               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0645n.06

                                       Case No. 16-5265
                                                                                     FILED
                          UNITED STATES COURT OF APPEALS                        Dec 02, 2016
                               FOR THE SIXTH CIRCUIT                        DEBORAH S. HUNT, Clerk


JAMES GOSS,                                        )
                                                   )
       Plaintiff-Appellant,                        )
                                                   )       ON APPEAL FROM THE UNITED
v.                                                 )       STATES DISTRICT COURT FOR
                                                   )       THE WESTERN DISTRICT OF
SUSAN TATE GREEN; JEFFREY GREEN,                   )       TENNESSEE
                                                   )
       Defendants,                                 )
                                                   )
and                                                )
                                                   )
ALLSTATE INSURANCE COMPANY,                        )
                                                   )
       Defendant-Appellee.                         )


       BEFORE: MOORE, SUTTON, and WHITE, Circuit Judges.

       SUTTON, Circuit Judge. When James Goss got into an accident while driving his

employer’s truck, he thought he was covered by Allstate Insurance Company, his personal

insurance carrier. He was not, as the exclusionary clause in the insurance contract made clear.

Because Goss’s employer furnished the truck for Goss’s regular use and because his uninsured

motorist coverage contained an exclusion for just this possibility, Goss did not have coverage for

the accident under the terms of the policy. We therefore affirm the district court’s grant of

summary judgment to Allstate.
Case No. 16-5265
Goss v. Green
       On March 3, 2008, Susan Tate Green crashed her car, and a tire from the vehicle flew off

and hit the windshield of a truck driven by Goss. Goss and Allstate agree that, “[a]t the time of

the accident, James Goss was operating an eighteen wheel vehicle owned by Bigbee

Transportation.” R. 42-2 at 1. Goss drove that truck “ninety (90) percent of the time in which he

was performing his work for Bigbee Transportation.” Id. at 1–2; R. 50-2 at 1. He “worked every

day of the week and had made the particular route on which the accident occurred more than one

hundred times.” R. 42-2 at 2; R. 50-2 at 2.

       After the accident, Goss sued Susan Tate Green and her husband for medical expenses,

lost wages, and other injuries.      Goss also sued Allstate, claiming that Allstate was his

“underinsured insurance provider” and thus was “contractually obligated to pay any damages

which exceed the Defendants’ amount of insurance coverage.” R. 3 at 3. Allstate moved for

summary judgment because the insurance policy excluded coverage for “any damages

. . . because of . . . bodily injury or property damage while in, on, getting into or out of, getting

on or off, or when struck by a vehicle owned by or furnished or available for the regular use of,

[the insured] or a resident which is not insured for this coverage.” R. 42-5 at 36 (emphases

omitted). Bigbee’s truck was not one of the covered vehicles listed in the insurance policy,

prompting the district court to grant summary judgment to Allstate. In the district court, the

parties joined issue over the “which is not insured for this coverage” language of the exclusion.

Allstate contended that it refers to coverage under the policy, and Goss argued that the language

is not so limited. Goss has abandoned any such argument, having conceded that there was no

coverage under his employer’s policy.

       Goss appealed—or at least tried to. We ruled that the grant of summary judgment was “a

non-final and non-appealable order” because “the claim against the Greens remain[ed] pending.”



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Case No. 16-5265
Goss v. Green
Goss v. Green, No. 15-5533, at 2 (6th Cir. Sept. 29, 2015) (order). On January 11, 2016, after

Goss settled with the Greens, the district court dismissed the case and entered final judgment. At

that point, Goss appealed again—this time properly so.

       The parties agree that Tennessee choice-of-law principles apply. See Klaxon Co. v.

Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Under the law of the Volunteer State, “a

contract is presumed to be governed by the law of the jurisdiction in which it was executed

absent a contrary intent.” Williams v. Smith, 465 S.W.3d 150, 153 (Tenn. Ct. App. 2014)

(quotation omitted). For insurance policies, this means that we apply the law of the jurisdiction

where the policy was “made and delivered.” Ohio Cas. Ins. Co. v. Travelers Indem. Co.,

493 S.W.2d 465, 467 (Tenn. 1973).        Allstate issued and delivered the policy to Goss in

Mississippi. Even though the accident occurred in Tennessee, we therefore apply Mississippi

law.

       The appeal hinges on whether the exclusionary clause “can be logically interpreted in two

or more ways, where one logical interpretation provides for coverage.” U.S. Fid. & Guar. Co. of

Miss. v. Martin, 998 So. 2d 956, 963 (Miss. 2008). Under Mississippi law, “insurance policies

which are clear and unambiguous are to be enforced according to their terms as written.”

Sessoms v. Allstate Ins. Co., 634 So. 2d 516, 519 (Miss. 1993). Otherwise, “[e]xclusions and

limitations on coverage are . . . construed in favor of the insured. Language in exclusionary

clauses must be ‘clear and unmistakable,’ as those clauses are strictly interpreted. Nevertheless,

a court must refrain from altering or changing a policy where terms are unambiguous, despite

resulting hardship on the insured.” Martin, 998 So. 2d at 963 (quotations omitted).

       The problem for Goss is that this exclusionary clause is unambiguous. It excludes

coverage for this accident because Bigbee’s truck was “furnished . . . for the regular use of”



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Case No. 16-5265
Goss v. Green
Goss.   R. 42-5 at 36.      The Mississippi Supreme Court has previously interpreted similar

exclusionary clauses in the same way, Miss. Farm Bureau Mut. Ins. Co. v. Jones, 754 So. 2d

1203 (Miss. 2000); Moore v. State Farm Mut. Auto. Ins. Co., 121 So. 2d 125 (Miss. 1960),

precluding this clause from being fairly “interpreted in two or more ways,” Martin, 998 So. 2d at

963.

