* The Honorable Pierce Lively, United States Circuit Judge for the Sixth Circuit, sitting by

designation. PUBLISH UNITED STATES COURT OF APPEALS Filed 6/18/96 TENTH CIRCUIT

________________________ STATE FARM MUTUAL AUTOMOBILE INSURANCE ) COMPANY, an Illinois corporation, ) ) Plaintiff-Appellee, ) ) v. ) No. 95-2087 ) EDMOND BLYSTRA; BARBARA BLYSTRA, ) individually and as parent and natural guardian of KEVIN ) BLYSTRA, a minor, ) ) Defendants and Third-Party Plaintiff-Appellants, ) ) v. ) ) FARMERS INSURANCE COMPANY OF ARIZONA, ) ) Third-Party Defendant-Appellee. )

__________________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO (D.C. No. CIV-94-1030-JP/WWD)

_________________________ Thomas L. Grisham of Grisham & Lawless, P.A., Albuquerque, New Mexico, for Appellants. James E. Lieuwen of Pelton & O'Brien, P.A., Albuquerque, New Mexico, for F armers Insurance Company of Arizona, and Rudolph Lucero (Terri L.Sauer with him on the brief) of Miller, Stratvert, Torgerson & Schlenker, P.A., Albuquerque, New Mexico, for State Farm M utual Automobile Insurance Company.

_________________________ Before BRORBY, BARRETT and LIVELY , * Circuit Judges.2

BRORBY , Circuit Judge.

_________________________ I. Factual & Procedural Background As Kevin Blystra was walking home from school, either the passenger or drive r of a white pickup truck shot him in the leg with a pellet gun as the truck drove by . Neither the driver nor the passenger of the truck have been identified. At the time of the incident, Kevin was sixteen years old and lived with his parents, Edmond and Barbara Blystra. The B lystras have incurred substantial medical expenses as a result of the shooting.

At the time of the shooting, Edmond Blystra had two automobile insuranc e policies issued by State Farm Mutual Automobile Insurance Company ("State Farm") a nd three automobile insurance policies issued by Farmers Insurance Company of Arizona ( "Farmers"). Kevin qualified as an insured under the State Farm and Farmers policies. Each of the pol icies included uninsured motorist coverage and medical payments coverage. The State Farm policies provided uninsured motorist coverage pursuant to the following language: We will pay damages for bodily injury or property damage an ins ured is legally entitled to collect from the owner or driver of an uninsured motor ve hicle. The bodily injury or property damage must be caused by accident arisingout of the ownership, maintenance or use of an uninsured motor vehicle. (Emphasis omitted.)
The uninsured motorist provision of the Farmers policies read as follows: We will pay all sums which an insured person is legally ent itled to recover as damages from the owner or operator of an uninsured motor vehicle because of:2 The district court ultimately dismissed the Blystra ' bad faith claim with prejudice, but that claim is not before

this court on appeal.

3

(a) bodily injury sustained by the insured person. The bodily injury must be caused by accident and arise out of the ownership, maintenance or use of the uninsured motor vehicle. (b) Property damage. (Emphasis omitted.)
The State Farm policies did not define the term "accident." The Farmers policies defined "accident" as "a sudden event, including continuous or repeated exposure to the same conditions, resulting in bodily injury or property damage neither expected nor i ntended by the insured person." (Emphasis omitted.) Both the State Farm and Farmers policies inc luded "hit-and-run" incidents within their uninsured motorist coverage provisions.

With respect to medical payments coverage, both the State Farm and Farmers policies required that the insured sustain bodily injury "through being struck by[] a motor vehicle or trailer."

Following the shooting, the Blystras filed claims with State Farm seeking coverage under the uninsured motorist and medical payments provisions of the State Fa rm policies. At the Blystras' request, State Farm filed a complaint in the district court seeking dec laratory relief with respect to its liability for uninsured motorist and medicial payments coverage. The Blystras filed an answer asserting coverage was appropriate and counter-claimed against State Farm, claiming State Farm denied coverage in bad faith. 2 The Blystras also filed a third-party complaint for declaratory relief4

against Farmers, claiming Farmers was liable for uninsured motorist and medical payments benefits. Farmers filed an answer denying the Blystras were entitl ed to any benefits. The Blystras filed motions for summary judgment against State Farm and Farmers, a nd the insurance companies filed cross-motions for summary judgment against the Blystras.

