S. WALLACE EDWARDS & SONS, INCORPORATED, Plaintiff-Appellee, v. The CINCINNATI INSURANCE COMPANY, an Ohio Corporation, Defendant-Appellant; S. Wallace Edwards & Sons, Incorporated, Plaintiff-Appellee, v. The Cincinnati Insurance Company, an Ohio Corporation, Defendant-Appellant, 353 F.3d 367

Affirmed by published opinion. Judge WIDENER wrote the opinion, in which Judge BULLOCK concurred. Judge MICHAEL wrote an opinion concurring in part and dissenting in part. OPINION WIDENER, Circuit Judge: Defendant Cincinnati Insurance Company appeals two of the orders making up the judgment of the district court: (1) a July 19, 2002 order granting partial

summary judgment in favor of plaintiff S. Wallace Edwards & Sons, Inc. on its claims for breach of contract and declaratory judgment in the amount of $155,441.41; and (2) an August 15, 2002 order granting the plaintiffs motion to amend and awarding prejudgment interest in the amount of $11,191.78. The defendant contends that the district court erred in granting

summary judgment because the plaintiff failed to set forth any objective evidence that the product was damaged under the terms of the insurance policy and that the plaintiff cannot maintain the breach of contract claim because it failed to adhere to a two-year period of limitation set forth in the insurance policy. For the reasons set forth below, we affirm the judgment of the district court. I. S. Wallace Edwards & Sons, Inc. (Edwards) is a wholesale seller of Virginia ham, bacon, and sausage.

In September of 1999, Edwards had over 70,000 pounds of ham product stored in cold storage at Richmond Cold Storage in Smithfield, Virginia. On September 30, an employee at the storage facility cracked a refrigerant line with a fork-lift, causing the release of anhydrous ammonia vapor within the storage facility. Following this incident, Edwards made a claim under its commercial property policy, which defendant Cincinnati Insurance Company (Cincinnati Insurance) had issued to Edwards & Sons for April 1, 1998 through April 1, 2001.

The claim alleged damage to its property due to the ham products’ exposure to the ammonia. In addition to filing the claim, Edwards collected samples of the exposed product and contacted Microbac Laboratories, Inc. (Microbac), to test the product and determine the extent of the ammonia damage. Cincinnati Insurance sent an adjuster to visit the cold storage facility and inspect the ham that had been exposed. The adjuster stated that he detected the smell of ammonia in the product, and at the direction of his supervisor requested additional evidence of the damage.

The additional evidence requested and sent to the insurance company consisted of: (1) a large loss notice to Cincinnati Insurance; (2) a statement from the forklift driver or other witness; (3) a copy of the sales contract to the wholesale dealer establishing the sale price; (4) certification from the FDA that the meat is contaminated and cannot be sold;

(5) Proof of Loss for claim check subject to Edwards & Sons’ $1,000.00 deductible; and (6) proceed with subrogation against wrongdoer. While Edwards was waiting for the results of the tests from Microbac, the storage facility agreed to repackage the ham products. Edwards agreed, and the repackaging took place on February 10, 2000.Samples of the repackaged product were also sent to Microbac for testing.

Following the repackaging, on March 9, 2000, Cincinnati Insurance sent a letter to Edwards & Sons informing them that “there was nothing wrong with the ham as repackaged,” and that the case was being “removed from active status.” Meanwhile, Microbac informed Edwards & Sons by letter on March 13, 2000 that it was unable to find any regulatory guidelines for the limit of ammonia in pork, other than adulteration.

Thus, Microbac stated that it had arrived at its conclusion by using a reference in an FDA International Association of Refrigerated Warehouses Manual that set forth the guidelines for ammonia contamination of food products. These guidelines indicated that the ammoniacal nitrogen level in meat products normally does not exceed .15 percent and none of the plaintiffs samples had tested above .10 percent. In addition, Microbac noted that there was an ammonia odor while at the refrigerant site, but the analyst did not notice any odor while at the laboratory.

There was also mention in the March 13, 2000 letter of some brown areas observed on the meat, which was assessed as probable effects from being frozen. In a later letter sent March 16, 2000, however, Microbac retracted its earlier statement and concluded that it was unable to determine the cause of the brown areas. Due to Edwards’ uncertainty about the safety of the product and Microbac’s indeterminate analysis, Edwards finally decided to discard the product in April of 2001 as a total loss.

Over one year after receiving the Micro-bac results, and more than two years after notification of the loss, on October 11, 2001, Cincinnati Insurance sent the plaintiff a letter advising Edwards that after a review of the Microbac analyses, the on-sight evaluation, and the fact that the “USDA ha[d] not determined that the product [wa]s unsafe for human consumption,” there was insufficient evidence to determine that the product was damaged from exposure to ammonia. Accordingly, Cincinnati Insurance denied the claim on the basis that Edwards & Sons had not shown any damage.

