                                          No. 01-887

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2002 MT 196


STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY,

              Plaintiff and Respondent,

         v.

FARREL FERRIN, individually and as
parent and guardian of ALAN FERRIN, a minor,

              Defendant and Appellant.



APPEAL FROM:         District Court of the First Judicial District,
                     In and For the County of Lewis and Clark,
                     Honorable Jeffrey M. Sherlock, Judge Presiding


COUNSEL OF RECORD:

              For Appellant:

                     Ward E. Taleff, Alexander, Baucus, Taleff, Paul & Young, PLLC,
                     Great Falls, Montana

              For Respondent:

                     Lyman H. Bennett III, Attorney at Law, Bozeman, Montana



                                                  Submitted on Briefs: April 4, 2002

                                                             Decided: September 5, 2002

Filed:

                     __________________________________________
                                       Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1    Farrel Ferrin, individually and as parent and guardian of his

son, Alan Ferrin, appeals from the First Judicial District Court’s

denial of his motion for summary judgment and its grant of summary

judgment to State Farm Mutual Automobile Insurance Company.                         We

affirm.

¶2    The following issue is raised on appeal:

¶3    Did the District Court err in concluding that Alan Ferrin’s

personal injuries were not caused by an accident resulting from the

use of Carl Wajahuski’s insured motor vehicle?
                     FACTUAL AND PROCEDURAL BACKGROUND

¶4    The essential facts of this case are undisputed.                        In 1995,

Farrel Ferrin (Ferrin)              discussed purchasing Carl Wajahuski’s

(Wajahuski) .30/.30 caliber rifle for his son Alan Ferrin (Alan).

At the time, Alan was 12 years old.                  As part of the purchasing

process, the Ferrins and Wajahuski arranged a hunting trip so that

Alan could hunt deer with the rifle.                  On October 22, 1995, the

Ferrins     drove    from    their     residence      in   Helena,      Montana,    to

Wajahuski’s mother’s residence in Townsend, Montana.                          Upon the

Ferrins’ arrival, Wajahuski informed them that he had arranged a

hunt on private land near Harlowton, Montana, and that they would

travel together in Wajahuski’s vehicle from Harlowton to the

hunting site.       Wajahuski owned a 1990 Ford Nissan pickup truck that

was insured by State Farm Mutual Insurance Company (State Farm).

¶5    Wajahuski      drove    his    truck     to   Harlowton     and   the    Ferrins

traveled in their own vehicle.                 When Wajahuski and the Ferrins


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arrived in Harlowton, the Ferrins parked their vehicle and the

parties rode together in Wajahuski’s truck.    Upon arriving at the

property where they intended to hunt, they drove around in search

of deer.   Wajahuski eventually spotted some deer below a ridge, and

he instructed the Ferrins to exit the truck and walk downhill while

he and his mother circled behind in his truck in order to help load

any deer that were shot or to pick up the Ferrins if they were

unsuccessful.   The deer were approximately 200 to 250 yards from

the truck.
¶6   Alan carried Wajahuski’s .30/.30 rifle.    At the time, it was

loaded with some ammunition that Wajahuski had personally reloaded

and some factory-loaded ammunition.    After walking about 25 to 50

yards, Alan raised the rifle and fired.   He missed his first shot,

and he ejected the shell and loaded another cartridge.      As Alan

fired a second shot, the rifle exploded and nearly severed one of

his hands.   Ferrin shouted for help and Wajahuski returned.    The

men loaded Alan into Wajahuski’s vehicle and drove him to a

hospital in Harlowton.   Alan was subsequently flown by helicopter

to Billings, Montana, for further treatment.

¶7   On December 14, 1999, Ferrin, individually and as parent and

guardian of Alan, filed a complaint in the Eighth Judicial District

Court, Cascade County, alleging that Wajahuski was liable for

Alan’s injuries because he had negligently reloaded the round of

ammunition which caused the rifle to explode in Alan’s hands.

