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Selective Ins. Co. v. Bratton, Adm’r (Dorsey)

August 5, 2020

Recently, the Roanoke County Circuit Court was asked to determine whether the estate of a dump truck driver could recover underinsured motorist coverage from a paving company’s carrier. The facts of the case involved a dump truck driver who had left his truck to check on an asphalt spill in a construction area where he was working.  While he was outside of his vehicle, drunk drivers crashed into the highway construction site, fatally injuring the dump-truck driver. When the drunk drivers’ insurance carriers denied coverage, the estate looked to other available coverage to satisfy the judgment it had obtained.  A declaratory judgment action resulted whereby the court was asked to determine whether the carrier for the dump truck and the carrier for a nearby pickup truck parked at the job site were responsible to the estate for any coverage under their UIM policies.  The case turned on whether the dump truck driver was “using” either or both of the insured vehicles at the time of his death.   The first “use” argument by the estate was that the decedent was engaged in a pattern of exiting the truck to check for spilled asphalt after a specific number of pours in the course of his duties on the job site.  The court found insufficient evidence to confirm that the decedent was indeed checking for spilled asphalt at the time of his death so it held that the estate failed to meet its burden of proof to show that the decedent was “using” the dump truck within the meaning of the UIM policy. The next argument of the estate was that the decedent was using the pickup truck as a “shadow vehicle” to serve as an added traffic barrier.  The court was persuaded by the facts that (a) the truck was not part of the road closure and no one ordered the truck to be parked at its specific location; (b) the company that owned the truck was not responsible for setting up the job site or for arranging the lane closures; and (c) the use of the pickup truck as a shadow vehicle was not within the parties’ reasonable contemplations; rather, such use was outside the parties’ “objective and reasonable” contemplations.  Because of this, the court determined that the decedent was not using the pickup within the meaning of UIM carrier’s policy or Va. Code § 38.2-2206(A).