FA+P attorneys Katherine Londos and Nate Schnetzler recently secured a dismissal with prejudice of a complaint alleging an insurance carrier acted in bad faith by failing to pay its insured uninsured motorist benefits. The plaintiff suffered injuries as a result of a hit and run accident and obtained a default judgment against the at-fault driver in general district court. The plaintiff attempted to serve her insurance carrier with a copy of the general district court complaint but served the wrong company. The carrier refused to pay the plaintiff under-insured motorist benefits under the policy because the plaintiff failed to comply with Va. Code section 38.2-2206(F). The plaintiff then filed a complaint in the Circuit Court for the City of Norfolk alleging the carrier, an insurance agent that sold the policy, and an alleged unincorporated association breached the insurance contract and acted in bad faith.

In response to the Complaint, Londos and Schnetzler filed pleas in bar and demurrers on behalf of the carrier, the agent, and the alleged unincorporated association. The Norfolk Circuit Court sustained the demurrer without leave to amend as to the insurance agent because he was not in privity of contract with the plaintiff. The court sustained the plea in bar as to the unincorporated association because it was not the plaintiff’s insurer, and, regardless, the plaintiff did not serve the unincorporated association but rather a separate entity.

Finally, the court sustained the plea in bar as to the carrier because the plaintiff failed to serve the carrier with process in the underlying personal injury action, agreeing with Londos’ and Schnetzler’s argument that compliance with Va. Code section 38.2-2206(F) is a condition precedent to obtaining underinsured motorist benefits and that the savings statute, Va. Code section 8.01-288, does not apply to uninsured motorist claims.