PRESENT: All the Justices 

NATIONWIDE MUTUAL INSURANCE 

COMPANY, AN OHIO CORPORATION 

v. Record No. 012841 OPINION BY JUSTICE BARBARA MILANO KEENAN 

 June 7, 2002 

JO-ANNA SMELSER, EXECUTRIX, ET AL. 

UPON A QUESTION 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 a 

question of Virginia insurance law. The certified question 

accepted by this Court asks whether a pedestrian, who was 

injured when her purse was "snatched" by an unidentified 

passenger in a moving vehicle, sustained injuries arising "out 

of the use of an uninsured motor vehicle for purposes of 

uninsured motorist provisions in [a certain insurance] policy." 

The facts as stated in the certification order are set forth 

below. 

 On March 27, 1999, Mary B. Smelser (Mrs. Smelser), then 74 

years old, was a passenger in an automobile driven by her 

daughter, Jo-Anna Smelser (Jo-Anna), from Virginia Beach to the 

Williamsburg Outlet Mall in Lightfoot. After Jo-Anna parked the 

car in the mall parking lot, Mrs. Smelser stepped from the 

passenger side of the vehicle, walked to the rear of the car, 

and turned toward the mall. Her purse hung from her left 
shoulder. Because it was raining outside, Jo-Anna momentarily 

remained in the vehicle to locate an umbrella. 

 Jo-Anna heard "the sound of tires spinning in water trying 

to get traction" and both Jo-Anna and Mrs. Smelser heard a "very 

loud" engine noise. At that moment, a car driven by an unknown 

male accelerated rapidly toward Mrs. Smelser. Another unknown 

male reached from the passenger-side window of the approaching 

car and grabbed the strap of Mrs. Smelser's purse, pulling Mrs. 

Smelser toward the vehicle. The male passenger dragged Mrs. 

Smelser about ten feet alongside the car before she fell to the 

pavement. The driver and passenger then fled from the scene in 

the automobile. 

 Mrs. Smelser sustained injuries as a result of this 

incident, including fractures of her left shoulder and pelvis. 

In her description of the incident, Mrs. Smelser stated that she 

was "whipped off the ground and pinned to the car, until her 

shoulder broke." She described hearing a "cracking sound" and 

feeling "a very severe sharp pain in her left shoulder" before 

she was "propelled" away from the vehicle. She did not know 

whether the vehicle actually struck her or dragged her. 

 Mrs. Smelser was insured under a motor vehicle liability 

insurance policy that her husband, Eugene J. Smelser, maintained 

with Nationwide Mutual Insurance Company (Nationwide). Because 

the driver of the car carrying the "purse-snatching" passenger 

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was unknown, Mrs. Smelser sought recovery under the uninsured 

and underinsured motorist (UM/UIM) provisions of her husband's 

insurance policy (the Nationwide policy). That policy required 

Nationwide to pay to Mrs. Smelser, "in accordance with Section 

38.2-2206 of the Code of Virginia," all sums that she was 

legally entitled to recover as damages from the driver of an 

uninsured vehicle for injuries resulting from "the ownership, 

maintenance or use" of the uninsured motor vehicle. 

 Mrs. Smelser filed a motion for judgment in the Circuit 

Court for the City of Virginia Beach against the unknown 

motorist, requesting damages under the above provisions of the 

Nationwide policy. In September 1999, Mrs. Smelser died from 

causes unrelated to the "purse-snatching" incident and Jo-Anna 

and Eugene qualified as executors of her estate (collectively, 

the executors). 

Nationwide filed a declaratory judgment action against the 

executors in the United States District Court for the Eastern 

District of Virginia seeking a declaration that Nationwide was 

not liable to provide coverage for Mrs. Smelser's injuries. The 

personal injury action in Virginia Beach was stayed pending the 

outcome of the declaratory judgment action. 

In the declaratory judgment action, Nationwide asserted 

that Mrs. Smelser was not entitled to coverage under the policy 

provision at issue because "the facts and circumstances of the 

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alleged incident do not constitute . . . 'use' of the motor 

vehicle" under Va. Code § 38.2-2206. Nationwide and the 

executors filed cross-motions for summary judgment. 

In support of their summary judgment motion, the executors 

submitted an affidavit from Richard T. Holden, M.D., Mrs. 

Smelser's orthopedic surgeon. In the affidavit, Dr. Holden 

stated an opinion within a reasonable degree of medical 

certainty that it was "highly unlikely" that Mrs. Smelser's 

injuries "were caused by a man seated in a stationary 

automobile." Dr. Holden further concluded that "her injuries 

were entirely consistent with . . . being forcibly pulled to a 

moving automobile, dragged approximately ten feet, and then 

dropped to a parking lot surface." 

 The executors also submitted an affidavit from Robert S. 

Neff, M.D., another orthopedic surgeon. Dr. Neff stated that 

after a review of Mrs. Smelser's medical records, it was his 

opinion within a reasonable degree of medical certainty that 

Mrs. Smelser's injuries "were not caused by a man seated in a 

stationary automobile." Dr. Neff concluded that, instead, Mrs. 

Smelser's injuries were "entirely consistent with a man in a 

moving vehicle grabbing [Mrs. Smelser] or her purse strap." 

 After hearing argument on the cross-motions for summary 

judgment, a magistrate judge granted Nationwide's motion and 

denied the executors' motion. The court held that the 

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circumstances leading to Mrs. Smelser's injuries did not 

constitute "use" of an uninsured motor vehicle under the UM/UIM 

provisions of the Nationwide policy. The executors appealed 

from this judgment to the United States Court of Appeals for the 

Fourth Circuit, which certified the present question of Virginia 

law to this Court. 

