Davis v. Robertson

• Decision Date: 22 April 1985
• Docket Number: No. CC941,CC941
• Citation: 175 W.Va. 364,332 S.E.2d 819
• Parties: Wanda Sue DAVIS v. Robert J. ROBERTSON and Jack Davis. Case
• Court: West Virginia Supreme Court

Page 819

332 S.E.2d 819

175 W.Va. 364

Wanda Sue DAVIS v. Robert J. ROBERTSON and Jack Davis.

Case No. CC941.

Supreme Court of Appeals of

West Virginia.

Submitted Jan. 22, 1985.

Decided April 22, 1985.

Syllabus by the Court

1. An injured plaintiff may not join the defendant's insurance carrier in a suit for damages filed against the defendant arising from a motor vehicle accident, unless the insurance policy or a statute authorizes such direct action.

2. W.Va.Code, 33-6-31, our uninsured motorist statute, does not authorize a direct action against the insurance company providing uninsured motorist coverage until a judgment has been obtained against the uninsured motorist.

Menis E. Ketchum, Greene, Ketchum, Bailey & Tweel, Huntington, Monty L. Preiser, Laurie J. Garrigan, Preiser & Wilson, Charleston, for plaintiff.

James D. McQueen, Huntington, for respondents.

Richard Conley; Lawrence J. Lewis, Vinson, Meek, Lewis & Pettit, Huntington, for State Farm.

G. Charles Hughes, Moundsville, amicus curiae, for The Association of Trial Lawyers of America.

MILLER, Justice:

The principal issue in this certified case is whether a plaintiff may bring a direct action against an insurance company without first obtaining a judgment against the insured. The Circuit Court of Wayne County certified two questions:

"1. Is a liability insurance carrier who insures a defendant in a civil action a real party in interest and an indispensable party in a civil action and properly includable as a defendant in a civil action?

"2. When an uninsured motorist is made a defendant in a civil action and is covered by liability insurance under another motorist's insurance policy for his neglect, may this insurance carrier be made a party defendant to the action as an indispensable party or real party in interest?"

We answer both questions in the negative.

This case arises from an automobile collision that occurred on U.S. Route 152 in Wayne, West Virginia on February 11, 1981. Wanda Sue Davis, a passenger in a car driven by her husband, Jack Davis, was injured when their car collided with a vehicle driven by Robert J. Robertson. Both drivers were named as defendants in a suit filed by Mrs. Davis in the Circuit Court of Wayne County. Jack Davis was represented by counsel provided by his insurance company, State Farm Mutual Insurance Company (State Farm). Robert J. Robertson, an uninsured motorist, represented himself.

Prior to trial, Robertson spoke with an agent of State Farm, Laurence J. Lewis, and learned that if he did not continue to appear and defend himself at trial, State Farm would pursue a subrogation claim against him for any amounts it was required to pay Wanda Sue Davis on account of his negligence. On the day of trial, plaintiff's counsel learned of this conversation and filed a motion to join State Farm as a real party in interest under W.Va.R.Civ.P. 17(a). ¹ The trial judge denied this motion and certified the issue to us.

I.

Earlier decisions in this jurisdiction clearly indicate that an injured plaintiff cannot join the defendant's insurance company in a suit for damages arising from a motor vehicle accident. An insurer cannot be joined as a defendant with an insured unless a right of joinder is conferred by statute or the terms of the policy itself. In Cramblitt v. Standard Acc. Ins. Co., 116 W.Va. 359, 180 S.E. 434 (1935); Lusk v. Lusk, 113 W.Va. 17, 166 S.E. 538 (1932); and Conwell v. Hays, 103 W.Va. 69, 136 S.E. 604 (1927), we held that an insurer could be joined where policy riders stated that the promises of the policies inured to the benefit of anyone suffering bodily injury or property damage because of the insured's negligence. We concluded that the policy language in effect constituted a direct liability to such persons "whether an action for damages [was] brought against the named assured or jointly with the company." 103 W.Va. at 70, 136 S.E. at 604. In two cases, joinder was not allowed because under our former pleading rule, a contract claim could not be joined with a tort claim. Shepherd v. Pocahontas Transp. Co., 100 W.Va. 703, 131 S.E. 548 (1926); O'Neal v. Pocahontas Transp. Co., 99 W.Va. 456, 129 S.E. 478 (1925).

We were presented in Campbell v. Campbell, 145 W.Va. 245, 114 S.E.2d 406 (1960), with a certified question concerning the right of a plaintiff to join her husband and his automobile insurer as codefendants. We held that the insurer was not a proper party, partly because there was no cause of action against the insurer until the liability of the insured had been established. This same reasoning was used in Jenkins v. J.C. Penney Cas. Ins. Co., 167 W.Va. 597, 280 S.E.2d 252 (1981), where we held that a violation of W.Va.Code, 33-11-4(9), relating to unfair insurance claim practices, gave rise to a cause of action against recalcitrant insurance companies. We concluded, however, that the suit could not be brought until the plaintiff's underlying suit against the insured had been resolved.

