Bryan D. Tourdot v. Rockford Health Plans , Inc .

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1764
B RYAN D. T OURDOT ,
Plaintiff-Appellant,
v.
R OCKFORD H EALTH P LANS , I NC .,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 04 C 0404 C—Barbara B. Crabb, Chief Judge.
____________
A RGUED N OVEMBER 8, 2005—D ECIDED F EBRUARY 27, 2006
____________
Before C UDAHY , K ANNE , and S YKES , Circuit Judges.
C UDAHY , Circuit Judge. Bryan D. Tourdot (Tourdot)
sustained significant injuries when he crashed his motorcy-
cle into an automobile in Janesville, Wisconsin. Tourdot,
who contends that exotic dancers at a local gentlemen’s club
momentarily distracted him, was legally intoxicated at the
time of the crash. His health insurer, Rockford Health
Plans, Inc., (Rockford) denied coverage on the basis of a
provision that excludes coverage for injuries resulting from
the “commission of . . . any illegal act.” Tourdot, saddled
with about $50,000 in hospital bills, filed suit against
Rockford arguing that its illegal acts exclusion was ambigu-
ous. The district court disagreed and granted Rockford’s
motion for summary judgment. We affirm.

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2 No. 05-1764
1 On September 30, 2003, the Wisconsin legislature reduced the
prohibited level from 0.10 g/dL to 0.08 g/dL.
I. Background
On July 16, 2003, Tourdot attended a drag race in Union
Grove, Wisconsin, where, according to his pleadings, he
drank four or five beers. A few hours after the race, he
crashed his motorcycle in Janesville, Wisconsin, which is
about sixty miles west of Union Grove. Although Tourdot
did not consider his driving to be impaired, a Breathalyser
test administered at the scene of the accident showed his
blood-alcohol level to be 0.10 g/dL. Later, a blood test
administered in an emergency room showed his blood-
alcohol level to be, in fact, 0.14 g/dL.
At the time of the accident, a blood-alcohol level of 0.10
g/dL or more constituted a prohibited alcohol concentration
under Wisconsin law. Wis. Stat. § 340.01(46m)(a). 1 Al-
though Tourdot’s blood-alcohol level was above the legal
limit, an officer cited him only for inattentive driving
in violation of Wis. Stat. § 346.89(1). In Wisconsin, inat-
tentive driving is punishable by civil forfeiture. Id.
§ 346.95(2).
As a result of the accident, Tourdot suffered a broken leg
and other injuries for which he received treatment at Mercy
Hospital in Janesville, where his treatment costs totaled
$47,744.84. Two days later, Rockford notified Tourdot that
it was denying coverage for his hospital expenses based on
an exclusion for “treatment, services and supplies in
connection with any illness or injury caused by a [policy-
holder’s] operation of a motorized vehicle when legally
prohibited and/or intentional use of illegal drugs.” This
exclusion, however, was not in effect at the time of
Tourdot’s accident. Tourdot accordingly challenged the
denial.

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No. 05-1764 3
On October 23, 2003, Rockford revised its position to state
that its denial was based on a different exclusion that was
in place at the time of the denial. Specifically, Rockford
clarified that it based the denial on an exclusion for
“[s]ervices which result from war or act of war, whether
declared or undeclared, or from participation in an insurrec-
tion or riot, or in the commission of an assault, felony,
terrorist action, or any illegal act.” Tourdot objected to
this exclusion as well and ultimately filed suit. Both parties
moved for summary judgment. The district court denied
Tourdot’s motion but granted Rockford’s, concluding that
the exclusion is clear and that Tourdot’s conduct plainly fell
within its scope. Tourdot then filed this appeal, contending
that the use of “any illegal act” in this context is ambiguous.
II. Discussion
We review a district court’s order entering summary
judgment de novo, construing all facts and drawing all
reasonable inferences in favor of the nonmoving party.
Greater Chicago Combine & Ctr., Inc. v. City of Chicago,
431 F.3d 1065, 1070 (7th Cir. 2005). Summary judgment
is proper when 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.” F ED . R. C IV . P RO . 56.
Tourdot frames his argument that the district court’s
grant of summary judgment to Rockford was inappropri-
ate in terms of ejusdem generis, a canon of construction to
be used where statutory or other language is ambiguous.
E.g., Garcia v. United States, 469 U.S. 70, 74-75 (1984);
Ortloff v. United States, 335 F.3d 652, 658-59 (7th Cir.
2003); United States v. Irons, 640 F.2d 872, 875-76 (7th Cir.
1981). He argues that the policy’s phrase “or any other
illegal act” is ambiguous, because the context of the exclu-
sions suggests that Rockford intended to preclude coverage

