Filed: May 27, 2009 

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-1885 

 (1:08-cv-00249-LMB-TRJ) 

CACI INTERNATIONAL, INCORPORATED; CACI, INCORPORATED - 

FEDERAL; CACI PREMIER TECHNOLOGY, INCORPORATED; CACI N.V., 

 Plaintiffs – Appellants, 

 v. 

ST. PAUL FIRE AND MARINE INSURANCE COMPANY, 

 Defendant – Appellee. 

O R D E R 

The court amends its opinion filed May 14, 2009, as follows: 

On page 2, attorney information section, the names “Brian J. 

Gerling, HUNTON & WILLIAMS, LLP, McLean, Virginia, Reginald M. 

Skinner, HUNTON & WILLIAMS, LLP, Richmond, Virginia, for Appellee” 

are added at line 5. 

For the Court - By Direction 

 /s/ Patricia S. Connor 

 Clerk 
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CACI INTERNATIONAL, 

INCORPORATED; CACI,

INCORPORATED - FEDERAL; CACI

PREMIER TECHNOLOGY,

INCORPORATED; CACI N.V.,

Plaintiffs-Appellants,  No. 08-1885

v.

ST. PAUL FIRE AND MARINE

INSURANCE COMPANY,

Defendant-Appellee. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(1:08-cv-00249-LMB-TRJ)

Argued: March 26, 2009

Decided: May 14, 2009

Before WILKINSON and SHEDD, Circuit Judges, and

David A. FABER, Senior United States District Judge for

the Southern District of West Virginia, sitting by

designation.

Affirmed by published opinion. Judge Wilkinson wrote the

opinion, in which Senior Judge Faber joined. Judge Shedd

wrote a dissenting opinion.
COUNSEL

ARGUED: John Edward Heintz, KELLEY, DRYE &

WARREN, LLP, Washington, D.C., for Appellants. Walter J. 

Andrews, HUNTON & WILLIAMS, LLP, McLean, Virginia, 

for Appellee. ON BRIEF: David Laufman, KELLEY, DRYE 

& WARREN, LLP, Washington, D.C., for Appellants. Brian 

J. Gerling, HUNTON & WILLIAMS, LLP, McLean, Virginia, 

Reginald M. Skinner, HUNTON & WILLIAMS, LLP,

Richmond, Virginia, for Appellee.

OPINION

WILKINSON, Circuit Judge:

CACI International ("CACI") appeals the district court’s decision that its insurer, St. Paul Fire and Marine Insurance Company ("St. Paul"), had no duty to defend CACI against claims alleging torture and abuse at Abu Ghraib and other prisons in Iraq. 

CACI acknowledges that the insurance policies at issue in this 

case generally limit coverage to the United States and Canada. 

Still, CACI argues that some of the underlying claims implicate 

events that happened in the United States, and that other claims 

fall under an exception to the coverage provision for employees 

who were away from home for a "short time."

We agree with the district court that the underlying

complaints cannot be read to allege events that happened in the 

coverage territory. Under well-established principles of

insurance law, the place of the injury—not the place of some 

precipitating cause—determines the location of the "event" for 

coverage purposes. Further, the underlying complaints do not 

allege that any injuries resulted from the activities of a CACI 

employee who was in Iraq for a "short time." Requiring St. Paul 

to defend CACI on the mere possibility that some employee may 

have been briefly in Iraq would allow the policies’ exception to 

non-coverage to swallow the rule. We thus decline to extend 

CACI’s coverage beyond the plain terms of its policies and 

affirm the judgment of the district court.

2 CACI INT’L v. ST. PAUL FIRE
I.

A.

In 2003, CACI International entered into three contracts

with the United States government to provide logistical and

intelligence support for U.S. operations in Iraq.* This work

included screening and interrogating detainees at Abu Ghraib

and other prisons in Iraq. Also in 2003, CACI took out a oneyear "Commercial General Liability Protection" policy with

St. Paul, which provided that St. Paul would defend CACI

against any suit for covered injuries or damage and would

indemnify CACI for up to $2 million. See Policy TE09001851

("Policy A"), March 31, 2003. CACI renewed this policy for

an additional year in March 2004. For purposes of this case,

the two policies are identical in all material respects and we

will refer to them as "the policies."

