Present: All the Justices
ELENA SEROKA STERN, AN INFANT, ETC., ET AL.
OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR.
v. Record No. 960511
November 1, 1996
THE CINCINNATI INSURANCE COMPANY, ET AL.
UPON QUESTIONS OF LAW CERTIFIED BY THE UNITED STATES
COURT OF APPEALS FOR THE FOURTH CIRCUIT
The United States Court of Appeals for the Fourth Circuit
entered an order of certification requesting that we exercise our
certification jurisdiction, Va. Const. art. VI, § 1; Rule 5:42,
and answer two questions of law involving a dispute regarding
insurance coverage. By order entered June 11, 1996, we accepted
the questions for consideration.
I
Elena Seroka Stern and her parents (collectively, the
Sterns) filed a declaratory judgment proceeding against The
Cincinnati Insurance Company (Cincinnati), State Farm Mutual
Automobile Insurance Company (State Farm), and Graphic Arts
Mutual Insurance Company (Graphic Arts) in the Circuit Court of
the City of Lynchburg, seeking, inter alia, a declaration that an
insurance policy issued by Graphic Arts provided coverage for
injuries Elena sustained when she was struck by a motor vehicle.
Based upon diversity of citizenship, the action was removed to
the United States District Court for the Western District of
Virginia. The district court granted summary judgment in favor
of Graphic Arts, concluding that the Graphic Arts policy provided
no coverage to the Sterns. The Sterns appealed to the United
States Court of Appeals for the Fourth Circuit.
II
The facts are set forth in the Fourth Circuit's
certification order. On March 21, 1995, Elena, age 10, was
waiting at her usual school bus stop on the east side of Sandusky
Drive, a two-lane road, in the City of Lynchburg. Elena's bus
approached from the north and stopped to allow her to board. The
driver activated the bus' flashing red lights and safety stop
sign and extended its safety gate, and Elena began to cross the
road in front of the gate. When she was two or three feet east
of the center line of the road and several feet from the front of
the bus, a car struck and injured her.
The car was operated by David Demoss, and Demoss' liability
for Elena's injuries is stipulated. Demoss is also liable in
damages to Elena's parents, Gary and Josephine Stern, for the
expense of medical treatment provided to Elena to treat her
bodily injuries.
At the time of the accident, Demoss was the named insured
under an automobile liability insurance policy issued by
Cincinnati, which provided limits of $25,000 per person. Elena,
as a resident relative of her parents' household, was insured
under the underinsured motorist provisions of a policy issued to
her parents by State Farm. This policy provided limits of
$100,000 per person. The School Board of the City of Lynchburg,
the owner and operator of the bus, was the named insured under a
vehicle liability insurance policy issued by Graphic Arts. This
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policy covered the bus and provided underinsured motorist
coverage to persons defined as insureds under the policy in the
amount of $1,000,000.
The Graphic Arts policy defines "Insured" to include, inter
alia, those who are injured while "occupying" a covered vehicle.
The policy defines "Occupying" as "in, upon, getting in, on, out
or off." The Virginia uninsured motorist statute, Code § 38.2-
2206, provides that there is coverage for an individual who
"uses," with the expressed or implied consent of the named
insured, the motor vehicle to which the policy applies.
The district court concluded that Elena was neither
"occupying" nor "using" the bus at the time of the accident and,
therefore, was not entitled to underinsured motorist coverage
under the liability policy issued by Graphic Arts.
We accepted for consideration the following questions of law
certified to us by the Fourth Circuit:
1. Was [Elena] "occupying" the school bus, as
that term is defined in the Graphic Arts
policy, when she was injured?
2. Was [Elena] "using" the school bus, as that
term is defined in Virginia Code Ann. § 38.2-
2206, when she was injured?
III
We begin with the first certified question which requires us
to look to the Graphic Arts policy. When the language in an
insurance policy is clear and unambiguous, courts do not employ
rules of construction; rather, they give the language its plain
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and ordinary meaning and enforce the policy as written. Virginia
Farm Bureau Mut. Ins. Co. v. Hodges, 238 Va. 692, 696, 385 S.E.2d
612, 614 (1989); United Services Auto. Assoc. v. Webb, 235 Va.
655, 657, 369 S.E.2d 196, 198 (1988); Atlas Underwriters, Ltd. v.
Meredith-Burda, Inc., 231 Va. 255, 259, 343 S.E.2d 65, 68 (1986).
We think the language in the Graphic Arts policy is clear and
unambiguous.
The policy defines "occupying" as "in, upon, getting in, on,
out or off." The Sterns concede that Elena was not "in" or
"upon" the school bus and that she was not "getting out or off"
the bus. They contend, however, that Elena was "getting in [or]
getting on" the bus. We do not agree.
The terms "getting in" and "getting on" a vehicle must be
read and interpreted in relation to "occupying," the word defined
in the policy. See Casualty Company v. Bristow, 207 Va. 381,
384-85, 150 S.E.2d 125, 128 (1966). The word "occupying" denotes
a physical presence in or on a place or object. Thus, when the
terms "getting in" and "getting on" are read in relation to
"occupying" a school bus, and when the terms are given their
plain and ordinary meanings, they require a close proximity to
the bus.
We do not think that Elena, who was near the center line of
the road when she was struck, was in such close proximity to the
school bus. She was merely approaching the bus, and we cannot
say that she was getting in or on the bus, as contemplated in the
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Graphic Arts policy. Therefore, we answer the first certified
question in the negative.
IV
To answer the second certified question, we look to the
uninsured motorist statute, Code § 38.2-2206. The term
"Insured," as defined by Code § 38.2-2206,
means the named insured and, while resident of the same
household, the spouse of the named insured, and
relatives of either, while in a motor vehicle or
otherwise, and any person who uses the motor vehicle to
which the policy applies, with the expressed or implied
consent of the named insured, and a guest in the motor
vehicle to which the policy applies.
