The Honor able Frank J. Magill was an active judge at the time this case wa s 1 submitted and assumed senior status on April 1, 1997, before the opinion was filed. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-1330

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

___________ Submitted: September 13, 1996

Filed: July 23, 199 7

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

___________ MAGILL, Circuit Judge.

Inresponse to an Arkansas state court action brough t by Garnette Bell on behalf of herself and her son , Kenyatta W illiams, Allstate Insurance Company (Allstate)TheHonorable H. Franklin Waters, Chief Judge, United States District Court 2 for the Western District of Arkansas.
-2- brou ght this declaratory judgment action against it s insured, Joel Mark Burrough, and against Bell in order to ascertain Allstate’s obligation to provide coverage t o Burrough. Burrough was named as one of the d efendants in Bell’s state court action for tort damages because o f Burr ough’s involvement in the accidental shooting o f Williams. The district court granted summary judgment i n 2 favor of A llstate, ruling that a criminal acts exclusion in the policy underwritten by Allstate exclud ed coverage. Allstate Ins. Co. v. Burrough , 914 F. Supp. 3 08, 310, 314 (W.D. Ark. 1996). Bell appeals, and we affirm.

I.

The material facts o f this case are undisputed. The distric t court recounted the events leading up to th e accidental shooting of Williams as follows:

The record shows that in August or Septe mber of 1993, defendant [Burrough], who wa s appro ximately14 at the time, stole a .2 2 caliber handgun from his grand father’s residence and took it home. Over the next couple o f month s he showed it to his friends, includin g Jeremiah Hauser and Christophe r Beck. Sometimes the ywould shoot the gun into the ground in a stora ge shed on defendant’s property. On on e occasion, while the gun was being handled by a fri end of defendant’s named Chad Coleman, th e gun m isfired even though Chad had not touche d the t rigger or cocked the hammer. Still , defen dant and his friends thought the gun wa s “cool.”-3- In ad dition to playing with guns, defendant and his friends would pass the time by “cruising Grand [Avenue].” Grand is a long, wide stree t in Fort Smith, Arkansas, popul ated with numerous fast food restaurants and like busines s establishments. Many teenagers would cruise up and down the street for hours. Also, teenagers would h ang out in the parking lots of th e business establishments along Grand and drin k beer, smokeThedistrict court found that Hauser “was approximately 16 at the time of the 3 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 inAppellee’s App. at 30.
-4- pot, and not infrequently, get into fights

. Apparently, there was even some gang-lik e activity on Grand, or at least defendant and his friends thought that the “Bloo ds” hung out there wearing red bandannas and gang-like athleti c wear. Also, teenagers who defendant and hi s frien ds believed to be involved with gangs ha d harassed them on one or two occasions prior t o the night of the shooting.

Id. at 313.

The sh ooting occurred on October 22, 1993. On tha t day, Williams was on foot in the parking lot of a Harvest Foods grocery store in Fort Smith, Arkansas. In tha t same parking lot, Beck and Hauser were in a c ar driven by Beck. On the floorboard of Beck’s car was the .2 2 cali ber handgun that Burrough had stolen from hi s grandfathe r. As Beck and Hauser drove by Williams, Beck “flashed” the .22 caliber handgun towards Williams. The handgun accidentally discharged, shooting Wil liams in the neck. The bullet severed Williams’s spinal c ord and left him a quadriplegic.

Beck, who was sixteen years old at the time of th e shoo ting, had received the .22 caliber handgun fro m Hauser. H auser, who was fifteen or sixteen years old at the time of the shooting, had obtained the handgun from 3 Burr ough approximately two weeks prior to the shooting

.-5-

Burro ugh was fourteen years old when he gave the gun t o Hauser.

