PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims, 

JJ., and Russell and Lacy, S.JJ.

PAULINE DABNEY

OPINION BY

v. Record No. 100841 JUSTICE LEROY F. MILLETTE, JR.

 June 9, 2011

AUGUSTA MUTUAL INSURANCE

COMPANY, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE

Paul M. Peatross, Jr., Judge Designate

In this appeal, we consider two issues. First, whether 

the circuit court erred in barring the jury from considering 

whether an insurer discovered a claim under an insured’s policy

in early 2005 when the plaintiff’s amended complaint only 

alleged that the insurer discovered the claim in 2004. Second, 

whether the circuit court erred in ruling as a matter of law

that an insured’s notice of a claim to its insurer was not made 

“as soon as is practical,” as required by the insurance policy.

I. BACKGROUND

On April 9, 2002, Pauline Dabney was in her yard when she 

was approached by two pit bull dogs roaming freely through her 

neighborhood. The dogs lunged toward her, and she fell while 

attempting to escape from them. Her shoulder was “knocked

. . . out of place” and her arm was broken in three places as a 

result of the fall.

Shortly after the attack, Dabney sought help from a 

friend, William D. Adams, who attempted to locate the owner of 
2

the dogs. After investigating for a few months, Adams finally 

discovered that the dogs lived at the home of Elease Otey. 

Otey, however, had died a few weeks earlier. In July 2002, 

Adams went to Otey’s house and spoke with Dwight Reynolds, 

Otey’s former boyfriend, who owned the dogs. Adams confirmed 

that Reynolds’ dogs were the dogs that attacked Dabney.

In November 2002, Thelma Jenkins, Otey’s mother and 

housemate, qualified as the administrator of Otey’s estate. At 

the time of the attack, Otey held an insurance policy (the 

Augusta policy) issued by Augusta Mutual Insurance Company 

(Augusta). Jenkins did not discover the Augusta policy until 

March 2003, when she made a claim under the policy for damages

resulting from a house fire. The Augusta policy was cancelled 

shortly thereafter.

The Augusta policy, which was in effect at the time of 

Dabney’s injury, provides that, as a condition of coverage, 

“[i]n case of an accident or ‘occurrence,’ the ‘insured’ ” must 

“[g]ive written notice to us or our agent as soon as is 

practical.” The policy also requires that the insured 

“[p]romptly forward to us every notice, demand, summons or 

other process relating to the accident or ‘occurrence.’ ”1

 1 For purposes of our discussion, we assume that the attack

that caused Dabney’s injuries constitutes an “accident” or 

“occurrence” under the Augusta policy.
3

In June 2003, Dabney filed a motion for judgment against 

Reynolds and Jenkins, as the administrator of Otey’s estate, 

seeking damages for the injuries Dabney sustained in the 

attack. Jenkins was served in August 2003 and retained a 

lawyer, Lance Hale, to represent her. On May 5, 2004, Hale 

sent a letter to Augusta notifying Augusta of Dabney’s lawsuit. 

Hale sent the letter to the address provided in the Augusta 

policy, but Augusta had moved before the letter was sent and 

had not notified Otey or Jenkins of its change of address. 

Hale received no response from Augusta, and the letter was not 

returned to his office.

On January 18, 2005, Dabney’s friend Adams contacted 

Augusta on Dabney’s behalf, and spoke with a representative in 

the claims department. Adams told the representative about the 

lawsuit and faxed the May 2004 letter sent by Hale, which the 

representative said Augusta had not received.

On April 6, 2005, Dabney’s counsel, Randy Cargill, in an 

attempt to settle the claim, sent Augusta a letter, which 

included Dabney’s medical records documenting her injuries. By 

April 15, Augusta had created an internal office memorandum

that contained a narrative of the attack.

On May 13, 2005, Cargill sent Augusta copies of the 

pleadings in Dabney’s personal injury action. On June 20, 

2005, Augusta notified Cargill that it would not provide 
4

coverage based on the insured’s (Jenkins’) alleged failure to 

timely notify Augusta of the claim.

