IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-31113
_______________
DONALD N. WILLIAMSON,
Plaintiff-Appellee,
VERSUS
J.C. PENNEY LIFE INSURANCE COMPANY,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________
September 15, 2000
Before JOLLY, SMITH, and BARKSDALE, a catch-all accidental death provision limited to
Circuit Judges. $25,000 for unenumerated causes of death.
Maintaining that a bulldozer is not a “land
JERRY E. SMITH, Circuit Judge: motor vehicle” for purposes of the policy, J.C.
Penney tendered $25,000 to Williamson, who
I. accepted it with a reservation and brought suit
Gisele Williamson was crushed to death by in state court for the remaining $75,000. J.C.
a bulldozer operated by her husband, Donald Penney removed to federal court on the basis
Williamson (“Williamson”), in 1999. She was of diversity jurisdiction.1
covered by an accident insurance policy
written by the defendant, J.C. Penney Life
Insurance Com pany (“J.C. Penney”), 1
The $75,000 amount in controversy re-
providing, inter alia, $100,000 of coverage for quirement for diversity cases, see 28 U.S.C.
accidents involving “land motor vehicles” and (continued...)
The district court concluded that a Passenger Automobiles” by the
bulldozer is a “land motor vehicle” under the Policy; and
policy and granted summary judgment in favor
of Williamson. We disagree and therefore 2. two-wheeled vehicles such as
reverse and render judgment in favor of J.C. motorcycles and motorscooters;
Penney. and
II. 3. vehicles with more than four
Louisiana insurance law governs this wheels, such as tractor/trailer rigs
controversy, and under Louisiana law, general and flat bed trucks.
rules of contract interpretation apply. The or-
dinary meaning of the text governs in the Farm equipment and forklifts are
absence of an absurd result, and each provision specifically excluded under Land Motor
is read in light of the others. In case of Vehicles.
ambiguity, Louisiana courts construe insurance
contracts against the insurer and in favor of The policy definition of “land motor
coverage. See Peterson v. Schimek, 729 vehicle” contains a three-prong conjunctive
So. 2d 1024, 1028-29 (La. 1999). test. First, the vehicle can be “any gasoline,
diesel, or similarly powered vehicle.” Second,
Having closely examined the text of the it must be “customarily used for transportation
particular provision at issue, as well as other on land.” Finally, it must be a vehicle “for
portions of the policy, we conclude that a bull- which the operator is required to be licensed.”
dozer is not a “land motor vehicle” as defined
by the policy and therefore see no need to The parties stipulate that Louisiana law
apply the ambiguity tie-breaker rule. The does not require a license to operate a
dispositive provision reads: bulldozer.2 Therefore, if we determine that the
above provision exhaustively defines the term
LAND MOTOR VEHICLE includes “land motor vehicle,” J.C. Penney is entitled to
any gasoline, diesel, or similarly judgment. If, on the other hand, we decide
powered vehicle customarily used for that the provision is merely illustrative of what
transportation on land and for which the constitutes a “land motor vehicle,” Williamson
operator is required to be licensed. prevails.3
This category includes, but is not limited
2
to the following: J.C. Penney additionally asserts that bull-
dozers fail the second prong of the definitionSSthat
1. vehicles considered “Private is, the requirement of “customar[y] use[] for trans-
portation on land.” We need not address this con-
tention, because the parties agree that bulldozers
fail the third prong of the contract definition.
1
(...continued)
3
§ 1332(a) was apparently satisfied, because Wil- J.C. Penney alternatively submits that bull-
liamson also sought recovery for allegedly arbi- dozers are not “land motor vehicles,” even if the
trary and capricious denial of coverage under LA. contract definition is merely illustrative, citing LA.
R.S. § 22:657. (continued...)
2
A. LAW DICTIONARY 766 (7th ed. 1999).
Little meaning can be gleaned from the
word “includes,” notwithstanding the valiant The same reasoning can be applied against
efforts of both parties. J.C. Penney asserts Williamson. Thus, Williamson’s own claim
that the policy’s use of the phrase “includes, that the word “includes” is necessarily an il-
but is not limited to” with respect to specific lustrative term, because the policy also uses
vehicle types shows that J.C. Penney knows the word “means,” fails for the same
how to draft merely illustrative provisions, and reasonSSbecause J.C. Penney also could have
therefore that the term “includes,” alone, war- used the phrase “includes, but is not limited
rants an exhaustive meaning. to” but, significantly, did not do so. See id.
