* Pursuant to 5 TH C IR

. 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opinion should not be published and is not precedent except under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 5 TH C IR . R. 47.5.4.

-1- UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-30230

Summary Calendar

Millers Mutual Fire Insurance Company, Inc.,

Plaintiff-Appellant,

VERSUS

Terral Seed, Inc.,

Defendant-Appellee.

Appeal from the United States District Court

For the Western District of Louisiana

(01-CV-44)

August 19, 2002

Before DeMOSS, PARKER and DENNIS, Circuit Judges.

PER CURIAM: *

BACKGROUND

Terral Seed, Inc. (“Terral”) sells various agricultural

products, including seed, fertilizer, grain, and pesticides.-2-

Terral is an authorized applicator of Fipronil/Icon. Fipronil/Icon

is applied to rice seed at the customer’s request. During the crop

year of 1999 and 2000 various rice and crawfish farmers purchased

r ice seed from Terral which had been treated with Fipronil/Ic on.

The treated rice seed was applied to rice/crawfish fields by a crop

duster. The treated seed caused a crawfish mortality which

resulted in damage to the crops. Several suits were brought

against Terral by different farmers.

Millers Mutual Fire Insurance Company, Inc. (“Millers”) issued

an agribusiness insurance policy to Terral that was in force during

the time the damage occurred to the rice/crawfish crop. The policy

provided cove rage for general commercial liability. Millers was

required to pay any sums which Terral was legally obligated to pay

due to property damage. However, Millers denied coverage on the

basis that the insurance policy contained an exclusion for damage

caused by “seed.” Millers filed an action seeking a declaratory

judg ment that the policy excluded coverage. The district court

g ranted summary judgment in favor of Terral, finding that the

damage was caused by the Fipronil/Icon and not the seed.

Furthermore, the court found that the language of the policy was

ambiguous and thus must be construed in favor of coverage. Millers

appeals.

ANALYSIS

We have jurisdiction based on 28 U.S.C. § 1332. When-3-

confronted with a diversity case arising under state law, we must

apply the law of that state. Erie R.R. Co. v. Tompkins , 304 U.S.

64, 78 (1938). We are emphatically not permitted to do merely what

we think best; we must do that which we think th e [Louisiana]

Supreme Court would deem best. Nautilus Ins. Co. v. Zamora

, 114

F.3 d 536, 538 (5th Cir. 1997). We review the district court's

interpretation of an insura nce contract and its exclusions as a

question of law and, thus, is subject to de novo rev iew. Lubbock

County Hosp. Dist. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa.

,

143 F.3d 239, 242 (5th Cir. 1998).

Louisiana law requires that interpretatio n of an insurance

policy be subject to the general rules of contract interpretation.

La. Ins. Guar. Ass ’n v. Interstate Fire & Cas. Co. , 630 So. 2d.

759, 763 (La. 1994). Our role when interpreting an insurance

contract is to determine the common intent o f the parties. I d. ;

see L A

. C IV

. C ODE A NN

. art. 2045 (West 2001). “The parties' intent

as reflected by the words in the policy determ ine the extent of

covera ge.” I d. “When the words of the contract are clear and

explicit a nd lead to no absurd consequences, no further

interpretation may be made in search of the parties' intent." LA.

C IV

. C ODE A NN

. art. 2046 (West 2001); see Amoco Prod. Co. v. Tex.

Meridian Res. Exploration Inc.

, 180 F.3d 664, 667 (5th Cir. 1999).

We construe the intent of the parties to an insurance contract to

b e determined “in accordance with the general, ordinary, plain,-4-

and proper meaning . . . unless [they] have acquired a technical

meaning.” C arbon v. Allstate Ins. Co

., 719 So. 2d 437, 440 (La.

1998); s ee L A

. C IV

. C ODE A NN

. art. 2047 (West 2001).