In March 2006, Dabney filed a separate action for 

declaratory relief against Augusta and Jenkins in her capacity 

as administrator of Otey’s estate. Dabney sought a declaration 

that Augusta had a duty to defend and indemnify Otey’s estate 

against the claims alleged by Dabney in her motion for 

judgment. In 2008, the underlying personal injury action 

settled. Jenkins confessed judgment for $78,000 and assigned 

to Dabney the estate’s claims against Augusta.

Before trial, Augusta filed a motion for summary judgment. 

Augusta argued that it had no duty to defend or indemnify 

Otey’s estate because Jenkins breached the terms of the Augusta 

policy by failing to provide Augusta with timely written notice 

of Dabney’s injury and subsequent claim. Dabney responded that 

whether Jenkins gave timely written notice of Dabney’s claim to 

Augusta was a matter that must be determined by the trier of 

fact. Dabney also asserted that Augusta waived its right to

deny Dabney’s claim due to the insured’s failure to provide 

timely notice. According to Dabney, when Augusta failed to

provide her or her counsel timely notice of its intention to 

rely on a defense of Jenkins’ alleged breach of the policy, as 
5

required by Code § 38.2-2226,2 Augusta waived its defense based 

on that breach. The circuit court denied Augusta’s motion.

Thereafter, the circuit court, over Augusta’s objection, 

granted Dabney leave to file an amended complaint, which added

the following language: “The June 2005 notice by defendant 

Augusta Mutual was untimely and its failure to timely determine 

the question of coverage for the Otey Estate acts as a waiver 

of any right it may have to deny coverage.” The amended 

complaint also stated that Jenkins provided Augusta with the 

required timely notice of a claim through Hale’s May 2004 

letter to Augusta. The amended complaint did not allege any 

other act as constituting notice to Augusta of Dabney’s

injuries and subsequent claim.

At trial, Augusta made a motion to strike at the close of 

Dabney’s evidence. Augusta first argued that the evidence 

 2 Code § 38.2-2226, entitled “Insurer to give notice to 

claimant of intention to rely on certain defenses and of 

execution of nonwaiver rights of agreement,” provides in 

pertinent part:

Whenever any insurer on a policy of liability 

insurance discovers a breach of the terms or 

conditions of the insurance contract by the insured, 

the insurer shall notify the claimant or the 

claimant’s counsel of the breach. Notification shall 

be given within forty-five days after discovery by 

the insurer of the breach or of the claim, whichever 

is later . . . . Failure to give the notice within 

forty-five days will result in a waiver of the 

defense based on such breach to the extent of the 

claim by operation of law.
6

showed that Jenkins did not notify Augusta of Dabney’s claim 

until Hale’s May 2004 letter - 254 days after service of 

Dabney’s personal injury action pleading was effected upon 

Jenkins, on August 26, 2003. Augusta asserted that this was a 

clear breach of the Augusta policy, which requires the insured 

to give written notice “as soon as [is] practical.” Given the 

length of the delay, Augusta argued that Jenkins’ notice was 

unreasonable as a matter of law.

Second, Augusta addressed Dabney’s claim that Augusta 

waived its defense of lack of timely notice, pursuant to Code 

§ 38.2-2226, by not notifying Dabney of its intent to rely on 

the defense of Jenkins’ breach of the Augusta policy within 45 

days of receiving the allegedly untimely notice of the claim

from Jenkins. Although the evidence showed that Augusta 

received information regarding Dabney’s personal injury action 

in January and April 2005, Augusta argued that the jury should 

not be allowed to consider this evidence because Dabney’s 

amended complaint did not allege that Augusta received notice 

of Dabney’s claim in 2005. According to Augusta, Dabney’s 

amended complaint only alleged that Jenkins provided notice to 

Augusta in May 2004. For this reason, Augusta contended that 

the issue submitted to the jury should be limited to whether 

Augusta had notice of Dabney’s claim in May 2004.
7

The circuit court granted Augusta’s motion to strike 

Dabney’s evidence regarding Augusta’s discovery of the claim in 

2005. The court ruled that Dabney was bound by the allegations 

in her amended complaint, which only alleged that Jenkins gave 

Augusta notice of Dabney’s claim in May 2004. Because the 

amended complaint did not allege that Augusta discovered the 

claim at any time in 2005, the court ruled that the jury could 

not consider whether Augusta had notice of the claim in 2005 

for purposes of Dabney’s waiver argument under Code § 38.2-

2226.

