PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
THOMAS M. STONE,
Plaintiff-Appellee,
v.
No. 95-1110
LIBERTY MUTUAL INSURANCE
COMPANY,
Defendant-Appellant.
THOMAS M. STONE,
Plaintiff-Appellant,
v.
No. 95-1148
LIBERTY MUTUAL INSURANCE
COMPANY,
Defendant-Appellee.
Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge.
(CA-94-560-2)
Argued: December 4, 1995
Decided: January 28, 1997
Before HAMILTON, WILLIAMS, and MOTZ, Circuit Judges.
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Reversed and remanded with instructions by published opinion. Judge
Williams wrote the opinion, in which Judge Hamilton and Judge
Motz joined.
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COUNSEL
ARGUED: Alan Brody Rashkind, FURNISS, DAVIS, RASHKIND
& SAUNDERS, P.C., Norfolk, Virginia, for Appellant. Robert Lee
Samuel, Jr., CLARK & STANT, P.C., Virginia Beach, Virginia, for
Appellee. ON BRIEF: Stephen C. Swain, S. Geoffrey Glick, CLARK
& STANT, P.C., Virginia Beach, Virginia, for Appellee.
_________________________________________________________________
OPINION
WILLIAMS, Circuit Judge:
We certified a question of Virginia substantive law to the Supreme
Court of Virginia, which has now answered our question. See Stone
v. Liberty Mut. Ins. Co., No 96-0412, 1996 WL 726888 (Va. Dec. 16,
1996). Applying Virginia law as articulated in Stone, we conclude
that Thomas Stone is not an "insured" for purposes of the Virginia
uninsured/underinsured motorist statute, see Va. Code Ann. § 38.2-
2206 (Michie Supp. 1996), and therefore is ineligible to receive unin-
sured motorist benefits under Tidewater Pizza, Incorporated's insur-
ance policy with Liberty Mutual Insurance Company. Accordingly,
we reverse the judgment of the district court and remand with instruc-
tions to enter judgment in favor of Liberty Mutual.
I.
A.
The facts are recited in our order of certification as well as the
opinion of the Supreme Court of Virginia, see Stone, 1996 WL
726888, at *1-*2. Therefore, we shall only briefly repeat them here.
Liberty Mutual issued a commercial business automobile policy to
Tidewater Pizza, naming Tidewater Pizza as the insured and insuring
two automobiles, a Honda and a Ford, both of which were owned by
Tidewater Pizza. The policy provided uninsured1 motorist coverage
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1 The parties and the Supreme Court of Virginia used the term "unin-
sured" to refer to both underinsured and uninsured drivers. For the sake
of consistency, we shall do likewise.
2
with limits of $350,000 to two classes of potential insureds: Tidewa-
ter Pizza and its family members; and persons occupying a "covered
auto."
The policy defined "insureds" as:
1. You are an insured for any covered auto.
2. Anyone else is an insured while using with your per-
mission a covered auto you own, hire or borrow except:
a. The owner of a covered auto you hire or bor-
row from one of your employees or a member of
his or her household.
b. Someone using a covered auto while he or she
is working in a business of selling, servicing,
repairing or parking autos unless that business is
yours.
c. Anyone other than your employees, a lessee or
borrower or any of their employees, while moving
property to or from a covered auto.
3. Anyone liable for the conduct of an insured described
above is an insured but only to the extent of that liability.
However, the owner or anyone else from whom you hire or
borrow a covered auto is an insured only if that auto is a
trailer connected to a covered auto you own .
(J.A. at 47.)
The policy defined "covered auto" for purposes of liability cover-
age to include automobiles Tidewater Pizza did not own, lease, hire,
or borrow but which it used in connection with its business; but for
purposes of uninsured motorist coverage, the term"covered auto" was
defined to include "[o]nly those autos you own which, because of the
law in the state where they are licensed or principally garaged, are
required to have and cannot reject uninsured motorists insurance."
3
(J.A. at 26.) Stone conceded that he was not occupying a motor vehi-
cle owned, leased, hired, or borrowed by Tidewater Pizza.
B.
Stone was a part-time employee of Tidewater Pizza, for whom he
delivered pizzas. In making his deliveries, Stone used his own auto-
mobile and was responsible for providing his own transportation.
