**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
. , Defendant s - 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 Ju dge 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 (collectiv ely, “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 Cohen”), seeking a declaration that they properly rescinded his disability insurance policies.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 Underwrite rs . 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 consist s of q uestions pertaining to an applicant’s personal, fina n cial, and medical information. At issue here ar e Dr. Cohe n’s responses to three of those questions. When asked “Are yo u actively at work? , ” Dr. Cohe n checked the “Yes” box
. In response to the question “Are you aware of any fact that could change your occupation or financial3 stability? , ” Dr. Cohen checked the “ No” box. When asked “ A re 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 t he policies became effective on that date.
O n April 12, 2011, shortly after submi ssion 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

- mo nth 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, o ne month after the disabil ity policies went into effect, Dr. Cohen sought medical treatment

1 On December 19, 2012, the D istrict of C olumbia Board of Medicine also issued an order placing Dr. Cohen on probation for five years. It, too, imposed various limitations and restrictio ns 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
Cons ent Order. The Underwriters then notified Dr. Cohen that they intended to rescind the policies, and issued a check

r efunding his premium payments. Dr. Cohen initiated the policies’ grievance procedures , under which the rescission was affirmed
. He request ed 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 j udge. 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, t he magistrate judge orally denied the motion , concluding that the Consent Order was admissible
. T he parties then filed cross - motion s for summary5 judgment
. In a memorandum o pinion, 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 insu rance policies because Dr. Cohen made material misrepresentations in his applications. Dr. Cohen timely noted this ap peal , challenging both the magistrate judge’s grant of summary judgment to the Underwriters and denial of his motion in limine to exclude a ll references to the Consent Order
.

II. We first address the court’s grant of summary judgm ent to the Underwriters, which w e review de novo. Bland v. Roberts , 730 F.3d 368, 373 (4th Cir. 2013). In doing so , we “appl y [] 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 a ny material fact and the mov ant 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 T he Underwriters contend that Dr. Cohen provided materially false answers to three questions on his policy applications : “Are yo u actively at work?” ( to which he answered “Yes”); “Are
you aware of any fact that could chang e your oc cupation 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 M aryland law , which the parties agree applies here, a material misrepresentation on an in surance 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 )
. T o decide whether an insurer has validly rescind ed a policy, a court must first determine wheth er 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 insure r. 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 ques tion may be one of law.” Id. at 106

- 07 (internal quotation marks and citations omitted).7 I nsurance policies, like other contracts, must be construed

“ as a whole to det ermine 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). P olicy terms are given “their ordinary and accepted m eaning s , ” an d “[t]he test is what meaning a reasonably prudent layperson wo uld attach to the term. ” Id. Policy language is ambiguous if it is “general” and “suggest[s]
tw o meanings to a reasonably prudent layperson.” Id. at 489 (internal quotation marks and citation omitted)
. Applying these principles, 2 we can only conclude that e ach 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.” T he 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 po licy 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 b y answering “Y es,” Dr. Cohen represented that he was “perform[ing] surgery on a daily basis when he was, in fact, prohibited from perfor ming surgery.” Appellee s’ 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 arri ved home from being “at work” in the office after midnight. Neither of these interpretations is unreasonable; both find support in the insurance policies. As t he Underwriters point
out , on another portion of the application, Dr. Cohen indicated that his occupation was “ surgeon ” and his “daily duties” were “surgery,” possibly suggesti ng that this was his only “work ”

-- “work” he lacked the authority to perform in Maryland during his
suspen sion. Maybe so. B ut the application does not defi ne 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 l isted 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 aw are of any fact that could change your occupation or financial stability ? ”

-- is also am biguous. 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 performi ng 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, t he application does not define “financial stability,” or provide
any guidance on how an applicant would determine whether his financial stability could “change.” “ F ina ncial stability” is a broad term that could refer to net worth and the record indicates that Dr. Cohen’s net worth apparently in creased 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 falsely10 answered this question because the judge concluded that the question was ambiguous. We agree. The application does not define “legal proceeding.” And a lthough each party cite s 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 laype rson would attach to the
term. ” Pac. Indem. Co
. , 488 A.2d at 488. The Underwriters note that i n executing the Consent O rder, Dr. Cohen acknowledged representation by counsel and the “legal authorit y and jurisdiction of the Board. ” Moreover, the Consent Order seems, on its face, to be a legal document because it contains f indings of fact and c onclusions of l aw. 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 suspensio n 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 proceedi ng, legal or not, at that time. Thus, this question, too, is susceptible
to several interpretation s . In sum, the language of each question at issue here is ambiguous. E ach of t hese general questions contains undefined
terms susceptible to more than one reasonable interpretation , making them i ll

- suited to elicit the specific type of11 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 re asonably 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 ambiguit y 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 e xtrinsic 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 ambiguit y , that ambiguity must be construed against the insurer as the drafter of the instrument. Id. at 1138
. W e 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, w e 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

r equires express co nsent of all parties before such an O rder can be admitted in a ny 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 interpr etation of the statute de novo. Clark v. Absolute Collection Serv.,
Inc. , 741 F.3d 487, 4 89 (4th Cir. 2014) (per curi am)
. Whether a c onsent o rder 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 with13 the sa me fact pattern
. ” Roe v. Doe , 28 F.3d 404, 407 (4th Cir. 1994). Accordingly, w e begin by examining the language of th e
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 O ccupations 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 Occ upations § 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 an y 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 or14 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 t he Board ” brings a civil action, claiming to be “aggrieved by a decision of the Board
. ” Id. There is n othing in § 14

- 410, or in any other portion of the statute, indicat ing 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 t o 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 indicate s that the General Assembly intended th e provision to be a straightforw ard bar to the admission of all Board order s , 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 expre ss “ 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
. S ee Public Informatio n Act, Md. Code Ann., Gen. Prov. §§ 4

- 101

- 4

- 601 (2014). That statute
“a llows 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 i nto 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 E ach disciplinary orde r 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 th e public order” )
. But n othing in either the Public Information Act or Title 14 of the Health Occupations Article requires that public documents be admissible in judicial proceedings
. T he Underwriters certainly cite no authority for the general proposition that a document is admissible solely because it is public. Nor can they. T hat 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 p ublic 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 th e 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 e vidence ” governing, for example, relevancy, competency, materiality, and authenticity)
. And if a document’s
p ublic 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 “t he 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 40 1 ; see also Bendler , 3 73 A.2d at 1234 (noting same)
. T his well

- established approach appl ies 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 W e note that o ur 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 qu alifications of the ir physician s . B arring t he admission of Board disciplinary order s i n later civil and criminal actions encourages physician s 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 proce edings 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 c oncludes that references to the Order are indeed inadmissible, we believe redaction may be a prudent use of t he district court’s discretion.