United States Court of Appeals, First Circuit.
Wendy P. Solovay, Boston, with whom Marshall F. Newman and Newman & Newman, P.C., Boston, were on brief for appellants.8
 Brian R. Merrick with whom Burke, Wieners, Moran, Hurley & Merrick, Boston, was on brief for appellee.9
Before COFFIN, BREYER and TORRUELLA, Circuit Judges.10
Thomas Mundy, an assistant district attorney of Suffolk County, Massachusetts, and his wife, Madelon, have sued their insurer in an effort to recover the actual value of some silver that was stolen from their home. Since the policy in effect at the time of the burglary limited recovery for loss of silverware to $1000, the company refused to pay them any more. The Mundys noted, however, that an earlier policy had not contained such a limit. They argued that the company did not give them adequate notice of the change when it sent them the policy renewal. And, this failure, in their view, entitles them to recovery under state law theories of contract, tort or unfair trade practice.12
The district court granted the company's motion for summary judgment, for the court believed that the record showed — beyond genuine dispute — that the company's notice was adequate. The Mundys now appeal that decision.13
The Mundys say in their brief that the "declarations page" of the policy (which they received) said nothing about the change, though "apparently ... there was buried in the fine print of the policy a limitation of $1,000.00 with respect to a loss of silverware." The policy itself, however, tells a rather different story.14
Mundy testified that Exhibit 4 was the very policy he received "in the form in which [he] ... received it." On the jacket (apparently the inside cover) is a table of contents. The page also contains five short sentences in capital letters at its bottom. Four of those sentences read as follows:15
THIS IS A NEW EASY TO READ POLICY. PLEASE READ YOUR POLICY. THERE ARE SOME COVERAGE CHANGES. IF THERE ARE ANY QUESTIONS, CALL YOUR AGENT OR THE COMPANY RIGHT AWAY.16
There follows a declarations page containing the cost of premiums for coverages in effect. The declarations page is followed by two slips of paper (about half the ordinary page size) each with one or two sentences (about inflation protection and nonresidential theft). Then, there is a one-page summary of the changes made. Each change noted in the summary is in a separate paragraph, set off from the others by added space and black dots. The relevant paragraph says:17
Theft of silverware and guns is now limited to $1,000. Should you wish more coverage for such items, contact your agent.18
The remainder of the booklet consists of the twelve-page policy itself. On page 2, the policy says:19
Special Limits of Liability ...20
7. $1000 for loss by theft of silverware, silverplated ware, goldware, gold-plated ware and pewterware.21
The whole policy is written in readable English in good-sized print with certain words, such as "Special Limits of Liability," set off in boldface type.22
We find nothing in the record that fairly can be read as disputing these facts. Mundy at one point said that the summary of changes was stapled "somewhere" in the policy; but the word "somewhere" is consistent with his concession that Exhibit 4 presents the pages in the proper order. As the district court noted, these facts bring this case well within the scope of Epstein v. Northwestern National Insurance Co., 267 Mass. 571, 166 N.E. 749 (1929), which binds an insured by the terms of a renewal insurance policy as long as he receives it.23
The Mundys argue that Epstein is now out of date and a minority position. As Mundy recognized, these are not adequate reasons for disregarding Massachusetts case law. Nor do we believe the question should be certified to the Massachusetts Supreme Judicial Court, Mass.S.J.C. Rule 1:03, for, in any event, the Mundys cannot prevail. The facts here make this case  very similar to GEICO v. United States, 400 F.2d 172, 175 (10th Cir.1968), where even "a casual reading of the mailed material" would have given the plaintiffs adequate notice. And, we find nothing in the cases they cite from other jurisdictions that would require a different result. Compare Noyes Supervision, Inc. v. Canadian Indemnity Co., 487 F.Supp. 433, 436 (D.Colo.1980) (endorsement not added until after loss); Giles v. St. Paul Fire & Marine Ins. Co., 405 F.Supp. 719, 725-26 (N.D.Ala.1975) (coverage change not included in summary of changes, therefore insurer bound by original policy as modified according to summary); Pennsylvania Millers Mutual Ins. Co. v. Dunlap, 153 Ga.App. 116, 264 S.E.2d 483 (1980) (endorsement limiting liability for silverware not received); Industro Motive Corp. v. Morris Agency, Inc., 76 Mich.App. 390, 256 N.W.2d 607 (1977) (insurer estopped from relying on 20 percent coverage limitation in policy because of affirmative representations that insured was 50 percent covered); Canadian Universal Ins. Co. v. Fire Watch, Inc., 258 N.W.2d 570, 574 (Minn.1979) (undisputed that no notice given); Bauman v. Royal Indemnity Co., 36 N.J. 12, 174 A.2d 585, 591-92 (1961) (insured not bound by terms of renewal policy unless notice that there are changes in coverage is given); Aetna Ins. Co. v. Lythgoe, 618 P.2d 1057 (Wyo. 1980) (no dispute that insured's attention was not specifically directed to coverage change).24
The judgment of the district court is25
Affirmed. Double costs to Appellee.
Supreme Court of Wisconsin.
 For the plaintiff-appellant-petitioner there were briefs by David M. Erspamer and Erspamer Law Office, Amery and oral argument by David M. Erspamer.9
For the defendant-respondent there was a brief by Mark E. Coe and Coe, Dalrymple, Heathman, Coe & Zabel, S.C., Rice Lake and oral argument by Mark E. Coe.10
This is a review of an unpublished decision of the court of appeals filed on January 20, 1993, affirming a judgment of the circuit court for Barron County, Edward R. Brunner, Circuit Judge. The circuit court granted summary judgment to Monkem Company, the defendant, dismissing the complaint with prejudice. It held that the form signed by Jerilyn Richards, the plaintiff, was an exculpatory contract that was not void or unenforceable as contrary to public policy. It further held that the plaintiff's claim for injuries suffered while riding as a passenger in a truck operated by Leo Richards, her husband, and owned by Monkem Company, her husband's employer, was clearly within the contemplation of the parties at the time the exculpatory contract was executed. The circuit court thus foreclosed the plaintiff's claim as a matter of law. The court of appeals affirmed the judgment of the circuit court. We reverse and remand for further proceedings.12
The issue before this court is whether the form the plaintiff executed constitutes a valid exculpatory contract releasing the plaintiff's claims against Monkem Company, thereby barring this lawsuit. This issue arose in a motion for summary judgment, and this  court is reviewing a decision affirming the summary judgment. Therefore the standard of review is the same as the standard used by the circuit court to determine whether to grant the motion for summary judgment. Dobratz v. Thomson, 161 Wis.2d 502, 513, 468 N.W.2d 654 (1991). If an exculpatory contract is found to be invalid on its face, the defendant's motion for summary judgment will be denied. Dobratz v. Thomson, 161 Wis.2d at 526. Thus, this court must determine whether, as a matter of law, the form was a valid exculpatory contract that bars the plaintiff's claim.14
We conclude that the form at issue here is an exculpatory contract void as against public policy. As is often the case, neither a prior decision of the court nor the facts of a prior case is directly on point. An examination of the principles underlying the determination of the validity of exculpatory contracts leads us to the conclusion that the form is an unenforceable exculpatory contract due to a combination of three factors. None of these factors alone would necessarily invalidate the release; however, taken together they demand the conclusion that the contract is void as against public policy. First, the contract serves two purposes, not clearly identified or distinguished. Second, the release is extremely broad and all-inclusive. Third, the release is in a standardized agreement printed on the Company's form, offering little or no opportunity for negotiation or free and voluntary bargaining.16
The facts relevant to our determination of the validity of the form as an exculpatory contract are not in dispute. In February of 1990, Leo Richards was hired by Monkem Company as an over-the-road truck driver. Shortly thereafter, the plaintiff and her husband discussed the possibility of her riding as a  passenger with him. Before the plaintiff could accompany her husband, however, Monkem Company required that she sign a form entitled "Passenger Authorization," and she did so on or about May 22, 1990.17
The "Passenger Authorization" form used by Monkem Company appears to have two purposes. First, it served as Monkem Company's authorization to the passenger to ride in a company truck. Second, it serves as a passenger's general release of all claims against the Company. The language of release attempts to transform the "Passenger Authorization" form into an exculpatory contract relieving Monkem Company and all of its affiliated companies, partnerships, individuals and corporations (as well as others) from any and all liability for harm to the person signing the form. See Merten v. Nathan, 108 Wis.2d 205, 210, 321 N.W.2d 173 (1982). The form reads as follows: 18
 In addition, the form contains an insert asking for the passenger's height, weight, hair color, eye color, driver's license number, and social security number. The appropriate information about the plaintiff was inserted on the form. The release was signed by Leo Richards as driver, Jerilyn Richards as passenger, and C.L. McCarley, Director of Risk Management for Monkem Company.19
On June 14, 1990, the plaintiff accompanied her husband on one of his scheduled trips. When the truck, negotiating a left curve, overturned, the plaintiff was pinned inside the vehicle. The injuries she sustained as a result of this accident are the basis for the current lawsuit.20
The principles applicable to the determination of the validity of exculpatory contracts were recently set forth by the court in Dobratz v. Thomson, 161 Wis.2d 502, 514-20, 468 N.W.2d 654 (1991), which incorporated, explained, and elaborated on the principles set forth in several earlier cases. See, e.g., Discount Fabric House v. Wisconsin Telephone Co., 117 Wis.2d 587, 345 N.W.2d 417 (1984) (contract releasing liability of telephone company for negligent omission of and from yellow pages); Arnold v. Shawano Co. Agr. Socy, 111 Wis.2d 203, 330 N.W.2d 773 (1983) (contract releasing liability of race track to driver), overruled on other grounds, Green Spring Farms v. Kersten, 136 Wis.2d 304, 314, 401 N.W.2d 816 (1987); Merten v. Nathan, 108 Wis.2d 205, 321 N.W.2d 173 (1982) (contract releasing liability of horseback riding school to pupil); and College Mobile Home Park & Sales v. Hoffmann, 72 Wis.2d 514, 241 N.W.2d 174 (1976) (contract releasing liability of landlord to tenant).21
We now reiterate several of the principles from these cases which are relevant to the case at bar. Exculpatory contracts are not favored by the law because they tend to allow conduct below the acceptable standard of care applicable to the activity. Exculpatory contracts are not, however, automatically void and unenforceable as contrary to public policy. Arnold v. Shawano Co. Agr. Socy, 111 Wis.2d 203, 209, 330 N.W.2d 773 (1983), overruled on other grounds, Green Spring Farms v. Kersten, 136 Wis.2d 304, 314, 401 N.W.2d 816 (1987); Dobratz v. Thomson, 161 Wis.2d 502, 514, 468 N.W.2d 654 (1991). Rather, a court closely examines whether such agreements violate public policy and construes them strictly against the party seeking to rely on them. Merten v. Nathan, 108 Wis.2d 205, 211, 321 N.W.2d 173 (1982).23
In determining whether an exculpatory agreement violates public policy and is therefore void, courts recognize that public policy is not an easily defined concept. The concept embodies the common sense and common conscience of the community. Public policy is that principle of law under which "freedom of contract is restricted by law for the good of the community." Merten v. Nathan, 108 Wis.2d 205, 213, 321 N.W.2d 173 (1982) (quoting Higgins v. McFarland, 86 S.E.2d 168, 172 (Va. 1955). An exculpatory agreement will be held to contravene public policy if it is so broad "that it would absolve [the defendant] from any injury to the [plaintiff] for any reason." College Mobile Home Park & Sales v. Hoffmann, 72 Wis.2d 514, 521-22, 241 N.W.2d 174 (1976). See also Arnold v. Shawano Co.Agr.Socy, 111 Wis.2d 203, 210, 330 N.W.2d 773 (1983), citing College Mobile Home Park with approval. In Dobratz v.  Thomson, 161 Wis.2d 502, 520, 468 N.W.2d 654 (1991), a unanimous court, striking down an overly broad release, stated that "this court will not favor an exculpatory contract that is broad and general in its terms."25
In reviewing an exculpatory agreement for violation of public policy, a court attempts to accommodate the tension between the principles of contract and tort law that are inherent in such an agreement. The law of contract is based on the principle of freedom of contract; people should be able to manage their own affairs without government interference. Freedom of contract is premised on a bargain freely and voluntarily made through a bargaining process that has integrity. Contract law protects justifiable expectations and the security of transactions. The law of torts is directed toward compensation of individuals for injuries resulting from the unreasonable conduct of another. Tort law also serves the "prophylactic" purpose of preventing future harm; tort law seeks to deter certain conduct by imposing liability for conduct below the acceptable standard of care. Merten v. Nathan, 108 Wis.2d 205, 211-212, 214, 321 N.W.2d 173 (1982).26
Applying these principles to this case we conclude that the exculpatory contract at issue is void as against public policy. In this case, the public policy "of imposing liability on persons whose conduct creates an unreasonable risk of harm" outweighs the public policy of "freedom of contract." Merten v. Nathan, 108 Wis.2d 205, 215, 321 N.W.2d 173 (1982). Accordingly we conclude that it would be contrary to public policy to enforce the exculpatory language in Monkem Company's "Passenger Authorization" form. A combination of three factors in this case leads us to this conclusion.27
First, the contract serves two purposes, not clearly identified or distinguished. As we stated previously, those purposes appear to be: (1) the Company authorizes the passenger to ride in a Company truck, and (2) the passenger releases the Company and others from liability. This dual function, however, is not made clear in the title of the contract; the form is designated merely as a "Passenger Authorization." The written terms clearly state that the document is a release of liability. A person signing a document has a duty to read it and know the contents of the writing. State Farm Fire & Casualty Co. v. Home Ins. Co., 88 Wis.2d 124, 129, 276 N.W.2d 349 (Ct. App. 1979). Nevertheless it is not reasonably clear to the signer of a form entitled "Passenger Authorization" that the document would in reality be the passenger's agreement to release the Company (and others) from liability. Rather the title "Passenger Authorization" implies that only the Company is making the concessions and only the Company is bound. We conclude that in this case the release should have been conspicuously labelled as such to put the person signing the form on notice. Moreover, to prevent confusion under these circumstances, the passenger's release of the Company from liability should have been carefully identified and distinguished from the Company's authorization for a passenger to ride along. Identifying and distinguishing clearly between those two contractual arrangements could have provided important protection against a signatory's inadvertent agreement to the release.29
Second, the release is extremely broad and allinclusive. It purports to excuse intentional, reckless, and negligent conduct not only by the Company but by  another entity (Joplin Hiway, Inc.) and by all affiliated, associated, or subsidiary companies, partnerships, individuals, or corporations, and all other persons, firms or corporations. Further, although the passenger's release is combined with the Company's authorization to the plaintiff to ride in a specified Company vehicle during a specified period, the release does not refer to an injury the plaintiff may sustain while riding as a passenger in the specified Company vehicle during the specified time period. It purports to release the Company from liability for any and all injury to the plaintiff while the plaintiff is a passenger in any vehicle (not necessarily one owned by the Company) at any time and while the plaintiff is on any and all Company property at any time. The release, unlike the authorization, is not limited to a specified vehicle or to a specified time period. Had the Company intended that it be released from liability to the plaintiff while she was riding with her husband in the Company truck during the period the Company authorized, that is not what the release says. The very breadth of the release raises questions about its meaning and demonstrates its one-sidedness; it is unreasonably favorable to the Company, the drafter of the contract.31
With respect to overly broad releases, three lines of cases have developed. In College Mobile Home Park & Sales v. Hoffmann, 72 Wis.2d 514, 241 N.W.2d 174 (1976), the court concluded that an exculpatory contract contravenes public policy when it would absolve the tortfeasor from any injury to the victim for any reason. In Arnold v. Shawano Co. Agr. Socy, 111 Wis.2d 203, 330 N.W.2d 773 (1983), the court remanded the summary judgment case to the circuit court to determine at trial whether the accident was within the contemplation of the parties to a release which the  court characterized as broad and ambiguous. In contrast, in Dobratz v. Thomson, 161 Wis.2d 502, 468 N.W.2d 654 (1991), the court struck down on summary judgment a broad release on the ground that it was ambiguous and unclear, and that, as a matter of law, no contract was formed. The facts of the three cases are different and determined the outcomes. In regard to the issue of overly broad releases, however, the court's resolution of the effect of the overly broad releases in College Mobile Home Park & Sales and Dobratz is more pertinent to the very broad and inclusive release in the case at bar than is the court's treatment of the more limited release in the Arnold case.32
Third, this contract is a standardized agreement on the Company's printed form which offers little or no opportunity for negotiation or free and voluntary bargaining. According to the record, when the Company forwarded the form to the plaintiff its cover letter did not advise her that the document was a release of all claims and did not advise her of the legal significance attached to her signing of the document. The employee handbook advised employees that Company authorization was needed for a passenger to ride along but did not advise employees that the passenger would have to release all claims against the Company.34
The fact that a release is printed in a standardized form is not, by itself, enough to invalidate it. However, the plaintiff's lack of an opportunity for discussing and negotiating the contract is significant when considered with the breadth of the release. If her plans to ride with her husband were to go forward, the plaintiff simply had to adhere to the terms of the written form. While the Company had the time and resources to draft the provisions and plan their effect, the plaintiff did not.  Had the plaintiff been afforded the opportunity to negotiate a release, she might have declined to release the Company from liability for intentional or reckless actions or the driver's negligence, or from liability for its defective equipment. Because the Company probably derives some benefit from allowing family members to join drivers on the road, such as improving employee morale, the Company might not necessarily have rejected such proposals out of hand.35
As we have said, none of these factors alone would necessarily have warranted invalidation of the exculpatory contract. Under the circumstances in the case at bar, a combination of these factors demonstrate that adherence to the principle of freedom of contract is not heavily favored. The principle of tort law, to compensate persons for injuries resulting from unreasonable conduct of another, prevails. Accordingly, we conclude that the document contravenes public policy and is void and unenforceable. The decision of the court of appeals is reversed and the cause remanded for proceedings not inconsistent with this opinion.36
By the Court.—The decision of the court of appeals is reversed and the cause remanded to the circuit court.37
Leo J. Richards (Mr. Richards) was a truck driver in the employ of Monkem Company, a trucking company. Jerilyn Richards (Mrs. Richards), his wife, wished to travel in the truck with Mr. Richards during one of his trips. The release at issue was signed by Mrs. Richards and her husband as a condition for allowing Mrs. Richards to travel with her husband while he drove a truck owned by Monkem Company. The release was broad, but it was clearly within the contemplation of the parties that the release  would cover an injury to Mrs. Richards while riding as a passenger in the truck during an accident caused by her husband's negligence.39
The majority opinion lists three reasons which purportedly require invalidation of the release as a matter of law. The reasons given are: (1) "the contract serves two purposes, not clearly identified or distinguished"; (2) "the release is extremely broad and allinclusive"; (3) "the release is in a standardized agreement printed on the Company's form, offering little or no opportunity for negotiation or free and voluntary bargaining." 181 Wis. 2d at 1011. I dissent as to each reason given by the majority opinion for invalidating this release, and I dissent as to their application in "combination."40
I agree that exculpatory releases are not generally favored and, therefore, will be construed strictly. Arnold v. Shawano County Agr. Society, 111 Wis. 2d 203, 209, 330 N.W.2d 773 (1983); Dobratz v. Thomson, 161 Wis. 2d 502, 514, 468 N.W.2d 654 (1991). However, the fact that exculpatory releases are "not favored" does not mean that the majority should invent new "rules" without precedent or support. None of the reasons cited by the majority justifies summary invalidation of this release. This the majority admits. Nor is summary invalidation of this release justified by these "reasons" in some unspecified "combination." Whether in "combination" or not, reasons (1) and (3) are "rules" created in this opinion, and reason (2) does not lead to automatic invalidation. The whole is not more than the sum of the parts here. None of these rationales justifies invalidation of the release as a "matter of law," and the facts of this case neither warrant nor support the rules created by the majority, whether applied singly or in combination. I would hold  that the release should be enforced to the extent it covers what was clearly contemplated by the parties when executing the release. The accident which occurred was clearly the kind of occurrence contemplated in the release.41
The first reason given by the majority opinion for invalidating the release as against "public policy" is that the release "serves two purposes." 181 Wis. 2d at 1011. There is no such "rule," however. No legal authority is cited by anyone, neither the parties nor the majority opinion, to support such a rule. Quite simply, this "rule" appears for the first time in the majority opinion. Moreover, this new "rule" conflicts with legal precedent and serves no practical purpose.42
The majority opinion disapproves the fact that the release serves not only to release claims against the company but that it also serves to document the company's authorization of a passenger. However, a release in the present circumstances is best viewed as condition that must be met before permission is granted. Since permission is not given until the condition is met, the release must necessarily serve two purposes. By definition, it serves both to release claims and to satisfy a condition for permission. The signed release merely documents that the condition has been met.43
This practice is quite common. Many cases have enforced releases which serve both to release claims and to document that permission has been granted upon satisfaction of the condition. For instance, most jurisdictions routinely enforce releases which were the condition for granting permission to applicants and participants in races and other recreational activities. See, Hammer v. Road America, Inc., 614 F. Supp. 467, 470 (E.D.Wis. 1985), aff'd., 793 F.2d 1296 (7th Cir.  1986); Arnold, 111 Wis. 2d at 213 n.4. Both Arnold and Merten v. Nathan, 108 Wis. 2d 205, 321 N.W.2d 173 (1982), involved releases which then served as conditions for participation. Neither of those opinions indicates any problem with that fact. Quite simply, there is no rule that a release "serving two purposes" must be invalid. There is no rule that a release "serving two purposes" is even presumptively invalid.44
The only way that "serving two purposes" could lead to invalidation of a release is if "serving" the second purpose made an otherwise clear release unclear. For instance, one can conceive of a situation in which the addition of information extraneous to the release is interwoven with the language of the release in such a way that the release itself is made unclear. The release would therefore be unenforceable to the extent it was rendered unclear. see Arnold, 111 Wis. 2d at 211. Problems would also arise if a phrase or two containing release language were buried within a document otherwise devoted to matters unrelated to the release, so that it became unclear that a release was even contained within the document. See, e.g. Restatement (Second) of Torts § 496B, Comment C. Neither of these situations is present here, however.45
Mrs. Richards complained that the release was invalid as a matter of law because the release document also served to satisfy federal requirements for information about passengers authorized to accompany truck drivers. However, as discussed above, there is no rule of law which suggests that a signed release may not be used to serve any number of purposes. Nor is there any reason why a document containing a release may not solicit other information from the signatory so long as the release itself remains clear.46
 The majority opines that "to prevent confusion under these circumstances, the passenger's release of the Company from liability should have been carefully identified and distinguished from the Company's authorization for a passenger to ride along." 181 Wis. 2d at 1017. However, besides the fact that there was no evidence of confusion in the record, there is no basis in fact or in law to even claim confusion in this case.47
First, the release itself was clearly a release by its terms, and its function as a release was not obscured by the addition of a separate section asking for identification information about the passenger.48
The "PASSENGER AUTHORIZATION" is a one-page document consisting of two sections. The first section is entitled: "FULL AND FINAL RELEASE ..." followed by the body of the release. The body of the release occupies approximately § 23 of the page and is written in capital lettering. The word "RELEASE" appears no less than four times in the release. In fact, no other single word with more than four letters appears more often in the release than the word "RELEASE"; only the name "MONKEM COMPANY" appears as many times as the word "RELEASE" in the release. The title to the release uses the word "RELEASE"; the final sentence before the signature portion of the release uses the word "RELEASE"; and the word "RELEASE" appears prominently in both of the two intervening paragraphs of the release. The final sentence of the release, located just above the space where the passenger applicant and driver are to sign, states: "THIS PERMISSION IS GIVEN ONLY UPON FULL UNDERSTANDING OF THE ABOVE RELEASE AND IS ACCEPTED AND EXECUTED AND ACKNOWLEDGED BY SIGNATURE OF THE PERSON BELOW:". Both Mrs. Richards and her husband  signed the release in the appropriate space immediately following that statement.49