The policies covered "bodily injury" that was "caused by an

event." Policy A at 2. They in turn defined "event" as "an

accident, including continuous or repeated exposure to substantially the same general harmful conditions." Id. They also

obligated St. Paul to pay any legally required damages for

"covered personal injury" that was "caused by a personal

injury offense." Id. But with one exception, the policies limited coverage to specific geographic areas, stating:

We’ll apply, and make payments under, this agreement:

• only in the coverage territory; and

*The suit involves four appellants: three named insureds, CACI International, Inc., CACI Inc. Federal, and CACI N.V.; and CACI Premier Technology, Inc., which is a wholly-owned subsidiary of CACI Federal.

Because all four appellants were covered by the St. Paul policies, we consider their coverage as a group and refer to them collectively as "CACI."

CACI INT’L v. ST. PAUL FIRE 3
• only for covered injury or damage that’s caused

by events or offenses which happen or are committed there.

Id. at 5. The "coverage territory" was defined as the United

States, its territories and possessions, Canada, and Puerto

Rico. But the policies also stated that:

[W]e’ll also apply, and make payments under, this

agreement in the coverage territory for covered

injury or damage that’s caused by events or offenses

which happen or are committed in the rest of the

world if:

. . .

• they result from the activities of a person whose

home is in the coverage territory, but is away

from there for a short time on your business

. . . .

Id. Therefore, the policies included a "short time" exception

to the general bar on coverage outside the home territory.

In the summer of 2004, CACI was sued by two groups of

former Iraqi detainees and their survivors who alleged torture

and abuse by CACI employees at Abu Ghraib and other prisons in Iraq. The first suit accused CACI and another corporation of implementing an ongoing "torture conspiracy" that, it

alleged, the defendants began in 2001 with the goal of profiting by extracting "intelligence" through torture. Al Rawi v.

Titan Corp., No. 3:04-CV-01143, ¶¶ 72, 74, 76 (S.D. Cal.

filed June 9, 2004) (the "Saleh complaint"). The complaint

alleged that the torture conspiracy "exist[ed] separate and

apart from the ongoing lawful operations" of the defendants,

and included specific actions such as stripping detainees,

threatening them with dogs, kicking them, and forcing them

to watch family members being tortured. Id. ¶¶ 74, 90(b), (e),

4 CACI INT’L v. ST. PAUL FIRE
91, 97(d). Finally, the complaint alleged negligent supervision

and hiring on the part of CACI. Id. ¶¶ 274-76.

The second lawsuit made similar allegations. It claimed

that CACI employees had beaten detainees, deprived them of

food, stripped and photographed them, and forced them to

witness violent attacks on their relatives. Ibrahim v. Titan

Corp., No. 1:04-CV-1248, ¶¶ 36(a)-(b), 39(e)-(f), 44(d)

(D.D.C. filed July 27, 2004) (the "Ibrahim complaint"). The

complaint also alleged that CACI and other defendants had

"engaged in an ongoing, multi-year pattern of criminal conduct for which the enterprise has earned . . . millions of dollars in profits." Id. ¶ 60. Because of the similarities in the two

complaints, the Saleh case was transferred to the U.S. District

Court for the District of Columbia, where it was consolidated

with Ibrahim for purposes of discovery. Saleh v. Titan Corp.,

436 F. Supp. 2d 55, 59-60 (D.D.C. 2006).

B.

When St. Paul received notice of these complaints, it notified CACI that it believed the alleged abuses did not implicate

St. Paul’s duty to defend or indemnify under the policies. In

March 2008, CACI filed a declaratory judgment action in federal district court in Virginia, seeking a declaration that St.

Paul was obligated under the policies to defend CACI in both

lawsuits. St. Paul countered that it had no duty to defend or

indemnify CACI. Both parties filed motions for summary

judgment.

In July 2008, the district court granted St. Paul’s motion for

summary judgment and denied CACI’s. See CACI Int’l v. St.

Paul Fire & Marine Ins. Co., 567 F. Supp. 2d 824, 835 (E.D.

