The Supreme Court of Virginia decided an interesting question in the context of a lawyer’s professional liability policy. In Bartolomucci v. Federal Ins. Co., 770 S.E.2d 451 (2015), an attorney attempted to get automobile liability coverage by claiming that when he had an accident while he was driving from his home to the law office he was thinking about work. The attorney, Christopher Bartolomucci (Bartolomucci) was involved in an automobile accident resulting in serious injuries to plaintiff Vu Vo (Vo). Vo filed a lawsuit against the attorney seeking $1M in damages. Bartolomucci’s vehicle was insured under a personal Allstate automobile policy with a $100,000 policy limit. Vo was unwilling to settle the suit within Allstate’s policy limits. Because Bartolomucci’s potential liability exceeded Allstate’s policy limits, he claimed that his vehicle fell within the scope of another insurance policy issued to his law firm, Hogan Lovells, US., LLC. Federal Insurance Company (Federal) insured the law firm.
The case went to trial and the matter was submitted to a jury on a special interrogatory asking the question of whether Bartolomucci was using his vehicle in Hogan Lovell’s business or personal affairs at the time of the collision. The jury responded “yes.” The Circuit Court then set aside the jury’s finding as not being supported by the evidence. Final judgment was entered in favor of Federal finding that the attorney’s use of the vehicle at the time of the collision was not covered.
The Federal policy provided $1M of coverage for “Covered Autos” which fell under symbol 9 of the policy. Symbol 9 described “Nonowned ‘Autos’ Only” and extended coverage, in part, to “‘autos’ owned by your . . . partners . . . but only while used in your business or your personal affairs.” Both Bartolomucci and Vo argued that the phrase “your business or your personal affairs” was ambiguous because the policy stated that the term “your” referred to Hogan Lovells which was a legal entity that could not have “personal” affairs. However, the Virginia Supreme Court rejected that interpretation as being too narrow of a construction of the policy because it ignored the context in which the language was used.
The Supreme Court of Virginia found that the Federal policy was an insurance contract executed by a legal entity to provide coverage in specific, limited circumstances for its employees and partners. When used in this type of policy, the ordinary understanding and meaning of the phrase “business affairs” referred to a legal entity’s income-producing activities, and “personal affairs” referred to a legal entity’s non-income-producing activities that benefit the business. 770 S.E.2d at 456-57. Because of this, the Court found that symbol 9 was not ambiguous just because it referred to the “personal affairs” of Hogan Lovells, a law firm.
The Court found that Bartolomucci’s use of his vehicle did not satisfy all of the requirements of the policy; specifically that nonowned vehicles were covered only if “used in Hogan Lovells’s business or Hogan Lovells’s personal affairs.” At the time of the collision, Bartolomucci was using his vehicle to commute from his home to Hogan Lovells’ office and therefore the vehicle was not being used in Hogan Lovells’ business or personal affairs at the time of the collision.
In an attempt to persuade the Court that Bartolomucci’s vehicle was being used in the business affairs of Hogan Lovells, both Bartolomucci and Vo emphasized to the Court two aspects of the commute that they felt was relevant. First, Bartolomucci’s home operated as a Hogan Lovells work location because Bartolomucci did not have set working hours and he was allowed and encouraged to work at his home where he would engage in the firm’s business “quite a lot.” Therefore, Bartolomucci contended that he was not commuting from home to work, but was instead traveling between work locations. Secondarily, Bartolomucci and Vo argued that the trip itself was more than a typical commute to work so that the drive was actually being made “in” Hogan Lovells’ business. To support this secondary claim, Bartolomucci argued that he had a Blackberry electronic device in his possession, that was used and paid for by the law firm, which was turned on and within his physical reach while he was driving in the car. Although Bartolomucci could not recall what he was thinking about at the time of the collision, he did testify that he habitually thought about work-related issues on his commute to work.
Addressing these aspects of the commute, the Supreme Court of Virginia first found that Bartolomucci was not involved in anything more than a typical commute from home to work which was not covered under the terms of the policy. The only work-related activity that Bartolomucci accomplished before leaving home was to check his work email and call his office voicemail. However, the record did not indicate that Bartolomucci read or responded to any work-related emails, that the voicemail itself was work-related, or that he billed his time for these activities during the commute. Other than the fact that Bartolomucci occasionally worked at home, the Court found that the record failed to show any relationship between the law firm and Bartolomucci’s home to establish that place as a Hogan Lovells work location.
The Court went on to state that merely having access to modern technology such as a Blackberry, which would allow Bartolomucci to conduct work activity if that device was used, did not transform an employee’s private activity into company business. Merely thinking about work did not make a commute “in” the business, as contemplated by Federal’s policy. Additionally, the record did not indicate that Bartolomucci billed for any activity or otherwise performed any work during his commute. He was not reimbursed for his commute. Therefore, the Court held that Bartolomucci’s use of his vehicle to drive from home to work did not fall within the coverage described in symbol 9 of the policy.
While someone might offer Bartolomucci a “penny for his thoughts,” what is clear is that insurance companies are not going to offer coverage to a lawyer who is simply thinking about work while he drives into the office or who might have physical access to his Blackberry or Smart Phone without actually conducting business. However, the Bartolomucci case does suggest that if Bartolomucci had in fact been on a telephone call that was business-related or was sending a business text that the result might have been different.
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