Slagle v. Hartford Ins. Co. of the Midwest

Present: All the Justices

NORMAN H. SLAGLE
OPINION BY
v. Record No. 031052 JUSTICE LAWRENCE L. KOONTZ, JR.
April 23, 2004
HARTFORD INSURANCE COMPANY
OF THE MIDWEST

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
E. Preston Grissom, Judge

In this appeal of a declaratory judgment action, we

consider whether an injured person who did not previously occupy

or immediately intend to occupy an insured motor vehicle was

“using” the insured motor vehicle within the meaning of Code

§ 38.2-2206(B) at the time he was injured and, thus, entitled to

underinsured motorist coverage.

BACKGROUND

The material facts are undisputed. On November 18, 1999,

at approximately 5:00 a.m., Norman H. Slagle, the vice-president

and construction manager of Vico Construction Corporation

(Vico), met Tim Askew, an employee of Vico, at the corporation’s

road widening project on Kempsville Road in the City of

Chesapeake. Slagle’s mission was to indicate to Askew where a

large piece of construction equipment was to be located after it

was unloaded from a tractor-trailer Askew had driven to the

site. The tractor-trailer was owned by Vico and insured under a

commercial automobile insurance policy issued by Hartford
Insurance Company of the Midwest (Hartford), providing

$1,000,000 in uninsured and underinsured motorist coverage.

Along the course of the road widening project, Kempsville

Road consisted of two through traffic lanes flanked by right and

left turn lanes. In order to unload the construction equipment

from the tractor-trailer at the desired location, it was

necessary for Askew to back the vehicle from a driveway and then

along the right side of Kempsville Road. To assist Askew in

accomplishing that maneuver, Slagle stood behind the tractor-

trailer and gave hand signals that Askew was able to observe

through the tractor’s side view mirror. Askew activated the

emergency flashers located on the tractor and at the rear of the

trailer. The vehicle also had an audible back-up alarm, which

was activated when Askew began to back the vehicle.1 Although

Askew had portable orange hazard triangles available in the

vehicle, he did not utilize them.

While Slagle was directing the tractor-trailer into the

desired position, he was struck by a vehicle driven by Liberty

G. Billones. At that time, Slagle was standing 10 to 30 feet

behind the tractor-trailer, and Billones was traveling in the

1
The tractor was also equipped with a pole-mounted,
rotating amber caution light. The record is unclear whether
this light was activated. However, as will become clear,
whether this light was activated at the time of the accident is
not pertinent to our resolution of this appeal.

2
far right lane of Kempsville Road. Slagle subsequently brought

suit against Billones for injuries he suffered as a result of

the accident. Billones’ insurance company tendered the full

amount of liability insurance coverage available under her

policy. Hartford refused to also provide underinsured motorist

coverage to Slagle under its policy issued to Vico.

While his suit against Billones was pending, Slagle filed a

motion for declaratory judgment against Hartford seeking a

declaration that he was an insured under the underinsured

motorist provisions of the policy Hartford had issued to Vico.

Hartford responded, denying that Slagle was an insured under the

terms of the policy. Specifically, Hartford asserted that

Slagle was not an insured under the policy because he “was not

an operator or occupant of [the insured] vehicle at the time of

the accident. He was a pedestrian.”

The matter ultimately matured for resolution at a hearing

before the trial court. By agreement of the parties, the trial

court received into evidence and considered a stipulation of

facts, a deposition of Billones, and ore tenus testimony from

Slagle reflecting the circumstances under which the accident

occurred. Slagle and Hartford filed motions for summary

judgment and supporting briefs.

On December 6, 2002, the trial court issued an opinion

letter stating that “Code of Virginia §38.2-2206(B) affords

3
[Slagle] no relief under the facts presented in this case.” On

February 7, 2003, the trial court entered a final order awarding

summary judgment to Hartford.2 We awarded Slagle this appeal.

