Walker v. Doe, 29290.

• Decision Date: 25 October 2001
• Docket Number: No. 29290.,29290.
• Citation: 210 W.Va. 490,558 S.E.2d 290
• Court: West Virginia Supreme Court
• Parties: Irene WALKER, Plaintiff Below, Appellant, v. John DOE, Defendant Below, Appellee.

558 S.E.2d 290

210 W.Va. 490

Irene WALKER, Plaintiff Below, Appellant, v. John DOE, Defendant Below, Appellee.

No. 29290.

Supreme Court of Appeals of West Virginia.

Submitted September 18, 2001.

Decided October 25, 2001.

Concurring and Dissenting Opinion of Justice Starcher November

1, 2001. Concurring and Dissenting Opinion of Chief Justice McGraw January 11, 2002.

E. Dixon Ericson, John R. Mitchell, Sr., John R. Mitchell, L.C., Charleston, for the Appellant.

Sabrena A. Olive, Ellen R. Archibald, Kesner, Kesner & Bramble, Charleston, for the Appellee.

ALBRIGHT, Justice.

Appellant Irene Walker challenges the September 25, 2000, ruling of the Circuit Court of Fayette granting summary judgment to Appellee Allstate Indemnity Company ("Allstate"),¹ appearing and defending in the name of an unidentified motorist. Appellant argues that the circuit court erred in relying on this Court's decision in Dalton v. Doe, 208 W.Va. 319, 540 S.E.2d 536 (2000), in which we affirmed the lower court's decision not to apply retroactively the holding in Hamric v. Doe, 201 W.Va. 615, 499 S.E.2d 619 (1997), establishing certain conditions under which the absence of direct physical contact does not bar recovery in uninsured motorist actions.² In seeking a reversal of the lower court's ruling, Appellant asserts that both the per curiam nature of Dalton and this Court's pronouncements regarding per curiam opinions proscribe any reliance on Dalton by the circuit court. Expressly rejecting Appellant's attempt to unduly limit the precedential value attached to this Court's per curiam decisions, we affirm the lower court's decision.

I. Factual and Procedural Background

Following Appellant's involvement in a motor vehicle accident on October 4, 1997, in which her vehicle was allegedly forced off the road by an unidentified motorist, she sought and was denied uninsured motorist coverage under an automobile insurance policy issued by Allstate. Appellant then instituted an uninsured motorist cause of action on September 29, 1999. See W. Va.Code § 33-6-31(e)(iii) (1998) (Repl.Vol.2000).

While the underlying case was in the discovery phase, this Court issued the Dalton decision.³ Allstate filed a motion for summary judgment on July 31, 2000, arguing that under Dalton there was no insurance coverage given this Court's clarification that Hamric was to be applied on a prospective basis only. After hearing arguments on August 10, 2000, concerning the summary judgment motion, the lower court ruled in favor of Allstate on September 5, 2000. Through this appeal, Appellant seeks a reversal of that ruling.

II. Standard of Review

Our review is de novo as the order appealed from is a summary judgment ruling. See Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

III. Discussion

A. Hamric and Dalton

While the issue before us is limited to whether the lower court erroneously applied Dalton in ruling on Allstate's summary judgment motion, a recitation of the law declared in Hamric enables a full appreciation of the arguments raised by Appellant. Hamric presented by certified question the issue of whether a pedestrian who was injured while taking action to avoid being hit by an unidentified vehicle could recover under this state's uninsured motor vehicle statute.⁴ To resolve this question, we found it necessary to define the phrase "close and substantial physical nexus," which we had used previously to explain the "physical contact" requirement of West Virginia Code § 33-6-31(e)(iii). See State Farm Mut. Auto. Ins. Co. v. Norman, 191 W.Va. 498, 446 S.E.2d 720 (1994)

. After recognizing that "absolute enforcement of the physical contact requirement is contrary to public policy," we determined in Hamric that "the physical contact requirement should not bar recovery when there is sufficient independent third-party evidence to conclusively establish that the sequence of events leading to an injury was initially set in motion by an unknown hit-and-run driver or vehicle." 201 W.Va. at 620,

499 S.E.2d at 624. In accordance with these principles we held in syllabus point three of Hamric that

A close and substantial physical nexus exists between an unidentified hit-and-run vehicle and the insured for uninsured motorist insurance coverage under W.Va. Code § 33-6-31(e)(iii) when an insured can establish by independent third-party evidence to the satisfaction of the trial judge and the jury, that but for the immediate evasive action of the insured, direct physical contact would have occurred between the unknown vehicle and the victim.

