Reidy Contracting Group, LLC v. Mt. Hawley Insurance Company - Insurance Coverage Dispute

1 24 - 1069 Reidy Co ntract ing Gr oup, L LC v. Mt. Ha wley I nsuranc e Co mp any UNITED STATE S COURT OF APP EALS FOR THE SECOND CIRCUIT August Ter m 20 24 (Argued: February 21, 2025 Decided: February 1 2, 2026) No. 24-1069 –––––––––––––––––– –––––––––––––– –––– R EIDY C ONTR ACTI NG G ROU P, LLC; M ERCHA NTS M UTUAL I NSURANCE C OMPANY, Plaintiffs-Appellees, -v.- M T. H AWL EY I NSURANCE C OMPANY, Defendant-Appellant. –––––––––––––––––– –––––––––––––– –––– Before: L IVINGSTON, Chief Judge, M ENASHI, and M ERRIAM, Circuit Judges. Defendant- Appe llant Mt. Hawley Insurance Co mpany appeals a f inal judgment enter ed on March 29, 2024, by the United Sta tes District Court for the Western District of New Yor k (Crawfor d, J.), denying its motion for s ummary judgment and granti ng Plain tiffs - Appe lle es Reidy Contracting Group, L LC and Merchants Mutual Insurance Company summary judgment. On appeal, Mt. Hawley argu es that the district court erred in hold ing that Reidy was an add itional insured and that the Employers Liability Exclusion did not bar coverage. We disagre e. We hold that Reidy is an ad dit ional in sure d and that, becaus e the Exclusio n is ambiguous, we must cons true i t against the drafter, Mt. Hawley, in

2 accordance with contra proferentem. We therefore AFFIRM the judgmen t of the district c ourt. J UDGE M E NASH I dissents in a separate opinion. F OR P LAINTIFF S -A PPELLE E S: R ICHARD A. G ALBO (Ash lyn M. C apote, on the brief), Goldber g Segalla LLP, Buffalo, N Y. F O R D EFENDANT -A PPELL ANT: T IMOTH Y E. D ELAHU NT, Delahunt Law PL LC, Buffalo, NY. D EBRA A NN L I VINGSTON, Chief Judge: A ceiling collapsed at a cons truction s ite, injuring three workers. This insurance d ispu te ensued. T he question presented i s whether Mt. Hawley Insurance Company (“Mt. Hawley”), w hich is sued an ex ces s liabi lity p olicy to Vanquish Contr acting Corpor ation (“Van quish”), the s ubcontractor, is required to provide ad dition al in sur ance coverage to the gene ral contractor on the s ite, Re idy Contracting Group, LL C (“Reidy”). Th e United St ates District Cou rt for the Western Distr ict of New York (Crawfor d, J.) sa id yes, and granted s ummary judgmen t to R eidy and its co mmer cia l gen eral l iabi lity insurer, Merc hants Mutual Insurance Company (“Merchants”). Mt. Hawley now appea ls, contending that Reidy is not an addit ional insured under it s policy and tha t its Emplo yer s Li abilit y Exclusion bars coverage. We d isagree, and affirm the jud gment o f the dis trict court.

3 BACKGROUND I. Factual Background 1 Reidy was the gener al contractor for a demolit ion project at 1 60 Lexington Ave nue, New York. In 2012, Reidy hired Vanquish as a su bcontractor. As a condition of this arrangement, Reidy required Van quish to procure in surance that would protect Rei dy as an addit iona l ins ure d from claims ar ising, inter alia, “ out of or in a ny way connected wit h the operation s performed hereunder b y or on behalf of [Vanqu ish] .. . w ithout regard to the negligence of any of the m or any . . . other subcon tractor.” A-3 13. 2 Consistent with this agreement, Vanqu ish entered i nto an ex cess liability contract with Mt. Hawley in which Vanquish is the named ins ured and the word “insured” is otherwi se defined as “any person or or ganization qualifying as an insured u nder the terms of the underlyi ng insurance. ” 3 A-754. T his policy is in excess to Vanq uish’s c ommercial g eneral l iab ilit y co verage with Endurance 1 The factual background presented here is based o n undisputed f acts fr om the parties’ submis sions at summary jud gment. 2 Citations to the Appendix are indicated usi ng the prefix “A.” 3 The named insured is t he party who pur chases the insurance at hand. Under “ordinary inter pretation of an ordinary business contract,” the additional insure d party is anyone o ther tha n the named insured who i s protected by the pol icy. Kerrigan v. RM Assocs., Inc., 892 N.Y.S.2d 350, 351–52 (App. Div. 2009).

4 American Specialty Insurance Co mpan y (“En durance”). a. The Insurance P olicy The M t. Hawle y p olicy pro vides that “except where provisions to the contrary a ppear herein, ” it “ is subject to all of the conditions, agreements, exclu sions, and lim ita tions of a nd sh all follo w t he und erlying insurance in all respects.” A-754. We t herefore treat the unde rlyin g ins ura nce po licy — th e Endurance policy —as being subsumed in the Mt. Hawle y policy. Three provisions are par ticularl y r elevant to this appeal: 1) the “Cov erage G rant” in the Endurance policy, which sets out the policy’s general scope of protection; 2) the “ Employers Liabilit y Exclusion ” in the Mt. Hawle y poli cy, which details conditions under wh ich covered entities will be denied coverage; and 3) th e “Separation of Ins ureds Clause” in the Mt. Hawley policy, wh ic h exp lains how to interpret the policy. 1. Coverage Gran t The Mt. Hawley policy defines an insured as “any person or organization quali fying as an insured person und er the terms of the underlying insu rance.” A- 754. The underl ying Endurance policy, in turn, provides t hat “ [t] he follo win g are included as ad ditional insureds”:

5 Any entity required by written contract. . . to be named as an insured is a n insured but only with respect to liability arising out of [Vanquis h’s] premises, "[Vanquish’s] work" for the ad ditional insured, or ac ts or omissions of the additional insured, in connection with their gen eral supervision o f "[Vanquish’s] work" to the extent s et forth b elo w. A-833. 4 2. Employers Liability Exclusion In t he Mt. Haw ley po licy, the E mp loyer s Lia bili ty E xclusion establishes that 4 The Limitations Clause in the Enduranc e policy provides further that th e insuran ce does not a pply to: a) "Bodily injury" o r " pro perty dama ge" oc currin g after: 1) All work on th e proj ect (oth er than se rvice main tenanc e or repairs) to be p erformed b y or on behal f of the additi onal ins ured(s) at the site of the covered operations has been completed; or 2) That p ortion of "[Van quis h’s] work" out of whic h the injury or damag e arises has been put to its intended use b y any person or organizati on other than another contrac tor or su bcontra ctor enga ged in performing operations for a principal as a part of the sam e project. b) "Bodily injury" or "proper ty damage" arising o ut of any act, omission or neg ligence of the additional insured(s) or any of th eir "emp loye es" or " tempo rary wo rkers", other than th e general s upervi sion of work pe rforme d for the additional insured(s) b y [Vanq uish]. A-833–34.

