BRUCE LEVINE, Administrator of the Estate of Carlos Bolanos Castillo, deceased, Plaintiff - Appellant,
EMPLOYERS INSURANCE COMPANY OF WAUSAU, Defendant-Appellee, and MARCO A. GABARETTE, Plaintiff, and JESSICA LYNN COBLE; PURNELL FURNITURE SERVICES, INC.; PENSKE TRUCK LEASING COMPANY, INCORPORATED, Defendants. VIRGINIA TRIAL LAWYERS ASSOCIATION, Amicus Supporting Appellant, VIRGINIA ASSOCIATION OF DEFENSE ATTORNEYS, Amicus Supporting Appellee. MARCO A. GABARETTE, Plaintiff - Appellant, and BRUCE LEVINE, Administrator of the Estate of Carlos Bolanos Castillo, deceased, Plaintiff,
EMPLOYERS INSURANCE COMPANY OF WAUSAU, Defendant-Appellee, and JESSICA LYNN COBLE; PURNELL FURNITURE SERVICES, INC.; PENSKE TRUCK LEASING COMPANY, INCORPORATED, Defendants. VIRGINIA TRIAL LAWYERS ASSOCIATION, Amicus Supporting Appellant, VIRGINIA ASSOCIATION OF DEFENSE ATTORNEYS, Amicus Supporting Appellee.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee,
District Judge. (1:16-cv-00355-GBL-TCB)
Argued: January 23, 2018
C. Miller, WEINER, SPIVEY & MILLER, PLC; Kevin Michael
Leach, TURBITT, O'HERRON & LEACH, PLLC, Burke,
Virginia, for Appellants.
Ford Stephens, CHRISTIAN & BARTON, LLP, Richmond,
Virginia, for Appellee.
Dominick Michael Mullori, Jr., Woodbridge, Virginia, for
Amicus Virginia Trial Lawyers Association.
Alexander S. de Witt, FREEBORN & PETERS LLP, Richmond,
Virginia, for Amicus Virginia Association of Defense
WILKINSON, AGEE, and WYNN, Circuit Judges.
by published opinion. Judge Agee wrote the majority opinion,
in which Judge Wilkinson joined. Judge Wynn wrote a
Bolanos Castillo was killed and Marco A. Gabarette was
injured in a motor vehicle accident during the course of
their employment. Castillo's estate and Gabarette filed
declaratory judgment actions seeking coverage under the
uninsured/underinsured motorists endorsement of a third
party's insurance policy for payment of the wrongful
death and personal injury damages from the accident. The
district court held that the policy did not extend coverage
to Castillo's estate or Gabarette and granted summary
judgment to the insurer. They now appeal. Because the plain
language of the policy supports the district court's
determination, we affirm the judgment of the district court.
Furniture Services, Inc. ("Purnell"), a Virginia
company, hired Castillo and Gabarette (collectively, the
"Plaintiffs") as independent contractors to deliver
furniture in northern Virginia. Purnell regularly hired such
independent contractors to deliver its furniture in the
contractors' vehicles. For this particular delivery, the
originally scheduled contractors were unable to fulfill the
order, and Purnell inquired whether the Plaintiffs could do
the job. Due to Purnell's last-minute request, the
Plaintiffs did not have a sufficient vehicle available, so
Purnell permitted them to use a truck for that delivery that
Purnell had rented from Penske.
Gabarette drove the truck with Castillo as passenger. En
route to their destination, they pulled over on the side of
the interstate so Castillo could check on the security of the
furniture load. Another driver then struck the rented Penske
truck, killing Castillo and injuring Gabarette.
time of the accident, Purnell had a motor vehicle insurance
policy (the "Policy") issued by Employers Insurance
Co. of Wausau ("Wausau"), which includes an
("UIM") endorsement as required by the applicable
state law of Virginia. See Va. Code Ann. §
38.2-2206(A); see also id. § 38.2-2206(B)
(mandating that UIM coverage extend to "any person who
uses the motor vehicle to which the policy applies, with the
expressed or implied consent of the named insured"). The
Policy's "Schedule of Coverages and Covered
Autos" (i.e., the "Declarations Pages" or
"Schedule") lists the insurance coverages that
Purnell purchased. These coverages are identified on the
Declarations Pages as limited "to those autos shown as
covered autos." J.A. 68. Covered autos are designated by a
code listed next to a particular coverage on the Schedule,
and the "Motor Carrier Coverage Form" defines each
code. Under the Schedule, the Policy extends liability
coverage to all autos designated by code "61, "
which is defined as "Any Auto" on the Motor Carrier
Coverage Form. J.A. 134. However, for UIM coverage-as opposed
to liability coverage-the Schedule restricts covered autos to
those designated by code "62, " which the Motor
Carrier Coverage Form defines as "Owned Autos
Only." J.A. 134. The Policy lists only three vehicles on
the "Schedule of Covered Autos You Own, " none of
which are the rented Penske truck.
