VACODE

Chapter 1. General Provisions as to Civil Cases.

Sec.

8.01-1. How proceedings may be in actions pending when title takes effect.
8.01-1.1. References to former sections, articles and chapters of Title 8 and other titles.
8.01-2. General definitions for this title.
8.01-3. Supreme Court may prescribe rules; effective date and availability; indexed, and annotated; effect of subsequent enactments of General Assembly.
8.01-4. District courts and circuit courts may prescribe certain rules.
8.01-4.1. How jurisdiction determined when proceeding is on penal bond.
8.01-4.2. Who may execute bond for obtaining writ or order.
8.01-4.3. Unsworn declarations under penalty of perjury; penalty.

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

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

(Code 1950, § 8-2; 1977, c. 617.)

REVISERS' NOTE.

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

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

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

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

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

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

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

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

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

CASE NOTES

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

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

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

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

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

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

(1978, c. 422.)

§ 8.01-2. General definitions for this title.

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

"Action" and "suit" may be used interchangeably and shall include all civil proceedings whether upon claims at law, in equity, or statutory in nature and whether in circuit courts or district courts;
"Decree" and "judgment" may be used interchangeably and shall include orders or awards;
"Fiduciary" shall include any one or more of the following:
1. guardian,
2. committee,
3. trustee,
4. executor,
5. administrator, and administrator with the will annexed,
6. curator of the will of any decedent, or
7. conservator;
"Rendition of a judgment" means the time at which the judgment is signed and dated;
"Person" shall include individuals, a trust, an estate, a partnership, an association, an order, a corporation, or any other legal or commercial entity;
"Person under a disability" shall include:
1. a person convicted of a felony during the period he is confined;
2. an infant;
3. an incapacitated person as defined in § 64.2-2000 ;
4. an incapacitated ex-service person under § 64.2-2016 ; or
5. any other person who, upon motion to the court by any party to an action or suit or by any person in interest, is determined to be (i) incapable of taking proper care of his person, or (ii) incapable of properly handling and managing his estate, or (iii) otherwise unable to defend his property or legal rights either because of age or temporary or permanent impairment, whether physical, mental, or both. Such impairment may also include substance abuse as defined in § 37.2-100 ;
"Sheriff" shall include deputy sheriffs and such other persons designated in § 15.2-1603 ;
"Summons" and "subpoena" may be used interchangeably and shall include a subpoena duces tecum for the production of documents and tangible things;
"Court of equity," "law and equity court," "law and chancery court," "chancery court," "corporation court," "the chancery side," "court exercising powers in chancery," "court with equitable jurisdiction," and "receivership court" shall mean the circuit court when entertaining equitable claims;
A "motion for judgment," "bill," "bill of complaint," or "bill in equity" shall mean a complaint in a civil action, as provided in the Rules of Supreme Court of Virginia;
"Equity practice," "equity procedure," "chancery practice," and "chancery procedure" shall mean practice and procedure in a civil action as prescribed by this Code and the Rules of Supreme Court of Virginia.
(1977, c. 617; 1988, c. 37; 1997, c. 921; 2005, cc. 681, 716.)

REVISERS' NOTE.

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

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

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

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

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

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

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

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

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

CASE NOTES

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

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

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

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

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

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

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

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

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

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

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

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

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

CIRCUIT COURT OPINIONS

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

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

OPINIONS OF THE ATTORNEY GENERAL

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

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

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

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

REVISERS' NOTE.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CASE NOTES

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

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

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

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

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

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

REVISERS' NOTE.

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

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

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

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

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

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

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

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

CASE NOTES

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

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

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

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

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

CIRCUIT COURT OPINIONS

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

OPINIONS OF THE ATTORNEY GENERAL

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

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

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

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

(Code 1950, § 8-3; 1977, c. 617.)

CASE NOTES

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

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

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

(Code 1950, § 8-4; 1977, c. 617.)

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

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

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

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

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

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

(2005, c. 423.)

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

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

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

Chapter 2. Parties.

Article 1.

General Provisions.

8.01-5.Effect of nonjoinder or misjoinder; limitation on joinder of insurance company.
8.01-6.Amending pleading; relation back to original pleading.
8.01-6.1.Amendment of pleading changing or adding a claim or defense; relation back.
8.01-6.2.Amendment of pleading; relation back to original pleading; confusion in trade name.
8.01-6.3.Actions or suits against fiduciaries; style of the case; amendment of pleading.
8.01-7.When court may add new parties to suit.

Article 2.

Special Provisions.

8.01-8.How minors may sue.
8.01-9.Guardian ad litem for persons under disability; when guardian ad litem need not be appointed for person under disability.
8.01-10.Joinder of tenants in common.
8.01-11.Proceedings on writing binding deceased person.
8.01-12.Suit by beneficial owner when legal title in another.
8.01-13.Assignee or beneficial owner may sue in own name; certain discounts allowed.
8.01-14.Suit against assignor.
8.01-15.Suits by and against unincorporated associations or orders.
8.01-15.1.Anonymous plaintiff; motion for identification; factors to be considered by court.
8.01-15.2.Servicemembers Civil Relief Act; default judgment; appointment of counsel.

Article 3.

Death or Change of Parties.

8.01-16.New parties may have continuance.
8.01-17.When party whose powers cease is defendant.
8.01-18.When suit discontinued unless revived.
8.01-19.Effect of marriage or change of name of party.
8.01-20.Effect of marriage, change of name or death on appeal.
8.01-20.1.Certification of expert witness opinion at time of service of process.
8.01-21.Judgment when death or disability occurs after verdict but before judgment.
8.01-22.When death or disability occurs as to any of several plaintiffs or defendants.
8.01-23.Decree in suit when number of parties exceeds 30 and one of them dies.

Article 4.

Writ of Scire Facias Abolished.

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

Article 1. General Provisions.

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

No action or suit shall abate or be defeated by the nonjoinder or misjoinder of parties, plaintiff or defendant, but whenever such nonjoinder or misjoinder shall be made to appear by affidavit or otherwise, new parties may be added and parties misjoined may be dropped by order of the court at any time as the ends of justice may require.
Nothing in this section shall be construed to permit the joinder of any insurance company on account of the issuance to any party to a cause of any policy or contract of liability insurance, or on account of the issuance by any such company of any policy or contract of liability insurance for the benefit of or that will inure to the benefit of any party to any cause.
(Code 1950, § 8-96; 1954, c. 333; 1977, c. 617.)

REVISERS' NOTE.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CASE NOTES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CIRCUIT COURT OPINIONS

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

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

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

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).

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

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

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

REVISERS' NOTE.

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

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

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

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

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

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

CASE NOTES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CIRCUIT COURT OPINIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(1996, c. 693.)

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

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

CASE NOTES

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

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

CIRCUIT COURT OPINIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A pleading which states a claim against a party whose trade name or corporate name is substantially similar to the trade name or corporate name of another entity may be amended at any time by inserting the correct party's name, if such party or its agent had actual notice of the claim prior to the expiration of the statute of limitations for filing the claim.
In the event that suit is filed against the estate of a decedent, and filed within the applicable statute of limitations, naming the proper name of estate of the deceased and service is effected or attempted on an individual or individuals as executor, administrator or other officers of the estate, such filing tolls the statute of limitations for said claim in the event the executor, administrator or other officers of the estate are unable to legally receive service at the time service was attempted, or defend suit because their authority as executor, administrator or other officer of the estate excludes defending said actions, or their duties as executor, administrator or other officer of the estate had expired at the time of service or during the time of defending said action.
(1999, c. 686.)

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

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

CASE NOTES

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

CIRCUIT COURT OPINIONS

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

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

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

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

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

In any action or suit required to be prosecuted or defended by or in the name of a fiduciary, including a personal representative, trustee, conservator, or guardian, the style of the case in regard to the fiduciary shall be substantially in the following form: "(Name of fiduciary), (type of fiduciary relationship), (Name of the subject of the fiduciary relationship)."
Any pleading filed that does not conform to the requirements of subsection A but otherwise identifies the proper parties shall be amended on the motion of any party or by the court on its own motion. Such amendment relates back to the date of the original pleading.
(2010, c. 437.)

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

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

CASE NOTES

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

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

CIRCUIT COURT OPINIONS

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

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

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

(Code 1950, § 8-129; 1977, c. 617.)

REVISERS' NOTE.

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

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

CASE NOTES

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

CIRCUIT COURT OPINIONS

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

Article 2. Special Provisions.

§ 8.01-8. How minors may sue.

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

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

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

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

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

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

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

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

I. DECISIONS UNDER CURRENT LAW.

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

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

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

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

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

II. DECISIONS UNDER PRIOR LAW.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CIRCUIT COURT OPINIONS

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

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

OPINIONS OF THE ATTORNEY GENERAL

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

A suit wherein a person under a disability is a party defendant shall not be stayed because of such disability, but the court in which the suit is pending, or the clerk thereof, shall appoint a discreet and competent attorney-at-law as guardian ad litem to such defendant, whether the defendant has been served with process or not. If no such attorney is found willing to act, the court shall appoint some other discreet and proper person as guardian ad litem. Any guardian ad litem so appointed shall not be liable for costs. Every guardian ad litem shall faithfully represent the estate or other interest of the person under a disability for whom he is appointed, and it shall be the duty of the court to see that the interest of the defendant is so represented and protected. Whenever the court is of the opinion that the interest of the defendant so requires, it shall remove any guardian ad litem and appoint another in his stead. When, in any case, the court is satisfied that the guardian ad litem has rendered substantial service in representing the interest of the person under a disability, it may allow the guardian reasonable compensation therefor, and his actual expenses, if any, to be paid out of the estate of the defendant. However, if the defendant's estate is inadequate for the purpose of paying compensation and expenses, all, or any part thereof, may be taxed as costs in the proceeding. In a civil action against an incarcerated felon for damages arising out of a criminal act, the compensation and expenses of the guardian ad litem shall be paid by the Commonwealth out of the state treasury from the appropriation for criminal charges. If judgment is against the incarcerated felon, the amount allowed by the court to the guardian ad litem shall be taxed against the incarcerated felon as part of the costs of the proceeding, and if collected, the same shall be paid to the Commonwealth. By order of the court, in a civil action for divorce from an incarcerated felon, the compensation and expenses of the guardian ad litem shall be paid by the Commonwealth out of the state treasury from the appropriation for criminal charges if the crime (i) for which the felon is incarcerated occurred after the date of the marriage for which the divorce is sought, (ii) for which the felon is incarcerated was committed against the felon's spouse, child, or stepchild and involved physical injury, sexual assault, or sexual abuse, and (iii) resulted in incarceration subsequent to conviction and the felon was sentenced to confinement for more than one year. The amount allowed by the court to the guardian ad litem shall be taxed against the incarcerated felon as part of the costs of the proceeding, and if collected, the same shall be paid to the Commonwealth.
Notwithstanding the provisions of subsection A or the provisions of any other law to the contrary, in any suit wherein a person under a disability is a party and is represented by an attorney-at-law duly licensed to practice in this Commonwealth, who shall have entered of record an appearance for such person, no guardian ad litem need be appointed for such person unless the court determines that the interests of justice require such appointment; or unless a statute applicable to such suit expressly requires that the person under a disability be represented by a guardian ad litem. The court may, in its discretion, appoint the attorney of record for the person under a disability as his guardian ad litem, in which event the attorney shall perform all the duties and functions of guardian ad litem.
Any judgment or decree rendered by any court against a person under a disability without a guardian ad litem, but in compliance with the provisions of this subsection, shall be as valid as if the guardian ad litem had been appointed.

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

REVISERS' NOTE.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CASE NOTES

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

I. DECISIONS UNDER CURRENT LAW.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II. DECISIONS UNDER PRIOR LAW.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CIRCUIT COURT OPINIONS

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

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

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

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

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

OPINIONS OF THE ATTORNEY GENERAL

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

§ 8.01-10. Joinder of tenants in common.

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

(Code 1950, § 8-90; 1977, c. 617.)

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

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

A bond, note, or other written obligation to a person or persons who, or some of whom, are dead at the time of its execution may be proceeded on in the name of the personal representative of such person, or the survivors or survivor, or of the representative of the last survivor of such persons.
If one person bound either jointly or as a partner with another by a judgment, bond, note, or otherwise for the payment of a debt, or the performance or forbearance of an act, or for any other thing, die in the lifetime of such other, the representative of the decedent may be charged in the same manner as the decedent might have been charged, if those bound jointly or as partners, had been bound severally as well as jointly, otherwise than as partners.
(Code 1950, §§ 8-92, 8-93; 1977, c. 617.)

REVISERS' NOTE.

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

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

________

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

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

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

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

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

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

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

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

CASE NOTES

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

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

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

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

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

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

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

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

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

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

(Code 1950, § 8-93.1; 1977, c. 617.)

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

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

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

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

CASE NOTES

I. Decisions Under Prior Law.

I. DECISIONS UNDER PRIOR LAW.

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

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

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

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

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

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

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

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

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

As to equitable jurisdiction, see § 8.01-33 .

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

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

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

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

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

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

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

CASE NOTES

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

I. GENERAL CONSIDERATION.

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

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

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

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

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

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

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

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

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

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

II. WHAT MAY BE ASSIGNED.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

III. WHAT CONSTITUTES AN ASSIGNMENT.

A. IN GENERAL.

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

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

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

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

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

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

B. NECESSITY FOR CONSIDERATION.

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

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

C. NOTICE.

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

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

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

IV. EFFECT OF ASSIGNMENT.

A. ASSIGNEE TAKES SUBJECT TO EQUITIES AND SET-OFFS.

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

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

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

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

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

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

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

B. RIGHT TO SUE.

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

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

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

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

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

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

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

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

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

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

CIRCUIT COURT OPINIONS

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

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

OPINIONS OF THE ATTORNEY GENERAL

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

§ 8.01-14. Suit against assignor.

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

(Code 1950, § 8-95; 1977, c. 617.)

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

CASE NOTES

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

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

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

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

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

REVISERS' NOTE.

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

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

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

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

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

CASE NOTES

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

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

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

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

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

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

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

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

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

In any legal proceeding commenced anonymously, any party may move for an order concerning the propriety of anonymous participation in the proceeding. The trial court may allow maintenance of the proceeding under a pseudonym if the anonymous litigant discharges the burden of showing special circumstances such that the need for anonymity outweighs the public's interest in knowing the party's identity and outweighs any prejudice to any other party. The court may consider whether the requested anonymity is intended merely to avoid the annoyance and criticism that may attend any litigation or is to preserve privacy in a sensitive and highly personal matter; whether identification poses a risk of retaliatory physical or mental harm to the requesting party or to innocent nonparties; the ages of the persons whose privacy interests are sought to be protected; whether the action is against a governmental or private party; and the risk of unfairness to other parties if anonymity is maintained.
If the court initially permits a party to proceed anonymously, the issue of the propriety of continued anonymous participation in the proceedings may be raised at any stage of the litigation when circumstances warrant a reconsideration of the issue. In all cases, all parties have the right to know the true identities of all other parties under such provisions of confidentiality as the court may deem appropriate.
If the court orders that the anonymous litigant be identified, the pleadings and any relevant dockets shall be reformed to reflect the party's true name, and the identification shall be deemed to relate back to the date of filing of the proceeding by the anonymous party.
In any legal proceeding in which a party is proceeding anonymously, the court shall enter appropriate orders to afford all parties the rights, procedures and discovery to which they are otherwise entitled.
(2003, c. 572.)

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

CASE NOTES

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

CIRCUIT COURT OPINIONS

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

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

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

Notwithstanding the provisions of § 8.01-428 , in any civil action or proceeding in which the defendant does not make an appearance, the court shall not enter a judgment by default until the plaintiff files with the court an affidavit (i) stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or (ii) if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service. Subject to the provisions of § 8.01-3 , the Supreme Court shall prescribe the form of such affidavit, or the requirement for an affidavit may be satisfied by a written statement, declaration, verification or certificate, subscribed and certified or declared to be true under penalty of perjury. Any judgment by default entered by any court in any civil action or proceeding in violation of subchapter II of the Servicemembers Civil Relief Act (50 U.S.C. § 3901 et seq.) may be set aside as provided by the Act. Failure to file an affidavit shall not constitute grounds to set aside an otherwise valid default judgment against a defendant who was not, at the time of service of process or entry of default judgment, a servicemember as defined in 50 U.S.C. § 3911.
Where appointment of counsel is required pursuant to 50 U.S.C. § 3931 or 3932 or another section of the Servicemembers Civil Relief Act, the court may assess reasonable attorney fees and costs against any party as the court deems appropriate, including a party aggrieved by a violation of the Act, and shall direct in its order which of the parties to the case shall pay such fees and costs. Such fees and costs shall not be assessed against the Commonwealth unless it is the party that obtains the judgment. Any attorney fees assessed pursuant to this subsection shall not exceed $125, unless the court deems a higher amount appropriate.
The appointed counsel may issue a subpoena duces tecum for all discoverable electronic and print files, records, documents, and memoranda regarding the transactional basis for the suit. If requested in the subpoena, the plaintiff shall also deliver all documents or information concerning the location of the servicemember.
Counsel appointed pursuant to the Servicemembers Civil Relief Act shall not be selected by the plaintiff or have any affiliation with the plaintiff. However, counsel for the plaintiff may provide a list of attorneys familiar with the provisions of the Servicemembers Civil Relief Act upon the request of the court.
(2004, c. 381; 2005, c. 909; 2016, c. 643; 2019, c. 454.)

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

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

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

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

Article 3. Death or Change of Parties.

§ 8.01-16. New parties may have continuance.

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

(Code 1950, § 8-150; 1977, c. 617.)

REVISERS' NOTE.

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

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

CASE NOTES

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

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

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

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

REVISERS' NOTE.

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

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

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

§ 8.01-18. When suit discontinued unless revived.

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

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

REVISERS' NOTE.

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

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

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

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

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

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

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

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

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

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

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

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

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

CASE NOTES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CASE NOTES

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

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

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

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

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

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

CIRCUIT COURT OPINIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Code 1950, § 8-145; 1977, c. 617.)

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

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

CASE NOTES

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

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

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

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

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

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

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

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

(Code 1950, § 8-146; 1977, c. 617.)

REVISERS' NOTE.

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

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

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

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

CASE NOTES

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

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

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

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

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

REVISERS' NOTE.

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

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

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

Article 4. Writ of Scire Facias Abolished.

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

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

(1977, c. 617.)

REVISERS' NOTE.

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

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

Chapter 3. Actions.

Article 1.

Survival and Assignment of Causes of Actions.

8.01-25.Survival of causes of action.
8.01-26.Assignment of causes of action.

Article 2.

Actions on Contracts Generally.

8.01-27.Civil action on note or writing promising to pay money.
8.01-27.1.Additional recovery in certain civil actions concerning checks or rejected electronic funds transfers.
8.01-27.2.Civil recovery for giving bad check.
8.01-27.3.Evidence in actions regarding issuance of bad check.
8.01-27.4.Civil recovery for professional services.
8.01-27.5.Duty of in-network providers to submit claims to health insurers; liability of covered patients for unbilled health care services.
8.01-28.When judgment to be given in action upon contract or note unless defendant appears and denies claim under oath.
8.01-29.Procedure in actions on annuity and installment bonds, and other actions for penalties for nonperformance.
8.01-30.Procedure in actions on contracts made by several persons.
8.01-31.Accounting in equity.
8.01-32.Action on lost evidences of debt.
8.01-33.Equitable relief in certain cases.

Article 3.

Injury to Person or Property.

8.01-34.When contribution among wrongdoers enforced.
8.01-35.Damages for loss of income not diminished by reimbursement.
8.01-35.1.Effect of release or covenant not to sue in respect to liability and contribution.
8.01-36.(Effective until January 1, 2022) Joinder of action of tort to infant with action for recovery of expenses incurred thereby and claim for recovery of expenses by infant.
8.01-36.(Effective January 1, 2022) Joinder of action of tort to infant with action for recovery of expenses incurred thereby and claim for recovery of expenses by infant.
8.01-37.Recovery of lost wages in action for injuries to emancipated infant.
8.01-37.1.Claims for medical services provided by United States; proof of reasonable value.
8.01-38.Tort liability of hospitals.
8.01-38.1.Limitation on recovery of punitive damages.
8.01-39.Completion or acceptance of work not bar to action against independent contractor for personal injury, wrongful death or damage to property.
8.01-40.Unauthorized use of name or picture of any person; punitive damages; statute of limitations.
8.01-40.1.Action for injury resulting from violation of Computer Crimes Act; limitations.
8.01-40.2.Unsolicited transmission of advertising materials by facsimile machine.
8.01-40.3.Unauthorized dissemination, etc., of criminal history record information; civil action.
8.01-40.4.Civil action for unlawful creation of image of another or unlawful dissemination or sale of images of another.
8.01-41.Wrongful distraint, attachment.
8.01-42.Loss or injury to clothing in dyeing, dry cleaning, or laundering.
8.01-42.1.Civil action for racial, religious, or ethnic harassment, violence or vandalism.
8.01-42.2.Liability of guest for hotel damage.
8.01-42.3.Civil action for stalking.
8.01-42.4.Civil action for trafficking in persons.
8.01-42.5.Civil action for female genital mutilation.
8.01-43.Action against parent for damage to public property by minor.
8.01-44.Action against parent for damage to private property by minor.
8.01-44.1.Immunity from civil liability of members of certain committees, etc.
8.01-44.2.Action against physician for vaccine-related injury or death.
8.01-44.3.Divulgence of communications by qualified interpreters and communications assistants.
8.01-44.4.Action for shoplifting and employee theft.
8.01-44.5.Punitive damages for persons injured by intoxicated drivers.
8.01-44.6.Action for injury to cemetery property.
8.01-44.7.Action for tampering with metering device and diverting service.

Article 4.

Defamation.

8.01-45.Action for insulting words.
8.01-46.Justification and mitigation of damages.
8.01-46.1.Disclosure of employment-related information; presumptions; causes of action; definitions.
8.01-47.Immunity of persons investigating or reporting certain incidents at schools.
8.01-48.Mitigation in actions against newspapers, etc.
8.01-49.Defamatory statements in radio and television broadcasts.
8.01-49.1.Liability for defamatory material on the Internet.

Article 5.

Death by Wrongful Act.

8.01-50.Action for death by wrongful act; how and when to be brought.
8.01-50.1.Certification of expert witness opinion at time of service of process.
8.01-51.No action when deceased has compromised claim.
8.01-52.Amount of damages.
8.01-52.1.Admissibility of expressions of sympathy.
8.01-53.Class and beneficiaries; when determined.
8.01-54.Judgment to distribute recovery when verdict fails to do so.
8.01-55.Compromise of claim for death by wrongful act.
8.01-56.When right of action not to determine nor action to abate.

Article 6.

Injuries to Railroad Employees.

8.01-57.Liability of railroads for injury to certain employees.
8.01-58.Contributory negligence no bar to recovery; violation of safety appliance acts.
8.01-59.Assumption of risk; violation of safety appliance acts.
8.01-60.Contracts exempting from liability void; set-off of insurance.
8.01-61.Definition of "common carrier" as used in article.
8.01-62.Action may embrace liability under both State and federal acts.

Article 7.

Motor Vehicle Accidents.

8.01-63.Liability for death or injury to guest in motor vehicle.
8.01-64.Liability for negligence of minor.
8.01-65.Defense of lack of consent of owner.
8.01-66.Recovery of damages for loss of use of vehicle.
8.01-66.1.Remedy for arbitrary refusal of motor vehicle insurance claim.
8.01-66.1:1.Subrogation claims by underinsured motorist benefits insurer.

Article 7.1.

Lien for Hospital, Medical and Nursing Services.

8.01-66.2.Lien against person whose negligence causes injury.
8.01-66.3.Lien inferior to claim of attorney or personal representative.
8.01-66.4.Subrogation.
8.01-66.5.Written notice required.
8.01-66.6.Liability for reasonable charges for services.
8.01-66.7.Hearing and disposal of claim of unreasonableness.
8.01-66.8.Petition to enforce lien.
8.01-66.9.Lien in favor of Commonwealth, its programs, institutions or departments on claim for personal injuries.
8.01-66.9:1.Lien against recovery for medical treatment provided to prisoner.
8.01-66.10.Death claims settled by compromise or suit.
8.01-66.11.Necessity for settlement or judgment.
8.01-66.12.Term physician to include chiropractor.

Article 8.

Actions for the Sale, Lease, Exchange,

Redemption and Other Disposition

of Lands of Persons Under

a Disability.

8.01-67.Definitions; persons under a disability; fiduciary.
8.01-68.Jurisdiction.
8.01-69.Commencement of suit; parties.
8.01-70, 8.01-71. [Repealed.]
8.01-72.When death to abate such suit.
8.01-73.Guardian ad litem to be appointed.
8.01-74.Leases on behalf of persons under disability; new leases.
8.01-75.Who not to be purchaser.
8.01-76.How proceeds from disposition to be secured and applied; when same may be paid over.
8.01-77.What proceeds of sale to pass as real estate.
8.01-78.Alternate procedure for sale of real estate of person under disability.
8.01-79.Same; reference of petition to commissioner.
8.01-80.Same; action of court on report; application of proceeds of transaction.

Article 9.

Partition.

8.01-81.Who may compel partition of land; jurisdiction; validation of certain partitions of mineral rights; when shares of two or more laid off together.
8.01-81.1.Determination of value.
8.01-82.[Repealed.]
8.01-83.Allotment to one or more parties, or sale, in lieu of partition.
8.01-83.1.Open-market sale, sealed bids, or auction.
8.01-83.2.Notice by posting.
8.01-83.3.Commissioners.
8.01-84.Application of proceeds of sale to payment of lien.
8.01-85.Disposition of share in proceeds of person under disability.
8.01-86.[Repealed.]
8.01-87.Validation of certain partitions prior to act of 1922.
8.01-88.Decree of partition to vest legal title.
8.01-89.When proceeds of sale deemed personal estate.
8.01-90.When name or share of parties unknown.
8.01-91.Effect of partition or sale on lessee's rights.
8.01-92.Allowance of attorneys' fees out of unrepresented shares.
8.01-93.Partition of goods, etc., by sale, if necessary.

Article 10.

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

8.01-94.When sold, leased or exchanged.
8.01-95.Procedure in such case.

Article 11.

General Provisions for Judicial Sales.

8.01-96.Decree for sale; how made; bond of commissioner.
8.01-97.Delinquent taxes to be ascertained.
8.01-98.Sales of land when purchase price insufficient to pay taxes, etc.
8.01-99.Bond required of special commissioner for sale.
8.01-100.Liability of clerk for false certificate or failure to give bond.
8.01-101.Purchasers relieved of liability for purchase money paid to such commissioner.
8.01-102.Purchasers not required to see to application of purchase money.
8.01-103.Special commissioner or other person appointed to do so to receive purchase money, etc.; liability of clerk for failure to give notice of appointment.
8.01-104.[Repealed.]
8.01-105.Rule against special commissioner, purchaser, etc., for judgment for amounts due.
8.01-106.How cause heard upon rule and judgment rendered.
8.01-107.Trial by jury of issues made upon rule.
8.01-108.When sureties of commissioner, purchaser, etc., proceeded against by rule.
8.01-109.Commission for selling, collecting, etc.; each piece of property to constitute separate sale.
8.01-110.Appointment of special commissioner to execute deed, etc.; effect of deed.
8.01-111.What such deed to show.
8.01-112.Reinstatement of cause to appoint special commissioner to make deed.
8.01-113.When title of purchaser at judicial sale not to be disturbed.

Article 12.

Detinue.

8.01-114.When property to be taken by officer; summary of evidence, affidavits and report to be filed.
8.01-115.Bond required as prerequisite.
8.01-116.Return of property to defendant or other claimant.
8.01-117.Exceptions to sufficiency of bonds.
8.01-118.[Repealed.]
8.01-119.Hearing to review issuance of order or process under § 8.01-114 or to consider request for such order or process.
8.01-120.No verdict as to some items; omission of price or value.
8.01-121.Final judgment.
8.01-122.Charges for keeping property.
8.01-123.Recovery of damages sustained for property withheld during appeal.

Article 13.

Unlawful Entry and Detainer.

8.01-124.Motion for judgment in circuit court for unlawful entry or detainer.
8.01-125.When summons returnable to circuit court; jury.
8.01-126.Summons for unlawful detainer issued by magistrate or clerk or judge of a general district court.
8.01-127, 8.01-127.1. [Repealed.]
8.01-128.Verdict and judgment; damages.
8.01-129.Appeal from judgment of general district court.
8.01-130.Judgment not to bar action of trespass, ejectment, or unlawful detainer.
8.01-130.01.(Effective January 1, 2022) Unlawful detainer; expungement.

Article 13.1.

Warrants in Distress.

8.01-130.1.Remedy for rent and for use and occupation.
8.01-130.2.Who may recover rent or compensation.
8.01-130.3.Who is liable for rent.
8.01-130.4.When and by whom distress made.
8.01-130.5.Procedure for trial on warrant in distress.
8.01-130.6.On what goods levied; to what extent goods liable; priorities between landlord and other lienors.
8.01-130.7.Procedure when distress levied and tenant unable to give forthcoming bond; what defense may be made.
8.01-130.8.Review of decision to issue ex parte order or process; claim of exemption.
8.01-130.9.On what terms purchasers and lienors inferior to landlord may remove goods; certain liens not affected.
8.01-130.10.When goods of a sublessee may be removed from leased premises.
8.01-130.11.When officer may enter by force to levy distress or attachment.
8.01-130.12.When distress not unlawful because of irregularity, etc.
8.01-130.13.Return of execution; process of sale thereunder.

Article 14.

Ejectment.

8.01-131.Action of ejectment retained; when and by whom brought.
8.01-132.What interest and right plaintiff must have.
8.01-133.Who shall be defendants; when and how landlord may defend.
8.01-134.How action commenced and prosecuted.
8.01-135.What is to be stated in motion for judgment.
8.01-136.How premises described.
8.01-137.Plaintiff to state how he claims.
8.01-138.There may be several counts and several plaintiffs.
8.01-139.What proof by plaintiff is sufficient.
8.01-140.Effect of reservation in deed; burden of proof.
8.01-141.When action by cotenants, etc., against cotenants, what plaintiff to prove.
8.01-142.Verdict when action against several defendants.
8.01-143.When there may be several judgments against defendants.
8.01-144.Recovery of part of premises claimed.
8.01-145.When possession of part not possession of whole.
8.01-146.When vendee, etc., entitled to conveyance of legal title, vendor cannot recover.
8.01-147.When mortgagee or trustee not to recover.
8.01-148.Right of defendant to resort to equity not affected.
8.01-149.Verdict when jury finds for plaintiffs or any of them.
8.01-150.Verdict when any plaintiff has no right.
8.01-151.How verdict to specify premises recovered.
8.01-152.How verdict to specify undivided interest or share.
8.01-153.Verdict to specify estate of plaintiff.
8.01-154.When right of plaintiff expires before trial, what judgment entered.
8.01-155.How judgment for plaintiff entered.
8.01-156.Authority of sheriffs, etc., to store and sell personal property removed from premises; recovery of possession by owner; disposition or sale.
8.01-157.[Repealed.]
8.01-158.How claim of plaintiff for profits and damages assessed.
8.01-159.When court to assess damages.
8.01-160.Defendant to give notice of claim for improvements.
8.01-161.How allowed.
8.01-162.Postponement of assessment and allowance.
8.01-163.Judgment to be conclusive.
8.01-164.Recovery of mesne profits, etc., not affected.
8.01-165.Writ of right, etc., abolished.

Article 15.

Improvements.

8.01-166.How defendant may apply therefor, and have judgment suspended.
8.01-167.How damages of plaintiff assessed.
8.01-168.For what time.
8.01-169.How value of improvements determined in favor of defendant.
8.01-170.If allowance for improvements exceed damages, what to be done.
8.01-171.Verdict for balance, after offsetting damages against improvements.
8.01-172.Balance for defendant a lien on the land.
8.01-173.How tenant for life, paying for improvements, reimbursed.
8.01-174.Exception as to mortgagees and trustees.
8.01-175.When plaintiff may require his estate only to be valued; how determined; how he may elect to relinquish his title to defendant.
8.01-176.How payment of such value to be made by defendant; when land sold therefor.
8.01-177.When such value to be deemed real estate.
8.01-178.When and how defendant, if evicted, may recover from plaintiff amount paid.

Article 15.1.

Waste.

8.01-178.1.Waste; who is liable.
8.01-178.2.Civil action for waste; double damages.
8.01-178.3.Waste for tenant to sell or remove manure from leased premises.
8.01-178.4.Waste committed during pendency of action.

Article 16.

Establishing Boundaries to Land.

8.01-179.Motion for judgment to establish boundary lines.
8.01-180.Parties defendant; pleadings.
8.01-181.Surveys.
8.01-182.Claims to rents, etc., not considered.
8.01-183.Recordation and effect of judgment.

Article 17.

Declaratory Judgments.

8.01-184.Power to issue declaratory judgments.
8.01-184.1.Declaratory judgment to adjudicate constitutional nexus.
8.01-185.Venue.
8.01-186.Further relief.
8.01-187.Commissioners or condemnation jurors to determine compensation for property taken or damaged.
8.01-188.Jury trial.
8.01-189.Injunction.
8.01-190.Costs.
8.01-191.Construction of article.

Article 18.

Recovery of Claims Against the Commonwealth of Virginia.

8.01-192.How claims to be prosecuted.
8.01-193.Defense and hearing.
8.01-194.Jury may be impaneled; judgment.
8.01-195.No judgment to be paid without special appropriation.

Article 18.1.

Tort Claims Against the Commonwealth of Virginia.

8.01-195.1.Short title.
8.01-195.2.Definitions.
8.01-195.3.Commonwealth, transportation district or locality liable for damages in certain cases.
8.01-195.4.Jurisdiction of claims under this article; right to jury trial; service on Commonwealth or locality; amending amount of claim.
8.01-195.5.Settlement of certain cases.
8.01-195.6.Notice of claim.
8.01-195.7.Statute of limitations.
8.01-195.8.Release of further claims.
8.01-195.9.Claims evaluation program.

Article 18.2.

Compensation for Wrongful Incarceration for a Felony Conviction.

8.01-195.10.Purpose; action by the General Assembly required; definitions.
8.01-195.11.Compensation for wrongful incarceration.
8.01-195.12.Conditions for continued compensation.
8.01-195.13.Compensation for certain intentional acts.

Article 19.

Actions by the Commonwealth.

8.01-196.Comptroller to institute proceedings.
8.01-197.In what name; when not to abate.
8.01-198.Action, against whom instituted.
8.01-199.Judgment, nature of.
8.01-200.Mistakes against State corrected.
8.01-201.Execution; real estate to be sold.
8.01-202.Execution, to whom issued.
8.01-203.Goods and chattels liable before real estate.
8.01-204.Notice of sale of real estate; when sale to be made.
8.01-205.How sale made.
8.01-206.Terms of sale.
8.01-207.Who to collect purchase money and make deed; disposition of proceeds of sale.
8.01-208.When successor of officer to make deed.
8.01-209.Bond for purchase money to have force of judgment.
8.01-210.Judgment against deceased obligors.
8.01-211.When venditioni exponas issued to sheriff of adjacent county; what to contain.
8.01-212.Officer to deliver to sheriff goods and chattels levied on.
8.01-213.Where same to be sold.
8.01-214.Where real estate to be sold.
8.01-215.Return of officer when sale not made because of prior encumbrance.
8.01-216.Comptroller's power to adjust old claims.

Article 19.1.

Virginia Fraud Against Taxpayers Act.

8.01-216.1.Citation.
8.01-216.2.Definitions.
8.01-216.3.False claims; civil penalty.
8.01-216.4.Attorney General; investigation, civil action.
8.01-216.5.Civil actions filed by private persons; Commonwealth may intervene.
8.01-216.6.Rights of private plaintiff and Commonwealth.
8.01-216.7.Award to private plaintiff.
8.01-216.8.Certain actions barred; relief from employment discrimination; waiver of sovereign immunity.
8.01-216.9.Procedure; statute of limitations.
8.01-216.10.Civil investigative demands; issuance; sharing information.
8.01-216.11.Civil investigative demands; contents and deadlines.
8.01-216.12.Civil investigative demands; protected material or information.
8.01-216.13.Civil investigative demands; service and jurisdiction.
8.01-216.14.Civil investigative demands; documentary material.
8.01-216.15.Civil investigative demands; interrogatories.
8.01-216.16.Civil investigative demands; oral examinations.
8.01-216.17.Civil investigative demands; custodian of documents; answers.
8.01-216.18.Civil investigative demands; judicial proceedings for noncompliance.
8.01-216.19.Application of the Rules of the Supreme Court.

Article 20.

Change of Name.

8.01-217.How name of person may be changed.

Article 21.

Miscellaneous Provisions.

8.01-218.Replevin abolished.
8.01-219.Effect of judgment in trover.
8.01-219.1.Responsibility of possessor of real property for harm to trespasser.
8.01-220.Action for alienation of affection, breach of promise, criminal conversation and seduction abolished.
8.01-220.1.Defense of interspousal immunity abolished as to certain causes of action arising on or after July 1, 1981.
8.01-220.1:1.Civil immunity for officers, partners, members, managers, trustees and directors of certain tax exempt organizations.
8.01-220.1:2.Civil immunity for teachers under certain circumstances.
8.01-220.1:3.Immunity for members of church, synagogue or religious body.
8.01-220.1:4.Civil immunity for officers and directors of certain nonprofit organizations.
8.01-220.1:5.Defense of intra-family immunity abolished for wrongful death actions.
8.01-220.2.Spousal liability for medical care.
8.01-221.Damages from violation of statute, remedy therefor and penalty.
8.01-221.1.Unestablished business damages; lost profits.
8.01-221.2.Rescission; undue influence; attorney fees.
8.01-222.[Repealed.]
8.01-223.Lack of privity no defense in certain cases.
8.01-223.1.Use of constitutional rights.
8.01-223.2.Immunity of persons for statements made at public hearing or communicated to third party.
8.01-224.Defense of governmental immunity not available to certain persons in actions for damages from blasting, etc.
8.01-225.(Effective until January 1, 2022) Persons rendering emergency care, obstetrical services exempt from liability.
8.01-225.(Effective January 1, 2022, until July 1, 2022) Persons rendering emergency care, obstetrical services exempt from liability.
8.01-225.(Effective July 1, 2022) Persons rendering emergency care, obstetrical services exempt from liability.
8.01-225.01.Certain immunity for health care providers during disasters under specific circumstances.
8.01-225.02.Certain liability protection for health care providers during disasters.
8.01-225.03.Certain immunity for certain hospices, home care organizations, private providers, assisted living facilities, and adult day care centers during a disaster under specific circumstances.
8.01-225.1.Immunity for team physicians.
8.01-225.2.Immunity for those rendering emergency care to animals.
8.01-225.3.Immunity for volunteer first responders en route to an emergency.
8.01-226.Duty of care to law-enforcement officers, firefighters, etc.
8.01-226.1.Civil immunity when participating in Lawyers Helping Lawyers.
8.01-226.2.Civil immunity for licensed professional engineers and licensed architects participating in rescue or relief assistance.
8.01-226.3.Civil immunity for officers, directors and members of certain crime information-gathering organizations.
8.01-226.4.Civil immunity for hospice volunteers.
8.01-226.5.Immunity for installers and inspectors of child restraint devices.
8.01-226.5:1.Civil immunity for school board employees supervising self-administration of certain medication.
8.01-226.5:2.Immunity of hospital and emergency medical services agency personnel for the acceptance of certain infants.
8.01-226.6.[Repealed.]
8.01-226.7.Owner and agent compliance with residential lead-based paint notification; maintenance immunity.
8.01-226.8.Civil immunity for public and nonprofit corporation officials and private volunteers participating in certain programs for probationers.
8.01-226.9.Exemption from civil liability in connection with arrest or detention of person suspected of shoplifting.
8.01-226.10.Civil immunity for causing the arrest of a person for a bad check.
8.01-226.11.Civil immunity for operation of victim notification program.
8.01-226.12.Duty of landlord and managing agent with respect to visible mold.
8.01-226.13.Limited standing to seek injunctive relief against manufacturing companies.
8.01-227.Remedy by motion on certain bonds given or taken by officers; notice.

Article 22.

Year 2000 Liability and Damages.

8.01-227.1 through 8.01-227.3. [Repealed.]

Article 23.

Drug Dealer Liability Act.

8.01-227.4.Definitions.
8.01-227.5.Persons who may bring action; persons against whom actions may be brought; damages recoverable.
8.01-227.6.Law-enforcement officer or agency; health care provider not liable under certain conditions.
8.01-227.7.Statute of limitations.

Article 24.

Space Flight Liability and Immunity Act.

8.01-227.8.Definitions.
8.01-227.9.Civil immunity for space flight entities.
8.01-227.10.Warning required.

Article 25.

Winter Sports Safety Act.

8.01-227.11.Definitions.
8.01-227.12.Warnings and other winter sports area operator requirements.
8.01-227.13.Winter sports area trail maps.
8.01-227.14.Freestyle terrain.
8.01-227.15.Winter sports area vehicles.
8.01-227.16.Passenger tramways.
8.01-227.17.Duties and responsibilities of winter sports participants and certain other individuals.
8.01-227.18.Helmets.
8.01-227.19.Assumption of risks.
8.01-227.20.Liability of winter sports area operator.
8.01-227.21.Common law regarding minors.
8.01-227.22.Failure to fulfill duty or responsibility not negligence per se.
8.01-227.23.Applicability of article.

Article 1. Survival and Assignment of Causes of Actions.

§ 8.01-25. Survival of causes of action.

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

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

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

REVISERS' NOTE.

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

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

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

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

________

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

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

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

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

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

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

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

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

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

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

CASE NOTES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CIRCUIT COURT OPINIONS

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

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

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

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

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

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

§ 8.01-26. Assignment of causes of action.

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

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

REVISERS' NOTE.

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

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

________

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

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

CASE NOTES

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

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

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

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

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

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

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

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

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

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

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

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

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

CIRCUIT COURT OPINIONS

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

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

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

OPINIONS OF THE ATTORNEY GENERAL

Article 2. Actions on Contracts Generally.

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

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

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

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

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

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

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

Except as otherwise provided in Chapter 12 (§ 55.1-1200 et seq.) or Chapter 14 (§ 55.1-1400 et seq.) of Title 55.1, in any civil claim or action made or brought against the drawer of a check, draft or order, payment of which has been refused by the drawee depository because of lack of funds in or credit with such drawee depository, or because such check, draft or order was returned because of a stop-payment order placed in bad faith on the check, draft or order by the drawer, the holder or his agent shall be entitled to claim, in addition to the face amount of the check (i) legal interest from the date of the check, (ii) the protest or bad check return fee, if any, charged to the holder by his bank or other depository, (iii) a processing charge of $50, and (iv) reasonable attorney's fees if awarded by the court.
Except as otherwise provided in Chapter 12 (§ 55.1-1200 et seq.) or Chapter 14 (§ 55.1-1400 et seq.) of Title 55.1, any holder of a check, draft or order, payment of which has been refused by the drawee for insufficient funds or credit or because of a stop-payment order placed in bad faith, who charges the drawer amounts in excess of those authorized in subsection A on account of payment being so refused shall, upon demand, be liable to the drawer for the lesser of (i) $50 plus the excess of the authorized amount or (ii) twice the amount charged in excess of the authorized amount.
If an electronic funds transfer has been rejected because of insufficient funds or a stop-payment order has been placed in bad faith by the authorizing party, the authorizing party and the payee shall have the same rights and remedies as if the drawer had issued a bad check under subsection B. For purposes of this subsection, "electronic funds transfer" has the same meaning as provided in 15 U.S.C. § 1693(a).
(1981, c. 230; 1992, c. 238; 1996, c. 334; 2003, c. 233; 2008, c. 489; 2009, c. 182; 2013, c. 63.)

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

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

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

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

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

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

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

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

OPINIONS OF THE ATTORNEY GENERAL

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

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

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

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

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

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

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

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

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

(2004, c. 462.)

§ 8.01-27.4. Civil recovery for professional services.

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

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

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

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

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

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

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

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

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

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

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

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

REVISERS' NOTE.

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

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

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

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

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

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

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

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

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

CASE NOTES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

OPINIONS OF THE ATTORNEY GENERAL

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

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

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

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

REVISERS' NOTE.

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

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

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

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

CASE NOTES

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

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

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

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

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

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

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

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

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

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

CASE NOTES

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

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

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

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

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

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

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

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

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

§ 8.01-31. Accounting in equity.

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

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

REVISERS' NOTE.

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

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

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

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

CASE NOTES

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

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

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

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

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

By incorporating the powers listed in § 64.1-57 [now § 64.2-105 ], a testator does not thereby exclude "all other powers granted by law" from the executor. The right to compel an accounting from trustees is such an "other power granted by law" pursuant to §§ 8.01-31 and 8.01-25 . Campbell v. Harmon, 271 Va. 590 , 628 S.E.2d 308 (2006).

Upon divorce, marital home fell within scope of section. - Upon parties' divorce, their marital home, which they had owned as tenants by the entirety, became their property as tenants in common, and thus fell within the scope of this section. Gaynor v. Hird, 15 Va. App. 379, 424 S.E.2d 240 (1992).

Reach of Gaynor . - Gaynor v. Hird, 15 Va. App. 379, 424 S.E.2d 240 (1992), which involved an accounting in equity pursuant to this section, after the parties' property was converted from ownership as tenants by the entirety to ownership as tenants in common, does not require an accounting of rental value pre-divorce when the parties own the property as tenants by the entirety. Longmyer v. Longmyer, No. 1543-94-4, 1995 Va. App. LEXIS 347 (Ct. of Appeals April 11, 1995).

Rental value award to non-occupying ex-spouse permissible. - Where upon their divorce, the parties owned marital residence as tenants in common, and husband was required to bear his share of the financial burden of owning the property, the trial court did not abuse its discretion in awarding husband one-half of the reasonable rental value of the marital home for the period it was occupied exclusively by wife following their divorce. Ashley v. Ashley, No. 0851-93-1 (Ct. of Appeals Nov. 30, 1993).

When, instead of renting it out, the co-tenant in possession occupies and uses the whole property to the exclusion of his co-tenants, and thus, in effect, becomes himself the renter, the just and true rule is to charge him with a reasonable rent for the use and occupation of the property in the condition in which it was when he received it, and to hold him accountable to his co-tenants for their just shares of such rent. Gaynor v. Hird, 15 Va. App. 379, 424 S.E.2d 240 (1992).

Non-occupying cotenant. - Because a non-occupying cotenant was never excluded or ousted from co-occupation of the property, she was not entitled to a ratable share of the fair rental value from the occupying cotenant. However, the occupying cotenant was entitled to one-half of the rental payments made by a non-owner occupant, namely the occupying cotenant's son. Daly v. Shepherd, 274 Va. 270 , 645 S.E.2d 485, 2007 Va. LEXIS 91 (2007).

Former spouse not entitled to rental value where not co-owner. - An accounting occurs and a party is entitled to the fair market rental value of property only when that party has joint ownership of the property; where the owner's former wife conceded that the property was titled solely in her former husband's name, she was not entitled to an award based on the property's rental value because she was not an owner of the property. Snider v. Snider, No. 1539-99-3, 2001 Va. App. LEXIS 19 (Ct. of Appeals Jan. 16, 2001).

Responsibility of cotenants for taxes and other liens. - Unless something more can be shown than the mere fact that one cotenant is in possession of the premises, each cotenant should be ratably responsible for taxes and other liens against the property. Jenkins v. Jenkins, 211 Va. 797 , 180 S.E.2d 516 (1971) (decided under prior law).

Cotenant who discharges an encumbrance upon common property is entitled to ratable contribution from his cotenant. Jenkins v. Jenkins, 211 Va. 797 , 180 S.E.2d 516 (1971) (decided under prior law).

The central characteristic of a tenancy in common is simply that each tenant is deemed to own by himself, with most of the attributes of individual ownership, a physically undivided part of the entire parcel. Jenkins v. Jenkins, 211 Va. 797 , 180 S.E.2d 516 (1971) (decided under prior law).

Husband entitled to evidentiary hearing to determine costs caused by former wife's delay in sale. - Where the wife's conduct delayed the sale of the marital residence, thereby allegedly causing the husband to make additional payments on the property, including the mortgage for which the husband was solely reasponsible, the husband, as tenant in common pursuant to § 20-111 , was entitled under § 8.01-31 to an evidentiary hearing as to whether the husband was entitled to contribution from the wife, who was ratably responsible for the property's costs. Morris v. Morris, No. 3173-03-4, 2004 Va. App. LEXIS 447 (Ct. of Appeals Sept. 14, 2004).

It is not the purpose of the equitable distribution scheme to deprive an aggrieved spouse of a generally recognized remedy for the misapplication or misappropriation of separate funds entrusted to the other spouse pursuant to a special relationship. McClung v. Smith, 870 F. Supp. 1384 (E.D. Va. 1994), modified, 89 F.3d 829 (4th Cir. 1996).

Spouse not exempted. - There is no authority which, in the name of furthering marital harmony, would exempt from the remedy of an accounting a spouse who has been entrusted with the separate funds of another for a limited purpose and misapplied them. McClung v. Smith, 870 F. Supp. 1384 (E.D. Va. 1994), modified, 89 F.3d 829 (4th Cir. 1996).

Class action. - Force-pooled lessors, but not voluntary lessors, met federal class certification requirements on claims for breach of fiduciary duty, conversion, and unjust enrichment arising from alleged underpayment of royalties by natural gas production companies; moreover, an equitable accounting claim was suitable for bifurcated liability and damages proceedings. Adair v. EQT Prod. Co., 320 F.R.D. 379, 2017 U.S. Dist. LEXIS 46464 (W.D. Va. 2017).

Counterclaim sufficiently stated claim for equitable accounting. - Circuit court erred in sustaining a trustee's demurrer to a remainder beneficiary's counterclaim seeking an equitable accounting pursuant to § 8.01-31 because the properly pleaded facts in the beneficiary's third amended counterclaim, accepted as true, were sufficient to state a claim that the trustee, as a fiduciary, received more than comes to her just share; the circuit court erred in considering the trustee's accounting because it was neither an exhibit accompanying the pleading nor a document produced in response to a motion craving oyer. Riverside Healthcare Ass'n v. Forbes, 281 Va. 522 , 709 S.E.2d 156 (2011).

Costs denied. - Sibling was properly ordered to bear the costs of the partition suit under § 8.01-31 where the majority of the costs related to her failed attempt to recover the property's fair rental value from three of the siblings in possession of the property. Berry v. Fitzhugh, 846 S.E.2d 901, 2020 Va. LEXIS 94 (Aug. 20, 2020).

Not applicable. - Chapter 7 debtor's one-half ownership interest in certain real property was part of bankruptcy estate because property settlement between debtor and his ex-wife was incorporated into final divorce decree and was enforceable; however, neither party was entitled to contribution from other in circumstances here. Terry v. Evans (In re Evans), 527 Bankr. 228, 2015 Bankr. LEXIS 941 (Bankr. E.D. Va. Mar. 26, 2015).

Applied in Comtois v. Rogers, 282 Va. 289 , 715 S.E.2d 1, 2011 Va. LEXIS 191 (2011).

CIRCUIT COURT OPINIONS

Accounting for marital home. - When a husband and wife divorced, their marital home, which they had owned as tenants by the entirety, became their property as tenants in common, and fell within the scope of § 8.01-31 , requiring the husband to account for one-half the fair rental value of the property, as he maintained exclusive control of it. Shaio Hon Yang Yeh v. Guang Huei Yeh, 56 Va. Cir. 439, 2001 Va. Cir. LEXIS 485 (Roanoke 2001).

Cotenants claims for reimbursement of taxes. - Where two cotenants could not assert claims for reimbursement of taxes paid by others, the remaining cotenants' exceptions to a commissioner's recommendation in a partition action were sustained. Battiste v. Smith, 64 Va. Cir. 140, 2004 Va. Cir. LEXIS 14 (Spotsylvania County 2004).

Rental proceeds. - Because co-owners had exclusive occupancy of the premises and received all of its rental proceeds, they had a responsibility to account to plaintiff for his share. Clayborne v. McClain, 72 Va. Cir. 23, 2006 Va. Cir. LEXIS 186 (Nelson County 2006).

Spouse's exceptions to a commissioner's report failed as the spouse was required to account for the post-death rents and profits of a warehouse in the spouse's capacity as a fiduciary for an intestate estate under § 8.01-31 . Estate of Spears v. Spears,, 2008 Va. Cir. LEXIS 149 (Fairfax County Nov. 3, 2008).

Applicable. - Defendant argued that the statute was not applicable because it only allowed equitable accounting against any fiduciary or by one joint tenant, tenant in common, or coparcener, but the problem with this argument was that it did not appear that the complaint relies on the memorandum of understanding; the count was pleaded in the alternative that the duties arose from the positions that defendant held, and this appeared to be sufficient, as an alternative theory, to withstand a demurrer. Daggett & Grigg, Architects, P.C. v. Daggett, 90 Va. Cir. 442, 2015 Va. Cir. LEXIS 155 (Charlottesville Aug. 18, 2015).

Not applicable. - Former employee's motion to amend his complaint against his former employers to add a claim for an accounting under § 8.01-31 was denied; as an employer had no fiduciary duty to an employee and the parties were not joint tenants, tenants in common, or coparceners, § 8.01-31 was not applicable. Studer v. Hurley, 82 Va. Cir. 406, 2011 Va. Cir. LEXIS 146 (Norfolk Mar. 29, 2011).

School board's demurrer was sustained as to the claim against it for an equitable accounting because the school board was not a fiduciary of the county. Cty. of Lancaster v. Latimore, 97 Va. Cir. 401, 2013 Va. Cir. LEXIS 228 (Lancaster County May 31, 2013).

§ 8.01-32. Action on lost evidences of debt.

A civil action may be maintained on any past-due lost bond, note, contract, open account agreement, or other written evidence of debt, provided the plaintiff verifies under oath either in open court or by affidavit that said bond, note, contract, open account agreement, or other written evidence of debt has been lost or destroyed.
Where a true and accurate copy of the written evidence of debt exists, which copy was produced in the normal course of business, the court shall accept such copy into evidence and shall give effect to its terms as if the original had been placed into evidence.
In the event of any inconsistency between this section and any applicable provisions of § 8.3A-309 , the provisions of that section shall control. (Code 1950, § 8-517; 1954, c. 333; 1964, c. 219; 1977, c. 617; 2000, c. 245; 2003, c. 125.)

REVISERS' NOTE.

The catchline of former § 8-517 has been changed to emphasize the real purpose of this statute which is to permit an action on lost instruments that were evidences of debt. The former words "or defendants" and "order awarding" were deleted as unnecessary. (With respect to the deletion of "or defendants" see § 1-13.15.) The cross reference to the UCC was corrected.

________

The 2000 amendments. - The 2000 amendment by c. 245 substituted "is" for "be" following "if judgment" in the first sentence of the first paragraph and substituted " § 8.3A-309 " for " § 8.3-804" in the second paragraph.

The 2003 amendments. - The 2003 amendment by c. 125 rewrote the section.

Michie's Jurisprudence. - For related discussion, see 8A M.J. Executors and Administrators, § 104; 9B M.J. Indemnity, § 3; 12A M.J. Lost Instruments and Records, §§ 2, 6, 7, 8, 9.

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

CASE NOTES

Purpose of section. - This section was enacted to authorize the maintenance of an action at law "on any past due lost bond, note, or other written evidence of debt," and to require a proper indemnity for the defendant's protection. Prior to its adoption, an action at law could be maintained on lost bonds and lost choses in action of any kind, provided they were not negotiable. If the paper was negotiable, and there was ample proof that it was destroyed, an action at law could likewise be maintained; but upon negotiable paper which was simply lost or mislaid and not destroyed, no action at law would lie. In such actions as were allowed no indemnifying bond was required. Bickers v. Pinnell, 199 Va. 444 , 100 S.E.2d 20 (1957).

Section does not affect jurisdiction of equity. - Courts of equity still have jurisdiction to enforce payment of a lost bond, although courts of law are given jurisdiction over such bonds by this section, for it is well settled that courts of equity having once acquired jurisdiction never lose it because jurisdiction of the same matters is given to courts of law, unless the statute conferring such jurisdiction uses prohibitory or restrictive words. Kabler v. Spencer, 114 Va. 589 , 77 S.E. 504 (1913).

Claim against decedent's estate evidenced by lost instrument. - This section does not expressly or impliedly deprive a commissioner of accounts of the express and specific authority conferred on him under §§ 64.1-171, 64.1-172 and 64.1-173 [now §§ 64.2-550 and 64.2-552 ] to receive proof of debts and demands against a decedent or his estate in the settlement of the accounts of a personal representative of a decedent. Bickers v. Pinnell, 199 Va. 444 , 100 S.E.2d 20 (1957).

There was no merit in the contention that because the note evidencing a debt of a decedent was lost, the creditor was required to bring an action under this section against the executor, and precluded from proving her claim before a commissioner of accounts under §§ 64.1-171 through 64.1-173 [now §§ 64.2-550 and 64.2-552 ]. Bickers v. Pinnell, 199 Va. 444 , 100 S.E.2d 20 (1957).

§ 8.01-33. Equitable relief in certain cases.

A court shall not grant equitable relief in a suit upon a bond, note, or writing, by an assignee or holder thereof, unless it appears that the plaintiff had no adequate remedy thereon at law.

(Code 1950, § 8-518; 1977, c. 617; 2005, c. 681.)

Cross references. - As to right of assignee to sue in his own name, see § 8.01-13 .

The 2005 amendments. - The 2005 amendment by c. 681, effective January 1, 2006, deleted "of equity" preceding "shall," substituted "grant equitable relief in a suit" for "have jurisdiction of a suit," "it appears" for "it appear" and "had no" for "had not an."

Michie's Jurisprudence. - For related discussion, see 2A M.J. Assignments, § 38; 7A M.J. Equity, §§ 6, 10.

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

CASE NOTES

The object of this section was to provide against the abuse of crowding the chancery court with suits by assignees upon plain bonds, but out of abundant caution the provision was extended, and very properly, to a mere transferee or holder of a bond or other writing. Winn v. Bowles, 20 Va. (6 Munf.) 23 (1817); Walters v. Farmers Bank, 76 Va. 12 (1881).

But equity, having taken jurisdiction on other grounds, will retain it. - This section was not intended to affect the principle that when the court has once rightly obtained cognizance of the controversy and of the parties, its power is effectual for complete relief. Walters v. Farmers Bank, 76 Va. 12 (1881).

And equity has jurisdiction of suit by partial assignee. - For the enforcement of payment of a part of a debt assigned by the creditor without the assent or acceptance of the debtor, there is no jurisdiction in a court of law, but such partial recovery may be had in a court of equity. Phillips v. City of Portsmouth, 112 Va. 164 , 70 S.E. 502 (1911).

Section is not applicable to promise to assume mortgage debt. - This section has no application to a suit brought upon the promise of defendants to assume the payment of a mortgage debt, which promise was implied by law from their acceptance of a writing not signed by defendants, conveying the property to them subject to the mortgage. Blanton v. Keneipp, 155 Va. 668 , 156 S.E. 413 (1931).

Article 3. Injury to Person or Property.

§ 8.01-34. When contribution among wrongdoers enforced.

Contribution among wrongdoers may be enforced when the wrong results from negligence and involves no moral turpitude.

(Code 1950, § 8-627; 1977, c. 617.)

REVISERS' NOTE.

The minor change which deleted "mere act" preceding "negligence" was made merely for clarification and does not materially alter the statute as it has been interpreted by case law.

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Law review. - For survey of Virginia law on torts for the year 1972-1973, see 59 Va. L. Rev. 1590 (1973). For survey of Virginia law on property for the year 1973-1974, see 60 Va. L. Rev. 1583 (1974). For article, "Effect of Virginia Workmen's Compensation Act upon the Right of a Third-Party Tortfeasor to Obtain Contribution from an Employer Whose Concurrent Negligence Causes Employee's Death or Injury," see 13 U. Rich L. Rev. 117 (1978). For comment, "The Covenant Not to Sue: Virginia's Effort to Bury the Common Law Rule Regarding the Release of Joint Tortfeasors," see 14 U. Rich. L. Rev. 809 (1980). For case note on contribution for antitrust contribution, see 66 Va. L. Rev. 797 (1980).

For an article, "A Model for Enhanced Risk Recovery in Tort," see 56 Wash. & Lee L. Rev. 1173 (1999).

For a note, "A Duty Not to Become a Victim: Assessing the Plaintiff's Fault in Negligent Security Actions," see 57 Wash. & Lee L. Rev. 611 (2000).

Michie's Jurisprudence. - For related discussion, see 4B M.J. Contribution and Exoneration, §§ 2, 22, 38; 18 M.J. Torts, §§ 3, 5, 6; 20 M.J. Witnesses, § 79.

CASE NOTES

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

I. DECISIONS UNDER CURRENT LAW.

Right to contribution from joint tort-feasors was statutorily created by the Virginia General Assembly in 1919. This right is codified in this section, subject now to the provisions of § 8.01-35.1 . Carickhoff v. Badger-Northland, Inc., 562 F. Supp. 160 (W.D. Va. 1983).

Before contribution will be permitted, a right of action by the plaintiff must exist as to the joint tort-feasor against whom contribution is sought. VEPCO v. Wilson, 221 Va. 979 , 277 S.E.2d 149 (1981).

A contribution plaintiff cannot recover from a contribution defendant unless the injured party could have recovered against the contribution defendant. Pierce v. Martin, 230 Va. 94 , 334 S.E.2d 576 (1985).

Contribution statute inapplicable. - Before contribution could be had, it was essential that a cause of action by the person injured lie against the alleged wrongdoer from whom contribution was sought; therefore, § 8.01-34 was inapplicable where a judicial ruling was tantamount to a holding that the injured party never had an enforceable cause of action against the target of the contribution claim. Pulte Home Corp. v. Parex, Inc., 265 Va. 518 , 579 S.E.2d 188, 2003 Va. LEXIS 51 (2003).

Because each of plaintiff's claims against defendant pled the existence of an intentional tort, defendant was not entitled to contribution from third-party defendants under § 8.01-34 . E.I. Dupont De Nemours & Co. v. Kolon Indus., 688 F. Supp. 2d 443, 2009 U.S. Dist. LEXIS 76795 (E.D. Va. 2009), motion granted by, E.I. du Pont de Nemours & Co. v. Kolon Indus., 683 F. Supp. 2d 401 (E.D. Va., 2009); motion granted by, judgment entered by E.I. du Pont de Nemours & Co. v. Kolon Indus., 2010 U.S. Dist. LEXIS 8981 (E.D. Va., Feb. 3, 2010); rev'd by E. I. du Pont de Nemours & Co. v. Kolon Indus., 637 F.3d 435 (4th Cir. Va., 2011).

The principles of contribution are equally applicable to indemnity, but the distinguishing feature of indemnity is that it must necessarily grow out of a contractual relationship. VEPCO v. Wilson, 221 Va. 979 , 277 S.E.2d 149 (1981).

Third-party plaintiff may bring action for contribution, despite the fact that no payment has been made. Rambone v. Critzer, 548 F. Supp. 660 (W.D. Va. 1982).

Indemnification between multiple parties. - In an action by building owners against a developer seeking contractual indemnification for damage to their buildings, where the developer sued a general contractor, who sued, inter alia, an earth-moving subcontractor, who sued a material supplier, who sued building contractors seeking contribution, the building contractors' motions to dismiss under Fed. R. Civ. P. 12(b)(6) were granted where the material supplier's contribution claims against the building contractors could not be brought under Fed. R. Civ. P. 14(a) because § 8.01-34 did not give a right of contribution to the material supplier. Kohl's Dep't Stores, Inc. v. Target Stores, Inc., 214 F.R.D. 406, 2003 U.S. Dist. LEXIS 5373 (E.D. Va. 2003).

Where liability arose out of act involving moral turpitude. - International matchmaking agency and its owner were not entitled to contribution due to their moral turpitude in not telling their client, a Ukrainian woman, about a battered spouse waiver, but instead telling her that her only options were to work things out with her new abusive husband or be deported back to the Ukraine. Fox v. Encounters Int'l, - F.3d - , 2006 U.S. App. LEXIS 9269 (4th Cir. Apr. 13, 2006).

Sufficiency of pleading. - Manufacturer's motion to dismiss a subcontractor's third-party negligence action was denied in part because the subcontractor met both elements of a claim for contribution under Virginia law. Claim for contribution was available to joint tortfeasors despite the general economic loss rule. AMCO Water Metering Sys. v. Travelers Cas. Sur. Co. of Am., - F. Supp. 2d - , 2003 U.S. Dist. LEXIS 17758 (W.D. Va. Sept. 30, 2003).

Erroneous jury instructions on apportionment. - Trial court in a physician's contribution action under §§ 8.01-34 and 8.01-35.1 against a pharmacy and its pharmacist erred when it gave the jury erroneous instructions on the issues of the reasonableness of an underlying settlement and the apportionment of damages between the parties, such that a new trial was required because the instructions bore on the issues of both liability and damages; apportionment between the parties should not have been before the jury where the evidence indicated that the injuries suffered by the patient in the underlying action were indivisible, such that a finding of joint liability rendered each party liable for the full injury, and as there was nothing to rebut the physician's evidence as to the reasonableness of the settlement, that issue also should not have been a subject for the jury's consideration. Sullivan v. Robertson Drug Co., 273 Va. 84 , 639 S.E.2d 250, 2007 Va. LEXIS 16 (2007).

Applied in Allianz Ins. Co. v. Garrett, 153 F.R.D. 89 (E.D. Va. 1994).

II. DECISIONS UNDER PRIOR LAW.

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

This section changed the common-law rule. - At common law there was no contribution among joint tort-feasors, but that right is now given by this section. Norfolk & P. Belt Line R.R. v. Parker, 152 Va. 484 , 147 S.E. 461 (1929). See also McLaughlin v. Siegel, 166 Va. 374 , 185 S.E. 873 (1936); American Employers' Ins. Co. v. Maryland Cas. Co., 218 F.2d 335 (4th Cir. 1954).

At common law contribution was not permitted amongst joint tort-feasors. Mahone v. McGraw-Edison Co., 281 F. Supp. 582 (E.D. Va. 1968).

The doctrine of contribution is founded on principles of equity and natural justice. Hudgins v. Jones, 205 Va. 495 , 138 S.E.2d 16 (1964).

The right to contribution is based upon the equitable principle that where two or more persons are subject to a common burden it shall be borne equally. Nationwide Mut. Ins. Co. v. Minnifield, 213 Va. 797 , 196 S.E.2d 75 (1973).

The right of contribution is controlled by this section. Mahone v. McGraw-Edison Co., 281 F. Supp. 582 (E.D. Va. 1968).

But it gives a right of contribution only where the person injured has a right of action against two persons for the same indivisible injury. Though the concurring negligence of two persons may have resulted in an indivisible injury to a third, if the third person has a cause of action against only one of them, that one cannot enforce contribution from the other. The statute allowing contribution does not create any greater liability than existed before its enactment. Norfolk S.R.R. v. Gretakis, 162 Va. 597 , 174 S.E. 841 (1934).

This section gives a right of contribution only where the party damaged has a right of action against two or more parties for the same indivisible damage. In short, if the damaged party has a cause of action against only one of the parties responsible for the damage, that one cannot enforce contribution from the other. American Tobacco Co. v. Transport Corp., 277 F. Supp. 457 (E.D. Va. 1967); Laws v. Spain, 312 F. Supp. 315 (E.D. Va. 1970).

Virginia, while permitting contribution between co-tort-feasors, withholds it as against a joint offender who cannot in law be forced to answer to the plaintiff for his negligence. Drumgoole v. VEPCO, 170 F. Supp. 824 (E.D. Va. 1959).

The right of contribution is withheld against a joint tort-feasor who cannot in law be forced to answer to a plaintiff for his alleged negligence. Mahone v. McGraw-Edison Co., 281 F. Supp. 582 (E.D. Va. 1968).

This section does not create any greater liability than existed before its enactment. Laws v. Spain, 312 F. Supp. 315 (E.D. Va. 1970).

Joint tort-feasor. - Joint tort-feasor means "two or more persons jointly or severally liable in tort for the same injury to person or property." Laws v. Spain, 312 F. Supp. 315 (E.D. Va. 1970).

Recovery amongst joint tort-feasors, absent contract, is limited to contribution. Hartford Accident & Indem. Co. v. Williams, 291 F. Supp. 103 (W.D. Va. 1968).

When contribution permitted. - While no right of contribution among wrongdoers existed at common law, that right is now permitted by this section and may be enforced when the wrong is an act of negligence and involves no moral turpitude. The wrongdoer, of course, must be a joint tort-feasor; that is, the concurring negligence of both parties must have contributed to bring about the injury sustained by a third. North River Ins. Co. v. Davis, 274 F. Supp. 146 (W.D. Va. 1967), aff'd, 392 F.2d 571 (4th Cir. 1968).

When contribution a matter of right. - When parties are bound to bear a burden, and are liable from the same circumstances existing as to both, contribution is a matter of right in equity. Hudgins v. Jones, 205 Va. 495 , 138 S.E.2d 16 (1964).

The right of contribution arises only when one tort-feasor has paid or settled a claim for which other wrongdoers are also liable. Nationwide Mut. Ins. Co. v. Minnifield, 213 Va. 797 , 196 S.E.2d 75 (1973).

It does not permit contribution among participants in intentional illegal acts. - The affirmative provision of this section permitting contribution is limited to cases in which the wrong is a mere act of negligence, and the added phrase excluding acts of moral turpitude plainly shows that the legislature did not intend to extend the privilege to participants in intentional illegal acts. Carriers Ins. Exch. v. Truck Ins. Exch., 310 F.2d 653 (4th Cir. 1962).

This section did not justify contribution or indemnity between a lessor and lessee of a tractor-trailer carrying gasoline for liability caused by an explosion where the transaction was being conducted in deliberate disregard of the Interstate Commerce Commission's regulations. Carriers Ins. Exch. v. Truck Ins. Exch., 310 F.2d 653 (4th Cir. 1962).

Or where liability arose out of act involving moral turpitude. - The party who otherwise would be entitled to contribution may forfeit his right where the joint liability arose out of an act involving moral turpitude or a voluntary tort. Hudgins v. Jones, 205 Va. 495 , 138 S.E.2d 16 (1964).

Contribution allowed where party is only a technical wrongdoer. - Where a party is only a technical wrongdoer, and did not actually participate in the wrongful act, such party, on being compelled to pay damages to the injured party, is entitled to contribution or indemnity from the actual wrongdoer. McLaughlin v. Siegel, 166 Va. 374 , 185 S.E. 873 (1936).

Claim must have been paid. - Before contribution may be had it is essential that a cause of action by the person injured lie against the alleged wrongdoer from whom contribution is sought. Further, this right arises only when one tort-feasor has paid or settled a claim for which other wrongdoers are also liable. Bartlett v. Roberts Recapping, Inc., 207 Va. 789 , 153 S.E.2d 193 (1967).

The right to contribution arises only when one of the joint tort-feasors has paid a claim for which the other wrongdoer is also liable. The payment need not be the result of a judgment for the right of contribution will lie although no previous judgment determining the issues of negligence and contributory negligence has been obtained. North River Ins. Co. v. Davis, 274 F. Supp. 146 (W.D. Va. 1967), aff'd, 392 F.2d 571 (4th Cir. 1968).

The right to contribution arises only when one tort-feasor has paid or settled a claim for which the other wrongdoer is liable. Laws v. Spain, 312 F. Supp. 315 (E.D. Va. 1970).

The right given by this section arises when, and only when, one tort-feasor has paid a claim for which they are both liable. Laws v. Spain, 312 F. Supp. 315 (E.D. Va. 1970).

Assignment of right to contribution. - The right to enforce contribution granted by this section is a chose in action. And there appears no logical reason why it is not capable of being assigned. McKay v. Citizens Rapid Transit Co., 190 Va. 851 , 59 S.E.2d 121, 20 A.L.R.2d 918 (1950).

Insurer's right to contribution. - Under this statute not only a joint tort-feasor but also his insurer, who has paid a judgment against him and another joint tort-feasor, has the right of contribution from the latter. McKay v. Citizens Rapid Transit Co., 190 Va. 851 , 59 S.E.2d 121, 20 A.L.R.2d 918 (1950); American Employers' Ins. Co. v. Maryland Cas. Co., 218 F.2d 335 (4th Cir. 1954).

An accident occurred involving two cars in which the drivers of both were at fault, so that each insured became immediately liable and the indemnity provisions of each policy became effective with respect to all the injuries incurred. Thereupon the two insurance companies became subject to a common obligation to the extent of the respective limits of their policies, and when one of them paid the total amount of the debt, the right to contribution from the other arose. American Employers' Ins. Co. v. Maryland Cas. Co., 218 F.2d 335 (4th Cir. 1954).

The right to contribution is not a personal right of the tort-feasor but is a chose in action to which an insurer may be subrogated. Nationwide Mut. Ins. Co. v. Jewel Tea Co., 202 Va. 527 , 118 S.E.2d 646 (1961); Hudgins v. Jones, 205 Va. 495 , 138 S.E.2d 16 (1964).

An insurer's right to contribution was not barred by a judgment which it had previously obtained against the same defendant involving the same accident but based upon subrogation to a separate cause of action. Nationwide Mut. Ins. Co. v. Jewel Tea Co., 202 Va. 527 , 118 S.E.2d 646 (1961).

An insurer making settlement of claims against its insured is subrogated to his right of contribution from joint tort-feasors. Nationwide Mut. Ins. Co. v. Minnifield, 213 Va. 797 , 196 S.E.2d 75 (1973).

Jurisdiction of equity. - While the right to enforce contribution originally belonged to courts of equity on general principles of justice, jurisdiction to proceed in courts of law to enforce contribution is well recognized in some cases, but equity retains such original jurisdiction and will take jurisdiction when to do so will avoid a multiplicity of suits, or where the relief at law would be incomplete or inadequate. Hudgins v. Jones, 205 Va. 495 , 138 S.E.2d 16 (1964).

Transfer of case to law side. - Though the right to contribution arose in equity and though equity retains concurrent jurisdiction in such matters with courts of law, the court did not abuse its discretion in transferring the case to the law side. No matter was involved that was peculiarly cognizable in equity and the basic issues of negligence that were involved traditionally are tried at law. Hudgins v. Jones, 205 Va. 495 , 138 S.E.2d 16 (1964).

Action will lie though no previous judgment has been obtained. - A right of action for contribution will lie though no previous judgment determining the issues of negligence and contributory negligence has been obtained. There is nothing in our statute which requires that the issues of negligence and contributory negligence be adjudicated before an action for contribution may be brought. Nationwide Mut. Ins. Co. v. Jewel Tea Co., 202 Va. 527 , 118 S.E.2d 646 (1961).

Action based on compromise settlement. - Where the action for contribution is based upon a compromise settlement rather than a judgment, the alleged joint tort-feasor may challenge the right to contribution on grounds that the compromise settlement is unreasonable, excessive, made in bad faith, or that he was not concurrently negligent, or that his negligence was not a proximate cause of the injuries compromised. Nationwide Mut. Ins. Co. v. Jewel Tea Co., 202 Va. 527 , 118 S.E.2d 646 (1961).

The burden is upon the alleged joint tort-feasor to show that compromises upon which the right to contribution is based were unreasonable or excessive. Nationwide Mut. Ins. Co. v. Jewel Tea Co., 202 Va. 527 , 118 S.E.2d 646 (1961).

The right to maintain the action for contribution need not be founded upon a judgment determining the issues of negligence. It may be based upon a compromise settlement, rather than a judgment. Laws v. Spain, 312 F. Supp. 315 (E.D. Va. 1970).

Statute of limitations. - The cause of action in cases of this kind arises out of an implied promise to pay, and therefore the three-year statute of limitations would apply. Nationwide Mut. Ins. Co. v. Jewel Tea Co., 202 Va. 527 , 118 S.E.2d 646 (1961).

The right of action under this section arises upon payment or discharge of the obligation, and it is then that the statute of limitations begins to run. Nationwide Mut. Ins. Co. v. Jewel Tea Co., 202 Va. 527 , 118 S.E.2d 646 (1961).

Exoneration and indemnity comes about when one secondarily liable has to pay and then comes back to the party primarily responsible. Mahone v. McGraw-Edison Co., 281 F. Supp. 582 (E.D. Va. 1968).

Exoneration is the right to be reimbursed by reason of having paid that which another should be compelled to pay, and is generally based upon contract, express or implied. Mahone v. McGraw-Edison Co., 281 F. Supp. 582 (E.D. Va. 1968).

Sufficiency of pleading. - In an action brought under this section, use of the word "proximate" or the phrase "proximately caused" was held not necessary in a pleading that was seeking contribution for tortious injury or death caused by negligent acts of omission or commission. Legal responsibility in that respect can be charged by other language so long as it apprises defendant that he is charged with negligently causing or contributing to the injuries or death. Goode v. Courtney, 200 Va. 804 , 108 S.E.2d 396 (1959).

CIRCUIT COURT OPINIONS

Contribution for punitive damages barred. - In a contractor's demurrer to an independent contractor's third-party action for contribution or indemnification after a telephone company's cable was severed, the demurrer was sustained for any claim for indemnity or contribution for punitive damages awarded to the telephone company against the independent contractor, as any act justifying punitive damages would result from moral turpitude and would thus be barred by the provisions of § 8.01-34 . MCI Worldcom Network v. Brockman, 66 Va. Cir. 438, 2000 Va. Cir. LEXIS 646 (Amherst County 2000).

