                                            PUBLISH

                          UNITED STATES COURT OF APPEALS
Filed 6/18/96
                                      TENTH CIRCUIT
                                  ________________________

STATE FARM MUTUAL AUTOMOBILE INSURANCE )
COMPANY, an Illinois corporation,                        )
                                                         )
       Plaintiff-Appellee,                               )
                                                         )
v.                                                       )  No. 95-2087
                                                         )
EDMOND BLYSTRA; BARBARA BLYSTRA,                         )
individually and as parent and natural guardian of KEVIN )
BLYSTRA, a minor,                                        )
                                                         )
       Defendants and Third-Party Plaintiff-Appellants, )
                                                         )
v.                                                       )
                                                         )
FARMERS INSURANCE COMPANY OF ARIZONA,                    )
                                                         )
       Third-Party Defendant-Appellee.                   )
                                 __________________________

             ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF NEW MEXICO
                         (D.C. No. CIV-94-1030-JP/WWD)
                           _________________________

Thomas L. Grisham of Grisham & Lawless, P.A., Albuquerque, New Mexico, for Appellants.

James E. Lieuwen of Pelton & O'Brien, P.A., Albuquerque, New Mexico, for Farmers Insurance
Company of Arizona, and Rudolph Lucero (Terri L.Sauer with him on the brief) of Miller, Stratvert,
Torgerson & Schlenker, P.A., Albuquerque, New Mexico, for State Farm Mutual Automobile
Insurance Company.
                              _________________________

Before BRORBY, BARRETT and LIVELY,* Circuit Judges.


       *
           The Honorable Pierce Lively, United States Circuit Judge for the Sixth Circuit, sitting by
designation.
BRORBY, Circuit Judge.
                                  _________________________


                             I. Factual & Procedural Background

       As Kevin Blystra was walking home from school, either the passenger or driver of a white

pickup truck shot him in the leg with a pellet gun as the truck drove by. Neither the driver nor the

passenger of the truck have been identified. At the time of the incident, Kevin was sixteen years old

and lived with his parents, Edmond and Barbara Blystra. The Blystras have incurred substantial

medical expenses as a result of the shooting.



       At the time of the shooting, Edmond Blystra had two automobile insurance policies issued

by State Farm Mutual Automobile Insurance Company ("State Farm") and three automobile

insurance policies issued by Farmers Insurance Company of Arizona ("Farmers"). Kevin qualified

as an insured under the State Farm and Farmers policies. Each of the policies included uninsured

motorist coverage and medical payments coverage. The State Farm policies provided uninsured

motorist coverage pursuant to the following language:

       We will pay damages for bodily injury or property damage an insured is legally
       entitled to collect from the owner or driver of an uninsured motor vehicle. The
       bodily injury or property damage must be caused by accident arising out of the
       ownership, maintenance or use of an uninsured motor vehicle.

(Emphasis omitted.)


       The uninsured motorist provision of the Farmers policies read as follows:

       We will pay all sums which an insured person is legally entitled to recover as
       damages from the owner or operator of an uninsured motor vehicle because of:


                                                 2
                   (a)       bodily injury sustained by the insured person. The
                             bodily injury must be caused by accident and arise out
                             of the ownership, maintenance or use of the uninsured
                             motor vehicle.

                   (b)       Property damage.

(Emphasis omitted.)


         The State Farm policies did not define the term "accident." The Farmers policies defined

"accident" as "a sudden event, including continuous or repeated exposure to the same conditions,

resulting in bodily injury or property damage neither expected nor intended by the insured person."

(Emphasis omitted.) Both the State Farm and Farmers policies included "hit-and-run" incidents

within their uninsured motorist coverage provisions.



         With respect to medical payments coverage, both the State Farm and Farmers policies

required that the insured sustain bodily injury "through being struck by[] a motor vehicle or trailer."



         Following the shooting, the Blystras filed claims with State Farm seeking coverage under the

uninsured motorist and medical payments provisions of the State Farm policies. At the Blystras'

request, State Farm filed a complaint in the district court seeking declaratory relief with respect to

its liability for uninsured motorist and medicial payments coverage. The Blystras filed an answer

asserting coverage was appropriate and counter-claimed against State Farm, claiming State Farm

denied coverage in bad faith.2 The Blystras also filed a third-party complaint for declaratory relief


         2
            The district court ultimately dismissed the Blystra ' bad faith claim with prejudice, but that claim is not before
this court on appeal.


