PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1801

INTERSTATE FIRE AND CASUALTY COMPANY,

Plaintiff - Appellant,

v.

DIMENSIONS ASSURANCE LTD.,

Defendant - Appellee.

Appeal from the United States District Court for the District of 

Maryland, at Greenbelt. George J. Hazel, District Judge. 

(8:13-cv-03908-GJH)

Argued: September 23, 2016 Decided: December 6, 2016 

Before TRAXLER, SHEDD, and FLOYD, Circuit Judges.

Vacated and remanded by published opinion. Judge Traxler wrote 

the opinion, in which Judge Shedd and Judge Floyd joined.

ARGUED: Paulette Steffes Sarp, HINSHAW & CULBERTSON LLP, 

Minneapolis, Minnesota, for Appellant. Robert Lawrence 

Ferguson, Jr., FERGUSON, SCHETELICH & BALLEW, P.A., Baltimore, 

Maryland, for Appellee. ON BRIEF: Suzanne L. Jones, HINSHAW & 

CULBERTSON LLP, Minneapolis, Minnesota; Robert C. Morgan, 

MORGAN, CARLO, DOWNS & EVERTON, P.A., Hunt Valley, Maryland, for 

Appellant.
2

TRAXLER, Circuit Judge:

The question in this insurance coverage dispute is whether 

a nurse employed by a staffing agency and assigned to work at a 

hospital qualifies as an “employee” of the hospital under the 

hospital’s insurance policy. The district court answered that 

question in the negative and granted summary judgment to the 

hospital’s insurer. For the reasons set forth below, we vacate 

the district court’s order and remand for further proceedings.

I.

A.

Favorite Healthcare Staffing (the “Agency”) is an 

employment agency that provides nurses and other health care 

professionals to Laurel Regional Hospital (the “Hospital”). The 

contract between the Agency and the Hospital (the “Staffing 

Agreement”) states that the Agency-provided practitioners 

assigned to the Hospital are the employees of the Agency, not 

the Hospital. 

Under the Staffing Agreement, the Hospital is responsible 

for “orient[ing] [Agency practitioners] to [their] job 

description responsibilities and all policies and procedures 

necessary to meet [Hospital] performance standards.” J.A. 25. 

The Hospital has the right under the Agreement to “float” Agency 

practitioners to areas to which they were not originally 

assigned and to immediately terminate any practitioner who 
3

refuses to float. The Agreement also gives the Hospital the 

right to “dismiss any Practitioner at any time if [the Hospital] 

determines that a Practitioner is unsatisfactory.” J.A. 28.

As established through discovery, no Agency staff 

supervises the practitioners on site at the Hospital or provides 

medical-care instructions to the practitioners. The Hospital 

dictates the type of care to be provided to patients by Agency 

practitioners; whether Agency practitioners or direct-hire 

employees are involved, the Hospital expects the same level of 

care to be provided to patients. If an Agency practitioner 

refuses to comply with Hospital directions, the Hospital may 

immediately terminate the practitioner.

B.

Appellant Interstate Fire and Casualty Company issued a 

professional liability insurance policy to the Agency that 

covered doctors and nurses who were employed by the Agency and 

placed by the Agency to work at various medical facilities. 

Appellee Dimensions Assurance Ltd., an insurance company wholly 

owned by the company that owns the Hospital, issued the Hospital 

the liability insurance policy (the “Policy”) at issue in this 

case.

The Policy provides coverage to the Hospital and to other 

persons or entities who meet its definitions of “protected 

person.” The Policy consists of three main parts, one providing 
4

coverage for “General Liability,” another providing coverage for 

“Hospital Professional Liability,” and another providing 

coverage for “Group Physicians Professional Liability.” J.A. 

105-06.

The professional-liability section of the Policy includes 

multiple categories of persons and entities in its definition of 

“protected person,” including certain administrators and 

committee and board members. In a provision titled “Worker 

Protection,” this section of the Policy provides that

[The Hospital’s] present and former employees, 

students and authorized volunteer workers are 

protected persons while working or when they did work 

for you within the scope of their duties. Unless 

added by amendment to this Agreement, interns, 

externs, residents, or dental, osteopathic or medical 

doctors are not named protected persons for 

professional injury, even if they are your employees, 

students or authorized volunteer workers.

J.A. 134 (emphasis added).

Under the general-liability portion of the Policy, the 

“Worker Protection” clause extends “protected person” status to 

certain Hospital workers:

[The Hospital’s] present and former employees, 

students and authorized volunteer workers are 

protected persons while working, or when they did work 

for you within the scope of their duties. Persons 

working for you on a per diem, agency or contract 

basis are not protected persons.
5

J.A. 119 (emphasis added). The Policy does not define 

“employee,” nor does it incorporate or otherwise refer to the 

Staffing Agreement between the Agency and the Hospital.

