Present: All the Justices
NATIONWIDE MUTUAL INSURANCE COMPANY
v. Record No. 992091
CLARENCE E. HYLTON, ET AL.
OPINION BY JUSTICE LEROY R. HASSELL, SR.
June 9, 2000
CLARENCE E. HYLTON
v. Record No. 992106
MARK DANIEL DEHART
FROM THE CIRCUIT COURT OF HENRY COUNTY
David V. Williams, Judge
I.
In these appeals, we consider whether a judgment in a
tort action may be entered against an insurance company that
issued an automobile liability insurance policy even though
the insurance company was not a defendant in the circuit court
proceedings; and whether a plaintiff's tort claims against a
defendant, who was a state trooper, are barred by the doctrine
of sovereign immunity.
II.
Plaintiff, Clarence E. Hylton, filed his motion for
judgment against Mark Daniel DeHart. A copy of the motion for
judgment was served upon Robert C. Wetzel, registered agent
for Nationwide Mutual Insurance Company (Nationwide). Hylton
alleged in his motion for judgment that he was injured as a
result of DeHart's negligent operation of a motor vehicle.
DeHart, a Virginia State Trooper, filed a grounds of defense
and a plea of sovereign immunity. DeHart asserted that while
he was operating his police cruiser, he observed an
unidentified driver of a truck commit a traffic violation,
that he made a decision to apprehend the violator, and that he
was in the process of determining the manner in which to
proceed when he was involved in the accident with Hylton. The
circuit court considered evidence relating to the plea of
sovereign immunity on the morning of the scheduled trial and
sustained the plea.
After sustaining the plea of sovereign immunity, the
circuit court permitted Hylton to proceed with his lawsuit
against Nationwide, which had issued an automobile liability
policy of insurance to Hylton that was in effect when the
accident that was the subject of Hylton's motion for judgment
occurred. Hylton did not name Nationwide as a party in his
motion for judgment, and Nationwide did not file any
pleadings. DeHart's counsel informed the circuit court that
he did not represent Nationwide, but was counsel of record
only for DeHart.
Hylton argued that Nationwide was in default, and since
DeHart's plea of sovereign immunity had been sustained,
neither DeHart nor his counsel had the right to participate in
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the trial of the case. The circuit court rejected Hylton's
arguments. Hylton presented evidence, the jury was
instructed, and counsel for Hylton and DeHart made closing
arguments. The jury returned a verdict in favor of Hylton in
the amount of $100,000, and the circuit court entered a
judgment confirming the verdict.
Once Nationwide learned that a judgment had been entered
against it, Nationwide filed a motion requesting that the
circuit court set aside that judgment because, among other
reasons, Nationwide was not a named defendant or party to the
tort action. Hylton opposed Nationwide's motion, and the
circuit court apparently took no action on the motion.
Nationwide appeals the circuit court's judgment confirming the
jury's verdict. Hylton appeals that portion of the judgment
sustaining the plea of sovereign immunity.
III.
Code § 38.2-2206(F) states:
"If any action is instituted against the owner
or operator of an uninsured or underinsured motor
vehicle by any insured intending to rely on the
uninsured or underinsured coverage provision or
endorsement of this policy under which the insured
is making a claim, then the insured shall serve a
copy of the process upon this insurer in the manner
prescribed by law, as though the insurer were a
party defendant. The provisions of § 8.01-288 shall
not be applicable to the service of process required
in this subsection. The insurer shall then have the
right to file pleadings and take other action
allowable by law in the name of the owner or
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operator of the uninsured or underinsured motor
vehicle or in its own name. Notwithstanding the
provisions of subsection A, the immunity from
liability for negligence of the owner or operator of
a motor vehicle shall not be a bar to the insured
obtaining a judgment enforceable against the insurer
for the negligence of the immune owner or operator,
and shall not be a defense available to the insurer
to the action brought by the insured, which shall
proceed against the named defendant although any
judgment obtained would be enforceable against the
insurer and any other nonimmune defendant. Nothing
in this subsection shall prevent the owner or
operator of the uninsured motor vehicle from
employing counsel of his own choice and taking any
action in his own interest in connection with the
proceeding."
Nationwide argues that a plaintiff who has filed an
action against a tortfeasor may not recover a judgment against
an automobile liability insurance carrier in that tort action.
