State Farm Mut. Auto. Ins. Co. v. Norman

• Citation: 191 W.Va. 498,446 S.E.2d 720
• Decision Date: 11 July 1994
• Docket Number: No. 21853,21853
• Court: Supreme Court of West Virginia
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois Corporation, Plaintiff Below, Appellant, v. Betty M. NORMAN, administratrix of the Personal Estate of Rhonda Kay Barnett, Defendant Below, Appellee.

Page 720

446 S.E.2d 720

191 W.Va. 498

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, an Illinois

Corporation, Plaintiff Below, Appellant, v. Betty M. NORMAN, administratrix of the Personal Estate of

Rhonda Kay Barnett, Defendant Below, Appellee.

No. 21853.

Supreme Court of Appeals of

West Virginia.

Submitted January 19, 1994.

Decided July 11, 1994.

Syllabus by the Court

1. "The 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).

2. Absent specific coverage provisions to the contrary, uninsured motorist coverage is not available where an insured vehicle strikes a tire or other type of immobile object or debris which may be lying on a highway. In order to satisfy the "physical contact" requirement set forth in W.Va.Code § 33-6-31(e)(iii), it is necessary to establish a close and substantial physical nexus between an unidentified hit-and-run vehicle and the insured vehicle.

Kenneth R. Miller, Tamara J. DeFazio, Furbee, Amos, Webb & Critchfield, Fairmont, for appellant.

Jacques R. Williams, Hamstead, Hamstead & Williams, Morgantown, for appellee.

BROTHERTON, Chief Justice:

This case presents a certified question which evolved from an automobile accident that occurred on Interstate 79 near Morgantown, West Virginia, in the early evening hours of October 17, 1991.

Rhonda Kay Barnett was traveling south on the interstate in a 1991 Volkswagen Jetta. She was driving in the left-hand lane when she passed a tractor-trailer driven by Roy Leon Gaddis, who is believed to be the only witness to this accident. According to Mr. Gaddis, Ms. Barnett struck a large tire which was located on the edge of the left-hand, south-bound lane of the interstate. The tire went up in the air and came to rest in a ditch. Ms. Barnett lost control of her vehicle and ran it into a rock embankment on the right side of the road. She was thrown from her vehicle and landed on the roadway. Mr. Gaddis blocked traffic to prevent Ms. Barnett from being run over, but she died as the result of injuries sustained in the accident.

Mr. Gaddis states that there were no vehicles traveling in front of his truck at the time Ms. Barnett's Jetta came upon the tire. The tire was the size of one normally used on a semi-truck, and it had no rim attached to it. Mr. Gaddis does not know how the tire came to be on the highway.

However, in a separate civil action filed in this matter by Betty K. Norman, Administratrix of the Personal Estate of Rhonda Kay Barnett, against John Doe and the West Virginia Department of Highways (DOH), Mrs. Norman alleges that the truck tire had been on the highway for approximately eight hours prior to the fatal accident. In her complaint, Mrs. Norman indicates that several hours before the accident, a radio dispatcher from the West Virginia Department of Public Safety barracks in Morgantown had telephoned the DOH to inform them that a motorist had seen a truck tire in the passing lane of Interstate 79 near the 141 mile marker. The DOH employee stated, "O.K., we'll take care of it." The accident occurred nearly two hours later.

The 1991 Volkswagen Jetta Ms. Barnett was driving was insured by a policy issued by State Farm Mutual Automobile Insurance Company (State Farm) to Mrs. Norman, who was Ms. Barnett's grandmother, with whom she resided at the time of the accident. Mrs. Norman represents that she purchased the insurance coverage on September 5, 1991, at which time she exercised her option to buy additional uninsured motorist protection beyond the statutory minimum requirements. According to Mrs. Norman, the State Farm forms which she signed informed her that the additional coverage she was purchasing would protect her "[w]hen an accident is caused by an at-fault unidentified or at-fault uninsured driver." The policy contained uninsured motorist coverage with limits of $100,000.00 per person, $300,000.00 per accident, and $10,000.00 in property damage. A second policy issued to Mrs. Norman on a 1990 Chevrolet Cavalier had the same uninsured coverage limits.

