NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0524n.06

                                          No. 19-1994

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                  FILED
  O.L. MATTHEWS, M.D., P.C.,                            )                   Sep 09, 2020
                                                        )               DEBORAH S. HUNT, Clerk
         Plaintiff-Appellant,                           )
                                                        )
                                                               ON APPEAL FROM THE
  v.                                                    )
                                                               UNITED STATES DISTRICT
                                                        )
                                                               COURT FOR THE EASTERN
  HARLEYSVILLE INSURANCE CO.,                           )
                                                               DISTRICT OF MICHIGAN
                                                        )
         Defendant-Appellee.                            )
                                                        )



BEFORE: GRIFFIN, THAPAR, and READLER, Circuit Judges.

       GRIFFIN, Circuit Judge.

       This insurance coverage dispute concerns damage to a building that resulted from rainwater

ponding on the roof and eventually finding its way inside. The issue on appeal is whether the

damage is covered under the relevant policy or excluded by one or more of its numerous

“exclusions” or “limitations.” OLM, the insured, argues that the district court applied the wrong

standard of causation when it analyzed whether one of the Policy’s coverage exclusions applied.

OLM is correct on this point, but we conclude that two other provisions of the Policy (one

“exclusion” and one “limitation”) apply to bar coverage. We therefore affirm.

                                               I.

       Plaintiff O.L. Matthews, M.D., P.C. (“OLM”) owned a building in Inkster, Michigan and

used it as a medical office. OLM bought the building in the early 1980s, and for many years,
No. 19-1994, O.L. Matthews, M.D., P.C. v. Harleysville Ins. Co.



neither OLM nor its owner, Dr. O.L. Matthews, paid much attention to the condition of the roof.

That changed in January of 2017, when the roof started leaking. OLM filed a claim under the

“Businessowners policy” (“the Policy”) it held with defendant Harleysville Insurance Company,

but Harleysville denied coverage and its agent told OLM that the roof needed maintenance.

       OLM then hired Darrell Wood, a roofer, but because of the ice and snow on the roof—

typical for January in Michigan—he could not perform the full, necessary maintenance. So Wood

performed what maintenance he could under the then-existing weather conditions. A similar

sequence of events occurred in February 2017. OLM hired Wood to return because of another

leak and he performed limited maintenance due to the ice and snow. Wood characterized the

condition of the roof as “messed up.” When he first climbed up to the roof, it was “all water,”

“like a lake.” Some areas were sagging and the drain wasn’t working properly. In short,

“[e]verything was bad on the roof.” Wood described his temporary fix—draining the water and

patching some areas with roof tar—as “put[ting] a Band-Aid on a damaged roof.”

       By July of 2017, the weather had improved and OLM hired a different roofer, who provided

some maintenance to the roof. Then in August, OLM hired King’s Roofing to provide additional

maintenance and prepare the roof for the following winter. Andrew Yonko, the owner of King’s

Roofing, examined the roof and described it as being in “okay condition, but it needed work done.

Definitely needed maintenance.” He observed water ponding on the roof in “low spots” and that

seams in the waterproof membrane were “starting to blister up . . . [and] crack up.” Yonko

explained that the weight of water ponding on a roof tends to “pull[ ] apart” a roof membrane, and

that seams will deteriorate because of normal “wear and tear.” He estimated that the lifespan of a

roof like the building had would typically be between fifteen and twenty years. By the summer of

2017, the roof at issue here was at least thirty-five years old.


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No. 19-1994, O.L. Matthews, M.D., P.C. v. Harleysville Ins. Co.



       King’s Roofing gave OLM an estimate to repair the roof, which OLM approved. But

before King’s could begin its work, water leaked into the building and caused significant damage

to the inside, including the light fixtures, the carpeting, and even the door locks. King’s eventually

repaired the roof, but the damage was done. OLM promptly filed a second claim with Harleysville,

which hired David Walenga, a structural engineer, to investigate and determine the “cause of loss.”

Walenga examined the roof in October 2017 and reached three major conclusions. First,

       Moisture is intruding into the subject building due to the exploitation of breaches
       in the roof from latent defects and a lack of proper and timely maintenance or repair.
       The roof lacks sufficient pitch or drainage to prevent ponding. Ponded moisture is
       capable of intruding into the building via defects such as failed or weak membrane
       seams, and failed penetration flashings.