Contribution not barred in hit and run. - Where a motorist involved in an automobile accident pled guilty to felony hit and run, and was sued by the passengers of the other vehicle, it was not appropriate to grant a plea in bar preventing him from asserting a contribution action against the other driver, because the actions to which he pled guilty occurred after the accident occurred and the passengers were injured. Katz v. Waterman, 59 Va. Cir. 182, 2002 Va. Cir. LEXIS 128 (Loudoun County 2002).

Contribution in regard to the Virginia Birth-Related Neurological Injuries Compensation Act. - As the Virginia Birth-Related Neurological Injuries Compensation Act, § 38.2-5000 et seq., barred the injured parties from seeking any remedy against the hospital, the healthcare worker who was being sued could not seek contribution from a party the injured parties could not themselves sue. Schaffer v. Gildon, 61 Va. Cir. 118, 2003 Va. Cir. LEXIS 142 (Norfolk 2003).

Contribution in third-party action. - Construction company's motion for a demurrer was overruled because the fact that an accident victim could have sued the company at some point, if the facts in the retail store's third-party motion for judgment were taken as true, allowed the retail store to bring an action for contribution against the company under § 8.01-34 . Rapine v. A.E. Outfitters Retail Co., 70 Va. Cir. 153, 2006 Va. Cir. LEXIS 38 (Fairfax County 2006).

Contribution. - Contractor could not seek contribution from subcontractors because the contractor had neither paid, nor settled with an accident victim, who fell on the premises where the subcontractors provided services in the building of a walkway. Supchak v. Fuller Constr. Corp., 86 Va. Cir. 517, 2013 Va. Cir. LEXIS 75 (Chesapeake July 12, 2013).

Sufficiency of pleadings. - Based on a railroad's concession that the basis for a demurrer filed against it by a business was that its contribution claim was for the whole amount it paid to settle a FELA claim, the demurrer was sustained; however, the demurrer was denied as to its indemnification claim, whether said claim was labeled implied or equitable. CSX Transp., Inc. v. Titan Am., L.L.C., 72 Va. Cir. 593, 2004 Va. Cir. LEXIS 383 (Richmond 2004).

§ 8.01-35. Damages for loss of income not diminished by reimbursement.

In any suit brought for personal injury or death, provable damages for loss of income due to such injury or death shall not be diminished because of reimbursement of income to the plaintiff or decedent from any other source, nor shall the fact of any such reimbursement be admitted into evidence.

(Code 1950, § 8-628.3; 1974, c. 155; 1977, c. 617.)

Law review. - For survey of Virginia law on torts for the year 1973-1974, see 60 Va. L. Rev. 1615 (1974).

Michie's Jurisprudence. - For related discussion, see 5C M.J. Damages, §§ 48, 49, 91.

CASE NOTES

Section does not apply to losses incurred because of medical expenses. - This section is limited by its own terms to damages for "loss of income," and the Virginia Supreme Court and the Virginia legislature view this as separate and distinct from losses incurred because of medical expenses. Therefore, this section does not apply where the plaintiff seeks to introduce medical bills. Karsten v. Kaiser Found. Health Plan, 808 F. Supp. 1253 (E.D. Va. 1992), aff'd, 36 F.3d 8 (4th Cir. 1994).

Section did not apply where employer paid injured employee from his prior years' earnings. - Under the collateral source rule and this section, compensation paid by an employer to an employee during the period of the employee's disability was not deductible from the quantum of damages the tortfeasor owed; hence, evidence of the employee's loss of income was admissible in evidence at trial and the fact of any reimbursement to the employee by the employer shall not be admitted into evidence. Bullard v. Alfonso, 267 Va. 743 , 595 S.E.2d 284, 2004 Va. LEXIS 65 (2004).

Amounts written off under Medicaid. - Because the court determined that the collateral source rule would allow a personal injury plaintiff to seek damages for the full costs of medical treatment regardless of whether any amounts were written off under Medicaid, the court allowed plaintiff to introduce the full amounts charged by her health care providers. Wright v. Smith, 641 F. Supp. 2d 536, 2009 U.S. Dist. LEXIS 55781 (W.D. Va. 2009).

§ 8.01-35.1. Effect of release or covenant not to sue in respect to liability and contribution.

When a release or a covenant not to sue is given in good faith to one of two or more persons liable for the same injury to a person or property, or the same wrongful death:
1. It shall not discharge any other person from liability for the injury, property damage or wrongful death unless its terms so provide; but any amount recovered against the other person or any one of them shall be reduced by any amount stipulated by the covenant or the release, or in the amount of the consideration paid for it, whichever is the greater. In determining the amount of consideration given for a covenant not to sue or release for a settlement which consists in whole or in part of future payment or payments, the court shall consider expert or other evidence as to the present value of the settlement consisting in whole or in part of future payment or payments. A release or covenant not to sue given pursuant to this section shall not be admitted into evidence in the trial of the matter but shall be considered by the court in determining the amount for which judgment shall be entered; and
2. It shall discharge the person to whom it is given from all liability for contribution to any other person liable for the same injury to person or property or the same wrongful death.
A person who enters into a release or covenant not to sue with a claimant is not entitled to recover by way of contribution from another person whose liability for the injury, property damage or wrongful death is not extinguished by the release or covenant not to sue, nor in respect to any amount paid by the person which is in excess of what was reasonable.
For the purposes of this section, a covenant not to sue shall include any "high-low" agreement whereby a party seeking damages for injury to a person or property, or for wrongful death, agrees to accept as full satisfaction for any judgment no more than one sum certain and the party or parties from whom the damages are sought agree to pay no less than another sum certain regardless of whether any judgment rendered at trial is higher or lower than the respective sums certain set forth in the agreement and whereby such party provides notice to all of the other parties of the terms of such "high-low" agreement immediately after such agreement is reached.
A release or covenant not to sue given pursuant to this section shall be subject to the provisions of §§ 8.01-55 and 8.01-424 .
This section shall apply to all such covenants not to sue executed on or after July 1, 1979, and to all releases executed on or after July 1, 1980. This section shall also apply to all oral covenants not to sue and oral releases agreed to on or after July 1, 1989, provided that any cause of action affected thereby accrues on or after July 1, 1989. A release or covenant not to sue need not be in writing where parties to a pending action state in open court that they have agreed to enter into such release or covenant not to sue and have agreed further to subsequently memorialize the same in writing.
(1979, c. 697; 1980, c. 411; 1982, c. 196; 1983, c. 181; 1985, c. 330; 1989, c. 681; 2000, c. 351; 2007, c. 443.)

Cross references. - As to effect of judgment against one joint wrongdoer, see § 8.01-443 .

The 2000 amendments. - The 2000 amendment by c. 351 added present subsection C, and redesignated former subsections C and D as present subsections D and E.

The 2007 amendments. - The 2007 amendment by c. 443 in subsection A, substituted "liable for the same injury to a person or property" for "in tort for the same injury, or the same property damage"; in subdivision A 1, substituted "other person" for "of the other tort feasors" and "person" for "tort feasor" in the first sentence; in subdivision A 2, substituted "person" for "tort feasor" and "person liable for the same injury to person or property or the same wrongful death" for "tort feasor" near the end; in subsection B, substituted "person" for "tort feasor" throughout; and in subsection C, substituted "for injury to a person or property, or for wrongful death" for "in tort" near the beginning and "parties" for "tort feasors" near the end.

Law review. - For comment, "The Covenant Not to Sue: Virginia's Effort to Bury the Common Law Rule Regarding the Release of Joint Tortfeasors," see 14 U. Rich. L. Rev. 809 (1980). For survey of Virginia law on torts for the year 1978-1979, see 66 Va. L. Rev. 375 (1980).

For comment discussing the retroactive application of this section, see 18 U. Rich. L. Rev. 829 (1984). For 1985 survey of Virginia civil procedure and practice, see 19 U. Rich. L. Rev. 679 (1985).

For comment on decision, "Jones v. General Motors Corp., 856 F.2d 22 (4th Cir. 1988)," see 47 Wash. & Lee L. Rev. 504 (1990).

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

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

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

Michie's Jurisprudence. - For related discussion, see 1A M.J. Accord and Satisfaction, §§ 1, 9; 1A M.J. Agency, § 84; 2A M.J. Assault and Battery, §§ 19, 27; 4B M.J. Contribution and Exoneration, § 22; 12B M.J. Master and Servant, § 97; 16 M.J. Release, §§ 7, 8; 18 M.J. Torts, §§ 1, 3.

CASE NOTES

Purpose. - The General Assembly intended to change a rule of law which tended to reward a recalcitrant tort-feasor at the expense of a joint tort-feasor who was willing to settle out of court. The legislative intent, as shown by the statutory language, was to promote the use of a covenant not to sue by permitting payment thereunder and discharge of one joint tort-feasor without causing the covenant to effect the release of the other joint tort-feasors. Hayman v. Patio Prods., Inc., 226 Va. 482 , 311 S.E.2d 752 (1984).

In 1979, recognizing the potential hardship under the common law, the Virginia legislature enacted this section. The statute provides that a release entered into by one joint tort-feasor does not necessarily discharge the remaining tort-feasors. The legislative purpose is to facilitate settlement and promote the use of releases. State Farm Mut. Auto. Ins. Co. v. Reynolds, 676 F. Supp. 106 (W.D. Va. 1987).

Two policy goals underlie the uniform law from which this section was derived and guide its interpretation; the overarching purpose is to foster settlements in the multiple tortfeasor context and the ancillary goal is to prevent collusion and thereby reasonably ensure a fair distribution of responsibility for a plaintiff's damages among tortfeasors. Dacotah Mktg. & Research v. Versatility, 21 F. Supp. 2d 570 (E.D. Va. 1998).

Section facilitates prompt settlement. - The statute authorizes payment of consideration under the covenant not to sue without discharging nonpaying joint tort-feasors. The statute protects the paying tort-feasor from liability for contribution and prohibits him from exacting contribution from nonpaying joint tort-feasors against whom claims remain outstanding. The statute facilitates prompt settlement, payment, and discharge of paying tort-feasors without releasing those nonpaying joint tort-feasors who prefer to have their liability determined in litigation, with its attendant delays. Hayman v. Patio Prods., Inc., 226 Va. 482 , 311 S.E.2d 752 (1984).

Injured party protected from unnecessary delays and loss of claims. - The effect of the statute is to protect the injured party from unnecessary delays and loss of claims. State Farm Mut. Auto. Ins. Co. v. Reynolds, 676 F. Supp. 106 (W.D. Va. 1987).

For history and construction of section, see Carickhoff v. Badger-Northland, Inc., 562 F. Supp. 160 (W.D. Va. 1983).

As applicable to Virginia Tort Claims Act. - Trial court improperly applied a set off under § 8.01-35.1 for a driver's settlement with a passenger and a liability limit of $100,000 in § 8.01-195.3 of the Virginia Tort Claims Act prior to a jury verdict in an action against the Commonwealth for negligence and nuisance; it was the jury's responsibility to determine the amount of damages, and then the set off and the liability limit, respectively, should be applied to the jury verdict. Torloni v. Commonwealth, 274 Va. 261 , 645 S.E.2d 487, 2007 Va. LEXIS 90 (2007).

Section inapplicable to defamation verdict. - This section was inapplicable to a jury verdict for a former employee against a former judge based on a statement made by the former judge to newspaper reporters because the injury resulting from the former judge's statement was separate and distinct from the injury resulting from a later newspaper article. Askew v. Collins, 283 Va. 482 , 722 S.E.2d 249, 2012 Va. LEXIS 51 (2012).

Not applicable to legal malpractice claim. - In a legal malpractice claim, the circuit court erred in denying the law firm's second plea in bar and in not granting a partial bar to the malpractice plaintiff's recovery because the law firm did not breach its duty to plaintiff by failing to correctly anticipate that the release agreement would not be governed by a former version of this statute as the supreme court later determined that the former version of this statute did not apply to legal malpractice cases, and by believing that the agreement had released some but not all of the co-defendants to the criminal malpractice claim. Smith v. McLaughlin, 289 Va. 241 , 769 S.E.2d 7, 2015 Va. LEXIS 23 (Feb. 26, 2015).

Construction with § 38.2-2206 . - Consistent with the supreme court's jurisprudence and the General Assembly's intent as expressed in §§ 8.01-35.1 and 38.2-2206 , the tortfeasor remains primarily responsible for fully compensating the plaintiff for the injury the tortfeasor has caused. Llewellyn v. White, 297 Va. 588 , 831 S.E.2d 494, 2019 Va. LEXIS 91 (2019).

Effect of subdivision A 1 is to encourage precisely worded releases, while at the same time offer some relief from the harsh common law rule. Although the case concerned a general boiler plate release, the statute did not suggest any reading, other than a literal interpretation, was mandated. State Farm Mut. Auto. Ins. Co. v. Reynolds, 676 F. Supp. 106 (W.D. Va. 1987).

Good faith requirement. - The collusion that will invalidate a release under the good faith standard occurs when the arm's length negotiations between the plaintiff and settling tortfeasors break down; a release is not given in good faith if the plaintiff no longer seeks to gain as much as possible through settlement and the release is given to facilitate a collusive alliance against or to otherwise facilitate intentionally injuring the interests of nonsettling parties. Dacotah Mktg. & Research v. Versatility, 21 F. Supp. 2d 570 (E.D. Va. 1998).

Analysis of whether a release was given in good faith begins with the presumption that the settlement has been made in good faith, and the burden is on the challenging party to show that the settlement is infected with collusion or other tortious or wrongful conduct. Dacotah Mktg. & Research v. Versatility, 21 F. Supp. 2d 570 (E.D. Va. 1998).

When a release given to one of two or more joint tortfeasors is the result of collusion between the plaintiff and the settling tortfeasor and is not given in good faith, the release does not discharge the colluding tortfeasor and is void and of no effect at all. Dacotah Mktg. & Research v. Versatility, 21 F. Supp. 2d 570 (E.D. Va. 1998).

The words "releases executed" used in subsection D (now subsection E) of this section are not a mandate that a plaintiff sign a written release but merely a collective synonym for the several releases addressed in the preceding paragraphs of the statute, i.e., a release "given in good faith," a release "given pursuant to this section," a release "given," and a release into which a party "enters." Fairfax Hosp. Sys. v. Nevitt, 249 Va. 591 , 457 S.E.2d 10 (1995).

At common law in Virginia, there was no right to contribution from joint tort-feasors, but that right was statutorily created by the Virginia General Assembly in 1919. This right is codified in § 8.01-34 , subject now to the provisions of this section. Carickhoff v. Badger-Northland, Inc., 562 F. Supp. 160 (W.D. Va. 1983).

Section affects substantive rights of joint tort-feasors, not merely the procedural aspects of their remedy. Shiflet v. Eller, 228 Va. 115 , 319 S.E.2d 750 (1984).

Issues affecting the substantive right of contribution are to be determined by the law which existed at the time of the tort giving rise to the cause of action for contribution. Shiflet v. Eller, 228 Va. 115 , 319 S.E.2d 750 (1984).

Right of contribution. - Approval of settlement agreement between debtors' Liquidating Trust and law firm did not prevent any party from arguing (in the context of an actual case or controversy) that § 8.01-35.1 had limited applicability to a future asserted right of contribution. In re Health Diagnostic Lab., Inc.,, 2016 Bankr. LEXIS 3724 (Bankr. E.D. Va. Oct. 14, 2016).

Releasable parties not limited to health care provider. - The settlement credit mandate of this section does not require that a person who has been released be a health care provider. It requires only that such a person and the defendant health care provider at trial be joint tortfeasors mutually liable for the same injury; health care group was such a joint tortfeasor. Fairfax Hosp. Sys. v. Nevitt, 249 Va. 591 , 457 S.E.2d 10 (1995).

Applicability to vicariously liable parties. - This section's plain language appears to apply to a party who is vicariously liable, as its coverage extends to one of two or more persons liable in tort for the same injury. And while a master and servant are not technically joint tort-feasors with respect to the servant's tortious act, in Virginia their liability is joint and several and governed by the same principles that are applicable to joint tort-feasors. Harris v. Aluminum Co. of Am., 550 F. Supp. 1024 (W.D. Va. 1982).

There is no evidence that the General Assembly intended to exclude the vicarious liability of masters or principals from the scope of this section. Harris v. Aluminum Co. of Am., 550 F. Supp. 1024 (W.D. Va. 1982).

The inclusion of a reference to "joint tort-feasors" in the title of the several acts affecting this section does not make the decision to apply the statute to those vicariously liable a constitutionally impermissible extension of the bounds of the act. Thurston Metals & Supply Co. v. Taylor, 230 Va. 475 , 339 S.E.2d 538 (1986).

The application of this section is not limited to "joint tort-feasors," as that term is narrowly defined, but the statute also applies to those vicariously liable as employers, masters, and principals. Thurston Metals & Supply Co. v. Taylor, 230 Va. 475 , 339 S.E.2d 538 (1986).

Application not at odds with Constitution. - Application of the plain words of the substantive language of this section to those vicariously liable, even though they technically are not joint tort-feasors, is not at odds with Va. Const., Art. IV, § 12 because it is in furtherance of the purpose of the enactment, which is to encourage settlements. Thurston Metals & Supply Co. v. Taylor, 230 Va. 475 , 339 S.E.2d 538 (1986).

Compliance with insurance provisions. - The public policy in favor of settlement of tort suits contained in this section has no bearing on the question of whether an insured must comply with policy provisions in order to collect insurance money in lieu of damages from a tort-feasor. Virginia Farm Bureau Mut. Ins. Co. v. Gibson, 236 Va. 433 , 374 S.E.2d 58 (1988).

Pre-1979 right of contribution among joint tort-feasors included a right to be released when a joint tort-feasor has been released. Bartholomew v. Bartholomew, 233 Va. 86 , 353 S.E.2d 752 (1987).

Offset not prohibited by FELA. Permitting a defendant to offset against the damages awarded the plaintiff the amount received by the plaintiff in a settlement with a third party does not violate the Federal employers' Liability Act, 45 U.S.C. § 51 et seq., provision which proscribes a "device" enabling a defendant "to exempt itself from liability." Downer v. CSX Transp., Inc., 256 Va. 590 , 507 S.E.2d 612 (1998).

Offset not properly calculated. - Trial court erred in calculating an offset from the settlement of a wrongful death action against one defendant that arose from a collision between the decedent's truck and a train, as the settlement amount should have been subtracted from the damage award before calculating the prejudgment interest that was awarded by the jury. RGR, LLC v. Settle, 288 Va. 260 , 764 S.E.2d 8, 2014 Va. LEXIS 161 (Oct. 31, 2014).

No entitlement to offset. - Circuit court did not err when it refused to reduce the judgment an insured obtained against a driver by the amount of the proceeds the insured received from her underinsured motorist policy because the insurer and the driver were not persons liable for the same injury; the insurer's contractual obligation was to pay the insured because of the driver's inadequate motor vehicle insurance, and that was not the same as the driver's tort obligation to pay for damages caused by her negligence. Llewellyn v. White, 297 Va. 588 , 831 S.E.2d 494, 2019 Va. LEXIS 91 (2019).

Driver was not entitled to any credit for money she owed pursuant to a judgment an insured obtained against her that she had not paid because the insurer agreed with the insured not to interfere with the insured's right to collect from the driver any amounts the driver was found to owe the insured; the insurer sought no consideration from and made no agreement with the driver to forgive any of the amount that it had the statutory right to seek from the driver. Llewellyn v. White, 297 Va. 588 , 831 S.E.2d 494, 2019 Va. LEXIS 91 (2019).

Recovery against other joint tort-feasors not barred by covenant not to sue. - The effect of this section as first enacted was to prevent a covenant not to sue, drawn in compliance with the statute, from having the effect, upon payment of the agreed consideration, of a release and accord and satisfaction barring recovery from the other joint tort-feasors. Hayman v. Patio Prods., Inc., 226 Va. 482 , 311 S.E.2d 752 (1984).

Amounts recovered under release or covenant not to sue. - Pursuant to this section, the amounts recovered under a release or a covenant not to sue shall reduce the plaintiff 's judgment against another by the amount stipulated in the covenant or release, irrespective of whether the settling party is in fact a joint tort-feasor. Greenbaum v. Travelers Ins. Co., 705 F. Supp. 1138 (E.D. Va. 1989).

In determining amount of release monies to be credited against recovery, etc. the trial court must identify the amount of consideration paid by a tortfeasor for a release. In determining this amount, the court must look at the injury or damage covered by the release and, if more than a single injury, allocate, if possible, the appropriate amount of compensation for each injury. Tazewell Oil Co. v. United Va. Bank/Crestar Bank, 243 Va. 94 , 413 S.E.2d 611 (1992).

In a case where a housing authority acted as an agent for a limited partnership in procuring a builders risk policy from an insurer, the trial court erred in failing to consider the application of subsection A of § 8.01-35.1 in determining economic loss damages, because a factor to be considered was whether the release or covenant not to sue in the settlement with the housing authority was for the same injury or property damage as the case at bar. Acordia of Va. Ins. Agency, Inc. v. Genito Glenn, L.P., 263 Va. 377 , 560 S.E.2d 246, 2002 Va. LEXIS 37 (2002).

In a contract dispute among an owner, contractor, subcontractor, and inspector for damages from the collapse of an underground rain tank, the circuit court erred in failing to consider whether the recitation in a settlement agreement between the owner and inspector was accurate regarding allocation of the consideration paid between the owner's claims for attorney's fees and the tank collapse and thus whether the subcontractor, who was found liable for the collapse, was entitled to an offset. William H. Gordon Assocs. v. Heritage Fellowship, 291 Va. 122 , 784 S.E.2d 265, 2016 Va. LEXIS 11 (2016).

Error in credit calculation found. - Where trial court reduced the $2,000,000 jury verdict rendered against the hospital by $600,000 (the amount of the health care group's settlement) and then reduced the remainder ($1,400,000) to the medical malpractice cap ($1,000,000), the plain meaning of this section and § 8.01-581.15 , read together, is that where there is a verdict by a jury or a judgment by a court against a health care provider for "injury to . . . a patient" and the total amount recovered in that action and in all settlements related to the medical malpractice injury exceeds one million dollars, the total amount the plaintiff can recover for that injury is $1,000,000. Accordingly, the trial court erred when it failed to apply the $600,000 credit for the statutory recovery cap in determining the quantum of plaintiff's judgment. Fairfax Hosp. Sys. v. Nevitt, 249 Va. 591 , 457 S.E.2d 10 (1995).

Distinction in subsection D (now subsection E) between covenants not to sue and releases is consistent with a long recognized distinction in Virginia common law. It was long the law of Virginia that a release of one joint tort-feasor amounted to a release of all joint tort-feasors. On the other hand, a covenant not to sue one joint tort-feasor did not necessarily prevent actions against fellow tort-feasors. Perdue v. Sears, Roebuck & Co., 694 F.2d 66 (4th Cir. 1982).

Retroactive application of section, resulting in destruction of substantive right which a party was possessed of prior to enactment of section, is improper. Carickhoff v. Badger-Northland, Inc., 562 F. Supp. 160 (W.D. Va. 1983).

In a medical malpractice case arising out of a surgical operation performed in 1977, where the patient's committee sued the hospital and three physicians, jointly and severally, and in 1983 agreed to settle her claims against the physicians for $475,000, releasing the physicians and purporting to reserve her claims against the hospital, this section could not be applied retroactively to adversely affect hospital's right of contribution from the released tort-feasors. Potomac Hosp. Corp. v. Dillon, 229 Va. 355 , 329 S.E.2d 41, cert. denied, 474 U.S. 971, 106 S. Ct. 352, 88 L. Ed. 2d 320 (1985).

Where defendant's substantive right, manifested by her ability to defend successfully the suit by the plaintiff after plaintiff had released joint tort-feasor, would be impaired if the statute was permitted to operate retroactively, the application of the statute would be constitutionally invalid, and issues affecting the substantive right would be determined by the law which existed in 1976, the time of the tort giving rise to the cause of action for contribution. Bartholomew v. Bartholomew, 233 Va. 86 , 353 S.E.2d 752 (1987).

When this section, including subsection D, adversely affects a substantive right, it cannot be applied retroactively to impair that right, because such application would violate the non-settling joint tort-feasor's due process rights. Bartholomew v. Bartholomew, 233 Va. 86 , 353 S.E.2d 752 (1987).

Section not retroactively applied so as to adversely affect right of contribution. - Where the cause of action for contribution accruing to a joint tort-feasor arose at the time of the jointly negligent acts in October, 1977, it necessarily followed that this section, enacted in 1979, which adversely affected that substantive right, could not be applied retroactively to impair that right. Such a retroactive application of the enactment would violate his due process rights and would be invalid. Shiflet v. Eller, 228 Va. 115 , 319 S.E.2d 750 (1984).

Applicable version of section determined by date release or covenant signed. - The 1982 amendment, which added the second sentence of subdivision A 1 and added subsection D, is a clarification of the July 1, 1980, version of this section. There is no issue of whether this section is retroactive or prospective. Each version of this section applies to covenants not to sue and/or releases signed during the effective dates of each version. Statzer v. King Kutter Corp., 550 F. Supp. 1062 (W.D. Va. 1982).

Not date cause of action arose. - The court must look to the date of the release rather than the date that the cause of action arose in order to determine the applicable version of this section. Statzer v. King Kutter Corp., 550 F. Supp. 1062 (W.D. Va. 1982).

Intent of parties is controlling on effect of release. - A nondischarged tort-feasor may claim a setoff based on any sums paid by another to obtain a release, but the effect of the release itself is controlled by the intent of the parties as expressed in the terms of the writing. Lemke v. Sears, Roebuck & Co., 853 F.2d 253 (4th Cir. 1988).

Written release, issued by an injured motorist to the other motorist involved in an auto accident, failed to bring an action against the auto manufacturer which named other motorist as third party defendant within the scope of this section, where the written release was executed two and one-half years after a similar oral release was given, and after the statute of limitations on injured motorist cause of action against other motorist had expired, and after the action against the manufacturer had commenced. Jones v. GMC, 856 F.2d 22 (4th Cir. 1988).

Approval of releases. - Those portions of a release that are not made part of a wrongful death compromise settlement approved by a circuit court are not binding on the parties to the release. Ramey v. Bobbitt, 250 Va. 474 , 463 S.E.2d 437 (1995).

Trial court did not err in utilizing the present value of infant's structured settlement with physician in reducing the infant's verdict against the hospital. Under this section, the hospital was not entitled to a credit equal to the undiscounted sum of payments which the settlement agreement provided for the infant. Fairfax Hosp. Sys. v. McCarty, 244 Va. 28 , 419 S.E.2d 621 (1992).

Nonsettling joint tort-feasor is not necessarily freed from liability for damages. Contribution may be recovered if his liability is established. State Farm Mut. Auto. Ins. Co. v. Reynolds, 676 F. Supp. 106 (W.D. Va. 1987).

When settling tort-feasor may seek contribution from nonsettling tort-feasor. - The legislature's purpose in enacting this section supports the inference, that if a release between a claimant and a tort-feasor extinguishes the liability of a second tort-feasor, then the settling tort-feasor may still seek contribution from the nonsettling tort-feasor. State Farm Mut. Auto. Ins. Co. v. Reynolds, 676 F. Supp. 106 (W.D. Va. 1987).

Principal not automatically released by covenant given to agent. - A covenant not to sue given to an alleged agent pursuant to this section does not automatically release the alleged principal from vicarious liability based on the acts of the alleged agent. Harris v. Aluminum Co. of Am., 550 F. Supp. 1024 (W.D. Va. 1982).

Inapplicable to indemnity rights arising from contractual relationship. - This statute governs only those claims for contribution between tort feasors, a relation that is created in law by the commission of the tort. The statute does not purport to speak to indemnity rights which arise from a contractual relationship between contracting parties. Whittle v. Timesavers, Inc., 572 F. Supp. 584 (W.D. Va. 1983), rev'd on other grounds, 749 F.2d 1103 (4th Cir. 1984).

Validity not affected by single document multi-claim release. - There is no requirement of separate documents for the release of contract and tort claims. Consolidation of them in a single document does not defeat an otherwise valid compliance with this section as to the release of tort claims. Tazewell Oil Co. v. United Va. Bank/Crestar Bank, 243 Va. 94 , 413 S.E.2d 611 (1992).

Indivisible injuries. - Where there is one indivisible injury for which settlement has been consummated, unconditional release of one allegedly liable for the injury bars recovery against others also allegedly liable, regardless of the theory upon which liability is predicated. Cauthorn v. British Leyland, U.K., Ltd., 233 Va. 202 , 355 S.E.2d 306 (1987).

Where the injuries complained of are those for which the compromise settlement provided compensation, and plaintiff sustained injuries which, although they may have had more than a single cause, constituted a single indivisible injury, her settlement with and release of the insurance companies and their insureds constituted an accord and satisfaction of her cause of action for her single indivisible injury, and as such, this release also released all other parties allegedly responsible for her injuries. Cauthorn v. British Leyland, U.K., Ltd., 233 Va. 202 , 355 S.E.2d 306 (1987).

Trial court did not err in dismissing the exonerated individual's motion for judgment, which sought to recover from the attorneys for alleged legal malpractice, after the exonerated individual was released from prison following the granting of his petition for habeas corpus based on evidence that other people actually committed the crimes for which he was wrongfully incarcerated; the trial court properly found that the exonerated individual suffered one indivisible injury and that he was not entitled to recover on a claim of legal malpractice since he had been compensated for that injury, his wrongful incarceration by the Commonwealth and his attempt to recover under a legal malpractice claim was merely trying to recover for the same wrong for which he had already been compensated. Cox v. Geary, 271 Va. 141 , 624 S.E.2d 16, 2006 Va. LEXIS 20 (2006).

Writing required. - While none of the language of this section standing alone might be dispositive, the provision as a whole points to the requirement of a writing. Jones v. GMC, 856 F.2d 22 (4th Cir. 1988) (decided prior to the 1989 amendment, which added the second and third sentences in present subsection E).

The statutory language of this section which speaks of executed releases and covenants appears to contemplate the signing of a written instrument. The drafters of the statute specifically selected the word "executed" in lieu of alternative terms such as "made" or "entered" which might have encompassed an oral agreement. This interpretation is further supported by other language in the statute which suggests that some written document was contemplated. Jones v. GMC, 856 F.2d 22 (4th Cir. 1988) (decided prior to the 1989 amendment, which added the second and third sentences in present subsection E).

Requirement of a writing ensures that the parties thereto understand who is being released in return for what consideration. It serves notice to joint tort-feasors that they remain bound and avoids the need to undertake extensive litigation over questions of the validity and effect of the release, with all the attendant problems of having the parties and their attorneys take the stand to testify about their understanding of the terms, consideration, and conditions of the release. Jones v. GMC, 856 F.2d 22 (4th Cir. 1988) (decided prior to the 1989 amendment, which added the second and third sentences in present subsection E).

Requirements of statute satisfied. - Where hospital argued that, in order to avoid the effect of the common-law rule, plaintiff was required by this section to subscribe a written release before dismissing health care group with prejudice from the case, and where the settlement, consummated by delivery of check and execution of the joint tortfeasor release, was preceded by an agreement in principle memorialized by several writings, namely, the letter addressed by plaintiff's counsel to health care group's counsel, the copy of the written release later executed, unchanged, by plaintiff and the order subscribed by counsel for plaintiff and health care group reciting that claims had been settled, pursuant to this section, plaintiff complied with the requirements of this section and the hospital was not released. Fairfax Hosp. Sys. v. Nevitt, 249 Va. 591 , 457 S.E.2d 10 (1995) (decided prior to the 1989 amendment).

Indivisible injuries. - Trial court in a physician's contribution action under §§ 8.01-34 and 8.01-35.1 against a pharmacy and its pharmacist erred when it gave the jury erroneous instructions on the issues of the reasonableness of an underlying settlement and the apportionment of damages between the parties, such that a new trial was required because the instructions bore on the issues of both liability and damages; apportionment between the parties should not have been before the jury where the evidence indicated that the injuries suffered by the patient in the underlying action were indivisible, such that a finding of joint liability rendered each party liable for the full injury, and as there was nothing to rebut the physician's evidence as to the reasonableness of the settlement, that issue also should not have been a subject for the jury's consideration. Sullivan v. Robertson Drug Co., 273 Va. 84 , 639 S.E.2d 250, 2007 Va. LEXIS 16 (2007).

Applied in Perdue v. Sears, Roebuck & Co., 523 F. Supp. 203 (W.D. Va. 1981); Farish v. Courion Indus., Inc., 754 F.2d 1111 (4th Cir. 1985); Bell v. Owen Thomas, Inc., 115 F.R.D. 299 (W.D. Va. 1987); Boyd v. Bulala, 678 F. Supp. 612 (W.D. Va. 1988); Allianz Ins. Co. v. Garrett, 47 F.3d 665 (4th Cir. 1995).

CIRCUIT COURT OPINIONS

"Good faith." - "Good faith" settlement agreement under § 8.01-35.1 is one that is the product of an arm's length negotiation untainted by collusion or other tortious or wrongful conduct. Fairfax Radiological Consultants, P.A. v. Bui, 72 Va. Cir. 570, 2002 Va. Cir. LEXIS 465 (Fairfax County 2002).

Insurance agency not joint tort-feasors with settling defendants in earlier related case and not entitled to settlement credit. - Settlement credit mandated by § 8.01-35.1 required that the tort-feasor seeking the credit and the other defendants involved in the settlement of a prior case had been joint tort-feasors mutually liable for the same injury; an insurance agency found to have been liable for its failure to name a partnership on a builders risk policy was not entitled to any credit for a settlement which the partnership made with the negligent tort-feasors in an earlier case involving a related construction project, as the insurance agency's tort was separate and distinct from the torts of the other tort-feasors. Genito Glenn, L.P. v. Acordia of Va. Ins. Agency, Inc., 61 Va. Cir. 634, 2002 Va. Cir. LEXIS 383 (Virginia Beach 2002).

Plea in discharge sustained in contribution action where settlement in good faith. - Doctor's plea in discharge was sustained after the other doctor tried to file a contribution action against the doctor once the other doctor was found liable to the patient in a medical malpractice suit, as the evidence did not show that the doctor's settlement with the patient was not made in good faith, or was otherwise the product of collusion or tortious conduct. Ponirakis v. Choi, 62 Va. Cir. 21, 2003 Va. Cir. LEXIS 83 (Fairfax County 2003).

Release given in good faith. - Release of the driver in a traffic accident case and a covenant not to sue did not release the manufacturer from liability in the injured person's products liability case, and, despite language in the release that set forth a specific amount for the injured person's eye injury, was not in bad faith, being expressly allowed by the clear language of § 8.01-35.1 ; the amount of consideration paid for the release was a matter to be determined at such time as judgment was entered in the case. Benitez v. Ford Motor Co., 69 Va. Cir. 323, 2005 Va. Cir. LEXIS 209 (Fairfax County 2005).

Uneven distribution of liability between a settling and a non-settling tortfeasor is clearly contemplated and permitted by § 8.01-35.1 and is not grounds to allow the latter to seek contribution from the former, absent a showing that the release was procured by collusion or was otherwise entered into in bad faith. Fairfax Radiological Consultants, P.A. v. Bui, 72 Va. Cir. 570, 2002 Va. Cir. LEXIS 465 (Fairfax County 2002).

As a pretrial settlement of a malpractice claim by plaintiffs and a doctor was made in good faith and without collusion by design or by operation of law, and the doctor did not reserve any right to veto plaintiffs' settlement with his former co-defendant, a radiological group, under § 8.01-35.1 , the group could not seek contribution from the doctor to satisfy the judgment entered against it. Fairfax Radiological Consultants, P.A. v. Bui, 72 Va. Cir. 570, 2002 Va. Cir. LEXIS 465 (Fairfax County 2002).

Indivisible injuries. - Where the corporation had not shown that it and the manufacturer were liable for the same indivisible injury because (1) any injury to the homeowners because the manufacturer produced a defective stucco, which was applied to their home, must have related to all the stucco applied, (2) the injury caused by breach of contract by the corporation (defective application of the stucco) did not under the evidence occur every place that the stucco was applied, and (3) while the injury for the defective product and for constructive fraud would have been the same, there was no way to tell if the jury found the corporation liable for constructive fraud because of the general nature of the verdict and the fact that the case went to the jury on two causes of action, the reduction provisions did not apply. Herman v. McCarthy Enters., 63 Va. Cir. 181, 2003 Va. Cir. LEXIS 333 (Loudoun County 2003).

Defendant entitled to settlement credit. - As the unjust enrichment, fraudulent conveyance and conversion claims alleged against co-defendant, who settled before trial, left the debtors unable to pay back the $150,000 loaned by plaintiffs, and caused the same $150,000 loss to plaintiffs as caused by defendant's fraud, defendant was entitled to a settlement credit based on co-defendant's settlement. Oswald v. Holtzman, 90 Va. Cir. 9, 2015 Va. Cir. LEXIS 15 (Fairfax County Jan. 20, 2015).

Calculation of settlement credit. - Defendant was awarded a settlement credit of $77,571, which was calculated by applying the settlement percentage paid by co-defendant, who settled before trial, to the value of the claims; plaintiffs accepted a $100,000 payment in exchange for releasing co-defendant from claims with a known value of $193,370, comprised of $150,000 in damages, fees of $43,370 and the possibility of punitive damages, which made the settlement amount approximately 51.71 percent of the value of the claims, exclusive of punitive damages. Oswald v. Holtzman, 90 Va. Cir. 9, 2015 Va. Cir. LEXIS 15 (Fairfax County Jan. 20, 2015).

§ 8.01-36. (Effective until January 1, 2022) Joinder of action of tort to infant with action for recovery of expenses incurred thereby and claim for recovery of expenses by infant.

Where there is pending any action by an infant plaintiff against a tort-feasor for a personal injury, where the cause of action accrued prior to July 1, 2013, any parent or guardian of such infant, who is entitled to recover from the same tort-feasor the expenses of curing or attempting to cure such infant from the result of such personal injury, may bring an action against such tort-feasor for such expenses, in the same court where such infant's case is pending, either in the action filed in behalf of the infant or in a separate action. If the claim for expenses be by separate action, upon motion of any party to either case, made to the court at least one week before the trial, both cases shall be tried together at the same time as parts of the same transaction. But separate verdicts when there is a jury trial shall be rendered, and the judgment shall distinctly separate the decision and judgment in the separate causes of action.
In the event of the cases being carried to the Supreme Court, which may be done if there be the jurisdictional amount in either case, they shall both be carried together as one case and record, but the Supreme Court shall clearly specify the decision in each case, separating them in the decision to the extent necessary to do justice among the parties.
For causes of action that accrue on or after July 1, 2013, the past and future expenses of curing or attempting to cure an infant of personal injuries proximately caused by a tort-feasor are damages recoverable by an infant in a cause of action against the tort-feasor and, if applicable to the infant's cause of action, are subject to the limitation on damages in § 8.01-581.15 . Any parent or guardian of such infant who has paid for or is personally obligated to pay for past or future expenses to cure or attempt to cure the infant shall have a lien and right of reimbursement against any recovery by the infant up to the amount the parent or guardian has actually paid or is personally obligated to pay. The right to reimbursement of any parent or guardian shall accrue upon the first tender of funds of any recovery from a tort-feasor to the infant. Court approval of the infant settlement shall release party defendants from all claims for past or future expenses of curing or attempting to cure the infant. Nothing in this section shall relieve a parent of the obligation to pay for the medical expenses of curing or attempting to cure the infant as such obligation exists under current law. (Code 1950, § 8-629; 1954, c. 333; 1973, c. 277; 2013, cc. 551, 689.)

Section set out twice. - The section above is effective until January 1, 2022. For the version of this section effective January 1, 2022, see the following section, also numbered § 8.01-36 .

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

The 2013 amendments. - The 2013 amendments by cc. 551 and 689 are identical, and added the subsection A designator and added subsection B; and inserted "where the cause of action accrued prior to July 1, 2013" in the first sentence in subsection A.

Michie's Jurisprudence. - For related discussion, see 5C M.J. Damages, § 26; 9B M.J. Infants, § 16.

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

CASE NOTES

This section recognizes the common-law rule that two separate causes of action arise out of an injury to an infant by wrongful act. One cause of action is on behalf of the infant to recover damages for pain and suffering, permanent injury and impairment of earning capacity after attaining majority. The other is on behalf of the parent for loss of services during minority and necessary expenses incurred for the infant's treatment. Moses v. Akers, 203 Va. 130 , 122 S.E.2d 864 (1961).

An infant is not entitled to recover the expenses incurred in healing or attempting to be healed of his injuries in an action brought against a tort-feasor to recover damages for personal injuries unless (1) he has paid or agreed to pay the expenses; or (2) he alone is responsible by reason of his emancipation or the death or incompetency of his parents; or (3) the parent has waived the right of recovery in favor of the infant; or (4) recovery therefor is permitted by statute. Moses v. Akers, 203 Va. 130 , 122 S.E.2d 864 (1961).

Father's cause of action derivative. - A father's cause of action for medical and incidental expenses was a derivative action, and where there was no verdict in the child's case, there could be none in the father's case. Norfolk S. Ry. v. Fincham, 213 Va. 122 , 189 S.E.2d 380 (1972).

Applied in Hutto v. BIC Corp., 800 F. Supp. 1367 (E.D. Va. 1992).

CIRCUIT COURT OPINIONS

Parent's action for medical expenses. - Doctor's plea in bar and motions to dismiss and to join a child and his father were denied because the statute at issue did not expressly or implicitly restrict or bar the mother's common-law right of action for medical expenses in the manner alleged by the doctor where the first clause of the statute did not expressly state that a personal injury action on behalf of the child must be pending before the mother could bring her claim, the statute did not clearly express a legislative intent to change the common law and abridge the mother's right of action, and the mother's claim for medical expenses and the child's personal injury claim were governed by different statutes of limitation. Pancho v. Johnson, 94 Va. Cir. 64, 2016 Va. Cir. LEXIS 110 (Norfolk July 25, 2016).

Parents may initiate action as child's next friend. - For purposes of the parents' pregnancy-related medical malpractice lawsuit, because the doctor's allegedly tortious conduct occurred while the parents' son was still in utero, the court sustained defendants' pleas in bar as the parents' claims for their son's medical expenses were derivative of a claim by the son for personal injuries, and the facts affirmatively showed no claim for personal injuries on behalf of the son currently pending; furthermore, the son's personal injury claim had to be brought in his name by his next friend under § 8.01-8 , and could not be subsumed into a claim for personal injuries brought by the parents. Brown v. Tashman, 100 Va. Cir. 311, 2018 Va. Cir. LEXIS 620 (Fairfax County Nov. 9, 2018).

§ 8.01-36. (Effective January 1, 2022) Joinder of action of tort to infant with action for recovery of expenses incurred thereby and claim for recovery of expenses by infant.

Where there is pending any action by an infant plaintiff against a tort-feasor for a personal injury, where the cause of action accrued prior to July 1, 2013, any parent or guardian of such infant, who is entitled to recover from the same tort-feasor the expenses of curing or attempting to cure such infant from the result of such personal injury, may bring an action against such tort-feasor for such expenses, in the same court where such infant's case is pending, either in the action filed in behalf of the infant or in a separate action. If the claim for expenses be by separate action, upon motion of any party to either case, made to the court at least one week before the trial, both cases shall be tried together at the same time as parts of the same transaction. But separate verdicts when there is a jury trial shall be rendered, and the judgment shall distinctly separate the decision and judgment in the separate causes of action.
In the event of the cases being carried to the Court of Appeals, which may be done if there be the jurisdictional amount in either case, they shall both be carried together as one case and record, but the Court of Appeals shall clearly specify the decision in each case, separating them in the decision to the extent necessary to do justice among the parties. If an appeal is taken from the judgment of the Court of Appeals, the Supreme Court, in matters in which it grants the petition for appeal, shall clearly specify the decision in each case, separating them in the decision to the extent necessary to do justice among the parties.
For causes of action that accrue on or after July 1, 2013, the past and future expenses of curing or attempting to cure an infant of personal injuries proximately caused by a tort-feasor are damages recoverable by an infant in a cause of action against the tort-feasor and, if applicable to the infant's cause of action, are subject to the limitation on damages in § 8.01-581.15 . Any parent or guardian of such infant who has paid for or is personally obligated to pay for past or future expenses to cure or attempt to cure the infant shall have a lien and right of reimbursement against any recovery by the infant up to the amount the parent or guardian has actually paid or is personally obligated to pay. The right to reimbursement of any parent or guardian shall accrue upon the first tender of funds of any recovery from a tort-feasor to the infant. Court approval of the infant settlement shall release party defendants from all claims for past or future expenses of curing or attempting to cure the infant. Nothing in this section shall relieve a parent of the obligation to pay for the medical expenses of curing or attempting to cure the infant as such obligation exists under current law. (Code 1950, § 8-629; 1954, c. 333; 1973, c. 277; 2013, cc. 551, 689; 2021, Sp. Sess. I, c. 489.)

Section set out twice. - The section above is effective January 1, 2022. For the version of this section effective until January 1, 2022, see the preceding section, also numbered § 8.01-36 .

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

Editor's note. - Acts 2021, Sp. Sess. I, c. 489, cl. 3 provides: "That any case for which a notice of appeal to the Supreme Court has been filed prior to January 1, 2022, shall continue in the Supreme Court of Virginia and shall not be affected by the provisions of this act."

Acts 2021, Sp. Sess. I, c. 489, cl. 4 provides: "That any case for which a petition for appeal in a criminal case to the Court of Appeals has been filed prior to January 1, 2022, and a decision on such petition remains pending, such petition for appeal shall be deemed granted and the clerk of the Court of Appeals shall certify the granting of such petition to the trial court and all counsel. Such case shall be considered mature for purposes of further proceedings from the date of such certificate."

Acts 2021, Sp. Sess. I, c. 489, cl. 6 provides: "That the provisions of this act amending § 17.1-400 of the Code of Virginia shall become effective in due course and that the remaining provisions of this act shall become effective on January 1, 2022."

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 489, effective January 1, 2022, in subsection A in the second paragraph, substituted "Court of Appeals" for "Supreme Court" twice and added the last sentence.

Michie's Jurisprudence. - For related discussion, see 5C M.J. Damages, § 26; 9B M.J. Infants, § 16.

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

CASE NOTES

Applied in Hutto v. BIC Corp., 800 F. Supp. 1367 (E.D. Va. 1992).

CIRCUIT COURT OPINIONS

§ 8.01-37. Recovery of lost wages in action for injuries to emancipated infant.

In any suit for personal injuries brought on behalf of an emancipated infant, when such infant has sustained lost wages as a result of such injuries, he shall be entitled to recover such lost wages as a part of his damages. Where recovery is made hereunder or where recovery is attempted to be made and a decision on the merits adverse to said infant results, no other person may recover such lost wages.

(Code 1950, § 8-629.1; 1970, c. 421; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 5C M.J. Damages, § 27.

§ 8.01-37.1. Claims for medical services provided by United States; proof of reasonable value.

Whenever any person sustains personal injuries caused by the alleged negligence of another, and a claim against any person alleged to be liable is created in favor of the United States under federal law (42 U.S.C. § 2651 et seq.) for the reasonable value of medical, surgical or dental care and treatment provided, the injured party may, on behalf of the United States, claim the reasonable value of the medical services provided as an element of damages in a civil action against the person alleged to be liable. It shall not be required that the United States intervene in the action or be made a party in order to establish its claim. A sworn written statement of the authorized representative of the department or agency providing such services prepared in accordance with the regulations promulgated pursuant to 42 U.S.C. § 2652 shall be admissible as evidence of the reasonable value of the care and treatment provided.

(1984, c. 42; 1985, c. 205.)

CASE NOTES

No distinguishing between injured infants and injured adults. - This statute does not distinguish between injured infants and injured adults as it uses the term "injured persons." Hutto v. BIC Corp., 800 F. Supp. 1367 (E.D. Va. 1992).

Parents' cause of action for medical expenses accrued at the time they became liable to pay injured minor's medical bills. Hutto v. BIC Corp., 800 F. Supp. 1367 (E.D. Va. 1992).

§ 8.01-38. Tort liability of hospitals.

Hospital as referred to in this section shall include any institution within the definition of hospital in § 32.1-123 .

No hospital, as defined in this section, shall be immune from liability for negligence or any other tort on the ground that it is a charitable institution unless (i) such hospital renders exclusively charitable medical services for which service no bill for service is rendered to, nor any charge is ever made to the patient or (ii) the party alleging such negligence or other tort was accepted as a patient by such institution under an express written agreement executed by the hospital and delivered at the time of admission to the patient or the person admitting such patient providing that all medical services furnished such patient are to be supplied on a charitable basis without financial liability to the patient. However, notwithstanding the provisions of § 8.01-581.15 a hospital which is exempt from taxation pursuant to § 501(c)(3) of Title 26 of the United States Code (Internal Revenue Code of 1954) and which is insured against liability for negligence or other tort in an amount not less than $500,000 for each occurrence shall not be liable for damage in excess of the limits of such insurance, or in actions for medical malpractice pursuant to Chapter 21.1 (§ 8.01-581.1 et seq.) for damages in excess of the amount set forth in § 8.01-581.15 .

(Code 1950, § 8-629.2; 1974, c. 552; 1976, c. 765; 1977, c. 617; 1983, c. 496; 1986, cc. 389, 454; 2000, c. 464.)

The 2000 amendments. - The 2000 amendment by c. 464 substituted "for damages in excess of the amount set forth in § 8.01-581.15 " for "the lesser of the limits of such insurance or $1 million" at the end of the second paragraph.

Law review. - For survey of Virginia law on torts for the year 1973-1974, see 60 Va. L. Rev. 1615 (1974). For survey of Virginia tort law for the year 1975-1976, see 62 Va. L. Rev. 1489 (1976). For survey of Virginia law on torts for the year 1976-77, see 63 Va. L. Rev. 1491 (1977). For a re-examination of sovereign tort immunity in Virginia, see 15 U. Rich. L. Rev. 247 (1981).

For article, "Charitable Immunity: What Price Hath Charity?," see 28 U. Rich. L. Rev. 953 (1994).

For a review of damages in medical malpractice in Virginia, see 33 U. Rich. L. Rev. 919 (1999).

For article, "Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income Inequality, and Regional History Affect Tort Law," see 73 Wash & Lee Law Rev. 557 (2016).

Michie's Jurisprudence. - For related discussion, see 9B M.J. Hospitals and Sanitariums, § 7.

CASE NOTES

Immunity for hospitals providing medical care free of charge. - The Virginia General Assembly eliminated charitable immunity for most hospitals, essentially limiting its application to hospitals that provide medical care free of charge. Davidson v. Colonial Williamsburg Found., 817 F. Supp. 611 (E.D. Va. 1993).

Under this section, charitable hospitals are immune from liability in Virginia if they do not charge patients for services and 26 U.S.C. § 501(c)(3) tax-exempt hospitals have limited liability. Power v. Arlington Hosp. Ass'n, 42 F.3d 851 (4th Cir. 1994).

College was not entitled to use the defense of charitable immunity from tort liability, where the charter did not specifically restrict operation of the college to charitable or eleemosynary purposes nor was the manner of operation of the college strictly charitable in nature. Radosevic v. Virginia Intermont College, 633 F. Supp. 1084 (W.D. Va. 1986).

The public policy in Virginia favors a more restrictive approach to determining that an institution is immune from tort liability on the grounds of the charitable immunity doctrine. This is evidenced by the legislative abrogation of the doctrine of charitable immunity for hospitals and the judicial reluctance to automatically apply a charitable label to various institutions. Radosevic v. Virginia Intermont College, 633 F. Supp. 1084 (W.D. Va. 1986).

The 1986 amendment to this section merely clarified its application. Etheridge v. Medical Center Hosps., 237 Va. 87 , 376 S.E.2d 525 (1989).

Relationship to other laws. - Section 501(c)(3) health care provider was not immune from tort liability even though it was not a hospital as defined in § 32.1-123 , because the provider did not operate as a charitable institution. It was created to correct billing and collection issues, the ratio of its revenue to its charity work cost was disproportionate, it used a profit-based bonus system, and it did not accept charitable gifts. Univ. of Va. Health Servs. Found. v. Morris, 275 Va. 319 , 657 S.E.2d 512, 2008 Va. LEXIS 39 (2008).

CIRCUIT COURT OPINIONS

Provider of blood products. - Charitable immunity doctrine was not applicable to the blood provider in a wrongful death action brought after the deceased allegedly died from contaminated blood, because the provider supplied the hospital with blood products for a fee, and the hospital, in turn, charged its patients for the cost of providing the blood products, over $10,000 in the deceased's case; the indirect provision of blood and blood products by the provider did not make it a charity and did not make the deceased a recipient of a charitable benefit. Rogers v. Va. Blood Servs., 64 Va. Cir. 346, 2004 Va. Cir. LEXIS 195 (Richmond 2004).

Health Services Foundation was not entitled to use the defense of charitable immunity. - University health services foundation did not qualify for charitable immunity under § 8.01-38 because the foundation's articles of incorporation did not exclusively limit the foundation to charitable purposes, charity was not the exclusive or even the central purpose in the foundation's formation, and the foundation derived none of its revenue from charitable donations. Morris v. Univ. of Va. Health Servs. Found., 72 Va. Cir. 193, 2006 Va. Cir. LEXIS 293 (Charlottesville 2006), aff'd, remanded, 275 Va. 319 , 657 S.E.2d 512, 2008 Va. LEXIS 39 (2008).

Foundation not a hospital for purposes of bar on charitable immunity. - Foundation was not a hospital under § 8.01-38 , as the foundation was not a "facility" pursuant to § 32.1-123 ; rather, it was the entity that employed the physicians who cared for patients at a university hospital. The fact that the foundation owned and operated several clinics in outlying areas did not change this analysis. MacArthur v. Univ. of Va. Health Servs. Found., 72 Va. Cir. 322, 2006 Va. Cir. LEXIS 294 (Charlottesville December 8, 2006), rev'd, Univ. of Va. Health Servs. Found. v. Morris, 275 Va. 319 , 657 S.E.2d 512 (2008) (see note above).

Because a foundation did not own facilities and did not operate as a hospital, and was unlicensed, it was not a hospital for purposes of the statutory bar on charitable immunity; the foundation's plea of charitable immunity was sustained in a negligence action because, inter alia, the foundation operated for a charitable purpose of furthering the education of medical students. Wright v. Silver, 72 Va. Cir. 500, 2007 Va. Cir. LEXIS 14 (Norfolk 2007).

Nursing facility was a charitable institution. - In a nursing facility resident's action for damages following a fire, the facility, which was not licensed pursuant to § 32.1-123 et seq., was immune from tort liability under the doctrine of charitable immunity and did not fall under the scope of § 8.01-38 's denial of charitable immunity to hospitals. The facility's charter established the rebuttable presumption that it was a charitable institution, and the resident failed to rebut that presumption. Rogers v. Va. Home, 83 Va. Cir. 423, 2011 Va. Cir. LEXIS 138 (Richmond Oct. 5, 2011).

Nursing home's plea bar was sustained in a medical malpractice and negligence action brought by an administrator of a deceased patient's estate because the evidence proved that the home operated as a charity, immune from the tort claims under the statute; it was organized as a non-stock, not-for-profit corporation, and its articles of incorporation stated a charitable purpose. Estate of Zabrovskiy v. Beth Sholom Home of Va., Inc., 85 Va. Cir. 470, 2012 Va. Cir. LEXIS 191 (Henrico County Oct. 25, 2012).

§ 8.01-38.1. Limitation on recovery of punitive damages.

In any action accruing on or after July 1, 1988, including an action for medical malpractice under Chapter 21.1 (§ 8.01-581.1 et seq.), the total amount awarded for punitive damages against all defendants found to be liable shall be determined by the trier of fact. In no event shall the total amount awarded for punitive damages exceed $350,000. The jury shall not be advised of the limitation prescribed by this section. However, if a jury returns a verdict for punitive damages in excess of the maximum amount specified in this section, the judge shall reduce the award and enter judgment for such damages in the maximum amount provided by this section.

(1987, c. 255.)

Cross references. - As to award of punitive damages for stalking, see § 8.01-42.3 .

Law review. - For comment, "The Constitutional Attack on Virginia's Medical Malpractice Cap: Equal Protection and the Right to Jury Trial," see 22 U. Rich. L. Rev. 95 (1987).

For case note, "Punitive Damage 'Overkill' After TXO Production Corp. v. Alliance Resources: The Need for a Congressional Solution," see 36 Wm. & Mary L. Rev. 751 (1995).

For a note, "The Supreme Court's Backwards Proportionality Jurisprudence: Comparing Judicial Review of Excessive Criminal Punishments and Excessive Punitive Damages Awards," see 86 Va. L. Rev. 1249 (2000).

For Article, "Why Federal Rule of Evidence 403 is Unconstitutional, and Why it Matters," see 47 U. Rich. L. Rev. 1077 (2013).

Research References. - Conason, Deutsch, and Raffa, Damages in Tort Actions (Matthew Bender).

Michie's Jurisprudence. - For related discussion, see 5C M.J. Damages, § 74.

CASE NOTES

Constitutionality. - This section does not violate the due process guarantees secured by the Federal and Virginia Constitutions. Wackenhut Applied Technologies Ctr., Inc. v. Sygnetron Protection Sys., 979 F.2d 980 (4th Cir. 1992).

"Any action" not limited to unintentional tort actions. - There is no definitional language indicating that the term "any action" is limited to unintentional tort actions. Wackenhut Applied Technologies Ctr., Inc. v. Sygnetron Protection Sys., 979 F.2d 980 (4th Cir. 1992).

Review of punitive damage awards can no longer be conducted under "excessiveness" standard. - In order to comport with the due process requirements of the Fifth Amendment, post-trial and appellate review of punitive damage awards in the federal courts of the Fourth Circuit, based upon state statutes and common law, can no longer be conducted under Virginia's "excessiveness" standard but must instead proceed under standards similar to those enunciated by the Alabama courts in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986), Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. 1989), and Central Ala. Elec. Coop. v. Tapley, 546 So. 2d 371 (Ala. 1989), as upheld in Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S. Ct. 1032, 113 L. Ed. 2d 1 (1991); Johnson v. Hugo's Skateway, 949 F.2d 1338 (4th Cir. 1991), aff'd in part, rev'd in part, upon reh'g en banc, 974 F.2d 1408 (4th Cir. 1992).

Cap applies to action as a whole. - The plain meaning of this section dictates that the cap on punitive damage awards applies to the action as a whole and not to each defendant. Al-Abood v. El-Shamari, 217 F.3d 225, 2000 U.S. App. LEXIS 15437 (4th Cir. 2000).

Punitive damages award set aside. - In an action for a continuing trespass on real property due to encroaching fiber optic lines that were not installed by defendant business, the trial court's award of punitive damages to the landowners was reversed, as: (1) insufficient evidence was presented to support the same; (2) the business attempted to negotiate in good faith for their removal once it learned of their presence; (3) the landowners never sought an injunction requiring their immediate removal, but instead sought a cease and desist order three weeks prior to trial; and (4) in response to said letter, the business had already initiated the process to begin removal of the lines; hence, the business did not act with the degree of recklessness required to support a punitive damages award. Xspedius Mgmt. Co. of Va., L.L.C. v. Stephan, 269 Va. 421 , 611 S.E.2d 385, 2005 Va. LEXIS 36 (2005).

Where a former employee sued his former supervisor and employer for malicious prosecution and defamation, the trial court erred in denying the employer's motion to strike the punitive damages claim asserted against it, as there was no evidence it engaged in, authorized, or ratified the supervisor's actions, and the evidence did not establish that the supervisor was in a sufficiently high position so that his actions were actually the employer's actions for purposes of punitive damages liability. Egan v. Butler, 290 Va. 62 , 772 S.E.2d 765, 2015 Va. LEXIS 86 (2015).

Punitive damages award reduced. - In this malicious prosecution action, while there was a legally sufficient evidentiary basis for the jury's return of punitive damages, as a matter of law, the punitive damage award must be reduced to a total of $350,000 because defendants allowed the criminal prosecution of the employee to continue despite unequivocally knowing that either the story the dockworker relayed to the regional security investigator, that the regional security investigator relayed to another dockworker and the police was false, or the dockworker's handwritten statement was false, or both. Bennett v. R&L Carriers Shared Servs., LLC,, 2010 U.S. Dist. LEXIS 104884 (E.D. Va. Sept. 30, 2010).

Trial court abused its discretion in setting aside the jury award for compensatory damages. - The record did not support the conclusion that the award was excessive or was the product of jury confusion and commingling, and the trial court failed to consider elements of recovery upon which the compensatory damage award could be based and the evidence which supported those elements. Gov't Micro Res., Inc. v. Jackson, 271 Va. 29 , 624 S.E.2d 63, 2006 Va. LEXIS 1 (2006).

CIRCUIT COURT OPINIONS

Punitive damages based on driver's falling asleep. - Allegation that defendant had driven all night before transporting plaintiff's decedents could support a cause of action that would result in an award of punitive damages if the plaintiff were to prove that defendant driver knew or should have known that he was likely to fall asleep and as a result showed a reckless disregard for human life, and accordingly plaintiff's case would not be dismissed pending further discovery; nevertheless, plaintiff's request for $1,000,000 in punitive damages exceeded the statutory limit in § 8.01-38.1 . Bowen v. Tucker, 58 Va. Cir. 524, 2002 Va. Cir. LEXIS 173 (Wise County 2002).

Reduction of punitive damages ad damnum clause to statutory cap. - Court reduced the plaintiff's punitive damage ad damnum claim for her accident injuries from $500,000 to the $350,000 cap and found the plaintiff sufficiently alleged the truck driver's and the driver's employer's acts regarding prior knowledge of defective brakes, steering, and tires, and excessive length, to support punitive damages against both of them if proven. Small v. Hanson, 66 Va. Cir. 445, 2000 Va. Cir. LEXIS 649 (Nelson County 2000).

Because a resident's injury due to malpractice occurred on February 7, 2009, which was between July 1, 2008 and June 30, 2012, § 8.01-581.15 limited the resident's total recovery to $2 million, inclusive of compensatory and punitive damages, and § 8.01-38.1 limited punitive damages to a maximum award of $350,000; the statutory caps did not limit the resident's post-judgment interest under § 8.01-382 . Crouse v. Med. Facilities of Am. XLVIII, 86 Va. Cir. 168, 2013 Va. Cir. LEXIS 7 (Roanoke Jan. 22, 2013).

Although pre-judgment interest is limited by statutory caps, neither § 8.01-581.15 nor § 8.01-38.1 imposes a limit on post-judgment interest under § 8.01-382 . Crouse v. Med. Facilities of Am. XLVIII, 86 Va. Cir. 168, 2013 Va. Cir. LEXIS 7 (Roanoke Jan. 22, 2013).

Remittitur of punitive damages to equal compensatory damages award. - Jury's verdict in a defamation case required that it be remitted because the verdict was so excessive as to shock the conscience of the court and compelled the conclusion that the verdict was the product of passion or prejudice or some misunderstanding of the facts or the law. The court, therefore, awarded compensatory damages in a lesser amount and awarded punitive damages in an amount equal to the compensatory damages awarded. Thomas v. Psimas, 101 Va. Cir. 455, 2019 Va. Cir. LEXIS 19 (Norfolk Jan. 17, 2019).

Pleading of punitive damages. - While this section places a $350,000 statutory cap on punitive damages, by the clear language of the statute, the cap pertains to the amount of punitive damages that may recovered by a successful party, not the amount that may be sought in the complaint and to which a jury may find a defendant liable. Fid. Nat'l Title Ins. Co. v. Wash. Settlement Group, LLC, 87 Va. Cir. 77, 2013 Va. Cir. LEXIS 136 (Fairfax County Sept. 4, 2013).

Demurrer sustained as to punitive damages claim. - Demurrer was overruled as to punitive damages claim because the former employee alleged that the former employer's conduct was "willful and wanton." Hatten v. Campbell, 71 Va. Cir. 95, 2006 Va. Cir. LEXIS 118 (Chesterfield County 2006).

Animal advocacy group's demurrer was sustained as to the dog owners' claim for intentional infliction of emotional distress because reasonable people could find that taking the owners' dog and killing it was outrageous, the factual allegations sufficiently alleged the group's authorization of the act, and the owners could plead more than the statutory limit for punitive damages. Zarate v. People for the Ethical Treatment of Animals, 93 Va. Cir. 430, 2016 Va. Cir. LEXIS 105 (Norfolk June 14, 2016).

§ 8.01-39. Completion or acceptance of work not bar to action against independent contractor for personal injury, wrongful death or damage to property.

In any civil action in which it is alleged that personal injury, death by wrongful act or damage to property has resulted from the negligence of or breach of warranty by an independent contractor, it shall not be a defense by such contractor to such action that such contractor has completed such work or that such work has been accepted as satisfactory by the owner of the property upon which the work was done or by the person hiring such contractor.

Nothing contained herein shall be construed to limit, modify or otherwise affect the provisions of § 8.01-250 .

(Code 1950, § 8-629.3; 1974, c. 669; 1977, c. 617.)

Law review. - For survey of Virginia law on torts for the year 1973-1974, see 60 Va. L. Rev. 1615 (1974).

Michie's Jurisprudence. - For related discussion, see 3C M.J. Commercial Law, § 13.

Applied in Factory Mut. Ins. Co. v. DLR Contr., Inc.,, 2005 U.S. Dist. LEXIS 25876 (E.D. Va. Oct. 20, 2005).

§ 8.01-40. Unauthorized use of name or picture of any person; punitive damages; statute of limitations.

Any person whose name, portrait, or picture is used without having first obtained the written consent of such person, or if dead, of the surviving consort and if none, of the next of kin, or if a minor, the written consent of his or her parent or guardian, for advertising purposes or for the purposes of trade, such persons may maintain a suit in equity against the person, firm, or corporation so using such person's name, portrait, or picture to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use. And if the defendant shall have knowingly used such person's name, portrait or picture in such manner as is forbidden or declared to be unlawful by this chapter, the jury, in its discretion, may award punitive damages.
No action shall be commenced under this section more than 20 years after the death of such person.
(Code 1950, § 8-650; 1977, c. 617; 2015, c. 710.)

REVISERS' NOTE.

The first sentence of former § 8-650 was transferred to § 18.2-216.1 since its import is purely penal. The civil remedy retained in § 8.01-40 A was expanded by removing the restriction that the unauthorized use must pertain to a Virginia resident. Subsection A was otherwise rewritten without material change in substance.

Subsection B establishes a twenty-year limitation period which begins upon the death of the person whose name is misused.

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Cross references. - For rules of court as to practice and procedure in civil actions, see Rules 3:1 through 3:25.

The 2015 amendments. - The 2015 amendment by c. 710 substituted "punitive damages" for "exemplary damages" at the end of subsection A; and substituted "20 years" for "twenty years" in subsection B.

Law review. - For comment, "The Case for a Broader Right of Privacy in Virginia," see 7 Wm. & Mary L. Rev. 127 (1966). For survey of Virginia law on torts for the year 1976-77, see 63 Va. L. Rev. 1491 (1977).

For 1995 survey of civil practice and procedure, see 29 U. Rich. L. Rev. 897 (1995).

For a symposium, "Aggressive Newsgathering and the First Amendment," see 33 U. Rich. L. Rev. 1121 (2000).

For an essay, "Privacy and Celebrity: An Essay on the Nationalization of Intimacy," see 33 U. Rich. L. Rev. 1121 (2000).

For an article, "Protect the Press: A First Amendment Standard for Safeguarding Aggressive Newsgathering," see 33 U. Rich. L. Rev. 1143 (2000).

For an article, "Ride-alongs, Paparazzi, and Other Media Threats to Privacy," see 33 U. Rich. L. Rev. 1167 (2000).

For an article, "I Spy: The Newgatherer Under Cover," see 33 U. Rich. L. Rev. 1185 (2000).

For an article, "Qualified Intimacy, Celebrity, and the Case for a Newgathering Privilege," see 33 U. Rich. L. Rev. 1233 (2000).

Michie's Jurisprudence. - For related discussion, see 13B M.J. Names, § 2; 14B M.J. Photographs and Photographers, § 2; 16 M.J. Right of Privacy, § 1.

CASE NOTES

Constitutionality. - Subsection A of this section, as applied to the facts of the instant case - plaintiff's name was prominently featured in real estate flyer - is not constitutionally invalid under either the free-speech provisions of the First Amendment to the federal Constitution or the applicable provisions of Va. Const., Art. I, § 12. Town & Country Properties, Inc. v. Riggins, 249 Va. 387 , 457 S.E.2d 356 (1995).

This section is in derogation of the common law. Falwell v. Penthouse Int'l, Ltd., 521 F. Supp. 1204 (W.D. Va. 1981).

And therefore must be strictly construed. Falwell v. Penthouse Int'l, Ltd., 521 F. Supp. 1204 (W.D. Va. 1981).

Virginia recognizes no right of privacy other than that specifically conferred by this section. Falwell v. Penthouse Int'l, Ltd., 521 F. Supp. 1204 (W.D. Va. 1981).

No general right of privacy exists in the law of Virginia. Evans v. Sturgill, 430 F. Supp. 1209 (W.D. Va. 1977) (decided under prior law).

Claim of plaintiffs, a wife and children, regarding invasion of privacy could not withstand summary judgment because Virginia law recognized only a limited cause of action for invasion of privacy as to use of a name or picture of a plaintiff without authorization, pursuant to § 8.01-40 , and Virginia courts had never recognized a common-law tort of invasion of privacy. Bellotte v. Edwards,, 2010 U.S. App. LEXIS 15050 (4th Cir. July 21, 2010).

Except for the limited right conferred by this section. - See Evans v. Sturgill, 430 F. Supp. 1209 (W.D. Va. 1977) (decided under prior law).

Protective mantle extends to celebrities. - Ordinary citizens are entitled to the protective mantle of this section, and persons in a celebrity status should receive no less coverage in this respect. Town & Country Properties, Inc. v. Riggins, 249 Va. 387 , 457 S.E.2d 356 (1995).

Exception for matters that are newsworthy or of public interest. - An exception exists under this section for items that are "newsworthy" or "matters of public interest," which covers articles in newspapers and magazines, as well as pictures used to illustrate the articles, unless the picture bears no real relationship to the article or the article is an advertisement in disguise. Williams v. Newsweek, Inc., 63 F. Supp. 2d 734 (E.D. Va. 1999), aff'd, 202 F.3d 262 (4th Cir. 1999).

Promotional announcement of newsworthy event. - Though the evidence supported the jury's finding that a television station defamed a doctor by accusing him of sexually assaulting his patients, the use of the doctor's image in the station's promotional announcements was not an unauthorized use under this section, as the right of privacy did not extend to reports of newsworthy events. WJLA-TV v. Levin, 264 Va. 140 , 564 S.E.2d 383, 2002 Va. LEXIS 87 (2002).

Exception for uses that are incidental. - There is an exception to the statute for uses that are incidental to the purpose of the work, and according to this exception, a publisher will be liable for the publication of an unauthorized picture only if there is a direct and substantial connection between the appearance of the plaintiff's name or likeness and the main purpose and subject of the work. Williams v. Newsweek, Inc., 63 F. Supp. 2d 734 (E.D. Va. 1999), aff'd, 202 F.3d 262 (4th Cir. 1999).

Limitation period for actions under subsection A. - Subsection A is aimed at preventing the appropriation, without consent, of an individual's name or likeness while he is alive and for 20 years after he dies. It creates in an individual a species of property right in their name and likeness. Consequently, the limitation period contained in subsection B of § 8.01-243 should be applied. Lavery v. Automation Mgt. Consultants, Inc., 234 Va. 145 , 360 S.E.2d 336 (1987).

Subsection B is a cutoff statute, not a statute of limitation. - The legislature intended subsection B to be a cutoff statute, and, as such, to operate as an outside time period in which true statutes of limitations would operate and beyond which no suit based on subsection A could be maintained. The General Assembly in enacting subsection B was not setting a time period within which suit must be brought, instead, it was providing a cutoff point after which suit could not be brought. Lavery v. Automation Mgt. Consultants, Inc., 234 Va. 145 , 360 S.E.2d 336 (1987).

Notwithstanding the characterizations of subsection B of this section made by the revisers' notes under §§ 8.01-228 and 8.01-243 , subsection B of this section is not the statute of limitations applicable to a cause of action under subsection A. Lavery v. Automation Mgt. Consultants, Inc., 234 Va. 145 , 360 S.E.2d 336 (1987).

Use of New York decisions in construing section. - This section is substantially similar to § 51 of the New York Civil Rights Law, and the U.S. Court of Appeals for the Fourth Circuit would look to the New York courts for guidance in construing the Virginia privacy statute. Falwell v. Flynt, 797 F.2d 1270 (4th Cir. 1986), rev'd on other grounds, 485 U.S. 46, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988).

The General Assembly has fixed the "knowingly used" standard for punitive damages in the type of action under this section. The Virginia Supreme Court shall not engage in judicial legislation by adding ingredients not specified in the statute. Town & Country Properties, Inc. v. Riggins, 249 Va. 387 , 457 S.E.2d 356 (1995).

Proof of willful, wanton and/or malicious conduct is admissible, but unneeded for punitive damages for improper use of name. PTS Corp. v. Buckman, 263 Va. 613 , 561 S.E.2d 718, 2002 Va. LEXIS 58 (2002).

"Person." - Corporation could not have maintained an action under § 8.01-40 because the corporation was not a "person" under § 8.01-40 because the text of § 8.01-40 made clear that it applied only to natural persons, and the corporation was not a natural person. Silver Ring Splint Co. v. Digisplint, Inc., 567 F. Supp. 2d 847, 2008 U.S. Dist. LEXIS 48621 (W.D. Va. 2008).

An individual holds a property interest in his or her reputation, which represents the individual's personal identity in the community and which is the thing of value in the individual's name. Nossen v. Hoy, 750 F. Supp. 740 (E.D. Va. 1990).

Use of candidate's name or picture by political organization. - This section or its common-law counterparts in other states, may not be construed to prohibit political organizations from using a candidate's name or picture in a political campaign without his consent. Such an expansive interpretation of the law of tortious appropriation of name would trench on important freedoms secured by the First Amendment. Friends of Gramm v. Americans for Gramm, 587 F. Supp. 769 (E.D. Va. 1984).

Interview in magazine not for trade or advertising purpose. - Plaintiff minister's allegations that an interview conducted and published by defendant journalists and magazine invaded his privacy by commercializing his personality failed to state a claim upon which relief could be granted, since Virginia recognizes no common-law action for invasion of privacy, and the interview did not, as a matter of law, qualify as being for a trade or advertising purpose under this section. Falwell v. Penthouse Int'l, Ltd., 521 F. Supp. 1204 (W.D. Va. 1981).

Release of internet screen name is not an unauthorized use of a name. - Release of an Internet customer's screen name to an unknown third-party by an Internet access service provider, where the third-party allegedly published intimate details about the customer on a listserve, did not violate § 8.01-40 because (1) the provider released a fictitious name, and not a picture, and (2) the release was not made for trade purposes. Motise v. Am. Online, Inc., - F. Supp. 2d - , 2005 U.S. Dist. LEXIS 36991 (E.D. Va. June 24, 2005).

"False light" invasion of privacy not actionable. - Allegations that an interview conducted and published by defendant journalists and magazine invaded plaintiff minister's privacy by placing the plaintiff in a "false light" in the public eye failed to state a claim upon which relief could be granted, since Virginia recognizes no common-law action for invasion of privacy, and the acts complained of did not fall within the narrow purview of this section. Falwell v. Penthouse Int'l, Ltd., 521 F. Supp. 1204 (W.D. Va. 1981).

Where advertising parody of plaintiff published in defendants' magazine was not reasonably believable, and contained a disclaimer, publication of the parody did not constitute a use of plaintiff's name and likeness for purposes of trade. Falwell v. Flynt, 797 F.2d 1270 (4th Cir. 1986), rev'd on other grounds, 485 U.S. 46, 108 S. Ct. 876, 99 L. Ed. 2d 41 (1988).

Plaintiff's name was used for advertising purposes in a manner forbidden by this section where plaintiff's ex-wife specifically directed the printer who set the type and distributed the real estate flyer "to make the words John Riggins bigger than the other words" and to make them "stand out." Plaintiff's name, therefore, was an integral part of the flyer and could not be deemed merely incidental to the flyer's clear commercial message. Town & Country Properties, Inc. v. Riggins, 249 Va. 387 , 457 S.E.2d 356 (1995).

Motion to dismiss a claim for statutory invasion of privacy was denied because the allegations of the plaintiff, a former Air Force Academy cadet, satisfied the requirements of § 8.01-40 and fell under none of its exceptions; the use of his name and "facts" about his conduct and legal troubles was actionable because he properly alleged that the information was used as an advertisement to solicit business for the defendants, a website publisher and its officers and employees. Wiest v. E-Fense, Inc., 356 F. Supp. 2d 604, 2005 U.S. Dist. LEXIS 3474 (E.D. Va. 2005).

Misappropriation not found. - Under subsection A of § 8.01-40 , a bodybuilder failed to establish misappropriation of his image by the CEO of a television network to advertise the CEO's company's commercial diet shake, as the image, in its entirety, was only distributed for use in the advertisement of the network's weight loss challenge diet shake and not to promote the CEO's commercial shake. Busch v. Christian Broad. Network, Inc.,, 2007 U.S. Dist. LEXIS 27171 (E.D. Va. Apr. 12, 2007).

Potential client's use of an attorney's name in proposing the attorney to a court and opposing counsel as an expert witness concerning the reasonableness of attorney fees did not constitute unauthorized use of the name since such use did not constitute advertising. Devil's Advocate, LLC v. Zurich Am. Ins. Co., 666 Fed. Appx. 256, 2016 U.S. App. LEXIS 20952 (4th Cir. 2016).

Making sworn statements resulting in arrest warrant. - Plaintiff's actions in making sworn statements to the Commonwealth's attorney, resulting in the issuance of a warrant for the arrest of the defendant for felonious theft of an airplane, did not fall within the narrow purview of the limited right of privacy created by this section. Evans v. Sturgill, 430 F. Supp. 1209 (W.D. Va. 1977) (decided under prior law).

