Wentworth v. Fireman's Fund American Insurance

Smith, Judge.

We reverse the trial court’s judgment, which was based on its finding that Wentworth failed to exercise "due diligence” in locating a known but missing tortfeasor. The request for service by publication pursuant to Code - § 56-407.1 (d) and (e) should have been granted. For this reason, summary judgment in favor of Fireman’s Fund, Wentworth’s uninsured motorist carrier, should not have been granted; moreover, Fireman’s Fund’s correct remedy was not a summary judgment, as its motion raised a matter in abatement.

I

Under Code § 56-407.1 (e), a motorist or vehicle owner against whom a…