Full opinion text
AMENDED OPINION SUHRHEINRICH, Circuit Judge. This is a declaratory judgment action brought to determine whether certain excess insurance policies, which “sit above” and “follow form” to two underlying umbrella insurance policies, incorporate from the underlying umbrella policies an absolute pollution exclusion endorsement added after the policy period had ended and made retroactive to the inception date of the underlying umbrella policies. I. Background A. The Policies Plaintiff GenCorp, Inc. (“GenCorp”) seeks coverage for alleged environmental liabilities under various insurance policies, including certain excess insurance policies (the “Excess Policies”) issued by Defendants (the “Excess Insurers”). The Excess Policies generally required Gen-Corp to maintain underlying insurance coverage. Each Excess Policy also allegedly follows form to, and incorporates the terms, conditions, and exclusions contained in the applicable underlying umbrella policies. During the relevant period, GenCorp’s underlying umbrella coverage insurer was Genco Insurance Limited (“Genco”). Gen-co is a captive insurance company that is wholly-owned by GenCorp. GenCorp purchased the following two insurance policies from Genco: (1) Policy No. 47002, covering January 1, 1975 through January 1, 1978; and (2) Policy No. 47005, covering January 1, 1979 through December 1, 1982 (collectively “Genco Policies”). These policies are umbrella excess third-party liability policies, providing first-level excess coverage to GenCorp. All of the Excess Policies at issue were in effect during all or part of the coverage periods of the Genco Policies. B. The Endorsements In 1989, GenCorp filed a prior insurance coverage action in Ohio state court against various insurance carriers, including Gen-co, and many of the Excess. Insurers, for pollution claims relating to different sites not at issue in this case (“State Action”). On April 7, 1994, GenCorp and Genco executed a settlement agreement (“Settlement Agreement”) relating to the State Action. Pursuant to the Settlement Agreement, Genco agreed to pay GenCorp approximately $20 million in exchange for dismissal of the State Action as it related to Genco for a full and unconditional release from “all Environmental Claims that [Gen-Corp and related entities] or any of them have or may have against Genco.” THIS POLICY SHALL NOT APPLY: The Settlement Agreement further provides: 3.6 Policy Endorsement Amendment Subject only to Genco’s payment and GenCorp’s receipt of the Settlement Amount pursuant to Section 3.2, Gen-Corp agrees that Policy Numbers 47002 and 47005 each shall thereupon be amended, by separate endorsement retroactive in fact and effect to the date each of said policies were issued, each said separate endorsement retroactive in fact and effect to the date each of said policies were issued, and each said separate endorsement to read: (1) bodily injury, personal injury or property damage arising out of the seepage, discharge, dispersal, release or escape or transmission of any solid, liquid, or resulting from: gaseous, thermal, audio or electromagnetic irritant, including, but not limited to, smoke, vapors, soot, waves, fumes, acid, alkalies, fibers, toxic chemicals, liquids or gases, waste materials, or other irritants, contaminants or pollutants into, or upon, land, the environment or any watercourse or body of water; or (2) any liability loss, cost or expense of the insured arising out of any direction or request by any governmental authority, that pollutants be tested for [sic] monitored, cleaned up, removed, contained, treated, detoxified or neutralized; or (3) any payment for the investigation or defense of any loss, injury or damage, or any cost, fine or penalty, or for any expense or claim or suit related to any of the above. Notwithstanding the generality of this exclusion, it shall not exclude coverage for claims by any person alleging personal injury, bodily injury or property damage caused by a product when such damage occurs or is alleged to have occurred after the product has been sold and before the product has become a waste product or part of a waste product. (hereinafter the “Endorsements”). The parties executed the Endorsements on January 18, 1995. Each Endorsement states that it is “effective from inception” of the policy. See Endorsement Eleven to Genco Policy 47002; Endorsement Nineteen to Genco Policy 47005. The Settlement Agreement also called for Genco’s reinsurers to pay $11 million of the $19,910,000 settlement amount. The Excess Insurers did not participate in the settlement. C. The Present Action In the underlying action, GenCorp has been sued for polluting six locations in Ohio, Michigan, New Hampshire, and Connecticut. In November 1995, GenCorp filed this suit against numerous insurance companies, including Defendants-Appel-lees, seeking defense costs and/or indemnification for losses incurred as a result of those actions. Although GenCorp did not name Genco as a party' — presumably because of the Endorsements — one of the Excess Insurers added Genco as a third-party defendant. In response, Genco defended by claiming that the Endorsements precluded it from any liability. So did the Excess Insurers. They moved for summary judgment, claiming that their policies followed form to the Genco Policies and therefore contained the absolute pollution exclusion contained in the Endorsements. On May 20, 1997, the district court granted summary judgment to the Excess Insurers, holding that the Excess Insurers had no duty under the Excess Policies to defend or indemnify GenCorp for pollution claims. The district court found that, as a matter of contract law, the Excess Insurers were entitled to take advantage of the absolute pollution exclusion. See Gen-Corp, Inc. v. AIU Ins. Co., 970 F.Supp. 1253, 1260 (N.D.Ohio 1997). On June 6, 1997, the district court executed a judgment granting partial or total summary judgment to various Excess Insurers, and certified the entry of final judgment under Rule 54(b). Also on June 6, 1997, GenCorp moved the district court to stay entry of final judgment and reconsider its ruling because GenCorp and Genco had entered into negotiations aimed at removing the policy Endorsements created by the 1994 Settlement Agreement. On June 17,1997, Gen-Corp and Genco amended the Settlement Agreement, retroactively voiding the Policy Endorsements. On June 19, 1997, Gen-Corp moved to vacate the judgment under Fed.R.Civ.P. 59(e) based on the June 17 amendment to the Settlement Agreement. On June 20, 1997, the court denied Gen-Corp’s June 6 motion for reconsideration and its June 19 motion to vacate. On July 19, 1997, GenCorp filed its notice of appeal, appealing in whole or in part the Judgment Entry of June of 6, 1997, the Memorandum Opinion of May 20, 1997, the Memorandum Opinion and Order of June 6, 1997, the Memorandum Opinion and Order of June 20,1997. II. Grant of Summary Judgment GenCorp argues that the district court erred in granting summary judgment to the Excess Insurers based on the Gen-Corp/Genco Settlement Agreement because: (1) the Excess Insurers did not provide any consideration for, and Gen-Corp did not consent to, the incorporation of the absolute pollution exclusion into the Excess Policies; (2) the alleged change in coverage took place after Defendants’ policies had expired and after GenCorp had begun to incur covered losses; (3) Defendants’ policies are ambiguous and must be construed in favor of coverage; and (4) equity and public policy preclude such a result. In the alternative, GenCorp claims that the district court erred in denying its motion to vacate summary judgment because the factual basis for summary judgment no longer exists. We review a district court’s grant of summary judgment de novo. See Tiemeyer v. Community Mut. Ins. Co., 8 F.3d 1094, 1097-98 (6th Cir.1993). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Canderm Pharmacal, Ltd. v. Elder Pharm., Inc., 862 F.2d 597, 603 (6th Cir. 1988). The party moving for summary judgment bears the initial responsibility of informing the court that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, ATI U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial. See id. at 324. “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In other words, we must decide “whether the evidence presents 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.” Terry Barr Sales Agency, Inc. v. All-Lock Co., 96 F.3d 174, 178 (6th Cir.1996) (internal quotations omitted). See Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1310 (6th Cir.1989). The parties agree that Ohio substantive law applies. Under Ohio law, insurance contracts are construed under the general law of contracts. See Affiliated FM Ins. Co. v. Owens-Coming Fiberglas Corp., 16 F.3d 684, 686 (6th Cir.1994); Park-Ohio Indus., Inc. v. Home Indem. Co., 975 F.2d 1215, 1218 (6th Cir.1992). A. Lack of Consent and Consideration GenCorp claims that the district court erred in allowing the Excess Insurers to appropriate the benefit of changes to the terms and conditions of the Genco Policies — effectively $438 million in potential insurance coverage — without obtaining GenCorp’s consent and without providing GenCorp with any consideration. Gen-Corp disagrees with the district court’s finding that GenCorp received “significant consideration” in exchange for the loss of coverage under its Excess Policies. The lower court held: GenCorp clearly received significant consideration — in the form of nearly $20 million — in exchange for adding the endorsement to policies 47002 and 47005. And it is hornbook law that “if the consideration given is sufficient to support a contract that it does not matter from or to whom it moves.” Coldwell Banker Residential Real Estate Services Inc. v. Bishop, 26 Ohio App.3d 149, 151, 498 N.E.2d 1382 (1985) (citing Restatement of Contracts 2d, section 71(4) (1981)). GenCorp, Inc. v. AIU Ins. Co., 970 F.Supp. 1253, 1260-61 (N.D.Ohio 1997). GenCorp maintains that this analysis is flawed because “it fails to distinguish between two distinct [sets of] contracts: (1) the contract between GenCorp and Genco and (2) the contracts between GenCorp and its Excess Insurers — each of which requires independent consideration to support a change in its terms.” Therefore, according to GenCorp, “while GenCorp clearly received consideration from Genco in exchange for reducing its coverage under the Genco Policies, GenCorp did not receive any consideration from the Excess Insurers in exchange for a corresponding reduction in coverage under the Excess Policies.” GenCorp further claims that the district court erred by crediting the Excess Insurers with some or all of the consideration provided to GenCorp by Genco because the money paid by Genco was not “bargained for” consideration as between Gen-Corp and the Excess Insurers. GenCorp points out that the Settlement Agreement itself states that “[n]either GenCorp nor Genco intend to confer to any other person any right or benefit under this Agreement.” (Settlement Agreement, ¶ 3.12). GenCorp notes that, although consideration may flow to or from parties other than the promisor and promisee, the consideration cannot be separated from intent, as the consideration and the promise must “bear a reciprocal relation of motive or inducement.” (Appellant’s Br. at 11 (quoting Restatement (Second) of Contracts § 71 cmt. b)). GenCorp’s arguments have merit only if we accept its premise that the incorporation of the absolute pollution exclusions into the Excess Policies constitutes a modification of each Excess Policy requiring new and separate consideration. We do not accept that premise. When GenCorp entered into the contracts with each Excess Insurer in the 1970s, it agreed that the Excess Policies would incorporate the terms of the underlying Gen-co Policies and that any of those policies could — at least under appropriate circumstances — be modified by endorsement. In exchange for its consent to the terms of each Excess Policy, GenCorp received consideration in the form of insurance coverage. Thus, when GenCorp agreed to add a retroactive pollution exclusion to the Genco Policies, GenCorp had already consented to incorporate that exclusion into the following form Excess Policies and had al ready received consideration for its inclusion. As the district court found: [M]any of the defendants apparently anticipated that the underlying contract might be amended and included provisions in their own contracts with Gen-corp stating that coverage would be subject to the underlying policy’s terms and conditions, including changes by endorsement. There is clearly no need for those defendants, who bargained to be bound by future changes, to provide new consideration to take advantage of endorsements favorable to them. GenCorp, 970 F.Supp. at 1261 (footnotes omitted) (emphasis added). Thus, contrary to GenCorp’s assertions, the district court did not confuse the two contracts; it focused properly on the Excess Policies between GenCorp and the Excess Insurers. For this reason it is immaterial that the Excess Insurers did not participate in the $20 million settlement of the State Action and that the parties to the Settlement Agreement did not intend to confer any benefit on any third parties because the Excess Insurers and GenCorp did intend for the Excess Policies to follow the form of the underlying Genco policies, including future changes. In other words, “[b]e-cause [the Excess Insurers] bargained to accept the same terms as Genco received, as a matter of contract law they are entitled to take advantage of the absolute pollution exclusion.” Id. at 1260. There is no dispute that GenCorp consented to, and received adequate consideration for, the placement of the Endorsements in the Genco Policies. Thus, for purposes of our analysis, they are a valid part of the Excess Policies. GenCorp’s reliance on Rothell v. Continental Cas. Co., 198 Ga.App. 545, 402 S.E.2d 288 (Ga.Ct.App.1991), is unfounded. In Rothell, the policy at issue tracked the language of an existing statute. After the policy was issued, the statute was amended. The insurer argued that the change in the statute excluded coverage under the policy. The trial court granted summary judgment to the insurer, finding that the amended statutory provision had been incorporated into the policy and excluded coverage. The court of appeals reversed, stating that “[c]onsideration is necessary for the valid modification of the coverage provisions of an insurance policy when such modification substantially alters coverage.” Id. at 284. The court further reasoned: The parties entered into a contract which included express terms of coverage and