Filed: November 15, 1996

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 95-2036

(CA-94-315-A)

Dennis Huston, etc.,

Plaintiff - Appellant,

versus

State Farm Mutual Automobile Insurance

Company,

Defendant - Appellee.

ORDER

The Court amends its opinion filed October 29, 1996, as follows:

On page 2, footnote *, line 4 -- the phrase "an insured motor

vehicle" is corrected to read "an uninsured motor vehicle."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DENNIS HUSTON, Administrator of

the Estate of Daniel Huston,

Plaintiff-Appellant,

v. No. 95-2036

STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CA-94-315-A)

Argued: March 7, 1996

Decided: October 29, 1996

Before WIDENER, HAMILTON, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed by published per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Brien Anthony Roche, JOHNSON & ROCHE, McLean,

Virginia, for Appellant. Gary Brooks Mims, BRAULT, PALMER,

GROVE, ZIMMERMAN, WHITE & MIMS, Fairfax, Virginia, for

Appellee.

_________________________________________________________________
OPINION

PER CURIAM:

This case arises from a carjacking on September 9, 1994 in which

Daniel Huston was shot twice and fatally wounded by a carjacker. At

the time of the shooting, Huston and the carjacker were in Huston's

automobile, which was insured under a policy issued by State Farm.*

The carjacker approached Huston just after Huston got into his car.

The carjacker, who was under the steering wheel, made Huston and

his companion get into the back of the car and then attempted to start

the car. The carjacker, however, could not start the car because the car

required an anti-theft key to start the ignition, which Huston had with

him. At some point after this, the carjacker fired his gun and wounded

Huston twice. Huston died as a result of the gunshot wounds.

The administrator of Huston's estate sought a declaratory judgment

from the United States District Court for the Eastern District of Virginia that Huston's damages arose out of the use of an uninsured automobile. Diversity jurisdiction existed under 28 U.S.C. § 1332. On

cross-motions for summary judgment, the district court denied Huston's motion and granted State Farm's motion.

We certified to the Supreme Court of Virginia the question of

whether or not Huston's injuries arose out of the use of the automobile within the meaning of the policy of insurance involved. While

that Court denied our certification, it stated in its order that "[n]othing

in the present case distinguishes it from Lexie v. State Farm Mut.

Auto. Ins. Co., 251 Va. 390, 469 S.E.2d 61 (1996), where uninsured

motorist coverage was denied because the conduct of the assailant in

the death of the victim did not constitute use of a vehicle as contem-

_________________________________________________________________

* The insurance policy, which is a part of this record, provides for

uninsured motorist coverage. State Farm does not contest that, because

the carjacker was attempting to use Huston's vehicle without his permission, the vehicle was an uninsured motor vehicle at the time of the carjacking within the meaning of the policy. State Farm also candidly admits the

death of Daniel Huston was caused by accident, also within the meaning

of the policy.

 2
plated by the uninsured motorist statute or the uninsured motorist provisions of the subject insurance policy."

We do not distinguish the conduct of the assailant in this case from

the conduct of the assailant in Lexie and hold that Lexie governs this

case.

The judgment of the district court is accordingly

AFFIRMED.

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