Present: All the Justices
NORMAN H. SLAGLE
OPINION BY
v. Record No. 031052 JUSTICE LAWRENCE L. KOONTZ, JR.
April 23, 2004
HARTFORD INSURANCE COMPANY
OF THE MIDWEST
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
E. Preston Grissom, Judge
In this appeal of a declaratory judgment action, we
consider whether an injured person who did not previously occupy
or immediately intend to occupy an insured motor vehicle was
“using” the insured motor vehicle within the meaning of Code
§ 38.2-2206(B) at the time he was injured and, thus, entitled to
underinsured motorist coverage.
BACKGROUND
The material facts are undisputed. On November 18, 1999,
at approximately 5:00 a.m., Norman H. Slagle, the vice-president
and construction manager of Vico Construction Corporation
(Vico), met Tim Askew, an employee of Vico, at the corporation’s
road widening project on Kempsville Road in the City of
Chesapeake. Slagle’s mission was to indicate to Askew where a
large piece of construction equipment was to be located after it
was unloaded from a tractor-trailer Askew had driven to the
site. The tractor-trailer was owned by Vico and insured under a
commercial automobile insurance policy issued by Hartford
Insurance Company of the Midwest (Hartford), providing
$1,000,000 in uninsured and underinsured motorist coverage.
Along the course of the road widening project, Kempsville
Road consisted of two through traffic lanes flanked by right and
left turn lanes. In order to unload the construction equipment
from the tractor-trailer at the desired location, it was
necessary for Askew to back the vehicle from a driveway and then
along the right side of Kempsville Road. To assist Askew in
accomplishing that maneuver, Slagle stood behind the tractor-
trailer and gave hand signals that Askew was able to observe
through the tractor’s side view mirror. Askew activated the
emergency flashers located on the tractor and at the rear of the
trailer. The vehicle also had an audible back-up alarm, which
was activated when Askew began to back the vehicle.1 Although
Askew had portable orange hazard triangles available in the
vehicle, he did not utilize them.
While Slagle was directing the tractor-trailer into the
desired position, he was struck by a vehicle driven by Liberty
G. Billones. At that time, Slagle was standing 10 to 30 feet
behind the tractor-trailer, and Billones was traveling in the
1
The tractor was also equipped with a pole-mounted,
rotating amber caution light. The record is unclear whether
this light was activated. However, as will become clear,
whether this light was activated at the time of the accident is
not pertinent to our resolution of this appeal.
2
far right lane of Kempsville Road. Slagle subsequently brought
suit against Billones for injuries he suffered as a result of
the accident. Billones’ insurance company tendered the full
amount of liability insurance coverage available under her
policy. Hartford refused to also provide underinsured motorist
coverage to Slagle under its policy issued to Vico.
While his suit against Billones was pending, Slagle filed a
motion for declaratory judgment against Hartford seeking a
declaration that he was an insured under the underinsured
motorist provisions of the policy Hartford had issued to Vico.
Hartford responded, denying that Slagle was an insured under the
terms of the policy. Specifically, Hartford asserted that
Slagle was not an insured under the policy because he “was not
an operator or occupant of [the insured] vehicle at the time of
the accident. He was a pedestrian.”
The matter ultimately matured for resolution at a hearing
before the trial court. By agreement of the parties, the trial
court received into evidence and considered a stipulation of
facts, a deposition of Billones, and ore tenus testimony from
Slagle reflecting the circumstances under which the accident
occurred. Slagle and Hartford filed motions for summary
judgment and supporting briefs.
On December 6, 2002, the trial court issued an opinion
letter stating that “Code of Virginia §38.2-2206(B) affords
3
[Slagle] no relief under the facts presented in this case.” On
February 7, 2003, the trial court entered a final order awarding
summary judgment to Hartford.2 We awarded Slagle this appeal.
