PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PACIFIC INSURANCE COMPANY,

Plaintiff-Appellee,

v.

AMERICAN NATIONAL FIRE INSURANCE

No. 96-2468

COMPANY,

Defendant-Appellant,

RAIL LINK, INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Robert R. Merhige, Jr., Senior District Judge.

(CA-96-22)

Argued: May 7, 1998

Decided: July 7, 1998

Before ERVIN and HAMILTON, Circuit Judges, and BLAKE,

United States District Judge for the District of Maryland,

sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Hamilton wrote the opinion, in

which Judge Ervin and Judge Blake joined.

_________________________________________________________________

COUNSEL

ARGUED: William Henry Shewmake, SHEWMAKE, BARONIAN

& PARKINSON, Richmond, Virginia, for Appellant. Scott L. Carey,
BATES, MECKLER, BULGER & TILSON, Chicago, Illinois, for

Appellee Pacific Insurance; Gary Joseph Spahn, MAYS & VALENTINE, L.L.P., Richmond, Virginia, for Appellee Rail Link. ON

BRIEF: Samuel Baronian, Jr., SHEWMAKE, BARONIAN & PARKINSON, Richmond, Virginia, for Appellant. Monica T. Sullivan,

BATES, MECKLER, BULGER & TILSON, Chicago, Illinois; John

H. O'Brion, Jr., COWAN & OWEN, P.C., Richmond, Virginia, for

Appellee Pacific Insurance. Robert A. Angle, MAYS & VALENTINE, L.L.P., Richmond, Virginia, for Appellee Rail Link.

_________________________________________________________________

OPINION

HAMILTON, Circuit Judge:

American National Fire Insurance Company (American National)

appeals the district court's entry of judgment in favor of Pacific Insurance Company (Pacific) in this dispute involving which company's

insurance policy, issued to the insured, Rail Link, Inc. (Rail Link),

covers the settled claim of Charles Womack, a former employee of

Rail Link. Because we hold that the district court did not abuse its discretion in reversing its previous entry of judgment in American

National's favor and properly granted judgment on the pleadings to

Pacific, we affirm.

I.

Rail Link is a railroad company that provides switching operations

at various manufacturing plants. Rail Link also provides other railroad

services to some of the companies it serves, including leasing and

maintaining railroad engines, maintaining and repairing railroad

tracks, and cleaning boxcars. In addition to providing contractual

switching services for various companies and manufacturers, Rail

Link is also the parent of two wholly-owned subsidiary corporations

that operate "shortline" railroads. These subsidiaries operate short distance railroad connections in North Carolina and Virginia. Rail Link's

president, James Benz, and its general manager, William Jasper, are

the sole officers and directors of Rail Link's shortline subsidiaries.

 2
At all times relevant to this litigation, Rail Link maintained three

liability insurance policies. First, Rail Link purchased a $500,000 liability policy from the Hartford Insurance Company (the Hartford Policy). Second, Rail Link purchased a $5 million comprehensive

railroad liability policy (the Pacific Policy) from Pacific. Third, Rail

Link purchased a $4 million excess liability policy (the American

National Policy) from American National.

Several provisions of the Pacific Policy and the American National

Policy are pertinent to this appeal. First, the Pacific Policy contains

an exclusion, known as Exclusion F, which states:

This policy does not apply to:

. . .

F. Any liability imposed on the Insured under any of the

following:

1. the Employees' Retirement Income Security Act

(ERISA) of 1974 as now or hereafter amended;

2. any uninsured motorists, underinsured motorists,

automobile no-fault or first party personal injury law;

3. any workers compensation, employers liability (but

this does not apply to the Federal Employers' Liability

Act; see Employers Liability definition), occupational

disease, unemployment compensation, retirement or

disability benefits law or statute; or

4. any law similar to 1., 2., or 3. above.

(J.A. 49). The Pacific Policy also defines "Employer's Liability" as

"liability imposed on the Insured for Bodily Injury sustained by

employees of the Insured in the course of their employment under the

Federal Employers Liability Act, U.S. Code (1970) Title 45, Chapter

2, Sections 51-60 and as amended." (J.A. 63).