Second, based on the corrosion of metal in the ceiling and damage to the ceiling tiles, “[m]oisture

ha[d] been intruding into the subject building to some degree for a duration well exceeding the

timeframe between the claimed loss period, and [the] inspection date.” Third, Walenga found “no

indication that the roof ha[d] been displaced or damaged by a singular weather-related event, such

as wind.” Weather records showed no severe or high wind speeds during the loss period, and the

previous repairs to the roof indicated gradual deterioration over a long period rather than a single,

severe event.

       Relying on Walenga’s report, Harleysville concluded that “loss was caused by the

exploitation of breaches in the roof from latent defects and a lack of proper and timely maintenance

or repair” and that the Policy “does not provide coverage for this loss.” Accordingly, Harleysville

denied OLM’s second claim in December 2017. A letter communicating the denial identified

several exclusions in the Policy that, according to Harleysville, applied to preclude coverage.

       Meanwhile, OLM hired its own expert to examine the roof, structural engineer Michael T.

Williams. For the most part, his conclusions were consistent with Walenga’s:


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No. 19-1994, O.L. Matthews, M.D., P.C. v. Harleysville Ins. Co.



   •   The roof deck . . . is failing. The more it sags, the more water is ponded every time
       it gets wet. The more water is ponded in the low spots, the more it sags. With this
       continued cycle of progressive failure of the deck, the entire deck must be replaced.
   •   The roof system has been repaired many times. The repairs have also added to the
       weight of the roof. The additional weight plus the standing water caused by the
       deck sags has overcome the roof deck’s ability to carry such loads.
   •   The weight of the ponded water stretches the roof membrane. This stretching is a
       “tensile” loading. The weakest parts of the roof membrane are its seams or its
       transition areas where it is wrapped over or around something. Those are the areas
       where the roof system has failed[.]

Williams characterized the rainfall that led to the damage to the building in August 2017 as the

“straw that broke the camels’ [sic] back,” as “several areas . . . failed and could no longer support

the weight of the roof and the ponded water.”

       OLM believed the damage to the building was covered under the Policy and filed suit

against Harleysville in Michigan state court, asserting a single count of breach of contract under

Michigan law.1 Following removal and discovery, Harleysville moved for summary judgment,

arguing that several “exclusions” or “limitations” contained in the policy precluded coverage for

the damage to the building. The district court agreed, granted the motion, and entered judgment

in favor of Harleysville. O.L. Matthews, M.D., P.C. v. Harleysville Ins. Co., 

(E.D. Mich. 2019). OLM timely appealed.

                                                 II.

       “We review de novo a district court’s grant of summary judgment.” Keith v. Cty. of

Oakland, 

, 923 (6th Cir. 2013). Summary judgment is proper “if the movant shows

that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A dispute is “genuine” if the evidence permits a reasonable



      The complaint incorrectly identified Harleysville as “Harleysville Lake States Insurance
       1

Company.”


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No. 19-1994, O.L. Matthews, M.D., P.C. v. Harleysville Ins. Co.



jury to return a verdict in favor of the nonmovant, and a fact is “material” if it may affect the

outcome of the suit. Anderson v. Liberty Lobby, Inc., 

, 248 (1986). Viewing the

evidence in a light most favorable to the nonmoving party, our task is to determine “whether the

evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-

sided that one party must prevail as a matter of law.”

       Here, the parties agree as to the relevant facts, and this appeal turns on a legal issue: the

interpretation of an insurance policy. “An insurance policy is much the same as any other contract.

It is an agreement between the parties in which a court will determine what the agreement was and

effectuate the intent of the parties.” Heath v. State Farm Mut. Auto. Ins. Co., 

,

699 (Mich. Ct. App. 2002) (per curiam). In doing so, “we look[ ] to the contract as a whole.”

Auto-Owners Ins. Co. v. Harrington, 

, 841 (Mich. 1997).                             “If

the insurance contract sets forth definitions, the policy language must be interpreted according to

those definitions. If a term is not defined in the policy, it is to be interpreted in accordance with

its commonly used meaning.” 

(citation omitted). If a contract is

unambiguous, it is “not open to judicial construction and must be enforced as written.” Rory v.