Edwards filed this action on January 22, 2002, in the Circuit Court of Surry County, Virginia. The complaint asserted three claims. First, Edwards sought a declaratory judgment that the defendant has an obligation under the policy to pay the claim because the ammonia exposure had caused damage to Edwards & Sons’ product. Second, Edwards & Sons alleged a breach of contract claim against Cincinnati Insurance. Lastly, Edwards asserted that Cincinnati Insurance was acting in bad faith in denying the coverage. Cincinnati Insurance removed the case to federal district court on February 19, 2002.

On that same day, Cincinnati Insurance filed in state court its answer and grounds of defense to Edwards & Sons’ original complaint. Once the case was removed, Edwards filed a motion for partial

summary judgment, asserting that there was no genuine issue of material fact regarding the claim for declaratory judgment and breach of contract claim (counts I and II). It reserved the bad faith claim (count III) for trial. In response, Cincinnati Insurance filed a motion for

summary judgment as to all claims, contending in its accompanying memorandum that there was no damage to the ham products and thus it was not obligated to pay under the policy; that Edwards & Sons could not maintain the breach of contract claim because, inter alia, it was filed beyond the two-year limitations period required under the policy; and that it did not act in bad faith in denying the claim. On July 19, 2002, the district court granted

summary judgment in favor of Edwards & Sons on its claims for a declaratory judgment and for breach of contract, but granted

summary judgment for Cincinnati Insurance as to the claim of bad faith. On August 1, 2002, Edwards & Sons filed a motion to amend its judgment to include an award of prejudgment interest which was granted by the district court in the amount of $11,191.78. Cincinnati Insurance appeals the money judgments against it. There is no issue on appeal of bad faith in the denial of coverage by Cincinnati. There is also no issue on appeal as to the amount of dam-age if any should be awarded. Cincinnati Insurance takes the position that no damages at all are authorized. We review the district court’s grant of

summary judgment de novo. See Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 766 (4th Cir.2003).

Summary judgment is warranted when there are no material facts in dispute and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The non-moving party has the burden of showing that a genuine dispute exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). II.

The principal contention of Cincinnati Insurance on appeal is that the district court should have applied a provision of the insurance policy contained as a Commercial Property Condition, numbered D, which is that: No one may bring a legal action against us under this Coverage Part unless: ... 2. The action is brought within 2 years after the date on which the direct physical loss or damage occurred. It is agreed that the direct physical loss or damage occurred on September 30, 1999 and that this case was filed in the Circuit Court of Surry County, Virginia, on January 22, 2002.

So more than two years had elapsed between the date of the damage and the filing of the suit. The district court held that the time “limitation in the contract becomes the functional equivalency of a code section, and therefore is entitled to the protection that it gets under the Virginia statute.” The district court applied “the statute of limitations that applies under Virginia law [and] is five years. See Virginia Code

Section 8.01-246 and 243.” Virginia Code § 8.01-235 provides in part that “[t]he objection that an action is not commenced within the limitation period prescribed by law can only be raised as an affirmative defense specifically set forth in a responsive pleading.” Although Cincinnati Insurance had filed its grounds of defense in the Circuit Court of Surry County, obviously just prior to removal of the case, the grounds of defense did not contain any plea or ground of defense that the action had not been commenced, following the terms of the policy, within two years after the date on which the direct physical loss or damage occurred.

The district court correctly held that the contractual limitation was an affirmative defense and because it had not been raised in the grounds of defense filed by Cincinnati Insurance, it had been waived by the failure to raise it as an affirmative defense in its responsive pleading. The district court also held that Cincinnati Insurance had waived the two-year limitation provision in the contract “by its conduct in responding to Edwards’ claim.” We agree with the result obtained by the district court, but for a somewhat different reason. See SEC v. Chenery, 318 U.S. 80, 88, 63 S.Ct. 454, 87 L.Ed. 626 (1943).

The district court’s equating the contractual limitation to a statute of limitations was not authorized under Virginia law. In two cases the Virginia court has held that statutory and contractual limitations are different. See Massie v. Blue Cross and Blue Shield, 256 Va. 161, 500 S.E.2d 509 (1998), and Board of Supervisors of Fairfax County v. Sampson, 235 Va. 516, 369 S.E.2d 178 (1988). The Supreme Court has held in Guaranty Trust Co. v.