Statements about court-martial not public record. - Despite defendant website publisher and individuals' argument to the contrary, publication of statements about the court-martial of the plaintiff, a former Air Force Academy cadet, was not protected because the trial was a matter of public record; the issue was invasion of privacy, and the defendants' reliance on a public record was misplaced. Wiest v. E-Fense, Inc., 356 F. Supp. 2d 604, 2005 U.S. Dist. LEXIS 3474 (E.D. Va. 2005).

Applied in Ward v. Connor, 495 F. Supp. 434 (E.D. Va. 1980); Brown v. ABC, 704 F.2d 1296 (4th Cir. 1983); Superformance Int'l, Inc. v. Hartford Cas. Ins. Co., 203 F. Supp. 2d 587, 2002 U.S. Dist. LEXIS 9856 (E.D. Va. 2002).

CIRCUIT COURT OPINIONS

Report on local car dealership found to be newsworthy item and of public interest. - Demurrer was sustained as to plaintiffs' claims that defendants misappropriated the owner's, name, likeness, or image under subsection A of § 8.01-40 , as reporting on a local car dealership issue was a newsworthy item and of public interest, and this claim could, in no way, be deemed a use of name for advertising purposes or for the purpose of trade within the meaning of § 8.01-40 according to the assertions made. Graham v. Young Broad. of Richmond, Inc., 60 Va. Cir. 376, 2002 Va. Cir. LEXIS 408 (Richmond 2002).

Name and likeness not used for advertising purposes. - Sustaining of the newspaper publisher's demurrer to the mother's complaint for unauthorized use of her name and likeness and defamation was proper under subsection A of § 8.01-40 because the mother's name and likeness were not used for advertising purposes and she could not, by innuendo, create defamatory implications where there were none. Compton v. Foster, 82 Va. Cir. 279, 2011 Va. Cir. LEXIS 173 (Russell County Feb. 23, 2011).

Monetary sanctions awarded in use of law firm name. - Imposition of monetary sanctions against the counsel for a limited liability company (LLC) and the sole member of the LLC was just and appropriate because the action that was filed by the LLC against an attorney, for misappropriation of the LLC's name and for legal malpractice, was frivolously filed. The LLC was created to mirror in name an entity belonging to the attorney, who was embroiled as a plaintiff in actions involving the sole member of the LLC, and for which the charter had lapsed out of status and been reinstated by the attorney. Leiser, Leiser & Hennessy, PLLC v. Leiser, 97 Va. Cir. 130, 2017 Va. Cir. LEXIS 314 (Fairfax County Nov. 2, 2017).

§ 8.01-40.1. Action for injury resulting from violation of Computer Crimes Act; limitations.

Any person whose property or person is injured by reason of a violation of the provisions of the Virginia Computer Crimes Act (§ 18.2-152.1 et seq.) may sue and recover damages as provided in § 18.2-152.12 . An action shall be commenced before the earlier of (i) five years after the last act in the course of conduct constituting a violation of the Computer Crimes Act or (ii) two years after the plaintiff discovers or reasonably should have discovered the last act in the course of conduct constituting a violation of the Computer Crimes Act.

(1985, c. 92.)

Law review. - For article on Virginia's response to computer abuses, see 19 U. Rich. L. Rev. 85 (1984).

§ 8.01-40.2. Unsolicited transmission of advertising materials by facsimile machine.

Any person aggrieved by the intentional electronic or telephonic transmission to a facsimile device of unsolicited advertising material may bring an action against the person responsible for the transmission to enjoin further violations and to recover the greater of (i) actual damages sustained, together with costs and reasonable attorneys' fees, or (ii) $500. Carriers or other companies which provide facsimile transmission services shall not be responsible for transmissions of unsolicited advertising materials by their customers. An action brought pursuant to this section shall be commenced within two years of the transmission.
Any intentional transmission to a facsimile device of any unsolicited advertising material shall be a violation of the Virginia Consumer Protection Act (§ 59.1-196 et seq.).
(1990, c. 246; 2003, c. 800.)

The 2003 amendments. - The 2003 amendment by c. 800 designated the existing provisions of the section as subsection A and added subsection B; and in the first sentence of subsection A, deleted "offering goods, real estate, or services for sale or lease" following "advertising material" in the introductory language and substituted "$500" for "$200" in clause (ii).

§ 8.01-40.3. Unauthorized dissemination, etc., of criminal history record information; civil action.

Any person who disseminates, publishes, or maintains or causes to be disseminated, published, or maintained the criminal history record information as defined in § 9.1-101 of an individual pertaining to that individual's charge or arrest for a criminal offense and solicits, requests, or accepts money or other thing of value for removing such criminal history record information shall be liable to the individual who is the subject of the information for actual damages or $500, whichever is greater, in addition to reasonable attorney fees and costs.
Nothing in this section shall be construed to impose liability on:
1. An interactive computer service, as defined in 47 U.S.C. § 230(f), for content provided by another person.
2. Any speech protected by Article I, Section 12 of the Constitution of Virginia.
As used in this section, "criminal history record information" means the same as that term is defined in § 9.1-101 . (2015, cc. 414, 415.)

§ 8.01-40.4. Civil action for unlawful creation of image of another or unlawful dissemination or sale of images of another.

Any person injured by an individual who engaged in conduct that is prohibited under § 18.2-386.1 or 18.2-386.2 , whether or not the individual has been charged with or convicted of the alleged violation, may sue therefor and recover compensatory damages, punitive damages, and reasonable attorney fees and costs.
No action shall be commenced under this section more than two years after the later of (i) the date of the last act in violation of § 18.2-386.1 or 18.2-386.2 , (ii) the date on which such person attained 18 years of age, or (iii) the date on which such person discovered or reasonably should have discovered the prohibited conduct.
Nothing in this section shall be construed to impose liability on an interactive computer service, as defined in 47 U.S.C. § 230(f), for content provided by another person.
(2017, c. 656.)

Applied in Sheehy v. Williams, 850 S.E.2d 371, 2020 Va. LEXIS 139 (Nov. 25, 2020).

§ 8.01-41. Wrongful distraint, attachment.

If property be distrained for any rent not due, or attached for any rent not accruing, or taken under any attachment sued out without good cause, the owner of such property may, in an action against the party suing out the warrant of distress or attachment, recover damages for the wrongful distraint, seizure, or sale.

(Code 1950, § 8-651; 1977, c. 617.)

REVISERS' NOTE.

The former § 8-651 phrase "seizure, and also, if the property be sold, for the sale thereof" has been deleted and the words "distraint, seizure, or sale" substituted to conform with modern practice.

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Cross references. - As to procedure when distress has been levied and tenant is unable to give forthcoming bond, see § 8.01-130.7 .

As to recovery for distress not wrongful, but irregular, see § 8.01-130.12 .

For rules of court governing practice and procedure in civil actions, see Rules 3:1 through 3:25.

Michie's Jurisprudence. - For related discussion, see 2A M.J. Attachment and Garnishment, § 85; 11B M.J. Landlord and Tenant, §§ 24, 26.

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

CASE NOTES

The manifest intention of this section is to prevent the landlord from oppressing his tenant. The right to sue in damages for an illegal distress was recognized at common law and the enactment of the statute was in furtherance of the right so recognized. Gurfein v. Howell, 142 Va. 197 , 128 S.E. 644 (1925).

Ignorance no excuse. - The right to distrain or attach for rent has always been regarded by the courts as a most drastic one, and in order to restrain the landlord from a too free use of this power, he must exercise the same at his peril. The law presumes that he knows the amount of his tenant's indebtedness and ignorance on his part will not relieve him for compensatory damages for a mistake committed by him. Gurfein v. Howell, 142 Va. 197 , 128 S.E. 644 (1925).

As to reading of section in connection with § 8.01-551 and former § 8.01-552 , relating to the giving of attachment bonds, see Harris v. Lipson, 167 Va. 365 , 189 S.E. 349 (1937).

Action for trespass available. - Where a distress is made for rent pretended to be due, when in truth there is none due, and the goods distrained are not sold, the remedy is by action at common law, and trespass may be maintained. But the party suing is not obliged to bring trespass, he may waive the trespass and bring case. Olinger v. M'Chesney, 34 Va. (7 Leigh) 660 (1836).

Quashing of attachment does not imply lack of good cause. - Under this section the fact that an attachment is quashed on the ground that it was sued out without sufficient cause does not necessarily imply that there was lack of good cause. Harris v. Lipson, 167 Va. 365 , 189 S.E. 349 (1937).

When landlord liable for acts of agent. - A landlord who employs an agent to lease his property and receive the rents is not liable in damages for the act of the agent in unlawfully suing out a distress warrant against the tenant, unless he directed or approved the proceedings had under the distress warrant, or failed to repudiate such proceedings after full knowledge of them. Fishburne v. Engledove, 91 Va. 548 , 22 S.E. 354 (1895).

Measure of damages. - In the absence of any charge of fraud, malice, oppression, or other special aggravation, the measure of the plaintiff's damages is compensation for the injury suffered - such damages as are the natural and proximate result of the injury complained of. Fishburne v. Engledove, 91 Va. 548 , 22 S.E. 354 (1895).

In an action for illegal distress, instructions which ignore the right of plaintiff to recover nominal damages where an illegal levy has been made are erroneous under this section. Gurfein v. Howell, 142 Va. 197 , 128 S.E. 644 (1925).

Damages due for excessive distraint. - While a lien legally attaches to all property as might be on the premises when the lien is asserted or within 30 days prior to distraint, the landlord can distrain goods only to the extent necessary to satisfy the rent justly believed to be due, the tenant possessing an action for damages for excessive distraint. United States v. Melchiorre, 292 F. Supp. 305 (E.D. Va. 1968).

"Fair" damages erroneous. - Where a landlord distrains for an amount in excess of the rent due the tenant is entitled to recover at least nominal damages. But an instruction that in such a case the tenant is entitled to fair damages for wrong suffered is erroneous, as it is more than probable that "fair" means more than "compensation" to the average individual, and when the jury was told to find "fair damages" for the wrong suffered, instead of being told they could only compensate for the injury done, they conceived the idea, no doubt, that they had the right to punish instead of the power to compensate. Gurfein v. Howell, 142 Va. 197 , 128 S.E. 644 (1925).

Effect of failing to plead and prove special damages. - Where the notice of motion for illegally suing out a distress warrant did not allege and the proof failed to disclose any special damages suffered by plaintiff, a verdict for plaintiff in a substantial amount should be set aside as excessive. Gurfein v. Howell, 142 Va. 197 , 128 S.E. 644 (1925).

Plaintiff has burden of proving substantial damages. - In an action for illegal distress, the defendant was entitled to have the jury instructed that before the plaintiff could recover any except nominal damages, the burden was upon him to prove by a preponderance of the evidence that he had sustained substantial damages. To merely show that an illegal levy has been made is not sufficient to entitle the plaintiff to recover substantial damages. Gurfein v. Howell, 142 Va. 197 , 128 S.E. 644 (1925).

Plaintiff has burden of proving exemplary damages. - In order to recover exemplary damages in an action under this section the burden is upon the plaintiff to show not only that the act complained of is illegal, but that it was either malicious or oppressive, or that it was attended by especially aggravating circumstances. Evans v. Schuster, 178 Va. 61 , 16 S.E.2d 301 (1941).

When variance in allegations fatal. - In action for a wrongful distress, if the plaintiff allege that he held under a lease for five months, for $20.00 payable in repairs and labor, and at the trial it appear that the lease was for 12 months, for a money rent of $65.00, the variance will be fatal. Olinger v. M'Chesney, 34 Va. (7 Leigh) 660 (1836).

Value of property question of fact. - In an action for illegal distress the price obtained at a forced sale is not the sole criterion as to the value of the goods levied on. The value of the property at the time of the levy is a question of fact to be determined by the court or the jury trying the issue. Gurfein v. Howell, 142 Va. 197 , 128 S.E. 644 (1925).

What question for court and what for jury. - In an action under this section it was held that the question of exemplary damages should not have been submitted to the jury, since it was for the court to say whether the evidence tended to establish a proper case for their allowance, and for the jury to determine in such case whether they should be allowed. Evans v. Schuster, 178 Va. 61 , 16 S.E.2d 301 (1941).

Judgment in another action not evidence. - Judgment for the tenant in an action of unlawful detainer brought by the landlord is not evidence in a proceeding under this section that no rent was due at the time the distress warrant was sued out. Fishburne v. Engledove, 91 Va. 548 , 22 S.E. 354 (1895).

§ 8.01-42. Loss or injury to clothing in dyeing, dry cleaning, or laundering.

No person engaged in the business of dyeing, dry cleaning, or laundering wearing apparel, cloth or other articles, shall be liable, or in any action or suit against him be held liable, for the loss of, or injury to, any wearing apparel, cloth or other articles delivered to him to be dyed, dry cleaned, or laundered, in an amount greater than the purchase price minus depreciation of such wearing apparel, cloth or other articles, unless at the time of the delivery to him of any such wearing apparel, cloth or other articles, the value of the same, and when there is more than one piece or article the value of each piece or article, be agreed upon and evidenced by a writing stating such value, or separate values when there is more than one piece or article, signed by him; provided, however, that:

Nothing in this section contained shall be construed as requiring of any such person more than the exercise of such degree of care as is now imposed by existing law;
In no event shall any such person be held liable in any suit or action involving any such loss or injury for any sum greater than the damages suffered, and proved, by the plaintiff therein when such damages would not under the rules of law existing prior to June 18, 1920, exceed the purchase price minus depreciation of such wearing apparel, cloth, or other article;
Nothing in this section shall be construed as interfering with or inhibiting, or impairing the obligation of, any written contract between any hotel, railroad company, steamboat company or other patron and any person engaged in the business of dyeing, dry cleaning, or laundering of wearing apparel, cloth or other article, in relation to such work;
No liability shall rest upon or be borne by any hotel for any loss of or damage to wearing apparel, cloth or other article, the property of any guest of such hotel who shall have delivered, or caused the same to have been delivered, for dyeing, dry cleaning, or laundering to any person engaged in the business of dyeing, dry cleaning, or laundering.
[Repealed.]
(Code 1950, § 8-654; 1977, cc. 192, 617.)

Editor's note. - Pursuant to § 30-152 and Acts 1977, c. 617, cl. 4, the Code Commission has incorporated in § 8.01-42 as set out above the changes made in former § 8-654, corresponding to this section, by amendment in Acts 1977, c. 192. The amendment made the section applicable to dry cleaning as well as dyeing and laundering, substituted "greater than the purchase price minus depreciation of" for "exceeding twenty times the charges made or to be made by him for the work done or contemplated to be done on any" near the middle of the introductory paragraph, substituted "the purchase price minus depreciation of such wearing apparel, cloth, or other article" for "twenty times the amount of such charges" at the end of subdivision 2, and deleted former subdivision 5, which required the price to be charged, and a reference to the section, to be printed on laundry slips and similar slips used in the business.

§ 8.01-42.1. Civil action for racial, religious, or ethnic harassment, violence or vandalism.

An action for injunctive relief or civil damages, or both, shall lie for any person who is subjected to acts of (i) intimidation or harassment, (ii) violence directed against his person, or (iii) vandalism directed against his real or personal property, where such acts are motivated by racial, religious, gender, disability, gender identity, sexual orientation, or ethnic animosity.
Any aggrieved party who initiates and prevails in an action authorized by this section shall be entitled to damages, including punitive damages, and in the discretion of the court to an award of the cost of the litigation and reasonable attorney fees in an amount to be fixed by the court.
The provisions of this section shall not apply to any actions between an employee and his employer, or between or among employees of the same employer, for damages arising out of incidents occurring in the workplace or arising out of the employee-employer relationship.
As used in this section:
"Disability" means a physical or mental impairment that substantially limits one or more of a person's major life activities.

(1988, c. 492; 2020, cc. 746, 1171.)

Editor's note. - Acts 2020, cc. 746 and 1171, cl. 2 provides: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 854 of the Acts of Assembly of 2019 requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation cannot be determined for periods of commitment to the custody of the Department of Juvenile Justice."

Acts 2020, c. 746, cl. 3 provides: "That the provisions of this act shall not become effective unless an appropriation effectuating the purposes of this act is included in a general appropriation act passed in 2020 by the General Assembly that becomes law."

The 2020 amendments. - The 2020 amendments by cc. 746 and 1171 are identical, and in subsection A, inserted "gender, disability, gender identity, sexual orientation"; in subsection B, substituted "attorney fees" for "attorneys' fees"; added subsection D and made stylistic changes.

Law review. - For Comment, "Spelling out LGBT: Enumerating Sexual Orientation in Virginia's Anti-Bullying Law," see 47 U. Rich. L. Rev. 1373 (2013).

Michie's Jurisprudence. - For related discussion, see 3B M.J. Civil Rights, § 2.

CASE NOTES

Actions for religious discrimination in workplace not barred. - Although subsection (c) of this section is perhaps inartfully crafted in that it does not make it clear on its face that it must be read in conjunction with not only the remaining provisions of the same statute but also all related state and federal proscriptions that allow a cause of action for religious discrimination in the workplace, it simply does not preclude such suit if the plaintiff can meet the burden of proof. Cary v. SSA, - F. Supp. 2d - , 2001 U.S. Dist. LEXIS 9813 (E.D. Va. July 11, 2001).

Evidence sufficient to support finding of violation of this section. - The jury's finding that plaintiff was racially intimidated or harassed in violation of this section was supported by sufficient evidence where the plaintiff was the only black person in an otherwise totally white skating rink, and without prior warning, within an hour of the rink's closing, the plaintiff was waved off the floor and was told "They want to see you in the back room." Johnson v. Hugo's Skateway, 949 F.2d 1338 (4th Cir. 1991), aff'd in part, rev'd in part, upon reh'g en banc, 974 F.2d 1408 (4th Cir. 1992).

Award of compensatory and punitive damages. - Circuit court properly found - after a jury awarded compensatory and punitive damages to a worker stemming from the intentional statutory torts of racial harassment and stalking - that the evidence, consisting solely of mental anguish, emotional distress, and humiliation, was sufficient to support the jury's award of compensatory damages to a worker because a company and its president conceded liability on a worker's claims for racial harassment and stalking, both statutes expressly permitted compensatory and punitive damages, and neither required proof of physical injury. N. Va. Kitchen, Bath & Basement, Inc. v. Ellis, 856 S.E.2d 593, 2021 Va. LEXIS 37 (Apr. 15, 2021).

Awards of attorneys' fees under this section are upheld on appeal unless under all the facts and circumstances the award is clearly wrong. Johnson v. Hugo's Skateway, 949 F.2d 1338 (4th Cir. 1991), aff'd in part, rev'd in part, upon reh'g en banc, 974 F.2d 1408 (4th Cir. 1992).

CIRCUIT COURT OPINIONS

Claim not proper. - Trial court concluded that the first employee, second employee, corporation, and holding company's demurrer should be granted without prejudice to the business invitee to amend, as the business invitee did not plead sufficient factual allegations to support a cause of action under the hate crime statute, § 8.01-42.1 . Salmeron v. Wendy's Int'l, Inc., 70 Va. Cir. 247, 2006 Va. Cir. LEXIS 69 (Alexandria 2006).

§ 8.01-42.2. Liability of guest for hotel damage.

Any registered guest in a hotel, motel, inn or other place offering to the public transitory lodging or sleeping accommodations for compensation shall be civilly liable to the innkeeper for all property damage to such accommodation or its furnishings which occurs during the period of such person's occupancy when such damage results (i) from the negligence of the guest or of any person for whom he is legally responsible or (ii) from the failure of the guest to comply with reasonable rules and regulations of which he is given actual notice by the innkeeper.

(1989, c. 426.)

Michie's Jurisprudence. - For related discussion, see 9B M.J. Hotels, Inns and Restaurants, § 6.

§ 8.01-42.3. Civil action for stalking.

A victim has a civil cause of action against an individual who engaged in conduct that is prohibited under § 18.2-60.3 , whether or not the individual has been charged or convicted for the alleged violation, for the compensatory damages incurred by the victim as a result of that conduct, in addition to the costs for bringing the action. If compensatory damages are awarded, a victim may also be awarded punitive damages.
As used in this section: "Compensatory damages" includes damages for all of the defendant's acts prohibited by § 18.2-60.3 . "Victim" means a person who, because of the conduct of the defendant that is prohibited under § 18.2-60.3 , was placed in reasonable fear of death, criminal sexual assault, or bodily injury to himself or to a minor child of whom the person is a parent or legal guardian.
No action shall be commenced under this section more than two years after the most recent conduct prohibited under § 18.2-60.3 . (2001, c. 444.)

Cross references. - As to the statutory limitation on the recovery of punitive damages, see § 8.01-38.1 .

CASE NOTES

Relationship to other laws. - State court judgment in a creditor's favor on his civil cause of action for stalking in violation of Virginia law satisfied the willfulness element for nondischargability because the jury's verdict established that it must have found that debtor intended to cause fear or should have known that his conduct would cause fear. However, the judgment did not satisfy the malice element because in finding debtor liable for stalking, the Virginia jury could have found that he should have known that he would cause harm but not that he acted deliberately and intentionally. Moreno v. Basl (In re Basl),, 2018 Bankr. LEXIS 1164 (Bankr. E.D. Va. Apr. 18, 2018).

§ 8.01-42.4. Civil action for trafficking in persons.

Any person injured by reason of (i) a violation of clause (iii), (iv), or (v) of § 18.2-48 ; (ii) a violation of § 18.2-348 , 18.2-348 .1, 18.2-349 , 18.2-355 , 18.2-356 , 18.2-357 , 18.2-357.1 , or 18.2-368 ; or (iii) a felony violation of § 18.2-346.01 may sue therefor and recover compensatory damages, punitive damages, and reasonable attorney fees and costs.
No action shall be commenced under this section more than seven years after the later of the date on which such person (i) was no longer subject to the conduct prohibited by clause (iii), (iv), or (v) of § 18.2-48 or § 18.2-348 , 18.2-348 .1, 18.2-349 , 18.2-355 , 18.2-356 , 18.2-357 , 18.2-357.1 , or 18.2-368 or under a felony violation of § 18.2-346.01 or (ii) attained 18 years of age. (2016, cc. 557, 668; 2019, c. 458; 2021, Sp. Sess. I, c. 188.)

The 2019 amendments. - The 2019 amendment by c. 458 inserted "18.2-348.1" in subsections A and B.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 188, effective July 1, 2021, substituted " § 18.2-346.01 " for " § 18.2-346 " twice in the section.

§ 8.01-42.5. Civil action for female genital mutilation.

Any person injured by an individual who engaged in conduct that is prohibited under § 18.2-51.7 , whether or not the individual has been charged with or convicted of the alleged violation, may sue therefor and recover compensatory damages, punitive damages, and reasonable attorney fees and costs.
No action shall be commenced under this section more than 10 years after the later of (i) the date of the last act in violation of § 18.2-51.7 or (ii) the date on which such person attained 18 years of age. (2017, c. 667.)

§ 8.01-43. Action against parent for damage to public property by minor.

The Commonwealth, acting through the officers having charge of the public property involved, or the governing body of a county, city, town, or other political subdivision, or a school board may institute an action and recover from the parents or either of them of any minor living with such parents or either of them for damages suffered by reason of the willful or malicious destruction of, or damage to, public property by such minor. No more than $2,500 may be recovered from such parents or either of them as a result of any incident or occurrence on which such action is based.

(Code 1950, § 8-654.1; 1960, c. 132; 1972, c. 825; 1977, c. 617; 1983, c. 330; 1987, c. 193; 1994, cc. 508, 552; 1996, c. 698.)

Michie's Jurisprudence. - For related discussion, see 1A M.J. Agency, § 111; 14A M.J. Parent and Child, § 21.

§ 8.01-44. Action against parent for damage to private property by minor.

The owner of any property may institute an action and recover from the parents, or either of them, of any minor living with such parents, or either of them, for damages suffered by reason of the willful or malicious destruction of, or damage to, such property by such minor. No more than $2,500 may be recovered from such parents, or either of them, as a result of any incident or occurrence on which such action is based. Any recovery from the parent or parents of such minor shall not preclude full recovery from such minor except to the amount of the recovery from such parent or parents. The provisions of this statute shall be in addition to, and not in lieu of, any other law imposing upon a parent liability for the acts of his minor child.

(Code 1950, § 8-654.1:1; 1966, c. 532; 1972, c. 825; 1977, c. 617; 1984, c. 48; 1987, c. 193; 1994, cc. 508, 552; 1996, c. 698.)

Michie's Jurisprudence. - For related discussion, see 1A M.J. Agency, § 111; 14A M.J. Parent and Child, § 21.

CASE NOTES

This is a vicarious liability statute imposes liability without a determination of the parents' independent negligence. The "additional" law mentioned in the last sentence refers to existing law based on vicarious liability, such as the liability of a parent based upon a principal-agent relationship. Bell v. Hudgins, 232 Va. 491 , 352 S.E.2d 332 (1987).

In the absence of a principal-agent relationship, parents may not be liable for the malicious, intentional acts of their minor child based on the independent negligence of the parents in failing to control the child. Bell v. Hudgins, 232 Va. 491 , 352 S.E.2d 332 (1987).

CIRCUIT COURT OPINIONS

Underage defendant. - In an action brought under § 8.01-44 , defendant son did not need be a minor as of the date plaintiff filed this action against defendant son and his mother. Rather, defendant son needed to be and was a minor when he damaged plaintiff's property. Hawes v. Cummings, 89 Va. Cir. 289, 2014 Va. Cir. LEXIS 130 (Chesapeake Nov. 10, 2014).

§ 8.01-44.1. Immunity from civil liability of members of certain committees, etc.

Every member of any committee, board, group, commission, or other entity established pursuant to federal or state law or regulation which functions to authorize, review, evaluate, or make recommendations on the nature, conduct, activities, or procedures involved in or related to programs or research protocols conducted under the supervision of members of the faculty or staff of any hospital or institution of higher education, including but not limited to the design or conduct of experiments involving human subjects, shall be immune from civil liability for any act, decision, omission, or utterance done or made in performance of such duties as a member of such committee, board, group, commission, or other entity, unless such act, decision, omission, or utterance is done or made in bad faith or with malicious intent or unless the member, when acting to authorize the nature, conduct, activities, or procedures involved in or related to a program or research protocol, knows or reasonably should know that the program or research protocol is being or will be conducted in violation of Chapter 5.1 (§ 32.1-162.16 et seq.) of Title 32.1. However, the immunity created herein shall not apply to those persons engaged in the actual conduct of the programs or research protocols.

(1980, c. 479; 1981, c. 40; 1992, c. 603.)

Editor's note. - At the direction of the Virginia Code Commission, "or institution of higher education" was substituted for "college, or university" in text of this section to conform to Acts 2016, c. 588.

§ 8.01-44.2. Action against physician for vaccine-related injury or death.

In any case where a person could file or could have filed a petition for compensation pursuant to Subtitle 2 of Title XXI of the Public Health Services Act of the United States (42 U.S.C. § 300aa-10 et seq.) for the vaccine-related injury or death associated with the administration of a vaccine in the Commonwealth by or under the supervision of a physician licensed to practice medicine in Virginia, no civil action shall lie against such physician, or any person administering such vaccine on behalf of such physician for injury or death resulting from an adverse reaction to such vaccine, except where such injury or death was caused by gross negligence of the physician, his agents or employees, in the administration of such vaccine.

(1987, c. 664.)

Law review. - For note, "A One Shot Deal: The National Childhood Vaccine Injury Act," see 41 Wm. & Mary L. Rev. 309 (1999).

§ 8.01-44.3. Divulgence of communications by qualified interpreters and communications assistants.

If the content of any communication which is facilitated for compensation in the professional capacity of a qualified interpreter, as defined in § 51.5-113 , or in the professional capacity of any communications assistant employed by the statewide dual party relay service established under Article 5 (§ 56-484.4 et seq.) of Chapter 15 of Title 56, is divulged by such interpreter or assistant, any such party to the communication aggrieved by such divulgence may recover from such interpreter or assistant the greater of (i) actual damages sustained, together with costs and reasonable attorneys' fees, or (ii) $100. No such recovery shall be permitted if the interpreter or assistant and the parties to the communication have agreed that the interpreter or assistant may divulge the content of the communication.

(1992, c. 614.)

§ 8.01-44.4. Action for shoplifting and employee theft.

A merchant may recover a civil judgment against any adult or emancipated minor who shoplifts from that merchant for two times the unpaid retail value of the merchandise, but in no event an amount less than $50. However, if the merchant recovers the merchandise in merchantable condition, he shall be entitled to liquidated damages of no more than $350.
A merchant may recover a civil judgment against any person who commits employee theft for two times the unpaid retail value of the merchandise, but in no event an amount less than $50. However, if the merchant recovers the merchandise in merchantable condition, he shall be entitled to liquidated damages of no more than $350.
The prevailing party in any action brought pursuant to this section shall be entitled to reasonable attorneys' fees and costs not to exceed $150.
A conviction of or a plea of guilty to a violation of any other statute is not a prerequisite to commencement of a civil action pursuant to this section or enforcement of a judgment. No action may be initiated under this section during the pendency of a criminal prosecution based on the same allegations of fact; however the initiation of any criminal action against the perpetrator for the alleged offense under § 18.2-95 , 18.2-96 , 18.2-102.1 , or 18.2-103 or any other criminal offense defined under subsection F does not preclude a merchant from initiating or maintaining an action under this section once the prosecution has been concluded. A merchant may not recover more than the retail value of the merchandise, or more than the unpaid retail value of the merchandise if the merchandise is not recovered in a merchantable condition, for the same loss if both criminal and civil actions are initiated. However, nothing herein shall preclude a merchant from recovering damages in excess of the retail value of the merchandise, or the unpaid retail value of the merchandise if the merchandise is not recovered in a merchantable condition, if a criminal action is initiated. Nothing herein shall preclude a merchant from nonsuiting the civil action brought pursuant to this section and proceeding criminally under § 18.2-95 , 18.2-96 , 18.2-102.1 , or 18.2-103 or any other criminal offense defined under subsection F.
Prior to the commencement of any action under this section, a merchant may demand, in writing, that an individual who may be civilly liable under this section make appropriate payment to the merchant in consideration for the merchant's agreement not to commence any legal action under this section.
For purposes of this section:
"Employee theft" means the removal of any merchandise or cash from the premises of the merchant's establishment or the concealment of any merchandise or cash by a person employed by a merchant without the consent of the merchant and with the purpose or intent of appropriating the merchandise or cash to the employee's own or another's use without full payment.

"Shoplift" means any one or more of the following acts committed by a person without the consent of the merchant and with the purpose or intent of appropriating merchandise to that person's own or another's use without payment, obtaining merchandise at less than its stated sales price, or otherwise depriving a merchant of all or any part of the value or use of merchandise: (i) removing any merchandise from the premises of the merchant's establishment; (ii) concealing any merchandise; (iii) substituting, altering, removing, or disfiguring any label or price tag; (iv) transferring any merchandise from a container in which that merchandise is displayed or packaged to any other container; (v) disarming any alarm tag attached to any merchandise; or (vi) obtaining or attempting to obtain possession of any merchandise by charging that merchandise to another person without the authority of that person or by charging that merchandise to a fictitious person.

(1992, c. 721; 2005, cc. 142, 234; 2012, c. 526.)

The number of this section was assigned by the Virginia Code Commission, the number in the 1992 act having been 8.01-44.3 .

The 2005 amendments. - The 2005 amendments by cc. 142 and 234 are identical, and in subsections A and B, substituted "unpaid retail value" for "actual cost" and deleted "to the merchant" following "merchandise"; inserted "or another's" in both paragraphs of subsection F, and made minor stylistic changes.

The 2012 amendments. - The 2012 amendment by c. 526 rewrote subsection D.

Michie's Jurisprudence. - For related discussion, see 12A M.J. Larceny, § 2.

Applied in Stamathis v. Flying J, Inc.,, 2002 U.S. Dist. LEXIS 12398 (W.D. Va. July 9, 2002).

§ 8.01-44.5. Punitive damages for persons injured by intoxicated drivers.

In any action for personal injury or death arising from the operation of a motor vehicle, engine or train, the finder of fact may, in its discretion, award punitive damages to the plaintiff if the evidence proves that the defendant acted with malice toward the plaintiff or the defendant's conduct was so willful or wanton as to show a conscious disregard for the rights of others.

A defendant's conduct shall be deemed sufficiently willful or wanton as to show a conscious disregard for the rights of others when the evidence proves that (i) when the incident causing the injury or death occurred, the defendant had a blood alcohol concentration of 0.15 percent or more by weight by volume or 0.15 grams or more per 210 liters of breath; (ii) at the time the defendant began drinking alcohol, or during the time he was drinking alcohol, he knew or should have known that his ability to operate a motor vehicle, engine or train would be impaired, or when he was operating a motor vehicle he knew or should have known that his ability to operate a motor vehicle was impaired; and (iii) the defendant's intoxication was a proximate cause of the injury to or death of the plaintiff. For the purposes of clause (i), it shall be rebuttably presumed that the blood alcohol concentration at the time of the incident causing injury or death was at least as high as the test result as shown in a certificate issued pursuant to § 18.2-268.9 , in a certificate of analysis for a blood test administered pursuant to § 18.2-268.7 , provided that the test was administered in accordance with the provisions of §§ 18.2-268.1 through 18.2-268.12 , or in a certificate of analysis for a test performed by the Department of Forensic Science on whole blood drawn pursuant to a search warrant, provided that the test was administered in accordance with the provisions of §§ 18.2-268.5 , 18.2-268.6 , and 18.2-268.7 . In addition to any other forms of proof, a party may submit a copy of a certificate issued pursuant to § 18.2-268.9 , a certificate of analysis for a blood test administered pursuant to § 18.2-268.7, or a certificate of analysis for a test performed by the Department of Forensic Science on whole blood drawn pursuant to a search warrant, which shall be prima facie evidence of the facts contained therein and compliance with the applicable provisions of §§ 18.2-268.1 through 18.2-268.12 . For the purposes of clause (ii), it shall be rebuttably presumed that the defendant who has consumed alcohol knew or should have known that his ability to operate a motor vehicle, engine, or train was or would be impaired by such consumption of alcohol.

However, when a defendant has unreasonably refused to submit to a test of his blood alcohol content as required by § 18.2-268.2 , a defendant's conduct shall be deemed sufficiently willful or wanton as to show a conscious disregard for the rights of others when the evidence proves that (a) when the incident causing the injury or death occurred the defendant was intoxicated, which may be established by evidence concerning the conduct or condition of the defendant; (b) at the time the defendant began drinking alcohol, during the time he was drinking alcohol, or when he was operating a motor vehicle, he knew or should have known that his ability to operate a motor vehicle was impaired; and (c) the defendant's intoxication was a proximate cause of the injury to the plaintiff or death of the plaintiff's decedent. In addition to any other forms of proof, a party may submit a certified copy of a court's determination of unreasonable refusal pursuant to § 18.2-268.3 , which shall be prima facie evidence that the defendant unreasonably refused to submit to the test. For the purposes of clause (b), it shall be rebuttably presumed that the defendant who has consumed alcohol knew or should have known that his ability to operate a motor vehicle, engine, or train was or would be impaired by such consumption of alcohol.

Evidence of similar conduct by the same defendant subsequent to the date of the personal injury or death arising from the operation of a motor vehicle, engine, or train shall be admissible at trial for consideration by the jury or other finder of fact for the limited purpose of determining what amount of punitive damages may be appropriate to deter the defendant and others from similar future action.

(1994, c. 570; 1998, c. 722; 1999, c. 324; 2002, c. 879; 2013, c. 636; 2015, c. 710; 2016, cc. 510, 624; 2017, cc. 623, 671.)

The 1999 amendment inserted "or 0.15 grams or more per 210 liters of breath" in clause (i) of the second paragraph.

The 2002 amendments. - The 2002 amendment by c. 879, in the second paragraph, rewrote clause (ii), which formerly read: "at the time the defendant began, or during the time he was, drinking alcohol, he knew that he was going to operate a motor vehicle, engine or train; and"; and in the first sentence in the third paragraph, rewrote clause (ii), which formerly read: "at the time the defendant began, or during the time he was, drinking alcohol, he knew that he was going to operate a motor vehicle; and."

The 2013 amendments. - The 2013 amendment by c. 636 added the last two sentences in the second paragraph; and in the last paragraph, substituted the (a) through (c) designations for (i) through (iii) designations in the first sentence, and inserted "In addition to any other forms of proof, a party may submit" and "which" in the last sentence.

The 2015 amendments. - The 2015 amendment by c. 710 substituted "punitive damages" for "exemplary damages" in the first sentence of the section.

The 2016 amendments. - The 2016 amendments by c. 510 substituted "in accordance with the provisions of §§ 18.2-268.1 through 18.2-268.12 " for "within three hours of the incident causing injury or death" and inserted "and compliance with the provisions of §§ 18.2-268.1 through 18.2-268.12 " in the second paragraph.

The 2016 amendment by c. 624 added the last paragraph in the section.

The 2017 amendments. - The 2017 amendments by cc. 623 and 671, effective March 16, 2017, in the second paragraph, inserted "or in a certificate of analysis for a test performed by the Department of Forensic Science on whole blood drawn pursuant to a search warrant, provided that the test was administered in accordance with the provisions of §§ 18.2-268.5 , 18.2-268.6 , and 18.2-268.7 " in the second sentence, inserted "or a certificate of analysis for a test performed by the Department of Forensic Science on whole blood drawn pursuant to a search warrant" in the third sentence, and added the last sentence; in the third paragraph, inserted "or when he was operating a motor vehicle," in clause (b), and added the last sentence; and made stylistic changes.

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, §§ 112, 114, 118.

CASE NOTES

Plaintiff must prove each of elements. - This statute requires that the plaintiff prove each of the statutory elements and, if the plaintiff fails to produce any evidence that at the time the defendant began drinking alcohol, or during the time he or she was drinking alcohol, the defendant knew he or she was going to operate a motor vehicle, a claim for statutory punitive damages may be correctly struck. Webb v. Rivers, 256 Va. 460 , 507 S.E.2d 360 (1998) (decided prior to 2002 amendments, which rewrote clause (ii)).

No evidentiary presumption established. - Section 8.01-44.5 did not establish an evidentiary presumption regarding the results of a chemical analysis conducted on a sample of a driver's blood or breath taken after the driver's arrest under § 18.2-266 for driving under the influence of alcohol, and the trial court erred by not allowing a party who was injured by a drunk driver to show that although the drunk driver's blood alcohol concentration was below 0.15 percent three hours after the accident, it would have been above 0.15 percent at the time of the accident, and by dismissing the injured party's claim under § 8.01-44.5 for punitive damages. Woods v. Mendez, 265 Va. 68 , 574 S.E.2d 263, 2003 Va. LEXIS 18 (2003).

Intoxication alone was insufficient to establish willful and wanton misconduct. - Although mere intoxication would be insufficient to establish willful and wanton conduct, whether defendant acted willfully or wantonly, in conscious disregard for the safety of others, involved consideration of the entire conduct of the defendant; in the instant case, the jury could have properly concluded that defendant owner's negligent entrustment was more than simple negligence, as the owner, a passenger in the owner's own vehicle, told the intoxicated driver to speed up, while navigating roads that the owner knew were difficult to navigate. Allstate Ins. Co. v. Wade, 265 Va. 383 , 579 S.E.2d 180, 2003 Va. LEXIS 53 (2003).

Proof of "unreasonable refusal." - A plaintiff's failure to incorporate in the factual allegations of his complaint the final sentence of this section relating to the effect of providing a certified copy of a court's determination that the defendant unreasonably refused to submit to a breath test is not fatal to a claim for punitive damages in that compliance with this final sentence merely is but one way to prove an "unreasonable refusal," not the only way. Ritinski v. McGarity, 112 F. Supp. 2d 509, 2000 U.S. Dist. LEXIS 13090 (E.D. Va. 2000).

Jury instructions. - Trial court erred in giving a standard jury instruction regarding the imposition of punitive damages because, while the instruction contained all of the statutory elements, it did not properly state the law and improperly incorporated the appellate standard of review where it required the insureds prove that a driver's conduct was "egregious," an additional element not included in the statute. Cain v. Lee, 290 Va. 129 , 772 S.E.2d 894, 2015 Va. LEXIS 77 (2015).

CIRCUIT COURT OPINIONS

Constitutionality. - Aside from the limitations imposed by the Eighth and Fourteenth Amendments prohibiting excessive fines, cruel and unusual punishments, and grossly excessive punishments of tortfeasors, there is nothing barring jury awards of punitive damages; hence, the General Assembly was free to enact § 8.01-44.5 . Edwards v. Whitlock, 57 Va. Cir. 337, 2002 Va. Cir. LEXIS 213 (Chesterfield County 2002).

Proof of elements. - Because the certificate of analysis, admitted as genuine under a request for admissions, conclusively established blood alcohol content of defendant at 0.14 grams per 210 liters of breath, no evidence would be taken to contradict this level. Since count one established a statutory claim for punitive damages and would be insufficient to plead a common law claim, on defendant's motion the statutory claim for punitive damages would be dismissed. Hoggard v. Reitano, 54 Va. Cir. 513, 2001 Va. Cir. LEXIS 212 (Portsmouth 2001).

Injured party's claim for statutory punitive damages against a motorist under § 8.01-44.5 was sufficient because the injured party alleged (1) at the time of the accident the motorist's blood alcohol content was 0.15 or more, (2) at the time the motorist consumed alcohol he knew or should have known that his ability to drive would be impaired, and (3) the motorist's intoxication was a proximate cause of the accident. Fernandez v. Cadow, 61 Va. Cir. 436, 2003 Va. Cir. LEXIS 46 (Spotsylvania County 2003).

Punitive damages claim based on common law where it did not allege blood alcohol level of 0.15 or more. - In a claim seeking damages for personal injuries from an auto accident, where the motion for judgment alleged that, in addition to the ordinary allegations of negligence, defendant's behavior constituted willful and wanton conduct and conscious disregard for the rights and safety of others due to the fact defendant knew that driving after drinking alcoholic beverages was unsafe, knew from prior experience that alcohol would impair his ability to drive an automobile, and that he made the conscious and unconscionable decision to drive despite being unfit to do so, while the language largely tracked the elements of § 8.01-44.5 , it did not allege a blood alcohol level of 0.15 or more, so the punitive damages claim was based on common law. Carrolla v. Rogers, 61 Va. Cir. 447, 2003 Va. Cir. LEXIS 49 (Roanoke 2003).

§ 8.01-44.6. Action for injury to cemetery property.

The owner or operator of a cemetery company may bring an action to recover damages sustained, together with costs and reasonable attorneys' fees, against any person who willfully or maliciously destroys, mutilates, defaces, injures, or removes any tomb, monument, gravestone, or other structure placed within any cemetery, graveyard, or place of burial, or within any lot belonging to any memorial or monumental association, or any fence, railing, or other work for the protection or ornament of any tomb, monument, gravestone, or other structure aforesaid, or of any cemetery lot within any cemetery. The cemetery owner or operator may recover, as part of damages sustained, the cost of repair or replacement of damaged property, including any labor costs, regardless of whether the property damaged is owned by the cemetery or by another person.

(2004, c. 203.)

§ 8.01-44.7. Action for tampering with metering device and diverting service.

Any provider of services that have been tampered with or diverted in violation of § 18.2-163 may seek both injunctive and equitable relief, and an award of damages, including reasonable attorney fees and costs. In addition to any other remedy provided by law, the party aggrieved may recover an award of actual damages or $500 whichever is greater for each action.

(2006, c. 350.)

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

Article 4. Defamation.

§ 8.01-45. Action for insulting words.

All words shall be actionable which from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace.

(Code 1950, § 8-630; 1977, c. 617.)

Cross references. - For criminal provision regarding abusive language, see § 18.2-416 . For criminal provision as to slander and libel, see § 18.2-417 .

For rules of court governing practice and procedure in civil actions, see Rules 3:1 through 3:25.

Law review. - For note, "Qualified Privilege as a Defense to Defamation," see 45 Va. L. Rev. 772 (1959). For note on the merger of libel and slander, see 47 Va. L. Rev. 1116 (1961). For survey of Virginia law on torts for the year 1973-1974, see 60 Va. L. Rev. 1615 (1974). For article on model abusive debt collection statute for Virginia, see 15 Wm. & Mary L. Rev. 567 (1974). For note on the corporate libel plaintiff, see 38 Wash. & Lee L. Rev. 716 (1981).

For article on libel and slander in Virginia, see 17 U. Rich. L. Rev. 769 (1983). For article, "Reputation, Compensation, and Proof," see 25 Wm. & Mary L. Rev. 747 (1984). For article, "Defamation and the First Amendment: The End of the Affair," see 25 Wm. & Mary L. Rev. 779 (1984). For article, "First Amendment Limitations on Recovery From the Press - An Extended Comment on 'The Anderson Solution'," see 25 Wm. & Mary L. Rev. 793 (1984). For article, "The Plaintiff's Burden in Defamation: Awareness and Falsity," see 25 Wm. & Mary L. Rev. 825 (1984). For article, "Hard Defamation Cases," see 25 Wm. & Mary L. Rev. 891 (1984). For article on defamation of public figures, see 25 Wm. & Mary L. Rev. 905 (1984). For article, "Of Public Figures and Public Interest - The Libel Law Conundrum," see 25 Wm. & Mary L. Rev. 937 (1984). For article, "Public Figures Revisited," see 25 Wm. & Mary L. Rev. 957 (1984). For article on modern defamation law in Virginia, see 21 U. Rich. L. Rev. 3 (1986).

For an article, "Civil Practice and Procedure," see 32 U. Rich. L. Rev. 1009 (1998).

Michie's Jurisprudence. - For related discussion, see 5C M.J. Damages, § 72; 12A M.J. Libel and Slander, §§ 2-4, 9, 10, 12, 18, 25, 29, 32, 38, 39, 41, 46, 47.

CASE NOTES

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

I. DECISIONS UNDER CURRENT LAW.

A. GENERAL CONSIDERATION.

Constitutional limitations on "insulting words" claim. - Although application of this provision is no longer confined to its original purpose of preventing duels, it has been interpreted by Virginia courts to be virtually co-extensive with the common-law action for defamation. For this reason any constitutional limitations that apply to the plaintiffs' defamation action must necessarily apply to their "insulting words" claim as well. Potomac Valve & Fitting, Inc. v. Crawford Fitting Co., 829 F.2d 1280 (4th Cir. 1987).

Opinions protected by First Amendment. - Where the defendants' statement is capable of being proved or disproved, but when viewed in context it is clearly an opinion, it is therefore protected by the First Amendment. Potomac Valve & Fitting, Inc. v. Crawford Fitting Co., 829 F.2d 1280 (4th Cir. 1987).

Action for insulting words assimilated to common-law action for libel and slander. - Where the plaintiff's motion for judgment was unclear as to whether the proceeding was under this section or involved common-law libel, no distinction was required to be made, since the trial of an action for insulting words is completely assimilated to the common-law action for libel or slander, and from the standpoint of the law of this state is an action for libel or slander. Mills v. Kingsport Times-News, 475 F. Supp. 1005 (W.D. Va. 1979).

The trial of an action for insulting words is completely assimilated to the common-law action for libel and slander, and from the standpoint of the Virginia law it is an action for libel and slander. Welch v. Kennedy Piggly Wiggly Stores, Inc., 63 Bankr. 888 (W.D. Va. 1986).

In many cases defamation claims and claims brought under this section "must ineluctably 'rise or fall together.' " Dwyer v. Smith, 867 F.2d 184 (4th Cir. 1989).

Must be danger of violent reaction. - This section only penalizes words used in a verbal attack directed at a particular individual in a face to face confrontation that presents a clear and present danger of a violent physical reaction. Thompson v. Town of Front Royal, Civ. Action No. 5:98CV00083, 2000 U.S. Dist. LEXIS 3876 (W.D. Va. Mar. 16, 2000).

This section plainly requires that the words used must not only be insults, but they must also "tend to violence and breach of the peace." Allen & Rocks, Inc. v. Dowell, 252 Va. 439 , 477 S.E.2d 741 (1996).

In Virginia, a libel plaintiff must show that the alleged libel was published "of or concerning" him. He need not show that he was mentioned by name in the publication. Instead, the plaintiff satisfies the "of or concerning" test if he shows that the publication was intended to refer to him and would be so understood by persons reading it who knew him. In other words, the test is met if the plaintiff shows that the publication was "in its description or identification such as to lead those who knew or knew of the plaintiff to believe that the article was intended to refer to [him]." But if the publication on its face does not show that it applies to the plaintiff, the publication is not actionable, unless the allegations and supporting contemporaneous facts connect the libelous words to the plaintiff. If the rule were otherwise, any plaintiff could adopt and apply to himself any libelous matter and obtain a recovery. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom., Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

In order to establish prima facie evidence of publication, a plaintiff is not required to present testimony from a third party regarding what that person heard and understood, or to identify the person to whom the defamatory words were published. Instead, a plaintiff may prove publication of defamatory remarks by either direct or circumstantial evidence that the remarks were heard by a third party who understood these remarks as referring to the plaintiff in a defamatory sense. Food Lion, Inc. v. Melton, 250 Va. 144 , 458 S.E.2d 580 (1995).

As a matter of state law the negligence standard should be applicable to media and nonmedia defendants alike. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

The application of this negligence standard is expressly limited, however, to circumstances where the defamatory statement makes substantial danger to reputation apparent. The trial judge shall make such determination as a matter of law. If, on the other hand, no substantial danger to reputation is apparent from the statement in issue, New York Times malice must be established to recover compensatory damages. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

Plaintiff must prove falsity. - In an action brought by a private individual to recover actual, compensatory damages for a defamatory publication, the plaintiff may recover upon proof by a preponderance of the evidence that the publication was false, and that the defendant either knew it to be false, or believing it to be true, lacked reasonable grounds for such belief, or acted negligently in failing to ascertain the facts on which the publication was based. Under this standard, truth no longer is an affirmative defense to be established by the defendant. Instead, the plaintiff must prove falsity, because he is required to establish negligence with respect to such falsity. Such liability may be based upon negligence, whether or not the publication in question relates to a matter of public or general concern. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

The threshold determination to be made by trial judge on the question of whether there is substantial danger to reputation apparent from the content of a publication resembles the determination traditionally made by the court on the question whether a statement is libelous per se. A trial judge must decide, viewing the circumstances objectively, whether a reasonable and prudent editor should have anticipated that the words used contained an imputation necessarily harmful to reputation. The harmful potential of the words used here, i.e., that plaintiffs were accused of crimes, should have been apparent to the paper's editor, if he had exercised ordinary care. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

When a qualified privilege is established and not defeated by a plaintiff's evidence of common-law malice, the negligence standard is subsumed in the higher standard and it is of no consequence that the plaintiff might have met the lower standard of negligence. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

Failure of newspaper reporter to verify accusations made against plaintiff. - In a defamation action brought by a school teacher against newspaper reporter and his employer, where a number of supervisors, a fellow teacher, and students, including some classmates of the complaining students, testified as to plaintiff's good qualities as a teacher and contradicted virtually all the negative statements made by the persons the reporter interviewed, the students who contradicted the negative testimony were all shown to have been readily available for interview in the Richmond area, while the school authorities would not furnish the reporter with the names or addresses of other students in plaintiff's classes, the jury could have inferred from the evidence that the reporter could have obtained this information from the students he interviewed but negligently failed to do so, and, in fact, one student gave the reporter the names of some of the other students, but the reporter apparently did nothing with the information, the jury had ample evidence from which to conclude that a reasonably prudent news reporter writing the article could readily have contacted a number of other students to verify (or contradict) these accusations and should have done so. Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277 , 362 S.E.2d 32 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228 (1988).

Private plaintiff's burden of proof in libel action against nonmedia defendant. - In a case involving a private plaintiff in a libel action against a nonmedia defendant, it is not necessary to show actual out-of-pocket damage in a nonlibel per se action and a showing of loss of reputation and standing in the community, embarrassment, humiliation, and mental suffering will be sufficient for the award of damages. Sateren v. Montgomery Ward & Co., 234 Va. 303 , 362 S.E.2d 324 (1987).

Adoption of a "journalistic malpractice test" would be inappropriate for a number of reasons: (a) While responsible newspapers serve many worthwhile objectives, profit is an important consideration. Startling, sensational stories tend to sell more newspapers than dull, factual stories. Thus, there is an inherent conflict of interest when a journalist is required to draw inferences from news items. It seems imprudent to permit media experts to set a standard under these circumstances. (b) The evidence does not establish that journalists are required to have special education for their profession, as engineers, doctors, lawyers, or certified public accountants must, nor have they acquired knowledge, training, and experience unique to certain trades focusing upon scientific matters, such as electricity, blasting and the like, which a jury could not understand without expert assistance. (c) The adoption of such a standard might mean that there could be no recovery unless a media expert testified that the conduct did not meet the standard of care in the journalistic community. Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277 , 362 S.E.2d 32 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228 (1988).

Profane language used during labor dispute held not to support liability under this section. See Crawford v. United Steel Workers, 230 Va. 217 , 335 S.E.2d 828 (1985), cert. denied, 475 U.S. 1095, 106 S. Ct. 1490, 89 L. Ed. 2d 892 (1986).

Erroneous report of commitment for psychiatric evaluation. - An erroneous newspaper report that the plaintiff had been committed to a state hospital for psychiatric evaluation as the result of a preliminary hearing on a homicide charge was not libelous per se; however, a libel per quod action did lie in that the plaintiff's allegations of humiliation, embarrassment, and permanent stigma, occasioned by inquiries about her commitment, would give rise to special damages if proven. Mills v. Kingsport Times-News, 475 F. Supp. 1005 (W.D. Va. 1979).

B. DAMAGES.

Precision hard to obtain in damages calculation. - It is difficult, if not impossible, to prove with mathematical precision the quantum of damages for injury to reputation, humiliation, and embarrassment which may flow from a defamation. Schnupp v. Smith, 249 Va. 353 , 457 S.E.2d 42 (1995).

On the issue of compensatory damages in libel cases when New York Times malice need not be proven, Virginia will continue to follow the established standard of review mandated by § 8.01-680 , that is, "the judgment of the trial court shall not be set aside unless it appears from the evidence that such judgment is plainly wrong or without evidence to support it." Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

Punitive damages. - An appellate court in Virginia, on the issue of punitive damages or where "New York Times malice" must be proven, must independently decide whether the evidence in the record on appeal is sufficient to support a finding of New York Times "actual malice" by clear and convincing proof. This does not mean that the reviewing court may disregard the determinations made on credibility of witnesses by the trier of fact or that the presumption of correctness that attaches to factual findings is to be discounted. The rule simply means that appellate judges in such a case must examine the facts pertinent to the punitive damage award and exercise independent judgment to "determine whether the record establishes actual malice with convincing clarity." Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

Public school teacher not a public official. - Public school teacher was not in that class of public officials which can only recover compensatory damages for defamation by establishing the constitutional malice described in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964); Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277 , 362 S.E.2d 32 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228 (1988).

Appellate review of proof of malice. - To sustain an award of punitive damages, plaintiff, as a private person, is required to establish New York Times malice by clear and convincing proof. To decide if that requirement has been met, the Supreme Court conducts an "independent examination of the whole record," resolving disputed factual issues and inferences favorably to the plaintiff. Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277 , 362 S.E.2d 32 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228 (1988).

C. ILLUSTRATIONS OF ACTIONABLE WORDS.

Defamatory words need not be sufficient within themselves to establish all the elements of the offense imputed. Such simplicity is not required. Schnupp v. Smith, 249 Va. 353 , 457 S.E.2d 42 (1995).

In determining whether or not language does impute a criminal offense the words must be construed in the plain and popular sense in which the rest of the world would naturally understand them. It is not necessary that they should make the charge in express terms. It is sufficient if they consist of a statement of matters which would naturally and presumably be understood by those who heard them as charging a crime. Schnupp v. Smith, 249 Va. 353 , 457 S.E.2d 42 (1995).

It is general rule that allegedly defamatory words are to be taken in their plain and natural meaning and to be understood by courts and juries as other people would understand them, and according to the sense in which they appear to have been used. In order to render words defamatory and actionable it is not necessary that the defamatory charge be in direct terms but it may be made indirectly, and it matters not how artful or disguised the modes in which the meaning is concealed if it is in fact defamatory. Accordingly, a defamatory charge may be made by inference, implication or insinuation. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

Statements on website actionable. - Motion to dismiss was denied because the plaintiff, a former Air Force Academy cadet, alleged that the defendants' website statements were false, and where the statements did not represent a fair and accurate description of the cadet's court martial proceeding, the defendants were not shielded from liability by reliance on a public record; the website statements constituted "actionable statements" for purposes of the cadet's claims for defamation and for violation of the insulting words statute, claims that were virtually coextensive under Virginia law. Wiest v. E-Fense, Inc., 356 F. Supp. 2d 604, 2005 U.S. Dist. LEXIS 3474 (E.D. Va. 2005).

Words that impute the commission of a crime that is punishable by imprisonment in a state or federal institution are actionable per se. Schnupp v. Smith, 249 Va. 353 , 457 S.E.2d 42 (1995).

Content of a news item which states that an unmarried woman is pregnant creates a substantial danger to reputation and should warn a reasonably prudent editor of the item's defamatory potential. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

Words "nigger" and "niggers" not fighting words. - The words "nigger" and "niggers," allegedly spoken by the African-American plaintiff's supervisor, without more specific allegations of how, when and to whom they were spoken, were not enough to rise to the level of fighting words under this section. The plaintiff did not allege facts in his complaint to prove that any supposed fighting words referred to him and the allegations in the complaint could not be construed as having been directed at a particular individual in a face to face confrontation and as presenting a clear and present danger of a violent physical reaction. Thompson v. Town of Front Royal, Civ. Action No. 5:98CV00083, 2000 U.S. Dist. LEXIS 3876 (W.D. Va. Mar. 16, 2000).

Comments on work performance. - The defendants correctly contended that the language used by board chairman explaining former employee's work performance was not such as to provoke violence or breach of the peace, as required by this section, and accordingly, that the trial court should not have submitted the insulting words issue to the jury. Allen & Rocks, Inc. v. Dowell, 252 Va. 439 , 477 S.E.2d 741 (1996).

D. EVIDENCE.

Expert testimony as to standards for investigative reporting properly excluded. - The trial court did not err in excluding evidence from an expert witness, a nationally known journalist, proffered on the standards for investigative reporting. A jury in this state is as competent as any expert to form an intelligent and accurate opinion as to whether a reporter should have conducted additional investigations. Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277 , 362 S.E.2d 32 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228 (1988).

Absolute privilege. - Statements an attorney made in an email he sent to an attorney who represented a Virginia corporation that made an offer to purchase assets that belonged to a corporate debtor were absolutely privileged because they were made in the context of three judicial proceedings that were ongoing: the debtor's Chapter 11 bankruptcy case; sale proceedings under 11 U.S.C.S. § 363; and the Virginia corporation's motion to set aside the court's order approving the sale to another buyer; because the statements were privileged, the attorney and his law firm were entitled to an order dismissing the Virginia corporation's claims alleging that the attorney and his law firm committed defamation and violated § 8.01-45 . Chesapeake Trust v. Chesapeake Bay Enter. (In re Potomac Supply Corp.),, 2013 Bankr. LEXIS 5435 (Bankr. E.D. Va. Dec. 30, 2013).

E. PLEADING AND PRACTICE.

Jurisdiction. - Defamation claim and an insulting words claim were remanded to state court because the mere mention of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.S. §§ 1601 and 1692-1692o, in a complaint which sought damages exclusively under state defamation and insulting words law was insufficient to vest the court with federal question jurisdiction under 28 U.S.C.S. § 1331, since a violation of the FDCPA was not a necessary element of, and might not have been relevant to, a Virginia defamation or insulting words claim. Martin v. Lagualt, 315 F. Supp. 2d 811, 2004 U.S. Dist. LEXIS 7428 (E.D. Va. 2004).

Exact words must be alleged. - The exact words charged to have been used by the defendant must be alleged in order to state a cause of action for insulting words under this section. Thompson v. Town of Front Royal, Civ. Action No. 5:98CV00083, 2000 U.S. Dist. LEXIS 3876 (W.D. Va. Mar. 16, 2000).

No duty to segregate defamatory and non-defamatory material in jury instructions. - There is no duty upon a trial court to segregate potentially defamatory from non-defamatory material in granting instructions to the jury. Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277 , 362 S.E.2d 32 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228 (1988).

It was jury's function to determine which statements in newspaper article were defamatory statements of fact about the plaintiff, taking into consideration the entire background of the case and the context in which those statements were made. Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277 , 362 S.E.2d 32 (1987), cert. denied, 486 U.S. 1023, 108 S. Ct. 1997, 100 L. Ed. 2d 228 (1988).

Objective basis for belief. - Where a city resident had an objective basis for his belief that the city's mayor had allowed 200 low-income housing units to be built in the city, his political ads in opposition to the mayor's candidacy were not published with actual malice, and a jury verdict for the mayor in his defamation action was reversed. Jordan v. Kollman, 269 Va. 569 , 612 S.E.2d 203, 2005 Va. LEXIS 48 (2005).

Sufficiency of complaint. - In a case in which a former employee alleged that her former employer violated the Virginia insulting words statute, § 8.01-45 , and the former employer moved to dismiss that claim pursuant to Fed. R. Civ. P. 12(b)(6), under the Iqbal test, the complaint alleged sufficient facts to establish a prima facie case, and, contrary to the former employer's assertion, dismissal was not required on the basis that there was not a face-to-face confrontation. A reasonable fact finder could infer that the termination letter and the mass distribution of an erroneous newspaper article constituted statements that could lead to violence. Trail v. General Dynamics Armament & Tech. Prods.,, 2010 U.S. Dist. LEXIS 28225 (W.D. Va. Mar. 25, 2010).

II. DECISIONS UNDER PRIOR LAW.

A. GENERAL CONSIDERATION.

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

Original purpose now of no importance. - Since the amendment of the original statute in 1849, in dealing with the statute against insulting words, no weight or importance has been attached to the purpose for which it was originally enacted. The original object of the statute, in the matter of preventing dueling, is no longer entitled to consideration in considering the statute. W.T. Grant Co. v. Owens, 149 Va. 906 , 141 S.E. 860 (1928).

The purpose now is to prevent breaches of peace. - The purpose of this section was to extend the common law so as to give a right of action for insulting words, even though containing no imputation which was actionable at common law. The design of the statute is to prevent breaches of the peace, to discourage offensive and excessive freedom in the use of that unruly member, the tongue, to inflict punishment therefor, and by subjecting those who are so hasty of temper and inconsiderate of the feelings of others as to insult them to such actual and punitive damages as may be awarded by a jury. Hines v. Gravins, 136 Va. 313 , 112 S.E. 869 (1922), cert. denied, 265 U.S. 583, 44 S. Ct. 458, 68 L. Ed. 1191 (1924). See also, Weatherford v. Birchett, 158 Va. 741 , 164 S.E. 535 (1932).

The gravamen of an action under this section is the insult to the feelings of the offended party, not the intention of the party using the words. Cook v. Patterson Drug Co., 185 Va. 516 , 39 S.E.2d 304 (1946).

In an action for insulting words the insult is the basis of the action and where such insults are given, the jury are to pass upon them regardless of whether the words spoken are true or false. Brooks v. Calloway, 39 Va. (12 Leigh) 466 (1841).

Action for libel and slander. - An action for insulting words under this section has been treated since the amendment of the original statute in 1849 entirely as an action for libel or slander, for words actionable per se, with two exceptions: "No demurrer shall preclude a jury from passing thereon," (eliminated by 1940 amendment) and no publication of the words is necessary. In all other respects an action under the statute is placed on all fours with an action for defamation at common law. In fact, from the standpoint of the Virginia law, the action for insulting words is an action for libel or slander. W.T. Grant Co. v. Owens, 149 Va. 906 , 141 S.E. 860 (1928).

All actions for libel and insulting words under this section are to be treated as slander, even though the language used is defamatory on its face, and the common-law rules of slander are to be applied. Shupe v. Rose's Stores, Inc., 213 Va. 374 , 192 S.E.2d 766 (1972).

An action under the insulting words statute is either an action for libel or slander and in an action for libel or slander the common-law rules of slander are to be applied. Shupe v. Rose's Stores, Inc., 213 Va. 374 , 192 S.E.2d 766 (1972).

As at common law. - The 1940 amendment to this section, eliminating the words "and no demurrer shall preclude a jury from passing thereon," gave the court the same power and control over actions brought under this section that it exercised over common-law actions for libel and slander. Darnell v. Davis, 190 Va. 701 , 58 S.E.2d 68 (1950).

Statute does not affect common-law remedy. - The legislature did not intend by passing the statute of insulting words to interfere with the common-law action for defamation and a party aggrieved may still proceed at common law as if the statute had never been passed. Brooks v. Calloway, 39 Va. (12 Leigh) 466 (1841); Moseley v. Moss, 47 Va. (6 Gratt.) 534 (1850); Hogan v. Wilmoth, 57 Va. (16 Gratt.) 80 (1860).

Publication is difference. - An action for insulting words under this section is treated precisely as an action for slander or libel, for words actionable per se, with one exception, namely, no publication is necessary. The trial of an action for insulting words is completely assimilated to the common-law action for libel or slander, and from the standpoint of the Virginia law it is an action for libel or slander. Carwile v. Richmond Newspapers, Inc., 196 Va. 1 , 82 S.E.2d 588 (1954); O'Neil v. Edmonds, 157 F. Supp. 649 (E.D. Va. 1958); Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614 (W.D. Va. 1967).

B. WORDS ACTIONABLE UNDER STATUTE.

1. IN GENERAL.

Words actionable at common law may be actionable under statute. - All common-law defamations are insults, and many of them something more. Actions for insulting words, spoken or written, may be brought under this section, though the words are actionable at common law. Payne v. Tancil, 98 Va. 262 , 35 S.E. 725 (1900).

This statute applies to words written as well as to words spoken. Chaffin v. Lynch, 83 Va. 106 , 1 S.E. 803 (1887).

At common law defamatory words which are actionable per se are: (1) Those which impute to a person the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished; (2) those which impute that a person is infected with some contagious disease, where if the charge is true, it would exclude the party from society; (3) those which impute to a person unfitness to perform the duties of an office or employment of profit, or want of integrity in the discharge of the duties of such an office or employment; (4) those which prejudice such person in his or her profession or trade. All other defamatory words which, though not in themselves actionable, occasion a person special damages are actionable. Shupe v. Rose's Stores, Inc., 213 Va. 374 , 192 S.E.2d 766 (1972).

Meaning of language cannot be extended beyond its ordinary and common acceptation. - While ordinarily the gravamen of the action is the insult to the feelings of the offended party, and not the intention of the party using the words, the nature of the words used must from their usual construction and common acceptation be construed as insults and tend to violence and breach of the peace. The meaning of the alleged defamatory language cannot, by innuendo, be extended beyond its ordinary and common acceptation. O'Neil v. Edmonds, 157 F. Supp. 649 (E.D. Va. 1958).

In determining whether or not the language imputes a criminal offense, the words must be construed in the plain and popular sense in which the rest of the world would naturally understand them. It is not necessary that they should make the charge in express terms. It is sufficient if they consist of a statement of matters which would naturally and presumably be understood by those who heard them as charging a crime. Zayre of Va., Inc. v. Gowdy, 207 Va. 47 , 147 S.E.2d 710 (1966).

Manner and occasion of speaking or writing words. - Insults by words spoken to or concerning another, depend so much upon the manner, the occasion, the allusions, and peculiar circumstances, as to defy all rules of technical precision and import, and must of necessity be regarded as questions of fact, to be submitted to the experience, observation and the common sense of a jury. Moseley v. Moss, 47 Va. (6 Gratt.) 534 (1850); Corr v. Lewis, 94 Va. 24 , 26 S.E. 385 (1896).

Whether the words are or are not insulting depends on the place, the manner and circumstances in which they are uttered. The literal meaning of the words may import praise; but, if spoken ironically and with intent to wound, they may amount to the keenest insult. It is equally true that the literal meaning of words may import insult, and yet the manner of their utterance, and the circumstances under which they are said, would satisfy anyone that no insult was intended. Brooks v. Calloway, 39 Va. (12 Leigh) 466 (1841); Corr v. Lewis, 94 Va. 24 , 26 S.E. 385 (1896).

In order to determine whether words are insulting, all the surrounding facts and circumstances must be taken into consideration, and the whole case must be looked at in the light of its own particular facts. Zayre of Va., Inc. v. Gowdy, 207 Va. 47 , 147 S.E.2d 710 (1966).

2. ILLUSTRATIONS.

Improper letter to married woman. - A letter written by a man to a married woman falsely asserting that the writer has received a letter from her and that he will meet her at the designated place is within the statute. Rolland v. Batchelder, 84 Va. 664 , 5 S.E. 695 (1888).

An accusation of robbery is actionable under the statute. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 (1925).

The publication of the false report of a person's death is not actionable when unaccompanied by special circumstances. O'Neil v. Edmonds, 157 F. Supp. 649 (E.D. Va. 1958).

A letter to plaintiff's employer, stating that plaintiff was in default in repayment of a loan and refused to answer correspondence or respond to personal calls, was not libelous per se, where the letter did not suggest dishonesty, insolvency or bankruptcy, and plaintiff was not a merchant or trader or engaged in a vocation where credit was necessary, and since no special damages were alleged or proved, the letter was not actionable. Weaver v. Beneficial Fin. Co., 200 Va. 572 , 106 S.E.2d 620 (1959).

Statement that police chief failed to account for fines not actionable. - To publish of the chief of police, who is chargeable with the collection from his subordinates of fines imposed by the police justice, that he has within the past twelve months collected certain fines of a certain officer, which fines do not appear by the records of the police court to have been reported, is not actionable under this section in the absence of an averment in the declaration that the words used from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace. Moss v. Harwood, 102 Va. 386 , 46 S.E. 385 (1904).

C. PUBLICATION.

Publication is not necessary. - Under this section against insulting words, publication is not necessary in order to entitle a plaintiff to recover for insulting words. Davis v. Heflin, 130 Va. 169 , 107 S.E. 673 (1921); Hines v. Gravins, 136 Va. 313 , 112 S.E. 869 (1922), cert. denied, 265 U.S. 583, 44 S. Ct. 458, 68 L. Ed. 1191 (1924).

Words only have to be conveyed to person libelled. - It is a sufficient publication under this section to send a writing containing the insulting words to the person libelled. Rolland v. Batchelder, 84 Va. 664 , 5 S.E. 695 (1888).

The mailing of a slanderous letter to a third party amounts to a publication, provided the letter reaches its destination and is read by the addressee, or any third party. Davis v. Heflin, 130 Va. 169 , 107 S.E. 673 (1921).

Place of publication and circulation is where cause of action arises. - It is not the place where the libelous article is printed, but the place where it is published and circulated, that makes the words actionable under this section. Haskell v. Bailey, 63 F. 873 (4th Cir. 1894).

Defendant, in Virginia, wrote a letter to a third party in Washington, D.C., containing defamatory statements about the plaintiff. Plaintiff questioned defendant in Virginia in regard to the letter and defendant substantially repeated and assumed responsibility for the contents of the letter when he admitted its authorship and said to defendant that the letter spoke for itself. The defendant was liable in Virginia under this statute as he reiterated the insulting words to plaintiff in Virginia. Davis v. Heflin, 130 Va. 169 , 107 S.E. 673 (1921).

D. PARTIES LIABLE.

A corporation, as any other master, is liable in damages under this section for insulting words uttered by its agent while engaged in the ordinary course of his employment, and in connection therewith. W.T. Grant Co. v. Owens, 149 Va. 906 , 141 S.E. 860 (1928); Jordan v. Melville Shoe Corp., 150 Va. 101 , 142 S.E. 387 (1928).

Director General of Railroads not liable. - Assuming, for the purposes of this case, that a principal is liable for compensatory damages under this section for insulting words uttered by his agent in the course of his employment, when such words are neither authorized nor ratified by the principal, there is a difference in this respect between the Director General of Railroads and other employers, and an action for compensatory damages in such case cannot be maintained against the Director General. Hines v. Gravins, 136 Va. 313 , 112 S.E. 869 (1922), cert. denied, 265 U.S. 583, 44 S. Ct. 458, 68 L. Ed. 1191 (1924).

Judges are not liable to civil action for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. Fletcher v. Bryan, 175 F.2d 716 (4th Cir. 1949).

E. MALICE.

Constitutional malice standard required. - The trial court committed reversible error when in a punitive damage instruction to the jury it incorporated the common-law definition of malice rather than the constitutional malice standard. Newspaper Publishing Corp. v. Burke, 216 Va. 800 , 224 S.E.2d 132 (1976).

Malicious libel enjoys no constitutional protection in any context. Old Dominion Branch 496 v. Austin, 213 Va. 377 , 192 S.E.2d 737 (1972), rev'd on other grounds, 418 U.S. 264, 94 S. Ct. 2770, 41 L. Ed. 2d 745 (1974).

Legal malice is presumed from the utterance of insulting words. It may be found in the negligence or recklessness of the defamer's acts. An injury to a defamed person may be as grievous whether or not his defamer had an honest belief in the truth of his words. Cook v. Patterson Drug Co., 185 Va. 516 , 39 S.E.2d 304 (1946).

In an action under the statute the law infers malice from the publication of matter which is insulting or defamatory. Chaffin v. Lynch, 83 Va. 106 , 1 S.E. 803 (1887).

The motive which actuated the person using the words is not material, except upon the questions of malice and the measure of damages. Cook v. Patterson Drug Co., 185 Va. 516 , 39 S.E.2d 304 (1946).

Actual malice is necessary in order to abuse a qualified privilege. Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614 (W.D. Va. 1967).

Actual malice is indispensable for punitive damages. - Under this section, malice, either express or implied, is essential to a recovery for slander or for insulting words, but actual or express malice need not be proved except as a basis for punitive damages. For the latter purpose it is indispensable. Windsor v. Carlton, 136 Va. 652 , 118 S.E. 222 (1923).

Statements and conduct of a defendant after the utterance of a slander are admissible to show malice. Kroger Grocery & Baking Co. v. Rosenbaum, 171 Va. 158 , 198 S.E. 461 (1938).

Burden of proof. - Ordinarily, the law implies malice from the use of words defamatory or insulting. But the presumption is the other way where the occasion of the publication is privileged, and the onus is then upon the plaintiff to prove malice in fact. Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614 (W.D. Va. 1967).

F. PRIVILEGED COMMUNICATIONS.

Privileged communication defined. - A privileged communication is one made in good faith upon any subject matter in which the party communicating has an interest or in reference to which he has, or honestly believes he has, a duty, to a person having a corresponding interest or duty, and which contains matter which, without the occasion upon which it is made, would be defamatory and actionable. Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614 (W.D. Va. 1967).

Where the defendant acts in performance of a duty, legal or social, or in defense of his own interest, the occasion is privileged. Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614 (W.D. Va. 1967).

Privilege is a bar to the action unless the plaintiff proves by a preponderance of the evidence an abuse of the privilege. Guide Publishing Co. v. Futrell, 175 Va. 77 , 7 S.E.2d 133 (1940); Massey v. Jones, 182 Va. 200 , 28 S.E.2d 623 (1944).

Where public interest in free expression and communication of ideas is sufficient to outweigh the interest of the State in protecting the individual plaintiff from damage to his reputation and social relationships, the law does not allow recovery of damages, compensatory or punitive, occasioned by defamatory speech or publication, unless there has been an abuse of the privilege by showing that the defamatory language, either written or spoken, was made with actual malice. Old Dominion Branch 496 v. Austin, 213 Va. 377 , 192 S.E.2d 737 (1972), rev'd on other grounds, 418 U.S. 264, 94 S. Ct. 2770, 41 L. Ed. 2d 745 (1974).

Must be made in good faith to be privileged. - Where the occasion of the publication declared on was privileged, the jury should have been instructed to find whether it was used in good faith by the defendant. Chaffin v. Lynch, 83 Va. 106 , 1 S.E. 803 (1887).

Circumstances of publication may confer privilege. - A libelous statement, otherwise actionable, may not be so for the reason that the circumstances under which it was published confer upon the publisher a privilege to publish it. Old Dominion Branch 496 v. Austin, 213 Va. 377 , 192 S.E.2d 737 (1972), rev'd on other grounds, 418 U.S. 264, 94 S. Ct. 2770, 41 L. Ed. 2d 745 (1974).

Privileged when communication to person having a corresponding interest or duty. - A communication, made in good faith on a subject matter in which the person communicating has an interest, or owes a duty, legal, moral or social, is qualifiedly privileged if made to a person having a corresponding interest or duty. Taylor v. Grace, 166 Va. 138 , 184 S.E. 211 (1936).

Qualified privilege. - The rule is well settled that when the communication upon which the action is based is one of qualified privilege, the question is not whether the charge was true or false, but only whether the privilege was abused or the language employed was uttered or published with malice, and unless there is evidence from which a jury may fairly conclude there was malice, there can be no recovery. Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614 (W.D. Va. 1967).

When the words complained of are uttered upon an occasion of qualified privilege, then in order to recover, it must appear from the evidence that the language used was disproportioned in strength and violence to the occasion, or went beyond the exigency of the occasion, or that the occasion was abused to gratify the ill will of the defendant; in other words, that the defendant was acting from actual malice. Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614 (W.D. Va. 1967).

One insult cannot be set off against another. Yet if a man is attacked by another in a newspaper, he may reply. If his reply is not unnecessarily defamatory of his assailant, and is honestly made in self-defense, it will be privileged. Chaffin v. Lynch, 83 Va. 106 , 1 S.E. 803 (1887); Haycox v. Dunn, 200 Va. 212 , 104 S.E.2d 800 (1958).

