The Honorable Frank J. Magill was an active judge at the time this case was

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 United

States

Mark Burrough, * District Court for the

* Western District of

Arkansas.

Defendant, *

*

Garnette Bell, individually and as next *

friend of Kenyatta Williams, *

*

Appellant. *

___________

Submitted: September 13, 1996

 Filed: July 23, 1997

___________

Before McMILLIAN, MAGILL, and MORRIS SHEPPARD ARNOLD,

1

Circuit Judges.

___________

MAGILL, Circuit Judge.

In response to an Arkansas state court action brought

by Garnette Bell on behalf of herself and her son,

Kenyatta Williams, Allstate Insurance Company (Allstate)
The Honorable H. Franklin Waters, Chief Judge, United States District Court 2

for the Western District of Arkansas.

-2-

brought this declaratory judgment action against its

insured, Joel Mark Burrough, and against Bell in order to

ascertain Allstate’s obligation to provide coverage to

Burrough. Burrough was named as one of the defendants in

Bell’s state court action for tort damages because of

Burrough’s involvement in the accidental shooting of

Williams. The district court granted summary judgment in

2

favor of Allstate, ruling that a criminal acts exclusion

in the policy underwritten by Allstate excluded coverage.

Allstate Ins. Co. v. Burrough, 914 F. Supp. 308, 310, 314

(W.D. Ark. 1996). Bell appeals, and we affirm.

I.

The material facts of this case are undisputed. The

district court recounted the events leading up to the

accidental shooting of Williams as follows:

The record shows that in August or September

of 1993, defendant [Burrough], who was

approximately 14 at the time, stole a .22

caliber handgun from his grandfather’s residence

and took it home. Over the next couple of

months he showed it to his friends, including

Jeremiah Hauser and Christopher Beck. Sometimes

they would shoot the gun into the ground in a

storage shed on defendant’s property. On one

occasion, while the gun was being handled by a

friend of defendant’s named Chad Coleman, the

gun misfired even though Chad had not touched

the trigger or cocked the hammer. Still,

defendant and his friends thought the gun was

“cool.”
-3-

In addition to playing with guns, defendant

and his friends would pass the time by “cruising

Grand [Avenue].” Grand is a long, wide street

in Fort Smith, Arkansas, populated with numerous

fast food restaurants and like business

establishments. Many teenagers would cruise up

and down the street for hours. Also, teenagers

would hang out in the parking lots of the

business establishments along Grand and drink

beer, smoke
The district 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 in Appellee’s App. at 30.

-4-

pot, and not infrequently, get into fights.

Apparently, there was even some gang-like

activity on Grand, or at least defendant and his

friends thought that the “Bloods” hung out there

wearing red bandannas and gang-like athletic

wear. Also, teenagers who defendant and his

friends believed to be involved with gangs had

harassed them on one or two occasions prior to

the night of the shooting.

Id. at 313.

The shooting occurred on October 22, 1993. On that

day, Williams was on foot in the parking lot of a Harvest

Foods grocery store in Fort Smith, Arkansas. In that

same parking lot, Beck and Hauser were in a car driven by

Beck. On the floorboard of Beck’s car was the .22

caliber handgun that Burrough had stolen from his

grandfather. As Beck and Hauser drove by Williams, Beck

“flashed” the .22 caliber handgun towards Williams. The

handgun accidentally discharged, shooting Williams in the

neck. The bullet severed Williams’s spinal cord and left

him a quadriplegic.

Beck, who was sixteen years old at the time of the

shooting, had received the .22 caliber handgun from

Hauser. Hauser, who was fifteen or sixteen years old at

the time of the shooting, had obtained the handgun from 3

Burrough approximately two weeks prior to the shooting.
-5-

Burrough was fourteen years old when he gave the gun to

Hauser. 

In a deposition, Burrough later testified that he

gave the handgun to Hauser because Hauser was concerned

that Burrough would be caught with the handgun in

Burrough’s possession. See Joel Mark Burrough Dep. (Feb.

