                   United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
___________

No. 98-1657
___________

Indiana Lumbermens Mutual Insurance     *
Company, an Indiana Corporation,        *
                                        *
              Appellee,                 *
                                        *
        v.                              *
                                        *
Timberland Pallet and Lumber Company, *
Inc., a Missouri Corporation; Justin C. *
Pliler; Frank Cockrum,                  *   Appeals from the United States
                                        *   District Court for the
              Defendants.               *   Western District of Missouri
                                        *
William Richard Chamberlain; Deanna     *
Sue Chamberlain; William Timothy        *
Chamberlain; Tabitha Gail Chamberlain; *
Tiffany Rene Chamberlain,               *
                                        *
              Appellants,               *
                                        *
Mariah Lewis,                           *
                                        *
              Defendant.                *

___________

No. 98-1931
___________

Indiana Lumbermens Mutual Insurance    *
Company, an Indiana Corporation,       *
                                         *
              Appellee,                  *
                                         *
       v.                                *
                                         *
Timberland Pallet and Lumber Company, *
Inc., a Missouri Corporation,            *
                                         *
              Appellant.                 *
                                         *
Justin C. Pliler; Frank Cockrum; William *
Richard Chamberlain; Deanna Sue          *
Chamberlain; William Timothy             *
Chamberlain; Tabitha Gail Chamberlain; *
Tiffany Rene Chamberlain; Mariah Lewis *
                                         *
              Defendants.                *
                                  ___________

                              Submitted: November 16, 1998

                                   Filed: October 28, 1999
                                    ___________

Before McMILLIAN, FLOYD R. GIBSON and HANSEN, Circuit Judges.
                           ___________

McMILLIAN, Circuit Judge.

        Timberland Pallet & Lumber Co. (Timberland) and William R. Chamberlain,
Deanna Chamberlain, William T. Chamberlain, Tabitha Chamberlain, and Tiffany
Chamberlain (the Chamberlains) appeal from a final order entered in the District Court1
for the Western District of Missouri in favor of Indiana Lumbermen’s Mutual Insurance

      1
        The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.

                                          -2-
Co. (Lumbermen’s or the insurer) in this declaratory judgment action. Indiana
Lumbermen’s Mutual Insurance Co. v. Timberland Pallet & Lumber Co., Case No.
97-3083-CV-S-4 (W.D. Mo. Feb. 19, 1998) (judgment entry). At issue was whether
Timberland was covered under a commercial general liability insurance policy issued
by Lumbermen’s for personal injury claims made against it by the Chamberlains. The
district court found there was no coverage because Timberland’s dump truck was not
“mobile equipment” as defined by the policy. For reversal, Timberland and the
Chamberlains (collectively appellants) argue the district court erred in declaring the
jury advisory after the jury returned its verdict. They also argue that there was
sufficient evidence to submit the case to the jury and that substantial evidence supports
the jury’s special findings of fact in their favor.

       For the reasons discussed below, we hold the district court erred in declaring the
jury advisory because the action was triable of right by a jury, but we hold the error
was harmless. We also hold the district court did not err in holding, as a matter of law,
that the dump truck was not mobile equipment and therefore excluded from coverage
under the policy. Accordingly, we affirm the judgment of the district court.

       The district court had diversity jurisdiction under 28 U.S.C. § 1332 over this
declaratory judgment action. Lumbermen’s is an Indiana corporation and its principal
place of business is located in Indiana; Timberland is a Missouri corporation and its
principal place of business is located in Missouri; the individual defendants were all
citizens and residents of Missouri. Appellants filed timely notices of appeal under Fed.
R. App. P. 4(a). We have appellate jurisdiction under 28 U.S.C. § 1291 over the final
decision of the district court.

       Most of the underlying facts are not in dispute. On July 19, 1993, a 1970
International dump truck owned by Timberland and driven by Timberland employee
Justin Pliler collided with the Chamberlains’ truck on a public highway (U.S. 160).
The Chamberlains were seriously injured.