Criticism of public official. - When a person is in a public capacity he may be criticized by the newspapers in the public interest; and that rebuts the presumption of malice in law which the court might otherwise make, and leaves malice in fact to be proved, and malice in fact to be found, either in the special language of the article or in circumstances proved which point to some motive of enmity to the particular individual. Story v. Norfolk-Portsmouth Newspapers, Inc., 202 Va. 588 , 118 S.E.2d 668 (1961).

Language uttered in judicial proceeding is privileged. - See Massey v. Jones, 182 Va. 200 , 28 S.E.2d 623 (1944).

But the privilege of a party or counsel in judicial proceedings is limited. - A party or counsel shall not avail himself of his situation to gratify private malice by uttering slanderous expressions, either against a party, witness or third person, which have no relation to the cause or subject matter of the inquiry. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 (1925).

When order dismissing employee is privileged. - A statement by a corporation in an order dismissing an employee that he was dismissed because of untrue statement made by him concerning reflection cast by one officer of the company, where there was no evidence of malice on the part of the company or its agents, was held to be a privileged communication and was not actionable. Brown v. Norfolk & W. Ry., 100 Va. 619 , 42 S.E. 664 (1902).

A State Police officer is not afforded an absolute privilege for words spoken in a departmental hearing before the superintendent of State Police. Elder v. Holland, 208 Va. 15 , 155 S.E.2d 369 (1967) commented on in 3 U. Rich. L. Rev. 202 (1968).

A State Police officer is not immune from liability for defamatory words spoken while performing his duties. Elder v. Holland, 208 Va. 15 , 155 S.E.2d 369 (1967) commented on in 3 U. Rich. L. Rev. 202 (1968).

Illustration of conditional privilege. - For illustration of occasion held to be one of conditional privilege, see Luhring v. Carter, 193 Va. 529 , 69 S.E.2d 416 (1952).

G. JUSTIFICATION.

In Virginia both the truth and privilege are complete defenses in bar of any action for defamation, whether it be for common-law slander or libel, or for insulting words. The same rules of law with reference to the pleading and proof of these defenses apply in an action under this section as in an action for common-law slander or libel since the enactment of § 8.01-46 . Rosenberg v. Mason, 157 Va. 215 , 160 S.E. 190 (1931). See Guide Publishing Co. v. Futrell, 175 Va. 77 , 7 S.E.2d 133 (1940); Massey v. Jones, 182 Va. 200 , 28 S.E.2d 623 (1944).

H. DAMAGES.

Punitive damages may be awarded without actual or compensatory damages if a plaintiff shows per se defamation by the media and meets by clear and convincing evidence the standard of actual malice. Newspaper Publishing Corp. v. Burke, 216 Va. 800 , 224 S.E.2d 132 (1976).

In actions under this section, damages are presumed from proof of the utterance of insulting words made actionable by the statute, and in order to recover it is not necessary to prove actual or pecuniary loss. Weatherford v. Birchett, 158 Va. 741 , 164 S.E. 535 (1932).

The law presumes that damages result from the utterance of insulting words, made actionable by the statute, just as it does where the words uttered are actionable per se. It is not necessary in either case in order to recover, to prove actual or pecuniary loss. Boyd v. Boyd, 116 Va. 326 , 82 S.E. 110 (1914); W.T. Grant Co. v. Owens, 149 Va. 906 , 141 S.E. 860 (1928). See also, Jordan v. Melville Shoe Corp., 150 Va. 101 , 142 S.E. 387 (1928).

No rule for measure of damages. - In an action, under this section, there is no rule of law fixing the measure of damages, nor can it be reached by any process of computation. Boyd v. Boyd, 116 Va. 326 , 82 S.E. 110 (1914).

The amount of the damages is to be measured by the prejudice sustained by the plaintiff. Moseley v. Moss, 47 Va. (6 Gratt.) 534 (1850).

There is no fixed standard for measuring exemplary or punitive damages, and the amount of the award is largely a matter of discretion with the jury. Old Dominion Branch 496 v. Austin, 213 Va. 377 , 192 S.E.2d 737 (1972), rev'd on other grounds, 418 U.S. 264, 94 S. Ct. 2770, 41 L. Ed. 2d 745 (1974).

Written communication to justice of peace under former § 19.1-18. - Where a person is charged with criminal trespass, arrested, and let to bail, and the injured private individual causing the arrest asserts in a written communication to a justice of the peace under former § 19.1-18 that he has received satisfaction for the injury, such written communication is one made in a judicial proceeding and is relevant to the matter under inquiry, and no recovery upon such writing can be had under this section. Darnell v. Davis, 190 Va. 701 , 58 S.E.2d 68 (1950).

If express malice on the part of the defendant is shown, exemplary damages are presumed and need not be proved. It is not improper to instruct the jury that if from the evidence they believe defendant uttered the slander from malice, they may find exemplary damages. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 (1925).

When corporation liable for punitive damages. - In such case the person who has suffered injury may recover compensatory damages from the corporation as principal, and may recover punitive damages if the principal has authorized the act or has subsequently ratified it. Jordan v. Melville Shoe Corp., 150 Va. 101 , 142 S.E. 387 (1928).

Actual damages must be proved for judgment against principal on unauthorized insult of agent. - In an action for insulting words against the Director General of Railroads, no actual damages were proved, and the only damages which could be recovered were punitive damages, and this only because of this section. It was held that plaintiff had failed in his proof to show that he was entitled to any damages, as punitive damages could not be recovered against the Director General. Hines v. Gravins, 136 Va. 313 , 112 S.E. 869 (1922), cert. denied, 265 U.S. 583, 44 S. Ct. 458, 68 L. Ed. 2d 1191 (1924).

Authorization or ratification by principal necessary to sustain punitive damages against him. - In an action for damages for insulting words under this section against the Director General of Railroads, there being no evidence that the federal agent or the Director General ever at any time authorized, ratified, or approved the offensive charge made by a carrier's agent, instructions authorizing the recovery of punitive damages were erroneous. Hines v. Gravins, 136 Va. 313 , 112 S.E. 869 (1922), cert. denied, 265 U.S. 583, 44 S. Ct. 458, 68 L. Ed. 2d 1191 (1924).

In an action for insulting words, defendant corporation was liable for compensatory damages for the utterance of insulting words by its agent, in the course of his employment in the business of the corporation, but not for punitive damages, because the corporation neither authorized the use of such words nor had it since ratified their use. The trial court, therefore, was right in setting aside the verdict as the damages awarded, or part thereof, were clearly punitive, but it erred in entering judgment for the defendant corporation. It should have awarded a new trial on the question of the amount of compensatory damages. Jordan v. Melville Shoe Corp., 150 Va. 101 , 142 S.E. 387 (1928).

Effect of bad reputation of plaintiff. - While there is no rule fixing the quantum of compensation for insult, mental suffering, and injury to the reputation of the plaintiff or for punishment of the offender, one of unblemished reputation is entitled to greater damages than one whose reputation is such that he is little hurt from the action of which complaint is made. The effect of bad reputation is to reduce the damage inflicted. Stubbs v. Cowden, 179 Va. 190 , 18 S.E.2d 275 (1942).

Effect of motive of defendant. - The motive which actuated the person using the words is not material, except upon the questions of malice and the measure of damages. Cook v. Patterson Drug Co., 185 Va. 516 , 39 S.E.2d 304 (1946).

Questions for jury. - In cases under this section, the jury is regarded as the best and safest tribunal to determine not only the character of the alleged insulting words, but also the measure of damages. Its verdict will not be set aside in this State, unless it is so grossly excessive, or inadequate, as to indicate that the jury, in rendering it were actuated by prejudice, or corruption, or that they were misled by some mistaken view of the case. Boyd v. Boyd, 116 Va. 326 , 82 S.E. 110 (1914); Weatherford v. Birchett, 158 Va. 741 , 164 S.E. 535 (1932); Kroger Grocery & Baking Co. v. Rosenbaum, 171 Va. 158 , 198 S.E. 461 (1938).

The determination of the amount of damages in an action under this section is primarily the province of the jury under proper instructions of the court, and the courts are generally reluctant to interfere with their verdict. Nevertheless, each case must be considered on its own facts and circumstances, and whether the award is inadequate or excessive is a legal question addressed to the sound discretion of the court in the exercise of its supervisory power over verdicts to prevent a miscarriage of justice. Stubbs v. Cowden, 179 Va. 190 , 18 S.E.2d 275 (1942).

Instruction as to mitigation. - In a proceeding for damages under the statute, instructing jury that if plaintiff was entitled to recover anything, then in assessing damages they could take into consideration her improper relations with the husband of defendant, if proven in the case, in mitigation of damages, was not error. Stubbs v. Cowden, 179 Va. 190 , 18 S.E.2d 275 (1942).

I. EVIDENCE.

Proof of insulting words. - In an action under the statute, the plaintiff makes out a prima facie case simply by proving the insulting words whether written or spoken as laid in the motion. Chaffin v. Lynch, 83 Va. 106 , 1 S.E. 803 (1887).

Proof of truth and privilege as defense. - The truth and privilege are complete defenses, and the same rules of law with reference to the proof of these defenses apply in an action under this section as in an action for common-law slander or libel. Massey v. Jones, 182 Va. 200 , 28 S.E.2d 623 (1944).

Burden on plaintiff of proving circumstances and meaning of words. - In an action under this section plaintiff, treasurer of a quasi-religious organization, contended that defendant, founder and head of the organization, by the use of certain language to the congregation, meant that plaintiff had made a false report of the financial affairs of the organization entrusted to him and had misapplied money. It was held that a literal meaning of the words used did not import misapplication of funds and, this being true, it was encumbent on plaintiff to prove that the manner and circumstances in which the words were uttered conveyed the meaning placed upon them by him. Taylor v. Grace, 166 Va. 138 , 184 S.E. 211 (1936).

Where the occasion is one of qualified privilege the burden is cast upon plaintiff to prove malice in fact. In such cases proof might be accomplished by the language itself if it is capable of affording evidence of express malice, or by extrinsic evidence. Story v. Norfolk-Portsmouth Newspapers, Inc., 202 Va. 588 , 118 S.E.2d 668 (1961).

Evidence of malice. - In an action for libel the court did not err in permitting a witness to testify that plaintiff gave her, as a representative of a newspaper, a writing to be inserted conditionally as an advertisement which reflected on defendant's honor, and indicated that he had not been straight in his accounts while in defendant's employ. This evidence was admissible to show malice. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 (1925).

In an action for libel it was not error for the court to permit a witness to testify to a conversation which he overheard between defendant and a third party in which defendant said plaintiff was "one of the grandest rascals that ever was and if he wanted a man to do the darkest, dirtiest deed he would recommend" plaintiff. The court instructed the jury to consider this evidence for the purpose of ascertaining the state of mind of the defendant. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 (1925).

Where the jury found in favor of the alleged utterer of defamatory statements and where the editor failed and neglected to recheck the facts after plaintiff told him the statements were untrue, there was evidence from which the jury could find that the defamatory publication complained of was made with constitutional malice. Newspaper Publishing Corp. v. Burke, 216 Va. 800 , 224 S.E.2d 132 (1976).

Inference of malice from use of violent and disproportionate language. - The inference of actual malice which may arise from the use of violent and disproportionate language is evidentiary and rebuttable. Story v. Norfolk-Portsmouth Newspapers, Inc., 202 Va. 588 , 118 S.E.2d 668 (1961).

Evidence of falsity of statements. - In an action for libel it was not error to permit plaintiff to testify that certain statements alleged to have been made in a letter sent by defendant's corporation to another corporation were false. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 (1925).

Evidence of character of plaintiff in mitigation of damages. - In an action on the statute as well as at common law the general bad character of the plaintiff is admissible in mitigation of damages. Moseley v. Moss, 47 Va. (6 Gratt.) 534 (1850).

The man of unblemished reputation is entitled to greater damage than is one whose reputation is already so bad as to receive little or no detriment from the action of which complaint is made. The purpose of admitting evidence of bad reputation is to diminish the damage, not to bar the action. Injury to the reputation is not the only element for which compensatory damages are allowed, but the pain, the mortification, the insult is usually in proportion to a person's good or bad reputation. Weatherford v. Birchett, 158 Va. 741 , 164 S.E. 535 (1932).

Newspaper articles admissible. - In an action under this section for procuring the publication of libelous words in newspaper articles, such articles are admissible in evidence after the use of the actionable words has been established, not only on the question of damages, but in connection with the use of the words sued on as tending to show that the language was employed by defendant prior to the publication. Haskell v. Bailey, 63 F. 873 (4th Cir. 1894).

Oral statement prior to publication. - A verdict that defendant caused the publication of libelous articles under this section will be sustained when it appears from his testimony as a witness for plaintiff that he used the words set out in the declaration in a conversation with one of the editors of the paper prior to their publication. Haskell v. Bailey, 63 F. 873 (4th Cir. 1894).

And like words spoken on another occasion. - When the words laid in the declaration have been proved, and not before, proof of the speaking of like words as those laid, either before or after they were spoken, is admissible to affect the measure of damages. Hansbrough v. Stinnett, 66 Va. (25 Gratt.) 495 (1874).

As tending to show malice, it is always competent for the plaintiff to prove that the defendant has repeated the slander charged, or has used the same, or similar words, upon other occasions. And where statements other than the one upon which the action is based tend to show actual malice in the utterance of the slander sued on, such statements may also be shown in evidence. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 (1925).

Other slanderous words, spoken or written of plaintiff, whether before or after those laid in the declaration, may be given in evidence, to show malice on the part of the defendant when that is an issue in the case. Kroger Grocery & Baking Co. v. Rosenbaum, 171 Va. 158 , 198 S.E. 461 (1938).

Admission of general manager of corporation weeks after publication not admissible. - In an action under the statute, admissions by the general manager of the defendant corporation made weeks after the publication of the alleged libel are not a part of the res gestae and cannot be introduced as evidence for the plaintiff. M. Reusch v. Roanoke Cold Storage Co., 91 Va. 534 , 22 S.E. 358 (1895), overruled on other point Rosenberg & Sons v. Craft, 182 Va. 512 , 29 S.E.2d 375 (1944).

Character of witnesses no evidence as to damages. - In an action for defamation, where the speaking of the insulting words is admitted, the character of the witnesses who testified only as to the language used and the circumstances attending its utterance, and not as to the damages sustained, is of no value in determining the damages sustained. Boyd v. Boyd, 116 Va. 326 , 82 S.E. 110 (1914).

When repetition may be shown in evidence against original slanderer. - When a repetition is authorized and is the direct and natural result of the original slander, it may be shown in evidence against the original defamer, and this is especially true where it was intended and contemplated that the slander be repeated. Luhring v. Carter, 193 Va. 529 , 69 S.E.2d 416 (1952).

Evidence held insufficient to sustain verdict for plaintiff under count for insulting words. M. Rosenberg & Sons v. Craft, 182 Va. 512 , 29 S.E.2d 375 (1944).

J. PLEADING AND PRACTICE.

1. IN GENERAL.

Election of remedies. - A person aggrieved by the insulting words of another may elect whether he will proceed as at common law or under the statute. Moseley v. Moss, 47 Va. (6 Gratt.) 534 (1850); Hogan v. Wilmoth, 57 Va. (16 Gratt.) 80 (1860); Chaffin v. Lynch, 83 Va. 106 , 1 S.E. 803 (1887); Payne v. Tancil, 98 Va. 262 , 35 S.E. 725 (1900); Sun Life Assurance Co. of Can. v. Bailey, 101 Va. 443 , 44 S.E. 692 (1903).

A person aggrieved by the insulting words of another must declare either for a common-law slander or for insulting words under the statute; he cannot declare for both unless he does so separately in distinct counts of the declaration. Moseley v. Moss, 47 Va. (6 Gratt.) 534 (1850); Bourland v. Eidson, 49 Va. (8 Gratt.) 27 (1851); Hogan v. Wilmoth, 57 Va. (16 Gratt.) 80 (1860); Chaffin v. Lynch, 83 Va. 106 , 1 S.E. 803 (1887).

Jurisdiction and venue. - Words actionable at common law may be sued on in a common-law action in any jurisdiction where the defendant may be found. But where the action rests upon a statute and the words were spoken or published exclusively in a state other than that in which the action was brought, the plaintiff must prove as a fact that a like statute was in force in such other state. Davis v. Heflin, 130 Va. 169 , 107 S.E. 673 (1921). See also, Haskell v. Bailey, 63 F. 873 (4th Cir. 1894).

Effect of elimination of provision as to demurrer. - The 1940 amendment of this section which eliminated the sentence that no demurrer shall preclude a jury from passing thereon, revealed that it was the intent of the legislature that the court should exercise the same power and authority over actions for insulting words that it exercises over actions of libel and slander. M. Rosenberg & Sons v. Craft, 182 Va. 512 , 29 S.E.2d 375 (1944).

Bill of particulars held not to state new cause of action. - Bill of particulars filed in action for slander more than one year after the alleged tort did not state a new and distinct cause of action against the defendants which would be barred by the statutes of limitations and was not an amendment to the original notice of motion where the bill of particulars only particularized, specified, and pointed out the intended and accomplished result of the original statements and the damages directly caused thereby. Luhring v. Carter, 193 Va. 529 , 69 S.E.2d 416 (1952).

2. MOTION.

What must be stated in motion. - In an action of slander, if the plaintiff proceeds under the statute, he must in his motion aver that the words from their usual construction and common acceptation are construed as insults, and tend to violence and breach of the peace, or else employ some other equivalent averment to denote that the words are actionable under the statute. Hogan v. Wilmoth, 57 Va. (16 Gratt.) 80 (1860).

A motion alleged in each count that the words used are, "from their usual construction and common acceptance, construed as insults, and tend to violence and breach of the peace." Such are the terms of the statute, which makes the motion one under the statute, though the words used are objectionable at common law. Haskell v. Bailey, 63 F. 873 (4th Cir. 1894).

If plaintiff does not move under the statute, his motion must set out a common-law slander, and if the words charged do not amount to slander they cannot be helped by the innuendo. Moseley v. Moss, 47 Va. (6 Gratt.) 534 (1850).

Where the motion does not show by the proper averments that the action is under the statute, it may be demurred to as defective, unless it sets out properly, and in substantial compliance with the rules of pleading, such a charge as constitutes defamation at the common law. Hogan v. Wilmoth, 57 Va. (16 Gratt.) 80 (1860).

3. PLEAS.

Pleading the truth and privilege. - The same rules of law with reference to pleading the defenses of the truth and privilege apply in an action under this section as in an action at law for common-law slander or libel. Massey v. Jones, 182 Va. 200 , 28 S.E.2d 623 (1944).

When plea of special damages required. - Where alleged defamatory language was not actionable per se, and there were no allegations or proof of special damages, the trial court did not err in striking out plaintiff's evidence and dismissing the action. Shupe v. Rose's Stores, Inc., 213 Va. 374 , 192 S.E.2d 766 (1972).

Plea of bankruptcy of plaintiff. - In an action of slander, a plea that since the commencement of the action the plaintiff has been adjudicated a bankrupt, is not a good plea. Dillard v. Collins, 66 Va. (25 Gratt.) 343 (1874).

4. INSTRUCTIONS.

Instruction as to malice. - In an action for libel an instruction that if from the evidence the jury believe that the charges contained in the letter were untrue, and if they further believe from the evidence that the defendant has reiterated the charges therein, this is a circumstance tending to show malice on the part of the defendant, was not erroneous. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 (1925).

Instruction as to privilege. - In an action under this section, instruction that if a newspaper's account of a court proceeding was a fair, impartial and substantially accurate report the privilege of the newspaper to publish it was a complete defense, was fair to the plaintiff and correctly stated the law. Vaughan v. News Leader Co., 105 F.2d 360 (4th Cir. 1939).

Privilege and abuse thereof. - Where allegedly libelous publications were made in response to attacks on certain of defendants made by plaintiff in his newspaper, the court was held to have instructed correctly that the occasion was privileged, but the instructions were held faulty in that they did not sufficiently define for the jury what constitutes an abuse of privilege. Haycox v. Dunn, 200 Va. 212 , 104 S.E.2d 800 (1958).

Instructions as to truth of statements. - In an action for libel defendant requested the court to instruct the jury that if they believe from the evidence that the alleged libelous statements contained in the letter from defendant were substantially true, they must find for the defendant. The court refused to give this instruction as offered, but amended the same by inserting after the words "substantially true" the words "in the ordinary and usually accepted meaning thereof." Vaughan v. Lytton, 126 Va. 671 , 101 S.E. 865 (1920).

Instructions as to damages. - Where the court had properly instructed the jury as to the rights of plaintiff to recover exemplary damages, it was not error for the court to modify an instruction for defendant limiting the plaintiff to actual damages by adding: "But this instruction must be considered in connection with instructions" in regard to exemplary damages. Lightner v. Osborn, 142 Va. 19 , 127 S.E. 314 (1925).

Instruction as to burden of proof. - In an action under this section, an instruction that the burden was upon each plaintiff to prove by a preponderance of the evidence that the defendant circulated defamatory statements with actual malice correctly stated the law. Old Dominion Branch 496 v. Austin, 213 Va. 377 , 192 S.E.2d 737 (1972), rev'd on other grounds, 418 U.S. 264, 94 S. Ct. 2770, 41 L. Ed. 2d 745 (1974).

Instruction held erroneous. - Where the publication complained of depicted the plaintiff as the "operator" of a club which was being run illegally, it was error to instruct the jury to find for defendant if they found plaintiff owned the club and consented to its illegal operation. Saleeby v. Free Press, Inc., 197 Va. 761 , 91 S.E.2d 405 (1956).

5. PROVINCE OF COURT AND JURY.

It is the duty of the court to define what constitutes insulting words, and it is for the jury to say whether the particular words come within the definition. Cook v. Patterson Drug Co., 185 Va. 516 , 39 S.E.2d 304 (1946).

It is for the jury to determine whether or not the words were insulting. Moseley v. Moss, 47 Va. (6 Gratt.) 534 (1850).

In an action under this section whether or not the words used are insulting is a jury question, depending on whether from "their usual construction and common acceptation" they may be "construed as insults, and tend to violence and breach of the peace." Cook v. Patterson Drug Co., 185 Va. 516 , 39 S.E.2d 304 (1946).

When question of law or of fact. - To justify publication of defamatory matter, the occasion must be privileged, and must be used bona fide, without malice. Whether the occasion be privileged, is a question of law for the court. Whether it has been used bona fide, is a question of fact for the jury. Chaffin v. Lynch, 83 Va. 106 , 1 S.E. 803 (1887).

Determination of whether or not the occasion is one of qualified privilege is ordinarily a matter to be decided by the court. Yet if the evidence upon which the asserted privilege is based is in substantial conflict, whether or not the occasion is one of privilege becomes a mixed question of law and fact to be determined by the jury under appropriate instructions from the court. Luhring v. Carter, 193 Va. 529 , 69 S.E.2d 416 (1952).

Though the occasion be qualifiedly privileged, if the language used be clearly disproportionate, extraneous and impertinent to the occasion and subject at hand, and thus beyond the scope and protection of the privilege, then there is no factual issue on the abuse of privilege to submit to the jury. Luhring v. Carter, 193 Va. 529 , 69 S.E.2d 416 (1952).

The question of privilege was one for the court, and the question of the use which the defendants made of their privilege, that is, whether they acted maliciously or not, was a question for the jury to decide. Haycox v. Dunn, 200 Va. 212 , 104 S.E.2d 800 (1958).

The existence of a privileged (either absolute or qualified) occasion is a question of law to be decided by the court. Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614 (W.D. Va. 1967).

It is for the jury to determine what damage was occasioned to the plaintiff by the insulting words. Moseley v. Moss, 47 Va. (6 Gratt.) 534 (1850).

In action under this section, the question whether a published report of a court proceeding was a "fair, impartial and accurate report" was one for the jury. Whether the plaintiff suffered any damages from an inaccurate report was also a question for the jury. Vaughan v. News Leader Co., 105 F.2d 360 (4th Cir. 1939).

Malice is question for jury. - Notwithstanding that the occasion was privileged, there was evidence upon which the jury might properly have found that the privilege was abused. The language itself, italicized by the defendant, taken in connection with the previous correspondence and dispute between the parties, would warrant the court in upholding the action of the jury upon the question of malice. Vaughan v. Lytton, 126 Va. 671 , 101 S.E. 865 (1920).

The words used, under the circumstances recited, were sufficient to submit to the jury the question whether or not defendants were actuated by actual malice. Haycox v. Dunn, 200 Va. 212 , 104 S.E.2d 800 (1958).

Ordinarily, the question of whether the defendant acted with malice is a question of fact to be presented to the jury. But where the communication is privileged, unless there is evidence from which a jury may fairly conclude that there was malice, there can be no recovery. Marsh v. Commercial & Sav. Bank, 265 F. Supp. 614 (W.D. Va. 1967).

Setting aside verdict. - While as a general rule the jury is regarded as the best and safest tribunal to determine whether the words are or are not actionable, the court has inherent power to set aside the verdict, "in order to correct any manifest departure from right and justice." Guide Publishing Co. v. Futrell, 175 Va. 77 , 7 S.E.2d 133 (1940).

In an action under the statute the court would have the power to correct any manifest departure from right and justice on the part of the jury. Corr v. Lewis, 94 Va. 24 , 26 S.E. 385 (1896).

CIRCUIT COURT OPINIONS

Actionable words. - Defendant's statement at public meeting that the plaintiff, who was married, was "shacking up with a blond from Hillsboro" was actionable per se as that statement meant the plaintiff was sleeping with or living together with the blond as unmarried sexual partners, which was an adulterous relationship. The jury was to decide if the statement was meant to describe actual facts. Kelly v. Grigsby, 67 Va. Cir. 153, 2005 Va. Cir. LEXIS 172 (Loudoun County Mar. 8, 2005).

Curse words not actionable. - Curse words and gutter language used during the course of an altercation could not be understood to convey a false representation of fact. The words used, although uncivilized and offensive, did not rise to the level necessary to sustain a cause of action for defamation and similarly a claim under the Insulting Words Statute. Walker v. Harrison, 75 Va. Cir. 319, 2008 Va. Cir. LEXIS 249 (Salem July 7, 2008).

Words did not tend to produce violent reaction. - Alleged son failed to present facts necessary to support a claim for insulting words under § 8.01-45 because the words an alleged father used did not meet the standard of tending to cause violence or a breach of the peace since they were not uttered in a face to face confrontation or manner likely to present a clear and immediate danger of the same; for § 8.01-45 to be actionable the words must be conveyed face to face or in such manner as to incite an immediate breach of the peace. Hotung v. Hotung, 85 Va. Cir. 241, 2012 Va. Cir. LEXIS 71 (Fairfax County Aug. 22, 2012).

False representation of fact. - Words at issue in a case must convey a false representation of fact to be actionable under the Insulting Words Statute. Walker v. Harrison, 75 Va. Cir. 319, 2008 Va. Cir. LEXIS 249 (Salem July 7, 2008).

Jury's function. - While a statement was actionable per se, it was for the jury to determine whether, under the circumstances of the case, the phrase was reasonably understood by listeners to describe an actual fact. To make that decision, the jurors were to take into consideration the entire background of the case and the context in which the statements were made. Kelly v. Grigsby, 67 Va. Cir. 153, 2005 Va. Cir. LEXIS 172 (Loudoun County Mar. 8, 2005).

Comments on work performance when an employer discussed the character of its employee with its employee's potential employers, the employer was protected by the qualified privilege if such a conversation was made in good faith and if the statements were not made with malice, and plaintiff failed to show malice on the part of defendant in making the statements in question. Sarno v. Clanton, 59 Va. Cir. 384, 2002 Va. Cir. LEXIS 371 (Norfolk Aug. 22, 2002).

Statements relating to job performance. - Statements imputing unfitness to perform the offices or duties of employment or lack of integrity in the discharge of those duties were such as may have provoked reasonable persons to breaches of the peace, since they were made after plaintiffs had been cleared of wrongdoing. Jennings v. Jones, 70 Va. Cir. 56, 2005 Va. Cir. LEXIS 294 (Petersburg 2005).

Statements insufficient to make out cause of action. - Father's demurrer to an attorney's complaint alleging that statements the father made in a letter tended toward violence or breach of the peace pursuant to § 8.01-45 was sustained because the father's statements were not sufficient to make out a cause of action under § 8.01-45 since they did not tend to violence and breach of the peace; no amendment to the complaint would cure the deficiency. Donner v. Rubin, 77 Va. Cir. 309, 2008 Va. Cir. LEXIS 238 (Chesapeake 2008).

Alleged father's motion to strike the insulting words count of an alleged son's complaint was granted because the son used the identical publication to support both the defamation and insulting words counts; absent the clear and present tendency to incite violence, insulting words count was entirely subsumed by defamation, and there was but one cause of action that could be predicated upon the set of facts, and the cause of action was defamation. Hotung v. Hotung, 85 Va. Cir. 241, 2012 Va. Cir. LEXIS 71 (Fairfax County Aug. 22, 2012).

Demurrer sustained for failure to state a cause of action. - Demurrers filed by a former employer and former supervisors were sustained and a former employee's cause of action for insulting words was dismissed because the statements the supervisors made, in which they allegedly used abusive language in calling the employee stupid, were relative in nature and depended largely upon the speaker's viewpoint; therefore, the employee failed to state facts that supported a cause of action for defamation based upon the statements. Jarrett v. Goldman, 67 Va. Cir. 361, 2005 Va. Cir. LEXIS 49 (Portsmouth 2005).

§ 8.01-46. Justification and mitigation of damages.

In any action for defamation, the defendant may justify by alleging and proving that the words spoken or written were true, and, after notice in writing of his intention to do so, given to the plaintiff at the time of, or for, pleading to such action, may give in evidence, in mitigation of damages, that he made or offered an apology to the plaintiff for such defamation before the commencement of the action, or as soon afterwards as he had an opportunity of doing so in case the action shall have been commenced before there was an opportunity of making or offering such apology.

(Code 1950, § 8-631; 1977, c. 617.)

Law review. - For survey of Virginia tort law for the year 1975-1976, see 62 Va. L. Rev. 1489 (1976).

Michie's Jurisprudence. - For related discussion, see 12A M.J. Libel and Slander, § 24.

CASE NOTES

It is not necessary to prove the literal truth of statements made. Alexandria Gazette Corp. v. West, 198 Va. 154 , 93 S.E.2d 274 (1956) (decided under prior law).

And slight inaccuracies of expression are immaterial, provided the defamatory charge is true in substance, and it is sufficient to show that the imputation is "substantially" true. Saleeby v. Free Press, Inc., 197 Va. 761 , 91 S.E.2d 405 (1956); Alexandria Gazette Corp. v. West, 198 Va. 154 , 93 S.E.2d 274 (1956) (decided under prior law).

As a matter of state law the negligence standard should be applicable to media and nonmedia defendants alike. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

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).

An apology under this section goes only to mitigate damages, and if the plaintiff agrees to accept it in complete satisfaction it is an agreement without consideration. James v. Powell, 154 Va. 96 , 152 S.E. 539 (1930) (decided under prior law).

An apology published after an action for libel has been instituted would be of no avail. James v. Powell, 154 Va. 96 , 152 S.E. 539 (1930) (decided under prior law).

§ 8.01-46.1. Disclosure of employment-related information; presumptions; causes of action; definitions.

Any employer who, upon request by a person's prospective or current employer, furnishes information about that person's professional conduct, reasons for separation or job performance, including, but not limited to, information contained in any written performance evaluations, shall be immune from civil liability for furnishing such information, provided that the employer is not acting in bad faith. An employer shall be presumed to be acting in good faith. The presumption of good faith shall be rebutted if it is shown by clear and convincing evidence that the employer disclosed such information with knowledge that it was false, or with reckless disregard for whether it is false or not, or with the intent to deliberately mislead.
In a civil action brought against an employer for disclosing the information described in subsection A, if the trier of fact determines the employer acted in bad faith, punitive damages may be awarded, as provided by § 8.01-38.1 .
As used in this section, the following words and phrases shall have the following meanings:
"Employee" means any person, paid or unpaid, in the service of an employer.

"Employer" means any person, firm or corporation, including the Commonwealth of Virginia and its political subdivisions, and their agents, who has one or more employees or individuals performing services under any contract of hire or service, express or implied, oral or written.

"Information" includes, but is not limited to, facts, data and opinions.

"Job performance" includes, but is not limited to, ability, attendance, awards, demotions, duties, effort, evaluations, knowledge, skills, promotions, productivity and disciplinary actions.

"Professional conduct" includes, but is not limited to, the ethical standards which govern the employee's profession, or lawful conduct which is expected of the employee by the employer.

"Prospective employer" means any employer who is considering a person for employment.

(2000, c. 1005.)

Editor's note. - Acts 2000, c. 1005, cl. 2 provides that the provisions of the act shall apply to any cause of action occurring on or after July 1, 2000.

Law review. - For 2000 survey of Virginia labor and employment law, see 34 U. Rich. L. Rev. 907 (2000).

CIRCUIT COURT OPINIONS

Entitlement to qualified privilege. - When an employer discussed the character of its employee with its employee's potential employers, the employer was protected by the qualified privilege if such a conversation was made in good faith and if the statements were not made with malice, and plaintiff failed to show malice on the part of defendant in making the statements in question. Sarno v. Clanton, 59 Va. Cir. 384, 2002 Va. Cir. LEXIS 371 (Norfolk Aug. 22, 2002).

§ 8.01-47. Immunity of persons investigating or reporting certain incidents at schools.

In addition to any other immunity he may have, any person who, in good faith with reasonable cause and without malice, acts to report, investigate or cause any investigation to be made into the activities of any student or students or any other person or persons as they relate to conduct involving bomb threats, firebombs, explosive materials or other similar devices as described in clauses (vi) and (vii) of subsection A of § 22.1-279.3:1, alcohol or drug use or abuse in or related to the school or institution or in connection with any school or institution activity, or information that an individual poses any credible danger of serious bodily injury or death to one or more students, school personnel, or others on school property shall be immune from all civil liability that might otherwise be incurred or imposed as the result of the making of such a report, investigation or disclosure.

(Code 1950, § 8-631.1; 1972, c. 762; 1977, c. 617; 1982, c. 259; 1988, c. 159; 1995, c. 759; 2000, c. 79; 2001, cc. 688, 820; 2003, c. 954; 2013, c. 665.)

Editor's note. - At the direction of the Code Commission, the amendment to this section by Acts 1995, c. 759, was not implemented in light of the decision not to implement the amendment by Acts 1995, c. 759, to § 22.1-280.1 because of a conflict with the amendment to § 22.1-280.1 by Acts 1995, c. 773. The 1995 amendment would have inserted a reference to § 22.1-280.1. The 2000 amendment subsequently added the reference.

The 2000 amendments. - The 2000 amendment by c. 79 inserted "conduct involving bomb threats, firebombs, explosive materials or other similar devices as described in clauses (v) and (vi) of § 22.1-280.1 A, or."

The 2001 amendments. - The 2001 amendments by c. 688 and c. 820 are identical, and substituted " § 22.1-279.3:1" for " § 22.1-280.1."

The 2003 amendments. - The 2003 amendment by c. 954 substituted "clauses (vi) and (vii)" for "clauses (v) and (vi)."

The 2013 amendments. - The 2013 amendment by c. 665, substituted "any person" for "any teacher, instructor, principal, school administrator, school coordinator, guidance counselor or any other professional, administrative or clerical staff member or other personnel of any elementary or secondary school, or institution of higher learning," substituted "subsection A of § 22.1-279.3:1" for " § 22.1-279.3:1 A, or," and inserted "or information that an individual poses any credible danger of serious bodily injury or death to one or more students, school personnel, or others on school property."

Law review. - For 1995 survey of civil practice and procedure, see 29 U. Rich. L. Rev. 897 (1995).

§ 8.01-48. Mitigation in actions against newspapers, etc.

In any civil action against the publisher, owner, editor, reporter or employee of any newspaper, magazine or periodical under § 8.01-45 , or for libel or defamation, because of any article, statement or other matter contained in any such newspaper, magazine or periodical, the defendant, whether punitive damages be sought or not, may introduce in evidence in mitigation of general and punitive damages, or either, but not of actual pecuniary damages, all the circumstances of the publication, including the source of the information, its character as affording reasonable ground of reliance, any prior publication elsewhere of similar purport, the lack of negligence or malice on the part of the defendant, the good faith of the defendant in such publication, or that apology or retraction, if any, was made with reasonable promptness and fairness; provided that the defendant may introduce in evidence only such circumstances and to the extent set forth in his or its grounds of defense.

(Code 1950, § 8-632; 1954, c. 333; 1977, c. 617.)

Law review. - For comment on the constitutional privileges of publishers, see 11 U. Rich. L. Rev. 177 (1976). For survey of Virginia tort law for the year 1975-1976, see 62 Va. L. Rev. 1489 (1976).

Michie's Jurisprudence. - For related discussion, see 12A M.J. Libel and Slander, §§ 15, 24, 34, 43.

CASE NOTES

Purpose of section. - By the express mandate of this section certain evidence in mitigation, not admissible prior to this section where punitive damages were not claimed, was made admissible, and was designed to mitigate general damages to which a plaintiff theretofore had been entitled. News Leader Co. v. Kocen, 173 Va. 95 , 3 S.E.2d 385 (1939) (decided under a prior version of this section).

As a matter of state law the negligence standard should be applicable to media and nonmedia defendants alike. Gazette, Inc. v. Harris, 229 Va. 1 , 325 S.E.2d 713, cert. denied sub nom. Fleming v. Moore, 472 U.S. 1032, 105 S. Ct. 3513, 87 L. Ed. 2d 643, cert. denied sub nom. Port Packet Corp. v. Lewis, 473 U.S. 905, 105 S. Ct. 3528, 87 L. Ed. 2d 653 (1985).

Province of jury. - The jury might determine that the evidence introduced under the provisions of this section eliminated all general or compensatory damages not "actual pecuniary," and thus allow plaintiff only nominal damages. The weight to be given the evidence introduced in mitigation is peculiarly the province of the jury, and not of the court. News Leader Co. v. Kocen, 173 Va. 95 , 3 S.E.2d 385 (1939) (decided under prior law).

Instruction on damages. - Obviously it would be error to use the expression "slight actual damages" or "substantial actual damages." As compensatory damages include all damages other than punitive or exemplary, the use of the word "substantial" in an instruction unduly emphasizes the amount of damages which may be awarded. Any modifying word or phrase of the term "actual or compensatory damages" does not clarify the meaning intended to be conveyed and should be avoided. News Leader Co. v. Kocen, 173 Va. 95 , 3 S.E.2d 385 (1939) (decided under prior law).

§ 8.01-49. Defamatory statements in radio and television broadcasts.

The owner, licensee or operator of a radio and television broadcasting station or network of stations, and the agents or employees of any such owner, licensee or operator, shall not be liable for any damages for any defamatory statement published or uttered in or as a part of any such broadcast, by one other than such owner, licensee or operator, or agent or employee thereof, unless it shall be alleged and proved by the complaining party, that such owner, licensee, operator, such agent or employee, failed to exercise due care to prevent the publication or utterance of such statement in such broadcast; provided, however, that in no event shall any owner, licensee or operator, or the agents or employees of any such owner, licensee or operator of such a station or network of stations be held liable for damages for any defamatory statement broadcast over the facilities of such station or network by or on behalf of any candidate for public office.

(Code 1950, § 8-632.1; 1977, c. 617.)

REVISERS' NOTE.

The former § 8-632.1 phrase "visual or sound radio" modifying "broadcasts" has been changed to "radio and television" so as to clearly indicate the section's applicability to all such broadcasts.

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Law review. - For comment on the constitutional privileges of publishers, see 11 U. Rich. L. Rev. 177 (1976). For note on defamation of public figures, see 39 Wash. & Lee L. Rev. 1327 (1982).

For article on libel and slander in Virginia, see 17 U. Rich. L. Rev. 769 (1983).

§ 8.01-49.1. Liability for defamatory material on the Internet.

No provider or user of an interactive computer service on the Internet shall be treated as the publisher or speaker of any information provided to it by another information content provider. No provider or user of an interactive computer service shall be liable for (i) any action voluntarily taken by it in good faith to restrict access to, or availability of, material that the provider or user considers to be obscene, lewd, lascivious, excessively violent, harassing, or intended to incite hatred on the basis of race, religious conviction, gender, disability, gender identity, sexual orientation, color, or national origin, whether or not such material is constitutionally protected, or (ii) any action taken to enable, or make available to information content providers or others, the technical means to restrict access to information provided by another information content provider.
As used in this section:
"Disability" means a physical or mental impairment that substantially limits one or more of a person's major life activities.

"Information content provider" means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.

"Interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

"Internet" means the international computer network of interoperable packet-switched data networks.

(2000, c. 930; 2020, cc. 746, 1171.)

Cross references. - For procedure in civil proceeding where it is alleged that an anonymous individual has engaged in Internet communications that are tortious, see § 8.01-407.1 .

The 2020 amendments. - The 2020 amendments by cc. 746 and 1171 are identical, and in subsection A, inserted "gender, disability, gender identity, sexual orientation" in clause (i); in subsection B, deleted "Definitions" at the beginning and inserted the definition of "Disability".

Law review. - For 2000 survey of Virginia technology law, see 34 U. Rich. L. Rev. 1051. (2000).

Article 5. Death by Wrongful Act.

§ 8.01-50. Action for death by wrongful act; how and when to be brought.

Whenever the death of a person shall be caused by the wrongful act, neglect, or default of any person or corporation, or of any ship or vessel, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action, or to proceed in rem against such ship or vessel or in personam against the owners thereof or those having control of her, and to recover damages in respect thereof, then, and in every such case, the person who, or corporation or ship or vessel which, would have been liable, if death had not ensued, shall be liable to an action for damages, or, if a ship or vessel, to a libel in rem, and her owners or those responsible for her acts or defaults or negligence to a libel in personam, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances, as amount in law to a felony.
Whenever a fetal death, as defined in § 32.1-249 , is caused by the wrongful act, neglect, or default of any person, ship, vessel, or corporation, the natural mother of the fetus may bring an action pursuant to this section against such tortfeasor. Nothing in this section shall be construed to create a cause of action for a fetal death against the natural mother of the fetus.
Every such action under subsection A shall be brought by and in the name of the personal representative of such deceased person. Actions for fetal death under subsection B shall be brought by and in the name of the natural mother; provided, however, if the natural mother dies, or is or becomes a person under a disability as defined in § 8.01-2 , such action may be initiated or maintained by the administrator of the natural mother's estate, her guardian, or her personal representative qualified to bring such action. In an action for fetal death under subsection B brought under Chapter 21.1 (§ 8.01-581.1 et seq.) where the wrongful act that resulted in a fetal death also resulted in the death of another fetus of the natural mother or in the death or injury of the natural mother, recovery for all damages sustained as a result of such wrongful act shall not exceed the limitations on the total amount recoverable for a single patient for any injury under § 8.01-581.15 . The person bringing an action under subsection B shall have the power to compromise a claim pursuant to § 8.01-55 and any damages recovered shall be distributed pursuant to this article. Every such action under this section shall be brought within the time limits specified in § 8.01-2 44.
If the deceased person was an infant who was in the custody of a parent pursuant to an order of court or written agreement with the other parent, administration shall be granted first to the parent having custody; however, that parent may waive his right to qualify in favor of any other person designated by him. If no such parent or his designee applies for administration within 30 days from the death of the infant, administration shall be granted as in other cases.
For purposes of this section, "natural mother" means the woman carrying the child.
(Code 1950, § 8-633; 1958, c. 470; 1977, c. 617; 1981, c. 115; 2012, c. 725.)

REVISERS' NOTE.

This proposal combines former §§ 8-633 and 8-634 with the former being subsection (a), and the latter subsection (b). Changes include:

The survival provisions in former § 8-633 have been deleted as unnecessary. See § 8.01-25 .
The statute of limitations provisions in former §§ 8-633 and 8-634 have been removed and placed in § 8.01-244 .
The last paragraph of former §§ 8-633 and 8-634 regarding the statute of limitations in pre-July 1, 1958 actions have been deleted as no longer having any significance.

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Cross references. - As to appointment of administrator for prosecution of action for personal injury or wrongful death against or on behalf of estate of deceased resident or nonresident, see § 64.2-454 .

As to when inventory and settlement not required of personal representative, see § 64.2-1301 .

For rules of court governing practice and procedure in civil actions, see Rules 3:1 through 3:25.

For rule on substitution of parties, see Rule 3:17.

The 2012 amendments. - The 2012 amendment by c. 725 added subsections B and E; redesignated former subsections B and C as subsections C and D; and rewrote subsection C.

Law review. - For article, "Basic Protection and Future of Negligence Law," see 3 U. Rich. L. Rev. 1 (1968). For survey of Virginia law on torts for the year 1967-1968, see 54 Va. L. Rev. 1649 (1968); for the year 1968-1969, see 55 Va. L. Rev. 1395 (1969). For comment, "Wrongful Death: Assignment of Right to Potential Proceeds," see 26 Wash. & Lee L. Rev. 384 (1969). For survey of Virginia law on torts for the year 1969-1970, see 56 Va. L. Rev. 1419 (1970). For articles on damages recoverable for wrongful death, see 5 U. Rich. L. Rev. 213 (1971) and 12 Wm. & Mary L. Rev. 396 (1970). For survey of Virginia law on torts for the year 1972-1973, see 59 Va. L. Rev. 1590 (1973). For note discussing diversity jurisdiction and wrongful death actions brought by nonresident administrators, see 30 Wash. & Lee L. Rev. 282 (1973). For article, "Telling the Time of Human Death by Statute: An Essential and Progressive Trend," see 31 Wash. & Lee L. Rev. 521 (1974). For note, "Tort Law - Interspousal Immunity - Action for Wrongful Death Against Surviving Spouse Held Maintainable When Such Act Terminates Marriage and Neither Child Nor Grandchild Survives Decedent - Korman v. Carpenter, 216 Va. 86 , 216 S.E.2d 195 (1975)," see 10 U. Rich. L. Rev. 434 (1976). For comment, "The Covenant Not to Sue: Virginia's Effort to Bury the Common Law Rule Regarding the Release of Joint Tortfeasors," see 14 U. Rich. L. Rev. 809 (1980). For survey of Virginia law on practice and pleading for the year 1978-1979, see 66 Va. L. Rev. 343 (1980). For note discussing wrongful death of child conceived by in vitro fertilization, see 17 U. Rich. L. Rev. 311 (1983).

For article, "Civil Rights and 'Personal Injuries': Virginia's Statute of Limitations for Section 1983 Suits," see 26 Wm. & Mary L. Rev. 199 (1985). For 1987 survey of Virginia civil procedure and practice, see 21 U. Rich. L. Rev. 667 (1987).

For note, "Recovery for the Wrongful Death of a Fetus," see 25 U. Rich. L. Rev. 391 (1991).

For a review of damages in medical malpractice in Virginia, see 33 U. Rich. L. Rev. 919 (1999).

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

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

For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).

For annual survey essay, "Election of Remedies in the Twenty-First Century: Centra Health, Inc. v. Mullins," 44 U. Rich. L. Rev. 149 (2009).

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

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

For essay, "How (Not) to Talk About Abortion," see 47 U. Rich. L. Rev. 425 (2012).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abatement, Survival and Revival, §§ 10, 30; 1A M.J. Actions, § 25; 1A M.J. Admiralty, §§ 10, 23; 5C M.J. Death by Wrongful Act, §§ 3 - 5, 8 - 11; 8A M.J. Executors and Administrators, § 347; 14B M.J. Prisons and Prisoners, § 2.

CASE NOTES

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

I. DECISIONS UNDER CURRENT LAW.

A. GENERAL CONSIDERATION.

Purpose of statute. - The intent of the wrongful death statute is not to accumulate an estate for the decedent but to compensate for a loss suffered by those entitled to recover. Cassady v. Martin, 220 Va. 1093 , 266 S.E.2d 104 (1980).

The object of the wrongful death statute is to compensate these beneficiaries for their loss occasioned by the decedent's death. The words "damage" and "loss" clearly indicate a damage and loss sustained by someone, and the loss means the loss to the statutory beneficiary in this case. Cassady v. Martin, 220 Va. 1093 , 266 S.E.2d 104 (1980).

This section is not penal or exemplary but remedial. Hewitt v. Firestone Tire & Rubber Co., 490 F. Supp. 1358 (E.D. Va. 1980).

And being remedial, this statute is construed broadly. Hewitt v. Firestone Tire & Rubber Co., 490 F. Supp. 1358 (E.D. Va. 1980).

Punitive damages not awarded if offender is dead. - Where the offender is dead at the time of trial, punitive or exemplary damages may not be awarded. The purpose of punitive damages is to punish the offender, not to compensate the victim. Tarbrake v. Sharp, 894 F. Supp. 270 (E.D. Va. 1995).

Where the alleged offender and the plaintiff were both killed in an automobile accident, an award of punitive damages will not serve its intended purpose of punishing the tortfeasor. Tarbrake v. Sharp, 894 F. Supp. 270 (E.D. Va. 1995).

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

Sections were enacted to extend application of this section. - Sections 8.01-25 and 8.01-56 are not in conflict with § 8.01-21 . They were enacted to extend the application of this section, the wrongful death statute, those situations not covered by the original Lord Campbell's Act, in which a plaintiff who has filed an action for personal injuries, dies of those injuries before a verdict is returned. It was unnecessary at common law to amend, revive, or convert the action of the party who survived the return of a verdict, and it is equally unnecessary under the present statutory scheme. Bulala v. Boyd, 239 Va. 218 , 389 S.E.2d 670 (1990).

Unborn child is not a "person" within the meaning of the wrongful death statute. Modaber v. Kelley, 232 Va. 60 , 348 S.E.2d 233 (1986).

Negligence in womb when child born alive and later dies. - An action for a child's wrongful death could be maintained against a tortfeasor whose negligence occurred when the decedent was in the mother's womb, where the child was born alive but died the same evening, and its premature delivery and death were proximately caused by the tortfeasor's negligence. Kalafut v. Gruver, 239 Va. 278 , 389 S.E.2d 681 (1990).

Debtor's right to proceeds of wrongful death action is a property right; as a property right, it is subject to creditor process, and is not exemptable from the debtor's estate. In re Tignor, 21 Bankr. 219 (Bankr. E.D. Va. 1982), rev'd on other grounds sub nom. Tignor v. Parkinson, 729 F.2d 977 (4th Cir. 1984).

Decedent's suicide barred recovery for wrongful death action by personal representative. - That the decedent did not have a full appreciation of the injury she would incur from her actions was of no consequence; decedent's participation in an unlawful and immoral act by committing suicide barred recovery for wrongful death by her personal representative. Hill v. Nicodemus, 755 F. Supp. 692 (W.D. Va. 1991), aff'd, 979 F.2d 987 (4th Cir. 1992).

Failure to shock fair-minded persons. - Assistant director was entitled to summary judgment on the gross negligence claim because the mother fell far short of creating a triable issue as to whether the director's actions, or alleged lack thereof, would shock fair-minded persons; the mother failed to show sufficient evidence that the director was deliberately indifferent to or tacitly authorized widespread abuses of patient supervision. Wilkins v. Montgomery, 751 F.3d 214, 2014 U.S. App. LEXIS 8412 (4th Cir. 2014).

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

Tolling provision of the Virginia Medical Malpractice Act, former § 8.01-581.9 , which tolled the statute of limitations for 120 days from the giving of notice of 60 days following issuance of an opinion by the medical review panel, applied to the two year limitations contained in the Virginia Wrongful Death Act, this section and subsection B of § 8.01-244 . Wertz v. Grubbs, 245 Va. 67 , 425 S.E.2d 500 (1993).

Accrual when injury known and not when injury would cause death. - Deceased's claim for the personal injury that allegedly caused her death accrued April 8, 1984, when she wrote in her notes that "on June 1 '83, I had a physical . . . . In retrospect, a mammogram should have been ordered because of previous breast biopsies, family history, and post-menopausal age 59," even though she did not know at that time she was going to die; when she died on April 9, 1986, the two-year statute of limitations of Federal Tort Claims Act had run on any claim based on negligence in failing to make a timely diagnosis, and thus, wrongful death action was properly dismissed as time-barred. Miller v. United States, 932 F.2d 301 (4th Cir. 1991).

Statute of limitations was not tolled by continuous treatment theory. - In action for wrongful death due to medical malpractice by government doctors in failing to order a mammogram under Federal Tort Claims Act, 28 U.S.C. § 1346, statute of limitation on action was not tolled by under continuous treatment theory since treatment received after deceased discovered that she should have been ordered to have a mammogram had nothing to do with the ordering of a mammogram, and the doctors who administered such treatment were not acting under the advice or direction of the doctor who failed to order the mammogram. Miller v. United States, 932 F.2d 301 (4th Cir. 1991).

Sovereign immunity as a defense. - Court declined to dismiss, on grounds of sovereign immunity, a medical malpractice claim and wrongful death claim against a prison doctor, because the parties had submitted very little information as to the nature of the employment relationship between the prison doctor and the Commonwealth of Virginia. Simmons v. Johnson, - F. Supp. 2d - , 2005 U.S. Dist. LEXIS 24257 (W.D. Va. Oct. 20, 2005), transferred, 2005 U.S. Dist. LEXIS 29546 (W.D. Va. Nov. 22, 2005).

Applicability of other jurisdiction's wrongful death statute. - Doctrine of lex loci delicti was applicable to substantive issues in action filed in Virginia as a result of an airplane crash in Maryland and because there was a dispute regarding wrongful death statutes which was a substantive issue because Maryland's wrongful death statute limits the recovery of parents for the death of an adult child to pecuniary loss, while Virginia's wrongful death statute contains no such limitation, Maryland law was therefore applicable. Spring v. United States, 833 F. Supp. 575 (E.D. Va. 1993).

No election of remedy. - Circuit court erred in granting the motions to dismiss on the grounds that plaintiff elected a remedy when he settled the Kentucky personal injury action against the Kentucky medical providers, and that plaintiff's wrongful death action against the Virginia medical providers was barred by this statute because there was no language in this statute that would prohibit the filing of a wrongful death action in Virginia based on the settlement of a personal injury claim in another state; and Kentucky law allowed the filing of a personal injury claim in addition to a wrongful death claim for the same injury. Green v. Diagnostic Imaging Assocs., P.C., 843 S.E.2d 371, 2020 Va. LEXIS 61 (June 4, 2020).

Inclusion in court order. - Nothing in the language of the Wrongful Death Act, §§ 8.01-50 through 8.01-56 , precludes the inclusion in a court's order of the affirmative relief the parties have agreed to as part of their settlement of a Wrongful Death Action. Fisher v. Salute, 51 Va. App. 293, 657 S.E.2d 169, 2008 Va. App. LEXIS 99 (2008).

Applied in Vicars v. Mullins, 227 Va. 432 , 318 S.E.2d 377 (1984); Lucas v. HCMF Corp., 238 Va. 446 , 384 S.E.2d 92 (1989); Riddle v. Shell Oil Co., 764 F. Supp. 418 (W.D. Va. 1990); Rice v. Charles, 260 Va. 157 , 532 S.E.2d 318 (2000); Duncan v. Duncan (In re Duncan), 448 F.3d 725, 2006 U.S. App. LEXIS 12818 (4th Cir. 2006); Hawthorne v. VanMarter, 279 Va. 566 , 692 S.E.2d 226, 2010 Va. LEXIS 54 (2010); Conger v. Barrett, 280 Va. 627 , 702 S.E.2d 117, 2010 Va. LEXIS 261 (2010).

B. RIGHT OF ACTION.

A claim under this section is not extinguished by simultaneous assertion of a claim under 42 U.S.C. § 1983. Miltier v. Beorn, 696 F. Supp. 1086 (E.D. Va. 1988).

The structural relationship between § 8.01-25 and this section shows that under Virginia law, a wrongful death claim can peaceably coexist with a 42 U.S.C. § 1983 claim. Miltier v. Beorn, 696 F. Supp. 1086 (E.D. Va. 1988).

Uninsured motorist recovery barred by exclusive remedy clause of workmen's compensation law. - Virginia law does not permit recovery by an insured's estate under the uninsured motorist provision of the insured's policy (paid for by the insured), where the insured was killed in a work-related motor vehicle accident and where the employer/vehicle owner and co-employee/vehicle operator both had insurance, but where the exclusive remedy clause of the Virginia Workmen's Compensation Act bars recovery under those other policies. Aetna Cas. & Sur. Co. v. Dodson, 235 Va. 346 , 367 S.E.2d 505 (1988).

A wrongful death action is a right of action to enforce a cause of action, both created by statute in derogation of the common law. Horn v. Abernathy, 231 Va. 228 , 343 S.E.2d 318 (1986).

Section does not create new cause of action. - This section does not create a new cause of action, but only a right of action in a personal representative to enforce the decedent's claim for any personal injury that caused death; for this reason, a wrongful death action is necessarily time-barred, if at the time of the decedent's death, her personal injury claim based on the tortious conduct that ultimately caused death is already time-barred. Miller v. United States, 932 F.2d 301 (4th Cir. 1991).

This section confers on the decedent's personal representative a new and original right of action the object of which is to compensate the beneficiaries for their loss. In re Tignor, 21 Bankr. 219 (Bankr. E.D. Va. 1982), rev'd on other grounds sub nom. Tignor v. Parkinson, 729 F.2d 977 (4th Cir. 1984).

Subsection B vests the right of action in the decedent's personal representative. The right of action, however, is not a right to enforce a cause of action personal to the personal representative. As the party-plaintiff, he is merely a surrogate for the beneficiaries of the cause of action named in § 8.01-53 . Horn v. Abernathy, 231 Va. 228 , 343 S.E.2d 318 (1986).

Sole surviving co-administrator may bring wrongful death action. - Sole surviving co-administrator of an intestate decedent's estate was entitled to maintain a wrongful death action because, under the doctrine of survivorship, the co-administrator, as the sole remaining co-administrator, had the authority to maintain the wrongful death action. Bartee v. Vitocruz, 288 Va. 106 , 758 S.E.2d 549 (2014).

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

No action for death of stillborn infant. - A stillborn infant is not a person within the meaning of the wrongful death statute. No action will lie for the death of a stillborn infant. Myrick v. United States, 723 F.2d 1158 (4th Cir. 1983).

Injury to an unborn child constitutes injury to the mother and she may recover for such physical injury and mental suffering associated with a stillbirth. She is not entitled, however, to damages ordinarily recoverable in a wrongful death action. For example, the mother may not recover for anticipated loss of the child's society, companionship, comfort, or guidance. She may not be compensated for an expected loss of income of the child or for services, protection, care, or assistance expected to be provided by the child had he lived. Modaber v. Kelley, 232 Va. 60 , 348 S.E.2d 233 (1986).

Recovery barred by exclusivity provision in Workers' Compensation Law claim. - Had a widow's husband survived his work-related accident, he could not have sued his employer or its subcontractors due to workers' compensation exclusivity under subsection A of § 65.2-307 ; therefore, pursuant to subsection A of § 8.01-50 , the widow could not maintain a wrongful death action against them. Giordano v. McBar Indus., 284 Va. 259 , 729 S.E.2d 130 (2012).

Intoxication, voluntarily induced, is not the type of physical incapacity which will excuse contributory negligence via application of the last clear chance doctrine, when such conduct does not otherwise excuse fault; therefore, plaintiff, whose decedent was guilty of contributory negligence as a matter of law in lying unconscious or asleep in the middle of interstate due to his voluntary intoxication, was not entitled to rely on the last clear chance doctrine as a basis for recovery against defendant truck driver. Pack v. Doe, 236 Va. 323 , 374 S.E.2d 22 (1988).

C. ACTION BY PERSONAL REPRESENTATIVE.

Administratrix may bring action under 42 U.S.C. § 1983. - A cause of action under 42 U.S.C. § 1983, alleging that actions by defendants which resulted in decedent's death violated the decedent's civil rights, survived decedent's death, such that a duly qualified administratrix was entitled to pursue the decedent's claims against defendants. O'Connor v. Several Unknown Correctional Officers, 523 F. Supp. 1345 (E.D. Va. 1981).

And damages are recoverable for deprivation of decedent's civil rights. - A decedent's claims under 42 U.S.C. § 1983, based on violations of his civil rights which caused his death, survive him, and his duly qualified administratrix may be awarded compensatory and punitive damages for the deprivation if she succeeds on the merits of the case, since allowing the administratrix to obtain compensation only for whatever loss was suffered by statutory beneficiaries under the Virginia wrongful death statute and excluding any punitive award would be inconsistent with the compensatory and deterrent policies behind 42 U.S.C. § 1983. O'Connor v. Several Unknown Correctional Officers, 523 F. Supp. 1345 (E.D. Va. 1981).

Surviving spouse not qualified as personal representative. - When a surviving wife was not qualified as a personal representative in any state when the wife filed a wrongful death suit in Virginia under § 26-59 and subsection B of § 8.01-50 , the wife lacked standing to maintain the action; therefore, the statute of limitations was not tolled by subsection B of § 8.01-244 and the action was properly dismissed. Fowler v. Winchester Med. Ctr., Inc., 266 Va. 131 , 580 S.E.2d 816, 2003 Va. LEXIS 68 (2003).

As a decedent's widow had not qualified as the administratrix of his estate when she filed a wrongful death suit, the action was nullity; therefore, she was not entitled to a nonsuit under § 8.01-380 . Johnston Mem. Hosp. v. Bazemore, 277 Va. 308 , 672 S.E.2d 858, 2009 Va. LEXIS 32 (2009).

Estate via personal representative is proper plaintiff. - Estate of a U.S. AID worker who was killed in the 1983 U.S. Embassy bombing in Beirut, Lebanon, was the proper plaintiff to bring a wrongful-death action against defendants, the Islamic Republic of Iran and its Ministry of Intelligence and Security, under Virginia law. Dammarell v. Islamic Republic of Iran, 404 F. Supp. 2d 261, 2005 U.S. Dist. LEXIS 32618 (D.D.C. Dec. 14, 2005).

Administratrix proper party. - Where an administratrix sued an assisted living facility under the Virginia Death by Wrongful Act statute, § 8.01-50 , alleging that the facility's negligence caused her mother's injury and death, the estate was not bound by an arbitration clause that was in a residency agreement, of which the mother was unaware. Although the administratrix signed her mother's name to the agreement, agency was not established because she did not consent to her daughter's action and there was no legal documentation granting the daughter power of attorney or authority to bind the mother to all of the agreement's elements. Giordano v. Atria Assisted Living, Va. Beach, LLC, 429 F. Supp. 2d 732, 2006 U.S. Dist. LEXIS 24451 (E.D. Va. 2006).

Sole appointment to bring wrongful death action does not confer standing to bring survivor action. - Estate administrator solely appointed to bring a wrongful death action under § 8.01-50 lacked standing to assert survival claims on behalf of the estate, although she may not have received the qualification authority that she intended, because the responsibility for the mistake was with the administrator and not with the clerk. Antisdel v. Ashby, 279 Va. 42 , 688 S.E.2d 163 (2010).

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

II. DECISIONS UNDER PRIOR LAW.

A. GENERAL CONSIDERATION.

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

Legislative history. - At common law the right of action to recover damages for "wrongful death" was unknown. This situation existed in Virginia until January 14, 1871, when the original act giving such a right to a personal representative was enacted. The prototype of this act is the English statute known as "Lord Campbell's Act," which was passed in 1846. VEPCO v. Decatur, 173 Va. 153 , 3 S.E.2d 172 (1939).

The wrongful death statutes were originally adopted by the General Assembly in 1871 and modeled after Lord Campbell's Act passed by the English Parliament in 1846. Lawrence v. Craven Tire Co., 210 Va. 138 , 169 S.E.2d 440 (1969), commented on in 4 U. Rich. L. Rev. 322 (1970).

At common law no civil action was maintainable against a person for the wrongful death of another. Lawrence v. Craven Tire Co., 210 Va. 138 , 169 S.E.2d 440 (1969), commented on in 4 U. Rich. L. Rev. 322 (1970).

Purpose of statute. - This section and § 8.01-55 intend to withdraw from the wrongdoer the immunity from civil liability which the rule of the common law afforded him, and to provide for the recovery of such damages notwithstanding the death of the injured person. In so doing, however, it was plainly not the intention to continue or cause to survive his right of action for the injury, but to substitute for it and confer upon his personal representative a new and original right of action. Anderson v. Hygeia Hotel Co., 92 Va. 687 , 24 S.E. 269 (1896); Grady v. Irvine, 254 F.2d 224 (4th Cir.), cert. denied, 358 U.S. 819, 79 S. Ct. 30, 3 L. Ed. 2d 60 (1958); Wilson v. Whittaker, 207 Va. 1032 , 154 S.E.2d 124 (1967).

The object of the statute was to give a right of action where none existed at common law, and to prevent an action from abating which would otherwise have abated, but not to allow two actions against the same defendant for the same injury. Brammer's Adm'r v. Norfolk & W. Ry., 107 Va. 206 , 57 S.E. 593 (1907).

The primary object of this section and §§ 8.01-53 and 8.01-54 is to compensate the family of deceased and not to benefit his creditors. Withrow v. Edwards, 181 Va. 344 , 25 S.E.2d 343, rev'd on other grounds, 181 Va. 592 , 25 S.E.2d 899, cert. denied, 320 U.S. 761, 64 S. Ct. 70, 88 L. Ed. 453 (1943).

Rules of statutory construction are not applicable to this section and §§ 8.01-51 through 8.01-56 as they are so plain and free from doubt. Porter v. VEPCO, 183 Va. 108 , 31 S.E.2d 337 (1944).

This section and §§ 8.01-51 through 8.01-56 have no extraterritorial effect. Withrow v. Edwards, 181 Va. 344 , 25 S.E.2d 343, rev'd on other grounds, 181 Va. 592 , 25 S.E.2d 899, cert. denied, 320 U.S. 761, 64 S. Ct. 70, 88 L. Ed. 453 (1943); Sherley v. Lotz, 200 Va. 173 , 104 S.E.2d 795 (1958).

Recoveries under this article and § 8.01-25 distinguished. - The limit of recovery in an action under this article is different from that in the action preserved by § 8.01-25 . In one, the amount of the recovery is limited by statute, is for the benefit of certain designated beneficiaries, and is free from debts and liabilities. In the other, the limit is the amount of damages that can be proved, is an asset of the decedent's estate, and is subject to the payment of his debts. Bagley v. Weaver, 211 Va. 779 , 180 S.E.2d 686 (1971).

For Fourth Circuit case, arising under North Carolina law, holding that the citizenship of the beneficiaries, rather than that of the administrator, is controlling for diversity purposes, see Miller v. Perry, 456 F.2d 63 (4th Cir. 1972).

B. RIGHT OF ACTION.

1. IN GENERAL.

Requirements for maintenance of wrongful death action. - Since the wrongful death act was adopted in Virginia nearly a century ago, it has required for maintenance of a wrongful death action (1) the death of a "person" caused by a wrongful act, neglect, or default, etc., and (2) that the act, neglect or default be "such as would, if death had not ensued, have entitled the party injured to maintain an action" for personal injuries. Lawrence v. Craven Tire Co., 210 Va. 138 , 169 S.E.2d 440 (1969), commented on in 4 U. Rich. L. Rev. 322 (1970).

The right of action for damages for personal injuries, including punitive damages, if any, expires upon the death of the injured person. The death by wrongful act statute does not cause to survive this right of action, but it creates in the decedent's personal representative a new right of action to compensate decedent's statutory beneficiaries for their loss. Its purpose was not to punish the wrongdoer. Wilson v. Whittaker, 207 Va. 1032 , 154 S.E.2d 124 (1967).

"Cause of action" and "right of action" distinguished. - The Supreme Court of Virginia construes its wrongful death statute as creating no new "cause of action" but a "right of action" where no right before existed. The "cause of action" is said to be complete and accrued the moment the tort is committed, but the "right of action" for wrongful death does not arise during the continued life of the injured person, nor does the injured person's "right of action" for personal injury survive his death, if death results from the injury. Grady v. Irvine, 254 F.2d 224 (4th Cir.), cert. denied, 358 U.S. 819, 79 S. Ct. 30, 3 L. Ed. 2d 60 (1958).

Cause of action the same regardless of nature of right. - Whether the right of action given the personal representative be regarded as a survival of the right of action of his decedent, as a revival of the right, as a substituted right, or as a new right, the cause of action is the same, that is, the wrongful injury to the decedent, the wrong which entitled him to maintain an action, if death had not ensued. Payne v. Piedmont Aviation, Inc., 294 F. Supp. 216 (E.D. Va. 1968).

But the right of action is dependent upon right of deceased. - Under the statute the cause of action of the injured party, while alive, is the same cause of action that passes to the personal representative, and the right of the personal representative to recover for the death of his decedent stands upon no higher ground than that occupied by the injured party while living. The statute authorizes an action for wrongful death upon the condition that the facts are such that the deceased might have maintained the action had he lived, for the injury resulting from the same act or omission. VEPCO v. Decatur, 173 Va. 153 , 3 S.E.2d 172 (1939).

And the right of action must exist at decedent's death. - Where a statute in effect gives a remedy to recover damages where the death of a person is caused by the negligent or wrongful act of another, such remedy depends upon the existence in the decedent, at the time of death, of a right of action to recover damages for such injury. Payne v. Piedmont Aviation, Inc., 294 F. Supp. 216 (E.D. Va. 1968).

Where the action for death is under a survival statute or is dependent on the existence of a cause of action in favor of decedent at the time of his death, the action is barred if at the time of death the applicable statute had run against decedent's right of action. Payne v. Piedmont Aviation, Inc., 294 F. Supp. 216 (E.D. Va. 1968).

If the right of action of the injured person has expired at the date of his death, there is no right of action left which the personal representative can exercise. Payne v. Piedmont Aviation, Inc., 294 F. Supp. 216 (E.D. Va. 1968).

Section continues, transmits or substitutes right of action of deceased. - While this section, strictly speaking, may not create a new cause of action, it continues, transmits or substitutes the right, with certain limitations stated in the cognate statutes, to bring the action which decedent had at the time of his death. Sherley v. Lotz, 200 Va. 173 , 104 S.E.2d 795 (1958); Lawrence v. Craven Tire Co., 210 Va. 138 , 169 S.E.2d 440 (1969), commented on in 4 U. Rich. L. Rev. 322 (1970).

This section creates no new cause of action, but simply continues, transmits, or substitutes the right to sue which the decedent had until his death, the effect of which is to permit the personal representative to pick up the abated right of the deceased and prosecute it for the benefit of decedent's beneficiary. Payne v. Piedmont Aviation, Inc., 294 F. Supp. 216 (E.D. Va. 1968).

Only one recovery can be had. - Whether an action be brought by the injured party in his lifetime and revived after his death, or a new action be brought by the personal representative within the statutory period, as provided in the statute, only one recovery can be had, and that for the benefit of the next of kin named in the statute, where any such exists. Brammer's Adm'r v. Norfolk & W. Ry., 107 Va. 206 , 57 S.E. 593 (1907).

This is true when action brought by decedent is revived. - If an action brought by the injured party in his lifetime be revived in the name of his personal representative after his death, and proceed to final judgment, it is a bar to any other action to recover damages for the same injury. Brammer's Adm'r v. Norfolk & W. Ry., 107 Va. 206 , 57 S.E. 593 (1907).

Section has no effect on rule as to loss of minor's services. - The common-law right of a personal representative or parent to recover for losses between the time of injury and the resulting death of a minor, including medical expenses and losses occasioned by his inability to attend to business during that time, is not affected by this section. Stevenson v. Ritter Lumber Co., 108 Va. 575 , 62 S.E. 351 (1908).

Action does not abate upon death of class beneficiaries. - Under the wrongful death statute the cause of action is conferred upon decedent's personal representative and does not abate upon the death of class beneficiaries. Johns v. Blue Ridge Transf. Co., 199 Va. 63 , 97 S.E.2d 723 (1957).

Infancy of beneficiary of action does not toll limitation period. - The statute of limitations for wrongful death actions was not tolled by reason of infancy of the beneficiary of the wrongful death action, since the infant's disability could not prevent the timely institution of the action in view of the fact that wrongful death actions may be brought only by and in the name of the personal representative of the deceased. Beverage v. Harvey, 602 F.2d 657 (4th Cir. 1979).

Judgment binding in subsequent action in federal court. - A final judgment for defendant in a state wrongful death action is binding on the beneficiaries as to their individual claims for personal injuries asserted in a subsequent action against the same defendant in a federal court. Taylor v. Anderson, 303 F.2d 546 (4th Cir. 1962).

2. CONFLICT OF LAWS.

Law of state where injury occurred governs rights under section. - All matters pertaining to the substantive right of recovery under this section, including the right to recover, the nature of the right, and the party in whom it is vested, are governed by the law of the state where the injury resulting in death occurred. Betts v. Southern Ry., 71 F.2d 787 (4th Cir. 1934).

Where an injury has been inflicted in a sister state the laws of that state govern as to the extent of the remedy. Dowell v. Cox, 108 Va. 460 , 62 S.E. 272 (1908).

Where the accident occurred in Maryland, any right of action for the resulting death arises out of the law of Maryland and not out of that of Virginia. Maryland ex rel. Joynes v. Coard, 175 Va. 571 , 9 S.E.2d 454 (1940).

But the acceptance of compensation under the law of one state cannot affect the right to pursue a remedy against a third person under the wrongful death statute of another, unless there is something in the law of the latter which so provides. Betts v. Southern Ry., 71 F.2d 787 (4th Cir. 1934).

3. WHO MAY SUE; DEFENSES.

Negligent plaintiff cannot recover if he would benefit. - Plaintiff could not recover in an action under this section for the negligent killing of his infant son, if he proximately contributed to the accident and would benefit from a recovery. Ratcliffe v. McDonald's Adm'r, 123 Va. 781 , 97 S.E. 307 (1918)See; Richmond, F. & P.R.R. v. Martin, 102 Va. 201 , 45 S.E. 894 (1903).

But contributory negligence of one party does not bar whole recovery. City of Danville v. Howard, 156 Va. 32 , 157 S.E. 733 (1931).

A child en ventre sa mere cannot maintain a common-law action for personal injuries. Lawrence v. Craven Tire Co., 210 Va. 138 , 169 S.E.2d 440 (1969), commented on in 4 U. Rich. L. Rev. 322 (1970).

No action for death of stillborn child. - The Virginia wrongful death statute as written does not provide an action for the wrongful death of a stillborn child. Lawrence v. Craven Tire Co., 210 Va. 138 , 169 S.E.2d 440 (1969)commented on in 4 U. Rich. L. Rev. 322 (1970).

Interspousal immunity lost at death. - Reason for interspousal immunity is to foster a harmonious and conjugal relationship. Obviously, the reason for the rule is lost upon the death of one of the parties for there is no longer a marriage to be saved or a union to be preserved. Korman v. Carpenter, 216 Va. 86 , 216 S.E.2d 195 (1975), commented on in 4 U. Rich. L. Rev. 322 (1976).

Action against surviving spouse. - An action for wrongful death may be maintained, predicated upon injuries to one spouse during marriage arising out of a wrongful act by the other spouse, when such an act results in the termination of the marriage by death, and when the deceased spouse is survived by no living child or grandchild. Korman v. Carpenter, 216 Va. 86 , 216 S.E.2d 195 (1975), commented on in 4 U. Rich. L. Rev. 322 (1976).

This section affords a deceased wife's personal representative no right of action unless the right existed immediately before her death. Surratt v. Thompson, 212 Va. 191 , 183 S.E.2d 200 (1971).

Resident alien friends are entitled to the benefits and remedies afforded by this section. Hence, a resident alien widow, residing in another state, may maintain on behalf of herself and children an action for the wrongful death of her husband. Pocahontas Collieries Co. v. Rukas, 104 Va. 278 , 51 S.E. 449 (1905).

The action for death by the wrongful act or neglect of another given by this section may be maintained for the benefit of alien relatives resident in a foreign country, although they are not expressly named in the statute. Lowmoor Iron Co. v. La Bianca, 106 Va. 83 , 55 S.E. 532 (1906).

Consent which would bar recovery by decedent bars recovery under this section. - If the consent of decedent to the commission of an immoral or illegal act would have been a bar to decedent's right to recover had she survived, such consent bars recovery in an action by her administrator for her wrongful death under the provisions of this section. Miller v. Bennett, 190 Va. 162 , 56 S.E.2d 217 (1949).

Consent of decedent to illegal abortion. - Consent of a mature married woman to an attempt to produce an illegal abortion, resulting in death, bars recovery under this section in an action by her administrator against the party attempting to procure the abortion. Miller v. Bennett, 190 Va. 162 , 56 S.E.2d 217 (1949).

Spouse who deserted decedent and lived in adultery is not barred. - There is no provision in our statutes barring the right of a spouse who has deserted the decedent and lived in adultery from sharing in a recovery for wrongful death; therefore he or she is not so barred. Matthews v. Hicks, 197 Va. 112 , 87 S.E.2d 629 (1955).

4. WHO MAY BE SUED.

Committee of convict can be sued. - A right of action, conferred by this section, may be brought against the committee of a convict. Merchant's Adm'r v. Shry, 116 Va. 437 , 82 S.E. 106 (1914).

5. EVIDENCE.

Measure of damages. - In an action for death by wrongful act, the measure of damages is the pecuniary loss, if any, sustained by the beneficiaries; compensation for their loss of the decedent's care, attention and society, and for their solace and comfort for the sorrow and suffering occasioned by the death of a decedent. Evidence regarding the magnitude and seriousness of the injuries of a decedent, the extent of the mutilation of his body, and other circumstances likely to inflame or prejudice a jury, or invite its sympathy, should not be admitted. Where, as in this case, evidence of this type is admissible here for the reason that it has relevancy in establishing the identity of the driver, in the accident resulting in death, it should be restricted to a showing that the decedent's injuries were such as could have resulted in the deposit of hair, blood and flesh found in the vehicle and testified to by witnesses. Breeding v. Johnson, 208 Va. 652 , 159 S.E.2d 836 (1968).

