REVI, LLC v. Chicago Title Insurance Co.

PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Millette,
S.J.
REVI, LLC
OPINION BY
v. Record No. 141562 JUSTICE WILLIAM C. MIMS
September 17, 2015
CHICAGO TITLE INSURANCE COMPANY
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Brett A. Kassabian, Judge
In this appeal, we consider whether Code § 38.2-209(A) requires a trial judge, rather than
a jury, to determine whether an insurer committed a bad faith breach of an insurance contract
warranting an award of attorney’s fees to the insured.
I. BACKGROUND AND MATERIAL PROCEEDINGS
In 2000, REVI, LLC (“REVI”) purchased a five-acre parcel of residential property along
the Potomac River in Fairfax County (the “Property”). At that time, REVI also purchased a title
insurance policy from Chicago Title Insurance Company (“Chicago Title”), which insured
against “loss or damage” caused by “[a]ny defect in or lien or encumbrance on the title,” among
other risks.
In 2004, REVI discovered that the Property was subject to a number of restrictions
contained in a stipulation arising out of a condemnation action filed by the United States in 1963.
These restrictions prohibited tree removal except in limited circumstances, prescribed
permissible building heights, and provided that the property could be developed only in
accordance with a “master plan” approved by the United States Secretary of the Interior. Upon
learning of the restrictions, REVI filed a claim with Chicago Title.
In 2005, Chicago Title accepted the claim and began negotiations with the National Park
Service, a division of the United States Department of the Interior, seeking a release of the
restrictions. The negotiations resulted in a new agreement (the “Release and Easement
Agreement”), which recognized that REVI could subdivide the Property and construct five
residences in accordance with the original stipulation without the consent of the United States.
The Release and Easement Agreement modified slightly the prohibition on tree removal,
allowing REVI to request permission to remove certain trees from the Property. However, the
Release and Easement Agreement carried over the restriction on building height and created
some additional restrictions. After receiving assurances that Chicago Title would indemnify it
for any diminution in the Property’s value as a result of the restrictions, REVI signed the Release
and Easement Agreement in September 2011.
Subsequently, Chicago Title informed REVI that the restrictions contained in the Release
and Easement Agreement did not diminish the value of the Property, and as a result, REVI had
not suffered a compensable loss under the policy. However, Chicago Title invited REVI to
submit an updated Proof of Loss.
In April 2012, REVI submitted an updated Proof of Loss, claiming that the restrictions
contained in the Release and Easement Agreement had diminished the value of the property by
$1.6 million. Chicago Title reiterated its position that the restrictions contained in the Release
and Easement Agreement did not diminish the value of the Property, and it denied REVI’s claim.
On April 2, 2013, REVI filed a complaint in the Circuit Court of Fairfax County, alleging
that Chicago Title had breached the title insurance policy. REVI also alleged that Chicago Title
had acted in bad faith, and it requested an award of attorney’s fees and costs pursuant to Code §
38.2-209. REVI demanded a jury trial “on all counts so triable.”
Chicago Title filed a motion seeking to bifurcate the trial and seeking to have the trial
judge, rather than the jury, consider the issues of bad faith and attorney’s fees under Code § 38.2-
2
209(A). Chief Judge Dennis J. Smith ordered the trial to be bifurcated, but he also ruled that
Code § 38.2-209(A) permitted the jury to determine whether Chicago Title had breached the
insurance contract in bad faith, and accordingly, permitted the jury to award attorney’s fees.
Judge Brett A. Kassabian presided over the jury trial. The jury found that Chicago Title
had breached the contract and awarded REVI $1,241,000 in damages. Then, the jury found that
Chicago Title had acted in bad faith and awarded REVI $442,000 in attorney’s fees and costs.
After receiving the verdicts, Judge Kassabian sua sponte suspended the final order. He
then asked the parties to submit post-trial briefs on whether Code § 38.2-209(A) permits a jury to
determine whether an insurer breached an insurance contract in bad faith and award attorney’s
fees and costs.
Upon further consideration, Judge Kassabian vacated the jury’s award of attorney’s fees
and costs, ruling that Code § 38.2-209(A) requires a judge, not a jury, to determine whether an
insurer committed a bad faith breach of an insurance contract warranting an award of attorney’s
fees. Judge Kassabian then reconsidered the evidence de novo and concluded that the evidence
was insufficient to prove that Chicago Title had acted in bad faith.
REVI filed a petition for appeal challenging (1) the ruling that only a judge, not a jury,
may determine whether an insurer breached an insurance contract in bad faith, and accordingly,
award attorney’s fees and costs to the insured pursuant to Code § 38.2-209(A) and (2) the factual
finding that Chicago Title did not act in bad faith. We awarded REVI an appeal only on its first
assignment of error.
II. ANALYSIS
A. Standard of Review
3
We review questions of statutory interpretation de novo. Eberhardt v. Fairfax Cnty.
Emps. Ret. Sys., 283 Va. 190, 194, 721 S.E.2d 524, 526 (2012). We look to the words of the
statute to determine its meaning, and we consider the entire statute to “place its terms in
context.” Id. “[I]t is our duty to interpret the several parts of a statute as a consistent and
harmonious whole so as to effectuate the legislative goal.” VEPCO v. Board of Cnty.
Supervisors, 226 Va. 382, 387-88, 309 S.E.2d 308, 311 (1983).
B. The Meaning of “court” in Code § 38.2-209
Code § 38.2-209(A) states:
[I]n any civil case in which an insured individual sues his insurer to
determine what coverage, if any, exists under his present policy . . .
or the extent to which his insurer is liable for compensating a
covered loss, the individual insured shall be entitled to recover from
the insurer costs and such reasonable attorney fees as the court may
award. However, these costs and attorney’s fees shall not be
awarded unless the court determines that the insurer, not acting in
good faith, has either denied coverage or failed or refused to make
payment to the insured under the policy.
