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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2005 Term
Plaintiff Below, Appellant
KAREN HEASTER, as Administratrix
for the Estate of David Heaster
Defendants Below, Appellees
Appeal from the Circuit Court of Harrison County
Honorable John Lewis Marks, Judge
Civil Action No. 02-C-318-1
Submitted: March 23, 2005
Filed: June 21, 2005
JUSTICE BENJAMIN delivered the opinion of the Court.
CHIEF JUSTICE ALBRIGHT dissents and reserves the right to file a dissenting
| Roger D. Curry
Amy J. Swisher
Curry & Swisher, PLLC
Fairmont, West Virginia
Attorney for Appellant
Thomas G. Steele
Steele Law Offices
Clarksburg, West Virginia
Attorney for Appellee
Allstate Insurance Company
JUSTICE STARCHER concurs, in part, dissents, in part, and reverses the right
to file a separate opinion.
SYLLABUS BY THE COURT
review of a circuit court's order granting a motion to dismiss a complaint
is de novo." Syllabus Point 2, State ex rel. McGraw v. Scott Runyan
Pontiac-Buick, 194 W. Va. 770, 461 S.E.2d 516 (1995).
to West Virginia's omnibus statute, W. Va. Code § 33-6-31(a) (1998),
a person must have the permission, express or implied, of the named insured or
the insured's spouse to operate or move a motor vehicle before coverage is triggered
under a liability policy insuring the vehicle for injuries caused by the person's
negligent operation of the vehicle.
a person moves a vehicle from the zone of danger of a fire, the implied
consent of the vehicle's owner is not presumed such that liability coverage under
the policy of insurance insuring the vehicle would be triggered to cover that
person's negligent operation of the vehicle pursuant to the provisions of the
omnibus statute, W. Va. Code § 33-6- 31(a)(1998).
a person alleges injuries caused by a John Doe defendant in a motor vehicle accident,
recovery for damages caused by the John Doe is limited to recovery under the
injured person's own uninsured motorist policy of insurance.
appeal arises from the Circuit Court of Harrison County's November 26, 2003 entry
of an order granting Allstate Insurance Company's [Allstate's] motion to
dismiss Appellant's John Doe claim insofar as the claim was asserted
under a policy of insurance issued by Allstate to its insured, David Heaster.
In its order, the circuit court clarified its reasoning supporting a prior order
granting summary judgment to Karen Heaster, Administratrix for the Estate of
David Heaster, on separate but related claims made by Appellant against Mr. Heaster's
estate, in the underlying complaint, and further held that Appellant's complaint
alleging negligence on the part of John Doe did not properly state
a cause of action against Allstate, the Heaster's liability insurer. Having considered
the record below, the parties' filings before this Court and the oral argument
of counsel, we affirm the circuit court's order.
FACTS AND PROCEDURAL HISTORY
March 7, 2000, a fire occurred at the home of Karen and David Heaster in Stonewood,
Harrison County, West Virginia. Appellant Tom Collins responded to the fire
scene in connection with his duties as an employee of the Harrison County EMS.
Shortly after arriving at the scene, Collins alleges that he was struck by
a vehicle owned by David Heaster
as it was being moved (See
from the proximity of the fire by an unknown person
[John Doe] , presumed to be a neighbor of the Heasters. There were
no witnesses to this incident. After allegedly being struck by the vehicle,
Appellant proceeded to administer first aid to Karen Heaster upon her removal
from the fire. Likewise, Appellant assisted in the treatment and transportation
of David Heaster to the hospital after Mr. Heaster was removed from the burning
house in cardiac arrest. Mr. Heaster later died as a result of injuries sustained
in the fire.