Evidence as to widow and children of deceased. - In an action under the statute by the administrator of a party killed upon a railroad track against the company, the plaintiff may upon the trial, and before the jury has rendered a verdict, introduce evidence to prove that the deceased left a widow and children, and the number and ages of the children. B & O R.R. v. Sherman's Adm'r, 71 Va. (30 Gratt.) 602 (1878).

Evidence of the physical condition of one or more of the beneficiaries is immaterial to the question of liability or the quantum of the damages. Crawford v. Hite, 176 Va. 69 , 10 S.E.2d 561 (1940).

Evidence that deceased was heavy drinker and that family relations were troubled. - Evidence having been placed before the jury by counsel for the administratrix tending to show deceased to have been a man of sober habits and a devoted and hardworking father, it was error to refuse cross-examination to show he was a heavy drinker and that the family relations were troubled. Basham v. Terry, 199 Va. 817 , 102 S.E.2d 285 (1958), commented on in 4 U. Rich. L. Rev. 322 (1959).

Warrants sworn out against deceased by wife and daughter. - Copies of warrants of arrest sworn out against decedent by his wife and daughter four and five years before his death would have been admissible in mitigation of damages allowable for loss of "care, attention and society" by reason of his death. Such evidence would not have been too remote if so offered in proper form. But the offer of testimony as to the warrants was properly excluded, this not being the best evidence. Basham v. Terry, 199 Va. 817 , 102 S.E.2d 285 (1958), commented on in 4 U. Rich. L. Rev. 322 (1959).

Moral delinquencies. - Evidence offered by the defendants of young girl's moral delinquencies held not relevant on the amount of damages which the jury might award to her parents and other members of her family for the loss of her society and for the sorrow, suffering and mental anguish occasioned to them by her death. Gamble v. Hill, 208 Va. 171 , 156 S.E.2d 888 (1967).

C. ACTIONS AGAINST SHIPS.

Right enforced in jurisdiction where injury occurred. - The lien created by this section, which provides that a ship or vessel, which would have been liable if death had not ensued, shall be liable to an action for damages or to a libel in rem, may be enforced by a suit in rem in a court of admiralty, where the injury occurred at a place within the maritime jurisdiction. The Anglo-Patagonian, 235 F. 92 (4th Cir.), cert. denied, 242 U.S. 636, 37 S. Ct. 19, 61 L. Ed. 539 (1916).

Fact that pilot is in charge does not absolve ship for liability. - At the time of the collision for which she was in fault, the fact that a ship was in charge of a compulsory pilot does not absolve her from liability for the death of persons caused by the collision under this section. Indra Line, Ltd. v. Palmetto Phosphate Co., 239 F. 94 (4th Cir. 1916).

The remedy in rem is in the nature of an admiralty lien and can be enforced in a federal court which has admiralty jurisdiction, and only in a federal court. Continental Cas. Co. v. The Benny Skou, 200 F.2d 246 (4th Cir. 1952), cert. denied, 345 U.S. 992, 73 S. Ct. 1129, 97 L. Ed. 1400 (1953).

The Virginia statute creates a lien on the ship in a case of wrongful death. Lewis v. Jones, 27 F.2d 72 (4th Cir.), cert. denied, 278 U.S. 634, 49 S. Ct. 32, 73 L. Ed. 551 (1928).

This section authorizes recovery for the death of a longshoreman under the substantive principles of the maritime law. Rederi A• Dalen v. Maher, 303 F.2d 565 (4th Cir. 1962).

Lien can be enforced in federal courts. - This section, giving a right of suit in rem against a vessel wrongfully or negligently causing the death of any person, creates a lien, and may be enforced by a libel in rem in the federal courts, when the accident occurs in their maritime jurisdiction. The Glendale v. Evich, 81 F. 633 (4th Cir. 1897).

Once the conclusion is reached that a state statute gives a lien on the ship for wrongful death, such a lien can unquestionably be enforced in a suit in admiralty. Lewis v. Jones, 27 F.2d 72 (4th Cir.), cert. denied, 278 U.S. 634, 49 S. Ct. 32, 73 L. Ed. 551 (1928).

In this section Virginia has bestowed upon admiralty a right to grant a recovery not previously possessed by admiralty. The endowment must be taken cum onere. Rights and liabilities under this section must be the same on the water as on the land. Continental Cas. Co. v. The Benny Skou, 101 F. Supp. 15 (E.D. Va. 1951), aff'd, 200 F.2d 246 (4th Cir. 1952), cert. denied, 345 U.S. 992, 73 S. Ct. 1129, 97 L. Ed. 1400 (1953).

Contributory negligence is not absolute defense. - Contributory negligence is not an absolute bar to a right of recovery in an action against ships under this section. Holley v. The S.S. Manfred Stansfield, 269 F.2d 317 (4th Cir.), cert. denied, 361 U.S. 883, 80 S. Ct. 154, 4 L. Ed. 2d 119 (1959), commented on in 45 Va. L. Rev. 1222 (1959).

And maritime rule of comparative negligence will be applied. - A federal court sitting in admiralty in an action against a vessel and its owners for death of employee of a stevedore will apply the rule that contributory negligence mitigates damages. Holley v. The S.S. Manfred Stansfield, 269 F.2d 317 (4th Cir.), cert. denied, 361 U.S. 883, 80 S. Ct. 154, 4 L. Ed. 2d 119 (1959), commented on in 45 Va. L. Rev. 1222 (1959).

The maritime rule of comparative negligence where the injury resulting in death occurs on navigable waters of the State is unmistakably indicated in the language of this section. Holley v. The S.S. Manfred Stansfield, 269 F.2d 317 (4th Cir.), cert. denied, 361 U.S. 883, 80 S. Ct. 154, 4 L. Ed. 2d 119 (1959), commented on in 45 Va. L. Rev. 1222 (1959).

Recovery may not be used to reimburse employer or compensation carrier. - The provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A., § 901 et seq., do not amend the wrongful death statute of Virginia to the extent that the share of a beneficiary under the death statute may be used to reimburse the employer or compensation carrier for death benefits paid to a beneficiary under the Longshoremen's and Harbor Workers' Compensation Act who is not a recipient beneficiary under the death statute. Holley v. The Manfred Stansfield, 186 F. Supp. 805 (E.D. Va. 1960).

Jones Act and Death on the High Seas Act. - A state wrongful death statute would not be applicable to a situation where the right to maintain an action has been expressly granted under the Jones Act and the Death on the High Seas Act. McPherson v. Steamship S. African Pioneer, 321 F. Supp. 42 (E.D. Va. 1971).

D. ACTION BY PERSONAL REPRESENTATIVE.

The personal representative is the only party that can maintain an action under this section. Goff v. Norfolk & W.R.R., 36 F. 299 (W.D. Va. 1888).

The administrator sues, not for the benefit of the estate, but primarily and substantially as trustee for certain particular kindred of the deceased. Patterson v. Anderson, 194 Va. 557 , 74 S.E.2d 195, cert. denied, 345 U.S. 965, 73 S. Ct. 952, 97 L. Ed. 1384 (1953).

The personal representative of the deceased sues primarily as trustee for certain statutory beneficiaries and not for the general benefit of the decedent's estate. Conrad v. Thompson, 195 Va. 714 , 80 S.E.2d 561 (1954); Wilson v. Whittaker, 207 Va. 1032 , 154 S.E.2d 124 (1967).

Foreign personal representative cannot maintain action in Virginia. - Since the 1950 amendment of § 26-59 a personal representative, who is not a resident of Virginia and who has not qualified or been appointed as such in the State, cannot maintain an action in a United States district court sitting in Virginia, under the Virginia Statute of Death by Wrongful Act. Holt v. Middlebrook, 214 F.2d 187 (4th Cir. 1954).

Virginia requires that the personal representative who prosecutes an action under its wrongful death act must be a resident of that State. This requirement has been held to be binding in the federal courts. Grady v. Irvine, 254 F.2d 224 (4th Cir.), cert. denied, 358 U.S. 819, 79 S. Ct. 30, 3 L. Ed. 2d 60 (1958).

This section and § 26-59 prohibit an Ohio administrator from instituting an action for wrongful death in Virginia. Goranson v. Capital Airlines, 221 F. Supp. 820 (E.D. Va. 1963), cert. denied, 382 U.S. 984, 86 S. Ct. 560, 15 L. Ed. 2d 473 (1966).

Thus action against citizen of Virginia may be maintained only in state courts. - At present an action for wrongful death against a citizen of Virginia may be maintained only in the state courts, and this situation will continue unless the General Assembly of Virginia should choose to modify the effect of the 1950 amendment to § 26-59. Rodgers v. Irvine, 161 F. Supp. 784 (W.D. Va. 1957), aff'd sub nom. Grady v. Irvine, 254 F.2d 224 (4th Cir.), cert. denied, 358 U.S. 819, 79 S. Ct. 30, 3 L. Ed. 2d 60 (1958).

But out-of-state administrator can maintain action in another state. - See Kaufmann v. Service Trucking Co., 139 F. Supp. 1 (D. Md. 1956), holding that a domiciliary administrator appointed in Illinois could maintain an action in Maryland under the Virginia statute without qualifying in Virginia.

If administrator and defendant of different states sufficient for federal jurisdiction. - Where the administrator and defendant are citizens of different states, the action may be brought in the federal courts, though the deceased was a citizen of the same state with defendant, where his widow and children still reside. In such action the real beneficiaries need not be named in the declaration. Harper v. Norfolk & W.R.R., 36 F. 102 (W.D. Va. 1887).

The fact that a citizen of another state is selected as administrator for the purpose of conferring on the United States circuit court jurisdiction of an action to be brought by him, does not defeat that jurisdiction. Goff v. Norfolk & W.R.R., 36 F. 299 (W.D. Va. 1888).

CIRCUIT COURT OPINIONS

Construction of statute. - Demurrer challenging § 8.01-50 as contrary to Virginia law was denied where the statutory language was nearly identical to case law language, the General Assembly had the authority to change the common law, and the case law interpreting a predecessor statute was not common law. Justin Benjamin Velvin v. Tabb, 96 Va. Cir. 208, 2017 Va. Cir. LEXIS 120 (Petersburg July 31, 2017).

Argument that only the natural mother had a right of action under subsections B and C of § 8.01-50 was rejected as contrary to the statutory language. Justin Benjamin Velvin v. Tabb, 96 Va. Cir. 208, 2017 Va. Cir. LEXIS 120 (Petersburg July 31, 2017).

Subsection B of § 8.01-50 was not constitutional where recognizing a fetal death cause of action against any tortfeasor other than the natural mother was an exercise of the state's interest in protecting the unborn. Justin Benjamin Velvin v. Tabb, 96 Va. Cir. 208, 2017 Va. Cir. LEXIS 120 (Petersburg July 31, 2017).

No new cause of action. - This section creates no new cause of action, but continues, transmits, or substitutes the right to sue which the decedent has until his death, permitting a personal representative to pick up the right of the deceased to sue for the benefit of the decedent's beneficiary. Gray v. Rhoads, 55 Va. Cir. 362, 2001 Va. Cir. LEXIS 300 (Charlottesville 2001), remanded on other grounds, 268 Va. 81 , 597 S.E.2d 93 (2004).

Virginia's wrongful death statute does not create a new cause of action, but only a right of action in a personal representative to enforce the decedent's claim for any personal injury that caused death. As set forth in this section, whenever the death of a person shall be caused by the wrongful act, neglect, or default of any person and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and to recover damages in respect thereof. Clearly, the conduct of the wrongdoer toward the decedent (not the beneficiaries) dictates whether recovery may be had. Defenses, such as contributory negligence, would be available to the purported tortfeasor. Thus the decedent by his very conduct can affect the possibility of recovery under the wrongful death scheme. Culler v. Johnson, 98 Va. Cir. 470, 2014 Va. Cir. LEXIS 385 (Roanoke Nov. 21, 2014).

Standing. - Administratrix had standing under § 8.01-13 to bring an action against insurers for their failure to defend under an assignment of rights obtained in a consent agreement with a defendant tortfeasor in a wrongful death action on behalf of five estates' beneficiaries; the administratrix was the proper person to bring the wrongful death actions under § 8.01-50 , and she acted as the surrogate for the beneficiaries of the cause of action named in § 8.01-53 . Beckner v. Twin City Fire Ins. Co., 58 Va. Cir. 544, 2002 Va. Cir. LEXIS 175 (Roanoke 2002).

Where an individual lacked standing to file a wrongful death action under § 8.01-50 , the individual could not be substituted as a plaintiff under Va. Sup. Ct. R. 1:8 when he qualified as a decedent's personal representative more than two years after the death; as a result, the action was barred by the statute of limitations in § 8.01-244 . Young v. Carter, 61 Va. Cir. 682, 2002 Va. Cir. LEXIS 437 (Franklin County 2002).

Dismissal of a complaint by the administratrix of the decedent's estate, for lack of standing, was inappropriate because the allegations by the administratrix of the decedent's pain and suffering did not automatically transform the wrongful death action into a survivorship action, which the administratrix did not have standing to bring. Sciortino v. Piccioni, 88 Va. Cir. 106, 2014 Va. Cir. LEXIS 71 (Norfolk Mar. 20, 2014).

Survivors lacked standing to bring a legal malpractice suit because only a personal representative could bring the underlying wrongful death suit and a legal malpractice claim arising out of that suit. Khattab v. Epperly, 102 Va. Cir. 306, 2019 Va. Cir. LEXIS 252 (Richmond July 9, 2019).

Potential beneficiaries. - In a wrongful death action, the court overruled the doctor's demurrer, because the Wrongful Death Act permitted the distribution of damages to statutory beneficiaries of a fetus beyond the natural mother, and thus, the father, brothers, and sisters could be statutory beneficiaries. Healey v. Perfectly Female Women's Health Care, P.C., 99 Va. Cir. 357, 2018 Va. Cir. LEXIS 121 (Fairfax County July 12, 2018).

Determination of proper venue in wrongful death action. - Although a husband died in a city, the wife's wrongful death cause of action was based on a doctor's alleged negligent medical treatment in a county; therefore, because the city court was not a permissible venue under § 8.01-262 , pursuant to § 8.01-260 , venue had to be transferred to the county court. Sarver v. Prud'Homme, 67 Va. Cir. 315, 2005 Va. Cir. LEXIS 51 (Roanoke 2005).

Cause of action stated. - Defendant officers' demurrer to count IV was overruled to the extent that plaintiff claimed damages for conspiracy occurring after decedent's death because plaintiff's claim in count IV (which alleged that the officers conspired to cover up and conceal their unlawful conduct and racially based violation of their duties and decedent's rights) was equivalent to a wrongful death action under § 8.01-50 et seq. Chandler v. Routin, 63 Va. Cir. 139, 2003 Va. Cir. LEXIS 347 (Norfolk 2003).

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

Single claim for each death. - Only personal representatives of estates of decedents who were killed when their cars were crushed from a dump truck as a result of a collision were entitled to make a single claim against the Virginia Property and Casualty Insurance Guaranty Association, pursuant to the provision of the Act, § 38.2-1600 et seq., for each death resulting from the accident pursuant to § 8.01-50 . MacDougall v. Hartford Ins. Group, 61 Va. Cir. 181, 2003 Va. Cir. LEXIS 24 (Fairfax County 2003).

Appointment of fiduciary required. - Plaintiff parents did not qualify as the personal representatives of their deceased child's estate under subsection B of § 8.01-50 and, therefore, in their wrongful death action brought against a property management corporation, the corporation's plea in bar was granted with prejudice since the two-year statute of limitations had expired the day after the parents brought suit, thereby preventing joinder of a personal representative, who had been appointed 10 months after the suit was filed. The court refused to apply the law of Japan, as urged by the parents, because Japanese law did not require any additional step to qualify a person to bring suit on behalf of a decedent, which directly conflicted with Virginia law requiring the appointment of a fiduciary. Yoshida v. Capital Props. Mgmt., 68 Va. Cir. 279, 2005 Va. Cir. LEXIS 124 (Fairfax County 2005).

Administratrix lacked capacity to bring action. - Wrongful death action pursuant to subsection B of § 8.01-50 by administratrix of decedent, who was not qualified as the personal representative, did not toll the statute of limitations of § 8.01-244 because such action, which was not filed by one with the right capacity or standing, was a nullity. Fowler v. Winchester Med. Ctr., Inc., 59 Va. Cir. 216, 2002 Va. Cir. LEXIS 344 (Winchester July 2, 2002).

Administratrix had capacity to bring action. - Consultant's claim that a wrongful death suit was improperly filed by an administratrix rather than a personal representative as required by § 8.01-50 was rejected as the definition of personal representative in § 1-234 included an administrator. Rodriguez v. N. Va. Elec. Coop., 79 Va. Cir. 266, 2009 Va. Cir. LEXIS 236 (Loudoun County Sept. 14, 2009).

Administrator lacked capacity to accept service of process. - Defendant's motion to quash service of process of a motion for judgment on the ground that the administrator who accepted service of process did not have authority to do so as her qualification was pursuant to § 8.01-50 , not former § 64.1-75, was properly granted because, while the administrator intended to qualify in order to accept service of process, she did not do so, and she, not the clerk, bore the responsibility for this mistake. Thus, there was, in fact, no error or oversight to correct, as contemplated by § 8.01-428 . Blick v. Fant, 70 Va. Cir. 76, 2005 Va. Cir. LEXIS 292 (Greensville County 2005).

Administrator could not sue groups. - As a decedent could not initiate a personal injury suit against two groups before her death since the limitations period had passed, the administrator could not sue the groups for wrongful death under § 8.01-50 on the decedent's behalf under § 8.01-244 ; the claims filed against two servants of the groups did not toll the limitations period as to their master. Jackson v. Vanga, 85 Va. Cir. 266, 2012 Va. Cir. LEXIS 90 (Norfolk Aug. 24, 2012).

Dismissal based on charitable immunity. - Motions to dismiss by employees of a charity were granted as to a wrongful death action, filed by the administrator of an estate, because the employees were entitled to charitable immunity as employees of a charity, and the immunity applied to both simple and gross negligence. Brown v. Mills, 61 Va. Cir. 479, 2003 Va. Cir. LEXIS 47 (Portsmouth 2003).

Surviving spouse's remarriage is generally inadmissible. - Defendants in a wrongful death action were precluded from mentioning a widow's remarriage during voir dire or opening statements, because such evidence was generally inadmissible, but an absolute ruling on the use of the evidence was premature when no evidence had yet been introduced at trial; if the widow opened the door or, in defendants' opinion, the testimony or other evidence during trial provided a basis for admitting the remarriage evidence, defendants were given leave to request its admission. Flannagan v. Drs. Cochran Eberly & Howe, P.C., 70 Va. Cir. 1, 2005 Va. Cir. LEXIS 311 (Alexandria 2005).

Contract for arbitration binding on beneficiaries. - Circuit court entered an order compelling arbitration of a wrongful death action because a decedent's contract for arbitration entered into on her behalf by her attorney in fact, which bound the decedent, her assessors, legal representatives, and beneficiaries was binding on the statutory beneficiaries. Bohlen v. Capital Senior Living, Inc., 104 Va. Cir. 178, 2020 Va. Cir. LEXIS 18 (Chesapeake Jan. 31, 2020).

Arbitration addendum. - In a wrongful death case, even if an arbitration addendum had been deemed to be validly executed by a signer as power-of-attorney, it nonetheless did not require arbitration and waive the constitutional right of the jury trial for the statutory beneficiaries. Stevens v. Medical Facilities of Am. XXXII (32), 98 Va. Cir. 376, 2018 Va. Cir. LEXIS 122 (Nelson County June 27, 2018).

Admissibility of evidence. - In a wrongful death case, the court denied defendant's motion in limine to exclude evidence of any condition of the decedent that was not the proximate cause of the decedent's death, including the existence of decubitus ulcers, dehydration, and the use of a catheter. The essence of defendant's motion depended on relevance, and issues of relevance could be better analyzed at trial. Wolf v. A+ Loving Care, Inc., 72 Va. Cir. 369, 2006 Va. Cir. LEXIS 272 (Roanoke County December 28, 2006).

In a wrongful death case, the court denied plaintiff's motion in limine to exclude do-not-resuscitate orders, a surrogate directive, and a living will. Whether these were unduly prejudicial was a determination that should be made at trial. Wolf v. A+ Loving Care, Inc., 72 Va. Cir. 369, 2006 Va. Cir. LEXIS 272 (Roanoke County December 28, 2006).

§ 8.01-50.1. Certification of expert witness opinion at time of service of process.

Every motion for judgment, counter claim, or third party claim in any action pursuant to § 8.01-50 for wrongful death against a health care provider, at the time the plaintiff requests service of process upon a defendant, or requests a defendant to accept service of process, shall be deemed a certification that the plaintiff has obtained from an expert witness whom the plaintiff reasonably believes would qualify as an expert witness pursuant to subsection A of § 8.01-581.20 a written opinion signed by the expert witness that, based upon a reasonable understanding of the facts, the defendant for whom service of process has been requested deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed. This certification is not necessary if the plaintiff, in good faith, alleges in his wrongful death action a medical malpractice theory of liability where expert testimony is unnecessary because the alleged act of negligence clearly lies within the range of the jury's common knowledge and experience.

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

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

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

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

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

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

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

CIRCUIT COURT OPINIONS

Certification of expert witness not obtained. - Parents failed to obtain a necessary certifying expert opinion as required; the acts of negligence alleged involved medical knowledge not within the range of the jury's common knowledge and experience, so a certifying expert opinion was necessary, and as a sanction, as the parents had sufficient time to prepare an appropriate expert certification and defendants had been prejudiced, the action was dismissed with prejudice. Susko v. Toor, 91 Va. Cir. 372, 2015 Va. Cir. LEXIS 169 (Norfolk Nov. 12, 2015).

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

§ 8.01-51. No action when deceased has compromised claim.

No action shall be maintained by the personal representative of one who, after injury, has compromised for such injury and accepted satisfaction therefor previous to his death.

(Code 1950, § 8-635; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 5C M.J. Death by Wrongful Act, § 7.

CASE NOTES

Compromise bars action. - If a man, having suffered a personal injury, compromises for such injury and accepts full satisfaction therefor, and afterwards dies from the effects of the injury, a question arises as to the right of his personal representative to maintain an action for death by wrongful act, neglect, or default. A former version of this section settled the question by providing that such action could not be maintained. This is the weight of authority and is supported by the better reasoning. Brammer's Adm'r v. Norfolk & W. Ry., 107 Va. 206 , 57 S.E. 593 (1907) (decided under prior law).

§ 8.01-52. Amount of damages.

The jury or the court, as the case may be, in any such action under § 8.01-50 may award such damages as to it may seem fair and just. The verdict or judgment of the court trying the case without a jury shall include, but may not be limited to, damages for the following:

Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent;
Compensation for reasonably expected loss of (i) income of the decedent and (ii) services, protection, care and assistance provided by the decedent;
Expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death;
Reasonable funeral expenses; and
Punitive damages may be recovered for willful or wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others.
Damages recoverable under 3, 4 and 5 above shall be specifically stated by the jury or the court, as the case may be. Damages recoverable under 3 and 4 above shall be apportioned among the creditors who rendered such services, as their respective interests may appear. Competent expert testimony shall be admissible in proving damages recoverable under 2 above.

The court shall apportion the costs of the action as it shall deem proper.

(Code 1950, § 8-636.1; 1974, c. 444; 1977, cc. 460, 617; 1982, c. 441.)

REVISERS' NOTE.

Former §§ 8-636.1 and 8-638 contain, inter alia, duplicate provisions as to beneficiaries, fail to denote when these beneficiaries are to be determined, and are unclear as to the specification of the damages. Sections 8.01-52 , 8.01-53 , and 8.01-54 amend and reorder the provisions of the former sections to present them more logically and to clarify the procedures.

Section 8.01-52 adopts former § 8-636.1 with several changes. The section expressly recognizes that the amount of damages may be awarded by the jury or by the court if the case is tried without a jury, and damages for medical and funeral expenses are required to be specifically stated. Provisions in former § 8-636.1 defining the class and beneficiaries have been deleted and incorporated into § 8.01-53 . A provision has been added providing that competent expert testimony is admissible regarding the proof of damages for loss of income, services, etc. of the decedent.

________

Cross references. - As to disclosure of homeowners insurance and personal injury liability insurance policy limits, see § 8.01-417.01 .

Editor's note. - Pursuant to § 30-152 and Acts 1977, c. 617, cl. 4, the Code Commission has given effect, in § 8.01-52 as set out above, to the amendment to former § 8-636.1, corresponding to this section, in Acts 1977, c. 460. The amendment added the second sentence of the next-to-last paragraph.

Law review. - For discussion of punitive damages and their possible application in automobile accident litigation, see 46 Va. L. Rev. 1036 (1960). For case note on the measure of damages for wrongful death of a minor child, see 18 Wash. & Lee L. Rev. 277 (1961). For note, "Wrongful Death Damages in Virginia," see 12 Wm. & Mary L. Rev. 396 (1970). For article on damages recoverable for wrongful death, see 5 U. Rich. L. Rev. 213 (1971). For survey of Virginia law on domestic relations for the year 1970-1971, see 57 Va. L. Rev. 1487 (1971). For survey of Virginia law on torts for the year 1971-1972, see 58 Va. L. Rev. 1349 (1972). For survey of Virginia law on torts for the year 1973-1974, see 60 Va. L. Rev. 1615 (1974). For survey of Virginia law on evidence for the year 1976-77, see 63 Va. L. Rev. 1428 (1977). For an overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981).

For article, "The 'Vanishing Trial': Arbitrating Wrongful Death," see 53 U. Rich. L. Rev. 1339 (2019).

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 114; 5C M.J. Damages, § 69; 5C M.J. Death by Wrongful Act, §§ 4, 6, 8, 11, 14 - 19.

CASE NOTES

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

I. DECISIONS UNDER CURRENT LAW.

A. GENERAL CONSIDERATION.

Construction of "fair" and "just." - As used in this section, the terms "fair" and "just" are to be given broad and liberal construction. Sawyer v. United States, 465 F. Supp. 282 (E.D. Va. 1978); Miltier v. Beorn, 696 F. Supp. 1086 (E.D. Va. 1988).

Purpose of damages specified. - The damages specified in this section as recoverable are designed to compensate the beneficiaries for the losses they suffer as a result of the decedent's death, and not to accumulate an estate for the decedent. O'Connor v. Several Unknown Correctional Officers, 523 F. Supp. 1345 (E.D. Va. 1981).

The only limit imposed on the amount of wrongful death damages is what may seem fair and just. Miltier v. Beorn, 696 F. Supp. 1086 (E.D. Va. 1988).

Section 8.01-25 defers to the wrongful death statute as the exclusive statement of the grievances that Virginia will recognize when a tort victim dies of her injuries. El-Meswari v. Washington Gas Light Co., 785 F.2d 483 (4th Cir. 1986).

Punitive damages provision not retroactive. - Allowing punitive damages in a wrongful death action constitutes a major change in both the effect and purpose of the Virginia Death by Wrongful Act statute. To retroactively apply such a significant change in the law without an explicit legislative directive would be to ignore an established rule of statutory construction as well as tampering with parties' vested rights and incurred obligations as they existed under the then existing law. Accordingly, the 1982 amendment to this section will not be given retroactive effect. Estate of Armentrout v. International Harvester Co., 547 F. Supp. 136 (W.D. Va. 1982).

Punitive damages. - Court erred by granting a physician's motion to strike evidence pertaining to a punitive damages claim because the jury reasonably could have determined that the physician was conscious of the risks associated with the long-term use of narcotic pain medication and the patient's increased risk of drug abuse and addiction and that the physician consciously disregarded those risks when the physician continued to prescribe the medication to the patient while not examining the patient for signs of abuse or addiction for a significant period of time. Curtis v. Highfill, 298 Va. 499 , 840 S.E.2d 321, 2020 Va. LEXIS 38 (2020).

Notwithstanding remedial aspects of such provision. - While a statute which alters procedures or supplies remedies for enforcing an existing right may be given retrospective effect, there must still be some indication that the legislature enacting the statutory change intends it be given such operation. The 1982 General Assembly has not indicated that it intended the amendment to operate retrospectively. Therefore, even if the amendment is considered remedial, the court will not apply it in cases arising prior to its effective date. Estate of Armentrout v. International Harvester Co., 547 F. Supp. 136 (W.D. Va. 1982).

1974 amendment did not allow punitive damages. - The 1974 amendment to former § 8-636.1 could only be interpreted to indicate the legislature's intent that the enumerated elements listed as recoverable damages were not meant to exclude other factors a jury could consider in arriving at compensation for the beneficiary's loss. It did not allow punitive damages. Estate of Armentrout v. International Harvester Co., 547 F. Supp. 136 (W.D. Va. 1982).

Dependency not prerequisite. - The damage provision of this statute requires proof of loss by the statutory beneficiary or beneficiaries. Dependency is not a prerequisite. Marshall v. Goughnour, 221 Va. 265 , 269 S.E.2d 801 (1980).

Beneficiary under the Virginia Wrongful Death Act need not be a dependent, nor a minor child. Wilson v. United States, 637 F. Supp. 669 (E.D. Va. 1986).

Award not intended to be replacement for loss sustained. - Under the broad language of this section, "any 'pecuniary loss' suffered by the statutory beneficiaries is clearly a proper element of damage," but loss of comfort, guidance and society, like sorrow, mental anguish and solace, are virtually incalculable except in a rough and gross manner. Money is no substitute, and under the statute the amount which may be awarded is what "may seem fair and just." Such an award is not suggested or intended to be replacement of the loss sustained. It is the means provided by which the damaging party may make some amends for the wrong done. Sawyer v. United States, 465 F. Supp. 282 (E.D. Va. 1978).

Damages determined from facts and circumstances. - Damages in a death case where the measure is what is fair and just, as in personal injury actions, are to be determined from all of the facts and circumstances. Sawyer v. United States, 465 F. Supp. 282 (E.D. Va. 1978).

Error to limit damages to funeral expenses. - A jury verdict for the exact amount of a decedent's funeral expenses was inadequate as a matter of law because it failed to compensate her statutory beneficiaries for any other items of damage; by returning a verdict for only the amount of the funeral expenses, the jury demonstrated a misunderstanding of either the law or the facts or both in that the evidence at trial clearly supported the conclusion that the decedent's statutory beneficiaries experienced sorrow, mental anguish and loss of solace as a result of the decedent's death. Rice v. Charles, 260 Va. 157 , 532 S.E.2d 318 (2000).

Determination of damages for loss of society. - Damages for loss of society can be left to turn mainly upon the good sense and deliberate judgment of the trier, as insistence on mathematical precision would be illusory, and the judge or jury must be allowed to make a reasonable approximation, guided by judgment and practical experience. It is enough if the evidence shows the extent of damages as a matter of a just and reasonable inference, although the result be only an approximation. Sawyer v. United States, 465 F. Supp. 282 (E.D. Va. 1978).

Economic and intangible damages awards to widows and children. - Estate of a U.S. AID worker who was a victim of the 1983 U.S. Embassy bombing in Beirut, Lebanon, made out a valid claim of wrongful death under Virginia law and was entitled to recover $3.101 million in economic damages for the benefit of his widow, who was also entitled to $2 million to compensate for the loss of services, protection, care, and assistance provided by the victim, as well as for her sorrow, mental anguish, and solace pursuant to § 8.01-52 . Each of the victim's children was entitled to $5 million for the loss of services, protection, care, and assistance provided by the victim, as well as for their sorrow, mental anguish, and solace. Dammarell v. Islamic Republic of Iran, 404 F. Supp. 2d 261, 2005 U.S. Dist. LEXIS 32618 (D.D.C. Dec. 14, 2005).

Damages recoverable for deprivation of decedent's civil rights. - A decedent's claims under 42 U.S.C. § 1983, based on violations of his civil rights which caused his death, survive him, and his duly qualified administratrix may be awarded compensatory and punitive damages for the deprivation if she succeeds on the merits of the case, since allowing the administratrix to obtain compensation only for whatever loss was suffered by statutory beneficiaries under the Virginia wrongful death statute and excluding a punitive award would be inconsistent with the compensatory and deterrent policies behind 42 U.S.C. § 1983. O'Connor v. Several Unknown Correctional Officers, 523 F. Supp. 1345 (E.D. Va. 1981).

Speculative nature of decedents' income. - The evidence as to reasonably expected loss of decedent's income was inadmissible as a matter of law as being too speculative where decedent had a mental age of nine and was a functional illiterate who could only write his name and decedent's only employment noted in the record continued for only eight weeks, during which time he lost six or seven days. Cassady v. Martin, 220 Va. 1093 , 266 S.E.2d 104 (1980).

No recovery by mother under this section for stillbirth. - Injury to an unborn child constitutes injury to the mother and she may recover for such physical injury and mental suffering associated with a stillbirth. She is not entitled, however, to damages ordinarily recoverable in a wrongful death action. For example, the mother may not recover for anticipated loss of the child's society, companionship, comfort, or guidance. She may not be compensated for an expected loss of income of the child or for services, protection, care, or assistance expected to be provided by the child had he lived. Modaber v. Kelley, 232 Va. 60 , 348 S.E.2d 233 (1986).

Expert testimony of grief excluded. - In a wrongful death action, the district court's decision to exclude a doctor's expert testimony, concluding that the jury could assess the mother's inner grief without expert guidance, represented a reasonable exercise of the trial judge's broad discretion under Federal Rule of Evidence 702 to determine that a proposed expert will not significantly assist the arbiter of fact. El-Meswari v. Washington Gas Light Co., 785 F.2d 483 (4th Cir. 1986).

Indirect physical injuries as illustration of mental anguish. - Although indirect physical injuries allegedly suffered by the mother as a result of her child's death are not compensable in themselves, the court might nevertheless admit the mother's proffered information to illustrate her claim of direct mental anguish. El-Meswari v. Washington Gas Light Co., 785 F.2d 483 (4th Cir. 1986).

Subdivision 1 does not authorize recovery for injury to the decedent's mother's heart or her miscarriage. The legislation addresses the decedent's death as an independent event in the mother's life and attempts to compensate the mother for the disruption of that single relationship. It claims no competence to trace or to relieve the indirect, although no doubt powerful, influence of the decedent's death as it touches all of her mother's future life. El-Meswari v. Washington Gas Light Co., 785 F.2d 483 (4th Cir. 1986).

Foreign burial. - The statutory guarantee of "reasonable funeral expenses" includes recovery for the foreign burial of a foreign citizen. El-Meswari v. Washington Gas Light Co., 785 F.2d 483 (4th Cir. 1986).

Admissibility of expectancy table in § 8.01-419 . - The expectancy of continued life of the decedent is relevant and necessary to establish the extent of loss for the decedent's society, companionship, comfort, guidance, advice, services, protection, care, and assistance set out in this section. The expectancy table in § 8.01-419 , therefore, is admissible if such items of loss are supported by the evidence. Graddy v. Hatchett, 233 Va. 65 , 353 S.E.2d 741 (1987).

Loss of society, companionship, etc. - This section now permits recovery for the beneficiaries' loss of society, companionship, comfort, guidance, advice, services, protection, care, and assistance provided by the decedent. These statutory elements contemplate assignment of a dollar value to these losses and recovery therefor whether or not the beneficiaries can establish their dependency on the decedent. Graddy v. Hatchett, 233 Va. 65 , 353 S.E.2d 741 (1987).

Special verdict relating to damages for solace, lost income, lost services, etc. - This section provides no authority for a special verdict relating to damages for solace, lost income, and lost services and protection. Johnson v. Smith, 241 Va. 396 , 403 S.E.2d 685 (1991).

Error in refusal to set aside verdict where no award for sorrow, mental anguish, etc. - In a wrongful death action where the decedent's widow and children were awarded nothing for sorrow, mental anguish and solace, and the children were awarded nothing for lost services and protection, the award by the jury rendered the entire verdict suspect and lead to the conclusion that the jury must have misconceived or misunderstood the facts or the law; hence, the trial court erred in refusing to set aside the verdict. Johnson v. Smith, 241 Va. 396 , 403 S.E.2d 685 (1991).

Evidence held to support recovery for society, companionship, comfort, guidance, advice, services, protection, care, and assistance of 17-year-old decedent who was survived by his parents, a younger brother, two older half-sisters, and two older half-brothers. Graddy v. Hatchett, 233 Va. 65 , 353 S.E.2d 741 (1987).

Burden for proving punitive damages. - Virginia law views skeptically the utility of punitive damages as a deterrent to anything less than willful misconduct. The resulting interpretation of subdivision 5 places two burdens upon a plaintiff who seeks to prove that a defendant acted "with such recklessness as evinces a conscious disregard for the safety of others." First, the plaintiff must show that the defendant intended all of the acts or omissions that created an extraordinary risk and that the defendant appreciated or had sufficient information to recognize the magnitude of the risk. Second, the plaintiff must show that the defendant responsible for such a risk responded to it with purposeful carelessness, deliberate inattention to known danger, or any intended violation or disregard of the rights of others. Punitive damages are available under this standard only if the plaintiff satisfies both requirements. El-Meswari v. Washington Gas Light Co., 785 F.2d 483 (4th Cir. 1986).

Negligence not amounting to conscious disregard precluded punitive damages. - Virginia law precluded an award of punitive damages in a claim, arising from a fatal traffic accident, against a lessee of a stalled truck on a highway, whose actions and omissions, while negligent and unlawful, did not amount to a conscious disregard of the rights of others. Peacock v. J.C. Penney Co., 764 F.2d 1012 (4th Cir. 1985).

Where a state court, in a wrongful death action under subdivision 5 of § 8.01-52 , made a clear judicial holding that the debtor's conduct in shooting the creditor's decedent was not reckless or willful, and thus did not justify an award of punitive damages, the bankruptcy court held that collateral estoppel barred the creditor from relitigating the issue of willfulness in the bankruptcy action, rendering the debt dischargeable under 11 U.S.C.S. § 523(a)(6). Cornejo v. Gotwalt (In re Gotwalt),, 2008 Bankr. LEXIS 1384 (Bankr. E.D. Va. May 1, 2008).

Applied in Hewitt v. Firestone Tire & Rubber Co., 490 F. Supp. 1358 (E.D. Va. 1980); Minnick v. United States, 767 F. Supp. 115 (E.D. Va. 1990); John Crane, Inc. v. Jones, 274 Va. 581 , 650 S.E.2d 851, 2007 Va. LEXIS 113 (2007).

B. REASONABLY EXPECTED LOSS.

"Reasonably expected" loss of decedent's income in subdivision 2 means such loss as the beneficiaries have suffered, or may suffer. Wilson v. United States, 637 F. Supp. 669 (E.D. Va. 1986).

The words "reasonably expected" in subdivision 2 of this section must clearly refer to the beneficiaries; assuredly, a decedent cannot "reasonably" expect the loss of earnings after she has passed away. Wilson v. United States, 637 F. Supp. 669 (E.D. Va. 1986).

Subdivision 2 makes no distinction between income lost prior to death and that which decedent would have probably earned over a normal work-life expectancy period. Wilson v. United States, 637 F. Supp. 669 (E.D. Va. 1986).

Decedent's son, who had dropped out of college and left the family home, showed no evidence of reasonable expectancy of pecuniary loss occasioned by his mother's death. Wilson v. United States, 637 F. Supp. 669 (E.D. Va. 1986).

Loss of daughter's earning capacity due to illness of parents and grandmother. - Where decedent was living when the daughter graduated from college in December, 1983, and the evidence showed that all expenses for the daughter's education had been paid by the parents, the loss due to defendants' negligence to the daughter between February, 1983, when she dropped out of college, until the mother's death in January, 1985, was essentially a loss of the daughter's earning capacity due to the fact that she could have secured employment but for the illness of her mother, father and grandmother. Adopting the "fair and just" rule as being entitled to a broad and liberal construction, the court would fix this figure at $5,000 confined to the mother's illness and the daughter's reasonable expectancy that, had her mother been in reasonably good health, the mother would have cared for her father and grandmother. Wilson v. United States, 637 F. Supp. 669 (E.D. Va. 1986).

Plans of recent graduate. - In a wrongful death suit, evidence of declarations made by the deceased, an 18-year-old high school graduate, which indicated that he planned to become an architect and thereafter to send his younger, fatherless brother to medical school and to provide his widowed mother a new home, was rejected on the ground that it was too speculative. Howell v. Cahoon, 236 Va. 3 , 372 S.E.2d 363 (1988).

II. DECISIONS UNDER PRIOR LAW.

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

The Supreme Court has given the phrase "fair and just" a broad and liberal construction. This section contains no words of limitation confining the jury to merely pecuniary damages. Matthews v. Hicks, 197 Va. 112 , 87 S.E.2d 629 (1955); Gough v. Shaner, 197 Va. 572 , 90 S.E.2d 171 (1955).

The phrase "fair and just" in this section, relating to the amount and distribution of damages in a case of an award for wrongful death, should be given a broad and liberal construction. Eisenhower v. Jeter, 205 Va. 159 , 135 S.E.2d 786 (1964).

What losses to be considered. - Among the losses to be considered under this section are the loss of services, nurture and care, and other advantages and benefits of a pecuniary nature which probably will be lost in the future. Vandergrift v. United States, 500 F. Supp. 229 (E.D. Va. 1978).

Damages which to the jury "may seem fair and just" are the damages suffered by the statutory beneficiaries. Wilson v. Whittaker, 207 Va. 1032 , 154 S.E.2d 124 (1967).

Damages are not confined to pecuniary loss. - In an action the jury, in assessing the damages, are not confined to the mere pecuniary loss and injury, but may give such damages as to them "may seem fair and just." Matthews v. Warner, 70 Va. (29 Gratt.) 570 (1877); Ratcliffe v. McDonald's Adm'r, 123 Va. 781 , 97 S.E. 307 (1918); Matthews v. Hicks, 197 Va. 112 , 87 S.E.2d 629 (1955).

Under this section, the measure of damages in case of a man's death is not limited to the pecuniary value of his life to his estate, but may be exemplary, punitive, and given as a solatium. Harris v. Royer, 165 Va. 461 , 182 S.E. 276 (1935).

In an action under this section, the evidence would primarily relate to and the damages be not only for the pecuniary loss the wife, husband, parent, or child has sustained, but it would be proper for the jury, in computing damages, to take also into consideration the grief and mental anguish of such relatives, and their loss in being deprived of the care, attention, and society of deceased, and to include in the verdict such sum as the jury deem fair and just. Anderson v. Hygeia Hotel Co., 92 Va. 687 , 24 S.E. 269 (1896).

But it is a proper element. - This section allows the jury to award within the statutory limit such damages "as to it may seem fair and just." Under this broad and permissive language, any "pecuniary loss" suffered by the statutory beneficiaries is clearly a proper element of damage. Gough v. Shaner, 197 Va. 572 , 90 S.E.2d 171 (1955).

No pecuniary loss necessary. - It is not necessary that a child have earned money or have a present earning capacity for his statutory beneficiaries to suffer pecuniary loss because of his death. Gough v. Shaner, 197 Va. 572 , 90 S.E.2d 171 (1955).

Recovery of pecuniary loss. - Any pecuniary loss suffered by the statutory beneficiaries is clearly a proper element of damage. See Vandergrift v. United States, 500 F. Supp. 229 (E.D. Va. 1978).

Recovery for mental anguish of beneficiaries, but not of decedent. - In this action given by the statute, the plaintiff cannot recover for the physical pain and mental anguish of the decedent. The mental anguish of the beneficiaries may be increased by the mental and physical suffering of the decedent and they may recover damages therefor, but it is their mental anguish and not the physical pain and mental anguish of the decedent for which recovery is allowed. Virginia Iron, Coal & Coke Co. v. Odle's Adm'r, 128 Va. 280 , 105 S.E. 107 (1920).

Evidence of the pecuniary condition of the deceased and the members of his family is inadmissible for the purpose of proving the liability of the defendant or the quantum of the damages because this section gives a right of recovery regardless of whether the deceased or the members of his family are rich or poor. Crawford v. Hite, 176 Va. 69 , 10 S.E.2d 561 (1940); Matthews v. Hicks, 197 Va. 112 , 87 S.E.2d 629 (1955).

Absent evidence of contribution or the monetary value of services rendered a dependent, there can be no award for loss of services. Vandergrift v. United States, 500 F. Supp. 229 (E.D. Va. 1978).

The amount of recovery is left entirely to the discretion of the jury. Ratcliffe v. McDonald's Adm'r, 123 Va. 781 , 97 S.E. 307 (1918); Harris v. Royer, 165 Va. 461 , 182 S.E. 276 (1935); Chick Transit Corp. v. Edenton, 170 Va. 361 , 196 S.E. 648 (1938).

The amount of damages is solely within the discretion of the jury and may not be set aside as inadequate or excessive, unless it is clearly shown that the verdict was a result of passion, prejudice, or corruption. Matthews v. Hicks, 197 Va. 112 , 87 S.E.2d 629 (1955).

Where evidence showed that when decedent was killed, he was a normal, well developed, thirteen-year-old school boy, enjoying good health and of average intelligence, those proved facts were sufficient to justify an instruction allowing the jury to find that "pecuniary loss" was suffered by his statutory beneficiaries. In doing so the jurors had the right on that evidence to form their own conclusion as to what was decedent's probable life expectancy and consider what they, in their sound judgment, thought would be his probable earnings in the future. Gough v. Shaner, 197 Va. 572 , 90 S.E.2d 171 (1955).

Measure of damages. - Damages may be for loss of deceased's care, attention and society, as well as such sum as the jury may deem fair and just as a solatium to the beneficiaries for their sorrow and mental anguish caused by the death. Wilson v. Whittaker, 207 Va. 1032 , 154 S.E.2d 124 (1967).

Facts and circumstances are to be considered. - Fixing damages in a death case where the measure is what is fair and just is to be determined from all of the facts and circumstances. Vandergrift v. United States, 500 F. Supp. 229 (E.D. Va. 1978).

Determination of damages for loss of society. - Damages for loss of society can be left to turn mainly upon the good sense and deliberate judgment of the trier, as insistence on mathematical precision would be illusory, and the judge or jury must be allowed to make a reasonable approximation, guided by judgment and practical experience. It is enough if the evidence shows the extent of damages as a matter of a just and reasonable inference, although the result be only an approximation. Vandergrift v. United States, 500 F. Supp. 229 (E.D. Va. 1978).

Award not reduced by amounts otherwise paid. - The theory that the award under this section, being for the full amount of damages, should be reduced by any amounts otherwise paid by the government to the injured parties, simply has no application in Virginia when the damages are found to exceed the former statutory maximum awardable. Harris v. United States, 218 F. Supp. 785 (E.D. Va. 1963).

It is not necessary to prove life expectancy of decedent by mortality tables. - In an action for wrongful death in this jurisdiction, it is not essential to prove the expectation of the life of the decedent by mortality tables. Eisenhower v. Jeter, 205 Va. 159 , 135 S.E.2d 786 (1964).

Daughter's work-life earning capacity. - Only in compelling circumstances is it likely that earnings of a daughter may be expected to be applied substantially to the maintenance and support of her brothers and of her mother. Mullins v. Seals, 562 F.2d 326 (4th Cir. 1977).

Evidence regarding a daughter's work-life earning capacity was irrelevant in an action for wrongful death where there was no basis for a finding that the daughter would have made any substantial financial contribution to her family if she had lived. Mullins v. Seals, 562 F.2d 326 (4th Cir. 1977).

Loss of services not recoverable as solace. - Loss of a decedent wife's services, which were pecuniary losses, were not recoverable as solace. Pugh v. Yearout, 212 Va. 591 , 186 S.E.2d 58 (1972).

Record should show nature of services. - Where the record does not show the nature of the services rendered by the decedent the jury has no basis for awarding damages for loss of services. Claar v. Culpepper, 212 Va. 771 , 188 S.E.2d 86 (1972).

A jury verdict assessing damages for wrongful death is final and the Supreme Court has no authority to disturb it. Highway Express Lines v. Fleming, 185 Va. 666 , 40 S.E.2d 294 (1946). See also Cooke v. Griggs, 183 Va. 851 , 33 S.E.2d 764 (1944).

Instruction as to elements and quantum of damages. - In instructing on the elements and quantum of damages allowable under the broad and liberal language of this section, the court rightly told the jury that they might find in a sum not exceeding $25,000, and in ascertaining damages, take into consideration (among other enumerated things) the loss of decedent's "care, attention and society to his wife and to each of his five children," and also take into consideration and award such additional sum as they might "deem fair and just by way of solace and comfort to his wife and five children for the sorrow, suffering and mental anguish occasioned to each of them by his death." Basham v. Terry, 199 Va. 817 , 102 S.E.2d 285 (1958), commented on in 16 Wash. & Lee L. Rev. 97 (1959).

There was no error in an instruction which told the jury that in the event they found for plaintiff they could assess such damages as they deemed fair and just under all the circumstances of the case. Norfolk S. Ry. v. Wood, 182 Va. 30 , 28 S.E.2d 15 (1943).

Evidence that deceased was receiving social security payments. - In an action for death by wrongful act there was no error in admitting evidence that decedent at the time of his death was receiving stated monthly social security payments. Jessee v. Slate, 196 Va. 1074 , 86 S.E.2d 821 (1955).

CIRCUIT COURT OPINIONS

Damage award does not shock the court's conscience. - Although the manufacturer's post-trial filings raised the question of whether the jury's decision to allocate $1 million to a 4-year-old boy's baby brother was insupportable, a $2 million compensatory damage award for the boy's wrongful death did not shock the court's conscience; it was in no way disproportionate to the loss suffered. Simmons v. MTD Prods., 75 Va. Cir. 63, 2008 Va. Cir. LEXIS 224 (Roanoke Feb. 29, 2008).

Who can be compensated. - Argument that only the natural mother could be damaged and compensated under § 8.01-52 was rejected as contrary to the statutorily defined role of an unborn fetus' representative to distribute damages. Justin Benjamin Velvin v. Tabb, 96 Va. Cir. 208, 2017 Va. Cir. LEXIS 120 (Petersburg July 31, 2017).

Natural mother is but one member of the class of beneficiaries described in § 8.01-53 , so the Circuit Court of the City of Petersburg, Virginia, finds no language in § 8.01-52 or § 8.01-53 limiting damages or compensation to only the natural mother. Justin Benjamin Velvin v. Tabb, 96 Va. Cir. 208, 2017 Va. Cir. LEXIS 120 (Petersburg July 31, 2017).

Jury's discretion. - Jury's allocation of damages is a subject about which criticism from the parties will not be heard, and in allocating among members of the same class, the jury's discretion is absolute. Simmons v. MTD Prods., 75 Va. Cir. 63, 2008 Va. Cir. LEXIS 224 (Roanoke Feb. 29, 2008).

Claim barred. - Mother's claim for economic damages against health care providers was barred by a two-year statute of limitations period and was distinct from the mother's claims of loss of the child's services. Delk v. Edens, 56 Va. Cir. 518, 2001 Va. Cir. LEXIS 322 (Newport News 2001).

Insurer was granted summary judgment because § 8.01-52 did not allow for any damages that were covered by the decedent's insurance policy. The court found that the policy did not provide coverage for the sorrow, mental anguish, and solace damages that were provided by § 8.01-52 and claimed by the claimant. Southern Ins. Co. v. Somerville, 70 Va. Cir. 326, 2006 Va. Cir. LEXIS 64 (Orange County 2006).

Evidence of pain and suffering. - Because the decedent's beneficiaries could show evidence of their mental anguish through evidence of the decedent's pain and suffering, exclusion of that evidence was inappropriate. Sciortino v. Piccioni, 88 Va. Cir. 106, 2014 Va. Cir. LEXIS 71 (Norfolk Mar. 20, 2014).

§ 8.01-52.1. Admissibility of expressions of sympathy.

In any wrongful death action brought pursuant to § 8.01-50 against a health care provider, or in any arbitration or medical malpractice review panel proceeding related to such wrongful death action, the portion of statements, writings, affirmations, benevolent conduct, or benevolent gestures expressing sympathy, commiseration, condolence, compassion, or a general sense of benevolence, together with apologies that are made by a health care provider or an agent of a health care provider to a relative of the patient, or a representative of the patient about the death of the patient as a result of the unanticipated outcome of health care, shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest. A statement of fault that is part of or in addition to any of the above shall not be made inadmissible by this section.

For purposes of this section, unless the context otherwise requires:

"Health care" has the same definition as provided in § 8.01-581.1 .

"Health care provider" has the same definition as provided in § 8.01-581.1 .

"Relative" means a decedent's spouse, parent, grandparent, stepfather, stepmother, child, grandchild, brother, sister, half-brother, half-sister, or spouse's parents. In addition, "relative" includes any person who had a family-type relationship with the decedent.

"Representative" means a legal guardian, attorney, person designated to make decisions on behalf of a patient under a medical power of attorney, or any person recognized in law or custom as a patient's agent.

"Unanticipated outcome" means the outcome of the delivery of health care that differs from an expected result.

(2005, cc. 649, 692; 2009, c. 414.)

The 2009 amendments. - The 2009 amendment by c. 414 substituted "commiseration, condolence, compassion, or a general sense of benevolence, together with apologies that" for "or general sense of benevolence, which" in the first sentence of the first paragraph.

For annual survey article, "Health Care Law," see 44 U. Rich. L. Rev. 473 (2009).

§ 8.01-53. Class and beneficiaries; when determined.

The damages awarded pursuant to § 8.01-52 shall be distributed as specified under § 8.01-54 to (i) the surviving spouse, children of the deceased and children of any deceased child of the deceased, and, only if there is a surviving spouse, children of the deceased, or children of any deceased child of the deceased, the parents of the decedent if any of such parents, within 12 months prior to the decedent's death, regularly received support or regularly received services from the decedent for necessaries, including living expenses, food, shelter, health care expenses, or in-home assistance or care, or (ii) if there is no surviving spouse, children of the deceased, or children of any deceased child of the deceased, then to the parents, brothers and sisters of the deceased, and to any other relative who is primarily dependent on the decedent for support or services and is also a member of the same household as the decedent or (iii) if the decedent has left both surviving spouse and parent or parents, but no child or grandchild, the award shall be distributed to the surviving spouse and such parent or parents or (iv) if there are survivors under clause (i) or clause (iii), the award shall be distributed to those beneficiaries and to any other relative who is primarily dependent on the decedent for support or services and is also a member of the same household as the decedent or (v) if no survivors exist under clause (i), (ii), (iii), or (iv), the award shall be distributed in the course of descents as provided for in § 64.2-200 . Provided, however, no parent whose parental rights and responsibilities have been terminated by a court of competent jurisdiction or pursuant to a permanent entrustment agreement with a child welfare agency shall be eligible as a beneficiary under this section. For purposes of this section, a relative is any person related to the decedent by blood, marriage, or adoption and also includes a stepchild of the decedent.
The class and beneficiaries thereof eligible to receive such distribution shall be fixed (i) at the time the verdict is entered if the jury makes the specification, or (ii) at the time the judgment is rendered if the court specifies the distribution.
A beneficiary may renounce his interest in any claim brought pursuant to § 8.01-50 and, in such event, the damages shall be distributed to the beneficiaries in the same class as the renouncing beneficiary or, if there are none, to the beneficiaries in any subsequent class in the order of priority set forth in subsection A. (Code 1950, §§ 8-636.1, 8-638; 1954, c. 333; 1973, c. 401; 1974, c. 444; 1977, cc. 460, 617; 1979, c. 356; 1992, c. 74; 1994, c. 515; 2003, c. 632; 2019, cc. 47, 328; 2021, Sp. Sess. I, c. 488.)

REVISERS' NOTE.

Subsection 8.01-53 A (i) and (ii), similar to former §§ 8-636.1 and 8-638, defines the class and beneficiaries to receive the damages awarded and states when they are to be determined.

Subsection A (iii) is the final proviso of former § 8-638 with one exception. By referring to "parent," the former section included as beneficiaries within the third class only the mother or father of the decedent and not both. By referring to "parent or parents," the third class now includes as beneficiaries both living parents or either surviving one.

Subsection B sets the time when the class and beneficiaries who may receive the awarded damages will be fixed. This proposal codifies case law. See e.g., Baltimore & O.R.R. v. Wightman's Adm'r, 70 Va. (29 Gratt.) 431 (1877), rev'd on other grounds, 104 U.S. 5, 26 L. Ed. 643 (1881); Johns v. Blue Ridge Transf. Co., 199 Va. 63 , 97 S.E.2d 723 (1957).

________

Cross references. - As to when inventory and settlement not required of personal representative, see § 64.2-1301 .

Editor's note. - At the direction of the Virginia Code Commission, the reference to " § 64.1-1" was changed to " § 64.2-200 " to conform to the recodification of Title 64.1 by Acts 2012, c. 614, effective October 1, 2012.

Acts 2019, cc. 47 and 328, cl. 2 provides: "That the provisions of this act shall apply only to causes of action arising on or after July 1, 2019."

The 2003 amendments. - The 2003 amendment by c. 632 inserted "or (v) if no survivors exist under clause (i), (ii), (iii), or (iv), the award shall be distributed in the course of descents as provided for in § 64.1-1" in subsection A.

The 2019 amendments by cc. 47 and 328 are identical, and inserted "and the parents of the decedent if any of such parents, within 12 months prior to the decedent's death, regularly received support or regularly received services from the decedent for necessaries, including living expenses, food, shelter, health care expenses, or in-home assistance or care" in clause (i) of subsection A. For applicability, see Editor's note.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 488, effective July 1, 2021, in subsection A, inserted "only if there is a surviving spouse, children of the deceased, or children of any deceased child of the deceased" and substituted "is no surviving spouse, children of the deceased, or children of any deceased child of the deceased" for "be none such."

Law review. - For survey of Virginia law on evidence for the year 1976-77, see 63 Va. L. Rev. 1428 (1977). For an overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981).

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

For survey article on the law pertaining to wills, trusts, and estates, see 38 U. Rich. L. Rev. 267 (2003).

For article on 2007 and 2008 legislative and judicial developments in the areas of wills, trusts, and estates, see 43 U. Rich. L. Rev. 435 (2008).

Michie's Jurisprudence. - For related discussion, see 5C M.J. Death by Wrongful Act, §§ 4, 6, 8, 10, 11, 15, 17, 18; 7B M.J. Evidence, § 203.

CASE NOTES

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

I. DECISIONS UNDER CURRENT LAW.

The classes of beneficiaries named in the statute are exclusive; a court is not at liberty to consider additional or alternative beneficiaries. Hewitt v. Firestone Tire & Rubber Co., 490 F. Supp. 1358 (E.D. Va. 1980).

Determination of eligible beneficiary. - Under subsection B of this section, any person included among the pertinent categories of beneficiaries specified in subsection A at the time the jury's verdict is entered is a beneficiary eligible to receive a distribution. Mann v. Hinton, 249 Va. 555 , 457 S.E.2d 22 (1995).

Beneficiaries under this section distinguished from general beneficiaries. - Virginia makes a careful distinction between beneficiaries under this section and the general beneficiaries of the decedent's estate. Miltier v. Beorn, 696 F. Supp. 1086 (E.D. Va. 1988).

Personal representative merely surrogate for beneficiaries. - Section 8.01-50 (B) vests the right of action in the decedent's personal representative. The right of action, however, is not a right to enforce a cause of action personal to the personal representative. As the party-plaintiff, he is merely a surrogate for the beneficiaries of the cause of action named in this section. Horn v. Abernathy, 231 Va. 228 , 343 S.E.2d 318 (1986).

Because an administrator could only prosecute a wrongful death action on behalf of the beneficiaries identified in § 8.01-53 , the administrator was not entitled to file the action pro se; therefore, in the absence of a valid motion for judgment, there were no pleadings that could be amended. Kone v. Wilson, 272 Va. 59 , 630 S.E.2d 744, 2006 Va. LEXIS 70 (2006).

Recovery on behalf of widow and children. - Estate of a U.S. AID worker who was killed in the 1983 U.S. Embassy bombing in Beirut, Lebanon, was the proper plaintiff to bring a wrongful death action against defendants, the Islamic Republic of Iran and its Ministry of Intelligence and Security, and any recovery was for the benefit of the decedent's surviving spouse and children. Dammarell v. Islamic Republic of Iran, 404 F. Supp. 2d 261, 2005 U.S. Dist. LEXIS 32618 (D.D.C. Dec. 14, 2005).

Issue of paternity of beneficiary in a wrongful death suit was one for resolution by the jury. Cassady v. Martin, 220 Va. 1093 , 266 S.E.2d 104 (1980).

Standard of proof of paternity. - Absent the presumption of legitimacy which attaches to a child born in wedlock, the standard of proof of paternity in a wrongful death case is proof by a preponderance of the evidence. Smith v. Givens, 223 Va. 455 , 290 S.E.2d 844 (1982).

When hearsay evidence of paternity admissible. - For purposes of the pedigree exception to the hearsay rule, the decedent in a wrongful death action is a member of the family or related to the family, whose history the decedent's declaration of paternity concerns, viz., the family composed of those named as beneficiaries in this section; thus, hearsay evidence of the decedent's declarations is admissible in such a case, provided no other better evidence can be obtained. Smith v. Givens, 223 Va. 455 , 290 S.E.2d 844 (1982).

Hearsay evidence of paternity precluded where mother's testimony available. - In wrongful death case, where alleged illegitimate child of decedent, under the provisions of § 8.01-411 et seq. and Indiana law, could have taken his mother's deposition in Indiana and, in compliance with Supreme Court Rule 4:7(a)(4), introduced her testimony as direct evidence in support of his claim, the pedigree exception did not apply and the trial court erred in admitting hearsay evidence of decedent's paternity. Smith v. Givens, 223 Va. 455 , 290 S.E.2d 844 (1982).

Where the first wife fails to rebut the presumption favoring the last marriage because the evidence does not show that divorce records were searched in other places where the deceased had resided, or could have resided, the second spouse will be held to be the surviving spouse, and thus a beneficiary pursuant to this section. Hewitt v. Firestone Tire & Rubber Co., 490 F. Supp. 1358 (E.D. Va. 1980).

The term "children," as used in this section, does not include unadopted stepchildren. Brown v. Brown, 226 Va. 320 , 309 S.E.2d 586 (1983), cert. denied, 467 U.S. 1242, 104 S. Ct. 3513, 82 L. Ed. 2d 821 (1984).

Adopted child as beneficiary. - Where an infant is adopted by the parents of the deceased after the death of the deceased but before damages were awarded for wrongful death of decedent, the adopted infant falls within the class of beneficiaries delineated in this section. Knodel v. Dickerman, 246 Va. 124 , 431 S.E.2d 323 (1993).

Administratrix may recover for deprivation of decedent's civil rights. - A decedent's claims under 42 U.S.C. § 1983, based on violations of his civil rights which caused his death, survive him, and his duly qualified administratrix may be awarded compensatory and punitive damages for the deprivation if she succeeds on the merits of the case, since allowing the administratrix to obtain compensation only for whatever loss was suffered by statutory beneficiaries under the Virginia wrongful death statute and excluding a punitive award would be inconsistent with the compensatory and deterrent policies behind 42 U.S.C. § 1983. O'Connor v. Several Unknown Correctional Officers, 523 F. Supp. 1345 (E.D. Va. 1981).

Distributees of shipyard worker determined under this section, not federal admiralty law. - Virginia's wrongful death statute, not federal admiralty law, was applicable in determining who was entitled to share in distribution of a settlement award, where the decedent was a shipyard worker killed while engaged in the repair of a barge in Norfolk. There is no federal cause of action for the death of nonseamen in state territorial waters occasioned by negligence. Therefore, the cause of action was cognizable only under Virginia law, and admiralty law could not be relied on to establish who was a distributee. Brown v. Brown, 226 Va. 320 , 309 S.E.2d 586 (1983), cert. denied, 467 U.S. 1242, 104 S. Ct. 3513, 82 L. Ed. 2d 821 (1984).

Unrelated woman living with decedent. - In an action for the wrongful death of a ship repair yard worker, a woman who was unrelated to the decedent through blood or marriage, but who had lived with the decedent for several years and had received some support from the decedent, was not entitled to any recovery under this section. Ford v. American Original Corp., 475 F. Supp. 10 (E.D. Va. 1979), cert. denied, 467 U.S. 1242, 104 S. Ct. 3513, 82 L. Ed. 2d 821 (1984).

Matter of law determination of relative status. - Only when the facts and circumstances are such that reasonable persons could not differ should the trial court decide as a matter of law whether a decedent's relative is a "dependent" or "member of the same household." Mann v. Hinton, 249 Va. 555 , 457 S.E.2d 22 (1995).

Applied in Alderman v. Chrysler Corp., 480 F. Supp. 600 (E.D. Va. 1979); In re Tignor, 21 Bankr. 219 (Bankr. E.D. Va. 1982); Brake v. Payne, 268 Va. 92 , 597 S.E.2d 59, 2004 Va. LEXIS 101 (2004).

II. DECISIONS UNDER PRIOR LAW.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

Object of statute. - The primary object of this statute is to compensate the family of the deceased. Richmond, F. & P.R.R. v. Martin's Adm'r, 102 Va. 201 , 45 S.E. 894 (1903).

An action for wrongful death is not for the benefit of the decedent's estate, but for certain near relatives. Conrad v. Thompson, 195 Va. 714 , 80 S.E.2d 561 (1954).

The purpose of the wrongful death statute is not to allow damages solely to those who might look to decedent for support. Statutory beneficiaries who may have had no reasonable expectance of support from the decedent may recover for loss of care, attention and society, as well as for suffering and mental anguish caused them by his death. Wolfe v. Lockhart, 195 Va. 479 , 78 S.E.2d 654 (1953); Wilson v. Whittaker, 207 Va. 1032 , 154 S.E.2d 124 (1967).

In a wrongful death action the suit was prosecuted on behalf of the siblings of the decedent and was not for the benefit of the minor decedent's general estate. Taylor v. Anderson, 303 F.2d 546 (4th Cir. 1962).

The primary object of the wrongful death statute, like its prototype, Lord Campbell's Act, is to compensate the family of the deceased and not to benefit his creditors. Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620 (1971).

Object of article and Federal Death Act the same. - While the persons who were designated as beneficiaries under the Federal Death Act and the Virginia Wrongful Death Act are not described in identical language, the primary object of the two legislative acts is the same. Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620 (1971).

The classes of beneficiaries described in the statute are exclusive, and other classes or persons cannot be added by judicial construction. Porter v. VEPCO, 183 Va. 108 , 31 S.E.2d 337 (1944); Matthews v. Hicks, 197 Va. 112 , 87 S.E.2d 629 (1955).

This section controls over statute of descents and distribution. - If the distributees named in the statute of descents and distribution are different from the persons entitled to the proceeds named in this section, the provisions of the latter control. Withrow v. Edwards, 181 Va. 344 , 25 S.E.2d 343, rev'd on other grounds, 181 Va. 592 , 25 S.E.2d 899, cert. denied, 320 U.S. 761, 64 S. Ct. 70, 88 L. Ed. 453 (1943); Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620 (1971).

Punishment of wrongdoer not intended. - The right of action for damages for personal injuries expires upon the death of the injured person. The death by wrongful act statute does not cause to survive this right of action, but it creates in the decedent's personal representative a new right of action to compensate decedent's statutory beneficiaries for their loss. Its purpose was not to punish the wrongdoer. Wilson v. Whittaker, 207 Va. 1032 , 154 S.E.2d 124 (1967).

Manner of awarding damages. - Unlike a personal estate passing under the intestate law, which is a fund to be distributed equally among members of the same class, damages in wrongful death actions should be awarded individually and separately to the statutory beneficiaries according to their respective damages. Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620 (1971).

Beneficiaries within designated class may receive whole or any part of recovery. - Even though a minor son has certain rights of possible participation under the death statute, it remained within the discretion of the jury or the court hearing the case without a jury to direct in what proportion the damages should be distributed to the surviving widow and/or child, and it is clear from this section that beneficiaries within the designated class may receive the whole or any part of the recovery. Holley v. The Manfred Stansfield, 186 F. Supp. 805 (E.D. Va. 1960).

Death of class beneficiaries does not terminate cause of action. - The death of class beneficiaries before recovery does not terminate the cause of action. Johns v. Blue Ridge Transf. Co., 199 Va. 63 , 97 S.E.2d 723 (1957).

Under this section brothers and sisters of the half blood fall within the same class as parents of a decedent and may participate in the damages awarded if the jury or court, as the case may be, shall elect to so specify. Wolfe v. Lockhart, 195 Va. 479 , 78 S.E.2d 654 (1953).

The right of the "widowed mother" of the decedent is not based on dependence. Waters v. Harrell, 183 Va. 764 , 33 S.E.2d 194 (1945).

And the widowed mother's remarriage is no bar. - The "widowed mother's" remarriage has nothing to do with the rights of persons whom the statute undertakes to benefit, in the absence of an express provision of law affecting such rights. If the legislature had intended the right which they have to the "widowed mother" to abate upon remarriage, it could easily have said so by adding appropriate words. Waters v. Harrell, 183 Va. 764 , 33 S.E.2d 194 (1945).

A surviving spouse, who has deserted the decedent and lived in adultery, is not barred from sharing in damages for wrongful death. Matthews v. Hicks, 197 Va. 112 , 87 S.E.2d 629 (1955).

A person who claims to be a decedent's child has the burden of proving that the decedent was his parent. Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620 (1971).

A child of a bigamous marriage was entitled to participate under the Wrongful Death Act by virtue of former § 64.1-7. Grove v. United States, 170 F. Supp. 176 (E.D. Va.), aff'd sub nom. Grove v. Metropolitan Life Ins. Co., 271 F.2d 918 (4th Cir. 1959).

"Children" includes illegitimate children. - The term "children," as used in this section, and irrespective of any constitutional consideration, includes illegitimate children. Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620 (1971).

The word "children" as used in this section includes the illegitimate child of a father whose death gives rise to a wrongful death action. Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620 (1971).

An illegitimate child is made a beneficiary and entitled to share in the recovery under the Virginia wrongful death statute. Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620 (1971).

But damages awarded such child should not reduce award to wife or other children. - Except as limited by the maximum amount of recovery, an award of damages to an illegitimate child should not reduce the damages awarded to a wife or other children of the decedent. Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620 (1971).

An illegitimate child who has had little or no connection with his father cannot prove damage from the loss of his father's care, attention and society, or any sorrow and mental anguish. Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620 (1971).

Nature of recovery. - An illegitimate child who had been a member of decedent's family since birth suffered a substantial loss in the death of her father. He had bestowed upon her a father's love, care and affection, and he had maintained and supported her. The recovery obtained was in compensation for these losses. Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620 (1971).

Illegitimate child as sole member of first class. - Since illegitimate children are included under the Wrongful Death Act, an illegitimate child who is the sole member of the first class of beneficiaries, but who has sustained no damage, will unjustly preclude any award to a decedent's parents and more remote kindred who have sustained damages. But the existence of an unworthy legitimate child who has sustained no damage likewise precludes any award to a decedent's parents or more remote kindred who have sustained damages. Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620 (1971).

A resident alien widow, residing in another state, may maintain on behalf of herself and children an action for the wrongful death of her husband. Pocahontas Collieries Co. v. Rukas, 104 Va. 278 , 51 S.E. 449 (1905).

Contributory negligence of one beneficiary does not bar whole recovery. - The contributory negligence of a beneficiary bars his recovery. However, under this section it is the duty of the jury to specify the amount, or proportion, of the recovery to be received by each of the beneficiaries and the contributory negligence of one party only defeats recovery so far as he is concerned. City of Danville v. Howard, 156 Va. 32 , 157 S.E. 733 (1931).

Distribution of fund recovered for tortious killing. - Any distribution of the fund recovered for a tortious killing committed in this State must be in accordance with the wrongful death statute creating the right of action. Carroll v. Sneed, 211 Va. 640 , 179 S.E.2d 620 (1971).

Jury entitled to know age and physical condition of beneficiaries. - This section places upon the jury the duty of apportioning the damages among the designated beneficiaries. In order that such apportionment may be intelligently made the jury is entitled to know the physical condition, the health, and the ages of the respective persons who may under the statute share in the proceeds of the recovery. Crawford v. Hite, 176 Va. 69 , 10 S.E.2d 561 (1940). See Matthews v. Hicks, 197 Va. 112 , 87 S.E.2d 629 (1955).

Disclaimer of right to participate in award does not prevent estoppel by judgment. - The father of the decedent in a wrongful death action could not, by disclaiming his statutory right under this section to participate in the unlawful death award, effectively avoid the estoppel created by a final determination for the defendant in a state court which would otherwise bar his subsequent personal action against the same defendant. Taylor v. Anderson, 303 F.2d 546 (4th Cir. 1962).

CIRCUIT COURT OPINIONS

Who can be compensated. - Natural mother is but one member of the class of beneficiaries described in § 8.01-53 , so the Circuit Court of the City of Petersburg, Virginia, finds no language in § 8.01-52 or § 8.01-53 limiting damages or compensation to only the natural mother. Justin Benjamin Velvin v. Tabb, 96 Va. Cir. 208, 2017 Va. Cir. LEXIS 120 (Petersburg July 31, 2017).

Damage award to baby brother. - Although the manufacturer's post-trial filings raised the question of whether the jury's decision to allocate $1 million to a 4-year-old boy's baby brother was insupportable, a $2 million compensatory damage award for the boy's wrongful death did not shock the court's conscience; it was in no way disproportionate to the loss suffered. Simmons v. MTD Prods., 75 Va. Cir. 63, 2008 Va. Cir. LEXIS 224 (Roanoke Feb. 29, 2008).

§ 8.01-54. Judgment to distribute recovery when verdict fails to do so.

The verdict may and the judgment of the court shall in all cases specify the amount or the proportion to be received by each of the beneficiaries, if there be any. No verdict shall be set aside for failure to make such specification.
If either party shall so request the case shall be submitted to the jury with instructions to specify the distribution of the award, if any. If the jury be unable to agree upon or fail to make such distribution, the court shall specify the distribution and enter judgment accordingly. For the purpose of distribution the court may hear additional evidence.
The amount recovered in any such action shall be paid to the personal representative who shall first pay the costs and reasonable attorney's fees and then distribute the amount specifically allocated to the payment of hospital, medical, and funeral expenses. The remainder of the amount recovered shall thereafter be distributed by the personal representative, as specified in subsections A and B above, to the beneficiaries set forth in § 8.01-53 ; provided that any distribution made to any such beneficiaries shall be free from all debts and liabilities of the decedent. If there be no such beneficiaries, the amount so recovered shall be assets in the hands of the personal representative to be disposed of according to law. (Code 1950, § 8-638; 1954, c. 333; 1973, c. 401; 1977, c. 617.)

REVISERS' NOTE.

Section 8.01-54 is based on former § 8-638 and clarifies the procedure for the specification of the damages awarded under § 8.01-52 and distribution to those beneficiaries determined under § 8.01-53 .

Subsection A is the substance of the first two sentences of former § 8-638. Subsection B requires the court, upon request of either party, to instruct the jury to specify the distribution of the award among the beneficiaries and clarifies the court's authority to apportion the award.

Subsection C provides that the damages awarded are to be paid to the decedent's personal representative. After payment of costs and reasonable attorney's fees, the representative is to distribute the medical and funeral expenses as specifically allocated under § 8.01-52 . The remainder of the awarded damages are to be distributed as specified in subsections A and B to the beneficiaries as determined under § 8.01-53 . If there are no beneficiaries under § 8.01-53 , the personal representative is to dispose of the remaining awarded damages according to law; then, and only then, can the remainder of the awarded damages be subjected to claims by creditors of the decedent.

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Law review. - For articles on damages recoverable for wrongful death, see 12 Wm. & Mary L. Rev. 396 (1970) and 5 U. Rich. L. Rev. 213 (1971).

Michie's Jurisprudence. - For related discussion, see 5C M.J. Death by Wrongful Act, §§ 4, 6, 10, 13, 15, 18, 19.

CASE NOTES

Any distribution of the fund recovered for a tortious killing committed in this State must be in accordance with the death by wrongful act statutes. Withrow v. Edwards, 181 Va. 344 , 25 S.E.2d 343, rev'd on other grounds, 181 Va. 592 , 25 S.E.2d 899, cert. denied, 320 U.S. 761, 64 S. Ct. 70, 88 L. Ed. 453 (1943); Matthews v. Hicks, 197 Va. 112 , 87 S.E.2d 629 (1955) (decided under prior law).

The death by wrongful act statutes create the right of action for tortious death, limit the recovery, and name the classes of beneficiaries who may share in the recovery. Such recovery can be distributed only in accordance with the express terms of the statute. Porter v. VEPCO, 183 Va. 108 , 31 S.E.2d 337 (1944) (decided under prior law).

Damages are not part of decedent's estate. - Damages recovered in an action for wrongful death are not part of the estate of the decedent, and the recovery can be distributed only in accordance with the express terms of this statute. Porter v. VEPCO, 183 Va. 108 , 31 S.E.2d 337 (1944) (decided under prior law).

And are not subject to dower or curtesy. - The damages recovered in an action for wrongful death are not subject to the dower or curtesy of the surviving consort. Porter v. VEPCO, 183 Va. 108 , 31 S.E.2d 337 (1944) (decided under prior law).

The use of special verdicts in negligence cases is unknown in Virginia, and, unless the parties agree otherwise, there is no reason to require such a verdict where negligence results in death and causes sorrow, mental anguish, lost income, and lost services and protection. Rather, damages for these elements should be awarded in a lump sum and distributed to the beneficiaries according to this section. Johnson v. Smith, 241 Va. 396 , 403 S.E.2d 685 (1991).

Trial court has authority to question attorney's fees. - Legislature intended issue of reasonableness of attorney's fees to issue in settlement of any wrongful death case; thus, trial court erred in stating that it had no authority to question attorney's fees. Lovelace v. Lovelace, 237 Va. 174 , 375 S.E.2d 750 (1989).

