* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 29 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
LELA COYLE, Plaintiff-Appellant,
v. STATE FARM FIRE AND CASUALTY COMPANY; STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendants-Appellees. No. 96-7116 (D.C. No. CV-96-054-B) (E.D. Okla.)

ORDER AND JUDGMENT *
Before BRORBY, EBEL, and KELLY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 It is undisputed State Farm Fire and Casualty Company insured the motor

home under the Coyle’s homeowners insurance policy. However, it is unclear whether State Farm Mutual Automobile Insurance Comp any also insured the motor home. For purposes of our disposition, it is not necessary to resolve this issue.

2In her June 20, 1996, amended complaint, Ms. Coyl e added a claim for loss of consortium based on injuries suffered by Mr . Coyle as a result of Mr. Hallman’s alleged alterations of the motor home. H owever on appeal, Ms. Coyle does not challenge the district court’s dismissal o f her loss of consortium claim. Therefore, Ms. Coyle waived this issue. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994).
-2- Ms. Lela Coyle appeals the district court's October8, 1996, Order granting summary judgment in favor of State Farm Fire and Ca sualty Company and State Farm Mutual Automobile Insurance Company (collectiv ely "State Farm") and dismissing her claims.
On May 25, 1994, Ms. Coyle's daughter, Barbara Bote ilho, was electrocuted in the motor home owned by Ms. Coyle and her husban d, Mr. Sid Coyle, and insured by State Farm. 1 Thereafter, State Farm hired Mr. Dave Hallman to investigate the incident.
On February 6, 1996, Ms. Coyle commenced this actio n against State Farm for damages in relation to State Farm's breach of i ts duty to fairly investigate the death of her daughter. 2 Ms. Coyle alleged State Farm directed Mr. Hallman to3 In its response, State Farm argues Ms. Coyle lack s standing to maintain a

claim for the wrongful death of her daughter. Howe ver, we need not address this assertion in light of our disposition.
-3- conduct the investigation in such a manner as to de prive her of her rights under the insurance policy.
On October 8, 1996, the district court granted Stat e Farm's motion for summary judgment and dismissed Ms. Coyle's claim. The district court determined Ms. Coyle's claim was a claim for breach of implied duty of good faith and fair dealing brought as a third party cla imant rather than a first party insured. The district court, therefore, concluded Ms. Coyle may not recover on her claim under Oklahoma law and dismissed the clai m.
On appeal, Ms. Coyle contends the district court erred in determining she could not bring a bad faith claim against State Far m for an alleged breach of its duty to investigate. Ms. Coyle argues the districtcourt erred in holding an insurer owes no duty of good faith and fair dealing to an i nsured when the insured asserts a claim against a co-insured or to a third party cl aimant. 3
We review the district court's grant or denial of s ummary judgment de-4-

novo , applying the same standard used by the district c ourt. Applied Genetics Int’l Inc. v. First Affiliated Sec., Inc. , 912 F.2d 1238, 1241 (10th Cir. 1990). Summary judgment is appropriate when "there is no g enuine dispute as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Because the district court' s jurisdiction over this matter was based on diversity of citizenship, the districtcourt must ascertain and apply the substantive law of the forum state, Oklahoma, w ith the objective of reaching the same result as that which would be reached in a n Oklahoma court. See Brodie v. General Chemical Corp. , 112 F.3d 440, 442 (10th Cir. 1997); May v. National Union Fire Ins. Co. of Pittsburgh , 84 F.3d 1342, 1345 (10th Cir. 1996). We review the district court's determinations of Oklah oma law de novo
. Brodie , 112 F.3d at 442; May , 84 F.3d at 1345.
After a thorough review of the record, we hold the district court properly applied Oklahoma law and agree with the district co urt's conclusion Ms. Coyle is a third party claimant not entitled to recover on h er claim against State Farm. Under Oklahoma law, the duty of good faith and fairdealing arises from the contractual relationship between the insurer and th e insured. McWhirter v. Fire Ins. Exch., Inc. , 878 P.2d 1056, 1058 (Okla. 1994). Inasmuch as Ok lahoma does not recognize a duty for an insurance company to de al fairly and in good faith-5-

with an injured third party, there can be no bad fa ith claim arising from a breach of this alleged duty. Id . at 1058-59. Although Ms. Coyle has a contractual relationship with State Farm through her homeowners policy, her complaint prays for damages as an injured third party. Her complai nt claims "State Farm owed [her] a duty to fairly investigate the [death of he r daughter] and pay her for any damages due to the liability of [her husband]." Th erefore, although initially her claim portends to rests on State Farm's duty to one of its insureds, her alleged damages stem solely from the liability of her husba nd. While no Oklahoma case directly addresses whether an insurer owes a duty o f good faith and fair dealing to an insured when the insured is acting as a third party claimant, we agree with the district court that "plaintiff mistakenly centers o n the fact that she has a contract for insurance with State Farm Fire and thus may ass ert a claim with impunity regardless of the capacity in which Plaintiff makes the claim." The fortuitous fact that an insured person is making a liability claim against a policy of insurance under which that person is also an insured is not the factor that determines either the nature of the claim or the duty owed the claima nt. To find a duty in this situation would be an improper expansion of Oklahom a law. Accordingly, we leave this decision to the Oklahoma courts.
Ms. Coyle's assertion the district court erred in h olding an insurer owes no-6-

duty of good faith and fair dealing to an insured w hen the insured asserts a claim against a co-insured misreads the district court's Order and is entirely without merit. First, as stated above, the district court dismissed her claim based on Oklahoma law that does not recognize a cause of act ion by a third party claimant against an insurer, not on any theory regarding lit igation between co-insureds. Second, Ms. Coyle's claim was not brought against aco-insured, but rather against the insurer.
Accordingly, we affirm for the reasons stated and s ubstantially for the reasons set forth in the district court's Order of October 8, 1996.

AFFIRMED.

Entered for the Court
WADE BRORBY United States Circuit Judge