Allstate Ins. Co. v. Garnette Bell

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 96-1330
___________

Allstate Insurance Company, *
*
Appellee, *
*
v. *
* Appeal from the United
States
Mark Burrough, * District Court for the
* Western District of
Arkansas.
Defendant, *
*
Garnette Bell, individually and as next *
friend of Kenyatta Williams, *
*
Appellant. *
___________

Submitted: September 13, 1996
Filed: July 23, 1997
___________

Before McMILLIAN, MAGILL,1 and MORRIS SHEPPARD ARNOLD,
Circuit Judges.
___________

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)

1
The Honorable Frank J. Magill was an active judge at the time this case was
submitted and assumed senior status on April 1, 1997, before the opinion was filed.
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 court2 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.

I.

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.”

2
The Honorable H. Franklin Waters, Chief Judge, United States District Court
for the Western District of Arkansas.
-2-
 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

-3-
 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.

3
The district court found that Hauser “was approximately 16 at the time of the
shooting,” Allstate Ins. Co. v. Burrough, 914 F. Supp. 308, 310 (W.D. Ark. 1996), but
according to Hauser’s voluntary statement to the police given on October 23, 1993, he
was fifteen years old at the time. See Jeremiah Hauser Voluntary Statement (Oct. 23,
1993) at 1, reprinted in Appellee’s App. at 30.
-4-
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

-5-
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.

-6-
 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

-7-
[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

-8-
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,]

-9-
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.

II.

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

-10-
favor of the insured and strictly against the insurer.”
Noland v. Farmers Ins. Co., 892 S.W.2d 271, 272 (Ark.
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 which is plainly excluded and for which it was not
paid.” Smith v. Shelter Mut. Ins. Co., 937 S.W.2d 180,
182 (Ark. 1997) (quotations and citations omitted).
Rather, we must

-11-
“adhere to the longstanding rule that, where the terms of
the policy are clear and unambiguous, the policy language
controls . . . .” Id. at 181.

Under Arkansas law, “absent statutory strictures to
the contrary, exclusionary clauses are generally enforced
according to their terms.” Id. Although ambiguous
language in an exclusionary clause “should be construed
in favor of the insured,” State Farm Fire & Cas. Co. v.
Midgett, 892 S.W.2d 469, 471 (Ark. 1995) (quotations
omitted), such “ambiguity exists . . . only when a
provision is susceptible to more than one reasonable
interpretation.” Id. “The initial determination of
whether a contract is ambiguous rests with the court, and
when a contract is unambiguous, its construction is a
question of law for the court.” Hartford Fire Ins. Co.
v. Carolina Cas. Ins. Co., 914 S.W.2d 324, 326 (Ark. Ct.
App. 1996).

To prevail on its summary judgment motion in this
declaratory judgment action, Allstate had the burden of
proving as a matter of law that Burrough fell within the
criminal acts exclusion. See Arkansas Farm Bureau Ins.
Fed’n v. Ryman, 831 S.W.2d 133, 134-35 (Ark. 1992)
(holding that an insurer has the burden of proving that
an insured fell within an insurance policy exclusion).
To fit within the terms of the criminal acts exclusion,
Allstate needed to prove (1) that Burrough committed a
“criminal act” and (2) that Burrough could have
reasonably expected Williams’s injury to have resulted

-12-
from that criminal act.4 Bell first presents two related
arguments that challenge the first prong of this two-part
analysis.

A.

Bell argues that, although furnishing a gun to a
minor is a criminal act under Arkansas law when committed
by an adult, it is merely a delinquent act when

4
Allstate has not argued that Williams’s injuries were the intended or expected
result of an intentional act committed by Burrough.
-13-
committed by a minor. According to Bell, it is therefore
unclear whether Burrough, a minor when he gave the
handgun to Hauser, committed a criminal act for purposes
of Allstate’s criminal acts exclusion. Bell thus argues
that the criminal acts exclusion is ambiguous and should
be construed against Allstate to find coverage for
Burrough’s act of furnishing a handgun to Hauser. We
disagree.

Under § 5-73-109(a) of the Arkansas Criminal Code,
Ark. Code Ann. §§ 5-1-101 to -76-106 (Michie 1993 & Supp.
1995), “[a] person commits the offense of furnishing a
deadly weapon to a minor when he sells, barters, leases,
gives, rents, or otherwise furnishes a firearm or other
deadly weapon to a minor without the consent of a parent,
guardian, or other person responsible for general
supervision of his welfare.” Ark. Code Ann. § 5-73-
109(a) (Michie 1993). A minor is “any person under
eighteen (18) years of age.” Ark. Code Ann. § 5-73-
101(2) (Michie 1993).

