*

 This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case 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 Company also insured the

motor home. For purposes of our disposition, it is not necessary to resolve this

issue.

2

 In her June 20, 1996, amended complaint, Ms. Coyle 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. However on appeal, Ms. Coyle

does not challenge the district court’s dismissal of 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 October 8, 1996, Order granting

summary judgment in favor of State Farm Fire and Casualty Company and State

Farm Mutual Automobile Insurance Company (collectively "State Farm") and

dismissing her claims.

On May 25, 1994, Ms. Coyle's daughter, Barbara Boteilho, was electrocuted

in the motor home owned by Ms. Coyle and her husband, 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 action against State Farm

for damages in relation to State Farm's breach of its duty to fairly investigate the

death of her daughter.2 Ms. Coyle alleged State Farm directed Mr. Hallman to
3

 In its response, State Farm argues Ms. Coyle lacks standing to maintain a

claim for the wrongful death of her daughter. However, we need not address this

assertion in light of our disposition.

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conduct the investigation in such a manner as to deprive her of her rights under

the insurance policy.

On October 8, 1996, the district court granted State 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 claimant 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 claim.

On appeal, Ms. Coyle contends the district court erred in determining she

could not bring a bad faith claim against State Farm for an alleged breach of its

duty to investigate. Ms. Coyle argues the district court erred in holding an insurer

owes no duty of good faith and fair dealing to an insured when the insured asserts

a claim against a co-insured or to a third party claimant.3

We review the district court's grant or denial of summary judgment de
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novo, applying the same standard used by the district court. 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 genuine 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 district court must ascertain and apply

the substantive law of the forum state, Oklahoma, with the objective of reaching

the same result as that which would be reached in an 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 Oklahoma 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 court's conclusion Ms. Coyle is

a third party claimant not entitled to recover on her claim against State Farm. 

Under Oklahoma law, the duty of good faith and fair dealing arises from the

contractual relationship between the insurer and the insured. McWhirter v. Fire

Ins. Exch., Inc., 878 P.2d 1056, 1058 (Okla. 1994). Inasmuch as Oklahoma does

not recognize a duty for an insurance company to deal fairly and in good faith
-5-

with an injured third party, there can be no bad faith 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 complaint claims "State Farm owed

[her] a duty to fairly investigate the [death of her daughter] and pay her for any

damages due to the liability of [her husband]." Therefore, 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 husband. While no Oklahoma case

directly addresses whether an insurer owes a duty of 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 on the fact that she has a contract

for insurance with State Farm Fire and thus may assert 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 claimant. To find a duty in this

situation would be an improper expansion of Oklahoma law. Accordingly, we

leave this decision to the Oklahoma courts.

Ms. Coyle's assertion the district court erred in holding an insurer owes no
-6-

duty of good faith and fair dealing to an insured when 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 action by a third party claimant

against an insurer, not on any theory regarding litigation between co-insureds. 

Second, Ms. Coyle's claim was not brought against a co-insured, but rather

against the insurer.

Accordingly, we affirm for the reasons stated and substantially 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