                                          -3-
       Timberland manufactures hardwood pallets and lumber. This activity produces
sawdust which is disposed of as part of its business. Timberland bought the dump
truck in 1991. At the time of purchase the dump truck was licensed and titled. At the
time of the accident, however, it was not licensed. The dump truck was used to move
sawdust from one location to another on Timberland’s premises. It is self-propelled,
required little maintenance, was refueled on the premises (using gasoline cans), and
was rarely driven off the premises. On at least one other occasion, however, it had
been driven off the premises and on the public highways in order to deliver sawdust to
a farm located less than 10 miles away. (There was some dispute about the number of
times the dump truck had been driven off the premises in the previous year.) On the
day of the accident, another Timberland employee told Pliler to take the license plate
off another truck and put it on the dump truck for the trip to the farm. Pliler drove the
dump truck to the farm, delivered the sawdust and was returning to Timberland when
the accident occurred.

       The Chamberlains filed a lawsuit against Timberland in Missouri state court and
eventually obtained a default judgment in the amount of $3.2 million. Lumbermen’s
is Timberland’s commercial general liability insurer. Lumbermen’s refused to defend
Timberland in the state court action on the ground that the dump truck was not covered
under the policy because it was excluded from coverage under the auto exclusion. The
commercial general liability insurance policy provides $1 million coverage for each
occurrence. Timberland did not insure the dump truck under its automobile liability
insurance policies. Timberland subsequently assigned its rights against Lumbermen’s
to the Chamberlains.

      In February 1997 Lumbermen’s filed this declaratory judgment action against
Timberland and the Chamberlains in federal district court seeking a declaration that its
commercial general liability insurance policy did not provide coverage for the accident
and that it was not obligated to investigate, defend or pay any claim on behalf of
Timberland or its employee Pliler. The policy contains an exclusion for bodily injury

                                          -4-
or property damage arising out of the ownership, maintenance, use or entrustment to
others of any “auto” owned or operated by any insured. The policy provides that “use”
includes operation and “loading and unloading.” The policy defines “auto” as “a land
motor vehicle, trailer or semitrailer designed for travel on public roads, including any
attached machinery or equipment. But ‘auto’ does not include ‘mobile equipment.’”
The policy further defines “mobile equipment” in part as
       any of the following types of land vehicles, including any attached
       machinery or equipment:

             ....

             b. [v]ehicles maintained for use solely on or next to premises
             you (referring to the insured) own or rent;

             ....

             f. [v]ehicles not described in a. (referring to bulldozers, farm
             machinery, forklifts and other vehicles designed for use
             principally off public roads), b., c. (referring to vehicles that
             travel on crawler treads), or d. (referring to vehicles,
             whether self-propelled on not, maintained primarily to
             provide mobility to permanently mounted power cranes,
             shovels, loaders, diggers, or drills, or road construction or
             resurfacing equipment such as graders, scrapers or rollers)
             above maintained primarily for purposes other than the
             transportation of persons or cargo.


      The policy further provides that self-propelled vehicles with the following types
of permanently attached equipment are not “mobile equipment” but will be considered
“autos”: equipment designed primarily for snow removal, road maintenance but not
construction or resurfacing, and street cleaning, cherry pickers and similar devices
mounted on automobile or truck chassis and used to raise or lower workers, and air



                                           -5-
compressors, pumps and generators, including spraying, welding, building cleaning,
geophysical exploration, lighting and well servicing equipment.

       Timberland denied that the dump truck was an “auto” as defined by the policy.
The Chamberlains filed an answer and demanded a jury trial. In pre-trial orders, the
district court scheduled the case for jury trial but deferred ruling on whether the
Chamberlains were entitled to a jury trial. Lumbermen’s moved to strike the demand
for jury trial about a month before the trial was scheduled to begin. The Chamberlains
opposed the motion to strike. At the pre-trial conference the district court denied the
motion to strike the jury demand. The case was tried to a jury. The trial took two
days. The district court found that the terms of the policy were not ambiguous. (Trial
Transcript at 257.) The district court denied the motion of Lumbermen’s for directed
verdict at the close of the plaintiff’s case and also denied the parties’ motions for
directed verdict at the close of all the evidence.

