                            PUBLISHED
                                                Filed: June 10, 2005

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


DAVID PEAGLER, personal                   
representative of the Estate of
Kathy Marie Thompson,
                    Plaintiff-Appellee,
                                                  No. 04-2257
                  v.
USAA INSURANCE COMPANY,
            Defendant-Appellant.
                                          

                  ORDER OF CERTIFICATION


TO: THE HONORABLE CHIEF JUSTICE AND JUSTICES OF
    THE SOUTH CAROLINA SUPREME COURT

  Pursuant to Rule 228 of the South Carolina Appellate Court Rules,
we certify the question that is set forth herein to the South Carolina
Supreme Court.

                                   I

                       Nature of the Controversy

   Kathy Thompson was fatally injured when her husband, Greg, was
unloading shotguns from the pickup truck she was occupying. At the
time of the accident, Kathy Thompson and her husband were covered
under an automobile insurance policy issued to them by USAA Insur-
ance Company (USAA). On October 24, 2002, David Peagler
(Peagler), the personal representative of the estate of Kathy Thomp-
son, brought this action in the South Carolina Court of Common Pleas
for Clarendon County. The action was removed to the United States
2                    PEAGLER v. USAA INSURANCE
District Court for the District of South Carolina on November 25,
2002, based on diversity of citizenship. The action seeks a declara-
tion: (1) "that there does exist a causal connection between the vehicle
and the injury which resulted in the decedent’s death"; (2) "that no act
of independent significance breaks the causal link between the vehicle
and the injury"; and (3) "that the vehicle was being used for transpor-
tation at the time of the injury which resulted in the decedent’s death."
(J.A. 7).

                                   II

               Relevant Facts and Procedural History

   The facts relevant to the certified question presented are not in dis-
pute, as the parties in the court below entered into the following stipu-
lation of facts:

    1. That on August 31, 2001, Gregory A. Thompson, 5190
       Long Branch Drive, Dalzell, South Carolina, [and]
       USAA Casualty Insurance Company had an existing
       binding contract of insurance, policy number 0036-72-
       21C-7104-4. That a 1992 Ford Taurus four-door sedan
       and a 2000 Ford F-150 4x4 super cab pickup truck were
       the covered vehicles and Gregory A. Thompson and
       Kathy M. Thompson were identified as the vehicles’
       operators.

    2. That on the morning of August 31, 2001, Kathy Marie
       Thompson, and her two children, Kyle and Jared, exited
       their home for purposes of traveling to school and work.
       That Kathy Thompson and her children entered her
       Taurus Sedan at which point attempts to start the sedan
       failed. That Mr. Gregory A. Thompson was summoned
       outside by his wife and he too attempted to start the
       Taurus sedan with no success. That the Taurus sedan
       was later determined to have had a dead battery which
       required repair. That Mr. Thompson and his wife went
       back into their home at which time Mr. Thompson
       retrieved the keys to his Ford pickup truck with the two
       planning that she would take his truck for purposes of
                PEAGLER v. USAA INSURANCE                       3
    dropping the children off at school and her going to
    work. That Mr. Thompson was to repair Mrs. Thomp-
    son’s Taurus sedan and switch vehicles with her later in
    the day.

3. That Mrs. Thompson exited the Thompson residence,
   gathered up her two sons, and began loading her chil-
   dren and herself into the parked Ford pickup truck. That
   Mrs. Thompson entered the cab of the four-door pickup
   truck taking a seat in the driver’s position at which time
   she cranked the engine of the truck, closed the door and
   wrapped her seatbelt around her. That their oldest son,
   age 14, entered the front passenger section of the Ford
   pickup truck taking a seat in the right front passenger
   seat fastening his seatbelt and shutting the door. That
   Mrs. Thompson’s youngest son, age 9, opened the rear
   driver’s side door for purposes of entering the vehicle
   at which time he saw two cased shotguns lying across
   the rear seating area of the pickup truck with the butt
   ends of the shotguns lying in the passenger side rear
   seat area and the barrel ends of the shotgun lying in the
   driver’s side rear seat area. That Mrs. Thompson’s son
   alerted his mother to the existence of the guns at which
   time Kathy Marie Thompson instructed her youngest
   [son] to go into the house and advise Mr. Thompson to
   come out and unload the guns from the vehicle.

