                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                           May 3, 2017
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
STATE FARM FIRE AND CASUALTY
COMPANY,

      Plaintiff - Appellee,

v.                                                         No. 16-6356
                                                   (D.C. No. 5:15-CV-01068-M)
CHARLES DAWSON,                                          (W.D. Oklahoma)

      Defendant - Appellant,

and

SUMMER STOCKBRIDGE,

      Defendant.
                         _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
                   _________________________________


      This is an appeal from the district court’s grant of summary judgment in favor

of State Farm Fire and Casualty Company (State Farm) for declaratory judgment

against its insured, Charles Dawson. The district court ruled that Mr. Dawson’s

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
homeowner’s policy did not provide coverage for claims asserted against Mr.

Dawson in a civil action brought against him by a former student. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

                                I.     BACKGROUND

                                 A.    Factual History

      Mr. Dawson was employed as a mathematics teacher at Wanette High School

in Wanette, Oklahoma. During that time, he engaged in inappropriate

communications with one of his students. By the time the parents of the student

discovered the relationship, Mr. Dawson had requested and received nude pictures of

the student via text messages. Mr. Dawson was criminally prosecuted. The student

withdrew from Wanette High School and finished her high school education through

on-line courses.

      The student brought a lawsuit against Mr. Dawson in the District Court of

Pottawatomie County, State of Oklahoma, seeking damages for invasion of privacy,

intrusion on seclusion, negligence, and negligence per se (the State Court Action).1

Mr. Dawson tendered the defense of the State Court Action to State Farm under a

policy of homeowners insurance issued to him by State Farm (the Policy). In

response, State Farm provided a defense to Mr. Dawson in the State Court Action,

but did so under a reservation of its rights to contest coverage.




      1
       The action was initially brought by the student’s parents on her behalf, but
she was substituted as the plaintiff upon reaching majority.
                                            2
                              B.         Procedural History

      State Farm filed this action in the United States District Court for the Western

District of Oklahoma, seeking a declaration that the Policy provided no coverage for

the claims made against Mr. Dawson in the State Court Action. After full briefing

and hearing, the district court granted State Farm’s motion for summary judgment

and entered a declaratory judgment that the Policy did not provide such coverage.

      Mr. Dawson filed a timely appeal. For essentially the same reasons stated by

the district court, we affirm the declaration of no coverage.

                                   II.     DISCUSSION

                              A.         Standard of Review

      We review the district court’s grant of summary judgment de novo, applying

the same legal standard as the district court. Certain Underwriters at Lloyd’s London

v. Garmin Int’l, Inc., 781 F.3d 1226, 1229 (10th Cir. 2015). Summary judgment is

appropriately granted where “the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). When applying this standard, we view the record evidence and all

reasonable inferences therefrom in the light most favorable to the non-moving party.

Cornhusker Cas. Co. v. Skaj, 786 F.3d 842, 850 (10th Cir. 2015). And because this is

a diversity action, we apply the substantive law of the forum state—here, Oklahoma.

Id.




                                              3
                                  B.        Oklahoma Law

         In Oklahoma, insurance policies are interpreted as a matter of law under the

rules applicable to other contracts. BP Am., Inc. v. State Auto Prop. & Cas. Ins. Co.,

148 P.3d 832, 835 (Okla. 2005). “When policy provisions are unambiguous and clear,

the employed language is accorded its ordinary, plain meaning; and the contract is

enforced carrying out the parties’ intentions. The policy is read as a whole, giving the

words and terms their ordinary meaning, enforcing each part thereof.” Id. Although it

is the insurer’s responsibility to draft clear provisions, the Oklahoma courts “will not

impose coverage where the policy language clearly does not intend that a particular

individual or risk should be covered.” Id. at 835–36; see also Am. Econ. Ins. Co. v.

Bogdahn, 89 P.3d 1051, 1054 (Okla. 2004) (“[C]ourts are not at liberty to rewrite the

terms of an insurance contract.”).

