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Lawyer can’t tap firm’s auto policy for accident

Peter Vieth//April 17, 2015

Lawyer can’t tap firm’s auto policy for accident

Peter Vieth//April 17, 2015//

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TA Washington lawyer who did some legal work at his Virginia home was nonetheless not covered by his law firm’s auto insurance policy for an accident on the way to the office that left another man seriously injured.

The decision came April 16 from the Supreme Court of Virginia. The court’s opinion is Bartolomucci v. Federal Ins. Co. (VLW 015-6-030).

The case arose from an apparent coverage gap for driver Vu Vo. He claimed severe injuries caused in 2009 when attorney H. Christopher Bartolomucci allegedly pulled out in front of Vo’s car on Route 7 in Loudoun County.

Bartolomucci – once a highly rated candidate for a federal appeals court judgeship – was a partner at the firm then known as Hogan & Hartson. He worked at the firm’s Washington office.

Vo sued Bartolomucci seeking $1 million in damages. Bartolomucci’s personal auto policy had a $100,000 limit, and Vo was unwilling to settle within that coverage. Bartolomucci’s law firm had an auto policy with a $1 million limit.

Bartolomucci went to court seeking a declaration that his car was within the scope of his firm’s policy. After hearing evidence, a jury was asked whether Bartolomucci was using the car in the “business or personal affairs” of his firm at the time of the collision.

The jury said, “Yes,” but Loudoun County Circuit Judge Thomas D. Horne ruled the jury’s decision was not supported by the evidence. Horne decided the firm’s insurer did not owe any coverage for the accident.

The Supreme Court granted appeals for both Bartolomucci and Vo. Arguments centered on whether Bartolomucci’s car was being used in the firm’s business or personal affairs.

Vo and Bartolomucci said the lawyer’s home was a de facto work location for his firm, since he did not have set work hours and often worked at his home office with the firm’s encouragement.

In fact, the two argued, Bartolomucci was actually on the job and traveling between work locations when the accident occurred.

They argued the trip itself was in the firm’s business because Bartolomucci’s Blackberry was turned on and he often thought about work during his commute.

The justices were not persuaded.

“Contrary to these arguments, the facts of this case do not amount to anything more than a typical commute from home to work,” wrote Justice LeRoy F. Millette Jr. for the court.

The only work-related activity Bartolomucci accomplished before leaving home that day was to check his work email and call his office voicemail, the court said.

Although the lawyer had his Blackberry on, he did not use it on the trip, the court added.

“Merely having access to modern technology such as a Blackberry, which would allow Bartolomucci to conduct work activity if that device was used,” did not turn private activity into company business, Millette wrote.

“And merely thinking about work does not make a commute ‘in’ the business, as contemplated by the policy language,” the justice said.

The court pointed out that Bartolomucci did not bill for any work activity before the accident.

The justices said there was no evidence to support coverage from the firm policy and Horne should have struck the case before letting it go to the jury. Horne was correct to set aside the jury verdict afterward, the high court said.

The court affirmed final judgment for the firm’s insurance company.

In reaching that ruling, the Supreme Court declined to resolve whether the jury’s verdict should have been considered binding or advisory. Even if binding, the lack of support doomed the coverage claim anyway, the court said.

The court interpreted policy language to determine that the named insured was the firm, and not its partners. An excess coverage provision was deemed inapplicable. The court said the policy language regarding “business or personal affairs” was not ambiguous.

VLW 015-6-030

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