UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NATIONWIDE MUTUAL INSURANCE 

COMPANY, an Ohio Corporation,

Plaintiff-Appellee,

v.  No. 01-1295

JO-ANNA SMELSER, Executrix of the

Estate of Mary B. Smelser,

Deceased; EUGENE SMELSER,

Defendants-Appellants. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Newport News.

James E. Bradberry, Magistrate Judge.

(CA-00-88-4)

Argued: September 27, 2001

Decided: July 12, 2002

Before WILKINS and WILLIAMS, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Reversed and remanded with instructions by unpublished per curiam

opinion. 

COUNSEL

ARGUED: Jeremiah A. Denton, III, Virginia Beach, Virginia, for

Appellants. Thomas Aubrey Fitzgerald, II, STEIN & SMITH, P.C.,

Newport News, Virginia, for Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM:

Jo-Anna Smelser and Eugene Smelser (collectively, the Smelsers)

appeal a district court’s1 order granting summary judgment to Nationwide Insurance Company (Nationwide) in this declaratory judgment

action brought by Nationwide. Nationwide sought a declaration that

it was not liable under the uninsured motorist provisions of a "Family

Automobile Policy" of insurance issued to Eugene Smelser (the policy or the Nationwide policy) for injuries sustained by Mary Smelser

when her purse was snatched by an unidentified assailant in a moving

vehicle. The only issue presented on appeal was whether, as a matter

of Virginia law, Mary Smelser’s injuries arose out of the "use" of the

car in which her assailant rode. Resolution of this issue required the

interpretation and application of Virginia law in circumstances not

previously addressed in the Virginia courts. Accordingly, we

requested that the Supreme Court of Virginia exercise its certification

jurisdiction pursuant to Article VI, Section 1 of the Virginia Constitution and decide whether Mary Smelser’s injuries arose out of the use

of the car in question. The Supreme Court of Virginia has answered

the certified question in the affirmative. We therefore reverse the

judgment of the district court in favor of Nationwide and remand this

case for entry of summary judgment in favor of the Smelsers.

I.

Mary Smelser, now deceased,2 was the wife of Eugene Smelser, the

holder of the Nationwide policy.3 On March 27, 1999, Mary Smelser,

1By consent of the parties, the decision below was rendered by a magistrate judge. 28 U.S.C.A. § 636(c). 

2Mary Smelser’s death was unrelated to the events recounted here. JoAnna Smelser is the executrix of Mary’s estate. 

3The facts recited here are those relied on by the Supreme Court of

Virginia in answering the certified question. 

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then 74, and her daughter, Jo-Anna Smelser, drove to the Williamsburg Outlet Mall in Virginia to go shopping. Jo-Anna Smelser parked

the car in the mall parking lot, and her mother exited from the passenger side. Mary Smelser walked from the side to the rear of the car and

turned to walk toward the mall. As she did so, a car driven by an

unknown male accelerated rapidly from behind her and pulled alongside her on her left. A second unknown male reached out from the

passenger-side window of the car and grasped Mary Smelser’s purse

by the strap, which she had slung over her left shoulder. The man

pulled the purse, and Mary Smelser with it, toward the interior of the

car. From this point, Mary Smelser was dragged by her purse strap

approximately ten feet alongside the car; she then fell to the ground.

Mary Smelser suffered fractures of her left shoulder and pelvis in

the incident. Two orthopaedic surgeons provided sworn affidavits in

which they opined that the extent of Mary Smelser’s injuries was consistent with her account of being pulled into the side of a moving

vehicle. One of the surgeons also opined that Mary Smelser’s injuries

were consistent with her account of being dragged approximately ten

feet, then dropped to a parking lot surface. 

II.

An endorsement to the Nationwide policy provides that Nationwide

will pay all sums that an insured is "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." (J.A. at 44.) The parties do not dispute that,

under the terms of the policy, Mary Smelser was an insured when her

injuries occurred. The vehicle in question was never identified, which

renders it an uninsured motor vehicle under the terms of the policy.

Thus the only issue in this appeal is whether, under Virginia law,

Mary Smelser’s injuries arose out of the "use" of an uninsured motor

vehicle under the uninsured motorist coverage clause in the policy. 

As noted above, because it was not clear whether under Virginia

law Mary Smelser’s injuries arose out of the use of an uninsured

motor vehicle in these circumstances, we certified the following question to the Supreme Court of Virginia: 

NATIONWIDE MUTUAL INS. v. SMELSER 3
Whether, under the facts [described above], Mary Smelser’s

injuries arose out of the use of an uninsured motor vehicle

for purposes of uninsured motorist provisions in the Nationwide policy? 

The Supreme Court of Virginia accepted the certified question and

answered it in the affirmative, stating that 

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. 

Nationwide Mut. Ins. Co. v. Smelser, No. 012841, 2002 WL 1270213,

at *4 (Va. June 7, 2002).4

III.

Because Mary Smelser’s injuries arose out of the use of an uninsured motor vehicle, the judgment of the district court in favor of

Nationwide must be reversed. The only issue in the proceedings

before the district court was whether those injuries arose out of the

use of the uninsured motor vehicle in question. Judgment should

therefore be entered for the Smelsers on remand. The order of the district court is 

REVERSED AND REMANDED WITH INSTRUCTIONS.

4The Supreme Court of Virginia’s opinion answering the certified

question contains the controlling analysis of Virginia law, and we need

not restate that analysis here. 

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