DISCUSSION

Slagle’s claim to underinsured coverage under Hartford’s

policy in this case is premised upon the mandate of Code § 38.2-

2206(A) that motor vehicle liability insurance policies provide

uninsured and underinsured coverage to persons insured under the

policies. That Billones’ vehicle was underinsured is not at

issue. The parties’ dispute is whether Slagle is an insured

under Hartford’s policy covering Vico’s tractor-trailer. Code

§ 38.2-2206(B), in pertinent part, defines “insured” as “any

person who uses the motor vehicle to which the policy applies”

with the consent of the named insured. (Emphasis added).

Consent is not an issue. Thus, the focus of our analysis in

this case is whether Slagle was using the tractor-trailer in

question at the time he was struck by Billones’ vehicle.

Determining the circumstances under which persons not

occupying or actually operating the insured vehicle at the time

2
Judge Frederick H. Creekmore, Sr. presided during the
evidentiary hearing on the parties’ cross-motions for summary
judgment and issued the opinion letter stating the rationale
underlying the ruling in this case. Judge Creekmore also
oversaw the post-judgment proceedings. The record does not
disclose the reason for Judge Grissom entering the final
judgment order.

4
they are injured in a motor vehicle accident are entitled to

uninsured or underinsured motor vehicle insurance has been the

subject of a number of our prior decisions. Apparently, the

issue continues to vex litigants and the trial courts as

evidenced by the contrasting positions asserted here by Slagle

and Hartford in their markedly differing interpretations of

those decisions.

Slagle asserts that use of a motor vehicle as contemplated

by Code § 38.2-2206(B) does not require operation, occupancy, or

contact of the insured vehicle. He further asserts that this

Court has identified the following three factors relevant to the

resolution of the issue of use of an insured vehicle by a non-

occupant: “(1) causal relationship between the accident and the

use of the vehicle as a vehicle, (2) use of the vehicle to

perform an integral part of the mission and (3) use of vehicle

[safety] equipment, including warning lights and flashers.” In

support of these assertions, and the further assertion that he

has satisfied all of these factors, Slagle relies upon Edwards

v. Government Employees Insurance Co., 256 Va. 128, 500 S.E.2d

819 (1998); Newman v. Erie Insurance Exchange, 256 Va. 501, 507

S.E.2d 348 (1998); Randall v. Liberty Mutual Insurance Co., 255

Va. 62, 496 S.E.2d 54 (1998); and Great American Insurance Co.

v. Cassell, 239 Va. 421, 389 S.E.2d 476 (1990).

5
 Relying upon these same decisions, Hartford concludes that

this Court has never extended coverage under Code § 38.2-2206(B)

where the injured person did not previously occupy or

immediately intend to occupy the insured vehicle. In addition,

Hartford asserts that even when prior occupancy or the immediate

intent to occupy the insured vehicle is established, the injured

person must have also used specialized safety equipment or tools

from the vehicle as an integral part of his mission in order to

qualify as using the insured vehicle. Hartford relies upon

United States Fire Insurance Co. v. Parker, 250 Va. 374, 463

S.E.2d 464 (1995) and Insurance Company of North America v.

Perry, 204 Va. 833, 134 S.E.2d 418 (1964) to support this

assertion.

We take this opportunity to revisit certain prior decisions

in an effort to give additional insight and guidance to the

proper resolution of the issue presented under Code § 38.2-

2206(B) with regard to the required use of an insured motor

vehicle. Initially, we agree with Hartford that our prior

decisions on this subject have dealt exclusively with instances

in which the injured person had previously occupied, or had the

immediate intent to occupy, the insured vehicle. See Newman,

256 Va. at 503, 507 S.E.2d at 349 (injured child crossing street

to board school bus); Edwards, 256 Va. at 130, 500 S.E.2d at

819-20 (injured person changed flat tire and intended to drive

6
car to service station); Randall, 255 Va. at 63, 496 S.E.2d at

54-55 (injured highway worker drove employer’s truck to place

closure signs along highway work site); Parker, 250 Va. at 376,

463 S.E.2d at 465 (injured landscape gardener drove company

truck to work site); Cassell, 239 Va. at 422, 389 S.E.2d at 476

(injured firefighter traveled to scene of fire in fire pump

truck); Perry, 204 Va. at 834, 134 S.E.2d at 419 (injured police

officer drove police car to serve warrant). However, we have

not previously considered a case, such as the present one, where

the injured party neither previously occupied nor immediately

intended to occupy the insured vehicle.

