, the court may also need to 

consider whether references to the inadmissible Order or to the 

Board’s proceedings against Dr. Cohen are also inadmissible.

Because the court found the Order to be admissible, that 

question was neither addressed below nor properly briefed before 

us. Thus, we decline to resolve it in the first instance. That 

said, if the court concludes that references to the Order are 

indeed inadmissible, we believe redaction may be a prudent use 

of the district court’s discretion.