UNPUBLISHED

UNITED STATES COURT OF APPEALS
               FOR THE FOURTH CIRCUIT


WOMEN IN MILITARY SERVICE FOR         
AMERICA MEMORIAL FOUNDATION,
INCORPORATED,
                         Plaintiff,
               and
MONTGOMERY MUTUAL INSURANCE
COMPANY,
          Third Party Defendant-
                       Appellee,
                v.
HARTFORD FIRE INSURANCE COMPANY,
              Defendant-Appellant,               No. 01-1081

               and
THE CLARK CONSTRUCTION GROUP,
INCORPORATED,
                       Defendant,
               and
KALOS CONSTRUCTION COMPANY,
INCORPORATED; WEISS/MANFREDI
ARCHITECTS; PROFESSIONAL
RESTORATION, INCORPORATED,
            Third Party Defendants.
                                      
           Appeal from the United States District Court
        for the Eastern District of Virginia, at Alexandria.
              Claude M. Hilton, Chief District Judge;
            Albert V. Bryan, Jr., Senior District Judge.
                         (CA-98-916-A)
                     Argued: September 25, 2001
                     Decided: October 30, 2001
2          WOMEN IN MILITARY SERV. v. HARTFORD FIRE INS.
           Before MOTZ and KING, Circuit Judges, and
                HAMILTON, Senior Circuit Judge.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

ARGUED: Donald Lee Speidel, NILES, BARTON & WILMER,
L.L.P., Baltimore, Maryland, for Appellant. Stephen Anthony Hor-
vath, TRICHILO, BANCROFT, MCGAVIN, HORVATH & JUD-
KINS, P.C., Fairfax, Virginia, for Appellee. ON BRIEF: Craig D.
Roswell, NILES, BARTON & WILMER, L.L.P., Baltimore, Mary-
land, for Appellant.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

PER CURIAM:

   In this insurance coverage dispute, Hartford Fire Insurance Com-
pany (Hartford) appeals the district court’s entry of judgment against
it and in favor of Montgomery Mutual Insurance Company (Mont-
gomery Mutual), as assignee of Women in Military Service for Amer-
ica Memorial Foundation, Incorporated (WIMSA). We affirm.

                                  I

   WIMSA was formed for the purpose of establishing a memorial
(the Memorial) at the Arlington National Cemetery to honor women
in military service. Pursuant to a permit issued to WIMSA by the
           WOMEN IN MILITARY SERV. v. HARTFORD FIRE INS.              3
National Park Service, WIMSA was permitted to proceed with con-
struction of the Memorial. The permit required WIMSA to be respon-
sible for management, performance, use, and safety within the area
involved until the work was completed, inspected, and accepted, and
thereafter as long as the Memorial was in place. WIMSA was respon-
sible for all damages to lands or other property of the United States
caused by WIMSA or by WIMSA’s employees, contractors, or
employees of the contractors, and for costs and repairs for any struc-
tures, facilities, sod, soils, or landscape vegetation damaged by the
work.

   On March 6, 1996, WIMSA entered into a contract with Clark
Construction Group, Incorporated (Clark Construction) wherein Clark
Construction agreed to construct the Memorial. Thereafter, Clark
Construction obtained two insurance policies from Hartford, a build-
er’s risk policy (the Builder’s Risk Policy) and a comprehensive gen-
eral liability policy.

   The Builder’s Risk Policy covered losses to "Covered Property,"
which is defined by the Builder’s Risk Policy in relevant part as
"[s]tructures . . ., fixtures, equipment, machinery and similar property
which will become a permanent part" of the Memorial. (J.A. 276).
The Builder’s Risk Policy also contained a covered property exclu-
sion which stated that "Covered Property" did not include property
that would "not become a permanent part of the structure(s) described
in the Declarations or Schedule unless the replacement cost of such
property is included in the contract price and reported to [Hartford]."
(J.A. 277).

   In connection with its work on the Memorial, Clark Construction
hired Kalos Construction Company, Incorporated (Kalos Construc-
tion) as a subcontractor to perform excavation work. Thereafter,
Kalos Construction obtained a commercial general liability policy
from Montgomery Mutual.1
  1
    The commercial general liability policy issued to Kalos Construction
listed Clark Construction and WIMSA as additional insureds. Montgom-
ery Mutual did not issue a builder’s risk policy to Kalos Construction.
4          WOMEN IN MILITARY SERV. v. HARTFORD FIRE INS.
   The Memorial consisted of a semi-circular building around an open
circular plaza with a large fountain. Preexisting pylons completed the
plaza circle. The pylons are approximately sixty feet in height and are
made of stone-clad concrete.

