ECB USA, Inc. v. Chubb Insurance Company of New Jersey

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-10811

____________________

ECB USA, INC.,

a Florida Corporation,

ATLANTIC VENTURES CORP.,

a Florida Corporation,

G.I.E. C2B,

a French business entity, as assignees

of Constantin Associations LLP,

a New York limited liability partnership,

CONSTANTIN ASSOCIATES LLP,

Plaintiffs-Counter

Defendants-Appellants,

versus

CHUBB INSURANCE COMPANY OF

NEW JERSEY,

a New Jersey insurance company

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2 Opinion of the Court 22-10811

corporation,

EXECUTIVE RISK INDEMNITY, INC.,

a Delaware Insurance corporation,

Defendants-Counter

Claimants-Appellees.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:20-cv-20569-RNS

____________________

Before JORDAN, BRASHER, and ABUDU, Circuit Judges.

BRASHER, Circuit Judge:

We grant the petition for rehearing in part, withdraw our

previous opinion, and replace it with the following.

This case comes down to grammar and canons of construc-

tion. Chubb issued an insurance policy that covers claims against

Constantin arising from “services directed toward expertise in

banking finance, accounting, risk and systems analysis, design and

implementation, asset recovery and strategy planning for financial

institutions.” Constantin performed an audit for a food services

company; the audit went wrong and led to liability. Constantin

transferred its rights under the policy to the ECB parties. The

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22-10811 Opinion of the Court 3

question for us is whether “for financial institutions” limits “ac-

counting” such that there is no coverage under the policy for the

audit of a food services company.

Chubb and its related parties argue that the phrase “for fi-

nancial institutions” applies to everything in the list; ECB and its

related parties argue that “for financial institutions” applies only to

the last phrase in the series of covered services. We agree with

Chubb. The series-qualifier canon of interpretation suggests that a

postpositive modifier like “for financial institutions” modifies all

the terms in a list of parallel items. Chubb’s position is also sup-

ported by the surrounding language of the policy. Although ECB

argues that the last-antecedent canon and contra proferentem sup-

port its position, those canons are inapposite. Because the account-

ing at issue was not performed for a financial institution, the claim

is not covered by the professional services insurance contract that

Chubb issued. Therefore, we affirm the district court’s grant of

summary judgment to Chubb.

I.

Constantin is a sophisticated commercial entity that pro-

vides accounting services. In 2001, Constantin Control Associates

LP acquired professional services insurance from Executive Risk

Indemnity, Inc. (“ERI”), a subsidiary of Chubb Limited—the ulti-

mate parent company. Constantin’s application for insurance cov-

erage stated that it wanted insurance for “management consulting

for the financial community.” Dist. Ct. Doc. 155-17 at 2. Constan-

tin received professional liability insurance, which it renewed with

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4 Opinion of the Court 22-10811

ERI over the years. The last policy period with ERI ended in De-

cember 2017. In December 2017, Constantin renewed the policy

for the 2017–18 policy period with Chubb Insurance Company of

New Jersey, another subsidiary of Chubb Limited.

For the relevant contract years of 2016–17 and 2017–18,

Constantin’s contract included Constantin Associates LLP as an in-

sured party either by express incorporation or through definitions

involving their corporate relationship. Also in both years, Constan-

tin’s “Professional Services” liability insurance covered services

Constantin performed for others for a fee that were listed in a spe-

cific cross-referenced list. The relevant cross-reference in the insur-

ance policies insured Wrongful Acts—which the contracts define—

in the performance of (1) “Computer Consulting including com-

puter system architecture and design”; (2) “Temporary Placement

Agency Services”; and, critically, (3) “Management consulting ser-

vices.” Dist. Ct. Doc. 155-16 at 6 (2016–17 Policy); Dist. Ct.

Doc. 155-37 at 23 (2017–18 Policy).

The contracts defined “[m]anagement consulting services

[to] mean[] services directed toward expertise in banking finance,

accounting, risk and systems analysis, design and implementation,

asset recovery and strategy planning for financial institutions.”

Dist. Ct. Doc. 155-16 at 6; Dist. Ct. Doc. 155-37 at 23.

Constantin performed an audit for Schratter Foods Incorpo-

rated. Schratter was a food company, not a financial institution; so

the parties do not dispute that Constantin’s provision of accounting

services was not to a “financial institution.” The audit allegedly did

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22-10811 Opinion of the Court 5

not go well. After the audit, the ECB parties—the plaintiffs here—

sued Constantin for alleged wrongdoing in the professional audit

of Schratter’s financial statements in connection with the ECB par-

ties’ acquisition of Schratter. Constantin settled and assigned its

rights against ERI and Chubb Insurance Company of New Jersey

to the ECB parties.

In this case, the ECB parties sued to enforce Constantin’s as-

signed contractual rights to the insurance contract, alleging a

breach of contract based on a duty to defend or indemnify in the

earlier, settled lawsuit. After arguing that New Jersey law applies,

ECB argued in its summary judgment briefing that “for financial

institutions” did not apply to “accounting” because of the absence

of a comma before “for financial institutions.” This was explicitly

an argument about how Chubb did not win under the series-qual-

ifier canon.

