David B. BUCHANAN
Record No. 921159.
Pursuant to the provisions of
insurance policy and Code § 38.2-2206, Buchanan filed this action
in the court
below against the
truck driver as "John Doe," seeking damages for his
injuries and other losses. Following a stipulation by the parties and
Buchanan's answer to State Farm's request for admissions that reflected
facts recited above, State Farm filed a motion for summary judgment. In
of that motion, it relied upon a provision in the West Virginia UM
required proof of physical contact with the John Doe vehicle in a
John Doe tort action and contended that this requirement was a part of
substantive tort law of
The Virginia UM statute also provides that if the identity of the uninsured operator is unknown, he may be sued as "John Doe" and service of process may be made upon the insurance company "as though [it] were a party defendant." Code § 38.2-2206(E). Physical contact with the John Doe vehicle is not required to maintain this action under Buchanan's policy or Code § 38.2- 2206. John Doe v. Brown, 203
Buchanan was injured on
[Footnote 1]We quote and paraphrase the following pertinent provisions of the West Virginia UM statute.
Nor shall any [automobile liability insurance] policy or contract be so issued or delivered [in this state] unless it shall contain an endorsement of provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle.
West Virginia Code § 33-6-31(b) (1992) (emphasis added).
If the owner or operator of any motor vehicle which causes bodily injury ... to the insured be unknown, ... in order for the insured to recover under the uninsured motorist endorsement or provision, [the insured] shall:
(i) [report the occurrence to designated officials within a limited time after its discovery, unless it shall already have been investigated by the police];
(ii) [notify the insurance company within a limited time after the accident and permit it to inspect the insured's vehicle]; and
(iii) Upon trial establish that the motor vehicle, which caused the bodily
injury ... whose operator is unknown, was a "hit and run" motor vehicle, [that had physical contact with the insured's vehicle, and have process served upon the insurance company issuing the UM policy].
West Virginia Code § 33-6-31(e) (1992) (emphasis added).
"Tort" is also
defined as the violation of some duty owing to the plaintiff imposed by
law or otherwise. Generally, the "duty must arise by operation of law
not by mere agreement of the parties." Black's Law Dictionary 1335 (5th
ed. 1979). Stated differently, a "tort" is a "legal wrong
committed upon the person or property independent of contract."
The word "tort" has a settled meaning in
Secondly, both UM statutes expressly condition recovery in John Doe cases upon compliance with their respective protective provisions. Code § 38.2-2206 provides that "[r]ecovery under the [UM] endorsement or provisions shall be subject to the conditions set forth in this section." West Virginia Code § 33-6-31(e) (1992) provides that "in order for the insured to recover under the [UM] endorsement or provision, [the insured] shall [comply with a number of conditions including that of proof-of-contact]." We do not think what would otherwise be a contractual condition in the proof-of-contact requirement of the West Virginia UM statute is converted into an element of John Doe's breach of duty merely by providing that the contractual condition be fulfilled in the John Doe tort action. [footnote omitted]
Finally, if we construed the proof-of-contact requirement as State Farm suggests, the scope of a Virginia insured's UM coverage would depend upon the UM statutory provisions of each state in which a Virginia insured traveled, contrary to our understanding of the purpose of UM insurance.
The [UM] endorsement is the contract which the insurance company makes with the insured to protect him against the uninsured motorist. It is protection for which the insured has paid an additional premium and it follows the insured to the place of the accident outside of Virginia, just as the usual indemnity and collision provisions of an automobile insurance policy follow the car and protect the operator wherever the accident may occur.
For these reasons, we conclude
trial court erred in sustaining State Farm's motion for summary
Therefore, we will reverse the "Final Order of Dismissal," and remand
the case for further proceedings consistent with this opinion.
The liability under the statutory endorsement exists even though the accident happened in a State which has no uninsured motorist law like that of
Since Buchanan's UM policy was issued and delivered to him in Virginia where he resided, it is governed by Virginia law. Lackey, 209 Va. at 715, 167 S.E.2d at 133. Hence, the West Virginia proof-of-contact requirement is inapplicable in this action.
Citing Perkins v. Doe, 177 W.Va. 84, 350 S.E.2d 711 (1986), the dissent asserts that West Virginia clearly considers the physical contact requirement to be an element of its substantive tort law in cases of this type. However, in 1988, the West Virginia Supreme Court found, in a choice of law situation analogous to the case before us, that the provision was contractual by nature. Lee v. Saliga, 179 W.Va. 762, 373 S.E.2d 345, 348-49 (1988).