4. That Mr. Thompson came out of his residence along
   with his 9 year old son at which time his son went
   around to the rear passenger side door, which he had
   previously opened. That Greg Thompson went to the
   passenger side rear door which he opened and then
   entered the cab area of the truck lifting the guns off the
   rear seating area and placing the barrel of the guns
   pointing toward the floor with the butt ends pointing
   towards the truck’s rear window. That he assisted his 9
   year old son in getting into the truck cab, moved his
   book bag over, and helped him fasten his seat belt at
   which point his 9 year old son shut his door. That Mr.
   Thompson, now situated with his left knee on the
4                  PEAGLER v. USAA INSURANCE
        truck’s rear seat and his right foot on a truck running
        board, again lifted the guns and began to exit the vehi-
        cle, when almost instantaneous with his lifting the guns
        from the floor and beginning to exit the vehicle, one of
        the shotguns discharged striking Kathy Marie Thomp-
        son in the torso with shotgun pellets traveling between
        the front seats on to break the left side driver’s door
        glass. None penetrated the metal skin of the truck. The
        fact that the truck’s engine was running did not cause
        or contribute to the discharge of the shotgun.

    5. That Kathy Marie Thompson died within seconds as a
       result of wounds received from the discharge of a shot-
       gun.

    6. That the shooting of Mrs. Thompson was not intentional
       and it occurred when Mr. Thompson was unloading two
       or more cased shotguns from the Ford pickup truck.
       That Mr. Thompson believed that all the shotguns were
       unloaded, based on his knowledge of having unloaded
       his shotgun after its use the previous day and after hav-
       ing asked his 14 year old son if he had unloaded his
       shotgun prior to putting it in the truck to which his son
       answered in the affirmative. That the Mossburg shotgun
       that discharged was the gun used by Mr. Thompson’s
       14 year old son.

    7. That the prior day Mr. Thompson and his older son
       loaded two shotguns into the Ford pickup and traveled
       to hunting grounds to scout deer and practice shooting
       their guns preparing for hunting season which opened
       September 1, 2001. That while out of the vehicle, on
       August 30, 2001, while the guns were uncased, it began
       to rain at which time Mr. Thompson and his oldest son
       placed their guns back in their cases and placed them on
       the rear seating area of the Ford truck. That Mr. Thomp-
       son and his son returned home over a route of approxi-
       mately 40 miles which involved both improved and
       unimproved roadways. That USAA did not specifically
       know that Mr. Thompson was a hunter, but understood
                      PEAGLER v. USAA INSURANCE                       5
          and foresaw that trucks of this type are frequently used
          in hunting.

      8. That the definition of "transportation," "operation," and
         "use of vehicle" are not defined in the definition section
         of the policy. The term "occupying" is defined in the
         policy.

(J.A. 12-15).1

   As noted above, in November 2002, Peagler’s declaratory judg-
ment action was removed to the United States District Court for the
District of South Carolina. After the parties entered into the stipula-
tion of facts, both parties filed motions for summary judgment. On
June 24, 2004, the district court granted Peagler’s motion and denied
USAA’s motion. USAA filed a motion to alter or amend under Rule
59(e), which was denied. USAA filed a timely notice of appeal.