noncoverage. The contract could not be unilaterally altered to the detriment of the insured by depriving the insured of coverage previously had and paid for, without some corresponding benefit. There was no evidence that the insured received any premium reduction or any consideration for a broadening of the exclusion and lessening of coverage. Id. GenCorp claims that, like Rothell, the Excess Insurers provided no consideration in exchange for a policy modification that eliminates GenCorp’s coverage. Rothell is not analogous. Although the policy in Rot-hell tracked the language of the statute, it did not state that it was intended to track the statute or that it would follow any amendments to the statute. Thus, by the plain language of the contract, any change to the statute did not automatically become an endorsement to the policy. By contrast, here, GenCorp expressly agreed that the Excess Policies would follow form to any changes in the underlying umbrella insurance policies. Consequently, the express terms of coverage in the Excess Policies require the endorsements to be read into the Excess Policies. It is axiomatic that any modification of a contract must be supported by both mutual consent, see Hanly v. Riverside Methodist Hosp., 78 Ohio App.3d 73, 603 N.E.2d 1126, 1130 (Ohio App.1991); McDermott v. Continental Ins. Co., 69 Ohio App.3d 489, 591 N.E.2d 251, 254 (Ohio App.1990), and consideration. See Richland, Builders, Inc. v. Thome, 88 Ohio App. 520, 100 N.E.2d 433, 437 (Ohio App. 1950) (per curiam). These principles do not come into play, however, because the relevant contracts — the individual contracts between each Excess Insurer and GenCorp — were not modified. B. Post-Loss and Post-Period Modifications Next, GenCorp argues that insurance policies cannot be modified by endorsement subsequent to a loss. Given our conclusion that the incorporation of the absolute pollution exclusion provision into the Excess Policies was not a “modification” of the contracts between GenCorp and the Excess Insurers, this argument necessarily fails. In any event, the eases cited by the parties are largely distinguishable because they do not deal with multilayer policies. Rather, they address the effect of post-loss and postperiod modifications or reformations on parties to a single bilateral contract and, are therefore, analogous to the relationship between Gen-Corp and Genco, not the relationship between GenCorp and the Excess Insurers. Furthermore, there is no per se rule against post-loss modifications. Compare Lee R. Russ & Thomas F. Segalla, 2 Couch on Insurance § 25:8 (3d ed.1997) (stating that “[t]he acceptance of an alteration or modification of the original contract, to be effective, must precede loss”); with Lee R. Russ & Thomas F. Segalla, 7 Couch on Insurance § 102:7 (3d ed.1997) (noting that “fw]hile the rule that loss must occur during the policy period for the insured to recover obviously excludes losses that occur before the policy is issued, the result is different when the parties validly agree to antedate the coverage and neither is aware that a loss has occurred between the date to which the policy is backdated and the date that the insurance was actually obtained”); Sara L. Johnson, et al., 43 AmJur.2d Ins. § 231 (1982 & Supp.1997) (remarking that “[i]t is generally held that where at the time of an application for insurance there has been a loss but neither the applicant nor the insurer knew of this fact, a recovery may be had on a policy subsequently issued which was antedated so as to include the time at which the loss occurred”); United States v. Patryas, 303 U.S. 341, 345, 58 S.Ct. 551, 82 L.Ed. 883 (1938) (stating that “[n]o legal obstacle prevents parties, if they so desire, from entering into contracts of insurance to protect against loss that may possibly have already occurred”); Inland Waters Pollution Control, Inc. v. National Union Fire Ins. Co., 997 F.2d 172, 176 (6th Cir. 1993) (discussing precedent for proposition that “even losses that have already occurred may be insured against, provided their occurrence is unknown to the parties at the time of insurance”); Canadian In-dem. Co. v. Tacke, 257 F.2d 342, 344 (9th Cir.1958) (observing that “a predated agreement creates a liability for an injury existing at the time it is entered into is a matter of settled insurance law”); Aetna Cas. & Sur. Co. v. Condict, 417 F.Supp. 63, 71-72 (S.D.Miss.1976) (same); State Mut. Life Assurance Co. v. Heine, 49 F.Supp. 786, 788 (W.D.Ky.1943); Affiliated FM Ins. Co. v. Kushner Cos., 265 N.J.Super. 454, 627 A.2d 710, 716 (N.J.1993); Burch v. Commonwealth County Mut. Ins. Co., 450 S.W.2d 838, 841 (Tex.1970); Western Fire Ins. Co. v. Moss, 11 Ill.App.3d 802, 298 N.E.2d 304, 311-12 (1973); Hunt v. Aetna Cas. & Sur. Co., 153 Colo. 584, 387 P.2d 405, 406 (1963) (en banc). One case cited by GenCorp dealing with the effect on an excess carrier of a post-loss modification to an underlying policy is somewhat analogous to this case. In Crown Ctr. Redev. Corp. v. Occidental Fire & Cas. Co., 716 S.W.2d 348 (Mo.Ct. App.1986), Crown Center Redevelopment Corporation, Hallmark Cards, and the Hyatt Corporation filed a declaratory judgment action against their insurance carriers seeking coverage for losses arising out of the collapse of two skywalks at a Hyatt Regency Hotel. See id. at 350-52. Hyatt had purchased a comprehensive general liability policy from Occidental. See id. at 351. Columbia Casualty Company, a third-level excess carrier, followed form to the terms and conditions of the Occidental policy. See id. at 359. At issue was whether Crown Center and Hallmark had been added as additional insureds under the Occidental policy prior to the loss occurrence — the skywalk collapse on July 17,1981. See id. Crown Center and Hallmark had been added as named insureds pursuant to a policy endorsement issued after the collapse, but made effective retroactive to the policy’s inception, which predated the collapse. See id. Columbia argued that if the endorsement were upheld it would create “an unlimited right in a primary carrier to add any entity as an insured after a loss occurred and in that manner bind the excess carrier” — the same argument GenCorp makes here. See id. The trial court granted summary judgment for Crown Center. Columbia appealed. The court of appeals held that Columbia was, in fact, bound by the modification of the underlying policy “because all of the evidence demonstrates that Hallmark and Crown Center were actually accepted by Occidental as additional insureds prior to the loss.” Id. GenCorp claims that, by basing its holding solely on the fact that the modification of the underlying policy occurred prior to the insured’s loss, the Crown Center court accepted Columbia’s argument that an excess carrier cannot be bound by the post-loss modification of an underlying policy. GenCorp adds that, in this case, it is undisputed that GenCorp’s losses, in fact, preceded the modification of the underlying Genco policies. That is, GenCorp’s losses commenced no later than December, 1982, while the Genco Endorsements were not executed until March 1, 1995 — -more than 12 years later. We do not read Crown Center so broadly. By expressly basing its holding on the fact that the undisputed evidence demonstrated that Hallmark and Crown Center were actually covered by the