Case: 19-30044      Document: 00515077323         Page: 1    Date Filed: 08/15/2019




           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit
                                    No. 19-30044                          FILED
                                  Summary Calendar                  August 15, 2019
                                                                     Lyle W. Cayce
RON ZOLLER,                                                               Clerk


              Plaintiff - Appellant

v.

T.H.E. INSURANCE COMPANY; SELECTIVE INSURANCE COMPANY OF
SOUTH CAROLINA,

              Defendants - Appellees



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:16-CV-1837


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Ron Zoller appeals the district court’s grant of summary judgment in
favor of T.H.E. Insurance Company and Selective Insurance Company of South
Carolina. For the reasons that follow, we AFFIRM.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 19-30044
                                             I.
       While driving his car, appellant Ron Zoller was rear-ended by Charles
Nikolauzyk. At the time of the accident, Nikolauzyk was driving a truck
pulling a Millennium Concession Trailer (the “Millennium trailer”). The CEO
of Schantz Manufacturing, Inc. (“Schantz”), the company that manufactured
the trailer, described the trailer as “essentially a mobile kitchen on wheels,”
which was “designed primarily for food preparation and service while in a
stationary position.” Nikolauzyk was towing the trailer for his employer,
Newsom Trucking, who was delivering the trailer on behalf of Schantz to Ray
Cammack Shows.
       Zoller sued Nikolauzyk, the owners of Newsom Trucking, and their
insurer in Louisiana state court. Defendants removed the case to federal court.
Zoller later amended his complaint to add several other parties as defendants,
including appellees T.H.E. Insurance Company (“T.H.E.”) and Selective
Insurance Company of South Carolina (“Selective”). T.H.E. provided insurance
to Ray Cammack Shows, while Selective provided insurance to Schantz. Both
T.H.E. and Selective moved for summary judgment. Selective argued, among
other things, that its policy did not cover the trailer because it was “mobile
equipment,” as opposed to an “auto,” the former of which is excluded from the
policy. The district court agreed and entered summary judgment in Selective’s
favor on that basis. T.H.E., whose policy is substantially identical to
Selective’s, raised this same argument, and the district court entered summary
judgment in T.H.E.’s favor on the same basis. 1 Zoller appeals the dismissals
of T.H.E. and Selective.


       1  The district court found a genuine dispute of fact, however, on the issue of who—
Schantz or Ray Cammack Shows—owned the trailer at the time of the accident. T.H.E. seeks
to dispute this conclusion on appeal. We do not reach this issue: because we agree with the
district court that the Millennium trailer was excluded from both policies, it is immaterial
for purposes of this appeal who owned the trailer at the time of the accident.
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                                   No. 19-30044
                                         II.
      The only issue in this appeal is whether the Millennium trailer was an
“auto” or “mobile equipment” for purposes of T.H.E.’s and Selective’s respective
policies with Schantz and Ray Cammack Shows. If it is the former, then it falls
within the scope of the policies’ coverage. If it is the latter, it is excluded.
      At the outset, we must determine what state’s law applies to this case.
The district court applied Illinois law to both motions below, without objection
from either party. Now on appeal, T.H.E. seeks for the first time to invoke
Louisiana law while nonetheless acknowledging that “there is no material
difference between Louisiana and Illinois in the interpretation of insurance
policies.” Because T.H.E. failed to raise this conflict-of-laws dispute below, we
refuse to consider it now on appeal. Belt v. EmCare, Inc., 

, 408
(5th Cir. 2006) (“If an argument is not raised to such a degree that the district
court has an opportunity to rule on it, we will not address it on appeal.”)
(quoting FDIC v. Mijalis, 

, 1327 (5th Cir. 1994)). Thus, we apply
Illinois law to this dispute.
      Under Illinois law, “the rules applicable to contract interpretation
govern the interpretation of an insurance policy.” Founders Ins. Co. v. Munoz,

, 1003 (Ill. 2010). Accordingly, the primary function of a court
in an insurance contract dispute “is to ascertain and give effect to the intention
of the parties, as expressed in the policy language.” 

is no ambiguity
in the agreement, it “will be applied as written, unless it contravenes public
policy.” 

Thus, “[t]he rule that policy provisions limiting an insurer’s
liability will be construed liberally in favor of coverage” applies only in the face
of ambiguity. 

agree that the two policies involved in this case are
substantially identical. The policies cover “autos,” which the policies define as:


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                                 No. 19-30044
      1. A land motor vehicle, “trailer” or semitrailer designed for travel
      on public roads; or
      2. Any other land vehicle that is subject to a compulsory or
      financial responsibility law or other motor vehicle insurance law
      where it is licensed or principally garaged.

The policies expressly exclude “mobile equipment” from their definition of
“auto.” Mobile equipment, in turn, is defined to include, for example,
“[b]ulldozers, farm machinery, forklifts and other vehicles designed for use
principally off public roads.” The policies further provide that mobile
equipment includes vehicles “maintained primarily for purposes other than the
transportation of persons or cargo.”
      Zoller argues that the Millennium trailer at issue in this case is an “auto”
because the contract’s definition of auto expressly includes a “‘trailer’ or
semitrailer designed for travel on public roads.” T.H.E. and Selective argue to
the contrary that the Millennium trailer falls under the exclusion for mobile
equipment, specifically the policies’ exclusion of vehicles “maintained
primarily for purposes other than the transportation of persons or cargo.”
      We agree with T.H.E.’s and Selective’s interpretation of the policies.
Although “auto” expressly includes “trailers” under the policies, that definition
is subject to the exclusion provided for “mobile equipment.” As a result, any of
the items enumerated under the definition of an “auto” may nonetheless be
excluded, so long as it falls within the definition of “mobile equipment.” And
we conclude the Millennium trailer falls within this exclusion. The CEO of
Schantz manufacturing, the company that manufactured the trailer, testified
that the Millennium trailer was built “to solely prepare and cook food off [the]
highway.” Zoller puts forward no evidence to rebut this proposition, nor does
he otherwise undermine the conclusion that the Millennium trailer was
maintained “primarily for purposes other than the transportation of persons

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                                  No. 19-30044
or cargo.” Instead, Zoller argues that the Millennium trailer was mixed-use: it
could be used both to prepare food off-road and transport cargo while on the
road. However, the question before us is not whether the trailer may be put to
more than one use but rather what its primary use is. On this question, it is
clear that the trailer’s primary use is food preparation, not the transportation
of persons or cargo.
      For similar reasons, we reject Zoller’s argument that the Millennium
trailer was not mobile equipment because it does not share common
characteristics with other types of mobile equipment referenced in the
agreement above. Although the Millennium trailer differs from the items listed
in certain respects, it plainly falls within the category, expressly provided in
the policy, of vehicles “maintained primarily for purposes other than the
transportation of persons and cargo.” In light of this provision, we will not read
ambiguity into the agreement based on the general category of items listed in
the preceding paragraphs. Accordingly, the district court did not err in
concluding that the Millennium trailer was mobile equipment and therefore
excluded from both T.H.E.’s and Selective’s policies.
                                       III.
      For the reasons set forth above, the judgment of the district court is
AFFIRMED.




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