20, 1995) at 22, reprinted
-6-

in Appellee’s App. at 19. Burrough also testified that

he expected Hauser to return the handgun to him. Id. In

addition, Burrough claimed that he could not remember any

conversations with Hauser or Beck prior to the accidental

shooting incident. See id. at 29-30, reprinted in

Appellee’s App. at 26-27. However, Burrough also

testified that, prior to the shooting incident, Hauser

and Beck told him that “they had gotten in a fight at

school or something, or almost got in a fight, and they

said something about something on Grand . . . .” Id. at

29, reprinted in Appellee’s App. at 26. Finally,

Burrough testified that, when he gave the gun to Hauser,

it was loaded with several rounds of ammunition. See id.

at 30, reprinted in Appellee’s App. at 27.

Bell filed her Arkansas state court action on behalf

of herself and Williams, naming Beck, Hauser, and

Burrough as defendants. In her complaint, Bell alleged

that Beck negligently and recklessly shot Williams,

proximately causing damage to her and Williams. She

further alleged that Hauser and Burrough acted

negligently and recklessly in providing Beck with the .22

caliber handgun, which also proximately caused damage to

her and Williams. Allstate subsequently filed this

declaratory judgment action in the district court against

Burrough and Bell. Allstate seeks a declaration that,

under the terms of a homeowner’s insurance policy

purchased by Burrough’s father, Allstate has no

obligation to provide coverage for Burrough’s acts and

that Allstate consequently has no duty to defend Burrough

in the state court action.
-7-

The parties agree that at all relevant times Burrough

was covered by the Allstate homeowner’s insurance policy

purchased by Burrough’s father. The policy obligates

Allstate to pay, “[s]ubject to the terms, conditions and

limitations of this policy, . . . damages which an

insured person becomes legally obligated to pay because

of bodily injury or property damage arising from an

occurrence to which this policy applies . . . .”

Allstate Deluxe Plus Homeowners Policy, § II, Coverage X

Family Liability Protection (Policy), reprinted in

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-

[Allstate] will provide a defense with counsel of our

choice, even if the allegations are groundless, false or

fraudulent.” Id. (emphasis in original).

In its declaratory judgment action, Allstate moved

for summary judgment, asserting that, although Burrough

was insured under the policy at the time of Williams’s

shooting, coverage was excluded by operation of the

policy’s criminal acts exclusion. The criminal acts

exclusion provides that:

Losses We Do Not Cover Under Coverage X:

1. We [Allstate] do not cover any bodily injury

or property damage intended by, or which may

reasonably be expected to result from the

intentional or criminal acts or omissions

of, any insured person. This exclusion

applies even if:

a) such insured person lacks the mental

capacity to govern his or her conduct;

b) such bodily injury or property damage is

of a different kind or degree than that

intended or reasonably expected; or

c) such bodily injury or property damage is

sustained by a different person than

intended or reasonably expected.

This exclusion applies regardless of whether or

not such insured person is actually charged

with, or convicted of a crime.

Id., reprinted in Appellee’s App. at 6-7 (emphasis in

original).

The district court concluded that, although the state

of Arkansas never pressed criminal charges or adjudged

Burrough to be a juvenile delinquent, Burrough committed
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a criminal act under Arkansas law. Burrough, 914 F.

Supp. at 311-12. Specifically, the district court found

that Burrough had committed the offense of furnishing a

deadly weapon to a minor, in violation of Arkansas Code

Annotated § 5-73-109. Burrough, 914 F. Supp. at 311-12.

 In addition, the district court concluded that

“[Burrough] should have reasonably expected that someone

might be killed or injured when [Burrough] committed the

criminal act of providing a minor[, Hauser,]
-10-

with a firearm.” Id. at 314. Accordingly, the district

court held that Allstate is not obligated to provide

coverage for Burrough’s role in the accidental shooting

incident. Id. The district court also held that

Allstate has no duty to defend Burrough in the action

brought by Bell. Id. Bell appeals.

II.

On appeal, we review the district court’s grant of

summary judgment to Allstate de novo. See McCormack v.

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

Summary judgment is appropriate only if the record,

viewed in the light most favorable to the nonmoving

party, presents no genuine issues of material fact and

the moving party is entitled to judgment as a matter of

law. Id.; see also Fed. R. Civ. P. 56(c). A grant of

summary judgment is proper “[w]here the unresolved issues

are primarily legal rather than factual . . . .” Bank of

America Nat’l Trust & Savings Ass’n v. Shirley, 96 F.3d

1108, 1111 (8th Cir. 1996).

A federal court’s interpretation of an insurance

policy in a diversity case is governed by state law, and

accordingly, our interpretation of Allstate’s insurance

policy in this case is governed by Arkansas law. See

Dupps v. Travelers Ins. Co., 80 F.3d 312, 313 (8th Cir.

