Present: All the Justices
PETER EDWARDS
v. Record No. 972635 OPINION BY JUSTICE BARBARA MILANO KEENAN
June 5, 1998
GOVERNMENT EMPLOYEES
INSURANCE COMPANY
UPON QUESTIONS OF LAW CERTIFIED BY THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Under the provisions of Rule 5:42, the United States Court
of Appeals for the Fourth Circuit certified to this Court two
questions of Virginia law asking whether a plaintiff in a
personal injury action was "using" or "occupying" a motor
vehicle at the time he was struck by another car. The facts as
stated in the certification order are set forth below.
Terry Presmont asked Peter Edwards, an acquaintance, to
change a flat tire on Presmont's car that was parked on a street
in the District of Columbia. Presmont gave Edwards a key to the
car. Edwards did not enter the driver's area of the car or use
the key for any purpose other than to open the trunk.
Edwards took the jack and the spare tire out of the trunk.
He intended to install the spare tire in order to drive the car
to a service station to have the flat tire repaired. After
raising the car with the jack, Edwards began to take off the lug
nuts to remove the flat tire. Before he could remove all the
lug nuts, he was struck in the ankle by a car driven by an
uninsured motorist. Edwards suffered a fractured ankle for
which he received medical treatment.
At the time of the accident, Presmont was a Virginia
resident. Her car was insured by a motor vehicle liability
insurance policy (Policy) issued in Virginia by Government
Employees Insurance Company (GEICO). The Policy provides
liability coverage to insured persons occupying the insured
vehicle. The term "insured" is defined by the Policy in
relevant part as "any other person while occupying an insured
motor vehicle." "Occupying" is defined by the Policy as "in or
upon or entering into or alighting from" the insured vehicle.
Edwards, a resident of the District of Columbia, filed a
complaint against GEICO in the United States District Court for
the District of Maryland (Southern Division), seeking damages
for his personal injuries under the uninsured motorist and
medical payment provisions of the Policy. GEICO filed a motion
for summary judgment, asserting that Edwards did not qualify as
an "insured" under Code § 38.2-2206 * because he was not "using"
*
At the time of Edwards' injury, Code § 38.2-2206(B)
provided:
"Insured" as used in subsections A, D, G, and H of this
section 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
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the insured vehicle at the time of the accident. GEICO also
argued that Edwards was not "occupying" the insured vehicle
within the meaning of the Policy definition.
The district court granted GEICO's motion for summary
judgment, concluding that Edwards was neither "using" nor
"occupying" the insured vehicle at the time of the accident.
Edwards noted an appeal to the United States Court of Appeals
for the Fourth Circuit, which presented the following certified
questions to this Court:
1. Was Edwards, who at the time of the accident was repairing
a vehicle parked on the street with the intention of
driving it to a service station, "using" the vehicle
within the meaning of Virginia Code § 38.2-2206(B)?
2. Was Edwards, who at the time of the accident was changing
the tire of a vehicle parked on the street with the
intention of driving it to a service station for further
repairs, "occupying" the vehicle within the meaning of the
GEICO policy definition?
Edwards argues before this Court that he was "using" the
insured vehicle at the time he was struck and, therefore,
qualifies as an "insured" under Code § 38.2-2206(B). In support
of this argument, Edwards chiefly relies on Great American
Insurance Company v. Cassell, 239 Va. 421, 389 S.E.2d 476
(1990). There, we held that a fire fighter, who was struck by a
vehicle while standing approximately 20 to 25 feet from his fire
which the policy applies or the personal representative of
any of the above.
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truck, was "using" the truck because he was engaged in a
transaction essential to the truck's use at the time of the
accident. Id. at 424, 389 S.E.2d at 477. Edwards asserts that,
like the fire fighter in Cassell, he was "using" the insured
vehicle when he was struck because the act of changing a flat
tire was essential to use of the car.
Edwards also contends that he was "occupying" the insured
vehicle within the meaning of the Policy definition. Edwards
argues that his close proximity to the insured vehicle and his
intention to occupy the car once his task was completed provide
sufficient evidence to support a conclusion that he was
"occupying" the insured vehicle.