6, 2002, Appellant instituted a civil action in the Circuit Court of Harrison
County, West Virginia against Karen Heaster, Administratix for the Estate of
David Heaster [Estate], and John Doe, for injuries to his neck,
shoulders, arms, and other parts of [his] body sustained in the March 7,
2000 incident. The complaint alleged:
Doe negligently drove a vehicle owned by defendant David Heaster, now deceased,
against the plaintiff . . . with the implied consent of Defendant David Heaster
. . . [and] negligently failed to exercise reasonable care to prevent the conditions
from arising and negligently failed to exercise reasonable care to reduce or
eliminate the risk or to warn plaintiff of the conditions, all of which proximately
caused the plaintiff to be struck by the vehicle owned by Defendant David Heaster,
now deceased, and suffer
A copy of Appellant's complaint was served upon Karen Heaster who timely answered
on behalf of the Estate.
discovery, the Estate moved the circuit court for entry of an order granting
summary judgment as to all allegations made directly, or indirectly, against
the Estate. The Estate's motion was premised upon an argument that because there
was no evidence that David Heaster or any of his family members were operating
the vehicle at the time of the incident or had negligently entrusted the vehicle
to anyone, liability could not be imposed upon the Estate under the family purpose
doctrine, a negligent entrustment theory or a vicarious liability theory. Further,
the Estate argued that there was no authority to permit Appellant to maintain
a third-party John Doe claim against the Estate. Instead, the Estate argued,
a John Doe claim is statutorily authorized to be asserted against a claimant's
own insurance carrier. After Appellant informed the circuit court he had no objection
to the motion for summary judgment, the circuit court dismissed all claims advanced
against Karen Heaster, Administratrix for the Estate of David Heaster, with prejudice,
by order dated December 19, 2002. (See
on June 2, 2003, Appellant caused a copy of the March 6, 2002 complaint to be
served upon John Doe in care of Allstate, the Heaster's insurance carrier,
through the West Virginia Secretary of State. Allstate responded by filing
a motion to dismiss pursuant to Rule 12(b)(6) of the West Virginia Rules
of Civil Procedure
arguing that West Virginia law does not support the
filing of a John Doe claim in the third-party liability context, but instead,
limits such claims to those made under a first-party uninsured motorist policy. (See
In response, Appellant agreed that there was no statutory
provision authorizing a third-party John Doe action. Appellant responded that
the motion to dismiss should be denied because two issues existed for resolution,
namely whether he may obtain a judgment against John Doe and whether John Doe
had implied consent to operate the Heaster vehicle.
consideration of the parties' filings and the oral argument of counsel, the circuit
court granted Allstate's motion to dismiss by order dated November 26, 2003.
The circuit court's November 26, 2003 order not only addressed the pending motion
to dismiss, but also clarified its rulings with respect to the previous motion
for summary judgment made by the Estate. Specifically, the circuit court noted
that it had previously considered all implied consent issues and found there
was no evidence to support an argument that John Doe had either David or Karen
Heaster's express or implied consent to move the vehicle which would, in turn,
impose a duty to defend and indemnify John Doe upon Allstate. Moreover, the circuit
court noted that the Estate, in its motion for summary judgment, had contended
that authority supporting the ability to assert a third party John Doe liability
claim for damages did not exist
in West Virginia. The circuit court found that Appellant could not recover
under the Heasters' uninsured motorist policy with Allstate because he was
not an Allstate insured and, further, that he could not recover under the liability
portion of the Heaster's policy with Allstate by virtue of the previous, unopposed
dismissal of the claims against the Estate. The circuit court's order noted
that West Virginia statutorily recognizes John Doe claims as claims against
an injured party's own insurance carrier. Appellant appeals the circuit court's
November 26, 2003 Order to this Court.
STANDARD OF REVIEW
matter presents to us upon appeal of an order granting Allstate's motion to
dismiss. Appellate review of a circuit court's order granting a motion
to dismiss a complaint is de novo. Syl. Pt. 2, State ex rel. McGraw
v. Scott Runyan Pontiac-Buick, 194 W. Va. 770, 461 S.E.2d 516 (1995).
To the extent the circuit court's November 26, 2003 order may be construed
as a summary judgment order because it clarifies the reasoning underlying the
circuit court's December 19, 2002 summary judgment order, the review remains de
novo. See, Syl. Pt. 1, Painter v. Peavy, 192 W. Va.