   During construction of the Memorial, Kalos Construction exca-
vated a trench near one of the pylons. The weight of the pylon either
collapsed or compromised the trench and the pylon collapsed, damag-
ing the pylon and an urn affixed to the pylon.

   WIMSA called on Clark Construction and Hartford to cover the
damages, but Hartford denied coverage. As a result, WIMSA sued
Clark Construction and Hartford in the United States District Court
for the Eastern District of Virginia, and Montgomery Mutual was
brought in as a third-party defendant. Numerous claims, counter-
claims, and crossclaims were filed by the various parties.

   On September 28, 1998, pursuant to Federal Rule of Civil Proce-
dure 12(b)(6), Hartford moved to dismiss WIMSA’s claim: (1) for a
declaratory judgment that Hartford had an obligation to provide cov-
erage for the loss associated with the pylon accident; (2) for recovery
under the theory that Hartford breached its obligations to WIMSA
under the Builder’s Risk Policy; and (3) for recovery under the theory
that Hartford exercised bad faith when it failed to provide coverage
for the loss associated with the pylon accident. On October 29, 1998,
the district court granted Hartford’s motion to dismiss these three
claims, reasoning that there was no indication that the damaged pylon
was to become a permanent part of the Memorial or that Clark Con-
struction or WIMSA "ever disclosed to Hartford the replacement cost
of the Pylon to include such cost in the contract." (J.A. 94). The dis-
trict court recognized that there might be ambiguities in the Builder’s
Risk Policy, but declined to address them because it found that the
plain and unambiguous language of the covered property exclusion
made it unnecessary. Accordingly, the district court entered judgment
in favor of Hartford.

   Thereafter, Montgomery Mutual entered into a settlement agree-
ment with WIMSA, Clark Construction, and Kalos Construction.
Under the terms of the settlement agreement, WIMSA, Clark Con-
struction, and Kalos Construction agreed to drop their claims against
           WOMEN IN MILITARY SERV. v. HARTFORD FIRE INS.                5
Montgomery Mutual in exchange for WIMSA’s assignment of its
rights against Hartford to Montgomery Mutual and for Montgomery
Mutual’s agreement to fund the repairs to the Memorial.2 Montgom-
ery Mutual opted to pursue this route because, according to Mont-
gomery Mutual, its duty to defend was broader than its duty to
indemnify and because it was confronted with paying the large legal
expenses of WIMSA, Clark Construction, and Kalos Construction.

   After the execution of the settlement agreement, the parties entered
into a "Stipulation and Consent Order to Dismiss Various Claims
Among and Between the Parties." (J.A. 96). This resulted in the dis-
missal of most of the claims in the litigation, essentially leaving only
the three claims dismissed by the district court in its October 29, 1998
order.

   Stepping into WIMSA’s shoes, Montgomery Mutual appealed the
district court’s grant of Hartford’s motion to dismiss. On appeal, we
vacated the district court’s judgment, reasoning that various factual
issues needed to be resolved by the district court concerning whether
the loss associated with the pylon accident was covered by the Build-
er’s Risk Policy. Women in Military Serv. for Am. Mem’l Found., Inc.
v. Hartford Fire Ins. Co., No. 99-1670, 

, at *3 (4th
Cir. May 23, 2000) (unpublished).

  On remand, Hartford contended that, even if the damaged pylon
met the definition of "Covered Property" under the Builder’s Risk
Policy, Hartford had no duty to pay under the Builder’s Risk Policy
  2
   The record reflects that Montgomery Mutual issued one check to
Clark Construction and two checks to Kalos Construction for the repairs
to the Memorial; these checks totaled $616,755. After Montgomery
Mutual issued the checks to Clark Construction and Kalos Construction
for restoration of the Memorial, the subcontractor responsible for repair-
ing the urn declared bankruptcy. Because the bankrupt subcontractor was
the low bidder on the urn subcontract, Kalos Construction will incur
additional costs to repair the urn, which costs are estimated to be
between $20,000 and $30,000. As part of its obligations under the settle-
ment agreement, Montgomery Mutual intends to cover these additional
costs associated with repairing the urn, once the exact cost of repair is
determined.
6             WOMEN IN MILITARY SERV. v. HARTFORD FIRE INS.
because Montgomery Mutual’s payments to Clark Construction and
Kalos Construction constituted other insurance coverage and further
constituted a loss made good by others. In making this contention,
Hartford relied on the following two provisions of the Builder’s Risk
Policy:

    5. Loss Payment

    We will pay or make good any "loss" covered under this
    Coverage Part within 30 days after:

       a. We reach agreement with you; or

       b. The entry of final judgment.

