Present: All the Justices
JOHNNY CALVIN NEWMAN, ET AL.
v. Record No. 980025 OPINION BY JUSTICE BARBARA MILANO KEENAN
November 6, 1998
ERIE INSURANCE EXCHANGE
FROM THE CIRCUIT COURT OF HENRY COUNTY
Martin F. Clark, Jr., Judge
This appeal of a declaratory judgment presents two issues
of motor vehicle insurance coverage involving a child who was
struck by a motor vehicle while walking across a highway to
board a school bus.
The facts in the case are undisputed. One morning in
February 1993, seven-year-old Johnny Calvin Newman waited for
his assigned school bus alongside the eastbound lane of Route 57
in Henry County. Route 57 is a two-lane highway at this
location. The bus came to a stop in the westbound lane, across
the road from Johnny. The bus driver activated the bus' warning
lights and its "stop arm." To board the bus, Johnny had to walk
across the eastbound lane of Route 57 and then cross in front of
the bus. As Johnny was walking across the eastbound lane, he
was struck by a motor vehicle operated by Ephriam Drake Sayers.
The school bus, which was owned by the Henry County School
Board, was insured under the Board's "commercial automobile
liability" insurance policy issued by Erie Insurance Exchange
(Erie). The policy listed the Henry County School Board as the
named insured and included within its uninsured/underinsured
motorist (UM/UIM) coverage "anyone while occupying" a vehicle
insured under the policy. The policy defined "occupying" as "in
or upon, getting into or out of, or getting off." The policy
also was subject to Code § 38.2-2206, which mandates UM/UIM
coverage for, among others, "any person who uses the motor
vehicle to which the policy applies, with the expressed or
implied consent of the named insured."
Johnny, by his parents and next friends Randall and Brenda
Newman, filed a motion for judgment seeking damages for personal
injuries against, among others, the personal representative of
Sayers' estate, the school bus driver, and the School Board.
Pursuant to Code § 38.2-2206(F), a copy of the motion for
judgment was served on Erie as an insurer providing potential
UM/UIM coverage.
Erie filed a bill of complaint for declaratory judgment,
asking the trial court to declare that Johnny was not an insured
under the UM/UIM provisions of the School Board's policy. For
purposes of determining the availability of UM/UIM coverage,
Erie and the Newmans stipulated the above-stated facts
concerning how the accident occurred. They further agreed that
at the time of the accident, Johnny was not riding the bus as a
passenger, was not a guest in the bus, and was not a named
2
insured or family member residing in the same household as a
named insured.
Erie moved for summary judgment, arguing that no material
facts remained in dispute and that it was entitled to judgment
as a matter of law based on this Court's decision in Stern v.
Cincinnati Insurance Company, 252 Va. 307, 477 S.E.2d 517
(1996). The trial court granted the motion for summary judgment
and entered an order concluding that Johnny was not an insured
under the UM/UIM provisions of the Erie policy. The court
stated in its order that Johnny was not "using, occupying,
getting on or getting off of the school bus at the time of the
accident, as per Stern v. Cincinnati Insurance Company."
On appeal, the Newmans argue that Johnny was "occupying"
the school bus at the time of the accident, as that term is
defined in the Erie policy. They assert that since a school bus
is a specialized type of vehicle, the differences involved in
boarding that type of vehicle must be recognized when
interpreting this policy term. They contend that the term
"getting into" an insured vehicle, considered in the context of
boarding a school bus, encompasses the very activity in which
Johnny was engaged.
The Newmans also argue that Johnny was "using" the school
bus at the time of the accident, within the meaning of
Code § 38.2-2206. They contend that since Johnny was struck
3
while walking across the road after the bus driver had activated
the bus' specialized safety devices, he was using those devices
and was injured while engaged in an activity essential to the
use of the bus as a vehicle.
In response, Erie argues that our decision in Stern
controls both issues raised in this case. Erie contends that
the facts in Stern are indistinguishable from the facts
presented here, and that the policy language at issue in that
case was very similar to the policy language before us. Thus,
Erie asserts that the doctrine of stare decisis requires a
conclusion that Johnny was not occupying or using the school bus
insured by Erie.
In considering these issues, we determine first whether
Johnny was "occupying" the school bus under the terms of the
Erie policy. As stated above, the policy defines "occupying" as
"in or upon, getting into or out of, or getting off." The
portion of the definition most applicable to the facts of this
case is the term "getting into." The Newmans agree with Erie
that the facts in Stern are indistinguishable from the facts
before us. There, a child was struck and injured by an oncoming
motorist while walking across a road to board a school bus. Id.
at 309, 477 S.E.2d at 518. To board the bus, the child was
required to walk across one complete lane of traffic and then
proceed in front of the bus that was stopped in the other lane.