DISCUSSION
Slagle’s claim to underinsured coverage under Hartford’s
policy in this case is premised upon the mandate of Code § 38.2-
2206(A) that motor vehicle liability insurance policies provide
uninsured and underinsured coverage to persons insured under the
policies. That Billones’ vehicle was underinsured is not at
issue. The parties’ dispute is whether Slagle is an insured
under Hartford’s policy covering Vico’s tractor-trailer. Code
§ 38.2-2206(B), in pertinent part, defines “insured” as “any
person who uses the motor vehicle to which the policy applies”
with the consent of the named insured. (Emphasis added).
Consent is not an issue. Thus, the focus of our analysis in
this case is whether Slagle was using the tractor-trailer in
question at the time he was struck by Billones’ vehicle.
Determining the circumstances under which persons not
occupying or actually operating the insured vehicle at the time
2
Judge Frederick H. Creekmore, Sr. presided during the
evidentiary hearing on the parties’ cross-motions for summary
judgment and issued the opinion letter stating the rationale
underlying the ruling in this case. Judge Creekmore also
oversaw the post-judgment proceedings. The record does not
disclose the reason for Judge Grissom entering the final
judgment order.
4
they are injured in a motor vehicle accident are entitled to
uninsured or underinsured motor vehicle insurance has been the
subject of a number of our prior decisions. Apparently, the
issue continues to vex litigants and the trial courts as
evidenced by the contrasting positions asserted here by Slagle
and Hartford in their markedly differing interpretations of
those decisions.
Slagle asserts that use of a motor vehicle as contemplated
by Code § 38.2-2206(B) does not require operation, occupancy, or
contact of the insured vehicle. He further asserts that this
Court has identified the following three factors relevant to the
resolution of the issue of use of an insured vehicle by a non-
occupant: “(1) causal relationship between the accident and the
use of the vehicle as a vehicle, (2) use of the vehicle to
perform an integral part of the mission and (3) use of vehicle
[safety] equipment, including warning lights and flashers.” In
support of these assertions, and the further assertion that he
has satisfied all of these factors, Slagle relies upon Edwards
v. Government Employees Insurance Co., 256 Va. 128, 500 S.E.2d
819 (1998); Newman v. Erie Insurance Exchange, 256 Va. 501, 507
S.E.2d 348 (1998); Randall v. Liberty Mutual Insurance Co., 255
Va. 62, 496 S.E.2d 54 (1998); and Great American Insurance Co.
v. Cassell, 239 Va. 421, 389 S.E.2d 476 (1990).
5
Relying upon these same decisions, Hartford concludes that
this Court has never extended coverage under Code § 38.2-2206(B)
where the injured person did not previously occupy or
immediately intend to occupy the insured vehicle. In addition,
Hartford asserts that even when prior occupancy or the immediate
intent to occupy the insured vehicle is established, the injured
person must have also used specialized safety equipment or tools
from the vehicle as an integral part of his mission in order to
qualify as using the insured vehicle. Hartford relies upon
United States Fire Insurance Co. v. Parker, 250 Va. 374, 463
S.E.2d 464 (1995) and Insurance Company of North America v.
Perry, 204 Va. 833, 134 S.E.2d 418 (1964) to support this
assertion.
We take this opportunity to revisit certain prior decisions
in an effort to give additional insight and guidance to the
proper resolution of the issue presented under Code § 38.2-
2206(B) with regard to the required use of an insured motor
vehicle. Initially, we agree with Hartford that our prior
decisions on this subject have dealt exclusively with instances
in which the injured person had previously occupied, or had the
immediate intent to occupy, the insured vehicle. See Newman,
256 Va. at 503, 507 S.E.2d at 349 (injured child crossing street
to board school bus); Edwards, 256 Va. at 130, 500 S.E.2d at
819-20 (injured person changed flat tire and intended to drive
6
car to service station); Randall, 255 Va. at 63, 496 S.E.2d at
54-55 (injured highway worker drove employer’s truck to place
closure signs along highway work site); Parker, 250 Va. at 376,
463 S.E.2d at 465 (injured landscape gardener drove company
truck to work site); Cassell, 239 Va. at 422, 389 S.E.2d at 476
(injured firefighter traveled to scene of fire in fire pump
truck); Perry, 204 Va. at 834, 134 S.E.2d at 419 (injured police
officer drove police car to serve warrant). However, we have
not previously considered a case, such as the present one, where
the injured party neither previously occupied nor immediately
intended to occupy the insured vehicle.