 3
With respect to the American National Policy, it specifically incorporates certain scheduled underlying policies, including the Hartford

Policy. The Hartford Policy and, therefore, the American National

Policy exclude claims brought pursuant to the Federal Employer's

Liability Act (FELA), 45 U.S.C. §§ 51-60, providing that "[t]his

insurance does not cover: . . . bodily injury to any person in work subject to the Federal Employer's Liability Act . . ., any other federal

laws obligating an employer to pay damages to an employee due to

bodily injury arising out of or in the course of employment, or any

amendments to those laws." (J.A. 114). The American National Policy also provides that American National is not required "to assume

charge of the settlement or defense of any claim, suit or proceeding

against [the insured]." (J.A. 76).

On January 14, 1995, Womack slipped from a railcar while performing switching operations and suffered catastrophic injuries,

including multiple amputations. The injury occurred at a Lubrizol,

Inc. plant in Texas, and Womack subsequently filed suit against Rail

Link and others in a diversity action in the United States District

Court for the Southern District of Texas under the Texas Railroad

Liability Act (TRLA), Tex. Rev. Civ. Stat., Art. 6432-6443 (the

Underlying Action). Womack sought $52 million in damages under

the TRLA; Womack did not assert a claim under FELA. Rail Link

subsequently reported the claim to its insurers, including Pacific and

American National. Because the Hartford Policy was the primary policy, the defense of the Underlying Action was not tendered to either

Pacific or American National.

Rail Link and its insurers then attempted to negotiate a settlement

of Womack's claim. During the course of the settlement negotiations,

however, a dispute arose over which insurer's policy offered coverage

for the Underlying Action. As a result of this dispute, on January 19,

1996, Pacific filed this diversity action in the United States District

Court for the Eastern District of Virginia against Rail Link and American National, seeking a declaratory judgment as to which company's

policy covered the Womack accident. In its complaint, Pacific alleged

that it was not liable for covering the Underlying Action because it

did not provide any coverage for any accident arising under the

TRLA. American National filed an answer, maintaining that its policy

also did not provide coverage for the Womack incident.

 4
In February 1996, the district court held a settlement conference in

which all of the parties to the Underlying Action participated, including Womack's attorneys. Ultimately, the parties agreed to settle the

Underlying Action for $4.3 million. The entire employer's liability

limit of $500,000 under the Hartford policy was paid in connection

with the settlement, while American National and Pacific each agreed

to pay $1.86 million with a reservation of rights against the other to

litigate which insurer's policy covered the Underlying Action. The

terms of the settlement were recorded before the district court by a

court reporter, and in memorializing the reservation of rights agreement between Pacific and American National, counsel for American

National stated:

 The payments by Pacific and American National Fire

Insurance Company are made with the understanding and

agreement between them that Pacific and American

National agree that they are reserving their rights against

each other and agree to litigate post the settlement in the

Womack case as between themselves, that they will litigate

the various issues of coverage under their respective policies.

 Secondly, they agree that with respect to the applicability

of exclusion under Pacific's policy, that issue would be preserved, and if determined that that exclusion applies to Rail

Link, Inc. for coverage for the Womack action in settlement,

American National will be obligated to reimburse Pacific.

 Thirdly, the above-stated stipulation with regard to the

exclusion would not apply if somehow American National

was determined not to owe coverage to Rail Link for the

Womack action in settlement.

 In the event that Pacific and American National were

determined to both provide coverage to Rail Link for the

Womack action and settlement, the issue of priority as

between their coverage is agreed to be decided and agreed

to effect a reimbursement to carry out the final judicial

determination of that issue.

 5
(J.A. 181-82).

After the settlement of the Underlying Action, Pacific amended its

complaint to incorporate the terms of the settlement agreement. In

response to Pacific's amended complaint, American National filed an

amended answer, a counterclaim against Pacific, and a cross-claim

against Rail Link, seeking a declaration that American National had

no obligation to indemnify Rail Link for liability in the Underlying

Action. Because Pacific and American National agreed not to seek

reimbursement from Rail Link, Rail Link remained only a nominal

party to the declaratory judgment action and had no active role in the

litigation.

