Clyde Boyett v. Redland Insurance Co.

Case: 12-31273 Document: 00512513615 Page: 1 Date Filed: 01/27/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

January 27, 2014

No. 12-31273

Lyle W. Cayce

Clerk

CLYDE BOYETT, et al.,

Plaintiffs-Appellants

v.

REDLAND INSURANCE CO.,

Defendant-Appellee

Appeal from the United States District Court

for the Western District of Louisiana

Before STEWART, Chief Judge, and DAVIS and WIENER, Circuit Judges.

WIENER, Circuit Judge:

In this diversity case, Plaintiffs-Appellants Clyde Boyett (ABoyett@) and

his wife, Annie Boyett (together, Athe Boyetts@), seek to recover damages for

injuries Boyett incurred in an accident. Recovery is sought against Defendant-

Appellee Redland Insurance Company (ARedland@) under an insurance policy

Redland issued to Boyett=s employer, Boeuf River Ventures (ABoeuf River@).

The district court granted Redland=s summary judgment motion after

determining that the Boyetts could not avail themselves of uninsured motorist

(AUM@) benefits provided by Title 22, Section 1295 of the Louisiana Revised

Statutes (ASection 1295@). Although the district court concluded that Section

Case: 12-31273 Document: 00512513615 Page: 2 Date Filed: 01/27/2014

No. 12-31273

1295 applies to the North Carolina accident, it ruled that the offending

uninsured machine, a forklift, was not a Amotor vehicle@ for purposes of that

law. On appeal, the Boyetts contend that the district court erred in precluding

UM coverage on the ground that the uninsured forklift that caused the accident

was not a Amotor vehicle.@ We hold that a forklift is a Amotor vehicle@ within

the contemplation of Section 1295=s identification of the uninsured or

underinsured vehicle, and therefore reverse and remand for further

proceedings consistent with this opinion.

I. FACTS AND PROCEEDINGS

The material facts in this case are simple. Boeuf River employed Boyett

as a truck driver. In March 2009, Boyett was driving a flatbed tractor-trailer

for Boeuf River hauling a load of lumber for delivery to Carolina Lumber &

Brick, Ltd. (ACarolina Lumber@) in North Carolina. Boeuf River maintained

insurance on the tractor-trailer under a commercial lines policy which provided

AAuto@ 1 liability coverage. The policy, which was issued in Louisiana, did not

include any provisions whatsoever relating to UM coverage. Neither was a

waiver of statutory UM coverage executed pursuant to Louisiana law

appended to the policy. 2 The parties agree that Boyett was an insured under

that policy.

1 The policy defines an AAuto@ to be a Aland motor vehicle, >trailer= or semitrailer

designed for travel on public roads; or [a]ny 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 term AAuto@ does not include AMobile equipment@ such as

Aforklifts.@

2An insured may decline statutory UM coverage via a properly executed waiver. See

La. Rev. Stat. ' 22:1295(1)(a)(i) (A[T]he coverage required under this Section is not applicable

when any insured named in the policy either rejects coverage, selects lower limits, or selects

economic-only coverage, in the manner provided in Item (1)(a)(ii) of this Section.@) and

22:1295(1)(a)(ii) (ASuch rejection, selection of lower limits, or selection of economic-only

coverage shall be made only on a form prescribed by the commissioner of insurance.@). The

2

Case: 12-31273 Document: 00512513615 Page: 3 Date Filed: 01/27/2014

No. 12-31273

The accident occurred in North Carolina when, while an employee of

Carolina Lumber was using a forklift to unload the lumber from the tractor-

trailer, some of it fell, striking and severely injuring Boyett. He underwent

surgery in an attempt to save his right foot. That surgery was unsuccessful,

however, and he underwent further surgery to remove the lower portion of his

right leg.

The Boyetts filed suit against Redland in the United States District

Court for the Western District of Louisiana, alleging that the forklift was an

uninsured motor vehicle within the meaning of Section 1295 and that,

pursuant to Louisiana law, they were entitled to statutory UM benefits under

Redland=s policy. Redland answered, then moved for summary judgment,

claiming that (1) the policy did not provide liability coverage for the North

Carolina accident, and (2) Louisiana statutory UM coverage was unavailable to

the Boyetts because the offending forklift was not an uninsured Amotor vehicle@

as the term is used in Section 1295(1)(a)(i). The district court granted partial

summary judgment in favor of Redland, ruling that the policy did not provide

liability coverage. 3 As to statutory UM coverage, however, the court ruled that

Redland had failed to meet its summary judgment burden and denied the

motion on that issue, reserving to Redland the right to re-urge it at a later

time.

The court subsequently held a status conference with the parties to

discuss whether the case could be disposed of on motions practice. 4 Following

waiver need not be physically attached to the policy. La. Rev. Stat. ' 22:1295(1)(a)(ii).

3The Boyetts conceded in their opposition memorandum that the policy did not

provide liability coverage for the accident.

4 The minute entry memorializing this status conference stated that,

3

Case: 12-31273 Document: 00512513615 Page: 4 Date Filed: 01/27/2014

No. 12-31273

that conference, Redland re-urged its motion for summary judgment with

respect to statutory UM coverage. The district court considered Redland=s re-

urged motion, then held that (1) Louisiana=s UM statute applies to the

Louisiana-issued policy even though the accident occurred in North Carolina,

but (2) the offending forklift is not a Amotor vehicle@ for the purposes of that

statute. The district court ruled that the Boyetts were not entitled to statutory

UM benefits and dismissed their action. They timely filed a notice of appeal

with respect to the district court=s holding on statutory UM coverage.