underlying policy prior to the loss, the Crown Center court avoided the legal question posed. See id. at 360. GenCorp also argues that a ruling in the Excess Insurers’ favor is shortsighted because it allows policyholders and their underlying carriers to substantially modify an insured’s excess coverage years after those underlying policies expire, without the knowledge or consent of the excess carrier. More fundamentally, GenCorp claims that it undermines the very nature of insurance, which is to protect against risks, not to compensate for known losses. Ironically, GenCorp engaged in the same legal conduct it now challenges on appeal when it agreed in 1994 to include retroactive endorsements to the 1975-1978 and 1979-1982 Genco Policies as part of the State Action Settlement Agreement. Yet GenCorp does not argue that the Settlement Agreement itself is invalid. In any event, GenCorp’s concerns are largely unfounded. Parties can protect themselves from unwanted modifications— through contract. Notice and right to cancel provisions, as well as provisions preventing post-loss endorsements, for example, can protect excess insurers from assuming unwanted risks arising from endorsements. In fact, many of the policies at issue contain such provisions. As for undermining “the very nature of insurance,” it bears repeating that the relevant risk here is the risk the Excess Insurers and GenCorp agreed to when they consented to the “follow form” provisions. It is not disputed that there were no known losses at that time. Although, as noted, fortuitous loss is implicit in the concept of insurance, see Lee R. Russ, 7 Couch on Insurance § 102:7 (3d ed.1997); risk can exist with respect to past events, such that retroactive coverage, and noncoverage, is a permissible subject of an insurance contract. C. Notice GenCorp argues that several of the Excess Policies specifically require that the Excess Insurers receive notice of any modifications to the underlying Genco Policies. GenCorp alleges that “[s]ueh provisions can be reasonably construed to mean that these insurers do not follow form to changes for which they have not received notice,” or at a minimum, create an ambiguity, since there is no evidence in the record indicating that GenCorp provided notice of the Endorsements to the Excess Insurers. GenCorp adds that the notice requirements illustrate the Excess Insurers’ own belief that the scope of their coverage cannot be changed without their consent or the opportunity to adjust their premiums in consideration of such changes. GenCorp faked to make this argument below, and it has forfeited it on appeal. See Elkins v. Richardson-Merrell, Inc., 8 F.3d 1068, 1072 (6th Cir.1993) (holding that appellate court will not normally address issue raised for the first time on appeal). In any event, it is also axiomatic that a party cannot benefit from its own breach. See, e.g., Market Street Assoc. Ltd. Partnership v. Frey, 941 F.2d 588, 592 (7th Cir.1991) (holding that “a contracting party cannot be allowed to use his own breach to gain an advantage by impairing the rights that the contract confers on the other party”) (applying Wisconsin law); Morgan v. Crowley, 91 Ga. App. 58, 85 S.E.2d 40, 49 (1954) (“A party cannot take advantage of his own default in the performance of a contract. The provision of the contract sought to be invoked by the defendant, insofar as it related to a breach by him, was for the benefit of the plaintiff, and he cannot be heard to plead his own breach as a defense....”); Cussler v. Firemen’s Ins. Co., 194 Minn. 325, 260 N.W. 353, 356 (1935) (holding that law will not permit insured to profit from his own breach of contract when insured disregarded his contractual obligation to cooperate with insurer). As the Excess Insurers point out, any notice provision obviously existed for the benefit of the insurer, and it would be up to GenCorp to notify the appropriate Excess Insurer that it had altered the underlying policy. Gen-Corp’s failure to provide notice of the Endorsements cannot therefore be a basis for excluding them from the Excess Policies. D. Ambiguities GenCorp argues that the district court erred in granting summary judgment because both the Genco Endorsements and the Excess Policies themselves contain ambiguities, the policies must be strictly construed against the insurer. The interpretation of an insurance contract is a legal question. See Leber v. Smith, 70 Ohio St.3d 548, 639 N.E.2d 1159, 1163 (1994). If the contract terms are clear and unambiguous, the court presumes that the parties’ intent resides in the words of the agreement. See Kelly v. Medical Life Ins. Co., 31 Ohio St.3d 130, 509 N.E.2d 411, 413 (1987); Park-Ohio Indus., 975 F.2d at 1218 (citations omitted). That is, if the meaning of the contract is apparent, the terms of the agreement are to be applied, not interpreted. See Timber Ridge Inv., Ltd. v. Marcus, 107 Ohio App.3d 174, 667 N.E.2d 1283, 1285 (Ohio App.1995). Extrinsic evidence is admissible, however, if the contract is unclear or ambiguous. See Graham v. Drydock Coal Co., 76 Ohio St.3d 311, 667 N.E.2d 949, 952 (1996); Shifrin v. Forest City Ent, Inc., 64 Ohio St.3d 635, 597 N.E.2d 499, 501 (1992). “An ambiguity exists only where a term cannot be determined from the four corners of the agreement or where contract language is susceptible to two or more reasonable interpretations.” Affiliated. FM, 16 F.3d at 686 (internal quotation omitted). Ambiguities may be patent or latent. A latent ambiguity arises when language is clear on its face, but some intrinsic fact or extraneous evidence gives rise to two or more possible meanings. See Conkle v. Conkle, 31 Ohio App.2d 44, 285 N.E.2d 883, 887-88 1972). Whether a contract is ambiguous is also a question for the court. See Potti v. Duramed Pharmaceuticals, Inc., 938 F.2d 641, 647 (6th Cir.1991) (applying Ohio law). If the court determines that a contract term is ambiguous, a question of fact for the jury arises. See id. In construing a contract, the court must give effect to every phrase or clause, taking into account the subject matter, nature and purpose of the agreement. See Affiliated FM, 16 F.3d at 686. Provisions are to be strictly construed against the insurer only when they are ambiguous. See University of Cincinnati v. Arkwright Mut. Ins. Co., 51 F.3d 1277, 1280 (6th Cir.1995). Moreover, “[t]he fundamental goal in insurance policy interpretation is to ascertain the intent of the parties from a reading of the contract in its entirety, and to settle upon a reasonable interpretation of any disputed terms in a manner calculated to give the agreement its intended effect.” Burris v. Grange Mut. Cos., 46 Ohio St.3d 84, 545 N.E.2d 83, 89 (1989), overruled on other grounds, 67 Ohio St.3d 500, 620 N.E.2d 809 (1993); see also Bivens Gardens Office Building, Inc. v. Barnett Banks, 140 F.3d 898, 911 (11th Cir.1998) (noting that the foremost goal of contract construction is to give effect to the parties’ intent, and that the rule of construction that ambiguities are to be construed against the drafter is “something of a fallback canon”). We review the district court’s legal conclusions de novo. See Potty 938 F.2d at 647. Before turning to the individual policies, we need to address the resounding refrain of GenCorp’s ambiguities arguments; namely, that the Excess Policies are ambiguous