On July 23, 1996, Pacific moved for judgment on the pleadings

pursuant to Federal Rule of Civil Procedure 12(c). In its motion and

memorandum in support of its motion, Pacific argued that the Pacific

Policy provided no coverage for the Underlying Action, while the

American National Policy did provide coverage, because the Underlying Action was brought under the TRLA, rather than FELA, and the

Pacific Policy excluded all employers' liability claims except those

asserted under FELA. American National opposed Pacific's motion

and argued that, because of an ambiguity in the Pacific Policy, Pacific

was liable for Womack's TRLA claims asserted in the Underlying

Action. American National did not argue that the Underlying Action

could have been or should have been brought under FELA.

On August 21, 1996, the district court granted Pacific's motion for

judgment on the pleadings as to Count I of the complaint, agreeing

with Pacific that its policy excluded coverage because the Underlying

Action was brought under the TRLA. On September 13, 1996, the

district court held a hearing to clarify whether its August 21 order

granting Pacific's motion for judgment on the pleadings disposed of

the case. During that hearing, for the first time, American National

argued that FELA preempted Womack's claims under the TRLA,

making the Underlying Action a FELA case, not a TRLA case, and

rendering the Pacific Policy applicable and not the American National

Policy.1

_________________________________________________________________

1 Although American National briefly mentioned the applicability of

FELA at a hearing held on August 15, 1996 concerning Pacific's motion

 6
On September 20, 1996, the district court entered an order holding

that its August 21 order granting Pacific judgment on the pleadings

as to Count I of the complaint mooted all other counts of the complaint. The district court therefore dismissed the action.

In response to the district court's order, American National filed a

notice of appeal. In its notice of appeal, American National identified

the district court's failure to rule on the FELA question as one of the

appealable issues.

On October 3, 1996, Pacific filed a motion to amend the judgment

to request monetary damages consistent with the declaratory relief,

pursuant to Federal Rule of Civil Procedure 59(e). Specifically,

Pacific requested judgment in its favor in the amount of

$1,861,331.38, plus pre-judgment interest and allowable costs, representing the amount that American National had agreed to reimburse

Pacific once the coverage issues were resolved in Pacific's favor.

In response to Pacific's motion to amend the judgment, American

National argued that an award of damages to Pacific was inappropriate because Pacific had not established that FELA did not preempt

Womack's TRLA claims, such that Pacific would be liable for coverage. American National asserted that Pacific's avenue for relief was

appeal and requested that Pacific's motion be denied. Alternatively,

American National requested that a trial on the merits on the applicability of FELA to the Underlying Action be held by the district court.

In support of its opposition to Pacific's motion to amend the judgment, American National filed the affidavit of its director of commercial liability claims, James Danehy, who handled the Womack claim

on behalf of American National. In his affidavit, Danehy stated that

because American National did not approve of the way Rail Link was

handling the defense of the Womack claim, he agreed, on behalf of

American National, to enter into the settlement agreement on February 15, 1996. According to Danehy, under the terms of the agreement

_________________________________________________________________

for judgment on the pleadings, American National did not argue that

FELA preempted Womack's claims under the TRLA at that hearing or

at any time prior to the district court's entry of judgment on the pleadings

in favor of Pacific.

 7
and in consideration for American National's payment of $1.86 million, the parties agreed that the insurance carriers could litigate all

legal and factual issues concerning the insurance coverage, including

whether FELA applied to the Underlying Action and was therefore a

defense to coverage under the American National Policy. Danehy

stated further that this total reservation was important to American

National because it permitted American National to raise and pursue

defenses and issues that Rail Link and Hartford had no interest and/or

incentive in pursuing.

On December 16, 1996, the district court entered a memorandum

opinion and order denying Pacific's motion to amend the judgment

and ordering the parties to brief and argue the applicability of FELA

to the Underlying Action. In its memorandum opinion, the district

court stated that it had not fully settled the issue of liability when it

granted Pacific's motion for judgment on the pleadings and that if

FELA applied to preempt Womack's claim under the TRLA, the

American National Policy would not cover the liability, while the

Pacific Policy would. The district court stated further that after examining the language of the settlement conference and considering the

representations that the parties made during the various hearings

before the district court, it found that American National and Pacific

left all issues of coverage open, including whether FELA preempted

Womack's claim. The district court concluded that it would deny

Pacific's motion to amend the judgment and asked the parties to

address the FELA coverage issue in written briefs.