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4 No. 05-1764
for more serious wrongs and harms (such as acts of war).
This argument, while creative, turns ejusdem generis on its
head.
Ejusdem generis provides guidance on how to interpret
language where meaning is not plain. This Latin phrase
confines the scope of a general term to the nature of the
preceding class or thing, unless a contrary intent is
clearly shown. Irons, 640 F.2d at 875-76. Since the canon is
intended only as an aid to ascertaining the intent of
the drafters when uncertainty or ambiguity exists, it
applies only when it is not possible to determine the
meaning of the words unless one focuses on the context.
That is not the case here. It is important to note that
Tourdot uses ejusdem generis both to create and to re-
solve the ambiguity allegedly at issue in the case. Such
an application of ejusdem generis is improper, since the
canon may not be used to defeat the obvious purpose or
plain meaning of the text. Id. at 876. Sanctioning such
an application would frustrate the goals of plainly writ-
ten text and require elaborate explanations of terms, for
it is fairly easy to create an ambiguity when one wishes
to do so.
Here, as the district court recognized, there is no such
ambiguity. The phrase “illegal acts” has a plain meaning; it
simply refers to any activity contrary to law. Sisters of the
Third Order of St. Francis v. SwedishAmerican Group
Health Benefit Trust, 901 F.2d 1369, 1372 (7th Cir. 1990).
We thus have no reason to turn to ejusdem generis, because
we understand the meaning of the term as it is written.
Rockford’s exclusion may be awkward and inelegant, but it
is plain. Given that the phrase “illegal acts” plainly refers
to acts that the legislature has deemed contrary to law, the
next logical question is whether Tourdot’s activities fall
within that classification.
At the time Tourdot crashed his motorcycle, the Wiscon-

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No. 05-1764 5
sin legislature had determined that a person with a blood-
alcohol concentration above 0.10 g/dL who operates a motor
vehicle has violated the law. Wis. Stat. § 346.63(1)(b).
Although Wisconsin plainly proscribes drunken driving, the
legislature has chosen to penalize the first offense of this
sort as a civil forfeiture. Id. § 346.65(2)(a). The issue now is
whether that penalty arrangement somehow affects the
legality of the offense.
Few courts have dealt with this precise issue. The leading
case in this circuit remains Judge Reynolds’ thoughtful
decision in Lampen v. Albert Trostel & Sons Co. Employee
Welfare Plan, 832 F. Supp. 1287 (E.D. Wis. 1993). In that
opinion, Judge Reynolds concluded that the nature of the
penalty was an issue separate from the nature of the act.
That is, Wisconsin’s decision to penalize the first offense
under the strictures of the civil system does not transform
the essential nature of drunken driving. Given that the
legislature has proscribed drunken driving, the penalty
structure for first-time offenders is immaterial. Lampen,
832 F. Supp. at 1292. This conclusion is sensible. The
legislature may have myriad reasons for adopting this
penalty system, whose wisdom is not for us to judge. As
Judge Reynolds recognized, the fact remains that drunken
driving is an activity contrary to Wisconsin law. In addition,
the fact that Tourdot was ticketed not for drunken driving
but for inattention does not change the fact that he was
indeed driving drunk, which is contrary to Wisconsin law.
Tourdot also argues that Rockford’s revision of its policy
to include a specific provision denying coverage for drunken
driving indicates that the earlier version was indeed
ambiguous. Tourdot, however, has presented no evidence on
this point. Even if he had, Rockford’s decision to revise its
policy does not defeat the plain meaning of “illegal acts.”
This argument accordingly fails.

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6 No. 05-1764
III. Conclusion
The reality of cases such as this one, where insurers deny
coverage based on some purported wrongdoing on the part
of the insured party, is that the hospital will frequently be
stuck with the bill. We, of course, do not know whether
Tourdot would be good for the nearly $50,000 he owes. But
we are satisfied that this would generally not be the case,
meaning that this sort of exclusion, aimed at moral hazard,
in fact penalizes providers of medical service. This raises
real questions, but they can play no part in our analysis.
Accordingly, we A FFIRM the judgment of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-27-06

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