because there are missing terms, and that because ambiguities exist, summary judgment is ipso facto improper. This argument is flawed because it ignores the interface between substantive contract law principles and the procedural standards of Fed.R.Civ.P. 56. We And the following interpretative framework helpful: This disagreement is couched in terms that are reminiscent of a familiar set of legal rules — rules which provide, in general, that a contract can be interpreted by the court on summary judgment if (a) the contract’s terms are clear, or (b) the evidence supports only one construction of the controverted provision, notwithstanding some ambiguity. The initial step in this pavane — the question of whether a contract is ambiguous — presents a question of law for the judge. If the court finds no ambiguity, it should proceed to interpret the contact — and it may do so at the summary judgment stage. If, however, the court discerns an ambiguity, the next step— involving an examination of extrinsic evidence — becomes essential. The taking of this second step does not automatically preclude brevis disposition. Summary judgment may be appropriate even if ambiguity lurks as long as the extrinsic evidence presented to the court supports only one of the conflicting interpretations. On the other hand, if the extrinsic evidence relevant to the interpretation of an ambiguous contractual provision is contested or contradictory, summary judgment will often be inappropriate. Torres Vargas v. Santiago Cummings, 149 F.3d 29, 33 (1st Cir.1998) (internal citations and quotations omitted) (analyzing an ERISA contract); see Boston Five Cents Savings Bank v. HUD, 768 F.2d 5, 8 (1st Cir.1985) (observing that even if there is ambiguity in the language of a contract, the evidence presented about the parties’ intent may be so one-sided that no reasonable person could decide the contrary) (citing 3 Corbin on Contracts § 554 (1960)); see also Terry Barr Sales Agency, Inc. v. All-Lock Co., 96 F.3d 174, 179 (6th Cir. 1996) (observing that summary judgment is proper in contract actions when documents or evidence underlying the contract are undisputed and there is no question as to intent) (applying Michigan law); Parrett v. American Ship Building Co., 990 F.2d 854, 858 (6th Cir.1993) (same)(ERISA action). In other words, in the summary judgment context, the mere incantation of “ambiguity” by the nonmovant does not satisfy its burden under Rule 56. The nonmoving party must present evidence to support a reasonable interpretation that differs from the moving party. To be sure, this squares with the concept of legal ambiguity, which presupposes two or more reasonable interpretations. With these principles in mind, we turn to the specific arguments. 1. Endorsements GenCorp claims that the Endorsements apply only to the Genco Policies because they expressly state that the post-loss policy modification applies to “this Policy.” Alternatively, GenCorp claims that “[e]ven if this language standing alone did not create an ambiguity as to whether the Endorsements were to be included as language to which the Excess Insurers follow form, the circumstances of excess carriers attempting to follow a post-loss endorsement which specifies that it only modifies ‘this Policy’ creates a latent ambiguity.” GenCorp forgets that when it acquired the Excess Policies, it agreed that they would follow form to the Genco Policies. This means that, with certain exceptions, the provisions of the Genco Policies would be read into the Excess Policies. When GenCorp further agreed to include the absolute pollution exclusion in the Genco Policies, it necessarily agreed to include that exclusion in the Excess Policies. The “this Policy” language in the post-loss endorsement therefore creates no latent ambiguity. The same reasoning applies to Gen-Corp’s argument that a latent ambiguity exists because the Endorsements further specify that the coverage to be affected by the Endorsements is “umbrella excess third party liability” coverage, which means the Genco Policies. In sum, we find no ambiguity, latent or otherwise,-in either instance. Next, GenCorp argues that the district court implicitly acknowledged the ambiguities in the Endorsements by looking to the extrinsic Settlement Agreement and incorporating its “in fact and effect” language into the Endorsements by reference. Even if the lower court erred in examining the Settlement Agreement, the result does not change, because the Endorsements themselves state that the absolute pollution exclusions were “effective from inception, January 1st, 1975[9].” In any event, the district court specifically held that the absolute pollution exclusion, which by its own terms was “effective from inception,” applies to the contractual relationships between GenCorp and the Excess Insurers. See GenCorp, 970 F.Supp. at 1263. Similarly, GenCorp argues that extrinsic evidence supports its interpretation. GenCorp points to ¶ 3.12 of the Settlement Agreement, which provides that neither party to that agreement “intend[ed] to confer to any other person any right or benefit under this Agreement,” and the testimony of GenCorp’s Director of Risk Management. However, because as a general proposition we find the incorporation of the Endorsements .into the Excess Policies via the follow form provisions unambiguous, extrinsic evidence is inadmissible. Furthermore, the relevant intent for purposes of our analysis is the intent of the Excess Insurers and GenCorp at the time they entered into the Excess Policies, not the intent of GenCorp and Genco at the time of the Settlement Agreement. 2. Excess Policies GenCorp challenges the district court’s rulings regarding many of the Excess Policies. For clarity’s sake, we examine each policy at issue on appeal in the same order as the district court. a. London Policy Nos. UJL0108, UJL0109 Defendants Certain Underwriters at LLoyd’s, London, and Certain London Market Insurers (the “London Market Defendants”) moved for summary judgment on Policies UJL0108 and UJL0109. Both policies cover calendar year 1977. Policy UJL0108 is part of the first layer of policies in excess of Genco policy 47002. Policy UJL0109 is part of the next higher layer of policies. Both policies provide: This Policy is subject to the same terms, definitions, exclusions and conditions (except as regards the premium, the amount and limits of liability and except as otherwise provided herein) as are contained in or as may be added to the said Underlying Umbrella Policy/ies prior to the happening of an occurrence for which claim is made hereunder and should any alteration be made in the premium for the Underlying Umbrella Policy/ies then the premium hereon shall be adjusted accordingly. Policy UJL0108 refers to the “Underlying Umbrella Policy/ies” as “GENCO INSURANCE LIMITED.” Policy UJL0109 refers to the “Underlying Umbrella Policy/ies” as “GENCO INSURANCE LIMITED & certain Underwriters at LLoyd’s, London and various Insurance Companies.” The district court held that both policies referred to Genco as the underlying umbrella insurer and that the above language effectively incorporated the absolute pollution exclusion. On appeal, GenCorp complains that Policy UJL0109 is ambiguous because it points to more than one underlying policy, namely UJL0108 and the Genco Policy. GenCorp’s argument ignores the fact that London Policy UJL0109 is part of the coverage in the $30 million layer of insurance which sits in excess of the $15 million layer containing London Policy UJL0108, which in turn sits above the $5 million Genco umbrella layer. Thus, it is not ambiguous for London Policy UJL0109 to follow form to both London Policy UJL0108 and the applicable Genco policy. GenCorp also argues that the London Market Policies do not incorporate the post-occurrence Endorsement. The policies state that they are subject to “the same ... exclusions ... as are contained in or as may be added to the said Underlying Umbrella Policy/ies prior to the happening of an occurrence for which claim is made hereunder ...