                                       C.    The Policy

         The district court granted summary judgment on the ground that the Policy

unambiguously provides no coverage for the claims asserted against Mr. Dawson in

the State Court Action. Specifically, the court concluded that the claims do not seek

to recover for “bodily injury” or “property damage” as defined in the Policy. We

agree.

         The Policy provides, in relevant part:

         SECTION II—LIABILITY COVERAGES

         COVERAGE L—PERSONAL LIABILITY



                                               4
       If a claim is made or a suit is brought against an insured for damages because
       of bodily injury or property damage to which this coverage applies, caused
       by an occurrence, we will:

              1. pay up to our limit of liability for the damages for which the insured is
                 legally liable; and

              2. provide a defense at our expense by counsel of our choice. . . .

       The Policy provides definitions of each of the bolded terms. For example,

“bodily injury” is defined as “physical injury, sickness, or disease to a person. . . .”

Importantly, for our purposes, the definition continues, stating that bodily injury does

not include “emotional distress, mental anguish, humiliation, mental distress, mental

injury, or any similar injury unless it arises out of actual physical injury to some

person.” And “property damage” is defined by the Policy as “physical damage to or

destruction of tangible property, including loss of use of this property. . . .”

       As a result, coverage under the Policy was triggered only if the State Court

Action included claims for either “bodily injury” or “property damage,” as those

terms are defined by the Policy. We agree with the district court that Mr. Dawson has

failed to raise a genuine issue of material fact that the State Court Action does so.

                                 D.     Physical Injury

       Mr. Dawson presented no evidence in opposition to summary judgment from

which a trier of fact could find that the claims in the State Court Action were for

physical injury. The petition in the State Court Action is devoid of any reference to

physical injury, sickness, or disease. And as the district court noted, the student’s

opposition to State Farm’s Motion for Summary Judgment in this case did not dispute


                                             5
State Farm’s statement of undisputed fact no. 25, which asserts that the student did

not suffer any physical injuries as a result of Mr. Dawson’s conduct. Indeed, the

student testified that she had not suffered any physical injuries due to Mr. Dawson’s

inappropriate behavior.

      On appeal, Mr. Dawson contends the district court erred in concluding there

was no genuine issue of material fact with respect to physical injury because the

student’s mother testified that she was “not sure” whether the student suffered

physical injury. We agree with the district court that this testimony does not preclude

summary judgment on this issue. The mother testified as follows:

      Q: Do you feel like [the student] was physically harmed in any way by
      any of the occurrences that are alleged in this lawsuit?

      A: I don’t know if I would say physically or – definitely mentally.

      Q: Okay. Well, let’s talk about physically just for a minute. Do you
      – do you believe that [the student] was physically harmed in any way
      by any of the occurrences that are alleged in this lawsuit?

      A: I’m not sure on that.

      Q: In your mind, is there a possibility of a physical injury, that you
      have something in mind that we need to talk about?

      A: I don’t have anything in mind.

Contrary to Mr. Dawson’s argument, we see nothing in the mother’s testimony that

could support a finding that the student suffered physical injury as a result of Mr.

Dawson’s actions.

      To establish a genuine issue of material doubt, the nonmoving party must do

more than raise a “metaphysical doubt”; he must come forward with “specific facts

                                           6
showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd., v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Neustrom v. Union Pac. R.R.

Co., 156 F.3d 1057, 1066 (10th Cir. 1998). Mr. Dawson has failed to meet that

standard here and summary judgment on this issue was appropriate.2

                               E.     Property Damage

      Mr. Dawson next contends that even if the State Court Action does not assert

claims for physical injury, he has raised a genuine issue of material fact as to whether

it seeks recovery for “property damage.” Again, we agree with the district court that

summary judgment was appropriate on this issue.

      Recall that the Policy defines “property damage” as “physical damage to or

destruction of tangible property, including loss of use of this property.” The student’s

petition in the State Court Action makes no allegations of damage to any item of

“tangible property.” And in their responses to State Farm’s motion for summary

judgment in this action, neither the student nor Mr. Dawson identified any evidence

that the student had made such a claim.

