Present: All the Justices 

JOHNNY CALVIN NEWMAN, ET AL. 

v. Record No. 980025 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 November 6, 1998 

ERIE INSURANCE EXCHANGE 

FROM THE CIRCUIT COURT OF HENRY COUNTY 

Martin F. Clark, Jr., Judge 

 This appeal of a declaratory judgment presents two issues 

of motor vehicle insurance coverage involving a child who was 

struck by a motor vehicle while walking across a highway to 

board a school bus. 

 The facts in the case are undisputed. One morning in 

February 1993, seven-year-old Johnny Calvin Newman waited for 

his assigned school bus alongside the eastbound lane of Route 57 

in Henry County. Route 57 is a two-lane highway at this 

location. The bus came to a stop in the westbound lane, across 

the road from Johnny. The bus driver activated the bus' warning 

lights and its "stop arm." To board the bus, Johnny had to walk 

across the eastbound lane of Route 57 and then cross in front of 

the bus. As Johnny was walking across the eastbound lane, he 

was struck by a motor vehicle operated by Ephriam Drake Sayers. 

 The school bus, which was owned by the Henry County School 

Board, was insured under the Board's "commercial automobile 

liability" insurance policy issued by Erie Insurance Exchange 

(Erie). The policy listed the Henry County School Board as the 
named insured and included within its uninsured/underinsured 

motorist (UM/UIM) coverage "anyone while occupying" a vehicle 

insured under the policy. The policy defined "occupying" as "in 

or upon, getting into or out of, or getting off." The policy 

also was subject to Code § 38.2-2206, which mandates UM/UIM 

coverage for, among others, "any person who uses the motor 

vehicle to which the policy applies, with the expressed or 

implied consent of the named insured." 

 Johnny, by his parents and next friends Randall and Brenda 

Newman, filed a motion for judgment seeking damages for personal 

injuries against, among others, the personal representative of 

Sayers' estate, the school bus driver, and the School Board. 

Pursuant to Code § 38.2-2206(F), a copy of the motion for 

judgment was served on Erie as an insurer providing potential 

UM/UIM coverage. 

 Erie filed a bill of complaint for declaratory judgment, 

asking the trial court to declare that Johnny was not an insured 

under the UM/UIM provisions of the School Board's policy. For 

purposes of determining the availability of UM/UIM coverage, 

Erie and the Newmans stipulated the above-stated facts 

concerning how the accident occurred. They further agreed that 

at the time of the accident, Johnny was not riding the bus as a 

passenger, was not a guest in the bus, and was not a named 

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insured or family member residing in the same household as a 

named insured. 

 Erie moved for summary judgment, arguing that no material 

facts remained in dispute and that it was entitled to judgment 

as a matter of law based on this Court's decision in Stern v. 

Cincinnati Insurance Company, 252 Va. 307, 477 S.E.2d 517 

(1996). The trial court granted the motion for summary judgment 

and entered an order concluding that Johnny was not an insured 

under the UM/UIM provisions of the Erie policy. The court 

stated in its order that Johnny was not "using, occupying, 

getting on or getting off of the school bus at the time of the 

accident, as per Stern v. Cincinnati Insurance Company." 

 On appeal, the Newmans argue that Johnny was "occupying" 

the school bus at the time of the accident, as that term is 

defined in the Erie policy. They assert that since a school bus 

is a specialized type of vehicle, the differences involved in 

boarding that type of vehicle must be recognized when 

interpreting this policy term. They contend that the term 

"getting into" an insured vehicle, considered in the context of 

boarding a school bus, encompasses the very activity in which 

Johnny was engaged. 

 The Newmans also argue that Johnny was "using" the school 

bus at the time of the accident, within the meaning of 

Code § 38.2-2206. They contend that since Johnny was struck 

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while walking across the road after the bus driver had activated 

the bus' specialized safety devices, he was using those devices 

and was injured while engaged in an activity essential to the 

use of the bus as a vehicle. 

 In response, Erie argues that our decision in Stern

controls both issues raised in this case. Erie contends that 

the facts in Stern are indistinguishable from the facts 

presented here, and that the policy language at issue in that 

case was very similar to the policy language before us. Thus, 

Erie asserts that the doctrine of stare decisis requires a 

conclusion that Johnny was not occupying or using the school bus 

insured by Erie. 

