                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT
                                                                          February 1, 2012

                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
VAN L. HALE,

             Plaintiff – Appellant,
                                                             No. 10-8095
v.                                                   (D.C. No. 2:09-CV-245-NDF )
                                                              (D. Wyo.)
ALLIED INSURANCE; NATIONWIDE
INSURANCE; and JOHN DOES 1-3,

             Defendants - Appellees.



                             ORDER AND JUDGMENT*


Before O'BRIEN, Circuit Judge, GILMAN, Senior Circuit Judge, and HOLMES,
Circuit Judge.†


                                  I. BACKGROUND

      Van L. Hale, a Wyoming resident, was severely injured in an all-terrain vehicle



      *
         This order and judgment is an unpublished decision, not binding precedent. 10th
Cir. R. 32.1(A). Citation to unpublished decisions is not prohibited. Fed. R. App. 32.1.
It is appropriate as it relates to law of the case, issue preclusion and claim preclusion.
Unpublished decisions may also be cited for their persuasive value. 10th Cir. R. 32.1(A).
Citation to an order and judgment must be accompanied by an appropriate parenthetical
notation B (unpublished). Id.
      †
       Honorable Ronald Lee Gilman, Senior Circuit Judge, United States Court of
Appeals for the Sixth Circuit, sitting by designation.
(ATV) accident on March 28, 2009. The accident occurred when Hale and his family

were riding ATVs on the “Fins and Things” trail in the Sand Flats Recreation Area near

Moab, Utah. The Fins and Things trail is on land owned by the federal government and

managed by the Bureau of Land Management (BLM). While on this trail, Hale’s group

reached a steep (nearly vertical) “slick rock” embankment appearing to be five or six feet

high. One rider in his group was having difficulty getting his ATV to scale the

embankment. Hale assisted by sitting on the front rack of the ATV, thereby serving as a

counterweight to keep it from overturning. As the ATV ascended the embankment, it

either suddenly gained traction or the driver accidently accelerated. This sudden

movement ejected Hale from his perch on the ATV. Without him as a counterweight, the

ATV flipped and landed on him at the bottom of the embankment. He suffered serious

injuries as a result.

       At the time of the accident, the ATV was not registered in either Utah or

Wyoming and was not covered by a liability policy. But Hale had a motor vehicle

insurance policy from Nationwide1 for his four automobiles. The policy included

uninsured motorist and medical payments coverage. However, uninsured motorist

coverage excluded accidents involving “any vehicle or equipment . . . [d]esigned mainly

for use off public roads while not upon public roads.” (Aplt. App. at 93.) The policy did

not include a definition for “road.” Reasoning the ATV was designed for off-road use

and the trail was not a public road, Nationwide denied Hale’s claim.

       1
      Nationwide Mutual Insurance Company owns Allied Mutual Insurance
Company. Since they refer to themselves collectively as Nationwide, we do as well.


                                            2
       Hale filed a complaint against Nationwide in the U.S. District Court for the

District of Wyoming. The district court agreed with Nationwide’s rationale for denying

Hale’s claim and, upon its motion, entered summary judgment in Nationwide’s favor.

Hale appeals.

                                       II. DISCUSSION

       In contending the district court erred, Hale makes two arguments as to why he was

entitled to benefits under his policy. First, the accident occurred on a public road.

Second, even if the accident did not occur on a public road, he is entitled to compensation

under Wyoming law governing uninsured-motorist coverage. We conclude the accident

did not occur on a public road and decline to consider Hale’s second argument.

       We review a summary judgment de novo. Cooperman v. David, 214 F.3d 1162,

1164 (10th Cir. 2000). A moving party is entitled to summary judgment when “there is

no genuine dispute as to any material fact” and the undisputed facts entitle the party to

judgment as a matter of law. Fed. R. Civ. P. 56(a). “An issue is ‘genuine’ if there is

sufficient evidence on each side so that a rational trier of fact could resolve the issue

either way” and an issue “is ‘material’ if under the substantive law it is essential to the

proper disposition of the claim.” Thom v. Bristol–Myers Squibb Co., 353 F.3d 848, 851

(10th Cir. 2003). We view the evidence and draw reasonable inferences in the light most

favorable to the nonmoving party. Id.

       Because this is a diversity case, we apply the substantive law of the forum state,




                                              3
Wyoming.2 See Cooperman, 214 F.3d at 1164. We “must ascertain and apply

[Wyoming] law to reach the result the Wyoming Supreme Court would reach if faced

with the same question.” Id. Under Wyoming law, our main aim is to effect the

intentions of the parties, as expressed in the language employed in their policy. See

Aaron v. State Farm Mut. Auto. Ins. Co., 34 P.3d 929, 933 (Wyo. 2001). We give the

words of the policy “their common and ordinary meaning.” Id. “The parties have the

right to employ whatever lawful terms they wish and courts will not rewrite them.” Id.