The district court granted State Farm's and Farmers' motions for summary judgment against the Blystras. According to the district court: neither the uninsured motorists nor the medical payments provisions of the State Farm or Farmers policies cover Kevin Blystra's injuries whic h resulted from a driveby shooting. Kevin Blystra was the victim of a crime, not an accident. A drive-by shooting was not a risk the parties reasonably contemplated as insurable.
The Blystras filed a motion for reconsideration, which the district court denied. The Blystras appealed to this court. We exercise jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand for further proceedings.

II. Standard of Review & Applicable Law We review de novo the grant or denial of a motion for summary judgme nt, applying the same legal standard used by the district court pursuant to Fed. R. Ci v. P. 56(c). Reich v. Stangl , 73 F.3d 1027, 1029 (10th Cir. 1996), petition for cert. filed , No. 95-1631, 64 USLW 3709 (Apr. 9, 1996). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, 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 judg ment as a matter of law." Fed. R. Civ. P. 56(c). "'When applying this standard, we examine the factual record and re asonable inferences in5

the light most favorable to the party opposing summary judgment.' If ther e is no genuine issue of material fact in dispute, then we next determine if the subst antive law was correctly applied by the district court." Wolf v. Prudential Ins. Co. of Amer. , 50 F.3d 793, 796 (10th Cir. 1995) (quoting Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc. , 912 F.2d 1238, 1241 (10th Cir. 1990)).

The district court's jurisdiction over this case was based on dive rsity of citizenship. 28 U.S.C. § 1332. A federal court sitting in diversity applies the substantive laws of the forum state. Barrett v. Tallon , 30 F.3d 1296, 1300 (10th Cir. 1994). We review de novo the district court's determinations of state law. Salve Regina College v. Russell , 499 U.S. 225, 231 (1991). Because New Mexico is the forum state in this dispute, "we must apply the most recent statement of state law by the" New Mexico Supreme Court. Wood v. Eli Lilly & Co. , 38 F.3d 510, 513 (10th Cir.1994).

III. Analysis We are faced with four issues, each of which derives from the language of the State Farm and Farmers policies. Though the uninsured motorist coverage language di ffers slightly between the State Farm and Farmers policies, both of the companies' policies share three essential elements that are relevant to this case. First, Kevin Blystra's injuries must have been "c aused by" an "accident." Second, Kevin's injuries must have "aris[en] out of the ownership, maintenance, or use of" the uninsured motor vehicle. Third, Kevin must have been legally entitled to recove r damages for his injuries from the owner or operator of the uninsured motor vehicle. Wi th respect to the medical payments coverage, the State Farm and Farmers policies do not pr ovide coverage unless Kevin sustained his injuries "through being struck by" a "motor vehicle or trailer." We begin our analysis6

with the three issues implicated by the uninsured motorist coverage provisions.

A. Uninsured Motorist Coverage 1. Caused by an Accident Because the district court granted State Farm's and Farmers ' motions for summary judgment after concluding Kevin Blystra's injuries were not caused by an "accident," we start with this issue. In the time since the district court entered its final judgme nt in this case, the New Mexico Supreme Court decided Britt v. Phoenix Indem. Ins. Co. , 907 P.2d 994 (N.M. 1995). In Britt , a case similar to the one at bar in several respects, the New Mexico Supreme Court was asked to decide "whether uninsured motorist coverage extends to a victim of an intentional tort perpetrated by a passenger in an uninsured motor vehicle." Id. at 995. On the issue of whether the intentional tort was an "accident," the court adopted the following rule: [I]n analyzing whether a particular incident is an "accident" for purposes of uninsured motorist coverage, the courts should view the incident from the injur ed party's perspective. Thus if the event causing the injury is unintended and unexpe cted from the injured party's viewpoint, the injury is deemed to have occurre d as a result of an accident.