A careful review of these cases reveals that occupancy or
immediate intent to occupy the insured vehicle did not dictate
the distinctions we drew and the different results we reached in
them. In Cassell, where we held that the injured firefighter
was using the fire truck, we distinguished Perry, where we held
that the injured police officer was not using the police car.
We noted that the firefighter was “engaged in a transaction
essential to the use of the fire truck when he was killed.” 239
Va. at 424, 389 S.E.2d at 477. We also noted that, in contrast,
the police officer in Perry was not using the police car when he
was struck and killed by a passing vehicle 164 feet away from
the police car while he was in the process of serving a warrant.
Id.
7
Following Perry and Cassell, we again considered the issue
of use of an insured vehicle as contemplated by Code § 38.2-
2206(B) in Parker. In that case, a landscape gardener was
injured by a passing vehicle while she was planting cabbages
adjacent to the public road. She had driven her employer’s
truck to the work site to transport the cabbages and tools
necessary to plant them. She parked the truck in a position to
provide a safety barrier to protect her from speeding motorists.
She was struck while digging a hole for the cabbages 12 to 15
feet from the truck. Parker, 250 Va. at 376, 463 S.E.2d at 465.
In Parker, we observed that the critical inquiry in determining
the issue of use contemplated by the statute is whether there
was “a causal relationship between the incident and the
employment of the insured vehicle as a vehicle.” Id. at 377,
463 S.E.2d at 466. We addressed that inquiry and distinguished
Cassell, finding that Parker was not engaged in a transaction
essential to the use of the insured vehicle when she was
injured. Id. at 378, 463 S.E.2d at 466.
In Randall, we held that an injured highway worker was
using the insured truck for purposes of Code § 38.2-2206(B)
while placing lane closing signs along the highway because the
“truck’s warning equipment, and the procedures prescribed for
putting out the lane closure signs which incorporated the use of
the warning equipment, made [the injured party’s] truck, like
8
the fire truck in Cassell, a specialized vehicle, one designed
to be used for more than simply transportation.” Randall, 255
Va. at 67, 496 S.E.2d at 57. In reaching our decision in
Randall, we distinguished Parker on the grounds that the insured
vehicle in that case had no special warning lights and was not
required by the employer to be positioned to create a safety
zone and, thus, was . . . “ ‘merely used as a means of
transportation’ ” to the work site. Id., 496 S.E.2d at 56
(quoting Parker, 250 Va. at 378, 463 S.E.2d at 466). Most
significantly, we noted that “[i]f the injured person is using
the insured vehicle as a vehicle and as an integral part of his
mission when he is injured, he is entitled to [underinsured]
coverage under § 38.2-2206.” Randall, 255 Va. at 66, 496 S.E.2d
at 56. We also noted that the coverage mandated by this statute
for use of a vehicle is not limited to the transportation
function of the vehicle. Id.
In Edwards, we determined that Randall and Cassell
compelled the conclusion that the person injured by a passing
vehicle while he was in the process of changing a flat tire on
an insured vehicle by using the vehicle’s jack and spare tire
was using the vehicle as contemplated by Code § 38.2-2206(B).
Edwards, 256 Va. at 133, 500 S.E.2d at 821. We reasoned that
his mission was to drive the vehicle to a service station to
have the tire repaired and that an integral part of that mission
9
required the use of the vehicle’s equipment. Thus, we held that
the injured person was “in the process of performing a
transaction essential to the use of the insured vehicle when he
was struck.” Id. As we had in Randall and in Parker, we again
noted that in determining whether an injured person was using
the insured vehicle at the time he was injured the relevant
inquiry is whether “there was a causal relationship between the
accident and the use of the insured vehicle as a vehicle.” Id.
at 132, 500 S.E.2d at 821.
