ERIE INSURANCE EXCHANGE
November 6, 1998
Record No. 980025
JOHNNY CALVIN NEWMAN, ET AL.
ERIE INSURANCE EXCHANGE
Martin F. Clark, Jr., Judge
Present: All the Justices
OPINION BY JUSTICE BARBARA MILANO KEENAN
FROM THE CIRCUIT COURT OF HENRY COUNTY
This appeal of a declaratory judgment presents
two issues of motor vehicle insurance coverage involving a child
who was struck by a motor vehicle while walking across a highway
to board a school bus.
The facts in the case are undisputed. One
morning in February 1993, seven-year-old Johnny Calvin Newman
waited for his assigned school bus alongside the eastbound lane
of Route 57 in Henry County. Route 57 is a two-lane highway at
this location. The bus came to a stop in the westbound lane,
across the road from Johnny. The bus driver activated the bus’
warning lights and its "stop arm." To board the bus,
Johnny had to walk across the eastbound lane of Route 57 and then
cross in front of the bus. As Johnny was walking across the
eastbound lane, he was struck by a motor vehicle operated by
Ephriam Drake Sayers.
The school bus, which was owned by the Henry
County School Board, was insured under the Board’s
"commercial automobile liability" insurance policy
issued by Erie Insurance Exchange (Erie). The policy listed the
Henry County School Board as the named insured and included
within its uninsured/underinsured motorist (UM/UIM) coverage
"anyone while occupying" a vehicle insured under the
policy. The policy defined "occupying" as "in or
upon, getting into or out of, or getting off." The policy
also was subject to Code Sect. 38.2-2206, which mandates
UM/UIM coverage for, among others, "any person who uses the
motor vehicle to which the policy applies, with the expressed or
implied consent of the named insured."
Johnny, by his parents and next friends Randall
and Brenda Newman, filed a motion for judgment seeking damages
for personal injuries against, among others, the personal
representative of Sayers’ estate, the school bus driver, and the
School Board. Pursuant to Code Sect. 38.2-2206(F), a copy of
the motion for judgment was served on Erie as an insurer
providing potential UM/UIM coverage.
Erie filed a bill of complaint for declaratory
judgment, asking the trial court to declare that Johnny was not
an insured under the UM/UIM provisions of the School Board’s
policy. For purposes of determining the availability of UM/UIM
coverage, Erie and the Newmans stipulated the above-stated facts
concerning how the accident occurred. They further agreed that at
the time of the accident, Johnny was not riding the bus as a
passenger, was not a guest in the bus, and was not a named
insured or family member residing in the same household as a
Erie moved for summary judgment, arguing that
no material facts remained in dispute and that it was entitled to
judgment as a matter of law based on this Court’s decision in Stern
v. Cincinnati Insurance Company, 252 Va. 307, 477 S.E.2d 517
(1996). The trial court granted the motion for summary judgment
and entered an order concluding that Johnny was not an insured
under the UM/UIM provisions of the Erie policy. The court stated
in its order that Johnny was not "using, occupying, getting
on or getting off of the school bus at the time of the accident,
as per Stern v. Cincinnati Insurance Company."
On appeal, the Newmans argue that Johnny was
"occupying" the school bus at the time of the accident,
as that term is defined in the Erie policy. They assert that
since a school bus is a specialized type of vehicle, the
differences involved in boarding that type of vehicle must be
recognized when interpreting this policy term. They contend that
the term "getting into" an insured vehicle, considered
in the context of boarding a school bus, encompasses the very
activity in which Johnny was engaged.
The Newmans also argue that Johnny was
"using" the school bus at the time of the accident,
within the meaning of Code Sect. 38.2-2206. They
contend that since Johnny was struck while walking across the
road after the bus driver had activated the bus’ specialized
safety devices, he was using those devices and was injured while
engaged in an activity essential to the use of the bus as a
In response, Erie argues that our decision in Stern
controls both issues raised in this case. Erie contends that the
facts in Stern are indistinguishable from the facts
presented here, and that the policy language at issue in that
case was very similar to the policy language before us. Thus,
Erie asserts that the doctrine of stare decisis requires
a conclusion that Johnny was not occupying or using the school
bus insured by Erie.
