THE STATE OF SOUTH CAROLINA
In The Supreme Court
State Farm Mutual
Mary Ann Bookert and
Michael Bookert, Respondents.
ON WRIT OF CERTIORARI TO THE
COURT OF APPEALS
Appeal From Richland County
L. Henry McKellar, Circuit Court Judge
Opinion No. 25021
Heard June 8, 1999 - Filed November 22, 1999
John U. Bell, C. Mitchell Brown and William C.
Wood, Jr., all of Nelson, Mullins, Riley &
Scarborough, L.L.P., of Columbia, for petitioner.
H. Patterson McWhirter, Stacey H. Tarte and
Stephen B. Samuels, all of McWhirter, Bellinger &
Associates, of Columbia, for respondents.
PER CURIAM: We granted certiorari to review the Court of
Appeals' decision in State Farm Mutual Ins. Co. v. Bookert, 330 S.C. 221,
499 S.E.2d 480 (Ct.App. 1997). We reverse.
State Farm brought this declaratory judgment action to determine the
extent of coverage it owed under the underinsured motorist provision of an
automobile policy issued to respondent Mary Bookert (Mary). The parties
stipulated to these facts: Mary's son, respondent Michael Bookert, is an
insured under Mary's policy. Michael and some friends stopped at a
Hardee's, where two soldiers and about fifteen other young men became
involved in an altercation. Michael and his friends left and went to a
McDonald's, as did some of the fifteen men from Hardee's. The two soldiers,
who were armed, picked up a third soldier and drove to the McDonald's
where they circled the parking lot, looking for the Hardee's men. As Michael
was about to go in the restaurant, he heard the soldiers yelling, and turned
in their direction. The soldiers' vehicle was stopped in the traffic lane with
its motor running, one soldier in the back holding a shotgun while the front
passenger brandished a handgun. The vehicle jerked forward, the soldier
wielding the shotgun fell, and fired his gun. Michael was not hit by the
shotgun pellets, but while the vehicle was still moving forward, the
passenger fired the handgun striking Michael with a bullet in each leg.
The circuit court granted Michael and Mary summary judgment, and
the Court of Appeals affirmed.
After the Court of Appeals handed down its opinion, we decided State
Farm Fire & Casualty Co. v. Aytes, 332 S.C. 30, 503 S.E.2d 744 (1998). In
Aytes, we restated the three part test for determining whether an
individual's personal injuries arise out of the "ownership, maintenance, or
use" of an automobile such that they are covered by an automobile insurance
policy. The three part test is met when:
1. There exists a causal connection between the vehicle and the
2. No act of independent significance breaks the causal link; and
3. The vehicle is being used for transportation at the time of the
Aytes reiterated the components of the causal connection requirement. In
this context, causal connection means:
a. the vehicle was an "active accessory" to the assault; and
b. something less than proximate cause but more than mere site
of the injury; and
c. that the "injury must be foreseeably identifiable with the
normal use of the automobile."
We find Mary's policy does not cover Michael's injuries because they
are not "foreseeably identifiable with the normal use of an automobile."
State Farm Fire & Casually Co. v. Aytes, supra. Accordingly, the decision of
the Court of Appeals is