Va. 2008). In considering whether St. Paul had a duty to

defend, the district court applied the Eight Corners Rule,

which requires courts "‘to compare the four corners of the

insurance policy against the four corners of the underlying

complaint [to determine] if any allegations may potentially be

CACI INT’L v. ST. PAUL FIRE 5
covered by the policy.’" Id. at 829 (quoting Capitol Envtl.

Servs., Inc. v. N. River Ins. Co., 536 F. Supp. 2d 633, 640

(E.D. Va. 2008)).

While affirming the importance of the Eight Corners Rule,

the district court noted that few courts have discussed what

evidence is "intrinsic" to the complaint and may be considered along with it. The court therefore compared the Eight

Corners Rule to the "well-established Four Corners Rule,"

which limits what federal courts may consider when ruling on

a Fed. R. Civ. P. 12(b)(6) motion to dismiss. Id. at 831. Under

this rule, the Fourth Circuit has held that courts may consider

the complaint itself and any documents that are attached to it.

Id. (citing Sec’y of State for Def. v. Trimble Navigation Ltd.,

484 F.3d 700, 705 (4th Cir. 2007)). This circuit has also held

that courts may consider a document that the defendant

attaches to its motion to dismiss if the document "‘was integral to and explicitly relied on in the complaint and if the

plaintiffs do not challenge its authenticity.’" Id. (quoting Am.

Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d 212,

234 (4th Cir. 2004)). Applying those standards to the Eight

Corners Rule, the district court concluded that it would consider documents outside the complaint if (1) they were

attached to the complaint; or (2) the complaint explicitly

relied on the documents and no party challenged their authenticity. Id. at 832.

The court therefore looked at two documents attached as

Exhibits A and D to the Saleh complaint: a job posting for linguistic support positions with "Team Titan," a collaboration

between CACI and other corporations; and a military report

on Abu Ghraib that discussed the involvement of two CACI

employees in abuses there. See id. The court also considered

CACI’s contracts with the U.S. government, which it concluded were "expressly incorporated into the complaints,"

noting that "several of [the detainees’] legal claims [were]

predicated on the contractual relationships created by" the

contracts. Id. Further, CACI had not challenged the contracts’

6 CACI INT’L v. ST. PAUL FIRE
authenticity and had even offered them as evidence to support

its motion for summary judgment in the Saleh proceeding. See

id. Finally, the district court noted that, in addition to the policies at issue here, CACI had a Global Policy with St. Paul that

covered events outside the policies’ coverage territory but

specifically excluded Iraq. Although the Global Policy was

not part of the underlying complaints, its provisions were

described in a declaration attached as Exhibit E to CACI’s

complaint in the declaratory judgment action.

After comparing these documents—along with the complaints themselves—to the St. Paul policies, the district court

concluded that CACI could not invoke coverage under the

short time exception because the "alleged activities, by their

very nature, [were] not indicative of a brief overseas business

trip, but rather of a more permanent presence in Iraq." Id. The

court also held that the claims of negligent supervision and

hiring in the Saleh complaint did not allege activities within

the United States because "the factual predicate for such

claims arises from the underlying tortious conduct of the

employee," all of which took place in Iraq. Id. at 835. CACI

now appeals.

C.

Because we have diversity jurisdiction in this case, we

apply the choice of law rules of the forum state—in this case,

Virginia. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S.

487, 496-97 (1941). Virginia insurance law applies "the law

of the place where an insurance contract is written and delivered." Buchanan v. Doe, 431 S.E.2d 289, 291 (Va. 1993).

Because St. Paul delivered the policies to CACI in Virginia,

we apply Virginia law. We review a grant of summary judgment de novo. Fuisz v. Selective Ins. Co. of Am., 61 F.3d 238,

241 (4th Cir. 1995).

CACI INT’L v. ST. PAUL FIRE 7
II.

A.

This case is not about the conduct of the war in Iraq. It is

simply a case about certain principles of insurance. It is also

not a case about whether coverage could exist, but whether it

did. Principles of insurance law in Virginia, as elsewhere, are

solicitous of insureds. For example, ambiguous terms in a policy are construed against the insurer, who wrote the policy

and presumably could have written it more clearly. E.g.,

Fuisz, 61 F.3d at 242. And as CACI points out, doubts over

coverage are typically to be resolved in favor of the policyholder and against a limitation of coverage. See Am. Reliance

Ins. Co. v. Mitchell, 385 S.E.2d 583, 585 (Va. 1989).

