                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-1097
                         ___________________________

                        Country Mutual Insurance Company

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

Eric J. Orloske; Destiny A. Denton, as trustee for the heirs and next of kin of Brian
                                    S. Orloske

                      lllllllllllllllllllll Defendants - Appellants
                                       ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                           Submitted: November 18, 2015
                               Filed: April 11, 2016
                                  ____________

Before SMITH, BYE, and BENTON, Circuit Judges.
                           ____________

SMITH, Circuit Judge.

       Eric Orloske shot his brother, Brian, to death after Eric tripped and fell down
the stairs in his home while holding a loaded shotgun. Destiny A. Denton, the trustee
for Brian's next of kin, sued Eric for the wrongful death of Brian. Country Mutual
Insurance Company ("Country Mutual") filed this declaratory judgment action against
Eric and Denton (collectively, "Trustee") in the district court1 to establish that its
homeowner's policy, which covered Eric's home, did not provide coverage for Brian's
death. The district court granted summary judgment to Country Mutual. The court
concluded that there was no coverage because Eric had pleaded guilty to
manslaughter for Brian's death and the insurance policy excluded coverage for
criminal acts. The Trustee appeals, arguing that Minnesota's reasonable-expectations
doctrine should invalidate the criminal-acts provision in the policy. We affirm.

                                     I. Background
       We review the facts in the light most favorable to the Trustee as the nonmoving
party. Reed v. City of St. Charles, Mo., 561 F.3d 788, 790 (8th Cir. 2009). On the
night of the shooting, Eric and Brian spent the evening together in Eric's home
drinking heavily. Due to intoxication, Brian's behavior became increasingly rowdy
and unreasonable. Eric's efforts to get Brian to calm down or leave failed. Eric made
the unfortunate decision to retrieve his shotgun from the upstairs bedroom and
brandish it to scare Brian into compliance. Eric did not know that the gun was loaded.
As Eric proceeded down the stairs with the gun, he tripped and the gun discharged,
killing Brian.

      Eric pleaded guilty to second degree manslaughter for Brian's death. Denton
sought wrongful-death damages in a tort action against Eric on behalf of Brian's next
of kin, and she obtained an arbitration award against Eric. Protectively, Country
Mutual filed this declaratory judgment action to establish that its policy provided no
coverage for Eric's liability in the death of his brother. Country Mutual denied
coverage on the basis of the criminal-acts exclusion in Eric's policy. That exclusion
provides the following:



      1
      The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota.

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      9. Criminal Acts
         "Bodily injury" or "property damage" arising from any criminal
         act. Criminal act means any act or omission which is criminal in
         nature or for which a penal statute or ordinance permits or
         requires any term of imprisonment or sentence of public service
         duties. This exclusion applies regardless of whether any "insured"
         is actually charged with or convicted of a crime and regardless of
         whether any "insured" subjectively intended the "bodily injury"
         or "property damage" for which a claim is made[.]

      Country Mutual moved for summary judgment. In response, the Trustee argued
that Minnesota's reasonable-expectations doctrine should apply and render the
criminal-acts exclusion unenforceable on the instant facts. The district court
concluded that the reasonable-expectations doctrine did not apply in this case
"because the criminal-acts exclusion is neither ambiguous nor obscure." Accordingly,
the court granted summary judgment to Country Mutual. The Trustee appeals. We
have jurisdiction to review this final judgment of the district court pursuant to
28 U.S.C. § 1291.

                                   II. Discussion
      The Trustee argues that the district court erred in concluding that Minnesota's
reasonable-expectations doctrine is limited to preventing enforcement of ambiguous
or obscure provisions. We review de novo the district court's interpretation of state
insurance law and grant of summary judgment. Pioneer Indus., Inc. v. Hartford Fire
Ins. Co., 639 F.3d 461, 465 (8th Cir. 2011).

      In Carlson v. Allstate Insurance Co., 749 N.W.2d 41 (Minn. 2008), the
Minnesota Supreme Court provided guidance for the operation of Minnesota's
reasonable-expectations doctrine.2 In Carlson, the court reviewed three decades of

      2
      The Trustee asks us to apply Tower Insurance Co. v. Judge, 840 F. Supp. 679
(D. Minn. 1993), which has factual similarities to the instant case. As a federal district