The second section of the document, entitled, "PASSENGER INFORMATION," is located in the lower right hand corner of the document. It consists of entry blanks for the height, weight, hair color, eye color, driver's license number and social security number of the passenger. It occupies less than two square inches of space on the document. This section is clearly neutral, if not innocuous.50
Any claim that the presence of the passenger information section could confuse anyone into believing that the rest of the document ceased to be a release is completely untenable. It is especially untenable when alleged by someone such as Mrs. Richards who did not even read or fill-out the passenger information section. See, footnote number 1, infra.51
The majority concedes that the facts relevant to the determination of the validity of the release are not in dispute. 181 Wis. 2d at 1011. Those undisputed facts include the following:52
Mrs. Richards claims in her brief that it was "undisputed that despite reasonable diligence by the plaintiff to find out the purpose of this agreement, she did not know and was not advised that the agreement was an exculpatory contract." And she claims that she "went through efforts to find out the reason for the agreement." Her "efforts," however, evidently did not include reading the release itself. Mrs. Richards' deposition testimony indicates that she did not read much of the document and did not read carefully those parts she may have read. Her efforts did not include asking the company any questions or even indicating any dissatisfaction  with the release. Her efforts did not  include reading the memo from the company carefully, and her efforts did not include contacting the Director of Risk Management referred to in the employee [student] handbook. Thus, when the majority opinion argues that "it is not reasonably clear to the signer of a form entitled `Passenger Authorization' that the document would in reality be the passenger's agreement to release the Company (and others) from liability," 181 Wis. 2d at 1017 it refers to no more than Mrs. Richards herself remembers reading carefully, namely, the first two words at the top of the document.53
 I agree with the court of appeals when it concludes that, "Jerilyn's assertions that she did not understand the language of the exculpatory contract but signed it anyway are insufficient to invalidate its effect. Failure to read or understand a contract will generally not affect its validity because a court will not protect a person who fails to take reasonable steps for her own protection." Richards v. Richards, 173 Wis. 2d 908, 499 N.W.2d 301 (Table), 1993 WL 8053 (Wis. App.), p. 2, (Unpublished Opinion). There is no reason why this court should credit Mrs. Richards' claim that she was or even could have been somehow confused about this being a release.54
Nor is it credible on the facts as alleged to suggest or imply that Mr. Richards was somehow confused. As his deposition indicates, he knew that the Passenger Authorization contained a release. He knew that the release was required because Monkem Company was worried about accidents involving passengers. He admits that he did not read the release before signing it, and he admits that he did not ask anyone at Monkem Company to clarify it for him. There is no clear evidence that he read the student handbook carefully as to this issue, much less that he was, or in any way could have been, confused that this was a release. Rather he admits that all drivers knew ahead of time about the requirements. Thus, clearly, if Mrs. Richards  was confused because she relied upon Mr. Richards' explanations of the release without really reading the release and without asking the company for clarification, that is her fault, and not any confusion caused by Monkem or the structure or wording of the document, as a matter of law.55
The second reason given for invalidation of the release by the majority opinion is that the release is "extremely broad and all-inclusive." 181 Wis. 2d at 1011. I agree that the release is very broad. However, it is not the law in Wisconsin that just because a release is "extremely broad and all-inclusive" that it is automatically  void as against public policy. This court held in Arnold, 111 Wis. 2d at 211, that the rule on broad and general exculpatory releases is as follows: "Exculpatory agreements that are broad and general in terms will bar only those claims that are within the contemplation of the parties when the contract was executed."56
It must be emphasized that Mrs. Richards does not argue that the release was so obtuse that it could not be understood. Rather, Mrs. Richards argues that the release should be invalid because it is overbroad. Mrs. Richards complains that, "[i]t was simply impossible for the parties to contemplate the scope and breadth of the purported damages and actions that they were releasing." That may be true, but this case does not involve any bizarre hypotheticals, and the rule is that the parties will be held to what was clearly contemplated in the situation.57
 Thus the proper question in this context is what was clearly contemplated by the parties. Was it clearly contemplated that the release would cover Monkem? Was it clearly contemplated that the release would cover an accident in which Mrs. Richards was injured while riding as a passenger in the truck? And was it clearly contemplated that this release would prevent Mrs. Richards from recovering against the company for acts of negligence caused by her husband while driving Monkem's truck? The answer to each of these questions is "yes."58
These questions may be determined as a matter of law. In Plummer v. Leonhard, 44 Wis. 2d 686, 692, 172 N.W.2d 1 (1969), citing 76 C.J.S. Release § 72 (1952), this court noted that normally the determination of the intent of the parties to a release, and the scope of a release, are questions of fact for the jury. However, the meaning, construction, and legal effect of a release are questions for determination by the court, where there is no ambiguity in the instrument, or where the evidence in connection with the release is undisputed. Specifically, the construction of a written release as operating to discharge particular claims is a determination made by the court. See, 76 C.J.S. Release § 72 (1952); and Arnold, 111 Wis. 2d at 212.59
As to the first question, Mrs. Richards admits that the release is clear in its intent to release liability as to Monkem. "Obviously," Mrs. Richards writes in her brief, "the release itself purports to excuse negligence not only on behalf of Leo Richards' employer, Monkem Company, but in addition purports to release liability on behalf of some separate entity known as `Joplin Hiway, Inc.'" Her complaint at that point is that the identity of Joplin Hiway, Inc., etc., is not given, and therefore the scope of the release is overbroad. I might  agree that the enforcement of the release as to unknown or undefined entities may or may not be permissible under the terms of this release. That is an open question. However, the fact that the release "obviously" covered Monkem means that was clearly contemplated by the parties and should therefore be enforced to that extent.60
As to the second question, Mrs. Richards argued that the broad language of the release could cover an almost unlimited number of bizarre hypothetical situations and is therefore invalid. However, again, while the release will not be extended beyond those situations clearly contemplated by the parties, the rule of Arnold is that it will be applied to those situations clearly contemplated. The release clearly covers the situation in which the passenger is injured while riding in the truck, and this is precisely what happened to Mrs. Richards.61
As to the third question, I agree with the court of appeals and conclude that it was clearly contemplated that the release obviously covered claims against the company based upon the spouse's negligent driving. Richards v. Richards, 173 Wis. 2d at 908, 1993 WL 8053 (Wis. App.), p. 2, (Unpublished Opinion).62
Applying the rule of Arnold, the release should be enforced to the extent it covers situations clearly contemplated by the parties. I agree with the circuit court and court of appeals that Mrs. Richards clearly contemplated that the release would cover an injury sustained while Mrs. Richards was riding in the truck as a passenger during an accident caused by her husband's negligence, and that Monkem, at least, would be covered.63
How and why the majority avoids the rule of Arnold is unclear. Arnold establishes that exculpatory  clauses, while not favored, will be enforced to the extent they cover situations clearly contemplated by the parties executing the release. Accordingly, the fact that the release in Arnold was broad and ambiguous did not result in invalidation of the release. Instead, the court in Arnold remanded the summary judgment case to the circuit court to determine whether the specific accident which occurred was within the contemplation of the parties to the release.64
The court in Arnold did not say that all questions of what was clearly contemplated must be returned to the circuit court when a release is broad in its terms. Quite to the contrary, the court explicitly noted that certain types of situations may reasonably be concluded were contemplated by the parties. The release in Arnold concerned the activity of racing. The court noted that "it would be reasonable to assume that this exculpatory contract was intended to preclude liability for such things as negligent maintenance of the track or the negligent driving of another driver participant ...." Arnold, 111 Wis. 2d at 212. The court's only concern was that it was unclear whether "rescue operations" were to be covered. Nor did the court say that rescue operations could not be covered by a broad release; rather it held only that it was not clear whether that particular type of situation had been contemplated and remanded for a factual determination on that question.65
Precisely the same analysis should be applied to the present case. Clearly the parties here must be held to have contemplated that the release would cover injuries sustained by Mrs. Richards while riding as a passenger during an accident caused by her husband's negligence. That much was clearly contemplated and should be enforced to that extent. Had Mrs. Richards  been injured in some other way, then we would have to confront whether that situation was clearly contemplated or not. But that is not our case. Thus regardless of how many hypotheticals are engaged to avoid Arnold, that case and the cases subsequent to Arnold still stand for the rule that exculpatory contracts will be enforced to the extent they cover situations clearly contemplated by the parties. Neither Dobratz nor any other decision has repealed that basic rule.66
The majority cites Dobratz for the statement that "this court will not favor an exculpatory contract that is broad and general in its terms." I agree. However, Dobratz does not say that broad and general releases are invalid. Quite to the contrary, Dobratz, 161 Wis. 2d at 521, cites to Arnold and explicitly endorses the analysis and conclusion of Arnold.67
Nor does College Mobile Home Park & Sales provide a legitimate basis to avoid the rule of Arnold. The majority claims that College Mobile Home Park & Sales is "more pertinent" to the present situation than is Arnold. 181 Wis. 2d at 1011. However, the majority does not explain how or why. College Mobile Home Park & Sales cannot be more "pertinent" than Arnold, neither in fact nor in law. On the facts, College Mobile Home Park & Sales concerns the specialized area of landlord-tenant law, an area now covered by statute. The release in Arnold, which is a condition of permission for a discretionary activity and which concerns injuries occurring while riding in a vehicle, is clearly more analogous to the present situation. Likewise, in the law, Arnold supersedes College Mobile Home Park & Sales. Arnold establishes the rule that broad exculpatory releases will be enforced to the extent they cover situations clearly contemplated by the parties. It refers to College Mobile Home Park & Sales as an example of  landlord-tenant law and cites that case and others as consistent with the rule promulgated in Arnold. Accordingly, College Mobile Home Park & Sales does not overrule or displace the rule established in Arnold.68
The third reason given for invalidation of this release by law is that "the release is in a standardized agreement printed on the Company's form, offering little or no opportunity for negotiation or free and voluntary bargaining." 181 Wis. 2d at 1011. This "reason" is, of course, actually a combination of several factors, none of which supports a "rule" for invalidation by law.69
First, the suggestion that there is something inherently or presumptively wrong with releases written in standardized forms is without foundation. There is plenty of authority that standardized contracts will be read strictly and will be construed against the drafter, etc. see e.g. Restatement (Second) of Torts § 496B, Comments C and D; Restatement (Second) of Contracts § 195, Comment B. However, there is no authority cited that a standardized form is inherently or even presumptively invalid in this context or any other. Again, this "rule," if it is to be that, appears for the first time in the majority opinion.70
Such a rule, which would effectively ban standardized releases, also conflicts with prior case law. Many, if not all, of the cases in which releases have been enforced involve pre-printed and standardized forms. For instance, in Arnold, 111 Wis. 2d at 211, this court specifically commented on the standardized nature of the exculpatory contract in that case. Significantly, the court did not take issue with the fact that the form was standardized. The problem in Arnold was lack of clarity in the terms of the clause, not the fact that the form was standardized. There is nothing in Arnold to suggest  that the standardized nature of the release was itself the source of reservations, much less that standardized agreements are somehow presumptively invalid.71
Nor does the proposed rule against standardized forms have a practical purpose. The majority opinion explains that "[w]hile the Company had the time and resources to draft the provisions and plan their effect, the plaintiff did not." 181 Wis. 2d at 1007. I find no legal or practical reason why the company should not take the "time and resources to draft the provisions and plan their effect." We should hope that all drafters would use such circumspection. Is it seriously suggested that the release would be more acceptable had it been improvised hurriedly on a piece of blank paper? Would public policy be favored if the company could prove it gave no thought to the effect of the provisions or if it could prove it had incorrectly planned the effect of the provisions? Again, assuming that public policy is not otherwise violated, all that is required is that the release be clear. It will be enforced to the extent it covers what was clearly contemplated by the parties.72
Second, the imposition of a "bargaining" requirement has no legal foundation in this context and makes little practical sense. It is true that the courts will sometimes compensate for the weaker bargaining power of certain actors in contract cases. However, these cases are typically limited to special situations and special areas of the law. For instance, as this court explains in Arnold, 111 Wis. 2d at 210:73
"There are a variety of other situations in which courts have refused to enforce exculpatory contracts on grounds of public policy. They include: excusing a party from tort liability for harm caused intentionally or recklessly; excusing an employer  from liability to an employee for injury in the course of his employment; relieving a party charged with performing a service of great importance to the public; and excusing a party invoking exculpation who possesses a decisive advantage in bargaining strength."74
Arnold does include unequal bargaining strength as a factor. However, the source for this analysis is § 195 of the Restatement (Second) of Contracts which does not list unequal bargaining strength as an independent factor. Similarly, the Restatement (Second) of Torts § 496B, Comment J, also mentions the "disparity of bargaining power," but limits this factor to special contexts in which there are other factors involved, for instance, when there is no "free choice" on the part of the plaintiff owing to the "necessities" and "exigencies" of the situation.75
No cases are cited—from any jurisdiction—which suggest that the mere fact that the parties to a contract possess unequal bargaining strength means that no exculpatory clauses or releases are permissible. When this court has applied the unequal bargaining strength rationale, as in Discount Fabric House v. Wis. Tel. Co., 117 Wis. 2d 587, 345 N.W.2d 417 (1984), it rejected that view. In Discount Fabric House, the unequal bargaining factor was explicitly linked to (and limited to) the public service context of the situation:76
This exculpatory clause in this private contract is against public policy in that the parties are not on equal bargaining terms and the telephone company has created a public interest in the publication of the yellow pages which requires that the telephone company perform its private duty to the ad subscriber without negligence or be held for damages. (emphasis supplied). Id. 117 Wis. 2d at 600.77
 The court in Discount Fabric House emphasized the "indispensable" nature of the service:78
In publishing the yellow pages the telephone company is engaged in performing a service of great, if not essential, importance to the public and it holds itself out as willing to give reasonable public service to all who apply to place ads in the yellow pages. The telephone company possesses a decisive advantage of bargaining strength. Id. 117 Wis. 2d at 596.79
Finally, the court in Discount Fabric House, 117 Wis. 2d at 600-601, cited with approval a case which expressed the rule as follows:80
There are then two inquiries in a case [involving unequal bargaining strength]: (1) What is the relative bargaining power of the parties, their relative economic strength, the alternative sources of supply, in a word what are their options?; (2) Is the challenged term substantively reasonable? ... Thus merely because the parties have different options or bargaining power, unequal or wholly out of proportion to each other, does not mean that the agreement of one of the parties to a term of a contract will not be enforced against him; if the term is substantively reasonable it will be enforced. By like token, if the provision is substantively unreasonable, it may not be enforced without regard to the relative bargaining power of the contracting parties. (emphasis supplied).81
Accordingly, then, none of these rationales applies to the present context. Monkem is not providing a public service or fulfilling a public duty in permitting Mrs. Richards to ride with her husband. Monkem is not entering a market transaction. Nor is this in any sense a "necessity" for Mrs. Richards. The majority opinion  laments that, "[i]f her plans to ride with her husband were to go forward, the plaintiff simply had to adhere to the terms of the written form." 181 Wis. 2d at 1019. However, the mere fact that she made "plans" to do something which was not authorized cannot by itself inject any requirement for "bargaining." Nor can the mere fact that one party sets a condition mean that unequal bargaining power has been employed. The company is under no obligation to allow any passengers. It is willing to entertain applications upon request, but only if the spouse-passengers sign releases of claims against the company for injuries they might sustain while being a passenger. Such a requirement is neither unfair nor surprising.82
As such, this newly created "bargaining" requirement, if it be that, is issued without any ascertainable standards. The majority has failed to explain when or why the newly created bargaining requirement is to be applied and the opinion does not begin to explain how it is to be applied. Is it applied because of something Monkem has done? At one point the majority implies that the bargaining requirement is to be applied because the company "probably derives some benefit" from a situation. However, besides the fact that this is pure speculation (Mrs. Richards never claims this), is there any situation in which one could not speculate that one party or another "probably derives some benefit"? Clearly such a rule would know no boundaries. And, again, there is no law cited from any jurisdiction or source suggesting anything even close to a "rule" that just because someone "probably derives some benefit" that that party must "afford" the other party an "equal opportunity to negotiate."83
Perhaps the newly created bargaining requirement is applied because of something Mrs. Richards  might have done—assuming she had read the release, of course. At one point the majority suggests that, "[h]ad the plaintiff been afforded the opportunity to negotiate a release, she might have declined to release the Company from liability for intentional or reckless actions ..." 181 Wis. 2d at 1020. Ironically, however, such claims would not need to be "declined" because they are unenforceable anyway. There is already a rule against releasing claims for intentional or reckless actions. That rule is to decline enforcement in those instances, not to invalidate the release as a whole. If Mrs. Richards had been injured by defective equipment, then, we would have to address the question of whether that type of risk was clearly contemplated by the parties or not. However, the mere fact that one can think of some hypothetical which might not be covered does not mean that the release as a whole is invalid. Were that so, the rule in Arnold would have no meaning.84
Both practitioner and court are left without a clue as to what it means to "afford" Mrs. Richards "the equal opportunity to negotiate a release." First, it is unclear when, why or how this "opportunity to negotiate" should be "afforded." Is the company to ask all spouse-applicants if they wish to negotiate? On the facts of the present case it makes little sense to say that Mrs. Richards was not "afforded" an "opportunity" when she failed to really read the release and never asked anyone at the company any questions about the release and did not even indicate any dissatisfaction with the release to the company. How and why can the majority imply that the company somehow failed to "afford" Mrs. Richards "opportunity" when she never requested any such "opportunity"?85
 Second, what does it mean to "negotiate" in this context, and how would the company ensure that the negotiations were "equal"? Are we to assess the competency of Mrs. Richards to negotiate and assume that any deficiencies must somehow be compensated for in substance by the company? What if Mrs. Richards is offered an entire brochure on negotiation skills but fails to read it, just as she failed to really read the one page release? Or is it suggested that the company appoint someone to help Mrs. Richards draft a counter-proposal? Must the company then negotiate—in good faith, of course—about which terms of its own release it might be willing to drop in "negotiations"? And what if, despite very skilled and fair negotiations on both sides, Mrs. Richards nevertheless agrees to accept the full release. The majority opinion implies that this result would be presumptively suspect.... The questions and problems these new "rules" raise are without visible end or solution.86
Third, I disagree with majority's comments about the cover letter and the employee handbook. The majority opinion does not claim that the cover letter or the employee (student) handbook were in any way affirmatively misleading. However, the majority opinion does suggest that one or both of these materials extraneous to the release should have explained the release to Mrs. Richards by law. The majority opinion states that the "cover letter did not advise [Mrs. Richards] that the document was a release of all claims and did not advise her of the legal significance attached to her signing of the document." 181 Wis. 2d at 1019. Likewise, the majority opinion complains that the "employee handbook advised employees that Company authorization was needed for a passenger to ride along but did not advise employees that the passenger would  have to release all claims against the Company." 181 Wis. 2d at 1019.87
Thus, as written, the majority opinion implies that an otherwise clear standardized clause would require non-standardized extraneous matter to explain the contents and effect of the clause. That is not the law. The cover letter and employee handbook are extraneous to the release. As such, they are relevant only to the extent they could either clarify or confuse the original release. If the release is itself clear, then, there might be a question of whether the cover letter or employee handbook, when read together with the clause, made the release unclear. However, on the facts of this case, both the cover letter and the handbook were neutral and factually accurate. There is no law that a cover letter which accompanies a release must reemphasize that the document it accompanies is a release when the document itself makes that clear. Nor is there any requirement that a cover letter explain the "legal significance" of the document it accompanies when the document itself is clear. Finally, there is no reason that the employee handbook must assume this responsibility, especially since it was not presented to Mrs. Richards, and she did not read it carefully, if at all. Thus, so long as these extraneous materials do not  detract from the release, then the release stands on its own.88
Finally, the majority opinion attempts to characterize this result as necessary to "accommodate" the "tension between the principles of contract and tort law" which is inherent in exculpatory agreements. 181 Wis. 2d at 1016. The principle of tort law "prevails" in this instance, the majority opinion explains, because we should "impos[e] liability on persons whose conduct creates an unreasonable risk of harm." (emphasis supplied) 181 Wis. 2d at 1015. However, in the present context, it is not Monkem who "creates" an unreasonable risk of harm, but rather it is Mrs. Richards who brought the risk into being by requesting authorization to be a passenger in the truck, and it was Mrs. Richards' husband who caused the accident through his own negligence. Monkem company was only attempting to protect itself from claims in which a passengerspouse sues the employer-owner on the basis of the spouse-driver's negligence. Since allowing passengers is entirely within the discretion of the company and is not favored generally by Federal law (hence the authorization requirement), it surely is not against public policy for a company in Monkem's position to demand a release of claims related to being a passenger before it gives authorization for the spouse-passenger to accompany the spouse-driver. Afterall, Monkem was  doing Mr. & Mrs. Richards a favor by granting permission for Mrs. Richards to accompany her husband in the truck.89
The sweeping condemnation of this release by the majority opinion, however, coupled with the refusal to enforce even those aspects of the release which were "obvious" to even Mrs. Richards, leaves companies such as Monkem clueless as to how one might craft a valid release. After reading the majority opinion, one might conclude that a valid release may be executed only if the document is not standardized, only if the company has not planned the effect of the document, only if the document says "RELEASE" more than once in each paragraph, only if a copy of the release and an explanation of the release are included in all correspondence to the prospective signatory and in all other materials such as student handbooks which might fall into the hands of a prospective spouse-passenger applicant, and, finally, only if the company provides for real and effective "bargaining" for spouse-passenger applicants.90
Because the majority opinion ignores our past precedents and creates new "rules" that are in my opinion unnecessary and unwise, I dissent.91
I am authorized to state that JUSTICES STEINMETZ and WILCOX join in this dissenting opinion.92
The following are excerpts from Mrs. Richards' deposition. (Record, 12:26-27, 29-30).93
Q: And you read the complete document from top to bottom?