   A. The Insurance Contract

       Even though Hale’s policy does not define “public road,” it nevertheless

distinguishes between public roads and terrain suitable only for specially designed

vehicles. The policy’s language excludes coverage for accidents involving vehicles

“designed mainly for use off public roads while not upon public roads.” (Aplt. App. 93.)

Necessarily excluded from the category of “public roads” are many of the paths and trails

for which ATVs are especially suited, by design3 and, in this case, use.

       The “Fins and Things” trail, which Nationwide aptly describes as an “obstacle

course,” is just such a place.4 It is steep, slick, and dangerous — barely passable, even for


       2
       The district court applied Wyoming law in its analysis of Nationwide’s motion
for summary judgment. Neither party quarrels with that decision.
       3
           Hale acknowledges an ATV is designed for use off of public roads.
       4
        The BLM does not call the area a road. Rather, the BLM’s Visitor Guide, which
shows both roads and trails, calls the trail where Hale was injured the “Fins and Things
4x4 Trail.” (Aplt. App. 107, 121.) Likewise, the Grand County Sherriff’s Office
described “Fins and Things” as a “4X4 trail” in its incident report. (Aplt. App. 141-42).
Yet the name of the trail is not dispositive on its own, because, as Hale points out, a trail

                                              4
vehicles, like ATVs, designed for off-road use. The Sand Flats Recreation Area visitor’s

guide calls the trail “hazardous” and recommends it “only for experienced drivers.”

(Aplt. App. 114, 121.) Another document in the record describes the trail as nearly

impassable:

        Most of the trail is slick rock but there is some loose deep sand. One steep
        sand hill near the beginning of the trail will give some vehicles problems if
        it is very dry. There are several steep ups and downs on slick rock that give
        definition to the “daring” mentioned in the description of the 3 1/2 trail
        rating this trail carries. Frenchie’s Fin and Ken’s Climb are about as steep
        as can be done. Drivers with near stock vehicles and little experience are
        well advised to take the bypass at Ken’s Climb.

(Aplt. App. 180.) Yet another document confirms the treacherous conditions present on

the trail:

        A giant sandstone roller coaster with perfect traction, enabling incredibly
        steep climbs and descents. Absolutely beautiful area. Extremely steep
        climbs and descents over tire-blackened slickrock. Assistance may be
        needed at steepest points. For advanced riders only. Make sure you wear a
        helmet. Easy to get lost.

(Aplt. App. 184.) Of record is a photograph showing the ATV attempting to scale the

embankment, dramatically illustrating the rigors of the “trail.” (The photograph is

reproduced in the appendix and can be viewed at http://www.ca10.uscourts.gov/

opiniondata/10-8095-1.jpg.) To ascend the embankment, the nearly vertical ATV

requires the aid of one person at the front and another behind. Accentuating the obvious,

the Grand County Sherriff’s Office’s incident report noted that ATVs struggle to climb

the embankment. Because the trail is barely passable even for vehicles “designed mainly



could be viewed as a kind of road.


                                              5
for use off public roads,” it is not a public road. It is, indeed, an obstacle course.5

   B. Wyoming Law

       According to Hale, even if his policy does not explicitly cover his accident,

Wyoming law requires insurers providing uninsured-motorist coverage to cover accidents

involving uninsured ATVs. In his view, uninsured-motor vehicle coverage is a statutory

requirement, see Wyo. Stat. Ann. § 31-10-101, and the state’s motor vehicle code

explicitly includes “off-road recreational vehicle” in its definition of a “motor vehicle.”

Wyo. Stat. Ann. § 31-1-101(a)(xv)(K). Therefore, Hale concludes, all Wyoming motor

vehicle policies which include uninsured motor vehicle coverage must cover accidents

involving “off-road recreational vehicles” such as the ATV that landed on him.

       Because Hale did not make this argument to the district court, we decline to

consider it. See Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1143 (10th Cir. 2009)

(declining to consider issue presented for first time on appeal).

       AFFIRMED.

                                            Entered by the Court:

                                            Terrence L. O’Brien
                                            United States Circuit Judge



       5
         Because the insurance policy can be understood only as excluding the “Fins and
Things” trail from the category of public roads, definitions of “public road” from
extrinsic sources are not necessary for our analysis. See Aaron, 34 P.3d at 933 (“The
intention of the parties is the primary consideration and is to be ascertained, if possible,
from the language employed in the policy . . . .”). There well may be trails that are
indistinguishable from roads. As this “trail” is clearly not one of them, we need not
ponder the imponderable.


                                               6
                                     APPENDIX

      The following photograph depicts the embankment where the accident occurred.

(Appellee App’x 1.) (http://www.ca10.uscourts.gov/opiniondata/10-8095-1.jpg)




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