Plymale v. Adkins
Annotate this Case
January 1993 Term
_____________
No. 21410
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GLORIA PLYMALE,
Plaintiff Below, Appellant
v.
OTTIE ADKINS, SHERIFF OF CABELL COUNTY,
AS ADMINISTRATOR OF THE ESTATE OF
THOMAS WITHERSPOON, DECEASED,
Defendant Below, Appellee
___________________________________________________________
Circuit Court of Cabell County
Honorable Alfred E. Ferguson, Judge
Civil Action No. 88-C-641
CERTIFIED QUESTIONS ANSWERED
___________________________________________________________
Submitted: January 20, 1993
Filed: March 25, 1993
R. Lee Booten II, Esq.
David R. Tyson, Esq.
Huntington, West Virginia
Attorneys for the Appellant
William L. Mundy, Esq.
Renatha S. Garner, Esq.
Mundy & Adkins
Huntington, West Virginia
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "Where a plaintiff seeks to change a party defendant
by a motion to amend a complaint under Rule 15(c) of the West
Virginia Rules of Civil Procedure, the amendment will relate back
to the filing of the original complaint only if the proposed new
party defendant, prior to the running of the statute of
limitations, received such notice of the institution of the
original action that he will not be prejudiced in maintaining his
defense on the merits and that he knew or should have known that,
but for a mistake concerning the identity of the proper party, the
action would have been brought against him." Syllabus, Maxwell v.
Eastern Associated Coal Corp., Inc., 183 W. Va. 70, 394 S.E.2d 54
(1990).
2. "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 (1986).
Per Curiam:
These two certified questions from the Circuit Court of
Cabell County concern a complaint that failed to name an unknown
"hit and run" driver as a defendant. Gloria Plymale, a guest
passenger in an automobile that was struck by a hit and run driver,
seeks to amend her complaint to assert an alternative claim against
an unknown person. Ms. Plymale's complaint alleges that Thomas
Witherspoon was the hit and run driver. After the circuit court
denied Ms. Plymale's motions to amend her complaint and to instruct
the jury on her alternative theory against an unknown driver, Ms.
Plymale requested the certified questions so that the issues could
be presented to this Court. In this case because the insurance
company that would represent the unknown driver is already
representing Mr. Witherspoon, an uninsured driver, and has made no
showing of prejudice, we find that Ms. Plymale should be allowed to
amend her complaint and proceed on her alternative theory of
recovery against an unknown driver.
On April 18, 1986, Ms. Plymale was injured when the car
in which she was a passenger was struck by a hit and run driver.
The only information concerning the identity of the hit and run
driver came from one witness who identified Mr. Witherspoon as the
hit and run driver. On April 15, 1988, Ms. Plymale filed a
complaint naming as defendants Joseph S. Adkins, the driver of the
car in which she was riding, and Mr. Witherspoon.See footnote 1 Count two of
Ms. Plymale's complaint sought, in the alternative, uninsured
motorist coverage under the Mr. Adkins' insurance policy and
directed that a copy of the complaint be served on Mr. Adkins'
insurance carrier, Aetna Life and Casualty Insurance Company. A
copy of the summons and complaint were served on Aetna and pursuant
to W. Va. Code 33-6-31(d) [1988], Aetna appeared in the name of Mr.
Witherspoon. The defense maintains that Mr. Witherspoon was not
the "hit and run" driver and therefore, the defense did not provide
Ms. Plymale with the insurance status of Mr. Witherspoon until two
days before the scheduled trial.
After discovery was concluded and shortly before trial,
Ms. Plymale sought, as an alternative theory, to recover under the
uninsured coverage for an unknown driver pursuant to W. Va. Code
33-6-31(e)[1988]. Ms. Plymale's request to amend her complaint was
made after the statute of limitations for her claim had expired.
If Ms. Plymale is allowed to proceed against an unknown driver, the
unknown driver, as an uninsured person, would be represented by
Aetna, the company already representing Mr. Witherspoon. Noting
that the statute of limitations had expired for this claim, the
circuit court denied Ms. Plymale's request. Ms. Plymale then
requested that the issue be presented to this Court by way of
certified questions.
