Tort Law

Brien Roche

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Uninsured Motorist-Coverage.

2012 AES Corporation v. Steadfast Insurance Company, 283 Va. 609, 725 S.E.2d 532.
Intentional release of large amount of greenhouse gasses in the course of energy production and distribution business did not allege an occurrence to invoke coverage as to this general liability policy.

2011 AES Corp. v. Steadfast Ins. Co., 282 Va. 252, 715 S.E.2d 28.
In this declaratory judgment action, insured alleged it was covered under liability policy for claim asserting damages to an Alaskan village caused by global warming attributable to the insured’s intentional release of large amounts of greenhouse gases. This did not constitute an occurrence.

2007 Doe v. Terry, 273 Va. 3, 639 S.E.2d 197.

VDOT employee was injured while working in a large tunnel and was hit by something that struck his head rendering him unconscious and causing him to fall. Prior to his fall he had noticed a vehicle approaching. He never saw anything come from that vehicle and did not know what actually struck him. Evidence was insufficient to establish that an unknown driver threw an object and therefore judgment entered in favor of the UM carrier.

2004 Dyer v. Dairyland Ins. Co., 267 Va. 726, 594 S.E.2d 592.

In this automobile accident case, issue was whether plaintiff could first recover under liability provision of auto policy based upon negligence of one tortfeasor and then also recover under the uninsured motorist provision of the same policy for the negligence of a joint tortfeasor. The court answered that question in the affirmative. Plaintiff was passenger on a motorcycle. Driver of that motorcycle and other vehicle were both joint tortfeasors. Both tortfeasors offered their liability limits. Liability limits of her vehicle were $100,000 and liability limits of other vehicle was $25,000. Plaintiff asserted that she was under insured as to other vehicle by amount of $75,000. Supreme court agreed. As such, plaintiff was entitled to recover $25,000 from other motorist under liability policy, $100,000 under liability of her driver plus $75,000 from under insured policy of her driver for total recovery of $200,000.

2004 Slagle v. Hartford Ins. Co., 267 Va. 629, 594 S.E.2d 582.

Plaintiff sued for coverage under uninsured motorist policy relating to tractor trailer. Tractor trailer was being backed up by driver while plaintiff was assisting driver by giving signals to driver from outside of vehicle. As such, plaintiff was not occupying and did not intend to occupy the tractor trailer. This activity by plaintiff did constitute use of the vehicle as contemplated by Code § 38.2-2206(B).

2001 Allstate Ins. Co. v. Jones, 261 Va. 449, 544 S.E.2d 320.

Insurance carrier denied coverage to driver of vehicle due to lack of cooperation. Passenger in that vehicle thereby became entitled to uninsured motorists coverage. It did not matter that the uninsured motorists endorsement defined insured as excluding persons occupying insured motor vehicles and that the car was an uninsured motor vehicle in this instance.

1999 Superior Ins. Co. v. Hunter, 258 Va. 338, 520 S.E.2d 646.

Underinsured motorist provision of tortfeasor’s automobile liability insurance policy is not available to satisfy claims of passengers who are insured under same policy where their claims exceed limits of policy’s liability coverage. In construing Va. Code § 38.2-2206 where only one insurance policy is involved, General Assembly did not intend that vehicle could be underinsured with respect to itself. This code section gives insurers right of subrogation allowing them to recover any payments made under uninsured or underinsured motorist provision from tortfeasor. In this instance, if plaintiff were allowed to recover from underinsured provision of policy, then Superior could subrogate against its own insured. General Assembly did not intend such result.

1999 Welch v. Miller & Long Co. of Md., 258 Va. 447, 521 S.E.2d 767.

Plaintiff’s decedent in this wrongful death action attempted to sue statutory employer and to recover uninsured motorist benefits. Exclusive remedy of workers compensation act bars any such uninsured motorist claim.