(Emphasis added.) REVI argues that the meaning of “court,” as used in Code § 38.2-209(A), is
ambiguous. REVI contends that the word “court” when used in the Code sometimes includes a
“jury” and may refer to either the judge or the jury in this statute. To support its argument, REVI
draws an analogy between Code § 38.2-209(A) and a common law bad faith claim. REVI argues
that a determination of bad faith is a factual finding, and it asserts that the common law entitled
litigants to a jury trial on questions of fact. REVI concludes that interpreting “court” to exclude
a jury alters the common law rule, ignores canons of statutory construction, and violates its
constitutional right to have a jury decide whether bad faith exists. We disagree.
Code § 38.2-209 traces its origins to former Code § 38.1-32.1, enacted in 1982. 1982
Acts ch. 576. As enacted, former Code § 38.1-32.1 (Cum. Supp. 1982) provided that the insured
4
could recover “costs and such reasonable attorney fees as the trial judge after verdict may award
if it is determined by such trial judge in such case that the insurer has not in good faith either
denied coverage or failed or refused to make payment to the insured under such policy.”
(Emphasis added.)
Two years later, the General Assembly directed the Virginia Code Commission to study
Title 38.1 of the Code, consisting of the Commonwealth’s insurance laws, and “report its
findings in the form of a revision.” H. J. Res. 1, Va. Gen. Assem. (Reg. Sess. 1984). The
Commission submitted its report to the General Assembly in 1986. Virginia Code Commission,
Report to the Governor and General Assembly of Virginia [The Revision of Title 38.1 of the
Code of Virginia] (Jan. 1986), H. Doc. No. 17 (1986). Subsequently, the General Assembly
enacted 1986 Acts ch. 562 (the “Recodification Act”), titled “An Act to amend the Code of
Virginia by adding a title numbered 38.2 . . . and to repeal Title 38.1 of the Code of Virginia . . .
so as to revise, rearrange, amend and recodify the insurance laws of Virginia generally.” The
Recodification Act enacted the text currently codified as Code § 38.2-209(A). 1
REVI invokes the “presumption that the General Assembly, in amending a statute,
intended to effect a substantive change in the law.” West Lewinsville Heights Citizens Ass’n v.
Board of Supervisors, 270 Va. 259, 265, 618 S.E.2d 311, 314 (2005) (citations omitted). It
contends that the term “trial judge” clearly excluded a jury. Therefore, it argues that the
substitution of “court” for “trial judge” leads to the conclusion that “court” refers to either a
judge or a jury. However, “there is [also] a presumption that a recodified statute does not make
substantive changes in the former statute unless a contrary intent plainly appears in the
recodified statute.” Waldrop v. Commonwealth, 255 Va. 210, 214, 495 S.E.2d 822, 825 (1998)
1
The only change in this statute from 1986 to the present was the addition of the word
“fidelity” before “bond.” See 2006 Acts ch. 279.
5
(citing State Farm Mut. Auto. Ins. v. Major, 239 Va. 375, 378, 389 S.E.2d 307, 309 (1990)).
Thus, we turn to the language of the entire Recodification Act to determine whether the General
Assembly intended to make a substantive change. See Eberhardt, 283 Va. at 194-95, 721 S.E.2d
at 526 (courts may reference the Acts of Assembly as the “authoritative text” of a single
legislative enactment).
From the Recodification Act, the provision subsequently codified as Code § 38.2-807
stated:
In any action against an unlicensed insurer upon an insurance
contract issued or delivered in this Commonwealth to a resident of
this Commonwealth or to a corporation authorized to do business in
this Commonwealth, the court may allow the plaintiff a reasonable
attorney fee if (i) the insurer has failed to make payment in
accordance with the terms of the contract for thirty days after
demand prior to the commencement of the action and (ii) the court
concludes that the refusal was vexatious and without reasonable
cause. The fee shall not exceed twelve and one-half percent of the
amount that the court or jury finds the plaintiff is entitled to recover
against the insurer.
1986 Acts ch. 562 (emphasis added). 2 The meaning of this text is plain: the General Assembly
did not intend for the word “court” to include “jury” in this provision. Thus, Code § 38.2-807
clearly requires the judge, not the jury, to determine whether the insurer acted in bad faith before
awarding attorney’s fees to the insured.
Significantly, Code § 38.2-807 — like Code § 38.2-209 — regulates the court’s authority
to award attorney’s fees and costs to the insured when an insurer breaches an insurance contract,
limiting its authority to instances of bad faith. We construe “all statutes in pari materia in such a
manner as to reconcile, if possible, any discordant feature which may exist, and make the body of
2
The General Assembly amended Code § 38.2-807 in 2010. However, none of the
amendments are relevant to the determination of the meaning of the word “court” in Code §
38.2-209(A). See 2010 Acts ch. 343.
6
the laws harmonious.” Lucy v. County of Albemarle, 258 Va. 118, 129-30, 516 S.E.2d 480, 485
(1999); Eberhardt, 283 Va. at 195, 721 S.E.2d at 526 (“[W]hen a term is used in different sections
of a statute, we give it the same meaning in each instance unless there is a clear indication the
General Assembly intended a different meaning.”). In light of the relationship between the two
sections in this single enactment, we conclude that “court,” as used in Code § 38.2-209(A),
means “judge.” Accordingly, the judge, not the jury, must determine whether the insurer
breached the insurance contract in bad faith before it may award attorney’s fees and costs to the
insured pursuant to Code § 38.2-209(A).
Our conclusion is consistent with the commonly accepted definition of “court,” which is
“[a] tribunal constituted to administer justice [or t]he judge or judges who sit on such a tribunal.”
Black’s Law Dictionary 430 (10th ed. 2014); see Alexandria Gazette Corp. v. West, 198 Va. 154,
162, 93 S.E.2d 274, 281 (1956) (“[T]he word ‘court’ refers sometimes to the judicial institution,
at other times to the judicial officer, and still at other times to the place where a court is being
held.”).
The case relied upon by REVI, Beasley v. Bosschermuller, 206 Va. 360, 143 S.E.2d 881
(1965), is not to the contrary. In that case, we considered a different statutory provision requiring
“courts” to take judicial notice of the statutory tables of speed and stopping distances of vehicles.