Applying New Jersey law, the district court granted the

Chubb parties summary judgment in an omnibus order. The dis-

trict court decided that—contrary to Chubb’s argument—the au-

diting of financial statements was a “service[] directed toward ex-

pertise in . . . accounting.” This meant that auditing could be a type

of covered activity under the professional services insurance con-

tract. But the district court decided that Chubb nonetheless won at

the summary judgment stage because the accounting services must

be for a financial institution to be covered by the insurance con-

tract. The district court also granted reformation of the 2017–18

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6 Opinion of the Court 22-10811

contract to ECB so that it included Constantin as a named insured,

among other decisions not challenged on appeal.

The Chubb parties moved to amend the order, and the ECB

parties requested reconsideration. At reconsideration, ECB raised

the last-antecedent and contra proferentem canons for the first time,

albeit without calling it the contra proferentem canon.

The district court granted the Chubb parties’ motion to

amend the order but denied the ECB parties’ motion for reconsid-

eration, stating that ECB’s new canon arguments had been waived

by not being made before the motion for reconsideration and that,

alternatively, they did not convince the district court that reconsid-

eration was warranted. The district court then entered an amended

omnibus order on February 25, 2022, clarifying the judgment of

reformation in favor of the ECB parties. Chubb does not challenge

the reformation here, and the summary judgment decisions on ap-

peal did not change in the amended omnibus order. The district

court then entered its judgment.

The ECB parties appealed.

II.

Before we can assess the merits, we must resolve two pre-

liminary issues: our standard of review and the district court’s sub-

ject matter jurisdiction. We conclude that our review is de novo and

that the district court had diversity jurisdiction over this dispute.

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A.

We analyze de novo all the issues in this appeal. See Sweet Pea

Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1247 (11th Cir. 2005)

(diversity jurisdiction); Showan v. Pressdee, 922 F.3d 1211, 1223 (11th

Cir. 2019) (state law legal questions); Yusko v. NCL (Bahamas), Ltd.,

4 F.4th 1164, 1167 (11th Cir. 2021) (summary judgment). Chubb

argues that we should apply an abuse of discretion standard on two

points, but we disagree.

First, we do not defer to the district court’s conclusion that

ECB purportedly waived its New Jersey law arguments when we

are assessing waiver for appellate purposes. Although we review

for an abuse of discretion a district court’s determination that a

party waived an affirmative defense by not making it at the appro-

priate time or waived apportionment of damages by making an in-

consistent argument, whether a party has waived an issue for pur-

poses of appeal is a matter that we must assess de novo. Compare

Proctor v. Fluor Enters., Inc., 494 F.3d 1337, 1350 n.9 (11th Cir. 2007)

(affirmative defense), Smith v. R.J. Reynolds Tobacco Co., 880 F.3d

1272, 1280–82 (11th Cir. 2018) (apportionment of damages), and

Searcy v. R.J. Reynolds Tobacco Co., 902 F.3d 1342, 1359 (11th Cir.

2018) (apportionment of damages), with United States v. Riggs, 967

F.2d 561, 564–65 (11th Cir. 1992) (analyzing appellate waiver our-

selves when the party failed to make an argument in the district

court), and Am. Builders Ins. Co. v. Southern-Owners Ins. Co., 71 F.4th

847, 856 n.1 (11th Cir. 2023) (same).

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8 Opinion of the Court 22-10811

Second, the district court’s denial of ECB’s motion for recon-

sideration does not change the standard of review we apply to its

decision to grant summary judgment. When we review a disposi-

tion after a denial of a motion for reconsideration, we review the

original disposition itself under whatever standard of review we

would normally use. See Blackburn v. Shire US Inc., 18 F.4th 1310,

1317 (11th Cir. 2021) (using an abuse of discretion standard when

reviewing a denial of leave to amend under Federal Rule of Civil

Procedure 15(a)(2) because that is the Rule 15(a)(2) standard, with-

out regard to the denial of the motion for reconsideration). To re-

verse a judgment, an appellant needs to establish an error in the

judgment, not an error in the judgment plus an error in the district

court’s denial of a motion to reconsider that judgment. Here, we

address the challenged summary judgment order without regard

to the unchallenged denial of the motion for reconsideration. See

Gulisano v. Burlington, Inc., 34 F.4th 935, 941–45 (11th Cir. 2022) (af-

firming an initial sanctions order despite separately deeming aban-

doned a challenge to the subsequent denial of a motion for recon-

sideration of that sanctions order).

B.

We have appellate jurisdiction over the district court’s final

judgment under 28 U.S.C. § 1291. But before addressing the merits,

we must first satisfy ourselves that the district court had subject

matter jurisdiction. We raised this issue sua sponte, the parties

briefed the issue, and, ultimately, the plaintiffs amended the

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22-10811 Opinion of the Court 9

complaint. The parties argue that the district court had diversity

jurisdiction under 28 U.S.C. § 1332(a). We agree.

For diversity jurisdiction, the citizenship of all parties must

be completely diverse, and the amount in controversy must exceed

$75,000. See Underwriters at Lloyd’s, London v. Osting-Schwinn, 613

F.3d 1079, 1085 (11th Cir. 2010) (citing Strawbridge v. Curtiss, 7 U.S.

