                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                              JAN 31 2000
                                 TENTH CIRCUIT
                            __________________________                   PATRICK FISHER
                                                                                  Clerk

 ZURICH REINSURANCE (LONDON)
 LIMITED,

           Plaintiff-Appellee,
                                                           No. 99-7101
 v.                                                         (E.D. Okla.)
                                                     (D.Ct. No. 98-CV-594-S)
 JAMES CURTIS REMALEY,

           Defendant-Appellant,

 and

 WESTVILLE RIDING CLUB, INC.,

           Defendant.
                           ____________________________

                                 ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, 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          This order and judgment is not binding precedent except under the doctrines of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.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Appellant James Curtis Remaley appeals the district court’s decision

granting summary and declaratory judgment to Appellee Zurich Reinsurance

(London) Limited (Zurich), based on its holding the insurance policy at issue does

not provide liability coverage or a duty to defend the claims by Mr. Remaley

against the Westville Riding Club, Inc. (Westville). We exercise jurisdiction

under 28 U.S.C. §1291 and affirm.



                              A. Factual Background

      We begin with a brief discussion of the undisputed facts from which this

controversy arises. On July 16, 1998, Westville sponsored a rodeo competition

which Mr. Remaley attended as a spectator. Scheduled events included calf

roping, bull riding, saddle bronc, bareback, barrel racing and team roping.

Another scheduled event, called “Money the Hard Way,” involved the rodeo

announcer inviting members of the general audience to voluntarily enter the rodeo

arena and attempt to remove a ribbon from a bull’s horn in order to win a $50

cash prize. Mr. Remaley was the only audience member who accepted the rodeo

announcer’s invitation to leave the stands and participate in “Money the Hard


                                        -2-
Way.” After Mr. Remaley entered the rodeo arena and attempted to remove the

ribbon from the bull’s horn, the bull “head butted” him, causing Mr. Remaley to

sustain bodily injuries.



      The issue before this court is whether Zurich is responsible under a general

liability, commercial insurance policy with Westville to provide liability coverage

and defend Westville on claims made by Mr. Remaley for his injuries.

Specifically, we are asked to interpret an exclusionary endorsement contained in

the insurance policy Westville purchased from Zurich. This exclusionary

provision is entitled “EXCLUSION – ATHLETIC OR SPORTS

PARTICIPANTS.” It includes a “Schedule” that describes the operation on which

general liability coverage exists as including: “Rodeos, including Products and/or

Completed Operations.” It also contains a statement on activities excluded from

coverage:

      With respect to any operations shown in the Schedule, this insurance
      does not apply to “bodily injury” to any person while practicing for
      or participating in any sports or athletic contest or exhibition that
      [Westville] sponsor[s].

(Emphasis added.)



                            B. Procedural Background

      In an attempt to determine its rights and duties under the insurance policy,

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Zurich filed a complaint seeking declaratory judgment. The parties eventually

filed motions for summary judgment on the issue of coverage under the

exclusionary provision at issue. The district court issued a well-reasoned decision

granting summary and declaratory judgment in favor of Zurich. After applying

Oklahoma law on the interpretation of insurance contracts and reviewing cases

involving interpretation of same or similar exclusionary language, the district

court determined the provision to be unambiguous and excluded coverage for Mr.

Remaley’s participation in “Money the Hard Way.”



      In applying a four-part analysis, the district court first determined “Money

the Hard Way,” constituted a “contest” because Mr. Remaley, and potentially

others, competed to win $50 by removing the ribbon from the bull’s horn. 1

Second, the district court determined “Money the Hard Way” constituted a contest

of an “athletic or sports nature,” because participants, who physically exerted

themselves by attempting to remove the ribbon from the bull’s horn, engaged in

physical activity for the pleasure of the competition itself and the possibility of




      1
         The district court held these circumstances sufficient to meet the dictionary
definition of “contest” which means “a struggle for superiority or victory: competition.”
Webster’s Ninth New Collegiate Dictionary at 283 (1986).


                                           -4-
winning money. 2 Third, the district court found it undisputed Westville sponsored

the rodeo and made the decision to sponsor the event called “Money the Hard

Way.” Finally, the district also found it undisputed Mr. Remaley received his

injuries while participating in “Money the Hard Way.” 3 Based on these

conclusions, the district court held the policy afforded no liability coverage to

Westville for Mr. Remaley’s claims, and therefore, Zurich owed no duty to defend

Westville, pay any judgment entered against Westville, or make payments to

anyone under the terms of the policy.



       On appeal, Mr. Remaley suggests a plain reading of the exclusionary

provision, based on common definitions, shows Mr. Remaley cannot be classified

as a participant in a sports or athletic contest or exhibition. Specifically, Mr.