Likewise, it is well-recognized that an "insurer’s obligation

to defend is broader than its obligation to pay." Brenner v.

Lawyers Title Ins. Corp., 397 S.E.2d 100, 102 (Va. 1990). For

while the duty to defend is based on the allegations in the

underlying complaint, the duty to indemnify relies on litigated

facts. Policyholders often pay more to insure against the costs

of defending lawsuits, even those that are ultimately unsuccessful. See Perdue Farms, Inc. v. Travelers Cas. & Sur. Co.

of Am., 448 F.3d 252, 257-58 (4th Cir. 2006). Therefore, Virginia and other states recognize the "potentiality rule,"

wherein "an insurer’s duty to defend is triggered if there is

any possibility that a judgment against the insured will be

covered under the insurance policy." Bohreer v. Erie Ins.

Group, 475 F. Supp. 2d 578, 584 (E.D. Va. 2007). St. Paul

must therefore defend CACI against the detainee lawsuits if

there is any potential that the policies would cover the claims

alleged in the underlying complaints. See, e.g., Va. Elec. &

Power Co. v. Northbrook Prop. & Cas. Ins. Co., 475 S.E.2d

264, 265-66 (Va. 1996).

But the duty to defend is not without limits. To implicate

the duty, the underlying complaint must allege some facts on

8 CACI INT’L v. ST. PAUL FIRE
which the insurer would be liable. Therefore, even construing

policies in favor of the insured, and even considering Virginia’s potentiality rule, "if it appears clearly that the insurer

would not be liable under its contract for any judgment based

upon the allegations," the duty to defend will not attach. Brenner, 397 S.E.2d at 102.

It is also important to resolve disagreements over the duty

to defend—which is after all a collateral matter—as early as

possible in litigation. That is why Virginia and other states

have adopted the Eight Corners Rule, which requires courts

to look primarily at the underlying complaints and the insurance policy to determine if there is a potential for coverage.

E.g., Am. Online, Inc. v. St. Paul Mercury Ins. Co., 207 F.

Supp. 2d 459, 465 (E.D. Va. 2002). This rule serves a salutary

purpose: it prevents courts from conducting an intensive factual analysis at an early stage of the proceedings, which

would only increase litigation costs and needlessly tax parties

and courts before the underlying suit had barely begun. Moreover, permitting courts to consider evidence outside the complaint would not only lead to duplicative factual inquiries in

determining the duty to defend and the duty to indemnify, but

"would render the two duties indistinguishable and thus effectively depreciate the duty to defend." Capitol Envtl. Servs.,

536 F. Supp. 2d at 642.

Therefore, the district court properly began its inquiry by

looking at the complaints themselves. See CACI Int’l, 567 F.

Supp. 2d at 832. It is less clear, however, whether the district

court properly extended its inquiry by considering those documents attached to or relied on by the complaints. On the one

hand, looking beyond the complaint might become a slippery

slope. On the other hand, considering documents attached to

the complaint would not entail the extensive factual inquiries

or lengthy litigation that the Eight Corners Rule seeks to prevent. As the district court noted, we have held in the Rule

12(b)(6) context that courts may look at documents that the

defendant attaches to its motion to dismiss. E.g., Trimble NavCACI INT’L v. ST. PAUL FIRE 9
igation Ltd., 484 F.3d at 705. But those cases are partly motivated by concerns that a plaintiff could prevail on a motion

to dismiss by selectively quoting documents in the complaint

without providing their full context; therefore, courts can prevent such manipulation by considering the documents in their

entirety when presented by the defendant. See Trigon Healthcare, 367 F.3d at 234. But there is no apparent need in the

insurance context to counter possible manipulations by the

plaintiff in the underlying complaint.

Because the question is a matter of state insurance law

rather than of federal procedure, and because Virginia courts

have not signaled a readiness to look beyond the underlying

complaint, we will decline to consider those documents

attached to the complaints or on which the complaints in the

underlying action rely. Moreover, we find it unnecessary to

consider these documents because, as we hold below, the allegations in the complaints themselves foreclose the possibility

of coverage under the territorial provision or "short time"

exception of the policies.

