No. 2--01--0608	

________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

________________________________________________________________

MARTHA RAMIREZ, Indiv. and as	)	Appeal from the Circuit Court

Parent, Next Friend, and	)	of Winnebago County.

Guardian of the Estate of       )

Gamaliel Ramirez, a Minor,      )

Deceased,                       )

                                )

	Plaintiff-Appellee,	)

	)	

v.	)	No. 99--MR--–--48

	)

STATE FARM MUTUAL AUTOMOBILE	)	

INSURANCE COMPANY,              )  Honorable

	)	Ronald L. Pirrello,

	Defendant-Appellant.	)	Judge, Presiding.

________________________________________________________________

	JUSTICE GROMETER delivered the opinion of the court:

	Defendant, State Farm Mutual Automobile Insurance Company

(State Farm), appeals from a summary judgment granted by the trial

court in favor of plaintiff, Martha Ramirez, in this declaratory

judgment action.  Plaintiff brought the action individually and as

parent, next friend, and guardian of the estate of her deceased

minor son, Gamaliel Ramirez (Gamaliel), seeking a declaratory

judgment that the uninsured motorist provisions in an automobile

insurance policy that State Farm had issued to her covered the

damages related to Gamaliel's injuries and death.  Gamaliel's death

resulted from gunshots fired from an uninsured vehicle at

plaintiff's car while GamilielGamaliel was driving plaintiff's car.  For

the reasons that follow, we conclude that the uninsured motorist provisions of plaintiff's policy did not provide coverage and

reverse the summary judgment.

	The material facts are not in dispute.  Around midnight on

November 1, 1997, Gamaliel was driving plaintiff's car in Rockford. 

Antonio Ramirez, the only passenger in the car, was sitting in the

front passenger seat.  Another car, driven by Jasim Mohamed

Albaiaty, began to follow plaintiff's car.  There were two

passengers in Albaiaty's car, Ricardo "Ricky" Diaz and Rey Velarde. 

Gamaliel attempted to get away from Albaiaty's car.  However,

Albaiaty's car continued to follow plaintiff's car for about 40

blocks.

	When Gamaliel slowed plaintiff's car for a railroad crossing,

Albaiaty's car pulled next to the driver's side of plaintiff's car. 

Velarde, one of the passengers in Albaiaty's car, then fired about

10 or 11 gunshots at plaintiff's car.  One of the gunshots hit

Gamaliel in the left arm and passed into his chest.  After Velarde

fired the shots, Albaiaty's car briefly came into contact with

plaintiff's car.  Albaiaty's car then sped away.

	Shortly after being shot, Gamaliel passed out and was unable

to maintain control of plaintiff's car.  Plaintiff's car then left

the road, struck some property near a building, and eventually hit

a light pole.

	Gamaliel was taken to a hospital where he received emergency

treatment.  Gamaliel died at the hospital.  The cause of Gamaliel's

death was the gunshot wound to the chest.

	Albaiaty and Velarde were charged with the murder of Gamaliel. 

Albaiaty and Velarde each pleaded guilty to the offense.  Diaz

pleaded guilty to related minor offenses.

	Plaintiff filed a claim with State Farm for the damages

resulting from Gamaliel's injuries	and death.  Plaintiff sought coverage under the uninsured motorist provisions in an automobile

insurance policy that State Farm had issued to plaintiff.  The

policy was in force on November 1, 1997.

	State Farm subsequently determined that plaintiff was not

entitled to coverage for the claimed damages under the uninsured

motorist provisions in the policy and denied plaintiff's claim. 

State Farm also declined plaintiff's request to proceed to

arbitration on the matter.

