Hamric v. Doe

• Citation: 201 W.Va. 619,499 S.E.2d 619
• Decision Date: 05 December 1997
• Docket Number: No. 23964.,23964.
• Court: Supreme Court of West Virginia
• Parties: Vernon R. HAMRIC and Debra Hamric, Individually and as Guardians and Next Friends of Stacey Hamric, Appellants, v. John DOE and State Farm Mutual Automobile Insurance Company, Appellees.

499 S.E.2d 619

201 W.Va. 619

Vernon R. HAMRIC and Debra Hamric, Individually and as Guardians and Next Friends of Stacey Hamric, Appellants, v. John DOE and State Farm Mutual Automobile Insurance Company, Appellees.

No. 23964.

Supreme Court of Appeals of West Virginia.

Submitted September 17, 1997.

Decided December 5, 1997.

Scott S. Segal, Mark R. Staun, Lori A. Simpson, Charleston, for Appellants.

R. Carter Elkins, Laura L. Gray, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Huntington, for Appellees. MAYNARD, Justice:

Facts

In this case we are presented with two certified questions from the Circuit Court of Fayette County, West Virginia, regarding whether uninsured motorist coverage and/or medical payment coverage will be made available to Stacey Hamric under the insurance policies issued to her father by State Farm Mutual Automobile Insurance Company (State Farm).

The questions certified to this Court and the circuit court's answers are:

1. Whether the physical contact requirement of W.Va.Code § 33-6-31(e)(iii) is satisfied so that uninsured motorist coverage is available to Stacey Hamric, who was injured as a pedestrian while avoiding being struck by a vehicle driven by an unknown driver.

Circuit court's answer: NO

2. Whether the provisions of the State Farm policies providing medical payment coverage which provide that "the bodily injury through being struck as a pedestrian by a motor vehicle" prior to being applicable are satisfied when Stacey Hamric was injured as a pedestrian while avoiding being struck by a vehicle driven by an unknown driver.

Circuit court's answer: NO

The facts are not in dispute and were stipulated by the parties below. On September 9, 1994, Stacey Hamric, then twelve years old, and her friends, Leann Frame, Kirk Frame, and Hanna Frame, traveled from Braxton County to Midland Trail High School in Fayette County to attend a football game. The minors were accompanied to the game by adults George Keener, Audrey Keener, and Terry Frame. Upon arrival at Midland Trail High School, Terry Frame parked her vehicle on the berm of Route 60 across the road from the school since no parking was available on school property.

When the game ended, Terry Frame and Audrey Keener accompanied Stacey Hamric, Kirk Frame, and Hanna Frame out of the gate of Midland Trail High School, where they walked onto the berm of Route 60 and waited for traffic to clear so they could cross the road. While they were waiting, a vehicle operated by an unknown driver traveling on Route 60 swerved off the paved portion of the road surface and continued onto the berm directly toward the group. Terry Frame saw the careening vehicle bearing down on them and yelled to the children to get out of the way. Stacey Hamric jumped or was pushed by Terry Frame off the berm down into a ravine. The fall caused her to fracture her left ankle and leg. The parties all agree the unknown vehicle did not strike Stacey. The parties also agree that had Stacey not jumped out of the path of the oncoming vehicle, the vehicle unquestionably would have struck her.

Stacey is the daughter of Vernon Hamric and Debra Hamric. As a relative and a resident of her parents' home, Stacey qualifies as an additional insured under the six policies of automobile liability insurance issued by State Farm to Vernon Hamric. The six policies had the following pertinent coverages in force and effect on September 9, 1994:

1. Policy number 2494 489 48 providing medical payment coverage of $100,000 and uninsured motorist coverage of $100,000 per person and $300,000 per occurrence;

2. Policy number 2406 701 48 providing medical payment coverage of $25,000 and uninsured motorist coverage of $100,000 per person and $300,000 per occurrence;

3. Policy number 2175 661 48 providing medical payment coverage of $100,000 per person and uninsured motorist coverage of $100,000 per person and $300,000 per occurrence;

4. Policy number 1286 865 48 providing medical payment coverage of $25,000 and uninsured motorist coverage of $100,000 per person and $300,000 per occurrence;

5. Policy number 1970 899 48 providing medical payment coverage of $100,000 and uninsured motorist coverage of $100,000 per person and $300,000 per occurrence; and

6. Policy number 2070 788 48 providing medical payment coverage of $100,000 and uninsured motorist coverage of $100,000 per person and $300,000 per occurrence.

Vernon Hamric and Debra Hamric filed an action against John Doe and State Farm in circuit court, seeking recovery for the injuries sustained by their minor daughter. The Hamrics brought a declaratory judgment action asking the court to determine whether the uninsured motorist coverage and medical payments coverage were available under the policies issued by State Farm to Vernon Hamric. The Hamrics request recovery for payment of medical bills, gratuitous home health care, loss of consortium, mental anguish, loss of enjoyment of life and emotional distress.

