
    CIRCUIT COURT OF ALBEMARLE COUNTY
    Mary B. Hodges v. Donald Perry
    Case No. (Law) CL97-6643
    September 15, 1997
   By Judge Paul M. Peatross, Jr.

This matter comes before file Court on the Motion to Compel Discovery filed by Plaintiff against State Farm Mutual Automobile Insurance Company, who is the underinsured carrier for Plaintiff who was given notice pursuant to Section 38.1*2206 of the Code of Virginia of 1950, as amended by being served with a copy of the Motion for Judgment.

Plaintiff filed first interrogatories to State Farm on July 10, 1997. State Farm filed objections to the Plaintiffs first set of discovery on July 15,1997. On or about August 12, 1997, State Farm filed its response to Request for Production of Documents and supplemental sheet representing State Farm’s answer to first interrogatories.

The first ground for the Motion to Compel was that State Farm Med to answer interrogatory number 1 which required the name, address, and telephone number of fire individual answering the interrogatories on behalf of State Farm. The answers to the discovery were in file name of State Farm, by counsel, and no agent or representative of file company signed file answers before a notary public.

Although Rule of Court 4:8 governing interrogatories and Rule 4:9 governing production of documents indicate discovery on any other “party,” State Farm has filed a Grounds of Defense in its behalf and by filing a response, this Court rules that it must answer the interrogatories under oath under the procedures noted in die Rules of the Supreme Court ofVirginia.

With respect to interrogatory number 5, the Court finds that State Farm has failed to answer die interrogatory as required, and die Court orders State Farm to file a complete answer addressing all of die questions propounded within ten days of entry of an order by the Court.

Regarding interrogatory number 8, State Farm has objected on die grounds that State Farm is protected by the Work Product Doctrine. The court sustains this objection.

Regarding interrogatory number 9, State Farm makes the same objection, but the Court finds this interrogatory does not ask for work product but fact witnesses having knowledge of plaintiffs health. The objection is overruled. State Farm is ordered to comply within ten days of entry of an order by the Court

As to the Request for Production of Documents, the Court orders that State Farm produce a copy of die applicable policy within ten days of the date of the entry of an order on this Motion to Compel With respect to Request for Production of Documents Number 7, the Court sustains the objection as this information is equally available to plaintiff by subpoena.

October 6,1997

Mary B. Hodges filed a Motion for Judgment alleging that Donald Perry caused her injuries in an automobile accident on May 20, 1994, which resulted from his negligence. At the time of the accident, Mary B. Hodges was covered as the principal insured under the uninsured or underinsured motorist provision of a motor vehicle public liability policy issued to her by State Farm Mutual Automobile Insurance Company. State Farm was served in this suit pursuant to § 38.2-2206QB) of die Code of Virginia of 1950, as amended.

State Farm Mutual Automobile Insurance Company filed a Grounds of Defense in its own name. State Farm further stated in its Grounds of Defense as follows:

7. These responsive pleadings are filed by The Company in its own name pursuant to the authority granted by Virginia Code §38.2-2206(F). These responsive pleadings are also filed in the name of the defendant for the sole purpose of preventing a default judgment against the defendant, and the undersigned attorney for The Company will not undertake to represent the defendant, but will represent toe interest of The Company.

Thereafter Plaintiff filed a Motion for Default Judgment no because responsive pleadings were filed by or on behalf of Donald Perry.

Question Presented

Is Donald Perry in default, thereby entitling toe Plaintiff to a default judgment even though State Farm filed a Grounds of Defense, including paragraph 7 quoted above?

Discussion of Law

I. The Competing Interests Sought to be Protected by the Uninsured Motorist Statute

Under § 38.2-2206(A) of toe Virginia Code, an insurance company is obligated to pay one of its policyholders with uninsured motorist coverage "all sums thaf he is legally entítled to recover as damagtó fiom the owner or operator of an uninsured motor vehicle.” The Virginia Supreme Court has stated that ”the Virginia uninsured motorist legislation is remedial in nature, being for toe purpose of protecting through their own insurers toe innocent victims of irresponsible motorists.” State Farm Mutual v. Brower, 204 Va. 887, 892 (1964). The Court has further declared that, "toe legislation having been enacted for toe benefit of toe injured parties, it is to be liberally construed so that toe purpose intended may be accomplished.” Storm v. Nationwide Ins. Co., 199 Va. 130, 135 (1957).