 In considering these issues, we determine first whether 

Johnny was "occupying" the school bus under the terms of the 

Erie policy. As stated above, the policy defines "occupying" as 

"in or upon, getting into or out of, or getting off." The 

portion of the definition most applicable to the facts of this 

case is the term "getting into." The Newmans agree with Erie 

that the facts in Stern are indistinguishable from the facts 

before us. There, a child was struck and injured by an oncoming 

motorist while walking across a road to board a school bus. Id.

at 309, 477 S.E.2d at 518. To board the bus, the child was 

required to walk across one complete lane of traffic and then 

proceed in front of the bus that was stopped in the other lane. 

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She was struck in the lane opposite the lane in which the bus 

was stopped, two or three feet from the center line in the road. 

Id.

 Under policy language that defined "occupying" as "in, 

upon, getting in, on, out or off," we held that the child was 

not "occupying" the school bus. Id. at 310-11, 477 S.E.2d at 

519. We explained that the policy definition must be 

interpreted in relation to the term defined and stated that the 

word "occupying" "denotes a physical presence in or on a place 

or object." Id. at 311, 477 S.E.2d at 519. We held that, 

considered in this context, the terms "getting in" and "getting 

on" required a close proximity to the bus that was not 

demonstrated by the child's location since she was across the 

center line of the road from the bus when she was struck. Id.

 Under the facts before us, there is no material difference 

between the policy language at issue in Stern and the language 

of Erie's policy. When Johnny was struck, his location in the 

lane opposite the lane in which the bus was stopped did not 

place him in such close proximity to the bus as would constitute 

a physical presence in or on it. See id. Thus, under the plain 

and ordinary meaning of the terms in the Erie policy, Johnny was 

not "occupying" the school bus at the time he was struck. 

 In arguing that he was "using" the bus within the meaning 

of Code § 38.2-2206, Johnny acknowledges that acceptance of his 

5
position would require us to overrule the portion of Stern in 

which we concluded that the child was not using the bus when 

struck. There, we held that a bus driver used a bus and its 

equipment to create a safety zone for the child, but that "the 

safety measures did not constitute a use of the bus by [the 

child]." Id. at 312, 477 S.E.2d at 520. We stated that the 

child was not using the bus, within the meaning of Code § 38.2-

2206, at the time she was struck "because she was not yet a 

passenger of the school bus." Id. at 313, 477 S.E.2d at 520. 

In reaching this conclusion, we stated that our holding was 

governed by our prior decisions in Insurance Company v. Perry, 

204 Va. 833, 836, 134 S.E.2d 418, 420 (1964), and United States 

Fire Ins. Co. v. Parker, 250 Va. 374, 463 S.E.2d 464 (1995). 

Stern, 252 Va. at 312, 477 S.E.2d at 520. 

 Code § 38.2-2206(B) 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." The coverage mandated by the statute is limited to 

injuries that the permissive user sustained while actually using 

the insured vehicle. Edwards v. GEICO, 256 Va. 128, 132, 500 

S.E.2d 819, 821 (1998); Randall v. Liberty Mut. Ins. Co., 255 

Va. 62, 65, 496 S.E.2d 54, 55 (1998); Perry, 204 Va. at 838, 134 

S.E.2d at 421. In determining whether Johnny was actually 

"using" the school bus at the time he was injured within the 

6
meaning of Code § 38.2-2206, the relevant inquiry is whether 

"there was a causal relationship between the accident and the 

use of the insured vehicle as a vehicle." Edwards, 256 Va. at 

132, 500 S.E.2d at 821 (quoting Randall, 255 Va. at 66, 496 

S.E.2d at 56); accord Parker, 250 Va. at 377, 463 S.E.2d at 466; 

Travelers Ins. Co. v. LaClair, 250 Va. 368, 372, 463 S.E.2d 461, 

463 (1995). 

 We have illustrated the nature of this causal relationship 

in two groups of cases. The first group includes such cases as 

Stern, Parker, and Perry, in which we concluded that the injured 

persons were not "using" the vehicles in question within the 

meaning of Code § 38.2-2206. In Parker, a landscape gardener 

drove a pickup truck containing some tools and ornamental 

cabbage plants to the entrance of a residential development, 

where she parked the truck in a manner to provide a safety 

barrier from passing traffic. She left the truck door open in 

order to hear a two-way radio located inside the truck and was 

struck while planting the cabbages. We concluded that the 

gardener was not "using" the truck as a vehicle at the time she 

was injured by an uninsured motorist, because she was not 

"engaged in a transaction essential to the use of the pickup 

truck when she was injured." 250 Va. at 376-78, 463 S.E.2d at 

465-66. 

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 In Perry, we held that a police officer was not "using" his 

vehicle when he was struck and killed while attempting to serve 

a warrant. At the time he was struck, the officer had turned 

off the engine, left the vehicle, and was walking along a 

roadway 164 feet from his police cruiser. 204 Va. at 834, 134 

S.E.2d at 419. 