C.

In 2012, a former patient brought a medical malpractice 

action (the “Underlying Action”) against the Hospital and 

several of its doctors and nurses. One of the defendants was 

Nurse Cryer, who had been placed by the Agency at the Hospital. 

Claiming that she was not an employee of the Hospital, 

Dimensions refused to defend Cryer. Interstate thereafter 

undertook to defend Cryer, ultimately settling the case against 

her for $2.5 million and incurring nearly $500,000 in defense 

costs.

Interstate subsequently filed this equitable contribution 

action against Dimensions in federal district court. Interstate 

alleged that, under the terms of the Policy, Nurse Cryer 

qualified as an employee of the Hospital and thus a “protected 

person” entitled to coverage under the Policy. Because the 

coverage provided by the Dimensions policy was primary and the 

coverage provided by the Interstate policy was “excess” in cases 

where there was other valid insurance coverage, Interstate 

alleged that Dimensions was responsible for the entire amount it 

paid to defend and settle the claims against Nurse Cryer.
6

The district court granted summary judgment in favor of 

Dimensions. Relying on the terms of the Staffing Agreement 

between the Hospital and the Agency, the district court held 

that Agency-provided workers were not employees within the 

meaning of the Policy. Interstate appeals, arguing that Nurse 

Cryer qualifies as an employee under the plain terms of the 

Policy and that the district court erred by looking to a 

separate contract between different parties to determine the 

meaning of the Policy.

II.

This insurance dispute, which falls within our diversity 

jurisdiction, is governed by the law of Maryland, where the 

action was filed and the insurance policy delivered. See Klaxon 

Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)

(explaining that a federal court sitting in diversity must apply 

the choice of law principles of the forum state); 

Perini/Tompkins Joint Venture v. Ace Am. Ins. Co., 738 F.3d 95, 

100 (4th Cir. 2013) (“In insurance contract disputes, Maryland 

follows the principle of lex loci contractus, which applies the 

law of the jurisdiction where the contract was made. For choice 

of law purposes, a contract is made where the last act is 

performed which makes the agreement a binding contract. 

Typically, this is where the policy is delivered and the 
7

premiums paid.” (internal quotation marks and citation 

omitted)).

Maryland courts interpret insurance policies “with the same 

principles and rules of construction . . . use[d] to interpret 

other contracts.” Connors v. Gov’t Employees Ins. Co., 113 A.3d 

595, 603 (Md. 2015). “Unless there is an indication that the 

parties intended to use words in the policy in a technical 

sense, they must be accorded their customary, ordinary, and 

accepted meaning.” Maryland Cas. Co. v. Blackstone Int’l Ltd., 

114 A.3d 676, 681 (Md. 2015) (internal quotation marks omitted).

Accordingly, “the written language embodying the terms of an 

agreement will govern the rights and liabilities of the parties, 

irrespective of the intent of the parties at the time they 

entered into the contract.” Long v. State, 807 A.2d 1, 8 (Md. 

2002) (internal quotation marks and alteration omitted). 

There is no dispute that, if the other requirements of the 

Policy are satisfied, the claims asserted against Nurse Cryer in 

the Underlying Action fall within the scope of the professionalliability section of the Policy. The question, then, is whether 

Cryer qualifies as a protected person under that section of the 

Policy.

A.

Interstate argues on appeal that Nurse Cryer qualifies as a 

Hospital employee and therefore a protected person under the 
8

unambiguous provisions of the professional-liability section of 

the Policy. As Interstate points out, the Policy clearly 

excludes Agency-provided practitioners from its definition of 

“employee” in the general-liability portion of the Policy, but 

it does not exclude Agency-provided practitioners from the 

definition in the professional-liability section of the Policy, 

which is the section applicable to the claims at issue in this 

case. In Interstate’s view, the fact that the general-liability 

definition excludes Agency-provided practitioners while the 

professional-liability definition does not exclude them 

demonstrates that the Policy provides coverage for Nurse Cryer. 

The presence of this language in the general-liability section 

shows that Dimensions knew the Hospital was staffed by directhire and Agency-provided practitioners and that the word 

“employee” as used in the Policy includes direct-hire employees 

and Agency-provided practitioners. After all, if “employee” did 

not include Agency-provided practitioners, then there would have 

been no need to specifically exclude them from the generalliability definition of “protected person.” See Rigby v. 

Allstate Indem. Co., 123 A.3d 592, 597 (Md. Ct. Spec. App. 2015) 

(noting the “basic principle of contract interpretation” that 

courts should “give effect to each clause of an insurance 

policy, and avoid treating either term as surplusage” (internal 

quotation marks and citation omitted)); see also Gates, Hudson & 
9

Assocs., Inc. v. Fed. Ins. Co., 141 F.3d 500, 503 (4th Cir. 

