Corriveau ex rel. Ballagh v. State Farm Mut. Auto. Ins. Co.

• Decision Date: 19 December 2019
• Docket Number: Record No. 181533
• Citation: 836 S.E.2d 694
• Parties: Joseph S. CORRIVEAU, BY His Mother and NEXT FRIEND, Tracey BALLAGH v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
• Court: Virginia Supreme Court

836 S.E.2d 694

Joseph S. CORRIVEAU, BY His Mother and NEXT FRIEND, Tracey BALLAGH

v.STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.

Record No. 181533

Supreme Court of Virginia.

DECEMBER 19, 2019

William B. Hopkins, Jr. (Martin, Hopkins & Lemon, on brief), Roanoke, for appellant.

John P. Cattano (Christopher L. Smith, Central Virginia Litigation, on brief), Charlottesville, for appellee State Farm Mutual Automobile Insurance Company.

No brief filed by appellee VACORP.

PRESENT: All the Justices

OPINION BY JUSTICE CLEO E. POWELL

Joseph S. Corriveau, by his mother and next friend, Tracey Ballagh (collectively, "Corriveau"), appeals from the dismissal of his declaratory judgment action in the Circuit Court of the City of Lynchburg ("circuit court"), where he requested a determination that the uninsured motorist provision in Ballagh's automobile insurance policy issued by State Farm Mutual Automobile Insurance Company ("State Farm") provided coverage for his injuries arising from an assault that took place on his school bus. The issue presented on appeal is whether Corriveau's injuries arose out of the use of the school bus as a means of transportation.

I. BACKGROUND

The relevant facts are not in dispute.¹ In September 2009, Ballagh placed Corriveau on a Bedford County school bus so he could be transported to school. Corriveau, who was 10 years old at the time, has autism and was unable to speak. Alice Holland, the bus driver, and Mary Evans, the bus aide, who were aware of Corriveau's disability, used a special needs harness to strap and secure him into his bus seat. They similarly used a special needs harness to secure another child with disabilities, Timothy Kilpatrick ("Timothy"), who sat directly across from Corriveau. The purpose of the harnesses, the only two on the bus, was "to aid in the supervision of special needs children" on the ride to school.

For summary judgment purposes the parties have assumed that, while restrained in his seat, Corriveau witnessed Holland and Evans physically and verbally abuse Timothy. Holland and Evans repeatedly kicked Timothy and slapped his head. Holland also choked Timothy to the point of asphyxiation and made a "conditional death threat." Evans hit him with a flyswatter, elbowed him, aggressively covered his mouth with her hand, pushed his head against the side of the bus, and sprayed a chemical in his face. Evans also struck Corriveau more than once during the incident.

The State Farm policy's uninsured motorist provision covers an insured's damages for bodily injuries that "arise out of the ownership, maintenance, or use" of the uninsured motor vehicle.

The parties filed cross-motions for summary judgment in the circuit court. State Farm argued that coverage under the policy did not apply as a matter of law because Corriveau's alleged injuries did not arise from the use of the school bus as a vehicle in the ordinary manner for which it was designed. State Farm relied on Doe v. State Farm Fire and Cas. Co. , 878 F. Supp. 862, 865-67 (E.D. Va. 1995), in which that court, applying Virginia law, determined that the injuries suffered by the victim of an abduction and sexual assault within a stolen vehicle did not arise from the use of that vehicle as a means of transportation. Quoting from Doe , State Farm argued that the vehicle was merely an enclosure for the commission of the criminal acts. In response, Corriveau asserted that the school bus was being used for its purpose of transporting children with disabilities to school and that the special duty owed by a common carrier supplied the causal nexus between Corriveau's injuries and the use of the bus. Corriveau argued that even if the bus were not being operated by a common carrier, it was a vehicle that contemplated contact between Holland and Evans and the children with special needs on the ride to school.

The circuit court granted State Farm's motion for summary judgment and dismissed the case. The circuit court found that there was no causal connection between Corriveau's injuries and the use of the school bus as a vehicle used to transport children to school. The court determined that, because the alleged conduct was criminal in nature, it was "not normally contemplated by the parties to an automobile liability policy" and, therefore, was not a reasonably foreseeable risk with transporting students to school, "even with the special needs aspect of that transportation."

The circuit court found as a factual matter that the "implements" that caused the injury were "the flyswatter, chemical spray, hands, feet, and elbows." In doing so, it found that none of the "implements" that caused the injuries were "implements of the vehicle. They were all independent of the vehicle itself."

