Present: All the Justices 

PETER EDWARDS 

v. Record No. 972635 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 June 5, 1998 

GOVERNMENT EMPLOYEES 

INSURANCE COMPANY 

UPON QUESTIONS OF LAW CERTIFIED BY THE UNITED 

STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT 

 Under the provisions of Rule 5:42, the United States Court 

of Appeals for the Fourth Circuit certified to this Court two 

questions of Virginia law asking whether a plaintiff in a 

personal injury action was "using" or "occupying" a motor 

vehicle at the time he was struck by another car. The facts as 

stated in the certification order are set forth below. 

Terry Presmont asked Peter Edwards, an acquaintance, to 

change a flat tire on Presmont's car that was parked on a street 

in the District of Columbia. Presmont gave Edwards a key to the 

car. Edwards did not enter the driver's area of the car or use 

the key for any purpose other than to open the trunk. 

Edwards took the jack and the spare tire out of the trunk. 

He intended to install the spare tire in order to drive the car 

to a service station to have the flat tire repaired. After 

raising the car with the jack, Edwards began to take off the lug 

nuts to remove the flat tire. Before he could remove all the 

lug nuts, he was struck in the ankle by a car driven by an 
uninsured motorist. Edwards suffered a fractured ankle for 

which he received medical treatment. 

At the time of the accident, Presmont was a Virginia 

resident. Her car was insured by a motor vehicle liability 

insurance policy (Policy) issued in Virginia by Government 

Employees Insurance Company (GEICO). The Policy provides 

liability coverage to insured persons occupying the insured 

vehicle. The term "insured" is defined by the Policy in 

relevant part as "any other person while occupying an insured 

motor vehicle." "Occupying" is defined by the Policy as "in or 

upon or entering into or alighting from" the insured vehicle. 

 Edwards, a resident of the District of Columbia, filed a 

complaint against GEICO in the United States District Court for 

the District of Maryland (Southern Division), seeking damages 

for his personal injuries under the uninsured motorist and 

medical payment provisions of the Policy. GEICO filed a motion 

for summary judgment, asserting that Edwards did not qualify as 

an "insured" under Code § 38.2-2206* because he was not "using" 

 *

At the time of Edwards' injury, Code § 38.2-2206(B) 

provided: 

"Insured" as used in subsections A, D, G, and H of this 

section 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 

2
the insured vehicle at the time of the accident. GEICO also 

argued that Edwards was not "occupying" the insured vehicle 

within the meaning of the Policy definition. 

 The district court granted GEICO's motion for summary 

judgment, concluding that Edwards was neither "using" nor 

"occupying" the insured vehicle at the time of the accident. 

Edwards noted an appeal to the United States Court of Appeals 

for the Fourth Circuit, which presented the following certified 

questions to this Court: 

1. 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 Virginia Code § 38.2-2206(B)? 

2. 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? 

Edwards argues before this Court that he was "using" the 

insured vehicle at the time he was struck and, therefore, 

qualifies as an "insured" under Code § 38.2-2206(B). In support 

of this argument, Edwards chiefly relies on Great American 

Insurance Company v. Cassell, 239 Va. 421, 389 S.E.2d 476 

(1990). There, we held that a fire fighter, who was struck by a 

vehicle while standing approximately 20 to 25 feet from his fire 

 

which the policy applies or the personal representative of 

any of the above. 

3
truck, was "using" the truck because he was engaged in a 

transaction essential to the truck's use at the time of the 

accident. Id. at 424, 389 S.E.2d at 477. Edwards asserts that, 

like the fire fighter in Cassell, he was "using" the insured 

vehicle when he was struck because the act of changing a flat 

tire was essential to use of the car. 

Edwards also contends that he was "occupying" the insured 

vehicle within the meaning of the Policy definition. Edwards 

argues that his close proximity to the insured vehicle and his 

intention to occupy the car once his task was completed provide 

sufficient evidence to support a conclusion that he was 

"occupying" the insured vehicle. 

In response, GEICO first asserts that Edwards was not 

"using" the insured vehicle when he was struck because the car 

was not involved in any "mission" at the time of the accident. 

