THE STATE OF SOUTH CAROLINA

In The Supreme Court

State Farm Fire &

Casualty Co., Plaintiff,

v.

Randy Aytes and Donna

Dawson, Defendants.

and

Donna Dawson, Third Party Plaintiff,

v.

State Farm Mutual

Automobile Insurance Co., Third Party Defendant.

On Certification from the United States District

Court for the District of South Carolina

Patrick Michael Duffy, United States District Judge

Opinion No. 24827

Heard January 8, 1998 - Filed July 27, 1998

CERTIFIED QUESTION ANSWERED

Timothy A. Domin, of Clawson & Staubes, of

Charleston, for Plaintiff State Farm Fire &

Casualty Company.

Edward Paul Gibson, of Riesen Law Offices, of

North Charleston, for Defendants Randy Aytes and

Donna Dawson.

Henry E. Grimball, of Buist, Moore, Smythe &

McGee, of Charleston, for Third Party Defendant

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State Farm Mutual Automobile Insurance

Company.

FINNEY, C.J.: This matter is before the Court on

certification from the United States District Court to answer the following

questions related to uninsured motorist coverage.

1. Pursuant to the Findings of Fact of the District Court, does

Randy Aytes' classification as a non-permissive user of the

Dawson vehicle invoke the Uninsured Motorist Coverage of

Donna Dawson's State Farm Mutual Auto policy so as to allow

Ms. Dawson to sue Aytes as an uninsured motorist?

2. Did Donna Dawson's injuries result from the ownership,

maintenance, or use of her vehicle?

3. Can the shooting be characterized as accidental?

FACTS

On July 22, 1994, Defendant/Third-Party Plaintiff, Donna

Dawson (Dawson) owned a vehicle insured by a policy issued by State

Farm Mutual Automobile Insurance Co. Prior to this time, Ms. Dawson

had forbidden defendant Randy Aytes (Aytes) to drive her car. Dawson

and Aytes were together at the home of his mother, Blanche Aytes.

Randy Aytes and Dawson became involved in an altercation. Aytes

forcibly took Dawson's car key and forced her into her car. Although

Aytes was forbidden to drive Dawson's car, he drove her to an area of

Blanche Aytes' property with the expressed intent of killing Dawson.

While standing outside of the car on the passenger side, Aytes fired a

pistol towards Dawson striking her in the foot.

Blanche Aytes' homeowner's insurer State Farm Fire &

Casualty Co. instituted a declaratory judgment action against Randy Aytes

and Dawson to determine the coverage available under the homeowner's

policy. Dawson brought a third-party action against State Farm Mutual

Automobile Insurance Co. to bring into the case the question of coverage

under her automobile policy. The parties stipulated that there was no

coverage under the homeowner's policy. The sole question remaining

before the federal court on cross-motions for summary judgment concerns

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the coverage in effect on July 22, 1994, under the State Farm Mutual

Automobile policy insuring Dawson's vehicle.

An insured is legally entitled to recover damages arising out of

the "ownership, maintenance, or use" of an uninsured vehicle. S. C. Code

Ann. § 38-77-140 (1989). The two-pronged test for determining when an

injury arises out of the ownership, maintenance, or use of an uninsured

vehicle is set out in Wausau Underwriters Ins. Co. v. Howser, 309 S.C.

269, 422 S.E.2d 106 (1992). First, the party seeking coverage must

establish a causal connection between the vehicle and the injury. Second,

there must exist no act of independent significance breaking the causal

link. A third requirement was added in Canal Ins. Co. v. Insurance Co. of

North America, 315 S.C. 1, 431 S.E.2d 577 (1993): it must be shown the

vehicle was being used for transportation at the time of the assault.

The causal connection is established where it can be shown the

vehicle was an "active accessory" to the assault. Howser, supra. The

causation required is something less than proximate cause and something

more than the vehicle being the mere site of the injury. Id. The injury

must be foreseeably identifiable with the normal use of the vehicle.