(emphasis added.) The Excess Insurer responds that because the exclusionary endorsements were made retroactive to inception, the exclusions were “contained in” the Genco Policies as of inception and are therefore not post-loss endorsements. We agree with the Excess Insurers. As the London Market Defendants point out, “or” is generally considered a “disjunctive” term which provides alternatives. See Jaffe v. Patterson Realty Co., 142 N.E.2d 284, 294 (Montgomery County Ct. of Common Pleas of Ohio, 1953) (“The word ‘or’ is said to be a disjunctive particle that marks an alternative .... ”); see also American Family Mut. Ins. Co. v. Livengood, 970 P.2d 1054, 1057 (Mont.1998) (“In its common usage, ‘or’ connotes the disjunctive, and it is used to express an alternative or give a choice of one among two or more things.... When a provision is written in the disjunctive, it is clear that only one of the separately stated factors must exist.”) Because “or” is clearly used as a disjunctive in the relevant provisions, “the added to” language does not matter if the “contained in” alternative is satisfied. Because the absolute pollution exclusion was made “effective from inception,” it was “contained in” the Genco policies prior to the occurrence. The district court did not err in granting summary judgment to London on the foregoing policies. b. Federal Insurance Company Policy No. 79220025 Federal Insurance Company (“Federal”) moved for summary judgment on Policy No. 79220025, which covers January 1, 1975 to January 1, 1976. It states in relevant part: In consideration of the payment of the required premium and subject to all the terms of this policy, the Company agrees to pay on behalf of the Insured LOSS resulting from any occurrence insured by the terms and provisions of the First UNDERLYING INSURANCE policy scheduled in Item 6 of the Declarations (except for the Limits of Liability and defense provisions, if any). The insurance afforded by this policy shall apply only in excess of and after all UNDERLYING INSURANCE (as scheduled in Item 6 of the Declarations) has been exhausted. GenCorp argues that “Underlying Insurance” does not necessarily (or exclusively) refer to the Genco Policies, but could also refer to the primary insurance provided. Policy’No. 79220025 defines “Underlying Insurance” as “meaning all policies scheduled in Item 6 of the Declarations.” Genco 47002 is listed as the “First Underlying Insurance policy” in Item 6. As the district court found, there is no ambiguity; both the insurer and policy number are clearly referenced. See generally Lee R. Russ & Thomas F. Segalla, 2 Couch on Insurance § 18:23, at 18-34, 18-35 (3d ed.1997) (observing that provisions of another policy may be incorporated by reference when the reference is clear). GenCorp also argues that the Federal Policy is ambiguous as to which terms and conditions are followed, because the terms and conditions of the Genco Policies changed over time. GenCorp asserts that due to the changes in the underlying Genco Policies, it is unclear whether the Federal Policy is incorporating the “terms and provisions” as they existed: (1) at the inception of the Federal Policy; (2) on the date of loss; (3) on the date of notice; or (4) after 1995 when the Endorsements were added to the Genco Policies. GenCorp ignores the fact that it made the Endorsements “effective from inception.” Thus, by virtue of this provision, the “terms and provisions” of the Genco Policies are the same at all four points in time. Like the district court, we find no ambiguity. c. American Re-Insurance Company Policy No. M1027784 The relevant language of Policy No. M1027784, which covers January 1, 1976 to January 1, 1977, states: Except as may be inconsistent with this Certificate, the coverage provided by this Certificate shall follow the insuring agreements, conditions and exclusions of the underlying insurance (whether primary or excess) immediately preceding the layer of coverage provided by this Certificate, including any change by endorsements.- The Company shall be notified of any change in coverage or premium in such underlying insurance and copies thereof shall be furnished to the Company upon request. GenCorp argues that Policy No. M1027784, .while it refers to the “immediately preceding layer of coverage,” fails to identify Genco at all. This claim is completely without merit. Item 4 of the Declarations lists the “Underlying Insurance” as “$5,000,000 each occurrence and Annual Aggregrate where applicable, following terms and conditions of Genco Insurance Limited, Policy No. 47002, excess of primary.” Further, the American Policy clearly indicates that it follows form to “any change by endorsements.” The district court’s grant of summary judgment to American Re-Insurance on Policy No. M1027784 was correct. d. International Insurance Company Policy Nos. XSI 5769, XSI 5932, XSI 7189, XSI 7190, XSI 7753, XSI 7754 International Insurance Company, as successor in interest to International Surplus Lines Insurance. Company, sought summary judgment on six policies: XSI 5769 and XSI 5932, both covering December 1,1979 to December 1, 1980; XSI 7189 and XSI 7190, both covering December 1, 1980 to December 1, 1981; and XSI 7753 and XSI 7754, both covering December 1, 1981 to December 1, 1982. The pertinent language in each is as follows: To indemnify the insured for the amount of loss which is in excess of the applicable limits’ of liability of the underlying insurance described in item 4 of the declarations: provided further that the limit of the company’s liability under this policy shall not exceed the applicable amount described in item 5 of the declarations. The provisions of the immediate underlying policy are incorporated as a part of this policy except for any obligation to investigate and defend and1 pay for costs and expenses incident to the same, the amount of the limits of liability, any “other insurance” provision and any other provisions therein which are inconsistent with the provisions of this policy. “Immediate Underlying Policy” is defined as “the policy of the underlying insurance which provides the layer of coverage, whether primary or excess, immediately preceding the layer of coverage provided by this policy.” “Underlying Insurance” means “the insurance policies described in item 4 in the declarations and includes any renewals or replacements of such policies.” GenCorp claims that these policies are somehow ambiguous because they identify merely the “immediately preceding layer of coverage” instead of Genco by name. This argument must be rejected. As noted, the follow form language references item 4 of the