Pacific and American National subsequently filed briefs on the

issue, while Rail Link responded only to discovery requests propounded by American National, in which Rail Link denied that it was

subject to FELA or that it had maintained its subsidiaries in an effort

to circumvent FELA.2 Without hearing oral argument on the matter,

_________________________________________________________________

2 In order to establish that FELA preempted Womack's claims under

the TRLA, American National had to establish that Rail Link could be

held liable under FELA as a common carrier by railroad through the

actions of its subsidiaries. See 45 U.S.C.§ 51. To this end, American

National argued that the shortline subsidiaries were the "alter-ego" of

Rail Link, such that their acts could be imputed to Rail Link, and that

Rail Link established the shortline subsidiaries in an effort to circumvent

FELA.

 8
on July 30, 1997, the district court entered a memorandum opinion

and order in which it held that FELA applied to preempt Womack's

claim under the TRLA because Rail Link operated as a common carrier by railroad, engaged in interstate commerce, and Womack's

duties touched upon interstate commerce. With respect to the applicability of FELA to Rail Link's operations, the district court found that

the activities of Rail Link's shortline subsidiaries could be imputed to

Rail Link because it owned and controlled the subsidiaries completely

and, therefore, Rail Link could be considered to be a common carrier.

The district court found further that Rail Link created the subsidiaries

in an effort to circumvent FELA, conduct prohibited by FELA.

Finally, the district court found that Womack's duties affected interstate commerce in that the Lubrizol plant, where Womack was working, received products from other states and shipped them out of the

state, such that Womack's duties touched upon interstate commerce.

The district court concluded that FELA preempted Womack's TRLA

claims in the Underlying Action and that because the Pacific Policy

included coverage for claims asserted under the FELA, Pacific was

liable in the amount of $1.86 million to American National.

On August 11, 1997, American National moved the district court

for pre-judgment interest. On August 13, 1997, Pacific filed a motion

pursuant to Federal Rule of Civil Procedure 59(e) to reconsider the

district court's July 30 order granting judgment in American National's favor. In its Rule 59(e) motion, Pacific argued that the district

court should never have considered the FELA issue because the district court was not permitted to look beyond the pleadings in the

Underlying Action to decide which policy covered the Womack incident and, since Womack asserted claims only under the TRLA, Rail

Link was only subject to liability under the TRLA when the claim

was settled. Although only a nominal party, on August 11, 1997, Rail

Link also filed a motion to alter or amend the judgment under Rule

59(e). In its motion, Rail Link argued that the district court's decision

was unsupported by the facts and the evidence and requested that the

district court exercise its discretion to vacate its order to enable the

parties to fully develop the factual record on the applicability of

FELA to Rail Link's operations.

On November 10, 1997, the district court entered another memorandum and order granting Pacific's motion to reverse its earlier order

 9
of July 30, 1997 and entering judgment in favor of Pacific in the

amount of $1.86 million plus pre-judgment and post-judgment interest. In its opinion, the district court noted, first, that one of the

grounds on which a Rule 59(e) motion could be granted was to correct a clear error of law or to prevent a manifest injustice. The district

court then held that it had made such a clear error of law, one which

would result in manifest injustice, when it considered and decided the

applicability of FELA to Womack's claim notwithstanding the judgment already entered in Pacific's favor in September 1996. The district court noted that the only motion before the court at the time it

decided to rule on the FELA issue was Pacific's motion to amend the

judgment to include a monetary award. The district court then held

that it should not have considered and decided the applicability of

FELA to the Underlying Action because it did not have before it any

pleading or motion upon which relief for American National could

have been granted. The district court also held that it had erred in rendering judgment in favor of American National because in considering which company's policy covered the Underlying Action, the

district court should have confined itself to deciding whether the

claim as settled was covered by the policy, not the merit of the Underlying Action or the applicability of FELA to it, where the settled

claim was a claim pursued under the TRLA, not FELA. Finally, the

district court held that it had erred in holding that the parties reserved

the right to litigate the applicability of FELA to the Underlying

Action in the settlement agreement.

Therefore, the district court reversed its July 1997 judgment in

favor of American National and entered judgment in favor of Pacific

in the amount of $1.86 million plus pre- and post-judgment interest.

