William B. Hanley, McCormick, Kidman & Behrens, Costa Mesa, Cal., for defendants-appellants.

Richard C. Turner, Mary K. Lenahan, and Robert D. Brugge, Spray, Gould & Bowers, Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before D.W. NELSON and REINHARDT, Circuit Judges, and SINGLETON,* District Judge.

State Farm Mutual Automobile Insurance Co. ("State Farm") brought this action in federal district court seeking a declaratory judgment. State Farm alleged that a policy of automobile insurance it had issued to Walter Allen Davis ("Davis") did not cover an incident where Davis shot and injured Charles Keukelaar ("Keukelaar"), the driver of another vehicle. Davis was a passenger in his own vehicle, a 1984 GMC van, when the incident occurred. The district court had jurisdiction based on diversity of citizenship, 28 U.S.C. Sec. 1332(a)(1) (1988). We have jurisdiction under 28 U.S.C. Sec. 1291 (1988).

In this case we are asked to determine whether a highway shooting "result[ed] from the ownership, maintenance or use" of the assailant's automobile. On the specific facts of this case, we conclude that the shooting did result from the use of the vehicle and therefore reverse a summary judgment absolving the automobile insurance carrier from liability to the Keukelaars.

The facts are not in dispute. Davis, a United States Marine, purchased a 1984 GMC van while residing in the State of Tennessee. State Farm issued Davis a policy of automobile insurance, covering the vehicle. Thereafter, Davis was transferred to the United States Marine Corps Air Station, Tustin, California. He retained the vehicle with its Tennessee license and registration, as well as his Tennessee driver's license.

Davis was scheduled for sea duty and wished to store some personal property including several handguns at his mother's home in San Jose, California. On November 23, 1984, Davis and two fellow Marines, Brian Painter ("Painter") and David Roberts ("Roberts"), were transporting this property in Davis's GMC van at the time of the shooting. Painter was driving and Davis was riding in the front passenger seat. Roberts occupied the rear seat. The three were proceeding north on Interstate Highway 5 when they were passed by a Corvette driven by Keukelaar. Shellie Keukelaar ("Shellie"), who was pregnant, was riding as a passenger in the Corvette. Davis told Painter to overtake and pass the Corvette. As the van approached the rear of the Corvette, Davis fired a .44 caliber revolver out his window striking and shattering the rear window of the Corvette. The bullet continued into the passenger compartment and struck Keukelaar in the back of the head rendering him unconscious. Shellie was able to bring the Corvette to a stop. Davis and his friends continued driving. The Keukelaars eventually contacted state authorities. Sometime thereafter, Davis and his friends were apprehended. Davis was subsequently convicted of criminal assault in state court.

The Keukelaars sued Davis and Painter in state court and State Farm brought this action in federal district court seeking a declaration that it did not provide coverage to Davis and Painter for the Keukelaars' injuries. State Farm sought summary judgment on the ground that the injuries were not "caused by an accident1 resulting from the ownership, maintenance or use of [Davis's] car...." The district court agreed and entered judgment in State Farm's favor. This appeal followed.

"A grant of summary judgment is reviewed de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989); cert. denied, --- U.S. ----, 110 S. Ct. 3217, 110 L. Ed. 2d 664 (1990). The appellate court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the law." Hydro Systems, Inc. v. Continental Ins. Co., 929 F.2d 472, 473 (9th Cir.1991). We also review issues of insurance contract interpretation de novo. See American States Ins. Co. v. Borbor, 826 F.2d 888, 890 (9th Cir.1987).

At the time of the shooting, Davis had a current State Farm insurance policy issued and delivered to Davis in Tennessee. The shooting occurred in California where the Keukelaars reside. In the trial court and in their briefs in this court, both parties proceeded on the assumption that California law governed the interpretation of the insurance policy. During oral argument State Farm argued for the first time that the law of Tennessee governs the interpretation of the provisions of its policy.2 To resolve this question we look to the choice of law rules of California, the forum state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97, 61 S. Ct. 1020, 1021-22, 85 L. Ed. 1477 (1941); Federal Insurance Co. v. Scarsella Bros., Inc., 931 F.2d 599, 602 (9th Cir.1991).

