THE STATE OF SOUTH CAROLINA
In The Supreme Court
State Farm Fire &
Casualty Co., Plaintiff,
Randy Aytes and Donna
Donna Dawson, Third Party Plaintiff,
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 &
Edward Paul Gibson, of Riesen Law Offices, of
North Charleston, for Defendants Randy Aytes and
Henry E. Grimball, of Buist, Moore, Smythe &
McGee, of Charleston, for Third Party Defendant
State Farm Mutual Automobile Insurance
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?
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
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.
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
vehicle to provide transportation to the situs of the shooting. The Court
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
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.
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.