Present: All the Justices 

ELENA SEROKA STERN, AN INFANT, ETC., ET AL. 

OPINION BY JUSTICE ROSCOE B. STEPHENSON, JR. 

v. Record No. 960511 

 November 1, 1996 

THE CINCINNATI INSURANCE COMPANY, ET AL. 

 UPON QUESTIONS OF LAW CERTIFIED BY THE UNITED STATES 

COURT OF APPEALS FOR THE FOURTH CIRCUIT 

 The United States Court of Appeals for the Fourth Circuit 

entered an order of certification requesting that we exercise our 

certification jurisdiction, Va. Const. art. VI, § 1; Rule 5:42, 

and answer two questions of law involving a dispute regarding 

insurance coverage. By order entered June 11, 1996, we accepted 

the questions for consideration. 

 I 

 Elena Seroka Stern and her parents (collectively, the 

Sterns) filed a declaratory judgment proceeding against The 

Cincinnati Insurance Company (Cincinnati), State Farm Mutual 

Automobile Insurance Company (State Farm), and Graphic Arts 

Mutual Insurance Company (Graphic Arts) in the Circuit Court of 

the City of Lynchburg, seeking, inter alia, a declaration that an 

insurance policy issued by Graphic Arts provided coverage for 

injuries Elena sustained when she was struck by a motor vehicle. 

 Based upon diversity of citizenship, the action was removed to 

the United States District Court for the Western District of 

Virginia. The district court granted summary judgment in favor 

of Graphic Arts, concluding that the Graphic Arts policy provided 

no coverage to the Sterns. The Sterns appealed to the United 

States Court of Appeals for the Fourth Circuit. 
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 II 

 The facts are set forth in the Fourth Circuit's 

certification order. On March 21, 1995, Elena, age 10, was 

waiting at her usual school bus stop on the east side of Sandusky 

Drive, a two-lane road, in the City of Lynchburg. Elena's bus 

approached from the north and stopped to allow her to board. The 

driver activated the bus' flashing red lights and safety stop 

sign and extended its safety gate, and Elena began to cross the 

road in front of the gate. When she was two or three feet east 

of the center line of the road and several feet from the front of 

the bus, a car struck and injured her. 

 The car was operated by David Demoss, and Demoss' liability 

for Elena's injuries is stipulated. Demoss is also liable in 

damages to Elena's parents, Gary and Josephine Stern, for the 

expense of medical treatment provided to Elena to treat her 

bodily injuries. 

 At the time of the accident, Demoss was the named insured 

under an automobile liability insurance policy issued by 

Cincinnati, which provided limits of $25,000 per person. Elena, 

as a resident relative of her parents' household, was insured 

under the underinsured motorist provisions of a policy issued to 

her parents by State Farm. This policy provided limits of 

$100,000 per person. The School Board of the City of Lynchburg, 

the owner and operator of the bus, was the named insured under a 

vehicle liability insurance policy issued by Graphic Arts. This 
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policy covered the bus and provided underinsured motorist 

coverage to persons defined as insureds under the policy in the 

amount of $1,000,000. 

 The Graphic Arts policy defines "Insured" to include, inter

alia, those who are injured while "occupying" a covered vehicle. 

 The policy defines "Occupying" as "in, upon, getting in, on, out 

or off." The Virginia uninsured motorist statute, Code § 38.2-

2206, provides that there is coverage for an individual who 

"uses," with the expressed or implied consent of the named 

insured, the motor vehicle to which the policy applies. 

 The district court concluded that Elena was neither 

"occupying" nor "using" the bus at the time of the accident and, 

therefore, was not entitled to underinsured motorist coverage 

under the liability policy issued by Graphic Arts. 

 We accepted for consideration the following questions of law 

certified to us by the Fourth Circuit: 

 1. Was [Elena] "occupying" the school bus, as 

that term is defined in the Graphic Arts 

policy, when she was injured? 

 2. Was [Elena] "using" the school bus, as that 

term is defined in Virginia Code Ann. § 38.2-

2206, when she was injured? 

