THIRD DIVISION
February 28, 2001

The question in this case is whether the injuries sustained by BeatriceRosenberg (Rosenberg) during a carjacking were covered under the uninsuredmotorist provision of her automobile insurance policy, issued by State Farm Fireand Casualty Company (State Farm). The trial court found the policy did not coverRosenberg's injuries, and granted summary judgment in favor of State Farm. Rosenberg appeals, contending the trial court erred in finding the policy did notcover her injuries and in denying her motion for summary judgment. We affirm.

FACTS

State Farm issued an automobile insurance policy to Rosenberg in April 1996.

On December 9, 1996, Rosenberg got out of her 1995 Chevrolet Blazer and beganwalking through the parking lot of her workplace in Niles, Illinois. As she waswalking, Frank Tripp approached her, waved a gun, and demanded her purse and carkeys. After Rosenberg gave Tripp her purse and keys, he ordered her to get backinto the Blazer on the passenger's side of the front seat. Tripp got into thedriver's seat and drove the Blazer onto the Edens Expressway.

Once they were on the expressway, Tripp shot Rosenberg in the head and arm,opened the car door, and pushed her onto the expressway while the car was stillmoving. Rosenberg sustained injuries from the bullet wounds to her arm and head,as well as minor bruises and abrasions from being pushed out of the vehicle. Rosenberg filed a claim with State Farm under the uninsured motorist provision ofher insurance policy. On June 29, 1998, State Farm filed a complaint fordeclaratory judgment seeking a determination that the uninsured motorist provisiondid not cover the injuries Rosenberg sustained during the carjacking incident.

Both parties filed motions for summary judgment. The trial court found theuninsured motorist provision of Rosenberg's policy did not cover her injuriesbecause the injuries sustained by Rosenberg were not the kinds of injuries thatare normally associated with the ownership, use, or maintenance of a vehicle. Thecourt granted State Farm's motion for summary judgment and denied Rosenberg'smotion.

DECISION

Rulings on summary judgment motions are subject to de novo review. OutboardMarine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204(1992). Summary judgment is proper only if the pleadings, depositions,admissions, affidavits, and other relevant matters on file show there is nogenuine issue of material fact and that the movant is entitled to judgment as amatter of law. Smith v. Tri-R. Vending, 249 Ill. App. 3d 654, 657, 619 N.E.2d 172(1993). Where both parties have filed motions for summary judgment, they agreethat only a question of law is presented and invite the court to decide the issueson the record. Laycock v. American Family Mutual Insurance Co., 289 Ill. App. 3d264, 266, 682 N.E.2d 382 (1997).

Insurance polices are contracts, and should be construed as other contractsare construed. General Insurance Company of America v. McManus, 272 Ill. App. 3d510, 514, 650 N.E.2d 1080 (1995). If the provisions of a policy are clear andunambiguous, they must be given their plain and ordinary meaning. Laycock, 289Ill. App. 3d at 267.

The applicable provision of the automobile insurance policy issued to Rosenberg by State Farm says:

"UNINSURED MOTOR VEHICLE - COVERAGE U

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We will pay damages for bodily injury an insured is legally entitled to collectfrom the owner or driver of an uninsured motor vehicle. The bodily injury must besustained by an insured and caused by accident arising out of the operation,maintenance or use of an uninsured motor vehicle." (Emphasis in original.)

Because Tripp was not an insured driver under the policy, Rosenberg's car isconsidered an "uninsured motor vehicle" for purposes of this provision. Barnes v.Powell, 49 Ill. 2d 449, 454-55, 275 N.E.2d 377 (1971). State Farm agrees.

Neither party disputes that the injuries arose from an "accident." Instead,the dispute centers around whether the accident arose out of the "operation,maintenance or use of [the] uninsured motor vehicle." Rosenberg contends herinjuries were the direct and proximate result of the use of her car. She reasonsthe injuries would not have occurred but for Tripp's desire to steal the vehicle. Rosenberg also asks us to find that injuries sustained during a carjacking are atype of risk contemplated by the parties to an auto insurance policy.