Cont’l Ins. Co., 

, 30 (Mich. 2005) (emphasis omitted).

       “Interpretation of an insurance policy ultimately requires a two-step inquiry:        first, a

determination of coverage according to the general insurance agreement and, second, a decision

regarding whether an exclusion applies to negate coverage.” 

.

“Under Michigan law, an insured loses coverage under a policy if one of the policy’s exclusions

applies to the insured’s particular claims.” Seaway Cmty. Bank v. Progressive Cas. Ins. Co., 531

F. App’x 648, 651 (6th Cir. 2013) (citing Auto-Owners Ins. Co. v. Churchman, 

,


                                                 -5-
No. 19-1994, O.L. Matthews, M.D., P.C. v. Harleysville Ins. Co.



434 (Mich. 1992)). “Exclusionary clauses in insurance policies are strictly construed in favor of

the insured,” 

, but “[c]lear and specific provisions that limit

coverage must be given effect because an insurance company cannot be held liable for a risk that

it did not assume.” Jervis Webb Co. v. Everest Nat. Ins. Co., 

, 725 (Mich. Ct. App.

2002).

         Here, the Policy provides that Harleysville “will pay for direct physical loss of or damage

to Covered Property . . . caused by or resulting from any Covered Cause of Loss.” “Covered

Property” includes the building in question here. And the Policy defines “Covered Causes of Loss”

as [r]isks of direct physical loss unless the loss is” either “excluded” in the Policy’s list of

exclusions or “limited” in its separate list of limitations. OLM repeatedly emphasizes that the

Policy is an “all-risk” insurance policy. “An ‘all-risk’ policy creates coverage of a type not

ordinarily present under other types of insurance, and recovery is allowed for fortuitous losses

unless the loss is excluded by a specific policy provision.” 10A Steven Plitt et al., Couch on

Insurance § 148:50 (3d ed. 2019). But an “all-risk” policy does not cover every risk; a court must

carefully examine the policy’s exclusions and limitations to determine whether a particular loss is

covered.

         Thus, this case turns on whether at least one of the Policy’s exclusions or limitations applies

to bar coverage for the water damage to the building. Three are at issue here. We take them one

at a time.

                                                   A.

         The Policy excludes from coverage “loss or damage caused by or resulting from”:

         Faulty, inadequate or defective:

         (1) Planning, zoning, development, surveying, siting;


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No. 19-1994, O.L. Matthews, M.D., P.C. v. Harleysville Ins. Co.




       (2) Design, specifications, workmanship, repair, construction, renovation,
           remodeling, grading, compaction;

       (3) Materials used in repair, construction, renovation or remodeling; or

       (4) Maintenance;

       of part or all of any property on or off the described premises.

Harleysville argues that this “Negligent Work Exclusion” applies because the roof was improperly

designed to have the drain situated higher than the rest of the roof. To function properly, a drain

needs to be at the lowest point to ensure that water flows into it (instead of ponding elsewhere on

the roof). According to Harleysville, the drain’s placement led to the ponding of water on the roof,

which led to the membrane tearing and the damage to the inside of the building.

       Expert testimony supports this contention. Williams, OLM’s expert, testified that “the

drain is set too high,” and explained that between the placements of the roof joists and the drain,

“the roof deck must support the weight of almost five inches of water before it can discharge into

the roof drain.” Williams also stated that the weight of the water on the roof was caused by “the

bad design of the roof,” which included “the bad design of where the drain was.” Walenga,

Harleysville’s expert, stated in his report that “[t]he region surrounding the roof drain is relatively

higher than the field of the roof,” which “prevents drainage.” This is also consistent with the

roofers’ observations. Wood, the first roofer, couldn’t remember how high the drain was, but he

did observe that it “wasn’t doing anything” and the water “wasn’t draining properly.” Yonko

testified that the drain was “a little high” and admitted that “if the drain is one and three-quarter

inches above the roof deck,” it was “probably . . . design[ed]” improperly.