In the present action, it is undisputed that Burrough
furnished a .22 caliber handgun to Hauser, who at the
time was a minor. It is also undisputed that no
responsible adult consented to the transfer.
Consequently, Burrough’s act of giving the handgun to
Hauser satisfied all the elements of the criminal offense
of furnishing a deadly weapon to a minor.

We recognize that Burrough, who was fourteen years
old when he handed over the handgun to Hauser, could not
be charged with or convicted of a § 5-73-109(a) offense
in a criminal proceeding. Arkansas’s juvenile courts

-14-
would have exclusive jurisdiction over Burrough with
respect to a § 5-73-109(a) offense. Compare State v.
Gray, 891 S.W.2d 376, 377 (Ark. 1995) (holding that the
“jurisdiction of the juvenile court is exclusive and
original with respect to all offenses charged against a
juvenile who is fourteen years old at the time of the
commission of those offenses, with the exception of
certain offenses enumerated in Ark. Code. Ann. § 9-27-
318(b)(1) (Repl. 1991)” (emphasis in original)) with Ark.
Code Ann. § 9-27-318(b)(1) (Michie 1993) (granting
prosecutorial discretion to charge fourteen-year-olds as
adults with certain

-15-
enumerated offenses, not including § 5-73-109(a)).
Therefore, for the act of furnishing a deadly weapon to
Hauser, Burrough could only be adjudged a juvenile
delinquent in a juvenile court. See Arkansas Juvenile
Code of 1989, Ark. Code Ann. § 9-27-301 to -352 (Michie
1993) (setting forth provisions dealing with juvenile
delinquency).

Although Burrough’s status as a juvenile prevents him
from being tried as an adult, the offense he committed is
still a criminal act. Neither § 5-73-109(a) nor the
provisions dealing with juvenile delinquency incorporate
an age-based exception to the offense of furnishing a
deadly weapon to a minor. Instead, § 5-73-109(a) applies
to any “person” who furnishes a deadly weapon to a minor,
see § 5-73-109(a), and the Arkansas Criminal Code
recognizes that a minor, such as Burrough, is a “person.”
See § 5-73-101(2).

Regardless of whether he could be tried as an adult
or be adjudged a juvenile delinquent, under the plain
language of the Arkansas Criminal Code, Burrough
committed an act defined as criminal. Hence, he
committed a criminal act for purposes of Allstate’s
criminal acts exclusion. Cf. Butler v. State, 922 S.W.2d
685, 689 (Ark. 1996) (construing Ark. Code Ann. § 9-27-
318(a) (Michie 1993) to hold that the state prosecutor
had to file “theft charges” in juvenile court against a
minor who was fifteen years old at the time that he
committed offenses in violation of the Arkansas Criminal
Code before the prosecutor could move to transfer the
“charges” to circuit court); Eichelberger v. State, 916
S.W.2d 109, 110-12 (Ark. 1996) (In holding that

-16-
application of a newly-enacted, punitive law “increased
the burden of the punishment” to juveniles and thereby
violated the Ex Post Facto Clause because application of
the newly-enacted law “makes more burdensome the
punishment for a crime, after its commission,” the court
impliedly recognized that two minors, who had been
adjudged delinquent, had committed a crime. (emphasis in
original)); Johnson v. State, 888 S.W.2d 661, 661 (Ark.
1994) (“Appellant was adjudged a juvenile delinquent for
committing the crimes of rape and robbery.”).