Stone's automobile was not owned, leased, hired, or borrowed by
Tidewater Pizza, nor was Stone's automobile listed on Tidewater
Pizza's policy with Liberty Mutual. While Stone was lawfully operat-
ing his automobile in the scope of his employment, he was struck by
an automobile driven by Carol Drye. As a result of this collision,
Stone suffered serious physical injuries. Consequently, he success-
fully sued Drye in state court and obtained a judgment of $250,000
plus interest and costs.
Drye's liability insurance coverage, however, was limited to
$25,000. Therefore, to satisfy his judgment, Stone filed a declaratory
judgment action in Virginia state court against Liberty Mutual, seek-
ing a declaration that he was entitled to uninsured motorist coverage
under Tidewater Pizza's policy with Liberty Mutual. The case was
removed to federal district court on the basis of diversity of citizen-
ship, and the parties filed cross-motions for summary judgment.
The district court concluded that the policy violated Virginia's
uninsured/underinsured motorist statute, see Va. Code Ann. § 38.2-
2206A (Michie Supp. 1996), by failing to provide uninsured motorist
coverage equal to the liability coverage it extended to drivers of cov-
ered automobiles like Stone. Accordingly, the district court granted
summary judgment in favor of Stone, reforming the policy to provide
uninsured coverage for Stone in the amount of $225,000 plus costs
and interest.2 We expressed concern regarding the district court's
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2 The district court rejected Stone's alternative contention that he was
covered under the policy because he was a "family member" of Tidewa-
ter Pizza and thereby "insured" under the policy and subsection 38.2-
2206B of the Code of Virginia, see Va. Code Ann. § 38.2-2206B (Michie
Supp. 1996). Explaining that the term "family member" as defined both
4
holding that Liberty Mutual was liable, and finding no Virginia
authorities directly controlling, we certified this question to the
Supreme Court of Virginia: Whether Tidewater Pizza's policy with
Liberty Mutual violated subsection 38.2-2206A, because Stone is an
insured under subsection 38.2-2206B. In light of the Supreme Court
of Virginia's answer to our question, our concern was well-founded.
II.
Rule 56(c) of the Federal Rules of Civil Procedure requires that the
district court enter judgment against a party who,"after adequate time
for discovery . . . fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on which
that party will bear the burden of proof at trial." Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). To prevail on a motion for sum-
mary judgment, a party must demonstrate that: (1) there is no genuine
issue as to any material fact; and (2) it is entitled to judgment as a
matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986). If the evidence "is so one-sided that one party must prevail
as a matter of law," we must affirm the grant of summary judgment
in that party's favor. Id. at 252. A party"cannot create a genuine issue
of material fact through mere speculation or the building of one infer-
ence upon another." Beale v. Hardy, 769 F.2d 213, 214 (4th Cir.
1985). As the Anderson Court explained,"[t]he mere existence of a
scintilla of evidence in support of the plaintiff's position will be insuf-
ficient; there must be evidence on which the jury could reasonably
find for the plaintiff." Anderson, 477 U.S. at 252. We review a district
court's grant of summary judgment de novo. See Cooke v. Manufac-
tured Homes, Inc., 998 F.2d 1256, 1260 (4th Cir. 1993). Guided by
this procedural standard, we analyze Stone's claim.
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in subsection 38.2-2206B and the policy was unambiguous, the district
court relied on Insurance Co. of North America v. Perry, 134 S.E.2d 418
(Va. 1964), to conclude that Stone was not a "family member" of Tide-
water. Stone cross-appeals the district court's alternative ruling. We
agree with the district court that the rationale of Perry controls disposi-
tion of this issue and affirm that portion of the district court's order.
Accordingly, that issue was not certified to the Supreme Court of Vir-
ginia.
5
A.
The Virginia uninsured motorist insurance statute provides in perti-
nent part:
[N]o policy or contract of bodily injury or property damage
liability insurance relating to the ownership, maintenance, or
use of a motor vehicle shall be issued or delivered . . . to the
owner of such vehicle or shall be issued or delivered by any
insurer licensed . . . upon any motor vehicle principally
garaged or used in this Commonwealth unless it contains an
endorsement or provisions undertaking to pay the insured all
sums that he is legally entitled to recover as damages from
the owner or operator of an uninsured motor vehicle, within
limits not less than [those provided by statute]. Those limits
shall equal but not exceed the limits of the liability insur-
ance provided by the policy, unless any one named insured
rejects the additional uninsured motorist insurance coverage
. . . . The endorsement or provisions shall also obligate the
insurer to make payment for bodily injury or property dam-
age caused by the operation or use of an underinsured motor
vehicle to the extent the vehicle is underinsured, as defined
in subsection B of this section.3
Va. Code Ann. § 38.2-2206A (Michie Supp. 1996). According to the
Supreme Court of Virginia, subsection 38.2-2206A"merely recit[es]
those circumstances under which policies providing bodily injury lia-
bility insurance . . . must contain endorsements agreeing to pay `the
insured' certain sums that such insured is legally entitled to recover
from the owner or operator of an uninsured motor vehicle." Stone,
1996 WL 726888 at *4. As applied here, subsection 38.2-2206A does
not "require that all the same vehicles and insureds be covered under
both liability and uninsured motorist coverages of the same policy."