6 the policy will n ot cove r bodily injuries su ffered by: 1. An "employee" of any insured arising out of and in the course of: a. Employment by the insured, or b. Performing du ties related to the conduct of the insu red ’ s business; or 2. The spouse, child, parent, brother or s ister of that "employee" as a c onsequen ce of paragraph 1. ab ove. A- 771. 3. Separation of Insu reds Clause The Separation of Insure ds Cla use instr ucts that “[e]xce pt w ith respect to the l imits o f l iabili ty, ” the Mt. Ha wley policy “app lies as if eac h Name d Ins ured were the onl y Named Insure d and separately to each insured against whom claim is made or suit is brought.” A-760. b. The Accident and C overage On January 8, 2013, Vanqu ish ’s employees were performing hand demolition on the interior wal ls of 160 L exington Ave nue. No employees from other companies we re working that da y. S uddenly, a por tion of a decorat ive plaste r cei lin g colla ps ed, takin g down a scaffold an d three Vanq uish employees. Each employee sued Reidy and the buildin g owner for thei r injuries. Accordingly, Reidy requested that End urance and Mt. Ha wley undertake its

7 defense and inde mnification. Mt. Hawley refused, citing specif ically to t he Emp loye rs Lia bili ty Exc lusio n for bodily injuries s uffered b y: 1. An ‘employee ’ of any insured arising out of an d in the cour se of: a. Employment b y the insured . . . . A-533. Mt. Hawley explained that it re ad s the pol icy ex clu sion ’s di scussion of “empl oymen t by the insured” to refer to the antecedent “ any insured.” See A-533 (emphasis adde d). He re, it reasoned, the three injured workers were employ ees of “any insured” (Va nquis h). Id. Because the work ers were injured in the course of “ employ ment by the insure d ”— again, Vanq uish — the Employers Liability Exclusion, Mt. Hawley asserted, “ bars coverage for Reidy. . . as [an] additional insured[] on the Mt. Haw ley policy.” Id. Reidy insis ted tha t Mt. Hawle y’s interpretati on is incorrect and th at Mt. Hawley w ithdr aw its d isc laimer. Reidy maintained t hat t he Separation of Insureds clause, which instructs that the policy “applies as if each Named Insured were the on ly Named Insured and sep arately as to each i nsured again st whom claim is made or su it is brough t,” require s that “ the exclusions in the policy ” be read “ as if Reidy is the only ins ured.” A -548-4 9. Add itionally, Reidy asser ted

8 that “ [t] h is [reading ] is the way in which employer ’ s liab ilit y exc lus ions ar e interpret ed in New York. ” Id. at 549. Therefore, it arg ued, “employment by the insured” in the Emplo yer s Liab ilit y Ex clusi on refer s to th e entity seeki ng coverage— Reidy. Although t he workers were employe es of any insured (Vanquish), the injur ies did not arise out of the workers’ employ ment by Reidy, the party seeking coverage. Thus, the Emp loyers Liability Exc lus ion is inapp licab le. Mt. Hawley ref used to wi thdraw its discl aimer. II. Procedural History In April 2020, Reidy and Merchants s ued Mt. Ha wley, seeking a declarat ory judgmen t stati ng, inter alia, t hat Mt. H awley is re quired to provide Reidy wi th coverage and Mt. Hawley’s r efusal to do so is a br each of its po licy. Mt. Haw ley moved for summary judgmen t, contend ing th at its in terpre tation of the Employers Liability Clause bar s coverage to Re idy. In the al ternative, it argued — for the first time — tha t Re idy is not an add itional insured. Mt. Hawley contended that the phrase “ in connection with [Re idy ’s ] general supervision of ‘[Vanquish’s] work ’” in the Endurance po licy’s coverage gran t mod ifie s the preceding list of cover ed injur ies — th at is, li abilit y arising out of Va nquish’s premises, V anquish’s work for

9 Reidy, and Reid y’s acts and omission s. A-833. Because the underlying suit s by Vanquish’s emp loyees asse rted neg ligenc e by Re idy outside of it s general supervi sion of Vanquish, Mt. Hawley claimed, Re idy is not an additional insured a s to these claims. Reidy and Merchants cross- moved for summary judgmen t. Fir st, Re idy insist ed that “the insured” in the Emplo yers Liability Exclusion re fer s to Reidy. Second, Reidy argue d that Mt. Hawle y’s challen ge to Reidy’s sta tus as an additional insured is precluded by New York Insurance Law Section 3420(d). Th is la w requires an insurance company to “disclaim liability or deny coverage for death or bodily injury” via written no tice “as soon as is reasonably possible.” N.Y. Ins. Law § 342 0(d)(2). Mt. Haw ley’s in itia l disc laime r of cove rage o nly referenced the Employers Li ability Exc lusion and d id no t contest Rei dy’s status as an add itio nal in sure d. Therefore, Reidy argued, it could no t raise the argu ment now, nearly a decade later. The distric t court granted summary judgment to Reidy. Fir st, it concluded that the Emp loyers Liab ili ty Exclusion d o es not apply. Bas ed on the Separ ation of Insureds Clause, t he district court interpreted “ the i nsured” to refer to Reidy, the insu red seeking covera ge. A-1148. “Since Reidy di d not employ the three

10 injured workers,” the district court concl uded, the exclusion d oes not apply. A- 1149–50. In the al ternative, the distr ict court found the E mploy ers L iabili ty Exclusion ambiguou s and interpreted i t against Mt. Hawley, t he drafter. Second, t he distr ict cour t held that Mt. Ha wley is precluded from arg uing that Reidy is not an additional insure d pursuant to S ection 3420(d). 5 I t also rejected Mt. Hawley ’s interpretation of the Coverage Grant. T he “plain l anguage” of the Coverage Grant, the d istr ict court d eter mined, lists each kind of cove red lia bilit y in th e alternative, and thus inc lude s liab ilit ies ar ising out of Vanq uish’s premises, its work for Re idy, or Reidy’s ac ts or omissi ons in connection wi th its s uperv ision of Vanquish. Accordi ngly, the quest ion of coverage for an accident re sulting in injury to Vanq uish’s empl oyees while engaged in work for Re idy does not “depend on any inq uiry into [Reidy’s] ‘general supervision’” of suc h work. A- 2005. 6 This ap pea l foll owe d. DISCUSSION 5 The district court r eached this conclusion in a second supplement al order, after requesting addit ional briefing on the topic of additiona l insurance coverage. It thereaf ter gra nted judgm ent to Re idy a nd M ercha nts. Hawley a ppeal s both s umm ary judgm ent ord ers and the final judgment i n the case. 6 By the time the distr ict court re ached this conclusion, Reidy ha d settled the underlying suits with t he three workers. This dispute nonetheless remai ns a live