	The uninsured motorist provisions in the policy stated, in

pertinent part:

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

	Following State Farm's denial of her claim, plaintiff filed

this action seeking a declaratory judgment that she was entitled to

coverage for the claimed damages under the uninsured motorist

provisions of the policy.  The parties filed cross-motions for

summary judgment.  The trial court determined that the incident in

question was an "accident" and that the incident "arose out of" the use and operation of Albaiaty's uninsured vehicle.  Based on these

determinations, the trial court ruled that the uninsured motorist

provisions in the policy provided coverage for plaintiff's claimed

damages and granted plaintiff's motion for summary judgment.  State

Farm's timely notice of appeal followed.

	On appeal, State Farm contends that the trial court erred in

granting summary judgment in favor of plaintiff.  State Farm

acknowledges that, under the terms of the policy, Gamaliel was an

insured driver and Albaiaty was an uninsured motorist.  State Farm 

argued in its initial appellate brief that the trial court erred in

determining that Gamaliel's death was caused by an "accident" and

in determining that the accident "arose out of" the operation and

use of Albaiaty's uninsured vehicle for purposes of the uninsured

motorist provisions in the policy.  However, in its reply brief,

State Farm acknowledged that the parties agree that Gamaliel's

injuries arose by "accident."  Thus, we express no opinion

whatsoever as to whether Gamaliel’s death was the result of an accident.  Therefore, the only issue before us is whether the trial court erred in determining that the accident "arose out of" the

operation and use of Albaiaty's vehicle.

	Familiar principles guide us in reviewing a grant of summary

judgment.  Summary judgment is appropriate where "the pleadings,

depositions, and admissions on file, together with the affidavits,

if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of

law."  735 ILCS 5/2--–1005(c) (West 2000).  Summary judgment is a drastic measure and therefore a court should grant summary judgment only when the movant's right to judgment is clear and free from

doubt.  Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992).   We review de novo the propriety of an order granting a motion for summary judgment.  Travelers Insurance Co. v. Eljer Manufacturing, Inc., 197 Ill. 2d 278, 292 (2001).

	In construing an insurance policy, the primary objective is to

ascertain and give effect to the intent of the parties to the

contract.  Outboard Marine Corp., 154 Ill. 2d at 108.  Courts should construe an insurance policy as a whole and take into

account the type of insurance purchased, the nature of the risks

involved, and the overall purpose of the contract.  Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 391 (1993).  If the words of a policy are clear and unambiguous, a

court must afford them their plain, ordinary, and popular meaning. Outboard Marine Corp., 154 Ill. 2d at 108.  Conversely, if the language in a policy is susceptible to more than one meaning, it is

considered ambiguous and a court should construe it strictly

against the insurer that drafted the policy and in favor of the

insured.  American States Insurance Co. v. Koloms, 177 Ill. 2d 473, 479 (1997).  Courts should not strain to find ambiguity in an

insurance policy where none exists.  Crum & Forster Managers Corp., 156 Ill. 2d at 391.

	In support of its position that the trial court erred in

determining that the accident arose out of the operation and use of

Albaiaty's vehicle, State Farm relies on a line of Illinois cases

that involved uninsured motorist provisions in automobile insurance

policies similar to the uninsured motorist provisions in the policy in this case.  The cases relied on by State Farm also involved

circumstances that were more or less similar to the circumstances

in this case.

	One of the cases relied on by State Farm is Curtis v. Birch, 114 Ill. App. 3d 127 (1983).  In Curtis, the issue was whether the trial court erred in dismissing the count of a multicount complaint

alleging that the uninsured motorist provisions in an automobile

insurance policy provided coverage for certain damages.  The

damages allegedly resulted from the shooting death of a passenger

in an insured car which was apparently parked at the time of the

shooting.  The driver of an uninsured vehicle allegedly fired the

shots that killed the victim.

	In Curtis, the appellate court affirmed the dismissal of the count in question after noting that the purpose of uninsured

motorist coverage is to place the policyholder in substantially the

same position he would have occupied if the wrongful driver had the

minimum liability insurance required by Illinois law.  Curtis, 114 Ill. App. 3d at 130-31.  The court stated that it had not found,

and was otherwise unaware of, anything that indicated "that the

legislature anticipated or intended that the liability of an

insurer could be established by the intentional, criminal conduct,

such as that involved here."  Curtis, 114 Ill. App. 3d at 131.  The court also stated that the "few cases which have allowed an insured

to recover, under an uninsured motorist's provision of an auto

insurance policy for intentional acts of the uninsured or unknown

driver, involved injuries caused by the use of the auto as the instrumentality of the resultant injuries."  Curtis, 114 Ill. App 3d at 131.

