Creteau v. Phoenix Assur. Co. of N. Y., 5213

• Decision Date: 24 April 1961
• Docket Number: No. 5213,5213
• Citation: 119 S.E.2d 336,202 Va. 641
• Court: Virginia Supreme Court
• Parties: MARGARET M. CRETEAU v. PHOENIX ASSURANCE COMPANY OF NEW YORK. Record

Page 336

119 S.E.2d 336

202 Va. 641

MARGARET M. CRETEAU v. PHOENIX ASSURANCE COMPANY OF NEW YORK.

Record No. 5213.

Supreme Court of Appeals of Virginia

April 24, 1961.

Stanley E. Sacks (Herman A. Sacks; Sacks and Sacks, on brief), for the plaintiff in error.

M. T. Bohannon, Jr. (Herbert and Bohannon, on brief), for the defendant in error.

JUDGE: SNEAD

SNEAD, J., delivered the opinion of the court.

This appeal by Margaret M. Creteau resulted from an order sustaining a demurrer of Phoenix Assurance Company of New York to her amended motion for judgment.

Plaintiff alleged in her amended motion for judgment that Phoenix, the defendant, on March 14, 1959, issued a liability insurance policy on an automobile owned by Thomas Lee McBryde; that while she was a passenger in the car driven by McBryde it became involved in an accident on May 2, 1959; that on October 2, 1959, in the Court of Law and Chancery of the City of Norfolk she obtained a judgment against Walter Rawls, an uninsured motorist, in the sum of $5,000 for injuries received in the accident; that the amount remained unpaid as Rawls was without effects; that Phoenix had actual notice of the time, date and place of the trial well in advance of it, and that Phoenix had its representative and counsel in court during the trial of the case, but he did not participate therein.

It was further alleged that on the day the action was instituted against Rawls, plaintiff, through her attorney, requested the Clerk of the Court to issue process to be served on Phoenix pursuant to Code § 38.1-381; that the clerk refused to issue the process because he thought it improper; that as a result thereof no process was served on Phoenix, and that plaintiff had complied with all the provisions and requirements of § 38.1-381 as it was in effect at the time the policy was issued to McBryde and was entitled to payment of $5,000 plus $1,666 attorneys' fees from Phoenix by reason of the uninsured motorist endorsement attached to the policy.

The demurrer was sustained on the ground that plaintiff did not comply with Code § 38.1-381(e)(1) in that process was not served on Phoenix in her action against Rawls. Subsection (e)(1) was added to § 38.1-381 by ch. 70, Acts of Assembly, 1959, Ex. Sess. It became effective April 27, 1959, about a week prior to the accident here involved, and it reads:

'Any insured intending to rely on the coverage required by paragraph (b) ¹ of this section shall, if any action is instituted against the owner or operator of an uninsured motor vehicle, serve a copy of the process upon the insurance company issuing the policy in the manner prescribed by law, as though such insurance company were a party defendant; such company shall thereafter have the right to file pleadings and take other action allowable by law in the name of the owner or operator of the uninsured motor vehicle or in its own name; provided, however, that nothing in this paragraph shall prevent such owner or operator from employing counsel of his own choice and taking any action in his own interest in connection with such proceeding.

'This subsection shall not apply to any cause of action arising prior to the effective date of this amendment.'

Plaintiff asigns as error the court's action in sustaining defendant's demurrer, in entering summary judgment for defendant, and asserts that the judgment is contrary to law.

The language of subsection (e)(1) is clear and unequivocal. It provides that if an insured intends to rely on the coverage required by subsection (b) he 'shall, if any action is instituted against the owner or operator of an uninsured motor vehicle, serve a copy of the process upon the insurance company issuing the policy in the manner prescribed by law, as though such insurance company were a party defendant; * * *. ' (Italics supplied.) It is evident that a copy of the process must be served on the insurance company before it may be held liable under the uninsured motorist act. The language employed is mandatory and establishes a condition precedent to the benefits of the statute unless waived by the insurance company. Plaintiff stated in her amended motion for judgment that a copy of the process was not served upon Phoenix in her action against Rawls. Such being the case she failed to meet the statutory requirements.

Plaintiff's main contention is that Phoenix waived service of a copy of the process upon it and she is therefore entitled to recover. She argues that since Phoenix had actual notice of the pendency of her action against Rawls, had ample notice of the time and place of trial, and had a legal representative present at the trial who did not participate in it, a waiver of the requirements of subsection (e)(1) was effected.

In 19 M.J., Waiver, § 2, pp. 534, 535, it is stated:

'Waiver is the intentional relinquishment of a known right, with both knowledge of its existence and an intention to relinquish it.

'Waiver applies to any right conferred by law or contract. This right may or may not be exercised by the person holding it. Being for his own benefit, no one is concerned in its relinquishment save himself. Hence, the owner of such right may waiver it expressly, either in writing or by parol, and impliedly by inconsistent conduct; that is to say, a...