1998 Newman v. Erie Ins. Exch., 256 Va. 501, 507 S.E.2d 348.

Student was using school bus as vehicle at time he was injured based upon his use of specialized safety equipment and his immediate intent to become passenger in bus. In this instance he was hit on roadway by other vehicle. These facts established required causal relationship between accident and student’s use of bus as vehicle. Plaintiff entitled to uninsured/underinsured coverage of school board.

1998 Catron v. State Farm Mut. Auto. Ins. Co., 255 Va. 31, 496 S.E.2d 436.

Catron at time of automobile accident was employee of Roanoke County and was injured when County vehicle he was operating collided with vehicle operated by Layman. Layman was insured under policy issued by Rockingham Casualty Company with limits of $100,000.00. Catron was named insured under policy issued by State Farm with uninsured limits of $100,000.00. In this declaratory action court declared Layman was underinsured since County’s policy of $25,000.00 plus $100,000.00 from State Farm made total available underinsured coverage $125,000.00. State Farm’s $100,000.00 stacked on top of County’s $25,000.00, meaning that State Farm would have to pay up to $25,000.00 for any judgment over $100,000.00. Court discussed potential conflict between Va. Code §§ 38.2-2206 and 46.2-368.

1997 Trisvan v. Agway Ins. Co., 254 Va. 416, 492 S.E.2d 628.

Uninsured motorist coverage in tortfeasor’s insurance policy would not be afforded to passengers to that vehicle in single vehicle accident when determining extent to which tortfeasor’s motor vehicle is underinsured. In this case, tortfeasor’s vehicle had policy limits of $25,000.00 and passenger had uninsured motorist coverage of $100,000.00. Passenger entitled to receive $25,000.00 from tortfeasor plus $75,000.00 from his uninsured motorist carrier.

1996 Stone v. Liberty Mut. Ins. Co., 253 Va. 12, 478 S.E.2d 883.

Employer’s insurance policy did not cover employee driving his own car while delivering pizzas so as to make employee an insured under uninsured motorist endorsement of employer’s policy.

1995 United States Fire Ins. Co. v. Parker, 250 Va. 374, 463 S.E.2d 464.

Gardener was at gate digging hole twelve to fifteen feet away from truck when motorist struck gardener. No uninsured motorist coverage.

1994 Virginia Mun. Liab. Pool v. Kennon, 247 Va. 254, 441 S.E.2d 8.

In absence of resolution adopted by Virginia Municipal Liability Pool, trial court erred in holding that uninsured motorist coverage was subject to provisions of § 38.2-2206.

1994 Hackett v. Arlington Co., 247 Va. 41, 439 S.E.2d 348.

Police officer while in pursuit of motorist is struck by motorist. Coverage on motorists vehicle is $100,000.00. Employer of officer is self-insured and under Code § 46.2-368 is required to maintain both uninsured coverage and underinsured coverage. The County therefore is liable for judgment in excess of defendant’s policy limits.

1994 Nationwide Mut. Ins. v. Hill, 247 Va. 78, 439 S.E.2d 335.

Court held that under plain language of policy, permissive user of vehicle was insured under the uninsured motorist endorsement of policy. In addition, the set-off provision of uninsured motorist endorsement are void as against public policy and contrary to the uninsured motorist statute.

1993 Buchanan v. Doe, 246 Va. 67, 431 S.E.2d 289.

Plaintiff was insured under policy issued in State of Virginia providing uninsured motorist coverage. Auto accident occurred in West Virginia. Accident involved no contact. Issue was whether or not West Virginia’s “no contact provision” of Uninsured Motorists Law applied or whether Virginia law applied. Court held that since policy was issued and delivered in Virginia where plaintiff resided, it is governed by Virginia law and therefore West Virginia proof of contact requirement is inapplicable.

