Bratton v. Selective Ins. Co. of Am.

Decision Date17 September 2015
Docket NumberRecord No. 141358.
Citation776 S.E.2d 775,290 Va. 314
PartiesKaren Slone BRATTON, Administrator of the ESTATE OF Richard Linwood SLONE v. SELECTIVE INSURANCE COMPANY OF AMERICA, et al.
CourtVirginia Supreme Court

Frank K. Friedman, Roanoke (Michael P. Gardner ; Neal S. Johnson ; Roanoke, Woods Rogers, on briefs), for appellant

C. Kailani Memmer (Glenn Robinson & Cathey, on brief), Roanoke, for appellee Selective Insurance Company of America.

No brief filed on behalf of appellees Selective Way Insurance Company, Tracie Dowell Nininger, Haulers Insurance Company, Inc., First Liberty Insurance Corporation, Jeffrey Scott Dupree, S. R. Draper Paving Company, and State Farm Mutual Automobile Insurance Company, Charlottesville.



Opinion by Senior Justice LEROY F. MILLETTE, JR.

In this appeal we determine that a road construction employee was (1) “getting out of” the dump truck he was operating and (2) “using” a pickup truck as a safety vehicle, as those terms are used in a motor vehicle insurance policy to establish insurance coverage.


We will defer to the circuit court's determination of the facts unless [such a determination is] unsupported by evidence or plainly wrong [,] because an appellate court lacks the fact-finder's ability to hear and see the witnesses and assess their credibility.” Mongold v. Woods, 278 Va. 196, 204, 677 S.E.2d 288, 293 (2009). Accordingly, our narrative of the facts of this case comes directly from the circuit court's recitation of events as set forth in its written opinion, as supported by the evidence introduced at trial.

A. The Route 419 Project

In February 2008, Ray Sink Pipeline Company (Ray Sink) was acting as general contractor for a project on Route 419 in Roanoke County. The Route 419 project required Ray Sink to lay water lines along the right edge of Route 419's southbound lanes. To accomplish this task, Ray Sink needed to cut a channel in the existing asphalt at the road's edge.

Ray Sink hired S.R. Draper Paving (“Draper Paving”) as a subcontractor for the Route 419 project. Draper Paving provided workers who would follow the progress of Ray Sink's work and fill the open water-line channel with new asphalt. Ray Sink also hired LMC Barricade LLC (“LMC Barricade”) as a subcontractor for the Route 419 project. LMC Barricade was responsible for establishing lane closures and setting up safety warnings, including signage, for the project.

B. Richard Slone's Jobsite Activities

Draper Paving employed Richard Linwood Slone as a dump truck driver, and Slone was assigned to work the Route 419 project hauling loads of hot asphalt to the jobsite. Because of the logistics of the jobsite, Slone could not simply dump the asphalt from the truck into the open water-line channel. Instead, Slone would raise and lower the dump truck's bed to pour asphalt into the bucket of a front-end loader. The front-end loader would then transfer the asphalt into the open water-line channel, and other Draper Paving employees would level the asphalt.

Draper Paving did not originally intend to use a front-end loader in this process. Initially, the crew planned to use a piece of machinery called a “road widener,” but that machine malfunctioned. The switch from the road widener to the front-end loader had two consequences.

First, because the dump truck's bed was wider than the front-end loader's bucket, hot asphalt would spill around the bucket's sides when Slone lifted the dump truck's bed to unload the asphalt. And because the crew was working at night in February, the spilled asphalt cooled quickly on the ground and hardened. To avoid leaving hardened piles of asphalt on the road, Slone would periodically exit the dump truck to check this spillage. If spillage needed to be picked up, Slone would pull the dump truck forward and other Draper Paving employees could scrape the spillage from the road.

Second, before the road widener malfunctioned, the project only required the closure of the right lane of Route 419. However, to use the front-end loader, the operator was required to back into the left lane of Route 419, so he could then turn the loader perpendicular to the dump truck and pull forward to dump the asphalt into the open water-line channel. Such use required periodic closures of the left lane. Draper Paving did not communicate to LMC Barricade the need to close the left lane, and LMC Barricade did not adjust the safety setup or traffic pattern to accommodate this change. Instead, a Draper Paving employee would use a stop/ slow sign and stand in the center of Route 419 to flag motorists whenever the front-end loader needed to maneuver into the left lane.