                                   III

                      Contentions of the Parties

   We begin our discussion by noting that the parties do not take issue
with certain South Carolina legal principles. First, the parties agree
that, in South Carolina, "[n]o automobile insurance policy may be
issued or delivered in this State . . . unless it contains a provision
insuring the persons defined as insured against loss from the liability
imposed by law for damages arising out of the ownership, mainte-
nance, or use" of a motor vehicle. S.C. Code Ann. § 38-77-140; see
also S.C. Code Ann. § 38-77-30(10.5) (defining "[p]olicy of automo-
bile insurance" as a "a policy or contract for bodily injury or property
damage liability insurance issued or delivered in this State covering
liability arising from the ownership, maintenance, or use of any motor
vehicle"). The parties also agree that, when determining whether an
injury arises out of the ownership, maintenance, or use of a motor
vehicle, the three-part test enunciated in State Farm Fire & Casualty
  1
   The policy defines "occupying" as "in, on, getting into or out of."
(J.A. 25).
6                    PEAGLER v. USAA INSURANCE
Co. v. Aytes, 503 S.E.2d 744 (S.C. 1998), applies. The three-part test,
as set forth in Aytes, is as follows: (1) "the party seeking coverage
must establish a causal connection between the vehicle and the
injury," id. at 745; (2) "there must exist no act of independent signifi-
cance breaking the causal link," id.; and (3) "it must be shown the
vehicle was being used for transportation at the time" of the injury.
Id.

   With regard to the first part of the Aytes test, the South Carolina
Supreme Court explained in Aytes that causal connection means: (1)
the vehicle was an "active accessory" to the assault; (2) something
less than proximate cause, but something more than the vehicle being
the mere site of the injury; and (3) that the injury was "foreseeably
identifiable with the normal use of the vehicle." Id. at 745-46 (citation
and internal quotation marks omitted); see also State Farm Mut. Auto.
Ins. Co. v. Bookert, 523 S.E.2d 181 (S.C. 1999) (applying the Aytes
factors in determining whether the necessary causal connection was
present).

   USAA contends that there was no causal connection between the
pickup truck and the injury. According to USAA, the truck was not
an active accessory because the only connection between the truck
and the injury is the fact that Kathy Thompson was seated in the vehi-
cle at the time of the shooting. Along a similar vein, USAA suggests
the truck played no role in the creation of the injury because, in effect,
the injury did not depend on the truck, as Kathy Thompson’s injury
could have happened "anywhere else." Appellant’s Br. at 12. More-
over, USAA posits that the truck was the mere situs of the injury.
Finally, USAA suggests that the accidental discharge of a shotgun is
not foreseeably identifiable with the normal use of a vehicle.

   Peagler counters by arguing that there is a causal connection
between the pickup truck and the injury because the loading and
unloading of firearms is an acceptable and foreseeable use of the
truck. Peagler posits that Kathy Thompson’s fatal injury would not
have occurred unless the truck was being used to unload firearms for
the purpose of transporting passengers. Finally, Peagler suggests that
the accidental discharge of a shotgun is foreseeably identifiable with
the common event of unloading of firearms.
                     PEAGLER v. USAA INSURANCE                         7
   With regard to the second part of the Aytes test, USAA contends
that three acts of independent significance broke the alleged causal
link between the pickup truck and the injury. First, USAA contends
that the alleged causal link is broken because at least one of the shot-
guns was left in the truck for approximately twelve hours with its
safety disengaged. According to USAA, this fact "dispels any notion
that the injury was caused by a normal use of the vehicle." Appel-
lant’s Br. at 19. Second, USAA contends that the alleged causal link
is broken because Greg Thompson picked up the two shotguns in his
"arms at once rather than taking them out of the truck one-by-one."
Id. According to USAA, if Greg Thompson had taken the shotguns
out of the truck one at a time, the accident would not have occurred.
Third, USAA contends that the alleged causal link is broken because
the shotgun that discharged was in its case.

   In response, Peagler contends that there was no act of independent
significance breaking the causal link between the pickup truck and the
injury. According to Peagler, the injury occurred when Greg Thomp-
son negligently handled the shotguns while removing them from the
truck. As Peagler’s argument goes, each of the alleged acts of inde-
pendent significance were not independent of the cause of the injury
—the negligent use and handling of shotguns.