11 I. Standard of Review This Court review s de novo a district co urt’s grant of summar y judgment. Hayes v. Dahlke, 976 F.3d 259, 267 (2d Cir. 2020). Su mmary judgment sh ould be granted “if the movant shows that the re is no genuine disp ute as to any material fact and the movant is entitled to judgm ent as a matter of law.” Fed. R. Civ. P. 56(a). The Cour t must “view the e vidence in the light m ost favorable to th e party opposing su mmary judgmen t” and “draw all reasonab le inferences in favor of that party.” Wey ant v. Okst, 101 F. 3d 845, 854 (2d Cir. 1996). Where, as here, both parties move d for summary ju dgment, we ex am ine “each party’s motion . . . on its ow n merits” and draw “all reasonable infere nces. . . aga inst the party whose m otion is un der considerati on.” Morales v. Quintel Ent., Inc., 249 F.3d 115, 121 (2d C ir. 2001). II. Legal Standard Under New York law, wh ich governs in th is d iver sity case, the insured party carries the b urden of show ing that it is co vered by a pol icy, while an insurer bears the burden of showing that a contract excludes policy coverage in the contro versy be cause it co ncern s whether Mt. Hawley fulfilled its o bligations under a policy and w hether Mt. Hawley mu st ind emnify Merc hants for a portion of the settlement amount.

12 particular case, and the exclusions relied on are subject to “no other reasonab le interpretation.” Lend Lease (US) Const r. L MB Inc. v. Zurich A m. Ins. Co., 28 N.Y.3d 675, 684 (2017) (citation omi tted); MBIA Inc. v. Fed. Ins. Co., 652 F.3d 152, 158, 166 (2d Cir. 2011); Seabo ard Sur. Co. v. Gi llette Co., 64 N.Y.2d 304, 3 11 (1984). To resolve the cover age dispute, “w e first look to t he lang uage of the polic y.” Lend Lease, 28 N.Y.3d at 681 (quoting Consol. Edison C o. of N.Y. v. Allstate Ins. Co., 98 N.Y. 2d 208, 221 (2002)). An insurance contrac t must be read “so as to not to rev ise or extend the risk, but with a view toward common spe ech and to what was reasonably intended by the par ties when the policy was written and accepted.” Cetta v. Robinson, 535 N.Y.S.2d 805, 807 (App. D iv. 1988) (citation omitted). We therefore give una mbig uous terms “ the ir plain and ordin ary meanin g, ” “ cons tru [ing ] [the m ] with reference to the ri sk, subject mat ter, and purpose of the p olicy. ” Show Car Spee d Shop, In c. v. U.S. Fi d. & Guar. Co., 596 N.Y.S.2d 608, 609 (App. Div. 1993); Throgs Neck Bagels, Inc. v. GA Ins. Co. of N. Y., 671 N.Y.S.2d 66, 6 9 (App. Div. 1998). Words sh ould not be “ isola ted from . . . context” an d “ [f] orm should not pr evail over substance.” Kass v. Kass,

13 91 N.Y.2d 554, 566 (1998) (quotin g William C. Atwater & Co., Inc. v. Pan. R.R. Co., 246 N.Y. 519, 524 (1927)). Ambiguous languag e, however, require s diff erent treatment. Amb igu ity arise s if lan guage “ could sugge st ‘ more than one mean ing when viewed objectively by a reaso nably intelligent pers on who has examined the c ontext of the entire integrated agre ement and who is co gnizant of the cust oms, practices, usages and terminology as generally underst ood in the particula r t rade or business.’” Parks Real Est. Pu rchasing Gr p. v. St. Paul Fire & Marine Ins. Co., 472 F.3 d 33, 42 (2d Cir. 2006) (quoting Morgan Stanl ey Grp. Inc. v. New Englan d Ins. Co., 225 F.3d 270, 275 (2d Cir. 2000)). When face d with ambiguous language, a court may look to extrinsic evidence to determi ne the parties’ in tent d uring the formation of th e contract, a nd, if that evidence is inconclusive, apply other rules of contract construction, such as the rule of contra proferen tem, which provides that an ambiguity should b e resolved in favor of the insured. Parks, 472 F.3d at 43; Morgan Stanley, 225 F.3d at 275–7 6; Du ane Reade, Inc. v. St. Pa ul Fire & Marine In s. Co., 411 F.3d 384, 390 (2d Cir. 2005). “In the context of an action pre dicated on a con tract disput e, summary judgment is generally inapp ropriate where the cont ested contractua l language is

14 ambiguous. ” N.Y. Marine & Gen. Ins. Co. v. Lafa rge N. Am., In c., 599 F.3d 1 02, 114 (2d Cir. 2010) (citatio n omitted). Howev er, a court may grant s ummary judgment “ where the extrinsic evidence il luminating the pa rties’ i ntended meaning of th e contract is ‘so one - sided that no reas onable person could decide to the contrary’” or “‘ where there is no extrinsic evidence that would suppor t a resolution of [the] ambiguities in favor of the nonmoving party’s case. ’” Id. at 115 (firs t q uotin g Compagnie Financiere de CIC et de L'Union Europeen ne v. Merrill L ynch, Pierce, Fenner & Smith Inc., 232 F.3 d 153, 158 (2d Cir. 2000), the n quo ting Topps Co. v. Cadbury Stani S.A.I.C., 526 F.3 d 63, 68 (2d Cir. 20 08) (alte rat ion in ori gin al)). III. Additional Insuran ce Coverage The parties first dispute whether Reidy was an additional ins ured with in the meaning of the Coverage Grant, wh ic h protect s ad dit iona l insur ed s “ o nly with respect to liab ility arising ou t of [Vanqu ish’s] pre mises, ‘ [Vanq uish’s] work ’ for the additional insure d, or acts or omissions of the additional insured, in conne ction with thei r general supervisi on of ‘ [Vanquish’s] w ork.’ ” A- 8 33. On appeal, as below, Mt. Hawley reads the phrase “in connection with” to modify the entire Coverage Grant, “ as reflected by the comma before the phrase. ” Appe llant’s

