UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-1557

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA,

Plaintiff - Appellant,

v.

EZRA LAMBERT; BETTY JEAN HALE,

Defendants - Appellees.

Appeal from the United States District Court for the Southern 

District of West Virginia, at Charleston. Joseph R. Goodwin, 

Chief District Judge. (2:08-cv-01158-JRG)

Argued: November 8, 2011 Decided: January 20, 2012

Before DUNCAN, WYNN, and DIAZ, Circuit Judges.

Reversed and remanded by unpublished opinion. Judge Diaz wrote 

the opinion, in which Judge Duncan and Judge Wynn joined.

ARGUED: Thomas Paul Mannion, MANNION & GRAY CO., LPA, Cleveland, 

Ohio, for Appellant. Brent K. Kesner, KESNER, KESNER & BRAMBLE, 

Charleston, West Virginia, for Appellees. ON BRIEF: Sylvester 

A. Hill, Jr., MANNION & GRAY CO., LPA, Cleveland, Ohio, for 

Appellant. Christopher J. Heavens, HEAVENS LAW OFFICES, 

Charleston, West Virginia; Gregory K. Smith, Williamson, West 

Virginia, for Appellee Betty Jean Hale.

Unpublished opinions are not binding precedent in this circuit.
2

DIAZ, Circuit Judge:

The district court entered summary judgment in favor of 

Betty Jean Hale and Ezra Lambert, ruling that Lambert was 

covered under West Virginia’s general insurance policy as a 

“volunteer worker.” Because we are convinced that Lambert, a 

prison inmate, cannot possibly meet the definition of “volunteer

worker” as found in the policy, we reverse and remand with 

instructions to enter judgment in favor of the insurer. 

I.

A.

Ezra Lambert is an inmate at the Southwestern Regional Jail 

(“Jail”) in West Virginia. As a sentenced inmate, Lambert is 

required to work at the Jail. He may announce a preference from

a limited menu of options to fulfill his work obligation, but 

the assignment is ultimately within the sole discretion of the 

Jail. Lambert sought to work in the kitchen, because he wished

“[t]o eat extra food and to get out of [his] cell.” J.A. 118. 

He accordingly submitted a written application to Aramark 

Correctional Services, Inc., the contractor in charge of kitchen 

operations. After interviewing with supervisors from Aramark, 

Lambert began work in the Jail’s kitchen. 

Lambert generally worked six days a week for eight hours 

each day as a cook in the kitchen. He received no financial 
3

benefits from his service. Although Lambert considered himself 

a volunteer, the Jail’s coercive authority over him was ever 

present. Indeed, the Jail provided Lambert with a stark 

reminder of its power when it disciplined him for protesting 

working conditions. Lambert quit work in the middle of a shift 

in an effort to attract attention to his workplace grievances. 

The Jail responded by locking him down--i.e., putting him in 

“the hole”--for five days. 

Betty Jean Hale worked with Lambert in the Jail’s kitchen, 

though she was not an inmate. Hale alleges that Lambert injured 

her on October 6, 2006. According to Hale, Lambert was pushing 

a cart housing a mixer. As Lambert neared Hale, the mixer fell

from the cart, landing on Hale’s foot. Hale alleges that she 

suffered a serious injury and incurred medical expenses as a 

result. 

B.

Pursuant to a comprehensive liability policy (“Policy”), 

West Virginia obtained insurance coverage from National Union 

Fire Insurance Company of Pittsburgh, PA. National Union agreed 

to “pay on behalf of the ‘insured’ all sums which the ‘insured’ 

shall become legally obligated to pay as damages because of 

‘bodily injury’ or ‘property damage’ to which this insurance 

applies, caused by an ‘occurrence.’ ” J.A. 23. It further 
4

assumed “the right and duty to defend any suit against the 

‘insured’ seeking damages on account of such ‘bodily injury’ or 

‘property damage.’ ” Id. 

The Policy defined “insured” as “any person or organization 

qualifying as an insured in the ‘persons insured’ provision of 

the applicable insurance coverage.” Id. 43. Critical to this 

dispute, the Policy enumerated the following entities as 

“persons insured”:

(A) The “Named Insured” [i.e., the State of West 

Virginia],

(B) Any elected or appointed official, executive 

officer, commissioner, director, or member of the 

“Named Insured” while acting within the scope of 

his duties as such,

(C) Any faculty member, employee, volunteer worker or 

student teacher of the “Named Insured” while 

acting within the scope of their duties as such.

Id. 25 (emphasis added). This appeal centers on whether Lambert 

qualifies as a “volunteer worker” for purposes of the Policy.

C.

