Newman v. Erie Insurance Exchange

Present: All the Justices

JOHNNY CALVIN NEWMAN, ET AL.

v. Record No. 980025 OPINION BY JUSTICE BARBARA MILANO KEENAN
November 6, 1998
ERIE INSURANCE EXCHANGE

FROM THE CIRCUIT COURT OF HENRY COUNTY
Martin F. Clark, Jr., Judge

This appeal of a declaratory judgment presents two issues

of motor vehicle insurance coverage involving a child who was

struck by a motor vehicle while walking across a highway to

board a school bus.

The facts in the case are undisputed. One morning in

February 1993, seven-year-old Johnny Calvin Newman waited for

his assigned school bus alongside the eastbound lane of Route 57

in Henry County. Route 57 is a two-lane highway at this

location. The bus came to a stop in the westbound lane, across

the road from Johnny. The bus driver activated the bus' warning

lights and its "stop arm." To board the bus, Johnny had to walk

across the eastbound lane of Route 57 and then cross in front of

the bus. As Johnny was walking across the eastbound lane, he

was struck by a motor vehicle operated by Ephriam Drake Sayers.

The school bus, which was owned by the Henry County School

Board, was insured under the Board's "commercial automobile

liability" insurance policy issued by Erie Insurance Exchange

(Erie). The policy listed the Henry County School Board as the
named insured and included within its uninsured/underinsured

motorist (UM/UIM) coverage "anyone while occupying" a vehicle

insured under the policy. The policy defined "occupying" as "in

or upon, getting into or out of, or getting off." The policy

also was subject to Code § 38.2-2206, which mandates UM/UIM

coverage for, among others, "any person who uses the motor

vehicle to which the policy applies, with the expressed or

implied consent of the named insured."

Johnny, by his parents and next friends Randall and Brenda

Newman, filed a motion for judgment seeking damages for personal

injuries against, among others, the personal representative of

Sayers' estate, the school bus driver, and the School Board.

Pursuant to Code § 38.2-2206(F), a copy of the motion for

judgment was served on Erie as an insurer providing potential

UM/UIM coverage.

Erie filed a bill of complaint for declaratory judgment,

asking the trial court to declare that Johnny was not an insured

under the UM/UIM provisions of the School Board's policy. For

purposes of determining the availability of UM/UIM coverage,

Erie and the Newmans stipulated the above-stated facts

concerning how the accident occurred. They further agreed that

at the time of the accident, Johnny was not riding the bus as a

passenger, was not a guest in the bus, and was not a named

2
insured or family member residing in the same household as a

named insured.

Erie moved for summary judgment, arguing that no material

facts remained in dispute and that it was entitled to judgment

as a matter of law based on this Court's decision in Stern v.

Cincinnati Insurance Company, 252 Va. 307, 477 S.E.2d 517

(1996). The trial court granted the motion for summary judgment

and entered an order concluding that Johnny was not an insured

under the UM/UIM provisions of the Erie policy. The court

stated in its order that Johnny was not "using, occupying,

getting on or getting off of the school bus at the time of the

accident, as per Stern v. Cincinnati Insurance Company."

On appeal, the Newmans argue that Johnny was "occupying"

the school bus at the time of the accident, as that term is

defined in the Erie policy. They assert that since a school bus

is a specialized type of vehicle, the differences involved in

boarding that type of vehicle must be recognized when

interpreting this policy term. They contend that the term

"getting into" an insured vehicle, considered in the context of

boarding a school bus, encompasses the very activity in which

Johnny was engaged.

The Newmans also argue that Johnny was "using" the school

bus at the time of the accident, within the meaning of

Code § 38.2-2206. They contend that since Johnny was struck

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while walking across the road after the bus driver had activated

the bus' specialized safety devices, he was using those devices

and was injured while engaged in an activity essential to the

use of the bus as a vehicle.

In response, Erie argues that our decision in Stern

controls both issues raised in this case. Erie contends that

the facts in Stern are indistinguishable from the facts

presented here, and that the policy language at issue in that

case was very similar to the policy language before us. Thus,

Erie asserts that the doctrine of stare decisis requires a

conclusion that Johnny was not occupying or using the school bus

insured by Erie.

