Bray v. Insurance Co. of Pennsylvania

917 F.2d 130
CourtCourt of Appeals for the Fourth Circuit
DecidedOctober 17, 1990
DocketNos. 89-2383, 89-2389
StatusPublished
Cited by4 cases

This text of 917 F.2d 130 (Bray v. Insurance Co. of Pennsylvania) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bray v. Insurance Co. of Pennsylvania, 917 F.2d 130 (4th Cir. 1990).

Opinion

BUTZNER, Senior Circuit Judge:

Joseph C. Bray appeals from a judgment denying him underinsured motorist coverage on a semi-trailer he was hauling when he was injured in an accident. We reverse because Virginia law entitles Bray to underinsurance coverage, although the policy issued to the owner of the semi-trailer did not on its face purport to afford this coverage.

I

Bray, a resident of Virginia, was driving a tractor-trailer in Seaford, Delaware, when he was involved in an accident with a car that had run a stop sign. Bray owned the tractor and had leased it to U.S. Lines Trucking. The tractor was pulling a semitrailer owned by U.S. Lines and insured by the Insurance Company of the State of Pennsylvania (hereafter Pennsylvania,' although the company is not an agency of the Commonwealth of Pennsylvania).

Bray had no insurance on his tractor. Title 49 C.F.R. § 1057.12(j) required U.S. [132]*132Lines, lessee of the tractor, to maintain insurance for the protection of the public during the period of the lease. The insurance provided by the automobile involved in the accident is insufficient to pay for Bray’s medical expenses and lost wages. Bray therefore sought a declaratory judgment to establish his right to underinsurance coverage that he contends Virginia law required Pennsylvania to include in its policy on the U.S. Lines semi-trailer. Jurisdiction is based on diversity of citizenship.

At the time of the accident, U.S. Lines had a liability policy for $1,000,000 issued by Pennsylvania to comply with Interstate Commerce Commission regulations. See 49 C.F.R. § 1043.2(b)(2)(C) (1985). The policy itself explicitly provided only $15,000 per person and $30,000 per accident under-insurance motorist coverage.

The district court held that the policy provided no underinsured motorist benefits to Bray either by the policy’s terms or by statute. Bray v. Insurance Co. of Pennsylvania, 705 F.Supp. 1145, 1148 (E.D.Va. 1989). Bray appeals the declaration that the Pennsylvania policy affords him no coverage. Pennsylvania cross-appeals, urging alternative grounds for affirming the district court’s judgment.

The district court found that the U.S. Lines trailer was principally garaged in Virginia. Virginia Code § 38.1-21, recodified as § 38.2-124 (1990 repl. vol.), includes a semi-trailer in its definition of a motor vehicle for insurance purposes. The Pennsylvania policy does not significantly differ from the statute. It defines “auto” to include a semi-trailer.

Virginia does not require a trucking company to carry insurance. The trucker may satisfy proof of financial responsibility by-electing to be self-insured and filing an approved surety bond or other security. §§ 56-299 — 56-301. If the trucker does not elect to be self-insured, it must carry insurance. § 56-299. At the time of the accident, Virginia law required that every insurance policy issued to the owner of a motor vehicle principally garaged in the state shall provide both personal injury liability coverage in the amount of $25,000 for one person, $50,000 for two or more persons injured in the same accident, and an equal amount of uninsured, which includes underinsured, motorist coverage. § 46.1-1(8), recodified as § 46.2-100; § 38.1-381(a) and (b), recodified as § 38.2-2206. Virginia law also provided that motorists who carried more than $25,-000/$50,000 liability coverage would receive underinsured motorist coverage equal to their liability coverage, unless they specifically rejected this amount of underinsured motorist coverage within 20 days of the issuance or renewal of the policy. The statute required insurance carriers to give notice of this option to their insured. §§ 38.1-380.2B, recodified as §§ 38.2-2202(B), 38.1-381(b). Pennsylvania did not give U.S. Lines notice about the option, nor did U.S. Lines advise Pennsylvania that it rejected uninsurance coverage in an amount equal to its liability coverage.

Each provision of the Virginia motor vehicle statute “is as much a part of the policy as if incorporated therein.” State Farm Mut. Auto. Ins. Co. v. Duncan, 203 Va. 440, 443, 125 S.E.2d 154, 157 (1962); accord White v. National Union Fire Ins. Co., 715 F.Supp. 1339 (W.D.Va.1989), aff'd, 913 F.2d 165 (4th Cir.1990). Therefore, if the plain text of Virginia’s motor vehicle insurance statutes is applied to the facts of the case, Pennsylvania afforded U.S. Lines uninsured motorist coverage in the amount of $1,000,000 on the semi-trailer involved in the accident that injured Bray.

II

Pennsylvania contends that for several reasons Virginia law does not obligate it to furnish U.S. Lines $1,000,000 underinsured motorist coverage and that, in any event, Bray is not entitled to the benefits of such coverage.

A

Bray, Pennsylvania argues, lacks standing to sue because only U.S. Lines, the named insured, can contest alleged deficiencies in the policy. Pennsylvania cites Gast v. Nationwide Mut. Fire Ins. Co., 516 [133]*133So.2d 112 (Fla.App.1987), which held that an employee could not complain about deficiencies in his employer’s uninsured motorist policy. But see Quirk v. Anthony, 563 So.2d 710, 714-15 (Fla.App.1990) (disagreeing with Gast).

The district court properly rejected this defense. Va.Code § 38.1-381(c) defines the term “insured” as used in the context of uninsured motorist coverage to include “any person who uses, with the consent, expressed or implied, of the named insured, the motor vehicle to which the policy applies.” The Supreme Court of Virginia, construing the uninsured motorist statute, emphasized that it is the statute that affords a permissive user protection. The Court stated:

It is our opinion that, as to a permissive user of an insured vehicle, the legislature intended, in the uninsured motorist statute, to provide protection against an injury which occurs to one while using such vehicle.

Insurance Co. of North America v. Perry, 204 Va. 833, 838, 134 S.E.2d 418, 421 (1964). Bray’s reliance on the statute affords him standing. In White, we sustained a judgment in an action based on the uninsured motorist statute by an employee who was using her employer’s car. In White, as here, the insured did not specifically reject the increased coverage. 913 F.2d at 169. In view of Quirk, Perry, and White, we decline to follow the Florida decision on which Pennsylvania relies.

B

Pennsylvania argues that since Bray was operating his own tractor, he cannot recover.

The flaw in Pennsylvania’s argument is that Bray bases his claim on the statutory requirement of coverage for the semi-trailer. He was a permissive user of the semi-trailer because he was using it to carry U.S. Lines cargo at the time of the accident. A towed vehicle is a “used” vehicle. American Fire & Casualty Co. v. Allstate Ins. Co., 214 F.2d 523, 524-25 (4th Cir.1954);

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917 F.2d 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bray-v-insurance-co-of-pennsylvania-ca4-1990.