Rivera v. Witt

Present: All the Justices

SHERNETTE L. RIVERA

v. Record No. 980712 OPINION BY JUSTICE ELIZABETH B. LACY
February 26, 1999
JOHNNY LEE WITT

FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
J. Samuel Johnston, Judge

In this appeal involving the uninsured motorist statute,

we consider whether John Doe and an insured motorist later

identified as John Doe are considered the same entity for

purposes of the statute of limitations.

Shernette L. Rivera (Rivera) filed a motion for judgment

on August 13, 1993 against John Doe, an unknown driver, for

injuries she sustained in an automobile accident on January

23, 1992. Pursuant to Code § 38.2-2206 (the uninsured

motorist statute), Rivera served a copy of the motion for

judgment on Colonial Insurance Company of California

(Colonial), her uninsured motorist insurance carrier. Rivera

subsequently learned that the John Doe motorist was "in all

probability" Johnny Lee Witt, and she filed a motion to join

Witt as a defendant on January 19, 1996. The trial court

entered an order granting Rivera's motion. The court also

non-suited Rivera's action against John Doe on the agreement

of counsel for Rivera and Colonial.

Witt then filed a plea in bar asserting that Rivera's

cause of action against him was barred because it was filed
beyond the two-year limitations period established by Code

§ 8.01-243. Rivera responded that under this Court's holding

in Truman v. Spivey, 225 Va. 274, 302 S.E.2d 517 (1983), her

amended motion for judgment was not time barred. Following a

hearing, the trial court determined that Truman was not

applicable and entered an order granting Witt's plea and

dismissing Rivera's motion for judgment with prejudice.

Rivera appealed.

Both parties acknowledge that the issue presented in this

case was not resolved in Truman. The Court in Truman held

that, for statute of limitations purposes, an unidentified

John Doe motorist and the later-identified uninsured motorist

are considered the same entity under Code § 38.1-381, the

predecessor of Code § 38.2-2206. 225 Va. at 279, 302 S.E.2d

at 519. Because they were the same entity, the Court

concluded, an amended motion for judgment adding the

identified uninsured motorist as a defendant was not barred by

the limitations period, even though the amendment was filed

after the expiration of that period. The Court specifically

declined to determine whether it would reach the same result

if the subsequently identified motorist were an insured

motorist. Id. at 281, 302 S.E.2d at 520.

Rivera argues we should apply the same analysis the Court

employed in Truman to the facts of this case. She contends

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that by applying that analysis we would reach the conclusion

that John Doe and the later-identified motorist, Witt, should

be considered the same entity for statute of limitations

purposes. We disagree.

Rivera's conclusion is premised on her contention that

the Court's analysis in Truman was concerned primarily with

considerations of prejudice. She argues that in resolving the

limitations issue, the Court in Truman determined that John

Doe and the later-identified uninsured motorist, Charles

Spivey, should be considered the same entity because doing so

would not offend the purposes of the statute of limitations

and because the actions of the plaintiff's uninsured motorist

insurance carrier in defending the John Doe "afforded a

substantial measure of protection" to Spivey. Id. at 280, 302

S.E.2d at 520. In this case, she asserts, Witt likewise has

suffered no prejudice and Colonial's actions in defending John

Doe afforded Witt and his insurer a substantial measure of

protection.

However, the analysis in Truman was not as limited as

Rivera characterizes it. Indeed, such an analysis, as

described by Rivera, would effectively create an exception to

the statute of limitations whenever a plaintiff could show

that a defendant is not prejudiced by permitting suit against

him after the limitations period has expired. This would be

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contrary to the established principle that statutes of

limitations are strictly enforced and must be applied unless

the General Assembly has clearly created an exception to their

application. Arrington v. Peoples Sec. Life Ins. Co., 250 Va.

52, 55, 458 S.E.2d 289, 290-91 (1995); see, e.g., Code § 8.01-

6 (providing that addition of new defendant relates back to

date of original filing under certain conditions). 1 While

prejudice may be a factor to be considered in applying these

statutory exceptions, a court is not free to generally engage

in considerations of prejudice to determine whether a statute

of limitations should be applied.

The Court's analysis in Truman did not focus on

prejudice, but on whether the uninsured motorist statute

treated the unidentified uninsured motorist, Doe, and the

subsequently identified uninsured motorist, Spivey, as the

same entity. The statute, as the Court observed, treated Doe

and Spivey as the same entity in some respects and as

different entities in other respects. The Court concluded,

however, that on the facts of that case, Spivey and Doe should

be treated as the same entity for statute of limitations

purposes on two primary grounds: first, the uninsured

motorist statute imposed liability on the plaintiff's

uninsured motorist insurance carrier for any judgment against

1
Rivera did not claim that she was entitled to relief

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an uninsured motorist, regardless of whether the identity of

the motorist was known or unknown; and second, the statute

afforded the uninsured motorist insurance carrier timely

notice of and the opportunity to defend against the claim in

which liability was sought to be imposed. Truman, 225 Va. at

279, 302 S.E.2d at 519-20. The Court in Truman then reviewed

the purposes of the statute of limitations to insure that

treating John Doe and Spivey as the same entities in that case

did not offend the traditional goals of such statutes. Id.

It was in this context that considerations of prejudice were

discussed.

If we apply the Truman analysis to resolve the

limitations questions in this case, our initial inquiry is

whether the uninsured motorist statute requires or supports

treating John Doe and Witt as the same entity for statute of

limitations purposes. The crucial distinction in our

consideration of the statute in this case is that, unlike the

later-identified motorist in Truman, Witt is an insured

motorist. 2

under Code § 8.01-6.
2
Rivera asserts that Witt's insurer is defending the case
under a reservation of rights and that it may eventually deny
Witt coverage, thereby making Witt an uninsured motorist under
the definitions contained in Code § 38.2-2206(B). We,
however, must consider this case in the factual posture
presented and, therefore, do not address the speculative
factual circumstance suggested by Rivera. Rivera does not
assert Witt is an underinsured motorist.

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 The uninsured motorist statute addresses the liability of

a plaintiff's uninsured motorist insurance carrier when an

uninsured or underinsured motorist as defined in the statute

is the alleged tortfeasor. It does not address personal

injury actions against an insured motorist and, for that

reason, there is nothing in the statute that imposes liability

on or provides procedural protections for the insured motorist

or his automobile liability insurance carrier. An insured

motorist may be affected by the provisions in subsection G of

the statute allowing suit to be filed against a subsequently

identified John Doe motorist during or after the conclusion of

the John Doe personal injury action; however, the statute

neither tolls nor extends the limitations period for bringing

subsequent suits. We conclude that there is nothing in the

uninsured motorist statute which suggests that, under the

facts of this case, Doe and Witt should be treated as the same

entity; therefore, the statute of limitations applies to each

of them individually.

Accordingly, we will affirm the judgment of the trial

court dismissing Rivera's amended motion for judgment against

Witt because it was filed beyond the limitations period.

Affirmed.

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