PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ TEAM INDUSTRIAL SERVICES, INC., Plaintiff - Appellant,

v. ZURICH AMERICAN INSURANCE COMPANY; WESTAR ENERGY, INC.; ENDURANCE AMERICAN INSURANCE COMPANY; WESTCHESTER FIRE INSURANCE COMPANY, Defendants - Appellees, and KELLI MOST, individually and as personal representative of the estate of Jesse Henson; CECILIA HENSON; DORIAN HENSON, Defendants. No. 22-3275

________________ _________________ Appeal from the United States District Court for the District of Kansas (D.C. No. 2:19-CV-02710-HLT)

________________ _________________ Nolan C. Knight, Munsch Hardt Kopf & Harr, P.C., Dallas, Texas for Appellant. Meredith A. Webster (joined by Larry D. Fields on the br ief), Kutak Rock LLP, Kansas City, Missouri for Appellee Zurich American Insurance Company. FILED United States Court of Appeals Tenth Circuit 

### November 29, 2023 Christopher M. Wolpert Clerk of Court Appellate Case: 22-3275 Document: 010110960226 Date Filed: 11/29/2023 Page: 12 John T. Bullock (joined by J. Eric Weslander and Kate M. Simpson on the briefs), Stevens & Brand LLP, Lawrence, Kansas for Appellee Westar Energy, Inc. Kevin Brooks, Baker Sterchi Cowden & Rice L.L.C., Kansas City, Missouri, Manuel Mungia and Chad Schreiber, Chasnoff, Mungia, Valkenaar Pepping & St ribling, LLP, San Antonio, Texas, and Sarah R. Smith, Lewis Brisbois Bisgaard & Sm ith, LLP, Houston, Texas, on the brief, for Appellee We stchester Fire Insurance Company. Brandon A. Howerton and Andrew D. Herold, Herold & Sager, Encinitas, California, on the brief, for Appellee Endurance American Insura nce Company.

________________ _________________ Before HARTZ , MORITZ , and ROSSMAN , Circuit Judges.

________________ _________________ HARTZ , Circuit Judge.

________________ _________________ Plaintiff Team Industrial Services , Inc. (Team) suffered a $222 million judgment against it in a wrongf ul-death lawsuit arising out of a steam-turbine failure in June 2018 at a Westar Energy, Inc. (Wes tar) power plant. Team seeks coverage for this liability from Westar, Zurich American Insurance Company (Zurich), and two other insurance companies, arguing that it was, or should have been, provided protection by Westar’s Owner-Controlled Insurance Program (OCIP) through insurance policies issued by Zuri ch and the two other insurers. 1 Team’s claims derive from the fact that its liabili ty for the failure at the We star power plant arose from work that had previously been performed by Furmanite America, Inc. (Furmanite),

