                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           APR 26 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


WILLIAM TERRYBERRY,                              No. 14-17082

              Plaintiff-Appellant,               D.C. No. 2:13-cv-00658-GMN-
                                                 CWH
 v.

LIBERTY MUTUAL FIRE INSURANCE                    MEMORANDUM*
COMPANY,

              Defendant-Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                 Gloria M. Navarro, Chief District Judge, Presiding

                     Argued and Submitted February 15, 2017
                            San Francisco, California

Before: W. FLETCHER and RAWLINSON, Circuit Judges, and PRATT,**
District Judge.

      Plaintiff–Appellant William Terryberry was performing maintenance on a

road sign along a highway when an uninsured motorist struck the truck he drove to


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Robert W. Pratt, United States District Judge for the
Southern District of Iowa, sitting by designation.
the site. The truck was owned by his employer and insured by

Defendant–Appellee Liberty Mutual Fire Insurance Company (“Liberty Mutual”).

Terryberry was standing at least ten feet away from the truck when the crash

occurred, but the impact caused the truck to strike Terryberry, causing injuries.

      An endorsement to the insurance policy on the truck extended coverage for

damage caused by uninsured motorists to anyone “occupying” it when an accident

occurred. The endorsement further defined the term “occupying” to mean “in,

upon, getting in, on, out or off” a covered auto. The district court found Terryberry

was not “occupying” the truck when the accident occurred and granted summary

judgment to Liberty Mutual.

      “We review the district court’s decision to grant summary judgment de

novo.” Eichacker v. Paul Revere Life Ins. Co., 354 F.3d 1142, 1145 (9th Cir.

2004). Because this diversity case concerns the interpretation of an insurance

contract, our analysis is governed by Nevada insurance law. See id.

      Liberty Mutual argues summary judgment was appropriate because

Terryberry judicially admitted he was not “occupying” the truck when the accident

occurred when he expressly pleaded he was a “pedestrian” struck by an

“unoccupied vehicle.” But in opposing summary judgment before the district

court, Terryberry explained his use of the term “unoccupied” in the complaint was


                                          2
not intended to invoke the term of art defined in the policy endorsement. A

judicial admission that has been effectively retracted by a subsequent explanatory

statement no longer has any conclusive effect. See, e.g., Sicor Ltd. v. Cetus Corp.,

51 F.3d 848, 859–60 (9th Cir. 1995). Consequently, we decline to affirm the grant

of summary judgment on this basis.

      Turning to the policy language, under Nevada law, an unambiguous

provision in an insurance policy is to be interpreted and enforced according to the

plain and ordinary meaning of its terms. Century Sur. Co. v. Casino W., Inc., 329

P.3d 614, 616 (Nev. 2014). Absent a finding that an ambiguity exists when the

policy language is applied to the relevant facts, the reasonable expectations of the

insured (or those employed by the insured) provide no assistance to a claimant

seeking to establish that coverage under the policy exists. See Farmers Ins. Exch.

v. Young, 108 Nev. 328, 333 n.3, 832 P.2d 376, 379 n.3 (1992) (concluding the

reasonable expectations of the insured are to be considered “[o]nly when an

ambiguity exists”); see also Century Sur. Co., 329 P.3d at 616 (acknowledging an

ambiguity exists “when applying the policy to the facts leads to multiple

reasonable interpretations”).

      Application of the endorsement language to the undisputed facts makes clear

that no such ambiguity exists here. First, Terryberry was not “occupying” the


                                          3
covered vehicle when the accident occurred by virtue of his being “in” or “upon”

it. See Upon, Oxford English Dictionary Online,

http://www.oed.com/view/Entry/220029 (2017) (noting the preposition “upon” is

“regularly employed as a simple equivalent of on”). Terryberry was neither in nor

on the truck when the uninsured motorist’s vehicle crashed into it or when the

truck struck him.

      Additionally, though the punctuation in the definition is ambiguous, the

present participle of the word “get” plainly modifies each of the remaining

prepositions contained in the definition of “occupying.”1 In light of the ordinary

meaning of that term, the remainder of the definition extends coverage only to

individuals in the process of undertaking an affirmative act or movement in

relation to a covered auto. See Cook v. Aetna Ins. Co., 661 So.2d 1169, 1173 (Ala.

1995). But Terryberry was not undertaking the affirmative act of getting in or

getting on the truck, nor even approaching it, when the accident occurred. On the

contrary, Terryberry had nearly but not yet accomplished the first phase of his

work on the sign, upon completion of which he intended to return to the truck,

when the uninsured motorist crashed into the truck and caused it to strike him.



      1
        Notably, if the term “getting” did not modify the terms “out” and “off,” the
endorsement would extend coverage for damage caused by uninsured motorists
even to individuals having no apparent connection to a covered auto.
                                          4
Such a general intent to undertake an affirmative act in the future is plainly

insufficient for coverage under the endorsement.

      Finally, Terryberry contends the occupancy requirement applies differently

to employees using covered work vehicles; however, the cases he relies upon to

support that proposition are inapposite, as each explicitly accounts for

considerations extrinsic to the policy language at issue. See Argonaut Great Cent.

Ins. Co. v. Mitchell, 482 F. App’x 477, 478–80 (11th Cir. 2012) (per curiam);

Utica Mut. Ins. Co. v. Contrisciane, 504 Pa. 328, 334–35, 473 A.2d 1005, 1008–09

(1984). Under Nevada law, such considerations may be taken into account only

upon finding that the language of an insurance policy is ambiguous. See Century

Sur. Co., 329 P.3d at 616. However, application of the endorsement language to

the undisputed facts here yields only one reasonable conclusion: the endorsement

did not extend coverage under the policy to Terryberry at the moment the accident

occurred.

      AFFIRMED.




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