Opinion
C.A. No. 99C-04-002-RFS.
Submitted: September 2, 2003.
Decided: November 4, 2003.
Clayton E. Bunting, Esquire, Georgetown, Delaware.
Robert B. Young, Esquire, Dover, Delaware.
David L. Baumberger, Esquire, Wilmington, Delaware.
Kenneth M. Doss, Esquire, Wilmington, Delaware.
Dear Counsel:
This is my decision on Third-Party Defendant, Commercial Union Insurance Company's ("Commercial Union") Motion for Summary Judgment and Plaintiffs, Wayne Carroll Reese ("Reese") and Ramona G. Reese's Cross Motion for Summary Judgment. Third-Party Defendant's motion is denied and Plaintiffs' motion is granted for the reasons set forth herein.
STATEMENT OF THE CASE
On April 4, 1997, Wayne Reese, a truck driver for N.M. Corbin, Inc. was injured when a Yard Dog roll-off jockey truck ("Yard Dog") driven by Roy Wheeler ("Wheeler") ran into him on the loading docks of the Draper-King Cole ("Draper") plant in Milton, Delaware. Plaintiffs Wayne and Ramona Reese brought suit against Wheeler, Kaye Trucking Leasing Company ("Kaye Trucking"), Draper Canning Company and Draper-King Cole, Inc. in April, 1999. Default judgment was obtained against Wheeler and Kaye Trucking on April 7 and March 3 of 2000, respectively. Commercial Union Insurance, N.M. Corbin, Inc.'s insurer, and State Farm, Reese's insurer, were joined as Third-Party Defendants on Draper's motion for indemnification and contribution pursuant to their uninsured and underinsured motorist ("UM/UIM") coverage. The insurers were originally included in the suit only for notice purposes. Commercial Union made this Motion for Summary Judgment, and Plaintiffs answered with a cross Motion for Summary Judgment.
A Yard Dog is a vehicle used to move trailers. It was not used on public roads and was not registered or licensed with the Department of Motor Vehicles to be operated on public roads.
On the date of the accident, Wayne Reese arrived at the Draper-King Cole plant with a tractor trailer full of carrots. After backing his truck into the loading dock, Reese exited it, leaving the engine running and the door open. He walked over to some Draper employees in order to find out if the truck was properly positioned in the dock. After seeing that it was in the right place and that Draper employees had begun to unload it, and while on his way back to the truck, Reese was struck and injured by the Yard Dog jockey truck. The Yard Dog was driven by Roy Wheeler, a driver for Kaye Trucking Leasing Company. Although it was owned by Draper, Wheeler was operating it without Draper's permission.
Roy Wheeler has since disappeared, and Kaye Trucking has gone out of business. Concerning insurance, Defendant Draper claims that St. Paul Fire Marine Insurance Company ("St. Paul") initially insured Wheeler and Kaye Trucking. Plaintiffs state that Wheeler and Kay Trucking are uninsured "as to all matters set forth in the Complaint." According to Draper, St. Paul has declined coverage. This was confirmed in a letter, dated December 23, 2002, from Northbrook Property and Casualty Insurance Company which denies coverage on behalf of St. Paul. (Plaintiff's Answering Brief, App. 1.) Thus, Wheeler and Kaye Trucking are uninsured as to this matter.
Commercial Union's UM/UIM policy provides:
D. Who is Insured
1. "You" or any "family member."
2. Anyone else "occupying" a "covered auto" or a temporary substitute for a "covered auto." The "covered auto" must be out of service because of its breakdown, repair, servicing, "loss" or destruction.
3. Anyone for damages he or she is entitled to recover because of "bodily injury" sustained by another "insured."
The policy further provides:
"Family member" means a person related to you by blood, marriage or adoption who is a resident of "your" household, including a ward or foster child. "Occupying" means in, upon, getting in, on, out or off. "Uninsured motor vehicle" means a land motor vehicle or trailer;
a. For which neither a liability bond or policy nor cash or securities on file with the Virginia Commission of Motor Vehicles at the time of an "accident" provides at least the amounts required by the Virginia Motor Vehicle Safety Responsibility Act; . . .
c. For which an insuring or bonding company denies coverage or is or becomes insolvent; . . .