1997) (“Federal’s careful delineations of specific types of 

injuries at other points in the policy suggest that the insurer 

knew how to limit the term when it desired to do so.”).

We agree. Dimensions’ decision to use different language

in different sections of the Policy when addressing the coverage 

available to “employees” must be understood as an intentional 

decision. Cf. NISH v. Cohen, 247 F.3d 197, 203–04 (4th Cir. 

2001) (“The omission by Congress of language in one section of a 

statute that is included in another section of the same statute 

generally reflects Congress’s intentional and purposeful 

exclusion in the former section.”). Under Maryland law, we must 

respect this decision and apply the Policy in a way that gives 

effect to the full “Worker Protection” clause in the generalliability section and to the full “Worker Protection” clause in 

the professional-liability section. The only way to do that is, 

as Interstate argues, to conclude that the term “employee” as 

used in the Policy includes Agency-provided Hospital workers as 

well as direct-hire Hospital workers. Accordingly, because the 

professional-liability section of the Policy extends “protected 

person” status to Hospital workers without excluding Agencyprovided workers, we conclude that Nurse Cryer is a protected 

person under the professional-liability section of the Policy.
10

Dimensions, however, insists that the Policy itself 

prevents us from considering the language of the generalliability section as a guide to the meaning of the professionalliability section of the Policy. The “General Rules” portion of 

the Policy states that each “agreement” (the three sections of 

the policy separately addressing coverage for general liability, 

hospital professional liability, and group physicians’ 

professional liability) must “be read and interpreted separately 

and independently of the other and no terms, conditions or 

exceptions from one agreement shall be construed to apply to any 

other agreement or provide a basis for interpretation of any 

other agreement.” J.A. 110 (emphasis added). Relying on this 

provision, Dimensions contends that this court may not look to 

the terms of the general-liability section to determine the 

scope of coverage provided under the professional-liability

section.

We need not decide whether the Policy provision operates in 

the manner urged by Dimensions. Even if we examine the 

professional-liability section of the Policy in isolation, 

without consideration of the terms of the other sections of the 

Policy, we still conclude that the Policy provides coverage for 

the claims asserted against Nurse Cryer.
11

B.

If we examine the professional-liability portion of the 

Policy alone, we are presented with an insurance policy that 

provides coverage to Hospital “employees” but does not define 

the term. In the absence of a definition or other “indication 

that the parties intended to use words in the policy in a 

technical sense,” Lloyd E. Mitchell, Inc. v. Maryland Cas. Co., 

595 A.2d 469, 475 (Md. 1991), unambiguous policy language must 

be given its “customary, ordinary, and accepted meaning, as 

determined by the fictional reasonably prudent lay person,” 

Connors 113 A.3d at 603 (internal quotation marks omitted).

A policy term “is not ambiguous simply because it is 

general in nature or undefined by the policy.” Walker v. 

Fireman’s Fund Ins. Co., 505 A.2d 884, 886 (Md. Ct. Spec. App. 

1986). Instead, a term “is considered ambiguous if, to a 

reasonably prudent person, the term is susceptible to more than 

one meaning.” Connors, 113 A.3d at 603 (internal quotation 

marks omitted). To determine whether a policy term is 

ambiguous, we look only to the policy itself; we may not look to 

extrinsic sources to create an ambiguity. See Univ. of Balt. v. 

Iz, 716 A.2d 1107, 1121 (Md. Ct. Spec. App. 1998); cf. Schneider 

v. Continental Cas. Co., 989 F.2d 728, 731 (4th Cir. 1993) (“A 

court may not, where the contractual language is clear, invite 

or accept the submission of extrinsic evidence, ‘find’ ambiguity 
12

in the contractual text based upon that evidence, and resolve 

the found ambiguity by resort to that extrinsic evidence.”).

Interstate contends that “employee” is an unambiguous term 

whose ordinary, customary meaning tracks the common-law rightto-control test used to determine the existence of a masterservant relationship. See Whitehead v. Safway Steel Prods., 

Inc., 497 A.2d 803, 808-09 (Md. 1985) (“This Court has 

traditionally considered five criteria in determining whether or 

not an employer/employee relationship exists between two 

parties. These criteria . . . include (1) the power to select 

and hire the employee, (2) the payment of wages, (3) the power 

to discharge, (4) the power to control the employee's conduct, 

and (5) whether the work is part of the regular business of the 

employer.”). Interstate also contends that the ordinary meaning 

of “employee” encompasses “borrowed” employees like Nurse Cryer, 

who are paid by one employer but work under the direct control 

of another. See, e.g., Temp. Staffing, Inc. v. J.J. Haines & 

Co., 765 A.2d 602, 603 n.1 (Md. 2001).