1992 State Farm Mut. Auto. Ins. Co. v. Clatterbuck, 244 Va. 214, 421 S.E.2d 406.

Stolen vehicle damaged in accident by unknown thief. Insured was paid by insurer for cost of repairs and expense of rental car. Insured then sued “John Doe,” seeking recovery for property damage under uninsured motorist coverage. Vehicle not insured under uninsured motorist coverage since driven by non-permissive user.

1992 Dale v. City of Newport News, 243 Va. 48, 412 S.E.2d 701.

Plaintiff injured while operating vehicle owned by city. Other driver uninsured. Verdict for $550,000. City self-insured. When city elected to be self-insured it did not limit its coverage, therefore, there are no limits. City is liable for amount in excess of plaintiff’ s uninsured motorist coverage.

1991 Virginia Farm Bur. Ins. v. The Travelers Indem. Co., 242 Va. 203, 408 S.E.2d 898.

Negligent driver was covered by policy in amount of fifty thousand dollars. Another policy provided thirty thousand dollars of uninsured motorist coverage to plaintiff as passenger in vehicle. Third policy provided fifty thousand dollars of uninsured coverage to plaintiff for vehicle of his own. As such total available liability coverage is fifty thousand. Total available uninsured motorist coverage is eighty thousand and therefore plaintiff was underinsured in amount of thirty thousand. Court held that under interpretation of 1987 statute, company issuing thirty thousand dollar policy should receive no part of credit, since it was primary underinsured motorist carrier.

1991 Dairyland Ins. v. Silva, 242 Va. 191, 409 S.E.2d 127.

Allstate insured other motorist against liability for bodily injury in amount of twenty-five thousand dollars. Dairyland provided twenty-five thousand dollars uninsured motorist coverage to Silva while operating his motorcycle. Allstate provided identical amount of coverage to Silva as named insured in policy issued to Silva’s wife. Dairyland entitled to first credit in the full amount of their policy under terms of Va. Code § 38.2-2206(B).

1990 William v. City of Newport News, 240 Va. 425, 397 S.E.2d 813.

Trial court’s holding that self-insured city had no obligation to its employee under uninsured motorist provisions of Code and that its obligation to him was limited to workers’ compensation payments is reversed and case remanded for further proceedings.

1990 Great Am. Ins. Co. v. Cassell, 239 Va. 421, 389 S.E.2d 476.

Firefighter killed while making fire report and standing near fire truck on city street. Death arose out of use of fire truck, and uninsured motorist provision of city’s policy applies.

1989 State Farm Mut. Auto. Ins. v. Kelly, 238 Va. 192, 380 S.E.2d 654.

State Farm was uninsured motorist carrier for Kelly. Kelly was treated for his injury in military hospital. Prior to trial, State Farm paid U.S. Government for cost of Kelly’s treatment. Judgment is event which determines legal entitlement to recovery. After judgment, State Farm was only willing to pay policy limits minus amount paid to U.S. Government since this payment was made prior to judgment. State Farm had no legal basis for not paying Kelly full amount of policy.

1989 Colonial Ins. v. Rainey, 237 Va. 270, 377 S.E.2d 393.

Plaintiff was operator of vehicle. Augustin had been operating uninsured vehicle which had flat tire. He removed tire and was walking to service station with tire when he dropped tire and it rolled into street striking plaintiff’s vehicle. Uninsured motorist coverage applies here.

1989 Hill v. State Farm Mut. Auto. Ins., 237 Va. 148, 375 S.E.2d 727.

A moped under the terms of this insurance policy is motor vehicle. Uninsured motorist coverage applies. In this case policy provided coverage broader than required by statute; therefore statutory language need not be read into policy.

1989 Furrow v. State Farm Mut., 237 Va. 77, 375 S.E.2d 738.

Trial court found that decedent was visitor and sojourner in her mother’s home in transition from shared residence with one man to shared residence with another. As such decedent was not resident in household of insured. Therefore no uninsured motorist coverage.

1988 Aetna Cas. & Sur. Co. v. Dodson, 235 Va. 346, 367 S.E.2d 505.

Insured estate cannot recover under UM policy where insured was killed in work related accident covered by Workers’ Compensation Act.