 The executors argue before this Court that Mrs. Smelser was 

entitled to coverage under the UM/UIM provisions of the 

Nationwide policy because the automobile carrying the unknown 

assailants was being used as a vehicle at the time she was 

injured. The executors assert that the assailants used the car 

to assist in stealing Mrs. Smelser's purse and to effect their 

escape. According to the executors' argument, the force of the 

moving vehicle dragged Mrs. Smelser before she fell onto the 

pavement and, thus, was a substantial factor contributing to the 

cause of her injuries. 

 In response, Nationwide contends that the outcome of the 

present case is controlled by our decisions in Lexie v. State 

Farm Mutual Automobile Insurance Company, 251 Va. 390, 469 

S.E.2d 61 (1996), and Travelers Insurance Company v. LaClair, 

250 Va. 368, 463 S.E.2d 461 (1995). Nationwide asserts that 

like the employment of the vehicles in those cases, the 

assailants' vehicle in the present case was being used as a 

fortress or an outpost from which they inflicted intentional 

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injury on another person. Nationwide also argues that the 

parties to the insurance contract did not contemplate the 

provision of UM/UIM coverage for criminal acts committed by a 

passenger in an uninsured vehicle.*

 Certain general principles govern this inquiry. Under Code 

§ 38.2-2206(B) and the terms of the Nationwide policy, a motor 

vehicle is an "uninsured motor vehicle" when the owner or 

operator of the vehicle is unknown. As Nationwide concedes, 

Mrs. Smelser, wife of the named insured residing in the same 

household with her husband, was an insured of the first class 

entitled to seek coverage under the policy's uninsured motorist 

provisions for injuries she sustained as a pedestrian. See

Insurance Co. of N. Am. v. Perry, 204 Va. 833, 836, 134 S.E.2d 

418, 420 (1964). 

In determining the scope of coverage provided under the 

Nationwide policy, we must consider the intention of the parties 

to the insurance contract as expressed in the policy terms, 

including those terms required by Code § 38.2-2206. See Lexie, 

251 Va. at 396, 469 S.E.2d at 64; LaClair, 250 Va. at 371-72, 

463 S.E.2d at 463. We will construe the contract provisions 

concerning "use" of a vehicle in accordance with the natural and 

 *

 Both Nationwide and Smelser agree that in answering the 

certified question, this Court need not address the issue 

whether there was a concert of action between the driver and the 

passenger of the unknown vehicle. 

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ordinary meaning of the terms employed. Id.; State Farm Mut. 

Auto. Ins. Co. v. Powell, 227 Va. 492, 500, 318 S.E.2d 393, 397 

(1984). 

 In order for an injury to be classified as arising from the 

"use" of a vehicle, there must be a causal relationship between 

the injury sustained and the employment of the motor vehicle as 

a vehicle. Edwards v. Government Employees Ins. Co., 256 Va. 

128, 130, 500 S.E.2d 819, 821 (1998); Randall v. Liberty Mut. 

Ins. Co., 255 Va. 62, 66, 496 S.E.2d 54, 56 (1998); Lexie, 251 

Va. at 396, 469 S.E.2d at 64; LaClair, 250 Va. at 372, 463 

S.E.2d at 463. However, such "use of the vehicle need not be 

the direct, proximate cause of the injury in the strict legal 

sense." Id. (quoting Powell, 227 Va. at 500, 318 S.E.2d at 

397). 

 In Lexie and LaClair, we examined the nature of this causal 

relationship in the factual context of criminal acts committed 

by occupants of uninsured vehicles. In Lexie, the parties 

seeking coverage under their uninsured motorist policy 

provisions were riding in a moving vehicle when they were 

injured in a "drive-by shooting" perpetrated by assailants 

occupying another moving vehicle. We explained that in 

determining uninsured motorist coverage, the main focus of the 

"use" inquiry is the "manner in which the vehicle, whether 

moving or stationary, is being employed, not upon the activity 

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or role of any assailant who may be in, upon, or around the 

uninsured vehicle." Lexie, 251 Va. at 396-97, 469 S.E.2d at 64. 

We held that the injured parties failed to establish that 

their gunshot wounds were sustained as a result of the uninsured 

vehicle being employed as a vehicle. Id. at 397, 469 S.E.2d at 

64. Instead, their injuries resulted solely from the activities 

of the assailants in the uninsured vehicle and the movement of 

that vehicle was only an incidental factor in the injuries that 

occurred. Thus, the evidence failed to demonstrate a causal 

relationship between the injuries sustained and the "use" of the 

vehicle as a vehicle. 

We likewise concluded in LaClair that such a causal 

relationship did not exist. There, a deputy sheriff was shot 

during a "traffic stop." His assailant was partially inside the 

uninsured vehicle when the shots were fired and the assailant 

used the stationary vehicle as a shield. We held that the 

natural and ordinary meaning of "use" of a motor vehicle did not 

include the utilization of the uninsured vehicle as a fortress 

or a shield. LaClair, 250 Va. at 373, 463 S.E.2d at 464. 

Unlike Lexie and LaClair, the present case involves the 

ordinary movement of a vehicle that was a direct cause, rather 

than a mere incidental aspect, of the injuries sustained. Here, 

the vehicle's movement and its resulting force were used to help 

wrest the handbag from Mrs. Smelser and to remove the assailants 

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from the scene of the crime. Mrs. Smelser's injuries were 

causally related to the employment of the uninsured vehicle as a 

vehicle because the force from the vehicle's movement directly 

contributed to her injuries. Thus, we conclude that Mrs. 

Smelser's injuries arose out of the "use" of the uninsured motor 

vehicle under the UM/UIM provisions in the Nationwide policy. 

For these reasons, we will answer the certified question in 

the affirmative. 

Certified question answered in the affirmative.

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