Continuing, Nationwide asserts that even though Code § 38.2-
2206(F) gives it a right to file pleadings in an action
against an uninsured or underinsured tortfeasor, this statute
does not authorize the entry of a judgment against an
insurance company that issued a policy of insurance that may
satisfy a judgment that may be entered against the owner or
operator of the uninsured or underinsured motor vehicle.
Responding, Hylton asserts that Nationwide voluntarily failed
to take advantage of its right and opportunity to appear
conferred upon it by Code § 38.2-2206(F) and, therefore,
Nationwide has no right to complain of the judgment entered
against it. We disagree with Hylton.
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We have held that a plaintiff who files a tort action for
injuries caused by an owner or operator of an uninsured motor
vehicle cannot recover a judgment in that action against the
liability insurance company that may have a duty to pay the
judgment. We stated in Doe v. Brown, 203 Va. 508, 515, 125
S.E.2d 159, 164 (1962):
"This is not an action arising ex contractu to
recover against the insurance company on its
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."
See also Rodgers v. Danko, 204 Va. 140, 143, 129 S.E.2d 828,
830 (1963). Rather, the question whether an automobile
insurance company has a legal obligation to a plaintiff "may
be decided in an action ex contractu brought on the policy by
the interested judgment plaintiff, or in a declaratory
judgment proceeding to determine the rights of the parties."
Id.
Even though Code § 38.2-2206(F) gave Nationwide the right
to file pleadings and take any other action allowable by law
in the name of the owner or operator of the uninsured or
underinsured motor vehicle or in its own name, this statute
does not permit Hylton to obtain a judgment in this tort
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proceeding against Nationwide. And, the fact that
Nationwide's registered agent received a copy of the motion
for judgment does not permit the circuit court to enter a
judgment against Nationwide. Accordingly, we hold that the
circuit court erred by entering a judgment against Nationwide
in this proceeding.
IV.
A.
DeHart adduced the following evidence at the pretrial
hearing on his plea of sovereign immunity. DeHart was
employed as a Virginia State Trooper on August 2, 1996. In
that capacity, he was required to patrol Henry County in his
police cruiser, enforce criminal laws, respond to requests for
assistance, issue citations for traffic violations, obtain and
execute search warrants, and perform special assignments.
DeHart was operating his police cruiser on August 2,
1996, while on duty. He was traveling south on Route 220 near
the intersection of Route 220 and Commonwealth Boulevard in
Henry County. The intersection is controlled by a traffic
light. When the traffic light was red, DeHart stopped his
vehicle behind a truck, which was operated by Hylton. When
the traffic light turned green, Hylton drove his truck through
the intersection, three or four car lengths in front of
DeHart's cruiser.
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As DeHart slowly proceeded through the intersection, he
saw an unidentified individual operating a pickup truck. The
unidentified driver of the pickup truck proceeded through a
red light and made a "wide right turn" onto Route 220. DeHart
testified that he observed the unidentified operator of the
pickup truck drive onto Route 220
"and that lane would have had a red light. [The
unidentified driver] came out and did not slow down
very much, came into the right lane and made a wide
turn.
"At that point I was looking in my rear view
mirror to get over in the right lane. I was going
to stop that vehicle, and at that point I heard
tires squeal in front of me. I saw the vehicle stop
abruptly in the left lane and I proceeded to try to
stop, but did not have enough distance and impacted
with Mr. Hylton."
Sergeant C. William Murphy, DeHart's supervisor,
testified that DeHart's duties were to enforce traffic and
criminal laws in Henry County as well as elsewhere in the
Commonwealth of Virginia. DeHart testified that he exercises
discretion and judgment when deciding whether to pursue
traffic violators.
B.
Hylton argues that the circuit court erred by sustaining
DeHart's plea of sovereign immunity because he was merely
operating his motor vehicle and that such act does not "clothe
[him] with the defense of sovereign immunity." We disagree.
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In Colby v. Boyden, 241 Va. 125, 128-29, 400 S.E.2d 184,
186-87 (1991), we discussed the test that we apply when
determining whether a governmental employee is entitled to the
protection of sovereign immunity. We held that we must
consider "(1) the nature of the function the employee
performs; (2) the extent of the government's interest and
involvement in the function; (3) the degree of control and
direction exercised over the employee by the government; and
(4) whether the act in question involved the exercise of
discretion and judgment." Id. at 129, 400 S.E.2d at 186-87.
