655 S.E.2d 94
JUSTICE BENJAMIN dissents and reserves the right to file a dissenting opinion.
5. “Language in an insurance policy should be given its plain, ordinary
meaning.” Syllabus point 1, Soliva v. Shand, Morahan & Co., Inc., 176 W. Va. 430, 345
S.E.2d 33 (1986), abrogated on other grounds, National Mutual Insurance Co. v.
McMahon & Sons, Inc., 177 W. Va. 734, 356 S.E.2d 488 (1987), modified on other
grounds, Potesta v. United States Fidelity & Guaranty Co., 202 W. Va. 308, 504 S.E.2d
135 (1998).
6. “Under W. Va. Code, 33-6-31(c) [1995], insurers must provide
uninsured motorist coverage, and make available underinsured motorist coverage, for
injuries causally connected to the use of the vehicle, and foreseeably identifiable with the
normal use of the vehicle.” Syllabus point 4, Adkins v. Meador, 201 W. Va. 148, 494
S.E.2d 915 (1997).
7. “When the 'use' of a vehicle is in question for insurance purposes due
to the separation of an individual from a vehicle at the time of an accident, the court must
determine whether there is a causal connection between the motor vehicle and the injury.
In making that determination, the court may consider, but is not limited by, the following
factors: a) whether the individual was in reasonably close proximity to the insured vehicle
at the time of the accident; b) whether the individual was vehicle oriented as opposed to
highway or sidewalk oriented; c) whether the individual had relinquished control of the
vehicle; and d) whether the individual was engaged in a transaction reasonably related to
the use of the vehicle at the time of the accident.” Syllabus point 2, Cleaver v. Big Arm
Bar & Grill, Inc., 202 W. Va. 122, 502 S.E.2d 438 (1998).
8. “Under W. Va. Code, 33-6-31(c) [1995], whether or not an injury
arose from the 'use' of a motor vehicle depends upon the factual context of each case.”
Syllabus point 5, Adkins v. Meador, 201 W. Va. 148, 494 S.E.2d 915 (1997).
Per Curiam:
The appellant herein, Farm Family Casualty Insurance Company (hereinafter
“Farm Family”), appeals from an order entered April 27, 2006, by the Circuit Court of
Mason County. By that order, the circuit court granted summary judgment in favor of the
plaintiff below and appellee herein, Collett L. Keefer, II (hereinafter “Mr. Keefer”), (See footnote 1) ruling that the Farm Family policy of motor vehicle insurance at issue in these proceedings
provided uninsured motorist (hereinafter “UM”) coverage to Mr. Keefer. On appeal to
this Court, Farm Family argues that the circuit court erred by finding that the Farm Family
policy provided coverage for the underlying accident. Upon a review of the parties'
arguments, the pertinent authorities, and the record designated for appellate consideration,
we affirm the decision of the Mason County Circuit Court.
“Insured” [means] “any person or organization
qualifying as an insured in the Who Is An Insured provision of
the applicable coverage.”
. . . .
WHO IS AN INSURED [under the UM endorsement to the
policy]
1. An individual, then the following are “insureds”:
a. The named insured and any “family
members”.
b. Anyone else “occupying” or using a
covered “auto” or temporary substitute
for a covered “auto”. The covered
“auto” must be out of service because of
its breakdown, repair, servicing, “loss”
or destruction.
c. Anyone for damages he or she is entitled
to recover because of “bodily injury”
sustained by another “insured”.
Additionally, the policy defines the term “occupying” as “in, upon, getting in, on, out or
off.”
During the course of the proceedings below, Farm Family moved for
summary judgment. By order entered April 27, 2006, the circuit court ruled as follows:
As noted by the West Virginia Supreme Court of
Appeals in Cleaver v. Big Arm Bar & Grill, Inc., 202 W. Va.
122[, 502 S.E.2d 438] (1998), “When . . . the 'use' of a
vehicle is a question for insurance purposes due to the
separation of an individual from a vehicle at the time of an
accident, the court must determine whether there is a causal
connection between the motor vehicle and the injury.”
Additionally, the [']causal connection must be “more than
incidental, fortuitous, or but for.[']” See Baber v. Fortner[ by
Poe], 186 W. Va. 413, 417[, 412 S.E.2d 814, 818] (1991); Nationwide Mutual Insurance Co. v. Shumate, 63 F. Supp. 2d
745[ (S.D. W. Va. 1999)]. Essentially, the injury must be
foreseeably identifiable with the normal use of the vehicle. Id.
The evidence before the Court in this matter
demonstrates that a normal use of the insured vehicle, the 1992
Dodge truck, was to load and haul the tractor involved in this
accident. In fact, the testimony of both the Plaintiff [Mr.