Finally, in Newman we relied upon Randall and Edwards and
concluded that a student “was using the school bus as a vehicle
at the time he was injured, based on his use of the bus’
specialized safety equipment and his immediate intent to become
a passenger in the bus. Those facts establish the required
causal relationship between the accident and [the student’s] use
of the bus as a vehicle.” Newman, 256 Va. at 509, 507 S.E.2d at
352.
It should become apparent from this review of these cases
addressing the requirements for an injured person to qualify as
a person who “uses” an insured vehicle as contemplated by Code
§ 38.2-2206(B), that the critical inquiry is whether there was a
causal relationship between the incident and the employment of
the insured vehicle as a vehicle. It should also be apparent
that because the resolution of that inquiry is necessarily
10
dependent upon the particular factual circumstances of each
case, the inquiry does not lend itself to resolution by strict
guidelines or a set formula. Rather, we have established some
general guidelines. The injured person must be using the
insured vehicle as a vehicle and as an integral part of his
mission. Actual use of the vehicle as a vehicle is not
restricted to its transportation function. See, e.g., Randall,
255 Va. at 66, 496 S.E.2d at 56. Use of the vehicle need not be
the direct, proximate cause of the injury “in the strict legal
sense.” State Farm Mutual Auto Insurance Co. v. Powell, 227 Va.
492, 500, 318 S.E.2d 393, 397 (1984).
In this context, the assertions made by both parties in the
present case miss the mark. To the extent that Slagle suggests
that we have established a list of factors that are dispositive
in resolving the issue of use contemplated by Code § 38.2-
2206(B), we disagree. To the extent that Hartford suggests that
occupancy or the immediate intent to occupy the insured vehicle
is a prerequisite to the coverage afforded by this statute or
that in the latter circumstance the injured person must have
utilized the special safety equipment of the insured vehicle, we
also disagree. Occupancy, the immediate intent to occupy the
insured vehicle, and the utilization of special safety equipment
are several of many factors, if relevant in a particular case,
11
which may be considered in resolving the issue of use
contemplated by the statute.
In the present case, the insured tractor-trailer was being
employed to transport and ultimately position a large piece of
construction equipment along a public road which was to be
widened by Vico. In order to position the construction
equipment at the desired place at the construction site, it was
necessary for the driver to back the tractor-trailer from a
driveway and then along the side of the road. Slagle, in his
capacity as vice-president and construction manager of Vico, was
present at the scene before the driver began this maneuver.
Slagle’s mission was to direct the driver to the place where the
equipment was to be located when it was unloaded from the
tractor-trailer. Slagle did so by giving hand signals, which
were observed by the driver through the tractor’s side view
mirror, while Slagle stood 10 to 30 feet behind the vehicle.
Clearly the tractor-trailer under those circumstances was being
used as a “vehicle” within the meaning of Code § 38.2-2206(B).
The question is whether Slagle was using it in that capacity.
Although the driver of the tractor-trailer activated the
vehicle’s emergency flashers and audible back-up alarm, there is
no factual basis to conclude that this safety equipment
effectively created a safety zone for Slagle. Moreover, there
is no factual basis for a conclusion that Slagle relied upon
12
them for that purpose. Nevertheless, Slagle’s hand signals to
the driver effectively determined the direction and movement of
the tractor-trailer and were required by the driver for the
completion of the intended maneuver of the vehicle.
Accordingly, there was a causal relationship between the
incident in which Slagle was injured and the employment of the
tractor-trailer as a vehicle because Slagle’s acts in assisting
the driver of that vehicle were an integral part of Slagle’s
mission to locate the construction equipment at a particular
place on his company’s construction site.3 In reaching this
conclusion we note that it was not necessary for Slagle to have
physical contact with the tractor-trailer to assist the driver.