In a deposition, Burrough later testified that h e gave the handgun to Hauser because Hauser was concerne d tha t Burrough would be caught with the handgun i n Burrough’s possession. See Joel Mark Burroug h Dep. (Feb. 20, 1995) at 22, reprinted-6-

in Appe llee’s App. at 19. Burrough also testified tha t he expected Hauser to return the handgun to h im. Id. In addition, Burrough claimed that he could not remember any conversations with Hauser or Beck prior to th e accidental shooting incident. See id. at 29-30, reprinted i n Appe llee’s App. at 26-27. However, Burrough als o test ified that, prior to the shooting incident, Hause r and Bec k told him that “they had gotten in a fight a t schoo l or something, or almost got in a fight, and the y said somet hing about something on Grand . . . .” Id. at 29, reprinted in Appellee’s App. at 26. Finally , Burrough t estified that, when he gave the gun to Hauser, it was loaded with several rounds of ammuniti on. See id. at 30, reprinted in Appellee’s App. at 27.

Bell filed her Arkan sas state court action on behalf of h erself and Williams, naming Beck, Hauser, an d Burrough as defendants. In her complaint, Bell allege d tha t Beck negligently and recklessly shot Williams , pr oximatelycausing damage to her and Williams. Sh e furt her alleged that Hauser and Burrough acte d negligently and recklessly in providing Beck with the .22 caliber ha ndgun, which also proximately caused damage to her and Williams. Allstate subsequently filed thi s declaratory judgment action in the district c ourt against Burr ough and Bell. Allstate seeks a declaration that , unde r the terms of a homeowner’s insurance polic y purch ased by Burrough’s father, Allstate has n o obli gation to provide coverage for Burrough’s acts an d that Allstate consequently has no duty to def end Burrough in the state court action.-7-

The parties agree that at all relevant times Burroug h
was covere d by the Allstate homeowner’s insurance policy purc hased by Burrough’s father. The policy obligate s Allstate t o pay, “[s]ubject to the terms, conditions and li mitations of this policy, . . . damages which a n insu redpersonbecomes legally obligated to pay becaus e of bo dily injuryor property damage arising from a n occurrence to which this policy applies . . . . ” Allstate D eluxe Plus Homeowners Policy, § II, Coverage X FamilyLiability Protection (Policy), reprinted i n Appellee’s App. at 6 (emphasis in original). The policy further provides that “[i]f an insured person is sued for these damages, we-8-

[Allsta te] will provide a defense with counsel of ou r choice, ev en if the allegations are groundless, false or fraudulent.” Id. (emphasis in original).

In its declaratory judgment action, Allstate move d for summary judgment, asserting that, although Burroug h
was in sured under the policy at the time of Williams’ s shoo ting, coverage was excluded by operation of th e poli cy’s criminal acts exclusion. The criminal act s exclusion provides that:
Losses We Do Not Cover Under Coverage X: 1. We [Allstate] do not cover any bodily in jury or property damage intended by, or whichmay reaso nablybe expected to result from th e intentional or criminal acts or omission s of, any insured person . This exclusio n applies even if: a) such insured personlacks the menta l capacity to govern his or her conduct; b) su ch bodily injuryor property damage is of a different kind or degree than tha t intended or reasonably expected; or c) su ch bodily injuryor property damage is sustained by a different person tha n intended or reasonably expected. This exclusion applies regardless of whether or not such insured personis actually charge d with, or convicted of a crime.

Id. , re printed in Appellee’s App. at 6-7 (emphasis i n original).

The district court concluded that, although the stat e of A rkansas never pressed criminal charges or adjudge d Burrough t o be a juvenile delinquent, Burrough committed-9-

a cr iminal act under Arkansas law. Burrough , 914 F

. Supp. at 3 11-12. Specifically, the district court found that Burrough had committed the offense of furnishing a deadly weapon to a minor, in violation of Arkansas Cod e Annotated § 5-73-109. Burrough , 914 F. Supp. at 311-12. In addition, the district court concluded tha t “[Burrough ] should have reasonably expected that someone might be k illed or injured when [Burrough] committed the criminal act of providing a minor[, Hauser,]-10-

with a fir earm.” Id. at 314. Accordingly, the district
co urt held that Allstate is not obligated to provid e cove rage for Burrough’s role in the accidental shootin g incident. Id. The district court also held tha t Allst ate has no duty to defend Burrough in the actio n brought by Bell. Id. Bell appeals.

II.