Id. at 997. Based on the adoption of this rule, the court concluded that injuri es caused by an intentional stabbing "arose out of an 'accident' as that term is used in the uninsured motorist endorsements." Id.

State Farm and Farmers conceded in oral argument that the Britt decision requires us to conclude the district court applied the wrong rule of law when it decided Kevin Blystra's injuries7

were not caused by an "accident." See Wood , 38 F.3d at 513 (in diversity case we must apply the most recent statement of state law by the forum state's highe st court). As Britt makes clear, an injury is caused by an "accident" in New Mexico for purposes of uninsure d motorist coverage "if the event causing the injury is unintended and unexpected from the injured party 's viewpoint." Britt , 907 P.2d at 997. Given this standard, the district court erroneously concluded that an intentional criminal act cannot be an "accident."

In his affidavit filed in support of the Blystras' motion for s ummary judgment, Kevin Blystra stated, "I do not know why I was shot, whether or not the shot was int ended for me or who fired the shot. I may have been mistaken for someone else or the shots may ha ve been randomly fired and hit me by accident." In our view, this statement establishes Kevin nei ther intended nor expected to be shot. Given that State Farm and Farmers proffered no affidavits or other documents contemplated by Fed. R. Civ. P. 56(e) creating a genuine dispute as to whether Kevin intended or expected to be shot, we conclude Kevin Blystra's injuries were caused by an " accident" within the meaning of the uninsured motorist provisions of the State Farm and Farmers policies. State Farm and Farmers contend a genuine issue of fact exists as to whether Kevin Bly stra intended or expected to be shot. In support of this contention, they suggest he may have somehow provoked his assailant. We have seen no evidence in the record that supports this contention. We ta ke no view on whether someone who provokes an attacker expects or intends to be shot.

2. Ownership, Maintenance, or Use As we move to the next issue, Britt again offers us guidance. In Britt , the New Mexico8

Supreme Court adopted a three-part test, borrowed from Continental W. Ins. Co. v. Klug , 415 N.W.2d 876, 878 (Minn. 1987), for determining whether an insured's injuries arose out of the ownership, maintenance, or use of an uninsured vehicle. Britt , 907 P.2d at 999. First, we must consider "whether there [wa]s a sufficient causal nexus between the use of the uninsured vehicle and the resulting harm." Id. To satisfy this standard, the vehicle must have been "an 'active accessory' in causing the injury." Id. (quoting Klug , 415 N.W.2d at 878). Second, we must "consider whether an act of independent significance broke the causal link between the use of the vehicle and the harm suffered." Id. at 1000 (citing Klug , 415 N.W.2d at 878). Finally, we must "consider whether the 'use' to which the vehicle was put was a normal use of that vehicle. For example, transportation would be a normal use, whereas use of a parked car for a gun rest wo uld not be." Id (citing Klug , 415 N.W.2d at 878).

The undisputed facts of the instant case reveal that either the pa ssenger or driver of a pick-up truck shot Kevin Blystra as the truck drove by him. We begin our analysis with Britt's third prong, because it is the least disputed aspect of the necessary analy sis. In fact, neither State Farm nor Farmers contend in their briefs that this prong is not satisfie d. Under Britt's third prong, we must determine whether the use of the truck during the shooting was a "norm al use" of the vehicle. Id. At the time of the shooting, the assailant was utilizing the truck as transportation; i.e. , he was using the truck as a means "[t]o convey [himself] from one place to another." Webster's II New Riverside University Dictionary 1228 (1984) (defining "transport"). Clearly, suc h use falls within Britt's "normal use" requirement. Britt , 907 P.2d at 1000 ("transportation would be normal use"); see Klug , 415 N.W.2d at 878-79 (concluding that a motorist who shot another motorist from his moving car9

"was using his car for motoring purposes" during the assault) (cite d with approval in Britt , 907 P.2d at 1000).