(3 Cranch) 267, 267 (1806); Palmer v. Hosp. Auth. of Randolph Cnty.,

22 F.3d 1559, 1564 (11th Cir. 1994); Tardan v. Cal. Oil Co., 323 F.2d

717, 721–22 (5th Cir. 1963); 28 U.S.C. § 1332(a)). There is no mean-

ingful question that the matter in controversy is over $75,000. But

the face of the pleadings originally did not disclose the citizenship

of all the parties.

A corporation is a citizen of its state or foreign country of

incorporation and principal place of business. See 28 U.S.C.

§ 1332(c)(1). But we determine diversity jurisdiction for partner-

ships and nearly all other non-corporate entities based on the mem-

bers’ citizenships. Underwriters at Lloyd’s, London, 613 F.3d at 1086

(citing Puerto Rico v. Russell & Co., 288 U.S. 476, 480 (1933)); see also

Schiavone Constr. Co. v. City of New York, 99 F.3d 546, 548 (2d Cir.

1996) (joint ventures); Rolling Greens MHP, L.P. v. Comcast SCH Hold-

ings L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004) (LLCs).

We begin with the plaintiffs. Atlantic Ventures Corp. and

ECB USA, Inc. are Florida corporations with their principal places

of business in Florida. G.I.E. C2B (“C2B”) is a Groupement d’Inte-

ret Economique under French law, which resembles a joint ven-

ture (a type of partnership). See Union Carbide Corp. v. Exxon Corp.,

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10 Opinion of the Court 22-10811

77 F.3d 677, 679 (2d Cir. 1996); Phillips v. Kaplus, 764 F.2d 807, 810

(11th Cir. 1985) (“joint venture partnership”). C2B has twenty-nine

shareholders: three are Florida corporations with their principal

places of business in Florida, nineteen are French corporations with

their principal places of business in France, and seven are French

LLCs (which are entirely made up of French citizen individuals or

French corporations with a principal place of business in France).

In sum, C2B’s members are citizens of France and Florida. Thus,

the plaintiffs are citizens of France and Florida. 1

Defendant Chubb Insurance Company of New Jersey is a

New Jersey corporation with its principal place of business in New

Jersey, so it is a citizen of New Jersey. Defendant ERI is a Delaware

corporation with its principal place of business in New Jersey, so it

is a citizen of Delaware and New Jersey. Thus, the defendants are

citizens of New Jersey and Delaware.

Because the plaintiffs are citizens of France and Florida, and

the defendants are citizens of Delaware and New Jersey, there is

complete diversity. Therefore, we agree with the parties that the

district court had diversity jurisdiction under 28 U.S.C. § 1332(a).

1 Constantin Associates, LLP was substituted and eliminated as a party to the

Fourth Amended Complaint under Federal Rule of Civil Procedure 17(a)(3).

We construe the Fifth Amended Complaint—amended at our order—to con-

tain the same party substitutions. Rule 17(a)(3) provides that “[a]fter . . . sub-

stitution, the action proceeds as if it had been originally commenced by the

real party in interest.” Fed. R. Civ. P. 17(a)(3). Therefore, we ignore Constan-

tin’s citizenship in our complete diversity analysis.

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III.

Having resolved the standard of review and jurisdiction, we

now turn to the merits. Chubb insured Constantin against liability

arising from “services directed toward expertise in banking finance,

accounting, risk and systems analysis, design and implementation,

asset recovery and strategy planning for financial institutions.”

Constantin performed an allegedly negligent audit for a food ser-

vice company—not a financial institution. Whether the policy pro-

vides coverage turns on whether the phrase “for financial institu-

tions” modifies “accounting.”

The parties agree that New Jersey law governs our interpre-

tation of the policy, but there is nothing unusual or idiosyncratic

about New Jersey law as it pertains to principles of contract inter-

pretation. Like most state courts, the Supreme Court of New Jersey

has held that “[i]n attempting to discern the meaning of a provision

in an insurance contract, the plain language is ordinarily the most

direct route.” Chubb Custom Ins. Co. v. Prudential Ins. Co. of Am., 948

A.2d 1285, 1289 (N.J. 2008) (citing Zacarias v. Allstate Ins. Co., 775

A.2d 1262, 1264 (N.J. 2001)). “If the language is clear, that is the end

of the inquiry. Indeed, in the absence of an ambiguity, a court

should not ‘engage in a strained construction to support the impo-

sition of liability’ or write a better policy for the insured than the

one purchased.” Id. (citation omitted) (quoting Progressive Cas. Ins.

Co. v. Hurley, 765 A.2d 195, 202 (N.J. 2001)).

