                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 94-CA-00583-SCT
UNITED SERVICES AUTOMOBILE ASSOCIATION
v.
PATRICIA SHELL, a/k/a PATSY LOU SHELL, AS
ADMINISTRATRIX OF THE ESTATE OF AARON
SHELL, JR., DECEASED

DATE OF JUDGMENT:                             05/25/94
TRIAL JUDGE:                                  HON. R. B. REEVES, JR.
COURT FROM WHICH APPEALED:                    FRANKLIN COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT:                       WILLIAM M. DALEHITE, JR.
ATTORNEYS FOR APPELLEE:                       W.H. MCGEHEE
                                              H.B. MAYES MCGEHEE
NATURE OF THE CASE:                           CIVIL - INSURANCE
DISPOSITION:                                  REVERSED AND RENDERED - 8/14/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                               9/5/97




     BEFORE DAN LEE, C.J., PITTMAN AND MILLS, JJ.


     PITTMAN, JUSTICE, FOR THE COURT:


¶1. Aaron Shell, Jr., was murdered by a hitchhiker he picked up on July 8, 1991. The Franklin County
Chancery Court found that his estate was entitled to benefits from an Uninsured Motorist (UM)
policy issued by United Services Automobile Association. We find, however, that Shell's assailant
was not the "owner or operator" of an uninsured motor vehicle as contemplated by the USAA policy
or Miss. Code Ann. § 83-11-101 (1991). Accordingly, the judgment of the chancery court is reversed
and rendered.

                                                  I.

¶2. Aaron Shell, Jr., was killed when Murray "Bobo" Crawford fired three gun shots from a .38
caliber Smith and Wesson revolver into his head. Apparently, Shell had driven to Fayette, Mississippi,
and was returning home for his thirtieth anniversary celebration when he picked up Crawford, who
was walking along Highway 84. According to his confession, Crawford held Shell at gunpoint, forced
him out of the truck and into the woods near Hamburg, Mississippi, some distance off Mississippi
Highway 33. He took Shell's wallet and found it empty. Crawford stated that he had to shoot Shell to
keep him from remembering his face. Although Crawford drove the truck to Slidell, Louisiana, and
abandoned it there after killing Shell, the parties do not dispute that Crawford did not operate the
truck prior to the murder. Furthermore, there is no evidence that Crawford murdered Shell in order
to gain use of the vehicle.

¶3. Shell's 1989 Dodge pick-up truck was insured by United States Automobile Association
("USAA").

¶4. Patricia Shell, as administratrix of the estate of Aaron Shell, Jr., deceased, filed suit in the
Chancery Court of Franklin County on November 6, 1992, seeking a declaratory judgment and
damages for wrongful death pursuant to Miss. Code Ann. § 11-7-13 after USAA advised her that
her husband's death was not covered under the terms of his UM policy. She asserted that Shell's heirs
were entitled to UM benefits in the amount of $400,000 under his USAA policy. After significant
discovery had taken place, USAA first sought a transfer to circuit court for a jury trial and then filed
a motion for summary judgment. Ultimately, the parties agreed that in lieu of a jury trial, briefs would
be submitted to the chancellor and oral arguments presented.

¶5. Oral arguments were heard on September 30, 1993. Prior to that time, the parties stipulated that
the only factual materials to be considered by the court were the affidavit of Highway Patrolman Jeff
Roberts, who was involved in the homicide investigation, and the videotaped confession of Murray
Crawford. The only issue presented to the court at that time was whether the plaintiff was entitled to
UM coverage. On November 9, 1993, the court filed a letter opinion finding that Shell's estate was
entitled to recover UM benefits from USAA. Following a separate hearing on the issue of damages,
the chancellor further found that Shell's heirs and wrongful death beneficiaries were entitled to
damages of $250,000.

¶6. On May 31, 1994, a final decree and judgment was entered. USAA appealed, asserting that,
under the facts of this case, the chancellor erred as a matter of law in holding that Shell's estate was
entitled to UM benefits.

                                                   II.

