*

 Former Chief Circuit Judge Robert H. Henry was originally a member of

this panel. He resigned his commission effective June 30, 2010, and has been

replaced on this panel by Circuit Judge Paul J. Kelly, Jr.

FILED

United States Court of Appeals

Tenth Circuit

August 24, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STATE FARM MUTUAL

AUTOMOBILE INSURANCE

COMPANY, 

Plaintiff-Appellee,

v. No. 09-1415

BARBARA FISHER,

 Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. No. 1:08-cv-01687-REB-MEH)

Steven T. Nolan, Steven T. Nolan, P.C., Colorado Springs, Colorado, (Joseph R.

Winston, The Winston Law Firm, P.C., Colorado Springs, Colorado, with him on

the briefs), for Defendant-Appellant.

Marc R. Levy, (Scot C. Kreider with him on the brief), Levy, Morse & Wheeler,

P.C., Englewood, Colorado, for Plaintiff-Appellee, State Farm Mutual Auto

Insurance Company.

Before BRISCOE, Chief Judge, HOLLOWAY, and KELLY,

*

 Circuit Judges.

Appellate Case: 09-1415 Document: 01018483378 Date Filed: 08/24/2010 Page: 1 
2

BRISCOE, Chief Judge.

State Farm Mutual Automobile Insurance Company (“State Farm”) filed

this declaratory judgment action as a result of a claim for uninsured motorist

benefits filed by Barbara Fisher (“Ms. Fisher”). Ms. Fisher appeals the district

court’s grant of summary judgment to State Farm. Ms. Fisher also appeals the

district court’s grant of summary judgment to State Farm on a counterclaim which

she brought against State Farm alleging unreasonable delay or denial of an

insurance claim. We have jurisdiction pursuant to 28 U.S.C. § 1291, and

AFFIRM. 

I

On November 5, 2007, Tiffany Howard, a high school student in Colorado

Springs, Colorado, telephoned Jeremy Vialpondo and asked him to pick her up at

her residence because she was concerned about the conduct of her ex-boyfriend,

Andrew Brown. At the time, Vialpondo, Caleb Moore, and Robert Ellsworth

were passengers in a Ford Explorer being driven by Ms. Fisher’s son, Michael

Fisher (“Mr. Fisher”). 

Shortly after picking up Howard, Mr. Fisher and his passengers noticed that

they were being followed by a Chevrolet Suburban driven by Brown. After

Brown followed Mr. Fisher and his passengers for approximately two miles and

rammed his vehicle into theirs several times, Brown pulled next to the Explorer

Appellate Case: 09-1415 Document: 01018483378 Date Filed: 08/24/2010 Page: 2 
3

and fired a shotgun at it, striking Vialpondo. Moore was also struck by flying

glass as a result of the shotgun blast.

Mr. Fisher then pulled the Explorer to the side of the road, got out of the

vehicle, and attempted to obtain assistance for Vialpondo. Howard, Moore, and

Ellsworth also got out of the Explorer at this time. Meanwhile, Brown turned the

Suburban around and parked it behind the Explorer and perpendicular to the flow

of traffic. Brown then got out of the Suburban and within moments, shot and

killed Mr. Fisher, who was standing in the middle of the roadway. Brown then

chased Howard into a field next to the road where he began to physically assault

her. However, upon the arrival of law enforcement, Brown abandoned his assault

of Howard and returned to the Suburban where he obtained another firearm which

he used to shoot and kill himself.

Based on these events, Ms. Fisher, acting on behalf of Mr. Fisher’s estate,

filed an insurance claim with Geico Direct (“Geico”), the insurer of the Suburban

Brown had been driving. Geico declined coverage, citing an intentional acts

exclusion in the policy which covered the Suburban. Consequently, Ms. Fisher

filed an uninsured motorist (“UM”) claim with her own insurer, State Farm, with

whom she had a policy on the Explorer her son had been driving. Vialpondo and

his mother and next friend Lorrie Vasquez, as well as Moore and his mother and

next friend Stacey Moore, also submitted UM claims to State Farm, asserting that

Vialpondo and Moore were also covered by Ms. Fisher’s policy.

