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GILE, et al.

January 14, 2000

Record No. 990247






Present: All the Justices

Donald R. Mullins, Judge

In this appeal, we consider whether the trial
court erred in concluding that a child who lives with her mother
and her mother’s male companion is the "foster child"
of that companion and, thus, is an "insured" person as
those terms are defined in his motor vehicle liability insurance

The facts in the case are undisputed. In August
1996, 16-year-old Charmayne Gile was injured in an automobile
accident while riding as a passenger in a vehicle owned and
operated by Maria Lynn Dye. The accident occurred when Dye’s
vehicle collided with a vehicle owned and operated by Norman
Russell Carter, Jr. Both vehicles were insured under motor
vehicle liability insurance policies, and the terms of those
policies are not at issue in this appeal.

At the time of the accident, Charmayne lived
with her mother, Tyna Gile, and Tyna Gile’s companion, Danny J.
Beavers, Jr., the named insured of the policy at issue in this
case. Tyna Gile and Beavers were not married to each other but
had cohabited since 1989.

Charmayne was not related to Beavers by blood
or marriage and had not been designated as Beavers’ ward or
foster child in any legal proceeding. However, Beavers had
"acted like Charmayne’s father" since Beavers and Tyna
Gile began living together, and he "look[ed] upon [her] as
though she were his own daughter." Charmayne, in turn,
looked to Beavers exclusively for "paternal love, affection,
care, comfort, education, emotion[al] support, and

At the time of the accident, Beavers owned an
automobile that was insured under a policy (the policy) issued by
the Virginia Farm Bureau Mutual Insurance Company (Farm Bureau).
The uninsured/underinsured (UM/UIM) motorist provisions of the
policy define "PERSONS INSURED," among other things, as
"the named insured and, while residents of the same
household, the spouse of the named insured, and relatives, wards
or foster children of either." The medical expense benefits
provisions of the policy provide coverage that includes "the
named insured or any relative who sustains bodily injury while
occupying a motor vehicle." The policy defines
"relative" as "a person related to the named
insured by blood, marriage or adoption, including wards or foster
children, who is a resident of the same household as the named
insured." The policy does not define the term "foster

Charmayne, by her next friend, filed a motion
for judgment against Carter alleging that she sustained personal
injuries as a result of his negligence. A copy of the motion for
judgment was served on Farm Bureau pursuant to Code
? 38.2-2206. Farm Bureau then filed a motion for
declaratory judgment against Charmayne, Tyna Gile, and Beavers
(collectively, Gile), seeking a declaration that Charmayne is not
an insured person under the UM/UIM and medical expense benefits
provisions of Beavers’ policy.

After considering the parties’ admissions and
stipulated testimony, the trial court ruled that Charmayne is
Beavers’ "foster child" and, thus, is an insured person
under both policy provisions. The court concluded:

[I]t appears for all intents and purposes, that
Danny Beavers considered Charmayne Gile as his foster child, as
that term is understood using a broad definition; that the
subject policy of insurance did not provide a definition
limiting, qualifying, or excluding the use of a broad definition;
[and] that a foster child should be afforded the same
consideration as a child by blood or
marriage . . .

On appeal, Farm Bureau argues that Charmayne
was not Beavers’ "foster child" under the policy
provisions because that term has a clear meaning governed by
statute. Farm Bureau contends that a "foster child" is
a child who has been placed in a foster home by the Department of
Social Services or a court under a foster care plan, pursuant to
Code ?? 16.1-281 and –282, when the child’s natural
parents are unable to care for her. Farm Bureau asserts that the
trial court’s application of a more general definition of the
term is erroneous because this application potentially permits an
extension of coverage to any child residing in the home of a
named insured.

In response, Gile argues that the term
"foster child" is ambiguous and, therefore, must be
strictly construed against the insurer and in favor of providing
coverage. Gile contends that under common usage, the term
"foster child" means "a child raised by someone
who is not [her] natural or adoptive parents," and that this
general definition should be applied to afford her coverage under
the Farm Bureau policy. Since Charmayne is being raised by
Beavers, who is not her natural or adoptive parent, Gile asserts
that Charmayne is Beavers’ "foster child" within the
meaning of this policy term.
[1] We disagree with Gile’s arguments.

The language at issue under the UM/UIM
provisions of the Farm Bureau policy is taken directly from Code
? 38.2-2206(B), which provides in relevant part: "[i]nsured
. . .
means the named insured and, while resident
of the same household, the spouse of the named insured, and
relatives, wards or foster children of either." Since this
language was drafted by the legislature, rather than by the
insurer, the construction of this particular policy language
presents a question of statutory interpretation. Although we will
construe the statutory language liberally to accomplish the
intended purpose of the uninsured motorist statute, we
nevertheless are bound by the plain meaning of the words that the
legislature chose in drafting the statute. See Tudor v.
Allstate Insurance Co.
, 216 Va. 918, 921, 224 S.E.2d 156, 158
(1976); Rose v. Travelers Indemnity Co., 209 Va. 755, 758,
167 S.E.2d 339, 342 (1969).