Distribution of award is left to court's discretion. - Estate of a U.S. AID worker who was killed in the 1983 U.S. Embassy bombing in Beirut, Lebanon, brought a wrongful death action against defendants, the Islamic Republic of Iran and its Ministry of Intelligence and Security for the benefit of the decedent's surviving spouse and children, and the precise distribution of the award among the statutory beneficiaries was left to the court's discretion. Dammarell v. Islamic Republic of Iran, 404 F. Supp. 2d 261, 2005 U.S. Dist. LEXIS 32618 (D.D.C. Dec. 14, 2005).

Minor beneficiaries. - In a wrongful death case, the trial court erred when it refused to direct payment of the minor beneficiaries' awards to the personal representatives and instead ordered that the awards be placed in a bank account maintained by the clerk of court. The trial court had no authority to disregard the statutory command under subsection C of § 8.01-54 directing that the award shall be paid to the personal representatives. In re Woodley, 290 Va. 482 , 777 S.E.2d 560, 2015 Va. LEXIS 141 (2015).

Evidence of debts of decedent inadmissible. - As the wrongful death action recovery is exclusively for the benefit of certain class beneficiaries, and free from all debts of the decedent, evidence of such items would not be admissible in such action. Holley v. The Manfred Stansfield, 186 F. Supp. 805 (E.D. Va. 1960) (decided under prior law).

Applied in Hewitt v. Firestone Tire & Rubber Co., 490 F. Supp. 1358 (E.D. Va. 1980).

CIRCUIT COURT OPINIONS

Distribution of award is left to court's discretion. - After a settlement was reached in a wrongful death action, the trial court had authority to determine how to distribute the settlement proceeds that remained after payment of court-approved attorney's fees among the seven statutory beneficiaries. Because of the close relationship evidenced between the deceased, his second wife to whom he had been married since 1989, their minor child and the deceased's minor stepson, the court awarded the majority of the settlement award to those three beneficiaries, and awarded a nominal award to each of the deceased's four grown children from a previous marriage. Squillaci v. Lewis-Gale Hosp., Inc.,, 2006 Va. Cir. LEXIS 139 (Roanoke Sept. 1, 2006).

Consent judgment not void ab initio. - Assuming the trial court in a wrongful death action resulting in a consent agreement failed to specify the amount to be received by the beneficiaries as required by subsection A of § 8.01-54 , the failure to do so did not void the judgment; a judgment is void ab initio only if it has been procured by extrinsic or collateral fraud, or entered by a court that did not have jurisdiction over the subject matter or the parties. Beckner v. Twin City Fire Ins. Co., 58 Va. Cir. 544, 2002 Va. Cir. LEXIS 175 (Roanoke 2002).

§ 8.01-55. Compromise of claim for death by wrongful act.

The personal representative of the deceased may compromise any claim to damages arising under or by virtue of § 8.01-50 , including claims under the provision of a liability insurance policy, before or after an action is brought, with the approval of the court in which the action was brought, or if an action has not been brought, with the consent of any circuit court. Such approval may be applied for on petition to such court, by the personal representative, or by any potential defendant, or by any interested insurance carrier. If a potential defendant or any insurance carrier petitions the court for approval, the personal representative shall be made a party to the proceeding. The petition shall state the compromise, its terms and the reason therefor. The court shall require the convening of the parties in interest in person or by their authorized representative, but it shall not be necessary to convene grandchildren whose living parents are made parties to the proceeding. The parties in interest shall be deemed to be convened if each such party (i) endorses the order by which the court approves the compromise or (ii) is given notice of the hearing and proposed compromise as provided in § 8.01-296 if a resident of the Commonwealth or as provided in § 8.01-320 if a nonresident, or is otherwise given reasonable notice of the hearing and proposed compromise as may be required by the court.

If the court approves the compromise, and the parties in interest do not agree upon the distribution to be made of what has been or may be received by the personal representative under such compromise, or if any of them are incapable of making a valid agreement, the court shall direct such distribution as a jury might direct under § 8.01-52 as to damages awarded by them. In other respects, what is received by the personal representative under the compromise shall be treated as if recovered by him in an action under § 8.01-52 .

(Code 1950, § 8-639; 1960, cc. 35, 587; 1977, c. 617; 1981, c. 286; 1991, c. 97; 1995, c. 366.)

REVISERS' NOTE.

Besides changes to conform former § 8-639 with modern practice, reference to "an automobile" insurance policy has been deleted and "a liability" policy substituted. This change recognizes that there are many types of liability insurance policies issued besides auto policies.

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Law review. - For survey of Virginia law on trusts and estates for the year 1976-77, see 63 Va. L. Rev. 1503 (1977). For comment, "The Covenant Not to Sue: Virginia's Effort to Bury the Common Law Rule Regarding the Release of Joint Tortfeasors," see 14 U. Rich. L. Rev. 809 (1980).

For annual survey article, "Civil Practice and Procedure," see 44 U. Rich. L. Rev. 269 (2009).

Michie's Jurisprudence. - For related discussion, see 4A M.J. Compromise and Settlement, § 13; 5C M.J. Death by Wrongful Act, §§ 7, 18.

CASE NOTES

Applicability. - In a wrongful death case arising from an alleged wrongful death in Iraq in which the district court was asked to approve a settlement agreement, the Virginia wrongful death statute, §§ 8.01.50 through 8.01.56, did not have extraterritorial application. The claim of the deceased's estate and his widow and two sons, who were all Iraqi citizens, did not arise under or by virtue of the Virginia statute. Estate of Sa'Adoon v. Prince, 660 F. Supp. 2d 723, 2009 U.S. Dist. LEXIS 97973 (E.D. Va. 2009).

Parties in interest have general grant of standing. - Legislature meant for parties in interest to be heard once they were convened; thus, this section provides general grant of standing to parties in interest to be heard in proceeding to approve compromise. Lovelace v. Lovelace, 237 Va. 174 , 375 S.E.2d 750 (1989).

"May" mandatory. - The legislative purpose in changing the old law was to require court approval of all compromises in order better to protect those the legislature had selected as beneficiaries. In light of that purpose, the word "may" as used in the second sentence of this section is mandatory. Under that construction, the first sentence grants the authority to compromise, and the second specifies the condition of that authority. Caputo v. Holt, 217 Va. 302 , 228 S.E.2d 134 (1976) (decided under former version of this section).

Release absent court approval not binding. - When a circuit court approves a compromise settlement under this section, the terms of the release on which it is based likewise are subject to the court's approval. Ramey v. Bobbitt, 250 Va. 474 , 463 S.E.2d 437 (1995) (decided under former version of this section).

Beneficiaries have standing to challenge attorney's fees. - Statutory beneficiaries in wrongful death case have standing to challenge reasonableness of attorney's fees. Lovelace v. Lovelace, 237 Va. 174 , 375 S.E.2d 750 (1989).

Settlements of wrongful death claims open to public. - The judicial records in issue were accumulated in a wrongful death action. Settlements of wrongful death claims must be approved by the courts, and the public has a societal interest in learning whether compromise settlements are equitable and whether the courts are administering properly the powers conferred upon them, therefore, the trial court erred in sealing that class of data. Shenandoah Publishing House, Inc. v. Fanning, 235 Va. 253 , 368 S.E.2d 253 (1988).

Settling parties' contention that § 8.01-55 did not require a written petition to the circuit court or that such petition need not state the financial terms of the compromise settlement was not supported by the plain meaning of the language of the statute. Therefore, the circuit court did not err in construing § 8.01-55 to require a party seeking approval of a compromise settlement of a wrongful death claim to file in the court a written petition that included the complete and unredacted terms of the compromise settlement. Perreault v. Free Lance-Star, 276 Va. 375 , 666 S.E.2d 352, 2008 Va. LEXIS 96 (2008).

Given the salutary purpose of § 8.01-55 , the court could not conceive that the General Assembly intended to permit the confidentiality provisions allowed but not required by § 8.01-581.22 to trump the provisions of § 8.01-55 and, consequently, the right of public access provided for by § 17.1-208 in the context of the records of court approval of the compromise settlement of a wrongful death claim achieved through mediation. Accordingly, the circuit court did not err when the court ruled that in approving the compromise settlements in the present cases, the court was not subject to a de jure requirement under § 8.01-581.22 to place the record, or at least that portion of the record detailing the financial terms of the compromise settlements, under seal. Perreault v. Free Lance-Star, 276 Va. 375 , 666 S.E.2d 352, 2008 Va. LEXIS 96 (2008).

Release absent court approval not binding. - Absent court approval acquired in the manner provided by this section, the release executed by an unqualified administrator was not binding upon the statutory beneficiaries, and the plea of release was properly denied. Caputo v. Holt, 217 Va. 302 , 228 S.E.2d 134 (1976).

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).

This section does not apply in action by infant for personal injuries. - Sections 8.01-424 and 8.01-425 and this section relating to compromises by fiduciaries and on behalf of parties incapable of making binding contracts, have no application to a settlement effected involving the payment of the whole demand asserted by a motion in an action by an infant for personal injuries. The case stands upon the same footing as an adult's case. Hinton v. Norfolk & W. Ry., 137 Va. 605 , 120 S.E. 135 (1923) (decided under former version of this section).

Contempt proceedings. - Where a dock owner agreed to remove a boat dock pursuant to a wrongful death settlement agreement that was included in the court order approving the settlement, the dock owner was properly found in contempt because: (1) the dock owner used structures or objects on the property to moor or dock a boat; and (2) the trial court had jurisdiction to enforce the terms of the settlement since nothing in the language of the Wrongful Death Act precluded the inclusion in the trial court's order of the affirmative relief the parties had agreed to as part of their settlement of the wrongful death action. Fisher v. Salute, 51 Va. App. 293, 657 S.E.2d 169, 2008 Va. App. LEXIS 99 (2008).

Applied in Hewitt v. Firestone Tire & Rubber Co., 490 F. Supp. 1358 (E.D. Va. 1980); Potomac Hosp. Corp. v. Dillon, 229 Va. 355 , 329 S.E.2d 41 (1985); Kelly v. R.S. Jones & Assocs., 242 Va. 79 , 406 S.E.2d 34 (1991); In re Woodley, 290 Va. 482 , 777 S.E.2d 560, 2015 Va. LEXIS 141 (2015).

CIRCUIT COURT OPINIONS

Apportionment between statutory beneficiaries. - After a settlement was reached in a wrongful death action, the trial court had authority to determine how to distribute the settlement proceeds that remained after payment of court-approved attorney's fees among the seven statutory beneficiaries. Because of the close relationship evidenced between the deceased, his second wife to whom he had been married since 1989, their minor child and the deceased's minor stepson, the court awarded the majority of the settlement award to those three beneficiaries, and awarded a nominal award to each of the deceased's four grown children from a previous marriage. Squillaci v. Lewis-Gale Hosp., Inc.,, 2006 Va. Cir. LEXIS 139 (Roanoke Sept. 1, 2006).

Settlements of wrongful death claims open to public. - If the legislative purpose of the statute is to serve the public's societal interest in learning whether compromise settlements are equitable and whether the courts are administering properly the powers conferred on them, the same interest is served by the disclosure of any basis for reducing a lien claimed by the Commonwealth. Chan v. Commonwealth,, 2015 Va. Cir. LEXIS 210 (Charlottesville July 28, 2015).

If the policy consideration of the statute applies to an intrafamilial distribution of proceeds recovered in a wrongful death action, it applies in a case in which one party is asking the Commonwealth to reduce a lien claimed by it for services rendered to that party. Chan v. Commonwealth,, 2015 Va. Cir. LEXIS 210 (Charlottesville July 28, 2015).

If the policy of § 8.01-55 applies to what is essentially a private affair, surely it must apply with even greater force when the public is being asked, even for good reasons, to subsidize medical care to an individual by foregoing all or some portion of an amount specifically reserved to, and protected by lien for, the Commonwealth (and, by extension, the public). Chan v. Commonwealth,, 2015 Va. Cir. LEXIS 210 (Charlottesville July 28, 2015).

§ 8.01-56. When right of action not to determine nor action to abate.

The right of action under § 8.01-50 shall not determine, nor the action, when brought, abate by the death, dissolution, or other termination of a defendant; and when a person who has brought an action for personal injury dies pending the action, such action may be revived in the name of his personal representative. If death resulted from the injury for which the action was originally brought, a motion for judgment and other pleadings shall be amended so as to conform to an action under § 8.01-50 , and the case proceeded with as if the action had been brought under such section. In such cases, however, there shall be but one recovery for the same injury.

(Code 1950, § 8-640; 1954, c. 333; 1977, c. 617.)

REVISERS' NOTE.

The second clause of former § 8-640 has been changed to eliminate certain procedural stipulations which are covered by § 8.01-50 and the rules. The former section provided for the dissolution of a corporate defendant. The addition of "or other termination" of a defendant expands this provision to encompass other organizations such as associations and trusts.

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Cross references. - As to judgment when death occurs after verdict, see § 8.01-21 .

For rule of court on substitution of parties, see Rule 3:17.

Law review. - For note, "Assignability of a Tort Cause of Action in Virginia," see 41 Va. L. Rev. 687 (1955). For discussion of wrongful death action and special damages, see 47 Va. L. Rev. 354 (1961).

For article, "Civil Rights and 'Personal Injuries': Virginia's Statute of Limitations for Section 1983 Suits," see 26 Wm. & Mary L. Rev. 199 (1985).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Abatement, Survival and Revival, §§ 10, 30, 32; 1B M.J. Amendments, § 2; 2A M.J. Assignments, § 14; 5C M.J. Death by Wrongful Act, §§ 2, 4, 8.

CASE NOTES

I. Decisions Under Current Law.
II. Decisions Under Prior Law.

I. DECISIONS UNDER CURRENT LAW.

Sections 8.01-21 , 8.01-25 , 8.01-50 , and 8.01-56 compared. - The requirements of the survival and wrongful death statutes, §§ 8.01-25 , 8.01-50 and 8.01-56 , apply when the death occurs before a final verdict, whereas § 8.01-21 applies where the death occurs after the verdict. Boyd v. Bulala, 647 F. Supp. 781 (W.D. Va. 1986), aff'd in part, rev'd in part, 877 F.2d 1191 (4th Cir. 1989); Bulala v. Boyd, 239 Va. 218 , 389 S.E.2d 670 (1990).

Section 8.01-25 and this section 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." Section 8.01-25 and this section are not in conflict. They deal with the situation where death occurs before verdict. Boyd v. Bulala, 905 F.2d 764 (4th Cir. 1990).

This section modifies the "every cause of action" language of § 8.01-25 to place all personal injury actions in which death occurred as a result of the injury under the wrongful death rubric. Miltier v. Beorn, 696 F. Supp. 1086 (E.D. Va. 1988).

Conversion of foreign action to Virginia action. - A valid foreign personal injury action may be converted to a Virginia wrongful death action, even though the foreign action was not filed within Virginia's two-year limitations period. Riddle v. Shell Oil Co., 764 F. Supp. 418 (W.D. Va. 1990).

Choice of recovery theory in malpractice action. - The plain language contained in § 8.01-25 and this section 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 in instant case, 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, it necessarily follows that in the present 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).

Choice of recovery in wrongful death cases. - 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).

No double recovery. - This Statute and other statutory and common-law principles prohibiting double recovery did not bar plaintiff's Virginia wrongful death action from moving forward as any alleged double recovery based on the settlement of a personal injury claim in Kentucky could be addressed by the circuit court. Green v. Diagnostic Imaging Assocs., P.C., 843 S.E.2d 371, 2020 Va. LEXIS 61 (June 4, 2020).

Where two witnesses vary in their statements of facts. - 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).

Applied in Bartee v. Vitocruz, 288 Va. 106 , 758 S.E.2d 549 (2014).

II. DECISIONS UNDER PRIOR LAW.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

Purpose of statute. - This section was designed to give the right of revival in cases where the plaintiff in actions for personal injuries died pending the action, without regard to the cause of death, and not to make all actions for personal injuries revivable. Birmingham v. C & O Ry., 98 Va. 548 , 37 S.E. 17 (1900).

Right given is not strictly a survival of the right of action. - While this section gives a statutory right in case of the death of the plaintiff that right given is not, properly speaking, a survival of the right of action as interpreted by the Supreme Court. Ruebush v. Funk, 63 F.2d 170 (4th Cir. 1933). But see Tignor v. Parkinson, 729 F.2d 977 (4th Cir. 1984).

The statutes of Virginia do not, in any real sense, provide for the survival of a right of action for personal injury if the injured person dies as a result of the injury. Grady v. Irvine, 254 F.2d 224 (4th Cir.), cert. denied, 358 U.S. 819, 79 S. Ct. 30, 3 L. Ed. 2d 60 (1958).

Meaning of "action". - The Supreme Court of Virginia interprets the terms "cause of action" and "action," as used in this section and § 8.01-25 , as encompassing only such rights of action as are otherwise granted or contemplated by statute. They do not include every right of action which, at any time, may have existed as a result of the tortious conduct. Grady v. Irvine, 254 F.2d 224 (4th Cir.), cert. denied, 358 U.S. 819, 79 S. Ct. 30, 3 L. Ed. 2d 60 (1958).

No recovery for mental anguish, etc. - This section gives a right of revival in cases where the plaintiff dies pending the action, without regard to the cause of death. In such case if death resulted from the injury, the pleadings are required to be amended, and the case proceeded with as if brought under the death by wrongful act statutes. In that event there could be no recovery for the mental anguish, pain or suffering of the decedent. Seymour v. Richardson, 194 Va. 709 , 75 S.E.2d 77 (1953).

Federal court loses jurisdiction where resident administrator is substituted for nonresident plaintiff. - Where a nonresident plaintiff brings an action for personal injuries against a citizen of Virginia in the federal district court in Virginia, and while the action is pending dies of his injuries, and his administrator moves to be substituted as plaintiff and to amend the complaint so as to conform to an action for death by wrongful act, the federal court upon granting the motion loses jurisdiction of the action, since under § 26-59 the administrator must be a citizen of Virginia, and thus there is no diversity of citizenship between the parties. Grady v. Irvine, 254 F.2d 224 (4th Cir.), cert. denied, 358 U.S. 819, 79 S. Ct. 30, 3 L. Ed. 2d 60 (1958).

CIRCUIT COURT OPINIONS

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 it 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).

Appointment of fiduciary required. - Plaintiff parents did not qualify as the personal representatives of their deceased child's estate under subsection B of § 8.01-50 and, therefore, in their wrongful death action brought against a property management corporation, the corporation's plea in bar was granted with prejudice since the two-year statute of limitations had expired the day after the parents brought suit, thereby preventing joinder of a personal representative, who had been appointed 10 months after the suit was filed. The court refused to apply the law of Japan, as urged by the parents, because Japanese law did not require any additional step to qualify a person to bring suit on behalf of a decedent, which directly conflicted with Virginia law that required the appointment of a fiduciary. Yoshida v. Capital Props. Mgmt., 68 Va. Cir. 279, 2005 Va. Cir. LEXIS 124 (Fairfax County 2005).

Complaint properly amended. - Personal injury claim was not time barred as: (1) the original suit was filed against defendants two and three within the two-year limit required by § 8.01-243 ; (2) after the decedent's death, the administrator properly amended the complaint to include a wrongful death action under § 8.01-56 ; (3) after a voluntary nonsuit, the administrator brought the second action within the six-month tolling period under subdivision E 3 of § 8.01-229 ; and (4) an increased ad damnum in the refiled action did not convert the suit into a new cause of action. Jackson v. Vanga, 85 Va. Cir. 266, 2012 Va. Cir. LEXIS 90 (Norfolk Aug. 24, 2012).

Article 6. Injuries to Railroad Employees.

§ 8.01-57. Liability of railroads for injury to certain employees.

Every common carrier by railroad engaged in intrastate commerce shall be liable in damages to any of its employees suffering injury while employed by such carrier or, in the case of the death of any such employee, to his personal representative, for such injury or death, resulting in whole or in part from the wrongful act or neglect of any of its officers, agents, servants, or employees, or by reason of any defect, or insufficiency due to its neglect in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment, except when such employee is injured while engaged in interstate commerce, and except when such employee is injured in the course of his regular employment and such regular employment does not expose such employee to the hazards incident to the maintenance, use and operation of such railroad. If the action be for the death of an employee, §§ 8.01-50 through 8.01-56 shall apply thereto.

(Code 1950, § 8-641; 1954, c. 614; 1977, c. 617.)

REVISERS' NOTE.

The reference to former " §§ 8-634 to 8-640" has been changed to " §§ 8.01-50 through 8.01-56 " so as to include the entire wrongful death article. The former language "so far as applicable and when not in conflict herewith" has been deleted to avoid any possibility of a conflict with §§ 8.01-50 through 8.01-56 .

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Cross references. - As to limitation of action for personal injury, see §§ 8.01-243 and 8.01-244 .

For rules of court governing practice and procedure in civil actions, see Rules 3:1 through 3:25.

Michie's Jurisprudence. - For related discussion, see 5C M.J. Death by Wrongful Act, § 2; 12B M.J. Master and Servant, §§ 64, 76, 79.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

For history of Virginia Employers' Liability Act, see Karabalis v. E.I. Du Pont De Nemours & Co., 129 Va. 151 , 105 S.E. 755 (1921).

Power of legislature to classify railroads. - It is within the constitutional authority of the legislature in enactments such as the Virginia Employers' Liability Act, which are in the exercise of the police power of the State, to adopt a classification which would embrace every corporation operating every kind of road or way on which rails of iron are laid for the wheels of cars to run on, without regard to the character of the railroad as fixed by the business in which it is engaged, e.g., whether the corporation is engaged in the business of a common carrier or of manufacturing. Karabalis v. E.I. Du Pont De Nemours & Co., 129 Va. 151 , 105 S.E. 755 (1921).

This section is not applicable to railroads engaged in interstate commerce. Norfolk & W. Ry. v. Hall, 49 F.2d 692 (4th Cir. 1931).

But no allegation as to intrastate commerce is necessary. - Where an injured railroad employee is suing the employer for injuries sustained in employment, it is unnecessary to allege that the employee was engaged in intrastate commerce which is allegation for surplusage, because this and the following sections, covering intrastate commerce, are almost word for word like the federal act. Norfolk & P. Belt Line R.R. v. White, 143 Va. 875 , 129 S.E. 339 (1925).

Construction of similar acts adopted. - This section closely follows the language of the Federal Employers' Liability Act, and the Supreme Court will adopt the construction placed upon apposite language by the Supreme Court of the United States. C & O Ry. v. Mizelle, 136 Va. 237 , 118 S.E. 241 (1923).

The general rule is that when the General Assembly adopts a statute which has been previously enacted by another sovereignty and construed by the courts of that sovereignty, then such previous construction of the statute is held to be also adopted. C & O Ry. v. Mizelle, 136 Va. 237 , 118 S.E. 241 (1923).

Statute is considered in light of kindred legislation. - Whatever may be the specific words used in an employers' liability act, or in kindred legislation to classify the objects of the statute, the legislative meaning of the words must be found by considering them in the light of other legislation in the particular state on the same subject, and of the meaning which is given to the same words in other existing general legislation of such state. Karabalis v. E.I. Du Pont De Nemours & Co., 129 Va. 151 , 105 S.E. 755 (1921).

Private railroad operated by manufacturing company not within act. - The Virginia Employers' Liability Act, as contained in this article, does not apply to the class of employees therein specified of a manufacturing corporation operating in the State a private railroad, merely incidental to and in connection with its manufacturing business. The act only applies to employees of corporations operating in this State railroads used or authorized by law to be used as common carriers engaged in intrastate commerce. Karabalis v. E.I. Du Pont De Nemours & Co., 129 Va. 151 , 105 S.E. 755 (1921).

Machinist repairing engine in shop cannot invoke act. - The plaintiff, a machinist, who was working on the repair of an engine in the shops of defendant railway, was not engaged in intrastate commerce, or transportation service, within the meaning of the Virginia statute, and hence cannot invoke either this section or § 8.01-59 , which applies to actions brought under this section. Plaintiff was not engaged in either interstate or intrastate commerce. C & O Ry. v. Mizelle, 136 Va. 237 , 118 S.E. 241 (1923).

§ 8.01-58. Contributory negligence no bar to recovery; violation of safety appliance acts.

In all actions brought against any such common carrier to recover damages for personal injuries to any employee or when such injuries have resulted in his death, the fact that such employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee; and no such employee, who may be injured or killed, shall be held to have been guilty of contributory negligence in any case when the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.

(Code 1950, § 8-642; 1954, c. 614; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 12B M.J. Master and Servant, §§ 55, 79.

Editor's note. - Most of the cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

Employment need not be intrastate commerce as in §§ 8.01-57 and 8.01-59 . - It was argued that this section both in the Code and in the original act (Acts 1916, p. 763), should be construed together with the preceding § 8.01-57 and the following § 8.01-59 , and that so construed all three refer to injuries suffered while the employees are engaged in intrastate commerce. But it was held that such a construction would do violence to the language of the section. C & O Ry. v. Mizelle, 136 Va. 237 , 118 S.E. 241 (1923).

Test is whether carrier is engaged in intrastate commerce. - Under this section, contributory negligence is no longer an absolute bar to an action by an injured employee of any common carrier by railroad whose motive power is steam engaged in intrastate commerce, whether such employee is injured while engaged in such commerce or not. The test under this section is not whether at the time of his injury the employee was engaged in intrastate commerce, but merely whether the defendant carrier is engaged in such commerce. C & O Ry. v. Mizelle, 136 Va. 237 , 118 S.E. 241 (1923).

Negligence of defendant must be established. - Until the negligence of defendant is established, no question of contributory negligence of plaintiff can arise. It is essential, therefore, first to establish the negligence of the defendant. In the instant case, negligence of defendant was not established, as the failure of plaintiff's intestate to put up the blue flag for his protection, as required by a rule of the railroad company, was the sole proximate cause of his death. Shumaker's Adm'r v. Atlantic C.L.R.R., 125 Va. 393 , 99 S.E. 739 (1919).

There is nothing in this section which denies the defense of assumed risk, though to a limited extent it is denied by § 8.01-59 in actions brought under § 8.01-57 . C & O Ry. v. Mizelle, 136 Va. 237 , 118 S.E. 241 (1923).

Contributory negligence does not bar recovery. - Unlike § 8.01-58 , which specifically provides that contributory negligence shall not bar a recovery in action brought by employees against a common carrier where death resulted from the common carrier's violation of a statute enacted for the safety of employees, nothing in the Newport News Building Code or Code of City of Newport News § 10-3, allows recovery regardless of a plaintiff's negligence. Therefore, plaintiff who fell backwards over a balcony that did not comply with the height requirements of the building code could not recover against building's owner, even though owner was per se negligent for violating code, because her contributory negligence barred her recovery. O'Neill v. Windshire-Copeland Assocs., L.P., 267 Va. 605 , 595 S.E.2d 281, 2004 Va. LEXIS 73 (2004).

§ 8.01-59. Assumption of risk; violation of safety appliance acts.

In any action brought against any common carrier, under or by virtue of § 8.01-57 , to recover damages for injuries to, or death of, any of its employees, the knowledge of any employee injured or killed of the defective or unsafe character or condition of any machinery, ways, appliances, or structures of such carrier shall not of itself be a bar to recovery for an injury or death caused thereby, nor shall such employee be held to have assumed the risk of his employment in any case in which the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury, or death of such employee.

(Code 1950, § 8-643; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 12B M.J. Master and Servant, §§ 55, 57, 79, 81.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

Purpose of section. - This section was intended to conform the law of assumption of risk in intrastate commerce to the rule applied by the federal decisions to the similar statute applicable to interstate commerce. Roberts v. Southern Ry., 151 Va. 815 , 144 S.E. 863 (1928).

No effect on interstate carriers when Congress has acted. - Where Congress has spoken upon the question of the liability of interstate carriers to their employees, this section, as to assumption of risk and the violation of the Safety Appliance Act, cannot be looked to for guidance as to the liability of such carriers to their employees. Southern Ry. v. Wilmouth, 154 Va. 582 , 153 S.E. 874 , cert. denied, 282 U.S. 878, 51 S. Ct. 81, 75 L. Ed. 775 (1930).

§ 8.01-60. Contracts exempting from liability void; set-off of insurance.

Any contract, rule, regulation or device whatsoever the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by § 8.01-57 , shall to that extent be void; but in any action brought against any such common carrier under or by virtue of such section, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief, benefit or indemnity company that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which such action was brought.

(Code 1950, § 8-644; 1977, c. 617.)

§ 8.01-61. Definition of "common carrier" as used in article.

The term "common carrier" as used in §§ 8.01-57 to 8.01-60 shall include the receivers or other persons or corporations charged with the duty of the management or operation of the business of a common carrier by railroad; but shall not include persons, firms or corporations owning or operating railroads when such railroads are primarily and chiefly used as incidental to the operation of coal, gypsum or iron mines or saw mills, nor shall it apply to any railroad owned or operated by any county.

(Code 1950, § 8-645; 1954, c. 614; 1977, c. 617.)

§ 8.01-62. Action may embrace liability under both State and federal acts.

The motion for judgment or other pleading in any such action may embrace a cause of action growing out of any statute of the United States or this Commonwealth for such injury or death, without being demurrable on this account, and without the plaintiff being required to elect under which statute he claims. Sections 8.01-57 through 8.01-61 shall not apply to electric railways operated wholly within this Commonwealth.

(Code 1950, § 8-646; 1954, c. 614; 1977, c. 617.)

REVISERS' NOTE.

The reference in former § 8-646 to any "act of Congress of the United States of America" has been deleted and "statute of the United States or this Commonwealth" has been substituted. This change does not broaden the scope of former § 8-646 but is made to reflect case law that it is not necessary for the plaintiff to specify whether the action is brought under the United States or the Virginia statute; i.e., it is sufficient if the facts alleged bring the action within either statute since the Virginia court has jurisdiction under both the federal and State laws. Shumaker's Adm'x v. Atlantic Coast Line R.R., 125 Va. 393 , 99 S.E. 739 (1919).

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Michie's Jurisprudence. - For related discussion, see 5C M.J. Death by Wrongful Act, § 2; 12B M.J. Master and Servant, § 79.

CASE NOTES

State and federal statutes exclusive in their jurisdiction. - Whenever the acts of Congress relative to the liability of common carriers engaged in interstate commerce to their employees are applicable, they are exclusive, but if not applicable and the state statute is, the latter will be applied. No case can arise where both statutes are applicable. Shumaker's Adm'r v. Atlantic C.L.R.R., 125 Va. 393 , 99 S.E. 739 (1919) (decided under prior law).

But state court has jurisdiction of both. - It is often extremely difficult to determine whether the injured servant was engaged in interstate commerce or not. The advantage of suing in the state court is that that court has jurisdiction under both acts, and if necessary facts are stated, jurisdiction will be maintained under the appropriate statute. Shumaker's Adm'r v. Atlantic C.L.R.R., 125 Va. 393 , 99 S.E. 739 (1919) (decided under prior law).

Article 7. Motor Vehicle Accidents.

§ 8.01-63. Liability for death or injury to guest in motor vehicle.

Any person transported by the owner or operator of any motor vehicle as a guest without payment for such transportation and any personal representative of any such guest so transported shall be entitled to recover damages against such owner or operator for death or injuries to the person or property of such guest resulting from the negligent operation of such motor vehicle. However, this statute does not limit any defense otherwise available to the owner or operator.

(Code 1950, § 8-646.1; 1974, c. 551; 1977, c. 617.)

Cross references. - For rules of court governing practice and procedure in civil actions, see Rules 3:1 through 3:25.

Law review. - For discussion of punitive damages and their possible application in automobile accident litigation, see 46 Va. L. Rev. 1036 (1960). For case note on assumptions of risk as a limitation of liability in guest-host relationships, see 18 Wash. & Lee L. Rev. 316 (1961). For comment, "The Case Against the Guest Statute," see 7 Wm. & Mary L. Rev. 321 (1966). For comment on guest statute applicability to motor-driven golf carts, see 25 Wash. & Lee L. Rev. 293 (1968). For survey of Virginia law on torts for the year 1968-1969, see 55 Va. L. Rev. 1395 (1969); for the year 1970-1971, see 57 Va. L. Rev. 1501 (1971); for the year 1971-1972, see 58 Va. L. Rev. 1349 (1972); for the year 1973-1974, see 60 Va. L. Rev. 1615 (1974); for the year 1974-1975, see 61 Va. L. Rev. 1856 (1975).

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, §§ 42 - 44; 2B M.J. Aviation, § 6.

CASE NOTES

I. Decisions Under Current Law.
II. Decisions Under Prior Law.

I. DECISIONS UNDER CURRENT LAW.

Simple negligence is the failure to exercise that degree of care that an ordinary prudent person would exercise under the same or similar circumstances to avoid injury to another. Gossett v. Jackson, 249 Va. 549 , 457 S.E.2d 97 (1995).

Sufficient evidence of driver's conduct as proximate cause of negligence. - Plaintiff's presented evidence from which the jury could have inferred that defendant's negligence was a proximate cause of the accident. For example, defendant had previously stopped the car at intersections minutes before the accident occurred and the jury could have found that but for defendant's excessive speed of 60 m.p.h., he would have been able to use the brakes to stop the car and, thus, prevent the accident. The jury could have also found that the car's mechanical condition was not a proximate cause of the accident because police officer testified that the condition of the car did not affect its speed. Furthermore, the jury could have found that defendant was negligent in his operation of the car because he took his hands off the steering wheel of the car as it was "weaving" and traveling at a speed of 60 m.p.h. immediately before the collision. Gossett v. Jackson, 249 Va. 549 , 457 S.E.2d 97 (1995).

Applied in Creasy v. United States, 645 F. Supp. 853 (W.D. Va. 1986); Community Motor Bus Co. v. Windley, 224 Va. 687 , 299 S.E.2d 367 (1983).

II. DECISIONS UNDER PRIOR LAW.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

Statute does not apply to transportation by airplane. - Transportation by airplane is markedly different from transportation by automobile, and neither this section nor the policy behind it should be applied to airplane travel without legislative action. Walthew v. Davis, 201 Va. 557 , 111 S.E.2d 784 (1960).

"Guest" defined. - The word "guest" is used to denote one whom the owner or possessor of a motor car or other vehicle invites or permits to ride with him as a gratuity, that is, without any financial return, except such slight benefits as it is customary to extend as a part of the ordinary courtesies of the road. Thus the mere benefit resulting from companionship, or the advantage resulting from a promise to assist in the driving, is not of a legal value sufficient in itself to transfer a gratuitous undertaking into an undertaking for payment. Mayer v. Puryear, 115 F.2d 675 (4th Cir. 1940).

Even though he may be driving his host's car, a person is still considered a guest as far as his host is concerned. Mayer v. Puryear, 115 F.2d 675 (4th Cir. 1940); Leonard v. Helms, 269 F.2d 48 (4th Cir. 1959).

There was no business relationship between plaintiff and defendant where plaintiff undertook to assist defendant and another friend in helping move material in a truck and the offer to help was a nature of rendition of neighborly assistance without expectation of personal benefit or compensation. The plaintiff was riding as a mere guest. Miller v. Ellis, 188 Va. 207 , 49 S.E.2d 273 (1948).

To raise the status of a passenger from that of guest to paying passenger there must be shown more than incidental benefit conferred on, or social amenities extended to, the owner or operator of the vehicle; the benefit must be a consideration for the transportation. Davis v. Williams, 194 Va. 541 , 74 S.E.2d 58 (1953); Dickerson v. Miller, 196 Va. 659 , 85 S.E.2d 275 (1955).

Where plaintiff upon defendant's invitation rode to work with him and voluntarily paid the defendant, without request, the equivalent of bus fare regularly for a period of more than one year, it was held that plaintiff was a paying passenger and not a "guest" within the meaning of this section. Davis v. Williams, 194 Va. 541 , 74 S.E.2d 58 (1953).

Payments made or services performed for transportation, to be sufficient to elevate one from a guest to a paying passenger, must be more than gratuitous gestures of reciprocal hospitality, or social amenities, extended without thought of bargaining for the transportation. Groome v. Birkhead, 214 Va. 429 , 201 S.E.2d 789 (1974).

It is not necessary that driver receive actual cash in return for transportation. - With respect to "payment" it is not necessary that the operator of the vehicle receive actual cash in return for the transportation supplied, since services or other benefits given by the occupant, if regarded by the parties as consideration inducing the offer of transportation, may be sufficient to entitle the occupant to the status of a paying passenger, as distinguished from a guest passenger. Dickerson v. Miller, 196 Va. 659 , 85 S.E.2d 275 (1955); Hill Hdwe. Corp. v. Hesson, 198 Va. 425 , 94 S.E.2d 256 (1956), commented on in 13 Wash. & Lee L. Rev. 84 (1956); Richardson v. Charles, 201 Va. 426 , 111 S.E.2d 401 (1959); Parker v. Leavitt, 201 Va. 919 , 114 S.E.2d 732 (1960); Gilliland v. Singleton, 204 Va. 115 , 129 S.E.2d 641 (1963).

The payment referred to in this section does not, of course, have to be in cash in order to make the occupant a paying passenger rather than a guest. If a person bargains for services and the transportation is given in consideration thereof, the person performing the services is a paying passenger and not a guest passenger, but the services performed must be more than gratuitous gestures of reciprocal hospitality, or social amenities extended without thought of bargaining for the transportation. Smith v. Tatum, 199 Va. 85 , 97 S.E.2d 820 (1957).

And one who performs services in return for transportation is paying passenger. - If a person bargains for services and as consideration therefor offers transportation, the person performing or agreeing to perform the services and accepting such transportation is a paying passenger and not a guest passenger. Dickerson v. Miller, 196 Va. 659 , 85 S.E.2d 275 (1955), commented on in 13 Wash. & Lee L. Rev. 84 (1956).

Defendant, who was manager of a restaurant, by promising her transportation home, induced decedent to stay beyond her usual hours to clean up. Decedent was therefore a paying passenger. Dickerson v. Miller, 196 Va. 659 , 85 S.E.2d 275 (1955).

It is not necessary to prove that there was an express enforceable contract between the operator and the occupant of a motor vehicle resulting from considerations moving from one to the other to raise the status of the occupant from that of a guest to that of a paying passenger. However, mere giving and receiving of friendly and reciprocal benefits and amenities between the driver and occupant without any thought of creating a business or contractual relation is insufficient to change the status of a guest to that of a paying passenger within the meaning of this section. Hill Hdwe. Corp. v. Hesson, 198 Va. 425 , 94 S.E.2d 256 (1956).

But mere incidental benefit is not sufficient. - An incidental benefit resulting to the defendant from transportation is not sufficient to enlarge the liability from guest to passenger. The benefit to the defendant must be a consideration for the transportation. More than an incidental benefit must have induced the defendant to extend the ride. The benefits, in short, must be more than gratuitous gestures of reciprocal hospitality, or social amenities, extended without thought of bargaining for the transportation. Richardson v. Charles, 201 Va. 426 , 111 S.E.2d 401 (1959).

Owner does not become guest of one whom he allows to drive. - The owner of a car did not lose his character of host and become the guest of his companion when he permitted her to drive the car for her own pleasure. The change of places in the vehicle did not alter the relationship of host and guest, where the guest asked for and was granted the privilege of driving the car. There was no gratuitous undertaking on her part for the benefit of the owner but, rather, the acceptance of a favor from him, which was tendered because it gave her pleasure. Leonard v. Helms, 269 F.2d 48 (4th Cir. 1959).

Where the owner permitted another to operate his automobile but only on condition that the owner accompany the other, the owner did not become a "guest without payment" and thus could recover against the other upon proof of simple negligence in the operation of the automobile. Parker v. Leavitt, 201 Va. 919 , 114 S.E.2d 732 (1960).

A father-in-law who was riding with his daughter-in-law for the purpose of giving her a driver's lesson, where she was driving under a learner's permit, was not a paying passenger but a guest in the vehicle; and his administratrix could recover for his death. Smith v. Tatum, 199 Va. 85 , 97 S.E.2d 820 (1957).

The transportation of a mother by her daughter and the mother's undertaking to purchase gasoline are mere gratuitous gestures of reciprocal hospitality extended in a family relationship; thence the mother is not a paying passenger in her daughter's vehicle, within the meaning of this section. Groome v. Birkhead, 214 Va. 429 , 201 S.E.2d 789 (1974).

Fact that driver and passenger drank and dined together. - Where the purpose of a trip was purely business, the fact that the automobile driver and his passenger had a social drink and dined together during the course of the trip did not change the complexion of it. Richardson v. Charles, 201 Va. 426 , 111 S.E.2d 401 (1959).

"Car pool" arrangement. - Where plaintiff was one of three women who had entered into a "car pool" arrangement whereby each would furnish transportation alternately for a week at a time, and there was no dispute as to the business relationship between the parties nor doubt that by the arrangement they were thus compensated in a substantial business sense, plaintiff was not a "guest without payment" within the meaning of the statute. Gilliland v. Singleton, 204 Va. 115 , 129 S.E.2d 641 (1963).

Plaintiff held a paying passenger. - Under the circumstances, the plaintiff was not "a guest without payment" for her transportation within the meaning of this statute, but was a paying passenger. Gammon v. Hyde, 199 Va. 918 , 103 S.E.2d 221 (1958).

Defendant was a salesman of used cars and had sold one to plaintiff for delivery on a certain day. When delivery was delayed defendant offered to drive plaintiff in another car to a neighboring town where plaintiff had business. On the return trip the accident occurred. On these facts it was properly ruled as a matter of law that plaintiff was a passenger rather than a guest. The trip was clearly motivated by the business transaction between the parties, and it was of substantial benefit to defendant and his employer to furnish the transportation. Richardson v. Charles, 201 Va. 426 , 111 S.E.2d 401 (1959).

Where plaintiff gave defendant $.20 each day after riding home from work with defendant, and defendant accepted this payment as "bus fare to help cover the expenses," plaintiff was clearly a paying passenger. Thoms v. Dowdy, 201 Va. 581 , 112 S.E.2d 868 (1959).

Plaintiff was held to be a paying passenger where she and defendant, friends of long standing, entered into an arrangement to defray in equal shares the cost of operating defendant's automobile during the course of a planned excursion. Bernard v. Bohanan, 203 Va. 372 , 124 S.E.2d 191 (1962).

If the parties, by pre-trip arrangement, provided that the infant plaintiff would compensate the defendant for one half the expenses of operating the car on the trip, this would have been more than a mere social or incidental benefit to the defendant; it would have constituted a substantial pecuniary contribution to help defray such expenses, placing the infant plaintiff in the status of a paying passenger. Sturman v. Johnson, 209 Va. 227 , 163 S.E.2d 170 (1968).

Plaintiff held guest. - Where the evidence proved that the service to be rendered by the defendant in teaching plaintiff to park was a gratuity and a friendly act, plaintiff was a guest passenger and had no right to recover except upon proof of gross negligence. Jenkins v. Womack, 201 Va. 68 , 109 S.E.2d 97 (1959).

Where passenger is child. - The degree of care owed a child is proportionate to the apparent ability of the child in view of his age, maturity and intelligence to foresee and avoid the perils which may be encountered, if those perils are such as have become apparent to or should have been discovered by the operator of a motor vehicle in the exercise of ordinary care under all the circumstances. The younger the child and the less able to look out for himself the greater the care which may reasonably be expected of the motorist. This degree of care required of the operator of a motor vehicle to his guest who is a minor, however, does not relieve the injured minor from the necessity of proving gross negligence in order to recover for his injuries. Ruett v. Nottingham, 200 Va. 722 , 107 S.E.2d 402 (1959).

A child can become a guest in a motor vehicle and subject himself to the gross negligence rule only if he can knowingly and voluntarily accept an invitation to become a guest. Smith v. Kauffman, 212 Va. 181 , 183 S.E.2d 190 (1971).

A child under the age of 14 years is incapable of knowingly and voluntarily accepting an invitation to become a guest in an automobile so as to subject himself to this negligence rule. Smith v. Kauffman, 212 Va. 181 , 183 S.E.2d 190 (1971).

Must show cause of accident. - In order for plaintiff to prevail the evidence must show something more than that the accident may have resulted from one of two causes, for one of which the defendant is responsible, and for the other of which he is not. Grasty v. Tanner, 206 Va. 723 , 146 S.E.2d 252 (1966).

Testimony of witness who did not see accident. - A witness who did not actually see the motor vehicle in movement is incompetent to give testimony based on sound alone as to the speed at which it was moving. Meade v. Meade, 206 Va. 823 , 147 S.E.2d 171 (1966).

Assumption of risk. - A passenger in an automobile does not assume the risk of injury from the driver's negligent operation of the vehicle merely because he knows that the driver has been drinking ardent spirits, where there is no evidence that the driver's ability to drive was impaired thereby. Meade v. Meade, 206 Va. 823 , 147 S.E.2d 171 (1966).

A guest may be guilty of contributory negligence if he knows or reasonably should know that his driver had been drinking intoxicating liquor to an extent likely to affect the manner of his driving and voluntarily continues as a passenger after a reasonable opportunity to leave the automobile. Meade v. Meade, 206 Va. 823 , 147 S.E.2d 171 (1966).

Questions for court or for jury. - If the evidence is such that reasonable men should not differ as to the conclusions drawn from what has been proved, the question is one of law for the court; and conversely, if reasonable men may differ, then the question is one of fact for determination by a jury. Barham v. Virginia Nat'l Bank, 206 Va. 153 , 142 S.E.2d 569 (1965).

If reasonable men should not differ as to the conclusion to be drawn from the facts proved, the question becomes one of law for the court. Bond v. Joyner, 205 Va. 292 , 136 S.E.2d 903 (1964); Scott v. Foley, 205 Va. 382 , 136 S.E.2d 849 (1964).

Burden of proof. - The burden is on the plaintiffs in an action by guest to establish how and why the accident occurred. Crabtree v. Dingus, 194 Va. 615 , 74 S.E.2d 54 (1953); Hailey v. Johnson, 201 Va. 775 , 113 S.E.2d 664 (1960).

The burden is on plaintiff to prove by a preponderance of the evidence that the defendant's negligent operation of the automobile proximately caused the accident and the resulting injuries. Smith v. Prater, 206 Va. 693 , 146 S.E.2d 179 (1966).

CIRCUIT COURT OPINIONS

Driver's contributory negligence and assumption of the risk defenses. - In suit by an administrator of a deceased passenger's estate against an intoxicated driver, the court denied the passenger's motion to preclude the driver's contributory negligence and assumption of risk evidence since, under the facts, either could be a defense to driver. With respect to contributory negligence, the jury could reasonably conclude that the conduct of both the passenger and the driver amounted to willful and wanton negligence, and, (1) if so, the passenger would be barred from recovery, however, (2) if the jury found any lesser degree of negligence, or found that the passenger's negligence had been superseded by her request to be allowed to remove herself from the driver's car, then she would not be barred from recovery. Bane v. Mayes, 65 Va. Cir. 258, 2004 Va. Cir. LEXIS 274 (Roanoke County 2004).

§ 8.01-64. Liability for negligence of minor.

Every owner of a motor vehicle causing or knowingly permitting a minor under the age of sixteen years who is not permitted under the provisions of § 46.2-335 to drive such a vehicle upon a highway, and any person who gives or furnishes a motor vehicle to such minor, shall be jointly or severally liable with such minor for any damages caused by the negligence of such minor in driving such vehicle.

(Code 1950, § 8-646.2; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 2B M.J. Automobiles, § 52.

Editor's note. - The case cited below was decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

Section must be strictly construed. - This section, while remedial, is in derogation of the common law and, therefore must be strictly construed. It must be presumed that the legislature acted with full knowledge of the strict interpretation that must be placed upon a statute of the nature of this section. Hannabass v. Ryan, 164 Va. 519 , 180 S.E. 416 (1935).

The language "who is not permitted under the provisions of § 46.1-357 [ § 46.2-335 ] . . . to drive" deals solely with those not licensed by the State to operate a motor vehicle upon the streets and highways. Had the legislature intended to extend the liability of the owner of a motor vehicle to embrace those who may be prohibited from the operation of such a vehicle by a city ordinance it would have so expressed that intention in the statute. Hannabass v. Ryan, 164 Va. 519 , 180 S.E. 416 (1935) (decided prior to repeal of Title 46.1)

§ 8.01-65. Defense of lack of consent of owner.

It shall be a valid defense to any action brought for the negligent operation of a motor vehicle for the owner of such vehicle to prove that the same was being driven or used without his knowledge or consent, express or implied, but the burden of proof thereof shall be on such owner.

(Code 1950, § 8-646.8; 1977, c. 617.)

REVISERS' NOTE.

For clarification, the word "such" which preceded the word "action" in the second line of former § 8-646.8 has been deleted and the language "brought for the negligent operation of a motor vehicle" has been inserted following "action."

§ 8.01-66. Recovery of damages for loss of use of vehicle.

Whenever any person is entitled to recover for damage to or destruction of a motor vehicle, he shall, in addition to any other damages to which he may be legally entitled, be entitled to recover the reasonable cost which was actually incurred in hiring a comparable substitute vehicle for the period of time during which such person is deprived of the use of his motor vehicle. However, such rental period shall not exceed a reasonable period of time for such repairs to be made or if the original vehicle is a total loss, a reasonable time to purchase a new vehicle. Nothing herein contained shall relieve the claimant of the duty to mitigate damages.
Whenever any insurance company licensed in this Commonwealth to write insurance as defined in § 38.2-124 or any self-insured company refuses or fails to provide a comparable temporary substitute vehicle to any person entitled to recover the actual cost of hiring a substitute vehicle as set forth in subsection A, and if the trial judge of a court of proper jurisdiction subsequently finds that such refusal or failure was not made in good faith, such company shall be liable to that person in the amount of $500 or double the amount of the rental cost he is entitled to recover under subsection A, whichever amount is greater. If the trial court finds that an action brought against an insurance company or any self-insured company under subsection B is frivolous, or not to have been brought in good faith, the court may in its discretion require the plaintiff to pay the reasonable attorney's fees, not to exceed $350, incurred by the defendant in defending the action. This section shall in no way preclude any party from seeking such additional common law remedies as might otherwise be available. (Code 1950, § 8-646.9; 1975, c. 478; 1977, c. 617; 1979, c. 499; 1986, c. 296; 1987, c. 116; 1989, c. 348; 2010, c. 343.)

Cross references. - As to the insurance of state motor vehicles, see § 2.2-1838 .

The 2010 amendments. - The 2010 amendment by c. 343 substituted "$350" for "$200" in the second sentence of subsection B, and made minor stylistic changes.

Law review. - For survey of Virginia law on insurance for the year 1974-1975, see 61 Va. L. Rev. 1759 (1975).

§ 8.01-66.1. Remedy for arbitrary refusal of motor vehicle insurance claim.

Whenever any insurance company licensed in this Commonwealth to write insurance as defined in § 38.2-124 denies, refuses or fails to pay to its insured a claim of $3,500 or less in excess of the deductible, if any, under the provisions of a policy of motor vehicle insurance issued by such company to the insured and it is subsequently found by the judge of a court of proper jurisdiction that such denial, refusal or failure to pay was not made in good faith, the company shall be liable to the insured in an amount double the amount otherwise due and payable under the provisions of the insured's policy of motor vehicle insurance, together with reasonable attorney's fees and expenses. The provisions of this subsection shall be construed to include an insurance company's refusal or failure to pay medical expenses to persons covered under the terms of any medical payments coverage extended under a policy of motor vehicle insurance, when the amount of the claim therefor is $3,500 or less and the refusal was not made in good faith.
Notwithstanding the provisions of subsection A, whenever any insurance company licensed in this Commonwealth to write insurance as defined in § 38.2-124 denies, refuses or fails to pay to a third party claimant, on behalf of an insured to whom such company has issued a policy of motor vehicle liability insurance, a claim of $3,500 or less made by such third party claimant and if the judge of a court of proper jurisdiction finds that the insured is liable for the claim, the third party claimant shall have a cause of action against the insurance company. If the judge finds that such denial, refusal or failure to pay was not made in good faith, the company, in addition to the liability assumed by the company under the provisions of the insured's policy of motor vehicle liability insurance, shall be liable to the third party claimant in an amount double the amount of the judgment awarded the third party claimant, together with reasonable attorney's fees and expenses.
Notwithstanding the provisions of subsections A and B whenever any person who has paid a fee to the Department of Motor Vehicles to register an uninsured motor vehicle pursuant to § 46.2-706 or any person who has furnished proof of financial responsibility in lieu of obtaining a policy or policies of motor vehicle liability insurance pursuant to the provisions of Title 46.2 or any person who is required and has failed either to pay such fee or to furnish such proof pursuant to the provisions of Title 46.2 denies, refuses or fails to pay to a claimant a claim of $3,500 or less made by such claimant as a result of a motor vehicle accident; and if the trial judge of a court of proper jurisdiction finds that such denial, refusal or failure to pay was not made in good faith, such person shall be liable to the claimant in an amount double the amount otherwise due and payable together with reasonable attorney's fees and expenses. For the purposes of this subsection C "person" shall mean and include any natural person, firm, partnership, association or corporation.
1. Whenever a court of proper jurisdiction finds that an insurance company licensed in this Commonwealth to write insurance as defined in § 38.2-124 denies, refuses or fails to pay to its insured a claim of more than $3,500 in excess of the deductible, if any, under the provisions of a policy of motor vehicle insurance issued by such company to the insured and it is subsequently found by the judge of a court of proper jurisdiction that such denial, refusal or failure to pay was not made in good faith, the company shall be liable to the insured in the amount otherwise due and payable under the provisions of the insured's policy of motor vehicle insurance, plus interest on the amount due at double the rate provided in § 6.2-301 from the date that the claim was submitted to the insurer or its authorized agent, together with reasonable attorney's fees and expenses. D. 1. Whenever a court of proper jurisdiction finds that an insurance company licensed in this Commonwealth to write insurance as defined in § 38.2-124 denies, refuses or fails to pay to its insured a claim of more than $3,500 in excess of the deductible, if any, under the provisions of a policy of motor vehicle insurance issued by such company to the insured and it is subsequently found by the judge of a court of proper jurisdiction that such denial, refusal or failure to pay was not made in good faith, the company shall be liable to the insured in the amount otherwise due and payable under the provisions of the insured's policy of motor vehicle insurance, plus interest on the amount due at double the rate provided in § 6.2-301 from the date that the claim was submitted to the insurer or its authorized agent, together with reasonable attorney's fees and expenses.
2. The provisions of this subsection shall be construed to include an insurance company's refusal or failure to pay medical expenses to persons covered under the terms of any medical payments coverage extended under a policy of motor vehicle insurance when the refusal was not made in good faith. (1977, c. 621; 1979, c. 521; 1980, c. 437; 1989, c. 698; 1991, c. 155; 1997, c. 401; 2002, c. 631.)

REVISERS' NOTE.

The generic terms "fiduciary" and "person under a disability" have been substituted for various individuals specified in former sections of the predecessor Title 8 article.

________

Editor's note. - In subdivision D 1, "6.2-301" was substituted for "6.1-330.53," effective October 1, 2010, to conform to the recodification of Title 6.1 by Acts. 2010, c. 794.

The 2002 amendments. - The 2002 amendment by c. 631 substituted "$3,500" for "$2,500" five times throughout the section.

Law review. - For survey of Virginia law on insurance for the year 1976-77, see 63 Va. L. Rev. 1448 (1977).

For 2000 survey of Virginia insurance law, see 34 U. Rich. L. Rev. 883 (2000).

Michie's Jurisprudence. - For related discussion, see 10B M.J. Insurance, § 54.

CASE NOTES

Standard of reasonableness. - This is a remedial statute and operates as a punitive statute in the same manner as § 38.2-209 and the standard of reasonableness applied in using that statute should be used when applying this statute. Nationwide Mut. Ins. Co. v. St. John, 259 Va. 71 , 524 S.E.2d 649 (2000).

An insured's evidentiary burden under this remedial standard is the preponderance of the evidence standard. Nationwide Mut. Ins. Co. v. St. John, 259 Va. 71 , 524 S.E.2d 649 (2000).

For discussion of this section and how it relates to tort of bad faith failure to settle an insurance claim, see A & E Supply Co. v. Nationwide Mut. Fire Ins. Co., 612 F. Supp. 760 (W.D. Va. 1985), rev'd on other grounds, 798 F.2d 669 (4th Cir. 1986), cert. denied, 479 U.S. 1091, 107 S. Ct. 1302, 94 L. Ed. 2d 158 (1987).

When duty of good faith arises. - Fact that interest and costs are measured from the date of the claim shows that the General Assembly intended the duty of good faith to arise when the insured is presently owed under the terms of the policy; in an uninsured motorist policy context, that does not occur when the insured requests damages the insurer has no present obligation to pay, but rather when the insured obtains judgment against the uninsured tortfeasor. Manu v. GEICO Cas. Co., 293 Va. 371 , 798 S.E.2d 598, 2017 Va. LEXIS 73 (2017).

Uninsured motorist carrier's duty to settle. - Statutory framework and legislative history confirm that uninsured motorist (UM) carriers have no duty to settle prior to trial, and reading the statutes in harmony indicates that the UM carrier's decision to settle pretrial is similarly discretionary; a carrier may settle prior to the insured obtaining judgment, but it has no duty to do so. Manu v. GEICO Cas. Co., 293 Va. 371 , 798 S.E.2d 598, 2017 Va. LEXIS 73 (2017).

Duty of uninsured motorist carrier. - Insured is required to obtain a judgment against the uninsured tortfeasor before the uninsured motorist (UM) carrier is obligated to pay the insured on any such policy; because there is no valid UM claim until judgment is obtained, there is also no duty for a UM carrier to pay or settle a demand for payment under the policy until judgment is obtained. Manu v. GEICO Cas. Co., 293 Va. 371 , 798 S.E.2d 598, 2017 Va. LEXIS 73 (2017).

No new duty created. - Rather than creating a new duty, the statute incorporates the duties already established and provides a remedy for the bad faith violation of contractual duties; an insured does not have an existing right to payment from his uninsured motorist (UM) carrier until he meets certain conditions, and thus an insured does not have a UM claim until he obtains judgment, and further that there cannot be a bad faith denial of a demand for payment under a UM policy before the demand ripens into a claim. Manu v. GEICO Cas. Co., 293 Va. 371 , 798 S.E.2d 598, 2017 Va. LEXIS 73 (2017).

Claim as defined in statute. - Request for payment is not a claim subject to a covenant of good faith unless the insurer has a present contractual liability to pay it, and a claim as defined in the statute must arise out of the occurrence of the contingency or loss covered by the insurance policy; the contingency or loss covered by a uninsured motorist policy is payment to the insured of all sums that he is legally entitled to recover as damages from the owner or operator of an uninsured or underinsured vehicle, and that contingency or loss does not occur until the insured obtains judgment against the uninsured tortfeasor. Manu v. GEICO Cas. Co., 293 Va. 371 , 798 S.E.2d 598, 2017 Va. LEXIS 73 (2017).

Application to uninsured motorist carriers. - Uninsured motorist (UM) policies are motor vehicle insurance policies and the statute therefore applies to UM carriers. Manu v. GEICO Cas. Co., 293 Va. 371 , 798 S.E.2d 598, 2017 Va. LEXIS 73 (2017).

Remedy in uninsured motorist cases. - Statute does not create a duty for uninsured motorist (UM) carriers to settle a case prior to trial, but rather creates a remedy for the conduct of UM carriers that refuse in bad faith to pay once the insured has obtained judgment. Manu v. GEICO Cas. Co., 293 Va. 371 , 798 S.E.2d 598, 2017 Va. LEXIS 73 (2017).

Enhanced recovery in uninsured motorist cases. - Breach occurs when an uninsured motorist (UM) carrier arbitrarily refuses to pay once judgment has been obtained; an insured may recover not only the amount due, but also double interest and attorneys' fees and costs, and thus the statute creates an enhanced recovery for an insured in proper UM bad faith actions. Manu v. GEICO Cas. Co., 293 Va. 371 , 798 S.E.2d 598, 2017 Va. LEXIS 73 (2017).

When insured entitled to payment and relation to bad faith. - Insured is not entitled to payment from the uninsured motorist (UM) carrier until she obtains judgment, and any burden of litigation costs in the liability trial which may be incurred by an insured pursuing an uninsured tortfeasor is required by statute prior to a UM carrier becoming obligated to pay its insured under the terms of the UM policy; it is not the product of a UM carrier's bad faith and requires no remedy under the statute. Manu v. GEICO Cas. Co., 293 Va. 371 , 798 S.E.2d 598, 2017 Va. LEXIS 73 (2017).

When duty of good faith arises in uninsured motorist cases. - Neither the Virginia Unfair Trade Practices Act nor the statutory history of the statute indicates the existence of a pretrial duty of good faith in the context of uninsured motorist insurance, because each of those provisions addresses certain conduct by carriers vis-a-vis claims. Manu v. GEICO Cas. Co., 293 Va. 371 , 798 S.E.2d 598, 2017 Va. LEXIS 73 (2017).

CIRCUIT COURT OPINIONS

Sanctions. - Statutory remedy provides a sanction, and trial courts routinely hear sanctions motions as part of the case in which the questioned conduct took place. Chevalier-Seawell v. Mangum, 90 Va. Cir. 420, 2015 Va. Cir. LEXIS 146 (Norfolk Aug. 3, 2015).

Discovery. - Because insureds were not required to pursue their claims for bad faith separately, the insured's discovery was not beyond the scope of Va. Sup. Ct. R. 4:1; the insured pleaded her bad faith claim by motion filed, and trial courts had discretion to permit discovery relating only to a motion. Chevalier-Seawell v. Mangum, 90 Va. Cir. 420, 2015 Va. Cir. LEXIS 146 (Norfolk Aug. 3, 2015).

Construction. - Subdivision D 1 does allow a circuit court to provide relief to an insured when he or she can prove that his or her underinsured motorist carrier failed to act in good faith relating to his or her claim before trial. Chevalier-Seawell v. Mangum, 90 Va. Cir. 420, 2015 Va. Cir. LEXIS 146 (Norfolk Aug. 3, 2015).

Insured was not entitled to bad faith damages, costs, and attorney's fees against her underinsured motorist carrier because the carrier was not liable to the insured unless and until she was legally entitled to collect against the underinsured motorist, there was no authority to proceed against the carrier for bad faith, and the underinsured statute did not overrule or change the Virginia Supreme Court's holdings. Conner v. Glasgow, 92 Va. Cir. 191, 2015 Va. Cir. LEXIS 230 (Spotsylvania County Nov. 5, 2015).

§ 8.01-66.1:1. Subrogation claims by underinsured motorist benefits insurer.

Any underinsured motorist benefits insurer paying such benefits to an insured, by way of settlement or payment pursuant to a judgment, shall have no right of subrogation against any individual or entity who settled with the underinsured motorist benefits insurer's insured pursuant to subsection K of § 38.2-2206 unless the underinsured motorist failed to reasonably cooperate in the defense of any lawsuit brought against him. An underinsured motorist shall be presumed to have failed to reasonably cooperate if he fails or refuses:
1. To attend his deposition or trial if subpoenaed to appear at least 21 days in advance of either event;
2. To assist in responding to written discovery;
3. To meet with defense counsel for a reasonable period of time after reasonable notice, by phone or in person, within 21 days of being served with any lawsuit and again prior to his deposition and trial; or
4. To notify counsel for the underinsured motorist benefits insurer of any change in address. The underinsured motorist may rebut the presumption that he failed to reasonably cooperate. If the court finds that the underinsured motorist's failure to cooperate was not unreasonable or that the underinsured motorist otherwise acted in good faith in attempting to comply with his duty to reasonably cooperate with the underinsured motorist benefits insurer, then the underinsured motorist benefits insurer will not regain its right of subrogation.
The underinsured motorist benefits insurer seeking the cooperation of the underinsured motorist shall pay the reasonable costs and expenses related to procuring such cooperation, including any travel costs if the underinsured motorist resides more than 100 miles from the location of his deposition or trial. Travel costs may be considered by the court in determining whether the underinsured motorist's failure to cooperate was unreasonable or not.
If the court finds that the underinsured motorist satisfied his duty to cooperate with the underinsured motorist benefits insurer or that his failure to do so was not unreasonable, then the court may award him his costs in defending such subrogation action, including reasonable attorney fees.
(2015, cc. 584, 585.)

Editor's note. - Acts 2015, cc. 584 and 585, cl. 2 provides: "That the provisions of this act shall apply to policies issued or renewed on or after January 1, 2016."

Article 7.1. Lien for Hospital, Medical and Nursing Services.

§ 8.01-66.2. Lien against person whose negligence causes injury.

Whenever any person sustains personal injuries caused by the alleged negligence of another and receives treatment in any hospital, public or private, or nursing home, or receives medical attention or treatment from any physician, or receives nursing service or care from any registered nurse, or receives physical therapy treatment from any registered physical therapist in this Commonwealth, or receives medicine from a pharmacy, or receives any emergency medical services and transportation provided by an emergency medical services vehicle, such hospital, nursing home, physician, nurse, physical therapist, pharmacy or emergency medical services provider or agency shall each have a lien for the amount of a just and reasonable charge for the service rendered, but not exceeding $2,500 in the case of a hospital or nursing home, $750 for each physician, nurse, physical therapist, or pharmacy, and $200 for each emergency medical services provider or agency on the claim of such injured person or of his personal representative against the person, firm, or corporation whose negligence is alleged to have caused such injuries.

(Code 1950, § 32-138; 1979, c. 722; 1981, c. 313; 1988, cc. 505, 544; 1995, cc. 470, 550, 669; 2003, cc. 455, 525; 2010, c. 343; 2015, cc. 502, 503; 2017, c. 603.)

The 2003 amendments. - The 2003 amendment by c. 455 inserted "or receives any ambulance service," deleted "or" following "physical therapist," inserted "or ambulance service" preceding "shall have," deleted "and" preceding "$500," and inserted "and $200 for each ambulance service."

The 2003 amendment by c. 525 inserted "or nursing home" following "private," "nursing home" following "such hospital," "or nursing home" following "a hospital."

The 2010 amendments. - The 2010 amendment by c. 343 substituted "$2,500" for "$2,000" and "$750" for "$500."

The 2015 amendments. - The 2015 amendments by cc. 502 and 503 are identical, and twice substituted "emergency medical services and transportation provided by an emergency medical services vehicle" for "ambulance service"; and substituted "emergency medical services agency providing emergency medical services or emergency medical services vehicle transportation" for "ambulance service"; and made minor stylistic changes.

The 2017 amendment. - The 2017 amendment by c. 603 substituted "provider or agency" for "and transportation provided by an emergency medical services vehicle" and substituted "provider or agency" for "agency providing emergency medical services or emergency medical services vehicle transportation."

Law review. - For article, "How Bankruptcy Exemptions Work: Virginia as an Illustration of Why the 'Opt Out' Clause Was a Bad Idea," see 8 G.M.U. L. Rev. 1 (1985).

Michie's Jurisprudence. - For related discussion, see 9B M.J. Hospitals and Sanitariums, § 4; 14B M.J. Physicians and Surgeons, § 3.

CASE NOTES

Debtor's exemption considered in creating lien. - The General Assembly was mindful of the debtor's exemption when it prescribed and fixed in favor of hospitals and doctors the lien rights against personal injury proceeds set forth in this section. Johnston Mem. Hosp. v. Hess, 21 Bankr. 465 (Bankr. W.D. Va. 1982), rev'd on other grounds, 44 Bankr. 598 (Bankr. W.D. Va. 1984).

This article merely creates a method of payment to hospitals, physicians and nurses, which, in effect, makes any recovery in a death action subject to the limitations set forth in these sections. The only effect of this article is to protect pro tanto the rights of those who have rendered services to the injured person pending his demise. In other words, it in effect adds their particular condition to the extent specified in the statute, to those other beneficiaries mentioned in the statutes creating the cause of action and regulating the distribution of the recovery. Holley v. The Manfred Stansfield, 186 F. Supp. 805 (E.D. Va. 1960) (decided under corresponding provisions of prior law).

Applied in Community Hosp. v. Musser, 24 Bankr. 913 (W.D. Va. 1982).

CIRCUIT COURT OPINIONS

Statutory liens payable despite bankruptcy discharge. - In a personal injury suit against a driver, plaintiff's medical bills, which had been discharged in a Chapter 7 bankruptcy, were admissible to show the extent of her pain, suffering, and because a bankruptcy discharge was within the scope of the collateral source rule. However, after paying creditors holding liens and an assignment of benefits on the proceeds of any tort recovery, plaintiff had to pay the balance of any award of medical bills to the health care providers in pro rata shares. Dodd v. Lang, 71 Va. Cir. 235, 2006 Va. Cir. LEXIS 151 (Roanoke 2006).

§ 8.01-66.3. Lien inferior to claim of attorney or personal representative.

The lien provided for in § 8.01-66.2 shall be of inferior dignity to the claim or lien of the attorney of such injured person or of his personal representative for professional services for representing such injured person or his personal representative in his claim or suit for damages for such personal injuries.

(Code 1950, § 32-139; 1979, c. 722.)

§ 8.01-66.4. Subrogation.

Any municipal corporation or any person, firm or corporation who may pay the charges for which a lien is provided in § 8.01-66.2 shall be subrogated to such lien.

(Code 1950, § 32-140; 1979, c. 722.)

Michie's Jurisprudence. - For related discussion, see 18 M.J. Subrogation, § 1.

CASE NOTES

For case holding invalid a municipal personnel rule allowing the municipality to obtain greater rights of subrogation than permitted by a former version of this section, see City of Richmond v. Hanes, 203 Va. 102 , 122 S.E.2d 895 (1961) (decided under prior law).

§ 8.01-66.5. Written notice required.

No lien provided for in § 8.01-66.2 , 8.01-66.9 , or 19.2-368.15 shall be created or become effective in favor of the Commonwealth, an institution thereof, or a hospital, nursing home, physician, nurse, or physical therapist, or emergency medical services and transportation provided by an emergency medical services vehicle, unless and until a written notice of lien setting forth the name of the Commonwealth or the institution, hospital, nursing home, physician, nurse, physical therapist, or emergency medical services agency that provided emergency medical services or emergency medical services vehicle transportation and the name of the injured person has been served upon or given to the person, firm, or corporation whose negligence is alleged to have caused such injuries, or to the attorney for the injured party, or to the injured party. Such written notice of lien shall not be required if the attorney for the injured party knew that medical services were either provided or paid for by the Commonwealth.
In any action for personal injuries or wrongful death against a nursing home or its agents, if the Department of Medical Assistance Services has paid for any health care services provided to the injured party or decedent relating to the action, the injured party or personal representative shall, within 60 days of filing a lawsuit or 21 days of determining that the Department of Medical Assistance Services has paid for such health care services, whichever is later, give written notice to the Department of Medical Assistance Services that the lawsuit has been filed. The Department of Medical Assistance Services shall provide a written response, stating the amount of the lien as of the date of their response, within 60 days of receiving a request for that information from the injured party or personal representative.
(Code 1950, § 32-142; 1979, c. 722; 1980, c. 623; 1983, c. 263; 1988, c. 544; 1998, c. 183; 2003, cc. 455, 525; 2013, c. 273; 2015, cc. 502, 503.)

The 2003 amendments. - The 2003 amendment by c. 455, in present subsection A, twice substituted "physical therapist, or ambulance service" for "or physical therapist."

The 2003 amendment by c. 525 inserted the subsection A designation and inserted "nursing home" twice therein; and added subsection B.

The 2013 amendments. - The 2013 amendment by c. 273 substituted " § 8.01-66.2 , 8.01-66.9 , or 19.2-368.15 " for " § 8.01-66.2 or § 8.01-66.9 " in the first sentence of subsection A.

The 2015 amendments. - The 2015 amendments by cc. 502 and 503 are identical, and in subsection A, substituted "emergency medical services and transportation provided by an emergency medical services vehicle" for "ambulance service" preceding "unless" and substituted "emergency medical services agency that provided emergency medical services or emergency medical services vehicle transportation" for "ambulance service" preceding "and the name"; and made stylistic changes.

CASE NOTES

Lien may be perfected by giving written notice. - This section provides that the lien may be perfected by giving written notice to the injured person or his attorney; there is no requirement that suit must be pending against the alleged tort-feasor when the lien is perfected. Commonwealth v. Lee, 239 Va. 114 , 387 S.E.2d 770 (1990).

§ 8.01-66.6. Liability for reasonable charges for services.

The notice set forth in subsection A of § 8.01-66.5 , when served upon or given to the person, firm or corporation whose negligence is alleged to have caused injuries or to the attorney for the injured party, shall have the effect of making such person, firm, corporation or attorney liable for the reasonable charges for the services rendered the injured person to the extent of the amount paid to or received by such injured party or his personal representative exclusive of attorney's fees, but, except in liens created under § 8.01-66.9 or 19.2-368.15 , not in excess of the maximum amounts prescribed in § 8.01-66.2 .

(Code 1950, § 32-143; 1979, c. 722; 1980, c. 623; 2003, c. 525; 2013, c. 273.)

The 2003 amendments. - The 2003 amendment by c. 525 inserted "subsection A of" near the beginning.

The 2013 amendments. - The 2013 amendment by c. 273 inserted "or 19.2-368.15 " near the end of the section.

§ 8.01-66.7. Hearing and disposal of claim of unreasonableness.

If the injured person questions the reasonableness of the charges made by a hospital, nurse, physician, or emergency medical services agency that provided emergency medical services or emergency medical services vehicle transportation claiming a lien pursuant to § 8.01-66.2 , the injured person or the hospital, physician, nurse, or emergency medical services agency that provided emergency medical services or emergency medical services vehicle transportation may file, in the court that would have jurisdiction of such claim if such claim were asserted against the injured person by such hospital, physician, nurse, or emergency medical services agency that provided emergency medical services or emergency medical services vehicle transportation, a petition setting forth the facts. The court shall hear and dispose of the matter in a summary way after five days' notice to the other party in interest.

(Code 1950, § 32-145; 1979, c. 722; 2003, c. 455; 2015, cc. 502, 503.)

The 2003 amendments. - The 2003 amendment by c. 455 substituted "physician or ambulance service" for "or physician," and twice substituted "nurse or ambulance service" for "or, nurse."

The 2015 amendments. - The 2015 amendments by cc. 502 and 503 are identical, and substituted "emergency medical services agency that provided emergency medical services or emergency medical services vehicle transportation" for "ambulance service" throughout the section.

§ 8.01-66.8. Petition to enforce lien.

If suit is instituted by an injured person or his personal representative against the person, firm, or corporation allegedly causing the person's injuries, a hospital, nursing home, physician, nurse, or emergency medical services agency that provided emergency medical services or emergency medical services vehicle transportation, in lieu of proceeding according to §§ 8.01-66.5 to 8.01-66.7 , may file in the court wherein such suit is pending a petition to enforce the lien provided for in § 8.01-66.2 or 8.01-66.9 . Such petition shall be heard and disposed of in a summary way.

(Code 1950, § 32-146; 1979, c. 722; 1980, c. 623; 2003, cc. 455, 525; 2015, cc. 502, 503.)

The 2003 amendments. - The 2003 amendment by c. 455 substituted "physician, nurse, or ambulance service" for "physician or nurse."

The 2003 amendment by c. 525 inserted "nursing home."

§ 8.01-66.9. Lien in favor of Commonwealth, its programs, institutions or departments on claim for personal injuries.

Whenever any person sustains personal injuries and receives treatment in any hospital, public or private, or nursing home, or receives medical attention or treatment from any physician, or receives nursing services or care from any registered nurse in this Commonwealth, or receives pharmaceutical goods or any type of medical or rehabilitative device, apparatus, or treatment which is paid for pursuant to the Virginia Medical Assistance Program, the State/Local Hospitalization Program and other programs of the Department of Medical Assistance Services, the Maternal and Child Health Program, or the Children's Specialty Services Program, or provided at or paid for by any hospital or rehabilitation center operated by the Commonwealth, the Department for Aging and Rehabilitative Services or any public institution of higher education, the Commonwealth shall have a lien for the total amount paid pursuant to such program, and the Commonwealth or such Department or institution shall have a lien for the total amount due for the services, equipment or devices provided at or paid for by such hospital or center operated by the Commonwealth or such Department or institution, or any portion thereof compromised pursuant to the authority granted under § 2.2-514 , on the claim of such injured person or of his personal representative against the person, firm, or corporation who is alleged to have caused such injuries.

The Commonwealth or such Department or institution shall also have a lien on the claim of the injured person or his personal representative for any funds which may be due him from insurance moneys received for such medical services under the injured party's own insurance coverage or through an uninsured or underinsured motorist insurance coverage endorsement. The lien granted to the Commonwealth for the total amounts paid pursuant to the Virginia Medical Assistance Program, the State/Local Hospitalization Program and other programs of the Department of Medical Assistance Services, the Maternal and Child Health Program, or the Children's Specialty Services Program shall have priority over the lien for the amounts due for services, equipment or devices provided at a hospital or center operated by the Commonwealth. The Commonwealth's or such Department's or institution's lien shall be inferior to any lien for payment of reasonable attorney's fees and costs, but shall be superior to all other liens created by the provisions of this chapter and otherwise. Expenses for reasonable legal fees and costs shall be deducted from the total amount recovered. The amount of the lien may be compromised pursuant to § 2.2-514 .

The court in which a suit by an injured person or his personal representative has been filed against the person, firm or corporation alleged to have caused such injuries or in which such suit may properly be filed, may, upon motion or petition by the injured person, his personal representative or his attorney, and after written notice is given to all those holding liens attaching to the recovery, reduce the amount of the liens and apportion the recovery, whether by verdict or negotiated settlement, between the plaintiff, the plaintiff's attorney, and the Commonwealth or such Department or institution as the equities of the case may appear, provided that the injured person, his personal representative or attorney has made a good faith effort to negotiate a compromise pursuant to § 2.2-514 . The court shall set forth the basis for any such reduction in a written order.

