                     IN THE COURT OF APPEALS OF TENNESSEE
                                  AT JACKSON

                                                                      FILED
JESSICA WEIL,                          )                                June 29, 1999
                                       )
      Plaintiff/Appellee,              )      Shelby Circuit No. 87231 Cecil Crowson, Jr.
                                       )                              Appellate Court Clerk
v.                                     )
                                       )      Appeal No. 02A01-9804-CV-00098
JOHN GAIA, JOSHUA COLE, and            )
MICHAEL WARE,                          )
                                       )
      Defendants,                      )
                                       )
and                                    )
                                       )
STATE FARM INSURANCE                   )
COMPANY,                               )
                                       )
      Unnamed Defendant/Appellant.     )


              APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
                          AT MEMPHIS, TENNESSEE


                       THE HONORABLE KAY S. ROBILIO, JUDGE



For the Unnamed Defendant/Appellant,   For the Plaintiff/Appellee:
State Farm Insurance Company:

J. Kimbrough Johnson                   Marc A. Sorin
Memphis, Tennessee                     Memphis, Tennessee



                                       REVERSED AND REMANDED



                                       HOLLY KIRBY LILLARD, J.


CONCUR:

ALAN E. HIGHERS, J.

DAVID R. FARMER, J.
                                            OPINION

       This is an interlocutory appeal in a personal injury case. The plaintiff passenger in an

uninsured vehicle was injured by a gunshot from the driver of another uninsured vehicle. The

injured plaintiff filed suit against the drivers of both vehicles and sought coverage under the

uninsured motorist provision of her automobile insurance. The defendant insurance company filed

a motion to sever the insurance coverage question from the tort action and deny coverage. This

motion was denied by the trial court. The insurance company appeals. We reverse.

       The facts of this case are undisputed. On May 4, 1996, Plaintiff/Appellee Jessica Weil

(“Weil”) rode to a friend’s house in an uninsured car driven by Michael Ware (“Ware”). Ware

brought his Rottweiler puppy along with him to the friend’s house. The friend, who was not fond

of dogs, asked that Ware put the puppy in her backyard. When Weil and Ware left the friend’s

house, they discovered that the puppy had escaped from the backyard. Ware left on foot to go search

for the dog. He returned shortly with the puppy. Weil and Ware got in Ware’s car to leave. Ware

was driving and Weil was the passenger. As they were driving away, they heard someone screaming

at them from another car. Weil later discovered that this person was Defendant John Gaia (“Gaia”).

She had never met him, but knew who he was. As Weil and Ware drove off, Gaia chased them in

his car. Gaia tried to run Weil and Ware off the road by ramming Ware’s vehicle with his own car.

At stoplights, Gaia continued to scream at Weil and Ware. Ware then entered the highway; Gaia

followed. Once on the highway, Gaia pulled out a 9 mm pistol and shot into Ware’s car. When Gaia

fired into Ware’s car, Gaia’s car was traveling near the left rear panel of Ware’s car. Weil was hit

in the back and suffered permanent serious injuries. Weil’s injury was caused only by the gunshot

wound; she was not injured on the occasions when Gaia rammed Ware’s car with his own. Neither

Gaia nor the car he was driving were insured at the time of the accident.

       Weil filed a lawsuit seeking damages for her personal injuries. Named as defendants were

Michael Ware, John Gaia, and Joshua Cole, the owner of the vehicle driven by Gaia. Weil sought

$1,500,000 million dollars in compensatory damages from each defendant.

       At the time of the incident, Weil had automobile insurance with State Farm Insurance

Company (“State Farm”). Weil’s personal injury lawsuit against the above named defendants was

served on State Farm under Tennessee’s uninsured motorist statute. See Tenn. Code Ann. § 56-7-
1206(a) (1994).1 Weil sought to recover damages under the uninsured motorist provision of her

automobile insurance policy for the injuries caused to her by Gaia, an uninsured motorist. In State

Farm’s answer, it denied coverage to Weil under the uninsured motorist provision and sought a

determination of its coverage obligation under the policy. In the alternative, State Farm asserted that

Weil’s complaint sought damages in excess of the coverage limits of the policy and that she was not

entitled to recovery in excess of those limits. Finally, State Farm contended that Weil’s injuries were

not “caused by an accident arising out of the operation, maintenance or use of an uninsured motor

vehicle,” and therefore her injuries were not covered by the insurance policy. The State Farm

uninsured motorist policy provision reads:

       We 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 caused by accident arising out of the operation, maintenance or use of
       uninsured motor vehicle.

The above provision is the only policy provision applicable to this case.

       State Farm filed a motion to sever the insurance coverage question from the tort action and

deny coverage. This was denied by the trial court. Several days after the trial court denied State

Farm’s motion, Weil filed a motion to proceed directly against State Farm pursuant to Tennessee

Code Annotated § 56-7-1206(d). Tennessee Code Annotated § 56-7-1206(d) provides that,

       In the event that service of process against the uninsured motorist, which was issued
       to the motorist's last known address, is returned by the sheriff or other process server
       marked, "Not to be found in my county," or words to that effect, or if service of
       process is being made upon the secretary of state for a nonresident uninsured motorist
       and the registered notice to the last known address is returned without service on the
       uninsured motorist, the service of process against the uninsured motorist carrier,
       pursuant to this section, shall be sufficient for the court to require the insurer to
       proceed as if it is the only defendant in such a case.




