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HYLTON, et al.

June 9, 2000

Record No. 992091




June 9, 2000

Record No. 992106





David V. Williams, Judge

Present: All the Justices



In these appeals, we consider whether a judgment in a tort
action may be entered against an insurance company that issued an
automobile liability insurance policy even though the insurance
company was not a defendant in the circuit court proceedings; and
whether a plaintiff’s tort claims against a defendant, who was a
state trooper, are barred by the doctrine of sovereign immunity.


Plaintiff, Clarence E. Hylton, filed his motion for judgment
against Mark Daniel DeHart. A copy of the motion for judgment was
served upon Robert C. Wetzel, registered agent for Nationwide
Mutual Insurance Company (Nationwide). Hylton alleged in his
motion for judgment that he was injured as a result of DeHart’s
negligent operation of a motor vehicle. DeHart, a Virginia State
Trooper, filed a grounds of defense and a plea of sovereign
immunity. DeHart asserted that while he was operating his police
cruiser, he observed an unidentified driver of a truck commit a
traffic violation, that he made a decision to apprehend the
violator, and that he was in the process of determining the
manner in which to proceed when he was involved in the accident
with Hylton. The circuit court considered evidence relating to
the plea of sovereign immunity on the morning of the scheduled
trial and sustained the plea.

After sustaining the plea of sovereign immunity, the circuit
court permitted Hylton to proceed with his lawsuit against
Nationwide, which had issued an automobile liability policy of
insurance to Hylton that was in effect when the accident that was
the subject of Hylton’s motion for judgment occurred. Hylton did
not name Nationwide as a party in his motion for judgment, and
Nationwide did not file any pleadings. DeHart’s counsel informed
the circuit court that he did not represent Nationwide, but was
counsel of record only for DeHart.

Hylton argued that Nationwide was in default, and since
DeHart’s plea of sovereign immunity had been sustained, neither
DeHart nor his counsel had the right to participate in the trial
of the case. The circuit court rejected Hylton’s arguments.
Hylton presented evidence, the jury was instructed, and counsel
for Hylton and DeHart made closing arguments. The jury returned a
verdict in favor of Hylton in the amount of $100,000, and the
circuit court entered a judgment confirming the verdict.

Once Nationwide learned that a judgment had been entered
against it, Nationwide filed a motion requesting that the circuit
court set aside that judgment because, among other reasons,
Nationwide was not a named defendant or party to the tort action.
Hylton opposed Nationwide’s motion, and the circuit court
apparently took no action on the motion. Nationwide appeals the
circuit court’s judgment confirming the jury’s verdict. Hylton
appeals that portion of the judgment sustaining the plea of
sovereign immunity.


Code ? 38.2-2206(F) states:

"If any action is instituted against the owner or
operator of an uninsured or underinsured motor vehicle by any
insured intending to rely on the uninsured or underinsured
coverage provision or endorsement of this policy under which the
insured is making a claim, then the insured shall serve a copy of
the process upon this insurer in the manner prescribed by law, as
though the insurer were a party defendant. The provisions of
? 8.01-288 shall not be applicable to the service of
process required in this subsection. The insurer shall then have
the right to file pleadings and take other action allowable by
law in the name of the owner or operator of the uninsured or
underinsured motor vehicle or in its own name. Notwithstanding
the provisions of subsection A, the immunity from liability for
negligence of the owner or operator of a motor vehicle shall not
be a bar to the insured obtaining a judgment enforceable against
the insurer for the negligence of the immune owner or operator,
and shall not be a defense available to the insurer to the action
brought by the insured, which shall proceed against the named
defendant although any judgment obtained would be enforceable
against the insurer and any other nonimmune defendant. Nothing in
this subsection shall prevent the 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 the

Nationwide argues that a plaintiff who has filed an action
against a tortfeasor may not recover a judgment against an
automobile liability insurance carrier in that tort action.
Continuing, Nationwide asserts that even though Code
? 38.2-2206(F) gives it a right to file pleadings in an
action against an uninsured or underinsured tortfeasor, this
statute does not authorize the entry of a judgment against an
insurance company that issued a policy of insurance that may
satisfy a judgment that may be entered against the owner or
operator of the uninsured or underinsured motor vehicle.
Responding, Hylton asserts that Nationwide voluntarily failed to
take advantage of its right and opportunity to appear conferred
upon it by Code ? 38.2-2206(F) and, therefore, Nationwide
has no right to complain of the judgment entered against it. We
disagree with Hylton.

