Stone v. Liberty Mutual Insurance

478 S.E.2d 883, 253 Va. 12, 1996 Va. LEXIS 118
CourtSupreme Court of Virginia
DecidedDecember 16, 1996
DocketRecord 960412
StatusPublished
Cited by20 cases

This text of 478 S.E.2d 883 (Stone v. Liberty Mutual Insurance) 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
Stone v. Liberty Mutual Insurance, 478 S.E.2d 883, 253 Va. 12, 1996 Va. LEXIS 118 (Va. 1996).

Opinions

JUSTICE COMPTON

delivered the opinion of the Court.

Acting under the provisions of our Rule 5:42, the United States Court of Appeals for the Fourth Circuit certified to this Court a question of Virginia law, the answer to which is determinative of a proceeding pending before the Fourth Circuit. We accepted the certification by order entered in June 1996. The question involves statutory interpretation and a motor vehicle insurance coverage issue arising [14]*14from an uninsured/underinsured motorist endorsement to an insurance policy.

The record establishes the following facts. Thomas M. Stone was a part-time employee of Tidewater Pizza, Inc., in Virginia Beach, for which he delivered pizzas. In making deliveries, Stone was responsible for providing his own transportation and used his own vehicle.

In October 1992, while Stone was lawfully operating his vehicle in the scope of his employment, a collision occurred between his vehicle and one operated by Carol Drye. Stone sustained serious personal injuries in the collision.

Later, he recovered a judgment against Drye in the Circuit Court of the City of Virginia Beach for $250,000 plus interest and costs. At the time of the collision, only $25,000 of liability or other coverage was applicable to Drye’s use of her vehicle and available to satisfy Stone’s judgment.

In effect at the time of the collision was a “Business Auto” policy of insurance issued by Liberty Mutual Insurance Company to “Tidewater Pizza, Inc.,” as the named insured. The coverage afforded under the policy included motor vehicle liability insurance with a limit of $350,000 and, by endorsement, uninsured motorist insurance, which included underinsured motorist coverage, carrying the same limit. For clarity, we shall use the term “uninsured” to include both underinsured and uninsured coverage.

Subsequently, Stone filed in the Virginia Beach circuit court a declaratory judgment action against Liberty Mutual seeking a declaration that the insurer was liable to him for $225,000 under the uninsured motorist coverage. Following removal of the case by the insurer to the United States District Court for the Eastern District of Virginia, the parties stipulated to the facts and submitted the coverage issue to the district court on cross-motions for summary judgment.

The district court sustained Stone’s contention that the insurer’s policy issued to Tidewater conflicted with Code § 38.2-2206, the uninsured motorist statute. When the provisions of an insurance policy conflict with the requirements of the uninsured motorist statute, the statute controls and die policy provisions are void and ineffective. Bryant v. State Farm Mut. Auto. Ins. Co., 205 Va. 897, 900, 140 S.E.2d 817, 819 (1965). Thus, the district court granted Stone’s motion for summary judgment and held he was entitled to uninsured coverage in the sum of $225,000 plus interest and costs. The district court rejected an alternative theory of coverage offered by Stone.

[15]*15The insurer appealed the former ruling of the district court and Stone appealed the latter. The Fourth Circuit agreed with the district court on the latter ruling and has affirmed that portion of the district court’s order. The issue generating the former ruling is the subject of this certification.

According to the policy’s uninsured motorist coverage, the insurer agrees to pay, up to the limit of liability, “all sums the insured is legally entitled to recover as damages from the owner or driver of an uninsured motor vehicle. The damages must result from bodily injury sustained by the insured . . . caused by an accident.” Of course, Stone can recover against the insurer only if he qualifies as an “insured” under the uninsured coverage.

The uninsured motorist endorsement provides coverage to two classes of potential insureds. First, the term “insured” is defined as the named insured (Tidewater) “or any family member” of the named insured. Second, the term “insured” includes “[ajnyone else occupying a covered auto.” For purposes of the uninsured motorist coverage, the term “covered auto” is defined to include “[ojnly those autos [Tidewater owns] which, because of the law in the state where they are licensed or principally garaged, are required to have and cannot reject uninsured motorists insurance.” There are two such vehicles listed in the policy, a Ford and a Honda; Stone’s vehicle is not listed in the policy.

According to the policy’s liability coverage, the insurer agrees to pay, up to the limit of liability, all sums “the insured legally must pay as damages because of bodily injury ... to which this insurance applies, caused by an accident and resulting from the ownership, maintenance or use of a covered auto.” The term “covered auto” for liability purposes is defined to include certain non-owned automobiles, that is, automobiles Tidewater “d[id] not own, lease, hire or borrow which [were] used in connection with [Tidewater’s] business.” Stone’s automobile was not owned, leased, hired, or borrowed by, Tidewater, but it was being used in Tidewater’s business. However, the definition of the term “insured” in the liability portion of the policy does not include Stone. In fact, according to the order of certification, Stone “stipulated that he is not covered under the liability provisions of the policy, and indeed, the exclusions defining the term ‘insured’ clearly operate to exclude him.”

Stone does not dispute that his automobile is not a “covered auto” under the uninsured motorist provisions of the policy; the only automobiles covered under those provisions are those vehicles owned [16]*16by Tidewater. Stone argues, however, consistent with the district court’s ruling, that he was operating an automobile to which the Liberty Mutual policy applied because he was operating a “covered auto” under the liability provisions. Thus, he says, the insurer was required under Code § 38.2-2206(A), infra, to provide him uninsured motorist coverage since, according to Stone, he was an “insured” under Code § 38.2-2206(B), infra. Stone contends that the policy violates subsection (A) because although it specifically insures non-owned automobiles under the liability provisions of the policy, it does not provide uninsured motorist coverage to anyone occupying the same non-owned automobiles.

The insurer recognizes that it must provide uninsured motorist insurance pursuant to subsection (A), but argues it can limit who is an “insured” without violating the provisions of subsection (B) of the statute. Alternatively, the insurer maintains that Stone is not entitled to benefits under the policy because benefits are excluded under the liability provisions of die policy given the fact that Stone was not legally liable for the collision with Drye.

Thus, the following question is framed for us by the Fourth Circuit: “Whether, under these facts, Stone was an insured as defined in subsection 38.2-2206B; that is, does subsection 38.2-2206B mandate that Stone is an insured under the uninsured motorist endorsement of Tidewater’s automobile policy notwithstanding the policy’s language?”

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Stone v. Liberty Mutual Insurance
478 S.E.2d 883 (Supreme Court of Virginia, 1996)

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Bluebook (online)
478 S.E.2d 883, 253 Va. 12, 1996 Va. LEXIS 118, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stone-v-liberty-mutual-insurance-va-1996.