Present: Hassell, C.J., Keenan, 1 Koontz, Lemons, Goodwyn, and
Millette, JJ., and Russell, S.J.
CHARLES SIMPSON OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 090596 April 15, 2010
VIRGINIA MUNICIPAL LIABILITY POOL, ET AL.
FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
Thomas V. Warren, Judge
This is an appeal from the final order in a declaratory
judgment proceeding. The circuit court was called upon to
determine which, if any, of three automobile insurance
policies afforded coverage to a Deputy Sheriff injured while
trying to subdue an offender being taken into custody.
Facts and Proceedings
The essential facts are undisputed, although the parties
differ as to the inferences and legal conclusions to be drawn
from them. During the afternoon of February 12, 2004, Malcolm
Estes Robertson, Jr., (Robertson) was driving a 1988 Blazer
westbound on Route 460 in Nottoway County. Trooper James Inge
of the Virginia State Police (Inge) was parked in the median
of the four-lane divided highway, operating a stationary
radar. As Robertson’s Blazer passed Inge, the radar
registered 68 miles per hour in a 55 mile per hour zone. Inge
1
Justice Keenan participated in the hearing and decision
of this case prior to her retirement from the Court on March
12, 2010.
activated his siren and emergency lights and pursued the
Blazer. Robertson made a series of evasive maneuvers. He
reversed direction on the highway at an interchange and headed
eastbound; after pretending to come to a stop, he suddenly
accelerated and sped away at speeds up to 90 miles per hour,
visibly endangering other motorists. 2 Inge made a radio call
for assistance.
Deputy Charles Edward Simpson, of the Nottoway County
Sheriff’s Office (Simpson) responded to the call. Simpson
also activated his emergency lights and siren and approached
Inge from behind as Inge was pursuing Robertson in the left
lane. Simpson passed both vehicles on the right, intending to
get in front of them and force Robertson to slow to a stop.
Robertson tried to block Simpson from passing him and struck
the left side of Simpson’s cruiser several times. At that
point Inge passed both Robertson and Simpson on the right,
veered left and forced Robertson off the road into the grassy
median. Robertson lost control of his vehicle, “fishtailed”
in the grassy area, struck the left side of Inge’s cruiser and
all three vehicles came to a stop.
2
Robertson admitted at trial that his driver’s permit was
suspended at the time and that he was drinking from a 40-ounce
bottle of beer when pursued.
2
Robertson emerged from his vehicle and almost
simultaneously both Inge and Simpson emerged from their
cruisers. None of the three had been injured at that time.
Robertson took a few steps away from his vehicle and moved
toward Simpson, who was approaching him. Inge, whose driver’s
door was jammed by Robertson’s vehicle, left his cruiser
through the right side door, came around both vehicles and
approached Robertson from behind. Communication between the
three was impeded by the noise of the sirens. Just as Simpson
and Robertson came together, Inge tackled Robertson from
behind and all three men fell to the ground together.
While they were on the ground, other deputies and
troopers were arriving at the scene. Simpson tried to get
Robertson’s arm behind him to apply handcuffs. Although
Robertson did not offer resistance, Simpson suffered an injury
to his left shoulder while so engaged. Another trooper, who
had just arrived, succeeded in handcuffing Robertson. Simpson
went out to the highway to direct traffic around the scene.
At that point, Simpson, who was left-handed, found himself
unable to raise his left arm.
Simpson brought a civil action against Robertson to
recover damages for his injuries. Robertson’s Blazer was
covered by a liability policy issued by Government Employees
Insurance Company (GEICO). GEICO, by letter, denied coverage
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and refused to defend Robertson on two grounds: (1) Simpson’s
injuries did not arise out of the “use” of Robertson’s insured
vehicle, and (2) GEICO’s policy excluded coverage for injuries
caused intentionally by the insured. Those assertions, if
successful at trial, would make Robertson an “uninsured
motorist” with respect to Simpson’s claim. GEICO’s
contentions therefore involved two other insurers, Virginia
Municipal Liability Pool (VMLP) and National Grange Mutual
Insurance Company (NGM). VMLP is a group self-insurance pool,
created pursuant to statute, Code §§ 15.2-2700 et seq., that
provides coverage for vehicles owned by Nottoway County and
other public bodies. VMLP issued a policy that covered the
Sheriff’s cruiser Simpson was operating on February 12, 2004.
NGM issued a family automobile policy covering Simpson’s
personal vehicle. Both the VMLP policy and the NGM policy
afforded uninsured motorist coverage.
VMLP filed this proceeding as a petition for declaratory
judgment, naming Simpson, Robertson, GEICO and NGM as parties.