We have held that a plaintiff who files a tort action for
injuries caused by an owner or operator of an uninsured motor
vehicle cannot recover a judgment in that action against the
liability insurance company that may have a duty to pay the
judgment. We stated in Doe v. Brown, 203 Va. 508,
515, 125 S.E.2d 159, 164 (1962):

"This is not an action arising ex contractu to
recover against the insurance company on its endorsement. The
insurance company is not a named party defendant and judgment
cannot be entered against it in this action. This is an action ex
, since the cause of action arises out of a tort, and
the only issues presented are the establishment of legal
liability on the unknown uninsured motorist, John Doe, and the
fixing of damages, if any."

See also Rodgers v. Danko, 204 Va.
140, 143, 129 S.E.2d 828, 830 (1963). Rather, the question
whether an automobile insurance company has a legal obligation to
a plaintiff "may be decided in an action ex contractu
brought on the policy by the interested judgment plaintiff, or in
a declaratory judgment proceeding to determine the rights of the
parties." Id.

Even though Code ? 38.2-2206(F) gave Nationwide the
right to file pleadings and take any other action allowable by
law in the name of the owner or operator of the uninsured or
underinsured motor vehicle or in its own name, this statute does
not permit Hylton to obtain a judgment in this tort proceeding
against Nationwide. And, the fact that Nationwide’s registered
agent received a copy of the motion for judgment does not permit
the circuit court to enter a judgment against Nationwide.
Accordingly, we hold that the circuit court erred by entering a
judgment against Nationwide in this proceeding.



DeHart adduced the following evidence at the pretrial hearing
on his plea of sovereign immunity. DeHart was employed as a
Virginia State Trooper on August 2, 1996. In that capacity, he
was required to patrol Henry County in his police cruiser,
enforce criminal laws, respond to requests for assistance, issue
citations for traffic violations, obtain and execute search
warrants, and perform special assignments.

DeHart was operating his police cruiser on August 2, 1996,
while on duty. He was traveling south on Route 220 near the
intersection of Route 220 and Commonwealth Boulevard in Henry
County. The intersection is controlled by a traffic light. When
the traffic light was red, DeHart stopped his vehicle behind a
truck, which was operated by Hylton. When the traffic light
turned green, Hylton drove his truck through the intersection,
three or four car lengths in front of DeHart’s cruiser.

As DeHart slowly proceeded through the intersection, he saw an
unidentified individual operating a pickup truck. The
unidentified driver of the pickup truck proceeded through a red
light and made a "wide right turn" onto Route 220.
DeHart testified that he observed the unidentified operator of
the pickup truck drive onto Route 220 "and that lane would
have had a red light. [The unidentified driver] came out and did
not slow down very much, came into the right lane and made a wide

"At that point I was looking in my rear view mirror to
get over in the right lane. I was going to stop that vehicle, and
at that point I heard tires squeal in front of me. I saw the
vehicle stop abruptly in the left lane and I proceeded to try to
stop, but did not have enough distance and impacted with Mr.

Sergeant C. William Murphy, DeHart’s supervisor, testified
that DeHart’s duties were to enforce traffic and criminal laws in
Henry County as well as elsewhere in the Commonwealth of
Virginia. DeHart testified that he exercises discretion and
judgment when deciding whether to pursue traffic violators.


Hylton argues that the circuit court erred by sustaining
DeHart’s plea of sovereign immunity because he was merely
operating his motor vehicle and that such act does not
"clothe [him] with the defense of sovereign immunity."
We disagree.

In Colby v. Boyden, 241 Va. 125, 128-29, 400
S.E.2d 184, 186-87 (1991), we discussed the test that we apply
when determining whether a governmental employee is entitled to
the protection of sovereign immunity. We held that we must
consider "(1) the nature of the function the employee
performs; (2) the extent of the government’s interest and
involvement in the function; (3) the degree of control and
direction exercised over the employee by the government; and (4)
whether the act in question involved the exercise of discretion
and judgment." Id. at 129, 400 S.E.2d at 186-87. See
also Gargiulo v. Ohar, 239 Va. 209, 212, 387
S.E.2d 787, 789 (1990); Lentz v. Morris, 236 Va.
78, 82, 372 S.E.2d 608, 610 (1988); Messina v. Burden,
228 Va. 301, 313, 321 S.E.2d 657, 663 (1984); James v. Jane,
221 Va. 43, 53, 282 S.E.2d 864, 869 (1980).

