Vasaio v. Department of Motor Vehicles

• Decision Date: 13 January 2004
• Docket Number: Record No. 0707-03-2.
• Court: Virginia Court of Appeals
• Parties: Edward A. VASAIO v. DEPARTMENT OF MOTOR VEHICLES, Commonwealth of Virginia.

590 S.E.2d 596

42 Va. App. 190

Edward A. VASAIO v. DEPARTMENT OF MOTOR VEHICLES, Commonwealth of Virginia.

Record No. 0707-03-2.

Court of Appeals of Virginia, Richmond.

January 13, 2004.

Sherry Netherland (Michael Morchower; Morchower, Luxton & Whaley, on brief), for appellant.

Eric K.G. Fiske, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: Judges BENTON, ELDER and Senior Judge HODGES.

ELDER, Judge.

Edward Vasaio (appellant) appeals from an order of the Circuit Court for the City of Richmond affirming the determination of a hearing officer of the Department of Motor Vehicles (DMV) in a proceeding conducted pursuant to the Administrative Process Act. DMV issued an order of suspension indicating that appellant's privilege to drive and register motor vehicles in the Commonwealth would be suspended unless appellant either (1) furnished proof that he had insurance covering his motorcycle on the date he registered it and represented that he had insurance or (2) paid a $500 statutory fee and filed during three successive years a particular form certifying that he had insurance on that vehicle. A DMV hearing officer and the circuit court affirmed the suspension.

On appeal, appellant contends the evidence failed to support a finding that he violated Code §§ 46.2-706 and -707 because it did not establish (1) that the motorcycle he erroneously certified was insured was a motor vehicle within the meaning of those statutes and (2) that he lacked good cause to believe the motorcycle was insured when he registered it. We hold appellant's motorcycle was a motor vehicle as defined in Code § 46.2-705, thus triggering the provisions of Code § 46.2-706. We also hold substantial evidence supported the hearing officer's finding that he lacked good cause to believe the motorcycle was insured when he registered it. Thus, we affirm the circuit court's order affirming the hearing officer's decision to reinstate the order of suspension.

I. BACKGROUND

On May 31, 2001, appellant registered a 1973 Honda motorcycle with DMV. On the registration form, appellant checked the box indicating the motorcycle was insured.

DMV then "required [appellant] to provide the name of [his] liability insurance company and policy number to confirm with the insurance company that [his] vehicle was insured on the date of registration." Appellant advised DMV that the motorcycle was insured by Progressive Casualty Insurance Company under a particular policy number, but Progressive denied providing liability insurance for appellant's motorcycle on May 31, 2001, the date he registered the motorcycle.

On April 5, 2002, DMV notified appellant that, on the date of registration, the motorcycle was not insured by the company appellant had listed. It notified appellant that his "privilege to drive, to register motor vehicles, to obtain license plates and decals [would] be suspended effective May 5, 2002" unless he either (1) furnished proof that he had insurance covering his motorcycle on the date he registered it and represented that he had insurance or (2) paid a $500 statutory fee and filed during three successive years form SR-22 certifying that he had insurance on that vehicle. Appellant again furnished the name of Progressive Insurance, and he requested a hearing to show why the order of suspension should not be enforced.

On August 28, 2002, before a DMV hearing officer, appellant testified that, when he completed the DMV registration form for the motorcycle, he believed his vehicle insurance policy with Royal Insurance Company of America automatically provided coverage for his motorcycle for a period of up to thirty days from the date of registration. He testified he had purchased other automobiles in the past that had been insured automatically. He had not previously owned a motorcycle and did not confirm with his insurance company prior to registering the motorcycle with DMV that the motorcycle would be covered by his existing policy.

Appellant stored the motorcycle in a self-storage unit with the gas tank removed and wrapped in bubble wrap. Appellant furnished a notarized statement from a Bradley D. Wein, who attested that he helped appellant put the motorcycle in the storage unit in May 2001, that its gas tank had been removed and wrapped in bubble wrap, and that it remained in that condition until appellant sold it in October 2001.

On or about September 5, 2001, appellant spoke with his insurance agent and learned the motorcycle could not be covered by the Royal Insurance policy covering his other vehicles. On that date, appellant obtained insurance coverage on the motorcycle through Progressive Insurance. On October 2, 2001, he sold the motorcycle.

Although appellant said he intended to keep the motorcycle insured, he took no steps to contact his insurance company during what he believed was a thirty-day grace period because the motorcycle was in the storage unit and he believed the motorcycle was inoperable.