VMLP took the position that Simpson was not covered by its
policy because (1) Simpson was not “occupying” the Sheriff’s
cruiser at the time of his injury, and (2) Robertson was not
“using” his Blazer at the time of Simpson’s injury.
Therefore, VMLP contends, Robertson was not an uninsured
motorist at the time of Simpson’s injury.
4
NGM took the position that its responsibility under
Simpson’s family policy would arise only out of the
“ownership, maintenance or use of an uninsured motor vehicle”
and that neither Simpson nor Robertson was using any vehicle
at the time Simpson sustained his injuries. GEICO’s position
was consistent with its initial letter denying coverage.
The circuit court heard the evidence ore tenus.
Robertson testified that he was “boxed in” and knew he could
not escape, that he turned his engine off and walked away from
his vehicle with his arms raised in an attitude of surrender
and was holding his keys in his hand when he was tackled from
behind. Inge and Simpson testified that they did not see
Robertson’s arms raised, but neither testified that he offered
resistance or attempted to flee on foot. The accounts of the
witnesses varied as to the distance Robertson had moved away
from his vehicle when he was tackled. 3
The circuit court ruled that none of the three
participants was “using” or “occupying” a motor vehicle when
Simpson was injured because the pursuit was over, the drivers
were no longer using vehicles to “escape or apprehend,” and
the use of vehicles played no role in the injury Simpson
3
The circuit court found that Robertson was tackled
approximately ten feet from his vehicle. That finding is
supported by credible evidence and will not be disturbed on
appeal.
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sustained while attempting to place handcuffs on Robertson
while he was lying on the ground. The court entered a final
order ruling that none of the three insurers had a duty to
defend Robertson or afford coverage to Simpson. We awarded
Simpson an appeal.
Analysis
Simpson assigns error to two rulings by the circuit
court: (1) that when Simpson was injured, Robertson was not
“using” or “occupying” his vehicle as those terms are employed
under the relevant policies and the law of Virginia, and (2)
that when Simpson was injured, he was not “using” or
“occupying” his Sheriff’s cruiser as those terms are so
construed. The circuit court’s findings of historical fact
are supported by credible evidence and are not plainly wrong.
Accordingly, they will not be disturbed on appeal. Code
§ 8.01-680; Hudson v. Pillow, 261 Va. 296, 302, 541 S.E.2d
556, 560 (2001). See also Keener v. Keener, 278 Va. 435, 441,
682 S.E.2d 545, 548 (2009). Simpson’s appeal questions the
circuit court’s legal conclusions. We review such questions
de novo. Turner v. Caplan, 268 Va. 122, 125, 596 S.E.2d 525,
527 (2004).
Cases involving the terms “use” and “occupancy” in
automobile insurance policies present to the courts such an
infinite variety of factual patterns that it is impossible to
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formulate bright-line rules of universal application or a list
of factors dispositive of the issue in every case. Slagle v.
Hartford Insurance Company, 267 Va. 629, 636, 594 S.E.2d 582,
586 (2004). Nevertheless, some general standards have evolved
in our case law to determine when “use” and “occupancy” begin
and end. We observed in Slagle that “the critical inquiry is
whether there was a causal relationship between the incident
and the employment of the insured vehicle as a vehicle.” Id.
(emphasis added). 4
Thus, in Travelers Insurance Co. v. LaClair, 250 Va. 368,
463 S.E.2d 461 (1995), where a motorist stopped by a police
officer on a highway shot the officer while the motorist was
still partially within his stopped vehicle, we held that the
requisite causal relationship between the incident and the
motorist’s employment of his automobile as a vehicle did not
exist. Reversing a judgment for the officer, we observed that
“the natural and ordinary meaning of 'use' of a private,
passenger motor vehicle does not contemplate its utilization
as a mobile or stationary pillbox or fortress, or as a shield,
or as an outpost from which an assailant may inflict
intentional injury with a firearm.” Id. at 373, 463 S.E.2d at
4
No serious contention is made that either Simpson or
Robertson was “occupying” a vehicle at the time of Simpson’s
injury. We therefore confine our discussion to the question
of “use.”
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464. Thus, the natural and ordinary purpose of automobile
insurance, objectively and reasonably within the contemplation
of the parties to the insurance contract at its inception,
must be taken into consideration when determining the scope of
the coverage. Furthermore, consideration must be given to
what the insured person was doing when he was injured, along
with his purpose and intent, in determining whether he was in
such a relationship to the vehicle as to be injured in its
“use.” State Farm Mut. Auto. Ins. Co. v. Powell, 227 Va. 492,
500-01, 318 S.E.2d 393, 397 (1984).
