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EDWARDS v. GOVERNMENT EMPLOYEES INSURANCE COMPANY (59764)


EDWARDS

v.

GOVERNMENT EMPLOYEES
INSURANCE COMPANY


June 5, 1998

Record No. 972635

PETER EDWARDS

v.

GOVERNMENT EMPLOYEES INSURANCE COMPANY

OPINION BY JUSTICE BARBARA MILANO KEENAN

UPON QUESTIONS OF LAW CERTIFIED BY THE UNITED

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Present: All the Justices


Under the provisions of Rule 5:42, the United States Court of
Appeals for the Fourth Circuit certified to this Court two
questions of Virginia law asking whether a plaintiff in a
personal injury action was "using" or
"occupying" a motor vehicle at the time he was struck
by another car. The facts as stated in the certification order
are set forth below.

Terry Presmont asked Peter Edwards, an acquaintance, to change
a flat tire on Presmont’s car that was parked on a street in the
District of Columbia. Presmont gave Edwards a key to the car.
Edwards did not enter the driver’s area of the car or use the key
for any purpose other than to open the trunk.

Edwards took the jack and the spare tire out of the trunk. He
intended to install the spare tire in order to drive the car to a
service station to have the flat tire repaired. After raising the
car with the jack, Edwards began to take off the lug nuts to
remove the flat tire. Before he could remove all the lug nuts, he
was struck in the ankle by a car driven by an uninsured motorist.
Edwards suffered a fractured ankle for which he received medical
treatment.

At the time of the accident, Presmont was a Virginia resident.
Her car was insured by a motor vehicle liability insurance policy
(Policy) issued in Virginia by Government Employees Insurance
Company (GEICO). The Policy provides liability coverage to
insured persons occupying the insured vehicle. The term
"insured" is defined by the Policy in relevant part as
"any other person while occupying an insured motor
vehicle." "Occupying" is defined by the Policy as
"in or upon or entering into or alighting from" the
insured vehicle.

Edwards, a resident of the District of Columbia, filed a
complaint against GEICO in the United States District Court for
the District of Maryland (Southern Division), seeking damages for
his personal injuries under the uninsured motorist and medical
payment provisions of the Policy. GEICO filed a motion for
summary judgment, asserting that Edwards did not qualify as an
"insured" under Code Sec.38.2-2206[1] because
he was not "using" the insured vehicle at the time of
the accident. GEICO also argued that Edwards was not
"occupying" the insured vehicle within the meaning of
the Policy definition.

The district court granted GEICO’s motion for summary
judgment, concluding that Edwards was neither "using"
nor "occupying" the insured vehicle at the time of the
accident. Edwards noted an appeal to the United States Court of
Appeals for the Fourth Circuit, which presented the following
certified questions to this Court:

Was Edwards, who at the time of the accident was
repairing a vehicle parked on the street with the
intention of driving it to a service station,
"using" the vehicle within the meaning of
Virginia Code Sec.38.2-2206(B)?

Was Edwards, who at the time of the accident was
changing the tire of a vehicle parked on the street with
the intention of driving it to a service station for
further repairs, "occupying" the vehicle within
the meaning of the GEICO policy definition?

Edwards argues before this Court that he was "using"
the insured vehicle at the time he was struck and, therefore,
qualifies as an "insured" under Code
Sec.38.2-2206(B). In support of this argument, Edwards
chiefly relies on Great American Insurance Company v. Cassell,
239 Va. 421, 389 S.E.2d 476 (1990). There, we held that a fire
fighter, who was struck by a vehicle while standing approximately
20 to 25 feet from his fire truck, was "using" the
truck because he was engaged in a transaction essential to the
truck’s use at the time of the accident. Id. at 424, 389
S.E.2d at 477. Edwards asserts that, like the fire fighter in Cassell,
he was "using" the insured vehicle when he was struck
because the act of changing a flat tire was essential to use of
the car.

Edwards also contends that he was "occupying" the
insured vehicle within the meaning of the Policy definition.
Edwards argues that his close proximity to the insured vehicle
and his intention to occupy the car once his task was completed
provide sufficient evidence to support a conclusion that he was
"occupying" the insured vehicle.

