Nationwide Mutual Insurance v. Smelser

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

NATIONWIDE MUTUAL INSURANCE 
COMPANY, an Ohio Corporation,
Plaintiff-Appellee,
v.
 No. 01-1295
JO-ANNA SMELSER, Executrix of the
Estate of Mary B. Smelser,
Deceased; EUGENE SMELSER,
Defendants-Appellants.

Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
James E. Bradberry, Magistrate Judge.
(CA-00-88-4)

Argued: September 27, 2001

Decided: July 12, 2002

Before WILKINS and WILLIAMS, Circuit Judges, and
HAMILTON, Senior Circuit Judge.

Reversed and remanded with instructions by unpublished per curiam
opinion.

COUNSEL

ARGUED: Jeremiah A. Denton, III, Virginia Beach, Virginia, for
Appellants. Thomas Aubrey Fitzgerald, II, STEIN & SMITH, P.C.,
Newport News, Virginia, for Appellee.
2 NATIONWIDE MUTUAL INS. v. SMELSER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

OPINION

PER CURIAM:

Jo-Anna Smelser and Eugene Smelser (collectively, the Smelsers)
appeal a district court’s1 order granting summary judgment to Nation-
wide Insurance Company (Nationwide) in this declaratory judgment
action brought by Nationwide. Nationwide sought a declaration that
it was not liable under the uninsured motorist provisions of a "Family
Automobile Policy" of insurance issued to Eugene Smelser (the pol-
icy or the Nationwide policy) for injuries sustained by Mary Smelser
when her purse was snatched by an unidentified assailant in a moving
vehicle. The only issue presented on appeal was whether, as a matter
of Virginia law, Mary Smelser’s injuries arose out of the "use" of the
car in which her assailant rode. Resolution of this issue required the
interpretation and application of Virginia law in circumstances not
previously addressed in the Virginia courts. Accordingly, we
requested that the Supreme Court of Virginia exercise its certification
jurisdiction pursuant to Article VI, Section 1 of the Virginia Constitu-
tion and decide whether Mary Smelser’s injuries arose out of the use
of the car in question. The Supreme Court of Virginia has answered
the certified question in the affirmative. We therefore reverse the
judgment of the district court in favor of Nationwide and remand this
case for entry of summary judgment in favor of the Smelsers.

I.

Mary Smelser, now deceased,2 was the wife of Eugene Smelser, the
holder of the Nationwide policy.3 On March 27, 1999, Mary Smelser,
1
By consent of the parties, the decision below was rendered by a mag-
istrate judge. 28 U.S.C.A. § 636(c).
2
Mary Smelser’s death was unrelated to the events recounted here. Jo-
Anna Smelser is the executrix of Mary’s estate.
3
The facts recited here are those relied on by the Supreme Court of
Virginia in answering the certified question.
 NATIONWIDE MUTUAL INS. v. SMELSER 3
then 74, and her daughter, Jo-Anna Smelser, drove to the Williams-
burg Outlet Mall in Virginia to go shopping. Jo-Anna Smelser parked
the car in the mall parking lot, and her mother exited from the passen-
ger side. Mary Smelser walked from the side to the rear of the car and
turned to walk toward the mall. As she did so, a car driven by an
unknown male accelerated rapidly from behind her and pulled along-
side her on her left. A second unknown male reached out from the
passenger-side window of the car and grasped Mary Smelser’s purse
by the strap, which she had slung over her left shoulder. The man
pulled the purse, and Mary Smelser with it, toward the interior of the
car. From this point, Mary Smelser was dragged by her purse strap
approximately ten feet alongside the car; she then fell to the ground.

Mary Smelser suffered fractures of her left shoulder and pelvis in
the incident. Two orthopaedic surgeons provided sworn affidavits in
which they opined that the extent of Mary Smelser’s injuries was con-
sistent with her account of being pulled into the side of a moving
vehicle. One of the surgeons also opined that Mary Smelser’s injuries
were consistent with her account of being dragged approximately ten
feet, then dropped to a parking lot surface.

II.

An endorsement to the Nationwide policy provides that Nationwide
will pay all sums that an insured is "legally entitled to recover as dam-
ages from the owner or operator of an uninsured motor vehicle
because of bodily injury sustained by the Insured . . . caused by acci-
dent and arising out of the ownership, maintenance, or use of such
uninsured motor vehicle." (J.A. at 44.) The parties do not dispute that,
under the terms of the policy, Mary Smelser was an insured when her
injuries occurred. The vehicle in question was never identified, which
renders it an uninsured motor vehicle under the terms of the policy.
Thus the only issue in this appeal is whether, under Virginia law,
Mary Smelser’s injuries arose out of the "use" of an uninsured motor
vehicle under the uninsured motorist coverage clause in the policy.

As noted above, because it was not clear whether under Virginia
law Mary Smelser’s injuries arose out of the use of an uninsured
motor vehicle in these circumstances, we certified the following ques-
tion to the Supreme Court of Virginia:
4 NATIONWIDE MUTUAL INS. v. SMELSER
Whether, under the facts [described above], Mary Smelser’s
injuries arose out of the use of an uninsured motor vehicle
for purposes of uninsured motorist provisions in the Nation-
wide policy?

The Supreme Court of Virginia accepted the certified question and
answered it in the affirmative, stating that

Mrs. Smelser’s injuries were causally related to the employ-
ment of the uninsured vehicle as a vehicle because the force
from the vehicle’s movement directly contributed to her
injuries. Thus, we conclude that Mrs. Smelser’s injuries
arose out of the "use" of the uninsured motor vehicle under
the UM/UIM provisions in the Nationwide policy.

Nationwide Mut. Ins. Co. v. Smelser, No. 012841, 2002 WL 1270213,
at *4 (Va. June 7, 2002).4

III.

Because Mary Smelser’s injuries arose out of the use of an unin-
sured motor vehicle, the judgment of the district court in favor of
Nationwide must be reversed. The only issue in the proceedings
before the district court was whether those injuries arose out of the
use of the uninsured motor vehicle in question. Judgment should
therefore be entered for the Smelsers on remand. The order of the dis-
trict court is

REVERSED AND REMANDED WITH INSTRUCTIONS.
4
The Supreme Court of Virginia’s opinion answering the certified
question contains the controlling analysis of Virginia law, and we need
not restate that analysis here.