In considering these issues, we determine first
whether Johnny was "occupying" the school bus under the
terms of the Erie policy. As stated above, the policy defines
"occupying" as "in or upon, getting into or out
of, or getting off." The portion of the definition most
applicable to the facts of this case is the term "getting
into." The Newmans agree with Erie that the facts in Stern
are indistinguishable from the facts before us. There, a child
was struck and injured by an oncoming motorist while walking
across a road to board a school bus. Id. at 309, 477
S.E.2d at 518. To board the bus, the child was required to walk
across one complete lane of traffic and then proceed in front of
the bus that was stopped in the other lane. She was struck in the
lane opposite the lane in which the bus was stopped, two or three
feet from the center line in the road. Id.
Under policy language that defined
"occupying" as "in, upon, getting in, on, out or
off," we held that the child was not "occupying"
the school bus. Id. at 310-11, 477 S.E.2d at 519. We
explained that the policy definition must be interpreted in
relation to the term defined and stated that the word
"occupying" "denotes a physical presence in or on
a place or object." Id. at 311, 477 S.E.2d at 519. We
held that, considered in this context, the terms "getting
in" and "getting on" required a close proximity to
the bus that was not demonstrated by the child’s location since
she was across the center line of the road from the bus when she
was struck. Id.
Under the facts before us, there is no material
difference between the policy language at issue in Stern
and the language of Erie’s policy. When Johnny was struck, his
location in the lane opposite the lane in which the bus was
stopped did not place him in such close proximity to the bus as
would constitute a physical presence in or on it. See id.
Thus, under the plain and ordinary meaning of the terms in the
Erie policy, Johnny was not "occupying" the school bus
at the time he was struck.
In arguing that he was "using" the
bus within the meaning of Code Sect. 38.2-2206, Johnny
acknowledges that acceptance of his position would require us to
overrule the portion of Stern in which we concluded that
the child was not using the bus when struck. There, we held that
a bus driver used a bus and its equipment to create a safety zone
for the child, but that "the safety measures did not
constitute a use of the bus by [the child]." Id. at
312, 477 S.E.2d at 520. We stated that the child was not using
the bus, within the meaning of Code Sect. 38.2-2206, at
the time she was struck "because she was not yet a passenger
of the school bus." Id. at 313, 477 S.E.2d at 520. In
reaching this conclusion, we stated that our holding was governed
by our prior decisions in Insurance Company v. Perry, 204
Va. 833, 836, 134 S.E.2d 418, 420 (1964), and United States
Fire Ins. Co. v. Parker, 250 Va. 374, 463 S.E.2d 464 (1995). Stern,
252 Va. at 312, 477 S.E.2d at 520.
Code Sect. 38.2-2206(B) 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." The
coverage mandated by the statute is limited to injuries that the
permissive user sustained while actually using the insured
vehicle. Edwards v. GEICO, 256 Va. 128, 132, 500 S.E.2d
819, 821 (1998); Randall v. Liberty Mut. Ins. Co., 255 Va.
62, 65, 496 S.E.2d 54, 55 (1998); Perry, 204 Va. at 838,
134 S.E.2d at 421. In determining whether Johnny was actually
"using" the school bus at the time he was injured
within the meaning of Code Sect. 38.2-2206, the relevant
inquiry is whether "there was a causal relationship between
the accident and the use of the insured vehicle as a
vehicle." Edwards, 256 Va. at 132, 500 S.E.2d at 821
(quoting Randall, 255 Va. at 66, 496 S.E.2d at 56); accord
Parker, 250 Va. at 377, 463 S.E.2d at 466; Travelers
Ins. Co. v. LaClair, 250 Va. 368, 372, 463 S.E.2d 461, 463
We have illustrated the nature of this causal
relationship in two groups of cases. The first group includes
such cases as Stern, Parker, and Perry, in
which we concluded that the injured persons were not
"using" the vehicles in question within the meaning of
Code Sect. 38.2-2206. In Parker, a landscape gardener
drove a pickup truck containing some tools and ornamental cabbage
plants to the entrance of a residential development, where she
parked the truck in a manner to provide a safety barrier from
passing traffic. She left the truck door open in order to hear a
two-way radio located inside the truck and was struck while
planting the cabbages. We concluded that the gardener was not
"using" the truck as a vehicle at the time she was
injured by an uninsured motorist, because she was not
"engaged in a transaction essential to the use of the pickup
truck when she was injured." 250 Va. at 376-78, 463 S.E.2d
In Perry, we held that a police officer
was not "using" his vehicle when he was struck and
killed while attempting to serve a warrant. At the time he was
struck, the officer had turned off the engine, left the vehicle,
and was walking along a roadway 164 feet from his police cruiser.