1996). “We review the district court’s interpretation of

Arkansas law de novo.” Id.

 

Under Arkansas law, “an insurance policy, having been

drafted by the insurer without consultation with the

insured, is to be interpreted and construed liberally in
-11-

favor of the insured and strictly against the insurer.”

Noland v. Farmers Ins. Co., 892 S.W.2d 271, 272 (Ark.

1995). However, the Arkansas Supreme Court has cautioned

that “[t]he terms of an insurance contract are not to be

rewritten under the rule of strict construction against

the company issuing it so as to bind the insurer to a

risk which is plainly excluded and for which it was not

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 policy language

controls . . . .” Id. at 181.

 

Under Arkansas law, “absent statutory strictures to

the contrary, exclusionary clauses are generally enforced

according to their terms.” Id. Although ambiguous

language in an exclusionary clause “should be construed

in favor of the insured,” State Farm Fire & Cas. Co. v.

Midgett, 892 S.W.2d 469, 471 (Ark. 1995) (quotations

omitted), such “ambiguity exists . . . only when a

provision is susceptible to more than one reasonable

interpretation.” Id. “The initial determination of

whether a contract is ambiguous rests with the court, and

when a contract is unambiguous, its construction is a

question of law for the court.” Hartford Fire Ins. Co.

v. Carolina Cas. Ins. Co., 914 S.W.2d 324, 326 (Ark. Ct.

App. 1996).

To prevail on its summary judgment motion in this

declaratory judgment action, Allstate had the burden of

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)

(holding that an insurer has the burden of proving that

an insured fell within an insurance policy exclusion).

To fit within the terms of the criminal acts exclusion,

Allstate needed to prove (1) that Burrough committed a

“criminal act” and (2) that Burrough could have

reasonably expected Williams’s injury to have resulted
Allstate 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. Bell first presents two related 4

arguments that challenge the first prong of this two-part

analysis. 

A.

Bell argues that, although furnishing a gun to a

minor is a criminal act under Arkansas law when 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 the

handgun to Hauser, committed a criminal act for purposes

of Allstate’s criminal acts exclusion. Bell thus argues

that the criminal acts exclusion is ambiguous and should

be construed against Allstate to find coverage for

Burrough’s act of furnishing a handgun to Hauser. We

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 weapon to a minor when he sells, barters, leases,

gives, rents, or otherwise furnishes a firearm or other

deadly weapon to a minor without the consent of a parent,

guardian, or other person responsible for general

supervision of his welfare.” Ark. Code Ann. § 5-73-

109(a) (Michie 1993). A minor is “any person under

eighteen (18) years of age.” Ark. Code Ann. § 5-73-

101(2) (Michie 1993).

In the present action, it is undisputed that Burrough

furnished a .22 caliber handgun to Hauser, who at the

time was a minor. It is also undisputed that no

responsible adult consented to the transfer.

Consequently, Burrough’s act of giving the handgun to

Hauser satisfied all the elements of the criminal offense

of furnishing a deadly weapon to a minor.

We recognize that Burrough, who was fourteen years

old when he handed over the handgun to Hauser, could not

be charged with or convicted of a § 5-73-109(a) offense

in a criminal proceeding. Arkansas’s juvenile courts
-15-

would have exclusive jurisdiction over Burrough with

respect to a § 5-73-109(a) offense. Compare State v.

Gray, 891 S.W.2d 376, 377 (Ark. 1995) (holding that the

“jurisdiction of the juvenile court is exclusive and

original with respect to all offenses charged against a

juvenile who is fourteen years old at the time of the

commission of those offenses, with the exception of

certain offenses enumerated in Ark. Code. Ann. § 9-27-

318(b)(1) (Repl. 1991)” (emphasis in original)) with Ark.

Code Ann. § 9-27-318(b)(1) (Michie 1993) (granting

prosecutorial discretion to charge fourteen-year-olds as

adults with certain
-16-

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

Therefore, for the act of furnishing a deadly weapon to

Hauser, Burrough could only be adjudged a juvenile

delinquent in a juvenile court. See Arkansas Juvenile

Code of 1989, Ark. Code Ann. § 9-27-301 to -352 (Michie

1993) (setting forth provisions dealing with juvenile

delinquency).