B.

To assess whether St. Paul has a duty to defend in this case,

we first ask whether the abuses alleged in the underlying complaints took place inside the coverage territory. To answer this

question, we look initially to the policies to determine the

scope of coverage. As noted, the policies agree to defend

against suits seeking damages for "covered injury . . . that’s

caused by events or offenses which happen or are committed

in the [coverage territory]," which includes the United States

and its territories as well as Canada and Puerto Rico. Policy

A at 5. It is undisputed that all of the alleged abuse took place

in Iraq.

Nevertheless, CACI argues that some of the alleged activities took place in the coverage territory because the Saleh

complaint alleges negligent supervision and hiring, and these

10 CACI INT’L v. ST. PAUL FIRE
activities (according to CACI) took place in Virginia, California, and elsewhere in the United States. See Saleh Complaint

¶¶ 274-76. CACI notes that the policies provide coverage for

"events or offenses which happen or are committed [in the

coverage territory]," Policy A at 5, and that the "‘event’ causing the alleged injury [was] CACI’s acts of negligent hiring

and supervision." Brief for Appellants at 43.

This argument fails for two reasons. First, the complaint

does not allege that the negligent supervision took place outside Iraq: it alleges only that CACI "acted negligently and

directly harmed Plaintiffs . . . by failing to take appropriate

steps to supervise those persons performing Interrogation Services." Saleh Complaint ¶ 275. The complaint does not state

from where CACI directed its supervision, and in fact suggests negligence on the part of those directly supervising

ongoing interrogations in Iraq. Therefore, it is not clear that

these allegations on their face implicate events in the coverage territory.

More importantly, however, even assuming that the complaint alleges activities that happened in the United States, the

great weight of case law holds that it is the location of the

injury—not of some precipitating cause—that determines the

location of the event for purposes of insurance coverage. See

Farmers Alliance Mut. Ins. Co. v. Salazar, 77 F.3d 1291,

1296 (10th Cir. 1996) (collecting cases). The reasons for a

"place of the injury" test are clear. As the district court noted,

applying a "cause in fact" test would let plaintiffs sweep any

number of worldwide events into the ambit of a domestic policy as long as the underlying complaint alleged negligent

supervision. CACI Int’l, 567 F. Supp. 2d at 835, n.15. Therefore, a causal test would create a windfall for the insured and

render "the insurer responsible for a liability for which it had

not contracted." Keystone Automated Equip. Co. v. Reliance

Ins. Co., 535 A.2d 648, 652 (Pa. Super. Ct. 1988) (noting that

if the policyholder "had wanted world-wide coverage, it could

have paid a higher premium to obtain it"); see also Hagen

CACI INT’L v. ST. PAUL FIRE 11
Supply Corp. v. Iowa Nat’l Mut. Ins. Co., 331 F.2d 199, 202

(8th Cir. 1964) (same). If domestic policies could be stretched

to this extent, global policies would become superfluous and

territorial coverage limitations would lose their meaning. Cf.

Hagen, 331 F.2d at 202-03.

The cases cited by CACI are not to the contrary. They do

not speak to the location of the event but simply hold that

negligent hiring and supervision can constitute "occurrences"

that give rise to a duty to defend. E.g., S.F. v. W. Am. Ins. Co.,

463 S.E.2d 450, 452-53 (Va. 1995); Hanover Ins. Co. v.

Crocker, 688 A.2d 928, 930-31 (Me. 1997); see also Black’s

Law Dictionary 1109 (8th ed. 2004) (defining "occurrence"

partly as an "event . . . that results in personal injury or property damage"). The courts in S.F. and Hanover did not consider the question before us—namely, the location of an event

for coverage purposes. And most courts that have considered

this question have concluded that "when determining whether

a bodily injury was ‘caused by an occurrence’" the focus

should be "on the injury and its immediately attendant causative circumstances." Farmers Alliance, 77 F.3d at 1296; Dowden v. Sec. Ins. Co. of New Haven, 378 F.2d 46, 48 (5th Cir.