204 Va. at 834, 134 S.E.2d at 419.
The second group of cases discussing the causal
relationship between an accident and the use of an insured
vehicle as a vehicle includes such decisions as Randall
and Great American Insurance Co. v. Cassell, 239 Va. 421,
389 S.E.2d 476 (1990). In those cases, we concluded that the
injured party was "using" the insured vehicle at the
time of injury, within the meaning of Code Sect. 38.2-2206.
In Randall, a highway worker was struck and killed by a
vehicle 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 assigned task. The
worker was six to ten feet behind the truck on the shoulder of
the road at the time he was struck. 255 Va. at 64, 496 S.E.2d at
55. We held that the worker was "using" the insured
truck as a vehicle 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 a fire truck when he was struck and
killed by an uninsured motor vehicle. The insured fire truck had
transported to the scene of the fire 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 the flow of traffic.
At the time the fire fighter was struck, he was using a writing
pad and a clipboard that he had removed 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 his
mission, which had not been completed when he was struck and
killed. 239 Va. at 424, 389 S.E.2d at 477.
In Randall, which we decided after Stern,
we emphasized that actual use of the vehicle for purposes of
UM/UIM coverage mandated by Sect. 38.2-2206 is not
restricted to the transportation function of a vehicle. 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 Sect. 38.2-2206. In this
context, the use of a vehicle "as a vehicle" requires
that at the time of the injury, the vehicle is being used in a
manner for which it was specifically designed or equipped.
255 Va. at 66, 496 S.E.2d at 56 (citations
Our holding in Randall raises a question
in this case concerning our earlier holding in Stern. That
question is whether there is coverage under Code
Sect. 38.2-2206 when an individual, who has not occupied an
insured vehicle, utilizes the vehicle’s specialized safety
equipment as an integral part of performing his mission, with the
immediate intent to occupy the vehicle. Applying the principles
expressed in Randall, as well as those set forth in Edwards
v. GEICO, 256 Va. 128, 500 S.E.2d 819, we answer this
question in the affirmative.
A school bus driver is required by regulation
to activate a school bus’ warning devices "to warn
approaching traffic to stop and allow pupils to cross the highway
safely." 8 VAC 20-70-80. This regulation, enacted pursuant
to the Board of Education’s authority under Code
Sect. 22.1-177, illustrates the fact that the school bus’
warning devices are intended for the child’s use. Therefore,
there is a dual use of the bus’ specialized safety equipment. The
bus driver uses the bus’ specialized safety equipment to warn
approaching traffic to stop, and the child uses the safety
equipment as an integral part of his mission of walking across
the street to board the bus.
Our decision in Stern, however,
recognized only the bus driver’s use of the specialized safety
equipment. The decision effectively equated "use" of
the bus with occupancy by stating that the child "clearly
was not utilizing the bus as a vehicle because she was not yet a
passenger of the school bus, and, therefore was not using the
bus, within the meaning of Code Sect. 38.2-2206, when she
was injured." 252 Va. at 313, 477 S.E.2d at 520.
In no other case have we held that
"use" of an insured vehicle, under Code
Sect. 38.2-2206, requires that an injured party be an
occupant of the insured vehicle at some time prior to sustaining
an injury. Moreover, we held to the contrary in Edwards,
our most recent case addressing "use" of an insured
vehicle under Code Sect. 38.2-2206. There, a man was injured
in the process of removing a flat tire from an automobile owned
by an acquaintance. He did not drive or ride in the insured
vehicle prior to being struck by the uninsured vehicle. Instead,
he was using the insured vehicle’s tire jack and spare tire to
change the tire with the intention of driving the car to have the
flat tire repaired. We concluded that he was "using"
the insured vehicle, within the meaning of Code
Sect. 38.2-2206, because he utilized the insured vehicle’s
equipment as an integral part of his mission with the immediate
intent to drive the vehicle after replacing the tire. 256 Va. at
133, 500 S.E.2d at 821.
In light of Randall and Edwards,
we are compelled to overrule the holding in Stern that a
child injured under the facts presented was not "using"
the school bus, within the meaning of Code Sect. 38.2-2206.
Thus, under the facts now before us, we conclude that Johnny was
using the school bus as a vehicle at the time he was injured,
based on his use of the bus’ specialized safety equipment and his
immediate intent to become a passenger in the bus. Those facts
establish the required causal relationship between the accident
and Johnny’s use of the bus as a vehicle.