	Another case that State Farm relies on is Aryainejad v. Economy Fire & Casualty Co., 278 Ill. App. 3d 1049 (1996). In Aryainejad, an uninsured motorist, Duffy, had been drinking and ran out of gas on Interstate 57.  Duffy left his vehicle and began

walking to a gas station.  The plaintiff, Aryainejad, was driving

his insured vehicle on I-57 when he encountered Duffy walking

toward him in the middle of a traffic lane.  In attempting to avoid

hitting Duffy, Aryainejad lost control of his vehicle, crashed, and

sustained serious injuries.  Aryainejad later filed a claim for

uninsured motorist coverage under his automobile insurance policy

with the defendant insurance company.  The parties filed cross-

motions for summary judgment agreeing that the sole issue was

whether Aryainejad's accident arose out of Duffy's ownership,

maintenance, or use of his vehicle.  The trial court ruled in favor

of the defendant and Aryainejad appealed.  Aryainejad, 278 Ill. App. 3d at 1050.

	In Aryainejad, the appellate court noted that many courts throughout the country had examined "arising out of" language in

automobile insurance policies and had construed the terms broadly

to mean "originating from, incident to, or having a causal

connection with the ownership, maintenance or use of the vehicle." 

Aryainejad, 278 Ill. App. 3d at 1051.  The appellate court stated that a majority of the courts that had construed "arising out of"

language held that "there must be a causal relationship between the

injury and the ownership, maintenance or use of the vehicle for coverage to apply."  Aryainejad, 278 Ill. App. 3d at 1052.  The appellate court also concluded that no uniform causation standard

or test for resolving the causation question had been adopted. 

Aryainejad, 278 Ill. App. 3d at 1052.

	In Aryainejad, the appellate court evaluated various tests used by courts that focus solely on causation.  These tests include

the "substantial nexus" test and the "efficient and predominating

cause" test.  The appellate court decided that such tests did not

provide an adequate analytical framework for resolving the

frequently litigated issue of construing "arising out of" language. 

Aryainejad, 278 Ill. App. 3d at 1054.  The appellate court then stated:

	"The better approach is to eschew such tests and follow the

courts that afford coverage where the injuries resulted from

an activity that is within the risk reasonably contemplated by

the parties.  We therefore adopt this approach  *** ." 

Aryainejad, 278 Ill. App. 3d at 1054.

	In applying this "reasonable contemplation" test, the

Aryainejad court held that the injuries Aryainejad sustained as a result of Duffy's conduct were covered by the uninsured motorist

provisions in Aryainejad's policy.  The court determined that

Duffy's conduct in running out of gas and then walking on the

interstate to get more gas was within the risks contemplated by the

parties to the policy because the conduct was incident to Duffy's

usage of his vehicle.  In distinguishing cases relied on by the

insurance company, the appellate court stated:

		"We agree that an automobile must do more than merely

transport a person to the site where an accident occurs for

coverage to apply and that an assault by the driver of a

vehicle is an act which is independent and unrelated to the

ownership, 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 for which the parties to automobile insurance

contracts would reasonably contemplate there would be

coverage.  On the other hand, walking down the highway after

a vehicle breaks down or runs out of gas is a reasonable

consequence of the use of a vehicle."  Aryainejad, 278 Ill. App. 3d at 1054-55.

