Lusk v. Doe, 16637

• Decision Date: 17 December 1985
• Docket Number: No. 16637,16637
• Citation: 338 S.E.2d 375,175 W.Va. 775
• Court: West Virginia Supreme Court
• Parties: Wilma Mae LUSK, and Paul Lusk v. John DOE.

Page 375

338 S.E.2d 375

175 W.Va. 775

Wilma Mae LUSK, and Paul Lusk v. John DOE.

No. 16637.

Supreme Court of Appeals of

West Virginia.

Dec. 17, 1985.

Syllabus by the Court

1. "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. pt. 3, Aetna Casualty & Surety Company v. Federal Insurance Company of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

2. Under West Virginia Code § 33-6-31(e)(i) (Supp.1985), those injured in person or property are separate "insureds" for the purposes of the notice requirement. By the clear language of this provision, the twenty-four hour notice period is tolled as to insureds "physically unable to report the occurrence of such accident...." Although another person, whether it be another named or additional insured, or a friend, relative or witness to the accident, may report the accident on behalf of a physically injured insured, their failure to do so cannot prejudice those unable to make such report within the initial twenty-four hour period immediately following such accident.

G. David Brumfield, Welch, Robert M. Worrell, Pineville, for appellants.

Jack A. Mann, Beckley, for appellee.

McGRAW, Justice:

This is an appeal by the plaintiffs in the underlying action, Wilma Mae Lusk and Paul Lusk, her husband, from an order of the Circuit Court of Wyoming County entered on March 29, 1984, sustaining a motion to dismiss sought in behalf of the unknown defendant below, denominated as John Doe. The basis for the circuit court's dismissal was its conclusion that the plaintiffs had failed to comply with a statutory prerequisite to the bringing of a "John Doe" action as provided in West Virginia's uninsured motorist coverage provisions.

The pertinent circumstances leading up to this appeal are as follows. On the afternoon of March 25, 1982, the appellant, Wilma Mae Lusk, was involved in an accident while operating a motor vehicle on a public highway near Herndon in Wyoming County. There were no passengers in the car. According to Mrs. Lusk, she was sideswiped by a coal truck coming in the opposite direction, causing her to lose control of her car and wreck. The identity of the owner or operator of the truck that caused the accident has never been determined.

At the time of the accident, the appellants had complete automobile insurance coverage, including uninsured motorist coverage, with State Farm Mutual Automobile Insurance Company. Accordingly, the appellants instituted a "John Doe" action in the Circuit Court of Wyoming County pursuant to West Virginia Code § 33-6-31 (Supp.1985), and served a copy of the complaint and summons upon their insurance carrier, State Farm. In behalf of "John Doe," the insurance company filed an answer and motion to dismiss, denying liability on the part of "John Doe" and asserting that the appellants were barred from recovery due to failure to comply with the notice provisions contained in the uninsured motorist statute. The insurance company, as an additional bar to recovery under the appellants' uninsured motorist coverage, also denied there was "physical contact" between the appellants' vehicle and the unknown vehicle.

Pursuant to the motion to dismiss filed in behalf of the appellee, the circuit court held a hearing to determine whether the appellee was entitled, as a matter of law, to have the appellants' complaint dismissed. At the hearing the court received testimony and other evidence from both sides concerning the accident and the events which followed.

We note that although the circuit court's disposition of the action below was pursuant to a motion to dismiss under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, the court's final ruling on the appellee's motion was made after an evidentiary hearing where matters outside the pleadings were made part of the record for consideration. In such a case, the court should treat the motion as one for summary judgment under Rule 56. See W.Va.R.Civ.P. 12(c); West v. National Mines Corp., 168 W.Va. 578, 285 S.E.2d 670, 674 (1981); see also Syl. pt. 2, Chapman v. Kane Transfer Company, 160 W.Va. 530, 236 S.E.2d 207 (1977); Wilfong v. Wilfong, 156 W.Va. 754, 756, 197 S.E.2d 96, 98 (1973); Barker v. Traders Bank, 152 W.Va. 774, 778, 166 S.E.2d 331, 334 (1969). Accordingly, we will review the circuit court's disposition of the appellee's motion under the guiding standard that, "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. pt. 3, Aetna Casualty & Surety Company v. Federal Insurance Company of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