15 Br. 47. T herefore, Mt. Haw ley c la ims, its policy on ly co vers inj uries ar isin g out of Reidy’s general supervision o f Vanquis h’s work. We disagree, beginning our explan ation with the two disjunctive lists in the Coverage Gran t. 7 T he Coverage Grant first limits Mt. H awley’s liabil ity to the conditions set forth in a disjunc tive list — “[Reidy ] is a n insur ed only with respect to lia bil ity ar isin g ou t of [Vanquish’s ] premises, [Vanquish’s] work for [Reidy ], or acts or omissions of [Reid y ][.] ” A - 833 (emphasis ad ded). But t h e last i tem on th at l ist (“ a cts or om issio ns ”) is itself a dis junc tive list, cr eating two layers of disjunction in the sin gle sentence. Th at ite m, “acts or o missions,” is then followed by a com ma and a restrictiv e prepositional cl ause (“in connection with”). The question thus presented is whether t he clause “in connect ion with” modifies the larg er disjunctive li st (premises, work, or acts or omissions), o r the nested disjunctive list (ac ts or omissions) on ly. T he answer is the latter. Pursuant to the r ule of the l ast ante cedent, “[a] lim itin g cla use o r phrase. . . should or dinarily be read as modifying only the n oun or phras e that it immediately fo llows.” Barnhart v. Tho mas, 540 U.S. 20, 26 (2003); see 2A N. S inger, 7 In revie wing a grant of summary judg ment de novo, we may affirm on any basis supported by t he record. All co Fin. Ltd. v. Klee, 861 F.3d 82, 95 (2d Cir. 2017) (citation omitted). We therefore decline to address w hether Mt. Hawley’s arguments are precluded under Sectio n 3420(d)(2), assuming — without deciding — that they a re not.

16 Sutherland on St atutory Cons truction § 47.33, at 369 (6th rev. ed. 2000) (“Referential and qualifying words an d phrases, wh ere no contrar y intent ion appears, refer solely to the last anteceden t.”). Bu t i n contr ast to th is of t - app lied rule, the series - qual ifier canon provides that “ ‘ [w ]hen there is a straightforward, parallel construct ion that involves al l nouns or verbs in a series,’ a modifier at the end of the l ist ‘n ormally a pplies to t he entire series.’” Facebook, Inc. v. Duguid, 592 U.S. 395, 402 -403 (2021) (q uoting A. Scalia & B. Garne r, Reading Law: The Interpretation of Leg al Texts 147 (2012) (alteration in orig inal)). “When a comma is inc luded,” th is C ircu it ge nera lly app lie s the serie s - qualifier canon in lieu of the last antece dent rule. Am. Int’l Grp., Inc. v. Bank of Am. Co rp., 712 F.3d 775, 781- 82 (2d Cir. 2013). Here, however, w here there are nested dis junctive lists, both syn tactic canons work in tand em. We lo ok first to the last an tecedent to the cla use “in connection with,” which is “omissi ons.” Given the comma, we apply the series - qualifier canon and expand the limiting clause’s re ach to include the series “acts or omissions.” Mt. Hawley argues for more – asking th at we apply the series - qualif ier canon twice to inc lude the larger list of “premises” an d “work.” But we

17 decline to do so, instead adopting the reading that comports wit h the most natural construction of the contract, as con firmed by the agreement viewed as a whole. C onsider the Limitations Clause. In one bullet point, the Limitations Claus e explains tha t the policy does no t cover bodil y injuries a rising “ out of any act, omission, or negligence ” of an ad ditional insur ed “ othe r than t he ge neral supervision of work pe rformed for the additional insured(s) by [Vanquish].” A -83 4 (emphasis added). But two s eparate b ulle t points limi t coverage when “all work on the project ” perfor med “on beha lf of the add itional insur eds” at the site has been compl eted and when Vanq uish’s wor k— “ou t of which the injury. . . arises” — has been “put to its intended use” by entities “other than another contractor or subcontractor en gaged in performing op erations for a principal as part of the sa me project.” A-833. Put si mply, th e Lim ita tions Claus e pla ces durational limits on inju rie s at the site and fro m Vanqu ish’s work and then, separately, places restr ictions on injuries arising out of Re idy’s acts and omiss ions other than its s uper vis ion of Vanquish. Each bulle t poin t in the Limita tions Cla use thus corr esponds to a s eparate categ ory in th e Coverage Gran t. This overall structur e strongly sug gests that the phrase “in connection with ” does not modify the entire Coverage Grant, but only the nested disjunctive phr ase, “acts

18 or omissions of the a dditional insured.” See Handelsman v. Sea Ins. Co., 85 N.Y.2d 96, 100 – 101 (1994) (d etermining a phrase did not modify other terms in a cove rage grant in part to creat e consistency with a n exclusion); Utica Fire Ins. Co. of Onei da Cnty. v. Gozdziak, 60 4 N.Y.S.2d 371, 371 –72 (App. Div. 1993) (reading an exclusion to be con sistent with a “parallel policy provision ” that evinced an inten t to defin e covered insureds an d excluded ind ividuals “ in mutua lly e xcl usive f ash ion ”). Fina lly, Mt. Haw ley’s propos ed reading would “ defea t[] the main object of the purchased coverage.” Len d Lease (U. S.) Const r. LM B Inc. v. Zurich Am. Ins. Co., 22 N.Y.S.3d 24, 31 (App. Div. 2015), aff'd o n other grounds by Le nd Lease, 28 N.Y.3d 675. Generally, the purpose beh ind additional insurance in the construct ion industry is to apportion the risks inherent in hiring a subco ntractor. And t he “liability risks” a general contrac tor faces by hiring a subcontractor inc lude both suits for contrib utory negligence and “vicarious res ponsibility for [a] subcontractor’ s ne gligence.” Burlington Ins. Co. v. NYC Transi t Auth., 29 N.Y.3 d 313, 326 (2017) (citat ion omitted); see Citizens Ins. C o. of Am. v. Am. Ins. Co., 130 N.Y.S.3d 289, 290 (A pp. Div. 2020). 8 Th ese w ere precisely t he risk s that Vanquish 8 See also Hanover Ins. Co. v. Phila. Indem. Ins. Co., 73 N.Y.S.3d 549, 550 (App. Div. 2018); 3650 White Plains Corp. v. Mam a G. Afr. Kitchen Inc., 167 N.Y.S.3d 94, 96 (App. Div. 2022).