                                                              3
against Farmers, claiming Farmers was liable for uninsured motorist and medical payments benefits.

Farmers filed an answer denying the Blystras were entitled to any benefits. The Blystras filed

motions for summary judgment against State Farm and Farmers, and the insurance companies filed

cross-motions for summary judgment against the Blystras.



       The district court granted State Farm's and Farmers' motions for summary judgment against

the Blystras. According to the district court:

       neither the uninsured motorists nor the medical payments provisions of the State
       Farm or Farmers policies cover Kevin Blystra's injuries which resulted from a drive-
       by shooting. Kevin Blystra was the victim of a crime, not an accident. A drive-by
       shooting was not a risk the parties reasonably contemplated as insurable.


       The Blystras filed a motion for reconsideration, which the district court denied. The Blystras

appealed to this court. We exercise jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse

in part, and remand for further proceedings.



                           II. Standard of Review & Applicable Law

       We review de novo the grant or denial of a motion for summary judgment, applying the same

legal standard used by the district court pursuant to Fed. R. Civ. P. 56(c). Reich v. Stangl, 73 F.3d

1027, 1029 (10th Cir. 1996), petition for cert. filed, No. 95-1631, 64 USLW 3709 (Apr. 9, 1996).

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c). "'When applying this standard, we examine the factual record and reasonable inferences in


                                                  4
the light most favorable to the party opposing summary judgment.' If there is no genuine issue of

material fact in dispute, then we next determine if the substantive law was correctly applied by the

district court." Wolf v. Prudential Ins. Co. of Amer., 50 F.3d 793, 796 (10th Cir. 1995) (quoting

Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990)).



       The district court's jurisdiction over this case was based on diversity of citizenship. 28

U.S.C. § 1332. A federal court sitting in diversity applies the substantive laws of the forum state.

Barrett v. Tallon, 30 F.3d 1296, 1300 (10th Cir. 1994). We review de novo the district court's

determinations of state law. Salve Regina College v. Russell, 499 U.S. 225, 231 (1991). Because

New Mexico is the forum state in this dispute, "we must apply the most recent statement of state

law by the" New Mexico Supreme Court. Wood v. Eli Lilly & Co., 38 F.3d 510, 513 (10th Cir.1994).



                                           III. Analysis

       We are faced with four issues, each of which derives from the language of the State Farm and

Farmers policies. Though the uninsured motorist coverage language differs slightly between the

State Farm and Farmers policies, both of the companies' policies share three essential elements that

are relevant to this case. First, Kevin Blystra's injuries must have been "caused by" an "accident."

Second, Kevin's injuries must have "aris[en] out of the ownership, maintenance, or use of" the

uninsured motor vehicle. Third, Kevin must have been legally entitled to recover damages for his

injuries from the owner or operator of the uninsured motor vehicle. With respect to the medical

payments coverage, the State Farm and Farmers policies do not provide coverage unless Kevin

sustained his injuries "through being struck by" a "motor vehicle or trailer." We begin our analysis


                                                  5
with the three issues implicated by the uninsured motorist coverage provisions.



A. Uninsured Motorist Coverage

       1. Caused by an Accident

       Because the district court granted State Farm's and Farmers' motions for summary judgment

after concluding Kevin Blystra's injuries were not caused by an "accident," we start with this issue.

In the time since the district court entered its final judgment in this case, the New Mexico Supreme

Court decided Britt v. Phoenix Indem. Ins. Co., 907 P.2d 994 (N.M. 1995). In Britt, a case similar

to the one at bar in several respects, the New Mexico Supreme Court was asked to decide "whether

uninsured motorist coverage extends to a victim of an intentional tort perpetrated by a passenger in

an uninsured motor vehicle." Id. at 995. On the issue of whether the intentional tort was an

"accident," the court adopted the following rule:

       [I]n analyzing whether a particular incident is an "accident" for purposes of uninsured
       motorist coverage, the courts should view the incident from the injured party's
       perspective. Thus if the event causing the injury is unintended and unexpected from
       the injured party's viewpoint, the injury is deemed to have occurred as a result of an
       accident.