The circuit court stated that the only issue submitted to 

the jury would be whether Augusta received Hale’s May 2004 

letter as notice of Dabney’s claim. If Augusta did not receive 

the letter, then the court, based on Dabney’s pleading, would 

conclude that Augusta’s defense of Jenkins’ breach of the 

policy was not waived under Code § 38.2-2226. But, if the jury 

determined that Augusta did receive Hale’s May 2004 letter, 

then the court would conclude that Augusta waived its defense 

of a breach of the policy because Augusta conceded that there 

was no communication to Dabney within 45 days of receipt of the 

May 2004 letter, as required by Code § 38.2-2226. The court 

took under advisement Augusta’s motion that Jenkins’ notice 

under the Augusta policy was untimely as a matter of law.
8

At the close of all evidence, Augusta renewed its motion 

to strike on the same grounds, and the court confirmed its 

earlier ruling. Consistent with its ruling, the court refused 

Dabney’s proposed jury instructions and verdict form that would 

have allowed the jury to decide whether Augusta discovered

Dabney’s personal injury action in early 2005, and thus waived 

its defenses by operation of Code § 38.2-2226. The jury was 

instructed to make a factual finding whether Augusta received 

Hale’s May 2004 letter. In a “special interrogatory to the 

jury,” the jury found that Augusta did not receive Hale’s May 

2004 letter.

As a result of this finding, the circuit court ruled as a 

matter of law that notice of Dabney’s claim was never received 

by Augusta at any time in calendar year 2004, and therefore 

notice of the accident and claim was untimely under the terms 

of the Augusta policy. The court also ruled that the waiver 

provisions of Code § 38.2-2226 did not apply because the jury

found that Augusta did not receive Hale’s May 2004 letter,

which was the alleged notice of the claim. The court entered 

judgment in favor of Augusta, ruling that it had no obligation 

to defend or indemnify Otey’s estate because Jenkins’ notice of 

a claim under the policy, which is a condition precedent to 

coverage, was untimely. We awarded Dabney this appeal.

II. DISCUSSION
9

A. Augusta’s Discovery of Dabney’s Claim in Early 2005

Dabney argues that the circuit court erred by refusing to 

allow the jury to consider whether Augusta discovered Dabney’s 

claim in early 2005. Dabney asserts that the jury should have 

been allowed to consider whether Augusta was notified of 

Dabney’s claim on January 18, 2005, when Adams contacted an 

Augusta representative about Dabney’s claim or on April 6, 

2005, when Cargill sent Augusta a letter regarding Dabney’s 

claim. It is Dabney’s contention that had the jury determined 

that Augusta received such notice on either date, Augusta’s 

defense of breach of the policy would have been waived by 

operation of Code § 38.2-2226 because Augusta’s notice to 

Dabney of Jenkins’ breach of the policy would have been sent 

more than 45 days after it discovered Dabney’s claim. In 

support of this argument, Dabney notes the extensive evidence 

presented at trial regarding Augusta’s discovery of Dabney’s 

personal injury action in early 2005.

Dabney argues that her amended complaint sufficiently 

pleaded that Augusta’s notice to Dabney of a breach of the 

policy was untimely. Dabney contends that the language in the 

amended complaint, which states that “[t]he June 2005 notice by 

defendant Augusta Mutual was untimely and its failure to timely 

determine the question of coverage for the Otey Estate acts as 

a waiver of any right it may have to deny coverage” supports 
10

her argument. Dabney concedes that the only date alleged in 

the complaint regarding Jenkins’ notice to Augusta regarding 

Dabney’s action was Hale’s May 2004 letter. Dabney argues, 

however, that her allegation that Augusta’s notice to her of a 

breach was untimely was sufficient to allow the jury to 

consider whether Augusta “discovered” Dabney’s claim in early 

2005.