19 and Reidy contracted to eliminate — and thus, the risk s Vanq uish anticipated when it purchased the Mt. Hawley policy. A -841 (requiri ng coverage from cl aims “arising out of or in any way connected w ith the operations performed he reunder by or on beha lf of [Vanq uish]”); see also B P Air Conditioning Corp. v. One Beacon Ins. Grp., 8 N.Y.3d 70 8, 716 (2007) (discerning the reasonable expectat ions underlying an insurance policy b y look ing to the purchase order that request ed such additional insurance coverage). Mt. Hawley ’s interpretati on, by restrictin g coverage only to injuries arisin g out of Reidy’s su pervision, w ould fail to protect Reidy against “contingent l iability for damage resu lting from operations performed by its [sub]contractor ” outside of Reid y’s supervisio n. C nty. of Monroe v. Travelers Ins. Cos., 100 Misc.2d 4 1 7, 423 (N.Y. Sup. Ct. 1979). We decline to adopt an inter pretation that would “ vir tua lly n ullif [y] the coverage s ought for antic ipate d ris k.” L end Lease, 2 2 N.Y.S.3 d at 31; se e Burlingto n Ins. Co., 29 N.Y.3d at 325 – 27 (rejecting an inter pretat ion tha t was incons istent with the purpose of additional insurance coverage); Cnty. of Monroe, 100 Misc.2d at 423 (same); City of New York v. Phila. Ind em. Ins. Co., 864 N.Y.S.2d 454, 45 6 (App. Div. 2008) (same). In ligh t of the text, str ucture, an d intende d ris k allocation of the policy, we conclude, as did the distric t court, that th e best reading of the Coverage Grant is

20 that it cove rs li abilit y ar ising o ut of 1) Vanq uish’s premises, 2) Vanquish’s work for Reidy, or 3) Reidy’s acts or omissions in connection w ith its general super vision of Vanquish’s work. And be cause the accident arose out o f Vanquish’s work, Reidy is an addition al insured under the policy. We therefore affirm the dis tr ict court’s grant of su mmary judg ment to Reidy on this issue. IV. Employers Liability Exclusi on Mt. Hawle y nex t asse rts that ev en if Reidy is an additional insured, the Employers Liability Exclusion unambiguousl y bars coverage. The E xclus ion states that it does not cover the bodily inj uries of “ [a] n ‘e mployee’ of an y insured arising out of an d in the course of: [e] mp loyment b y the insur ed [.] ” A -7 71. In look ing to the e ntire polic y, we conc lude that Mt. Haw ley has not met its burde n of proving that the E xclusion applie s and is subjec t to “no othe r reasonab le interpretation.” Lend Lease, 28 N. Y.3d at 684 (citation om itted). Instead, w e hold that the Exclusion is ambiguous and construe it aga inst Mt. Hawley, the drafter. According to Mt. Ha wley, the phrase “ [e] mplo ymen t by the insured” refers to the i mmediate anteceden t, “a ny ins ured.” Mt Hawley’s polic y defines an “ insured ” as “an insured person u nder the terms of the underlying insu rance.” A-754 (e mphasis removed). Any insured therefore could encom pass either Vanquish, as the na med insured, or Reidy, as the addit ional insured. S ee Ba yport

21 Constr. Corp. v. BHS Ins. Agency, 98 5 N.Y.S.2d 143, 145 (App. Div. 2014) (concluding that the plain mean ing of “any insured” included additiona l insured and named insured); Howard & Norman Baker, Ltd. v. Am. Safe ty Cas. Ins. C o., 904 N.Y.S.2d 770, 772 (App. Div. 2010) (same). U nder Mt. Hawley’s reading, the E xclus ion ap plie s because an employe e of “any insure d” —Van quish— was injured in the course of employm ent for that insured. We agree with Mt. Hawley that t his interpretation is reasonable, at least when the Exclusion is looked at by itself, shor n of its context. See Hastings Dev., LL C v. Evanston Ins. Co., 701 F. App’x 40, 43 –44 (2d Cir. 2017) (summary order) (inter preting an Exclusion in par t based on the policy’s broad definition of “emplo yee”). But a nother interpretation is even m ore plausib le, part icularly in light of the “customs, practices, us ages and terminology” of the bus iness. Parks, 472 F.3d a t 42. The Mt. Haw ley policy conta ins a Separ ation of Insured s provision, wh ich instructs that the policy app lies “separately to each insured aga inst whom claim is made or suit is brough t.” A - 760. In construing sim ilar contractual language, w e have determined that, i n light of the Separatio n of Insureds, “the insu red” c an be understood to refer to the entity seek ing coverage. See Emp s. ’ Liab. Assurance Corp. v. Travelers Ins. Co., 411 F.2d 862, 865 (2d Cir. 1969); In End urance Am. Sp ecialty

22 Ins. Co. v. Century Sur. Co., 630 F. App ’ x 6, 8 (2d Cir. 2 015) (summary order); Emps. Ins. Co. of Wasa u v. Harleysville Preferr ed Ins. Co., 726 F. App ’ x 56, 62 –63 (2d Cir. 2018) (summary ord er). So, too, ha ve New York courts. See, e.g., Fulmont Mut. Ins. Co. ex rel. Hutchinson v. N.Y. Cent. Mu t. Fire Ins. Co., 772 N.Y.S.2d 406, 408 (App. Div. 2004); Gr eaves v. Pub. Serv. M ut. Ins. Co., 5 N. Y.2d 120, 12 3– 125 (1959); Lane v. Sec. Mut. Ins. Co., 96 N.Y.2d 1, 5 (2001). Here, employees of “ any insure d, ” Vanquish, were injured, but no t in the s cope of their emp loyment for Re idy. Because Rei dy is the insured seeking cove rage, the Exclusion does not app ly. Mt. Hawley attempts to disc redit this latter in terpretation as rendering the term “an y insured” a nul lity. It is true t hat the Separati on of Insureds provision may not be used t o override the p lain meaning of terms such as “an y insured.” See Enduran ce, 630 F. App ’ x at 8; Howard & Norman Baker, 904 N.Y.S.2d at 771–72; Richner Dev., LLC v. Burlingto n Ins. Co., 91 6 N.Y.S.2d 211, 212 – 13 (App. Div. 2011). But the Se paration of Insu reds Clause here does n o such thi ng. Rather, read in context of the Separation of Insureds pro visio n, the Employers Liability Exclusion preclude s coverage of injuries susta ined by employee s of any insured when it is their em ployer who is seeking coverage (“ the insured”). And t his construction — whereby no insured could seek compensa tion from Mt. Haw ley for inj urie s to i ts

