8.4 RISKS COVERED
8.401 Ownership, Maintenance, and Use. Automobile policies issued in Virginia cover damages that arise out of the ownership, maintenance, or use of the vehicle. 166 The terms "ownership" and "maintenance" generally are not litigated, while it is the definition of "use" 167 over which battles of coverage have been fought. The Virginia Supreme Court has held that "use" is not restricted to "use as transportation," especially when the vehicle at issue is a specialized vehicle such as a fire truck. The following is a brief discussion, in chronological order, of the leading Virginia cases concerning
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whether an accident arose out of the "use" of the vehicle for coverage purposes. 168
In Insurance Co. of North America v. Perry, 169 a police officer was struck by a motorist while on foot 164 feet from his vehicle. At the time of the accident, the officer was in the act of serving a warrant. The court held that the accident did not arise out of the use of the vehicle as a matter of law, as the use of the vehicle ceased once the plaintiff alighted from it.
In Utica Mutual Insurance Co. v. Travelers Indemnity Co., 170 the insured intentionally forced another person's car off the highway, resulting in personal injury. The court held that there was no coverage for intentional torts committed by an insured because Virginia liability policies only cover occurrences that are unexpected from the viewpoint of the insured. In Utica, the injured party sought coverage from the tortfeasor's carrier and not from her own carrier. This explains why the intentional acts exclusion did not apply in Nationwide Mutual Insurance Co. v. Smelser 171 and Fireman's Fund Insurance Co. v. Sleigh. 172
In State Farm Mutual Automobile Insurance Co. v. Powell, 173 a gun accidentally discharged while it was in a gun rack that was attached to the defendant's truck, killing the plaintiff's decedent. The plaintiff, the defendant, and several others were socializing around the truck at a park when the gun accidentally discharged. It could not be determined what caused the gun to fire. The court held that the accident did not arise out of the use of the vehicle because
[t]he truck merely was the situs for a social gathering. The vehicle was equivalent to a park bench, a picnic shelter, a tent, or a shed in that it was being employed as a gathering
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place for friends and not for any specific enterprise usually associated with use of a passenger, farm utility vehicle. 174
In Colonial Insurance Co. v. Rainey, 175 an uninsured motorist had a tire blowout on an interstate, and the spare tire was not inflated. The motorist left the vehicle on foot, carrying the tire with him in order to find a garage so he could inflate it. The motorist was in the process of climbing an embankment some 200 feet away from his vehicle when he dropped the tire, which rolled down the embankment and struck the windshield of a bus operated by the plaintiff. The court held that the motorist was covered, stating that "one's status of 'operator' is not relinquished or lost by merely leaving the vehicle." 176
In Great American Insurance Co. v. Cassell, 177 the plaintiff, a firefighter, was standing 20 to 25 feet from the insured fire truck while completing a fire report when he was killed by a hit and run driver. The fire truck had transported the plaintiff to the fire scene, and the plaintiff was using a clipboard that was taken from the truck in order to complete the report. At the time of the accident, the fire truck was being used to restrict the flow of traffic and to provide a protective barrier for the firefighters. The court held that the firefighter was using the vehicle at the time of the accident because the firefighter "was engaged in a transaction essential to the use of the fire truck when he was killed." 178 Cassell indicates that vehicle type is important when deciding this coverage issue.
In State Farm Mutual Automobile Insurance Co. v. Rice, 179 the defendant's rifle accidentally discharged as he exited the insured vehicle, injuring the plaintiff. The plaintiff and the defendant had used the insured vehicle to transport themselves and their hunting equipment to the hunting area. The plaintiff was in the process of climbing a nearby ridge when the defendant's rifle discharged. The court held that the accident arose out of the use of the vehicle, stating that
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[t]he specific enterprise associated with the use of the Jeep was to transport Vest, Rice, their rifles, ammunition, and other hunting equipment to the location where they intended to embark upon their hunting expedition. . . . Vest had not completed his use of the Jeep when the rifle discharged. 180
Since the gun went off while the defendant was in the process of getting out of the vehicle, the accident arose out of the use of the vehicle.