                                           -3-
Minnesota caselaw applying the reasonable-expectations doctrine. See id. at 47–49.
The court began with its opinion in Atwater Creamery Co. v. Western National
Mutual Insurance Co., 366 N.W.2d 271 (Minn. 1985). Id. at 47. In that case, the court
"did not permit the insurer to enforce a definition that excluded coverage," id.,
reasoning that "'no one purchasing something called burglary insurance would expect
coverage to exclude skilled burglaries that leave no visible marks of forcible entry or
exit.'" Id. (quoting Atwater, 366 N.W.2d at 276). In concluding its discussion of
Atwater, the court summarized the reasonable-expectations doctrine as "imposing
burdens on both insurer and insured: the insurer must communicate coverage and
exclusions accurately and clearly, and the insured's expectations must be reasonable
under the circumstances." Id. at 48 (citing Atwater, 366 N.W.2d at 278). Next, the
court reviewed its opinion in Board of Regents of the University of Minnesota v.
Royal Insurance Co. of America, 517 N.W.2d 888 (Minn. 1994), noting that it "limits
Atwater, if not to its specific facts, at least to circumstances where the exclusion from
coverage was unreasonably hidden." Id. at 49 (citations omitted). Finally, the court
recognized that the reasonable-expectations doctrine "has generated criticism and
confusion that give us pause," citing two commentators expressing concern "that the
doctrine enables courts to vitiate the unambiguous terms of a policy simply to achieve
desirable outcomes." Id. (citing John M. Bjorkman, The Reasonable Expectations
Doctrine: An Overview, A.B.A. Brief, Summer 2000, at 38, 39; James M. Fischer,
The Doctrine of Reasonable Expectations Is Indispensable, If We Only Knew What
For?, 5 Conn. Ins. L.J. 151, 165 (1998)). "Against this backdrop," the court was

      unwilling to expand the doctrine of reasonable expectations beyond its
      current use as a tool for resolving ambiguity and for correcting extreme
      situations like that in Atwater, where a party's coverage is significantly
      different from what the party reasonably believes it has paid for and


court decision applying state law, Tower is not controlling, nor do we find it
particularly persuasive in light of subsequent Minnesota Supreme Court precedent
explaining the reasonable-expectations doctrine.

                                          -4-
      where the only notice the party has of that difference is in an obscure
      and unexpected provision.

Id.

      We considered Carlson and Minnesota's reasonable-expectations doctrine in
Babinski v. American Family Insurance Group, 569 F.3d 349 (8th Cir. 2009). In
Babinski, we noted that "Minnesota's doctrine of reasonable expectations is extremely
narrow and applies only on the few egregious occasions when an exclusion is
disguised in a policy's definitions section." Id. at 353 (quotation and citation omitted).
We declined to apply the doctrine in that case "[b]ecause the Policy is not ambiguous
and does not contain a hidden exclusion." Id. (citation omitted).

       The Trustee acknowledges that the exclusion at issue in this case is not hidden
in the definition or other unexpected section. Nonetheless, the Trustee argues that the
Minnesota Supreme Court used the phrase "obscure and unexpected" to encompass
something broader than a misplaced provision. The Trustee advances an
interpretation that focuses on whether the subject provision is commonly used and
well understood by the general public. The Trustee further reasons that because
"[t]here is nothing in the coverage provisions of the policy which would alert an
insured that his negligence may not be covered because of a criminal acts provision,"
"[t]he typical insured would be surprised to find out [his] negligent acts are not
covered." Finally, the Trustee connects the reasonable-expectations doctrine and the
doctrine of adhesion, concluding that the unequal bargaining power of the parties
"makes the exclusion even more obscure and unexpected and beyond [Eric's]
reasonable expectations."

      The Trustee's arguments misapprehend the narrow focus of Minnesota's
reasonable-expectations doctrine. The doctrine forces insurers to communicate the
coverage and exclusions of their policies clearly; it is not a means of avoiding

                                           -5-
unambiguous policy language. The Minnesota Supreme Court's opinion in Carlson
and our opinion in Babinski make clear that an "obscure and unexpected provision"
is one whose significance is obscured by means of an unexpected placement within
the policy or through the use of terminology intended to conceal its presence. A prime
example is an exclusion in the definitions section, or some similar, unexpected
concealment of a provision's true import within the policy. See Carlson, 749 N.W.2d
at 47. Thus, an obscure and unexpected policy provision will probably only be
discovered through "painstaking study of the policy provisions." Id. at 48 (quotations
and citations omitted). It is not sufficient that the provision is one that is simply
uncommon or unknown by the general public.

        In this case, the policy expressly listed the criminal-acts exclusion in the
exclusion section of the policy between exclusions related to controlled substances
and pollution. The exclusion is independently numbered, is emphasized with a bold
title, and is plainly stated. Even a cursory review of the policy would have revealed
that the policy does not cover "'[b]odily injury' or 'property damage' arising from any
criminal act." Although the same conduct can, in some circumstances, be both a civil
tort and a crime, conduct that would constitute a criminal act is readily ascertainable
by resort to statutory law and should not surprise most insureds.

      In sum, the district court correctly concluded that Minnesota's
reasonable-expectations doctrine is inapplicable in this case and correctly granted
summary judgment to Country Mutual.

                                 III. Conclusion
      Accordingly, we affirm the final judgment of the district court.
                     ______________________________




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