	Another case that State Farm relies on is Laycock v. American Family Mutual Insurance Co., 289 Ill. App. 3d 264 (1997).  In Laycock, an uninsured vehicle chased, cut off, and forced to a stop a car insured by the defendant insurance company and driven by

Steven Laycock, an insured, after the two vehicles had nearly

collided.  Jungles, the driver of the uninsured vehicle, then

exited his vehicle, and while shouting threats and obscenities at

Steven, beat Steven on the face, head, neck, and eyes through

Steven's open window causing injuries to Steven.  After Jungles was

convicted of battery, plaintiffs obtained a civil judgment against

Jungles in the amount of $15,000, but the insurance company refused to pay the damages under plaintiffs' uninsured motorist claim and

refused to arbitrate.  Plaintiffs then filed a declaratory judgment

action against the insurance company.

	In the declaratory judgment action in Laycock, the parties filed cross-motions for summary judgment on the issue of whether

the incident in which Steven was injured arose out of the use of

Jungles' uninsured motor vehicle and therefore was covered by the

uninsured motorist provisions of plaintiffs' policy.  The trial

court determined that the uninsured motorist provisions did not

apply to the incident and ruled in favor of the insurance company. 

Plaintiffs then appealed.

	On appeal in Laycock, this court recognized that the words "arising out of" in an automobile insurance policy have been

broadly construed to mean, inter alia, having a causal connection with the use of a vehicle.  Nonetheless, this court determined that

the uninsured motorist provisions in the policy did not provide

coverage for plaintiffs because "the act of leaving the vehicle and

inflicting a battery is an event of independent significance that

is too remote, incidental, or tenuous to support a causal

connection with the use of the vehicle despite the fact that the

vehicle was used to stop and trap another vehicle."  Laycock, 289 Ill. App. 3d at 268.

	In Laycock, this court also applied the reasonable contemplation test that the appellate court adopted in Aryainejad.  Under the reasonable contemplation test this court concluded that

the injuries to Steven were not among the risks that the parties to

the policy reasonably contemplated would be covered.  This court held that the trial court correctly concluded that the policy did

not provide coverage and explained its holding by referring to

Aryainejad and stating:

	"We agree that an assault by the driver of a vehicle is an act

that is independent of and unrelated to the use of a vehicle

and is not a normal or reasonable consequence of the use of a

vehicle.  Therefore, it is not a risk for which the parties to

the contract reasonably contemplated there would be coverage." 

Laycock, 289 Ill. App. 3d at 269.

	Another case that State Farm relies on is State Farm Fire & Casualty Co. v. Rosenberg, 319 Ill. App. 3d 744 (2001).  In Rosenberg, Rosenberg, the owner of an insured vehicle, encountered  a man, Tripp, in a parking lot.  Tripp commandeered Rosenberg's

vehicle and drove off in the vehicle with Rosenberg in the

passenger seat.  On the Edens Expressway, Tripp shot Rosenberg in

the head and arm and then pushed her out of the vehicle while it

was moving.  Rosenberg subsequently filed a claim with her insurer

under the uninsured motorist provisions of her automobile insurance

policy (the vehicle was considered an uninsured vehicle while Tripp

was driving it because Tripp was not an insured driver).  In a

declaratory judgment action brought by the insurance company, the

parties filed cross-motions for summary judgment.  The trial court

found that the uninsured motorist provisions of the policy did not

provide coverage for Rosenberg's injuries because the injuries were

not injuries normally associated with the ownership, maintenance,

or use of a vehicle and granted summary judgment in favor of the

insurance company.  Rosenberg then appealed.

	On appeal in Rosenberg, the appellate court construed language in the uninsured motorist section of Rosenberg's policy that

stated, in pertinent part, that the coverage applied to an accident

" 'arising out of the operation, maintenance or use of an uninsured

motor vehicle.' "  (Emphasis omitted.)  Rosenberg, 319 Ill. App. 3d at 747.  The appellate court discussed various cases including

Curtis, Aryainejad, and Laycock and affirmed the trial court's grant of summary judgment in favor of the insurance company.  The

appellate court stated:

		"[T]he injuries sustained by defendant were the result of

gunshot wounds inflicted by Tripp before he pushed defendant

out of the vehicle.  There was no direct connection between

the injuries Rosenberg seeks compensation for and the

operation or use of her vehicle.  The 'accident' in this case

did not arise out of the manner in which the uninsured vehicle

was being driven *** ."  Rosenberg, 319 Ill. App. 3d at 748.