However, toe interests of toe insured party are not toe sole concern of toe statute. Paragraph F of § 38.2-2206 grants to toe insurance company "the right to file pleadings and take other action allowable by law in the name of toe owner or operator of an uninsured... motor vehicle or in its own name. ”

The final interest sought to be advanced by toe statute is that of toe owner or operator of toe uninsured motor vehicle. Section 38.2-2206(F) also makes clear that, although the insurance company is entitled to participate in toe defense of toe plaintiffs claim, "nothing... shall prevent toe owner or operator of the uninsured motor vehicle from employing counsel of his own choice and taking any action in his own interest in connection with toe proceeding.”

n. The Relationship Between the Insurance Company and the Defendant

In State Farm Mutual Auto. Ins. Co. v. Cuffee, 238 Va. 11 (1994), the Virginia Supreme Court held that “both the uninsured motorist and the insurer may ... employ counsel, file pleadings, participate in discovery, make and argue motions, examine and cross-examine witnesses, engage in argument at trial, admit liability, or pursue appeals. And each is entitled to control his or its own actions but not the actions of the other.” Id. at 14.

The Court has interpreted § 38.2-22G6(F) to require that the insurer be allowed to present its defenses against the plaintiffs claim without regard to the course of action chosen by the defendant. State Farm Mutual Auto. Ins. Co. v. Beng, 249 Va. 165 (1995). This principle of independent action is so strong that the Court has held an insurance company retains the right to defend against the plaintiffs claims even in instances where the defendant has admitted liability for the plaintiffs injuries or has proffered a confession of judgment. See Cuffee and Beng, supra.

m. Uninsured Motorist Cases May Be Properly Understood As Suits Against Multiple Defendants

The treatment afforded uninsured motorist cases by the Virginia Supreme Court demonstrates that such claims are, in essence, suits against multiple defendants. Although in traditional multiple defendant cases, the claims asserted by the plaintiff will be of the same type (i.e., the basis of liability for both defendants will be either tortious or contractual in nature), uninsured motorist cases are hybrid in nature.

The Virginia Supreme Court has held that the insurance company in an uninsured motorist case "is not a tortfeasor. It has no liability to anyone in tort. It does not stand in the shoes of... a tortfeasor.” Virginia Farm Bureau v. Gibson, 236 Va. 433, 441 (1988). The court acknowledged the hybrid nature of uninsured motorist suits when it recognized that an insurance company’s "liability to its uninsured is contractual, even though if is based upon the contingency of a third party's tort liability.” Horne v. Ins. Co., 263 Va. 282, 285 (1962).

Therefore, an uninsured motorist suit may be properly viewed as a suit against multiple defendants with different bases of liability. When viewed in this manner, the Virginia Supreme Court's position regarding the right of independent action held by both the uninsured motorist and toe insurance company is both logical and necessary in addition to being statutorily sound. In actions against joint defendants, whether sounding in contract or in tort, each defendant is entitled to control its own defense.

Additionally, the Virginia Code stipulates that in actions against joint contractual obligors as well as in actions against joint tortfeasors, judgments against different defendants may be entered at different times. Sections 8.01-442, 8.01-443. In applying these provisions, the Court has held that in boto types of cases, judgments may be entered against some defendants and for toe others and that a judgment in fevor of one defendant will not bar a judgment against another defendant McIntyre v. Smyth, 108 Va. 736 (1908); McLaughlin v. Siegel, 166 Va. 374 (1936). These identical treatments given each type of joint suit further legitimizes toe hybridization of toe two in uninsured motorist cases. Because each type of joint suit is afforded toe same treatment, no unfairness, conflict, nr twist of logic results from viewing uninsured motorist cases as a combination of the two.

