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25021 - State Farm Mutual Auto Ins. Co. v. Bookert

Shearouse Adv. Sh. No.
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

State Farm Mutual

Automobile Insurance

Company, Petitioner,

v.

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

. REVERSED

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.

p.40


STATE FARM MUT. AUTO. INS. CO. v. BOOKERT

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

injury; and

2. No act of independent significance breaks the causal link; and

3. The vehicle is being used for transportation at the time of the

assault.

p.41


STATE FARM MUT. AUTO. INS. CO. v. BOOKERT

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

REVERSED.

C.J.

A.J.

A.J.

A.J.

A.J.

p.42