Bratton v. Selective Ins. Co. of Am., 776 S.E.2d 775

Roadwork on Route 419: Draper Paving subcontracted to haul and place hot asphalt; project required occasional lane closures and on-site safety measures.
Richard Slone drove a Draper Paving dump truck delivering asphalt to a front‑end loader; because of equipment changes, he periodically exited the truck to inspect/remove asphalt spillage.
James Harmon, Draper Paving superintendent, drove a company pickup to the site, parked it near the work zone with strobe and hazard lights on, and sometimes moved it forward as a safety buffer.
Shortly after midnight, two intoxicated drivers ran into the front‑end loader, which rotated into Slone’s dump truck; Slone was found pinned and died.
Dispute: whether Slone was "occupying" (policy defined as “in, upon, using, getting in, on, out of or off”) the dump truck and/or the pickup at the time of the collision, thereby triggering UM/UIM coverage under the Selective Insurance policy; related question on State Farm underinsured motorist payout.
The circuit court held Slone was not covered under the Selective policy; Bratton appealed; the Supreme Court reviewed contractual terms de novo but deferred to trial court fact findings unless plainly wrong.

Issue	Plaintiff's Argument (Bratton)	Defendant's Argument (Selective)	Held
Whether Slone was "getting out of" the dump truck when struck	Slone was still vehicle‑oriented and in the process of getting out (short interval, descended cab, moved toward rear tires) — so "occupying"	Slone had already exited and walked away; not "getting out of" at impact	Court held Slone was "getting out of" the dump truck under a totality‑of‑circumstances test and thus "occupying" it; coverage attaches
Whether Slone was "using" Harmon’s pickup (safety vehicle) at time of death	Pickup was employed as a safety vehicle (lights on, positioned to protect crew); Slone was using it as an integral part of the mission	Pickup was driven/parked and used by Harmon only; Slone neither drove, relied on, nor had authorization to use it; pickup was 200 ft away	Court held Slone was "using" the pickup because it served as a specialized safety vehicle integral to the mission; coverage attaches
Effect on subordinate insurer (State Farm) underinsured motorist payout	If Selective covers, State Farm owes full $100,000 underinsured limit	If Selective does not cover, State Farm owes only $50,000 as second‑priority carrier	Because Selective covers, State Farm must pay the full $100,000 underinsured limit

Slagle v. Hartford Ins. Co., 267 Va. 629 (Va. 2004) (establishes "use" requires causal relationship between incident and employment of insured vehicle; vehicle must be integral to mission)
Insurance Co. of North America v. Perry, 204 Va. 833 (Va. 1964) (user who left vehicle far away was not "using" the vehicle)
United States Fire Ins. Co. v. Parker, 250 Va. 374 (Va. 1995) (employee 12–15 feet from truck digging was not "using" it despite truck serving as barrier)
Great Am. Ins. Co. v. Cassell, 239 Va. 421 (Va. 1990) (firefighter was "using" firetruck positioned with lights on to protect crew)
Randall v. Liberty Mut. Ins. Co., 255 Va. 62 (Va. 1998) (road‑work employee was "using" employer truck equipped with flashing light and authorized safety procedures)
Stern v. Cincinnati Ins. Co., 252 Va. 307 (Va. 1996) (interpreting "occupying" and proximity requirement for "getting in/on")
Newman v. Erie Ins. Exch., 256 Va. 501 (Va. 1998) (clarifies aspects of "using" and "occupying" language)
State Farm Mut. Auto. Ins. Co. v. Powell, 227 Va. 492 (Va. 1984) (totality‑of‑circumstances approach for "use" analyses)