Nationwide Mut. Ins. Co. v. Finley

• Court: Virginia Supreme Court
• Writing for the Court: Before I'ANSON; PER CURIAM
• Citation: Nationwide Mut. Ins. Co. v. Finley, 214 S.E.2d 129, 215 Va. 700 (1975)
• Decision Date: 28 April 1975
• Docket Number: No. 740578,740578
• Parties: NATIONWIDE MUTUAL INSURANCE COMPANY v. Ruby S. FINLEY. Record

Page 129

214 S.E.2d 129

215 Va. 700

NATIONWIDE MUTUAL INSURANCE COMPANY v. Ruby S. FINLEY.

Record No. 740578.

Supreme Court of Virginia.

April 28, 1975.

William F. Stone, Jr., Martinsville (Stone, Joyce, Worthy & Stone, Martinsville, on brief), for plaintiff in error.

Jackson L. Kiser, Martinsville (Young, Kiser, Haskins & Mann, Ltd., Martinsville, on brief), for defendant in error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

PER CURIAM.

Ruby S. Finley (plaintiff) was injured when the automobile in which she was a passenger was involved in a collision with a truck. She filed a motion for judgment against the owner of the truck and its operator and served a copy upon Nationwide Mutual Insurance Company (Nationwide) which provided uninsured motorist coverage on the automobile. Nationwide appeared by counsel, filed a pleading in its own name, and, in the absence of the named defendants, defended the case. On April 2, 1973, the trial court entered an order providing that 'in accordance with the jury's verdict, the plaintiff recover from the defendants $25,000.00.' The judgment order did not award costs or interest. Nationwide filed a notice of appeal and assigned error to an instruction. By order entered November 9, 1973, we denied Nationwide a writ of error.

On November 26, 1973, Nationwide paid plaintiff $20,000.00, the policy limit of its uninsured motorist coverage. Thereafter, plaintiff filed a motion for judgment against Nationwide claiming a total of $848.23, representing $68.50 in court costs on the April 2, 1973, judgment and $779.73 in interest on Nationwide's $20,000.00 liability from the date of the judgment to the date it made payment. By final order entered February 20, 1974, the trial court overruled Nationwide's demurrer and awarded plaintiff judgment on her total claim, plus costs and interest.

The sole assignment of error is that the trial court 'erred in overruling the defendant's demurrer'. Nationwide argues that 'an insurer providing uninsured motorist coverage insurance is (not) liable for Court costs incurred by its insured in recovering judgment against an uninsured tort-feasor' or for 'interest accrued on such judgment'.

As to liability for court costs, we agree. The statutes do not make the uninsured motorist insurer a party to the tort action, and we have expressly held that it is not. Doe v. Brown, 203 Va. 508, 515, 125 S.E.2d 159, 164 (1962). At common law, costs were not allowed, and 'allowance of costs depends entirely upon statute'. Scott v. Doughty, 130 Va. 523, 526, 107 S.E. 729, 730 (1921). Code § 14.1--178 (Repl.Vol.1973) allows the prevailing party costs 'against the opposite party'. We hold that, absent a commitment in the policy to the contrary, an insurer providing uninsured motorist coverage insurance is not liable for court costs incurred by its insured in recovering judgment against an uninsured tort-feasor. ¹ Nothing in the language of the statutes indicates that the General Assembly intended such an insurer to be liable for such court costs, either as a part of or as an addition to the coverage required.

As to liability for interest, we disagree with Nationwide's argument. Interest liability, an obligation imposed by one statute, is separate and distinct from the contract liability imposed by another statute. As we will show, the fact that an uninsured motorist insurer is not a party to the tort action gives it no exemption from the statutory obligation to pay interest.

Code § 38.1--381(b) (Repl.Vol.1970) requires every automobile insurance policy to contain '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, within limits which shall be no less than the...