On appeal, we review the district court’s grant o f summary judgment to Allstate de novo. See McCormack v

. Citibank, N.A. , 100 F.3d 532, 537 (8th Cir. 1996)

. Summ aryjudgment is appropriate only if the record , viewe d in the light most favorable to the nonmovin g part y, presents no genuine issues of material fact an d the m oving party is entitled to judgment as a matter o f law. Id

. ; see also Fed. R. Civ. P. 56(c). A grant o f summary judgment is proper “[w]here the unres olved issues are primarily legal rather than factual . . . .” Bank of America Nat’l Trust & Savings Ass’n v. Shirley , 96 F.3 d 1108, 1111 (8th Cir. 1996).

Afederal court’s interpretation of an insuranc e policy in a diversity case is governed by state law, and accordingly, our interpretation of Allstate’s insuranc e polic yin this case is governed by Arkansas law. Se e Dupps v. Travelers Ins. Co. , 80 F.3d 312, 313 (8th Cir

. 1996). “We review the district court’s inter pretation of Arkansas law de novo.” Id.

Under Arkansas law, “an insurance policy, having bee n draf ted by the insurer without consultation with th e insured, i s to be interpreted and construed liberally in-11-

favor of the insured and strictly against the insurer. ” Nolan d v. Farmers Ins. Co. , 892 S.W.2d 271, 272 (Ark

. 1995). However, the Arkansas Supreme Court h as cautioned that “[t]h e terms of an insurance contract are not to be
rewr itten under the rule of strict construction agains t the com pany issuing it so as to bind the insurer to a risk which is plainly excluded and for which it was no t paid. ” Smith v. Shelter Mut. Ins. Co. , 937 S.W.2d 180 , 182 (Ark. 1997) (quotations and citations omitted)

. Rather, we must-12-

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

Und er Arkansas law, “absent statutory strictures t o the contrary, exclusionary clauses are genera lly enforced
accor ding to their terms.” Id. Although ambiguou s lang uage in an exclusionary clause “should be construe d in favor of the insured,” State Farm Fire & Cas. Co. v

. Midg ett , 892 S.W.2d 469, 471 (Ark. 1995) (quotation s om itted), such “ambiguity exists . . . only when a prov ision is susceptible to more than one reasonabl e inte rpretation.” Id. “The initial determination o f whether a contract is ambiguous rests with th e court, and when a contract is unambiguous, its construction is a quest ion of law for the court.” Hartford Fire Ins. Co

. v. Carolin a Cas. Ins. Co. , 914 S.W.2d 324, 326 (Ark. Ct. App. 1996).

To pr evail on its summary judgment motion in thi s decl aratoryjudgment action, Allstate had the burden o f 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 ) (holdin g that an insurer has the burden of proving tha t
an i nsured fell within an insurance policy exclusion)

. To fit within the terms of the criminal acts exclusion , Alls tate needed to prove (1) that Burrough committed a “cri minal act” and (2) that Burrough could hav e reasonablyexpected Williams’s injury to have resulte dAlls tate has not argued that Williams’s injuries were the intended or expected 4 result of an intentional act committed by Burrough.
-13- from that criminal act. Bel l first presents two related 4 arguments that challenge the first prong of t his two-part analysis.

A.

Bell argues that, although furnishing a gun to a minor is a criminal act under Arkansas law wh en committed by an adult, it is merely a delinquent act when-14-

committed by a minor. According to Bell, it is therefore unclear whether Burrough, a minor when he gave th e handgun to Hauser, committed a criminal act for purposes of Allstat e’s criminal acts exclusion. Bell thus argues that the c riminal acts exclusion is ambiguous and should be c onstrued against Allstate to find coverage fo r Burro ugh’s act of furnishing a handgun to Hauser. W e 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 wea pon to a minor when he sells, barters, leases, gives, rents, or otherwise furnishes a firearm or othe r deadly weapon to a minor without the consent of a parent, guardian, or other person responsible for genera l supe rvision of his welfare.” Ark. Code Ann. § 5-73

- 109 (a) (Michie 1993). A minor is “any person unde r eighteen (18) years of age.” Ark. Code Ann. § 5-73

- 101(2) (Michie 1993).