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She was struck in the lane opposite the lane in which the bus
was stopped, two or three feet from the center line in the road.
Id.
Under policy language that defined "occupying" as "in,
upon, getting in, on, out or off," we held that the child was
not "occupying" the school bus. Id. at 310-11, 477 S.E.2d at
519. We explained that the policy definition must be
interpreted in relation to the term defined and stated that the
word "occupying" "denotes a physical presence in or on a place
or object." Id. at 311, 477 S.E.2d at 519. We held that,
considered in this context, the terms "getting in" and "getting
on" required a close proximity to the bus that was not
demonstrated by the child's location since she was across the
center line of the road from the bus when she was struck. Id.
Under the facts before us, there is no material difference
between the policy language at issue in Stern and the language
of Erie's policy. When Johnny was struck, his location in the
lane opposite the lane in which the bus was stopped did not
place him in such close proximity to the bus as would constitute
a physical presence in or on it. See id. Thus, under the plain
and ordinary meaning of the terms in the Erie policy, Johnny was
not "occupying" the school bus at the time he was struck.
In arguing that he was "using" the bus within the meaning
of Code § 38.2-2206, Johnny acknowledges that acceptance of his
5
position would require us to overrule the portion of Stern in
which we concluded that the child was not using the bus when
struck. There, we held that a bus driver used a bus and its
equipment to create a safety zone for the child, but that "the
safety measures did not constitute a use of the bus by [the
child]." Id. at 312, 477 S.E.2d at 520. We stated that the
child was not using the bus, within the meaning of Code § 38.2-
2206, at the time she was struck "because she was not yet a
passenger of the school bus." Id. at 313, 477 S.E.2d at 520.
In reaching this conclusion, we stated that our holding was
governed by our prior decisions in Insurance Company v. Perry,
204 Va. 833, 836, 134 S.E.2d 418, 420 (1964), and United States
Fire Ins. Co. v. Parker, 250 Va. 374, 463 S.E.2d 464 (1995).
Stern, 252 Va. at 312, 477 S.E.2d at 520.
Code § 38.2-2206(B) defines "insured," in material part, as
"any person who uses the motor vehicle to which the policy
applies, with the expressed or implied consent of the named
insured." The coverage mandated by the statute is limited to
injuries that the permissive user sustained while actually using
the insured vehicle. Edwards v. GEICO, 256 Va. 128, 132, 500
S.E.2d 819, 821 (1998); Randall v. Liberty Mut. Ins. Co., 255
Va. 62, 65, 496 S.E.2d 54, 55 (1998); Perry, 204 Va. at 838, 134
S.E.2d at 421. In determining whether Johnny was actually
"using" the school bus at the time he was injured within the
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meaning of Code § 38.2-2206, the relevant inquiry is whether
"there was a causal relationship between the accident and the
use of the insured vehicle as a vehicle." Edwards, 256 Va. at
132, 500 S.E.2d at 821 (quoting Randall, 255 Va. at 66, 496
S.E.2d at 56); accord Parker, 250 Va. at 377, 463 S.E.2d at 466;
Travelers Ins. Co. v. LaClair, 250 Va. 368, 372, 463 S.E.2d 461,
463 (1995).
We have illustrated the nature of this causal relationship
in two groups of cases. The first group includes such cases as
Stern, Parker, and Perry, in which we concluded that the injured
persons were not "using" the vehicles in question within the
meaning of Code § 38.2-2206. In Parker, a landscape gardener
drove a pickup truck containing some tools and ornamental
cabbage plants to the entrance of a residential development,
where she parked the truck in a manner to provide a safety
barrier from passing traffic. She left the truck door open in
order to hear a two-way radio located inside the truck and was
struck while planting the cabbages. We concluded that the
gardener was not "using" the truck as a vehicle at the time she
was injured by an uninsured motorist, because she was not
"engaged in a transaction essential to the use of the pickup
truck when she was injured." 250 Va. at 376-78, 463 S.E.2d at
465-66.
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In Perry, we held that a police officer was not "using" his
vehicle when he was struck and killed while attempting to serve
a warrant. At the time he was struck, the officer had turned
off the engine, left the vehicle, and was walking along a
roadway 164 feet from his police cruiser. 204 Va. at 834, 134
S.E.2d at 419.