II. ANALYSIS

A. Standard of Review and Special Louisiana Erie Considerations

We review a grant of summary judgment de novo, applying the same

standard as the district court. 5 Summary judgment is appropriate when Athere

is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.@ 6 When reviewing a summary judgment, we

[i]n the motion for summary judgment and opposition thereto,

the parties are asked to provide more information on the forklift

at issue here, specifically whether it is titled and whether it is

capable of being driven on a highway. In addition, the parties

are asked to address the following issues: (1) what is the

controlling definition of a motor vehicle for purposes of the

uninsured motorist statute, Louisiana Revised Statute 22:1295;

(2) is the forklift a motor vehicle within the uninsured motorist

statute; (3) has Title [3]2 ever been used to define a motor vehicle

for purposes of Title 22; (4) what does the language of Louisiana

Revised Statute 22:1295(1)(a)(iii) mean when it states that

Auninsured motorist coverage shall apply to any liability

insurance covering any accident which occurs in this state and

involves a resident of this state@; and (5) when was the aforesaid

language added to the statute.

5 Cambridge Integrated Servs. Grp., Inc. v. Concentra Integrated Servs., Inc., 697 F.3d

248, 253 (5th Cir. 2012).

6 Fed. R. Civ. P. 56(a).

4

Case: 12-31273 Document: 00512513615 Page: 5 Date Filed: 01/27/2014

No. 12-31273

construe all the evidence and make all reasonable inferences in the light most

favorable to the nonmoving party. 7 We are Anot limited to the district court=s

reasons for its grant of summary judgment@ and Amay affirm the district court=s

summary judgment on any ground raised below and supported by the record.@ 8

When, as in this case, subject matter jurisdiction is based on diversity,

federal courts apply the substantive law of the forum stateChere, Louisiana. 9

To determine the forum state=s law, we look first to the final decisions of that

state=s highest courtChere, the Louisiana Supreme Court. 10 In the absence of

a determinative decision by that court on the issue of law before us, we must

determine, in our best judgment, how we believe that court would resolve the

issue. 11 As the Louisiana Supreme Court has not addressed whether (1) the

state=s UM statute applies to out-of-state accidents or (2) a forklift can be the

uninsured or underinsured Amotor vehicle@ within the meaning of Section 1295,

the district court had to make an AErie guess@ as to these two issues. 12 On

appeal, we must do the same and do so de novo. 13

In making our Erie guess in this case, we must employ Louisiana=s

civilian methodology in the same manner as would the Louisiana Supreme

7 Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225, 234 (5th Cir. 2010).

8 Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 478 (5th Cir. 2008).

Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); Holt v.

9

State Farm Fire & Cas. Co., 627 F.3d 188, 191 (5th Cir. 2010).

10 Amer. Int=l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th Cir.

2003).

11 Holt, 627 F.3d at 191.

12 Id.

13 Id.

5

Case: 12-31273 Document: 00512513615 Page: 6 Date Filed: 01/27/2014

No. 12-31273

Court. 14 As we have previously explained, A[u]nder Louisiana=s Civil Code, the

only authoritative >sources of law are legislation and custom.= @ 15 Indeed, in

Louisiana A[l]egislation is a solemn expression of legislative will.@ 16 Thus, we

must look first to Louisiana=s Constitution, its codes, and statutes, because the

A >primary basis of law for a civilian is legislation, and not (as in the common

law) a great body of tradition in the form of prior decisions of the courts.= @ 17

Unlike in common law systems, A[s]tare decisis is foreign to the Civil Law,

including Louisiana.@ 18 Nevertheless, Ain cases such as this[,] we are guided

by decisions rendered by the Louisiana appellate courts, particularly when

14 Amer. Int=l Specialty, 352 F.3d at 260.

15 Id. at 260-61 (citing La. Civ. Code art. 1; Transcon. Gas Pipe Line Corp. v. Transp.

Ins. Co., 953 F.2d 985, 988 (5th Cir. 1992); A.N. Yiannopoulos, Civil Law System 117 (2d ed.

1999)).

16 La. Civ. Code art. 2; Transcon. Gas, 953 F.2d at 988.

17Transcon. Gas, 953 F.2d at 988 (quoting Albert Tate, Jr., Techniques of Judicial

Interpretation in Louisiana, 22 La. L. Rev. 727 (1962)); see also Alvin B. Rubin, Hazards of a

Civilian Venturer in Federal Court: Travel and Travail on the Erie Railroad, 48 La. L. Rev.

1369 (1988).

18Amer. Int=l Specialty, 352 F.3d at 260 (quoting Transcon. Gas, 953 F.2d at 988; citing

Ardoin v. Hartford Acc. & Indem. Co., 360 So. 2d 1331, 1334 (La.1978)) (internal quotation

marks omitted).

6

Case: 12-31273 Document: 00512513615 Page: 7 Date Filed: 01/27/2014

No. 12-31273

numerous decisions are in accord on a given issue@Ci.e., jurisprudence

constante 19CAbut we are not strictly bound by them.@ 20

B. Whether the Louisiana UM Statute Applies to Out-of-State

Accidents

On appeal, the Boyetts assert that the district court Acorrectly@

determined that the UM statute applies to this accident, even though it

occurred in North Carolina. Although it did not appeal that holding, Redland

insists that Section 1295 does not extend to out-of-state accidents. 21 If Redland

is correct on this point, then we need not reach the Boyetts= contention that a

forklift can be an uninsured or underinsured motor vehicle within the meaning

of the statute. We therefore consider first whether the district court correctly

19The Louisiana Supreme Court has succinctly summarized the civilian doctrine of

jurisprudence constante as follows:

[W]hile a single decision is not binding on our courts, when a

series of decisions form a constant stream of uniform and

homogenous rulings having the same reasoning, jurisprudence

constante applies and operates with considerable persuasive

authority. Thus, prior holdings by this court are persuasive, not

authoritative, expressions of the law.

Eagle Pipe & Supply, Inc. v. Amerada Hess Corp., 79 So. 3d 246, 256 (La. 2011) (internal

citations, quotation marks and brackets omitted).

20 Transcon. Gas, 953 F.2d at 988; Rubin, 48 La. L. Rev. at 1378-79.

21Because Redland (1) raised this argument before the district court, (2) was the

prevailing party on summary judgment, and (3) is not seeking to alter or amend the judgment

in any way, it was not obligated to cross-appeal to raise this argument as an alternative

ground for affirming the district court=s ultimate holding that the Boyetts are not entitled to

statutory UM coverage. See Teltech Sys., Inc. v. Bryant, 702 F.3d 232, 235 (5th Cir. 2012).