The New Jersey courts have also recognized that linguistic

canons of construction may help a court determine the plain

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12 Opinion of the Court 22-10811

meaning of a text. See, e.g., Gudgeon v. Ocean Cnty., 342 A.2d 553,

555 (N.J. Super. Ct. App. Div. 1975) (describing grammar analysis

using the syntactic canons as merely “consideration of principles of

grammatical construction”). The Supreme Court of New Jersey

has long applied the last-antecedent canon as it is commonly un-

derstood. See State v. Gelman, 950 A.2d 879, 884 (N.J. 2008) (“[T]he

doctrine of the last antecedent . . . holds that, unless a contrary in-

tention otherwise appears, a qualifying phrase within a statute re-

fers to the last antecedent phrase.” (citing 2A Norman J. Singer &

Shambie Singer, Sutherland Statutes and Statutory Construction

§ 47.33 (7th ed. 2007))). And recently, the Supreme Court of New

Jersey recognized that the series-qualifier canon applies “when

there is a modifying word or phrase that appears at the beginning

[or end] of an uninterrupted list.” See In re Proposed Constr. of Com-

pressor Station (CS327), No. 088744, --- A.3d ----, 2024 WL 3659132,

at *9 (N.J. Aug. 6, 2024) (citing Lockhart v. United States, 577 U.S.

347, 364 (2016) (Kagan, J., dissenting) (quoting Antonin Scalia &

Brian A. Garner, Reading Law: The Interpretation of Legal Texts 147

(2012))).

Finally, New Jersey courts recognize contra proferentem. This

substantive canon provides that courts should read an ambiguous

contract to have the meaning that favors the non-drafting party,

which is generally the insured party with an insurance contract. See

Oxford Realty Grp. Cedar v. Travelers Excess & Surplus Lines Co., 160

A.3d 1263, 1270 (N.J. 2017) (“Ordinarily, our courts construe insur-

ance contract ambiguities in favor of the insured via the doctrine

of contra proferentem.” (citing Progressive Cas. Ins. Co., 765 A.2d at

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22-10811 Opinion of the Court 13

201–02)). Effectively, contra proferentem gives weight to one party’s

interpretation if there is a true ambiguity.

Chubb argues that ECB cannot rely on the last-antecedent

or contra proferentem canons on appeal because it first raised these

canons in its motion for reconsideration under Federal Rule of Civil

Procedure 59—which the district court denied in part because the

canons had not previously been raised—and because ECB did not

challenge the district court’s denial of its motion for reconsidera-

tion on appeal. We disagree. As we have already explained, we are

reviewing the district court’s earlier summary judgment decision,

not its decision on ECB’s motion for reconsideration. In denying

ECB’s motion for reconsideration, the district court properly noted

that a Rule 59 motion is usually not a proper vehicle to raise new

arguments that could have been raised prior to the entry of judg-

ment. See Michael Linet, Inc. v. Village of Wellington, 408 F.3d 757, 763

(11th Cir. 2005). But the district court’s ruling on ECB’s Rule 59

motion does not control what arguments ECB may make on ap-

peal.

For purposes of appeal, ECB may raise the canons to support

its construction of the policy. Litigants can waive or forfeit posi-

tions or issues through their litigation conduct in the district court

but not authorities or arguments. See Nelson v. Adams USA, Inc., 529

U.S. 460, 469–70 (2000); Yee v. City of Escondido, 503 U.S. 519, 534

(1992); Hi-Tech Pharms., Inc. v. HBS Int’l Corp., 910 F.3d 1186, 1194

(11th Cir. 2018); Black v. Wigington, 811 F.3d 1259, 1268 (11th Cir.

2016). So a party cannot usually argue that a legal text should be

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14 Opinion of the Court 22-10811

read to mean something different on appeal than what it argued for

below (a new position) or raise a new legal ground as the reason it

should win (a new issue). But a party on appeal can always cite a

new authority—such as the canons of construction—in favor of

reading a legal text to mean what the party advocated for below.

Here, of course, ECB has consistently argued that the policy lan-

guage covers “accounting” consulting for businesses in any indus-

try, notwithstanding the phrase “for financial institutions.” The

canons merely provide additional authority to support that posi-

tion.

Although our caselaw has sometimes muddied the line be-

tween an issue (which can be waived or forfeited) and an argument

(which cannot be), we are nowhere close to the line here. A party

may always rely on a canon of construction to support the same

interpretation of a legal document that the party advanced in the

district court. A party can no more waive or forfeit the canons for

appellate purposes than it can waive or forfeit the existence of a

precedent or the words of a statute. See United States v. Dawson, 64

F.4th 1227, 1239 (11th Cir. 2023) (“Indeed, a party cannot waive

lenity any more than it can waive the plain meaning of a word or

the canon of noscitur a sociis.”). So even if ECB missed its chance to

cite these canons to the district court, ECB did not waive or forfeit

anything for purposes of appeal.

Against this backdrop, ECB argues that the policy covers all

accounting services, and Chubb argues that the policy covers only

accounting services for financial institutions. Chubb contends that

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22-10811 Opinion of the Court 15

its position is supported by the series-qualifier canon and the sur-

rounding language in the agreement. ECB says that its position is

supported by the last-antecedent canon. To the extent the language

is ambiguous, ECB says that the principle of contra proferentem

means we must resolve any ambiguities in its favor. We think

Chubb has the better argument in all respects.

A.