23 own employees — “makes excellen t sense, since su ch risks would be expe cted to be covered by workme n ’ s compensation insurance.” Emps.' Liab. Assur an ce, 411 F.2d at 865. In short, exa minin g “th e enti re co ntrac t” — not just spe cif ic wo rds in the ir immediat e context s—confirms that in sofar as Mt. H awley’s argument is concerned, the E mpl oyer s Liabi lity E xc lusio n is, a t best, a mbiguous. Kass, 91 N.Y.2d at 566 (c itation om itted) (emphasis added); see Riversi de S. Plan. Corp. v. CRP/Extell Riverside, L.P., 13 N.Y.3d 3 98, 404 (200 9). While t he defin ition of insureds and “co mmon speech” m ay suggest that the E mployer s Liabi lity Exclusion is sweeping, Cetta, 535 N.Y.S.2d at 807, t he Sepa ration o f Insured s provision s uggests ot herwise, see Emps. ' Liab. Assu r ance, 411 F.2 d at 8 65. So, too, do o ther prov ision s in the policy. The “Automobile Liab ility Exclusion,” for example, d iscu s ses claims “ag ainst a ny insured ” regarding “ the supervis ion, hiring, employment, training or monit oring of others by that insured. . . . ” A - 763 (emphas e s ad ded). The Employers Liability Exclusi on elsewhere exempts injuries sustained by family members of “ that ‘ employee. ’ ” A - 771 (emphas is added). The fact that Mt. Ha wley did no t draft the E mplo yers Liab ility Exclusion to exempt injuries sus tained by an employee of any insured in the cours e of

24 employm ent for that insured — when it obvious ly knew how to do so — further undermi nes any at te mpt to d istill the Exclusion to on ly one p ossib le mean ing. See Essex I ns. Co. v. Grande Sto ne Quarry, LLC, 918 N.Y.S.2d 238, 241 (A pp. Div. 2011) (concluding an Exclusion was a mbiguous for si milar reasons); cf. Maroney v. N.Y. Cent. Mut. Fire I ns. Co., 5 N.Y.3d 467, 473 (2005). Having concluded that the lang uage in the Employers Liabi lity Exclusion is ambiguou s, we therefore tu rn to extrin sic evidence t o ascertain t he intent of the parties. Parks, 472 F.3d at 43. Mt. Hawley, as the insure r, carries the b urden of proving that its interpretation is correct in light of such evidence. Morgan Stanley, 225 F.3d at 276. On appeal, as be low, Mt. Hawley of fers no extrinsic ev idence supporti ng its interpretatio n. Rather, it rejects any possibility o f ambiguity and merely res tat es how the Employer’s Liability Exclusion shou ld be read. Witho ut such extrinsic eviden ce, we must constr ue the ambiguous l anguage in favor of the insured, Reidy. Parks, 472 F.3d a t 43; Morgan Stan ley, 225 F.3d at 276. Th us, as a matter of law, the Employer’s Liabili ty Exclusion does not bar cove rage, and the district c ourt pr ope rly granted Reidy and Merchants’ motion for summary

25 judgment and denie d Mt. Hawley’s mo tion on this issue. N.Y. Marine, 599 F.3d at 115. CONCLUSION For the foreg oing reasons, we AFFIRM th e judgme nt of th e distr ict court.

24-1069 Reidy Con tracting G roup, LLC v. Mt. Hawley Insura nce Compan y M ENASHI, Circuit Judge, dis sent ing: The contract in this cas e reads as follows: “ This policy does not apply to bodily injur y to an employee of any insured arising out of and in the cour se of e mployment by the ins ured.” App’x 771 (cle aned up). An ordinary reader of this sentence would understand th at “the insured” refers b ack to “any i nsured.” So “the insured” denotes whichev er of the insureds —Vanquish or Reidy — oversees the employee wh o suffer ed bodily inj ury. Because the injured employ ees here are empl oyees of Vanquish, “the ins ured” refe rs to Vanquish. That c onc lusio n fol lows directly from the straightforwar d contractual language. But the major ity follows a convo luted path away from applying the plain cont rac tual te xt. Firs t, the m ajorit y decides that the contract is “ambiguous” because “ the in su red” m ight actually mean “the insured seeki ng coverage.” Ante a t 2 0-22. Second, the majo rity f aults Mt. Ha wley for failing to produce “ ext rinsic evidence” that woul d resolve the pur ported a mbiguity the m ajority has discovered. Id. at 2 4. Third, in the absence of such evidence, the majority “construes” the o ste nsib ly “amb iguous lan guage in fa vor of the insu red.” Id. at 24 -25. I wou ld begin and end with the text of the contract. In m y vie w, “no reasonable laym an could have misun derstood the languag e used. Only a lawyer coul d find anything amb iguous about it; and the strained and involv ed attempts to mak e words mean what they plainly do not is proof that a mbiguity is lacking. ” Wilson v. Sta te Farm Mut. Auto. Ins. Co., 1 28 N.W.2d 218, 2 22 (Iowa 1964) (Thomps on, J., dissenting). Accor dingly, I d isse nt.

2 I This case comes down to twenty - six words: “ This policy doe s not apply to bodily injury to an emp loyee of any insured arisi ng out of and in the course of employmen t by the insure d. ” App’x 771 (cleaned up). How s hould we read those words? The state co urts of New York have told us: “Wher e the provisions of an insurance contract are clear and unamb iguous, the courts should not str ain to superimpose an unnatural or unreasonab le construction.” Maurice Goldman & Sons, Inc. v. Hanover Ins. Co., 80 N.Y.2d 986, 9 87 (1992). As a result, “unambigu ous provisions of an insurance contract must be given their plain and ordinary meanin g.” Vigil ant Ins. Co. v. Bear Stearns Co s., 10 N.Y.3d 170, 177 (2008) (quo ting White v. C ont’l Ca s. Co., 9 N.Y.3d 264, 267 (2007)). T his pr ovis ion is n ot ambig uous. Because “t he insured” refers to the “an y insured” identi fied earlier in the sent ence, “ the insured” denotes whic hever of “any insure d” emp loy s the injured employee. In this case, the i njured employ ees are e mployees of Vanquis h, s o Vanquish is “the insured.” If a contr act sa id th at “an employee of any company may receive a bonus in the course of employment by the co mpany,” no reasonable reader would concl ude that an e mployee’s bonus de pends on working for one s pecific co mpany. T he bonus would be awarded in the co urse of empl oyment by whic hever company—“any company ”— employs the relevant employee. If an other contrac t said that “an employee of any gove rnment w ill be fired f or misco nduct arisin g in the course of hi s or her empl oyment by the government, ” everyone agai n wou ld understand that “t he government” refers to whichev er of “any government ” supervises the employee.