I
The first certified question concerns whether Ms.
Plymale's complaint, which fails to name "John Doe," as a
defendant, is sufficient to permit recovery under W. Va. Code 33-6-31(e) [1988].See footnote 2
W. Va. Code 33-6-31(e)(iii)[1988] establishes procedures
to be followed when an injury is caused by an unknown motorist and
recovery is sought under an uninsured motorist provision. W. Va.
Code 33-6-31 (e)(iii) [1988] states:
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 of
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. If the owner or operator of any
motor vehicle causing bodily injury or
property damage be unknown, an action may be
instituted against the unknown defendant as
"John Doe," in the county in which the
accident took place or in any other county in
which such action would be proper under the
provisions of article one [§ 56-1-1], chapter
fifty-six of this code; service of process may
be made by delivery of a copy of the complaint
and summons 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.
In Lusk v. Doe, 175 W. Va. 775, 778, 338 S.E.2d 375, 378 (1985) we
said:
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.
Ms. Plymale argues that the use of "may be" in W. Va.
Code 33-6-31(e)(iii) [1988] within the context of "an action may be
instituted against the unknown defendant as 'John Doe'" shows that
the naming of John Doe as a defendant is not required. However,
subsection (iii) also provides that "service upon the insurance
company issuing the policy shall be made as prescribed by law as
though such insurance company were a party defendant" and "[t]he
insurance company shall have the right to file pleadings and take
other action allowable by law in the name of John Doe." See Ara v.
Erie Ins. Co., 182 W. Va. 266, 269, 387 S.E.2d 320, 323 (1989)
(holding the use of "shall" in W. Va. Code 33-6-31(d) [1988]
indicates a mandatory connotation); Syllabus Point 2, Terry v.
Sencindiver, 153 W. Va. 651, 171 S.E.2d 480 (1969)(holding that
absent a showing of a contrary intent, the word "shall . . . should
be afforded a mandatory connotation"). When W. Va. Code 33-6-31(c)(iii) [1988] is read as a whole, we find that the mechanism
triggering the insurance company's ability to act as a party
defendant is the naming of John Doe as a defendant and that the
phrase "may be" relates to the filing of a suit and not its
procedures.
Based on the provisions of W. Va. Code 33-6-31(e)(iii)[1988], we find that a suit seeking to establish
liability of an unknown motorist to recovery under the uninsured
motorist provisions should name "John Doe" as a defendant.
Therefore, we agree with the circuit court's negative answer to the
first certified question and find that Ms. Plymale's present
complaint that fails to name John Doe as a defendant is
insufficient to permit recovery under the uninsured motorist
provision of Mr. Adkins' policy.
II
The second certified question concerns whether Mrs.
Plymale can amend her complaint to join John Doe as a defendant
pursuant to W. Va. Code 33-6-31(e)(iii) [1988] after the running of
the statute of limitations on her personal injury claim.See footnote 3
Although W. Va. Code 33-6-31(e)(iii) [1988] outlines
the proper procedures to proceed against an unknown motorist, Rule
15 of the W. Va. Rules of Civil Procedure [1990] governs a motion
to amend a complaint seeking recovery under W. Va. Code § 33-6-31(e) [1988].See footnote 4 Because the statute of limitations expired, Ms.
Plymale seeks to have her amendment relate back to the filing of
her original complaint. Rule 15(c) of W. Va. Rules of Civil
Procedure [1978], governs when amendments relate back. Rule 15(c)
provides:
Whenever the claim or defense asserted in
the amended pleading arose out of the conduct,
transaction, or occurrence set forth or
attempted to be set forth in the original
pleading, the amendment relates back to the
date of the original pleading. An amendment
changing the party against whom a claim is
asserted relates back if the foregoing
provision is satisfied and, within the period
provided by law for commencing the action
against him, the party to be brought in by
amendment (1) has received such notice of the
institution of the action that he will not be
prejudiced in maintaining his defense on the
merits, and (2) knew or should have known
that, but for a mistake concerning the
identity of the proper party, the action would
have been brought against him.