¶7. The estate's claim for uninsured motorist benefits is based upon the murder of Aaron Shell, Jr., by
a hitchhiker. At the time of his death, Shell had in effect a policy of motor vehicle insurance with
USAA which provided him with uninsured motorist benefits in certain situations. Our initial inquiry,
therefore, must begin with the insurance policy itself, the contract between the parties. Cauthen v.
National Bankers Life Ins. Co., 88 So. 2d 103 (Miss. 1956). The applicable USAA policy language
provides:

     UNINSURED MOTORISTS COVERAGE

     We will pay compensatory damages which a covered person is legally entitled to recover from
     the owner or operator of an uninsured motor vehicle because of:

     1. [Bodily Injury] sustained by a covered person and caused by an accident; and

     2. [Property Damage] caused by an accident if the Declarations indicates that both [bodily
     injury] and [property damage uninsured motorist] Coverage applies.
     The owner's or operator's liability for these damages must arise out of the ownership,
     maintenance or use of the uninsured motor vehicle. We will pay under this coverage only after
     the limits of liability under any applicable liability bonds or policies, or deposits of cash or
     securities have been exhausted by payment of judgments of settlements.

     Any judgment for damages arising out of a suit brought without our written consent is not
     binding on us.

(Emphasis added.) Under the terms of the policy, therefore, Shell's estate must prove (1) that Murray
Crawford was the "owner or operator" of an uninsured vehicle at the time of Shell's injuries; (2) that
the death of Aaron Shell, Jr. was "caused by an accident;" and (3) that the liability for the damages
arising out of Shell's death arose "out of the ownership, maintenance or use of the uninsured motorist
vehicle."

¶8. Correspondingly, Mississippi statutory law requires an insured to prove three elements in order to
prevail on an uninsured motorist claim. Miss. Code Ann. § 83-11-101 (1991), in pertinent part,
provides as follows:

     No automobile liability insurance policy or contract shall be issued or delivered after January 1,
     1967, unless it contains an endorsement or provisions undertaking to pay the insured all sums
     which he shall be legally entitled to recover as damages for bodily injury or death from the
     owner or operator of an uninsured motor vehicle . . . .

Miss. Code Ann. § 83-11-101(1991) (emphasis added). Under the statute, an injured insured must
prove that (1) the insured must be legally entitled to recover damages for bodily injury or death; (2)
from the owner or operator; (3) of an uninsured motor vehicle. The policy includes all that the statute
does and more. Therefore, if Shell's estate can prove the three elements required by the policy, then
the requirements of the statute are also met.

                                                  III.

¶9. It is necessary for our decision that we focus our inquiry only on whether Crawford was the
"owner or operator" of an uninsured motor vehicle. Both parties agree that in order for Shell's estate
to recover any UM benefits, it must be proven that Crawford, indeed, was the owner or operator of
an uninsured vehicle. The burden of proof falls on the estate.

¶10. Shell's estate asserts that Crawford's statement/confession was evidence that he operated the
uninsured vehicle. Furthermore, the estate contends that from the moment that Crawford pulled his
gun on Shell, Crawford assumed control and became the "operator" of the truck. The estate points to
the fact that Crawford actually drove the truck after he shot Shell to support its contention that
Crawford was the "operator" of the vehicle as contemplated by the uninsured motorist statute.
Moreover, Shell relies upon the chancellor's finding that "Mr. Crawford had taken over use and
control of the vehicle of Mr. Shell . . . [and] [t]he death of Mr. Shell was caused by the acts of Mr.
Crawford while he had the use and control of the truck which was an uninsured vehicle as to Mr.
Shell." We are not, however, bound by a chancellor's finding of fact. Rather, it is our job to determine
if the chancellor erred in making his findings.
¶11. The estate further bases its "proof" that Crawford operated the car on its assertion that USAA
"stipulated" to the fact "that Murray Crawford took over control before Mr. Shell was shot and
drove the truck after he shot Mr. Shell." This is not a correct statement of the stipulation made by the
parties. With regard to the factual matters to be considered by the court, the stipulation provided only
that:

     The parties in the above styled cause hereby stipulate that the only factual materials to be
     considered by the Court in ruling on this matter are the Affidavit of Jeff Roberts attached to the
     Defendant's Motion for Summary Judgment and the videotaped confession of Murray
     Crawford. Although the defendant consents to the Court reviewing this videotape, the
     defendant does not concede that its entire contents are relevant or admissible.

In Crawford's unsworn confession, he stated that he pulled a gun on Aaron Shell, Jr., and told him
where to drive. It is this statement upon which the estate mainly relies to support its assertion that
Crawford operated the vehicle.

¶12. To bolster Crawford's testimony, the estate further asserts:

     There is no dispute that Murray Crawford took over effective control and operation of the
     truck when he pulled his pistol and told Aaron Shell, Jr., where to go, when to stop, get out,
     etc. More importantly, to be an "operator" does not even require that you actually put the car in
     motion or drive the car. A stopped car is considered to be "used," "driven" or "operated" since
     stops are necessary and incidental to the "operation" of a car. 7A Am. Jur. 2d. § 191.

