Allstate Ins. Co. v. Burrough, 96-1330

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation120 F.3d 834
Docket NumberNo. 96-1330,96-1330
PartiesALLSTATE INSURANCE COMPANY, Appellee, v. Mark BURROUGH, Defendant, Garnette Bell, individually and as next friend of Kenyatta Williams, Appellant.
Decision Date28 August 1997

Bill D. Reynolds, Fort Smith, AR, argued, for appellant.

Joe Benson, Fayetteville, AR, argued, for appellee.


MAGILL, Circuit Judge.

In response to an Arkansas state court action brought by Garnette Bell on behalf of herself and her son, Kenyatta Williams, Allstate Insurance Company (Allstate) brought this declaratory judgment action against its insured, Joel Mark Burrough, and against Bell in order to ascertain Allstate's obligation to provide coverage to Burrough. Burrough was named as one of the defendants in Bell's state court action for tort damages because of Burrough's involvement in the accidental shooting of Williams. The district court 2 granted summary judgment in favor of Allstate, ruling that a criminal acts exclusion in the policy underwritten by Allstate excluded coverage. Allstate Ins. Co. v. Burrough, 914 F.SUPP. 308, 310, 314 (W.D.ARK.1996). Bell appeals, and we affirm.


The material facts of this case are undisputed. The district court recounted the events leading up to the accidental shooting of Williams as follows:

The record shows that in August or September of 1993, defendant [Burrough], who was approximately 14 at the time, stole a .22 caliber handgun from his grandfather's residence and took it home. Over the next couple of months he showed it to his friends, including Jeremiah Hauser and Christopher Beck. Sometimes they would shoot the gun into the ground in a storage shed on defendant's property. On one occasion, while the gun was being handled by a friend of defendant's named Chad Coleman, the gun misfired even though Chad had not touched the trigger or cocked the hammer. Still, defendant and his friends thought the gun was "cool."

In addition to playing with guns, defendant and his friends would pass the time by "cruising Grand [Avenue]." Grand is a long, wide street in Fort Smith, Arkansas, populated with numerous fast food restaurants and like business establishments. Many teenagers would cruise up and down the street for hours. Also, teenagers would hang out in the parking lots of the business establishments along Grand and drink beer, smoke pot, and not infrequently, get into fights. Apparently, there was even some gang-like activity on Grand, or at least defendant and his friends thought that the "Bloods" hung out there wearing red bandannas and gang-like athletic wear. Also, teenagers who defendant and his friends believed to be involved with gangs had harassed them on one or two occasions prior to the night of the shooting.

Id. at 313.

The shooting occurred on October 22, 1993. On that day, Williams was on foot in the parking lot of a Harvest Foods grocery store in Fort Smith, Arkansas. In that same parking lot, Beck and Hauser were in a car driven by Beck. On the floorboard of Beck's car was the .22 caliber handgun that Burrough had stolen from his grandfather. As Beck and Hauser drove by Williams, Beck "flashed" the .22 caliber handgun towards Williams. The handgun accidentally discharged, shooting Williams in the neck. The bullet severed Williams's spinal cord and left him a quadriplegic.

Beck, who was sixteen years old at the time of the shooting, had received the .22 caliber handgun from Hauser. Hauser, who was fifteen or sixteen years old at the time of the shooting, 3 had obtained the handgun from Burrough approximately two weeks prior to the shooting. Burrough was fourteen years old when he gave the gun to Hauser.

In a deposition, Burrough later testified that he gave the handgun to Hauser because Hauser was concerned that Burrough would be caught with the handgun in Burrough's possession. See Joel Mark Burrough Dep. (Feb. 20, 1995) at 22, reprinted in Appellee's App. at 19. Burrough also testified that he expected Hauser to return the handgun to him. Id. In addition, Burrough claimed that he could not remember any conversations with Hauser or Beck prior to the accidental shooting incident. See id. at 29-30, reprinted in Appellee's App. at 26-27. However, Burrough also testified that, prior to the shooting incident, Hauser and Beck told him that "they had gotten in a fight at school or something, or almost got in a fight, and they said something about something on Grand...." Id. at 29, reprinted in Appellee's App. at 26. Finally, Burrough testified that, when he gave the gun to Hauser, it was loaded with several rounds of ammunition. See id. at 30, reprinted in Appellee's App. at 27.