       OLM offers no evidence to dispute its own expert’s statement that the roof’s poor design

led to the damage to the building in August 2017. In fact, OLM states in its brief that “it is


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No. 19-1994, O.L. Matthews, M.D., P.C. v. Harleysville Ins. Co.



undisputed that the excluded peril of negligent work (i.e., defective design) caused or set in motion

the subsequent covered peril of Water infiltration, which in turn caused water damage.” Instead,

OLM argues that a different provision—an ensuing-loss clause—in the Policy “serves as an

exception” to the Negligent Work Exclusion and thus preserves coverage. Such a “provision

provides coverage for specific types of losses that are otherwise covered in the policy when that

loss is the result of the occurrence of an excluded peril.” 11 Steven Plitt et al., supra § 153:70.

“For example, a policy may provide that it does not cover any loss caused by earth movement.

However, any ensuing loss by fire which is not excluded or excepted is covered. This means the

policy covers loss caused by fire that would not have occurred but for the earth movement.”

an ensuing-loss clause may be aptly characterized as an “exception to

[an] exclusion.” And here, OLM identifies this ensuing-loss clause in the section of the Policy

that contains the Negligent Work Exclusion:

       We will not pay for loss or damage caused by or resulting from any of the following
       Paragraphs [including the Negligent Work Exclusion]. But if an excluded cause of
       loss that is listed in [this section] results in a Covered Cause of Loss, we will pay
       for the loss or damage caused by that Covered Cause of Loss.

       OLM argues that the district court erred by ignoring this clause and instead applying

Michigan’s “default rule” of causation—the “anti-concurrent” causation rule—which holds “that

a loss is not covered when it is caused by a combination of a covered risk and an excluded risk.”

Iroquois on the Beach, Inc. v. Gen. Star Indem. Co., 

, 589 (6th Cir. 2008). In Iroquois,

which the district court relied on below, an insurer denied coverage for damage to a building based

on the policy’s exclusion for continuous water leakage that occurs for longer than two weeks.

The insured argued that the exclusion did not apply for two related reasons. First,

“windstorms, a covered loss under the policy, initiated the sequence of events that resulted in the



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No. 19-1994, O.L. Matthews, M.D., P.C. v. Harleysville Ins. Co.



loss.”

of the policy that contained the exclusion did not include an “anti-

concurrent, anti-sequential” clause (whereas a different section of the policy did contain such a

clause).

       The insured argued that the court should instead apply “the doctrine of ‘efficient proximate

cause,’” which “applies when ‘two or more identifiable causes, at least one of which is covered

under the policy and at least one of which is excluded thereunder, contribute to a single loss.’”

(quoting 7 Steven Plitt et al., supra § 101.45). “Under this doctrine, ‘[i]f the cause which

is determined to have set the chain of events in motion, the efficient proximate cause, is covered

under the terms of the policy, the loss will likewise be covered.’”

The

court rejected the insured’s argument and applied the anti-concurrent causation rule because that

was Michigan’s default rule and no language in the policy indicated that the parties had contracted

out of it.

–89.

       OLM made a similar argument to the district court, which rejected it with a straight

application of Iroquois. 

–23. But the court did not meaningfully

engage with OLM’s other argument that the Policy’s ensuing-loss clause abrogated or modified

the default anti-concurrent causation rule.2 On this point, OLM is correct. Both are rules of

causation that, by their terms, cannot coexist side by side. That is, in a situation where a covered

cause and a non-covered cause both contribute to a loss, applying the anti-concurrent causation

rule would preclude coverage every time, while an ensuing-loss clause would preserve coverage



       2
          The district court only mentioned in passing that OLM “further asserts that the exclusions
listed in Section (B)(3) permit coverage for ensuing loss resulting from the weight of rain ponding
on the roof, therefore none of the (B)(3) exclusions are applicable here because the evidence shows
that the weight of the ponding water on the roof caused the loss.” 

.


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No. 19-1994, O.L. Matthews, M.D., P.C. v. Harleysville Ins. Co.



in some circumstances. And Iroquois does not control here, as the policy there did not contain an

ensuing-loss clause or any other contractual provision that would modify the default rule. Because

we must “look to the plain language of the insurance policy in determining the scope of coverage,”

Busch v. Holmes, 

, 67 (Mich. Ct. App. 2003), the ensuing-loss clause that appears

in the Policy controls, rather than the default anti-concurrent causation rule.