Hale filed suit in state court in 2007 (“Underlying 

Action”), alleging various claims arising out of the mixer 

incident. She named as defendants Lambert, Aramark, the West 

Virginia Department of Military Affairs and Public Safety, and 

the West Virginia Regional Jail and Correctional Facility 

Authority. 
5

Notified of Hale’s suit, National Union filed a declaratory 

action in federal court, seeking a declaration that it has no 

duty to defend or indemnify Lambert with regard to the 

Underlying Action. “Based on the plain and unambiguous language 

of [the Policy],” alleged National Union, it “has no contractual 

duty to defend or provide any other policy benefits to . . . 

Lambert.” J.A. 18. In response, Hale asked the court to 

declare that Lambert is an “insured” under the Policy and 

therefore entitled to a defense and indemnification. Lambert

independently sought an identical declaration. 

National Union and Hale filed competing motions for summary 

judgment. A single issue confronted the district court--whether 

Lambert qualified as a “volunteer worker” under the Policy. The 

court answered that question in the affirmative, first 

determining that the term was unambiguous and then finding that 

Lambert “qualifies as a ‘volunteer worker’ under any reasonable 

definition of the term.” Id. 196. Because Lambert worked 

without compensation, elected to work in the kitchen rather than 

elsewhere, and considered himself a volunteer, the court ruled 

that the term “volunteer worker” encompassed him. 

The court accordingly entered judgment in favor of Hale and 

Lambert (“Appellees”), denying National Union’s motion for 

summary judgment. From this order National Union appeals. 
6

II.

We review a grant of summary judgment de novo, applying the 

same legal standards as the district court. The News & Observer 

Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 

(4th Cir. 2010). The Federal Rules’ familiar command guides our 

analysis, and summary judgment is appropriate “if the movant 

shows that there is no genuine dispute as to any material fact 

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

R. Civ. P. 56(a).

Appellees admit that Lambert is an “insured” under the 

Policy--and therefore entitled to a defense and indemnification-

-only if he is considered a “volunteer worker.” Further 

conceding that Lambert was obligated to work at the Jail in some 

capacity, Appellees nevertheless contend that Lambert’s choice 

to work in the kitchen counsels a finding that he qualifies as a 

“volunteer worker” under the Policy. We, however, are convinced 

that Appellees’ argument obscures the broader portrait of 

institutional confinement, which is hallmarked by the Jail’s 

coercive authority over inmates like Lambert. Attention to the 

realities of Lambert’s status as an inmate--in particular, his 

duty to work--compels reversal. Because we hold that the 

ordinary definition of “volunteer worker” does not include 

Lambert, we reverse and remand to the district court with 

instructions to enter judgment in favor of National Union.
7

A.

Under West Virginia law,1 courts must enforce the plain and 

unambiguous provisions of an insurance policy, refusing to 

become ensnared in the parties’ intricate interpretative 

debates. Shamblin v. Nationwide Mut. Ins. Co., 332 S.E.2d 639, 

642 (W. Va. 1985). Recognizing that a comprehensive insurance 

policy cannot possibly include a definition for every term used, 

courts applying West Virginia law must “accord the language of 

an insurance policy its common and customary meaning.” Boggs v. 

Camden-Clark Mem’l Hosp. Corp., 693 S.E.2d 53, 57–58 (W. Va. 

2010). In other words, “ ‘[l]anguage in an insurance policy 

should be given its plain, ordinary meaning.’ ” Id. at 58

(quoting Horace Mann Ins. Co. v. Adkins, 599 S.E.2d 720, 724 (W. 

Va. 2004)).

Only where a term is ambiguous--“ ‘reasonably susceptible of 

two different meanings or . . . of such doubtful meaning that 

reasonable minds might be uncertain or disagree as to its 

 1 The parties agree that West Virginia law governs 

interpretation of the Policy, with good reason. We apply the 

substantive law of the forum state, including the state’s 

choice-of-law rules, when sitting in diversity. Colgan Air, 

Inc. v. Raytheon Aircraft Co., 507 F.3d 270, 275 (4th Cir. 

2007). Under the law of West Virginia--the forum state here--

the law of the state in which the contract is executed and to be 

performed governs adjudication of claims arising out of that 

agreement. Howe v. Howe, 625 S.E.2d 716, 721 (W. Va. 2005). In 

this case, that state is West Virginia. 
8

meaning’ ”--will a court construe the policy “ ‘strictly against 

the insurer and liberally in favor of the insured.’ ” Shamblin, 

332 S.E.2d at 642 (quoting Surbaugh v. Stonewall Cas. Co., 283 

S.E.2d 859, 860–61 (W. Va. 1981)). But West Virginia courts are 

not predisposed to adjudge a term ambiguous, and “ ‘agreements 

are not necessarily ambiguous [just] because the parties 

disagree as to the meaning of the language of the agreement.’ ” 

Tri-State Asphalt Prods., Inc. v. Dravo Corp., 412 S.E.2d 225, 

230 (W. Va. 1991) (quoting Orteza v. Monongalia Cnty. Gen. 