The second group of cases discussing the causal
relationship between an accident and the use of an insured
vehicle as a vehicle includes such decisions as Randall and
Great American Insurance Co. v. Cassell, 239 Va. 421, 389 S.E.2d
476 (1990). In those cases, we concluded that the injured party
was "using" the insured vehicle at the time of injury, within
the meaning of Code § 38.2-2206. In Randall, a highway worker
was struck and killed by a vehicle while placing lane closure
signs along the side of a highway. He had driven the insured
vehicle to the site, left the engine running, and kept on the
flashing yellow bubble light on top of the truck's cab while
completing his assigned task. The worker was six to ten feet
behind the truck on the shoulder of the road at the time he was
struck. 255 Va. at 64, 496 S.E.2d at 55. We held that the
worker was "using" the insured truck as a vehicle when he was
struck because he was utilizing the truck's specialized
equipment to perform his mission. Id. at 67, 496 S.E.2d at 56-
57.
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In Cassell, a fire fighter was standing 20 to 25 feet away
from a fire truck when he was struck and killed by an uninsured
motor vehicle. The insured fire truck had transported to the
scene of the fire both the fire fighter and the equipment used
to fight the fire. The truck also was used at the scene as a
physical barrier to restrict the flow of traffic. At the time
the fire fighter was struck, he was using a writing pad and a
clipboard that he had removed from the truck to complete a
required fire incident report. We concluded that the fire
fighter was "using" the fire truck at the time of the accident
because the truck was an integral part of his mission, which had
not been completed when he was struck and killed. 239 Va. at
424, 389 S.E.2d at 477.
In Randall, which we decided after Stern, we emphasized
that
actual use of the vehicle for purposes of UM/UIM
coverage mandated by § 38.2-2206 is not restricted to
the transportation function of a vehicle. If 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 UM/UIM coverage under
§ 38.2-2206. In this context, the use of a vehicle
"as a vehicle" requires that at the time of the
injury, the vehicle is being used in a manner for
which it was specifically designed or equipped.
255 Va. at 66, 496 S.E.2d at 56 (citations omitted).
Our holding in Randall raises a question in this case
concerning our earlier holding in Stern. That question is
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whether there is coverage under Code § 38.2-2206 when an
individual, who has not occupied an insured vehicle, utilizes
the vehicle's specialized safety equipment as an integral part
of performing his mission, with the immediate intent to occupy
the vehicle. Applying the principles expressed in Randall, as
well as those set forth in Edwards v. GEICO, 256 Va. 128, 500
S.E.2d 819, we answer this question in the affirmative.
A school bus driver is required by regulation to activate a
school bus' warning devices "to warn approaching traffic to stop
and allow pupils to cross the highway safely." 8 VAC 20-70-80.
This regulation, enacted pursuant to the Board of Education's
authority under Code § 22.1-177, illustrates the fact that the
school bus' warning devices are intended for the child's use.
Therefore, there is a dual use of the bus' specialized safety
equipment. The bus driver uses the bus' specialized safety
equipment to warn approaching traffic to stop, and the child
uses the safety equipment as an integral part of his mission of
walking across the street to board the bus.
Our decision in Stern, however, recognized only the bus
driver's use of the specialized safety equipment. The decision
effectively equated "use" of the bus with occupancy by stating
that the child "clearly was not utilizing the bus as a vehicle
because she was not yet a passenger of the school bus, and,
therefore was not using the bus, within the meaning of Code
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§ 38.2-2206, when she was injured." 252 Va. at 313, 477 S.E.2d
at 520.
In no other case have we held that "use" of an insured
vehicle, under Code § 38.2-2206, requires that an injured party
be an occupant of the insured vehicle at some time prior to
sustaining an injury. Moreover, we held to the contrary in
Edwards, our most recent case addressing "use" of an insured
vehicle under Code § 38.2-2206. There, a man was injured in the
process of removing a flat tire from an automobile owned by an
acquaintance. He did not drive or ride in the insured vehicle
prior to being struck by the uninsured vehicle. Instead, he was
using the insured vehicle's tire jack and spare tire to change
the tire with the intention of driving the car to have the flat
tire repaired. We concluded that he was "using" the insured
vehicle, within the meaning of Code § 38.2-2206, because he
utilized the insured vehicle's equipment as an integral part of
his mission with the immediate intent to drive the vehicle after
replacing the tire. 256 Va. at 133, 500 S.E.2d at 821. *
*
Unlike the present case, the facts presented in Edwards
did not place our ruling in Stern before us for reconsideration.