 III 

 We begin with the first certified question which requires us 

to look to the Graphic Arts policy. When the language in an 

insurance policy is clear and unambiguous, courts do not employ 

rules of construction; rather, they give the language its plain 
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and ordinary meaning and enforce the policy as written. Virginia 

Farm Bureau Mut. Ins. Co. v. Hodges, 238 Va. 692, 696, 385 S.E.2d 

612, 614 (1989); United Services Auto. Assoc. v. Webb, 235 Va. 

655, 657, 369 S.E.2d 196, 198 (1988); Atlas Underwriters, Ltd. v. 

Meredith-Burda, Inc., 231 Va. 255, 259, 343 S.E.2d 65, 68 (1986). 

 We think the language in the Graphic Arts policy is clear and 

unambiguous. 

 The policy defines "occupying" as "in, upon, getting in, on, 

out or off." The Sterns concede that Elena was not "in" or 

"upon" the school bus and that she was not "getting out or off" 

the bus. They contend, however, that Elena was "getting in [or] 

getting on" the bus. We do not agree. 

 The terms "getting in" and "getting on" a vehicle must be 

read and interpreted in relation to "occupying," the word defined 

in the policy. See Casualty Company v. Bristow, 207 Va. 381, 

384-85, 150 S.E.2d 125, 128 (1966). The word "occupying" denotes 

a physical presence in or on a place or object. Thus, when the 

terms "getting in" and "getting on" are read in relation to 

"occupying" a school bus, and when the terms are given their 

plain and ordinary meanings, they require a close proximity to 

the bus. 

 We do not think that Elena, who was near the center line of 

the road when she was struck, was in such close proximity to the 

school bus. She was merely approaching the bus, and we cannot 

say that she was getting in or on the bus, as contemplated in the 
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Graphic Arts policy. Therefore, we answer the first certified 

question in the negative. 

 IV 

 To answer the second certified question, we look to the 

uninsured motorist statute, Code § 38.2-2206. The term 

"Insured," as defined by Code § 38.2-2206, 

 means the named insured and, while resident of the same 

household, the spouse of the named insured, and 

relatives of either, while in a motor vehicle or 

otherwise, and any person who uses the motor vehicle to 

which the policy applies, with the expressed or implied 

consent of the named insured, and a guest in the motor 

vehicle to which the policy applies. 

(Emphasis added.)* We must determine, therefore, whether Elena 

was "using" the school bus at the time of the accident. 

 Code § 38.2-2206 recognizes two classes of insureds to each 

of which accrues different benefits. Insureds of the first class 

are the named insured and, while residents of the same household, 

the spouse of the named insured and relatives of either. Such 

insureds are entitled to coverage "while in a motor vehicle or 

otherwise," even if injured as a pedestrian. Insurance Company

v. Perry, 204 Va. 833, 836, 134 S.E.2d 418, 420 (1964) (decided 

under predecessor statute). 

 Insureds of the second class are guest passengers in or 

permissive operators of the motor vehicle to which the policy 

applies. Id. at 837, 134 S.E.2d at 420. Such insureds' 

 

 *The definition of "insured" was amended effective July 1, 

1995, to include wards or foster children of either the named 

insured or the named insured's spouse. Acts 1995, c. 476. 
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entitlement to coverage is more narrow than that of insureds of 

the first class because insureds of the second class are "`tied 

to and limited to actual occupancy'" of a particular motor 

vehicle. Cunningham v. Ins. Co. of N. America, 213 Va. 72, 76, 

189 S.E.2d 832, 835 (1972) (quoting Sturdy v. Allied Mutual Ins. 

Co., 457 P.2d 34, 40 (Kan. 1969)). 

 In arguing that Elena was "using" the school bus at the time 

of the accident, the Sterns rely upon Great American Insurance 

Co. v. Cassell, 239 Va. 421, 422-23, 389 S.E.2d 476, 476-77 

(1990). In Cassell, a fire fighter, while standing about 20 to 

25 feet from his fire truck, was struck and killed by an 

uninsured motorist. The truck had transported the fire fighter 

to the scene of the fire and had been parked in such a way as to 

control traffic and to protect the fire fighters. The fire truck 

had brought water, hoses, tools, and other equipment to the 

scene. Thus, the truck and its equipment were integral parts of 

the mission which had placed the fire fighter in the street; 

i.e., the extinguishment of the fire, and the mission had not 

been completed when the accident occurred. Under these facts, we 

held that the fire fighter was using the fire truck, within the 

meaning of the uninsured motorist statute, when he was struck and 

killed. Id. at 424, 389 S.E.2d at 477. 