In considering these issues, we determine first whether

Johnny was "occupying" the school bus under the terms of the

Erie policy. As stated above, the policy defines "occupying" as

"in or upon, getting into or out of, or getting off." The

portion of the definition most applicable to the facts of this

case is the term "getting into." The Newmans agree with Erie

that the facts in Stern are indistinguishable from the facts

before us. There, a child was struck and injured by an oncoming

motorist while walking across a road to board a school bus. Id.

at 309, 477 S.E.2d at 518. To board the bus, the child was

required to walk across one complete lane of traffic and then

proceed in front of the bus that was stopped in the other lane.

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She was struck in the lane opposite the lane in which the bus

was stopped, two or three feet from the center line in the road.

Id.

Under policy language that defined "occupying" as "in,

upon, getting in, on, out or off," we held that the child was

not "occupying" the school bus. Id. at 310-11, 477 S.E.2d at

519. We explained that the policy definition must be

interpreted in relation to the term defined and stated that the

word "occupying" "denotes a physical presence in or on a place

or object." Id. at 311, 477 S.E.2d at 519. We held that,

considered in this context, the terms "getting in" and "getting

on" required a close proximity to the bus that was not

demonstrated by the child's location since she was across the

center line of the road from the bus when she was struck. Id.

Under the facts before us, there is no material difference

between the policy language at issue in Stern and the language

of Erie's policy. When Johnny was struck, his location in the

lane opposite the lane in which the bus was stopped did not

place him in such close proximity to the bus as would constitute

a physical presence in or on it. See id. Thus, under the plain

and ordinary meaning of the terms in the Erie policy, Johnny was

not "occupying" the school bus at the time he was struck.

In arguing that he was "using" the bus within the meaning

of Code § 38.2-2206, Johnny acknowledges that acceptance of his

5
position would require us to overrule the portion of Stern in

which we concluded that the child was not using the bus when

struck. There, we held that a bus driver used a bus and its

equipment to create a safety zone for the child, but that "the

safety measures did not constitute a use of the bus by [the

child]." Id. at 312, 477 S.E.2d at 520. We stated that the

child was not using the bus, within the meaning of Code § 38.2-

2206, at the time she was struck "because she was not yet a

passenger of the school bus." Id. at 313, 477 S.E.2d at 520.

In reaching this conclusion, we stated that our holding was

governed by our prior decisions in Insurance Company v. Perry,

204 Va. 833, 836, 134 S.E.2d 418, 420 (1964), and United States

Fire Ins. Co. v. Parker, 250 Va. 374, 463 S.E.2d 464 (1995).

Stern, 252 Va. at 312, 477 S.E.2d at 520.

Code § 38.2-2206(B) 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." The coverage mandated by the statute is limited to

injuries that the permissive user sustained while actually using

the insured vehicle. Edwards v. GEICO, 256 Va. 128, 132, 500

S.E.2d 819, 821 (1998); Randall v. Liberty Mut. Ins. Co., 255

Va. 62, 65, 496 S.E.2d 54, 55 (1998); Perry, 204 Va. at 838, 134

S.E.2d at 421. In determining whether Johnny was actually

"using" the school bus at the time he was injured within the

6
meaning of Code § 38.2-2206, the relevant inquiry is whether

"there was a causal relationship between the accident and the

use of the insured vehicle as a vehicle." Edwards, 256 Va. at

132, 500 S.E.2d at 821 (quoting Randall, 255 Va. at 66, 496

S.E.2d at 56); accord Parker, 250 Va. at 377, 463 S.E.2d at 466;

Travelers Ins. Co. v. LaClair, 250 Va. 368, 372, 463 S.E.2d 461,

463 (1995).

We have illustrated the nature of this causal relationship

in two groups of cases. The first group includes such cases as

Stern, Parker, and Perry, in which we concluded that the injured

persons were not "using" the vehicles in question within the

meaning of Code § 38.2-2206. In Parker, a landscape gardener

drove a pickup truck containing some tools and ornamental

cabbage plants to the entrance of a residential development,

where she parked the truck in a manner to provide a safety

barrier from passing traffic. She left the truck door open in

order to hear a two-way radio located inside the truck and was

struck while planting the cabbages. We concluded that the

gardener was not "using" the truck as a vehicle at the time she

was injured by an uninsured motorist, because she was not

"engaged in a transaction essential to the use of the pickup

truck when she was injured." 250 Va. at 376-78, 463 S.E.2d at

465-66.

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 In Perry, we held that a police officer was not "using" his

vehicle when he was struck and killed while attempting to serve

a warrant. At the time he was struck, the officer had turned

off the engine, left the vehicle, and was walking along a

roadway 164 feet from his police cruiser. 204 Va. at 834, 134

S.E.2d at 419.

