Williamson v. J C Penney Life Ins

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,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
I.
Gisele Williamson was crushed to death by
a bulldozer operated by her husband, Donald
Williamson (“Williamson”), in 1999. She was
covered by an accident insurance policy
written by the defendant, J.C. Penney Life
Insurance Com pany (“J.C. Penney”),
providing, inter alia, $100,000 of coverage for
accidents involving “land motor vehicles” and
a catch-all accidental death provision limited to
$25,000 for unenumerated causes of death.
Maintaining that a bulldozer is not a “land
motor vehicle” for purposes of the policy, J.C.
Penney tendered $25,000 to Williamson, who
accepted it with a reservation and brought suit
in state court for the remaining $75,000. J.C.
Penney removed to federal court on the basis
of diversity jurisdiction.1
1 The $75,000 amount in controversy re-
quirement for diversity cases, see 28 U.S.C.
(continued...)

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2
The district court concluded that a
bulldozer is a “land motor vehicle” under the
policy and granted summary judgment in favor
of Williamson. We disagree and therefore
reverse and render judgment in favor of J.C.
Penney.
II.
Louisiana insurance law governs this
controversy, and under Louisiana law, general
rules of contract interpretation apply. The or-
dinary meaning of the text governs in the
absence of an absurd result, and each provision
is read in light of the others. In case of
ambiguity, Louisiana courts construe insurance
contracts against the insurer and in favor of
coverage. See Peterson v. Schimek, 729
So. 2d 1024, 1028-29 (La. 1999).
Having closely examined the text of the
particular provision at issue, as well as other
portions of the policy, we conclude that a bull-
dozer is not a “land motor vehicle” as defined
by the policy and therefore see no need to
apply the ambiguity tie-breaker rule. The
dispositive provision reads:
LAND MOTOR VEHICLE includes
any gasoline, diesel, or similarly
powered vehicle customarily used for
transportation on land and for which the
operator is required to be licensed.
This category includes, but is not limited
to the following:
1. vehicles considered “Private
Passenger Automobiles” by the
Policy; and
2. two-wheeled vehicles such as
motorcycles and motorscooters;
and
3. vehicles with more than four
wheels, such as tractor/trailer rigs
and flat bed trucks.
Farm equipment and forklifts are
specifically excluded under Land Motor
Vehicles.
The policy definition of “land motor
vehicle” contains a three-prong conjunctive
test. First, the vehicle can be “any gasoline,
diesel, or similarly powered vehicle.” Second,
it must be “customarily used for transportation
on land.” Finally, it must be a vehicle “for
which the operator is required to be licensed.”
The parties stipulate that Louisiana law
does not require a license to operate a
bulldozer.2 Therefore, if we determine that the
above provision exhaustively defines the term
“land motor vehicle,” J.C. Penney is entitled to
judgment. If, on the other hand, we decide
that the provision is merely illustrative of what
constitutes a “land motor vehicle,” Williamson
prevails.3
1(...continued)
§ 1332(a) was apparently satisfied, because Wil-
liamson also sought recovery for allegedly arbi-
trary and capricious denial of coverage under LA.
R.S. § 22:657.
2 J.C. Penney additionally asserts that bull-
dozers fail the second prong of the definitionSSthat
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.
3 J.C. Penney alternatively submits that bull-
dozers are not “land motor vehicles,” even if the
contract definition is merely illustrative, citing LA.
(continued...)

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3
A.
Little meaning can be gleaned from the
word “includes,” notwithstanding the valiant
efforts of both parties. J.C. Penney asserts
that the policy’s use of the phrase “includes,
but is not limited to” with respect to specific
vehicle types shows that J.C. Penney knows
how to draft merely illustrative provisions, and
therefore that the term “includes,” alone, war-
rants an exhaustive meaning.
The difficulty with J.C. Penney’s position,
however, is that the policy could have used the
word “means” rather than the more ambiguous
“includes.” Indeed, as Williamson points out,
the policy makes use of the word “means”
throughout other definitional provisions of the
contract. Furthermore, t he word “including”
“typically indicates a partial list.” BLACK’S
LAW DICTIONARY 766 (7th ed. 1999).
The same reasoning can be applied against
Williamson. Thus, Williamson’s own claim
that the word “includes” is necessarily an il-
lustrative term, because the policy also uses
the word “means,” fails for the same
reasonSSbecause J.C. Penney also could have
used the phrase “includes, but is not limited
to” but, significantly, did not do so. See id.
B.
Instead, we resolve this case by noting that
it involves a listing not of items but rather of
conditions or requirements. Specifically, the
relevant requirement is the phrase “for which
the operator is required to be licensed.”
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
did not intend for that provision to be
mandatory. Therefore, because a vehicle must
satisfy each of the policy conditions to
constitute a “land motor vehicle,” and because
Louisiana law does not require a license to
operate a bulldozer, we conclude that
Williamson is not entitled to recovery for
accidents involving “land motor vehicles.”
In reaching this conclusion, we necessarily
reject Williamson’s argument that “land motor
vehicles” includes bulldozers because
bulldozers are not within the exclusion of farm
equipment and forklifts. Observing that
Louisiana does not require a license to operate
farm equipment and forklifts,4 Williamson
argues that the exclusion provision would have
no function, and thus would be rendered mere
3(...continued)
R.S. § 32:1(92), which defines “vehicle” as “every
device by which persons or things may be trans-
ported upon a public highway or bridge, except de-
vices moved by human power or used exclusively
upon stationary rails or tracks.” According to J.C.
Penney, bulldozers are not vehicles, because they
do not operate on public highways; indeed, such
operation is illegal in Louisiana. A leading au-
thority, by contrast, defines “vehicle” merely as
“[s]omething used as an instrument of conveyance;
any conveyance used in transporting passengers or
merchandise by land, water, or air.” BLACK’S LAW
DICTIONARY 1551 (7th ed. 1999).
Applying Louisiana law, without the contract
definition, we would look to the ordinary meaning
of “land motor vehicle,” which plausibly includes
bulldozers. Alternatively, the term might call for
application of the ambiguity tie-breaker rule, pur-
suant to which Louisiana courts find coverage. Be-
cause, however, we conclude that the policy de-
finition is exhaustive, we have no occasion to con-
strue the term “land motor vehicle” in its absence.
4 See LA. REV. STAT. ANN. 32:401(17) (ex-
cluding farm implements from definition of “motor
vehicle” for purposes of motor vehicle licensing).

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4
surplusage, were we to read the licensing re-
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
in favor of J.C. Penney.8
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 See, e.g., Stanton v. City of Battle Creek, 603
N.W.2d 285, 290 (Mich. Ct. App. 1999).
8 In doing so, we note that our decision today is
consistent with Vanderwagen.

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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.

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