                                  _____________

                                  No. 96-1398NI
                                  _____________

Gary Ellensohn,    *
                                        *
                   Appellant,           *
                                        *
        v.                              *
                                        *
American Family Mutual                  *
Insurance Company,                      *
                                        *   Appeal from the United States
                 Appellee.              *   District Court for the Northern
____________________                    *   District of Iowa.
                                        *
Donald Ellensohn,                       *           [PUBLISHED]
                                        *
                   Appellant,           *
                                        *
        v.                              *
                                        *
American Family Mutual                  *
Insurance Company,                      *
                                        *
                   Appellee.            *
                                  _____________

                       Submitted:    September 13, 1996

                         Filed:    September 23, 1996
                                  _____________

Before FAGG, LAY, and MURPHY, Circuit Judges.
                              _____________


PER CURIAM.


        Theophil Miller sued Gary and Donald Ellensohn for intentional
infliction of emotional distress, alleging the Ellensohns tried to cheat
Miller, a man they knew was mentally retarded, out of part of his soybean
crop.    The Ellensohns asked their insurer, American Family Mutual Insurance
Company (AFM), to defend and indemnify them under their separate but
apparently identical liability policies.     AFM denied coverage and refused
to defend.    The Ellensohns settled
with Miller, and then brought this breach of contract action against AFM.
After trial on stipulated facts, the district court entered judgment for
AFM because the Ellensohns' allegedly fraudulent conduct was not a covered
"occurrence" under their policies and because a policy exclusion applied.
The Ellensohns appeal, and we affirm.


     Iowa law controls this diversity action.      Saint Paul Fire & Marine
Ins. Co. v. Salvador Beauty College, Inc., 930 F.2d 1329, 1330 (8th Cir.
1991).    Under Iowa law, an insurer has "no duty to defend unless there is
a duty to indemnify."     Yegge v. Integrity Mut. Ins. Co., 534 N.W.2d 100,
102 (Iowa 1995).    Hence we need only decide whether AFM breached any duty
to pay on the Ellensohns' claim.    The scope of AFM's duty is determined by
the policies' insuring and exclusionary clauses.     Ide v. Farm Bureau Mut.
Ins. Co., 545 N.W.2d 853, 857 (Iowa 1996).   If the Ellensohns' claim is not
within any insuring clause, the analysis stops there.      Id.


     The relevant insuring clause requires AFM to pay damages its insured
becomes obligated to pay because of harm caused by an occurrence.        The
policies define "occurrence" as "an accident, including continuous or
repeated exposure to substantially the same general harmful conditions."
The Ellensohns admit in their brief that their conduct giving rise to
Miller's claims was not accidental.        They nevertheless contend their
conduct is covered because they did not intend or expect to injure Miller.
See First Newton Nat'l Bank v. General Cas. Co. of Wis., 426 N.W.2d 618,
624-25 (Iowa 1988); West Bend Mut. Ins. Co. v. Iowa Iron Works, Inc., 503
N.W.2d 596, 600-01 (Iowa 1993).    These cases, however, interpret policies
that define "occurrence" as "an accident . . . which results in bodily
injury or property damage neither expected nor intended from the standpoint
of the insured."    First Newton, 426 N.W.2d at 624-25; West Bend, 503 N.W.2d
at 600.   By contrast, the Ellensohns' policies define "occurrence" simply
as "an accident."    Because the Ellensohns candidly acknowledge their own




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actions did not constitute accidental conduct, we conclude their conduct
was not a covered "occurrence" under their policies with AFM.     See also
Yegge, 534 N.W.2d at 102-03 & n.3 (no occurrence where policy defines
"occurrence" as "accident" and insured's behavior was not "accidental
conduct").


       Even if First Newton and West Bend controlled the interpretation of
"occurrence" as defined in the Ellensohns' policies, and thus required
intent to injure to sustain AFM's denial of coverage, this intent could be
inferred from the nature of the Ellensohns' conduct "and the accompanying
reasonable foreseeability of harm."   Altena v. United Fire and Cas. Co.,
422 N.W.2d 485, 488 (Iowa 1988).   To borrow the district court's phrase,
Miller's complaint alleges the Ellensohns knowingly duped a retarded man
and stole his soybeans.     From this conduct and the foreseeability of
Miller's mental distress, we would infer intent to injure as a matter of
law.


       Because AFM has no duty to pay claims outside the scope of the
policies' insuring clauses, we affirm the judgment of the district court
without considering the policies' exclusionary clauses.


       A true copy.


             Attest:


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




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