       The district court submitted to the jury a special verdict consisting of three
interrogatories: (1) whether the dump truck was an “auto” as defined in the insurance
policy, (2) whether the dump truck was “mobile equipment” as defined in the insurance
policy, and (3) whether the dump truck was being operated within the scope and course
of employment at the time of the accident. The jury answered the first question “no”
and the second and third questions “yes,” finding that the policy did provide coverage
for the dump truck (because the dump truck was mobile equipment and thus not an
auto).

        The district court then dismissed the jury and announced that the issues
presented were questions of law for the court to decide and that the jury would be
advisory only. See Trial Transcript at 430-31 (Appellants’ Appendix at 266-67). The
district court had already found that the terms of the policy were not ambiguous. See
id. at 257 (during conference about objections to proposed instructions). The district
court found that the dump truck was not used solely on or adjacent to Timberland’s

                                          -6-
premises and that the primary use of the dump truck was for the transportation of
persons or cargo, specifically, the transportation of sawdust on the premises. See slip
op. at 1-2. The district court concluded that the dump truck was not a vehicle of the
type which constituted “mobile equipment” within the exception to the auto exclusion
in the policy. See id. at 2. In addition, the district court noted that, at the time of the
accident, the dump truck was “being operated as an ‘auto,’” off Timberland’s premises,
to transport persons and cargo to a destination several miles away from Timberland’s
premises, and that “[t]he risk created by this activity was clearly not contemplated for
coverage under the policy.” Id. (the district court also made oral findings from the
bench). The district court entered judgment in favor of Lumbermen’s and against
appellants. This appeal followed.

RULE 39(c) AND ADVISORY JURY

       Appellants first argue that the district court erred in declaring the jury advisory
only. Appellants argue that insurance liability is a legal issue, not an equitable one, and
that the Seventh Amendment guaranteed them a jury trial on that issue, even though the
case was brought as a declaratory judgment action. Alternatively, appellants argue
that, even if they were not entitled to a jury trial as a matter of right, the district court
abused its discretion under Fed. R. Civ. P. 39(c) by failing to provide them with
advance notice that the jury would be advisory only and by waiting until after the jury
returned its verdict before informing them of its intention to treat the jury as advisory
only. Appellants argue that the district court’s actions in effect improperly “vetoed”
the jury’s verdict.

       For the reasons discussed below, we hold the district court erred in declaring the
jury advisory because the action was triable of right by a jury, but we hold the error
was harmless.




                                            -7-
        The Seventh Amendment preserves “[i]n Suits at common law, . . . the right of
trial by jury.” U.S. Const. amend. VII. Fed. R. Civ. P. 38(a) preserves the right to trial
by jury. See also Fed. R. Civ. P. 57 (preserving right to trial by jury in declaratory
judgment action under circumstances and in manner provided in Rules 38 and 39).
Whether a party has a right to trial by jury in federal court is a question of law subject
to de novo review. See, e.g., Northgate Homes, Inc. v. City of Dayton, 126 F.3d 1095,
1098 (8th Cir. 1997). “Interpreting the Federal Rules of Civil Procedure [also] presents
a question of law subject to de novo review.” Burns v. Lawther, 53 F.3d 1237, 1240
(11th Cir. 1995) (per curiam).

        First, appellants were entitled to a jury trial as a matter of right. This action is
essentially a legal dispute for money damages, which, absent the procedure for
declaratory judgment, would have been tried at law by a court and a jury. See Johnson
v. Fidelity & Casualty Co., 238 F.2d 322, 324 (8th Cir. 1956) (declaratory judgment
action by insurer against insureds over coverage under insurance policy), citing Pacific
Indemnity Co. v. McDonald, 107 F.2d 446, 448 (9th Cir. 1939) (same). The right to
a jury trial in a civil case is not absolute and can be waived if the request for a jury trial
is not timely made. See Burns v. Lawther, 53 F.3d at 1240. “[B]ecause the right to a
jury trial is fundamental, ‘courts must indulge every reasonable presumption against
waiver.’” Id., citing LaMarca v. Turner, 995 F.2d 1526, 1544 (11th Cir. 1993), cert.
denied, 510 U.S. 1164 (1994). Here, appellants made a timely demand for a jury trial.
See Fed. R. Civ. P. 38(b) (Timberland filed its answer on Apr. 7, 1997; the
Chamberlains filed their answer, which included a demand for jury trial, within 10 days,
on Apr. 10, 1997).