Specifically addressing the harness, the court stated that while the special needs harnesses may have made it easier for the incident to occur, they failed to provide the necessary nexus because "the [incident] could have occurred without the restraints" and Corriveau "would have witnessed [the assault on Timothy], whether he was restrained or not." The court concluded that "the only role the bus played was to provide a location for these acts of assault to occur, and [ ] I don't see that providing the necessary causal connection for the use of the bus ... as a bus." The court reasoned that "the causal relationship of the bus being used as a bus is where this falls short."

This appeal followed.

II. ANALYSIS

Summary judgment may be granted when no genuine dispute of material fact exists. Rule 3:20. "A grant of summary judgment must be based upon undisputed facts established by pleadings, admissions in pleadings, and admissions made in answers to requests for admissions." Andrews v. Ring , 266 Va. 311, 318, 585 S.E.2d 780 (2003). The circuit court "must consider inferences from the facts in the light most favorable to the non-moving party." Id . On appeal, this case presents a mixed question of fact and law that the Court reviews de novo.

Bratton v. Selective Ins. Co. of Am. , 290 Va. 314, 322, 776 S.E.2d 775 (2015).

In analyzing the application of an insurance policy providing coverage for the "ownership, maintenance, or use" of an automobile to the facts of a given case, certain principles established in State Farm Mut. Auto. Ins. Co. v. Powell , 227 Va. 492, 318 S.E.2d 393 (1984), consistently apply. "[C]onsideration must be given to the intention of the parties to the insurance agreement in determining the scope of the coverage afforded." Id. at 500, 318 S.E.2d 393. The " ‘ownership, maintenance, or use’ provision should be construed in the light of the subject matter with which the parties are dealing; the terms of the policy should be given their natural and ordinary meaning." Id . "[T]he critical inquiry is whether there was a causal relationship between the incident and the employment of the insured vehicle as a vehicle ." Simpson v. Virginia Mun. Liab. Pool, 279 Va. 694, 699, 692 S.E.2d 244 (2010) (citation and internal quotation marks omitted). Although the vehicle's use "need not be the direct, proximate cause of the injury," in the strict legal sense, there must be a causal connection between the accident and the use of the vehicle as a vehicle. Powell , 227 Va. at 500, 318 S.E.2d 393. It cannot be "merely incidental or tangential." Erie Ins. Co. Exch. v. Jones , 248 Va. 437, 443, 448 S.E.2d 655 (1994). In assessing the causal relationship, "consideration must be given to what the injured person was doing when he was injured, as well as his purpose and intent, in determining whether that person was in such position in relation to the vehicle to be injured in its ‘use.’ " Powell , 227 Va. at 501, 318 S.E.2d 393. Stated another way,

[w]here such a vehicle is employed in a manner foreign to its designed purpose, e.g., Lexie[ v. State Farm Mut. Auto. Ins. Co., 251 Va. 390, 396-97, 469 S.E.2d 61 (1996) ] (drive-by shooting from moving vehicle); Travelers Insurance Company v. LaClair , 250 Va. 368, 463 S.E.2d 461 (1995) (shooting from behind door of stopped car, using it as a shield), there is no coverage under the uninsured motorist provisions because the resulting injury does not arise out of the "use" of the uninsured vehicle as a vehicle, but instead arises from its employment in a manner contemplated neither by its designers, its manufacturer, nor the parties to the insurance contract.

Fireman's Fund Ins. Co. v. Sleigh , 267 Va. 768, 771-72, 594 S.E.2d 604 (2004).

Applying these principles to the facts of this case, the circuit court did not err in finding that Corriveau's injuries were not covered by the uninsured motorist provision in the State Farm policy in that the injuries in question did not arise out of the use of the school bus as a school bus.² The State Farm policy's uninsured motorist coverage provides that State Farm will pay an insured's damages for bodily injuries that "arise out of the ownership, maintenance, or use" of the uninsured motor vehicle.

When we consider whether there was a causal relationship between the incident and the employment of the school bus as a school bus we conclude that the injuries to Corriveau did not "arise out of the ownership, maintenance, or use" of the school bus. To state the obvious, the bus was to be used as a means of transportation. There was no causal connection between Corriveau's injuries and the use of the school bus as a means of transportation. Here, as in Doe , the school bus was used as a situs for the assault, a use wholly separate from the intended use as a means of transportation. The following hypothetical noted by the Eastern District in Doe , applies with equal force to our facts as it aptly demonstrates the limits of the coverage applied to the "use" of the vehicle:

two passengers who come to blows over an argument in the back seat of an automobile can hardly claim that their resulting injuries arose out of the vehicle's use as a vehicle. In such circumstances, the only relation

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