Indeed, in order for Slagle to have an adequate field of view
and to see and communicate with Askew, it would have been
necessary for him to be some distance away from and to the side
and rear of the vehicle. Similarly, it was not necessary for
Slagle to have previously occupied or immediately intended to
occupy the tractor-trailer to use that vehicle to accomplish his
3
Expanding on an argument made on brief, Hartford asserted
during oral argument of this appeal that direction of a vehicle
by visual and audible signals cannot constitute use of the
vehicle because this would unreasonably expand the class of
persons entitled to uninsured and underinsured coverage to
include police officers directing traffic, tower dispatchers
directing the movement of trucks in freight yards, and other
similar cases. We emphasize that our decision in this case is
predicated on the specific facts under which Slagle’s injury
occurred.
13
mission. Contrary to Hartford’s assertion, under the undisputed
facts of this case Slagle was not a mere pedestrian at the time
he was injured.
For these reasons, we hold that, under the circumstances of
this case, Slagle was using the tractor-trailer in a manner
contemplated by Code § 38.2-2206(B) and, thus, was an insured
entitled to the underinsured motorist coverage applicable to
that vehicle. We further hold that the trial court erred in
entering summary judgment for Hartford and denying summary
judgment to Slagle.
CONCLUSION
Accordingly, we will reverse the judgment of the trial
court and enter final judgment for Slagle.
Reversed and final judgment.
JUSTICE KINSER, with whom JUSTICE LACY joins, dissenting.
Contrary to the majority’s conclusion, today’s decision
will “unreasonably expand the class of persons entitled to
uninsured and underinsured coverage to include police officers
directing traffic, tower dispatchers directing the movement of
trucks in freight yards, and other similar cases.” Therefore, I
respectfully dissent.
In deciding whether uninsured or underinsured coverage is
mandated by the provisions of Code § 38.2-2206 in a factual
14
context such as the present one, the dispositive question is
whether “the injured person [was] using the insured vehicle as a
vehicle and as an integral part of [his/her] mission when . . .
injured.” Randall v. Liberty Mutual Insurance Co., 255 Va. 62,
66, 496 S.E.2d 54, 56 (1998); see also, Newman v. Erie Insurance
Exchange, 256 Va. 501, 508, 507 S.E.2d 348, 352 (1998); United
States Fire Insurance Co. v. Parker, 250 Va. 374, 377-78, 463
S.E.2d 464, 466 (1995); Great American Insurance Co. v. Cassell,
239 Va. 421, 424, 389 S.E.2d 476, 477 (1990). Under the
specific facts of this case, the relevant question is whether
Norman H. Slagle (“Slagle”), is entitled to coverage under Code
§ 38.2-2206 when he did not occupy the insured vehicle, did not
use the vehicle’s specialized equipment, and had no immediate
intent to occupy the vehicle? I answer that question in the
negative.
As the majority acknowledges, the driver of the tractor-
trailer activated the emergency flashers and audible back-up
alarm on the vehicle, but Slagle did not utilize that safety
equipment to accomplish his mission of directing the tractor-
trailer to the location where the construction equipment was to
be unloaded. Nor did the safety equipment create a zone of
safety for Slagle because he was standing 10 to 30 feet behind
the tractor-trailer. Instead, Slagle merely gave hand signals
to the driver of the tractor-trailer in order to assist in the
15
movement of the vehicle to a particular place. In my view, the
giving of hand signals unaccompanied by the use of any
specialized equipment on the tractor-trailer is insufficient to
constitute use of the vehicle “as a vehicle” within the meaning
of Code § 38.2-2206(B). I do not dispute that the tractor-
trailer was being used as a vehicle. But, as the majority
notes, the “question is whether Slagle was using it in that
capacity.” Slagle’s use of the vehicle is the factor missing in
this case. Our prior decisions illustrate that point.
In Cassell, we found that a fire fighter was using a fire
truck when he was struck and killed by a hit-and-run driver
because he was engaged in a transaction essential to the use of
the fire truck at the time of the accident. There, the fire
truck and its specialized equipment were used “to extinguish the
fire, control traffic and protect the fire fighters, including
Cassell.” 239 Va. at 424, 389 S.E.2d at 477. Next, in Randall,
we concluded that a worker was using his employer’s pickup truck
when he was struck and killed by a motorist as he placed lane
closure signs along a highway. 255 Va. at 67, 496 S.E.2d at 57.