-17-
 Given Allstate’s clear intention to exclude coverage
for criminal acts, Bell cannot create an ambiguity merely
by drawing a distinction based on the potential
consequences that flow from Burrough’s conduct. Nearly
every reported federal court decision interpreting
Allstate’s criminal acts exclusion has also concluded
that the criminal acts exclusion applies to minors. See
Allstate Ins. Co. v. Green, 831 F.2d 145, 147 (6th Cir.
1987) (“Under this language it is clear that if young
Robertson[, a fourteen-year-old boy,] had raped the girl
himself, his act would have been an intentional or
criminal act of an insured person and there would have
been no coverage for either of the Robertsons.”)
(Michigan law); Allstate Ins. Co. v. Cutcher, 920 F.
Supp. 796, 798-99 (N.D. Ohio 1996) (holding that, under
Ohio law, criminal acts exclusion is applicable to a
juvenile adjudged to be delinquent); Allstate Ins. Co. v.
Dillard, 859 F. Supp. 1501, 1504 (M.D. Ga. 1994) (holding
that, under Georgia law, criminal acts exclusion applies
to acts of a minor), aff’d, 70 F.3d 1285 (11th Cir.
1995); Allstate Ins. Co. v. Carmer, 794 F. Supp. 871, 873
(S.D. Ind. 1991) (holding that criminal acts exclusion
applies to acts committed by a fourteen-year-old boy
because those acts constitute a violation of the Indiana
Criminal Code); but see Allstate Ins. Co. v. Lewis, 732
F. Supp. 1112, 1114-15 (D. Colo. 1990) (holding that,
under Colorado law, criminal acts exclusion does not
apply to the acts of a minor).

Finally, it makes no difference whether Burrough was,
or ever will be, adjudged a juvenile delinquent or
criminally convicted. Under the terms of the criminal
acts exclusion, coverage for bodily injury reasonably

-18-
expected to result from a criminal act is excluded
“regardless of whether or not such insured person is
actually charged with, or convicted of a crime.” Policy,
reprinted in Appellee’s App. at 7 (emphasis omitted).
Thus, as long as Williams’s injury was the reasonably
foreseeable result of Burrough’s criminal act, coverage
is excluded regardless of whether the state of Arkansas
ever takes action against Burrough.

-19-
 B.

Bell also argues that a reasonable insured, in
purchasing a homeowner’s insurance policy from Allstate,
would not understand or realize that the criminal acts
exclusion contained in that policy excluded coverage for
the act of furnishing a handgun to a minor. Consequently, Bell
argues that the criminal acts exclusion should be
construed against Allstate. We disagree.

As a party to a contract governed by Arkansas law, a
reasonable insured would understand that a criminal acts
exclusion would exclude coverage for acts defined as
criminal by the Arkansas Criminal Code. Under the
Arkansas Criminal Code, moreover, a violation of § 5-73-
109(a) is not such a minor offense that an insured could
not reasonably understand that offense to be criminal.
At the time Burrough gave the .22 caliber handgun to
Hauser, a violation of § 5-73-109(a) was defined as a
Class A misdemeanor, see Ark. Code Ann. § 5-73-109(b),
punishable by up to one year in prison. Ark. Code Ann.
§ 5-4-401(b)(1) (Michie 1993).5 Although Burrough, as a
minor, would not have faced the same sentence if he had
been adjudged a delinquent, the juvenile court could at
its discretion have committed him to a youth services
center, see Ark. Code Ann. § 9-27-330(3) (Michie 1993),

5
Currently, furnishing a handgun to a minor is classified as a Class B felony, see
Ark. Code Ann. § 5-73-109(b)(1) & (9) (Michie 1993 & Supp. 1995). A person
criminally convicted of such an offense faces a sentence of imprisonment of “not less
than five (5) years nor more than twenty (20) years.” Ark. Code Ann. § 5-4-401(a)(3)
(Michie 1993).
-20-
or placed him on probation. See Ark. Code Ann. § 9-27-
330(4) (Michie 1993).

Given the potential loss of liberty for furnishing a
handgun to a minor, a reasonable insured would realize
that such an act is a criminal act. Any other
interpretation of the criminal acts exclusion by this
Court would rewrite the clear terms of Allstate’s policy
and force Allstate to bear a risk “which is plainly
excluded and for

-21-
which it was not paid.” Smith, 937 S.W.2d at 182
(quotations and citations omitted).
III.

Bell argues that Allstate did not meet its burden of
proving as a matter of law that Burrough could have
reasonably expected Williams’s injury to have resulted
from his act of furnishing a handgun to Hauser. We
disagree.

