Allstate Insurance Company v. White , 257 Va. 73 ( 1999 )

Present: All the Justices
ALLSTATE INSURANCE COMPANY
v. Record No. 980386 OPINION BY JUSTICE ELIZABETH B. LACY
January 8, 1999
RONALD P. WHITE
FROM THE CIRCUIT COURT OF FLUVANNA COUNTY
John R. Cullen, Judge
On the evening of December 24, 1994, Ronald P. White was
a passenger in a truck driven by Ronald C. Steele, Jr. The
truck was traveling westbound on Route 53, a two–lane highway
in Fluvanna County. White was severely injured when the truck
left the highway, traveled along a ditch line until it struck
a rock, became airborne, and landed upside down between two
trees. White and Steele were hospitalized.
White filed a motion for judgment against Steele and an
unidentified John Doe, seeking recovery for the damages he
sustained in the accident. White alleged that Steele was
reckless and negligent for failing to maintain proper control
of his vehicle and that John Doe negligently drove his vehicle
across the center of the highway, forcing Steele's vehicle off
the highway. White also served Allstate Insurance Company
(Allstate) pursuant to Code § 38.2-2206(E) because he was an
insured under the uninsured motorist provisions of a motor
vehicle liability policy issued by Allstate.
The jury returned a verdict in favor of both defendants.
On White's motions and over Allstate's objections, the trial
court set aside the verdict as to Doe, entered judgment
against Doe on the issue of liability pursuant to Code § 8.01-
430, and dismissed the motion for judgment against Steele.
The parties agreed to submit the issue of damages to the trial
court. Relying on the evidence produced at trial, the trial
court entered judgment against Doe in the amount of $250,000
with interest. Allstate appealed, seeking reinstatement of
the jury verdict in Doe's favor or, in the alternative, a new
trial on the issues of Doe's liability and damages. 1
On appeal, Allstate first contends that the trial court
erred in setting aside the jury verdict because the jury
reasonably could have inferred from the evidence that either
Doe did not exist or that he had not been negligent. In
reviewing Allstate's contention, we apply familiar principles.
Code § 8.01-430 authorizes a trial court to set aside a jury
verdict if it is plainly wrong or without credible evidence to
support it. Lane v. Scott, 220 Va. 578, 581, 260 S.E.2d 238,
240 (1979). On appeal, the judgment of a trial court setting
aside a jury verdict will be sustained if the record contains
no credible evidence to support the jury verdict, viewing the
1
White filed a notice of appeal from the judgment in
favor of Steele, but did not pursue that appeal.
2
facts and all reasonable inferences which may be drawn from
the facts in the light most favorable to the party receiving
the jury verdict. Rogers v. Marrow, 243 Va. 162, 166, 413
S.E.2d 344, 346 (1992).
The evidence relating to the cause of the accident comes
primarily from White's testimony. Although Steele pled guilty
to a charge of improper driving in connection with the
incident, he has no memory of the accident. There were no
other witnesses to the accident.
At the time of the accident, it was raining and dark and
the road was wet. The posted speed limit was 55 miles per
hour; White testified he thought Steele was driving 50 to 55
miles per hour. According to White, as Steele's vehicle came
out of a curve, White suddenly saw the glare of the headlights
of a vehicle traveling east that "looked like" it was coming
toward them in the westbound lane. White testified that, to
avoid a collision, Steele veered to the right, causing the
truck to leave the highway, become airborne and eventually
land upside down between two trees. White could not estimate
the speed of the Doe vehicle, did not know whether it was a
truck or a car, or where it was located on the roadway.
White also testified that he had been drinking beer
before he and Steele got into the truck. He testified that he
could not remember precisely how many beers he had consumed in
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the two-hour span before the accident, but that it might have
been as many as three. The state trooper who investigated the
accident testified that there were no skid marks or debris on
the highway.
According to Allstate, White's admitted consumption of
alcohol supports a conclusion that White's perception of the
details surrounding the accident was impaired by the alcohol
he had consumed and, thus, that his testimony was not
reliable. White's inability to identify anything about the
Doe vehicle and Steele's guilty plea to improper driving,
Allstate asserts, entitled the jury to conclude that there was
no vehicle driven by a John Doe and that the accident was not
caused by the negligence of an unidentified motorist. Either
conclusion required a verdict in favor of Doe, and, therefore,
Allstate concludes, the trial court erred in setting aside the
jury verdict in favor of Doe.
Citing Ragland v. Rutledge, 234 Va. 216, 219, 361 S.E.2d
133, 135 (1987), White responds that his testimony regarding
the cause of the accident and the existence of a vehicle
driven by John Doe was positive, uncontroverted, and credible
and, therefore, could not be disregarded by the jury.
However, that principle is not applicable in this case. It is
true that there was no positive testimony controverting
White's statements regarding the events surrounding the
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accident. The evidence relied upon by Allstate addresses the
reliability of White's testimony. As White notes, the trial
judge determined that White had "a reputation for truth and
honesty." The evidence relating to impaired perception
because of alcohol consumption does not impeach White's
character trait for telling the truth. Such evidence affects
the probative value of White's testimony by suggesting that,
at the time of the accident, his perception of the details and
events may have been impaired, and, therefore, that the
testimony was not reliable. 2
Having reviewed the record, we agree with Allstate and
conclude that the trial court erred in setting aside the jury
verdict. Based on the evidence recited above, the jury was
entitled to infer that White's perception of the circumstances
of the accident was impaired.
Furthermore, assuming that there was a Doe vehicle, there
is no direct evidence that Doe was negligent. The only
evidence bearing on the issue of Doe's negligence was White's
statement that, as the Steele vehicle came around the curve,
2
White also argues that the evidence of his alcohol
consumption was not admissible because Allstate failed to
provide a proper foundation showing the level of consumption
which would result in impairment of White's perception.
However, while White objected to questions relating to alcohol
consumption, that objection was overruled and White has not
assigned cross-error to that ruling. Therefore, we treat the
evidence as properly before the jury.
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White saw the glare of the Doe vehicle's headlights, and "[i]t
looked like he was on our side of the road considerably."
(Emphasis added.) Although there was an accident, there was
no collision between two vehicles which could provide evidence
of the location of the Doe vehicle. Nor were there any skid
marks or debris identifying the location of the Doe vehicle.
And finally, White's statement regarding the location of the
Doe vehicle was subject to the inference of impaired
perception stemming from White's alcohol consumption.
As noted by the trial court in refusing White's motion to
strike Allstate's evidence and to find Doe liable as a matter
of law, it was "a matter for the jury to decide whether or not
there — there was a John Doe driver at that particular scene
. . . and, if so, what came from that." We conclude that
there was evidence in this record to support a jury verdict in
favor of John Doe either because there was no John Doe vehicle
or because White failed to establish that John Doe was
negligent and that his negligence resulted in White's
injuries.
Accordingly, we will reverse the judgment of the trial
court and enter final judgment reinstating that portion of the
jury verdict in favor of John Doe. In light of this
determination, we need not address Allstate's remaining
assignments of error.
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Reversed and final judgment.
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