Present: All the Justices
VIRGINIA FARM BUREAU
MUTUAL INSURANCE COMPANY
v. Record No. 990247 OPINION BY JUSTICE BARBARA MILANO KEENAN
January 14, 2000
CHARMAYNE GILE, AN INFANT, ET AL.
FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
Donald R. Mullins, Judge
In this appeal, we consider whether the trial court erred
in concluding that a child who lives with her mother and her
mother's male companion is the "foster child" of that companion
and, thus, is an "insured" person as those terms are defined in
his motor vehicle liability insurance policy.
The facts in the case are undisputed. In August 1996, 16-
year-old Charmayne Gile was injured in an automobile accident
while riding as a passenger in a vehicle owned and operated by
Maria Lynn Dye. The accident occurred when Dye's vehicle
collided with a vehicle owned and operated by Norman Russell
Carter, Jr. Both vehicles were insured under motor vehicle
liability insurance policies, and the terms of those policies
are not at issue in this appeal.
At the time of the accident, Charmayne lived with her
mother, Tyna Gile, and Tyna Gile's companion, Danny J. Beavers,
Jr., the named insured of the policy at issue in this case.
Tyna Gile and Beavers were not married to each other but had
cohabited since 1989.
Charmayne was not related to Beavers by blood or marriage
and had not been designated as Beavers' ward or foster child in
any legal proceeding. However, Beavers had "acted like
Charmayne's father" since Beavers and Tyna Gile began living
together, and he "look[ed] upon [her] as though she were his own
daughter." Charmayne, in turn, looked to Beavers exclusively
for "paternal love, affection, care, comfort, education,
emotion[al] support, and guidance."
At the time of the accident, Beavers owned an automobile
that was insured under a policy (the policy) issued by the
Virginia Farm Bureau Mutual Insurance Company (Farm Bureau).
The uninsured/underinsured (UM/UIM) motorist provisions of the
policy define "PERSONS INSURED," among other things, as "the
named insured and, while residents of the same household, the
spouse of the named insured, and relatives, wards or foster
children of either." The medical expense benefits provisions of
the policy provide coverage that includes "the named insured or
any relative who sustains bodily injury while occupying a motor
vehicle." The policy defines "relative" as "a person related to
the named insured by blood, marriage or adoption, including
wards or foster children, who is a resident of the same
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household as the named insured." The policy does not define the
term "foster children."
Charmayne, by her next friend, filed a motion for judgment
against Carter alleging that she sustained personal injuries as
a result of his negligence. A copy of the motion for judgment
was served on Farm Bureau pursuant to Code § 38.2-2206. Farm
Bureau then filed a motion for declaratory judgment against
Charmayne, Tyna Gile, and Beavers (collectively, Gile), seeking
a declaration that Charmayne is not an insured person under the
UM/UIM and medical expense benefits provisions of Beavers'
policy.
After considering the parties' admissions and stipulated
testimony, the trial court ruled that Charmayne is Beavers'
"foster child" and, thus, is an insured person under both policy
provisions. The court concluded:
[I]t appears for all intents and purposes, that Danny
Beavers considered Charmayne Gile as his foster child,
as that term is understood using a broad definition;
that the subject policy of insurance did not provide a
definition limiting, qualifying, or excluding the use
of a broad definition; [and] that a foster child
should be afforded the same consideration as a child
by blood or marriage . . .
On appeal, Farm Bureau argues that Charmayne was not
Beavers' "foster child" under the policy provisions because that
term has a clear meaning governed by statute. Farm Bureau
contends that a "foster child" is a child who has been placed in
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a foster home by the Department of Social Services or a court
under a foster care plan, pursuant to Code §§ 16.1-281 and –282,
when the child's natural parents are unable to care for her.
Farm Bureau asserts that the trial court's application of a more
general definition of the term is erroneous because this
application potentially permits an extension of coverage to any
child residing in the home of a named insured.
In response, Gile argues that the term "foster child" is
ambiguous and, therefore, must be strictly construed against the
insurer and in favor of providing coverage. Gile contends that
under common usage, the term "foster child" means "a child
raised by someone who is not [her] natural or adoptive parents,"
and that this general definition should be applied to afford her
coverage under the Farm Bureau policy. Since Charmayne is being
raised by Beavers, who is not her natural or adoptive parent,
Gile asserts that Charmayne is Beavers' "foster child" within
the meaning of this policy term. * We disagree with Gile's
arguments.
The language at issue under the UM/UIM provisions of the
Farm Bureau policy is taken directly from Code § 38.2-2206(B),
*
Gile also raised alternative arguments in the trial court
that Charmayne is Beavers' "ward" or relative by "adoption," as
those terms are used in the policy. Since Gile did not assign
cross-error to the trial court's failure to rule in her favor on
these issues, we do not address these arguments on appeal. Rule
5:18(b).