California Civil Code Sec. 1646 (1985) provides:

Law of Place. A contract is to be interpreted according to the law and usage of the place where it is to be performed; or, if it does not indicate a place of performance, according to the law and usage of the place where it is made.

There is no need to choose between the laws of California and Tennessee if they are identical. Hurtado, 11 Cal. 3d at 580, 114 Cal.Rptr. at 109, 522 P.2d at 669; International Serv. Ins. Co. v. Gonzales, 194 Cal. App. 3d 110, 116, 239 Cal. Rptr. 341, 344 (1987). We determine de novo the applicable law of California and Tennessee in this diversity case. Salve Regina College v. Russell, --- U.S. ----, 111 S. Ct. 1217, 1221, 113 L. Ed. 2d 190 (1991); In Re Complaint of McLinn, 739 F.2d 1395 (9th Cir.1984) (en banc). In making this determination we look to all available data. See West v. American Tel. & Tel. Co., 311 U.S. 223, 237, 61 S. Ct. 179, 183, 85 L. Ed. 139 (1940). In the absence of determinative decisions of each state's highest court we look to intermediate court decisions. State Farm Fire and Casualty Co. v. Abraio, 874 F.2d 619, 621 (9th Cir.1989). We also look to well-reasoned decisions from other jurisdictions. Takahashi v. Loomis Armored Car Serv., 625 F.2d 314, 316 (9th Cir.1980). Ultimately we must use our own best judgment in predicting how the respective state supreme courts would interpret this insurance contract. If they would reach inconsistent decisions then we must apply California's choice of law rules to resolve the conflict.

We have not been cited to any Tennessee or California court decisions that are directly on point. Nevertheless, we have reviewed analogous cases and are satisfied that the laws of both states are the same. Compare State Farm Mutual Automobile Ins. Co. v. Partridge, 10 Cal. 3d 94, 109 Cal. Rptr. 811, 514 P.2d 123 (1973) (handgun accidentally discharged wounding a passenger while vehicle was being driven off-road; accident held to arise out of the use of the vehicle and therefore was within automobile insurance coverage) with Travelers Ins. Co. v. Aetna Casualty & Sur. Co., 491 S.W.2d 363 (Tenn.1973) (shotgun accidentally discharged while being loaded into vehicle; accident held to arise out of loading and use of vehicle and therefore was within automobile coverage).

State Farm does not cite any Tennessee authority for the proposition that Tennessee interprets insurance contracts differently than California. However, it does argue that all of the California cases discussing fact situations similar to the one in this case deal with policy provisions which cover bodily injury caused by an occurrence "arising out of the use" of a vehicle while the policy in this case covers bodily injury caused by an accident "resulting from the use" of a vehicle.

In its brief State Farm argued that the phrase "arising out of the use" of an insured vehicle provides broader coverage than the phrase "resulting from the use" of an insured vehicle. It cites no authority for this proposition. In response, the Keukelaars argued in their reply brief that a California statute, California Insurance Code Sec. 11580.1(a) (1988), requires automobile policies issued in California to cover liability "arising out of the use" of an insured vehicle. State Farm disputed at oral argument the applicability of this statute to an insurance policy issued and delivered in Tennessee. See Gonzales, 194 Cal. App. 3d 110, 239 Cal. Rptr. 341; Wheeling v. Financial Indemn. Co., 201 Cal. App. 2d 36, 19 Cal. Rptr. 879 (1962).