Rosenberg relies on Dyer v. American Family Insurance Co., 159 Ill. App. 3d 766, 512 N.E.2d 1071 (1987). In Dyer,the plaintiff and her friend were sitting in the friend's car when a man opened the driver's door, brandished a knife, andordered them to move to the passenger's side of the car. The abductor drove out of the parking lot and headed towardWisconsin at a high rate of speed. Two police cars began chasing the vehicle. The abductor tried to elude them. Duringthe high speed chase, the passenger-side door of the car flew open. The plaintiff's legs were hanging out of the vehicle asthe abductor continued to drive. The plaintiff sustained injuries as a result of the wild manner in which the abductor drovewhile her legs were hanging out of the car.

At the time of the accident, the plaintiff was living with her father and qualified as an "insured" under the terms of hisautomobile insurance policy. The plaintiff made a claim under the uninsured motorist provision of her father's policy. Thatprovision said:

"We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsuredmotor vehicle because of bodily injury:

1. Sustained by a covered person; and

2. Caused by an accident." Dyer, 159 Ill. App. 3d at 769.

When her insurance company refused coverage, the plaintiff filed a declaratory judgment action against it. The trialcourt granted the plaintiff's motion for summary judgment, finding she was entitled to coverage under this provision of thepolicy. The defendant appealed, contending the plaintiff's injuries were not covered under the policy because they were theresult of the kidnapper's intentional acts, and were not "caused by an accident." The appellate court affirmed the trialcourt's decision, finding the injuries were "unforeseen, unintended, and unexpected from the plaintiff's point of view" andtherefore accidental. Dyer, 159 Ill. App. 3d at 773-74.

This case differs from Dyer in two respects: first, the policy language in this case is more restrictive. The language ofthe policy does not simply require an "accident," as it did in Dyer. It requires an "accident [that arose] out of the operation*** or use" of the car. Second, the injuries in Dyer were the direct result of the manner in which the uninsured motorvehicle was driven. A causal connection existed between the operation of the uninsured vehicle and the plaintiff's injuries.

Here, the injuries sustained by defendant were the result of gunshot wounds inflicted by Tripp before he pusheddefendant out of the vehicle. There was no direct connection between the injuries Rosenberg seeks compensation for andthe operation or use of her vehicle. The "accident" in this case did not arise out of the manner in which the uninsuredvehicle was being driven, as it did in Dyer.

In cases analyzing insurance policies with language similar to that found in Rosenberg's policy, coverage was deniedwhere the insured could not prove a causal connection existed between the use or operation of the vehicle and the insured'sinjuries. See Laycock, 289 Ill. App. 3d at 268; Aryainejad v. Economy Fire & Casualty Co., 278 Ill. App. 3d 1049, 663N.E.2d 1107 (1996); Country Companies v. Bourbon, 122 Ill. App. 3d 1061, 1065-66, 462 N.E.2d 526 (1984); Curtis v.Birch, 114 Ill. App. 3d 127, 131, 448 N.E.2d 591 (1983).

In Curtis, the appellate court was asked to determine whether an uninsured motorist provision in an automobileinsurance policy covered the shooting death of a passenger in one car caused by shots allegedly fired by a driver of asecond, uninsured car. The court said:

"Those few cases which have allowed an insured to recover, under an uninsured motorist's provision of an autoinsurance policy for intentional acts of the uninsured or unknown driver, involved injuries caused by the use of the auto asthe instrumentality of the resultant injuries.

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Here *** the instrumentality of the victim's injuries was a hand gun. *** The fact that the assailant was in a car at the timewas merely incidental." Curtis, 114 Ill. App. 3d at 131.

In Bourbon, the policy included language similar to that used in Rosenberg's policy, but the injuries unquestionablyresulted from an accident arising out of the use or operation of the uninsured vehicle. Bourbon, 122 Ill. App. 3d at 1065. There, the driver of the uninsured vehicle chased the insured, bumped his car, pulled ahead of the insured's vehicle, thenturned around and drove directly at him.