 The second group of cases discussing the causal 

relationship between an accident and the use of an insured 

vehicle as a vehicle includes such decisions as Randall and 

Great American Insurance Co. v. Cassell, 239 Va. 421, 389 S.E.2d 

476 (1990). In those cases, we concluded that the injured party 

was "using" the insured vehicle at the time of injury, within 

the meaning of Code § 38.2-2206. In Randall, a highway worker 

was struck and killed by a vehicle 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 assigned task. The worker was six to ten feet 

behind the truck on the shoulder of the road at the time he was 

struck. 255 Va. at 64, 496 S.E.2d at 55. We held that the 

worker was "using" the insured truck as a vehicle 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. 

8
 In Cassell, a fire fighter was standing 20 to 25 feet away 

from a fire truck when he was struck and killed by an uninsured 

motor vehicle. The insured fire truck had transported to the 

scene of the fire both the fire fighter and the equipment used 

to fight the fire. The truck also was used at the scene as a 

physical barrier to restrict the flow of traffic. At the time 

the fire fighter was struck, he was using a writing pad and a 

clipboard that he had removed 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 his mission, which had 

not been completed when he was struck and killed. 239 Va. at 

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

 In Randall, which we decided after Stern, we emphasized 

that 

actual use of the vehicle for purposes of UM/UIM 

coverage mandated by § 38.2-2206 is not restricted to 

the transportation function of a vehicle. If the 

injured person is 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. In this context, the use of a vehicle 

"as a vehicle" requires that at the time of the 

injury, the vehicle is being used in a manner for 

which it was specifically designed or equipped. 

255 Va. at 66, 496 S.E.2d at 56 (citations omitted). 

 Our holding in Randall raises a question in this case 

concerning our earlier holding in Stern. That question is 

9
whether there is coverage under Code § 38.2-2206 when an 

individual, who has not occupied an insured vehicle, utilizes 

the vehicle's specialized safety equipment as an integral part 

of performing his mission, with the immediate intent to occupy 

the vehicle. Applying the principles expressed in Randall, as 

well as those set forth in Edwards v. GEICO, 256 Va. 128, 500 

S.E.2d 819, we answer this question in the affirmative. 

 A school bus driver is required by regulation to activate a 

school bus' warning devices "to warn approaching traffic to stop 

and allow pupils to cross the highway safely." 8 VAC 20-70-80. 

This regulation, enacted pursuant to the Board of Education's 

authority under Code § 22.1-177, illustrates the fact that the 

school bus' warning devices are intended for the child's use. 

Therefore, there is a dual use of the bus' specialized safety 

equipment. The bus driver uses the bus' specialized safety 

equipment to warn approaching traffic to stop, and the child 

uses the safety equipment as an integral part of his mission of 

walking across the street to board the bus. 

 Our decision in Stern, however, recognized only the bus 

driver's use of the specialized safety equipment. The decision 

effectively equated "use" of the bus with occupancy by stating 

that the child "clearly was not utilizing the 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 

10
§ 38.2-2206, when she was injured." 252 Va. at 313, 477 S.E.2d 

at 520. 

 In no other case have we held that "use" of an insured 

vehicle, under Code § 38.2-2206, requires that an injured party 

be an occupant of the insured vehicle at some time prior to 

sustaining an injury. Moreover, we held to the contrary in 

Edwards, our most recent case addressing "use" of an insured 

vehicle under Code § 38.2-2206. There, a man was injured in the 

process of removing a flat tire from an automobile owned by an 

acquaintance. He did not drive or ride in the insured vehicle 

prior to being struck by the uninsured vehicle. Instead, he was 

using the insured vehicle's tire jack and spare tire to change 

the tire with the intention of driving the car to have the flat 

tire repaired. We concluded that he was "using" the insured 

vehicle, within the meaning of Code § 38.2-2206, because he 

utilized the insured vehicle's equipment as an integral part of 

his mission with the immediate intent to drive the vehicle after 

replacing the tire. 256 Va. at 133, 500 S.E.2d at 821.*

 *

 Unlike the present case, the facts presented in Edwards

did not place our ruling in Stern before us for reconsideration. 

In Edwards, we were presented with two certified questions from 

the United States Court of Appeals that did not involve the use 

of an insured vehicle's specialized safety equipment by the 

injured motorist. Thus, in restating the ruling in Stern that 

the child was not using the bus, we were not addressing the 

merits of that decision, but were stating only why that holding 

was inapplicable to the facts in Edwards. 