Keefer] and Mr. Hess at their depositions revealed that their
typical pattern was for Mr. Hess to drop the ramps to the
trailer, attached to the truck, and that the Plaintiff would then
load the tractor onto the attached trailer. In this matter that is
precisely the course of action that was taking place as the
Plaintiff was struck by the uninsured motorist [Ms. Ferrell].
Therefore, applying the rationale from Baber and Cleaver, it
is clear that this was the foreseeable result of a normal use of
this vehicle, and, therefore, under the law, the Court must find
that the insurance coverage at issue in this matter extends to
the Plaintiff.
Additionally, the Plaintiff argues that he was,
essentially, in the process of getting on the insured vehicle,
and, therefore, “occupying” it, albeit, while on a tractor. The
Plaintiff further contends that coverage extends to those either
using or occupying the insured vehicle. As defined by the
terms of the policy in question, the word “'occupying' means
in, upon, getting in, on, out or off.” In this matter, the
Plaintiff was essentially in the course of getting on the trailer
attached to the vehicle, and, under the above definition was
“occupying” it. Therefore, applying the terms of the policy in
question, the Court hereby finds and concludes that as a matter
of law, the Plaintiff was in fact “getting on” the vehicle, and,
thus “occupying” it, for purposes of the insurance coverage.
Ultimately, the Court should, and hereby does, find and
conclude that applying the facts before it to the applicable law
in this area, the insurance policy at issue extends to cover the
Plaintiff in this case, and, therefore, Farm Family Casualty
Insurance Company's Motion for Summary Judgment should
be, and hereby is denied. Furthermore, given that no material
issues of fact exist to preclude the Court from entering
judgment as a matter of law in favor of the Plaintiffs, the
Court . . . hereby finds and concludes as a matter of law that
judgment should be, and hereby is, entered in favor of the
Plaintiff declaring that the insurance policy at issue in this
matter extends to cover the Plaintiff in this case.
From this adverse ruling, Farm Family now appeals to this Court.
Finally, we accord a plenary review to questions of law: “[w]here the issue on an appeal
from the circuit court is clearly a question of law or involving an interpretation of a statute,
we apply a de novo standard of review.” Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194
W. Va. 138, 459 S.E.2d 415 (1995). Guided by these standards, we proceed to consider
the arguments herein raised.
A [by Mr. Hess] I pulled [the truck and trailer] up in
the driveway, give ourselves enough room for me to put the
ramps [on the trailer] down. . . .
Q [by Mr. Casey, attorney for Mr. Keefer] So you
already had it ready to load?
A I had the ramps down and the trailer was prepared
for the tractor.
. . . .
A I put the ramps down and was standing there along
the road waiting for him [Mr. Keefer] to pull in . . . .
May 5, 2005, Dep. of Kenneth D. Hess, at pp. 16-17. Similarly, Mr. Keefer testified as
follows:
Q [by Mr. Power, attorney for Mr. Hess] Why had you
decided to go to where the tractor was after you finished
haying that day?
A [by Mr. Keefer] We was moving the tractor to
another farm.
. . . .
Q And where did he [Mr. Hess] stop?
A Right there where you turn into the private
driveway.
Q Did he pull into that driveway?
A Yes.
. . . .
Q Were you on the tractor when you saw Mr. Hess
pull into the driveway?
A Yes.
. . . .
Q What did you do?
A He dropped the ramps and I proceeded onto [State
Route] 87, and I remember slowing down getting ready to turn
into the driveway, and that's all I can tell you.
. . . .
Q Where was the last location that you can place
yourself on Route 87 before the collision?
A Ready to turn in the driveway.
Q Had you been able to maneuver any part of the
tractor off of Route 87 before the collision?
A Yes.
Q What part?
A The front tires was off, I do believe. I think.
May 5, 2005, Dep. of Collett L. Keefer, II, at pp. 16, 23-24, 33.
At the time of the collision, Mr. Keefer was turning into the driveway so that
he could drive the tractor onto the truck's trailer. Thus, it is clear that Mr. Keefer was
“getting on” to the truck at the time of the subject accident. Accordingly, we affirm the
circuit court's ruling finding that Mr. Keefer was “occupying” the covered truck at the
time of the accident.
W. Va. Code, 33-6-31(c) [1995] requires insurance
companies to provide uninsured motorist coverage, and make
available underinsured motorist coverage, for any person,
except a bailee for hire, who uses the insured vehicle with the
express or implied consent of the named insured. The term
“uses” in W. Va. Code, 33-6-31(c) [1995] is less restrictive
than the term “occupying.” “Use” of an insured vehicle
implies employing the vehicle for some purpose or object of
the user.
