                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 2, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    TIM KREHBIEL;
    GERILYN KREHBIEL,

                Plaintiffs-Appellants,

    v.                                                  No. 09-4163
                                               (D.C. No. 2:08-CV-00110-CW)
    TRAVELERS INSURANCE                                   (D. Utah)
    COMPANY,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.


         Tim and Gerilyn Krehbiel’s daughter was severely and permanently injured

in a car accident involving Matthew Cannon. Matthew’s parents, Christopher and

Claudia Cannon, were insured by Travelers Insurance Company, which agreed to

pay $1 million under the Cannons’ homeowner umbrella policy, and $500,000



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination 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. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
under a policy that specifically insured the Hyundai Elantra Matthew was driving.

Travelers refused, however, to pay under two other auto policies issued to the

Cannons. That refusal sparked this declaratory judgment action in which the

Krehbiels seek to resolve Travelers’ liability on the two contested policies.

      We affirm the district court’s denial of coverage.

                                         I

      The contested policies identify Matthew’s parents, not Matthew, as the

named insured and do not list the Elantra as a covered auto in the declarations.

Even so, the Krehbiels contend that Matthew is covered vis-a-vis his parents

because Utah law mandates coextensive coverage for named insureds and resident

relatives. See Utah Code Ann. § 31A-22-303(1)(a)(iii).

      Travelers, however, argues that an exclusion in each policy barred coverage

because Matthew’s father owned the Elantra. The exclusion states:

      B. We do not provide Liability Coverages for the ownership,
         maintenance or use of:
          ....

             2. Any vehicle, other than “your covered auto”, which is:
                  a. owned by you; or
                  b. furnished or available for your regular use.

             3. Any vehicle, other than “your covered auto”, which is:
                  a. owned by a “family member”; or
                  b. furnished or available for the regular use of a “family
                     member”.

                   However, this exclusion (B.3.) does not apply to your
                   maintenance or use of any vehicle which is:

                                         -2-
                    a. owned by a “family member”; or
                    b. furnished or available for the regular use of a “family
                       member”.

Aplt. App. at 62, 98 (emphasis added).

      According to Travelers, exclusion B.2 precludes coverage for any vehicle,

other than “your covered auto,” which is “owned by you” or “furnished or

available for your regular use.” Since (1) the Elantra is not listed in the

declarations, see id. at 39, 74, it is not a covered auto, see id. at 60, 96 (defining

“[y]our covered auto” as “[a]ny vehicle shown in the Declarations”); and

(2) because Matthew’s father—a named insured—owned the car, see id. at 37

(listing title owners as “LAURA CANNON [Matthew’s sister] OR

CHRISTOPHER CANNON [Matthew’s father]”), Travelers contends exclusion

B.2 applies. The Krehbiels point out, however, that Matthew’s mother, who also

is a named insured, does not own the Elantra. Because she is not an owner, the

Krehbiels assert, she is not subject to the exclusion and coverage therefore

extends equally to her son Matthew.

      On cross-motions for summary judgment, the district court ruled in favor of

Travelers. The court recognized the dispositive issue was whether the terms

“you” and “your” refer to Matthew’s parents collectively or apply to each

individually; if collectively, the phrase “owned by you” includes them both and

there was no coverage. But if “you” and “your” refer to Matthew’s parents

individually, then presumably only Matthew’s father was excluded. Looking to

                                           -3-
the policy definitions, the court saw that “you” and “your” refer to “1. [t]he

‘named insured’ shown in the Declarations; and 2. [t]he spouse if a resident of the

same household.” Id. at 60, 96 (emphasis added). Because Matthew’s parents

were named insureds and resident spouses, the court ruled they collectively

satisfied the definition of “you” and “your.” And applying that meaning to the

policy exclusion, the court concluded that Matthew’s parents were both excluded

from coverage. Hence, the court rejected the Krehbiels’ contention that “you”

and “your” referred to Matthew’s parents individually, explaining that the

definitions unambiguously include all named insureds and all resident spouses.

                                          II

      On appeal, the Krehbiels maintain that “you” and “your” refer to Matthew’s

parents individually and thus only Matthew’s father was excluded. We review the

district court’s grant of summary judgment de novo, Reinhardt v. Albuquerque

Pub. Sch. Bd. of Educ., 595 F.3d 1126, 1131 (10th Cir. 2010), and agree that

Travelers was entitled to judgment. First, the district court correctly determined

under this language that the exclusion would have applied to Mrs. Cannon if she

had been driving the Elantra (as a resident spouse), and by extension, her son (as

a household member). Second, indefinite pronouns such as “you” or “your” can

be and are used as plural pronouns in the policies—“they refer to both Chris and

Claudia and to either Chris or Claudia,” depending on the context of the sentence.

Aplt. App. at 223 (D. Ct. Op. at 6 ) (emphasis in original). Third, Utah law did

                                         -4-
not directly apply to the exclusion here, and many cases from other jurisdictions

support the district court’s interpretation. See, e.g., Hillman v. Grace, 498 So. 2d

1108, 1110 (La. Ct. App. 1986); Sheldon v. Hartford Ins. Co., 189 P.3d 695,

699-700 (N.M. Ct. App. 2008); Hacker v. Dickman, 661 N.E.2d 1005, 1007

(Ohio 1996); Sunshine Ins. Co. v. Sprung, 452 N.W.2d 782, 784 (S.D. 1990).