        According to OLM, this would play out here as follows. The Negligent Work Exclusion

precludes coverage for the damage to the roof (i.e., the sagging, cracking, and eventual breach of

the membrane) because it was caused by the defective design of the roof drain. The damage to the

roof caused the water leak, which in turn caused the damage to the building’s interior. The

ensuing-loss clause, the argument goes, preserves coverage for the interior damage because an

“excluded cause of loss result[ed] in a Covered Cause of Loss.”

        The problem for OLM is that ensuing-loss clauses do not necessarily preserve coverage

with respect to every exclusion in an insurance policy. We must continue to examine the entire

Policy “as a whole,” 

, including the two other exclusions or

limitations identified by the district court.

                                                 B.

        The Policy excludes from coverage “loss or damage caused by or resulting from”:

        (1) Wear and tear;

        (2) Rust or other corrosion, decay, deterioration, hidden or latent defect or any
            quality in property that causes it to damage or destroy itself;

        (3) Smog;

        (4) Settling, cracking, shrinking or expansion[.]




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No. 19-1994, O.L. Matthews, M.D., P.C. v. Harleysville Ins. Co.



“Wear and tear” is defined as “[d]eterioration caused by ordinary use; the depreciation of property

resulting from its reasonable use.” Wear and Tear, Black’s Law Dictionary 1827 (10th ed. 2014).

“Damage resulting from normal ‘wear and tear’ is often excluded from coverage because it is a[ ]

type of nonfortuitous loss.” 11 Steven Plitt et al., supra § 153:77. Unlike the Negligent Work

Exclusion, this “Wear and Tear Exclusion” does not have an ensuing-loss clause. So the default,

anti-concurrent causation rule applies, and if wear and tear contributed to the loss, the Policy does

not cover it. See 

.

       The following caveat does apply, however: “If an excluded cause of loss [including those

that fall within the Wear and Tear Exclusion] results in a ‘specified cause of loss’ or building glass

breakage, [Harleysville] will pay for the loss or damage caused by that ‘specified cause of loss’ or

building glass breakage.” The Policy defines “specified cause of loss” as “[f]ire; lightning;

explosion; windstorm or hail; smoke; aircraft or vehicles; riot or civil commotion; vandalism;

leakage from fire extinguishing equipment; sinkhole collapse; volcanic action; falling objects;

weight of snow, ice or sleet; water damage.” The only plausible option among these is “water

damage,” which the Policy defines as “accidental discharge or leakage of water or steam as the

direct result of the breaking apart or cracking of any part of a system or appliance (other than a

sump system including its related equipment and parts) containing water or steam.” Using that

definition, the water damage to the building here does not qualify as a “specified cause of loss”

under this exception to the Wear and Tear Exclusion because a roof is plainly not a “system or

appliance.”       See    System,    Merriam-Webster.com        Dictionary,    https://www.merriam-

webster.com/dictionary/system (last visited Aug. 25, 2020); Appliance, Merriam-Webster.com

Dictionary, https://www.merriam-webster.com/dictionary/appliance (last visited Aug. 25, 2020).




                                                -11-
No. 19-1994, O.L. Matthews, M.D., P.C. v. Harleysville Ins. Co.



       OLM does not dispute that wear and tear contributed to the damage to the building in this

case. In fact, it does not even mention this exclusion in its brief, despite the district court’s

extensive discussion of it. See 

–20. “[W]e will treat an argument

as forfeited when it was not raised in the opening brief.” Island Creek Coal Co. v. Wilkerson, 

, 256 (6th Cir. 2018) (internal quotation marks omitted). Beyond that, after Harleysville

filed its brief on appeal arguing that the Wear and Tear Exclusion applied to bar coverage, OLM

did not file a reply brief or otherwise make any effort to respond.

       Even without the forfeiture, though, there is no genuine dispute that this exclusion applies.