ISSUES PRESENTED
1. Should summary judgment be granted in favor of Third-Party Defendant, Commercial Union Insurance Company, on the basis that Wayne Reese is not covered in N.M. Corbin, Inc.'s Uninsured Motorist coverage?2. Should summary judgment be granted in favor of Plaintiffs, Wayne and Ramona Reese, on the basis that Wayne Reese is covered by the policy?
DISCUSSION
A. Standard of Review
This Court will grant summary judgment only when no material issues of fact exist, and the moving party bears the burden of establishing the nonexistence of material issues of fact. Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979). Once the moving party meets its burden, the burden shifts to the nonmoving party to establish the existence of material issues of fact. Id. at 681. The Court views the evidence in a light most favorable to the nonmoving party. Id. at 680.
Where the moving party produces an affidavit or other evidence sufficient under Superior Court Civil Rule 56 in support of its motion and the burden shifts, the nonmoving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial. Super. Ct. Civ. R. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). When cross motions for summary judgment are filed, "the parties implicitly concede the absence of material factual disputes and acknowledge the sufficiency of the record to support their respective motions." Merrill v. Crothall-American, Inc., 606 A.2d 96, 100 (Del. 1992). If material issues of fact exist or if the Court determines that it does not have sufficient facts to enable it to apply the law to the facts before it, then summary judgment is inappropriate. Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962).
B. Choice of Law
1. Right to contribution and indemnification
A question arises as to whether Virginia or Delaware law applies to the claims of contribution and indemnification. Under Virginia law, one tortfeasor does not have a right of contribution from the UM/UIM insurer of the injured party. See Hall v. Hickman, 1987 WL 17176 (Del.Super.Ct.), citing, Harleysville Mut. Ins. Co. v. Nationwide Mut. Ins. Co., 605 F. Supp. 133 (W.D.Va. 1985), aff'd in part and rev'd in part by 789 F.2d 272 (4th Cir. 1986). Under Delaware law, a tortfeasor does have a right of contribution from the injured party's UM/UIM insurer. See Hall, 1987 WL 17176. Because this is an issue relating to the damages and liability arising from the tort, Delaware Courts apply the law of the state where the injury took place, unless another state has a more significant relationship to the issue in question. Restatement (Second) of Conflicts § 146 (1971). See Travelers Indemnity Co. v. Lake, 594 A.2d 38, 47 (Del. 1991). To determine which state has priority, the Courts apply the most significant relationship test as laid out in the Restatement (Second) of Conflicts § 145(1) (1971).
In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.
(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred
(b) the place where the conduct causing the injury occurred
(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and
(d) the place where the relationship, if any, between the parties is centered.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.
In this case, the injury and the conduct causing the injury took place in Delaware. Draper Company and Draper-King Cole, Inc. are Delaware Corporations. These facts tip the scales in favor of the application of Delaware law, although Virginia also has significant connections to this case. The insurance policy is a Virginia policy, created in Virginia for a Virginia corporation. Wayne Reese is a Virginia resident. In situations such as this one in which each state's relationship involves competing interests, the Courts also take into consideration certain other factors, including the policy of the forum state, other interested states' policies and the expectations of the parties. Restatement (Second) of Conflicts § 6 (1971).
(2) . . . the factors relevant to the choice of the applicable rule of law include
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
In this regard, Delaware policy favors recovery by injured parties and disapproves of any limitations placed on recovery. See Marks v. Messick Gray Construction, Inc., 2000 WL 703657 (Del.Super.Ct.) (applying Delaware law in part because Maryland law provided for a cap on noneconomic damages). This includes the adjustment of damages between responsible parties. Since application of Virginia law would contravene this important policy of Delaware, in which Draper, as a corporate citizen, has an interest, this Court will apply Delaware law to the issue of contribution and indemnification. Thus, as a preliminary issue, Defendant's claim of direct contribution is not barred.