Q: You didn't read the complete document. What did you read and what did you not read?
A: That it was basically it. From the top you can tell and from the memo it was a Passenger Authorization and down here that I needed to make a signature where my name was typed.
Q: Did you read the first paragraph commencing with `Full and final release' ending with the word `future'?
A: I may have.
Q: And did you read the second paragraph commencing with `I/we' ending with `property'?
A: I didn't understand it enough to read it.
Q: Well, did you read it?
A: I can't recall for sure if I read it or not, the whole thing.
Q: Did you read the third paragraph commencing with the words `It is expressly' ending with the words `consequences thereof?
A: I don't recall if I read what exact parts for sure of all or any of the document.
Q: All right. Likewise, Paragraph 4 commencing with the words `Permission is granted' ending with the words `person below:'?
[Mrs. Richards' attorney]: Okay. Same answer as previously, that you don't know if you read it or not?
A: Yes. I don't know....
Q: Do you know who inserted the information concerning the passenger that's on the right-hand portion of the lower third of the document?
A: No, I don't.
Q: Is that your handwriting?
A: I do not believe that it is....
Q: Did you read that it was a release of all claims that you may have against Monkem Company for riding as a passenger?
A: I'm not sure.
Q: Did you understand that this authorization was also a release of future causes of action or future claims that you may have against Monkem Company for riding as a passenger or being injured while riding as a passenger with Monkem?
A: I didn't understand it to mean that.
Q: Did you seek any assistance prior to signing this with regard to the portions that you've indicated that you did not understand?
A: No, I did not.
Q: So even though you didn't understand some of the contents of this authorization, you went ahead and signed it anyway?
Q: Did you discuss with Mr. Richards, your husband, the fact that [the Passenger Authorization] not only released or authorized you to ride as a passenger but released claims that you may have for being injured while riding as a passenger with Mr. Richards in a Monkem vehicle?
A: I did mention to him that I didn't understand it, and he had talked to someone, a secretary or someone at Monkem, and she just said that it just needed to be signed before I could go with him was what I understood from what he had told me from the conversation with her.
Q: Did you talk to the secretary?
A: No, I did not.
The following are excerpts from Mr. Leo J. Richards' deposition. (Record, 11:23-24, 26-27).95
Q: Was reference made to [the passenger] authorization [form]?
A: Well, we knew by federal law that you had to have a rider's permit for any passenger, and they mentioned that we would have to get one and that the only passengers they would authorize was immediate family.
Q: And did [Monkem Company] indicate a purpose for that authorization?
Q: What was that purpose that was communicated to you?
A: Well because they have a high percentage of accidents of passengers getting in and out of the vehicle, and they had to sign the release, and they also had to have a doctor's statement that they're physically able to climb in and out of the vehicle....
Q: Did the secretary in the Safety Office [at Monkem Company] explain the purpose that they—or the reason that they required [the passenger authorization] to be executed?
A: No. No. All drivers know that you have to have a Passenger Authorization. Even if you own the vehicle yourself, you still have to make one out.
Q: Prior to signing that agreement or that authorization did you have an opportunity to read it?
A: I glanced at it, but it's all legal mumbo jumbo, you know....
Q: Okay. Did you question anybody concerning its contents prior to signing it?
Q: So you signed the agreement even though you didn't understand what it said?
A: Well, the only thing I looked at was to see that my truck number and stuff was right, and that's about all....
 Arnold was overruled on other grounds, Green Springs Farms v. Kersten, 136 Wis. 2d 304, 317, 401 N.W.2d 816 (1987). The rule as concerns overbroad exculpatory clauses in Arnold was reaffirmed in Dobratz, 161 Wis. 2d at 523, 525. Dobratz, at 523, holds that no contract was formed in that case owing to the uncertainty and ambiguity of the document. It distinguishes that situation from cases involving overbroad exculpatory clauses. Dobratz, at 525, explicitly approves of Arnold and Trainor v. Aztalan Cycle Club, Inc., 147 Wis. 2d 107, 432 N.W.2d 626 (Ct. App. 1988) in how they handle overbroad release analysis. Nor does College Mobile Home Park & Sales v. Hoffmann, 72 Wis. 2d 514, 241 N.W.2d 174 (1976) stand for the proposition that broad leases in any or all subject areas may be held invalid just because they are broad. It specifically sets its holding in the framework of the public policy in landlord-tenant law, and has been interpreted by subsequent cases as an example of landlord-tenant law. see Arnold, 111 Wis. 2d at 210.97
 The cover letter was addressed to Mrs. Jerilyn Richards and read as follows: "Both of you should sign where indicated on the attached form. Please return the yellow copy in the enclosed envelope to this office and keep the original on the truck with you at all times. If you have any questions, please contact us." The entry in the employee handbook was merely stating that a passenger authorization was possible. It described the eligibility requirements and made clear that the process of applying would be handled through the Director of Risk Management of the company.98
 It was noted in Discount Fabric House, 117 Wis. 2d at 600, that exculpatory clauses are not favored because "such provisions tend to induce a want of care ..." However, in this instance, there is no hint, no allegation, and certainly no showing, that Monkem Company's level of care diminished in connection with the release or otherwise. Nor would there be any incentive to reduce the level of care because the company would still be liable to all others, and to the driver, in particular.
Supreme Court of Arizona, En Banc.
 Fogel and Lamber, P.A. by Dennis M. Lamber and Kenneth J. Love and Gage and Mathers, Ltd. by G. David Gage, Phoenix, for plaintiff-appellant.9
Snell & Wilmer by Barry D. Halpern, John C. West, Bob J. McCullough, Robert H. Oberbillig, Phoenix, for defendant-appellee Abortion Services of Phoenix.10
The Langerman Law Offices by Amy G. Langerman, Phoenix, for amicus curiae Ariz. Trial Lawyers Ass'n.11
Bob Gibbons, Austin, Tex., and Jeffrey R. White, Washington, D.C., for amicus curiae Ass'n of Trial Lawyers of America.12
Snell & Wilmer by Lawrence F. Winthrop, Phoenix, for amicus curiae Ariz. Medical Ass'n.13
Melinda Kay Broemmer (plaintiff) asks this court to review a court of appeals opinion that held that an "Agreement to Arbitrate" which she signed prior to undergoing a clinical abortion is an enforceable, albeit an adhesive, contract. Broemmer v. Otto, 169 Ariz. 543, 821 P.2d 204 (1991). The opinion affirmed the trial court's grant of summary judgment in favor of Abortion Services of Phoenix and Dr. Otto (defendants). Because we hold the agreement to arbitrate is unenforceable as against plaintiff, we reverse the trial court and vacate in part the court of appeals opinion. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.16
In December 1986, plaintiff, an Iowa resident, was 21 years old, unmarried, and 16 or 17 weeks pregnant. She was a high school graduate earning less than $100.00 a week and had no medical benefits. The father-to-be insisted that plaintiff have an abortion, but her parents advised against it. Plaintiff's uncontested affidavit describes the time as one of considerable confusion and emotional and physical turmoil for her.18
Plaintiff's mother contacted Abortion Services of Phoenix and made an appointment for her daughter for December 29, 1986. During their visit to the clinic that day, plaintiff and her mother expected, but did not receive, information and counselling on alternatives to abortion and the nature of the operation. When plaintiff and her mother arrived at the clinic, plaintiff was escorted into an adjoining room and asked to complete three forms, one of which is the agreement to arbitrate at issue in this case. The agreement to arbitrate included language that "any dispute aris[ing] between the Parties as a result of the fees and/or services" would be settled by binding arbitration and that "any arbitrators appointed by the AAA [American Arbitration Association] shall be licensed medical doctors who specialize in obstetrics/gynecology."  The two other documents plaintiff completed at the same time were a 2-page consent-to-operate form and a questionnaire asking for a detailed medical history. Plaintiff completed all three forms in less than 5 minutes and returned them to the front desk. Clinic staff made no attempt to explain the agreement to plaintiff before or after she signed, and did not provide plaintiff with copies of the forms.19
After plaintiff returned the forms to the front desk, she was taken into an examination room where pre-operation procedures were performed. She was then instructed to return at 7:00 a.m. the next morning for the termination procedure. Plaintiff returned the following day and Doctor Otto performed the abortion. As a result of the procedure, plaintiff suffered a punctured uterus that required medical treatment.20
Plaintiff filed a malpractice complaint in June 1988, approximately 1 1/2 years after the medical procedure. By the time litigation commenced, plaintiff could recall completing and signing the medical history and consent-to-operate forms, but could not recall signing the agreement to arbitrate. Defendants moved to dismiss, contending that the trial court lacked subject matter jurisdiction because arbitration was required. In opposition, plaintiff submitted affidavits that remain uncontroverted. The trial court considered the affidavits, apparently treated the motion to dismiss as one for summary judgment, and granted summary judgment to the defendants. Plaintiff's motion to vacate, quash or set aside the order, or to stay the claim pending arbitration, was denied.21
On appeal, the court of appeals held that although the contract was one of adhesion, it was nevertheless enforceable because it did not fall outside plaintiff's reasonable expectations and was not unconscionable. Following the court of appeals opinion, the parties stipulated to dismiss the Ottos from the lawsuit and from this appeal. We granted plaintiff's petition for review.22
Plaintiff presents 5 potential issues in her petition for review. Some of the parties and amici have urged us to announce a "bright-line" rule of broad applicability concerning the enforceability of arbitration agreements. Arbitration proceedings are statutorily authorized in Arizona, A.R.S. §§ 12-1501 to -1518, and arbitration plays an important role in dispute resolution, as do other salutary methods of alternative dispute resolution. Important principles of contract law and of freedom of contract are intertwined with questions relating to agreements to utilize alternative methods of dispute resolution. We conclude it would be unwise to accept the invitation to attempt to establish some "bright-line" rule of broad applicability in this case. We will instead resolve the one issue which is dispositive: Under the undisputed facts in this case, is the agreement to arbitrate enforceable against plaintiff? We hold that it is not.24
When the facts are undisputed, this court is not bound by the trial court's conclusions and may make its own analysis of the facts or legal instruments on which the case turns. Tovrea Land & Cattle Co. v. Linsenmeyer, 100 Ariz. 107, 114, 412 P.2d 47, 51 (1966). A.R.S. § 12-1501 authorizes written agreements to arbitrate and provides that they are "valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract." Thus, the enforceability of the agreement to arbitrate is determined by principles of general contract law. The court of appeals concluded, and we agree, that, under those principles, the contract in this case was one of adhesion.27
An adhesion contract is typically a standardized form "offered to consumers of goods and services on essentially a `take it or leave it' basis without affording the consumer a realistic opportunity to bargain and under such conditions that the consumer cannot obtain the desired product or services except by acquiescing in the form contract." Wheeler v. St. Joseph Hosp., 63 Cal. App.3d 345, 356, 133 Cal. Rptr. 775, 783  (1976) (citations omitted); see also Burkons v. Ticor Title Ins. Co. of Cal., 165 Ariz. 299, 311, 798 P.2d 1308, 1320 (App. 1989), rev'd on other grounds, 168 Ariz. 345, 813 P.2d 710 (1991) (essence of adhesion contract is that it is offered to consumers on essentially a "take it or leave it" basis). The Wheeler court further stated that "[t]he distinctive feature of a contract of adhesion is that the weaker party has no realistic choice as to its terms." 63 Cal. App.3d at 356, 133 Cal. Rptr. at 783 (citations omitted). Likewise, in Contractual Problems in the Enforcement of Agreements to Arbitrate Medical Malpractice, 58 Va.L.Rev. 947, 988 (1972), Professor Stanley Henderson recognized "the essence of an adhesion contract is that bargaining position and leverage enable one party `to select and control risks assumed under the contract.'" (quoting Friedrich Kessler, Contracts of Adhesion — Some Thoughts About Freedom of Contract, 43 Colum.L.Rev. 629 (1943)).28
The printed form agreement signed by plaintiff in this case possesses all the characteristics of a contract of adhesion. The form is a standardized contract offered to plaintiff on a "take it or leave it" basis. In addition to removing from the courts any potential dispute concerning fees or services, the drafter inserted additional terms potentially advantageous to itself requiring that any arbitrator appointed by the American Arbitration Association be a licensed medical doctor specializing in obstetrics/gynecology. The contract was not negotiated but was, instead, prepared by defendant and presented to plaintiff as a condition of treatment. Staff at the clinic neither explained its terms to plaintiff nor indicated that she was free to refuse to sign the form; they merely represented to plaintiff that she had to complete the three forms. The conditions under which the clinic offered plaintiff the services were on a "take it or leave it" basis, and the terms of service were not negotiable. Applying general contract law to the undisputed facts, the court of appeals correctly held that the contract was one of adhesion.29
Our conclusion that the contract was one of adhesion is not, of itself, determinative of its enforceability. "[A] contract of adhesion is fully enforceable according to its terms [citations omitted] unless certain other factors are present which, under established legal rules — legislative or judicial — operate to render it otherwise." Graham v. Scissor-Tail, Inc., 28 Cal.3d 807, 171 Cal. Rptr. 604, 611, 623 P.2d 165, 172 (1981) (footnotes omitted). To determine whether this contract of adhesion is enforceable, we look to two factors: the reasonable expectations of the adhering party and whether the contract is unconscionable. As the court stated in Graham:31
Generally speaking, there are two judicially imposed limitations on the enforcement of adhesion contracts or provisions thereof. The first is that such a contract or provision which does not fall within the reasonable expectations of the weaker or "adhering" party will not be enforced against him. [citations omitted] The second — a principle of equity applicable to all contracts generally — is that a contract or provision, even if consistent with the reasonable expectations of the parties, will be denied enforcement if, considered in its context, it is unduly oppressive or "unconscionable."32
171 Cal. Rptr. at 612, 623 P.2d at 172-73 (citations omitted). See also Huff v. Bekins Moving & Storage Co., 145 Ariz. 496, 498, 702 P.2d 1341, 1343 (App. 1985).33
Plaintiff argues that the trial court should have adopted, and we should now adopt, the analysis provided in Obstetrics & Gynecologists v. Pepper, 101 Nev. 105, 693 P.2d 1259 (1985), because it is virtually indistinguishable from the present case. In Pepper, the patient was required to sign an agreement before receiving treatment which waived her right to jury trial and submitted all disputes to arbitration. The clinic did not explain the contents of the agreement to the patient. The clinic's practice was to have staff instruct patients to complete two medical history forms and the agreement to arbitrate and to inform patients that any questions would be answered.  If the patient refused to sign the agreement, the clinic refused treatment.34
The plaintiff in Pepper signed the agreement, but did not recall doing so, nor did she recall having the agreement explained to her. The plaintiff later brought suit for injuries suffered due to improperly prescribed oral contraceptives. The trial court made no findings of fact or conclusions of law, but the Nevada Supreme Court, upon review of the record before it, held the agreement unenforceable because plaintiff did not give a knowing consent to the agreement to arbitrate.35
The facts in the instant case present an even stronger argument in favor of holding the agreement unenforceable than do the facts in Pepper. In both cases, plaintiffs stated that they did not recall signing the agreement to arbitrate or having it explained to them. Unlike the clinic in Pepper, the clinic in this case did not show that it was the procedure of clinic staff to offer to explain the agreement to patients. The clinic did not explain the purpose of the form to plaintiff and did not show whether plaintiff was required to sign the form or forfeit treatment. In Pepper, the fact that both parties were waiving their right to a jury trial was explicit, which is not so in the present case.36
Clearly, the issues of knowing consent and reasonable expectations are closely related and intertwined. In Darner Motor Sales, Inc. v. Universal Underwriters Ins. Co., 140 Ariz. 383, 682 P.2d 388 (1984), this court used the Restatement (Second) of Contracts § 211 (Standardized Agreements), as a guide to analyzing, among other things, contracts that contain non-negotiated terms. The comment to subsection (3), quoted with approval in Darner, states in part:37
Although customers typically adhere to standardized agreements and are bound by them without even appearing to know the standard terms in detail, they are not bound to unknown terms which are beyond the range of reasonable expectation.38
See 140 Ariz. at 391, 682 P.2d at 396.39
The Restatement focuses our attention on whether it was beyond plaintiff's reasonable expectations to expect to arbitrate her medical malpractice claims, which includes waiving her right to a jury trial, as part of the filling out of the three forms under the facts and circumstances of this case. Clearly, there was no conspicuous or explicit waiver of the fundamental right to a jury trial or any evidence that such rights were knowingly, voluntarily and intelligently waived. The only evidence presented compels a finding that waiver of such fundamental rights was beyond the reasonable expectations of plaintiff. Moreover, as Professor Henderson writes, "[i]n attempting to effectuate reasonable expectations consistent with a standardized medical contract, a court will find less reason to regard the bargaining process as suspect if there are no terms unreasonably favorable to the stronger party." Henderson, supra, at 995. In this case failure to explain to plaintiff that the agreement required all potential disputes, including malpractice disputes, to be heard only by an arbitrator who was a licensed obstetrician/gynecologist requires us to view the "bargaining" process with suspicion. It would be unreasonable to enforce such a critical term against plaintiff when it is not a negotiated term and defendant failed to explain it to her or call her attention to it.40
Plaintiff was under a great deal of emotional stress, had only a high school education, was not experienced in commercial matters, and is still not sure "what arbitration is." Given the circumstances under which the agreement was signed and the nature of the terms included therein, our reading of Pepper, Darner, the Restatement and the affidavits in this case compel us to conclude that the contract fell outside plaintiff's reasonable expectations and is, therefore, unenforceable. Because of this holding, it is unnecessary for us to determine whether the contract is also unconscionable.41
In view of the concern expressed by the dissent, we restate our firm conviction that arbitration and other methods of alternative  dispute resolution play important and desirable roles in our system of dispute resolution. We encourage their use. When agreements to arbitrate are freely and fairly entered, they will be welcomed and enforced. They will not, however, be exempted from the usual rules of contract law, as A.R.S. § 12-1501 itself makes clear.43
We also restate that we decline the invitation to write a sweeping, legislative rule concerning all agreements to arbitrate. Instead, we decide this case. In this case, the facts concerning the signing of the document have all come from the plaintiff and all are uncontradicted. Under the undisputed facts in this case, the document involved is a contract of adhesion. Our enthusiasm for arbitration in general does not permit us to ignore the realities present in this case.44
The dissent is concerned that our decision today sends a "mixed message." It is, however, our intent to send a clear message. That message is: Contracts of adhesion will not be enforced unless they are conscionable and within the reasonable expectations of the parties. This is a well-established principle of contract law; today we merely apply it to the undisputed facts of the case before us.45
Those portions of the opinion of the court of appeals inconsistent with this opinion are vacated. The judgment of the trial court is reversed and this case is remanded for further proceedings consistent with this opinion. Because plaintiff has successfully overcome defendant's claimed contractual defense, the trial court may entertain an application for fees incurred at the trial court and appellate level. Wagenseller v. Scottsdale Memorial Hosp., 147 Ariz. 370, 391-95, 710 P.2d 1025, 1046-50 (1985).47
The court's conclusion that the agreement to arbitrate was outside the plaintiff's reasonable expectations is without basis in law or fact. I fear today's decision reflects a preference for litigation over alternative dispute resolution that I had thought was behind us. I would affirm the court of appeals.50
We begin with the undisputed facts that the court ignores. Appendix "A" to this dissent is the agreement to arbitrate. At the top it states in bold capital letters "PLEASE READ THIS CONTRACT CAREFULLY AS IT EFFECTS [sic] YOUR LEGAL RIGHTS." Directly under that in all capital letters are the words "AGREEMENT TO ARBITRATE." The recitals indicate that "the Parties deem it to be in their respective best interest to settle any such dispute as expeditiously and economically as possible." The parties agreed that disputes over services provided would be settled by arbitration in accordance with the rules of the American Arbitration Association. They further agreed that the arbitrators appointed by the American Arbitration Association would be licensed medical doctors who specialize in obstetrics/gynecology. Plaintiff, an adult, signed the document.51
Under A.R.S. § 12-1501, a written contract to submit to arbitration any controversy that might arise between the parties is "valid, enforceable and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract." The statute applies to any controversy. Under A.R.S. § 12-1503, if the arbitration agreement provides a method of appointment of arbitrators, "this method shall be followed." Under A.R.S. § 12-1518, the American Arbitration Association is expressly acknowledged as an entity that the state itself may use in connection with arbitration. There is judicial review of any award. A.R.S. § 12-1512. Thus, on the face of it, the contract to arbitrate is plainly reasonable and enforceable unless there are grounds to revoke it. A.R.S. § 12-1501.52
The court seizes upon the doctrine of reasonable expectations to revoke this contract. But there is nothing in this record that would warrant a finding that an agreement to arbitrate a malpractice claim was  not within the reasonable expectations of the parties. On this record, the exact opposite is likely to be true. For all we know, both sides in this case might wish to avoid litigation like the plague and seek the more harmonious waters of alternative dispute resolution. Nor is there anything in this record that would suggest that arbitration is bad. Where is the harm? In the end, today's decision reflects a preference in favor of litigation that is not shared by the courts of other states and the courts of the United States.53
In Doyle v. Giuliucci, 62 Cal.2d 606, 43 Cal. Rptr. 697, 699, 401 P.2d 1, 3 (1965), Chief Justice Roger J. Traynor of the California Supreme Court said, in connection with a medical malpractice claim, that "[t]he arbitration provision in such contracts is a reasonable restriction, for it does no more than specify a forum for the settlement of disputes." And, in Madden v. Kaiser Foundation Hospitals, 17 Cal.3d 699, 131 Cal. Rptr. 882, 890, 552 P.2d 1178, 1186 (1976), the California Supreme Court outlined "the benefits of the arbitral forum":54
[t]he speed and economy of arbitration, in contrast to the expense and delay of jury trial, could prove helpful to all parties; the simplified procedures and relaxed rules of evidence in arbitration may aid an injured plaintiff in presenting his case. Plaintiffs with less serious injuries, who cannot afford the high litigation expenses of court or jury trial, disproportionate to the amount of their claim, will benefit especially from the simplicity and economy of arbitration; that procedure could facilitate the adjudication of minor malpractice claims which cannot economically be resolved in a judicial forum.55
