10.3 WHO IS COVERED?
10.301 Statutory Coverage. The medical expense statutes 8 provide coverage for the following:
| 1. | Persons occupying the insured motor vehicle; | |
| 2. | The named insured while in, upon, entering, alighting from, or being struck by a motor vehicle while not occupying a motor vehicle; and | |
| 3. | While a resident of the named insured's household, the spouse and relatives of the named insured while in, upon, entering, alighting from, or being struck by a motor vehicle while not occupying a motor vehicle. 9 |
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10.302 "Motor Vehicle" Defined. Medical expense coverage arises from "the ownership, maintenance or use of any motor vehicle." 10 "Motor vehicle" is defined in section 46.2-100 of the Virginia Code. A motorcycle is a motor vehicle. 11 A bicycle, motorized skateboard, or scooter is not a motor vehicle. 12 A moped may be a motor vehicle depending on where it is being operated and at what speed it is being operated. 13 A forklift, for example, is also a motor vehicle. 14
Some insurance policies may refer to benefits in relationship to an "automobile." Any policy referring to an automobile will be deemed to provide coverage for all motor vehicles, not just for automobiles. If there is any question as to whether a motor vehicle is involved, counsel should refer to section 46.2-100 and the applicable policy.
10.303 "Resident Relative" Defined. In addition to providing coverage to the insured, the medical expense statutes extend coverage to relatives of the named insured who reside in the insured's household. There is a large body of case law defining what it means to be a resident relative of the insured's household. A detailed discussion of this case law is more appropriately set forth in Chapter 8 of this handbook. However, the following is a brief overview of the case law addressing the term "resident relative."
There is no statutory definition of the term "relative" in the context of medical expense coverage. Virginia case law acknowledges that the common meaning of the term "relative" is consistent with the definition frequently contained in insurance policies. 15 The common meaning of "relative" includes persons related to the named insured by blood, marriage, or adoption. 16 In addition, the uninsured motorist statute, section 38.2-2206 of the Virginia Code, provides guidance in defining the term. That section defines "insured" to include "the named insured and, while resident of the same household, the spouse of the named insured, and relatives, wards or foster children of either."
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The term "resident" or "residence" is the subject of voluminous case law in Virginia. 17 The Virginia Supreme Court has held that the phrase "resident of the same household" connotes a settled and permanent status. 18 Thus, someone who is merely a guest in a home is not a resident of the home. The term "household"
embraces a collection of persons as a single group, with one head, living together, a unit of permanent and domestic character, under one roof; a "collective body of persons living together within one curtilage, subsisting in common and directing their attention to a common object, the promotion of their mutual interests and social happiness." 19
The key to determining if a person is a resident of a household is to determine the person's intent to reside in the household. 20 In addition to an intention to be a member of a household, the person must also maintain "a reasonable degree of regularity in the person's residential contacts with the household; casual, erratic contacts are not sufficient." 21
A person can also be a resident of two households at the same time. In Nationwide Mutual Insurance Co. v. Robinson, 22 a young boy was injured in an automobile accident. His parents were divorced and had joint custody of the boy. To determine whether the boy was entitled to uninsured motorist benefits under his father's insurance policy, the court had to decide whether the boy was a resident of his father's household. The boy spent a lot of time with his father and was welcome in the father's home anytime. He spent 40 percent of his time in his father's home and 60 percent of his time in his mother's home several blocks away. As long as both parents knew where the boy was staying, he could stay at either parent's home. The boy's Department of Motor Vehicles identification card listed his mother's address as his address. The boy had his own bedroom in each house and kept clothes, toys, video games, and other possessions in each room. Based on these facts, the
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court held that the boy could simultaneously be a resident of both households. The boy maintained family relationships with members of both his mother's and his father's households. Accordingly, for purposes of underinsured motorist coverage, the court concluded that he could be considered a "resident" of both households.
10.304 "Occupying" a Motor Vehicle. What does it mean to "occupy" a motor vehicle? The Virginia Supreme Court has addressed this issue in numerous cases in the context of both medical expense coverage and uninsured motorist coverage. 23 Most of the cases involve uninsured motorist coverage; however, because the cases apply the same terminology, many of the uninsured motorist coverage cases are analogous to the medical expense coverage cases.
Insurance policies often define "occupying" to mean "in or upon or entering into or alighting from" the motor vehicle. This was the case in Edwards v. Government Employees Insurance Co. 24 Edwards was changing a flat tire on a vehicle owned by a friend and insured by Government Employees Insurance Co. The friend provided Edwards with a key, which he used to open the trunk and remove the jack and the spare tire. He raised the car with the jack and was removing the lug nuts from the wheel when he was struck by a car driven by an uninsured motorist. At no time had Edwards been inside the car; however, he intended to immediately drive the car to a service station to have the flat tire repaired once the spare tire was put on. The court concluded that Edwards was using the car within the meaning of the uninsured motorist statute but that he was not occupying the vehicle within the meaning of the policy definition. The court held that the act of replacing the tire was "not an act immediately related to occupancy of the vehicle." 25 Although he ultimately planned to occupy the vehicle, at the time of the accident his actions related to changing the flat tire—not to occupying the vehicle. In addition, Edwards' physical contact with the vehicle was insufficient to constitute a presence in or on the insured motor vehicle. Thus, Edwards was not occupying the vehicle at the time of the accident.
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In part, the court based its decision in Edwards on its previous holding in Stern v. Cincinnati Insurance Co., 26 a case that was subsequently overruled by Newman v. Erie Insurance Exchange. 27 Both cases involved a question of whether underinsured motorist benefits were available to a child who was struck by a vehicle while crossing the street to board a school bus. The school bus was flashing its red lights, the safety stop sign was activated, and the bus's safety gate was extended. When the child entered the roadway to board the bus, he was struck by a car. One of the issues in the case was whether the child was "occupying" the bus at the time of the accident. The insurance policy defined occupying to mean "in or upon, getting into or out of, or getting off." Although the Newman court agreed that the child was not "occupying" the vehicle as defined in the policy, the court concluded that he was "using" the vehicle at the time of the accident within the meaning of section 38.2-2206 because of his close proximity to the bus and the fact that the safety equipment had been activated to allow him to cross the highway.
The Virginia Supreme Court also commented on the meaning of the term "occupying" in Lord v. State Farm Mutual Automobile Insurance Co. 28 While Lord was litigated over the notice provisions of the medical payments coverage of an automobile policy, the court's analysis of when someone is said to be occupying a motor vehicle is quite instructive. Lord was attacked by an assailant while attempting to get into his car. He was resting his books against the side of his vehicle and reaching into his pocket for car keys when he was assaulted. He sought coverage for medical payments under his automobile insurance policy. The policy provided coverage for insureds who were occupying the insured vehicle at the time of the injury. The policy defined "occupying" to mean "in or upon or entering into or alighting from." Thus, the coverage question was whether Lord was entering into (occupying) his vehicle at the time of the attack.
10.305 "Alighting From" a Motor Vehicle. Even if the claimant is not "occupying" the insured motor vehicle, he or she may still be entitled to medical expense coverage under section...