In Colby, we applied this test to determine whether a
police officer, who was involved in an accident while in pursuit
of a traffic violator, was entitled to the bar of sovereign
immunity to defeat the tort claims asserted by a plaintiff who
was injured in the accident. We stated:

"Enforcement of traffic laws is not only a primary
governmental function of a municipality, but one in which the
municipality is inextricably involved through financial,
personnel, and policy initiatives. A municipality enjoys
sovereign immunity for acts undertaken in furtherance of this
function. [The police officer] was involved in the performance of
this function for the City of Virginia Beach at the time of the
accident, thereby satisfying the first two elements of the test.

 . . . .

"Unlike the driver in routine traffic, the [police] officer must make difficult judgments about the best means of
effectuating the governmental purpose by embracing special risks
in an emergency situation. Such situations involve necessarily
discretionary, split-second decisions balancing grave personal
risks, public safety concerns, and the need to achieve the
governmental objective. The exercise of discretion is involved
even in the initial decision to undertake the
pursuit . . . ."

Colby, 241 Va. at 129-30, 400 S.E.2d at 187. We
concluded that the circuit court properly ruled that the police
officer in Colby was entitled to the bar of sovereign

We hold that DeHart is entitled to the bar of sovereign
immunity. DeHart was involved in the enforcement of traffic laws,
which is a governmental function. And, the circuit court
implicitly made a finding of fact that when DeHart’s police
cruiser collided with Hylton’s vehicle, DeHart had made a
decision to pursue the unidentified motor vehicle operator who
had committed a traffic infraction, and DeHart had begun to
undertake the pursuit.

Contrary to Hylton’s assertions, DeHart was not involved
merely in the simple operation of an automobile when DeHart’s
vehicle collided with the rear of Hylton’s vehicle. In Heider
v. Clemons, 241 Va. 143, 145, 400 S.E.2d 190, 191 (1991),
we held that a deputy sheriff, who was involved in an accident
while driving his car, was not entitled to the bar of sovereign
immunity. The deputy sheriff had served process at a residence in
Fairfax, returned to his automobile, drove onto a street, and
collided with a motorcycle. The driver of the motorcycle filed a
negligence action against the deputy sheriff, who pled the
affirmative defense of sovereign immunity. Id. at 144, 400
S.E.2d at 190.

Rejecting the deputy sheriff’s assertion of the defense of
sovereign immunity in Heider, we stated:

"While every person driving a car must make myriad
decisions, in ordinary driving situations the duty of due care is
a ministerial obligation. The defense of sovereign immunity
applies only to acts of judgment and discretion which are
necessary to the performance of the governmental function itself.
In some instances, the operation of an automobile may fall into
this category, such as the discretionary judgment involved in
vehicular pursuit by a law enforcement officer. See, e.g.,
Colby v. Boyden, 241 Va. 125, 400 S.E.2d 184
(1991) . . . . However, under the
circumstances of this case, the simple operation of an automobile
did not involve special risks arising from the governmental
activity, or the exercise of judgment or discretion about the
proper means of effectuating the governmental purpose of the
driver’s employer."

Id. at 145, 400 S.E.2d at 191. See also Wynn v. Gandy,
170 Va. 590, 197 S.E. 527 (1938) (defense of sovereign immunity
not available to school bus driver whose duty of driving a bus to
transport children did not involve judgmental discretion, but was
purely ministerial). In contrast to the deputy sheriff in Heider,
DeHart was not merely engaged in routine driving activities.
Rather, at the time of the accident that is the subject of this
litigation, DeHart had made a decision to apprehend a traffic
violator, and DeHart was required to exercise discretion and
judgment in executing that action.


Finding no merit in Hylton’s remaining arguments, we will
affirm the judgment of the circuit court in Hylton’s action
against DeHart. Also, we will reverse the circuit court’s
judgment in Hylton’s action against Nationwide and enter final
judgment here in favor of Nationwide.

Record No. 992091 — Reversed and final

Record No. 992106 — Affirmed.