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which provides in relevant part: "[i]nsured . . . 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." Since this language was drafted by the
legislature, rather than by the insurer, the construction of
this particular policy language presents a question of statutory
interpretation. Although we will construe the statutory
language liberally to accomplish the intended purpose of the
uninsured motorist statute, we nevertheless are bound by the
plain meaning of the words that the legislature chose in
drafting the statute. See Tudor v. Allstate Insurance Co., 216
Va. 918, 921, 224 S.E.2d 156, 158 (1976); Rose v. Travelers
Indemnity Co., 209 Va. 755, 758, 167 S.E.2d 339, 342 (1969).
The above-quoted language of Code § 38.2-2206(B)
unambiguously refers to relationships recognized by law. Since
the term "foster child" is not defined in Code § 38.2-2206 or in
any other section of Title 38.2, we apply the term "foster
child" by reference to other statutes.
While Title 16.1 does not define the term "foster child,"
Code § 16.1-228 defines "[f]oster care services" as
the provision of a full range of casework, treatment and
community services for a planned period of time to a child
who is abused or neglected as defined in § 63.1-248.2 or in
need of services as defined in this section and his family
when the child (i) has been identified as needing services
to prevent or eliminate the need for foster care placement,
(ii) has been placed through an agreement between the local
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board of social services or a public agency designated by
the community policy and management team and the parents or
guardians where legal custody remains with the parents or
guardians, (iii) has been committed or entrusted to a local
board of social services or child welfare agency, or (iv)
has been placed under the supervisory responsibility of the
local board pursuant to § 16.1-293.
By implication, therefore, a "foster child" is a child who
receives "foster care services" under the circumstances
specified in the statute, after a determination has been made
that the child is abused, neglected, or otherwise in need of
services. The record before us does not show that Charmayne is
a recipient of such services. Moreover, Gile admitted in the
trial court that Charmayne "had not been designated as a . . .
foster child of Danny D. Beavers, Jr., by any court or
Department of Social Services or any other government agency."
We conclude, therefore, that the term "foster child," as
used in Code § 38.2-2206(B), does not encompass the type of
relationship Charmayne has with Beavers. A contrary conclusion
is unsupportable because the substance of this type of
relationship can be determined only from a subjective assessment
of its length and quality. Therefore, we hold that the trial
court erred in concluding that Charmayne was covered under the
UM/UIM provisions of Beavers' policy as his "foster child."
We next consider whether the trial court erred in
determining that Charmayne was Beavers' "foster child" under the
medical expense benefits provision of the policy. The term
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"foster child" does not appear in Code § 38.2-2201, the statute
providing for payment of medical expense benefits, but Farm
Bureau incorporated the term in this portion of the contract by
including "foster child" in its definition of "relative." Since
use of the term "foster child" in this part of the policy does
not appear in the context of language taken directly from a
statute, we consider this term in the insurance contract under
familiar principles applicable to the interpretation of
insurance policies. If a term in a policy is ambiguous, we
construe the term in favor of coverage. S.F. v. West Am. Ins.
Co., 250 Va. 461, 464, 463 S.E.2d 450, 452 (1995); Granite State
Ins. Co. v. Bottoms, 243 Va. 228, 234, 415 S.E.2d 131, 134
(1992); Virginia Farm Bureau Mut. Ins. Co. v. Hodges, 238 Va.
692, 696, 385 S.E.2d 612, 614 (1989). However, if the disputed
policy language is unambiguous, we apply its terms as written.
Osborne v. National Union Fire Ins. Co., 251 Va. 53, 56, 465
S.E.2d 835, 837 (1996); Moore v. State Farm Mut. Auto. Ins. Co.,
248 Va. 432, 435, 448 S.E.2d 611, 613 (1994); State Farm Fire
and Cas. Co. v. Walton, 244 Va. 498, 502, 423 S.E.2d 188, 191
(1992).
As stated above, the term "relative" is included in the
policy definition of "injured person" that applies to the
payment of medical expense benefits under the policy.
"Relative" is defined by the policy as "a person related to the
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named insured by blood, marriage or adoption, including a ward
or foster child, who is a resident of the same household." We
conclude that the term "foster child," as employed in this
definition, unambiguously refers to a child who resides in the
same household with the named insured and has a relationship
recognized by law with the named insured. Our conclusion is
based on the context in which the term is used, which
exclusively describes such relationships recognized by law.
Thus, we hold that the term "foster child," as incorporated in
the medical expense benefits portion of the policy, has a
meaning identical to the use of that term in the UM/UIM portion
of the policy.
For these reasons, we will reverse the trial court's
judgment and enter final judgment in favor of Farm Bureau
declaring that Charmayne is not Beavers' "foster child" under
the terms of the policy presented in this appeal.
Reversed and final judgment.
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VIRGINIA FARM BUREAU MUT. INS. v. Gile
Combined Opinion