11
 In light of Randall and Edwards, we are compelled to 

overrule the holding in Stern that a child injured under the 

facts presented was not "using" the school bus, within the 

meaning of Code § 38.2-2206. Thus, under the facts now before 

us, we conclude that Johnny was using the school bus as a 

vehicle at the time he was injured, based on his use of the bus' 

specialized safety equipment and his immediate intent to become 

a passenger in the bus. Those facts establish the required 

causal relationship between the accident and Johnny's use of the 

bus as a vehicle. 

In reaching this decision, we have given deliberate 

consideration to the critical role that the doctrine of stare 

decisis serves in insuring the stability of the law. See 

Selected Risks Insurance Co. v. Dean, 233 Va. 260, 265, 355 

S.E.2d 579, 581 (1987). However, we have a duty of equal 

dignity to reexamine critically our precedent and to acknowledge 

when our later decisions have presented an irreconcilable 

conflict with such precedent. See Nunnally v. Artis, 254 Va. 

247, 253, 492 S.E.2d 126, 129 (1997). 

Under Stern, only children who have exited a school bus 

under the protection of the bus' safety equipment could be 

entitled to UM/UIM coverage when injured in a lane opposite the 

lane in which the bus was stopped. Yet, children injured in the 

same location while walking across the street to board the same

12
bus under the protection of the same specialized safety 

equipment would be denied such coverage. Our action today also 

is taken to eliminate this paradox resulting from the 

application of Stern. 

 For these reasons, we will affirm in part, and reverse in 

part, the trial court's judgment. We will enter final judgment 

declaring that Johnny was "using" the school bus at the time of 

the accident, within the meaning of Code § 38.2-2206, and was 

entitled to coverage under the UM/UIM portion of the Erie 

policy. 

 Affirmed in part,

 reversed in part,

and final judgment.

JUSTICE COMPTON, with whom CHIEF JUSTICE CARRICO joins, 

dissenting. 

 "In Virginia, the doctrine of stare decisis is more than a 

mere cliché. That doctrine plays a significant role in the 

orderly administration of justice by assuring consistent, 

predictable, and balanced application of legal principles. And 

when a court of last resort has established a precedent, after 

full deliberation upon the issue by the court, the precedent 

will not be treated lightly or ignored, in the absence of 

flagrant error or mistake." Selected Risks Ins. Co. v. Dean, 

233 Va. 260, 265, 355 S.E.2d 579, 581 (1987). 

13
 Established precedents ought not to vary with every change 

in the appellate court's personnel. Kelly v. Trehy, 133 Va. 

160, 169, 112 S.E. 757, 760 (1922). Frequent overruling of an 

appellate court's decisions tends to bring adjudications of the 

tribunal "into the same class as a restricted railroad ticket, 

good for this day and train only." Smith v. Allwright, 321 U.S. 

649, 669 (1944) (Roberts, J., dissenting). Responsible 

decisionmaking leaves no room for "jurisprudence of doubt." 

Planned Parenthood v. Casey, 505 U.S. 833, 844 (1992). 

 In common law cases, the interest in stability demands 

uniformity and certainty, particularly when rules of property 

and contract have been established. W. M. Lile, Some Views On 

The Rule of Stare Decisis, 4 Va. L. Rev. 95, 101 (1916). Dean 

Lile expressed the doctrine of stare decisis in general terms: 

"A decision by a court of last resort, in a litigated 

controversy, on a question of law necessarily involved in the 

judgment, becomes a precedent within that jurisdiction, for 

subsequent cases involving substantially similar facts." Id. at 

97. 

 But the interest in stability is not the only interest 

stare decisis serves in common law cases. There are other 

concerns relating to the manner in which appellate judges decide 

cases. For example, "respect for precedent encourages the Court 

to be fair by reminding the Justices to treat like cases alike." 

14
Note, Constitutional Stare Decisis, 103 Harv. L. Rev. 1344, 1349 

(1990). Moreover, "respect for precedent helps promote public 

confidence in the law." Id. If an appellate court does not 

respect its own precedent, then the public, the bench, and the 

bar are less likely to have confidence in the decisions that are 

made. Furthermore, employing the doctrine of stare decisis 

assures the public that an appellate court's judgments are not 

arbitrary and that the court is controlled by precedent that is 

binding without regard to the personal views of its members. 

Id.

 Against the background of these settled principles, a bare 

majority of this Court, in a case construing a contract, today 

overrules a holding that is merely two years old. The accident 

facts here and in Stern v. Cincinnati Ins. Co., 252 Va. 307, 477 

S.E.2d 517 (1996), are substantially identical; the contract 

provisions are the same; and, the issues are identical. Yet a 

Court majority (including three members who were in the minority 

in Stern, and who ought to feel bound by it), strains to draw 

distinctions that make no difference and says that the holding 

on "use" in Stern should be jettisoned. I cannot agree. 

