                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                               OCT 18 1999
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 WEST AMERICAN INSURANCE
 COMPANY, an Ohio Corporation,

               Plaintiff - Appellee,
                                                            No. 98-4146
          v.                                         (D. Ct. No. 97-CV-190-B)
                                                             (D. Utah.)
 CLARK LAMB, an individual doing
 business as Clark Lamb & Sons;
 ALEX LAMB, an individual, and
 BRIAN LAMB, an individual,

               Defendants - Appellants.


                            ORDER AND JUDGMENT *


Before TACHA, HOLLOWAY and BALDOCK, Circuit Judges.


      Plaintiff West American Insurance Company originally brought this action

seeking a declaratory judgment that it had no duty to defend or indemnify the

defendants for claims arising out of a traffic accident. The district court granted

plaintiff’s motion for summary judgment and dismissed defendants’counterclaims

with prejudice. Defendants filed a timely appeal of this decision. We exercise


      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                   Background

      In June of 1992, West American issued a commercial liability policy to

Clark Lamb and Clark Lamb & Sons. At the time the policy was issued, the

Lambs owned and operated both an excavation business and a farming and

ranching operation. Under the express terms of the policy, West American

provided coverage for claims arising out of the use of any “mobile equipment”

but excluded coverage for claims involving the use of any “auto.”

      On June 2, 1993, defendant Alex Lamb was involved in a traffic accident

while driving a pickup truck on Highway 89 near Hatch, Utah. As Lamb

approached the Garfield Information Center, he collided with the rear end of a

1993 Oldsmobile and injured its four passengers. While the truck was registered

with the state of Utah and insured under a separate automobile policy, the Lambs

used the truck exclusively for work on their farming and ranching operation. The

truck, a 1976 3/4 ton GMC model, was equipped with heavy-duty frame and

brakes and was modified with a fifth-wheel trailer hitch to better tow horse and

livestock trailers. At the time of the accident, Lamb was transporting cattle by

trailer between summer and winter range.

       After the injured passengers filed claims against the Lambs, the Lambs

requested defense and indemnification under the West American policy. West


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American has refused coverage, relying on the “auto” exception and the definition

of “mobile equipment” in the policy. The question before this court is whether

this refusal of coverage was justified under the plain meaning of the contract. We

find that it was.

                                     Discussion

                                          I.

       We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court. Byers v. City of

Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998). Summary judgment is

appropriate “if 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 and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). When applying this

standard, we view the evidence and draw reasonable inferences therefrom in the

light most favorable to the nonmoving party. Byers, 150 F.3d at 1274.

       The material facts of this case are not in dispute. The parties admit that the

insurance policy was in effect at the time of the accident. The parties agree on

the farming/ranching context of the accident and the specifications of the Lamb

truck involved therein. Finally, the parties agree that the Lamb truck, while

registered with the state of Utah as a “farm truck,” regularly operated on the


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freeways, highways and public roads of Utah and Arizona.



                                        II.

      “The interpretation of an insurance contract is governed by state law and,

sitting in diversity, we look to the law of the forum state.” Houston Gen. Ins. Co.

v. American Fence Co., 115 F.3d 805, 806 (10th Cir.1997). The Utah Supreme

Court has explained that “the terms of insurance contracts, as well as all

contracts, are to be interpreted in accordance with their usually accepted

meanings and should be read as a whole, in an attempt to harmonize and give

effect to all of the contract provisions.” Nielsen v. O’Reilly, 848 P.2d 664, 665

(Utah 1992). Ambiguities in the policy, if any, are resolved in favor of coverage.

Id. at 666. Policy language is ambiguous when it is not “plain to a person of

ordinary intelligence and understanding, viewing the matter fairly and reasonably,

in accordance with the usual and natural meaning of the words, and in the light of

existing circumstances, including the purpose of the policy.” LDS Hosp. v.

Capitol Life Ins. Co., 765 P.2d 857, 858-59 (Utah 1988) (quoting Auto Lease Co.

v. Central Mut. Ins., 325 P.2d 264, 266 (Utah 1958)).

      The West American policy excludes from coverage “bodily injury” or

“property damage” involving any “auto,” which is defined as follows:

      “Auto” means a land motor vehicle, trailer or semitrailer designed for travel
      on public roads including any attached machinery or equipment. But “auto”

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       does not include “mobile equipment.”

Ins. Policy at 2, 9.

       The Lambs’ pickup truck was not only “designed for travel on public

roads” but actually put to such use. At the time of the accident, Alex Lamb was

hauling cattle on a public road, and appellants readily admit that the truck

regularly operated on the freeways and highways of Utah and Arizona. The GMC

truck plainly qualifies as an “auto” and is therefore expressly excluded from

coverage under the policy.

       While the auto exclusion does preserve claims arising from the use of

“mobile equipment,” the Lambs’ truck does not qualify as such. The policy

defines mobile equipment to include “the following types of land vehicles,

including any attached machinery or equipment:

       a. Bulldozers, farm machinery, forklifts and other vehicles designed for use
       principally off public roads . . . .


Id. at 10-11.

       Appellants’ effort to classify the truck as “farm machinery” strains reason.

Appellants rely heavily on Utah Farm Bureau Mut. Ins. Co. v. Orville Andrews &

Sons, 665 P.2d 1308 (Utah 1983). In this case, a truck involved in a highway

accident was classified as a “farm implement” and therefore not excluded under

an automobile exception to the farm liability policy. However, the truck in Farm


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Bureau, retrofitted with a feeder box, “was modified . . . so that it could be used

for the sole purpose of feeding . . . cattle.” Farm Bureau, 665 P.2d at 1310. In

classifying the feeder truck as a farm implement, the court distinguished it from

“two other trucks which were registered, licensed and were regularly used to haul

grain and livestock to market on public highways.” Id. at 1309. These trucks

were listed separately on the vehicle schedule of the automobile policy.

      Farm Bureau provides no support for classifying the Lambs’ truck as farm

machinery. The Lambs’ truck, like the other trucks in Farm Bureau, was

registered and insured under an automobile policy and was regularly used on

public roads in Utah and Arizona. Heavy-duty features and a trailer hitch do not

transform a truck into farm machinery.

      Because we find no ambiguity in the relevant policy provisions, the

insurance contract must be enforced according to its plain terms. Therefore, the

district court’s order granting summary judgment is AFFIRMED.



                                        ENTERED FOR THE COURT,


                                        Deanell Reece Tacha
                                        Circuit Judge




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