When the insured tried to avoid hitting the uninsured driver, he lost control of his car, flipped it three times, andsustained the injuries for which he sought compensation. The appellate court found the insured was entitled to coverageunder the uninsured motorist provision of his policy, but explicitly distinguished Curtis, noting that in Curtis the car wasnot the "instrumentality" of the insured's injuries. Bourbon, 122 Ill. App. 3d at 1065-66. Coverage was found because theinsured's injuries arose out of an accident caused by the manner in which the uninsured vehicle was being driven. Bourbon,122 Ill. App. 3d at 1065 (accident arose out of physical contact between vehicles).

In Aryainejad, the appellate court explicitly precluded coverage in cases involving injuries arising out of a physicalassault. Aryainejad, 278 Ill. App. 3d at 1054-55. In that case, the accident was caused when the insured swerved to avoidhitting the driver of the uninsured vehicle, who was walking in the middle of a traffic lane on the interstate after his car ranout of gas. The court noted that the injuries to the insured arose out of the use of the uninsured vehicle and found coverageunder the policy, but also said:

"We agree that an automobile must do more than merely transport a person to the site where the accident occurs forcoverage to apply and that an assault by the driver of a vehicle is an act which is independent and unrelated to theownership, maintenance or use of a vehicle. Regardless of whether a vehicle creates a condition that leads to an assault,injuries resulting from an assault are not a normal or reasonable consequence of the use of a vehicle. In other words,because physical altercations are not reasonably consistent with the inherent nature of the vehicle, they are not risks forwhich the parties to automobile insurance contracts would reasonably contemplate there would be coverage." Aryainejad,278 Ill. App. 3d at 1054-55.

The appellate court applied this reasoning in Laycock. In Laycock, plaintiff's son, Steven, was involved in a nearautomobile collision with another driver. The driver of the other car got out of his vehicle and beat Steven on the face,head, neck, and eyes through Steven's open window. Plaintiff sought compensation for his son's injuries under theuninsured motorist provision of his automobile insurance policy.

The appellate court affirmed the trial court's entry of summary judgment in favor of the insurance company, and said:

"While the words 'arising out of' have been interpreted broadly to mean originating from, incident to, or having a causalconnection with the use of the vehicle [cite], the act of leaving the vehicle and inflicting a battery is an event ofindependent significance that is too remote, incidental, or tenuous to support a causal connection with the use of the vehicledespite the fact that the vehicle was used to stop and trap another vehicle.

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*** [A]n assault by the driver of a vehicle is an act that is independent of and unrelated to the use of a vehicle and is nota normal or reasonable consequence of the use of a vehicle." Laycock, 289 Ill. App. 3d at 268-69.

The same analysis has been used in cases in which the insureds sought coverage under the liability provisions of theirauto insurance policies. See State Farm Insurance Company v. Pfiel, 304 Ill. App. 3d 831, 837, 710 N.E.2d 100(1999)(liability coverage denied where insured's son murdered 13-year old girl inside car because liability arose from"nonvehicular conduct"); U.S. Fidelity & Guaranty Co. v. Jiffy Cab Co., 265 Ill. App. 3d 533, 539, 637 N.E.2d 1167(1994)(use of cab too remote, incidental, or tenuous to support liability coverage where cab driver stabbed passenger duringaltercation).

Based on the cases discussed above, we find Rosenberg's injuries did not arise out of the operation or use of her car. Asin Curtis, the "instrumentality" of Rosenberg's injury was a hand gun, not the uninsured vehicle. Rosenberg's gunshotwounds occurred independently of the "operation" or "use" of the vehicle. Because Rosenberg's policy allows coverageonly for injuries that occurred during an accident that arose out of the operation or use of the vehicle, the plain language ofthe uninsured motorist provision in Rosenberg's auto insurance policy precludes coverage for the injuries sustained duringthe carjacking.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

CERDA, and BURKE, JJ., concur.