Virginia: Car Accidents – a Lawyer’s UIM

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On September 17, 2015, the Virginia Supreme Court handed down the wrongful death case of Bratton v. Selective Ins. Co. of Am., No. 141358. In that motor vehicle accident declaratory judgment action, it issued progressive findings of underinsured motorist (“UIM”) coverage for a road construction employee simultaneously “getting out of” of the dump truck he was operating and “using” a pickup truck as a safety vehicle. Id. at 1.

A plurality of Justices found deceased’s estate entitled to $1,000,000.00 UIM coverage under his employer’s automobile policy with Selective for “occupying,” i.e., “getting out of,” the dump truck he was operating; an additional $1,000,000.00 UIM coverage under his employer’s automobile policy with Selective for “occupying,” i.e., “using,” a pickup truck as a rolling safety device; and another $100,000.00 UIM coverage under his personal automobile policy with State Farm, id. at 18; one Justice dissented re UIM coverage for the pickup truck, id., at 18-19; and two Justices dissented re UIM coverage for the dump truck and for the pickup truck. Id. at 19-36. Notably, Bratten did not need to reach whether the employee was “using” the dump truck at the time of collision. Id. at 13 n.3.

First, Bratton defined “‘getting out of’ a vehicle [as] simply to remove one’s self from the vehicle, so as the depart from the vehicle”.   Id. at 8. Bratton then rejected “the bright-line rule that the process of getting out of a vehicle is complete as soon as physical contact with the vehicle is severed,” as well as the expansive “zone of safety” test. Id. at 9. Bratton adopted a “totality of the circumstances” standard to determine on a case-by-case basis whether the victim still was “vehicle-oriented,” id. at 10, still was “occupying,” id. at 13; and that found the employee was “vehicle-oriented” and “occupying” the dump truck.

Re the pickup truck, Bratton observed that the “‘critical inquiry’ in determining whether an individual was ‘using’ a vehicle requires ascertaining ‘whether there was a casual relationship between the incident and the employment of the insured vehicle as a vehicle’.” Id. at 14. “Also, we have established some general guidelines for this analysis, including that the injured person must be using the insured vehicle as a vehicle and as an integral part of his mission, that the actual use of the vehicle as a vehicle is not restricted to its transportation function, and that use of the vehicle need not be the direct, proximate cause of the injury in the strict legal sense.” Id. (internal quotations marks omitted). Bratton found that the employee was “occupying” the pickup because it was being employed “with its warning lights on as a safety vehicle for the purpose of protecting” the employee, “operated as a rolling barricade… among all other safety equipment at the jobsite,” and was a “specialized vehicle, one designed to be used for more than simply transportation”. Id. at 16.

Justice Goodwyn dissented only re Bratton finding use of the pickup truck. Id. at 18-19. Justices Kelsey and McClanahan dissented on all findings in Bratton. Id. at 19-36.