In response, GEICO first asserts that Edwards was not
"using" the insured vehicle when he was struck because
the car was not involved in any "mission" at the time
of the accident. GEICO also argues that Edwards was not
"occupying" the insured vehicle within the meaning of
the Policy definition. Citing Pennsylvania National Mutual
Casualty Insurance Company v. Bristow
, 207 Va. 381, 385, 150
S.E.2d 125, 128 (1966), GEICO contends that Edwards was not
"upon" the insured vehicle because, while he was in
close proximity to the car, he did not have sufficient intent to
use it. GEICO also relies on Stern v. The Cincinnati Insurance
Company
, 252 Va. 307, 311, 477 S.E.2d 517, 519 (1996), in
which we held that a child crossing a street to board a school
bus was not "occupying" the bus.

We first consider the question whether Edwards was
"using" the insured vehicle at the time of the accident
within the meaning of Code Sec.38.2-2206(B). The statute
defines "insured," in material part, as "any
person who uses the motor vehicle to which the policy applies,
with the expressed or implied consent of the named insured."
Id. The coverage mandated by the statute is limited to
injuries sustained by the permissive user while actually using
the insured vehicle. Randall v. Liberty Mut. Ins. Co., 255
Va. 62, 65, 496 S.E.2d 54, 55 (1998); Insurance Co. of North
America v. Perry
, 204 Va. 833, 838, 134 S.E.2d 418, 421
(1964).

In determining whether Edwards was "using" the
insured vehicle at the time he was injured within the meaning of
Code Sec.38.2-2206(B), the relevant inquiry is whether
"there was a causal relationship between the accident and
the use of the insured vehicle as a vehicle." Randall,
255 Va. at 66, 496 S.E.2d at 56; accord United States
Fire Ins. Co. v. Parker
, 250 Va. 374, 377, 463 S.E.2d 464,
466 (1995); Travelers Ins. Co. v. LaClair, 250 Va. 368,
372, 463 S.E.2d 461, 463 (1995). The coverage mandated by the
statute for "use" of a vehicle is not limited to the
transportation function of the vehicle. Randall, 255 Va.
at 66, 496 S.E.2d at 56. "If the injured person is using the
insured vehicle as a vehicle and as an integral part of his
mission when he is injured, he is entitled to UM/UIM coverage
under Sec.38.2-2206." Id.; accord Parker,
250 Va. at 377-78, 463 S.E.2d at 466; Cassell, 239 Va. at
424, 389 S.E.2d at 477.

Our decisions in Randall and Cassell are
determinative of this inquiry. In Randall, a highway
worker was struck and killed by a car while placing lane closure
signs along the side of a highway. He had driven the insured
vehicle to the site, left the engine running, and kept on the
flashing yellow bubble light on top of the truck’s cab while
completing his task. The worker was six to ten feet behind the
truck on the shoulder of the road when he was struck.

We observed in Randall that the specialized warning
equipment and its relationship to the worker’s task made use of
the truck more than merely a means of transportation. 255 Va. at
67, 496 S.E.2d at 57. We concluded that the worker was
"using" the insured truck when he was struck because he
was utilizing the truck’s specialized equipment to perform his
mission. Id. at 67, 496 S.E.2d at 56-57.

In Cassell, a fire fighter was standing 20 to 25 feet
away from the fire truck when he was struck and killed by a car.
The insured fire truck had transported to the scene both the fire
fighter and the equipment used to fight the fire. The truck also
was used at the scene as a physical barrier to restrict traffic
flow. At the time the fire fighter was struck, he was using a
writing pad and a clipboard that he had taken from the truck to
complete a required fire incident report. We concluded that the
fire fighter was "using" the fire truck at the time of
the accident because the truck was an integral part of the fire
fighter’s mission, which had not been completed when the accident
occurred. 239 Va. at 424, 389 S.E.2d at 477.

Like the highway worker in Randall and the fire fighter
in Cassell, Edwards was using the insured vehicle’s
equipment at the time of the accident to perform his mission.
That mission was to drive the car to a service station to have
the flat tire repaired. An integral part of the mission required
use of the jack to remove the flat tire and to place the spare
tire on the vehicle. Thus, Edwards was in the process of
performing a transaction essential to the use of the insured
vehicle when he was struck.