Id. at 366, 143 S.E.2d at 886 (quoting provisions currently codified at Code § 46.2-880). Given
the context of the statute, we reasoned that the General Assembly intended “to include juries
within the meaning of the word ‘courts’” and concluded that courts could instruct juries “as to the
contents of the statute which are pertinent to the issues in a particular case.” Id. Nothing in Code
§ 38.2-209 or the Recodification Act suggests that the General Assembly intended to include
juries within the meaning of “court” in this context.
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We also observe that the General Assembly plainly stated its intent behind the
Recodification Act. When the legislature directed the Commission to study former Title 38.1, it
recited that the provisions of former Title 38.1 had become rife with “inconsistencies both in style
and substance.” H. J. Res. 1, Va. Gen. Assem. (Reg. Sess. 1984). The General Assembly further
recited that the provisions of former Title 38.1 needed to be reorganized and revised for
“grammar, clarity and purpose,” and that substantive changes were required to account for
developments in the industry. Id.
The Commission addressed these concerns in its report, identifying the principal changes
in the introduction and additional substantive changes at the beginning of each chapter, and
providing drafting notes throughout. As explained, the substitution of “court” for “trial judge”
made the provision codified as Code § 38.2-209 consistent with a related provision within the
title. 3 Moreover, the Commission did not indicate that it intended to make a substantive change
by substituting the term “court” for “trial judge” in Code § 38.2-209. See The Revision of Title
38.1 of the Code of Virginia (Jan. 1986), H. Doc. No. 17, at 12-13.
The Recodification Act “was the legislative implementation” of the Commission’s report
on the revision of former Title 38.1. Eberhardt, 283 Va. at 196, 721 S.E.2d at 527. The General
Assembly enacted the Commission’s recommendations with few amendments, and no
amendments to the recommended language now codified as Code § 38.2-209. Therefore, we
accept the report as “persuasive authority” that the General Assembly did not intend to make a
substantive change in Code § 38.2-209. Newberry Station Homeowners Ass’n v. Board of
Supervisors, 285 Va. 604, 617, 740 S.E.2d 548, 555 (2013).
3
See Code § 38.2-807 (former Code § 38.1-70, enacted by 1952 Acts ch. 317
(distinguishing between “court” and “jury”)); see also Code § 38.2-617(C) (former Code § 38.1-
57.24(C), enacted by 1981 Acts ch. 389 (authorizing the “court” to “award the cost of the action
and reasonable attorney’s fees to the prevailing party”)).
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C. The Right to a Jury Trial Does Not Apply to Proceedings Under Code § 38.2-209
We find no merit in REVI’s argument that Code § 38.2-209 denies it the right to a jury
trial under the Constitution of Virginia. Article I, Section 11 of the Constitution of Virginia
provides “[t]hat in controversies respecting property, and in suits between man and man, trial by
jury is preferable to any other, and ought to be held sacred.” Yet, the right to a jury trial does not
apply “to those proceedings in which there was no right to jury trial when the Constitution was
adopted.” Stanardsville Volunteer Fire Co. v. Berry, 229 Va. 578, 583, 331 S.E.2d 466, 469
(1985) (citing Bowman v. Virginia State Entomologist, 128 Va. 351, 372, 105 S.E. 141, 148
(1920)).
Code § 38.2-209(A) does not create an independent cause of action for an insurer’s bad
faith breach of an insurance contract. See Code § 38.2-209(B) (“Nothing in this section shall be
deemed to grant a right to bring an action against an insurer by an insured who would otherwise
lack standing to bring an action.”); see also 1982 Acts ch. 576 (codified as former Code § 38.1-
32.1). Thus, it is not a cause of action separate from REVI’s claim for breach of contract, nor is
it a codified version of the common law claim for bad faith. See CUNA Mut. Ins. Soc’y v.
Norman, 237 Va. 33, 38, 375 S.E.2d 724, 726-27 (1989); State Farm Mut. Auto. Ins. Co. v.
Floyd, 235 Va. 136, 142, 366 S.E.2d 93, 96 (1988). Rather, the section authorizes the court to
award attorney’s fees and costs after the insured establishes coverage under the disputed policy,
and the court finds that the insurer denied coverage in bad faith. It is a vehicle for shifting
attorney’s fees and costs where otherwise such costs would not be recoverable.
Virginia follows the “American Rule,” which states that “[g]enerally, absent a specific
contractual or statutory provision to the contrary, attorney’s fees are not recoverable by a
prevailing litigant from the losing litigant.” Mullins v. Richlands Nat’l Bank, 241 Va. 447, 449,
9
403 S.E.2d 334, 335 (1991) (citations omitted). In Virginia, the right to recover attorney’s fees
and costs has been regulated by statute since the colonial era. 4 See 1778 Acts ch. 14, § 5; 1764
Acts ch. 15, § 3; 1765 Acts ch. 52, § 3; 1761 Acts ch. 3, § 11; see also John Leubsdorf, Toward a
History of the American Rule on Attorney Fee Recovery, 47 Law & Contemp. Probs. 9, 10, 12
(1984).
In 1761, the General Assembly enacted “An Act for Regulating the Practice of
Attornies,” prescribing the fees that an attorney could charge for his services. 1761 Acts ch. 3, §
11. Subsequently, the General Assembly authorized the clerks of court to tax the prescribed
attorney’s fee upon recovery in the bill of costs. See 1778 Acts ch. 14, § 5; 1765 Acts ch. 52, §
3; 1764 Acts ch. 15, § 3; see also 1745 Acts ch. 1, § 15 (directing the clerk of court to tax an
attorney’s fee in the bill of costs for certain actions). These acts demonstrate that when Article I,
Section 11 was adopted, an attorney’s fee award was a ministerial matter, closely regulated by
the General Assembly, and not a question for the jury. Moreover, no provision or cause of action
analogous to the fee-shifting provision of Code § 38.2-209(A) existed when the Constitution was
adopted. Accordingly, Article I, Section 11 does not apply to proceedings under Code § 38.2-
209(A). REVI has no right to a jury trial on the issue of bad faith or the corresponding award of
attorney’s fees and costs.
