Pennsylvania Nat. Mut. Cas. Ins. Co. v. Bristow

Decision Date09 September 1966
Citation207 Va. 381,150 S.E.2d 125
PartiesPENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY v. James Horace BRISTOW et al.
CourtVirginia Supreme Court

A. Christian Compton, Richmond (John G. May, Jr., May, Garrett, Miller, Newman & Compton, Richmond, on brief), for plaintiff in error.

Nathan H. Smith, Richmond, David Nelson Sutton, West Point (A. Scott Anderson, Sands, Anderson, Marks & Clark, Richmond, on brief), for defendants in error.

Before EGGLESTON, C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.

CARRICO, Justice.

This litigation arose out of an automobile accident which occurred on the night of March 18, 1964, on Route 33 near West Point in New Kent County. The same accident was the subject of an earlier opinion, on unrelated issues, by this court in the case of Cowles v. Zahn, 206 Va. 743, 146 S.E.2d 200.

At approximately 8:15 p.m. on the date in question, the automobile of Charles Edward Zahn had stalled while being operated by Zahn in an easterly direction on Route 33. The vehicle came to a stop 'partially on the hard surface' with the right wheels 'in the ditch.'

James Horace Bristow was a passenger in a panel truck also being operated in an easterly direction on Route 33. He and the other three occupants of the truck noticed 'this old man and old lady, Mr. and Mrs. Zahn, on the side of the road.' The driver of the truck passed by the Zahn car and parked his vehicle six or seven truck lengths ahead of the car.

The occupants of the truck returned to the stalled vehicle, found that it had 'cut off in the road,' and offered their assistance to Zahn. The hood of the car was raised and Bristow, standing at the front of the vehicle 'directly in the middle * * * between the two headlights,' leaned over the motor and reached with his hands 'to check some of the wiring.' His legs were touching the bumper and his stomach 'could have been touching' the car.

At that moment, the Zahn automobile was struck in the rear by a vehicle being operated in an easterly direction by Alphonso Nathaniel Cowles. As a result of the impact, Bristow was 'draped over the engine' of the Zahn vehicle, carried to the cast, 'thrown over in the ditch' and injured.

Bristow brought an action for damages against Cowles, who was an uninsured motorist. Pennsylvania National Mutual Casualty Insurance Company, which had issued to Bristow's father a liability policy containing an uninsured motorist endorsement, was served with process. Allstate Insurance Company, which had issued to Zahn a liability insurance policy containing an uninsured motorist endorsement, also was served with process.

Pennsylvania National then filed a motion for declaratory judgment naming Bristow, Cowles, Zahn and Allstate as defendants. The motion prayed that the uninsured motorist endorsement of Allstate's policy be declared to cover Bristow and that such coverage be adjudged the primary coverage owing to Bristow. The motion also prayed that Pennsylvania National be declared not to owe coverage to Bristow under its policy.

The trial court heard the evidence and arguments of counsel and, in a final order, ruled that 'Bristow was not an insured under the policy of insurance issued by the defendant Allstate' and dismissed the motion for declaratory judgment. Pennsylvania National was granted this writ of error.

Allstate, in the uninsured motorist endorsement contained in its policy issued to Zahn, agreed to pay, 'in accordance with Section 38.1--381 of the Code of Virginia * * * all sums which the insured * * * shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of * * * bodily injury * * * sustained by the insured * * * caused by accident and arising out of the * * * use of such uninsured automobile.'

The word 'insured,' as stated in the Allstate policy, means 'the named insured and, while residents of the same household, his spouse and the relatives of either,' and also includes 'any other person while occupying an insured automobile.' The word 'occupying,' as stated in the policy, means 'in or upon or entering into or alighting from.'

Pennsylvania National concedes that its policy, the language of which is similar to Allstate's, was effective on the date of the accident. It contends, however, that Bristow was an insured under the Allstate policy and that Allstate's was the primary coverage because, at the time of the accident, Bristow was 'upon,' and thus 'occupying,' the Zahn vehicle, which was covered by the Allstate policy.

Allstate contends that Bristow was not an insured under its policy because he was not 'occupying' the Zahn vehicle at the time of his injury. Allstate urges that Bristow was entitled to the coverage of Pennsylvania National's policy, issued...

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21 cases
  • Atlantic Mut. Ins. Co. v. Ruiz
    • United States
    • California Court of Appeals Court of Appeals
    • 5 Noviembre 2004
    ..."upon" and required some immediate connection related to "occupying" the insured vehicle. (See Pennsylvania Nat'l Mut. Cas. Ins. Co. v. Bristow (1966) 207 Va. 381, 150 S.E.2d 125, 126-128 [Samaritan injured while looking under the hood at the motor of a stalled vehicle not "upon" the insure......
  • Bratton v. Selective Ins. Co. of Am.
    • United States
    • Virginia Supreme Court
    • 17 Septiembre 2015
    ...in contemporary vernacular—but we have not addressed what that language means. See, e.g., Pennsylvania Nat'l Mut. Casualty Ins. Co. v. Bristow, 207 Va. 381, 384–85, 150 S.E.2d 125, 128 (1966). We take this opportunity to define what it means to be “getting out of” a vehicle for purposes of ......
  • Tata v. Nichols
    • United States
    • Tennessee Supreme Court
    • 11 Enero 1993
    ..."upon" the car. Downing v. Harleysville Insurance Co., 412 Pa.Super. 15, 602 A.2d 871 (1992); Pennsylvania National Mutual Casualty Insurance Co. v. Bristow, 207 Va. 381, 150 S.E.2d 125 (1966). Other jurisdictions, however, have not defined "occupying" so narrowly, and the majority of juris......
  • Halterman v. Motorists Mut. Ins. Co.
    • United States
    • Ohio Court of Appeals
    • 2 Julio 1981
    ...where the claimant was in physical contact with the insured vehicle, he was still not "upon" it. Pennsylvania National Mut. Cas. Ins. Co. v. Bristow (1966), 207 Va. 381, 150 S.E.2d 125. In Bristow, the claimant was a passenger in a truck when he and the other occupants of the truck noticed ......
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