The above-quoted language of Code
? 38.2-2206(B) unambiguously refers to relationships
recognized by law. Since the term "foster child" is not
defined in Code ? 38.2-2206 or in any other section of
Title 38.2, we apply the term "foster child" by
reference to other statutes.

While Title 16.1 does not define the term
"foster child," Code ? 16.1-228 defines
"[f]oster care services" as

the provision of a full range of casework,
treatment and community services for a planned period of time to
a child who is abused or neglected as defined in
? 63.1-248.2 or in need of services as defined in this
section and his family when the child (i) has been identified as
needing services to prevent or eliminate the need for foster care
placement, (ii) has been placed through an agreement between the
local board of social services or a public agency designated by
the community policy and management team and the parents or
guardians where legal custody remains with the parents or
guardians, (iii) has been committed or entrusted to a local board
of social services or child welfare agency, or (iv) has been
placed under the supervisory responsibility of the local board
pursuant to ? 16.1-293.

By implication, therefore, a "foster
child" is a child who receives "foster care
services" under the circumstances specified in the statute,
after a determination has been made that the child is abused,
neglected, or otherwise in need of services. The record before us
does not show that Charmayne is a recipient of such services.
Moreover, Gile admitted in the trial court that Charmayne
"had not been designated as a . . . foster child
of Danny D. Beavers, Jr., by any court or Department of Social
Services or any other government agency."

We conclude, therefore, that the term
"foster child," as used in Code ? 38.2-2206(B),
does not encompass the type of relationship Charmayne has with
Beavers. A contrary conclusion is unsupportable because the
substance of this type of relationship can be determined only
from a subjective assessment of its length and quality.
Therefore, we hold that the trial court erred in concluding that
Charmayne was covered under the UM/UIM provisions of Beavers’
policy as his "foster child."

We next consider whether the trial court erred
in determining that Charmayne was Beavers’ "foster
child" under the medical expense benefits provision of the
policy. The term "foster child" does not appear in Code
? 38.2-2201, the statute providing for payment of medical
expense benefits, but Farm Bureau incorporated the term in this
portion of the contract by including "foster child" in
its definition of "relative." Since use of the term
"foster child" in this part of the policy does not
appear in the context of language taken directly from a statute,
we consider this term in the insurance contract under familiar
principles applicable to the interpretation of insurance
policies. If a term in a policy is ambiguous, we construe the
term in favor of coverage. S.F. v. West Am. Ins. Co., 250
Va. 461, 464, 463 S.E.2d 450, 452 (1995); Granite State Ins.
Co. v. Bottoms
, 243 Va. 228, 234, 415 S.E.2d 131, 134 (1992);
Virginia Farm Bureau Mut. Ins. Co. v. Hodges, 238 Va. 692,
696, 385 S.E.2d 612, 614 (1989). However, if the disputed policy
language is unambiguous, we apply its terms as written. Osborne
v. National Union Fire Ins. Co.
, 251 Va. 53, 56, 465 S.E.2d
835, 837 (1996); Moore v. State Farm Mut. Auto. Ins. Co.,
248 Va. 432, 435, 448 S.E.2d 611, 613 (1994); State Farm Fire
and Cas. Co. v. Walton
, 244 Va. 498, 502, 423 S.E.2d 188, 191

As stated above, the term "relative"
is included in the policy definition of "injured
person" that applies to the payment of medical expense
benefits under the policy. "Relative" is defined by the
policy as "a person related to the named insured by blood,
marriage or adoption, including a ward or foster child, who is a
resident of the same household." We conclude that the term
"foster child," as employed in this definition,
unambiguously refers to a child who resides in the same household
with the named insured and has a relationship recognized by law
with the named insured. Our conclusion is based on the context in
which the term is used, which exclusively describes such
relationships recognized by law. Thus, we hold that the term
"foster child," as incorporated in the medical expense
benefits portion of the policy, has a meaning identical to the
use of that term in the UM/UIM portion of the policy.

For these reasons, we will reverse the trial
court’s judgment and enter final judgment in favor of Farm Bureau
declaring that Charmayne is not Beavers’ "foster child"
under the terms of the policy presented in this appeal.

Reversed and final judgment.



[1] Gile also raised alternative
arguments in the trial court that Charmayne is Beavers’
"ward" or relative by "adoption," as those
terms are used in the policy. Since Gile did not assign
cross-error to the trial court’s failure to rule in her favor on
these issues, we do not address these arguments on appeal. Rule