1967); Upper Columbia River Towing Co. v. Md. Cas. Co.,

313 F.2d 702, 705 (9th Cir. 1963); Diamond Shamrock

Chems. Co. v. Aetna Cas. & Sur. Co., 609 A.2d 440, 470 (N.J.

Super. Ct. App. Div. 1992) (collecting cases).

Applying those principles to this case, it is clear that the

alleged injuries and abuses took place in Iraq. The Ibrahim

plaintiffs were held at Abu Ghraib prison, and the Saleh complaint alleges that plaintiffs were abused at Abu Ghraib and

other prisons in Iraq. E.g., Ibrahim Complaint ¶ 38; Saleh

Complaint ¶¶ 2, 4, 11. Because the place of the injury is controlling, we find that the alleged injuries happened outside the

coverage territory.

C.

Next, CACI argues that the alleged abuses may be covered

under the exception to the territorial coverage provision for

12 CACI INT’L v. ST. PAUL FIRE
"injury or damage" that "result[s] from the activities of a person whose home is in the coverage territory, but is away from

there for a short time on [CACI’s] business." Policy A at 5.

Because CACI is arguing that an exception to non-coverage

applies, it bears the burden of proof. E.g., St. Paul Fire &

Marine Ins. Co. v. Warwick Dyeing Corp., 26 F.3d 1195,

1200 (1st Cir. 1994) (collecting cases holding that the insured

must prove that an exception to non-coverage applies). This

rule is consistent with the premise that it is the policyholder’s

burden to prove that the policy covers its loss. See, e.g., Glen

Falls Ins. Co. v. Long, 77 S.E.2d 457, 460 (Va. 1953).

CACI first argues that "short time" is an ambiguous term

that is undefined in the policies and that we should therefore

construe it against a limitation of coverage. But under Virginia law, when words are undefined in an insurance policy,

"as in the case of any other contract, the words used are given

their ordinary and customary meaning when they are susceptible of such construction." Salzi v. Va. Farm Bureau Mut. Ins.

Co., 556 S.E.2d 758, 760 (Va. 2002) (internal quotation omitted). The word "short" has an ordinary everyday meaning: it

means "brief," or "lasting only a short period of time." Webster’s II New College Dictionary 1045 (3d ed. 2005).

And we can further interpret "short time" by considering its

meaning in the context of the policies as a whole. See Res.

Bankshares Corp. v. St. Paul Mercury Ins. Co., 407 F.3d 631,

636 (4th Cir. 2005). Here, the policies each had only a oneyear period of performance; therefore, travel outside the coverage territory for several weeks or more would defy the common understanding of "short time." Rather, the provision most

naturally covers a brief, discrete event such as a several-day

business trip abroad. And it also intends to cover the activities

of a single employee—"the activities of a person . . . [who]

is away from [home] for a short time on [CACI’s] business."

Policy A at 5 (emphasis added).

It is clear therefore that this limited exception cannot

encompass activities of the scope and magnitude of CACI’s

CACI INT’L v. ST. PAUL FIRE 13
operations in Iraq. Looking at the complaints, we note that

they allege a pattern and course of conduct that spanned several years. For example, the Ibrahim complaint alleges that

interrogators took part in an "ongoing, multi-year pattern of

criminal conduct" that led to "millions of dollars in profits

over the course of their multi-year contracts." Ibrahim Complaint ¶ 60. And the Saleh complaint alleges that CACI and

other defendants "described the work in Iraq as a ‘24 x 7’

operation," ¶ 53, while both complaints repeatedly allege an

"ongoing pattern and practice" of illegal acts and abuse. E.g.,

Saleh Complaint ¶¶ 117-18, 134-37; Ibrahim Complaint

¶¶ 30-31, 34-36.

In fact, the complaints make clear that they are alleging a

long-term approach to interrogation that specifically aimed to

extract more information from detainees through repeated torture and humiliation. For example, the Saleh complaint

alleges that CACI sent its employees to Iraq "to set up a

‘Gitmo-style’ prison at Abu Ghraib," where the interrogations

at Guantanamo Bay had been "based on study and review of

what practices would be most humiliating to those who practice the Muslim faith." ¶ 86. According to the complaint,

CACI specifically sought employees with cultural and social

knowledge of the region, and the abuses aimed to "attack[ ]

and ridicul[e] [the detainees’] religious faith of Islam." Saleh

Complaint ¶ 53, ¶ 135. Therefore, the complaints frame the

alleged abuses, including beating detainees and threatening

them with dogs, not as isolated incidents but as part of the

"torture conspirators’" plan to "continually torture[ ] and otherwise mistreat[ ]" detainees "[b]eginning in January 2002

and continuing to present." Id. ¶ 137.

