Present: All the Justices
WILLIAM N. RANDALL, ET AL.
v. Record No. 970789 OPINION BY JUSTICE ELIZABETH B. LACY
January 9, 1998
LIBERTY MUTUAL INSURANCE COMPANY
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
William F. Rutherford, Judge
In this appeal, we decide whether, for purposes of
qualifying as an insured under Code § 38.2-2206, a highway worker
was "using" his employer's vehicle while placing lane closure
signs along the side of a highway.
Early in the morning of July 28, 1994, James L. Downey and
Lawrence Eichler, employees of Archer-Western Contractors, Ltd.,
were placing lane closure signs along the shoulders of a one-mile
section of Interstate 64 in Norfolk when Downey was struck and
killed by a car driven by Thomas Glen Pasterczyk. Downey had
driven himself and the closure signs to the highway section in a
pickup truck owned by his employer and insured by Liberty Mutual
Insurance Company (Liberty).
In placing the closure signs, Downey and Eichler employed
the following procedure. At several points in the one-mile
stretch leading to a merge zone, Downey pulled over to the side
of the shoulder and exited his vehicle, leaving the engine
running and the flashing yellow bubble light on top of the cab
turned on. Downey then removed a stand from the pickup truck and
placed it on the side of the road, five to six feet behind the
back of the truck. Next, Downey removed two flags and a sign
from the truck and placed those on the stand. Eichler,
meanwhile, followed the same procedure on the opposite side of
the road. Downey and Eichler then would re-enter their trucks
and would drive simultaneously to the next designated point.
Downey was struck and killed while placing the fourth and
final sign in the one-mile stretch. Eichler testified that
Downey had already placed the final stand and retrieved the sign
from the back of the truck. Eichler last saw Downey walking away
from the truck, toward the stand, carrying the sign. Eichler did
not see the actual collision, nor could he say whether Downey had
completed placing the final sign on its stand before being
struck. Pasterczyk's vehicle drifted off the road, first
striking Downey and then striking the truck. According to
Eichler, Downey was out of his truck for "two minutes, three
minutes, maybe longer" at the fourth spot before the accident
occurred, and he was six to ten feet behind the truck on the
shoulder of the road at the moment he was hit.
William N. Randall and Sharon S. Downey, Administrators of
Downey's estate (collectively "Randall"), filed a motion for
judgment against Pasterczyk. Prior to trial, an order was
entered by agreement providing, in relevant part, for the entry
of a judgment against Pasterczyk in the amount of $105,000,
$60,000 of which was to be paid jointly by Pasterczyk's liability
insurance carrier and Downey's uninsured/underinsured motorist
(UM/UIM) insurance carrier. The order also allowed an amendment
to the motion for judgment to seek a determination of whether
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Downey was an insured under § 38.2-2206 and entitled to
underinsured motorist coverage under the Liberty policy.
Following an ore tenus hearing and subsequent argument of
counsel, the trial court determined that Randall was not entitled
to recover under the UM/UIM endorsement of the Liberty policy
because, at the time of his death, Downey was not a named insured
under the policy and was neither "using" nor "occupying" the
truck. We granted Randall an appeal limited to an assignment of
error addressing the issue whether Downey was "operating or
using" the truck for purposes of UM/UIM insurance coverage.
I.
Section 38.2-2206 mandates that automobile liability
insurance policies provide UM/UIM coverage to persons insured
under the policies. The statute defines "insured," in relevant
part, as "any person who uses the motor vehicle to which the
policy applies" with the consent of the named insured. This
mandated coverage is not extended to the entire period of
permissive use, but is limited to injuries sustained while the
permissive user is actually using the insured vehicle. Insurance
Company of North America v. Perry, 204 Va. 833, 837-38, 134
S.E.2d 418, 421 (1964).
Two of our prior cases, Great American Insurance Co. v.
Cassell, 239 Va. 421, 389 S.E.2d 476 (1990), and United States
Fire Insurance Co. v. Parker, 250 Va. 374, 463 S.E.2d 464 (1995),
provide the analytical framework for determining whether a
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permissive user of an insured vehicle who is injured while away
from the vehicle qualifies as an insured and, therefore, is
entitled to UM/UIM coverage under § 38.2-2206. In Cassell, a
fire fighter was struck by a car while standing 20 to 25 feet
from his fire truck. The truck was parked in a manner which
restricted traffic flow and provided a protective barrier for the
fire fighters, and its red lights were flashing at the time of
the accident. The truck was used to transport to the scene
water, hoses, tools, and other equipment used in combating the
fire. Id. at 422-23, 389 S.E.2d at 476-77. In Cassell, we held
that the fire fighter was using his truck at the time of the
accident, entitling him to uninsured motorist coverage from the
policy insuring the truck. We concluded that "[u]se of the fire
truck . . . was an integral part of the fire fighters' mission,"
