Municipal – Insurance – Bus ‘Use’ – Special Needs Student – Immunity

A Brunswick County Circuit Court grants the county school board’s plea in bar to this negligence action filed by an eight-year-old special needs student who alleges he was injured after his school aide failed to remain with him on the bus to assist his exit and he was removed by the bus driver, so that his wheelchair rolled off the curb and dumped him face first into the street; under the same “use” test, UM coverage under the boy’s mother’s policy also fails.

The school board and its employees are covered by Virginia Association of Counties Risk Management Pool insurance (the VACO policy), a self-insured pool of Virginia counties that insured the school system for injuries incurred in the transportation of its pupils. While the school board realizes that this statute applies to the instant case, it contends the VACO policy that covers the bus does not cover the circumstances alleged in the complaint. The school board maintains there is no “valid and collectible insurance in force to cover the injury complained of,” so it retains its immunity.

In relevant part, the VACO policy states: The Fund will pay all sums the participant (the school board) legally must pay as damages because of bodily injury or property damage to which this coverage applies, caused by any accident and resulting from the ownership, maintenance or use of a covered auto.

Thus, the critical inquiry in this case is whether plaintiff’s accident resulted from the school board’s use of the bus. If it did, then the school board is liable and plaintiff is entitled to damages under the VACO policy.

Plaintiff argues “the steps involved in operating the bus’s wheelchair lift system and placing a student properly on the sidewalk were all steps performed by [plaintiff student’s] bus driver involved in his use of the school bus.” The court respectfully disagrees based on the existing case law and the facts of this case.

The primary test in determining the “ownership, maintenance or use” provision in automobile insurance policies is satisfied comes from State Farm Mut. Ins. Co. v. Powell, 227 Va. 492 (1984). Under this test, there must be a causal relationship between the accident and employment of the insured motor vehicle as a vehicle.

Here, even if the court were to accept plaintiff’s argument that the accident occurred during the unloading process, the court would still find that based on the facts of this case, the Powell test and the pertinent case law, the accident did not result from the ownership, maintenance or use of the bus. The accident in this case occurred after the bus driver had removed plaintiff from the bus, when plaintiff was on the sidewalk. Like in Powell, the bus, at best, was merely the situs of the accident. The bus driver had completed her use of the vehicle. While the driver returned to the bus after leaving plaintiff on the sidewalk, her use of the bus to transport and unload plaintiff was complete. The bus in no way was in “use” at the time of the accident.

Also, under the principles in Powell, VACO could not possibly have intended such an accident to be within the scope of the coverage afforded. In agreeing to the insurance contract with the school board, VACO did not expect to be held liable for the negligence of an employee who just happened to commit that negligence close to the insured bus, after just removing a passenger from the bus.

Having found the accident did not occur in the “use” of the bus, VACO does not have to provide coverage. Therefore, there is no “valid and collectible insurance in force to cover the injury complained of” under Va. Code § 22.1-194 and the school board retains its immunity. The school board’s plea in bar is granted and the case against it is dismissed with prejudice.

Plaintiff also seeks coverage for his injuries under his mother’s uninsured motorist policy with Erie.

Because plaintiff is an “insured” under the Erie policy, the court focuses its analysis on uninsured motorist insurance cases in which the plaintiff is already known to be an “insured” under the policy from which he seeks to recover. The Supreme Court of Virginia has applied the Powell test to this group of cases, even though Powell was not an uninsured motorist case.

Here, the school board’s liability does not arise out of the ownership, maintenance or use of the bus. The court’s reasons for not finding “use” under the VACO policy apply equally to the court’s consideration of “use” under the Erie policy; therefore, the court incorporates those herein. Also, this case is analogous to Erie Ins. Co. Exchange v. Jones, 248 Va. 437 (1994). In the instant case, the proximity of the bus and plaintiff’s prior positioning on it are nothing more than mere incidental aspects of the injury he sustained.

Erie’s motion to quash is granted.

Griffin v. Brunswick County Public School Board (Sharrett, J.) No. Cl07-76, Nov. 14, 2008; Brunswick County Cir.Ct.; Allan S. Reynolds Jr., Jim H. Guynn Jr., Raymond J. Sinnott III for the parties. VLW 008-8-236, 10 pp.