 We think the Sterns' reliance upon Cassell is misplaced. In 

Cassell, the fire fighter began to use the fire truck by riding 

in or on it to the scene of the fire. At the scene, the fire 
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fighter continued to use the truck and its equipment to 

extinguish the fire and to control traffic. Clearly, he was 

using the truck when the accident occurred. 

 In the present case, on the other hand, Elena had made no 

such use of the school bus. She had not been a passenger in the 

bus, and, although the school bus was utilized by its driver to 

create a safety zone for Elena to cross the street, the safety 

measures did not constitute a use of the bus by Elena. 

 We think the present case is controlled by our holdings in 

Perry and United States Fire Ins. Co. v. Parker, 250 Va. 374, 463 

S.E.2d 464 (1995). 

 In Perry, we concluded that a police officer, who was 

engaged in serving a warrant, was not using his police cruiser at 

the time of the accident because, when he was struck by an 

uninsured motorist, he had exited the vehicle, placed its keys in 

his pocket, and walked 164 feet from it. 204 Va. at 838, 134 

S.E.2d at 421. In Parker, we held that a landscape worker, who 

had driven the insured pickup truck to the area where the 

accident occurred, was not using the vehicle at the time of the 

accident because, when she was struck by an uninsured motorist, 

she was standing 12 to 15 feet from the vehicle and performing 

landscaping duties. She was not "utilizing the truck as a 

vehicle" when struck. 250 Va. at 378, 463 S.E.2d at 466. 

 In the present case, under the narrow coverage afforded 

insureds of the second class, Elena clearly was not utilizing the 
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bus as a vehicle because she was not yet a passenger of the 

school bus and, therefore, was not using the bus, within the 

meaning of Code § 38.2-2206, when she was injured. Consequently, 

we hold that the Graphic Arts policy does not provide 

underinsurance coverage to the Sterns, and we answer the second 

certified question in the negative. 

 First Certified Question Answered in the Negative. Second Certified Question Answered in the Negative. 

JUSTICE HASSELL, with whom JUSTICE LACY and JUSTICE KEENAN join, 

dissenting. 

 I write separately because I believe that Elena Stern was 

"getting on" the school bus as that term is set forth in the 

Graphic Arts policy of insurance. 

 The Graphic Arts policy of insurance defines "occupying" as 

"in, upon, getting in, on, out or off." As the majority points 

out, Elena was waiting for the public school bus at her 

designated bus stop when the bus approached from the north and 

stopped, allowing her to board. The bus driver activated the 

bus' flashing red lights and safety stop sign and extended the 

bus' safety gate. Elena began to cross the road in front of the 

gate. She was several feet from the front of the bus when a car 

struck her. My experiences, as well as those of thousands of 

parents throughout this Commonwealth who accompany children to 

bus stops daily, lead me to the inescapable conclusion that, 

based upon the aforementioned facts, Elena clearly was getting on 

the bus when she was injured. 
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 Additionally, contrary to the majority's holding, I believe 

that Elena was using the bus within the intendment of Code 

§ 38.2-2206. The school bus driver had stopped the bus for the 

sole purpose of allowing the children to get onto the bus, and, 

as the majority admits, the driver activated the bus' flashing 

red lights and safety stop sign, and extended its safety gate. 

The majority also admits that after the driver had activated the 

bus' safety features, Elena began to cross the road "in front of 

the gate." The majority's own factual summary indicates to me 

that Elena was, at the very least, using the bus' safety devices. 

 The sole purpose of such devices is to protect school children. 

 Therefore, I am at a loss to understand the majority's 

conclusion that "the safety measures did not constitute a use of 

the bus by Elena."