IV. TheEffectof a Default Judgment in an Uninsured Motorist Case

Virginia Rule 3:17 states that “a defendant who toils to plead to a notice of motion for judgment within toe required time is in default. He waives trial by jury and... toe court shall, on motion of toe plaintiff, enter judgment for toé amount appearing to toe court to be due.”

Although the contractual liability of toe insurance company in an uninsured motorist case is dependent upon the tortious liability of toe uninsured motorist, a default by toe uninsured motorist does not automatically lead to liability for toe insurer. This is so despite toe fact that “judgment is toe event which determines legal entitlement to recovery” against an insurance company in an uninsured motorist suit Midwest Mutual v. Aetna Casualty, 216 Va. 926, 929 (1979). In an uninsured motorist suit, “judgment alone against toe tortfeasor wifl not suffice to fix toe obligation of toe uninsured motorist carrier.” Id. (discussing toe notice requirement under § 38.2-2206). Therefore, although judgment against an uninsured motorist is a necessary precondition to recovery from an insurer, such a judgment does not necessarily result in toe liability of toe insurer.

The Virginia Supreme Court has decided two uninsured motorist cases which involved detoult by toe defendant The first Facchina v. Richardson and Rains, 213 Va. 440 (1972), involved a suit by a plaintiff who had been injured when two other motorists, one of whom was uninsured, struck Ms veMcle after first colliding with each other. The uninsured defendant did not plead or appear for trial, and toe insured defendant toen sought to have toe trial court instruct toe jury as to toe presumptions wMch typically arise as a result of one party’s Mure to appear, i.e. (1) that where a party Ms to appear- and testify as to vitally material facts, the jury is to presume that if he had appeared and testified, his testimony would not have supported his theory of the case; «id (2) that where a party does not produce evidence within his control on the matters in issue, the jury is to presume that if such evidence had been produced, its effect would have been against the party failing to appear.

The Virginia Supreme Court held that the trial court had properly refused to grant die requested instructions because “the presumptions which might normally arise upon the failure of a party to testify or produce evidence controlled by him have no application to a factual situation such as is presented here. This is so because to apply such presumptions would create an undue advantage” for the insured defendant while disadvantaging the insurance carriers, who were “the real parties in interest.” Id. at 443. hi essence, the Court refused to permit file default of an uninsured motorist to have any effect upon the intereste of an insurance company.

The second case is Funkhouser v. Million, 209 Va. 89 (1968), where the plaintiffs estate brought suit against an uninsured motorist and his self-insured employer. The uninsured motorist Med to plead or appear at trial, but the employer filed grounds of defense alleging contributory negligence on die part of the deceased plaintiff. The plaintiff moved for default judgment against the uninsured motorist and, at an ex parte hearing held lator the same day, put mi a witness who testified as to the manner in which die accident had occurred. Because that testimony suggested the plaintiff had been eontributorily negligent, the plaintiffs estate nonsuited its claim against the employer. The trial judge then denied the plaintiffs motion for default judgment because it felt the testimony of the plaintiffs witness had shown conclusively that the deceased was guilty of contributory negligence.

The Virginia Supreme Court reversed, holding that die testimony at issue should have had no bearing upon the plaintiffs motion for default judgment The Court stated that “such testimony should not have been considered because it was irrelevant and immaterial to the sole issue of damages before the Court at the time it ruled upon the motion tor default judgment” Id. at 91. The Court went on to elaborate further, declaring that:

The Mure of [the uninsured motorist] to plead responsively to the plaintiffs motion for judgment was an admission that the plaintiff was entitled to recover some damages from him. Inherent in that admission was die acknowledgment by [die uninsured motorist] of die negligence charged against him as prindmately causing the collision and the concession that the deceased was free of contributory negligence... The only issue before the trial court when it acted upon the plaintiff's motion for default was die amount of damages to be awarded ... and it was the court’s duty, sitting without a jury, to fix such damages. With [die uninsured motorist's] failure to plead given its full effect, any evidence as to the manner in which the accident occurred was irrelevant and immaterial to die situation with which the court was ultimately confronted.

