UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CAROL C. KIGER, individually;

CAROL C. KIGER, Executrix of the

Estate of Brian F. Kiger,

Plaintiffs-Appellants,

v.

THE CINCINNATI INSURANCE COMPANY;

JOHN DOE,

No. 96-1313

Defendants-Appellees,

and

GENERAL MOTORS CORPORATION, a

Delaware corporation doing

business in the State of West

Virginia,

Defendant.

Appeal from the United States District Court

for the Northern District of West Virginia, at Wheeling.

Frederick P. Stamp, Chief District Judge.

(CA-93-83-5)

Argued: January 28, 1997

Decided: March 31, 1997

Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and

HILTON, United States District Judge for the Eastern District of

Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Scott Steven Blass, BORDAS, BORDAS & JIVIDEN,

Wheeling, West Virginia, for Appellants. Dara A. DeCourcy, ZIMMER KUNZ, P.C., Pittsburgh, Pennsylvania, for Appellees. ON

BRIEF: James B. Stoneking, James G. Bordas, Jr., BORDAS, BORDAS & JIVIDEN, Wheeling, West Virginia, for Appellants. George

N. Stewart, ZIMMER KUNZ, P.C., Pittsburgh, Pennsylvania, for

Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Carol Kiger (Kiger) sued Cincinnati Insurance Company and an

unknown motorist for uninsured motorist coverage under West Virginia Code § 33-6-31. Kiger appeals from district court orders

granting the defendants' motion to dismiss. We affirm.

I.

Kiger's husband, Brian Kiger (Mr. Kiger), died in an automobile

accident on June 20, 1991, at 2:45 a.m. on Interstate 70 near Wheeling, West Virginia. Mr. Kiger was driving east in the far left

lane of

three lanes. His car drifted off to the left onto the center

median, then

returned onto the highway and rolled over several times, crossing

the

eastbound lanes and coming to rest against the guardrail. Witnesses

told police a second car, which was traveling in the center lane,

left

the scene. The police treated the accident as a"single vehicle

accident."

In 1993 Kiger sued General Motors Corporation for product liability, claiming that a product defect in the axle shaft caused Mr.

Kiger

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to lose control of the company car (a 1991 Oldsmobile Bravada) he

was driving. In subsequent depositions, witnesses to the accident

said

that the second car may have run Mr. Kiger's car off the road. In

September 1994 Kiger amended her complaint to include as defendants

the unknown driver of the second car (John Doe) and Mr. Kiger's

insurance company, Cincinnati Insurance Company (Cincinnati).

Kiger claimed that John Doe negligently caused the accident and

that

Cincinnati was liable to her under her husband's policy for

uninsured

motorist coverage. Kiger ultimately settled her claim with General

Motors.

West Virginia Code § 33-6-31 provides for uninsured and underinsured motorist coverage. Motor vehicle insurance policies in West

Virginia must contain a provision "undertaking to pay the insured

all

sums which he shall be entitled to recover as damages from the

owner

or operator of an uninsured motor vehicle . . . ." See W. Va. Code

§ 33-6-31(b). Section 33-6-31 also provides that a "motor vehicle

shall be deemed to be uninsured if the owner or operator thereof be

unknown . . . ." See id. § 33-6-31(c). In accordance with the

statute

Mr. Kiger's policy provided: "[w]e will pay all sums the `insured'

is

legally entitled to recover as compensatory damages from the owner

or driver of an `uninsured' or `underinsured motor vehicle.'" The

policy also provided: "`[u]ninsured motor vehicle' means a land motor

vehicle or trailer... [w]hich is a hit-and-run vehicle and

neither the

driver nor owner is identifiable."

In her amended complaint Kiger contends that under Mr. Kiger's

policy Cincinnati must pay all sums she is entitled to recover as

compensatory damages from John Doe. Cincinnati filed a motion to dismiss in its own right and on behalf of John Doe. In its motion

Cincinnati first argued that Kiger cannot sue Cincinnati directly

until

she obtains a judgment against John Doe. The district court agreed

and dismissed the action as to Cincinnati. Cincinnati next argued

that

the two-year statute of limitations for personal injury actions

barred

the action against John Doe. Kiger argued in response that the

action

was a contract dispute with Cincinnati and that the ten-year

statute of

limitations for contract actions applied. The district court held
that the

John Doe action was a personal injury action and dismissed the

case.

We affirm.

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II.

A.

The district court properly relied on Davis v. Robertson, 332

S.E.2d

819, 826 (W. Va. 1985), to dismiss the direct action against

Cincinnati. In Davis the West Virginia Supreme Court held that the West

Virginia uninsured motorist coverage statute "does not authorize a

direct action against the insurance company providing uninsured

motorist coverage until a judgment has been obtained against the

uninsured motorist." Id. The Davis court reasoned that the John

Doe

provisions of the statute, which allow the plaintiff to proceed

against

a fictional person, would be unnecessary if the insured could

directly

sue the insurer.