        Moore offers a good example.        The insured’s personal insurance policy excluded

coverage for injuries “while occupying an automobile owned by or furnished for the regular use

of . . . the named insured.” 121 So. 2d at 126 (emphasis added). The insured was injured while

driving one of the ten trucks he drove “for his employer two or three times a week.” Id. The

court interpreted the exclusionary clause to mean that coverage extended only “to casual or

infrequent occupancy of other automobiles than the one named in the policy.” Id. And “[t]wo or

three trips a week,” the Mississippi Supreme Court concluded, amounted to “regular use,” not

“casual” use. Id. at 127.

        Decades later, Jones used a similar approach, this time concluding that the exclusionary

clause did not apply. The insured was in an accident while driving a bus owned by the gospel

choir ministry he belonged to, and the driver of the other vehicle was killed. Jones, 754 So. 2d at

1203–04. The insured sought to have his personal insurance carrier indemnify and defend him in

the resulting wrongful death action. Id. at 1204. The relevant clause in the insured’s policy

excluded coverage for automobiles “furnished for the regular use to . . . the named insured.” Id.

(emphasis omitted). Looking at the totality of the circumstances, the Mississippi Supreme Court

found three questions relevant in applying the exclusionary clause: Was the insured “paid for his

[driving] services”? Id. at 1205. How “frequently” did the insured drive the vehicle? Id. And

did the insured just “happen[] to be one of the persons” driving the vehicle, or was “the



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Case No. 16-5265
Goss v. Green
vehicle . . . in question . . . obtained for [his particular] use”? Id. The answers to all three

questions favored coverage in Jones. The insured “was never paid for his services, and he drove

much less frequently.” Id. All told, he had driven the bus for the gospel choir ministry “only six

or seven times.” Id. at 1206 (Mills, J., dissenting). And the vehicle “in question was obtained

for the use of the ministry. Jones just happened to be one of the persons with the ministry who

drove.” Id. at 1205 (majority).

       Measured by Jones and Moore, Goss’s insurance policy excluded coverage for his

injuries in this accident. As in Moore, but unlike in Jones, Bigbee paid Goss to drive the truck.

Goss frequently drove Bigbee’s trucks during the years he had worked for the company. In fact,

he drove the trucks “every day of the week,” R. 50-2 at 2, and claims to have driven the route

“[w]ay over a hundred times,” R. 43-1 at 72. And Bigbee provided Goss with the truck, which

he drove “ninety percent of the time,” id. at 76, along with the preloaded trailer for “[his] weekly

run,” id. at 36. Indeed, Goss himself acknowledged during his deposition that he “had the

regular use of a Bigbee truck and trailer.” Id. at 76. All of this leads to the conclusion that the

exclusion applies.

       Goss tries to fend off this conclusion with several arguments, each unpersuasive. He first

emphasizes that the exclusionary clause differs from the policies in Moore and Jones because his

“policy adds the additional term ‘available.’” Appellant’s Br. 13. In context, here is what the

policy says: “Allstate will not pay any damages . . . because of . . . bodily injury or property

damage while in, on, getting into or out of, getting on or off, or when struck by a vehicle owned

by or furnished or available for the regular use of, [the insured] or a resident which is not insured

for this coverage.” R. 42-5 at 36 (emphases omitted and added). As the italicized language

makes clear, Goss overlooks the reality that the policy adds an “or” before “available.” “[A]nd



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Case No. 16-5265
Goss v. Green
combines items while or creates alternatives.” Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts 116 (2012); see OfficeMax, Inc. v. United States,

428 F.3d 583, 588–89 (6th Cir. 2005). In Moore, the insurance company did not have to prove

that the truck was both owned by and furnished for the regular use of the insured. 121 So. 2d at

126–27. It is enough, in this case, that Bigbee furnished the truck for Goss’s regular use because

the policy excludes coverage for injuries while driving a vehicle “furnished or available for the

regular use of” Goss. R. 42-5 at 36 (emphasis added).

       Goss next points to the excess-compensation provision in the insurance policy.                 It

clarifies that, “[i]f the insured person was in . . . a vehicle you do not own which is insured for

this coverage under another policy, . . . this coverage will be in excess. This means that, when

the insured person is legally entitled to recover damages in excess of the other policy limit, we

will pay up to your policy limit, but only after the other insurance has been exhausted.” R. 42-5

at 37–38. By its terms, this provision applies only when Goss would already have coverage

under the Allstate policy.    And contrary to Goss’s assertion, separately receiving workers’

compensation for his injuries does not automatically entitle Goss to uninsured motorist coverage

under his Allstate policy.

       Goss, last of all, criticizes the refusal of the district court to consider parol evidence in its

decision. For purposes of summary judgment, Allstate acknowledged that one of its agents told

Goss and his wife when they purchased the insurance policy that the “uninsured motorist

coverage would cover [Goss] when he was driving a truck as part of his occupation.” R. 51-1 at

1. But Goss does not argue estoppel; rather, he offered this evidence to support his interpretation

of the policy and to create an ambiguity. The court was correct to focus on the four corners of

the insurance policy.    “Parol evidence as to surrounding circumstances and intent,” under



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Case No. 16-5265
Goss v. Green
Mississippi law, “may be brought in where the contract is ambiguous, but where, as here, the

contract was found to be unambiguous it has no place.” Cherry v. Anthony, Gibbs, Sage, 501 So.

2d 416, 419 (Miss. 1987). Because the insurance policy remains unambiguous, Goss is “bound

by the language of the instrument.” Id.; see also Turner v. Terry, 799 So. 2d 25, 32 (Miss.

2001).

         For these reasons, we affirm.




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