Declarations Pages also reference the UIM endorsement for the
limits of that particular coverage, which provides that
Wausau would "pay in accordance with the Virginia
Uninsured Motorists Law, all sums the insured is legally
entitled to recover as damages from the owner or operator of
an uninsured motor vehicle." J.A. 105. For UIM purposes,
an insured party is defined as "[a]nyone . . . occupying
a covered auto." J.A. 105. The UIM endorsement defines
"covered auto" as "a motor vehicle, or a
temporary substitute, with respect to which the bodily injury
or property damage liability coverage of the policy
applies." J.A. 104.
estate and Gabarette filed separate suits against the alleged
negligent driver in the Fairfax County, Virginia, Circuit
Court. Because of the driver's limited
insurance coverage, the Plaintiffs also brought an action in
the same state court against Wausau for a declaration as to
UIM coverage under the Policy and their entitlement to that
coverage. Wausau removed the declaratory judgment action to
the U.S. District Court for the Eastern District of Virginia
on the basis of diversity jurisdiction pursuant to 28 U.S.C.
§ 1332. Wausau and Castillo's estate filed
cross-motions for summary judgment.
district court granted Wausau's motion for summary
judgment and denied Castillo's estate's motion
regarding UIM coverage. Applying Virginia law, the district
court analyzed the Policy and held that the plain language of
its terms dictated that the UIM coverage applied only to
those vehicles that Purnell owned. Because Purnell did not
own the Penske truck, it was not a "covered auto, "
and therefore the Plaintiffs were not entitled to UIM
Plaintiffs filed a timely notice of appeal, and we have
jurisdiction pursuant to 28 U.S.C. § 1291.
review a district court's decision to grant summary
judgment de novo. OpenRisk, LLC v. Microstrategy Servs.
Corp., 876 F.3d 518, 527 (4th Cir. 2017). "Summary
judgment is appropriate when there are no genuine issues of
material fact and the moving party . . . is entitled to
judgment as a matter of law." Id. The facts in
this case are not in dispute.
Because this case was removed to federal court pursuant to
diversity jurisdiction, we apply Virginia law, which governs
any substantive issues. Stahle v. CTS Corp., 817
F.3d 96, 99-100 (4th Cir. 2016) ("Because federal
jurisdiction in this matter rests in diversity, our role is
to apply the governing state law."). Courts in Virginia
apply traditional principles of contract interpretation when
reviewing insurance policies. TravCo Ins. Co. v.
Ward, 736 S.E.2d 321, 324 (Va. 2012). The intent of the
parties is the focus of the inquiry. Id. at 325. A
court will construe unambiguous terms of the policy according
to their plain meaning. Id. Importantly, no contract
provision "will be treated as meaningless if a
reasonable meaning can be given to it, and there is a
presumption that the parties have not used words
needlessly." Id. Indeed, "[e]ach phrase
and clause of an insurance contract should be considered and
construed together and seemingly conflicting provisions
harmonized when that can be reasonably done, so as to
effectuate the intention of the parties as expressed
therein." Id.; accord Nationwide Mut. Ins.
Co. v. Akers, 340 F.2d 150, 154 (4th Cir. 1965)
("To construe each clause or endorsement in isolation
and without reference to the other policy provisions would do
violence to basic contract law for insurance contracts, like
other contracts, must be read and construed as a whole and
insurance policy is ambiguous, however, it is
ordinarily construed against the insurance company. St.
Paul Fire & Marine Ins. Co. v. S.L. Nusbaum &
Co., 316 S.E.2d 734, 736 (Va. 1984) ("The courts,
accordingly, have been consistent in construing the language
of such policies, where there is doubt as to their meaning,
in favor of that interpretation which grants coverage, rather
than that which withholds it. Where two constructions are
equally possible, that most favorable to the insured will be
adopted. Language in a policy purporting to exclude certain
events from ...