2. Interpretation of the insurance policy
Delaware applies the "most significant relationship" test for choice of law issues in a contract case. Oliver B. Cannon Son, Inc. v. Dorr-Oliver, Inc., 394 A.2d 1160, 1166 (Del. 1978). An action to ascertain the scope of uninsured motorist benefits in a policy is an action in contract, not in tort. Allstate Ins. Co. v. Spinelli, 443 A.2d 1286, 1287 (Del. 1981). Although in Traveler's Indemnity Co. v. Lake, 594 A.2d 38 (1991), the Supreme Court applied the torts choice of law test, Restatement (Second) of Conflict of Laws § 145, to determine limits on the amount of damages recoverable under the UM/UIM policy, the contracts test still applies when interpreting the language in a policy to determine whether a claimant is covered. The relevant test is the "most significant relationship" test as laid out in the Restatement (Second) of Conflict of Laws § 188 (1971). Oliver B. Cannon Son, Inc., 394 A.2d at 1166 (Del. 1978). See also Travelers Indemnity Co. v. Lake, 594 A.2d 38 (Del. 1991). The Court's interpretation of an insurance policy is a matter of law. Nat'l Union Fire Ins. Co. v. Fisher, 692 A.2d 892 (Del. 1997); Universal Underwriters Ins. Co. v. The Travelers Ins. Co., 669 A.2d 45, 47 (Del. 1995).
(2) In the absence of an effective choice of law by the parties (see § 187), the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place of contracting,
(b) the place of negotiation of the contract,
(c) the place of performance,
(d) the location of the subject matter of the contract, and
(e) the domicil, residence, nationality, place of incorporation and place of business of the parties.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.
(3) If the place of negotiating the contact and the place of performance are in the same state, the local law of this state will usually be applied, except as otherwise provided in §§ 189-199 and 203.
This case involves a Virginia policy issued in Virginia to a Virginia Corporation. The covered truck has Virginia plates, and the driver, Reese, is licensed in and lives in Virginia. The only connection this issue has to Delaware is that the accident occurred in Delaware. While the contract itself does not have a choice of law clause governing the whole contract, it refers several times to Virginia law, stating for example that recovery will be in accordance with Virginia Uninsured Motorists Law. The Court will apply Virginia law in the interpretation of this policy.
The defendant, Roy Wheeler, is an Indiana resident, and the defendants Draper Company and Draper-King Cole, Inc., are Delaware corporations. Kaye Trucking, Inc., is an Ohio corporation. The location of these defendants is inapposite to the issue of whether Reese is covered under the UM/UIM policy, and it is not considered for the purposes of resolving this conflict of law.
B. WE WILL PAY
1. "We" will pay in accordance with the Virginia Uninsured Motorists Insurance Law all sums the "insured" is legally entitled to recover as damages from the owner or driver of an "uninsured motor vehicle. . . ."
2. If this insurance provides a limit in excess of the amounts required by the Virginia Motor Vehicle Safety Responsibility Act, "we" will pay only after all liability bonds or policies have been exhausted by judgments or payments.
C. Application of Virginia Law: Who is Insured
1. "`You' or `any family member'"
Plaintiffs argue that Reese is a named insured under the policy because he was included in a Schedule of Drivers in the policy documentation and was not listed as an excluded driver. They point out that the definition of "insured" refers to "You" but does not mention that scheduled drivers be excluded from that designation. Usually, however, an employee or driver cannot be included in the definition of "insured" under the designation "You."
In this regard, cases considering this issue generally have dealt with whether a corporation reasonably expected its employees to be covered as a result of the ambiguity of the phrase "`[y]ou' or "any `family member'" (emphasis added). See, e.g., Fisher v. Nat'l Union Fire Ins. Co., 1997 WL 817893 aff'd by 719 A.2d 490 (Table), 1998 WL 665074 (Del.); Harleysville Mut. Ins. Co. v. Grzbowski, 2002 WL 1859193 (Del.Super.Ct.); Nationwide Mut. v. Hockessin Const., Inc., 1996 WL 453325 (Del.Super.Ct.); Great American Ins. Co. v. Cassell, 1988 WL 626029 (Va.Cir.Ct.) "You" is singular and refers to the owner of the vehicle, i.e. the individual or corporation listed on the title. See also Del Collo v. Houston, 1986 WL 5841, 3 (Del.Super.Ct.) ("It is clear under the policies that `you' refers to the corporation.") On the other hand, Reese would be a named insured if he is included under the language "any family member."
