Dalton v. Doe

• Citation: 540 S.E.2d 536,208 W. Va. 319
• Decision Date: 16 June 2000
• Docket Number: No. 26437.,26437.
• Court: Supreme Court of West Virginia
• Parties: Thelma J. DALTON, Plaintiff Below, Appellant, v. John DOE, Defendant Below, Appellee.

540 S.E.2d 536

208 W. Va. 319

Thelma J. DALTON, Plaintiff Below, Appellant, v. John DOE, Defendant Below, Appellee.

No. 26437.

Supreme Court of Appeals of West Virginia.

Submitted January 25, 2000.

Decided June 16, 2000.

Dissenting Opinion of Justice McGraw January 12, 2001.

John H. Bicknell, Bert Ketchum, Greene, Ketchum, Bailey & Tweel, Huntington, for Appellant.

J. Tyler Dinsmore, Erica M. Baumgras, Flaherty, Sensabaugh & Bonasso, Charleston, for Prudential Insurance Company.

Catherine D. Munster, McNeer, Highland, McMunn & Varner, Charleston, and Charles S. Piccirillo, Kelly R. Charnock, Shaffer & Shaffer, Madison, for State Farm Mutual Automobile Insurance Company.

PER CURIAM.

This is an appeal by Thelma J. Dalton from an order of the Circuit Court of Logan County granting State Farm Mutual Automobile Insurance Company and Prudential Insurance Company summary judgment in an action which the appellant instituted to recover under the uninsured insurance endorsement to automobile insurance policies issued by the companies. The circuit court concluded that the appellant was precluded from recovering under the uninsured motorist provisions because the uninsured motorist involved in the appellant's accident had not actually had physical contact with the appellant. In reaching the decision that physical contact was necessary, the court refused to apply retroactively this Court's holding in Hamric v. Doe, 201 W.Va. 615, 499 S.E.2d 619 (1997), that physical contact was unnecessary, under certain circumstances, to permit an insured to recover under an uninsured motorist provision.

In the present appeal, the appellant claims that the trial court erred in refusing to apply the Hamric holding retroactively to her case. By way of cross-assignment of error, Prudential Insurance Company, on behalf of the defendant, John Doe, claims that the circuit court erred in ruling that West Virginia's ten-year statute of limitations period for contract actions, rather than the two-year limitations period for tort actions, governed the time for the filing of this action.

I. FACTUAL BACKGROUND

On July 31, 1992, the appellant Thelma J. Dalton suffered personal injuries when she struck a tree to avoid a collision with another vehicle driven by an unknown "John Doe" driver. There was no actual physical contact between the appellant and the other vehicle. At the time of the accident, West Virginia law, as then interpreted, precluded an insured's recovery under an uninsured motorist provision unless there was physical contact between the victim's vehicle and the vehicle of the uninsured motorist.

In 1997, some five years after the appellant's accident, this Court in Hamric v. Doe, id.,

ruled that physical contact between the vehicle of a victim and the vehicle of an uninsured motorist was not necessary for recovery where the accident was witnessed by a disinterested third-party witness. Although the Court recognized that, to recover under an uninsured motorist clause, it was necessary to establish a close and substantial physical nexus between the unidentified vehicle and the insured vehicle, the Court proceeded to conclude that:

A close and substantial physical nexus exists between an unidentified hit-and-run vehicle and the insured for uninsured motorist insurance coverage under W. Va. Code § 33-6-31(e)(iii) when an insured can establish by independent third-party evidence to the satisfaction of the trial judge and the jury, that but for the immediate evasive action of the insured, direct physical contact would have occurred between the unknown vehicle and the victim.

Syllabus Point 3, Hamric v. Doe, id.

Following the issuance of the Hamric decision, the appellant, on January 12, 1998, instituted the present action in the Circuit Court of Logan County. In her complaint, she alleged that the accident which had caused her injuries had been caused by the negligence of an unidentified John Doe who had left the scene of the accident and that the accident had been witnessed by three third-party, disinterested individuals. She also alleged that she was insured under an insurance policy issued by Prudential Property and Casualty Insurance Company (elsewhere referred to as Prudential Insurance Company) which provided uninsured motorist coverage of $100,000 per person, or $300,000 per accident on each of two vehicles owned by her. She further claimed that the vehicle which she was driving at the time of the accident, which she did not own, was covered under a policy of insurance issued to Howard Toppings by State Farm Mutual Automobile Insurance Company which also provided her with uninsured motorist coverage in the amount of $100,000 person, or $300,000 per accident.