¶8   On March 27, 2000, State Farm filed a declaratory judgment

action in the First Judicial District Court.      It contended that



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there was a controversy over whether its automobile insurance

contract with Wajahuski provided liability coverage with respect to

any claims for bodily injury asserted by Ferrin.     Both State Farm

and Ferrin filed motions for summary judgment on the issue of

whether Alan’s injuries were caused by an accident resulting from

the use of Wajahuski’s truck.

¶9     The District Court held that they were not, and it denied

Ferrin’s motion for summary judgment and granted State Farm’s

motion.    Ferrin appeals.
                         STANDARD OF REVIEW

¶10    Our standard of review in appeals from summary judgment

rulings is de novo, and we apply the same Rule 56, M.R.Civ.P.,

criteria as the district court.   Wendell v. State Farm Mutual Auto.

Ins. Co., 1999 MT 17, ¶ 9, 293 Mont. 140, ¶ 9, 974 P.2d 623, ¶ 9

(citation omitted).    Pursuant to Rule 56(c), M.R.Civ.P., summary

judgement is appropriate if there are no genuine issues of material

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

law.

¶11    The interpretation of an insurance contract is a question of

law.    Pablo v. Moore, 2000 MT 48, ¶ 12, 298 Mont. 393, ¶ 12, 995

P.2d 460, ¶12 (citation omitted).     This Court reviews a conclusion

of law to determine whether it is correct.     Pablo, ¶ 12 (citation

omitted).

                             DISCUSSION




                                  4
¶12   Did the District Court err in concluding that Alan Ferrin’s

personal injuries were not caused by an accident resulting from the

use of Carl Wajahuski’s insured motor vehicle?

¶13   The   insurance   policy   issued   to   Wajahuski   by   State   Farm

included the following provision:




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      We will:
      1) Pay damages, including punitive or exemplary damages,
      which an insured becomes legally liable to pay because
      of:
      A. Bodily injury to others; and
      B. Damage to or destruction of property including loss of use
           Caused by accident resulting from the ownership,
      maintenance, or use of your car; . . .

¶14   In Wendell, an uninsured motorist case, we concluded that the

phrase “arising out of the use” is ambiguous, and we adopted an

expansive, fact-intensive test to determine whether injuries “arise

out of the use” of an uninsured vehicle.                 We held that, for

purposes of uninsured motorist coverage, an insured’s injuries

“arise out of the use” of an uninsured vehicle if the injuries

originate from, or grow out of, or flow from the use of the

uninsured vehicle.   Wendell, ¶ 54.           The parties and the District

Court applied the Wendell test in this case even though it is not

an uninsured motorist case and even though a different insurance

contract phrase is at issue:    whether injuries were caused by an

accident “resulting from the use” of a vehicle.
¶15   We conclude that the Wendell test is applicable here.            First,

from the viewpoint of a consumer with average intelligence but not

trained in the law or insurance business, the phrase “resulting

from the use” is equally as ambiguous as the phrase “arising out of

the use” which we considered in Wendell.            Like the phrase “arising

out of the use,” the phrase “resulting from the use” is reasonably

subject to more than one interpretation.            See Wendell, ¶ 53.

¶16   In interpreting an ambiguous phrase, we are guided by general

principles   regarding   contract       law    as    applied   to   insurance

contracts.   Pablo, ¶ 17.   If the terms of an insurance policy are


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ambiguous, obscure, or open to different constructions, we construe

the terms in a light most favorable to the insured or other

beneficiary, particularly if an ambiguous provision attempts to

preclude the insurer’s liability.              Pablo, ¶ 17.

¶17   While   we   considered      the   remedial       purposes     of    uninsured

motorist coverage in formulating the Wendell test, we conclude that

the test need not be confined to cases involving only uninsured

motorist    coverage.     The    principles       of    construction       governing

ambiguous insurance contract terms and phrases remain the same

whether the case involves an insured motorist or an uninsured

motorist.
¶18   Indeed, our Wendell decision cited other jurisdictions which

have recognized that the reasoning with respect to uninsured

motorist claims applies as well to other clauses in an insurance

policy.    In Wendell, we adopted the test set forth in Insurance Co.

of N. America v. Dorris (Ga. App. 1982), 288 S.E.2d 856.                         See