3 The majority recognizes t his commonsensical v iew unde r which “the Exclusion applies because an emplo yee of ‘ any insured ’— Vanquish— was injured in the cour se of emp loyment f or that insured.” Ante at 21. The majority clai ms that this interpretation is merely a “re asonable ” one. Id. But th is is the na tural and ob vious meaning of the tex t. When the contrac tual lan guage is as cle ar as it is here, the “case begins, and pretty much e nds, with the text.” Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1724 (2020); see Vigilant Ins. Co., 10 N.Y.3d at 177. II Yet the majority refuses to apply the plain and or dinary meaning of the tex t. It insis ts that there is “ another i nterpretatio n” that i s “even more plaus ible, particularl y in ligh t of the ‘cu stoms, practices, usages and term inology’ of the business.” Ante at 21 (emphasis added) (quotin g Pa rks Real Est. Purchasing Grp. v. S t. Paul Fire & Marine I ns. Co., 472 F.3d 33, 42 (2d C ir. 2006)). The major ity observes that “[t]he Mt. Hawley policy contains a Separation of Insureds provision, which instructs that the policy app lies ‘ separatel y to each ins ured against who m clai m is made or suit is brough t. ’” Id. at 21 -22 (q uoting App’x 760). And the majority argues tha t “ in ligh t of the Separation of I nsureds, ‘ the insured ’ can b e understood to re fer to the entity s eeking coverage.” I d. at 22 (emphas is added). In this way, when “r ead in context of the Separa tion of Insureds pr ovision, the Emp loye rs Lia bil ity Exc lusion preclude s coverage of injuries sustained by emp loyees of any insu red when it is thei r employer who is seeki ng coverage (‘ the ins ured ’).” Id. at 23. The upsho t of th is int erpre tation is th at if J ohn Doe was injured while working for Company A, the po licy precludes Com pany A from receiving c overage when Compan y A seeks coverage. In this

4 case, the empl oyees worke d for Vanquish but Reid y sought co verage. See id. at 23 -24. “B eca use Reidy is the i nsured seeking covera ge, the Exclusion does not apply.” Id. at 22 (e mphasis added). Given the poss ibilit y o f this alt ernative understand ing, the majority concludes that the twen ty -six w ords are, “at best, a mbiguous.” Id. a t 23. But that is wrong. The tortured way in wh ich the major ity arrives at its alt ernative understa nding violates a basic pr inci ple of contract interpretation. “ We cannot d isregard ‘ the plain meaning of the policy ’ s languag e in order to find an ambiguity wher e none exists. ’” 10 Ellicott Square Ct. Corp. v. Mountain Valley Ind em. Co., 634 F.3d 112, 119 (2d C ir. 2011) (alter ation omitted) (quotin g Em pire Fire & Marine Ins. Co. v. Eveready Ins. Co., 851 N.Y.S.2d 6 47, 648 (2d Dep ’ t 2008)). That is wha t th e majority d oes: According to the ma jority, the twenty - s ix w ords mi ght app ear to ha ve a p lain mean ing. But wh en you throw in the separation-of- in sure ds cla us e, the broader commercial practice, and the case law, the words beco me ambigu ous. That approach is b ackward. “ The r ules of i nterpretati on are resorted to for the purpos e of resolving ambiguity, not f or the purpose of creating it.” In re Boggs - R ice Co., 66 F.2d 855, 858 (4th Cir. 1933). S uch tools “ may not be used to cr eate but on ly to remove doubt.” Russell Motor Car Co. v. United Stat es, 261 U.S. 514, 519 (1923). Even assum ing that it is pr oper fo r the major ity to look beyond the unambiguo us text, moreove r, none of the three pi eces of context that it identifies justify a departure from the plain lang uage. A First, the majority conte nds th at when the contract includes a separation-of- insureds clause, the phrase “th e insured” must refer to the entity seeking coverage. I agre e that we con sider a contractual provision in “ con text.” A nte at 23. But it is no t true that t he separation -

5 of- insureds clause affects t he meaning of “the insured” in the liabili ty exclu sion here. The separ ation -of- insureds clause directs that the policy be applied “se parately to each insured against whom claim is made or suit is brou ght.” App’x 760. That means that we read the contract “from the perspe ctive of the parti cular insu red seeking coverage.” E ndurance Am. Specialty I ns. Co. v. Century Sur. Co., 630 F. App’x 6, 7 (2 d Cir. 2015). If the contract ref erred only to “the insured,” we would understand the ref erence to be to the particular insured see king coverage. But we do not underst and an insurance contract th at way — even when it includes a sepa ration -of- insureds clause —if the contr act refers to “any insured”: [W]here, for exam ple, employee exclusio ns have altered the language “ the insured ” to language express ing a different inten t, such as “ any insured,” courts have held that t he insuranc e policy preclu des coverage of i njuries to any employee, whether empl oyed by the insured seeking coverage or not, be cause to do otherwise wou ld render the una mbiguous l anguage referring t o any insured “ a nullity. ” Id. at 8 (quoting Nautilus Ins. Co. v. Barfi eld Realty Co rp., No. 11 - CV - 7425, 2012 WL 4889280, at *10 (S.D.N.Y. Oct. 16, 2012)). The c ontract in th is cas e refers to “any insured.” App’x 771. T he separat ion-of- insureds clause does not requi re us to ign ore the obvious fact that “ the insured ” la ter in t he sentence refer s to any one of the “ any insured ” described ea rlier i n the sentence. To the co ntrary, we must acc ept tha t plain meaning rather than “strain to super impose an unnatural or unreasonable constructi on.” Maurice Goldman & Sons, 80 N.Y.2d at 987. “[C ]ourts ar e to construe the terms of an insurance cont ract as they are used in common speech.” P arks, 472 F.3d at 42.