Only one Virginia Court has approached the issue of whether an employee could be a named insured under the theory that an employee is a "family member" of the corporation. The Circuit Court, in Great American Ins. Co. v. Cassell, 1988 WL 626029, 3 held that an employee of the City of Roanoke was not a "family member" because the parties could not have intended to extend the UM/UIM coverage to all 1,750 "family members" of the city. The Court pointed out that the dictionary definition of family is not limited to blood or marital relationships, stating, "[t]he term by common conception includes a `group of kindred persons' or `an association of people with common characteristics.'" Id. at 2. The Court also pointed out the imprudence of the insurance company's use of such "boilerplate" language:
Such careless, inappropriate and irresponsible language chosen by an insurance company and supposedly crafted by experts skilled in the profession of words and language should not be lightly cast aside nor interpreted as unintended surplusage. The excuse or justification that it was merely carried over as "boilerplate" language falls on unsympathetic ears. . . . Cassell's position on this point is not so far-fetched as Great American suggests.Id.
In this case, Merle Corbin, president of M.N. Corbin, Inc., provided an affidavit stating that he believed Wayne Reese was a named insured under the policy. Normally, a policy for an individual includes all family members unless they are specifically excluded from the policy. It is logical that, instead of excluding persons, as in an individual's policy, a corporation, likely to have any number of employees, would designate those drivers or "family members" to be covered. This idea is consistent with the listing of the ten drivers in the Schedule. Moreover, Virginia Courts interpret doubtful, ambiguous language in a policy to grant coverage rather than to withhold it. See Government Employees Ins. Co. v. Moore, 580 S.E.2d 823, 829 (Va. 2003), quoting, Granite State Ins. Co. v. Bottoms, 415 S.E.2d 131, 134 (Va. 1992).
Although this Court is not applying Delaware law, it is helpful to look to Delaware cases for guidance and to note that the result would be the same under Delaware law. Delaware Courts have consistently found language referring to any "family member" in corporate UM/UIM insurance policies to be ambiguous. See, e.g., Harleysville Mut. Ins. Co. v. Grzbowski, 2002 WL 1859193, 2 ("Delaware courts have held that business entities cannot sustain bodily injury or have family members. Thus, a commercial auto insurance policy which includes language referring to family members is ambiguous because familial relations cannot exist." (Citations omitted).) See also Fisher v. Nat'l Union Fire Ins. Co., 1997 WL 817893, aff'd by 719 A.2d 490 (Table), 1998 WL 665074 (Del.); Nationwide Mut. v. Hockessin Const., Inc., 1996 WL 453325 (Del.Super.Ct.). But see Del Collo v. Houston, 1986 WL 5841, 3 (Del.Super.Ct.) (finding reference to family members in insurance policy to be unambiguous and clearly inapplicable to a corporation). Ambiguous language is construed against the insurer and with the reasonable expectations of the insured. Nationwide Mut. v. Hockessin, 1996 WL 453325, 2 (Del.Super.Ct.).
In Fisher, Judge Quillen of the Superior Court found the language "[i]f you are an individual, any `family member'" in the definition of "insured" to be ambiguous. 1997 WL 817893, aff'd by 719 A.2d 490 (Table), 1998 WL 665074 (Del.) The named insured, New Castle County, said Judge Quillen, does not have families, therefore the language could be construed to cover the driver of a county vehicle. Id. at 4. He found that New Castle County could reasonably have expected to insure the users of its vehicles, but that they would only have reasonably expected employees authorized to drive the vehicles to be covered (as opposed to all of the Union members). Id.
In sum, the language, "`You' or any `family member'" under "Who is insured" is ambiguous. It makes no difference that the policy further defines "family member" as "a person related to you by blood, marriage or adoption who is a resident of `your' household, including a ward or foster child." See Cassell, 1988 WL 626029, 2. Since the ambiguity arises from the use of the language "family members" in a corporate policy, it does not ameliorate the ambiguity to further define it. The definition only makes the use of such language in a corporate policy more problematical. Given that a Schedule of Drivers was included with the policy documents, the insured reasonably expected the UM/UIM coverage to extend to those listed drivers. As indicated above, where language in a policy is ambiguous, an interpretation finding coverage will be applied given the sound public interest for UM/UIM coverage in both Virginia and Delaware. See Nat'l Union Fire Ins. Co. v. Fisher, 692 A.2d 892 (Del. 1997); Bryant v. State Farm Mut. Automobile Ins. Co., 140 S.E.2d 817 (Va. 1965).