Appellate Case: 09-1415 Document: 01018483378 Date Filed: 08/24/2010 Page: 3 
4

After these claims were submitted, State Farm filed a declaratory judgment

action in the United States District Court for the District of Colorado seeking

declarations (1) that Mr. Fisher’s death, along with his passengers’ injuries, were

not caused by an accident that involved the operation and/or use of an uninsured

motor vehicle as defined by State Farm’s policy, and (2) that Ms. Fisher cannot

obtain the stacked limits of two State Farm policies potentially applicable to her

son’s death. In response, Ms. Fisher filed a counterclaim pursuant to Colo. Rev.

Stat. § 10-3-1116(1), alleging that State Farm unreasonably delayed or denied

payment of insurance benefits to which she is entitled, while Vialpondo and

Vasquez and the Moores filed counterclaims based upon a common law theory of

bad faith.

Ms. Fisher and State Farm resolved the stacking issue by stipulation, and

the parties subsequently filed a series of motions seeking summary judgment on

the remaining issues. As regards the district court’s rulings that are relevant to

this appeal, the court denied State Farm’s motion for summary judgment on the

issue of causation with respect to Vialpondo and Vasquez and the Moores, but

granted it with respect to Ms. Fisher, holding that Mr. Fisher’s death did not arise

out of the use of an uninsured motor vehicle. The district court also granted

summary judgment to State Farm on Ms. Fisher’s unreasonable delay or denial

counterclaim.

Ms. Fisher filed this timely appeal, challenging both of the district court’s

Appellate Case: 09-1415 Document: 01018483378 Date Filed: 08/24/2010 Page: 4 
5

grants of summary judgment. After hearing oral argument, we certified the

question of Ms. Fisher’s entitlement to UM benefits to the Colorado Supreme

Court pursuant to 10th Cir. R. 27.1 and Colo. App. R. 21.1. See State Farm Mut.

Auto. Ins. Co. v. Fisher, — F.3d —, 2010 WL 2382263 (10th Cir. June 14, 2010). 

The Colorado Supreme Court, however, issued an en banc order on June 26, 2010,

declining to answer.

II

 “We review the entry of summary judgment de novo.” Sewell v. Great N.

Ins. Co., 535 F.3d 1166, 1170 (10th Cir. 2008) (internal quotation marks omitted). 

In so doing, “[w]e view the evidence and make all reasonable inferences in the

light most favorable to the nonmoving party.” Id. (internal quotation marks

omitted). Summary judgment is only appropriate “if the pleadings, the discovery

and disclosure materials on file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is entitled to judgment as a

matter of law.” Fed R. Civ. P. 56(c)(2). 

As our jurisdiction in this case arises in diversity, the law of the forum

state, in this case Colorado, governs our analysis of the underlying claims. See

Reid v. Geico Gen. Ins. Co., 499 F.3d 1163, 1167 (10th Cir. 2007). Accordingly,

“we apply the law as set forth by [Colorado’s] highest court.” Long v. St. Paul

Fire & Marine Ins. Co., 589 F.3d 1075, 1081 (10th Cir. 2009). “The decisions of

lower [Colorado] courts, while persuasive, are not dispositive.” Id.

Appellate Case: 09-1415 Document: 01018483378 Date Filed: 08/24/2010 Page: 5 
1

 Ms. Fisher’s State Farm policy reads, in relevant part, as follows:

We [State Farm] will pay compensatory 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:

1. sustained by an insured; and

2. caused by an accident that involves the operation,

maintenance, or use of an uninsured motor vehicle as a

motor vehicle.

App. at 345 (emphasis removed).

6

DID MICHAEL FISHER’S DEATH ARISE OUT OF THE “USE” OF AN

UNINSURED MOTOR VEHICLE?