We now focus on the two remaining issues: whether there was a sufficient causal nexus between the use of the truck for transportation and Kevin Blystr a's injuries and, assuming a sufficient causal nexus did exist, whether an act of independent significance broke the causal link. See Britt , 907 P.2d at 999-1000. For a there to be a "sufficient causal nexus betwe en the use of the uninsured vehicle and the resulting harm," the vehicle must have been "an acti ve accessory in causing the injury." Id. at 999 (internal quotation marks and citations omitted). When an a utomobile is used by an assailant to undertake a drive-by shooting, the automobile is al most by definition an "active accessory" to the assault. Through the use of an automobile, a driv e-by shooter achieves several advantages in the commission of his crime that would otherwise be unavailable to him. First, the assailant can use the vehicle to unsuspiciously and quickly approach his victim, all the while hiding from public observation that he is armed with a gun. Second, during the commission of the assault, the assailant can use the vehicle to help hide his identity. T hird, the assailant can use the vehicle to leave the scene quickly and avoid apprehension. In his affidavit in suppor t of the Blystras' motion for summary judgment, Kevin Blystra stated: "The automobile wa s used to approach me head on. The shot was fired from the moving vehicle and the vehicle was the n used to escape the scene." Under these circumstances, we conclude the white truck that tra nsported the assailant who shot Kevin Blystra was an "active accessory" to Kevin's assault. See Cung La v. State Farm Auto. Ins. Co. , 830 P.2d 1007, 1011 (Colo. 1992) ("it is sufficient that the claimants dem onstrate that the injury originated in, grew out of, or flowed from a use of a vehicle") (internal quotation marks and citations10

omitted) (cited with approval in Britt , 907 P.2d at 999); Klug , 415 N.W.2d at 877-78 (assailant's car was "active accessory" to shooting when assailant used the ca r to pull alongside victim's car as the two were driving down the highway). Because the truck was an "active accessory," there was a "sufficient causal nexus" between its use and Kevin Blystra's injuries. Britt , 907 P.2d at 999.

Finally, we ask "whether an act of independent significance broke the causal link between the use of the" assailant's truck and Kevin Blystra's injuries. Id. State Farm and Farmers contend the intentional shooting of Kevin broke the causal link between the ass ailant's use of the car and Kevin's injuries. In support of this contention, State Farm and Farmers point us to ca ses relied on by the New Mexico Supreme Court in Britt for its holding that an act of "independent significance" can break the necessary causal nexus. To be sure, in Britt the court relied on decisions that recognize the causal link between the use of the vehicle and the victim's injuries may be broken by an intervening intentional tort. See id. at 1000 (citingKlug , 415 N.W.2d at 878; Kish v. Central Nat'l Ins. Group of Omaha , 424 N.E.2d 288, 294 (Ohio 1981); United Servs. Auto. Ass'n v. Ledger , 234 Cal. Rptr. 570, 572 (Cal. Ct. App. 1987)). All of these cases, howe ver, share an additional element as support for their reasoning--an element we view as crucial to understanding their holdings. Given that Klug is relied on so heavily by the New Mexico Supreme Court in Britt , see Britt , 907 P.2d at 999-1000, we find it the most instructive.

In Klug , the victim was driving home from work on the highway when his assailant pull ed alongside him and shot Klug in the arm with a shotgun. Klug ultimatelyescaped his assailant and received assistance. Klug , 415 N.W.2d at 877. After concluding a sufficient causal nexus exis ted11

between Klug's injuries and the assailant's use of his automobile , the court examined whether "an act of independent significance occurred to break the causal link." Id. at 878. The court concluded the causal link had not been broken. The court reasoned that the assailant's "actions of driving and shooting were inextricably linked. Had [the assailant] used his ve hicle to drive ahead of Klug, left his vehicle, and shot Klug from the side of the road, we might have found an intervening ac t." Id. In Klug , the Supreme Court of Minnesota drew on another of its decisions to explain its approach to the intervening act of independent significance: In Holm [ v. Mutual Service Casualty Ins. Co. , 261 N.W.2d 598, 603 (Minn. 1977)], we found an act of independent significance where a police officer, after pursuing a motorcycle, left his vehicle to make an arrest and committed a ba ttery upon the motorcyclist. We stated, "[the officer] had completely left the vehicle before he administered the tortious battery. The police car served only to transport him to the scene of the incident. The battery could as easily have occurr ed had [the officer] come upon the stationary motorcycle on foot." Klug , 415 N.W.2d at 878.