Id. at 997. Based on the adoption of this rule, the court concluded that injuries caused by an

intentional stabbing "arose out of an 'accident' as that term is used in the uninsured motorist

endorsements." Id.



       State Farm and Farmers conceded in oral argument that the Britt decision requires us to

conclude the district court applied the wrong rule of law when it decided Kevin Blystra's injuries



                                                    6
were not caused by an "accident." See Wood, 38 F.3d at 513 (in diversity case we must apply the

most recent statement of state law by the forum state's highest court). As Britt makes clear, an injury

is caused by an "accident" in New Mexico for purposes of uninsured motorist coverage "if the event

causing the injury is unintended and unexpected from the injured party's viewpoint." Britt, 907 P.2d

at 997. Given this standard, the district court erroneously concluded that an intentional criminal act

cannot be an "accident."



       In his affidavit filed in support of the Blystras' motion for summary judgment, Kevin Blystra

stated, "I do not know why I was shot, whether or not the shot was intended for me or who fired the

shot. I may have been mistaken for someone else or the shots may have been randomly fired and hit

me by accident." In our view, this statement establishes Kevin neither intended nor expected to be

shot. Given that State Farm and Farmers proffered no affidavits or other documents contemplated

by Fed. R. Civ. P. 56(e) creating a genuine dispute as to whether Kevin intended or expected to be

shot, we conclude Kevin Blystra's injuries were caused by an "accident" within the meaning of the

uninsured motorist provisions of the State Farm and Farmers policies. State Farm and Farmers

contend a genuine issue of fact exists as to whether Kevin Blystra intended or expected to be shot.

In support of this contention, they suggest he may have somehow provoked his assailant. We have

seen no evidence in the record that supports this contention. We take no view on whether someone

who provokes an attacker expects or intends to be shot.



       2. Ownership, Maintenance, or Use

       As we move to the next issue, Britt again offers us guidance. In Britt, the New Mexico


                                                  7
Supreme Court adopted a three-part test, borrowed from Continental W. Ins. Co. v. Klug, 415

N.W.2d 876, 878 (Minn. 1987), for determining whether an insured's injuries arose out of the

ownership, maintenance, or use of an uninsured vehicle. Britt, 907 P.2d at 999. First, we must

consider "whether there [wa]s a sufficient causal nexus between the use of the uninsured vehicle and

the resulting harm." Id. To satisfy this standard, the vehicle must have been "an 'active accessory'

in causing the injury." Id. (quoting Klug, 415 N.W.2d at 878). Second, we must "consider whether

an act of independent significance broke the causal link between the use of the vehicle and the harm

suffered." Id. at 1000 (citing Klug, 415 N.W.2d at 878). Finally, we must "consider whether the 'use'

to which the vehicle was put was a normal use of that vehicle. For example, transportation would

be a normal use, whereas use of a parked car for a gun rest would not be." Id (citing Klug, 415

N.W.2d at 878).



        The undisputed facts of the instant case reveal that either the passenger or driver of a pick-up

truck shot Kevin Blystra as the truck drove by him. We begin our analysis with Britt's third prong,

because it is the least disputed aspect of the necessary analysis. In fact, neither State Farm nor

Farmers contend in their briefs that this prong is not satisfied. Under Britt's third prong, we must

determine whether the use of the truck during the shooting was a "normal use" of the vehicle. Id.

At the time of the shooting, the assailant was utilizing the truck as transportation; i.e., he was using

the truck as a means "[t]o convey [himself] from one place to another." Webster's II New Riverside

University Dictionary 1228 (1984) (defining "transport"). Clearly, such use falls within Britt's

"normal use" requirement. Britt, 907 P.2d at 1000 ("transportation would be normal use"); see Klug,

415 N.W.2d at 878-79 (concluding that a motorist who shot another motorist from his moving car


                                                   8
"was using his car for motoring purposes" during the assault) (cited with approval in Britt, 907 P.2d

at 1000).



