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RANDALL, ET AL. v. LIBERTY MUTUAL INSURANCE COMPANY


RANDALL, ET AL. v.
LIBERTY MUTUAL INSURANCE COMPANY


January 9, 1998
Record No. 970789

WILLIAM N. RANDALL, ET AL.

v.

LIBERTY MUTUAL INSURANCE COMPANY

OPINION BY JUSTICE ELIZABETH B. LACY
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK

William F. Rutherford, Judge
Present: All the Justices


In this appeal, we decide whether, for purposes of qualifying
as an insured under Code ? 38.2-2206,
a highway worker was "using" his employer’s vehicle
while placing lane closure signs along the side of a highway.

Early in the morning of July 28, 1994, James L. Downey and
Lawrence Eichler, employees of Archer-Western Contractors, Ltd.,
were placing lane closure signs along the shoulders of a one-mile
section of Interstate 64 in Norfolk when Downey was struck and
killed by a car driven by Thomas Glen Pasterczyk. Downey had
driven himself and the closure signs to the highway section in a
pickup truck owned by his employer and insured by Liberty Mutual
Insurance Company (Liberty).

In placing the closure signs, Downey and Eichler employed the
following procedure. At several points in the one-mile stretch
leading to a merge zone, Downey pulled over to the side of the
shoulder and exited his vehicle, leaving the engine running and
the flashing yellow bubble light on top of the cab turned on.
Downey then removed a stand from the pickup truck and placed it
on the side of the road, five to six feet behind the back of the
truck. Next, Downey removed two flags and a sign from the truck
and placed those on the stand. Eichler, meanwhile, followed the
same procedure on the opposite side of the road. Downey and
Eichler then would re-enter their trucks and would drive
simultaneously to the next designated point.

Downey was struck and killed while placing the fourth and
final sign in the one-mile stretch. Eichler testified that Downey
had already placed the final stand and retrieved the sign from
the back of the truck. Eichler last saw Downey walking away from
the truck, toward the stand, carrying the sign. Eichler did not
see the actual collision, nor could he say whether Downey had
completed placing the final sign on its stand before being
struck. Pasterczyk’s vehicle drifted off the road, first striking
Downey and then striking the truck. According to Eichler, Downey
was out of his truck for "two minutes, three minutes, maybe
longer" at the fourth spot before the accident occurred, and
he was six to ten feet behind the truck on the shoulder of the
road at the moment he was hit.

William N. Randall and Sharon S. Downey, Administrators of
Downey’s estate (collectively "Randall"), filed a
motion for judgment against Pasterczyk. Prior to trial, an order
was entered by agreement providing, in relevant part, for the
entry of a judgment against Pasterczyk in the amount of $105,000,
$60,000 of which was to be paid jointly by Pasterczyk’s liability
insurance carrier and Downey’s uninsured/underinsured motorist
(UM/UIM) insurance carrier. The order also allowed an amendment
to the motion for judgment to seek a determination of whether
Downey was an insured under ? 38.2-2206
and entitled to underinsured motorist coverage under the Liberty
policy.

Following an ore tenus hearing and subsequent argument of
counsel, the trial court determined that Randall was not entitled
to recover under the UM/UIM endorsement of the Liberty policy
because, at the time of his death, Downey was not a named insured
under the policy and was neither "using" nor
"occupying" the truck. We granted Randall an appeal
limited to an assignment of error addressing the issue whether
Downey was "operating or using" the truck for purposes
of UM/UIM insurance coverage.

I.

Section 38.2-2206 mandates that automobile liability insurance
policies provide UM/UIM coverage to persons insured under the
policies. The statute defines "insured," in relevant
part, as "any person who uses the motor vehicle to which the
policy applies" with the consent of the named insured. This
mandated coverage is not extended to the entire period of
permissive use, but is limited to injuries sustained while the
permissive user is actually using the insured vehicle. Insurance
Company of North America v. Perry
, 204 Va. 833, 837-38, 134
S.E.2d 418, 421 (1964).

Two of our prior cases, Great American Insurance Co. v.
Cassell
, 239 Va. 421, 389 S.E.2d 476 (1990), and United
States Fire Insurance Co. v. Parker
, 250 Va. 374, 463 S.E.2d
464 (1995), provide the analytical framework for determining
whether a permissive user of an insured vehicle who is injured
while away from the vehicle qualifies as an insured and,
therefore, is entitled to UM/UIM coverage under ? 38.2-2206. In Cassell,
a fire fighter was struck by a car while standing 20 to 25 feet
from his fire truck. The truck was parked in a manner which
restricted traffic flow and provided a protective barrier for the
fire fighters, and its red lights were flashing at the time of
the accident. The truck was used to transport to the scene water,
hoses, tools, and other equipment used in combating the fire. Id.
at 422-23, 389 S.E.2d at 476-77. In Cassell, we held that
the fire fighter was using his truck at the time of the accident,
entitling him to uninsured motorist coverage from the policy
insuring the truck. We concluded that "[u]se of the fire
truck . . . was an integral part of the fire fighters’
mission," and that the fire fighter was "engaged in a
transaction essential to the use of the fire truck" when he
was struck. Id. at 424, 389 S.E.2d at 477.