4
In England, the common law did not expressly allow costs except by statute, the first of
which was the Statute of Gloucester. 4 St. George Tucker, Blackstone’s Commentaries with
Notes of Reference to the Constitution and Laws of the Federal Government of the United States
and of the Commonwealth of Virginia 399 (1803). Before the Statute of Gloucester, costs were
“considered and included” in the damages, but the amounts were “frequently inadequate” to
cover the plaintiff’s expenses. Id. Following the enactment of the statute, Blackstone explains
that “costs for the plaintiff are always entered on the roll as increase of damages by the court.”
Id. Even so, until 1797, “if a later statute provided that a fixed amount of damages should be
recoverable for a new offence created by it,” the plaintiff could not also recover costs unless the
statute expressly provided for such costs. 4 W. S. Holdsworth, A History of English Law 537
(1924).
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III. CONCLUSION
For these reasons, we conclude that the word “court,” as used in Code § 38.2-209(A),
means “judge.” A judge, not a jury, must determine whether an insurer “has either denied
coverage or failed or refused to make payment to the insured under the policy” in bad faith. We
also conclude that Code § 38.2-209(A) does not implicate the right to a jury trial under Article I,
Section 11 of the Constitution of Virginia. Therefore, we affirm the judgment of the circuit
court.
Affirmed.
JUSTICE McCLANAHAN, concurring.
I agree with the dissent that the legislative history of Code § 38.2-209(A) is not
determinative and that, when in doubt, a trial by jury should be preferred. In a vacuum, the term
“court” can be understood to include both judge and jury. But in the context of a statute
providing for a finding or determination to be made by “the court,” the General Assembly has
consistently used the term “court” to refer to the trial judge. 1 In light of the General Assembly's
consistent use of the term “court” to mean trial judge, not jury, when referring to a finding or
1
See, e.g., Code § 4.1-323 (“the jury or the court may find the defendant guilty of an
attempt, or being an accessory”); Code § 5.1-13 (“in the discretion of the court or jury trying the
case”); Code § 8.01-52 (“[t]he jury or the court, as the case may be” may award damages); Code
§ 8.01-53 (class and beneficiaries shall be fixed at the time of verdict “if the jury makes the
specification” or at the time judgment is rendered if the “court specifies the distribution”); Code
§ 8.01-54 (if jury unable to agree then the court shall specify distribution); Code § 8.01-188
(such issues may be submitted to a jury with proper instructions by the court); Code § 8.01-430
(providing for the court to set aside jury verdict and decide case on the merits that is contrary to
the evidence or without evidence to support it); Code § 8.01-643 (“Unless the defendant shall ask
for a trial by jury, the court shall hear the same.”); Code § 36-96.18(C) (if the court or jury finds
a discriminatory housing practice has occurred, the court or jury may award damages to plaintiff
and the court may award reasonable attorney's fees); Code § 38.2-807(A) (attorney's fees shall
not exceed 33 1/3 percent of amount that the court or jury finds plaintiff is entitled to recover).
11
determination by “the court,” and the absence of language in the statute to the contrary, I agree
with the majority that Code § 38.2-209(A) provides for the determination of attorney's fees to be
made by the trial judge.
For these reasons, I concur in the result reached by the majority.
JUSTICE KELSEY, dissenting.
The majority holds that a trial judge, not a jury, must determine whether an insurer
committed a bad-faith breach of contract justifying an award of attorney’s fees under Code
§ 38.2-209(A). I recognize the well-worn path taken by the majority, but I cannot follow. The
specific legal question presented by this case, while seemingly narrow, touches on far broader
issues — and the answer given by the majority adds weight to a modern jurisprudential trend that
I lament. 1
I.
REVI, LLC filed a first-party breach of contract claim against Chicago Title Insurance
Company (the insurer). REVI claimed that the insurer had breached, in bad faith, its contractual
obligation to pay REVI’s claim on the insurer’s policy of title insurance. At a bifurcated trial, a
jury agreed with REVI, awarding REVI $1,241,000 in benefit-of-the bargain damages and
$442,000 in attorney’s fees.
1
See generally John H. Langbein, The Disappearance of Civil Trial in the United States,
122 Yale L.J. 522, 524 (2012) (citing statistics showing that, in 2002, 1.2% of federal civil
filings terminated in jury trials and 0.6% of state court dispositions ended in jury trials). We
have experienced a similar trend in Virginia. In 1999, 1.9% of all civil cases filed in Virginia
circuit courts were concluded by a jury trial. See Office of the Executive Secretary, Supreme
Court of Virginia, State of the Judiciary Report, at A-37 & tbl. 17 (2008). By 2012, that
percentage dropped to 0.6%. See Office of the Executive Secretary, State of the Judiciary
Report, Supreme Court of Virginia, at A-16 & tbl. 11 (2012).
12
After receiving both verdicts, the trial judge sua sponte vacated the jury’s award of
attorney’s fees, holding that Code § 38.2-209(A) provides that the issue of bad faith in breach of
contract actions can only be decided by a judge, not a jury, because the statute provides that “the
court,” and not the “jury,” may make the award. The trial judge then reconsidered the evidence
de novo and held that the insurer had not committed a bad-faith breach warranting an award of
attorney’s fees.
REVI filed a petition for appeal challenging (i) the trial judge’s holding that only a judge,
not a jury, could decide the bad-faith issue and (ii) the trial judge’s de novo factual finding that
the insurer did not commit a bad-faith breach of the insurance contract. We awarded REVI an
appeal on its first, but not its second, assignment of error.
II.
On appeal, REVI argues that the reference to “the court” in Code § 38.2-209(A) is
ambiguous and should be interpreted to include a jury. I agree.
A.
Code § 38.2-209(A) authorizes “the court” to determine whether an insurer commits a
bad-faith breach of contract and to award attorney’s fees.
