United States Court of Appeals

for the Fifth Circuit

____________

No. 22-30041

____________

Great Lakes Insurance, S.E., 

Plaintiff—Appellee,

versus

Gray Group Investments, L.L.C., 

Defendant—Appellant.

______________________________

Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:20-CV-2795

______________________________

Before Wiener, Higginson, and Wilson, Circuit Judges.

Cory T. Wilson, Circuit Judge:

Hello, Dolly

Well, hello, Dolly

It’s so nice to have you back where you belong . . . .

1

Great Lakes Insurance, S.E. insured the Hello Dolly VI, a boat owned 

by Gray Group Investments, L.L.C. The Hello Dolly sank in Pensacola, 

_____________________

1 From the Musical Production “Hello Dolly!” Music and lyrics by Jerry 

Herman, copyright 1963. 

United States Court of Appeals

Fifth Circuit

FILED

August 1, 2023

Lyle W. Cayce

Clerk

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Florida, during a hurricane. Gray Group filed a claim under the insurance 

policy, Great Lakes denied coverage, and Great Lakes then sought a 

declaratory judgment that it properly did so. Ironically, the question largely 

turned on whether, contra her musical namesake, the Hello Dolly was “back 

where [she] belong[ed],” for purposes of coverage. The district court agreed 

with Great Lakes that she was not. We affirm.

I.

A.

Hurricane Sally struck the Gulf Coast in September 2020. In its path 

lay the Hello Dolly VI (hereafter, the Vessel), which was moored behind Gray 

Group’s eponymous member Michael Gray’s house in Pensacola. The 

Vessel sustained damage during the storm and sank at its mooring. The 

Vessel was insured under an insurance policy issued by Great Lakes. Great 

Lakes also insured several other watercraft within Gray Group’s fleet under 

similar policies. Though the operative policy provided coverage for “named 

windstorms,” Great Lakes denied coverage, asserting that Gray Group had 

breached several warranties. 

Specifically, Great Lakes faulted Gray Group for breaching the 

“hurricane protection plan” (the HPP) that Gray Group had submitted in 

response to Great Lakes’s “hurricane questionnaire” (the HQ). The HQ 

requested the Vessel’s location during hurricane season and asked a series of 

questions regarding Gray Group’s contingency plans in the event of a 

hurricane. In the HPP, Gray Group stated that the Vessel would be located

at the Orleans Marina in New Orleans, Louisiana, and detailed the protective 

measures Gray Group would take when a hurricane approached. 

The parties contest whether the HPP was incorporated by reference 

into the insurance policy, and, if so, whether Gray Group breached the HPP. 

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Before laying anchor there, we briefly chart the policy’s incorporation clauses 

and the underlying documents at issue.

There are two incorporation clauses in the insurance policy. The first

provides that “[t]his insuring agreement incorporates in full [Gray Group’s]

application for insurance[.]” The second states that “[t]his is a legally 

binding insurance document between [Gray Group] and [Great Lakes], 

incorporating in full the application form signed by [Gray Group].” 

Gray Group submitted various documentation to facilitate

underwriting for the policy at issue. Three such documents are particularly 

relevant: the “Application Form,” the HQ, and the HPP. In the Application 

Form, Gray Group represented that the “primary mooring location of [the]

Vessel . . . between July 1st [and] Nov[.] 1st” would be the Orleans Marina. In 

the HPP, Gray Group again named the Orleans Marina in response to the 

HQ’s request for the “marina or residence where [the] [V]essel [would be]

located between 1st July and 1st November[.]” Whether the policy’s 

incorporating clauses encompass these underwriting documents determines

the seaworthiness of Gray Group’s appeal. 

B.

After denying coverage, Great Lakes sought a declaratory judgment 

that Gray Group breached the HPP by failing to evacuate the Hello Dolly VI 

to safe harbor, keep the Vessel fully manned, deploy the anchor, and moor 

the Vessel at the Orleans Marina. Gray Group countersued, contending that 

the HPP was not incorporated into the policy, and in any event, that Gray 

Group did not breach the HPP. 