We’ll start with the plain language of the agreement. The

object in contract interpretation is to identify the intent of the par-

ties, and the best evidence of the intent is the language of the agree-

ment itself. “The canons of construction often ‘play a prominent

role’ in [interpreting a text] . . . , serving as ‘useful tools’ to discern

th[e] ordinary meaning.” Heyman v. Cooper, 31 F.4th 1315, 1319

(11th Cir. 2022) (quoting Facebook, Inc. v. Duguid, 592 U.S. 395, 410

(2021) (Alito, J., concurring in the judgment)). The parties here rely

extensively—almost exclusively—on canons of interpretation as

evidence of plain meaning. So that is where we will turn.

1.

When a “provision includes a list of nouns followed by a

modifier,” the parties usually invoke two canons: the last-anteced-

ent canon and the series-qualifier canon. Id. And that is what

Chubb and ECB have done here.

The rule of the last antecedent in its purest form provides

that “[a] pronoun, relative pronoun, or demonstrative adjective

generally refers to the nearest reasonable antecedent.” Scalia &

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16 Opinion of the Court 22-10811

Garner, supra, at 144. In grammar, an “antecedent” is “a substantive

word, phrase, or clause whose denotation is referred to by a pro-

noun that typically follows the substantive [word] (such as John in

‘Mary saw John and called to him’).” Antecedent, Merriam-Webster,

https://perma.cc/4896-M68J. “The last antecedent is the last

word, phrase, or clause that can be made an antecedent without

impairing the meaning of the sentence.” Kamienski v. State, Dep’t of

Treasury, 169 A.3d 493, 505 n.11 (N.J. Super. Ct. App. Div. 2017)

(internal quotation marks omitted) (quoting 2A Norman J. Singer

& Shambie Singer, Sutherland Statutes and Statutory Construction

§ 47.33 (7th ed., rev. 2014)). Unsurprisingly, ECB urges us to follow

that canon here, treating “asset recovery and strategy planning” as

the last antecedent—in a loose sense—of “for financial institu-

tions.”

The series-qualifier canon, on the other hand, provides that,

“[w]hen there is a straightforward, parallel construction that in-

volves all nouns or verbs in a series, a prepositive or postpositive

modifier normally applies to the entire series.” Scalia & Garner, su-

pra, at 147. It reflects the unremarkable convention that “[w]hen

several words are followed by a clause [that] [] is applicable as much

to the first and other words as to the last, the natural construction

of the language demands that the clause be read as applicable to

all.” Paroline v. United States, 572 U.S. 434, 447 (2014) (quoting Porto

Rico Ry., Light & Power Co. v. Mor, 253 U.S. 345, 348 (1920)). Unsur-

prisingly, Chubb urges us to apply the series-qualifier canon—treat-

ing “for financial institutions” as an adjective phrase that applies to

each preceding noun in the series, including “accounting.”

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22-10811 Opinion of the Court 17

These two canons are sometimes referred to as “competing”

because they can both apply to words and phrases that come at the

end of a sentence. See Heyman, 31 F.4th at 1319. But they are more

accurately viewed as solving for different problems.

The series-qualifier canon helps us understand the meaning

of items in a list with a parallel construction that are modified by

an adjective, adverb, or qualifying phrase. The paradigmatic case

for the series-qualifier canon is “[a] state statute allow[ing] medical

professionals access to certain hospital records if they [are] ‘request-

ing or seeking through discovery data, information, or records re-

lating to their medical staff privileges.” Scalia & Garner, supra, at

149 (citing Amaral v. Saint Cloud Hosp., 598 N.W.2d 379 (Minn.

1999)). There are two ways to read “through discovery” in this stat-

ute. It either modifies both requesting and seeking or only seeking.

The leading treatise on the canons—Scalia and Garner—explains

that the Minnesota Supreme Court correctly determined that

“through discovery” modifies both terms. See id. at 150 (citing Am-

aral, 598 N.W.2d at 388).

The last-antecedent canon, on the other hand, is generally

used to help us understand to what a pronoun, relative pronoun,

or demonstrative adjective is referring. These are all words or

phrases that act as shorthand or substitutes for something else—

such as “she,” “that kind of activity,” or “such person.” See Pronoun,

Merriam-Webster, https://perma.cc/AW4D-5692; Scalia & Gar-

ner, supra, at 145 (relative pronouns); Demonstrative Adjectives, The

Mayfield Handbook of Technical & Scientific Writing,

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18 Opinion of the Court 22-10811

https://perma.cc/TR99-XBHH. The paradigmatic example of this

canon is in Article II of the U.S. Constitution. It states that “In Case

of the Removal of the President from Office, or of his Death, Res-

ignation or Inability to discharge the Powers and Duties of the said

Office, the Same shall devolve on the Vice President.” U.S. Const.

art. II, § 1, cl. 6, amended by U.S. Const. amend. XXV. What is “the

Same” that devolves onto the Vice President: “the Powers and Du-

ties” of the President or the “Office” of President? The last-anteced-

ent canon resolves this issue in favor of office being the nearest rea-

sonable antecedent of same. See Scalia and Garner, supra, at 144.