Inthe present action, it is undisputed that Burroug h furni shed a .22 caliber handgun to Hauser, who at th e time was a minor. It is also undisputed that n o responsible adult consented to the transfer

. Cons equently, Burrough’s act of giving the handgun t o Hauser satisfied all the elements of the crim inal offense of furnishing a deadly weapon to a minor.

We recognize that Burrough, who was fourteen year s old when h e handed over the handgun to Hauser, could not be char ged with or convicted of a § 5-73-109(a) offens e in a criminal proceeding. Arkansas’s juvenile court s-15-

woul d have exclusive jurisdiction over Burrough wit h respe ct to a § 5-73-109(a) offense. Compare State v

. Gray , 8 91 S.W.2d 376, 377 (Ark. 1995) (holding that th e “jur isdiction of the juvenile court is exclusive an d original with respect to all offenses charged against a juven ile who is fourteen years old at the time of th e comm ission of those offenses, with the exception o f cert ain offenses enumerated in Ark. Code. Ann. § 9-27

- 318(b)(1) (Repl. 1991)” (emphasis in original )) with Ark. Co de Ann. § 9-27-318(b)(1) (Michie 1993) (grantin g prosecutor ial discretion to charge fourteen-year-olds as adults with certain-16-

enumerated offenses, not including § 5-73-109(a))

. Therefo re, for the act of furnishing a deadly weapon t o Haus er, Burrough could only be adjudged a juvenil e deli nquent in a juvenile court. See Arkansas Juvenil e Code of 1989, Ark. Code Ann. § 9-27-301 to -352 (Michi e 1993) (setting forth provisions dealing with juvenil e delinquency).
AlthoughBurrough’s status as a juvenile prevents hi m from being tried as an adult, the offense he committed is stil l a criminal act. Neither § 5-73-109(a) nor th e provisions dealing with juvenile delinquency incorporate
an age- based exception to the offense of furnishing a deadly weapon to a minor. Instead, § 5-73-10 9(a) applies to any “person” who furnishes a deadly weaponto a minor,
see § 5-73-109(a), and the Arkansas Criminal Cod e recognizes that a minor, such as Burrough, is a “person.” See § 5-73-101(2).
Regard less of whether he could be tried as an adul t
or be a djudged a juvenile delinquent, under the plai n language of the Arkansas Criminal Code, Burroug h commit ted an act defined as criminal. Hence, h e comm itted a criminal act for purposes of Allstate’ s criminal acts exclusion. Cf. Butler v. State , 922 S.W.2d 685, 68 9 (Ark. 1996) (construing Ark. Code Ann. § 9-27

- 318( a) (Michie 1993) to hold that the state prosecuto r had to file “theft charges” in juvenile court against a minor who was fifteen years old at the time that h e committed offenses in violation of the Arkansas Criminal Code be fore the prosecutor could move to transfer th e “cha rges” to circuit court); Eichelberger v. State , 91 6 S.W. 2d 109, 110-12 (Ark. 1996) (In holding tha t-17-

application of a newly-enacted, punitive law “increase d the burden of the punishment” to juveniles and thereb y violated t he Ex Post Facto Clause because application of the newly-enacted law “ makes more burdensome th e punishment for a crime, after its commission ,” the court impl iedlyrecognized that two minors, who had bee n adjudged d elinquent, had committed a crime. (emphasis in original)); Johnson v. State , 888 S.W.2d 661, 661 (Ark

. 1994) (“Ap pellant was adjudged a juvenile delinquent for committing the crimes of rape and robbery.”).-18-

Given Allstate’s cle ar intention to exclude coverage for criminal acts, Bell cannot create an ambi guity merely by d rawing a distinction based on the potentia l
cons equences that flow from Burrough’s conduct. Nearl y everyreported federal court decision interpretin g Allst ate’s criminal acts exclusion has also conclude d that the c riminal acts exclusion applies to minors. See Allst ate Ins. Co. v. Green , 831 F.2d 145, 147 (6th Cir

. 1987) (“Under this language it is clear that if youn g Robertson[ , a fourteen-year-old boy,] had raped the girl himself, his act would have been an intentional o r crimin al act of an insured person and there would hav e been no coverage for either of the Robertsons.” ) (M ichigan law); Allstate Ins. Co. v. Cutcher , 920 F

