*This order and judgment is not binding precedent, except under the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

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*
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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 that it had no duty either to

defend or to provide coverage under two Allstate policies insuring Stephen Fox. 

The action was in response to a state court suit filed by Bobby Holland against

Mr. Fox for the wrongful death of her son, Bobby Phelps. The parties consented

to proceed before a federal magistrate judge, who entered summary judgment for

Allstate. Bobby Holland appeals and we affirm.

The underlying facts are briefly as follows. Stephen 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 front 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 cars. 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 policy issued to both parents. The

homeowner’s policy provided coverage for “damages which an insured person

becomes legally obligated to pay because of bodily injury . . . arising from an
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accident.” Aplt. App. at 132. The automobile insurance 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 available 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 our decision 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. In 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 automatic 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 one shot at the other car and a
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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 Farmers brought a

declaratory judgment action to determine the coverage limits of the homeowner’s

policy. In determining whether the death was the result 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 negligent 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 cause, or an unexpected event

from a known cause. An unusual event and unexpected 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 Salazar that the injury there was not an accident, under

circumstances analogous to those before us, requires 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 inflict damage. Id. at 309-10. 

Here, the act at issue, swinging and striking another with a baseball bat, was

clearly done intentionally. While the exact nature of the injury may not have been
1

 Ms. Holland relies extensively on First Bank of Turley 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 Bank concerned a suit

brought by an insured for breach of the duty to defend and specifically recognized

that when faced with a demand to defend, an insurer may do what Allstate did

here and seek declaratory relief defining its rights 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 Utah law. Id. at 1010. 

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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 Salazar fails for the same reason. She

argues that Mr. Byrum was only convicted of manslaughter, a crime that does not

require proof of an intent to injure or kill, while the actors in Salazar were 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 conviction is irrelevant to

determining whether there was an accident for insurance 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, therefore not accidental.1

Accordingly, the judgment is AFFIRMED.

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge