Willard v. Aetna Cas. & Sur. Co.
| Decision Date | 15 January 1973 |
| Citation | 213 Va. 481,193 S.E.2d 776 |
| Parties | , 83 A.L.R.3d 302 Cedric Skoval WILLARD v. The AETNA CASUALTY AND SURETY COMPANY. |
| Court | Virginia Supreme Court |
William F. Stone, Jr., Martinsville (William F. Stone, David B. Worthy, Stone, Joyce, Worthy & Stone, Martinsville, on brief), for plaintiff in error.
J. R. Canterbury, Salem (Kime, Jolly, Clemens & Canterbury, Salem, on brief), for defendant in error.
Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.
Cedric Skoval Willard, plaintiff, filed a motion for judgment against The Aetna Casualty and Surety Company (Aetna), his automobile liability insurance carrier, for damages resulting from personal injuries he sustained in an accident which occurred on Route No. 220 in Henry County, Virginia.
It was alleged in the motion that on December 19, 1969, 'an unidentified motorist was operating a Ford pick-up truck in the same direction as the plaintiff and did negligently, recklessly and carelessly operate said . . . truck into the . . . Buick automobile operated by the plaintiff, causing the said Buick automobile to go out of control, leave the traveled portion of the highway, and causing severe and permanent injuries to the plaintiff.'
It was further alleged that plaintiff's vehicle was covered by the 'Family Protection' uninsured motorist provision in a policy that was issued to him by Aetna in North Carolina. The record shows that plaintiff paid a premium for this coverage. At the time of the accident, he was a resident of North Carolina where his insured vehicle was principally garaged.
Aetna filed a demurrer to the motion for judgment. After hearing argument, the trial court sustained the demurrer and dismissed the action on the ground that plaintiff had not 'stated a cause of action cognizable under applicable law in this Court.' Plaintiff has assigned error to the court's ruling.
The critical question presented under the assignment of error is whether Aetna is subject to a direct suit in a Virginia court by its insured, Willard, before the liability of the unknown motorist is litigated and determined.
Under Virgina law, Aetna would not be subject to an action in contract on its uninsured motorist endorsement until judgment in tort had been entered against the unknown defendant as 'John Doe.' See Code § 38.1--381(e); Rodgers v. Danko, 204 Va. 140, 143, 129 S.E.2d 828, 830 (1963).
However, § 20--279.21(b)(3) b of North Carolina General Statutes provides in part:
'Where the insured, under the uninsured motorist coverage, claims that he has sustained bodily injury as the result of collision between motor vehicles and asserts that the identity of the operator or owner of a vehicle (other than a vehicle in which the insured is a passenger) cannot be ascertained, The insured may institute an action directly against the insurer . . ..' (Italics supplied.)
By statute, this section is written into every automobile liability policy issued in North Carolina. N.C.G.S. § 20--279.21(b)(3); Lichtenberger v. American Motorists Insurance Co., 7 N.C.App. 269, 272, 172 S.E.2d 284, 286 (1970).
In order to determine whether Willard can maintain his action, we must decide whether the North Carolina direct action provision is substantive or procedural. In transitory actions, matters of substantive law are governed by the law of the place of the transaction, and matters of remedy and procedure are governed by the law of the place where the action is brought. See Pritchard v. Norton, 106 U.S. 124, 129, 1 S.Ct. 102, 27 L.Ed. 104 (1882); State of Maryland v. Coard, 175 Va. 571, 580--81, 9 S.E.2d 454, 458 (1940). The court of the forum state determines according to its own conflict of laws rules whether a question of law is substantive or procedural. Grain Dealers Mutual Insurance Co. v. Van Buskirk, 241 Md. 58, 67, 215 A.2d 467, 472 (1965).
In our view, the direct action provision is an integral part of the statute. It goes to the very right of the action, and we hold that it is a matter of substantive law. See Collins v. American Automobile Insurance Company, 230 F.2d 416 (2d Cir. 1956), cert. dismissed, 352 U.S. 802, 77 S.Ct. 20, 1 L.Ed.2d 37 (1956); Oltarsh v. Aetna Insurance Company, 15 N.Y.2d 111, 256 N.Y.S.2d 577, 204 N.E.2d 622 (1965). See generally Annot., 16 A.L.R.2d 881 (1951).
Aetna argues that even if we hold that the direct action provision is substantive, we should...
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