Written by Gary Reinhardt, Esq.
With significant statutory changes looming, the Virginia Supreme Court expanded the reach of Underinsured Motorist coverage in the case of Bratton v. Selective Insurance, decided on September 17, 2015. In Bratton, the plaintiff’s decedent, a dump truck driver, was an employee of a paving subcontractor working on a highway asphalt project. The plaintiff’s decedent hauled hot asphalt to the job site and dumped the asphalt into the bucket of a front end loader. The dump truck driver’s job required him to periodically exit his dump truck to check for spillage of the asphalt. Given that the job was being done at night, as an additional safety measure, the superintendent for the paving subcontractor parked his pick-up truck with flashing lights and headlights illuminated at the start of the work zone. The pick-up truck was parked approximately 200 feet from where the dump truck stopped to unload asphalt.
At the time of the accident, the decedent had exited the cab of his dump truck and was standing near the truck. He had been out of the truck for less than 30 seconds when two drunk drivers barreled past the superintendent’s pick-up truck and struck the front end loader. The decedent was found pinned between one of the drunk driver’s vehicles, the front end loader and the rear of the dump truck. He died as a result of his injuries.
The plaintiff claimed that both the UIM policy of the dump truck and the UIM policy of the pick-up were available to the dump truck driver’s estate; the dump truck’s policy under the theory that the driver was still “exiting” the vehicle and also that the driver was “using” the pick-up at the time of the accident. The Fairfax Circuit Court disagreed and found that neither UIM policy applied.
On appeal, the Supreme Court found that even though the dump truck driver was out of the truck and not even touching it, he was still in the process of exiting his vehicle when the accident occurred. The Court specifically rejected “a bright-line rule that the process of getting out of a vehicle is complete as soon as physical contact with the vehicle is severed.” Instead, the Court considered the “totality of the circumstances – including the individual’s proximity to the vehicle, the duration of time during which the individual acts, the particular actions taken, the situation in which the individual is acting, the motivation for the individual’s actions if any can be ascertained, and the purpose of the policy’s coverage.” The Court stated that all of these factors enter into determining if the individual, whether in contact with the vehicle or not, was still “vehicle-oriented” at the time of the accident.
Ultimately, the Court found that even though the driver completely exited the cab of the truck, he was still “vehicle-oriented” because he “did not have enough time to begin a new activity separate from getting out of the vehicle.” Because of this, the UIM coverage of the dump truck was available to the driver’s estate.
The UIM debate did not end here. The Court then analyzed the potential that the dump truck driver was “using” the pick-up almost 200 feet away, a vehicle never driven or even touched by the dump truck driver. The Court said that the pick-up constituted a “specialty vehicle” because of its additional warning lights and its position at the start of the work zone. It then concluded that the dump truck driver was “using” the pick-up for its special purpose of warning other traffic about the work zone. This created the necessary “causal relationship” between the use of the pick-up and the dump truck driver to allow the dump truck driver’s estate to also access the UIM coverage on the pick-up truck.
This broad expansion of UIM coverage will now require an extensive investigation of your insured’s actions around the vehicle in question. Also, you will need to find out what other vehicles were in the vicinity and why each of those vehicles was near where the accident occurred.