A careful review of these cases reveals that occupancy or

immediate intent to occupy the insured vehicle did not dictate

the distinctions we drew and the different results we reached in

them. In Cassell, where we held that the injured firefighter

was using the fire truck, we distinguished Perry, where we held

that the injured police officer was not using the police car.

We noted that the firefighter was “engaged in a transaction

essential to the use of the fire truck when he was killed.” 239

Va. at 424, 389 S.E.2d at 477. We also noted that, in contrast,

the police officer in Perry was not using the police car when he

was struck and killed by a passing vehicle 164 feet away from

the police car while he was in the process of serving a warrant.

Id.

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 Following Perry and Cassell, we again considered the issue

of use of an insured vehicle as contemplated by Code § 38.2-

2206(B) in Parker. In that case, a landscape gardener was

injured by a passing vehicle while she was planting cabbages

adjacent to the public road. She had driven her employer’s

truck to the work site to transport the cabbages and tools

necessary to plant them. She parked the truck in a position to

provide a safety barrier to protect her from speeding motorists.

She was struck while digging a hole for the cabbages 12 to 15

feet from the truck. Parker, 250 Va. at 376, 463 S.E.2d at 465.

In Parker, we observed that the critical inquiry in determining

the issue of use contemplated by the statute is whether there

was “a causal relationship between the incident and the

employment of the insured vehicle as a vehicle.” Id. at 377,

463 S.E.2d at 466. We addressed that inquiry and distinguished

Cassell, finding that Parker was not engaged in a transaction

essential to the use of the insured vehicle when she was

injured. Id. at 378, 463 S.E.2d at 466.

In Randall, we held that an injured highway worker was

using the insured truck for purposes of Code § 38.2-2206(B)

while placing lane closing signs along the highway because the

“truck’s warning equipment, and the procedures prescribed for

putting out the lane closure signs which incorporated the use of

the warning equipment, made [the injured party’s] truck, like

8
the fire truck in Cassell, a specialized vehicle, one designed

to be used for more than simply transportation.” Randall, 255

Va. at 67, 496 S.E.2d at 57. In reaching our decision in

Randall, we distinguished Parker on the grounds that the insured

vehicle in that case had no special warning lights and was not

required by the employer to be positioned to create a safety

zone and, thus, was . . . “ ‘merely used as a means of

transportation’ ” to the work site. Id., 496 S.E.2d at 56

(quoting Parker, 250 Va. at 378, 463 S.E.2d at 466). Most

significantly, we noted that “[i]f 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 [underinsured]

coverage under § 38.2-2206.” Randall, 255 Va. at 66, 496 S.E.2d

at 56. We also noted that the coverage mandated by this statute

for use of a vehicle is not limited to the transportation

function of the vehicle. Id.

In Edwards, we determined that Randall and Cassell

compelled the conclusion that the person injured by a passing

vehicle while he was in the process of changing a flat tire on

an insured vehicle by using the vehicle’s jack and spare tire

was using the vehicle as contemplated by Code § 38.2-2206(B).

Edwards, 256 Va. at 133, 500 S.E.2d at 821. We reasoned that

his mission was to drive the vehicle to a service station to

have the tire repaired and that an integral part of that mission

9
required the use of the vehicle’s equipment. Thus, we held that

the injured person was “in the process of performing a

transaction essential to the use of the insured vehicle when he

was struck.” Id. As we had in Randall and in Parker, we again

noted that in determining whether an injured person was using

the insured vehicle at the time he was injured the relevant

inquiry is whether “there was a causal relationship between the

accident and the use of the insured vehicle as a vehicle.” Id.

at 132, 500 S.E.2d at 821.