. Supp. 796, 798-99 (N.D. Ohio 1996) (holding that, unde r Oh io 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. 19 94) (holding that, unde r Georgia law, criminal acts exclusion applies to ac ts of a minor), aff’d , 70 F.3d 1285 (11th Cir

. 1995); Allstate Ins. Co. v. Carmer , 794 F. Su pp. 871, 873 (S.D

. Ind. 1991) (holding that criminal acts exclusio n appl ies to acts committed by a fourteen-year-old bo y because th ose acts constitute a violation of the Indiana Crimina l Code); but see Allstate Ins. Co. v. Lewis , 73 2 F. Supp . 1112, 1114-15 (D. Colo. 1990) (holding that , unde r Colorado law, criminal acts exclusion does no t apply to the acts of a minor).
Finally, it makes no difference whether Burrough was , or ever will be, adjudged a juvenile delinquent o r crim inallyconvicted. Under the terms of the crimina l acts exclusion, coverage for bodily injury reasonabl y-19-

expected to result from a criminal act is exclude d “r egardless of whether or not such insured person i s actually charged with, or convicted of a crim e.” Policy, repr inted in Appellee’s App. at 7 (emphasis omitted)

. Thus, a s long as Williams’s injury was the reasonabl y foreseeable result of Burrough’s criminal act, coverag e is excluded regardless of whether the state of Arkansa s ever takes action against Burrough.Currently, furnishing a handgun to a minor is classified as a Class B felony, see 5 Ark. Code Ann. § 5-73-109(b)(1) & (9) (Michie 1993 & Supp. 1995). A perso n 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- B.

Bell also argues that a reasonable insured, i n purchasing a homeowner’s insurance policy from Allstate, woul d not understand or realize that the criminal act s exclusion contained in that policy excluded coverage for the act of furnishing a handgun to a minor . Consequently, Bel l argu es that the criminal acts exclusion should b e construed against Allstate. We disagree.

As a party to a cont ract governed by Arkansas law, a reasonable insured would understand that a criminal acts excl usion would exclude coverage for acts defined a s criminal by the Arkansas Criminal Code. Under th e Arkansas C riminal 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 t he time Burrough gave the .22 caliber handgun t o Hause r, a violation of § 5-73-109(a) was defined as a Clas s A misdemeanor, see Ark. Code Ann. § 5-73-109(b) , pun ishable by up to one year in prison. Ark. Code Ann

. § 5-4-401(b)(1) (Michie 1993). Although Burrough, as a 5 minor , would not have faced the same sentence if he ha d been adjudged a delinquent, the juvenile court could a t its dis cretion have committed him to a youth service s center, see Ark. Code Ann. § 9-27-330(3) (Michie 1993) ,-21-

or placed him on probation. See Ark. Code Ann. § 9-27

- 330(4) (Michie 1993).
Given the potential loss of liberty for furnishing a hand gun to a minor, a reasonable insured would realiz e that such an act is a criminal act. Any othe r inte rpretation of the criminal acts exclusion by thi s Court woul d rewrite the clear terms of Allstate’s policy and force Allstate to bear a risk “which is plainl y excluded and for-22-

which it was not paid.” Smith , 937 S.W.2d at 18 2 (quotations and citations omitted). III.
Bell argues that All state did not meet its burden of pro ving as a matter of law that Burrough could hav e reasonablyexpected Williams’s injury to have resulte d from his act of furnishing a handgun to Hauser. W e disagree.

To determine whether Allstate met its burden, we mus t dete rmine whether a reasonable person would find tha t Wil liams’s injuries were the natural, probable, an d fore seeable 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 “a n [insurance policy] exception excluding coverage fo r pers onal injury which is ‘expected or intended’ by th e insured” t o mean “the policy exception excludes coverage for injuries which the average run of reasonable peopl e woul d expect or intend to inflict by engaging in th e conduct in question”); Mahan v. Hall , 897 S.W .2d 571, 573 (Ark. 1995) (applying objective definition o f negligence ); Bushong v. Garman Co. , 843 S.W.2d 807, 812 (Ark. 1992) (applying objective definition o f
unre asonablydangerous); Allstate Ins. Co. v. Brown , 1 6 F.3d 222, 225 (7th Cir. 1994) (holding that, unde r Indiana law, an objective standard must be applied t o inte rpret a criminal acts exclusion nearly identical t o the c riminal acts exclusion at issue in the presen t action andthat “[t]he phrase [’reasonably expected’] is meant to ensure that the policy’s exclusions apply onl y-23-

to tho se injuries most likely to result from th e insured’s intentional or criminal conduct.”).

