No. 26437-Thelma J. Dalton v. John Doe
McGraw, J., dissenting:
I reject the majority's conclusion
that Hamric v. Doe, 201 W. Va. 615, 499 S.E.2d 619 (1997), had the
clear effect of . . . overrul[ing] established law,and
must therefore be applied only prospectively. While it is true that the Hamric
Court suggested in a footnote that it was overruling prior case law on the subject,See
footnote 1 1 Hamric in fact did not work any significant
change in West Virginia law. Previous cases, most notably State Farm Mut.
Auto. Ins. Co. v. Norman, 191 W. Va. 498, 446 S.E.2d 720 (1994), clearly
foreshadowed the result reached in Hamric. Indeed, Hamric was
the very first case in which this Court was required to address the ultimate
reach of the physical contact requirement contained in W. Va.
Code § 33-6-31(e)(iii). Thus, the majority's suggestion that Hamric
marked a departure from previous settled law is simply inaccurate. I would permit
Hamric to be applied retroactively, as is the Court's custom in all cases
of first impression dealing with issues of statutory interpretation.
I likewise disagree with the
majority's conclusion that so-called John Doe actions must be governed
by the general two-year statute of limitation set forth in W. Va. Code
§ 55-2-12, rather than the ten-year limitation period for contract
actions provided by W. Va. Code § 55-2-6. The majority attempts
to make a distinction between actions brought directly against an insurer, and
cases formally commenced against an unknown defendant in order to collect uninsured
or underinsured motorist coverage. This is a hollow distinction. In Plumley
v. May, 189 W. Va. 734, 434 S.E.2d 406 (1993), the Court made clear
that an action brought against an insurer in pursuit of uninsured or underinsured
motorist coverage is an action in contract rather than tort. I simply fail to
see any reason for treating a John Doe action any differently, where the single
object of such proceedings is to recover from the insurer. The majority in this
case has plainly exalted form over substance.
For the foregoing reasons, I respectfully dissent. I am authorized to state that Justice Starcher joins in this dissent.