Although Burrough’s status as a juvenile prevents him

from being tried as an adult, the offense he committed is

still a criminal act. Neither § 5-73-109(a) nor the

provisions dealing with juvenile delinquency incorporate

an age-based exception to the offense of furnishing a

deadly weapon to a minor. Instead, § 5-73-109(a) applies

to any “person” who furnishes a deadly weapon to a minor,

see § 5-73-109(a), and the Arkansas Criminal Code

recognizes that a minor, such as Burrough, is a “person.”

See § 5-73-101(2).

Regardless of whether he could be tried as an adult

or be adjudged a juvenile delinquent, under the plain

language of the Arkansas Criminal Code, Burrough

committed an act defined as criminal. Hence, he

committed a criminal act for purposes of Allstate’s

criminal acts exclusion. Cf. Butler v. State, 922 S.W.2d

685, 689 (Ark. 1996) (construing Ark. Code Ann. § 9-27-

318(a) (Michie 1993) to hold that the state prosecutor

had to file “theft charges” in juvenile court against a

minor who was fifteen years old at the time that he

committed offenses in violation of the Arkansas Criminal

Code before the prosecutor could move to transfer the

“charges” to circuit court); Eichelberger v. State, 916

S.W.2d 109, 110-12 (Ark. 1996) (In holding that
-17-

application of a newly-enacted, punitive law “increased

the burden of the punishment” to juveniles and thereby

violated the Ex Post Facto Clause because application of

the newly-enacted law “makes more burdensome the

punishment for a crime, after its commission,” the court

impliedly recognized that two minors, who had been

adjudged delinquent, had committed a crime. (emphasis in

original)); Johnson v. State, 888 S.W.2d 661, 661 (Ark.

1994) (“Appellant was adjudged a juvenile delinquent for

committing the crimes of rape and robbery.”).
-18-

Given Allstate’s clear intention to exclude coverage

for criminal acts, Bell cannot create an ambiguity merely

by drawing a distinction based on the potential

consequences that flow from Burrough’s conduct. Nearly

every reported federal court decision interpreting

Allstate’s criminal acts exclusion has also concluded

that the criminal acts exclusion applies to minors. See

Allstate Ins. Co. v. Green, 831 F.2d 145, 147 (6th Cir.

1987) (“Under this language it is clear that if young

Robertson[, a fourteen-year-old boy,] had raped the girl

himself, his act would have been an intentional or

criminal act of an insured person and there would have

been no coverage for either of the Robertsons.”)

(Michigan law); Allstate Ins. Co. v. Cutcher, 920 F.

Supp. 796, 798-99 (N.D. Ohio 1996) (holding that, under

Ohio 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. 1994) (holding

that, under Georgia law, criminal acts exclusion applies

to acts of a minor), aff’d, 70 F.3d 1285 (11th Cir.

1995); Allstate Ins. Co. v. Carmer, 794 F. Supp. 871, 873

(S.D. Ind. 1991) (holding that criminal acts exclusion

applies to acts committed by a fourteen-year-old boy

because those acts constitute a violation of the Indiana

Criminal Code); but see Allstate Ins. Co. v. Lewis, 732

F. Supp. 1112, 1114-15 (D. Colo. 1990) (holding that,

under Colorado law, criminal acts exclusion does not

apply to the acts of a minor).

Finally, it makes no difference whether Burrough was,

or ever will be, adjudged a juvenile delinquent or

criminally convicted. Under the terms of the criminal

acts exclusion, coverage for bodily injury reasonably
-19-

expected to result from a criminal act is excluded

“regardless of whether or not such insured person is

actually charged with, or convicted of a crime.” Policy,

reprinted in Appellee’s App. at 7 (emphasis omitted).

Thus, as long as Williams’s injury was the reasonably

foreseeable result of Burrough’s criminal act, coverage

is excluded regardless of whether the state of Arkansas

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 person

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).

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B.

Bell also argues that a reasonable insured, in

purchasing a homeowner’s insurance policy from Allstate,

would not understand or realize that the criminal acts

exclusion contained in that policy excluded coverage for

the act of furnishing a handgun to a minor. Consequently, Bell

argues that the criminal acts exclusion should be

construed against Allstate. We disagree.