In response, GEICO first asserts that Edwards was not
"using" the insured vehicle when he was struck because the car
was not involved in any "mission" at the time of the accident.
GEICO also argues that Edwards was not "occupying" the insured
vehicle within the meaning of the Policy definition. Citing
Pennsylvania National Mutual Casualty Insurance Company v.
Bristow, 207 Va. 381, 385, 150 S.E.2d 125, 128 (1966), GEICO
contends that Edwards was not "upon" the insured vehicle
because, while he was in close proximity to the car, he did not
have sufficient intent to use it. GEICO also relies on Stern v.
The Cincinnati Insurance Company, 252 Va. 307, 311, 477 S.E.2d
4
517, 519 (1996), in which we held that a child crossing a street
to board a school bus was not "occupying" the bus.
We first consider the question whether Edwards was "using"
the insured vehicle at the time of the accident within the
meaning of Code § 38.2-2206(B). The statute defines "insured,"
in material part, as "any person who uses the motor vehicle to
which the policy applies, with the expressed or implied consent
of the named insured." Id. The coverage mandated by the
statute is limited to injuries sustained by the permissive user
while actually using the insured vehicle. Randall v. Liberty
Mut. Ins. Co., 255 Va. 62, 65, 496 S.E.2d 54, 55 (1998);
Insurance Co. of North America v. Perry, 204 Va. 833, 838, 134
S.E.2d 418, 421 (1964).
In determining whether Edwards was "using" the insured
vehicle at the time he was injured within the meaning of Code
§ 38.2-2206(B), the relevant inquiry is whether "there was a
causal relationship between the accident and the use of the
insured vehicle as a vehicle." Randall, 255 Va. at 66, 496
S.E.2d at 56; accord United States Fire Ins. Co. v. Parker, 250
Va. 374, 377, 463 S.E.2d 464, 466 (1995); Travelers Ins. Co. v.
LaClair, 250 Va. 368, 372, 463 S.E.2d 461, 463 (1995). The
coverage mandated by the statute for "use" of a vehicle is not
limited to the transportation function of the vehicle. Randall,
255 Va. at 66, 496 S.E.2d at 56. "If the injured person is
5
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." Id.; accord Parker, 250 Va. at
377-78, 463 S.E.2d at 466; Cassell, 239 Va. at 424, 389 S.E.2d
at 477.
Our decisions in Randall and Cassell are determinative of
this inquiry. In Randall, a highway worker was struck and
killed by a car while placing lane closure signs along the side
of a highway. He had driven the insured vehicle to the site,
left the engine running, and kept on the flashing yellow bubble
light on top of the truck's cab while completing his task. The
worker was six to ten feet behind the truck on the shoulder of
the road when he was struck.
We observed in Randall that the specialized warning
equipment and its relationship to the worker's task made use of
the truck more than merely a means of transportation. 255 Va.
at 67, 496 S.E.2d at 57. We concluded that the worker was
"using" the insured truck when he was struck because he was
utilizing the truck's specialized equipment to perform his
mission. Id. at 67, 496 S.E.2d at 56-57.
In Cassell, a fire fighter was standing 20 to 25 feet away
from the fire truck when he was struck and killed by a car. The
insured fire truck had transported to the scene both the fire
fighter and the equipment used to fight the fire. The truck
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also was used at the scene as a physical barrier to restrict
traffic flow. At the time the fire fighter was struck, he was
using a writing pad and a clipboard that he had taken from the
truck to complete a required fire incident report. We concluded
that the fire fighter was "using" the fire truck at the time of
the accident because the truck was an integral part of the fire
fighter's mission, which had not been completed when the
accident occurred. 239 Va. at 424, 389 S.E.2d at 477.
Like the highway worker in Randall and the fire fighter in
Cassell, Edwards was using the insured vehicle's equipment at
the time of the accident to perform his mission. That mission
was to drive the car to a service station to have the flat tire
repaired. An integral part of the mission required use of the
jack to remove the flat tire and to place the spare tire on the
vehicle. Thus, Edwards was in the process of performing a
transaction essential to the use of the insured vehicle when he
was struck.