	Here, plaintiff first responds to the cases cited by State

Farm by citing two Illinois cases, Dyer v. American Family Insurance Co., 159 Ill. App. 3d 766 (1987), and Country Cos. v. Bourbon, 122 Ill. App. 3d 1061 (1984).  Plaintiff maintains that these cases show that Illinois courts have construed provisions in

uninsured motorist policies to provide coverage for injuries

resulting from intentional criminal acts.

	Neither Dyer nor Bourbon construed "arising out of" language. The policy at issue in Dyer did not even contain "arising out of" language among its uninsured motorist provisions.  Rather, the

policy allowed uninsured motorist coverage merely for injuries that were caused by an "accident."   Dyer, 159 Ill. App. 3d at 769.  The policy in Bourbon contained "arising out of" language among its uninsured motorist provisions, but the Bourbon court did not construe this language.  Rather, the court focused on whether the

incident in that case should be considered an "accident."  Bourbon, 122 Ill. App. 3d at 1066-67.  Because neither Dyer nor Bourbon construed "arising out of" language, the issue that is before us in

this case, plaintiff's reliance on Dyer and Bourbon, is misplaced.

	Plaintiff also cites a number of foreign cases.  However,

these cases either did not construe "arising out of" language or

are unpersuasive.  Accordingly, we choose not to follow any of the

foreign cases cited by plaintiff.

	Based on Curtis, Aryainejad, Laycock, and Rosenberg, we believe that the appropriate analysis for construing "arising out

of" language in the context of uninsured motorist provisions of an

automobile insurance policy is the reasonable contemplation test. 

We will therefore apply the reasonable contemplation test in this

case.

	The cause of Gamaliel's injuries and death was a gunshot that

was fired from another vehicle.  The shot hit Gamaliel while he was

driving plaintiff's vehicle.  It is true that the other vehicle was

an uninsured vehicle.  However, the instrumentality of Gamaliel's

injuries and death was the gun that the passenger in the uninsured

vehicle fired at Gamaliel.  The operation or use of the uninsured

vehicle was not the instrumentality that caused the injuries and

death of Gamaliel.  Because the uninsured motorist provisions in

plaintiff's policy allow coverage only for injuries that occurred

during an accident that arose out of the operation or use of an uninsured vehicle, the plain language of the policy precludes

coverage for the injuries that Gamaliel sustained as a result of

the gunshot that struck him.  Therefore, we conclude that it was

not within the reasonable contemplation of the parties to

plaintiff's automobile insurance policy that the "arising out of"

language in the uninsured motorist provisions of plaintiff's policy

would apply and provide coverage for the injuries that resulted

from the situation that occurred in this case.  Accordingly, the

trial court erred when it determined that the "accident" that

occurred in this case "arose out of" the operation or use of an

uninsured vehicle.

	Plaintiff also contends that the summary judgment in her favor

should be affirmed because the "arising out of" language in the

uninsured motorist provisions of the policy creates a latent

ambiguity in the policy.  Plaintiff asserts that the ambiguity is

shown by the inconsistent construction of similar terms by various

courts.  Plaintiff argues that we should construe the ambiguity

against State Farm and in her favor.

	We disagree.  Under Curtis, Aryainejad, Laycock, and Rosenberg, the terms "arising out of" are sufficiently unambiguous to be tested as to their applicability in a given set of

circumstances using the reasonable contemplation test.  We

recognize that the applicability of the terms will vary with the

circumstances.  However, this does not render the terms ambiguous.

	Based on the foregoing, the judgment of the circuit court of

Winnebago County is reversed.

	Reversed.

	McLAREN and BOWMAN, JJ., concur.