As a party to a contract governed by Arkansas law, a

reasonable insured would understand that a criminal acts

exclusion would exclude coverage for acts defined as

criminal by the Arkansas Criminal Code. Under the

Arkansas Criminal 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 the time Burrough gave the .22 caliber handgun to

Hauser, a violation of § 5-73-109(a) was defined as a

Class A misdemeanor, see Ark. Code Ann. § 5-73-109(b),

punishable 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 had

been adjudged a delinquent, the juvenile court could at

its discretion have committed him to a youth services

center, see Ark. Code Ann. § 9-27-330(3) (Michie 1993),
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or placed him on probation. See Ark. Code Ann. § 9-27-

330(4) (Michie 1993). 

Given the potential loss of liberty for furnishing a

handgun to a minor, a reasonable insured would realize

that such an act is a criminal act. Any other

interpretation of the criminal acts exclusion by this

Court would rewrite the clear terms of Allstate’s policy

and force Allstate to bear a risk “which is plainly

excluded and for
-22-

which it was not paid.” Smith, 937 S.W.2d at 182

(quotations and citations omitted). 

III.

Bell argues that Allstate did not meet its burden of

proving as a matter of law that Burrough could have

reasonably expected Williams’s injury to have resulted

from his act of furnishing a handgun to Hauser. We

disagree.

To determine whether Allstate met its burden, we must

determine whether a reasonable person would find that

Williams’s injuries were the natural, probable, and

foreseeable 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 “an

[insurance policy] exception excluding coverage for

personal injury which is ‘expected or intended’ by the

insured” to mean “the policy exception excludes coverage

for injuries which the average run of reasonable people

would expect or intend to inflict by engaging in the

conduct in question”); Mahan v. Hall, 897 S.W.2d 571, 573

(Ark. 1995) (applying objective definition of

negligence); Bushong v. Garman Co., 843 S.W.2d 807, 812

(Ark. 1992) (applying objective definition of

unreasonably dangerous); Allstate Ins. Co. v. Brown, 16

F.3d 222, 225 (7th Cir. 1994) (holding that, under

Indiana law, an objective standard must be applied to

interpret a criminal acts exclusion nearly identical to

the criminal acts exclusion at issue in the present

action and that “[t]he phrase [’reasonably expected’] is

meant to ensure that the policy’s exclusions apply only
-23-

to those injuries most likely to result from the

insured’s intentional or criminal conduct.”). 

The undisputed material facts demonstrate that a

reasonable person would have expected Williams’s injuries

to result from the act of furnishing Hauser with a loaded

.22 caliber handgun that had previously misfired. Based

on past experience, Burrough knew that Hauser and Beck

were likely to cruise up and down Grand avenue where

teenagers hang out in the parking lots, drink beer, smoke

marijuana, and get into fights. 
-24-

Furthermore, Burrough knew that, on at least one previous

occasion, Burrough and his friends had been harassed by

teenagers believed to be involved in gangs. Finally,

Burrough knew that the gun had misfired on at least one

previous occasion and that the gun was loaded when he

handed it over to Hauser.

Given this knowledge, a reasonable insured would have

expected that 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 furnishing

Hauser with a loaded, malfunctioning handgun. We reach

this conclusion, notwithstanding the fact that Beck,

rather than Hauser, was the one who accidentally fired

the gun. Regardless of which one of Burrough’s friends

held the gun when it misfired, once Burrough handed over

a loaded, malfunctioning gun to Hauser, Burrough should

have reasonably expected that an incident like the one

that took place would happen.

IV.

For the foregoing reasons, we affirm.

McMILLIAN, Circuit Judge, dissenting.

I respectfully dissent. Because I believe that the

exclusion for “criminal acts” is ambiguous and must be

construed in favor of Burrough as a matter of law and,

alternatively, that a genuine issue of material fact

exists as to Burrough’s reasonable expectations, I would

reverse.
-25-

To prevail in its declaratory judgment action,

Allstate was required to prove that the policy’s criminal

acts exclusion applied to exclude Burrough from coverage

by showing that: (1) Burrough committed a criminal act

to which the criminal acts
As 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) Burrough could have reasonably 6

expected Williams’s injury to result from the criminal

act. See Arkansas Farm Bureau Ins. Fed’n v. Ryman, 831

S.W.2d 133, 134-35 (Ark. 1992) (an insurer has the burden

of proving that an insured fell within an insurance

policy exclusion). To prevail on summary judgment,

Allstate was required to show that no genuine issue of

material fact exists as to either of those requirements

and that it is entitled to judgment as a matter of law.