Remaley places great emphasis on the fact he is not a professional or trained

athlete. While Mr. Remaley relies on a “plain reading” of the exclusionary


       2
         The district court based this determination, in part, on the definition of “sport” as
“a source of diversion: recreation ... physical activity engaged in for pleasure.”
Webster’s Ninth New Collegiate Dictionary at 1141 (1986).

       3
          In its decision, the district court also discussed cases on which Mr. Remaley
relied, finding their holdings distinguishable because the injured parties were not
“participants” in the principal contest or athletic event, unlike Mr. Remaley who
participated in an event regularly scheduled as part of the rodeo and which took place in
the rodeo arena.


                                             -5-
provision, he also contends the endorsement is ambiguous, requiring an

interpretation against Zurich as the insurer. Finally, Mr. Remaley suggests the

district court’s interpretation of the exclusionary provision is contrary to public

policy because it holds the spectator to the same standard as an active

participant. 4



                                  C. Standard of Review

       We review a grant of summary judgment de novo. West Am. Ins. Co. v. AV

& S, 145 F.3d 1224, 1227 (10th Cir. 1998). Because this is a diversity case and

the accident occurred in Oklahoma, we apply the forum state’s choice of law. Id.

Under Oklahoma law, an insurance policy is liberally construed, consistent with

the object to be accomplished. See Dodson v. St. Paul Ins. Co., 812 P.2d 372,

376 (Okla. 1991). The Oklahoma courts have stated:

       The construction of an insurance policy should be a natural and
       reasonable one, fairly constructed to effectuate its purpose, and
       viewed in the light of common sense so as not to bring about an
       absurd result.

                 The terms of the parties’ contract, if unambiguous, clear and


       4
         In addition, Mr. Remaley suggests Zurich is legally obligated to pay damages in
the event we reverse the district court’s decision and determine the exclusionary provision
does not apply. Given our affirmation of the district court’s decision, we need not
address this issue. Moreover, we note this issue is outside the issues presented to, and
ruled on by, the district court in its decision on summary judgment.


                                            -6-
      consistent are accepted in their plain and ordinary sense, and the
      contract will be enforced to carry out the intention of the parties as it
      existed at the time the contract was negotiated.

Id. (quotation marks and citations omitted).



                                     D. Discussion

      Proceeding with these standards in mind, and based on our independent

review of the insurance policy’s exclusionary provision and the record, we hold

the policy excludes coverage to Westville for Mr. Remaley’s injuries. First, we

hold the terms in the provision are of common usage and, if read in their plain

and ordinary sense, are not ambiguous. Our determination comports with the

majority of cases interpreting the same or almost identical exclusionary language, 5

and with the interpretation of Westville officials. 6 It also comports with the

intended object of the insurance policy, as evidenced by the testimony of a

      5
          In interpreting the same or similar exclusionary provision, a majority of the
courts either explicitly or implicitly determined the terms contained within the provision
were unambiguous, regardless of the courts’ ultimate application of the provision and
holding. See 35 A.L.R.5th 731 (1996 ed. & 1999 Supp.) (citing fourteen cases involving
the same or similar provision); see also Benton County Agric. Soc’y v. St. Paul Surplus
Lines Ins. Co., 372 N.W.2d 383, 384 (Minn. Ct. App. 1985) (same or similar provision).
But see Clermont Cent. Soccer Ass’n v. Cincinnati Ins. Co., 676 N.E.2d 1281, 1282 (Ohio
Misc. 1995) (finding word “participant” ambiguous); Zoller v. State Bd. of Educ., 278
So.2d 868, 870 (La. App. 1973) (finding word “practicing” ambiguous).

      6
         These officials admitted “Money the Hard Way” constituted a rodeo event and a
contest or sporting event.


                                           -7-
Westville official who admitted Zurich issued the policy for the purpose of

covering injuries to spectators, not participants. Given Zurich did not intend to

cover injuries sustained from calf roping, bull riding, saddle bronc, bareback,

barrel racing and team roping, an extension of coverage for injuries received from

chasing a bull in the same arena would produce an unintended, if not absurd,

interpretation of the exclusionary provision.



      As to the application of the exclusionary provision to the circumstances in

this case, the district courts clearly explained, in its four-part analysis, why Mr.

Remaley qualified as a participant in a sport or athletic contest. We agree with its

analysis and decline to duplicate it here. Finally, the district court’s interpretation

of the provision is not contrary to public policy. Mr. Remaley incorrectly

contends the district court is holding him, as a spectator, to the same standard as

an active participant. However, when Mr. Remaley entered the arena for “Money

the Hard Way,” his status changed from spectator to an active participant. Thus,

he is merely being held to the same standard as other participants, and not to the

standard of those who elected to remain passively outside the arena or seated in

the stands. While we are sympathetic Mr. Remaley received injury, his remedy, if

any, does not lie with Zurich.




                                          -8-
      For these, and substantially the same reasons articulated in the district

court’s July 22, 1999 Order, we AFFIRM summary and declaratory judgment in

favor of Zurich.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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