WEST VIRGINIA RECORD

CHARLESTON - The West Virginia Supreme Court of Appeals, in a ruling Thursday, sided with an automobile insurer in a lawsuit brought by a driver who argued that the damage to his car was the result of Halloween hijinks and should've been covered.

Plaintiff Richard E. Lemaster appealed to the state's high court following a May 5, 2011 order of the Berkeley Circuit Court.

The circuit court granted summary judgment in favor of defendant GEICO General Insurance Company in a suit over the insurer's denial of uninsured motorist coverage for Lemaster's personal injury and property damage claims.

Lemaster claimed that an unknown individual drove a vehicle onto an overpass bridge and threw a pumpkin off, causing it to hit his vehicle as he drove by.

The incident occurred on Halloween night on Interstate 81 in Berkeley County.

Lemaster said after something hit his vehicle, he pulled over and looked back, but saw no one on the bridge. He then checked his vehicle and found that part of it was covered in pumpkin. He also noted that there was a dent just above his windshield.

The police officer who investigated also noted that the damage was to "the top portion of his windshield and the guard for the windshield."

Lemaster said he was never able to find out who did it and the police report reflected "no suspects at this time."

Lemaster's GEICO policy has uninsured motorist coverage, which provides $25,000 for bodily injury and $25,000 for property damage.

After GEICO denied uninsured motorist coverage for the incident, he filed a declaratory judgment complaint against the insurer seeking such coverage.

As both courts noted, although the incident occurred in West Virginia, the relevant insurance policy was issued in Virginia, and Virginia law controls coverage issues.

GEICO initially filed a motion to dismiss, but the circuit court denied that motion and discovery was conducted.

The insurer then filed a motion for summary judgment arguing that in order to determine if an injury arises from the "use" of a vehicle for uninsured motorist purposes under Virginia law, there must be a causal relationship between the injury sustained and the employment of the motor vehicle as a vehicle.

Using a vehicle as a platform from which to throw pumpkins does not constitute such "use" per GEICO, the insurer argued.

The circuit court granted summary judgment for GEICO, concluding there was no evidence that another vehicle was involved in the incident. The court referenced what Lemaster told the investigating officer -- that he had not seen anyone on the bridge as he approached it.

Lemaster therefore could only speculate that a vehicle was used to transport the pumpkin to the scene, the court said.

The circuit court also concluded that even if the petitioner had established proof that a vehicle had been involved, Lemaster's theory of the case did not establish that such a vehicle had been "used" within the meaning of the policy language.

The court cited Virginia case law, which indicates that where a vehicle is employed in a manner foreign to its designed purpose, there is no coverage under the uninsured motorist provisions "because the resulting injury does not arise out of the 'use' of the uninsured vehicle as a vehicle, but instead arises from its employment in a manner contemplated neither by its designers, its manufacturer, nor the parties to the insurance contract."

The state Supreme Court, in its three-page memorandum decision affirming the lower court's ruling, said it found "no substantial question of law and no prejudicial error."

Lemaster, it said, failed to establish any evidence that another vehicle was involved in the incident.

The Court said the circuit court also was correct in concluding that the use of a vehicle to throw the pumpkin would not amount to the "use" of a vehicle under the insurer's policy.

"The Court notes initially that there was no evidence that another vehicle was used in the incident," it wrote.

"Even if there were proof of involvement by a vehicle, the Court is persuaded that the circuit court properly applied Virginia law in finding that such activity as theorized by the petitioner in the present case would not constitute a 'use' of a motor vehicle."