The Federal Arbitration Act, 9 U.S.C. § 2, is just like Arizona's, A.R.S. § 12-1501. There was a time when judicial antipathy towards arbitration prevailed. Poor Justice Frankfurter had to say in dissent in Wilko v. Swan, 346 U.S. 427, 439, 74 S.Ct. 182, 189, 98 L.Ed. 168 (1953) that "[t]here is nothing in the record before us, nor in the facts of which we can take judicial notice, to indicate that the arbitral system ... would not afford the plaintiff the rights to which he is entitled."56
Justice Frankfurter's views have now been vindicated. The Supreme Court of the United States has upheld arbitration agreements under the Federal Arbitration Act in a variety of contexts, from the commercial setting in Shearson/American Express Inc. v. McMahon, 482 U.S. 220, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987) (Securities Exchange Act of 1934 and RICO claims) and Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989) (Securities Act of 1933) to employment discrimination claims. Gilmer v. Interstate/Johnson Lane Corp., ___ U.S. ___, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (Age Discrimination in Employment Act claim).57
Indeed, in Gilmer, the Supreme Court expressly rejected the arguments that regrettably this court has accepted. ___ U.S. at ___-___, 111 S.Ct. at 1654-55. The Supreme Court has expressly rejected the "outmoded presumption" and "suspicion of arbitration as a method of weakening the protections afforded in the substantive law." Rodriguez de Quijas, 490 U.S. at 481, 109 S.Ct. at 1920.58
Against this background, how does this court reach its conclusion that arbitration  is beyond the reasonable expectations of the parties? Its reliance on Obstetrics and Gynecologists v. Pepper, 101 Nev. 105, 693 P.2d 1259 (1985), Darner Motor Sales, Inc. v. Universal Underwriters Insurance Co., 140 Ariz. 383, 682 P.2d 388 (1984), and the Restatement (Second) of Contracts § 211 (1979), is misplaced.59
Pepper is a brief per curiam opinion of the Nevada Supreme Court which merely affirmed the finding of a trial court. The trial court held a hearing to determine whether there was an enforceable arbitration contract. However, the trial court did not make findings of facts and conclusions of law. That court simply denied a motion to stay pending arbitration. The Nevada Supreme Court said "[t]he district court could certainly have found that the arbitration agreement was an adhesion contract." 693 P.2d at 1260. It then said "[s]ince appellant's counsel failed to pursue the entry of findings of facts and conclusions of law, we are bound to presume that the district court found that respondent did not give a knowing consent to the arbitration agreement prepared by appellant clinic." Id., 693 P.2d at 1261. If Pepper stands for anything, it stands for the proposition that "knowing consent" is a factual question, and that an appellate court will affirm a factual finding if there is any evidence to support it. The basis for the court's decision was "knowing consent" under Nevada law, not reasonable expectations under ours.60
Nor are Darner and the Restatement support for this court's conclusion. Darner held that an adhesive contract term that is "contrary to the negotiated agreement made by the parties," 140 Ariz. at 387, 682 P.2d at 392, will not be enforced because it collides with expectations that "have been induced by the making of a promise." 140 Ariz. at 390, 682 P.2d at 395 (quoting 1 Corbin, Contracts § 1 at 2 (1963)). The defendant here did not promise the plaintiff that malpractice claims could be litigated. Thus, the agreement to arbitrate is not contrary to any negotiated deal.61
Gordinier v. Aetna Casualty & Surety Co., 154 Ariz. 266, 742 P.2d 277 (1987), of course, extended Darner to the entire scope of the Restatement (Second) of Contracts § 211 (1979). But even that section does not support today's decision. Under Restatement (Second) of Contracts § 211(3), standardized agreements are enforceable except where a party has reason to believe that the other party would not manifest assent if he knew that the writing contained a particular term. Comment f to § 211 tells us:62
Such a belief or assumption may be shown by the prior negotiations or inferred from the circumstances. Reason to believe may be inferred from the fact that the term is bizarre or oppressive, from the fact that it eviscerates the non-standard terms explicitly agreed to, or from the fact that it eliminates the dominant purpose of the transaction. The inference is reinforced if the adhering party never had an opportunity to read the term, or if it is illegible or otherwise hidden from view.63
Plainly, there are no facts in this case to support any of these factors. There were no prior negotiations that were contrary to arbitration. An agreement to arbitrate is hardly bizarre or oppressive. It is a preferred method of alternative dispute resolution that our legislature has expressly acknowledged in A.R.S. § 12-1501. Arbitration does not eviscerate any agreed terms. Nor does it eliminate the dominant purpose of the transaction. The plaintiff here had an opportunity to read the document, the document was legible and was hardly hidden from plaintiff's view. This arbitration agreement was in bold capital letters. Thus, the reasonable expectations standard of the Restatement (Second) of Contracts § 211 does not support this court's conclusion.64
There is another reason why § 211(3) fails to support the court's conclusion. The Restatement (Second) of Contracts chapter 8 describes the whole range of unenforceable contracts. Its introductory note states:65
 A particularly important change has been effected by statutes relating to arbitration, which have now been enacted in so many jurisdictions that it seems likely that even in the remaining states, there has been a change in the former judicial attitude of hostility toward agreements to arbitrate future disputes.... Such agreements are now widely used and serve the public interest by saving court time. The rules stated in this Chapter do not preclude their enforcement even in the absence of legislation.66
Restatement (Second) of Contracts ch. 8, intro. note at 4 (emphasis added). It is difficult to reconcile the court's reliance on the Restatement in light of this.67
The court tells us that there is no explicit waiver of the fundamental right to a jury trial in the arbitration agreement. But under Rule 38(d), Ariz.R.Civ.P., the failure of a party to serve a demand for a jury trial and file it constitutes a waiver by that party of a trial by jury. In contrast to the criminal process, no complicated proceeding is required to waive a trial by jury in a civil case. It is ironic that the majority prefers litigation, in which the plaintiff would lose her right to trial by jury by failing to know about it and demand it under Rule 38, but then somehow assumes that a document which in bold capital letters informs the plaintiff that it affects her legal rights and is denominated in bold capital letters as "agreement to arbitrate" is insufficient warning.68
At bottom, all that could explain the court's decision is a preference for litigation over arbitration. The court expresses sympathy for the plaintiff as though arbitration were harmful to her interests. But Arizona public policy has long supported arbitration as good, not evil. Court annexed arbitration of civil actions under A.R.S. § 12-133 is now an entrenched part of our culture. About 90% of these cases end at arbitration and are not appealed. Arizona Supreme Court Commission on the Courts, Report of the Commission on the Courts 36 (1989). Indeed, the Commission on the Courts specifically recommended that medical malpractice cases be subject to alternative dispute resolution procedures. Id. at 38. It noted that many lawyers will not take a malpractice case unless the damages exceed $100,000. "A large number of potential plaintiffs, therefore, may never receive the representation and opportunity for compensation they deserve. Both plaintiff and defense attorneys indicate that they would prefer a different form of dispute resolution." Id. at 39.69
Ironically, this court was instrumental in establishing an alternative dispute resolution fund under which we promote alternative dispute resolution and administer the fund. A.R.S. § 12-135.70
And, we recently amended our rules of civil procedure to encourage trial judges to "[c]onsider alternative dispute resolution." Ariz.R.Civ.P. 16(c)(11). The committee comment to this 1991 amendment notes that "Rule 16(c)(11) is intended by the Committee to be a strong suggestion that the court explore the possibility of alternative dispute resolution including binding and non-binding arbitration...." Rule 16(c)(11), Ariz.R.Civ.P. comment (emphasis added).71
Today's decision sends a mixed message. In light of all of these developments, how can it be that an agreement to arbitrate "fell outside plaintiff's reasonable expectations?" The court's answer, Part III, ante, at 152, 840 P.2d at 1017, merely confuses the concept of a contract of adhesion with the doctrine of reasonable expectations. The court says it will enforce arbitration agreements "freely and fairly entered," ante, at 153, 840 P.2d at 1018, and that "the document involved is a contract of adhesion." Id. But the court's own framework of analysis acknowledges that its "conclusion that the contract was one of adhesion is not, of itself, determinative of its enforceability." Ante, at 151, 840 P.2d at 1016. It acknowledges that once it is determined that an adhesive contract exists,  one looks to (1) reasonable expectations and (2) conscionability. Id. No one doubts that this was a contract of adhesion. And the court holds that because "the contract fell outside plaintiff's reasonable expectations" it is unenforceable, and therefore it is not necessary "to determine whether the contract is also unconscionable." Ante, at 152, 840 P.2d at 1017. Thus the court does not reach conscionability.72
The only basis for the court's decision is "reasonable expectations," but words such as "freely and fairly entered," or "contract of adhesion" are irrelevant to that inquiry. If it is not "free" it is a contract of adhesion. If it is "unfair" it is unconscionable. Nowhere does the court's "Comment on The Dissent" provide the basis for its legal conclusion that this adhesive agreement to arbitrate fell outside of plaintiff's reasonable expectations. In the end we are left to conclude that people reasonably expect litigation over alternative dispute resolution. For all these reasons, I dissent.73
 According to a national survey on American attitudes towards dispute resolution, 82% of the American public, once informed, is willing to use dispute resolution, particularly mediation and arbitration. NIDR Releases Findings of National Survey on Public Attitudes Towards DR, Forum, Summer 1992 at 26.75
 Following these decisions, the California legislature adopted Cal.Civ.Proc.Code § 1295, which expressly regulates such provisions. California has acknowledged the validity of contracts in compliance with the statute even where the patient is illiterate and, as here, claims not to remember signing it. Bolanos v. Khalatian,231 Cal. App.3d 1586, 283 Cal. Rptr. 209, 211 (1991).76
Michigan has a statute similar to California's, Mich. Stat. Ann. §§ 27A. 5040-27A. 5065, and its court has rejected arguments that arbitration agreements in compliance with the statute are adhesive, unconscionable, or deny people their rights to jury trials. Morris v. Metriyakool, 418 Mich. 423, 344 N.W.2d 736 (1984).77
 In 1987 and 1988, in Maricopa County, there were 290 appeals from 2,945 terminated arbitration cases.
United States Court of Appeals, Second Circuit.
  Herbert M. Wachtell, Wachtell, Lipton, Rosen & Katz (Proskauer Rose LLP (John H. Gross and Seth B. Schafler), and Wachtell, Lipton, Rosen & Katz (Eric M. Roth, Marc Wolinsky, Barbara Robbins, Ben M. Germana, Elaine P. Golin, Jed I. Bergman, Edward J.W. Blatnik, Ian Boczko, and Kenneth K. Lee), on the brief), New York, NY, for Defendants-Counter-Claimants-Counter-Defendants-Appellants-Cross-Appellees World Trade Center Properties, L.L.C., Silverstein Properties, Inc., Silverstein WTC Management Co., L.L.C., 1 World Trade Center, L.L.C., 2 World Trade Center, L.L.C., 4 World Trade Center, L.L.C, and 5 World Trade Center, L.L.C.8
Skadden, Arps, Slate, Meagher & Flom LLP (Timothy G. Reynolds and Arthur F. Fama, Jr.) and Port Authority of New York and New Jersey (Milton H. Pachter, Megan Lee, and Timothy G. Stickelman), New York, NY, for Defendants-Counter-Claimants-Counter-Defendants-Appellants-Cross-Appellees Port Authority of New York and New Jersey.9
Mayer, Brown, Rowe & Maw (Philip Allen Lacovara, Ryan P. Farley, Peter K. Rosen, and David C. Bolstad), New York, N.Y. & Los Angeles, CA, for Defendants-Counter-Claimants-Counter-Defendants-Appellants-Cross-Appellees Westfield WTC, L.L.C., Westfield Corporation, Inc., and Westfield America, Inc.10
Harvey Kurzweil, Dewey Ballantine LLP (Alan R. Miller, Robins Kaplan Miller & Ciresi LLP, Boston, MA, Saul P. Morgenstern, Robert J. Morrow, Paul T. Olszowka, and Nora M. Puckett, Dewey Ballantine LLP, on the brief), New York, NY, for Counter-Defendant-Appellee Travelers Indemnity Company.11
William J. Bowman, Hogan & Hartson LLP (John G. Roberts, Jr., Patrick F. Hofer, Paula P. Skalaban, and Joshua D. Weinberg, on the brief), Washington, DC, for Counter-Defendant-Appellee Hartford Fire Insurance Company.12
Michael H. Barr, Sonnenschein Nath & Rosenthal (Sandra D. Hauser, Michael S. Gugig, Steven L. Brodsky, Stephen C. McDougall, on the brief), New York, NY, for Counter-Defendant-Appellee Royal Indemnity Company.13
Charles Fried (Shaw Pittman LLP, Lon A. Berk, Walter J. Andrews, Michael S. Levine, Mary K. Martin, McLean, VA, on the brief), Cambridge, MA, for Counter-Defendant-Appellee-Cross-Appellant St. Paul Fire & Marine Insurance Co.14
Heller Ehrman White & McAuliffe LLP (Nancy Sher Cohen, Stephen N. Goldberg, and John C. Ulin, on the brief), New York, NY, for Defendants-Counter-Claimants-Counter-Defendants-Cross-Appellees GMAC Commercial Mortgage Corporation and Wells Fargo Bank Minnesota, N.A.15
Covington & Burling (Mitchell F. Dolin, Neil K. Roman, Richard A. Beckmann, on the brief), Washington, DC, for Defendants-Counter-Claimants-Counter-Defendants-Cross-Appellees UBS Warburg Real Estate Investments Inc.16
Barry R. Ostrager, Simpson Thacher & Bartlett (Mary Kay Vyskocil, Michael J. Garvey, Tyler B. Robinson, and Michael C. Ledley, on the brief), New York, NY, for Plaintiff-Counter-Defendant-Intervenor SR International Business Insurance Co., Ltd.17
Boies, Schiller & Flexner LLP (David Boies, Edward Normand), Armonk, NY; Ropes & Gray (Kenneth W. Erickson, Robert A. Skinner, John C. Demers; Paul B. Galvani), Boston, MA and New York, NY; Cozen O'Connor (Stephen A. Cozen, Jay M. Levin), Philadelphia, PA; Mound, Cotton, Wollan & Greengrass (Stuart Cotton), New York, NY; Robinson & Cole  LLP (Gregory J. Ligelis), Stamford, CT; Budd, Larner, Gross, Rosenbaum, Greenberg & Sade P.C. (Christopher S. Finazzo), Short Hills, NJ; Mendes & Mount LLP (Leo W. Fraser III), New York, NY, for Amici Curiae Certain Counterclaim Defendants in Support of Affirmance and in Support of Travelers Indemnity Company.18
Eliot Spitzer, Attorney General of the State of New York (Caitlin J. Halligan, Solicitor General, Michelle Aronowitz, Deputy Solicitor General, Deon J. Nossel, Assistant Solicitor General, of counsel), New York, NY, for Amicus Curiae The Attorney General of the State of New York in Support of Appellants.19
Before: WALKER, Chief Judge, CABRANES and POOLER, Circuit Judges.20
This case arises out of the devastating tragedy that occurred at the World Trade Center ("WTC") in lower Manhattan, New York, on the morning of September 11, 2001. At issue in this case is the amount of insurance that is recoverable for the total destruction of the WTC that occurred after the buildings were struck by two fuel-laden aircraft that had been hijacked by terrorists. The appellants are numerous entities that have varying property interests in the WTC, including the Port Authority of New York and New Jersey (the "Port Authority"), which owns the property in fee simple, and Silverstein Properties, Inc. and several related entities ("Silverstein Properties"). In the spring of 2001, Silverstein Properties was the successful bidder on a 99-year lease for the property from the Port Authority. In July 2001, Silverstein Properties obtained primary and excess insurance coverage for the WTC complex from about two dozen insurers (most of which constitute the appellees and other counter-defendants in this case) in the total amount of approximately $3.5 billion "per occurrence." Because Silverstein Properties is the party that actually obtained the insurance coverage at issue in this case and was the primary insured, for ease of reference all appellants will hereafter be referred to collectively as the "Silverstein Parties."22
The parties do not dispute that the destruction of the WTC resulted in a loss that greatly exceeded $3.5 billion. The broad question presented in this case is whether the events of September 11, 2001 constituted one or two "occurrences." The answer will determine whether the Silverstein Parties can recover once, up to $3.5 billion, or twice, up to $7 billion, under the insurance coverage. Complicating the resolution of this question is the fact that as of September 11, 2001, only one of the many insurers that bound coverage on the WTC had issued a final policy, necessitating an individualized inquiry to determine the terms of the insurance binders issued by each insurer.23
This litigation began on October 22, 2001 when one of the WTC insurers, plaintiff-counter-defendant-intervenor SR International Business Insurance ("SR International"), filed suit against the Silverstein Parties "seek[ing] a judicial declaration of its rights and obligations to all of the insureds under the policy" and a "declaration that the damage to the World Trade Center is one insurance loss." The Silverstein Parties subsequently filed counterclaims against the other WTC insurers, seeking a declaration "that the events of September 11th constituted more than one occurrence under the coverage that the counterclaim-defendant[s] agreed to provide  to the Silverstein Parties." After an initial assignment to another judge, the action was assigned to District Judge John S. Martin Jr. of the United States District Court for the Southern District of New York for all purposes.24
In the first of these related appeals, the Silverstein Parties appeal from three judgments, made final and appealable pursuant to Fed.R.Civ.P. 54(b), granting summary judgment in favor of appellees Hartford Fire Insurance Company ("Hartford"), Royal Indemnity Company ("Royal"), and St. Paul Fire & Marine Insurance Company ("St.Paul"), respectively, in which the district court held that (a) the binders they issued were governed by the insurance policy form circulated by Silverstein Properties' insurance broker, and (b) under the definition of "occurrence" in that form, the destruction of the WTC was one occurrence as a matter of law. In the second appeal, the Silverstein Parties appeal an interlocutory order of the district court, certified to this court pursuant to 28 U.S.C. § 1292(b), denying the Silverstein Parties' motion seeking summary judgment against appellee Travelers Indemnity Company ("Travelers") based on the argument that the events of September 11, 2001, constituted two occurrences as a matter of law under the undefined term "occurrence" contained in Travelers' insurance policy. This court issued orders granting the Silverstein Parties' petition for leave to appeal under 28 U.S.C. § 1292(b) and their motion to have the § 1292(b) and Rule 54(b) appeals heard in tandem.25
For the following reasons, the judgments of the district court are affirmed.26
As a condition of its 99-year lease of the WTC, Silverstein Properties was required to obtain first-party property insurance on the property. Silverstein Properties engaged Willis of New York ("Willis"), an insurance broker, to set up a multi-layered insurance program, which consisted of a primary insurance layer and 11 excess insurance layers providing a total of approximately $3.5 billion insurance on a "per occurrence" basis. In soliciting insurers for the program, Willis circulated a Property Underwriting Submission (the "Underwriting Submission") containing information regarding the proposed placement, including descriptions of the property and the insureds, desired coverage terms and conditions, estimated property values, engineering information, and a property loss history. With respect to at least the four insurers involved in these appeals, the Underwriting Submission also included a specimen copy of Willis's own "broker" form (the "WilProp form"). Section VIII of the Underwriting Submission states:28
 Policy Form and Contract between Silverstein and the [Port Authority] are attached. DRAFT WilProp for Real Estate Risks is attached. We anticipate that this form will ultimately require amendment to comply with the Contract between Silverstein Properties, Inc. and the [Port Authority]. In the meantime, we provide this document as a starting point.29
Of the four insurers in these appeals, Travelers was the only insurer to submit its own specimen policy form (the "Travelers form") during the course of negotiating the terms of coverage. Whereas the Travelers form did not define the term "occurrence," the WilProp form defined occurrence as follows:30
"Occurrence" shall mean all losses or damages that are attributable directly or indirectly to one cause or to one series of similar causes. All such losses will be added together and the total amount of such losses will be treated as one occurrence irrespective of the period of time or area over which such losses occur.31
SR Int'l Bus. Ins. Co. v. World Trade Ctr. Props. LLC, 222 F.Supp.2d 385, 398 (S.D.N.Y.2002).32
As we will explain in greater detail, each of the appellees negotiated separately with Willis concerning its participation in the insurance program and all had bound coverage on various layers as of July 20, 2001. During the course of the next several weeks, Willis negotiated with Travelers over the terms of its final policy, but the Silverstein Parties have presented no evidence to indicate that any of the other appellees participated in or were aware of the details of those negotiations. As of September 11, 2001, none of the appellee-insurers had issued a final policy form, nor had Willis issued the WilProp form as a final policy form, although at least one other participating insurer, Allianz Insurance Company ("Allianz"), had issued a final policy. SR Int'l Bus. Ins. Co. v. World Trade Ctr. Props. LLC, No. 01 Civ. 9291(JSM), 2002 WL 1163577, at *2 & n. 3 (S.D.N.Y. June 3, 2002); see also SR Int'l Bus. Ins. Co. v. World Trade Ctr. Props. LLC, No. 01 Civ. 9291(JSM), 2003 WL 192487, at *4 (S.D.N.Y. Jan.29, 2003). On September 14, 2001, three days after the WTC was destroyed, following discussions between Willis and Travelers, Travelers issued its final policy form.33
As a threshold matter, we address the basis for federal subject matter jurisdiction over these exclusively state law claims involving insurance coverage and contract interpretation. "An inquiry respecting [jurisdiction] is one we always have the power to undertake, and where jurisdiction is questionable we are obliged to examine it sua sponte." Petereit v. SB Thomas, Inc., 63 F.3d 1169, 1175 (2d Cir.1995). Although we are satisfied that jurisdiction exists here, we discuss the issue because of some unusual circumstances presented in this case.36
The district court did not specifically address jurisdiction in its opinion denying summary judgment. It apparently was of the view, however, that the action against Travelers was separate from the SR International  litigation and related counterclaims, and noted that Travelers is a Connecticut company with its principal place of business in Connecticut, while the entities comprising Silverstein Properties are all either Delaware or New York companies and have their principal places of business in New York. We need not decide if there was jurisdiction over the separate action initially filed by Silverstein Properties against Travelers, however, because in March 2002, prior to the district court's decision denying summary judgment, that action was withdrawn without prejudice by stipulation of the parties and Travelers was added as a counterclaim defendant to the action brought against the Silverstein Parties by SR International. See supra n. 1. Accordingly, we address only whether there exists federal jurisdiction over the latter action.37
According to the Silverstein Parties, federal jurisdiction exists in this case because there is complete diversity between all of the defendants and plaintiff SR International and supplemental jurisdiction applies to defendants' counterclaims against Travelers and the other insurers. A review of the parties' citizenship appears to support this assertion. Plaintiff SR International is a foreign corporation (a citizen of the United Kingdom), but this does not preclude diversity because 28 U.S.C. § 1332(a)(2) provides federal jurisdiction over actions between "citizens of a State and citizens or subjects of a foreign state."39
Defendant Wells Fargo is a national bank (i.e., not incorporated in any one state) and by statute is deemed to be a citizen of every state in which it has offices. 28 U.S.C. § 1348 ("All national banking associations shall, for the purposes of all [ ] actions by or against them [other than a few enumerated in the statute], be deemed citizens of the States in which they are respectively located."); see United Republic Ins. Co., in Receivership v. Chase Manhattan Bank, 315 F.3d 168, 169 (2d Cir.2003) (per curiam) (recalling mandate, vacating prior summary order, and remanding to district court to determine whether diversity jurisdiction existed under 28 U.S.C. §§ 1332 & 1348 in light of fact that defendant banks had branch offices in plaintiff's home state); but see Lerner v. Fleet Bank, N.A., 318 F.3d 113, 124-25 (2d Cir.2003) (implicitly assuming that national bank was a citizen of New York, presumably its principal place of business, for purposes of diversity). The fact that Wells Fargo may be a citizen of several unidentified states does not affect diversity here, however, because SR International is a foreign citizen.40