The appellant, Wilma Mae Lusk, testified in the circuit court hearing that, on the afternoon of March 25, 1982, upon rounding a blind curve near Herdon she encountered a large coal truck coming from the opposite direction in her lane. She stated that she attempted to avoid a head-on collision and that the two vehicles nevertheless "scraped metal," causing her to lose control of her car and run off the road, coming to rest in an adjacent creek. Mrs. Lusk further testified that she received substantial head and facial injuries and was immediately taken to a hospital, where she remained for approximately eight days.

Mrs. Lusk's sister-in-law, Martha Coffman, testified that on the day following the accident she went to the office of the Lusks' State Farm agent and reported the accident; that Mrs. Lusk had been injured; and that no one knew the identity of the owner or driver of the truck that forced Mrs. Lusk off the road. Eugene Lusk, brother of the appellant, Paul Lusk, also testified at the hearing. He testified that on the Sunday following the accident he visited Mrs. Lusk in the hospital and, based upon information given by her, filled out a Department of Motor Vehicles (DMV) accident report form and had her sign it.

The appellant, Paul Lusk, testified that he went to the insurance agent's office the following Monday to provide information concerning the accident, and was told to return on Tuesday, the day the insurance adjuster made his regular visit to the agent's office. Mr. Lusk stated that he returned the next day and talked with the agent and the adjuster. He testified that he was asked by the agent whether there was actual physical contact between the car driven by his wife and the coal truck, and in response stated, "I told him I wasn't there, I wasn't for sure about it, but the wife says there was contact." Mr. Lusk also testified that earlier on the same Tuesday he made a photocopy of the completed (DMV) accident report and took the original to the insurance agent's office, where the agent filled in the required insurance information. Mr. Lusk stated that he mailed it to the Department of Motor Vehicles in Charleston on the same date. A copy of the DMV accident report was admitted as evidence in the hearing below.

In support of the motion to dismiss the insurance company called Iris Belcher, an employee of the insurance agency, who confirmed that the day following the accident she filled out a claim report based upon information given to her by Mrs. Coffman. The claim report was introduced and admitted into evidence. In response to questioning, Iris Belcher stated that her inscription on the report, "No P.D.," meant to her that no other vehicle was involved in the accident. Later in her testimony, when asked why she marked down on the form "No P.D.," she replied that she specifically recalled asking Mrs. Coffman whether there had been physical contact between vehicles and that Mrs. Coffman had said she didn't know. ¹

Glen McKinney, the appellants' insurance agent testified that neither of the appellants nor anyone in their behalf ever reported that there had been physical contact between the Lusk vehicle and the unidentified truck. He further testified that he was not notified by the appellants, within sixty days of the accident, of a potential claim under their uninsured motorist coverage. The insurance adjuster for the agency also testified that he could not recall any reference being made concerning a possible uninsured motorist claim before July of 1982. Finally, the insurance company submitted an affidavit dated June 10, 1983, of the Director of the Safety and Enforcement Division of the West Virginia DMV, stating that an examination of the DMV records indicated that no report concerning the accident was on file as of that date.

On March 29, 1984, the circuit court entered an order sustaining the motion to dismiss filed in behalf of the appellee, John Doe. The circuit court concluded that because both appellants were named insureds under their automobile policy, Paul Lusk's failure to report the accident within twenty-four hours was fatal to the maintenance of the "John Doe" action brought under the provisions of West Virginia Code § 33-6-31(e) (Supp.1985).

This appeal presents questions involving the construction and application of certain provisions of West Virginia Code § 33-6-31 (Supp.1985), which, in substantial part, concerns uninsured motorist coverage and the procedures to be followed when an injury to person or property is precipitated by an uninsured driver. Subsection (b) of this statute requires that every motor vehicle liability insurance policy issued in this State "contain an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle," of no less than certain specified monetary limits. The statute also sets out certain requirements to be followed when suing an uninsured owner or operator when, ultimately, the injured party or parties intend to rely upon their own...