In Syllabus Point 1 of Broy v. Inland Mut. Ins. Co., 160 W.Va. 138, 233 S.E.2d 131 (1977), we stated that the necessary precondition for bringing suit against an insurer was a judgment against the insured: "If an insured with coverage under a liability insurance policy does not pay the underlying judgment entered in a personal injury action, the injured plaintiff may institute a direct action against the insurance company to recover the amount of the judgment up to the limits of the policy."

Our West Virginia rule that an insurance company may not be sued prior to judgment against the insured, absent contrary language in controlling statutes or the policy itself, is consistent with the rule adopted by a majority of other states. 8 J. Appleman & J. Appleman, Insurance Law & Practice § 4861 at 558-63 (1981); 12A G. Couch, Cyclopedia of Insurance Law §§ 45:784, :785 (rev. 2d ed. 1981); see Magras v. Puerto Rican American Ins. Co., 551 F.Supp. 427 (D.V.I.1982); Aetna Ins. Co. v. Pennsylvania Mfr's. Ass'n, 456 F.Supp. 627 (E.D.Pa.1978); Globe Indem. Co. v. Teixeira, 230 F.Supp. 444 (D.Hawaii 1963); Baughman v. Harbor Ins. Co., 450 So.2d 1090 (Ala.1984); Butler v. Sequeira, 100 Cal.App.2d 143, 223 P.2d 48 (1950); Smith v. Commercial Union Assur. Co., 246 Ga. 50, 268 S.E.2d 632 (1980); Seaboard Coastline R.R. Co. v. Freight Delivery Serv., Inc., 133 Ga.App. 92, 210 S.E.2d 42 (1974); Olokele Sugar Co. v. McCabe, 53 Hawaii 69, 487 P.2d 769 (1971); Pocattello Indus. Park Co. v. Steel West, Inc., 101 Idaho 783, 621 P.2d 399 (1980); White v. Goodville Mut. Cas. Co., 226 Kan. 191, 596 P.2d 1229 (1979); Davis v. Furlong, 328 N.W.2d 150 (Minn.1983); Chapman v. Farmers Ins. Group, 90 N.M. 18, 558 P.2d 1157 (Ct.App.1976); Zeigler v. Ryan, 63 S.D. 607, 262 N.W. 200 (1935); Russell v. Hartford Cas. Ins. Co., 548 S.W.2d 737 (Tex.Civ.App.1977). See generally Annot., 20 A.L.R.2d 1097 (1951); Annot., 7 A.L.R. 1003 (1920).

The plaintiff cites two cases from other jurisdictions where courts did not rely on statutory or policy provisions in allowing a direct action against, or joinder of, the insurance company, but we do not find them persuasive. One of these decisions, Shingleton v. Bussey, 223 So.2d 713 (Fla.1969), has been legislatively overruled. See Van Bibber v. Hartford Acc. & Indem. Ins. Co., 439 So.2d 880 (Fla.1983) (upholding Fla.Stat.Ann. § 626.7262 (1982) against constitutional challenge). The other decision, Seider v. Roth, 23 A.D.2d 787, 258 N.Y.S.2d 795 (1965), authorized a New York plaintiff to obtain quasi in rem jurisdiction over a Canadian motorist through attachment of the defendant's insurance policy. This, in a sense, is a type of direct action against the insurer, but it is doubtful whether the Seider rule is valid after Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). See Wallace v. Target Store, Inc., 92 Misc.2d 454, 400 N.Y.S.2d 478 (1977) (memorandum) (Shaffer overrules Seider ); Katz v. Umansky, 92 Misc.2d 285, 399 N.Y.S.2d 412 (1977) (same). But see O'Conner v. Lee-Hy Paving Corp., 437 F.Supp. 994 (E.D.N.Y.1977), aff'd, 579 F.2d 194 (2d Cir.), cert. denied, 439 U.S. 1034, 99 S.Ct. 639, 58 L.Ed.2d 696 (1978).

The plaintiff also relies on Anderson v. McDonald, 170 W.Va. 56, 289 S.E.2d 729 (1982), where we held in Syllabus Point 1 that:

"When a release of liability is obtained by the representative of an insurance company and in a negligence action against the insured, the insured pleads the release as an affirmative defense pursuant to W.Va.R.Civ.P. 8(c), and the plaintiff has moved to join the insurance company as a party to the action, the trial judge may join the insurance company as a party to the action pursuant to W.Va.R.Civ.P. 20."

We allowed joinder in that case because the insurance company had a "substantial interest" in the release issue, 170 W.Va. at 60, 289 S.E.2d at 734, and its insured had raised the release issue through a counterclaim seeking specific performance of the release. We concluded that the release issue had a substantial bearing on the plaintiff's ability to prevail and that since it was procured by the insurance company, the trial court did not abuse its discretion in joining the insurance company to avoid multiplicity of trials. We do not have any release issue in this case.

Furthermore, the insurance policy in this case does not authorize the plaintiff to bring suit against the insurance company prior to obtaining a judgment against the insured. Indeed, the policy expressly forbids joining the insured and the insurer as defendants in the same action. ²

Looking to our statutes, we find no language expressly authorizing direct action or joinder. The plaintiff does not argue that our Motor Vehicle Responsibility Safety Law authorizes direct action by requiring drivers to obtain liability insurance or some equivalent form of security before operating their vehicles upon any roadway in this state. ³ A similar argument was rejected in ...