1988 Nationwide Mut. Ins. Co. v. Scott, 234 Va. 573, 363 S.E.2d 703.

Scott injured as result of two-car collision. Vehicle driven by Bowers had limits of $50,000. Vehicle driven by Truman had limits of $25,000. Scott had underinsured limits of $100,000. Scott argued that her carrier owed her $50,000 as to Bowers and $75,000 as to Truman; i.e., her policy limits were to be viewed separately as to each defendant up to limits of her policy rather than as aggregate. Supreme Court agreed. Therefore, Scott entitled to $100,000 from UM carrier, which was her limit of coverage.

1986 GEICO v. Universal Ins. Co., 232 Va. 326, 350 S.E.2d 612.

Dispute as to which uninsured motorist coverage was primary: garage keeper’s or driver’s. Court held that driver’s policy was primary.

1981 Goodville Mut. Cas. Co. v. Borror, 221 Va. 967, 275 S.E.2d 625.

Stacking of uninsured motorist coverage will be permitted unless clearly disallowed by policy.

1980 Bayer v. Travelers’ Indem. Co., 221 Va. 5, 267 S.E.2d 91.

Plaintiff is passenger in his own uninsured vehicle which collides with another uninsured motorist. Operator of plaintiff’s vehicle owns two vehicles with uninsured motorist coverage. Plaintiff not entitled to coverage under those policies. Uninsured motorist coverage is intended to protect insured motorist, his family and permissive users against uninsured motorist.

1976 Tudor & Harmon v. Allstate Ins. Co., 216 Va. 918, 224 S.E.2d 156.

Insurance company for tortfeasor settled all claims arising out of accident and exhausted policy limits. Claimants then sued tortfeasor and recovered judgments in excess of policy limits and argued that their uninsured motorist carriers should pay judgments. Held: tortfeasor was not uninsured motorist.

1975 Nationwide Mut. Ins. Co. v. Finley, 215 Va. 700, 214 S.E.2d 129.

Insurer providing uninsured motorist coverage not liable for court costs incurred by its insured in recovering judgment against uninsured tortfeasor. However, interest is not subject to monetary ceiling on uninsured motorist coverage.

1973 Nationwide Mut. Ins. Co. v. Clark, 213 Va. 666, 194 S.E.2d 699.

Unknown uninsured motorist case; plaintiff failed to have written report of collision filed as required by uninsured motorist statute. Requirement was mandatory and established condition precedent. Error to enter judgment against insurance company.

1973 John Doe v. Houser, 213 Va. 617, 194 S.E.2d 754.

Plaintiff rear-ended by unknown uninsured motorist. Plaintiff had burden to prove that unknown motorist was present and that his negligence was cause of accident. Evidence of negligence and causation insufficient.

1972 Lipscombe v. Security Ins. Co., 213 Va. 81, 189 S.E.2d 320.

Uninsured motorist coverage designed to protect persons not vehicles. Statute, which provides for recovery of all sums legally due, covers punitive damages as well as compensatory damages. Insurance carrier subrogated and may seek recovery from uninsured motorist.

1971 Doe v. Wolfe, 212 Va. 130, 183 S.E.2d 166.

Plaintiff testified that phantom vehicle forced him off road. There was nothing incredible about this testimony and thus prima facie case made out.

1971 Fidelity & Cas. Co. v. Futrell, 211 Va. 751, 180 S.E.2d 502.

Uninsured motorist coverage; by express terms employee exclusion in policy did not apply to uninsured motorist coverage. Employee entitled to recovery under uninsured motorist coverage.

1970 Grossman v. Glen Falls Ins. Co., 211 Va. 195, 176 S.E.2d 318.

Uninsured motorist case wherein defendant’s insurance company defended action but was later found to be insolvent and unable to satisfy judgment. To be insured means more than ownership of contract of insurance; insurance company must be in financial position to pay recovery within its policy limits. Uninsured motorist law is remedial and is to be liberally construed.