In Lee a Pennsylvania resident, injured in an automobile accident in West Virginia, brought a tort action against John Doe and others. Under West Virginia's question certification procedure, the Supreme Court considered whether the enforceability of the physical contact provision of West Virginia law should be "determined by the law of West Virginia, the situs of the accident, or of Pennsylvania, the situs of the insurance policy and the residence of the insured." Id. 373 S.E.2d at 347. Recognizing that "uninsured motorist cases may raise questions of both tort and contract law," id. 373 S.E.2d at 349, the West Virginia Court concluded that the contact requirement was governed by the law of the place of the insurance contract, a state which, like Virginia, did not require proof of physical contact to recover in a John Doe action. Id. 373 S.E.2d at 350. The Court acknowledged the apparent inconsistency between Perkins and Lee, but noted that the only question certified to it in Perkins, was whether Virginia or West Virginia tort law applied. It stated that, in Perkins, it did not, as in Lee, decide whether tort or contract law applied. Id. 373 S.E.2d at 349. Accordingly, that Court said that Perkins did not control the issues presented in Lee. Id.
Review of Doe, Perkins, and Lee, along with the other cases cited by the majority and the dissent, does not, in my opinion, lead to the inevitable result asserted by either. I do, however, believe that an important policy consideration forms a more persuasive and conclusive basis for reaching the majority result.
Even if, arguendo, this case involved only tort issues and West Virginia's substantive tort law (including the physical contact requirement) was applicable, Virginia conflict of law principles do not require that we necessarily apply the West Virginia provisions. "Comity does not require application of another state's substantive law if it is contrary to the public policy of the forum state." Willard v. Aetna Cas. & Sur. Co., 213 Va. 481, 483, 193 S.E.2d 776, 778 (1973).
In my opinion, applying West Virginia law to bar a Virginia resident from establishing the negligence of a John Doe motorist and recovering under the uninsured motorist provisions of an automobile liability policy solely because there was no physical contact between the vehicles is contrary to a significant public policy of this Commonwealth, as reflected in a broad range of Virginia's motor vehicle statutes, rules and regulations. Those statutes include the General Assembly's enactment of the uninsured motorist insurance coverage provisions of the Code. Code § 38.2-2206. These provisions mandate policy coverage to protect non-negligent motorists injured by the acts of negligent, but uninsured, motorists. The General Assembly specifically has extended this protection to Virginia insureds who are injured by negligent unknown motorists.
To restrict the Virginia insured's recovery against unknown motorists by imposing the physical contact rule punishes those drivers who attempt to avoid such contact, defeating the broader public policy to encourage safe driving. Applying the rule also places Virginia insureds at risk from negligent uninsured motorists whenever they leave the Commonwealth and subjects them to the requisites for recovery under the uninsured motorist provisions of each state in which they travel. Thus, they lose the full contractual benefits of their Virginia insurance policies, despite Virginia's articulated policy of protecting Virginia insureds against unknown, uninsured motorists whose negligence causes them injury.
I note that, in light of those recognized policy interests, this Court repeatedly has found that the uninsured motorist provisions must be construed broadly to provide the remedy they were intended to provide. See, e.g., Nationwide Mut. Ins. Co. v. Sours, 205 Va. 602, 606, 139 S.E.2d 51, 54-55 (1964); State Farm Mut. Auto. Ins. Co. v. Brower, 204 Va. 887, 892, 134 S.E.2d 277, 281 (1964). Further, if the accident had occurred in Virginia, there would be no question of Buchanan's right to proceed to establish John Doe's liability for his injuries. Indeed, if Buchanan had filed suit in West Virginia, based on the facts before us here, the courts of that state would not have applied the physical contact rule to bar his action. To preclude his suit here based on an unfortunate combination of lex loci and lex fori, in light of the policies involved, is dictated neither by choice of law rules nor the principles of comity.
Accordingly, I concur in the result reached by the majority and would reverse the decision of the lower court.
COMPTON, Justice, with whom STEPHENSON, Justice, joins, dissenting.
In June 1989, David B. Buchanan, a resident of the Commonwealth of Virginia, was injured while driving a motor vehicle in the State of West Virginia. Another motor vehicle, operated by an unknown driver, allegedly ran Buchanan's vehicle off the road. There was no physical contact between Buchanan's vehicle and the vehicle operated by the unknown driver.
In April 1991, Buchanan filed the present action in the court below naming "John Doe" as defendant. The plaintiff alleged that Doe was negligent in several particulars and that plaintiff was injured as the "direct and proximate result of the defendant's negligence." The plaintiff sought an award of damages against Doe in the amount of $100,000.
In accordance with the Virginia uninsured motorist statute, the plaintiff served process upon the insurer that had issued a policy of bodily injury liability insurance with an uninsured motorist endorsement covering the plaintiff's vehicle. Code § 38.2-2206(E). The insurer filed a responsive pleading in its own name generally denying the allegations of the motion for judgment.
Subsequently, in responses to requests for admissions, the plaintiff admitted that at the time of the alleged accident "no physical contact occurred between the motor vehicle driven by the plaintiff and the motor vehicle driven by the unknown operator." The insurer, in the name of John Doe as authorized by Code § 38.2-2206(E), then filed a motion for summary judgment. Upon consideration of the pleadings, the insurance policy, the responses to requests for admissions, and the argument of counsel, the trial court sustained the motion for summary judgment and dismissed the action.
This appeal presents an uncomplicated issue. Upon a proper application of settled law, the judgment of the trial court should be affirmed.
