M.m. Sundt Construction Company, National Union Fireinsurance Company, California Union Insurancecompany, Plaintiffs-appellants, v. Continental Casualty Company, Defendant-appellee,andnational Surety Corporation, Defendant,andmartinez Custom Trailers, Inc., Defendant-third-party-plaintiff, v. Leslie P. Storhaug, Individually; Storhaug Insuranceagency, Inc., Third-party-defendants.m.m. Sundt Construction Company, National Union Fireinsurance Company, California Union Insurancecompany, Plaintiffs-appellants, v. Continental Casualty Company, Defendant-appellee,andnational Surety Corporation, Defendant,andmartinez Custom Trailers, Inc., Defendant-third-party-plaintiff, v. Leslie P. Storhaug, Individually; Storhaug Insuranceagency, Inc., Third-party-defendants, 51 F.3d 286 (10th Cir. 1995)

Before KELLY and SETH, Circuit Judges, and KANE,^**  District Judge.

ORDER AND JUDGMENT¹ 

After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. These cases are therefore ordered submitted without oral argument.

In No. 93-2328, plaintiffs appeal an order of the district court granting defendant Continental Casualty Company's motion for summary judgment. The district court's order is final and appealable because plaintiffs' claims against the other defendants and the third-party claims had either been settled or were rendered moot by the summary judgment decision. Plaintiffs challenge only the court's grant of summary judgment to Continental. In No. 94-2024, plaintiffs appeal the district court's order denying their motion for reconsideration filed pursuant to Fed. R. Civ. P. 59.

The parties are familiar with the facts and issues and we will not repeat them. In granting summary judgment, the district court held that no material facts were disputed and that the contract provision that Martinez name Sundt an additional insured was not ambiguous. The court held that provision was not intended to require Martinez to provide general coverage for Sundt's own actions, but rather was intended to insure Sundt for any liability Sundt might incur as a result of Martinez' acts.

We review the district court's grant of summary judgment de novo applying the same standard used by the district court. James v. Sears, Roebuck & Co., 21 F.3d 989, 997-98 (10th Cir. 1994). The district court, in ruling on a motion for summary judgment, may not make findings as to what the facts are, but examines the facts alleged to be disputed to determine whether they are material and, if so, whether they actually are disputed. Cf. Williams v. West Jordan City, 714 F.2d 1017, 1020 (10th Cir. 1983) (district court's finding on police manual rule was not error because issue was not one of material fact).

The determination of whether a contract is ambiguous is a matter of law which we review de novo. See Vermejo Park Corp. v. Kaiser Coal Corp. (In re Kaiser Steel Corp.), 998 F.2d 783, 789 (10th Cir. 1993). The contract here is clear and unambiguous. The contract states that " [w]ith respect to the acts of MARTINEZ CUSTOM TRAILER, INC., Officers, Employees, subcontractors, and or Agents, in the performance of work on this project, M.M. Sundt Construction Company shall be named as additional insured." Appellant's App. Vol. I at 28. Martinez was to insure Sundt only as to liability it might incur as a result of Martinez' acts. Plaintiffs' arguments on other issues are without merit and are irrelevant to this appeal.

The only remaining issue is whether the claims asserted against Sundt in the state court action arose out of acts of Martinez such that Continental had a duty to defend Sundt. The plaintiff alleged separate causes of action against Sundt and Martinez. It was alleged that Sundt had not acted in accordance with its written safety policy because it had not placed required traffic control signs and equipment in place prior to beginning construction. Id. Vol. II at 268. Against Martinez, the plaintiff claimed a driver for Martinez had negligently attempted to drive across the highway and had collided with the plaintiff's automobile. Id. at 267-68. These two claims stand on their own. The negligence of Martinez' driver is not related to Sundt's negligence in failing to follow its own safety procedures.

Plaintiffs' remaining arguments are without merit. In No.94-2024, plaintiffs argue the materials they submitted to the court in their motion to reconsider created genuine issues of material fact. We disagree.

The judgments of the United States District Court for the District of New Mexico are AFFIRMED.