Hosp., 318 S.E.2d 40, 43 (W. Va. 1984)). Moreover, even a 

provision facially amenable to alternative interpretations 

“should never be interpreted so as to create an absurd result.” 

D’Annunzio v. Security-Conn. Life Ins. Co., 410 S.E.2d 275, 279 

(W. Va. 1991) (quoting Soliva v. Shand, Morahan & Co., 345 

S.E.2d 33, 35 (W. Va. 1986)). Instead, such language “should 

receive a reasonable interpretation, consistent with the intent 

of the parties.” Id. at 41 n.1 (quoting Soliva, 345 S.E.2d at 

35). 

B.

Concluding, consistent with the parties and the district 

court, that the term “volunteer worker” is unambiguous, we next 

consider the appropriate contours of its meaning. 
9

We first look to the “common and customary meaning,” Boggs, 

693 S.E.2d at 58, of “volunteer.” Freedom from coercion and

absence of legal obligation compose the bedrock of definitions 

of “volunteer.” For instance, Black’s Law Dictionary defines 

“volunteer” as “[a] voluntary actor,” one who acts 

“[u]nconstrained by interference . . . [or] outside influence” 

and has no legal obligation. Black’s Law Dictionary 1711 (9th 

ed. 2009). Webster’s defines “volunteer” as “a person whose 

actions are not founded on any legal obligation so to act” and 

who acts “by free choice[,] . . . without compulsion or 

obligation.” Webster’s Unabridged Dictionary 2131 (2d ed. 

2001). And in the federal statutory context, the Fair Labor 

Standards Act (“FLSA”) considers as volunteers only those 

individuals whose “services are offered freely and without 

pressure or coercion, direct or implied.” 29 C.F.R. § 

553.101(c). 

Although no court has squarely applied the commonsense 

definition of “volunteer” to the prison context, judicial 

appraisal of the status of inmates for FLSA purposes guides our 

inquiry. Courts have soundly rejected prisoners’ claims that 

compulsion to work for less than the federal minimum wage 

contravenes the FLSA, holding that inmates are not “employees” 
10

for purposes of the statutory scheme.2 The Seventh Circuit 

provided a cogent explication for refusing to extend the term 

“employee” to cover an incarcerated individual:

Put simply, the [jail’s] “control” over [the inmate] 

does not stem from any remunerative relationship or 

bargained-for exchange of labor for consideration, but 

from incarceration itself. The control that the 

[jail] exercises over a prisoner is nearly total, and 

control over his work is merely incidental to that 

general control. Indeed, the Thirteenth Amendment’s 

specific exclusion of prisoner labor supports the idea 

that a prisoner performing required work for the 

prison is actually engaged in involuntary servitude, 

not employment. . . . [T]here is too much control to 

classify the relationship as one of employment.

Vanskike v. Peters, 974 F.2d 806, 809–10 (7th Cir. 1992)

(footnote omitted).

We looked to Vanskike with approval when we rejected an 

inmate’s argument that he was covered by the FLSA’s definition 

of “employee.” Harker v. State Use Indus., 990 F.2d 131, 133 

(4th Cir. 1993). We held “categorically” that the FLSA does not 

apply “to work done by inmates behind prison walls for any type

of prison-operated industry or for the prison itself.” Id. at 

135. Characterizing the jail-inmate relationship as 

 2 Appellees urge us not to rely on FLSA cases, because the 

cases do not involve insurance policies and are limited to 

disputes over the federal minimum wage. This view is 

shortsighted. Judicial evaluation of the argument that an 

inmate qualifies as an “employee” under the FLSA necessarily 

implicates questions of coercion and control, elements essential 

to disposition of this case. 
11

“custodial,” we reasoned that the jail “wields virtually 

absolute control over [inmates] to a degree simply not found in 

the free labor situation of true employment.” Id. at 133. That 

inmates may voluntarily apply for particular positions was of no 

moment to our analysis, as inmates “certainly are not free to 

walk off the job site and look for other work.” Id. We further 

found noteworthy that, “[w]hen a shift ends, inmates do not 

leave [jail] supervision, but rather proceed to the next part of 

their regimented day.” Id. Our analysis harmonizes with that 

of other circuits to later consider the issue. See Burleson v. 

California, 83 F.3d 311, 314 (9th Cir. 1996); McMaster v. 

Minnesota, 30 F.3d 976, 980 (8th Cir. 1994).

C.