The record shows that wear and tear was a cause of the loss here. Yonko testified that the seams

on the roof membrane had deteriorated because of “[w]ear and tear.” He also stated that a roof

like the one on the building should be replaced every fifteen to twenty years. (Id.) We know from

Dr. Matthews’ testimony that the building had the same roof for at least thirty-five years prior to

August 2017. Wood identified “a lot of other issues [with the roof] besides the drain,” including

“lots of little holes,” “soft spots,” “seams that w[ere] open,” and “sagging.” Wood further opined

that the roof needed to be replaced. Walenga’s report stated that the evidence of previous repairs

to the roof was “symptomatic of those performed related to deterioration of the roof and attempts

to address deferred maintenance.” And Williams, OLM’s expert, testified that “the wear and tear

that [the roof] has received is from the weight of the water pulling the membrane apart.”3



       3
         The district court pointed out that “Williams’ testimony is difficult to follow,” as he also
testified that “I wouldn’t use the word wear and tear. I’m saying long-term damage to the
sheeting.” 

n.1. At the end of his deposition, he attempted to
clarify: “Normally in construction trades, the term wear and tear refers to ordinary deterioration
of a building product based upon exposure to weather-related things and normal aging process. In
this instance, the only thing you could characterize as wear and tear, in my opinion, is the tearing
and pulling apart of the membrane that was caused by the weight of the water because of the


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No. 19-1994, O.L. Matthews, M.D., P.C. v. Harleysville Ins. Co.



       To be sure, a broad interpretation of “wear and tear” combined with the application of the

anti-concurrent causation rule could lead to coverage being denied in nearly any situation, even

with an all-risk policy. See Meridian Leasing, Inc. v. Associated Aviation Underwriters, Inc., 

, 352–53 (6th Cir. 2005); see also 

(“Exclusionary clauses

in insurance policies are strictly construed in favor of the insured.”). But that concern certainly

does not arise here, where the roof had outlived its intended life twice over and had been poorly

maintained and monitored during that time. Moreover, the Wear and Tear Exclusion is not the

only provision of the Policy that bars coverage in this case.

                                                 C.

       In the “Limitations” section, the Policy provides that Harleysville “will not pay for loss or

damage to”:

       (5) The interior of any building or structure caused by or resulting from rain, snow,
           sleet, ice, sand or dust, whether driven by wind or not, unless:
           (a) The building or structure first sustains damage by a Covered Cause of Loss
               to its roof or walls through which the rain, snow, sleet, ice, sand or dust
               enters; or
           (b) The loss or damages caused by or results from thawing of snow, sleet or ice
               on the building or structure.

Again, the relevant facts here are undisputed.4 OLM admits that there was “severe and pervasive

water infiltration and resulting water damage to the interior of the Building from water that had

collected on the roof.” OLM also states that “the weight of rain that collect[ed] on [the] roof . . .

cause[d] water infiltration.”




ponding on the roof. So I call that water weight related damage, not quote, unquote, wear and
tear.”
       4
         And again, OLM does not address this policy provision in its brief.


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No. 19-1994, O.L. Matthews, M.D., P.C. v. Harleysville Ins. Co.



         This “Leakage Limitation” provision has its own unique exceptions that preserve coverage

in some circumstances. First, subsection (b) doesn’t apply here because no snow, sleet, or ice was

present on the roof. Second, this limitation is not modified by an ensuing-loss clause, but

subsection (a) is somewhat similar to one. Instead of requiring that an excluded cause of loss lead

to a covered one, however, it requires that a covered cause of loss lead to the rain (etc.) damaging

the interior of the building. This exception does not apply here because both causes of the damage

to the roof “through which the rain . . . enter[ed]”—negligent design of the drain and wear and tear

to the roof itself—are excluded causes of loss under the Policy. The district court was correct to

conclude that the Leakage Limitation “applies and precludes coverage for damage to the interior

of the building because it did not first sustain damage by a Covered Cause of Loss to its roof.”

(brackets and internal quotation marks omitted).

                                                 D.

         “Under Michigan law, an insured loses coverage under a policy if one of the policy’s

exclusions applies to the insured’s particular claims.” Seaway Cmty. Bank, 531 F. App’x at 651

(emphasis added). The Wear and Tear Exclusion and the Leakage Limitation both apply here, and

as a result, the damage to the inside of the building did not result from a “Covered Cause of Loss”

under the Policy. Thus, despite the district court’s error in applying the wrong causation standard

to the Negligent Work Exclusion, we find that its grant of summary judgment on the basis of these

other provisions was proper. See Loftis v. United Parcel Serv., Inc., 

, 514 (6th Cir.

2003) (“[I]n reviewing a lower court decision, we may affirm for any reason presented in the

record . . . .”)

                                                IV.

         For the reasons discussed above, we affirm the district court’s judgment.


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