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United States Fire Insurance Co. v. Parker11/3/1995
OPINION BY JUSTICE A. CHRISTIAN COMPTON
In this insurance coverage case, we deal with the "use" of a motor vehicle in connection with a claim for underinsured motorist protection afforded by Virginia's uninsured motorist statute.
On September 8, 1989, appellee Nora Rivera Parker was employed as a landscape gardener by the manager of Ford's Colony, a residential development in James City County near Williamsburg. About 12:00 noon on that day, Parker and two other employees were planting winter cabbages at the development's entrance adjacent to Long Hill Road. At that time, one Allen Byran Healy lost control of a motor vehicle he was operating on the Road and struck Parker, injuring her.
Subsequently, Parker filed a personal injury action against Healy seeking recovery in damages as the result of his wrongful conduct. The vehicle operated by Healy was underinsured.
Later, appellant United States Fire Insurance Company filed the present declaratory judgment suit naming Parker a defendant, among others. The insurer had issued a "Business Auto Policy" covering the Ford's Colony pickup truck that had been driven by Parker to the site where she was working at the time of the injury. This liability policy provided underinsurance motorist coverage in accordance with Code § 38.2-2206, the uninsured motorist statute. Asserting that Parker claimed underinsured coverage under its policy, the insurer asked the trial court to declare that the policy did not provide such coverage for Parker in her claim against Healy.
As pertinent, Code § 38.2-2206 provides that no policy of bodily injury or property damage liability insurance "relating to the ownership, maintenance, or use of a motor vehicle" shall be issued in the Commonwealth unless it contains provisions undertaking to
pay "the insured all sums that he is legally entitled to recover as damages" from the operator of an uninsured or underinsured motor vehicle. Code § 38.2-2206(B) defines the term "insured" as "any person who uses the motor vehicle to which the policy applies, with the expressed or implied consent of the named insured."
Following an evidentiary hearing, the trial court ruled in favor of Parker. We awarded the insurer this appeal from the September 1994 order declaring that the insurer must provide underinsured motorist coverage in the event Parker obtains a judgment in excess of $25,000, the amount of Healy's coverage.
The facts are not in dispute. On the day in question, Parker and her co-workers used the Ford's Colony pickup truck, with Parker driving, to carry them and the cabbages to the worksite and to transport a rake, trowel, and shovels they needed to perform the task of planting the cabbages. A two-way radio was installed in the truck; they were required to leave the radio "on" at all times enabling them to receive messages from their supervisor.
At the site, the trio worked as a team performing specific tasks directed by Parker. She was to dig holes for the plants, another worker unloaded the cabbages, and the third worker planted the cabbages.
Although not directed to do so by their supervisor, they parked the truck at the site in such a position as to provide a "safety barrier" to protect them from speeding motorists. They left a door of the truck open while planting the cabbages so they could hear the radio.
At the time of the accident, Healy's speeding vehicle left the paved portion of the Road, struck the truck, and then struck Parker as she was
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