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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 9, 2004 Decided May 7, 2004

No. 03-7075

NATIONAL RAILROAD PASSENGER CORPORATION,

APPELLANT

v.

LEXINGTON INSURANCE COMPANY, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 01cv01815)

William G. Ballaine argued the cause and filed the briefs

for appellant.

Frederick J. Wilmer argued the cause for appellees. With

him on the brief was Michael H. McConihe.

Before: SENTELLE, TATEL and ROBERTS, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

SENTELLE, Circuit Judge: This is an insurance-coverage

suit the National Railroad Passenger Corporation, commonly

known as ‘‘Amtrak,’’ brought against several of its ‘‘excess

liability’’ insurers. The case is in federal court because

Amtrak is a federal corporation and the federal government

owns more than one-half of its stock. 28 U.S.C. § 1349.

Amtrak was held liable for and paid a personal injury judgment of $25 million. Amtrak’s suit seeks reimbursement for

much of this sum from the insurers who insured Amtrak for

personal-injury liability in excess of $10 million. The sole

policy under which Amtrak is attempting to recover in this

action was in effect from 1997–1998. The insurers moved for

summary judgment, primarily on the ground that the plain

terms of the policy allocate Amtrak’s claim not to the 1997–98

policy, but rather to a different, less generous excess liability

policy in effect from 1996–1997. The district court held that

Amtrak could not recover under the 1997–98 policy and

therefore granted the insurers summary judgment. We

agree with the district court, hold that Amtrak may not

recover under the 1997–98 policy, and affirm the district

court’s judgment. We express no view on whether Amtrak is

entitled to reimbursement under the 1996–97 policy.

I.

Two sets of Amtrak’s ‘‘excess liability’’ insurance policies lie

at the core of this dispute. Both insured Amtrak against

liability for personal-injury claims in excess of $10 million.

The first set covered the policy period October 1, 1996,

through September 30, 1997; the second covered the period

October 1, 1997, through September 30, 1998. Presumably to

spread the risk, multiple insurers provided coverage under

these policies, and the parties agree that the language of the

1997–98 policy in effect between Amtrak and each individual

insurer is identical in all respects relevant to this appeal (we

thus refer to that common language as the ‘‘1997–98 policy’’).

The 1997–98 policy was titled a ‘‘claims-made liability policy.’’ ‘‘Claims-made’’ is the term generally used to describe

insurance policies under which the insurer agrees to indemni-
3

fy the insured party against all claims made during the period

of the policy, regardless whether the incident that gave rise

to the claim occurred during the policy term. Black’s Law

Dictionary 809 (7th ed. 1999). The 1997–98 policy, however,

had, in all-capital letters at the top of the policy, the following

qualification:

THIS IS AN EXCESS LIABILITY CLAIMS MADE

POLICY WHICH IS NOT SUBJECT TO THE TERMS

AND CONDITIONS OF ANY OTHER INSURANCE

AND CONTAINS PROVISIONS WHICH MAY BE

DIFFERENT FROM THOSE OF ANY OTHER INSURANCE.

IT SHOULD BE READ CAREFULLY BY THE INSURED.

The scope of the 1997–98 policy’s basic coverage was defined nominally in claims-made terms. In particular, the

policy provided that the insurers agreed

subject to the Insuring Agreements, Exclusions, Conditions, Definitions and Declarations contained in this Policy, to indemnify [Amtrak] TTT for damages in respect of

a Claim which is first made in writing against [Amtrak]

during the period of this Policy [October 1, 1997, though

September 30, 1998] TTT resulting from an Accident.

The term ‘‘Accident,’’ however, was a term of art that the

policy defined. Eleven pages later, in the definitions portion

of the policy, the term ‘‘Accident’’ was defined as

an event which first commences at a specific time after

the retroactive date [October 1, 1995] and prior to the

expiry date [September 30, 1998] and of which [Amtrak’s] Claim Agent first becomes aware during the

Policy Period [October 1, 1997, through September 30,

1998] and up to 120 days thereafter.

The policy’s definitions section also explicitly defined

‘‘Claim.’’ That term was defined as ‘‘that part of any written

demand received by [Amtrak] for damages covered by this

Policy, including the service of suit, institution of arbitration

proceedings or receipt of an attorney’s lien.’’
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The event that gave rise to this coverage dispute occurred

on August 29, 1997, when Kimberly Alcorn was seriously

injured in a railroad crossing automobile accident in Missouri. See Alcorn v. Union Pac. R.R. Co., 50 S.W.3d 226,

231 (Mo. 2001). Union Pacific Railroad Company owned and

operated the crossing, but Amtrak had contractually agreed

to indemnify Union Pacific for any liability arising out of

such accidents. Alcorn brought a personal-injury action

against Amtrak and Union Pacific in Missouri state court;

the indemnification agreement meant that Amtrak was fully

responsible for Union Pacific’s liability. The jury awarded

Alcorn $40 million in compensatory damages and $120 million

in punitive damages, but the trial court remitted the compensatory damage award to $25 million and the punitive award

to $50 million. Id. On appeal, the Missouri Supreme Court

struck down the punitive damage award entirely, but upheld

the remitted compensatory award. Id. at 247–49.