In addition, the district court held that Rail Link's motion to alter or

amend the judgment was moot, as was American National's motion

to amend the judgment. The district court then dismissed the action.

On December 5, 1997, American National filed an amended notice

of appeal. On appeal, American National argues: (1) that the district

court erred in granting Pacific's Rule 59(e) motion to alter or amend

the July 30, 1997 judgment entered in American National's favor; and

(2) that the district court erred initially when it granted Pacific's

motion for judgment on the pleadings, holding that the Pacific Policy

 10
excluded coverage for liability imposed under the TRLA. We consider each asserted error in turn.

II.

American National first argues that the district court erred in

reversing its July 30, 1997 judgment in favor of American National,

holding that it was procedurally improper for the district court to have

considered American National's FELA argument and ultimately to

have entered judgment in favor of American National in the absence

of any motion by American National requesting relief. We review a

district court's decision on a motion to alter or amend the judgment

under Rule 59(e) for abuse of discretion. See EEOC v. Lockheed Martin Corp., Aero & Naval Sys., 116 F.3d 110, 112 (4th Cir. 1997);

Collison v. Internat'l Chem. Workers Union, 34 F.3d 233, 236 (4th

Cir. 1994). A district court abuses its discretion when it fails to take

relevant factors intended to guide its discretion into account or when

it acts on the basis of "legal or factual misapprehensions" respecting

those factors. See James v. Jacobson, 6 F.3d 233, 242 (4th Cir. 1993).

Although Rule 59(e) does not itself provide a standard under which

a district court may grant a motion to alter or amend a judgment, we

have previously recognized that there are three grounds for amending

an earlier judgment: (1) to accommodate an intervening change in

controlling law; (2) to account for new evidence not available at trial;

or (3) to correct a clear error of law or prevent manifest injustice. See

Lockheed Martin Corp., 116 F.3d at 112; Hutchinson v. Staton, 994

F.2d 1076, 1081 (4th Cir. 1993). Thus, the rule permits a district court

to correct its own errors, "sparing the parties and the appellate courts

the burden of unnecessary appellate proceedings." Russell v. Delco

Remy Div. of Gen. Motors Corp., 51 F.3d 746, 749 (7th Cir. 1995).

Rule 59(e) motions may not be used, however, to raise arguments

which could have been raised prior to the issuance of the judgment,

nor may they be used to argue a case under a novel legal theory that

the party had the ability to address in the first instance. See Russell,

51 F.3d at 749; Concordia College Corp. v. W.R. Grace & Co., 999

F.2d 326, 330 (8th Cir. 1993); FDIC v. World Univ., Inc., 978 F.2d

10, 16 (1st Cir. 1992); Simon v. United States , 891 F.2d 1154, 1159

(5th Cir. 1990); see also In re: Reese, 91 F.3d 37, 39 (7th Cir. 1996)

("A motion under Rule 59(e) is not authorized`to enable a party to

 11
complete presenting his case after the court has ruled against him.'")

(quoting Frietsch v. Refco, Inc., 56 F.3d 825, 828 (7th Cir. 1995)); 11

Wright et al., Federal Practice and Procedure § 2810.1, at 127-28

(2d ed. 1995) ("The Rule 59(e) motion may not be used to relitigate

old matters, or to raise arguments or present evidence that could have

been raised prior to the entry of judgment."). Similarly, if a party

relies on newly discovered evidence in its Rule 59(e) motion, the

party "must produce a `legitimate justification for not presenting' the

evidence during the earlier proceeding." Small v. Hunt, 98 F.3d 789,

798 (4th Cir. 1996) (quoting RGI, Inc. v. Unified Indus., Inc., 963

F.2d 658, 662 (4th Cir. 1992)). In general "reconsideration of a judgment after its entry is an extraordinary remedy which should be used

sparingly." Wright et al., supra, § 2810.1, at 124.

In this case, the district court stated in its November 10, 1997 order

granting Pacific's second Rule 59(e) motion that it was relying on the

third ground for granting such a motion: to correct a clear error of law

or prevent manifest injustice. According to the district court, it had

clearly erred when it entered judgment in favor of American National

on July 30, 1997 because at the time it denied Pacific's first Rule

59(e) motion to amend the judgment to include a monetary award and

permitted American National to argue the applicability of FELA to

Womack's claims, there was no motion before the court requesting

such relief. The issue, then, is whether the district court abused its discretion in holding that the third basis for relief under Rule 59(e)--that

the district court had committed a clear error of law or that the judgment would effect manifest injustice on the moving party--was satisfied. For two reasons, we do not believe that the district court abused

its discretion.