In the present case, Aetna alleges that Rule 15(c) bars Ms. Plymale's amendment because the notice Aetna received was insufficient and prejudiced its ability to maintain a defense. In Maxwell v. Eastern Association Coal Corporation, Inc., 183 W. Va. 70, 72-73, 394 S.E.2d 54, 56-57 (1990)(discussing when a plaintiff can change a party defendant by a motion to amend a complaint under Rule 15(c)), we noted that the Supreme Court in Schiavone v. Fortune, 477 U.S. 21 (1986)(discussing the federal rule, which in 1990 was in all relevant respects identical to the language of West Virginia's Rule 15(c)) held that "an amendment adding a party would not relate back unless the added party had notice of the bringing of the action within the limitations period."See footnote 5 Maxwell, supra, at 73, 394 S.E.2d at 57. See 6A C. Wright, A. Miller & M. Kane,
Federal Practice and Procedure: Civil § 1498 (1990). In Syllabus,
Maxwell, we said:
Where a plaintiff seeks to change a party
defendant by a motion to amend a complaint
under Rule 15(c) of the West Virginia Rules of
Civil Procedure, the amendment will relate
back to the filing of the original complaint
only if the proposed new party defendant,
prior to the running of the statute of
limitations, received such notice of the
institution of the original action that he
will not be prejudiced in maintaining his
defense on the merits and that he knew or
should have known that, but for a mistake
concerning the identity of the proper party,
the action would have been brought against
him.
See also Syllabus Point 3, Rosier v. Garron, Inc., 156 W. Va. 861,
199 S.E.2d 50 (1973)(holding that "motions to amend should always
be granted under Rule 15 when: (1) the amendment permits the
presentation of the merits of the action; (2) the adverse party is
not prejudiced by the sudden assertion of the subject of the
amendment; and (3) the adverse party can be given ample opportunity
to meet the issue").
In the present case, although the added defendant is an
unknown motorist, Aetna, by virtue of uninsured coverage, is the
insurer of unknown motorists. Because Aetna is involved by virtue
of Mr. Witherspoon's uninsured status, Aetna received a copy of the
summons and complaint and had been active in Mr. Witherspoon's
defense.See footnote 6 Thus, Aetna received notice of the institution of the
action "within the period provided by law for commencing the action
against him. . . ." Rule 15(c), W. Va. Rules of Civil Procedure
[1990].
Aetna maintains that it would be prejudiced in defending
an unknown motorist because although notice under W. Va. Code 33-6-31(d) [1988] was provided, that notice was insufficient to allow
Aetna "to investigate the identity of that [the unknown] driver or
learn his whereabouts." Aetna argues that "[i]t was left with no
opportunity. . .to present any defense to an action against John
Doe." In Syllabus Point 2, State Auto Mut. Ins. Co. v. Youler, 183
W. Va. 556, 396 S.E.2d 737 (1990), we said that after the insured
showed the reason for the delay, "the insurer must then demonstrate
that it was prejudiced by the insured's failure to give notice
sooner."
We are also mindful that a primary "purpose of mandatory
uninsured motorist coverage is to protect innocent victims from the
hardships caused by negligent, financially irresponsible drivers."
Lusk, supra, at 779, 338 S.E.2d at 380. In Syllabus Point 7,
Perkins v. Doe, 177 W. Va. 84, 350 S.E.2d 711 (1986), we said:
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.
In the present case although Aetna alleges prejudice,
Aetna failed to demonstrated how it would be prejudiced.See footnote 7 The
record shows that the identity of the hit and run driver was a
major issue in Mr. Witherspoon's defense and Aetna had the
opportunity to investigate the identity of the hit and run driver
and to learn his or her whereabouts. In effect, the record shows
that Aetna had notice of the claim before the running of the
statute of limitations, was not prejudiced because it knew of the
identity issue, and knew or should have known that, but for a
mistake concerning the identity of the proper party, the action
would have been brought against it.