      Nevertheless, the Krehbiels urge us to abandon this line of cases and follow

Barclay v. State Auto Insurance Companies, 816 N.E.2d 973, 977 (Ind. Ct. App.

2004), where the court decided “you” and “your” applied individually to a named

insured and resident spouse, but not both. Advancing this interpretation, the

Krehbiels assert Mrs. Cannon is “you” and Mr. Cannon is a “family member” so

as to cover Mrs. Cannon as a named insured and separately exclude Mr. Cannon

as owner of the Elantra.

      Barclay, however, is distinguishable on its facts. Unlike the contested

policies here, which jointly designate Christopher and Claudia Cannon as named

insureds, the policy at issue in Barclay listed only one spouse as the named

insured. Id. at 974. The other spouse was separately insured under a different

policy issued by a different carrier. Id. Thus, with only one named insured,

Barclay did not evaluate whether multiple named insureds on the same policy are

considered collectively under the definition of “you” and “your.” The Krehbiels

overlook this distinction and cite Barclay for its application of the term “you” to




                                         -5-
the only named insured. 1 But absent a second named insured, Barclay offers no

insight into the critical issue before us.

      And while we agree that Mrs. Cannon qualifies as “you,” we may not

designate Mr. Cannon a “family member.” The policies (both here and in

Barclay) define a “family member” as “a person related to you by blood, marriage

or adoption who is a resident of your household.” Aplt. App. at 60, 96;

816 N.E.2d at 975 (emphasis added). Because a “family member” must be

“related to ‘you,’” one who satisfies the definition of “you” cannot be a “family

member.” See Hillman, 498 So. 2d at 1110 (“persons who fall within the

definition of ‘you’ are not included among the persons who fall within the

definition of ‘family member’”). Consequently, Mr. Cannon must be designated

“you” along with Mrs. Cannon because he is both a named insured and resident

spouse. In fact, even if Mr. Cannon were not a named insured, he would still be

deemed “you” as his wife’s resident spouse and vice-versa. There is no question

then that Mr. and Mrs. Cannon are both excluded under the policies.

      Finally, the Krehbiels contend that if nothing else, Barclay renders the

exclusion ambiguous. They assert Barclay offers a reasonable alternative to the



1
      Curiously, the court selected the named insured as “you” because she was
“the driver seeking coverage for driving a car other than the ‘covered auto.’”
Barclay, 816 N.E.2d at 978 n.2. We doubt Matthew Cannon could similarly
qualify as “you” because he happens to be seeking coverage for driving the
Elantra.

                                             -6-
district court’s construction, thereby precluding Travelers from establishing that

the exclusion is amenable to only one interpretation. See Aplt. Br. at 13-14. The

Krehbiels’ failure to raise this issue in the district court, however, obviates our

need to consider it now. See Tele-Commc’ns, Inc. v. Comm’r, 104 F.3d 1229,

1232-33 (10th Cir. 1997). 2

      Yet even if the Krehbiels had preserved this issue, a split in judicial

authority in this context does not necessarily manifest ambiguity. See generally

Hartford Accident & Indem. Co. v. U.S. Fid. & Guar. Co., 962 F.2d 1484, 1489

(10th Cir. 1992). Indeed, courts continue to find the contested policy language

unambiguous, despite the divergent case law. See, e.g., Sheldon, 189 P.3d at 700.

The question is whether the exclusion is “phrased in ‘language which clearly and

unmistakably communicates to the insured the specific circumstances under which

the expected coverage will not be provided.’” Calhoun v. State Farm Mut. Auto.

Ins. Co., 96 P.3d 916, 924 (Utah 2004) (quoting Alf v. State Farm Fire & Cas.

Co., 850 P.2d 1272, 1275 (Utah 1993)); see also id. at 924-25 (“[P]olicy language

is ambiguous only when it is not plain to a person of ordinary intelligence and

understanding, viewing the matter fairly and reasonably, in accordance with the


2
       The Krehbiels observed in the district court that Travelers bore the burden
of showing an enforceable exclusion, see Aplt. App. at 181-82, but they never
argued, as they do now, that Barclay represents a reasonable, alternative
interpretation that renders the policies ambiguous. In fact, they never even
argued the policies are ambiguous; to the contrary, the Krehbiels asserted the
policies contain language that “unequivocally” provides coverage. Id. at 176.

                                          -7-
usual and natural meaning of words, and in the light of existing circumstances,

including the purpose of the policy.” (quotation omitted)). Here, the exclusion

clearly and unmistakably states its limitation on coverage.

                                        III

      The judgment of the district court is AFFIRMED. The Krehbiels’ motion

for certification to the Utah Supreme Court is DENIED.


                                                    Entered for the Court



                                                    Timothy M. Tymkovich
                                                    Circuit Judge




                                        -8-