The undisputed material facts demonstrate that a reasonable person would have expected William s’s injuries to result from the act of furnishing Hauser w ith a loaded .22 calibe r handgun that had previously misfired. Based
on p ast experience, Burrough knew that Hauser and Bec k
were likely to cruise up and down Grand avenue wher e teenagers hang out in the parking lots, drinkbeer, smoke marijuana, and get into fights.-24-

Furthermore, Burrough knew that, on at least one previous occasion, Burrough and his friends had been harassed b y teenage rs believed to be involved in gangs. Finally , Burro ugh knew that the gun had misfired on at least on e previ ous occasion and that the gun was loaded when h e handed it over to Hauser.

Giventhis knowledge, a reasonable insured would hav e expected t hat 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 furnishin g Hauser with a loaded, malfunctioning handgun. We reac h this conclusion, notwithstanding the fact that Beck , rath er than Hauser, was the one who accidentally fire d the gun . Regardless of which one of Burrough’s friend s held the g un when it misfired, once Burrough handed over
a lo aded, malfunctioning gun to Hauser, Burrough shoul d have reasonably expected that an incident like the on e that took place would happen.

IV.
For the foregoing reasons, we affirm.
McMILLIAN, Circuit Judge, dissenting.

I respe ctfully dissent. Because I believe that th e excl usion for “criminal acts” is ambiguous and must b e construed in favor of Burrough as a matter of law and , alte rnatively, that a genuine issue of material fac t exists as to Burrough’s reasonable expectations, I would
reverse.-25-

To p revail in its declaratory judgment action , Allstate was required to prove that the polic y’s criminal acts exclu sion applied to exclude Burrough from coverage by show ing that: (1) Burrough committed a criminal ac t to which the criminal actsAs noted in the majority’s opinion, supra at 7 n.4, Allstate did not, at any point, 6 claim that Burrough’s conduct fell within the “intentional acts” clause of the exclusion.
-26- exclusion applied and (2) Bu rrough could have reasonably 6 expe cted Williams’s injury to result from the crimina l act. See Arkansas Farm Bureau Ins. Fed’n v. Ryman , 83 1 S.W.2d 133, 134-35 (Ark. 1992) (an insurer ha s the burden of pr oving that an insured fell within an insuranc e poli cyexclusion). To prevail on summary judgment , Allsta te was required to show that no genuine issue o f material fact exists as to either of those requirement s and that it is entitled to judgment as a matter of law

. Fe d. R. Civ. P. 56(c); see, e.g. , Celotex Corp. v

. Catrett , 477 U.S. 317, 322-23 (1986); Anderso n 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, 69 9 (8th Cir. 1992). For the reasons set forth below, I would hold that the term “criminal acts” within th e policy’s c riminal acts exclusion is ambiguous as applied to m inors and, accordingly, should be construed agains t All state as a matter of law to provide coverage fo r Burrough. See Keller v. Safeco Ins. Co. of Am. , 87 7 S.W. 2d 90, 92 (Ark. 1994) ( Keller ) (court construe s ambi guous insurance contract to justify recovery fo r insured ). Alternatively, I would hold that a genuin e is sue of material fact exists as to whether Burroug h could have reasonably expected Williams’s injuries t o result from his act of giving the handgun to Hauser.