Defendant Port Authority presents a closer question on jurisdiction because it is a state-created body, thereby raising the possibility that it is a not a "citizen" of any state, the effect of which would be to destroy diversity. The Port Authority is41
 a body "corporate and politic" established in 1921 pursuant to a bi-state compact between New York and New Jersey, see N.Y. Unconsol. Law § 6407 (McKinney 2000), and assented to by Congress, see 42 U.S. Stat. 174 (1921). The Port Authority's mission was, and remains, the development of public transportation, terminal, and other facilities of commerce within the statutorily defined Port Authority district, which includes the area in and around New York City harbor. See N.Y. Unconsol. Law § 6403. The Port Authority is governed by a board of commissioners, see id. §§ 6405-06, whose resolutions are essentially legislative acts of the bi-state entity that must be approved by the governors of both states. See id. §§ 7151-52.42
Baron v. Port Auth., 271 F.3d 81, 83 (2d Cir.2001). We have found no case addressing the question of whether the Port Authority can be considered a "citizen" for purposes of diversity jurisdiction, and courts that have addressed this question with respect to other port authorities and similar agencies in other states have reached different conclusions based largely on the level of autonomy enjoyed by the agency. Compare Indiana Port Comm'n v. Bethlehem Steel Corp., 702 F.2d 107, 110 (7th Cir.1983) (holding that "[Indiana Port Commission] is not the `alter ego' of the state of Indiana, and is, in fact, an independent corporate entity seeking to assert its own rights in this action," and, therefore, there was diversity jurisdiction), and C.H. Leavell & Co. v. Bd. of Comm'rs of Port of New Orleans, 424 F.2d 764, 767 (5th Cir.1970) (holding that "[Louisiana] Dock Board is a sufficiently separate entity from the State of Louisiana to sustain diversity jurisdiction") with Tradigrain, Inc. v. Mississippi State Port Auth., 701 F.2d 1131, 1134 (5th Cir.1983) (finding, based on statutes and other factors, that "Mississippi State Port Authority is merely the alter ego of the State of Mississippi, and as such is not a `citizen' for purposes of diversity jurisdiction").43
Although whether the Port Authority is a "citizen" of New York for diversity purposes is apparently an issue of first impression in our circuit, case law has established that it is a political subdivision of the state and, therefore, is not entitled to sovereign immunity. See Feeney v. Port Auth. Trans-Hudson Corp., 873 F.2d 628, 631 (2d Cir.1989) (holding that Eleventh Amendment immunity was inapplicable to "PATH [in part because of] the fact that the compact between New York and New Jersey describes the Port Authority as a `municipal corporate instrumentality,' N.Y. Unconsol. Laws § 6459 (McKinney 1979) and N.J. Stat. Ann. § 32:1-33 (West 1963), language consistent with its being a political subdivision"); see also Japan Airlines Co. v. Port Auth., 178 F.3d 103, 110-12 (2d Cir.1999) (holding, after extensive analysis, "that the Port Authority was not entitled to [either sovereign or] governmental immunity [for case arising out of proprietary conduct], and the district court properly instructed the jury to treat the Port Authority as it would any private corporation"). In light of these rulings, we hold that, as is the case with political subdivisions in general, the Port Authority is not so closely aligned with the two state governments that created it to foreclose its being treated as a citizen of both New York and New Jersey for diversity purposes. See Illinois v. City of Milwaukee, 406 U.S. 91, 97, 92 S.Ct. 1385, 31 L.Ed.2d 712 (1972) ("It is well settled that for the purposes of diversity of citizenship, political subdivisions are citizens of their respective States."). Accordingly, we agree with the Silverstein Parties that complete diversity exists between plaintiff SR International  and all of the defendants in this action.44
We also agree with the Silverstein Parties that supplemental jurisdiction provides jurisdiction over the Silverstein Parties' counterclaims against the other insurers even though some of these insurers may be non-diverse. See 28 U.S.C. § 1367 (setting forth requirements for supplemental jurisdiction); Viacom Int'l, Inc. v. Kearney, 212 F.3d 721, 726-27 (2d Cir. 2000) (observing that § 1367 permits defendants to assert claims against non-diverse third parties in diversity cases); David Siegel, Practice Commentary, "The 1990 Adoption of § 1367, Codifying `Supplemental' Jurisdiction," printed in 28 U.S.C.A. § 1367 at 832-33 (West 1993) (same); see also Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374-77 & n. 18, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978) (holding that whereas plaintiff's claims against non-diverse parties destroyed diversity jurisdiction, ancillary (now supplemental) jurisdiction supported defendant's counterclaims and third-party claims against non-diverse parties); Herrick Co. v. SCS Communications, Inc., 251 F.3d 315, 325 n. 8 (2d Cir.2001) ("The effect of Kroger was therefore `to limit ancillary jurisdiction primarily to claims asserted by parties in a defensive posture, or who did not choose the federal forum. Therefore, at least in diversity cases, ancillary jurisdiction usually is not available for claims asserted by the plaintiff.'") (quoting 13 Charles Alan Wright, Arthur R. Miller and Edward H. Cooper, Federal Practice and Procedure: Jurisdiction § 3523) (emphasis added).45
The Silverstein Parties also assert that there is federal jurisdiction under the Air Transportation Safety and System Stabilization Act of 2001, Pub.L. No. 107-42, § 408(b)(3), 115 Stat. 230, 241 (Sept. 22, 2001), as amended by the Aviation and Transportation Security Act of 2001, Pub.L. No. 107-71, § 201, 115 Stat. 597, 645 (Nov. 19, 2001). That Act, originally passed by Congress to limit the liability of  air carriers for any claims arising from the September 11th attacks, was later amended to extend its protection to, inter alia, any "person with a property interest in the World Trade Center." Id. at § 408(a)(1). The purpose of the Act is to cap the liability of various entities for damages and contribution claims to the limits of their liability insurance coverage. The Act also creates a federal cause of action for any damages claims arising out of the September 11th attacks. Id. at § 408(b)(1). In addition, the Act grants to the District Court for the Southern District of New York "original and exclusive jurisdiction over all actions brought for any claim (including any claim for loss of property, personal injury, or death) resulting from or relating to the terrorist-related aircraft crashes of September 11, 2001." Id. at § 408(b)(3).47
While the other parts of § 408 apply only to liability claims brought against air carriers, World Trade Center property interest holders, and similar entities, the jurisdictional grant of § 408(b)(3) is considerably broader, and its plain language would appear to encompass the instant claims filed by the World Trade Center property interest holders against their insurers — claims that are clearly "related to" the September 11th attacks. The very breadth of this jurisdictional grant, however, raises the question of whether it exceeds the constitutional limitations on Congress's authority to grant jurisdiction to federal courts. See Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 491, 103 S.Ct. 1962, 76 L.Ed.2d 81 (1983) (noting that "Congress may not expand the jurisdiction of the federal courts beyond the bounds established by the Constitution," such as to purely state-law claims). In fact, in the only opinion in this litigation to discuss jurisdiction, the district court, while addressing a different issue, noted that there is "a serious question whether the grant of jurisdiction in the Act applies to this case," and that to avoid the constitutional question presented, it "would be inclined to construe the Act's grant of jurisdiction as not extending to these claims between the insurers and their insureds." SR Int'l Bus. Ins. Co. v. World Trade Ctr. Props. LLC, 2002 WL 1905968, at *2 (S.D.N.Y. Aug.19, 2002) (holding, after analyzing the statute, that the parties' contractual appraisal procedure for determining the amount of loss was not preempted by the Act). The district court ultimately concluded, "[h]owever, [that it] need not decide whether Congress either intended to or could vest this Court with exclusive jurisdiction over an action between the Silverstein Parties and their insurers." Id. at *3.48
We recently acknowledged these same constitutional concerns in a case between foreign reinsurers involving a breach of contract claim arising out of the September 11th terrorist attack, in which we observed that to construe the statute "to encompass all claims for economic loss" relating to the September 11th attacks would raise "serious doubts as to its constitutionality." Canada Life Assurance Co. v. Converium Rückversicherung (Deutschland) AG, 335 F.3d 52, 59 (2d Cir.2003). We declined to "delineate the precise contours of Section 408(b)(3)'s jurisdictional grant," finding it clear that the case then before us, as to which there was no claim or defense that would "require adjudication of any issue of law or fact that concern[ed] the events of September 11," fell outside the statute. Id. at 57.49
Because, as discussed above, this federal action is supported by diversity and supplemental jurisdiction, we need not and do not decide whether there would also be jurisdiction under the Act and thereby avoid unnecessarily addressing these constitutional concerns. Cf. Edward J. DeBartolo  Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988) ("[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress."); United States v. Arrous, 320 F.3d 355, 360 (2d Cir.2003) ("[W]e avoid interpreting statutes in a way that may create constitutional problems . . . .").50
This court has jurisdiction to hear the Silverstein Parties' appeal from the grant of summary judgment in favor of Hartford, Royal, and St. Paul, notwithstanding the lack of a final judgment disposing of all claims against all parties, because the district court entered judgment pursuant to Fed.R.Civ.P. 54(b). We also have jurisdiction over the Silverstein Parties' interlocutory appeal from the denial of their motion for summary judgment against Travelers because the district court certified its decision for interlocutory appeal under 28 U.S.C. § 1292(b). We granted the Silverstein Parties' petition for leave to appeal the denial of summary judgment against Travelers pursuant to 28 U.S.C. § 1292(b) and their motion to expedite and consolidate the appeal with the Silverstein Parties' Rule 54(b) appeal.52
"We review the grant or denial of summary judgment de novo." Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir.2002) (quoting Republic Nat'l Bank v. Delta Air Lines, 263 F.3d 42, 46 (2d Cir.2001)). Summary judgment is appropriate only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Thus, even where facts are disputed, in order to defeat summary judgment, the non-moving party must offer enough evidence to enable a reasonable jury to return a verdict in that  party's favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When ruling on a motion for summary judgment, a court is required to construe the evidence in the light most favorable to the non-moving party and to draw all reasonable inferences in its favor. See id. at 255; Maguire v. Citicorp Retail Servs., Inc., 147 F.3d 232, 235 (2d Cir.1998).54
The district court granted the motions by Hartford, Royal, and St. Paul seeking partial summary judgment on the grounds that each of the insurers had issued a binder that incorporated the terms of the WilProp form and that under the WilProp form's definition of "occurrence" there was only one occurrence on September 11, 2001. See SR Int'l Bus. Ins. Co. v. World Trade Ctr. Props. LLC, 222 F.Supp.2d 385, 393-95, 398-99 (S.D.N.Y.2002) ("Hartford Dec."). The district court found that the only relevant question was what were the terms to which the parties had agreed to be bound pending issuance of a final policy, and thus deemed irrelevant evidence indicating that the parties might have agreed to ultimately issue policies tracking the Travelers policy. Id. at 389. The district court then reviewed each of the negotiating histories between Willis and Hartford, Royal, and St. Paul and analyzed the language of their binders. In part because the only policy form before the parties during these negotiations was the WilProp form furnished by Willis, the district court concluded that as a matter of law each of the three insurers had bound coverage on the basis of the WilProp form, rather than, as the Silverstein Parties contended, the Travelers form. Id. at 393-95, 398. The district court further held that, as a matter of law, under the WilProp form's definition of "occurrence" the damage caused on September 11th was the result of one occurrence, entitling the Silverstein Parties to no more than a single policy limit on each of the insurers' policies. Id. at 399.56
As noted by the district court, "[a]n insurance binder is a unique type of contract." Id. at 388.57
It is a common and necessary practice in the world of insurance, where speed often is of the essence, for the agent to use this quick and informal device to record the giving of protection pending the execution and delivery of a more conventionally detailed policy of insurance. Courts, recognizing that the cryptic nature of binders is born of necessity and that many policy clauses are either stereotypes or mandated by public regulation, are not loath to infer that conditions and limitations usual to the contemplated coverage were intended to be part of the parties' contract during the binder period.58
Employers Commercial Union Ins. Co. v. Firemen's Fund Ins. Co., 45 N.Y.2d 608, 412 N.Y.S.2d 121, 384 N.E.2d 668, 670 (N.Y.1978) (footnote omitted) (quoted in Hartford Dec., 222 F.Supp.2d at 389). Thus, a binder is "a short method of issuing a temporary policy for the convenience of all parties, to continue until the execution of the formal one." Lipman v. Niagara Fire Ins. Co., 121 N.Y. 454, 24 N.E. 699, 700 (1890) (quoted in Hartford Dec., 222 F.Supp.2d at 388). As the New York Court of Appeals has explained,59
[i]t has long been settled in this State that an insurance binder is a temporary or interim policy until a formal policy is issued. A binder provides interim insurance, usually effective as of the date of application, which terminates when a policy is either issued or refused.60
Springer v. Allstate Life Ins. Co., 94 N.Y.2d 645, 710 N.Y.S.2d 298, 731 N.E.2d  1106, 1108 (2000) (internal citations omitted). While not all of the terms of the insurance contract will be set forth in the binder, a binder is nevertheless a fully enforceable "present contract of insurance." Ell Dee Clothing Co. v. Marsh, 247 N.Y. 392, 160 N.E. 651, 652 (1928).61
On appeal, the Silverstein Parties argue that in construing the binders issued by the appellee insurers, the district court erred in rejecting evidence of the insurers' agreement to "follow the [Travelers] form" and that this evidence creates material factual issues in dispute as to whether the WilProp definition of "occurrence" applies to these insurers. The Silverstein Parties explain the practice of "following the form" as follows:62
Whether or not the broker includes a sample policy form with the submission, the industry practice in layered placements is for a lead insurer to act as the negotiator of policy terms on behalf of the participating insurers. In an effort to achieve concurrency (uniformity in coverage terms provided by the participating insurers), the other participating primary and excess insurers customarily agree to "follow the form" of the lead insurer, i.e., to accept the terms and conditions of the program policy. The lead insurer typically emerges from among the carriers on the primary coverage layer; insurers participating solely in excess layers generally do not negotiate the program policy wording.63
Appellants' Br., Dkt. No. 02-9279 ("Appellant's Rule 54(b) Br."), at 20 (internal citations omitted).64
According to the Silverstein Parties' theory of the case, appellees Hartford, St. Paul, and Royal agreed to "follow the [Travelers] form" and, therefore, are bound by the terms of the policy that Travelers issued on September 14, 2001, three days after the World Trade Center was destroyed. In support of this theory, the Silverstein Parties submitted a substantial amount of custom and usage evidence from both expert and fact witnesses concerning the practice of "following the form." The Silverstein Parties further assert that there is evidence demonstrating that each of the three appellees knew the WilProp form was only a starting point for negotiations and that they learned before binding that the Travelers form would be the lead policy. Accordingly, they maintain, appellees' obligations are to be determined under the final policy issued by Travelers on September 14, 2001 (the "September 14 Travelers Policy").65
Contrary to the arguments so vigorously pressed by the Silverstein Parties, however, the question in this case is not whether appellees are bound by the September 14 Travelers policy rather than the WilProp policy circulated by Willis in its Underwriting Submission. As of September 11, 2001, none of the insurers could be bound by either policy because neither one had been issued as the final policy by that  date. See, e.g., Springer, 710 N.Y.S.2d 298, 731 N.E.2d at 1108 (noting that binder and final policy are "two distinct agreements"); Rosenblatt v. Washington County Coop. Ins. Co., 191 A.D.2d 883, 594 N.Y.S.2d 456, 459 (3rd. Dept. 1993) (holding in case where loss occurred prior to the issuance of final policy that "the dispositive issue . . . concerns the risks covered under the binder agreement . . . and this is unaffected by any changes regarding insurance policies issued subsequent to the loss"); Del Bello v. Gen. Accident Ins. Co., 185 A.D.2d 691, 585 N.Y.S.2d 918, 918-19 (4th Dept. 1992) (holding that because binder identified plaintiff as an insured, plaintiff was covered for fire damage even though not so listed in final policy issued post-loss); see also Cardinal v. Mercury Ins. Co., 242 A.D. 98, 273 N.Y.S. 487, 490-91 (3rd.Dept. 1934) (reforming policy to reflect terms of original oral binder for purposes of pre-policy loss), rev'd on other grounds, 266 N.Y. 448, 195 N.E. 148 (1934).66
While the Silverstein Parties may well be correct that in many instances an excess insurer will voluntarily bind itself to another insurer's policy form that has been issued but that it has chosen not to look at despite the opportunity to do so, and that courts will presume the insurer knows and assents to the terms of the unseen document, see, e.g., Progressive Cas. Ins. Co. v. C.A. Reaseguradora Nacional De Venezuela, 991 F.2d 42, 45-47 (2d Cir.1993), it is an entirely different matter for a court of law to impose liability on the basis of another insurer's policy form that has not been issued and, therefore, that the excess insurer has never had the opportunity to review. See, e.g., Designcraft Jewel Indus., Inc. v. Rampart Brokerage Corp., 63 A.D.2d 926, 406 N.Y.S.2d 97, 98 (1st.Dept. 1978) (refusing to reform excess policy or hold excess insurer liable for excess loss arising from primary policy's disaggregation of building's primary insurance limits on per-floor basis where excess insurer was neither informed about disaggregation term nor shown underlying primary policy prior to issuance of binder), aff'd by, 46 N.Y.2d 981, 415 N.Y.S.2d 991, 389 N.E.2d 472 (N.Y.1979). The Silverstein Parties acknowledge as much when they state in their brief:67
Once the final primary policy is issued, it is customarily sent to all participating insurers for their review. Unless it has waived its agreement to policy language, if an insurer that has agreed to "follow the form" has good-faith objections to the form that has emerged from that negotiation and those objections cannot be resolved consensually, industry custom allows such an insurer to cancel its coverage prospectively after reasonable prior notification to the insured so that the insured — if it is unwilling to acquiesce in the change — can arrange for a replacement insurer. The participating insurer may not, however, cancel retroactively if a loss occurs before the final policy form is issued and presented for its approval.68
Appellant's Rule 54(b) Br. at 26-27 (internal citations and footnote omitted). This passage makes manifest the counterintuitive nature of the Silverstein Parties' position that an insurer who agrees in a binder to "follow form" is thereby bound sight unseen to a policy that has not been finalized and issued, but only until the insurer is actually given an opportunity to see the  policy and review it, at which point it can cancel its coverage and no longer be bound. The Silverstein Parties' further observation that the insurer cannot cancel retroactively, although offered as support for their claim that the insurer is bound by the final policy form with respect to any losses that occurred before the final policy issued, is gratuitous because it is well settled that the insurer is bound retrospectively not by the final policy form, but by the binder, a distinct agreement the terms of which the insurer negotiated for itself. Despite the Silverstein Parties' arguments to the contrary, therefore, we conclude that the September 14 Travelers policy, issued three days after the loss at issue here, has no bearing on the Rule 54(b) appeal.69
The only question we must decide is what the term "occurrence" means under the specific binders that appellees issued and that were in force when the planes destroyed the WTC on September 11, 2001. Should we infer that the parties to the binder intended to: (1) incorporate the specific definition of "occurrence" contained in the WilProp policy; (2) forgo a specific definition (as is the case in the customary Travelers form); or (3) treat "occurrence" in some other fashion? The evidence offered by the Silverstein Parties to demonstrate that the appellees agreed that they would "follow the [Travelers] form" at such time as it might issue is relevant only if, and to the extent that, the facts of the parties' pre-binder negotiations can support a finding that the parties intended the insurer's binder, the policy that was to be in effect until the Travelers form was issued, to incorporate the terms, not of the September 14 Travelers policy ultimately issued, but of Travelers' customary or specimen form (the "Travelers form").70
As we have explained, a binder, while an enforceable contract in its own right, is necessarily incomplete in some respect (otherwise a subsequent formal policy would be unnecessary). Thus, as the New York courts have long recognized, terms must often be implied to determine the obligations to which the parties intended to be bound. Hicks v. British Am. Assurance Co., 162 N.Y. 284, 56 N.E. 743, 744 (1900) ("The law reads into the contract the standard policy, whether it be referred to in terms or not."); Lipman, 24 N.E. at 700 (construing binder as necessarily incorporating terms of a standard policy). "To determine the contents of a binder, New York courts generally look to (1) the specific terms contained in the binder or incorporated by reference, and (2) to the extent necessary as gap-fillers, the terms included in the usual policy currently in use by the insurance company" or those required by statute. Lapenta v. Gen. Acc. Fire & Life Assurance Corp., 62 A.D.2d 1145, 404 N.Y.S.2d 182, 184 (4th Dept. 1978); see Sherri v. Nat'l Sur. Co., 243 N.Y. 266, 153 N.E. 70, 71 (1926) (noting that a binder incorporates all the obligations "according to the terms of the policy in ordinary use by the [issuing] company") (internal quotation marks omitted); see also Ell Dee Clothing, 160 N.E. at 653 ("[W]hether the binder is to be interpreted by itself or with the addition of implied conditions, the minds of the parties meet. And in the absence of state regulations, it is for the assurer to show that conditions are implied and what they are."). We agree, therefore, with the district court's observation that "[t]he terms of a binder are not left to future negotiation. . . . The law of New York with respect to binders does not look to the negotiations of the parties to see what terms might ultimately have been incorporated into a formal policy." Hartford Dec., 222 F.Supp.2d at 388-89. Rather, the negotiations are examined to determine what terms the parties intended to incorporate into the binder.71
 In deciding which terms are to be implied in a binder, reliance may be placed on the extrinsic evidence of the parties' pre-binder negotiations. In particular, we believe that any policy form that was exchanged in the process of negotiating the binder, together with any express modifications to that form, is likely the most reliable manifestation of the terms by which the parties intended to be bound while the binder was in effect. In the absence of such a policy form underlying the negotiations or sufficient extrinsic evidence of the negotiations to determine the parties' intentions, the terms to be implied would likely be the customary terms of the insurer's own form, see Sherri, 153 N.E. at 71; Hicks, 56 N.E. at 744; Lipman, 24 N.E. at 700, unless there is evidence indicating that an understanding existed between the parties that a different policy form would apply to the binder and that the insurer was aware of its terms.72