189, 451 S.E.2d 755 (1994)(holding "[a] circuit court's entry of summary
judgment is reviewed de novo."). Moreover, '[w]here the issue on
appeal is clearly a question of law or involving an interpretation of a statute,
we apply a de novo standard of review.' Syl. Pt. 1, Chrystal R.M.
v. Charlie A.L., 194 W. Va. 138, 459
S.E.2d 415 (1995). Syl. Pt. 2, Dunlop v. Friedman's Inc., 213
W. Va. 394, 582 S.E.2d 841 (2003).
West Virginia's omnibus statute, every policy of motor vehicle liability insurance
must contain a provision insuring the named insured and any other person responsible
for the use of or using the motor vehicle with the consent, expressed or
implied, of the named insured or his or her spouse against liability for
death or bodily injury sustained . . . .as a result of negligence in the operation
or use of such vehicle[.] W. Va. Code § 33-6-31(a) (1998) (emphasis
added). In Universal Underwriters Ins. Co. v. Taylor, 185 W. Va.
606, 408 S.E.2d 358 (1991), this Court stated:
purpose of an omnibus clause in an automobile insurance policy, as this Court
recognized in syllabus point 1 of State Farm Mutual Automobile Insurance Co.
v. Allstate Insurance Co., 154 W. Va. 448, 175 S.E.2d 478 (1970), is "to
extend coverage, in proper circumstances, to any person using the insured vehicle,
and to afford greater protection to the public generally . . . ." Consistent
with that purpose, we have recognized that the omnibus clause "is remedial
in nature and must be construed liberally so as to provide insurance coverage
where possible." Burr v. Nationwide Mut. Ins. Co., 178 W. Va.
398, 359 S.E.2d 626, 632 (1987).
Taylor, 185 W. Va at 608, 408 S.E.2d at 360; see also, Allstate
Ins. Co. v. State Auto. Mut. Ins. Co., 178 W. Va. 704, 364 S.E.2d
30 (1987)(finding where liable driver of a motor vehicle is insured
under a separate policy of insurance, liability policy covering the vehicle
in the accident is primarily responsible for damages sustained and driver's
individual policy is excess). Subsequent to the decision in Taylor,
this Court found that the omnibus statute contemplates that the named
insured must give express or implied permission to the person utilizing his
vehicle before coverage is triggered. Metropolitan Prop. & Liab.
Ins. Co. v. Acord, 195 W. Va. 444, 449, 465 S.E.2d 901, 906 (1995).
Thus, pursuant to West Virginia's omnibus statute, W. Va. Code § 33-6-31(a)
(1998), a person must have the permission, express or implied, of the named
insured or the insured's spouse to operate or move a motor vehicle before coverage
is triggered under a liability policy insuring the vehicle for injuries caused
by that person's negligent operation of the vehicle.
has argued that implied consent should be presumed for John Doe to move an otherwise
unoccupied vehicle out of the possible zone of danger of a fire.
This Court has discussed implied consent in relation to coverage under automobile
liability insurance policies on at least two prior occasions. In State Farm
Mutual Automobile Insurance Company v. American Casualty Co., 150 W. Va.
435, 146 S.E.2d 842 (1966), the Court held that the driver of a vehicle did not
have the named insured's implied permission to operate the vehicle such that
coverage would be triggered under the automobile policy covering the vehicle
for the driver's actions, reversing the trial court's conclusion that implied
permission (or consent) existed. State Farm, 150 W. Va. at 451-52,
146 S.E.2d at 851-52. In so doing, the Court held the burden was on the person
seeking coverage to prove facts or circumstances from which permission (or consent)
may be implied. Syl. Pt. 3, State Farm.
