                                                                              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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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