¶13. The estate mistakenly relies on the definition of "operator" provided in the treatise's discussion
of "Automobiles and Highway Traffic," rather than that found under the more relevant topic of
"Automobile Insurance." There we note that: "There is considerable authority to the effect that the
word 'operate,' as used in the coverage or exception provisions of automobile policies, means to
regulate and control the actual operation of the car, that is, to have charge of it as the driver." 7 Am.
Jur. 2d Automobile Insurance § 127. The definition further notes that "there is also authority to the
effect that the terms are not limited to such direct physical control of the vehicles," such that one has
been found to be an operator when exercising some control over a vehicle though not sitting in the
driver's seat. See, e.g.Lumbermen's Mut. Cas. Co. v. McIver, 110 F.2d 323 (9th Cir. 1940), cert.
denied, 311 U.S. 655, 61 S.Ct. 8, 85 L.Ed. 419 (1940) (teacher who grabbed steering wheel from
student driver and hit the emergency brake prior to accident held to be "operator" of motor vehicle).
The few cases defining "operator" are highly fact-specific and focus on the degree of control exerted
by the one alleged to be the operator and the vehicle, not as the estate would try to persuade us, by
the control exerted over the driver of the vehicle. At least one court, therefore, has defined
"operator" as synonymous with "driver." Orth v. Universal Underwriters Ins. Co., 284 F.2d 857
(8th Cir. 1960). Only where a gun was fired by the driver of an uninsured motor vehicle at an insured
while both were driving along a highway has it been found that injuries from an intentional gunshot
were caused by the "owner or operator of an uninsured motor vehicle." Continental Western Ins.
Co. v. Klug, 415 N.W. 2d 876 (Minn. 1987).

¶14. The estate, however, directs our attention to Alabama Farm Bureau Mut. Cas. Ins. Co. v.
Mitchell, 373 So. 2d 1129 (Ala. 1979), for the proposition that an assailant who seizes possession of
the victim's vehicle before inflicting a fatal injury to the victim is deemed to "operate" the vehicle
under an automobile policy. Mitchell is distinguishable in many ways from the case sub judice. Based
on the admissions of Mrs. Mitchell's confessed killer,

     Brown was employed by Mrs. Mitchell to cut her lawn, trim hedges, and do other odd jobs. He
     lived near her residence with his parents and had known Mrs. Mitchell about a year. On the day
     of the murder, Brown went to see Mrs. Mitchell. He and Mrs. Mitchell began to "tussle."
     Brown threw Mrs. Mitchell on the floor, straddled her, and hit her with his fists. He bumped her
     head on the floor a number of times and took a towel and tried to choke her with it. Mrs.
     Mitchell became unconscious or semi-conscious, at which time Brown took Mrs. Mitchell's car
     keys out of her purse, drove her car around to the back door, took a blanket and wrapped it
     around her, and placed Mrs. Mitchell in the trunk of her car. Brown said it seemed Mrs.
     Mitchell was making faint groaning noises when he put her in the trunk. He thought she was
     dying. Brown drove the car all day; he then parked the car behind an old abandoned house and
     walked home. The car remained there all night with Mrs. Mitchell in the trunk. Brown testified
     he looked in the trunk on one occasion after he thought he heard bumping noises while he was
     driving around. He said Mrs. Mitchell did not move and he assumed she was dead. Brown
     touched her and said she felt damp cold. In Brown's best judgment, two hours had elapsed
     between the time he put Mrs. Mitchell in the trunk and the time he looked in on her. Brown
     drove the car through rural areas of the county the next day and left the car in a field. He
     looked in on Mrs. Mitchell again and said he was sure she was dead. He closed the trunk and
     left.

Id. At all times, Brown had total control over Mrs. Mitchell's vehicle. He drove the car around with
its semi-conscious owner in the trunk. She died in the trunk of her car from lack of food, water and
oxygen. In contrast, in the case sub judice, Shell was driving his own car. While Crawford may have
exerted control over Shell in forcing him to drive from the roadway to a more secluded wooded area,
Crawford had no control over the vehicle itself. Moreover, while Mrs. Mitchell died in her vehicle;
the record indicates that Shell was forced out of his pick-up truck before Crawford shot him.