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

Catrett, 477 U.S. 317, 322-23 (1986); Anderson 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, 699

(8th Cir. 1992). For the reasons set forth below, I

would hold that the term “criminal acts” within the

policy’s criminal acts exclusion is ambiguous as applied

to minors and, accordingly, should be construed against

Allstate as a matter of law to provide coverage for

Burrough. See Keller v. Safeco Ins. Co. of Am., 877

S.W.2d 90, 92 (Ark. 1994) (Keller) (court construes

ambiguous insurance contract to justify recovery for

insured). Alternatively, I would hold that a genuine

issue of material fact exists as to whether Burrough

could have reasonably expected Williams’s injuries to

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 act

when committed by an adult, under the Arkansas Juvenile

Code of 1989, Ark. Code Ann. §§ 9-27-301 to -368 (Michie

Repl. 1993) (the juvenile code), it is a delinquent act

when committed by a juvenile.
-28-

The juvenile code defines, in pertinent part, a

juvenile as an individual who “[i]s under the age of

eighteen (18) years.” Ark. Code Ann. § 9-27-303(1)(A).

A delinquent juvenile is defined as “any juvenile ten

(10) years or older who has committed an act . . . which,

if such act had been committed by an adult, would subject

such adult to prosecution for a felony, misdemeanor, or

violation under the applicable criminal laws of this

state.” Id. § 9-27-303(11). Generally, when such an act

occurs, the prosecuting attorney files a delinquency

petition in the juvenile division of the chancery court

(hereinafter, juvenile court). Id. § 9-27-310. The

juvenile court has exclusive and original jurisdiction of

all offenses charged against a juvenile who is fourteen

or fifteen years old at the time of the commission of

those offenses, with the exception of certain offenses

enumerated in § 9-27-318(b)(1). Id. § 9-27-318(a)(3);

State v. Gray, 891 S.W.2d 376, 377 (Ark. 1995). For the

limited offenses listed in § 9-27-318(b)(1), none of

which is involved in this case, the prosecuting attorney

may choose either to file a petition in juvenile court

alleging delinquency or to file charges in circuit court

and 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 juvenile

proceeding to circuit court based upon § 9-27-318(c)).

The Arkansas Supreme Court recently disapproved of the

extent of discretion given prosecutors in prosecuting a

juvenile as an adult and issued a caveat “that in

juvenile transfer cases tried after this date, we will

consider anew our interpretation of the juvenile code,”

Sanders v. State, 932 S.W.2d 315, 319 (Ark. 1996),

indicating an intention that juveniles be protected under
-29-

the juvenile code. Cf. McKeiver v. Pennsylvania, 403

U.S. 528, 545, 546 n.6 (1971) (the ideal of separate

treatment for children through an intimate, informal

protective juvenile proceeding “is still worth

pursuing”); Valdez v. State, 801 S.W.2d 659, 661 (Ark.

Ct. App. 1991) (“The revisions found in the Juvenile Code

of 1989 were designed to promote and further safeguard

the interests of accused juvenile offenders.”).

Because furnishing a deadly weapon in violation of

§ 5-73-109 is not an offense which is excepted from the

juvenile court’s exclusive jurisdiction under

§ 9-27-18(b)(1), Burrough, who was fourteen years old at

the time of his relevant acts,
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was not subject to criminal charges for giving the

handgun to Hauser. In holding that "[t]he criminal acts

exclusion applies so long as the insured engages in

conduct which is described as criminal in the penal code,

'regardless of whether or not such insured person is

actually charged with, or convicted of a crime,'"

Allstate Ins. Co. v. Burrough, 914 F. Supp. 308, 312

(W.D. Ark. 1996) (Burrough) (quoting Policy, reprinted in

App. for Appellee at 7) (emphasis omitted), the district

court failed to recognize the distinction between an act

for which an individual is actually charged or convicted

and an act for which an individual can be actually

charged or convicted. Under Arkansas law, Burrough

cannot be charged in circuit court or convicted

criminally of furnishing a handgun to a minor. Because

Burrough committed an act which would be a criminal act

if committed by an adult but for which he, as a fourteenyear-old, cannot be criminally charged or convicted under

state law, the criminal acts exclusion in the policy may

be reasonably interpreted as inapplicable to these

circumstances. The criminal acts exclusion is therefore

ambiguous as applied to Burrough’s act of giving a

handgun to Hauser and must be construed to not exclude

coverage for Burrough. See Keller, 877 S.W.2d at 92.