C. James Harmon's Jobsite Activities

Draper Paving employed James Harmon as a paving superintendent, and Harmon was assigned to work the Route 419 project as the project supervisor.1 Harmon also operated the front-end loader on the night of the accident because the original operator employee was unable to get to work.

To get to the jobsite, Harmon drove a company pickup truck. Harmon used the pickup truck to transport himself, other Draper Paving employees, and tools to the jobsite. It was also Harmon's “regular practice” to use the pickup truck as “a safety tool” by acting as a safety buffer between oncoming traffic and Draper Paving employees. To this end, the pickup truck was outfitted with a safety strobe light that would flash and spin when activated.

Upon arriving at the jobsite for the Route 419 project, Harmon parked the pickup truck near the beginning of the worksite just beyond where the orange safety cones blocked oncoming traffic's access to the right lane of Route 419. Harmon turned on all of the pickup truck's lights, including the headlights, the hazard lights, and the safety strobe light. As Draper Paving's work progressed along the highway, Harmon would move the pickup truck forward so that it would remain in close proximity to the working Draper Paving employees. At the time of the accident, the pickup truck was approximately 200 feet from where Slone and Harmon were working.

D. The Accident

On the second night of the project, shortly after midnight, Slone had just finished unloading asphalt into the front-end loader, and Harmon was getting ready to drop the asphalt from the front-end loader into the open water-line channel. Before that could happen, however, Harmon heard a shout, turned in his seat to see vehicle headlights quickly approaching, and braced for impact. Two drunk drivers driving on Route 419 disregarded the Draper Paving employee who was acting as a flagger, and both vehicles crashed into the front-end loader. The crash spun the front-end loader in a clockwise direction and into Slone's dump truck. After the accident, Draper Paving employees discovered Slone pinned between one of the drunk driver's vehicles, the rear blade of the front-end loader, and the dump truck's left rear tires. Slone died of his injuries.

Bratton and Selective Insurance Company of America (Selective Insurance) filed separate declaratory judgment actions in the Circuit Court of Roanoke County, and these cases were consolidated. Draper Paving had taken out a motor vehicle insurance policy with Selective Insurance (the “Selective Insurance Policy”). Bratton and Selective Insurance sought to determine whether Slone fell within the scope of this Selective Insurance Policy's coverage.

Bratton and Selective Insurance filed cross motions for summary judgment. Because material issues of fact remained in dispute, the circuit court held a bench trial. At the conclusion of this trial, and upon consideration of the evidence and the arguments and briefs of counsel, the circuit court held in a written opinion that at the time of the accident Slone did not fall within the scope of the Selective Insurance Policy. Thus, Bratton was not entitled to insurance proceeds from Selective Insurance. The circuit court entered a final order to this effect, dismissed the declaratory judgment actions with prejudice, and memorialized the parties' stipulation of what insurance proceeds Bratton is entitled to receive in the absence of coverage under the Selective Insurance Policy: proceeds already paid from the two drunk drivers' insurance policies, and proceeds to be paid from Slone's personal motor vehicle insurance policy taken out with State Farm Mutual Automobile Insurance Company (“State Farm”). Later, the court summarily denied Bratton's motion for reconsideration.

Bratton timely appealed to this Court.

A. Standard Of Review

This civil matter was “decided by a court without the intervention of a jury,” and therefore we review the lower court's factual findings with a degree of deference. Code § 8.01–680. We will not hold the circuit court's actions in error as contrary to the evidence “unless it appears from the evidence that such judgment is plainly wrong or without evidence to support it.” Id. And in reviewing the record, we “examine the evidence in the light most favorable to [Selective Insurance], the prevailing party at trial.” Nolte v. MT Tech. Enters., LLC, 284 Va. 80, 90, 726 S.E.2d 339, 345 (2012) (internal quotation marks and citation omitted).

However, the issues before us do not concern simply whether the circuit court's actions were contrary to the evidence. At the center of this appeal is the construction and application of the terms of an insurance contract, which are issues of law that we review de novo. Doctors Co. v. Women's Healthcare Assocs., 285 Va. 566, 571, 740 S.E.2d 523, 525 (2013) ; see also Virginia Farm Bureau Mut. Ins. Co. v. Williams, 278 Va. 75, 80, 677 S.E.2d 299, 302 (2009) (setting forth relevant “established principles of insurance law”). Importantly, this means that we determine de novo not only what contractual terms mean, but also “how those terms apply to the facts of the case.” Spectra–4, LLP v. Uniwest Commercial...

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