Thus, we may consider Redland=s contention that Section 1295 does not apply to out-of-state

accidents.

7

Case: 12-31273 Document: 00512513615 Page: 8 Date Filed: 01/27/2014

No. 12-31273

concluded that the statute may apply to accidents that occur outside of

Louisiana.

ALouisiana statutory law provides for UM coverage for the purpose of

providing >full recovery for automobile accident victims who suffer damages

caused by a tortfeasor who is not covered by adequate liability insurance.= @ 22

Thus, AUM coverage will be read into any automobile liability policy >unless

validly rejected.= @ 23 As it is undisputed that Redland=s policy was issued in

Louisiana and that there was no valid rejection of statutory UM coverage, the

Boyetts are entitled to statutory UM coverage by operation of law unless they

are otherwise divested of or precluded from asserting such entitlements.

In support of its claim that Louisiana statutory UM coverage is not

available for out-of-state accidents, Redland points to Section 1295(1)(a)(iii),

which states: AThis Subparagraph and its requirements for uninsured motorist

coverage shall apply to any liability insurance covering any accident which

occurs in this state and involves a resident of this state.@ Redland argues that

this provision serves as a Ageographic limitation@ which prevents the UM

statute from applying to accidents that occur outside of Louisiana. The district

court rejected this characterization of Section 1295(1)(a)(iii), concluding that it

Awill only come into play where there is a foreign policy and each prong of the

conjunctive amendment is met.@ Both the history and the plain language of

the UM statute confirm the propriety of the district court=s conclusion that

Section 1295 may extend to out-of-state accidents. 24

22 Gray v. Am. Nat=l Prop. & Cas. Co., 977 So. 2d 839, 845 (La. 2008).

23 Id. The amount of statutory UM coverage must be Anot less than the limits of bodily

injury liability provided by the policy.@ La. Rev. Stat. ' 22:1295(1)(a)(i).

24 AIn Louisiana, the starting point in ascertaining statutory meaning is the language

of the statute itself.@ Keenan v. Donaldson, Lufkin & Jenrette, Inc., 529 F.3d 569, 573 (5th

8

Case: 12-31273 Document: 00512513615 Page: 9 Date Filed: 01/27/2014

No. 12-31273

Prior to 1987, the UM statute 25 explicitly addressed Ainsurance [policies]

delivered or issued for delivery in this state with respect to any motor vehicle

registered or principally garaged in this state.@ 26 The Louisiana Supreme

Court analyzed the scope of this language in Snider v. Murray. 27 In Snider,

the relevant insurance policy was issued and delivered in Texas by a Texas

agent to the insuredCJerry Snider (ASnider@)Cwho was domiciled in Texas; the

vehicle listed in the policy was principally garaged in Texas. Snider then

moved to Louisiana, where the accident occurred. Snider=s widow and children

sought to recover under the predecessor of Section 1295. 28 Focusing on the

plain language of the statue, which Aby its express terms purport[ed] to affect

only@ insurance policies Adelivered or issued for delivery in@ Louisiana, the

court ruled that the statute did not extend to policies issued in other states.

Cir. 2008) (citing City of New Orleans v. La. Assessors= Ret. and Relief Fund, 986 So. 2d 1, 17

(La. 2007)). A statute=s words are Agiven their generally prevailing meaning.@ La. Civ. Code

art. 11; La. Rev. Stat. ' 1:3. AWhen the law is Aclear and unambiguous and its application

does not lead to absurd consequences,@ we apply it as written. La. Civ. Code art. 9. AWhen

the language of the law is susceptible of different meanings,@ however, Ait must be interpreted

as having the meaning that best conforms to the purpose of the law.@ La. Civ. Code art. 10;

Pumphrey v. City of New Orleans, 925 So. 2d 1202, 1209 (La. 2006). In essence, Athe general

intent and purpose of the Legislature in enacting the law must, if possible, be given effect.@

Keenan, 529 F.3d at 573 (quoting Pumphrey, 925 So. 2d at 1209) (internal quotation marks

omitted).

25 The UM statute was originally numbered La. Rev. Stat. ' 22:1406. It was

redesignated as La. Rev. Stat. ' 22:680 pursuant to 2003 La. Acts No. 456, ' 3. Effective

January 1, 2009, it was again renumbered to La. Rev. Stat. ' 22:1295 pursuant to 2008 La.

Acts No. 415, ' 1. See Scarborough v. Randle, 109 So. 3d 961, 963 n.1 (La. App. 3d Cir. 2013).

See Snider v. Murray, 461 So. 2d 1051, 1052 n.1 (La. 1985) (quoting prior version of

26

the UM statute, then codified at La. Rev. Stat. ' 22:1406(D)(1)).

27 Id.

28 Id. at 1051-52.

9

Case: 12-31273 Document: 00512513615 Page: 10 Date Filed: 01/27/2014

No. 12-31273

Under Louisiana law, the Snider plaintiffs were thus barred from recovering. 29

The court nevertheless ventured, in dicta, that A[p]erhaps the Legislature could

have enacted a law which under modern conflict of laws theories would affect

insurance policies written in other states when the accident occurs in

Louisiana.@ 30

Soon thereafter, the Louisiana Legislature did just that, adding present

Section 1295(1)(a)(iii) 31 and thereby superseding Snider. Consequently, Anow

Louisiana=s UM law can [sic] be applied to foreign insurance policies in

multistate cases when the accident occurs in Louisiana and involves a

Louisiana resident.@ 32 Subsequent Louisiana opinions have recognized that

the adoption of Section 1295(1)(a)(iii) Awas intended to extend geographically

the scope of UM coverage beyond cases where the policy was issued in

Louisiana and the vehicle was garaged in Louisiana.@ 33 Section 1295(1)(a)(iii)

thus expands the reach of Louisiana statutory UM coverage to out-of-state

policies when the accident occurs in Louisiana and involves a Louisiana

resident. It does not address Louisiana-issued policies, however, as they are

already subject to Section 1295(1)(a)(i). 34 Left open was whether Section

1295(1)(a)(i) applies to accidents that occur outside of Louisiana.

