THIRD DIVISION

									February 28, 2001

No. 1-00-1960

STATE FARM FIRE AND CASUALTY CP,OMPANY,			)

 COMPANY,								)   Appeal from the

	Plaintiff-Appellee,							)   Circuit Court of

	                   Plaintiff-Appellee,				)   Cook County.

								)

		v.						)   

								)	

BEATRICE ROSENBERG,					)   Honorable	

								)   Julia M. Nowicki,

	Defendant-Appellant.			)   Judge Presiding.

	JUSTICE WOLFSON delivered the opinion of the court:

     The question in this case is whether the injuries sustained

by Beatrice Rosenberg (Rosenberg) during a carjacking were

covered under the uninsured motorist provision of her automobile

insurance policy, issued by State Farm Fire and Casualty Company

(State Farm).  The trial court found the policy did not cover

Rosenberg's injuries, and granted summary judgment in favor of

State Farm.  Rosenberg appeals, contending the trial court erred in finding the policy did not cover her injuries and in denying

her motion for summary judgment.  We affirm.

FACTS

     State Farm issued an automobile insurance policy to

Rosenberg in April 1996.  

     On December 9, 1996, Rosenberg got out of her 1995 Chevrolet

Blazer and began walking through the parking lot of her workplace

in Niles, Illinois.  As she was walking, Frank Tripp approached

her, waved a gun, and demanded her purse and car keys.  After Rosenberg gave Tripp her purse and keys, he ordered her to get back into the Blazer on the passenger's side of the front seat. 

Tripp got into the driver's seat and drove the Blazer onto the

Edens Expressway.

     Once they were on the expressway, Tripp shot Rosenberg in

the head and arm, opened the car door, and pushed her onto the

expressway while the car was still moving.  Rosenberg sustained

injuries from the bullet wounds to her arm and head, as well as

minor bruises and abrasions from being pushed out of the vehicle. 

     Rosenberg filed a claim with State Farm under the uninsured

motorist provision of her insurance policy.  On June 29, 1998,

State Farm filed a complaint for declaratory judgment seeking a

determination that the uninsured motorist provision did not cover

the injuries Rosenberg sustained during the carjacking incident.  

     Both parties filed motions for summary judgment.  The trial

court found the uninsured motorist provision of Rosenberg's

policy did not cover her injuries because the injuries sustained

by Rosenberg were not the kinds of injuries that are normally

associated with the ownership, use, or maintenance of a vehicle. 

The court granted State Farm's motion for summary judgment and

denied Rosenberg's motion. 

DECISION

     Rulings on summary judgment motions are subject to de novo review.  Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204 (1992).  Summary judgment is proper only if the pleadings, depositions, admissions,

affidavits, and other relevant matters on file show there is no

genuine issue of material fact and that the movant is entitled to

judgment as a matter of law.  Smith v. Tri-R. Vending, 249 Ill. App. 3d 654, 657, 619 N.E.2d 172 (1993).  Where both parties have

filed motions for summary judgment, they agree that only a

question of law is presented and invite the court to decide the

issues on the record.  Laycock v. American Family Mutual Insurance Co., 289 Ill. App. 3d 264, 266, 682 N.E.2d 382 (1997).

     Insurance polices are contracts, and should be construed as

other contracts are construed.  General Insurance Company of America v. McManus, 272 Ill. App. 3d 510, 514, 650 N.E.2d 1080 (1995).  If the provisions of a policy are clear and unambiguous,

they must be given their plain and ordinary meaning.  Laycock, 289 Ill. App. 3d at 267.  

     The applicable provision of the automobile insurance policy

issued to Rosenberg by State Farm says:    

	"UNINSURED MOTOR VEHICLE - COVERAGE U

	***

	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.)

Because Tripp was not an insured driver under the policy,

Rosenberg's car is considered an "uninsured motor vehicle" for

purposes of this provision.  Barnes v. Powell, 49 Ill. 2d 449, 454-55, 275 N.E.2d 377 (1971).  State Farm agrees.

     Neither party disputes that the injuries arose from an

"accident."  Instead, the dispute centers around whether the

accident arose out of the "operation, maintenance or use of [the]

uninsured motor vehicle."  Rosenberg contends her injuries were

the direct and proximate result of the use of her car.  She

reasons the injuries would not have occurred but for Tripp's

desire to steal the vehicle.  Rosenberg also asks us to find that

injuries sustained during a carjacking are a type of risk

contemplated by the parties to an auto insurance policy.

     Rosenberg relies on Dyer v. American Family Insurance Co., 159 Ill. App. 3d 766, 512 N.E.2d 1071 (1987).  In Dyer, the plaintiff and her friend were sitting in the friend's car when a

man opened the driver's door, brandished a knife, and ordered

them to move to the passenger's side of the car.  The abductor

drove out of the parking lot and headed toward Wisconsin at a

high rate of speed.  Two police cars began chasing the vehicle.; 

Tthe abductor tried to elude them.  During the high speed chase,

the passenger-side door of the car flew open.  The plaintiff's

legs were hanging out of the vehicle as the abductor continued to

drive.  The plaintiff sustained injuries as a result of the wild

manner in which the abductor drove while her legs were hanging out of the car.