In using the vehicle's equipment to accomplish his mission,
with the immediate intent to drive the vehicle after replacing
the tire, Edwards was using the insured vehicle as a vehicle and
as an integral part of his mission at the time of the accident.
Thus, we conclude that there was a causal relationship between
the accident and Edwards' use of the vehicle as a vehicle. See
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Randall, 255 Va. at 66, 496 S.E.2d at 56; Cassell, 239 Va. at
424, 389 S.E.2d at 477.
We disagree with GEICO's contention that Stern, as well as
Perry, 204 Va. at 833, 134 S.E.2d at 418, compels us to reach a
different conclusion. In Stern, we held that a school bus was
used by its driver to create a safety zone for a child crossing
the street to board the bus, and that the driver's employment of
the safety devices did not constitute a use of the bus by the
child. 252 Va. at 312, 477 S.E.2d at 520. In Perry, we
concluded that a police officer, who was serving an arrest
warrant when struck by an uninsured motorist, was not using his
police cruiser at the time of the accident. We based this
conclusion on the fact that the officer had removed the key from
his vehicle, gotten out, and walked 164 feet away from the
cruiser when he was struck. 204 Va. at 838, 134 S.E.2d at 421.
Unlike Edwards in the present case, the injured persons in Stern
and Perry were not engaged in a transaction essential to the
vehicle's use at the time of the accident. See Cassell, 239 Va.
at 424, 389 S.E.2d at 477. Therefore, we answer the first
certified question in the affirmative.
We next consider the question whether Edwards was
"occupying" the insured vehicle within the meaning of the Policy
definition. The Policy defines "occupying" as meaning "in or
upon or entering into or alighting from" the motor vehicle. We
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considered this same policy definition in Bristow, and we
conclude that our decision in that case primarily governs the
present issue whether Edwards was "occupying" the insured
vehicle. In Bristow, a passenger in a truck had stopped to
render assistance to the owner of a stalled vehicle. In
attempting to restart the stalled vehicle, Bristow, the "Good
Samaritan," leaned over the motor and reached with his hands to
examine some of the wires. During the time that his legs were
touching the car's bumper, a vehicle struck the stalled
automobile from the rear. As a result of the impact, Bristow
was "thrown over in the ditch" and injured. Bristow neither
entered nor intended to enter the disabled vehicle. 207 Va. at
382, 150 S.E.2d at 126.
In considering whether Bristow was "occupying" the stalled
vehicle when he was struck, within the meaning of the policy
definition, we concluded that the determinative question was
whether Bristow was "upon" the stalled vehicle when he was
injured. We observed that the word "upon" must be considered in
relation to the word in the policy that it defines, namely, the
word "occupying." We stated that "a person may be said to be
'upon' a vehicle when he is in a status where he is not actually
'in,' or is not in the act of 'entering into or alighting from,'
the vehicle, but whose connection therewith immediately relates
to his 'occupying' it." Id. at 385, 150 S.E.2d at 128. Based
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on this definition, we held that Bristow was not "upon" the
stalled vehicle and, thus, was not "occupying" it because his
touching of the vehicle was merely incidental to his act of
assisting the driver of the disabled car. Id.
In Stern, we also considered the insurance policy term
"occupying." In concluding that the injured child was not
"occupying" the bus when she was struck "several" feet from the
bus, we observed that the word "occupying" denotes "a physical
presence in or on a place or object." 252 Va. at 311, 477
S.E.2d at 519.
Applying these principles, we conclude that Edwards' act of
attempting to replace the tire on the insured vehicle was not an
act immediately related to occupancy of the vehicle. Although
Edwards ultimately intended to occupy the vehicle, his actions
at the time of the accident immediately related to his attempt
to change the flat tire. Further, Edwards' actions did not
constitute a physical presence in or on the insured vehicle.
Thus, Edwards was not "occupying" the insured vehicle at the
time of the accident within the meaning of the GEICO policy
definition, and we answer the second certified question in the
negative.
First certified question answered in the affirmative.
Second certified question answered in the negative.
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Edwards v. Government Employees Insurance
Court: Supreme Court of Virginia
Date filed: 1998-06-05
Citations: 500 S.E.2d 819, 256 Va. 128
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