1970 State Farm Mut. Auto. Ins. Co. v. USAA, 211 Va. 133, 176 S.E.2d 327.

Three uninsured motorist policies covered same accident; each had provision that while occupying nonowned automobile, such coverage was excess insurance over similar insurance available. Such provision is not in conflict with Code requirements. Primary coverage is on vehicle involved in collision and other two policies held by secondary carriers share excess equally.

1970 Shelton v. American Re-Ins. Co., 210 Va. 655, 173 S.E.2d 820.

Self insured person is excluded from uninsured motorist coverage provided by statute.

1970 Haymore v. Brizendine, 210 Va. 578, 172 S.E.2d 774.

To support action against John Doe, plaintiff must prove he existed and is unknown. Where plaintiff has offered evidence that vehicle was driven by unknown person, it is incumbent on defendant to bring forth evidence that he was known. Mere fact that plaintiff recognized car insufficient.

1970 Lumpkin v. Doe, 210 Va. 571, 172 S.E.2d 790.

Bicyclist sued John Doe operator of phantom vehicle that allegedly struck him. Verdict for plaintiff.

1970 Criterion Ins. Co. v. Grange Mut. Ins. Co., 210 Va. 446, 171 S.E.2d 669.

Declaratory judgment action may be maintained by injured party’s uninsured motorist carrier against tortfeasor’s carrier who has denied coverage.

1970 Motley v. Doe, 210 Va. 428, 171 S.E.2d 818.

Plaintiff sued John Doe operator of phantom vehicle that caused him to go off road. Verdict for plaintiff.

1969 Rose v. Travelers Indem. Co., 209 Va. 775, 167 S.E.2d 339.

Policy issued on vehicle to be principally garaged in District of Columbia; Virginia uninsured motorist statute not applicable.

1968 Bobbitt v. Shelby Mut. Ins. Co., 209 Va. 37, 161 S.E.2d 671.

Plaintiff’s vehicle struck by uninsured motorist. Motors Insurance Corporation had collision coverage on plaintiff’s vehicle; Shelby Insurance Company had liability and uninsured motorist coverage. Motors cannot recover under Shelby policy by way of subrogation. Collision carrier assumed risk and received premium. Policy does not insure uninsured motorist against liability, it insures assured against inadequate compensation.

1967 General Acc. v. Aetna, 208 Va. 467, 158 S.E.2d 750.

General Accident was uninsured motorist carrier who paid amount of judgment awarded its insured against uninsured motorist. General Accident then sued Aetna, carrier for allegedly uninsured motorist, in subrogation action. Held: action against Aetna not allowed by statute.

1967 John Doe v. Simmers, 207 Va. 956, 154 S.E.2d 146.

John Doe action: plaintiff forced off road and into ditch. Motorist unknown to her. Jury instructions as to plaintiff’s burden is discussed.

1967 Allstate Ins. Co. v. Meeks, 207 Va. 897, 151 S.E.2d 222.

Plaintiff suffered injuries while driving uninsured vehicle owned by him. Defendant, insured motorist, caused accident. Plaintiff recovered judgment and under policy of uninsured motorist insurance on second car owned by him, plaintiff sought recovery from his insurer. Plaintiff had coverage because statute calls for coverage while in insured vehicle or otherwise.

1967 Aetna Cas. & Sur. Co. v. Kellam, 207 Va. 736, 152 S.E.2d 287.

Plaintiff and defendant co-employees involved in auto accident on job. Policy on auto of employer properly excluded plaintiff from coverage since he had worker’s compensation coverage.

1966 Pennsylvania Nat’l Mut. Cas. Ins. Co. v. Bristow, 207 Va. 381, 150 S.E.2d 125.

Uninsured motorist case; plaintiff injured when leaning over vehicle to check wiring, vehicle struck in rear by defendant. “Occupying” defined by policy as “in or upon or entering into or alighting from.” Plaintiff held not to be occupying vehicle in question.

