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Uninsured and Underinsured Motorist Insurance Under Va. Code §38.2-2206: Simultaneously “Occupying”

On September 17, 2015, the Virginia Supreme Court announced a split-vote decision in the case styled, Bratton v. Selective Ins. Co. of Am., 2015 Va. LEXIS 110 (Va. Sup. Ct., Sept. 17, 2015). The decision reversed the trial court. The decision served to expand the scope of UM/UIM coverage in Virginia, through the interpretation of motor vehicle liability policy language. The policy language at issue focused on the definition of “occupying” a motor vehicle, and the meanings of “getting out of,” and “use” of a motor vehicle, as sub-components of its occupancy. The policy language conformed to that approved by the State Corporation Commission of Virginia, pursuant to the requirment for UM/UIM coverage mandated by Va. Code §38.2-2206(A).

The majority and dissenting opinions split along analytical “fissures,” respecting the applicable standards of appellate review and the burden of proof at trial. On the one hand, the majority opinion purported to defer to, and accept the vast majority of, the trial court’s factual findings. It reversed, however, based on its de novo review of the correct meaning of key insurance policy terms; that is, questions of law. The dissents, on the other hand, clearly deferred to the trial court’s factual determinations, and emphasized the plaintiff’s burden of proof at trial. One dissent, authored by Justice Goodwyn, concluded that the trial court’s findings necessarily required affirmance on the issue of motor vehicle “use.” The other dissent, authored in spirited language by Justice Kelsey, and joined by Justice McClanahan, asserted that the majority had “inverted” the burden of proof, shifting it to the defendant insurance company. This dissent also posited that the standard of review applicable to the trial court’s findings dictated an affirmance on all issues.

The case arose from an unfortunate vehicular crash, occurring just after midnight during roadwork operations to lay asphalt. A dump truck driver, Richard Slone (“Slone”), was killed while working to dump asphalt from his truck into the bucket of a front-end loader. During these operations, and within 30 seconds of Slone exiting his truck after one such dumping, two drunk drivers crashed into the front-end loader, spinning it, and causing its rear blade to strike the rear tandem wheels of Slone’s dump truck. Slone died at the scene. Co-workers found him pinned between his dump truck’s tandem wheels, the front-end loader’s rear blade, and one of the crashed cars.

The drunk drivers ignored all work-site approach warnings, including barricades, a flagman, and a strobe light-equipped pickup truck. The pick-up truck displayed all of its lights, including its yellow strobe light. Slone’s supervisor, named “Harmon”, had driven that truck to the work-site. Harmon moved it from time to time to follow work operations. When the crash occurred, some 200 feet separated the pick-up truck from those operations.

Slone’s estate administrator, named “Bratton,” and Slone’s employer’s vehicle insurer, Selective Insurance Company (“Selective”), filed separate declaratory actions. The two actions, consolidated for trial, sought to determine whether Slone fell within the underinsured motorist coverage of Selective’s policy. Among numerous other coverage-related issues, Bratton contended that Slone fell within the policy’s coverage for both the dump truck and his supervisor’s pick-up truck. As to the dump truck, Bratton asserted that Slone was “occupying” it when the crash occurred, in that he was “getting out of” that insured vehicle. The policy’s definition of “occupying” a covered vehicle encompassed, “in, upon, using, getting in, on, out of or off” that vehicle. As to the pick-up truck, Bratton contended that Slone simultaneously occupied it, in that he was “using” it as a safety tool when the crash occurred. Thus, Bratton sought independently applied UM/UIM coverage respecting each vehicle. Following the conclusion of a bench trial, the trial court issued a written opinion that denied policy coverage on either basis.

In reversing the trial court, the Supreme Court remanded the case for further proceedings. A five-member majority held that Bratton could access policy coverage based on Slone’s “getting out of” the dump truck when the crash occurred. Only Justices Kelsey and McClanahan dissented from this holding. A four-member majority held that Slone, at the moment of the crash, simultaneously was “using” Harmon’s pick-up truck. Justice Goodwyn filed a separate dissent from this holding.