and that the fire fighter was "engaged in a transaction essential
to the use of the fire truck" when he was struck. Id. at 424,
389 S.E.2d at 477.
In Parker, a landscape gardener drove herself, two other
workers, some ornamental cabbage plants, and tools to the
entrance of a residential development in a pickup truck. The
gardeners parked the truck so as to provide a safety barrier from
passing traffic, and began digging holes and planting the
cabbages. A door of the truck was left open to allow the
gardeners to hear a two-way radio inside the truck. While Parker
was digging a hole 12 to 15 feet from the truck, an underinsured
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motorist hit the truck and then hit Parker, injuring her. We
described the relevant inquiry as whether there was a causal
relationship between the accident and the use of the insured
vehicle as a vehicle, and concluded that Parker was not using the
truck at the time of the accident, since she was not "engaged in
a transaction essential to the use of the pickup truck . . . ."
250 Va. at 376-78, 463 S.E.2d at 465-66.
As established by these cases, 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. Parker, 250 Va.
at 377-78, 463 S.E.2d at 466; Cassell, 239 Va. at 424, 389 S.E.2d
at 477. 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
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equipped. For example, the fire truck in Cassell had special
equipment for use in completing the user's fire fighting mission
which was in use at the time of the accident.
II.
1 Compare with Lexie v. State Farm Mut. Auto. Ins. Co.,
251 Va. 390, 469 S.E.2d 61 (1996), and Travelers Ins. Co. v.
LaClair, 250 Va. 368, 463 S.E.2d 461 (1995)(interpreting
insurance policies to determine whether parties' injuries
resulted from tortfeasors' use of uninsured/underinsured
vehicles "as a vehicle").
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Liberty argues that applying these principles to this case
requires the conclusion that Downey was not using his employer's
truck when he was struck and killed. Liberty notes that Downey,
like the gardener in Parker, was using an ordinary pickup truck
to transport items to be deposited at the work site. The truck
in Parker was parked in a manner which created a safety zone, but
neither that truck nor Downey's impeded or altered the flow of
traffic. Finally, Liberty argues, the purpose and use of the
yellow warning light on Downey's truck was only to protect the
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truck by showing the truck's location. Liberty concludes that
Downey did not need to use either the truck or its warning light
to place the lane closure signs; therefore, as in Parker, when
Downey was struck and killed he "was not engaged in a transaction
essential to the use of the pickup truck . . . ." 250 Va. at
378, 463 S.E.2d at 466.
We disagree with Liberty. In Parker, we specifically noted
that the pickup truck used by the gardeners "had no special,
emergency warning lights," and that the positioning of the truck
for safety purposes was done "independently and not because of
any requirement" of the gardener's employer. 250 Va. at 378, 463
S.E.2d at 466. The lack of these elements contributed to the
conclusion that the truck in Parker "merely was used as a means
2 Liberty's counsel stated at oral argument that the
location of the truck either in front of Downey or between
Downey and the oncoming traffic did not affect whether the
purpose and use of the truck was to create a safety zone.
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of transportation so that Parker could complete her landscaping
duties." Id. However, these elements do exist in this case.
Here, the specialized warning equipment and its relationship to
Downey's work made the use of the truck more than merely a means
of transportation.
Archer-Western Contractors, Ltd., Downey's employer, was
doing road work for the Virginia Department of Transportation
which required the closing of highway lanes. Closing highway
lanes occurs in close proximity to highway traffic, and the need
for procedures to insure the safety of workers is inherent in the
work. As Downey's co-worker Eichler testified, company procedure
for lane closing required Downey to stay close to the truck
because when motorists see the lights on the truck, they will
think "that . . . people are right back behind the truck." 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 Downey's truck, like the fire truck
in Cassell, a specialized vehicle, one designed to be used for
more than simply transportation.
The evidence shows that Downey was following the prescribed
safety procedures. When he alighted from the truck, he kept the
yellow warning light burning and he remained at a distance from
the truck which allowed him enough space to remove the sign from
the truck while retaining the protection of the warning light.
At the time he was struck, Downey was using the truck's
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specialized equipment to perform his mission.
Thus, we conclude that Downey qualified as an insured under
§ 38.2-2206 because he was using his employer's vehicle when he
was struck and killed. Accordingly, we will reverse the judgment
of the trial court and remand the case for further proceedings
consistent with the views expressed in this opinion.
Reversed and remanded.
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