29 Id. at 1053 (emphasis in original).

30 Id. at 1053-54.

31At the time this language was added to the statute, the subsection was codified at

La. Rev. Stat. ' 22:1406(D)(1)(a)(iii). See supra n.25.

32 Champagne v. Ward, 893 So. 2d 773, 779-80 (La. 2005) (bold in original).

33 Nelson v. Robinson, 10 So. 3d 356, 359 (La. App. 2d Cir. 2009); see also Willett v.

Nat=l Fire & Marine Ins. Co., 594 So. 2d 966, 969 (La. App. 3d Cir. 1992) (explaining that

after amendment the UM statute Ais no longer limited in its effect to only those policies that

are delivered or issued for delivery in this state@).

34 See Wendling v. Chambliss, 36 So. 3d 333, 339 (La. App. 1 Cir. 2010) (Downing, J.,

10

Case: 12-31273 Document: 00512513615 Page: 11 Date Filed: 01/27/2014

No. 12-31273

Although the Louisiana Supreme Court has never addressed whether

the UM statute is applicable only when the accident occurs within the state,

we are satisfied that, if confronted with this issue, that court would reject

Redland=s argument that Section 1295(1)(a)(iii) serves as a Ageographic

limitation.@ First, well before the legislature=s 1987 amendment that added

Section 1295(1)(a)(iii), the Louisiana Supreme Court had recognized that the

statute Aembodies a strong public policy@ 35 and therefore must be Aliberally

construed to carry out [its] objective of providing reparation for those injured

through no fault of their own.@ 36 As discussed above, nothing about the context

of Section 1295(1)(a)(iii)=s adoption suggests that it was intended to

restrictCrather than expandCthe Louisiana UM law in any way. Indeed, pre-

Section 1295(1)(a)(iii) case law held that the UM statute reads coverage into

policies issued in Louisiana even when an accident occurs outside of the state. 37

Second, nothing in the plain language of Section 1295(1)(a)(iii) expressly

limits the ambit of the statute to accidents that occur in Louisiana. Third,

reading Section 1295(1)(a)(iii) in the manner Redland has suggested would

categorically prevent Louisiana=s UM law from ever applying to out-of-state

accidents, even if the accident involved only Louisiana residents, Louisiana

concurring) (explaining that Section 1295(1)(a)(iii) is an Aexception . . . to the applicability of

Louisiana=s uninsured motorists law only to policies issued in this state@).

35 A.I.U. Ins. Co. v. Roberts, 404 So. 2d 948, 949 (La. 1981).

36Hoefly v. Gov=t Emps. Ins. Co., 418 So. 2d 575, 578 (La. 1982) (citing Niemann v.

Travelers Ins. Co., 368 So. 2d 1003 (La. 1979); Elledge v. Warren, 263 So. 2d 912 (La. App. 3d

Cir. 1972); Valdez v. Fed. Mut. Ins. Co., 272 Cal. App. 2d 223, 77 Cal. Rptr. 411 (1969)).

37 See William Shelby McKenzie & H. Alston Johnson III, 15 La. Civil Law Treatise

' 4:4 (4th ed. 2012) (AThe Louisiana UM statute is applicable to a policy issued in Louisiana

on an automobile registered in Louisiana even though the accident occurs in another state.@)

(citing Comeaux v. Penn. Gen. Ins. Co., 490 So. 2d 1191, 1193 (La. App. 3d Cir. 1986)).

11

Case: 12-31273 Document: 00512513615 Page: 12 Date Filed: 01/27/2014

No. 12-31273

vehicles, and Louisiana insurance policies. Motor vehicle accidents with

contacts to multiple states are common, so there is no basis to conclude that

the legislature intended to waive Louisiana=s interest in having its law apply

to a multistate accident with significant Louisiana contacts.

The Louisiana Supreme Court, furthermore, has recognized that a

foreign state=s UM law may govern an accident that occurs within Louisiana. 38

Concomitantly, it follows that an accident that occurs outside of Louisiana does

not vitiate Louisiana=s interest in that accident. As there is no on-point

decision from the Louisiana Supreme Court to the contrary, 39 the district court

was correct in concluding that Section 1295(1)(a)(iii) does not affect Louisiana-

issued insurance policies, all of which are governed instead by Section

1295(1)(a)(i). 40 That court correctly held that Louisiana=s UM statute may

apply to motor vehicle accidents that occur outside of Louisiana.

C. Whether a Forklift is a AMotor Vehicle@

We begin with the language of the statute to determine whether a forklift

may be a Amotor vehicle@ for purposes of Section 1295. Although Section

1295(1)(a)(i) lacks a definitions section, it states that mandatory UM coverage

38 See Champagne, 893 So. 2d at 786 (finding that, after conducting a conflict-of-law

analysis, Mississippi UM law applied even though the accident occurred in Louisiana).

39To the extent that Redland relies on language from an intermediate Louisiana court

of appeal decision to argue that Section 1295(1)(a)(iii) is a Ageographic limitation,@ such

language is at best dicta. See Triche v. Martin, 13 So. 3d 649, 652 (La. App. 1 Cir. 2009)

(holding that Section 1295(1)(a)(iii) Aplainly states that the statute=s application is limited to

accidents occurring >in this state= involving a resident of this state@) (emphasis omitted). In

Triche, the relevant policy was not delivered or issued for delivery in Louisiana, and the

accident did not occur in Louisiana. Id. at 649-50. Thus, the insured could not satisfy the

requirements of either Section 1295(1)(a)(i) or 1295(1)(a)(iii).

40 Whether Louisiana=s UM law in fact applies in this multistate case depends on a

conflict-of-law analysis, which is not at issue in this appeal. See Champagne, 893 So. 2d at

786.