Moreover, the process of interrogation alleged in the underlying complaints is not one that was quickly terminated.

Rather, it relied on interrogators who became more skilled as

time went by and who came to know the detainees—and each

other—more personally. Indeed, the Saleh complaint alleges

that the defendants worked together in a systematic way to

14 CACI INT’L v. ST. PAUL FIRE
use "physical and psychological coercion" to compel detainees to give over information. Id. ¶ 134. The intent of the interrogators, according to the Saleh complaint, was to "creat[e] an

environment" in which continual abuse would "result in more

persons ‘willing’ to provide so-called ‘intelligence.’" Id. ¶ 73.

Interrogation of this kind involves repetitive behavior over

time, or, in the complaint’s words, "a series of acts specifically designed to mentally devastate" the detainees. Id.

¶¶ 134-35. These descriptions make it difficult to infer that

those engaged in such activities were present in Iraq for only

a few days.

Nevertheless, CACI argues that there is some chance that

one or more of its employees involved in the alleged abuses

was in fact in Iraq for just a short time, and that the potentiality rule is so broad that any claim that is "arguably covered"

implicates the duty to defend. Donnelly v. Transp. Ins. Co.,

589 F.2d 761, 767 (4th Cir. 1978). But while there is always

a theoretical possibility that some CACI employee outside the

United States for a short time had some hand in the alleged

abuse, this mere possibility does not rise to the level of potentiality. For example, we held that the insurer in Fuisz v. Selective Insurance Co. of America, 61 F.3d 238 (4th Cir. 1995),

had a duty to defend only because the underlying complaint

specifically alleged conduct that was covered by the policy.

See Fuisz, 61 F.3d at 244-45 (finding that a complaint alleging that the defendant had failed to verify the accuracy of his

statements could be read to allege unintentional conduct not

barred by the policy’s exclusion for intentional harms). But

here, the underlying complaints present no allegations of

abuse resulting from the activities of a CACI employee who

was in Iraq for only a short time. Therefore, CACI’s protestation finds no grounding in the language of the complaints, and

it cannot sustain its burden of proof.

In sum, the potentiality rule does not require us to abandon

the rule of reason. See Ellett Bros., Inc. v. U.S. Fid. & Guar.

Co., 275 F.3d 384, 388 (4th Cir. 2001) (holding that a comCACI INT’L v. ST. PAUL FIRE 15
plaint that sought injunctive relief as well as "such further

relief as [the] court deems just" did not present "a factual allegation supporting a claim for damages"). For while we construe ambiguities in coverage in favor of the policyholder,

there is no such ambiguity here. The term "short time" has a

plain and ordinary meaning, and the complaints allege a systematic pattern of activities lasting months and even years.

Presented with such a stark difference between the policies

and the underlying complaints, we are not permitted to take

such a massive operation and cram it into a short time exception. If we did so, the exception would swallow the policies’

coverage provisions whole, and there would be no reason for

an insured to ever contract for coverage broader than its policy’s narrowest exception.

For the foregoing reasons, the judgment is

AFFIRMED.

SHEDD, Circuit Judge, dissenting:

The majority acknowledges our obligation under Virginia

law to impose a duty to defend when "there is any possibility

that a judgment against the insured will be covered under the

insurance policy." Bohreer v. Erie Ins. Group, 475 F. Supp.

2d 578, 584 (E.D. Va. 2007) (emphasis added). None of the

factual allegations in these complaints forecloses the possibility that one or more CACI employees traveled to Iraq for a

short time and caused covered injuries to the plaintiffs, a scenario covered by the insurance policies’ "short time" exception. In my view, this possibility requires us to reverse the

decision of the district court and remand for further discovery

on other material issues.

16 CACI INT’L v. ST. PAUL FIRE