Lexie v. State Farm Mutual Automobile Insurance

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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