       We now focus on the two remaining issues: whether there was a sufficient causal nexus

between the use of the truck for transportation and Kevin Blystra's injuries and, assuming a sufficient

causal nexus did exist, whether an act of independent significance broke the causal link. See Britt,

907 P.2d at 999-1000. For a there to be a "sufficient causal nexus between the use of the uninsured

vehicle and the resulting harm," the vehicle must have been "an active accessory in causing the

injury." Id. at 999 (internal quotation marks and citations omitted). When an automobile is used by

an assailant to undertake a drive-by shooting, the automobile is almost by definition an "active

accessory" to the assault. Through the use of an automobile, a drive-by shooter achieves several

advantages in the commission of his crime that would otherwise be unavailable to him. First, the

assailant can use the vehicle to unsuspiciously and quickly approach his victim, all the while hiding

from public observation that he is armed with a gun. Second, during the commission of the assault,

the assailant can use the vehicle to help hide his identity. Third, the assailant can use the vehicle to

leave the scene quickly and avoid apprehension. In his affidavit in support of the Blystras' motion

for summary judgment, Kevin Blystra stated: "The automobile was used to approach me head on.

The shot was fired from the moving vehicle and the vehicle was then used to escape the scene."

Under these circumstances, we conclude the white truck that transported the assailant who shot

Kevin Blystra was an "active accessory" to Kevin's assault. See Cung La v. State Farm Auto. Ins.

Co., 830 P.2d 1007, 1011 (Colo. 1992) ("it is sufficient that the claimants demonstrate that the injury

originated in, grew out of, or flowed from a use of a vehicle") (internal quotation marks and citations


                                                   9
omitted) (cited with approval in Britt, 907 P.2d at 999); Klug, 415 N.W.2d at 877-78 (assailant's car

was "active accessory" to shooting when assailant used the car to pull alongside victim's car as the

two were driving down the highway). Because the truck was an "active accessory," there was a

"sufficient causal nexus" between its use and Kevin Blystra's injuries. Britt, 907 P.2d at 999.



       Finally, we ask "whether an act of independent significance broke the causal link between

the use of the" assailant's truck and Kevin Blystra's injuries. Id. State Farm and Farmers contend

the intentional shooting of Kevin broke the causal link between the assailant's use of the car and

Kevin's injuries. In support of this contention, State Farm and Farmers point us to cases relied on

by the New Mexico Supreme Court in Britt for its holding that an act of "independent significance"

can break the necessary causal nexus. To be sure, in Britt the court relied on decisions that recognize

the causal link between the use of the vehicle and the victim's injuries may be broken by an

intervening intentional tort. See id. at 1000 (citing Klug, 415 N.W.2d at 878; Kish v. Central Nat'l

Ins. Group of Omaha, 424 N.E.2d 288, 294 (Ohio 1981); United Servs. Auto. Ass'n v. Ledger, 234

Cal. Rptr. 570, 572 (Cal. Ct. App. 1987)). All of these cases, however, share an additional element

as support for their reasoning--an element we view as crucial to understanding their holdings. Given

that Klug is relied on so heavily by the New Mexico Supreme Court in Britt, see Britt, 907 P.2d at

999-1000, we find it the most instructive.



       In Klug, the victim was driving home from work on the highway when his assailant pulled

alongside him and shot Klug in the arm with a shotgun. Klug ultimately escaped his assailant and

received assistance. Klug, 415 N.W.2d at 877. After concluding a sufficient causal nexus existed


                                                  10
between Klug's injuries and the assailant's use of his automobile, the court examined whether "an

act of independent significance occurred to break the causal link." Id. at 878. The court concluded

the causal link had not been broken. The court reasoned that the assailant's "actions of driving and

shooting were inextricably linked. Had [the assailant] used his vehicle to drive ahead of Klug, left

his vehicle, and shot Klug from the side of the road, we might have found an intervening act." Id.