In essence, the Court declared that although testimony given subsequent to the plaintiffs motion for default judgment demonstrated that he was not legally entitled to recovery for his injuries due to his own contributory negligence, die plaintiff was nonetheless entitied to a default judgment against the uninsured motorist

V. Statutory Construction: Law

Where the language of the statute is free from ambiguity, its plain meaning is to be accepted without resort to the rules of interpretation. The plain meaning of a statute should be rejected only if diere is substantial, unambiguous evidence supporting a contrary interpretation. Interpretation of statute rules and regulations is proper only when an ambiguity exists. 17 M.J., Statutes, §§ 34, 41 (1994).

In this case, the legislature was clear in its language. State Farm had the election of filing grounds of defense in its own name or on behalf of the defendant.

VI. Application to the Present Case

Facchina, Cuffee, and Beng, supra, dictate that a default by the uninsured motorist should not be allowed to prejudice the interests of die insurer. The set of presumptions which typically arise in instances of default should not apply under these circumstances, and the insurer should be permitted to defend against die plaintiffs claims at trial, regardless of the fret that the uninsured motorist is legally liable for the plaintiffs injuries. If the plaintiff wins at trial, then the insurer must pay her all sums which she is legally entitled to recover. The insurer then retains the right under § 38.2-2206(0) to seek compensation from the uninsured motorist. If die insurer wins at trial, then it makes no payments to the plaintiff. However, the plaintiff then retains die right to enforce her default judgment against the uninsured motorist. Such an approach protects die rights and interests of the insurer, upholds the rights and reasonable expectations of the plaintiff, and gives full and proper effect to the uninsured motorist’s default

As noted in Travelers v. Lobello, 212 Va. 534, 536 (1972), State Farm will be allowed to state at trial it is present to assist Donald Perry in Ms defense without mentioning insurance and without mentioning that Mr. Perry is in default

Therefore, the Court grants the Motion for Default Judgment against Mr. Perry in fevor of Me plaintiff but will allow State Farm to defend without the motion in default prejudicing it

Novembers, 1997

This letter is in response to Mr. Murray’s request to reconsider a portion of Me Court’s letter opinion of October 6, 1997. In that letter, he requested that the subject of Mr. Perry's default be a proper topic to raise on cross-examination in Me event State Farm opts to put Mr. Perry on Me witness stand.

In State Farm Mutual Auto. Ins. Co. v. Cuffee, 238 Va. 11, 14 (1994), Me Virginia Supreme Court declared that in an uninsured motorist case, both Me uninsured motorist and Me insurance company are entitled to present their own defense to Me claim, but neither is allowed to control Me actions of Me oMer. Further, in State Farm Mutual Auto. Ins. Co. v. Beng, 249 Va. 165 (1995), Me Court held Mat an insurance company must be permitted to present its defenses against Me plaintiff’s claims without regard to the course of action chosen by the defendant

In Mis case, Me course of action chosen by Me defendant was to default Therefore, under Me Cuffee/Beng rule, State Farm must be permitted to present its defenses to Me plaintiffs claims wiMout regard to Me defendant’s default. This cannot mean simply that Me defendant’s default will not foreclose the insurance company’s right to defend against Me plaintiff's claims. If Me Cuffee/Beng line of cases are to be given Meir full effect, Mey must be read to mean that Me issue of a defendant’s default cannot be raised in a trial against an insurance company. Not permitting Me defendant’s default to foreclose State Farm’s case, while permitting Mat default to be entered as evidence at trial would be tantamount to Me law's taking with Me left hand what it has already given with Me sight.

This view is supported by Me Virginia Supreme Court’s holding in Facchina v. Richardson and Rains, 213 Va. 440 (1972), which would appear to control Me handling of this issue. In that case, Me Court refused to let an uninsured motorist’s default have any effect upon the defense mounted by Me insurance company. The Court stated that the trial court was correct in denying the plaintiffs request that the jury instructions reflect the evidentiary presumptions which typically apply in cases of default because doing so would have unfairly disadvantaged die insurance company, whom the Court identified as the real party in interest

Therefore, in light of various decisions of the Virginia Supreme Court, it would be improper for the subject of die defendant’s default to be raised at trial. Logic, consistency, and fundamental fairness require that this be the rule even if die insurance company presents the defendant as a witness.  