UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETER EDWARDS,
Plaintiff-Appellant,

v.

GEICO,
Defendant-Appellee,

and
                                                               No. 97-1437
MARYLAND AUTOMOBILE INSURANCE
FUND,
Defendant,

v.

TYRONE SUMPTER; CURTIS DWORKEN
CHEVROLET, INCORPORATED,
Third Party Defendants.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-95-2411-MJG)

Argued: October 3, 1997

Decided: July 9, 1998

Before MURNAGHAN and WILKINS, Circuit Judges, and
MAGILL, Senior Circuit Judge of the United States
Court of Appeals for the Eighth Circuit,
sitting by designation.

_________________________________________________________________

Reversed and remanded by unpublished per curiam opinion.
COUNSEL

ARGUED: Patrick Joseph Christmas, Washington, D.C., for Appel-
lant. Wade John Gallagher, MARTELL, DONNELLY, GRIMALDI
& GALLAGHER, Rockville, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Peter Edwards brought this action against the Government Employ-
ees Insurance Company (GEICO) and the Maryland Automobile
Insurance Fund, seeking to prove their liability for injuries he suffered
when struck by an allegedly uninsured motorist. Edwards appeals the
decision of the district court granting summary judgment to GEICO,
arguing that GEICO's policy provided coverage because Edwards
was both "using" and "occupying" the GEICO-insured vehicle at the
time of the accident. We reverse and remand for further proceedings.

I.

The facts of this matter are largely undisputed. This action arises
out of an insurance policy issued by GEICO on a vehicle owned by
Terry Presmont. In July 1993, Presmont requested Edwards' assis-
tance in repairing a flat tire on the insured automobile. Edwards drove
to Presmont's residence and obtained the keys to her automobile,
which was parked on the street. Edwards' intention was to replace the
flat tire with a spare and drive the vehicle to a nearby service station.
While Edwards was attempting to change the tire, using tools he had
obtained from the trunk of the vehicle, he was struck by an uninsured
motorist and suffered significant injuries.

Edwards subsequently brought this action alleging, inter alia, that
he was an "insured" under the policy issued to Presmont by GEICO

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and entitled to uninsured motorist coverage. GEICO denied liability.
On cross motions for summary judgment, the district court ruled in
favor of GEICO, concluding that Edwards was not covered by the
GEICO policy because he was neither "using" nor "occupying" Pres-
mont's vehicle at the time of the accident.

II.

The parties agree that Virginia law governs this diversity action.
Under Virginia statutory law pertaining to uninsured motorist cover-
age, the term "insured" must include "any person who uses the motor
vehicle to which the policy applies, with the expressed or implied
consent of the named insured." Va. Code Ann.§ 38.2-2206(B)
(Michie Supp. 1997). The GEICO insurance policy issued to Pres-
mont also extends uninsured motorist coverage to persons "occupy-
ing" the vehicle. J.A. 48 (internal quotation marks & emphasis omit-
ted). The policy defines the term "occupying" as "in or upon or
entering into or alighting from" the insured vehicle. Id. (internal quo-
tation marks omitted). After determining that the inquiry of whether
Edwards was "using" or "occupying" Presmont's vehicle at the time
of the accident presented novel issues of Virginia law, we certified the
following two questions to the Supreme Court of Virginia:

          a. Was Edwards, who at the time of the accident was
          repairing a vehicle parked on the street with the intention of
          driving it to a service station, "using" the vehicle within the
          meaning of Code of Virginia Annotated § 38.2-2206(B)?

          b. Was Edwards, who at the time of the accident was
          changing the tire of a vehicle parked on the street with the
          intention of driving it to a service station for further repairs,
          "occupying" the vehicle within the meaning of the GEICO
          policy definition?

The Supreme Court of Virginia answered the first question in the
affirmative and the second in the negative. See Edwards v. Govern-
ment Employees Ins. Co., ___ S.E.2d #6D 6D6D# (Va. 1998). Accordingly,
we must reverse the decision of the district court granting summary
judgment in GEICO's favor and remand for further proceedings con-

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sistent with this opinion.

REVERSED AND REMANDED

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