To determine whether Allstate met its burden, we must
determine whether a reasonable person would find that
Williams’s injuries were the natural, probable, and
foreseeable consequence of Burrough’s actions. Cf. CNA
Ins. Co. v. McGinnis, 666 S.W.2d 689, 690-91 (Ark. 1984)
(applying an objective standard in construing “an
[insurance policy] exception excluding coverage for
personal injury which is ‘expected or intended’ by the
insured” to mean “the policy exception excludes coverage
for injuries which the average run of reasonable people
would expect or intend to inflict by engaging in the
conduct in question”); Mahan v. Hall, 897 S.W.2d 571, 573
(Ark. 1995) (applying objective definition of
negligence); Bushong v. Garman Co., 843 S.W.2d 807, 812
(Ark. 1992) (applying objective definition of
unreasonably dangerous); Allstate Ins. Co. v. Brown, 16
F.3d 222, 225 (7th Cir. 1994) (holding that, under
Indiana law, an objective standard must be applied to
interpret a criminal acts exclusion nearly identical to
the criminal acts exclusion at issue in the present
action and that “[t]he phrase [’reasonably expected’] is
meant to ensure that the policy’s exclusions apply only

-22-
to those injuries most likely to result from the
insured’s intentional or criminal conduct.”).

The undisputed material facts demonstrate that a
reasonable person would have expected Williams’s injuries
to result from the act of furnishing Hauser with a loaded
.22 caliber handgun that had previously misfired. Based
on past experience, Burrough knew that Hauser and Beck
were likely to cruise up and down Grand avenue where
teenagers hang out in the parking lots, drink beer, smoke
marijuana, and get into fights.

-23-
Furthermore, Burrough knew that, on at least one previous
occasion, Burrough and his friends had been harassed by
teenagers believed to be involved in gangs. Finally,
Burrough knew that the gun had misfired on at least one
previous occasion and that the gun was loaded when he
handed it over to Hauser.

Given this knowledge, a reasonable insured would have
expected that something would go awry after handing over
a loaded, malfunctioning handgun to Hauser. A reasonable
insured would find Williams’s injuries to be the natural,
probable, and foreseeable consequence of furnishing
Hauser with a loaded, malfunctioning handgun. We reach
this conclusion, notwithstanding the fact that Beck,
rather than Hauser, was the one who accidentally fired
the gun. Regardless of which one of Burrough’s friends
held the gun when it misfired, once Burrough handed over
a loaded, malfunctioning gun to Hauser, Burrough should
have reasonably expected that an incident like the one
that took place would happen.

IV.

For the foregoing reasons, we affirm.

McMILLIAN, Circuit Judge, dissenting.

I respectfully dissent. Because I believe that the
exclusion for “criminal acts” is ambiguous and must be
construed in favor of Burrough as a matter of law and,
alternatively, that a genuine issue of material fact
exists as to Burrough’s reasonable expectations, I would
reverse.

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 To prevail in its declaratory judgment action,
Allstate was required to prove that the policy’s criminal
acts exclusion applied to exclude Burrough from coverage
by showing that: (1) Burrough committed a criminal act
to which the criminal acts

-25-
exclusion applied6 and (2) Burrough could have reasonably
expected Williams’s injury to result from the criminal
act. See Arkansas Farm Bureau Ins. Fed’n v. Ryman, 831
S.W.2d 133, 134-35 (Ark. 1992) (an insurer has the burden
of proving that an insured fell within an insurance
policy exclusion). To prevail on summary judgment,
Allstate was required to show that no genuine issue of
material fact exists as to either of those requirements
and that it is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c); see, e.g., Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249-50 (1986); Get Away Club,
Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992); St.
Paul Fire & Marine Ins. Co. v. FDIC, 968 F.2d 695, 699
(8th Cir. 1992). For the reasons set forth below, I
would hold that the term “criminal acts” within the
policy’s criminal acts exclusion is ambiguous as applied
to minors and, accordingly, should be construed against
Allstate as a matter of law to provide coverage for
Burrough. See Keller v. Safeco Ins. Co. of Am., 877
S.W.2d 90, 92 (Ark. 1994) (Keller) (court construes
ambiguous insurance contract to justify recovery for
insured). Alternatively, I would hold that a genuine
issue of material fact exists as to whether Burrough
could have reasonably expected Williams’s injuries to
result from his act of giving the handgun to Hauser.

I. Ambiguity in the Policy’s Criminal Acts Exclusion

6
As noted in the majority’s opinion, supra at 7 n.4, Allstate did not, at any point,
claim that Burrough’s conduct fell within the “intentional acts” clause of the exclusion.
-26-
 The criminal acts exclusion is ambiguous because a
particular act may be defined as criminal in one part of
the Arkansas Code but not criminal in another part of the
Arkansas Code by virtue of the alleged wrongdoer's age.
Although furnishing a gun to a minor is a criminal act
when committed by an adult, under the Arkansas Juvenile
Code of 1989, Ark. Code Ann. §§ 9-27-301 to -368 (Michie
Repl. 1993) (the juvenile code), it is a delinquent act
when committed by a juvenile.