Exclusions from t he policy must be clearly set forth and

unambiguous. When the language is clear and unambiguous it must be

enforced as written. R eynolds v . Select Props. Ltd. , 634 So. 2d

1180, 1183 (La. 1994). See also Edwards v. Your Credit Inc. , 148

F.3d 427, 444 (5th Cir. 1998). When applying Louisiana law courts

should not “strain to find ambiguities, if, in so doing, they

defeat probable intentions of the parties.” Sharp v. Fed. Sav. &

Loan Ins. Corp.

, 858 F.2d 1042, 1045 (5th Cir. 1988). This remains

true even if the result is an apparently harsh conse quence. I d.

However, if the terms of the policy are ambiguous, they must be

construed against the drafter. I d. S ee also Meredith v. La. Fed’n

of Teachers , 209 F.3d 398, 407 (5th Cir. 2000).

The relevant portion of the insurance policy provides:

This insurance does not apply to “bodily injury” or

“property damage” included in the “products-completed

operations hazard” and arising out of any of “your

products” shown in the Schedule.

The Schedule contains the single word “SEED.” No further

definition of the term is provided.

The dispute centers on t he meaning of the word “seed.” We

must determine what the parties intended to exclude from coverage

by adding the word “seed” to the Schedule. We find that when given-5-

its ordinary meaning the term “seed” is clear and unambiguous.

Using the ordinary meaning does not lead to absurd c onsequences

and, thus, our inquiry into the parties’ intent ceases.

Terral argues that the damage to the crawfish was done only by

the Fipronil/Icon and that the rice seed had nothing to do with it.

Terral also asserts that this question creates an ambiguity within

the language of the policy. Therefore, the seed exclusion would

not apply and must be enforced in favor of coverage. We disagree.

“The fact that one party can, in hindsight, create a dispute about

the meaning of a contractua l provision does not render the

provision ambiguous.” L loyds of London v. Transcon. Gas Pipe Line

Corp.

, 101 F.3 d 425, 429 (5th Cir. 1996). We do not see any

ambiguity in the original contract. The alleged ambiguity has been

created with the aid of hindsight.

Terral’s argume nt also ignores the fact that it was a

Fipronil/ Icon rice seed that was put into the field

. It was a

single unit. When the Fipronil/Icon treatment was applied, the

pesticide became part of the seed. The treatment caused the rice

seed to become a different type of seed. Nevertheless, it was

still a seed. Before the treatment, it was an ordinary rice seed.

After the treatment, it was a Fipronil/Icon rice seed. The damage

was done by a Fipronil/Ic on rice seed. Even after applying a

treatment to a seed it is still classified as a seed.

Congress has followed a similar line of reasoning in the-6-

Fe deral Seed Act. 7 U.S.C. § 1551 e t seq. (2002). When dealing

with agriculture under Title 7, Congress has specifically devoted

Chapter 37 to seeds. I d. Within the broad category of seeds

Congress inc ludes “treated” seeds. S ee § 1561(23). “The term

"treated" means given an application of a substance or subjected to

a process designed to reduce, control, or repel disease organisms,

insects or other pests which attack seeds or seedlings growing

therefrom.” I d. The fact that a treatment is applied to the seeds

to reduce or repel disease or pests does not prevent the seeds from

being considered seeds under the Federal Seed Act. We agree with

the reasoning of Congress; a treated seed is still a seed.

Moreover, the words of the contract are clear and explicit and

do not lead t o any absurd consequences. By including the term

“seed,” the parties inten ded to exclude all seed from coverage.

Any other reading would lead to an absurd result. For example, if

we were to find that the exclusion included whit e seed, but not

brown seed, it would be an absurd conclusion because there is

nothing in the policy to indicate such an intent. Likewise, to

find that the exclusion encompasses non-treated seed, but not

treated seed, would be absurd and go against the clear and explicit

language in the policy. There is nothing in the language to

indicate an intent to exclude only certain types of se eds. The

policy simply includes all “seed.” Had the parties intended to

exclude only certain types of seed, the specific exclusions would-7-

have been enumerated in the policy.