1966 United States Fid. & Guar. Co. v. Byrum, 206 Va. 815, 146 S.E.2d 246.

Vehicle was held to be insured and as such there was no liability on part of uninsured motorist carrier.

1965 McDaniel v. State Farm Mut., 205 Va. 815, 139 S.E.2d 806.

Denial of coverage makes tortfeasor uninsured motorist even if denial occurs after suit filed. Service on uninsured motorist carrier quashed. Quashing of process simply left carrier free not to participate in action.

1964 Nationwide Mut. Ins. Co. v. Sours, 205 Va. 602, 139 S.E.2d 51.

Statutory requirement of filing report of accident with D.M.V. was met even though report not actually filed by plaintiff. Virginia Code contains exclusive terms and obligation for uninsured motorist coverage and policy may not alter.

1964 State Farm Mut. v. Brower, 204 Va. 887, 134 S.E.2d 277.

Judgment defendant’s insurance company went bankrupt and thus never provided defense. Judgment plaintiff’s carrier denied uninsured motorist coverage since defendant’s carrier had never actually denied coverage. Held: there was effective denial of coverage.

1964 INA v. Perry, 204 Va. 833, 134 S.E.2d 418.

Police officer serving warrant struck by uninsured motorist. Since city is only named insured, no coverage for officer.

1964 Yellow Cab Co. v. Adinolfi, 204 Va. 815, 134 S.E.2d 308.

Plaintiff was employer of self-insured company and was injured by self-insured motorist. Although plaintiff’s claim was not barred by Workers’ Compensation Act, his employer as self-insurer was not required to provide protection for damages resulting from negligence of uninsured motorist.

1963 Drewry v. State Farm, 204 Va. 231, 129 S.E.2d 681.

Plaintiff recovered judgment against two uninsured motorists. Uninsured motorists had been racing and, in two separate but nearly simultaneous collisions, struck plaintiff. Plaintiff argued there were two accidents and therefore double coverage. Court ruled that there would be only one recovery for one accident. It is not purpose of uninsured motorist law to provide coverage for uninsured vehicle, but its object is to afford insured additional protection in event of accident.

1963 Rodgers v. Danko, 204 Va. 140, 129 S.E.2d 828.

Plaintiff obtained judgment against uninsured motorist. Uninsured motorist carrier was served with suit papers. Carrier’s motion to quash was denied on ground that even though policy was issued in New York it covered accidents in Virginia. Insurance company now appeals. Insurance company was not named party defendant and therefore has no right of appeal. To resolve issue of coverage judgment plaintiff may bring action or carrier may file for declaratory judgment.

1962 Hodgson v. Doe, 203 Va. 938, 128 S.E.2d 444.

Uninsured motorist endorsement applies even if accident outside of Virginia. Report of accident to D.M.V. not prerequisite when action is against John Doe only and not insurance company.

1962 Nationwide Mut. Ins. v. Harleysville Mut. Co., 203 Va. 600, 125 S.E.2d 840.

Driver of auto covered by Harleysville was not permissive user. Uninsured motorist coverage not applicable.

1962 Mangus v. Doe, 203 Va. 518, 125 S.E.2d 166.

Plaintiff rear-ended. Both drivers talked and then departed since no property damage. Later plaintiff developed symptoms. Uninsured motorist action is proper. No requirement that plaintiff exercise due diligence to identify other motorist.

1962 Horne v. Superior Life Ins. Co., 203 Va. 282, 123 S.E.2d 401.

Plaintiff injured in course of employment in vehicle. Plaintiff compensated by uninsured motorist carrier. Employer has no subrogation right to uninsured motorist recovery. Plaintiff may recover from both uninsured motorist carrier and worker’s compensation carrier.

For more information on traffic collisions see the pages on Wikipedia.