       Because this action was one triable of right by a jury, the district court did not
have the power to declare the jury advisory only. Fed. R. Civ. P. 39(c) does not apply
to actions triable of right by a jury. See, e.g., Goodgame v. American Cast Iron Pipe
Co., 75 F.3d 1516, 1520 (11th Cir. 1996) (post-Landgraf jury-tried case); Thompson
v. Parkes, 963 F.2d 885, 888-89 (6th Cir. 1992) (where parties agreed and district court

                                             -8-
ordered matter would be tried as jury case, case must be treated as if right to jury trial
existed and district court could not treat jury verdict as advisory and, even if no right
to jury trial existed, it would be abuse of discretion to declare jury verdict advisory
after verdict is returned); Hildebrand v. Board of Trustees, 607 F.2d 705, 708-09, 711
(6th Cir. 1979) (holding district court could not declare jury advisory in action triable
of right by a jury and, even if no right to jury trial existed in case, it would be abuse of
discretion to declare jury advisory after both sides rested but before jury was
instructed); AMF Tuboscope, Inc. v. Cunningham, 352 F.2d 150, 153, 155 (10th Cir.
1965) (holding district court could not declare jury advisory in action triable of right by
a jury and, even if the district court had discretion to do so, it would be abuse of
discretion to declare, “on the eve of trial,” that case would be tried as nonjury case
where district court had approved parties’ stipulation to try case to jury). Under Rule
39(c), actions not triable of right by a jury may be tried with an advisory jury, upon
motion or of the district court’s own initiative, although the district court’s discretion
to declare a jury advisory is not unlimited. See Merex A.G. v. Fairchild Weston
Systems, Inc., 29 F.3d 821, 826-27 (2d Cir. 1994) (where only claim surviving in case
was not triable of right by a jury, district court did not abuse its discretion in declaring
jury advisory after plaintiff’s case-in-chief), cert. denied, 513 U.S. 1084 (1995); Bereda
v. Pickering Creek Industrial Park, Inc., 865 F.2d 49, 52-53 (3d Cir. 1989) (holding
that district court could not decide, after jury returned verdict, to treat jury verdict as
advisory on issue not triable of right by jury but which was tried by consent of parties
to non-advisory jury).

       We also note that, “although Rule 39(c) does not expressly require advance
notice to the parties of the court’s intention to treat the jury as advisory, we agree that
such notice is preferable.” Merex A.G. v. Fairchild Weston Systems, Inc., 29 F.3d at
827. “The parties are entitled to know prior to trial whether the jury or the court will
be the trier of fact.” Thompson v. Parkes, 963 F.2d at 889 (adopting a per se error rule
for failure to give advance notice). “Any good trial lawyer will testify that there are
significant tactical differences in presenting and arguing a case to a jury as opposed to

                                            -9-
a judge.” Hildebrand v. Board of Trustees, 607 F.2d at 710 (noting that converting a
jury trial to a bench trial in the middle of proceedings (more so at the end of trial as in
the present case) interferes with counsel’s presentation of their case and possibly
prejudices one side or the other and wastes additional time and expense inherent to jury
trial). However, we agree with the Second Circuit that failure to give advance notice
alone, absent some demonstrable prejudice to the complaining party, would not be a
basis for reversal. See Merex A.G. v. Fairchild Weston Systems, Inc., 29 F.3d at 827.
But cf. Alexander v. Gerhardt Enterprises, Inc., 40 F.3d 187, 192 n.2 (7th Cir. 1994)
(reviewing cases but refusing to adopt either per se error or demonstrable prejudice
approach).

