Present: All the Justices
FREDDIE B. LEXIE, JR., ET AL.
v. Record No. 950227
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY
OPINION BY JUSTICE A. CHRISTIAN COMPTON
April 19, 1996
FREDDIE B. LEXIE, JR., EXECUTOR,
ETC.
v. Record No. 950455
LIBERTY MUTUAL INSURANCE COMPANY
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald H. Kent, Judge
BRIAN M. SKATES
v. Record No. 950791
COLONIAL INSURANCE COMPANY
OF CALIFORNIA
ARNITA M. GOODE
v. Record No. 951049
COLONIAL INSURANCE COMPANY
OF CALIFORNIA
FROM THE CIRCUIT COURT OF APPOMATTOX COUNTY
John R. Snoddy, Jr., Judge
These four consolidated appeals arise from two so-called
"drive-by shootings" involving the operation of motor vehicles.
One incident occurred in the District of Columbia and the other
in the Commonwealth in Prince Edward County.
Each case presents a question of motor vehicle insurance
coverage. The dispositive issue in each is whether an
intentional shooting by a person occupying an uninsured vehicle
constitutes "use" of the vehicle for purposes of uninsured
motorist coverage. In one of the appeals, North Carolina law
applies; in the other three, Virginia law is applicable.
The Lexie Incident
In November 1991, Patricia Dian Bigby Lexie was fatally
injured in the District of Columbia in an unprovoked shooting by
an occupant of an uninsured motor vehicle. At the time, she was
a passenger in a vehicle operated on Interstate 295 by her
husband, Freddie B. Lexie, Jr., who was also injured in the
incident. The Lexies resided in the City of Alexandria; Mrs.
Lexie maintained a separate residence in North Carolina.
The vehicle operated by Lexie was insured by an automobile
liability policy containing uninsured motorist coverage issued in
Virginia by appellee State Farm Mutual Automobile Insurance
Company. At the time of the incident, another automobile
liability policy with uninsured motorist coverage issued in North
Carolina by appellee Liberty Mutual Insurance Company to Mrs.
Lexie was in effect. As pertinent to the issue to be decided in
these appeals, the respective policies obligated the insurer to
pay all sums the insured was legally entitled to recover as
damages from the owner or operator of an uninsured motor vehicle
arising "out of the ownership, maintenance or use of" the
uninsured motor vehicle.
Subsequently, appellant Lexie, individually and as executor
of his wife's estate (collectively, Lexie), made demand upon the
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insurers for payment of benefits under the respective policies.
He also filed an action for damages in federal court against the
owner and operator of the vehicle in which the gunman was riding.
Later, the insurers separately filed the present actions
seeking declaratory judgments that Lexie is not entitled to
coverage under the respective policies. The parties agreed there
were no material facts in dispute, and the insurers sought pre-
trial summary judgment.
The trial court, upon consideration of the pleadings and
argument of counsel, ruled in favor of State Farm, applying
Virginia law, and ruled in favor of Liberty Mutual, applying
North Carolina law.
Lexie appeals the November 1994 State Farm judgment
individually and as executor. He appeals the December 1994
Liberty Mutual judgment in his representative capacity only.
This dichotomy is irrelevant, however, because of the dispositive
issue in the appeals.
The Skates and Goode Incident
In August 1991, appellant Brian M. Skates was operating a
motor vehicle in Prince Edward County. Appellant Arnita M. Goode
was among the passengers in the vehicle, which was owned by her
mother. The group had been to a night club in Farmville where
one Darrell Lee had been involved in an altercation with Skates.
Later, Lee was riding in an uninsured motor vehicle driven by
another person pursuing the Goode vehicle. As the vehicles were
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abreast, Lee leaned from an open window and shot both Skates and
Goode, injuring them.
At the time, the Goode vehicle was insured by an automobile
liability policy containing uninsured motorist coverage issued in
Virginia by appellee Colonial Insurance Company of California.
As pertinent to the issue to be decided in these appeals, the
policy obligated the insurer to pay Skates and Goode all sums
they were legally entitled to recover as damages from the owner
or operator of an uninsured motor vehicle "arising out of the
ownership, maintenance or use of such uninsured motor vehicle."
Subsequently, the insurer denied uninsured motorist claims
submitted by Skates and Goode. They sought payment for their
injuries based upon the conduct of the operator of the vehicle in
which the assailant was riding. Later, the insurer filed the
present action against Skates and Goode seeking a declaratory
judgment that the claimants are not entitled to coverage under
the policy.
The trial court granted the insurer's pre-trial motion for
summary judgment, declaring inter alia that the injuries did not
arise out of the "use" of the uninsured motor vehicle. We
awarded Skates and Goode separate appeals from the March 1995
judgment order.
First, we shall address the Lexie-Liberty Mutual appeal.
Generally, the nature, validity, and interpretation of automobile
insurance policies, like other contracts, are governed by the law
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of the place where made. Woodson v. Celina Mut. Ins. Co., 211
Va. 423, 426, 177 S.E.2d 610, 613 (1970); Lackey v. Virginia Sur.
