Buchanan v. Doe , 246 Va. 67 ( 1993 )

JUSTICE WHITING

delivered the opinion of the Court.

This is an uninsured motorist case involving a conflict of laws issue, and we must decide whether our law or West Virginia law controls.

State Farm Mutual Automobile Insurance Company (State Farm) issued an automobile liability policy in Virginia to David B. Buchanan, a resident of Clifton Forge. The policy contained the following uninsured motorist (UM) provision mandated by former Code § 38.1-381, the predecessor of Code § 38.2-2206 (the Virginia UM statute):

The company will pay in accordance with Section 38.1-381 of the Code of Virginia and all Acts amendatory thereof or supplementary thereto, all sums which the insured . . . shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured or property damage, caused by accident and arising out of the ownership, maintenance or use of such uninsured motor vehicle.

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 Va. 508, 516, 125 S.E.2d 159, 165 (1962) (construing the predecessor UM statute, Code § 38.1-381(e)).

Buchanan was injured on June 9, 1989, when a truck forced his car off U.S. Route 220 in West Virginia. There was no contact between the vehicles. Although the truck driver stopped at the scene, he did not identify himself. The truck driver indicated to Buchanan that he would call the police and an ambulance, but he did not return to the scene of the collision. Hence, Buchanan is unaware of the truck driver’s identity.

Pursuant to the provisions of his insurance policy and Code § 38.2-2206, Buchanan filed this action in the court below against the truck driver as “John Doe,” seeking damages for his injuries and other losses. Following a stipulation by the parties and Buchanan’s answer to State Farm’s request for admissions that reflected the facts recited above, State Farm filed a motion for summary judgment. In support of that motion, it relied upon a provision in the West Virginia UM statute that required proof of physical contact with the John Doe vehicle in a John Doe tort action and contended that this requirement was a part of the substantive tort law of West Virginia. ¹

Accordingly, State Farm contended, and the trial court agreed, that Buchanan could not recover from John Doe without proof of physical contact between his vehicle and John Doe’s vehicle. Therefore, the court sustained State Farm’s motion for summary judgment and entered a “Final Order of Dismissal.” Buchanan appeals.

The parties agree that under our conflict of law rules: (1) the law of the place of the wrong determines the substantive issues of tort liability, Jones v. R.S. Jones & Assocs., 246 Va. 3, 5, 431 S.E.2d 33, 34 (this day decided); McMillan v. McMillan, 219 Va. 1127, 1128, 253 S.E.2d 662, 663 (1979), and (2) generally, the law of the place where an insurance contract is written and delivered controls issues as to its coverage. Lackey v. Virginia Sur. Co., 209 Va. 713, 715, 167 S.E.2d 131, 133 (1969). The disagreement is whether the West Virginia proof-of-contact requirement is a matter of tort controlled by West Virginia law, or one of contract controlled by Virginia law.

The forum state applies its own law to ascertain whether the issue is one of tort or contract. See Forsyth v. Cessna Aircraft Co., 520 F.2d 608, 611 (9th Cir. 1975) (law of forum applied to decide if case is one of contract or tort); Willard v. Aetna Cas. & Sur. Co., 213 Va. 481, 482-83, 193 S.E.2d 776, 778 (1973) (law of forum state where UM policy issued that permitted direct action against UM insurer held substantive, not procedural). And, in doing so, the forum state applies a principle described as

an old technique which has recently acquired the new name of “depecage”. This refers to the process whereby different issues in a single case arising out of a single set of facts may be decided according to the laws of different states. This has always been the process when procedural matters were held to be governed by forum law and substantive questions by some other law, even when matters characterized as procedural had substantial outcome-determinative effect. It has always been understood also that different substantive issues could properly be decided under the laws of different states, when the choice-influencing considerations differ as they apply to the different issues. The new development in this area is the currently increased discussion and analysis of the old technique.

Robert A. Leflar, American Conflicts Law § 109, at 221-22 (3d ed. 1977) (emphasis added) (footnotes omitted).

