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O'BRIEN v. GOVERNMENT EMPLES. INS. CO.

March 9, 1966

Robert P. O'BRIEN
v.
GOVERNMENT EMPLOYEES INSURANCE COMPANY



The opinion of the court was delivered by: DAVIS

 The plaintiff has instituted this action for damages against the defendant insurance company pursuant to Virginia's Uninsured Motorist Statute, Va.Stat.Ann. § 38.1-381. Jurisdiction is based solely on diversity of citizenship.

 On June 19, 1964, the plaintiff was injured in San Juan, Puerto Rico, in an automobile accident which he alleges was the result of the negligence of one Thomas Colon-Fantauzzi, an uninsured motorist. At the time of the accident, the plaintiff was insured under a Family Automobile Policy that the defendant had issued to him in Virginia. The policy provided that the insurance company would pay the insured an amount up to $15,000 which he "shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile."

 The defendant has presently moved for judgment on the pleadings on the ground that the plaintiff has failed to establish the legal liability of the uninsured motorist before suing the insurance company on the policy. This question, one of first impression, involves the interpretation of the Virginia "Uninsured Motorist" Statute § 38.1-381, the pertinent provisions of which are set forth in the margin. *fn1"

 The legislative enactment also provides for an action against an unknown motorist who has caused the accident. Section 38.1-381(e) of the statute reads as follows:

 
(e) If the owner or operator of any vehicle causing injury or damages be unknown, an action may be instituted against the unknown defendant as "John Doe" and service of process may be made by delivery of a copy of the motion for judgment or other pleadings to the clerk of the court in which the action is brought and service upon the insurance company issuing the policy shall be made as prescribed by law as though such insurance company were a party defendant. The insurance company shall have the right to file pleadings and take other action allowable by law in the name of John Doe.

 The plaintiff contends that under this statute he may sue the insurance company directly without first establishing the liability of the uninsured motorist in a separate suit. The plaintiff has been unable to cite any cases where a plaintiff has done so, and indeed the court's research has uncovered none. However, the plaintiff argues that the purpose of the statute, which is to protect the insured and not the tortfeasor, would be frustrated and would impose on him a great burden if he were compelled to travel to Puerto Rico to institute an action against the motorist when the maximum recovery is $15,000. See Drewry v. State Farm Mutual Automobile Insurance Co., 204 Va. 231, 129 S.E.2d 681 (1963); Horne v. Superior Life Insurance Co., 203 Va. 282, 123 S.E.2d 401 (1962).

 He also cites a number of Virginia cases that have liberally construed the statute in favor of the insured. State Farm Mutual Automobile Insurance Co. v. Brower, 204 Va. 887, 134 S.E.2d 277 (1964); Hodgson v. Doe, 203 Va. 938, 128 S.E.2d 444 (1962); Mangus v. Doe, 203 Va. 518, 125 S.E.2d 166 (1962); Matthews v. Allstate Insurance Co., 194 F. Supp. 459 (E.D.Va.1961). He contends that we should follow this attitude and permit him to sue in this district to avoid the burden that would otherwise ensue.

 While these cases do indicate a liberal viewpoint toward the insured, we must allude to Creteau v. Phoenix Assurance Co., 202 Va. 641, 119 S.E.2d 336 (1961) where the Virginia Supreme Court of Appeals was not so favorable. There the court took a very strict and formalistic view of the kind of notice that the plaintiff must give to the insurance company in an action against an uninsured motorist.

 In any event, this court cannot rely solely on vague notions of liberality of the Virginia courts toward the insured even if we were entirely convinced that this attitude existed. Instead we must turn to the legislation itself.

 The statute nowhere in specific terms requires the plaintiff to bring his action against the uninsured motorist or prohibits him from bringing it against his insurance company. The Virginia Code Ann. § 38.1-381(b) states only:

 
"Nor shall any such policy or contract * * * be so issued or delivered unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages from the ...

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