12

Case: 12-31273 Document: 00512513615 Page: 13 Date Filed: 01/27/2014

No. 12-31273

shall be read into Aautomobile liability insurance [policies] . . . delivered or

issued for delivery in this state with respect to any motor vehicle designed for

use on public highways and required to be registered in this state.@ 41 Such

mandatory UM coverage protects persons Awho are legally entitled to recover

nonpunitive damages from owners or operators of uninsured or underinsured

motor vehicles because of bodily injury, sickness, or disease, including death

resulting therefrom.@ 42 The UM statute does not define Amotor vehicle,@ but it

does clearly distinguish between (1) the insured motor vehicle and (2) the

uninsured (or underinsured) vehicle. When defining the former, the UM

statute qualifies the term Amotor vehicle@ with the phrase Adesigned for use on

public highways and required to be registered in this state.@ When defining

the latter, however, it refers only to Amotor vehicles@ and omits the modifying

language. Stated differently, in the set of Amotor vehicles,@ only the sub-set of

those Adesigned for use on public highways and required to be registered in this

state@ qualify to be the insured motor vehicle. In stark contrast, the uninsured

or underinsured vehicle may be any vehicle from the entire set of Amotor

vehicles@; it is not restricted to membership in any sub-set.

The district court concluded, at least implicitly, that the statute=s

differentiation between the machines that qualify to be the insured motor

vehicle and those that qualify to be the uninsured motor vehicle was deliberate,

and proceeded to analyze the forklift under the meaning of A >motor vehicle,= as

the term is used without modification.@ The Boyetts do not directly address

the difference between the two definitions of Amotor vehicle,@ but they do argue

in terms of the unmodified usage of that term when identifying the uninsured

41 La. Rev. Stat. ' 22:1295(1)(a)(i).

42 Id.

13

Case: 12-31273 Document: 00512513615 Page: 14 Date Filed: 01/27/2014

No. 12-31273

vehicle. Redland counters that Athe only reasonable construction of the statute

is to apply the modifying language to the term >motor vehicle= wherever it is

used.@ As forklifts generally are not registered and are not required to have

the safety equipment necessary for a vehicle to operate legally on public

highwaysCe.g., headlamps, tail lamps, stop lamps, turn signals and rearview

mirrorsCadopting Redland=s position would exclude a forklift from the UM

statute=s scope. 43

AWhen interpreting a statute, all parts of a statute should be given effect,

and an interpretation making any part superfluous or meaningless should be

avoided.@ 44 With this axiom of statutory interpretation in mind, we observe

that accepting Redland=s definition of Amotor vehicle@ would make the

modifying phrase in Section 1295(1)(a)(i) superfluous. If the legislature meant

to restrict both the insured vehicle and the uninsured vehicle to the sub-set of

vehicles Adesigned for use on public highways and required to be registered in

this state,@ then it need not have included the restrictive or limiting language

that it employs to describe only those vehicles that qualify as insured motor

vehicles. Thus, to give full effect to all words of Section 1295(1)(a)(i), so that

none is superfluous, we must conclude that the legislature did not intend to

limit the statute=s protective scope only to damages caused by those uninsured

or underinsured vehicles that are Adesigned for use on public highways and

required to be registered in this state.@

The Louisiana Supreme Court=s repeated exhortations to construe the

UM statute in favor of insureds support this interpretation: The legislature

43 See, e.g., La. Rev. Stat. '' 32:53, 32:303, 32:304, 32:306, and 32:354.

44 Champagne, 893 So. 2d at 786 (citing First Nat=l Bank of Boston v. Beckwith Mach.

Co., 650 So. 2d 1148 (La. 1995)).

14

Case: 12-31273 Document: 00512513615 Page: 15 Date Filed: 01/27/2014

No. 12-31273

meant exactly what it wrote. 45 Thus, it must be presumed to have recognized

that motor vehicles not designed for use on public roads still pose a risk of

Abodily injury . . . or death@ when and if they are actually operated on those

roads, leading that body to protect insured drivers and their passengers from

the risk that those Aother@ motor vehicles might turn out to be uninsured or

underinsured. Thus, validating the asymmetrical treatment of insured versus

uninsured motor vehicles in the plain language of the UM statute does not

produce an absurd result; to the contrary, not validating it certainly could.

Having concluded that the legislature did not intend to define Amotor

vehicle@ as Redland suggests, we now must determine whether the uninsured

forklift in this case is in fact a Amotor vehicle@ under the Louisiana UM statute.

Given Section 1295=s omission of any definition of Amotor vehicle,@ we turn to

the canons of statutory interpretation to inform our Erie guess on this point. 46

When there is no binding Louisiana law on point, we look to other persuasive

legal authorities. 47

We first note that the Louisiana Supreme Court has not been presented

with the question of what constitutes a motor vehicle for the purposes of the

UM statute; neither has it been asked to define the term Amotor vehicle@ as

used in that statute. In the absence of a controlling Louisiana Supreme Court

case, one source to which we may turn is other portions of the Louisiana

Revised Statutes that are pertinent to such insurance coverage. Although the

45 See Gray, 977 So. 2d at 845; see also Hoefly, 418 So. 2d at 578; A.I.U. Ins. Co., 404

So. 2d at 949.

46 Amer. Int=l Specialty, 352 F.3d at 260; see also supra n.24.

47 Amer. Int=l Specialty, 352 F.3d at 260.

15

Case: 12-31273 Document: 00512513615 Page: 16 Date Filed: 01/27/2014

No. 12-31273

Louisiana Highway Regulatory Act (ALHRA@) 48 contains the provisions

governing motor vehicles and traffic regulation, and includes a definition of

Amotor vehicle,@ Section 1 of the LHRA explicitly states that such definition

applies only when Aused in this Chapter.@ 49 AThis Chapter@ refers to the LHRA,

which does not encompass the UM statute.