    We will not be liable for any part of a "loss" that has been
    paid or made good by others.

    6. Other Insurance

    If you have any other insurance covering the same "loss" as
    the insurance under this Coverage Part, we will pay only the
    excess over what you have received from other insurance.

(J.A. 289).

   On remand and following a bench trial, the district court deter-
mined that the damage to the pylon met the Builder’s Risk Policy’s
definition of "Covered Property" and awarded judgment to Montgom-
ery Mutual in the amount of $616,755 (the total amount paid by
Montgomery Mutual to Clark Construction and Kalos Construction),
and further found that Hartford would be liable for the additional
costs associated with the repairs to the urn. In rejecting Hartford’s
argument that Montgomery Mutual’s payments to Clark Construction
and Kalos Construction constituted other insurance coverage and fur-
ther constituted a loss made good by others, the district court rea-
soned:

    The only other question is whether the limitation for other
    insurance and being paid by others in the absence of a loss
    would preclude the plaintiff from recovering.
              WOMEN IN MILITARY SERV. v. HARTFORD FIRE INS.             7
     There was no other insurance here within the meaning of
     this limitation. The settlement was paid in exchange for an
     assignment, and the plaintiff’s position that there was no
     coverage, but that settlement was made, not only for the
     assignment, but for the limitation of exposure to other,
     greater expenses in defending the law suit, it seems to me,
     precludes this being considered other insurance. And the
     claim that it was paid by others, fails, it seems to me, when
     you consider that this was an assignment, and the payment
     by others was in exchange for the assignment. And, but for
     that payment, there would clearly have been a loss by the
     Women in the Military, and that’s whose claim we are
     asserting or considering here today.

(J.A. 272).

  Hartford noted a timely appeal.

                                    II

    On appeal, Hartford makes two principal arguments. The first argu-
ment is that the loss associated with the pylon accident was covered
by other insurance, i.e., Montgomery Mutual’s commercial general
liability policy, and, therefore, the Builder’s Risk Policy’s other insur-
ance exclusion precludes coverage. The second argument is that, even
if the loss associated with the pylon accident was not covered by other
insurance, the loss associated with the pylon accident was made good
by others, i.e., by Montgomery Mutual’s payments to Clark Construc-
tion and Kalos Construction, and, therefore, the loss made good by
others exclusion precludes coverage. Before we address these argu-
ments, we shall briefly address the choice of law issue raised by the
parties.

   In a diversity case, a United States District Court sitting in Virginia
applies Virginia’s choice of law rules. Klaxon Co. v. Stentor Elec.
Mfg. Co., 

, 496 (1941). This principle has been settled
since Klaxon Co., which extended the rule of Erie R.R. v. Tompkins,

(1938), to choice of law questions. Klaxon 

. Under Virginia law, questions concerning the validity, effect,
and interpretation of a contract are resolved according to the principle
8          WOMEN IN MILITARY SERV. v. HARTFORD FIRE INS.
of lex loci contractus, the law of the state where the contract was
made controls. Woodson v. Celina Mut. Ins. Co., 

, 613
(Va. 1970). Under Virginia law, a contract is made when the last act
necessary to complete the contract is performed, and, in the context
of an insurance policy, the last act is the delivery of the policy to the
insured. Metcalfe Bros., Inc. v. Am. Mut. Liab. Ins. Co., 

, 829 (W.D. Va. 1980); see also Buchanan v. Doe, 

, 291 (Va. 1993). In this case, Montgomery Mutual contends the
Builder’s Risk Policy was delivered in Virginia; in contrast, Hartford
argues the Builder’s Risk Policy was delivered in Maryland.