Terral suggests, if Millers had intended for “seed” to include

seed treated with a pesticide, it should have “said so clearly and

expressly.” On the contrary, Millers did clearly and expressly

include all types of seed. The exclusion does not attempt to

include some seeds while leaving others out, it simply says “seed.”

Under Terral’s theory, to achieve the result of excluding all seed,

Millers would have been required to list every imaginable variety

of seed. For example, the policy would begin to look something

like th is: Arugula Seed, Bean Seed, Beet Seed, Broccoli Seed,

Brussels Sprout Seed, Cabbage Seed, Cantaloupe Seed, Carrot Seed,

Cauliflower Seed, Corn Seed, Cucumber Seed, Eggplant Seed, Garden

Huckleberry Seed, Gourd Seed, Ground Cherry Seed, Kale Seed, Leek

Seed, Lettuce Seed, Okra Seed, Onion Seed, Pea Seed, Pepper Seed,

Radish Seed, Brown Rice Seed, White Rice Seed, Spinach Seed, Squash

Seed, Swede Turnip Seed (Rutabega), Swiss Chard Seed, Tomato Seed,

Tomatillo Seed, Turnip Seed, Watermelon Seed, Bird Seed, Tall

Fescue Grass Seed, Kent ucky Bluegrass Seed, Perennial Ryegrass

Seed, Geranium Seed, Impati ens Seed, Marigold Seed, Pansy Seed,

Sunflower Seed, Sweet Pea See d, Dill Seed, Hyssop Seed, Lavender

Seed, Lemon Seed, Oregano Seed, Parsley Seed, Peppermint Seed,

Rosemary Seed, Sage Seed, Thyme Seed.

The list only begins to scratch the surface of the numerous

types of seeds and their varieties. The list would become

extremely long and still run the risk of inadvertently omitting1 An “un usual houseplant or conversation plant from the

Himalayas. The thick 4' tall fleshy petiole (stalk) emerges in

early June, adorned by two tropical looking palmate green leaves

near the top. As the leaves unfurl, the pitcher that tops the stem

opens to reveal a green jack-in-the-pulpit flower, but with a whiplike tongue that extends from the mouth of the flower upwards to 12

or more inches.” http://www.seedman.com/limited.htm (July 12,

2002). S ee also h ttp://www.npr.org/programs/talkingplants/

profiles/arisaema.html (July 12, 2002).

-8- unusual seeds such as the Whipcord Cobra Lily Arisaema tortuosum

s eed. 1 Furthermore, this method would have created additional

c onfusion. Instead, Millers chose, and Terral agreed to, the

simpler method of excluding “seed” from coverage. We find this

simpler method perfectly acceptable. The use of the term “seed” to

include all seeds is clear and unambiguous. It encompasses all

varieties, mixtures, groups, sizes, categories, and types of seed.

Finally, the fact that the term “seed” was included in the

policy suggests an intent of the parties to exclude seed that had

a poten tial for causing harm to persons or property. Such an

intent is demonstrated because there would be no reason to exclude

harmless seed from an insurance poli cy which covers damage to

persons or property. We are left to conclude that the reason for

the exclusion was to limit Millers liability from damage caused by

harmful seeds such as those treated with dangerous chemicals.

CONCLUSION

We cannot find any ambiguity wi thin the language of the

policy. The word “seed” is not susceptible to greater than one-9-

reasonable interpretation. It is just what it says; “seed.” The

intent of the parties at the time of contracting was to exclude all

“seed” from coverage. Because “seed” was excluded from the

insurance policy, Millers has no liability for the damage caused by

the Fipronil/Icon rice seed. Finding no ambiguity, the insurance

policy must be enforced as written. We reverse the decision of

the district court and remand for proceeding not inconsistent with

this opinion.

JUDGMENT REVERSED and REMANDED.