Buchanan v. Doe

JUSTICE LACY,

concurring.

While conflict of laws principles may be articulated clearly and without ambiguity, this case demonstrates that the application of those principles is neither simple nor direct. There is no disagreement that Virginia law is applied to determine whether the issue is one of tort or of contract, and which substantive law applies in either instance. The majority and the dissent cite case law to support their respective views, reaching mutually exclusive outcomes that each maintains is the only outcome possible. This result underscores the difficulty of resolving conflict of laws issues and I cannot agree that based on a reading of the prior authority either result is so clearly apparent.

The dissent finds that we are required to consider this solely as a tort action under Doe v. Brown, 203 Va. 508, 125 S.E.2d 159 (1962), disregarding the Court’s recognition in Doe that certain statutory and policy conditions, including notice and proof of physical contact requirements, were requisites of coverage and that coverage *75issues were matters of contract. Id. at 515, 125 S.E.2d at 164-65. The majority, on the other hand, does not address the precedential value of the Doe decision when the Court makes its threshold determination whether the issue at hand is one of tort or contract.

Citing Perkins v. Doe, 350 S.E.2d 711 (W.Va. 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, 373 S.E.2d 345, 348-49 (W.Va. 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. at 347. Recognizing that “uninsured motorist cases may raise questions of both tort and contract law,” id. 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. 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. 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 *76v. 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 211, 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.

*77Accordingly, I concur in the result reached by the majority and would reverse the decision of the lower court.

CHIEF JUSTICE CARRICO concurs in the result.