York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945), that a federal court, adjudicating a state-created right solely because the diversity of citizenship of the parties, is obliged to apply the statute of limitations which would be applied by a state court, which the district court related in this case is five years. But applying the Virginia statute of limitations under the rule of Guaranty Trust Co. would have no application here because in Virginia, as Sampson and Massie have held, contractual and statutory limitations are not the same under Virginia law.

The district court’s alternate reasons for its decision are next examined. The district court decided that the two-year contractual limitation had been waived by “failing to raise it as an affirmative defense in its responsive pleading and by its conduct in responding to Edwards’ claim.” Federal Rules of Civil Procedure 8(

c) provides in pertinent part that: In pleading to a preceding pleading, a party shall set forth affirmatively [among other things] ... any other matter constituting an avoidance or affirmative defense. And the Federal Rules of Civil Procedure govern. Granny Goose Foods v. Teamsters, 415 U.S. 423, 437, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974). This is agreed to by Cincinnati Insurance. Br. p. 38-39.

We are of opinion that a defense urged by an insurance company of such a breach of a provision of the policy by an insured is an affirmative defense under Rule 8(c). 5 Wright and Miller, Federal Practice and Procedure § 1271 (5th Ed.1994) (noting decisions in United States Courts of Appeal for the Fifth, Eighth and Tenth Circuits); Appleman, Insurance Law and Practice (Berdal ed.) §§ 11976 and 12014 (1980) (noting state decisions in Massachusetts, Arkansas, Maine, Texas and Missouri). In Caterpillar Overseas S.A. v.

Marine Transport, Inc., 900 F.2d 714 (4th Cir.1990), a case under the Carriage of Goods By Sea Act, we held that a contractual limitation of liability required the pleading of such a defense under Rule 8(

c) and that when all the facts were apparent to the parties, as here, “Such a record would support a waiver of any possible failure to plead,” 900 F.2d at 725 n. 7, but waiver was not decided when the district court treated any such requirement as waived. 900 F.2d at 725. In Brinkley v. Harbour Recreation Club, 180 F.3d 598 (4th Cir.1999), a Title VII and Equal Pay Act case, we held that a statutory defense of a “factor other than sex defense” under the Equal Pay Act is an affirmative defense which must be pleaded under Rule 8(

c) which may result in waiver. Such waiver, however, should not be effective unless the failure to plead resulted in unfair surprise or prejudice. Brinkley, 180 F.3d at 612-13. In the case at hand, we are of opinion that the affirmative defense of a two-year limitation on bringing suit was an affirmative defense which should have been asserted under Rule 8(

c) and that the decision of the district court, that it had been waived, was not error. We note that the district court not only correctly characterized the two-year limitation as an affirmative defense but also based its decision on Cincinnati’s “conduct in responding to Edwards’ claim.” That conduct included the following: Cincinnati Insurance was notified of the loss only a few days after the leaking ammonia was discovered.

For some two years it negotiated with Edwards with respect to the amount of the loss, engaged in discovery, attended depositions of witnesses, and examined the reports of proposed witnesses with respect to that loss. Cincinnati Insurance never denied liability on the claim until October 11, 2001, some 11 days after the two-year limitation period of the policy had expired. Although the two-year defense was available to Cincinnati Insurance at the time, the letter denying liability to Edwards relied on the contention of the insurance company that there was no damage, it never mentioned the two-year limitation.

In a nutshell, the letter states, “There is still insufficient evidence to determine that this product was damaged from exposure to ammonia.” Although the two-year period had expired when Cincinnati Insurance filed its grounds of defense on February 19, 2002, the grounds of defense did not mention the two-year limitation period as a defense. Although the two-year period had expired on September 30, 2001, on April 11, 2002 the case was even set for trial on July 26, 2002, and the two-year period had not then been mentioned. The two-year period was never mentioned until Cincinnati filed its motion for

summary judgment and response to Edwards’ motion for

summary judgment on June 28, 2002, which was the first time the two-year defense was mentioned by the insurance company. Under such circumstances, we are of opinion and hold that the decision of the district court, that the two-year defense had been waived, was not erroneous. Under the facts of this case, if that defense were not waived, Cincinnati Insurance, by its inaction and persistence that there had been no damage, would simply escape liability. Whether the actions of Cincinnati Insurance were by inadvertence or design, the result does not differ.

Edwards was taken by unfair surprise and prejudiced by the delayed assertion of the two-year limitation as a defense. III. The last argument we consider is the contention of Cincinnati Insurance that there was no evidence that the ammonia rendered the meat products damaged. In the most general terms, it argues that the ham products were not adulterated because the evidence would show the meat was not injurious to health. The policy provides in the building and personal property coverage form that: We will pay for direct physical loss of or damage to Covered Property in the premises described.

