PRESENT: All the Justices
NATIONWIDE MUTUAL INSURANCE
COMPANY, AN OHIO CORPORATION
v. Record No. 012841 OPINION BY JUSTICE BARBARA MILANO KEENAN
June 7, 2002
JO-ANNA SMELSER, EXECUTRIX, ET AL.
UPON A QUESTION OF LAW CERTIFIED BY THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Under the provisions of Rule 5:42, the United States Court
of Appeals for the Fourth Circuit certified to this Court a
question of Virginia insurance law. The certified question
accepted by this Court asks whether a pedestrian, who was
injured when her purse was "snatched" by an unidentified
passenger in a moving vehicle, sustained injuries arising "out
of the use of an uninsured motor vehicle for purposes of
uninsured motorist provisions in [a certain insurance] policy."
The facts as stated in the certification order are set forth
below.
On March 27, 1999, Mary B. Smelser (Mrs. Smelser), then 74
years old, was a passenger in an automobile driven by her
daughter, Jo-Anna Smelser (Jo-Anna), from Virginia Beach to the
Williamsburg Outlet Mall in Lightfoot. After Jo-Anna parked the
car in the mall parking lot, Mrs. Smelser stepped from the
passenger side of the vehicle, walked to the rear of the car,
and turned toward the mall. Her purse hung from her left
shoulder. Because it was raining outside, Jo-Anna momentarily
remained in the vehicle to locate an umbrella.
Jo-Anna heard "the sound of tires spinning in water trying
to get traction" and both Jo-Anna and Mrs. Smelser heard a "very
loud" engine noise. At that moment, a car driven by an unknown
male accelerated rapidly toward Mrs. Smelser. Another unknown
male reached from the passenger-side window of the approaching
car and grabbed the strap of Mrs. Smelser's purse, pulling Mrs.
Smelser toward the vehicle. The male passenger dragged Mrs.
Smelser about ten feet alongside the car before she fell to the
pavement. The driver and passenger then fled from the scene in
the automobile.
Mrs. Smelser sustained injuries as a result of this
incident, including fractures of her left shoulder and pelvis.
In her description of the incident, Mrs. Smelser stated that she
was "whipped off the ground and pinned to the car, until her
shoulder broke." She described hearing a "cracking sound" and
feeling "a very severe sharp pain in her left shoulder" before
she was "propelled" away from the vehicle. She did not know
whether the vehicle actually struck her or dragged her.
Mrs. Smelser was insured under a motor vehicle liability
insurance policy that her husband, Eugene J. Smelser, maintained
with Nationwide Mutual Insurance Company (Nationwide). Because
the driver of the car carrying the "purse-snatching" passenger
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was unknown, Mrs. Smelser sought recovery under the uninsured
and underinsured motorist (UM/UIM) provisions of her husband's
insurance policy (the Nationwide policy). That policy required
Nationwide to pay to Mrs. Smelser, "in accordance with Section
38.2-2206 of the Code of Virginia," all sums that she was
legally entitled to recover as damages from the driver of an
uninsured vehicle for injuries resulting from "the ownership,
maintenance or use" of the uninsured motor vehicle.
Mrs. Smelser filed a motion for judgment in the Circuit
Court for the City of Virginia Beach against the unknown
motorist, requesting damages under the above provisions of the
Nationwide policy. In September 1999, Mrs. Smelser died from
causes unrelated to the "purse-snatching" incident and Jo-Anna
and Eugene qualified as executors of her estate (collectively,
the executors).
Nationwide filed a declaratory judgment action against the
executors in the United States District Court for the Eastern
District of Virginia seeking a declaration that Nationwide was
not liable to provide coverage for Mrs. Smelser's injuries. The
personal injury action in Virginia Beach was stayed pending the
outcome of the declaratory judgment action.
In the declaratory judgment action, Nationwide asserted
that Mrs. Smelser was not entitled to coverage under the policy
provision at issue because "the facts and circumstances of the
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alleged incident do not constitute . . . 'use' of the motor
vehicle" under Va. Code § 38.2-2206. Nationwide and the
executors filed cross-motions for summary judgment.
In support of their summary judgment motion, the executors
submitted an affidavit from Richard T. Holden, M.D., Mrs.
Smelser's orthopedic surgeon. In the affidavit, Dr. Holden
stated an opinion within a reasonable degree of medical
certainty that it was "highly unlikely" that Mrs. Smelser's
injuries "were caused by a man seated in a stationary
automobile." Dr. Holden further concluded that "her injuries
were entirely consistent with . . . being forcibly pulled to a
moving automobile, dragged approximately ten feet, and then
dropped to a parking lot surface."
The executors also submitted an affidavit from Robert S.
Neff, M.D., another orthopedic surgeon. Dr. Neff stated that
after a review of Mrs. Smelser's medical records, it was his
opinion within a reasonable degree of medical certainty that
Mrs. Smelser's injuries "were not caused by a man seated in a
stationary automobile." Dr. Neff concluded that, instead, Mrs.
Smelser's injuries were "entirely consistent with a man in a
moving vehicle grabbing [Mrs. Smelser] or her purse strap."
After hearing argument on the cross-motions for summary
judgment, a magistrate judge granted Nationwide's motion and
denied the executors' motion. The court held that the
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circumstances leading to Mrs. Smelser's injuries did not
constitute "use" of an uninsured motor vehicle under the UM/UIM
provisions of the Nationwide policy. The executors appealed
from this judgment to the United States Court of Appeals for the
Fourth Circuit, which certified the present question of Virginia
law to this Court.