1 Zurich issued the primary liability po licy, with Westchester Fire Insurance Company and Endurance Ameri can Insurance Company pr oviding two layers of excess coverage. The excess-cove rage policies “‘followed fo rm’ to the Zurich Policy, meaning those policies were generally govern ed by the terms of the Zurich Policy,” and the parties agree that th e excess carriers need not be treated separately. Aplee. Br. at 4; see Aplt. Br. at 37–38. Appellate Case: 22-3275 Document: 010110960226 Date Filed: 11/29/2023 Page: 23 which did have covera ge under Westar’s OCIP. The Unite d States District Court for the District of Kansas gran ted summary judgment to Defe ndants, and Team appeals. Although Team vigorously pres ents its arguments for revers al, we are not persuaded. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND The relevant facts are not disputed. In 2010 Westar entered into separate Master Services Agreements (MSAs) with Furmanite and Team to perform work at the Westar power plant and other sites. Te am was to perform “pre-heat and stress relieving” services and Fu rmanite was to perform “val ve maintenance” services. Team Indus. Servs., Inc. v. Zurich Am. Ins. Co . ( Team Indus. Servs. ), No. 2:19-CV02710-HLT, 2022 WL 16961237, at *2 (D. Kan. Nov. 16, 2022). Both MSAs state that Furmanite and Team are independent contractors required to procure their own liability insurance and to name Westar as an additional insured on the policies. They both also state that “Contractor shall not assign or transfer a ny of its rights or obligations . . . under this Contract without previous written consent of [Westar] which consent shall not unreasonably be wit hheld.” Aplt. App., Vol. 3 at 75, 174. In 2013 Westar instituted its OCIP , through which contractors and subcontractors could obtain insurance prot ection for work performed at covered locations. Westar had discreti on to decide which contract ors would be eligible to enroll in the OCIP. Eligible contractors had to comple te enrollment forms to be considered for participation. During the time relevant to this dispute, insurance was provided by a Zurich policy, whose premiu ms were paid by Westar. According to Appellate Case: 22-3275 Document: 010110960226 Date Filed: 11/29/2023 Page: 34 Zurich’s policy, an enrolled contractor’s “rights and duties under this policy may not be transferred without [Zurich’s] writte n consent.” Aplt. App., Vol. 15 at 5. With permission from Westar, Furmanite submitted an application seeking enrollment in the OCIP and was enrolled in 2013. Furmanite then obtained login credentials to an online portal operated by Westar’s insurance broker, Aon Risk Services Southwest, Inc. (Aon), where Fu rmanite was required to report payroll hours for each month. The payroll hours reported to Aon were used by Zurich to calculate the premium to be paid by Westar for the relevant policy period. Westar never made Team eligible to enroll in the OCIP, Team never submitted an enrollment application, and it was never enrolled. In February 2016 Team’s parent co mpany acquired Furm anite’s parent company. Although Team and Furmanite became “sister companies,” they were distinct legal entities and never merg ed. In September 2017 Team and Westar executed Change Order No. 2 to the Team C ontract, which, as discussed more fully below, consolidated the MSAs of Furman ite and Team, retiring the Furmanite MSA and providing that purchase orders that had been issu ed to Furmanite would be reissued to Team. After th e execution of that cha nge order, Team assumed Furmanite’s workload at th e power plant. Furmanite’s insurance coverage under the Westar OCIP continued even though its service contract had been retired. See Team Indus. Servs. , 2022 WL 16961237, at *3 (“Westar may have submitted a 2018 re-enrollment on Furmanite’s behalf. . . . The bottom line is Furmanite’s coverage continued, even after it perhaps should have ended.”). A Team employee used Appellate Case: 22-3275 Document: 010110960226 Date Filed: 11/29/2023 Page: 45 Furmanite’s login credentials to upload payr oll hours to the Aon payroll portal, and, for a number of months beginning in June 20 17, 0 hours and 0 payroll were logged in by a Team employee in Furmanite’s name for every month except April 2018. The parties stipulated th at the hours Team logged in unde r Furmanite’s name for April 2018 were for work by Team unre lated to the June 2018 accident. In the proceedings below, Team argued that it inherited Furmanite’s coverage under the OCIP via Change Order No. 2 a nd was therefore insu red for the work it performed at the power plant. In the alternative, Team reque sted that the court reform the Zurich policy to list T eam as an insured instead of Furmanite or enforce an insurance agreement through th e doctrine of promissory es toppel against Westar and Zurich. Team also argued that Westar breached a fiduciary duty by failing to provide OCIP coverage for Team. Westar and Zuri ch moved for summary judgment, and the district court gr anted both motions. See Team Indus. Servs. , 2022 WL 16961237, at *1. It ruled that Change Order No. 2 unamb iguously retired Furmanite’s MSA and left Team’s MSA as the sole governing docum ent. The court declin ed to reform the Zurich policy and rejected the promisso ry-estoppel, breach-of-contract, and breachof-fiduciary-duty claims. We affirm. 2