We find it unnecessary to resolve this last minute dispute between the parties regarding the applicability of Sec. 11580.1(a). We are satisfied that both California and Tennessee 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. Travelers, 491 S.W.2d at 366; Partridge, 10 Cal. 3d at 100, 109 Cal.Rptr. at 815, 514 P.2d at 127. This slight causal connection in our view is also what reasonable men and women would understand the phrase "resulting from the use" of an insured vehicle to mean. See AIU Ins. Co. v. Superior Court, 51 Cal. 3d 807, 818, 274 Cal. Rptr. 820, 831, 799 P.2d 1253, 1264 (1990). We are also satisfied that it is the meaning most consistent with the language and intent of the contracting parties and comports with the usual, natural and ordinary meaning of the terms in question. See Blaylock & Brown Constr., Inc. v. AIU Ins. Co., 796 S.W.2d 146, 149 (Tenn.App.1990). Having concluded that the law of California and the law of Tennessee are the same in all relevant particulars we apply the law of the forum state, California, to the issues presented in this case.

The policy which State Farm issued to Davis contains the following relevant language:

1. pay damages which an insured becomes legally liable to pay because of:

a. bodily injury to others.

. . . . .

caused by accident resulting from the ownership, maintenance or use of your car....

Policy No. 355 5075-D23-42A, Policy Form 9942.2 Sec. 1 (emphasis added).

In Partridge, the Supreme Court of California addressed similar language in an automobile insurance policy. The court found coverage where a gun discharged injuring a passenger while the vehicle was being driven off-road in pursuit of rabbits. The court noted that a "use" of a vehicle need not be the proximate cause of an injury in order to require coverage.3 It was sufficient if some minimal causal connection between the vehicle and an injury existed. Partridge, 10 Cal. 3d at 100 n. 7, 109 Cal. Rptr. at 815 n. 7, 514 P.2d at 127 n. 7.

In addition, the court recognized that other courts had denied coverage in "shooting" cases where there was absolutely no causal relationship between the firing of the gun and the use of the automobile but concluded that coverage had been found where the insured vehicle did bear some, albeit slight, causal connection with the shooting injury. Id. at 101 n. 8, 109 Cal. Rptr. at 816 n. 8, 514 P.2d at 128 n. 8.

In a more recent case, an intermediate California court of appeal found coverage where some boys were throwing eggs from a moving vehicle and injured a pedestrian. The court noted that the movement of the vehicle enhanced the speed of the eggs thrown and therefore the risk of injury to those hit. The court also noted that the vehicle aided the boys in initially avoiding capture while "egging." National Am. Ins. Co. v. Insurance Co. of N. Am., 74 Cal. App. 3d 565, 140 Cal. Rptr. 828 (1977).

These cases persuade us that the Supreme Court of California would find coverage in this case. Davis's shooting of Keukelaar was not merely incidental to his use as a passenger of the GMC van. At the time of the shooting, Keukelaar was proceeding rapidly down the highway in his Corvette. Had Painter not heeded Davis's request to overtake and pass the Corvette, Davis would not have been in a position to shoot at Keukelaar. Further, it is not unreasonable to assume that Davis counted on the speed of the van to escape after the shooting. Under the facts of this case, the van was more than minimally connected with the injuries Keukelaar suffered.

We are reinforced in this conclusion, by a decision of the Minnesota Supreme Court, based on similar facts, which we believe the Supreme Court of California would find persuasive. See Continental Western Ins. Co. v. Klug, 415 N.W.2d 876 (Minn.1987).4 The facts of Klug are particularly instructive. Klug, while driving his vehicle home from work, was chased by Bahe a significant distance down the highway. Bahe menaced Klug with a shotgun before shooting him. The court considered three factors significant in determining whether coverage existed: first, the causal nexus between the vehicle and the shooting; second, whether an intervening act broke the causal link; and third, whether the assailant was using the vehicle for transportation at the time of the shooting and whether the driving facilitated the shooting. The court found coverage and concluded that the vehicle was an active accessory to the shooting since Bahe had to keep up with Klug and drive for two miles in order to shoot him.