     At the time of the accident, the plaintiff was living with

her father and qualified as an "insured" under the terms of his

automobile insurance policy.  The plaintiff made a claim under

the uninsured motorist provision of her father's policy.  That

provision said:

	     "We will pay damages which a covered person is

legally entitled to recover from the owner or operator

of an uninsured motor vehicle because of bodily injury:

	     1. Sustained by a covered person; and

	     2. Caused by an accident."  Dyer, 159 Ill. App. 3d at 769.

     When her insurance company refused coverage, the plaintiff

filed a declaratory judgment action against ithem.  The trial court

granted the plaintiff's motion for summary judgment, finding she

was entitled to coverage under this provision of the policy.  The

defendant appealed, contending the plaintiff's injuries were not

covered under the policy because they were the result of the

kidnapper's intentional acts, and were not "caused by an

accident."  The appellate court affirmed the trial court's

decision, finding the injuries were "unforeseen, unintended, and

unexpected from the plaintiff's point of view" and therefore

accidental.  Dyer, 159 Ill. App. 3d at 773-74.

     This case differs from Dyer in two respects: first, the policy language in this case is more restrictive.  The language of the policy does not simply require an "accident," as it did in

Dyer.  I, it requires an "accident [that arose] out of the operation *** or use" of the car.  Second, the injuries in Dyer were the direct result of the manner in which the uninsured motor vehicle

was driven.  A causal connection existed between the operation of

the uninsured vehicle and the plaintiff's injuries.  

     Here, the 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, as it did in Dyer.

     In cases analyzing insurance policies with language similar

to that found in Rosenberg's policy, coverage was denied where

the insured could not prove a causal connection existed between

the use or operation of the vehicle and the insured's injuries. 

See Laycock, 289 Ill. App. 3d at 268; Aryainejad v. Economy Fire & Casualty Co., 278 Ill. App. 3d 1049, 663 N.E.2d 1107 (1996); Country Companies v. Bourbon, 122 Ill. App. 3d 1061, 1065-66, 462 N.E.2d 526 (1984); Curtis v. Birch, 114 Ill. App. 3d 127, 131, 448 N.E.2d 591 (1983). 

     In Curtis, the appellate court was asked to determine whether an uninsured motorist provision in an automobile

insurance policy covered the shooting death of a passenger in one car caused by shots allegedly fired by a driver of a second,

uninsured car.  The court said:

	     "Those 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.

	***

	Here *** the instrumentality of the victim's injuries

was a hand gun. *** The fact that the assailant was in

a car at the time was merely incidental."  Curtis, 114 Ill. App. 3d at 131.

     In Bourbon, the policy included language similar to that used in Rosenberg's policy, but the injuries unquestionably

resulted from an accident arising out of the use or operation of

the uninsured vehicle.  Bourbon, 122 Ill. App. 3d at 1065.  There, the driver of the uninsured vehicle chased the insured,

bumped his car, pulled ahead of the insured's vehicle, then

turned around and drove directly at him.  

     When the insured tried to avoid hitting the uninsured

driver, he lost control of his car, flipped it three times, and

sustained the injuries for which he sought compensation.  The

appellate court found the insured was entitled to coverage under

the uninsured motorist provision of his policy, but explicitly distinguished Curtis, noting that in Curtis the car was not the "instrumentality" of the insured's injuries.  Bourbon, 122 Ill. App. 3d at 1065-66.  Coverage was found because the insured's injuries arose out of an accident caused by the manner in which

the uninsured vehicle was being driven.  Bourbon, 122 Ill. App. 3d at 1065 (accident arose out of physical contact between

vehicles).

     In Aryainejad, the appellate court explicitly precluded coverage in cases involving injuries arising out of a physical

assault.  Aryainejad, 278 Ill. App. 3d at 1054-55.  In that case, the accident was caused when the insured swerved to avoid hitting

the driver of the uninsured vehicle, who was walking in the

middle of a traffic lane on the interstate after his car ran out

of gas.  The court noted that the injuries to the insured arose

out of the use of the uninsured vehicle and found coverage under

the policy, but also said:

	     "We agree that an automobile must do more than

merely transport a person to the site where the

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."  Aryainejad, 278 Ill. App. 3d at 1054-55.

     The appellate court applied this reasoning in Laycock.  In Laycock, plaintiff's son, Steven, was involved in a near automobile collision with another driver.  The driver of the

other car got out of his vehicle and beat Steven on the face,

head, neck, and eyes through Steven's open window.  Plaintiff

sought compensation for his son's injuries under the uninsured

motorist provision of his automobile insurance policy.

     The appellate court affirmed the trial court's entry of

summary judgment in favor of the insurance company, and said:

	     "While the words 'arising out of' have been

interpreted broadly to mean originating from, incident

to, or having a causal connection with the use of the

vehicle [cite], 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.

	***

	     *** [A]n 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."  Laycock, 289 Ill. App. 3d at 268-69.

     The same analysis has been used in cases in which the

insureds sought coverage under the liability provisions of their

auto insurance policies.  See State Farm Insurance Company v. Pfiel, 304 Ill. App. 3d 831, 837, 710 N.E.2d 100 (1999)(liability coverage denied where insured's son murdered 13-year old girl

inside car because liability arose from "nonvehicular conduct");

U.S. Fidelity & Guaranty Co. v. Jiffy Cab Co., 265 Ill. App. 3d 533, 539, 637 N.E.2d 1167 (1994)(use of cab too remote,

incidental, or tenuous to support liability coverage where cab

driver stabbed passenger during altercation).

     Based on the cases discussed above, we find Rosenberg's

injuries did not arise out of the operation or use of her car. 

As in Curtis, the "instrumentality" of Rosenberg's injury was a hand gun, not the uninsured vehicle.  Rosenberg's gunshot wounds

occurred independently of the "operation" or "use" of the

vehicle.  Because Rosenberg's policy allows coverage only for

injuries that occurred during an accident that arose out of the

operation or use of the vehicle, the plain language of the

uninsured motorist provision in Rosenberg's auto insurance policy

precludes coverage for the injuries sustained during the carjacking.  

     Accordingly, the judgment of the circuit court is affirmed.

     Affirmed.

	CERDA, and BURKE, JJ., concur.