   We need not decide the choice of law issue raised by the parties
because, as explained below, under either Virginia or Maryland law,
the district court correctly ruled in favor of Montgomery Mutual.3
Under Virginia law, insurance policies are contacts whose terms are
construed in accordance with the general principles applicable to all
contracts. Dairyland Ins. Co. v. Douthat, 

, 801 (Va.
1994). When the terms of an insurance policy are clear and unambig-
uous, we are instructed by the Supreme Court of Virginia to give the
terms of the insurance policy their ordinary meaning and to enforce
the policy as written. Osborne v. Nat’l Union Fire Ins. Co., 

, 837 (Va. 1996). Under Maryland law, we are instructed
by the Maryland Court of Appeals to accord the words of an insur-
ance policy their "usual, ordinary and accepted meaning unless there
is evidence that the parties intended to employ [them] in a special or
technical sense." Cheney v. Bell Nat’l Life Ins. Co., 

,
1138 (Md. 1989). In addition, following the rules applicable to the
construction of contracts generally, the intention of the parties is to
be ascertained if reasonably possible from the insurance policy as a
whole. 

that the loss associated with the pylon accident was
covered by Montgomery Mutual’s commercial general liability policy
and, therefore, the Builder’s Risk Policy’s other insurance exclusion
    3
  Because Montgomery Mutual prevailed by applying either Virginia or
Maryland law, the district court did not resolve the choice of law issue.
           WOMEN IN MILITARY SERV. v. HARTFORD FIRE INS.               9
precludes coverage because Montgomery Mutual funded the repairs
to the Memorial. This argument is without merit.

   The record does not support the conclusion that there was "other
insurance covering the same ‘loss.’" (J.A. 289). In fact, the relevant
evidence in the record suggests otherwise. According to Gerard Heim,
a field manager for Montgomery Mutual, the pylon accident was not
covered under Montgomery Mutual’s commercial general liability
policy because the pylon accident was not an occurrence and it was
excluded under the policy. Accordingly, under the clear and unambig-
uous language of the Builder’s Risk Policy, in the absence of "other
insurance covering the same ‘loss,’" 

exclu-
sion does not come into play.4

                                   B

  Hartford also argues that, because Montgomery Mutual made the
payments to Clark Construction and Kalos Construction to repair the
Memorial, its obligation to provide coverage was extinguished
because the "loss" was "made good by others." 

there is an assignment of contract rights, the assignee obtains
its rights from the assignor and, thus, stands in the shoes of the
assignor and acquires the same rights and liabilities as if it had been
an original party to the contract. Pollard & Bagby, Inc. v. Pierce
Arrow, L.L.C., 

, 763 (Va. 1999); Motor Vehicle Sec.
Fund v. All Coverage Underwriters, Inc., 

, 131 (Md. Ct.
Spec. App. 1974). At the time of the assignment, WIMSA had a right
to proceed against Hartford and an obligation to the National Park
Service to repair the pylon and urn. As a result of the assignment,
Montgomery Mutual obtained WIMSA’s right to proceed against
Hartford and the obligations owed to the National Park Service to
repair the pylon and urn. Consequently, Montgomery Mutual was
entitled, as WIMSA’s assignee, to proceed against Hartford, which it
did.
  4
   Interestingly, Hartford never sought to introduce into evidence a copy
of Montgomery Mutual’s commercial general liability policy.
10         WOMEN IN MILITARY SERV. v. HARTFORD FIRE INS.
   Reduced to its essence, Hartford’s argument is that, because con-
sideration was paid by Montgomery Mutual for the assignment, the
loss was made good. This argument misses the mark for the simple
reason that, once Montgomery Mutual stepped into WIMSA’s shoes,
Montgomery Mutual was entitled to exercise WIMSA’s rights to fund
the repairs and to proceed against Hartford. Cf. Med. Mut. Liab. Ins.
Soc’y of Md. v. Evans, 

, 116-18 (Md. 1993) (upholding
physician’s assignment of his bad faith failure to settle claim against
his insurer to plaintiff/patient, where the physician made the assign-
ment in exchange for plaintiff/patient’s agreement not to pursue or
collect the unpaid portion of a $2.5 million judgment against the phy-
sician); Gray v. Grain Dealers Mut. Ins. Co., 

, 1132-34
(D.C. Cir. 1989) (holding that accident victim’s release of insured
from obligation to satisfy judgment in exchange for insured’s assign-
ment of cause of action against insurer for failing to settle did not nul-
lify the assignment so as to preclude accident victim’s recovery
against insurer).

                                   III

   For the reasons stated herein, the judgment of the district court is
affirmed.5

                                                             AFFIRMED
  5
   We have reviewed Hartford’s argument that it is not responsible for
the additional costs associated with repairing the urn and find Hartford’s
argument to be without merit.