Therefore, with regard to the case at hand, whether an insurer in the WTC program agreed to "follow the [Travelers] form" is largely irrelevant to the inquiry of what terms should be implied in that insurer's binder unless it can be shown that the insurer was provided with a Travelers form (or some other form omitting a definition for occurrence) prior to issuing its binder. In the absence of such evidence, we believe that the fact that an insurer agreed to follow the lead of Travelers and demonstrated an intention to be bound by the final policy form as ultimately negotiated by Travelers would be relevant only to the parties' post-binder relationship, which is of no import to this case. Such an agreement or understanding, whether explicit or derived from custom and usage, would not provide a basis for incorporating into the binder the terms contained in the Travelers form.73
Applying this analytical framework to the evidence presented on summary judgment, we agree with the district court that there can be no genuine dispute here that the binders issued by Hartford, Royal, and St. Paul were issued on the basis of negotiations involving the WilProp form, a copy of which had been provided to each insurer by Silverstein Properties' insurance broker, Willis, and that the parties intended and understood the binders to incorporate the terms of the WilProp form except as expressly modified.74
Our conclusion is supported by the fact that until the total destruction of the WTC on September 11th, it was in Silverstein Properties' interest to incorporate into their insurance coverage a definition of "occurrence" that would minimize the number of "occurrences" in order to minimize the number of deductibles that would apply in the event of a loss or series of losses. This goal was accomplished by the WilProp form's inclusive definition of "occurrence." When Travelers held out for using its own form in its negotiations with Willis in August 2001, Timothy Boyd, a vice president of Willis, reported that fact to a co-broker, stating, "Although other players have signed binders based on WilProp, Travelers is insisting we use their form and this is under review." Apart from its potential as a party admission, the statement that "players [other than Travelers] have signed binders based on WilProp," made by the Silverstein Parties' agent on August 3, 2001 — after the binders were in place and before the WTC was destroyed — is consistent with our review of the binder negotiations, to which we now turn.75
On June 7, 2001, Boyd of Willis sent John Gemma of Hartford an Underwriting Submission that included the WilProp  form. Gemma acknowledged at his deposition that when he received these materials, he understood the WilProp form was only a draft and would ultimately require amendment. Gemma responded to Boyd with a proposal in which he offered to provide insurance with a limit of $50 million in excess of $75 million per occurrence. With respect to the applicable form, Gemma specified, "Manuscript Forms Submitted With Attached Amendments," enclosed several pages of amendments to the WilProp form and additional exclusions, and specifically noted that the policy was subject to additional exclusionary endorsements. Gemma made no change to the WilProp definition of occurrence. Boyd stated at his deposition that he understood that Gemma's reference to the manuscript form was to the WilProp form.77
Boyd later asked Gemma to participate in a different layer of excess insurance. On July 9, Gemma sent Boyd a revised quote in identical form to the first for $50 million in excess of $50 million. On July 12, however, Gemma e-mailed Boyd that Hartford's participation would be limited to $25 million. At his deposition, Boyd testified that when he called to complain about the decrease in coverage, he informed Gemma that Travelers was insisting on the use of their policy form. According to Boyd, Gemma did not object when Boyd mentioned Travelers; he simply asked for a copy of the Travelers form once it was finalized. Gemma testified that Boyd never told him that the Travelers form was going to be the operative form. In response to Boyd's complaint about the decreased coverage, Gemma obtained approval from his superiors to raise the Hartford limit to $32 million. The e-mail from Gemma confirming the increased limit contained no other terms. Boyd e-mailed back that Willis was pleased to bind participation at $32 million, adding that "[w]e will issue formal documentation soonest." No specific terms other than premiums and the extent of coverage were included in the e-mail.78
On July 19, 2001, Gemma sent Boyd a form he referred to as the "outline of our property BINDER." The binder outline specified that the policy form would be the "Manuscript Forms Submitted With Attached Amendments." Except for the coverage limits and certain other changes not relevant here, Boyd understood that Gemma was making the same offer he had made before. On July 20, 2001, Boyd sent Gemma an e-mail attaching a binder. The e-mail said, "We are working diligently with primary carriers to refine policy form. Attached is binder per specs." In a section denominated "Property and Time Element Covered," the binder stated, "And as incorporated into the manuscript form, in conjunction with the contract between the Port Authority of New York and New Jersey as ultimately agreed." Gemma made changes to the binder, initialed and signed it, and returned it to Boyd. He did not change the language in the "Property and Time Element Covered" section, but did change a portion of the exclusions section from "Per Policy Form as to be advised," to "Per Policy Form as quoted." Gemma acknowledged that by failing to strike out the language in the "Property and Time Element Covered" section, he agreed to that language, but he did not state that he understood the phrase to be referring to the Travelers form.79
Hartford's New York underwriting office, which was located in the WTC, was destroyed on September 11th. Following the attack, Gemma asked Boyd to provide him with copies of all the documents and e-mails that he had sent to Boyd during the course of negotiations so that Hartford's files could be reconstructed. Gemma stated at deposition that he specifically asked  Boyd to send him a copy of the marked-up WilProp form upon which he had based his quote and that Boyd did not question the relevance of the WilProp form to Hartford's coverage. Boyd testified, however, that he again mentioned he was working with the Travelers form and that Gemma asked for a copy as soon as possible. On October 1, 2001, Willis forwarded a number of e-mails to Gemma and his supervisor including an e-mail that attached the original June 7, 2001, Willis submission, including the WilProp form. Willis did not, however, send Gemma's marked-up copy. On the same date, a Willis representative sent Hartford another e-mail that contained as an attachment a document identified in the e-mail as the "underlying policy," which may have been a copy of the Traveler's policy; the e-mail further stated that "[t]he excess following form will be out very shortly."80
On October 9, 2001, Boyd sent Gemma a fax, which read:81
Attached is your original authorization culled from our files. As you know, we evolved from there, both on a participation level and on a forms level.82
Ultimately your participation was amended and when we discussed forms, I informed you that the form we would use would be Travelers.83
Accordingly, these forms [have been] sent under separate cover through claims channels. I have sent you the participant list and the agreed form via electronic mail. . . .84
Boyd testified that he never received a response to this fax from Gemma.85
Despite the fact that each of the documents generated during Willis' negotiations with Hartford prior to the issuance of a binder referenced a particular form that was understood by the participants at the time to be the WilProp form together with Gemma's amendments, the Silverstein Parties argue that a reasonable jury could find that Hartford bound coverage on the basis of the Travelers form in light of: (1) expert testimony that it was insurance industry practice for excess carriers bidding in a layered program to agree to "follow the form" and that the insurer must specify in the binder if it does not want to "follow the form"; (2) expert testimony that an agreement to follow form is typically evidenced by words in the binder such as "wording to be agreed," "as ultimately agreed," "to be advised," or "subject to review and acceptance [of a primary policy]"; (3) Boyd's testimony that he informed Gemma that Travelers was insisting on the use of its form and that Gemma did not object, and instead simply asked for a copy of the Travelers form; (4) the presence in the Hartford binder of the words, "[a]nd as incorporated into the manuscript form, in conjunction with the contract between the [Port Authority] as ultimately agreed"; and (5) Gemma's failure to object when Boyd said to him after September 11th that he had previously informed him that Travelers was the governing policy.86
None of these arguments has merit. Boyd's testimony that he informed Gemma on July 12 that Travelers was insisting on the use of its own policy, while perhaps interesting news, is legally irrelevant because Gemma reiterated in his binder outline on July 19, 2001 that he would be bound by the manuscript form submitted, i.e., the WilProp form. Therefore, at least for purposes of the binder, Gemma plainly rejected any proposal to switch from the WilProp form to the Travelers form. Boyd's similar claim concerning his post-September 11th conversation with Gemma is also irrelevant because any such conversation could not alter the terms of the binder that was in force on September 11th. That Gemma failed to respond to  Boyd's October 2001 fax is irrelevant for the same reason. Moreover, it is a well settled rule that assent cannot be read into a party's silence in response to another party's assertion unless silence would have a tendency to mislead. See, e.g., Albrecht Chem. Co. v. Anderson Trading Corp., 298 N.Y. 437, 84 N.E.2d 625, 626 (1949); see also Hellenic Lines Ltd. v. Gulf Oil Corp., 340 F.2d 398, 401 (2d Cir.1965). By the time Boyd sent his fax in October 2001, the WTC buildings had long since collapsed and the coverage was what it was. Boyd obviously could not have been misled prior to September 11th by Gemma's silence in October.87
The Silverstein Parties urge that the Hartford binder's language, "And as incorporated into the manuscript form, in conjunction with the contract between the Port Authority of New York and New Jersey as ultimately agreed," creates a disputed issue of fact that defeats summary judgment because it reasonably can be interpreted as referring to, and hence incorporating by reference, the as-yet-to-be-agreed Travelers form. The district court construed this language, which appeared in the Hartford binder under the heading "Property and Time Element Covered," as "indicat[ing] only that the parties were agreeing that the property to be insured would include all the property covered in the Silverstein Parties' contract with the Port Authority as that contract might be amended in their negotiations." Hartford Dec., 222 F.Supp.2d at 392.88
We agree with the district court's interpretation, particularly given that the binder language, which was drafted by Willis, appears to have been culled from the section in the Willis Underwriting Submission, also entitled "Property and Time Element Covered," that described in detail the specific types of property and time-related interests for which coverage was sought, and that concluded with the statement "And as incorporated into the manuscript form, in conjunction with the contract between the Port Authority of New York and New Jersey as attached." The only difference was the change in the binder from "as attached" to "as ultimately agreed." This difference does nothing to undermine the district court's interpretation because the "as ultimately agreed" language can reasonably be read to refer to the scope of property subject to coverage (which would seem to be the only reason to refer to the lease), and not to any final form of insurance policy. From all these references to the ultimate agreement between the Port Authority and Silverstein Properties, the most that can be gleaned is that the precise parameters of the property covered by the insurance would have to await the finalization of that contract. No factfinder could reasonably find that these references related to following the form of Travelers as the lead insurer.89
Indeed, the district court's interpretation of the language is echoed in Section VIII of the Underwriting Submission, which states,90
Policy Form and Contract between Silverstein and the [Port Authority] are attached. DRAFT WilProp for Real Estate Risks is attached. We anticipate that this form will ultimately require amendment to comply with the Contract between Silverstein Properties, Inc. and the [Port Authority]. In the meantime, we provide this document as a starting point.91
Further support for the district court's interpretation is found in the June 14, 2001 e-mail sent by Boyd to Royal Indemnity to solicit its participation in the WTC insurance program. In the e-mail, Boyd explained, "We have included [the WilProp form] as a guideline form [in the attached Underwriting Submission], although ultimate  form must meet property definitions as contained in the contract with PA and Silverstein" (emphasis added).92
Finally, the Silverstein Parties make much of the fact that at deposition, Gemma, when asked to review the original language contained in the Underwriting Submission, stated that he understood the phrase "manuscript form . . . as attached" to refer to the WilProp form that had been attached to the Underwriting Submission. But Gemma's statement does not equate to an acknowledgment that the revised phrase contained in the Hartford binder referred to the as-yet-to-be-agreed-upon Travelers form. And even interpreting the language in the light most favorable to the Silverstein Properties for purposes of summary judgment, this language does not create a genuine dispute because, as we have explained, even if this language meant that Hartford agreed to "follow form," and specifically, the Travelers form, "as ultimately agreed," it simply does not follow that Hartford thereby incorporated into its binder the terms of the as-yet-to-be-agreed Travelers form.93
In short, we find nothing in the Hartford binder language — including the change of the Underwriting Submission language "as attached" to "as ultimately agreed" — to support the Silverstein Parties' claim that the parties intended to alter Hartford's repeated reservation of its right to use the WilProp form as amended by Hartford as the basis upon which its binder was issued. Indeed, the opposite is apparent in the July 19, 2001 e-mail Boyd sent to Gemma together with the draft binder, in which he stated, "We are working diligently with primary carriers to refine policy form. Attached is binder per specs." The first sentence in this e-mail suggests that no policy form (or "lead insurer" for that matter) had been agreed to by anyone as of July 19, 2001. The second sentence supports the view that the binder Boyd sent to Gemma did not alter any of the terms contained in Gemma's quote, including Gemma's insistence that the binder issue on the basis of the specifications and the WilProp form submitted with the Underwriting Submission together with Gemma's amendments.94
Accordingly, we agree with the district court's conclusion that there can be no genuine dispute that Hartford bound coverage on the basis of the WilProp form.95
On June 14, 2001, Boyd sent an e-mail to Mike Koenig of Royal containing the Underwriting Submission and the WilProp form as attachments. Koenig forwarded the Underwriting Submission to another Royal underwriter, Larry Stapp, who advised Koenig by e-mail on July 9, 2001, that97
[b]ased on our conversation of today and review go ahead and offer [Willis] maximum of $100MM participation excess of $500MM at the $100K pricing we talked about. Make the participation contingent on receiving and reviewing the primary policy wording. You can use the Willis Form Review I sent you when you get the policy and just pick out the key items. Being excess of $500MM we will probably not want many form limitations.98
The "Willis Form Review" referred to in the e-mail was a detailed review of a Willis policy form that pre-dated the WilProp form and did not include a definition of occurrence.99
 Koenig submitted an underwriting proposal on behalf of Royal to Willis on July 9, 2001. In an accompanying fax, he stated:100
Attached please find our authorization for the above risk. As discussed, Royal Indemnity Co. can offer $100MM (20%) part of $500MM xs $500MM at a layer price of $500,000 net. I have included some form changes that we would be looking for; however, this authorization would be subject to review and acceptance of the finalized manuscript form.101
Under the heading "Policy Form," the Royal authorization specified, "Willis manuscript policy form as submitted except for the changes noted in the addendum to this quote. Final policy form wording is to be determined subject to review and acceptance of the final primary policy form wording." (The only Willis manuscript policy form that was submitted was the WilProp form.) Similarly, under the heading "Covered Perils," the authorization qualified the perils covered with the condition, "as per the Willis manuscript policy form with the changes described below. Subject to review and acceptance of the primary manuscript policy form," and, under the heading "Additional Conditions," stated, "This authorization is subject to review and acceptance of the finalized form being used by the primary insurers." In an addendum to the authorization, Royal specified certain revisions to the "manuscript form," which clearly pertained to the WilProp form. One such revision required the deletion of a paragraph in a section of the WilProp form entitled "Participation." The deleted paragraph provided a space for the designation of a lead underwriter and would have required Royal to "abide by and accept decisions of the Lead Underwriter with respect to underwriting, policy administration, and claims settlement."102
While the language of the authorization demonstrates that Royal contemplated that the wording of the final policy form was tentative, it is clear from the evidence that prior to issuing its authorization, Royal anticipated that the final policy form would be based on the WilProp form. An internal Royal memorandum analyzing the WTC program that was written before Royal issued its authorization states:103
Willis property form is very broad and would need substantial revisions. However based on our high attachment point, we would have little opportunity to dictate form changes. We should insist on a Y2K exclusion and delete all computer virus coverage. We should also try to limit the ingress/egress and civil authority coverages. Underlying deductibles will be [ ] $500,000 or $1,000,000 our attachment point is truly exposed only to catastrophic losses.104
Elsewhere in the memorandum, it is stated that the "coverage form" will be "Willis manuscript."105
On July 12, 2001, Koenig informed Boyd that Royal had altered some of the financial terms of its authorization. In an e-mail confirming the change, Koenig stated that "[a]ll other terms and conditions  would remain as per [Royal's] original authorization." On July 17, 2001, Boyd e-mailed Koenig, telling him that Willis had been unable to assign to Royal the full amount of coverage that had been authorized. Koenig responded on July 19, providing Boyd with a policy number and requesting that Boyd "forward a copy of the finalized version of the manuscript form at [his] earliest convenience." On July 20, Boyd sent Koenig a binder containing largely the same language as the binder he had sent to Hartford's Gemma. The cover note stated, "Attached is a copy of the binder. We are working diligently to refine policy with primary carriers." Boyd stated in his deposition that sometime "during the middle weeks of July" he had a conversation with Koenig in which he informed Koenig "that the program would be based upon the Travelers form." Koenig memorialized that conversation in a handwritten note dated July 20 as follows:106
Per discussion with Tim Boyd of Willis, terms and conditions of policy are likely to change, becoming more restrictive as form continues to be negotiated with the primary carriers. End result will most likely be a modified version of the Travelers policy form. I told Tim that we would bind subject to the policy form changes and coverage terms per our authorization (with the exception of the revised layer). Tim agreed and told me that this binder was a formality, and it will be revised in our favor once the primary policy form is finished.107
On that same day, Koenig faxed Boyd the signed Royal binder after making several changes to the form he had received from Boyd. The fax cover sheet explained that Koenig "made some corrections to the binder in order to make it in accordance with the terms [Royal] authorized." Among the handwritten changes to the binder, Koenig added at the end of the binder the qualification, "Bound as amended and per our authorization." In addition, next to the statement in the "Property and Time Element" section, "And as incorporated into the manuscript form, in conjunction with the contract between the [Port Authority] as ultimately agreed," Koenig wrote, "Subject to Form revisions as described in our authorization." Willis did not qualify its acceptance of Royal's binder. According to Boyd's deposition, he told Koenig at some point in August, after Royal issued its binder, that he was "working very diligently to try and finalize the Travelers form." Koenig asked for a copy of the form but expressed no objection to its use in either the July or the later conversation.108
We reject as frivolous the Silverstein Parties' arguments that Royal's authorization and binder contain ambiguities that create material issues of fact precluding summary judgment. As the district court noted in its decision granting summary judgment to Royal, "[i]t is hard to imagine a case in which it could be more certain that an insurer's binder was based on the WilProp form than that of [Royal]." Hartford Dec., 222 F.Supp.2d at 395. The Silverstein Parties nevertheless contend that the fact that Koenig did not eliminate the words "as ultimately agreed" from the phrase referencing the manuscript form in the "Property and Time Element" section and, instead, only added the phrase "Subject to form revisions as described in our authorization" demonstrates that Royal understood the phrase to refer to the final policy form that would be negotiated between Willis and the lead underwriter rather than to the agreement between the Port Authority and Silverstein Properties. Even if the Silverstein Parties' strained interpretation is accurate, the phrase simply sets forth the conditions under which Royal agreed to be bound by the final  policy form when it issued in the future; it does not support a finding that the terms upon which Royal issued its presently enforceable binder were anything other than the WilProp form as amended by Royal in its authorization.109
The Silverstein Parties also claim that even though the binder expressly binds "as previously authorized," the prior authorization itself is ambiguous because it stated, "Final policy form wording is to be determined subject to review and acceptance of the final primary policy form wording," and "[t]he insurance provided by Royal & SunAlliance will not be broader than the terms and conditions provided by any other participating insurer." This argument too, misses the mark, because the assertedly ambiguous statements refer to Royal's reservation of its right to review the wording of the final policy form before being bound by it, and therefore has no bearing on the terms that were intended to be incorporated into the binder that would govern Royal's coverage until that time. The Silverstein Parties' reliance on the phrase "subject to review and acceptance of the final primary policy form wording" once again ignores the basic tenet that the binder and the policy to be issued are two separate contracts of insurance, containing two separate sets of terms. See Springer, 710 N.Y.S.2d 298, 731 N.E.2d at 1108 (noting that binder and final policy are "two distinct agreements"); Rosenblatt, 594 N.Y.S.2d at 459 (noting that "the dispositive issue here concerns the risks covered under the binder agreement . . ., and this is unaffected by any changes regarding insurance policies issued subsequent to the loss").110
The Silverstein Parties argue that there is another ambiguity, this one in the binder's section on exclusions, in which Koenig wrote that a Y2K exclusion was to be included, but otherwise left unchanged the binder's statement that exclusions were "Per Policy Form as to be advised." At most, however, this phrase creates an ambiguity only with respect to the binder's terms concerning exclusions. Because no other part of the binder contains similar language, the applicability of the amended WilProp form would remain intact, including its definition of occurrence.111
Finally, the Silverstein Parties argue that Royal's conduct after September 11th demonstrates that it understood that the Travelers form applied to Royal's coverage. Specifically, the Silverstein Parties point out that on September 20, 2001, RSUI, the other Royal division that issued coverage in the WTC program, issued a Travelers form with an RSUI declarations page attached as its primary policy. According to Boyd's deposition, sometime in the fall, after RSUI issued its policy, he asked Koenig if Royal "would follow the same procedure" as RSUI and issue an excess policy based on the Travelers form, and Koenig indicated to him that what he would "like to do is sign and return the [Travelers] form and if you have to make some changes to it we do it by endorsement." Although this evidence may demonstrate equivocation on the part of Royal as to whether it should issue a final policy based on the Travelers form, it sheds no light on the only question before us, which is whether the July 20 binder issued by Royal was based on the WilProp or Travelers form. Moreover, other actions by Royal occurring after September 11th only confirm the district court's conclusion that the Royal binder was issued on the basis of the WilProp form. For example, on October 3, 2001, Koenig sent Brian Doyle, a Royal property executive, an e-mail attaching a copy of his "initial authorization, the signed binder and the Willis manuscript form that our quote was based on." Koenig added, "[o]ur quote was based on the Willis form and was subject to Best  Terms. I also stated that our authorization would be subject to review and acceptance of the final primary policy wording." On October 15, 2001, Boyd e-mailed to Koenig an excess policy form drafted on the basis of the Travelers primary policy. On October 19, Koenig forwarded that e-mail to his superiors, stating:112