       1
               The relevant portion of the uninsured motorist statute reads:

       Any insured intending to rely on the coverage required by this part shall, if any action
       is instituted against the owner and operator of an uninsured motor vehicle, serve a
       copy of the process upon the insurance company issuing the policy in the manner
       prescribed by law, as though such insurance company were a party defendant. Such
       company shall thereafter have the right to file pleadings and take other action
       allowable by law in the name of the owner and operator of the uninsured motor
       vehicle or in its own name; provided, that nothing in this subsection shall prevent
       such owner or operator from employing counsel of the owner's own choice; and
       provided further, that the evidence of service upon the insurance carrier shall not be
       made a part of the record.

Tenn. Code Ann. § 56-7-1206(a) (1994).

                                                  2
Tenn. Code Ann. § 56-7-1206(d) (1994). Weil’s motion indicated that the summons to all three

named Defendants in her complaint were returned “not to be found.” The trial court granted Weil’s

motion. State Farm then filed a motion for interlocutory appeal, which resulted in this appeal.2

        The sole issue for review is whether Weil’s injuries were “caused by accident arising out of

the operation, maintenance or use of an uninsured motor vehicle,” thus allowing plaintiff to recover

under the uninsured motorist provision of her insurance.

        Insurance contracts are subject to the same rules of construction as applied to contracts

generally. See McKimm v. Bell, 790 S.W.2d 526, 527 (Tenn. 1990). The analysis used in

construing insurance policies is well settled. "Insurance contracts like other contracts should be

construed so as to give effect to the intention and express language of the parties." Blaylock &

Brown Constr., Inc. v. AIU Ins. Co., 796 S.W.2d 146, 149 (Tenn. App. 1990). Words in an

insurance policy are given their common and ordinary meaning. See Moss v. Golden Rule Life Ins.

Co., 724 S.W.2d 367, 368 (Tenn. App. 1986).

        Tennessee caselaw sets forth the analysis for vehicle-related assaults and accidents involving

firearms. Travelers Insurance Co. v. Aetna Casualty and Surety Co., 491 S.W.2d 363, 365 (Tenn.

1973), states that the court is to first determine whether the use of the vehicle is a proper one. If the

use is “proper,” the court must then determine whether there is a causal connection between the use

and the injury. See also Anderson v. Bennett, 834 S.W.2d 320, 323 (Tenn. App. 1992) (noting that

“the Travelers analysis . . . requires this Court to determine whether the use of the vehicle was

proper before addressing the causation issue”). In interpreting the phrase “arising out of the use” of

the vehicle, Travelers notes that the term “has generally been held to be a broad, comprehensive term

meaning ‘origination from,’ ‘having its origin in,’ ‘growing out,’ or ‘flowing from.’ . . . The term

‘use’, then, has been a general catch-all term construed by the courts to include all proper uses of

a vehicle.” Travelers, 491 S.W.2d at 365 (emphasis added) (citations omitted).

        “The legal issue of whether an accident arises out of the use or maintenance of an automobile

is a recurring question which defies a simple test. Instead, each case presenting such a question



        2
               The record is unclear as to the basis for State Farm’s motion for interlocutory
appeal. Although the motion appeals the trial court’s “Order denying State Farm’s Motion for
Summary Judgment,” the only motion in the record filed by State Farm was its motion to sever
and deny coverage. Moreover, this Court’s order granting permission for interlocutory appeal is
based on the trial court’s order denying State Farm’s motion to sever and deny coverage.

                                                   3
must, to a great degree, turn on the particular facts presented.” Continental W. Ins. Co. v. Klug, 415

N.W.2d 876, 877-78 (Minn. 1987) (citations omitted).

       State Farm argues on appeal that the injury is not covered under its uninsured motorist

provision because the injuries were not “caused by accident arising out of the operation, maintenance

or use of an uninsured motor vehicle,” citing Anderson v. Bennett, 834 S.W.2d 320 (Tenn. App.

1992). In Anderson, a man fired a bullet from his car in the direction of a group of children and hit

one child. See id. at 321. The appellate court affirmed the trial court’s denial of coverage for the

child under the uninsured motorist provision of the child’s family policy, reasoning that the use of

the vehicle to discharge a weapon was not a “proper or normal” use of the vehicle for purposes of

insurance coverage. See id. at 323.

       Weil argues that Anderson is distinguishable on its facts because, in Anderson, the car driven

by the defendant was merely the situs at which the shooting occurred. In contrast, in this case, Weil

argues, the car driven by Gaia was an instrumentality of the shooting. Weil claims that the “act of

Mr. Gaia’s shooting from the uninsured vehicle he was driving clearly ‘flows from’ or ‘grows out

of’ the use of the vehicle” and that “but for” the use of Gaia’s car to chase Weil and Ware, the

shooting could not have taken place.