As Klug indicates, an intentional tort alone does not constitute an act of independent significance sufficient to break the causal link between an assailant's use of his vehicle and the victim's injuries. It is at least equally important that the assaila nt do something to disassociate the intentional tort from his otherwise normal use of the vehicle. A s Klug and Holm make clear, this might occur if the assailant stops his vehicle and commits the t ort after leaving the vehicle. In such a case, the vehicle serves merely to transport the assailant to the scene of the crime and therefore is not an active accessory to the resulting injuries. See Klug , 415 N.W.2d at 878 (quoting Holm , 261 N.W.2d at 603).12

Given Britt's heavy reliance on Klug , we are convinced the Supreme Court of New Mexico intended to adopt Klug's requirement that an intentional tort does not break the causal ne xus between an assailant's use of his vehicle and the victim's injuries unles s the assailant does something to disassociate his use of the vehicle from the commission of the tor t. The other decisions cited by the court in Britt

as support for its adoption of the act-of-independent-significance inquir y confirm our reading of Britt . In Kish , the Supreme Court of Ohio concluded no causal link existed in the cas e where the assailant emerged from his stopped vehicle in a traffic dispute and fatally shot the other driver, who had also gotten out of his vehicle. Kish , 424 N.E.2d at 289, 294. The court explained: The relevant inquiry is whether the chain of events resulting in the accident was unbroken by the intervention of any event unrelated to the use of the vehicle . The application of this standard to the instant facts leads us to concl ude that the intentional, criminal act of the murderer was an intervening caus e of injury unrelated to the use of the vehicle. As the court below stated, "the death resul ted from an act wholly disassociated from the and independent of the use of the vehicle as such ." Id. at 294 (cited in Britt , 907 P.2d at 1000) (emphasis added).

Ledger , the third case cited in Britt as support for its act-of-independent-significance inquiry, suggests the same analysis as Klug and Kish . In Ledger , two men were involved in a minor traffic incident. The man whose car was damaged followed the other for seve ral miles. The men eventually pulled into a parking area, got out of their cars, and began to fig ht. In the course of the fight, one combatant fatally stabbed the other. Ledger , 234 Cal. Rptr. at 570. The California Court of Appeal concluded "there was an insufficient causal connection between the stabbing and the vehicle to consider that the former 'arose out of the use' of the latter." Id. at 572. According to the court, "[t]he stabbing itself, however regrettable and unfortunate, was not ca usally connected with [the assailant's]13

use of the vehicle .... [T]he vehicle served only to transport [the a ssailant] to the scene where the stabbing took place." Id.

Our reading of New Mexico law as indicated by Britt leads us to conclude no act of independent significance broke the causal link between Kevin Blystra's injuriesand his assailant's use of the white truck that made the drive-by shooting possible. As we have already explained, the vehicle was an "active accessory" to the shooting. The drive-by shooter undertook no intervening action sufficient to disassociate his use of the truck from the shooting -- the "actions of driving and shooting were inextricably linked." Klug , 415 N.W.2d at 878.

We note that in Britt

the court remanded for further factual determinations on the issue of whether the causal link was broken and therefore did not decide the issue as a matter of law. Britt , 907 P.2d at 1000. Given the undisputed facts in the instant case, Britt does not require us to do the same. In Britt , the assailants were passengers who got out of a car involved in a n accident and stabbed a passenger in the other vehicle. As the court noted, there was a factual dispute in Britt as to whether the driver of the assailants' vehicle "intentionally rammed [the victim's] vehicle in complicity with the assailants or in order to facilitate the attack." Id. According to the Supreme Court of New Mexico, if the driver did intentionally aid the assailants then the assailants' actions probably did not constitute an "independent intervening cause" sufficient to cut off the nexus between the driver's act ions and Britt's injuries. If, on the other hand, the collision was accidental and the assai lants developed the intent to attack Britt after the collision, perhaps due to hot t empers resulting from the collision, then their actions broke the causal link between the use of the vehicle and Britt's injury.14

Id.