Bell filed her Arkansas state court action on behalf of herself and Williams, naming Beck, Hauser, and Burrough as defendants. In her complaint, Bell alleged that Beck negligently and recklessly shot Williams, proximately causing damage to her and Williams. She further alleged that Hauser and Burrough acted negligently and recklessly in providing Beck with the .22 caliber handgun, which also proximately caused damage to her and Williams. Allstate subsequently filed this declaratory judgment action in the district court against Burrough and Bell. Allstate seeks a declaration that, under the terms of a homeowner's insurance policy purchased by Burrough's father, Allstate has no obligation to provide coverage for Burrough's acts and that Allstate consequently has no duty to defend Burrough in the state court action.

The parties agree that at all relevant times Burrough was covered by the Allstate homeowner's insurance policy purchased by Burrough's father. The policy obligates Allstate to pay, "[s]ubject to the terms, conditions and limitations of this policy, ... damages which an insured person becomes legally obligated to pay because of bodily injury or property damage arising from an occurrence to which this policy applies...." Allstate Deluxe Plus Homeowners Policy, § II, Coverage X Family Liability Protection (Policy), reprinted in Appellee's App. at 6 (emphasis in original). The policy further provides that "[i]f an insured person is sued for these damages, we [Allstate] will provide a defense with counsel of our choice, even if the allegations are groundless, false or fraudulent." Id. (emphasis in original).

In its declaratory judgment action, Allstate moved for summary judgment, asserting that, although Burrough was insured under the policy at the time of Williams's shooting, coverage was excluded by operation of the policy's criminal acts exclusion. The criminal acts exclusion provides that:

Losses We Do Not Cover Under Coverage X:

1. We [Allstate] do not cover any bodily injury or property damage intended by, or which may reasonably be expected to result from the intentional or criminal acts or omissions of, any insured person. This exclusion applies even if:

a) such insured person lacks the mental capacity to govern his or her conduct;

b) such bodily injury or property damage is of a different kind or degree than that intended or reasonably expected; or

c) such bodily injury or property damage is sustained by a different person than intended or reasonably expected.

This exclusion applies regardless of whether or not such insured person is actually charged with, or convicted of a crime.

Id., reprinted in Appellee's App. at 6-7 (emphasis in original).

The district court concluded that, although the state of Arkansas never pressed criminal charges or adjudged Burrough to be a juvenile delinquent, Burrough committed a criminal act under Arkansas law. Burrough, 914 F.Supp. at 311-12. Specifically, the district court found that Burrough had committed the offense of furnishing a deadly weapon to a minor, in violation of Arkansas Code Annotated § 5-73-109. Burrough, 914 F.Supp. at 311-12. In addition, the district court concluded that "[Burrough] should have reasonably expected that someone might be killed or injured when [Burrough] committed the criminal act of providing a minor[, Hauser,] with a firearm." Id. at 314. Accordingly, the district court held that Allstate is not obligated to provide coverage for Burrough's role in the accidental shooting incident. Id. The district court also held that Allstate has no duty to defend Burrough in the action brought by Bell. Id. Bell appeals.


On appeal, we review the district court's grant of summary judgment to Allstate de novo. See McCormack v. Citibank, N.A., 100 F.3d 532, 537 (8th Cir.1996). Summary judgment is appropriate only if the record, viewed in the light most favorable to the nonmoving party, presents no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id.; see also Fed.R.Civ.P. 56(c). A grant of summary judgment is proper "[w]here the unresolved issues are primarily legal rather than factual...." Bank of America Nat'l Trust & Savings Ass'n v. Shirley, 96 F.3d 1108, 1111 (8th Cir.1996).

A federal court's interpretation of an insurance policy in a diversity case is governed by state law, and accordingly, our interpretation of Allstate's insurance policy in this case is governed by Arkansas law. See Dupps v. Travelers Ins. Co., 80 F.3d 312, 313 (8th Cir.1996). "We review the district court's interpretation of Arkansas law de novo." Id.

Under Arkansas law, "an insurance policy, having been drafted by the insurer without consultation with the insured, is to be interpreted and construed liberally in favor of the insured and strictly against the insurer." Noland v. Farmers Ins. Co., 319 Ark. 449, 892 S.W.2d 271, 272 (1995). However, the Arkansas Supreme Court has cautioned that "[t]he terms of an insurance contract are not to be rewritten under the rule of strict construction against the company issuing it so as to bind the insurer to a risk...

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