(Code 1950, § 32-139.1; 1972, c. 481; 1974, c. 518; 1979, c. 722; 1981, c. 562; 1982, c. 491; 1983, c. 263; 1984, c. 767; 1985, c. 580; 1986, c. 238; 1988, c. 544; 1989, c. 624; 1992, c. 104; 2003, c. 525; 2012, cc. 803, 835.)

Editor's note. - At the direction of the Virginia Code Commission, "public institution of higher education" was substituted for "state institution of higher education" in the first paragraph to conform to Acts 2016, c. 588.

The 2003 amendments. - The 2003 amendment by c. 525 inserted "or nursing home" near the beginning of the first paragraph.

The 2012 amendments. - The 2012 amendments by cc. 803 and 835, cl. 59, are identical, and substituted "Department for Aging and Rehabilitative Services" for "Department of Aging and Rehabilitative Services" in the first paragraph.

Michie's Jurisprudence. - For related discussion, see 5C M.J. Damages, § 26; 18 M.J. Torts, § 6.

CASE NOTES

Purpose. - The legislative purpose of this section was to secure to the public treasury such recompense as could be found, where public funds had been expended for the treatment of tortious injuries. Commonwealth v. Lee, 239 Va. 114 , 387 S.E.2d 770 (1990).

Commonwealth granted lien against recovery from tortfeasor. - When the Commonwealth pays for or provides medical services to an indigent person necessitated by a tortious injury, this section creates a lien in favor of the Commonwealth for the amount of those services on any recovery from the tortfeasor by the injured party. Commonwealth v. Huynh, 262 Va. 165 , 546 S.E.2d 677, 2001 Va. LEXIS 68 (2001).

Terms "any person" and "claim of such injured person." - The term "any person" in this section is not limited in scope to person sui juris and includes infants within its plain meaning. Likewise, the phrase "claim of such injured person" means precisely what it purports to say; therefore, this section imposes the Commonwealth's lien upon the injured person's claim against the alleged tort-feasor, regardless of the nature of the claim. Commonwealth v. Lee, 239 Va. 114 , 387 S.E.2d 770 (1990).

Court does not have authority to discharge lienholder's underlying debt. - The final sentence of this section does not give the court authority to discharge the lienholder's underlying debt, except to subject it to a credit for the amount apportioned to it in the settlement. Rector & Visitors of UVA v. Harris, 239 Va. 119 , 387 S.E.2d 772 (1990) (decided under version of section prior to 1989 amendment).

Authority of trial court to apportion recovery. - No language in this statute suggests that the Commonwealth should be permitted to enforce its lien in its entirety if, in a particular case, this would result in the injured party being denied a just recovery for her injuries or her attorneys failing to receive reasonable compensation for the services they rendered to obtain that recovery; rather, the statute expressly directs the trial court to "apportion the recovery, . . . as the equities of the case may appear." Commonwealth v. Huynh, 262 Va. 165 , 546 S.E.2d 677, 2001 Va. LEXIS 68 (2001).

Trial court must allot some portion of recovery to Commonwealth. - It is apparent that in order to divide and assign a just portion of the recovery between the injured party, the injured party's attorney and the Commonwealth, the General Assembly could not have intended for the trial court to wholly disregard the claim of the Commonwealth in order to benefit the injured party or his attorneys; a trial court must assign or allot some portion of the recovery to the Commonwealth. Commonwealth v. Huynh, 262 Va. 165 , 546 S.E.2d 677, 2001 Va. LEXIS 68 (2001).

Determination of reasonable attorney's fee. - Although the Commonwealth's lien is statutorily "inferior" to any lien for the payment of "reasonable" attorney's fees, such fees are not immune from apportionment under this section; rather, in apportioning the recovery, the trial court is required to determine the reasonable attorney's fees after considering the circumstances of the particular case, including, but not limited to, the efforts expended in obtaining the recovery for the injured party, the amount of the recovery and the amount of the Commonwealth's lien against that recovery. In making this determination, the trial court may reduce, but not eliminate, the fee provided for in the contract for legal services between the injured party and the attorneys, in order to provide equitable portions of the recovery to the injured party, the injured party's attorneys and the Commonwealth. Commonwealth v. Huynh, 262 Va. 165 , 546 S.E.2d 677, 2001 Va. LEXIS 68 (2001).

Error to award full attorney's fees and nothing to Commonwealth. - A trial court erred in failing to award some portion of an injured party's recovery to the Commonwealth while providing the plaintiff's attorneys the full amount of their contractual fee, particularly in light of the fact that both the Commonwealth and the plaintiff's attorneys conceded that the portion of the recovery afforded to the plaintiff under the trial court's apportionment provided her with less than complete relief and was inadequate to meet her expected future needs. Commonwealth v. Huynh, 262 Va. 165 , 546 S.E.2d 677, 2001 Va. LEXIS 68 (2001).

Shares of recovery apportioned immune from claims of other parties. - When a court, acting pursuant to the final sentence of this section, apportions a recovery between a plaintiff, the plaintiff's attorney, and the Commonwealth or its institutions, that apportionment is binding upon the parties whose claims were adjudicated in the apportionment proceeding, provided such parties had proper notice. The shares of the recovery thus apportioned are thereafter immune from the claims of the other parties to the apportionment, although such claims, subject to credits resulting from the apportionment, may be enforced against other property. Rector & Visitors of UVA v. Harris, 239 Va. 119 , 387 S.E.2d 772 (1990).

Authority of Attorney General to reduce or eliminate lien. - Under the authority of former § 2.1-127 (see now § 2.2-514 ), the Attorney General may reduce or eliminate a claim of the Commonwealth, and the amount of the Commonwealth's lien created by this section would be reduced or eliminated correspondingly. Commonwealth v. Huynh, 262 Va. 165 , 546 S.E.2d 677, 2001 Va. LEXIS 68 (2001).

Sovereign immunity applied to action against Commonwealth. - Bar of sovereign immunity applied to declaratory judgment action because the Commonwealth did not waive that defense in the context of a declaratory judgment action within the purview of § 8.01-66.9 . Afzall v. Commonwealth, 273 Va. 226 , 639 S.E.2d 279, 2007 Va. LEXIS 3 (2007).

Amendment vested judge authority to compromise and reduce Commonwealth's lien. - The effect of the 1981 amendment of this section was to vest in the trial judge, in the circumstances specified by the statute, the authority, otherwise vested in the Attorney General, the Governor, and the appropriate department head by former § 2.1-127 [see now § 2.2-514 ], to compromise and reduce the Commonwealth's lien. The purpose of the amendment was to reduce expense and delay, to avoid litigation, and to promote settlements. Commonwealth v. Smith, 239 Va. 108 , 387 S.E.2d 767 (1990).

Purpose of amendment met only if statute construed to promote settlements. - The legislative purpose of the 1981 amendment of this section is met only if the statute is construed to promote, not to frustrate, settlements. Commonwealth v. Smith, 239 Va. 108 , 387 S.E.2d 767 (1990).

Decision to reduce lien affirmed despite prior accepted offer of settlement. - Supreme Court affirmed trial court's decision to reduce Commonwealth's lien for plaintiff's medical care expenses, despite fact that the accepted offer of settlement had been proposed several years prior to the date for trial, where the lower court found that the offer was not acceptable until the court had reduced the amount of the Commonwealth's lien pursuant to the provisions of this section. Commonwealth v. Smith, 239 Va. 108 , 387 S.E.2d 767 (1990) (decided under version of section prior to 1989 amendment).

CIRCUIT COURT OPINIONS

Reduction of lien. - Where an injured child secured a $50,000 settlement from a motorist who injured the child, and the child's outstanding medical bills totalled roughly $15,742, approximately $15,737 of which was a Medicaid lien by the Commonwealth, the circuit court considered the equities of the case and the competing interests of the injured child, the child's attorney, and the Commonwealth in granting the child's motion under § 8.01-66.9 to reduce the lien, but only to the extent of reducing it by 25%, which was the same percentage by which the child's attorney had voluntarily reduced the attorney's own fee in the case. Terry v. Harris, 56 Va. Cir. 326, 2001 Va. Cir. LEXIS 465 (Richmond 2001).

In a medical malpractice case, where the patient's attorney had made a good faith effort to negotiate a compromise, the court had the authority to reduce the amount of the Medicaid lien and apportion the balance of the settlement recovery between the patient and his attorney. Diaz v. Arlington Anesthesia, Inc., 56 Va. Cir. 329, 2001 Va. Cir. LEXIS 466 (Arlington County 2001).

Reduction in medical services lien denied. - After the settlement of a personal injury action, the patient's request for a reduction in a medical services lien was denied, as the patient's net recovery was just, and since the patient was eligible for Medicaid, none of the net recovery would have to be used for medical treatment. Quivers v. Suffee, 58 Va. Cir. 94, 2001 Va. Cir. LEXIS 396 (Richmond 2001).

§ 8.01-66.9:1. Lien against recovery for medical treatment provided to prisoner.

In any civil action brought for injuries or death suffered by any person while confined in a state or local correctional facility, the Commonwealth or the locality, as the case may be, shall have a lien against any recovery by settlement or verdict for all actual expenses incurred by the Commonwealth or the locality for medical, surgical and hospital treatment and supplies for the prisoner, whether provided by public or private health care providers, as a result of the injury. Such lien shall be subject to the payment of reasonable attorneys' fees and costs.

(1984, c. 519.)

§ 8.01-66.10. Death claims settled by compromise or suit.

In case of personal injuries resulting in death and settlement therefor by compromise or suit under the provisions of §§ 8.01-50 to 8.01-56 , the liens provided for in this article may be asserted against the recovery, or against the estate of the decedent, but not both. If asserted against the recovery and paid, such liens shall attach pro rata to the amounts received respectively by such beneficiaries as are designated to receive the moneys distributed and in their respective amounts; and such beneficiaries, or the personal representative for their benefit, shall be subrogated to the liens against the estate of such decedent provided for by § 64.2-528 .

(Code 1950, § 32-141; 1979, c. 722.)

Editor's note. - At the direction of the Virginia Code Commission, the reference to " § 64.1-157" was changed to " § 64.2-528 " to conform to the recodification of Title 64.1 by Acts 2012, c. 614, effective October 1, 2012.

Michie's Jurisprudence. - For related discussion, see 18 M.J. Subrogation, § 1.

§ 8.01-66.11. Necessity for settlement or judgment.

Nothing contained in this article shall be construed as imposing liability on any person, firm or corporation whose negligence is alleged to have caused injuries or on the attorney for the injured party where no settlement is made, or, in case of an attorney, where no funds come into his hands, or where no judgment is obtained in favor of such injured party or his personal representative.

(Code 1950, § 32-144; 1979, c. 722.)

§ 8.01-66.12. Term physician to include chiropractor.

Wherever the term physician is used in this article, it shall include chiropractor.

(1993, c. 702.)

Article 8. Actions for the Sale, Lease, Exchange, Redemption and Other Disposition of Lands of Persons Under a Disability.

§ 8.01-67. Definitions; persons under a disability; fiduciary.

The terms "fiduciary" and "person under a disability" as used in this article shall have the meanings ascribed to them in § 8.01-2 .

(1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 10A M.J. Insane and Other Incompetent Persons, § 12.

Applied in Upton v. Hall, 225 Va. 168 , 300 S.E.2d 777 (1983).

§ 8.01-68. Jurisdiction.

Circuit courts in the exercise of their equity jurisdiction, upon being satisfied by competent evidence independent of the admissions in the pleadings or elsewhere in the proceedings, that one or more of the types of relief hereinafter specified will promote the interest of an owner of land, or any interest therein, who is a person under a disability as defined in this chapter for whom a conservator has not been appointed pursuant to Chapter 20 (§ 64.2-2000 et seq.) of Title 64.2, and taking into consideration the rights of any other party interested in such land, may order the sale, exchange, lease, encumbrance, redemption, or other disposition of such real estate as to the court may seem just and equitable.

In the case of the sales of such lands or interest therein, the court shall be governed by the established practices for judicial sales generally except as they may be specifically modified by provisions of this article.

(Code 1950, §§ 8-675, 8-677, 8-681, 8-682, 8-683; 1952, c. 360; 1977, c. 617; 1997, c. 921.)

REVISERS' NOTE.

The section combines and simplifies former §§ 8-675, 8-677, 8-681, 8-682, and 8-683 while retaining the thrust of these sections. Thus, § 8.01-68 promotes the interest of the person under a disability without injuriously affecting the rights of the persons who may also have an interest in the land.

________

Cross references. - As to leases on behalf of person under a disability, see § 8.01-74 .

As to petition by fiduciary for sale of real estate of person under a disability, see §§ 8.01-78 through 8.01-80 .

As to disposition of proceeds of partition of person under a disability, see § 8.01-85 .

As to sale of contingent estate, see §§ 8.01-94 , 8.01-95 .

As to protection of purchaser at judicial sale, see § 8.01-113 .

As to commutation of life estate of person under disability, see § 55.1-505 .

For rule relating to intervenors, see Rule 3:14.

Editor's note. - At the direction of the Virginia Code Commission, the reference to "Chapter 10 ( § 37.2-1000 et seq.) of Title 37.2" was changed to "Chapter 20 ( § 64.2-2000 et seq.) of Title 64.2" to conform to the recodification of Title 64.1 by Acts 2012, c. 614, effective October 1, 2012.

Law review. - For article, "Updating Virginia's Probate Law," see 4 U. Rich. L. Rev. 223 (1970).

For an article, "Reform of Adult Guardianship Law," see 32 U. Rich. L. Rev. 1273 (1998).

Michie's Jurisprudence. - For related discussion, see 9A M.J. Guardian and Ward, § 24; 9B M.J. Infants, §§ 55, 59, 60.

CASE NOTES

General Consideration. B. Jurisdiction. C. When Sale Proper. D. Interests That May Be Sold. E. Confirmation of Sale Already Made. F. Procedure. G. Setting Aside Decree.

A. GENERAL CONSIDERATION.

Editor's note. - Some of the cases cited below were decided under corresponding provisions of former law. The terms "this chapter" and "this section," as used below, refer to former provisions.

Infants' lands can be sold only as provided in this chapter. - Infants' lands can be sold only under the authority and for the purpose contained in this and the following sections of this chapter. Clark v. George, 161 Va. 104 , 170 S.E. 713 (1933).

Section is to be liberally construed. - This section is highly remedial, and upon familiar principles must receive a liberal construction, to give effect to the intention of the legislature and enhance the remedy. Faulkner v. Davis, 59 Va. (18 Gratt.) 651 (1868); Rhea v. Shields, 103 Va. 305 , 49 S.E. 70 (1904).

As to subjects to be sold. - The rule requiring a liberal construction to be placed upon statutes for the sale of lands of persons under disability has reference rather to the subjects sought to be sold in which such persons are interested than to the procedure by which such sales are effected. It does not authorize a mode of procedure not in substantial compliance with the statute authorizing the sale. Coleman v. Virginia Stave & Heading Co., 112 Va. 61 , 70 S.E. 545 (1911). See also, Parker v. Stephenson, 127 Va. 431 , 104 S.E. 39 (1920).

But substantial compliance with provisions of this chapter is required. - When a suit is instituted to confirm the sale of infants' lands, there must be not only a substantial compliance with this section but a substantial compliance with the other provisions of this chapter. Clark v. George, 161 Va. 104 , 170 S.E. 713 (1933).

If a suit for the sale of lands of an insane person be brought under this section, there must be a substantial compliance with the other sections of this chapter. Wheeler v. Thomas, 116 Va. 259 , 81 S.E. 51 (1914).

Character of property not changed except to extent required. - The legislative intent expressed in the statutes concerning the sale of lands owned by infants and incompetents is that the character and nature of an incompetent's land is not to be changed except to the extent required, and the proceeds of sale shall be impressed with the character of the land. Bryson v. Turnbull, 194 Va. 528 , 74 S.E.2d 180 (1953).

Consent decree in partition proceedings void for noncompliance with article. - A consent decree in partition proceedings, to the effect that respondents' share of the land be set off to them in bulk as joint tenants with the right of survivorship, was void as to an incompetent respondent where the requirements of the statutes providing for the sale of lands belonging to persons under disability were not complied with, although the incompetent's committee was a party to the suit and the incompetent was represented by a guardian ad litem. Leonard v. Boswell, 197 Va. 713 , 90 S.E.2d 872 (1956).

Recovery for improvements against one who was not party to lease. - A lessee could not recover for the value of his improvements against an infant who was a part owner, relying upon the provision in his lease permitting him to remove all improvements upon termination of the lease, where she was not a party to the lease. White v. Pleasants, 227 Va. 508 , 317 S.E.2d 489 (1984).

Applied in Commonwealth v. Taylor, 256 Va. 514 , 506 S.E.2d 312 (1998).

B. JURISDICTION.

Jurisdiction is not inherent. - In this State a court of equity has no authority under its general jurisdiction as guardian of infants to sell their real estate whenever it is to the advantage of the infants to do so, whether for reinvestment or for their maintenance and education. Faulkner v. Davis, 59 Va. (18 Gratt.) 651 (1868); Kavanaugh v. Shacklett, 111 Va. 423 , 69 S.E. 335 (1910); Coleman v. Virginia Stave & Heading Co., 112 Va. 61 , 70 S.E. 545 (1911).

This section grants such jurisdiction. - The doctrine in this State is well settled that courts of equity possess no inherent power, as guardians of infants, to sell their real estate for the purpose of reinvestment, and the obvious purpose of this section is to invest those courts with that jurisdiction in respect to estates of all persons under disability. Rhea v. Shields, 103 Va. 305 , 49 S.E. 70 (1904). See also, Faulkner v. Davis, 59 Va. (18 Gratt.) 651 (1868); Rinker v. Streit, 73 Va. (33 Gratt.) 663 (1880); Kavanaugh v. Shacklett, 111 Va. 423 , 69 S.E. 335 (1910); Coleman v. Virginia Stave & Heading Co., 112 Va. 61 , 70 S.E. 545 (1911).

The jurisdiction of the circuit courts of the Commonwealth to authorize the application of the proceeds of the corpus of infants' real estate to their maintenance and education is altogether statutory. Whitehead v. Bradley, 87 Va. 676 , 13 S.E. 195 (1891); Hess v. Hess, 108 Va. 483 , 62 S.E. 273 (1908).

But it is special and limited. - In a suit under this section for the sale of an infant's lands, the court does not exercise a general, but only a special, statutory and limited, jurisdiction. Therefore, the conditions of fact, under which this section confers jurisdiction upon the court to enter a decree of sale, must affirmatively appear on the face of the proceedings in the suit in order that the decree may be valid. Farant Inv. Corp. v. Francis, 138 Va. 417 , 122 S.E. 141 (1924).

And court may exercise only powers expressly granted. - Possessing no inherent power to sell the land of an infant, courts of equity are limited by the powers expressly granted by this chapter. Newman v. Light, 152 Va. 760 , 148 S.E. 818 (1929).

C. WHEN SALE PROPER.

Sale to pay debts of decedent is not authorized. - Nowhere in this chapter is there any authority for the sale of infant's lands or a confirmation of such a sale for the purpose of paying the debts of a testator or intestate by or from whom the title to the lands has been devised or inherited by the infants. Clark v. George, 161 Va. 104 , 170 S.E. 713 (1933).

Unless testator expressly prohibits sale. - It was not the purpose of the legislature to overrule an imperative prohibition of the testator, applicable to all circumstances that might occur or exist; and, therefore, the power to sell is withheld from the courts where the will expressly directs that the property shall not be sold. Where there is no such absolute prohibition, the testator must be regarded as having left the matter subject to the general authority conferred by the law. Talley v. Starke, 47 Va. (6 Gratt.) 339 (1849).

In Talley v. Starke, 47 Va. (6 Gratt.) 339 (1849), a testator directed his estate, after payment of his debts, to be kept together until his youngest child should come of age, to be controlled and managed by his executor and his wife with their best discretion, so as to make it productive of the greatest amount of profits for the support of his wife and children. It was held that a court of equity might direct a sale of the real estate under the statute if it was for the benefit of the infant children, and those who were of age consented. The direction of the testator that his estate should be kept together did not amount to an absolute prohibition of a sale, which would have made it incompetent for the court to decree such a sale. Faulkner v. Davis, 59 Va. (18 Gratt.) 651 (1868).

And construction of will is not prerequisite to sale. - This section does not require as a prerequisite that the will under which infants hold land shall be construed before a sale is ordered. Lancaster v. Barton, 92 Va. 615 , 24 S.E. 251 (1896).

D. INTERESTS THAT MAY BE SOLD.

Land in which infant has any interest may be sold. - Courts of equity have authority to sell land in which infants have an interest, whether in possession or remainder, vested or contingent, if the proper parties can be brought before the courts. Faulkner v. Davis, 59 Va. (18 Gratt.) 651 (1868).

Fee may be sold though infant has only life estate. - Under this section, a court of equity at the suit of the trustee of a life estate in land may sell not only the life estate, but also the remainder limited on that estate, over which the trust does not extend, the proceeds of the sale or the subject in which they are invested being held upon the same trusts and subject to the same limitations as the original estate. Rhea v. Shields, 103 Va. 305 , 49 S.E. 70 (1904).

Or remainder. - A father as guardian of his infant children files a bill for the sale of real estate held by himself for life and by his children in remainder, and it is sold accordingly. This is authorized by this section. Cooper v. Hepburn, 56 Va. (15 Gratt.) 551 (1860).

But mere contingent interest alone should not be sold. - Under no circumstances would a court of equity decree the sale of a mere contingent interest of infants alone. Faulkner v. Davis, 59 Va. (18 Gratt.) 651 (1868).

E. CONFIRMATION OF SALE ALREADY MADE.

Court may confirm sale made before suit is brought. - The former section has been generally construed as authorizing the court which has jurisdiction to order a sale to approve and confirm a sale made by the fiduciary before suit is brought, subject to the court's approval and confirmation, provided it be clearly shown, independently of any admissions in the answers, that the interests of the infant, insane person or beneficiaries in the trust, as the case may be, will be promoted, and the court is of opinion that the right of no person will be violated thereby. Smith v. White, 107 Va. 616 , 59 S.E. 480 (1907).

If it appears advantageous. - A bill by the guardians of infant children to have a contract for the sale of real estate confirmed, or the real estate resold, is properly maintainable under this section. It is competent for the court to confirm the sale already made, if it appears advantageous, instead of ordering a resale. Garland v. Loving, 22 Va. (1 Rand.) 396 (1823).

Court should not confirm sale when necessity therefor has ceased. - When the court is called upon to confirm a sale had under this section, and the necessity therefor, which seemed to exist when the sale was ordered, shall have ceased, it is proper that the court should refuse to confirm the sale. Harkrader v. Bonham, 88 Va. 247 , 16 S.E. 159 (1891).

Subsequent approval does not validate unauthorized expenditure. - Where a sale commissioner paid the purchase money of an infant's realty sold under decree of court to the infant's guardian, and the latter expended the principal thereof for the ward's maintenance and education, without previous authority from the court, subsequent approval by the court was too late to give validity either to the expenditure or the payment. Whitehead v. Bradley, 87 Va. 676 , 13 S.E. 195 (1891).

F. PROCEDURE.

Petition may be filed in appropriate pending suit. - This section is construed not as requiring an independent bill for the purpose of selling an infant's lands but as permitting such a sale on petition filed in any appropriate suit already pending. Carter Coal Co. v. Litz, 54 F. Supp. 115 (W.D. Va. 1943), aff'd, 140 F.2d 934 (4th Cir. 1944).

Infant is treated as hostile party. - In proceedings to sell their land, infants stand in the position of hostile parties, and are treated as objecting to every step taken therein. Coleman v. Virginia Stave & Heading Co., 112 Va. 61 , 70 S.E. 545 (1911).

And need not demur. - In a suit to sell or mortgage the lands of an infant, he is considered as objecting at every point, and no demurrer is needed on his part. Parker v. Stephenson, 127 Va. 431 , 104 S.E. 39 (1920).

Omission of averment that plaintiff sues as guardian is not fatal. - The omission of a formal averment that a bill is brought by the plaintiff as guardian does not violate the proceedings, where the bill states that the plaintiff is the guardian, and the whole frame of the bill is in pursuance of what is required to be set out in such a case, and the infants are made defendants. Cooper v. Hepburn, 56 Va. (15 Gratt.) 551 (1860).

Petition should set forth all infant's property. - A bill did not contain an express allegation that the real estate which was set forth therein constituted all of the estate, real or personal, belonging to the infant, but it appeared from the evidence that the real estate set forth did, as a matter of fact, constitute all of the infant's estate. It was held that this ultimate fact was all that was required to be stated, and that if the court found that the plaintiff alleged and proved this fact, and there was nothing on the face of the proceedings to negative the finding, then it was adequate. Farant Inv. Corp. v. Francis, 138 Va. 417 , 122 S.E. 141 (1924).

It is immaterial that the bill in a suit for the sale of the infant's lands, in addition to setting out all of the real and personal estate belonging to the infant does not add the statement that this is all the real and personal estate belonging to the infant. Farant Inv. Corp. v. Francis, 138 Va. 417 , 122 S.E. 141 (1924).

And plaintiff should adduce proof of propriety of sale. - A failure to aver what property the infant owns besides that sought to be sold, and to adduce any proof of the propriety of the sale, is not adequate and a sale based thereon is a nullity. Coleman v. Virginia Stave & Heading Co., 112 Va. 61 , 70 S.E. 545 (1911).

Propriety cannot be determined on ex parte affidavits. - The propriety of making a sale under this section, or of confirming a conditional sale, made before suit brought under this section, cannot be determined upon ex parte affidavits. Smith v. White, 107 Va. 616 , 59 S.E. 480 (1907). See also, Coleman v. Virginia Stave & Heading Co., 112 Va. 61 , 70 S.E. 545 (1911).

Validity of appointment of guardian cannot be attacked. - The fact that the guardian was appointed by a court having no power to do so cannot be raised as an objection to the validity of a sale of an infant's lands, since such appointment cannot be attacked collaterally. Durrett v. Davis, 65 Va. (24 Gratt.) 302 (1874).

G. SETTING ASIDE DECREE.

Where court has jurisdiction, decree is conclusive. - Where a court has jurisdiction pursuant to this section, both of the parties and of the subject matter in litigation, its decree, though erroneous, is conclusive until reversed or set aside. Rhea v. Shields, 103 Va. 305 , 49 S.E. 70 (1904).

And cannot be attacked collaterally. - The court having had jurisdiction of the case under this section, the validity and propriety of a decree for the sale of infant's land cannot be questioned in a collateral proceeding. Quesenberry v. Barbour, 75 Va. (31 Gratt.) 491 (1879).

But if jurisdiction is lacking, sale is void. - Where proceedings are wholly wanting in some of the jurisdictional requirements of this section, a sale is void and subject to collateral attack. Robert v. Hagan, 121 Va. 573 , 93 S.E. 619 (1917).

And noncompliance with chapter invalidates decree. - In suit for the sale of infants' lands under this chapter, where it appears that the bill was not verified and no answer was filed by the guardian ad litem, in proper person of the infants, nor by the infants over the age of fourteen years, and there were other vital defects in the proceedings, the court was without jurisdiction to decree a sale of the lands, and the decree, the sale, and all proceedings thereunder were utterly void and without effect, and might be assailed directly or collaterally. Substantial compliance with this chapter is essential to the validity of the proceedings. Brenham v. Smith, 120 Va. 30 , 90 S.E. 657 (1916).

Adjudicated fact cannot be inquired into in collateral proceeding. - Where a decree for the sale of an infant's land is assailed, and nothing appears on the face of the record of the proceedings which tends to negative the adjudicated fact that the bill plainly set out all of the real and personal estate belonging to the infant, it must be assumed that there was evidence sufficient to support this adjudication, so that the fact is not open for further inquiry in a collateral proceeding. Farant Inv. Corp. v. Francis, 138 Va. 417 , 122 S.E. 141 (1924).

But sales beneficial to infants will not be set aside on the ground of irregularities therein. Cooper v. Hepburn, 56 Va. (15 Gratt.) 551 (1860). See also, Brown v. Armistead, 27 Va. (6 Rand.) 594 (1828).

And § 8.01-113 applies to sales of lands, under this section, of infants made in suits properly brought for that purpose. Cooper v. Hepburn, 56 Va. (15 Gratt.) 551 (1860); Dixon v. McCue, 62 Va. (21 Gratt.) 373 (1871); Quesenberry v. Barbour, 72 Va. (31 Gratt.) 491 (1879); Lancaster v. Barton, 92 Va. 615 , 24 S.E. 251 (1896).

§ 8.01-69. Commencement of suit; parties.

Any of the relief specified in this article may be sought by bill in equity filed by a fiduciary, as defined in this article, or by any other person having an interest in the subject matter of the proceedings. A person under a disability, fiduciary, all those who would be the heirs or distributees of the defendant person under disability if he had died at the time of the commencement of this proceeding, except as provided in § 8.01-78 , and all other persons interested in the subject matter of the proceeding, shall be made parties defendant when not parties plaintiff.

(Code 1950, § 8-676; 1952, c. 360; 1972, c. 361; 1973, c. 338; 1977, c. 617; 1983, c. 459.)

REVISERS' NOTE.

This is a simplification of the first paragraph of former § 8-676, the second paragraph of which was former § 8.01-70 .

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Michie's Jurisprudence. - For related discussion, see 9B M.J. Infants, §§ 59, 60, 64.

CASE NOTES

I. General Consideration.
II. Persons Who Would Be Heirs of Person Under Disability.

I. GENERAL CONSIDERATION.

Editor's note. - Most of the cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

Presence of necessary parties is jurisdictional. - The presence of the necessary parties required by this section in a suit for the sale of infants' lands is jurisdictional, and a decree rendered in their absence is void as to infants whose interests are affected thereby. Gee v. McCormick, 142 Va. 173 , 128 S.E. 541 (1925); Newman v. Light, 152 Va. 760 , 148 S.E. 818 (1929).

And want of proper parties invalidates mortgage and sale. - Where, in a suit for the sale or mortgage of an infant's lands, it was the purpose of the parties to proceed under this and the preceding section, and they endeavored to conform thereto, but the proceedings were substantially defective for want of proper parties, a mortgage made in pursuance thereof and a sale thereunder were void. Parker v. Stephenson, 127 Va. 431 , 104 S.E. 39 (1920).

Lack of substantial compliance with section voids proceedings. - Where the state court failed to substantially comply with former § 8-676, which set forth jurisdictional requirements for an action to sell, encumber or lease infants' land, the lack of substantial compliance made the proceeding void ab initio and in toto because the court lacked jurisdiction. Payne v. Consolidation Coal Co., 607 F. Supp. 378 (E.D. Va. 1985) (decided under former § 8-676).

Representative capacity. - An individual or entity does not acquire standing to sue in a representative capacity by asserting the rights of another unless authorized by the statute to do so. W.S. Carnes, Inc. v. Board of Supvrs., 252 Va. 377 , 478 S.E.2d 295 (1996).

The infants must be made parties defendant by guardian ad litem. Snavely v. Harkrader, 70 Va. (29 Gratt.) 112 (1877).

Or they may be plaintiffs with their guardian. - The fact that infants were plaintiffs with their mother, instead of being made defendants, is no objection to the proceedings in a suit for the sale of land. Quesenberry v. Barbour, 72 Va. (31 Gratt.) 491 (1879).

Purchaser at sale to be confirmed is necessary party. - Where the petition asks that a contract previously entered into by the guardian for the sale of the infant's land be confirmed by the court, the purchaser under the contract is a necessary party. Hughes v. Johnston, 53 Va. (12 Gratt.) 479 (1855).

II. PERSONS WHO WOULD BE HEIRS OF PERSON UNDER DISABILITY.

"Distributees" and "heirs" refer to natural persons only. - The words "distributees" and "heirs," as used in this section, have reference to natural persons only, and not to the Commonwealth, as the Commonwealth takes property not as an heir but by title paramount. Farant Inv. Corp. v. Francis, 138 Va. 417 , 122 S.E. 141 (1924).

Presumptive heirs of infant must be parties defendant. - All persons who would be the heirs of the infant if he were dead must, under this section, be made parties defendant. Snavely v. Harkrader, 70 Va. (29 Gratt.) 112 (1877).

Unless they are plaintiffs. - Where a bill is filed by a father and mother, who are trustees of certain lands for their infant children, to sell these lands, it is a sufficient compliance with this section that the infants should be made parties defendant, their parents, who are the persons who would be the heirs of each infant if he were dead, being already plaintiffs. Lancaster v. Barton, 92 Va. 615 , 24 S.E. 251 (1896).

Where a bill is filed by a guardian, it is not necessary to make him a party defendant on the ground that he would be an heir of the infant if the infant were dead. Durrett v. Davis, 65 Va. (24 Gratt.) 302 (1874).

The reason for the requirement that the heirs of the infants be made parties is twofold: First, the presumed affection of such heirs for the infants; and, second, their personal contingent interest in the land sought to be sold. It is a natural conclusion that those who may become the owners of the land or its proceeds will see that the same is not sacrificed by a guardian who is recreant of the trust imposed upon him. Gee v. McCormick, 142 Va. 173 , 128 S.E. 541 (1925); Newman v. Light, 152 Va. 760 , 148 S.E. 818 (1929). See Bryson v. Turnbull, 194 Va. 528 , 74 S.E.2d 180 (1953).

Doctrine of representation applies. - Land was conveyed in trust for a husband and wife and the survivor of them for life, and at the death of the survivor to their children who would be living at the death of the survivor, and the descendants of such of the children as should then be dead leaving descendants. After the death of the husband, a bill was filed by the wife against the children and trustees for a sale of the land. It was held that a sale decreed upon the bill would bind the descendants of any child dying within the lifetime of the wife, under the doctrine of representation. Faulkner v. Davis, 59 Va. (18 Gratt.) 651 (1868).

But not where interests are hostile. - When the interests of the life tenant and the remaindermen are hostile, infant remaindermen cannot be considered as being before the court by representation by the life tenant. Turner v. Barraud, 102 Va. 324 , 46 S.E. 318 (1904).

Questions of who would be heirs is one of fact. - In order to effectuate the title of a purchaser at a judicial sale of an infant's lands, it must appear from the proceedings that the provisions of this chapter have been substantially complied with. However, the question as to who would be the heirs of an infant if he were dead is one of fact. Newman v. Light, 152 Va. 760 , 148 S.E. 818 (1929).

Finding that infant had no kin cannot be assailed collaterally. - In an action of ejectment, a decree in a suit for the sale of an infant's land was assailed because those who would have been the infant's heirs or distributees, if he had been dead, had not been made defendants to the suit, as required by this section. The bill alleges that the infant had no kin or relations. The commissioner reported that all necessary parties were before the court, and that it was proved that the infant had no relations whatever. And the court, upon the hearing on the report and the evidence returned therewith, confirmed the commissioner's report, and by so doing adjudicated its finding of fact that the infant, if he had been dead, would have had no heirs or distributees at the time of the suit. Nothing appeared on the face of the proceedings sufficient to negative this adjudicated fact. It was held that this finding of fact was final and conclusive, no appeal having been taken, and it could not be assailed collaterally, or affected by any extrinsic evidence. Farant Inv. Corp. v. Francis, 138 Va. 417 , 122 S.E. 141 (1924).

Effect of failure to make presumptive heirs defendants. - In a suit to sell or mortgage an infant's lands, brought by the infant's mother in her own right and as guardian of the infant, there was a failure to comply with this section by making the heirs of an infant parties to the suit. It was insisted that if the court had jurisdiction on any ground, its decree was not void, but at most only voidable, and that the mother had the right to sue as creditor of her husband's estate, having paid his debts and legacies. But as the bill made no charge that the mother was a creditor, and did not show that at the time it was filed she had paid any debt or legacy of her husband, there was nothing in it to show jurisdiction on this ground. Parker v. Stephenson, 127 Va. 431 , 104 S.E. 39 (1920).

Contingent remainderman is not necessary party after failure of contingency. - Where land is devised to a certain person during his natural life, and to his children if he should have lawful issue, and if not, to the testator's grandchildren and their heirs forever, and the life tenant marries and has children, the remainder vests in the children, and the alternative remainder to the grandchildren is defeated; hence the grandchildren are not necessary parties to a proceeding to sell the real estate after the birth of the children of the life tenant. Cooper v. Hepburn, 56 Va. (15 Gratt.) 551 (1860); (decided under former § 8-676).

§§ 8.01-70, 8.01-71.

Repealed by Acts 1990, c. 831, effective January 1, 1991.

Cross references. - As to the abolition of dower and curtesy, see § 64.2-301 .

§ 8.01-72. When death to abate such suit.

A suit instituted under this article shall abate by reason of the death of the person under a disability unless a sale, exchange, lease, encumbrance, redemption, or other disposition of real estate has been confirmed by a decree in such suit.

(Code 1950, § 8-678; 1952, c. 360; 1977, c. 617.)

REVISERS' NOTE.

This section has been rewritten but there has been no change to the substance of the former law that confirmation by the court of its action will allow the court to proceed to a conclusion of the transaction even though the defendant party under a disability may have died subsequent to such confirmation.

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Cross references. - For rule of court on substitution of parties, see Rule 3:17.

§ 8.01-73. Guardian ad litem to be appointed.

In every suit brought under this article, a guardian ad litem shall be appointed for any person under a disability not otherwise represented by a guardian or committee, or trustee appointed pursuant to § 64.2-2003 , and for all persons proceeded against by an order or publication under the designation of "parties unknown" as provided for in § 8.01-316 . The guardian ad litem shall file an answer as such.

(Code 1950, § 8-679; 1952, c. 360; 1972, c. 361; 1977, c. 617; 1997, c. 540.)

REVISERS' NOTE.

Former § 8-679 has been changed by the elimination of useless provisions regarding an answer by infants over the age of fourteen. Since the infant must be made a party, he may presumably answer regardless of age if he wishes to do so.

The guardian ad litem shall also represent the interest of "unknown parties," if any, who are proceeded against by order of publication.

Former § 8-680 (Failure to answer . . .) has been deleted as unnecessary.

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Cross references. - As to appointment of guardian ad litem in other suits, see § 8.01-9 .

As to appointment of guardian ad litem in proceedings for the sale or leasing of certain contingent and other estates, see § 8.01-94 .

Editor's note. - At the direction of the Virginia Code Commission, the reference to " § 37.2-1003" was changed to " § 64.2-2003 " to conform to the recodification of Title 64.1 by Acts 2012, c. 614, effective October 1, 2012.

Michie's Jurisprudence. - For related discussion, see 5C M.J. Deeds, § 8; 9B M.J. Infants, § 65.

CASE NOTES

The failure of a guardian ad litem to answer in his own proper person is error. Gee v. McCormick, 142 Va. 173 , 128 S.E. 541 (1925) (decided under prior law).

Mere formal defects in the answer of the guardian ad litem do not vitiate the proceedings. Coleman v. Virginia Stave & Heading Co., 112 Va. 61 , 70 S.E. 545 (1911) (decided under prior law).

Section does not apply to partition suits. Cottrell v. Mathews, 120 Va. 847 , 92 S.E. 808 (1917) (decided under prior law).

§ 8.01-74. Leases on behalf of persons under disability; new leases.

Leases on behalf of persons under a disability.When a person under a disability is entitled to or bound to renew any lease, any fiduciary on behalf of such person under a disability or any other interested person may apply by motion after reasonable notice to parties having a present interest in the property to be leased, to the circuit court as prescribed in subdivision 3 of § 8.01-261 , and by the order of the court any person appointed by it may, from time to time, surrender or accept a surrender of such lease, or take or make a new lease of the same premises for such term and with such provisions as the court directs. Such reasonable sums as are incurred to renew any such lease shall, with interest thereon, be paid out of the profits of the leasehold premises, and be a charge thereon until payment.
New leases.When it shall appear to a circuit court that the interests of a person under a disability will be promoted by the execution of a new lease, where no prior lease exists, any fiduciary or any other person interested in the subject matter may apply in like summary fashion as stated in subsection A of this section and upon showing to the satisfaction of the court that the provisions therein were complied with, including reasonable notice to parties having a present interest to the property to be leased, the circuit court upon the consideration of the probable length of the disability and the duration of the proposed lease, may order such lease to be executed. Such lease may be renewed or surrendered at any time pursuant to subsection A of this section and under such conditions as the court may direct.
(Code 1950, § 8-674; 1952, c. 360; 1977, c. 617.)

REVISERS' NOTE.

Former § 8-674 has been extended to permit the summary proceedings thereof to apply also to the renewal of leases as well as to new leases.

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Law review. - For note on sale, lease and encumbrance of infants' lands in Virginia, see 47 Va. L. Rev. 534. For note on the need for legislation in the area of the sale of infants' lands, see 51 Va. L. Rev. 355 (1965).

Michie's Jurisprudence. - For related discussion, see 9A M.J. Guardian and Ward, § 25.

CASE NOTES

Recognizes the inviolability of trust estates. - Former provisions in this chapter recognize the inviolability of trust estates from lease, or sale, unless the interests of the cestuis que trustent will be promoted thereby, and unless the rights of no person will be violated. Schroeder v. Woodward, 116 Va. 506 , 82 S.E. 192 (1914) (decided under prior law).

§ 8.01-75. Who not to be purchaser.

At any sale under this article neither a fiduciary for a person under a disability, as defined under this article, nor the guardian ad litem shall be a purchaser directly or indirectly; provided, however, such fiduciary may be a purchaser if the court finds that such a purchase by the fiduciary is in the best interests of the person under a disability.

(Code 1950, § 8-684; 1977, c. 617; 1980, c. 346.)

REVISERS' NOTE.

This section changed former § 8-684 to remove the disqualification of a lessee as a purchaser of the land.

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Cross references. - As to application of this section in suits to sell certain contingent and other estates, see § 8.01-95 .

Law review. - For survey of Virginia law on wills, trusts, and estates for year 1979-80, see 67 Va. L. Rev. 369 (1981).

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

This section was enacted for the benefit and protection of the persons under disability, and not of their guardians, committees or trustees. Redd v. Jones, 71 Va. (30 Gratt.) 123 (1878).

Sale is not void but voidable. - Where land is sold under a decree of court in pursuance of a bill filed by the committee of an insane person and purchased by the committee contrary to this section, the sale is voidable and not void. It is in force until set aside, and this cannot be done collaterally. Cline v. Catron, 63 Va. (22 Gratt.) 378 (1872).

And in some cases might be sustained. - There may be a case in which a purchase made by a guardian or other fiduciary, of the land of his ward or other beneficiary, sold under this chapter, would and ought to be sustained and enforced. Redd v. Jones, 71 Va. (30 Gratt.) 123 (1878).

Bona fide purchaser will be protected. - A sale could not be set aside at the instance of an heir at law of a lunatic on the ground that the committee was himself the real purchaser, where the land had been conveyed to a trustee to secure a bona fide debt, and the party seeking to set aside the sale failed to allege notice to the trustee or the beneficiary of the fact relied on to set aside the sale, especially when the party seeking to set aside the sale herself joined in the deed of trust. Carter v. Allen, 62 Va. (21 Gratt.) 241 (1871).

§ 8.01-76. How proceeds from disposition to be secured and applied; when same may be paid over.

The proceeds of sale, or rents, income, or royalties, arising from the sale or lease, or other disposition, of lands of persons under a disability, whether in a suit for sale or lease thereof, or in a suit for partition, or in condemnation proceedings, shall be invested under the direction of the court for the use and benefit of the persons entitled to the estate; and in case of a trust estate subject to the uses, limitations, and conditions, contained in the writing creating the trust. The court shall take ample security for all investments so made, and from time to time require additional security, if necessary, and make any proper order for the faithful application and safe investment of the fund, and for the management and preservation of any properties or securities in which the same has been invested, and for the protection of the rights of all persons interested therein, whether such rights be vested or contingent, but nothing hereinbefore contained shall prevent the court having charge thereof from directing such funds to be paid over to the legally appointed and qualified fiduciary, as defined in § 8.01-67 , of the person under a disability, whenever the court is satisfied that such fiduciary has executed sufficient bond; or from applying at any time all or any portion thereof to the proper needs and requirements of the person under a disability. However, if such funds do not exceed the amount set forth in subsection B of § 8.01-606 , the court, in its discretion and without the intervention of a fiduciary, may pay such funds to any person deemed appropriate by the court for the use and benefit of a person under a disability, whether such person resides within or without the Commonwealth. Such funds not in excess of the amount set forth in subsection B of § 8.01-606 shall, when paid over to such person deemed appropriate, be treated as personal property.

Upon request of the legally appointed and qualified fiduciary of the person under the disability or the guardian ad litem of the person under the disability, or upon the court's own motion, the court may order that such funds be distributed to a special needs trust as defined in § 64.2-779.10 .

(Code 1950, § 8-685; 1952, c. 360; 1968, c. 380; 1970, c. 355; 1972, c. 159; 1974, c. 139; 1977, c. 617; 1978, c. 419; 1981, c. 129; 2018, c. 124.)

REVISERS' NOTE.

Former § 8-685 has been changed to permit the court to order payment of up to $2500 to "any person deemed appropriate" rather than only to "parents." This does not change the court's consideration that such lesser amount is to be used only for the use and benefit of a person under a disability, whether such person resides within or without the Commonwealth.

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Cross references. - As to application of proceeds under alternative procedure for sale of lands of person under a disability, see § 8.01-80 .

As to applicability of this section in proceedings to sell or lease certain contingent and other estates, see § 8.01-95 .

The 2018 amendments. - The 2018 amendment by c. 124 substituted "the amount set forth in subsection B of § 8.01-606 " for "$4,000" twice in the first paragraph, added the second paragraph, and made stylistic changes.

Law review. - For article, "Updating Virginia's Probate Law," see 4 U. Rich. L. Rev. 223 (1970).

Michie's Jurisprudence. - For related discussion, see 19 M.J. Trusts and Trustees, § 50.

CASE NOTES

Proceeds can be paid only as provided. - After sale of an infant's lands, the court can only have the proceeds paid, for purposes of investment, into the hands of some person, who may or may not be the infant's guardian, upon special bonds being given for the care of the same, as prescribed by a former version of this section. Pope v. Prince, 105 Va. 209 , 52 S.E. 1009 (1906).

§ 8.01-77. What proceeds of sale to pass as real estate.

The proceeds received under the preceding provisions of this article or under Article 9 (§ 8.01-81 et seq.) of this chapter, from the sale or division of real estate of a person under a disability or so much thereof as may remain at such person's death, if such person continue until death incapable from any cause of making a will, shall pass to those who would have been entitled to the land if it had not been sold or divided.

(Code 1950, § 8-689; 1952, c. 360; 1968, c. 66; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 7A M.J. Equitable Conversion, § 8.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

Purpose of section. - It is evident that while the legislature designed to authorize courts of chancery to sell infant's real estate, without which they had no authority to sell, it was at the same time its design that such sale should be made without affecting the infant's rights incident to an ownership of real estate, and without violating the rights of those who would be entitled to the estate, if the infant were dead. Indeed, it would not have been proper, if competent to the legislature, to have authorized a court to deprive the infant of a vested beneficial right incident to his ownership of real estate, he being incapable of assenting thereto, or to have diverted or "violated" the rights of those who would be entitled to the estate at the death of an infant under disability. Vaughan v. Jones, 64 Va. (23 Gratt.) 444 (1873).

Character of land is not to be changed except to extent required. - The legislative intent is made clear; viz., the character and nature of an incompetent's land is not to be changed except to the extent required. Bryson v. Turnbull, 194 Va. 528 , 74 S.E.2d 180 (1953).

And proceeds are impressed with character of land sold. - Upon the involuntary sale, under a judicial decree, of the land of an incompetent person, incapable of dealing with the real estate, the proceeds should be impressed with the character of the land sold and should pass as such at death if the disabilities have not been removed. Bryson v. Turnbull, 194 Va. 528 , 74 S.E.2d 180 (1953).

Where an infant's lands are sold under a decree of court, the proceeds retain the character of realty and pass as real estate. Thus, on the death of a female infant leaving a child, the proceeds will go to the child, and on its death during infancy, the husband surviving, the property will go to the child's heirs on the part of his mother, subject to the life estate of the husband, the impress of realty never having been removed. Vaughan v. Jones, 64 Va. (23 Gratt.) 444 (1873).

The conversion of an infant's real estate into money does not change its character as realty, and the proceeds of the sale retain the impress of real estate until the infant attains the age of 21 (now 18) years. Rinker v. Streit, 73 Va. (33 Gratt.) 663 (1873).

Section applies in suits for partition. - Where a suit for the sale of real property under a will, although not in the usual form and procedure, was more or less, in effect, a suit for the partition of real estate in which all parties joined and consented, the proceeds passed as real estate. Rinker v. Trout, 171 Va. 327 , 198 S.E. 913 (1938).

§ 8.01-78. Alternate procedure for sale of real estate of person under disability.

If the personal estate of any person under a disability for whom a fiduciary has been appointed under any of the provisions of Title 64.2, be insufficient for the discharge of his debts or if the personal estate or residue thereof after payment of debts and the rents and profits of his real estate be insufficient for his maintenance and that of his family, if any, the fiduciary of his estate may petition a circuit court for authority to mortgage, lease or sell so much of the real estate of such person as may be necessary for the purposes aforesaid, or any of them, setting forth in the petition the particulars and amount of the estate, real and personal, and a statement of the application of any personal estate, and debts and demands existing against the estate. Those persons who would be heirs or distributees of the person under a disability if he had died at the time of commencement of the proceeding need not be made parties defendant to a proceeding pursuant to this section.

(Code 1950, § 8-689.1; 1952, c. 360; 1977, c. 617; 1983, c. 459.)

Cross references. - As to sale of contingent estates, see §§ 8.01-94 , 8.01-95 .

Editor's note. - At the direction of the Virginia Code Commission, substituted "Title 64.2" for "Title 37.2" to conform to the recodification of Title 64.1.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

Power to sell lunatic's realty depends on statute. - The committee of a lunatic has no power except as prescribed by statute to dispose of the real estate of a lunatic. Lake v. Hope, 116 Va. 687 , 82 S.E. 738 (1914).

No statute authorizes purchase of realty by committee. - While this section provides when and where a committee may petition for the sale, lease, or mortgage of the real estate of his ward, there is no specific statute authorizing a committee to purchase real estate, but Boisseau v. Boisseau, 79 Va. 73 , 52 Am. R. 616 (1884), approves the rule that, with the sanction of a court, the property of an infant may be converted by his guardian from personalty into real estate when the conversion appears to be for the ward's benefit. Somers v. Godwin, 182 Va. 144 , 27 S.E.2d 909 (1943).

§ 8.01-79. Same; reference of petition to commissioner.

On the presenting of such petition it may be referred to a commissioner in chancery or to a special commissioner appointed by the court, to inquire into and report upon the matters therein contained, whose duty it shall be to make such inquiry, to give notice to and hear all parties interested in such real estate and to report thereon with all convenient speed.

(Code 1950, § 8-689.2; 1977, c. 617.)

§ 8.01-80. Same; action of court on report; application of proceeds of transaction.

If upon the filing of the report and examination of the matter it shall appear to the court to be proper, an order shall be entered for the mortgaging, leasing, or sale, on such terms and conditions as the court may deem proper, of so much of such real estate as may be necessary; but no conveyance shall be executed until such shall have been confirmed by the court. The proceeds of such transactions shall be secured and applied under the order of the court.

(Code 1950, § 8-689.3; 1977, c. 617.)

REVISERS' NOTE.

The last sentence of former § 8-689.3, which was limited to sales, has been expanded to include mortgaging and leasing.

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Michie's Jurisprudence. - For related discussion, see 9B M.J. Infants, §§ 55, 59.

Article 9. Partition.

§ 8.01-81. Who may compel partition of land; jurisdiction; validation of certain partitions of mineral rights; when shares of two or more laid off together.

Tenants in common, joint tenants, executors with the power to sell, and coparceners of real property, including mineral rights east and south of the Clinch River, shall be compellable to make partition and may compel partition, but in the case of an executor only if the power of sale is properly exercisable at that time under the circumstances; and a lien creditor or any owner of undivided estate in real estate may also compel partition for the purpose of subjecting the estate of his debtor or the rents and profits thereof to the satisfaction of his lien. Any court having general equity jurisdiction shall have jurisdiction in cases of partition, and in the exercise of such jurisdiction, shall order partition in kind if the real property in question is susceptible to a practicable division and may take cognizance of all questions of law affecting the legal title that may arise in any proceedings, between such tenants in common, joint tenants, executors with the power to sell, coparceners and lien creditors.

Any two or more of the parties, if they so elect, may have their shares laid off together when partition can be conveniently made in that way. If the court orders partition in kind, the court may require that one or more parties pay one or more parties' amounts so that the payments, taken together with the court-determined value of the in-kind distributions to the parties, will make the partition in kind just and proportionate in value to the fractional interests held. If the court orders partition in kind, the court shall allocate to the parties that are unknown, unlocatable, or the subject of a default judgment a part of the property representing the combined interests of such parties as determined by the court, and such part of the property shall remain undivided.

All partitions of mineral rights heretofore had are hereby validated.

(Code 1950, § 8-690; 1964, c. 167; 1968, c. 412; 1977, c. 617; 1984, c. 226; 2020, cc. 115, 193.)

REVISERS' NOTE.

The term "person under a disability" has been substituted for various individuals specified in former sections of the predecessor Title 8 article.

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Cross references. - As to venue of suit for partition, see § 8.01-261 , subdivision 3.

As to partition of estate in which homestead exemption is claimed, see § 34-8 .

As to necessity for deed in voluntary partition by coparceners, see § 55.1-101 .

Editor's note. - Acts 2020, cc. 115 and 193, cl. 3 provides: "That the provisions of this act shall only apply to partition actions filed on or after July 1, 2020."

The 2020 amendments. - The 2020 amendments by cc. 115 and 193 are identical, and in the first paragraph, inserted "shall order partition in kind if the real property in question is susceptible to a practicable division and" in the last sentence; added the second paragraph; and made stylistic changes. For applicability clause, see Editor's note.

Law review. - For note on sale, lease and encumbrance of infants' lands in Virginia, see 47 Va. L. Rev. 534 (1961). For note on creditors' rights and cotenancies, see 48 Va. L. Rev. 405 (1962). For comment on extension of entireties doctrine, see 20 Wash. & Lee L. Rev. 260 (1963). For article, "The Virginia Land Trust - An Overlooked Title Holding Device for Investment, Business and Estate Planning Purposes," see 30 Wash. & Lee L. Rev. 73 (1973).

For 2003/2004 survey of real estate and land use law, see 39 U. Rich. L. Rev. 357 (2004).

Michie's Jurisprudence. - For related discussion, see 5A M.J. Cotenancy, § 45; 9B M.J. Infants, § 55; 14A M.J. Partition, §§ 7, 8, 11, 13, 15, 17, 41.

CASE NOTES

I. Decisions Under Current Law.
II. Decisions Under Prior Law.

I. DECISIONS UNDER CURRENT LAW.

A. GENERAL CONSIDERATION.

Wife held entitled to half of proceeds although not named in deed to land sold. - In an action brought by a divorced wife to partition a parcel of land where an examination of the record, the various exhibits filed, and the testimony of the witnesses established clearly and satisfactorily that throughout the period of their marriage and thereafter until the wife filed her bill of complaint seeking partition of the parties, both parties were under the impression that the land had been conveyed to them jointly and as tenants by the entirety, but where, because the wife was under the age of 21, the deed to the property of husband and wife was taken in name of the husband alone, the divorced wife still had an undivided one-half interest in the real property and, the property having been sold by agreement, the trial court properly decreed that each party was entitled to one half of the proceeds. Pleasants v. Pleasants, 221 Va. 1017 , 277 S.E.2d 170 (1981).

Divorce proceeding. - The method of accomplishing partition in a divorce proceeding differs from the method of arriving at a monetary award. The amount of a monetary award is determined after considering 11 specific factors, § 20-107.3 E, and is based on the equities and the rights and interests of each party in the marital property. On the other hand, partition, an entirely statutory procedure, is governed by this article since no directions for its implementation are contained in § 20-107.3 . Morris v. Morris, 3 Va. App. 303, 349 S.E.2d 661 (1986).

Partition under subsection C of § 20-107.3 is governed by this article. Clayberg v. Clayberg, 4 Va. App. 218, 355 S.E.2d 902 (1987).

Partition as now permitted in the equitable distribution statute is no different from that permitted prior to the adoption of § 20-107.3 , except that it may now be done in the divorce case rather than as a separate proceeding. However, when it is done, it must conform to the mandate of this article. Clayberg v. Clayberg, 4 Va. App. 218, 355 S.E.2d 902 (1987).

Partition of real property in a divorce proceeding is governed by this section. Mains v. Mains, Nos. 0039-92-4, 0103-92-4, 1993 Va. App. LEXIS 362 (Ct. of Appeals Oct. 23, 1990).

Trial court did not err in ordering the sale of jointly owned property when the parties were unable to agree on the value of the properties for purposes of an allotment. Mains v. Mains, Nos. 0039-92-4, 0103-92-4, 1993 Va. App. LEXIS 362 (Ct. of Appeals Oct. 23, 1990).

Partition procedures for § 20-107.3 . - Section 20-107.3 does not contain provisions directing how partition shall be conducted; therefore the procedures for distribution of the property and/or the proceeds of its sale, as disclosed by the partition statutes, and court decisions interpreting those statutes, must be followed. Fitchett v. Fitchett, 6 Va. App. 562, 370 S.E.2d 318 (1988).

Partition must be conducted in ordinary course of docket. - Where trial court is empowered to order partition, the court has no right to defer such action but must conduct the procedure in the ordinary course of managing its docket. Fitchett v. Fitchett, 6 Va. App. 562, 370 S.E.2d 318 (1988).

B. WHAT MAY BE PARTITIONED.

A joint tenancy with right of survivorship, as at common law, is subject to partition by a judgment lien creditor of one of the several joint tenants. Jones v. Conwell, 227 Va. 176 , 314 S.E.2d 61 (1984).

This section prohibits the partitioning of mineral rights west and north of the Clinch River; therefore, if a court has no authority to partition mineral rights west and north of the Clinch River, a fortiori, such mineral rights cannot be partitioned without the consent of all cotenants. Chosar Corp. v. Owens, 235 Va. 660 , 370 S.E.2d 305 (1988).

Tenant's conduct of mining operations was such an appropriation of a specific portion of the Splashdam seam, located west and north of the Clinch River, which was in effect, a unilateral partitioning of the mineral estate, and the trial court correctly ruled that tenant's mining excluded the nonconsenting cotenants from their interests in the property. Chosar Corp. v. Owens, 235 Va. 660 , 370 S.E.2d 305 (1988).

C. WHO MAY BE COMPELLED TO MAKE PARTITION.

Joint tenants with right of survivorship. - The words "joint tenants" as used in this section were intended by the legislature to include joint tenants with right of survivorship and, pursuant to this section, such tenant shall be compellable to make partition at the instance of a judgment lien creditor. Jones v. Conwell, 227 Va. 176 , 314 S.E.2d 61 (1984).

Chapter 7 trustee's power to sell estate property for purpose of satisfying creditors' claims was not limited to debtor's state law rights to partition that property as a joint tenant. The Chapter 7 trustee had the power, as a hypothetical lien creditor, to compel partition of the property under Virginia Code, but what was more, if the property could not be divided, the Bankruptcy Code allowed the trustee to sell the undivided joint property so long as certain conditions were met. Scott v. Hoole (In re Hoole),, 2018 Bankr. LEXIS 810 (Bankr. W.D. Va. Mar. 21, 2018).

Where the life tenant is not a tenant in common with the remaindermen, it follows that he has no right to compel partition of the property against the owners of the remainder interest. Whitby v. Overton, 243 Va. 20 , 413 S.E.2d 42 (1992).

Trial court properly entered summary judgment for the remaindermen children in a suit seeking to compel partition of property brought by their mother, who held a life estate interest in the property, as the mother was not a tenant in common with the children; the mother's status as a tenant in common with the father as to the life estate was not sufficient to compel partition of the whole estate. Maitland v. Allen, 267 Va. 714 , 594 S.E.2d 918, 2004 Va. LEXIS 58 (2004).

D. IMPROVEMENTS.

Compensation of joint tenant. - In a partition suit, a joint tenant is usually entitled to compensation for permanent improvements he has made to the property. White v. Pleasants, 227 Va. 508 , 317 S.E.2d 489 (1984).

II. DECISIONS UNDER PRIOR LAW.

A. GENERAL CONSIDERATION.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

Partition defined. - Partition is the division between two or more persons of lands which they jointly own as coparceners, joint tenants or tenants in common. Martin v. Martin, 112 Va. 731 , 72 S.E. 680 (1911).

A partition proceeding is entirely statutory, and finds its authority in this section. Phillips v. Wells, 147 Va. 1030 , 133 S.E. 581 (1926); Price v. Simpson, 182 Va. 530 , 29 S.E.2d 394 (1944).

B. JURISDICTION.

1. IN GENERAL.

Section confers jurisdiction on courts of equity. - The jurisdiction of equity to decree partition of lands and take cognizance of all questions of law arising therein affecting title is settled by this section. Effinger v. Hall, 81 Va. 94 (1885); Davis v. Tebbs, 81 Va. 600 (1886).

This section simply confers upon the courts of equity the same powers exercised by the common-law courts in the partition of land and, in addition, authorizes courts of equity to settle all questions of law affecting legal title to the land involved. Cauthorn v. Cauthorn, 196 Va. 614 , 85 S.E.2d 256 (1955); Nickels v. Nickels, 197 Va. 498 , 90 S.E.2d 116 (1955).

Jurisdiction is not inherent. - This section and § 8.01-83 create and confer special statutory jurisdiction upon courts of equity for the partition and sale of land. Failure to substantially comply with the provisions of the statutes is fatal to the proceedings. Equity has no inherent jurisdiction to order a sale of land for the purpose of partition. Cauthorn v. Cauthorn, 196 Va. 614 , 85 S.E.2d 256 (1955); Nickels v. Nickels, 197 Va. 498 , 90 S.E.2d 116 (1955).

Jurisdiction may be invoked as a matter of right. - Courts of equity have jurisdiction of suits for the partition of real estate, and the application for the exercise of that jurisdiction is not now addressed to the sound discretion of the court, but may be made as a matter of right. Grove v. Grove, 100 Va. 556 , 42 S.E. 312 (1902).

No jurisdiction to partition lands in other states. - The courts of this State have no jurisdiction to decree a partition of lands lying in another state, although all the parties are before the court. Poindexter v. Burwell, 82 Va. 507 (1886); Wimer v. Wimer, 82 Va. 890 , 5 S.E. 536 (1886); Pillow v. Southwest Va. Imp. Co., 92 Va. 144 , 23 S.E. 32 (1895).

Partition of real property in kind was an ancient heritage of equity jurisdiction, existing at common law independently of statute. To such extent the statutes are only declaratory of the common law. Leonard v. Boswell, 197 Va. 713 , 90 S.E.2d 872 (1956).

But jurisdiction has been materially enlarged by statute. - The Virginia statutes materially enlarge equity jurisdiction in suits for partition; new powers are conferred which were theretofore nonexistent. Thus, the right of a cotenant to an enforced sale where partition in kind is impracticable, is a right created by statute. Leonard v. Boswell, 197 Va. 713 , 90 S.E.2d 872 (1956).

This section does not authorize a court of equity to sell or allot any undivided interest in land. This power is conferred upon courts of equity by § 8.01-83 . Cauthorn v. Cauthorn, 196 Va. 614 , 85 S.E.2d 256 (1955); Nickels v. Nickels, 197 Va. 498 , 90 S.E.2d 116 (1955).

Court may do all necessary to afford complete relief. - While this section defines the procedure to be followed in a suit for partition, there is no inhibition restricting the powers of a court of equity to do all that is necessary to be done in order that complete relief may be afforded the parties. Price v. Simpson, 182 Va. 530 , 29 S.E.2d 394 (1944).

It is now settled law that if a suit be properly one for partition, the court, having jurisdiction of the parties and the subject matter, may proceed to give complete relief. Even in matters of purely legal right the equitable as well as the legal rights of the parties may be determined. Leonard v. Boswell, 197 Va. 713 , 90 S.E.2d 872 (1956).

It may pass upon accounts of liens and priorities. - In suits for partition courts of equity have authority to pass upon all questions necessary to justice between the parties, such as accounts of liens and priorities on the lands to be partitioned. Hinton v. Bland, 81 Va. 588 (1886).

Court does not act merely in a ministerial capacity. - In partition suits a court of equity, acting under authority conferred by statute, does not act merely in a ministerial character and in obedience to the call of the parties who have a right to the partition, but its action is founded upon its general jurisdiction, and its relief is granted and administered ex aequo et bono according to its own notions of justice and equity. Leonard v. Boswell, 197 Va. 713 , 90 S.E.2d 872 (1956).

Consent decree pursuant to request for partition. - Since the competent parties to a partition suit could have created among themselves a joint tenancy with the right of survivorship as at common law, the court having jurisdiction of the parties and the subject matter, could, at their request, appoint commissioners to act in their behalf and thus accomplish the same result through the entry of a consent decree. Leonard v. Boswell, 197 Va. 713 , 90 S.E.2d 872 (1956).

Compensation for improvements. - As a general rule a joint tenant who at his own expense places permanent improvements upon common property is entitled in a partition suit to compensation for the improvements. This is so, whether his cotenant agreed thereto or not. Compensation of this kind is allowable not as a matter of legal right but purely as a desire of a court of equity to do justice and to prevent one tenant from becoming enriched at the expense of another. Shotwell v. Shotwell, 202 Va. 613 , 119 S.E.2d 251 (1961).

In the absence of consent on the part of the cotenant the amount of compensation for permanent improvements is limited to the amount by which the value of the common property has been enhanced. Shotwell v. Shotwell, 202 Va. 613 , 119 S.E.2d 251 (1961).

2. QUESTIONS OF LAW AFFECTING LEGAL TITLE.

Court may take cognizance of all questions affecting legal title. - In this State the rule is well established that when a court of equity acquires jurisdiction of a cause for any purpose, it will retain it, and do complete justice between the parties, enforcing, if necessary, legal rights and applying legal remedies to accomplish that end. This is especially true of suits for partition, where, by express provision of this section, a court of equity may take cognizance of all questions of law affecting the legal title that may arise in any proceeding. Laurel Creek Coal & Coke Co. v. Browning, 99 Va. 528 , 39 S.E. 156 (1901). See Bradley v. Zehmer, 82 Va. 685 (1886); Fry v. Payne, 82 Va. 759 , 1 S.E. 197 (1887); Price v. Simpson, 182 Va. 530 , 29 S.E.2d 394 (1944).

Power is confined to claims of parties who may compel or be compelled to make partition. - By the terms of this section the power of courts of equity to adjudicate questions of law affecting the legal title in partition suits is confined to the conflicting claims of parties who may compel or be compelled to make partition. Miller v. Armentrout, 196 Va. 32 , 82 S.E.2d 491 (1954).

Purpose of this provision is to prevent delay. - The object of the provision in this section that the court may take cognizance of all questions of law affecting the legal title to the property was to obviate the delays and difficulties which frequently arose in partition suits where questions of title were involved. Adkins v. Adkins, 117 Va. 445 , 85 S.E. 490 (1915).

It is constitutional. - The provision of this section authorizing a court of equity in a partition suit to settle all questions of law that may arise in the case does not violate the constitutional provision guaranteeing the right to trial by jury. Pillow v. Southwest Va. Imp. Co., 92 Va. 144 , 23 S.E. 32 (1895).

It extends jurisdiction of courts in partition suits. - In the enactment of this section, the legislature intended to broaden and extend the jurisdiction of the courts in partition suits. Seefried v. Clarke, 113 Va. 365 , 74 S.E. 204 (1912).

But question must arise as incident to partition. - In order to give the court jurisdiction in a partition suit under this section of a question affecting the legal title, the question must arise as an incident to a partition, and must be such as to require a decision before the partition can be satisfactorily made as between the persons at whose instance or in whose behalf the partition is to be made. Bailey v. Johnson, 118 Va. 505 , 88 S.E. 62 (1916).

Independent hostile claim cannot be considered. - An independent hostile claim going to the whole property involved, and denying in toto and ab initio the title of the parties claiming the joint ownership of land, cannot be set up and adjudicated in a partition suit brought by the latter. The provision in giving courts of equity jurisdiction to pass upon "all questions of law affecting the legal title" was never intended to make a proceeding under this section a substitute for an action of ejectment. Bailey v. Johnson, 118 Va. 505 , 88 S.E. 62 (1916).

Thus, jurisdiction does not extend to matters of general indebtedness. - The provision that a court of equity "may take cognizance of all questions of law affecting the legal title that may arise," is applicable only to questions affecting the legal title to the subject of partition, and not to matters of general indebtedness between the parties. Adkins v. Adkins, 117 Va. 445 , 85 S.E. 490 (1915).

Having no relation to subject of partition. - There is no provision for the settlement in partition suits of all controversies that may arise between tenants in common, growing out of their general indebtedness to each other, which have no relation to or bearing upon the title to the subject of partition. Adkins v. Adkins, 117 Va. 445 , 85 S.E. 490 (1915).

A claim of adverse possession does not prevent the operation of this section. Fry v. Payne, 82 Va. 759 , 1 S.E. 197 (1886).

And defendant cannot defeat jurisdiction by adverse claim. - A suit for partition cannot be made a substitute for an action of ejectment; but a defendant to a bill which states a good case for partition cannot defeat the jurisdiction in equity merely by denying in toto and ab initio the complainant's title, and asserting in himself a title independent of and hostile to that under which the complainant claims. Goodman v. Goodman, 124 Va. 579 , 98 S.E. 625 (1919).

Where he claims under one who held jointly with complainant. - While a suit for partition cannot be made a substitute for an action of ejectment, yet if the defendant in such a suit claims under one who was a joint owner with the complainant, or those under whom he claims, the defendant cannot defeat the right of the complainant to have his legal rights settled in a suit for partition by merely alleging and proving that he denies the rights of the complainant and holds adversely to him. Pillow v. Southwest Va. Imp. Co., 92 Va. 144 , 23 S.E. 32 (1895). See also, Morgan v. Hailey, 107 Va. 331 , 58 S.E. 564 (1907).

Decree settling adverse claim cannot be assailed collaterally. - When a court of equity has taken jurisdiction to partition land to the whole of which the defendant claims legal title, the decree of the court, even if erroneous, cannot be collaterally assailed in another suit. Morgan v. Hailey, 107 Va. 331 , 58 S.E. 564 (1907).

Court may set aside deed to part of land. - In the exercise of its jurisdiction to take cognizance of all questions of law affecting the legal title to the property to be partitioned, a court may set aside a deed to one of the parties of a part of the land to be divided, either because the grantor had no power to make the deed, or because of his mental incapacity. Seefried v. Clarke, 113 Va. 365 , 74 S.E. 204 (1912).

Decision upholding deed is res adjudicata in subsequent suit. - In a suit for partition of land, one of the co-owners, being a nonresident, was served with process by publication. A deed from the nonresident co-owner was put in evidence and held sufficient to transfer the grantor's interest in the land to be partitioned. In a subsequent suit brought by the grantor for partition of the same land, it was held that, the court in the first suit having had jurisdiction of the parties and the subject matter, and the authority, pursuant to this section, to take cognizance of all questions of law affecting the legal title that might arise in the proceedings, its decision as to the sufficiency of the deed was res adjudicata, and could not be collaterally attacked, though the grantor was not personally served with process in the first suit. Beattie v. Wilkinson, 36 F. 646 (W.D. Va. 1888).

C. WHAT MAY BE PARTITIONED.

Equitable estates are subject to partition. - Under the provisions of this section, a court of equity has jurisdiction to partition equitable estates in land. So where a decedent was the complete equitable owner of a lot at the time of his death, equity may decree that the lot be sold for partition among his heirs at law, upon a bill filed by some of the heirs against the remaining heirs for partition. Stewart v. Stewart, 122 Va. 642 , 95 S.E. 388 (1918).

The fact that land is under lease for a term of years is no objection to a partition thereof in this State, by virtue of § 8.01-91 . Lucy v. Kelly, 117 Va. 318 , 84 S.E. 661 (1915).

Property subject to liens may be partitioned. - Where some of the cotenants have sold their undivided interest in lands and reserved liens for the unpaid purchase money, the existence of these liens on the undivided shares does not, per se, prevent the division of the common property among the owners. The liens will be considered as attaching to the parcels under the partition in severalty. Wright v. Strother, 76 Va. 857 (1882).

Right of lien creditor to have partition set aside. - Where partition has been made among cotenants, it will not be disturbed at the instance of the lien creditors, unless they show that it is unequal and unfair as respects the security for their debts. Wright v. Strother, 76 Va. 857 (1882).

All lands of original cotenancy need not be included. - The rule that all the lands of the original cotenancy should be included does not prevail in Virginia. Thus, where a decedent left several tracts of land susceptible of partition among his heirs at law, there might be partition of a single tract without the others. Price v. Simpson, 182 Va. 530 , 29 S.E.2d 394 (1944).

D. WHO MAY COMPEL PARTITION.

Claimants under common ancestor. - Where, although the allegations of a bill for partition are meager, yet upon a natural and reasonable interpretation it makes out a case in which the complainant and defendant claim under a common ancestor, the complainant claiming an undivided one fourth of the land by inheritance, and the defendant an undivided three fourths, partly by inheritance and partly by purchase, the complainant and defendant are coparceners as to a part and tenants in common as to the residue of the land, the parties are clearly within the express terms of this section, and, no objection to the form or sufficiency of the bill being interposed, it is a good bill for partition. Goodman v. Goodman, 124 Va. 579 , 98 S.E. 625 (1919).

Life tenants. - Pursuant to this section and § 8.01-94 , a tenant for life in an undivided moiety of property may maintain a suit against those who own the estate in remainder of that moiety, whether they are in esse or not, and the fee simple owners of the other moiety, and compel partition of the property, and, if the property is not susceptible of partition in kind, the life tenant may have a sale and division of the proceeds. Carneal v. Lynch, 91 Va. 114 , 20 S.E. 959 (1895).

The fact that one owns a life estate in the whole of a tract and the remainder in fee in only one half thereof does not bar his right to maintain a suit for partition of the land. Lucy v. Kelly, 117 Va. 318 , 84 S.E. 661 (1915).

Reversioners and remaindermen. - A reversioner or remainderman cannot compel partition during the continuance of the particular estate. Seibel v. Rapp, 85 Va. 28 , 6 S.E. 478 (1888).

Under this section one of several remaindermen cannot compel a partition of the land during the continuance of the life estate, unless, perhaps, he has acquired the life estate. Powell v. Tilson, 161 Va. 318 , 170 S.E. 750 (1933). See Lucy v. Kelly, 117 Va. 318 , 84 S.E. 661 (1915).

Holder of legal title to entire property. - A party holding the legal title to the whole of a tract of land in an undivided two thirds of which others own the complete equitable estate, with the right to call for the legal title, may, under the liberal provisions of this section, file a bill against such others for a partition of the whole. Hagan v. Taylor, 110 Va. 9 , 65 S.E. 487 (1909).

Guardians. - A guardian of infants may maintain a suit for partition of real estate held jointly by the infants and other adult persons. Cooper v. Hepburn, 56 Va. (15 Gratt.) 551 (1860); Zirkle v. McCue, 67 Va. (26 Gratt.) 517 (1875).

Lien creditors. - A lien creditor may compel partition of land, or a sale thereof when partition cannot conveniently be made. Peatross v. Gray, 181 Va. 847 , 27 S.E.2d 203 (1943).

Suit by widow for partition of husband's estate. - A widow filed her bill, in which she asked to have her interests and those of her children, whose guardian she was, in her husband's estate ascertained and laid off, to have her dower allotted in kind or commuted in money, and the interests of her children ascertained and placed under her control as their guardian, and for a settlement of the rights of all the parties. The administrator and children of the husband were made defendants, and the case regularly proceeded in. It was held that this was a suit for partition, and the widow might properly bring it. Zirkle v. McCue, 67 Va. (26 Gratt.) 517 (1875).

Tenants in common. - A bill may be filed by one tenant in common against another for the purpose of having partition of the property held in common, and to subject the interest of the defendant to a deed of trust thereon for the benefit of the complainant. Price v. Crozier, 101 Va. 644 , 44 S.E. 890 (1903).

Tenants by entirety. - Under this section partition is not compellable between tenants by entirety, but that end is reached through § 55-20, which makes tenants by entirety tenants in common, in turn modified by § 55-21 where it is declared that this conversion shall not take place when it is manifestly not intended. Allen v. Parkey, 154 Va. 739 , 149 S.E. 615 (1929).

Persons without interest. - Persons claiming under a party whose interest in land has been extinguished have no standing in court as complainants in a partition suit. Stevens v. McCormick, 90 Va. 735 , 19 S.E. 742 (1894).

E. WHO MAY BE COMPELLED TO MAKE PARTITION.

Infants as well as adults are included within the provision of this section that tenants in common, joint tenants, and coparceners shall be compellable to make partition. Payne v. Payne, 179 Va. 562 , 19 S.E.2d 690 (1942).

F. IMPROVEMENTS.

Burden is on the person claiming reimbursement for improvements to prove the actual construction of the improvements, and second, to show the amount by which the value of the common property is enhanced. Shotwell v. Shotwell, 202 Va. 613 , 119 S.E.2d 251 (1961).

Generally, a tenant in common, joint tenant, or coparcener who places permanent improvements upon common property at his own expense is entitled to compensation in the event of partition, but before an allowance can be considered he must prove what improvements were made and show the amount by which the value of the property has been enhanced. Rutledge v. Rutledge, 204 Va. 522 , 132 S.E.2d 469 (1963).