The traditional meaning of the term “court,” as Sir Edward Coke defined it, is simply “a
place where justice is judicially administered.” 1 Edward Coke, The First Part of the Institutes of
the Laws of England, or, a Commentary upon Littleton § 73, at 58 (10th ed. 1703). 2 Unadorned
2
See, e.g., 1 Benjamin V. Abbott, Dictionary of Terms and Phrases Used in American or
English Jurisprudence 301 (1879) (“a tribunal of justice; an authority organized to hear and
determine controversies in the exercise of judicial power”); James A. Ballentine, A Law
Dictionary 95 (1916) (“[p]ersons officially assembled under authority of law, for the
administration of justice”); Henry C. Black, A Law Dictionary 284 (2d ed. 1910) (“[t]he place
where justice is judicially administered”); 1 John Bouvier, A Law Dictionary 325 (6th rev. ed.
1856) (“a place where justice is judicially administered” (citing Coke, supra, at 58)); Richard
13
by context, the ordinary meaning of the term does not specify whether a judge or jury will decide
the case. For example, when two drivers walk away from a car wreck, and one says to the other,
“I’m going to take you to court” or “You’ll see me in court,” most people would not think,
“Well, thank heavens a judge and not a jury will be deciding the case.” The ordinary use of the
term, therefore, is imbued with ambiguity. 3 The contention otherwise is as unconvincing as it is
unconventional.
While it is true that the term “[c]ourt is frequently used as a metonymic substitute for
judge,” Bryan A. Garner, A Dictionary of Modern Legal Usage 231 (3d ed. 2011) (emphasis
omitted), that meaning, some say, can be attributed to “the sometimes-strange jargon of jurists,”
id. (quoting John A. Jenkins, The Litigators 165 (1989)). The more traditional view, widely
recognized by our Founders, declares that “[j]uries form, with a few exceptions, another
constituent part of courts.” 2 The Works of the Honourable James Wilson 305 (Bird Wilson ed.,
1804) 4; see, e.g., Black’s Law Dictionary 318 (5th ed. 1979) (defining “court” as “[a] body
organized to administer justice, and including both judge and jury”). This view continues to
Burn, A New Law Dictionary 203 (1792) (same); 1 Arthur English, A Dictionary of Words and
Phases Used in Ancient and Modern Law 226 (Beard Books 2000) (1898) (“[a] place where
justice is administered in accordance with legal forms and principles”); Stephen H. Gifis,
Barron’s Law Dictionary (6th ed. 2010) (“[t]he branch of government which is responsible for
the resolution of disputes under the law of the government”); 2 Words and Phrases 650-51
(3d ed. 1928) (collecting cases interpreting “court” to “ordinarily designate[] the tribunal itself,
including its constituent parts of judge and jury”).
3
1 Abbott, supra note 2, at 302 (“The term court may be construed to mean the judges of
the court, or to include the judges and jury, according to the connection and the object of its use.”
(citation omitted)); English, supra note 2, at 226 (“Court” denotes “[t]he judge, judges, or the
judge and jury when the court is in session.”); 2 Words and Phrases, supra note 2, at 650 (“[T]he
statute provides that the ‘court’ shall allow a reasonable attorney’s fee . . . . The word, ‘court’
however, was doubtless used by the Legislature in the broader sense as including both judge and
jury or judge alone, according as the ‘court’ may be constituted when the trial occurs.”).
4
Justice James Wilson was a signer of the Declaration of Independence, a principal
drafter of Article III of the United States Constitution, and an inaugural member of the United
States Supreme Court. See generally William Ewald, James Wilson and the Drafting of the
Constitution, 10 U. Pa. J. Const. L. 901, 901, 915, 1004-05 (2008).
14
resonate as authoritative in modern times. See, e.g., Lorillard v. Pons, 434 U.S. 575, 579 n.5,
582-83 (1978) (holding that a federal statute authorizing “the court” to grant legal or equitable
relief could fairly be read to afford a right to jury trial on claims for lost wages). 5
Fifty years ago, we applied the traditional view in Beasley v. Bosschermuller, 206 Va.
360, 143 S.E.2d 881 (1965). Specifically, we held that a statute authorizing “courts” to take
judicial notice of the statutory tables of speed and stopping distances of vehicles must be
understood “to include juries within the meaning of the word ‘courts.’” 206 Va. at 366,
143 S.E.2d at 886. We came to this conclusion because “in cases triable by a jury the word
‘court’ employed in a statute includes the jury as a constituent part.” Id.
The majority holds that the traditional view must give way when the statutory context
suggests otherwise. I could not agree more. There are countless examples of this. See, e.g.,
Ingram v. Commonwealth, 62 Va. App. 14, 24, 741 S.E.2d 62, 67 (2013) (holding that “court,”
used in the context of a statute governing involuntary treatment orders under Code § 37.2-
1101(A), means a court sitting without a jury). But nothing in the Code of Virginia or, more
specifically, Title 38.2, provides the contextual support for the interpretation the majority
imputes to Code § 38.2-209(A).
In dozens of statutes throughout the Code, the General Assembly speaks of the “court”
sitting “without a jury.” 6 In each of these, “without a jury” would be superfluous if, as the
5
See also Feltner v. Columbia Pictures TV, Inc., 523 U.S. 340, 356 (1998) (Scalia, J.,
concurring) (“In common legal parlance, the word ‘court’ can mean ‘the judge or judges, as
distinguished from the counsel or jury.’ But it also has a broader meaning, which includes both
judge and jury.” (citations omitted)); Sibley v. Fulton DeKalb Collection Serv., 677 F.2d 830,
832, 834 (11th Cir. 1982) (holding that the term “court” in the statutory phrase, “in such amount
as the court may allow,” refers to trial by both judge and jury and not only to trial by judge
alone).