I received this email from Willis regarding the excess form. The excess form still has not been finalized. I did express to the broker my discomfort of having the insured involved in drafting the form after the loss (and I reminded him that we quoted and bound coverage based on the Willis form). I have not issued anything yet or responded in writing to this email, and per my discussion with Bob Medeiros today, I wanted to get your input and guidance before I issued the policy.113
On October 26, 2001, Doyle responded to Koenig's e-mail, stating, "Assume that we won't be signing on to this form since our authorization was based around the Willis manuscript policy and we were only presented with the Traveler's form post 9/11. I also see here that the policy issuance date is listed as 9/14."114
Viewing this evidence together with the language of the Royal authorization and binder and the parties' pre-binder negotiations, we agree with the district court that there can be no reasonable dispute that the Royal binder was issued on the basis of the WilProp form.115
On July 3, 2001, Harry Tucker of Stewart Smith, Willis's wholesale brokerage affiliate, e-mailed Carol Springett-King of St. Paul an abbreviated version of the Underwriting Submission. Although the submission referred to the "manuscript form," it did not annex or reference by name the WilProp or Travelers forms. Tucker, however, provided Springett-King with a copy of the WilProp form on July 9, 2001. The form was accompanied by a message stating that the policy was the "World Trade Center draft policy wording." At his deposition, Tucker could not identify any writing notifying Springett-King prior to September 11th that the Travelers form or any form other than the WilProp form was to be used for the final policy.117
Springett-King testified at deposition that she did not do a form review of the WilProp form118
[b]ecause it wasn't the final form. . . . Meaning that they were working on the language [in the WilProp form], and it had not been finalized. And they needed to bind coverage fairly quickly, so the understanding was that we would negotiate the form language, and we would get a copy of the final approved form, and we would be able to review it then.119
Springett-King also testified that it was her understanding that she would be following Willis's broker's manuscript form as the primary form, but that she would be allowed to review it and make changes by endorsement when she received a final form.120
On July 11, 2001, Springett-King called Tucker and quoted a rate of $1500 per million for $30 million of coverage in the layer excess of $250 million. On July 18, Tucker sent Springett-King an e-mail memorializing her quote and asking Springett-King to "confirm coverage bound with an assigned policy number by return e-mail." Springett-King sent the policy number and acknowledged at deposition that by doing so she bound coverage. In her e-mail to Tucker she stated that she would "send a formal binder shortly," but she never did so. On July 23, 2001, Stewart Smith sent Springett-King a Confirmation of Insurance, which, under the heading "Policy Form," stated "Manuscript  Form to be agreed." In the accompanying cover letter, Michele Smith of Stewart Smith asked Springett-King to review the form carefully and to advise her if the confirmation did not accord with her records. Smith added, "We look forward to receiving the policy in due course." Tucker testified that he drafted the Confirmation of Insurance, and that his reference to "Manuscript Form to be agreed" meant that negotiations were ongoing with St. Paul as well as with all the other insurers concerning what the final form would be. He further testified that, as of July 23, he did not know what form or whose form that would be.121
St. Paul's situation differs from Hartford's and Royal's in two significant respects. First, Springett-King's binder, which was merely a policy number furnished after receiving a bare-bones request from Tucker for coverage, did not indicate that she was binding based on the WilProp form. Second, as noted by the district court, "[t]here is no evidence that St. Paul was informed of Travelers' participation in the World Trade Center insurance program at any time prior to September 11th." Hartford Dec., 222 F.Supp.2d at 396.122
In granting summary judgment in favor of St. Paul, the district court held that, although it might be inclined to deny summary judgment on the ground that Springett-King had not even read the WilProp form before binding coverage, it was not "empowered to impose its own conception of what the parties should or might have undertaken." Hartford Dec., 222 F.Supp.2d at 397 (internal quotation marks omitted). Recognizing the well settled principle that a party is bound to a contract it signs even if it has not read it, see, e.g., Caloric Stove Corp. v. Chemical Bank & Trust Co., 205 F.2d 492, 495 (2d Cir. 1953) (L.Hand, J.) (noting that "the law of New York in this regard is the same as the general law of contracts: i.e., if a party to a written contract signs it, he is bound by its terms, whatever these may be," even if he has not read it) (citing Pimpinello v. Swift & Co., 253 N.Y. 159, 170 N.E. 530, 531 (N.Y.1930)); see also Pimpinello, 170 N.E. at 531 ("If the signer could read the instrument, not to have read it was gross negligence; if he could not read it, not to procure it to be read was equally negligent; in either case the writing binds him."), the district court found that St. Paul bound coverage on the basis of the WilProp form because it was a part of the WTC program solicitation, the terms of which Springett-King accepted in issuing the St. Paul binder. Hartford Dec., 222 F.Supp.2d at 397.123
The district court also rejected the Silverstein Parties' argument that the Confirmation of Insurance's statement, "Manuscript Form to be agreed," evidenced Springett-King's agreement to follow form, reasoning that an agreement to follow form without knowing which form or who would be drafting it would be an unenforceable agreement to agree. Id. at 398. While we are inclined to agree with the Silverstein Parties that an insurer's  agreement to follow form without knowing which form would ultimately be adopted does not render the insurance binder it issues an unenforceable "agreement to agree," the issue here is not whether St. Paul would have been bound to follow the Travelers final policy form when it issued. Rather, it is which policy St. Paul understood to be the policy form upon which it based its binder. Here the testimony of both Tucker and Springett-King makes plain that Springett-King had no reason to think that the policy form would be anything other than a modified version of the WilProp form. Accordingly, we agree with the district court's sound reasoning that because the only policy form presented to Springett-King was the WilProp form and because she was not informed about Travelers' participation in the WTC program, there can be no genuine dispute that the binder she issued on behalf of St. Paul incorporated the terms of the WilProp form.124
Our conclusion that each of the three appellees in the Rule 54(b) appeal bound coverage on the basis of the WilProp form leaves only the Silverstein Parties' claim that there are issues of fact as to whether there were one or two occurrences on September 11th under the WilProp form's definition. As noted earlier, the WilProp form contains the following definition:126
"Occurrence" shall mean all losses or damages that are attributable directly or indirectly to one cause or to one series of similar causes. All such losses will be added together and the total amount of such losses will be treated as one occurrence irrespective of the period of time or area over which such losses occur.127
Hartford Dec., 222 F.Supp.2d at 398. Although the Silverstein Parties attempt to argue that this definition is ambiguous, we agree with the district court that no finder of fact could reasonably fail to find that the intentional crashes into the WTC of two hijacked airplanes sixteen minutes apart as a result of a single, coordinated plan of attack was, at the least, a "series of similar causes." Accordingly, we agree with the district court that under the WilProp definition, the events of September 11th constitute a single occurrence as a matter of law.128
The Silverstein Parties' appeal from the denial of their motion for summary judgment against Travelers raises a different set of issues from those just discussed. This motion was based chiefly on the argument that where an insurance policy uses the term "occurrence" without defining the term, then, as a matter of law, the term's meaning is not ambiguous and must be decided by reference to well established New York legal precedent. The Silverstein Parties further argue that under the definition of "occurrence" established by New York law, the events of September 11th constituted two occurrences as a matter of law.130
As was the case with the Rule 54(b) appeal, we review the district court's denial of the Silverstein Parties' motion for summary judgment against Travelers de novo. See Gibbs-Alfano, 281 F.3d at 18 ("We review the . . . denial of summary judgment de novo.") (internal quotation marks omitted). However, whereas in the Rule 54(b) appeal, we construed the evidence in the light most favorable to the Silverstein Parties, in this § 1292(b) appeal, we must construe the evidence in the light most favorable to non-movant Travelers. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Maguire, 147 F.3d at 235. Before turning to the Silverstein Parties'  arguments, we briefly review the history of the Travelers binder and its treatment by the district court.131
On June 7, 2001, Boyd sent an e-mail to James B. Coyle, III, an underwriter at Travelers, that included both the Underwriting Submission for the WTC and the WilProp form. In an affidavit submitted in opposition to the Silverstein Parties' motion, Coyle attested that he responded to Boyd's offer by stating that if Travelers were to participate in the primary layer, it would insist on using its own form, but that Travelers would agree to the use of the WilProp form if Travelers participated only in the excess layers. At deposition, Boyd testified that he told Coyle that if Travelers would permit changes to its form to meet the Silverstein Properties' needs, Silverstein Properties would accept the Travelers form. On July 9, Coyle e-mailed to Boyd an authorization for coverage, to which he attached Travelers' specimen excess policy. Two days later, on July 11, Coyle e-mailed Boyd again setting forth a revised authorization for coverage and attaching Travelers' specimen primary policy. On July 17, Boyd e-mailed Coyle, stating that Willis was "pleased to bind [Travelers'] participation." Coyle's colleague Robert Malm confirmed Travelers' coverage by e-mail on July 18. On July 20, Boyd e-mailed to Travelers a binder similar to the one he had sent to Hartford and Royal, stating, "Attached is Binder to be used with Marketplace. We are aware of use of Travelers Form requirement and are reviewing same to make sure we and you agree where we can amend if need be. In the meantime, went out with specs as binder." Although Travelers never returned a signed copy of the binder, the parties agree that Travelers had bound coverage as of July 18.133
After July 18, Boyd and Fenn Harvey, also of Willis, reviewed the WilProp and Travelers forms to identify the areas of difference between the two forms. Boyd then submitted a list of more than 76 differences to Travelers as a starting point for negotiating the terms of the final policy form. The list did not identify the presence or absence of a definition of "occurrence" as a point of difference between the two. During the next several weeks, the parties met to negotiate policy terms and exchanged drafts of the policy. By September 11th, however, the parties had not agreed to a final policy form. Following the destruction of the WTC, on either September 12 or 13, Boyd asked Coyle for a copy of the policy incorporating the changes that had been agreed to as of September 10, 2001. Boyd stated at deposition that he and Coyle agreed to freeze the draft as of that date. On September 14, 2001, Coyle issued the Travelers Policy for final review and approval by Silverstein Properties.134
On June 3, 2002, the district court denied the Silverstein Parties' motion for summary judgment against Travelers. See SR Int'l Bus. Ins. Co. v. World Trade Ctr. Props. LLC, 2002 WL 1163577 (S.D.N.Y. June 3, 2002) ("Travelers Dec."). In construing Travelers' binder, which incorporated by reference the Travelers form, the district court found136
that the dispositive issue on this motion is whether the term "occurrence" has such a clear and unambiguous meaning that the trier of fact should be barred from considering the available extrinsic evidence concerning the meaning that the parties gave to that term when they were negotiating the insurance coverage for the World Trade Center.137
 Id. at *3. The district court then cited to Curry Road Ltd. v. K Mart Corp., 893 F.2d 509 (2d Cir.1990), for its enunciation of the standard for determining whether a contract term is ambiguous:138
A term is ambiguous when it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business.139
Travelers Dec., 2002 WL 1163577, at *4 (quoting Curry Road, 893 F.2d at 511) (internal quotation marks omitted). Applying the Curry Road test, the district court found that the meaning of "occurrence" to be incorporated into the Travelers binder was ambiguous given the history of litigation over the term, the fact that the term has been variously defined in different insurance policies, and the varying treatment of the term in different cases. Id. at *5-*6. The district court rejected the Silverstein Parties' argument that there is a single generally accepted meaning of "occurrence" under New York law. Id. The district court also found that the fact that Willis had circulated a policy that defined "occurrence" lent further support for a finding that the term as used in the Travelers binder was ambiguous. Id. at *5.140
Accordingly, the court held that summary judgment had to be denied and that what the parties intended to be the meaning of "occurrence" would have to be determined by reference to extrinsic evidence, including141
the specific definition of the term occurrence circulated by the insurance agent for the [insureds], testimony and documents relating to the negotiations prior to September 11th and the overall structure of the insurance program from the World Trade Center, and testimony and documentary evidence concerning statements made after September 11th by those who had been involved in negotiating the insurance contracts, in which they expressed their views on the question of whether there had been one or two occurrences.142
Id. at *6.143
On October 22, 2002, the district court amended the Opinion and Order to include a certification pursuant to 28 U.S.C. § 1292(b), thereby permitting the Silverstein Parties to seek leave to immediately appeal the denial of the summary judgment motion against Travelers together with the Rule 54(b) grants of summary judgment in favor of Hartford, St. Paul, and Royal.144
As an initial matter, the parties dispute which contract governs the present dispute. The Silverstein Parties argue that the final Travelers policy issued on September 14th governs Travelers' obligations for the events of September 11th. They premise this claim on the fact that the Travelers policy that issued on September 14 specified an effective period of July 19, 2001 to July 18, 2002, and on the legal contention that under New York law, the terms of the insurance policy that is ultimately issued govern coverage during the binder period.146
However, the case that the Silverstein Parties assert establishes this rule, Employers Commercial Union, 45 N.Y.2d 608, 412 N.Y.S.2d 121, 384 N.E.2d 668, is inapposite. There, the court sought to determine whether there was insurance coverage at the time a loss occurred, which was after a binder had been given but before the final policy was issued. In response to plaintiff's argument that "its ... coverage  was not in place" at the time of the loss, the court stated, "[W]e reject any notion that the [insurer's] policy was not in force" at the time of loss. Id. at 669-70. The Silverstein Parties seize on this language as support for the proposition that the later-issued policy was the instrument governing the insurer's obligations. The language is taken out of context, however. As the rest of the opinion makes plain, the court's use of the word "policy" here is a reference to "insurance coverage" generally, and not to the later-issued formal policy. See id.; see also id. at 671 (stating in consecutive sentences, "[the Insurer's] insurance was in effect" and "[the Insurer's] policy was in effect"). The court's conclusion that insurance coverage was in place at the time of the loss rested in part on the fact that the final policy, although issued after the loss had occurred, specified coverage during the period in question. Id. at 669-70. But the relevance of this fact to the court's reasoning was not that the final policy terms therefore governed coverage, but simply that they demonstrated that the insurer had done "nothing to repudiate its coverage" after the loss occurred. Indeed, the court rejected the insurer's claim that the binder had not created an enforceable contract, observing that147
[d]aily, important affairs and rights in our society are made to depend upon [binders]. It is a common and necessary practice in the world of insurance, where speed often is of the essence, for the agent to use this quick and informal device to record the giving of protection pending the execution and delivery of a more conventionally detailed policy of insurance. Courts, recognizing that the cryptic nature of binders is born of necessity and that many policy clauses are either stereotypes or mandated by public regulations, are not loath to infer that conditions and limitations usual to the contemplated coverage were intended to be part of the parties' contract during the binder period.148
Id. at 670.149
We do not read Employers Commercial Union to stand for the proposition that a final policy that is issued after a loss is the relevant contract governing the loss. In fact, as we have explained earlier in this opinion, New York law is quite to the contrary. See, e.g., Springer, 710 N.Y.S.2d 298, 731 N.E.2d at 1108 (noting that binder and final policy are "two distinct agreements"); Rosenblatt, 594 N.Y.S.2d at 459 (holding in case where loss occurred prior to the issuance of final policy, that "the dispositive issue ... concerns the risks covered under the binder agreement ..., and this is unaffected by any changes regarding insurance policies issued subsequent to the loss"); Del Bello, 585 N.Y.S.2d at 918-19 (holding that because binder identified plaintiff as an insured, it was covered for fire damage even though plaintiff was not so listed in policy that issued post-loss). Thus, as we held in connection with the Rule 54(b) appeal, it is the Travelers binder, not the September 14 Travelers policy that applies to determine Travelers' obligations.150
The Silverstein Parties argue that the meaning of "occurrence" as used in the Travelers insurance coverage is not ambiguous and, therefore, that resort to extrinsic evidence to construe it is both unnecessary and improper. Because nothing in the documents that constitute the Travelers binder defined "occurrence," we must decide whether the undefined term "occurrence" when used in a first-party property damage contract is ambiguous.152
Applying New York law, we have held that153
 [t]he cardinal principle for the construction and interpretation of insurance contracts — as with all contracts — is that the intentions of the parties should control. Unless otherwise indicated, words should be given the meanings ordinarily ascribed to them and absurd results should be avoided. As we have stated before, the meaning of particular language found in insurance policies should be examined "in light of the business purposes sought to be achieved by the parties and the plain meaning of the words chosen by them to effect those purposes."154
Newmont Mines Ltd. v. Hanover Ins. Co., 784 F.2d 127, 135 (2d Cir.1986) (internal citations omitted).155
Whether a contract is ambiguous is a question of law for a court to determine as a threshold matter. As noted by the district court, an ambiguity exists where a contract term "could suggest `more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement and who is cognizant of the customs, practices, usages and terminology as generally understood in the particular trade or business.'" Morgan Stanley Group Inc. v. New England Ins. Co., 225 F.3d 270, 275 (2d Cir.2000) (internal quotation marks omitted). Moreover, "a contract may be ambiguous when applied to one set of facts but not another. Therefore, ambiguity is detected claim by claim." Id. at 278.156
Once a court finds that a contract is ambiguous, it may look to extrinsic evidence to determine the parties' intended meaning. See id. at 275-76. If factfinding is necessary to determine the parties' intent, however, the matter must be submitted to the finder of fact. See id. at 279.157
The first argument made by the Silverstein Parties invokes the doctrine that "whether an ambiguity exists must be ascertained from the face of an agreement without regard to extrinsic evidence," Reiss v. Fin. Performance Corp., 97 N.Y.2d 195, 738 N.Y.S.2d 658, 764 N.E.2d 958, 961 (2001) (internal quotation marks); see also Md. Cas. Co. v. W.R. Grace & Co., 23 F.3d 617, 625 (2d Cir.1993) ("Interpretation of unambiguous contract language does not bring extrinsic evidence into play."). This argument fails because it is based on the faulty premise that the September 14 Travelers policy rather than the Travelers binder governs the parties' obligations. While New York law is clear that extrinsic evidence may not be used to contradict clearly unambiguous language contained in an insurance binder, see Am. Sur. Co. v. Patriotic Assurance Co., 242 N.Y. 54, 150 N.E. 599, 601 (1926) (holding that it was error to admit extrinsic evidence to contradict unambiguous description of location in insurance binder), it is just as well settled in New York that extrinsic evidence is admissible to determine the parties' intentions with respect to the incomplete and unintegrated terms of a binder. See, e.g., Underwood v. Greenwich Ins. Co., 161 N.Y. 413, 55 N.E. 936, 938-39 (1900) (holding that because binder was not "in and of itself, ... such a complete and perfect instrument that it embodie[d] all the mutual stipulations of the parties ... [it] was open to explanation by parol proof as to the intention of the parties, and the established custom of the business"); see also Thomas v. Scutt, 127 N.Y. 133, 27 N.E. 961, 962-63 (1891) (noting that exception to general rule that parol evidence is inadmissible to contradict a written contract is where "the written instrument, [though] existing and valid, ... [is] incomplete, either obviously, or at least possibly, and ... parol evidence [is  admitted], not to contradict or vary, but to complete, the entire agreement, of which the writing is only a part"). Indeed, the Silverstein Parties have relied on this exception to the parol evidence rule in the context of their disputes with other insurers. See, e.g., SR Int'l Bus. Ins. Co. v. World Trade Ctr. Props. LLC, 2003 WL 289600, at *1 (S.D.N.Y. Feb 11, 2003) (agreeing with the Silverstein Parties that question of whether defendant-insurer Zurich's binder "provid[ed] coverage on a `per occurrence' basis [could] not be resolved without resort to extrinsic evidence"); Appellants' Rule 54(b) Br. at 2-3 (arguing that due to the fact that "binders are a species of temporary, unintegrated contracts," a court must resort to extrinsic evidence of industry usage and custom to discern the expectations of the parties, particularly where, as here, the binders are "not remotely unambiguous"). In fact, in their brief appealing the district court's grants of summary judgment in the Rule 54(b) appeal, the Silverstein Parties take the clear position that159
the parol evidence rule does not come into play at all when dealing with un integrated contracts, such as appellees' binders. Rather, extrinsic evidence is "admissible to supply the terms that the parties intended to incorporate into their agreement." Saxon Capital v. Wilvin Assocs., 195 A.D.2d 429, 600 N.Y.S.2d 708, 709 (1st Dep't 1993); see also Bourne v. Walt Disney, 68 F.3d 621, 627-28 (2d Cir.1995). And, in such circumstances, "summary judgment does not lie" unless the extrinsic evidence itself is so one-sided as to negate the existence of a triable issue of fact. Lowell v. Twin Disc, 527 F.2d 767, 770 (2d Cir.1975); see also Saxon Capital, 600 N.Y.S.2d at 709.160
Appellants' Rule 54(b) Br. at 77. We agree with this statement of the law, which fully applies to the Travelers binder.161
The Silverstein Parties' next contention, that the undefined term "occurrence" is not ambiguous because it is typical for insurance policies not to define "occurrence" and, further, that the WilProp definition is "atypically broad," is undercut by the policy forms of the two other WTC insurers who provided their own forms for coverage, each of which defined occurrence. IRI issued a binder expressly incorporating its own policy form, which defines "loss arising out of one Occurrence" as "the sum total of all loss or damage insured against arising out of or caused by one event." Allianz, in the only final policy to issue before September 11, 2001, defined occurrence in language similar to the WilProp definition: "any one loss, disaster or casualty, or series of losses, disasters or casualties arising out of one event."163
