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RIVERA v. WITT


RIVERA v. WITT


February 26, 1999
Record No. 980712

SHERNETTE L. RIVERA

v.

JOHNNY LEE WITT

FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
J. Samuel Johnston, Judge
Present: All the Justices
OPINION BY JUSTICE ELIZABETH B. LACY


In this appeal involving the uninsured motorist
statute, we consider whether John Doe and an insured motorist
later identified as John Doe are considered the same entity for
purposes of the statute of limitations.

Shernette L. Rivera (Rivera) filed a motion for
judgment on August 13, 1993 against John Doe, an unknown driver,
for injuries she sustained in an automobile accident on January
23, 1992. Pursuant to Code Sect. 38.2-2206 (the uninsured
motorist statute), Rivera served a copy of the motion for
judgment on Colonial Insurance Company of California (Colonial),
her uninsured motorist insurance carrier. Rivera subsequently
learned that the John Doe motorist was "in all
probability" Johnny Lee Witt, and she filed a motion to join
Witt as a defendant on January 19, 1996. The trial court entered
an order granting Rivera’s motion. The court also non-suited
Rivera’s action against John Doe on the agreement of counsel for
Rivera and Colonial.

Witt then filed a plea in bar asserting that
Rivera’s cause of action against him was barred because it was
filed beyond the two-year limitations period established by Code
Sect. 8.01-243. Rivera responded that under this Court’s
holding in Truman v. Spivey, 225 Va. 274, 302 S.E.2d 517
(1983), her amended motion for judgment was not time barred.
Following a hearing, the trial court determined that Truman
was not applicable and entered an order granting Witt’s plea and
dismissing Rivera’s motion for judgment with prejudice. Rivera
appealed.

Both parties acknowledge that the issue
presented in this case was not resolved in Truman. The
Court in Truman held that, for statute of limitations
purposes, an unidentified John Doe motorist and the
later-identified uninsured motorist are considered the same
entity under Code Sect. 38.1-381, the predecessor of Code
Sect. 38.2-2206. 225 Va. at 279, 302 S.E.2d at 519. Because
they were the same entity, the Court concluded, an amended motion
for judgment adding the identified uninsured motorist as a
defendant was not barred by the limitations period, even though
the amendment was filed after the expiration of that period. The
Court specifically declined to determine whether it would reach
the same result if the subsequently identified motorist were an
insured motorist. Id. at 281, 302 S.E.2d at 520.

Rivera argues we should apply the same analysis
the Court employed in Truman to the facts of this case.
She contends that by applying that analysis we would reach the
conclusion that John Doe and the later-identified motorist, Witt,
should be considered the same entity for statute of limitations
purposes. We disagree.

Rivera’s conclusion is premised on her
contention that the Court’s analysis in Truman was
concerned primarily with considerations of prejudice. She argues
that in resolving the limitations issue, the Court in Truman
determined that John Doe and the later-identified uninsured
motorist, Charles Spivey, should be considered the same entity
because doing so would not offend the purposes of the statute of
limitations and because the actions of the plaintiff’s uninsured
motorist insurance carrier in defending the John Doe
"afforded a substantial measure of protection" to
Spivey. Id. at 280, 302 S.E.2d at 520. In this case, she
asserts, Witt likewise has suffered no prejudice and Colonial’s
actions in defending John Doe afforded Witt and his insurer a
substantial measure of protection.

However, the analysis in Truman was not
as limited as Rivera characterizes it. Indeed, such an analysis,
as described by Rivera, would effectively create an exception to
the statute of limitations whenever a plaintiff could show that a
defendant is not prejudiced by permitting suit against him after
the limitations period has expired. This would be contrary to the
established principle that statutes of limitations are strictly
enforced and must be applied unless the General Assembly has
clearly created an exception to their application. Arrington
v. Peoples Sec. Life Ins. Co.
, 250 Va. 52, 55, 458 S.E.2d
289, 290-91 (1995); see, e.g., Code
Sect. 8.01-6 (providing that addition of new defendant
relates back to date of original filing under certain
conditions).
[1] While prejudice may be a factor to be considered in
applying these statutory exceptions, a court is not free to
generally engage in considerations of prejudice to determine
whether a statute of limitations should be applied.

The Court’s analysis in Truman did not
focus on prejudice, but on whether the uninsured motorist statute
treated the unidentified uninsured motorist, Doe, and the
subsequently identified uninsured motorist, Spivey, as the same
entity. The statute, as the Court observed, treated Doe and
Spivey as the same entity in some respects and as different
entities in other respects. The Court concluded, however, that on
the facts of that case, Spivey and Doe should be treated as the
same entity for statute of limitations purposes on two primary
grounds: first, the uninsured motorist statute imposed liability
on the plaintiff’s uninsured motorist insurance carrier for any
judgment against an uninsured motorist, regardless of whether the
identity of the motorist was known or unknown; and second, the
statute afforded the uninsured motorist insurance carrier timely
notice of and the opportunity to defend against the claim in
which liability was sought to be imposed. Truman, 225 Va.
at 279, 302 S.E.2d at 519-20. The Court in Truman then
reviewed the purposes of the statute of limitations to insure
that treating John Doe and Spivey as the same entities in that
case did not offend the traditional goals of such statutes. Id.
It was in this context that considerations of prejudice were
discussed.

If we apply the Truman analysis to
resolve the limitations questions in this case, our initial
inquiry is whether the uninsured motorist statute requires or
supports treating John Doe and Witt as the same entity for
statute of limitations purposes. The crucial distinction in our
consideration of the statute in this case is that, unlike the
later-identified motorist in Truman, Witt is an insured
motorist.
[2]

The uninsured motorist statute addresses the
liability of a plaintiff’s uninsured motorist insurance carrier
when an uninsured or underinsured motorist as defined in the
statute is the alleged tortfeasor. It does not address personal
injury actions against an insured motorist and, for that reason,
there is nothing in the statute that imposes liability on or
provides procedural protections for the insured motorist or his
automobile liability insurance carrier. An insured motorist may
be affected by the provisions in subsection G of the statute
allowing suit to be filed against a subsequently identified John
Doe motorist during or after the conclusion of the John Doe
personal injury action; however, the statute neither tolls nor
extends the limitations period for bringing subsequent suits. We
conclude that there is nothing in the uninsured motorist statute
which suggests that, under the facts of this case, Doe and Witt
should be treated as the same entity; therefore, the statute of
limitations applies to each of them individually.

Accordingly, we will affirm the judgment of the
trial court dismissing Rivera’s amended motion for judgment
against Witt because it was filed beyond the limitations period.

Affirmed.

 

 

FOOTNOTES:

[1] Rivera did not claim that she was
entitled to relief under Code Sect. 8.01-6.

[2] Rivera asserts that Witt’s insurer is
defending the case under a reservation of rights and that it may
eventually deny Witt coverage, thereby making Witt an uninsured
motorist under the definitions contained in Code
Sect. 38.2-2206(B). We, however, must consider this case in
the factual posture presented and, therefore, do not address the
speculative factual circumstance suggested by Rivera. Rivera does
not assert Witt is an underinsured motorist.

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