       Having determined that the district court erred in declaring the jury advisory
only, the question remains what to do next. Ordinarily, we would direct that judgment
be entered based upon the jury verdict in order to give effect to that verdict. “[A] trial
court cannot disregard a jury’s verdict and substitute its own findings in deciding
claims; otherwise, the court could effectively subsume the jury’s function and deprive
litigants of their right to trial by jury.” Goodgame v. American Cast Iron Pipe Co., 75
F.3d at 1520. “The erroneous denial of a jury trial in a civil case is subject to harmless
error analysis.” Fuller v. City of Oakland, 47 F.3d 1522, 1533 (9th Cir. 1995). In
Thompson v. Parkes, the district court denied motions for directed verdict and, because
the district court did not announce its decision to treat the jury as advisory until after
the verdict, the case was tried by the parties as a jury case, and the jury deliberated and
decided the case as if it was the final arbiter of the dispute; under those circumstances,
the court of appeals concluded that it was appropriate to give effect that verdict. See
963 F.2d at 890; cf. Hildebrand v. Board of Trustees, 607 F.2d at 712 (jury informed
prior to deliberations that its verdict would be advisory only).

       However, that is not our case. Here, although the procedural sequence was the
same as in Thompson v. Parkes, the district court did not disregard the jury verdict and
substitute its own findings for those of the jury. Instead, the district court’s judgment

                                           -10-
entry makes clear that what the district court did was properly, albeit belatedly, decide
questions of law on the basis of undisputed facts. The interpretation of an insurance
policy presents a question of law for the court, not the jury, to decide. See, e.g.,
Diocese of Winona v. Interstate Fire & Casualty Co., 89 F.3d 1386, 1392 (8th Cir.
1996); Marren v. Mutual Life Insurance Co., 84 F.3d 1068, 1070 (8th Cir. 1996).
Although the district court should have recognized appellants’ right to a jury trial, the
district court correctly decided that it, and not the jury, was the decision-maker on the
issue of contract interpretation, even though it effected that decision by improperly
declaring the jury advisory. See, e.g., Alexander v. Gerhardt Enterprises, Inc., 40 F.3d
at 191-93 (holding court’s attempt to recognize actual jury verdict was improper in
wake of Landgraf but affirming judgment on basis of court’s own findings of fact and
conclusions of law); United States v. Williams, 441 F.2d 637, 645 (5th Cir. 1971)
(court should have recognized jury trial right but also should have declared directed
verdict; judgment affirmed because there was no issue for jury determination). For that
reason, it would not be appropriate to reinstate the jury verdict, and we hold the district
court’s declaring the jury advisory was harmless error.

CONTRACT INTERPRETATION

       As a preliminary matter, appellants argue that, because the action was triable of
right by a jury and the district court erred in declaring the jury advisory only, the
standard of review is whether the evidence was sufficient to submit the case to the jury.
Appellants also argue that substantial evidence supported the jury’s finding that the
dump truck was mobile equipment, and thus not excluded from coverage under the
policy, and that the district court’s finding to the contrary is clearly erroneous. On the
merits, appellants argue that the district court erred in holding that the terms of the
policy were not ambiguous. Appellants specifically argue that the phrase “maintained
for use” in subdivision (b) and the term “transportation” in subdivision (f) in the
definition of “mobile equipment” were ambiguous.


                                           -11-
       “Ordinarily, review of an erroneous denial of a jury demand arises following a
bench trial on the issues covered by the jury demand.” Fuller v. City of Oakland, 47
F.3d at 1533 (applying test for summary judgment or judgment as a matter of law).
“The denial will be harmless only if ‘no reasonable jury could have found for the losing
party, and the trial court could have granted a directed verdict for the prevailing
party.’” Id. (citation omitted). If this case were the typical erroneous denial of jury
demand case, then we would agree that the standard of review would be whether the
evidence was sufficient to submit the case to the jury or whether the issues could have
been disposed of on summary judgment or judgment as a matter of law. See id.;
Security Mutual Casualty Co. v. Affiliated FM Insurance Co., 471 F.2d 238, 245 (8th
Cir. 1972) (applying directed verdict or JNOV test of sufficiency of evidence to submit
case to jury); Shelter Mutual Insurance Co. v. Parrish, 659 S.W.2d 315, 317-20 (Mo.
Ct. App. 1983) (holding denial of jury trial was harmless because evidence was
insufficient to create issue of fact for submission to jury and insurer would have been
entitled to directed verdict). However, as discussed above, this is not such a case.
Here, although the district court should not have declared the jury to be advisory only,
there were no issues for the jury to determine because the only issues in the case were
questions of law for the court to determine.