Gray Group moved for judgment on the pleadings. The district court 

denied the motion, holding that the phrase “application for insurance” was 

ambiguous because it could refer solely to the Application Form, or to a 

broader set of documents inclusive of the HQ and the HPP. Therefore, the 

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district court found that evidence outside the pleadings was necessary to 

determine the meaning of “application for insurance.”

The parties then filed cross-motions for summary judgment. Great 

Lakes contended, inter alia, that regardless of whether the HPP was 

incorporated, the Application Form certainly was, and Gray Group 

misrepresented facts in the Application Form. Gray Group filed a motion to 

strike that argument. The district court granted Gray Group’s motion 

because “Great Lakes did not allege any misrepresentation by Gray Group in 

its complaint.” 

However, the district court agreed with Great Lakes on its other 

points and granted it summary judgment. Specifically, the district court held 

that the phrase “application for insurance” was ambiguous but that extrinsic 

evidence showed that the parties intended “application for insurance” to 

encompass the HPP. Continuing the analysis, the court concluded that Gray 

Group’s statement in the HPP that the Vessel was to be located at the 

Orleans Marina during hurricane season was also ambiguous. Again 

resorting to extrinsic evidence, the court found that the HPP meant that the 

Vessel would be moored at the Orleans Marina for the majority of hurricane 

season. The court determined that the HPP’s “marina or residence” 

location constituted a warranty by Gray Group and found that the Vessel had 

not in fact been moored at the Orleans Marina for the majority of hurricane 

season. Gray Group had thus breached its warranty, justifying Great Lakes’s 

denial of coverage. 

Gray Group timely appealed, challenging the district court’s denial of 

its motion for judgment on the pleadings as well as the court’s summary 

judgment for Great Lakes. 

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II.

We review a district court’s ruling on a motion for judgment on the 

pleadings de novo. Edionwe v. Bailey, 860 F.3d 287, 291 (5th Cir. 2017). We 

apply the same standard to a district court’s grant of summary judgment. 

Springboards to Educ., Inc. v. McAllen Indep. Sch. Dist., 62 F.4th 174, 178 (5th 

Cir. 2023). Under New York law,2 we review a district court’s interpretation 

of an insurance policy de novo. High Point Design, LLC v. LM Ins. Corp., 911 

F.3d 89, 93 (2d Cir. 2018) (applying New York law).

A. 

Gray Group’s position is straightforward. It urges that “application 

for insurance” is unambiguous—the clause refers only to the Application 

Form—and Great Lakes did not plead a breach of the Application Form. 

Thus, no need for extrinsic evidence, and the district court’s analysis and 

judgment run aground. Alternatively, Gray Group posits that if “application 

for insurance” is ambiguous, then the clause is insufficient to incorporate an 

external document as a matter of law due to that ambiguity. 

Great Lakes takes a different tack, contending that Gray Group’s 

responses to the HQ, through the HPP, were incorporated into the insurance 

policy through the “application for insurance.” Per Great Lakes, 

“application for insurance” is ambiguous, but uncontroverted extrinsic 

evidence establishes that the parties intended the term to include the HPP.

So we must first consider (1) whether the term “application for 

insurance” is ambiguous, and, if so, (2) whether that ambiguity precludes 

incorporating by reference Gray Group’s responses to the HQ via its HPP.

_____________________

2 The parties agree that New York law applies in this case. 

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1.

Under New York law, “an insurance contract is interpreted to give 

effect to the intent of the parties as expressed in the clear language of the 

contract.” Parks Real Estate Purchasing Group v. St. Paul Fire & Marine Ins. 

Co., 472 F.3d 33, 42 (2d Cir. 2006) (citation and quotation marks omitted). 

Whether an insurance contract is ambiguous is a question of law. Id. A 

contract is ambiguous when its terms “could suggest more than one meaning 

when viewed objectively by a reasonably intelligent person who has examined 

the context of the entire integrated agreement and who is cognizant of the 

customs, practices, usages and terminology as generally understood in the 

particular trade or business.” Id. (citation and quotation marks omitted). 