(Emphasis added.) * We must determine, therefore, whether Elena
was "using" the school bus at the time of the accident.
Code § 38.2-2206 recognizes two classes of insureds to each
of which accrues different benefits. Insureds of the first class
are the named insured and, while residents of the same household,
the spouse of the named insured and relatives of either. Such
insureds are entitled to coverage "while in a motor vehicle or
otherwise," even if injured as a pedestrian. Insurance Company
v. Perry, 204 Va. 833, 836, 134 S.E.2d 418, 420 (1964) (decided
under predecessor statute).
Insureds of the second class are guest passengers in or
permissive operators of the motor vehicle to which the policy
applies. Id. at 837, 134 S.E.2d at 420. Such insureds'
*
The definition of "insured" was amended effective July 1,
1995, to include wards or foster children of either the named
insured or the named insured's spouse. Acts 1995, c. 476.
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entitlement to coverage is more narrow than that of insureds of
the first class because insureds of the second class are "`tied
to and limited to actual occupancy'" of a particular motor
vehicle. Cunningham v. Ins. Co. of N. America, 213 Va. 72, 76,
189 S.E.2d 832, 835 (1972) (quoting Sturdy v. Allied Mutual Ins.
Co., 457 P.2d 34, 40 (Kan. 1969)).
In arguing that Elena was "using" the school bus at the time
of the accident, the Sterns rely upon Great American Insurance
Co. v. Cassell, 239 Va. 421, 422-23, 389 S.E.2d 476, 476-77
(1990). In Cassell, a fire fighter, while standing about 20 to
25 feet from his fire truck, was struck and killed by an
uninsured motorist. The truck had transported the fire fighter
to the scene of the fire and had been parked in such a way as to
control traffic and to protect the fire fighters. The fire truck
had brought water, hoses, tools, and other equipment to the
scene. Thus, the truck and its equipment were integral parts of
the mission which had placed the fire fighter in the street;
i.e., the extinguishment of the fire, and the mission had not
been completed when the accident occurred. Under these facts, we
held that the fire fighter was using the fire truck, within the
meaning of the uninsured motorist statute, when he was struck and
killed. Id. at 424, 389 S.E.2d at 477.
We think the Sterns' reliance upon Cassell is misplaced. In
Cassell, the fire fighter began to use the fire truck by riding
in or on it to the scene of the fire. At the scene, the fire
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fighter continued to use the truck and its equipment to
extinguish the fire and to control traffic. Clearly, he was
using the truck when the accident occurred.
In the present case, on the other hand, Elena had made no
such use of the school bus. She had not been a passenger in the
bus, and, although the school bus was utilized by its driver to
create a safety zone for Elena to cross the street, the safety
measures did not constitute a use of the bus by Elena.
We think the present case is controlled by our holdings in
Perry and United States Fire Ins. Co. v. Parker, 250 Va. 374, 463
S.E.2d 464 (1995).
In Perry, we concluded that a police officer, who was
engaged in serving a warrant, was not using his police cruiser at
the time of the accident because, when he was struck by an
uninsured motorist, he had exited the vehicle, placed its keys in
his pocket, and walked 164 feet from it. 204 Va. at 838, 134
S.E.2d at 421. In Parker, we held that a landscape worker, who
had driven the insured pickup truck to the area where the
accident occurred, was not using the vehicle at the time of the
accident because, when she was struck by an uninsured motorist,
she was standing 12 to 15 feet from the vehicle and performing
landscaping duties. She was not "utilizing the truck as a
vehicle" when struck. 250 Va. at 378, 463 S.E.2d at 466.
In the present case, under the narrow coverage afforded
insureds of the second class, Elena clearly was not utilizing the
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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 § 38.2-2206, when she was injured. Consequently,
we hold that the Graphic Arts policy does not provide
underinsurance coverage to the Sterns, and we answer the second
certified question in the negative.
First Certified Question Answered in the Negative.
Second Certified Question Answered in the Negative.
JUSTICE HASSELL, with whom JUSTICE LACY and JUSTICE KEENAN join,
dissenting.
I write separately because I believe that Elena Stern was
"getting on" the school bus as that term is set forth in the
Graphic Arts policy of insurance.
The Graphic Arts policy of insurance defines "occupying" as
"in, upon, getting in, on, out or off." As the majority points
out, Elena was waiting for the public school bus at her
designated bus stop when the bus approached from the north and
stopped, allowing her to board. The bus driver activated the
bus' flashing red lights and safety stop sign and extended the
bus' safety gate. Elena began to cross the road in front of the
gate. She was several feet from the front of the bus when a car
struck her. My experiences, as well as those of thousands of
parents throughout this Commonwealth who accompany children to
bus stops daily, lead me to the inescapable conclusion that,
based upon the aforementioned facts, Elena clearly was getting on
the bus when she was injured.
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Additionally, contrary to the majority's holding, I believe
that Elena was using the bus within the intendment of Code
§ 38.2-2206. The school bus driver had stopped the bus for the
sole purpose of allowing the children to get onto the bus, and,
as the majority admits, the driver activated the bus' flashing
red lights and safety stop sign, and extended its safety gate.
The majority also admits that after the driver had activated the
bus' safety features, Elena began to cross the road "in front of
the gate." The majority's own factual summary indicates to me
that Elena was, at the very least, using the bus' safety devices.
The sole purpose of such devices is to protect school children.
Therefore, I am at a loss to understand the majority's
conclusion that "the safety measures did not constitute a use of
the bus by Elena."
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