In Klug, the Supreme Court of Minnesota drew on another of its decisions to explain its approach

to the intervening act of independent significance:

       In Holm [v. Mutual Service Casualty Ins. Co., 261 N.W.2d 598, 603 (Minn. 1977)],
       we found an act of independent significance where a police officer, after pursuing a
       motorcycle, left his vehicle to make an arrest and committed a battery upon the
       motorcyclist. We stated, "[the officer] had completely left the vehicle before he
       administered the tortious battery. The police car served only to transport him to the
       scene of the incident. The battery could as easily have occurred had [the officer]
       come upon the stationary motorcycle on foot."

Klug, 415 N.W.2d at 878.


       As Klug indicates, an intentional tort alone does not constitute an act of independent

significance sufficient to break the causal link between an assailant's use of his vehicle and the

victim's injuries. It is at least equally important that the assailant do something to disassociate the

intentional tort from his otherwise normal use of the vehicle. As Klug and Holm make clear, this

might occur if the assailant stops his vehicle and commits the tort after leaving the vehicle. In such

a case, the vehicle serves merely to transport the assailant to the scene of the crime and therefore is

not an active accessory to the resulting injuries. See Klug, 415 N.W.2d at 878 (quoting Holm, 261

N.W.2d at 603).




                                                  11
        Given Britt's heavy reliance on Klug, we are convinced the Supreme Court of New Mexico

intended to adopt Klug's requirement that an intentional tort does not break the causal nexus between

an assailant's use of his vehicle and the victim's injuries unless the assailant does something to

disassociate his use of the vehicle from the commission of the tort. The other decisions cited by the

court in Britt as support for its adoption of the act-of-independent-significance inquiry confirm our

reading of Britt. In Kish, the Supreme Court of Ohio concluded no causal link existed in the case

where the assailant emerged from his stopped vehicle in a traffic dispute and fatally shot the other

driver, who had also gotten out of his vehicle. Kish, 424 N.E.2d at 289, 294. The court explained:

        The relevant inquiry is whether the chain of events resulting in the accident was
        unbroken by the intervention of any event unrelated to the use of the vehicle. The
        application of this standard to the instant facts leads us to conclude that the
        intentional, criminal act of the murderer was an intervening cause of injury unrelated
        to the use of the vehicle. As the court below stated, "the death resulted from an act
        wholly disassociated from the and independent of the use of the vehicle as such."

Id. at 294 (cited in Britt, 907 P.2d at 1000) (emphasis added).



        Ledger, the third case cited in Britt as support for its act-of-independent-significance inquiry,

suggests the same analysis as Klug and Kish. In Ledger, two men were involved in a minor traffic

incident. The man whose car was damaged followed the other for several miles. The men eventually

pulled into a parking area, got out of their cars, and began to fight. In the course of the fight, one

combatant fatally stabbed the other. Ledger, 234 Cal. Rptr. at 570. The California Court of Appeal

concluded "there was an insufficient causal connection between the stabbing and the vehicle to

consider that the former 'arose out of the use' of the latter." Id. at 572. According to the court, "[t]he

stabbing itself, however regrettable and unfortunate, was not causally connected with [the assailant's]



                                                   12
use of the vehicle .... [T]he vehicle served only to transport [the assailant] to the scene where the

stabbing took place." Id.



       Our reading of New Mexico law as indicated by Britt leads us to conclude no act of

independent significance broke the causal link between Kevin Blystra's injuries and his assailant's

use of the white truck that made the drive-by shooting possible. As we have already explained, the

vehicle was an "active accessory" to the shooting. The drive-by shooter undertook no intervening

action sufficient to disassociate his use of the truck from the shooting -- the "actions of driving and

shooting were inextricably linked." Klug, 415 N.W.2d at 878.



       We note that in Britt the court remanded for further factual determinations on the issue of

whether the causal link was broken and therefore did not decide the issue as a matter of law. Britt,

907 P.2d at 1000. Given the undisputed facts in the instant case, Britt does not require us to do the

same. In Britt, the assailants were passengers who got out of a car involved in an accident and

stabbed a passenger in the other vehicle. As the court noted, there was a factual dispute in Britt as

to whether the driver of the assailants' vehicle "intentionally rammed [the victim's] vehicle in

complicity with the assailants or in order to facilitate the attack." Id. According to the Supreme

Court of New Mexico, if the driver did intentionally aid the assailants

       then the assailants' actions probably did not constitute an "independent intervening
       cause" sufficient to cut off the nexus between the driver's actions and Britt's injuries.
       If, on the other hand, the collision was accidental and the assailants developed the
       intent to attack Britt after the collision, perhaps due to hot tempers resulting from the
       collision, then their actions broke the causal link between the use of the vehicle and
       Britt's injury.