Postlethwait v. Boston Old Colony Ins. Co. , 432 S.E.2d 802, 807

(W. Va. 1993), created a narrow exception to the Davis rule against

direct actions. In Postlethwait the tortfeasor was known but was

underinsured. The plaintiffs settled with the tortfeasor's

insurance

company for the full amount of the tortfeasor's liability coverage,

and

the plaintiffs' insurance company waived its subrogation rights

against the tortfeasor. The plaintiffs then sued their own

insurance

company directly for underinsured motorist coverage. The

Postlethwait court held that (1) if the plaintiff has settled with

the tortfeasor's liability carrier for the full amount of the policy and

(2) if the

plaintiff's insurance company has waived its right of subrogation

against the tortfeasor, then the plaintiff may bring a direct

first-party

action against its own insurance company. The court reasoned that

the

purpose of the Davis rule was to consolidate the liability action

against the tortfeasor and the coverage action against the

plaintiff's

insurance company into one judicial proceeding. In Postlethwait the

settlement had already determined the tortfeasor's liability to the

plaintiff. And the plaintiff's insurance company had waived its

right

to subrogation, which eliminated the possibility of a subsequent

trial

against the tortfeasor. Coverage was the only remaining issue, and

"to

require the Postlethwaits to take the additional step of getting a

judg-
ment against the tortfeasor flies in the face of concepts of

judicial

economy." Postlethwait, 432 S.E.2d at 806.

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The Postlethwait exception does not apply to this case. Judicial

economy dictated the Postlethwait exception: if the plaintiff

settles

with the tortfeasor and the plaintiff's insurance company waives

its

subrogation rights, then there is no reason to require the

plaintiff to

obtain a judgment against the tortfeasor. In this case, however,

Kiger

has not established the liability of the tortfeasor. Nor has

Cincinnati

waived its subrogation rights. So if Kiger sues Cincinnati directly

and

wins, Cincinnati could then sue John Doe (if he was found) in a

separate judicial proceeding. Section 33-6-31 contemplates a direct

action

against the tortfeasor only, unless a judicial economy exception

applies. No such exception applies to this case. We therefore agree

with the district court that Kiger may not maintain a direct action

against Cincinnati.*

B.

The district court also properly dismissed the action against John

Doe, reasoning that the two-year statute of limitations for

personal

injury actions applied. See W. Va. Code§ 55-2-12(b). The accident

occurred on June 20, 1991. Kiger moved to amend her complaint to

sue John Doe on September 28, 1994, more than two years after the

date of the accident. The district court held that personal injury

liability is the issue in the John Doe action and therefore the two-year

limit

applies. We agree. West Virginia law treats John Doe actions for

uninsured motorist coverage as tort actions. See Perkins v. Doe,

350

S.E.2d 711, 713 (W. Va. 1986) ("The `John Doe' suit initiated by

the

Perkins is an action in tort.").

Kiger argues that a John Doe suit for uninsured motorist coverage

is a contract action subject to a ten-year limit. The first case

she relies

on is Lee v. Saliga, 373 S.E.2d 345, 349 (W. Va. 1988). West Vir-

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*Kiger also argues that she can bring a direct action because she

meets

the only precondition to suit against Cincinnati--"full compliance"

with

the terms and conditions of the policy. But the policy limits

uninsured

motorist claims to the amount which the insured is"legally entitled
to

recover." Until Kiger obtains a judgment against John Doe, she is

not

"legally entitled" to recover. See Davis , 332 S.E.2d at 826.

Therefore, she

has not met a condition that the policy requires before she can sue

Cincinnati for coverage.

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ginia law requires that in uninsured motorist cases the uninsured

vehicle must make physical contact with the insured vehicle. In Lee the

court considered whether physical contact was a condition precedent

to coverage when the accident occurred in West Virginia but the

insured's policy was issued in Pennsylvania. The court found that

the

question was a dispute over policy coverage between the insured and

the insurer rather than a dispute over liability. As such, it was

a contract question for purposes of conflicts-of-law analysis. Id. The

result

was that Pennsylvania law applied, and there was no physical

contact

requirement. The holding in Lee--that the physical contact requirement is a contract question for conflicts-of-law purposes--does not

help Kiger. The Lee court reasoned that it was a contract question

because the dispute centered on coverage, not liability. Lee, 373

S.E.2d at 349-50. In this action against John Doe, the question is

whether John Doe is liable. It is not a contract dispute over the

extent

of coverage.

The second case Kiger relies on is Plumley v. May, 434 S.E.2d 406,

411 (W. Va. 1993). In Plumley the court held that a direct action

against an uninsured motorist carrier sounds in contract and is

governed by the ten-year limitation. The court explicitly

distinguished

John Doe actions, however. "Obviously, such a`John Doe' action is

designed to represent a plaintiff's suit against an actual

tortfeasor and

therefore sounds in tort." Id. at 410.

The threshold question in the John Doe action is liability. Cincinnati gets the same protection from the two-year personal injury

statute

of limitations when it stands in Doe's shoes as the tortfeasor

himself

would if he appeared. Kiger amended the complaint to name John

Doe and Cincinnati in September 1994, more than two years after the

June 1991 accident.

The district court also held that Kiger failed to give timely

notice

to Cincinnati after the accident. See W. Va. Code § 33-6-31(e)

(notice

must be given within sixty days of accident). Kiger relies on State

Auto. Mut. Ins. Co. v. Youler, 396 S.E.2d 737 (W. Va. 1990), to

argue

that the notice provision does not apply to this case. Because we

affirm the district court on the grounds that the John Doe action

is
barred by the two-year statute of limitations, we need not reach

the

issue of timely notice.

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III.

In sum, we agree with the district court that Kiger cannot bring a

direct action against Cincinnati because Kiger has not obtained a

judgment against John Doe. We also agree that the Postlethwait

exception does not apply. As to the John Doe action, we agree with

the district court that the action is a personal injury action

barred by

the two-year statute of limitations. Accordingly, the judgment of

the

district court is

AFFIRMED.

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