The parties filed cross motions for summary judgment on the declaratory judgment action. The circuit court's September 27, 1996 order granted State Farm's motion for summary judgment by declaring that no uninsured motorist coverage benefits or medical payment benefits were available to the Hamrics because there had been no physical contact between the unknown vehicle and Stacey Hamric. The two questions previously noted were then certified to this Court.

I. The Uninsured Motorist Statute Issue

The circuit court's first certified question to this Court is framed as follows:

Whether the physical contact requirement of West Virginia Code § 33-6-31(e)(iii) is satisfied so that uninsured motorist coverage is available to Stacey Hamric, who was injured as a pedestrian while avoiding being struck by a vehicle driven by an unknown driver.

W.Va.Code § 33-6-31 provides a mechanism by which insureds may recover uninsured motorist coverage benefits for bodily injury or property damage caused by an uninsured motor vehicle whose driver or operator is unknown. The statute encompasses the definition of a "hit and run" motor vehicle. W.Va.Code § 33-6-31(e)(iii) (1995) states in pertinent part:

(e) If the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured be unknown, the insured, or someone in his behalf, in order for the insured to recover under the uninsured motorist endorsement or provision, shall:

(iii) Upon trial establish that the motor vehicle, which caused the bodily injury or property damage, whose operator is unknown, was a "hit and run" motor vehicle, meaning a motor vehicle which causes damage to the property of the insured arising out of physical contact of such motor vehicle therewith, or which causes bodily injury to the insured arising out of physical contact of such motor vehicle with the insured or with a motor vehicle which the insured was occupying at the time of the accident. If the owner or operator of any motor vehicle causing bodily injury or property damage be unknown, an action may be instituted against the unknown defendant as "John Doe", in the county in which the accident took place or in any other county in which such action would be proper under the provisions of article one [§ 56-1-1 et seq.], chapter fifty-six of this code[.] (Emphasis added).

The State Farm policies issued to Mr. Hamric state that an "[u]ninsured [m]otor [v]ehicle means ... a `hit-and-run' motor vehicle whose owner or driver remains unknown and which strikes:

a. the insured,

b. the vehicle the insured is occupying, or

c. other property of the insured and causes bodily injury to the insured or property damage."

The parties agree the State Farm policies conform to the statutory requirements. The question we must answer is whether uninsured motorist coverage is available to Stacey Hamric under the particular set of facts presented in this case; in other words, we must determine the meaning of "physical contact" and "strikes" under West Virginia law. To begin with, we reiterate that "`[t]he uninsured motorist statute, West Virginia Code § 33-6-31 (Supp.1986), is remedial in nature and, therefore, must be construed liberally in order to effect its purpose.' Syllabus point 7, Perkins v. Doe, 177 W.Va. 84, 350 S.E.2d 711, 714 (1986)." Syllabus Point 1, State Farm Mut. Auto. Ins. Co. v. Norman, 191 W.Va. 498, 446 S.E.2d 720 (1994).

In the Perkins case, the Perkins, who were West Virginia residents, were traveling in Virginia when an oncoming unknown motorist crossed left of center and into the Perkins' lane, thereby causing Mr. Perkins to swerve to avoid the oncoming vehicle. The Perkins' vehicle struck an embankment and Mr. Perkins was rendered a quadriplegic. Unlike West Virginia, Virginia had no statutory "physical contact" requirement. This Court was asked to determine whether to apply Virginia or West Virginia law. This Court was also asked to determine whether any public policy or legal doctrine of West Virginia would operate to bar the Perkins' uninsured motorist claim. This Court concluded the law of Virginia applied and that "no public policy or legal doctrine operate[d] to bar the Perkins' claim on the uninsured motorist endorsement." Perkins, 177 W.Va. at 87, 350 S.E.2d at 715 (footnote omitted).

More recently, in State Farm Mut. Auto Ins. Co. v. Norman, 191 W.Va. 498, 446 S.E.2d 720 (1994), this Court was asked to determine "[w]hether uninsured motorist coverage [was] available pursuant to W.Va. Code § 33-6-31 (1988) and State Farm policies of insurance for the death of an insured driver whose vehicle struck a tire of unknown origin lying on a public highway[.]" Norman, 191 W.Va. at 500, 446 S.E.2d at 722. In Norman, Ms. Barnett struck a large tire which was located on the edge of the left-hand lane of the interstate. She lost control of her vehicle, which then ran into a rock embankment. Ms. Barnett was thrown from the car and died as a result of the injuries she received. This...