The difficulty with J.C. Penney’s position, B.
however, is that the policy could have used the Instead, we resolve this case by noting that
word “means” rather than the more ambiguous it involves a listing not of items but rather of
“includes.” Indeed, as Williamson points out, conditions or requirements. Specifically, the
the policy makes use of the word “means” relevant requirement is the phrase “for which
throughout other definitional provisions of the the operator is required to be licensed.”
contract. Furthermore, t he word “including”
“typically indicates a partial list.” BLACK’S It does not make sense that J.C. Penney
would have mentioned the requirement of li-
censing for vehicle operators in its policy if it
3
did not intend for that provision to be
(...continued)
mandatory. Therefore, because a vehicle must
R.S. § 32:1(92), which defines “vehicle” as “every
satisfy each of the policy conditions to
device by which persons or things may be trans-
ported upon a public highway or bridge, except de- constitute a “land motor vehicle,” and because
vices moved by human power or used exclusively Louisiana law does not require a license to
upon stationary rails or tracks.” According to J.C. operate a bulldozer, we conclude that
Penney, bulldozers are not vehicles, because they Williamson is not entitled to recovery for
do not operate on public highways; indeed, such accidents involving “land motor vehicles.”
operation is illegal in Louisiana. A leading au-
thority, by contrast, defines “vehicle” merely as In reaching this conclusion, we necessarily
“[s]omething used as an instrument of conveyance; reject Williamson’s argument that “land motor
any conveyance used in transporting passengers or vehicles” includes bulldozers because
merchandise by land, water, or air.” BLACK’S LAW bulldozers are not within the exclusion of farm
DICTIONARY 1551 (7th ed. 1999). equipment and forklifts. Observing that
Louisiana does not require a license to operate
Applying Louisiana law, without the contract
farm equipment and forklifts,4 Williamson
definition, we would look to the ordinary meaning
of “land motor vehicle,” which plausibly includes
argues that the exclusion provision would have
bulldozers. Alternatively, the term might call for no function, and thus would be rendered mere
application of the ambiguity tie-breaker rule, pur-
suant to which Louisiana courts find coverage. Be-
4
cause, however, we conclude that the policy de- See LA. REV. STAT. ANN. 32:401(17) (ex-
finition is exhaustive, we have no occasion to con- cluding farm implements from definition of “motor
strue the term “land motor vehicle” in its absence. vehicle” for purposes of motor vehicle licensing).
3
surplusage, were we to read the licensing re- in favor of J.C. Penney.8
quirement as mandatory.
Superfluous exceptions are commonplace,
however, and have the effect merely of “mak-
[ing] assurance doubly sure.”5 Thus, although
a pro vision’s meaning might be guided
somewhat by the exceptions to that provision,
the inference is a weak one.
Moreover, J.C. Penney uses the same pol-
icy language in states other than Louisiana.6
Of course, that provision would not be sur-
plusage in those states that require a license to
operate farm equipment or a forklift.7 In any
event, it would be absurd, not to say
unnecessarily burdensome on contract drafters,
to apply the canon against surplusage on the
basis of such subtleties.
In summary, although the policy definition
of “land motor vehicle” is not plainly
unambiguous, the only reasonable construction
is that the requirements of customary use in
transportation and operator licensing are
mandatory and not merely illustrative. We
therefore REVERSE and RENDER judgment
5
See Crandon v. United States, 494 U.S. 152,
174 (1990) (Scalia, J., concurring) (opining that
“superfluous exceptions (to ‘make assurance dou-
bly sure’) are a . . . common phenomenon”).
6
See, e.g., Vanderwagen v. J.C. Penney Life
Ins. Co., 202 F.3d 283, 1999 U.S. App. LEXIS
37762 (10th Cir. Dec. 23, 1999) (unpublished)
(analyzing same language in contract governed by
Illinois law).
7 8
See, e.g., Stanton v. City of Battle Creek, 603 In doing so, we note that our decision today is
N.W.2d 285, 290 (Mich. Ct. App. 1999). consistent with Vanderwagen.
4
RHESA HAWKINS BARKSDALE, Circuit
Judge, specially concurring:
Pursuant to the stated controlling rule of
contract interpretation — the ordinary
meaning of the text governs in the absence of
an absurd result and each provision is read in
light of the others — “includes” is employed in
the provision at issue to exhaustively define
“land motor vehicle”. This is demonstrated, in
part, by the different uses, in that provision, of
“includes” and of the immediately following
“includes, but is not limited to”: the former,
for a complete, or exhaustive, list; the latter,
for a partial, or illustrative, one.
Accordingly, I concur only in the judgment
in favor of J.C. Penny Life Insurance company.