2. Any person who "uses" the vehicle
By law, in Virginia, an insurer who provides liability insurance relating to the ownership of a vehicle must also provide uninsured motorist coverage which covers the "insured" in an amount equal to the coverage of the liability insurance. Va. Code § 38.2-2206A. The "insured," includes the named insured and any person who uses the covered vehicle with the permission of the named insured. Va. Code § 38.2-2206B. An "uninsured motor vehicle" includes not only a vehicle which is not insured, but also includes a tortfeasor's vehicle for which the insurer refuses to extend liability coverage to the injured party. Id. The insurer for Wheeler and Kaye trucking, St. Paul, has denied coverage for this accident. Draper has general liability insurance through Liberty Mutual Insurance Company, however, Wheeler was not employed by and was not operating the Yard Dog with Draper's permission. The Yard Dog is therefore an "uninsured motor vehicle" for the purposes of Virginia law.
Except as provided in subsection J of this section, no policy or contract of bodily injury or property damage liability insurance relating to the ownership, maintenance, or use of a motor vehicle shall be issued or delivered in this Commonwealth to the owner of such vehicle or shall be issued or delivered by any insurer licensed in this Commonwealth upon any motor vehicle principally garaged or used in this Commonwealth unless it contains an endorsement or provisions undertaking to pay the insured all sums that he is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle, within limits not less than the requirements of § 46.2-472. Those limits shall equal but not exceed the limits of the liability insurance provided by the policy, unless any one named insured rejects the additional uninsured motorist insurance coverage by notifying the insurer as provided in subsection B of § 38.2-2202.
"Insured" as used in subsections A, D, G and H of this section means the named insured and . . . any person who used the motor vehicle to which the policy applies, with the expressed or implied consent of the named insured."
"Uninsured motor vehicle" means a motor vehicle for which (i) there is no bodily injury liability insurance and property damage liability insurance in the amounts specified by § 46.2-272, (ii) there is such insurance but the insurer writing the insurance denies coverage for any reason whatsoever, including failure or refusal to cooperate with the insurer. . . ."
Virginia courts apply two distinct analyses to determine whether an injured person qualifies for UM/UIM coverage. In the first instance the Court determines if the injured party was "using" the vehicle at the time of the injury for the purposes of the statute. Separately, the Court determines whether the injured party was "occupying" or "using" the vehicle for the purposes of determining who is an "insured" according to the language of the policy. See Edwards v. Government Employees Ins. Co., 500 S.E.2d 819 (Va. 1998). If the claimant qualifies under either test, he is covered by the policy.
An injured party is "using" a vehicle if there is a causal relationship between his use of the vehicle as a vehicle and the accident. Edwards, 500 S.E.2d at 821. A causal relationship exists if the injured party's use of the vehicle is "an integral part of his mission when he is injured." Coverage "is not limited to the transportation function of the vehicle." Id. In Edwards, the Virginia Supreme Court found that a man injured while changing a tire was "using" the vehicle because his changing of the tire was an integral part of his mission to drive the car to a service station to get the tire fixed. Id.
In Provencher v. Virginia Municipal Liability Pool, 1999 WL 58736 (Va. Cir. Ct.), a sheriff's deputy, injured by an uninsured motorist who struck a disabled vehicle the officer was helping to move from an overpass, was "using" his vehicle. The officer had illuminated the scene with his car's headlights and had turned on his emergency lights. His mission, according to the Court, was to assist in the moving of the vehicle. He was using the car to protect the people moving the vehicle and "to protect passing motorists from the disabled vehicle." Id. at 2. Thus, the Court concluded that at the time he was injured the officer was "using" the car and that use was an integral part of his mission.
Under similar circumstances, in Great American Ins. Co. v. Cassell, 389 S.E.2d 476 (Va. 1990), a firefighter killed by a hit and run driver while fighting a car fire was found to be "using" the covered fire truck at the time of the accident. The mission was to put out a fire. Since the truck was being used to restrict traffic, protect the firefighters and as the water supply, use of the truck was integral to accomplishing the mission (which at the time of the accident had not yet been completed).
In contrast, a police officer serving a warrant, who was struck and killed by an uninsured motorist while around 150 feet away from his parked cruiser was not "using" the vehicle and was therefore not an "insured" under the Virginia uninsured motorist statute. Ins. Co. of North America v. Carl Perry, 134 S.E.2d 418 (Va. 1964).