Both the Boyetts and Redland nevertheless encourage us to scrutinize

the definition of Amotor vehicle@ within the LHRA in reaching our holding

today. We recognize that some decisions of the intermediate appellate courts

of Louisiana, as well as the district court=s decision on summary judgment in

this case, have been guided by the LHRA because it purportedly Aindicat[es]

the legislature=s comprehension of the meaning of the term >Motor Vehicle.= @ 50

Assuming, without deciding, that the Louisiana Supreme Court would be

inclined to consult the LHRA, we acknowledge that its definitions are broad

enough to include forklifts. First, Avehicle@ is defined in the LHRA as Aevery

device by which persons or things may be transported upon a public highway

or bridge, except devices moved by human power or used exclusively upon

stationary rails or tracks. A bicycle or a ridden animal shall be a vehicle, and

48 La. Rev. Stat. '' 32:1 to 32:399.

49 La. Rev. Stat. ' 32:1.

50Thibodeaux v. St. Paul Mercury Ins. Co., 242 So. 2d 112, 114 (La. App. 3d Cir. 1971)

(relying on the LHRA=s definition of Amotorcycle@CAevery motor vehicle having a seat or

saddle for the use of the rider and designed to travel on not more than three wheels in contact

with the ground, but excluding a tractor@C to conclude that a motorcycle is a Amotor vehicle@

within the meaning of the UM statute because A[t]o take a more restricted view [that a

motorcycle is not a motor vehicle] would render the uninsured motorist protection practically

worthless@); see also Lee v. Davis, 897 So. 2d 753, 756 (La. App. 5th Cir. 2005) (holding, citing

Thibodeaux and the LHRA, that a bicycle is not an uninsured Aland motor vehicle@ or

Aautomobile@ under the UM provisions of an insurance policy).

16

Case: 12-31273 Document: 00512513615 Page: 17 Date Filed: 01/27/2014

No. 12-31273

a trailer or semitrailer shall be a separate vehicle.@ 51 In addition, the LHRA

defines a Amotor vehicle@ as Aevery vehicle which is self-propelled, and every

vehicle which is propelled by electric power obtained from overhead trolley

wires, but not operated upon rails, but excluding a motorized bicycle.@ 52

Combining the LHRA=s definition of Avehicle@ with its definition of Amotor

vehicle@ produces a very broad definition of Amotor vehicle@: every self-propelled

device by which persons or things can be transported upon a public highway.

Here, the forklift (1) was self-propelled, (2) carried things (lumber), (3) was

physically capable of driving on a public road, 53 and (4) is no less a Adevice@

than is a car or truck. Thus, the LHRA=s definitions support the conclusion

that a forklift is a Amotor vehicle@ for the purposes of identifying the uninsured

or underinsured machine under Section 1295.

Redland largely ignores the LHRA definition of Amotor vehicle@ and

instead cites the LHRA requirements that motor vehicles must satisfy to

operate on Louisiana streets and highways, such as lights and mirrors. 54

Because the forklift lacks those features, insists Redland, it was not designed

for operation on the streets and thus is not a Amotor vehicle@ for UM purposes.

Redland=s argument fails for two reasons. First, it assumes that the

uninsured motor vehicle must be Adesigned for use on the public highways and

required to be registered in this state,@ a position we have already rejected.

51 La. Rev. Stat. ' 32:1(92).

52 La. Rev. Stat. ' 32:1(40).

53 Boyett attests that he saw the Carolina Lumber employee drive the forklift on a

public road before the accident. On summary judgment, we construe all evidence in the light

most favorable to the nonmoving partyChere, the Boyetts.

54 See, e.g., La. Rev. Stat. '' 32:51, 32:53 and 32:54.

17

Case: 12-31273 Document: 00512513615 Page: 18 Date Filed: 01/27/2014

No. 12-31273

Second, the statutes that Redland cites provide additional requirements that

must be satisfied before a Amotor vehicle@ may be operated legally on Louisiana

streets and highways. If the forklift did not meet those requirements, that

means only that it could not be operated legally on public roads, not that it fails

to come within the definition of Amotor vehicle.@

Turning to the liability portion of its policy and citing case law that

interprets other provisions of the UM statute, Redland urges that we limit

statutorily provided UM coverage on the basis of provisions within the liability

portion of a contested insurance policy if such policy does not address UM

coverage. According to Redland, the imposition of statutory UM coverage is a

Ajudicial reformation of an insurance policy@ that Athwart[s] the intentions of

the parties.@ Consequently, Redland asserts, a contract of insurance may be

reformed only to the minimum extent necessary to bring the policy in

compliance with Louisiana law. As a result, concludes Redland, because its

policy excludes Amobile equipment@Cwhich includes Aforklifts@Cfrom liability

coverage, forklifts should be excluded from the statutorily imposed UM

coverage.

In its efforts to support this position, Redland first emphasizes that, to

determine whether a person is an Ainsured@ for the purposes of the UM statute,

one must look to the liability policy=s delineation of who is an insured under

that policy. 55 Second, Redland observes by analogy that the Louisiana Court

of Appeal for the First Circuit has employed language contained in the liability

portions of policies to limit an insured=s ability to recover punitive damages

under the UM statute. 56

55See, e.g., Carrier v. Reliance Ins. Co., 759 So. 2d 37 (La. 2000); Magnon v. Collins,

739 So. 2d 191 (La. 1999).

56 See Fontana v. La. Sheriff=s Auto. Risk Program, 697 So. 2d 1030, 1037 (La. App.

18

Case: 12-31273 Document: 00512513615 Page: 19 Date Filed: 01/27/2014

No. 12-31273

Regarding its first argument, Redland is correct in noting that Section

1295 expressly states that an Ainsured@ must be a person Anamed in the policy,@

thereby requiring one to begin with the language of the liability policy to

determine who may be eligible for statutory UM benefits. 57 It does not logically

follow, however, that the liability portions of a policy should cabin our

interpretation of UM coverage in ways not specifically enumerated in Section

1295.

With respect to Redland=s second argument, the jurisprudence on which

it relies is no longer good law in light of amendments to the UM statute which

were enacted subsequent to the cases relied on by Redland but prior to the

issuance of the instant policy and the occurrence of the instant accident.