201 W.Va. at 616, 499 S.E.2d at 620.⁵

Because the decision announced in Hamric did not address whether it was to be applied prospectively or retroactively, the appellant in Dalton sought a ruling from this Court on the issue of Hamric's reach. After applying the factors announced in Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979),⁶ we concluded in Dalton that "the Hamric decision should be given only prospective effect."⁷208 W.Va. at 323,540 S.E.2d at 540.

Despite the clear pronouncement in Dalton regarding the prospective effect to be accorded Hamric, Appellant urges this Court to find error in the lower court's reliance on Dalton. In support of her position, Appellant argues that a per curiam decision, like Dalton, has no precedential value beyond the facts of the case resolved therein. Secondarily, Appellant urges this Court to ignore Dalton and apply Hamric since the remedial principles underlying Hamric are similarly present in her case.

B. Per Curiam Decisions

We first address the primary contention raised by Appellant—that a per curiam decision has no precedential value. Appellant acknowledges the source of her authority for this position as being footnote four from Lieving v. Hadley, 188 W.Va. 197, 423 S.E.2d 600 (1992), which stated the following:

It is important to point out this Court's traditional approach to per curiam opinions. Per curiam opinions, such as Rowan, are used to decide only the specific case before the Court; everything in a per curiam opinion beyond the syllabus point is merely obiter dicta. A per curiam opinion that appears to deviate from generally accepted rules of law is not binding on the circuit courts, and should be relied upon only with great caution. Other courts, such as many of the United States Circuit Courts of Appeals, have gone to non-published (not-to-be-cited) opinions to deal with similar cases. We do not have such a specific practice, but instead use published per curiam opinions. However, if rules of law or accepted ways of doing things are to be changed, then this Court will do so in a signed opinion, not a per curiam opinion.

Id. at 201, n. 4, 423 S.E.2d at 604 n. 4.

At the outset of this discussion, we acknowledge that the quoted footnote language from Lieving has caused much confusion concerning the use of per curiam decisions. Through this opinion we intend to address how this Court views per curiam opinions and, in so doing, we aim to extinguish any lingering doubts regarding the precedential value of such opinions. Before addressing the significance of per curiam decisions in West Virginia, we note that there is little consensus within the legal community regarding the use of per curiam decisions. To illustrate this point, we note that the definition provided by Corpus Juris Secundum states that a "`[p]er curiam opinion' is an opinion of the court in a case in which the judges are all of one mind, and which is so clear that it is not considered necessary to elaborate it by an extended discussion." 21 C.J.S. Courts § 170 (1990); accord 20 Am. Jur.2d Courts § 39 (1995) ("Where all the judges of a court agree on the opinion and the question involved is clear, the court may issue a `per curiam' opinion with limited discussion of the issue in the opinion"). Black's Law Dictionary, cited by the lower court in its order, defines "per curiam" as meaning "[b]y the court" and further indicates that it is "[a] phrase used to distinguish an opinion of the whole court from an opinion written by any one judge." Black's Law Dictionary 1136 (6th ed.1990).

In contrast to this academic notion that per curiam opinions are limited to those decisions in which the court is of one mind, we note the practice of the United States Supreme Court to use per curiam opinions in those cases "when the justices are very badly divided" and can only agree to the judgment and basic holding of the case. Stephen L. Wasby, Steven Peterson, James Schubert & Glenn Schubert, "The Per Curiam Opinion: It's Nature and Functions," 76 Judicature 29, 30 (June/July 1992); see, e.g., Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000)

; Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Although the United States Supreme Court initially used per curiam opinions solely in conjunction with instances of "`indisputably clear' substantive law," that is no longer the situation as the high court uses this type of opinion for a variety of cases,⁸ including those cases where the court cannot reach a consensus as to the reasoning underlying a particular decision.⁹ Judicature, supra, at 30.

With this brief explanation, we proceed to address how per curiam decisions have been viewed by the West Virginia courts and bar in the past and how they are to be viewed from this point forward. Our apparently unique constitutional provision,¹⁰ which requires the use of syllabus points in our opinions,¹¹ has impacted how this Court distinguishes between those opinions that are issued under a particular justice's name and those that bear the per curiam designation. Article VIII, section 4 of our state constitution provides that: "[I]t shall be the duty of the court to prepare a syllabus of the points adjudicated in each case in which an opinion is written and in which a majority of the justices thereof concurred, which shall be prefixed to the published report of ...