Court applies broad ‘use’ test for coverage

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A paving company truck driver was “using” both the company dump truck he had stepped out of and a pickup truck parked as a safety barrier some 200 feet away when he was crushed between vehicles as two drunken drivers plowed into a highway worksite, a divided Supreme Court of Virginia said on Sept. 17.

The majority opinion reversed a Roanoke County Circuit Court decision that said the estate of the driver, Richard L. Slone, could not collect insurance benefits from his employer’s carrier, Selective Insurance Company of America.

Two dissenting justices warned that the majority had effectively extended UM/UIM coverage to “every worker on a jobsite when there is a covered vehicle arguably used by any one of them.”

Slone had left his dump truck in order to check on asphalt spills within 30 seconds of the accident, according to the majority opinion by Justice LeRoy F. Millette Jr. Without the Selective proceeds, administrator Karen Slone Bratton could only collect proceeds from the two drunken drivers’ insurance policies and from Slone’s personal vehicle insurance policy with State Farm, Roanoke County Circuit Judge Charles N. Dorsey said.

Millette rejected a bright-line rule that the process of getting out of a vehicle is complete as soon as physical contact with the vehicle is severed, in favor of a totality-of-the-circumstances test. Applying that test, Millette said it could be inferred that Slone was still “vehicle-oriented” and therefore was “getting out of” the dump truck at the time of the accident. Because he was “occupying” the dump truck, Bratton is entitled to insurance proceeds under Selective’s coverage of the dump truck as a “covered auto.”

The court compared the “use” of the “specialized” pickup truck in Bratton – parked at the front of the worksite with its headlights, hazard lights and a safety strobe light activated – to the “use” of a firetruck in Great American Ins. Co. v. Cassell and a company truck in Randall v. Liberty Mut. Ins. Co. Slone was likewise “occupying” the pickup truck, making Bratton eligible for benefits under the Selective policy coverage.

With the additional coverage from Selective, Bratton also could collect $100,000, not just $50,000, as Dorsey said, under his personal vehicle policy with State Farm, Millette said in Bratton, Adm’r v. Selective Ins. Co.

Justice S. Bernard Goodwyn dissented from the majority decision on coverage for the pickup truck, saying the standard of review demanded deference to Dorsey’s view of the evidence.

In a dissent joined by Justice Elizabeth McClanahan, Justice D. Arthur Kelsey said Slone was “using” neither the dump truck nor the pickup truck.

“Neither precedent nor common sense supports the majority’s expansive view” of uninsured and underinsured motorist coverage, Kelsey wrote.