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).

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).

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).

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).

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).

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).

Sellers' representative had standing to bring a breach of contract action against the buyer because, as one of the sellers in the transaction, his individual rights would be affected by the outcome of the proceedings, while the contract provided the ability to initiate litigation on behalf of the sellers, they were "necessary parties" and, rather than dismissing the action, the representative should be granted leave to amend the complaint in order to join the sellers as parties in the action. Eisiminger v. Perspecta, Inc.,, 2021 Va. Cir. LEXIS 155 (Fairfax County July 21, 2021).

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).

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).

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).

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).

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).

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).

CASE NOTES

• I. Decisions Under Current Law.
• II. Decisions Under Prior Law.

CASE NOTES

• I. Decisions Under Current Law.
• II. Decisions Under Prior Law.

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).

CASE NOTES

• I. Decisions Under Prior Law.

CASE NOTES

• I. General Consideration.
• II. What May Be Assigned.
• III. What Constitutes an Assignment.
  • A. In General.
  • B. Necessity for Consideration.
  • C. Notice.
• IV. Effect of Assignment.
  • A. Assignee Takes Subject to Equities and Set-Offs.
  • B. Right to Sue.

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

CASE NOTES

• I. Decisions Under Current Law.
• II. Decisions Under Prior Law.

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

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).

CASE NOTES

• I. Decisions Under Current Law.
  • A. General Consideration.
  • B. Damages.
  • C. Illustrations of Actionable Words.
  • D. Evidence.
  • E. Pleading and Practice.
• II. Decisions Under Prior Law.
  • A. General Consideration.
  • B. Words Actionable Under Statute.
    • 1. In General.
    • 2. Illustrations.
  • C. Publication.
  • D. Parties Liable.
  • E. Malice.
  • F. Privileged Communications.
  • G. Justification.
  • H. Damages.
  • I. Evidence.
  • J. Pleading and Practice.
    • 1. In General.
    • 2. Motion.
    • 3. Pleas.
    • 4. Instructions.
    • 5. Province of Court and Jury.

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).

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).

CASE NOTES

• I. Decisions Under Current Law.
  • A. General Consideration.
  • B. Right of Action.
  • C. Action by Personal Representative.
• II. Decisions Under Prior Law.
  • A. General Consideration.
  • B. Right of Action.
    • 1. In General.
    • 2. Conflict of Laws.
    • 3. Who May Sue; Defenses.
    • 4. Who May Be Sued.
    • 5. Evidence.
  • C. Actions Against Ships.
  • D. Action by Personal Representative.

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).

CASE NOTES

• I. Decisions Under Current Law.
  • A. General Consideration.
  • B. Reasonably Expected Loss.
• II. Decisions Under Prior Law.