Fireman's Fund Insurance Co. v. Sleigh

Present: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and
Agee, JJ., and Russell, S.J.
FIREMAN'S FUND INSURANCE
COMPANY OPINION BY
SENIOR JUSTICE CHARLES S. RUSSELL
v. Record No. 031515 April 23, 2004
BETTY L. SLEIGH, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Thomas A. Fortkort, Judge
In this appeal from a declaratory judgment, we revisit
the frequently-litigated question of the extent of the
coverage provided pursuant to the uninsured/underinsured
motorist statute, Code § 38.2-2206.
Betty L. Sleigh was employed by the City of Alexandria
Police Department as a Parking Enforcement Officer. Her
unrefuted testimony was the only evidence in the record
concerning the facts of the case. She testified that on May
10, 1999, she went to the 400 block of North Royal Street, in
Alexandria, to enforce "street cleaning hours" when parking
was prohibited by local ordinance on certain days of the week.
Finding a car parked in violation of the ordinance, she
stopped her police vehicle "alongside it," got out, walked to
a position between the two vehicles, and began to write a
citation.
Before Sleigh could complete the citation and place it on
the parked car, a young woman, later identified as Crystal A.
Gibson, ran out of a nearby building and "jumped into the
vehicle," striking Sleigh in the arm with the driver's-side
door as she opened it to enter the parked car. Apparently
realizing that she had failed to bring her keys with her,
Gibson "yelled to a woman behind us . . . bring her the keys."
The woman produced the keys and Gibson opened the door,
striking Sleigh a second time as she got out of the car to
retrieve the keys. Opening the door a third time, Gibson
"jumped back into the car" with the keys and Sleigh "kind of
pushed the door back to defend myself." At this point, Gibson
"started yelling" and "jumped out the door and slammed the
door up against me . . . she come [sic] flying out of the car
and pushed the door very, you know, really very hard, and I
turned to move and she then pushed me where my left side went
up against the car." Sleigh further testified that this final
blow from Gibson's car door drove her back into the side of
her police vehicle with such force that she sustained
permanent back injury requiring surgery. Sleigh tried to make
a radio call requesting "backup" but Gibson seized her radio,
threw it to the ground, "jumped in her car and took off."
Sleigh filed a motion for judgment against Gibson in the
trial court to recover damages for her injuries and took the
position that Fireman's Fund Insurance Company (the insurer)
afforded coverage to her under the uninsured motorist
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provisions of a policy the insurer had issued on Sleigh's
personal automobile. The insurer brought the present motion
for declaratory judgment against Sleigh seeking an
adjudication that the uninsured motorist coverage provided by
its policy does not apply to Sleigh's "altercation" with
Gibson. It is undisputed that Sleigh was an "insured" under
the policy and that Gibson was an "operator of an uninsured
motor vehicle" as defined by Code § 38.2-2206 and as
contemplated by the policy. The only dispute is whether the
coverage applies under the facts of the case.
The parties, by agreement, submitted the case to the
court on Sleigh's deposition and the policy, further agreeing
that the facts were undisputed. The court, in a letter
opinion, ruled that the insurer's policy afforded coverage to
Sleigh, and dismissed the motion for declaratory judgment.
On appeal, the insurer contends that Gibson was not using
her car as a vehicle when she struck Sleigh with the car door,
but was rather using the car, or a part of it, as a weapon.
The uninsured motorist clause of the policy provides:
The Company will pay . . . all sums which the
insured . . . shall be legally entitled to recover
as damages from the owner or operator of an
uninsured motor vehicle because of bodily injury
sustained by the insured . . . caused by accident
and arising out of the ownership, maintenance or use
of such uninsured motor vehicle.
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The governing statute, Code § 38.2-2206, provides, in
pertinent part, that automobile insurance policies issued in
Virginia must contain:
. . . provisions undertaking to pay the insured all
sums that he is legally entitled to recover as
damages from the owner or operator of an uninsured
motor vehicle . . . .
The insurer contends that Gibson's use of the uninsured
vehicle as a weapon is inconsistent with the concept of "use
of the vehicle as a vehicle," a prerequisite to uninsured
motorist coverage under our decisions, citing Nationwide
Mutual Insurance Co. v. Smelser, 264 Va. 109, 114, 563 S.E.2d
760, 763 (2002). The insurer argues that the tortfeasor's
intent was to use the car door to inflict injury, not for the
ordinary purposes for which the door was designed, and that
this is determinative.
Sleigh argues that the tortfeasor's intent is irrelevant
because the true test is whether the uninsured vehicle was
being employed in the ordinary manner for which it was
designed and constructed, rather than in a manner foreign to
its designed purpose, and whether such employment was causally
related to the injury sustained. The trial court, after an
extensive review of our decisions, agreed.
In Lexie v. State Farm Mut. Auto. Ins. Co., 251 Va. 390,
396-97, 469 S.E.2d 61, 64 (1996), applying similar policy
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language, we said, "The principal focus is upon the manner in
which the [uninsured] 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." In Utica Mutual v. Travelers Indemnity, 223 Va.
145, 147-48, 286 S.E.2d 225, 226 (1982), we found an insurer
liable for injuries sustained by its insured's passenger as a
result of a willful tort by an uninsured motorist who
deliberately ran the insured's car off the road.
Thus, it is clear that in Virginia the intent of the
uninsured tortfeasor is irrelevant to the question of
coverage; rather, the determinative issue is the nature of the
employment of the uninsured vehicle. Where such a vehicle is
employed in a manner foreign to its designed purpose, e.g.,
Lexie, supra (drive-by shooting from moving vehicle);
Travelers Insurance Company v. LaClair, 250 Va. 368, 463
S.E.2d 461 (1995) (shooting from behind door of stopped car,
using it as a shield), there is no coverage under the
uninsured motorist provisions because the resulting injury
does not arise out of the "use" of the uninsured vehicle as a
vehicle, but instead arises from its employment in a manner
contemplated neither by its designers, its manufacturer, nor
the parties to the insurance contract.
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On the other hand, where the injury arises out of the
employment of the uninsured vehicle in the manner for which it
was designed and as reasonably contemplated by the parties to
the insurance contract, coverage exists under such policies
where there is a causal relationship between such use and
injury sustained by the insured, regardless of the intent of
the uninsured motorist. See, Smelser, supra (passenger in
moving car driven by uninsured motorist reached out window and
seized straps of purse carried by insured pedestrian; forward
movement of uninsured car dragged victim along the pavement).
Car doors are designed and manufactured to be opened and
closed. It is clearly within the contemplation of the parties
to an insurance contract that injury may sometimes be caused
by the act of using a car door as designed, either negligently
or willfully. Here, Gibson's use of her car door as designed
was use of the uninsured vehicle "as a vehicle" and was
causally related to Sleigh's injury. We agree with the trial
court's analysis and will affirm the judgment.
Affirmed.
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