State Farm Mutual Automobile Insurance Company filed an answer to the appellant's complaint in which it asserted that the appellant's claim was barred by the statute of limitations. It also alleged that since there was no physical contact between the vehicle operated by the appellant and that operated by the alleged John Doe driver, there was no uninsured motorist coverage available to the plaintiff. In taking this position, it effectively claimed that the Court's holding in the Hamric decision did not apply retroactively to the appellant's case. Prudential Insurance Company also filed an answer which affirmatively asserted the statute of limitations defense and which stated that since there was no physical contact between the vehicle operated by the appellant and that operated by the alleged John Doe driver, there was no uninsured vehicle coverage available to the plaintiff.

Following the filing of the answers in the case, State Farm Mutual Automobile Insurance Company, appearing and defending in the name of John Doe, moved for summary judgment. The summary judgment issues were subsequently briefed by the parties and, on November 23, 1998, the Circuit Court of Logan County entered the order from which the present appeal is taken. In that order, the court first ruled that since the appellant's claim was a claim relating to coverage under an insurance contract, West Virginia's ten-year statute of limitations, which applied to contract actions, rather than West Virginia's two-year statute of limitations which applied to tort actions, controlled. In view of the fact that the ten-year statute of limitations period controlled and that appellant's action was brought some six years after the accident, the court concluded that the action was not barred by the statute of limitations.

The court, however, also stated that:

With respect to the defendant's motion for summary judgment, the Court recognizes that at the time of the automobile accident which is the subject of plaintiff's claim, July 31, 1992, and currently, physical contact is required in order for an insured to present an uninsured motor vehicle coverage claim under West Virginia Code § 33-6-31(e)(iii), including a John Doe vehicle, such as the case here. The plaintiff herein acknowledges no physical contact between her vehicle and the John Doe vehicle, but attempts to retroactively invoke the case of Hamric v. John Doe and State Farm Mut. Auto. Ins. Co., CIV. A.23964, [201 W.Va. 615, 499 S.E.2d 619,] 1997 WL 752151 (W.Va.1997). The Court is of the opinion and hereby finds that the recent ruling by the West Virginia Supreme Court of Appeals in Hamric, is a drastic departure in this area of the law. This Court is further of the opinion that Hamric should not be applied retroactively because of this drastic departure as it may cause cases even older than the instant case to be resurrected without a proper opportunity to investigate being available, particularly in light of the fact that the physical contact requirement of the statute was in place and enforced by case law prior to Hamric. For these reasons, the Court is of the opinion that the defendant's motion for summary judgment should be granted as there exists no genuine issue of material fact to support the plaintiff's claim in this matter.

II. STANDARD OF REVIEW

At the outset, the Court notes that "[a] circuit court's entry of summary judgment is reviewed de novo." Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). The Court also notes that "[i]f there is no genuine issue as to any material fact summary judgment should be granted but such judgment must be denied if there is a genuine issue as to a material fact." Syllabus Point 4, Aetna Casualty and Surety Company v. Federal Insurance Company of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

III. DISCUSSION

In the present case, the first claim which has been asserted by the appellant is that the trial court erred in refusing to apply this Court's decision in Hamric v. Doe, supra,

retroactively in her case. As has previously been stated, the essential holding in Hamric v. Doe was that actual physical contact was unnecessary in West Virginia to afford an insured coverage under an uninsured motorist provision provided there was independent, third-party evidence that an uninsured motorist caused an insured's injury.

As has also been stated, the circuit court in refusing to apply Hamric v. Doe retroactively concluded that the Hamric decision demonstrated a dramatic departure from law in the case and that under the circumstances it should not be applied retroactively.

In Bradley v. Appalachian Power Company, 163 W.Va. 332, 256 S.E.2d 879 (1979), this Court examined the circumstances under which a Supreme Court decision overruling previous law should be afforded retroactivity. In Syllabus Point 5 of the Bradley decision, this Court summarized the criteria which should be followed in determining whether retroactivity is appropriate. Specifically, the Court said:

In determining whether to extend full retroactivity, the following factors are to be considered: First, the nature of the substantive issue overruled must be determined. If the issue involves a traditionally settled area...