The policy does not define damage, and the district court gave the policy language its plain and ordinary meaning of “impairment of the usefulness or value of person or property; or harm.” It rejected an argument of Cincinnati Insurance that the ham had to be classified as adulterated under USDA regulations relating to meat products.

It relied upon the undisputed facts that the meat was exposed “to very high levels of anhydrous ammonia gas, which is described as both poisonous and toxic”; that the ham was not hermetically packaged; that the ammonia had permeated into the meat; that the exposure caused an odor of ammonia about the meat; and that a discoloration reduced the quality of the meat. The insurance adjuster for Cincinnati Insurance testified in his deposition that some three weeks after the exposure there was still an odor of ammonia in the rooms where the ham involved was stored.

Even if most of the laboratory tests of the meat, many of which showed ammonia content, did not show a content high enough to be actually dangerous to human health, one of the samples showed an ammonia content of 938 parts per million, while the danger point was 870. The district court found that the exposure to ammonia caused an odor and discoloration that reduced the quality of the product whether or not it may not have been directly injurious to health or adulterated under the regulations. We are of opinion the district court was correct in its construction of the policy and in its view of the evidence.

The evidence the district court relied on, and we have related, is not subject to contradiction, and even if the argument of Cincinnati Insurance is that Edwards destroyed too much of the ham rather than examining it piece by piece to see which was discolored and which smelled of ammonia, we do not believe, and are of opinion, that no duty of minimizing damages would require Edwards to so segregate the thousands of pieces of ham involved when there was a very real chance of risk to human health in selling the product for human consumption.

In this respect, the witness Krut was prepared to testify that the disposition of all of the ham exposed to ammonia was the way the Hazardous Analysis Critical Control point system of the USDA is supposed to work. If the ham, having been exposed to anhydrous ammonia, had been introduced into commerce by Edwards, in his opinion the USDA would have tagged the product and recommended that Edwards recall it. Krut is the Executive Director of the American Association of Meat Processors and has worked with the USDA’s Food, Safety and Inspection Service and in various other aspects of the meat industry.

The judgment of the district court is accordingly AFFIRMED. . Edwards & Sons notified its insurance agent of the ammonia incident on October 7, 1999, and the agent contacted Cincinnati Insurance shortly thereafter. . The email relaying this information requested certification from the FDA, but it is not clear from the record whether this would be regulated by the FDA or the USDA. The plaintiff stated in its brief that the USDA is the agency that regulates meat products.

Upon contacting the USDA for information, the plainliff was informed that, per regulations, the meat packer had the responsibility for assuring that the product was safe for human consumption and the USDA remained neutral until the product had been released into commerce. . Under paragraph D of the Commercial Property Conditions, the policy states, “No one may bring a legal action against us under this Coverage Part unless: 1. There has been full compliance with all of the terms of this Coverage Part; and 2.

The action is brought within 2 years after the date on which the direct physical loss or damage occurred.” . The district court held that Cincinnati waived the two-year limitation of action in the insurance policy. It stated "Cincinnati has waived the two-year limitation provision, both by failing to raise it as an affirmative defense in its responsive pleading and by its conduct in responding to Edwards' claim.” J.A., Vol. I, p. 150. The grounds of defense filed by Cincinnati in the state court just prior to removal did not rely on the two-year limitation.

Under the facts of this case and under Virginia law, that would have been a waiver of the notice provision of the policy. Lumbermen’s Mutual Casualty Co. v. Hodge, 205 Va. 36, 135 S.E.2d 187 (1964).

But under Erie Railroad and Fed.R.Civ.P. 81(c), the federal rules apply to "actions removed to the United States District Courts from the state courts and govern procedure after removal.” Thus, while the filing of the grounds of defense in the state court may be governed by state law, the actions of Cincinnati in not bringing the policy defense to the attention of the court or the plaintiff until after the case was set for trial is governed by federal law. In that respect. Rule 8(

c) requires that such defense "shall be set forth affirmatively,” which was never done until Cincinnati’s motion for

summary judgment was filed and trial was imminent. We do not hold that Rules 8(

c) and 81(

c) require the inclusion of the policy defense in the grounds of defense filed in the state court, but we do hold that the failure of Cincinnati to comply with the substantive provisions of Rule 8(

c) is appropriately considered in deciding the effect of the failure to include the policy defense in either the grounds of defense, or in any of the various papers filed with the district court prior to the motion for

summary judgment, or in any of the communications made to the plaintiff. Rule 8(

c) prevents just such inaction from reaping the benefit of notice timely given under the rules of court.