First, as noted above, at the time the district court denied Pacific's

first Rule 59(e) motion to amend the judgment in Pacific's favor to

include a monetary award on the basis that American National should

be permitted to argue the applicability of FELA to the Underlying

Action, American National had not filed any motion requesting relief

from the district court. Instead, American National had noted an

appeal from the district court's judgment in Pacific's favor and took

the position in its brief in opposition to Pacific's motion to amend that

the appropriate forum for Pacific's arguments was this court on

appeal, not the district court. While American National alternatively

 12
argued in its opposition that it was entitled to a jury trial on the applicability of FELA to the Underlying Action, it never filed a motion

requesting that relief. In granting American National relief, notwithstanding the absence of a motion, the district court, in effect, treated

American National's opposition to Pacific's motion to amend as a

Rule 59(e) motion to alter or amend the judgment filed by American

National. Even if a district court could consider an opposition to a

Rule 59(e) motion to be a formal request for relief under Rule 59(e),

American National's opposition was not filed within ten days of the

September 20, 1996 order of judgment in favor of Pacific and, therefore, was not timely filed for purposes of the rule. See Fed. R. Civ.

P. 59(e) ("Any motion to alter or amend a judgment shall be filed no

later than 10 days after entry of the judgment.").

Second, the argument raised by American National relating to the

applicability of FELA to the Underlying Action could not be appropriately considered in the context of a motion to alter or amend the

judgment because it was not timely raised. As set forth above, Rule

59(e) may not be used to raise new arguments or present novel legal

theories that could have been raised prior to judgment. Throughout

the pendency of the action in the district court prior to judgment,

American National defended Pacific's action on the basis that the

Pacific Policy, in fact, afforded coverage of Womack's TRLA claims.

Despite Pacific's repeated statements acknowledging that the Pacific

Policy extended coverage to claims asserted under FELA, but not to

any other employer liability claims, at no time prior to the district

court's grant of judgment on the pleadings to Pacific on Count I of

the complaint did American National assert that FELA applied to the

Underlying Action. Indeed, the first time American National raised

the FELA issue at all was during a hearing on a motion to clarify the

district court's August 21, 1996 order granting Pacific's motion for

judgment on the pleadings. Although this hearing occurred prior to

the district court's September 20, 1996 dismissal of the action, it

occurred after the district court entered judgment in favor of Pacific

on Count I of the complaint, in which Pacific requested a declaration

that the American National Policy covered the Underlying Action, not

the Pacific Policy. Thus, all of the issues of coverage had effectively

been resolved, as the court subsequently declared in its September

1996 order of dismissal. In addition, American National failed to file

any written document containing its FELA argument until after the

 13
district court entered final judgment in favor of Pacific on September

20, 1996.

Finally, we note that in opposing Pacific's motion to amend the

judgment to include a monetary award, American National submitted

and relied upon the affidavit of James Danehy, its director of commercial liability claims. In his affidavit, Danehy stated that the parties

agreed in the settlement agreement that the insurance carriers could

litigate all legal and factual issues concerning the insurance coverage,

including whether FELA applied to the Underlying Action. As set

forth above, however, a party may not seek to alter a previouslyentered judgment by relying on new evidence, unless the party "produce[s] a `legitimate justification for not presenting' the evidence during the earlier proceeding." Small, 98 F.3d at 798 (citation omitted).

Since American National did not produce a "legitimate justification"

for failing to submit the Danehy affidavit earlier, this evidence could

not provide the basis for the district court's decision to reconsider its

earlier judgment in favor of Pacific.