Pursuant to Colo. Rev. Stat. § 10-4-609(1)(a), automobile insurers in

Colorado are “require[d] . . . to provide coverage against uninsured motorists for

injuries ‘arising out of the ownership, maintenance or use of a motor vehicle,’

unless rejected in writing by the insured.” State Farm Mut. Auto. Ins. Co. v.

Kastner, 77 P.3d 1256, 1260 (Colo. 2003) (quoting Colo. Rev. Stat. § 10-4-

609(1)(a)). Accordingly, the Colorado Supreme Court has noted that all UM

policy provisions in Colorado automobile insurance contracts “are express

attempts to conform to statutory requirements,”1

 and thus, that the judicial

interpretation of such provisions “should reflect the overall legislative purpose of

the UM . . . statute[]” which is “to provide compensation for injury caused by an

uninsured motorist equal to that obtainable for injury caused by an insured

motorist.” See id. (internal quotation marks omitted).

Appellate Case: 09-1415 Document: 01018483378 Date Filed: 08/24/2010 Page: 6 
7

To this end, the Colorado Supreme Court, in Kastner, adopted a two-part

test to determine whether UM benefits are available under a Colorado automobile

insurance policy. To be entitled to benefits, a claimant must first demonstrate

that an uninsured motor vehicle was being “used” at the time he or she sustained

an injury. Id. at 1261. If so, “the next prong of the inquiry is whether the ‘use’ is

causally related to the . . . injury.” Id. at 1263. We address each of Kastner’s

two prongs in order.

1. “Use” of a Motor Vehicle

“As a threshold matter to recovery under [the UM] . . . provision[] of a

[Colorado motor vehicle insurance] policy, the claimant must show that at the

time of the ‘accident,’ the [uninsured] vehicle was being ‘used’ in a manner

contemplated by the policy in question.” Id. at 1261 (emphasis added) (internal

quotation marks and footnote omitted). And according to the Kastner court,

“unless articulated otherwise in the policy, the only use of a non-commercial

passenger vehicle that is foreseeable or conceivable at the time of contracting for

insurance is use as a means of transportation.” Id. at 1262. 

State Farm contends that this first prong of Kastner’s test is satisfied only if

the foreseeable use of the motor vehicle—in this case as a means of

transportation—occurs contemporaneously with the injurious conduct. 

Accordingly, State Farm argues that because Brown got out of the Suburban

before shooting Mr. Fisher, his death did not arise out of Brown’s use of the

Appellate Case: 09-1415 Document: 01018483378 Date Filed: 08/24/2010 Page: 7 
8

Suburban. Ms. Fisher counters that Kastner’s first prong does not require

contemporaneity so long as the events in question constitute one ongoing assault,

which she claims describe Brown’s actions.

In Kastner, a victim was abducted in a parking lot and transported in her

own car at knifepoint to a remote location where she was sexually assaulted while

she was still in the vehicle. See 77 P.3d at 1258-59. In addressing the question

of whether the victim was entitled to UM benefits, the Colorado Supreme Court

held that neither of the two prongs it announced earlier in its opinion had been

satisfied. In so doing, the court noted that the “[u]se of a car to get to an isolated

area to commit a crime may relate to a vehicle’s general transportation purpose,

but here it was not concurrent with the injury itself, and . . . it lacks the requisite

causal connection between sexual assault and ‘use’ of a car for transportation.” 

Id. at 1265 (emphasis added). This language might be fairly read to support State

Farm’s position in the case at bar because it suggests that the claim in Kastner

failed the first, or “use” prong because the assailant’s utilization of the vehicle as

a means of transportation was not contemporaneous with his assault upon the

woman he abducted.