In reaching this decision, we have given
deliberate consideration to the critical role that the doctrine
of stare decisis serves in insuring the stability of the
law. See Selected Risks Insurance Co. v. Dean, 233 Va.
260, 265, 355 S.E.2d 579, 581 (1987). However, we have a duty of
equal dignity to reexamine critically our precedent and to
acknowledge when our later decisions have presented an
irreconcilable conflict with such precedent. See Nunnally
v. Artis, 254 Va. 247, 253, 492 S.E.2d 126, 129 (1997).
Under Stern, only children who have
exited a school bus under the protection of the bus’ safety
equipment could be entitled to UM/UIM coverage when injured in a
lane opposite the lane in which the bus was stopped. Yet,
children injured in the same location while walking across
the street to board the same bus under the protection of
the same specialized safety equipment would be denied such
coverage. Our action today also is taken to eliminate this
paradox resulting from the application of Stern.
For these reasons, we will affirm in part, and
reverse in part, the trial court’s judgment. We will enter final
judgment declaring that Johnny was "using" the school
bus at the time of the accident, within the meaning of
Code Sect. 38.2-2206, and was entitled to coverage
under the UM/UIM portion of the Erie policy.
Affirmed in part, reversed in part, and
JUSTICE COMPTON, with whom CHIEF JUSTICE
CARRICO joins, dissenting.
"In Virginia, the doctrine of stare
decisis is more than a mere clich?. That doctrine plays a
significant role in the orderly administration of justice by
assuring consistent, predictable, and balanced application of
legal principles. And when a court of last resort has established
a precedent, after full deliberation upon the issue by the court,
the precedent will not be treated lightly or ignored, in the
absence of flagrant error or mistake." Selected Risks
Ins. Co. v. Dean, 233 Va. 260, 265, 355 S.E.2d 579,
Established precedents ought not to vary with
every change in the appellate court’s personnel. Kelly v. Trehy,
133 Va. 160, 169, 112 S.E. 757, 760 (1922). Frequent overruling
of an appellate court’s decisions tends to bring adjudications of
the tribunal "into the same class as a restricted railroad
ticket, good for this day and train only." Smith v. Allwright,
321 U.S. 649, 669 (1944) (Roberts, J., dissenting). Responsible
decisionmaking leaves no room for "jurisprudence of
doubt." Planned Parenthood v. Casey, 505 U.S.
833, 844 (1992).
In common law cases, the interest in stability
demands uniformity and certainty, particularly when rules of
property and contract have been established. W. M. Lile, Some
Views On The Rule of Stare Decisis, 4 Va. L. Rev. 95, 101
(1916). Dean Lile expressed the doctrine of stare decisis in
general terms: "A decision by a court of last resort, in a
litigated controversy, on a question of law necessarily involved
in the judgment, becomes a precedent within that jurisdiction,
for subsequent cases involving substantially similar facts."
Id. at 97.
But the interest in stability is not the only
interest stare decisis serves in common law cases. There are
other concerns relating to the manner in which appellate judges
decide cases. For example, "respect for precedent encourages
the Court to be fair by reminding the Justices to treat like
cases alike." Note, Constitutional Stare Decisis, 103
Harv. L. Rev. 1344, 1349 (1990). Moreover, "respect for
precedent helps promote public confidence in the law." Id.
If an appellate court does not respect its own precedent, then
the public, the bench, and the bar are less likely to have
confidence in the decisions that are made. Furthermore, employing
the doctrine of stare decisis assures the public that an
appellate court’s judgments are not arbitrary and that the court
is controlled by precedent that is binding without regard to the
personal views of its members. Id.
Against the background of these settled
principles, a bare majority of this Court, in a case construing a
contract, today overrules a holding that is merely two years old.
The accident facts here and in Stern v. Cincinnati Ins.
Co., 252 Va. 307, 477 S.E.2d 517 (1996), are substantially
identical; the contract provisions are the same; and, the issues
are identical. Yet a Court majority (including three members who
were in the minority in Stern, and who ought to feel bound
by it), strains to draw distinctions that make no difference and
says that the holding on "use" in Stern should
be jettisoned. I cannot agree.
The decision on that question of law was
necessarily involved in the judgment in Stern and should
be binding, as here, in a subsequent case with substantially
similar facts. No flagrant error or mistake was made in Stern,
which was decided after full deliberation upon the issue by the
Court. Parenthetically, I note the "irreconcilable
conflict" with the Stern precedent, mentioned by the
majority, is created by the analysis it advances in this case.
