* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### FEB 24 1998 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALLSTATE INSURANCE COMPANY,Plaintiff-Counter-DefendantAppellee,

v. STEVEN FOX, Defendant and BOBBY HOLLAND, individually and as mother and next of kin of Bobby Edward Phelps, deceased,Defendant-Counter-ClaimantAppellant. No. 96-6411 (D.C. No. CIV-94-1381) (W.D. Okla.)



### ORDER AND JUDGMENT *-2-

Before SEYMOUR , Chief Judge, LOGAN, Senior Judge, and MURPHY, Circuit Judge.

Allstate Insurance Company brought this declaratory judgment action against Stephen Fox and Bobby Holland, asserting th at it had no duty either to defend or to provide coverage under two Allstate po licies insuring Stephen Fox. The action was in response to a state court suit fi led by Bobby Holland against Mr. Fox for the wrongful death of her son, Bobby Ph elps. The parties consented to proceed before a federal magistrate judge, who e ntered summary judgment for Allstate. Bobby Holland appeals and we affirm. The underlying facts are briefly as follows. Steph en Fox and Jerry Byrum were traveling in Fox’s vehicle on a highway beside a car driven by decedent Bobby Phelps. Mr. Fox, who was driving, cut in fro nt of Mr. Phelps’ car and then chased Mr. Phelps to a parking lot where Mr. Phelps stopped his vehicle. Mr. Fox, Jerry Byrum, and Mr. Phelps got out of their c ars. Mr. Fox gave Mr. Byrum a baseball bat that Mr. Fox kept in his car, and Mr . Byrum struck Mr. Phelps in the head with it, killing him. Mr. Fox was insured under two Allstate policies, an automobile insurance policy issued to his father, and a homeowner’s poli cy issued to both parents. The homeowner’s policy provided coverage for “damages w hich an insured person becomes legally obligated to pay because of bodily injury . . . arising from an-3-

accident.” Aplt. App. at 132. The automobile insu rance policy provided coverage for bodily injury arising from the use of an insured auto but extended that coverage only to bodily injury resulting from an accident. Id. at 174. The magistrate judge ruled that coverage was not availa ble under either policy because the death was not an accident within the meaning of the policy language. Our consideration of this appeal is governed by ourdecision in Farmers Alliance Mut. Ins. Co. v. Salazar , 77 F.3d 1291 (10th Cir. 1996), which addressed circumstances similar in relevant respects. There, as here, we were required to determine, under Oklahoma law, whether bodily injury was the result of an accident when the insured gave a third person a weapon and that person’s intentional use of the weapon resulted in death. I n Salazar , Ofelia Salazar and her son Manuel were insured under a homeowner’s policy providing coverage for bodily injury resulting from an accident. Although Ofelia knew Manuel carried a revolver and tended to threaten people with it, she did not attempt to take the gun from him or to control his use of it. Ofelia gave her other son an automatic weapon and was present when Manuel took the automat ic from his brother. Manuel subsequently gave the revolver to his friend Jacob De LaCruz. Manuel and Jacob were in a car carrying their weapons when Manuel began an altercation with the occupants of another car by giving a gang signal with his hand. Ultimately, Manuel and Jacob each fired at least on e shot at the other car and a-4-

bullet from the revolver killed the driver. Manuel and Jacob were both convicted of first degree murder. See id. at 1293-94. The driver’s estate sued Ofelia and Manuel, and Far mers brought a declaratory judgment action to determine the covera ge limits of the homeowner’s policy. In determining whether the death was the r esult of an accident, we held the operative event was the firing of the gun that killed the decedent, not Ofelia’s negligent supervision of Manuel or Manuel’s neglige nt entrustment of the gun to Jacob. We held the death was not an accident under Oklahoma law, which defined an accident as “‘an event from an unknown c ause, or an unexpected event from a known cause. An unusual event and unexpecte d result, attending the performance of a usual or necessary act.’” Id. at 1297 (quoting United States Fidelity & Guar. Co. v. Briscoe , 239 P.2d 754, 757 (Okla. 1951) (per curiam)). Our holding in Salazarthat the injury there was not an accident, under circumstances analogous to those before us, require s the same conclusion here. Bobby Holland relies on Penley v. Gulf Ins. Co. , 414 P.2d 305 (Okla. 1966), in contending the death here was an accident . In that case, however, the court held the occurrence at issue was an accident because the act that caused the injury was done mistakenly, without any intent to i nflict damage. Id. at 309-10. Here, the act at issue, swinging and striking anoth er with a baseball bat, was clearly done intentionally. While the exact nature of the injury may not have been1 Ms. Holland relies extensively on First Bank of Tu rley v. Fidelity &

Deposit Ins. Co. , 928 P.2d 298 (Okla. 1996), in arguing that Allstate has a duty to defend which is broader than its duty to indemnify. First Bankconcerned a suit brought by an insured for breach of the duty to def end and specifically recognized that when faced with a demand to defend, an insurermay do what Allstate did here and seek declaratory relief defining its right s and obligations. Id. at 304. Accordingly the case is inapposite. Ms. Holland’s reliance on our decision in Allstate Ins. Co v. Worthington , 46 F.3d 1005 (10th Cir. 1995), is also unavailing as that case was expressly based on our view of Uta h law. Id. at 1010. -5- intended, it was not unusual or unexpected and was therefore not an accident under the Oklahoma law set out above. Ms. Holland’s attempt to distinguish Salazarfails for the same reason. She argues that Mr. Byrum was only convicted of manslau ghter, a crime that does not require proof of an intent to injure or kill, while the actors in Salazarwere both convicted of first degree murder. In our view, the fact that an intent to injure may not be required for Mr. Byrum’s manslaughter convic tion is irrelevant to determining whether there was an accident for insur ance purposes. The injury that occurred here was the foreseeable result of Mr . Bryum’s decision to hit the decedent with the bat and, as discussed above, ther efore not accidental. 1 Accordingly, the judgment is AFFIRMED

. ENTERED FOR THE COURT Stephanie K. Seymour Chief Judge