6 T he applica ble case law requires us t o adopt t he interpret ation that Mt. Hawley endorses rather than the one the majority con trives. According to that case law, w e must avoid an interpretation that “ would render t he unambiguous language referri ng to any insured ‘a nullity.’” Endura nce, 630 F. App’x at 8 (emphasis adde d) (quoting Nautilus, 2012 WL 4889280, at *10). T he interpret ation o f the majority does just that. When it concludes tha t “the insured” refers not to “any insured” — as th e co ntract is wr itten — bu t only to the par ticular insured see king coverage, the majority writes the phrase “any insured” out of the contract. The excl usion might as well ap ply to “bodily injury to an employee of the insured arising out of and in the course of empl oyment by the insured.” But tha t is no t wh at the contract says. When a n interpretation would render the phrase “any insured” a nulli ty, “courts have he ld that the insurance policy preclud es coverage of inj uries to any employee, whether empl oyed by the insured seeking c overage or not.” Id. We s houl d foll ow t hat precedent here. T he major ity cannot deny that its inter pr etatio n nu llif ies the phrase “any insured. ” It acknowledges th at “Mt. Hawle y attempts to discredi t this latter interpreta tion as rendering t he term ‘any insured’ a nullity.” Ante at 22. I t respon ds to that a rgumen t by asserting that, when “read in cont ext” of the separation -of- insured s clause, the liab ility ex clus ion “ preclude s cover age of injuries sus tained by employees of any insured when it is their employer who is seeking coverage (‘ the insur ed ’).” Id. at 23. That is an a dmission that Mt. Hawley is right: Nothing about this interpretation would be any different if “any insured” were rep laced wit h “the insured.” So the majority pivots to a policy argu ment. It says that its preferred “construction— whereby no insured coul d seek compensation fro m Mt. Hawley for injuries to its own emplo yees —

7 ‘ makes excell ent sense, since s uch risks would b e expected to be covered by work men’s compensa tion insurance. ’” Id. (qu oting Employers' Liab. Ass ur. Corp. v. Travelers In s. Co., 411 F.2d 8 62, 865 (2d Cir. 1969)). Our job is not to p ick the arran gement that we think would make the mo st sense for the parties. The part ies have already negotiated and s igned a contract bas ed o n what they be lieve would make th e most sense for th em selves. “In a contract action, the court ’ s general objective sh ould be to give effe ct to the intentions of the parties i n entering into the agreem ents.” Metro. Life Ins. C o. v. RJR Nabisco, Inc., 906 F.2 d 884, 889 (2d Cir. 1990). I would adhere to the contractual lang uage as the best e vidence of the intentions of the parties ra ther than im pose whatev er policy two judges think makes “excell ent sense” based on t heir views of the insu rance market. Ante at 23. “The best evidenc e of what parties t o a written a greement intend is what they say in their writing.” Greenfiel d v. Philles R ecs., Inc., 98 N.Y.2d 562, 56 9 (2002) (quoting S lamow v. Del Col, 79 N. Y.2d 1016, 1018 (1992)). B Second, the majority claims that its inter pretation makes “ excellen t sense ” give n broade r com mercial practices. Cf. ante at 21 (arguing that th e “ interpretati on is even more plausible, p articularly in light of the ‘cus toms, prac tices, usag es and termino logy’ of the business ”) (quoting Parks, 472 F.3d at 42). T he majority suggests that the twen ty - six wor ds mig ht reflect its al ternative understanding because th at understanding c orresponds t o industry norms. But that is wrong a gain. The industry includes p olic ies t hat correspond to both r eadings of the contractual language. Some excess liab ility polic ies clear ly exc lude coverage for general con tractors based

8 on an injury to a subcon tractor’s employee. See, e.g., Bayport Constr. Corp. v. BHS Ins. Agency, 117 A.D. 3d 660, 661 (2d Dep’t 2014) (describing a prov ision that excludes c overage for “Bodily injury to: (1) An ‘employee’ of any insured ar ising out of an d in the cour se of: (a) Employment by any insur ed”); Endurance, 630 F. Ap p’x at 7 (describing a provisi on that exclud es coverage for “ ‘ Bod ily injur y ’ to: (1) An ‘ employee ’ of the named insured arising o ut of and in the course of: (a) Employment by the named i nsured” and that ide ntifies the subcontractor as the named insured) (emphasis omitted). At the same time, ot her exce ss liabil ity polic ies c l early ext end coverage to the general contractor fo r injuries to a subcon tractor’s employee. S ee, e.g., Emps. Ins. Co. of Wau sau v. Harleysvil le Preferred Ins. Co., 726 F. App’x 56, 62 (2d C ir. 2018) (descr ibing a provision that ex clud es cover age for “bodily injury t o: An ‘ employee ’ of the ‘ insured ’ arising out of and in the course of: (1) Employment by the ‘ insured ’”). Thus, t he market for excess li ability insurance inclu des pol icies that cover injuries to the employees of a subcontractor as well as policies that do not. So the commercia l practice provi des support for either of the parties’ interpre tations: S ome po licies would cover general contractors in Reidy’s s ituation whi le others wo uld not. Because the “customs, practices, usa ges and te rminology” do not favor one i nterpretati on over the other, the commerci al practi ce provides no reason to depart fr om the plain contractual l anguage. Parks, 472 F.3d at 42. There is no justificat ion for h olding that Mt. Ha wley ’s inter pretation would c ontradict the com mercial expectations of the p arties. C Third, the ma jority suggests tha t cas e law s uppor ts its interpretation. B ut no precedent hol ds that “the insured” mus t refer

9 to the insured seeking coverage wh enever a contract i ncludes a separation-of- insure ds clause. The appli cable precedent says that a separation-of- insureds clause requires us t o read the con tract from t he perspecti ve of the insured seeking cov erage. From that perspectiv e, a reference to “ the insured” will naturally refer to w hichever i nsured is seeking c overage un less the parties “have altered the la nguage ‘the insured’ to languag e express ing a different intent, such as ‘an y insured.’” Endurance, 630 F. App’x at 8. Th at is the language we have in this case, and there is certainly no precedent that requires “ the insured” to refer only to the i nsured seeking coverag e when the language o f the exclusion expres ses a different i ntent. * * * While an ambiguo us provision must b e interpreted to favor the insured, a co urt “ can not disregard ‘ the plain meaning of the p olic y ’ s language i n order to find an ambiguit y where none exists. ’” 10 Ellicott Square, 634 F.3d at 119 (alteration omitte d) (quoting Empire Fire, 851 N.Y.S.2d at 648). “It may be conce ded that if a po licy of insur ance is of doubtful tenor the courts sho uld employ that interpretati on which is the m ore exacting agai nst the insu rer who has prepared the contract. But if the contract is not of unce rtain meaning, as has ofte n been said, the cour ts may not make a new on e under the g uise of construction. ” Rosen thal v. Am. Bonding Co., 207 N.Y. 162, 168 -69 (1912). A ny reader of English knows what th is sentence means: “This policy does not app ly to bodil y injury to an employee of an y insured arising out of and in t he course of employ ment by the insured. ” App’x 771 (cleaned up). I would give it effect. Because the majo rity instead fashions a contract to which the par ties did not agree, I dissent.