Effective September 6, 1998, Aselection of economic-only coverage shall be

made only on a form prescribed by the commissioner of insurance@Cthat is, any

limit on a party=s entitlement to recover punitive damages may only be

obtained by properly executing a waiver in strict compliance with Section

1295(1)(a)(i) and (1)(a)(ii). 58 And, the Louisiana Supreme Court has stated

that Section 1295 Aimposes UM coverage in [Louisiana] notwithstanding the

language of the policy, the intentions of the parties, or the presence or absence

of a premium charge or payment,@ so reading terms explicitly regarding

liability into statutorily imposed UM coverage would vitiate Section 1295=s

Astrong public policy.@ For all of these reasons, we decline to impose limits on

statutory UM coverage on the basis of the liability provisions of a policy, as

Redland would have us do.

1st Cir. 1997) (citing Bauer v. White, 532 So. 2d 506 (La. App. 1st Cir. 1988)).

57 See La. Rev. Stat. ' 22:1295(1)(a)(i).

58 See Duncan, 950 So. 2d at 548.

19

Case: 12-31273 Document: 00512513615 Page: 20 Date Filed: 01/27/2014

No. 12-31273

In an effort to identify all other authority that in some way might inform

our decision, the parties have invited our attention to a plethora of cases

implicating either motor vehicle insurance policies or UM coverage generally.

Some of those decisions interpret language contained within the UM portions

of the relevant policies; 59 others address the meaning of Aforklift@ vis-à-vis

insurance policies= definitions of specific terms when UM coverage was not at

issue. 60 Another line of jurisprudence instructs that insurance policies may

not exclude particular classes of vehicles from UM coverage because such

exclusions violate public policy. 61 Still others are decisions of non-Louisiana

courts interpreting policy language or foreign statutes. 62 Ultimately, though,

59 See, e.g., Curtis v. Allstate Ins. Co., 631 F.2d 79, 80-81 (5th Cir. 1980) (enforcing a

territorial limitation provision); Lee, 897 So. 2d at 756 (holding that a bicycle was not within

a policy=s definition of Aland motor vehicle@ or Aautomobile@); Thibodeaux, 242 So. 2d at 113-

14 (holding that a motorcycle was within a policy=s definition of Aautomobile@).

60 See, e.g.,Williams v. Western World Ins. Co., 685 So. 2d 529, 531 (La. App. 3d Cir.

1996) (holding that a forklift was not a Ahighway vehicle@ under policy language); Dauthier v.

Pointe Coupee Wood Treating, 560 So. 2d 556, 558 (La. App. 1st Cir. 1990) (holding that a

forklift was Amechanical device@ and not an Aauto@ as those terms were defined in an

insurance policy).

61 Mednick v. State Farm Mut. Auto. Ins. Co., 31 So. 3d 1133, 1136 (La. App. 5th Cir.

2010) (holding that the language of an insurance policy cannot thwart the legislature=s

purpose by attempting to exclude UM coverage for Amotor vehicles@ owned by government);

Posey v. Commercial Union Ins. Co., 332 So. 2d 909, 913 (La. App. 2d Cir. 1976) (same with

respect to motorcycles).

62See, e.g., Gibboney v. Johnson, 2006 WL 2831028, at *6 (Ohio App. 8th Dist. 2006)

(interpreting Ohio UM law to conclude that forklifts are Amotor vehicles@); Olson v. U.S.

Fidelity & Guar. Co., 549 N.W.2d 199, 201 (S.D. 1996) (relying on the policy definition of

Amotor vehicle,@ which differs from the Louisiana UM statute); Aetna Cas. & Sur. Co. v.

Jewett Lumber Co., 209 N.W.2d 48, 49-50 (Iowa 1973) (interpreting policy language unlike

the statute at issue in this case); Cal. Packing Corp. v. Transp. Indemn. Co., 80 Cal. Rptr.

150, 153 (Cal. Ap. 1969) (holding that a Aforklift@ was covered by the policy language, in part

because the parties conceded a forklift was a Aland motor vehicle@).

20

Case: 12-31273 Document: 00512513615 Page: 21 Date Filed: 01/27/2014

No. 12-31273

because all these cases are inapposite or distinguishable, we do not find them

persuasive or even helpful.

Having scoured Louisiana=s primary sources of law and its jurisprudence

for guidance, we turn finally to the two-word term Amotor vehicle@ itself. A

forklift is (1) a vehicle (2) propelled by its own motor, so it intuitively follows

that a forklift is a Amotor vehicle.@ Likewise, dictionary definitions of Amotor

vehicle@ are broad enough to encompass the forklift in this case. 63 Finally, we

remain mindful that the public policy goal motivating the enactment of the UM

statute was the protection of innocent tort victims, 64 requiring that we

Aliberally construe[ ]@ 65 the statute in favor of coverage, Awhile the statutory

exceptions to UM coverage must be strictly construed.@ 66 We hold, therefore,

that a forklift is an uninsured motor vehicle for purposes of Section 1295. We

take comfort in the knowledge that such a construction of Amotor vehicle@

comports with the Louisiana Supreme Court=s expression that ALouisiana

statutes and jurisprudence evince a strong public policy in favor of UM

coverage.@ 67

See Webster=s Third New Int=l Dictionary Unabridged 1476 (2002) (A[A]n automotive

63

vehicle not operated on rails, esp: one with rubber tires for use on highways.@); American

Heritage Dictionary of the English Language 1148 (4th ed. 2000) (AA self-propelled wheeled

conveyance, such as a car or truck, that does not run on rails.@).

64 Duncan v. USAA Ins. Co., 950 So. 2d 544, 548 (La. 2006); A.I.U. Ins. Co., 404 So. 2d

at 949.

65 Gray, 977 So. 2d at 845.

66 Id.

67 Hotard v. State Farm Fire & Cas. Co., 286 F.3d 814, 819 (La. 2002).

21

Case: 12-31273 Document: 00512513615 Page: 22 Date Filed: 01/27/2014

No. 12-31273

III. CONCLUSION

We agree with the district court=s holding that Louisiana=s UM statute

may apply to out-of-state accidents. We conclude, however, that a forklift is a

Amotor vehicle@ for the purposes of the part of Title 22, Section 1295 of the

Louisiana Revised Statutes that identifies the uninsured or underinsured

motor vehicle. We therefore reverse the district court=s judgment dismissing

the Boyetts= action and remand this case for further proceedings consistent

with this opinion.