The law in Virginia is well established that a court 

cannot enter judgment based on facts that are not alleged in 

the parties’ pleadings:

A litigant’s pleadings are as essential as his 

proof, and a court may not award particular relief 

unless it is substantially in accord with the case 

asserted in those pleadings. Brooks v. Bankson, 248 

Va. 197, 206, 445 S.E.2d 473, 478 (1994); Gwinn v. 

Collier, 247 Va. 479, 484, 443 S.E.2d 161, 164 

(1994); Ted Lansing Supply Co. v. Royal Aluminum & 

Constr. Corp., 221 Va. 1139, 1141, 277 S.E.2d 228, 

229 (1981). Thus, a court is not permitted to enter 

a decree or judgment order based on facts not alleged

or on a right not pleaded and claimed. Hensley v. 

Dreyer, 247 Va. 25, 30, 439 S.E.2d 372, 375 (1994); 

Harrell v. Woodson, 233 Va. 117, 121, 353 S.E.2d 770, 

773 (1987); Ted Lansing Supply Co., 221 Va. at 1141, 

277 S.E.2d at 229; see Ainslie v. Inman, 265 Va. 347, 

356, 577 S.E.2d 246, 251 (2003); Smith v. Sink, 247 

Va. 423, 425, 442 S.E.2d 646, 647 (1994).

The rationale supporting this basic rule is 

plain. As we have stated, “[e]very litigant is 

entitled to be told by his adversary in plain and 

explicit language what is his ground of complaint or 

defense. . . . The issues in a case are made by the 

pleadings, and not by the testimony of witnesses or 

other evidence.” Ted Lansing Supply Co., 221 Va. at 

1141, 277 S.E.2d at 230 (quoting Potts v. Mathieson 
11

Alkali Works, 165 Va. 196, 207, 181 S.E. 521, 525 

(1935)).

Jenkins v. Bay House Assocs., L.P., 266 Va. 39, 43-44, 581 

S.E.2d 510, 512 (2003).

In this case, Dabney’s amended complaint alleged that

Hale’s May 2004 letter was Jenkins’ notice to Augusta of 

Dabney’s personal injury action. The amended complaint did not 

allege any other time when Augusta received notice or 

discovered Dabney’s personal injury action. Based on these

allegations, the case pleaded by Dabney was limited to the 

theory that Augusta received notice of Dabney’s personal injury 

action in May 2004. The absence of any allegation that Augusta 

received notice of Dabney’s action at any other time precluded 

the jury’s consideration of whether Augusta had notice of 

Dabney’s action in early 2005.

The circuit court’s decision properly limited Dabney to 

relief based on the allegations in her amended complaint. We 

find no merit in Dabney’s argument that the jury should have 

been allowed to determine whether Augusta had notice of her 

personal injury action in early 2005 because the evidence 

presented at trial established such notice. As we stated 

previously, “[t]he issues in a case are made by the pleadings, 
12

and not by the testimony of witnesses or other evidence.” Id.3 

Because the amended complaint only alleged that Augusta had 

notice of Dabney’s personal injury action via Hale’s May 2004 

letter, the circuit court did not err in refusing to allow the 

jury to determine whether Augusta had notice of Dabney’s action 

in early 2005.

B. Jenkins’ Notice to Augusta

Dabney argues that the circuit court erred by refusing to 

permit the jury to determine whether Jenkins’ notice of a claim

was made “as soon as is practical,” as required by the Augusta 

policy. Dabney asserts that this issue should have been 

decided by the jury, not by the circuit court as a matter of 

law, in light of the extenuating circumstances as illustrated 

by the facts of the case. Specifically, Dabney notes that 

there was a delay of “several months” in identifying the 

location and owner of the dogs that attacked her. By the time 

the dogs were located, Otey, the insured, had died. Jenkins, 

as administrator of Otey’s estate, had not discovered the 

Augusta policy until after the 2003 fire. And Augusta had 

changed its address without notifying Jenkins. In light of 

these extenuating circumstances, Dabney contends that the 

 3 Dabney’s counsel did not argue to the circuit court that, 

pursuant to Code § 8.01-377, its pleading could have been 

amended to conform to the evidence presented at trial.
13

question whether Jenkins’ notice to Augusta was “as soon as is 

practical” should have been submitted to the jury.

