                                            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.




                              O R D E R



     The Court amends its opinion filed October 29, 1996, as fol-

lows:

     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 Vir-
ginia that Huston's damages arose out of the use of an uninsured auto-
mobile. Diversity jurisdiction existed under 28 U.S.C. § 1332. On
cross-motions for summary judgment, the district court denied Hus-
ton'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 automo-
bile 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 permis-
sion, the vehicle was an uninsured motor vehicle at the time of the carjack-
ing 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 pro-
visions 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.

                    3
