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Using, occupying vehicle not limited to driving

Nick Hurston//April 10, 2023

Using, occupying vehicle not limited to driving

Nick Hurston//April 10, 2023

Damaged vehicle being loaded onto tow truck

A tow-truck driver is entitled to uninsured and underinsured motorists, or UM/UIM, insurance coverage because he was “using” and “occupying” a disabled RV while preparing to tow it from the interstate, the Eastern District of Virginia has held.

The RV’s insurer argued that, since the vehicle was disabled and lacked special safety or towing equipment, the tow-truck driver, who was severely injured by a passing driver, could neither have “used” it within the meaning of the relevant statute nor “occupied” it within the meaning of its policy.

U.S. District Judge Roderick C. Young disagreed.

“‘Use’ of a vehicle is not limited to driving the vehicle,” he explained. “The Virginia Supreme Court confirmed in Bratton [v. Selective Ins. Co. of Am.] that use of a vehicle in a manner for which it was designed or equipped is sufficient to trigger Va. Code § 38.2-2206.”

The opinion is Moore v. Progressive Universal Insurance Company (VLW 023-3-123).

Disabled RV

Joseph Zimmerman called for a tow truck after his RV became disabled on the right shoulder of Interstate 95. Joshua Moore was the wrecker operator who later arrived and parked in front of the RV.

Zimmerman gave Moore the keys and allowed him to enter the RV for towing purposes. Moore, sitting in the driver’s seat, couldn’t get the RV started. He set the parking brake and turned on the RV’s emergency lights.

Moore then attached his tow light — a bar equipped with flashing red lights — to the rear of the RV, turned it on and secured the RV’s mud flaps. Lying next to the RV, Moore manipulated or removed several of the vehicle’s components to prepare it for towing.

To make it safer to work on the RV, Moore attached his frame forks to lift the RV’s front wheels, disengaged the parking brake and used his wrecker to pull the RV 20-30 feet forward and to the right.

With the RV’s parking brake reengaged, Moore removed the forks. With the help of a co-worker, he assembled wheel grids under the RV. Inside the RV, he disengaged the parking brake and secured the steering wheel in a straight-ahead position.

After lifting the RV to a proper towing height, Moore attached straps to the RV by kneeling down with both arms touching the driver’s side front tire. At that moment, Robert Longnecker lost control of his sedan, veered off the road, struck Moore and fled the scene.

Moore was seriously and permanently injured with medical bills and lost wages exceeding $1 million.

Coverage dispute

Zimmerman’s RV was insured by Progressive, whose policy provided UM/UIM coverage in accordance with Va. Code § 38.2-2206 to an “insured,” which it defined as “any person ‘occupying’ the covered automobile.”

According to the code, “insured” for UM/UIM purposes is defined as “any person who uses the motor vehicle to which the policy applies, with the expressed or implied consent of the named insured[.]”

Moore filed suit against John Doe and Longnecker’s estate; Longnecker had passed away by then. Longnecker’s sedan was insured by GEICO, which agreed that Moore was injured by an underinsured motor vehicle within the meaning of its policy.

After Progressive disputed whether Moore was an “insured” under its UM/UIM endorsement and Va. Code § 38.2-2206(B), Moore sought declaratory judgment in state court. The case was removed to the Eastern District of Virginia. Each moved for summary judgment.

The parties agreed that Moore was entitled to coverage under Progressive’s policy if he was either “using” Zimmerman’s RV pursuant to statute when he was struck, or if he was “occupying” the RV pursuant to the policy language.


“The ‘critical inquiry’ in determining whether a person has ‘used’ the vehicle is ‘whether there was a causal relationship between the incident and the employment of the insured vehicle as a vehicle,’” Young said, citing the Supreme Court of Virginia’s Slagle v. Hartford Ins. Co. decision from 2004.

The judge agreed with Moore’s contention that “[u]se of a vehicle is not restricted to its transportation function” under Slagle.

“The confluence of these factors strongly aligns with prior Supreme Court of Virginia rulings finding that an individual claiming insurance coverage ‘used’ a motor vehicle,” Young wrote.

He rejected Progressive’s claim that, because the RV was disabled and thus unable to fulfill its vehicular purpose, Moore wasn’t using the RV “as a vehicle” when he was struck and thus wasn’t an “insured” under the statute.

“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,” Young wrote, adding that Moore’s use of his own safety equipment was immaterial.

“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,” the judge wrote. “Critically, exercise of control over a vehicle is also use of a vehicle as contemplated by § 38.2-2206.”

Progressive’s assertion that relevant cases construed the concept of “occupying” more broadly than “use,” was similarly rejected.

“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,” Young explained. “Because Plaintiff Moore controlled the RV by attaching it to his wrecker, used the RV and its adopted equipment as a critical part of his mission to tow it, and entered and planned to reenter the vehicle, the Court finds that, when he was struck, he was using the RV within the meaning of Va. Code § 38.2-2206.”


Finally, Young rebuffed Progressive’s reliance on cases in which someone was injured while having incidental contact to help repair a vehicle, but no intention to occupy it.

“The Progressive Policy covers anyone ‘occupying’ the RV, defined by the policy as meaning ‘In; Upon; or Getting in, on, out or off,’” the judge noted. “Virginia caselaw considers ‘the totality of the circumstances,’ rather than a bright-line rule, to determine whether a person was occupying a vehicle.”

Again, Young looked to Bratton, which determined that the “worker was ‘still vehicle-oriented and in the process of “getting out of” the dump truck at the time of the collision.’”

Here, Moore’s contact with the vehicle remained “vehicle-oriented.”

“Taken together and viewed in light of the factors considered in Bratton’s ‘totality of the circumstances’ analysis, these facts indicate that Moore was ‘occupying’ the vehicle per the Progressive Policy and is therefore entitled to coverage under the language of the policy,” Young concluded.

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