The district court also reasoned that, because the

policy does not cover mental incompetents for their

criminal acts for which they cannot be prosecuted, it

should be construed as excluding minors for their

criminal acts for which they cannot be prosecuted.

Burrough, 914 F. Supp. at 312. However, under the

district court's reasoning, the mental incompetents

provision of the criminal acts exclusion is susceptible
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to more than one meaning as to which individuals are

included within the classification of mental

incompetents. Specifically, an insured cannot determine

whether the term “mental incompetents” includes only

individuals adjudicated mentally incompetent, or whether

it includes minors based on their legal incapacity.

Therefore, the ambiguous mental incompetents provision

must not be construed to include minors, see Keller, 877

S.W.2d at 92, and, thus, cannot be used to justify

application of the criminal acts exclusion to minors. 
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In addition to the inherent ambiguity in the phrase

“criminal acts” as applied to minors, I would also hold

that the criminal acts exclusion is ambiguous insofar as

it excludes coverage for “any bodily injury . . . which

may reasonably be expected to result from the intentional

or criminal acts . . . of, any insured person . . . even

if . . . such bodily injury . . . is of a different kind

or degree than that . . . reasonably expected.” Policy,

reprinted in App. for Appellee at 6 (emphasis omitted).

This provision creates a virtually limitless category of

acts for which the insured will not be covered under the

policy by excluding not only bodily injury which an

insured may reasonably expect to result from his

intentional or criminal act, but also, bodily injury of

a different kind or degree than that which the insured

reasonably expected. I doubt this interpretation

represents the reasonable expectations of an insured who

enters into this insurance contract. See Enterprise

Tools, Inc. & E.B. v. Export-Import Bank, 799 F.2d 437,

442 (8th Cir. 1986), cert. denied, 480 U.S. 931 (1987).

This provision is susceptible of more than one meaning as

to when bodily injury may be reasonably expected to

result from the intentional or criminal acts of an

insured and, therefore, must be construed in favor of the

possible interpretation that Burrough be denied coverage

only for injuries resulting directly from his act of

giving the gun to Hauser and not from Beck’s subsequent

acquisition of the gun and accidental shooting of

Williams. See Keller, 877 S.W.2d at 92. 

Finally, my construction of the policy in favor of

coverage for Burrough does not unduly burden Allstate

because, as the insurer and drafter of the policy,

Allstate could have expressly included minors within the
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criminal acts exclusion. See Foremost Ins. Co. v.

Sheppard, 610 F.2d 551, 557 (8th Cir. 1979) (interpreting

Arkansas insurance law). Allstate failed to do so, and

I would not read such a meaning into the policy. 

II. Burrough’s Reasonable Expectations

Alternatively, I would reverse on the basis that

Burrough could not have reasonably expected Williams’s

injury to result from his act because the relationship
I caution that the majority opinion’s conclusion that “once Burrough handed

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 13, may have a preclusive

effect on the issue of causation in Bell’s state court action. Accordingly, I offer no

opinion on the issue of causation, but only express my belief that a genuine issue of

material fact exists as to Burrough’s reasonable expectations.

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between Burrough’s giving the gun to Hauser and Beck’s

accidental shooting of Williams is too tenuous to qualify

for exclusion. I believe the district court’s disposition of this issue on

7

summary judgment was erroneous because Burrough’s deposition testimony, Exhibit

C, reprinted in App. for Appellee at 12-27, creates a genuine issue of material fact as

to whether Burrough 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

insurance policy excluded from coverage “bodily injury . . . which is either expected

or intended from the standpoint of the insured,” evidence that insured did not intend or

expect resulting injury raised a question of fact and precluded summary judgment for

insurer). Furthermore, Burrough’s reasonable expectations must be assessed in the

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 bodily

injuries which may “reasonably be expected to result from the intentional or criminal

acts of an insured person” focuses on objective conduct and not merely on the

subjective expectations or intentions of the insured, “the excluded injuries must be

those expected by a reasonable 13-year-old”), aff’d, 70 F.3d 1285 (11th Cir. 1995)

(table).

Accordingly, I would reverse the district court's grant of summary judgment in

favor of Allstate and remand the case to the district court with directions to enter

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.
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A true copy.

Attest:

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