To be clear, courts have gone further and applied the last-

antecedent canon to other parts of speech when the text and con-

text reinforce that reading. That is, some have recognized that, in

addition to pronouns and the like, “[r]eferential and qualifying

words and phrases, where no contrary intention appears, refer

solely to the last antecedent.” 2A Norman J. Singer & Shambie

Singer, Sutherland Statutes and Statutory Construction § 47.33 (7th ed.

2007) (collecting cases); see also, e.g., Lockhart, 577 U.S. at 350–52;

Morella v. Grand Union/N.J. Self-Insurers Guar. Ass’n, 917 A.2d 826,

831 (N.J. Super. Ct. App. Div. 2007), aff’d sub nom. Morella v. Grand

Union Co./N.J. Self-Insurers Guar. Ass’n, 939 A.2d 226 (N.J. 2008).

When applying this canon beyond pronouns and related words, “it

is more accurate . . . to call it the nearest-reasonable-referent

canon” because, “[s]trictly speaking, only pronouns have anteced-

ents.” Scalia & Ganer, supra, at 152 (emphasis omitted); see also Ray

v. McCullough Payne & Haan, LLC, 838 F.3d 1107, 1111 (11th Cir.

2016). But the result is the same: this principle suggests that

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22-10811 Opinion of the Court 19

“adjectives, adverbs, and adverbial or adjectival phrases” normally

modify the closest reasonable noun or verb, “and it applies not just

to words that precede the modifier, but also to words that follow

it.” Scalia & Garner, supra, at 152. But that presumption does not

apply when the nouns or verbs are in a parallel series. See id.

(“When the syntax involves something other than a parallel series of

nouns or verbs, a prepositive or postpositive modifier normally ap-

plies only to the nearest reasonable referent.” (emphasis added)).

Of course, all these canons—including the last-antecedent

and nearest-reasonable-referent canons—can be defeated by other

indicia of meaning because they are just one tool of textual analysis.

See Lockhart, 577 U.S. at 352 (“Of course, as with any canon of stat-

utory interpretation, the rule of the last antecedent ‘is not an abso-

lute and can assuredly be overcome by other indicia of meaning.’”

(quoting Barnhart v. Thomas, 540 U.S. 20, 26 (2003))); Gelman, 950

A.2d at 884 (“[U]nless a contrary intention otherwise appears, a quali-

fying phrase within a statute refers to the last antecedent phrase.”

(emphasis added)). Indeed, we have explained that “the canons are

not rules of interpretation in any strict sense.” Heyman, 31 F.4th at

1319 (internal quotation marks omitted) (quoting Scalia & Garner,

supra, at 51). They are just rules of thumb that reflect common

grammatical presumptions. See id.

2.

Having explained the applicable canons, we turn to the meat

of the parties’ dispute: Does “for financial institutions” modify “ac-

counting” in the phrase “services directed toward expertise in

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20 Opinion of the Court 22-10811

banking finance, accounting, risk and systems analysis, design and

implementation, asset recovery and strategy planning for financial

institutions”? ECB argues that we should apply the last-antecedent

canon (or, more accurately, the nearest-reasonable-referent canon)

and hold that “for financial institutions” modifies only “asset recov-

ery and strategy planning.” Chubb argues that we should apply the

series-qualifier canon and construe “for financial institutions” to

modify all the items in the list, including “accounting.”

We believe that, as between the parties’ two ways of under-

standing the text, the better reading is provided by the series-qual-

ifier canon. The key to understanding any text—and to intelligently

applying the canons—is “logic, linguistics, and common sense.” Id.

at 1322. Considering this phrase in context, the best reading of the

policy language is that it covers “services directed toward expertise

in . . . accounting . . . for financial institutions.”

We believe this understanding is better for three reasons.

First, the relevant phrase here involves none of the parts of

speech to which the last-antecedent canon is most clearly useful.

The phrase “for financial institutions” isn’t standing in for another

phrase. It’s not a pronoun like “she” or “it,” a relative pronoun like

“that” in certain sentences, or a demonstrative adjective like “such”

or “these.” The canons are useful because they reflect “presump-

tions about what an intelligently produced text conveys.” Id. at

1319 (quoting Scalia & Garner, supra, at 51). But we are outside the

heartland of the last-antecedent canon’s most fundamental

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22-10811 Opinion of the Court 21

presumption—that a pronoun or other stand-in refers back to the

closest noun.

Of course, the last-antecedent principle goes beyond pro-

nouns, but even this more robust version of the principle as re-

flected in the nearest-reasonable-referent canon doesn’t do much

work here. The closest referent to “for financial institutions” in the

contract is “strategy planning”—“banking finance, accounting, risk

and systems analysis, design and implementation, asset recovery

and strategy planning for financial institutions.” But ECB concedes

that, at the very least, the phrase “for financial institutions” applies

to “asset recovery” too. That is, ECB concedes that the phrase ap-

plies to more than the nearest reasonable referent.

ECB’s concession is well taken. By conceding that “for finan-

cial institutions” cannot apply to only “strategy planning,” ECB rec-

ognizes that “asset recovery and strategy planning” are parallel

terms. And no version of the last-antecedent canon or nearest-rea-

sonable-referent canon applies when the syntax involves “a parallel

series of nouns or verbs.” Scalia & Garner, supra, at 152. In light of

its concession, ECB is not really arguing that the last-antecedent

canon or nearest-reasonable-referent canon solves the interpretive

problem here. Instead, it is arguing that we should apply a limited

version of the series-qualifier canon—viewing “asset recovery and

strategy planning” as a series that is separate from the rest of the

nouns in the phrase.