Accordingly, I would affirm the declaratory
judgment of the trial court in all respects.
JUSTICE KOONTZ, dissenting.
I respectfully dissent. In my view, the sole
issue presented in this appeal is whether case law subsequent to Stern
v. Cincinnati Insurance Company, 252 Va. 307, 477 S.E.2d 517
(1996), warrants reconsideration of the issues decided by that
case. The majority, relying upon Randall v. Liberty Mut. Ins.
Co., 255 Va. 62, 496 S.E.2d 54 (1998), and Edwards v.
GEICO, 256 Va. 128, 500 S.E.2d 819 (1998), reasons that this
Court has adopted a more expansive view of what constitutes
"using" an insured vehicle within the meaning of Code
Sect. 38.2-2206(B) and, thus, our holding in Stern
has been called into question. I disagree.
Randall dealt with an individual who was
struck and killed by a vehicle while placing lane closure signs
along the side of the highway. At that time, he was using the
specialized safety equipment of the insured vehicle, which he had
driven to the site, to create a safety zone in which to complete
his assigned task. We held that these circumstances constituted a
use of the insured vehicle with the meaning of Code
Sect. 38.2-2206(B). Randall, 255 Va. at 67-68, 496
S.E.2d at 57.
In Edwards, we held that an individual
who was neither the driver nor a passenger of the insured vehicle
was nonetheless "using" the vehicle within the meaning
of Code Sect. 38.2-2206(B) since he was using specialized
equipment associated with the vehicle to change a flat tire on
the vehicle. Moreover, when he was struck and injured by another
vehicle, Edwards was in physical contact with the insured
vehicle. We held that his utilization of the insured vehicle’s
equipment coupled with his intent to drive the vehicle
immediately after replacing the tire constituted
"using" the vehicle within the meaning of Code
Sect. 38.2-2206(B). Edwards, 256 Va. at 133, 500
S.E.2d at 821.
The underlying rationale of Randall and Edwards
was that in each case the action of the injured person
constituted a use of the insured vehicle within the meaning of
Code Sect. 38.2-2206(B) because there was a causal
relationship between the accident and the use of the vehicle as a
vehicle even though the actual use was unrelated to the
transportation function of the vehicle. This was a logical
extension of our decision in Great American Insurance Co. v.
Cassell, 239 Va. 421, 424, 389 S.E.2d 476, 477 (1990).
However, nothing in Randall suggests that this rationale
would apply to every individual injured while located within a
safety zone created by specialized equipment of an insured
vehicle. Nor does the application of this rationale in Edwards
to a non-passenger, who was actually using specialized equipment
while in physical contact with the vehicle, necessarily extend
coverage under the statute to every individual who incurs an
incidental benefit from specialized equipment of a vehicle.
Indeed, both of these questions were previously resolved in Stern.
In Stern, the student, when injured, was
within a safety zone created by the activation of the specialized
safety equipment of the insured bus by the bus driver for the
student’s benefit prior to completing her intended mission of
becoming a passenger on the bus. Under those specific facts in Stern,
we determined that the student was not "using" the
school bus within the meaning of Code Sect. 38.2-2206(B).
Unlike the circumstances in Randall, the student in Stern
was not within the safety zone as a user of the vehicle. Unlike
the circumstances in Edwards, the student in Stern
was not physically in contact with the vehicle, nor was she
utilizing the bus’s specialized safety equipment in a manner that
constituted a use of the vehicle as a vehicle. Thus, at the time
of her injury, Stern was not yet "using," within the
meaning of Code Sect. 38.2-2206, the bus she intended to
board. The facts of the present case are indistinguishable from
those in Stern, and accordingly, I would hold that our
decision in Stern remains viable and controls the outcome
of the present case.
For these reasons, I would affirm the
declaratory judgment of the trial court in all respects.
 Unlike the present case, the facts presented in Edwards
did not place our ruling in Stern before us for
reconsideration. In Edwards, we were presented with two
certified questions from the United States Court of Appeals that
did not involve the use of an insured vehicle’s specialized
safety equipment by the injured motorist. Thus, in restating the
ruling in Stern that the child was not using the bus, we
were not addressing the merits of that decision, but were stating
only why that holding was inapplicable to the facts in Edwards.