declarations, and item 4 in each policy declares that underlying insurance is established “as per Policy Number 47005 ' ISSUED BY GENCO INSURANCE LIMITED.” Thus, not only does each policy expressly reference Genco, it also supplies the policy number. e. Riunione Policy Nos. EL-1773, EL-3120, EL-4261 GenCorp challenges the district court’s grant of summary judgment on three Ri-unione policies: EL-1773, covering February 1, 1977 to January 1, 1978; EL-3120, covering January 1, 1979 to December 1, 1979; and EL-4261, covering December 1, 1979 to December 1,1980. Riunione Policies Nos. EL-1773 and EL-3120 contain the following language: It is agreed that this policy, except as herein stated, is subject to' all conditions, agreements and limitations of and shall follow the Primary Insurance in all respects including changes by endorsement and the Insured shall furnish the Company with copies of such changes. It is further agreed should any alteration be made in the premium for the policy/ies of the Primary Insurers during the period of this Policy, then the premium hereon other then [sic] the Minimum Premium shall be adjusted accordingly. “Primary insurance” is a defined term in Riunione Policy Nos. EL-3120 and EL-1773, meaning “the policy .(policies) described in Item 3 [of the declarations].” Policy No. EL-4261 provides in relevant part: This policy, except where provisions to the contrary appear herein, is subject to all of the conditions, agreements, exclusions and limitations of and shall follow the underlying policies in all respects, including changes by endorsement. The district court granted summary judgment as to Policy Nos. EL-3120 and EL^4261 because both list the Primary Insurer in Item 3 as “Genco Ins. Ltd. 47002.” After noting that Riunione Policy No. EL-1773 was “not a model of clarity” and did not “identify the primary insurer other than saying ‘as on file,’ ” the district court nonetheless ruled in favor of the Excess Insurer because “it appeared] undisputed elsewhere in the voluminous record in this case that Genco 47002 was the primary insurer for the time period covered by EL-1773.” GenCorp, 970 F.Supp. at 1265. GenCorp claims this ruling is inaccurate because the “primary insurer” at that time was actually Liberty Mutual Insurance Company, and improper because it presumes facts in Riunione’s favor. We disagree. First, GenCorp has offered no proof that Liberty Mutual Insurance Company was the “primary insurer” as that term is defined in the policy. Furthermore, Riuione Policy No. EL-1773 specifically provides: This policy covers excess limits only as shown in Section I after and only after the limits, as shown in Section II, of another insurance company, referred to as the primary insurer, are fully used and exhausted. Thus, the “primary insurer” listed in Item 3 of the declarations is synonymous with the insurer listed in Section II. Furthermore, it is undisputed that the limits of the “primary insurer” set forth in Section II are the same limits found in Genco Policy No. 47002. Granted, Item 3 of Riunione Policy EL-1773 does not specify which exact policy it follows form to. Yet the Excess Insurer offered uncontradicted proof that the Riunione Policy issued to GenCorp for the following year, No. EL-2401, was more specific, listing “Genco Ins. Ltd. 4002” next to Item 3. GenCorp has offered no contradicting evidence to plausibly suggest that another carrier was the “primary insurer” here, and therefore failed in its duty as a nonmovant under Rule 56 to come forward with affirmative evidence that creates a triable issue of fact. Absent a true ambiguity, the grant of summary judgment as to No. EL-1773 was proper. Next, GenCorp argues that the Riunione policies evince an intent not to be bound by post-policy changes to the underlying insurance by such limiting language as “during the period of Policy.” This argument is without merit. Read in context, it is clear that the foregoing language refers exclusively to alterations in the premium during the policy period. f. St. Paul Fire & Marine Policy No. 534XA6052 Policy No. 534XA6052, which covers January 1, 1973 through January 1, 1976, states as a condition of coverage the following: It is agreed that this Policy, except as herein stated, is subject to all conditions, agreements and limitations of and shall follow the Primary Insurance in all respects, including changes by endorsement and the Insured shall furnish the Company with copies of such changes. It is further agreed should any alteration be made in the premium for the policy/ies of the Primary Insurers during the period of this Policy, then the premium hereon other than the Minimum Premium shall be adjusted accordingly. The policy lists the “Primary Insurance” as “Chubb & Son, Inc.,” Policy No. 79220007, “Including Renewals or Replacements,” and describes it as “Excess Liability Policy.” The district court determined that the St. Paul contract followed the parameters of the Chubb policy. The Chubb policy, in turn, apparently was the same policy as Federal Insurance Company policy 79220025, which followed form to the “First Underlying Insurance” that is identified as 47002. GenCorp faults the district court for holding that the St. Paul policy followed form to one of the Genco Policies because Genco is not expressly identified in the St. Paul policy. Nonetheless, the record establishes that the St. Paul policy expressly references “Chubb & Son Inc.” as the “Primary Insurance,” and “Policy No’s. (Including Renewals and Replacements)” as “79220007.” Chubb Policy No. 79220007 lists the First Underlying Insurance Policy as “Continental Casualty Co.” However, Policy No. 79220007 covers January 1, 1973 to January 1, 1974. Policy No. 79220007 was replaced by Chubb Policy No. 79220008, which covers the period from January 1, 1974 to January 1, 1975. Policy No. 79220008 likewise lists “Continental Casualty Co.” as the First Underlying Insurance policy. However, Policy No. 7922008 was replaced by Policy No. 79220025, covering the period of January 1, 1975 to January 1, 1976. Policy No. 79220025 lists “Genco Insurance Limited Policy 47002” as the First Underlying Insurance Policy. In short, the 1975-76 St. Paul Policy effectively follows form to the applicable Genco policy. Further, Gen-Corp has offered absolutely no proof to the contrary. Finally, GenCorp argues that the “during the period of the Policy” language means that St. Paul did not intend to be bound by post-loss modifications to the underlying policy. For the reasons stated regarding the Riunione policy, we reject this argument. g. Century Indemnity Policy Nos. ZCX 00 38 70, ZCX 00 42 87, and ZCX 00 60 39 The district court granted summary judgment to Century Indemnity Company on the basis of the following three policies: ZCX 00 38 70, covering December 1, 1979 to December 1,1980; ZCX 00 42 87, covering December 1, 1980 to December 1,1981; and ZCX 00 60 39 covering December 1, 1981 to December 1, 1982. The declarations page of all three policies describe the policy as providing “EXCESS UMBRELLA LIABILITY,” and list the designated underlying primary carrier as “GENCO INSURANCE COMPANY” and “GENCO INSURANCE LIMITED.” However, only ZCX 00 42 87 and ZCX 00 38 70 state: “NOW, this Certificate is to indemnify the Insured in accordance with the applicable insuring agreements, exclusions and conditions