See also Gargiulo v. Ohar, 239 Va. 209, 212, 387 S.E.2d 787,
789 (1990); Lentz v. Morris, 236 Va. 78, 82, 372 S.E.2d 608,
610 (1988); Messina v. Burden, 228 Va. 301, 313, 321 S.E.2d
657, 663 (1984); James v. Jane, 221 Va. 43, 53, 282 S.E.2d
864, 869 (1980).
In Colby, we applied this test to determine whether a
police officer, who was involved in an accident while in
pursuit of a traffic violator, was entitled to the bar of
sovereign immunity to defeat the tort claims asserted by a
plaintiff who was injured in the accident. We stated:
"Enforcement of traffic laws is not only a primary
governmental function of a municipality, but one in
which the municipality is inextricably involved
through financial, personnel, and policy
initiatives. A municipality enjoys sovereign
immunity for acts undertaken in furtherance of this
function. [The police officer] was involved in the
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performance of this function for the City of
Virginia Beach at the time of the accident, thereby
satisfying the first two elements of the test.
. . . .
"Unlike the driver in routine traffic, the
[police] officer must make difficult judgments about
the best means of effectuating the governmental
purpose by embracing special risks in an emergency
situation. Such situations involve necessarily
discretionary, split-second decisions balancing
grave personal risks, public safety concerns, and
the need to achieve the governmental objective. The
exercise of discretion is involved even in the
initial decision to undertake the pursuit . . . ."
Colby, 241 Va. at 129-30, 400 S.E.2d at 187. We concluded
that the circuit court properly ruled that the police officer
in Colby was entitled to the bar of sovereign immunity.
We hold that DeHart is entitled to the bar of sovereign
immunity. DeHart was involved in the enforcement of traffic
laws, which is a governmental function. And, the circuit
court implicitly made a finding of fact that when DeHart's
police cruiser collided with Hylton's vehicle, DeHart had made
a decision to pursue the unidentified motor vehicle operator
who had committed a traffic infraction, and DeHart had begun
to undertake the pursuit.
Contrary to Hylton's assertions, DeHart was not involved
merely in the simple operation of an automobile when DeHart's
vehicle collided with the rear of Hylton's vehicle. In Heider
v. Clemons, 241 Va. 143, 145, 400 S.E.2d 190, 191 (1991), we
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held that a deputy sheriff, who was involved in an accident
while driving his car, was not entitled to the bar of
sovereign immunity. The deputy sheriff had served process at
a residence in Fairfax, returned to his automobile, drove onto
a street, and collided with a motorcycle. The driver of the
motorcycle filed a negligence action against the deputy
sheriff, who pled the affirmative defense of sovereign
immunity. Id. at 144, 400 S.E.2d at 190.
Rejecting the deputy sheriff's assertion of the defense
of sovereign immunity in Heider, we stated:
"While every person driving a car must make myriad
decisions, in ordinary driving situations the duty
of due care is a ministerial obligation. The
defense of sovereign immunity applies only to acts
of judgment and discretion which are necessary to
the performance of the governmental function itself.
In some instances, the operation of an automobile
may fall into this category, such as the
discretionary judgment involved in vehicular pursuit
by a law enforcement officer. See, e.g., Colby v.
Boyden, 241 Va. 125, 400 S.E.2d 184 (1991) . . . .
However, under the circumstances of this case, the
simple operation of an automobile did not involve
special risks arising from the governmental
activity, or the exercise of judgment or discretion
about the proper means of effectuating the
governmental purpose of the driver's employer."
Id. at 145, 400 S.E.2d at 191. See also Wynn v. Gandy, 170
Va. 590, 197 S.E. 527 (1938) (defense of sovereign immunity
not available to school bus driver whose duty of driving a bus
to transport children did not involve judgmental discretion,
but was purely ministerial). In contrast to the deputy
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sheriff in Heider, DeHart was not merely engaged in routine
driving activities. Rather, at the time of the accident that
is the subject of this litigation, DeHart had made a decision
to apprehend a traffic violator, and DeHart was required to
exercise discretion and judgment in executing that action.
V.
Finding no merit in Hylton's remaining arguments, we will
affirm the judgment of the circuit court in Hylton's action
against DeHart. Also, we will reverse the circuit court's
judgment in Hylton's action against Nationwide and enter final
judgment here in favor of Nationwide.
Record No. 992091 — Reversed and final judgment.
Record No. 992106 — Affirmed.
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