“The truck’s warning equipment, and the procedures prescribed
for putting out the lane closure signs which incorporated the
use of the warning equipment, made [the pickup] truck, like the
fire truck in Cassell, a specialized vehicle, one designed to be
used for more than simply transportation.” Id. When the worker
16
was struck, he “was using the truck’s specialized equipment to
perform his mission.” Id.
Similarly, in Edwards v. Government Employees Insurance
Co., 256 Va. 128, 132, 500 S.E.2d 819, 821 (1998), we focused on
the injured individual’s use of the insured vehicle’s equipment
to accomplish his mission. There, that individual was using the
vehicle’s jack to remove a flat tire and to place a spare tire
on the vehicle so that he could then drive the vehicle to a
service station to have the flat tire repaired. Id. at 133, 500
S.E.2d at 821. The individual was “in the process of performing
a transaction essential to the use of the insured vehicle when
he was struck” by an automobile driven by an uninsured motorist.
Id. Because of the use of the vehicle’s equipment and the
immediate intent to drive the vehicle, we concluded “that there
was a causal relationship between the accident and [the injured
individual’s] use of the vehicle as a vehicle.” Id. Likewise,
we held in Newman, 256 Va. at 509, 507 S.E.2d at 352, that a
child “was using [a] school bus as a vehicle at the time he was
injured, based on his use of the bus’ specialized safety
equipment and his immediate intent to become a passenger in the
bus.”
By contrast, in Parker, a closer case on the facts than the
present one in my view, we found that a pickup truck, which had
no specialized equipment or emergency warning lights and which
17
was used by landscape gardeners to carry them, their cabbages,
and necessary gardening tools to their worksite, “merely was
used as a means of transportation.” 250 Va. at 378, 463 S.E.2d
at 466. The gardeners parked “the truck at the site in such a
position as to provide a ‘safety barrier’ to protect them from
speeding motorists” and left the door of the truck open in order
to hear a two-way radio and receive messages from their
supervisor. Id. at 376, 463 S.E.2d at 465. The injured
gardener was struck by a speeding vehicle while she was digging
a hole in a flower bed approximately 15 feet from the pickup
truck. Id. We found those facts insufficient to bring that case
within the Cassell precedent and denied underinsured motorist
coverage to the injured gardener. Id. at 378, 463 S.E.2d at
466-67.
Unlike the fire fighter in Cassell, the worker in Randall,
the individual changing the tire in Edwards, or the child in
Newman, Slagle was not using any of the tractor-trailer’s
specialized equipment at the time of the accident to perform his
mission. I do not necessarily believe that Slagle had to occupy
the vehicle or had to have an immediate intent to do so. Nor do
I disagree with the majority’s assertion that “Slagle’s acts in
assisting the driver of [the tractor-trailer] were an integral
part of Slagle’s mission to locate the construction equipment at
a particular place on his company’s construction site.”
18
Nevertheless, the fact remains that the only action Slagle took
with regard to the tractor-trailer was to use hand signals to
direct the driver. Without something more such as utilizing the
vehicle’s specialized equipment, Slagle was not using the
insured vehicle “as a vehicle” within the meaning of Code
§ 38.2-2206(B). Thus, there can be no causal relationship
between the accident and Slagle’s use of the vehicle “as a
vehicle” because he never used the tractor-trailer.
The majority’s decision today will indeed expand the class
of persons entitled to uninsured and underinsured coverage. If
a passing motorist had stopped to assist the driver of the
tractor-trailer by giving hand signals to direct the movement of
that vehicle, the motorist would now be entitled to coverage
under Code § 38.2-2206. For the reasons stated, I respectfully
dissent and would affirm the judgment of the circuit court.∗
∗
Slagle’s argument that he was a “named insured” under the
policy in question is not encompassed within his assignments of
error. Thus, I will not address that argument.
19