The case can be summarized very simply. This is a tort action seeking a money judgment based on negligence. Because the tort was committed outside Virginia, courts of the Commonwealth apply the traditional conflict of laws rule that the substantive tort law of the place of the wrong governs the Virginia action. The substantive West Virginia tort law required a plaintiff to prove physical contact between a John Doe vehicle and the vehicle or person of the plaintiff. Because the alleged tort involved no physical contact and because the applicable West Virginia substantive tort law precluded recovery against a John Doe defendant absent a showing of physical contact, the trial court correctly ruled that no material fact was genuinely in dispute, Rule 3:18, and that defendant was entitled to summary judgment.
Until today, Virginia law supporting the foregoing analysis has been clearly established. Unquestionably, this is a tort action, not a contract action. Pertinent to this case, 31 years ago this Court stated: "This is not an action arising ex contractu to recover against the insurance company on its [uninsured motorist] endorsement. The insurance company is not a named party defendant and judgment cannot be entered against it in this action. This is an action ex delicto, since the cause of action arises out of a tort, and the only issues presented are the establishment of legal liability on the unknown uninsured motorist, John Doe, and the fixing of damages, if any." Doe v. Brown, 203 Va. 508, 515, 125 S.E.2d 159, 164 (1962). See Code § 38.2-2206(H) ("nor may anything be required of the insured [plaintiff making a claim under the uninsured motorist endorsement] except the establishment of legal liability"). Accord Truman v. Spivey, 225 Va. 274, 278, 302 S.E.2d 517, 519 (1983).
And, the plaintiff's right "to bring this action to establish legal liability on the uninsured motorist and to recover damages is not given by the endorsement but by the [uninsured motorist] statute." Doe, 203 Va. at 516, 125 S.E.2d at 165. Indeed, the contractual obligation of an insurer providing uninsured motorist coverage arises only after the legal liability of the uninsured "John Doe" has been established by a tort judgment. State Farm Mut. Auto. Ins. Co. v. Kelly, 238 Va. 192, 195, 380 S.E.2d 654, 656 (1989); Willard v. Aetna Casualty & Sur. Co., 213 Va. 481, 482, 193 S.E.2d 776, 778 (1973).
The next inquiry becomes whether Virginia or West Virginia law is to be applied in this tort action. "In resolving conflicts of laws, the settled rule in Virginia is that the substantive rights of the parties in a multistate tort action are governed by the law of the place of the wrong." McMillan v. McMillan, 219 Va. 1127, 1128, 253 S.E.2d 662, 663 (1979). Accord Jones v. R.S. Jones & Assocs., 246 Va. 3, 431 S.E.2d 33 (1993), decided today.
Because the place of the wrong in this case was West Virginia, the final task must be to determine the West Virginia substantive law governing John Doe tort actions. West Virginia's statutory scheme creating a system for recovering damages caused by an uninsured motorist is similar to Virginia's system. See W.Va.Code § 33-6-31 (1992). As in Virginia, an insured under a West Virginia uninsured motorist endorsement who has been injured by an unknown motorist must first bring a John Doe action to establish Doe's legal liability to the insured. Under the West Virginia statute, the uninsured motorist coverage applies only to sums that the insured "shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle." W.Va.Code § 33-6-31(b). Paralleling the decisions of this Court, the Supreme Court of Appeals of West Virginia has held that the John Doe action initiated by a plaintiff under an uninsured motorist endorsement is an action in tort. Perkins v. Doe, 177 W.Va. 84, 350 S.E.2d 711, 713 (1986).
There is one significant difference, however, between West Virginia's uninsured motorist statute and Virginia's. West Virginia's statute specifies that John Doe is liable only if there has been physical contact between the John Doe vehicle and the insured or with the vehicle the insured was occupying at the time of the accident. W.Va.Code § 33-6-31(e)(iii). And the West Virginia Court has characterized this statutory requirement of contact as a rule of substantive tort law governing West Virginia accidents. Perkins, 350 S.E.2d at 714 n. 3.
The concurring opinion misconstrues Lee v. Saliga, 179 W.Va. 762, 373 S.E.2d 345 (1988), by asserting the case involves "a choice of law situation analogous to the case before us." The case is not at all analogous.
While distinguishing Perkins, the West Virginia court in Lee nevertheless reaffirmed that a " 'John Doe' suit ... is deemed to sound in tort," as previously explained in Perkins. Lee, 373 S.E.2d at 348. The West Virginia court in Lee also reasserted that the insured in a "John Doe" suit must be "legally entitled to recover" from the uninsured motorist before the insurer will be required to pay. Id. As previously discussed, an insured is not "legally entitled to recover" from the John Doe defendant under West Virginia's substantive tort law unless the insured can prove physical contact.
Because the present case is a tort action governed by the substantive law of West Virginia, and because there was no physical contact between the vehicles involved in this accident, I believe the trial court correctly decided that the defendant was entitled to summary judgment. Thus, I would affirm.
The decision to reverse the judgment below stems from the plurality's unfortunate refusal to accept the clear, settled law in this Commonwealth that this is a tort action, not a contract action.