2 Team also appeals the de nial of its request for a declaratory judgment. Our rejection of its appeal on the other causes of action also disposes of the request for declaratory judgment, which is pr edicated on the same claims. Appellate Case: 22-3275 Document: 010110960226 Date Filed: 11/29/2023 Page: 56 II. DISCUSSION We review de novo a grant of summary judgment, applying the same legal standards that are to be us ed by the district court. See Merrifield v. Bd. Of Cnty.
Comm’rs , 654 F.3d 1073, 1077 (10t h Cir. 2011). A grant of summary judgment is appropriate if “the movant shows that ther e is no genuine dispute as to any material fact and the movant is entitle d to judgment as a matter of law.” Fed. R. Civ. P. 56(a). On review, “[w]e examine the record and all reasonable inferences that might be drawn from it in the light most fa vorable to the non-moving party.” Merrifield , 654 F.3d at 1077 (internal quotation marks omitted). The parties do not dispute the district court’s determinati on that Kansas law governs the substantive issues we address on appeal. We start with the claims that Zuri ch breached a contractual obligation to insure Team and that West ar breached a contractual obligation to continue Furmanite’s OCIP cove rage for the benefit of Team. “The primary rule for inte rpreting written contracts is to ascertain the parties’ intent.” Osterhaus v. Toth , 249 P.3d 888, 896 (Kan. 20 11). “If the terms of the contract are clear, the intent of the parties is to be dete rmined from the language of the contract without applyi ng rules of construction.” Id . Whether the contractual language is ambiguous is a matter of law for courts to decide. See Waste Connections of Kan., Inc. v. Ritchie Corp. , 298 P.3d 250, 265 (Kan. 2013). Team contends that the amendment to Team’s MSA by Change Order No. 2 unambiguously entitles it to Furmanite’s insurance coverage. We cannot agree. Appellate Case: 22-3275 Document: 010110960226 Date Filed: 11/29/2023 Page: 67 To begin with, enrollment in Westar ’s OCIP does not happen automatically. Westar alone designates which contractors are eligible, and eligible contractors must apply to enroll in the program, and then be accepted by Westar, in order to receive coverage. Also, under the express terms of the Zurich insuran ce policy, coverage cannot be transferred without Zurich’s c onsent. Yet Team never enrolled, or was even invited to enroll, in We star’s OCIP. Nor did Zurich ever give written approval to a transfer of coverage from Furmanite to Team. The failur e to satisfy these requirements would appear to be dispositive of Team’s breach-of-contract claims. Team argues, however, that these failure s were cured by Change Order No. 2, which states:
Note : On February 29, 2016 Furm anite was acquired by TEAM Industrial Services, Inc. This cha nge order will consolidate the two services contracts th at Furmanite (902236) [Furmanite MSA] and TEAM (902228) [Team MSA] hol d with Westar Energy and become effective as of September 1, 2017