-27-
 The juvenile code defines, in pertinent part, a
juvenile as an individual who “[i]s under the age of
eighteen (18) years.” Ark. Code Ann. § 9-27-303(1)(A).
A delinquent juvenile is defined as “any juvenile ten
(10) years or older who has committed an act . . . which,
if such act had been committed by an adult, would subject
such adult to prosecution for a felony, misdemeanor, or
violation under the applicable criminal laws of this
state.” Id. § 9-27-303(11). Generally, when such an act
occurs, the prosecuting attorney files a delinquency
petition in the juvenile division of the chancery court
(hereinafter, juvenile court). Id. § 9-27-310. The
juvenile court has exclusive and original jurisdiction of
all offenses charged against a juvenile who is fourteen
or fifteen years old at the time of the commission of
those offenses, with the exception of certain offenses
enumerated in § 9-27-318(b)(1). Id. § 9-27-318(a)(3);
State v. Gray, 891 S.W.2d 376, 377 (Ark. 1995). For the
limited offenses listed in § 9-27-318(b)(1), none of
which is involved in this case, the prosecuting attorney
may choose either to file a petition in juvenile court
alleging delinquency or to file charges in circuit court
and prosecute the individual as an adult. See id.
§ 9-27-318(a); see also Boyd v. State, 853 S.W.2d 263,
264 (Ark. 1993) (affirming transfer of juvenile
proceeding to circuit court based upon § 9-27-318(c)).
The Arkansas Supreme Court recently disapproved of the
extent of discretion given prosecutors in prosecuting a
juvenile as an adult and issued a caveat “that in
juvenile transfer cases tried after this date, we will
consider anew our interpretation of the juvenile code,”
Sanders v. State, 932 S.W.2d 315, 319 (Ark. 1996),
indicating an intention that juveniles be protected under

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the juvenile code. Cf. McKeiver v. Pennsylvania, 403
U.S. 528, 545, 546 n.6 (1971) (the ideal of separate
treatment for children through an intimate, informal
protective juvenile proceeding “is still worth
pursuing”); Valdez v. State, 801 S.W.2d 659, 661 (Ark.
Ct. App. 1991) (“The revisions found in the Juvenile Code
of 1989 were designed to promote and further safeguard
the interests of accused juvenile offenders.”).
Because furnishing a deadly weapon in violation of
§ 5-73-109 is not an offense which is excepted from the
juvenile court’s exclusive jurisdiction under
§ 9-27-18(b)(1), Burrough, who was fourteen years old at
the time of his relevant acts,

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was not subject to criminal charges for giving the
handgun to Hauser. In holding that "[t]he criminal acts
exclusion applies so long as the insured engages in
conduct which is described as criminal in the penal code,
'regardless of whether or not such insured person is
actually charged with, or convicted of a crime,'"
Allstate Ins. Co. v. Burrough, 914 F. Supp. 308, 312
(W.D. Ark. 1996) (Burrough) (quoting Policy, reprinted in
App. for Appellee at 7) (emphasis omitted), the district
court failed to recognize the distinction between an act
for which an individual is actually charged or convicted
and an act for which an individual can be actually
charged or convicted. Under Arkansas law, Burrough
cannot be charged in circuit court or convicted
criminally of furnishing a handgun to a minor. Because
Burrough committed an act which would be a criminal act
if committed by an adult but for which he, as a fourteen-
year-old, cannot be criminally charged or convicted under
state law, the criminal acts exclusion in the policy may
be reasonably interpreted as inapplicable to these
circumstances. The criminal acts exclusion is therefore
ambiguous as applied to Burrough’s act of giving a
handgun to Hauser and must be construed to not exclude
coverage for Burrough. See Keller, 877 S.W.2d at 92.

The district court also reasoned that, because the
policy does not cover mental incompetents for their
criminal acts for which they cannot be prosecuted, it
should be construed as excluding minors for their
criminal acts for which they cannot be prosecuted.
Burrough, 914 F. Supp. at 312. However, under the
district court's reasoning, the mental incompetents
provision of the criminal acts exclusion is susceptible

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to more than one meaning as to which individuals are
included within the classification of mental
incompetents. Specifically, an insured cannot determine
whether the term “mental incompetents” includes only
individuals adjudicated mentally incompetent, or whether
it includes minors based on their legal incapacity.
Therefore, the ambiguous mental incompetents provision
must not be construed to include minors, see Keller, 877
S.W.2d at 92, and, thus, cannot be used to justify
application of the criminal acts exclusion to minors.