The Great Lakes insurance policy at issue “incorporat[es] in full the 

application form signed by [Gray Group].” The policy also “incorporates in 

full [Gray Group’s] application for insurance[.]” Gray Group contends that 

both phrases refer to the same thing: the Application Form. Great Lakes 

counters that the phrase “application for insurance” plausibly includes more 

than just the Application Form—like, say, the documents Gray Group 

submitted during underwriting (including the HPP)—such that the policy’s 

language is ambiguous.

We agree that the phrase “application for insurance” is ambiguous. 

The Application Form is clearly labeled as such, so the corresponding policy 

reference seems clear. But the “full” “application for insurance,” slightly 

different nomenclature, implies a broader set of documents, including the 

Application Form and those Gray Group submitted during underwriting. 

The difference in verbiage is critical because under principles of contract 

interpretation, “[a] word or phrase is presumed to bear the same meaning 

throughout a text; a material variation in terms suggests a variation in 

meaning.” Landry’s, Inc. v. Ins. Co. of the State of Pennsylvania, 4 F.4th 366, 

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370 (5th Cir. 2021) (quoting Antonin Scalia & Bryan Garner, 

Reading Law 170 (2012)); see also Two Farms Inc. v. Greenwich Ins. Co., 

628 Fed. App’x 802, 805 (2d Cir. 2015) (applying New York rule that “a 

word used by the parties in one sense will be given the same meaning 

throughout the contract in the absence of countervailing reasons”) (citation 

and quotation marks omitted)). Because “application for insurance” “could 

suggest more than one meaning” to a “reasonably intelligent person,” Parks 

Real Estate, 472 F.3d at 42, the term is ambiguous. So, we sail on to 

determine the effect of that ambiguity.

2.

The parties’ disagreement as to the effect of the ambiguity is premised 

on competing understandings of New York’s incorporation by reference 

doctrine. Gray Group posits that an incorporating clause must clearly 

identify an incorporated document; therefore, if the clause is unclear, it 

cannot effectuate a valid incorporation by reference. Essentially, Gray Group 

contends that if there is any ambiguity in what is incorporated, then the 

document in question is not. Great Lakes counters that the meaning of an 

ambiguous incorporating clause can be determined by extrinsic evidence, as 

with any other contractual provision. Therefore, a finding of ambiguity does 

not foreclose incorporation by reference—it merely shifts the issue to the 

factfinder. We agree with Great Lakes.

The Court of Appeals of New York has long recognized the concept 

of incorporation by reference. See In re Bd. of Comm’rs of Washington Park, 

52 N.Y. 131, 134 (1873); see also Tonnele v. Hall, 4 N.Y. 140 (1850). Under 

New York law, a document is incorporated into a contract if “(1) it is clearly 

identified in the agreement, and (2) the contract contains language that 

clearly communicates that the purpose of the reference is to incorporate the

referenced material into the contract, rather than merely to acknowledge that 

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the referenced material is relevant to the contract.” Matter of Linn Energy, 

L.L.C., 927 F.3d 350, 353 (5th Cir. 2019) (citation and quotation marks 

omitted) (“New York courts use an objective standard, asking whether a 

reasonable person would understand the specific document to be 

incorporated by reference.”). “[T]he paper to be incorporated into a written 

instrument by reference must be so referred to and described in the 

instrument that the paper may be identified beyond all reasonable doubt.” 

PaineWebber Inc. v. Bybyk, 81 F.3d 1193, 1201 (2d Cir. 1996) (emphasis 

omitted)(quoting Chiacchia v. Nat’l Westminster Bank USA, 124 A.D.2d 626, 

628 (N.Y. App. Div. 1986)). “[I]t must be clear that the parties to the 

agreement had knowledge of and assented to the incorporated terms.” Id. 

(citation and quotation marks omitted). The doctrine “is grounded on the 

premise that the material to be incorporated is so well known to the 

contracting parties that a mere reference to it is sufficient.” Chiacchia, 124 

A.D. 2d at 628; see also Orlander v. Staples, Inc., 802 F.3d 289, 295 n.6 (2d 

Cir. 2015).

