Provident Life and Acc. Ins. Co. v. Barnard

• Decision Date: 23 September 1988
• Docket Number: No. 860150,860150
• Citation: 236 Va. 41,372 S.E.2d 369
• Parties: PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY v. Jerome S. BARNARD. Record
• Court: Virginia Supreme Court

Page 369

372 S.E.2d 369

236 Va. 41

PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY v. Jerome S. BARNARD.

Record No. 860150.

Supreme Court of Virginia.

Sept. 23, 1988.

J. Riley Johnson, Jr., Norfolk (Stephan F. Andrews, Richmond, White, Johnson & Lawrence, Norfolk, on brief), for appellant.

Stanley G. Barr, Jr. (Albert H. Poole, Kaufman & Canoles, P.C., Norfolk, on brief), for appellee.

Present: All the Justices.

POFF, Justice.

The central question we consider in this appeal is whether a group insurance policy covered or excluded a claim for medical expenses.

Jerome S. Barnard suffered serious injuries in an automobile accident on December 27, 1979. In September 1981, Barnard filed a motion for declaratory judgment, asking the court to declare that the medical expenses he incurred were covered by a group insurance policy Barnard's employer, Colonial Stores, Inc. (Colonial), had acquired from Provident Life and Accident Insurance Company (Provident). In September 1982, the trial court entered an order sua sponte directing Barnard to file an amended motion for judgment seeking damages against Provident. Barnard failed to respond, and the litigation remained dormant for more than two years. On November 16, 1984, the court entered yet another order permitting Barnard to file an amended motion for judgment, and Barnard complied. At the conclusion of all the evidence, the court dismissed the jury and entered a final order November 21, 1985 incorporating a letter opinion. The trial court ruled that "the medical expenses incurred by the plaintiff were covered by the defendant's insurance policy" and awarded judgment for Barnard in the sum of $8,982.50.

The controversy stems from the following clause in Provident's policy:

The benefits provided above will not be payable:

....

(b) for expenses incurred for treatment of bodily injuries arising from or in the course of employment;

The relevant facts are not in dispute. Colonial employed Barnard as a field supervisor. As such, he was responsible for hiring and supervising clerks in approximately 30 Colonial stores located on the Peninsula and in Norfolk, Williamsburg, Petersburg, and Richmond. In the discharge of his duties, Colonial expected Barnard to drive from his home in Virginia Beach, travel from store to store as the occasion required, and return to his home at night. Barnard did not have an office, but he reported by telephone "[e]very day" to Colonial's headquarters in Norfolk and went there to pick up his mail and meet with his superiors "two, three times a week."

Colonial agreed to pay Barnard 17 cents per mile as a travel allowance for the use of Barnard's personal car in the performance of his duties. Barnard's superior testified that the travel allowance was payable "from his home when he left in the morning until when he got back at night." Barnard submitted mileage vouchers at irregular intervals, and Colonial paid travel allowance and salary in separate checks.

On the morning of December 27, 1979, Barnard left home, stopped at Colonial's Norfolk headquarters to pick up his mail, and drove to Colonial's store in Grafton. From there, he travelled to the Richmond area where he visited four stores. He left the last store about 5:30 p.m. He was injured en route to his home in Virginia Beach when his car collided with a pickup truck. As a result of the extensive injuries he sustained in that accident, Barnard incurred the medical bills itemized in his claim against Provident.

In his letter opinion, the trial judge said that "we are construing a contract of insurance and not construing the Virginia Workmen's Compensation Act." Consequently, he decided that "it is not deemed necessary by this Court that we refer to or be bound by the Virginia decisions construing the words 'arising out of and in the course of the employment' which are the Workmen's Compensation Act clauses." Thus, because the language of the exclusionary clause, unlike that in the Act, was cast in the disjunctive, the trial court reviewed the evidence to determine whether Barnard's claim resulted from an accident which either arose out of or occurred in the course of his employment with Colonial.

Addressing the first alternative, the trial court ruled that, because the accident occurred while Barnard "was returning home after the conclusion of a day's work, [it] did not 'arise from' his employment." With respect to the second alternative, the court held that the accident had not occurred during the course of his employment within the meaning of the exclusionary clause, despite the fact that Colonial had contracted to pay Barnard for the expense of the travel which resulted in the accident.

We agree that the issue turns on the construction of the contract of medical insurance as applied to the facts in this case. The parties do not disagree. On brief, Barnard reaffirms the statement he made in a memorandum of law at trial in which he acknowledged that "the employment exclusion in defendant's group insurance policy is designed merely to avoid double payment in those cases in which the injured party is covered by workmen's compensation statutes." Similarly, in its petition for appeal, Provident stated that the insurance contract "was designed to avoid double payment when the employee is covered by Workmen's Compensation benefits ... as well as to eliminate any gaps between the two forms of coverage."

We think the trial court erred in holding that our decisions construing the provisions of the Workers' Compensation Act are irrelevant to the analysis. Moreover, for purposes of this opinion, we accept the concession implicit in Provident's assurance that its contract is designed to eliminate coverage gaps, namely, that the language in the exclusionary clause, although cast in the disjunctive, was intended to be synonymous with the conjunctive language defining the workers' compensation test. Cf. Cash v. Health Insurance Corp., 203 Va. 719, 720-22, 127 S.E.2d 119, 120-22 (1962) (disjunctive exclusionary clause referring to employer's liability under Workers' Compensation Act treated as conjunctive). Thus, Provident's contention that Barnard's claim is excluded under the insurance contract has merit only if Barnard's injuries resulted from an "accident ... arising out of and in the course of employment", Code § 65.1-7 (emphasis added), and we will examine such of our workers' compensation precedents as relate to the binary test of compensability prescribed by the Workers' Compensation Act.

In 1925, this Court adopted what is commonly known as the "going and coming" rule: generally, an employee's injuries sustained while going to or from work are not compensable under the Workers' Compensation Act. Kent v. Vir.-Car. Chem. Co., ...