Appeals from the Superior Court of the District of Columbia (CA-3665-97) (Hon. Gregory E. Mize, Trial Judge).
The opinion of the court was delivered by: Terry, Senior Judge
Before RUIZ, Associate Judge, and PRYOR and TERRY, Senior Judges.*fn1
Appellant, Karen Macci, appeals from two separate orders of the Superior Court. The first order granted summary judgment to appellee,
Allstate Insurance Company; the second denied appellant's motion for relief from judgment under Superior Court Civil Rule 60 (b)(1). The circumstances of this case closely parallel those in Conteh v. Allstate Insurance Co., 782 A.2d 748 (D.C. 2001). Because Conteh is dispositive, we affirm the order granting summary judgment to Allstate. However, for reasons which we shall explain in part III of this opinion, we vacate the order denying the Rule 60 (b)(1) motion as to Allstate and remand the case to the trial court for further proceedings.
On March 22, 1995, as appellant was walking near the intersection of K Street and Wisconsin Avenue, Northwest, in the District of Columbia, she was struck and injured by a car driven by Laurent Dummas, an uninsured motorist. Appellant sought to recover for her injuries by filing a civil action in 1997 against Dummas and her own automobile insurance carrier, Allstate Insurance Company, alleging negligence by Dummas and a breach of contract - failure to pay uninsured motorist benefits - by Allstate.*fn2 Appellant was unable to locate Dummas and serve him with a summons and complaint, however, and as a result the court dismissed Dummas from the case without prejudice. Allstate then filed a motion for summary judgment, contending that appellant was required to show Dummas' legal liability to her in the form of a judgment before it was obliged to provide uninsured motorist coverage under the terms of its policy. Because Dummas had been dismissed from the suit, appellant was unable to establish his liability; consequently, the trial court agreed with Allstate and granted its motion for summary judgment.
After that judgment was entered, appellant made another attempt to serve Dummas with a summons and complaint, and this time she was successful. Appellant then filed a motion for relief from judgment under Rule 60 (b)(1) seeking to reopen the case against both Dummas and Allstate. The court ruled that appellant's inability to serve Dummas amounted to excusable neglect because Dummas had intentionally avoided service of process. The court therefore granted the motion as to Dummas and vacated its earlier order dismissing him from the case as a defendant. With respect to Allstate, however, the court found no grounds for reopening the case. It found that service of process occurred after the court granted judgment to Allstate and that Allstate had previously defended the action before the court. Finally, the court noted that appellant still had not obtained a judgment against Dummas, and that she was therefore still ineligible to recover under the terms of her uninsured motorist coverage despite her successful service of process on Dummas. For these reasons, the court denied the Rule 60 (b)(1) motion for relief from judgment as to Allstate.
Appellant then filed a motion for default against Dummas, which the court granted. After an ex parte proof hearing, the court entered a default judgment against Dummas for $9,000.
In Conteh v. Allstate Insurance Co., 782 A.2d 748 (D.C. 2001), this court addressed substantially the same issue appellant raises in her appeal from the summary judgment. Allstate's contract of insurance, formed in Virginia, expressly incorporates Virginia Code § 38.1-381 "and all Acts amendatory thereof or supplementary thereto . . . ." Section 38.1-381 has been superseded by Virginia Code § 38.2-2206, which states in relevant part:
A. [With an exception not pertinent here], no policy or contract of bodily injury or property damage liability insurance relating to the ownership, maintenance, or use of a motor vehicle shall be issued or delivered in this Commonwealth [of Virginia] to the owner of such vehicle . . . unless it contains an endorsement or provisions undertaking to pay the insured all sums that he is legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle.
F. If any action is instituted against the owner or operator of an uninsured . . . motor vehicle by any insured intending to rely on the uninsured . . . 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 the insurer in the manner prescribed by law, as though the insurer were a party defendant. . . . 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 . . . motor vehicle or in its own name.
Va. Code Ann. § 38.2-2206 (2002). The Virginia courts have interpreted this section to require an injured party seeking to recover under uninsured motorist coverage to show that a judgment has been obtained against an uninsured motorist before there can be any recovery against an insurer. See Conteh, 782 A.2d at 751 (citing Midwest Mutual Insurance Co. v. Aetna Casualty & Surety Co., 216 Va. 926, 929, 223 S.E.2d 901, 904 (1976) (requiring proof of a judgment before proceeding against an insurance carrier), and Willard v. Aetna Casualty & Surety Co., 213 Va. 481, 482, 193 S.E.2d 776, 778 (1973) ...