Wendell, ¶ 54.     In Dorris, the Georgia Court of Appeals adopted the

“originate from, or grow out of, or flow from” test from a case

involving     personal    injury     protection         coverage–not       uninsured

motorist    coverage.      See   Dorris,       288     S.E.2d   at   858    (quoting

Southeastern Fidelity Ins. Co. v. Stevens (Ga. App. 1977), 236

S.E.2d 550, 551).        The Dorris court reasoned that although the

Stevens case involved personal injury protection coverage, its

holding regarding the sufficiency of a causal connection between an

injury and use of a vehicle was “nonetheless relevant for purposes

of contractual interpretation.”              Dorris, 288 S.E.2d at 858.



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¶19   Additionally, in Wendell we discussed with approval General

Accident Ins. Co. of America v. Olivier (R.I. 1990), 574 A.2d 1240.

 Wendell, ¶¶ 43-44.    In Olivier, an uninsured motorist case, the

Rhode Island Supreme Court concluded that the reasoning behind

affording a broader meaning to the phrase “arise out of the use”

would   likewise   apply   to   the   medical-payments   portion   of   the

insurance policy at issue.       Olivier, 574 A.2d at 1243.

¶20   Accordingly, we hold that the expansive, fact-intensive test

that we adopted in Wendell to determine whether injuries “arise out

of the use” of an uninsured vehicle is also applicable to determine

whether bodily injury was caused by an accident “resulting from the

use” of an insured vehicle.
¶21   Ferrin contends that Alan’s personal injuries were caused by

an accident resulting from the use of Wajahuski’s vehicle as set

forth in Wajahuski’s insurance policy and that State Farm is thus

liable for the damages Alan suffered.          He argues that the word

“use” as well as the phrase “resulting from the use,” are ambiguous

and must be construed, under Montana law, against the insurer and

in favor of the insured.        Citing Georgeson v. Fidelity & Guaranty

Ins. Co. (D. Mont. 1998), 48 F.Supp.2d 1262, and Fire Ins. Exchange

v. Tibi (D. Mont. 1995), 51 F.Supp.2d 1065, Ferrin claims that

because the use of Wajahuski’s vehicle was integrally related to

Alan’s activities and injuries at the time of the accident, Alan’s

injuries originated in, grew out of, or flowed from the use of

Wajahuski’s vehicle.




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¶22   In Tibi, a rifle discharged inside a vehicle used for a guided

antelope hunt when Tibi moved his personal belongings from the

front seat of the vehicle to the back seat.      Tibi, 51 F.Supp.2d at

1068-69.   A hunt participant standing outside near the vehicle was

shot and injured.    Tibi, 51 F.Supp.2d at 1069.     Tibi’s insurance

company filed a declaratory action alleging that its policy did not

provide coverage to Tibi for the incident because the injuries

sustained did not arise out of the use, loading or unloading of an

insured vehicle.    Tibi, 51 F.Supp.2d at 1070.     A Montana federal

district court concluded that it was reasonable and foreseeable

that weapons and other hunting gear would be placed in and moved

during the course of a hunting trip.      Because the injury occurred

while a firearm and/or hunting gear were relocated in the vehicle

so that Tibi could sit in the vehicle for the trip home, the court

held that the requisite causal connection existed between the

accident and the use of the vehicle.      Tibi, 51 F.Supp.2d at 1073.
¶23   In Georgeson, a telecommunications employee was killed in a

fall from a utility pole while stringing cable, one end of which

was attached to a spool resting on a company truck’s trailer.

Georgeson, 48 F.Supp.2d at 1263.       Again, a question existed as to

whether the accident was caused by the use of the uninsured

vehicle.   Georgeson, 48 F.Supp.2d at 1265.         A Montana federal

district court held that because the company truck was used to

transport cable to work sites and was used to raise and tension the

cable as it was hung on utility poles, a causal connection existed




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between the underlying accident and Georgeson’s use of the company

truck and trailer.        Georgeson, 48 F.Supp.2d at 1267-68.