For nearly as long as New York has recognized incorporation by 

reference, its Court of Appeals has allowed “[p]arol evidence . . . to prove 

the identity of the paper [that the parties attempted to incorporate].” Bd. of 

Comm’rs of Washington Park, 52 N.Y. at 134. New York courts have held 

that, generally, an ambiguity as to the identity of the incorporated document

creates a fact issue. See, e.g., Maines Paper & Food Serv., Inc. v. Keystone Assoc., 

134 A.D. 3d 1340, 1342 (N.Y. App. Div. 2015) (weighing the evidence to 

determine whether the purportedly incorporated document was sufficiently 

identified in the executed contract); Kenner v. Avis Rent A Car Sys., Inc., 254 

A.D.2d 704, 704 (N.Y. App. Div. 1998) (holding that “[t]here is a triable 

issue of fact whether the oblique reference in the rental agreement to an 

otherwise unidentified ‘rental document jacket’ meets th[e] exacting 

standard [of incorporation by reference]”); Chiacchia, 124 A.D. 2d at 628 

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(“Whether the paper encompassing the bank rules was referred to or 

described in the rental agreement such that it could be identified beyond all 

reasonable doubt constitutes a question of fact precluding summary 

judgment.”). But “[i]f the extrinsic evidence is ‘so one-sided that no 

reasonable person could decide the contrary,’ the court may resolve the 

ambiguity as a matter of law.” Jefferson Block 24 Oil & Gas, L.L.C. v. Aspen 

Ins. UK Ltd., 652 F.3d 584, 589 (5th Cir. 2011) (citation omitted) (applying 

New York law). 

Gray Group relies on Linn Energy for the proposition that if a 

purportedly incorporated document is not “clearly identified in the 

agreement,” 927 F.3d at 353, i.e., if the incorporating clause is unclear, then 

there is no valid incorporation. True, “the paper to be incorporated . . . by 

reference must be . . . identified beyond all reasonable doubt.” PaineWebber, 

81 F.3d at 1201 (quoting Chiacchi, 124 A.D. at 628). But that does not alter 

the general rule that a court may examine extrinsic evidence to ascertain the 

meaning of an ambiguous contract. See Int’l Multifoods Corp. v. Commercial 

Union Ins. Co., 309 F.3d 76, 83 (2d Cir. 2002) (“If an ambiguity is found, the 

court may accept any available extrinsic evidence to ascertain the meaning 

intended by the parties during the formation of the contract.” (cleaned up)) 

(applying New York law). Consistent with the New York cases discussed 

earlier, the general rule about consulting extrinsic evidence is as shipshape 

when ascertaining the meaning of an ambiguous incorporating clause as it is 

in any other context. 

B.

Having surveyed the waterfront, we may cruise through the remaining 

issues on appeal. Gray Group urges that the district court erred by 

(1) denying its motion for judgment on the pleadings; (2) finding that the 

HPP was incorporated into the policy; and (3) concluding that the Vessel’s 

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“marina or residence” location provided by Gray Group in the HPP was a 

warranty that required the Vessel to moor at the Orleans Marina for the 

majority of hurricane season.

1. 

We affirm the district court’s denial of Gray Group’s motion for 

judgment on the pleadings.3 “We evaluate a motion under Rule 12(c) for 

judgment on the pleadings using the same standard as a motion to dismiss 

under Rule 12(b)(6) for failure to state a claim.” Gentilello v. Rege, 627 F.3d

540, 543–44 (5th Cir 2010). We thus must determine “whether, in the light 

most favorable to the plaintiff, the complaint states a valid claim for relief.” 

Id. (citation and quotation marks omitted). As discussed above, the policy 

language at issue is ambiguous. While that is not dispositive as to whether 

the underwriting documents in question were validly incorporated by 

reference, it does mean that the scope of the policy’s incorporating language

turns on extrinsic evidence beyond the scope of the pleadings. Accordingly, 

the district court did not err in denying Gray Group’s Rule 12(c) motion. 

2.

Next, we consider whether Gray Group’s HPP, with its 

representation that the Vessel’s “marina or residence” location during 

_____________________

3 Great Lakes argues that Gray Group failed to preserve its incorporation by 

reference argument in the district court. It is axiomatic that “[w]e will generally not 

countenance arguments not raised before the district court,” McManaway v. KBR, Inc., 852 

F.3d 444, 455 (5th Cir. 2017), but Gray Group adequately raised the argument. Gray Group 

urged in its motion for judgment on the pleadings that “[t]he policy does not incorporate, 

attach, reference or ever mention the [HQ or the HPP],” and the district court noted that 

the incorporation argument was before it: “[Gray Group] moved for judgment on the 

pleadings under Federal Rule of Civil Procedure 12(c), arguing that the pleadings establish 

that the [HQ/HPP] was not a warranty because the agreement does not incorporate 

it . . . .” 