Senior Justice Millette authored the majority opinion. In it, the Court noted that although Virginia precedent existed on other elements of the term “occupying” a motor vehicle, no previous decision addressed the meaning of “getting out of” a vehicle. It ruled that, “to be ‘getting out of’ a vehicle is simply to remove one’s self from the vehicle, so as to depart from the vehicle.” Yet, it further noted that other jurisdictions fall within two schools of thought on the parameters of that simple definition. One group of appellate courts concludes that the act of “getting out of “ a vehicle ends when an individual severs physical contact with it, or, moves outside of the vehicle’s immediate “zone of safety.” Other courts go farther, utilizing a totality of the circumstances approach. These courts continue the act of “getting out of” a vehicle until the individual is “no longer ‘vehicle-oriented’.” The Court, that is, the majority, adopted this latter, more expansive definitional test.

The Court then relied principally on three events occurring “within the approximately 30 second timeframe prior to Slone’s death.” From these, it concluded that Slone remained vehicle-oriented to the dump truck, and thus was “getting out of” it when the crash occurred. First, after unloading the asphalt into the front-end loader, Slone lowered the dump bed into a level position. Then, he exited from the truck’s raised cab, leaving the engine running, and shut the door behind him. Finally, Slone walked some 9 feet to the truck’s rear tires, where he met his death. From these events, and their inferences, the Court held that, “Slone did not have enough time to begin a new activity separate from getting out of the vehicle. Likewise, there is no evidence that would lead to a contrary inference, that is, that Slone was no longer vehicle-oriented[.]”

Turning to Sloan’s occupying “use” of the pick-up truck, the Court first looked to its prior decision in Slagle v. Hartford Ins. Co., 267 Va. 629, 635, 594 S.E.2d 582, 585 (2004). There, the Court ruled that “using” a motor vehicle turns on factually ascertaining “whether there was a causal relationship between the incident and the employment of the insured vehicle as a vehicle.” The Court then explored the facts of other Virginia decisions. Based upon this analysis, it held that Slone was “using” the pick-up truck. The dispositive facts included that Harmon positioned that truck, with its lighting system, to protect company employees at the work site. This action rendered the truck a “rolling barricade.” Thus, the opinion concluded, Slone used it for “that specialized purpose during the course of his mission and at the time of the accident,” citing Randall v. Liberty Mutual Insurance Company, 255 Va. 62, 67, 496 S.E.2d 54, 57 (1998).

The Court concluded:

Slone was "getting out of" the dump truck and was "using" the company pickup truck. Slone was therefore "occupying" both of these "covered auto[s]" at the time of the accident under the Selective Insurance Policy. As the Selective Insurance Policy's coverage limit for each "covered auto" applies independently to multiple "covered auto[s]" involved in the same accident, Bratton is entitled to proceeds under the Selective Insurance Policy for both the dump truck and the company pickup truck.

In stark contrast, following a lengthy discussion, Justice Kelsey’s dissent (hereafter referred to as “the dissent”) concluded as follows:

In sum, Slone was not getting out of his dump truck at the time of his accident. He had already gotten out of it, closed the door, and walked at least nine feet away. Nor was Slone using Harmon's pickup truck parked 200 feet down the road. Slone did not even know it was there, and he was not authorized by his employer, the named insured, to use Harmon's pickup truck for any reason.

The majority's contrary holdings, based in large part on rejecting the trial court's factual findings and inverting the applicable burden of proof, effectively extend UM/UIM coverage to every worker on a jobsite when there is a covered vehicle arguably used by any one of them. Neither the text of the statute nor our precedent interpreting it supports such an expansive view of UM/UIM coverage.

Indeed, Justice Kelsey asserted that neither the Court’s precedent “nor common sense” supported “the majority’s expansive view of…UM/UIM…motorist coverage.” To that effect, the dissent stated that “[s]ettled law governing UM/UIM coverage and structural principles defining the proper scope of appellate review undermine both aspects of the majority’s holding.”

