Buchanan v. Doe

JUSTICE COMPTON,

with whom JUSTICE STEPHENSON 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 *78was 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 *79of 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, 350 S.E.2d 711, 713 (W. Va. 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, 373 S.E.2d 345 (W. Va. 1988), by asserting the case involves “a choice of law situation analogous to the case before us.” The case is not at all analogous.

In Lee, a Pennsylvania resident who was insured under a Pennsylvania insurance policy was injured in a no-contact accident in West Virginia allegedly caused by John Doe. Pennsylvania, unlike Virginia or West Virginia, is a “direct action” state and allows a direct action against the insurer by one claiming uninsured motorist benefits. Id. at 348. The insurance contract contained a physical contact requirement that was invalid under Pennsylvania law but valid under West Virginia law.

*80The West Virginia court construed the issue in the case as a contractual question relating to policy coverage, and not a tort question dealing with Doe’s legal liability. Thus, the West Virginia court analyzed the case under contract principles, applying the law of the state where the contract was issued. The West Virginia court expressly distinguished Perkins on the basis that Lee involved a contract question while Perkins had involved a tort issue. Id. at 349.

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.