The automobile accident at issue in State Farm occurred when the named
insured's vehicle was being operated by a friend of the named insured's son
with the son's express permission. Although the named insured had given the
driver express permission to operate the vehicle on a prior occasion and the
named insured's son had express permission to operate the vehicle on the night
in question, the named insured had regularly admonished his son not to permit
any other person to operate the vehicle. Hence, the Court noted the son did
not have such unrestricted and general permission to use the vehicle that the
son's consent for the driver to operate the vehicle justified a finding of
implied permission (or consent) of the named insured. Id. at 450-51,
at 851-52. Likewise, this Court refused to imply the consent of a named insured
for the operation of a vehicle by a friend of the vehicle's regular driver
where the regular driver (also an insured under the policy at issue) became
intoxicated. Adkins v. Inland Mut. Ins. Co., 124 W. Va. 388, 20
S.E.2d 471 (1942). In Adkins, the Court noted the named insured's undisputed
testimony that he did not give the friend permission to operate the vehicle
at the time in question and rejected an argument that the regular driver's
intoxicated condition gave the friend implied permission (or consent) to operate
the vehicle. Adkins, 124 W.Va. at 393- 94, 20 S.E.2d at 473. As these
cases demonstrate, there is no historical precedent in West Virginia to support
Appellant's zone of danger argument in the instant matter.
Appellant has not identified for this Court, nor has our independent research
uncovered, a decision from any jurisdiction which would support the expansive
view of implied consent propounded by Appellant in this matter. Courts in other
recognized that emergencies may, in limited situations, operate to confer implied
consent to operate a vehicle upon another person. For example, in Hingham
Mut. Fire Ins. Co. v. Niagara Fire Ins. Co., 707 N.E.2d 390 (Mass.Ct.App.
1999), the court found that a vehicle's liability insurer had a duty to defend
a vehicle's passenger in a tort action arising from a one- car accident caused
by the passenger grabbing the steering wheel where the passenger alleged her
actions were precipitated by something in the roadway. Hingham,
707 N.E.2d at 392. The court noted the passenger's statements regarding an
obstacle in the roadway set forth circumstances calling for immediate action
which were reasonably susceptible of an interpretation that the vehicle's operator
would consent to the passenger's actions. Id. at 392- 93. Similarly,
in State Farm Mut. Auto. Ins. Co. v. GEICO Indem. Co., 402 S.E.2d
21 (Va. 1991), the Supreme Court of Virginia held that an exception to the
general rule that a named insured must consent to a person's operation of a
vehicle for purposes of coverage under the omnibus statute provisions of an
automobile liability policy is appropriate in emergency circumstances such
as where the driver has become incapacitated. State Farm, 402 S.E.2d
at 23. In State Farm, although the vehicle owners' daughter had general
permission to drive the vehicle, she was expressly prohibited from allowing
anyone else to operate it. Id. at 21. One evening, the daughter became
ill while operating the vehicle and asked a passenger to drive. Id. Subsequently,
the vehicle was involved in an accident. Id. The court noted that [i]f
a driver becomes incapacitated for some reason, concerns over whether a subsequent
driver would be covered by insurance should not be a factor in the decision
to place a qualified, able driver behind the wheel. Id. at 23.
It is noteworthy that these limited examples of implied consent
from other jurisdictions involve circumstances where immediate action was necessary
to avoid serious harm or risk of harm to the insured or another occupant of
this Court has rejected driver intoxication as justification for implied consent. See Adkins
v. Inland Mut. Ins. Co., 124 W. Va. 388, 20 S.E.2d 471 (1942) Notwithstanding
the decision in Adkins, this Court tends to agree that during certain
extreme emergencies, such as driver incapacitation or the imminent risk of serious
bodily harm to an occupant of the vehicle, circumstances may be sufficient to
presume the implied consent of a vehicle's owner such that the substitute driver
may be deemed a permissive user covered by the vehicle's liability policy pursuant
to the provisions of West Virginia's omnibus statute, W. Va Code § 33-6-31(a)
(1998). However, such a situation is not currently before this Court and, therefore,
we need not conclusively decide the issue. Instead, the circumstance presented
to this Court is that of a John Doe moving an unoccupied vehicle out of the possible zone
of danger of a house fire. This Court does not deem such a circumstance
sufficient to rise to the level of an emergency justifying the presumption of
the vehicle owner's implied consent for John Doe's actions. Accordingly, this
Court holds where a person moves an otherwise unoccupied vehicle from the zone
of danger of a fire, the implied consent of the vehicle's owner is not
presumed such that liability coverage under the policy of insurance insuring
the vehicle would be triggered to cover that person's negligent operation of
the vehicle pursuant to the provisions of the omnibus statute, W. Va. Code § 33-6-31(a)(1998).
