Virginia Supreme Court Expands Scope of UM/UIM Coverage
In an opinion issued on September 17, 2015, Est. of Slone v. Selective Ins. Co. of America, et al., the Virginia Supreme Court effectively expanded the scope of UM/UIM coverage in Virginia. Slone was filed as a declaratory judgment action that stemmed from a wrongful death case. The Roanoke County Circuit Court held that two Selective UIM policies did not apply to the decedent, Richard Slone, and Slone's estate appealed.
Slone was a dump truck operator employed by Draper Paving, which contracted to fill a trench on Route 419. Slone's role in the project was to dump asphalt from his truck into the bucket of a front-end loader, and in furtherance of this he periodically exited his vehicle and walked a short distance to see if any asphalt had spilled. Draper Paving's superintendent was James Harmon. Harmon drove a company pickup truck that was equipped with a strobe light. He testified it was his "regular practice" to use his pickup as a "safety tool" by placing it as a buffer between his crew and oncoming traffic. Harmon moved the truck down the road with his work crew as they filled the trench. The subject accident occurred shortly after midnight, when two drunk drivers crashed their vehicles into the front-end loader, causing it to spin and collide with Slone's dump truck. Following the accident, Slone's coworkers found him pinned under one of the drunk drivers' vehicles, the blade of the front-end loader, and the left rear tire of the dump truck. The evidence was that Slone was approximately 9 feet from the dump truck when the accident occurred. He was also 200 feet from Harmon's pickup truck.
Selective provided insurance to Draper Paving. Its policy provided coverage for anyone "occupying" an insured vehicle, where "occupying" is defined to mean "in, upon, using, getting in, on, out of, or off." Each covered vehicle had coverage of $1,000,000, which applied independently to multiple vehicles involved in the same accident.
The Court agreed with the Estate's argument that Slone was covered under the dump truck's policy because he was "getting out of" it at the time of the accident, and was therefore "occupying" the vehicle. In reaching its decision, the Court rejected the "bright-line rule" holding that a person is no longer getting out of a vehicle when they are no longer in physical contact with it. Instead, the Court applied the test of whether, in the "totality of the circumstances," a person remained "vehicle-oriented" at the time of the accident. The Court inferred that "Slone did not have enough time to begin a new activity separate from getting out of the vehicle" based on his location after the accident, and the nature of the activity he was engaged in when it occurred.
That an employee who was repeatedly getting in and out of a dump truck in order to perform his work near the time of an accident is entitled to UIM coverage from the policy ensuring his vehicle does not seem necessarily unreasonable. What is unfortunate is the manner in which the Court found coverage in this case. The Estate does not appear to have argued to the Circuit Court that Slone was "using" his vehicle at the time of the accident, which would have been the more logical argument. Instead, it argued only that Slone was "getting out of" it when the accident occurred. In order to find coverage, therefore, the Court deployed its newly-announced "vehicle-oriented" test. This vague test both expands the class of UIM insureds, and does nothing to resolve the uncertainty over when UIM coverage is triggered.
The Court also found that Slone was covered under the pickup's policy, because he was "using" that vehicle at the time of the accident. The Court reiterated the rule that whether a person is using a vehicle is determined by "whether there was a causal relationship between the incident and the employment of the insured vehicle as a vehicle." Because the pickup truck was a specialized vehicle that was being used as a "rolling barricade" and a warning to approaching traffic for the protection of Draper Paving's employees, including Slone, Slone was "using" the vehicle at the time of the accident.
By finding that the policy on Harmon's pickup truck provides coverage to Slone, the Court has expanded the rule it relied on past its breaking point. As the dissent points out, it now appears there is little to stop an employee such as Slone from being covered by the policy of every work vehicle on a work site. To expand on the dissent's point, consider that various types of accident avoidance technology are becoming increasingly common in vehicles, and add to this the fact that the U.S. Department of Transportation recently approved vehicle to vehicle communication systems for use on U.S. roads. Once every vehicle at a worksite is equipped with accident avoidance technology and is in active communication with oncoming traffic, a plaintiff will have an even easier time arguing that every work vehicle present at an accident site was contributing to his protection, such that he is entitled to coverage from the UIM policy on each of them. With the use of machine learning based on shared information, a plaintiff could even argue that he was protected by input from every vehicle in his employer's fleet, and is therefore entitled to all of their policies as well.
Selective has moved for a rehearing. Should the current Slone opinion stand, however, it creates a vague new test for finding UIM coverage, and stretches an old test past the bounds of reason. In so doing, it lays the foundation for a large expansion of the pool of UIM coverage available to an injured person, particularly one whose employer has a large and modern vehicle fleet or has numerous vehicles at a work site. At the same time, this inquiry is a fact-intensive one, and it remains to be seen how enthusiastically the circuit courts will apply the Slone rules to unique fact patterns. To limit the impact of this decision, defense counsel should know this case, and be prepared to distinguish it.
To discuss UM/UIM coverage further, please contact one of the members of the Coverage & Casualty Group.