The second group of cases discussing the causal

relationship between an accident and the use of an insured

vehicle as a vehicle includes such decisions as Randall and

Great American Insurance Co. v. Cassell, 239 Va. 421, 389 S.E.2d

476 (1990). In those cases, we concluded that the injured party

was "using" the insured vehicle at the time of injury, within

the meaning of Code § 38.2-2206. In Randall, a highway worker

was struck and killed by a vehicle 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 assigned task. The worker was six to ten feet

behind the truck on the shoulder of the road at the time he was

struck. 255 Va. at 64, 496 S.E.2d at 55. We held that the

worker was "using" the insured truck as a vehicle 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.

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 In Cassell, a fire fighter was standing 20 to 25 feet away

from a fire truck when he was struck and killed by an uninsured

motor vehicle. The insured fire truck had transported to the

scene of the fire both the fire fighter and the equipment used

to fight the fire. The truck also was used at the scene as a

physical barrier to restrict the flow of traffic. At the time

the fire fighter was struck, he was using a writing pad and a

clipboard that he had removed 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 his mission, which had

not been completed when he was struck and killed. 239 Va. at

424, 389 S.E.2d at 477.

In Randall, which we decided after Stern, we emphasized

that

actual use of the vehicle for purposes of UM/UIM
coverage mandated by § 38.2-2206 is not restricted to
the transportation function of a vehicle. If the
injured person is 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. In this context, the use of a vehicle
"as a vehicle" requires that at the time of the
injury, the vehicle is being used in a manner for
which it was specifically designed or equipped.

255 Va. at 66, 496 S.E.2d at 56 (citations omitted).

Our holding in Randall raises a question in this case

concerning our earlier holding in Stern. That question is

9
whether there is coverage under Code § 38.2-2206 when an

individual, who has not occupied an insured vehicle, utilizes

the vehicle's specialized safety equipment as an integral part

of performing his mission, with the immediate intent to occupy

the vehicle. Applying the principles expressed in Randall, as

well as those set forth in Edwards v. GEICO, 256 Va. 128, 500

S.E.2d 819, we answer this question in the affirmative.

A school bus driver is required by regulation to activate a

school bus' warning devices "to warn approaching traffic to stop

and allow pupils to cross the highway safely." 8 VAC 20-70-80.

This regulation, enacted pursuant to the Board of Education's

authority under Code § 22.1-177, illustrates the fact that the

school bus' warning devices are intended for the child's use.

Therefore, there is a dual use of the bus' specialized safety

equipment. The bus driver uses the bus' specialized safety

equipment to warn approaching traffic to stop, and the child

uses the safety equipment as an integral part of his mission of

walking across the street to board the bus.

Our decision in Stern, however, recognized only the bus

driver's use of the specialized safety equipment. The decision

effectively equated "use" of the bus with occupancy by stating

that the child "clearly was not utilizing the bus as a vehicle

because she was not yet a passenger of the school bus, and,

therefore was not using the bus, within the meaning of Code

10
§ 38.2-2206, when she was injured." 252 Va. at 313, 477 S.E.2d

at 520.

In no other case have we held that "use" of an insured

vehicle, under Code § 38.2-2206, requires that an injured party

be an occupant of the insured vehicle at some time prior to

sustaining an injury. Moreover, we held to the contrary in

Edwards, our most recent case addressing "use" of an insured

vehicle under Code § 38.2-2206. There, a man was injured in the

process of removing a flat tire from an automobile owned by an

acquaintance. He did not drive or ride in the insured vehicle

prior to being struck by the uninsured vehicle. Instead, he was

using the insured vehicle's tire jack and spare tire to change

the tire with the intention of driving the car to have the flat

tire repaired. We concluded that he was "using" the insured

vehicle, within the meaning of Code § 38.2-2206, because he

utilized the insured vehicle's equipment as an integral part of

his mission with the immediate intent to drive the vehicle after

replacing the tire. 256 Va. at 133, 500 S.E.2d at 821. *

*
Unlike the present case, the facts presented in Edwards
did not place our ruling in Stern before us for reconsideration.
In Edwards, we were presented with two certified questions from
the United States Court of Appeals that did not involve the use
of an insured vehicle's specialized safety equipment by the
injured motorist. Thus, in restating the ruling in Stern that
the child was not using the bus, we were not addressing the
merits of that decision, but were stating only why that holding
was inapplicable to the facts in Edwards.