That Kastner’s “use” prong requires contemporaneity is also supported by

the Kastner court’s discussion of Cung La v. State Farm Automobile Insurance

Co., 830 P.2d 1007, 1008 (Colo. 1992), a case which arose out of a coordinated,

multi-car drive-by shooting in which “three vehicles . . . took part in a maneuver

Appellate Case: 09-1415 Document: 01018483378 Date Filed: 08/24/2010 Page: 8 
9

that prevented [the victim] from changing the speed or direction of [his vehicle]

and enabled the assailant in one vehicle to shoot the [victim].” The Kastner court

approvingly noted that in reversing a grant of summary judgment to the insurer,

the Cung La court “assumed that the assailants . . . were ‘using’ their [uninsured]

cars as contemplated by the insured’s policy since the cars were moving at the

time of the shooting.” Kastner, 77 P.3d at 1265 (emphasis added). Moreover, this

interpretation of Kastner’s “use” prong is also supported by Justice Bender’s

dissent in Kastner, wherein he laments that “the majority requires that [the

victim’s] injuries be concurrent with [the] vehicle’s use.” Id. at 1267 (Bender, J.,

dissenting) (emphasis added). 

There is, however, some support for Ms. Fisher’s position as well. Perhaps

most significantly, one year before the Colorado Supreme Court issued its

decision in Kastner, the Colorado Court of Appeals issued its decision in Cole v.

United Services Automobile Ass’n, 68 P.3d 513, 515 (Colo. App. 2002), wherein

it held that so long as a claimant can demonstrate that the injury “originated in,”

“grew out of,” or “flowed from,” the use of an uninsured vehicle, “the fact that

the assailant left the uninsured vehicle before assaulting [the victim] does not

sever the casual connection between [the victim’s] injuries and the uninsured

vehicle.” While this is a discussion of causation, Kastner’s second prong, this

language obviously indicates that the Cole court would reject a bright line rule

requiring contemporaneity in connection with Kastner’s “use” prong.

Appellate Case: 09-1415 Document: 01018483378 Date Filed: 08/24/2010 Page: 9 
10

As this discussion indicates, there is some potential confusion regarding the

parameters of Kastner’s “use” prong. However, as we will discuss below, we

conclude here that Brown’s use of the Suburban is not sufficiently linked to the

cause of Mr. Fisher’s injuries as to satisfy Kastner’s second, or “causation”

prong. Thus, we need not resolve any potential confusion which relates to

Kastner’s first prong.

2. Causal Connection

Assuming, without deciding, that Kastner’s first prong is satisfied, we must

next determine whether Brown’s “use” of the Suburban was causally related to

Mr. Fisher’s death. See Kastner, 77 P.3d at 1263. The requisite causal

connection requires “something more than a mere ‘but for’ relation,” but

“something less than proximate cause in the tort sense.” Id. 

In a discussion that is relevant to whether the use of Brown’s vehicle was

causally related to Mr. Fisher’s death, the Kastner court observed that “to

complete and satisfy [this] analysis, the claimant must show . . . that no

independent significant act or non-use of the vehicle interrupted the ‘but for’

causal chain between the covered use of the vehicle and the injury,” and that

“[w]here the injury in question . . . is actually the result of an intentional act of

another, this showing can be particularly difficult to make.” Id. at 1264. The

Kastner court also cautioned, however, that “even [the] criminal act of another

will not automatically preclude recovery.” Id. 

Appellate Case: 09-1415 Document: 01018483378 Date Filed: 08/24/2010 Page: 10 
11

It appears clear under Colorado law that if an assailant’s injurious conduct

is predicated upon his or her presence in a moving vehicle, such as in a so-called

“drive by” shooting, the requisite causal nexus is present. See State Farm Mut.

Auto. Ins. Co. v. McMillan, 925 P.2d 785, 794 (Colo. 1996); Cung La, 830 P.2d

at 1011. If, however, the vehicle in which the assailant is traveling stops and the

assailant gets out of the vehicle before attacking his or her victim, the requisite

causal connection between the “use” of the vehicle and the attack becomes more

difficult to establish. 