We agree with Interstate that the undefined term “employee” 

is unambiguous. See C & H Plumbing & Heating, Inc. v. Employers 

Mut. Cas. Co., 287 A.2d 238, 239-40 (Md. 1972) (finding no 

ambiguity in clause excluding coverage for dishonest or criminal 

act of “employee of the insured”); accord Interstate Fire & Cas. 

Co. v. Washington Hosp. Ctr. Corp., 758 F.3d 378, 387 (D.C. Cir. 
13

2014) (policy providing coverage to all “employees” of hospital 

was unambiguous); Nationwide Mut. Fire Ins. Co. v. Guman Bros. 

Farm, 652 N.E.2d 684, 686 (Ohio 1995) (“[T]he term “employee” is 

not defined, but does have a plain and ordinary meaning.”). And 

we likewise agree with Interstate that the common and ordinary 

meaning of “employee” incorporates the right-to-control test. 

See Interstate Fire, 758 F.3d at 386-87 (applying common-law 

“right-to-control” test to define “employee” for purposes of 

insurance policy issued to hospital utilizing nurses provided by 

staffing agency); see also Black’s Law Dictionary (10th ed. 

2014) (defining “employee” as “[s]omeone who works in the 

service of another person (the employer) under an express or 

implied contract of hire, under which the employer has the right 

to control the details of work performance” (emphasis added)); 

Mutual Fire Ins. Co. v. Ackerman, 872 A.2d 110, 113 (Md. Ct. 

Spec. App. 2005) (looking to Black’s to determine the ordinary 

meaning of an undefined term).

There can be no question that Nurse Cryer qualifies as an 

employee of the Hospital under the right-to-control test. In

Whitehead v. Safway Steel Products, the Maryland Court of 

Appeals applied the right-to-control test to conclude that 

Safway was the employer of Whitehead, a worker who had been 

assigned to Safway by a temporary staffing agency: “Safway 

instructed Whitehead on the task to be performed, supervised his 
14

work, and was free to reassign him to any other duties that 

warranted attention. If Whitehead’s work was unsatisfactory, 

Safway was free to dismiss him and request an additional 

worker.” 497 A.2d at 809. The Hospital’s control over Cryer,

as established by the undisputed evidence in the record, mirrors 

that of the staffing agency customer in Whitehead, and Nurse 

Cryer therefore is an employee of the Hospital as a matter of 

law. See id. (“[T]emporar[y workers] . . . who work in 

employment circumstances similar to the one here present, are as 

a matter of law, employees of the customer”); see also

Interstate Fire & Cas. Co., 758 F.3d at 386-87 (concluding that 

nurse paid by staffing agency and assigned to work at hospital 

was employee of hospital under insurance policy covering 

hospital “employees”).

Accordingly, we conclude that the provision in the 

professional-liability section of the Policy extending 

“protected person” status to “employees” of the Hospital is 

unambiguous. The plain and ordinary meaning of “employee” 

includes those who qualify as employees under the right-tocontrol test, and the evidence in the record establishes that 

Nurse Cryer qualifies as an employee of the Hospital under that 

test. 
15

III.

Dimensions makes two arguments in support of its contrary 

reading of the Policy. It first argues that the term “employee” 

must be interpreted in light of the Staffing Agreement between 

the Hospital and the Agency. It also argues that Nurse Cryer 

qualifies as an “affiliated healthcare provider” under the terms 

of the Policy but fails to meet the requirements for coverage to 

extend to her in that capacity. We find neither of these 

arguments persuasive.

A.

Dimensions first contends that we should define “employee” 

as used in the Dimensions policy by reference to the Staffing 

Agreement between the Agency and the Hospital. Because the 

Staffing Agreement provides that Agency practitioners will be 

treated as the employees of the Agency, not the Hospital, 

Dimensions contends that Nurse Cryer does not qualify as an 

“employee” under the Policy.

Dimensions’ argument in this regard centers on Nurse 

Cryer’s status as a “borrowed” employee. Borrowed employees 

have two employers -- a “general” employer, who essentially 

loans the employee to a borrowing or “special” employer. See

Lovelace v. Anderson, 785 A.2d 726, 741 (Md. 2001) (noting “the 

settled principle of Maryland law that a worker may 

simultaneously be the employee of two employers” (internal 
16

quotation marks and alteration omitted)); Temp. Staffing, 765 

A.2d at 603 n.1 (“A general employer is an employer who 

transfers an employee to another employer for a limited period. 

A special employer is an employer who has borrowed an employee 

for a limited period and has temporary responsibility and 

control over the employee’s work.”). In this case, the Agency 

is Nurse Cryer’s general employer, and the Hospital is her 

special employer. See id. (“A temporary employment company is a 

general employer and the company to which an employee is 

assigned is a special employer.”).