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hurricane season was the Orleans Marina, was included in the policy’s 

ambiguous incorporation of Gray Group’s “application for insurance.” To 

remind, the full clause reads: “This insuring agreement incorporates in full 

[Gray Group’s] application for insurance[.]” Under New York law, the 

burden rests on the insurer to prove that its interpretation of an ambiguous 

policy provision is correct. Jefferson Block 24 Oil & Gas, 652 F.3d at 589. 

“[T]he court may accept any available extrinsic evidence to ascertain the 

meaning intended by the parties during the formation of the contract [and]

may resolve the ambiguity as a matter of law” “[if] the extrinsic evidence is

so one-sided that no reasonable person could decide the contrary[.]” Id.

(quotation marks and citation omitted).

The district court did not err in concluding that the HPP was 

incorporated into the policy. For starters, under a bolded header labeled 

“WARNING,” the HQ, which prompted Gray Group’s submission of the 

HPP, advised that “this declaration and warranty shall be incorporated in its 

entirety into any relevant policy of insurance.” Gray Group’s Fleet Risk 

Manager, Louis S. Crew, Jr., signed the HQ directly beneath that warning. 

The parties’ prior course of dealing removes any lingering doubt that 

Gray Group’s “application for insurance” encompassed the HPP. In 2017, 

Great Lakes’s underwriter notified Gray Group that another policy4then in 

force would expire in 15 days if Gray Group did not provide additional 

requested documentation, including a hurricane protection plan as to the 

insured watercraft. The underwriter followed up eight days later to remind 

Gray Group that the document remained outstanding and that failure to send 

it would void coverage. This exchange repeated itself in 2019, when Great 

_____________________

4 This policy covered a different boat owned by Gray Group, but it is undisputed 

that Gray Group’s other vessels were insured under policies materially identical to the one

at issue here.

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Lakes reminded Gray Group’s broker that the requested hurricane 

protection plan “forms part of the policy.” Additionally, Gray Group’s 

Crew testified in his deposition that he “underst[oo]d that it [(the HPP)] 

would be incorporated into the policy.” 

Against this backdrop, the district court did not err in holding that the 

extrinsic evidence was “so one-sided that no reasonable person could 

decide” that the HPP was not incorporated into the policy. As it was 

properly incorporated, our next port-of-call is the interpretation of the HPP, 

and specifically the HPP’s representation regarding the Vessel’s “marina or 

residence” during hurricane season.

3. 

In the HPP, Gray Group stated that the Orleans Marina was “the 

marina or residence where [the] [V]essel [would be] located between 1st July 

and 1st November.” The district court concluded that this statement is 

ambiguous.

5 The court then relied on several email exchanges between the 

parties to ascertain its meaning. In 2019, Great Lakes’s broker asked Gray 

Group’s agent whether one of Gray Group’s boats would be in the Bahamas 

or Florida during hurricane season and explained that the information was 

important because if so, the premium would increase to account for the 

greater risk. Later in 2020, Gray Group’s agent contacted Great Lakes’s

agent to ask if the same boat could travel to Florida and the Bahamas once 

hurricane season began. Great Lakes’s agent responded:

[The] application form showed that the[] mooring location 

during July to November would be Mississippi[,] and [the 

underwriters] rated the risks as such. If [a boat] change[d its]

_____________________

5 We discern no error in the district court’s determination that the HPP’s 

representation as to where the Vessel would be located is ambiguous. And Gray Group 

does not contend otherwise.

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mooring location to [the] Bahamas for the majority of hurricane 

season[,] then this must be re-rated. We rate on the 

assumption of where the vessel will be for the majority of the 

season.

The agent also stated that “[i]f [the boat] will spend the majority of that 

season in Mississippi[,] then the premium can stay the same[.]” In 2020, 

Great Lakes’s underwriter again noted that “to amend the mooring location 

during the hurricane season” may require a premium increase. 

