                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          DEC 23 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    GREG VANDERWAGEN;
    DEBORAH (VANDERWAGEN)
    LUCAS, formerly known as Deborah
    Slaughter,

                Plaintiffs-Appellants,

    v.                                                   No. 98-2279
                                                  (D.C. No. CIV-98-20-LCS)
    J.C. PENNEY LIFE INSURANCE                            (D. N.M.)
    COMPANY, a foreign Insurance
    Company,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before BALDOCK , PORFILIO , and BRORBY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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.
of this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Plaintiffs Greg Vanderwagen and Deborah (Vanderwagen) Lucas appeal

from the district court’s grant of summary judgment in favor of defendant

J.C. Penney Life Insurance Company on their claim for insurance coverage

relating to the death of their father.   1
                                             Reviewing the district court’s decision

de novo, see Anderson v. Coors Brewing Co.            , 181 F.3d 1171, 1175 (10th Cir.

1999), we affirm.

       Plaintiffs are the beneficiaries on two life insurance policies issued by

defendant covering their father, who was killed while operating a bulldozer on

private land. Plaintiffs sought coverage for his death under the provision of the

policies covering death in “land motor vehicle” accidents. Defendant denied

coverage under this provision, on the basis that a bulldozer was not a “land motor

vehicle,” and paid them the benefits due under the policies for death resulting

from accidents not involving land motor vehicles or common carriers. The

difference in benefits between the two provisions of the policies is $120,000.

Plaintiffs brought this action to recover that difference.




1
      The parties consented to proceed before a magistrate judge pursuant to
28 U.S.C. § 636(c)(1).

                                                -2-
       The dispute centers on whether a bulldozer falls within the policies’

description of what a “land motor vehicle” is. As the case has been presented,

there are two critical aspects to this description. Both policies state that a land

motor vehicle “includes any gasoline, diesel, or similarly powered vehicle

customarily used for transportation on land      .” Appellants’ App. at 64, 80

(emphasis added). The descriptions further provide for a licensing requirement,

with the above phrase followed in one policy by “and for which the operator is

normally licensed,” id. at 64, and in the other by “and for which the operator is

required by law to be licensed,”   id. at 80. The policies further provide that they

are to be interpreted in accordance with Illinois law. Under Illinois law,

       [t]he construction of an insurance policy’s provisions is a question of
       law. . . . If the words in the policy are unambiguous, a court must
       afford them their plain, ordinary, and popular meaning. However, if
       the words in the policy are susceptible to more than one reasonable
       interpretation, they are ambiguous and will be construed in favor of
       the insured and against the insurer who drafted the policy.

Outboard Marine Corp. v. Liberty Mut. Ins. Co.      , 607 N.E.2d 1204, 1212

(Ill. 1992) (citations omitted).

       In determining that a bulldozer did not fall within the policies’ description

of a “land motor vehicle,” the district court first held that the phrase “customarily

used for transportation” is not ambiguous and that a bulldozer is not customarily

used for transportation. The court further held that, even assuming that phrase

were ambiguous, plaintiffs had stipulated that no special license was required to

                                           -3-
operate a bulldozer. Therefore, the bulldozer did not satisfy the one policy’s

requirement that the operator be licensed. Turning to the other policy, the court

rejected plaintiffs’ argument that because bulldozer operators “normally” have

regular driver’s licenses, the bulldozer fell within the licensing requirement.

It found that this interpretation was not “equally plausible” to defendant’s

interpretation, which was that “normally licensed” meant licensed to engage in

that specific activity, i.e., bulldozer operating. It therefore concluded that

defendant’s interpretation controlled.

       On appeal, plaintiffs contend that a bulldozer clearly falls within the

policies’ description of a land motor vehicle, and alternatively, that the

description is ambiguous and should be construed in their favor to provide

coverage. They further contend that the court applied the wrong standard for

determining whether an insurance policy term is ambiguous, arguing that the

correct standard is whether the term is “susceptible of differing reasonable

interpretations.” Appellants’ Br. at 24 (citing    Outboard Marine , 607 N.E.2d

at 1212).

       We have fully considered plaintiffs’ arguments and reviewed the record,

and we find their arguments unpersuasive. Even assuming the district court

applied the wrong standard for determining ambiguity, we see no reversible error

because the description of land motor vehicles is not reasonably susceptible to an


                                             -4-
interpretation that would provide coverage. Therefore, for substantially the same

reasons as stated by the district court in its September 15, 1998 memorandum

opinion and order, we affirm its grant of summary judgment in favor of

defendant.

      AFFIRMED.



                                                   Entered for the Court



                                                   John C. Porfilio
                                                   Senior Circuit Judge




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