Second, as indicated by ECB’s concession, we are within the

heartland of the series-qualifier canon. To start, the parts of speech

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22 Opinion of the Court 22-10811

to which the series-qualifier canon applies are present here. “When

there is a straightforward, parallel construction that involves all

nouns or verbs in a series, a prepositive or postpositive modifier

normally applies to the entire series.” Id. at 147. Here, we have a

parallel construction in a series that is followed by a postpositive

qualifier—“for financial institutions.” The contract has a list of

nouns separated only by commas, with no additional words like

prepositions, articles, or conjunctions within the middle of the list;

so these terms are in parallel. The parallel nature of the terms links

them together so that the postpositive modifier “for financial insti-

tutions” can naturally apply to every item in the list, not just the

last one or two.

For its part, ECB argues that “asset recovery and strategy

planning” should be treated differently than the other items in the

list because there is no comma between “asset recovery” and “and

strategy planning” or between “strategy planning” and “for finan-

cial institutions.” We aren’t convinced.

Certainly, the presence of a comma before “for financial in-

stitutions” would establish with more certainty that it applies

across every term in the list. See, e.g., Facebook, Inc., 592 U.S. at 403–

04 (recognizing that the presence of a comma suggests a phrase ap-

plies across all terms); Gudgeon, 342 A.2d at 555–56 (“Where a

comma is used to set a modifying phrase off from previous phrases,

the modifying phrase applies to all the previous phrases, not just

the immediately preceding phrase.”); Morella, 917 A.2d at 831

(“[T]he use of a ‘comma’ to separate a modifier from an antecedent

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22-10811 Opinion of the Court 23

phrase indicates an intent to apply the modifier to all previous an-

tecedent phrases.” (citations omitted)). But the absence of the

comma doesn’t necessarily mean that “for financial institutions”

fails to apply to every term. Although “commas at the end of series

can avoid ambiguity, . . . [the] use of such commas is discretion-

ary.” United States v. Bass, 404 U.S. 336, 340 n.6 (1971) (citing Bergen

Evans & Cornelia Evans, A Dictionary of Contemporary American Us-

age 103 (1957); Margaret Nicholson, A Dictionary of American-English

Usage 94 (1957); Roy H. Copperud, A Dictionary of Usage and Style

94–95 (1964); William Strunk & E.B. White, The Elements of Style 1–

2 (1959)).

Likewise, we can’t discern any meaning in the absence of a

comma between “asset recovery” and “and strategy planning.”

The comma before “asset recovery” is simply a serial comma, like

all the other commas in the phrase. The last serial comma that

should go between “asset recovery” and “and strategy planning”—

a so-called Oxford comma—is often dropped at the end of a list.

There isn’t any ambiguity about whether the “and” before “strat-

egy planning” indicates that “strategy planning” closes the list—it

does. So there’s no reason to believe that New Jersey courts would

import meaning into the absence of an Oxford comma in this sen-

tence. See Perez v. Zagami, LLC, 94 A.3d 869, 874 (N.J. 2014) (“Alt-

hough not to be entirely ignored, punctuation cannot be allowed

to control the meaning of the words chosen to voice the intention.”

(quoting Casriel v. King, 65 A.2d 514, 516 (N.J. 1949))).

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24 Opinion of the Court 22-10811

Third, in addition to these canons, Chubb’s reading is more

consistent with the surrounding language. Recall that the insur-

ance policy covers liability arising out of “[m]anagement consult-

ing services.” Then, the contract defines “[m]anagement consult-

ing services [to] mean[] services directed toward expertise in bank-

ing finance, accounting, risk and systems analysis, design and im-

plementation, asset recovery and strategy planning for financial in-

stitutions.”

ECB’s reading does violence to the overall text in two key

respects. To begin, if “for financial institutions” doesn’t apply to

“accounting,” then it doesn’t really limit anything at all. All con-

sulting about asset recovery or strategy planning would presuma-

bly reflect at least some “expertise in . . . accounting.” Because any

consulting service that would be provided to a business could re-

flect expertise in “accounting,” ECB’s reading would defeat the

purpose of having a “financial institutions” limitation on any of the

terms. Moreover, if “for financial institutions” didn’t apply to the

whole list, certain consulting services like “banking finance,” “asset

recovery . . . for financial institutions,” and “strategy planning for

financial institutions” would be bounded by a relationship to fi-

nance and banks—but other services like “accounting” would be

completely unrelated to the industry of the firm’s client. Con-

versely, applying “for financial institutions” to all the terms gives

meaning to the “for financial institutions” limitation and makes

sense when the phrases are viewed together as a group.

***

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22-10811 Opinion of the Court 25

Chubb’s view is far more likely to reflect the meeting of the

minds. Because applying “for financial institutions” across all terms

is consistent with the general rule of the series-qualifier canon—

which grammatically applies best here—and makes far more sense

in context, that is the plain meaning of the contract’s language.