 The decision on that question of law was necessarily 

involved in the judgment in Stern and should be binding, as 

here, in a subsequent case with substantially similar facts. No 

flagrant error or mistake was made in Stern, which was decided 

15
after full deliberation upon the issue by the Court. 

Parenthetically, I note the "irreconcilable conflict" with the 

Stern precedent, mentioned by the majority, is created by the 

analysis it advances in this case. 

 Accordingly, I would affirm the declaratory judgment of the 

trial court in all respects. 

JUSTICE KOONTZ, dissenting. 

 I respectfully dissent. In my view, the sole issue 

presented in this appeal is whether case law subsequent to Stern 

v. Cincinnati Insurance Company, 252 Va. 307, 477 S.E.2d 517 

(1996), warrants reconsideration of the issues decided by that 

case. The majority, relying upon Randall v. Liberty Mut. Ins. 

Co., 255 Va. 62, 496 S.E.2d 54 (1998), and Edwards v. GEICO, 256 

Va. 128, 500 S.E.2d 819 (1998), reasons that this Court has 

adopted a more expansive view of what constitutes “using” an 

insured vehicle within the meaning of Code § 38.2-2206(B) and, 

thus, our holding in Stern has been called into question. I 

disagree. 

Randall dealt with an individual who was struck and killed 

by a vehicle while placing lane closure signs along the side of 

the highway. At that time, he was using the specialized safety 

equipment of the insured vehicle, which he had driven to the 

site, to create a safety zone in which to complete his assigned 

16
task. We held that these circumstances constituted a use of the 

insured vehicle with the meaning of Code § 38.2-2206(B). 

Randall, 255 Va. at 67-68, 496 S.E.2d at 57. 

 In Edwards, we held that an individual who was neither the 

driver nor a passenger of the insured vehicle was nonetheless 

“using” the vehicle within the meaning of Code § 38.2-2206(B) 

since he was using specialized equipment associated with the 

vehicle to change a flat tire on the vehicle. Moreover, when he 

was struck and injured by another vehicle, Edwards was in 

physical contact with the insured vehicle. We held that his 

utilization of the insured vehicle’s equipment coupled with his 

intent to drive the vehicle immediately after replacing the tire 

constituted “using” the vehicle within the meaning of Code 

§ 38.2-2206(B). Edwards, 256 Va. at 133, 500 S.E.2d at 821. 

 The underlying rationale of Randall and Edwards was that in 

each case the action of the injured person constituted a use of 

the insured vehicle within the meaning of Code § 38.2-2206(B) 

because there was a causal relationship between the accident and 

the use of the vehicle as a vehicle even though the actual use 

was unrelated to the transportation function of the vehicle. 

This was a logical extension of our decision in Great American 

Insurance Co. v. Cassell, 239 Va. 421, 424, 389 S.E.2d 476, 477 

(1990). However, nothing in Randall suggests that this 

rationale would apply to every individual injured while located 

17
within a safety zone created by specialized equipment of an 

insured vehicle. Nor does the application of this rationale in 

Edwards to a non-passenger, who was actually using specialized 

equipment while in physical contact with the vehicle, 

necessarily extend coverage under the statute to every 

individual who incurs an incidental benefit from specialized 

equipment of a vehicle. Indeed, both of these questions were 

previously resolved in Stern. 

 In Stern, the student, when injured, was within a safety 

zone created by the activation of the specialized safety 

equipment of the insured bus by the bus driver for the student’s 

benefit prior to completing her intended mission of becoming a 

passenger on the bus. Under those specific facts in Stern, we 

determined that the student was not “using” the school bus 

within the meaning of Code § 38.2-2206(B). Unlike the 

circumstances in Randall, the student in Stern was not within 

the safety zone as a user of the vehicle. Unlike the 

circumstances in Edwards, the student in Stern was not 

physically in contact with the vehicle, nor was she utilizing 

the bus’s specialized safety equipment in a manner that 

constituted a use of the vehicle as a vehicle. Thus, at the 

time of her injury, Stern was not yet “using,” within the 

meaning of Code § 38.2-2206, the bus she intended to board. The 

facts of the present case are indistinguishable from those in 

18
Stern, and accordingly, I would hold that our decision in Stern

remains viable and controls the outcome of the present case. 

 For these reasons, I would affirm the declaratory judgment 

of the trial court in all respects. 

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