In addition, in order to demonstrate the ambiguity of the undefined term "occurrence," Travelers has proffered evidence of industry custom and usage concerning the meaning of occurrence that differs from the definition asserted by the Silverstein Parties. For example, a Willis forms specialist testified that she did not believe that the WilProp form definition of an occurrence as, inter alia, losses attributable to "one series of similar causes" deviated from the commonly understood meaning of "occurrence." Similarly, Daniel McCrudden, an underwriter at Travelers, testified that "it's recognized that multiple causes of loss can be involved in a single occurrence, and it's recognized that all loss arising out of an overriding cause or group of causes is considered a single occurrence. It's never been a question."164
Although the Silverstein Parties argue that it was improper for the district court to consider such evidence of custom and usage in deciding whether the policy is  ambiguous, we have specifically instructed courts to consider the "customs, practices, usages and terminology as generally understood in the particular trade or business" in identifying ambiguity within a contract. Int'l Multifoods Corp. v. Commercial Union Ins. Co., 309 F.3d 76, 83 (2d Cir.2002) (quoting Morgan Stanley Group, 225 F.3d at 275). And New York courts have long held that such evidence is admissible for purposes of construing an insurance binder. See, e.g., Underwood, 55 N.E. at 937 (holding that binder "was open to explanation by parol proof as to ... the established custom of the business").165
Finally, the Silverstein Parties assert that the mere fact that the word "occurrence" was not defined in the binder is not enough to render it ambiguous. They contend that in the absence of a definition in the binder, a court seeking to construe the meaning of "occurrence" must first turn to well established New York precedent. If there is a clear and uniform meaning of the term under the law, they argue, then a court must reject a claim of ambiguity and apply that definition. This argument fails because its underlying premise — that there is a uniform meaning of "occurrence" under New York law — is erroneous.167
The Silverstein Parties maintain that under New York law, there is but one meaning of "occurrence," which is the direct, physical cause of a loss and not more remote causes. This definition is so accepted and well settled, they contend, that it must be implied into the Travelers binder as a matter of law. Applying this definition to the facts of this case, it follows that because the destruction of the WTC was the result of two physical impacts from two separate planes, there were two occurrences as a matter of law.168
To support their argument, the Silverstein Parties rely on a string of authorities beginning with Arthur A. Johnson Corp. v. Indem. Ins. Co., 7 N.Y.2d 222, 196 N.Y.S.2d 678, 164 N.E.2d 704 (1959). In Arthur A. Johnson, the court considered whether there was one or two accidents within the meaning of a third-party liability insurance policy where two separate walls constructed by the same insured contractors in two adjacent buildings collapsed 50 minutes apart during the course of an unusually heavy rainfall and caused flooding within the buildings. The insurer argued that there was only one occurrence because all the damage was ultimately caused by the heavy rainfall. In rejecting this argument, the court started from the premise that in determining the number of accidents, it must consider "the `reasonable expectation and purpose of the ordinary business man when making an ordinary business contract.'" Id. at 706 (quoting Bird v. St. Paul Fire & Marine Ins. Co., 224 N.Y. 47, 120 N.E. 86, 87 (1918)). The court then held that "the term [accident] is to be used in its common sense of an event of an unfortunate character that takes place without one's foresight or expectation ... [t]hat is, an unexpected, unfortunate occurrence." Id. at 707 (internal quotation marks and emphasis omitted). Reviewing the facts before it, the court concluded that there had been two separate accidents on the rationale that the walls that collapsed belonged to separate buildings, there was no indication that the flooding in the first building would have caused the flooding in the second building in the absence of a second defective wall, and the two walls collapsed almost an hour apart. Id. at 708.169
Because Arthur A. Johnson and nearly all of the other cases relied on by the  Silverstein Parties to provide the definition of "occurrence" are third-party liability insurance cases, however, they involve different interests, both public and private, than first-party property insurance cases such as the instant case. See generally Great N. Ins. Co. v. Mount Vernon Fire Ins. Co., 92 N.Y.2d 682, 685 N.Y.S.2d 411, 708 N.E.2d 167, 170 (1999) ("[W]holly different interests are protected by first-party coverage and third-party coverage."); see also Port Auth. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002) (finding third-party definitions of contract terms unhelpful in first-party context because of "[t]he fundamental differences between liability policies and first-party contracts"). For example, for third-party liability policies, there is no reason to look any further back in the chain of causation than to the insured's acts of negligence, because it is the insured's negligence that triggers liability. See, e.g., In re Prudential Lines Inc., 158 F.3d 65, 80-81 (2d Cir.1998) (holding, in third-party liability context, that "courts should look to the event for which the insured is held liable," regardless of whether it is the physical impact closest in time) (internal quotation marks and emphasis omitted); Stonewall Ins. Co. v. Asbestos Claims Mgmt. Corp., 73 F.3d 1178, 1213-14 (2d Cir.1995) (same), modified on other grounds, 85 F.3d 49 (2d Cir.1996). Thus, the approach taken by courts reviewing the number of occurrences in the context of third-party liability — such as the court's focus in Arthur A. Johnson on the separate wall collapses rather than the rain — makes sense for such policies because the insured is held liable only for its own negligence and not for the act of nature that may have been the initiating cause. See Arthur A. Johnson, 196 N.Y.S.2d 678, 164 N.E.2d at 708 ("Here the proximate cause cannot be said to be the heavy rainfall but separate negligent acts of preparing and constructing separate walls which, for all we know, may have been built at separate times by separate groups of workmen.").170
In addition, construction of the term "occurrence" in a liability insurance context is influenced by the public policy concern of ensuring adequate compensation for injured third-parties who are not parties to the insurance contract, and, perforce, played no role in negotiating its terms. See Affiliated FM Ins. Co., 311 F.3d at 233. It is no surprise, therefore, that a salient characteristic of the third-party liability cases relied on by the Silverstein Parties is that each one involved multiple liability claims filed against the insured by multiple parties. See, e.g., In re Prudential Lines, 158 F.3d at 68 (liability on multiple asbestos claims); Stonewall Ins., 73 F.3d at 1187 (liability on thousands of asbestos claims); Travelers Cas. & Sur. Co. v. Certain Underwriters at Lloyd's of London, 96 N.Y.2d 583, 734 N.Y.S.2d 531, 760 N.E.2d 319, 322 (2001) (liability claims involving decades of commercial activities at numerous industrial and waste disposal sites); Hartford Accident & Indem. Co. v. Wesolowski, 33 N.Y.2d 169, 350 N.Y.S.2d 895, 305 N.E.2d 907, 908 (N.Y.1973) (car liability insurance where insured struck two different cars); Arthur A. Johnson, 196 N.Y.S.2d 678, 164 N.E.2d at 704 (liability for destruction of retaining walls of two buildings owned by different owners). And the "test" that the Silverstein Parties argues is universally applicable in all insurance contexts was described by the Arthur A. Johnson court as applying "in a given set of circumstances when the damage is to several persons." Arthur A. Johnson, 196 N.Y.S.2d 678, 164 N.E.2d at 706 (emphasis added). In such cases, of course, a finding of a separate occurrence as to each claimant ensures compensation  for the injured third parties. See Affiliated FM Ins. Co., 311 F.3d at 233.171
In a first-party property case, by contrast, the insured's negligence is not at issue; rather, the policy insures against external perils such as fires, floods, and intentional acts that cause damage to the insured's property, and against which a property interest holder can take adequate measures to protect his investment in advance of any loss. See Newmont Mines, 784 F.2d at 136 ("The goal of such a [first-party] policy, simply stated, is to provide financial protection against damage to property."). As a result of these differences, a court's construction of the undefined term "occurrence," or the synonymous term "accident," as intended by the parties for use in the third-party context is not necessarily applicable in the context of first-party property insurance.172
We also find it noteworthy that while the Silverstein Parties assert that Arthur A. Johnson "provides the applicable legal test for determining number of occurrences," they do not try to apply that case's definition to the facts of this case. Instead, they assert that "the governing test under `well-established precedent' under New York law is to look to the immediate, efficient, physical cause of the loss, and not to some indirect or remote cause of causes." The Silverstein Parties' source for this rule appears to be some New York cases that have applied a similar rule to determine causation in the context of whether an exclusionary clause applies to a loss. See, e.g., Album Realty Corp. v. Am. Home Assurance Co., 80 N.Y.2d 1008, 592 N.Y.S.2d 657, 607 N.E.2d 804, 805 (1992) (applying "proximate, efficient and dominant cause" test to hold that covered risk of water damage, which was caused by frozen pipes, rather than excluded risk of freezing, was cause of loss); but see Tonkin v. Cal. Ins. Co., 294 N.Y. 326, 62 N.E.2d 215, 216-17 (1945) (applying proximate cause test to hold that covered risk of fire, rather than excluded risk of collision was cause of loss, where blinding smoke from fire caused driver to collide with another car). But no New York case of which we are aware has set forth such a test for purposes of determining the number of occurrences that comprise a loss.173
The test actually enunciated by Johnson and its progeny in the third-party liability context is considerably more nuanced:174
We have expressed the rule of these cases as follows: "In determining the number of occurrences for deductible purposes, New York inquires whether multiple claims result from `an event of an unfortunate character that takes place without one's foresight or expectation.'... [A]lthough a single `occurrence' may give rise to multiple claims, courts should look to the event for which the insured is held liable, not some point further back in the causal chain."175
In re Prudential Lines, 158 F.3d at 80 (quoting Stonewall Ins., 73 F.3d at 1213). Even if we were to accept the Silverstein Parties' contention that this statement sets forth the uniform and well settled definition of "occurrence" under New York law, its application to the facts before us would not establish as a matter of law whether the events of September 11th were one or two occurrences. For example, what, precisely, is the "event" here for which insurance coverage is being sought? In the context of third-party liability insurance — the type of insurance at issue in Arthur A. Johnson — the "event" is the insured's negligence. According to the Silverstein Parties, under the insurance with Travelers, "the `event' that triggers coverage ... is `direct physical loss or damage' to property." This wording traces the language contained in the Travelers form upon  which the Travelers binder was issued, which provides that176
[t]he Company will pay for direct physical loss or damage to Covered Property at premises ..., caused by or resulting from a Covered Cause of Loss. Covered Cause of Loss means risks of direct physical loss unless the loss is excluded in Section D., Exclusions; limited in Section E., Limitations; or excluded or limited in the Supplemental Coverage Declarations or by endorsements.177
A jury construing this language, however, could reasonably conclude that the "event" that triggers coverage is the Covered Cause of Loss, rather than the damage itself. It also could find that the cause of the destruction of the WTC was either the individual impacts caused by each plane or a single coordinated terrorist attack. The latter cause, Travelers argues in its opposition to summary judgment, was a Covered Cause of Loss expressly specified in the Underwriting Submission and, thus, intended by the parties to be covered by the policy. In fact, a jury could find that the words "direct physical loss or damage" does not refer to the "event" that triggers coverage at all, but rather sets forth the scope of the damage resulting from the "event" that the insurer will pay for, namely, direct physical damage as distinct from remote or incidental damage.178
In any event, we are not called upon here to decide whether there was one occurrence or two in this case, only whether the district court properly concluded that because there is no well settled definition of the term "occurrence" under New York law, the Travelers binder was sufficiently ambiguous to preclude summary judgment and to permit the factfinder to consider extrinsic evidence of the parties' intent.179
We think the case most directly on point is our decision in Newmont Mines, the only first-party property insurance case cited by the Silverstein Parties that addresses the meaning of "occurrence." 784 F.2d at 135-37. In that case, we were "not persuaded ... [by defendants] that the term `occurrence' has obtained any ... specialized or singular meaning in the context of property insurance," and we interpreted both Arthur A. Johnson and Wesolowski as "rejecting any single definition of occurrence." Id. at 136. Our conclusion, at bottom, was that "the meaning of `occurrence' must be interpreted in the context of the specific policy and facts of th[e] case." Id. at 136 n. 9.180
In Newmont Mines, a heavy accumulation of snow caused two separate parts of a roof to collapse several days apart, requiring two independent repairs. Id. at 129-31. We held that there was sufficient evidence to support the jury's verdict that the two partial losses constituted two occurrences under the policies. Id. at 137. We also upheld the instruction given to the jury on the meaning of occurrence:181
it is for you to decide whether or not the losses which are alleged to have occurred or the loss that's alleged to have occurred in this case was the result of a single, continuous event or incident, or whether or not it was the result of two separate incidents. If you find that the collapse of the two sections of the roof was a single, continuous event or incident, then the collapse constituted a single occurrence — and there would be only one loss. If, on the other hand, you find that the collapse of the two sections of the roof constituted separate events or incidents that were not causally related, then of course you would have two separate losses.182
Id. at 134. We held that the instruction was proper on the rationale that given the goals of first-party property insurance, "the parties ... must have intended to provide coverage for property damage  each time it occurred unexpectedly and without design, unless the damage occurring at one point in time was merely part of a single, continuous event that already had caused other damage." Id. at 136.183
Notwithstanding the express statements to the contrary in our decision, see id. at 135-36 & n. 8. (rejecting any one definition of "occurrence" and stating that "the meaning of `occurrence' must be interpreted in the context of the specific policy and facts of th[e] case"), the Silverstein Parties contend that Newmont Mines sets forth "the rule of law" with respect to the meaning of "occurrence" in the context of first-party property insurance, and that this rule favors them. However, even if we were to agree with the Silverstein Parties that the approved jury instruction and our separate definition of "occurrence" are applicable to this case (a question we need not and do not reach), the one thing Newmont Mines makes certain is that the question of how many occurrences the events of September 11th constituted is a question properly left to the fact-finder. To be sure, a jury could find two occurrences in this case, as it did in Newmont Mines, or it could find that the terrorist attack, although manifested in two separate airplane crashes, was a single, continuous, planned event causing a continuum of damage that resulted in the total destruction of the WTC, and, thus, was a single occurrence. Instead of supporting the Silverstein Parties' argument that New York law mandates a finding of two occurrences under the Travelers binder as a matter of law, Newmont Mines confirms our belief that in a first-party property insurance case, the meaning of the undefined term "occurrence" is an open question as to which reasonable finders of fact could reach different conclusions.184
Accordingly, we conclude that given the significant distinction between first-party and third-party insurance policies, the fact-specific nature of the inquiry, and the fact that it is the parties' intent that controls, the district court properly concluded that the meaning of "occurrence" in the Travelers binder is sufficiently ambiguous under New York law to preclude summary judgment and to warrant consideration by the fact finder of extrinsic evidence to determine the parties' intentions. We therefore affirm the denial of summary judgment against Travelers.185
For the foregoing reasons, we affirm the judgments of the district court.187
 On November 5, 2001, Silverstein Properties and its related entities filed a separate action against two of the WTC insurers, ACE Bermuda Insurance Ltd. and XL Insurance Ltd., Docket No. 01-cv-9731(JSM). That action was voluntarily dismissed with prejudice on March 25, 2002. On December 28, 2001, Silverstein Properties and its related entities filed another separate action against Travelers Indemnity Company, Docket No. 01-cv-12738(JSM). That action was dismissed without prejudice on March 25, 2002, based on the parties' stipulation that Travelers would be added as a counterclaim-defendant to the action filed by SR International.188
 Two divisions of appellee Royal Indemnity Company, Royal & SunAlliance's Risk Management & Global Division and Royal Specialty Underwriting, Inc. ("RSUI"), issued separate binders in the WTC insurance program. The only binder at issue in this appeal is the one issued by Royal & SunAlliance's Risk Management & Global Division.189
 The parties have indicated that some insurers did not receive a specimen copy of the WilProp form. We do not address the possible consequences that failure to receive the form may have for those insurers because any such consequences are not relevant to the present appeal.190
 We note, however, that Industrial Risk Insurers ("IRI") issued a binder that expressly bound on the basis of its own policy form, "Standard Fire Policy and Comprehensive All Risk Form C-AR."191
The district court's opinion recited the citizenship only of the entities comprised by Silverstein Properties (Delaware or New York/New York), which are only the first seven named defendants-appellants. The record indicates that the citizenship (state of incorporation/principal place of business) of the plaintiff and the rest of the defendants is as follows:192
Plaintiff SR International Business Ins. Co. (United Kingdom).
Defendants Westfield WTC, L.L.C. (Delaware/New York); Westfield Corporation, Inc. (Delaware/California); Westfield America, Inc. (Missouri/California); The Port Authority of New York and New Jersey (compact between New York and New Jersey/principal place is New York); UBS Warburg Real Estate Inv., Inc. (Delaware/New York); Wells Fargo Bank Minnesota, N.A. (National/Minnesota); GMAC Commercial Mortgage Corp. (California/New York).
The Act provides, in relevant part,194
Sec. 408. Limitation on liability.
(a) In general. —
(1) Liability limited to insurance coverage. — Notwithstanding any other provision of law, liability for all claims, whether for compensatory or punitive damages or for contribution or indemnity, arising from the terrorist-related aircraft crashes of September 11, 2001, against an air carrier, aircraft manufacturer, airport sponsor, or person with a property interest in the World Trade Center, on September 11, 2001, whether fee simple, leasehold or easement, direct or indirect, or their directors, officers, employees, or agents, shall not be in an amount greater than the limits of liability insurance coverage maintained by that air carrier, aircraft manufacturer, airport sponsor, or person.
* * * * * *
(b) Federal cause of action. —
(1) Availability of action. — There shall exist a Federal cause of action for damages arising out of the hijacking and subsequent crashes of American Airlines flights 11 and 77, and United Airlines flights 93 and 175, on September 11, 2001. Notwithstanding section 40120(c) of title 49, United States Code [49 U.S.C.A. § 40120(c)], this cause of action shall be the exclusive remedy for damages arising out of the hijacking and subsequent crashes of such flights.
* * * * * *
(3) Jurisdiction. — The United States District Court for the Southern District of New York shall have original and exclusive jurisdiction over all actions brought for any claim (including any claim for loss of property, personal injury, or death) resulting from or relating to the terrorist-related aircraft crashes of September 11, 2001.
Pub.L. No. 107-42, § 408(b)(3), 115 Stat. 230, 241 (Sept. 22, 2001), as amended by Pub.L. No. 107-71, § 201, 115 Stat. 597, 645 (Nov. 19, 2001).196
Federal Rule of Civil Procedure 54(b) provides:197
Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, crossclaim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
28 U.S.C. § 1292(b) provides:199
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however. That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.
We note that even assuming this passage accurately explains the practice of "following the form," it does not come close to establishing that the "form" that was to be followed here was, of necessity, the Travelers form. Indeed, as the Silverstein Parties concede,201
[t]he initial [underwriting] submission may or may not include a sample policy form. If a form is included and a lead insurer has not already emerged, the sample form is intended merely as a starting point for policy negotiations. The initial form will be modified or replaced by another form before the final policy is completed.
Appellant's Rule 54(b) Br., at 20 (emphasis added). Thus, to the extent the Silverstein Parties' evidence establishes a custom and practice of "following the form," it appears that the form to be followed can as easily be the broker's policy form submitted with an underwriting submission as the form of one of the primary-layer insurers.203
 We note that at least one insurer, Allianz, issued a final policy prior to September 11th. No party, however, argues that any insurer other than Allianz was subject to the terms of that policy, and the Silverstein Parties, it appears, dispute that even Allianz was subject to the policy.204
Interestingly, however, the earlier Willis policy form, in a section permitting the designation of a "lead" insurer, provides the following description of the practice:205
When more than one carrier is participating in a program, it is preferable to designate the insurer with the largest quota-share as the "lead" especially if that carrier is whose underwriting and claims settling decisions will be followed by others participating in the coverage.
Swiss Reinsurance Company, with a 22% quota share, or approximately $780 million, was the insurer with the largest quota share in the WTC program. Lexington Insurance Company, with a 50% share of the primary layer, was the largest participant in that layer. Travelers, by comparison, had an overall share in the program of approximately 5.9% and an 8% share of the primary layer.207
 On September 17, 2001, Tucker e-mailed Springett-King that "[t]he lead as far as the policy form is concerned is Travelers" and that he would send her the excess form and a copy of the primary shortly. Springett-King forwarded this message to the claims adjustor, Mr. Loud, without comment. Loud's computer journal reflects that "Travelers is the lead and will issue a policy this week from what [Springett-King] understands." A report from Loud states: "We have yet to receive a copy of the policy. The form is going to be issued from Travelers Insurance Company and they have yet to agree with the insured on the form. The form is going to be sent to all the insurance companies by the end of next week." Neither St. Paul nor Stewart Smith issued a policy form.
Questions about the Silverstein case
1. Was the St. Paul’s segment of the case correctly decided?
2. Was the Wilprop form part of the contract between Silverstein and St. Paul? What was the contract and when was it formed?
3. Why was Silverstein not correct that the custom and usage, as admitted by St. Paul’s own agents, that subsidiary insurers like St. Paul agree to “follow the form” of the lead insurer, which in this case was Travelers; and therefore the term “occurrence” remained undefined, as Travelers insisted for its own coverage and in its own forms? In this connection, think again about Texaco-Pennzoil, Lafayette Place Associates, TIAA-CREF (p.2 fn 9) of the LPA opinion.
4. What would be the relevance of the Joseph Martin Delicatessen case? This was, after all, a question New York law?
5. What is the relevance of St. Paul’s agent’s admission that she had never read Wilprop prior to binding the coverage?