United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
February 13, 2007
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
_______________________
No. 06-40668
_______________________
JIMMIE RUTH SMITH, Individually and as Representative
of the Estate of Larry D. Smith, deceased,
Plaintiff-Appellee-Cross-Appellant,
versus
STONEBRIDGE LIFE INSURANCE CO, formerly known as
J C Penny Life,
Defendant-Appellant-Cross-Appellee.
__________________________________________________________
Appeals from the United States District Court
for the Eastern District of Texas
(USDC No. 2:05-CV-04-DF)
__________________________________________________________
Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Stonebridge Life Insurance Company appeals the district court’s summary judgment
that Jimmie Ruth Smith recover $75,000 under a life insurance policy. Smith cross appeals
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
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the district court’s dismissal of her claims of breach of contract and violations of the Texas
Deceptive Trade Practices Act (“DTPA”) and the Texas Insurance Code. We reverse the
judgment awarding policy recovery and affirm dismissal of the state law claims for the
following reasons:
1. The all terrain vehicle (“ATV”) at issue is not a “private passenger
automobile” within the meaning of the insurance policy. The policy defines
a “private passenger automobile” as “a four-wheeled automobile which is not
licensed to carry passengers for hire and which is of the pleasure type,
including a station wagon, van, jeep, or truck type with a factory rating load
capacity of 2,000 pounds or less or self-propelled motor home type vehicles.”
The district court correctly looked to the contract’s definition of “private
passenger automobile,” but the district court focused on the description “of the
pleasure type” and did not accord the ordinary meaning of the term
“automobile.” An “automobile” is “a usually four-wheeled automotive vehicle
designed for passenger transportation.” MERRIAM-WEBSTER’S COLLEGIATE
DICTIONARY 121 (deluxe ed. 1998). Applying this plain meaning, an ATV is
not an automobile because it is not designed for passenger transportation and
is not licensed for travel on highways and roads. Smith argues that we should
apply the canon expressio unius est exclusio alterius, but that canon is only an
aid to the resolution of ambiguities. Neuberger v. Commissioner, 311 U.S. 83,
88, 61 S. Ct. 97, 101 (1940). Here there is no ambiguity. As the owner’s
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manual and manufacturer warnings make clear, the ATV is not designed to
carry passengers and therefore is not a private passenger automobile.
2. Because there is no coverage under the insurance policy, there is no liability
for breach of contract or for violations of the DTPA or Texas Insurance Code.
See, e.g., Allstate Ins. Co. v. Bonner, 51 S.W.3d 289, 291 (Tex. 2001).
AFFIRMED IN PART; REVERSED IN PART; CAUSE REMANDED FOR DISPOSITION
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