As between the general and special employee, liability for 

the employee’s act (or for the employee’s worker’s compensation 

claim) turns on whose work is being done and who can control 

that work:

[W]here the work to be done is the borrower’s work, 

and a part of his business, and he has the power and 

authority to direct when and where and how it shall be 

done, and where the work is not within the scope of 

the general employment of the servant, it may fairly 

be said that so far as that work is concerned he is 

under the control of the borrower and that the latter 

will be responsible for his negligent acts.

Dippel v. Juliano, 137 A. 514, 517 (Md. 1927); see Standard Oil 

Co. v. Anderson, 212 U.S. 215, 220 (1909) (“One may be in the 

general service of another, and, nevertheless, with respect to 

particular work, may be transferred . . . to the service of a 

third person, so that he becomes the servant of that person, 
17

with all the legal consequences of the new relation.”). 

However, if the general employer and special employer have 

entered into a contract assigning liability to one of the 

parties, courts will give effect to that contract. See Temp. 

Staffing, 765 A.2d at 611 (directing workers’ compensation 

commission to consider contract between co-employers when 

assigning liability for benefits for injured employee); Hercules 

Powder Co. v. Harry T. Campbell Sons Co., 144 A. 510, 518 (Md. 

1929) (reversing jury verdict in favor of special employer where 

contract between general and special employer assigned liability 

for employee’s negligence to special employer); see also Sea 

Land Indus., Inc. v. Gen. Ship Repair Corp., 530 F. Supp. 550, 

563 (D. Md. 1982) (“[U]nder Maryland law, whatever the status of 

an employee under the ‘borrowed servant’ doctrine, the parties 

may allocate between themselves the risk of any loss resulting 

from the employee’s negligent acts.”). 

It is on the latter point that Dimensions pegs its 

argument. In Dimensions’ view, a contract between a special 

employer and general employer assigning liability for the 

borrowed employee is determinative of the “who is an employee?” 

question, wherever that question might arise. See Brief of 

Appellee at 4 (stating that the Staffing Agreement “should apply 

to any borrowed servant analysis whether it is made in the 

context of a lawsuit between the borrowing and lending employer 
18

or any other entities”). Pointing to cases such as NVR, Inc. v. 

Just Temps, Inc., 31 F. App’x 805 (4th Cir. 2002) (per curiam) 

(unpublished), Dimensions argues that the Staffing Agreement 

“controls the employee’s status,” Brief of Appellee at 19, which 

makes the right-to-control or borrowed-servant analysis 

“irrelevant,” id. at 17. And because the Staffing Agreement 

provides that Nurse Cryer is the Agency’s employee and that the 

Agency will be liable for her negligent acts, Dimensions 

contends that Nurse Cryer is not a Hospital employee under the 

Policy. We disagree.

The cases on which Dimensions relies establish simply that 

the existence of a liability-assigning contract makes it 

unnecessary to apply the right-to-control test in a dispute 

between the parties to that contract. See NVR, 31 F. App’x at 

807 (“Under Maryland law, in cases like this one between a 

general employer and a borrowing employer, . . . the parties may 

allocate between themselves the risk of any loss resulting from 

the employee’s negligent acts.” (internal quotation marks 

omitted; emphasis added)); Sea Land, 530 F. Supp. at 563 

(“[W]hatever the status of an employee under the ‘borrowed 

servant’ doctrine, the parties may allocate between themselves

the risk of any loss resulting from the employee’s negligent 

acts.” (emphasis added)). Nothing in these cases supports 

Dimensions’ assertion that the terms of the Staffing Agreement, 
19

a contract to which neither Dimensions, Interstate, nor Nurse 

Cryer were parties, determine the scope of the entirely separate 

insurance contract issued by Dimensions to the Hospital or 

diminish the protection provided to Cryer by the Policy. See

Mayor of Baltimore ex rel. Lehigh Structural Steel Co. v. 

Maryland Cas. Co., 190 A. 250, 253 (Md. 1937) (“It seems 

axiomatic that persons are only bound by the contracts they 

make, and are not bound by contracts they do not make. . . .”).

Accepting Dimensions’ argument that the Staffing Agreement 

controls the meaning of the Policy would be inconsistent with 

Maryland principles of contract interpretation. As we have 

concluded, the Policy is not ambiguous, despite its failure to 

define “employee.” Maryland law therefore requires us to look 

only to the Policy itself and to interpret it as written. See

100 Inv. Ltd. P’ship v. Columbia Town Ctr. Title Co., 60 A.3d 1, 

22 (Md. 2013) (“[O]ur search to determine the meaning of the 

contract is focused on the four corners of the agreement. When 

the clear language of a contract is unambiguous, the court will 

give effect to its plain, ordinary, and usual meaning, taking 

into account the context in which it is used. . . .” (internal 

quotation marks, citation, and internal alteration omitted));

Ray v. State, ___ A.3d ___, 2016 WL 5462963, at *15 (Md. Ct. 