In Cole, the Colorado Court of Appeals had occasion to address the issue of

causation in such a case. There, 

The uninsured vehicle . . . pulled . . . in front of [the victim’s] vehicle

and stopped suddenly. [The victim’s] vehicle stopped to avoid a

collision. The driver of the uninsured vehicle then backed his vehicle

into the front of [the victim’s] vehicle. Both drivers left their vehicles,

and an altercation ensued. A passenger in the uninsured vehicle went

to [the victim’s] vehicle, opened the passenger door, and assaulted [the

victim] with his fists and a wine bottle.

Cole, 68 P.3d at 514. The Colorado Court of Appeals held that UM benefits were

available because “as in Cung La and McMillan, the uninsured vehicle impeded

the progress of [the victim’s] vehicle and enabled the passenger of the uninsured

vehicle to get out and assault [the victim],” and thus, the uninsured vehicle “was

not used merely to transport the assailant to the scene of the assault.” Id. at 515. 

The facts of the instant case are, however, readily and meaningfully

distinguishable from those in Cole. Indeed, as State Farm noted in its response to

Appellate Case: 09-1415 Document: 01018483378 Date Filed: 08/24/2010 Page: 11 
12

Ms. Fisher’s motion for summary judgment, “Brown [did not use] his motor

vehicle to control the movement of Mr. Fisher, or anyone else.” Aplt. App., Vol.

2, at 580. Rather, Mr. Fisher’s pulling the Explorer over to the side of the road

was, at worst, caused by Brown’s use of the shotgun, and not his use of the

Suburban. And moreover, when Brown turned the Suburban around, he did not

position it in a manner which restricted the movement of either the Explorer’s

passengers, or the Explorer itself. The Suburban was not used by Brown to strike

Mr. Fisher, or as an instrumentality in assaulting Mr. Fisher.

Thus, Brown used the Suburban, in essence, as a means to transport himself

to the scene of his assault of Mr. Fisher. And, it is clear that such “use” is

insufficient to establish the causal nexus required by Kastner’s second prong. See

Kastner, 77 P.3d at 1266 (“[U]sing the car to drive the victim to a remote location

no more connects the car to the assault than if the assailant had used the car as the

mere situs of the assault without moving it.”). Accordingly, we conclude that the

district court did not err in granting summary judgment to State Farm with respect

to Ms. Fisher’s entitlement to UM benefits.

DID STATE FARM ACT UNREASONABLY?

Ms. Fisher also appeals the district court’s grant of summary judgment to

State Farm on the counterclaim which she brought pursuant to Colo. Rev. Stat. §

10-3-1116(1), a statute which permits an insurance claimant “whose claim for

payment of benefits has been unreasonably delayed or denied [to] bring an action

Appellate Case: 09-1415 Document: 01018483378 Date Filed: 08/24/2010 Page: 12 
13

. . . to recover reasonable attorney fees and court costs and two times the covered

benefit.” (emphasis added). Ms. Fisher contends that if “there exists a genuine

issue of material fact as to coverage, such facts when viewed in the light most

favorable to [her] create a genuine issue of material fact as to whether State

Farm’s conduct in delaying and denying [her] claim was unreasonable.” Aplt. Br.

at 27. Ms. Fisher’s position is, however, untenable. 

The Colorado Court of Appeals has held that “[i]t is reasonable for an

insurer to challenge claims that are fairly debatable.” Pham v. State Farm Mut.

Auto. Ins. Co., 70 P.3d 567, 572 (Colo. App. 2003) (emphasis added). And, as

our previous discussion clearly indicates, the parameters of UM coverage in

Colorado are “fairly debatable.” State Farm’s decision to file a declaratory

judgment action was, therefore, not unreasonable. Accordingly, we conclude that

the district court properly granted summary judgment to State Farm on Ms.

Fisher’s counterclaim.

III

The judgment of the district court is AFFIRMED.

Appellate Case: 09-1415 Document: 01018483378 Date Filed: 08/24/2010 Page: 13