The parties agree that Amtrak first learned of the event by

a telephone call placed to one of its claim agents on September 2, 1997. Alcorn did not serve Amtrak with her suit,

however, until January 20, 1998. Pursuant to its operating

agreement with Union Pacific, Amtrak handled the defense of

the litigation.

After Amtrak paid the $25 million judgment, it sought

reimbursement from its insurers under the 1997–98 policy.

The insurers refused to cover the accident under that policy.

In response, Amtrak sued them in federal district court

seeking coverage. The insurers moved for summary judgment, claiming that the policy entitled them to treat the

Alcorn claim as having arisen at the time Amtrak’s claim

agent became aware of the accident, September 2, 1997, less

than a month before the 1997–98 policy period began. Amtrak took the position that the claim arose instead when

Alcorn served her lawsuit on Amtrak, January 20, 1998,

during the 1997–98 policy period—and therefore that the

1997–98 policy covered the Alcorn claim. The district court

agreed with the insurers and granted them summary judgment. This appeal followed.
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II.

The only issue we need address in this case is whether the

language of the 1997–98 policy covers the Alcorn claim. The

parties agree that under either District of Columbia or Missouri law, the only two jurisdictions whose law potentially

could apply in this case, we must follow the plain language of

the insurance agreement unless that language is ambiguous.

Because, as we explain more fully below, this rule of decision

is sufficient to dispose of this case, we need not delve into

choice of law issues, as there is no conflict of law for this

Court to resolve. See Cruz v. Am. Airlines, Inc., 356 F.3d

320, 331–32 (D.C. Cir. 2004) (noting same). We should affirm

the district court’s grant of summary judgment if we believe

the court was correct that the insurers are entitled to judgment, viewing the facts in the light most favorable to the

nonmoving party. Id. at 328.

The key language is the policy’s basic coverage provision,

which, again, provided that the insurers agreed

subject to the Insuring Agreements, Exclusions, Conditions, Definitions and Declarations contained in this Policy, to indemnify [Amtrak] TTT for damages in respect of

a Claim which is first made in writing against [Amtrak]

during the period of this Policy [October 1, 1997, though

September 30, 1998] TTT resulting from an Accident.

Amtrak argues that the Alcorn claim ‘‘unquestionably’’ falls

within this provision, because Alcorn served Amtrak with her

suit on January 20, and that was her first written demand for

payment. Amtrak infers from this fact that her claim was

‘‘first made in writing’’ at that date, during the 1997–98 policy

period of October 1, 1997, through September 30, 1998, and

therefore is covered by the 1997–98 policy.

Amtrak’s argument is wrong. The policy did not, as Amtrak’s argument suggests, cover all claims first made in

writing during the policy period. Instead, the policy covered

claims first made in writing during the policy period ‘‘resulting from an Accident.’’ This distinction makes all the difference in this case, because the Alcorn claim did not result from
6

an ‘‘Accident,’’ and thus was not covered under the plain

terms of the 1997–98 policy.

The definition of the term ‘‘Accident’’ in the policy makes

this conclusion clear. ‘‘Accident,’’ once again, was defined as

an event which first commences at a specific time after

the retroactive date [October 1, 1995] and prior to the

expiry date [September 30, 1998] and of which [Amtrak’s] Claim Agent first becomes aware during the

Policy Period [October 1, 1997, through September 30,

1998] and up to 120 days thereafter.

(Emphasis added.) The Alcorn accident was not an ‘‘Accident’’ within the meaning of this provision. It is undisputed

that Amtrak’s claim agent first became aware of that event on

September 2, 1997, nearly a month before the 1997–98 policy

period began. Therefore, the policy did not cover the Alcorn

claim. Amtrak is not entitled to coverage under the policy.

The district court was therefore correct that the insurers are

entitled to judgment as a matter of law.

Amtrak’s argument to the contrary is not persuasive. Amtrak’s primary argument, in a nutshell, is that the insurance

agreement is ambiguous as to whether the Alcorn claim is

covered, and that in view of the generic ‘‘claims-made’’ nature

of the policy, we should read the policy to cover the Alcorn

claim, as that claim was ‘‘made’’ during the policy period. We

are willing to assume, without deciding, that Amtrak would be

the beneficiary of any such ambiguity were one present in the

policy. But the policy is anything but ambiguous. The

definition of ‘‘Accident’’ could hardly be more clear that

Alcorn’s claim did not result from an accident in the special

sense that word is used in the insurance agreement. Thus,

we do not, as Amtrak colorfully puts it, ‘‘proceed down a

coverage rabbit hole into a wonderland where indemnity

coverage under the 1997–98 policies turns out not to be ‘in

respect of a Claim which is first made in writing against the

Insured during the period of this Policy.’ ’’ We hold instead

that even though the Alcorn claim was a claim first made in

writing against Amtrak during the policy period, it did not
7

result from an ‘‘Accident’’ within the meaning of the policy

and thus was not covered.

III.

For the foregoing reasons, we affirm the judgment of the

district court.