Finally, in Newman we relied upon Randall and Edwards and

concluded that a student “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 [the student’s] use

of the bus as a vehicle.” Newman, 256 Va. at 509, 507 S.E.2d at

352.

It should become apparent from this review of these cases

addressing the requirements for an injured person to qualify as

a person who “uses” an insured vehicle as contemplated by Code

§ 38.2-2206(B), that the critical inquiry is whether there was a

causal relationship between the incident and the employment of

the insured vehicle as a vehicle. It should also be apparent

that because the resolution of that inquiry is necessarily

10
dependent upon the particular factual circumstances of each

case, the inquiry does not lend itself to resolution by strict

guidelines or a set formula. Rather, we have established some

general guidelines. The injured person must be using the

insured vehicle as a vehicle and as an integral part of his

mission. Actual use of the vehicle as a vehicle is not

restricted to its transportation function. See, e.g., Randall,

255 Va. at 66, 496 S.E.2d at 56. Use of the vehicle need not be

the direct, proximate cause of the injury “in the strict legal

sense.” State Farm Mutual Auto Insurance Co. v. Powell, 227 Va.

492, 500, 318 S.E.2d 393, 397 (1984).

In this context, the assertions made by both parties in the

present case miss the mark. To the extent that Slagle suggests

that we have established a list of factors that are dispositive

in resolving the issue of use contemplated by Code § 38.2-

2206(B), we disagree. To the extent that Hartford suggests that

occupancy or the immediate intent to occupy the insured vehicle

is a prerequisite to the coverage afforded by this statute or

that in the latter circumstance the injured person must have

utilized the special safety equipment of the insured vehicle, we

also disagree. Occupancy, the immediate intent to occupy the

insured vehicle, and the utilization of special safety equipment

are several of many factors, if relevant in a particular case,

11
which may be considered in resolving the issue of use

contemplated by the statute.

In the present case, the insured tractor-trailer was being

employed to transport and ultimately position a large piece of

construction equipment along a public road which was to be

widened by Vico. In order to position the construction

equipment at the desired place at the construction site, it was

necessary for the driver to back the tractor-trailer from a

driveway and then along the side of the road. Slagle, in his

capacity as vice-president and construction manager of Vico, was

present at the scene before the driver began this maneuver.

Slagle’s mission was to direct the driver to the place where the

equipment was to be located when it was unloaded from the

tractor-trailer. Slagle did so by giving hand signals, which

were observed by the driver through the tractor’s side view

mirror, while Slagle stood 10 to 30 feet behind the vehicle.

Clearly the tractor-trailer under those circumstances was being

used as a “vehicle” within the meaning of Code § 38.2-2206(B).

The question is whether Slagle was using it in that capacity.

Although the driver of the tractor-trailer activated the

vehicle’s emergency flashers and audible back-up alarm, there is

no factual basis to conclude that this safety equipment

effectively created a safety zone for Slagle. Moreover, there

is no factual basis for a conclusion that Slagle relied upon

12
them for that purpose. Nevertheless, Slagle’s hand signals to

the driver effectively determined the direction and movement of

the tractor-trailer and were required by the driver for the

completion of the intended maneuver of the vehicle.

Accordingly, there was a causal relationship between the

incident in which Slagle was injured and the employment of the

tractor-trailer as a vehicle because Slagle’s acts in assisting

the driver of that vehicle were an integral part of Slagle’s

mission to locate the construction equipment at a particular

place on his company’s construction site.3 In reaching this

conclusion we note that it was not necessary for Slagle to have

physical contact with the tractor-trailer to assist the driver.