6
See, e.g., Code §§ 2.2-3006(B), 3.2-5216, 3.2-5414(A), 8.01-52, 8.01-519, 8.01-
581.20(B), 9.1-405, 10.1-1437(A), 11-8, 15.2-717, 15.2-1507(A)(9)(b), 15.2-1607, 15.2-1654,
15
majority contends, the term “court” necessarily means a judge deciding the issue entirely on his
own. It is true that other statutes use the term “court” to imply court qua judge. But many of
these statutes specifically mention “jury” as distinct from “court,” so as to make clear that, in
those particular contexts, “court” refers only to the constituent part of judges. 7 In other
instances, even within Title 38.2, the General Assembly explicitly refers to the “judge” as
distinct from the “court,” thus employing a broader meaning of “court.” 8 To the extent that any
15.2-1812.2(B), 15.2-2135(A), 15.2-2411, 15.2-3000, 15.2-3104, 18.2-10(e), 18.2-10(f), 18.2-15,
18.2-22(a)(3), 18.2-54, 18.2-56.1(B), 18.2-56.1(D), 18.2-61(C), 18.2-67.1(C), 18.2-67.2(C),
18.2-91, 18.2-95, 18.2-153, 18.2-155, 18.2-248.5(A), 18.2-384, 19.2-244, 19.2-283, 19.2-
298.01(C), 21-126, 22.1-314, 32.1-314(A), 33.2-1103, 45.1-161.322(B), 46.2-357(B)(2),
46.2-391(D)(2)(a), 51.1-124.13(B), 55-326, 56-522, 58.1-1825(D), 58.1-3709(B), 58.1-3984(A),
59.1-41.6, 63.2-507(B); see also Code §§ 8.01-680 (“court without the intervention of a jury”);
16.1-272 (“court shall fix the sentence without the intervention of a jury”); 19.2-257 (“court shall
hear and determine the case without the intervention of a jury”); 19.2-258 (same); 19.2-258.1
(same); 19.2-400 (“in cases to be tried without a jury, before the court begins to hear or receive
evidence”).
7
See, e.g., Code §§ 2.2-1839, 4.1-323, 5.1-13, 6.2-201, 8.01-53(B), 8.01-54(B), 8.01-55,
8.01-106, 8.01-107, 8.01-120, 8.01-158, 8.01-159, 8.01-166, 8.01-188, 8.01-194,
8.01-229(A)(2)(b), 8.01-267.6, 8.01-336, 8.01-360, 8.01-361, 8.01-362, 8.01-374, 8.01-374.1,
8.01-377, 8.01-379.3, 8.01-380(A), 8.01-381, 8.01-382, 8.01-383, 8.01-383.1, 8.01-403,
8.01-417.1, 8.01-423, 8.01-430, 8.01-565, 8.01-573, 8.01-576.1, 8.01-576.2, 8.01-576.3,
8.01-581.7(A), 8.01-643, 11-4, 16.1-113, 18.2-61(B), 18.2-67.5:1, 18.2-248(C), 18.2-268.10(D),
18.2-386.1(E), 18.2-457, 19.2-219, 19.2-231, 19.2-262(A), 19.2-264, 19.2-264.1, 19.2-264.2,
19.2-264.3(A), 19.2-264.3:1(F)(2), 19.2-264.4, 19.2-266.1, 19.2-268, 19.2-271.2, 19.2-291, 19.2-
295, 19.2-295.1, 19.2-295.3, 19.2-307, 19.2-339, 19.2-386.10, 25.1-219, 25.1-318,
29.1-738.2(E), 29.1-810(B), 36-96.16(C), 36-96.17(E), 36-96.18(C), 37.2-908, 38.2-807, 46.2-
341.26:4, 46.2-341.26:10(D), 46.2-942, 46.2-943, 53.1-55, 53.1-156, 55-153, 55-177, 55-178,
55-238, 59.1-130, 61.1-61, 64.2-446(B), 64.2-448(E), 64.2-1212(B), 64.2-2007, 65.2-819, 65.2-
1006(D).
8
See, e.g., Code §§ 38.2-1506(C) (“Action on the petition may be taken by the court or a
judge of the court.” (emphasis added)); 38.2-2405 (“Any fidelity and surety insurer shall be
accepted as surety upon any bond required by . . . any court, judge, public officer, board, or
organization upon presentation of evidence satisfactory to the court, judge, or other officer.”);
38.2-2409 (“Assets shall be . . . held in a manner that prevents the withdrawal . . . without an
order of a court or a judge, made on any notice to the surety which the court or judge directs.”
(emphasis added)); 38.2-2410 (“Any court, judge or other officer . . . shall . . . allow a sum for
the expense.”); see also Code §§ 18.2-67.7(C) (referring to “court” broadly and explicitly
recognizing the constituent parts of “judge” and “jury”); 18.2-67.9(B) (same); 19.2-154 (same);
16
inference can be drawn from these statutes, it is that when “court” designates only a judge, the
legislature typically reinforces that meaning by specifically distinguishing the “court” from the
“jury.”
Suffice it to say, the host of discordant uses of these statutory terms — particularly the
inconsistent usage of the term “court” within Title 38.2 — is alone enough to dissuade me from
accepting the majority’s conclusory assertion that the term “court” has a “commonly accepted
definition” that necessarily excludes juries. See Ante at 7. The majority implicitly concedes the
point by relying heavily on the legislative history of Code § 38.2-209 in an unorthodox effort to
vouch for this “commonly accepted definition.” Ante at 7-8. 9
I do not see how the legislative history provides the majority with the confidence it seeks.
If anything, I would think it would do just the opposite. The General Assembly amended and
recodified the insurance laws (formerly Title 38.1) as Title 38.2 in 1986. See 1986 Acts ch. 562.
Prior to that recodification, the predecessor statute to Code § 38.2-209 specifically provided that
“the trial judge after verdict” should decide the bad-faith issue and that fees could be awarded “if
it is determined by such trial judge in such case” that the insurer has not acted in good faith.
1982 Acts ch. 576 (as enacted, former Code § 38.1-32.1 (Cum. Supp. 1982), quoted in CUNA
19.2-303 (acknowledging implicitly that a jury is a constituent part of “court” by permitting the
court, “whether with or without jury,” to suspend the imposition of a sentence).
9
If the term “court” truly had a “commonly accepted definition” that rendered the statute
unambiguous, ante at 7, neither the majority nor I should be consulting legislative history at all.
We would instead just consult our favored dictionary and be done with it. See, e.g., Clark v.