It is well settled that performance of the notice 

provision of an insurance policy is a condition precedent to 

coverage, which requires “substantial compliance” by the 

insured. State Farm Fire & Cas. Co. v. Scott, 236 Va. 116, 

120, 372 S.E.2d 383, 385 (1988). In this case, the Augusta 

policy provided that the insured (here, Jenkins as 

administrator of Otey’s estate) must give Augusta “written 

notice” of an accident “as soon as is practical.” “The 

requirement that notice be given ‘as soon as practicable’ means 

that it must be given within a reasonable time after the 

accident, and what constitutes a reasonable time depends upon 

the facts and circumstances of each case.” Id.

“Generally, whether notice has been given to the insurer 

‘as soon as practicable’ is an issue to be resolved by a fact 

finder.” Id. The issue only becomes one for the circuit court 

to decide as a matter of law “when the facts are undisputed and 

certain.” State Farm Mut. Auto. Ins. Co. v. Douglas, 207 Va. 

265, 268, 148 S.E.2d 775, 777 (1966). But “when the facts are 

disputed or the inferences are uncertain, or when there are 

extenuating circumstances for the delay,” then the issue is one 

of fact for the jury. Id.
14

In Douglas, in addressing whether an insured gave its 

insurer notice “as soon as practicable,” we made it clear that 

there is not a fixed number of days in which notice must be 

given for it to be reasonable. Id. at 268, 148 S.E.2d at 778 

(“What may be a reasonable time under some conditions may be 

unreasonable under certain other conditions.”). In this case, 

however, the circuit court ruled as a matter of law that a 254-

day delay in providing notice was not reasonable. In making 

this ruling, the court only focused on the length of the delay, 

and failed to consider the facts and circumstances surrounding 

the delay.

The language in the Augusta policy that the insured give 

notice of an accident “as soon as is practical” means that the 

notice must be given within a reasonable time after the 

accident. In this case, the “accident” occurred when Dabney 

was attacked by the dogs. The timeliness of the notice of the 

attack must be considered in light of all the facts and 

circumstances presented in the case.

In this case, there is no evidence that the insured, Otey, 

knew of the attack before her death. Further, from the 

evidence, it is not clear when Jenkins first learned of the 

attack. It took Dabney several months to locate the dogs that 

attacked her and determine Reynolds to be the owner of the 

dogs, and Otey to be the owner of the premises on which the 
15

dogs were kept. Also, Jenkins did not discover the Augusta 

policy until after she made a claim under the policy for a 

house fire that occurred in March 2003. Shortly after that 

time, the Augusta policy was canceled. Jenkins attempted to 

send Augusta notice of Dabney’s personal injury action in May 

2004. The letter, sent by her attorney Hale, was sent to the 

address listed in the Augusta policy, which unbeknownst to 

Jenkins was not Augusta’s current address at the time the 

letter was sent.

Given the extenuating circumstances presented in this 

case, whether Jenkins’ notice was timely under the Augusta 

policy was a question of fact upon which reasonable minds could 

disagree. For this reason, the circuit court erred in ruling 

that Jenkins’ notice was untimely under the Augusta policy as a 

matter of law. The issue whether Jenkins’ notice 

“substantial[ly] compli[ed]” with the Augusta policy’s 

condition precedent - that notice of an accident be given “as 

soon as is practical” - should have been submitted to the jury. 

Scott, 236 Va. at 120, 372 S.E.2d at 385.

III. CONCLUSION

For the foregoing reasons, we will affirm the circuit 

court’s judgment barring the jury from considering whether 

Augusta discovered Dabney’s personal injury action in early 

2005, reverse the judgment of the circuit court ruling that 
16

Jenkins’ notice to Augusta was untimely as a matter of law, and 

remand the case for further proceedings. On remand, the 

question of whether Jenkins substantially complied with the 

Augusta policy’s notice requirement shall be decided by the 

jury.

Affirmed in part,

reversed in part,

 and remanded.