The court rejected the argument that Bahe's intentional act in shooting Klug broke the causal link. It reasoned that had Bahe drove ahead and waited to ambush Klug, the causal link might have been broken. However, it concluded that Bahe's driving and shooting were inextricably linked. In making this determination the court apparently reasoned that Bahe was using his car to keep abreast of Klug at the time he shot him. Finally, the court concluded that Bahe was not merely using his vehicle as a gun rest or as the situs for an assault, but as a necessary part of the assault. The court noted that Bahe used his car to maneuver himself and Klug into position for the successful assault. Id. at 878-79.

The same three considerations are present in this case. Painter had to chase Keukelaar so that Davis could shoot at him. Davis did not leave the vehicle, but shot Keukelaar while both were traveling down the highway. Finally, Painter had to drive the van into position next to the Corvette, giving Davis the opportunity to fire his gun. The presence of these factors supports our conclusion that the vehicle was more than incidental to this shooting.

We find the cases cited by State Farm distinguishable or unpersuasive.5 Most involve situations where a tortfeasor used a vehicle to get to the scene of the tort but had exited the vehicle before committing the tort. Illustrative are Truck Ins. Exch. v. Webb, 256 Cal. App. 2d 140, 63 Cal. Rptr. 791 (1967) (driver used vehicle to transport boxes to building, removed them and started fire which damaged building) and United Services Auto. Ass'n v. Ledger, 189 Cal. App. 3d 779, 234 Cal. Rptr. 570 (1987) (two motorists in separate vehicles became involved in a dispute while driving down the highway, stopped and exited their respective vehicles in order to fight and one stabbed the other).

Closely related are cases in which the vehicle is at rest at the time of the incident and plays no real part in bringing about the harm. See Aetna Casualty and Sur. Co. v. Safeco Ins. Co., 103 Cal. App. 3d 694, 163 Cal. Rptr. 219 (1980). We agree with the Supreme Court of Minnesota that a tortfeasor leaving his vehicle prior to committing the tort might serve to break the causal nexus between the use of the vehicle and the subsequent tort. In the case of the vehicle at rest, we might conclude that there was absolutely no causal relationship between the use of the vehicle and the subsequent shooting. Partridge, 10 Cal. 3d at 101 n. 8, 109 Cal. Rptr. at 816 n. 8, 514 P.2d at 128 n. 8. Neither of these situations is present here.

Additional cases from this and other jurisdictions have reached varying decisions in deciding whether shooting incidents involved the "use" of an insured vehicle. Those that deny coverage are in our view distinguishable. First, there are the cases similar to those discussed above in which an assailant left his vehicle before assaulting the other party. See, e.g., Nationwide Mut. Ins. Co. v. Brown, 779 F.2d 984 (4th Cir.1985); State Farm Mut. Auto. Ins. Co. v. Fernandez, 767 F.2d 1299 (9th Cir.1985); Detroit Auto. Inter-Ins. Exch. v. Higginbotham, 95 Mich.App. 213, 290 N.W.2d 414 (1980). Second are the closely related cases where the vehicle merely provides a situs for the tort. See, e.g., Fowler v. State Farm Mut. Auto. Ins. Co., 548 So. 2d 830 (Fla.App.1989); Vanguard Ins. Co. v. Cantrell, 18 Ariz.App. 486, 503 P.2d 962 (1972). Finally, there are the cases from jurisdictions that require a much stronger causal relationship between the injury and the use of the vehicle than California requires. See, e.g., Government Employees Ins. Co. v. Melton, 357 F. Supp. 416 (D.S.C.1972), aff'd, 473 F.2d 909 (4th Cir.1973); Wausau Underwriters Ins. Co. v. Howser, 727 F. Supp. 999 (D.S.C.1990) (recognizing that California and Minnesota require less of a causal nexus to establish that an injury arises out of the use of an insured vehicle than is required in other jurisdictions such as South Carolina).

In conclusion, we are satisfied that Painter's and Davis's use of the GMC van insured by State Farm had more than a minimal causal connection with the incident leading to Keukelaar's injuries.

We therefore REVERSE the decision of the District Court and REMAND this case in order for that court to consider State Farm's other defenses.