. Furmanite Contract 902236 will be retired and all pending PO’s [purchase orders] under the pr evious FURMANITE supplier ID 0000533098 will be rei ssued under TEAM INDUSTRIAL SERVICES, INC., supplier ID 0000431446 to be governed by the terms & conditions of Contract 902228 [Team MSA]. Aplt. App., Vol. 2 at 294. The ar gument is creative, but unpersuasive. The Change Order contains nary a menti on of insurance coverage or the OCIP. There is no ambiguity in the language of th e change order from which one could infer that Team would thereafter be provided insu rance coverage through the Westar OCIP or otherwise. Appellate Case: 22-3275 Document: 010110960226 Date Filed: 11/29/2023 Page: 78 Team nevertheless insists that all is resolved by the word consolidate in the first paragraph of the change order. It contends that co nsolidation of the Furmanite and Team service contracts necessarily resu lts in coverage for Team by the insurance already provided to Furmanite. There are at least two fata l flaws in this argument. First, neither of the consolidated MS As provides insurance coverage. Both unambiguously state that contractors must procure and maintain their own liability insurance. At most, the Furm anite MSA, as amended by wh at the parties referred to as “Change Order No. 1” (which we quote la ter in this discussi on) notes the possible creation of the OCIP, but that change order does not even grant permission to Furmanite to seek enrollment in the OCIP, much less provide coverage. Thus, even if Team had been assigned the Furmanite MSA, it would not thereby obtain any insurance coverage. Second, Change Order No. 2 rendere d the Furmanite MSA a nullity. It explicitly states that the Furm anite service contract is “ret ired.” Team contends that this unambiguous declaration in the change order cannot m ean what it says because such a construction w ould contradict the consolidate language earlier in the change order. We disagree. We be gin with the definition of consolidate adopted by the district court and endorsed by both parties. The court said : “The ordinary meaning of ‘consolidate’ is ‘to join together into one whole: unite.’ Merriam-Webster.com Dictionary, https://www.merriam-webster.c om/dictionary/consolidate . . . Black’s Law Dictionary defines conso lidate as ‘To combine or unify (separate items) into one mass or body, esp. in order to make them more effective or easier to deal with.’ Appellate Case: 22-3275 Document: 010110960226 Date Filed: 11/29/2023 Page: 89 Black’s Law Dictionary (11th ed. 2019).” Team Indus. Servs. , 2022 WL 16961237, at *7. The thrust of Team’s argument is that if the two service contracts are to be made “into one whole,” then the resulting whole must include the insurance coverage that had been provided to Furmanite (eve n though, as just di scussed above, that coverage was not provided in the Furman ite MSA). But Team does not explain why the resulting whole must adopt a provision in one service contract that does not appear in the other. The short of the matt er is that th ere are a number of ways in which the two service contracts could be consolidated so th at the parties end up with a single contract. That is why the change order includes a second paragraph, which sets forth how the consolidation should be accomplished—by, among other things, retiring Furmanite’s service contract. One cannot infer from Change Order No. 2 that Team was to be protected by insurance coverage previously held by Furmanite. Team also appears to argue that it was, or should have been, covered by the OCIP because of (1) language in Change Order No. 1 to the MSA between Westar and Furmanite requiring Westar to maintain coverage for contractors participating in the OCIP and (2) language in the OCIP doc uments requiring Westar to give notice if coverage is being di scontinued. Again, we are not persuaded. Change Order No. 1 states: “[Westar], at its sole option and cost, reserves the right to implement an Owner[] Controlled In surance Program (OCIP), and, except as otherwise provided herein, maintain at all times during the performance of this Contract, the insurance specified in A ttachment 4, Owner Controlled Insurance Program Requirements.” Aplt. App., Vol. 2 at 293. According to Team, since Appellate Case: 22-3275 Document: 010110960226 Date Filed: 11/29/2023 Page: 910 Furmanite’s work for Westar was insured under the OCIP and that work was then continued by Team, Westar was required to maintain coverage for that work. This argument fails on at le ast two grounds. First, the Change Order does not require Westar to do anything. It says th at Westar “at its so le option and cost, reserves the right to” impl ement an OCIP and maintain it during the contract. Id. Second, the insurance policy was issued fo r contractors, not work. Coverage under the OCIP and the Zurich policy was for work conducted by a particular insured

contractor. It made a difference who was doing the work. No contractor could participate in the OCIP unless Westar authorized the company to submit an application for enrollment and Westar a pproved the application. The MSAs stated that no rights or duties under the contract could be transferred by the contractor without Westar’s approval. See Aplt. App., Vol. 3 at 75, 174 (“Contractor shall not assign or transfer any of its rights or ob ligations . . . under this Contract without previous written consent of [Westar] which consent shall not unreasonably be withheld.”). And the Zurich policy said that rights under the policy could not be transferred without Zurich’s permission. 3 Further, Team does not explain how coverage would be implemented. Team had been performing, and would continue to

3 As Appellees point out in their brief, the absence of Zurich ’s written consent was an independent basis for the district court’s rejection of the breach-of-contract claims. See Team Indus. Servs., 2022 WL 169612 37, at *9, *11

. But Team does not address that basis on appeal and therefor e waived any challenge to those rulings. See Rivero v. Bd. of Regents of Univ. of New Mexico , 950 F.3d 754, 763 (10th Cir. 2020) (“If the district court stat es multiple alternative gr ounds for its ruling and the appellant does not challenge all those gro unds in the opening brief, then we may affirm the ruling.”). Appellate Case: 22-3275 Document: 010110960226 Date Filed: 11/29/2023 Page: 1011 perform, a good deal of work that had ne ver been performed by Furmanite. Now that Team would be participating in the OCIP , would all its work be covered by the Zurich policy or just the work previous ly performed by Furman ite? Such potential complications are one reason why coverage would be contractor specific and not based solely on the work performed. Chan ge Order No.1 gave Team no right to assume the insurance covera ge provided to Furmanite. As for the OCIP, the language in the pr ogram documents relied on by Team is: “In the event [Westar], for any reason, is unable to furnish or after commencement of Work or Services elects not to furnish or to continue to furnish the insurance as specified . . . and upon 30 days written notice from [Westa r] the following shall be required.” Aplt. App., Vol. 4 at 46. Th e document proceeds to state that those previously enrolled in the OCIP must obt ain replacement insurance before the OCIP coverage terminates, with We star covering the cost of a dditional premiums. We think it clear that the notice is to go only to contractors already covered by the OCIP, not contractors—like Team—who are not enrolled in the program. In sum, no contractual promise by Westar or Zurich entitled Team to coverage under the OCIP. The district court properl y rejected Team’s claims for breach of