However, Corriveau v. State Farm Mutual Automobile Insurance Co., 181 while not a shooting case, overrules the earlier decision in Rice. The court stated that "[t]he critical inquiry was whether there was a causal relationship between the incident and the employment of the insured vehicle as a vehicle." 182 Relying on State Farm Mutual Automobile Insurance Co. v. Powell, 183 the court clarified that "if the discharge or incident could have occurred regardless of the vehicle, there is no coverage." 184
In Erie Insurance Co. Exchange v. Jones, 185 after a minor traffic accident the defendant stopped his vehicle, walked back to the other vehicle involved, and rapped the barrel of a gun that he was carrying on that vehicle, causing the gun to discharge and kill the plaintiff's decedent. The defendant was found guilty of involuntary manslaughter. The court found that the proximate cause of the death was a criminal assault and that the incident did not arise out of the use of the vehicle.
In Travelers Insurance Co. v. LaClair, 186 a person occupying a stopped vehicle shot the plaintiff, a police officer. The court held that there was no coverage, because the use of a private motor vehicle "does not contemplate its utilization as a mobile or stationary pillbox or fortress." 187
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In United States Fire Insurance Co. v. Parker, 188 the plaintiff, a gardener, was digging a hole 12 to 15 feet from an insured truck with a dispatch radio on when she was struck by another vehicle. The plaintiff claimed that the truck was being used as a barrier to traffic at the time of the accident, as in Cassell. The plaintiff also claimed that she was using the truck's dispatch radio because she was positioned so that she could hear it. The court held that the claimant "was not engaged in a transaction essential to the use of the pickup truck when she was injured." 189 Unlike the fire truck in Cassell, the court found that the subject vehicle "was merely being used as a means of transportation." 190 Although neither case overrules Parker, Slagle v. Hartford Insurance Co., 191 and Simpson v. Virginia Municipal Liability Pool 192 should be consulted before relying on Parker.
In Lexie v. State Farm Mutual Automobile Insurance Co., 193 the court held that a drive-by shooting by an uninsured motorist was not covered, as in LaClair. The fact that the uninsured vehicle was moving at the time of the shooting made no difference; "[t]he principal focus is upon the manner in which the vehicle, whether moving or stationary, is being employed, not upon the activity or role of any assailant who may be in, upon, or around the uninsured vehicle." 194 This case, along with Rainey, Parker, and Cassell, indicates that the location of the insured in relation to the vehicle, while relevant, is not a determinative factor in deciding whether or not the accident arose out of the use of the vehicle.
In Randall v. Liberty Mutual Insurance Co., 195 the plaintiff's decedent was struck and killed by a motorist while placing lane closure signs on the side of an interstate. At the time of the accident, the plaintiff had exited the vehicle, a small truck, leaving on the engine and a flashing yellow light on top of the cab. As required by his employer, the plaintiff had also placed a stand with two warning flags on it behind the vehicle. The court stated that
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[t]he truck's warning equipment, and the procedures prescribed for putting out the lane closure signs which incorporated the use of the warning equipment, made Downey's truck, like the fire truck in Cassell, a specialized vehicle, one designed to be used for more than simply transportation. 196
The court held that the accident did arise out of the use of the vehicle at the time of the accident, illustrating the importance of the type of vehicle at issue.
In Edwards v. Government Employees Insurance Co., 197 the plaintiff was struck by another vehicle while changing the tire on an acquaintance's car and sought coverage under the acquaintance's policy. The injured person had not driven to the accident scene in the subject vehicle nor had he entered the vehicle other than to obtain the spare tire from the trunk. The maintenance issue was not discussed; instead, the decision concerned whether or not the accident arose out of the use of the vehicle. The court held that the plaintiff was covered by the policy at issue because the plaintiff "was using the insured vehicle's equipment at the time of the accident to perform his mission. That mission was to drive the car to a service station to have the flat tire repaired." 198 Edwards and Rainey indicate that a private passenger vehicle has uses other than transportation and that use of the vehicle's accessories may constitute use of the vehicle. Perhaps the result in Perry would have been different if the police officer had used some item belonging to the police cruiser when he served the warrant.
In Newman v. Erie Insurance Exchange, 199 the plaintiff was struck by another vehicle while crossing the street in order to board the insured school bus. The bus was...