Indeed, in order for Slagle to have an adequate field of view

and to see and communicate with Askew, it would have been

necessary for him to be some distance away from and to the side

and rear of the vehicle. Similarly, it was not necessary for

Slagle to have previously occupied or immediately intended to

occupy the tractor-trailer to use that vehicle to accomplish his

3
Expanding on an argument made on brief, Hartford asserted
during oral argument of this appeal that direction of a vehicle
by visual and audible signals cannot constitute use of the
vehicle because this would unreasonably expand the class of
persons entitled to uninsured and underinsured coverage to
include police officers directing traffic, tower dispatchers
directing the movement of trucks in freight yards, and other
similar cases. We emphasize that our decision in this case is
predicated on the specific facts under which Slagle’s injury
occurred.

13
mission. Contrary to Hartford’s assertion, under the undisputed

facts of this case Slagle was not a mere pedestrian at the time

he was injured.

For these reasons, we hold that, under the circumstances of

this case, Slagle was using the tractor-trailer in a manner

contemplated by Code § 38.2-2206(B) and, thus, was an insured

entitled to the underinsured motorist coverage applicable to

that vehicle. We further hold that the trial court erred in

entering summary judgment for Hartford and denying summary

judgment to Slagle.

CONCLUSION

Accordingly, we will reverse the judgment of the trial

court and enter final judgment for Slagle.

Reversed and final judgment.

JUSTICE KINSER, with whom JUSTICE LACY joins, dissenting.

Contrary to the majority’s conclusion, today’s decision

will “unreasonably expand the class of persons entitled to

uninsured and underinsured coverage to include police officers

directing traffic, tower dispatchers directing the movement of

trucks in freight yards, and other similar cases.” Therefore, I

respectfully dissent.

In deciding whether uninsured or underinsured coverage is

mandated by the provisions of Code § 38.2-2206 in a factual

14
context such as the present one, the dispositive question is

whether “the injured person [was] using the insured vehicle as a

vehicle and as an integral part of [his/her] mission when . . .

injured.” Randall v. Liberty Mutual Insurance Co., 255 Va. 62,

66, 496 S.E.2d 54, 56 (1998); see also, Newman v. Erie Insurance

Exchange, 256 Va. 501, 508, 507 S.E.2d 348, 352 (1998); United

States Fire Insurance Co. v. Parker, 250 Va. 374, 377-78, 463

S.E.2d 464, 466 (1995); Great American Insurance Co. v. Cassell,

239 Va. 421, 424, 389 S.E.2d 476, 477 (1990). Under the

specific facts of this case, the relevant question is whether

Norman H. Slagle (“Slagle”), is entitled to coverage under Code

§ 38.2-2206 when he did not occupy the insured vehicle, did not

use the vehicle’s specialized equipment, and had no immediate

intent to occupy the vehicle? I answer that question in the

negative.

As the majority acknowledges, the driver of the tractor-

trailer activated the emergency flashers and audible back-up

alarm on the vehicle, but Slagle did not utilize that safety

equipment to accomplish his mission of directing the tractor-

trailer to the location where the construction equipment was to

be unloaded. Nor did the safety equipment create a zone of

safety for Slagle because he was standing 10 to 30 feet behind

the tractor-trailer. Instead, Slagle merely gave hand signals

to the driver of the tractor-trailer in order to assist in the

15
movement of the vehicle to a particular place. In my view, the

giving of hand signals unaccompanied by the use of any

specialized equipment on the tractor-trailer is insufficient to

constitute use of the vehicle “as a vehicle” within the meaning

of Code § 38.2-2206(B). I do not dispute that the tractor-

trailer was being used as a vehicle. But, as the majority

notes, the “question is whether Slagle was using it in that

capacity.” Slagle’s use of the vehicle is the factor missing in

this case. Our prior decisions illustrate that point.

In Cassell, we found that a fire fighter was using a fire

truck when he was struck and killed by a hit-and-run driver

because he was engaged in a transaction essential to the use of

the fire truck at the time of the accident. There, the fire

truck and its specialized equipment were used “to extinguish the

fire, control traffic and protect the fire fighters, including

Cassell.” 239 Va. at 424, 389 S.E.2d at 477. Next, in Randall,

we concluded that a worker was using his employer’s pickup truck

when he was struck and killed by a motorist as he placed lane

closure signs along a highway. 255 Va. at 67, 496 S.E.2d at 57.