In Edwards, we were presented with two certified questions from
the United States Court of Appeals that did not involve the use
of an insured vehicle's specialized safety equipment by the
injured motorist. Thus, in restating the ruling in Stern that
the child was not using the bus, we were not addressing the
merits of that decision, but were stating only why that holding
was inapplicable to the facts in Edwards.
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In light of Randall and Edwards, we are compelled to
overrule the holding in Stern that a child injured under the
facts presented was not "using" the school bus, within the
meaning of Code § 38.2-2206. Thus, under the facts now before
us, we conclude that Johnny 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 Johnny's use of the
bus as a vehicle.
In reaching this decision, we have given deliberate
consideration to the critical role that the doctrine of stare
decisis serves in insuring the stability of the law. See
Selected Risks Insurance Co. v. Dean, 233 Va. 260, 265, 355
S.E.2d 579, 581 (1987). However, we have a duty of equal
dignity to reexamine critically our precedent and to acknowledge
when our later decisions have presented an irreconcilable
conflict with such precedent. See Nunnally v. Artis, 254 Va.
247, 253, 492 S.E.2d 126, 129 (1997).
Under Stern, only children who have exited a school bus
under the protection of the bus' safety equipment could be
entitled to UM/UIM coverage when injured in a lane opposite the
lane in which the bus was stopped. Yet, children injured in the
same location while walking across the street to board the same
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bus under the protection of the same specialized safety
equipment would be denied such coverage. Our action today also
is taken to eliminate this paradox resulting from the
application of Stern.
For these reasons, we will affirm in part, and reverse in
part, the trial court's judgment. We will enter final judgment
declaring that Johnny was "using" the school bus at the time of
the accident, within the meaning of Code § 38.2-2206, and was
entitled to coverage under the UM/UIM portion of the Erie
policy.
Affirmed in part,
reversed in part,
and final judgment.
JUSTICE COMPTON, with whom CHIEF JUSTICE CARRICO joins,
dissenting.
"In Virginia, the doctrine of stare decisis is more than a
mere cliché. That doctrine plays a significant role in the
orderly administration of justice by assuring consistent,
predictable, and balanced application of legal principles. And
when a court of last resort has established a precedent, after
full deliberation upon the issue by the court, the precedent
will not be treated lightly or ignored, in the absence of
flagrant error or mistake." Selected Risks Ins. Co. v. Dean,
233 Va. 260, 265, 355 S.E.2d 579, 581 (1987).
13
Established precedents ought not to vary with every change
in the appellate court's personnel. Kelly v. Trehy, 133 Va.
160, 169, 112 S.E. 757, 760 (1922). Frequent overruling of an
appellate court's decisions tends to bring adjudications of the
tribunal "into the same class as a restricted railroad ticket,
good for this day and train only." Smith v. Allwright, 321 U.S.
649, 669 (1944) (Roberts, J., dissenting). Responsible
decisionmaking leaves no room for "jurisprudence of doubt."
Planned Parenthood v. Casey, 505 U.S. 833, 844 (1992).
In common law cases, the interest in stability demands
uniformity and certainty, particularly when rules of property
and contract have been established. W. M. Lile, Some Views On
The Rule of Stare Decisis, 4 Va. L. Rev. 95, 101 (1916). Dean
Lile expressed the doctrine of stare decisis in general terms:
"A decision by a court of last resort, in a litigated
controversy, on a question of law necessarily involved in the
judgment, becomes a precedent within that jurisdiction, for
subsequent cases involving substantially similar facts." Id. at
97.
But the interest in stability is not the only interest
stare decisis serves in common law cases. There are other
concerns relating to the manner in which appellate judges decide
cases. For example, "respect for precedent encourages the Court
to be fair by reminding the Justices to treat like cases alike."
14
Note, Constitutional Stare Decisis, 103 Harv. L. Rev. 1344, 1349
(1990). Moreover, "respect for precedent helps promote public
confidence in the law." Id. If an appellate court does not
respect its own precedent, then the public, the bench, and the
bar are less likely to have confidence in the decisions that are
made. Furthermore, employing the doctrine of stare decisis
assures the public that an appellate court's judgments are not
arbitrary and that the court is controlled by precedent that is
binding without regard to the personal views of its members.
Id.