Thus, as the circuit court found no evidence to support an argument that either
David or Karen Heaster
expressly or impliedly consented to John Doe's operation of the motor vehicle
before granting summary judgment to the Estate, and we have found, as a matter
of law, that implied consent cannot be inferred from the circumstances presented,
the circuit court did not err in granting Allstate's motion to dismiss.
turn to the scope of permissible John Doe claims arising from automobile accidents
under West Virginia law. West Virginia law requires every policy of automobile
insurance issued or delivered in this State to include a minimum amount of uninsured
motorist coverage payable to the insured as damages the insured is legally entitled
to recover from the owner or operator of an uninsured motor vehicle. W. Va.
Code § 33-6- 31(b) (1998). Additionally, the West Virginia Legislature has
specifically authorized the filing of claims to recover uninsured motorist benefits
where the owner or operator of a vehicle causing bodily injury is unknown and
has set forth the parameters for proceeding against a John Doe defendant. W. Va.
Code § 33-6-31 (e) (1998). By defining claims against an unknown owner or
operator of a motor vehicle as claims under the uninsured person's uninsured
motorist provisions of motor vehicle policy of insurance, the Legislature has
demonstrated an intent to limit the ability to assert a claim against a John
Doe defendant arising from a motor vehicle accident to claims against an injured
person's own uninsured motorist policy of insurance. As the Legislature has spoken
on this issue, this Court will not supercede legislative intent by recognizing
John Doe claims where the Legislature has chosen not to do so. Thus, we hold
that, under West Virginia law, where a person alleges injuries caused by a
John Doe defendant in a motor vehicle accident, recovery for damages caused
by the John Doe is limited to recovery under the injured person's own uninsured
motorist policy of insurance. As Appellant is not an insured under the uninsured
motorist provisions of the policy of insurance issued by Allstate to the Heasters,
the complaint against John Doe fails to state a cause of action against Allstate
and the circuit court properly granted Allstate's motion to dismiss.
upon the foregoing discussion, we conclude that the Circuit Court of Harrison
County did not err in granting Allstate's motion to dismiss. Under West Virginia
law, a person operating a motor vehicle must have the consent, express or implied,
of the vehicle's owner or the owner's spouse before coverage is afforded to
the operator under the motor vehicle liability insurance policy insuring the
vehicle. Consent is not deemed implied where a John Doe negligently moves an
otherwise unoccupied vehicle out of the zone of danger of a fire.
In circumstances where a party is injured by a John Doe's negligent operation
of a motor vehicle, the injured party is limited to a claim against his or
her own uninsured motorist policy of insurance.
Footnote: 1 Appellant
is not sure whether the vehicle's engine was running or whether it was being
pushed or drifting at the time of the alleged incident. Allstate further argues
there is a question as to whether any vehicle owned by Karen and/or
David Heaster was actually involved in this alleged incident. For purposes
of this appeal we assume that an incident as described by Appellant did occur. See
State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770,
776, 461 S.E.2d 516, 522 (1995)(noting that when reviewing motion to dismiss,
factual allegations are to be taken in light most favorable to non-moving party).
Footnote: 2 The
December 19, 2002 Order granting summary judgment noted it omitted detailed
findings of fact and conclusions of law because there was no objection to its
Footnote: 3 Allstate
also noted the lack of authority for Appellant to pursue a John Doe claim under
the Estate's liability policy where the claims against the Estate were previously
dismissed, with prejudice.