“The truck’s warning equipment, and the procedures prescribed

for putting out the lane closure signs which incorporated the

use of the warning equipment, made [the pickup] truck, like the

fire truck in Cassell, a specialized vehicle, one designed to be

used for more than simply transportation.” Id. When the worker

16
was struck, he “was using the truck’s specialized equipment to

perform his mission.” Id.

Similarly, in Edwards v. Government Employees Insurance

Co., 256 Va. 128, 132, 500 S.E.2d 819, 821 (1998), we focused on

the injured individual’s use of the insured vehicle’s equipment

to accomplish his mission. There, that individual was using the

vehicle’s jack to remove a flat tire and to place a spare tire

on the vehicle so that he could then drive the vehicle to a

service station to have the flat tire repaired. Id. at 133, 500

S.E.2d at 821. The individual was “in the process of performing

a transaction essential to the use of the insured vehicle when

he was struck” by an automobile driven by an uninsured motorist.

Id. Because of the use of the vehicle’s equipment and the

immediate intent to drive the vehicle, we concluded “that there

was a causal relationship between the accident and [the injured

individual’s] use of the vehicle as a vehicle.” Id. Likewise,

we held in Newman, 256 Va. at 509, 507 S.E.2d at 352, that a

child “was using [a] 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.”

By contrast, in Parker, a closer case on the facts than the

present one in my view, we found that a pickup truck, which had

no specialized equipment or emergency warning lights and which

17
was used by landscape gardeners to carry them, their cabbages,

and necessary gardening tools to their worksite, “merely was

used as a means of transportation.” 250 Va. at 378, 463 S.E.2d

at 466. The gardeners parked “the truck at the site in such a

position as to provide a ‘safety barrier’ to protect them from

speeding motorists” and left the door of the truck open in order

to hear a two-way radio and receive messages from their

supervisor. Id. at 376, 463 S.E.2d at 465. The injured

gardener was struck by a speeding vehicle while she was digging

a hole in a flower bed approximately 15 feet from the pickup

truck. Id. We found those facts insufficient to bring that case

within the Cassell precedent and denied underinsured motorist

coverage to the injured gardener. Id. at 378, 463 S.E.2d at

466-67.

Unlike the fire fighter in Cassell, the worker in Randall,

the individual changing the tire in Edwards, or the child in

Newman, Slagle was not using any of the tractor-trailer’s

specialized equipment at the time of the accident to perform his

mission. I do not necessarily believe that Slagle had to occupy

the vehicle or had to have an immediate intent to do so. Nor do

I disagree with the majority’s assertion that “Slagle’s acts in

assisting the driver of [the tractor-trailer] were an integral

part of Slagle’s mission to locate the construction equipment at

a particular place on his company’s construction site.”

18
Nevertheless, the fact remains that the only action Slagle took

with regard to the tractor-trailer was to use hand signals to

direct the driver. Without something more such as utilizing the

vehicle’s specialized equipment, Slagle was not using the

insured vehicle “as a vehicle” within the meaning of Code

§ 38.2-2206(B). Thus, there can be no causal relationship

between the accident and Slagle’s use of the vehicle “as a

vehicle” because he never used the tractor-trailer.

The majority’s decision today will indeed expand the class

of persons entitled to uninsured and underinsured coverage. If

a passing motorist had stopped to assist the driver of the

tractor-trailer by giving hand signals to direct the movement of

that vehicle, the motorist would now be entitled to coverage

under Code § 38.2-2206. For the reasons stated, I respectfully

dissent and would affirm the judgment of the circuit court.∗

∗
Slagle’s argument that he was a “named insured” under the
policy in question is not encompassed within his assignments of
error. Thus, I will not address that argument.

19