Nationwide Mut. Ins. Co. v. Brown, 779 F.2d 984 (4th Cir. 1985). The

required causal connection does not exist when the only connection

between an injury and the insured vehicle's use is the fact that the

injured person was an occupant of the vehicle when the shooting occurred.

Id.

In this case, the vehicle was used to transport Dawson to

another location. The assailant driver got out of the car and went around

to the passenger side where Dawson was sitting. Dawson retrieved a gun

from the glove compartment in an effort to defend herself from Aytes.

However, Aytes gained control of the gun and while he was standing

outside of the car, he fired the gun striking Dawson in the foot. State

Farm contends the stationery car was merely the site of the injury and

not an "active accessory" to the assault. Dawson contends her car acted as

more than the mere site of the injury.

In Wausau Underwriters v. Howser, the insured sustained

gunshot wounds while traveling on a public highway in an insured vehicle

and during a vehicular chase by an unknown assailant in an unidentified

vehicle. The Court found the unknown vehicle was an active accessory to

this assault: it was not a case in which the assailant merely used the

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vehicle to provide transportation to the situs of the shooting. The Court

stated:

Only through use of his vehicle was the assailant

able to closely pursue Howser, thereby enabling

him to carry out the pistol assault. The gunshot

was the culmination of an ongoing assault, in

which the vehicle played an essential and integral

part. Additionally, only a motor vehicle could have

provided the assailant a quick and successful

escape. Thus, we find a sufficient causal

connection exists between the use of the assailant's

vehicle and Howser's injuries.

Wausau Underwriters, supra. Coverage was not found in Nationwide Mut.

Ins. Co. v. Brown, supra, where fatal shooting occurred when husband, a

passenger in a truck, caused the truck driver to collide with his wife's

vehicle and husband jumped out of truck and shot his wife in her vehicle.

The court concluded that the use of the truck for transportation to the

scene of the shooting was merely incidental, remote from the type of

conduct that is reasonably foreseeable with the normal use of a vehicle

and not the causative factor in producing wife's death. Instead, the

assault in Brown was viewed by the court as an act wholly independent of

the use of the truck and the cause of the death. The incidental use of the

truck in the shooting was not found to meet the causal relation test of

coverage.

In Home Ins. Co. v. Towe, 314 S.C. 105, 441 S.E.2d 825 (1994),

injuries were sustained by a victim when he was struck by a bottle thrown

by a passenger in a passing car. The Court stated that "the use of the

automobile placed [assailant] in the position to throw the bottle at the sign

and the vehicle's speed contributed to the velocity of the bottle increasing

the seriousness of [victim's] injuries. As in Wausau, the automobile was

an active accessory that gave rise to the injuries." The court in Home Ins.

Co. found that a causal connection existed between the use of Towe's

automobile and the victim's injuries. The court stated further "[t]he use of

the automobile and [assailant's] throwing of the bottle were . . .

'inextricably linked' as one continuing act. Accordingly, there was no act

of independent significance that broke the causal connection between the

use of the automobile and [victim's] injuries." Home Ins. Co., 314 S.C. at

108, 441 S.E.2d at 827.

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There was not a causal connection in this case as the vehicle

was not an active accessory, nor was it being used for transportation at

the time of the injury. Further, if there was a causal link, it was broken

when the assailant exited the vehicle. The only connection between the

car and the injury is the fact that Dawson was sitting in the car when she

was shot. Therefore, we do not find Dawson's injuries resulted from the

ownership, maintenance, or use of her vehicle.

We do not answer questions one and three since our answer to

question two is dispositive under these facts and precludes Dawson from

recovering damages arising out of the "ownership, maintenance, or use" of

an uninsured vehicle regardless of the answers to questions one and three.

CERTIFIED QUESTION ANSWERED.

TOAL, MOORE, WALLER and BURNETT, JJ., concur.

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