of the primary insurance for excess loss as specified in Item 3 (Description of Excess Insurance) of the declarations.” The lower court found that “from the context of the portion of the policy that is submitted, it appears that the [ZCX 00 60 039] was intended to provide the same coverage as the first two [Century Indemnity] policies.” GenCorp, 970 F.Supp. at 1266 n. 13. The district court further found that, although the policies failed to identify the Genco policy 47005 by number, it was clear from the time frame that Genco policy 47005 was in fact the underlying contract. GenCorp claims that “these presumptions in favor of the movant constitute a clear violation of policy interpretation rules and summary judgment standards.” Gen-Corp is wrong. The only failing here is GenCorp’s inability to demonstrate an ambiguity through extrinsic evidence. Given the absence of such, summary judgment for Century Indemnity was proper. h. Central National Policy Nos. CNZ 14-09-24, CNZ 14-18-57, CNZ 14-18-58, CNZ 14-18-80, CNZ 14-18-85, CNZ 00-65-68 Central National Insurance Company of Omaha moved for summary judgment on the following six policies: CNZ 14-09-24, covering January 1, 1977 to January 1, 1978; CNZ 14-18-57 and 14-18-58, both covering January 1, 1979 to January 1, 1980; CNZ 14-18-80, covering December 1, 1979 to December 1, 1980; CNZ 14-18-85, covering December 1, 1980 to December 1, 1981, and CNZ 00-65-68, covering December 1, 1981 to December 1, 1982. Each policy contains the following language: This Policy is subject to the same terms, definitions, exclusions and conditions (except as regards the premium, the amounts and limits of liability and except as otherwise provided herein) as are contained in or as may be added to the Underlying Umbrella Policies stated in Item 2 of the Declarations prior to the happening of an occurrence for which claim is made hereunder. The district court held that the underlying umbrella policy during the time frame of the first policy was Genco policy 47002; and that for the remaining policies, the underlying umbrella policy was Genco policy 47005. The court granted summary judgment as to all six policies. GenCorp reads the foregoing language as expressly refusing to follow endorsements added to the underlying policy after an “occurrence” has taken place. For the same reasons we indicated with respect to the London Policies, summary judgment to Century National on these policies was proper. Nor is GenCorp’s argument that policy CNZ 14-18-80 is ambiguous because it fails to identify the Genco policy to which it follows form persuasive, because GenCorp has failed to present evidence to support a reasonable interpretation that differs from the movant’s. i. First State Policies Nos. 929205, 930719, 932297, 924099 and 927498 Policy No. 930719, covering December 1, 1980 to December 1, 1981 and Policy No. 932297, covering December 1, 1981 to December 1,1982, provide: This Policy is subject to the same terms, definitions, exclusions and conditions (except as regards the premium, the amount and limits of liability and except as otherwise provided herein) as are contained in or as may be added to the Underlying Umbrella Policies stated in Insuring Agreement 1 prior to the happening of an occurrence for which claim is made hereunder. GenCorp claims that Policies 930719 and 932297 do not specifically identify Genco as the underlying carrier to which they follow form. To the contrary, the “Coverage” section in each of these policies plainly states: UNDERLYING UMBRELLA INSURERS AND POLICY NUMBER: Genco Insurance Company Policy Number — To Be Advised GenCorp also faults the district court for “improperly presuming” that the specific Genco policy number “to be advised” was one of the Genco Policies containing the Endorsements. According to the lower court, these policy numbers were “apparent from the time frame.” Once again, GenCorp has failed to present any evidence that any policy other than Genco Policy 47005 would be applicable. Moreover, the district court’s holding is consistent with the fact that the First State policies required GenCorp to maintain underlying insurance- — to which it followed form — during the period of the First State policy. Thus, knowing Genco was the insurer, the only logical conclusion is that Genco Policy 47005, covering January 1, 1979 through December 1, 1982, was the applicable policy. Thus, the grant of summary judgment was proper. GenCorp also claims that First State Policy No. 925932 indicates that it follows form to “United Insurance Company Policy No. 155024.” However, First State did not move for summary judgment on Policy 925932, which was inadvertently attached to First State’s original summary judgment in place of Policy 924099, on which First State did move for summary judgment. A motion to correct this error was filed and granted. Thus, we need not consider GenCorp’s argument regarding this policy. More substantially, GenCorp argues that all five policies refuse to follow endorsements “added to” the underlying policy after an occurrence has taken place. We disagree, for reasons stated previously. Thus, the district court properly granted summary judgment to First State as to these five policies. j. Everest Reinsurance Policy Nos. DXC DX 1282 and DXC DC 1283 Policies Nos. DXC DX 1282 and 1283 both cover the time period of January 1, 1979 to December 1,1979, and provide two different layers of insurance. Both contain the following language: The insurance afforded by this policy is subject to the same warranties, terms, conditions and exclusions as are contained in the Underlying Insurance on the effective date of this policy, except unless specifically provided in this policy, any such warranties, terms conditions or exclusions relating to premium, the obligation to investigate and defend, the amount and limits of liability, and any renewal agreement. The “Underlying Insurance” in each policy is identified as Genco, with policy number “to be determined.” The district court held that each policy fell within the time period covered by Genco policy 47005 and granted summary judgment to the excess insurer. See GenCorp, 970 F.Supp. at 1267. GenCorp complains of improper inference. Again, we hold that GenCorp has failed to present any evidence to create a genuine issue of fact that any policy other than Genco Policy 47005 policy applied. The district court did not err in granting summary judgment to Everest. k. Gibraltar Casualty Policy Nos. GMX 00332, GMX 00333 and GMX 01416 Policies Nos. GMX 00332 and 00333 both cover the time period December 1, 1979 to December 1, 1980. The policies provide different layers of insurance. Policy No. GMX 01416 covered the period from December 1, 1981 to December 1, 1982. The relevant language of each states: Except as may be otherwise provided by the terms and conditions of this policy, the insurance afforded by this policy shall follow the insuring agreements and is subject to the same warranties, terms, definitions, conditions, and exclusions, except as to any renewal agreement, as are contained in the Underlying Insurance identified in Item 5 of the Declarations on the effective date of this policy. In all three, the “Underlying Insurance” is listed as “Genco Insurance Limited Umbrella Liability Policy No. (to be determined).” The district court held that because th