In light of the absence of a motion by American National requesting relief under Rule 59(e) and the overwhelming authority that a

party should not be permitted to raise new arguments or legal theories

of liability on a motion to alter or amend the judgment under Rule

59(e), the district court did not abuse its discretion in subsequently

holding that its decision to permit American National to raise the

FELA issue in the context of its opposition to Pacific's motion to

amend, after all issues of coverage had been considered and decided

by the district court, was clear error. Accordingly, the district court

did not abuse its discretion in granting Pacific's motion to alter or

amend the district court's July 30, 1997 judgment in favor of American National.3

_________________________________________________________________

3 Because we affirm the district court's grant of Pacific's Rule 59(e)

motion to alter or amend the July 30, 1997 judgment in American

National's favor on the basis that the district court did not abuse its discretion in holding that it had clearly erred as a matter of law in rendering

judgment in American National's favor, we need not address the district

court's other justifications for granting Pacific's motion: (1) that it erred

in entering judgment in favor of American National because the only relevant issue was whether Womack's claims against Rail Link, as settled

 14
III.

American National also argues on appeal that the district court

erred when it held, in response to Pacific's motion for judgment on

the pleadings pursuant to Rule 12(c), that the Pacific Policy excluded

coverage for all claims brought under the TRLA. We review a district

court's decision to grant a motion for judgment on the pleadings de

novo. See Gutierrez v. Peters, 111 F.3d 1364, 1368 (7th Cir. 1997);

see also Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997)

("We review de novo the district court's dismissal of the complaint.").

In interpreting the Pacific Policy, we begin with the language of the

contract itself. Thus, "[w]here an agreement is complete on its face

and is plain and unambiguous in its terms, the court is not at liberty

to search for its meaning beyond the instrument itself. This is so

because the writing is the repository of the final agreement of the

parties."4 Lerner v. Gudelsky Co., 334 S.E.2d 579, 584 (Va. 1985);

see also Schneider v. Continental Cas. Co., 989 F.2d 728, 731 (4th

Cir. 1993) (quoting Lerner and applying plain meaning rule in interpretation of insurance policy). Virginia strictly adheres to the "plain

meaning" rule, entitling the parties to rely on the express terms of the

written agreement. See Lerner, 334 S.E.2d at 584. Language in a contract is ambiguous "`when it may be understood in more than one way

or when it refers to two or more things at the same time.'" Granite

State Ins. Co. v. Bottoms, 415 S.E.2d 131, 134 (Va. 1992) (citation

omitted).

As set forth above, the Pacific Policy contained an exclusion of

coverage, known as Exclusion F, as follows:

This policy does not apply to:

_________________________________________________________________

under the TRLA, were covered under the respective policies; and (2) that

it erred in entering judgment in favor of American National because the

parties did not reserve the right to litigate the FELA preemption issue in

the Settlement Agreement.

4 All parties agree that Virginia law applies to the interpretation of the

insurance policies.

 15
. . .

F. Any liability imposed on the Insured under any of the

following:

1. the Employees' Retirement Income Security Act

(ERISA) of 1974 as now or hereafter amended;

2. any uninsured motorists, underinsured motorists,

automobile no-fault or first party personal injury law;

3. any workers compensation, employers liability (but

this does not apply to the Federal Employers' Liability

Act; see Employers Liability definition), occupational

disease, unemployment compensation, retirement or

disability benefits law or statute; or

4. any law similar to 1., 2., or 3. above.

(J.A. 49). American National argues that this exclusion is ambiguous

and, therefore, must be construed against Pacific. See Bottoms, 415

S.E.2d at 134 (ambiguous language in an insurance policy will be

construed to grant coverage, rather than withhold it). First, American

National argues that subsection (4) of Exclusion F operates to include

coverage of liability imposed under "any law similar" to FELA. In

reaching this conclusion, American National first notes, as Pacific

concedes, that subsection (3) of the exclusion specifically includes

coverage of any liability imposed on Rail Link, the insured, under

FELA. Because subsection (4) of the exclusion references "any law

similar" to the laws denoted in subsections (1), (2), or (3), American

National argues that subsection (4) has the effect of including within

coverage "any law similar" to FELA. Thus, American National would

exclude from the exclusion not only liability imposed on Rail Link

under FELA, but also, liability imposed on Rail Link under "any law

similar" to FELA.

As recognized by the district court in its August 21, 1996 opinion

granting Pacific's motion for judgment on the pleadings, this interpretation of the exclusion is not plausible. The plain meaning of subsection (3) of the exclusion is that it generally excludes from coverage

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any liability imposed on Rail Link under employers' liability laws.

