Slagle v. Hartford Ins. Co. of the Midwest, Record No. 031052.
| Decision Date | 23 April 2004 |
| Docket Number | Record No. 031052. |
| Citation | 267 Va. 629,594 S.E.2d 582 |
| Parties | Norman H. SLAGLE v. HARTFORD INSURANCE COMPANY OF THE MIDWEST. |
| Court | Virginia Supreme Court |
Robert L. Mills (Rutter Mills, on brief), for appellant.
Gary Bryant (Kevin L. Keller; Andre D. Wiggins; Willcox & Savage, on brief), Norfolk, for appellee.
Present: All the Justices.
In this appeal of a declaratory judgment action, we consider whether an injured person who did not previously occupy or immediately intend to occupy an insured motor vehicle was "using" the insured motor vehicle within the meaning of Code § 38.2-2206(B) at the time he was injured and, thus, entitled to underinsured motorist coverage.
The material facts are undisputed. On November 18, 1999, at approximately 5:00 a.m., Norman H. Slagle, the vice-president and construction manager of Vico Construction Corporation (Vico), met Tim Askew, an employee of Vico, at the corporation's road widening project on Kempsville Road in the City of Chesapeake. Slagle's mission was to indicate to Askew where a large piece of construction equipment was to be located after it was unloaded from a tractor-trailer Askew had driven to the site. The tractor-trailer was owned by Vico and insured under a commercial automobile insurance policy issued by Hartford Insurance Company of the Midwest (Hartford), providing $1,000,000 in uninsured and underinsured motorist coverage.
Along the course of the road widening project, Kempsville Road consisted of two through traffic lanes flanked by right and left turn lanes. In order to unload the construction equipment from the tractor-trailer at the desired location, it was necessary for Askew to back the vehicle from a driveway and then along the right side of Kempsville Road. To assist Askew in accomplishing that maneuver, Slagle stood behind the tractor-trailer and gave hand signals that Askew was able to observe through the tractor's side view mirror. Askew activated the emergency flashers located on the tractor and at the rear of the trailer. The vehicle also had an audible back-up alarm, which was activated when Askew began to back the vehicle.1 Although Askew had portable orange hazard triangles available in the vehicle, he did not utilize them.
While Slagle was directing the tractor-trailer into the desired position, he was struck by a vehicle driven by Liberty G. Billones. At that time, Slagle was standing 10 to 30 feet behind the tractor-trailer, and Billones was traveling in the far right lane of Kempsville Road. Slagle subsequently brought suit against Billones for injuries he suffered as a result of the accident. Billones' insurance company tendered the full amount of liability insurance coverage available under her policy. Hartford refused to also provide underinsured motorist coverage to Slagle under its policy issued to Vico.
While his suit against Billones was pending, Slagle filed a motion for declaratory judgment against Hartford seeking a declaration that he was an insured under the underinsured motorist provisions of the policy Hartford had issued to Vico. Hartford responded, denying that Slagle was an insured under the terms of the policy. Specifically, Hartford asserted that Slagle was not an insured under the policy because he
The matter ultimately matured for resolution at a hearing before the trial court. By agreement of the parties, the trial court received into evidence and considered a stipulation of facts, a deposition of Billones, and ore tenus testimony from Slagle reflecting the circumstances under which the accident occurred. Slagle and Hartford filed motions for summary judgment and supporting briefs.
On December 6, 2002, the trial court issued an opinion letter stating that "Code of Virginia § 38.2-2206(B) affords [Slagle] no relief under the facts presented in this case." On February 7, 2003, the trial court entered a final order awarding summary judgment to Hartford.2 We awarded Slagle this appeal.