“The two possible readings thus reduce to one . . . .” Pulsifer v.

United States, 144 S. Ct. 718, 737 (2024).

B.

In response to this reasoning, ECB argues that this contract

is ambiguous and that it should, therefore, win under the contra

proferentem canon. The contra proferentem canon provides that

courts should read an ambiguous contract to have the meaning

that favors the non-drafting party. See Oxford Realty Grp. Cedar, 160

A.3d at 1270. When an insurance company drafts an insurance con-

tract, the contra proferentem canon requires resolving ambiguities in

an insurance contract in favor of the insured. See id.

Although the contra proferentem canon is a well-established

part of New Jersey law, it doesn’t help ECB for two reasons.

First, this contract is not genuinely ambiguous. See Pacifico

v. Pacifico, 920 A.2d 73, 78 (N.J. 2007). Under New Jersey law, “only

genuine interpretational difficulties will implicate the doctrine that

requires ambiguities to be construed favorably to the insured.” Pro-

gressive Cas. Ins. Co., 765 A.2d at 202 (citing Am. White Cross Lab’ys,

Inc. v. Cont’l Ins. Co., 495 A.2d 152, 157 (N.J. Super. Ct. App. Div.

1985)). “A ‘genuine ambiguity’ arises only ‘where the phrasing of

the policy is so confusing that the average policyholder cannot

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26 Opinion of the Court 22-10811

make out the boundaries of coverage.’” Id. (quoting Weedo v. Stone-

E-Brick, Inc., 405 A.2d 788, 795 (N.J. 1979)). Some difficulty in deter-

mining the answer to a legal question does not equate to ambigu-

ity. See Kisor v. Wilkie, 588 U.S. 558, 574–75 (2019).

ECB argues, and it is true, that some New Jersey precedents

say that “[i]f the terms of the contract are susceptible to at least

two reasonable alternative interpretations, an ambiguity exists.”

Chubb Custom Ins. Co., 948 A.2d at 1289 (citing Nester v. O’Donnell,

693 A.2d 1214, 1220 (N.J. Super. Ct. App. Div. 1997)). But there are

not two reasonable alternative interpretations of this contract lan-

guage. As the Supreme Court of New Jersey has recognized, “[a]n

insurance policy is not ambiguous merely because two conflicting

interpretations of it are suggested by the litigants.” Oxford Realty

Grp. Cedar, 160 A.3d at 1270 (internal quotation marks omitted)

(quoting Fed. Ins. Co. v. Campbell Soup Co., 885 A.2d 465, 468 (N.J.

Super. Ct. App. Div. 2005)). Instead, as we’ve explained, one reading

of this contract is superior to the other.

In short, we do not jump straight to contra proferentem if we

can determine the contract’s meaning without it. A court may ap-

ply that canon only “after a court has examined the terms of the

contract, in light of the common usage and custom, and considered

the circumstances surrounding its execution.” Pacifico, 920 A.2d at

78. Only “[i]f, at that time, the court is unable to determine the

meaning of the term, [may] contra proferentem [] be employed as a

doctrine of last resort.” Id. (emphasis added). Because we can read-

ily interpret this contract in light of its text, there is no genuine

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22-10811 Opinion of the Court 27

interpretational difficulty, and we need not and cannot turn to con-

tra proferentem.

Second, even if there were a genuine interpretational dis-

pute such that the contra proferentem canon could apply to this con-

tractual text, it would not apply to an insurance contract between

these sophisticated commercial entities. The Supreme Court of

New Jersey has held that “the rules tending to favor an insured that

has entered into a contract of adhesion are inapplicable where, as

here, both parties are sophisticated commercial entities with equal

bargaining power.” Chubb Custom Ins. Co., 948 A.2d at 1294 (citing

Pacifico, 920 A.2d at 78–79) (stating that New Jersey case law “re-

quir[es] unequal bargaining power for application of contra

proferentem” (citing Pacifico, 920 A.2d at 78–79)); see also Oxford Re-

alty Grp. Cedar, 160 A.3d at 1270 (“Sophisticated commercial in-

sureds, however, do not receive the benefit of having contractual

ambiguities construed against the insurer.” (citing Chubb Custom

Ins. Co., 948 A.2d at 1294; Werner Indus., Inc. v. First State Ins. Co.,

548 A.2d 188, 192 (N.J. 1988))).

We have no doubt that Constantin—the accounting firm in-

sured under this contract—is a sophisticated commercial entity

that had many different options to purchase liability insurance. It

may be, as ECB argues, that the former New Jersey branch of Con-

stantin was a relatively small office with few employees, but size

does not necessarily equate to a lack of commercial sophistication.

Even that smaller office was composed of accounting professionals,

and those professionals specifically asked for an insurance policy

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28 Opinion of the Court 22-10811

that would cover risks arising from “management consulting for

the financial community.” Because Constantin was offering its ser-

vices and expertise to help its clients manage risk, it stands to rea-

son that it was sophisticated enough to manage its own.

IV.

We AFFIRM the district court’s grant of summary judg-

ment.