By decision dated September 16, 2002, the DMV hearing officer upheld the suspension. He made findings of fact in keeping with the above and reasoned as follows:

1. Your vehicle's being inoperable at the time that you registered it and its not being driven, are not bases to cancel the Order of Suspension issued to you on April 5, 2002.

2 . . . . Your assumption that your existing automobile liability insurance policy would insure the [motorcycle] and that insurance coverage would be in force on the [motorcycle] when you registered it, without first determining the existence of such insurance, does not constitute good cause for you to have believed that your [motorcycle] was an insured motor vehicle on May 31, 2001.

Appellant appealed to the circuit court. Following the parties' oral argument and submission of written memoranda, the court "[found] . . . no error in the agency record"; concluded "substantial evidence" supported the hearing officer's decision; and held "DMV's actions were governed by the requirements of § 46.2-706."

Appellant noted an appeal to this Court.

II. ANALYSIS

On appeal of an agency decision pursuant to the Administrative Process Act, "the sole determination as to factual issues is whether substantial evidence exists in the agency record to support the agency's decision. The reviewing court may reject the agency's findings of fact only if, considering the record as a whole, a reasonable mind necessarily would come to a different conclusion." Johnston-Willis, Ltd. v. Kenley, 6 Va.App. 231, 242, 369 S.E.2d 1, 7 (1988). In making this determination, "the reviewing court shall take due account of the presumption of official regularity, the experience and specialized competence of the agency, and the purposes of the basic law under which the agency has acted." Id.

On appeal of an agency's determination on issues of law,

where the question involves an interpretation which is within the specialized competence of the agency and the agency has been entrusted with wide discretion by the General Assembly, the agency's decision is entitled to special weight in the courts[, and] ... "`judicial interference is permissible only for relief against the arbitrary or capricious action that constitutes a clear abuse of delegated discretion.'"

Id. at 244, 369 S.E.2d at 8 (quoting Va. Alcoholic Beverage Control Comm'n v. York St. Inn, Inc., 220 Va. 310, 315, 257 S.E.2d 851, 855 (1979) (quoting Schmidt v. Bd. of Adjustment, 9 N.J. 405, 88 A.2d 607, 615-16 (1952))).

Pursuant to Code § 46.2-600, "except as otherwise provided in this chapter," which covers the "[t]itling and [r]egistration of [m]otor [v]ehicles," "every person who owns a motor vehicle . . . shall, before it is operated on any highway in the Commonwealth, register with the [DMV] and obtain from the [DMV] the registration card and certificate of title for the vehicle." "Motor vehicle," as used in that code section, "means every vehicle as [that term is defined in Code § 46.2-100] that is self-propelled or designed for self-propulsion except as otherwise provided in this title." Code § 46.2-100.

Code § 46.2-706 contains certain additional requirements for individuals seeking to register vehicles:

In addition to any other fees prescribed by law, every person registering an uninsured motor vehicle as defined in § 46.2-705, at the time of registering or reregistering the uninsured vehicle, shall pay a fee of $500 ....

* * * * * *

Every person applying for registration of a motor vehicle and declaring it to be an insured motor vehicle shall, under the penalties set forth in § 46.2-707,¹ execute and furnish to the Commissioner his certificate that the motor vehicle is an insured motor vehicle as defined in § 46.2-705.... The Commissioner may verify that the motor vehicle is properly insured.... If no record of liability insurance is found, the [DMV] may require the motor vehicle owner to verify insurance in a method prescribed by the Commissioner.

The refusal or neglect of any owner within thirty days to submit the liability insurance information when required by the Commissioner ... shall require the Commissioner to suspend any driver's license and all registration certificates and license plates issued to the owner of the motor vehicle until the person (i) has paid to the Commissioner a fee of $500 ... and (ii) furnishes proof of financial responsibility for the future in the manner prescribed [elsewhere in] this title....

(Footnote added).

A. DEFINITION OF "MOTOR VEHICLE" FOR PURPOSES OF REGISTRATION

Appellant contends the motorcycle was not a motor vehicle as defined in Code § 46.2-705 and, thus, that his erroneous certification that the motorcycle was insured did not support the suspension order entered pursuant to Code § 46.2-706. Because this issue turns on the meaning of the term "motor vehicle" as used in Code §§ 46.2-705 and -706, "the question involves an interpretation which is within the...