       Nor is this an advisory jury case because, as discussed above, the district court
should not have declared the jury advisory only. In any event, even if the district court
had declared the jury to be advisory only, the standard of review of the district court
order is the same, with or without an advisory jury.

             The responsibility for the decision rendering process remains with
      the judge even though an advisory jury is used. The court must prepare
      the findings of fact and conclusions of law, and it is in its discretion
      wholly whether to accept or reject, in whole or in part, the verdict of the
      jury. There have been occasional suggestions that the findings of an
      advisory jury should be accepted if they are sustained by the evidence or
      if they clearly are not erroneous, but these expressions misconceive the

                                          -12-
      function of an advisory jury and the complete freedom the judge has in
      using or disregarding its findings. Review on appeal is of the findings of
      the court as if there had been no verdict from an advisory jury, and there
      can be no review of supposed errors relating to rulings before and
      instructions to the advisory jury.

9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 2d
§ 2335, at 211-13 (2d ed. 1995) (footnotes omitted); see Harris v. Secretary of United
States Dep’t of the Army, 119 F.3d 1313, 1320 (8th Cir. 1997) (court of appeals
reviews district court findings as if there had been no advisory jury); Security Mutual
Casualty Co. v. Affiliated FM Insurance Co., 471 F.2d at 245 (“If the jury findings had
been considered advisory only, . . . then the ‘clearly erroneous’ test would have been
the appropriate test to be applied to the court’s findings [of fact].”) (emphasis added).

       “Where the facts upon which liability is claimed or denied under an insurance
policy are undisputed and the existence or amount of liability depends solely upon a
construction of the policy, the question presented is one of law and this court reviews
the finding de novo.” Diocese of Winona v. Interstate Fire & Casualty Co., 89 F.3d
at 1392; see Marren v. Mutual Life Insurance Co., 84 F.3d at 1070; Koch Engineering
Co. v. Gibralter Casualty Co., 78 F.3d 1291, 1294 (8th Cir. 1996) (“The interpretation
of the contractual provisions of an insurance policy is a matter of law reviewed by this
court de novo.”). We apply Missouri law in this diversity action.

             If an insurance policy is unambiguous, it is to be enforced
      according to its terms, but if it is ambiguous, it is construed against the
      insurer. Whether or not the language of an insurance policy is ambiguous
      is a question of law. If the language of a policy is ambiguous (if there is
      duplicity, indistinctness or uncertainty in its meaning), and therefore open
      to different constructions, then it will be interpreted in the manner that
      would ordinarily be understood by the lay person who bought and paid for
      the policy. Additionally, exclusionary clauses of policies are strictly
      construed against the insurer, and if they are ambiguous they will be
      construed favorably to the insured.

                                          -13-
American States Insurance Co. v. Broeckelman, 957 S.W.2d 461, 465 (Mo. Ct. App.
1997), citing Rice v. Fire Insurance Exchange, 946 S.W.2d 40, 42 (Mo. Ct. App.
1997). However, “where language in an insurance contract is unequivocal, it is to be
given its plain meaning notwithstanding the fact that it appears in a restrictive provision
of a policy.” Harrison v. MFA Mutual Insurance Co., 607 S.W.2d 137, 142 (Mo.
1980) (en banc); see, e.g., Hartford Casualty Insurance Co. v. Budget Rent-A-Car of
Missouri, Inc., 864 S.W.2d 5, 6 (Mo. Ct. App. 1993) (auto exclusion in commercial
general liability policy found unambiguous); Shelter Mutual Insurance Co. v. Politte,
663 S.W.2d 777, 779 (Mo. Ct. App. 1983) (auto exclusion in homeowner’s insurance
policy); cf. Northland Insurance Cos. v. Russo, 929 S.W.2d 930, 934 (Mo. Ct. App.
1996) (holding two exclusions in commercial general liability policy were ambiguous
because coverage provided in one section was “taken away” in another section);
American States Insurance Co. v. Porterfield, 844 S.W.2d 13, 14-16 (Mo. Ct. App.
1992) (holding claim for injuries arising out of use of truck and not from negligent
supervision excluded from coverage by auto exclusion in commercial general liability
policy; no claim that language in policy was ambiguous or unclear).

