Present: Hassell, C.J., Lacy, Keenan, Koontz, Lemons, and
Agee, JJ., and Russell, S.J.

FIREMAN'S FUND INSURANCE
COMPANY                                 OPINION BY
                               SENIOR JUSTICE CHARLES S. RUSSELL
v.   Record No. 031515                April 23, 2004

BETTY L. SLEIGH, ET AL.

        FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                    Thomas A. Fortkort, Judge

      In this appeal from a declaratory judgment, we revisit

the frequently-litigated question of the extent of the

coverage provided pursuant to the uninsured/underinsured

motorist statute, Code § 38.2-2206.

      Betty L. Sleigh was employed by the City of Alexandria

Police Department as a Parking Enforcement Officer.   Her

unrefuted testimony was the only evidence in the record

concerning the facts of the case.   She testified that on May

10, 1999, she went to the 400 block of North Royal Street, in

Alexandria, to enforce "street cleaning hours" when parking

was prohibited by local ordinance on certain days of the week.

Finding a car parked in violation of the ordinance, she

stopped her police vehicle "alongside it," got out, walked to

a position between the two vehicles, and began to write a

citation.

      Before Sleigh could complete the citation and place it on

the parked car, a young woman, later identified as Crystal A.
Gibson, ran out of a nearby building and "jumped into the

vehicle," striking Sleigh in the arm with the driver's-side

door as she opened it to enter the parked car.   Apparently

realizing that she had failed to bring her keys with her,

Gibson "yelled to a woman behind us . . . bring her the keys."

The woman produced the keys and Gibson opened the door,

striking Sleigh a second time as she got out of the car to

retrieve the keys.   Opening the door a third time, Gibson

"jumped back into the car" with the keys and Sleigh "kind of

pushed the door back to defend myself."    At this point, Gibson

"started yelling" and "jumped out the door and slammed the

door up against me . . . she come [sic] flying out of the car

and pushed the door very, you know, really very hard, and I

turned to move and she then pushed me where my left side went

up against the car."   Sleigh further testified that this final

blow from Gibson's car door drove her back into the side of

her police vehicle with such force that she sustained

permanent back injury requiring surgery.   Sleigh tried to make

a radio call requesting "backup" but Gibson seized her radio,

threw it to the ground, "jumped in her car and took off."

     Sleigh filed a motion for judgment against Gibson in the

trial court to recover damages for her injuries and took the

position that Fireman's Fund Insurance Company (the insurer)

afforded coverage to her under the uninsured motorist


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provisions of a policy the insurer had issued on Sleigh's

personal automobile.   The insurer brought the present motion

for declaratory judgment against Sleigh seeking an

adjudication that the uninsured motorist coverage provided by

its policy does not apply to Sleigh's "altercation" with

Gibson.   It is undisputed that Sleigh was an "insured" under

the policy and that Gibson was an "operator of an uninsured

motor vehicle" as defined by Code § 38.2-2206 and as

contemplated by the policy.   The only dispute is whether the

coverage applies under the facts of the case.

     The parties, by agreement, submitted the case to the

court on Sleigh's deposition and the policy, further agreeing

that the facts were undisputed.       The court, in a letter

opinion, ruled that the insurer's policy afforded coverage to

Sleigh, and dismissed the motion for declaratory judgment.

     On appeal, the insurer contends that Gibson was not using

her car as a vehicle when she struck Sleigh with the car door,

but was rather using the car, or a part of it, as a weapon.

The uninsured motorist clause of the policy provides:

          The Company will pay . . . all sums which the
     insured . . . shall be legally entitled to recover
     as damages from the owner or operator of an
     uninsured motor vehicle because of bodily injury
     sustained by the insured . . . caused by accident
     and arising out of the ownership, maintenance or use
     of such uninsured motor vehicle.




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The governing statute, Code § 38.2-2206, provides, in

pertinent part, that automobile insurance policies issued in

Virginia must contain:

     . . . 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 . . . .

     The insurer contends that Gibson's use of the uninsured

vehicle as a weapon is inconsistent with the concept of "use

of the vehicle as a vehicle," a prerequisite to uninsured

motorist coverage under our decisions, citing Nationwide

Mutual Insurance Co. v. Smelser, 264 Va. 109, 114, 563 S.E.2d

760, 763 (2002).   The insurer argues that the tortfeasor's

intent was to use the car door to inflict injury, not for the

ordinary purposes for which the door was designed, and that

this is determinative.

     Sleigh argues that the tortfeasor's intent is irrelevant

because the true test is whether the uninsured vehicle was

being employed in the ordinary manner for which it was

designed and constructed, rather than in a manner foreign to

its designed purpose, and whether such employment was causally

related to the injury sustained.    The trial court, after an

extensive review of our decisions, agreed.

     In Lexie v. State Farm Mut. Auto. Ins. Co., 251 Va. 390,

396-97, 469 S.E.2d 61, 64 (1996), applying similar policy



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language, we said, "The principal focus is upon the manner in

which the [uninsured] vehicle, whether moving or stationary,

is being employed, not upon the activity or role of any

assailant who may be in, upon, or around the uninsured

vehicle."   In Utica Mutual v. Travelers Indemnity, 223 Va.

145, 147-48, 286 S.E.2d 225, 226 (1982), we found an insurer

liable for injuries sustained by its insured's passenger as a

result of a willful tort by an uninsured motorist who

deliberately ran the insured's car off the road.

     Thus, it is clear that in Virginia the intent of the

uninsured tortfeasor is irrelevant to the question of

coverage; rather, the determinative issue is the nature of the

employment of the uninsured vehicle.   Where such a vehicle is

employed in a manner foreign to its designed purpose, e.g.,

Lexie, supra (drive-by shooting from moving vehicle);

Travelers Insurance Company v. LaClair, 250 Va. 368, 463

S.E.2d 461 (1995) (shooting from behind door of stopped car,

using it as a shield), there is no coverage under the

uninsured motorist provisions because the resulting injury

does not arise out of the "use" of the uninsured vehicle as a

vehicle, but instead arises from its employment in a manner

contemplated neither by its designers, its manufacturer, nor

the parties to the insurance contract.




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     On the other hand, where the injury arises out of the

employment of the uninsured vehicle in the manner for which it

was designed and as reasonably contemplated by the parties to

the insurance contract, coverage exists under such policies

where there is a causal relationship between such use and

injury sustained by the insured, regardless of the intent of

the uninsured motorist.   See, Smelser, supra (passenger in

moving car driven by uninsured motorist reached out window and

seized straps of purse carried by insured pedestrian; forward

movement of uninsured car dragged victim along the pavement).

     Car doors are designed and manufactured to be opened and

closed.   It is clearly within the contemplation of the parties

to an insurance contract that injury may sometimes be caused

by the act of using a car door as designed, either negligently

or willfully.   Here, Gibson's use of her car door as designed

was use of the uninsured vehicle "as a vehicle" and was

causally related to Sleigh's injury.   We agree with the trial

court's analysis and will affirm the judgment.

                                                       Affirmed.




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