Collins v. Doe, 25571.

• Citation: 352 S.C. 462,574 S.E.2d 739
• Decision Date: 30 December 2002
• Docket Number: No. 25571.,25571.
• Parties: Leatrice Williams COLLINS, Respondent, v. John DOE, Petitioner.
• Court: United States State Supreme Court of South Carolina

352 S.C. 462

574 S.E.2d 739

Leatrice Williams COLLINS, Respondent, v. John DOE, Petitioner.

No. 25571.

Supreme Court of South Carolina.

Heard June 12, 2002.

Decided December 30, 2002.

Harry C. Wilson, Jr., of Lee, Erter, Wilson, James, Holler & Smith, of Sumter, for petitioner.

Ronnie A. Sabb, of Kingstree, for respondent.

Justice PLEICONES:

The Court granted certiorari to consider the Court of Appeals' decision in Collins v. Doe, 343 S.C. 119, 539 S.E.2d 62 (Ct.App.2000). The Court of Appeals held that for purposes of S.C.Code Ann. § 38-77-170(2) (Supp.2001), a witness's sworn trial testimony is the functional equivalent of a sworn affidavit. We reverse.

FACTS/PROCEDURAL BACKGROUND

Respondent sued an unidentified driver, Petitioner John Doe ("Doe"), after she was involved in an automobile collision with another vehicle. Respondent was traveling on Highway 301 in Clarendon County. At the point where 301 intersects with Highway 521, an automobile driven by Doe failed to yield the right of way to Respondent. To avoid a collision with Doe, Respondent took evasive action, and in so doing, collided with the vehicle of Joanne Calvin. Respondent's vehicle never made contact with Doe's vehicle. Respondent suffered injuries in the accident, and sought to recover damages under the uninsured motorist coverage provided by her automobile insurance policy.

Respondent sued Doe and the case went to trial. After Respondent presented her case, Doe moved for directed verdict. The basis for Doe's motion was Respondent's failure to produce an affidavit of a witness, as prescribed by S.C.Code Ann. § 38-77-170(2) (Supp.2001).¹ Although Respondent did not produce a witness-signed affidavit, at trial she produced a witness who testified that a vehicle driven by Doe caused the accident. Respondent argued the witness's testimony satisfied the requirements of § 38-77-170(2).

The trial court found that Respondent's failure to produce an affidavit was fatal to her cause of action, and granted Doe's directed verdict motion. The Court of Appeals reversed, holding the witness's trial testimony was the functional equivalent of a sworn affidavit. We granted Doe's petition for certiorari.

ISSUE

Did the Court of Appeals err in determining that a witness's testimony at trial is the functional equivalent of the affidavit required by § 38-77-170(2)?

ANALYSIS

Doe contends the Court of Appeals erred in reversing the circuit court. We agree.

Where a statute's language is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion for employing rules of statutory interpretation and the Court has no right to look for or impose another meaning. City of Columbia v. American Civil Liberties Union of S.C., Inc., 323 S.C. 384, 475 S.E.2d 747 (1996). Where the terms of the statute are clear, the court must apply those terms according to their literal meaning. Id.

The legislature unambiguously required that a plaintiff seeking to recover against her uninsured motorist coverage for the negligence of an unknown John Doe driver strictly comply with the plain language of the statute. The current statute is titled "Conditions to sue or recover under uninsured motorist provision when owner or operator of motor vehicle causing injury or damage is unknown." (Emphasis supplied).

Our General Assembly first enacted a John Doe statute in 1963. The statute as first enacted required "physical contact with the unknown vehicle" before the plaintiff could recover. See Act No. 312, 1963 S.C. Acts 535.

In 1987, the General Assembly relaxed the physical contact requirement, and amended the John Doe statute to provide that a plaintiff has no right of action or recovery unless "the injury or damage was caused by physical contact with the unknown vehicle, or the accident must have been witnessed by someone other than the owner or operator of the insured vehicle." Act No. 166, 1987 S.C. Acts 1122. Under the 1987 amendment, a witness-sworn affidavit was not required.

The legislature again amended the statute in 1989, and added the sworn affidavit requirement. The statute at large effecting this most recent amendment provides that the act is "to amend section 38-77-170 relating to the requirements to recover under the uninsured motorist provisions when the at-fault party is unknown, so as to require a witness to the accident to sign an affidavit attesting to the truth of the facts about the accident and to provide a warning statement to be displayed on the affidavit." Act No. 148, 1989 S.C. Acts 439 (emphasis supplied).