       Weil cites State Farm Mutual Automobile Insurance Co. v. Davis, 937 F.2d 1415 (9th Cir.

1991). Although Davis applied California law, it observed that both Tennessee and California

caselaw were the same in that both states “require a slight causal connection between an insured

vehicle and a shooting injury before the injury may be held to ‘arise out of the use’ of the insured

vehicle.” Id. at 1419. In Davis, a passenger in a van shot into another moving vehicle, injuring the

passenger in the other vehicle. See id. at 1417. Relying on California caselaw, the court concluded

that the California Supreme Court would find insurance coverage because the use of the van was not

incidental to the shooting. See id. at 1420. The van provided the means of chasing the other car and

the means of escape, and therefore was “more than minimally connected with the injuries . . .

suffered.” Id.




                                                  4
       In this appeal, to determine whether Weil can recover under the uninsured motorist provision

of her policy for the serious injuries inflicted by Gaia, we must ascertain whether both prongs of the

Travelers test, proper use and causation, are met. 3 See Travelers, 491 S.W.2d at 365.

       Under Travelers, the first inquiry is to determine whether Gaia’s use of the vehicle was

proper. See id. Gaia used the vehicle to pursue and ram the car Ware was driving, in which Weil

was a passenger. Weil was not injured during these activities. Her injury occurred when Gaia fired

a gun into Ware’s car from Gaia’s moving vehicle. Therefore, the focus is on Gaia’s use of the

vehicle in shooting at the Ware vehicle. In Anderson v. Bennett, 834 S.W.2d 320, 323 (Tenn. App.

1992), this Court held that the defendant’s use of a vehicle to shoot in the direction of a crowd of

children “was not a proper or normal use of the vehicle as required by Travelers.”

       Weil attempts to distinguish Anderson by arguing that the automobile being driven by the

defendant in that case was merely the situs of the shooting, while the vehicle driven by Gaia was an

instrumentality of the shooting. However, this argument goes to the causation prong of the Travelers

test, rather than the proper use prong. State Farm Mutual Automobile Insurance Co. v. Whitehead,

cited by Weil states, “Coverage was denied in Cameron because the pickup was merely the ‘situs’

or ‘locus’ of the accidental discharge of the rifle and thus there was no ‘causal connection’ between

its discharge and the use of the vehicle.” 711 S.W.2d 198, 201 (Mo. App. 1986) (referring to

Cameron Mut. Ins. Co. v. Ward, 599 S.W.2d 13 (Mo. App. 1980)).

       Similarly, State Farm Mutual Automobile Insurance Co. v. Davis, also cited by Weil, is

inapplicable. Although Davis observed that California law and Tennessee law are the same in that

both “require a slight causal connection between an insured vehicle and a shooting injury before the

injury may be held to ‘arise out of the use’ of the insured vehicle,” Davis relied on California

caselaw without discussing Tennessee’s two-prong test requiring a finding of proper use of the

vehicle before causation is addressed.

       Likewise, the other cases cited by Weil, although factually similar to this , do not analyze

coverage under the two-prong Travelers test. See Continental W. Ins. Co. v. Klug, 415 N.W.2d


       3
                Tennessee caselaw differs from that of other states in this area because it requires
a finding of proper use before causation is addressed. In most other jurisdictions, the question of
use is intertwined with the causation issue. See Larry D. Scheafer, Annotation, Automobile
Liability Insurance: What Are Accidents or Injuries “Arising out of Ownership, Maintenance, or
Use” of Insured Vehicle, 15 A.L.R.4th 10 (1982). An adequate nexus of causation is usually
found where an individual shoots from a moving vehicle into another moving vehicle. See id.

                                                  5
876, 878 (Minn. 1987) (using a three prong test to determine insurance coverage, in which the third

prong, considering the type of use of the automobile, is only reached after causation is established);

State Farm Mut. Ins. Co. v. Whitehead, 711 S.W.2d 198, 201 (Mo. App. 1986) (finding that

coverage existed because a causal connection was present without first finding that the use of the

vehicle was normal or proper).

       In this case, Gaia used his vehicle to chase Ware’s car, and to fire a weapon at Ware’s car.

In view of Anderson, we must conclude that Gaia’s use of his vehicle to fire a weapon at Ware’s car

was not a proper use under the uninsured motorist provision of Weil’s insurance policy. This

holding makes it unnecessary to reach the issue of whether there was a causal connection between

Gaia’s use of his vehicle and the shooting. Therefore, Weil’s injury was not “caused by accident

arising out of the operation, maintenance or use of an uninsured motor vehicle,” within the meaning

of her insurance policy and State Farm is not obliged to provide coverage to her under the uninsured

motorist provision. The decision of the trial court must therefore be reversed.

       The decision of the trial court is reversed, and the cause is remanded to the trial court for

further proceedings consistent with this Opinion. Costs are taxed to Appellee, for which execution

may issue if necessary.




                                       HOLLY KIRBY LILLARD, J.

CONCUR:



ALAN E. HIGHERS, J.



DAVID R. FARMER, J.




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