I. Ambiguity in the Policy’s Criminal Acts Exclusion-27-

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 ac t when committed by an adult, under the Arkansas Juvenil e Code of 19 89, Ark. Code Ann. §§ 9-27-301 to -368 (Michie Repl. 1 993) (the juvenile code), it is a delinquent ac t when committed by a juvenile.-28-

The juvenile code defines, in pertinent part, a juve nile as an individual who “[i]s under the age o f eighteen (18) years.” Ark. Code Ann. § 9-27-303(1)(A)

. A delin quent juvenile is defined as “any juvenile te n (10) years or older who has committed an act . . . which, if such act had been committed by an adult, w ould subject such adult to prosecution for a felony, misdemeanor, o r viol ation under the applicable criminal laws of thi s state.” Id. § 9-27-303(11). Generally, whensuch an act
occu rs, the prosecuting attorney files a delinquenc y petition in the juvenile division of the chancery cour t (h ereinafter, juvenile court). Id. § 9-27-310. Th e juvenile court has exclusive and original jur isdiction of all offenses charged against a juvenile who is fourtee n or fi fteen years old at the time of the commission o f thos e offenses, with the exception of certain offense s enum erated in § 9-27-318(b)(1). Id. § 9-27-318(a)(3) ; State v. G ray , 891 S.W.2d 376, 377 (Ark. 1995). For the limi ted offenses listed in § 9-27-318(b)(1), none o f which is i nvolved in this case, the prosecuting attorney may ch oose either to file a petition in juvenile cour t alleging d elinquency or to file charges in circuit court
an d 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 juvenil e proc eeding to circuit court based upon § 9-27-318(c))

. The Arkansas Supreme Court recently disapproved of th e exte nt of discretion given prosecutors in prosecuting a juvenile as an adult and issued a caveat “that i n juve nile transfer cases tried after this date, we wil l
cons ider anew our interpretation of the juvenile code, ” Sanders v. State , 932 S.W.2d 315, 319 (Ark. 1996) , indicating an intention that juveniles be pro tected under-29-

the juv enile code. Cf. McKeiver v. Pennsylvania , 40 3 U.S. 528, 545, 546 n.6 (1971) (the ideal of separat e trea tment for children through an intimate, informa l protective juvenile proceeding “is still wort h purs uing”); Valdez v. State , 801 S.W.2d 659, 661 (Ark

. Ct. App. 1991) (“The revisions found in the J uvenile Code of 1 989 were designed to promote and further safeguar d the interests of accused juvenile offenders.”). Because furnishing a deadly weapon in violation o f § 5-7 3-109 is not an offense which is excepted from th e juv enile court’s exclusive jurisdiction unde r § 9-27-18( b)(1), Burrough, who was fourteen years old at the time of his relevant acts,-30-

was not subject to criminal charges for giving th e handgun to Hauser. In holding that "[t]he criminal acts exclu sion applies so long as the insured engages i n conduct which is described as criminal in the penal code, 'r egardless of whether or not such insured person i s actu allycharged with, or convicted of a crime,' " Alls tate Ins. Co. v. Burrough , 914 F. Supp. 308, 31 2 (W.D. Ark. 1996) ( Burrough ) (quoting Policy, reprinted in App. for A

ppellee at 7) (emphasis omitted), the district court fail ed to recognize the distinction between an act for which an individual is actually charged or convicted
an d an act for which an individual can be actuall y char ged or convicted. Under Arkansas law, Burroug h
cann ot be charged in circuit court or convicte d crimina llyof furnishing a handgun to a minor. Becaus e Burroug h committed an act which would be a criminal ac t if committed by an adult but for which he, as a fourteenyear-old, cannot be criminally charged or con victed under state law, the criminal acts exclusion in the policy may be reasonably interpreted as inapplicable to thes e circumstan ces. The criminal acts exclusion is therefore ambiguous as applied to Burrough’s act of giving a handgu n to Hauser and must be construed to not exclud e coverage for Burrough. See Keller , 877 S.W.2d at 92.

