Chapter 1. General Provisions as to Civil Cases.

Sec.

§ 8.01-1. How proceedings may be in actions pending when title takes effect.

Except as may be otherwise provided in § 8.01-256 of Chapter 4 (§ 8.01-228 et seq.) (Limitations of Actions), all provisions of this title shall apply to causes of action which arose prior to the effective date of any such provisions; provided, however, that the applicable law in effect on the day before the effective date of the particular provisions shall apply if in the opinion of the court any particular provision (i) may materially change the substantive rights of a party (as distinguished from the procedural aspects of the remedy) or (ii) may cause the miscarriage of justice.

(Code 1950, § 8-2; 1977, c. 617.)

REVISERS' NOTE.

This section provides some latitude to the court in applying the provisions of Title 8.01 to causes of action arising prior to October 1, 1977, the effective date of the title. However, Title 8 statutes of limitations continue to apply to such causes of action.

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Cross references. - For text of rules of court adopted by the Virginia Supreme Court, see Volume 11.

Editor's note. - The General Assembly at its regular session of 1972 directed the Virginia Code Commission, by House Joint Resolution No. 31, to make a study of Title 8 of the Code of Virginia and to report its findings in the form of a recodification of that title. In November of 1976, the Commission sent to the Governor and General Assembly its report containing a proposed revision of Title 8, along with revisers' notes and other explanatory matter, which was published as House Document No. 14 of the 1977 session. The Commission's draft of the revision of Title 8, as amended by the General Assembly, became c. 617 of the Acts of 1977. Effective October 1, 1977, it repealed Title 8 of the Code and enacted in lieu thereof a new Title 8.01.

In addition to its revision by c. 617, former Title 8 was also amended by certain other acts passed at the 1977 session, which acts took effect July 1, 1977, or earlier. As required by § 9-77.11 (now § 30-152) and also by Acts 1977, c. 617, cl. 4, the Code Commission incorporated most of these amendments into new Title 8.01. One such 1977 act, Acts 1977, c. 224, amended § 8-313, dealing with the circumstances under which a deposition may be read in a case at law. Section 8-313, along with other sections relating to depositions, was not carried over into the new Title 8.01, since it was contemplated that the entire subject would be covered by the revision of Part Four of the Rules of the Supreme Court. Therefore, the amendment to § 8-313 was not codified by the Code Commission in new Title 8.01; however, the substance of the amendment was incorporated by the Supreme Court in revised Rule 4:7. Another 1977 act, Acts 1977, c. 621, added a new § 8.01-66.1 , which, although enacted as a part of new Title 8.01, contained no effective date provision, and so took effect July 1, 1977.

A companion bill to c. 617, making conforming changes in various sections of titles of the Code other than Title 8, and transferring certain sections of Title 8 to other titles, was enacted as Acts 1977, c. 624.

The revisers' notes from the Code Commission report, House Document No. 14 of the 1977 session of the General Assembly, have been reviewed, in some instances condensed, and re-edited by the original consultants to the Code Commission in the preparation of Title 8.01, and appear under the appropriate sections herein. However, the revisers' notes have not been edited to reflect subsequent amendments to the sections under which they appear or any other provisions.

Law review. - For note highlighting major changes in Virginia civil procedure under Title 8.01, see 12 U. Rich. L. Rev. 245 (1977).

For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, "Civil Practice and Procedure," see 26 U. Rich. L. Rev. 679 (1992).

For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, "Civil Practice and Procedure," see 40 U. Rich. L. Rev. 95 (2005).

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, §§ 12.1, 12.2; 12A M.J. Limitation of Actions, § 3.

CASE NOTES

"Substantive" rights, as well as "vested" rights, are included within those interests protected from retroactive application of statutes. Shiflet v. Eller, 228 Va. 115 , 319 S.E.2d 750 (1984).

Retroactivity. - The code provisions in this title apply retroactively unless they affect substantive rights. Gaynor v. OGYN Specialists, Ltd., 51 F. Supp. 2d 718 (W.D. Va. 1999).

In an action in which a patient alleged that she suffered injuries as a result of the failure of batteries in a surgically implanted pulse generator, there was a possibility that the patient's claim against a hospital for breach of the implied warranty of merchantability was not covered by the Virginia Medical Malpractice Act because the patient's claim accrued before § 8.01-581.1 was amended to include breach of contract claims. Sanders v. Medtronic, Inc.,, 2006 U.S. Dist. LEXIS 45516 (E.D. Va. June 26, 2006).

Applied in Goodstein v. Weinberg, Buffenstein, Hirschler & Fleischer, 219 Va. 105 , 245 S.E.2d 140 (1978); Strickland v. Simpkins, 221 Va. 730 , 273 S.E.2d 539 (1981); Board of Supvrs. v. Safeco Ins. Co. of Am., 226 Va. 329 , 310 S.E.2d 445 (1983); Potomac Hosp. Corp. v. Dillon, 229 Va. 355 , 329 S.E.2d 41 (1985); Harris v. DiMattina, 250 Va. 306 , 462 S.E.2d 338 (1995).

§ 8.01-1.1. References to former sections, articles and chapters of Title 8 and other titles.

Whenever in this title any of the conditions, requirements, provisions or contents of any section, article or chapter of Title 8 or any other title of this Code as such titles existed prior to October 2, 1977, are transferred in the same or in modified form to a new section, article or chapter of this title or any other title of this Code and whenever any such former section, article or chapter is given a new number in this or any other title, all references to any such former section, article or chapter of Title 8 or such other title appearing elsewhere in this Code than in this title shall be construed to apply to the new or renumbered section, article or chapter containing such conditions, requirements, provisions or contents or portions thereof.

(1978, c. 422.)

§ 8.01-2. General definitions for this title.

As used in this title, unless the context otherwise requires, the term:

  1. "Action" and "suit" may be used interchangeably and shall include all civil proceedings whether upon claims at law, in equity, or statutory in nature and whether in circuit courts or district courts;
  2. "Decree" and "judgment" may be used interchangeably and shall include orders or awards;
  3. "Fiduciary" shall include any one or more of the following:
    1. guardian,
    2. committee,
    3. trustee,
    4. executor,
    5. administrator, and administrator with the will annexed,
    6. curator of the will of any decedent, or
    7. conservator;
  4. "Rendition of a judgment" means the time at which the judgment is signed and dated;
  5. "Person" shall include individuals, a trust, an estate, a partnership, an association, an order, a corporation, or any other legal or commercial entity;
  6. "Person under a disability" shall include:

    a. a person convicted of a felony during the period he is confined;

    b. an infant;

    c. an incapacitated person as defined in § 64.2-2000;

    d. an incapacitated ex-service person under § 64.2-2016; or

    e. any other person who, upon motion to the court by any party to an action or suit or by any person in interest, is determined to be (i) incapable of taking proper care of his person, or (ii) incapable of properly handling and managing his estate, or (iii) otherwise unable to defend his property or legal rights either because of age or temporary or permanent impairment, whether physical, mental, or both. Such impairment may also include substance abuse as defined in § 37.2-100;

  7. "Sheriff" shall include deputy sheriffs and such other persons designated in § 15.2-1603;
  8. "Summons" and "subpoena" may be used interchangeably and shall include a subpoena duces tecum for the production of documents and tangible things;
  9. "Court of equity," "law and equity court," "law and chancery court," "chancery court," "corporation court," "the chancery side," "court exercising powers in chancery," "court with equitable jurisdiction," and "receivership court" shall mean the circuit court when entertaining equitable claims;
  10. A "motion for judgment," "bill," "bill of complaint," or "bill in equity" shall mean a complaint in a civil action, as provided in the Rules of Supreme Court of Virginia;
  11. "Equity practice," "equity procedure," "chancery practice," and "chancery procedure" shall mean practice and procedure in a civil action as prescribed by this Code and the Rules of Supreme Court of Virginia.

    (1977, c. 617; 1988, c. 37; 1997, c. 921; 2005, cc. 681, 716.)

REVISERS' NOTE.

This provision defines several terms appearing throughout Title 8.01. Some of these are based on definitions utilized for specific provisions in Title 8; e.g., "person" - see former § 8-81.1. Others, such as a "person under a disability," are specially created generic terms. Some terms have definitions for a particular chapter; e.g., see § 8.01-581.1 .

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Cross references. - As to Uniform Prudent Investor Act, see § 64.2-780 et seq. As to liability of fiduciary for actions of cofiduciary, see § 64.2-1416.

Editor's note. - At the direction of the Virginia Code Commission, the references to "37.2-1000" and "37.2-1016" were changed to "64.2-2000" and "64.2-2016" to conform to the recodification of Title 64.1 by Acts 2012, c. 614, effective October 1, 2012.

The 2005 amendments. - The 2005 amendment by c. 681, effective January 1, 2006, inserted "upon claims" in subdivision 1; and added subdivisions 9 through 11.

The 2005 amendment by c. 716, effective October 1, 2005, in subdivision 6, deleted former subdivision c which read: "a drug addict or an alcoholic as defined in § 37.1-1," redesignated former subdivisions d through f as present subdivisions c through e, substituted "37.2-1000" for "37.1-134.6" in subdivision c, "37.2-1016" for "37.1-134.20" in subdivision d; and added the last sentence in subdivision e.

Law review. - For comment on rights of the convicted felon on parole, see 13 U. Rich. L. Rev. 367 (1979). For survey of Virginia law on wills, trusts, and estates for year 1979-80, see 67 Va. L. Rev. 369 (1981).

For essay "Bifurcation of Civil Trials," see 45 U. Rich. L. Rev. 1 (2010).

Research References. - Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 12 Grant of Administration. § 12.04 Administrators. Cox.

Michie's Jurisprudence. - For related discussion, see 1A M.J. Accounts and Accounting, § 10; 8A M.J. Executors and Administrators, §§ 12.1, 12.2; 10A M.J. Insane and Other Incompetent Persons, §§ 2, 27.

CASE NOTES

An "action" and a "cause of action" are quite different: "action" is defined by this section, and "cause of action" is defined as a set of operative facts which, under the substantive law, may give rise to a right of action. Because of that difference, there are no express terms in the nonsuit statute, § 8.01-380 , making it specifically applicable to condemnation proceedings. Trout v. Commonwealth Transp. Comm'r, 241 Va. 69 , 400 S.E.2d 172 (1991).

"Action." - Car purchaser and car manufacturer entered into a settlement agreement due to the purchaser's car having had numerous mechanical difficulties, which settlement resolved all issues except as to attorney's fees and costs, and thereafter, the trial court entered judgment in favor of the manufacturer, denying the purchaser's claim for attorney's fees and costs as the "successful party" in the action pursuant to § 59.1-207.14; such a denial was proper, as the action, as that term is defined in subdivision 1 of § 8.01-2 , did not end in favor of the consumer, and the fact that she maintained that she achieved the remedies that she sought did not change the conclusion that in the court action, she was not the "successful party" because the order terminating the action was in favor of the manufacturer. Chase v. DaimlerChrysler Corp., 266 Va. 544 , 587 S.E.2d 521, 2003 Va. LEXIS 116 (2003).

Insured asserted three new rights of action, two for breach of contract, and one for declaratory relief, that all arose out of the same set of operative facts as the umpire proceeding, and given the broad scope of an "action" as defined by Virginia law, which included all civil proceedings whether upon claims at law, in equity, or statutory in nature, the umpire proceeding was an "action" that was nonsuited. Thus, pursuant to subdivision E 3 of § 8.01-229 , the act of nonsuiting that "action," tolled the two year statute of limitations under § 38.2-2105 for all rights of action arising from that cause of action, including the insured's present right of action for breach of contract and declaratory relief; liberal construction of the tolling statutes to include an umpire proceeding as an action the nonsuit of which tolled her right to file the instant action for damages, was therefore appropriate. Vaughan v. First Liberty Ins. Corp.,, 2009 U.S. Dist. LEXIS 108045 (E.D. Va. Nov. 13, 2009).

The statutory definition of fiduciary is not an exclusive one. Rather, it simply specifies that certain kinds of fiduciaries are included in the term. Moreover, there is no indication in the statute or in Virginia decisional law that the General Assembly intended this section to supplant the well-settled common law pursuant to which an accounting is available to redress a breach of the fiduciary responsibility inherent in an agency relationship or in the special relationship shown to have existed between husband and wife in the instant case. McClung v. Smith, 870 F. Supp. 1384 (E.D. Va. 1994), modified, 89 F.3d 829 (4th Cir. 1996).

Son as fiduciary to father's estate. - A son clearly stands in a fiduciary relationship to his father's estate when he is appointed as his father's committee. Aetna Ins. Co. v. Byrd, 15 Bankr. 154 (Bankr. E.D. Va. 1981).

Section not applicable to criminal trial. - In trial for fraudulently obtaining an advance payment for construction work to be performed in the future, in violation of § 18.2-200.1, the defendant's contention that he was a "person under a disability" as defined by subdivision 6 a of § 8.01-2 , and as such, was entitled to an appointment of a guardian ad litem pursuant to § 8.01-9 , or a committee, pursuant to § 53.1-223, was without merit, as defendant introduced no evidence to show that he was in jail on a felony charge, and furthermore, these sections apply only to civil proceedings. Holsapple v. Commonwealth, 38 Va. App. 480, 566 S.E.2d 210, 2002 Va. App. LEXIS 376 (2002), aff'd on rehearing, 39 Va. App. 522, 574 S.E.2d 756 (2003).

Trial court properly convicted defendant of construction fraud when the victim sent notice requesting return of funds for construction not completed to defendant in prison; defendant could not show imprisonment was for a felony and could not be a "person under a disability" in any event, since the definition in this section is for civil proceedings only. Holsapple v. Commonwealth, 39 Va. App. 522, 574 S.E.2d 756, 2003 Va. App. LEXIS 76 (2003).

Judgment against incarcerated person only voidable. - Where defendant's disability, incarceration for a felony, arose under § 8.01-2 and defendant's status as an incarcerated felon was a material fact clearly known by a court that adjudicated him a habitual offender, defendant was not entitled to have a guardian ad litem appointed pursuant to subsection A of § 8.01-9 and could not collaterally attack the adjudication in a second court. Lowe v. Commonwealth, No. 0036-02-3, 2003 Va. App. LEXIS 6 (Ct. of Appeals Jan. 14, 2003).

Provisions not concerned with the capacity of a party. - Guardian ad litem provisions of Virginia law did not require dismissal of defendants, who were served with a summons and a copy of a civil complaint after their convictions but before they began serving their sentences, because the provisions were not concerned with the capacity of a party, but only with the protection of a person under a disability when sued. Particularly since the case was brought under federal-question subject matter jurisdiction, the guardian ad litem provisions of Virginia law were not binding on the court. Buchanan County v. Blankenship, 406 F. Supp. 2d 642, 2005 U.S. Dist. LEXIS 35012 (W.D. Va. 2005).

Absent showing of actual incapacity, judgment against alcoholic only voidable. - Where defendant contended that at the time of his habitual offender adjudication he was an alcoholic and a person under disability, the court's failure to appoint a guardian ad litem to represent him did not render the adjudication void and subject to collateral attack. Absent a showing of actual incapacity, a judgment against an alcoholic is voidable only, not subject to collateral attack. The record supported the trial court's determination that, at the time of his habitual offender adjudication, defendant's condition did not require the appointment of a guardian ad litem. Eagleston v. Commonwealth, 18 Va. App. 469, 445 S.E.2d 161 (1994).

"Rendition of judgment." - Debtor's former spouse was considered an insider when a trustee sought to set aside a transfer under 11 U.S.C.S. § 547 because at the time of the transfer of the property the spouse and the debtor were not legally divorced. The final divorce judgment had not been signed and entered by the court as required by § 8.01-2 , and Va. Sup. Ct. R. 1:1. Prunty v. Terry (In re Paschall), 408 Bankr. 79, 2009 U.S. Dist. LEXIS 45623 (E.D. Va. 2009), aff'd, 388 Fed. Appx. 299, 2010 U.S. App. LEXIS 14613 (4th Cir. Va. 2010).

Motion to withdraw as counsel of inmate denied. - In a civil action for securities fraud against an inmate, the district court denied counsels' motions to withdraw because they failed to make the requisite showing under Fed. R. Civ. P. 17(b) and §§ 8.01-9 and 53.1-223 since the inmate did not waive his right to assistance and mere nonpayment of fees was insufficient to justify the withdrawals. United States SEC v. Woodard,, 2014 U.S. Dist. LEXIS 35417 (E.D. Va. Feb. 19, 2014).

Applied in Loewinger v. Estate of Loewinger, 64 Va. App. 1, 763 S.E.2d 826, 2014 Va. App. LEXIS 345 (Oct. 21, 2014).

CIRCUIT COURT OPINIONS

"Disability" relates to inmate. - Inmate's claim, which arose under the Virginia Tort Claims Act, was barred by the limitations period of § 8.01-195.7 because the inmate had filed his motion for judgment approximately 21 months after his notice of claim; while the inmate was under a "disability" during his incarceration pursuant to subdivision 6 a of § 8.01-2 , he was not "incapacitated" under subdivision A 1 of § 8.01-2 29, and accordingly, the time period was not tolled. Hankins v. Commonwealth, 63 Va. Cir. 211, 2003 Va. Cir. LEXIS 168 (Lynchburg 2003).

Breach of fiduciary duty. - Demurrer as to Count IV alleging breach of a fiduciary duty was overruled as the facts alleged a cause of action sufficient to submit to a trier of fact on the issue of whether a fiduciary duty existed and if it did whether it was breached by the acts or omissions of the accounting firm because the first co-trustee, as an agent of the accounting firm, could have used the trust and confidence in which the firm was held by the second co-trustee to further the first co-trustee's fraudulent scheme through his acts as its agent; and the accounting firm would have owed a fiduciary duty not just to properly account, but to promptly advise the second co-trustee of any matter detrimental to the trust. Lawson v. Dehnert, Clarke & Co., P.C.,, 2007 Va. Cir. LEXIS 3096 (Northumberland County Nov. 28, 2007).

OPINIONS OF THE ATTORNEY GENERAL

Petition by unemancipated minors for protective orders. - A minor may seek an emergency protective order in certain situations, but a minor who has not been emancipated, however mature that individual may be, can seek a protective order only through a next friend. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

Demurrer. - A demurrer can be filed in both general district courts and circuit courts to challenge the legal sufficiency of a cause of action. See opinion of Attorney General to The Honorable Scott A. Surovell, Member, House of Delegates, No. 14-078, 2015 Va. AG LEXIS 7 (2/4/15).

§ 8.01-3. Supreme Court may prescribe rules; effective date and availability; indexed, and annotated; effect of subsequent enactments of General Assembly.

  1. The Supreme Court, subject to §§ 17.1-503 and 16.1-69.32, may, from time to time, prescribe the forms of writs and make general regulations for the practice in all courts of the Commonwealth; and may prepare a system of rules of practice and a system of pleading and the forms of process and may prepare rules of evidence to be used in all such courts. This section shall be liberally construed so as to eliminate unnecessary delays and expenses.
  2. The Supreme Court, subject to § 30-399, shall enact rules and procedures as may be necessary for implementing the requirements of Article II, Section 6-A of the Constitution of Virginia, empowering the Supreme Court to establish congressional or state legislative districts as provided for in that section.
  3. New rules and amendments to rules shall not become effective until 60 days from adoption by the Supreme Court, and shall be made available to all courts, members of the bar, and the public.
  4. The Virginia Code Commission shall publish and cause to be properly indexed and annotated the rules adopted by the Supreme Court, and all amendments thereof by the Court, and all changes made therein pursuant to subsection E.
  5. The General Assembly may, from time to time, by the enactment of a general law, modify or annul any rules adopted or amended pursuant to this section. In the case of any variance between a rule and an enactment of the General Assembly such variance shall be construed so as to give effect to such enactment.
  6. Any amendment or addition to the rules of evidence shall be adopted by the Supreme Court on or before November 15 of any year and shall become effective on July 1 of the following year unless the General Assembly modifies or annuls any such amendment or addition by enactment of a general law. Notwithstanding the foregoing, the Supreme Court, at any time, may amend the rules to conform with any enactment of the General Assembly and correct unmistakable printer's errors, misspellings, unmistakable errors to statutory cross-references, and other unmistakable errors in the rules of evidence.
  7. When any rule contained in the rules of evidence is derived from one or more sections of the Code of Virginia, the Supreme Court shall include a citation to such section or sections in the title of the rule. (Code 1950, §§ 8-1 , 8-1 .1, 8-1.2, 8-86.1; 1950, p. 3; 1952, c. 234; 1954, c. 333; 1971, Ex. Sess., c. 2; 1972, c. 856; 1977, c. 617; 1979, c. 658; 1984, c. 524; 2003, c. 280; 2012, cc. 688, 708; 2020, Sp. Sess. I, c. 56.)

REVISERS' NOTE.

Section 8.01-3 combines former law on rules promulgated by the Supreme Court.

Subsection A combines former §§ 8-1 , 8-1 .1, 8-1.2, and the first paragraph of former § 8-86.1 pertaining to the rule-making authority of the Supreme Court. Sections 17-116.4 and 16.1-69.32 impose on the Supreme Court the duty to consult with the chairmen of the House and Senate Courts of Justice Committees and with the executive committees of the judicial conferences of Virginia for the circuit and district courts.

Since Title 8 deals with civil procedure, the authority in former § 8-1.1 regarding criminal practice was deleted.

The second paragraph of former § 8-86.1 is changed in subsection B and reference is made to new § 2.1-543.1 which requires printing and distribution of rules as public documents. Clerks of courts are directed to maintain the rules in a special book. New rules and amendments are not effective until sixty days after adoption; however, to permit advance familiarization they are to be distributed upon adoption.

Former § 8-1.2 is amplified in subsection C to require that the Virginia Code Commission publish, index and annotate the Rules of the Supreme Court and all amendments thereto. Subsection D restates the power granted the General Assembly by Va. Const., Art. VI, § 5.

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Cross references. - For text of rules of court adopted by the Virginia Supreme Court, see Volume 11.

Editor's note. - Acts 2012, cc. 688 and 708, cl. 3 provides: "That the Supreme Court of Virginia has prepared and adopted Rules of Evidence in accordance with its rulemaking authority under § 8.01-3 of the Code of Virginia."

Acts 2012, cc. 688 and 708, cl. 4 provides: "That the Rules of Evidence prepared and adopted by the Supreme Court of Virginia have been submitted to and approved by the Virginia Code Commission as required by subsection E of § 8.01-3 of the Code of Virginia and by § 30-153 of the Code of Virginia."

Acts 2012, cc. 688 and 708, cl. 5 provides: "That, notwithstanding the provisions of subsection E of § 8.01-3 of the Code of Virginia and § 30-153 of the Code of Virginia, Rule 2:102 of the Rules of Evidence shall contain the following language, approved by the Supreme Court of Virginia, as its third sentence: 'Common law case authority, whether decided before or after the effective date of the Rules of Evidence, may be argued to the courts and considered in interpreting and applying the Rules of Evidence.'"

Acts 2012, cc. 688 and 708, cl. 7 provides: "That the provisions of this act shall become effective on July 1, 2012, and that the Rules of Evidence shall become effective on July 1, 2012."

Acts 2012, cc. 688 and 708, cl. 8 provides: "That the Rules of Evidence shall be applicable in all proceedings held on or after the effective date of this act in any civil action or criminal case pending on that date or commenced thereafter."

Acts 2012, cc. 688 and 708, cl. 9 provides: "That in the event of any conflict between any enactment of the General Assembly and any rule contained in the Rules of Evidence, the enactment of the General Assembly shall control."

Acts 2020, Sp. Sess. I, c. 56, cl. 10 provides: "That an emergency exists and the provisions of Enactment 9 of this act shall become effective on November 15, 2020, contingent upon the passage of an amendment to the Constitution of Virginia on the Tuesday after the first Monday in November 2020, establishing the Virginia Redistricting Commission by amending Section 6 of Article II and adding in Article II a new section numbered 6-A. If such amendment is not approved by the voters, the provisions of this act shall not become effective." The amendment passed and became effective November 15, 2020.

The 2003 amendments. - The 2003 amendment by c. 280, in subsection B, substituted "availability" for "printing and distribution; maintenance by clerks of courts," "60" for "sixty," and "made available to all courts, members of the bar, and the public" for "printed and distributed as public documents pursuant to § 17.1-318. Such rules and amendments shall be maintained in a special book kept for such purpose by the clerks of court to which they are distributed."

The 2012 amendments. - The 2012 amendment by cc. 688 and 708 are identical, and deleted the subsection headings in subsections A through D; rewrote subsection E, which formerly read: "The rules of evidence prepared by the Supreme Court shall be submitted to the Virginia Code Commission for approval as provided in § 30-153 and shall be codified upon enactment by the General Assembly"; and added subsection F.

The 2020 Sp. Sess. I amendments. - The 2020 amendment by Sp. Sess. I, c. 56, cl. 9, effective November 15, 2020, inserted subsection B and redesignated the remaining subsections accordingly; and substituted "subsection E" for "subsection D" in subsection D.

Law review. - For survey of the Virginia law on pleading and practice for the year 1961-1962, see 48 Va. L. Rev. 1523. For survey of Virginia law on evidence for the year 1969-1970, see 56 Va. L. Rev. 1325 (1970). For article on the abolition of the forms of action in Virginia, see 17 U. Rich. L. Rev. 273 (1983).

For survey on civil procedure and practice in Virginia for 1989, see 23 U. Rich. L. Rev. 511 (1989).

For essay "Bifurcation of Civil Trials," see 45 U. Rich. L. Rev. 1 (2010).

For article, "Making the Case to Avoid Entering the eBay Marketplace: A Recommended Analytical Framework for Evaluating Requests for Permanent Injunctions in Virginia," see 32 Regent U.L. Rev. 1 (2019).

Michie's Jurisprudence. - For related discussion, see 5A M.J. Counties, § 45; 7B M.J. Evidence, § 244.

CASE NOTES

Former version of this section confirmed an inherent power of the courts. Smith v. Commonwealth, 161 Va. 1112 , 172 S.E. 286 (1934) (decided under prior law).

Applied in Pulliam v. Coastal Emergency Servs. of Richmond, Inc., 257 Va. 1 , 509 S.E.2d 307 (1999); Waterman v. Halverson, 261 Va. 203 , 540 S.E.2d 867, 2001 Va. LEXIS 18 (2001); Smith v. Commonwealth, 281 Va. 464 , 706 S.E.2d 889, 2011 Va. LEXIS 59 (2011); Lahey v. Johnson, 283 Va. 225 , 720 S.E.2d 534, 2012 Va. LEXIS 22 (2012); Creamer v. Commonwealth, 64 Va. App. 185, 767 S.E.2d 226, 2015 Va. App. LEXIS 2 (2015); Holloman v. Commonwealth, 65 Va. App. 147, 775 S.E.2d 434, 2015 Va. App. LEXIS 2 45 (2015).

§ 8.01-4. District courts and circuit courts may prescribe certain rules.

The district courts and circuit courts may, from time to time, prescribe rules for their respective districts and circuits. Such rules shall be limited to those rules necessary to promote proper order and decorum and the efficient and safe use of courthouse facilities and clerks' offices. No rule of any such court shall be prescribed or enforced which is inconsistent with this statute or any other statutory provision, or the Rules of Supreme Court or contrary to the decided cases, or which has the effect of abridging substantive rights of persons before such court. Any rule of court which violates the provisions of this section shall be invalid.

The courts may prescribe certain docket control procedures which shall not abridge the substantive rights of the parties nor deprive any party the opportunity to present its position as to the merits of a case solely due to the unfamiliarity of counsel of record with any such docket control procedures. No civil matter shall be dismissed with prejudice by any district or circuit court for failure to comply with any rule created under this section.

(Code 1950, § 8-1.3; 1970, c. 366; 1977, c. 617; 1999, c. 839; 2000, c. 803; 2014, c. 348.)

REVISERS' NOTE.

Section 8.01-4 comports former § 8-1.3 with the 1973 district and circuit court reorganization acts. The phrase in former § 8-1.3 "the orderly management of court dockets" was omitted because it might lead to promulgation of local rules which would create lack of uniformity in procedure.

Former § 8-4.3 (Order for medical examination. . .) has been deleted since in substance it has been incorporated in Rule 4:10.

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The 1999 amendment, effective July 1, 2000, rewrote this section, which formerly read: "The district courts and circuit courts may, from time to time, prescribe for their respective districts and circuits such rules as may be reasonably appropriate to promote proper order and decorum, and the convenient and efficient use of courthouses and clerks' offices. No rule of any such court shall be prescribed or enforced which is inconsistent with any statutory provision, or the Rules of the Supreme Court, or contrary to the decided cases, or which has the effect of abridging substantive rights of persons before such Court."

The 2000 amendments. - The 2000 amendment by c. 803, in the first paragraph, substituted "limited to those rules necessary" for "strictly limited to only those rules absolutely necessary" in the second sentence and inserted "or the Rules of Supreme Court" in the third sentence; and added the second paragraph.

The 2014 amendments. - The 2014 amendment by c. 348 in the second paragraph added the last sentence.

Law review. - For survey of Virginia law on practice and pleading for the year 1969-1970, see 56 Va. L. Rev. 1500 (1970). For survey of Virginia law on practice and pleading for the year 1970-1971, see 57 Va. L. Rev. 1561 (1971).

For annual survey article, "Civil Practice and Procedure," see 44 U. Rich. L. Rev. 269 (2009).

Michie's Jurisprudence. - For related discussion, see 5A M.J. Evidence, §§ 3, 13.

CASE NOTES

Rule may not add to statutes regulating practice of law by judges. - The General Assembly expressly limited its grant of rule-making power by excluding rules "inconsistent with any statutory provision." The General Assembly has seen fit to adopt statutes regulating the practice of law by judges of courts not of record. If rule adopted by judge adds to these regulations, the rule does not fall within his statutory rule-making power. Davis v. Sexton, 211 Va. 410 , 177 S.E.2d 524 (1970) (decided under prior law).

Custom not sufficient evidence. - Trial court did not err, in the creditor's promissory note action against the debtor, in denying the creditor's post-verdict motion for attorney fees despite the fact that a promissory note provision would permit the creditor to recover attorney fees; the debtor had a state constitutional and statutory right to have the issue of awarding attorney fees submitted to the jury, the jury considered the issue, and the jury returned a verdict with its monetary award, and, thus, the creditor was not entitled to claim that a custom existed that the issue of attorney fees was decided in a post-verdict motion, especially since he did not offer evidence to support that claim. Lee v. Mulford, 269 Va. 562 , 611 S.E.2d 349, 2005 Va. LEXIS 40 (2005).

The practice of allowing any circuit judge to handle any probation violation does not violate § 17.1-503 as it pertains to this section. Gurley v. Commonwealth, 34 Va. App. 166, 538 S.E.2d 361, 2000 Va. App. LEXIS 836 (2000).

Circuit court rule on homestead exemptions. - Where Chapter 7 debtors timely delivered properly executed homestead deeds with fees paid to the county setting the property apart as exempt pursuant to §§ 34-6 and 34-17, but the debtors did not comply with a local county rule until the time period under § 34-17 had expired, the county rule did not render the claimed exemption void because enforcement of the local rule would have been inconsistent with the statutory provisions for claiming exemptions under Title 34 of the Virginia Code and would also have abridged the substantive rights of the debtors. In re Alley, 354 Bankr. 783, 2006 Bankr. LEXIS 2976 (Bankr. W.D. Va. 2006).

Violation of scheduling order. - Trial court did not err in finding that the wife violated the scheduling order because her sworn answer regarding the value of the five excluded properties was that the fair market values were unknown, and had to be determined by appraisal; her unknown answer and representation that the values would be determined by appraisal, which the husband fairly relied upon, were not formally updated until after the trial began; and, by the time the husband was aware of her position on the values of the excluded properties, it was too late for him to review and act on that information. Moore v. Moore, No. 0315-20-4, 2020 Va. App. LEXIS 260 (Oct. 27, 2020).

CIRCUIT COURT OPINIONS

Discretion in controlling court's docket. - Court continued the wife's jury trial pending resolution of the husband's appeals in two separate case as the husband's notice of appeal, as it pertained to the case in which the wife's jury trial was pending, was effectively interlocutory in nature, and had the husband properly effectuated an interlocutory appeal, the court would certainly be permitted to enter an order staying the proceedings; thus, under this statute, the court could stay the matter pending the outcome of the appeal in the sound exercise of its discretion in controlling its docket. Reese v. Priority Imps. Battlefield, Inc., 97 Va. Cir. 427, 2015 Va. Cir. LEXIS 263 (Chesapeake Sept. 17, 2015).

OPINIONS OF THE ATTORNEY GENERAL

Judge's authority may not be delegated. - While the chief judge and, collectively, the judges of a judicial circuit, do possess legal authority to establish rules regarding courthouse security, such power may not be delegated to a circuit court administrator. The chief judge and, collectively, the circuit judges, possess the legal authority to establish a general rule that cellular telephones are permitted in the courthouse. Nonetheless, the sheriff possesses the legal authority to take action in any specific instance in which a cellular telephone causes a disturbance, or otherwise endangers public safety within the courthouse. See opinion of Attorney General to the Honorable William O. Watson, Sheriff, City of Portsmouth, 12-065, 2013 Va. AG LEXIS 48 (7/12/13).

Courthouse security. - While judges and sheriffs should work together to resolve any issues or concerns about courthouse security, judges retain rule-making authority over courthouse security, and the sheriff is responsible for enforcing the rules and responding to any security threats or disturbances. See opinion of Attorney General to The Honorable Paul W. Higgs, Sheriff, City of Fredericksburg, 13-096, 2013 Va. AG LEXIS 93 (12/3/3).

§ 8.01-4.1. How jurisdiction determined when proceeding is on penal bond.

When a proceeding before a court is on a penal bond, with condition for the payment of money, the jurisdiction shall be determined as if the undertaking to pay such money had been without a penalty. And when jurisdiction depends on the amount of a judgment, if it be on such a bond, the jurisdiction shall be determined by the sum, payment whereof will discharge the judgment.

(Code 1950, § 8-3; 1977, c. 617.)

CASE NOTES

The claim that a bond sued on does not constitute a contract, but simply provides for a penalty, is unavailing to oust a court of equity of jurisdiction. Kabler v. Spencer, 114 Va. 589 , 77 S.E. 504 (1913) (decided under prior law).

§ 8.01-4.2. Who may execute bond for obtaining writ or order.

A bond for obtaining any writ or order may be executed by any person with sufficient surety, though neither be a party to the case.

(Code 1950, § 8-4; 1977, c. 617.)

Cross references. - As to the giving of bond under Chapter 20 ( § 8.01-533 et seq.) of this title, see § 8.01-556 .

Michie's Jurisprudence. - For related discussion, see 2A M.J. Attachment and Garnishment, § 66.

§ 8.01-4.3. Unsworn declarations under penalty of perjury; penalty.

If a matter in any judicial proceeding or administrative hearing is required or permitted to be established by a sworn written declaration, verification, certificate, statement, oath, or affidavit, such matter may, with like force and effect, be evidenced, by the unsworn written declaration, certificate, verification, or statement, which is subscribed by the maker as true under penalty of perjury, and dated, in substantially the following form:

"I declare (or certify, verify or state) under penalty of perjury that the foregoing is true and correct."

This section shall not apply to a deposition, an oath of office, or an oath required to be taken before a specified official other than a notary public.

(2005, c. 423.)

Cross references. - As to business records as evidence, see § 8.01-390.3 .

Law review. - For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, "Civil Practice and Procedure," see 40 U. Rich. L. Rev. 95 (2005).

For survey of Virginia criminal law and procedure for the year 2004-2005, see 40 U. Rich. L. Rev. 197 (2005).

Chapter 2. Parties.

General Provisions.

Special Provisions.

Death or Change of Parties.

Writ of Scire Facias Abolished.

Article 1. General Provisions.

§ 8.01-5. Effect of nonjoinder or misjoinder; limitation on joinder of insurance company.

  1. No action or suit shall abate or be defeated by the nonjoinder or misjoinder of parties, plaintiff or defendant, but whenever such nonjoinder or misjoinder shall be made to appear by affidavit or otherwise, new parties may be added and parties misjoined may be dropped by order of the court at any time as the ends of justice may require.
  2. Nothing in this section shall be construed to permit the joinder of any insurance company on account of the issuance to any party to a cause of any policy or contract of liability insurance, or on account of the issuance by any such company of any policy or contract of liability insurance for the benefit of or that will inure to the benefit of any party to any cause.

    (Code 1950, § 8-96; 1954, c. 333; 1977, c. 617.)

REVISERS' NOTE.

Section 8.01-5 carries forward the policy of former § 8-96 by providing that parties may be added to or dropped from an action without prejudice until all parties necessary for the just disposition of the case are before the court. See also Rules 2:15, 3:9A and 3:14 which provide for the addition of parties to an action.

Omitted from § 8.01-5 are those parts of former § 8-96 which exempt a party from being added if the action could not be maintained against him for specified reasons - i.e. a new party who was neither a resident of the Commonwealth nor subject to service of process therein, or where the action was barred by the statute of limitation or under the provisions of Chapter 1 of Title 11 (Contracts - General Provisions). The substance of these provisions is better implemented under Rule 3:9A.

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Cross references. - For rules of the Virginia Supreme Court generally, see Volume 11.

For rule of court permitting a defendant to plead a cross-claim against one or more other defendants, see Rule 3:10.

For rule of court as to joinder of parties, see Rule 3:12.

For rule of court as to third-party practice, see Rule 3:13.

For rules of court as to intervention and substitution of parties, see Rules 3:14, 3:17.

As to joining joint obligors upon contract, see § 8.01-30 .

Law review. - For annual survey article, "Civil Practice and Procedure," see 46 U. Rich. L. Rev. 9 (2011).

For annual survey article, "Wills, Trusts, and Estates," see 46 U. Rich. L. Rev. 243 (2011).

For essay, "Nonsuit in Virginia Civil Trials," see 48 U. Rich. L. Rev. 265 (2013).

Research References. - Bryson on Virginia Civil Procedure (Matthew Bender). Chapter 5. Parties. § 5.01 Misnomer, et seq. Bryson.

Enforcement of Judgments and Liens in Virginia (Matthew Bender). Chapter 4. Garnishment. § 4.4 Parties to the Garnishment Proceedings. Rendleman.

Friend's Virginia Pleading and Practice (Matthew Bender). Chapter 5 Parties. § 5.02 Necessary Parties. Friend.

Harrison on Wills and Administration for Virginia and West Virginia (Matthew Bender). Chapter 23 Assets of the Estate. § 23.10 Damages for Wrongful Death. Cox

Virginia Forms (Matthew Bender). No. 2-313. Motion to Dismiss on Ground of Misjoinder of Party.

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abatement, Survival and Revival, § 14; 1B M.J. Amendments, §§ 20, 23, 65; 2A M.J. Assignments, §§ 39; 4A M.J. Conspiracy, § 12; 5A M.J. Creditors' Suits, § 29; 7A M.J. Equity, § 95; 8A M.J. Executions, § 73; 10B M.J. Insurance, § 156; 14A M.J. Parties, § 20; 18 M.J. Torts, § 5.

Editor's note. - Most of the cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

The Virginia statutes are liberal in their provisions for adding new parties in cases of nonjoinder. McDaniel v. North Carolina Pulp Co., 198 Va. 612 , 95 S.E.2d 201 (1956), overruled on other grounds, see Harmon v. Sadjadi, 639 S.E.2d 294, 2007 Va. LEXIS 1 (2007).

The purpose of a former version of this section was to extend the power of the court by further providing that in any suit or action when it appeared there was a nonjoinder of necessary parties, then the court, in the exercise of its discretion, could compel the joinder of such parties, and not to end in one suit or action the rights of a plaintiff and the liabilities of those who otherwise might be defendants in future litigation. Hogan v. Miller, 156 Va. 166 , 157 S.E. 540 (1931).

Nonjoinder defined. - Nonjoinder means that a party has been omitted who ought to be joined with an existing party, not substituted for an existing party. Bardach Iron & Steel Co. v. Tenenbaum, 136 Va. 163 , 118 S.E. 502 (1923).

This section relates to nonjoinder and misjoinder, and not to substitution of one sole plaintiff for another sole plaintiff. Bardach Iron & Steel Co. v. Tenenbaum, 136 Va. 163 , 118 S.E. 502 (1923).

The word "may" means the same as "shall" in a statute of this kind which is in furtherance of justice. Lee v. Mutual Reserve Fund Life Ass'n, 97 Va. 160 , 33 S.E. 556 (1899).

This is purely a procedural statute and in no wise changes the nature of tort liability. The effect of the statute as to nonjoinder is that the omission of a defendant necessary for the maintenance of the plaintiff's action can be corrected by the method provided. Hogan v. Miller, 156 Va. 166 , 157 S.E. 540 (1931).

Nonjoinder not grounds for dismissal. - The alleged nonjoinder of parties plaintiff was not a proper ground for dismissing action. Indeed, if the defendants had desired to pursue the matter, they and the trial court should have followed the procedures set forth in the statute and the rule for determining whether the purported partners were necessary parties. Fox v. Deese, 234 Va. 412 , 362 S.E.2d 699 (1987).

Misjoinder of parties should be raised by a motion to drop the improperly joined parties, not by a demurrer. Powers v. Cherin, 249 Va. 33 , 452 S.E.2d 666 (1995).

Ward's suit in own name not subject to amendment. - Under § 37.1-141, [now § 37.2-1026] any action on behalf of a ward must be brought by the ward's guardian and this section did not permit amendment of a pleading to comply with the statute where a ward had attempted to bring suit in her own name. Cook v. Radford Community Hosp., Inc., 260 Va. 443 , 536 S.E.2d 906 (2000).

Rule that cotrespassers jointly and severally liable not changed. - The settled rule in Virginia, which has not been disturbed by the enactment of this section, is that cotrespassers are jointly and severally liable, and the party injured may sue all of them jointly, or two or more of them jointly or one of them severally, as he may see proper; and § 8.01-443 fortifies this conclusion. Hogan v. Miller, 156 Va. 166 , 157 S.E. 540 (1931).

Joinder of co-administrator. - This section § 8.01-5 permitted the joinder of a second co-administrator to a wrongful death action under the Virginia Wrongful Death Act, § 8.01-50 , because the first co-administrator was already a party plaintiff; the claims in the suit did not change as a result of the joinder; and the first co-administrator's initial filing, without the second co-administrator, of the wrongful death claim tolled the statute of limitations for that claim under subsection B of § 8.01-244 . Addison v. Jurgelsky, 281 Va. 205 , 704 S.E.2d 402, 2011 Va. LEXIS 16 (2011).

Insurer may be added as party defendant at its own request. - This section is undoubtedly for the benefit of the insurer and does not foreclose the right to be added as a party defendant at its request where it is clear that the insurer has a definite interest in the action. Matthews v. Allstate Ins. Co., 194 F. Supp. 459 (E.D. Va. 1961).

Action of plaintiffs in making insurer a party defendant was premature where liability of the insured had not been determined. Laws v. Spain, 51 F.R.D. 307 (E.D. Va. 1970).

Even if a state court plaintiff wanted to name a defendant's liability insurer as an additional defendant in an effort to have the duty to indemnify decision made in the same case, such state court plaintiff would be precluded from doing so because, in Virginia, an injured person must reduce his claim to judgment before bringing an action against the tortfeasor's liability insurer; moreover, § 8.01-5 , prohibits the joinder of an insurance company on account of the issuance of an insurance policy to or for the benefit of any party to any cause. Builders Mut. Ins. Co. v. Futura Group, L.L.C.,, 2011 U.S. Dist. LEXIS 45137 (E.D. Va. Apr. 21, 2011).

Joinder of an insurance company. - As Virginia law required a determination of the facts and reduction of a claim to judgment before the party alleging injury brought an action against an insurer, the legal analysis necessary for the duty to indemnify determination could not take place until after the ultimate factual findings were made in the state court suit. Builders Mut. Ins. Co. v. Futura Group, L.L.C.,, 2011 U.S. Dist. LEXIS 45137 (E.D. Va. Apr. 21, 2011).

Section inapplicable to insurer prosecuting contribution suit between tort-feasors. - This section has no application to a situation where the sole real party in interest is an insurance company prosecuting a contribution suit between tort-feasors. Laws v. Spain, 51 F.R.D. 307 (E.D. Va. 1970).

Limited liability company is necessary party in derivative action. - Limited liability company was a necessary party in a derivative action brought by one of the members against the other members, pursuant to Va. Sup. Ct. R. 3:12. Siska Trust v. Milestone Dev., 282 Va. 169 , 715 S.E.2d 21, 2011 Va. LEXIS 180 (2011).

Election of cause of action. - In an action for malicious prosecution against a corporation and a special officer employed by it, when it developed that plaintiff's causes of action were not the same as to both defendants, and that they could not properly be sued jointly as to two torts alleged to have been committed against plaintiff, plaintiff should have been required to elect which cause of action he would pursue. Norfolk Union Bus Term., Inc. v. Sheldon, 188 Va. 288 , 49 S.E.2d 338 (1948).

Applied in Travelers Ins. Co. v. Riggs, 671 F.2d 810 (4th Cir. 1982); Sullivan v. Sullivan, 33 Va. App. 743, 536 S.E.2d 925, 2000 Va. App. LEXIS 750 (2000); Bartee v. Vitocruz, 288 Va. 106 , 758 S.E.2d 549 (2014).

CIRCUIT COURT OPINIONS

Amendments within discretion of court. - Amendments to add or substitute a proper party lie within the discretion of the court under § 8.01-5 ; under Va. Sup. Ct. R. 1:8 no amendments shall be made to any pleading after it is filed save by leave of court. Gearing v. Every Citizen Has Opportunities, Inc., 59 Va. Cir. 41, 2002 Va. Cir. LEXIS 118 (Loudoun County 2002).

Nonjoinder not grounds for dismissal. - Where the trial court lacked subject matter jurisdiction to grant the motion for summary judgment due to the injured party's failure to join the necessary parties, the trial court was permitted under § 8.01-5 and former Va. Sup. Ct. R. 3:14 [see now R. 3:16] to add the necessary parties rather than dismiss the case. Hester v. State Farm Mut. Auto. Ins. Co., 58 Va. Cir. 289, 2002 Va. Cir. LEXIS 148 (Chesterfield County 2002).

Because a final order had not been entered on the employee's motion for a declaratory judgment, the defect of missing parties could be cured through proper procedural remedies; therefore, the matter did not need to be dismissed. Hester v. State Farm Mut. Auto. Ins. Co., 58 Va. Cir. 289, 2002 Va. Cir. LEXIS 148 (Chesterfield County 2002).

Motion to drop misjoined party. - Based on the discretionary language of § 8.01-5 , the fact that the claims asserted arose from the same incident and involved the same issue and the danger of the jury's misuse of the evidence presented by one plaintiff to reward another was slight, and any danger could be addressed in an appropriate jury instruction, a motion to drop a misjoined party was denied. Deane v. Mady, 72 Va. Cir. 304, 2006 Va. Cir. LEXIS 309 (Charlottesville 2006).

Two libel plaintiffs' claims against the same defendant were misjoined. - Political candidate and his business associate were two separate individuals asserting separate claims of libel against rival candidates in one lawsuit. This represented an improper union of parties and causes of action in one case, and the court ordered the two plaintiffs to elect which of them should be dropped from the lawsuit. Borgenicht v. Norment, 75 Va. Cir. 382, 2008 Va. Cir. LEXIS 269 (Richmond Aug. 19, 2008).

Joinder permitted. - Joinder of the estates claims against the pharmaceutical manufacturers and the health-care providers was permitted because the right of action against each defendant rested upon the allegation that the decedent's death resulted from the negligence of each and thus, the claims arose out of the same transaction or occurrence. Wright v. Eli Lilly & Co., 66 Va. Cir. 195, 2004 Va. Cir. LEXIS 316 (Portsmouth 2004).

Individuals were necessary parties, and full justice could not be done without their presence, because they all had material interests in the litigation, which could be affected depending on the outcome of the plea in bar; while a CEO failed to serve the motion on the individuals, proceeding on the plea in bar without ensuring they had formal notice of the litigation and the opportunity to respond would constitute an injustice and could result in multiple litigation and inconsistent results. MartianCraft, LLC v. Richter, 98 Va. Cir. 269, 2018 Va. Cir. LEXIS 59 (Richmond Mar. 28, 2018).

Party found not to be necessary party. - When a parent brought a declaratory judgment action challenging the validity of a provision in an enrollment contract between the parent and a school, which entitled the school to collect attorneys' fees and costs from the parent without limitation in any action arising out of or related to the contract, the parent's spouse and cosignatory to the contract was not a necessary party to the dispute because the parent was seeking only to determine the parent's rights and the spouse's rights were not ripe for adjudication. McIntosh v. Flint Hill Sch., 100 Va. Cir. 32, 2018 Va. Cir. LEXIS 321 (Fairfax County Sept. 17, 2018).

CIRCUIT COURT OPINIONS

Motion to join not timely. - Company's offer in its post-trial brief to move to join parent corporation, which was the entity that was supposed to receive the payment of money under a business deal the company negotiated with the corporation, or to join the subsidiary corporation, which was the entity the company was to merge into on or before the business deal closed, was too late to meet the end of justice requirement, and, thus, the offer to join either or both entities was denied. Am. View Networks, Inc. v. Heartland Capital Corp., 68 Va. Cir. 13, 2005 Va. Cir. LEXIS 29 (Fairfax County 2005).

Motion to dismiss corporation from action granted. - In two actions involving contract and tort claims over a home repair, the trial court granted the corporation's motion to dismiss it as a defendant in the second action because only a contractor sued the homeowners, the corporation and the contractor denied that the corporation ever had dealings with the homeowners, the homeowners did not plead sufficient specific facts showing that they engaged the corporation to fix their roof, and they alleged no reason for a subterfuge or fraud. Jenkins Servs., LLC v. Martin, 95 Va. Cir. 5, 2016 Va. Cir. LEXIS 241 (Westmoreland County Feb. 5, 2016).

Dismissal. - Property owner's action had to be dismissed for lack of necessary parties, because signatories to a deeded right-of-way were all necessary parties due to the nature of the relief requested, injunctive relief seeking the removal of a locked gate; it was not proper to exercise subject matter jurisdiction without all of the necessary parties because there would be further litigation touching the matter in dispute, and the owner did not address how joinder was not feasible. Hodge v. Lyon Ball Prop., LLC, 94 Va. Cir. 407, 2016 Va. Cir. LEXIS 163 (Nelson County Oct. 19, 2016).

Because third-party defendant's counterclaim alleged that the city breached the parties' contract, whereas the remainder of the litigation after the court's ruling that the city was entitled to sovereign immunity and dismissal of the city's third-party complaints did not involve the contract between the city and the third-party defendant, the court dismissed the third-party defendant's counterclaim to the city's third-party complaint as the third-party defendant's breach of contract counterclaim was more properly adjudicated independent of the current litigation. Pridemore v. Hryniewich, 96 Va. Cir. 418, 2017 Va. Cir. LEXIS 176 (Norfolk Sept. 29, 2017).

Although none of the third-party defendants moved to dismiss the city's third-party complaints in light of the court's holding that the city was entitled to sovereign immunity, the court found that such action was necessary in order to meet the ends of justice. Pridemore v. Hryniewich, 96 Va. Cir. 418, 2017 Va. Cir. LEXIS 176 (Norfolk Sept. 29, 2017).

Motion to dimiss denied. - Rule allows a party to plead alternative facts and theories of recovery against alternative parties, provided that such claims arise out of the same transaction or occurrence, and if there is a failure of the condition of same transaction or occurrence, the two claims cannot be made in the same lawsuit, but may be separated; the statute on misjoinder does not require dismissal of one or both of the claims, it only directs that the court may order separate trials on the misjoined counts, and the court declined to dismiss the complaint for misjoinder of parties or actions. Balwanz v. Amole, 97 Va. Cir. 391, 2013 Va. Cir. LEXIS 224 (Westmoreland County Feb. 5, 2013).

§ 8.01-6. Amending pleading; relation back to original pleading.

A misnomer in any pleading may, on the motion of any party, and on affidavit of the right name, be amended by inserting the right name. An amendment changing the party against whom a claim is asserted, whether to correct a misnomer or otherwise, relates back to the date of the original pleading if (i) the claim asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading, (ii) within the limitations period prescribed for commencing the action against the party to be brought in by the amendment, that party or its agent received notice of the institution of the action, (iii) that party will not be prejudiced in maintaining a defense on the merits, and (iv) that party knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against that party.

(Code 1950, § 8-97; 1954, c. 333; 1977, c. 617; 1990, c. 80; 1996, c. 693; 2004, cc. 141, 326.)

REVISERS' NOTE.

Section 8.01-276 obviates the need for reference to the former use of pleas in abatement for misnomer. Otherwise, § 8.01-6 does not change the substance of former § 8-97.

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Cross references. - As to indictments, see §§ 19.2-216 through 19.2-238.

The 2004 amendments. - The 2004 amendments by cc. 141 and 326 are identical, and in the last sentence, inserted "or its agent" in clause (ii), inserted the clause (iii) and (iv) designations, substituted "party" for "he" in clause (iii), substituted "that party" for "he" and "that party" for "him" in clause (iv), and made minor stylistic changes.

Law review. - For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abatement, Survival and Revival, § 14; 1B M.J. Amendments, §§ 2, 19, 21, 64; 14A M.J. Parties, § 19; 14B M.J. Pleading, § 61.

Editor's note. - Some of the cases cited below were decided under corresponding provisions of former law.

CASE NOTES

Amendment to cure defect in signature on complaint does not relate back. - Because of the strong public policy considerations underlying § 8.01-271.1 , Va. Sup. Ct. R. 1:4 and 1A:4(2), the Supreme Court of Virginia construes them to require that a lawyer who files a pleading in a Virginia tribunal must append his personal, handwritten signature to a pleading; thus, a complaint signed on behalf of a licensed Virginia attorney by an attorney not licensed in Virginia was a nullity and as none of the relation back situations for amending pleadings applied, the defect could not be cured by providing the appropriate signature. Shipe v. Hunter, 280 Va. 480 , 699 S.E.2d 519, 2010 Va. LEXIS 231 (2010).

Misnomer arises. when the right person is incorrectly named, not where the wrong defendant is named. Swann v. Marks, 252 Va. 181 , 476 S.E.2d 170 (1996).

The personal representative of a decedent and the decedent's "estate" are two separate entities; the personal representative is a living individual while the "estate" is a collection of property. Thus, one cannot be substituted for another under the concept of correcting a misnomer. Swann v. Marks, 252 Va. 181 , 476 S.E.2d 170 (1996).

This section was not applicable where a ward had attempted to bring suit in her own name as this was not a case in which the right person, that being the ward's guardian, was incorrectly named but one in which the wrong person, that being the ward, was named. Cook v. Radford Community Hosp., Inc., 260 Va. 443 , 536 S.E.2d 906 (2000).

Trial court properly denied, for lack of standing, a bankruptcy debtor's motions to amend the named plaintiff in her pleadings to her bankruptcy trustee, due to a misnomer, or to be substituted as the proper plaintiff because not only did she fail to properly schedule her personal injury cause of action with the requisite specificity and affirmatively represented that no such existed in the area where the trustee would expect to find any such causes of action, there was no misnomer inasmuch as the debtor and the trustee were not the same person, and since the debtor lacked standing to bring the suit, the trustee could not be substituted as the proper plaintiff. Ricketts v. Strange, 293 Va. 101 , 796 S.E.2d 182, 2017 Va. LEXIS 5 (Feb. 16, 2017).

A misnomer is a mistake in name but not person. Rockwell v. Allman, 211 Va. 560 , 179 S.E.2d 471 (1971).

An amendment is permitted where the right party is before court, although under a wrong name. Rockwell v. Allman, 211 Va. 560 , 179 S.E.2d 471 (1971).

But where the wrong person is named, it cannot be corrected by labelling it a misnomer. Rockwell v. Allman, 211 Va. 560 , 179 S.E.2d 471 (1971).

No correction allowed for material error. - When the mistake in the name of a corporation, whether plaintiff or defendant, is slight, and it clearly appears what corporation is meant - or as it is sometimes expressed, where the pleading incorrectly names a corporation, but correctly describes it - the mistake is amendable. But where the error is so material (especially in the name of the defendant) that no such corporation exists, it is fatal at the trial; and the former version of this section does not obviate the result stated. Leckie v. Seal, 161 Va. 215 , 170 S.E. 844 (1933); Baldwin v. Norton Hotel, Inc., 163 Va. 76 , 175 S.E. 751 (1934).

Naming locality instead of Board of Supervisors was not a misnomer. - First landowner's bill of complaint challenging a board's issuance of a conditional use permit was dismissed with prejudice, as she failed to name the board as a party to the action, as required by subsection F of § 15.2-2285, and the terms "locality" and "board of supervisors" were not synonymous or interchangeable. Further, she could not employ the statutory remedy provided by § 8.01-6 for correcting a misnomer. Miller v. Highland County, 274 Va. 355 , 650 S.E.2d 532, 2007 Va. LEXIS 119 (2007).

Language naming the decedent's estate, administrator. - Trial court erred in finding that a decedent's administrator was the defendant in a personal injury action as, although a motion to amend the judgment under subdivision B 2 b of § 8.01-229 was proper, language naming the decedent's estate, administrator, in the caption was ambiguous when the motion to amend the judgment was read as a whole; the wrong defendant was named, § 8.01-6 did not apply, and the misjoinder could not be legitimized by substituting the correct party. Estate of James v. Peyton, 277 Va. 443 , 674 S.E.2d 864, 2009 Va. LEXIS 60 (2009)(decided prior to enactment of § 8.01-6.3 )

When amendment to cure misnomer allowed notwithstanding statute of limitations. - If the right party is before the court although under a wrong name, an amendment to cure a misnomer will be allowed, notwithstanding the running of the statute of limitations, provided there is no change in the cause of action originally stated. Jacobson v. Southern Biscuit Co., 198 Va. 813 , 97 S.E.2d 1 (1957).

Omission of "incorporated." - Where a corporation defendant is misdescribed simply by the omission of the word incorporated, and there is no other corporation of the name stated, the plaintiff should be permitted to insert the omitted word in the proper place in his declaration. Arminius Chem. Co. v. White's Adm'x, 112 Va. 250 , 71 S.E. 637 (1911).

An action against a corporation in its former name cannot be defeated by showing that it had changed its name without any change of its membership. Welfley v. Shenandoah Iron, Lumber, Mining & Mfg. Co., 83 Va. 768 , 3 S.E. 376 (1887).

CIRCUIT COURT OPINIONS

A misnomer is a mistake in name but not in person. Shadid v. Estabrooks, 61 Va. Cir. 724, 2002 Va. Cir. LEXIS 315 (Fairfax County 2002).

Section inapplicable where wrong party is sued. - Section § 8.01-6 was inapplicable where there was no evidence that a corporation doing business under a trade name was the right defendant; in filing a second suit, the injured party took the position that the correct defendant was a condominium unit owner association, not a corporation, and there was no evidence that the corporate name was merely an incorrect name for the condominium association. Gearing v. Every Citizen Has Opportunities, Inc., 59 Va. Cir. 41, 2002 Va. Cir. LEXIS 118 (Loudoun County 2002).

In a motor vehicle accident case, defendant's plea in bar was sustained as plaintiff's failure to name the correct defendant was a mistake in identification and was not a misnomer, but a misjoinder, because, when plaintiff named the driver's estranged ex-husband as the defendant, that was not a mistake in the spelling or an inversion of the driver's name as it simply was not her name; and the ex-husband was never the intended party to be sued; further, because the amended complaint changed the party to be sued and the driver was not served nor named a party until after the applicable two-year statute of limitation period had expired, plaintiff was barred from bringing her claim under the relation back provision. Hendrix v. Legovini,, 2017 Va. Cir. LEXIS 340 (Fairfax County Oct. 31, 2017).

Pure Jane Doe case. - In the instance of what the court calls a pure Jane Doe, the statute categorically cannot apply; this is so because neither the Rules of the Supreme Court of Virginia nor the legislature contemplate Jane Doe pleadings, aside from the narrow exception for uninsured motorists. Frazier v. Red Robin Int'l, Inc., 99 Va. Cir. 214, 2018 Va. Cir. LEXIS 100 (Fairfax County June 1, 2018).

As section only applies to amendments to pleadings. - If § 8.01-6 were to apply when a change in parties occurs, then the "relation back" provision would come into effect if the requirements of subparts (i) and (ii) of the statute were met; however, § 8.01-6 by its terms only applies to an amendment to a pleading. Gearing v. Every Citizen Has Opportunities, Inc., 59 Va. Cir. 41, 2002 Va. Cir. LEXIS 118 (Loudoun County 2002).

Amendment to add Commonwealth of Virginia as proper party allowed. - Where an appellate mandate determined that the waiver of sovereign immunity under the Virginia Tort Claims Act did not apply to a state agency, amendment was not precluded to add the Commonwealth of Virginia as the proper party defendant and the amendment to correct the misnomer related back to the original pleading; the claim remained the same, there was no prejudice to the Commonwealth, plaintiff provided proper statutory notice of the claim, and thus the Commonwealth knew or should have known that it was the intended defendant in the action. Carter v. Rector & Visitors of the Univ. of Va., 65 Va. Cir. 326, 2004 Va. Cir. LEXIS 293 (Charlottesville 2004).

Adding agency as new party is not a misnomer. - In a medical malpractice case, the patient's naming an agency as a defendant in place of the Commonwealth was not a misnomer; rather, the Commonwealth and its agencies were distinct, separate parties. Because the pleadings were amended to add a new party rather than to correct a misnomer, § 8.01-6 did not apply. Carter v. Commonwealth, 67 Va. Cir. 308, 2005 Va. Cir. LEXIS 164 (Charlottesville Apr. 28, 2005).

Substitution of Commonwealth for Virginia Department of Transportation allowed. - In an action brought under the Virginia Tort Claims Act, plaintiff's motion to amend her complaint to substitute the Commonwealth as a defendant for the Virginia Department of Transportation was granted, as it was clear that the claims against the Department and the Commonwealth were the same. Hobson v. Francisco, 65 Va. Cir. 255, 2004 Va. Cir. LEXIS 273 (Roanoke County 2004).

Addition of new party under facts not pleaded in original bill of complaint. - Because a patient's amended action for negligent hiring and retention and lack of informed consent sought to add a new party under facts that were not pleaded in the original bill of complaint, pursuant to § 8.01-6 , the patient's action was dismissed as to those counts. Nickson v. Rice, 69 Va. Cir. 516, 2004 Va. Cir. LEXIS 365 (Chesterfield County 2004).

Corporation with similar name. - Defendant condominium association's plea in bar was sustained where plaintiff injured party nonsuited her action against a corporation with a similar name; the nonsuit caused there to be no pleadings the injured party could amend to add the correct party and to cause the action to relate back to the date the first action was filed, which meant that the action was barred by the two-year statute of limitations for personal injuries. Gearing v. Every Citizen Has Opportunities, Inc., 59 Va. Cir. 41, 2002 Va. Cir. LEXIS 118 (Loudoun County 2002).

Company's fictitious name. - Because a customer used a company's fictitious name in the original pleadings and then non-suited the action, the statute of limitations in § 8.01-246 was not tolled; therefore, the customer could not amend the action under §§ 8.01-6 and 8.01-6.2 to add the company's real name. Harvey v. Mech. Air Servs., 69 Va. Cir. 214, 2005 Va. Cir. LEXIS 184 (Norfolk 2005).

Failure to file fictitious name certificate. - Because the correct operating entity of a hotel never filed the fictitious name certificate required by § 59.1-69, and because there was no way that the plaintiff could ever have learned the correct name, the entity's failure amounted to concealment that estopped it from claiming that service on its registered agent was untimely under this section. Roper v. Fcgmi, Inc., 72 Va. Cir. 135, 2007 Va. Cir. LEXIS 6 (Fairfax County 2007).

Name fragment amendment. - Amendment from a name fragment can relate back to the filing date of that fragment if the plaintiff can prove that she knew the defendant's identity, but not her name, and can prove that the defendant meets all the statutory requirements; a name fragment can be deemed a mistake for the purposes of that statute. Frazier v. Red Robin Int'l, Inc., 99 Va. Cir. 214, 2018 Va. Cir. LEXIS 100 (Fairfax County June 1, 2018).

Where a plaintiff may know the identity of a defendant, but does not have the correct name, if the plaintiff can prove knowledge of the defendant, the fact that the defendant was named using a wrong or incomplete name is a circumstance contemplated by the statute; the wrong or incomplete name can be corrected, and the correction will relate back to the date of the original filing if the plaintiff can meet the four statutory requirements. Frazier v. Red Robin Int'l, Inc., 99 Va. Cir. 214, 2018 Va. Cir. LEXIS 100 (Fairfax County June 1, 2018).

Name fragment, such as "Kathy (last name unknown)" for "Kat Clavelli" in this particular case, could be a mistake from inadequate knowledge if the plaintiff can prove that she knew the identity of the defendant, but just did not know her name until later; if plaintiff could prove that these two names were the same person, and she could prove the four prongs of the statute, then her amended name could relate back, and an evidentiary hearing was required. Frazier v. Red Robin Int'l, Inc., 99 Va. Cir. 214, 2018 Va. Cir. LEXIS 100 (Fairfax County June 1, 2018).

Defect in signature. - Failure of plaintiff's complaint to include the signature of at least one of the two attorneys listed on the complaint could not be cured through an amendment of the complaint that would relate back to the date of the original complaint because §§ 8.01-6 through 8.01-6.2 did not authorize an amendment to relate back when the sole purpose was to correct a defect in signature. Lipoli v. Stutesman, 85 Va. Cir. 156, 2012 Va. Cir. LEXIS 170 (Norfolk Aug. 1, 2012).

Four-year delay in filing motion for leave to amend not inordinate under the circumstances. - In a dental malpractice case, although almost four years elapsed between plaintiff's injury and the filing of a motion to amend the complaint, plaintiff's counsel would not be penalized for trying to conduct as much investigation as possible without discovery or for attempting to settle the claim before the dentists were served. As the amount of time spent in negotiations and discovery was not inordinate for a medical malpractice case, plaintiff acted with sufficient diligence to justify allowing the amendment. Hart v. Savage, 72 Va. Cir. 41, 2006 Va. Cir. LEXIS 319 (Norfolk 2006).

Amendment not allowed where proposed defendants did not receive. - Under Va. Sup. Ct. R. 3:2(a), a civil action is "instituted" by filing a complaint in the clerk's office. Letters to defendants and their insurers threatening suit and proposing a settlement did not suffice to give the notice of filing required by § 8.01-6 to allow an amendment to the pleadings that would relate back to the original filing. Hart v. Savage, 72 Va. Cir. 41, 2006 Va. Cir. LEXIS 319 (Norfolk 2006).

Motion to dismiss based on misnomer denied. - Where defendant alleged that plaintiff's amended motion for judgment which corrected a misnomer relating to defendant did not relate to the original motion, defendant's motion to dismiss was denied, as defendant had received notice of the institution of the action, and should have known that but for the mistake concerning the identity of the proper party that the action would have been brought against him. Clark v. Nuss, 57 Va. Cir. 401, 2002 Va. Cir. LEXIS 224 (Norfolk 2002).

Motion to amend named party granted. - Trial court granted the claimant's motion to amend the named party; the claimant's amended pleading met the four-part test pursuant to § 8.01-6 for an amendment changing a party's name to relate back to the original pleading date, and, thus, the statute of limitations did not bar the claimant's amended pleading. Roper v. FCGMI, Inc., 72 Va. Cir. 135, 2006 Va. Cir. LEXIS 212 (Fairfax County 2006).

Patient met the requirements for correcting a misnomer, to correctly identify the owner/operator of a hospital, under § 8.01-6 , in that notice sent by the patient would have arrived at the insurer's office before the expiration of the statute of limitation. Crain v. Chesapeake Gen. Hosp., 79 Va. Cir. 150, 2009 Va. Cir. LEXIS 235 (Chesapeake July 14, 2009).

Motion to amend untimely. - Judgment creditor's claim against a corporation was dismissed because although acting in good faith, the judgment creditor either served only the wrong entity or failed by timely amendment to bring the proper entity before the circuit court for adjudication of its claim; it would be error to permit amendment at the late stage of trial without affording the corporation at least a continuance and the right to prepare further to meet the amendment, including with the reopening of discovery. Westwood Bldgs. Ltd. P'ship v. Grayson, 96 Va. Cir. 312, 2017 Va. Cir. LEXIS 166 (Fairfax County Sept. 8, 2017).

Change of name included. - Because § 8.01-6 expanded the amendments included under the statute, specifically the change of name, § 8.01-6 applied; however, the second issue was whether the defendant driver received notice of the institution of the action within the limitation period proscribed for commencing the action. While the driver was present in the courtroom, plaintiff's counsel decided not to call her or put on any evidence at that time and thus, there was no evidence to the contrary of what was represented by the defense and plaintiff's counsel did not contest defense counsel's proffers regarding notice to the driver. Snow v. Walker, 80 Va. Cir. 194, 2010 Va. Cir. LEXIS 34 (Albemarle County Feb. 25, 2010).

No misnomer found. - Where a police officer was not named in an original warrant in debt against a county, but was later added by a new warrant in debt, the case did not involve a misnomer, and the officer had no notice of the original suit; thus, the second warrant in debt adding the officer was untimely and did not relate back to the original pleading. Nguyen v. Long, 60 Va. Cir. 168, 2002 Va. Cir. LEXIS 283 (Fairfax County 2002).

Because the decedent's personal representative and the decedent's estate were two separate entities, one cannot be substituted for another under the concept of correcting a misnomer. George v. Aylward, 62 Va. Cir. 457, 2003 Va. Cir. LEXIS 288 (Prince William County 2003).

Original suit seeking damages from a traffic accident filed against a decedent who died before the suit was filed and the original motion for judgment were legal nullities, did not toll the statute of limitations, and subdivision B 2 b of § 8.01-229 was inapplicable to the case since the motorist suffered a voluntary nonsuit; since the substitution of a personal representative for a deceased defendant was not to have been construed to fall within the correction of a misnomer under § 8.01-6 , the "relation back" provision of that section did not apply, so the applicable statute of limitation was found at subdivision B 2 a of § 8.01-229 , pursuant to which, the statute of limitations applied approximately 3 1/2 months before the motorist refiled the action and thus the case was dismissed as untimely filed. Antoine v. Reeves, 63 Va. Cir. 585, 2004 Va. Cir. LEXIS 92 (Norfolk 2004).

Defendant's motion for summary judgment was granted, which asserted it was not the proper defendant, because plaintiff's negligence complaint suing "Jeff Rorer, d/b/a Mostly Sofa's" when it should have sued "Faith, Inc." was more than a misnomer and was not amendable under § 8.01-6 , because the businesses were separate entities. Amendment was further precluded because neither the originally named defendant, nor the correct defendant, was served within the applicable statute of limitations period, thus, it did not matter that "Mostly Sofa's" never filed a certificate identifying itself as a fictitious name. Bryant v. Rorer, 66 Va. Cir. 226, 2004 Va. Cir. LEXIS 353 (Roanoke Nov. 19, 2004).

Because a plaintiff's counsel knew the difference between a senior center and a management company with a similar name, but inadvertently named and described the management company as a defendant, it was not a misnomer that could be corrected by an amendment under § 8.01-6 and/or § 8.01-6.2 . Berndtson v. Sunrise Senior Living, Inc., 70 Va. Cir. 345, 2006 Va. Cir. LEXIS 55 (Fairfax County 2006).

Wife could not be substituted for a husband who was incorrectly named as party defendant in a motion for judgment in plaintiff's personal injury action; no misnomer had occurred because the right person was not incorrectly named, and there could be no relation back because it was not shown that the wife received notice of the action within the two-year limitation period of § 8.01-243 . Babbington v. Neumann, 70 Va. Cir. 9, 2005 Va. Cir. LEXIS 304 (Alexandria 2005).

Judgment creditor's claim against a corporation was dismissed because the lessor would not avail itself of the relief offered by correction of a misnomer; substitution of a Florida entity for its identically-named Virginia counterpart was not the correction of a misnomer. Westwood Bldgs. Ltd. P'ship v. Grayson, 96 Va. Cir. 312, 2017 Va. Cir. LEXIS 166 (Fairfax County Sept. 8, 2017).

Misnomer provision applied to medical malpractice claim under Tort Claims Act. - Section 8.01-6 , which governs misnomer, applied to the patient's malpractice claim under the Virginia Tort Claims Act; even though the amended pleading under § 8.01-6 related back to date of the original pleading, it was not equivalent to tolling a statute of limitations. Miller v. Univ. of Va. Med. Ctr., 58 Va. Cir. 240, 2002 Va. Cir. LEXIS 5 (Albemarle County 2002).

Motion to correct clerical error set aside. - Where the victim filed an action naming the son's father as a defendant, but where the victim's motion to correct a clerical error to change the name of the defendant to the son was granted, the son's motion to set aside the order was granted, as the facts did not constitute a clerical error correctable under this section; the conditions for relation back had not been satisfied. Shadid v. Estabrooks, 61 Va. Cir. 724, 2002 Va. Cir. LEXIS 315 (Fairfax County 2002).

Relation back proper for mistake in defendant's identity. - Relation back was proper, as the claim asserted in the amended complaint arose out of the same automobile accident upon which the initial complaint was based; defendant two resided with her mother, defendant one, at the time the initial complaint was served and received notice of the institution of this action and retained counsel to notify her if a complaint was filed against her, and she knew that but for a mistake regarding the identity of the proper defendant, the action would have been brought against her. Cooper v. Royall, 99 Va. Cir. 460, 2018 Va. Cir. LEXIS 333 (Chesapeake Aug. 22, 2018).

§ 8.01-6.1. Amendment of pleading changing or adding a claim or defense; relation back.

Subject to any other applicable provisions of law, an amendment of a pleading changing or adding a claim or defense against a party relates back to the date of the original pleadings for purposes of the statute of limitations if the court finds (i) the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth in the original pleading, (ii) the amending party was reasonably diligent in asserting the amended claim or defense, and (iii) parties opposing the amendment will not be substantially prejudiced in litigating on the merits as a result of the timing of the amendment. In connection with such an amendment, the trial court may grant a continuance or other relief to protect the parties. This section shall not apply to eminent domain or mechanics' lien claims or defenses.

(1996, c. 693.)

Law review. - For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

For review of judicial decisions of significance in Virginia affecting construction law, see 43 U. Rich. L. Rev. 107 (2008).

CASE NOTES

Amended pleadings. - Court rejected chassis manufacturer's argument that because it did not receive notice of a Lemon Law claim within the limitations period, an amended complaint should not relate back because it failed to recognize that the "limitations period" referred to in the relation back context included the allowable time for service of process. Under Virginia law, the statute of limitations was tolled upon the filing of the lawsuit, not upon the time of service on the defendant, and the manufacturer was served both within the Fed. R. Civ. P. 4(m) service deadline and the Virginia one-year deadline, VA. R. Civ. P. 3:5(e). Hoffman v. Daimler Trucks N. Am., LLC, 940 F. Supp. 2d 347, 2013 U.S. Dist. LEXIS 53118 (W.D. Va. Apr. 12, 2013).

Where RV buyer filed his original complaint against the manufacturer in state court just a few days before expiration of the 18-month statute of limitations under § 59.1-207.11 (the Lemon law) but amended his complaint to change the named defendant to the chassis manufacturer, the amendment was not barred by the statute of limitations because it related back under Fed. R. Civ. P. 15(c)(1)(A) under the pertinent state statute, § 8.01-6.1 , as the amendment consisted of the same conduct, transaction, or occurrence as in the original pleading; because the buyer's less than two-month delay in filing the amended claim was not sufficient grounds for finding a lack of reasonable diligence; and because the chassis manufacturer would not be prejudiced in defending the Lemon Law claim on the merits, as it received notice of the Lemon Law claim at the exact same time it received notice of a warranty claim. Hoffman v. Daimler Trucks N. Am., LLC, 940 F. Supp. 2d 347, 2013 U.S. Dist. LEXIS 53118 (W.D. Va. Apr. 12, 2013).

CIRCUIT COURT OPINIONS

Statute applies to amended pleadings only. - Despite a fourth-party plaintiff general-contractor's assertion, § 8.01-6.1 did not apply to its action, as: (1) said statute allowed relation back for the purpose of the statute of limitations, not a statute of repose; and (2) the general contractor's situation was not one where it amended its pleading against the subcontractors, but instead, filed an entirely new pleading. Bd. of Dirs. of Birdneck Villas Condo. Ass'n v. Birdneck Villas, LLC, 73 Va. Cir. 175, 2007 Va. Cir. LEXIS 77 (Virginia Beach 2007).

Although a patient asserted that the patient's new medical malpractice claims related back to the date of the patient's original complaint, which the patient nonsuited, the new claims were not amendments to that complaint, but, instead, were claims asserted for the first time in the new complaint. Because the new claims were not amendments to the original complaint, they did not relate back under Va. Code Ann. § 8.01-6.1 . Lawton-Gunter v. Meyer, 88 Va. Cir. 327, 2014 Va. Cir. LEXIS 73 (Roanoke June 12, 2014).

Amended pleadings. - Amendments were permitted which would relate back to the original pleadings and would not be subject to a plea of the statute of limitations. Ritchie v. Norton Cmty. Hosp., 55 Va. Cir. 96, 2001 Va. Cir. LEXIS 244 (Wise County 2001).

Because plaintiff's amended complaint for punitive damages related back to the same incident in which defendant injured plaintiff, his complaint for punitive damages was not a new cause of action, and § 8.01-6.1 was inapplicable. Weaver v. Franklin,, 2002 Va. Cir. LEXIS 273 (Newport News Sept. 18, 2002).

Amended counterclaim that included alleged defamatory statements that were not included in the original counterclaim did not violate the statute of limitations since they arose out of the same conduct set forth in the original pleadings and thus, related back to the original pleadings. Stanley v. Storck, 61 Va. Cir. 515, 2003 Va. Cir. LEXIS 135 (Norfolk 2003).

Plaintiff's motion for leave to file third amended complaint was granted because that complaint, including its new breach of contract claim and its punitive damages claim, arose out of the conduct, transaction, or occurrence of the personal injury cause of action set forth in the original pleading; plaintiff was reasonably diligent in asserting the third amended complaint; defendants would not be substantially prejudiced in litigating on the merits as a result of the timing of the amendment, as discovery had not been completed and the time period was not all that long; and the third amended complaint related back to the time of filing of the original pleading, and was not time-barred by the applicable two-year statute of limitations. Rauchfuss v. Peninsula Radiological Assocs., 94 Va. Cir. 8, 2016 Va. Cir. LEXIS 60 (Newport News Apr. 28, 2016).

Relation back found. - Repleaded count of a husband's amended cross-bill related back to the conduct, transaction, or occurrence set forth in the original count of his cross-bill, and thus, the repleaded count was not barred by the statute of limitations, because both counts alleged one written contract and specific incidents were changed; "change" includes delete. Kelsoe v. Kelsoe,, 2004 Va. Cir. LEXIS 392 (Essex County Sept. 9, 2004).

Court found that: (1) the amended complaint alleged the same set of operative facts, including a claimed struggle, that gave rise to the differing rights of action for wrongful death and civil conspiracy asserted; (2) the transaction or occurrence of a possible struggle was asserted in the 2005 motion for judgment, and it was the greater specificity of facts gained from subsequent discovery that allowed the administrator to assert a wrongful death claim based on the alleged assault, and thus, the administrator was reasonably diligent in determining what claims she might have and asserting the additional claim upon more information; and (3) although the alleged co-conspirator contended that the possibility of insurance coverage constituted actual, substantial prejudice, the court was not convinced that the timeliness of the amended motion for judgment substantially prejudiced the alleged co-conspirator; therefore, the administrator satisfied all of the requirements of § 8.01-6.1 , amending her complaint such that the rights of action filed on November 16, 2007, related back to the cause of action she initially asserted in her 2005 motion for judgment. Thus, the administrator properly recommenced her suit within the six-month period after nonsuiting the action and the administrator's recovery was not barred by the two-year statute of limitations under §§ 8.01-244 and 8.01-248 . Clark v. Britt, 79 Va. Cir. 60, 2009 Va. Cir. LEXIS 72 (Fairfax Apr. 24, 2009).

Negligent infliction of emotional harm claim in an employee's amended complaint related back to the date of the original complaint under § 8.01-6.1 , and was not time-barred because the original complaint contained an intentional infliction claim, and thus the amendment was not a new substantive cause of action; the employee was reasonably diligent in asserting his claim and no prejudice was shown by allowing the amendment. Ballard v. Hanover Research Council,, 2010 Va. Cir. LEXIS 110 (Fairfax Sept. 24, 2010).

Conditions in § 8.01-6.1 were satisfied to allow an amended pleading relating back to the date of the original pleading so that the victim could plead an employee's course and scope of employment because respondeat superior was not a new cause of action for statute of limitations purposes, but a legal theory of liability. Shaver v. HPB Corp., 84 Va. Cir. 382, 2012 Va. Cir. LEXIS 134 (Charlottesville Mar. 19, 2012).

Patient's motion to amend her complaint to allow a count of negligent retention of a doctor by his employer was granted because the claim arose out of the conduct, transaction, or occurrence set forth in the original complaint, which was the negligence and proximate cause of the patient's injuries by the doctor's alleged negligent acts or omissions. Butler v. Anglero, 95 Va. Cir. 77, 2017 Va. Cir. LEXIS 8 (Chesapeake Jan. 12, 2017).

Despite plaintiff's failure to obtain leave to amend before serving the amended complaint, it related back; the amended complaint provided further factual allegations about the original defendants named in the complaint, plaintiffs were reasonably diligent in asserting the amended claim, and the original defendants would not be prejudiced with the amendment's timing. Freeman v. Curtis Bay Med. Waste Servs. Va., L.L.C., 102 Va. Cir. 245, 2019 Va. Cir. LEXIS 263 (Petersburg June 21, 2019).

No relation back. - Plaintiff's proposed amendment to add a personal injury claim to a complaint alleging negligent infliction of emotional distress (NIED), intentional infliction of emotional distress (IIED), and property damage did not relate back to the original complaint under § 8.01-6.1 , because it failed two of the three inquiries under the Vines v. Branch , 244 Va. 185 (1992), test; while the evidence used to prove the original allegations of IIED and NIED would support a new claim of personal injury as personal injury was a required element of both those claims, the recovery under the original complaint for IIED or NIED would not bar recovery of personal injuries, and the measure of damages would be different. Swanson v. Woods Serv. Ctr., Inc., 71 Va. Cir. 281, 2006 Va. Cir. LEXIS 240 (Roanoke County 2006).

Supplier could not amend its complaint to add a subcontractor as a defendant on a bond claim since: (1) the claim was time-barred under § 43-17; (2) the relation back provision in § 8.01-6.1 did not apply to mechanic's liens; and (3) when a party sought enforcement of a bond posted under § 43-71, the substantive and procedural requirements of the mechanic's lien statutes applied. Johnson Controls v. Norair Eng'g Corp., 86 Va. Cir. 138, 2013 Va. Cir. LEXIS 3 (Fairfax County Jan. 10, 2013).

Husband's fraud claim was barred by the statute of limitations and by his own lack of diligence because it was pleaded after the two year statute of limitation on a fraud claim would have run; also, any "relate back" claim would be barred by the wife's lack of due diligence in delaying another four years to assert the claim. Kelsoe v. Kelsoe,, 2003 Va. Cir. LEXIS 387 (Essex County July 16, 2003).

Wife's motion for summary judgment was granted because a husband's breach of contract claim was barred by the statutes of limitations, and his delay in filing the claim did not constitute reasonable diligence in asserting an amended claim; the husband's breach of contract claim did not relate back to the original conduct, transaction, or occurrence set forth in the wife's original pleadings. Kelsoe v. Kelsoe,, 2003 Va. Cir. LEXIS 387 (Essex County July 16, 2003).

Since the ex-husband's Petition for a Rule To Show Cause was neither a pending petition for modification under § 20-112, nor a petition to terminate under subsection A of § 20-109, his Petition To Terminate Spousal Support could not reach back to the date of his filing of the Rule as the date of termination for support. Munro v. Munro, 105 Va. Cir. 268, 2020 Va. Cir. LEXIS 93 (Fairfax County July 2, 2020).

Res judicata. - Judicial doctrine underlying the rule of res judicata, to protect parties from harassing successive suits on matters previously litigated or which could have been litigated, simply does not fit the conduct, transaction or occurrence language in the statute used to determine whether the amended claim arose out of the conduct, transaction or occurrence set forth in the prior pleading. Kelsoe v. Kelsoe,, 2004 Va. Cir. LEXIS 392 (Essex County Sept. 9, 2004).

Motion to amend untimely. - Although the misrepresentations alleged by the correspondence between plaintiff and defendant dealt with the denial of an insurance claim and involved the same conduct, transaction or occurrence, plaintiff was not reasonably diligent in asserting the claim of constructive fraud (plaintiff waited two years and four months to file leave to amend, and waited nearly 18 months from filing and nearly five years from the date the alleged misrepresentations were made to assert the claim of constructive fraud), and defendant would be substantially prejudiced if the claim were to relate back; thus, the motion for leave to amend was not timely and the claim was barred by the two-year statute of limitations for fraud. Hoover & Strong v. Travelers Ins. Co., 66 Va. Cir. 34, 2004 Va. Cir. LEXIS 233 (Chesterfield County 2004).

§ 8.01-6.2. Amendment of pleading; relation back to original pleading; confusion in trade name.

  1. A pleading which states a claim against a party whose trade name or corporate name is substantially similar to the trade name or corporate name of another entity may be amended at any time by inserting the correct party's name, if such party or its agent had actual notice of the claim prior to the expiration of the statute of limitations for filing the claim.
  2. In the event that suit is filed against the estate of a decedent, and filed within the applicable statute of limitations, naming the proper name of estate of the deceased and service is effected or attempted on an individual or individuals as executor, administrator or other officers of the estate, such filing tolls the statute of limitations for said claim in the event the executor, administrator or other officers of the estate are unable to legally receive service at the time service was attempted, or defend suit because their authority as executor, administrator or other officer of the estate excludes defending said actions, or their duties as executor, administrator or other officer of the estate had expired at the time of service or during the time of defending said action.

    (1999, c. 686.)

Law review. - For article, "Civil Practice and Procedure," see 45 U. Rich. L. Rev. 183 (2010). For article, "Medical Malpractice Law," see 45 U. Rich. L. Rev. 319 (2010).

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, § 311; 12A M.J. Limitation of Actions, § 27.

CASE NOTES

Action barred by statute of limitations. - Because nothing in the record suggested that a personal representative, who had been appointed before the expiration of the statute of limitations, was unable to legally receive service, had service been attempted before the expiration of the statute of limitations, subsection B of § 8.01-6.2 did not apply to toll plaintiff's negligence action filed against an estate. Idoux v. Estate of Helou, 279 Va. 548 , 691 S.E.2d 773, 2010 Va. LEXIS 56 (2010).

CIRCUIT COURT OPINIONS

Action barred by statute of limitations. - Defendant condominium association's plea in bar was sustained where plaintiff injured party nonsuited her action against a corporation with a similar name; the nonsuit caused there to be no pleadings the injured party could amend to add the correct party and to cause the action to relate back to the date the first action was filed, which meant that the action was barred by the two-year statute of limitations for personal injuries. Gearing v. Every Citizen Has Opportunities, Inc., 59 Va. Cir. 41, 2002 Va. Cir. LEXIS 118 (Loudoun County 2002).

Because a customer used a company's fictitious name in the original pleadings and then non-suited the action, the statute of limitations in § 8.01-246 was not tolled; therefore, the customer could not amend the action under §§ 8.01-6 and 8.01-6.2 to add the company's real name. Harvey v. Mech. Air Servs., 69 Va. Cir. 214, 2005 Va. Cir. LEXIS 184 (Norfolk 2005).

Amendment of party name. - Court allowed an amendment, pursuant to § 8.01-6.2 , when a patient incorrectly identified the owner/operator of a hospital because the substituted party had some relation of interest to the original party, there was no change in the cause of action, and no prejudice was shown. Crain v. Chesapeake Gen. Hosp., 79 Va. Cir. 150, 2009 Va. Cir. LEXIS 235 (Chesapeake July 14, 2009).

Misnomer not found. - Because a plaintiff's counsel knew the difference between a senior center and a management company with a similar name, but inadvertently named and described the management company as a defendant, it was not a misnomer that could be corrected by an amendment under § 8.01-6 and/or § 8.01-6.2 . Berndtson v. Sunrise Senior Living, Inc., 70 Va. Cir. 345, 2006 Va. Cir. LEXIS 55 (Fairfax County 2006).

§ 8.01-6.3. Actions or suits against fiduciaries; style of the case; amendment of pleading.

  1. In any action or suit required to be prosecuted or defended by or in the name of a fiduciary, including a personal representative, trustee, conservator, or guardian, the style of the case in regard to the fiduciary shall be substantially in the following form: "(Name of fiduciary), (type of fiduciary relationship), (Name of the subject of the fiduciary relationship)."
  2. Any pleading filed that does not conform to the requirements of subsection A but otherwise identifies the proper parties shall be amended on the motion of any party or by the court on its own motion. Such amendment relates back to the date of the original pleading.

    (2010, c. 437.)

Editor's note. - Acts 2010, c. 437, cl. 2, provides: "That the provisions of this act shall apply to any action or suit pending as of the effective date of this act [July 1, 2010]."

Law review. - For article, "Medical Malpractice Law," see 45 U. Rich. L. Rev. 319 (2010).

CASE NOTES

Failure to name proper party fatal to action. - Trial court did not err in denying the wife's motion to amend her complaint to name the personal representative of her deceased husband's estate as the proper defendant and dismissing the action as time-barred because the wife failed to comply with this section, by naming the personal representative in the caption or anywhere in the complaint and thus, she did not qualify for the saving doctrine afforded, and was time-barred from a new and proper action. Ray v. Ready, 296 Va. 553 , 822 S.E.2d 181, 2018 Va. LEXIS 197 (Dec. 20, 2018).

Applied in Forest v. Forest,, 2013 Va. App. LEXIS 80 (Mar. 12, 2013).

CIRCUIT COURT OPINIONS

Substantial compliance. - Trial court properly denied a trust's motion for reconsideration of the denial of its motion for a continuance because its motion came on the eve of trial, the trust had approximately 157 days to hire counsel from the time the previous counsel withdrew, and one of the plaintiff's witnesses had traveled from Florida to testify, the plaintiff substantially complied with the statutory provisions by naming the trust and the trustee in the original caption, and there was no evidence that the person responding on behalf of the trust was a trustee, could act on behalf of the trust, or was a licensed Virginia attorney. Panone v. Jenkins Family Trust, 105 Va. Cir. 288, 2020 Va. Cir. LEXIS 91 (Orange County July 3, 2020).

§ 8.01-7. When court may add new parties to suit.

In any case in which full justice cannot be done, or the whole controversy ended, without the presence of new parties to the suit, the court, by order, may direct the clerk to issue the proper process against such new parties, and, upon the maturing of the case as to them, proceed to make such orders or decrees as would have been proper if the new parties had been made parties at the commencement of the suit.

(Code 1950, § 8-129; 1977, c. 617.)

REVISERS' NOTE.

Section 8.01-7 expands former § 8-129 to encompass actions at law as well as suits in equity. The provision gives the court power to add new parties sua sponte, while a motion is required to initiate other joinder of party provisions.

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Michie's Jurisprudence. - For related discussion, see 7A M.J. Equity, § 95.

CASE NOTES

Amendment proper. - In an inmate's case brought against an officer based on sexual misconduct, a trial court should have allowed an amendment to the pleadings to allow the inclusion of the Commonwealth of Virginia as a necessary party to an action filed under the Virginia Tort Claims Act, §§ 8.01-195.1 through 8.01-195.9 . Billups v. Carter, 268 Va. 701 , 604 S.E.2d 414, 2004 Va. LEXIS 139 (2004).

CIRCUIT COURT OPINIONS

Necessary parties. - Individuals were necessary parties, and full justice could not be done without their presence, because they all had material interests in the litigation, which could be affected depending on the outcome of the plea in bar; while a CEO failed to serve the motion on the individuals, proceeding on the plea in bar without ensuring they had formal notice of the litigation and the opportunity to respond would constitute an injustice and could result in multiple litigation and inconsistent results. MartianCraft, LLC v. Richter, 98 Va. Cir. 269, 2018 Va. Cir. LEXIS 59 (Richmond Mar. 28, 2018).

Article 2. Special Provisions.

§ 8.01-8. How minors may sue.

Any minor entitled to sue may do so by his next friend. Either or both parents may sue on behalf of a minor as his next friend.

(Code 1950, § 8-87; 1977, c. 617; 1998, c. 402.)

Cross references. - As to appointment of guardian ad litem for person under a disability, see § 8.01-9 .

As to appointment of guardian ad litem in suit for sale of lands of a person under a disability, see § 8.01-73 .

Law review. - For note discussing a state-incarcerated felon's capacity to sue under 42 U.S.C. § 1983 in federal courts despite prohibitive state statutes, see 30 Wash. & Lee L. Rev. 329 (1973).

For an article, "Legal Issues Involving Children," see 32 U. Rich. L. Rev. 1345 (1998).

For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Assault and Battery, § 21; 12B M.J. Marriage, § 15.

CASE NOTES

I. DECISIONS UNDER CURRENT LAW.

Suit on behalf of child could not be brought by parents in own name. - Trial court properly dismissed a suit, as violative of § 8.01-8 , brought by a minor child's parents in their own name as next friend of the child. Herndon v. St. Mary's Hosp., Inc., 266 Va. 472 , 587 S.E.2d 567, 2003 Va. LEXIS 94 (2003).

Parents may initiate action as child's next friend. - First sentence of § 8.01-8 authorizes a minor child to bring an action by his next friend, and the second sentence, when considered together with the first sentence, does not plainly manifest an intent to authorize parents to bring a child's action in the parents' own name, but merely specifies that either or both parents may act as next friend on behalf of their minor child; thus, the 1998 amendment to § 8.01-8 reflects the general assembly's intent to clarify the fact that either or both parents may initiate a single action as their child's next friend. Herndon v. St. Mary's Hosp., Inc., 266 Va. 472 , 587 S.E.2d 567, 2003 Va. LEXIS 94 (2003).

Mother of a handicapped child had standing to bring a claim, which challenged the handicap accessibility in the City of Richmond, in both an independent and representational capacity under the Americans with Disabilities Act, 42 U.S.C.S. § 12131 et seq., had representational standing under § 504 of the Rehabilitation Act, 29 U.S.C.S. § 794 and the Virginians with Disabilities Act of 1985, in that she was suing as her minor child's next friend, and alleged an injury in fact in that she sought prospective relief that would enable her and her son to attend events at schools city-wide in addition to those listed in the complaint. Bacon v. City of Richmond, 386 F. Supp. 2d 700, 2005 U.S. Dist. LEXIS 21376 (E.D. Va. 2005).

Self-representing parents may not litigate their minor children's claims. - Non-attorney parents generally may not litigate the claims of their minor children in federal court. Myers v. Loudoun County Pub. Schs, 418 F.3d 395, 2005 U.S. App. LEXIS 16722 (4th Cir. 2005).

Father, a non-attorney, was not authorized to litigate pro se the claim of his minor children that subsection C of § 22.1-202, which provided for daily, voluntary recitation of the Pledge of Allegiance in Virginia's public schools, violated the Establishment Clause. Myers v. Loudoun County Pub. Schs, 418 F.3d 395, 2005 U.S. App. LEXIS 16722 (4th Cir. 2005).

II. DECISIONS UNDER PRIOR LAW.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

Next friend need not be formally appointed. - Any person may bring a suit in the name of an infant as its next friend and ordinarily the court will recognize him as such next friend, and take cognizance of the case as properly brought and prosecuted. If it appears to the court that the suit is not for the benefit of the infant or that the person named as next friend is not a suitable person for the purpose, the court may dismiss the suit without prejudice, or assign another person to prosecute it as next friend of the infant, and the court may, if it think fit, direct an inquiry by a commissioner to ascertain whether the person prosecuting it as next friend is a fit person for the purpose. Wilson v. Smith, 63 Va. (22 Gratt.) 493 (1872).

According to the procedure in this jurisdiction, suits may be commenced and prosecuted by the next friend of an infant without previous appointment or formal order of admission. In such case the admission and approval by the court of the person acting as next friend is implied unless expressly disallowed. The courts are disposed to regard convenience and substance rather than form in mere matters of procedure. Jackson v. Counts, 106 Va. 7 , 54 S.E. 870 (1906).

The practice in Virginia is for such suits to be instituted in the name of the infant by one of the parents or other near relative without formal appointment. If the suit or action proceeds without objection, it is a recognition by the court that the infant is a party to the proceeding. Womble v. Gunter, 198 Va. 522 , 95 S.E.2d 213 (1956)commented on in 14 Wash. & Lee L. Rev. 338 (1957).

The suit of an infant by his next friend must be brought in the infant's name and not in that of the next friend, that is, the infant and not the next friend must be the real party plaintiff. And a suit in the name of the next friend "on behalf of the infant" cannot be maintained. Kirby v. Gilliam, 182 Va. 111 , 28 S.E.2d 40 (1943).

This section requires that the suit be brought in the infant's name and not that of the next friend when the infant is the real party plaintiff. Bolen v. Bolen, 409 F. Supp. 1371 (W.D. Va. 1975).

And the consent of the infant is not necessary to authorize a suit on his behalf by a next friend, but any person may file a bill on behalf of an infant and even against the latter's will. Upon objection, the court will order an inquiry by a master to ascertain whether the suit is for the infant's benefit and whether some other person is best entitled to act as prochein ami, and will make such order as seems best for the interests of the infant. Kirby v. Gilliam, 182 Va. 111 , 28 S.E.2d 40 (1943).

Consent of the infant was not necessary for a suit to be maintained in her name by her next friend. Womble v. Gunter, 198 Va. 522 , 95 S.E.2d 213 (1956)commented on in 14 Wash. & Lee L. Rev. 338 (1957).

But infant must be real party plaintiff. - The mother of an infant consort cannot maintain in her own name an action to annul the marriage of her daughter. Kirby v. Gilliam, 182 Va. 111 , 28 S.E.2d 40 (1943).

Infant is bound by suit. - An infant, having sued under this section, is bound to the same degree, and the same extent as an adult. Gimbert v. Norfolk S.R.R., 152 Va. 684 , 148 S.E. 680 (1929).

In the absence of fraud an infant is as much bound by a decree or judgment of a court as is an adult. The law recognizes no distinction between a decree against an infant and a decree against an adult, and, therefore, an infant can impeach it only upon grounds which would invalidate it in case of an adult party. Womble v. Gunter, 198 Va. 522 , 95 S.E.2d 213 (1956)commented on in 14 Wash. & Lee L. Rev. 338 (1957).

But decree may be vacated if section not followed. - In a suit by an infant seeking to annul her marriage, relief was denied because of the insufficiency of the evidence. The cause was instituted and prosecuted to final decree in the name of the infant instead of by her next friend, in spite of the provisions of this section. Because the failure to institute and prosecute the suit by a next friend cast substantial doubt on the validity of the decree, the Supreme Court remanded the cause with direction that the decree be vacated and the cause proceeded in by the next friend of the infant complainant. Kilbourne v. Kilbourne, 165 Va. 87 , 181 S.E. 351 (1935).

And next friend cannot waive infant's rights. - It is not competent for the next friend of infant plaintiffs to waive the rights of the latter, and it is error to decree on such waiver. Hite v. Hite, 23 Va. (2 Rand.) 409 (1824); Armstrong's Heirs v. Walkup, 50 Va. (9 Gratt.) 372 (1852).

Dismissal without prejudice. - If a suit be brought in the name of the next friend and not in the infant's name, the suit must be dismissed without prejudice to the right of the next friend to refile the suit in the name of the infant. Bolen v. Bolen, 409 F. Supp. 1371 (W.D. Va. 1975).

A child can maintain a suit for negligently inflicted prenatal injuries. Bolen v. Bolen, 409 F. Supp. 1371 (W.D. Va. 1975).

Next friend should bring suit to annul marriage. - In this State an infant wife cannot bring suit in her own name to annul her marriage, but under this section must sue for this purpose by her next friend. Kirby v. Gilliam, 182 Va. 111 , 28 S.E.2d 40 (1943).

Suits for personal injuries. - An action for an assault and battery committed upon an infant, ought not to be brought in the name of the guardian of such infant, but in the name of such infant by his or her next friend. Stewart v. Crabbin's Guardian, 20 Va. (6 Munf.) 280 (1819).

Infants held bound by no contest provision in will. - Infant beneficiaries who joined in the contest of a will by their parents as next friends were bound by a no contest provision in the will equally with the adult contestants, where it was the testator's clearly expressed intention to restrain all beneficiaries from a contest. Womble v. Gunter, 198 Va. 522 , 95 S.E.2d 213 (1956)commented on in 14 Wash. & Lee L. Rev. 338 (1957).

Suits by guardian for protection of ward's property. - An infant should sue by his next friend; not by his guardian. The rule of this section, of course, is not applicable when it is incumbent on the guardian to sue for the protection of his ward's property, nor is it applicable when it would be in derogation of the statutory right of the guardian to institute a suit. Garland v. Norfolk Nat'l Bank of Commerce & Trusts, 156 Va. 653 , 158 S.E. 888 (1931).

Suits against guardian of infant. - A second guardian of an infant has no authority to file a bill in his own name, against a former guardian, for an account of his transaction in relation to the ward's estate. An infant may by his next friend, call the acting guardian, or any preceding guardian, to account by a bill in chancery. But the bill must be in his own name by his next friend. Lemon v. Hansbarger, 47 Va. (6 Gratt.) 301 (1849).

Next friend as a witness. - One who is made next friend to an infant without his knowledge or consent is not disqualified from being a witness. Burwell v. Corbin, 22 Va. (1 Rand.) 131 (1822).

Removal of next friend. - The next friend is to be removed if he is treacherous or negligent of the interests of the infant. Burwell v. Corbin, 22 Va. (1 Rand.) 131 (1822).

Cost of suit. - The prochein ami is liable for the costs of the suit. Burwell v. Corbin, 22 Va. (1 Rand.) 131 (1822).

CIRCUIT COURT OPINIONS

Parents may initiate action as child's next friend. - For purposes of the parents' pregnancy-related medical malpractice lawsuit, because the doctor's allegedly tortious conduct occurred while the parents' son was still in utero, the court sustained defendants' pleas in bar as the parents' claims for their son's medical expenses were derivative of a claim by the son for personal injuries, and the facts affirmatively showed no claim for personal injuries on behalf of the son currently pending; furthermore, the son's personal injury claim had to be brought in his name by his next friend under this statute, and could not be subsumed into a claim for personal injuries brought by the parents. Brown v. Tashman, 100 Va. Cir. 311, 2018 Va. Cir. LEXIS 620 (Fairfax County Nov. 9, 2018).

Next friend could appeal despite appointment of guardian ad litem. - Default rule under the law was that any person, including the next friend in this case, could have noted petitioner's appeal of the juvenile court's order on his behalf; case law establishes that a next friend and guardian ad litem both have authority to prosecute an appeal, and thus in this case, the next friend could properly note petitioner's appeal notwithstanding that a guardian ad litem had been appointed. The court did not lack jurisdiction over the appeal. Burns-Freeman v. Freeman,, 2021 Va. Cir. LEXIS 5 (Loudoun County Jan. 5, 2021).

OPINIONS OF THE ATTORNEY GENERAL

Petition by unemancipated minors for protective orders. - A minor may seek an emergency protective order in certain situations, but a minor who has not been emancipated, however mature that individual may be, can seek a protective order only through a next friend. See opinion of Attorney General to The Honorable Charniele L. Herring, Member, House of Delegates, 10-116, 2011 Va. AG LEXIS 2 (01/21/11).

§ 8.01-9. Guardian ad litem for persons under disability; when guardian ad litem need not be appointed for person under disability.

  1. A suit wherein a person under a disability is a party defendant shall not be stayed because of such disability, but the court in which the suit is pending, or the clerk thereof, shall appoint a discreet and competent attorney-at-law as guardian ad litem to such defendant, whether the defendant has been served with process or not. If no such attorney is found willing to act, the court shall appoint some other discreet and proper person as guardian ad litem. Any guardian ad litem so appointed shall not be liable for costs. Every guardian ad litem shall faithfully represent the estate or other interest of the person under a disability for whom he is appointed, and it shall be the duty of the court to see that the interest of the defendant is so represented and protected. Whenever the court is of the opinion that the interest of the defendant so requires, it shall remove any guardian ad litem and appoint another in his stead. When, in any case, the court is satisfied that the guardian ad litem has rendered substantial service in representing the interest of the person under a disability, it may allow the guardian reasonable compensation therefor, and his actual expenses, if any, to be paid out of the estate of the defendant. However, if the defendant's estate is inadequate for the purpose of paying compensation and expenses, all, or any part thereof, may be taxed as costs in the proceeding. In a civil action against an incarcerated felon for damages arising out of a criminal act, the compensation and expenses of the guardian ad litem shall be paid by the Commonwealth out of the state treasury from the appropriation for criminal charges. If judgment is against the incarcerated felon, the amount allowed by the court to the guardian ad litem shall be taxed against the incarcerated felon as part of the costs of the proceeding, and if collected, the same shall be paid to the Commonwealth. By order of the court, in a civil action for divorce from an incarcerated felon, the compensation and expenses of the guardian ad litem shall be paid by the Commonwealth out of the state treasury from the appropriation for criminal charges if the crime (i) for which the felon is incarcerated occurred after the date of the marriage for which the divorce is sought, (ii) for which the felon is incarcerated was committed against the felon's spouse, child, or stepchild and involved physical injury, sexual assault, or sexual abuse, and (iii) resulted in incarceration subsequent to conviction and the felon was sentenced to confinement for more than one year. The amount allowed by the court to the guardian ad litem shall be taxed against the incarcerated felon as part of the costs of the proceeding, and if collected, the same shall be paid to the Commonwealth.
  2. Notwithstanding the provisions of subsection A or the provisions of any other law to the contrary, in any suit wherein a person under a disability is a party and is represented by an attorney-at-law duly licensed to practice in this Commonwealth, who shall have entered of record an appearance for such person, no guardian ad litem need be appointed for such person unless the court determines that the interests of justice require such appointment; or unless a statute applicable to such suit expressly requires that the person under a disability be represented by a guardian ad litem. The court may, in its discretion, appoint the attorney of record for the person under a disability as his guardian ad litem, in which event the attorney shall perform all the duties and functions of guardian ad litem.

    Any judgment or decree rendered by any court against a person under a disability without a guardian ad litem, but in compliance with the provisions of this subsection, shall be as valid as if the guardian ad litem had been appointed.

    (Code 1950, §§ 8-88, 8-88.1; 1972, c. 720; 1977, c. 617; 1996, c. 887; 1999, cc. 945, 955, 987; 2001, c. 127; 2003, c. 563; 2021, Sp. Sess. I, c. 463.)

REVISERS' NOTE.

Section 8.01-9 combines former §§ 8-88 and 8-88.1.

Former § 8-88 has been expanded to include all persons under a disability (as defined in § 8.01-2 ) whenever such persons are party defendants to a suit. Otherwise this subsection is substantially the same as former § 8-88 except that unnecessary references to the judge in vacation have been eliminated, and it has been made clear that an attorney appointed as guardian ad litem is not liable for costs. Compensation and expenses of the guardian ad litem may be taxed as costs in the proceeding if the estate of the person under a disability is inadequate.

Two principal changes have been made to former § 8-88.1. First, the provision permitting the court to dispense with the appointment of a guardian ad litem has been amended; if a statute requires in a particular suit that the guardian ad litem file an answer, see e.g. § 8.01-73 , then one must be appointed under this section. Where a guardian ad litem is to be appointed, the second change permits the court to appoint the attorney of record for the person under a disability. The attorney must be licensed to practice in Virginia.

Former § 8-89 (When fact of defendant's nonresidence to be returned, and suit abated) has been deleted as obsolete and unnecessary.

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Cross references. - As to guardian ad litem in suits for sale or encumbrance of lands of persons under certain disabilities, see §§ 8.01-73 , 8.01-75 .

For special provisions as to guardians ad litem in certain proceedings, see § 8.01-261 (venue to recover dower and curtesy of spouse under disability);

§ 8.01-297 (suit against convict); § 8.01-394 (lost records); § 21-310 (drainage districts).

As to procedure in probate proceedings, see § 64.2-449.

As to pleadings in proceedings involving trusts, see § 64.2-713.

As to powers of guardian over a minor's estate, see § 64.2-1805.

The 1999 amendments. - The 1999 amendments by cc. 945 and 987, which are identical, inserted "former" preceding " § 46.2-351.2" and preceding " § 46.2-352" in the sixth sentence of subsection A.

The 1999 amendments by c. 955, in subsection A, inserted "the" preceding "opinion that" in the fifth sentence and added the last two sentences.

The 2001 amendments. - The 2001 amendment by c. 127, in subsection B, deleted "defendant" following "a party," and substituted "that the person under a disability be represented" for "an answer to be filed."

The 2003 amendments. - The 2003 amendment by c. 563 inserted the last two sentences in subsection A.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 463, effective July 1, 2021, deleted "or, in the case of proceedings to adjudicate a person under a disability as an habitual offender pursuant to former § 46.2-351.2 or former § 46.2-352, shall be paid by the Commonwealth out of the state treasury from the appropriation for criminal charges" at the end of the seventh sentence in subsection A.

Law review. - For survey of Virginia law on practice and pleading in the year 1971-1972, see 58 Va. L. Rev. 1309 (1972). For note discussing a state-incarcerated felon's capacity to sue under 42 U.S.C. § 1983 in federal courts despite prohibitive state statutes, see 30 Wash. & Lee L. Rev. 329 (1973).

Michie's Jurisprudence. - For related discussion, see 9B M.J. Infants, § 37; 10A M.J. Insane and Other Incompetent Persons, §§ 26, 27; 12A M.J. Limitation of Actions, § 37; 14A M.J. Parent and Child, § 7.

CASE NOTES

I. DECISIONS UNDER CURRENT LAW.

Legislative intent. - The General Assembly did not intend to require a circuit court to appoint a guardian ad item whenever the court issues a subpoena to compel a juvenile's testimony or where the circuit court initiates criminal contempt proceedings against the juvenile where juvenile is represented by counsel. Wilson v. Commonwealth, 23 Va. App. 318, 477 S.E.2d 7 (1996).

Statute irrelevant to suits by persons under disabilities. - This section recognizes that persons under disabilities may be sued in their own names and is concerned with the protection of such persons by appointment of a guardian ad litem but nothing in the statute provides any basis for concluding that, in the converse situation, a suit in his own name by a person under a disability who has a duly appointed fiduciary is valid. Cook v. Radford Community Hosp., Inc., 260 Va. 443 , 536 S.E.2d 906 (2000).

Section not applicable to criminal trial. - In trial for fraudulently obtaining an advance of payment for construction work to be performed in the future, in violation of § 18.2-200.1, defendant's contention that he was a "person under a disability" as defined by subdivision 6 a of § 8.01-2 , and as such, was entitled to an appointment of a guardian ad litem pursuant to § 8.01-9 , or a committee, pursuant to § 53.1-223, was without merit, as defendant introduced no evidence to show that he was in jail on a felony charge, and furthermore, these sections apply only to civil proceedings. Holsapple v. Commonwealth, 38 Va. App. 480, 566 S.E.2d 210, 2002 Va. App. LEXIS 376 (2002), aff'd on rehearing, 39 Va. App. 522, 574 S.E.2d 756 (2003).

In a construction fraud proceeding, defendant was not entitled to appointment of a guardian ad litem pursuant to this section or a committee, pursuant to § 53.1-223 once the victim forwarded the notice requesting the return of construction funds she advanced to defendant, who was in prison; defendant did not shown he was imprisoned for a felony and could not be a person under a disability, and neither this section nor § 53.1-223 applies to criminal proceedings. Holsapple v. Commonwealth, 39 Va. App. 522, 574 S.E.2d 756, 2003 Va. App. LEXIS 76 (2003).

Best interest of child is paramount concern. - The strong public policy of this Commonwealth posits that the paramount concern where children are concerned is their best interests and this public policy would be thwarted if a child were bound by a paternity determination in which the child's independent rights and interests were not adequately protected. Commonwealth ex rel. Gray v. Johnson, 7 Va. App. 614, 376 S.E.2d 787 (1989).

A guardian ad litem has standing to file a petition for termination of residual parental rights. Stanley v. Fairfax, 242 Va. 60 , 405 S.E.2d 621 (1991).

Appointment criteria in custody disputes. - While a guardian ad litem appointment is not required in every contested custody case, a finding that the appointment of a guardian ad litem is necessary and would be in the child's best interest is an essential prerequisite. Verrocchio v. Verrocchio, 16 Va. App. 314, 429 S.E.2d 482 (1993).

Power to file petition seeking termination of residual parental rights implicit. - No specific statutory provision either grants or denies the guardian ad litem the power to file a petition seeking the termination of residual parental rights, but such action is implicit in the general charge of authority given the guardian ad litem in this section to represent faithfully the interests of the individual under disability for whom he or she is appointed. Stanley v. Fairfax County Dep't of Social Servs., 10 Va. App. 596, 395 S.E.2d 199 (1990), aff'd, Stanley v. Fairfax, 242 Va. 60 , 405 S.E.2d 621 (1991).

Appointment permissible in custody hearing ancillary to divorce proceeding. - Circuit courts conducting a custody hearing as part of divorce proceedings are not constrained by the absence of a specific provision within this section providing for appointment of a guardian ad litem. Accordingly, in those contested custody cases where the trial judge finds that the best interests of the child are not adequately protected by the parties, appointment of a guardian ad litem for the child is appropriate. Verrocchio v. Verrocchio, 16 Va. App. 314, 429 S.E.2d 482 (1993).

Failure to appoint guardian ad litem for alcoholic does not render judgment void. - Where defendant contended that at the time of his habitual offender adjudication he was an alcoholic and a person under disability, the court's failure to appoint a guardian ad litem to represent him did not render the adjudication void and subject to collateral attack. Absent a showing of actual incapacity, a judgment against an alcoholic is voidable only, not subject to collateral attack. The record supported the trial court's determination that, at the time of his habitual offender adjudication, defendant's condition did not require the appointment of a guardian ad litem. Eagleston v. Commonwealth, 18 Va. App. 469, 445 S.E.2d 161 (1994).

Failure to appoint guardian ad litem for an in incarcerated person does not render judgment void. - Where defendant's disability, incarceration for a felony, arose under subdivision 6 a of § 8.01-2 . and defendant's status as an incarcerated felon was a material fact clearly known by a court that adjudicated him a habitual offender, defendant was not entitled to have a guardian ad litem appointed and could not collaterally attack the adjudication in a second court. Lowe v. Commonwealth, No. 0036-02-3, 2003 Va. App. LEXIS 6 (Ct. of Appeals Jan. 14, 2003).

Guardian ad litem did not satisfy committee requirement. - Where a trial court awarded a wife real estate parcels in her divorce case against her prisoner husband, it was required that a committee be appointed by the trial court for the husband before that property determination; the appointment of a guardian ad litem representing the husband did not satisfy the committee requirement. Grethen v. Grethen, No. 3244-03-1, 2005 Va. App. LEXIS 68 (Ct. of Appeals Feb. 15, 2005).

Actual selection left solely in hands of court. - The actual selection of a guardian ad litem, is left solely in the hands of the court. The court is not bound by the defendant's demands or requests. Ruffin v. Commonwealth, 10 Va. App. 488, 393 S.E.2d 425 (1990).

Limited fact-finding role. - Under Virginia law, the role of a guardian ad litem appointed under subsection A is to investigate thoroughly the facts and carefully examine the facts surrounding the case. The recommendation of infant's court-appointed guardian ad litem was thus irrelevant to the disposition of the case as it was inconsistent with the limited role of the guardian as an independent fact finder and not a surrogate decision maker when family members are involved. In re Baby "K", 832 F. Supp. 1022 (E.D. Va. 1993), aff'd, 16 F.3d 590 (4th Cir.), cert. denied, 513 U.S. 825, 115 S. Ct. 91, 130 L. Ed. 2d 42 (1994).

Weight given guardian's custody recommendation. - The recommendation of the guardian ad litem in instant child custody case, while not binding or controlling, should not be disregarded. The duty of a guardian ad litem in a child custody dispute is to see that the interest of the child is represented and protected. The child had no other independent participant in the proceeding, aside from the trial court, to protect his interests. Thus, this diligent guardian ad litem's recommendation that custody be awarded to the grandmother was entitled to be considered by the court in reaching a decision on the issue. Bottoms v. Bottoms, 249 Va. 410 , 457 S.E.2d 102 (1995).

Guardian must, at minimum, discuss matter with person under disability. - A person who has been appointed guardian ad litem must, if possible, at a minimum discuss the matter with the person under disability. Ruffin v. Commonwealth, 10 Va. App. 488, 393 S.E.2d 425 (1990).

Duty to make bona fide examination of facts. - A guardian has a duty to make a bona fide examination of the facts in order to properly represent the person under a disability. Ruffin v. Commonwealth, 10 Va. App. 488, 393 S.E.2d 425 (1990).

Displeasure with guardian's services. - A guardian ad litem has no duty to report to the court every instance in which a client expresses displeasure with his services. In the event that a defendant is unhappy with his guardian ad litem, it is his burden to show that the guardian is unfit to fulfill satisfactorily his obligations. Ruffin v. Commonwealth, 10 Va. App. 488, 393 S.E.2d 425 (1990).

Discharge of guardian. - In a parental rights termination case, the trial court was entitled to give a father's request to discharge his guardian ad litem or to require him to withdraw as counsel whatever weight it deemed proper, and proceed at its discretion; the trial court was not bound by the father's demand or request. Miller v. Page County Dep't of Soc. Servs.,, 2006 Va. App. LEXIS 25 (Jan. 24, 2006).

Motion to withdraw as counsel of inmate denied. - In a civil action for securities fraud against an inmate, the district court denied counsels' motions to withdraw because they failed to make the requisite showing under Fed. R. Civ. P. 17(b) and §§ 8.01-9 and 53.1-223 since the inmate did not waive his right to assistance and mere nonpayment of fees was insufficient to justify the withdrawals. United States SEC v. Woodard,, 2014 U.S. Dist. LEXIS 35417 (E.D. Va. Feb. 19, 2014).

Appointment of guardian ad litem resulting in conflict of interest. - Trial court abused its discretion under §§ 16.1-266 and 8.01-9 in appointing counsel who was hired by a parent to act as the child's guardian ad litem in a parentage action as a conflict of interest was created. Breit v. Mason, 59 Va. App. 322, 718 S.E.2d 482, 2011 Va. App. LEXIS 414 (2011).

In proceedings involving custody of child of unwed minor, guardian ad litem for the unknown father had standing to appeal the entrustment agreement decision by the juvenile and domestic relations district court. Norfolk Div. of Social Servs. v. Unknown Father, 2 Va. App. 420, 345 S.E.2d 533 (1986).

Habitual offender adjudication not subject to collateral attack. - Because defendant failed to prove that his alcoholism rendered him incapable of defending his interest, the failure to appoint a guardian ad litem did not create a jurisdictional defect, consequently, the habitual offender adjudication was not subject to a collateral attack on the grounds that a guardian ad litem should have been appointed. Hall v. Commonwealth, No. 0347-92-3 (Ct. of Appeals May 17, 1994).

Necessity of guardian ad litem appointment. - By stipulating that defendant was an alcoholic at the time of his habitual offender hearing, the Commonwealth placed defendant within the class of persons entitled to the appointment of a guardian ad litem, if not otherwise represented by counsel, during an habitual offender adjudication. England v. Commonwealth, 18 Va. App. 121, 442 S.E.2d 402 (1994).

Trial court did not abuse its discretion in ordering a mother to pay one-half of a guardian ad litem's fee, where the evidence presented demonstrated that the guardian was appointed to protect the interests of the children and favorably addressed an issue related to the mother's successful treatment for depression. Leake v. Leake, No. 3268-03-4, 2004 Va. App. LEXIS 491 (Ct. of Appeals Oct. 12, 2004).

Appointment of guardian ad litem not required. - When a grandmother appealed the denial of her petition for visitation with her granddaughter, and her incarcerated son joined in her appeal, § 8.01-9 and subsection D of § 16.1-266 [now subsection E of § 16.1-266] did not require the appointment of a guardian ad litem for the son because he was not "a party defendant" to the appeal, and the case did not involve an entrustment agreement, a custody dispute, a termination of the father's parental rights, or any of the actions described in § 16.1-266. Harris v. Boxler, No. 0604-03-3, 2003 Va. App. LEXIS 461 (Ct. of Appeals Sept. 2, 2003).

Guardian ad litem provisions of Virginia law did not require dismissal of defendants, who were served with a summons and a copy of a civil complaint after their convictions but before they began serving their sentences, because the provisions were not concerned with the capacity of a party, but only with the protection of a person under a disability when sued. Particularly since the case was brought under federal-question subject matter jurisdiction, the guardian ad litem provisions of Virginia law were not binding on the court. Buchanan County v. Blankenship, 406 F. Supp. 2d 642, 2005 U.S. Dist. LEXIS 35012 (W.D. Va. 2005).

Father's appeals were dismissed because the circuit court had vacated the order memorializing its child support ruling and properly denied the father's request for a guardian ad litem where he was not a "party defendant" in the case - he filed the action in court, moving to amend his child support obligation - and failed to meet his burden of proving that his inability to pay was not a result of his own voluntary act. Lowe v. Commonwealth, Dep't of Soc. Servs., Div. of Child Support Enforcement ex rel. Smith,, 2015 Va. App. LEXIS 38 (Feb. 10, 2015).

In a termination of parental rights case in which the mother was a 16-year-old minor, the trial court did not err by dismissing the mother's appeal because, contrary to mother's assertions, the trial court was not required to appoint a guardian ad litem for the mother as she was represented by counsel; it was within the trial court's discretion whether to appoint a guardian ad litem; and it was within the trial court's discretion to appoint an attorney and a guardian ad litem to represent a parent involved in an abuse or neglect case or a termination of parental rights matter. Scott v. City of Petersburg Dep't of Soc. Servs., No. 1368-16-2, 2017 Va. App. LEXIS 144 (June 6, 2017).

Appeal lacked merit. - Because the record did not contain copies of the protective orders at issue and the trial court's orders from a husband's divorce, because the husband was not a "party defendant" entitled to appointment of a guardian ad litem under § 8.01-9 , and because his opening brief did not comply with Va. Sup. Ct. R. 5A:20(e), the appeal lacked merit. Harnois v. Commonwealth,, 2011 Va. App. LEXIS 285 (Sept. 27, 2011).

II. DECISIONS UNDER PRIOR LAW.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

Guardian ad litem must be appointed for infant. - In every action or suit against an infant defendant, it is the duty of the court wherein the same is pending, or of the judge or clerk thereof in vacation, to appoint a guardian ad litem to represent the interest or estate of the infant. Turner v. Barraud, 102 Va. 324 , 46 S.E. 318 (1904); Kanter v. Holland, 154 Va. 120 , 152 S.E. 328 (1930).

An infant can only appear and defend by a guardian ad litem, and proceedings against him are generally fatally defective unless the record shows that such guardian was assigned him. Langston v. Bassette, 104 Va. 47 , 51 S.E. 218 (1905); Weaver v. Glenn, 104 Va. 443 , 51 S.E. 835 (1905); Kavanaugh v. Shackett, 111 Va. 423 , 69 S.E. 335 (1910).

Or else judgment void. - The law in Virginia is that a personal judgment rendered against an infant for whom no guardian ad litem has been appointed is void. Kanter v. Holland, 154 Va. 120 , 152 S.E. 328 (1930).

It is the settled law of this Commonwealth that a personal judgment rendered against an infant for whom it does not affirmatively appear of record that a guardian ad litem has been appointed is void. Hence, when on appeal from such a judgment it does not appear that a guardian was appointed below, the judgment obtained will have to be set aside and the action remanded for a new trial. Moses v. Akers, 203 Va. 130 , 122 S.E.2d 864 (1961).

But failure is not reversible error when decree in infant's favor. - If it clearly appears that the decree is beneficial to the infant, failure to appoint a guardian ad litem will not be reversible error. Langston v. Bassette, 104 Va. 47 , 51 S.E. 218 (1905).

Necessity for guardian ad litem for insane person. - It is only where there is no committee, or where there is a conflict of interest between the committee and the insane person, that it becomes necessary to appoint a guardian ad litem for the insane defendant. Hinton v. Bland, 81 Va. 588 (1886); Howard v. Landsberg's Comm., 108 Va. 161 , 60 S.E. 769 (1908).

Where the amended bill in a partition suit suggested that one of the parties was non compos mentis, and prayed for the appointment of a guardian ad litem, but the party and her husband and the appellant were all strenuously denying her insanity, and the issue was undetermined when she died, the fact that no guardian ad litem was appointed for her under this section is no ground for reversing the decree. Cottrell v. Mathews, 120 Va. 847 , 92 S.E. 808 (1917).

When insane person not a necessary party. - A lunatic having a regular appointed committee is not a necessary party to suit concerning his estate. Howard v. Landsberg's Comm., 108 Va. 161 , 60 S.E. 769 (1908).

Appointment when infants and insane persons unknown parties. - The preliminary report of a commissioner showed that several interested persons were infants, and the court appointed a guardian ad litem who filed his answer in that capacity, and also an answer for the infants by himself as guardian. It was alleged that this was error because the infants had not been made parties to the suit. It was held that this position was not tenable, as the infants were among the "unknown heirs" named as defendants in the amended bill in the suit and served by publication, and the action of the court was, therefore, entirely regular and proper. Goins v. Garber, 131 Va. 59 , 108 S.E. 868 (1921).

There is no legislative intent that this section should apply to § 53.1-221 et seq., pertaining to the appointment of committees for convict defendants. Dunn v. Terry, 216 Va. 234 , 217 S.E.2d 849 (1975).

Appointment of committee waiverable. - There is a significant difference between the status of an infant or insane person and that of a convict and such difference is persuasive that appointment of a committee for a convict was a procedural requirement that could be waived. Dunn v. Terry, 216 Va. 234 , 217 S.E.2d 849 (1975).

Convicts are not civilly dead in Virginia. Dunn v. Terry, 216 Va. 234 , 217 S.E.2d 849 (1975).

And are not legally incompetent to transact business. - Unlike an infant or insane person, a convict was not legally incompetent to transact business either before or after his conviction in a criminal case. Dunn v. Terry, 216 Va. 234 , 217 S.E.2d 849 (1975).

Appointment not presumed. - Where the interests of infants are concerned it must affirmatively appear from the record that a guardian ad litem was duly appointed. Where the record is silent on the subject it will not be presumed. Brown v. M'Rea, 18 Va. (4 Munf.) 439 (1815); Catron v. Bostic, 123 Va. 355 , 96 S.E. 845 (1918).

Any court may appoint. - It is a power incident to every court to appoint a guardian ad litem, and he may be appointed, although the infant has not been served with notice. Word v. Commonwealth, 30 Va. (3 Leigh) 743 (1827); Strayer v. Long, 83 Va. 715 , 3 S.E. 372 (1887).

Guardian ad litem not required to accept appointment. - A guardian ad litem appointed to prosecute an appeal on an infant's behalf is not obliged to accept the appointment. A reasonable time ought therefore to be given him to consider whether he will accept and to prepare for trial. Wells v. Winfree, 16 Va. (2 Munf.) 342 (1811). But as to power of court of equity to compel acceptance, see Strayer v. Long, 83 Va. 715 , 3 S.E. 372 (1887).

Insufficient evidence of acceptance. - Where an order appointing counsel for one of the defendants' guardian ad litem for an infant interested in the suit, was indorsed "seen" and signed but no answer filed, it was held that this was not sufficient evidence of acceptance. Jeffries v. Jeffries, 123 Va. 147 , 96 S.E. 197 (1918).

The infant is never to be prejudiced by the act, default or admission of his guardian ad litem. Daingerfield v. Smith, 83 Va. 81 , 1 S.E. 599 (1887); Morris v. Virginia Ins. Co., 85 Va. 588 , 8 S.E. 383 (1888).

Power to consent to sale. - Infant defendants are incompetent to consent to decree of sale, and their guardian ad litem cannot consent for them. Daingerfield v. Smith, 83 Va. 81 , 1 S.E. 599 (1887).

It is not competent for guardians of infant parties, to waive any benefit to which the infants are entitled in a decree; and it is error to decree on such consent. Hite v. Hite, 23 Va. (2 Rand.) 409 (1824).

A guardian ad litem may consent, for his wards, to the removal of the suit from one circuit to another. Lemmon v. Herbert, 92 Va. 653 , 24 S.E. 249 (1896).

Presumption as to answer. - When it appears of record that the infant defendants appeared and answered by their guardian ad litem, and that there was a general replication thereto, it will be presumed in the appellate court that the answer was regularly filed, though the answer itself is not found among the papers in the record. Smith v. Henkel, 81 Va. 524 (1886).

But record must show answer filed. - The heirs being infants, though their guardian was a party and answered, they were entitled to be defended by a guardian ad litem, and although one was appointed for them, and there was a paper purporting to be an answer found among the papers of the cause, yet as it did not appear that it had been filed, it was error to decree the sale of the infant's land, without an answer filed by the guardian ad litem. Ewing v. Ferguson, 74 Va. (33 Gratt.) 548 (1880).

Effect of answer. - No rule is better settled, than that an answer of an infant by guardian ad litem cannot be read against him at all, for any purpose. Bank of Alexandria v. Patton, 40 Va. (1 Rob.) 499 (1843).

Fees of guardian. - In the absence of peculiar facts, such as the creation of a fund which enures to the common benefit of all concerned, the allowance of guardian ad litem fees is regulated by this section. An estate of an infant contingent remainderman was such an estate as that contemplated by this section, and, therefore, it was error for the court to decree the payment of the guardian ad litem's fee out of the corpus of the trust estate, and in view of the fact that the fee was based on the theory that it should be paid out of the corpus and not fall upon the infant, the infant should be given an opportunity, if so advised, to question the reasonableness of the fee finally allowed. Patterson v. Old Dominion Trust Co., 156 Va. 763 , 159 S.E. 168 (1931).

Guardian's fee in partition proceeding held payable from proceeds of sale. - In a partition proceeding in which a guardian ad litem, through his own efforts, had increased the amount offered for the property in question by at least $15,000, a $2,000 fee awarded to the guardian had to be paid from the proceeds of the judicial sale, rather than from the infants' shares of the proceeds. Austin v. Dobbins, 219 Va. 930 , 252 S.E.2d 588 (1979).

CIRCUIT COURT OPINIONS

Failure to appoint guardian ad litem for mentally disabled. - Default judgment was not rendered void because of the defendant being a person under disability, as defined by § 37.1-134.6 [now incapacitated, § 37.2-1000] and subdivision 6 of § 8.01-2 , due to his mental disability brought on by his advancing years, and because his interests were not protected by the appointment of a guardian ad litem. Cordova v. Alper, 64 Va. Cir. 87, 2004 Va. Cir. LEXIS 36 (Fairfax County 2004).

Review of the language of this section, supported the non-appointment of a guardian ad litem, as the statute allowed representation of an attorney to support the necessary assistance. Commonwealth v. Duncan, 95 Va. Cir. 547, 2008 Va. Cir. LEXIS 312 (Chesapeake Dec. 4, 2008).

Convict a proper party to a civil action. - Defendant, who suffered under the disability of incarceration at the time of the filing of plaintiff's action against him, was a proper party under § 8.01-9 , and the committee's name was not required to have appeared as a party on plaintiff's motion for judgment. Weaver v. Franklin,, 2002 Va. Cir. LEXIS 273 (Newport News Sept. 18, 2002).

Qualified immunity. - Guardian ad litem's special plea of immunity was denied because qualified immunity would not shield the guardian ad litem from allegations that he committed intentional torts outside of, or alleged to be contrary to, his responsibilities, as alleged in the complaint. St. Martin v. McCracken, 101 Va. Cir. 257, 2019 Va. Cir. LEXIS 84 (Chesapeake Mar. 7, 2019).

Guardians ad litem are not employees of the State, but act as agents of the State; therefore, they are not entitled to judicial or absolute immunity, which would extend to all alleged conduct, but rather, guardians ad litem are entitled to a qualified immunity flowing from conduct related to their responsibilities and conduct taken to perform requirements incumbent upon them by the nature of their appointment. St. Martin v. McCracken, 101 Va. Cir. 257, 2019 Va. Cir. LEXIS 84 (Chesapeake Mar. 7, 2019).

OPINIONS OF THE ATTORNEY GENERAL

Authority of court inherent to appoint guardian ad litem. - The Circuit Court may appoint a guardian ad litem in proceedings pending before the Virginia Workers' Compensation Commission. See opinion of Attorney General to the Honorable Charles N. Dorsey, Judge, Twenty-third Judicial Circuit, 13-006, 2013 Va. AG LEXIS 26 (4/19/13).

§ 8.01-10. Joinder of tenants in common.

Tenants in common may join or be joined as plaintiffs or defendants.

(Code 1950, § 8-90; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 5A M.J. Cotenancy, § 48.

§ 8.01-11. Proceedings on writing binding deceased person.

  1. A bond, note, or other written obligation to a person or persons who, or some of whom, are dead at the time of its execution may be proceeded on in the name of the personal representative of such person, or the survivors or survivor, or of the representative of the last survivor of such persons.
  2. If one person bound either jointly or as a partner with another by a judgment, bond, note, or otherwise for the payment of a debt, or the performance or forbearance of an act, or for any other thing, die in the lifetime of such other, the representative of the decedent may be charged in the same manner as the decedent might have been charged, if those bound jointly or as partners, had been bound severally as well as jointly, otherwise than as partners.

    (Code 1950, §§ 8-92, 8-93; 1977, c. 617.)

REVISERS' NOTE.

Section 8.01-11 combines former §§ 8-92 and 8-93 without substantive change.

Former § 8-91 (Suing in the names of persons who are dead) has been deleted as obsolete. Cf. § 55-22.

________

Cross references. - As to effect of death after verdict, see §§ 8.01-20 , 8.01-21 .

As to effect of death during pendency of suit, see § 8.01-22 .

As to validity of bond, note or other writing payable to deceased person, see § 11-9 .

As to compromise as affecting liability, see §§ 11-10 , 11-11 .

As to right of contribution, see § 11-13 .

As to substitution of parties, see Rule 3:17.

Michie's Jurisprudence. - For related discussion, see 3A M.J. Bonds, §§ 13, 22; 8A M.J. Executors and Administrators, § 100; 14A M.J. Partnership, § 46; 18 M.J. Suretyship, § 9.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

Bond payable to administrator. - An administrator may declare in the debet and detinet on a bond executed to himself as such, and his executor or administrator has the right to bring an action upon it. Bowden v. Taggart, 17 Va. (3 Munf.) 513 (1811).

Where an administrator is one of the obligors in a bond for the payment of a sum of money to the decedent he cannot maintain an action against his co-obligors to enforce the payment of the money. Rodes v. Rodes, 65 Va. (24 Gratt.) 256 (1874).

Where executor died before forthcoming bond taken. - An executor recovered judgment against a debtor of his testator, and sued out execution thereon. Before the execution was delivered to the sheriff, the executor died. The execution being then delivered to the sheriff, he levied it on property of defendant, and took a forthcoming bond payable to the executor in his official capacity. It was held that the execution was properly levied, though the executor was dead before it was delivered, and the forthcoming bond was rightly taken to the executor in his official capacity, and was good. Thereupon, a motion for award of execution on the forthcoming bond was made by the executor of aforesaid execution. It was held that the forthcoming bond belonged to the original testator's estate, and the second executor was entitled to the motion, and to award of execution on the bond, as the representative of the original testator, not as the representative of the first executor. Turnbull v. Claibornes, 30 Va. (3 Leigh) 392 (1831).

Contribution and subrogation between partners not affected. - This section does not affect the rules as to contribution between partners and subrogation of a partner to the rights of partnership creditors whose debts he has paid. Sands v. Durham, 99 Va. 263 , 38 S.E. 145 (1901).

Order of priority as to partners. - The social assets are applicable first to the social debts, and if insufficient, the social creditors come in as general creditors pari passu, with separate creditors of the same class upon the separate estate of the deceased partner. This principle has the sanction of the deliberate and unanimous decision of this court in Ashby v. Porter, 67 Va. (26 Gratt.) 455, 465 (1875), and an implicit legislative adoption of this section taken word for word, from section 13, chapter 144, Code of 1849, with the construction which it had received by this court, and that construction has been followed and reaffirmed by the court in the case of Robinson v. Allen, 85 Va. 721 , 8 S.E. 835 (1889); Pettyjohn v. Woodruff, 86 Va. 478 , 10 S.E. 715 (1890).

Section does not affect marshaling of assets. - This section does not change or affect the order in which the assets of the decedent are to be applied in the payment of debts as prescribed by § 64.1-157 [now § 64.2-528]. Robinson v. Allen, 85 Va. 721 , 8 S.E. 835 (1889).

Nor principle as to loss of remedy upon grounds not personal. - The statute in relation to joint obligations, though it gives an action against the personal representative of a deceased joint obligor, does not affect the principle that the defeat of the remedy against one joint obligor upon a ground not personal to himself, defeats it as to all obligors. Brown v. Johnson, 54 Va. (13 Gratt.) 644 (1857).

Pendency of two suits. - Where two suits having same object are pending, a decree in one for account, suspends the other. A suit to administer a deceased partner's separate property for his separate creditors, and a suit to administer partnership property for the partnership creditors, not having the same object, this rule does not apply. Robinson v. Allen, 85 Va. 721 , 8 S.E. 835 (1889).

§ 8.01-12. Suit by beneficial owner when legal title in another.

When the legal title to any claim or chose in action, for the enforcement of the collection of which a court of equity has jurisdiction, is in one person and the beneficial equitable title thereto is in another, the latter may either maintain a suit in the name of the holder of the legal title for his use and benefit or in his own name to enforce collection of the same. In either case the beneficial equitable owner shall be deemed the real plaintiff and shall be liable for costs.

(Code 1950, § 8-93.1; 1977, c. 617.)

Cross references. - As to liability for costs where suit is brought by one person for the benefit of another, see § 17.1-603.

As to when a person not a party may take or sue under instrument, see § 55.1-119.

Law review. - For survey of Virginia law on practice and pleading for the year 1974-1975, see 61 Va. L. Rev. 1799 (1975).

Michie's Jurisprudence. - For related discussion, see 4B M.J. Corporations, § 276.

CASE NOTES

I. DECISIONS UNDER PRIOR LAW.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

Equity rule modified. - The equitable rule that a suit in equity must invariably be brought in the name of the real party in interest and not in the name of another has been modified and changed in Virginia by this section. Stuart Court Realty Corp. v. Gillespie, 150 Va. 515 , 143 S.E. 741 (1928).

Suit by assignee/real estate broker. - A real estate broker brought his action for commissions against the administrator of a landowner. The landowner had placed his property in the hands of another broker for sale, who had asked plaintiff to assist him in making a sale and agreed to share commissions with him. It was held that the contract between the brokers was in effect an equitable assignment by the original broker to plaintiff of a one-half interest in the contract with the landowners, and that the plaintiff, under this section, had the right to maintain an action in his own name to enforce the collection of his commission against the landowner's administrator. Arwood v. Hill's Adm'r, 135 Va. 235 , 117 S.E. 603 (1923).

Assignment of judgment does not carry right to sue sheriff. - The assignment of a judgment does not carry with it, as an incident, the right to sue the sheriff and the sureties on his official bond for a breach of the condition thereof occurring prior to the assignment. Commonwealth v. Wampler, 104 Va. 337 , 51 S.E. 737 (1905).

Pleading and practice. - In an action in the name of one for the use of another, it is usual to state the fact in the declaration, or on it, or on the writ. But this is not necessary. The indorsement may be made at any time during the progress of the suit. It is sometimes not made until after execution is issued, which is then indorsed for the benefit of the party for whose benefit the suit was brought. Hayes v. Virginia Mut. Protection Ass'n, 76 Va. 225 (1882). See also, Clarksons v. Doddridge, 55 Va. (14 Gratt.) 42 (1857); Fadeley v. Williams, 96 Va. 397 , 31 S.E. 515 (1899); Consumers Ice Co. v. Jennings, 100 Va. 719 , 42 S.E. 879 (1902).

§ 8.01-13. Assignee or beneficial owner may sue in own name; certain discounts allowed.

The assignee or beneficial owner of any bond, note, writing or other chose in action, not negotiable may maintain thereon in his own name any action which the original obligee, payee, or contracting party might have brought, but, except as provided in § 8.9A-403 , shall allow all just discounts, not only against himself, but against such obligee, payee, or contracting party, before the defendant had notice of the assignment or transfer by such obligee, payee, or contracting party, and shall also allow all such discounts against any intermediate assignor or transferor, the right to which was acquired on the faith of the assignment or transfer to him and before the defendant had notice of the assignment or transfer by such assignor or transferor to another.

(Code 1950, § 8-94; 1964, c. 219; 1966, c. 396; 1977, c. 617.)

Cross references. - As to rights of assignee against assignor, see § 8.01-14 .

As to equitable jurisdiction, see § 8.01-33 .

As to survival of causes of action, see § 8.01-56 .

As to payment and set-offs as defenses, see §§ 8.01-422 , 8.01-423 .

As to when person not a party may take and sue under an instrument, see § 55.1-119.

As to assignment of various types of interest, see § 38.2-3111 (life insurance policies); §§ 55.1-1400, 55.1-1409 (leases).

Law review. - For survey of Virginia law on torts for the year 1972-1973, see 59 Va. L. Rev. 1590 (1973).

For article, "Civil Practice and Procedure," see 45 U. Rich. L. Rev. 183 (2010). For article, "Medical Malpractice Law," see 45 U. Rich. L. Rev. 319 (2010).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Assignments, §§ 7, 10, 11, 36 - 38; 3C M.J. Commercial Law, § 95; 5A M.J. Covenants, § 14; 16 M.J. Setoff, Recoupment and Counterclaim, § 13.

CASE NOTES

I. GENERAL CONSIDERATION.

Editor's note. - Many of the cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, sometimes refers to former provisions.

This section does not create any new cause of action, and has no application to cases in which there is no assignment. Commonwealth v. Wampler, 104 Va. 337 , 51 S.E. 737 (1905).

Applicable to law, not equity, actions. - The terminology of this section connotes its applicability to actions at law rather than to suits in equity. Moreover, there is a valid distinction between the accrual of the equitable, inchoate right to contribution that arises at the time of jointly negligent acts and the maturation of the right to recover contribution that arises only after payment of an equally large share of the common obligation. Nationwide Mut. Ins. Co. v. Minnifield, 213 Va. 797 , 196 S.E.2d 75 (1973).

It is limited in its application to nonnegotiable instruments, and cannot be construed to apply to negotiable instruments negotiated after maturity, because an instrument negotiable in its origin continues to be negotiable until it has been restrictively indorsed or discharged by payment or otherwise. Stegal v. Union Bank & Fed. Trust Co., 163 Va. 417 , 176 S.E. 438 (1934).

This section does not apply to negotiable paper, though such paper has been transferred after due. Davis v. Miller, 55 Va. (14 Gratt.) 1 (1857).

It imposes no conditions on the assignee's right to sue, but allows the assignee to bring in his own name any suit which the assignor may have brought. United States ex rel. Shade Shop, Inc. v. R.B. McDanel Co., 16 F. Supp. 905 (E.D. Va. 1936).

Section enacted primarily for benefit of plaintiff. - The history of this section shows that it was enacted primarily for the benefit, convenience and protection of the plaintiff or an assignee of the plaintiff, and not for the benefit or protection of the defendant whose rights are amply safeguarded. Miller v. Tomlinson, 194 Va. 367 , 73 S.E.2d 378 (1952).

Rules of evidence not changed. - This section cannot be construed to change the rules of evidence applicable. Noland Co. v. Wagner, 153 Va. 254 , 149 S.E. 478 (1929).

As to history of former law, see Carozza v. Boxley, 203 F. 673 (4th Cir. 1913).

Applied in Sunsport, Inc. v. Barclay Leisure Ltd., 984 F. Supp. 418 (E.D. Va. 1997).

II. WHAT MAY BE ASSIGNED.

Assignable rights of action. - A right of action for mere personal torts, such as assault and battery, false imprisonment, malicious prosecution, defamation and deceit, which die with the party and do not survive, cannot be assigned, but a right of action to recover damages for an injury to property, real or personal, may be assigned. Dillard v. Collins, 66 Va. (25 Gratt.) 343 (1874); Norfolk & W.R.R. v. Read, 87 Va. 185 , 12 S.E. 395 (1890).

A right of action in pending suit against railroad company for negligently setting fire to plaintiff's property may be assigned in whole or in part. Tyler v. Ricamore, 87 Va. 466 , 12 S.E. 799 (1891).

When a lower proprietor of land is damaged by the permanent diversion of water from a stream by a city, and after the diversion such proprietor sells and conveys his property thus damaged to a third person and assigns to him all the assignor's rights which belonged to the owner of the property at the time of the diversion, the purchaser is thus clothed with all rights which belonged to the owner at the time of diversion, and has the right to recover the damages resulting from such diversion. Such damages are a legitimate subject of assignment, and it is immaterial that the assignee was also the grantee of the land who purchased it at a reduced price in consequence of the diversion. City of Lynchburg v. Mitchell, 114 Va. 229 , 76 S.E. 286 (1912).

A right of action against a common carrier for injury to goods while in course of transportation is assignable. Norfolk & W.R.R. v. Read, 87 Va. 185 , 12 S.E. 395 (1890).

Legal malpractice claims not assignable. - Estate beneficiary lacked standing to pursue a legal malpractice claim against the attorney representing her mother's estate because § 8.01-13 did not abrogate the common-law rule prohibiting the assignment of legal malpractice claims, and the attorney represented the estate, not the beneficiary. Johnson v. Hart, 279 Va. 617 , 692 S.E.2d 239, 2010 Va. LEXIS 55 (2010).

Indemnitors as assignees of right of contribution against joint tort-feasors. - Under this section and § 55-22, an action was properly brought by a transit company to secure contribution from other joint tort-feasors for the benefit of insurance companies that had indemnified the transit company for a settlement made with a passenger injured in one of its buses. The indemnitors were assignees and the beneficial owners of the right of the transit company to enforce contribution against such tort-feasors, and they had the right to proceed in the name of the transit company for their own use and benefit. McKay v. Citizens Rapid Transit Co., 190 Va. 851 , 59 S.E.2d 121 (1950).

Assignment of benefits payable to an insured under a health insurance policy is a contingent entitlement to certain benefits, i.e., an entitlement which may or may not vest sometime in the future. That entitlement, however, is one coupled with an interest, an interest derived from contract. As such, it is a proper subject of assignment. Kelly Health Care, Inc. v. Prudential Ins. Co. of Am., 226 Va. 376 , 309 S.E.2d 305 (1983).

Health care provider was held not to be an assignee of an insured's benefits under a health insurance policy where one of the documents on which it relied did no more than appoint the health care provider as the insured's special agent with entitlement to collect payments from the insurer as the insured's entitlements fell due and the other document granted the insurer authority in the nature of a power of attorney to make such payments. Kelly Health Care, Inc. v. Prudential Ins. Co. of Am., 226 Va. 376 , 309 S.E.2d 305 (1983).

A contingent or future interest may be assigned. Prince v. Barham, 127 Va. 462 , 103 S.E. 626 (1920).

Leases. - It is settled law that in the absence of express prohibition all leases are assignable. Wainwright v. Bankers' Loan & Inv. Co., 112 Va. 630 , 72 S.E. 129 (1911).

Mechanic's lien. - The contract and mechanic's lien under the statute may be assigned, and the assignee may enforce the lien in the same mode that the mechanic might do it. Iaege v. Bossieux, 56 Va. (15 Gratt.) 83 (1859).

Open accounts. - A debt due from another, though evidenced by an open account, is a chose in action, and the beneficial owner thereof may maintain an action therefor in his own name under this section. Phillips v. City of Portsmouth, 115 Va. 180 , 78 S.E. 651 (1913).

Under this section an ordinary running account between parties, showing an alleged indebtedness from the one to the other, is assignable. Porter v. Young, 85 Va. 49 , 6 S.E. 803 (1888).

Personal service contracts. - Where the personal services of another are expressly contracted for, or are necessarily involved in the subject matter of the contract, the contract is founded on personal trust and confidence, and is not assignable until the services have been performed. Epperson v. Epperson, 108 Va. 471 , 62 S.E. 344 (1908); McGuire v. Brown, 114 Va. 235 , 76 S.E. 295 (1912).

III. WHAT CONSTITUTES AN ASSIGNMENT.
A. IN GENERAL.

No particular form necessary. - To constitute an assignment of a debt or other chose in action in equity no particular form is necessary. Any order, writing, or act, which makes an appropriation of a fund, will amount to an equitable assignment of the fund, and taking all the surrounding circumstances into consideration, if it appears that the assignor intended to assign a particular fund to the assignee, and the assignee so understood and accepted it, then it is sufficient to pass to the assignee the debt so secured. Cunningham v. Herndon, 6 Va. (2 Call) 530 (1801); Atwell v. Towles, 15 Va. (1 Munf.) 175 (1810); Switzer v. Noffsinger, 82 Va. 518 (1886). See also S.H. Hawes & Co. v. William R. Trigg Co., 110 Va. 165 , 65 S.E. 538 (1909), modified, 218 U.S. 452, 31 S. Ct. 49, 54 L. Ed. 1107 (1910); Hughes v. Burwell, 113 Va. 598 , 75 S.E. 230 (1912); Rinehart & Dennis Co. v. McArthur, 123 Va. 556 , 96 S.E. 829 (1918); Poff v. Poff, 128 Va. 62 , 104 S.E. 719 (1920).

But section only applies to assignee or beneficial owner. - A debtor sold and conveyed property to a purchaser, who, as part of the consideration, covenanted that he would pay certain debts of his grantor. The purchaser conveyed to a second purchaser, who, likewise, as a part of consideration for the conveyance to him, covenanted that he would pay the said debts of the original grantor. A motion for a joint judgment at law in favor of the creditor against the original debtor and each of the purchasers, who had successively covenanted to pay the debts, cannot be maintained under this section. For the creditor is neither assignee nor beneficial owner of the debts which the successive purchasers had promised to pay, but the true owner of the debt of the original debtor. McIlvane v. Big Stoney Lumber Co., 105 Va. 613 , 54 S.E. 473 (1906).

Subrogation is not the same as assignment. Nationwide Mut. Ins. Co. v. Minnifield, 213 Va. 797 , 196 S.E.2d 75 (1973).

But distinction between assignment and subrogation not determinative in construing section. - As the term "beneficial owner" in this section is broad enough to include a subrogee, the distinction between assignment and subrogation is not determinative in construing this section. Nationwide Mut. Ins. Co. v. Minnifield, 213 Va. 797 , 196 S.E.2d 75 (1973).

Appointment of an agent or the grant of a power of attorney cannot qualify as an assignment. Both are revocable, and the latter expires at the grantor's death. Kelly Health Care, Inc. v. Prudential Ins. Co. of Am., 226 Va. 376 , 309 S.E.2d 305 (1983).

Effect of misnomer in corporate name. - A misnomer in a corporate name does not invalidate an assignment when it is clear what corporation the parties intended, and such a mistake may be shown in evidence, upon the general issue. Lataif v. Commercial Indus. Constr., Inc., 223 Va. 59 , 286 S.E.2d 159 (1982).

B. NECESSITY FOR CONSIDERATION.

A written assignment of a claim does not necessarily import a valuable consideration; and if it be fairly inferable, from the circumstances, that the assignment was a gift, the assignor cannot be held responsible to make good the claim, to the immediate assignee or to his assignees for value. Wood v. Duval, 36 Va. (9 Leigh) 6 (1837).

Presumption as to amount. - In absence of proof of consideration for assignment, it must be presumed to have been the value of the thing assigned, and such value measures the recovery on recourse. Barley v. Layman, 79 Va. 518 (1884).

C. NOTICE.

Effect of notice. - The debtor, before notice of the assignment may, by contract with his creditors, thoroughly modify the legal relation subsisting between them, or may enter into a new and different contract, which shall by express words constitute an extinguishment of the subsisting contract. The assignee should be diligent in giving notice to the debtor, that he might know his real creditor. Without such notice, the debtor has every reason to consider the payee still his creditor, and any payment made to the payee, or new contract expressly entered into between them in extinguishment of the note, before notice of the assignment, is in contemplation of law a payment of the note, and the assignee cannot recover upon it as against the payee, if the defendant pleads payment, and files with his plea an account showing the nature of the payment relied on. Huffman v. Walker, 67 Va. (26 Gratt.) 314 (1875); Switzer v. Noffsinger, 82 Va. 518 (1886).

Recordation. - Assignments of choses in action need not be recorded in Virginia. Hence, such recordation if made would not constitute constructive notice to third persons. Kirkland v. Brune, 72 Va. (31 Gratt.) 126 (1878); Gregg v. Sloan, 76 Va. 497 (1881); Bickle v. Chrisman, 76 Va. 678 (1882); Gordon v. Rixey, 76 Va. 694 (1882); Daily v. Warren, 80 Va. 512 (1885); Ginter v. Breeden, 90 Va. 565 , 19 S.E. 656 (1894).

Legal effect of notice of assignment is not to make the debtor disclose his defenses, but to preclude him from setting up after-acquired defenses against assignor. Norton v. Rose, 2 Va. (2 Wash.) 233 (1796); Garland v. Richeson, 25 Va. (4 Rand.) 266 (1826); Feazle v. Dillard, 32 Va. (5 Leigh) 30 (1834); Gordon v. Rixey, 76 Va. 694 (1882); Stebbins v. Bruce, 80 Va. 389 (1885).

IV. EFFECT OF ASSIGNMENT.
A. ASSIGNEE TAKES SUBJECT TO EQUITIES AND SET-OFFS.

Assignee takes same rights and is subject to same liabilities as assignor. - It is settled law in this State that assignee of nonnegotiable paper stands in the shoes of his assignor, and takes subject to all defenses of the debtor against the assignor existing before notice of assignment. Davis v. Miller, 55 Va. (14 Gratt.) 1 (1857); Etheridge v. Parker, 76 Va. 247 (1882); Stebbins v. Bruce, 80 Va. 389 (1885).

It has been settled by many decisions that the effect of the statute is not to give the assignee of nonnegotiable paper a legal title, so that equities are cut off against him, but only to permit him to enforce in his own name an equitable title at law, subject to all prior equities, just as when he sued in the assignor's name. Davis v. Miller, 55 Va. (14 Gratt.) 1 (1857); Clarksons v. Doddridge, 55 Va. (14 Gratt.) 42 (1857); Iaege v. Bossieux, 56 Va. (15 Gratt.) 83 (1859); Tyler v. Ricamore, 87 Va. 466 , 12 S.E. 799 (1891).

Under this section an assignee is clothed with just such capacity to sue as existed at common law in his assignor. He is vested with power to institute such actions, and such actions only, as his assignor could have maintained. Aylett v. Walker, 92 Va. 540 , 24 S.E. 226 (1896).

In an action by an assignee the defendant may avail himself of all defenses he had against the assignor before he received notice of the assignment. Hartford Fire Ins. Co. v. Mutual Sav. & Loan Co., 193 Va. 269 , 68 S.E.2d 541 (1952).

Breaches of contract occurring after assignment. - Where the right asserted by the debtor against the assignee was not the right of set-off, growing out of an extrinsic transaction, but rather the right of recoupment, allowing diminution of the claim made for failure of the claimant to live up to the terms of the agreement out of which the claim arose, breaches by the assignor of its contract could be properly urged against its assignee though occurring after the assignment. National Bank & Trust Co. v. Castle, 196 Va. 686 , 85 S.E.2d 228 (1955).

Effect when debtor and creditor firms have common partners. - The assignee of a nonnegotiable chose in action may, under this section, maintain thereon in his own name any action which his assignor might have maintained. But where the debtor and the creditor are firms in which there are one or more common partners, no action at law can be maintained in the name of the assignee of the chose, as none could have been maintained by his assignors. Aylett v. Walker, 92 Va. 540 , 24 S.E. 226 (1896).

Set-off may be waived. - In accordance with the well settled principle that an individual may waive any statutory or constitutional provision intended for his benefit, one having the right of set-off may waive it. But where an agreement is relied on in justification of a departure from the general rules governing set-off, it must appear that the proposed set-off is embraced therein. Armour & Co. v. Whitney & Kemmerer, Inc., 164 Va. 12 , 178 S.E. 889 (1935).

B. RIGHT TO SUE.

In name of assignee. - The assignee or beneficial owner of a contract may, under the express provisions of this section, maintain an action thereon in his own name. Oliver Ref. Co. v. Portsmouth Cotton Oil Ref. Corp., 109 Va. 513 , 64 S.E. 56 (1909).

Under this section a trustee and assignee of a joint stock company may sue in his own name for unpaid subscriptions to the capital stock of the company. Glenn v. Scott, 28 F. 804 (C.C.W.D. Va. 1886).

In name of either party. - Where money due a subcontractor was assigned by him to creditors pursuant to an order to pay which was accepted by the contractors, the only effect of this section was to enable the assignee to sue in the name of the assignor taking the assigned claim subject to all equities of the assignor in whom the legal title still remained, and it was therefore error to refuse to permit the assignor to sue thereon for his own benefit and for the use of his assignees to the extent of their interest. Carozza v. Boxley, 203 F. 673 (4th Cir. 1913).

Under this section suit may be brought on an assigned chose in action either in the name of the original obligee or payee, in his name for the use of the assignee or in the name of the assignee alone. Carozza v. Boxley, 203 F. 673 (4th Cir. 1913).

Under this section an action on a fire insurance policy, which contained a standard mortgage clause, could be maintained by the owner of the realty and did not have to be brought by the mortgagee. Glens Falls Ins. Co. v. Sherritt, 95 F.2d 823 (4th Cir. 1938).

The assignee of a bond under our statute does not acquire the legal title to the debt, but an equitable right, which, by virtue of the statute, he may assert at law in his own name, and he has his election to sue, at law, in his own name, or in that of the original obligee, for his benefit. Garland v. Richeson, 25 Va. (4 Rand.) 266 (1826).

Under this section the assignee of an insurance policy could have sued in his own name, but not having done so, a recovery for his benefit is not thereby barred. The indorsement of the fact is sometimes not made until after the execution is issued. Aetna Ins. Co. v. Aston, 123 Va. 327 , 96 S.E. 772 (1918).

A deed of trust on a chose in action is an assignment pro tanto of the chose and an action thereon in the name of the assignor for the benefit of himself and the creditor secured is properly brought. Newton v. White, 115 Va. 844 , 80 S.E. 561 (1914).

Right to sue accruing prior to assignment of judgment not included. - This section does not authorize an assignee of a judgment to maintain an action against an officer and the sureties on his official bond for a breach occurring prior to the assignment, by reason of the officer's failure to return a forthcoming bond taken on the judgment as prescribed by statute to give the bond the force of a judgment against the obligors. The section does not invest in assignees as an incident to assignment a litigious right against a third person for an injury which accrued prior to the assignment. Commonwealth v. Wampler, 104 Va. 337 , 51 S.E. 737 (1905).

Legatee has no right to collect debts under this section. - This section was not intended to overthrow the well-established principle and the rule of law that, in case of death, the personal estate of the decedent passes "to the personal representatives, and that he alone has title in law to them," and to afford to a legatee the right to bring an action at law to collect a debt belonging to the estate of the testator, without first deriving title from the personal representative. Strader v. Metropolitan Life Ins. Co., 128 Va. 238 , 105 S.E. 74 (1920).

CIRCUIT COURT OPINIONS

Standing. - Administratrix had standing under § 8.01-13 to bring an action for failure to defend against several insurers under an assignment of rights from a property manager, who had been the defendant in five settled wrongful death actions filed by the administratrix; further, the administratrix was the proper person to bring the previous wrongful death actions under § 8.01-50 , and she acted as the surrogate for the beneficiaries of a cause of action named in § 8.01-53 . Beckner v. Twin City Fire Ins. Co., 58 Va. Cir. 544, 2002 Va. Cir. LEXIS 175 (Roanoke 2002).

Because the underlying action was by an alleged assignee to enforce her right to recover the repayment of a loan, the assignee had standing to bring the action under § 8.01-13 . Faison v. Hughson, 80 Va. Cir. 96, 2010 Va. Cir. LEXIS 20 (Roanoke Jan. 22, 2010).

OPINIONS OF THE ATTORNEY GENERAL

Assignment of medical benefits payments. - Assignments of medical benefits payable under automobile insurance policies where the policyholder assigns these benefits to a chiropractor who provided treatment covered by the policy are enforceable. Provisions of insurance contracts seeking to limit or preclude this kind of assignment are unenforceable so long as the assignment does not materially alter the risk or obligation of the insurer. See opinion of Attorney General to The Honorable Bill Janis, Member, House of Delegates, 10-066, 2010 Va. AG LEXIS 54 (9/24/10).

§ 8.01-14. Suit against assignor.

Any assignee or beneficial owner may recover from any assignor of a writing; but only joint assignors shall be joined as defendants in one action. A remote assignor shall have the benefit of the same defense as if the suit had been instituted by his immediate assignee.

(Code 1950, § 8-95; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 2A M.J. Assignments, §§ 34, 37, 39, 47.

CASE NOTES

Action may be by motion against remote assignor. - Under former provisions an action could be maintained by motion by an assignee of a chose in action against a remote assignor thereof to recover money upon the contract implied by the assignment that he will repay the consideration received by him for the chose, if by the use of due diligence it cannot be made out of the obligor or maker. Long v. Pence, 93 Va. 584 , 25 S.E. 593 (1896) (decided under prior law).

Note necessary as evidence. - In a proceeding by an assignee of a note against a remote assignor to recover on the contract implied by the assignment, the note is a necessary piece of evidence for the plaintiff in order to prove the assignment, and also to show the measure of plaintiff's recovery. Long v. Pence, 93 Va. 584 , 25 S.E. 593 (1896) (decided under prior law).

§ 8.01-15. Suits by and against unincorporated associations or orders.

All unincorporated associations or orders may sue and be sued under the name by which they are commonly known and called, or under which they do business, and judgments and executions against any such association or order shall bind its real and personal property in like manner as if it were incorporated.

(Code 1950, § 8-66; 1962, c. 250; 1977, c. 617.)

REVISERS' NOTE.

Section 8.01-15 is the first sentence of former § 8-66; the second sentence of which regarding process was deleted as unnecessary in light of § 8.01-305 .

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Law review. - For survey of Virginia law on business associations for the year 1974-1975, see 61 Va. L. Rev. 1650 (1975).

For article on condominium association liability for failure to provide adequate security or maintenance in the common areas, see 22 U. Rich. L. Rev. 127 (1988).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Associations and Clubs, § 6; 3A M.J. Beneficial and Benevolent Associations, § 23; 11B M.J. Labor, § 5; 21A M.J. Words and Phrases.

Editor's note. - The cases cited below were decided under corresponding provisions of former law.

CASE NOTES

This section may be viewed as merely procedural. Hawthorne v. Austin Organ Co., 71 F.2d 945 (4th Cir.), cert. denied, 293 U.S. 623, 55 S. Ct. 237, 79 L. Ed. 710 (1934).

"Unincorporated association" defined. - The words "unincorporated association" denote a voluntary group of persons joined together by mutual consent for the purpose of promoting some stated objective. Such an association suggests an organized group made up of persons who become members of the association voluntarily, but subject to certain rules or bylaws; the members are customarily subject to discipline for violations or non-compliance with the rules of the association. Yonce v. Miners Mem. Hosp. Ass'n, 161 F. Supp. 178 (W.D. Va. 1958).

The word "association" as here used refers to associations such as trade unions, fraternal organizations, business organizations, and the like. Yonce v. Miners Mem. Hosp. Ass'n, 161 F. Supp. 178 (W.D. Va. 1958).

Capacity to sue or be sued does not necessarily imply standing. - The former version of this section specifically confers upon an unincorporated association the capacity to sue or be sued, but the fact that an association has capacity to sue does not necessarily imply that it also has standing to maintain a particular action. Richmond Black Police Officers Ass'n v. City of Richmond, 386 F. Supp. 151 (E.D. Va. 1974).

Name of organization should be used in actions. - An action to compel railway to recognize a labor organization as bargaining agent should be prosecuted in the name of the organization. Railway Employees' Dep't of Am. Fed'n of Labor v. Virginian Ry., 39 F. Supp. 354 (E.D. Va. 1941).

Authority to proceed with litigation. - The former version of this section contemplates that litigation brought pursuant thereto will be instituted by the officers of such unincorporated association or order who have charge of its affairs or by members of the association or order who have been legally authorized to proceed with the litigation. Brown v. Virginia Advent Christian Conference, 194 Va. 909 , 76 S.E.2d 240 (1953).

Real estate investment trust created under Chapter 9 of Title 6.1 is an "unincorporated association" within the meaning of the former version of this section, entitled to sue in its own name. Grenco Real Estate Inv. Trust v. Brooker, 215 Va. 413 , 211 S.E.2d 33 (1975).

The United Mine Workers of America Welfare and Retirement Fund is a trust and is not an unincorporated association in the sense contemplated by the former version of this section. Yonce v. Miners Mem. Hosp. Ass'n, 161 F. Supp. 178 (W.D. Va. 1958).

§ 8.01-15.1. Anonymous plaintiff; motion for identification; factors to be considered by court.

  1. In any legal proceeding commenced anonymously, any party may move for an order concerning the propriety of anonymous participation in the proceeding. The trial court may allow maintenance of the proceeding under a pseudonym if the anonymous litigant discharges the burden of showing special circumstances such that the need for anonymity outweighs the public's interest in knowing the party's identity and outweighs any prejudice to any other party. The court may consider whether the requested anonymity is intended merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a sensitive and highly personal matter; whether identification poses a risk of retaliatory physical or mental harm to the requesting party or to innocent nonparties; the ages of the persons whose privacy interests are sought to be protected; whether the action is against a governmental or private party; and the risk of unfairness to other parties if anonymity is maintained.
  2. If the court initially permits a party to proceed anonymously, the issue of the propriety of continued anonymous participation in the proceedings may be raised at any stage of the litigation when circumstances warrant a reconsideration of the issue. In all cases, all parties have the right to know the true identities of all other parties under such provisions of confidentiality as the court may deem appropriate.
  3. If the court orders that the anonymous litigant be identified, the pleadings and any relevant dockets shall be reformed to reflect the party's true name, and the identification shall be deemed to relate back to the date of filing of the proceeding by the anonymous party.
  4. In any legal proceeding in which a party is proceeding anonymously, the court shall enter appropriate orders to afford all parties the rights, procedures and discovery to which they are otherwise entitled.

    (2003, c. 572.)

Law review. - For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

CASE NOTES

Standing to bring federal claim. - Because plaintiff, classified as a sexually violent offender, alleged harm from not being able to access church property (due to Sunday schools) or the property of defendant school board under subsection A of § 18.2-370.5, but she had not attempted to petition a state court (which she could have done anonymously), the board, or the churches, for access as provided in §§ 8.01-15.1 and 18.2-370.5, she lacked standing to bring claims of constitutional violations under U.S. Const. amend. I and XIV, based on not being able to associate with the school community and not being able to attend churches of her choosing. Doe v. Va. Dep't of State Police, 713 F.3d 745, 2013 U.S. App. LEXIS 7403 (4th Cir. 2013), cert. denied, 134 S. Ct. 1538, 188 L. Ed. 2d 556, 2014 U.S. LEXIS 2190 (2014).

CIRCUIT COURT OPINIONS

Motion to proceed under a pseudonym denied. - Injured party's motion to proceed under a pseudonym in an action against a minister alleging sexual molestation and assault was denied, because the injured party failed to meet the requirements set out in § 8.01-15.1 , as the injured party failed to show that her identification posed a risk of retaliation, and allowing the injured party to proceed under a pseudonym could have caused a risk of unfairness to the minister. Doe v. Briscoe, 61 Va. Cir. 96, 2003 Va. Cir. LEXIS 50 (Roanoke 2003).

"Special circumstances" not proven. - Unnamed person did not satisfy any of the factors to weigh in order to satisfy the burden imposed under this section to show "special circumstances" that outweighed the public's interest in knowing the identity of a petitioner and prejudice to the petitioner to allow anonymity because § 46.2-208, which protected disclosure of driving records, applied only to Department of Motor Vehicles and not court proceedings. Doe v. Commonwealth, 85 Va. Cir. 419, 2012 Va. Cir. LEXIS 151 (Richmond Oct. 9, 2012).

§ 8.01-15.2. Servicemembers Civil Relief Act; default judgment; appointment of counsel.

  1. Notwithstanding the provisions of § 8.01-428 , in any civil action or proceeding in which the defendant does not make an appearance, the court shall not enter a judgment by default until the plaintiff files with the court an affidavit (i) stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or (ii) if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service. Subject to the provisions of § 8.01-3 , the Supreme Court shall prescribe the form of such affidavit, or the requirement for an affidavit may be satisfied by a written statement, declaration, verification or certificate, subscribed and certified or declared to be true under penalty of perjury. Any judgment by default entered by any court in any civil action or proceeding in violation of subchapter II of the Servicemembers Civil Relief Act (50 U.S.C. § 3901 et seq.) may be set aside as provided by the Act. Failure to file an affidavit shall not constitute grounds to set aside an otherwise valid default judgment against a defendant who was not, at the time of service of process or entry of default judgment, a servicemember as defined in 50 U.S.C. § 3911.
  2. Where appointment of counsel is required pursuant to 50 U.S.C. § 3931 or 3932 or another section of the Servicemembers Civil Relief Act, the court may assess reasonable attorney fees and costs against any party as the court deems appropriate, including a party aggrieved by a violation of the Act, and shall direct in its order which of the parties to the case shall pay such fees and costs. Such fees and costs shall not be assessed against the Commonwealth unless it is the party that obtains the judgment. Any attorney fees assessed pursuant to this subsection shall not exceed $125, unless the court deems a higher amount appropriate.
  3. The appointed counsel may issue a subpoena duces tecum for all discoverable electronic and print files, records, documents, and memoranda regarding the transactional basis for the suit. If requested in the subpoena, the plaintiff shall also deliver all documents or information concerning the location of the servicemember.
  4. Counsel appointed pursuant to the Servicemembers Civil Relief Act shall not be selected by the plaintiff or have any affiliation with the plaintiff. However, counsel for the plaintiff may provide a list of attorneys familiar with the provisions of the Servicemembers Civil Relief Act upon the request of the court.

    (2004, c. 381; 2005, c. 909; 2016, c. 643; 2019, c. 454.)

The 2005 amendments. - The 2005 amendment by c. 909 added the subsection A designator and subsection B; and in subsection A, substituted "Article 2" for "Title II" and "(50 U.S.C. app. § 527 et seq.)" for "(50 U.S.C. Appx. §§ 501 et seq.)" in the third sentence and added the fourth sentence.

The 2016 amendments. - The 2016 amendment by c. 643 updated references in the last two sentences in subsection A; rewrote the first sentence in subsection B, which formerly read: "Where appointment of counsel is required pursuant to 50 U.S.C. app. § 521 or 522, the court may assess attorneys' fees and costs against any party as the court deems appropriate, and shall direct in its order which of the parties to the case shall pay such fees and costs"; and added subsections C and D.

The 2019 amendments. - The 2019 amendment by c. 454 added the third sentence in subsection B.

Law review. - For 2003/2004 survey of family and juvenile law, see 39 U. Rich. L. Rev. 241 (2004).

For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, "Civil Practice and Procedure," see 40 U. Rich. L. Rev. 95 (2005).

Article 3. Death or Change of Parties.

§ 8.01-16. New parties may have continuance.

Except in the Supreme Court any new party to a case, whether he be joined or substituted, may in the discretion of the court have a continuance; and the court may allow him to plead anew or amend the pleadings so far as it deems reasonable, but in other respects the case shall proceed to final judgment or decree for or against him, in like manner as if he had been an original party to the case.

(Code 1950, § 8-150; 1977, c. 617.)

REVISERS' NOTE.

The substantive effect of the section remains the same as former § 8-150 whereby a continuance is discretionary with the trial court in any case where a new party is joined or substituted. With the abolition of the writ of scire facias, § 8.01-24 , the procedure will be by motion.

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Michie's Jurisprudence. - For related discussion, see 1A M.J. Abatement, Survival and Revival, §§ 34, 41, 44; 1B M.J. Amendments, § 2; 4A M.J. Continuances, § 21.

CASE NOTES

Former provisions of this section refers to such cases as are revived by an order entered in term. Stearns v. Richmond Paper Mfg. Co., 86 Va. 1034 , 11 S.E. 1057 (1890) (decided under prior law).

§ 8.01-17. When party whose powers cease is defendant.

When the party whose powers cease is defendant, the plaintiff may continue his suit against him to final judgment or decree; provided that a successor in interest may be substituted in accordance with the Rules of Court; and provided further that upon motion the court may order that the suit proceed against the former party as well as the successor.

(Code 1950, § 8-152; 1954, c. 333; 1977, c. 617.)

REVISERS' NOTE.

Section 8.01-17 follows former § 8-152 by giving a plaintiff the right to continue his action against a defendant whose powers have ceased, e.g., an executor who has died. The first proviso permits the appointment of a successor for such a defendant. See Rules 2:16 and 3:15. The second proviso permits the plaintiff, upon court order, to proceed against such defendant as well as his successor; former § 8-152 is expanded to permit this in law as well as equity.

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Cross references. - As to substitution of parties, see Rule 3:17.

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abatement, Survival and Revival, §§ 7, 8.

§ 8.01-18. When suit discontinued unless revived.

If the committee, personal representative, heir, or devisee of the plaintiff or appellant who was a party, or of the decedent whose personal representative was plaintiff or appellant, shall not make a motion for substitution of parties under the applicable Rules of Court within a reasonable time after there may have been a suggestion on the record of the fact making such motion proper, the suit of such plaintiff or appellant shall be discontinued, unless good cause be shown to the contrary.

(Code 1950, § 8-153; 1954, c. 333; 1977, c. 617.)

REVISERS' NOTE.

A "reasonable time" has been inserted for the substitution of parties under the Rules of Court. Otherwise minor language changes are made in the proposal without material change to former § 8-153.

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Cross references. - For rule of court governing substitution of parties, see Rule 3:17.

Law review. - For 2006 survey article, "Medical Malpractice Law," see 41 U. Rich. L. Rev. 231 (2006).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abatement, Survival and Revival, §§ 39, 40; 6A M.J. Dismissal, Discontinuance and Nonsuit, § 25; 7A M.J. Equity, § 96.

§ 8.01-19. Effect of marriage or change of name of party.

The marriage of a party shall not cause a suit or action to abate. If a party changes his name, upon affidavit or other proof of the fact, the suit or action shall proceed in the new name, but if the change of name be not suggested before judgment, the judgment shall be as valid, and may be enforced in like manner, as if no such change of name had taken place.

(Code 1950, § 8-147; 1973, c. 401; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abatement, Survival and Revival, § 17.

§ 8.01-20. Effect of marriage, change of name or death on appeal.

If at any time after verdict or judgment in the trial court during the pendency of an appeal or before the appeal is granted, the marriage, change of name or death of a party, or any other fact which might otherwise be relied on in abatement occurs, and such fact is suggested or relied on in abatement in the Court of Appeals or the Supreme Court, the court may, in its discretion, take or retain jurisdiction and enter judgment or decree in the case as if such event had not occurred.

(Code 1950, § 8-148; 1973, c. 401; 1977, c. 617; 1984, c. 703.)

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abatement, Survival and Revival, § 12; 1B M.J. Appeal and Error, §§ 40, 120.

Editor's note. - Most of the cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, may refer to former provisions.

CASE NOTES

Death after notice of appeal. - Where plaintiff's death occurred after the trial court lost jurisdiction of his action and after the notice of appeal had been filed, the appeal was ordered to proceed in the decedent's name as if the death had not occurred. Locke v. Johns-Manville Corp., 221 Va. 951 , 275 S.E.2d 900 (1981).

Death after appeal allowed. - Where an appeal is allowed or writ of error awarded before the death of a party to a suit or action, the case is from that moment a case pending in the appellate court, and under this section there is no abatement in the appellate court because of the death. The same was very nearly true at common law. The statute effected no other change in the procedure than that it expressly leaves it to the discretion of the appellate court, where the death is made known to such court and is suggested on its record, to proceed with the case and enter judgment or decree as if such death had not occurred; whereas prior to the statute, a practice had grown up requiring, in case of death of either party, if made known to the appellate court and suggested on its record, a revival of the appeal or writ of error by consent. Poff v. Poff, 128 Va. 62 , 104 S.E. 719 (1920).

Although the appellant died during the pendency of an appeal, the appeal did not abate. The Supreme Court of Virginia retained jurisdiction and entered judgment as if such event had not occurred. Kambis v. Considine, 290 Va. 460 , 778 S.E.2d 117, 2015 Va. LEXIS 165 (2015).

Death before appeal allowed. - Where the death of a party to a suit or action occurs before an appeal is allowed or writ of error is awarded, the suit or action abates as to the deceased party. If an appeal or writ of error is sought in behalf of the estate of such deceased party, the application must be made by petition of his representative. Poff v. Poff, 128 Va. 62 , 104 S.E. 719 (1920).

An appeal or writ of error cannot be granted to one who is dead and the appellate court is without authority under this section to enter judgment in a case in which the appellate proceedings were begun after the death of the alleged plaintiff in error. Booth v. Dotson, 93 Va. 233 , 24 S.E. 935 (1896).

Applicability. - Va. Code Ann. § 8.01-20 has no application when a death occurs before an appeal or writ of error is awarded. Loewinger v. Estate of Loewinger, 64 Va. App. 1, 763 S.E.2d 826, 2014 Va. App. LEXIS 345 (Oct. 21, 2014).

Divorce suit. - In a suit for divorce by a wife against her husband, the trial court decreed a divorce to the husband on his cross-bill. The husband died pending appeal by his wife after the case was argued and submitted to the Supreme Court. By virtue of this section the appellate court may, in its discretion, enter its decree dealing with the adjudications of the original decree as if no death of any party to the cause had occurred. Cumming v. Cumming, 127 Va. 16 , 102 S.E. 572 (1920).

Suggestion of bankruptcy. - In a proceeding for refund of taxes a District of Columbia corporation obtained a decree declaring an Arlington County license tax invalid and a refund was paid by the county. Pending the county's appeal counsel for the corporation filed a suggestion of bankruptcy and made a motion for dismissal. The rules of court being inapplicable to actions for refund of taxes, it was held under this section that the mere suggestion of bankruptcy when no motion had been made to substitute the trustee and no formal proof of bankruptcy or any stay order by the bankruptcy court had been offered did not justify dismissal of the appeal. County Bd. v. Kent Stores of Wash., Inc., 196 Va. 929 , 86 S.E.2d 44 (1955).

Applied in Norfolk & P. Belt Line R.R. v. Barker, 221 Va. 924 , 275 S.E.2d 613 (1981); Lawrence v. Wirth, 226 Va. 408 , 309 S.E.2d 315 (1983); Hogan v. Carter, 226 Va. 361 , 310 S.E.2d 666 (1983); Morris v. Mosby, 227 Va. 517 , 317 S.E.2d 493 (1984); Utsch v. Utsch, 266 Va. 124 , 581 S.E.2d 507, 2003 Va. LEXIS 57 (2003).

§ 8.01-20.1. Certification of expert witness opinion at time of service of process.

Every motion for judgment, counter claim, or third party claim in a medical malpractice action, at the time the plaintiff requests service of process upon a defendant, or requests a defendant to accept service of process, shall be deemed a certification that the plaintiff has obtained from an expert witness whom the plaintiff reasonably believes would qualify as an expert witness pursuant to subsection A of § 8.01-581.20 a written opinion signed by the expert witness that, based upon a reasonable understanding of the facts, the defendant for whom service of process has been requested deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed. This certification is not necessary if the plaintiff, in good faith, alleges a medical malpractice action that asserts a theory of liability where expert testimony is unnecessary because the alleged act of negligence clearly lies within the range of the jury's common knowledge and experience.

The certifying expert shall not be required to be an expert witness expected to testify at trial nor shall any defendant be entitled to discover the identity or qualifications of the certifying expert or the nature of the certifying expert's opinions. Should the certifying expert be identified as an expert expected to testify at trial, the opinions and bases therefor shall be discoverable pursuant to Rule 4:1 of the Rules of Supreme Court of Virginia with the exception of the expert's status as a certifying expert.

Upon written request of any defendant, the plaintiff shall, within 10 business days after receipt of such request, provide the defendant with a certification form that affirms that the plaintiff had obtained the necessary certifying expert opinion at the time service was requested or affirms that the plaintiff did not need to obtain a certifying expert witness opinion. The court, upon good cause shown, may conduct an in camera review of the certifying expert opinion obtained by the plaintiff as the court may deem appropriate. If the plaintiff did not obtain a necessary certifying expert opinion at the time the plaintiff requested service of process on a defendant as required under this section, the court shall impose sanctions according to the provisions of § 8.01-271.1 and may dismiss the case with prejudice.

(2005, cc. 649, 692; 2007, c. 489; 2013, cc. 65, 610.)

The 2007 amendments. - The 2007 amendment by c. 489 inserted "or requests a defendant to accept service of process" preceding "shall be deemed" in the first sentence of the first paragraph; and inserted "or qualifications" following "identity" in the first sentence of the second paragraph.

The 2013 amendments. - The 2013 amendments by cc. 65 and 610 are identical, and added the second sentence of the third paragraph.

Law review. - For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, "Civil Practice and Procedure," see 40 U. Rich. L. Rev. 95 (2005).

For 2006 survey article, "Medical Malpractice Law," see 41 U. Rich. L. Rev. 231 (2006).

For 2007 annual survey article, "Civil Practice and Procedure," see 42 U. Rich. L. Rev. 229 (2007).

For 2007 annual survey article, "Health Care Law," see 42 U. Rich. L. Rev. 441 (2007).

For annual survey of Virginia law article, "Civil Practice and Procedure," see 47 U. Rich. L. Rev. 113 (2012).

For Survey article, "Civil Practice and Procedure," see 48 U. Rich. L. Rev. 1 (2013).

For essay, "Nonsuit in Virginia Civil Trials," see 48 U. Rich. L. Rev. 265 (2013).

CASE NOTES

Expert testimony required to prove medical malpractice. - In a Federal Tort Claims Act (FTCA), 28 U.S.C.S. § 2671 et seq., action, an inmate alleged that the prison medical staff negligently failed to diagnose and treat his neurological impairment; however, the undisputed facts demonstrated: (i) that the inmate did not comply with Virginia's expert certification requirement, § 8.01-20.1 ; and (ii) that the inmate could not establish medical malpractice without the aid of expert testimony, as the matter was not one in which the act or omission was clearly negligent within the common knowledge of laymen. In essence, the case foundered on the absence of an expert witness for the inmate and the government's motion for summary judgment was granted. Parker v. United States, 475 F. Supp. 2d 594, 2007 U.S. Dist. LEXIS 12760 (E.D. Va. 2007), aff'd, 2007 U.S. App. LEXIS 24838 (4th Cir. Va. 2007).

Circuit court properly dismissed, with prejudice, a patient's medical malpractice action against a family practice physician because the patient failed to designate an expert to testify concerning proximate causation of her injuries where, although the patient alleged that the physician engaged in conduct involving unsolicited and unwanted sexual comments and innuendo and made vulgar and inappropriate comments that aggravated her preexisting conditions of post-traumatic stress disorder, fibromyalgia, depression, and radiculopathy, a lay jury was not equipped from common experience with the knowledge of what could cause the aggravation of complex preexisting medical problems. Summers v. Syptak, 293 Va. 606 , 801 S.E.2d 422 (2017).

Expert certification of merit required. - Inmate's allegations did not meet the exception to excuse him from providing an expert certification of merit, under § 8.01-20.1 , because the inmate's assertions did not lie within the range of common knowledge and experience because the inmate questioned a quintessential professional medical judgment, namely testing and diagnosing digestive disorders. Moody v. DeJesus,, 2009 U.S. Dist. LEXIS 9473 (W.D. Va. Jan. 23, 2009).

Procedural requirements satisfied. - Plaintiff's medical malpractice claim against VA surgical team members complied with the procedural requirements of the Virginia Medical Malpractice Act (VMMA) where, before serving the United States, he obtained written opinions from at least two board-certified orthopedic surgeons, which opined that others in the operating suite also breached the standard of care during plaintiff's surgery and that VA medical center operating room personnel deviated from the standard of care. Blankenship v. United States, 111 F. Supp. 3d 745, 2015 U.S. Dist. LEXIS 67036 (W.D. Va. 2015).

In a Federal Tort Claims Act in which the government moved to dismiss, contrary to the government' assertion, the federal inmate's amended complaint complied with the Virginia Medical Malpractice Act certification requirement and the court's order. Sowers v. United States, 141 F. Supp. 3d 471, 2015 U.S. Dist. LEXIS 130972 (E.D. Va. 2015).

Applied in Bowman v. Concepcion, 283 Va. 552 , 722 S.E.2d 260, 2012 Va. LEXIS 38 (2012).

CIRCUIT COURT OPINIONS

Failure to comply with statutory requirements. - Because a patient never responded to a dentist's written request to provide an expert witness certification form, the patient did not comply with the statutory requirements of § 8.01-20.1 ; consequently, the patient's malpractice action was dismissed. Wallace v. Farah, 72 Va. Cir. 37, 2006 Va. Cir. LEXIS 275 (Spotsylvania County 2006).

Certifying opinion not discoverable. - Certifying opinion of plaintiff's expert was not discoverable, as under § 8.01-20.1 a certifying expert was to remain confidential even after the expert was designated to testify at trial under Va. Sup. Ct. R. 4:1; the expert's certifying opinions and the basis for those opinions were not discoverable under Va. Sup. Ct. R. 4:1 and remained confidential. Grimaldi v. Burgess, 78 Va. Cir. 104, 2009 Va. Cir. LEXIS 13 (Fairfax County 2009).

Defendant had no right to verification of certification. - As a podiatrist filed an answer to a patient's malpractice suit without having been served with the complaint or having been requested to formally waive service, he was not entitled to demand verification of the expert witness certification under § 8.01-20.1 . Lents v. Vetter, 80 Va. Cir. 268, 2010 Va. Cir. LEXIS 51 (Fairfax County Apr. 2, 2010).

Expert certification of merit required. - Granting a demurrer of a former patient's action against health care providers was appropriate because the patient failed to allege that the patient was damaged by health care providers' actions in that the patient failed to show, through expert certification, or otherwise, that the partial knee replacement which the patient sought, but which the health care providers declined to provide the patient, was necessary and that the patient could not obtain a comparable surgery from another doctor. Rundle v. Carter, 91 Va. Cir. 177, 2015 Va. Cir. LEXIS 171 (Norfolk Sept. 17, 2015).

When a decedent's estate sued defendant nursing facility for negligence and wrongful death based on the decedent's alleged fall on a wet floor while a patient at the facility, the estate had to pay the facility's fees and costs incurred in moving to dismiss for lack of an expert certification because the allegations of the complaint directly implicated decisions regarding supervision, treatment, and control over the decedent, placing the allegations within the ambit of the Medical Malpractice Act, requiring a sanction. Donnelly v. Autumn Corp., 95 Va. Cir. 216, 2017 Va. Cir. LEXIS 41 (Chesapeake Feb. 27, 2017).

Dismissal of a complaint that was brought by the administrator of a decedent's estate against a senior-care facility at which the decedent was a patient was appropriate because the case was a medical malpractice case and the administrator failed to obtain an expert certification of merit. Webb v. Patrick Henry Hosp., Inc.,, 2021 Va. Cir. LEXIS 57 (Newport News Mar. 30, 2021).

Certification proper. - Administratrix's counsel could reasonably believe his expert was qualified to offer an opinion about those who provided post-operative care because hospital employees preformed procedures within the expert's field of knowledge; given the expert's specialty and the fact that all employees discharged responsibilities about which he would appear to be qualified to testify, the employees, hospital, and medical practice failed to show he was not qualified to provide the certification. Wilder v. Children's Hosp. of the King's Daughters,, 2017 Va. Cir. LEXIS 172 (Norfolk Sept. 20, 2017).

Contents and timing of an expert opinion satisfied the statute because an administratrix's counsel obtained the required certification letter prior to requesting service on a hospital, medical practice, and hospital employees, albeit not prior to requesting preparation of summonses; the hospital, practice, and employee did not advance any authority to support the position that receipt after the request for summonses but prior to delivery for service violated the statute. Wilder v. Children's Hosp. of the King's Daughters,, 2017 Va. Cir. LEXIS 172 (Norfolk Sept. 20, 2017).

Executor had obtained written certifications from experts opining that the medical facilities and medical providers had deviated from the applicable standard of care and that the deviation proximately caused the decedent's alleged injuries as required by § § 8.01-20.1 and 8.01-50.1 where a surgeon met the statutory requirements for licensure, her certification and practice in wound care at skilled nursing facilities potentially qualified her as a specialist who knew the applicable standards of care, and her experience significantly overlapped with the responsibilities of nurses, the nursing home administrator, and dietician. Clarke v. Med. Facilities of Am., Inc.,, 2021 Va. Cir. LEXIS 86 (Norfolk Apr. 20, 2021).

Expert certification not required. - Facility's motion for in camera review and to dismiss were overruled, as the cause of action did not fall within the scope of the Virginia Medical Malpractice Act and therefore expert certification pursuant to § 8.01-20.1 was not required. Martin v. Salvaggio, 92 Va. Cir. 339, 2016 Va. Cir. LEXIS 45 (Lynchburg Feb. 26, 2016).

Relevance of hospital policies, protocols, and procedures. - Hospital's CT scan protocols were not privileged under § 8.01-581.17 because the phrase "all communications" in § 8.01-581.17 was limited to the enumerated "proceedings, minutes, records, and reports," and the protocols were relevant in a patient's proceeding to gather adequate information to obtain an expert to make a § 8.01-20.1 certification. Jones v. Perez (In re Jones), 81 Va. Cir. 52, 2010 Va. Cir. LEXIS 278 (Chesapeake Oct. 26, 2010).

Waiver of rights by defendant. - Defendant's motion to dismiss the lawsuit after plaintiff did not obtain service on defendant when plaintiff re-filed the lawsuit was denied because defendant had waived rights available to defendant under § 8.01-20.1 when defendant waived service of process by making a valid general appearance in the case. Nance v. Secours, 70 Va. Cir. 52, 2005 Va. Cir. LEXIS 313 (Henrico County 2005).

§ 8.01-21. Judgment when death or disability occurs after verdict but before judgment.

When a party dies, or becomes convicted of a felony or insane, or the powers of a party who is a personal representative or committee cease, if such fact occurs after verdict, judgment may be entered as if it had not occurred.

(Code 1950, § 8-145; 1977, c. 617.)

Cross references. - For rule of court as to substitution of parties, see Rule 3:17.

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abatement, Survival and Revival, §§ 12, 30; 5C M.J. Death by Wrongful Act, § 4.

CASE NOTES

Purpose. - The clear purpose of this section is to eliminate the wastefulness of retrying an action which has been completely litigated. Boyd v. Bulala, 647 F. Supp. 781 (W.D. Va. 1986), aff'd in part, rev'd in part, 877 F.2d 1191 (4th Cir. 1989); Bulala v. Boyd, 239 Va. 218 , 389 S.E.2d 670 (1990).

Sections 8.01-21 , 8.01-25 , 8.01-50 , and 8.01-56 compared. - The requirements of the survival and wrongful death statutes, §§ 8.01-25 , 8.01-50 and 8.01-56 , apply when the death occurs before a final verdict, whereas this section applies where the death occurs after the verdict. Boyd v. Bulala, 647 F. Supp. 781 (W.D. Va. 1986), aff'd in part, rev'd in part, 877 F.2d 1191 (4th Cir. 1989); Bulala v. Boyd, 239 Va. 218 , 389 S.E.2d 670 (1990).

Sections 8.01-25 and 8.01-56 are not in conflict with this section. They were enacted to extend the application of § 8.01-50 , the wrongful death statute, those situations not covered by the original Lord Campbell's Act, in which a plaintiff who has filed an action for personal injuries, dies of those injuries before a verdict is returned. It was unnecessary at common law to amend, revive, or convert the action of the party who survived the return of a verdict, and it is equally unnecessary under the present statutory scheme. Bulala v. Boyd, 239 Va. 218 , 389 S.E.2d 670 (1990).

Death of child after medical malpractice verdict. - Death of a child born with birth defects after a medical malpractice verdict did not require converting her claim into one for wrongful death. This section directly so provides, by directing that in such cases, "judgment may be entered as if [death] had not occurred." Sections 8.01-25 and 8.01-56 are not in conflict. They deal with the situation where death occurs before verdict. Boyd v. Bulala, 905 F.2d 764 (4th Cir. 1990).

Death of plaintiff after trial not grounds for new trial or admission of new evidence. - Motion by defendant in medical malpractice action either to grant a new trial or to open the record to admit new evidence, which motion was prompted by the death of the infant plaintiff some six weeks after the trial, on grounds that had she died before trial, the parents could not have recovered certain elements of damages, including her future medical costs, was denied. Under Federal Rules of Civil Procedure 59 and 60(b)(2), newly discovered evidence must pertain to facts which existed at the time of trial. Were the rule otherwise, litigation would never end. Moreover, this section specifically provides for the entry of judgment when a party dies after the verdict. Boyd v. Bulala, 672 F. Supp. 915 (W.D. Va. 1987).

Convict's privilege to waive appointment of committee. - There are no statutes or rules to deny a convict, already within the civil jurisdiction of the court at the time of his felony conviction and incarceration, the privilege of waiving the appointment of a committee and proceeding to trial and judgment in a law action in which he is represented by counsel of his own choosing. Dunn v. Terry, 216 Va. 234 , 217 S.E.2d 849 (1975) (decided under prior law).

§ 8.01-22. When death or disability occurs as to any of several plaintiffs or defendants.

If a party plaintiff or defendant becomes incapable of prosecuting or defending because of death, insanity, conviction of felony, removal from office, or other reason and there are one or more co-plaintiffs or co-defendants, the court on motion may in its discretion either (i) suspend the case until a successor in interest is appointed in accordance with the Rules of Court, or (ii) sever the action or suit so that the case shall proceed against the remaining parties without delay, with the case as to the former party being continued and tried separately against the successor in interest when he is substituted as provided by the Rules of Court.

(Code 1950, § 8-146; 1977, c. 617.)

REVISERS' NOTE.

Since Rules 2:16 and 3:15 provide an adequate procedure for substitution of a party if he dies, etc., former § 8-146 is altered to give the court discretion to halt the entire proceedings pending the appointment of a successor or to permit the action to proceed against the living parties severing the decedent and preserving a separate action as to him.

Since § 8.01-25 provides that all actions survive, the provision in former § 8-146 regarding the question of survivability has been deleted.

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Cross references. - For rule of court as to substitution of parties, see Rule 3:17.

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abatement, Survival and Revival, §§ 11, 28, 34, 38.

CASE NOTES

Before appeal is allowed. - Where the death of a party to a suit or action occurs before an appeal is allowed or writ of error is awarded, the suit or action abates as to the deceased party. If an appeal or writ of error is sought in behalf of the estate of such deceased party, the application must be made by petition of his representative. Poff v. Poff, 128 Va. 62 , 104 S.E. 719 (1920) (decided under prior law).

Convict's privilege to waive appointment of committee. - There are no statutes or rules to deny a convict, already within the civil jurisdiction of the court at the time of his felony conviction and incarceration, the privilege of waiving the appointment of a committee and proceeding to trial and judgment in a law action in which he is represented by counsel of his own choosing. Dunn v. Terry, 216 Va. 234 , 217 S.E.2d 849 (1975) (decided under prior law).

Ejectment. - Husband and wife brought an action of ejectment to recover land. It did not abate when the husband died, but upon his death the cause of action survived to his wife. McMurray v. Dixon, 105 Va. 605 , 54 S.E. 481 (1906) (decided under prior law).

§ 8.01-23. Decree in suit when number of parties exceeds 30 and one of them dies.

When, in any suit involving a decedent's estate or a trust, the number of parties exceeds 30, and any one of the parties jointly interested with others in any question arising therein, dies, the court may, notwithstanding, if in its opinion all classes of interests are represented and no one will be prejudiced thereby, proceed to render a decree in such suit as if such party were alive; decreeing to the heirs, devisees, legatees, distributees, or personal representatives, as the case may be, such interest as the deceased person, if alive, would be entitled to. The provisions of § 8.01-322 shall apply to decrees entered hereunder.

(Code 1950, §§ 8-155, 8-156; 1977, c. 617; 2005, c. 681.)

REVISERS' NOTE.

Section 8.01-23 combines former §§ 8-155 and 8-156.

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The 2005 amendments. - The 2005 amendment by c. 681, effective January 1, 2006, substituted "involving a decedent's estate or a trust" for "in equity," substituted "dies" for "shall die" and made a minor stylistic change.

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abatement, Survival and Revival, § 11.

Article 4. Writ of Scire Facias Abolished.

§ 8.01-24. Writ of scire facias abolished; substitutes therefor.

The writ of scire facias is hereby abolished. Relief heretofore available by scire facias may be obtained by appropriate action or motion pursuant to applicable statutes and Rules of Court.

(1977, c. 617.)

REVISERS' NOTE.

Scire facias is a cumbersome, obsolete writ which is little understood and whose objectives can be better served by a more direct form of pleading. Thus the writ is abolished and replaced by the motion.

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Michie's Jurisprudence. - For related discussion, see 1A M.J. Abatement, Survival and Revival, § 41; 1A M.J. Agreed Case, § 5; 2B M.J. Bail and Recognizance, § 30; 11A M.J. Judgments and Decrees, §§ 50, 159; 14B M.J. Pleading, § 26; 16 M.J. Scire Facias, § 2.

Chapter 3. Actions.

Survival and Assignment of Causes of Actions.

Actions on Contracts Generally.

Injury to Person or Property.

Defamation.

Death by Wrongful Act.

Injuries to Railroad Employees.

Motor Vehicle Accidents.

Lien for Hospital, Medical and Nursing Services.

Actions for the Sale, Lease, Exchange,

Redemption and Other Disposition

of Lands of Persons Under

a Disability.

Partition.

Sale, Lease, or Exchange of Certain Estates in Property.

General Provisions for Judicial Sales.

Detinue.

Unlawful Entry and Detainer.

Warrants in Distress.

Ejectment.

Improvements.

Waste.

Establishing Boundaries to Land.

Declaratory Judgments.

Recovery of Claims Against the Commonwealth of Virginia.

Tort Claims Against the Commonwealth of Virginia.

Compensation for Wrongful Incarceration for a Felony Conviction.

Actions by the Commonwealth.

Virginia Fraud Against Taxpayers Act.

Change of Name.

Miscellaneous Provisions.

Year 2000 Liability and Damages.

Drug Dealer Liability Act.

Space Flight Liability and Immunity Act.

Winter Sports Safety Act.

Article 1. Survival and Assignment of Causes of Actions.

§ 8.01-25. Survival of causes of action.

Every cause of action whether legal or equitable, which is cognizable in the Commonwealth of Virginia, shall survive either the death of the person against whom the cause of action is or may be asserted, or the death of the person in whose favor the cause of action existed, or the death of both such persons. Provided that in such an action punitive damages shall not be awarded after the death of the party liable for the injury. Provided, further, that if the cause of action asserted by the decedent in his lifetime was for a personal injury and such decedent dies as a result of the injury complained of with a timely action for damages arising from such injury pending, the action shall be amended in accordance with the provisions of § 8.01-56 .

As used in this section, the term "death" shall include the death of an individual or the termination or dissolution of any other entity.

(Code 1950, § 8-628; 1950, p. 948; 1952, c. 378; 1954, c. 607; 1964, c. 34; 1977, c. 617.)

REVISERS' NOTE.

The section removes various limitations imposed by case and statutory law and provides that all causes of action survive the death of the plaintiff or defendant. Cf. § 64.1-145. Thus the former problem of determining what was indirect and direct injury to property has been eliminated and with it the question of determining whether there was a statute of limitations of one or five years. Compare, e.g., Cover v. Critcher, 143 Va. 357 , 130 S.E. 238 (1925), with Trust Co. v. Fletcher, 152 Va. 868 , 148 S.E. 785 (1929), and Worrie v. Boze, 198 Va. 533 , 95 S.E.2d 192, aff'd on rehearing, 198 Va. 891 , 96 S.E.2d 799 (1957). See Herndon v. Wickham, 198 Va. 824 , 97 S.E.2d 5 (1957) and annotations under former §§ 8-628.1 and 8-24.

The first proviso pertaining to the award of punitive damages codifies case law. See Dalton v. Johnson, 204 Va. 102 , 129 S.E.2d 647 (1963).

The second proviso codifies case law that the Virginia wrongful death statute is not a "survival" statute but creates a new right in the personal representative of the decedent who dies as a result of a previous tortious injury. Grady v. Irvine, 254 F.2d 224 (4th Cir.), cert. denied, 358 U.S. 819, 79 S. Ct. 30, 3 L. Ed. 2d 60 (1958); Wilson v. Whittacker, 207 Va. 1032 , 154 S.E.2d 124 (1967).

Formerly, in the absence of statute, only causes of action which survive may be assigned. Winston v. Gordon, 115 Va. 899 , 80 S.E. 756 (1914); City of Richmond v. Hanes, 203 Va. 102 , 122 S.E.2d 895 (1961). Assignability has been separated from survivability. See § 8.01-26 .

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Cross references. - As to action for goods carried away, or for waste, destruction of, or damage to estate of decedent, see § 64.2-520.

Law review. - For discussion of wrongful death action and special damages, see 47 Va. L. Rev. 354 (1961). For survey of Virginia law on torts for the year 1969-1970, see 56 Va. L. Rev. 1419 (1970). For survey of Virginia commercial law for the year 1972-1973, see 59 Va. L. Rev. 1426 (1973). For survey of Virginia law on practice and pleading for the year 1976-77, see 63 Va. L. Rev. 1459 (1977).

For article, "Civil Rights and 'Personal Injuries': Virginia's Statute of Limitations for Section 1983 Suits," see 26 Wm. & Mary L. Rev. 199 (1985).

For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

For 2007 annual survey article, "Civil Practice and Procedure," see 42 U. Rich. L. Rev. 229 (2007).

For essay "Bifurcation of Civil Trials," see 45 U. Rich. L. Rev. 1 (2010).

For note, "The Vote From Beyond the Grave," see 51 Wm. and Mary L. Rev. 1583 (2010).

For Survey article, "Civil Practice and Procedure," see 48 U. Rich. L. Rev. 1 (2013).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abatement, Survival and Revival, §§ 10, 28, 30, 31, 32, 41; 1A M.J. Actions, § 25; 2A M.J. Assignments, § 14; 5C M.J. Damages, §§ 15, 30; 5C M.J. Death by Wrongful Act, §§ 4, 8, 16; 8A M.J. Executors and Administrators, § 64; 12A M.J. Limitation of Actions, § 19.

Editor's note. - Some of the cases below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

Legislative intent. - It was the obvious intent of the legislature to give to survivors of decedents the cause of action set forth in this section rather than have it expire upon the death of the party having same. In re Musgrove, 7 Bankr. 892 (Bankr. W.D. Va. 1981).

The sweeping language of the opening sentence of this section manifests an intent to preserve a right of recovery after the death of either or both of the parties in interest, while the subsequent limiting language has the effect of confining wrongful death relief to that allowable under the wrongful death statutes. Miltier v. Beorn, 696 F. Supp. 1086 (E.D. Va. 1988).

Sections 8.01-21 , 8.01-50 , 8.01-56 and this section compared. - The requirements of the survival and wrongful death statutes, §§ 8.01-50 , 8.01-56 and this section, apply when the death occurs before a final verdict, whereas § 8.01-21 applies where the death occurs after the verdict. Boyd v. Bulala, 647 F. Supp. 781 (W.D. Va. 1986), rev'd on other grounds, 877 F.2d 1191 (4th Cir. 1989).

This section and § 8.01-56 are not in conflict with § 8.01-21 . They were enacted to extend the application of § 8.01-50 , the wrongful death statute, those situations not covered by the original Lord Campbell's Act, in which a plaintiff who has filed an action for personal injuries, dies of those injuries before a verdict is returned. It was unnecessary at common law to amend, revive, or convert the action of the party who survived the return of a verdict, and it is equally unnecessary under the present statutory scheme. Bulala v. Boyd, 239 Va. 218 , 389 S.E.2d 670 (1990).

Death of a child born with birth defects after a medical malpractice verdict did not require converting her claim into one for wrongful death. Section 8.01-21 directly so provides, by directing that in such cases, "judgment may be entered as if [death] had not occurred." This section and § 8.01-56 are not in conflict. They deal with the situation where death occurs before verdict. Boyd v. Bulala, 905 F.2d 764 (4th Cir. 1990).

Section changes common law. - Prior to this section, no action for personal injuries not resulting in death could be maintained against the wrongdoer unless such action was brought by the injured party prior to his death. Predecessor versions of this section changed this rule of common law. Sherley v. Lotz, 200 Va. 173 , 104 S.E.2d 795 (1958) (decided under prior law).

Statute of limitations not changed. - There was no intent on the part of the legislature when it enacted the former version of this section to change the statute of limitations from one to five years on causes of action for personal injury. Herndon v. Wickham, 198 Va. 824 , 97 S.E.2d 5 (1957); Sherley v. Lotz, 200 Va. 173 , 104 S.E.2d 795 (1958) (decided under prior law).

Standing. - Testator's daughters did not have standing to bring the claims asserted because the testator's son remained the personal representative of the testator's estate, and he was the only party entitled to bring suit on behalf of the estate; the daughters' claims relating to the rescission of inter vivos transfers were inherently on behalf of the estate as they would have belonged to the testator during his lifetime. Platt v. Griffith,, 2021 Va. LEXIS 59 (May 27, 2021).

The cause of action that this section provides shall not be lost is not a new cause. Bagley v. Weaver, 211 Va. 779 , 180 S.E.2d 686 (1971) (decided under prior law).

It is the same cause of action that an injured person was prosecuting or could have prosecuted prior to his death from an unrelated cause. Bagley v. Weaver, 211 Va. 779 , 180 S.E.2d 686 (1971) (decided under prior law).

Actions that survive must exist prior to decedent's death. - Survival of actions is limited to those that "existed" prior to a decedent's death; where estate executor alleged that legal malpractice in drafting the decedent's testamentary instruments had caused the estate additional tax liability, since damages due to the alleged legal malpractice did not arise until after the decedent's death, the cause of action did not survive and its dismissal was affirmed. Rutter v. Jones, Blechman, Woltz & Kelly, P.C., 264 Va. 310 , 568 S.E.2d 693, 2002 Va. LEXIS 101 (2002).

Choice of recovery theory in malpractice action. - The plain language contained in this section and § 8.01-56 unequivocally mandates that a person may not recover for the same injury under the survival statute and the wrongful death statute. There can be but one recovery. Hence, the plaintiffs, as a matter of law, could not have recovered in the underlying tort action against defendants on both theories of wrongful death and survival. Therefore, in malpractice action, at an appropriate time after discovery has been completed, the plaintiffs must be required to elect whether they will proceed against the defendant attorneys on the theory that the attorneys breached a duty owed to the plaintiffs in the prosecution of the wrongful death action or breached a duty owed to the plaintiffs in the prosecution of the survival action. Hendrix v. Daugherty, 249 Va. 540 , 457 S.E.2d 71 (1995).

Although the administrators and the health care provider agreed that the administrators filing a medical malpractice action against the health care providers had to elect between recovering under their survival action claim pursuant to § 8.01-25 and wrongful death claim under § 8.01-50 , which position also was supported under § 8.01-56 , the administrators were entitled to present their claim to the jury and have the jury decide the issue of causation before the administrators had to make that election. As a result, the administrators could recover monetary damages awarded by the jury involving the survival act claim, especially since the verdict awarding no damages on the wrongful death claim understood it could not award damages under both theories. Centra Health, Inc. v. Mullins, 277 Va. 59 , 670 S.E.2d 708, 2009 Va. LEXIS 3 (2009).

Executor of decedent's estate could not seek accounting as to events occurring after decedent's death. - Executor of a decedent's estate could not seek an accounting from trustees of a marital trust for the decedent's tangible personal property that was allegedly removed after his death, because § 8.01-25 permits survival only of causes of action existing at the time of the decedent's death. Campbell v. Harmon, 271 Va. 590 , 628 S.E.2d 308 (2006).

Action for an accounting by trustees. - Executor of the estate of a decedent who was a lifetime beneficiary of a marital trust had standing to seek an accounting from the trustees as to their administration of the trust during the decedent's lifetime, because he succeeded to the decedent's § 8.01-31 right to an accounting by virtue of the survival provisions of this section. Campbell v. Harmon, 271 Va. 590 , 628 S.E.2d 308 (2006).

Coexistence of wrongful death and 42 U.S.C. § 1983 claims. - The structural relationship between this section and § 8.01-50 shows that under Virginia law, a wrongful death claim can peaceably coexist with a 42 U.S.C. § 1983 claim. Miltier v. Beorn, 696 F. Supp. 1086 (E.D. Va. 1988).

This section defers to the wrongful death statute as the exclusive statement of the grievances that Virginia will recognize when a tort victim dies of her injuries. El-Meswari v. Washington Gas Light Co., 785 F.2d 483 (4th Cir. 1986).

Under Virginia law, a person could not recover for the same injury under the survival statute and the wrongful death statute if that injury or wrongful act resulted in the victim's death; because decedent's daughter had already recovered under the Virginia Wrongful Death Act in a state proceeding, plaintiff could not recover under the Maryland Survival Act, and the district court did not err in concluding that Virginia law barred plaintiff from proceeding under the Maryland Survival Act. Jones v. Prince George's County,, 2009 U.S. App. LEXIS 26678 (4th Cir. Dec. 8, 2009).

Under the new statutory scheme, survivability no longer is germane in determining which statute of limitations applies. This section provides that all causes of action survive the death of the plaintiff or defendant. Moreover, the problem of determining direct or indirect injury has been eliminated. Former § 64.1-145 provided, in part, that: "Any action at law for damages for the . . . destruction of, or damage to any estate of or by the decedent, whether such damage be direct or indirect, may be maintained by or against the decedent's personal representative. Any such action shall survive pursuant to § 8.01-25 ." Now, under the straightforward provisions of § 8.01-243 B, "[e]very" action for "injury to property" is governed by a five-year statute of limitations. Pigott v. Moran, 231 Va. 76 , 341 S.E.2d 179 (1986).

Recovery for mental anguish, pain, and suffering permitted. - It was the intent of the General Assembly to permit a recovery for mental anguish, pain, and suffering in causes of action preserved by the former version of this section. Bagley v. Weaver, 211 Va. 779 , 180 S.E.2d 686 (1971) (decided under prior law).

Evidence to support action for such recovery. - In view of the express elimination of the language which before 1964 excluded a recovery for mental anguish, pain and suffering, the same kind of evidence would be necessary and admissible to support the action that would be proper if the injured person himself were suing. There would be the same elements of damage for the consideration of the jury in assessing the damages, and the evidence would mainly relate to, and the damages be for, the physical and mental suffering of the deceased and the injuries and loss generally sustained by him and his estate. Bagley v. Weaver, 211 Va. 779 , 180 S.E.2d 686 (1971) (decided under prior law).

Recoveries under the predecessor section and § 8.01-50 et seq. distinguished. - The limit of recovery in an action under § 8.01-50 et seq. is different from that in the action preserved by the former version of this section. In one, the amount of the recovery is limited by statute, is for the benefit of certain designated beneficiaries, and is free from debts and liabilities. In the other, the limit is the amount of damages that can be proved, is an asset of the decedent's estate, and is subject to the payment of his debts. Bagley v. Weaver, 211 Va. 779 , 180 S.E.2d 686 (1971) (decided under prior law).

Where two witnesses vary in their statements of fact. - Where administratrix brought action for personal injuries based on nursing homes treatment of decedent, dismissal of the action prior to completion of administratrix's evidence deprived her of opportunity to prove damages for personal injury and, therefore, constituted reversible error; although one doctor testified that nursing home's treatment hastened decedent's death, the testimony did not leave administratrix with only a wrongful death action; court should have allowed administratrix to proceed with testimony of another doctor that the cause of death was pneumonia since when two or more witnesses introduced by a party litigant vary in their statements of fact, such party has the right to ask the court or jury to accept as true the statements most favorable to him. Lucas v. HCMF Corp., 238 Va. 446 , 384 S.E.2d 92 (1989).

Action fails where officers acted objectively, reasonably. - Survivor's cause of action under § 8.01-25 and a wrongful death action under § 8.01-50 failed where a decedent's sister could not have proved negligent, intentional, or reckless conduct because the court previously found that police officers did not falsely arrest the decedent or use excessive force against him, but that they acted objectively, reasonably. Waller v. City of Danville, - F. Supp. 2d - , 2005 U.S. Dist. LEXIS 34584 (W.D. Va. Dec. 12, 2005).

CIRCUIT COURT OPINIONS

Choice of recovery theory in malpractice action. - Although an administratrix was permitted to proceed both on a survivorship and a wrongful death claim, she could recover on only one theory pursuant to §§ 8.01-25 and 8.01-56 . There was no reason to prohibit her from arguing contradictory theories of liability pursuant to § 8.01-281 and Va. Sup. Ct. R. 1:4(k). Williams v. Med. Facilities of Am., 75 Va. Cir. 416, 2005 Va. Cir. LEXIS 380 (Virginia Beach 2005).

Survival of cause of action after death. - A decedent's cause of action survives his death, whether or not it is related to the death. If it is related if becomes a wrongful death claim and if it is not related, it is said to survive. Wright v. Eli Lilly & Co., 65 Va. Cir. 485, 2004 Va. Cir. LEXIS 295 (Portsmouth 2004).

In a case involving the alleged mismanagement of irrevocable trusts, a demurrer was not sustained because the death of a decedent had no bearing on the substance of the claims. The decedent, not his estate, was named as the wrongdoer, the cause of action no doubt arose while the decedent was still alive, and there was no argument that the claim was untimely filed. Burton v. Dolph, 89 Va. Cir. 101, 2014 Va. Cir. LEXIS 129 (Norfolk June 27, 2014).

Bank's demurrer to a son's conversion claim was sustained because only the personal representative of a decedent's estate had standing to bring the claim, and, the son had no ownership interest in the decedent's deposit accounts; the cause of action existed in the decedent's favor, and although it could survive under the statute, it would belong to his estate. Lance v. Wells Fargo Bank, N.A., 99 Va. Cir. 115, 2018 Va. Cir. LEXIS 20 (Chesapeake Feb. 21, 2018).

Alternative pleading with a wrongful death action permitted. - Because the responses sought by a hospital from a decedent's survivor attempted to force the survivor to proceed solely under either § 8.01-50 or § 8.01-25 , which was contrary to § 8.01-281 , and improperly forced the survivor to elect his remedies, his answers to two requests for admissions were deemed sufficient. Richard Montgomery Bros. v. Rockingham Mem. Hosp., 75 Va. Cir. 85, 2008 Va. Cir. LEXIS 29 (Rockingham County 2008).

Complaint stated a cause of action. - Defendant officers' demurrer to count I of plaintiff's complaint, which alleged unlawful seizure, was sustained because, although no law or self-executing provision of the Virginia Constitution established a private cause of action for unlawful seizure, count I may have stated a claim for the intentional tort of false imprisonment. Chandler v. Routin, 63 Va. Cir. 139, 2003 Va. Cir. LEXIS 347 (Norfolk 2003).

§ 8.01-26. Assignment of causes of action.

Only those causes of action for damage to real or personal property, whether such damage be direct or indirect, and causes of action ex contractu are assignable. The provisions of this section shall not prohibit any injured party or his estate from making a voluntary assignment of the proceeds or anticipated proceeds of any court award or settlement as security for new value given in consideration of such voluntary assignment.

(1977, c. 617; 1991, c. 256.)

REVISERS' NOTE.

Formerly, the test of assignability was survival, and only those causes of action which would survive to the personal representative were assignable; actions which survived and therefore were assignable were those which grew out of breach of contract or were for direct injury to real or personal property. See Winston v. Gordon, 115 Va. 899 , 80 S.E. 756 (1914); Richmond Redevelopment & Hous. Auth. v. Laburnum Constr. Corp., 195 Va. 827 , 80 S.E.2d 574 (1954).

Section 8.01-25 allows all causes of actions to survive. Section 8.01-26 separates the issue of assignability from that of survival - i.e. no longer will an action be assignable simply because it survives. Instead, unless the action falls within § 8.01-26 , it is not assignable even though it is an action which survives under § 8.01-25 . However, with the exception of the elimination of the illogical distinction between direct and indirect damage to property, the section codifies existing case law on the assignment of actions. See Birmingham v. Chesapeake & O.R.R., 98 Va. 548 , 37 S.E. 17 (1900) also cited in Maynard v. General Elec. Co., 486 F.2d 538 at 540 (5th Cir. 1973); Friedman v. People's Serv. Drug Store, 208 Va. 700 , 160 S.E.2d 563 (1968).

________

Law review. - For note, "Assignability of a Tort Cause of Action in Virginia," see 41 Va. L. Rev. 687 (1955). For survey of Virginia law on practice and pleading for the year 1976-77, see 63 Va. L. Rev. 1459 (1977).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Assignments, §§ 3, 7, 14; 2B M.J. Bankruptcy, §§ 59, 67, 79, 93; 18 M.J. Subrogation, § 2.

CASE NOTES

Tort claims for interference with business are assignable, since the right to do business is a valuable property right. Grey Line Auto Parts, Inc. v. Snead, 1 Bankr. 551 (Bankr. E.D. Va. 1979).

Claim under Federal Employers Liability Act. - The language of this section makes it clear that an unliquidated and contingent claim such as a Federal Employers Liability Act claim is neither assignable nor subject to the reach of creditor process under Virginia law and is therefore exempt property pursuant to 11 U.S.C. § 522(b)(2)(A). In re Musgrove, 7 Bankr. 892 (Bankr. W.D. Va. 1981).

Legal malpractice claims not assignable. - Section specifying which causes of action are assignable does not abrogate the common law rule which prohibits the assignment of legal malpractice claims. MNC Credit Corp. v. Sickels, 255 Va. 314 , 497 S.E.2d 331 (1998).

Estate beneficiary lacked standing to pursue a legal malpractice claim against the attorney representing her mother's estate because § 8.01-26 precluded assignment of legal malpractice claims, and in any event, the attorney represented the estate, not the beneficiary. Johnson v. Hart, 279 Va. 617 , 692 S.E.2d 239, 2010 Va. LEXIS 55 (2010).

Assignment of settlement proceeds or insurance benefits distinguished. - Although this section prohibits the assignment of a cause of action for personal injuries, there is a legally significant distinction between an assignment of a personal injury cause of action and an assignment of the settlement proceeds or insurance benefits thereof. Community Hosp. v. Musser, 24 Bankr. 913 (W.D. Va. 1982).

Assignment of proceeds of personal injury cause of action sub judice is permissible. In re Duty, 78 Bankr. 111 (Bankr. E.D. Va. 1987).

Applicability to hospitals seeking recovery limited to value of services actually rendered. - The reasons underlying the common-law rule against assignment of tort claims (now codified in this section), namely, the prevention of champerty and maintenance, do not support its application to hospitals seeking recoveries limited to the value of services actually supplied to the debtors, where the debtors retained complete control over their personal injury cases, the hospitals' rights exist only in the proceeds, not in the debtors' causes of action, and the hospitals had no right to proceed against the third-party tort-feasors even if the debtors decided not to pursue their tort claims. Community Hosp. v. Musser, 24 Bankr. 913 (W.D. Va. 1982).

Equitable assignment to hospital of sums to be recovered from tort-feasor. - The prohibition against assignments of causes of action for personal injury does not proscribe a hospital from obtaining an equitable assignment of the sums to be recovered by an individual from a tort-feasor to the extent of the value of the services provided by the hospital in treatment of the individual's personal injuries. Community Hosp. v. Musser, 24 Bankr. 913 (W.D. Va. 1982).

Contract claims for real estate commissions. - Because assignments of individual real estate agents' contract claims against their former employer to their new employer were permissible and because the applicable Virginia Real Estate Regulations neither expressly, nor implicitly by their purpose, prohibited the assignment of claims of this sort, the assignments were valid under Virginia law. Long & Foster Real Estate, Inc. v. NRT Mid-Atlantic, Inc., 357 F. Supp. 2d 911, 2005 U.S. Dist. LEXIS 2524 (E.D. Va. 2005).

Assignment of personal injury claim invalid where import of act not understood. - Purported assignment of a personal injury claim executed by a native of the Philippines with a halting grasp of English at the direction of the hospital which was treating him for his extensive injuries, the import of which was not understood by the assignor, was invalid under this section. Roanoke Mem. Hosp. Ass'n v. Baylon, 21 Bankr. 54 (Bankr. W.D. Va.), aff'd, 24 Bankr. 913 (Bankr. W.D. Va. 1982).

A cause of action for wrongful death is an asset of the bankruptcy estate and may not be assigned. In re Tidwell, 19 Bankr. 846 (Bankr. E.D. Va. 1982).

Guarantor's claim. - Co-guarantor of debtor's obligation to a lender was properly assigned the right to enforce the nondischargeability, under 11 U.S.C.S. § 523(a)(4), of the debtor's guaranty of the same debt under §§ 8.01-26 and 49-27, and a settlement agreement with the lender. Padgett v. Hadley (In re Hadley),, 2011 Bankr. LEXIS 3188 (Bankr. E.D. Va. Aug. 19, 2011).

Applied in In re Walters, 339 Bankr. 607, 2006 Bankr. LEXIS 493 (Bankr. W.D. Va. 2006).

CIRCUIT COURT OPINIONS

Warranty claims are ex-contractu and assignable. - Warranty (including implied warranty) claims are considered ex contractu and are therefore assignable under § 8.01-26 . Bay Point Condo. Ass'n v. RML Corp., 57 Va. Cir. 295, 2002 Va. Cir. LEXIS 10 (Norfolk Jan. 28, 2002).

Assignment of personal injury claim valid and enforceable despite bankruptcy discharge. - Injured plaintiff had executed, in favor of a hospital to which she owed medical bills, an assignment of the proceeds of any personal injury award she recovered. The assignment survived plaintiff's bankruptcy discharge and was valid, because the assignment of the proceeds of a personal injury award, which are uncertain and contingent, is not the same as the assignment of a personal injury cause of action, which is barred by § 8.01-26 . Dodd v. Lang, 71 Va. Cir. 235, 2006 Va. Cir. LEXIS 151 (Roanoke 2006).

No assignment of cause of action. - Bank's demurrer to a son's conversion claim was sustained because only the personal representative of a decedent's estate had standing to bring the claim; a reading of the power of attorney the decedent gave the son was clear that the son was given authority to sue in the decedent's name, but the conversion suit was brought in the son's personal capacity, and there was no allegation that any cause of action was assigned to him personally. Lance v. Wells Fargo Bank, N.A., 99 Va. Cir. 115, 2018 Va. Cir. LEXIS 20 (Chesapeake Feb. 21, 2018).

OPINIONS OF THE ATTORNEY GENERAL

Assignment of medical benefits payments. - Assignments of medical benefits payable under automobile insurance policies where the policyholder assigns these benefits to a chiropractor who provided treatment covered by the policy are enforceable. Provisions of insurance contracts seeking to limit or preclude this kind of assignment are unenforceable so long as the assignment does not materially alter the risk or obligation of the insurer. See opinion of Attorney General to The Honorable Bill Janis, Member, House of Delegates, 10-066, 2010 Va. AG LEXIS 54 (9/24/10).

Article 2. Actions on Contracts Generally.

§ 8.01-27. Civil action on note or writing promising to pay money.

A civil action may be maintained upon any note or writing by which there is a promise, undertaking, or obligation to pay money, if the same be signed by the party who is to be charged thereby, or his agent. The action may also be maintained on any such note or writing for any past due installment on a debt payable in installments, although other installments thereof be not due.

(Code 1950, § 8-509; 1954, c. 333; 1977, c. 617.)

Cross references. - For rule of court as to commencement of civil actions, see Rule 3:2.

Law review. - For article, "Reconsidering Inducement," see 76 Va. L. Rev. 877 (1990).

Michie's Jurisprudence. - For related discussion, see 2A M.J. Assumpsit, §§ 2, 41; 5A M.J. Covenant, Action of, § 2; 5C M.J. Debt, Action of, §§ 3, 4, 6, 7.

§ 8.01-27.1. Additional recovery in certain civil actions concerning checks or rejected electronic funds transfers.

  1. Except as otherwise provided in Chapter 12 (§ 55.1-1200 et seq.) or Chapter 14 (§ 55.1-1400 et seq.) of Title 55.1, in any civil claim or action made or brought against the drawer of a check, draft or order, payment of which has been refused by the drawee depository because of lack of funds in or credit with such drawee depository, or because such check, draft or order was returned because of a stop-payment order placed in bad faith on the check, draft or order by the drawer, the holder or his agent shall be entitled to claim, in addition to the face amount of the check (i) legal interest from the date of the check, (ii) the protest or bad check return fee, if any, charged to the holder by his bank or other depository, (iii) a processing charge of $50, and (iv) reasonable attorney's fees if awarded by the court.
  2. Except as otherwise provided in Chapter 12 (§ 55.1-1200 et seq.) or Chapter 14 (§ 55.1-1400 et seq.) of Title 55.1, any holder of a check, draft or order, payment of which has been refused by the drawee for insufficient funds or credit or because of a stop-payment order placed in bad faith, who charges the drawer amounts in excess of those authorized in subsection A on account of payment being so refused shall, upon demand, be liable to the drawer for the lesser of (i) $50 plus the excess of the authorized amount or (ii) twice the amount charged in excess of the authorized amount.
  3. If an electronic funds transfer has been rejected because of insufficient funds or a stop-payment order has been placed in bad faith by the authorizing party, the authorizing party and the payee shall have the same rights and remedies as if the drawer had issued a bad check under subsection B. For purposes of this subsection, "electronic funds transfer" has the same meaning as provided in 15 U.S.C. § 1693(a).

    (1981, c. 230; 1992, c. 238; 1996, c. 334; 2003, c. 233; 2008, c. 489; 2009, c. 182; 2013, c. 63.)

Cross references. - As to criminal penalty for issuing bad checks, see § 18.2-181.

Editor's note. - To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitutions were made at the direction of the Virginia Code Commission: substituted "Chapter 12 ( § 55.1-1200 et seq.) or Chapter 14 ( § 55.1-1400 et seq.) of Title 55.1" for "Chapter 13 ( § 55-217 et seq.) or Chapter 13.2 ( § 55-248.2 et seq.) of Title 55" twice.

The 2003 amendments. - The 2003 amendment by c. 233 deleted "and" at the end of clause A (ii); substituted "$35, and" for "twenty-five dollars" at the end of clause A (iii); added clause A (iv); and substituted "$35" for "twenty-five dollars" in clause B (i).

The 2008 amendments. - The 2008 amendment by c. 489, in subsection A, inserted "Except as otherwise provided in Chapter 13 ( § 55-217 et seq.) or Chapter 13.2 ( § 55-248.2 et seq.) of Title 55," at the beginning and substituted "$50" for "$35" in clause (iii); in subsection B, inserted "Except as otherwise provided in Chapter 13 ( § 55-217 et seq.) or Chapter 13.2 ( § 55-248.2 et seq.) of Title 55" at the beginning and substituted "$50" for "$30" at the beginning of clause (i).

The 2009 amendments. - The 2009 amendment by c. 182 inserted "or because such check, draft or order was returned because of a stop-payment order placed in bad faith on the check, draft or order by the drawer" in subsection A; and inserted "or because of a stop-payment order placed in bad faith" in subsection B.

The 2013 amendments. - The 2013 amendment by c. 63 added subsection C.

Law review. - For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, see "Civil Practice and Procedure," 26 U. Rich. L. Rev. 679 (1992).

Michie's Jurisprudence. - For related discussion, see 3A M.J. Banks and Banking, § 89; 3C M.J. Commercial Law, § 89.

OPINIONS OF THE ATTORNEY GENERAL

Bank or savings institution may impose returned check processing charge in such amount as is agreed by borrower. - Section 6.1-330.63 A [now see § 6.2-432 et seq.] permits a bank or savings institution to impose a returned check processing charge in such amount as is agreed by the borrower, regardless of limitations on returned check processing charges contained in § 8.01-27.1 . See opinion of Attorney General to The Honorable Walter A. Stosch, Member, Senate of Virginia, 01-122 (11/29/01).

§ 8.01-27.2. Civil recovery for giving bad check.

  1. Except as otherwise provided in Chapter 12 (§ 55.1-1200 et seq.) or Chapter 14 (§ 55.1-1400 et seq.) of Title 55.1, in the event a check, draft or order, the payment of which has been refused by the drawee because of lack of funds in or credit with such drawee, is not paid in full within thirty days after receipt by the drawer of (i) written notice by registered, certified, or regular mail with the sender retaining an affidavit of service of mailing or other sufficient proof of mailing, which may be a U.S. Postal Certificate of Mailing or (ii) if for nonpayment of rent under § 55.1-1245 or 55.1-1415, written notice in accordance therewith, from the payee that the check, draft or order has been returned unpaid, the payee may recover from the drawer in a civil action brought by the filing of a warrant in debt, the lesser of $250 or three times the amount of the check, draft or order. The amount recovered as authorized by this section shall be in addition to the amounts authorized for recovery under § 8.01-27.1 . No action may be initiated under this section if any action has been initiated under § 18.2-181. The drawer shall be obligated to pay the cost of service and the cost of mailing, as applicable.
  2. If an electronic funds transfer has been rejected because of insufficient funds or a stop-payment order has been placed in bad faith by the authorizing party, the authorizing party and the payee shall have the same rights and remedies as if the drawer had issued a bad check under § 8.01-27.1 . For purposes of this subsection, "electronic funds transfer" has the same meaning as provided in 15 U.S.C. § 1693(a). (1985, c. 579; 1988, c. 433; 1992, c. 501; 2002, c. 763; 2008, c. 489; 2013, c. 63.)

Editor's note. - To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitutions were made at the direction of the Virginia Code Commission: substituted "Chapter 12 ( § 55.1-1200 et seq.) or Chapter 14 ( § 55.1-1400 et seq.) of Title 55.1" for "Chapter 13 ( § 55-217 et seq.) or Chapter 13.2 ( § 55-248.2 et seq.) of Title 55" and "55.1-1245 or 55.1-1415" for "55-225 or 55-248.31."

The 2002 amendments. - The 2002 amendment by c. 763 inserted "an affidavit of service of mailing or other" following "retaining" in the first sentence.

The 2008 amendments. - The 2008 amendment by c. 489, in the first sentence, inserted "Except as otherwise provided in Chapter 13 ( § 55-217 et seq.) or Chapter 13.2 ( § 55-248.2 et seq.) of Title 55," at the beginning, inserted the clause (i) designation, and inserted clause (ii).

The 2013 amendments. - The 2013 amendment by c. 63 added the subsection A designator and subsection B.

Michie's Jurisprudence. - For related discussion, see 3A M.J. Banks and Banking, § 89.

§ 8.01-27.3. Evidence in actions regarding issuance of bad check.

In any civil action growing out of an arrest under § 18.2-181 or § 18.2-182, no evidence of statements or representations as to the status of the check, draft, order or deposit involved, or of any collateral agreement with reference to the check, draft, or order, shall be admissible unless such statement, or representation, or collateral agreement, is written upon the instrument at the time it is given by the drawer.

(2004, c. 462.)

§ 8.01-27.4. Civil recovery for professional services.

In the event any insured or enrollee of an accident and sickness insurance policy, health services plan or health maintenance organization receives payment from the insurance company, health services plan or health maintenance organization licensed under Title 38.2, pursuant to a claim that involves the provision of services to the insured or enrollee by a professional licensed under Title 54.1, and within 30 days of receipt of the payment does not forward the payment with the necessary endorsement to the professional for application towards the unpaid balance on the professional services subject to the claim, the professional may in a civil action brought by the filing of a warrant in debt recover from the insured or enrollee the lesser of $250 or three times the amount of the payment, together with the amount of the payment. The amount recovered as authorized by this section shall be in addition to the amounts authorized for recovery under § 8.01-27.1 . No action may be initiated under this section unless the professional, prior to receipt of payment by the insured or enrollee, forwards to the insured or enrollee via first class mail an invoice for services rendered.

(2004, c. 909; 2005, c. 141.)

The number of this section was assigned by the Virginia Code Commission, the number in the 2004 acts having been 8.01-27.3 .

The 2005 amendments. - The 2005 amendment by c. 141 substituted " § 8.01-27.1 " for " § 8.01-271.1 ."

§ 8.01-27.5. Duty of in-network providers to submit claims to health insurers; liability of covered patients for unbilled health care services.

  1. As used in this section: "Covered patient" means a patient whose health care services are covered under terms of a health care policy. "Health care policy" means any health care plan, subscription contract, evidence of coverage, certificate, health services plan, medical or hospital services plan, accident and sickness insurance policy or certificate, or other similar certificate, policy, contract, or arrangement, and any endorsement or rider thereto, offered, arranged, issued, or administered by a health insurer to an individual or a group contract holder to cover all or a portion of the cost of individuals, or their eligible dependents, receiving covered health care services. "Health care policy" includes coverages issued pursuant to (i) Chapter 28 (§ 2.2-2800 et seq.) of Title 2.2 (state employees); (ii) § 2.2-1204 (local choice); (iii) 5 U.S.C. § 8901 et seq. (federal employees); (iv) an employee welfare benefit plan as defined in 29 U.S.C. § 1002 (1) of the Employee Retirement Income Security Act of 1974 (ERISA) that is self-insured or self-funded; and (v) Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq. (Medicare), Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. (Medicaid), or Title XXI of the Social Security Act, 42 U.S.C. § 1397aa et seq. (CHIP). "Health care policy" does not include (a) Chapter 55 of Title 10 of the United States Code, 10 U.S.C. § 1071 et seq. (TRICARE); (b) subscription contracts for one or more dental or optometric services plans that are subject to Chapter 45 (§ 38.2-4500 et seq.) of Title 38.2; (c) insurance policies that provide coverage, singly or in combination, for death, dismemberment, disability, or hospital and medical care caused by or necessitated as a result of accident or specified kinds of accidents, including student accident, sports accident, blanket accident, specific accident, and accidental death and dismemberment policies; (d) credit life insurance and credit accident and sickness insurance issued pursuant to Chapter 37.1 (§ 38.2-3717 et seq.) of Title 38.2; (e) insurance policies that provide payments when an insured is disabled or unable to work because of illness, disease, or injury, including incidental benefits; (f) long-term care insurance as defined in § 38.2-5200; (g) plans providing only limited health care services under § 38.2-4300 unless offered by endorsement or rider to a group health benefit plan; (h) TRICARE supplement, Medicare supplement, or workers' compensation coverages; or (i) medical expense coverage issued pursuant to § 38.2-2201. "Health care provider" has the same meaning ascribed to the term in § 8.01-581.1 . "Health care services" means items or services furnished to any individual for the purpose of preventing, alleviating, curing, or healing human illness, injury, or physical disability. "Health insurer" means any entity that is the issuer or sponsor of a health care policy. "In-network provider" means a health care provider that is employed by or has entered into a provider agreement with the health insurer that has issued the health care policy or is a participating provider with such health insurer, under which agreement or conditions of participation the health care provider has agreed to provide health care services to covered patients. "Patient" means an individual who receives health care services from a health care provider, or any person authorized by law to consent on behalf of the individual incapable of making an informed decision, or, in the case of a minor child, the parent or parents having custody of the child or the child's legal guardian, or as otherwise provided by law. "Provider agreement" means a contract, agreement, or arrangement between a health care provider and a health insurer, or a health insurer's network, provider panel, intermediary, or representative, under which the health care provider has agreed to provide health care services to patients with coverage under a health care policy issued by the health insurer and to accept payment from the health insurer for the health care services provided.
  2. An in-network provider that provides health care services to a covered patient shall submit its claim to the health insurer for the health care services in accordance with the terms of the applicable provider agreement or as permitted under applicable federal or state laws or regulations, provided that the covered patient provides the in-network provider with information required by the terms of the covered patient's health care policy's plan documents, including the information that is required to verify the individual's coverage under the health care policy, within not fewer than 21 business days before the deadline for the in-network provider to submit its claim to the health insurer as required by the terms of the provider agreement. If an in-network provider does not submit its claim to the health insurer in accordance with the requirements of this subsection, then (i) the covered patient shall have no obligation to pay for health care services for which the in-network provider was required to submit its claim, (ii) the in-network provider shall not have the benefit of the liens provided by §§ 8.01-66.2 and 8.01-66.9 with regard to health care services for which the in-network provider was required to submit its claim, and (iii) the in-network provider shall be prohibited from recovering payment for any of the health care services for which it was required to submit its claim from an insurer providing medical expense benefits to the covered patient under a policy of motor vehicle liability insurance pursuant to § 38.2-2201, by exercising an assignment of the covered patient's rights to the medical expense benefits or by other means. If the in-network provider submits its claim to the health insurer in accordance with the requirements of this subsection, the covered patient or the health insurer shall be obligated to pay for the health care services in accordance with the terms of the provider agreement or health care policy's plan documents. To the extent that self-insured or self-funded plans governed by ERISA or Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq. (Medicare), Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. (Medicaid), or Title XXI of the Social Security Act, 42 U.S.C. § 1397aa et seq. (CHIP) provide otherwise, health care providers shall be permitted to submit claims and coordinate benefits as provided for in the provider agreements or plan documents or as required under applicable federal and state laws and regulations. (2013, c. 700; 2014, cc. 157, 417; 2018, c. 788.)

The 2014 amendments. - The 2014 amendments by cc. 157 and 417 are identical, and in the definition of "Health care policy" under subsection A inserted "(Medicaid)" and substituted "Title XXI of the Social Security Act, 42 U.S.C. § 1397aa et seq. (CHIP)" for "Title XX of the Social Security Act, 42 U.S.C. § 1397 et seq. (Medicaid)."

The 2018 amendments. - The 2018 amendment by c. 788, in subsection A, in the definition for "Health care policy," added clause (v) in the second sentence, and deleted the same references from the beginning of clause (a) in the third sentence; in the definition for "In-network provider," inserted "or is a participating provider with such health insurer" and "or conditions of participation"; in subsection B, inserted "or as permitted under applicable federal or state laws or regulations" in the first sentence, and in the last sentence, inserted "or Title XVIII of the Social Security Act, 42 U.S.C. § 1395 et seq. (Medicare), Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq. (Medicaid), or Title XXI of the Social Security Act, 42 U.S.C. § 1397aa et seq. (CHIP)" and added "or as required under applicable federal and state laws and regulation."

§ 8.01-28. When judgment to be given in action upon contract or note unless defendant appears and denies claim under oath.

In any action at law on a note or contract, express or implied, for the payment of money, or unlawful detainer pursuant to § 55.1-1245 or 55.1-1415 for the payment of money or possession of the premises, or both, if (i) the plaintiff files with his motion for judgment or civil warrant an affidavit made by himself or his agent, stating therein to the best of the affiant's belief the amount of the plaintiff's claim, that such amount is justly due, and the time from which plaintiff claims interest, and (ii) a copy of the affidavit together with a copy of any account filed with the motion for judgment or warrant and, in actions pursuant to § 55-1245 or 55-1415, proof of required notices is served on the defendant as provided in § 8.01-296 at the time a copy of the motion for judgment or warrant is so served, the plaintiff shall be entitled to a judgment on the affidavit and statement of account without further evidence unless the defendant either appears and pleads under oath or files with the court before the return date an affidavit or responsive pleading denying that the plaintiff is entitled to recover from the defendant on the claim. A denial by the defendant in general district court need not be in writing. The plaintiff or defendant shall, on motion, be granted a continuance whenever the defendant appears and pleads. If the defendant's pleading or affidavit admits that the plaintiff is entitled to recover from the defendant a sum certain less than that stated in the affidavit filed by the plaintiff, judgment may be taken by the plaintiff for the sum so admitted to be due, and the case will be tried as to the residue.

In the event of a defect in the affidavit, the plaintiff shall be entitled to a continuance.

(Code 1950, § 8-511; 1954, c. 610; 1960, c. 426; 1977, c. 617; 1983, c. 136; 1991, cc. 56, 503; 2014, c. 688.)

REVISERS' NOTE.

"Plea" in former § 8-511 has been changed to "pleading" since the former word might be interpreted to require the defendant to file a "plea" rather than to use an answer or grounds of defense.

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Cross references. - As to judgment for defendant in circuit court when plaintiff is entitled to less than $100, see § 17.1-514.

For rule of court as to commencement of civil actions, see Rule 3:2.

For rules as to answers, pleas, demurrers and motions, see Rule 3:8.

For rule of court on default, and inquiry as to damages, see Rule 3:19.

Editor's note. - To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitutions were made at that direction of the Virginia Code Commission: substituted "55.1-1245 or 55.1-1415" for "55-225 or 55-248.31" twice.

The 2014 amendments. - The 2014 amendment by c. 688 made minor stylistic changes in the first paragraph; and added the second paragraph.

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abatement, Survival and Revival, § 3; 2A M.J. Assumpsit, §§ 2, 46; 4A M.J. Continuances, § 26; 4B M.J. Corporations, § 246; 5C M.J. Debt, Action of, § 16; 11A M.J. Judgments and Decrees, §§ 194, 197; 11B M.J. Jury, § 13; 13A M.J. Motions for Judgment, §§ 2, 20.

Editor's note. - Some of the cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

The purpose of this section, like that of its ancestors, is to expedite the adjudication of certain claims for the payment of money by preventing the delay that results from the dilatory assertion of sham defenses. Sheets v. Ragsdale, 220 Va. 322 , 257 S.E.2d 858 (1979).

This section was intended to prevent delay caused to plaintiffs by continuances upon dilatory pleadings when no real defenses exist, and to simplify and shorten the proceedings. Grigg v. Dalsheimer, 88 Va. 508 , 13 S.E. 993 (1891); L.E. Mumford Banking Co. v. Farmers & Merchants Bank, 116 Va. 449 , 82 S.E. 112 (1914); Gehl v. Baker, 121 Va. 23 , 92 S.E. 852 (1917).

Section and Rule 1:10 construed together. - This section, relating to when a plaintiff is to be granted judgment in an action for payment of money in which the defendant fails to deny plaintiff's claim under oath, and Rule 1:10, providing that the statutory benefit provided a plaintiff will be waived unless the plaintiff timely claims it, read together in light of their respective histories and prevailing case law, are fully compatible and complementary. This section creates only an optional benefit; Rule 1:10 simply defines one mode of waiver. Sheets v. Ragsdale, 220 Va. 322 , 257 S.E.2d 858 (1979).

Substantial compliance is sufficient. - This section was enacted to prevent the filing of sham pleadings merely for delay, and a substantial compliance with its provisions is all that is required. Carpenter v. Gray, 113 Va. 518 , 75 S.E. 300 (1912); Paris v. Brown, 143 Va. 896 , 129 S.E. 678 (1925); see also, Levitin v. Norfolk Nat'l Bank, 163 Va. 694 , 177 S.E. 205 (1934).

And strict rule as to affidavits is not to be applied. - The strict rule applied in construing affidavits in attachment cases in equity, where the jurisdiction of the court is involved, is not to be applied to the affidavit allowed by this section. Carpenter v. Gray, 113 Va. 518 , 75 S.E. 300 (1912).

The affidavit need not in express terms state that the affiant is the plaintiff in the action, but is sufficient if the language plainly shows that fact. Carpenter v. Gray, 113 Va. 518 , 75 S.E. 300 (1912).

It should state time from which interest is claimed. - The affidavit filed with a motion under this section should state the time from which the plaintiff claims interest. Merriman Co. v. Thomas & Co., 103 Va. 24 , 48 S.E. 490 (1904).

And time stated in affidavit is controlling. - The fact that an account filed with a motion claimed interest from January 1, 1910, did not affect the validity of the affidavit filed under this section, which claimed interest from March 1, 1910, since the date fixed by the latter was in favor of the defendant, and would control in entering up judgment if no defense was made. Carpenter v. Gray, 113 Va. 518 , 75 S.E. 300 (1912).

Defendant must file written pleading denying indebtedness. - The final sentence of the statute and the appended revisers' note make it evident that the legislative purpose is to place upon the defendant the burden of filing a written pleading under oath, denying his indebtedness, if he wishes to preclude the entry of judgment on the affidavit without further evidence. Snead v. Bendigo, 240 Va. 399 , 397 S.E.2d 849 (1990).

Affidavit of bookkeeper is insufficient. - This section requires the affidavit of the plaintiff or his agent, and, in the absence of evidence on the subject, a "bookkeeper" will not be held to be such agent. Merriman Co. v. Thomas & Co., 103 Va. 24 , 48 S.E. 490 (1904); Taylor v. Sutherlin-Meade Tobacco Co., 107 Va. 787 , 60 S.E. 132 (1908).

An affidavit "that the matters stated in the annexed pleadings are true" is a substantial compliance with the provisions of this section. Jackson v. Dotson, 110 Va. 46 , 65 S.E. 484 (1909).

Section may be waived. - A plaintiff in an action may waive, or be estopped from asserting, his right to have judgment entered in his favor for the amount claimed by him in the affidavit filed with his motion, although the defendant has failed to comply with the provisions of this section entitling him to make defense to the claim asserted, and such waiver may be express or implied. Carpenter v. Gray, 113 Va. 518 , 75 S.E. 300 (1912).

The benefit this section bestows is not self-executing; it becomes available to the plaintiff only if he elects to claim it and does so in the manner the section prescribes. Even then, the statutory benefit is not an indefeasible right, but the verification requirement may be waived by the plaintiff either expressly or by implication, or he may by his conduct be estopped to take advantage of it. Sheets v. Ragsdale, 220 Va. 322 , 257 S.E.2d 858 (1979).

Failure to move to strike unverified pleading within seven days held waiver. - Where plaintiff failed, under Rule 1:10, to move to strike defendants' pleading for want of verification within seven days after it was filed, plaintiff waived the verification requirement and the trial court erred in granting default judgment. Sheets v. Ragsdale, 220 Va. 322 , 257 S.E.2d 858 (1979).

Plaintiff may be estopped from claiming benefits of this section. L.E. Mumford Banking Co. v. Farmers & Merchants Bank, 116 Va. 449 , 82 S.E. 112 (1914).

Consenting to or accepting continuance is waiver. - A plaintiff may, either expressly or by implication, waive compliance on the part of the defendant with the requirements of this section, or may by his conduct be estopped from taking advantage of its terms. Consenting to, or accepting without objection, a continuance of the case, are familiar methods of waiving the provisions of the section. Gehl v. Baker, 121 Va. 23 , 92 S.E. 852 (1917).

Failure to object to unsworn pleadings. - This section is for the benefit of the plaintiff, and may be waived by him, and it will be deemed to have been waived where he not only makes no objection when the pleading is tendered without a sufficient affidavit, but accepts without objection a continuance of the case until the next term of the court, "with leave to the defendant to file within fifteen days his grounds of defense." Jackson v. Dotson, 110 Va. 46 , 65 S.E. 484 (1909).

Where pleadings withdrawn and new pleadings tendered. - If a plaintiff files with his declaration the affidavit prescribed by this section, no pleadings can be filed by the defendant which are not accompanied by the affidavit required of him by this section, unless the affidavit has been waived, and although pleadings have been filed unaccompanied by such an affidavit without objection on the part of the plaintiff, yet if they are withdrawn and new pleadings are tendered by the defendant, the plaintiff may insist on the lack of an affidavit as a valid objection to the new pleadings. Spencer v. Field, 97 Va. 38 , 33 S.E. 380 (1899).

Plaintiff has no duty to inform defendant of affidavit filed nor of errors. - In opposing a motion for a continuance made by a defendant who has not complied with the provisions of this section, it is not necessary for the plaintiff's counsel to call defendant's attention to the fact, which a casual observance of the plaintiff's pleading would have disclosed, that there was an account and affidavit filed with the declaration; neither is it his duty to ask the court to correct an error of the clerk, either in taking the rules or in placing the case on the wrong docket. The plaintiff is not responsible for such errors, and cannot be prejudiced by them. Carpenter v. Gray, 113 Va. 518 , 75 S.E. 300 (1912).

Judgment entered for plaintiff after unsworn pleadings stricken is valid. - Where a plaintiff files with his declaration the affidavit prescribed by this section, and the defendant files his pleadings without affidavit, and the pleadings are stricken out, and a subsequent pleading with affidavit is rejected and final judgment given for the plaintiff, the judgment is not void. Whether it is erroneous or not, quaere. Grigg v. Dalsheimer, 88 Va. 508 , 13 S.E. 993 (1891).

There is no presumption that defendant filed affidavit. - Where, on appeal, the record is silent as to an affidavit by defendant, there is no presumption that any such was filed. Spencer v. Field, 97 Va. 38 , 33 S.E. 380 (1899).

OPINIONS OF THE ATTORNEY GENERAL

"Agent." - "Agent," as used in this section, includes a plaintiff's attorney in a debt collection case; therefore, plaintiff's attorney may sign and file an affidavit stating plaintiff's claim amount. See opinion of Attorney General to Ms. Karen A. Gould, Executive Director and Chief Operating Officer Virginia State Bar, 08-100, 2009 Va. AG LEXIS 14 (2/25/09).

§ 8.01-29. Procedure in actions on annuity and installment bonds, and other actions for penalties for nonperformance.

In an action on an annuity bond, or a bond for money payable by installments, when there are further payments of the annuity, or further installments to become due after the commencement of the action, or in any other action for a penalty for the nonperformance of any condition, covenant, or agreement, the plaintiff may assign as many breaches as he may think fit, and shall, in his motion for judgment assign the specific breaches for which the action is brought. The jury impaneled in any such action shall ascertain the damages sustained, or the sum due, by reason of the breaches assigned, and judgment shall be entered for the penalty, to be discharged by the payment of what is so ascertained, and such further sums as may be afterwards assessed. Motion may be made by any person injured against the defendant and, for what may be assessed or found due upon the new breach or breaches assigned, execution may be awarded.

(Code 1950, § 8-513; 1954, c. 333; 1977, c. 617.)

REVISERS' NOTE.

The only significant change to former § 8-513 is the elimination of the reference to the writ of scire facias; § 8.01-24 has replaced it with a simple motion. Other language of former § 8-513 has been deleted as unnecessary.

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Cross references. - For rule of court as to commencement of civil actions, see Rule 3:2.

Michie's Jurisprudence. - For related discussion, see 5A M.J. Covenant, Action of, § 2; 5C M.J. Debt, Action of, § 4.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

It is at least doubtful whether this section was intended to apply to actions on official bonds, although, in regard to such bonds, it has been held that the judgment ought to be entered in the form provided in this section. Sangster v. Commonwealth, 58 Va. (17 Gratt.) 124 (1866).

And judgment does not preclude other actions on such bond. - In no case has it been decided that where a judgment on an official bond has been so entered, it is a bar to any other action on the bond, and precludes any other recovery upon it than by motion for judgment. Sangster v. Commonwealth, 58 Va. (17 Gratt.) 124 (1866).

Form of judgment. - In an action upon a sheriff's bond in the name of the Commonwealth, for the benefit of a person aggrieved by the misconduct of the sheriff, the judgment should be entered for the penalty, to be discharged by the payment of the damages assessed and costs, "and such other damages as may be hereafter assessed upon suing out a scire facias, and assigning new breaches, by the said [person aggrieved], or any other person or persons injured." Bibb v. Cauthorne, 1 Va. (1 Wash.) 91 (1792).

§ 8.01-30. Procedure in actions on contracts made by several persons.

Upon all contracts hereafter made by more than one person, whether joint only or joint and several, an action may be maintained and judgment rendered against all liable thereon, or any one or any intermediate number, and if, in an action on any contract heretofore or hereafter made, more than one person be sued and process be served on only a part of them, the plaintiff may dismiss or proceed to judgment as to any so served, and either discontinue as to the others, or from time to time as the process is served, proceed to judgment against them until judgment be obtained against all. Such dismissal or discontinuance of the action as to any defendant shall not operate as a bar to any subsequent action which may be brought against him for the same cause.

(Code 1950, § 8-514; 1954, c. 333; 1977, c. 617.)

Cross references. - As to judgment in joint action on contract, where plaintiff is barred as to one or more but not all defendants, see § 8.01-442 .

For rule of court as to commencement of civil actions, see Rule 3:2.

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abatement, Survival and Revival, § 11; 3A M.J. Bonds, § 33; 4A M.J. Contracts, §§ 95, 97; 6A M.J. Dismissal, Discontinuance and Nonsuit, § 23; 8B M.J. Former Adjudication or Res Judicata, § 36; 12B M.J. Merger, § 7; 13A M.J. Motions for Judgment, § 7; 14A M.J. Parties, § 17; 14B M.J. Process, § 5.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

Section changes the common law. - In an action ex contractu against several defendants, the common-law rule was that all should be summoned actually, or constructively by prosecution to outlawry, before judgment could be had against any. This section changes this for another rule, whereby judgment may be had against one defendant served with process, and a discontinuance as to the others, or at the plaintiff's election, subsequent service of process and judgment, in the same suit, against the other defendants. Bush v. Campbell, 67 Va. (26 Gratt.) 403 (1875).

Bankruptcy court properly held that a judgment against the husband did not extinguish the wife's liability for a joint credit card debt because the statute altered common law, allowing joint debtors to be sued individually or in any combination or seriatim, and the creditor's judgment against the husband did not merge the cause of action as to the wife. Guertler v. DuPont Cmty. Credit Union, 552 Bankr. 140, 2016 U.S. Dist. LEXIS 35039 (W.D. Va. 2016).

Judgment may be rendered against defendant served with process. - Where only one of several defendants has been served with process, judgment may be rendered against him. Norfolk & W.R.R. v. Shippers Compress Co., 83 Va. 272 , 2 S.E. 139 (1887).

Where in an action against seven joint obligors, summons was returned executed as to four, and "No inhabitants" as to two, and as to the other, "I understand he is dead," and at rules the six pleaded for misjoinder of surviving obligors with a dead obligor, and the clerk abated the action as to those returned "No inhabitants," and the "dead" one, the court committed no error in rejecting the pleadings and entering judgment against the four who had been summoned. Dillard v. Turner, 87 Va. 669 , 14 S.E. 123 (1891).

And case discontinued as to those not served. - The discontinuance provided for by this section is a discontinuance as against any one or more defendants upon whom process had not been served. Corbin v. Planters Nat'l Bank, 87 Va. 661 , 13 S.E. 98 (1891).

One of several persons jointly liable may be sued alone. - In view of § 8.01-5 and this section, there is no merit in an objection by a defendant in an action upon a contract that his liability is joint with another, that such person was a necessary party and that defendant could not be sued alone. Reed & Rice Co. v. Wood, 138 Va. 187 , 120 S.E. 874 (1924).

Judgment may be had against sureties though principal not served. - Judgment on a forthcoming bond may be had against the sureties under this section, though the principal has never been served with notice of a motion for an award of execution on the bond. Newberry v. Sheffey, 89 Va. 286 , 15 S.E. 548 (1892).

And against some of stockholders jointly liable on subscription. - Since the obligation of a subscriber to stock to contribute to the amount of his subscription for the purpose of the payment of debts is contractual, and arises from the subscription to the stock, there can be no doubt of the right of a plaintiff under this section to proceed to judgment against a part of the defendants jointly liable for a subscription without proceeding against the others. Chisholm v. Gilmer, 81 F.2d 120 (4th Cir.), aff'd, 299 U.S. 99, 57 S. Ct. 65, 81 L. Ed. 63 (1936).

And plaintiff may recover entire claim from one obligor. - Where two clients jointly accept services rendered by an attorney, it is proper to charge that the attorney may recover the entire amount of the fee from either of the two clients, under this section, if he elects to sue one of them only. Culbert v. Hutton, 138 Va. 677 , 123 S.E. 367 (1924).

§ 8.01-31. Accounting in equity.

An accounting in equity may be had against any fiduciary or by one joint tenant, tenant in common, or coparcener for receiving more than comes to his just share or proportion, or against the personal representative of any such party.

(Code 1950, § 8-514.1; 1956, c. 160; 1977, c. 617.)

REVISERS' NOTE.

Former § 8-514.1 has been modified by deleting "bailiff" and other such terms which contemplate a fiduciary and the word "fiduciary" substituted in the place of those terms. See § 8.01-2 .

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Law review. - For 2007 annual survey article, "Civil Practice and Procedure," see 42 U. Rich. L. Rev. 229 (2007).

For article on real estate law covering judicial opinions from 2006 to 2008, and the 2007 and 2008 sessions of the Virginia General Assembly, see 43 U. Rich. L. Rev. 379 (2008).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abatement, Survival and Revival, § 10; 1A M.J. Accounts and Accounting, §§ 9, 10; 5A M.J. Cotenancy, §§ 17, 21, 22, 41, 45; 8A M.J. Executors and Administrators, §§ 64, 199; 9A M.J. Guardian and Ward, § 52; 15 M.J. Receivers, §§ 37, 39.

CASE NOTES

Applicability. - This statute does not apply only to commercial or income-producing property. Gaynor v. Hird, 15 Va. App. 379, 424 S.E.2d 240 (1992).

Because a Chapter 7 trustee by statute had the powers of a hypothetical judgment lien creditor, his powers were not addressed in § 8.01-31 , which addressed the potential rights of one joint tenant against another. Scott v. Hoole (In re Hoole),, 2018 Bankr. LEXIS 810 (Bankr. W.D. Va. Mar. 21, 2018).

Availability. - There is no indication in the statute or in Virginia decisional law that the General Assembly intended § 8.01-2 to supplant the well-settled common law pursuant to which an accounting is available to redress a breach of the fiduciary responsibility inherent in an agency relationship or in the special relationship shown to have existed between husband and wife in the instant case. McClung v. Smith, 870 F. Supp. 1384 (E.D. Va. 1994), modified, 89 F.3d 829 (4th Cir. 1996).

Debtor failed to state an equitable accounting claim because she did not allege that a mortgage lender acted as a fiduciary. Rivera v. JP Morgan Chase Bank (In re Rivera),, 2014 Bankr. LEXIS 344 (Bankr. E.D. Va. Jan. 27, 2014).

Executor of decedent's estate may seek accounting from trustees. - Executor of the estate of a decedent who was a lifetime beneficiary of a marital trust had standing to seek an accounting from the trustees as to their administration of the trust during the decedent's lifetime, because he succeeded to the decedent's § 8.01-31 right to an accounting by virtue of the survival provisions of § 8.01-25 . Campbell v. Harmon, 271 Va. 590 , 628 S.E.2d 308 (2006).

By incorporating the powers listed in § 64.1-57 [now § 64.2-105], a testator does not thereby exclude "all other powers granted by law" from the executor. The right to compel an accounting from trustees is such an "other power granted by law" pursuant to §§ 8.01-31 and 8.01-25 . Campbell v. Harmon, 271 Va. 590 , 628 S.E.2d 308 (2006).

Upon divorce, marital home fell within scope of section. - Upon parties' divorce, their marital home, which they had owned as tenants by the entirety, became their property as tenants in common, and thus fell within the scope of this section. Gaynor v. Hird, 15 Va. App. 379, 424 S.E.2d 240 (1992).

Reach of Gaynor . - Gaynor v. Hird, 15 Va. App. 379, 424 S.E.2d 240 (1992), which involved an accounting in equity pursuant to this section, after the parties' property was converted from ownership as tenants by the entirety to ownership as tenants in common, does not require an accounting of rental value pre-divorce when the parties own the property as tenants by the entirety. Longmyer v. Longmyer, No. 1543-94-4, 1995 Va. App. LEXIS 347 (Ct. of Appeals April 11, 1995).

Rental value award to non-occupying ex-spouse permissible. - Where upon their divorce, the parties owned marital residence as tenants in common, and husband was required to bear his share of the financial burden of owning the property, the trial court did not abuse its discretion in awarding husband one-half of the reasonable rental value of the marital home for the period it was occupied exclusively by wife following their divorce. Ashley v. Ashley, No. 0851-93-1 (Ct. of Appeals Nov. 30, 1993).

When, instead of renting it out, the co-tenant in possession occupies and uses the whole property to the exclusion of his co-tenants, and thus, in effect, becomes himself the renter, the just and true rule is to charge him with a reasonable rent for the use and occupation of the property in the condition in which it was when he received it, and to hold him accountable to his co-tenants for their just shares of such rent. Gaynor v. Hird, 15 Va. App. 379, 424 S.E.2d 240 (1992).

Non-occupying cotenant. - Because a non-occupying cotenant was never excluded or ousted from co-occupation of the property, she was not entitled to a ratable share of the fair rental value from the occupying cotenant. However, the occupying cotenant was entitled to one-half of the rental payments made by a non-owner occupant, namely the occupying cotenant's son. Daly v. Shepherd, 274 Va. 270 , 645 S.E.2d 485, 2007 Va. LEXIS 91 (2007).

Former spouse not entitled to rental value where not co-owner. - An accounting occurs and a party is entitled to the fair market rental value of property only when that party has joint ownership of the property; where the owner's former wife conceded that the property was titled solely in her former husband's name, she was not entitled to an award based on the property's rental value because she was not an owner of the property. Snider v. Snider, No. 1539-99-3, 2001 Va. App. LEXIS 19 (Ct. of Appeals Jan. 16, 2001).

Responsibility of cotenants for taxes and other liens. - Unless something more can be shown than the mere fact that one cotenant is in possession of the premises, each cotenant should be ratably responsible for taxes and other liens against the property. Jenkins v. Jenkins, 211 Va. 797 , 180 S.E.2d 516 (1971) (decided under prior law).

Cotenant who discharges an encumbrance upon common property is entitled to ratable contribution from his cotenant. Jenkins v. Jenkins, 211 Va. 797 , 180 S.E.2d 516 (1971) (decided under prior law).

The central characteristic of a tenancy in common is simply that each tenant is deemed to own by himself, with most of the attributes of individual ownership, a physically undivided part of the entire parcel. Jenkins v. Jenkins, 211 Va. 797 , 180 S.E.2d 516 (1971) (decided under prior law).

Husband entitled to evidentiary hearing to determine costs caused by former wife's delay in sale. - Where the wife's conduct delayed the sale of the marital residence, thereby allegedly causing the husband to make additional payments on the property, including the mortgage for which the husband was solely reasponsible, the husband, as tenant in common pursuant to § 20-111, was entitled under § 8.01-31 to an evidentiary hearing as to whether the husband was entitled to contribution from the wife, who was ratably responsible for the property's costs. Morris v. Morris, No. 3173-03-4, 2004 Va. App. LEXIS 447 (Ct. of Appeals Sept. 14, 2004).

It is not the purpose of the equitable distribution scheme to deprive an aggrieved spouse of a generally recognized remedy for the misapplication or misappropriation of separate funds entrusted to the other spouse pursuant to a special relationship. McClung v. Smith, 870 F. Supp. 1384 (E.D. Va. 1994), modified, 89 F.3d 829 (4th Cir. 1996).

Spouse not exempted. - There is no authority which, in the name of furthering marital harmony, would exempt from the remedy of an accounting a spouse who has been entrusted with the separate funds of another for a limited purpose and misapplied them. McClung v. Smith, 870 F. Supp. 1384 (E.D. Va. 1994), modified, 89 F.3d 829 (4th Cir. 1996).

Class action. - Force-pooled lessors, but not voluntary lessors, met federal class certification requirements on claims for breach of fiduciary duty, conversion, and unjust enrichment arising from alleged underpayment of royalties by natural gas production companies; moreover, an equitable accounting claim was suitable for bifurcated liability and damages proceedings. Adair v. EQT Prod. Co., 320 F.R.D. 379, 2017 U.S. Dist. LEXIS 46464 (W.D. Va. 2017).

Counterclaim sufficiently stated claim for equitable accounting. - Circuit court erred in sustaining a trustee's demurrer to a remainder beneficiary's counterclaim seeking an equitable accounting pursuant to § 8.01-31 because the properly pleaded facts in the beneficiary's third amended counterclaim, accepted as true, were sufficient to state a claim that the trustee, as a fiduciary, received more than comes to her just share; the circuit court erred in considering the trustee's accounting because it was neither an exhibit accompanying the pleading nor a document produced in response to a motion craving oyer. Riverside Healthcare Ass'n v. Forbes, 281 Va. 522 , 709 S.E.2d 156 (2011).

Costs denied. - Sibling was properly ordered to bear the costs of the partition suit under § 8.01-31 where the majority of the costs related to her failed attempt to recover the property's fair rental value from three of the siblings in possession of the property. Berry v. Fitzhugh, 846 S.E.2d 901, 2020 Va. LEXIS 94 (Aug. 20, 2020).

Not applicable. - Chapter 7 debtor's one-half ownership interest in certain real property was part of bankruptcy estate because property settlement between debtor and his ex-wife was incorporated into final divorce decree and was enforceable; however, neither party was entitled to contribution from other in circumstances here. Terry v. Evans (In re Evans), 527 Bankr. 228, 2015 Bankr. LEXIS 941 (Bankr. E.D. Va. Mar. 26, 2015).

Applied in Comtois v. Rogers, 282 Va. 289 , 715 S.E.2d 1, 2011 Va. LEXIS 191 (2011).

CIRCUIT COURT OPINIONS

Accounting for marital home. - When a husband and wife divorced, their marital home, which they had owned as tenants by the entirety, became their property as tenants in common, and fell within the scope of § 8.01-31 , requiring the husband to account for one-half the fair rental value of the property, as he maintained exclusive control of it. Shaio Hon Yang Yeh v. Guang Huei Yeh, 56 Va. Cir. 439, 2001 Va. Cir. LEXIS 485 (Roanoke 2001).

Cotenants claims for reimbursement of taxes. - Where two cotenants could not assert claims for reimbursement of taxes paid by others, the remaining cotenants' exceptions to a commissioner's recommendation in a partition action were sustained. Battiste v. Smith, 64 Va. Cir. 140, 2004 Va. Cir. LEXIS 14 (Spotsylvania County 2004).

Rental proceeds. - Because co-owners had exclusive occupancy of the premises and received all of its rental proceeds, they had a responsibility to account to plaintiff for his share. Clayborne v. McClain, 72 Va. Cir. 23, 2006 Va. Cir. LEXIS 186 (Nelson County 2006).

Spouse's exceptions to a commissioner's report failed as the spouse was required to account for the post-death rents and profits of a warehouse in the spouse's capacity as a fiduciary for an intestate estate under § 8.01-31 . Estate of Spears v. Spears,, 2008 Va. Cir. LEXIS 149 (Fairfax County Nov. 3, 2008).

Applicable. - Defendant argued that the statute was not applicable because it only allowed equitable accounting against any fiduciary or by one joint tenant, tenant in common, or coparcener, but the problem with this argument was that it did not appear that the complaint relies on the memorandum of understanding; the count was pleaded in the alternative that the duties arose from the positions that defendant held, and this appeared to be sufficient, as an alternative theory, to withstand a demurrer. Daggett & Grigg, Architects, P.C. v. Daggett, 90 Va. Cir. 442, 2015 Va. Cir. LEXIS 155 (Charlottesville Aug. 18, 2015).

Not applicable. - Former employee's motion to amend his complaint against his former employers to add a claim for an accounting under § 8.01-31 was denied; as an employer had no fiduciary duty to an employee and the parties were not joint tenants, tenants in common, or coparceners, § 8.01-31 was not applicable. Studer v. Hurley, 82 Va. Cir. 406, 2011 Va. Cir. LEXIS 146 (Norfolk Mar. 29, 2011).

School board's demurrer was sustained as to the claim against it for an equitable accounting because the school board was not a fiduciary of the county. Cty. of Lancaster v. Latimore, 97 Va. Cir. 401, 2013 Va. Cir. LEXIS 228 (Lancaster County May 31, 2013).

§ 8.01-32. Action on lost evidences of debt.

  1. A civil action may be maintained on any  past-due lost bond, note, contract, open account agreement, or other written evidence of debt, provided the plaintiff verifies under oath either in open court or by affidavit that said bond, note, contract, open account agreement, or other written evidence of debt has been lost or destroyed.
  2. Where a true and accurate copy of the written evidence of debt exists, which copy was produced in the normal course of business, the court shall accept such copy into evidence and shall give effect to its terms as if the original had been placed into evidence.
  3. In the event of any inconsistency between this section and any applicable provisions of § 8.3A-309 , the provisions of that section shall control. (Code 1950, § 8-517; 1954, c. 333; 1964, c. 219; 1977, c. 617; 2000, c. 245; 2003, c. 125.)

REVISERS' NOTE.

The catchline of former § 8-517 has been changed to emphasize the real purpose of this statute which is to permit an action on lost instruments that were evidences of debt. The former words "or defendants" and "order awarding" were deleted as unnecessary. (With respect to the deletion of "or defendants" see § 1-13.15.) The cross reference to the UCC was corrected.

________

The 2000 amendments. - The 2000 amendment by c. 245 substituted "is" for "be" following "if judgment" in the first sentence of the first paragraph and substituted " § 8.3A-309 " for " § 8.3-804" in the second paragraph.

The 2003 amendments. - The 2003 amendment by c. 125 rewrote the section.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, § 104; 9B M.J. Indemnity, § 3; 12A M.J. Lost Instruments and Records, §§ 2, 6, 7, 8, 9.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

Purpose of section. - This section was enacted to authorize the maintenance of an action at law "on any past due lost bond, note, or other written evidence of debt," and to require a proper indemnity for the defendant's protection. Prior to its adoption, an action at law could be maintained on lost bonds and lost choses in action of any kind, provided they were not negotiable. If the paper was negotiable, and there was ample proof that it was destroyed, an action at law could likewise be maintained; but upon negotiable paper which was simply lost or mislaid and not destroyed, no action at law would lie. In such actions as were allowed no indemnifying bond was required. Bickers v. Pinnell, 199 Va. 444 , 100 S.E.2d 20 (1957).

Section does not affect jurisdiction of equity. - Courts of equity still have jurisdiction to enforce payment of a lost bond, although courts of law are given jurisdiction over such bonds by this section, for it is well settled that courts of equity having once acquired jurisdiction never lose it because jurisdiction of the same matters is given to courts of law, unless the statute conferring such jurisdiction uses prohibitory or restrictive words. Kabler v. Spencer, 114 Va. 589 , 77 S.E. 504 (1913).

Claim against decedent's estate evidenced by lost instrument. - This section does not expressly or impliedly deprive a commissioner of accounts of the express and specific authority conferred on him under §§ 64.1-171, 64.1-172 and 64.1-173 [now §§ 64.2-550 and 64.2-552] to receive proof of debts and demands against a decedent or his estate in the settlement of the accounts of a personal representative of a decedent. Bickers v. Pinnell, 199 Va. 444 , 100 S.E.2d 20 (1957).

There was no merit in the contention that because the note evidencing a debt of a decedent was lost, the creditor was required to bring an action under this section against the executor, and precluded from proving her claim before a commissioner of accounts under §§ 64.1-171 through 64.1-173 [now §§ 64.2-550 and 64.2-552]. Bickers v. Pinnell, 199 Va. 444 , 100 S.E.2d 20 (1957).

§ 8.01-33. Equitable relief in certain cases.

A court shall not grant equitable relief in a suit upon a bond, note, or writing, by an assignee or holder thereof, unless it appears that the plaintiff had no adequate remedy thereon at law.

(Code 1950, § 8-518; 1977, c. 617; 2005, c. 681.)

Cross references. - As to right of assignee to sue in his own name, see § 8.01-13 .

The 2005 amendments. - The 2005 amendment by c. 681, effective January 1, 2006, deleted "of equity" preceding "shall," substituted "grant equitable relief in a suit" for "have jurisdiction of a suit," "it appears" for "it appear" and "had no" for "had not an."

Michie's Jurisprudence. - For related discussion, see 2A M.J. Assignments, § 38; 7A M.J. Equity, §§ 6, 10.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

The object of this section was to provide against the abuse of crowding the chancery court with suits by assignees upon plain bonds, but out of abundant caution the provision was extended, and very properly, to a mere transferee or holder of a bond or other writing. Winn v. Bowles, 20 Va. (6 Munf.) 23 (1817); Walters v. Farmers Bank, 76 Va. 12 (1881).

But equity, having taken jurisdiction on other grounds, will retain it. - This section was not intended to affect the principle that when the court has once rightly obtained cognizance of the controversy and of the parties, its power is effectual for complete relief. Walters v. Farmers Bank, 76 Va. 12 (1881).

And equity has jurisdiction of suit by partial assignee. - For the enforcement of payment of a part of a debt assigned by the creditor without the assent or acceptance of the debtor, there is no jurisdiction in a court of law, but such partial recovery may be had in a court of equity. Phillips v. City of Portsmouth, 112 Va. 164 , 70 S.E. 502 (1911).

Section is not applicable to promise to assume mortgage debt. - This section has no application to a suit brought upon the promise of defendants to assume the payment of a mortgage debt, which promise was implied by law from their acceptance of a writing not signed by defendants, conveying the property to them subject to the mortgage. Blanton v. Keneipp, 155 Va. 668 , 156 S.E. 413 (1931).

Article 3. Injury to Person or Property.

§ 8.01-34. When contribution among wrongdoers enforced.

Contribution among wrongdoers may be enforced when the wrong results from negligence and involves no moral turpitude.

(Code 1950, § 8-627; 1977, c. 617.)

REVISERS' NOTE.

The minor change which deleted "mere act" preceding "negligence" was made merely for clarification and does not materially alter the statute as it has been interpreted by case law.

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Law review. - For survey of Virginia law on torts for the year 1972-1973, see 59 Va. L. Rev. 1590 (1973). For survey of Virginia law on property for the year 1973-1974, see 60 Va. L. Rev. 1583 (1974). For article, "Effect of Virginia Workmen's Compensation Act upon the Right of a Third-Party Tortfeasor to Obtain Contribution from an Employer Whose Concurrent Negligence Causes Employee's Death or Injury," see 13 U. Rich L. Rev. 117 (1978). For comment, "The Covenant Not to Sue: Virginia's Effort to Bury the Common Law Rule Regarding the Release of Joint Tortfeasors," see 14 U. Rich. L. Rev. 809 (1980). For case note on contribution for antitrust contribution, see 66 Va. L. Rev. 797 (1980).

For an article, "A Model for Enhanced Risk Recovery in Tort," see 56 Wash. & Lee L. Rev. 1173 (1999).

For a note, "A Duty Not to Become a Victim: Assessing the Plaintiff's Fault in Negligent Security Actions," see 57 Wash. & Lee L. Rev. 611 (2000).

Michie's Jurisprudence. - For related discussion, see 4B M.J. Contribution and Exoneration, §§ 2, 22, 38; 18 M.J. Torts, §§ 3, 5, 6; 20 M.J. Witnesses, § 79.

CASE NOTES

I. DECISIONS UNDER CURRENT LAW.

Right to contribution from joint tort-feasors was statutorily created by the Virginia General Assembly in 1919. This right is codified in this section, subject now to the provisions of § 8.01-35.1 . Carickhoff v. Badger-Northland, Inc., 562 F. Supp. 160 (W.D. Va. 1983).

Before contribution will be permitted, a right of action by the plaintiff must exist as to the joint tort-feasor against whom contribution is sought. VEPCO v. Wilson, 221 Va. 979 , 277 S.E.2d 149 (1981).

A contribution plaintiff cannot recover from a contribution defendant unless the injured party could have recovered against the contribution defendant. Pierce v. Martin, 230 Va. 94 , 334 S.E.2d 576 (1985).

Contribution statute inapplicable. - Before contribution could be had, it was essential that a cause of action by the person injured lie against the alleged wrongdoer from whom contribution was sought; therefore, § 8.01-34 was inapplicable where a judicial ruling was tantamount to a holding that the injured party never had an enforceable cause of action against the target of the contribution claim. Pulte Home Corp. v. Parex, Inc., 265 Va. 518 , 579 S.E.2d 188, 2003 Va. LEXIS 51 (2003).

Because each of plaintiff's claims against defendant pled the existence of an intentional tort, defendant was not entitled to contribution from third-party defendants under § 8.01-34 . E.I. Dupont De Nemours & Co. v. Kolon Indus., 688 F. Supp. 2d 443, 2009 U.S. Dist. LEXIS 76795 (E.D. Va. 2009), motion granted by, E.I. du Pont de Nemours & Co. v. Kolon Indus., 683 F. Supp. 2d 401 (E.D. Va., 2009); motion granted by, judgment entered by E.I. du Pont de Nemours & Co. v. Kolon Indus., 2010 U.S. Dist. LEXIS 8981 (E.D. Va., Feb. 3, 2010); rev'd by E. I. du Pont de Nemours & Co. v. Kolon Indus., 637 F.3d 435 (4th Cir. Va., 2011).

The principles of contribution are equally applicable to indemnity, but the distinguishing feature of indemnity is that it must necessarily grow out of a contractual relationship. VEPCO v. Wilson, 221 Va. 979 , 277 S.E.2d 149 (1981).

Third-party plaintiff may bring action for contribution, despite the fact that no payment has been made. Rambone v. Critzer, 548 F. Supp. 660 (W.D. Va. 1982).

Indemnification between multiple parties. - In an action by building owners against a developer seeking contractual indemnification for damage to their buildings, where the developer sued a general contractor, who sued, inter alia, an earth-moving subcontractor, who sued a material supplier, who sued building contractors seeking contribution, the building contractors' motions to dismiss under Fed. R. Civ. P. 12(b)(6) were granted where the material supplier's contribution claims against the building contractors could not be brought under Fed. R. Civ. P. 14(a) because § 8.01-34 did not give a right of contribution to the material supplier. Kohl's Dep't Stores, Inc. v. Target Stores, Inc., 214 F.R.D. 406, 2003 U.S. Dist. LEXIS 5373 (E.D. Va. 2003).

Where liability arose out of act involving moral turpitude. - International matchmaking agency and its owner were not entitled to contribution due to their moral turpitude in not telling their client, a Ukrainian woman, about a battered spouse waiver, but instead telling her that her only options were to work things out with her new abusive husband or be deported back to the Ukraine. Fox v. Encounters Int'l, - F.3d - , 2006 U.S. App. LEXIS 9269 (4th Cir. Apr. 13, 2006).

Sufficiency of pleading. - Manufacturer's motion to dismiss a subcontractor's third-party negligence action was denied in part because the subcontractor met both elements of a claim for contribution under Virginia law. Claim for contribution was available to joint tortfeasors despite the general economic loss rule. AMCO Water Metering Sys. v. Travelers Cas. Sur. Co. of Am., - F. Supp. 2d - , 2003 U.S. Dist. LEXIS 17758 (W.D. Va. Sept. 30, 2003).

Erroneous jury instructions on apportionment. - Trial court in a physician's contribution action under §§ 8.01-34 and 8.01-35.1 against a pharmacy and its pharmacist erred when it gave the jury erroneous instructions on the issues of the reasonableness of an underlying settlement and the apportionment of damages between the parties, such that a new trial was required because the instructions bore on the issues of both liability and damages; apportionment between the parties should not have been before the jury where the evidence indicated that the injuries suffered by the patient in the underlying action were indivisible, such that a finding of joint liability rendered each party liable for the full injury, and as there was nothing to rebut the physician's evidence as to the reasonableness of the settlement, that issue also should not have been a subject for the jury's consideration. Sullivan v. Robertson Drug Co., 273 Va. 84 , 639 S.E.2d 250, 2007 Va. LEXIS 16 (2007).

Applied in Allianz Ins. Co. v. Garrett, 153 F.R.D. 89 (E.D. Va. 1994).

II. DECISIONS UNDER PRIOR LAW.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

This section changed the common-law rule. - At common law there was no contribution among joint tort-feasors, but that right is now given by this section. Norfolk & P. Belt Line R.R. v. Parker, 152 Va. 484 , 147 S.E. 461 (1929). See also McLaughlin v. Siegel, 166 Va. 374 , 185 S.E. 873 (1936); American Employers' Ins. Co. v. Maryland Cas. Co., 218 F.2d 335 (4th Cir. 1954).

At common law contribution was not permitted amongst joint tort-feasors. Mahone v. McGraw-Edison Co., 281 F. Supp. 582 (E.D. Va. 1968).

The doctrine of contribution is founded on principles of equity and natural justice. Hudgins v. Jones, 205 Va. 495 , 138 S.E.2d 16 (1964).

The right to contribution is based upon the equitable principle that where two or more persons are subject to a common burden it shall be borne equally. Nationwide Mut. Ins. Co. v. Minnifield, 213 Va. 797 , 196 S.E.2d 75 (1973).

The right of contribution is controlled by this section. Mahone v. McGraw-Edison Co., 281 F. Supp. 582 (E.D. Va. 1968).

But it gives a right of contribution only where the person injured has a right of action against two persons for the same indivisible injury. Though the concurring negligence of two persons may have resulted in an indivisible injury to a third, if the third person has a cause of action against only one of them, that one cannot enforce contribution from the other. The statute allowing contribution does not create any greater liability than existed before its enactment. Norfolk S.R.R. v. Gretakis, 162 Va. 597 , 174 S.E. 841 (1934).

This section gives a right of contribution only where the party damaged has a right of action against two or more parties for the same indivisible damage. In short, if the damaged party has a cause of action against only one of the parties responsible for the damage, that one cannot enforce contribution from the other. American Tobacco Co. v. Transport Corp., 277 F. Supp. 457 (E.D. Va. 1967); Laws v. Spain, 312 F. Supp. 315 (E.D. Va. 1970).

Virginia, while permitting contribution between co-tort-feasors, withholds it as against a joint offender who cannot in law be forced to answer to the plaintiff for his negligence. Drumgoole v. VEPCO, 170 F. Supp. 824 (E.D. Va. 1959).

The right of contribution is withheld against a joint tort-feasor who cannot in law be forced to answer to a plaintiff for his alleged negligence. Mahone v. McGraw-Edison Co., 281 F. Supp. 582 (E.D. Va. 1968).

This section does not create any greater liability than existed before its enactment. Laws v. Spain, 312 F. Supp. 315 (E.D. Va. 1970).

Joint tort-feasor. - Joint tort-feasor means "two or more persons jointly or severally liable in tort for the same injury to person or property." Laws v. Spain, 312 F. Supp. 315 (E.D. Va. 1970).

Recovery amongst joint tort-feasors, absent contract, is limited to contribution. Hartford Accident & Indem. Co. v. Williams, 291 F. Supp. 103 (W.D. Va. 1968).

When contribution permitted. - While no right of contribution among wrongdoers existed at common law, that right is now permitted by this section and may be enforced when the wrong is an act of negligence and involves no moral turpitude. The wrongdoer, of course, must be a joint tort-feasor; that is, the concurring negligence of both parties must have contributed to bring about the injury sustained by a third. North River Ins. Co. v. Davis, 274 F. Supp. 146 (W.D. Va. 1967), aff'd, 392 F.2d 571 (4th Cir. 1968).

When contribution a matter of right. - When parties are bound to bear a burden, and are liable from the same circumstances existing as to both, contribution is a matter of right in equity. Hudgins v. Jones, 205 Va. 495 , 138 S.E.2d 16 (1964).

The right of contribution arises only when one tort-feasor has paid or settled a claim for which other wrongdoers are also liable. Nationwide Mut. Ins. Co. v. Minnifield, 213 Va. 797 , 196 S.E.2d 75 (1973).

It does not permit contribution among participants in intentional illegal acts. - The affirmative provision of this section permitting contribution is limited to cases in which the wrong is a mere act of negligence, and the added phrase excluding acts of moral turpitude plainly shows that the legislature did not intend to extend the privilege to participants in intentional illegal acts. Carriers Ins. Exch. v. Truck Ins. Exch., 310 F.2d 653 (4th Cir. 1962).

This section did not justify contribution or indemnity between a lessor and lessee of a tractor-trailer carrying gasoline for liability caused by an explosion where the transaction was being conducted in deliberate disregard of the Interstate Commerce Commission's regulations. Carriers Ins. Exch. v. Truck Ins. Exch., 310 F.2d 653 (4th Cir. 1962).

Or where liability arose out of act involving moral turpitude. - The party who otherwise would be entitled to contribution may forfeit his right where the joint liability arose out of an act involving moral turpitude or a voluntary tort. Hudgins v. Jones, 205 Va. 495 , 138 S.E.2d 16 (1964).

Contribution allowed where party is only a technical wrongdoer. - Where a party is only a technical wrongdoer, and did not actually participate in the wrongful act, such party, on being compelled to pay damages to the injured party, is entitled to contribution or indemnity from the actual wrongdoer. McLaughlin v. Siegel, 166 Va. 374 , 185 S.E. 873 (1936).

Claim must have been paid. - Before contribution may be had it is essential that a cause of action by the person injured lie against the alleged wrongdoer from whom contribution is sought. Further, this right arises only when one tort-feasor has paid or settled a claim for which other wrongdoers are also liable. Bartlett v. Roberts Recapping, Inc., 207 Va. 789 , 153 S.E.2d 193 (1967).

The right to contribution arises only when one of the joint tort-feasors has paid a claim for which the other wrongdoer is also liable. The payment need not be the result of a judgment for the right of contribution will lie although no previous judgment determining the issues of negligence and contributory negligence has been obtained. North River Ins. Co. v. Davis, 274 F. Supp. 146 (W.D. Va. 1967), aff'd, 392 F.2d 571 (4th Cir. 1968).

The right to contribution arises only when one tort-feasor has paid or settled a claim for which the other wrongdoer is liable. Laws v. Spain, 312 F. Supp. 315 (E.D. Va. 1970).

The right given by this section arises when, and only when, one tort-feasor has paid a claim for which they are both liable. Laws v. Spain, 312 F. Supp. 315 (E.D. Va. 1970).

Assignment of right to contribution. - The right to enforce contribution granted by this section is a chose in action. And there appears no logical reason why it is not capable of being assigned. McKay v. Citizens Rapid Transit Co., 190 Va. 851 , 59 S.E.2d 121, 20 A.L.R.2d 918 (1950).

Insurer's right to contribution. - Under this statute not only a joint tort-feasor but also his insurer, who has paid a judgment against him and another joint tort-feasor, has the right of contribution from the latter. McKay v. Citizens Rapid Transit Co., 190 Va. 851 , 59 S.E.2d 121, 20 A.L.R.2d 918 (1950); American Employers' Ins. Co. v. Maryland Cas. Co., 218 F.2d 335 (4th Cir. 1954).

An accident occurred involving two cars in which the drivers of both were at fault, so that each insured became immediately liable and the indemnity provisions of each policy became effective with respect to all the injuries incurred. Thereupon the two insurance companies became subject to a common obligation to the extent of the respective limits of their policies, and when one of them paid the total amount of the debt, the right to contribution from the other arose. American Employers' Ins. Co. v. Maryland Cas. Co., 218 F.2d 335 (4th Cir. 1954).

The right to contribution is not a personal right of the tort-feasor but is a chose in action to which an insurer may be subrogated. Nationwide Mut. Ins. Co. v. Jewel Tea Co., 202 Va. 527 , 118 S.E.2d 646 (1961); Hudgins v. Jones, 205 Va. 495 , 138 S.E.2d 16 (1964).

An insurer's right to contribution was not barred by a judgment which it had previously obtained against the same defendant involving the same accident but based upon subrogation to a separate cause of action. Nationwide Mut. Ins. Co. v. Jewel Tea Co., 202 Va. 527 , 118 S.E.2d 646 (1961).

An insurer making settlement of claims against its insured is subrogated to his right of contribution from joint tort-feasors. Nationwide Mut. Ins. Co. v. Minnifield, 213 Va. 797 , 196 S.E.2d 75 (1973).

Jurisdiction of equity. - While the right to enforce contribution originally belonged to courts of equity on general principles of justice, jurisdiction to proceed in courts of law to enforce contribution is well recognized in some cases, but equity retains such original jurisdiction and will take jurisdiction when to do so will avoid a multiplicity of suits, or where the relief at law would be incomplete or inadequate. Hudgins v. Jones, 205 Va. 495 , 138 S.E.2d 16 (1964).

Transfer of case to law side. - Though the right to contribution arose in equity and though equity retains concurrent jurisdiction in such matters with courts of law, the court did not abuse its discretion in transferring the case to the law side. No matter was involved that was peculiarly cognizable in equity and the basic issues of negligence that were involved traditionally are tried at law. Hudgins v. Jones, 205 Va. 495 , 138 S.E.2d 16 (1964).

Action will lie though no previous judgment has been obtained. - A right of action for contribution will lie though no previous judgment determining the issues of negligence and contributory negligence has been obtained. There is nothing in our statute which requires that the issues of negligence and contributory negligence be adjudicated before an action for contribution may be brought. Nationwide Mut. Ins. Co. v. Jewel Tea Co., 202 Va. 527 , 118 S.E.2d 646 (1961).

Action based on compromise settlement. - Where the action for contribution is based upon a compromise settlement rather than a judgment, the alleged joint tort-feasor may challenge the right to contribution on grounds that the compromise settlement is unreasonable, excessive, made in bad faith, or that he was not concurrently negligent, or that his negligence was not a proximate cause of the injuries compromised. Nationwide Mut. Ins. Co. v. Jewel Tea Co., 202 Va. 527 , 118 S.E.2d 646 (1961).

The burden is upon the alleged joint tort-feasor to show that compromises upon which the right to contribution is based were unreasonable or excessive. Nationwide Mut. Ins. Co. v. Jewel Tea Co., 202 Va. 527 , 118 S.E.2d 646 (1961).

The right to maintain the action for contribution need not be founded upon a judgment determining the issues of negligence. It may be based upon a compromise settlement, rather than a judgment. Laws v. Spain, 312 F. Supp. 315 (E.D. Va. 1970).

Statute of limitations. - The cause of action in cases of this kind arises out of an implied promise to pay, and therefore the three-year statute of limitations would apply. Nationwide Mut. Ins. Co. v. Jewel Tea Co., 202 Va. 527 , 118 S.E.2d 646 (1961).

The right of action under this section arises upon payment or discharge of the obligation, and it is then that the statute of limitations begins to run. Nationwide Mut. Ins. Co. v. Jewel Tea Co., 202 Va. 527 , 118 S.E.2d 646 (1961).

Exoneration and indemnity comes about when one secondarily liable has to pay and then comes back to the party primarily responsible. Mahone v. McGraw-Edison Co., 281 F. Supp. 582 (E.D. Va. 1968).

Exoneration is the right to be reimbursed by reason of having paid that which another should be compelled to pay, and is generally based upon contract, express or implied. Mahone v. McGraw-Edison Co., 281 F. Supp. 582 (E.D. Va. 1968).

Sufficiency of pleading. - In an action brought under this section, use of the word "proximate" or the phrase "proximately caused" was held not necessary in a pleading that was seeking contribution for tortious injury or death caused by negligent acts of omission or commission. Legal responsibility in that respect can be charged by other language so long as it apprises defendant that he is charged with negligently causing or contributing to the injuries or death. Goode v. Courtney, 200 Va. 804 , 108 S.E.2d 396 (1959).

CIRCUIT COURT OPINIONS

Contribution for punitive damages barred. - In a contractor's demurrer to an independent contractor's third-party action for contribution or indemnification after a telephone company's cable was severed, the demurrer was sustained for any claim for indemnity or contribution for punitive damages awarded to the telephone company against the independent contractor, as any act justifying punitive damages would result from moral turpitude and would thus be barred by the provisions of § 8.01-34 . MCI Worldcom Network v. Brockman, 66 Va. Cir. 438, 2000 Va. Cir. LEXIS 646 (Amherst County 2000).

Contribution not barred in hit and run. - Where a motorist involved in an automobile accident pled guilty to felony hit and run, and was sued by the passengers of the other vehicle, it was not appropriate to grant a plea in bar preventing him from asserting a contribution action against the other driver, because the actions to which he pled guilty occurred after the accident occurred and the passengers were injured. Katz v. Waterman, 59 Va. Cir. 182, 2002 Va. Cir. LEXIS 128 (Loudoun County 2002).

Contribution in regard to the Virginia Birth-Related Neurological Injuries Compensation Act. - As the Virginia Birth-Related Neurological Injuries Compensation Act, § 38.2-5000 et seq., barred the injured parties from seeking any remedy against the hospital, the healthcare worker who was being sued could not seek contribution from a party the injured parties could not themselves sue. Schaffer v. Gildon, 61 Va. Cir. 118, 2003 Va. Cir. LEXIS 142 (Norfolk 2003).

Contribution in third-party action. - Construction company's motion for a demurrer was overruled because the fact that an accident victim could have sued the company at some point, if the facts in the retail store's third-party motion for judgment were taken as true, allowed the retail store to bring an action for contribution against the company under § 8.01-34 . Rapine v. A.E. Outfitters Retail Co., 70 Va. Cir. 153, 2006 Va. Cir. LEXIS 38 (Fairfax County 2006).

Contribution. - Contractor could not seek contribution from subcontractors because the contractor had neither paid, nor settled with an accident victim, who fell on the premises where the subcontractors provided services in the building of a walkway. Supchak v. Fuller Constr. Corp., 86 Va. Cir. 517, 2013 Va. Cir. LEXIS 75 (Chesapeake July 12, 2013).

Sufficiency of pleadings. - Based on a railroad's concession that the basis for a demurrer filed against it by a business was that its contribution claim was for the whole amount it paid to settle a FELA claim, the demurrer was sustained; however, the demurrer was denied as to its indemnification claim, whether said claim was labeled implied or equitable. CSX Transp., Inc. v. Titan Am., L.L.C., 72 Va. Cir. 593, 2004 Va. Cir. LEXIS 383 (Richmond 2004).

§ 8.01-35. Damages for loss of income not diminished by reimbursement.

In any suit brought for personal injury or death, provable damages for loss of income due to such injury or death shall not be diminished because of reimbursement of income to the plaintiff or decedent from any other source, nor shall the fact of any such reimbursement be admitted into evidence.

(Code 1950, § 8-628.3; 1974, c. 155; 1977, c. 617.)

Law review. - For survey of Virginia law on torts for the year 1973-1974, see 60 Va. L. Rev. 1615 (1974).

Michie's Jurisprudence. - For related discussion, see 5C M.J. Damages, §§ 48, 49, 91.

CASE NOTES

Section does not apply to losses incurred because of medical expenses. - This section is limited by its own terms to damages for "loss of income," and the Virginia Supreme Court and the Virginia legislature view this as separate and distinct from losses incurred because of medical expenses. Therefore, this section does not apply where the plaintiff seeks to introduce medical bills. Karsten v. Kaiser Found. Health Plan, 808 F. Supp. 1253 (E.D. Va. 1992), aff'd, 36 F.3d 8 (4th Cir. 1994).

Section did not apply where employer paid injured employee from his prior years' earnings. - Under the collateral source rule and this section, compensation paid by an employer to an employee during the period of the employee's disability was not deductible from the quantum of damages the tortfeasor owed; hence, evidence of the employee's loss of income was admissible in evidence at trial and the fact of any reimbursement to the employee by the employer shall not be admitted into evidence. Bullard v. Alfonso, 267 Va. 743 , 595 S.E.2d 284, 2004 Va. LEXIS 65 (2004).

Amounts written off under Medicaid. - Because the court determined that the collateral source rule would allow a personal injury plaintiff to seek damages for the full costs of medical treatment regardless of whether any amounts were written off under Medicaid, the court allowed plaintiff to introduce the full amounts charged by her health care providers. Wright v. Smith, 641 F. Supp. 2d 536, 2009 U.S. Dist. LEXIS 55781 (W.D. Va. 2009).

§ 8.01-35.1. Effect of release or covenant not to sue in respect to liability and contribution.

  1. When a release or a covenant not to sue is given in good faith to one of two or more persons liable for the same injury to a person or property, or the same wrongful death:
    1. It shall not discharge any other person from liability for the injury, property damage or wrongful death unless its terms so provide; but any amount recovered against the other person or any one of them shall be reduced by any amount stipulated by the covenant or the release, or in the amount of the consideration paid for it, whichever is the greater. In determining the amount of consideration given for a covenant not to sue or release for a settlement which consists in whole or in part of future payment or payments, the court shall consider expert or other evidence as to the present value of the settlement consisting in whole or in part of future payment or payments. A release or covenant not to sue given pursuant to this section shall not be admitted into evidence in the trial of the matter but shall be considered by the court in determining the amount for which judgment shall be entered; and
    2. It shall discharge the person to whom it is given from all liability for contribution to any other person liable for the same injury to person or property or the same wrongful death.
  2. A person who enters into a release or covenant not to sue with a claimant is not entitled to recover by way of contribution from another person whose liability for the injury, property damage or wrongful death is not extinguished by the release or covenant not to sue, nor in respect to any amount paid by the person which is in excess of what was reasonable.
  3. For the purposes of this section, a covenant not to sue shall include any "high-low" agreement whereby a party seeking damages for injury to a person or property, or for wrongful death, agrees to accept as full satisfaction for any judgment no more than one sum certain and the party or parties from whom the damages are sought agree to pay no less than another sum certain regardless of whether any judgment rendered at trial is higher or lower than the respective sums certain set forth in the agreement and whereby such party provides notice to all of the other parties of the terms of such "high-low" agreement immediately after such agreement is reached.
  4. A release or covenant not to sue given pursuant to this section shall be subject to the provisions of §§ 8.01-55 and 8.01-424 .
  5. This section shall apply to all such covenants not to sue executed on or after July 1, 1979, and to all releases executed on or after July 1, 1980. This section shall also apply to all oral covenants not to sue and oral releases agreed to on or after July 1, 1989, provided that any cause of action affected thereby accrues on or after July 1, 1989. A release or covenant not to sue need not be in writing where parties to a pending action state in open court that they have agreed to enter into such release or covenant not to sue and have agreed further to subsequently memorialize the same in writing.

    (1979, c. 697; 1980, c. 411; 1982, c. 196; 1983, c. 181; 1985, c. 330; 1989, c. 681; 2000, c. 351; 2007, c. 443.)

Cross references. - As to effect of judgment against one joint wrongdoer, see § 8.01-443 .

The 2000 amendments. - The 2000 amendment by c. 351 added present subsection C, and redesignated former subsections C and D as present subsections D and E.

The 2007 amendments. - The 2007 amendment by c. 443 in subsection A, substituted "liable for the same injury to a person or property" for "in tort for the same injury, or the same property damage"; in subdivision A 1, substituted "other person" for "of the other tort feasors" and "person" for "tort feasor" in the first sentence; in subdivision A 2, substituted "person" for "tort feasor" and "person liable for the same injury to person or property or the same wrongful death" for "tort feasor" near the end; in subsection B, substituted "person" for "tort feasor" throughout; and in subsection C, substituted "for injury to a person or property, or for wrongful death" for "in tort" near the beginning and "parties" for "tort feasors" near the end.

Law review. - For comment, "The Covenant Not to Sue: Virginia's Effort to Bury the Common Law Rule Regarding the Release of Joint Tortfeasors," see 14 U. Rich. L. Rev. 809 (1980). For survey of Virginia law on torts for the year 1978-1979, see 66 Va. L. Rev. 375 (1980).

For comment discussing the retroactive application of this section, see 18 U. Rich. L. Rev. 829 (1984). For 1985 survey of Virginia civil procedure and practice, see 19 U. Rich. L. Rev. 679 (1985).

For comment on decision, "Jones v. General Motors Corp., 856 F.2d 22 (4th Cir. 1988)," see 47 Wash. & Lee L. Rev. 504 (1990).

For 2007 annual survey article, "Civil Practice and Procedure," see 42 U. Rich. L. Rev. 229 (2007).

For article, "Civil Practice and Procedure," see 45 U. Rich. L. Rev. 183 (2010).

For annual survey of Virginia law article, "Civil Practice and Procedure," see 47 U. Rich. L. Rev. 113 (2012).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Accord and Satisfaction, §§ 1, 9; 1A M.J. Agency, § 84; 2A M.J. Assault and Battery, §§ 19, 27; 4B M.J. Contribution and Exoneration, § 22; 12B M.J. Master and Servant, § 97; 16 M.J. Release, §§ 7, 8; 18 M.J. Torts, §§ 1, 3.

CASE NOTES

Purpose. - The General Assembly intended to change a rule of law which tended to reward a recalcitrant tort-feasor at the expense of a joint tort-feasor who was willing to settle out of court. The legislative intent, as shown by the statutory language, was to promote the use of a covenant not to sue by permitting payment thereunder and discharge of one joint tort-feasor without causing the covenant to effect the release of the other joint tort-feasors. Hayman v. Patio Prods., Inc., 226 Va. 482 , 311 S.E.2d 752 (1984).

In 1979, recognizing the potential hardship under the common law, the Virginia legislature enacted this section. The statute provides that a release entered into by one joint tort-feasor does not necessarily discharge the remaining tort-feasors. The legislative purpose is to facilitate settlement and promote the use of releases. State Farm Mut. Auto. Ins. Co. v. Reynolds, 676 F. Supp. 106 (W.D. Va. 1987).

Two policy goals underlie the uniform law from which this section was derived and guide its interpretation; the overarching purpose is to foster settlements in the multiple tortfeasor context and the ancillary goal is to prevent collusion and thereby reasonably ensure a fair distribution of responsibility for a plaintiff's damages among tortfeasors. Dacotah Mktg. & Research v. Versatility, 21 F. Supp. 2d 570 (E.D. Va. 1998).

Section facilitates prompt settlement. - The statute authorizes payment of consideration under the covenant not to sue without discharging nonpaying joint tort-feasors. The statute protects the paying tort-feasor from liability for contribution and prohibits him from exacting contribution from nonpaying joint tort-feasors against whom claims remain outstanding. The statute facilitates prompt settlement, payment, and discharge of paying tort-feasors without releasing those nonpaying joint tort-feasors who prefer to have their liability determined in litigation, with its attendant delays. Hayman v. Patio Prods., Inc., 226 Va. 482 , 311 S.E.2d 752 (1984).

Injured party protected from unnecessary delays and loss of claims. - The effect of the statute is to protect the injured party from unnecessary delays and loss of claims. State Farm Mut. Auto. Ins. Co. v. Reynolds, 676 F. Supp. 106 (W.D. Va. 1987).

For history and construction of section, see Carickhoff v. Badger-Northland, Inc., 562 F. Supp. 160 (W.D. Va. 1983).

As applicable to Virginia Tort Claims Act. - Trial court improperly applied a set off under § 8.01-35.1 for a driver's settlement with a passenger and a liability limit of $100,000 in § 8.01-195.3 of the Virginia Tort Claims Act prior to a jury verdict in an action against the Commonwealth for negligence and nuisance; it was the jury's responsibility to determine the amount of damages, and then the set off and the liability limit, respectively, should be applied to the jury verdict. Torloni v. Commonwealth, 274 Va. 261 , 645 S.E.2d 487, 2007 Va. LEXIS 90 (2007).

Section inapplicable to defamation verdict. - This section was inapplicable to a jury verdict for a former employee against a former judge based on a statement made by the former judge to newspaper reporters because the injury resulting from the former judge's statement was separate and distinct from the injury resulting from a later newspaper article. Askew v. Collins, 283 Va. 482 , 722 S.E.2d 249, 2012 Va. LEXIS 51 (2012).

Not applicable to legal malpractice claim. - In a legal malpractice claim, the circuit court erred in denying the law firm's second plea in bar and in not granting a partial bar to the malpractice plaintiff's recovery because the law firm did not breach its duty to plaintiff by failing to correctly anticipate that the release agreement would not be governed by a former version of this statute as the supreme court later determined that the former version of this statute did not apply to legal malpractice cases, and by believing that the agreement had released some but not all of the co-defendants to the criminal malpractice claim. Smith v. McLaughlin, 289 Va. 241 , 769 S.E.2d 7, 2015 Va. LEXIS 23 (Feb. 26, 2015).

Construction with § 38.2-2206. - Consistent with the supreme court's jurisprudence and the General Assembly's intent as expressed in §§ 8.01-35.1 and 38.2-2206, the tortfeasor remains primarily responsible for fully compensating the plaintiff for the injury the tortfeasor has caused. Llewellyn v. White, 297 Va. 588 , 831 S.E.2d 494, 2019 Va. LEXIS 91 (2019).

Effect of subdivision A 1 is to encourage precisely worded releases, while at the same time offer some relief from the harsh common law rule. Although the case concerned a general boiler plate release, the statute did not suggest any reading, other than a literal interpretation, was mandated. State Farm Mut. Auto. Ins. Co. v. Reynolds, 676 F. Supp. 106 (W.D. Va. 1987).

Good faith requirement. - The collusion that will invalidate a release under the good faith standard occurs when the arm's length negotiations between the plaintiff and settling tortfeasors break down; a release is not given in good faith if the plaintiff no longer seeks to gain as much as possible through settlement and the release is given to facilitate a collusive alliance against or to otherwise facilitate intentionally injuring the interests of nonsettling parties. Dacotah Mktg. & Research v. Versatility, 21 F. Supp. 2d 570 (E.D. Va. 1998).

Analysis of whether a release was given in good faith begins with the presumption that the settlement has been made in good faith, and the burden is on the challenging party to show that the settlement is infected with collusion or other tortious or wrongful conduct. Dacotah Mktg. & Research v. Versatility, 21 F. Supp. 2d 570 (E.D. Va. 1998).

When a release given to one of two or more joint tortfeasors is the result of collusion between the plaintiff and the settling tortfeasor and is not given in good faith, the release does not discharge the colluding tortfeasor and is void and of no effect at all. Dacotah Mktg. & Research v. Versatility, 21 F. Supp. 2d 570 (E.D. Va. 1998).

The words "releases executed" used in subsection D (now subsection E) of this section are not a mandate that a plaintiff sign a written release but merely a collective synonym for the several releases addressed in the preceding paragraphs of the statute, i.e., a release "given in good faith," a release "given pursuant to this section," a release "given," and a release into which a party "enters." Fairfax Hosp. Sys. v. Nevitt, 249 Va. 591 , 457 S.E.2d 10 (1995).

At common law in Virginia, there was no right to contribution from joint tort-feasors, but that right was statutorily created by the Virginia General Assembly in 1919. This right is codified in § 8.01-34 , subject now to the provisions of this section. Carickhoff v. Badger-Northland, Inc., 562 F. Supp. 160 (W.D. Va. 1983).

Section affects substantive rights of joint tort-feasors, not merely the procedural aspects of their remedy. Shiflet v. Eller, 228 Va. 115 , 319 S.E.2d 750 (1984).

Issues affecting the substantive right of contribution are to be determined by the law which existed at the time of the tort giving rise to the cause of action for contribution. Shiflet v. Eller, 228 Va. 115 , 319 S.E.2d 750 (1984).

Right of contribution. - Approval of settlement agreement between debtors' Liquidating Trust and law firm did not prevent any party from arguing (in the context of an actual case or controversy) that § 8.01-35.1 had limited applicability to a future asserted right of contribution. In re Health Diagnostic Lab., Inc.,, 2016 Bankr. LEXIS 3724 (Bankr. E.D. Va. Oct. 14, 2016).

Releasable parties not limited to health care provider. - The settlement credit mandate of this section does not require that a person who has been released be a health care provider. It requires only that such a person and the defendant health care provider at trial be joint tortfeasors mutually liable for the same injury; health care group was such a joint tortfeasor. Fairfax Hosp. Sys. v. Nevitt, 249 Va. 591 , 457 S.E.2d 10 (1995).

Applicability to vicariously liable parties. - This section's plain language appears to apply to a party who is vicariously liable, as its coverage extends to one of two or more persons liable in tort for the same injury. And while a master and servant are not technically joint tort-feasors with respect to the servant's tortious act, in Virginia their liability is joint and several and governed by the same principles that are applicable to joint tort-feasors. Harris v. Aluminum Co. of Am., 550 F. Supp. 1024 (W.D. Va. 1982).

There is no evidence that the General Assembly intended to exclude the vicarious liability of masters or principals from the scope of this section. Harris v. Aluminum Co. of Am., 550 F. Supp. 1024 (W.D. Va. 1982).

The inclusion of a reference to "joint tort-feasors" in the title of the several acts affecting this section does not make the decision to apply the statute to those vicariously liable a constitutionally impermissible extension of the bounds of the act. Thurston Metals & Supply Co. v. Taylor, 230 Va. 475 , 339 S.E.2d 538 (1986).

The application of this section is not limited to "joint tort-feasors," as that term is narrowly defined, but the statute also applies to those vicariously liable as employers, masters, and principals. Thurston Metals & Supply Co. v. Taylor, 230 Va. 475 , 339 S.E.2d 538 (1986).

Application not at odds with Constitution. - Application of the plain words of the substantive language of this section to those vicariously liable, even though they technically are not joint tort-feasors, is not at odds with Va. Const., Art. IV, § 12 because it is in furtherance of the purpose of the enactment, which is to encourage settlements. Thurston Metals & Supply Co. v. Taylor, 230 Va. 475 , 339 S.E.2d 538 (1986).

Compliance with insurance provisions. - The public policy in favor of settlement of tort suits contained in this section has no bearing on the question of whether an insured must comply with policy provisions in order to collect insurance money in lieu of damages from a tort-feasor. Virginia Farm Bureau Mut. Ins. Co. v. Gibson, 236 Va. 433 , 374 S.E.2d 58 (1988).

Pre-1979 right of contribution among joint tort-feasors included a right to be released when a joint tort-feasor has been released. Bartholomew v. Bartholomew, 233 Va. 86 , 353 S.E.2d 752 (1987).

Offset not prohibited by FELA. Permitting a defendant to offset against the damages awarded the plaintiff the amount received by the plaintiff in a settlement with a third party does not violate the Federal employers' Liability Act, 45 U.S.C. § 51 et seq., provision which proscribes a "device" enabling a defendant "to exempt itself from liability." Downer v. CSX Transp., Inc., 256 Va. 590 , 507 S.E.2d 612 (1998).

Offset not properly calculated. - Trial court erred in calculating an offset from the settlement of a wrongful death action against one defendant that arose from a collision between the decedent's truck and a train, as the settlement amount should have been subtracted from the damage award before calculating the prejudgment interest that was awarded by the jury. RGR, LLC v. Settle, 288 Va. 260 , 764 S.E.2d 8, 2014 Va. LEXIS 161 (Oct. 31, 2014).

No entitlement to offset. - Circuit court did not err when it refused to reduce the judgment an insured obtained against a driver by the amount of the proceeds the insured received from her underinsured motorist policy because the insurer and the driver were not persons liable for the same injury; the insurer's contractual obligation was to pay the insured because of the driver's inadequate motor vehicle insurance, and that was not the same as the driver's tort obligation to pay for damages caused by her negligence. Llewellyn v. White, 297 Va. 588 , 831 S.E.2d 494, 2019 Va. LEXIS 91 (2019).

Driver was not entitled to any credit for money she owed pursuant to a judgment an insured obtained against her that she had not paid because the insurer agreed with the insured not to interfere with the insured's right to collect from the driver any amounts the driver was found to owe the insured; the insurer sought no consideration from and made no agreement with the driver to forgive any of the amount that it had the statutory right to seek from the driver. Llewellyn v. White, 297 Va. 588 , 831 S.E.2d 494, 2019 Va. LEXIS 91 (2019).

Recovery against other joint tort-feasors not barred by covenant not to sue. - The effect of this section as first enacted was to prevent a covenant not to sue, drawn in compliance with the statute, from having the effect, upon payment of the agreed consideration, of a release and accord and satisfaction barring recovery from the other joint tort-feasors. Hayman v. Patio Prods., Inc., 226 Va. 482 , 311 S.E.2d 752 (1984).

Amounts recovered under release or covenant not to sue. - Pursuant to this section, the amounts recovered under a release or a covenant not to sue shall reduce the plaintiff 's judgment against another by the amount stipulated in the covenant or release, irrespective of whether the settling party is in fact a joint tort-feasor. Greenbaum v. Travelers Ins. Co., 705 F. Supp. 1138 (E.D. Va. 1989).

In determining amount of release monies to be credited against recovery, etc. the trial court must identify the amount of consideration paid by a tortfeasor for a release. In determining this amount, the court must look at the injury or damage covered by the release and, if more than a single injury, allocate, if possible, the appropriate amount of compensation for each injury. Tazewell Oil Co. v. United Va. Bank/Crestar Bank, 243 Va. 94 , 413 S.E.2d 611 (1992).

In a case where a housing authority acted as an agent for a limited partnership in procuring a builders risk policy from an insurer, the trial court erred in failing to consider the application of subsection A of § 8.01-35.1 in determining economic loss damages, because a factor to be considered was whether the release or covenant not to sue in the settlement with the housing authority was for the same injury or property damage as the case at bar. Acordia of Va. Ins. Agency, Inc. v. Genito Glenn, L.P., 263 Va. 377 , 560 S.E.2d 246, 2002 Va. LEXIS 37 (2002).

In a contract dispute among an owner, contractor, subcontractor, and inspector for damages from the collapse of an underground rain tank, the circuit court erred in failing to consider whether the recitation in a settlement agreement between the owner and inspector was accurate regarding allocation of the consideration paid between the owner's claims for attorney's fees and the tank collapse and thus whether the subcontractor, who was found liable for the collapse, was entitled to an offset. William H. Gordon Assocs. v. Heritage Fellowship, 291 Va. 122 , 784 S.E.2d 265, 2016 Va. LEXIS 11 (2016).

Error in credit calculation found. - Where trial court reduced the $2,000,000 jury verdict rendered against the hospital by $600,000 (the amount of the health care group's settlement) and then reduced the remainder ($1,400,000) to the medical malpractice cap ($1,000,000), the plain meaning of this section and § 8.01-581.15 , read together, is that where there is a verdict by a jury or a judgment by a court against a health care provider for "injury to . . . a patient" and the total amount recovered in that action and in all settlements related to the medical malpractice injury exceeds one million dollars, the total amount the plaintiff can recover for that injury is $1,000,000. Accordingly, the trial court erred when it failed to apply the $600,000 credit for the statutory recovery cap in determining the quantum of plaintiff's judgment. Fairfax Hosp. Sys. v. Nevitt, 249 Va. 591 , 457 S.E.2d 10 (1995).

Distinction in subsection D (now subsection E) between covenants not to sue and releases is consistent with a long recognized distinction in Virginia common law. It was long the law of Virginia that a release of one joint tort-feasor amounted to a release of all joint tort-feasors. On the other hand, a covenant not to sue one joint tort-feasor did not necessarily prevent actions against fellow tort-feasors. Perdue v. Sears, Roebuck & Co., 694 F.2d 66 (4th Cir. 1982).

Retroactive application of section, resulting in destruction of substantive right which a party was possessed of prior to enactment of section, is improper. Carickhoff v. Badger-Northland, Inc., 562 F. Supp. 160 (W.D. Va. 1983).

In a medical malpractice case arising out of a surgical operation performed in 1977, where the patient's committee sued the hospital and three physicians, jointly and severally, and in 1983 agreed to settle her claims against the physicians for $475,000, releasing the physicians and purporting to reserve her claims against the hospital, this section could not be applied retroactively to adversely affect hospital's right of contribution from the released tort-feasors. Potomac Hosp. Corp. v. Dillon, 229 Va. 355 , 329 S.E.2d 41, cert. denied, 474 U.S. 971, 106 S. Ct. 352, 88 L. Ed. 2d 320 (1985).

Where defendant's substantive right, manifested by her ability to defend successfully the suit by the plaintiff after plaintiff had released joint tort-feasor, would be impaired if the statute was permitted to operate retroactively, the application of the statute would be constitutionally invalid, and issues affecting the substantive right would be determined by the law which existed in 1976, the time of the tort giving rise to the cause of action for contribution. Bartholomew v. Bartholomew, 233 Va. 86 , 353 S.E.2d 752 (1987).

When this section, including subsection D, adversely affects a substantive right, it cannot be applied retroactively to impair that right, because such application would violate the non-settling joint tort-feasor's due process rights. Bartholomew v. Bartholomew, 233 Va. 86 , 353 S.E.2d 752 (1987).

Section not retroactively applied so as to adversely affect right of contribution. - Where the cause of action for contribution accruing to a joint tort-feasor arose at the time of the jointly negligent acts in October, 1977, it necessarily followed that this section, enacted in 1979, which adversely affected that substantive right, could not be applied retroactively to impair that right. Such a retroactive application of the enactment would violate his due process rights and would be invalid. Shiflet v. Eller, 228 Va. 115 , 319 S.E.2d 750 (1984).

Applicable version of section determined by date release or covenant signed. - The 1982 amendment, which added the second sentence of subdivision A 1 and added subsection D, is a clarification of the July 1, 1980, version of this section. There is no issue of whether this section is retroactive or prospective. Each version of this section applies to covenants not to sue and/or releases signed during the effective dates of each version. Statzer v. King Kutter Corp., 550 F. Supp. 1062 (W.D. Va. 1982).

Not date cause of action arose. - The court must look to the date of the release rather than the date that the cause of action arose in order to determine the applicable version of this section. Statzer v. King Kutter Corp., 550 F. Supp. 1062 (W.D. Va. 1982).

Intent of parties is controlling on effect of release. - A nondischarged tort-feasor may claim a setoff based on any sums paid by another to obtain a release, but the effect of the release itself is controlled by the intent of the parties as expressed in the terms of the writing. Lemke v. Sears, Roebuck & Co., 853 F.2d 253 (4th Cir. 1988).

Written release, issued by an injured motorist to the other motorist involved in an auto accident, failed to bring an action against the auto manufacturer which named other motorist as third party defendant within the scope of this section, where the written release was executed two and one-half years after a similar oral release was given, and after the statute of limitations on injured motorist cause of action against other motorist had expired, and after the action against the manufacturer had commenced. Jones v. GMC, 856 F.2d 22 (4th Cir. 1988).

Approval of releases. - Those portions of a release that are not made part of a wrongful death compromise settlement approved by a circuit court are not binding on the parties to the release. Ramey v. Bobbitt, 250 Va. 474 , 463 S.E.2d 437 (1995).

Trial court did not err in utilizing the present value of infant's structured settlement with physician in reducing the infant's verdict against the hospital. Under this section, the hospital was not entitled to a credit equal to the undiscounted sum of payments which the settlement agreement provided for the infant. Fairfax Hosp. Sys. v. McCarty, 244 Va. 28 , 419 S.E.2d 621 (1992).

Nonsettling joint tort-feasor is not necessarily freed from liability for damages. Contribution may be recovered if his liability is established. State Farm Mut. Auto. Ins. Co. v. Reynolds, 676 F. Supp. 106 (W.D. Va. 1987).

When settling tort-feasor may seek contribution from nonsettling tort-feasor. - The legislature's purpose in enacting this section supports the inference, that if a release between a claimant and a tort-feasor extinguishes the liability of a second tort-feasor, then the settling tort-feasor may still seek contribution from the nonsettling tort-feasor. State Farm Mut. Auto. Ins. Co. v. Reynolds, 676 F. Supp. 106 (W.D. Va. 1987).

Principal not automatically released by covenant given to agent. - A covenant not to sue given to an alleged agent pursuant to this section does not automatically release the alleged principal from vicarious liability based on the acts of the alleged agent. Harris v. Aluminum Co. of Am., 550 F. Supp. 1024 (W.D. Va. 1982).

Inapplicable to indemnity rights arising from contractual relationship. - This statute governs only those claims for contribution between tort feasors, a relation that is created in law by the commission of the tort. The statute does not purport to speak to indemnity rights which arise from a contractual relationship between contracting parties. Whittle v. Timesavers, Inc., 572 F. Supp. 584 (W.D. Va. 1983), rev'd on other grounds, 749 F.2d 1103 (4th Cir. 1984).

Validity not affected by single document multi-claim release. - There is no requirement of separate documents for the release of contract and tort claims. Consolidation of them in a single document does not defeat an otherwise valid compliance with this section as to the release of tort claims. Tazewell Oil Co. v. United Va. Bank/Crestar Bank, 243 Va. 94 , 413 S.E.2d 611 (1992).

Indivisible injuries. - Where there is one indivisible injury for which settlement has been consummated, unconditional release of one allegedly liable for the injury bars recovery against others also allegedly liable, regardless of the theory upon which liability is predicated. Cauthorn v. British Leyland, U.K., Ltd., 233 Va. 202 , 355 S.E.2d 306 (1987).

Where the injuries complained of are those for which the compromise settlement provided compensation, and plaintiff sustained injuries which, although they may have had more than a single cause, constituted a single indivisible injury, her settlement with and release of the insurance companies and their insureds constituted an accord and satisfaction of her cause of action for her single indivisible injury, and as such, this release also released all other parties allegedly responsible for her injuries. Cauthorn v. British Leyland, U.K., Ltd., 233 Va. 202 , 355 S.E.2d 306 (1987).

Trial court did not err in dismissing the exonerated individual's motion for judgment, which sought to recover from the attorneys for alleged legal malpractice, after the exonerated individual was released from prison following the granting of his petition for habeas corpus based on evidence that other people actually committed the crimes for which he was wrongfully incarcerated; the trial court properly found that the exonerated individual suffered one indivisible injury and that he was not entitled to recover on a claim of legal malpractice since he had been compensated for that injury, his wrongful incarceration by the Commonwealth and his attempt to recover under a legal malpractice claim was merely trying to recover for the same wrong for which he had already been compensated. Cox v. Geary, 271 Va. 141 , 624 S.E.2d 16, 2006 Va. LEXIS 20 (2006).

Writing required. - While none of the language of this section standing alone might be dispositive, the provision as a whole points to the requirement of a writing. Jones v. GMC, 856 F.2d 22 (4th Cir. 1988) (decided prior to the 1989 amendment, which added the second and third sentences in present subsection E).

The statutory language of this section which speaks of executed releases and covenants appears to contemplate the signing of a written instrument. The drafters of the statute specifically selected the word "executed" in lieu of alternative terms such as "made" or "entered" which might have encompassed an oral agreement. This interpretation is further supported by other language in the statute which suggests that some written document was contemplated. Jones v. GMC, 856 F.2d 22 (4th Cir. 1988) (decided prior to the 1989 amendment, which added the second and third sentences in present subsection E).

Requirement of a writing ensures that the parties thereto understand who is being released in return for what consideration. It serves notice to joint tort-feasors that they remain bound and avoids the need to undertake extensive litigation over questions of the validity and effect of the release, with all the attendant problems of having the parties and their attorneys take the stand to testify about their understanding of the terms, consideration, and conditions of the release. Jones v. GMC, 856 F.2d 22 (4th Cir. 1988) (decided prior to the 1989 amendment, which added the second and third sentences in present subsection E).

Requirements of statute satisfied. - Where hospital argued that, in order to avoid the effect of the common-law rule, plaintiff was required by this section to subscribe a written release before dismissing health care group with prejudice from the case, and where the settlement, consummated by delivery of check and execution of the joint tortfeasor release, was preceded by an agreement in principle memorialized by several writings, namely, the letter addressed by plaintiff's counsel to health care group's counsel, the copy of the written release later executed, unchanged, by plaintiff and the order subscribed by counsel for plaintiff and health care group reciting that claims had been settled, pursuant to this section, plaintiff complied with the requirements of this section and the hospital was not released. Fairfax Hosp. Sys. v. Nevitt, 249 Va. 591 , 457 S.E.2d 10 (1995) (decided prior to the 1989 amendment).

Indivisible injuries. - Trial court in a physician's contribution action under §§ 8.01-34 and 8.01-35.1 against a pharmacy and its pharmacist erred when it gave the jury erroneous instructions on the issues of the reasonableness of an underlying settlement and the apportionment of damages between the parties, such that a new trial was required because the instructions bore on the issues of both liability and damages; apportionment between the parties should not have been before the jury where the evidence indicated that the injuries suffered by the patient in the underlying action were indivisible, such that a finding of joint liability rendered each party liable for the full injury, and as there was nothing to rebut the physician's evidence as to the reasonableness of the settlement, that issue also should not have been a subject for the jury's consideration. Sullivan v. Robertson Drug Co., 273 Va. 84 , 639 S.E.2d 250, 2007 Va. LEXIS 16 (2007).

Applied in Perdue v. Sears, Roebuck & Co., 523 F. Supp. 203 (W.D. Va. 1981); Farish v. Courion Indus., Inc., 754 F.2d 1111 (4th Cir. 1985); Bell v. Owen Thomas, Inc., 115 F.R.D. 299 (W.D. Va. 1987); Boyd v. Bulala, 678 F. Supp. 612 (W.D. Va. 1988); Allianz Ins. Co. v. Garrett, 47 F.3d 665 (4th Cir. 1995).

CIRCUIT COURT OPINIONS

"Good faith." - "Good faith" settlement agreement under § 8.01-35.1 is one that is the product of an arm's length negotiation untainted by collusion or other tortious or wrongful conduct. Fairfax Radiological Consultants, P.A. v. Bui, 72 Va. Cir. 570, 2002 Va. Cir. LEXIS 465 (Fairfax County 2002).

Insurance agency not joint tort-feasors with settling defendants in earlier related case and not entitled to settlement credit. - Settlement credit mandated by § 8.01-35.1 required that the tort-feasor seeking the credit and the other defendants involved in the settlement of a prior case had been joint tort-feasors mutually liable for the same injury; an insurance agency found to have been liable for its failure to name a partnership on a builders risk policy was not entitled to any credit for a settlement which the partnership made with the negligent tort-feasors in an earlier case involving a related construction project, as the insurance agency's tort was separate and distinct from the torts of the other tort-feasors. Genito Glenn, L.P. v. Acordia of Va. Ins. Agency, Inc., 61 Va. Cir. 634, 2002 Va. Cir. LEXIS 383 (Virginia Beach 2002).

Plea in discharge sustained in contribution action where settlement in good faith. - Doctor's plea in discharge was sustained after the other doctor tried to file a contribution action against the doctor once the other doctor was found liable to the patient in a medical malpractice suit, as the evidence did not show that the doctor's settlement with the patient was not made in good faith, or was otherwise the product of collusion or tortious conduct. Ponirakis v. Choi, 62 Va. Cir. 21, 2003 Va. Cir. LEXIS 83 (Fairfax County 2003).

Release given in good faith. - Release of the driver in a traffic accident case and a covenant not to sue did not release the manufacturer from liability in the injured person's products liability case, and, despite language in the release that set forth a specific amount for the injured person's eye injury, was not in bad faith, being expressly allowed by the clear language of § 8.01-35.1 ; the amount of consideration paid for the release was a matter to be determined at such time as judgment was entered in the case. Benitez v. Ford Motor Co., 69 Va. Cir. 323, 2005 Va. Cir. LEXIS 209 (Fairfax County 2005).

Uneven distribution of liability between a settling and a non-settling tortfeasor is clearly contemplated and permitted by § 8.01-35.1 and is not grounds to allow the latter to seek contribution from the former, absent a showing that the release was procured by collusion or was otherwise entered into in bad faith. Fairfax Radiological Consultants, P.A. v. Bui, 72 Va. Cir. 570, 2002 Va. Cir. LEXIS 465 (Fairfax County 2002).

As a pretrial settlement of a malpractice claim by plaintiffs and a doctor was made in good faith and without collusion by design or by operation of law, and the doctor did not reserve any right to veto plaintiffs' settlement with his former co-defendant, a radiological group, under § 8.01-35.1 , the group could not seek contribution from the doctor to satisfy the judgment entered against it. Fairfax Radiological Consultants, P.A. v. Bui, 72 Va. Cir. 570, 2002 Va. Cir. LEXIS 465 (Fairfax County 2002).

Indivisible injuries. - Where the corporation had not shown that it and the manufacturer were liable for the same indivisible injury because (1) any injury to the homeowners because the manufacturer produced a defective stucco, which was applied to their home, must have related to all the stucco applied, (2) the injury caused by breach of contract by the corporation (defective application of the stucco) did not under the evidence occur every place that the stucco was applied, and (3) while the injury for the defective product and for constructive fraud would have been the same, there was no way to tell if the jury found the corporation liable for constructive fraud because of the general nature of the verdict and the fact that the case went to the jury on two causes of action, the reduction provisions did not apply. Herman v. McCarthy Enters., 63 Va. Cir. 181, 2003 Va. Cir. LEXIS 333 (Loudoun County 2003).

Defendant entitled to settlement credit. - As the unjust enrichment, fraudulent conveyance and conversion claims alleged against co-defendant, who settled before trial, left the debtors unable to pay back the $150,000 loaned by plaintiffs, and caused the same $150,000 loss to plaintiffs as caused by defendant's fraud, defendant was entitled to a settlement credit based on co-defendant's settlement. Oswald v. Holtzman, 90 Va. Cir. 9, 2015 Va. Cir. LEXIS 15 (Fairfax County Jan. 20, 2015).

Calculation of settlement credit. - Defendant was awarded a settlement credit of $77,571, which was calculated by applying the settlement percentage paid by co-defendant, who settled before trial, to the value of the claims; plaintiffs accepted a $100,000 payment in exchange for releasing co-defendant from claims with a known value of $193,370, comprised of $150,000 in damages, fees of $43,370 and the possibility of punitive damages, which made the settlement amount approximately 51.71 percent of the value of the claims, exclusive of punitive damages. Oswald v. Holtzman, 90 Va. Cir. 9, 2015 Va. Cir. LEXIS 15 (Fairfax County Jan. 20, 2015).

§ 8.01-36. (Effective until January 1, 2022) Joinder of action of tort to infant with action for recovery of expenses incurred thereby and claim for recovery of expenses by infant.

  1. Where there is pending any action by an infant plaintiff against a tort-feasor for a personal injury, where the cause of action accrued prior to July 1, 2013, any parent or guardian of such infant, who is entitled to recover from the same tort-feasor the expenses of curing or attempting to cure such infant from the result of such personal injury, may bring an action against such tort-feasor for such expenses, in the same court where such infant's case is pending, either in the action filed in behalf of the infant or in a separate action. If the claim for expenses be by separate action, upon motion of any party to either case, made to the court at least one week before the trial, both cases shall be tried together at the same time as parts of the same transaction. But separate verdicts when there is a jury trial shall be rendered, and the judgment shall distinctly separate the decision and judgment in the separate causes of action.

    In the event of the cases being carried to the Supreme Court, which may be done if there be the jurisdictional amount in either case, they shall both be carried together as one case and record, but the Supreme Court shall clearly specify the decision in each case, separating them in the decision to the extent necessary to do justice among the parties.

  2. For causes of action that accrue on or after July 1, 2013, the past and future expenses of curing or attempting to cure an infant of personal injuries proximately caused by a tort-feasor are damages recoverable by an infant in a cause of action against the tort-feasor and, if applicable to the infant's cause of action, are subject to the limitation on damages in § 8.01-581.15 . Any parent or guardian of such infant who has paid for or is personally obligated to pay for past or future expenses to cure or attempt to cure the infant shall have a lien and right of reimbursement against any recovery by the infant up to the amount the parent or guardian has actually paid or is personally obligated to pay. The right to reimbursement of any parent or guardian shall accrue upon the first tender of funds of any recovery from a tort-feasor to the infant. Court approval of the infant settlement shall release party defendants from all claims for past or future expenses of curing or attempting to cure the infant. Nothing in this section shall relieve a parent of the obligation to pay for the medical expenses of curing or attempting to cure the infant as such obligation exists under current law. (Code 1950, § 8-629; 1954, c. 333; 1973, c. 277; 2013, cc. 551, 689.)

Section set out twice. - The section above is effective until January 1, 2022. For the version of this section effective January 1, 2022, see the following section, also numbered § 8.01-36 .

Cross references. - For rule of court as to commencement of civil actions, see Rule 3:2.

The 2013 amendments. - The 2013 amendments by cc. 551 and 689 are identical, and added the subsection A designator and added subsection B; and inserted "where the cause of action accrued prior to July 1, 2013" in the first sentence in subsection A.

Michie's Jurisprudence. - For related discussion, see 5C M.J. Damages, § 26; 9B M.J. Infants, § 16.

Editor's note. - Most of the cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

This section recognizes the common-law rule that two separate causes of action arise out of an injury to an infant by wrongful act. One cause of action is on behalf of the infant to recover damages for pain and suffering, permanent injury and impairment of earning capacity after attaining majority. The other is on behalf of the parent for loss of services during minority and necessary expenses incurred for the infant's treatment. Moses v. Akers, 203 Va. 130 , 122 S.E.2d 864 (1961).

An infant is not entitled to recover the expenses incurred in healing or attempting to be healed of his injuries in an action brought against a tort-feasor to recover damages for personal injuries unless (1) he has paid or agreed to pay the expenses; or (2) he alone is responsible by reason of his emancipation or the death or incompetency of his parents; or (3) the parent has waived the right of recovery in favor of the infant; or (4) recovery therefor is permitted by statute. Moses v. Akers, 203 Va. 130 , 122 S.E.2d 864 (1961).

Father's cause of action derivative. - A father's cause of action for medical and incidental expenses was a derivative action, and where there was no verdict in the child's case, there could be none in the father's case. Norfolk S. Ry. v. Fincham, 213 Va. 122 , 189 S.E.2d 380 (1972).

Applied in Hutto v. BIC Corp., 800 F. Supp. 1367 (E.D. Va. 1992).

CIRCUIT COURT OPINIONS

Parent's action for medical expenses. - Doctor's plea in bar and motions to dismiss and to join a child and his father were denied because the statute at issue did not expressly or implicitly restrict or bar the mother's common-law right of action for medical expenses in the manner alleged by the doctor where the first clause of the statute did not expressly state that a personal injury action on behalf of the child must be pending before the mother could bring her claim, the statute did not clearly express a legislative intent to change the common law and abridge the mother's right of action, and the mother's claim for medical expenses and the child's personal injury claim were governed by different statutes of limitation. Pancho v. Johnson, 94 Va. Cir. 64, 2016 Va. Cir. LEXIS 110 (Norfolk July 25, 2016).

Parents may initiate action as child's next friend. - For purposes of the parents' pregnancy-related medical malpractice lawsuit, because the doctor's allegedly tortious conduct occurred while the parents' son was still in utero, the court sustained defendants' pleas in bar as the parents' claims for their son's medical expenses were derivative of a claim by the son for personal injuries, and the facts affirmatively showed no claim for personal injuries on behalf of the son currently pending; furthermore, the son's personal injury claim had to be brought in his name by his next friend under § 8.01-8 , and could not be subsumed into a claim for personal injuries brought by the parents. Brown v. Tashman, 100 Va. Cir. 311, 2018 Va. Cir. LEXIS 620 (Fairfax County Nov. 9, 2018).

§ 8.01-36. (Effective January 1, 2022) Joinder of action of tort to infant with action for recovery of expenses incurred thereby and claim for recovery of expenses by infant.

  1. Where there is pending any action by an infant plaintiff against a tort-feasor for a personal injury, where the cause of action accrued prior to July 1, 2013, any parent or guardian of such infant, who is entitled to recover from the same tort-feasor the expenses of curing or attempting to cure such infant from the result of such personal injury, may bring an action against such tort-feasor for such expenses, in the same court where such infant's case is pending, either in the action filed in behalf of the infant or in a separate action. If the claim for expenses be by separate action, upon motion of any party to either case, made to the court at least one week before the trial, both cases shall be tried together at the same time as parts of the same transaction. But separate verdicts when there is a jury trial shall be rendered, and the judgment shall distinctly separate the decision and judgment in the separate causes of action.

    In the event of the cases being carried to the Court of Appeals, which may be done if there be the jurisdictional amount in either case, they shall both be carried together as one case and record, but the Court of Appeals shall clearly specify the decision in each case, separating them in the decision to the extent necessary to do justice among the parties. If an appeal is taken from the judgment of the Court of Appeals, the Supreme Court, in matters in which it grants the petition for appeal, shall clearly specify the decision in each case, separating them in the decision to the extent necessary to do justice among the parties.

  2. For causes of action that accrue on or after July 1, 2013, the past and future expenses of curing or attempting to cure an infant of personal injuries proximately caused by a tort-feasor are damages recoverable by an infant in a cause of action against the tort-feasor and, if applicable to the infant's cause of action, are subject to the limitation on damages in § 8.01-581.15 . Any parent or guardian of such infant who has paid for or is personally obligated to pay for past or future expenses to cure or attempt to cure the infant shall have a lien and right of reimbursement against any recovery by the infant up to the amount the parent or guardian has actually paid or is personally obligated to pay. The right to reimbursement of any parent or guardian shall accrue upon the first tender of funds of any recovery from a tort-feasor to the infant. Court approval of the infant settlement shall release party defendants from all claims for past or future expenses of curing or attempting to cure the infant. Nothing in this section shall relieve a parent of the obligation to pay for the medical expenses of curing or attempting to cure the infant as such obligation exists under current law. (Code 1950, § 8-629; 1954, c. 333; 1973, c. 277; 2013, cc. 551, 689; 2021, Sp. Sess. I, c. 489.)

Section set out twice. - The section above is effective January 1, 2022. For the version of this section effective until January 1, 2022, see the preceding section, also numbered § 8.01-36 .

Cross references. - For rule of court as to commencement of civil actions, see Rule 3:2.

Editor's note. - Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: "That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act."

Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: "That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate."

Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: "That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022."

The 2013 amendments. - The 2013 amendments by cc. 551 and 689 are identical, and added the subsection A designator and added subsection B; and inserted "where the cause of action accrued prior to July 1, 2013" in the first sentence in subsection A.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, in subsection A in the second paragraph, substituted "Court of Appeals" for "Supreme Court" twice and added the last sentence.

Michie's Jurisprudence. - For related discussion, see 5C M.J. Damages, § 26; 9B M.J. Infants, § 16.

Editor's note. - Most of the cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

This section recognizes the common-law rule that two separate causes of action arise out of an injury to an infant by wrongful act. One cause of action is on behalf of the infant to recover damages for pain and suffering, permanent injury and impairment of earning capacity after attaining majority. The other is on behalf of the parent for loss of services during minority and necessary expenses incurred for the infant's treatment. Moses v. Akers, 203 Va. 130 , 122 S.E.2d 864 (1961).

An infant is not entitled to recover the expenses incurred in healing or attempting to be healed of his injuries in an action brought against a tort-feasor to recover damages for personal injuries unless (1) he has paid or agreed to pay the expenses; or (2) he alone is responsible by reason of his emancipation or the death or incompetency of his parents; or (3) the parent has waived the right of recovery in favor of the infant; or (4) recovery therefor is permitted by statute. Moses v. Akers, 203 Va. 130 , 122 S.E.2d 864 (1961).

Father's cause of action derivative. - A father's cause of action for medical and incidental expenses was a derivative action, and where there was no verdict in the child's case, there could be none in the father's case. Norfolk S. Ry. v. Fincham, 213 Va. 122 , 189 S.E.2d 380 (1972).

Applied in Hutto v. BIC Corp., 800 F. Supp. 1367 (E.D. Va. 1992).

CIRCUIT COURT OPINIONS

Parent's action for medical expenses. - Doctor's plea in bar and motions to dismiss and to join a child and his father were denied because the statute at issue did not expressly or implicitly restrict or bar the mother's common-law right of action for medical expenses in the manner alleged by the doctor where the first clause of the statute did not expressly state that a personal injury action on behalf of the child must be pending before the mother could bring her claim, the statute did not clearly express a legislative intent to change the common law and abridge the mother's right of action, and the mother's claim for medical expenses and the child's personal injury claim were governed by different statutes of limitation. Pancho v. Johnson, 94 Va. Cir. 64, 2016 Va. Cir. LEXIS 110 (Norfolk July 25, 2016).

Parents may initiate action as child's next friend. - For purposes of the parents' pregnancy-related medical malpractice lawsuit, because the doctor's allegedly tortious conduct occurred while the parents' son was still in utero, the court sustained defendants' pleas in bar as the parents' claims for their son's medical expenses were derivative of a claim by the son for personal injuries, and the facts affirmatively showed no claim for personal injuries on behalf of the son currently pending; furthermore, the son's personal injury claim had to be brought in his name by his next friend under § 8.01-8 , and could not be subsumed into a claim for personal injuries brought by the parents. Brown v. Tashman, 100 Va. Cir. 311, 2018 Va. Cir. LEXIS 620 (Fairfax County Nov. 9, 2018).

§ 8.01-37. Recovery of lost wages in action for injuries to emancipated infant.

In any suit for personal injuries brought on behalf of an emancipated infant, when such infant has sustained lost wages as a result of such injuries, he shall be entitled to recover such lost wages as a part of his damages. Where recovery is made hereunder or where recovery is attempted to be made and a decision on the merits adverse to said infant results, no other person may recover such lost wages.

(Code 1950, § 8-629.1; 1970, c. 421; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 5C M.J. Damages, § 27.

§ 8.01-37.1. Claims for medical services provided by United States; proof of reasonable value.

Whenever any person sustains personal injuries caused by the alleged negligence of another, and a claim against any person alleged to be liable is created in favor of the United States under federal law (42 U.S.C. § 2651 et seq.) for the reasonable value of medical, surgical or dental care and treatment provided, the injured party may, on behalf of the United States, claim the reasonable value of the medical services provided as an element of damages in a civil action against the person alleged to be liable. It shall not be required that the United States intervene in the action or be made a party in order to establish its claim. A sworn written statement of the authorized representative of the department or agency providing such services prepared in accordance with the regulations promulgated pursuant to 42 U.S.C. § 2652 shall be admissible as evidence of the reasonable value of the care and treatment provided.

(1984, c. 42; 1985, c. 205.)

CASE NOTES

No distinguishing between injured infants and injured adults. - This statute does not distinguish between injured infants and injured adults as it uses the term "injured persons." Hutto v. BIC Corp., 800 F. Supp. 1367 (E.D. Va. 1992).

Parents' cause of action for medical expenses accrued at the time they became liable to pay injured minor's medical bills. Hutto v. BIC Corp., 800 F. Supp. 1367 (E.D. Va. 1992).

§ 8.01-38. Tort liability of hospitals.

Hospital as referred to in this section shall include any institution within the definition of hospital in § 32.1-123.

No hospital, as defined in this section, shall be immune from liability for negligence or any other tort on the ground that it is a charitable institution unless (i) such hospital renders exclusively charitable medical services for which service no bill for service is rendered to, nor any charge is ever made to the patient or (ii) the party alleging such negligence or other tort was accepted as a patient by such institution under an express written agreement executed by the hospital and delivered at the time of admission to the patient or the person admitting such patient providing that all medical services furnished such patient are to be supplied on a charitable basis without financial liability to the patient. However, notwithstanding the provisions of § 8.01-581.15 a hospital which is exempt from taxation pursuant to § 501(c)(3) of Title 26 of the United States Code (Internal Revenue Code of 1954) and which is insured against liability for negligence or other tort in an amount not less than $500,000 for each occurrence shall not be liable for damage in excess of the limits of such insurance, or in actions for medical malpractice pursuant to Chapter 21.1 (§ 8.01-581.1 et seq.) for damages in excess of the amount set forth in § 8.01-581.15 .

(Code 1950, § 8-629.2; 1974, c. 552; 1976, c. 765; 1977, c. 617; 1983, c. 496; 1986, cc. 389, 454; 2000, c. 464.)

The 2000 amendments. - The 2000 amendment by c. 464 substituted "for damages in excess of the amount set forth in § 8.01-581.15 " for "the lesser of the limits of such insurance or $1 million" at the end of the second paragraph.

Law review. - For survey of Virginia law on torts for the year 1973-1974, see 60 Va. L. Rev. 1615 (1974). For survey of Virginia tort law for the year 1975-1976, see 62 Va. L. Rev. 1489 (1976). For survey of Virginia law on torts for the year 1976-77, see 63 Va. L. Rev. 1491 (1977). For a re-examination of sovereign tort immunity in Virginia, see 15 U. Rich. L. Rev. 247 (1981).

For article, "Charitable Immunity: What Price Hath Charity?," see 28 U. Rich. L. Rev. 953 (1994).

For a review of damages in medical malpractice in Virginia, see 33 U. Rich. L. Rev. 919 (1999).

For article, "Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law," see 73 Wash & Lee Law Rev. 557 (2016).

Michie's Jurisprudence. - For related discussion, see 9B M.J. Hospitals and Sanitariums, § 7.

CASE NOTES

Immunity for hospitals providing medical care free of charge. - The Virginia General Assembly eliminated charitable immunity for most hospitals, essentially limiting its application to hospitals that provide medical care free of charge. Davidson v. Colonial Williamsburg Found., 817 F. Supp. 611 (E.D. Va. 1993).

Under this section, charitable hospitals are immune from liability in Virginia if they do not charge patients for services and 26 U.S.C. § 501(c)(3) tax-exempt hospitals have limited liability. Power v. Arlington Hosp. Ass'n, 42 F.3d 851 (4th Cir. 1994).

College was not entitled to use the defense of charitable immunity from tort liability, where the charter did not specifically restrict operation of the college to charitable or eleemosynary purposes nor was the manner of operation of the college strictly charitable in nature. Radosevic v. Virginia Intermont College, 633 F. Supp. 1084 (W.D. Va. 1986).

The public policy in Virginia favors a more restrictive approach to determining that an institution is immune from tort liability on the grounds of the charitable immunity doctrine. This is evidenced by the legislative abrogation of the doctrine of charitable immunity for hospitals and the judicial reluctance to automatically apply a charitable label to various institutions. Radosevic v. Virginia Intermont College, 633 F. Supp. 1084 (W.D. Va. 1986).

The 1986 amendment to this section merely clarified its application. Etheridge v. Medical Center Hosps., 237 Va. 87 , 376 S.E.2d 525 (1989).

Relationship to other laws. - Section 501(c)(3) health care provider was not immune from tort liability even though it was not a hospital as defined in § 32.1-123, because the provider did not operate as a charitable institution. It was created to correct billing and collection issues, the ratio of its revenue to its charity work cost was disproportionate, it used a profit-based bonus system, and it did not accept charitable gifts. Univ. of Va. Health Servs. Found. v. Morris, 275 Va. 319 , 657 S.E.2d 512, 2008 Va. LEXIS 39 (2008).

CIRCUIT COURT OPINIONS

Provider of blood products. - Charitable immunity doctrine was not applicable to the blood provider in a wrongful death action brought after the deceased allegedly died from contaminated blood, because the provider supplied the hospital with blood products for a fee, and the hospital, in turn, charged its patients for the cost of providing the blood products, over $10,000 in the deceased's case; the indirect provision of blood and blood products by the provider did not make it a charity and did not make the deceased a recipient of a charitable benefit. Rogers v. Va. Blood Servs., 64 Va. Cir. 346, 2004 Va. Cir. LEXIS 195 (Richmond 2004).

Health Services Foundation was not entitled to use the defense of charitable immunity. - University health services foundation did not qualify for charitable immunity under § 8.01-38 because the foundation's articles of incorporation did not exclusively limit the foundation to charitable purposes, charity was not the exclusive or even the central purpose in the foundation's formation, and the foundation derived none of its revenue from charitable donations. Morris v. Univ. of Va. Health Servs. Found., 72 Va. Cir. 193, 2006 Va. Cir. LEXIS 293 (Charlottesville 2006), aff'd, remanded, 275 Va. 319 , 657 S.E.2d 512, 2008 Va. LEXIS 39 (2008).

Foundation not a hospital for purposes of bar on charitable immunity. - Foundation was not a hospital under § 8.01-38 , as the foundation was not a "facility" pursuant to § 32.1-123; rather, it was the entity that employed the physicians who cared for patients at a university hospital. The fact that the foundation owned and operated several clinics in outlying areas did not change this analysis. MacArthur v. Univ. of Va. Health Servs. Found., 72 Va. Cir. 322, 2006 Va. Cir. LEXIS 294 (Charlottesville December 8, 2006), rev'd, Univ. of Va. Health Servs. Found. v. Morris, 275 Va. 319 , 657 S.E.2d 512 (2008) (see note above).

Because a foundation did not own facilities and did not operate as a hospital, and was unlicensed, it was not a hospital for purposes of the statutory bar on charitable immunity; the foundation's plea of charitable immunity was sustained in a negligence action because, inter alia, the foundation operated for a charitable purpose of furthering the education of medical students. Wright v. Silver, 72 Va. Cir. 500, 2007 Va. Cir. LEXIS 14 (Norfolk 2007).

Nursing facility was a charitable institution. - In a nursing facility resident's action for damages following a fire, the facility, which was not licensed pursuant to § 32.1-123 et seq., was immune from tort liability under the doctrine of charitable immunity and did not fall under the scope of § 8.01-38 's denial of charitable immunity to hospitals. The facility's charter established the rebuttable presumption that it was a charitable institution, and the resident failed to rebut that presumption. Rogers v. Va. Home, 83 Va. Cir. 423, 2011 Va. Cir. LEXIS 138 (Richmond Oct. 5, 2011).

Nursing home's plea bar was sustained in a medical malpractice and negligence action brought by an administrator of a deceased patient's estate because the evidence proved that the home operated as a charity, immune from the tort claims under the statute; it was organized as a non-stock, not-for-profit corporation, and its articles of incorporation stated a charitable purpose. Estate of Zabrovskiy v. Beth Sholom Home of Va., Inc., 85 Va. Cir. 470, 2012 Va. Cir. LEXIS 191 (Henrico County Oct. 25, 2012).

§ 8.01-38.1. Limitation on recovery of punitive damages.

In any action accruing on or after July 1, 1988, including an action for medical malpractice under Chapter 21.1 (§ 8.01-581.1 et seq.), the total amount awarded for punitive damages against all defendants found to be liable shall be determined by the trier of fact. In no event shall the total amount awarded for punitive damages exceed $350,000. The jury shall not be advised of the limitation prescribed by this section. However, if a jury returns a verdict for punitive damages in excess of the maximum amount specified in this section, the judge shall reduce the award and enter judgment for such damages in the maximum amount provided by this section.

(1987, c. 255.)

Cross references. - As to award of punitive damages for stalking, see § 8.01-42.3 .

Law review. - For comment, "The Constitutional Attack on Virginia's Medical Malpractice Cap: Equal Protection and the Right to Jury Trial," see 22 U. Rich. L. Rev. 95 (1987).

For case note, "Punitive Damage 'Overkill' After TXO Production Corp. v. Alliance Resources: The Need for a Congressional Solution," see 36 Wm. & Mary L. Rev. 751 (1995).

For a note, "The Supreme Court's Backwards Proportionality Jurisprudence: Comparing Judicial Review of Excessive Criminal Punishments and Excessive Punitive Damages Awards," see 86 Va. L. Rev. 1249 (2000).

For Article, "Why Federal Rule of Evidence 403 is Unconstitutional, and Why it Matters," see 47 U. Rich. L. Rev. 1077 (2013).

Research References. - Conason, Deutsch, and Raffa, Damages in Tort Actions (Matthew Bender).

Michie's Jurisprudence. - For related discussion, see 5C M.J. Damages, § 74.

CASE NOTES

Constitutionality. - This section does not violate the due process guarantees secured by the Federal and Virginia Constitutions. Wackenhut Applied Technologies Ctr., Inc. v. Sygnetron Protection Sys., 979 F.2d 980 (4th Cir. 1992).

"Any action" not limited to unintentional tort actions. - There is no definitional language indicating that the term "any action" is limited to unintentional tort actions. Wackenhut Applied Technologies Ctr., Inc. v. Sygnetron Protection Sys., 979 F.2d 980 (4th Cir. 1992).

Review of punitive damage awards can no longer be conducted under "excessiveness" standard. - In order to comport with the due process requirements of the Fifth Amendment, post-trial and appellate review of punitive damage awards in the federal courts of the Fourth Circuit, based upon state statutes and common law, can no longer be conducted under Virginia's "excessiveness" standard but must instead proceed under standards similar to those enunciated by the Alabama courts in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986), Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. 1989), and Central Ala. Elec. Coop. v. Tapley, 546 So. 2d 371 (Ala. 1989), as upheld in Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991); Johnson v. Hugo's Skateway, 949 F.2d 1338 (4th Cir. 1991), aff'd in part, rev'd in part, upon reh'g en banc, 974 F.2d 1408 (4th Cir. 1992).

Cap applies to action as a whole. - The plain meaning of this section dictates that the cap on punitive damage awards applies to the action as a whole and not to each defendant. Al-Abood v. El-Shamari, 217 F.3d 225, 2000 U.S. App. LEXIS 15437 (4th Cir. 2000).

Punitive damages award set aside. - In an action for a continuing trespass on real property due to encroaching fiber optic lines that were not installed by defendant business, the trial court's award of punitive damages to the landowners was reversed, as: (1) insufficient evidence was presented to support the same; (2) the business attempted to negotiate in good faith for their removal once it learned of their presence; (3) the landowners never sought an injunction requiring their immediate removal, but instead sought a cease and desist order three weeks prior to trial; and (4) in response to said letter, the business had already initiated the process to begin removal of the lines; hence, the business did not act with the degree of recklessness required to support a punitive damages award. Xspedius Mgmt. Co. of Va., L.L.C. v. Stephan, 269 Va. 421 , 611 S.E.2d 385, 2005 Va. LEXIS 36 (2005).

Where a former employee sued his former supervisor and employer for malicious prosecution and defamation, the trial court erred in denying the employer's motion to strike the punitive damages claim asserted against it, as there was no evidence it engaged in, authorized, or ratified the supervisor's actions, and the evidence did not establish that the supervisor was in a sufficiently high position so that his actions were actually the employer's actions for purposes of punitive damages liability. Egan v. Butler, 290 Va. 62 , 772 S.E.2d 765, 2015 Va. LEXIS 86 (2015).

Punitive damages award reduced. - In this malicious prosecution action, while there was a legally sufficient evidentiary basis for the jury's return of punitive damages, as a matter of law, the punitive damage award must be reduced to a total of $350,000 because defendants allowed the criminal prosecution of the employee to continue despite unequivocally knowing that either the story the dockworker relayed to the regional security investigator, that the regional security investigator relayed to another dockworker and the police was false, or the dockworker's handwritten statement was false, or both. Bennett v. R&L Carriers Shared Servs., LLC,, 2010 U.S. Dist. LEXIS 104884 (E.D. Va. Sept. 30, 2010).

Trial court abused its discretion in setting aside the jury award for compensatory damages. - The record did not support the conclusion that the award was excessive or was the product of jury confusion and commingling, and the trial court failed to consider elements of recovery upon which the compensatory damage award could be based and the evidence which supported those elements. Gov't Micro Res., Inc. v. Jackson, 271 Va. 29 , 624 S.E.2d 63, 2006 Va. LEXIS 1 (2006).

CIRCUIT COURT OPINIONS

Punitive damages based on driver's falling asleep. - Allegation that defendant had driven all night before transporting plaintiff's decedents could support a cause of action that would result in an award of punitive damages if the plaintiff were to prove that defendant driver knew or should have known that he was likely to fall asleep and as a result showed a reckless disregard for human life, and accordingly plaintiff's case would not be dismissed pending further discovery; nevertheless, plaintiff's request for $1,000,000 in punitive damages exceeded the statutory limit in § 8.01-38.1 . Bowen v. Tucker, 58 Va. Cir. 524, 2002 Va. Cir. LEXIS 173 (Wise County 2002).

Reduction of punitive damages ad damnum clause to statutory cap. - Court reduced the plaintiff's punitive damage ad damnum claim for her accident injuries from $500,000 to the $350,000 cap and found the plaintiff sufficiently alleged the truck driver's and the driver's employer's acts regarding prior knowledge of defective brakes, steering, and tires, and excessive length, to support punitive damages against both of them if proven. Small v. Hanson, 66 Va. Cir. 445, 2000 Va. Cir. LEXIS 649 (Nelson County 2000).

Because a resident's injury due to malpractice occurred on February 7, 2009, which was between July 1, 2008 and June 30, 2012, § 8.01-581.15 limited the resident's total recovery to $2 million, inclusive of compensatory and punitive damages, and § 8.01-38.1 limited punitive damages to a maximum award of $350,000; the statutory caps did not limit the resident's post-judgment interest under § 8.01-382 . Crouse v. Med. Facilities of Am. XLVIII, 86 Va. Cir. 168, 2013 Va. Cir. LEXIS 7 (Roanoke Jan. 22, 2013).

Although pre-judgment interest is limited by statutory caps, neither § 8.01-581.15 nor § 8.01-38.1 imposes a limit on post-judgment interest under § 8.01-382 . Crouse v. Med. Facilities of Am. XLVIII, 86 Va. Cir. 168, 2013 Va. Cir. LEXIS 7 (Roanoke Jan. 22, 2013).

Remittitur of punitive damages to equal compensatory damages award. - Jury's verdict in a defamation case required that it be remitted because the verdict was so excessive as to shock the conscience of the court and compelled the conclusion that the verdict was the product of passion or prejudice or some misunderstanding of the facts or the law. The court, therefore, awarded compensatory damages in a lesser amount and awarded punitive damages in an amount equal to the compensatory damages awarded. Thomas v. Psimas, 101 Va. Cir. 455, 2019 Va. Cir. LEXIS 19 (Norfolk Jan. 17, 2019).

Pleading of punitive damages. - While this section places a $350,000 statutory cap on punitive damages, by the clear language of the statute, the cap pertains to the amount of punitive damages that may recovered by a successful party, not the amount that may be sought in the complaint and to which a jury may find a defendant liable. Fid. Nat'l Title Ins. Co. v. Wash. Settlement Group, LLC, 87 Va. Cir. 77, 2013 Va. Cir. LEXIS 136 (Fairfax County Sept. 4, 2013).

Demurrer sustained as to punitive damages claim. - Demurrer was overruled as to punitive damages claim because the former employee alleged that the former employer's conduct was "willful and wanton." Hatten v. Campbell, 71 Va. Cir. 95, 2006 Va. Cir. LEXIS 118 (Chesterfield County 2006).

Animal advocacy group's demurrer was sustained as to the dog owners' claim for intentional infliction of emotional distress because reasonable people could find that taking the owners' dog and killing it was outrageous, the factual allegations sufficiently alleged the group's authorization of the act, and the owners could plead more than the statutory limit for punitive damages. Zarate v. People for the Ethical Treatment of Animals, 93 Va. Cir. 430, 2016 Va. Cir. LEXIS 105 (Norfolk June 14, 2016).

§ 8.01-39. Completion or acceptance of work not bar to action against independent contractor for personal injury, wrongful death or damage to property.

In any civil action in which it is alleged that personal injury, death by wrongful act or damage to property has resulted from the negligence of or breach of warranty by an independent contractor, it shall not be a defense by such contractor to such action that such contractor has completed such work or that such work has been accepted as satisfactory by the owner of the property upon which the work was done or by the person hiring such contractor.

Nothing contained herein shall be construed to limit, modify or otherwise affect the provisions of § 8.01-250 .

(Code 1950, § 8-629.3; 1974, c. 669; 1977, c. 617.)

Law review. - For survey of Virginia law on torts for the year 1973-1974, see 60 Va. L. Rev. 1615 (1974).

For article reviewing recent developments and changes in legislation, case law, and Virginia Supreme Court Rules affecting civil litigation, "Civil Practice and Procedure," see 40 U. Rich. L. Rev. 95 (2005).

Michie's Jurisprudence. - For related discussion, see 3C M.J. Commercial Law, § 13.

Applied in Factory Mut. Ins. Co. v. DLR Contr., Inc.,, 2005 U.S. Dist. LEXIS 25876 (E.D. Va. Oct. 20, 2005).

§ 8.01-40. Unauthorized use of name or picture of any person; punitive damages; statute of limitations.

  1. Any person whose name, portrait, or picture is used without having first obtained the written consent of such person, or if dead, of the surviving consort and if none, of the next of kin, or if a minor, the written consent of his or her parent or guardian, for advertising purposes or for the purposes of trade, such persons may maintain a suit in equity against the person, firm, or corporation so using such person's name, portrait, or picture to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use. And if the defendant shall have knowingly used such person's name, portrait or picture in such manner as is forbidden or declared to be unlawful by this chapter, the jury, in its discretion, may award punitive damages.
  2. No action shall be commenced under this section more than 20 years after the death of such person.

    (Code 1950, § 8-650; 1977, c. 617; 2015, c. 710.)

REVISERS' NOTE.

The first sentence of former § 8-650 was transferred to § 18.2-216.1 since its import is purely penal. The civil remedy retained in § 8.01-40 A was expanded by removing the restriction that the unauthorized use must pertain to a Virginia resident. Subsection A was otherwise rewritten without material change in substance.

Subsection B establishes a twenty-year limitation period which begins upon the death of the person whose name is misused.

________

Cross references. - For rules of court as to practice and procedure in civil actions, see Rules 3:1 through 3:25.

The 2015 amendments. - The 2015 amendment by c. 710 substituted "punitive damages" for "exemplary damages" at the end of subsection A; and substituted "20 years" for "twenty years" in subsection B.

Law review. - For comment, "The Case for a Broader Right of Privacy in Virginia," see 7 Wm. & Mary L. Rev. 127 (1966). For survey of Virginia law on torts for the year 1976-77, see 63 Va. L. Rev. 1491 (1977).

For 1995 survey of civil practice and procedure, see 29 U. Rich. L. Rev. 897 (1995).

For a symposium, "Aggressive Newsgathering and the First Amendment," see 33 U. Rich. L. Rev. 1121 (2000).

For an essay, "Privacy and Celebrity: An Essay on the Nationalization of Intimacy," see 33 U. Rich. L. Rev. 1121 (2000).

For an article, "Protect the Press: A First Amendment Standard for Safeguarding Aggressive Newsgathering," see 33 U. Rich. L. Rev. 1143 (2000).

For an article, "Ride-alongs, Paparazzi, and Other Media Threats to Privacy," see 33 U. Rich. L. Rev. 1167 (2000).

For an article, "I Spy: The Newgatherer Under Cover," see 33 U. Rich. L. Rev. 1185 (2000).

For an article, "Qualified Intimacy, Celebrity, and the Case for a Newgathering Privilege," see 33 U. Rich. L. Rev. 1233 (2000).

Michie's Jurisprudence. - For related discussion, see 13B M.J. Names, § 2; 14B M.J. Photographs and Photographers, § 2; 16 M.J. Right of Privacy, § 1.

CASE NOTES

Constitutionality. - Subsection A of this section, as applied to the facts of the instant case - plaintiff's name was prominently featured in real estate flyer - is not constitutionally invalid under either the free-speech provisions of the First Amendment to the federal Constitution or the applicable provisions of Va. Const., Art. I, § 12. Town & Country Properties, Inc. v. Riggins, 249 Va. 387 , 457 S.E.2d 356 (1995).

This section is in derogation of the common law. Falwell v. Penthouse Int'l, Ltd., 521 F. Supp. 1204 (W.D. Va. 1981).

And therefore must be strictly construed. Falwell v. Penthouse Int'l, Ltd., 521 F. Supp. 1204 (W.D. Va. 1981).

Virginia recognizes no right of privacy other than that specifically conferred by this section. Falwell v. Penthouse Int'l, Ltd., 521 F. Supp. 1204 (W.D. Va. 1981).

No general right of privacy exists in the law of Virginia. Evans v. Sturgill, 430 F. Supp. 1209 (W.D. Va. 1977) (decided under prior law).

Claim of plaintiffs, a wife and children, regarding invasion of privacy could not withstand summary judgment because Virginia law recognized only a limited cause of action for invasion of privacy as to use of a name or picture of a plaintiff without authorization, pursuant to § 8.01-40 , and Virginia courts had never recognized a common-law tort of invasion of privacy. Bellotte v. Edwards,, 2010 U.S. App. LEXIS 15050 (4th Cir. July 21, 2010).

Except for the limited right conferred by this section. - See Evans v. Sturgill, 430 F. Supp. 1209 (W.D. Va. 1977) (decided under prior law).

Protective mantle extends to celebrities. - Ordinary citizens are entitled to the protective mantle of this section, and persons in a celebrity status should receive no less coverage in this respect. Town & Country Properties, Inc. v. Riggins, 249 Va. 387 , 457 S.E.2d 356 (1995).

Exception for matters that are newsworthy or of public interest. - An exception exists under this section for items that are "newsworthy" or "matters of public interest," which covers articles in newspapers and magazines, as well as pictures used to illustrate the articles, unless the picture bears no real relationship to the article or the article is an advertisement in disguise. Williams v. Newsweek, Inc., 63 F. Supp. 2d 734 (E.D. Va. 1999), aff'd, 202 F.3d 262 (4th Cir. 1999).

Promotional announcement of newsworthy event. - Though the evidence supported the jury's finding that a television station defamed a doctor by accusing him of sexually assaulting his patients, the use of the doctor's image in the station's promotional announcements was not an unauthorized use under this section, as the right of privacy did not extend to reports of newsworthy events. WJLA-TV v. Levin, 264 Va. 140 , 564 S.E.2d 383, 2002 Va. LEXIS 87 (2002).

Exception for uses that are incidental. - There is an exception to the statute for uses that are incidental to the purpose of the work, and according to this exception, a publisher will be liable for the publication of an unauthorized picture only if there is a direct and substantial connection between the appearance of the plaintiff's name or likeness and the main purpose and subject of the work. Williams v. Newsweek, Inc., 63 F. Supp. 2d 734 (E.D. Va. 1999), aff'd, 202 F.3d 262 (4th Cir. 1999).

Limitation period for actions under subsection A. - Subsection A is aimed at preventing the appropriation, without consent, of an individual's name or likeness while he is alive and for 20 years after he dies. It creates in an individual a species of property right in their name and likeness. Consequently, the limitation period contained in subsection B of § 8.01-243 should be applied. Lavery v. Automation Mgt. Consultants, Inc., 234 Va. 145 , 360 S.E.2d 336 (1987).

Subsection B is a cutoff statute, not a statute of limitation. - The legislature intended subsection B to be a cutoff statute, and, as such, to operate as an outside time period in which true statutes of limitations would operate and beyond which no suit based on subsection A could be maintained. The General Assembly in enacting subsection B was not setting a time period within which suit must be brought, instead, it was providing a cutoff point after which suit could not be brought. Lavery v. Automation Mgt. Consultants, Inc., 234 Va. 145 , 360 S.E.2d 336 (1987).

Notwithstanding the characterizations of subsection B of this section made by the revisers' notes under §§ 8.01-228 and 8.01-243 , subsection B of this section is not the statute of limitations applicable to a cause of action under subsection A. Lavery v. Automation Mgt. Consultants, Inc., 234 Va. 145 , 360 S.E.2d 336 (1987).

Use of New York decisions in construing section. - This section is substantially similar to § 51 of the New York Civil Rights Law, and the U.S. Court of Appeals for the Fourth Circuit would look to the New York courts for guidance in construing the Virginia privacy statute. Falwell v. Flynt, 797 F.2d 1270 (4th Cir. 1986), rev'd on other grounds, 485 U.S. 46, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988).

The General Assembly has fixed the "knowingly used" standard for punitive damages in the type of action under this section. The Virginia Supreme Court shall not engage in judicial legislation by adding ingredients not specified in the statute. Town & Country Properties, Inc. v. Riggins, 249 Va. 387 , 457 S.E.2d 356 (1995).

Proof of willful, wanton and/or malicious conduct is admissible, but unneeded for punitive damages for improper use of name. PTS Corp. v. Buckman, 263 Va. 613 , 561 S.E.2d 718, 2002 Va. LEXIS 58 (2002).

"Person." - Corporation could not have maintained an action under § 8.01-40 because the corporation was not a "person" under § 8.01-40 because the text of § 8.01-40 made clear that it applied only to natural persons, and the corporation was not a natural person. Silver Ring Splint Co. v. Digisplint, Inc., 567 F. Supp. 2d 847, 2008 U.S. Dist. LEXIS 48621 (W.D. Va. 2008).

An individual holds a property interest in his or her reputation, which represents the individual's personal identity in the community and which is the thing of value in the individual's name. Nossen v. Hoy, 750 F. Supp. 740 (E.D. Va. 1990).

Use of candidate's name or picture by political organization. - This section or its common-law counterparts in other states, may not be construed to prohibit political organizations from using a candidate's name or picture in a political campaign without his consent. Such an expansive interpretation of the law of tortious appropriation of name would trench on important freedoms secured by the First Amendment. Friends of Gramm v. Americans for Gramm, 587 F. Supp. 769 (E.D. Va. 1984).

Interview in magazine not for trade or advertising purpose. - Plaintiff minister's allegations that an interview conducted and published by defendant journalists and magazine invaded his privacy by commercializing his personality failed to state a claim upon which relief could be granted, since Virginia recognizes no common-law action for invasion of privacy, and the interview did not, as a matter of law, qualify as being for a trade or advertising purpose under this section. Falwell v. Penthouse Int'l, Ltd., 521 F. Supp. 1204 (W.D. Va. 1981).

Release of internet screen name is not an unauthorized use of a name. - Release of an Internet customer's screen name to an unknown third-party by an Internet access service provider, where the third-party allegedly published intimate details about the customer on a listserve, did not violate § 8.01-40 because (1) the provider released a fictitious name, and not a picture, and (2) the release was not made for trade purposes. Motise v. Am. Online, Inc., - F. Supp. 2d - , 2005 U.S. Dist. LEXIS 36991 (E.D. Va. June 24, 2005).

"False light" invasion of privacy not actionable. - Allegations that an interview conducted and published by defendant journalists and magazine invaded plaintiff minister's privacy by placing the plaintiff in a "false light" in the public eye failed to state a claim upon which relief could be granted, since Virginia recognizes no common-law action for invasion of privacy, and the acts complained of did not fall within the narrow purview of this section. Falwell v. Penthouse Int'l, Ltd., 521 F. Supp. 1204 (W.D. Va. 1981).

Where advertising parody of plaintiff published in defendants' magazine was not reasonably believable, and contained a disclaimer, publication of the parody did not constitute a use of plaintiff's name and likeness for purposes of trade. Falwell v. Flynt, 797 F.2d 1270 (4th Cir. 1986), rev'd on other grounds, 485 U.S. 46, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988).

Plaintiff's name was used for advertising purposes in a manner forbidden by this section where plaintiff's ex-wife specifically directed the printer who set the type and distributed the real estate flyer "to make the words John Riggins bigger than the other words" and to make them "stand out." Plaintiff's name, therefore, was an integral part of the flyer and could not be deemed merely incidental to the flyer's clear commercial message. Town & Country Properties, Inc. v. Riggins, 249 Va. 387 , 457 S.E.2d 356 (1995).

Motion to dismiss a claim for statutory invasion of privacy was denied because the allegations of the plaintiff, a former Air Force Academy cadet, satisfied the requirements of § 8.01-40 and fell under none of its exceptions; the use of his name and "facts" about his conduct and legal troubles was actionable because he properly alleged that the information was used as an advertisement to solicit business for the defendants, a website publisher and its officers and employees. Wiest v. E-Fense, Inc., 356 F. Supp. 2d 604, 2005 U.S. Dist. LEXIS 3474 (E.D. Va. 2005).

Misappropriation not found. - Under subsection A of § 8.01-40 , a bodybuilder failed to establish misappropriation of his image by the CEO of a television network to advertise the CEO's company's commercial diet shake, as the image, in its entirety, was only distributed for use in the advertisement of the network's weight loss challenge diet shake and not to promote the CEO's commercial shake. Busch v. Christian Broad. Network, Inc.,, 2007 U.S. Dist. LEXIS 27171 (E.D. Va. Apr. 12, 2007).

Potential client's use of an attorney's name in proposing the attorney to a court and opposing counsel as an expert witness concerning the reasonableness of attorney fees did not constitute unauthorized use of the name since such use did not constitute advertising. Devil's Advocate, LLC v. Zurich Am. Ins. Co., 666 Fed. Appx. 256, 2016 U.S. App. LEXIS 20952 (4th Cir. 2016).

Making sworn statements resulting in arrest warrant. - Plaintiff's actions in making sworn statements to the Commonwealth's attorney, resulting in the issuance of a warrant for the arrest of the defendant for felonious theft of an airplane, did not fall within the narrow purview of the limited right of privacy created by this section. Evans v. Sturgill, 430 F. Supp. 1209 (W.D. Va. 1977) (decided under prior law).

Statements about court-martial not public record. - Despite defendant website publisher and individuals' argument to the contrary, publication of statements about the court-martial of the plaintiff, a former Air Force Academy cadet, was not protected because the trial was a matter of public record; the issue was invasion of privacy, and the defendants' reliance on a public record was misplaced. Wiest v. E-Fense, Inc., 356 F. Supp. 2d 604, 2005 U.S. Dist. LEXIS 3474 (E.D. Va. 2005).

Applied in Ward v. Connor, 495 F. Supp. 434 (E.D. Va. 1980); Brown v. ABC, 704 F.2d 1296 (4th Cir. 1983); Superformance Int'l, Inc. v. Hartford Cas. Ins. Co., 203 F. Supp. 2d 587, 2002 U.S. Dist. LEXIS 9856 (E.D. Va. 2002).

CIRCUIT COURT OPINIONS

Report on local car dealership found to be newsworthy item and of public interest. - Demurrer was sustained as to plaintiffs' claims that defendants misappropriated the owner's, name, likeness, or image under subsection A of § 8.01-40 , as reporting on a local car dealership issue was a newsworthy item and of public interest, and this claim could, in no way, be deemed a use of name for advertising purposes or for the purpose of trade within the meaning of § 8.01-40 according to the assertions made. Graham v. Young Broad. of Richmond, Inc., 60 Va. Cir. 376, 2002 Va. Cir. LEXIS 408 (Richmond 2002).

Name and likeness not used for advertising purposes. - Sustaining of the newspaper publisher's demurrer to the mother's complaint for unauthorized use of her name and likeness and defamation was proper under subsection A of § 8.01-40 because the mother's name and likeness were not used for advertising purposes and she could not, by innuendo, create defamatory implications where there were none. Compton v. Foster, 82 Va. Cir. 279, 2011 Va. Cir. LEXIS 173 (Russell County Feb. 23, 2011).

Monetary sanctions awarded in use of law firm name. - Imposition of monetary sanctions against the counsel for a limited liability company (LLC) and the sole member of the LLC was just and appropriate because the action that was filed by the LLC against an attorney, for misappropriation of the LLC's name and for legal malpractice, was frivolously filed. The LLC was created to mirror in name an entity belonging to the attorney, who was embroiled as a plaintiff in actions involving the sole member of the LLC, and for which the charter had lapsed out of status and been reinstated by the attorney. Leiser, Leiser & Hennessy, PLLC v. Leiser, 97 Va. Cir. 130, 2017 Va. Cir. LEXIS 314 (Fairfax County Nov. 2, 2017).

§ 8.01-40.1. Action for injury resulting from violation of Computer Crimes Act; limitations.

Any person whose property or person is injured by reason of a violation of the provisions of the Virginia Computer Crimes Act (§ 18.2-152.1 et seq.) may sue and recover damages as provided in § 18.2-152.12. An action shall be commenced before the earlier of (i) five years after the last act in the course of conduct constituting a violation of the Computer Crimes Act or (ii) two years after the plaintiff discovers or reasonably should have discovered the last act in the course of conduct constituting a violation of the Computer Crimes Act.

(1985, c. 92.)

Law review. - For article on Virginia's response to computer abuses, see 19 U. Rich. L. Rev. 85 (1984).

§ 8.01-40.2. Unsolicited transmission of advertising materials by facsimile machine.

  1. Any person aggrieved by the intentional electronic or telephonic transmission to a facsimile device of unsolicited advertising material may bring an action against the person responsible for the transmission to enjoin further violations and to recover the greater of (i) actual damages sustained, together with costs and reasonable attorneys' fees, or (ii) $500. Carriers or other companies which provide facsimile transmission services shall not be responsible for transmissions of unsolicited advertising materials by their customers. An action brought pursuant to this section shall be commenced within two years of the transmission.
  2. Any intentional transmission to a facsimile device of any unsolicited advertising material shall be a violation of the Virginia Consumer Protection Act (§ 59.1-196 et seq.).

    (1990, c. 246; 2003, c. 800.)

The 2003 amendments. - The 2003 amendment by c. 800 designated the existing provisions of the section as subsection A and added subsection B; and in the first sentence of subsection A, deleted "offering goods, real estate, or services for sale or lease" following "advertising material" in the introductory language and substituted "$500" for "$200" in clause (ii).

§ 8.01-40.3. Unauthorized dissemination, etc., of criminal history record information; civil action.

  1. Any person who disseminates, publishes, or maintains or causes to be disseminated, published, or maintained the criminal history record information as defined in § 9.1-101 of an individual pertaining to that individual's charge or arrest for a criminal offense and solicits, requests, or accepts money or other thing of value for removing such criminal history record information shall be liable to the individual who is the subject of the information for actual damages or $500, whichever is greater, in addition to reasonable attorney fees and costs.
  2. Nothing in this section shall be construed to impose liability on:
    1. An interactive computer service, as defined in 47 U.S.C. § 230(f), for content provided by another person.
    2. Any speech protected by Article I, Section 12 of the Constitution of Virginia.
  3. As used in this section, "criminal history record information" means the same as that term is defined in § 9.1-101 . (2015, cc. 414, 415.)

§ 8.01-40.4. Civil action for unlawful creation of image of another or unlawful dissemination or sale of images of another.

  1. Any person injured by an individual who engaged in conduct that is prohibited under § 18.2-386.1 or 18.2-386.2, whether or not the individual has been charged with or convicted of the alleged violation, may sue therefor and recover compensatory damages, punitive damages, and reasonable attorney fees and costs.
  2. No action shall be commenced under this section more than two years after the later of (i) the date of the last act in violation of § 18.2-386.1 or 18.2-386.2, (ii) the date on which such person attained 18 years of age, or (iii) the date on which such person discovered or reasonably should have discovered the prohibited conduct.
  3. Nothing in this section shall be construed to impose liability on an interactive computer service, as defined in 47 U.S.C. § 230(f), for content provided by another person.

    (2017, c. 656.)

Applied in Sheehy v. Williams, 850 S.E.2d 371, 2020 Va. LEXIS 139 (Nov. 25, 2020).

§ 8.01-41. Wrongful distraint, attachment.

If property be distrained for any rent not due, or attached for any rent not accruing, or taken under any attachment sued out without good cause, the owner of such property may, in an action against the party suing out the warrant of distress or attachment, recover damages for the wrongful distraint, seizure, or sale.

(Code 1950, § 8-651; 1977, c. 617.)

REVISERS' NOTE.

The former § 8-651 phrase "seizure, and also, if the property be sold, for the sale thereof" has been deleted and the words "distraint, seizure, or sale" substituted to conform with modern practice.

________

Cross references. - As to procedure when distress has been levied and tenant is unable to give forthcoming bond, see § 8.01-130.7 .

As to recovery for distress not wrongful, but irregular, see § 8.01-130.12 .

For rules of court governing practice and procedure in civil actions, see Rules 3:1 through 3:25.

Michie's Jurisprudence. - For related discussion, see 2A M.J. Attachment and Garnishment, § 85; 11B M.J. Landlord and Tenant, §§ 24, 26.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

The manifest intention of this section is to prevent the landlord from oppressing his tenant. The right to sue in damages for an illegal distress was recognized at common law and the enactment of the statute was in furtherance of the right so recognized. Gurfein v. Howell, 142 Va. 197 , 128 S.E. 644 (1925).

Ignorance no excuse. - The right to distrain or attach for rent has always been regarded by the courts as a most drastic one, and in order to restrain the landlord from a too free use of this power, he must exercise the same at his peril. The law presumes that he knows the amount of his tenant's indebtedness and ignorance on his part will not relieve him for compensatory damages for a mistake committed by him. Gurfein v. Howell, 142 Va. 197 , 128 S.E. 644 (1925).

As to reading of section in connection with § 8.01-551 and former § 8.01-552 , relating to the giving of attachment bonds, see Harris v. Lipson, 167 Va. 365 , 189 S.E. 349 (1937).

Action for trespass available. - Where a distress is made for rent pretended to be due, when in truth there is none due, and the goods distrained are not sold, the remedy is by action at common law, and trespass may be maintained. But the party suing is not obliged to bring trespass, he may waive the trespass and bring case. Olinger v. M'Chesney, 34 Va. (7 Leigh) 660 (1836).

Quashing of attachment does not imply lack of good cause. - Under this section the fact that an attachment is quashed on the ground that it was sued out without sufficient cause does not necessarily imply that there was lack of good cause. Harris v. Lipson, 167 Va. 365 , 189 S.E. 349 (1937).

When landlord liable for acts of agent. - A landlord who employs an agent to lease his property and receive the rents is not liable in damages for the act of the agent in unlawfully suing out a distress warrant against the tenant, unless he directed or approved the proceedings had under the distress warrant, or failed to repudiate such proceedings after full knowledge of them. Fishburne v. Engledove, 91 Va. 548 , 22 S.E. 354 (1895).

Measure of damages. - In the absence of any charge of fraud, malice, oppression, or other special aggravation, the measure of the plaintiff's damages is compensation for the injury suffered - such damages as are the natural and proximate result of the injury complained of. Fishburne v. Engledove, 91 Va. 548 , 22 S.E. 354 (1895).

In an action for illegal distress, instructions which ignore the right of plaintiff to recover nominal damages where an illegal levy has been made are erroneous under this section. Gurfein v. Howell, 142 Va. 197 , 128 S.E. 644 (1925).

Damages due for excessive distraint. - While a lien legally attaches to all property as might be on the premises when the lien is asserted or within 30 days prior to distraint, the landlord can distrain goods only to the extent necessary to satisfy the rent justly believed to be due, the tenant possessing an action for damages for excessive distraint. United States v. Melchiorre, 292 F. Supp. 305 (E.D. Va. 1968).

"Fair" damages erroneous. - Where a landlord distrains for an amount in excess of the rent due the tenant is entitled to recover at least nominal damages. But an instruction that in such a case the tenant is entitled to fair damages for wrong suffered is erroneous, as it is more than probable that "fair" means more than "compensation" to the average individual, and when the jury was told to find "fair damages" for the wrong suffered, instead of being told they could only compensate for the injury done, they conceived the idea, no doubt, that they had the right to punish instead of the power to compensate. Gurfein v. Howell, 142 Va. 197 , 128 S.E. 644 (1925).

Effect of failing to plead and prove special damages. - Where the notice of motion for illegally suing out a distress warrant did not allege and the proof failed to disclose any special damages suffered by plaintiff, a verdict for plaintiff in a substantial amount should be set aside as excessive. Gurfein v. Howell, 142 Va. 197 , 128 S.E. 644 (1925).

Plaintiff has burden of proving substantial damages. - In an action for illegal distress, the defendant was entitled to have the jury instructed that before the plaintiff could recover any except nominal damages, the burden was upon him to prove by a preponderance of the evidence that he had sustained substantial damages. To merely show that an illegal levy has been made is not sufficient to entitle the plaintiff to recover substantial damages. Gurfein v. Howell, 142 Va. 197 , 128 S.E. 644 (1925).

Plaintiff has burden of proving exemplary damages. - In order to recover exemplary damages in an action under this section the burden is upon the plaintiff to show not only that the act complained of is illegal, but that it was either malicious or oppressive, or that it was attended by especially aggravating circumstances. Evans v. Schuster, 178 Va. 61 , 16 S.E.2d 301 (1941).

When variance in allegations fatal. - In action for a wrongful distress, if the plaintiff allege that he held under a lease for five months, for $20.00 payable in repairs and labor, and at the trial it appear that the lease was for 12 months, for a money rent of $65.00, the variance will be fatal. Olinger v. M'Chesney, 34 Va. (7 Leigh) 660 (1836).

Value of property question of fact. - In an action for illegal distress the price obtained at a forced sale is not the sole criterion as to the value of the goods levied on. The value of the property at the time of the levy is a question of fact to be determined by the court or the jury trying the issue. Gurfein v. Howell, 142 Va. 197 , 128 S.E. 644 (1925).

What question for court and what for jury. - In an action under this section it was held that the question of exemplary damages should not have been submitted to the jury, since it was for the court to say whether the evidence tended to establish a proper case for their allowance, and for the jury to determine in such case whether they should be allowed. Evans v. Schuster, 178 Va. 61 , 16 S.E.2d 301 (1941).

Judgment in another action not evidence. - Judgment for the tenant in an action of unlawful detainer brought by the landlord is not evidence in a proceeding under this section that no rent was due at the time the distress warrant was sued out. Fishburne v. Engledove, 91 Va. 548 , 22 S.E. 354 (1895).

§ 8.01-42. Loss or injury to clothing in dyeing, dry cleaning, or laundering.

No person engaged in the business of dyeing, dry cleaning, or laundering wearing apparel, cloth or other articles, shall be liable, or in any action or suit against him be held liable, for the loss of, or injury to, any wearing apparel, cloth or other articles delivered to him to be dyed, dry cleaned, or laundered, in an amount greater than the purchase price minus depreciation of such wearing apparel, cloth or other articles, unless at the time of the delivery to him of any such wearing apparel, cloth or other articles, the value of the same, and when there is more than one piece or article the value of each piece or article, be agreed upon and evidenced by a writing stating such value, or separate values when there is more than one piece or article, signed by him; provided, however, that:

  1. Nothing in this section contained shall be construed as requiring of any such person more than the exercise of such degree of care as is now imposed by existing law;
  2. In no event shall any such person be held liable in any suit or action involving any such loss or injury for any sum greater than the damages suffered, and proved, by the plaintiff therein when such damages would not under the rules of law existing prior to June 18, 1920, exceed the purchase price minus depreciation of such wearing apparel, cloth, or other article;
  3. Nothing in this section shall be construed as interfering with or inhibiting, or impairing the obligation of, any written contract between any hotel, railroad company, steamboat company or other patron and any person engaged in the business of dyeing, dry cleaning, or laundering of wearing apparel, cloth or other article, in relation to such work;
  4. No liability shall rest upon or be borne by any hotel for any loss of or damage to wearing apparel, cloth or other article, the property of any guest of such hotel who shall have delivered, or caused the same to have been delivered, for dyeing, dry cleaning, or laundering to any person engaged in the business of dyeing, dry cleaning, or laundering.
  5. [Repealed.]

    (Code 1950, § 8-654; 1977, cc. 192, 617.)

Editor's note. - Pursuant to § 30-152 and Acts 1977, c. 617, cl. 4, the Code Commission has incorporated in § 8.01-42 as set out above the changes made in former § 8-654, corresponding to this section, by amendment in Acts 1977, c. 192. The amendment made the section applicable to dry cleaning as well as dyeing and laundering, substituted "greater than the purchase price minus depreciation of" for "exceeding twenty times the charges made or to be made by him for the work done or contemplated to be done on any" near the middle of the introductory paragraph, substituted "the purchase price minus depreciation of such wearing apparel, cloth, or other article" for "twenty times the amount of such charges" at the end of subdivision 2, and deleted former subdivision 5, which required the price to be charged, and a reference to the section, to be printed on laundry slips and similar slips used in the business.

§ 8.01-42.1. Civil action for racial, religious, or ethnic harassment, violence or vandalism.

  1. An action for injunctive relief or civil damages, or both, shall lie for any person who is subjected to acts of (i) intimidation or harassment, (ii) violence directed against his person, or (iii) vandalism directed against his real or personal property, where such acts are motivated by racial, religious, gender, disability, gender identity, sexual orientation, or ethnic animosity.
  2. Any aggrieved party who initiates and prevails in an action authorized by this section shall be entitled to damages, including punitive damages, and in the discretion of the court to an award of the cost of the litigation and reasonable attorney fees in an amount to be fixed by the court.
  3. The provisions of this section shall not apply to any actions between an employee and his employer, or between or among employees of the same employer, for damages arising out of incidents occurring in the workplace or arising out of the employee-employer relationship.
  4. As used in this section:

    "Disability" means a physical or mental impairment that substantially limits one or more of a person's major life activities.

    (1988, c. 492; 2020, cc. 746, 1171.)

Editor's note. - Acts 2020, cc. 746 and 1171, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020, c. 746, cl. 3 provides: "That the provisions of this act shall not become effective unless an appropriation effectuating the purposes of this act is included in a general appropriation act passed in 2020 by the General Assembly that becomes law."

The 2020 amendments. - The 2020 amendments by cc. 746 and 1171 are identical, and in subsection A, inserted "gender, disability, gender identity, sexual orientation"; in subsection B, substituted "attorney fees" for "attorneys' fees"; added subsection D and made stylistic changes.

Law review. - For Comment, "Spelling out LGBT: Enumerating Sexual Orientation in Virginia's Anti-Bullying Law," see 47 U. Rich. L. Rev. 1373 (2013).

Michie's Jurisprudence. - For related discussion, see 3B M.J. Civil Rights, § 2.

CASE NOTES

Actions for religious discrimination in workplace not barred. - Although subsection (c) of this section is perhaps inartfully crafted in that it does not make it clear on its face that it must be read in conjunction with not only the remaining provisions of the same statute but also all related state and federal proscriptions that allow a cause of action for religious discrimination in the workplace, it simply does not preclude such suit if the plaintiff can meet the burden of proof. Cary v. SSA, - F. Supp. 2d - , 2001 U.S. Dist. LEXIS 9813 (E.D. Va. July 11, 2001).

Evidence sufficient to support finding of violation of this section. - The jury's finding that plaintiff was racially intimidated or harassed in violation of this section was supported by sufficient evidence where the plaintiff was the only black person in an otherwise totally white skating rink, and without prior warning, within an hour of the rink's closing, the plaintiff was waved off the floor and was told "They want to see you in the back room." Johnson v. Hugo's Skateway, 949 F.2d 1338 (4th Cir. 1991), aff'd in part, rev'd in part, upon reh'g en banc, 974 F.2d 1408 (4th Cir. 1992).

Award of compensatory and punitive damages. - Circuit court properly found - after a jury awarded compensatory and punitive damages to a worker stemming from the intentional statutory torts of racial harassment and stalking - that the evidence, consisting solely of mental anguish, emotional distress, and humiliation, was sufficient to support the jury's award of compensatory damages to a worker because a company and its president conceded liability on a worker's claims for racial harassment and stalking, both statutes expressly permitted compensatory and punitive damages, and neither required proof of physical injury. N. Va. Kitchen, Bath & Basement, Inc. v. Ellis, 856 S.E.2d 593, 2021 Va. LEXIS 37 (Apr. 15, 2021).

Awards of attorneys' fees under this section are upheld on appeal unless under all the facts and circumstances the award is clearly wrong. Johnson v. Hugo's Skateway, 949 F.2d 1338 (4th Cir. 1991), aff'd in part, rev'd in part, upon reh'g en banc, 974 F.2d 1408 (4th Cir. 1992).

CIRCUIT COURT OPINIONS

Claim not proper. - Trial court concluded that the first employee, second employee, corporation, and holding company's demurrer should be granted without prejudice to the business invitee to amend, as the business invitee did not plead sufficient factual allegations to support a cause of action under the hate crime statute, § 8.01-42.1 . Salmeron v. Wendy's Int'l, Inc., 70 Va. Cir. 247, 2006 Va. Cir. LEXIS 69 (Alexandria 2006).

§ 8.01-42.2. Liability of guest for hotel damage.

Any registered guest in a hotel, motel, inn or other place offering to the public transitory lodging or sleeping accommodations for compensation shall be civilly liable to the innkeeper for all property damage to such accommodation or its furnishings which occurs during the period of such person's occupancy when such damage results (i) from the negligence of the guest or of any person for whom he is legally responsible or (ii) from the failure of the guest to comply with reasonable rules and regulations of which he is given actual notice by the innkeeper.

(1989, c. 426.)

Michie's Jurisprudence. - For related discussion, see 9B M.J. Hotels, Inns and Restaurants, § 6.

§ 8.01-42.3. Civil action for stalking.

  1. A victim has a civil cause of action against an individual who engaged in conduct that is prohibited under § 18.2-60.3, whether or not the individual has been charged or convicted for the alleged violation, for the compensatory damages incurred by the victim as a result of that conduct, in addition to the costs for bringing the action. If compensatory damages are awarded, a victim may also be awarded punitive damages.
  2. As used in this section:

    "Compensatory damages" includes damages for all of the defendant's acts prohibited by § 18.2-60.3.

    "Victim" means a person who, because of the conduct of the defendant that is prohibited under § 18.2-60.3, was placed in reasonable fear of death, criminal sexual assault, or bodily injury to himself or to a minor child of whom the person is a parent or legal guardian.

  3. No action shall be commenced under this section more than two years after the most recent conduct prohibited under § 18.2-60.3.

    (2001, c. 444.)

Cross references. - As to the statutory limitation on the recovery of punitive damages, see § 8.01-38.1 .

CASE NOTES

Relationship to other laws. - State court judgment in a creditor's favor on his civil cause of action for stalking in violation of Virginia law satisfied the willfulness element for nondischargability because the jury's verdict established that it must have found that debtor intended to cause fear or should have known that his conduct would cause fear. However, the judgment did not satisfy the malice element because in finding debtor liable for stalking, the Virginia jury could have found that he should have known that he would cause harm but not that he acted deliberately and intentionally. Moreno v. Basl (In re Basl),, 2018 Bankr. LEXIS 1164 (Bankr. E.D. Va. Apr. 18, 2018).

Award of compensatory and punitive damages. - Circuit court properly found - after a jury awarded compensatory and punitive damages to a worker stemming from the intentional statutory torts of racial harassment and stalking - that the evidence, consisting solely of mental anguish, emotional distress, and humiliation, was sufficient to support the jury's award of compensatory damages to a worker because a company and its president conceded liability on a worker's claims for racial harassment and stalking, both statutes expressly permitted compensatory and punitive damages, and neither required proof of physical injury. N. Va. Kitchen, Bath & Basement, Inc. v. Ellis, 856 S.E.2d 593, 2021 Va. LEXIS 37 (Apr. 15, 2021).

§ 8.01-42.4. Civil action for trafficking in persons.

  1. Any person injured by reason of (i) a violation of clause (iii), (iv), or (v) of § 18.2-48; (ii) a violation of § 18.2-348, 18.2-348.1, 18.2-349, 18.2-355, 18.2-356, 18.2-357, 18.2-357.1, or 18.2-368; or (iii) a felony violation of § 18.2-346.01 may sue therefor and recover compensatory damages, punitive damages, and reasonable attorney fees and costs.
  2. No action shall be commenced under this section more than seven years after the later of the date on which such person (i) was no longer subject to the conduct prohibited by clause (iii), (iv), or (v) of § 18.2-48 or § 18.2-348, 18.2-348.1, 18.2-349, 18.2-355, 18.2-356, 18.2-357, 18.2-357.1, or 18.2-368 or under a felony violation of § 18.2-346.01 or (ii) attained 18 years of age.

    (2016, cc. 557, 668; 2019, c. 458; 2021, Sp. Sess. I, c. 188.)

The 2019 amendments. - The 2019 amendment by c. 458 inserted "18.2-348.1" in subsections A and B.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 188, effective July 1, 2021, substituted " § 18.2-346.01" for " § 18.2-346" twice in the section.

§ 8.01-42.5. Civil action for female genital mutilation.

  1. Any person injured by an individual who engaged in conduct that is prohibited under § 18.2-51.7, whether or not the individual has been charged with or convicted of the alleged violation, may sue therefor and recover compensatory damages, punitive damages, and reasonable attorney fees and costs.
  2. No action shall be commenced under this section more than 10 years after the later of (i) the date of the last act in violation of § 18.2-51.7 or (ii) the date on which such person attained 18 years of age.

    (2017, c. 667.)

§ 8.01-43. Action against parent for damage to public property by minor.

The Commonwealth, acting through the officers having charge of the public property involved, or the governing body of a county, city, town, or other political subdivision, or a school board may institute an action and recover from the parents or either of them of any minor living with such parents or either of them for damages suffered by reason of the willful or malicious destruction of, or damage to, public property by such minor. No more than $2,500 may be recovered from such parents or either of them as a result of any incident or occurrence on which such action is based.

(Code 1950, § 8-654.1; 1960, c. 132; 1972, c. 825; 1977, c. 617; 1983, c. 330; 1987, c. 193; 1994, cc. 508, 552; 1996, c. 698.)

Michie's Jurisprudence. - For related discussion, see 1A M.J. Agency, § 111; 14A M.J. Parent and Child, § 21.

§ 8.01-44. Action against parent for damage to private property by minor.

The owner of any property may institute an action and recover from the parents, or either of them, of any minor living with such parents, or either of them, for damages suffered by reason of the willful or malicious destruction of, or damage to, such property by such minor. No more than $2,500 may be recovered from such parents, or either of them, as a result of any incident or occurrence on which such action is based. Any recovery from the parent or parents of such minor shall not preclude full recovery from such minor except to the amount of the recovery from such parent or parents. The provisions of this statute shall be in addition to, and not in lieu of, any other law imposing upon a parent liability for the acts of his minor child.

(Code 1950, § 8-654.1:1; 1966, c. 532; 1972, c. 825; 1977, c. 617; 1984, c. 48; 1987, c. 193; 1994, cc. 508, 552; 1996, c. 698.)

Michie's Jurisprudence. - For related discussion, see 1A M.J. Agency, § 111; 14A M.J. Parent and Child, § 21.

CASE NOTES

This is a vicarious liability statute imposes liability without a determination of the parents' independent negligence. The "additional" law mentioned in the last sentence refers to existing law based on vicarious liability, such as the liability of a parent based upon a principal-agent relationship. Bell v. Hudgins, 232 Va. 491 , 352 S.E.2d 332 (1987).

In the absence of a principal-agent relationship, parents may not be liable for the malicious, intentional acts of their minor child based on the independent negligence of the parents in failing to control the child. Bell v. Hudgins, 232 Va. 491 , 352 S.E.2d 332 (1987).

CIRCUIT COURT OPINIONS

Underage defendant. - In an action brought under § 8.01-44 , defendant son did not need be a minor as of the date plaintiff filed this action against defendant son and his mother. Rather, defendant son needed to be and was a minor when he damaged plaintiff's property. Hawes v. Cummings, 89 Va. Cir. 289, 2014 Va. Cir. LEXIS 130 (Chesapeake Nov. 10, 2014).

§ 8.01-44.1. Immunity from civil liability of members of certain committees, etc.

Every member of any committee, board, group, commission, or other entity established pursuant to federal or state law or regulation which functions to authorize, review, evaluate, or make recommendations on the nature, conduct, activities, or procedures involved in or related to programs or research protocols conducted under the supervision of members of the faculty or staff of any hospital or institution of higher education, including but not limited to the design or conduct of experiments involving human subjects, shall be immune from civil liability for any act, decision, omission, or utterance done or made in performance of such duties as a member of such committee, board, group, commission, or other entity, unless such act, decision, omission, or utterance is done or made in bad faith or with malicious intent or unless the member, when acting to authorize the nature, conduct, activities, or procedures involved in or related to a program or research protocol, knows or reasonably should know that the program or research protocol is being or will be conducted in violation of Chapter 5.1 (§ 32.1-162.16 et seq.) of Title 32.1. However, the immunity created herein shall not apply to those persons engaged in the actual conduct of the programs or research protocols.

(1980, c. 479; 1981, c. 40; 1992, c. 603.)

Editor's note. - At the direction of the Virginia Code Commission, "or institution of higher education" was substituted for "college, or university" in text of this section to conform to Acts 2016, c. 588.

§ 8.01-44.2. Action against physician for vaccine-related injury or death.

In any case where a person could file or could have filed a petition for compensation pursuant to Subtitle 2 of Title XXI of the Public Health Services Act of the United States (42 U.S.C. § 300aa-10 et seq.) for the vaccine-related injury or death associated with the administration of a vaccine in the Commonwealth by or under the supervision of a physician licensed to practice medicine in Virginia, no civil action shall lie against such physician, or any person administering such vaccine on behalf of such physician for injury or death resulting from an adverse reaction to such vaccine, except where such injury or death was caused by gross negligence of the physician, his agents or employees, in the administration of such vaccine.

(1987, c. 664.)

Law review. - For note, "A One Shot Deal: The National Childhood Vaccine Injury Act," see 41 Wm. & Mary L. Rev. 309 (1999).

§ 8.01-44.3. Divulgence of communications by qualified interpreters and communications assistants.

If the content of any communication which is facilitated for compensation in the professional capacity of a qualified interpreter, as defined in § 51.5-113, or in the professional capacity of any communications assistant employed by the statewide dual party relay service established under Article 5 (§ 56-484.4 et seq.) of Chapter 15 of Title 56, is divulged by such interpreter or assistant, any such party to the communication aggrieved by such divulgence may recover from such interpreter or assistant the greater of (i) actual damages sustained, together with costs and reasonable attorneys' fees, or (ii) $100. No such recovery shall be permitted if the interpreter or assistant and the parties to the communication have agreed that the interpreter or assistant may divulge the content of the communication.

(1992, c. 614.)

§ 8.01-44.4. Action for shoplifting and employee theft.

  1. A merchant may recover a civil judgment against any adult or emancipated minor who shoplifts from that merchant for two times the unpaid retail value of the merchandise, but in no event an amount less than $50. However, if the merchant recovers the merchandise in merchantable condition, he shall be entitled to liquidated damages of no more than $350.
  2. A merchant may recover a civil judgment against any person who commits employee theft for two times the unpaid retail value of the merchandise, but in no event an amount less than $50. However, if the merchant recovers the merchandise in merchantable condition, he shall be entitled to liquidated damages of no more than $350.
  3. The prevailing party in any action brought pursuant to this section shall be entitled to reasonable attorneys' fees and costs not to exceed $150.
  4. A conviction of or a plea of guilty to a violation of any other statute is not a prerequisite to commencement of a civil action pursuant to this section or enforcement of a judgment. No action may be initiated under this section during the pendency of a criminal prosecution based on the same allegations of fact; however the initiation of any criminal action against the perpetrator for the alleged offense under § 18.2-95, 18.2-96, 18.2-102.1, or 18.2-103 or any other criminal offense defined under subsection F does not preclude a merchant from initiating or maintaining an action under this section once the prosecution has been concluded. A merchant may not recover more than the retail value of the merchandise, or more than the unpaid retail value of the merchandise if the merchandise is not recovered in a merchantable condition, for the same loss if both criminal and civil actions are initiated. However, nothing herein shall preclude a merchant from recovering damages in excess of the retail value of the merchandise, or the unpaid retail value of the merchandise if the merchandise is not recovered in a merchantable condition, if a criminal action is initiated. Nothing herein shall preclude a merchant from nonsuiting the civil action brought pursuant to this section and proceeding criminally under § 18.2-95, 18.2-96, 18.2-102.1, or 18.2-103 or any other criminal offense defined under subsection F.
  5. Prior to the commencement of any action under this section, a merchant may demand, in writing, that an individual who may be civilly liable under this section make appropriate payment to the merchant in consideration for the merchant's agreement not to commence any legal action under this section.
  6. For purposes of this section:

    "Employee theft" means the removal of any merchandise or cash from the premises of the merchant's establishment or the concealment of any merchandise or cash by a person employed by a merchant without the consent of the merchant and with the purpose or intent of appropriating the merchandise or cash to the employee's own or another's use without full payment.

    "Shoplift" means any one or more of the following acts committed by a person without the consent of the merchant and with the purpose or intent of appropriating merchandise to that person's own or another's use without payment, obtaining merchandise at less than its stated sales price, or otherwise depriving a merchant of all or any part of the value or use of merchandise: (i) removing any merchandise from the premises of the merchant's establishment; (ii) concealing any merchandise; (iii) substituting, altering, removing, or disfiguring any label or price tag; (iv) transferring any merchandise from a container in which that merchandise is displayed or packaged to any other container; (v) disarming any alarm tag attached to any merchandise; or (vi) obtaining or attempting to obtain possession of any merchandise by charging that merchandise to another person without the authority of that person or by charging that merchandise to a fictitious person.

    (1992, c. 721; 2005, cc. 142, 234; 2012, c. 526.)

The number of this section was assigned by the Virginia Code Commission, the number in the 1992 act having been 8.01-44.3 .

The 2005 amendments. - The 2005 amendments by cc. 142 and 234 are identical, and in subsections A and B, substituted "unpaid retail value" for "actual cost" and deleted "to the merchant" following "merchandise"; inserted "or another's" in both paragraphs of subsection F, and made minor stylistic changes.

The 2012 amendments. - The 2012 amendment by c. 526 rewrote subsection D.

Michie's Jurisprudence. - For related discussion, see 12A M.J. Larceny, § 2.

Applied in Stamathis v. Flying J, Inc.,, 2002 U.S. Dist. LEXIS 12398 (W.D. Va. July 9, 2002).

§ 8.01-44.5. Punitive damages for persons injured by intoxicated drivers.

In any action for personal injury or death arising from the operation of a motor vehicle, engine or train, the finder of fact may, in its discretion, award punitive damages to the plaintiff if the evidence proves that the defendant acted with malice toward the plaintiff or the defendant's conduct was so willful or wanton as to show a conscious disregard for the rights of others.

A defendant's conduct shall be deemed sufficiently willful or wanton as to show a conscious disregard for the rights of others when the evidence proves that (i) when the incident causing the injury or death occurred, the defendant had a blood alcohol concentration of 0.15 percent or more by weight by volume or 0.15 grams or more per 210 liters of breath; (ii) at the time the defendant began drinking alcohol, or during the time he was drinking alcohol, he knew or should have known that his ability to operate a motor vehicle, engine or train would be impaired, or when he was operating a motor vehicle he knew or should have known that his ability to operate a motor vehicle was impaired; and (iii) the defendant's intoxication was a proximate cause of the injury to or death of the plaintiff. For the purposes of clause (i), it shall be rebuttably presumed that the blood alcohol concentration at the time of the incident causing injury or death was at least as high as the test result as shown in a certificate issued pursuant to § 18.2-268.9, in a certificate of analysis for a blood test administered pursuant to § 18.2-268.7, provided that the test was administered in accordance with the provisions of §§ 18.2-268.1 through 18.2-268.12, or in a certificate of analysis for a test performed by the Department of Forensic Science on whole blood drawn pursuant to a search warrant, provided that the test was administered in accordance with the provisions of §§ 18.2-268.5, 18.2-268.6, and 18.2-268.7. In addition to any other forms of proof, a party may submit a copy of a certificate issued pursuant to § 18.2-268.9, a certificate of analysis for a blood test administered pursuant to § 18.2-268.7, or a certificate of analysis for a test performed by the Department of Forensic Science on whole blood drawn pursuant to a search warrant, which shall be prima facie evidence of the facts contained therein and compliance with the applicable provisions of §§ 18.2-268.1 through 18.2-268.12. For the purposes of clause (ii), it shall be rebuttably presumed that the defendant who has consumed alcohol knew or should have known that his ability to operate a motor vehicle, engine, or train was or would be impaired by such consumption of alcohol.

However, when a defendant has unreasonably refused to submit to a test of his blood alcohol content as required by § 18.2-268.2, a defendant's conduct shall be deemed sufficiently willful or wanton as to show a conscious disregard for the rights of others when the evidence proves that (a) when the incident causing the injury or death occurred the defendant was intoxicated, which may be established by evidence concerning the conduct or condition of the defendant; (b) at the time the defendant began drinking alcohol, during the time he was drinking alcohol, or when he was operating a motor vehicle, he knew or should have known that his ability to operate a motor vehicle was impaired; and (c) the defendant's intoxication was a proximate cause of the injury to the plaintiff or death of the plaintiff's decedent. In addition to any other forms of proof, a party may submit a certified copy of a court's determination of unreasonable refusal pursuant to § 18.2-268.3, which shall be prima facie evidence that the defendant unreasonably refused to submit to the test. For the purposes of clause (b), it shall be rebuttably presumed that the defendant who has consumed alcohol knew or should have known that his ability to operate a motor vehicle, engine, or train was or would be impaired by such consumption of alcohol.

Evidence of similar conduct by the same defendant subsequent to the date of the personal injury or death arising from the operation of a motor vehicle, engine, or train shall be admissible at trial for consideration by the jury or other finder of fact for the limited purpose of determining what amount of punitive damages may be appropriate to deter the defendant and others from similar future action.

(1994, c. 570; 1998, c. 722; 1999, c. 324; 2002, c. 879; 2013, c. 636; 2015, c. 710; 2016, cc. 510, 624; 2017, cc. 623, 671.)

The 1999 amendment inserted "or 0.15 grams or more per 210 liters of breath" in clause (i) of the second paragraph.

The 2002 amendments. - The 2002 amendment by c. 879, in the second paragraph, rewrote clause (ii), which formerly read: "at the time the defendant began, or during the time he was, drinking alcohol, he knew that he was going to operate a motor vehicle, engine or train; and"; and in the first sentence in the third paragraph, rewrote clause (ii), which formerly read: "at the time the defendant began, or during the time he was, drinking alcohol, he knew that he was going to operate a motor vehicle; and."

The 2013 amendments. - The 2013 amendment by c. 636 added the last two sentences in the second paragraph; and in the last paragraph, substituted the (a) through (c) designations for (i) through (iii) designations in the first sentence, and inserted "In addition to any other forms of proof, a party may submit" and "which" in the last sentence.

The 2015 amendments. - The 2015 amendment by c. 710 substituted "punitive damages" for "exemplary damages" in the first sentence of the section.

The 2016 amendments. - The 2016 amendments by c. 510 substituted "in accordance with the provisions of §§ 18.2-268.1 through 18.2-268.12" for "within three hours of the incident causing injury or death" and inserted "and compliance with the provisions of §§ 18.2-268.1 through 18.2-268.12" in the second paragraph.

The 2016 amendment by c. 624 added the last paragraph in the section.

The 2017 amendments. - The 2017 amendments by cc. 623 and 671, effective March 16, 2017, in the second paragraph, inserted "or in a certificate of analysis for a test performed by the Department of Forensic Science on whole blood drawn pursuant to a search warrant, provided that the test was administered in accordance with the provisions of §§ 18.2-268.5, 18.2-268.6, and 18.2-268.7" in the second sentence, inserted "or a certificate of analysis for a test performed by the Department of Forensic Science on whole blood drawn pursuant to a search warrant" in the third sentence, and added the last sentence; in the third paragraph, inserted "or when he was operating a motor vehicle," in clause (b), and added the last sentence; and made stylistic changes.

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, §§ 112, 114, 118.

CASE NOTES

Plaintiff must prove each of elements. - This statute requires that the plaintiff prove each of the statutory elements and, if the plaintiff fails to produce any evidence that at the time the defendant began drinking alcohol, or during the time he or she was drinking alcohol, the defendant knew he or she was going to operate a motor vehicle, a claim for statutory punitive damages may be correctly struck. Webb v. Rivers, 256 Va. 460 , 507 S.E.2d 360 (1998) (decided prior to 2002 amendments, which rewrote clause (ii)).

No evidentiary presumption established. - Section 8.01-44.5 did not establish an evidentiary presumption regarding the results of a chemical analysis conducted on a sample of a driver's blood or breath taken after the driver's arrest under § 18.2-266 for driving under the influence of alcohol, and the trial court erred by not allowing a party who was injured by a drunk driver to show that although the drunk driver's blood alcohol concentration was below 0.15 percent three hours after the accident, it would have been above 0.15 percent at the time of the accident, and by dismissing the injured party's claim under § 8.01-44.5 for punitive damages. Woods v. Mendez, 265 Va. 68 , 574 S.E.2d 263, 2003 Va. LEXIS 18 (2003).

Intoxication alone was insufficient to establish willful and wanton misconduct. - Although mere intoxication would be insufficient to establish willful and wanton conduct, whether defendant acted willfully or wantonly, in conscious disregard for the safety of others, involved consideration of the entire conduct of the defendant; in the instant case, the jury could have properly concluded that defendant owner's negligent entrustment was more than simple negligence, as the owner, a passenger in the owner's own vehicle, told the intoxicated driver to speed up, while navigating roads that the owner knew were difficult to navigate. Allstate Ins. Co. v. Wade, 265 Va. 383 , 579 S.E.2d 180, 2003 Va. LEXIS 53 (2003).

Proof of "unreasonable refusal." - A plaintiff's failure to incorporate in the factual allegations of his complaint the final sentence of this section relating to the effect of providing a certified copy of a court's determination that the defendant unreasonably refused to submit to a breath test is not fatal to a claim for punitive damages in that compliance with this final sentence merely is but one way to prove an "unreasonable refusal," not the only way. Ritinski v. McGarity, 112 F. Supp. 2d 509, 2000 U.S. Dist. LEXIS 13090 (E.D. Va. 2000).

Jury instructions. - Trial court erred in giving a standard jury instruction regarding the imposition of punitive damages because, while the instruction contained all of the statutory elements, it did not properly state the law and improperly incorporated the appellate standard of review where it required the insureds prove that a driver's conduct was "egregious," an additional element not included in the statute. Cain v. Lee, 290 Va. 129 , 772 S.E.2d 894, 2015 Va. LEXIS 77 (2015).

CIRCUIT COURT OPINIONS

Constitutionality. - Aside from the limitations imposed by the Eighth and Fourteenth Amendments prohibiting excessive fines, cruel and unusual punishments, and grossly excessive punishments of tortfeasors, there is nothing barring jury awards of punitive damages; hence, the General Assembly was free to enact § 8.01-44.5 . Edwards v. Whitlock, 57 Va. Cir. 337, 2002 Va. Cir. LEXIS 213 (Chesterfield County 2002).

Proof of elements. - Because the certificate of analysis, admitted as genuine under a request for admissions, conclusively established blood alcohol content of defendant at 0.14 grams per 210 liters of breath, no evidence would be taken to contradict this level. Since count one established a statutory claim for punitive damages and would be insufficient to plead a common law claim, on defendant's motion the statutory claim for punitive damages would be dismissed. Hoggard v. Reitano, 54 Va. Cir. 513, 2001 Va. Cir. LEXIS 212 (Portsmouth 2001).

Injured party's claim for statutory punitive damages against a motorist under § 8.01-44.5 was sufficient because the injured party alleged (1) at the time of the accident the motorist's blood alcohol content was 0.15 or more, (2) at the time the motorist consumed alcohol he knew or should have known that his ability to drive would be impaired, and (3) the motorist's intoxication was a proximate cause of the accident. Fernandez v. Cadow, 61 Va. Cir. 436, 2003 Va. Cir. LEXIS 46 (Spotsylvania County 2003).

Punitive damages claim based on common law where it did not allege blood alcohol level of 0.15 or more. - In a claim seeking damages for personal injuries from an auto accident, where the motion for judgment alleged that, in addition to the ordinary allegations of negligence, defendant's behavior constituted willful and wanton conduct and conscious disregard for the rights and safety of others due to the fact defendant knew that driving after drinking alcoholic beverages was unsafe, knew from prior experience that alcohol would impair his ability to drive an automobile, and that he made the conscious and unconscionable decision to drive despite being unfit to do so, while the language largely tracked the elements of § 8.01-44.5 , it did not allege a blood alcohol level of 0.15 or more, so the punitive damages claim was based on common law. Carrolla v. Rogers, 61 Va. Cir. 447, 2003 Va. Cir. LEXIS 49 (Roanoke 2003).

§ 8.01-44.6. Action for injury to cemetery property.

The owner or operator of a cemetery company may bring an action to recover damages sustained, together with costs and reasonable attorneys' fees, against any person who willfully or maliciously destroys, mutilates, defaces, injures, or removes any tomb, monument, gravestone, or other structure placed within any cemetery, graveyard, or place of burial, or within any lot belonging to any memorial or monumental association, or any fence, railing, or other work for the protection or ornament of any tomb, monument, gravestone, or other structure aforesaid, or of any cemetery lot within any cemetery. The cemetery owner or operator may recover, as part of damages sustained, the cost of repair or replacement of damaged property, including any labor costs, regardless of whether the property damaged is owned by the cemetery or by another person.

(2004, c. 203.)

§ 8.01-44.7. Action for tampering with metering device and diverting service.

Any provider of services that have been tampered with or diverted in violation of § 18.2-163 may seek both injunctive and equitable relief, and an award of damages, including reasonable attorney fees and costs. In addition to any other remedy provided by law, the party aggrieved may recover an award of actual damages or $500 whichever is greater for each action.

(2006, c. 350.)

Law review. - For 2007 annual survey article, "Civil Practice and Procedure," see 42 U. Rich. L. Rev. 229 (2007).

Article 4. Defamation.

§ 8.01-45. Action for insulting words.

All words shall be actionable which from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace.

(Code 1950, § 8-630; 1977, c. 617.)

Cross references. - For criminal provision regarding abusive language, see § 18.2-416. For criminal provision as to slander and libel, see § 18.2-417.

For rules of court governing practice and procedure in civil actions, see Rules 3:1 through 3:25.

Law review. - For note, "Qualified Privilege as a Defense to Defamation," see 45 Va. L. Rev. 772 (1959). For note on the merger of libel and slander, see 47 Va. L. Rev. 1116 (1961). For survey of Virginia law on torts for the year 1973-1974, see 60 Va. L. Rev. 1615 (1974). For article on model abusive debt collection statute for Virginia, see 15 Wm. & Mary L. Rev. 567 (1974). For note on the corporate libel plaintiff, see 38 Wash. & Lee L. Rev. 716 (1981).

For article on libel and slander in Virginia, see 17 U. Rich. L. Rev. 769 (1983). For article, "Reputation, Compensation, and Proof," see 25 Wm. & Mary L. Rev. 747 (1984). For article, "Defamation and the First Amendment: The End of the Affair," see 25 Wm. & Mary L. Rev. 779 (1984). For article, "First Amendment Limitations on Recovery From the Press - An Extended Comment on 'The Anderson Solution'," see 25 Wm. & Mary L. Rev. 793 (1984). For article, "The Plaintiff's Burden in Defamation: Awareness and Falsity," see 25 Wm. & Mary L. Rev. 825 (1984). For article, "Hard Defamation Cases," see 25 Wm. & Mary L. Rev. 891 (1984). For article on defamation of public figures, see 25 Wm. & Mary L. Rev. 905 (1984). For article, "Of Public Figures and Public Interest - The Libel Law Conundrum," see 25 Wm. & Mary L. Rev. 937 (1984). For article, "Public Figures Revisited," see 25 Wm. & Mary L. Rev. 957 (1984). For article on modern defamation law in Virginia, see 21 U. Rich. L. Rev. 3 (1986).

For an article, "Civil Practice and Procedure," see 32 U. Rich. L. Rev. 1009 (1998).

Michie's Jurisprudence. - For related discussion, see 5C M.J. Damages, § 72; 12A M.J. Libel and Slander, §§ 2-4, 9, 10, 12, 18, 25, 29, 32, 38, 39, 41, 46, 47.

CASE NOTES

I. DECISIONS UNDER CURRENT LAW.
A. GENERAL CONSIDERATION.

Constitutional limitations on "insulting words" claim. - Although application of this provision is no longer confined to its original purpose of preventing duels, it has been interpreted by Virginia courts to be virtually co-extensive with the common-law action for defamation. For this reason any constitutional limitations that apply to the plaintiffs' defamation action must necessarily apply to their "insulting words" claim as well. Potomac Valve & Fitting, Inc. v. Crawford Fitting Co., 829 F.2d 1280 (4th Cir. 1987).

Opinions protected by First Amendment. - Where the defendants' statement is capable of being proved or disproved, but when viewed in context it is clearly an opinion, it is therefore protected by the First Amendment. Potomac Valve & Fitting, Inc. v. Crawford Fitting Co., 829 F.2d 1280 (4th Cir. 1987).

Action for insulting words assimilated to common-law action for libel and slander. - Where the plaintiff's motion for judgment was unclear as to whether the proceeding was under this section or involved common-law libel, no distinction was required to be made, since the trial of an action for insulting words is completely assimilated to the common-law action for libel or slander, and from the standpoint of the law of this state is an action for libel or slander. Mills v. Kingsport Times-News, 475 F. Supp. 1005 (W.D. Va. 1979).

The trial of an action for insulting words is completely assimilated to the common-law action for libel and slander, and from the standpoint of the Virginia law it is an action for libel and slander. Welch v. Kennedy Piggly Wiggly Stores, Inc., 63 Bankr. 888 (W.D. Va. 1986).

In many cases defamation claims and claims brought under this section "must ineluctably 'rise or fall together.' " Dwyer v. Smith, 867 F.2d 184 (4th Cir. 1989).

Must be danger of violent reaction. - This section only penalizes words used in a verbal attack directed at a particular individual in a face to face confrontation that presents a clear and present danger of a violent physical reaction. Thompson v. Town of Front Royal, Civ. Action No. 5:98CV00083, 2000 U.S. Dist. LEXIS 3876 (W.D. Va. Mar. 16, 2000).

This section plainly requires that the words used must not only be insults, but they must also "tend to violence and breach of the peace." Allen & Rocks, Inc. v. Dowell, 252 Va. 439 , 477 S.E.2d 741 (1996).

In Virginia, a libel plaintiff must show that the alleged libel was published "of or concerning" him. He need not show that he was mentioned by name in the publication. Instead, the plaintiff satisfies the "of or concerning" test if he shows that the publication was intended to refer to him and would be so understood by persons reading it who knew him. In other words, the test is met if the plaintiff shows that the publication was "in its description or identification such as to lead those who knew or knew of the plaintiff to believe that the article was intended to refer to [him]." But if the publication on its face does not show that it applies to the plaintiff, the publication is not actionable, unless the allegations and supporting contemporaneous facts connect the libelous words to the plaintiff. If the rule were otherwise, any plaintiff could adopt and apply to himself any libelous matter and obtain a recovery. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom., Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

In order to establish prima facie evidence of publication, a plaintiff is not required to present testimony from a third party regarding what that person heard and understood, or to identify the person to whom the defamatory words were published. Instead, a plaintiff may prove publication of defamatory remarks by either direct or circumstantial evidence that the remarks were heard by a third party who understood these remarks as referring to the plaintiff in a defamatory sense. Food Lion, Inc. v. Melton, 250 Va. 144 , 458 S.E.2d 580 (1995).

As a matter of state law the negligence standard should be applicable to media and nonmedia defendants alike. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

The application of this negligence standard is expressly limited, however, to circumstances where the defamatory statement makes substantial danger to reputation apparent. The trial judge shall make such determination as a matter of law. If, on the other hand, no substantial danger to reputation is apparent from the statement in issue, New York Times malice must be established to recover compensatory damages. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

Plaintiff must prove falsity. - In an action brought by a private individual to recover actual, compensatory damages for a defamatory publication, the plaintiff may recover upon proof by a preponderance of the evidence that the publication was false, and that the defendant either knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based. Under this standard, truth no longer is an affirmative defense to be established by the defendant. Instead, the plaintiff must prove falsity, because he is required to establish negligence with respect to such falsity. Such liability may be based upon negligence, whether or not the publication in question relates to a matter of public or general concern. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

The threshold determination to be made by trial judge on the question of whether there is substantial danger to reputation apparent from the content of a publication resembles the determination traditionally made by the court on the question whether a statement is libelous per se. A trial judge must decide, viewing the circumstances objectively, whether a reasonable and prudent editor should have anticipated that the words used contained an imputation necessarily harmful to reputation. The harmful potential of the words used here, i.e., that plaintiffs were accused of crimes, should have been apparent to the paper's editor, if he had exercised ordinary care. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

When a qualified privilege is established and not defeated by a plaintiff's evidence of common-law malice, the negligence standard is subsumed in the higher standard and it is of no consequence that the plaintiff might have met the lower standard of negligence. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

Failure of newspaper reporter to verify accusations made against plaintiff. - In a defamation action brought by a school teacher against newspaper reporter and his employer, where a number of supervisors, a fellow teacher, and students, including some classmates of the complaining students, testified as to plaintiff's good qualities as a teacher and contradicted virtually all the negative statements made by the persons the reporter interviewed, the students who contradicted the negative testimony were all shown to have been readily available for interview in the Richmond area, while the school authorities would not furnish the reporter with the names or addresses of other students in plaintiff's classes, the jury could have inferred from the evidence that the reporter could have obtained this information from the students he interviewed but negligently failed to do so, and, in fact, one student gave the reporter the names of some of the other students, but the reporter apparently did nothing with the information, the jury had ample evidence from which to conclude that a reasonably prudent news reporter writing the article could readily have contacted a number of other students to verify (or contradict) these accusations and should have done so. Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277 , 362 S.E.2d 32 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228 (1988).

Private plaintiff's burden of proof in libel action against nonmedia defendant. - In a case involving a private plaintiff in a libel action against a nonmedia defendant, it is not necessary to show actual out-of-pocket damage in a nonlibel per se action and a showing of loss of reputation and standing in the community, embarrassment, humiliation, and mental suffering will be sufficient for the award of damages. Sateren v. Montgomery Ward & Co., 234 Va. 303 , 362 S.E.2d 324 (1987).

Adoption of a "journalistic malpractice test" would be inappropriate for a number of reasons: (a) While responsible newspapers serve many worthwhile objectives, profit is an important consideration. Startling, sensational stories tend to sell more newspapers than dull, factual stories. Thus, there is an inherent conflict of interest when a journalist is required to draw inferences from news items. It seems imprudent to permit media experts to set a standard under these circumstances. (b) The evidence does not establish that journalists are required to have special education for their profession, as engineers, doctors, lawyers, or certified public accountants must, nor have they acquired knowledge, training, and experience unique to certain trades focusing upon scientific matters, such as electricity, blasting and the like, which a jury could not understand without expert assistance. (c) The adoption of such a standard might mean that there could be no recovery unless a media expert testified that the conduct did not meet the standard of care in the journalistic community. Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277 , 362 S.E.2d 32 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228 (1988).

Profane language used during labor dispute held not to support liability under this section. See Crawford v. United Steel Workers, 230 Va. 217 , 335 S.E.2d 828 (1985), cert. denied, 475 U.S. 1095, 106 S. Ct. 1490, 89 L. Ed. 2d 892 (1986).

Erroneous report of commitment for psychiatric evaluation. - An erroneous newspaper report that the plaintiff had been committed to a state hospital for psychiatric evaluation as the result of a preliminary hearing on a homicide charge was not libelous per se; however, a libel per quod action did lie in that the plaintiff's allegations of humiliation, embarrassment, and permanent stigma, occasioned by inquiries about her commitment, would give rise to special damages if proven. Mills v. Kingsport Times-News, 475 F. Supp. 1005 (W.D. Va. 1979).

B. DAMAGES.

Precision hard to obtain in damages calculation. - It is difficult, if not impossible, to prove with mathematical precision the quantum of damages for injury to reputation, humiliation, and embarrassment which may flow from a defamation. Schnupp v. Smith, 249 Va. 353 , 457 S.E.2d 42 (1995).

On the issue of compensatory damages in libel cases when New York Times malice need not be proven, Virginia will continue to follow the established standard of review mandated by § 8.01-680 , that is, "the judgment of the trial court shall not be set aside unless it appears from the evidence that such judgment is plainly wrong or without evidence to support it." Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

Punitive damages. - An appellate court in Virginia, on the issue of punitive damages or where "New York Times malice" must be proven, must independently decide whether the evidence in the record on appeal is sufficient to support a finding of New York Times "actual malice" by clear and convincing proof. This does not mean that the reviewing court may disregard the determinations made on credibility of witnesses by the trier of fact or that the presumption of correctness that attaches to factual findings is to be discounted. The rule simply means that appellate judges in such a case must examine the facts pertinent to the punitive damage award and exercise independent judgment to "determine whether the record establishes actual malice with convincing clarity." Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

Public school teacher not a public official. - Public school teacher was not in that class of public officials which can only recover compensatory damages for defamation by establishing the constitutional malice described in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964); Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277 , 362 S.E.2d 32 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228 (1988).

Appellate review of proof of malice. - To sustain an award of punitive damages, plaintiff, as a private person, is required to establish New York Times malice by clear and convincing proof. To decide if that requirement has been met, the Supreme Court conducts an "independent examination of the whole record," resolving disputed factual issues and inferences favorably to the plaintiff. Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277 , 362 S.E.2d 32 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228 (1988).

C. ILLUSTRATIONS OF ACTIONABLE WORDS.

Defamatory words need not be sufficient within themselves to establish all the elements of the offense imputed. Such simplicity is not required. Schnupp v. Smith, 249 Va. 353 , 457 S.E.2d 42 (1995).

In determining whether or not language does impute a criminal offense the words must be construed in the plain and popular sense in which the rest of the world would naturally understand them. It is not necessary that they should make the charge in express terms. It is sufficient if they consist of a statement of matters which would naturally and presumably be understood by those who heard them as charging a crime. Schnupp v. Smith, 249 Va. 353 , 457 S.E.2d 42 (1995).

It is general rule that allegedly defamatory words are to be taken in their plain and natural meaning and to be understood by courts and juries as other people would understand them, and according to the sense in which they appear to have been used. In order to render words defamatory and actionable it is not necessary that the defamatory charge be in direct terms but it may be made indirectly, and it matters not how artful or disguised the modes in which the meaning is concealed if it is in fact defamatory. Accordingly, a defamatory charge may be made by inference, implication or insinuation. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

Statements on website actionable. - Motion to dismiss was denied because the plaintiff, a former Air Force Academy cadet, alleged that the defendants' website statements were false, and where the statements did not represent a fair and accurate description of the cadet's court martial proceeding, the defendants were not shielded from liability by reliance on a public record; the website statements constituted "actionable statements" for purposes of the cadet's claims for defamation and for violation of the insulting words statute, claims that were virtually coextensive under Virginia law. Wiest v. E-Fense, Inc., 356 F. Supp. 2d 604, 2005 U.S. Dist. LEXIS 3474 (E.D. Va. 2005).

Words that impute the commission of a crime that is punishable by imprisonment in a state or federal institution are actionable per se. Schnupp v. Smith, 249 Va. 353 , 457 S.E.2d 42 (1995).

Content of a news item which states that an unmarried woman is pregnant creates a substantial danger to reputation and should warn a reasonably prudent editor of the item's defamatory potential. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

Words "nigger" and "niggers" not fighting words. - The words "nigger" and "niggers," allegedly spoken by the African-American plaintiff's supervisor, without more specific allegations of how, when and to whom they were spoken, were not enough to rise to the level of fighting words under this section. The plaintiff did not allege facts in his complaint to prove that any supposed fighting words referred to him and the allegations in the complaint could not be construed as having been directed at a particular individual in a face to face confrontation and as presenting a clear and present danger of a violent physical reaction. Thompson v. Town of Front Royal, Civ. Action No. 5:98CV00083, 2000 U.S. Dist. LEXIS 3876 (W.D. Va. Mar. 16, 2000).

Comments on work performance. - The defendants correctly contended that the language used by board chairman explaining former employee's work performance was not such as to provoke violence or breach of the peace, as required by this section, and accordingly, that the trial court should not have submitted the insulting words issue to the jury. Allen & Rocks, Inc. v. Dowell, 252 Va. 439 , 477 S.E.2d 741 (1996).

D. EVIDENCE.

Expert testimony as to standards for investigative reporting properly excluded. - The trial court did not err in excluding evidence from an expert witness, a nationally known journalist, proffered on the standards for investigative reporting. A jury in this state is as competent as any expert to form an intelligent and accurate opinion as to whether a reporter should have conducted additional investigations. Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277 , 362 S.E.2d 32 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228 (1988).

Absolute privilege. - Statements an attorney made in an email he sent to an attorney who represented a Virginia corporation that made an offer to purchase assets that belonged to a corporate debtor were absolutely privileged because they were made in the context of three judicial proceedings that were ongoing: the debtor's Chapter 11 bankruptcy case; sale proceedings under 11 U.S.C.S. § 363; and the Virginia corporation's motion to set aside the court's order approving the sale to another buyer; because the statements were privileged, the attorney and his law firm were entitled to an order dismissing the Virginia corporation's claims alleging that the attorney and his law firm committed defamation and violated § 8.01-45 . Chesapeake Trust v. Chesapeake Bay Enter. (In re Potomac Supply Corp.),, 2013 Bankr. LEXIS 5435 (Bankr. E.D. Va. Dec. 30, 2013).

E. PLEADING AND PRACTICE.

Jurisdiction. - Defamation claim and an insulting words claim were remanded to state court because the mere mention of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.S. §§ 1601 and 1692-1692o, in a complaint which sought damages exclusively under state defamation and insulting words law was insufficient to vest the court with federal question jurisdiction under 28 U.S.C.S. § 1331, since a violation of the FDCPA was not a necessary element of, and might not have been relevant to, a Virginia defamation or insulting words claim. Martin v. Lagualt, 315 F. Supp. 2d 811, 2004 U.S. Dist. LEXIS 7428 (E.D. Va. 2004).

Exact words must be alleged. - The exact words charged to have been used by the defendant must be alleged in order to state a cause of action for insulting words under this section. Thompson v. Town of Front Royal, Civ. Action No. 5:98CV00083, 2000 U.S. Dist. LEXIS 3876 (W.D. Va. Mar. 16, 2000).

No duty to segregate defamatory and non-defamatory material in jury instructions. - There is no duty upon a trial court to segregate potentially defamatory from non-defamatory material in granting instructions to the jury. Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277 , 362 S.E.2d 32 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228 (1988).

It was jury's function to determine which statements in newspaper article were defamatory statements of fact about the plaintiff, taking into consideration the entire background of the case and the context in which those statements were made. Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277 , 362 S.E.2d 32 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228 (1988).

Objective basis for belief. - Where a city resident had an objective basis for his belief that the city's mayor had allowed 200 low-income housing units to be built in the city, his political ads in opposition to the mayor's candidacy were not published with actual malice, and a jury verdict for the mayor in his defamation action was reversed. Jordan v. Kollman, 269 Va. 569 , 612 S.E.2d 203, 2005 Va. LEXIS 48 (2005).

Sufficiency of complaint. - In a case in which a former employee alleged that her former employer violated the Virginia insulting words statute, § 8.01-45 , and the former employer moved to dismiss that claim pursuant to Fed. R. Civ. P. 12(b)(6), under the Iqbal test, the complaint alleged sufficient facts to establish a prima facie case, and, contrary to the former employer's assertion, dismissal was not required on the basis that there was not a face-to-face confrontation. A reasonable fact finder could infer that the termination letter and the mass distribution of an erroneous newspaper article constituted statements that could lead to violence. Trail v. General Dynamics Armament & Tech. Prods.,, 2010 U.S. Dist. LEXIS 28225 (W.D. Va. Mar. 25, 2010).

II. DECISIONS UNDER PRIOR LAW.
A. GENERAL CONSIDERATION.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

Original purpose now of no importance. - Since the amendment of the original statute in 1849, in dealing with the statute against insulting words, no weight or importance has been attached to the purpose for which it was originally enacted. The original object of the statute, in the matter of preventing dueling, is no longer entitled to consideration in considering the statute. W.T. Grant Co. v. Owens, 149 Va. 906 , 141 S.E. 860 (1928).

The purpose now is to prevent breaches of peace. - The purpose of this section was to extend the common law so as to give a right of action for insulting words, even though containing no imputation which was actionable at common law. The design of the statute is to prevent breaches of the peace, to discourage offensive and excessive freedom in the use of that unruly member, the tongue, to inflict punishment therefor, and by subjecting those who are so hasty of temper and inconsiderate of the feelings of others as to insult them to such actual and punitive damages as may be awarded by a jury. Hines v. Gravins, 136 Va. 313 , 112 S.E. 869 (1922), cert. denied, 265 U.S. 583, 44 S. Ct. 458, 68 L. Ed. 1191 (1924). See also, Weatherford v. Birchett, 158 Va. 741 , 164 S.E. 535 (1932).

The gravamen of an action under this section is the insult to the feelings of the offended party, not the intention of the party using the words. Cook v. Patterson Drug Co., 185 Va. 516 , 39 S.E.2d 304 (1946).

In an action for insulting words the insult is the basis of the action and where such insults are given, the jury are to pass upon them regardless of whether the words spoken are true or false. Brooks v. Calloway, 39 Va. (12 Leigh) 466 (1841).

Action for libel and slander. - An action for insulting words under this section has been treated since the amendment of the original statute in 1849 entirely as an action for libel or slander, for words actionable per se, with two exceptions: "No demurrer shall preclude a jury from passing thereon," (eliminated by 1940 amendment) and no publication of the words is necessary. In all other respects an action under the statute is placed on all fours with an action for defamation at common law. In fact, from the standpoint of the Virginia law, the action for insulting words is an action for libel or slander. W.T. Grant Co. v. Owens, 149 Va. 906 , 141 S.E. 860 (1928).

All actions for libel and insulting words under this section are to be treated as slander, even though the language used is defamatory on its face, and the common-law rules of slander are to be applied. Shupe v. Rose's Stores, Inc., 213 Va. 374 , 192 S.E.2d 766 (1972).

An action under the insulting words statute is either an action for libel or slander and in an action for libel or slander the common-law rules of slander are to be applied. Shupe v. Rose's Stores, Inc., 213 Va. 374 , 192 S.E.2d 766 (1972).

As at common law. - The 1940 amendment to this section, eliminating the words "and no demurrer shall preclude a jury from passing thereon," gave the court the same power and control over actions brought under this section that it exercised over common-law actions for libel and slander. Darnell v. Davis, 190 Va. 701 , 58 S.E.2d 68 (1950).

Statute does not affect common-law remedy. - The legislature did not intend by passing the statute of insulting words to interfere with the common-law action for defamation and a party aggrieved may still proceed at common law as if the statute had never been passed. Brooks v. Calloway, 39 Va. (12 Leigh) 466 (1841); Moseley v. Moss, 47 Va. (6 Gratt.) 534 (1850); Hogan v. Wilmoth, 57 Va. (16 Gratt.) 80 (1860).

Publication is difference. - An action for insulting words under this section is treated precisely as an action for slander or libel, for words actionable per se, with one exception, namely, no publication is necessary. The trial of an action for insulting words is completely assimilated to the common-law action for libel or slander, and from the standpoint of the Virginia law it is an action for libel or slander. Carwile v. Richmond Newspapers, Inc., 196 Va. 1 , 82 S.E.2d 588 (1954); O'Neil v. Edmonds, 157 F. Supp. 649 (E.D. Va. 1958); Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614 (W.D. Va. 1967).

B. WORDS ACTIONABLE UNDER STATUTE.
1. IN GENERAL.

Words actionable at common law may be actionable under statute. - All common-law defamations are insults, and many of them something more. Actions for insulting words, spoken or written, may be brought under this section, though the words are actionable at common law. Payne v. Tancil, 98 Va. 262 , 35 S.E. 725 (1900).

This statute applies to words written as well as to words spoken. Chaffin v. Lynch, 83 Va. 106 , 1 S.E. 803 (1887).

At common law defamatory words which are actionable per se are: (1) Those which impute to a person the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished; (2) those which impute that a person is infected with some contagious disease, where if the charge is true, it would exclude the party from society; (3) those which impute to a person unfitness to perform the duties of an office or employment of profit, or want of integrity in the discharge of the duties of such an office or employment; (4) those which prejudice such person in his or her profession or trade. All other defamatory words which, though not in themselves actionable, occasion a person special damages are actionable. Shupe v. Rose's Stores, Inc., 213 Va. 374 , 192 S.E.2d 766 (1972).

Meaning of language cannot be extended beyond its ordinary and common acceptation. - While ordinarily the gravamen of the action is the insult to the feelings of the offended party, and not the intention of the party using the words, the nature of the words used must from their usual construction and common acceptation be construed as insults and tend to violence and breach of the peace. The meaning of the alleged defamatory language cannot, by innuendo, be extended beyond its ordinary and common acceptation. O'Neil v. Edmonds, 157 F. Supp. 649 (E.D. Va. 1958).

In determining whether or not the language imputes a criminal offense, the words must be construed in the plain and popular sense in which the rest of the world would naturally understand them. It is not necessary that they should make the charge in express terms. It is sufficient if they consist of a statement of matters which would naturally and presumably be understood by those who heard them as charging a crime. Zayre of Va., Inc. v. Gowdy, 207 Va. 47 , 147 S.E.2d 710 (1966).

Manner and occasion of speaking or writing words. - Insults by words spoken to or concerning another, depend so much upon the manner, the occasion, the allusions, and peculiar circumstances, as to defy all rules of technical precision and import, and must of necessity be regarded as questions of fact, to be submitted to the experience, observation and the common sense of a jury. Moseley v. Moss, 47 Va. (6 Gratt.) 534 (1850); Corr v. Lewis, 94 Va. 24 , 26 S.E. 385 (1896).

Whether the words are or are not insulting depends on the place, the manner and circumstances in which they are uttered. The literal meaning of the words may import praise; but, if spoken ironically and with intent to wound, they may amount to the keenest insult. It is equally true that the literal meaning of words may import insult, and yet the manner of their utterance, and the circumstances under which they are said, would satisfy anyone that no insult was intended. Brooks v. Calloway, 39 Va. (12 Leigh) 466 (1841); Corr v. Lewis, 94 Va. 24 , 26 S.E. 385 (1896).

In order to determine whether words are insulting, all the surrounding facts and circumstances must be taken into consideration, and the whole case must be looked at in the light of its own particular facts. Zayre of Va., Inc. v. Gowdy, 207 Va. 47 , 147 S.E.2d 710 (1966).

2. ILLUSTRATIONS.

Improper letter to married woman. - A letter written by a man to a married woman falsely asserting that the writer has received a letter from her and that he will meet her at the designated place is within the statute. Rolland v. Batchelder, 84 Va. 664 , 5 S.E. 695 (1888).

An accusation of robbery is actionable under the statute. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 (1925).

The publication of the false report of a person's death is not actionable when unaccompanied by special circumstances. O'Neil v. Edmonds, 157 F. Supp. 649 (E.D. Va. 1958).

A letter to plaintiff's employer, stating that plaintiff was in default in repayment of a loan and refused to answer correspondence or respond to personal calls, was not libelous per se, where the letter did not suggest dishonesty, insolvency or bankruptcy, and plaintiff was not a merchant or trader or engaged in a vocation where credit was necessary, and since no special damages were alleged or proved, the letter was not actionable. Weaver v. Beneficial Fin. Co., 200 Va. 572 , 106 S.E.2d 620 (1959).

Statement that police chief failed to account for fines not actionable. - To publish of the chief of police, who is chargeable with the collection from his subordinates of fines imposed by the police justice, that he has within the past twelve months collected certain fines of a certain officer, which fines do not appear by the records of the police court to have been reported, is not actionable under this section in the absence of an averment in the declaration that the words used from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace. Moss v. Harwood, 102 Va. 386 , 46 S.E. 385 (1904).

C. PUBLICATION.

Publication is not necessary. - Under this section against insulting words, publication is not necessary in order to entitle a plaintiff to recover for insulting words. Davis v. Heflin, 130 Va. 169 , 107 S.E. 673 (1921); Hines v. Gravins, 136 Va. 313 , 112 S.E. 869 (1922), cert. denied, 265 U.S. 583, 44 S. Ct. 458, 68 L. Ed. 1191 (1924).

Words only have to be conveyed to person libelled. - It is a sufficient publication under this section to send a writing containing the insulting words to the person libelled. Rolland v. Batchelder, 84 Va. 664 , 5 S.E. 695 (1888).

The mailing of a slanderous letter to a third party amounts to a publication, provided the letter reaches its destination and is read by the addressee, or any third party. Davis v. Heflin, 130 Va. 169 , 107 S.E. 673 (1921).

Place of publication and circulation is where cause of action arises. - It is not the place where the libelous article is printed, but the place where it is published and circulated, that makes the words actionable under this section. Haskell v. Bailey, 63 F. 873 (4th Cir. 1894).

Defendant, in Virginia, wrote a letter to a third party in Washington, D.C., containing defamatory statements about the plaintiff. Plaintiff questioned defendant in Virginia in regard to the letter and defendant substantially repeated and assumed responsibility for the contents of the letter when he admitted its authorship and said to defendant that the letter spoke for itself. The defendant was liable in Virginia under this statute as he reiterated the insulting words to plaintiff in Virginia. Davis v. Heflin, 130 Va. 169 , 107 S.E. 673 (1921).

D. PARTIES LIABLE.

A corporation, as any other master, is liable in damages under this section for insulting words uttered by its agent while engaged in the ordinary course of his employment, and in connection therewith. W.T. Grant Co. v. Owens, 149 Va. 906 , 141 S.E. 860 (1928); Jordan v. Melville Shoe Corp., 150 Va. 101 , 142 S.E. 387 (1928).

Director General of Railroads not liable. - Assuming, for the purposes of this case, that a principal is liable for compensatory damages under this section for insulting words uttered by his agent in the course of his employment, when such words are neither authorized nor ratified by the principal, there is a difference in this respect between the Director General of Railroads and other employers, and an action for compensatory damages in such case cannot be maintained against the Director General. Hines v. Gravins, 136 Va. 313 , 112 S.E. 869 (1922), cert. denied, 265 U.S. 583, 44 S. Ct. 458, 68 L. Ed. 1191 (1924).

Judges are not liable to civil action for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. Fletcher v. Bryan, 175 F.2d 716 (4th Cir. 1949).

E. MALICE.

Constitutional malice standard required. - The trial court committed reversible error when in a punitive damage instruction to the jury it incorporated the common-law definition of malice rather than the constitutional malice standard. Newspaper Publishing Corp. v. Burke, 216 Va. 800 , 224 S.E.2d 132 (1976).

Malicious libel enjoys no constitutional protection in any context. Old Dominion Branch 496 v. Austin, 213 Va. 377 , 192 S.E.2d 737 (1972), rev'd on other grounds, 418 U.S. 264, 94 S. Ct. 2770, 41 L. Ed. 2d 745 (1974).

Legal malice is presumed from the utterance of insulting words. It may be found in the negligence or recklessness of the defamer's acts. An injury to a defamed person may be as grievous whether or not his defamer had an honest belief in the truth of his words. Cook v. Patterson Drug Co., 185 Va. 516 , 39 S.E.2d 304 (1946).

In an action under the statute the law infers malice from the publication of matter which is insulting or defamatory. Chaffin v. Lynch, 83 Va. 106 , 1 S.E. 803 (1887).

The motive which actuated the person using the words is not material, except upon the questions of malice and the measure of damages. Cook v. Patterson Drug Co., 185 Va. 516 , 39 S.E.2d 304 (1946).

Actual malice is necessary in order to abuse a qualified privilege. Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614 (W.D. Va. 1967).

Actual malice is indispensable for punitive damages. - Under this section, malice, either express or implied, is essential to a recovery for slander or for insulting words, but actual or express malice need not be proved except as a basis for punitive damages. For the latter purpose it is indispensable. Windsor v. Carlton, 136 Va. 652 , 118 S.E. 222 (1923).

Statements and conduct of a defendant after the utterance of a slander are admissible to show malice. Kroger Grocery & Baking Co. v. Rosenbaum, 171 Va. 158 , 198 S.E. 461 (1938).

Burden of proof. - Ordinarily, the law implies malice from the use of words defamatory or insulting. But the presumption is the other way where the occasion of the publication is privileged, and the onus is then upon the plaintiff to prove malice in fact. Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614 (W.D. Va. 1967).

F. PRIVILEGED COMMUNICATIONS.

Privileged communication defined. - A privileged communication is one made in good faith upon any subject matter in which the party communicating has an interest or in reference to which he has, or honestly believes he has, a duty, to a person having a corresponding interest or duty, and which contains matter which, without the occasion upon which it is made, would be defamatory and actionable. Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614 (W.D. Va. 1967).

Where the defendant acts in performance of a duty, legal or social, or in defense of his own interest, the occasion is privileged. Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614 (W.D. Va. 1967).

Privilege is a bar to the action unless the plaintiff proves by a preponderance of the evidence an abuse of the privilege. Guide Publishing Co. v. Futrell, 175 Va. 77 , 7 S.E.2d 133 (1940); Massey v. Jones, 182 Va. 200 , 28 S.E.2d 623 (1944).

Where public interest in free expression and communication of ideas is sufficient to outweigh the interest of the State in protecting the individual plaintiff from damage to his reputation and social relationships, the law does not allow recovery of damages, compensatory or punitive, occasioned by defamatory speech or publication, unless there has been an abuse of the privilege by showing that the defamatory language, either written or spoken, was made with actual malice. Old Dominion Branch 496 v. Austin, 213 Va. 377 , 192 S.E.2d 737 (1972), rev'd on other grounds, 418 U.S. 264, 94 S. Ct. 2770, 41 L. Ed. 2d 745 (1974).

Must be made in good faith to be privileged. - Where the occasion of the publication declared on was privileged, the jury should have been instructed to find whether it was used in good faith by the defendant. Chaffin v. Lynch, 83 Va. 106 , 1 S.E. 803 (1887).

Circumstances of publication may confer privilege. - A libelous statement, otherwise actionable, may not be so for the reason that the circumstances under which it was published confer upon the publisher a privilege to publish it. Old Dominion Branch 496 v. Austin, 213 Va. 377 , 192 S.E.2d 737 (1972), rev'd on other grounds, 418 U.S. 264, 94 S. Ct. 2770, 41 L. Ed. 2d 745 (1974).

Privileged when communication to person having a corresponding interest or duty. - A communication, made in good faith on a subject matter in which the person communicating has an interest, or owes a duty, legal, moral or social, is qualifiedly privileged if made to a person having a corresponding interest or duty. Taylor v. Grace, 166 Va. 138 , 184 S.E. 211 (1936).

Qualified privilege. - The rule is well settled that when the communication upon which the action is based is one of qualified privilege, the question is not whether the charge was true or false, but only whether the privilege was abused or the language employed was uttered or published with malice, and unless there is evidence from which a jury may fairly conclude there was malice, there can be no recovery. Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614 (W.D. Va. 1967).

When the words complained of are uttered upon an occasion of qualified privilege, then in order to recover, it must appear from the evidence that the language used was disproportioned in strength and violence to the occasion, or went beyond the exigency of the occasion, or that the occasion was abused to gratify the ill will of the defendant; in other words, that the defendant was acting from actual malice. Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614 (W.D. Va. 1967).

One insult cannot be set off against another. Yet if a man is attacked by another in a newspaper, he may reply. If his reply is not unnecessarily defamatory of his assailant, and is honestly made in self-defense, it will be privileged. Chaffin v. Lynch, 83 Va. 106 , 1 S.E. 803 (1887); Haycox v. Dunn, 200 Va. 212 , 104 S.E.2d 800 (1958).

Criticism of public official. - When a person is in a public capacity he may be criticized by the newspapers in the public interest; and that rebuts the presumption of malice in law which the court might otherwise make, and leaves malice in fact to be proved, and malice in fact to be found, either in the special language of the article or in circumstances proved which point to some motive of enmity to the particular individual. Story v. Norfolk-Portsmouth Newspapers, Inc., 202 Va. 588 , 118 S.E.2d 668 (1961).

Language uttered in judicial proceeding is privileged. - See Massey v. Jones, 182 Va. 200 , 28 S.E.2d 623 (1944).

But the privilege of a party or counsel in judicial proceedings is limited. - A party or counsel shall not avail himself of his situation to gratify private malice by uttering slanderous expressions, either against a party, witness or third person, which have no relation to the cause or subject matter of the inquiry. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 (1925).

When order dismissing employee is privileged. - A statement by a corporation in an order dismissing an employee that he was dismissed because of untrue statement made by him concerning reflection cast by one officer of the company, where there was no evidence of malice on the part of the company or its agents, was held to be a privileged communication and was not actionable. Brown v. Norfolk & W. Ry., 100 Va. 619 , 42 S.E. 664 (1902).

A State Police officer is not afforded an absolute privilege for words spoken in a departmental hearing before the superintendent of State Police. Elder v. Holland, 208 Va. 15 , 155 S.E.2d 369 (1967) commented on in 3 U. Rich. L. Rev. 202 (1968).

A State Police officer is not immune from liability for defamatory words spoken while performing his duties. Elder v. Holland, 208 Va. 15 , 155 S.E.2d 369 (1967) commented on in 3 U. Rich. L. Rev. 202 (1968).

Illustration of conditional privilege. - For illustration of occasion held to be one of conditional privilege, see Luhring v. Carter, 193 Va. 529 , 69 S.E.2d 416 (1952).

G. JUSTIFICATION.

In Virginia both the truth and privilege are complete defenses in bar of any action for defamation, whether it be for common-law slander or libel, or for insulting words. The same rules of law with reference to the pleading and proof of these defenses apply in an action under this section as in an action for common-law slander or libel since the enactment of § 8.01-46 . Rosenberg v. Mason, 157 Va. 215 , 160 S.E. 190 (1931). See Guide Publishing Co. v. Futrell, 175 Va. 77 , 7 S.E.2d 133 (1940); Massey v. Jones, 182 Va. 200 , 28 S.E.2d 623 (1944).

H. DAMAGES.

Punitive damages may be awarded without actual or compensatory damages if a plaintiff shows per se defamation by the media and meets by clear and convincing evidence the standard of actual malice. Newspaper Publishing Corp. v. Burke, 216 Va. 800 , 224 S.E.2d 132 (1976).

In actions under this section, damages are presumed from proof of the utterance of insulting words made actionable by the statute, and in order to recover it is not necessary to prove actual or pecuniary loss. Weatherford v. Birchett, 158 Va. 741 , 164 S.E. 535 (1932).

The law presumes that damages result from the utterance of insulting words, made actionable by the statute, just as it does where the words uttered are actionable per se. It is not necessary in either case in order to recover, to prove actual or pecuniary loss. Boyd v. Boyd, 116 Va. 326 , 82 S.E. 110 (1914); W.T. Grant Co. v. Owens, 149 Va. 906 , 141 S.E. 860 (1928). See also, Jordan v. Melville Shoe Corp., 150 Va. 101 , 142 S.E. 387 (1928).

No rule for measure of damages. - In an action, under this section, there is no rule of law fixing the measure of damages, nor can it be reached by any process of computation. Boyd v. Boyd, 116 Va. 326 , 82 S.E. 110 (1914).

The amount of the damages is to be measured by the prejudice sustained by the plaintiff. Moseley v. Moss, 47 Va. (6 Gratt.) 534 (1850).

There is no fixed standard for measuring exemplary or punitive damages, and the amount of the award is largely a matter of discretion with the jury. Old Dominion Branch 496 v. Austin, 213 Va. 377 , 192 S.E.2d 737 (1972), rev'd on other grounds, 418 U.S. 264, 94 S. Ct. 2770, 41 L. Ed. 2d 745 (1974).

Written communication to justice of peace under former § 19.1-18. - Where a person is charged with criminal trespass, arrested, and let to bail, and the injured private individual causing the arrest asserts in a written communication to a justice of the peace under former § 19.1-18 that he has received satisfaction for the injury, such written communication is one made in a judicial proceeding and is relevant to the matter under inquiry, and no recovery upon such writing can be had under this section. Darnell v. Davis, 190 Va. 701 , 58 S.E.2d 68 (1950).

If express malice on the part of the defendant is shown, exemplary damages are presumed and need not be proved. It is not improper to instruct the jury that if from the evidence they believe defendant uttered the slander from malice, they may find exemplary damages. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 (1925).

When corporation liable for punitive damages. - In such case the person who has suffered injury may recover compensatory damages from the corporation as principal, and may recover punitive damages if the principal has authorized the act or has subsequently ratified it. Jordan v. Melville Shoe Corp., 150 Va. 101 , 142 S.E. 387 (1928).

Actual damages must be proved for judgment against principal on unauthorized insult of agent. - In an action for insulting words against the Director General of Railroads, no actual damages were proved, and the only damages which could be recovered were punitive damages, and this only because of this section. It was held that plaintiff had failed in his proof to show that he was entitled to any damages, as punitive damages could not be recovered against the Director General. Hines v. Gravins, 136 Va. 313 , 112 S.E. 869 (1922), cert. denied, 265 U.S. 583, 44 S. Ct. 458, 68 L. Ed. 2d 1191 (1924).

Authorization or ratification by principal necessary to sustain punitive damages against him. - In an action for damages for insulting words under this section against the Director General of Railroads, there being no evidence that the federal agent or the Director General ever at any time authorized, ratified, or approved the offensive charge made by a carrier's agent, instructions authorizing the recovery of punitive damages were erroneous. Hines v. Gravins, 136 Va. 313 , 112 S.E. 869 (1922), cert. denied, 265 U.S. 583, 44 S. Ct. 458, 68 L. Ed. 2d 1191 (1924).

In an action for insulting words, defendant corporation was liable for compensatory damages for the utterance of insulting words by its agent, in the course of his employment in the business of the corporation, but not for punitive damages, because the corporation neither authorized the use of such words nor had it since ratified their use. The trial court, therefore, was right in setting aside the verdict as the damages awarded, or part thereof, were clearly punitive, but it erred in entering judgment for the defendant corporation. It should have awarded a new trial on the question of the amount of compensatory damages. Jordan v. Melville Shoe Corp., 150 Va. 101 , 142 S.E. 387 (1928).

Effect of bad reputation of plaintiff. - While there is no rule fixing the quantum of compensation for insult, mental suffering, and injury to the reputation of the plaintiff or for punishment of the offender, one of unblemished reputation is entitled to greater damages than one whose reputation is such that he is little hurt from the action of which complaint is made. The effect of bad reputation is to reduce the damage inflicted. Stubbs v. Cowden, 179 Va. 190 , 18 S.E.2d 275 (1942).

Effect of motive of defendant. - The motive which actuated the person using the words is not material, except upon the questions of malice and the measure of damages. Cook v. Patterson Drug Co., 185 Va. 516 , 39 S.E.2d 304 (1946).

Questions for jury. - In cases under this section, the jury is regarded as the best and safest tribunal to determine not only the character of the alleged insulting words, but also the measure of damages. Its verdict will not be set aside in this State, unless it is so grossly excessive, or inadequate, as to indicate that the jury, in rendering it were actuated by prejudice, or corruption, or that they were misled by some mistaken view of the case. Boyd v. Boyd, 116 Va. 326 , 82 S.E. 110 (1914); Weatherford v. Birchett, 158 Va. 741 , 164 S.E. 535 (1932); Kroger Grocery & Baking Co. v. Rosenbaum, 171 Va. 158 , 198 S.E. 461 (1938).

The determination of the amount of damages in an action under this section is primarily the province of the jury under proper instructions of the court, and the courts are generally reluctant to interfere with their verdict. Nevertheless, each case must be considered on its own facts and circumstances, and whether the award is inadequate or excessive is a legal question addressed to the sound discretion of the court in the exercise of its supervisory power over verdicts to prevent a miscarriage of justice. Stubbs v. Cowden, 179 Va. 190 , 18 S.E.2d 275 (1942).

Instruction as to mitigation. - In a proceeding for damages under the statute, instructing jury that if plaintiff was entitled to recover anything, then in assessing damages they could take into consideration her improper relations with the husband of defendant, if proven in the case, in mitigation of damages, was not error. Stubbs v. Cowden, 179 Va. 190 , 18 S.E.2d 275 (1942).

I. EVIDENCE.

Proof of insulting words. - In an action under the statute, the plaintiff makes out a prima facie case simply by proving the insulting words whether written or spoken as laid in the motion. Chaffin v. Lynch, 83 Va. 106 , 1 S.E. 803 (1887).

Proof of truth and privilege as defense. - The truth and privilege are complete defenses, and the same rules of law with reference to the proof of these defenses apply in an action under this section as in an action for common-law slander or libel. Massey v. Jones, 182 Va. 200 , 28 S.E.2d 623 (1944).

Burden on plaintiff of proving circumstances and meaning of words. - In an action under this section plaintiff, treasurer of a quasi-religious organization, contended that defendant, founder and head of the organization, by the use of certain language to the congregation, meant that plaintiff had made a false report of the financial affairs of the organization entrusted to him and had misapplied money. It was held that a literal meaning of the words used did not import misapplication of funds and, this being true, it was encumbent on plaintiff to prove that the manner and circumstances in which the words were uttered conveyed the meaning placed upon them by him. Taylor v. Grace, 166 Va. 138 , 184 S.E. 211 (1936).

Where the occasion is one of qualified privilege the burden is cast upon plaintiff to prove malice in fact. In such cases proof might be accomplished by the language itself if it is capable of affording evidence of express malice, or by extrinsic evidence. Story v. Norfolk-Portsmouth Newspapers, Inc., 202 Va. 588 , 118 S.E.2d 668 (1961).

Evidence of malice. - In an action for libel the court did not err in permitting a witness to testify that plaintiff gave her, as a representative of a newspaper, a writing to be inserted conditionally as an advertisement which reflected on defendant's honor, and indicated that he had not been straight in his accounts while in defendant's employ. This evidence was admissible to show malice. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 (1925).

In an action for libel it was not error for the court to permit a witness to testify to a conversation which he overheard between defendant and a third party in which defendant said plaintiff was "one of the grandest rascals that ever was and if he wanted a man to do the darkest, dirtiest deed he would recommend" plaintiff. The court instructed the jury to consider this evidence for the purpose of ascertaining the state of mind of the defendant. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 (1925).

Where the jury found in favor of the alleged utterer of defamatory statements and where the editor failed and neglected to recheck the facts after plaintiff told him the statements were untrue, there was evidence from which the jury could find that the defamatory publication complained of was made with constitutional malice. Newspaper Publishing Corp. v. Burke, 216 Va. 800 , 224 S.E.2d 132 (1976).

Inference of malice from use of violent and disproportionate language. - The inference of actual malice which may arise from the use of violent and disproportionate language is evidentiary and rebuttable. Story v. Norfolk-Portsmouth Newspapers, Inc., 202 Va. 588 , 118 S.E.2d 668 (1961).

Evidence of falsity of statements. - In an action for libel it was not error to permit plaintiff to testify that certain statements alleged to have been made in a letter sent by defendant's corporation to another corporation were false. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 (1925).

Evidence of character of plaintiff in mitigation of damages. - In an action on the statute as well as at common law the general bad character of the plaintiff is admissible in mitigation of damages. Moseley v. Moss, 47 Va. (6 Gratt.) 534 (1850).

The man of unblemished reputation is entitled to greater damage than is one whose reputation is already so bad as to receive little or no detriment from the action of which complaint is made. The purpose of admitting evidence of bad reputation is to diminish the damage, not to bar the action. Injury to the reputation is not the only element for which compensatory damages are allowed, but the pain, the mortification, the insult is usually in proportion to a person's good or bad reputation. Weatherford v. Birchett, 158 Va. 741 , 164 S.E. 535 (1932).

Newspaper articles admissible. - In an action under this section for procuring the publication of libelous words in newspaper articles, such articles are admissible in evidence after the use of the actionable words has been established, not only on the question of damages, but in connection with the use of the words sued on as tending to show that the language was employed by defendant prior to the publication. Haskell v. Bailey, 63 F. 873 (4th Cir. 1894).

Oral statement prior to publication. - A verdict that defendant caused the publication of libelous articles under this section will be sustained when it appears from his testimony as a witness for plaintiff that he used the words set out in the declaration in a conversation with one of the editors of the paper prior to their publication. Haskell v. Bailey, 63 F. 873 (4th Cir. 1894).

And like words spoken on another occasion. - When the words laid in the declaration have been proved, and not before, proof of the speaking of like words as those laid, either before or after they were spoken, is admissible to affect the measure of damages. Hansbrough v. Stinnett, 66 Va. (25 Gratt.) 495 (1874).

As tending to show malice, it is always competent for the plaintiff to prove that the defendant has repeated the slander charged, or has used the same, or similar words, upon other occasions. And where statements other than the one upon which the action is based tend to show actual malice in the utterance of the slander sued on, such statements may also be shown in evidence. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 (1925).

Other slanderous words, spoken or written of plaintiff, whether before or after those laid in the declaration, may be given in evidence, to show malice on the part of the defendant when that is an issue in the case. Kroger Grocery & Baking Co. v. Rosenbaum, 171 Va. 158 , 198 S.E. 461 (1938).

Admission of general manager of corporation weeks after publication not admissible. - In an action under the statute, admissions by the general manager of the defendant corporation made weeks after the publication of the alleged libel are not a part of the res gestae and cannot be introduced as evidence for the plaintiff. M. Reusch v. Roanoke Cold Storage Co., 91 Va. 534 , 22 S.E. 358 (1895), overruled on other point Rosenberg & Sons v. Craft, 182 Va. 512 , 29 S.E.2d 375 (1944).

Character of witnesses no evidence as to damages. - In an action for defamation, where the speaking of the insulting words is admitted, the character of the witnesses who testified only as to the language used and the circumstances attending its utterance, and not as to the damages sustained, is of no value in determining the damages sustained. Boyd v. Boyd, 116 Va. 326 , 82 S.E. 110 (1914).

When repetition may be shown in evidence against original slanderer. - When a repetition is authorized and is the direct and natural result of the original slander, it may be shown in evidence against the original defamer, and this is especially true where it was intended and contemplated that the slander be repeated. Luhring v. Carter, 193 Va. 529 , 69 S.E.2d 416 (1952).

Evidence held insufficient to sustain verdict for plaintiff under count for insulting words. M. Rosenberg & Sons v. Craft, 182 Va. 512 , 29 S.E.2d 375 (1944).

J. PLEADING AND PRACTICE.
1. IN GENERAL.

Election of remedies. - A person aggrieved by the insulting words of another may elect whether he will proceed as at common law or under the statute. Moseley v. Moss, 47 Va. (6 Gratt.) 534 (1850); Hogan v. Wilmoth, 57 Va. (16 Gratt.) 80 (1860); Chaffin v. Lynch, 83 Va. 106 , 1 S.E. 803 (1887); Payne v. Tancil, 98 Va. 262 , 35 S.E. 725 (1900); Sun Life Assurance Co. of Can. v. Bailey, 101 Va. 443 , 44 S.E. 692 (1903).

A person aggrieved by the insulting words of another must declare either for a common-law slander or for insulting words under the statute; he cannot declare for both unless he does so separately in distinct counts of the declaration. Moseley v. Moss, 47 Va. (6 Gratt.) 534 (1850); Bourland v. Eidson, 49 Va. (8 Gratt.) 27 (1851); Hogan v. Wilmoth, 57 Va. (16 Gratt.) 80 (1860); Chaffin v. Lynch, 83 Va. 106 , 1 S.E. 803 (1887).

Jurisdiction and venue. - Words actionable at common law may be sued on in a common-law action in any jurisdiction where the defendant may be found. But where the action rests upon a statute and the words were spoken or published exclusively in a state other than that in which the action was brought, the plaintiff must prove as a fact that a like statute was in force in such other state. Davis v. Heflin, 130 Va. 169 , 107 S.E. 673 (1921). See also, Haskell v. Bailey, 63 F. 873 (4th Cir. 1894).

Effect of elimination of provision as to demurrer. - The 1940 amendment of this section which eliminated the sentence that no demurrer shall preclude a jury from passing thereon, revealed that it was the intent of the legislature that the court should exercise the same power and authority over actions for insulting words that it exercises over actions of libel and slander. M. Rosenberg & Sons v. Craft, 182 Va. 512 , 29 S.E.2d 375 (1944).

Bill of particulars held not to state new cause of action. - Bill of particulars filed in action for slander more than one year after the alleged tort did not state a new and distinct cause of action against the defendants which would be barred by the statutes of limitations and was not an amendment to the original notice of motion where the bill of particulars only particularized, specified, and pointed out the intended and accomplished result of the original statements and the damages directly caused thereby. Luhring v. Carter, 193 Va. 529 , 69 S.E.2d 416 (1952).

2. MOTION.

What must be stated in motion. - In an action of slander, if the plaintiff proceeds under the statute, he must in his motion aver that the words from their usual construction and common acceptation are construed as insults, and tend to violence and breach of the peace, or else employ some other equivalent averment to denote that the words are actionable under the statute. Hogan v. Wilmoth, 57 Va. (16 Gratt.) 80 (1860).

A motion alleged in each count that the words used are, "from their usual construction and common acceptance, construed as insults, and tend to violence and breach of the peace." Such are the terms of the statute, which makes the motion one under the statute, though the words used are objectionable at common law. Haskell v. Bailey, 63 F. 873 (4th Cir. 1894).

If plaintiff does not move under the statute, his motion must set out a common-law slander, and if the words charged do not amount to slander they cannot be helped by the innuendo. Moseley v. Moss, 47 Va. (6 Gratt.) 534 (1850).

Where the motion does not show by the proper averments that the action is under the statute, it may be demurred to as defective, unless it sets out properly, and in substantial compliance with the rules of pleading, such a charge as constitutes defamation at the common law. Hogan v. Wilmoth, 57 Va. (16 Gratt.) 80 (1860).

3. PLEAS.

Pleading the truth and privilege. - The same rules of law with reference to pleading the defenses of the truth and privilege apply in an action under this section as in an action at law for common-law slander or libel. Massey v. Jones, 182 Va. 200 , 28 S.E.2d 623 (1944).

When plea of special damages required. - Where alleged defamatory language was not actionable per se, and there were no allegations or proof of special damages, the trial court did not err in striking out plaintiff's evidence and dismissing the action. Shupe v. Rose's Stores, Inc., 213 Va. 374 , 192 S.E.2d 766 (1972).

Plea of bankruptcy of plaintiff. - In an action of slander, a plea that since the commencement of the action the plaintiff has been adjudicated a bankrupt, is not a good plea. Dillard v. Collins, 66 Va. (25 Gratt.) 343 (1874).

4. INSTRUCTIONS.

Instruction as to malice. - In an action for libel an instruction that if from the evidence the jury believe that the charges contained in the letter were untrue, and if they further believe from the evidence that the defendant has reiterated the charges therein, this is a circumstance tending to show malice on the part of the defendant, was not erroneous. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 (1925).

Instruction as to privilege. - In an action under this section, instruction that if a newspaper's account of a court proceeding was a fair, impartial and substantially accurate report the privilege of the newspaper to publish it was a complete defense, was fair to the plaintiff and correctly stated the law. Vaughan v. News Leader Co., 105 F.2d 360 (4th Cir. 1939).

Privilege and abuse thereof. - Where allegedly libelous publications were made in response to attacks on certain of defendants made by plaintiff in his newspaper, the court was held to have instructed correctly that the occasion was privileged, but the instructions were held faulty in that they did not sufficiently define for the jury what constitutes an abuse of privilege. Haycox v. Dunn, 200 Va. 212 , 104 S.E.2d 800 (1958).

Instructions as to truth of statements. - In an action for libel defendant requested the court to instruct the jury that if they believe from the evidence that the alleged libelous statements contained in the letter from defendant were substantially true, they must find for the defendant. The court refused to give this instruction as offered, but amended the same by inserting after the words "substantially true" the words "in the ordinary and usually accepted meaning thereof." Vaughan v. Lytton, 126 Va. 671 , 101 S.E. 865 (1920).

Instructions as to damages. - Where the court had properly instructed the jury as to the rights of plaintiff to recover exemplary damages, it was not error for the court to modify an instruction for defendant limiting the plaintiff to actual damages by adding: "But this instruction must be considered in connection with instructions" in regard to exemplary damages. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 (1925).

Instruction as to burden of proof. - In an action under this section, an instruction that the burden was upon each plaintiff to prove by a preponderance of the evidence that the defendant circulated defamatory statements with actual malice correctly stated the law. Old Dominion Branch 496 v. Austin, 213 Va. 377 , 192 S.E.2d 737 (1972), rev'd on other grounds, 418 U.S. 264, 94 S. Ct. 2770, 41 L. Ed. 2d 745 (1974).

Instruction held erroneous. - Where the publication complained of depicted the plaintiff as the "operator" of a club which was being run illegally, it was error to instruct the jury to find for defendant if they found plaintiff owned the club and consented to its illegal operation. Saleeby v. Free Press, Inc., 197 Va. 761 , 91 S.E.2d 405 (1956).

5. PROVINCE OF COURT AND JURY.

It is the duty of the court to define what constitutes insulting words, and it is for the jury to say whether the particular words come within the definition. Cook v. Patterson Drug Co., 185 Va. 516 , 39 S.E.2d 304 (1946).

It is for the jury to determine whether or not the words were insulting. Moseley v. Moss, 47 Va. (6 Gratt.) 534 (1850).

In an action under this section whether or not the words used are insulting is a jury question, depending on whether from "their usual construction and common acceptation" they may be "construed as insults, and tend to violence and breach of the peace." Cook v. Patterson Drug Co., 185 Va. 516 , 39 S.E.2d 304 (1946).

When question of law or of fact. - To justify publication of defamatory matter, the occasion must be privileged, and must be used bona fide, without malice. Whether the occasion be privileged, is a question of law for the court. Whether it has been used bona fide, is a question of fact for the jury. Chaffin v. Lynch, 83 Va. 106 , 1 S.E. 803 (1887).

Determination of whether or not the occasion is one of qualified privilege is ordinarily a matter to be decided by the court. Yet if the evidence upon which the asserted privilege is based is in substantial conflict, whether or not the occasion is one of privilege becomes a mixed question of law and fact to be determined by the jury under appropriate instructions from the court. Luhring v. Carter, 193 Va. 529 , 69 S.E.2d 416 (1952).

Though the occasion be qualifiedly privileged, if the language used be clearly disproportionate, extraneous and impertinent to the occasion and subject at hand, and thus beyond the scope and protection of the privilege, then there is no factual issue on the abuse of privilege to submit to the jury. Luhring v. Carter, 193 Va. 529 , 69 S.E.2d 416 (1952).

The question of privilege was one for the court, and the question of the use which the defendants made of their privilege, that is, whether they acted maliciously or not, was a question for the jury to decide. Haycox v. Dunn, 200 Va. 212 , 104 S.E.2d 800 (1958).

The existence of a privileged (either absolute or qualified) occasion is a question of law to be decided by the court. Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614 (W.D. Va. 1967).

It is for the jury to determine what damage was occasioned to the plaintiff by the insulting words. Moseley v. Moss, 47 Va. (6 Gratt.) 534 (1850).

In action under this section, the question whether a published report of a court proceeding was a "fair, impartial and accurate report" was one for the jury. Whether the plaintiff suffered any damages from an inaccurate report was also a question for the jury. Vaughan v. News Leader Co., 105 F.2d 360 (4th Cir. 1939).

Malice is question for jury. - Notwithstanding that the occasion was privileged, there was evidence upon which the jury might properly have found that the privilege was abused. The language itself, italicized by the defendant, taken in connection with the previous correspondence and dispute between the parties, would warrant the court in upholding the action of the jury upon the question of malice. Vaughan v. Lytton, 126 Va. 671 , 101 S.E. 865 (1920).

The words used, under the circumstances recited, were sufficient to submit to the jury the question whether or not defendants were actuated by actual malice. Haycox v. Dunn, 200 Va. 212 , 104 S.E.2d 800 (1958).

Ordinarily, the question of whether the defendant acted with malice is a question of fact to be presented to the jury. But where the communication is privileged, unless there is evidence from which a jury may fairly conclude that there was malice, there can be no recovery. Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614 (W.D. Va. 1967).

Setting aside verdict. - While as a general rule the jury is regarded as the best and safest tribunal to determine whether the words are or are not actionable, the court has inherent power to set aside the verdict, "in order to correct any manifest departure from right and justice." Guide Publishing Co. v. Futrell, 175 Va. 77 , 7 S.E.2d 133 (1940).

In an action under the statute the court would have the power to correct any manifest departure from right and justice on the part of the jury. Corr v. Lewis, 94 Va. 24 , 26 S.E. 385 (1896).

CIRCUIT COURT OPINIONS

Actionable words. - Defendant's statement at public meeting that the plaintiff, who was married, was "shacking up with a blond from Hillsboro" was actionable per se as that statement meant the plaintiff was sleeping with or living together with the blond as unmarried sexual partners, which was an adulterous relationship. The jury was to decide if the statement was meant to describe actual facts. Kelly v. Grigsby, 67 Va. Cir. 153, 2005 Va. Cir. LEXIS 172 (Loudoun County Mar. 8, 2005).

Curse words not actionable. - Curse words and gutter language used during the course of an altercation could not be understood to convey a false representation of fact. The words used, although uncivilized and offensive, did not rise to the level necessary to sustain a cause of action for defamation and similarly a claim under the Insulting Words Statute. Walker v. Harrison, 75 Va. Cir. 319, 2008 Va. Cir. LEXIS 249 (Salem July 7, 2008).

Words did not tend to produce violent reaction. - Alleged son failed to present facts necessary to support a claim for insulting words under § 8.01-45 because the words an alleged father used did not meet the standard of tending to cause violence or a breach of the peace since they were not uttered in a face to face confrontation or manner likely to present a clear and immediate danger of the same; for § 8.01-45 to be actionable the words must be conveyed face to face or in such manner as to incite an immediate breach of the peace. Hotung v. Hotung, 85 Va. Cir. 241, 2012 Va. Cir. LEXIS 71 (Fairfax County Aug. 22, 2012).

False representation of fact. - Words at issue in a case must convey a false representation of fact to be actionable under the Insulting Words Statute. Walker v. Harrison, 75 Va. Cir. 319, 2008 Va. Cir. LEXIS 249 (Salem July 7, 2008).

Jury's function. - While a statement was actionable per se, it was for the jury to determine whether, under the circumstances of the case, the phrase was reasonably understood by listeners to describe an actual fact. To make that decision, the jurors were to take into consideration the entire background of the case and the context in which the statements were made. Kelly v. Grigsby, 67 Va. Cir. 153, 2005 Va. Cir. LEXIS 172 (Loudoun County Mar. 8, 2005).

Comments on work performance when an employer discussed the character of its employee with its employee's potential employers, the employer was protected by the qualified privilege if such a conversation was made in good faith and if the statements were not made with malice, and plaintiff failed to show malice on the part of defendant in making the statements in question. Sarno v. Clanton, 59 Va. Cir. 384, 2002 Va. Cir. LEXIS 371 (Norfolk Aug. 22, 2002).

Statements relating to job performance. - Statements imputing unfitness to perform the offices or duties of employment or lack of integrity in the discharge of those duties were such as may have provoked reasonable persons to breaches of the peace, since they were made after plaintiffs had been cleared of wrongdoing. Jennings v. Jones, 70 Va. Cir. 56, 2005 Va. Cir. LEXIS 294 (Petersburg 2005).

Statements insufficient to make out cause of action. - Father's demurrer to an attorney's complaint alleging that statements the father made in a letter tended toward violence or breach of the peace pursuant to § 8.01-45 was sustained because the father's statements were not sufficient to make out a cause of action under § 8.01-45 since they did not tend to violence and breach of the peace; no amendment to the complaint would cure the deficiency. Donner v. Rubin, 77 Va. Cir. 309, 2008 Va. Cir. LEXIS 238 (Chesapeake 2008).

Alleged father's motion to strike the insulting words count of an alleged son's complaint was granted because the son used the identical publication to support both the defamation and insulting words counts; absent the clear and present tendency to incite violence, insulting words count was entirely subsumed by defamation, and there was but one cause of action that could be predicated upon the set of facts, and the cause of action was defamation. Hotung v. Hotung, 85 Va. Cir. 241, 2012 Va. Cir. LEXIS 71 (Fairfax County Aug. 22, 2012).

Demurrer sustained for failure to state a cause of action. - Demurrers filed by a former employer and former supervisors were sustained and a former employee's cause of action for insulting words was dismissed because the statements the supervisors made, in which they allegedly used abusive language in calling the employee stupid, were relative in nature and depended largely upon the speaker's viewpoint; therefore, the employee failed to state facts that supported a cause of action for defamation based upon the statements. Jarrett v. Goldman, 67 Va. Cir. 361, 2005 Va. Cir. LEXIS 49 (Portsmouth 2005).

§ 8.01-46. Justification and mitigation of damages.

In any action for defamation, the defendant may justify by alleging and proving that the words spoken or written were true, and, after notice in writing of his intention to do so, given to the plaintiff at the time of, or for, pleading to such action, may give in evidence, in mitigation of damages, that he made or offered an apology to the plaintiff for such defamation before the commencement of the action, or as soon afterwards as he had an opportunity of doing so in case the action shall have been commenced before there was an opportunity of making or offering such apology.

(Code 1950, § 8-631; 1977, c. 617.)

Law review. - For survey of Virginia tort law for the year 1975-1976, see 62 Va. L. Rev. 1489 (1976).

Michie's Jurisprudence. - For related discussion, see 12A M.J. Libel and Slander, § 24.

CASE NOTES

It is not necessary to prove the literal truth of statements made. Alexandria Gazette Corp. v. West, 198 Va. 154 , 93 S.E.2d 274 (1956) (decided under prior law).

And slight inaccuracies of expression are immaterial, provided the defamatory charge is true in substance, and it is sufficient to show that the imputation is "substantially" true. Saleeby v. Free Press, Inc., 197 Va. 761 , 91 S.E.2d 405 (1956); Alexandria Gazette Corp. v. West, 198 Va. 154 , 93 S.E.2d 274 (1956) (decided under prior law).

As a matter of state law the negligence standard should be applicable to media and nonmedia defendants alike. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

The application of this negligence standard is expressly limited, however, to circumstances where the defamatory statement makes substantial danger to reputation apparent. The trial judge shall make such determination as a matter of law. If, on the other hand, no substantial danger to reputation is apparent from the statement in issue, New York Times malice must be established to recover compensatory damages. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

Truth only shown by plea of justification. - The truth of defamatory words, written or spoken, cannot in this State be shown under the plea of not guilty, either in bar or in mitigation of damages, but can only be shown under a plea of justification. Williams Printing Co. v. Saunders, 113 Va. 156 , 73 S.E. 472 (1912) (decided under prior law).

The language used in this section that "the defendant may justify by alleging and proving that the words spoken or written were true," plainly intends that the truth shall be specially pleaded, for if the legislature had intended that the proof should be given in under the plea of not guilty, there was no occasion to require that it should be alleged. Williams Printing Co. v. Saunders, 113 Va. 156 , 73 S.E. 472 (1912) (decided under prior law).

Plaintiff must prove falsity. - In an action brought by a private individual to recover actual, compensatory damages for a defamatory publication, the plaintiff may recover upon proof by a preponderance of the evidence that the publication was false, and that the defendant either knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based. Under this standard, truth no longer is an affirmative defense to be established by the defendant. Instead, the plaintiff must prove falsity, because he is required to establish negligence with respect to such falsity. Such liability may be based upon negligence, whether or not the publication in question relates to a matter of public or general concern. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

An apology under this section goes only to mitigate damages, and if the plaintiff agrees to accept it in complete satisfaction it is an agreement without consideration. James v. Powell, 154 Va. 96 , 152 S.E. 539 (1930) (decided under prior law).

An apology published after an action for libel has been instituted would be of no avail. James v. Powell, 154 Va. 96 , 152 S.E. 539 (1930) (decided under prior law).

§ 8.01-46.1. Disclosure of employment-related information; presumptions; causes of action; definitions.

  1. Any employer who, upon request by a person's prospective or current employer, furnishes information about that person's professional conduct, reasons for separation or job performance, including, but not limited to, information contained in any written performance evaluations, shall be immune from civil liability for furnishing such information, provided that the employer is not acting in bad faith. An employer shall be presumed to be acting in good faith. The presumption of good faith shall be rebutted if it is shown by clear and convincing evidence that the employer disclosed such information with knowledge that it was false, or with reckless disregard for whether it is false or not, or with the intent to deliberately mislead.
  2. In a civil action brought against an employer for disclosing the information described in subsection A, if the trier of fact determines the employer acted in bad faith, punitive damages may be awarded, as provided by § 8.01-38.1 .
  3. As used in this section, the following words and phrases shall have the following meanings:

    "Employee" means any person, paid or unpaid, in the service of an employer.

    "Employer" means any person, firm or corporation, including the Commonwealth of Virginia and its political subdivisions, and their agents, who has one or more employees or individuals performing services under any contract of hire or service, express or implied, oral or written.

    "Information" includes, but is not limited to, facts, data and opinions.

    "Job performance" includes, but is not limited to, ability, attendance, awards, demotions, duties, effort, evaluations, knowledge, skills, promotions, productivity and disciplinary actions.

    "Professional conduct" includes, but is not limited to, the ethical standards which govern the employee's profession, or lawful conduct which is expected of the employee by the employer.

    "Prospective employer" means any employer who is considering a person for employment.

    (2000, c. 1005.)

Editor's note. - Acts 2000, c. 1005, cl. 2 provides that the provisions of the act shall apply to any cause of action occurring on or after July 1, 2000.

Law review. - For 2000 survey of Virginia labor and employment law, see 34 U. Rich. L. Rev. 907 (2000).

CIRCUIT COURT OPINIONS

Entitlement to qualified privilege. - When an employer discussed the character of its employee with its employee's potential employers, the employer was protected by the qualified privilege if such a conversation was made in good faith and if the statements were not made with malice, and plaintiff failed to show malice on the part of defendant in making the statements in question. Sarno v. Clanton, 59 Va. Cir. 384, 2002 Va. Cir. LEXIS 371 (Norfolk Aug. 22, 2002).

§ 8.01-47. Immunity of persons investigating or reporting certain incidents at schools.

In addition to any other immunity he may have, any person who, in good faith with reasonable cause and without malice, acts to report, investigate or cause any investigation to be made into the activities of any student or students or any other person or persons as they relate to conduct involving bomb threats, firebombs, explosive materials or other similar devices as described in clauses (vi) and (vii) of subsection A of § 22.1-279.3:1, alcohol or drug use or abuse in or related to the school or institution or in connection with any school or institution activity, or information that an individual poses any credible danger of serious bodily injury or death to one or more students, school personnel, or others on school property shall be immune from all civil liability that might otherwise be incurred or imposed as the result of the making of such a report, investigation or disclosure.

(Code 1950, § 8-631.1; 1972, c. 762; 1977, c. 617; 1982, c. 259; 1988, c. 159; 1995, c. 759; 2000, c. 79; 2001, cc. 688, 820; 2003, c. 954; 2013, c. 665.)

Editor's note. - At the direction of the Code Commission, the amendment to this section by Acts 1995, c. 759, was not implemented in light of the decision not to implement the amendment by Acts 1995, c. 759, to § 22.1-280.1 because of a conflict with the amendment to § 22.1-280.1 by Acts 1995, c. 773. The 1995 amendment would have inserted a reference to § 22.1-280.1. The 2000 amendment subsequently added the reference.

The 2000 amendments. - The 2000 amendment by c. 79 inserted "conduct involving bomb threats, firebombs, explosive materials or other similar devices as described in clauses (v) and (vi) of § 22.1-280.1 A, or."

The 2001 amendments. - The 2001 amendments by c. 688 and c. 820 are identical, and substituted " § 22.1-279.3:1" for " § 22.1-280.1."

The 2003 amendments. - The 2003 amendment by c. 954 substituted "clauses (vi) and (vii)" for "clauses (v) and (vi)."

The 2013 amendments. - The 2013 amendment by c. 665, substituted "any person" for "any teacher, instructor, principal, school administrator, school coordinator, guidance counselor or any other professional, administrative or clerical staff member or other personnel of any elementary or secondary school, or institution of higher learning," substituted "subsection A of § 22.1-279.3:1" for " § 22.1-279.3:1 A, or," and inserted "or information that an individual poses any credible danger of serious bodily injury or death to one or more students, school personnel, or others on school property."

Law review. - For 1995 survey of civil practice and procedure, see 29 U. Rich. L. Rev. 897 (1995).

§ 8.01-48. Mitigation in actions against newspapers, etc.

In any civil action against the publisher, owner, editor, reporter or employee of any newspaper, magazine or periodical under § 8.01-45 , or for libel or defamation, because of any article, statement or other matter contained in any such newspaper, magazine or periodical, the defendant, whether punitive damages be sought or not, may introduce in evidence in mitigation of general and punitive damages, or either, but not of actual pecuniary damages, all the circumstances of the publication, including the source of the information, its character as affording reasonable ground of reliance, any prior publication elsewhere of similar purport, the lack of negligence or malice on the part of the defendant, the good faith of the defendant in such publication, or that apology or retraction, if any, was made with reasonable promptness and fairness; provided that the defendant may introduce in evidence only such circumstances and to the extent set forth in his or its grounds of defense.

(Code 1950, § 8-632; 1954, c. 333; 1977, c. 617.)

Law review. - For comment on the constitutional privileges of publishers, see 11 U. Rich. L. Rev. 177 (1976). For survey of Virginia tort law for the year 1975-1976, see 62 Va. L. Rev. 1489 (1976).

Michie's Jurisprudence. - For related discussion, see 12A M.J. Libel and Slander, §§ 15, 24, 34, 43.

CASE NOTES

Purpose of section. - By the express mandate of this section certain evidence in mitigation, not admissible prior to this section where punitive damages were not claimed, was made admissible, and was designed to mitigate general damages to which a plaintiff theretofore had been entitled. News Leader Co. v. Kocen, 173 Va. 95 , 3 S.E.2d 385 (1939) (decided under a prior version of this section).

As a matter of state law the negligence standard should be applicable to media and nonmedia defendants alike. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

The application of this negligence standard is expressly limited, however, to circumstances where the defamatory statement makes substantial danger to reputation apparent. The trial judge shall make such determination as a matter of law. If, on the other hand, no substantial danger to reputation is apparent from the statement in issue, New York Times malice must be established to recover compensatory damages. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

Plaintiff must prove falsity. - In an action brought by a private individual to recover actual, compensatory damages for a defamatory publication, the plaintiff may recover upon proof by a preponderance of the evidence that the publication was false, and that the defendant either knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based. Under this standard, truth no longer is an affirmative defense to be established by the defendant. Instead, the plaintiff must prove falsity, because he is required to establish negligence with respect to such falsity. Such liability may be based upon negligence, whether or not the publication in question relates to a matter of public or general concern. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

Province of jury. - The jury might determine that the evidence introduced under the provisions of this section eliminated all general or compensatory damages not "actual pecuniary," and thus allow plaintiff only nominal damages. The weight to be given the evidence introduced in mitigation is peculiarly the province of the jury, and not of the court. News Leader Co. v. Kocen, 173 Va. 95 , 3 S.E.2d 385 (1939) (decided under prior law).

Instruction on damages. - Obviously it would be error to use the expression "slight actual damages" or "substantial actual damages." As compensatory damages include all damages other than punitive or exemplary, the use of the word "substantial" in an instruction unduly emphasizes the amount of damages which may be awarded. Any modifying word or phrase of the term "actual or compensatory damages" does not clarify the meaning intended to be conveyed and should be avoided. News Leader Co. v. Kocen, 173 Va. 95 , 3 S.E.2d 385 (1939) (decided under prior law).

§ 8.01-49. Defamatory statements in radio and television broadcasts.

The owner, licensee or operator of a radio and television broadcasting station or network of stations, and the agents or employees of any such owner, licensee or operator, shall not be liable for any damages for any defamatory statement published or uttered in or as a part of any such broadcast, by one other than such owner, licensee or operator, or agent or employee thereof, unless it shall be alleged and proved by the complaining party, that such owner, licensee, operator, such agent or employee, failed to exercise due care to prevent the publication or utterance of such statement in such broadcast; provided, however, that in no event shall any owner, licensee or operator, or the agents or employees of any such owner, licensee or operator of such a station or network of stations be held liable for damages for any defamatory statement broadcast over the facilities of such station or network by or on behalf of any candidate for public office.

(Code 1950, § 8-632.1; 1977, c. 617.)

REVISERS' NOTE.

The former § 8-632.1 phrase "visual or sound radio" modifying "broadcasts" has been changed to "radio and television" so as to clearly indicate the section's applicability to all such broadcasts.

________

Law review. - For comment on the constitutional privileges of publishers, see 11 U. Rich. L. Rev. 177 (1976). For note on defamation of public figures, see 39 Wash. & Lee L. Rev. 1327 (1982).

For article on libel and slander in Virginia, see 17 U. Rich. L. Rev. 769 (1983).

§ 8.01-49.1. Liability for defamatory material on the Internet.

  1. No provider or user of an interactive computer service on the Internet shall be treated as the publisher or speaker of any information provided to it by another information content provider. No provider or user of an interactive computer service shall be liable for (i) any action voluntarily taken by it in good faith to restrict access to, or availability of, material that the provider or user considers to be obscene, lewd, lascivious, excessively violent, harassing, or intended to incite hatred on the basis of race, religious conviction, gender, disability, gender identity, sexual orientation, color, or national origin, whether or not such material is constitutionally protected, or (ii) any action taken to enable, or make available to information content providers or others, the technical means to restrict access to information provided by another information content provider.
  2. As used in this section:

    "Disability" means a physical or mental impairment that substantially limits one or more of a person's major life activities.

    "Information content provider" means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

    "Interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

    "Internet" means the international computer network of interoperable packet-switched data networks.

    (2000, c. 930; 2020, cc. 746, 1171.)

Cross references. - For procedure in civil proceeding where it is alleged that an anonymous individual has engaged in Internet communications that are tortious, see § 8.01-407.1 .

Editor's note. - Acts 2020, cc. 746 and 1171, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020, c. 746, cl. 3 provides: "That the provisions of this act shall not become effective unless an appropriation effectuating the purposes of this act is included in a general appropriation act passed in 2020 by the General Assembly that becomes law."

The 2020 amendments. - The 2020 amendments by cc. 746 and 1171 are identical, and in subsection A, inserted "gender, disability, gender identity, sexual orientation" in clause (i); in subsection B, deleted "Definitions" at the beginning and inserted the definition of "Disability".

Law review. - For 2000 survey of Virginia technology law, see 34 U. Rich. L. Rev. 1051. (2000).

Article 5. Death by Wrongful Act.

§ 8.01-50. Action for death by wrongful act; how and when to be brought.

  1. Whenever the death of a person shall be caused by the wrongful act, neglect, or default of any person or corporation, or of any ship or vessel, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action, or to proceed in rem against such ship or vessel or in personam against the owners thereof or those having control of her, and to recover damages in respect thereof, then, and in every such case, the person who, or corporation or ship or vessel which, would have been liable, if death had not ensued, shall be liable to an action for damages, or, if a ship or vessel, to a libel in rem, and her owners or those responsible for her acts or defaults or negligence to a libel in personam, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances, as amount in law to a felony.
  2. Whenever a fetal death, as defined in § 32.1-249, is caused by the wrongful act, neglect, or default of any person, ship, vessel, or corporation, the natural mother of the fetus may bring an action pursuant to this section against such tortfeasor. Nothing in this section shall be construed to create a cause of action for a fetal death against the natural mother of the fetus.
  3. Every such action under subsection A shall be brought by and in the name of the personal representative of such deceased person. Actions for fetal death under subsection B shall be brought by and in the name of the natural mother; provided, however, if the natural mother dies, or is or becomes a person under a disability as defined in § 8.01-2 , such action may be initiated or maintained by the administrator of the natural mother's estate, her guardian, or her personal representative qualified to bring such action. In an action for fetal death under subsection B brought under Chapter 21.1 (§ 8.01-581.1 et seq.) where the wrongful act that resulted in a fetal death also resulted in the death of another fetus of the natural mother or in the death or injury of the natural mother, recovery for all damages sustained as a result of such wrongful act shall not exceed the limitations on the total amount recoverable for a single patient for any injury under § 8.01-581.15 . The person bringing an action under subsection B shall have the power to compromise a claim pursuant to § 8.01-55 and any damages recovered shall be distributed pursuant to this article. Every such action under this section shall be brought within the time limits specified in § 8.01-244 .
  4. If the deceased person was an infant who was in the custody of a parent pursuant to an order of court or written agreement with the other parent, administration shall be granted first to the parent having custody; however, that parent may waive his right to qualify in favor of any other person designated by him. If no such parent or his designee applies for administration within 30 days from the death of the infant, administration shall be granted as in other cases.
  5. For purposes of this section, "natural mother" means the woman carrying the child.

    (Code 1950, § 8-633; 1958, c. 470; 1977, c. 617; 1981, c. 115; 2012, c. 725.)

REVISERS' NOTE.

This proposal combines former §§ 8-633 and 8-634 with the former being subsection (a), and the latter subsection (b). Changes include:

  1. The survival provisions in former § 8-633 have been deleted as unnecessary. See § 8.01-25 .
  2. The statute of limitations provisions in former §§ 8-633 and 8-634 have been removed and placed in § 8.01-244 .
  3. The last paragraph of former §§ 8-633 and 8-634 regarding the statute of limitations in pre-July 1, 1958 actions have been deleted as no longer having any significance.

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Cross references. - As to appointment of administrator for prosecution of action for personal injury or wrongful death against or on behalf of estate of deceased resident or nonresident, see § 64.2-454.

As to when inventory and settlement not required of personal representative, see § 64.2-1301.

For rules of court governing practice and procedure in civil actions, see Rules 3:1 through 3:25.

For rule on substitution of parties, see Rule 3:17.

The 2012 amendments. - The 2012 amendment by c. 725 added subsections B and E; redesignated former subsections B and C as subsections C and D; and rewrote subsection C.

Law review. - For article, "Basic Protection and Future of Negligence Law," see 3 U. Rich. L. Rev. 1 (1968). For survey of Virginia law on torts for the year 1967-1968, see 54 Va. L. Rev. 1649 (1968); for the year 1968-1969, see 55 Va. L. Rev. 1395 (1969). For comment, "Wrongful Death: Assignment of Right to Potential Proceeds," see 26 Wash. & Lee L. Rev. 384 (1969). For survey of Virginia law on torts for the year 1969-1970, see 56 Va. L. Rev. 1419 (1970). For articles on damages recoverable for wrongful death, see 5 U. Rich. L. Rev. 213 (1971) and 12 Wm. & Mary L. Rev. 396 (1970). For survey of Virginia law on torts for the year 1972-1973, see 59 Va. L. Rev. 1590 (1973). For note discussing diversity jurisdiction and wrongful death actions brought by nonresident administrators, see 30 Wash. & Lee L. Rev. 282 (1973). For article, "Telling the Time of Human Death by Statute: An Essential and Progressive Trend," see 31 Wash. & Lee L. Rev. 521 (1974). For note, "Tort Law - Interspousal Immunity - Action for Wrongful Death Against Surviving Spouse Held Maintainable When Such Act Terminates Marriage and Neither Child Nor Grandchild Survives Decedent - Korman v. Carpenter, 216 Va. 86 , 216 S.E.2d 195 (1975)," see 10 U. Rich. L. Rev. 434 (1976). For comment, "The Covenant Not to Sue: Virginia's Effort to Bury the Common Law Rule Regarding the Release of Joint Tortfeasors," see 14 U. Rich. L. Rev. 809 (1980). For survey of Virginia law on practice and pleading for the year 1978-1979, see 66 Va. L. Rev. 343 (1980). For note discussing wrongful death of child conceived by in vitro fertilization, see 17 U. Rich. L. Rev. 311 (1983).

For article, "Civil Rights and 'Personal Injuries': Virginia's Statute of Limitations for Section 1983 Suits," see 26 Wm. & Mary L. Rev. 199 (1985). For 1987 survey of Virginia civil procedure and practice, see 21 U. Rich. L. Rev. 667 (1987).

For note, "Recovery for the Wrongful Death of a Fetus," see 25 U. Rich. L. Rev. 391 (1991).

For a review of damages in medical malpractice in Virginia, see 33 U. Rich. L. Rev. 919 (1999).

For 2006 survey article, "Medical Malpractice Law," see 41 U. Rich. L. Rev. 231 (2006).

For 2007 annual survey article, "Civil Practice and Procedure," see 42 U. Rich. L. Rev. 229 (2007).

For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).

For annual survey essay, "Election of Remedies in the Twenty-First Century: Centra Health, Inc. v. Mullins," 44 U. Rich. L. Rev. 149 (2009).

For essay "Bifurcation of Civil Trials," see 45 U. Rich. L. Rev. 1 (2010).

For note, "The Vote From Beyond the Grave," see 51 Wm. and Mary L. Rev. 1583 (2010).

For essay, "How (Not) to Talk About Abortion," see 47 U. Rich. L. Rev. 425 (2012).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abatement, Survival and Revival, §§ 10, 30; 1A M.J. Actions, § 25; 1A M.J. Admiralty, §§ 10, 23; 5C M.J. Death by Wrongful Act, §§ 3 - 5, 8 - 11; 8A M.J. Executors and Administrators, § 347; 14B M.J. Prisons and Prisoners, § 2.

CASE NOTES

I. DECISIONS UNDER CURRENT LAW.
A. GENERAL CONSIDERATION.

Purpose of statute. - The intent of the wrongful death statute is not to accumulate an estate for the decedent but to compensate for a loss suffered by those entitled to recover. Cassady v. Martin, 220 Va. 1093 , 266 S.E.2d 104 (1980).

The object of the wrongful death statute is to compensate these beneficiaries for their loss occasioned by the decedent's death. The words "damage" and "loss" clearly indicate a damage and loss sustained by someone, and the loss means the loss to the statutory beneficiary in this case. Cassady v. Martin, 220 Va. 1093 , 266 S.E.2d 104 (1980).

This section is not penal or exemplary but remedial. Hewitt v. Firestone Tire & Rubber Co., 490 F. Supp. 1358 (E.D. Va. 1980).

And being remedial, this statute is construed broadly. Hewitt v. Firestone Tire & Rubber Co., 490 F. Supp. 1358 (E.D. Va. 1980).

Punitive damages not awarded if offender is dead. - Where the offender is dead at the time of trial, punitive or exemplary damages may not be awarded. The purpose of punitive damages is to punish the offender, not to compensate the victim. Tarbrake v. Sharp, 894 F. Supp. 270 (E.D. Va. 1995).

Where the alleged offender and the plaintiff were both killed in an automobile accident, an award of punitive damages will not serve its intended purpose of punishing the tortfeasor. Tarbrake v. Sharp, 894 F. Supp. 270 (E.D. Va. 1995).

Sections 8.01-21 , 8.01-25 , 8.01-50 , and 8.01-56 compared. - The requirements of the survival and wrongful death statutes, §§ 8.01-25 , 8.01-50 and 8.01-56 , apply when the death occurs before a final verdict, whereas § 8.01-21 applies where the death occurs after the verdict. Boyd v. Bulala, 647 F. Supp. 781 (W.D. Va. 1986), aff'd in part, rev'd in part, 877 F.2d 1191 (4th Cir. 1989); Bulala v. Boyd, 239 Va. 218 , 389 S.E.2d 670 (1990).

Sections were enacted to extend application of this section. - Sections 8.01-25 and 8.01-56 are not in conflict with § 8.01-21 . They were enacted to extend the application of this section, the wrongful death statute, those situations not covered by the original Lord Campbell's Act, in which a plaintiff who has filed an action for personal injuries, dies of those injuries before a verdict is returned. It was unnecessary at common law to amend, revive, or convert the action of the party who survived the return of a verdict, and it is equally unnecessary under the present statutory scheme. Bulala v. Boyd, 239 Va. 218 , 389 S.E.2d 670 (1990).

Unborn child is not a "person" within the meaning of the wrongful death statute. Modaber v. Kelley, 232 Va. 60 , 348 S.E.2d 233 (1986).

Negligence in womb when child born alive and later dies. - An action for a child's wrongful death could be maintained against a tortfeasor whose negligence occurred when the decedent was in the mother's womb, where the child was born alive but died the same evening, and its premature delivery and death were proximately caused by the tortfeasor's negligence. Kalafut v. Gruver, 239 Va. 278 , 389 S.E.2d 681 (1990).

Debtor's right to proceeds of wrongful death action is a property right; as a property right, it is subject to creditor process, and is not exemptable from the debtor's estate. In re Tignor, 21 Bankr. 219 (Bankr. E.D. Va. 1982), rev'd on other grounds sub nom. Tignor v. Parkinson, 729 F.2d 977 (4th Cir. 1984).

Decedent's suicide barred recovery for wrongful death action by personal representative. - That the decedent did not have a full appreciation of the injury she would incur from her actions was of no consequence; decedent's participation in an unlawful and immoral act by committing suicide barred recovery for wrongful death by her personal representative. Hill v. Nicodemus, 755 F. Supp. 692 (W.D. Va. 1991), aff'd, 979 F.2d 987 (4th Cir. 1992).

Failure to shock fair-minded persons. - Assistant director was entitled to summary judgment on the gross negligence claim because the mother fell far short of creating a triable issue as to whether the director's actions, or alleged lack thereof, would shock fair-minded persons; the mother failed to show sufficient evidence that the director was deliberately indifferent to or tacitly authorized widespread abuses of patient supervision. Wilkins v. Montgomery, 751 F.3d 214, 2014 U.S. App. LEXIS 8412 (4th Cir. 2014).

Action fails where officers acted objectively reasonably. - Survivor's wrongful death action failed where a decedent's sister could not have proved negligent, intentional, or reckless conduct because the court previously found that police officers did not falsely arrest the decedent or use excessive force against him, but that they acted objectively reasonably. Waller v. City of Danville, - F. Supp. 2d - , 2005 U.S. Dist. LEXIS 34584 (W.D. Va. Dec. 12, 2005).

Tolling provision of the Virginia Medical Malpractice Act, former § 8.01-581.9 , which tolled the statute of limitations for 120 days from the giving of notice of 60 days following issuance of an opinion by the medical review panel, applied to the two year limitations contained in the Virginia Wrongful Death Act, this section and subsection B of § 8.01-244 . Wertz v. Grubbs, 245 Va. 67 , 425 S.E.2d 500 (1993).

Accrual when injury known and not when injury would cause death. - Deceased's claim for the personal injury that allegedly caused her death accrued April 8, 1984, when she wrote in her notes that "on June 1 '83, I had a physical . . . . In retrospect, a mammogram should have been ordered because of previous breast biopsies, family history, and post-menopausal age 59," even though she did not know at that time she was going to die; when she died on April 9, 1986, the two-year statute of limitations of Federal Tort Claims Act had run on any claim based on negligence in failing to make a timely diagnosis, and thus, wrongful death action was properly dismissed as time-barred. Miller v. United States, 932 F.2d 301 (4th Cir. 1991).

Statute of limitations was not tolled by continuous treatment theory. - In action for wrongful death due to medical malpractice by government doctors in failing to order a mammogram under Federal Tort Claims Act, 28 U.S.C. § 1346, statute of limitation on action was not tolled by under continuous treatment theory since treatment received after deceased discovered that she should have been ordered to have a mammogram had nothing to do with the ordering of a mammogram, and the doctors who administered such treatment were not acting under the advice or direction of the doctor who failed to order the mammogram. Miller v. United States, 932 F.2d 301 (4th Cir. 1991).

Sovereign immunity as a defense. - Court declined to dismiss, on grounds of sovereign immunity, a medical malpractice claim and wrongful death claim against a prison doctor, because the parties had submitted very little information as to the nature of the employment relationship between the prison doctor and the Commonwealth of Virginia. Simmons v. Johnson, - F. Supp. 2d - , 2005 U.S. Dist. LEXIS 24257 (W.D. Va. Oct. 20, 2005), transferred, 2005 U.S. Dist. LEXIS 29546 (W.D. Va. Nov. 22, 2005).

Applicability of other jurisdiction's wrongful death statute. - Doctrine of lex loci delicti was applicable to substantive issues in action filed in Virginia as a result of an airplane crash in Maryland and because there was a dispute regarding wrongful death statutes which was a substantive issue because Maryland's wrongful death statute limits the recovery of parents for the death of an adult child to pecuniary loss, while Virginia's wrongful death statute contains no such limitation, Maryland law was therefore applicable. Spring v. United States, 833 F. Supp. 575 (E.D. Va. 1993).

No election of remedy. - Circuit court erred in granting the motions to dismiss on the grounds that plaintiff elected a remedy when he settled the Kentucky personal injury action against the Kentucky medical providers, and that plaintiff's wrongful death action against the Virginia medical providers was barred by this statute because there was no language in this statute that would prohibit the filing of a wrongful death action in Virginia based on the settlement of a personal injury claim in another state; and Kentucky law allowed the filing of a personal injury claim in addition to a wrongful death claim for the same injury. Green v. Diagnostic Imaging Assocs., P.C., 843 S.E.2d 371, 2020 Va. LEXIS 61 (June 4, 2020).

Inclusion in court order. - Nothing in the language of the Wrongful Death Act, §§ 8.01-50 through 8.01-56 , precludes the inclusion in a court's order of the affirmative relief the parties have agreed to as part of their settlement of a Wrongful Death Action. Fisher v. Salute, 51 Va. App. 293, 657 S.E.2d 169, 2008 Va. App. LEXIS 99 (2008).

Applied in Vicars v. Mullins, 227 Va. 432 , 318 S.E.2d 377 (1984); Lucas v. HCMF Corp., 238 Va. 446 , 384 S.E.2d 92 (1989); Riddle v. Shell Oil Co., 764 F. Supp. 418 (W.D. Va. 1990); Rice v. Charles, 260 Va. 157 , 532 S.E.2d 318 (2000); Duncan v. Duncan (In re Duncan), 448 F.3d 725, 2006 U.S. App. LEXIS 12818 (4th Cir. 2006); Hawthorne v. VanMarter, 279 Va. 566 , 692 S.E.2d 226, 2010 Va. LEXIS 54 (2010); Conger v. Barrett, 280 Va. 627 , 702 S.E.2d 117, 2010 Va. LEXIS 261 (2010).

B. RIGHT OF ACTION.

A claim under this section is not extinguished by simultaneous assertion of a claim under 42 U.S.C. § 1983. Miltier v. Beorn, 696 F. Supp. 1086 (E.D. Va. 1988).

The structural relationship between § 8.01-25 and this section shows that under Virginia law, a wrongful death claim can peaceably coexist with a 42 U.S.C. § 1983 claim. Miltier v. Beorn, 696 F. Supp. 1086 (E.D. Va. 1988).

Uninsured motorist recovery barred by exclusive remedy clause of workmen's compensation law. - Virginia law does not permit recovery by an insured's estate under the uninsured motorist provision of the insured's policy (paid for by the insured), where the insured was killed in a work-related motor vehicle accident and where the employer/vehicle owner and co-employee/vehicle operator both had insurance, but where the exclusive remedy clause of the Virginia Workmen's Compensation Act bars recovery under those other policies. Aetna Cas. & Sur. Co. v. Dodson, 235 Va. 346 , 367 S.E.2d 505 (1988).

A wrongful death action is a right of action to enforce a cause of action, both created by statute in derogation of the common law. Horn v. Abernathy, 231 Va. 228 , 343 S.E.2d 318 (1986).

Section does not create new cause of action. - This section does not create a new cause of action, but only a right of action in a personal representative to enforce the decedent's claim for any personal injury that caused death; for this reason, a wrongful death action is necessarily time-barred, if at the time of the decedent's death, her personal injury claim based on the tortious conduct that ultimately caused death is already time-barred. Miller v. United States, 932 F.2d 301 (4th Cir. 1991).

This section confers on the decedent's personal representative a new and original right of action the object of which is to compensate the beneficiaries for their loss. In re Tignor, 21 Bankr. 219 (Bankr. E.D. Va. 1982), rev'd on other grounds sub nom. Tignor v. Parkinson, 729 F.2d 977 (4th Cir. 1984).

Subsection B vests the right of action in the decedent's personal representative. The right of action, however, is not a right to enforce a cause of action personal to the personal representative. As the party-plaintiff, he is merely a surrogate for the beneficiaries of the cause of action named in § 8.01-53 . Horn v. Abernathy, 231 Va. 228 , 343 S.E.2d 318 (1986).

Sole surviving co-administrator may bring wrongful death action. - Sole surviving co-administrator of an intestate decedent's estate was entitled to maintain a wrongful death action because, under the doctrine of survivorship, the co-administrator, as the sole remaining co-administrator, had the authority to maintain the wrongful death action. Bartee v. Vitocruz, 288 Va. 106 , 758 S.E.2d 549 (2014).

Choice of recovery theory in malpractice action. - Although the administrators and the health care provider agreed that the administrators filing a medical malpractice action against the health care providers had to elect between recovering under their survival action claim pursuant to § 8.01-25 and wrongful death claim under § 8.01-50 , which position also was supported under § 8.01-56 , the administrators were entitled to present their claim to the jury and have the jury decide the issue of causation before the administrators had to make that election. As a result, the administrators could recover monetary damages awarded by the jury involving the survival act claim, especially since the verdict awarding no damages on the wrongful death claim understood it could not award damages under both theories. Centra Health, Inc. v. Mullins, 277 Va. 59 , 670 S.E.2d 708, 2009 Va. LEXIS 3 (2009).

No action for death of stillborn infant. - A stillborn infant is not a person within the meaning of the wrongful death statute. No action will lie for the death of a stillborn infant. Myrick v. United States, 723 F.2d 1158 (4th Cir. 1983).

Injury to an unborn child constitutes injury to the mother and she may recover for such physical injury and mental suffering associated with a stillbirth. She is not entitled, however, to damages ordinarily recoverable in a wrongful death action. For example, the mother may not recover for anticipated loss of the child's society, companionship, comfort, or guidance. She may not be compensated for an expected loss of income of the child or for services, protection, care, or assistance expected to be provided by the child had he lived. Modaber v. Kelley, 232 Va. 60 , 348 S.E.2d 233 (1986).

Recovery barred by exclusivity provision in Workers' Compensation Law claim. - Had a widow's husband survived his work-related accident, he could not have sued his employer or its subcontractors due to workers' compensation exclusivity under subsection A of § 65.2-307; therefore, pursuant to subsection A of § 8.01-50 , the widow could not maintain a wrongful death action against them. Giordano v. McBar Indus., 284 Va. 259 , 729 S.E.2d 130 (2012).