The executors argue before this Court that Mrs. Smelser was
entitled to coverage under the UM/UIM provisions of the
Nationwide policy because the automobile carrying the unknown
assailants was being used as a vehicle at the time she was
injured. The executors assert that the assailants used the car
to assist in stealing Mrs. Smelser's purse and to effect their
escape. According to the executors' argument, the force of the
moving vehicle dragged Mrs. Smelser before she fell onto the
pavement and, thus, was a substantial factor contributing to the
cause of her injuries.
In response, Nationwide contends that the outcome of the
present case is controlled by our decisions in Lexie v. State
Farm Mutual Automobile Insurance Company, 251 Va. 390, 469
S.E.2d 61 (1996), and Travelers Insurance Company v. LaClair,
250 Va. 368, 463 S.E.2d 461 (1995). Nationwide asserts that
like the employment of the vehicles in those cases, the
assailants' vehicle in the present case was being used as a
fortress or an outpost from which they inflicted intentional
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injury on another person. Nationwide also argues that the
parties to the insurance contract did not contemplate the
provision of UM/UIM coverage for criminal acts committed by a
passenger in an uninsured vehicle. *
Certain general principles govern this inquiry. Under Code
§ 38.2-2206(B) and the terms of the Nationwide policy, a motor
vehicle is an "uninsured motor vehicle" when the owner or
operator of the vehicle is unknown. As Nationwide concedes,
Mrs. Smelser, wife of the named insured residing in the same
household with her husband, was an insured of the first class
entitled to seek coverage under the policy's uninsured motorist
provisions for injuries she sustained as a pedestrian. See
Insurance Co. of N. Am. v. Perry, 204 Va. 833, 836, 134 S.E.2d
418, 420 (1964).
In determining the scope of coverage provided under the
Nationwide policy, we must consider the intention of the parties
to the insurance contract as expressed in the policy terms,
including those terms required by Code § 38.2-2206. See Lexie,
251 Va. at 396, 469 S.E.2d at 64; LaClair, 250 Va. at 371-72,
463 S.E.2d at 463. We will construe the contract provisions
concerning "use" of a vehicle in accordance with the natural and
*
Both Nationwide and Smelser agree that in answering the
certified question, this Court need not address the issue
whether there was a concert of action between the driver and the
passenger of the unknown vehicle.
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ordinary meaning of the terms employed. Id.; State Farm Mut.
Auto. Ins. Co. v. Powell, 227 Va. 492, 500, 318 S.E.2d 393, 397
(1984).
In order for an injury to be classified as arising from the
"use" of a vehicle, there must be a causal relationship between
the injury sustained and the employment of the motor vehicle as
a vehicle. Edwards v. Government Employees Ins. Co., 256 Va.
128, 130, 500 S.E.2d 819, 821 (1998); Randall v. Liberty Mut.
Ins. Co., 255 Va. 62, 66, 496 S.E.2d 54, 56 (1998); Lexie, 251
Va. at 396, 469 S.E.2d at 64; LaClair, 250 Va. at 372, 463
S.E.2d at 463. However, such "use of the vehicle need not be
the direct, proximate cause of the injury in the strict legal
sense." Id. (quoting Powell, 227 Va. at 500, 318 S.E.2d at
397).
In Lexie and LaClair, we examined the nature of this causal
relationship in the factual context of criminal acts committed
by occupants of uninsured vehicles. In Lexie, the parties
seeking coverage under their uninsured motorist policy
provisions were riding in a moving vehicle when they were
injured in a "drive-by shooting" perpetrated by assailants
occupying another moving vehicle. We explained that in
determining uninsured motorist coverage, the main focus of the
"use" inquiry is the "manner in which the vehicle, whether
moving or stationary, is being employed, not upon the activity
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or role of any assailant who may be in, upon, or around the
uninsured vehicle." Lexie, 251 Va. at 396-97, 469 S.E.2d at 64.
We held that the injured parties failed to establish that
their gunshot wounds were sustained as a result of the uninsured
vehicle being employed as a vehicle. Id. at 397, 469 S.E.2d at
64. Instead, their injuries resulted solely from the activities
of the assailants in the uninsured vehicle and the movement of
that vehicle was only an incidental factor in the injuries that
occurred. Thus, the evidence failed to demonstrate a causal
relationship between the injuries sustained and the "use" of the
vehicle as a vehicle.
We likewise concluded in LaClair that such a causal
relationship did not exist. There, a deputy sheriff was shot
during a "traffic stop." His assailant was partially inside the
uninsured vehicle when the shots were fired and the assailant
used the stationary vehicle as a shield. We held that the
natural and ordinary meaning of "use" of a motor vehicle did not
include the utilization of the uninsured vehicle as a fortress
or a shield. LaClair, 250 Va. at 373, 463 S.E.2d at 464.
Unlike Lexie and LaClair, the present case involves the
ordinary movement of a vehicle that was a direct cause, rather
than a mere incidental aspect, of the injuries sustained. Here,
the vehicle's movement and its resulting force were used to help
wrest the handbag from Mrs. Smelser and to remove the assailants
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from the scene of the crime. Mrs. Smelser's injuries were
causally related to the employment 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.
For these reasons, we will answer the certified question in
the affirmative.
Certified question answered in the affirmative.
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