Spec. App. Sept. 29, 2016) (“[E]xtrinsic sources of evidence 

that may be helpful in resolving an ambiguity, when it actually 
20

exists, may not be used to create an ambiguity in the first 

instance.”). Dimensions, however, contends we should look 

beyond the Policy and define its unambiguous terms not in 

accordance with their ordinary meaning, but in accordance with 

the terms of a wholly separate and independent contract. 

Because that argument is inconsistent with Maryland law, we are 

obliged to reject it.

The common, ordinary meaning of “employee” incorporates the 

right-to-control test -- that is, one who works in the service 

of another who has the right to control the details of the work

is the employee of the entity with the right to control. By 

arguing that the Staffing Agreement controls the “employee” 

question, Dimensions is, in effect, arguing that the common, 

ordinary meaning of “employee” includes a footnote that carves 

out those workers who would otherwise qualify as employees but 

are the subject of a contract placing liability for them on 

someone other than the entity with the right to control. We 

disagree. As Maryland courts have made clear, “the words of 

insurance contracts [must be given] their customary, ordinary, 

and accepted meaning, as determined by the fictional ‘reasonably 

prudent lay person.’” Connors, 113 A.3d at 603 (emphasis 

added). Lay persons do not generally footnote their words, and 

we decline to append Dimension’s proposed footnote to the common 

meaning of “employee.” Whether or not liability for the 
21

employee has been assigned by contract between co-employers, the 

common, ordinary meaning of “employee” is one who works in the 

service of and subject to the direction and control of another.*

In addition to being inconsistent with Maryland principles 

of contract interpretation, Dimensions’ claim that the Staffing 

Agreement controls is also largely foreclosed by this court’s 

decision in Travelers Property and Casualty Co. v. Liberty 

Mutual Insurance Co., 444 F.3d 217 (4th Cir. 2006). In 

Travelers, State Street Bank hired Ryland Mortgage Company to 

service and manage mortgage loans held by State Street and to 

manage any properties State Street took over through 

foreclosure. By contract, Ryland was obligated to indemnify 

State Street for any claims arising from Ryland’s management of 

the loans and property. A visitor to a foreclosed property was 

 * Although we may not look to extrinsic evidence to 

determine the meaning of unambiguous language contained in an 

insurance policy, we must look to the actual facts of the case 

to determine whether they are sufficient to trigger the coverage 

provided by the policy. That is, while we may not consider the 

Staffing Agreement when determining the meaning of the term 

“employee” under the Policy, we must look to the facts 

established through discovery to determine whether Nurse Cryer 

qualifies as an “employee” as we have defined it. As to that 

question, the level of control given to the Hospital through the 

Staffing Agreement is a relevant and proper consideration. See, 

e.g., Interstate Fire & Cas. Co. v. Washington Hosp. Ctr. Corp., 

758 F.3d 378, 384 (D.C. Cir. 2014) (concluding that “employee” 

was unambiguous term encompassing the right-to-control test and 

then considering contractual level of control to determine 

whether nurse qualified as an employee under the right-tocontrol test).
22

injured and sued State Street and Ryland. Ryland was insured by 

Travelers, and State Street was insured by Liberty Mutual. 

Travelers provided a defense to Ryland and subsequently sought 

contribution from Liberty Mutual, arguing that Ryland was an 

additional insured under the policy issued to State Street.

On appeal, we agreed with Travelers that Ryland was covered 

by the Liberty Mutual policy. The Liberty Mutual policy 

included State Street’s “real estate managers” as additional 

insureds, and Ryland’s contractual duties qualified it as a real 

estate manager. See id. at 221-22. Liberty Mutual, therefore, 

had an “independent contractual obligation to provide coverage 

to Ryland.” Id. at 219. And because Liberty Mutual had an 

independent duty to provide coverage to Ryland, the 

indemnification agreement between Ryland and State Street was 

irrelevant: 

The issue here is coverage for only Ryland’s 

liability. Travelers concededly insured Ryland, and 

because of Liberty Mutual’s insuring language, it must 

also insure Ryland through its additional insureds 

clause. This is not a case where we are determining 

State Street’s liability vis-à-vis Ryland’s. The fact 

that Ryland agreed to indemnify State Street under the 

Pooling Agreement does not absolve Liberty Mutual of 

its independent contractual obligation to insure 

Ryland as State Street’s “real estate manager.” If 

the issue in this case turned on the underlying

liability as between Ryland and State Street, we would 

likely conclude, as Liberty Mutual urges, that Ryland 

bore full responsibility because of its 

indemnification agreement. But even then, having 

determined that Ryland had legal responsibility for 

[the injuries to the property-visiting plaintiff], we 
23

would still have to determine who insured that 

liability. In this case Travelers concededly provided 

coverage, as it issued a policy directly to Ryland as 

the named insured. But Liberty Mutual, which issued a 

policy to State Street as its named insured, also 

provided coverage to additional insureds, not because 

of any indemnity clause running in favor of its 

insured State Street but because of its independent 

undertaking to Ryland.