¶24    State Farm contends that Alan’s personal injuries were not

caused by an accident resulting from the use of Carl Wajahuski’s

insured motor vehicle.       State Farm argues that although the Wendell

test   is     expansive   and   fact-intensive,    it    requires    that   the

connection between the use of the vehicle and the injury sustained

be more than “remote or tenuous.”             State Farm maintains that to

conclude that Alan’s injuries resulted from the use of Wajahuski’s

vehicle “would be to determine that liability coverage exists in

any accident situation with the slightest connection to a vehicle.”
¶25    The District Court agreed and concluded that Alan’s personal

injuries were not caused by an accident resulting from the use of

Carl Wajahuski’s insured motor vehicle.            The court reasoned that

while it might have been reasonable and foreseeable that the rifle

Alan was using would be placed in and moved about the vehicle as in

Tibi, it was neither reasonable nor foreseeable that the firearm

would contain allegedly negligently reloaded ammunition which would

cause the gun to explode and injure Alan after he exited the

vehicle and was 25-50 yards away from the vehicle when he fired the

gun.     We    hold   that   the   District    Court    reached   the   correct

conclusion when it determined that this was not the type of

accident which could reasonably be expected to occur as the result

of using a vehicle for purposes of a hunting trip.                Likewise, we

hold that the District Court properly concluded that although the

hunting party used Wajahuski’s vehicle as part of their hunting



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trip, the use of the truck was not integrally related to the

incidents surrounding the accident as was the vehicle in Georgeson.

¶26     The other cases Ferrin cites are also inapposite.          In each of

them, the accidents in question would not have occurred without the

use of the vehicle.          Aetna Casualty & Surety Co. v. McMichael

(Colo. 1995), 906 P.2d 92 (underinsured motorist coverage applied

when employee’s injuries arose out of his use of the company truck

as a barricade and warning device); Union Mutual Fire Ins. Co. v.

Commercial Union Ins. Co. (Me. 1987), 521 A.2d 308 (insurer liable

for injuries incurred when removing loaded shotgun from automobile

on hunting trip); Commercial Casualty Ins. Co. v. Tri-State Transit

Co. of Louisiana (Miss. 1941), 1 So.2d 221 (insurer required to

defend suit for death of bus passenger resulting from pneumonia

allegedly contracted when bus broke down and passenger forced to

walk in inclement weather); State ex rel. Butte Brewing Co. v.

District Court (1940), 110 Mont. 250, 100 P.2d 932 (insurance

policy covering the loading and unloading of an automobile covered

injuries incurred during unloading of beer truck).
¶27     Here, on the other hand, the accident with the rifle could

have occurred without the use of Wajahuski’s vehicle.                As such,

this is more akin to the circumstances of Farmers Union Mutual Ins.

Co. v. Blair (1991), 250 Mont. 52, 817 P.2d 1156.                 In Blair, a

passenger removed a loaded revolver from a friend’s car, went into

the   house   and,   while    removing    the   revolver   from   his   pants,

accidentally shot another man.       Blair, 250 Mont. at 53, 817 P.2d at

1157.    The district court held that since the shooting accident



                                     11
occurred inside a house during a party after the passenger had left

the car, the accident did not arise from the use of the vehicle.

Blair, 250 Mont. at 56-57, 817 P.2d at 1159.

¶28   Here, as in Blair, the accident could have occurred in any

location, regardless of where the rifle was stored or how the

hunters reached their destination.     The fact that the   truck was

used to transport the hunters and assist in the hunt simply

provides no connection between the use of the truck and the

explosion of the rifle.     Had Alan walked to the hunt carrying the

rifle or engaged in target practice in his backyard, the rifle

still would have exploded.
¶29   We hold that the District Court did not err in concluding that

Alan Ferrin’s personal injuries were not caused by an accident

resulting from the use of Carl Wajahuski’s insured motor vehicle.

Accordingly, State Farm was entitled to summary judgment as a

matter of law.

¶30   Affirmed.



                                           /S/ W. WILLIAM LEAPHART

We concur:

/S/   KARLA M. GRAY
/S/   PATRICIA COTTER
/S/   JIM REGNIER
/S/   TERRY N. TRIEWEILER




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