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 In light of Randall and Edwards, we are compelled to

overrule the holding in Stern that a child injured under the

facts presented was not "using" the school bus, within the

meaning of Code § 38.2-2206. Thus, under the facts now before

us, we conclude that Johnny was using the school bus as a

vehicle at the time he was injured, based on his use of the bus'

specialized safety equipment and his immediate intent to become

a passenger in the bus. Those facts establish the required

causal relationship between the accident and Johnny's use of the

bus as a vehicle.

In reaching this decision, we have given deliberate

consideration to the critical role that the doctrine of stare

decisis serves in insuring the stability of the law. See

Selected Risks Insurance Co. v. Dean, 233 Va. 260, 265, 355

S.E.2d 579, 581 (1987). However, we have a duty of equal

dignity to reexamine critically our precedent and to acknowledge

when our later decisions have presented an irreconcilable

conflict with such precedent. See Nunnally v. Artis, 254 Va.

247, 253, 492 S.E.2d 126, 129 (1997).

Under Stern, only children who have exited a school bus

under the protection of the bus' safety equipment could be

entitled to UM/UIM coverage when injured in a lane opposite the

lane in which the bus was stopped. Yet, children injured in the

same location while walking across the street to board the same

12
bus under the protection of the same specialized safety

equipment would be denied such coverage. Our action today also

is taken to eliminate this paradox resulting from the

application of Stern.

For these reasons, we will affirm in part, and reverse in

part, the trial court's judgment. We will enter final judgment

declaring that Johnny was "using" the school bus at the time of

the accident, within the meaning of Code § 38.2-2206, and was

entitled to coverage under the UM/UIM portion of the Erie

policy.

Affirmed in part,
reversed in part,
and final judgment.

JUSTICE COMPTON, with whom CHIEF JUSTICE CARRICO joins,
dissenting.

"In Virginia, the doctrine of stare decisis is more than a

mere cliché. That doctrine plays a significant role in the

orderly administration of justice by assuring consistent,

predictable, and balanced application of legal principles. And

when a court of last resort has established a precedent, after

full deliberation upon the issue by the court, the precedent

will not be treated lightly or ignored, in the absence of

flagrant error or mistake." Selected Risks Ins. Co. v. Dean,

233 Va. 260, 265, 355 S.E.2d 579, 581 (1987).

13
 Established precedents ought not to vary with every change

in the appellate court's personnel. Kelly v. Trehy, 133 Va.

160, 169, 112 S.E. 757, 760 (1922). Frequent overruling of an

appellate court's decisions tends to bring adjudications of the

tribunal "into the same class as a restricted railroad ticket,

good for this day and train only." Smith v. Allwright, 321 U.S.

649, 669 (1944) (Roberts, J., dissenting). Responsible

decisionmaking leaves no room for "jurisprudence of doubt."

Planned Parenthood v. Casey, 505 U.S. 833, 844 (1992).

In common law cases, the interest in stability demands

uniformity and certainty, particularly when rules of property

and contract have been established. W. M. Lile, Some Views On

The Rule of Stare Decisis, 4 Va. L. Rev. 95, 101 (1916). Dean

Lile expressed the doctrine of stare decisis in general terms:

"A decision by a court of last resort, in a litigated

controversy, on a question of law necessarily involved in the

judgment, becomes a precedent within that jurisdiction, for

subsequent cases involving substantially similar facts." Id. at

97.

But the interest in stability is not the only interest

stare decisis serves in common law cases. There are other

concerns relating to the manner in which appellate judges decide

cases. For example, "respect for precedent encourages the Court

to be fair by reminding the Justices to treat like cases alike."

14
Note, Constitutional Stare Decisis, 103 Harv. L. Rev. 1344, 1349

(1990). Moreover, "respect for precedent helps promote public

confidence in the law." Id. If an appellate court does not

respect its own precedent, then the public, the bench, and the

bar are less likely to have confidence in the decisions that are

made. Furthermore, employing the doctrine of stare decisis

assures the public that an appellate court's judgments are not

arbitrary and that the court is controlled by precedent that is

binding without regard to the personal views of its members.

Id.