Against the background of these settled principles, a bare
majority of this Court, in a case construing a contract, today
overrules a holding that is merely two years old. The accident
facts here and in Stern v. Cincinnati Ins. Co., 252 Va. 307, 477
S.E.2d 517 (1996), are substantially identical; the contract
provisions are the same; and, the issues are identical. Yet a
Court majority (including three members who were in the minority
in Stern, and who ought to feel bound by it), strains to draw
distinctions that make no difference and says that the holding
on "use" in Stern should be jettisoned. I cannot agree.
The decision on that question of law was necessarily
involved in the judgment in Stern and should be binding, as
here, in a subsequent case with substantially similar facts. No
flagrant error or mistake was made in Stern, which was decided
15
after full deliberation upon the issue by the Court.
Parenthetically, I note the "irreconcilable conflict" with the
Stern precedent, mentioned by the majority, is created by the
analysis it advances in this case.
Accordingly, I would affirm the declaratory judgment of the
trial court in all respects.
JUSTICE KOONTZ, dissenting.
I respectfully dissent. In my view, the sole issue
presented in this appeal is whether case law subsequent to Stern
v. Cincinnati Insurance Company, 252 Va. 307, 477 S.E.2d 517
(1996), warrants reconsideration of the issues decided by that
case. The majority, relying upon Randall v. Liberty Mut. Ins.
Co., 255 Va. 62, 496 S.E.2d 54 (1998), and Edwards v. GEICO, 256
Va. 128, 500 S.E.2d 819 (1998), reasons that this Court has
adopted a more expansive view of what constitutes “using” an
insured vehicle within the meaning of Code § 38.2-2206(B) and,
thus, our holding in Stern has been called into question. I
disagree.
Randall dealt with an individual who was struck and killed
by a vehicle while placing lane closure signs along the side of
the highway. At that time, he was using the specialized safety
equipment of the insured vehicle, which he had driven to the
site, to create a safety zone in which to complete his assigned
16
task. We held that these circumstances constituted a use of the
insured vehicle with the meaning of Code § 38.2-2206(B).
Randall, 255 Va. at 67-68, 496 S.E.2d at 57.
In Edwards, we held that an individual who was neither the
driver nor a passenger of the insured vehicle was nonetheless
“using” the vehicle within the meaning of Code § 38.2-2206(B)
since he was using specialized equipment associated with the
vehicle to change a flat tire on the vehicle. Moreover, when he
was struck and injured by another vehicle, Edwards was in
physical contact with the insured vehicle. We held that his
utilization of the insured vehicle’s equipment coupled with his
intent to drive the vehicle immediately after replacing the tire
constituted “using” the vehicle within the meaning of Code
§ 38.2-2206(B). Edwards, 256 Va. at 133, 500 S.E.2d at 821.
The underlying rationale of Randall and Edwards was that in
each case the action of the injured person constituted a use of
the insured vehicle within the meaning of Code § 38.2-2206(B)
because there was a causal relationship between the accident and
the use of the vehicle as a vehicle even though the actual use
was unrelated to the transportation function of the vehicle.
This was a logical extension of our decision in Great American
Insurance Co. v. Cassell, 239 Va. 421, 424, 389 S.E.2d 476, 477
(1990). However, nothing in Randall suggests that this
rationale would apply to every individual injured while located
17
within a safety zone created by specialized equipment of an
insured vehicle. Nor does the application of this rationale in
Edwards to a non-passenger, who was actually using specialized
equipment while in physical contact with the vehicle,
necessarily extend coverage under the statute to every
individual who incurs an incidental benefit from specialized
equipment of a vehicle. Indeed, both of these questions were
previously resolved in Stern.
In Stern, the student, when injured, was within a safety
zone created by the activation of the specialized safety
equipment of the insured bus by the bus driver for the student’s
benefit prior to completing her intended mission of becoming a
passenger on the bus. Under those specific facts in Stern, we
determined that the student was not “using” the school bus
within the meaning of Code § 38.2-2206(B). Unlike the
circumstances in Randall, the student in Stern was not within
the safety zone as a user of the vehicle. Unlike the
circumstances in Edwards, the student in Stern was not
physically in contact with the vehicle, nor was she utilizing
the bus’s specialized safety equipment in a manner that
constituted a use of the vehicle as a vehicle. Thus, at the
time of her injury, Stern was not yet “using,” within the
meaning of Code § 38.2-2206, the bus she intended to board. The
facts of the present case are indistinguishable from those in
18
Stern, and accordingly, I would hold that our decision in Stern
remains viable and controls the outcome of the present case.
For these reasons, I would affirm the declaratory judgment
of the trial court in all respects.
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