Slagle's claim to underinsured coverage under Hartford's policy in this case is premised upon the mandate of Code § 38.2-2206(A) that motor vehicle liability insurance policies provide uninsured and underinsured coverage to persons insured under the policies. That Billones' vehicle was underinsured is not at issue. The parties' dispute is whether Slagle is an insured under Hartford's policy covering Vico's tractor-trailer. Code § 38.2-2206(B), in pertinent part, defines "insured" as "any person who uses the motor vehicle to which the policy applies" with the consent of the named insured. (Emphasis added). Consent is not an issue. Thus, the focus of our analysis in this case is whether Slagle was using the tractor-trailer in question at the time he was struck by Billones' vehicle.
Determining the circumstances under which persons not occupying or actually operating the insured vehicle at the time they are injured in a motor vehicle accident are entitled to uninsured or underinsured motor vehicle insurance has been the subject of a number of our prior decisions. Apparently, the issue continues to vex litigants and the trial courts as evidenced by the contrasting positions asserted here by Slagle and Hartford in their markedly differing interpretations of those decisions.
Slagle asserts that use of a motor vehicle as contemplated by Code § 38.2-2206(B) does not require operation, occupancy, or contact of the insured vehicle. He further asserts that this Court has identified the following three factors relevant to the resolution of the issue of use of an insured vehicle by a non-occupant: "(1) causal relationship between the accident and the use of the vehicle as a vehicle, (2) use of the vehicle to perform an integral part of the mission and (3) use of vehicle [safety] equipment, including warning lights and flashers." In support of these assertions, and the further assertion that he has satisfied all of these factors, Slagle relies upon Edwards v. Government Employees Insurance Co., 256 Va. 128, 500 S.E.2d 819 (1998); Newman v. Erie Insurance Exchange, 256 Va. 501, 507 S.E.2d 348 (1998); Randall v. Liberty Mutual Insurance Co., 255 Va. 62, 496 S.E.2d 54 (1998); and Great American Insurance Co. v. Cassell, 239 Va. 421, 389 S.E.2d 476 (1990).
Relying upon these same decisions, Hartford concludes that this Court has never extended coverage under Code § 38.2-2206(B) 2206(B) where the injured person did not previously occupy or immediately intend to occupy the insured vehicle. In addition, Hartford asserts that even when prior occupancy or the immediate intent to occupy the insured vehicle is established, the injured person must have also used specialized safety equipment or tools from the vehicle as an integral part of his mission in order to qualify as using the insured vehicle. Hartford relies upon United States Fire Insurance Co. v. Parker, 250 Va. 374, 463 S.E.2d 464 (1995) and Insurance Company of North America v. Perry, 204 Va. 833, 134 S.E.2d 418 (1964) to support this assertion.
134 S.E.2d at 419 (). However, we have not previously considered a case, such as the present one, where the injured party neither previously occupied nor immediately intended to occupy the insured vehicle.
A careful review of these cases reveals that occupancy or immediate intent to occupy the insured vehicle did not dictate the distinctions we drew and the different results we reached in them. In Cassell, where we held that the injured firefighter was using the fire truck, we distinguished Perry, where we held that the injured police officer was not using the police car. We noted that the firefighter was "engaged in a transaction essential to the use of the fire truck when he was killed." 239 Va. at 424, 389 S.E.2d at 477. We also noted that, in contrast, the police officer in Perry was not using the police car when he was struck and killed by a passing vehicle 164 feet away from the police car while he was in the process of serving a warrant. Id.
Following Perry and Cassell, we again considered the issue of use of an insured vehicle as contemplated by Code § 38.2-2206(B) in Parker. In that case, a landscape gardener was injured by a passing vehicle while she was planting cabbages adjacent to the public road. She had driven her employer's truck to the work site to transport the cabbages and tools necessary to plant them. She parked the truck in a position to provide a safety barrier to protect her from speeding motorists. She was struck while digging a hole for the cabbages 12 to 15 feet from the truck. Parker, 250 Va. at 376, 463 S.E.2d at 465. In Parker, we observed that the critical inquiry in determining the issue of use contemplated by the statute is whether there was "a...
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