Co., 209 Va. 713, 715, 167 S.E.2d 131, 133 (1969). The Liberty
Mutual policy was made in North Carolina, issued and delivered
there to Mrs. Lexie covering a vehicle principally garaged in
North Carolina. Thus, the trial court properly applied North
Carolina law, which we shall examine to determine whether the
court correctly ruled "that the firing of gunshots from one
vehicle into another does not arise out of the . . . use of the
vehicle."
The law of North Carolina is consistent with the law of
Virginia on this subject. In North Carolina, coverage for
injuries arising from the "use" of a motor vehicle requires "a
causal connection between the use of the vehicle and the injury."
Scales v. State Farm Mut. Auto. Ins. Co., 460 S.E.2d 201, 203
(N.C. App. 1995). "This connection is shown if the injury is the
natural and reasonable consequence of the vehicle's use." Id.
However, there is no coverage if the injury results from
something wholly disassociated from, independent of, and remote
from the vehicle's normal employment. Id. "Clearly, an
automobile chase with guns blazing is not a regular and normal
use of a vehicle." Id.
In sum, North Carolina law provides that injuries and death
resulting from gunshots fired from a moving automobile do not
constitute an accident arising from the "use" of such vehicle,
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Nationwide Mutual Insurance Co. v. Knight, 237 S.E.2d 341, 344
(N.C. App.), disc. review denied, 239 S.E.2d 263 (N.C. 1977), and
the trial court in the present case correctly so ruled.
Parenthetically, it should be noted that Lexie dwells on the
effect upon the contract issues in this appeal of the default
judgment he obtained against the operator of the assailant's
vehicle in the federal tort action, to which Liberty Mutual was
not a party. The findings of the federal court were not before
the trial court when it ruled on the motion for summary judgment,
and there was no motion filed by Lexie in the trial court based
on the preclusive effect, if any, of the federal judgment. Thus,
we will not entertain these questions for the first time on
*
appeal. Rule 5:25.
Next, we shall turn to the remaining three appeals, applying
Virginia law. These cases are controlled by our recent decision
in Travelers Insurance Co. v. LaClair, 250 Va. 368, 463 S.E.2d
461 (1995). There, the issue was precisely the same as in the
present cases.
In LaClair, a deputy sheriff was injured, while standing on
a public highway, by gunshots intentionally fired by the operator
of an uninsured motor vehicle, who had stopped in front of the
officer's police car. The assailant, partially inside his car at
the time, fired as the officer approached him.
*
Additionally, there is no merit to Lexie's contention that
he is entitled to the benefit of the minimum coverage
requirements of the District of Columbia insurance laws.
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Reversing a trial court's judgment in favor of the officer,
we analyzed our recent insurance coverage cases to address the
question whether the injury arose from the "use" of the uninsured
motor vehicle. We noted "certain basic concepts" that are
uniformly applied to the question, including the rule that
consideration must be given to the intention of the parties to
the insurance contract in determining the scope of the coverage
afforded. Id. at 371, 463 S.E.2d at 463. Importantly, we
emphasized that there must be a causal relationship between the
incident and the employment of the motor vehicle as a vehicle.
Id. at 372, 463 S.E.2d at 463.
In LaClair, we held that the employment of the assailant's
vehicle did not amount to "use" of that vehicle within the
meaning of the policy provisions at issue. We said that even
though the assailant may have utilized the vehicle to lure the
officer into stopping behind him, even though the assailant was
partially inside the car when firing the shots, even though the
assailant employed the car as a shield, even though the vehicle
was employed to facilitate the act producing the injury, and even
though the assailant's vehicle may have been an accessory to the
shooting, none of those acts or circumstances involved the use of
the assailant's vehicle as a vehicle.
Thus, we concluded that the "requisite causal relationship
between the incident and employment of the automobile as a
vehicle does not exist." Id. at 373, 463 S.E.2d at 464. See
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United States Fire Ins. Co. v. Parker, 250 Va. 374, 377-78, 463
S.E.2d 464, 466-67 (1995) (applying the same test in construing
the "ownership, maintenance, or use of a motor vehicle" language
of Code § 38.2-2206, the uninsured motorist statute).
Finally, in LaClair, we observed that "the natural and
ordinary meaning of `use' of a private, passenger motor vehicle
does not contemplate its utilization as a mobile or stationary
pillbox or fortress, or as a shield, or as an outpost from which
an assailant may inflict intentional injury with a firearm."
LaClair, 250 Va. at 373, 463 S.E.2d at 464.
The foregoing statements from LaClair apply with equal force
to these appeals controlled by Virginia law. The several
claimants seek to distinguish the present cases from LaClair upon
the basis that in these cases the vehicles were moving at the
time of the assaults and passengers in the uninsured vehicles,
not the operators, were the assailants.
These are distinctions without any difference, given the
facts of these particular cases. The principal focus is upon the
manner in which the vehicle, whether moving or stationary, is
being employed, not upon the activity or role of any assailant
who may be in, upon, or around the uninsured vehicle.
Consequently, the respective trial courts correctly ruled
that the intentional shootings by persons occupying the uninsured
vehicles did not constitute "use" of the vehicles for purposes of
uninsured motorist coverage, and the judgments below in favor of
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the respective insurers will be
Affirmed.
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