Against the background of these settled principles, a bare

majority of this Court, in a case construing a contract, today

overrules a holding that is merely two years old. The accident

facts here and in Stern v. Cincinnati Ins. Co., 252 Va. 307, 477

S.E.2d 517 (1996), are substantially identical; the contract

provisions are the same; and, the issues are identical. Yet a

Court majority (including three members who were in the minority

in Stern, and who ought to feel bound by it), strains to draw

distinctions that make no difference and says that the holding

on "use" in Stern should be jettisoned. I cannot agree.

The decision on that question of law was necessarily

involved in the judgment in Stern and should be binding, as

here, in a subsequent case with substantially similar facts. No

flagrant error or mistake was made in Stern, which was decided

15
after full deliberation upon the issue by the Court.

Parenthetically, I note the "irreconcilable conflict" with the

Stern precedent, mentioned by the majority, is created by the

analysis it advances in this case.

Accordingly, I would affirm the declaratory judgment of the

trial court in all respects.

JUSTICE KOONTZ, dissenting.

I respectfully dissent. In my view, the sole issue

presented in this appeal is whether case law subsequent to Stern

v. Cincinnati Insurance Company, 252 Va. 307, 477 S.E.2d 517

(1996), warrants reconsideration of the issues decided by that

case. The majority, relying upon Randall v. Liberty Mut. Ins.

Co., 255 Va. 62, 496 S.E.2d 54 (1998), and Edwards v. GEICO, 256

Va. 128, 500 S.E.2d 819 (1998), reasons that this Court has

adopted a more expansive view of what constitutes “using” an

insured vehicle within the meaning of Code § 38.2-2206(B) and,

thus, our holding in Stern has been called into question. I

disagree.

Randall dealt with an individual who was struck and killed

by a vehicle while placing lane closure signs along the side of

the highway. At that time, he was using the specialized safety

equipment of the insured vehicle, which he had driven to the

site, to create a safety zone in which to complete his assigned

16
task. We held that these circumstances constituted a use of the

insured vehicle with the meaning of Code § 38.2-2206(B).

Randall, 255 Va. at 67-68, 496 S.E.2d at 57.

In Edwards, we held that an individual who was neither the

driver nor a passenger of the insured vehicle was nonetheless

“using” the vehicle within the meaning of Code § 38.2-2206(B)

since he was using specialized equipment associated with the

vehicle to change a flat tire on the vehicle. Moreover, when he

was struck and injured by another vehicle, Edwards was in

physical contact with the insured vehicle. We held that his

utilization of the insured vehicle’s equipment coupled with his

intent to drive the vehicle immediately after replacing the tire

constituted “using” the vehicle within the meaning of Code

§ 38.2-2206(B). Edwards, 256 Va. at 133, 500 S.E.2d at 821.

The underlying rationale of Randall and Edwards was that in

each case the action of the injured person constituted a use of

the insured vehicle within the meaning of Code § 38.2-2206(B)

because there was a causal relationship between the accident and

the use of the vehicle as a vehicle even though the actual use

was unrelated to the transportation function of the vehicle.

This was a logical extension of our decision in Great American

Insurance Co. v. Cassell, 239 Va. 421, 424, 389 S.E.2d 476, 477

(1990). However, nothing in Randall suggests that this

rationale would apply to every individual injured while located

17
within a safety zone created by specialized equipment of an

insured vehicle. Nor does the application of this rationale in

Edwards to a non-passenger, who was actually using specialized

equipment while in physical contact with the vehicle,

necessarily extend coverage under the statute to every

individual who incurs an incidental benefit from specialized

equipment of a vehicle. Indeed, both of these questions were

previously resolved in Stern.

In Stern, the student, when injured, was within a safety

zone created by the activation of the specialized safety

equipment of the insured bus by the bus driver for the student’s

benefit prior to completing her intended mission of becoming a

passenger on the bus. Under those specific facts in Stern, we

determined that the student was not “using” the school bus

within the meaning of Code § 38.2-2206(B). Unlike the

circumstances in Randall, the student in Stern was not within

the safety zone as a user of the vehicle. Unlike the

circumstances in Edwards, the student in Stern was not

physically in contact with the vehicle, nor was she utilizing

the bus’s specialized safety equipment in a manner that

constituted a use of the vehicle as a vehicle. Thus, at the

time of her injury, Stern was not yet “using,” within the

meaning of Code § 38.2-2206, the bus she intended to board. The

facts of the present case are indistinguishable from those in

18
Stern, and accordingly, I would hold that our decision in Stern

remains viable and controls the outcome of the present case.

For these reasons, I would affirm the declaratory judgment

of the trial court in all respects.

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