The dissent’s analysis began with a discussion of Va. Code §38.2-2206(A) and (B), and the significance of the latter sub-part’s permitted-user language to the case. It also cited Virginia precedent for the proposition that, “[t]he word ‘occupying’ denotes a physical presence in or on a place or object.”

On the issue of “getting out of” the dump truck, the dissent noted that Bratton carried the burden of proof at trial. As such, the dissent criticized the majority’s reliance on what it labeled as a lack of contrary evidence regarding Slone’s activities in his final 30 seconds. The dissent noted, “the party with the burden of proof cannot shoulder it simply claiming that his opponent presented little or no evidence on the disputed matter.” Instead, the “risk of non-persuasion” fell on Bratton, the party carrying the burden of proof.

The dissent also pointed out that the trial judge, sitting as factfinder, received extensive evidence at trial, including its review of Selective’s policy contents. Upon this evidence, the trial court made numerous factual findings. Upon the totality of the evidence, “[Bratton] invited the trial court to find that Slone, after he had ‘exited the dump truck,’ was nonetheless ‘getting out of’ it at the time of the accident…The trial court rejected this counter-intuitive reasoning, as would I.”

As to “use” of the pick-up truck, the dissent both reviewed applicable Virginia precedent and recounted twelve specific trial court findings upon which that judge relied to rule against Bratton. The dissent then lamented that, “the majority disregards these factual findings, implicitly makes contrary findings of its own, and then characterizes the exercise as answering a question of law.” It concluded, “[t]his approach conflicts with the traditional view that we should defer to a trial judge’s factual findings no differently than we would a jury verdict[.]”

Completing its analysis on the “use” issue, the dissent rejected the majority’s reasoning on the causality principle, that is, the nexus required to find that the accident “arose out of the ‘use’ of” the pick-up truck. Reviewing the same cases relied upon by the majority, the dissent found, “the facts of this case, as found by the trial judge as factfinder, do not even come close to satisfying the causality requirement for imposing UM/UIM liability on the insurer.”

So, where lies the heartbeat of this decision? Do the dissents correctly perceive: (1) a failure to give due deference to the trial court’s factual findings, and or, (2) an erroneous unwillingness to respect the applicable burden of proof at trial? Or, did the majority correctly perceive the issues as primarily legal in nature, warranting de novo review of the meanings of definitional terms within a contract of insurance? Did the controversial context of the case, involving the scope of UM/UIM coverage, contribute to the sharpness of the Court’s internal disagreements?

In addition, this case arrived at an unique time for the Virginia Supreme Court. Two Senior Justices, Millette and Lacy, participated in the Court’s decision. Each joined the majority. As the Court’s new membership stabilizes in the days to come, will the doctrinal divisions exposed in this case come to light in other contexts? Or, perhaps, will these differences arise once again in the UM/UIM context?

The Bratton decision also will pose a new array of factual issues for trial judges and juries, as factfinders. For example, Justice Kelsey’s dissent warned of the anticipated difficulties in crafting jury instructions on the “vehicle-oriented” issue respecting “getting out of” a vehicle. (The dissent ominously predicted, “The majority’s ambiguous reasoning creates a new, expansive regime of indeterminate UM/UIM coverage.”) At a minimum, the determination of correct jury instruction language may well spawn future appellate litigation.

Without a doubt, and on several levels, the Bratton decision represents one-to-watch in future personal injury litigation in Virginia. The decision’s implications, and the exposed divisions within the Court, also could spill over into other civil litigation contexts.

Norman A. Thomas, PLLC

1015 East Main Street
Lower Level
Richmond, VA 23219

 

P: (804) 303-9538

 

Mr. Thomas serves appellate clients from throughout the Commonwealth of Virginia in Virginia's appellate tribunals, the State Corporation Commission, and the U.S. Court of Appeals for the Fourth Circuit. 

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