As written, section 38-77-170 contains requirements necessary to support a plaintiff's "right of action." Black's defines "right of action" as:

1. The right to bring a specific case to court. 2. A right that can be enforced by legal action; a chose in action. Cf. cause of action.

Black's Law Dictionary 1324 (Bryan A. Garner ed., 7th ed, West 1999). Without a sworn affidavit, a plaintiff has no right of action. In other words, without the affidavit, she has no right to bring her case to court.

This Court has historically required strict compliance with the statute allowing an insured to sue her own insurer where damages are caused by an unknown driver. In Criterion Ins. Co. v. Hoffmann, 258 S.C. 282, 188 S.E.2d 459 (1972), an insured sued his insurer seeking to recover against the uninsured motorist coverage of his policy. The statute ² required that service of process be accomplished by delivering a copy of the summons and complaint to the insurance commissioner. The insured delivered to the insurance commissioner a copy of the summons, but not a copy of the complaint. The Court affirmed the trial court's ruling that the insured could not recover because he failed to comply with the statutory provisions regarding service of process. The Court remarked:

The right to sue and collect from one's own liability insurance carrier in case of a loss caused by a hit-and-run driver or other driver of an uninsured automobile is a creature of the legislature. Except for the statute, and endorsements required, no right exists to recover from one's own insurance carrier. One must look to the terms of the uninsured motorist statute and policy endorsements and comply therewith to get the benefit of law....

It is the province of the lawmakers to create a right of action, to provide for process and to declare the procedure for collecting from one's own insurance carrier....

The terms of the statute ... are clear and not ambiguous. This being true, there is no room for construction and we are required to apply the statute according to its literal meaning. Most courts take a liberal view when dealing with the question of coverage; however, the procedural obligations that the insured must discharge in order to recover, since they are prescribed by statute, are viewed by the courts as mandatory, and strict compliance with them is a prerequisite to recover.

Id. at 290-92, 188 S.E.2d at 462-63.

This Court held that proof of physical contact, a requirement contained in the predecessor statute to Section 38-77-170, was a condition precedent to a plaintiff's right of action against an unknown John Doe defendant. See Wynn v. Doe, 255 S.C. 509, 180 S.E.2d 95 (1971)

.

In Wynn v. Doe, the plaintiff brought suit against unknown motorist John Doe after the plaintiff drove her motorcycle through a slippery substance on the highway and crashed. The plaintiff sued the unknown driver of the vehicle responsible for laying the substance on the highway. The plaintiff admitted that there had been no physical contact between her motorcycle and the unknown driver's vehicle.

The John Doe statute under consideration in Wynn provided that:

If the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured be unknown, there shall be no right of action or recovery under the uninsured motorist provision, unless ...

(2) The injury or damage was caused by physical contact with the unknown vehicle.

S.C.Code Ann. § 46-750.34 (Supp.1970).³ The trial court granted judgment in favor of the defendant, holding that the plaintiff had failed to state a cause of action because there had been no physical contact between the unknown vehicle and the plaintiffs motorcycle. This Court agreed, and strictly construed the statute:

The right to recover for the negligence of an unknown motorist is determined, under the plain terms of Section 46-750.34(2), by whether or not the injury was caused by physical contact with the unknown vehicle.... In the words of the statute, there is `no right of action or recovery under the uninsured motorist provision, unless * * * the injury or damage was caused by physical contact with the unknown vehicle.' The statute makes proof of physical contact a condition precedent in any case for the recovery of damages caused by an unknown driver and vehicle. There are no exceptions to this rule .... It being agreed that there wai, no physical contact between the unknown vehicle and the motorcycle operated by the appellant, the absence of any such physical contact is fatal to her cause of action.

The appellant contends that since there was actual and physical contact with the chemical substance dumped or spilled onto the public highway by an unidentified and unknown vehicle, such meets the `physical contact' requirement of Section 46-750.34(2) of the Code. This contention is of no consequence because here the indispensable element of `physical contact with the unknown vehicle' is absent and, therefore, to adopt the view advanced by the appellant would defeat the clear and unambiguous legislative intent expressed in the statute....

Wynn v. Doe, at 511-12, 180 S.E.2d at 96 (emphasis supplied; citations omitted).

Courts have likewise required strict compliance with the current version of the John Doe statute. In Morehead v. Doe, 324 S.C. 559, 479 S.E.2d 817 (Ct.App.1996), the plaintiff did not report the accident to...