The instant case suffers from no such factual dispute. Though the pa rties disagree over whether the driver or passenger of the white truck shot Kevin Blystra, the dispute is immaterial to the question of whether Kevin's injuries arose out of the assailant' s use of the vehicle. Whether it was passenger or driver who shot Kevin cannot change the fact tha t the vehicle was an integral element of the drive-by shooting. The Britt court's decision to remand only reaffirms our view that the assailant must disassociate his assault from the vehicle'suse to create a break in the causal chain. In remanding, the court merely recognized that, given the right facts, the causal chain might not be broken even though the assailant commits his assault after exiting the stopped vehicle

.

Having concluded that each element of Britt's three-part test is satisfied, we conclude Kevin Blystra's injuries arose out of the ownership, maintenance, or use of the uninsured vehicle. See Britt , 907 P.2d at 999-1000.

3. Entitled to Recover Damages from the Owner or Operator We now address the final issue implicated by the uninsured motorist provisions of the State Farm and Farmers policies. Even though Kevin Blystra's injuries were caused by an "accident" and arose out of the ownership, maintenance, or use of the uninsured ve hicle, the policies confer uninsured motorist benefits only if he would be legally entitled to recover damages for his injuries from the owner or operator of the uninsured motor vehicle. Whether Kevin Blystra could rec over damages from the owner or operator of the white truck must be answe red by reference to the15

substantive tort law of New Mexico. See Britt , 907 P.2d at 998 (citing State Farm Auto. Ins. Co. v. Ovitz , 873 P.2d 979, 981 (N.M. 1994)). As the Britt court noted, "fault principles have long been a fundamental tenet of the substantive tort law of New Mexico." Id. Thus, Kevin could not recover from the owner or operator of the white truck unless such person sha res some actionable fault for Kevin's injuries.

A factual dispute exists as to whether the driver or passenger of the white truck shot Kevin Blystra. In two affidavits submitted in the summary judgment stage of this litigation, Kevin insists the driver shot him. The police report and the investigating officer assert the passenger shot Kevin. Obviously, if the driver shot him, Kevin would be entitled to recover damages from the driver. If the passenger shot him, Kevin still might be able to recover fr om the driver if the driver's role in the shooting amounted to a tort under New Mexico law. Because of this factual dispute, we have no choice but to remand the case to the district court for further factual determinations on the issue of whether Kevin Blystra could recover damages from the owner or operator of the white truck.

B. Medical Payments Coverage The provisions governing medical payments coverage under the State Fa rm and Farmers policies do not provide benefits unless Kevin sustained his injuries "through being struck by" a "motor vehicle or trailer." We must therefore decide whether bei ng shot with a bullet fired from a passing vehicle amounts to be being struck by that vehicle. Observing that the Supreme Court of New Mexico has determined that the phrase "struck by a motor vehicle" is vague and should be construed in favor of the insured, see Foundation Reserve Ins. Co. v. McCarthy , 419 P.2d 963, 96416

(N.M. 1966), the Blystras urge us to conclude that Kevin was "struck by" the whi te truck. Simply because vague insurance language must be read in the insured's favor , does not mandate that we find for the insured. The Blystras have brought forward no New Mexico law that convinces us to r ead "struck by a motor vehicle" so liberally as to include being struck by a bullet fired from gun held by a passenger in the motor vehicle. The undisputed facts show that Kevin Blystr a was not struck by the white truck. He is not entitled to medical payments coverage under the St ate Farm or Farmers policies.

The judgment of the district court is AFFIRMED as to medical payments coverage, REVERSED as to uninsured motorist coverage, and REMANDED for proceedings consistent with this opinion.