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Tow truck driver prevails in UM/UIM coverage suit

Where a tow truck driver was connecting a disabled RV to his wrecker at the time it was struck by another vehicle, he was “using” a vehicle within meaning of Va. Code Ann. § 38.2- 2206(B) and was accordingly entitled to uninsured/underinsured motorist coverage from the vehicle’s insurer.

Background

On April 20, 2019, Joshua Moore was working as a wrecker operator for Robinson’s Towing and Recovery Inc. On that date, Joseph Zimmerman owned an RV that was insured by Progressive Motor Home. While attending to Zimmerman’s disabled RV, Moore was struck by a vehicle driven by Robert Longnecker.

In this suit, Moore and Progressive dispute whether Moore was an “insured” within the meaning of the Uninsured/Underinsured Motorists Coverage endorsement to the Progressive policy and Virginia Code § 38.2-2206(B). The parties agree that if plaintiff was “occupying” or “using” the RV, he would be entitled to underinsured motorists benefits under the Progressive policy in the event that he obtains a judgment against Locknecker’s estate in accordance with the Virginia Code. Before the court are cross motions for summary judgment.

Use

Plaintiff argues that Moore’s numerous and extensive interactions with the RV in the moments leading up to the collision satisfy the definition of “use” under Va. Code Ann. § 38.2- 2206(B). The court finds that by securing the tow lights on the RV and attaching frame forks to connect the RV to the wrecker, Moore outfitted the RV to both become a specialized vehicle used for safety, and to regain to capability to function as a vehicle itself. The court also notes that Moore entered the RV four times prior to the collision, planned to reenter it once it was successfully towed and was touching the wheel to prepare the vehicle for movement when he was struck.

“Use” of a vehicle is not limited to driving the vehicle. Moore’s actions on and about the RV prior to the accident indicated an intention to move the vehicle from one location to another, as well as an intention to simultaneously employ the stationary RV as a bright, obvious hazard signal to the oncoming I-95 traffic. The fact that plaintiff outfitted the RV with the wrecker’s own lights is immaterial, as the tow light bar could only be effective if attached to the RV and would have aided plaintiff’s mission to tow the RV to a service station. When Moore secured the wrecker’s tools on the RV, that equipment became the RV’s equipment because its utility was inextricable from its placement on the RV.

Progressive asserts that relevant precedent construes the concept of “occupying” more broadly than “use.” Defendant argues that this implies that one cannot “use” a vehicle without also “occupying” it. This court disagrees with this analysis. The case cited by defendant rests its analysis on a section of the Virginia Code that has since been repealed and replaced by § 38.2, the statute at issue in this case. Today, precedent consistently regards the question of whether an individual is “using” a vehicle and the question of whether they are “occupying” a vehicle as separate and distinct. The court finds that, when he was struck, Moore was using the RV within the meaning of Va. Code § 38.2-2206.

Occupying

Because the court has already determined that Moore “used” the vehicle and is thus entitled to coverage, he need not necessarily “occupy” the vehicle also to be entitled to coverage. Nonetheless, out of an abundance of caution, the court will engage with the analysis of whether Moore “occupied” the vehicle, to determine whether an additional basis for coverage exists.

Considering the totality of the circumstances, the court finds that Moore did occupy the RV. He remained in close proximity to the vehicle, touching and entering it frequently. The process of examining the vehicle, securing lights on the vehicle, attaching the vehicle to the wrecker, adjusting the steering wheel of the vehicle and otherwise preparing it for transportation was involved and careful, requiring a sustained period of time to complete. Further, Moore was acting to return the vehicle to an operable state, and most critically, he was acting to move and control the RV in order to achieve those ends.

Plaintiff’s motion for summary judgment granted. Defendant’s motion for summary judgment denied.

Moore v. Progressive Universal Insurance Company, Case No. 3:22-cv-17, March 13, 2023. EDVA at Richmond (Young). VLW 023-3-123. 17 pp.