GEICO also argues that Edwards was not "occupying" the insured 

vehicle within the meaning of the Policy definition. Citing 

Pennsylvania National Mutual Casualty Insurance Company v. 

Bristow, 207 Va. 381, 385, 150 S.E.2d 125, 128 (1966), GEICO 

contends that Edwards was not "upon" the insured vehicle 

because, while he was in close proximity to the car, he did not 

have sufficient intent to use it. GEICO also relies on Stern v. 

The Cincinnati Insurance Company, 252 Va. 307, 311, 477 S.E.2d 

4
517, 519 (1996), in which we held that a child crossing a street 

to board a school bus was not "occupying" the bus. 

We first consider the question whether Edwards was "using" 

the insured vehicle at the time of the accident within the 

meaning of Code § 38.2-2206(B). The statute defines "insured," 

in material part, as "any person who uses the motor vehicle to 

which the policy applies, with the expressed or implied consent 

of the named insured." Id. The coverage mandated by the 

statute is limited to injuries sustained by the permissive user 

while actually using the insured vehicle. Randall v. Liberty 

Mut. Ins. Co., 255 Va. 62, 65, 496 S.E.2d 54, 55 (1998); 

Insurance Co. of North America v. Perry, 204 Va. 833, 838, 134 

S.E.2d 418, 421 (1964). 

In determining whether Edwards was "using" the insured 

vehicle at the time he was injured within the meaning of Code 

§ 38.2-2206(B), the relevant inquiry is whether "there was a 

causal relationship between the accident and the use of the 

insured vehicle as a vehicle." Randall, 255 Va. at 66, 496 

S.E.2d at 56; accord United States Fire Ins. Co. v. Parker, 250 

Va. 374, 377, 463 S.E.2d 464, 466 (1995); Travelers Ins. Co. v. 

LaClair, 250 Va. 368, 372, 463 S.E.2d 461, 463 (1995). The 

coverage mandated by the statute for "use" of a vehicle is not 

limited to the transportation function of the vehicle. Randall, 

255 Va. at 66, 496 S.E.2d at 56. "If the injured person is 

5
using the insured vehicle as a vehicle and as an integral part 

of his mission when he is injured, he is entitled to UM/UIM 

coverage under § 38.2-2206." Id.; accord Parker, 250 Va. at 

377-78, 463 S.E.2d at 466; Cassell, 239 Va. at 424, 389 S.E.2d 

at 477. 

Our decisions in Randall and Cassell are determinative of 

this inquiry. In Randall, a highway worker was struck and 

killed by a car while placing lane closure signs along the side 

of a highway. He had driven the insured vehicle to the site, 

left the engine running, and kept on the flashing yellow bubble 

light on top of the truck's cab while completing his task. The 

worker was six to ten feet behind the truck on the shoulder of 

the road when he was struck. 

We observed in Randall that the specialized warning 

equipment and its relationship to the worker's task made use of 

the truck more than merely a means of transportation. 255 Va. 

at 67, 496 S.E.2d at 57. We concluded that the worker was 

"using" the insured truck when he was struck because he was 

utilizing the truck's specialized equipment to perform his 

mission. Id. at 67, 496 S.E.2d at 56-57. 

In Cassell, a fire fighter was standing 20 to 25 feet away 

from the fire truck when he was struck and killed by a car. The 

insured fire truck had transported to the scene both the fire 

fighter and the equipment used to fight the fire. The truck 

6
also was used at the scene as a physical barrier to restrict 

traffic flow. At the time the fire fighter was struck, he was 

using a writing pad and a clipboard that he had taken from the 

truck to complete a required fire incident report. We concluded 

that the fire fighter was "using" the fire truck at the time of 

the accident because the truck was an integral part of the fire 

fighter's mission, which had not been completed when the 

accident occurred. 239 Va. at 424, 389 S.E.2d at 477. 

Like the highway worker in Randall and the fire fighter in 

Cassell, Edwards was using the insured vehicle's equipment at 

the time of the accident to perform his mission. That mission 

was to drive the car to a service station to have the flat tire 

repaired. An integral part of the mission required use of the 

jack to remove the flat tire and to place the spare tire on the 

vehicle. Thus, Edwards was in the process of performing a 

transaction essential to the use of the insured vehicle when he 

was struck. 