contract. Team’s remaining claims can be readily disposed of. First, it seeks reformation of Westar’s OCIP insurance policy with Zurich, claiming that it was an error by Westar “that le[]d Zurich to issue coverage in the name of [Furmanite rather than Team].” Aplt. Br. at 53. “Reformation is that remedy by means of which a written Appellate Case: 22-3275 Document: 010110960226 Date Filed: 11/29/2023 Page: 1112 instrument is made or construed to expre ss or conform to the r eal intention of the parties, when some error or mistake has been committed.” Liggatt v. Emps. Mut. Cas.
Co ., 46 P.3d 1120, 1128 (Kan. 2002) (inter nal quotation marks omitted). The law of reformation recognizes that “written contracts do not alwa ys accurately reflect the parties’ antecedent ag reement,” and is available only in instances of “mutual mistake or fraud.” Id. (internal quotation marks omitted) . “[W]hen a court determines an instrument does not reflect the terms inte nded by the parties to it, the court then revises the terms written in the instrument to reflect th e intent of the parties.” Id. (cleaned up). Since Zurich was necessarily one of the parties to the insurance contract, reformation would require proof th at Zurich intended to insure Team. But Team provides no argument, much less evidence, that Zurich intended to name Team as an insured. In any even t, the Zurich policy explici tly protects Zurich from such claims by requiring any transfer of coverage to be approved by Zurich in writing. Aplt. App., Vol. 15 at 5 (“Your rights and duties under this policy may not be transferred without [Zurich’s] written consent.”). Even if Westar made a mistake with respect to Team’s coverage under the Zurich policy, refo rmation requires mistakes by both parties to the contract. Team also contends that Westar br eached a fiduciary duty imposed by the OCIP to ensure that Team was covered by the OCIP or at leas t provide notice to Team if it was not to be covered for the work that had been performed by Furmanite. But even if we assume that this duty imposed on Westar was a fiduciary duty, it was not, as we explained above, a duty owed to Team because Team had never been Appellate Case: 22-3275 Document: 010110960226 Date Filed: 11/29/2023 Page: 1213 covered under the OCIP. It would have been a duty owed only to Furmanite. And because we have already rejected the ar gument that Team inherited Furmanite’s OCIP coverage, we also rej ect the argument that any fiduc iary duty owed by Westar to Furmanite under the OCIP was automa tically transferred to Team upon its assumption of Furman ite’s work duties. Finally, Team raises a perfunctory claim of promissory estoppel. Such a claim may arise if “(1) [t]he prom isor reasonably expected the promisee to act in reliance on the promise, (2) the promisee acted as c ould reasonably be exp ected in relying on the promise, and (3) a refusal of the cour t to enforce the prom ise would sanction the perpetration of fraud or resu lt in other injustice.” Mohr v. State Bank of Stanley , 770 P.2d 466, 481 (Kan. 1989). As best we can tell, Team is asserting that Westar is estopped from denying that it was to provi de coverage for Team under the OCIP because of promises made to Team. First, Team incorpor ates its previous arguments that Change Order No. 2 constituted a pr omise to cover Team under the OCIP. We need not repeat why we reject that argumen t. Second, Team points to its reporting of payroll data through the Aon portal after Team had taken over the work previously performed by Furmanite. But there is no a llegation that Westar knew about this reporting, so it could hardly have expected to induce Team’s reliance. Nor was there any evidence of a promise by Zurich to provide insurance coverage to Team. 4

4 Because we rule in favor of Appellees on other grounds, we need not address their collateral-estoppel argument base d on the judgment in the wrongful-death lawsuit. Appellate Case: 22-3275 Document: 010110960226 Date Filed: 11/29/2023 Page: 1314 III. CONCLUSION
We AFFIRM the judgment of the district court. Appellate Case: 22-3275 Document: 010110960226 Date Filed: 11/29/2023 Page: 14