¶15. Even more to the point, the issue in Mitchell was not whether Mrs. Mitchell's killer was the
operator of an uninsured motor vehicle, but whether her death arose out of the use of the car and
whether benefits were payable under the UM policy where the death of the insured results from an
intentional act. The Alabama Court found that Mrs. Mitchell's death was the result of an accident
within the meaning of the policy and thus, recovery was granted. Id. at 1136.

                                                 IV.

¶16. Because neither the law nor the evidence supports the estate's claim that Crawford was the
"operator" of Shell's vehicle as contemplated by the USAA policy or our UM statute, we need not
reach the issues of whether Shell's death was an accident or whether it arose out of the ownership,
operation or use of an uninsured motor vehicle. We therefore reverse and render the decision of the
chancery court.

¶17. It is not necessary that we follow other discussions. However, we should cite Mississippi cases
seemingly on point dealing with liability for damages arising out of Shell's death as "ownership,
maintenance or use of the uninsured motorist vehicle."
¶18. This question of law is well settled in Mississippi. We have clearly determined that "a shooting
of an insured driver by an uninsured motorist did not arise out of the ownership, maintenance or use
of that vehicle and therefore [does] not fall under the [uninsured motorist] coverage of the insurance
polic[y]." Spradlin v. State Farm Mut. Auto. Ins. Co., 650 So. 2d 1383, 1386 (Miss. 1995) (citing
Coleman v. Sanford, 521 So. 2d 876 (Miss. 1988); and Roberts v. Grisham, 487 So. 2d 836 (Miss.
1986)).

¶19. In Roberts, Roberts and Grisham began the incident in separate cars. Grisham followed Roberts
until he stopped his car. At this time Grisham left his car and went to Roberts' car. Grisham walked
over to the driver's side and shot Roberts in the head inflicting a fatal wound. Roberts, 487 So. 2d at
837. In denying coverage under an uninsured motorist policy, this Court stated that:

     [i]n order for liability to attach under the coverage provision in the case sub judice, the act or
     acts committed at the time the wrongful cause was set in motion must have arisen out of either
     the maintenance, operation, or use of the vehicle; that they must have continued in unbroken
     sequence to cause the plaintiff's injury; and any intervening cause that interrupted or broke that
     sequence removed any developing liability. We are of the opinion that the shooting of Roberts
     by Grisham was an intervening cause, which broke the use sequence of the automobile and
     death of Roberts.

Id. at 839.

¶20. Two years later the Court was again faced with a similar situation. In Coleman, the facts were
undisputed that Coleman and Sanford were driving opposite directions on the highway when Sanford
crossed over the center line and struck Coleman's vehicle. Coleman was allowed to leave, but
Sanford was asked to pull his vehicle to the side of the road so that the police officers present at the
wreck might administer a test to determine if Sanford was intoxicated. Coleman, 521 So. 2d at 876.
However, instead of pulling his vehicle to the side of the road, Sanford got into his vehicle and began
following Coleman. Subsequently, Sanford caught up with Coleman and proceeded to shoot into
Coleman's car while both cars were moving. Coleman was injured severely by the incident. Id. at
876-77. Again, this Court denied coverage to the injured party under an uninsured motorist policy.
Relying upon Roberts, this Court held that "[a]lthough Sanford cites cases from other jurisdictions to
the contrary . . . in Mississippi Roberts controls." Id. at 877 (citations omitted).

¶21. Finally, just last year this Court again faced the same case. In Spradlin, this Court again denied
coverage to an injured person who was shot at by another. Spradlin, 650 So. 2d at 1388. As this
Court stated last year, "this Court has already deliberated both sides of this issue and made an
informed decision that the shootings in those cases did not arise out of the ownership, operation or
use of the uninsured motor vehicle." Id. It is well settled law in Mississippi that a shooting of a victim
while in a car by someone who is in an uninsured motor vehicle is not arising out of the ownership,
maintenance or use of the uninsured motorist vehicle. Thus, the lower court erred in finding to the
contrary.

¶22. The lower court erred in finding that uninsured motorist benefits should have been awarded to
Aaron Shell, Jr.'s, estate. We have reviewed this question before and clearly held to the contrary. To
allow such a recovery is against the principle and policy behind uninsured motorist coverage. Thus,
the case is reversed and rendered holding that Aaron Shell, Jr.'s, estate is not entitled to uninsured
motorist benefits.

¶23. REVERSED AND RENDERED.

PRATHER AND SULLIVAN, P.JJ., BANKS, McRAE, ROBERTS, SMITH AND MILLS,
JJ., CONCUR. LEE, C.J., CONCURS IN RESULT ONLY.