Considering this evidence, the district court concluded that the 

HPP’s representation regarding the Vessel’s “marina or residence” location 

meant “the place where the [V]essel [was] to be moored the majority of 

hurricane season.” We agree with the district court that the evidence 

establishes that the parties’ contractual intent was that the Vessel be moored 

at the Orleans Marina for, if not the majority, at least some portion of

hurricane season. We acknowledge that the email exchanges regarding the 

“mooring location” pertain to the Application Form, which requested the 

“primary mooring location” of the Vessel, and not the HQ or the HPP, 

which adduced “the marina or residence” where the Vessel would be 

“located” during hurricane season. Nevertheless, we conclude that the 

evidence also crystallizes the meaning of the HPP’s representation about 

where the Vessel would be “located.”

First, both the Application Form’s request and the HPP substantively 

center on the Vessel’s location during hurricane season. Whatever the 

distinctions between the “primary mooring location” and the “marina or 

residence” where the Vessel would be “located” during the season, Gray 

Group listed the Orleans Marina in response to both. At bottom, the extrinsic 

communications between the parties illuminate the parties’ intent as to both 

the Application Form and the HPP: Great Lakes requested that Gray Group 

provide the marina where the Vessel would be located for the same reason it 

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requested its primary mooring location, viz., because the insurer rated its 

policy premium “on the assumption of where the [V]essel [would] be for the 

majority of the season.” Cf. Chesapeake Energy Corp. v. Bank of New York 

Mellon Tr. Co., N.A., 773 F.3d 110, 116 (2d Cir. 2014) (rejecting proposed 

interpretation where “it cause[d] the word to carry different meanings in 

different iterations within the same contractual provision, indeed within the 

same sentence”). 

Inversely, Gray Group proffers no evidence to suggest a different 

interpretation of the HPP’s representation. This dearth of proof to the 

contrary only buttresses the district court’s interpretation of the HPP’s 

language. See Jefferson Block 24 Oil & Gas, 652 F.3d at 589; see also Fed. R. 

Civ. P. 56(c)(1)(A).

Finally, and logically, the HPP’s representation about the “marina or 

residence” where the Vessel would be “located” must mean something. 

Whether the provision means that the Vessel was to be located at the Orleans 

Marina “the majority of hurricane season,” or for some lesser period, or for 

only intermittent docking, it is undisputed that the Vessel was never at the 

Orleans Marina during the 2020 hurricane season. Thus, regardless of the 

precise requirement that the HPP imposed, Gray Group did not meet it. All 

that remains is to determine the effect of that lapse.

4. 

The district court concluded that the HPP’s representation regarding 

the Vessel’s “marina or residence” location was a warranty such that Gray 

Group’s breach of it voided the policy both under New York law and the 

terms of the policy. We consider only the latter justification and easily 

conclude that the district court did not err in its analysis.

The policy provides that:

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Where any term herein is referred to as a ‘warranty’ or where

any reference is made herein to the term ‘warranted,’ the term 

shall be deemed a warranty and regardless of whether the same 

expressly provides that any breach will void this insuring 

agreement from inception, it is hereby agreed that any such 

breach will void this policy from inception.

The HPP expressly identifies its contents, including the information in 

question, as warranties, providing that the insured “declare[s] that the 

particulars and answers in this form are correct and complete in every 

respect,” and that “this declaration and warranty shall be incorporated in its 

entirety into any relevant policy of insurance.” Therefore, under the terms 

of the policy, as validly augmented by the HPP, Gray Group warranted that 

the Vessel would be “located” at the Orleans Marina during hurricane 

season. Gray Group’s breach of that warranty voided the policy ab initio, 

such that Great Lakes properly denied coverage. 

III.

The Hello Dolly VI never got “back where [she] belong[ed].” Gray 

Group’s representations to the contrary were validly incorporated into the 

policy as warranties, and Gray Group’s breach of its warranties justified 

Great Lakes’s denial of coverage when the Hello Dolly sank. Accordingly, 

the district court properly granted summary judgment for Great Lakes.

AFFIRMED.

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