After the accident, State Farm paid under the policy's collision coverage for damages to the car and under its medical-pay provisions for medical bills and funeral expenses. Mrs. Norman subsequently asserted a claim for the policy limits under the uninsured motorist coverage of both policies. State Farm denied this claim and filed a complaint for declaratory judgment, seeking a determination of its rights, duties, obligations, and liabilities under the policies issued to Mrs. Norman. Mrs. Norman filed an answer and a motion to dismiss, and discovery was undertaken, during which State Farm representative James Alonzo Smith and Mrs. Norman were deposed.

On March 7, 1993, State Farm filed a motion for summary judgment and a supporting memorandum addressing the issue of whether a tire of unknown origin lying on a highway is an uninsured motor vehicle as required for uninsured motorist coverage under the West Virginia Code and State Farm insurance policies.

Mrs. Norman subsequently moved for certification of the question to this Court. The United States District Court for the Northern District of West Virginia found that the issues presented "a difficult question of state law and policy on insurance" and, in an amended order dated August 19, 1993, the following question was certified to this Court for review and decision:

Whether uninsured motorist coverage is 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?

"Uninsured motorist insurance is a fault-based coverage which obligates insurers to provide indemnification for injuries caused by uninsured or unidentified motorists...." 1 Alan I. Widiss, Uninsured and Underinsured Motorist Insurance, § 9.2 at 443 (2d ed. 1992). Motorists in West Virginia are required by law to carry uninsured motorist protection. West Virginia Code § 33-6-31(b) (1992) requires that every motor vehicle liability insurance policy issued in the 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," ¹ within certain specified limits.

"When the cause of action is against an unknown ('hit and run') motorist, the proper procedure ... is to institute a 'John Doe' action pursuant to subsection (e)(iii) of West Virginia Code § 33-6-31." Lusk v. Doe, 175 W.Va. 775, 338 S.E.2d 375 (1985). The State Farm insurance policy includes the following within its definition of an "uninsured motor vehicle:"

2. 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.

In his treatise on uninsured and underinsured coverage, Alan I. Widiss explains that "[t]he coverage terms that define a 'hit-and-run' vehicle in terms of 'physical contact'--that is, 'contact' with either an insured or a vehicle in which an insured is an occupant--were designed to prevent fraudulent claims." Widiss, supra, § 9.2 at 443. Widiss states that "[b]y requiring that there be a 'physical contact' when the identity of an offending motorist was unknown, the drafters sought to foreclose claims arising from accidents that were allegedly--but not actually--caused by the operation of an unidentified vehicle." Id. West Virginia Code § 33-6-31(e)(iii) (1992) states that:

(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 with 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.... (Emphasis added.)

"The purpose of the 'John Doe' action, insofar as the uninsured motorist statute is concerned, is to establish liability of the unknown owner or operator and the amount of damages recoverable against the insured party's insurance carrier." Lusk, 338 S.E.2d at 378. However, "[i]n order for the insured to recover from the insurer, upon trial it must also be shown that the injuries were incurred after physical contact with the hit and run vehicle." Id.

In the State Farm policy at issue in this case, the uninsured motorist coverage endorsement provides that State Farm "will pay damages for bodily injury and property damage an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury or property damage must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle." State Farm representative James Alonzo Smith cited State Farm's opinion "that this tire or object in the highway would not be considered a motor vehicle" as the basis for State Farm's decision to deny Mrs. Norman's claim for uninsured motorist coverage.

State Farm now argues that it is clear from the statutory language in W.Va.Code § 33-6-31(e)(iii) that physical contact with a motor vehicle whose owner or operator is unknown is a necessary prerequisite to recovery of uninsured motorist benefits. State Farm concedes that there was...