246
Supreme
Court of
David
B. BUCHANAN
v.
John
DOE.
Record
No. 921159.
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).
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.
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.