Present: All the Justices
UNITED STATES FIRE
INSURANCE COMPANY
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 942184 November 3, 1995
NORA RIVERA PARKER
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
William L. Person, Jr., Judge
In this insurance coverage case, we deal with the "use" of a
motor vehicle in connection with a claim for underinsured
motorist protection afforded by Virginia's uninsured motorist
statute.
On September 8, 1989, appellee Nora Rivera Parker was
employed as a landscape gardener by the manager of Ford's Colony,
a residential development in James City County near Williamsburg.
About 12:00 noon on that day, Parker and two other employees
were planting winter cabbages at the development's entrance
adjacent to Long Hill Road. At that time, one Allen Byran Healy
lost control of a motor vehicle he was operating on the Road and
struck Parker, injuring her.
Subsequently, Parker filed a personal injury action against
Healy seeking recovery in damages as the result of his wrongful
conduct. The vehicle operated by Healy was underinsured.
Later, appellant United States Fire Insurance Company filed
the present declaratory judgment suit naming Parker a defendant,
among others. The insurer had issued a "Business Auto Policy"
covering the Ford's Colony pickup truck that had been driven by
Parker to the site where she was working at the time of the
injury. This liability policy provided underinsurance motorist
coverage in accordance with Code § 38.2-2206, the uninsured
motorist statute. Asserting that Parker claimed underinsured
coverage under its policy, the insurer asked the trial court to
declare that the policy did not provide such coverage for Parker
in her claim against Healy.
As pertinent, Code § 38.2-2206 provides that no policy of
bodily injury or property damage liability insurance "relating to
the ownership, maintenance, or use of a motor vehicle" shall be
issued in the Commonwealth unless it contains provisions
undertaking to pay "the insured all sums that he is legally
entitled to recover as damages" from the operator of an uninsured
or underinsured motor vehicle. Code § 38.2-2206(B) defines the
term "insured" as "any person who uses the motor vehicle to which
the policy applies, with the expressed or implied consent of the
named insured."
Following an evidentiary hearing, the trial court ruled in
favor of Parker. We awarded the insurer this appeal from the
September 1994 order declaring that the insurer must provide
underinsured motorist coverage in the event Parker obtains a
judgment in excess of $25,000, the amount of Healy's coverage.
The facts are not in dispute. On the day in question,
Parker and her co-workers used the Ford's Colony pickup truck,
with Parker driving, to carry them and the cabbages to the
worksite and to transport a rake, trowel, and shovels they needed
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to perform the task of planting the cabbages. A two-way radio
was installed in the truck; they were required to leave the radio
"on" at all times enabling them to receive messages from their
supervisor.
At the site, the trio worked as a team performing specific
tasks directed by Parker. She was to dig holes for the plants,
another worker unloaded the cabbages, and the third worker
planted the cabbages.
Although not directed to do so by their supervisor, they
parked the truck at the site in such a position as to provide a
"safety barrier" to protect them from speeding motorists. They
left a door of the truck open while planting the cabbages so they
could hear the radio.
At the time of the accident, Healy's speeding vehicle left
the paved portion of the Road, struck the truck, and then struck
Parker as she was digging a hole in a flower bed 12 to 15 feet
from the truck. The workers had not completed their task; some
plants remained in the truck and they needed to clean up the
area.
In two prior cases dealing with vehicle "use," we considered
the foregoing statutory provisions. In Insurance Company of
North America v. Perry, 204 Va. 833, 134 S.E.2d 418 (1964), the
question was whether the permissive user of an insured vehicle
was provided protection in the uninsured motorist statute against
an injury that occurs to one "while using" such vehicle. Id. at
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838, 134 S.E.2d at 421. In Great American Insurance Co. v.
Cassell, 239 Va. 421, 389 S.E.2d 476 (1990), we said the issue
was whether the victim's death "arose out of the `use' of" the
insured vehicle Id. at 423, 389 S.E.2d at 477.
Portraying the issue in the present case to be "whether
Parker was using the truck at the time of her accident," the
trial court concluded that Parker's activities constituted "use"
of the vehicle for purposes of the statutory provisions. To
support this conclusion, the court relied upon the facts that
Parker remained close to the truck and the work had not been
completed; also, the truck was being used as a barrier, to load
and unload the plants, and for communication with the supervisor.
Whether the issue is framed as "while using" or "arose out
of the use of," the crucial inquiry is: Was there a causal
relationship between the incident and the employment of the
insured vehicle as a vehicle? See Travelers Ins. Co. v. LaClair,
250 Va. ___, ___, ___ S.E.2d ___, ___ (1995), decided today.
In Perry, the deceased claimant, a police officer engaged in
the act of serving a warrant, was on foot 164 feet away from his
parked police cruiser, the insured vehicle. There, we held that
the officer's fatal injury did not occur while he was using the
vehicle. "He was not then under the canopy of the coverage"
provided by the uninsured motorist statute. 204 Va. at 838, 134
S.E.2d at 421.
In contrast, we concluded in Cassell that the deceased
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claimant, a fire fighter, was an insured for purposes of the
statutory uninsured motorist coverage. There, fire fighters
parked a pumper truck and a tanker truck, the insured vehicles,
on a city street near a disabled car that was on fire. The
deceased, senior officer in charge, rode to the scene in the
pumper truck that was parked with its lights burning 20 to 25
feet from the car.
The fire trucks were being used to restrict or influence the
flow of traffic and to provide a protective barrier for the fire
fighters. A fire hose connected to the deceased's pumper truck
was used to extinguish the fire; the water came from the truck
rather than from a street hydrant. The deceased used a crowbar
he had taken from the pumper truck to open the hood of the
disabled car.
While standing in the street approximately 20 to 25 feet
from his truck, and while completing a required report using a
clipboard from his truck, the deceased was killed by a hit-and-
run driver. Other fire fighters were reloading equipment into
the deceased's truck at the time of the accident.
Notably, we said that employment of the fire truck "to
extinguish the fire, control traffic and protect the fire
fighters, including [the deceased], was an integral part of the
fire fighters' mission. The mission had not been completed when
the accident occurred. Unlike the police officer in Perry, [the
deceased] was engaged in a transaction essential to the use of
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the fire truck when he was killed." 239 Va. at 424, 389 S.E.2d
at 477.
Unlike the deceased in Cassell, the claimant in the present
case was not engaged in a transaction essential to the use of the
pickup truck when she was injured. In other words, she was not
utilizing the truck as a vehicle at that time. She was 12 to 15
feet away from the truck with her foot on a shovel in the act of
digging a hole when struck.
The facts that the workers, independently and not because of
any requirement by Ford's Colony, positioned the truck (which had
no special, emergency warning lights) as a barrier, and that the
radio was operating at the time (it could not be heard unless the
workers were "in close proximity" to it), does not bring this
case within the Cassell precedent. In Cassell, the fire truck's
lights were burning, a hose connected to the truck used water
carried on the truck to extinguish the fire, and emergency
vehicles suitable for use to control traffic were utilized as
barriers at the scene. Here, the truck merely was used as a
means of transportation so that Parker could complete her
landscaping duties.
Consequently, we hold that the court below erred. The trial
court's order will be reversed and final judgment will be entered
here in favor of the insurer declaring that it does not owe
underinsured motorist coverage to Parker under the statutorily
mandated provisions of its insurance contract.
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Reversed and final judgment.
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