Thus, because we are deciding coverage for only 

Ryland’s liability to [the property-visiting

plaintiff], the indemnification agreement is 

irrelevant.

Id. at 224-25 (emphasis added).

As in Travelers, this case involves only the question of 

coverage for Nurse Cryer under the policy issued by Dimensions. 

The Agency and the Hospital are not parties to this action, and 

there is no issue before this court regarding indemnification or 

liability as between the Hospital and the Agency. It may well 

be that the primary purpose of the Dimensions policy was to 

provide insurance coverage for the Hospital and its direct-hire 

employees. Nonetheless, the policy that Dimensions chose to 

issue used language whose ordinary meaning includes Agencyprovided employees as additional insureds. See United Servs. 

Auto. Ass’n v. Riley, 899 A.2d 819, 833 (Md. 2006) (“Courts in 

Maryland follow the law of objective interpretation of 

contracts, giving effect to the clear terms of the contract 

regardless of what the parties to the contract may have believed 

those terms to mean.” (internal quotation marks omitted)). 
24

Thus, whether or not the Hospital intended to provide insurance 

for Agency-provided employees, Dimensions, by virtue of the 

policy that it issued, has an “independent obligation to insure 

[Cryer] as an additional insured.” Travelers, 444 F.3d at 224. 

And as we made clear in Travelers, the contract between the 

Hospital and the Agency simply has no impact on Dimension’s 

independent obligation to provide the coverage undertaken in the 

policy. See id. at 224-25.

Therefore, for the reasons set out above, we conclude that 

Nurse Cryer qualifies as an “employee” of the Hospital under the 

unambiguous language of the Policy, notwithstanding the contrary 

language of the Staffing Agreement.

B.

Dimensions also contends that the Policy’s “affiliated 

health care provider” (“Affiliated Provider”) clause operates to 

exclude Nurse Cryer from coverage under the Policy. 

The professional-liability section of the Policy extends 

protected-person status (and therefore coverage) to “affiliated 

health care providers” under certain circumstances. Under the 

Policy, 

An Affiliated Health Care Provider means any natural 

person or organization [1] in the business of 

rendering health care services directly to the general 

public, and [2] who or which has an agreement to 

provide such services in conjunction with those 

provided by [the Hospital]. Affiliated Health Care 

Providers are included as Protected Persons only when 
25

[3] a written partnership or physician affiliation 

agreement specifically designates the Affiliated 

Health Care Provider[] as a Named Protected Person 

under this Agreement. Agencies providing clinical and 

other services on a per diem or contracted basis are 

not protected persons under this agreement.

J.A. 133.

Dimensions contends that Nurse Cryer meets the definitional 

requirements of the Affiliated Provider clause under the Policy. 

According to Dimensions, Nurse Cryer provides medical care 

directly to the public, thus satisfying the first Affiliated 

Provider requirement. And Nurse Cryer was providing those 

medical services at the Hospital through a contract with the 

Agency, thus satisfying the second Affiliated Provider 

requirement. Dimensions therefore contends that Nurse Cryer 

qualifies as an Affiliated Provider. An Affiliated Provider is 

a Protected Party, however, only if the third requirement is 

satisfied -- there must be a contract expressly designating the 

Provider as protected. Because there is no such contract in 

this case, Dimensions contends that Nurse Cryer is an Affiliated 

Provider who is not a Protected Person under the Policy.

In our view, the Affiliated Provider clause cannot carry 

the meaning assigned to it by Dimensions. If Dimensions’ 

reading of the clause were correct, then all of the Hospital’s 

medical-care-providing employees, whether direct-hire or 

contract, would qualify as Affiliated Providers. If Nurse Cryer 
26

is “in the business of rendering health care services directly 

to the general public,” J.A. 133, then so are direct-hire nurses 

and direct-hire or contract doctors. And if Nurse Cryer’s 

contract with the Agency, or any implied contractual agreement 

she might have had with the Hospital itself, satisfies the 

requirement for an “agreement to provide [health care] services 

in conjunction with those provided by [the Hospital],” J.A. 133, 

then the contracts between the Hospital and its direct-hire 

care-providing employees would satisfy the requirement as well. 