The district court also reasoned that, because th e poli cydoes not cover mental incompetents for thei r crimina l acts for which they cannot be prosecuted, i t shou ld be construed as excluding minors for thei r crim inal acts for which they cannot be prosecuted

. Bu rrough , 914 F. Supp. at 312. However, under th e district court's reasoning, the mental incompetent s prov ision of the criminal acts exclusion is susceptibl e-31-

to m ore than one meaning as to which individuals ar e included within the classification of menta l incompeten ts. Specifically, an insured cannot determine whet her the term “mental incompetents” includes onl y individual s adjudicated mentally incompetent, or whether it i ncludes minors based on their legal incapacity

. Therefore, the ambiguous mental incompetents provisio n must not b e construed to include minors, see Keller , 877 S. W.2d at 92, and, thus, cannot be used to justif y application of the criminal acts exclusion to minors.-32-

In addi tion to the inherent ambiguity in the phras e “crimin al acts” as applied to minors, I would also hol d that the c riminal acts exclusion is ambiguous insofar as it ex cludes coverage for “any bodily injury . . . whic h may reasonably be expected to result from the intentional or crimina l acts . . . of, any insured person . . . even if . . . s uch bodily injury . . . is of a different kind or degree than that . . . reasonably expected.” Policy, reprinted in App. for Appellee at 6 (emphasis omitted)

. This provi sion creates a virtually limitless category of acts for which the insured will not be covered under the polic yby excluding not only bodily injury which a n insu red may reasonably expect to result from hi s intentional or criminal act, but also, bodily injury o f
a diff erent kind or degree than that which the insure d reasonably expected. I doubt this interpretatio n represents the reasonable expectations of an insured who ente rs into this insurance contract. See Enterpris e Tools, Inc. & E.B. v. Export-Import Bank , 799 F.2d 437 , 442 (8t h Cir. 1986), cert. denied , 480 U.S. 931 (1987)

. This provision is susceptible of more than on e meaning as to wh en bodily injury may be reasonably expected t o result from the intentional or criminal acts of a n insured and, therefore, must be construed in favor of the possible i nterpretation that Burrough be denied coverage
on lyfor injuries resulting directly from his act o f giving the gun to Hauser and not from Beck’s subsequen t acqu isition of the gun and accidental shooting o f Williams. See Keller , 877 S.W.2d at 92. Fi nally, my construction of the policy in favor o f
cove rage for Burrough does not unduly burden Allstat e because, as the insurer and drafter of the policy , Allstate could have expressly included minor s within the-33-

criminal acts exclusion. See Foremost Ins. Co. v

. Sheppard , 610 F.2d 551, 557 (8th Cir. 1979) ( interpreting Arkansa s insurance law). Allstate failed to do so, an d I would not read such a meaning into the policy.

II. Burrough’s Reasonable Expectations
Alternatively, I would reverse on the basis tha t Burrough could not have reasonably expected Williams’ s injury to result from his act because the relationshipIcaution that the majority opinion’s conclusion that “once Burrough hande d 7 over a loaded, malfunctioning gun to Hauser, Burrough should have expected that an incident like the one that took place would happen,” supra at 1 3, may have a preclusive effecton the issue of causation in Bell’s state court action. Accordingly, I offer n o opinion on the issue of causation, but only express my belief that a genuine issue o f material fact exists as to Burrough’s reasonable expectations.
-34- betw een Burrough’s giving the gun to Hauser and Beck’ s accidental shooting of Williams is too tenuou s to qualify for exclu sion. I believe the district court’s disposition of this issue o n 7 summary judgment was erroneous because Burrough’s deposition testimony, Exhibit C, reprinted inApp. for Appellee at 12-27, creates a genuine issue of material fact as to whether Burrou gh 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 insurancepolicy excluded from coverage “bodily injury . . . which is either expected or intended from the standpoint of the insured,” evidence that insured did not intend or expe ct resulting injury raised a question of fact and precluded summary judgment for insurer ). Furthermore, Burrough’s reasonable expectations must be assessed in th e 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 bodil y i n juries which may “reasonably be expected to result from the intentional or criminal acts of a n insured person” focuses on objective conduct and not merely on th e subjectiv e expectations or intentions of the insured, “the excluded injuries must b e thoseexpected by a reasonable 13-year-old”), aff’d , 70 F.3d 1285 (11th Cir. 1995 ) (table).

Acc ordingly, I would reverse the district court's grant of summary judgment in favoro f Allstate and remand the case to the district court with directions to ente r 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.-35-

A true copy.

Attest:

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

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