Strother, 238 Va. 533, 541, 385 S.E.2d 578, 582 (1989) (relying solely on a dictionary for a
word’s “commonly accepted” meaning); Roanoke City Sch. Bd. v. Times-World Co., 226 Va.
185, 192, 307 S.E.2d 256, 259 (1983) (relying only on two dictionaries); Suggs v. Life Ins. Co.
of Va., 207 Va. 7, 11, 147 S.E.2d 707, 710 (1966) (finding no “ambiguity” in a term that has a
“commonly accepted definition”). As we have often said, “When the language of an enactment
is free from ambiguity, resort to legislative history and extrinsic facts is not permitted because
we take the words as written to determine their meaning.” Virginia Broad. Corp. v.
Commonwealth, 286 Va. 239, 249, 749 S.E.2d 313, 318 (2013) (alteration omitted) (quoting
Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985)).
17
Mut. Ins. Soc’y v. Norman, 237 Va. 33, 38, 375 S.E.2d 724, 726 (1989)). The 1986 amendment
deleted the phrases “the trial judge after verdict” and “if it is determined by such trial judge in
such case,” replacing “trial judge” with “the court.” Compare former Code § 38.1-32.1 with
Code § 38.2-209(A).
In Virginia, “a presumption exists that a substantive change in law was intended by an
amendment to an existing statute,” Commonwealth v. Bruhn, 264 Va. 597, 602, 570 S.E.2d 866,
869 (2002) (quoting Virginia-American Water Co. v. Prince William Cty. Serv. Auth., 246 Va.
509, 517, 436 S.E.2d 618, 622-23 (1993)), and thus, we should “assume that the General
Assembly’s amendments to the law are purposeful and not unnecessary or vain,” Virginia-
American Water Co., 246 Va. at 517, 436 S.E.2d at 623.
That presumption surely applies here. If “the court” means exactly the same thing as the
phrase “the trial judge after verdict,” then the 1986 amendment accomplished nothing except to
make unclear what had previously been perfectly clear. See Appellant’s Br. at 16–17. If we are
to draw any inferences at all from the amendment, it should be toward giving the new language
some meaning — as opposed to none at all. That is particularly true given our prior observation
that “in cases triable by a jury the word ‘court’ employed in a statute includes the jury as a
constituent part.” Beasley, 206 Va. at 366, 143 S.E.2d at 886.
The majority makes much over the fact that the Code Commission’s Report to the
General Assembly does not specifically call attention to the amendment as “substantive.” Ante
at 8. But that is a peculiarly thin basis on which to rebut the judicial presumption to the
contrary. 10 The Report plainly states that the recodification was a “complete rewrite” of the
10
This presumption can be rebutted when a recodification makes no substantive change
in law. See, e.g., Newberry Station Homeowners Ass’n v. Board of Supervisors, 285 Va. 604,
617-18, 740 S.E.2d 548, 555-56 (2013) (finding no change in law when drafting note expressly
18
insurance laws and made “substantive changes” to it. 11 Although the Report summarizes certain
“principal changes,” id., it is highly speculative to assume that not expressly mentioning the
amendment of former Code § 38.1-32.1 to Code § 38.2-209 as a “principal” change somehow
proves that the staffers who wrote the Report thought that the amendment was a non-substantive,
purely stylistic edit. 12 And, frankly, I am not sure that it should matter if they did. The judicial
function of interpreting statutes must operate at a higher level than this. It is the legislative intent
of the General Assembly, not the Code Commission, that we must discern. See Lavery v.
Automation Mgmt. Consultants, Inc., 234 Va. 145, 149 n.3, 360 S.E.2d 336, 339 n.3 (1987)
(“Revisers’” notes accompanying a statute are “not law and they cannot control the exercise of
this Court’s obligation to say what the law is.”).
B.
As useful as they may be, canons of construction are not infallible. “Canons of
construction need not be conclusive and are often countered, of course, by some maxim pointing
stated that the recodification did not intend to effect any substantive change and when General
Assembly adopted all of the Code Commission’s recommended language without amendment);
Waldrop v. Commonwealth, 255 Va. 210, 214, 495 S.E.2d 822, 825 (1998) (finding no change in
law where “nothing in the Recodified Act suggests an intent to make substantive changes in the
Act” and where the Report of the Code Commission stated “the goal of [the] recodification is a
clearer, more easily understood set of election laws and the elimination of ambiguities in the
present law rather than substantive changes in the law.” (emphasis added) (quoting Report of the
Virginia Code Commission on the Recodification of Title 24.1 of the Code of Virginia, S. Doc.
No. 25 (1993)). Furthermore, “courts do not give much, if any, weight to section headings,
comments, or notes where they were inserted by the compiler or publisher for convenience of
reference.” 2A Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction
§ 47:14, at 346 (7th rev. ed. 2014).
11
Virginia Code Commission, Report of the Virginia Code Commission on the Revision
of Title 38.1 of the Code of Virginia, H. Doc. No. 17, at 1 (1986).
12
See State Farm Mut. Auto. Ins. Co. v. Major, 239 Va. 375, 377-79, 389 S.E.2d 307,
309 (1990) (finding a “plainly indicate[d]” legislative intent “to alter the substantive meaning of
the recodified provision” of the insurance law from “the change in language in the recodified
provision,” notwithstanding the absence of a “revisors’ note” designating the revision as
substantive).
19
in a different direction.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 115 (2001). When
this occurs, as is arguably the case here, courts should acknowledge the analytical stalemate and
search for a tie-breaker principle. Virginia judges need not go very far to find one that directly
addresses this case.
Authored by George Mason, the 1776 Virginia Declaration of Rights declared that “the
ancient trial by jury is preferable to any other” and thus “ought to be held sacred.” Virginia’s
Declaration of Rights, § 11, 9 Hening’s Statutes of Virginia 109, 111-12 (1776). This sacred,
constitutional preference survives to this day as Article I, Section 11, of the Constitution of
Virginia and constitutes a meta-canon recognizing the Commonwealth’s venerated tradition of
viewing the citizen jury as a constituent and essential part of the judiciary — “preferable” to any
other. Id.