Syl. pt. 3, Adkins v. Meador, 201 W. Va. 148, 494 S.E.2d 915 (1997). More specifically, we have explained that the “use” of a motor vehicle entails both a causal connection and a foreseeability component. In other words, “[u]nder W. Va. Code, 33-6-31(c) [1995], insurers must provide uninsured motorist coverage, and make available underinsured motorist coverage, for injuries causally connected to the use of the vehicle, and foreseeably identifiable with the normal use of the vehicle.” Syl. pt. 4, Adkins v. Meador, 201 W. Va. 148, 494 S.E.2d 915. To determine whether a vehicle's use is “causally connected” to the injuries sustained, several factors guide our inquiry:
When the “use” of a vehicle is in question for insurance
purposes due to the separation of an individual from a vehicle
at the time of an accident, the court must determine whether
there is a causal connection between the motor vehicle and the
injury. In making that determination, the court may consider,
but is not limited by, the following factors: a) whether the
individual was in reasonably close proximity to the insured
vehicle at the time of the accident; b) whether the individual
was vehicle oriented as opposed to highway or sidewalk
oriented; c) whether the individual had relinquished control of
the vehicle; and d) whether the individual was engaged in a
transaction reasonably related to the use of the vehicle at the
time of the accident.
Syllabus point 2, Cleaver v. Big Arm Bar & Grill, Inc., 202 W. Va. 122, 502 S.E.2d 438
(1998). Lastly, whether a vehicle was “used” in a particular accident depends upon the
facts and circumstances of the case: “[u]nder W. Va. Code, 33-6-31(c) [1995], whether or
not an injury arose from the 'use' of a motor vehicle depends upon the factual context of
each case.” Syl. pt. 5, Adkins, 201 W. Va. 148, 494 S.E.2d 915.
Applying these holdings to the facts of the case sub judice, we conclude that
the circuit court correctly determined that Mr. Keefer was “using” the insured truck at the
time of his accident with Ms. Ferrell. Pursuant to Syllabus point 4 of Adkins, Mr.
Keefer's injuries were both “causally connected to the use of the” covered truck and were
“foreseeably identifiable with the normal use of the” covered truck. 201 W. Va. 148, 494
S.E.2d 915. With respect to the causal connection component, the factors enumerated in
Syllabus point 2 of Cleaver v. Big Arm Bar & Grill, Inc., 202 W. Va. 122, 502 S.E.2d
438, are instructive to our analysis. The record evidence shows that the tractor “was in
reasonably close proximity to the insured vehicle at the time of the accident” because the
accident occurred as the tractor was turning into the driveway where the truck, with
attached trailer, was parked approximately twenty-five to thirty feet away. Syl. pt. 2, in
part, Cleaver, 202 W. Va. 122, 502 S.E.2d 438. In addition, Mr. Keefer was turning into
the driveway when he was hit by Ms. Ferrell. Thus, while the tractor was on the highway,
it was oriented toward the truck at the time of the collision. See id. Under the facts of this
case, the inquiry as to “whether the individual had relinquished control of the vehicle” is
not applicable because Mr. Keefer was not in control of the truck and the intended use of
the truck to haul the tractor did not require him to operate the truck during the loading
process. Id. Finally, as we have repeatedly observed during our analysis, at the time he
was injured, Mr. Keefer “was engaged in a transaction reasonably related to the use of the
vehicle.” Syl. pt. 2, in part, Cleaver, 202 W. Va. 122, 502 S.E.2d 438. As noted above,
Mr. Keefer was driving the tractor so that it could be loaded onto the trailer that was
attached to the covered truck; thus, the injuries Mr. Keefer sustained while driving the
tractor were “causally connected to the use of the” truck. Syl. pt. 4, in part, Adkins, 201
W. Va. 148, 494 S.E.2d 915.
Moreover, it was foreseeable that the tractor would be loaded onto the truck
and that injuries might occur during that process. Syl. pt. 4, in part, Adkins v. Meador,
201 W. Va. 148, 494 S.E.2d 915. The policy of insurance providing coverage for Mr.
Hess's truck was a business policy designating the insured business as a “farmer.” Insofar
as the insured truck was intended to be utilized for farm use, and the policy specifically
recognized this fact, the injuries sustained while attempting to load a farm vehicle, i.e.,
the tractor, onto the insured farm truck were “foreseeably identifiable with the normal use
of the” covered truck. Id. Therefore, the circuit court did not err by concluding that Mr.
Keefer was “using” the covered truck at the time of the accident.