Thus, under Dimensions’ argument, all of the Hospital’s 

care-providing employees, whether contract or direct-hire, would 

qualify as Affiliated Providers. All of those employees would 

be precluded from Protected Person status (and therefore not 

insured under the Policy) for the same reason that Dimensions 

contends Nurse Cryer is not protected -- the absence of a 

“written . . . agreement specifically designat[ing] the 

Affiliated Health Care Provider[] as a Named Protected Person 

under this Agreement.” J.A. 133.

The “Worker Protection” clause contained in the hospitalliability section of the Policy explicitly extends Protected 

Person status to the Hospital’s “present and former employees, 

students and authorized volunteer workers,” J.A. 134, without 

conditioning that status on the existence of a separate contract 

designating them as protected. Because Dimensions’ reading of 
27

the Affiliated Provider clause would render illusory the 

coverage provided by the “Worker Protection” clause, we must 

reject it. See Cochran v. Norkunas, 919 A.2d 700, 710 (Md. 

2007) (“[A] contract must be construed in its entirety and, if 

reasonably possible, effect must be given to each clause so that 

a court will not find an interpretation which casts out or 

disregards a meaningful part of the language of the writing 

unless no other course can be sensibly and reasonably followed.” 

(emphasis added and internal quotation marks omitted)); Kelley 

Constr. Co. v. Washington Suburban Sanitary Comm’n, 230 A.2d 

672, 676 (Md. 1967) (“[T]he courts will prefer a construction 

which will make the contract effective rather than one which 

will make it illusory or unenforceable.” (internal quotation 

marks omitted)). Instead, we must read the Affiliate Provider 

clause in a way that preserves the coverage provided in the 

Worker Protection clause. See Rigby, 123 A.3d at 597 

(explaining that courts should “give effect to each clause of an 

insurance policy, and avoid treating either term as surplusage”

(internal quotation marks and citation omitted)).

As quoted above, the Policy defines Affiliated Provider as 

a “natural person or organization in the business of rendering 

health care services directly to the general public, and who or 

which has an agreement to provide such services in conjunction 

with those provided by [the Hospital].” J.A. 133. The phrase 
28

“in conjunction with” means “in combination with” or “together 

with,” see www.Merriam-Webster.com (saved as ECF opinion 

attachment), which demonstrates that the clause contemplates the 

provision of health care services in addition to those services 

already being provided by the Hospital. Thus, the clause is 

directed to entities that provide medical services to the public 

independently of the Hospital and agree to provide those 

services together with the services provided by the Hospital. 

(For example, a medical specialist with an independent practice 

who agrees to affiliate with the Hospital would qualify as an 

Affiliated Provider.) 

So understood, it is clear that Hospital employees (whether 

contract or direct-hire) do not qualify as Affiliated Providers. 

The Hospital provides its medical services through its workers, 

be they contract or direct-hire. The workers do not provide 

medical services directly to the public, but only to the 

Hospital’s patients, and only on the terms dictated by the 

Hospital. Hospital workers thus are not providing health care 

services in addition to or alongside the health care services 

provided by the Hospital; they are the ones providing the 

Hospital’s health care services in the first instance. Because 

the Hospital cannot act in concert with itself, a Hospital 

worker cannot be said to be providing health care services “in 
29

conjunction with” the Hospital, as the Policy requires to 

qualify as an Affiliated Provider.

That the Affiliated Provider clause is directed to 

independent entities rather than Hospital workers is confirmed 

by the clause’s requirement of “a written partnership or 

physician affiliation agreement” designating the Affiliated 

Provider as a named insured under the Policy. J.A. 133 

(emphasis added). This language describes the kind of contract 

that the Hospital would enter into with an independently 

operating medical business, not with its employees. 

Accordingly, we conclude that Hospital workers, whether 

contract or direct hire, do not meet the definitional 

requirements of an Affiliated Provider under the terms of the 

Policy. We therefore reject Dimensions’ claim that the 

Affiliated Provider clause operates to preclude coverage under 

the Policy for Nurse Cryer.

IV.

To summarize, we conclude that the term “employee” as used 

in the Dimensions Policy is not ambiguous and that it includes 

those workers who qualify as employees under the right-tocontrol test. Dimensions therefore has an independent 

obligation to provide coverage to those workers who meet the 

definition of “employee,” without regard to how those workers 

may be classified under the Staffing Agreement executed by the 
30

Hospital and the Agency. Because the evidence contained in the 

record establishes that Nurse Cryer is the Hospital’s employee 

under the right-to-control and the borrowed-servant standards, 

she is a “protected person” who qualifies for coverage under the 

professional-liability portion of the Dimensions Policy.

We therefore vacate the district court’s opinion granting 

summary judgment in favor of Dimensions, and we remand for 

further proceedings consistent with this opinion.

VACATED AND REMANDED