Viewing the plain meaning of “volunteer worker” through the 

prism of West Virginia’s rules of insurance-policy construction, 

we find that Lambert assuredly does not qualify as a “volunteer 

worker” under the Policy. 

As the foregoing makes clear, absence of coercion is the 

thread uniting the disparate definitions of “volunteer.” To be 

considered a “volunteer worker,” then, Lambert must have elected 

to work of his own volition. A close look at West Virginia 

statutes and the nature of Lambert’s confinement reveals that 

his work in the kitchen was anything but voluntary. As an 
12

initial matter, Lambert conceded that he was obligated to work 

at the Jail in some capacity. The Jail’s policy is wholly 

consistent with West Virginia law, which requires inmates to 

participate in jail work assignments, W. Va. Code R. § 95-1-

21.3.3 Because Lambert was compelled to work at the Jail, he 

cannot be considered a “volunteer worker” under the Policy.4

The nature of incarceration and the jail-inmate 

relationship further underscores that Lambert is by no means a 

“volunteer worker.” We have emphasized that, “[b]ecause . . . 

inmates are involuntarily incarcerated, the [jail] wields 

virtually absolute control over them to a degree simply not 

 3 Appellees argue that a West Virginia regulation, W. Va. 

Code R. § 95-1-20.2, gives an inmate like Lambert the option of 

volunteering for work assignments. They mistakenly view this 

regulation out of context. In full, the regulation states, 

“Pre-trial and unsentenced detainees shall not be required to 

work except to do personal housekeeping. Any inmate may 

volunteer for work assignments or institutional programs.” Id. 

By its very terms, the regulation gives the option of 

volunteering for work assignments only to pre-trial and 

unsentenced detainees, a class that does not include Lambert. 

Indeed, for inmates who have already been sentenced, West 

Virginia regulations impose a duty to work. Id. § 95-1-21.3. 

4 Appellees’ reliance on In re Wissink, 81 P.3d 865 (Wash. 

Ct. App. 2003), misses the mark. The court in Wissink held that 

an inmate was properly classified as a volunteer where the jail 

did not require participation in work assignments, a factor 

critical to the court’s conclusion that the inmate “made an 

active and reasoned decision to work. . . . [and] was not 

coerced or forced to work in contravention of his own will.” 

Id. at 869. In stark contrast to the regime at issue in 

Wissink, the Jail required Lambert to work. Wissink is thus 

readily distinguishable. 
13

found in the free labor situation of true employment.” Harker, 

990 F.2d at 133; accord Vanskike, 974 F.2d at 810 (“[T]here is 

too much control to classify the [jail-inmate] relationship as 

one of employment.”). Because a volunteer generally enjoys more 

freedom than an employee and courts uniformly hold that a jail’s 

absolute authority over an inmate precludes a finding that an 

inmate is an employee, we have little trouble concluding that an 

inmate is not a “volunteer worker.” Indeed, Lambert’s thwarted 

protest provides a case study in the coercive authority of 

jails. Whereas a volunteer worker under the ordinary meaning of 

the term would have been free to leave his shift at his 

discretion without suffering a concrete penalty, Lambert was put 

in “the hole” for five days when he refused to finish his 

kitchen shift. At bottom, the Jail’s “virtually absolute 

control” over Lambert, Harker, 990 F.2d at 133, which renders 

Lambert’s status as a worker something approximating involuntary 

servitude, Vanskike, 974 F.2d at 809, yields an impossible fit 

between his role and the definition of “volunteer worker.” 

That Lambert succeeded in his efforts to obtain a work

assignment in the kitchen does not undermine his exclusion from 

Policy coverage. To be sure, Lambert submitted an application 

to work in the kitchen out of a desire “[t]o eat extra food and 

to get out of [his] cell.” J.A. 118. But his ability to 

express an assignment preference does not convert the 
14

overarching obligation to work from required to optional. See

Burleson, 83 F.3d at 314 (“[P]laintiffs mistakenly equate the 

ability to choose between various work programs offered by the 

[jail], with the freedom to ‘sell’ their labor.”). Had Lambert 

failed to submit an application or had the Jail denied his 

request to serve in the kitchen, he still would have been forced 

to work in some capacity. Nor does Lambert’s choice to apply 

for a job in the kitchen alter the Jail’s broader coercive 

authority and “virtually absolute control” over him, see Harker, 

990 F.2d at 133, factors that we find make Lambert anything but 

a “volunteer worker.” 

III.

The common and customary meaning of “volunteer worker” 

forecloses Lambert’s classification as an “insured” under the 

Policy. Accordingly, we reverse the judgment of the district 

court and remand for entry of judgment in favor of National 

Union.

REVERSED AND REMANDED