   With regard to the third part of the Aytes test, USAA contends that
the pickup truck was not being used for transportation purposes at the
time the injury occurred. USAA points out that, at the time the injury
occurred, the truck was not moving and the passenger side door was
open. USAA suggests that the truck was not in the process of trans-
porting passengers to another location, though it concedes that such
transportation was imminent. USAA also suggests that the intended
use of the truck—transportation of the children to school—could not
begin until the shotguns were removed because it would "have been
unlawful for Mrs. Thompson to carry weapons onto the school
grounds in the truck." Appellant’s Br. at 22.

  Peagler, in response, takes the position that the pickup truck was
being used for transportation purposes at the time of the injury.
According to Peagler, Kathy Thompson’s use of the truck for trans-
portation purposes "commenced when the driver’s side door was
opened, the driver loaded herself into the driver’s seat, and started the
8                    PEAGLER v. USAA INSURANCE
truck’s engine awaiting the remaining passengers to load." Appellee’s
Br. at 27. Moreover, Peagler suggests that the "truck was being used
for transportation inasmuch as loading passengers into and concur-
rently, in accommodation, and in adherence to South Carolina gun
laws, unloading the guns from the truck was inextricably linked part
and parcel of the use to which the truck was then being put." Id.

   We have reviewed the existing South Carolina case law on the
question of what constitutes ownership, maintenance, or use of a
motor vehicle, particularly the following cases: Doe v. S.C. State Bud-
get and Control Bd., 523 S.E.2d 457 (S.C. 1999); Bookert; Aytes;
Home Ins. Co. v. Towe, 441 S.E.2d 825 (S.C. 1994); Wausau Under-
writers Ins. Co. v. Howser, 422 S.E.2d 106 (S.C. 1992); Wrenn &
Outlaw, Inc. v. Employers’ Liab. Assurance Corp., 142 S.E.2d 741
(S.C. 1965); Coletrain v. Coletrain, 121 S.E.2d 89 (S.C. 1961); Trav-
elers Indem. Co. v. Auto World of Orangeburg, Inc., 511 S.E.2d 692,
698 (S.C. Ct. App. 1999); Carraway v. Smith, 467 S.E.2d 120 (S.C.
Ct. App. 1995); and Hite v. Hartford Accident & Indem. Co., 344
S.E.2d 173 (S.C. Ct. App. 1986). Following this review, we conclude
that there is no South Carolina case dispositive on the close question
of whether Kathy Thompson’s fatal injury arose out of the ownership,
maintenance, or use of a motor vehicle.

                                  IV

                         Questions Certified

  We certify the following question to the South Carolina Supreme
Court:

   (1) Did Kathy Thompson’s fatal injury arise out of the "owner-
ship, maintenance, or use" of a motor vehicle? S.C. Code Ann. §§ 38-
77-30(10.5), 38-77-140.

  This court acknowledges that the Supreme Court of South Carolina
may reformulate this question.
                   PEAGLER v. USAA INSURANCE                       9
                                 V

                            Conclusion

   We conclude that there is no precedent from the South Carolina
Supreme Court or the South Carolina Court of Appeals dispositive of
the question certified. Pursuant to the privilege made available by
Rule 228 of the South Carolina Appellate Court Rules, we respect-
fully:

    (1) Certify this matter to the South Carolina Supreme
        Court for resolution of the question presented in Part
        IV of this Order of Certification;

    (2) Order the Clerk of this court to forward to the South
        Carolina Supreme Court, under the official seal of this
        court, a copy of this Order of Certification, together
        with the original or copies of the record before this
        court to the extent requested by the South Carolina
        Supreme Court; and

    (3) Order that any request for all or part of the record be
        fulfilled by the Clerk of this court simply upon notifi-
        cation from the Clerk of the South Carolina Supreme
        Court.

  This Order of Certification is entered with the concurrences of
Judge Gregory and Judge Duncan, United States Circuit Judges.

                                      /s/ Clyde H. Hamilton
                                    Judge Clyde H. Hamilton
                                Senior United States Circuit Judge

June 10, 2005