Id. Thus, although this subsection mandates that limits of uninsured
motorist coverage be equal to the limits of liability insurance, it does
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3 Since Stone's accident, the Virginia legislature has amended the rele-
vant statutory sections. Because the amendments are minor and in no
way affect the disposition of this case, we quote from the current statu-
tory language.
6
not mandate that all types of coverage be similar. Standing alone,
therefore, subsection 38.2-2206A does not render Liberty Mutual lia-
ble for Stone's injuries. Because subsection 38.2-2206A does not pro-
vide coverage for Stone, we turn to subsection 38.2-2206B to
determine if it extends coverage to Stone.
B.
The uninsured motorist statute defines "insured":
"Insured" as used in subsection[ ] A . . . of this section
means the named insured and, while resident of the same
household, the spouse of the named insured, and relatives,
wards or foster children 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 con-
sent of the named insured, and a guest in the motor vehicle
to which the policy applies or the personal representative of
any of the above.
Va. Code Ann. § 38.2-2206B (Michie Supp. 1996). Under this sub-
section, the Supreme Court of Virginia concluded that Liberty Mutual
is not liable to Stone, offering two reasons to support its conclusion.
First, the court examined the language of the subsection, which it con-
cluded excluded Stone's automobile from coverage. Second, the court
explained that Tidewater Pizza simply lacked authority under the Lib-
erty Mutual policy to permit Stone to use his own automobile, yet be
covered under the policy.
First, in analyzing subsection 38.2-2206B, the Supreme Court of
Virginia examined the term "motor vehicle." According to the court,
the language of this subsection does not refer to"`a,' `any,' `every,'
or `all,'" motor vehicles, but specifically to"`the' motor vehicle."
Stone, 1996 WL 726888, at *4. Such precise, exclusive language nec-
essarily means "the Honda" or "the Ford" -- automobiles owned by
Tidewater Pizza -- not any other automobile, such as Stone's auto-
mobile. See id.
Second and paramount, the court explained that one operating a
"motor vehicle must do so `with the expressed or implied consent of
7
the named insured,'" id. at *4, and here the named insured, Tidewater
Pizza, "cannot give permission to use a vehicle that the named insured
does not own," id. at *5. Because Tidewater Pizza did not own
Stone's automobile, it could not grant him permission to use his auto-
mobile for purposes of coverage under its policy with Liberty Mutual.
In reaching this conclusion, the court rejected Stone's contentions that
he was operating a "covered auto" or that he had the implied consent
of Tidewater Pizza to use his automobile because he was performing
duties within the scope of his employment:
The "expressed or implied consent" language of the sub-
section modifies "the motor vehicle to which the policy
applies" clause. If the legislature . . . had meant to include
as insureds of the second class occupants of non-owned
vehicles, [it] would have used [such] language. . . . The
uninsured motorist statute contains no such expansive lan-
guage.
Simply put, "the vehicle" referred to in subsection (B)
includes only owned, not non-owned vehicles. Thus, there
is no statutory mandate that requires the courts to ignore the
insurer's policy language as written.
Id. Stone, therefore, is not covered under the policy. Consequently,
Liberty Mutual is not liable. Given this conclusion, the judgment of
the district court must be reversed with instructions to grant judgment
in favor of Liberty Mutual.
III.
Applying Virginia law, the Supreme Court of Virginia concluded
that Stone was not an insured under the Liberty Mutual policy issued
to Tidewater Pizza, and we must honor this conclusion. Therefore, we
reverse the judgment of the district court and remand with instructions
to grant judgment in favor of Liberty Mutual.
REVERSED AND REMANDED WITH INSTRUCTIONS
8