Although a motion for leave to amend a complaint is
addressed to the sound discretion of the trial court (Nellas v.
Loucas, 156 W. Va. 77, 191 S.E.2d 160 (1972); Perdue, supra n. 4),
because this motion to add a party defendant meets the requirements
of Rule 15(c), W. V. Rules of Civil Procedure, we find that the
circuit court's negative answer to the second certified question
was incorrect and that Mrs. Plymale's motion to amend her complaint
should be granted.
Having answered the certified questions, we dismiss this
case from the docket of this Court and remand the case to the
Circuit Court of Cabell County for further proceedings consistent
with this opinion.
Certified questions answered;
case remanded.
Footnote: 1Because no allegations of negligence were made against Mr.
Adkins, the circuit court dismissed him with prejudice. Mr.
Witherspoon is deceased and was replaced in this action by his
estate's administrator, Ottie Adkins, Sheriff of Cabell County.
Footnote: 2 The first certified question is:
Is a complaint seeking damages for personal
injuries resulting from a hit-and-run motor
vehicle accident, which names a known
individual as the defendant driver allegedly
liable for such injuries, sufficient for the
plaintiff to pursue a claim for such damages,
and to sustain a verdict, if any, against an
unknown hit-and-run motorist pursuant to the
provisions of West Virginia Code Section 33-6-31(e)(iii), even though the complaint does not
name John Doe as a defendant?
Footnote: 3The second certified question is:
Is it proper to grant a plaintiff leave to
amend her complaint to join John Doe as a
defendant, pursuant to West Virginia Code
Section 33-6-31(e)(iii), in an action for
personal injuries arising from a hit-and-run
motor vehicle accident after the statute of
limitations on the personal injury claim has
expired, when the original complaint names a
known individual as the defendant driver
allegedly liable for such injuries?
Footnote: 4Aetna argues that both the notice and procedural requirements
of W. Va. Code 33-6-31(e) [1988], are mandatory and that Ms.
Plymale's failure to follow the procedures precludes any recovery.
The technical approach to pleadings urged by Aetna is contrary to
our long-standing liberality in permitting amendments of pleadings.
Rule 15(a) provides that "leave [to amend pleadings] shall be
freely given when justice so requires." See also Perdue v. S. J.
Groves & Sons Co., 152 W. Va. 222, 161 S.E.2d 260 (1968)
(recognizing liberality to amend pleadings existed prior to the
adoption of the W. Va. Rules of Civil Procedure).
Footnote: 5Rule 15(c) of the Federal Rules of Civil Procedure was
amended in 1991 to make it clear that service could take place
outside the period of limitations, so long as it was accomplished
within the time provided by Rule 4. Our Rule 15(c) has not been
amended.
Footnote: 6Aetna's defense of Mr. Witherspoon, an uninsured motorist was
pursuant to W. Va. Code 33-6-31(d) [1988], which provides:
Any insured intending to rely on the
coverage required by subsection (b) of this
section shall, if any action be instituted
against the owner or operator of an uninsured
or underinsured motor vehicle, cause a copy of
the summons and a copy of the complaint to be
served upon the insurance company issuing the
policy, in the manner prescribed by law, as
though such insurance company were a named
party defendant; such company shall thereafter
have the right to file pleadings and to take
other action allowable by law in the name of
the owner, or operator, or both, of the
uninsured or underinsured motor vehicle or in
its own name.
Nothing in this subsection shall prevent such owner or operator from employing counsel of his own choice and taking any action in his own interest in connection with such proceeding. Footnote: 7Mrs. Plymale sought to amend her complaint shortly before trial because of defense counsel's objection to Mrs. Plymale's use at trial of the deposition of the witness who identified Mr. Witherspoon as the hit and run driver. The defense objected to the deposition's use because they were not present during the "crucial portions" of the deposition that was conducted out of state. Defense lawyers were late because their flight was delayed.
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