In using the vehicle’s equipment to accomplish his mission,
with the immediate intent to drive the vehicle after replacing
the tire, Edwards was using the insured vehicle as a vehicle and
as an integral part of his mission at the time of the accident.
Thus, we conclude that there was a causal relationship between
the accident and Edwards’ use of the vehicle as a vehicle. See
Randall, 255 Va. at 66, 496 S.E.2d at 56; Cassell,
239 Va. at 424, 389 S.E.2d at 477.

We disagree with GEICO’s contention that Stern, as well
as Perry, 204 Va. at 833, 134 S.E.2d at 418, compels us to
reach a different conclusion. In Stern, we held that a
school bus was used by its driver to create
a safety zone for a child crossing the street to board the bus,
and that the driver’s employment of the safety devices did not
constitute a use of the bus by the child. 252 Va. at 312, 477
S.E.2d at 520. In Perry, we concluded that a police
officer, who was serving an arrest warrant when struck by an
uninsured motorist, was not using his police cruiser at the time
of the accident. We based this conclusion on the fact that the
officer had removed the key from his vehicle, gotten out, and
walked 164 feet away from the cruiser when he was struck. 204 Va.
at 838, 134 S.E.2d at 421. Unlike Edwards in the present case,
the injured persons in Stern and Perry were not
engaged in a transaction essential to the vehicle’s use at the
time of the accident. See Cassell, 239 Va. at 424,
389 S.E.2d at 477. Therefore, we answer the first certified
question in the affirmative.

We next consider the question whether Edwards was
"occupying" the insured vehicle within the meaning of
the Policy definition. The Policy defines "occupying"
as meaning "in or upon or entering into or alighting
from" the motor vehicle. We considered this same policy
definition in Bristow, and we conclude that our decision
in that case primarily governs the present issue whether Edwards
was "occupying" the insured vehicle. In Bristow,
a passenger in a truck had stopped to render assistance to the
owner of a stalled vehicle. In attempting to restart the stalled
vehicle, Bristow, the "Good Samaritan," leaned over the
motor and reached with his hands to examine some of the wires.
During the time that his legs were touching the car’s bumper, a
vehicle struck the stalled automobile from the rear. As a result
of the impact, Bristow was "thrown over in the ditch"
and injured. Bristow neither entered nor intended to enter the
disabled vehicle. 207 Va. at 382, 150 S.E.2d at 126.

In considering whether Bristow was "occupying" the
stalled vehicle when he was struck, within the meaning of the
policy definition, we concluded that the determinative question
was whether Bristow was "upon" the stalled vehicle when
he was injured. We observed that the word "upon" must
be considered in relation to the word in the policy that it
defines, namely, the word "occupying." We stated that
"a person may be said to be ‘upon’ a vehicle when he is in a
status where he is not actually ‘in,’ or is not in the act of
‘entering into or alighting from,’ the vehicle, but whose
connection therewith immediately relates to his ‘occupying’
it." Id. at 385, 150 S.E.2d at 128. Based on this
definition, we held that Bristow was not "upon" the
stalled vehicle and, thus, was not "occupying" it
because his touching of the vehicle was merely incidental to his
act of assisting the driver of the disabled car. Id.

In Stern, we also considered the insurance policy term
"occupying." In concluding that the injured child was
not "occupying" the bus when she was struck
"several" feet from the bus, we observed that the word
"occupying" denotes "a physical presence in or on
a place or object." 252 Va. at 311, 477 S.E.2d at 519.

Applying these principles, we conclude that Edwards’ act of
attempting to replace the tire on the insured vehicle was not an
act immediately related to occupancy of the vehicle. Although
Edwards ultimately intended to occupy the vehicle, his actions at
the time of the accident immediately related to his attempt to
change the flat tire. Further, Edwards’ actions did not
constitute a physical presence in or on the insured vehicle.
Thus, Edwards was not "occupying" the insured vehicle
at the time of the accident within the meaning of the GEICO
policy definition, and we answer the second certified question in
the negative.

First certified question answered in the
affirmative
.

Second certified question answered in the
negative
.

 

FOOTNOTES:

[1] At the time of Edwards’ injury,
Code Sec.38.2-2206(B) provided:

"Insured" as used in subsections A,
D, G, and H of this section means the named insured and,
while resident of the same household, the spouse of the
named insured, and relatives of either, while in a motor
vehicle or otherwise, and any person who uses the motor
vehicle to which the policy applies, with the expressed
or implied consent of the named insured, and a guest in
the motor vehicle to which the policy applies or the
personal representative of any of the above.

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