      As he did in the district court, Mr. Dawson claims on appeal that the student

lost her property interest in being educated at a “brick and mortar” public school, as

opposed to on-line. But even if we assume for purposes of argument that this alleged



      2
         In the district court, Mr. Dawson also argued that the Policy’s exclusion of
emotional injury from the definition of physical harm should be disregarded. He does
not raise that issue on appeal, and in any event, we do not have liberty to ignore the
Policy’s plain language.

                                            7
loss is fairly characterized as a property interest for some purposes, it is not “property

damage” as defined by the Policy because it is not damage to “tangible property.”

       The Policy does not define “tangible property.” We therefore give the term its

plain and ordinary meaning. Serra v. Estate of Broughton, 364 P.3d 637, 641 (Okla.

2015). “Tangible” has been defined as “that can be touched or felt by touch; having

actual form and substance.” Tangible, Webster’s New World College Dictionary (3d

ed. 1997). And Black’s Law Dictionary defines “tangible property” as “[p]roperty

that has physical form and substance and is not intangible. That which may be felt or

touched, and is necessarily corporeal, although it may be either real or personal (e.g.

ring or watch).” Tangible Property, Black’s Law Dictionary (6th ed. 1994). The

Oklahoma Supreme Court has recognized this same definition, stating:

       At common law “tangible personal property” refers to rights in tangible
       physical things of the world over which possession may be taken.
       “Intangible personal property” encompasses property rights which—
       though represented by tangible objects (e.g., stock certificates, bonds
       and notes)—are essentially incorporeal in that they have limited
       intrinsic value and ultimately can only be claimed or enforced by a legal
       action.

Globe Life & Accident Ins. Co. v. Okla. Tax Comm’n, 913 P.2d 1322, 1326 (Okla.

1996); see also Am. Airlines, Inc. v. State, ex rel. Okla. Tax Comm’n, 341 P.3d 56, 65

(Okla. 2014) (referring to provision of Oklahoma Tax Code defining “tangible

personal property,” in relevant part as “personal property that can be seen, weighed,

measured, felt, or touched or that is any other manner perceptible to the senses”);

Blitz U.S.A., Inc. v. Okla. Tax Comm’n, 75 P.3d 883, 888–89 (Okla. 2003) (“An

inventor sells intangible intellectual property [ideas, skill, or patent rights] in return

                                             8
for which the inventor receives a royalty. A manufacturer, on the other hand, sells

tangible personal property.”); In re Sales Tax Protest of West, 979 P.2d 263, 264–65

(Okla. Civ. App. 1998) (holding that “it is inarguable” that contact sheets,

transparencies, and videos given by photographer to clients could be “seen, weighed,

measured, felt and touched” and therefore were tangible personal property).

       Accepting Mr. Dawson’s assertion that the student’s right to a public

education was damaged because she had to finish high school on the internet, rather

than in brick and mortar high school, we still agree with the district court that he

cannot prevail on his claim against State Farm. An education cannot be felt, it lacks

physical form, and one cannot take possession of the right to it. Accordingly, it is not

tangible property. And the fact that students typically obtain their public education in

a tangible physical setting, using tangible items such as textbooks, does not change

that conclusion. The right to a public education is intangible.

       Finally, we also reject Mr. Dawson’s argument that the student suffered “loss

of use” of tangible personal property. The Policy defines “property damage” as

“physical damage to or destruction of tangible property, including loss of use of this

property. . . .” The definition’s reference to “loss of use” is specifically tied to loss of

use of “this property,” which, in turn, refers to the damaged or destroyed tangible

property. Because there has been no loss to tangible property here, it follows that the

student cannot have suffered any “loss of use” resulting from the “damage or

destruction to that tangible property.”



                                             9
                                III.   CONCLUSION

      In summary, the plain language of the Policy excludes coverage for defense or

indemnification of the State Court Action. We therefore affirm the district court’s

order granting State Farm’s summary judgment motion.

                                           Entered for the Court


                                           Carolyn B. McHugh
                                           Circuit Judge




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