Thus, we apply the law of the Commonwealth to determine whether the West Virginia proof-of-contact requirement is a matter of tort or contract. And, we have defined a tort in the following language:

The word “tort” has a settled meaning in Virginia. “A tort is any civil wrong or injury; a wrongful act (not involving a breach of contract) for which an action will lie.” Jewett v. Ware, 107 Va. 802, 806, 60 S.E. 131, 132 (1908) (internal quotation marks [and citation] omitted).

“Tort” is also defined as the violation of some duty owing to the plaintiff imposed by general law or otherwise. Generally, the “duty must arise by operation of law and not by mere agreement of the parties.” Black’s Law Dictionary 1335 (5th ed. 1979). Stated differently, a “tort” is a “legal wrong committed upon the person or property independent of contract.” Id.

Glisson v. Loxley, 235 Va. 62, 67, 366 S.E.2d 68, 71 (1988).

On the other hand, a contract is defined as “[a]n agreement between two or more persons which creates an obligation to do or not to do a particular thing.” Black’s Law Dictionary 322 (6th ed. 1990). Although not expressed in a written contract, a statutory requirement affecting the performance of the contract becomes a part of its terms just as if it had been incorporated therein. Harbour Gate Owners’ Ass’n v. Berg, 232 Va. 98, 105-106, 348 S.E.2d 252, 257 (1986). However, as noted, the proof-of-contact requirement is contained in the West Virginia UM statute, but not in the Virginia UM statute under which Buchanan’s UM policy was issued.

With these distinctions in mind, and applying Virginia law, we consider West Virginia’s proof-of-contact provision. Substantive tort law in West Virginia, as in Virginia, requires that the plaintiff prove he was injured by the negligence of the defendant. But there is nothing in the tort law of either state which requires that injury be accompanied by physical contact in order to impose liability on the defendant. Under West Virginia law, however, in order to recover from an insurance company under an uninsured motorist policy, the injured party must prove in the John Doe tort action that the injury was accompanied by physical contact. But, for several reasons, we conclude that this requirement is a matter of statutory law dealing with insurance contracts.

In the first place, this provision imposes no duty upon John Doe, nor is it intended to benefit any tort-feasor who runs another vehicle off the road. Indeed, had the identity of the truck driver been ascertained, and had he been uninsured, proof of contact would not have been required under the West Virginia UM statute. Therefore, we think that the proof-of-contact requirement is a contractual provision imposed by statute and adopted as a method of protecting UM insurers against their insureds’ fraudulent UM claims.

In Virginia, the General Assembly has employed a different method of protecting UM insurers in John Doe cases by conditioning recovery against such insurers upon a prompt report of the accident to the UM insurer or to law enforcement officials. Code § 38.2-2206(D). And we have held that this protective condition imposes a contractual duty upon the plaintiff having no relation to his John Doe tort action. John Doe v. Brown, 203 Va. 508, 515, 125 S.E.2d 159, 164-65 (1962); Hodgson v. John Doe, 203 Va. 938, 941, 128 S.E.2d 444, 446 (1962).

Secondly, both UM statutes expressly condition recovery in John Doe cases upon compliance with their respective protective provisions. Code § 38.2-2206 provides that “[Recovery 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-contactj.” 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.²

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 Virginia. Such liability, however, would be rendered unenforceable and worthless if the basic action against John Doe may be brought only where the accident happened and the State where it happened has no provision for such an action.

Hodgson, 203 Va. at 942-43, 128 S.E.2d at 447.

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.

For these reasons, we conclude that the trial court erred in sustaining State Farm’s motion for summary judgment. Therefore, we will reverse the “Final Order of Dismissal,” and remand the case for further proceedings consistent with this opinion.

Reversed and remanded.

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 injuiy ... 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).

2 We have previously considered other issues involving the UM insurer’s contractual liability in John Doe tort actions. Truman v. Spivey, 225 Va. 274, 279, 302 S.E.2d 517, 519 (1983) (John Doe and later discovered uninsured motorist held to be same party for purposes of statute of limitations because UM carrier’s contractual liability is the same whether the uninsured motorist is known or unknown); Hodgson, 203 Va. at 943, 128 S.E.2d at 447 (venue in John Doe tort action determined under general venue statutes as if action were against insurer in order to “permit the plaintiff to have the protection for which he has paid”).