                                                  13
Id.



        The instant case suffers from no such factual dispute. Though the parties disagree over

whether the driver or passenger of the white truck shot Kevin Blystra, the dispute is immaterial to

the question of whether Kevin's injuries arose out of the assailant's use of the vehicle. Whether it

was passenger or driver who shot Kevin cannot change the fact that the vehicle was an integral

element of the drive-by shooting. The Britt court's decision to remand only reaffirms our view that

the assailant must disassociate his assault from the vehicle's use to create a break in the causal chain.

In remanding, the court merely recognized that, given the right facts, the causal chain might not be

broken even though the assailant commits his assault after exiting the stopped vehicle.



        Having concluded that each element of Britt's three-part test is satisfied, we conclude Kevin

Blystra's injuries arose out of the ownership, maintenance, or use of the uninsured vehicle. See Britt,

907 P.2d at 999-1000.



        3. Entitled to Recover Damages from the Owner or Operator

        We now address the final issue implicated by the uninsured motorist provisions of the State

Farm and Farmers policies. Even though Kevin Blystra's injuries were caused by an "accident" and

arose out of the ownership, maintenance, or use of the uninsured vehicle, the policies confer

uninsured motorist benefits only if he would be legally entitled to recover damages for his injuries

from the owner or operator of the uninsured motor vehicle. Whether Kevin Blystra could recover

damages from the owner or operator of the white truck must be answered by reference to the


                                                   14
substantive tort law of New Mexico. See Britt, 907 P.2d at 998 (citing State Farm Auto. Ins. Co. v.

Ovitz, 873 P.2d 979, 981 (N.M. 1994)). As the Britt court noted, "fault principles have long been

a fundamental tenet of the substantive tort law of New Mexico." Id. Thus, Kevin could not recover

from the owner or operator of the white truck unless such person shares some actionable fault for

Kevin's injuries.



       A factual dispute exists as to whether the driver or passenger of the white truck shot Kevin

Blystra. In two affidavits submitted in the summary judgment stage of this litigation, Kevin insists

the driver shot him. The police report and the investigating officer assert the passenger shot Kevin.

Obviously, if the driver shot him, Kevin would be entitled to recover damages from the driver. If

the passenger shot him, Kevin still might be able to recover from the driver if the driver's role in the

shooting amounted to a tort under New Mexico law. Because of this factual dispute, we have no

choice but to remand the case to the district court for further factual determinations on the issue of

whether Kevin Blystra could recover damages from the owner or operator of the white truck.



B. Medical Payments Coverage

       The provisions governing medical payments coverage under the State Farm and Farmers

policies do not provide benefits unless Kevin sustained his injuries "through being struck by" a

"motor vehicle or trailer." We must therefore decide whether being shot with a bullet fired from a

passing vehicle amounts to be being struck by that vehicle. Observing that the Supreme Court of

New Mexico has determined that the phrase "struck by a motor vehicle" is vague and should be

construed in favor of the insured, see Foundation Reserve Ins. Co. v. McCarthy, 419 P.2d 963, 964


                                                  15
(N.M. 1966), the Blystras urge us to conclude that Kevin was "struck by" the white truck. Simply

because vague insurance language must be read in the insured's favor, does not mandate that we find

for the insured. The Blystras have brought forward no New Mexico law that convinces us to read

"struck by a motor vehicle" so liberally as to include being struck by a bullet fired from gun held by

a passenger in the motor vehicle. The undisputed facts show that Kevin Blystra was not struck by

the white truck. He is not entitled to medical payments coverage under the State Farm or Farmers

policies.



        The judgment of the district court is AFFIRMED as to medical payments coverage,

REVERSED as to uninsured motorist coverage, and REMANDED for proceedings consistent with

this opinion.




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