delivered the opinion of the Court.
In February 1976, Doris P. Meeks was injured when rocks thrown by the wheels of a car operated by Robert A. Foley broke the windshield of the car in which she was riding. Foley did not stop, and Meeks followed him to his place of employment. Foley gave her a fictitious name, asked her not to report the incident, and assured her that he would have his insurance company contact her. Upon Meeks’s complaint, Foley was convicted of reckless driving.
In February 1977, papers in a tort action filed by Meeks were served on Foley. Government Employees Insurance Company (GEICO), Meeks’s uninsured motorists carrier, filed an answer, and trial was set for May 5, 1977. Pre-trial depositions disclosed that Foley had a standard automobile liability insurance policy with Erie Insurance Exchange (Erie) on the day of the accident. On April 22, 1977, GEICO notified Erie of the accident, the pending tort action, and the date fixed for trial and mailed Erie copies of the suit papers.
On May 2, 1977, GEICO settled Meeks’s claim and its counsel withdrew from the case. Erie refused an offer of continuance and declined to defend the tort action, and the trial court entered a default judgment against Foley in the sum of $30,000.
Meeks then brought an action against Erie to enforce Foley’s contractual rights. Meeks alleged that Erie “has wrongfully denied coverage to Robert A. Foley” and that Meeks’s tort judgment “remains outstanding and is the obligation of [Erie] to satisfy under the terms of the aforesaid policy”. In its grounds of defense, Erie admitted that Foley’s policy was in effect on the date of the accident but denied liability.
Adopting Meeks’s argument, the trial court ruled that, in light of Erie’s admission, Meeks was not required to prove the terms of the contract; that Erie bore the
At the conclusion of Erie’s evidence, Erie renewed its motion to strike because Meeks had presented no evidence. The trial court overruled the motion. Meeks moved to strike Erie’s evidence on the ground Erie had failed to prove prejudice. Meeks argued that Code § 38.1-381 as amended in 1966 requires an insurer to prove prejudice in order to deny coverage for breach of the notice and suit-papers provisions of an automobile liability insurance pol icy. The trial court agreed, sustained the motion, and, by order entered June 14, 1979, granted Meeks summary judgment in the amount of the judgment Meeks had acquired in the tort action.
The first question we consider is whether the trial court erred in its construction and application of the 1966 amendment. As Meeks acknowledged in oral argument, this question is controlled by our decision in
State Farm
v.
Porter,
Meeks urges us to “reconsider” this decision. We have done so, and, reaffirming our reasoning there, we hold that the trial court, erred in its construction and application of the 1966 amendment.
We now consider the trial court’s ruling that Erie had to bear the original burden of proof. As we noted in
Porter,
we had held in several cases (all decided before the instant case was tried) that “performance” by the insured of the obligations imposed by the policy is “a condition precedent to recovery under the policy.”
Id.
at 597,
However, Erie did not bear the
initial
burden of going forward with the evidence as the trial court ruled. It is elemental that a plaintiff must prove a
prima facie
case. In her action to enforce Foley’s rights under his contract, Meeks stood in Foley’s
For the errors committed below, we will reverse the judgment in this case. Meeks argues that, since that judgment was entered before we issued our mandate in Porter, this case should be remanded for a new trial to afford her an opportunity to prove that Foley substantially performed the notice and suit-papers requirements of his policy.
When we reverse an erroneous judgment, we are empowered to “render final judgment upon the merits whenever, in the opinion of the court, the facts before it are such as to enable the Court to attain the ends of justice”, and “[a] civil case shall not be remanded for a trial de novo except when the ends of justice require it”. Code § 8.01-681. Construing a predecessor statute, we reversed and entered final judgment when we found, “no reason to believe that, upon another trial, any new or different evidence might be introduced which ought to affect the result.”
A.C.L.R. Co.
v.
Walkup Co.,
As a practical matter, once the trial court made its ruling on burden of proof and announced its interpretation of the 1966 amendment, proof that Foley had performed the conditions precedent to recovery under his policy became superfluous. Meeks had subpoenaed Foley as a witness at trial. In opening statement, Meeks’s counsel had told the jury that Foley would testify and that his testimony would supply such proof. Accordingly, we have reason to believe that, upon another trial, Foley’s testimony might be introduced and, if believed, could affect a jury’s verdict in this case. Hence, we are of opinion the ends of justice require a new trial.
The judgment will be reversed and the case remanded for a new trial, limited to the question whether Foley substantially performed the notice and suit-papers requirements of his policy.
See Glens Falls Indemnity Co.
v.
Harris,
Reversed and remanded.
Notes
Under this Act, Code § 38.1-381(al) read in pertinent part as follows:
(al) Nor shall any such policy ... be so issued . . . unless it contains an endorsement or provision insuring the named insured and any other person responsible for the use of . . . the motor vehicle . . . notwithstanding the failure or refusal of the named insured or such other person to cooperate with the insurer under the terms of the policy; provided, however, that if such failure or refusal prejudices the insurer in the defense of an action for damages arising from the operation or use of such motor vehicle, then this endorsement or provision shall be void.
An amendment with similar effect, not applicable to Porter or the instant case, was addressed to the suit-papers provision by Acts 1980, c. 331.