Intoxication, voluntarily induced, is not the type of physical incapacity which will excuse contributory negligence via application of the last clear chance doctrine, when such conduct does not otherwise excuse fault; therefore, plaintiff, whose decedent was guilty of contributory negligence as a matter of law in lying unconscious or asleep in the middle of interstate due to his voluntary intoxication, was not entitled to rely on the last clear chance doctrine as a basis for recovery against defendant truck driver. Pack v. Doe, 236 Va. 323 , 374 S.E.2d 22 (1988).

C. ACTION BY PERSONAL REPRESENTATIVE.

Administratrix may bring action under 42 U.S.C. § 1983. - A cause of action under 42 U.S.C. § 1983, alleging that actions by defendants which resulted in decedent's death violated the decedent's civil rights, survived decedent's death, such that a duly qualified administratrix was entitled to pursue the decedent's claims against defendants. O'Connor v. Several Unknown Correctional Officers, 523 F. Supp. 1345 (E.D. Va. 1981).

And damages are recoverable for deprivation of decedent's civil rights. - A decedent's claims under 42 U.S.C. § 1983, based on violations of his civil rights which caused his death, survive him, and his duly qualified administratrix may be awarded compensatory and punitive damages for the deprivation if she succeeds on the merits of the case, since allowing the administratrix to obtain compensation only for whatever loss was suffered by statutory beneficiaries under the Virginia wrongful death statute and excluding any punitive award would be inconsistent with the compensatory and deterrent policies behind 42 U.S.C. § 1983. O'Connor v. Several Unknown Correctional Officers, 523 F. Supp. 1345 (E.D. Va. 1981).

Surviving spouse not qualified as personal representative. - When a surviving wife was not qualified as a personal representative in any state when the wife filed a wrongful death suit in Virginia under § 26-59 and subsection B of § 8.01-50 , the wife lacked standing to maintain the action; therefore, the statute of limitations was not tolled by subsection B of § 8.01-244 and the action was properly dismissed. Fowler v. Winchester Med. Ctr., Inc., 266 Va. 131 , 580 S.E.2d 816, 2003 Va. LEXIS 68 (2003).

As a decedent's widow had not qualified as the administratrix of his estate when she filed a wrongful death suit, the action was nullity; therefore, she was not entitled to a nonsuit under § 8.01-380 . Johnston Mem. Hosp. v. Bazemore, 277 Va. 308 , 672 S.E.2d 858, 2009 Va. LEXIS 32 (2009).

Estate via personal representative is proper plaintiff. - Estate of a U.S. AID worker who was killed in the 1983 U.S. Embassy bombing in Beirut, Lebanon, was the proper plaintiff to bring a wrongful-death action against defendants, the Islamic Republic of Iran and its Ministry of Intelligence and Security, under Virginia law. Dammarell v. Islamic Republic of Iran, 404 F. Supp. 2d 261, 2005 U.S. Dist. LEXIS 32618 (D.D.C. Dec. 14, 2005).

Administratrix proper party. - Where an administratrix sued an assisted living facility under the Virginia Death by Wrongful Act statute, § 8.01-50 , alleging that the facility's negligence caused her mother's injury and death, the estate was not bound by an arbitration clause that was in a residency agreement, of which the mother was unaware. Although the administratrix signed her mother's name to the agreement, agency was not established because she did not consent to her daughter's action and there was no legal documentation granting the daughter power of attorney or authority to bind the mother to all of the agreement's elements. Giordano v. Atria Assisted Living, Va. Beach, LLC, 429 F. Supp. 2d 732, 2006 U.S. Dist. LEXIS 24451 (E.D. Va. 2006).

Sole appointment to bring wrongful death action does not confer standing to bring survivor action. - Estate administrator solely appointed to bring a wrongful death action under § 8.01-50 lacked standing to assert survival claims on behalf of the estate, although she may not have received the qualification authority that she intended, because the responsibility for the mistake was with the administrator and not with the clerk. Antisdel v. Ashby, 279 Va. 42 , 688 S.E.2d 163 (2010).

Joinder of co-administrator. - Section § 8.01-5 permitted the joinder of a second co-administrator to a wrongful death action under the Virginia Wrongful Death Act, § 8.01-50 , because the first co-administrator was already a party plaintiff; the claims in the suit did not change as a result of the joinder; and the first co-administrator's initial filing, without the second co-administrator, of the wrongful death claim tolled the statute of limitations for that claim under subsection B of § 8.01-244 . Addison v. Jurgelsky, 281 Va. 205 , 704 S.E.2d 402, 2011 Va. LEXIS 16 (2011).

II. DECISIONS UNDER PRIOR LAW.
A. GENERAL CONSIDERATION.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

Legislative history. - At common law the right of action to recover damages for "wrongful death" was unknown. This situation existed in Virginia until January 14, 1871, when the original act giving such a right to a personal representative was enacted. The prototype of this act is the English statute known as "Lord Campbell's Act," which was passed in 1846. VEPCO v. Decatur, 173 Va. 153 , 3 S.E.2d 172 (1939).

The wrongful death statutes were originally adopted by the General Assembly in 1871 and modeled after Lord Campbell's Act passed by the English Parliament in 1846. Lawrence v. Craven Tire Co., 210 Va. 138 , 169 S.E.2d 440 (1969), commented on in 4 U. Rich. L. Rev. 322 (1970).

At common law no civil action was maintainable against a person for the wrongful death of another. Lawrence v. Craven Tire Co., 210 Va. 138 , 169 S.E.2d 440 (1969), commented on in 4 U. Rich. L. Rev. 322 (1970).

Purpose of statute. - This section and § 8.01-55 intend to withdraw from the wrongdoer the immunity from civil liability which the rule of the common law afforded him, and to provide for the recovery of such damages notwithstanding the death of the injured person. In so doing, however, it was plainly not the intention to continue or cause to survive his right of action for the injury, but to substitute for it and confer upon his personal representative a new and original right of action. Anderson v. Hygeia Hotel Co., 92 Va. 687 , 24 S.E. 269 (1896); Grady v. Irvine, 254 F.2d 224 (4th Cir.), cert. denied, 358 U.S. 819, 79 S. Ct. 30, 3 L. Ed. 2d 60 (1958); Wilson v. Whittaker, 207 Va. 1032 , 154 S.E.2d 124 (1967).

The object of the statute was to give a right of action where none existed at common law, and to prevent an action from abating which would otherwise have abated, but not to allow two actions against the same defendant for the same injury. Brammer's Adm'r v. Norfolk & W. Ry., 107 Va. 206 , 57 S.E. 593 (1907).

The primary object of this section and §§ 8.01-53 and 8.01-54 is to compensate the family of deceased and not to benefit his creditors. Withrow v. Edwards, 181 Va. 344 , 25 S.E.2d 343, rev'd on other grounds, 181 Va. 592 , 25 S.E.2d 899, cert. denied, 320 U.S. 761, 64 S. Ct. 70, 88 L. Ed. 453 (1943).

Rules of statutory construction are not applicable to this section and §§ 8.01-51 through 8.01-56 as they are so plain and free from doubt. Porter v. VEPCO, 183 Va. 108 , 31 S.E.2d 337 (1944).

This section and §§ 8.01-51 through 8.01-56 have no extraterritorial effect. Withrow v. Edwards, 181 Va. 344 , 25 S.E.2d 343, rev'd on other grounds, 181 Va. 592 , 25 S.E.2d 899, cert. denied, 320 U.S. 761, 64 S. Ct. 70, 88 L. Ed. 453 (1943); Sherley v. Lotz, 200 Va. 173 , 104 S.E.2d 795 (1958).

Recoveries under this article and § 8.01-25 distinguished. - The limit of recovery in an action under this article is different from that in the action preserved by § 8.01-25 . In one, the amount of the recovery is limited by statute, is for the benefit of certain designated beneficiaries, and is free from debts and liabilities. In the other, the limit is the amount of damages that can be proved, is an asset of the decedent's estate, and is subject to the payment of his debts. Bagley v. Weaver, 211 Va. 779 , 180 S.E.2d 686 (1971).

For Fourth Circuit case, arising under North Carolina law, holding that the citizenship of the beneficiaries, rather than that of the administrator, is controlling for diversity purposes, see Miller v. Perry, 456 F.2d 63 (4th Cir. 1972).

B. RIGHT OF ACTION.
1. IN GENERAL.

Requirements for maintenance of wrongful death action. - Since the wrongful death act was adopted in Virginia nearly a century ago, it has required for maintenance of a wrongful death action (1) the death of a "person" caused by a wrongful act, neglect, or default, etc., and (2) that the act, neglect or default be "such as would, if death had not ensued, have entitled the party injured to maintain an action" for personal injuries. Lawrence v. Craven Tire Co., 210 Va. 138 , 169 S.E.2d 440 (1969), commented on in 4 U. Rich. L. Rev. 322 (1970).

The right of action for damages for personal injuries, including punitive damages, if any, expires upon the death of the injured person. The death by wrongful act statute does not cause to survive this right of action, but it creates in the decedent's personal representative a new right of action to compensate decedent's statutory beneficiaries for their loss. Its purpose was not to punish the wrongdoer. Wilson v. Whittaker, 207 Va. 1032 , 154 S.E.2d 124 (1967).

"Cause of action" and "right of action" distinguished. - The Supreme Court of Virginia construes its wrongful death statute as creating no new "cause of action" but a "right of action" where no right before existed. The "cause of action" is said to be complete and accrued the moment the tort is committed, but the "right of action" for wrongful death does not arise during the continued life of the injured person, nor does the injured person's "right of action" for personal injury survive his death, if death results from the injury. Grady v. Irvine, 254 F.2d 224 (4th Cir.), cert. denied, 358 U.S. 819, 79 S. Ct. 30, 3 L. Ed. 2d 60 (1958).

Cause of action the same regardless of nature of right. - Whether the right of action given the personal representative be regarded as a survival of the right of action of his decedent, as a revival of the right, as a substituted right, or as a new right, the cause of action is the same, that is, the wrongful injury to the decedent, the wrong which entitled him to maintain an action, if death had not ensued. Payne v. Piedmont Aviation, Inc., 294 F. Supp. 216 (E.D. Va. 1968).

But the right of action is dependent upon right of deceased. - Under the statute the cause of action of the injured party, while alive, is the same cause of action that passes to the personal representative, and the right of the personal representative to recover for the death of his decedent stands upon no higher ground than that occupied by the injured party while living. The statute authorizes an action for wrongful death upon the condition that the facts are such that the deceased might have maintained the action had he lived, for the injury resulting from the same act or omission. VEPCO v. Decatur, 173 Va. 153 , 3 S.E.2d 172 (1939).

And the right of action must exist at decedent's death. - Where a statute in effect gives a remedy to recover damages where the death of a person is caused by the negligent or wrongful act of another, such remedy depends upon the existence in the decedent, at the time of death, of a right of action to recover damages for such injury. Payne v. Piedmont Aviation, Inc., 294 F. Supp. 216 (E.D. Va. 1968).

Where the action for death is under a survival statute or is dependent on the existence of a cause of action in favor of decedent at the time of his death, the action is barred if at the time of death the applicable statute had run against decedent's right of action. Payne v. Piedmont Aviation, Inc., 294 F. Supp. 216 (E.D. Va. 1968).

If the right of action of the injured person has expired at the date of his death, there is no right of action left which the personal representative can exercise. Payne v. Piedmont Aviation, Inc., 294 F. Supp. 216 (E.D. Va. 1968).

Section continues, transmits or substitutes right of action of deceased. - While this section, strictly speaking, may not create a new cause of action, it continues, transmits or substitutes the right, with certain limitations stated in the cognate statutes, to bring the action which decedent had at the time of his death. Sherley v. Lotz, 200 Va. 173 , 104 S.E.2d 795 (1958); Lawrence v. Craven Tire Co., 210 Va. 138 , 169 S.E.2d 440 (1969), commented on in 4 U. Rich. L. Rev. 322 (1970).

This section creates no new cause of action, but simply continues, transmits, or substitutes the right to sue which the decedent had until his death, the effect of which is to permit the personal representative to pick up the abated right of the deceased and prosecute it for the benefit of decedent's beneficiary. Payne v. Piedmont Aviation, Inc., 294 F. Supp. 216 (E.D. Va. 1968).

Only one recovery can be had. - Whether an action be brought by the injured party in his lifetime and revived after his death, or a new action be brought by the personal representative within the statutory period, as provided in the statute, only one recovery can be had, and that for the benefit of the next of kin named in the statute, where any such exists. Brammer's Adm'r v. Norfolk & W. Ry., 107 Va. 206 , 57 S.E. 593 (1907).

This is true when action brought by decedent is revived. - If an action brought by the injured party in his lifetime be revived in the name of his personal representative after his death, and proceed to final judgment, it is a bar to any other action to recover damages for the same injury. Brammer's Adm'r v. Norfolk & W. Ry., 107 Va. 206 , 57 S.E. 593 (1907).

Section has no effect on rule as to loss of minor's services. - The common-law right of a personal representative or parent to recover for losses between the time of injury and the resulting death of a minor, including medical expenses and losses occasioned by his inability to attend to business during that time, is not affected by this section. Stevenson v. Ritter Lumber Co., 108 Va. 575 , 62 S.E. 351 (1908).

Action does not abate upon death of class beneficiaries. - Under the wrongful death statute the cause of action is conferred upon decedent's personal representative and does not abate upon the death of class beneficiaries. Johns v. Blue Ridge Transf. Co., 199 Va. 63 , 97 S.E.2d 723 (1957).

Infancy of beneficiary of action does not toll limitation period. - The statute of limitations for wrongful death actions was not tolled by reason of infancy of the beneficiary of the wrongful death action, since the infant's disability could not prevent the timely institution of the action in view of the fact that wrongful death actions may be brought only by and in the name of the personal representative of the deceased. Beverage v. Harvey, 602 F.2d 657 (4th Cir. 1979).

Judgment binding in subsequent action in federal court. - A final judgment for defendant in a state wrongful death action is binding on the beneficiaries as to their individual claims for personal injuries asserted in a subsequent action against the same defendant in a federal court. Taylor v. Anderson, 303 F.2d 546 (4th Cir. 1962).

2. CONFLICT OF LAWS.

Law of state where injury occurred governs rights under section. - All matters pertaining to the substantive right of recovery under this section, including the right to recover, the nature of the right, and the party in whom it is vested, are governed by the law of the state where the injury resulting in death occurred. Betts v. Southern Ry., 71 F.2d 787 (4th Cir. 1934).

Where an injury has been inflicted in a sister state the laws of that state govern as to the extent of the remedy. Dowell v. Cox, 108 Va. 460 , 62 S.E. 272 (1908).

Where the accident occurred in Maryland, any right of action for the resulting death arises out of the law of Maryland and not out of that of Virginia. Maryland ex rel. Joynes v. Coard, 175 Va. 571 , 9 S.E.2d 454 (1940).

But the acceptance of compensation under the law of one state cannot affect the right to pursue a remedy against a third person under the wrongful death statute of another, unless there is something in the law of the latter which so provides. Betts v. Southern Ry., 71 F.2d 787 (4th Cir. 1934).

3. WHO MAY SUE; DEFENSES.

Negligent plaintiff cannot recover if he would benefit. - Plaintiff could not recover in an action under this section for the negligent killing of his infant son, if he proximately contributed to the accident and would benefit from a recovery. Ratcliffe v. McDonald's Adm'r, 123 Va. 781 , 97 S.E. 307 (1918)See; Richmond, F. & P.R.R. v. Martin, 102 Va. 201 , 45 S.E. 894 (1903).

But contributory negligence of one party does not bar whole recovery. City of Danville v. Howard, 156 Va. 32 , 157 S.E. 733 (1931).

A child en ventre sa mere cannot maintain a common-law action for personal injuries. Lawrence v. Craven Tire Co., 210 Va. 138 , 169 S.E.2d 440 (1969), commented on in 4 U. Rich. L. Rev. 322 (1970).

No action for death of stillborn child. - The Virginia wrongful death statute as written does not provide an action for the wrongful death of a stillborn child. Lawrence v. Craven Tire Co., 210 Va. 138 , 169 S.E.2d 440 (1969)commented on in 4 U. Rich. L. Rev. 322 (1970).

Interspousal immunity lost at death. - Reason for interspousal immunity is to foster a harmonious and conjugal relationship. Obviously, the reason for the rule is lost upon the death of one of the parties for there is no longer a marriage to be saved or a union to be preserved. Korman v. Carpenter, 216 Va. 86 , 216 S.E.2d 195 (1975), commented on in 4 U. Rich. L. Rev. 322 (1976).

Action against surviving spouse. - An action for wrongful death may be maintained, predicated upon injuries to one spouse during marriage arising out of a wrongful act by the other spouse, when such an act results in the termination of the marriage by death, and when the deceased spouse is survived by no living child or grandchild. Korman v. Carpenter, 216 Va. 86 , 216 S.E.2d 195 (1975), commented on in 4 U. Rich. L. Rev. 322 (1976).

This section affords a deceased wife's personal representative no right of action unless the right existed immediately before her death. Surratt v. Thompson, 212 Va. 191 , 183 S.E.2d 200 (1971).

Resident alien friends are entitled to the benefits and remedies afforded by this section. Hence, a resident alien widow, residing in another state, may maintain on behalf of herself and children an action for the wrongful death of her husband. Pocahontas Collieries Co. v. Rukas, 104 Va. 278 , 51 S.E. 449 (1905).

The action for death by the wrongful act or neglect of another given by this section may be maintained for the benefit of alien relatives resident in a foreign country, although they are not expressly named in the statute. Lowmoor Iron Co. v. La Bianca, 106 Va. 83 , 55 S.E. 532 (1906).

Consent which would bar recovery by decedent bars recovery under this section. - If the consent of decedent to the commission of an immoral or illegal act would have been a bar to decedent's right to recover had she survived, such consent bars recovery in an action by her administrator for her wrongful death under the provisions of this section. Miller v. Bennett, 190 Va. 162 , 56 S.E.2d 217 (1949).

Consent of decedent to illegal abortion. - Consent of a mature married woman to an attempt to produce an illegal abortion, resulting in death, bars recovery under this section in an action by her administrator against the party attempting to procure the abortion. Miller v. Bennett, 190 Va. 162 , 56 S.E.2d 217 (1949).

Spouse who deserted decedent and lived in adultery is not barred. - There is no provision in our statutes barring the right of a spouse who has deserted the decedent and lived in adultery from sharing in a recovery for wrongful death; therefore he or she is not so barred. Matthews v. Hicks, 197 Va. 112 , 87 S.E.2d 629 (1955).

4. WHO MAY BE SUED.

Committee of convict can be sued. - A right of action, conferred by this section, may be brought against the committee of a convict. Merchant's Adm'r v. Shry, 116 Va. 437 , 82 S.E. 106 (1914).

5. EVIDENCE.

Measure of damages. - In an action for death by wrongful act, the measure of damages is the pecuniary loss, if any, sustained by the beneficiaries; compensation for their loss of the decedent's care, attention and society, and for their solace and comfort for the sorrow and suffering occasioned by the death of a decedent. Evidence regarding the magnitude and seriousness of the injuries of a decedent, the extent of the mutilation of his body, and other circumstances likely to inflame or prejudice a jury, or invite its sympathy, should not be admitted. Where, as in this case, evidence of this type is admissible here for the reason that it has relevancy in establishing the identity of the driver, in the accident resulting in death, it should be restricted to a showing that the decedent's injuries were such as could have resulted in the deposit of hair, blood and flesh found in the vehicle and testified to by witnesses. Breeding v. Johnson, 208 Va. 652 , 159 S.E.2d 836 (1968).

Evidence as to widow and children of deceased. - In an action under the statute by the administrator of a party killed upon a railroad track against the company, the plaintiff may upon the trial, and before the jury has rendered a verdict, introduce evidence to prove that the deceased left a widow and children, and the number and ages of the children. B & O R.R. v. Sherman's Adm'r, 71 Va. (30 Gratt.) 602 (1878).

Evidence of the physical condition of one or more of the beneficiaries is immaterial to the question of liability or the quantum of the damages. Crawford v. Hite, 176 Va. 69 , 10 S.E.2d 561 (1940).

Evidence that deceased was heavy drinker and that family relations were troubled. - Evidence having been placed before the jury by counsel for the administratrix tending to show deceased to have been a man of sober habits and a devoted and hardworking father, it was error to refuse cross-examination to show he was a heavy drinker and that the family relations were troubled. Basham v. Terry, 199 Va. 817 , 102 S.E.2d 285 (1958), commented on in 4 U. Rich. L. Rev. 322 (1959).

Warrants sworn out against deceased by wife and daughter. - Copies of warrants of arrest sworn out against decedent by his wife and daughter four and five years before his death would have been admissible in mitigation of damages allowable for loss of "care, attention and society" by reason of his death. Such evidence would not have been too remote if so offered in proper form. But the offer of testimony as to the warrants was properly excluded, this not being the best evidence. Basham v. Terry, 199 Va. 817 , 102 S.E.2d 285 (1958), commented on in 4 U. Rich. L. Rev. 322 (1959).

Moral delinquencies. - Evidence offered by the defendants of young girl's moral delinquencies held not relevant on the amount of damages which the jury might award to her parents and other members of her family for the loss of her society and for the sorrow, suffering and mental anguish occasioned to them by her death. Gamble v. Hill, 208 Va. 171 , 156 S.E.2d 888 (1967).

C. ACTIONS AGAINST SHIPS.

Right enforced in jurisdiction where injury occurred. - The lien created by this section, which provides that a ship or vessel, which would have been liable if death had not ensued, shall be liable to an action for damages or to a libel in rem, may be enforced by a suit in rem in a court of admiralty, where the injury occurred at a place within the maritime jurisdiction. The Anglo-Patagonian, 235 F. 92 (4th Cir.), cert. denied, 242 U.S. 636, 37 S. Ct. 19, 61 L. Ed. 539 (1916).

Fact that pilot is in charge does not absolve ship for liability. - At the time of the collision for which she was in fault, the fact that a ship was in charge of a compulsory pilot does not absolve her from liability for the death of persons caused by the collision under this section. Indra Line, Ltd. v. Palmetto Phosphate Co., 239 F. 94 (4th Cir. 1916).

The remedy in rem is in the nature of an admiralty lien and can be enforced in a federal court which has admiralty jurisdiction, and only in a federal court. Continental Cas. Co. v. The Benny Skou, 200 F.2d 246 (4th Cir. 1952), cert. denied, 345 U.S. 992, 73 S. Ct. 1129, 97 L. Ed. 1400 (1953).

The Virginia statute creates a lien on the ship in a case of wrongful death. Lewis v. Jones, 27 F.2d 72 (4th Cir.), cert. denied, 278 U.S. 634, 49 S. Ct. 32, 73 L. Ed. 551 (1928).

This section authorizes recovery for the death of a longshoreman under the substantive principles of the maritime law. Rederi A/B Dalen v. Maher, 303 F.2d 565 (4th Cir. 1962).

Lien can be enforced in federal courts. - This section, giving a right of suit in rem against a vessel wrongfully or negligently causing the death of any person, creates a lien, and may be enforced by a libel in rem in the federal courts, when the accident occurs in their maritime jurisdiction. The Glendale v. Evich, 81 F. 633 (4th Cir. 1897).

Once the conclusion is reached that a state statute gives a lien on the ship for wrongful death, such a lien can unquestionably be enforced in a suit in admiralty. Lewis v. Jones, 27 F.2d 72 (4th Cir.), cert. denied, 278 U.S. 634, 49 S. Ct. 32, 73 L. Ed. 551 (1928).

In this section Virginia has bestowed upon admiralty a right to grant a recovery not previously possessed by admiralty. The endowment must be taken cum onere. Rights and liabilities under this section must be the same on the water as on the land. Continental Cas. Co. v. The Benny Skou, 101 F. Supp. 15 (E.D. Va. 1951), aff'd, 200 F.2d 246 (4th Cir. 1952), cert. denied, 345 U.S. 992, 73 S. Ct. 1129, 97 L. Ed. 1400 (1953).

Contributory negligence is not absolute defense. - Contributory negligence is not an absolute bar to a right of recovery in an action against ships under this section. Holley v. The S.S. Manfred Stansfield, 269 F.2d 317 (4th Cir.), cert. denied, 361 U.S. 883, 80 S. Ct. 154, 4 L. Ed. 2d 119 (1959), commented on in 45 Va. L. Rev. 1222 (1959).

And maritime rule of comparative negligence will be applied. - A federal court sitting in admiralty in an action against a vessel and its owners for death of employee of a stevedore will apply the rule that contributory negligence mitigates damages. Holley v. The S.S. Manfred Stansfield, 269 F.2d 317 (4th Cir.), cert. denied, 361 U.S. 883, 80 S. Ct. 154, 4 L. Ed. 2d 119 (1959), commented on in 45 Va. L. Rev. 1222 (1959).

The maritime rule of comparative negligence where the injury resulting in death occurs on navigable waters of the State is unmistakably indicated in the language of this section. Holley v. The S.S. Manfred Stansfield, 269 F.2d 317 (4th Cir.), cert. denied, 361 U.S. 883, 80 S. Ct. 154, 4 L. Ed. 2d 119 (1959), commented on in 45 Va. L. Rev. 1222 (1959).

Recovery may not be used to reimburse employer or compensation carrier. - The provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A., § 901 et seq., do not amend the wrongful death statute of Virginia to the extent that the share of a beneficiary under the death statute may be used to reimburse the employer or compensation carrier for death benefits paid to a beneficiary under the Longshoremen's and Harbor Workers' Compensation Act who is not a recipient beneficiary under the death statute. Holley v. The Manfred Stansfield, 186 F. Supp. 805 (E.D. Va. 1960).

Jones Act and Death on the High Seas Act. - A state wrongful death statute would not be applicable to a situation where the right to maintain an action has been expressly granted under the Jones Act and the Death on the High Seas Act. McPherson v. Steamship S. African Pioneer, 321 F. Supp. 42 (E.D. Va. 1971).

D. ACTION BY PERSONAL REPRESENTATIVE.

The personal representative is the only party that can maintain an action under this section. Goff v. Norfolk & W.R.R., 36 F. 299 (W.D. Va. 1888).

The administrator sues, not for the benefit of the estate, but primarily and substantially as trustee for certain particular kindred of the deceased. Patterson v. Anderson, 194 Va. 557 , 74 S.E.2d 195, cert. denied, 345 U.S. 965, 73 S. Ct. 952, 97 L. Ed. 1384 (1953).

The personal representative of the deceased sues primarily as trustee for certain statutory beneficiaries and not for the general benefit of the decedent's estate. Conrad v. Thompson, 195 Va. 714 , 80 S.E.2d 561 (1954); Wilson v. Whittaker, 207 Va. 1032 , 154 S.E.2d 124 (1967).

Foreign personal representative cannot maintain action in Virginia. - Since the 1950 amendment of § 26-59 a personal representative, who is not a resident of Virginia and who has not qualified or been appointed as such in the State, cannot maintain an action in a United States district court sitting in Virginia, under the Virginia Statute of Death by Wrongful Act. Holt v. Middlebrook, 214 F.2d 187 (4th Cir. 1954).

Virginia requires that the personal representative who prosecutes an action under its wrongful death act must be a resident of that State. This requirement has been held to be binding in the federal courts. Grady v. Irvine, 254 F.2d 224 (4th Cir.), cert. denied, 358 U.S. 819, 79 S. Ct. 30, 3 L. Ed. 2d 60 (1958).

This section and § 26-59 prohibit an Ohio administrator from instituting an action for wrongful death in Virginia. Goranson v. Capital Airlines, 221 F. Supp. 820 (E.D. Va. 1963), cert. denied, 382 U.S. 984, 86 S. Ct. 560, 15 L. Ed. 2d 473 (1966).

Thus action against citizen of Virginia may be maintained only in state courts. - At present an action for wrongful death against a citizen of Virginia may be maintained only in the state courts, and this situation will continue unless the General Assembly of Virginia should choose to modify the effect of the 1950 amendment to § 26-59. Rodgers v. Irvine, 161 F. Supp. 784 (W.D. Va. 1957), aff'd sub nom. Grady v. Irvine, 254 F.2d 224 (4th Cir.), cert. denied, 358 U.S. 819, 79 S. Ct. 30, 3 L. Ed. 2d 60 (1958).

But out-of-state administrator can maintain action in another state. - See Kaufmann v. Service Trucking Co., 139 F. Supp. 1 (D. Md. 1956), holding that a domiciliary administrator appointed in Illinois could maintain an action in Maryland under the Virginia statute without qualifying in Virginia.

If administrator and defendant of different states sufficient for federal jurisdiction. - Where the administrator and defendant are citizens of different states, the action may be brought in the federal courts, though the deceased was a citizen of the same state with defendant, where his widow and children still reside. In such action the real beneficiaries need not be named in the declaration. Harper v. Norfolk & W.R.R., 36 F. 102 (W.D. Va. 1887).

The fact that a citizen of another state is selected as administrator for the purpose of conferring on the United States circuit court jurisdiction of an action to be brought by him, does not defeat that jurisdiction. Goff v. Norfolk & W.R.R., 36 F. 299 (W.D. Va. 1888).

CIRCUIT COURT OPINIONS

Construction of statute. - Demurrer challenging § 8.01-50 as contrary to Virginia law was denied where the statutory language was nearly identical to case law language, the General Assembly had the authority to change the common law, and the case law interpreting a predecessor statute was not common law. Justin Benjamin Velvin v. Tabb, 96 Va. Cir. 208, 2017 Va. Cir. LEXIS 120 (Petersburg July 31, 2017).

Argument that only the natural mother had a right of action under subsections B and C of § 8.01-50 was rejected as contrary to the statutory language. Justin Benjamin Velvin v. Tabb, 96 Va. Cir. 208, 2017 Va. Cir. LEXIS 120 (Petersburg July 31, 2017).

Subsection B of § 8.01-50 was not constitutional where recognizing a fetal death cause of action against any tortfeasor other than the natural mother was an exercise of the state's interest in protecting the unborn. Justin Benjamin Velvin v. Tabb, 96 Va. Cir. 208, 2017 Va. Cir. LEXIS 120 (Petersburg July 31, 2017).

No new cause of action. - This section creates no new cause of action, but continues, transmits, or substitutes the right to sue which the decedent has until his death, permitting a personal representative to pick up the right of the deceased to sue for the benefit of the decedent's beneficiary. Gray v. Rhoads, 55 Va. Cir. 362, 2001 Va. Cir. LEXIS 300 (Charlottesville 2001), remanded on other grounds, 268 Va. 81 , 597 S.E.2d 93 (2004).

Virginia's wrongful death statute does not create a new cause of action, but only a right of action in a personal representative to enforce the decedent's claim for any personal injury that caused death. As set forth in this section, whenever the death of a person shall be caused by the wrongful act, neglect, or default of any person and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and to recover damages in respect thereof. Clearly, the conduct of the wrongdoer toward the decedent (not the beneficiaries) dictates whether recovery may be had. Defenses, such as contributory negligence, would be available to the purported tortfeasor. Thus the decedent by his very conduct can affect the possibility of recovery under the wrongful death scheme. Culler v. Johnson, 98 Va. Cir. 470, 2014 Va. Cir. LEXIS 385 (Roanoke Nov. 21, 2014).

Standing. - Administratrix had standing under § 8.01-13 to bring an action against insurers for their failure to defend under an assignment of rights obtained in a consent agreement with a defendant tortfeasor in a wrongful death action on behalf of five estates' beneficiaries; the administratrix was the proper person to bring the wrongful death actions under § 8.01-50 , and she acted as the surrogate for the beneficiaries of the cause of action named in § 8.01-53 . Beckner v. Twin City Fire Ins. Co., 58 Va. Cir. 544, 2002 Va. Cir. LEXIS 175 (Roanoke 2002).

Where an individual lacked standing to file a wrongful death action under § 8.01-50 , the individual could not be substituted as a plaintiff under Va. Sup. Ct. R. 1:8 when he qualified as a decedent's personal representative more than two years after the death; as a result, the action was barred by the statute of limitations in § 8.01-244 . Young v. Carter, 61 Va. Cir. 682, 2002 Va. Cir. LEXIS 437 (Franklin County 2002).

Dismissal of a complaint by the administratrix of the decedent's estate, for lack of standing, was inappropriate because the allegations by the administratrix of the decedent's pain and suffering did not automatically transform the wrongful death action into a survivorship action, which the administratrix did not have standing to bring. Sciortino v. Piccioni, 88 Va. Cir. 106, 2014 Va. Cir. LEXIS 71 (Norfolk Mar. 20, 2014).

Survivors lacked standing to bring a legal malpractice suit because only a personal representative could bring the underlying wrongful death suit and a legal malpractice claim arising out of that suit. Khattab v. Epperly, 102 Va. Cir. 306, 2019 Va. Cir. LEXIS 252 (Richmond July 9, 2019).

Potential beneficiaries. - In a wrongful death action, the court overruled the doctor's demurrer, because the Wrongful Death Act permitted the distribution of damages to statutory beneficiaries of a fetus beyond the natural mother, and thus, the father, brothers, and sisters could be statutory beneficiaries. Healey v. Perfectly Female Women's Health Care, P.C., 99 Va. Cir. 357, 2018 Va. Cir. LEXIS 121 (Fairfax County July 12, 2018).

Determination of proper venue in wrongful death action. - Although a husband died in a city, the wife's wrongful death cause of action was based on a doctor's alleged negligent medical treatment in a county; therefore, because the city court was not a permissible venue under § 8.01-262 , pursuant to § 8.01-260 , venue had to be transferred to the county court. Sarver v. Prud'Homme, 67 Va. Cir. 315, 2005 Va. Cir. LEXIS 51 (Roanoke 2005).

Cause of action stated. - Defendant officers' demurrer to count IV was overruled to the extent that plaintiff claimed damages for conspiracy occurring after decedent's death because plaintiff's claim in count IV (which alleged that the officers conspired to cover up and conceal their unlawful conduct and racially based violation of their duties and decedent's rights) was equivalent to a wrongful death action under § 8.01-50 et seq. Chandler v. Routin, 63 Va. Cir. 139, 2003 Va. Cir. LEXIS 347 (Norfolk 2003).

Alternative pleading with a survival action permitted. - Because the responses sought by a hospital from a decedent's survivor attempted to force the survivor to proceed solely under either § 8.01-50 or 8.01-25 , which was contrary to § 8.01-281 , and improperly forced the survivor to elect his remedies, his answers to two requests for admissions were deemed sufficient. Richard Montgomery Bros. v. Rockingham Mem. Hosp., 75 Va. Cir. 85, 2008 Va. Cir. LEXIS 29 (Rockingham County 2008).

Single claim for each death. - Only personal representatives of estates of decedents who were killed when their cars were crushed from a dump truck as a result of a collision were entitled to make a single claim against the Virginia Property and Casualty Insurance Guaranty Association, pursuant to the provision of the Act, § 38.2-1600 et seq., for each death resulting from the accident pursuant to § 8.01-50 . MacDougall v. Hartford Ins. Group, 61 Va. Cir. 181, 2003 Va. Cir. LEXIS 24 (Fairfax County 2003).

Appointment of fiduciary required. - Plaintiff parents did not qualify as the personal representatives of their deceased child's estate under subsection B of § 8.01-50 and, therefore, in their wrongful death action brought against a property management corporation, the corporation's plea in bar was granted with prejudice since the two-year statute of limitations had expired the day after the parents brought suit, thereby preventing joinder of a personal representative, who had been appointed 10 months after the suit was filed. The court refused to apply the law of Japan, as urged by the parents, because Japanese law did not require any additional step to qualify a person to bring suit on behalf of a decedent, which directly conflicted with Virginia law requiring the appointment of a fiduciary. Yoshida v. Capital Props. Mgmt., 68 Va. Cir. 279, 2005 Va. Cir. LEXIS 124 (Fairfax County 2005).

Administratrix lacked capacity to bring action. - Wrongful death action pursuant to subsection B of § 8.01-50 by administratrix of decedent, who was not qualified as the personal representative, did not toll the statute of limitations of § 8.01-244 because such action, which was not filed by one with the right capacity or standing, was a nullity. Fowler v. Winchester Med. Ctr., Inc., 59 Va. Cir. 216, 2002 Va. Cir. LEXIS 344 (Winchester July 2, 2002).

Administratrix had capacity to bring action. - Consultant's claim that a wrongful death suit was improperly filed by an administratrix rather than a personal representative as required by § 8.01-50 was rejected as the definition of personal representative in § 1-234 included an administrator. Rodriguez v. N. Va. Elec. Coop., 79 Va. Cir. 266, 2009 Va. Cir. LEXIS 236 (Loudoun County Sept. 14, 2009).

Administrator lacked capacity to accept service of process. - Defendant's motion to quash service of process of a motion for judgment on the ground that the administrator who accepted service of process did not have authority to do so as her qualification was pursuant to § 8.01-50 , not former § 64.1-75, was properly granted because, while the administrator intended to qualify in order to accept service of process, she did not do so, and she, not the clerk, bore the responsibility for this mistake. Thus, there was, in fact, no error or oversight to correct, as contemplated by § 8.01-428 . Blick v. Fant, 70 Va. Cir. 76, 2005 Va. Cir. LEXIS 292 (Greensville County 2005).

Administrator could not sue groups. - As a decedent could not initiate a personal injury suit against two groups before her death since the limitations period had passed, the administrator could not sue the groups for wrongful death under § 8.01-50 on the decedent's behalf under § 8.01-244 ; the claims filed against two servants of the groups did not toll the limitations period as to their master. Jackson v. Vanga, 85 Va. Cir. 266, 2012 Va. Cir. LEXIS 90 (Norfolk Aug. 24, 2012).

Dismissal based on charitable immunity. - Motions to dismiss by employees of a charity were granted as to a wrongful death action, filed by the administrator of an estate, because the employees were entitled to charitable immunity as employees of a charity, and the immunity applied to both simple and gross negligence. Brown v. Mills, 61 Va. Cir. 479, 2003 Va. Cir. LEXIS 47 (Portsmouth 2003).

Surviving spouse's remarriage is generally inadmissible. - Defendants in a wrongful death action were precluded from mentioning a widow's remarriage during voir dire or opening statements, because such evidence was generally inadmissible, but an absolute ruling on the use of the evidence was premature when no evidence had yet been introduced at trial; if the widow opened the door or, in defendants' opinion, the testimony or other evidence during trial provided a basis for admitting the remarriage evidence, defendants were given leave to request its admission. Flannagan v. Drs. Cochran Eberly & Howe, P.C., 70 Va. Cir. 1, 2005 Va. Cir. LEXIS 311 (Alexandria 2005).

Contract for arbitration binding on beneficiaries. - Circuit court entered an order compelling arbitration of a wrongful death action because a decedent's contract for arbitration entered into on her behalf by her attorney in fact, which bound the decedent, her assessors, legal representatives, and beneficiaries was binding on the statutory beneficiaries. Bohlen v. Capital Senior Living, Inc., 104 Va. Cir. 178, 2020 Va. Cir. LEXIS 18 (Chesapeake Jan. 31, 2020).

Arbitration addendum. - In a wrongful death case, even if an arbitration addendum had been deemed to be validly executed by a signer as power-of-attorney, it nonetheless did not require arbitration and waive the constitutional right of the jury trial for the statutory beneficiaries. Stevens v. Medical Facilities of Am. XXXII (32), 98 Va. Cir. 376, 2018 Va. Cir. LEXIS 122 (Nelson County June 27, 2018).

Admissibility of evidence. - In a wrongful death case, the court denied defendant's motion in limine to exclude evidence of any condition of the decedent that was not the proximate cause of the decedent's death, including the existence of decubitus ulcers, dehydration, and the use of a catheter. The essence of defendant's motion depended on relevance, and issues of relevance could be better analyzed at trial. Wolf v. A+ Loving Care, Inc., 72 Va. Cir. 369, 2006 Va. Cir. LEXIS 272 (Roanoke County December 28, 2006).

In a wrongful death case, the court denied plaintiff's motion in limine to exclude do-not-resuscitate orders, a surrogate directive, and a living will. Whether these were unduly prejudicial was a determination that should be made at trial. Wolf v. A+ Loving Care, Inc., 72 Va. Cir. 369, 2006 Va. Cir. LEXIS 272 (Roanoke County December 28, 2006).

§ 8.01-50.1. Certification of expert witness opinion at time of service of process.

Every motion for judgment, counter claim, or third party claim in any action pursuant to § 8.01-50 for wrongful death against a health care provider, at the time the plaintiff requests service of process upon a defendant, or requests a defendant to accept service of process, shall be deemed a certification that the plaintiff has obtained from an expert witness whom the plaintiff reasonably believes would qualify as an expert witness pursuant to subsection A of § 8.01-581.20 a written opinion signed by the expert witness that, based upon a reasonable understanding of the facts, the defendant for whom service of process has been requested deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed. This certification is not necessary if the plaintiff, in good faith, alleges in his wrongful death action a medical malpractice theory of liability where expert testimony is unnecessary because the alleged act of negligence clearly lies within the range of the jury's common knowledge and experience.

The certifying expert shall not be required to be an expert expected to testify at trial nor shall any defendant be entitled to discover the identity or qualifications of the certifying expert or the nature of the certifying expert's opinions. Should the certifying expert be identified as an expert expected to testify at trial, the opinions and bases therefor shall be discoverable pursuant to Rule 4:1 of the Rules of Supreme Court of Virginia with the exception of the expert's status as a certifying expert.

Upon written request of any defendant, the plaintiff shall, within 10 business days after receipt of such request, provide the defendant with a certification form which affirms that the plaintiff had obtained the necessary certifying expert opinion at the time service was requested or affirms that the plaintiff did not need to obtain a certifying expert opinion. The court, upon good cause shown, may conduct an in camera review of the certifying expert opinion obtained by the plaintiff as the court may deem appropriate. If the plaintiff did not obtain a necessary certifying expert opinion at the time the plaintiff requested service of process on a defendant, the court shall impose sanctions according to the provisions of § 8.01-271.1 and may dismiss the case with prejudice.

(2005, cc. 649, 692; 2007, c. 489; 2013, cc. 65, 610.)

The 2007 amendments. - The 2007 amendment by c. 489 inserted "or requests a defendant to accept service of process" preceding "shall be deemed" in the first sentence of the first paragraph; and inserted "or qualifications" following "identity" in the first sentence of the second paragraph.

The 2013 amendments. - The 2013 amendments by cc. 65 and 610 are identical, and added the second sentence of the third paragraph.

Law review. - For 2006 survey article, "Medical Malpractice Law," see 41 U. Rich. L. Rev. 231 (2006).

For 2007 annual survey article, "Civil Practice and Procedure," see 42 U. Rich. L. Rev. 229 (2007).

For 2007 annual survey article, "Health Care Law," see 42 U. Rich. L. Rev. 441 (2007).

CIRCUIT COURT OPINIONS

Certification of expert witness not obtained. - Parents failed to obtain a necessary certifying expert opinion as required; the acts of negligence alleged involved medical knowledge not within the range of the jury's common knowledge and experience, so a certifying expert opinion was necessary, and as a sanction, as the parents had sufficient time to prepare an appropriate expert certification and defendants had been prejudiced, the action was dismissed with prejudice. Susko v. Toor, 91 Va. Cir. 372, 2015 Va. Cir. LEXIS 169 (Norfolk Nov. 12, 2015).

Dismissal of a complaint that was brought by the administrator of a decedent's estate against a senior-care facility at which the decedent was a patient was appropriate because the case was a medical malpractice case and the administrator failed to obtain an expert certification of merit. Webb v. Patrick Henry Hosp., Inc.,, 2021 Va. Cir. LEXIS 57 (Newport News Mar. 30, 2021).

Certification proper. - Administratrix's counsel could reasonably believe his expert was qualified to offer an opinion about those who provided post-operative care because hospital employees preformed procedures within the expert's field of knowledge; given the expert's specialty and the fact that all employees discharged responsibilities about which he would appear to be qualified to testify, the employees, hospital, and medical practice failed to show he was not qualified to provide the certification. Wilder v. Children's Hosp. of the King's Daughters,, 2017 Va. Cir. LEXIS 172 (Norfolk Sept. 20, 2017).

Contents and timing of an expert opinion satisfied the statute because an administratrix's counsel obtained the required certification letter prior to requesting service on a hospital, medical practice, and hospital employees, albeit not prior to requesting preparation of summonses; the hospital, practice, and employee did not advance any authority to support the position that receipt after the request for summonses but prior to delivery for service violated the statute. Wilder v. Children's Hosp. of the King's Daughters,, 2017 Va. Cir. LEXIS 172 (Norfolk Sept. 20, 2017).

Executor had obtained written certifications from experts opining that the medical facilities and medical providers had deviated from the applicable standard of care and that the deviation proximately caused the decedent's alleged injuries as required by § § 8.01-20.1 and 8.01-50.1 where a surgeon met the statutory requirements for licensure, her certification and practice in wound care at skilled nursing facilities potentially qualified her as a specialist who knew the applicable standards of care, and her experience significantly overlapped with the responsibilities of nurses, the nursing home administrator, and dietician. Clarke v. Med. Facilities of Am., Inc.,, 2021 Va. Cir. LEXIS 86 (Norfolk Apr. 20, 2021).

§ 8.01-51. No action when deceased has compromised claim.

No action shall be maintained by the personal representative of one who, after injury, has compromised for such injury and accepted satisfaction therefor previous to his death.

(Code 1950, § 8-635; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 5C M.J. Death by Wrongful Act, § 7.

CASE NOTES

Compromise bars action. - If a man, having suffered a personal injury, compromises for such injury and accepts full satisfaction therefor, and afterwards dies from the effects of the injury, a question arises as to the right of his personal representative to maintain an action for death by wrongful act, neglect, or default. A former version of this section settled the question by providing that such action could not be maintained. This is the weight of authority and is supported by the better reasoning. Brammer's Adm'r v. Norfolk & W. Ry., 107 Va. 206 , 57 S.E. 593 (1907) (decided under prior law).

§ 8.01-52. Amount of damages.

The jury or the court, as the case may be, in any such action under § 8.01-50 may award such damages as to it may seem fair and just. The verdict or judgment of the court trying the case without a jury shall include, but may not be limited to, damages for the following:

  1. Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent;
  2. Compensation for reasonably expected loss of (i) income of the decedent and (ii) services, protection, care and assistance provided by the decedent;
  3. Expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death;
  4. Reasonable funeral expenses; and
  5. Punitive damages may be recovered for willful or wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others.

    Damages recoverable under 3, 4 and 5 above shall be specifically stated by the jury or the court, as the case may be. Damages recoverable under 3 and 4 above shall be apportioned among the creditors who rendered such services, as their respective interests may appear. Competent expert testimony shall be admissible in proving damages recoverable under 2 above.

    The court shall apportion the costs of the action as it shall deem proper.

    (Code 1950, § 8-636.1; 1974, c. 444; 1977, cc. 460, 617; 1982, c. 441.)

REVISERS' NOTE.

Former §§ 8-636.1 and 8-638 contain, inter alia, duplicate provisions as to beneficiaries, fail to denote when these beneficiaries are to be determined, and are unclear as to the specification of the damages. Sections 8.01-52 , 8.01-53 , and 8.01-54 amend and reorder the provisions of the former sections to present them more logically and to clarify the procedures.

Section 8.01-52 adopts former § 8-636.1 with several changes. The section expressly recognizes that the amount of damages may be awarded by the jury or by the court if the case is tried without a jury, and damages for medical and funeral expenses are required to be specifically stated. Provisions in former § 8-636.1 defining the class and beneficiaries have been deleted and incorporated into § 8.01-53 . A provision has been added providing that competent expert testimony is admissible regarding the proof of damages for loss of income, services, etc. of the decedent.

________

Cross references. - As to disclosure of homeowners insurance and personal injury liability insurance policy limits, see § 8.01-417.01 .

Editor's note. - Pursuant to § 30-152 and Acts 1977, c. 617, cl. 4, the Code Commission has given effect, in § 8.01-52 as set out above, to the amendment to former § 8-636.1, corresponding to this section, in Acts 1977, c. 460. The amendment added the second sentence of the next-to-last paragraph.

Law review. - For discussion of punitive damages and their possible application in automobile accident litigation, see 46 Va. L. Rev. 1036 (1960). For case note on the measure of damages for wrongful death of a minor child, see 18 Wash. & Lee L. Rev. 277 (1961). For note, "Wrongful Death Damages in Virginia," see 12 Wm. & Mary L. Rev. 396 (1970). For article on damages recoverable for wrongful death, see 5 U. Rich. L. Rev. 213 (1971). For survey of Virginia law on domestic relations for the year 1970-1971, see 57 Va. L. Rev. 1487 (1971). For survey of Virginia law on torts for the year 1971-1972, see 58 Va. L. Rev. 1349 (1972). For survey of Virginia law on torts for the year 1973-1974, see 60 Va. L. Rev. 1615 (1974). For survey of Virginia law on evidence for the year 1976-77, see 63 Va. L. Rev. 1428 (1977). For an overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981).

For a note, "The Supreme Court's Backwards Proportionality Jurisprudence: Comparing Judicial Review of Excessive Criminal Punishments and Excessive Punitive Damages Awards," see 86 Va. L. Rev. 1249 (2000).

For article, "The 'Vanishing Trial': Arbitrating Wrongful Death," see 53 U. Rich. L. Rev. 1339 (2019).

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 114; 5C M.J. Damages, § 69; 5C M.J. Death by Wrongful Act, §§ 4, 6, 8, 11, 14 - 19.

CASE NOTES

I. DECISIONS UNDER CURRENT LAW.
A. GENERAL CONSIDERATION.

Construction of "fair" and "just." - As used in this section, the terms "fair" and "just" are to be given broad and liberal construction. Sawyer v. United States, 465 F. Supp. 282 (E.D. Va. 1978); Miltier v. Beorn, 696 F. Supp. 1086 (E.D. Va. 1988).

Purpose of damages specified. - The damages specified in this section as recoverable are designed to compensate the beneficiaries for the losses they suffer as a result of the decedent's death, and not to accumulate an estate for the decedent. O'Connor v. Several Unknown Correctional Officers, 523 F. Supp. 1345 (E.D. Va. 1981).

The only limit imposed on the amount of wrongful death damages is what may seem fair and just. Miltier v. Beorn, 696 F. Supp. 1086 (E.D. Va. 1988).

Section 8.01-25 defers to the wrongful death statute as the exclusive statement of the grievances that Virginia will recognize when a tort victim dies of her injuries. El-Meswari v. Washington Gas Light Co., 785 F.2d 483 (4th Cir. 1986).

Punitive damages provision not retroactive. - Allowing punitive damages in a wrongful death action constitutes a major change in both the effect and purpose of the Virginia Death by Wrongful Act statute. To retroactively apply such a significant change in the law without an explicit legislative directive would be to ignore an established rule of statutory construction as well as tampering with parties' vested rights and incurred obligations as they existed under the then existing law. Accordingly, the 1982 amendment to this section will not be given retroactive effect. Estate of Armentrout v. International Harvester Co., 547 F. Supp. 136 (W.D. Va. 1982).

Punitive damages. - Court erred by granting a physician's motion to strike evidence pertaining to a punitive damages claim because the jury reasonably could have determined that the physician was conscious of the risks associated with the long-term use of narcotic pain medication and the patient's increased risk of drug abuse and addiction and that the physician consciously disregarded those risks when the physician continued to prescribe the medication to the patient while not examining the patient for signs of abuse or addiction for a significant period of time. Curtis v. Highfill, 298 Va. 499 , 840 S.E.2d 321, 2020 Va. LEXIS 38 (2020).

Notwithstanding remedial aspects of such provision. - While a statute which alters procedures or supplies remedies for enforcing an existing right may be given retrospective effect, there must still be some indication that the legislature enacting the statutory change intends it be given such operation. The 1982 General Assembly has not indicated that it intended the amendment to operate retrospectively. Therefore, even if the amendment is considered remedial, the court will not apply it in cases arising prior to its effective date. Estate of Armentrout v. International Harvester Co., 547 F. Supp. 136 (W.D. Va. 1982).

1974 amendment did not allow punitive damages. - The 1974 amendment to former § 8-636.1 could only be interpreted to indicate the legislature's intent that the enumerated elements listed as recoverable damages were not meant to exclude other factors a jury could consider in arriving at compensation for the beneficiary's loss. It did not allow punitive damages. Estate of Armentrout v. International Harvester Co., 547 F. Supp. 136 (W.D. Va. 1982).

Dependency not prerequisite. - The damage provision of this statute requires proof of loss by the statutory beneficiary or beneficiaries. Dependency is not a prerequisite. Marshall v. Goughnour, 221 Va. 265 , 269 S.E.2d 801 (1980).

Beneficiary under the Virginia Wrongful Death Act need not be a dependent, nor a minor child. Wilson v. United States, 637 F. Supp. 669 (E.D. Va. 1986).

Award not intended to be replacement for loss sustained. - Under the broad language of this section, "any 'pecuniary loss' suffered by the statutory beneficiaries is clearly a proper element of damage," but loss of comfort, guidance and society, like sorrow, mental anguish and solace, are virtually incalculable except in a rough and gross manner. Money is no substitute, and under the statute the amount which may be awarded is what "may seem fair and just." Such an award is not suggested or intended to be replacement of the loss sustained. It is the means provided by which the damaging party may make some amends for the wrong done. Sawyer v. United States, 465 F. Supp. 282 (E.D. Va. 1978).

Damages determined from facts and circumstances. - Damages in a death case where the measure is what is fair and just, as in personal injury actions, are to be determined from all of the facts and circumstances. Sawyer v. United States, 465 F. Supp. 282 (E.D. Va. 1978).

Error to limit damages to funeral expenses. - A jury verdict for the exact amount of a decedent's funeral expenses was inadequate as a matter of law because it failed to compensate her statutory beneficiaries for any other items of damage; by returning a verdict for only the amount of the funeral expenses, the jury demonstrated a misunderstanding of either the law or the facts or both in that the evidence at trial clearly supported the conclusion that the decedent's statutory beneficiaries experienced sorrow, mental anguish and loss of solace as a result of the decedent's death. Rice v. Charles, 260 Va. 157 , 532 S.E.2d 318 (2000).

Determination of damages for loss of society. - Damages for loss of society can be left to turn mainly upon the good sense and deliberate judgment of the trier, as insistence on mathematical precision would be illusory, and the judge or jury must be allowed to make a reasonable approximation, guided by judgment and practical experience. It is enough if the evidence shows the extent of damages as a matter of a just and reasonable inference, although the result be only an approximation. Sawyer v. United States, 465 F. Supp. 282 (E.D. Va. 1978).

Economic and intangible damages awards to widows and children. - Estate of a U.S. AID worker who was a victim of the 1983 U.S. Embassy bombing in Beirut, Lebanon, made out a valid claim of wrongful death under Virginia law and was entitled to recover $3.101 million in economic damages for the benefit of his widow, who was also entitled to $2 million to compensate for the loss of services, protection, care, and assistance provided by the victim, as well as for her sorrow, mental anguish, and solace pursuant to § 8.01-52 . Each of the victim's children was entitled to $5 million for the loss of services, protection, care, and assistance provided by the victim, as well as for their sorrow, mental anguish, and solace. Dammarell v. Islamic Republic of Iran, 404 F. Supp. 2d 261, 2005 U.S. Dist. LEXIS 32618 (D.D.C. Dec. 14, 2005).

Damages recoverable for deprivation of decedent's civil rights. - A decedent's claims under 42 U.S.C. § 1983, based on violations of his civil rights which caused his death, survive him, and his duly qualified administratrix may be awarded compensatory and punitive damages for the deprivation if she succeeds on the merits of the case, since allowing the administratrix to obtain compensation only for whatever loss was suffered by statutory beneficiaries under the Virginia wrongful death statute and excluding a punitive award would be inconsistent with the compensatory and deterrent policies behind 42 U.S.C. § 1983. O'Connor v. Several Unknown Correctional Officers, 523 F. Supp. 1345 (E.D. Va. 1981).

Speculative nature of decedents' income. - The evidence as to reasonably expected loss of decedent's income was inadmissible as a matter of law as being too speculative where decedent had a mental age of nine and was a functional illiterate who could only write his name and decedent's only employment noted in the record continued for only eight weeks, during which time he lost six or seven days. Cassady v. Martin, 220 Va. 1093 , 266 S.E.2d 104 (1980).

No recovery by mother under this section for stillbirth. - Injury to an unborn child constitutes injury to the mother and she may recover for such physical injury and mental suffering associated with a stillbirth. She is not entitled, however, to damages ordinarily recoverable in a wrongful death action. For example, the mother may not recover for anticipated loss of the child's society, companionship, comfort, or guidance. She may not be compensated for an expected loss of income of the child or for services, protection, care, or assistance expected to be provided by the child had he lived. Modaber v. Kelley, 232 Va. 60 , 348 S.E.2d 233 (1986).

Expert testimony of grief excluded. - In a wrongful death action, the district court's decision to exclude a doctor's expert testimony, concluding that the jury could assess the mother's inner grief without expert guidance, represented a reasonable exercise of the trial judge's broad discretion under Federal Rule of Evidence 702 to determine that a proposed expert will not significantly assist the arbiter of fact. El-Meswari v. Washington Gas Light Co., 785 F.2d 483 (4th Cir. 1986).

Indirect physical injuries as illustration of mental anguish. - Although indirect physical injuries allegedly suffered by the mother as a result of her child's death are not compensable in themselves, the court might nevertheless admit the mother's proffered information to illustrate her claim of direct mental anguish. El-Meswari v. Washington Gas Light Co., 785 F.2d 483 (4th Cir. 1986).

Subdivision 1 does not authorize recovery for injury to the decedent's mother's heart or her miscarriage. The legislation addresses the decedent's death as an independent event in the mother's life and attempts to compensate the mother for the disruption of that single relationship. It claims no competence to trace or to relieve the indirect, although no doubt powerful, influence of the decedent's death as it touches all of her mother's future life. El-Meswari v. Washington Gas Light Co., 785 F.2d 483 (4th Cir. 1986).

Foreign burial. - The statutory guarantee of "reasonable funeral expenses" includes recovery for the foreign burial of a foreign citizen. El-Meswari v. Washington Gas Light Co., 785 F.2d 483 (4th Cir. 1986).

Admissibility of expectancy table in § 8.01-419 . - The expectancy of continued life of the decedent is relevant and necessary to establish the extent of loss for the decedent's society, companionship, comfort, guidance, advice, services, protection, care, and assistance set out in this section. The expectancy table in § 8.01-419 , therefore, is admissible if such items of loss are supported by the evidence. Graddy v. Hatchett, 233 Va. 65 , 353 S.E.2d 741 (1987).

Loss of society, companionship, etc. - This section now permits recovery for the beneficiaries' loss of society, companionship, comfort, guidance, advice, services, protection, care, and assistance provided by the decedent. These statutory elements contemplate assignment of a dollar value to these losses and recovery therefor whether or not the beneficiaries can establish their dependency on the decedent. Graddy v. Hatchett, 233 Va. 65 , 353 S.E.2d 741 (1987).

Special verdict relating to damages for solace, lost income, lost services, etc. - This section provides no authority for a special verdict relating to damages for solace, lost income, and lost services and protection. Johnson v. Smith, 241 Va. 396 , 403 S.E.2d 685 (1991).

Error in refusal to set aside verdict where no award for sorrow, mental anguish, etc. - In a wrongful death action where the decedent's widow and children were awarded nothing for sorrow, mental anguish and solace, and the children were awarded nothing for lost services and protection, the award by the jury rendered the entire verdict suspect and lead to the conclusion that the jury must have misconceived or misunderstood the facts or the law; hence, the trial court erred in refusing to set aside the verdict. Johnson v. Smith, 241 Va. 396 , 403 S.E.2d 685 (1991).

Evidence held to support recovery for society, companionship, comfort, guidance, advice, services, protection, care, and assistance of 17-year-old decedent who was survived by his parents, a younger brother, two older half-sisters, and two older half-brothers. Graddy v. Hatchett, 233 Va. 65 , 353 S.E.2d 741 (1987).

Burden for proving punitive damages. - Virginia law views skeptically the utility of punitive damages as a deterrent to anything less than willful misconduct. The resulting interpretation of subdivision 5 places two burdens upon a plaintiff who seeks to prove that a defendant acted "with such recklessness as evinces a conscious disregard for the safety of others." First, the plaintiff must show that the defendant intended all of the acts or omissions that created an extraordinary risk and that the defendant appreciated or had sufficient information to recognize the magnitude of the risk. Second, the plaintiff must show that the defendant responsible for such a risk responded to it with purposeful carelessness, deliberate inattention to known danger, or any intended violation or disregard of the rights of others. Punitive damages are available under this standard only if the plaintiff satisfies both requirements. El-Meswari v. Washington Gas Light Co., 785 F.2d 483 (4th Cir. 1986).

Negligence not amounting to conscious disregard precluded punitive damages. - Virginia law precluded an award of punitive damages in a claim, arising from a fatal traffic accident, against a lessee of a stalled truck on a highway, whose actions and omissions, while negligent and unlawful, did not amount to a conscious disregard of the rights of others. Peacock v. J.C. Penney Co., 764 F.2d 1012 (4th Cir. 1985).

Where a state court, in a wrongful death action under subdivision 5 of § 8.01-52 , made a clear judicial holding that the debtor's conduct in shooting the creditor's decedent was not reckless or willful, and thus did not justify an award of punitive damages, the bankruptcy court held that collateral estoppel barred the creditor from relitigating the issue of willfulness in the bankruptcy action, rendering the debt dischargeable under 11 U.S.C.S. § 523(a)(6). Cornejo v. Gotwalt (In re Gotwalt),, 2008 Bankr. LEXIS 1384 (Bankr. E.D. Va. May 1, 2008).

Applied in Hewitt v. Firestone Tire & Rubber Co., 490 F. Supp. 1358 (E.D. Va. 1980); Minnick v. United States, 767 F. Supp. 115 (E.D. Va. 1990); John Crane, Inc. v. Jones, 274 Va. 581 , 650 S.E.2d 851, 2007 Va. LEXIS 113 (2007).

B. REASONABLY EXPECTED LOSS.

"Reasonably expected" loss of decedent's income in subdivision 2 means such loss as the beneficiaries have suffered, or may suffer. Wilson v. United States, 637 F. Supp. 669 (E.D. Va. 1986).

The words "reasonably expected" in subdivision 2 of this section must clearly refer to the beneficiaries; assuredly, a decedent cannot "reasonably" expect the loss of earnings after she has passed away. Wilson v. United States, 637 F. Supp. 669 (E.D. Va. 1986).

Subdivision 2 makes no distinction between income lost prior to death and that which decedent would have probably earned over a normal work-life expectancy period. Wilson v. United States, 637 F. Supp. 669 (E.D. Va. 1986).

Decedent's son, who had dropped out of college and left the family home, showed no evidence of reasonable expectancy of pecuniary loss occasioned by his mother's death. Wilson v. United States, 637 F. Supp. 669 (E.D. Va. 1986).

Loss of daughter's earning capacity due to illness of parents and grandmother. - Where decedent was living when the daughter graduated from college in December, 1983, and the evidence showed that all expenses for the daughter's education had been paid by the parents, the loss due to defendants' negligence to the daughter between February, 1983, when she dropped out of college, until the mother's death in January, 1985, was essentially a loss of the daughter's earning capacity due to the fact that she could have secured employment but for the illness of her mother, father and grandmother. Adopting the "fair and just" rule as being entitled to a broad and liberal construction, the court would fix this figure at $5,000 confined to the mother's illness and the daughter's reasonable expectancy that, had her mother been in reasonably good health, the mother would have cared for her father and grandmother. Wilson v. United States, 637 F. Supp. 669 (E.D. Va. 1986).

Plans of recent graduate. - In a wrongful death suit, evidence of declarations made by the deceased, an 18-year-old high school graduate, which indicated that he planned to become an architect and thereafter to send his younger, fatherless brother to medical school and to provide his widowed mother a new home, was rejected on the ground that it was too speculative. Howell v. Cahoon, 236 Va. 3 , 372 S.E.2d 363 (1988).

II. DECISIONS UNDER PRIOR LAW.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

The Supreme Court has given the phrase "fair and just" a broad and liberal construction. This section contains no words of limitation confining the jury to merely pecuniary damages. Matthews v. Hicks, 197 Va. 112 , 87 S.E.2d 629 (1955); Gough v. Shaner, 197 Va. 572 , 90 S.E.2d 171 (1955).

The phrase "fair and just" in this section, relating to the amount and distribution of damages in a case of an award for wrongful death, should be given a broad and liberal construction. Eisenhower v. Jeter, 205 Va. 159 , 135 S.E.2d 786 (1964).

What losses to be considered. - Among the losses to be considered under this section are the loss of services, nurture and care, and other advantages and benefits of a pecuniary nature which probably will be lost in the future. Vandergrift v. United States, 500 F. Supp. 229 (E.D. Va. 1978).

Damages which to the jury "may seem fair and just" are the damages suffered by the statutory beneficiaries. Wilson v. Whittaker, 207 Va. 1032 , 154 S.E.2d 124 (1967).

Damages are not confined to pecuniary loss. - In an action the jury, in assessing the damages, are not confined to the mere pecuniary loss and injury, but may give such damages as to them "may seem fair and just." Matthews v. Warner, 70 Va. (29 Gratt.) 570 (1877); Ratcliffe v. McDonald's Adm'r, 123 Va. 781 , 97 S.E. 307 (1918); Matthews v. Hicks, 197 Va. 112 , 87 S.E.2d 629 (1955).

Under this section, the measure of damages in case of a man's death is not limited to the pecuniary value of his life to his estate, but may be exemplary, punitive, and given as a solatium. Harris v. Royer, 165 Va. 461 , 182 S.E. 276 (1935).

In an action under this section, the evidence would primarily relate to and the damages be not only for the pecuniary loss the wife, husband, parent, or child has sustained, but it would be proper for the jury, in computing damages, to take also into consideration the grief and mental anguish of such relatives, and their loss in being deprived of the care, attention, and society of deceased, and to include in the verdict such sum as the jury deem fair and just. Anderson v. Hygeia Hotel Co., 92 Va. 687 , 24 S.E. 269 (1896).

But it is a proper element. - This section allows the jury to award within the statutory limit such damages "as to it may seem fair and just." Under this broad and permissive language, any "pecuniary loss" suffered by the statutory beneficiaries is clearly a proper element of damage. Gough v. Shaner, 197 Va. 572 , 90 S.E.2d 171 (1955).

No pecuniary loss necessary. - It is not necessary that a child have earned money or have a present earning capacity for his statutory beneficiaries to suffer pecuniary loss because of his death. Gough v. Shaner, 197 Va. 572 , 90 S.E.2d 171 (1955).

Recovery of pecuniary loss. - Any pecuniary loss suffered by the statutory beneficiaries is clearly a proper element of damage. See Vandergrift v. United States, 500 F. Supp. 229 (E.D. Va. 1978).

Recovery for mental anguish of beneficiaries, but not of decedent. - In this action given by the statute, the plaintiff cannot recover for the physical pain and mental anguish of the decedent. The mental anguish of the beneficiaries may be increased by the mental and physical suffering of the decedent and they may recover damages therefor, but it is their mental anguish and not the physical pain and mental anguish of the decedent for which recovery is allowed. Virginia Iron, Coal & Coke Co. v. Odle's Adm'r, 128 Va. 280 , 105 S.E. 107 (1920).

Evidence of the pecuniary condition of the deceased and the members of his family is inadmissible for the purpose of proving the liability of the defendant or the quantum of the damages because this section gives a right of recovery regardless of whether the deceased or the members of his family are rich or poor. Crawford v. Hite, 176 Va. 69 , 10 S.E.2d 561 (1940); Matthews v. Hicks, 197 Va. 112 , 87 S.E.2d 629 (1955).

Absent evidence of contribution or the monetary value of services rendered a dependent, there can be no award for loss of services. Vandergrift v. United States, 500 F. Supp. 229 (E.D. Va. 1978).

The amount of recovery is left entirely to the discretion of the jury. Ratcliffe v. McDonald's Adm'r, 123 Va. 781 , 97 S.E. 307 (1918); Harris v. Royer, 165 Va. 461 , 182 S.E. 276 (1935); Chick Transit Corp. v. Edenton, 170 Va. 361 , 196 S.E. 648 (1938).

The amount of damages is solely within the discretion of the jury and may not be set aside as inadequate or excessive, unless it is clearly shown that the verdict was a result of passion, prejudice, or corruption. Matthews v. Hicks, 197 Va. 112 , 87 S.E.2d 629 (1955).

Where evidence showed that when decedent was killed, he was a normal, well developed, thirteen-year-old school boy, enjoying good health and of average intelligence, those proved facts were sufficient to justify an instruction allowing the jury to find that "pecuniary loss" was suffered by his statutory beneficiaries. In doing so the jurors had the right on that evidence to form their own conclusion as to what was decedent's probable life expectancy and consider what they, in their sound judgment, thought would be his probable earnings in the future. Gough v. Shaner, 197 Va. 572 , 90 S.E.2d 171 (1955).

Measure of damages. - Damages may be for loss of deceased's care, attention and society, as well as such sum as the jury may deem fair and just as a solatium to the beneficiaries for their sorrow and mental anguish caused by the death. Wilson v. Whittaker, 207 Va. 1032 , 154 S.E.2d 124 (1967).

Facts and circumstances are to be considered. - Fixing damages in a death case where the measure is what is fair and just is to be determined from all of the facts and circumstances. Vandergrift v. United States, 500 F. Supp. 229 (E.D. Va. 1978).

Determination of damages for loss of society. - Damages for loss of society can be left to turn mainly upon the good sense and deliberate judgment of the trier, as insistence on mathematical precision would be illusory, and the judge or jury must be allowed to make a reasonable approximation, guided by judgment and practical experience. It is enough if the evidence shows the extent of damages as a matter of a just and reasonable inference, although the result be only an approximation. Vandergrift v. United States, 500 F. Supp. 229 (E.D. Va. 1978).

Award not reduced by amounts otherwise paid. - The theory that the award under this section, being for the full amount of damages, should be reduced by any amounts otherwise paid by the government to the injured parties, simply has no application in Virginia when the damages are found to exceed the former statutory maximum awardable. Harris v. United States, 218 F. Supp. 785 (E.D. Va. 1963).

It is not necessary to prove life expectancy of decedent by mortality tables. - In an action for wrongful death in this jurisdiction, it is not essential to prove the expectation of the life of the decedent by mortality tables. Eisenhower v. Jeter, 205 Va. 159 , 135 S.E.2d 786 (1964).

Daughter's work-life earning capacity. - Only in compelling circumstances is it likely that earnings of a daughter may be expected to be applied substantially to the maintenance and support of her brothers and of her mother. Mullins v. Seals, 562 F.2d 326 (4th Cir. 1977).

Evidence regarding a daughter's work-life earning capacity was irrelevant in an action for wrongful death where there was no basis for a finding that the daughter would have made any substantial financial contribution to her family if she had lived. Mullins v. Seals, 562 F.2d 326 (4th Cir. 1977).

Loss of services not recoverable as solace. - Loss of a decedent wife's services, which were pecuniary losses, were not recoverable as solace. Pugh v. Yearout, 212 Va. 591 , 186 S.E.2d 58 (1972).

Record should show nature of services. - Where the record does not show the nature of the services rendered by the decedent the jury has no basis for awarding damages for loss of services. Claar v. Culpepper, 212 Va. 771 , 188 S.E.2d 86 (1972).

A jury verdict assessing damages for wrongful death is final and the Supreme Court has no authority to disturb it. Highway Express Lines v. Fleming, 185 Va. 666 , 40 S.E.2d 294 (1946). See also Cooke v. Griggs, 183 Va. 851 , 33 S.E.2d 764 (1944).

Instruction as to elements and quantum of damages. - In instructing on the elements and quantum of damages allowable under the broad and liberal language of this section, the court rightly told the jury that they might find in a sum not exceeding $25,000, and in ascertaining damages, take into consideration (among other enumerated things) the loss of decedent's "care, attention and society to his wife and to each of his five children," and also take into consideration and award such additional sum as they might "deem fair and just by way of solace and comfort to his wife and five children for the sorrow, suffering and mental anguish occasioned to each of them by his death." Basham v. Terry, 199 Va. 817 , 102 S.E.2d 285 (1958), commented on in 16 Wash. & Lee L. Rev. 97 (1959).

There was no error in an instruction which told the jury that in the event they found for plaintiff they could assess such damages as they deemed fair and just under all the circumstances of the case. Norfolk S. Ry. v. Wood, 182 Va. 30 , 28 S.E.2d 15 (1943).

Evidence that deceased was receiving social security payments. - In an action for death by wrongful act there was no error in admitting evidence that decedent at the time of his death was receiving stated monthly social security payments. Jessee v. Slate, 196 Va. 1074 , 86 S.E.2d 821 (1955).

CIRCUIT COURT OPINIONS

Damage award does not shock the court's conscience. - Although the manufacturer's post-trial filings raised the question of whether the jury's decision to allocate $1 million to a 4-year-old boy's baby brother was insupportable, a $2 million compensatory damage award for the boy's wrongful death did not shock the court's conscience; it was in no way disproportionate to the loss suffered. Simmons v. MTD Prods., 75 Va. Cir. 63, 2008 Va. Cir. LEXIS 224 (Roanoke Feb. 29, 2008).

Who can be compensated. - Argument that only the natural mother could be damaged and compensated under § 8.01-52 was rejected as contrary to the statutorily defined role of an unborn fetus' representative to distribute damages. Justin Benjamin Velvin v. Tabb, 96 Va. Cir. 208, 2017 Va. Cir. LEXIS 120 (Petersburg July 31, 2017).

Natural mother is but one member of the class of beneficiaries described in §