In Parker, a landscape gardener drove herself, two
other workers, some ornamental cabbage plants, and tools to the
entrance of a residential development in a pickup truck. The
gardeners parked the truck so as to provide a safety barrier from
passing traffic, and began digging holes and planting the
cabbages. A door of the truck was left open to allow the
gardeners to hear a two-way radio inside the truck. While Parker
was digging a hole 12 to 15 feet from the truck, an underinsured
motorist hit the truck and then hit Parker, injuring her. We
described the relevant inquiry as whether there was a causal
relationship between the accident and the use of the insured
vehicle as a vehicle, and concluded that Parker was not using the
truck at the time of the accident, since she was not
"engaged in a transaction essential to the use of the pickup
truck . . . ." 250 Va. at 376-78, 463 S.E.2d
at 465-66.

As established by these cases, actual use of the vehicle for
purposes of UM/UIM coverage mandated by ? 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 ? 38.2-2206. Parker,
250 Va. at 377-78, 463 S.E.2d at 466; Cassell, 239 Va. at
424, 389 S.E.2d at 477. 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.[1] For example, the fire truck in Cassell
had special equipment for use in completing the user’s fire
fighting mission which was in use at the time of the accident.

II.

Liberty argues that applying these principles to this case
requires the conclusion that Downey was not using his employer’s
truck when he was struck and killed. Liberty notes that Downey,
like the gardener in Parker, was using an ordinary pickup
truck to transport items to be deposited at the work site. The
truck in Parker was parked in a manner which created a
safety zone, but neither that truck nor Downey’s impeded or
altered the flow of traffic. Finally, Liberty argues, the purpose
and use of the yellow warning light on Downey’s truck was only to
protect the truck by showing the truck’s location.[2] Liberty concludes that
Downey did not need to use either the truck or its warning light
to place the lane closure signs; therefore, as in Parker,
when Downey was struck and killed he "was not engaged in a
transaction essential to the use of the pickup truck
. . . ." 250 Va. at 378, 463 S.E.2d at 466.

We disagree with Liberty. In Parker, we specifically
noted that the pickup truck used by the gardeners "had no
special, emergency warning lights," and that the positioning
of the truck for safety purposes was done "independently and
not because of any requirement" of the gardener’s employer.
250 Va. at 378, 463 S.E.2d at 466. The lack of these elements
contributed to the conclusion that the truck in Parker
"merely was used as a means of transportation so that Parker
could complete her landscaping duties." Id. However,
these elements do exist in this case. Here, the specialized
warning equipment and its relationship to Downey’s work made the
use of the truck more than merely a means of transportation.

Archer-Western Contractors, Ltd., Downey’s employer, was doing
road work for the Virginia Department of Transportation which
required the closing of highway lanes. Closing highway lanes
occurs in close proximity to highway traffic, and the need for
procedures to insure the safety of workers is inherent in the
work. As Downey’s co-worker Eichler testified, company procedure
for lane closing required Downey to stay close to the truck
because when motorists see the lights on the truck, they will
think "that . . . people are right back behind the
truck." The truck’s warning equipment, and the procedures
prescribed for putting out the lane closure signs which
incorporated the use of the warning equipment, made Downey’s
truck, like the fire truck in Cassell, a specialized
vehicle, one designed to be used for more than simply
transportation.

The evidence shows that Downey was following the prescribed
safety procedures. When he alighted from the truck, he kept the
yellow warning light burning and he remained at a distance from
the truck which allowed him enough space to remove the sign from
the truck while retaining the protection of the warning light. At
the time he was struck, Downey was using the truck’s specialized
equipment to perform his mission.

Thus, we conclude that Downey qualified as an insured under ? 38.2-2206 because he
was using his employer’s vehicle when he was struck and killed.
Accordingly, we will reverse the judgment of the trial court and
remand the case for further proceedings consistent with the views
expressed in this opinion.

Reversed and remanded.

 

 

 

FOOTNOTES:

[1] Compare with Lexie
v. State Farm Mut. Auto. Ins. Co.
, 251 Va. 390, 469 S.E.2d 61
(1996), and Travelers Ins. Co. v. LaClair, 250 Va.
368, 463 S.E.2d 461 (1995)(interpreting insurance policies to
determine whether parties’ injuries resulted from tortfeasors’
use of uninsured/underinsured vehicles "as a vehicle").

[2]
Liberty’s counsel stated at oral argument that the location of
the truck either in front of Downey or between Downey and the
oncoming traffic did not affect whether the purpose and use of
the truck was to create a safety zone.

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