A very different fact pattern was presented by State Farm
Mutual Automobile Insurance Co. v. Rice, 239 Va. 646, 391
S.E.2d 71 (1990). There, two men embarked on a hunting trip
in an insured jeep. Arriving at the point where they intended
to begin their hunt, they sat in the jeep, drinking coffee
until dawn provided sufficient light to begin their hunt.
Both men then alighted from the jeep. The passenger indicated
that he intended to walk up to a ridge to hunt and started to
walk in that direction. The insured driver remained outside
the jeep, reached inside and picked up his rifle, loaded it
and replaced it on the driver’s seat while he drank another
cup of coffee, leaving the driver’s side door open. He then
placed the coffee thermos back into the jeep and reached
inside to pick up his rifle, which accidentally discharged,
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firing a bullet through the passenger side door that struck
the departing passenger. Id. at 647-48, 391 S.E.2d at 71-72.
We held on those facts that there was a sufficient nexus
between the injury and the use of the jeep to establish that
the injury arose out of the vehicle’s “use.” The enterprise
in which the jeep was employed, to carry the men and their
equipment to the intended hunting site, was still in progress.
The passenger, although walking away, was engaged in that
enterprise and the driver was still using the jeep when his
rifle discharged. In reaching that conclusion, we adhered to
the principles stated in Powell. The jeep was being used as a
vehicle and the enterprise in which it was engaged was not
such as to be objectively and reasonably outside the
contemplation of the parties to the contract of insurance.
See id. at 649-50, 391 S.E.2d at 72-73.
In Insurance Company of North America v. Perry, 204 Va.
833, 134 S.E.2d 418 (1964), a Norfolk police officer parked
his cruiser and walked 164 feet away from it to serve a
warrant when he was fatally injured by a car driven by an
uninsured motorist. Id. at 834, 134 S.E.2d at 419. We
reversed a judgment in favor of the officer’s estate against
the city’s uninsured motorist carrier on the ground that the
officer was not “using” the city’s police cruiser when he was
injured. Id. at 838, 134 S.E.2d at 421. There was no nexus
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between his earlier use of the cruiser and the injury he
sustained.
In Slagle, the manager of a construction company’s
operations at a work site along a highway was engaged in
directing the driver of his company’s tractor-trailer as it
backed out of a driveway onto the highway and ultimately into
a position to unload a large piece of construction equipment
at the work site. Standing 10 to 30 feet behind the tractor-
trailer, the manager directed its driver by hand signals as
the driver watched him through his side-view mirror. While so
engaged, the manager was struck and injured by an underinsured
motorist. 267 Va. at 631-32, 594 S.E.2d at 583-84. We
reversed a judgment in favor of the insurer, holding that the
manager, although outside the tractor-trailer, was using it as
a vehicle when he was injured. He was employing it in
furtherance of his mission to transport the heavy construction
equipment to the work site. We noted that the driver had
activated his emergency flashers and back-up alarm but there
was no evidence that they created a safety zone for the
manager or that he had relied on them. Our decision rested
solely on the fact that the manager was directing the movement
of the tractor-trailer and was using it as a vehicle for the
accomplishment of his work. Such “use” was clearly within the
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objective and reasonable contemplation of the parties to the
contract of insurance. Id. at 637-38, 594 S.E.2d at 586-87.
Applying the standards illuminated by those cases to the
present case, we agree with the circuit court’s analysis.
Although Simpson’s siren and flashing lights were still
operating when he left his cruiser to confront Robertson,
there is no evidence that they were used or relied upon in any
way to accomplish Simpson’s purpose at the time he was
injured. His “mission” was to pursue Robertson, bring his
dangerous activity to a stop, arrest him, and take him into
custody. By the time Simpson was injured, all those purposes
had been accomplished. The chase ended when Robertson’s
Blazer rammed Inge’s cruiser, bringing both to a stop.
Robertson’s flight ended when he left his vehicle and walked
toward Simpson. Robertson was unquestionably in custody when
he was tackled and taken to the ground. Simpson’s injury
occurred after those events. Thus, neither Simpson’s cruiser
nor Robertson’s Blazer was in “use” as a vehicle at that time.
Conclusion
The scramble among the three men on the ground was not an
event reasonably and objectively such as to have been within
the contemplation of the parties to the contracts of
automobile insurance involved here. The circuit court
correctly held that the “use” of motor vehicles played no role
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in the injuries Simpson sustained. Those injuries did not,
therefore, arise out of the use or occupancy of any motor
vehicle and none of the three automobile insurance policies
under consideration here affords coverage for them.
Accordingly, we will affirm the declaratory judgment appealed
from.
Affirmed.
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