REVERSED AND REMANDED.

22

Case: 12-31273 Document: 00512513615 Page: 23 Date Filed: 01/27/2014

No. 12-31273

W. EUGENE DAVIS, Circuit Judge, dissenting.

I respectfully dissent from the majority’s decision holding that a forklift

qualifies as a “motor vehicle” under Louisiana’s uninsured motorist (“UM”)

statute, La. Rev. Stat. § 22:1295. I am persuaded that the definition of “motor

vehicle” under La. Rev. Stat. § 22:1295(1)(a)(i) necessarily excludes all vehicles

which are not designed for use on public highways and required to be

registered in Louisiana, and thus excludes forklifts. I reach this conclusion

based on the statutory language of Section 1295 and on related Louisiana

statutes.

Section 1295(1)(a)(i) provides, in relevant part:

(1)(a)(i) No automobile liability insurance covering

liability arising out of the ownership, maintenance, or

use of any motor vehicle shall be delivered or issued

for delivery in this state with respect to any motor

vehicle designed for use on public highways and

required to be registered in this state or as

provided in this Section unless coverage is provided

therein or supplemental thereto, in not less than the

limits of bodily injury liability provided by the policy,

under provisions filed with and approved by the

commissioner of insurance, for the protection of

persons insured thereunder who are legally entitled to

recover nonpunitive damages from owners or

operators of uninsured or underinsured motor

vehicles because of bodily injury, sickness, or disease,

including death resulting therefrom; however, the

coverage required under this Section is not applicable

when any insured named in the policy either rejects

coverage, selects lower limits, or selects economic-only

coverage, in the manner provided in Item (1)(a)(ii) of

this Section. In no event shall the policy limits of

an uninsured motorist policy be less than the

minimum liability limits required under R.S.

32:900, unless economic-only coverage is selected as

authorized in this Section. . . . (emphasis added)

23

Case: 12-31273 Document: 00512513615 Page: 24 Date Filed: 01/27/2014

No. 12-31273

It seems clear to me that the Louisiana legislature intended all instances

of “motor vehicle” in this statute to be defined as one “designed for use on public

highways and required to be registered in this state.” Within the same

statutory subsection, there is no need to repeat the definition each time the

term “motor vehicle” is used. Moreover, this reading is consistent with related

Louisiana statutes mandating liability insurance.

The Louisiana Motor Vehicle Safety Responsibility Law (“LMVSRL”),

La. Rev. Stat. § 32:851 et seq., requires an owner to obtain minimum liability

coverage for “[e]very self-propelled motor vehicle registered in this state,”

subject to certain exceptions. 1 Thus, even though the LMVSRL defines “motor

vehicle” broadly to include “every self-propelled vehicle (except traction

engines, road rollers, farm tractors, tractor cranes, power shovels, and well

drillers) and every vehicle which is propelled by electric power obtained from

overhead wires but not operated upon rails,” 2 the compulsory liability

insurance requirement applies only to vehicles which must be registered under

Louisiana law. La. Rev. Stat. § 32:851(12) provides that “‘Registration’

includes a registration certificate or certificates and registration plates issued

under the laws of this state pertaining to the registration of motor vehicles.”

Louisiana’s vehicle registration laws are found in Title 47 of the

Louisiana Revised Statutes. Most relevantly, La. Rev. Stat. § 47:501(A)

provides: “Every owner of a motor vehicle, trailer, or semitrailer, or other

vehicle intended to be operated upon the public highways in this state

shall, before operating the same, apply to the secretary of the Department of

Public Safety and Corrections for and obtain the registration thereof and pay

1 La. Rev. Stat. § 32:861(A)(1).

2 La. Rev. Stat. § 32:851(4).

24

Case: 12-31273 Document: 00512513615 Page: 25 Date Filed: 01/27/2014

No. 12-31273

the state registration or license tax imposed by this Chapter, . . .” (emphasis

added). There are certain exemptions to registration even for vehicles which

occasionally operate on the highway, but the essential point is that if a vehicle

is not intended to be operated upon the public highways, it is not subject to the

general motor vehicle registration laws and thus not subject to the requirement

to obtain compulsory liability insurance.

Taking the statutory framework as a whole, it is clear to me that a

vehicle which is not designed for highway use and not required to be registered

is not subject to the compulsory liability insurance requirement under La. Rev.

Stat. § 32:861. This is precisely the exemption to UM coverage set out in

Section 1295(1)(a)(i) (“any motor vehicle designed for use on public highways

and required to be registered in this state”). UM coverage is thus intended to

fill a coverage gap in the event another driver fails to obtain mandatory

liability insurance as required by the LMVSRL, La. Rev. Stat. § 32:851 et seq.

Indeed, the minimum liability limits for UM coverage under Section

1295(1)(a)(i) are established by reference to La. Rev. Stat. § 32:900, part of the

LMVSRL.

In short, I conclude from the statutory framework that the Louisiana

legislature intended UM coverage to mirror the mandatory coverage required

by the LMVSRL. To read the second instance of “motor vehicle” in Section

1295(1)(a)(i) broadly to include even vehicles not designed for use on public

highways and not required to be registered in Louisiana would expand the

scope of UM coverage far beyond the scope of mandatory liability coverage.

Thus, I remain convinced that the phrase “motor vehicle” in Section

1295(1)(a)(i) must be interpreted in all instances as being limited to one

“designed for use on public highways and required to be registered in this

state.” Accordingly, I would affirm the district court’s holding that the forklift

25

Case: 12-31273 Document: 00512513615 Page: 26 Date Filed: 01/27/2014

No. 12-31273

was not a “motor vehicle” and no UM coverage was available under Redland’s

policy.

26