In this case, Reese was using his truck when he was hit by the Yard Dog. He had backed his truck up to the loading dock. He left the engine running, exited the truck and leaving the door open, walked over to some Draper employees to ask if it was positioned correctly in the dock. The Yard Dog hit Reese as he walked back to the truck to turn off the engine and close the door. Reese's mission was to deliver carrots, and the docking and unloading process is an integral part of that mission. Since Reese was still engaged in the act of docking his truck when the accident occurred, he was using the truck.
3. "Anyone else `occupying' a `covered auto'"
Whether a claimant is "occupying" a vehicle depends upon the specific language in the policy. This policy defines "occupying" as "in, upon, getting in, on, out or off." Virginia Courts interpret the language in the policy narrowly, stating that "the word `occupying' `denotes a physical presence in or on a place or object.'" Newman v. Erie Ins. Exchange, 507 S.E.2d 348, 350 (Va. 1998), quoting, Stern v. Cincinnati Ins. Co., 477 S.E.2d 517, 519 (Va. 1996). Each term in the definition is distinct, but each must be interpreted as having some connection to "occupying" the vehicle. See Pennsylvania Nat'l Mut. Cas. Ins. Co. v. Bristow, 150 S.E.2d 125, 128 (Va. 1966).
It is clear that Reese was neither "in" nor "upon" the covered truck at the time of the accident, as he had walked away from it. See Edwards v. Government Employees Ins. Co., 500 S.E.2d 819, 822 (Va. 1998) (finding that changing a tire is not an act related to occupancy of the vehicle, nor could the claimant be considered to be physically in or on the covered vehicle); Pennsylvania Nat'l Mut. Cas. Ins. Co. v. Bristow, 150 S.E.2d 125 (Va. 1966) (finding "good samaritan" leaning against vehicle while looking under the hood was not "upon" the vehicle for the purposes of the definition of "occupying").
The terms "getting in" and "getting off" require close proximity to the vehicle. Newman, 507 S.E.2d at 350. A child crossing the street to get into a school bus would not be close enough to be "getting in" to the vehicle under the definition of "occupying" in a policy. Id. However, the Western District Court of Virginia found that a man, hit by an uninsured motorist while standing in the road having a conversation after exiting a vehicle, to be covered by the UM/UIM policy. Roberts v. GEICO, 686 F. Supp. 135 (W.D. Va. 1988) (interpreting the term "alighting from").
Reese was not "getting out" or "getting off" of the truck as he had completed the act of exiting the truck and moved onto his next task of asking about its placement at the docking bay. In addition, Reese could not have been "getting in" or "getting on" because, although he was heading back to his truck to turn it off, at the time he was hit he had not yet reached the truck and had stepped aside to avoid another truck in the loading dock. From the evidence, it appears that Reese was some distance from his tractor trailer when he was hit by the Yard Dog. He was clearly not touching the vehicle. This case is most similar to the situation in Newman, in which the injured child was crossing the street to reach the school bus. Reese's actions cannot be likened to the events in Roberts because in that case, the injured man was still standing next to the vehicle when he was hit. (In addition, the District Court in that case opted to follow the reasoning in a South Carolina case; at the time, Virginia treatment of this issue was very limited. Roberts, 686 F. Supp. 135, citing, Whitmire v. Nationwide Mut. Ins. Co., 174 S.E.2d 391.) In conclusion, Reese was not occupying the vehicle according to the Virginia Courts' interpretation of this term.
Coverage would likely be found under Delaware law as well. Nat'l Union Fire Ins. Co. v. Fisher, 692 A.2d 892, 894 (Del. 1977). Reese would be engaged in both a job-related task for which the truck was an integral part and a task related to the vehicle's operation. Although docking the truck is also a task related to Reese's work, i.e. delivery of the goods, walking around the truck to check its placement for docking is related to the operation of the truck much like checking the fasteners on a loaded trailer would be. Id. at 897-8.
CONCLUSION
For the foregoing reasons, Third-Party Defendant, Commercial Union's Motion for Summary Judgment is denied. Plaintiff's Motion for Summary Judgment is granted. Reese is covered under the UM/UIM policy as a named insured under the designation "any family member" and he is covered under the policy as a user of the covered vehicle pursuant to Virginia law.IT IS SO ORDERED.