      Contrary to appellants’ arguments, the facts upon which liability is claimed or
denied are not disputed. Compare Johnson v. Fidelity & Casualty Co., 238 F.2d at 323
(disputed factual issues as to ownership of car and whether or not car was furnished for
regular use to insured and his wife). Here, it was undisputed that the accident occurred
on a public highway and not on or next to Timberland’s premises. It was also
undisputed that the dump truck was used primarily to move sawdust from place to
place. We hold the policy is not ambiguous. First, we cannot agree that a reasonable
interpretation of the definition of “mobile equipment” in subdivision (b) as “vehicles
maintained for use solely on or next to premises you own or rent” would include use
on a public highway. The plain meaning of that definition restricts “use” to a certain
territory, that is, on or next to premises owned or rented by the insured. See Frontier
Insurance Co. v. Pinecrest Preparatory School, Inc., 658 So. 2d 601, 603 (Fla. Ct. App.
1995) (definition of “mobile equipment” as “vehicles maintained for use solely on or

                                           -14-
next to premises you own or rent” held ambiguous when applied to “vehicle” made of
truck rarely taken off premises and trailer never taken off premises; child fell off
trailer); Doty v. Safeco Insurance Co., 400 So. 2d 718, 723 (La. Ct. App. 1981)
(definition of “mobile equipment” as vehicles “maintained for use exclusively on
premises owned by or rented to the named insured” restricted “use” to a certain
territory).

       Nor can we agree that a reasonable interpretation of the term “maintained for
use” refers to the insured’s intended use of the vehicle, that is, that the dump truck is
mobile equipment because Timberland intended to use it solely on or next to its
premises. This argument would have more force had the definition omitted the words
“for use.” The court in Doty v. Safeco Insurance Co. found significant the omission
of the word “use” from a definition of “mobile equipment” as vehicles “designed or
maintained for the sole purpose of affording mobility” to certain types of equipment.
In that case, a pickup truck, which had welding equipment bolted to its bed used in
connection with a welding business, was involved in an accident while being driven by
the business owner’s son who was returning home from a dance hall. The commercial
general liability insurer argued that the truck was not designed or maintained for the
sole purpose of affording mobility to the welding equipment within the meaning of the
definition of “mobile equipment” and was therefore excluded from coverage under the
auto exclusion. The court differentiated “use” from “purpose” and concluded that
omission of the word “use” from the definition clearly indicated that personal use of the
truck was not relevant in determining whether the truck was mobile equipment, that is,
designed (structurally suited) or maintained (functionally suited) for the sole purpose
(not use) of affording mobility to the welding equipment. See 400 So. 2d at 723
(concluding the insured’s sole purpose (goal or aim) for maintaining the truck was to
provide mobility to the welding equipment even though the truck was also used for
personal transportation); see also Williams v. Galliano, 601 So. 2d 769, 774 (La. Ct.
App. 1992) (holding garbage truck was not mobile equipment under similar definition
because it was designed or maintained for sole purpose of providing mobility to certain

                                          -15-
equipment; truck also used to transport containers to and from dump, a function which
was not incidental or remote). In any event, the evidence showed that Timberland
neither maintained, that is, preserved or kept in repair, the dump truck for use nor
intended to use the dump truck solely on or next to its premises.

       We also cannot agree that a reasonable interpretation of the term
“transportation” in the definition of “mobile equipment” in subdivision (f) means
long-distance carriage only. The plain meaning of the term “transportation” is not
limited to carrying persons or cargo over long distances. Here, it was not disputed that
the dump truck was maintained primarily to move sawdust from one place to another
and thus was not “maintained primarily for purposes other than the transportation of
persons or cargo” within the definition of “mobile equipment” in subdivision (f).

       In sum, we hold the district court erred in declaring the jury advisory because the
action was triable of right by a jury, but we hold the error was harmless. We also hold
the district court did not err in holding, as a matter of law, that the dump truck was not
“mobile equipment” under the terms of the policy and thus was excluded from coverage
under the auto exclusion. Accordingly, we affirm the judgment of the district court.

HANSEN, Circuit Judge, concurring.

      I concur in the judgment.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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