Newman v. Erie Insurance Exchange

507 S.E.2d 348, 256 Va. 501, 1998 Va. LEXIS 149
CourtSupreme Court of Virginia
DecidedNovember 6, 1998
DocketRecord 980025
StatusPublished
Cited by26 cases

This text of 507 S.E.2d 348 (Newman v. Erie Insurance Exchange) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Newman v. Erie Insurance Exchange, 507 S.E.2d 348, 256 Va. 501, 1998 Va. LEXIS 149 (Va. 1998).

Opinions

JUSTICE KEENAN

delivered the opinion of the Court.

This appeal of a declaratory judgment presents two issues of motor vehicle insurance coverage involving a child who was struck by a motor vehicle while walking across a highway to board a school bus.

The facts in the case are undisputed. One morning in February 1993, seven-year-old Johnny Calvin Newman waited for his assigned school bus alongside the eastbound lane of Route 57 in Henry County. Route 57 is a two-lane highway at this location. The bus came to a stop in the westbound lane, across the road from Johnny. The bus driver activated the bus’ warning lights and its “stop arm.” To board the bus, Johnny had to walk across the eastbound lane of Route 57 and then cross in front of the bus. As Johnny was walking across the eastbound lane, he was struck by a motor vehicle operated by Ephriam Drake Sayers.

The school bus, which was owned by the Henry County School Board, was insured under the Board’s “commercial automobile lia[504]*504bility” insurance policy issued by Erie Insurance Exchange (Erie). The policy listed the Henry County School Board as the named insured and included within its uninsured/underinsured motorist (UM/UIM) coverage “anyone while occupying” a vehicle insured under the policy. The policy defined “occupying” as “in or upon, getting into or out of, or getting off.” The policy also was subject to Code § 38.2-2206, which mandates UM/UIM coverage for, among others, “any person who uses the motor vehicle to which the policy applies, with the expressed or implied consent of the named insured.”

Johnny, by his parents and next friends Randall and Brenda Newman, filed a motion for judgment seeking damages for personal injuries against, among others, the personal representative of Sayers’ estate, the school bus driver, and the School Board. Pursuant to Code § 38.2-2206(F), a copy of the motion for judgment was served on Erie as an insurer providing potential UM/UIM coverage.

Erie filed a bill of complaint for declaratory judgment, asking the trial court to declare that Johnny was not an insured under the UM/ UJM provisions of the School Board’s policy. For purposes of determining the availability of UM/UIM coverage, Erie and the Newmans stipulated the above-stated facts concerning how the accident occurred. They further agreed that at the time of the accident, Johnny was not riding the bus as a passenger, was not a guest in the bus, and was not a named insured or family member residing in the same household as a named insured.

Erie moved for summary judgment, arguing that no material facts remained in dispute and that it was entitled to judgment as a matter of law based on this Court’s decision in Stern v. Cincinnati Insurance Company, 252 Va. 307, 477 S.E.2d 517 (1996). The trial court granted the motion for summary judgment and entered an order concluding that Johnny was not an insured under the UM/UIM provisions of the Erie policy. The court stated in its order that Johnny was not “using, occupying, getting on or getting off of the school bus at the time of the accident, as per Stern v. Cincinnati Insurance Company.”

On appeal, the Newmans argue that Johnny was “occupying” the school bus at the time of the accident, as that term is defined in the Erie policy. They assert that since a school bus is a specialized type of vehicle, the differences involved in boarding that type of vehicle must be recognized when interpreting this policy term. They contend that the term “getting into” an insured vehicle, considered in the [505]*505context of boarding a school bus, encompasses the very activity in which Johnny was engaged.

The Newmans also argue that Johnny was “using” the school bus at the time of the accident, within the meaning of Code § 38.2-2206. They contend that since Johnny was struck while walking across the road after the bus driver had activated the bus’ specialized safety devices, he was using those devices and was injured while engaged in an activity essential to the use of the bus as a vehicle.

In response, Erie argues that our decision in Stem controls both issues raised in this case. Erie contends that the facts in Stem are indistinguishable from the facts presented here, and that the policy language at issue in that case was very similar to the policy language before us. Thus, Erie asserts that the doctrine of stare decisis requires a conclusion that Johnny was not occupying or using the school bus insured by Erie.

In considering these issues, we determine first whether Johnny was “occupying” the school bus under the terms of the Erie policy. As stated above, the policy defines “occupying” as “in or upon, getting into or out of, or getting off.” The portion of the definition most applicable to the facts of this case is the term “getting into.” The Newmans agree with Erie that the facts in Stem are indistinguishable from the facts before us. There, a child was struck and injured by an oncoming motorist while walking across a road to board a school bus. Id. at 309, All S.E.2d at 518. To board the bus, the child was required to walk across one complete lane of traffic and then proceed in front of the bus that was stopped in the other lane. She was struck in the lane opposite the lane in which the bus was stopped, two or three feet from the center fine in the road. Id.

Under policy language that defined “occupying” as “in, upon, getting in, on, out or off,” we held that the child was not “occupying” the school bus. Id. at 310-11, All S.E.2d at 519. We explained that the policy definition must be interpreted in relation to the term defined and stated that the word “occupying” “denotes a physical presence in or on a place or object.” Id. at 311, 477 S.E.2d at 519. We held that, considered in this context, the terms “getting in” and “getting on” required a close proximity to the bus that was not demonstrated by the child’s location since she was across the center line of the road from the bus when she was struck. Id.

Under the facts before us, there is no material difference between the policy language at issue in Stem and the language of Erie’s policy. When Johnny was struck, his location in the lane opposite the [506]*506lane in which the bus was stopped did not place him in such close proximity to the bus as would constitute a physical presence in or on it. See id. Thus, under the plain and ordinary meaning of the terms in the Erie policy, Johnny was not “occupying” the school bus at the time he was struck.

In arguing that he was “using” the bus within the meaning of Code § 38.2-2206, Johnny acknowledges that acceptance of his position would require us to overrule the portion of Stern in which we concluded that the child was not using the bus when struck. There, we held that a bus driver used a bus and its equipment to create a safety zone for the child, but that “the safety measures did not constitute a use of the bus by [the child].” Id. at 312, 477 S.E.2d at 520. We stated that the child was not using the bus, within the meaning of Code § 38.2-2206, at the time she was struck “because she was not yet a passenger of the school bus.” Id. at 313, 477 S.E.2d at 520. In reaching this conclusion, we stated that our holding was governed by our prior decisions in Insurance Company v. Perry, 204 Va.

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Newman v. Erie Insurance Exchange
507 S.E.2d 348 (Supreme Court of Virginia, 1998)

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Bluebook (online)
507 S.E.2d 348, 256 Va. 501, 1998 Va. LEXIS 149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newman-v-erie-insurance-exchange-va-1998.