John Doe actions in Virginia are normally limited to uninsured motorist (UM) cases. That is, if the at-fault motorist does not stop at the scene and therefore is not identified, then your suit may be against John Doe. Service should then be accomplished on the uninsured motorist carrier. The uninsured motorist carrier then has a right to appear and defend the case just as if they insured John Doe. Any judgment entered will be paid by the UM carrier to the extent that they have coverage.
Tactical Issues as to John Doe
Handling these types of cases is tricky. The jury does not know who John Doe is. John Doe does not appear in the courtroom. The attorney for the UIM carrier does not state that they are representing John Doe. The jury may conclude that any money to be paid really is coming out of state coffers. If that is so, then the verdict may be depressed. The question is, how do you confront the jury about these issues.
At the very least, you should tell the jury that this is a lawsuit allowed by law to provide a means of compensation to an injured party in a car accident. They needn’t be concerned as to who John Doe is. Likewise they needn’t be concerned as to how any judgment might be paid. Likewise they should not be concerned about who will pay it. Their job is simply to address the issues raised in the instructions. If you can keep the jury focused on those issues, then they probably will not go astray.
You may want to consider telling the jury the money awarded is not coming out of and state funds. That is a true statement. It may generate an objection but so be it.
John Doe Actions Otherwise
Other types of John Doe actions normally are not allowed. However under Virginia Code § 8.01-290, such an action may be allowed. That Code section says that upon filing a civil suit, the plaintiff shall furnish to the clerk the full name and last known address of each defendant. It goes on to say that if the plaintiff cannot do that, then he shall furnish those facts that are calculated to identify that defendant with reasonable certainty. The clerk then is to note in the record all of that information. The failure to comply with the requirement of this section does not affect the validity of any judgment that might be entered. What all of that suggests is that a John Doe action may be allowed.
In any event there may be some logic in suing John Doe under this Code section. The idea being that it potentially stops the statute of limitations from running.
In addition under Virginia Code § 8.01-229.D, if the defendant has obstructed the filing, then the statute may likewise be tolled. What that Code section says is that when the filing of an action is obstructed by a defendant using any direct or indirect means to obstruct the filing of the suit, then the time of such obstruction shall not be counted as part of the period within which the action must be brought. The statute of limitations is in effect extended during that period of obstruction. All of that may work to the benefit of a plaintiff.
There is some federal case law suggesting that John Doe actions may be filed as a type of placeholder. In Hehl v. Belk, Inc., VLW 024-3-446, Judge Cullen indicated that where defendants are sued as a placeholder under circumstances where their identity is known to the defendant but not to the plaintiff and where it is likely that their identity will be determined, then suing them as a John Doe may be appropriate.
Call or contact us for a free consult. Also for more info on John Doe Actions see the Wikipedia pages. Also see the post on this site dealing with misnomers.
