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Erie Insurance Co. v. Jones9/16/1994
OPINION BY SENIOR JUSTICE RICHARD H. POFF
We awarded this appeal to consider whether the trial court erred in ruling that two automobile liability insurance companies are contractually bound to provide uninsured motorist (UM) coverage in a wrongful death tort action.
The trial court based its decision upon a stipulation of facts and upon six exhibits, including a transcript of the trial of a criminal conviction related to the death, all of which are parts of the record before us. The record shows that Ronnie Dale Tyree (Tyree), his wife, Lisa Tyree, and their young son were en route to a fastfood restaurant in a truck owned by Paul A. McNeil and Lisa's mother, Carol D. McNeil. It is unclear from the record who was driving the truck when it stopped at a controlled intersection of two public roads.
Following closely behind the truck was an automobile owned by Patsy J. Banks and driven by Michael Randall Banks. With its
headlights repeatedly raised and lowered, the car came to a sudden stop immediately behind and possibly in physical contact with the truck. Tyree got out of the truck and, while standing on the driver's side, removed a rifle stored behind the seat and walked back to the car. As he was tapping the barrel of the rifle on the window, the rifle discharged. Shattered glass struck and injured Michael Banks, and two fragments of the bullet struck and killed Jill Marie West (West), a passenger in the back seat of the car.
Tyree was tried and convicted of involuntary manslaughter. Connie West Jones, West's mother and administratrix of her estate (Jones), filed a wrongful death action against Tyree.
The car in which West was riding was insured by Erie Insurance Company Exchange (Erie). Nationwide Mutual Insurance Company (Nationwide) maintained a motor vehicle insurance policy on a vehicle owned by West's mother. West was an insured person under both policies. Although the McNeils maintained an insurance policy on their truck, they failed to give their insurer the notice required by the policy and, for purposes of the wrongful death claim, the truck became an uninsured motor vehicle.
Erie and Nationwide, served with process under Code ยง 38.2-2206(F), filed a petition for declaratory judgment against Jones and Michael Banks. The insurers asked the court to declare that their policies did not afford uninsured or underinsured motorist coverage to West or to Banks.
Jones filed a response. Banks did not make an appearance. In a final order entered August 23, 1993, the trial court ruled that the wrongful death arose out of the ownership, maintenance, or use of the truck and that the two liability insurance policies "afford . . . coverage . . . as a result of the accident." We awarded the insurers a joint appeal.
The single issue framed on appeal is whether the insurance carriers are bound by their contracts to provide UM coverage in the pending tort action. We look first to the language of the policies. In the Nationwide contract, the insurer agreed to pay its insured damages "caused by accident arising out of the ownership, maintenance or use of uninsured motor vehicle." The Erie contract contained a substantially equivalent covenant.
In defense of the trial court's ruling, Jones argues on brief that "this entire accident centered around two vehicles and clearly they were being used by both Tyree and Jill West at the time of this accident." "Both of these vehicles were in use," she says, and
consequently
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