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 In addition to the inherent ambiguity in the phrase
“criminal acts” as applied to minors, I would also hold
that the criminal acts exclusion is ambiguous insofar as
it excludes coverage for “any bodily injury . . . which
may reasonably be expected to result from the intentional
or criminal acts . . . of, any insured person . . . even
if . . . such bodily injury . . . is of a different kind
or degree than that . . . reasonably expected.” Policy,
reprinted in App. for Appellee at 6 (emphasis omitted).
This provision creates a virtually limitless category of
acts for which the insured will not be covered under the
policy by excluding not only bodily injury which an
insured may reasonably expect to result from his
intentional or criminal act, but also, bodily injury of
a different kind or degree than that which the insured
reasonably expected. I doubt this interpretation
represents the reasonable expectations of an insured who
enters into this insurance contract. See Enterprise
Tools, Inc. & E.B. v. Export-Import Bank, 799 F.2d 437,
442 (8th Cir. 1986), cert. denied, 480 U.S. 931 (1987).
This provision is susceptible of more than one meaning as
to when bodily injury may be reasonably expected to
result from the intentional or criminal acts of an
insured and, therefore, must be construed in favor of the
possible interpretation that Burrough be denied coverage
only for injuries resulting directly from his act of
giving the gun to Hauser and not from Beck’s subsequent
acquisition of the gun and accidental shooting of
Williams. See Keller, 877 S.W.2d at 92.
Finally, my construction of the policy in favor of
coverage for Burrough does not unduly burden Allstate
because, as the insurer and drafter of the policy,
Allstate could have expressly included minors within the

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criminal acts exclusion. See Foremost Ins. Co. v.
Sheppard, 610 F.2d 551, 557 (8th Cir. 1979) (interpreting
Arkansas insurance law). Allstate failed to do so, and
I would not read such a meaning into the policy.

II. Burrough’s Reasonable Expectations

Alternatively, I would reverse on the basis that
Burrough could not have reasonably expected Williams’s
injury to result from his act because the relationship

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between Burrough’s giving the gun to Hauser and Beck’s
accidental shooting of Williams is too tenuous to qualify
for exclusion.7 I believe the district court’s disposition of this issue on
summary judgment was erroneous because Burrough’s deposition testimony, Exhibit
C, reprinted in App. for Appellee at 12-27, creates a genuine issue of material fact as
to whether Burrough could have reasonably expected Williams’s injury to result from
his act. See Talley v. MFA Mut. Ins. Co., 620 S.W.2d 260, 262 (Ark. 1975) (where
insurance policy excluded from coverage “bodily injury . . . which is either expected
or intended from the standpoint of the insured,” evidence that insured did not intend or
expect resulting injury raised a question of fact and precluded summary judgment for
insurer). Furthermore, Burrough’s reasonable expectations must be assessed in the
eyes of a reasonable fourteen-year-old. Allstate Ins. Co. v. Dillard, 859 F. Supp. 1501,
1503 (M.D. Ga. 1994) (while contract’s language excluding coverage for bodily
injuries which may “reasonably be expected to result from the intentional or criminal
acts of an insured person” focuses on objective conduct and not merely on the
subjective expectations or intentions of the insured, “the excluded injuries must be
those expected by a reasonable 13-year-old”), aff’d, 70 F.3d 1285 (11th Cir. 1995)
(table).

Accordingly, I would reverse the district court's grant of summary judgment in
favor of Allstate and remand the case to the district court with directions to enter
judgment in favor of Bell. Alternatively, I would remand the case to the district court
for a trial on the issue of Burrough’s reasonable expectations.

7
I caution that the majority opinion’s conclusion that “once Burrough handed
over a loaded, malfunctioning gun to Hauser, Burrough should have expected that an
incident like the one that took place would happen,” supra at 13, may have a preclusive
effect on the issue of causation in Bell’s state court action. Accordingly, I offer no
opinion on the issue of causation, but only express my belief that a genuine issue of
material fact exists as to Burrough’s reasonable expectations.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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