Contained within the parentheses, however, is a specific exception to

this exclusion for liability imposed under FELA. Thus, subsection (3)

permits coverage of liability imposed under FELA but excludes coverage for liability imposed under any other employers' liability law.

Subsection (4), in referring to "any law similar to 1, 2, or 3 above,"

excludes from coverage liability imposed under any law that is similar

to the categories of laws listed in subsections (1), (2), or (3). In arguing that this language also refers to the language in subsection (3)

contained within the parentheses and, therefore, permits coverage of

"any law similar" to FELA, American National ignores the fact that

subsection (3) generally excludes liability imposed under employers'

liability laws with the language contained within the parentheses specifically excepting from the exclusion liability imposed under FELA.

To read subsection (4) as including coverage of liability imposed

under any law similar to FELA renders the exception and, therefore,

the parentheses denoting the exception meaningless because the effect

would be to include within the coverage liability imposed under all

employers' liability laws. The district court, then, was correct in holding that the plain language of this provision excludes from coverage

all claims of employers' liability but specifically includes coverage

for claims brought pursuant to FELA for bodily injury of an employee

that occurs during the course of employment.

American National alternatively argues that the policy's failure to

define "employers' liability," while defining"Employers' Liability,"

makes the exclusion ambiguous. We disagree. By defining "Employers' Liability" to refer specifically to claims for bodily injury under

FELA, the Pacific Policy has defined one type of employers' liability

claim and made that particular type of claim a defined term for purposes of the contract. However, its definition of one particular type

of claim as a term of art does not require Pacific to define more specifically the more general category of "employers' liability" claims.

In arguing in favor of finding an ambiguity, American National

relies on several Virginia cases, which hold that particular language

contained in insurance policies was too ambiguous to constitute the

clear exclusion required under Virginia law. These include, for example, American Reliance Ins. Co. v. Mitchell, 385 S.E.2d 583 (Va.

1989), in which the court held that the term "employee" was ambigu-

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ous, where the insurer argued that a part-time employee constituted

an "employee" for purposes of an exclusion pertaining to bodily

injury to any "farm employee." See id. at 584, 586. Similarly, in

Caldwell v. Transportation Ins. Co., 364 S.E.2d 1 (Va. 1988), the

court held that language in an insurance policy purporting to exclude

"similar operations" to "mining" and"tunneling" was too ambiguous

to permit the exclusion where both similarities and differences were

earnestly argued between mining and tunneling, on the one hand, and

the activity sought to be excluded, well-drilling, on the other. See id.

at 3. Finally, in Smith v. Allstate Ins. Co., 403 S.E.2d 696 (Va. 1991),

the court held that the term "incidental business activity" was ambiguous and precluded an interpretation of the contract in the insurer's

favor with respect to the exclusion at issue. See id. at 697.

These cases, however, differ from this case in that in each of the

cases cited, there was particular language that was difficult to construe because it had more than one meaning in the context of the factual circumstances of the case. In this case, the plain language of the

exclusion refers to a broad category of employers' liability laws and

excludes any claims brought under those laws, with the exception that

claims brought under one employers' liability law, FELA, are

included and these claims are then specifically defined as "Employers' Liability" claims. That "employers' liability" refers to more than

one type of law does not make it ambiguous as applied to this case

because American National cannot contend that the TRLA does not

constitute an employers' liability law, for purposes of the general category, and Pacific's definition of the more specific category as referring to FELA only renders the exclusion plain and unambiguous.

Therefore, we reject American National's argument that the exclusion

for all claims arising out of employers' liability laws is ambiguous

and must be construed in favor of coverage. In addition, under the

plain terms of the contract, we agree with the district court that the

exclusion contained in the Pacific Policy excludes coverage for liability imposed under the TRLA.

IV.

In sum, we hold that the district court did not abuse its discretion

in granting Pacific's Rule 59(e) motion to alter or amend the July 30,

1997 judgment rendered in favor of American National in its order of

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November 10, 1997. Additionally, we hold that the district court

properly held, in granting Pacific's motion for judgment on the pleadings as to Count I of the complaint, that the Pacific Policy excludes

coverage for liability imposed under the TRLA. Accordingly, the district court's judgment is affirmed.

AFFIRMED

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