Our faith in this premise comes from the English common law, so deeply embedded in
the Commonwealth’s history, 13 which declared juries to be “the best investigators of truth, and
the surest guardians of public justice.” 3 William Blackstone, Commentaries *380; see also The
Works of the Honourable James Wilson, supra, at 315-17. “So tight was the linkage between
trial and jury that there was in fact no such thing as nonjury trial at common law. In any case
involving a disputed issue of fact, bench trial (adjudication by the judge sitting without a jury)
13
“The common law of England was the common law of Colonial Virginia, and after the
Revolution became the common law of the Commonwealth.” Miller v. Commonwealth, 159 Va.
924, 931, 166 S.E. 557, 559 (1932); see also United States Fid. & Guar. Co. v. Carter, 161 Va.
381, 387-89, 170 S.E. 764, 765-66 (1933) (reaffirming that Virginia adopted English common
law “as understood at the time of the American Revolution”); Briggs v. Commonwealth, 82 Va.
554, 557 (1886) (recognizing the export of English common law to Colonial Virginia and the
Commonwealth’s official adoption of it following the Revolution); Taylor v. Commonwealth,
58 Va. App. 435, 443-46, 710 S.E.2d 518, 522-24 (2011) (acknowledging the adoption and reach
of English common law in the Commonwealth); W. Hamilton Bryson, English Common Law in
Virginia, 6 J. Legal Hist. 249, 251 (1985) (noting that “the common law was brought from
England to Virginia in 1607”).
20
was unknown until the later nineteenth century.” John H. Langbein, The Disappearance of Civil
Trial in the United States, 122 Yale L.J. 522, 524 (2012).
The citizen jury was understood as “the ‘lower judicial bench’ in a bicameral judiciary” 14
and “the democratic branch of the judiciary power.” 15 Within this tradition, the jury does not
function as a “mere procedural formality, but a fundamental reservation of power in our
constitutional structure. Just as suffrage ensures the people’s ultimate control in the legislative
and executive branches, jury trial is meant to ensure their control in the judiciary.” Blakely v.
Washington, 542 U.S. 296, 305-06 (2004). Ordinary citizens, John Adams wrote, “should have
as complete a control . . . in every judgment of a court of judicature” as in the legislature. Id. at
306 (quoting in parenthetical John Adams, Diary Entry (Feb. 12, 1771), reprinted in 2 Works of
John Adams 252, 253 (C. Adams ed. 1850)). 16
As the “democratical balance in the Judiciary power,” 17 the jury system secured to the
citizenry “a share of Judicature which they have reserved for themselves.” 18 From this
perspective, “the common man in the jury box, no less than the citizen in the voting booth, was
14
Akhil Reed Amar & Les Adams, The Bill of Rights Primer 138 (2002) (quoting John
Taylor, An Inquiry into the Principles and Policy of the Government of the United States 209
(W. Stark ed., 1950) (1814)).
15
Id. (quoting Essays by a Farmer (IV), reprinted in 5 The Complete Anti-Federalist 36,
38 (Herbert J. Storing ed., 1981)). See generally Akhil Reed Amar, The Bill of Rights: Creation
and Reconstruction 11, 81-118 (1998).
16
With characteristic hyperbole, Jefferson was even more emphatic: “Were I called upon
to decide whether the people had best be omitted in the Legislative or Judiciary department, I
would say it is better to leave them out of the Legislative.” Blakely, 542 U.S. at 306 (quoting in
parenthetical Letter from Thomas Jefferson to the Abbé Arnoux (July 19, 1789), reprinted in 15
Papers of Thomas Jefferson 282, 283 (J. Boyd ed. 1958)).
17
Amar, The Bill of Rights: Creation and Reconstruction 95 (quoting Essays by
Hampden, reprinted in 4 The Complete Anti-Federalist, supra note 15, at 198, 200).
18
Id. at 94 (quoting Wythe Hold, “The Federal Courts Have Enemies in All Who Fear
Their Influence on State Objects”: The Failure to Abolish Supreme Court Circuit-Riding in the
Judiciary Acts of 1792 and 1793, 36 Buff. L. Rev. 301, 325 (1987)).
21
central to a democratic theory that asserted the sovereignty of the people through self-
government.” Ronald J. Bacigal, Putting the People Back into the Fourth Amendment, 62 Geo.
Wash. L. Rev. 359, 409 (1994). 19 Because of its unique role within our democracy, the jury
remains to this day a “cornerstone of Anglo-American judicial procedure.” Glossip v. Gross,
___ U.S. ___, ___, 135 S. Ct. 2726, 2748 (2015) (Scalia, J., concurring).
Could we ask for a more worthy canon of construction than the constitutional bias in
favor of the “ancient trial by jury” and the declared will of the People that it “is preferable to any
other” manner of trial? Virginia’s Declaration of Rights, § 11, 9 Hening’s Statutes of Virginia
109, 111-12 (1776); see also Va. Const., art. I, § 11. Is there any better meta-canon to rule over
the lesser canons of constructions that rely almost entirely on linguistics, syntax, and
assumptions about ideal draftsmanship?
III.
In short, I believe that the term “court” in Code § 38.2-209(A) is ambiguous because
reasonable interpreters could read it to include a jury or, conversely, to exclude a jury. Picking
solely from these opposing views seems to me to miss the forest for the trees. The legal
timberland of the Commonwealth was planted by arborists who considered the citizen jury as
sacred. If any reasonable statutory construction exists to preserve this “preferable” method of
deciding disputes, Va. Const. art. 1, § 11, it should prevail over all the others. Only by following
this interpretative path can we preserve “in the hands of the people that share which they ought
to have in the administration of public justice.” Blackstone, supra, at *380.
For these reasons, I respectfully dissent.
19
See also 1 Alexis De Tocqueville, Democracy in America 362 (Henry Reeve trans.,
3d ed. 1863) (“The system of the jury, as it is understood in America, appears to be as direct and
as extreme a consequence of the sovereignty of the people as universal suffrage.”); see generally
id. at 358-67 (discussing trial by jury as a democratic “political institution” in the United States).
22