In using the vehicle's equipment to accomplish his mission, 

with the immediate intent to drive the vehicle after replacing 

the tire, Edwards was using the insured vehicle as a vehicle and 

as an integral part of his mission at the time of the accident. 

Thus, we conclude that there was a causal relationship between 

the accident and Edwards' use of the vehicle as a vehicle. See

7
Randall, 255 Va. at 66, 496 S.E.2d at 56; Cassell, 239 Va. at 

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

We disagree with GEICO's contention that Stern, as well as 

Perry, 204 Va. at 833, 134 S.E.2d at 418, compels us to reach a 

different conclusion. In Stern, we held that a school bus was 

used by its driver to create a safety zone for a child crossing 

the street to board the bus, and that the driver's employment of 

the safety devices did not constitute a use of the bus by the 

child. 252 Va. at 312, 477 S.E.2d at 520. In Perry, we 

concluded that a police officer, who was serving an arrest 

warrant when struck by an uninsured motorist, was not using his 

police cruiser at the time of the accident. We based this 

conclusion on the fact that the officer had removed the key from 

his vehicle, gotten out, and walked 164 feet away from the 

cruiser when he was struck. 204 Va. at 838, 134 S.E.2d at 421. 

Unlike Edwards in the present case, the injured persons in Stern

and Perry were not engaged in a transaction essential to the 

vehicle's use at the time of the accident. See Cassell, 239 Va. 

at 424, 389 S.E.2d at 477. Therefore, we answer the first 

certified question in the affirmative. 

We next consider the question whether Edwards was 

"occupying" the insured vehicle within the meaning of the Policy 

definition. The Policy defines "occupying" as meaning "in or 

upon or entering into or alighting from" the motor vehicle. We 

8
considered this same policy definition in Bristow, and we 

conclude that our decision in that case primarily governs the 

present issue whether Edwards was "occupying" the insured 

vehicle. In Bristow, a passenger in a truck had stopped to 

render assistance to the owner of a stalled vehicle. In 

attempting to restart the stalled vehicle, Bristow, the "Good 

Samaritan," leaned over the motor and reached with his hands to 

examine some of the wires. During the time that his legs were 

touching the car's bumper, a vehicle struck the stalled 

automobile from the rear. As a result of the impact, Bristow 

was "thrown over in the ditch" and injured. Bristow neither 

entered nor intended to enter the disabled vehicle. 207 Va. at 

382, 150 S.E.2d at 126. 

 In considering whether Bristow was "occupying" the stalled 

vehicle when he was struck, within the meaning of the policy 

definition, we concluded that the determinative question was 

whether Bristow was "upon" the stalled vehicle when he was 

injured. We observed that the word "upon" must be considered in 

relation to the word in the policy that it defines, namely, the 

word "occupying." We stated that "a person may be said to be 

'upon' a vehicle when he is in a status where he is not actually 

'in,' or is not in the act of 'entering into or alighting from,' 

the vehicle, but whose connection therewith immediately relates 

to his 'occupying' it." Id. at 385, 150 S.E.2d at 128. Based 

9
on this definition, we held that Bristow was not "upon" the 

stalled vehicle and, thus, was not "occupying" it because his 

touching of the vehicle was merely incidental to his act of 

assisting the driver of the disabled car. Id. 

 In Stern, we also considered the insurance policy term 

"occupying." In concluding that the injured child was not 

"occupying" the bus when she was struck "several" feet from the 

bus, we observed that the word "occupying" denotes "a physical 

presence in or on a place or object." 252 Va. at 311, 477 

S.E.2d at 519. 

Applying these principles, we conclude that Edwards' act of 

attempting to replace the tire on the insured vehicle was not an 

act immediately related to occupancy of the vehicle. Although 

Edwards ultimately intended to occupy the vehicle, his actions 

at the time of the accident immediately related to his attempt 

to change the flat tire. Further, Edwards' actions did not 

constitute a physical presence in or on the insured vehicle. 

Thus, Edwards was not "occupying" the insured vehicle at the 

time of the accident within the meaning of the GEICO policy 

definition, and we answer the second certified question in the 

negative. 

First certified question answered in the affirmative. 

Second certified question answered in the negative. 

10