WAGONER v. BENSON


WAGONER v. BENSON


September 18, 1998
Record No. 972621

AMANDA LELIA WAGONER, A MINOR, BY
HER NEXT FRIEND, STACY WAGONER, ET AL.

v.

TERESA SCOTT BENSON, ET AL.

OPINION BY JUSTICE ELIZABETH B. LACY
FROM THE CIRCUIT COURT OF HENRY COUNTY
David V. Williams, Judge

Present: All the Justices

Amanda Lelia
Wagoner, by her next friend, filed a motion for judgment against
the Henry County School Board (the School Board) and Theresa
Scott Benson, a school bus driver for the School Board, for
injuries sustained when she was hit by an automobile while
crossing a road to board a school bus driven by Benson. The trial
court dismissed the motion for judgment, holding that the
defendants were entitled to sovereign immunity under Code
? 22.1-194. We will reverse the judgment of the trial court
and remand the case for further proceedings because we conclude
that the accident arose out of the "loading" of the
school bus as defined by the School Board's liability insurance
policy and, therefore, the defendants were not entitled to
sovereign immunity pursuant to Code ? 22.1-194.

Just before seven o’clock in the morning on December 5, 1995,
Stacy Wagoner drove her daughter Amanda to the school bus stop.
She parked the car north of the westbound lane of State Route 57.
A school bus driven by Benson approached the bus stop in the
eastbound lane of Route 57 with its headlights on. When the bus
was approximately 700 feet from the bus stop, Benson turned on
the flashing red safety lights and, approximately thirty feet
from the stop, she extended a mechanical stop sign. When the bus
reached the stop, Wagoner got out of her mother’s car and began
crossing the westbound lane of Route 57 toward the front of the
bus. When Wagoner was approximately half-way across the westbound
lane, she was struck by a car driven by Mildred V. Brown and
sustained serious injuries.
Wagoner subsequently instituted this litigation.[1] The
School Board and Benson filed a plea of sovereign immunity. [2]
The trial court sustained the plea and dismissed the motion
for judgment, concluding that sovereign immunity was not waived
pursuant to Code ? 22.1-194 because the School Board’s
liability insurance policy did not provide valid, collectible
insurance for Wagoner’s injuries. We awarded Wagoner an appeal.
A public school board is entitled to sovereign immunity from
liability for injuries resulting from the school board’s simple
negligence unless that immunity is abrogated by statute. Kellam
v. School Bd. of the City of Norfolk
, 202 Va. 252, 255, 117
S.E.2d 96, 98 (1960). Code ? 22.1-194 abrogates a school
board’s sovereign immunity to a limited degree. If the school
board is an insured under a policy covering a vehicle involved in
an accident, the school board is "subject to action up to,
but not beyond, the limits of valid and collectible insurance in
force to cover the injury complained of . . . and the
defense of governmental immunity shall not be a bar to action or
recovery." Code ? 22.1-194.
In this case, the School Board was an insured under a motor
vehicle liability policy covering the school bus involved in the
accident. Whether the School Board is entitled to the defense of
sovereign immunity depends upon whether its policy was
"valid and collectible insurance in force to cover the
injury complained of."
The relevant portion of the policy states that the insurer will pay all sums anyone we
protect legally must pay as damages caused by an accident covered
by this policy. The accident must arise out of the ownership,
maintenance, use, loading or unloading of an auto we insure.

Wagoner argues that
the accident in which she was injured arose out of the
"loading" of the school bus, and, therefore, the School
Board and Benson were not entitled to sovereign immunity because
valid and collectible insurance was available. We agree.

"Loading"
is not defined in the liability insurance policy. While the word
"load" can be used as either a noun or a verb, it is
used as a verb in this insurance policy.
Webster's defines the verb
"load" as putting "a load in or on" or
"to place in or on a means of conveyance."
Webster's Third
International Dictionary
1325 (1993). Neither the dictionary
definition nor common usage limits "loading" to a
single point in time or single action. "Loading" is a
process which moves a "load" from one place to another.

In this case, loading the school bus was a function performed
by the bus driver. The loading process, that is moving the
students from the road onto the bus, involved a number of steps.
Those steps, viewed from the perspective of the driver performing
the process, include turning on flashing warning lights and
extending the mechanical stop sign and the metal safety gate, all
of which remain engaged until all students are inside or have
been "loaded onto" the school bus. Under the facts of
this case, the accident clearly arose during the
"loading" of the school bus.
Contrary to the argument of the School Board and Benson, our
decision in Stern v. Cincinnati Ins. Co., 252 Va. 307, 477
S.E.2d 517 (1996), does not require a different result. The
similarity between Stern and this case is limited to the
fact that both cases involve students who were injured while
approaching a school bus with the intent of entering the bus. The
legal issues involved in the two cases are not similar. First, Stern
was not concerned with whether valid and collectible liability
insurance was available to cover the injuries sustained by the
student pursuant to Code ? 22.1-194. Rather, the issue in Stern
involved uninsured motorist coverage, specifically whether
the injured student qualified as an insured under the uninsured
motorist provisions of a school board’s liability policy or was
entitled to coverage under the provisions of the uninsured
motorist statute, Code ? 38.2-2206. Stern, 252 Va.
at 310, 477 S.E.2d at 519. Consequently, the focus of the inquiry
in Stern was the student’s use of the insured vehicle, not
the use of the insured vehicle by the school bus driver, as it is
in this case. Furthermore, Stern addressed the
interpretation of the words "using" and
"occupying" in the context of uninsured motorist
coverage, not the meaning of the word "loading" in the
context of an automobile liability policy. Id. Thus, the
holding in Stern simply is not applicable to this case.
In summary, we conclude that Wagoner’s injuries were sustained in
an accident arising out of the loading of a school bus insured by
a motor vehicle liability policy in which the School Board was an
insured. Because valid and collectible insurance was available to
cover Wagoner’s injuries, the defense of sovereign immunity does
not bar an action against the School Board and Benson for
recovery of damages in an amount up to the limits of the
insurance policy. Code ? 22.1-194.
Accordingly, we reverse the judgment of the trial court and
remand the case for further proceedings.
Reversed and remanded.

FOOTNOTES:

[1] Wagoner also named Brown as a
defendant, but dismissed that claim following a settlement
agreement.
[2] For
purposes of this appeal, we need not distinguish between the
availability of the sovereign immunity defense for Benson and the
School Board.

Scroll To Top