G. PLEADING AND PRACTICE.

Section does not restrict courts as to procedure. - No restrictions or limitations are placed upon courts of equity by this section in the matter of procedure; they are left free to adopt such method as may be best suited to meet the exigencies of the particular case. Any instrumentality that the court may call to its assistance, whether it be a master in chancery or a special board of commissioners, is advisory merely. The question must at last be left to the determination of the court upon the law and the evidence. Phillips v. Dulaney, 114 Va. 681 , 77 S.E. 449 (1913).

All original parties in interest need not be convened. - Where a decedent dies intestate, leaving several tracts or parcels of land susceptible of partition among his heirs at law, it is not essential that all original parties in interest and their alienees, if any, be convened and all the real estate left by the decedent be included in a suit for partition. Price v. Simpson, 182 Va. 530 , 29 S.E.2d 394 (1944).

Bill need not make formal deraignment of title. - It is not necessary in a bill for partition to make a formal deraignment of title, or any deraignment further than is necessary to show how the parties became coparceners and entitled to partition. Goodman v. Goodman, 124 Va. 579 , 98 S.E. 625 (1919).

But it must show relationship entitling plaintiff to partition. - The complainant in a partition suit must aver and prove that he occupies such a relationship to the defendant as entitles him to invoke the equity jurisdiction. If his bill fails to show this, it is bad on demurrer. If it does show this, and the answer denies it, then upon a hearing on bill and answer, either with or without a replication, the bill will be dismissed. Goodman v. Goodman, 124 Va. 579 , 98 S.E. 625 (1919).

Residuary legatee under cotenant's will not necessary party. - A residuary legatee under a will was not a necessary party to a partition suit directed at certain land in which the testator owned a fractional interest. Salvation Army v. Campbell, 202 Va. 223 , 116 S.E.2d 334 (1960).

Bill held sufficient. - A bill averring that plaintiff is entitled, under a duly probated will, to part of a tract of land held by defendant, who owns the other part under the same will, and praying for partition, is sufficient, though it fails to aver that defendant purchased his part with notice of plaintiff's claim, where it sufficiently appears that defendant was put on inquiry, and thus was affected with knowledge of all he might have discovered had he done his duty. Davis v. Tebbs, 81 Va. 600 (1886).

CIRCUIT COURT OPINIONS

Equitable tenants in common. - Although a timber company, which owned an undivided timber interest, was not technically a tenant in common with fee simple interest owners, the company was an equitable tenant in common; therefore, the company could pursue an equitable remedy of partition under § 8.01-81 . It would be inequitable to deny the timber company an opportunity to demonstrate that a partition of the entire property could be made, and its interest thereby realized, in the absence of any prejudice to the interest of the fee simple interest owners. Bluefield Timber, L.L.C. v. Harlan Lee Land, L.L.C., 72 Va. Cir. 277, 2006 Va. Cir. LEXIS 317 (Lee County 2006).

§ 8.01-81.1. Determination of value.

Except as otherwise provided in subsections B and C, the court in every partition action shall order an appraisal pursuant to subsection D, and such appraisal shall inform the court's determination of fair market value under subsection F. The expense of the appraisal shall be taxed as costs.
If all parties have agreed to the value of the property or to another method of valuation, the court shall adopt such value or the value produced by the agreed-upon method of valuation.
If the court determines that the evidentiary value of an appraisal is outweighed by the cost of the appraisal, the court, after an evidentiary hearing, shall enter an order to determine the fair market value for the property.
If the court orders an appraisal, the court shall appoint a disinterested real estate appraiser licensed in the Commonwealth to assist the court in determining the fair market value of the property assuming sole ownership of the fee simple estate. Upon completion of the appraisal, the appraiser shall file a sworn or verified appraisal with the court and shall, within three business days of such filing, mail a notice of filing to all counsel of record stating:
1. The appraised fair market value of the property;
2. That the appraisal is available at the clerk's office; and
3. That a party may file with the court an objection to the appraisal not later than 30 days after the notice is sent, stating the grounds for the objection.
If an appraisal is filed with the court pursuant to subsection D, the court shall conduct a hearing to determine the fair market value of the property not sooner than 31 days after a copy of the notice of the appraisal is sent to each party under subsection D, whether or not an objection to the appraisal is filed under subdivision D 3. In addition to the court-ordered appraisal, the court may consider any other evidence of value offered by a party.
After a hearing under subsection E, but before considering the merits of the partition action, the court shall enter an order determining the fair market value of the property.
(2020, cc. 115, 193.)

Editor's note. - Acts 2020, cc. 115 and 193, cl. 3 provides: "That the provisions of this act shall only apply to partition actions filed on or after July 1, 2020."

§ 8.01-82.

Repealed by Acts 2020, cc. 115 and 193, cl. 2.

Cross references. - For current provisions as to when shares of two or more may be laid off together, see § 8.01-81 .

Editor's note. - Former § 8.01-82 , pertaining to when shares of two or more were laid off together, derived from Code 1950, § 8-691; 1977, c. 617.

Acts 2020, cc. 115 and 193, cl. 3 provides: "That the provisions of this act shall only apply to partition actions filed on or after July 1, 2020."

§ 8.01-83. Allotment to one or more parties, or sale, in lieu of partition.

If at least one party to a partition action petitions the court for allotment or for a partition sale, the court may order allotment pursuant to this section or, if the court determines allotment is not practicable, a sale pursuant to § 8.01-83.1 .
Before a court is authorized to allot or sell an undivided interest in a partition action, it shall first determine that partition in kind cannot be practicably made. When the subject land is not susceptible to a practicable division in kind, the court shall next consider an allotment of the entire subject property to any one or more of the parties who will accept it for a price equal to the value determined pursuant to § 8.01-81.1 , and pay therefor to the other parties such sums of money as their interest therein may entitle them to receive, notwithstanding that any of those entitled may be a person with a disability. If a purchaser is entitled to a share of the proceeds of the sale, the purchaser is entitled to a credit against the price in an amount equal to the purchaser's share of the proceeds. The court shall make distribution of the proceeds of the allotment according to the respective rights of those entitled, taking care, when there are creditors of any deceased person who was a tenant in common, joint tenant, or coparcener, to have the proceeds of such deceased person's part applied according to the rights of such creditors.
1. When the court considers allotment, it shall require the party or parties seeking allotment to notify all of the other parties (i) that the property may be allotted to any one or more of them who is willing to accept it and (ii) of the required price.
2. In the event that multiple parties seek allotment and disputes arise concerning such allotment, the court shall consider the following in making such allotment:
  1. Evidence of the collective duration of ownership or possession of the property by a party and one or more predecessors in title or predecessors in possession to the party who are or were related to the party or each other;
  2. A party's sentimental attachment to the property, including any attachment arising because the property has ancestral or other unique or special value to the party;
  3. The lawful use being made of the property by a party and the degree to which the party would be harmed if the party could not continue the same use of the property;
  4. The degree to which the parties have contributed their pro rata share of the property taxes, insurance, and other expenses associated with maintaining ownership of the property or have contributed to the physical improvement, maintenance, or upkeep of the property; and
  5. Any other relevant factor. The court shall not consider any one of the preceding factors to be dispositive without weighing the totality of all relevant factors and circumstances.
3. After the court determines which party or parties will participate in the allotment, the court shall notify all the parties of its decision and of the amount each party is to pay or receive for its allotted share pursuant to either this subsection or subsection C. The court shall set a date, not sooner than 60 days after notification to the parties, by which each party allotted a share of the property must pay the amount due to the court. If any party allocated a share fails to pay the amount due by the required date the court shall order a sale of the entire subject property pursuant to § 8.01-83.1 , unless the court determines, based on the factors in this subsection, that it will allow another party or parties to acquire such share by paying for such share within a reasonable period of time set by the court.
If the court determines that such allotment of the entire subject is not practicable or is not equitable, and if the interest of those who are entitled to the subject, or its proceeds, will be promoted by a sale of the entire subject, or allotment of part and sale of the residue, the court, notwithstanding any of those entitled may be a person under a disability, may order such sale, or an allotment pursuant to subsection B of a part thereof to any one or more of the parties who will accept it and pay therefor to the other parties such sums of money as their interest therein may entitle them to, and a sale of the residue. The price for the part of the property allotted to one or more parties shall be the fair market value of such part as determined by the court unless all the parties agree to a value for the part, which the court shall adopt. The sale of the residue shall be conducted pursuant to § 8.01-83.1 . The court shall make distribution of the proceeds of the allotment and sale of the residue, according to the respective rights of those entitled, taking care, when there are creditors of any deceased person who was a tenant in common, joint tenant, or coparcener, to have the proceeds of such deceased person's part applied according to the rights of such creditors.
If the court determines neither allotment of the entire subject property nor of a part of the subject property is practicable or equitable, it shall order a sale pursuant to § 8.01-83.1 . (Code 1950, § 8-692; 1950, p. 467; 1977, c. 617; 2020, cc. 115, 193.)

Cross references. - As to compensation for improvements, see notes to § 8.01-81 .

As to partition or sale of real estate in which homestead exemption is claimed, see § 34-8 .

Editor's note. - Acts 2020, cc. 115 and 193, cl. 3 provides: "That the provisions of this act shall only apply to partition actions filed on or after July 1, 2020."

At the direction of the Virginia Code Commission, substituted "part” for "party” in subsection D to correct a typographical error in Acts 2020, cc. 115 and 193.

The 2020 amendments. - The 2020 amendments by cc. 115 and 193 are identical, and rewrote the section, which had read "When partition cannot be conveniently made, the entire subject may be allotted to any one or more of the parties who will accept it and pay therefor to the other parties such sums of money as their interest therein may entitle them to; or in any case in which partition cannot be conveniently made, if the interest of those who are entitled to the subject, or its proceeds, will be promoted by a sale of the entire subject, or allotment of part and sale of the residue, the court, notwithstanding any of those entitled may be a person under a disability, may order such sale, or an allotment of a part thereof to any one or more of the parties who will accept it and pay therefor to the other parties such sums of money as their interest therein may entitle them to, and a sale of the residue, and make distribution of the proceeds of sale, according to the respective rights of those entitled, taking care, when there are creditors of any deceased person who was a tenant in common, joint tenant, or coparcener, to have the proceeds of such deceased person's part applied according to the rights of such creditors." For applicability clause, see Editor's note.

Michie's Jurisprudence. - For related discussion, see 6B M.J. Dower, § 52; 14A M.J. Partition, §§ 19, 26, 28, 30, 31, 40.

CASE NOTES

I. Decisions Under Current Law.
- A. General Consideration.
- B. Sale.
II. Decisions Under Prior Law.

I. DECISIONS UNDER CURRENT LAW.

A. GENERAL CONSIDERATION.

Primary question in suits for partition is whether or not a division in kind is convenient, practicable and for the best interest of the parties; the secondary question is whether their interest will be promoted by a sale in whole or in part. Sensabaugh v. Sensabaugh, 232 Va. 250 , 349 S.E.2d 141 (1986).

Discretion of court. - Whether an allotment should be decreed is a matter resting within the sound discretion of a trial court. White v. Pleasants, 227 Va. 508 , 317 S.E.2d 489 (1984).

Allotment in kind jointly to cotenants. - While two cotenants may, by agreement, have their joint interests allotted in kind to them jointly, they cannot be compelled to do so against their wishes, or the wishes of either. White v. Pleasants, 227 Va. 508 , 317 S.E.2d 489 (1984).

The 1988 amendment to subsection C of § 20-107.3 gave the trial judge discretion to order a transfer of the property to one of the parties without first determining whether partition in kind could be conveniently made; thus, under the amended statute, a transferor could be deprived of real property susceptible to partition in kind to which he or she would have been absolutely entitled under this section. Such a fundamental change in the law affects substantive rights and thus the 1988 statutory amendment to subsection C of § 20-107.3 was not merely procedural. Marion v. Marion, 11 Va. App. 659, 401 S.E.2d 432 (1991).

Section 20-107.3 , as amended in 1988, gave the trial judge discretion in a divorce proceeding to order a transfer of property to one of the parties without first determining whether partition in kind could be conveniently made. Thus, under the amended statute, one spouse in the divorce proceeding could be deprived of ownership of real property susceptible to partition to which that spouse would have been absolutely entitled under this section. Gaynor v. Hird, 11 Va. App. 588, 400 S.E.2d 788 (1991).

Applied in Upton v. Hall, 225 Va. 168 , 300 S.E.2d 777 (1983); Quillen v. Tull, 226 Va. 498 , 312 S.E.2d 278 (1984).

B. SALE.

Prerequisites to sale. - First the court must conclude that the property cannot be conveniently partitioned. Next, the court must decide whether sale is in the best interest of the parties. If the first step is not reached the second step cannot be taken. Sensabaugh v. Sensabaugh, 232 Va. 250 , 349 S.E.2d 141 (1986).

A court has no power to order the sale of property without first determining that partition in kind cannot be conveniently made and then determining that sale will be in the best interest of all the parties. Sensabaugh v. Sensabaugh, 232 Va. 250 , 349 S.E.2d 141 (1986).

Method. - Chancellor was required to order such method of sale as would obtain the highest price for the property, unless the evidence showed that the parties' conduct or other circumstances made use of that method unachievable. Orgain v. Butler, 255 Va. 129 , 496 S.E.2d 433 (1998).

Failure to substantially comply with provisions of statutes is fatal to proceedings. Equity has no inherent jurisdiction to order a sale of land for the purpose of partition. Sensabaugh v. Sensabaugh, 232 Va. 250 , 349 S.E.2d 141 (1986).

Burden of proof. - The burden is on the proponent of sale to prove all the prerequisites to sale. Sensabaugh v. Sensabaugh, 232 Va. 250 , 349 S.E.2d 141 (1986).

Co-owners urging partition by sale or allotment must first prove partition in kind not conveniently made. Without such proof, a court of equity has no authority to order any such sale. Smith v. Woodlawn Constr. Co., 235 Va. 424 , 368 S.E.2d 699 (1988).

Order of sale is error absent proof that land cannot be conveniently partitioned. - Where a party seeking sale of property in lieu of partition fails to prove that the land cannot be conveniently partitioned then it is error for the trial court to order the sale of the subject property. Sensabaugh v. Sensabaugh, 232 Va. 250 , 349 S.E.2d 141 (1986).

And sale is rendered void. - The failure to make the threshold finding that partition could not be conveniently made renders an order of sale void. Sensabaugh v. Sensabaugh, 232 Va. 250 , 349 S.E.2d 141 (1986).

Proof of prerequisites to sale must affirmatively appear in record. Sensabaugh v. Sensabaugh, 232 Va. 250 , 349 S.E.2d 141 (1986).

Acceptance of highest bid does not create judicial sale. - Even when the property is auctioned under court decree, the acceptance of the highest bid does not create a judicial sale. A judicial sale is not consummated until the proceeding is confirmed by the court. Until then, the proceeding is in fieri, the accepted bidder is merely a preferred proposer, and the court retains the power to set the proceeding aside and order a new sale. Austin v. Dobbins, 219 Va. 930 , 252 S.E.2d 588 (1979).

Failure of court to show opinion accepting bid to counsel. - Proceedings conducted in regard to a petition for partition did not comply with the rules and standards governing judicial sales where, notwithstanding the continuing competition between two active bidders, the expressed interest of other potential buyers, and the possibility that a sale by parcels would yield a greater return, the chancellor wrote a memorandum opinion accepting the latest bid in gross, which opinion was written less than two weeks after that bid was tendered, and was never circulated among counsel. Austin v. Dobbins, 219 Va. 930 , 252 S.E.2d 588 (1979).

Purchase by co-owner. - The fact that the purchaser at a judicial sale for the purpose of partitioning real estate was a co-owner of the property to be partitioned did not render the sale improper. Austin v. Dobbins, 219 Va. 930 , 252 S.E.2d 588 (1979).

Conclusory statement that land would bring "more money" if sold. - Even if the value with partition and without partition is relevant to the convenience of the partition, a decision in that regard cannot be made on the basis of a conclusory statement that land if sold as a whole would bring "more money." Sensabaugh v. Sensabaugh, 232 Va. 250 , 349 S.E.2d 141 (1986).

II. DECISIONS UNDER PRIOR LAW.

A. GENERAL CONSIDERATION.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

Section abrogates common-law rule. - In Virginia, the common-law rule that in a partition suit the shares should be allotted in severalty is abrogated, and the rule that the court is clothed with ample power to resort to the most advantageous devices which the nature of the case may admit is substituted. Price v. Simpson, 182 Va. 530 , 29 S.E.2d 394 (1944).

It provides additional methods of partition. - Under this section, a court has jurisdiction to decree a partition of lands by allotment, by metes and bounds, or by a sale of the lands and division of the proceeds. Beattie v. Wilkinson, 36 F. 646 (W.D. Va. 1888).

In a partition suit, a court of chancery may allot the whole of the property to any party who will take it and pay their respective shares to the others in money, it may sell the whole and divide the proceeds, or it may sell a part and divide the rest. Price v. Simpson, 182 Va. 530 , 29 S.E.2d 394 (1944).

The power to sell or allot an undivided interest in land is conferred upon courts of equity by this section. Cauthorn v. Cauthorn, 196 Va. 614 , 85 S.E.2d 256 (1955); Nickels v. Nickels, 197 Va. 498 , 90 S.E.2d 116 (1955).

The court is by this section given broad authority to deal with the subject as the interest of the parties and the circumstances of the case may require. Its conclusion is, of course, subject to review upon appeal. Stamps v. Williamson, 190 Va. 145 , 56 S.E.2d 71 (1949).

If the court determines from competent evidence in the record before it that the land is not susceptible of division in kind, the court is given broad powers to deal with the subject as the interest of the parties and the circumstances of the case may require. Cauthorn v. Cauthorn, 196 Va. 614 , 85 S.E.2d 256 (1955).

But authority is predicated on determination that partition cannot be conveniently made. - The authority of the court to allot or to sell land in a partition suit is predicated upon its being judicially determined from the record that "partition cannot be conveniently made." The existence of this fact must be determined by the court before ordering the sale or allotment. Cauthorn v. Cauthorn, 196 Va. 614 , 85 S.E.2d 256 (1955).

The power of the court to allot all or a part of the land or to sell all or a part thereof is in all cases dependent upon a judicial determination from the record that "partition cannot be conveniently made." Nickels v. Nickels, 197 Va. 498 , 90 S.E.2d 116 (1955).

And that interests of those entitled to subject or proceeds are served. - In addition to the finding that partition cannot be conveniently made, the power of the court to allot part of the land and sell the residue or to sell the entire subject and distribute the proceeds is dependent upon the further judicial determination from the record that "the interest of those who are entitled to the subject or its proceeds will be promoted" by such disposition. Nickels v. Nickels, 197 Va. 498 , 90 S.E.2d 116 (1955).

Convenience of division in kind. - If the property is found to be divisible in kind, any co-owner has the right to insist that partition be so made, and therefore the primary question in every suit for partition is whether a division in kind may be conveniently made. Nickels v. Nickels, 197 Va. 498 , 90 S.E.2d 116 (1955).

The circumstances which should guide the court in its disposition of the matter will depend not merely on the allegations in the pleadings, but on the evidence or lack of evidence adduced to support such allegations. Stamps v. Williamson, 190 Va. 145 , 56 S.E.2d 71 (1949).

Courts may adopt methods of procedure. - The procedure for determining whether a division in kind can or cannot be conveniently made is not provided for and therefore the courts are left free to adopt such methods of procedure as may be best suited to meet the exigencies of the particular case. Thus, the court may in its sound discretion determine this issue from the evidence before it or it may call to its assistance a master in chancery or a special board of commissioners. But in its final analysis the question must be left to the determination of the court upon the evidence as disclosed by the record. Nickels v. Nickels, 197 Va. 498 , 90 S.E.2d 116 (1955).

Noncompliance with statute is fatal to proceeding. - This section created and conferred a special statutory jurisdiction upon the court. A failure to comply with its provisions is fatal to the proceedings. Equity has no inherent jurisdiction to order a sale of land for the purpose of partition. Roberts v. Hagan, 121 Va. 573 , 93 S.E. 619 (1917).

Under this section creditors may come into a partition suit and their rights will be protected. Those who do come in are bound by what was done and cannot sue again. But creditors who are not parties are not bound by anything done in the suit. Lowry v. Noell, 177 Va. 238 , 13 S.E.2d 312 (1941).

B. ALLOTMENT OF ENTIRE SUBJECT TO ONE PARTY.

The language of the allotment provision is permissive and its exercise rests in the sound discretion of the court. Thrasher v. Thrasher, 202 Va. 594 , 118 S.E.2d 820 (1961); Shotwell v. Shotwell, 202 Va. 613 , 119 S.E.2d 251 (1961).

Whether allotment is justified is question for court. - The court under this section is given power under certain conditions in partition proceedings to assign the whole tract at a valuation to any party who will accept it and pay therefor to other parties such sums of money as their interest therein may entitle them to. Whether or not the conditions exist is for the court to decide, but a wrong conclusion on that question would not render its decree void. Johnson v. Merrit, 125 Va. 162 , 99 S.E. 785 (1919). See Roberts v. Hagan, 121 Va. 573 , 93 S.E. 619 (1917).

Where more than one of the persons entitled to partition sought allotment of the entire property to himself the lower court did not abuse its discretion in refusing allotment to either. Thrasher v. Thrasher, 202 Va. 594 , 118 S.E.2d 820 (1961); Shotwell v. Shotwell, 202 Va. 613 , 119 S.E.2d 251 (1961).

C. ALLOTMENT OF PART AND SALE OF PART.

Section does not authorize sale to pay costs of partition. - In a suit for partition, where no sale is necessary and none is made for the purpose of partition, the court is without jurisdiction to sell the land assigned to one of the partners to satisfy his share of the costs of partition. The judgment for such costs would probably be a preferred lien on the land, but would have to be enforced like other judgment liens by a bill in equity. Virginia Iron, Coal & Coke Co. v. Roberts, 103 Va. 661 , 49 S.E. 984 (1905).

Allotment to co-owner who is also life tenant. - In a suit for partition by one who owned one half of the land in fee and a life estate in the other half, it was not error to allot to her part of the land and compensate her in money out of the proceeds of the sale of the residue for inequality resulting to her in the partition. Lucy v. Kelly, 117 Va. 318 , 84 S.E. 661 (1915).

Owelty to be paid out of proceeds of sale. - Where commissioners in partition assign one tract of land to a party, and fix a value on another tract and ascertain how much thereof shall be paid to the party receiving the other tract for owelty of partition, and the tract valued sells for a less sum than that fixed by the commissioners, the sum to be paid of owelty of partition should be fixed with reference to the price brought at the sale thereof and not to the valuation ascertained by the commissioners. Lucy v. Kelly, 117 Va. 318 , 84 S.E. 661 (1915).

D. SALE OF ENTIRE SUBJECT.

Necessity for sale and interests of parties control. - Under this section, to justify the sale of land in a partition suit, it must appear that the land is not conveniently susceptible of partition in kind, and that the interests of the parties will be promoted by a sale. Custis v. Snead, 53 Va. (12 Gratt.) 260 (1855); Howery v. Helms, 61 Va. (20 Gratt.) 1 (1870); Zirkle v. McCue, 67 Va. (26 Gratt.) 517 (1875).

While a lien creditor may compel partition of land, or a sale thereof when partition cannot conveniently be made, the court has no authority to order such a sale unless it is made to appear by an inquiry before a commissioner or otherwise that partition cannot be made in some of the modes provided by statute. Peatross v. Gray, 181 Va. 847 , 27 S.E.2d 203 (1943).

Sale is void if land can be divided in kind. - If it conclusively appears from the record in the partition suit that the land can be divided in kind and that, notwithstanding this fact, the court orders a sale without the consent of competent parties such decree ordering the sale is void and not merely voidable. Cauthorn v. Cauthorn, 196 Va. 614 , 85 S.E.2d 256 (1955).

Facts justifying sale should be disclosed. - Upon a bill for partition of land, as a general rule, the share of each parcener should be assigned to him in severalty. And if from the condition of the subject or the parties, it is proper to pursue a different course, the facts justifying a departure from the rules should, at least where infants are concerned, be disclosed by the report or otherwise appear, to enable the court to judge whether or not their interest will be injuriously affected. Custis v. Snead, 53 Va. (12 Gratt.) 260 (1855).

And should appear in record. - It is not necessary that the facts necessary to warrant a decree for sale should appear from the reports of commissioners or by the depositions of witnesses. It is sufficient if the facts appearing in the record reasonably warrant the decree of sale. This is especially true when the proceeding is to defeat the title of an innocent purchaser. Zirkle v. McCue, 67 Va. (26 Gratt.) 517 (1875).

Otherwise, court has no authority to decree sale. - Where there was no evidence before the court on which to base a decree for the sale of the land, as the report of the commissioners was discredited by the circumstances under which it was made, it was held that no sale could be had, for a court has no authority to decree a sale of land for partition unless it is made to appear by an inquiry before a commissioner in chancery, or in some other way, that partition in kind cannot be made. Cunningham v. Johnson, 116 Va. 610 , 82 S.E. 690 (1914).

Court should direct inquiry. - It is the duty of the court, before making a decree for a sale, to ascertain by an inquiry, by a commissioner or otherwise, that partition cannot be made in some of the modes provided by this and the preceding section, without a sale. Howery v. Helms, 61 Va. (20 Gratt.) 1 (1870).

But party must object in trial court to failure to do so. - In a suit for partition, the court has no authority to order a sale of the land unless it is made to appear by an inquiry before a commissioner, or otherwise, that partition cannot be made in some of the other modes provided by this article. But when it did not so appear, and no inquiry was asked in the court below, a party who promoted the suit and at whose instance the decree was made, will not be allowed to raise the objection for the first time in the appellate court. Howery v. Helms, 61 Va. (20 Gratt.) 1 (1870).

Interests of parties should be ascertained before ordering sale. - An order for sale of land in partition before ascertaining the interests of the several parties is premature and erroneous, as they are entitled to know how they stand in order that they may bid intelligently, if they desire to bid at the sale. Stevens v. McCormick, 90 Va. 735 , 19 S.E. 742 (1894).

Unless there is no dispute as to title or interest. - Where there is no dispute as to the title or interest of any party to the suit, the shares of the parties need not be ascertained before ordering the sale. Lucy v. Kelly, 117 Va. 318 , 84 S.E. 661 (1915).

Private sales are permitted. - In ordering a sale of land for partition, the court may, in its discretion, authorize a private sale, subject to its approval. Conrad v. Fuller, 98 Va. 16 , 34 S.E. 893 (1900).

Court's decision as to desirability of sale is conclusive. - In a suit for partition, whether the interests of those who are entitled to the subject or its proceeds will be promoted by a sale of the entire subject or not are questions for the court in which the suit is pending to decide, and its decision cannot be questioned in any collateral suit, except on the ground of fraud or surprise. Wilson v. Smith, 63 Va. (22 Gratt.) 493 (1872); Hurt v. Jones, 75 Va. 341 (1881).

Facts not justifying setting aside sale. - The fact that the parties owned another tract of land in another county, and that it did not appear that partition in kind of the two tracts could not be made, is not ground for setting aside as sale, where the parties did not wish to sell the other tract. Frazier v. Frazier, 67 Va. (26 Gratt.) 500 (1875).

CIRCUIT COURT OPINIONS

Division not practical. - In a partition action, the court found that it was a practical impossibility to conveniently divide two parcels of land among the owners due to the extreme typography of the land and the limited road frontage; one parcel was located on both sides of a state road, and the two parcels had different fractional interests. Willson v. Heirs of Wood,, 2006 Va. Cir. LEXIS 183 (Nelson County July 14, 2006).

§ 8.01-83.1. Open-market sale, sealed bids, or auction.

If the court orders a sale of property in a partition action under the provisions of § 8.01-83 , the sale shall be an open-market sale unless the court finds that a sale by sealed bids or at auction would be more economically advantageous and in the best interests of the parties as a group.
If the court orders an open-market sale and the parties, not later than 10 days after the entry of the order, agree on a real estate broker licensed in the Commonwealth to offer the property for sale, the court shall appoint the broker and establish a reasonable commission. If the parties do not agree on a broker, the court shall appoint a disinterested real estate broker licensed in the Commonwealth to offer the property for sale and shall establish a reasonable commission. The broker shall offer the property for sale in a commercially reasonable manner at a price no lower than the determination of value and on the terms and conditions established by the court, including setting a reasonable time for marketing the property at its court-determined value pursuant to § 8.01-81.1 .
If the broker appointed under subsection B obtains within a reasonable time an offer to purchase the property for at least the determination of value:
1. The broker shall promptly file a report containing (i) a description of the property to be sold to each buyer; (ii) the name of each buyer; (iii) the proposed purchase price; (iv) the terms and conditions of the proposed sale, including the terms of any owner financing; (v) the amounts to be paid to lienholders; (vi) a statement of contractual or other arrangements or conditions of the broker's commission; and (vii) other material facts relevant to the sale; and
2. The court shall hold a hearing to approve the same and shall appoint a special commissioner to make the sale and execute the deed pursuant to Article 11 (§ 8.01-96 et seq.).
If the broker appointed under subsection B does not obtain within a reasonable time an offer to purchase the property for at least the determination of value, the court, after a hearing, may:
1. Approve the highest outstanding offer, if any;
2. Redetermine the value of the property and order that the property continue to be offered for an additional period of time; or
3. Order that the property be sold by sealed bids or at auction.
If the court orders a sale by sealed bids or at auction, the court shall set terms and conditions of such sale by sealed bids or an auction.
If a purchaser is entitled to a share of the proceeds of the sale, the purchaser is entitled to a credit against the price in an amount equal to the purchaser's share of the proceeds.
(2020, cc. 115, 193.)

Editor's note. - Acts 2020, cc. 115 and 193, cl. 3 provides: "That the provisions of this act shall only apply to partition actions filed on or after July 1, 2020."

§ 8.01-83.2. Notice by posting.

If the plaintiff in a partition action seeks an order of publication pursuant to § 8.01-316 , the plaintiff, not later than 10 days after the court's determination, shall post and maintain while the action is pending a conspicuous sign on the property that is the subject of the action. The sign shall state that the action has commenced and identify the name and address of the court and the common designation by which the property is known. The court may require the plaintiff to publish on the sign the name of the plaintiff and the known defendants.

(2020, cc. 115, 193.)

Editor's note. - Acts 2020, cc. 115 and 193, cl. 3 provides: "That the provisions of this act shall only apply to partition actions filed on or after July 1, 2020."

§ 8.01-83.3. Commissioners.

If the court appoints commissioners pursuant to Article 11 (§ 8.01-96 et seq.), each commissioner, in addition to the requirements and disqualifications applicable to commissioners in Article 11, shall be disinterested and impartial and not a party to or participant in the action.

(2020, cc. 115, 193.)

Editor's note. - Acts 2020, cc. 115 and 193, cl. 3 provides: "That the provisions of this act shall only apply to partition actions filed on or after July 1, 2020."

§ 8.01-84. Application of proceeds of sale to payment of lien.

When there are liens on the interest of any party in the subject so sold, the court may, on the petition of any person holding a lien, ascertain the liens, and apply the dividend of such party in the proceeds of sale to the discharge thereof, so far as the same may be necessary.

(Code 1950, § 8-693; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 14A M.J. Partition, § 50.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

Court may apply proceeds of sale to discharge of lien. - Courts of equity have jurisdiction of suits for partition, and have power, where there are liens by judgment or otherwise on the interests of any party, to apply the dividends of such party in the proceeds of sale to the discharge of such lien. Grove v. Grove, 100 Va. 556 , 42 S.E. 312 (1902).

Defendant may assert claim or lien. - Under this section defendants in a partition suit may assert any claim or lien they may have upon the land, and if the claim or lien is established, the proceeds of the sale for partition may be applied thereto. Reynolds v. Adams, 125 Va. 295 , 99 S.E. 695 (1919).

Failure to assert charge or lien. - Where defendants in a partition suit made no assertion of any charge or lien in their favor on the real estate in question in their pleadings in the cause, it is not error for the decree to ignore the rights of defendants in this respect. Reynolds v. Adams, 125 Va. 295 , 99 S.E. 695 (1919).

Right of cotenant who has discharged more than his share of encumbrance. - In decreeing partition, a court of equity will adjust all the equitable rights of the parties interested in the property, and if one of the cotenants has paid more than his just share of an encumbrance on the common property, or advanced more than his proportion of the purchase money, the court may decree that payment of the excess be made to him, and that, in default of such payment, the share of the tenant in default may be sold to satisfy the amount equitably due from it. Grove v. Grove, 100 Va. 556 , 42 S.E. 312 (1902).

§ 8.01-85. Disposition of share in proceeds of person under disability.

The court making an order for sale shall, if a party to the sale be a person under a disability, order any dividend of the sale to be disposed as the proceeds of a sale under the provisions of § 8.01-76 are required to be invested.

(Code 1950, § 8-694; 1952, c. 249; 1968, c. 381; 1977, c. 617; 2018, c. 124.)

REVISERS' NOTE.

Former §§ 8-685 and 8-694 were difficult to reconcile. By deleting certain language in former § 8-694 and making reference to § 8.01-76 , the proper disposition of proceeds from a sale of the land of a person under a disability is clarified.

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The 2018 amendments. - The 2018 amendment by c. 124 rewrote the section, which formerly read "The court making an order for sale shall, when the dividend of a party exceeds $2500, if such party be a person under a disability, order the same to be disposed as the proceeds of a sale under the provisions of § 8.01-76 are required to be invested."

Michie's Jurisprudence. - For related discussion, see 14A M.J. Partition, § 31.

§ 8.01-86.

Repealed by Acts 1990, c. 831, effective January 1, 1991.

Cross references. - As to the abolition of dower and curtesy, see § 64.2-301 .

§ 8.01-87. Validation of certain partitions prior to act of 1922.

All partitions heretofore had, when the proceedings conformed to the law as it existed prior to the amendment of § 5281 of the Code of 1919 by an act approved March 27, 1922, although they did not conform to such section as it read under the amendment of 1922, as aforesaid, are hereby validated; but nothing in this validating section shall be construed as intended to affect vested rights.

(Code 1950, § 8-696; 1977, c. 617.)

REVISERS' NOTE.

Former § 8-697 (Validation of sales when stock has been taken instead of cash) had no modern utility and was deleted.

§ 8.01-88. Decree of partition to vest legal title.

A decree heretofore or hereafter made, confirming any partition or allotment in a suit for partition, shall vest in the respective co-owners, between or to whom the partition or allotment is made, the title to their shares under the partition or allotment, in like manner and to the same extent, as if such decree direct such title be conveyed to them and the conveyance was made accordingly.

(Code 1950, § 8-698; 1977, c. 617.)

Cross references. - As to necessity of deed in voluntary partition by coparceners, see § 55.1-101 .

As to recordation of judgments in partition suits, see § 55.1-649 .

Michie's Jurisprudence. - For related discussion, see 14A M.J. Partition, § 25.

CASE NOTES

The object of this section [section refers to former provisions] was to do away with the necessity for conveyances between the parties, or by a commissioner of the court, in partition suits, in order to invest the several co-owners with the legal title to the land allotted to each in the suit. Wright v. Johnson, 108 Va. 855 , 62 S.E. 948 (1908) (decided under prior law).

CIRCUIT COURT OPINIONS

Long-arm jurisdiction. - Section 8.01-328.1 conferred jurisdiction over beneficiaries in a proceeding brought pursuant to this section because the beneficiaries' purposeful actions directed toward Virginia in reaching agreement with plaintiff and carried out through their agent in Virginia were sufficient to confer jurisdiction over them. Eldridge v. Sloper, 75 Va. Cir. 513, 2007 Va. Cir. LEXIS 253 (Alexandria 2007).

§ 8.01-89. When proceeds of sale deemed personal estate.

The proceeds of any sale made under § 8.01-83 shall, except as provided in § 8.01-77 , be deemed personal estate from the time of the confirmation of such sale by the court.

(Code 1950, § 8-699; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 14A M.J. Partition, § 31.

§ 8.01-90. When name or share of parties unknown.

If the name or share of any person interested in the subject of the partition be unknown, so much as is known in relation thereto shall be stated in the bill.

(Code 1950, § 8-700; 1977, c. 617.)

Cross references. - As to order of publication against unknown parties, see § 8.01-316 .

For provision as to reopening of suit by unknown parties, see § 8.01-322 .

Michie's Jurisprudence. - For related discussion, see 14A M.J. Partition, § 41.

§ 8.01-91. Effect of partition or sale on lessee's rights.

Any person who, before the partition or sale, was lessee of any of the lands divided or sold, shall hold the same of him to whom such land is allotted or sold on the same term on which by his lease he held it before the partition.

(Code 1950, § 8-701; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 14A M.J. Partition, § 49.

CASE NOTES

The fact that land is under lease for a term of years is no objection to a partition thereof in this State, by virtue of this section. Lucy v. Kelly, 117 Va. 318 , 84 S.E. 661 (1915) (decided under prior law).

But tenant must claim under valid lease. - This section applies only when the lessee claims under a valid lease against all of the joint owners; it does not apply where only a part of the tenants in common undertook to lease a particular portion of the joint property. Phillips v. Dulaney, 114 Va. 681 , 77 S.E. 449 (1913) (decided under prior law).

Rights of tenant who is owner of undivided portion. - The fact that a tenant or lessee of land was the owner of an undivided portion therein did not deprive him of the rights given a tenant or lessee under this section. Mitchell v. Weaver, 116 F. Supp. 707 (E.D. Va. 1953) (decided under prior law).

§ 8.01-92. Allowance of attorneys' fees out of unrepresented shares.

In any partition suit when there are unrepresented shares, the court shall allow reasonable fees to the attorney or attorneys bringing the action on account of the services rendered to the parceners unrepresented by counsel.

(Code 1950, § 8-701.1; 1950, p. 96; 1977, c. 617.)

CASE NOTES

Attorney fees denied. - Sibling was properly denied attorney fees out of the unrepresented siblings' shares in the sale proceeds from an inherited property where § 8.01-92 only required an award when fees were incurred on account of the services rendered to unrepresented parceners, the trial court had found that no services were rendered to the unrepresented siblings, and there was no evidence that the unrepresented siblings supported the partition suit. Berry v. Fitzhugh, 846 S.E.2d 901, 2020 Va. LEXIS 94 (Aug. 20, 2020).

CIRCUIT COURT OPINIONS

Fees awarded. - Chancery commissioner properly rejected the plaintiff's claim regarding the proceeds of a beneficiary's sale of timber harvested from the property because the profits realized from the timber sale was used to pay the property taxes and insurance on the property, which benefited the other parties, and the one acre parcel with a life estate was to have a sewage drainage easement; however, the commissioner erred in rejecting the plaintiff's claim for attorney's fees against the beneficiary's unrepresented shares. Ellinger v. Tyree, 104 Va. Cir. 183, 2020 Va. Cir. LEXIS 15 (Nelson County Jan. 31, 2020).

§ 8.01-93. Partition of goods, etc., by sale, if necessary.

When an equal division of goods or chattels cannot be made in kind among those entitled, a court of equity may direct the sale of the same, and the distribution of the proceeds according to the rights of the parties.

(Code 1950, § 8-702; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 5A M.J. Cotenancy, § 45; 9B M.J. Infants, § 55; 14A M.J. Partition, §§ 1, 16.

CASE NOTES

Choses in action are not "goods and chattels." - The words "goods and chattels" do not apply to choses in action, but only to visible and tangible property. First Nat'l Bank v. Holland, 99 Va. 495 , 39 S.E. 126 (1901) (decided under prior law).

Trial courts not permitted to defer suits for partition. - If the trial courts were permitted to defer suits for partition, rights granted in this section requesting immediate partition would be denied to the party. Fitchett v. Fitchett, 6 Va. App. 562, 370 S.E.2d 318 (1988).

Article 10. Sale, Lease, or Exchange of Certain Estates in Property.

§ 8.01-94. When sold, leased or exchanged.

Whenever an interest in property, real or personal, is held by a person, natural or artificial, with remainder or limitation over contingent upon any event, or for his life or for the life of another, and there is limited thereon any other estate, vested or contingent, to any other such person, whether in being or to be thereafter born or created in any manner whatsoever, such person holding an interest in the property so subject to remainder or limitation over or for his own life, or his committee, guardian, if a minor, or conservator, or, if the estate so held be for the life of another, then his heir or personal representative, as the case may be, may for the purpose of obtaining a sale or leasing or exchange of the fee simple interest or absolute estate in such property, if the sale or leasing or exchange thereof is not prohibited by the instrument creating the estate, and the remaindermen, or any of them, whether in being or hereafter to be born or created, are from any cause incapable at the time of filing the bill as herein provided or of giving their assent, or the remainder or limitation over is contingent or defeasible, file a bill in equity in the circuit court stating plainly the property to be sold or leased or exchanged and all facts calculated to show the propriety of such sale or lease or exchange. A like bill may be filed for the sale or leasing or exchange of the remainder in such estate by a remainderman, his guardian, conservator or committee. All persons interested in the property presently or contingently, other than the plaintiff, shall be made defendants, and if such remaindermen be not born or created at such time of filing such bill, such suit shall not for such cause abate, but such unborn person or uncreated artificial person shall be made defendant and subject to the decree of the court by the name of "person unknown or person yet to be born or created," and the court shall upon the filing of such bill appoint a guardian ad litem to defend the interest of such unborn person or uncreated artificial person. If it be clearly shown independently of any admissions in the pleadings that the interest of the plaintiff will be promoted and the rights of no other person will be violated thereby, the court may decree a sale or lease or exchange of the property or any part thereof, or of the remainder therein. In case of a sale on credit, the court shall take ample security. If such sale on credit be of real estate, a lien thereon shall be reserved. The title to any land acquired in any exchange herein provided for shall be held and owned by the same persons in the same way, to the same extent and subject to the same conditions that they owned the land given in such exchange.

(Code 1950, § 8-703.1; 1958, c. 271; 1977, c. 617; 1997, c. 801.)

REVISERS' NOTE.

References in former § 8-703.1 to venue or jurisdiction have been deleted. See chapter 5 (Venue). The requirement of verification of the bill has been eliminated and the last sentence of former § 8-703.1 has been deleted as misleading.

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Cross references. - For general provisions as to sale or lease of lands of persons under disabilities, see §§ 8.01-67 through 8.01-80 .

Michie's Jurisprudence. - For related discussion, see 16 M.J. Remainders, Reversions and Executory Interests, § 25.

Applied in Weddle v. Nunley, 43 Bankr. 415 (Bankr. W.D. Va. 1984).

§ 8.01-95. Procedure in such case.

The procedure in such suit and the investment of the proceeds of sale shall be in accordance with §§ 8.01-73 , 8.01-75 and 8.01-76 , so far as the same can be made applicable, and the court may, in its discretion, commute the life estate according to § 55.1-500 . In the case of a lease, however, the rents may be made payable direct to the person or persons entitled thereto, for the time being.

(Code 1950, § 8-703.2; 1977, c. 617.)

Cross references. - For rules of court governing practice and procedure in civil actions, see Rules 3:1 through 3:25.

Michie's Jurisprudence. - For related discussion, see 14B M.J. Process, § 15; 16 M.J. Remainders, Reversions and Executory Interests, § 25.

Applied in Weddle v. Nunley, 43 Bankr. 415 (Bankr. W.D. Va. 1984).

Article 11. General Provisions for Judicial Sales.

§ 8.01-96. Decree for sale; how made; bond of commissioner.

In decreeing a sale under any provisions of law, the court may provide for the sale of property in any part of the Commonwealth, and may direct the sale to be for cash, or on such credit and terms as it may deem best, and it may appoint one or more special commissioners to make such sale. No special commissioner, appointed by a court, shall receive money under a decree, until he gives bond, with approved security, before such court or its clerk, in a penalty to be prescribed by the court, conditioned upon the faithful discharge of his duties as such commissioner and to account for and pay over as the court may direct all money that may come into his hands as such commissioner.

(Code 1950, § 8-655; 1977, c. 617.)

Cross references. - As to sale of property of persons under disabilities, see §§ 8.01-67 through 8.01-80 and § 8.01-85 . As to payment of small amounts to certain persons without the intervention of a fiduciary, see § 8.01-606 .

CASE NOTES

I. General Consideration.
II. Terms of Sale.
III. Confirmation of Sale.
IV. Bond of Commissioner.

I. GENERAL CONSIDERATION.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

II. TERMS OF SALE.

Sale may be private. - A direction to a commissioner, in a decree for the sale of real estate, to receive private offers and report them to the court to be acted upon in vacation is within the discretion of the trial court, in order to obtain the best price for the land. Conrad v. Fuller, 98 Va. 16 , 34 S.E. 893 (1900).

Contract of parties governs sales under mortgages and other instruments. - A court may direct the sale of property to be for cash, or on such credit and terms as it may deem best, but this rule does not apply to mortgages, deeds of trust, and other instruments, in which the terms of sale are agreed upon. In such cases the contract of the parties governs. Pairo v. Bethell, 75 Va. 825 (1881); Stimpson v. Bishop, 82 Va. 190 (1886).

Realty of value should be sold on reasonable credit. - The general rule to be deduced from the decisions is that real property of value should be sold on a reasonable credit, unless under peculiar circumstances, and the circumstances to take the case out of general rule should appear by the record. Pairo v. Bethell, 75 Va. 825 (1881).

Court may change terms of sale before confirmation. - So long as the sale is unconfirmed, and the property and the sale remain under the power of the court, it has the power to change the terms of the sale. Tebbs v. Lee, 76 Va. 744 (1882).

Resale of land on default of purchaser. - Before there can be a decree of resale, it is proper and necessary that the purchaser have notice of the proceeding. The practice is to proceed by the service of a rule on the purchaser to show cause why the lands should not be resold. And upon the filing of a petition for a resale and a report showing that the purchase money has not all been paid, the court may direct such a rule. Thornton v. Fairfax, 70 Va. (29 Gratt.) 669 (1878). See also Clarkson v. Read, 56 Va. (15 Gratt.) 288 (1858); Long v. Weller, 70 Va. (29 Gratt.) 347 (1877); Berlin v. Melhorn, 75 Va. 639 (1881); Boyce v. Strother, 76 Va. 862 (1882); Ogden v. Davidson, 81 Va. 757 (1885).

Terms of resale held proper. - Where a judgment debtor bought his own land at a sale under a decree in a creditors' suit against him, and failed to pay the purchase money, a resale on terms of one-fourth cash and the balance in one, two and three years was not inequitable under this section. Dickinson v. Clement, 87 Va. 41 , 12 S.E. 105 (1890).

III. CONFIRMATION OF SALE.

Discretion of court. - It lies within the discretion of the court ordering the sale to determine whether it will accept the bid and confirm the sale, or set it aside. Terry v. Coles, 80 Va. 695 (1885); Moore v. Triplett, 96 Va. 603 , 32 S.E. 50 (1899).

Discretion is not arbitrary. - The court, in acting upon a report of a sale, does not exercise an arbitrary discretion, but a sound legal discretion in view of all the circumstances. It is to be exercised in the interest of fairness, prudence, and a just regard to the rights of all concerned. Berlin v. Melhorn, 75 Va. 639 (1881).

Sale should be sustained if possible. - Sound policy requires that judicial sales should be sustained as far as possible, where it is consistent with the rights of others and the rule that innocent purchasers are favorites of the law. Coleman v. Virginia Stave & Heading Co., 112 Va. 61 , 70 S.E. 545 (1911).

Before confirmation, lesser grounds are sufficient. - Where a sale has not been confirmed, the reasons for setting it aside need not be so strong as they should be after confirmation. Todd v. Gallego Mills Mfg. Co., 84 Va. 586 , 5 S.E. 676 (1888).

Confirmation may be set aside during term. - It is within the discretion of the court at any time during the term to set aside the decree of confirmation and rescind the sale, upon proper motion and notice to the purchaser and the parties concerned, for good cause shown. Langyher v. Patterson, 77 Va. 470 (1883).

Confirmation cures defects. - Subsequent confirmation is equivalent to previous authority, cures departures from the terms prescribed, and cures all defects in the execution of the decree, except those founded in lack of jurisdiction or in fraud. It makes the sale the court's own act, and renders it no longer executory, but executed. Langyher v. Patterson, 77 Va. 470 (1883).

Any party may appeal from refusal to confirm sale. - From the refusal to confirm a sale and order for resale, any party may appeal, and to refuse suspension of the decree is error, but the Supreme Court will not reverse the decree for that error when it is right on its merits. Todd v. Gallego Mills Mfg. Co., 84 Va. 586 , 5 S.E. 676 (1888).

Sale set aside for mistake, misrepresentation or fraud. - In a judicial sale, if it should be made to appear, either before or after the sale has been ratified, that there has been any injurious mistake, misrepresentation or fraud, the biddings will be reopened, the reported sale rejected or the order of ratification rescinded, and the property again sent into the market and resold. Merchants Bank v. Campbell, 75 Va. 455 (1881).

Grounds for setting aside sale. - The following have been held to be grounds for setting aside sales: breach of duty by officer, Brock v. Rice, 68 Va. (27 Gratt.) 812 (1876), fraud or mistake Carr v. Carr, 88 Va. 735 , 14 S.E. 368 (1892), conduct preventing fair completion Teel v. Yancey, 64 Va. (33 Gratt.) 691 (1880), sale on inclement day Roberts v. Roberts, 54 Va. (13 Gratt.) 639 (1857), defect of title Daniel v. Leitch, 54 Va. (13 Gratt.) 195 (1856), gross inadequacy of price Coles v. Coles, 83 Va. 525 , 5 S.E. 673 (1887).

Ordinarily, a commissioner to sell is not allowed to purchase the subject, either directly or indirectly. Such a purchase, however, is not absolutely void, but voidable only at the election of any party interested in the land. Hurt v. Jones, 75 Va. 341 (1881).

Purchase by commissioner at resale. - Upon the failure of the purchaser at a judicial sale to pay the purchase money, there was a decree appointing a commissioner to resell the land. The commissioner himself purchased the land at the resale. No objection or exception to the commissioner's purchase was made or taken by any party, the purchase money was paid, and the sale was approved and ratified. It was held that the sale was good, inasmuch as the full amount of the purchase money, for the payment of which the resale was ordered, was assured and paid to the parties entitled, and they could have received nothing more on a resale to another, for the surplus, if any, would have belonged to the purchaser at the original sale. Hurt v. Jones, 75 Va. 341 (1881).

Advance bids. - In a proper case, where it would be just to all the parties concerned, the court may, in the exercise of a sound discretion, set aside a sale made by commissioners under a decree, and reopen the biddings upon the offer of an advance bid of a sufficient amount deposited or well secured. But it has never been held imperative upon the courts to set aside the sale and reopen the bids. It is a question addressed to the sound discretion of the courts, subject to review by the appellate tribunal, and the propriety of its exercise depends upon the circumstances of each case, and can only be rightfully exercised when it can be done with a due regard to the rights of all concerned, the purchaser included. Roudabush v. Miller, 73 Va. (32 Gratt.) 454 (1879). See also Effinger v. Ralston, 62 Va. (21 Gratt.) 430 (1871); Hudgins v. Lanier, 64 Va. (23 Gratt.) 494 (1873); Brock v. Rice, 68 Va. (27 Gratt.) 812 (1876); Curtis v. Thompson, 70 Va. (29 Gratt.) 474 (1877); Merchants Bank v. Campbell, 75 Va. 455 (1881); Berlin v. Melhorn, 75 Va. 639 (1881); Hansucker v. Walker, 76 Va. 753 (1882); Langyher v. Patterson, 77 Va. 470 (1883); Effinger v. Kenney, 79 Va. 551 (1884); Terry v. Coles, 80 Va. 695 (1885); Yost v. Porter, 80 Va. 855 (1885).

It is error to set aside a judicial sale solely because after the sale an advance bid of 10% has been made. Lillard v. Graves, 123 Va. 193 , 96 S.E. 169 (1918).

IV. BOND OF COMMISSIONER.

Bond must be given before commissioner receives money. - This section requires a bond of commissioners of sale, and the bond must be given before the commissioners receive any money under the decree, whether it is directed therein or not. McAllister v. Bodkin, 76 Va. 809 (1882).

Waiver of bond requirement. - The bond with security required of a commissioner is for the benefit of those entitled to the proceeds of the sale. If he collects without giving bond, and they ratify his act and look to him for payment, no one else can complain or claim that any equity is raised in his favor. Lee v. Swepson, 76 Va. 173 (1882).

Decree not requiring bond is not erroneous. - It is not error that the decree does not require the commissioner of sale to give bond and security; this section requires that he shall, before he collects any money. McAllister v. Bodkin, 76 Va. 809 (1882); Cooper v. Daugherty, 85 Va. 343 , 7 S.E. 387 (1888).

Commissioners cannot execute bonds with each other as sureties. - Two commissioners were appointed to sell land, and were required before proceeding to act to execute a bond with security conditioned according to law. Each executed a separate bond with the other as his surety. It was held that this was not a compliance with the decree, and that though the bonds were given in court. Tyler v. Toms, 75 Va. 116 (1880).

Purchaser must see that bond has been given. - This section is imperative, that a bond shall be given, and it is the duty of a purchaser at a judicial sale to see that the bond has been given before he pays his money to the commissioner, or he does it at his own risk. Hess v. Rader, 67 Va. (26 Gratt.) 746 (1875).

And purchaser is liable for loss sustained thereby. - A commissioner who has not given bond as required has no authority to receive the purchase money, and the purchaser at the unauthorized private sale is responsible to the party who is entitled to the proceeds, for so much as has not been properly invested by the commissioner and cannot be made out of his estate. Hess v. Rader, 67 Va. (26 Gratt.) 746 (1875).

The sale of the land was to be on credit, with bonds to be taken for the several deferred payments, and the title to be retained. As the bonds fell due, the purchaser paid the money to one of the commissioners, who had not given bond as required by this section, and who was not authorized by the decree to collect the purchase money. The commissioner deposited the money as collected in a bank to his credit as commissioner, not using it or mingling it with his own, and it was lost by the failure of the bank. It was held that the purchaser was bound to pay the purchase money of the land again, and that the commissioner, having received the money without authority, was liable to the purchaser for the amount so paid. Tyler v. Toms, 75 Va. 116 (1880).

But commissioner is liable to purchaser. - Where a commissioner who had not executed the required bond receives the purchase money of a sale, he is liable to the purchaser for any loss sustained thereby. Hess v. Rader, 67 Va. (26 Gratt.) 746 (1875).

And purchaser is subrogated to rights of creditor against commissioner. - If a purchaser should have to pay the purchase money a second time, he would be subrogated to the creditor's rights under a decree requiring the commissioner to pay it. Lee v. Swepson, 76 Va. 173 (1882).

Payment to commissioner who has not given bond is invalid. - Where the purchaser at a sale made under decree of court pays the purchase money to a commissioner who has not given the bond required by law, the payment is invalid, unless a certificate of the clerk that a bond was given was published with the advertisement of the sale. Whitehead v. Bradley, 87 Va. 676 , 13 S.E. 195 (1891).

Land is liable for purchase money received and misapplied. - Where a purchaser at a judicial sale of land pays the purchase money to the commissioner, but the commissioner has not executed the bond required by the decree, or the bond executed by him is disapproved by the clerk, the purchaser has paid in his own wrong, and the land is liable for the purchase money received by the commissioner and misapplied, though the land has been conveyed by the commissioner to the purchaser, as the decree directed to be done when the purchase money was paid. Lloyd v. Erwin, 70 Va. (29 Gratt.) 598 (1877).

And person entitled is not required to proceed first against commissioner. - The parties entitled to the fund are not bound to proceed against the commissioner and his sureties in the bond he executed, but which the clerk disapproved, before proceeding against the land to have it subjected to the judgment of the purchase money misapplied by the commissioner. Lloyd v. Erwin, 70 Va. (29 Gratt.) 598 (1877).

§ 8.01-97. Delinquent taxes to be ascertained.

In every suit brought in this Commonwealth for the sale of lands for the payment of debts or to subject lands to the payment of liens binding thereon, it shall be the duty of the court, or any commissioner to whom the cause is referred, to ascertain all delinquent taxes on such land together with interest and penalties if any.

(Code 1950, § 8-656; 1977, c. 617.)

REVISERS' NOTE.

Former § 8-656 has been simplified and language pertaining to the sale of land for delinquent taxes has been deleted since such a sale is provided for in § 58.1-3965 .

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Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

This section was not written for the benefit of the delinquent landowner. Woodhouse v. Burke & Herbert Bank & Trust Co., 166 Va. 706 , 185 S.E. 876 (1936).

It is error to decree sale before ascertaining liens. - Where there are various liens on the land of a debtor, it is premature and erroneous to decree a sale of the land to satisfy the liens, without first ascertaining all the liens existing against the land and determining and definitely fixing their respective amounts and priorities. Strayer v. Long, 83 Va. 715 , 3 S.E. 372 (1887); Bristol Iron, Coal & Coke Co. v. Caldwell, 95 Va. 47 , 27 S.E. 838 (1897); Artrip v. Rasnake & Son, 96 Va. 277 , 31 S.E. 4 (1898); Rush v. Dickenson County Bank, 128 Va. 114 , 104 S.E. 700 (1920); Tackett v. Bolling, 172 Va. 326 , 1 S.E.2d 285 (1939).

§ 8.01-98. Sales of land when purchase price insufficient to pay taxes, etc.

In any proceedings for the sale of real estate or to subject real estate to the payment of debts, it appears to the court that the real estate cannot be sold for enough to pay off the liens of taxes, levies, and assessments returned delinquent against it, and it further appears that the purchase price offered is adequate and reasonable, such sale shall be confirmed, and the court shall decree the payment and distribution of the proceeds of such sale pro rata to the taxes, levies, and assessments due the Commonwealth or any political subdivision thereof, after having first deducted the cost of such proceedings in court. Such decree shall be certified to the treasurer who has charge of the delinquent tax books, and such treasurer shall cause the lien of such taxes, levies, and assessments to be marked satisfied upon the list of delinquent lands regardless of whether the same shall have been paid in full.

(Code 1950, § 8-657; 1977, c. 617; 2020, c. 644.)

The 2020 amendments. - The 2020 amendment by c. 644, in the final sentence, substituted "treasurer" for "clerk of the appropriate court" near the beginning and "treasurer" for "clerk" near the middle.

§ 8.01-99. Bond required of special commissioner for sale.

Except as hereinafter provided, no special commissioner shall advertise the property for sale or renting, or sell or rent the same, until he shall have given bond in a penalty to be prescribed by the court sufficient to cover at least the probable amount of the whole purchase money or such portion of the rent the court deems appropriate, and shall have obtained from such clerk a certificate that such bond has been given. The certificate or a copy thereof shall be appended to the advertisement; provided, however, that in any case of such sale or rental, the court may direct all the cash proceeds thereof to be deposited by the purchaser or lessee to the credit of such court in some bank to be designated by it, and may direct that all evidences of indebtedness arising from such transaction or rent be deposited for safekeeping with such bank or the clerk of such court and the court may in its discretion thereafter dispense with the bond.

The clerk shall make the certificate whenever the bond has been given and note the same in the proceedings in the cause. The certificate or a copy thereof shall be returned with the report of the sale or renting.

(Code 1950, § 8-658; 1977, c. 617.)

REVISERS' NOTE.

Former § 8-658 has been simplified and expanded. The court may consider "such portion" of the rent which it deems appropriate in determining the amount of the penalty bond for the rental of real estate. This flexibility may permit a reduction in cost of the bond.

The provision for a clerk's fee in former § 8-658 has been deleted as obsolete.

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Cross references. - As to liability of purchaser who pays money to a commissioner who has not executed the required bond, see note to § 8.01-96 . See also § 8.01-101 .

Michie's Jurisprudence. - For related discussion, see 11A M.J. Judicial Sales and Rentings, § 29.

CASE NOTES

Bond must be given before court requiring it, or judge or clerk thereof. - The bond required by this section to be given by commissioners to sell lands can only be given before the court which requires the bond to be given, or before the judge thereof, or the clerk of the court in his office, and it is error to direct the clerk of any other court to take it. Southwest Va. Mining Co. v. Chase, 95 Va. 50 , 27 S.E. 826 (1897) (decided under former version of this section).

§ 8.01-100. Liability of clerk for false certificate or failure to give bond.

If any clerk make a certificate as to the bond, which is untrue, he and the sureties on his official bond shall be liable to any person injured thereby.

(Code 1950, § 8-661; 1977, c. 617; 1978, c. 718.)

REVISERS' NOTE.

The criminal violation of former § 8-661 has been classified as a Class 3 misdemeanor.

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Cross references. - As to penalties for false certificate or failure to give bond, see § 18.2-209.1 .

§ 8.01-101. Purchasers relieved of liability for purchase money paid to such commissioner.

When the certificate pursuant to the provisions in § 8.01-99 shall have been published with an advertisement of the sale or renting of property, or when such bond shall have been given prior to a sale or renting not publicly advertised, any person purchasing or renting such property in pursuance of such advertisement or in pursuance of the decree or order of sale or renting, shall be relieved of all liability for the purchase money or rent, or any part thereof, which he may pay to any special commissioner, as to whom the proper certificate shall have been appended to such advertisement, or who shall have given the bond aforesaid.

(Code 1950, § 8-659; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 11A M.J. Judicial Sales and Rentings, § 97; 13A M.J. Mortgages and Deeds of Trust, § 146.

CASE NOTES

Applies to all judicial sales, whether original or resales, and a purchaser who seeks to avail himself of the protection afforded by it must show either that the commissioner to whom payments were made actually gave the bond required of him, or that the clerk's certificate that such bond had been given was appended to the advertisement. The fact that a bond was required of and given by the same commissioner before making the original sale, and that the surety of the purchaser at the original sale became the purchaser at the resale, cannot change the result. Tompkins v. Dyerle, 102 Va. 219 , 46 S.E. 300 (1904) (decided under prior law).

When payment invalid. - Where the purchaser at a sale made under decree of court pays the purchase money to a commissioner who has not given the bond required by law, the payment is invalid, unless a certificate of the clerk that bond has been given was published with the advertisement of sale. Whitehead v. Bradley, 87 Va. 676 , 13 S.E. 195 (1891). See also, Pulliman v. Thompkins, 99 Va. 602 , 39 S.E. 221 (1901) (decided under prior law).

§ 8.01-102. Purchasers not required to see to application of purchase money.

No purchaser or renter at a duly authorized sale or renting made by a receiver, personal representative, trustee, or other fiduciary shall be required to see to the application of the purchase money.

(Code 1950, § 8-660; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 13A M.J. Mortgages and Deeds of Trust, § 146.

CASE NOTES

Purchaser takes title free of equities. - Under former version of this section, if the purchaser pays the purchase money and conveyance is made to him, he takes the legal title free from the equities that attached to it in the hands of the trustee. Broun v. City of Roanoke, 172 Va. 227 , 1 S.E.2d 279 (1939) (decided under prior law).

Except where he does not pay purchase money. - It is true that under a former version of this section the purchaser from a trustee is not required to see to the application of purchase money; but, if he does not pay the purchase money, and legal title is conveyed to him, he takes it subject to the same equities as attached to it in the hands of the trustee. Ballard Bros. Fish Co. v. Stephenson, 49 F.2d 581 (4th Cir.), cert. denied, 283 U.S. 864, 51 S. Ct. 656, 75 L. Ed. 1468 (1931). See Burke v. Sweeley, 177 Va. 47 , 12 S.E.2d 763 (1941) (decided under prior law).

§ 8.01-103. Special commissioner or other person appointed to do so to receive purchase money, etc.; liability of clerk for failure to give notice of appointment.

The special commissioner, who makes the sale or renting, shall receive and collect all the purchase money or rent, unless some other person be appointed to collect the same and in such case the court shall require of such person bond with surety in such penalty as to it may seem fit. When such appointment is made, it shall be the duty of the clerk to give notice thereof, in writing, to the purchaser or lessee, to be served as other notices are required by law to be served; but no payment shall be made to the person so appointed, until he shall have given the bond required by the decree or order; provided, however, that if, before the purchaser or lessee has received notice of such appointment, he shall have made any payment on account of the purchase money or rent to the special commissioner, or any person appointed for the purpose, who made the sale or renting, such special commissioner, or other person, who made the sale or renting, and the sureties on his bond, shall be responsible for the money so paid, and the purchaser or lessee, who made the payment, shall not be responsible therefor.

If any clerk fail to give the notice hereinbefore required to be given by him, he and the sureties on his official bond shall be liable to any person injured by such failure.

(Code 1950, § 8-662; 1977, c. 617; 1978, c. 718.)

REVISERS' NOTE.

The criminal violation of former § 8-662 has been classified as a Class 4 misdemeanor.

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Cross references. - As to failure of clerk to give notice of appointment of special commissioner to collect purchase money or rent, see § 18.2-209.2 .

CASE NOTES

The court and not the commissioner is the real seller at a judicial sale, and the commissioner is merely the ministerial agent of the court and the medium through which the purchaser makes an offer to the court. The proceeds of the sale are funds in the custody of the court and subject to its orders. French v. Pobst, 203 Va. 704 , 127 S.E.2d 137 (1962) (decided under prior law).

§ 8.01-104.

Repealed by Acts 1978, c. 718.

Cross references. - For present provisions as to larceny by special commissioner or receiver, see § 18.2-114.1 .

§ 8.01-105. Rule against special commissioner, purchaser, etc., for judgment for amounts due.

Any court of this Commonwealth, may, at the instance of any party in interest, award a rule against any special commissioner or receiver appointed by or acting under the authority of such court, and against the surety of such commissioner or receiver, or against a purchaser at a judicial sale under a decree of such court, and against the surety or sureties of such purchaser, returnable to such date as the court may fix, to show cause why judgment shall not be entered against them for any amount which the court may ascertain to be due from such commissioner, receiver, or purchaser. A rule issued under this section shall be executed at least fifteen days before the return day thereof.

(Code 1950, § 8-664; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 15 M.J. Receivers, §§ 23, 37; 16 M.J. Reference and Commissioners, § 4.

CASE NOTES

Purpose. - This section was evidently intended to provide a simple and easy method of taking personal judgment against a defaulting purchaser and his sureties. Rush v. Dickenson County Bank, 128 Va. 114 , 104 S.E. 700 (1920) (decided under former corresponding provisions).

Section is not exclusive. - While a rule may be issued against a commissioner under this section such method of procedure is not exclusive; and a reference to another commissioner to ascertain the amount due served the function of a rule to give notice and an opportunity to defend. French v. Pobst, 203 Va. 704 , 127 S.E.2d 137 (1962) (decided under former corresponding provisions).

Commissioner personally liable. - Court held the Special Commissioner of Sale personally liable for failing to account for petitioner's judgment lien and ordered him to implead $79,452.28 to the court and provide notice to then-existing lien creditors who might have had a valid legal claim to the proceeds of the judicial sale. Nassabeh v. Montazami, 101 Va. Cir. 151, 2019 Va. Cir. LEXIS 23 (Fairfax County Feb. 7, 2019).

§ 8.01-106. How cause heard upon rule and judgment rendered.

Upon the return of a rule executed under § 8.01-105 upon any of the parties thereto, the court may if neither party demand a jury, proceed to hear and determine all questions raised by such rule, and shall enter a judgment against such special commissioner, receiver, or purchaser, as the case may be, and his surety or sureties, for the amount appearing to be due by such commissioner, receiver or purchaser, or may enter judgment against such of them as have been summoned to answer such rule. If it appears in such proceeding that such commissioner, receiver, purchaser, or any of them, or their sureties is dead, or under a disability, then such rule shall be awarded against the personal representative of those dead, and the fiduciary of those who are under a disability, and judgment may be rendered jointly and severally against such personal representative, fiduciary and those laboring under no disability in the same proceeding.

(Code 1950, § 8-665; 1977, c. 617.)

§ 8.01-107. Trial by jury of issues made upon rule.

If, upon the return of such rule, any party thereto demand a trial by jury, the court shall order a trial by jury to ascertain what liability, if any, exists against any such special commissioner, receiver, or purchaser, and their sureties; and the court shall enter judgment on the verdict awarded by the jury. New trials may be granted as in other cases; and notwithstanding such rules be awarded and judgment be rendered against part only of the persons liable thereto, the court may award new rules and proceed to judgment against all the parties who are liable thereto. The provisions of this section, and §§ 8.01-105 and 8.01-106 , shall apply to any officers and their sureties, acting under the decree of the court.

(Code 1950, § 8-666; 1977, c. 617.)

§ 8.01-108. When sureties of commissioner, purchaser, etc., proceeded against by rule.

Whenever a special commissioner, a receiver, purchaser at a judicial sale, or his personal representative, or any of them, can be proceeded against by rule for the recovery of money under §§ 8.01-105 , 8.01-106 and 8.01-107 , the surety of such commissioner, receiver, or purchaser, and the personal representatives of such sureties, may also be proceeded against under such sections.

(Code 1950, § 8-667; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 15 M.J. Receivers, § 23.

§ 8.01-109. Commission for selling, collecting, etc.; each piece of property to constitute separate sale.

For the services of commissioners or officers under any decree for a sale, including the collection and paying over of the proceeds, there may be allowed a commission of five percent on amounts up to and including $100,000, and two percent on all amounts above $100,000. If the sale is made by one commissioner or officer and the proceeds collected by another, the court under whose decree they acted shall apportion the commission between them as may be just.

For the purposes of this section, each piece of property so sold shall constitute a separate sale, even though more than one piece of property is sold under the same decree.

(Code 1950, § 8-669; 1950, p. 459; 1966, c. 416; 1974, c. 197; 1977, c. 617; 1993, c. 311.)

Michie's Jurisprudence. - For related discussion, see 5A M.J. Costs, § 3; 11A M.J. Judicial Sales and Rentings, § 34; 13A M.J. Mortgages and Deeds of Trust, §§ 51, 175.

CASE NOTES

Priority of commissioner's claim for fees. - By fixing the amount of the commission in a judicial sale, the general assembly intended that such commission be paid from the proceeds of that sale and a circuit court thus properly directed payment of the fees of a special ommissioner from the sale proceeds before any distribution of the funds to the holder of the first deed of trust. Homeside Lending, Inc. v. Unit Owners Ass'n of Antietam Square Condo., 261 Va. 161 , 540 S.E.2d 894, 2001 Va. LEXIS 1 (2001).

Applied in Austin v. Dobbins, 219 Va. 930 , 252 S.E.2d 588 (1979).

CIRCUIT COURT OPINIONS

Commission for each property. - Sale of each of the properties, despite the properties being included in a single purchase offer and their sales being approved in a single decree, could generate a separate commission for the special commissioners because the express statutory language provided that each piece of property so sold would constitute a separate sale. Haworth v. Haworth, 100 Va. Cir. 349, 2018 Va. Cir. LEXIS 624 (Norfolk Nov. 26, 2018).

Commission that was more than double the maximum allowable statutory commission had there been a single aggregate sale would be excessive; thus, defendants were each responsible for their respective share of the joint special commissioners' commissions. Haworth v. Haworth, 100 Va. Cir. 349, 2018 Va. Cir. LEXIS 624 (Norfolk Nov. 26, 2018).

Flexibility in awarding commission. - Statute affords courts great flexibility in awarding commissions, as its provision regarding the Special Commissioner commission is permissive and not mandatory. Haworth v. Haworth, 100 Va. Cir. 349, 2018 Va. Cir. LEXIS 624 (Norfolk Nov. 26, 2018).

Attorney fees. - Statutory commission is designed to compensate the Special Commissioners for what they normally would charge as attorney's fees for fulfilling their roles as Special Commissioners; therefore, by awarding a commission, the Special Commissioners are not entitled to any additional attorney's fees for services they provided as Special Commissioners. Haworth v. Haworth, 100 Va. Cir. 349, 2018 Va. Cir. LEXIS 624 (Norfolk Nov. 26, 2018).

§ 8.01-110. Appointment of special commissioner to execute deed, etc.; effect of deed.

A court in a suit wherein it is proper to decree the execution of any deed or writing may appoint a special commissioner to execute the same on behalf of any party in interest and such instrument shall be as valid as if executed by the party on whose behalf it is so executed.

(Code 1950, § 8-670; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 11A M.J. Judicial Sales and Rentings, § 114.

Editor's note. - Most of the cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

Deed passes title of all parties. - A deed by a special commissioner appointed and empowered by the court to convey under this section will pass the title of all the parties to the suit. Hurt v. Jones, 75 Va. 341 (1881).

Commissioner cannot convey land in another state. - A person within the Commonwealth may be decreed to execute a conveyance for lands lying in another state, or to cancel a deed for such lands obtained by fraud; but the courts of this State are without jurisdiction to sell and convey land situated beyond the limits of the State. Poindexter v. Burwell, 82 Va. 507 (1886); Gibson v. Burgess, 82 Va. 650 (1886); Wimer v. Wimer, 82 Va. 890 , 5 S.E. 536 (1886).

Relief should be of an in rem nature. - In a suit for specific performance of a contract to sell land, where personal service was had outside the State, the language of the decree directing the defendant to perform the contract and convey the property to the complainant made it an in personam decree, and hence it went beyond permissible limits. If the complainant was entitled to any relief, it should be of an in rem nature and accomplished by the appointment of a commissioner as provided by this section. Cranford v. Hubbard, 208 Va. 689 , 160 S.E.2d 760 (1968).

Appointment proper. - Order appointing the husband's lawyer as a special commissioner with the authority to execute documents on behalf of the wife regarding the sale of the parties' home was proper because the trial court had authority under § 8.01-110 to make the appointment and did not abuse its discretion in doing so; the lawyer provided the necessary accounting and did not charge a fee. Tromza v. Vossburg, No. 1184-12-4, 2013 Va. App. LEXIS 125 (Ct. of Appeals Apr. 23, 2013).

CIRCUIT COURT OPINIONS

Conveyance by special commissioner. - Trial court declined to enter the decree that the parties presented to it regarding the settlement agreement concerning their property and the partition suit that the one party brought against the second party because there was not adequate evidence in the record to support the entry of such a decree, but the trial court also noted that if the parties so desired, they could have a special commissioner appointed to convey an interest in the real property based on a private settlement agreement; since that would be a conveyance by the special commissioner rather than the trial court, there was no need for the kind of evidentiary support that the trial court required for entry of the party's decree. Early v. Smith, 68 Va. Cir. 492, 2004 Va. Cir. LEXIS 80 (Madison County 2004).

§ 8.01-111. What such deed to show.

Every deed executed by any such commissioner pursuant to the provisions of § 8.01-110 shall specifically set out as nearly as practicable the name of the person on whose behalf the same is executed; provided, that when such deed conveys the right, title or interest of the heirs of a person who is dead it shall be sufficient for such deed to set out that the same is executed on behalf of the heirs of such decedent. But a failure to comply with the provisions of this section shall not affect or invalidate any such deed; and all deeds heretofore executed by any such commissioner in which such persons or heirs are not specifically set out are hereby validated.

(Code 1950, § 8-671; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 11A M.J. Judicial Sales and Rentings, § 113.

§ 8.01-112. Reinstatement of cause to appoint special commissioner to make deed.

Any ended cause may be reinstated for the purpose of entering a decree directing a deed to be made to any party clearly shown by the record to be entitled thereto, or for the purpose of substituting a new commissioner to make a deed in the place of one previously appointed for that purpose, but who has died or become incapacitated to act before making such deed.

(Code 1950, § 8-672; 1977, c. 617.)

§ 8.01-113. When title of purchaser at judicial sale not to be disturbed.

If a sale of property is made under a decree of a court, and such sale is confirmed, the title of the purchaser at such sale shall not be disturbed unless within twelve months from such confirmation the sale is set aside by the trial court or an appeal is taken to the Court of Appeals or allowed by the Supreme Court, and a decree is therein afterwards entered requiring such sale to be set aside. This limitation shall not affect any right of restitution of the proceeds of sale.

(Code 1950, § 8-673; 1977, c. 617; 1984, c. 703.)

Michie's Jurisprudence. - For related discussion, see 11A M.J. Judicial Sales and Rentings, §§ 83, 147, 149; 16 M.J. Rehearing, § 15.

CASE NOTES

I. Decisions Under Current Law.
II. Decisions Under Prior Law.

I. DECISIONS UNDER CURRENT LAW.

This section cannot serve to breathe life into a void decree of sale. Forrer v. Brown, 221 Va. 1098 , 277 S.E.2d 483 (1981).

One not a party may not be divested of ownership. - This section cannot authorize a court by judicial sale to divest one not a party to the suit of his ownership of property. Forrer v. Brown, 221 Va. 1098 , 277 S.E.2d 483 (1981).

When mistake merits setting aside sale. - Not every mistake merits the setting aside of a previously confirmed judicial sale. The mistake must be mutual unless it was induced by the fraud or culpable negligence of the other. Branton v. Jones, 222 Va. 305 , 281 S.E.2d 799 (1981).

Unilateral mistake as to property sold in gross. - Vendors were not entitled to have a sale of property, sold in gross, set aside where the vendors were unilaterally mistaken as to the acreage of the property sold, since the buyer's mere silence concerning the correct boundaries and acreage of the property did not constitute fraud. Branton v. Jones, 222 Va. 305 , 281 S.E.2d 799 (1981).

Mistake irrelevant where sale is in gross. - Where a contract for the sale of land is in gross, such contract is a contract of hazard. The parties to such a sale assume the risk of a deficiency or excess in the number of acres in the property. Where the parties intend a contract of hazard regarding a property's acreage, it is immaterial whether or not the sellers or the buyer, or both, were mistaken as to the number of acres in the tract. Branton v. Jones, 222 Va. 305 , 281 S.E.2d 799 (1981).

Discretion of court in deciding whether to confirm sale. - Prior to confirmation, a court can exercise considerable discretion in deciding whether to confirm a sale, but after confirmation the purchaser at a judicial sale is as much entitled to the benefit of his purchase as a purchaser in pais, and the sale in the one case can be set aside only on such grounds as would be sufficient in the other. Branton v. Jones, 222 Va. 305 , 281 S.E.2d 799 (1981).

Grounds for setting aside sale after confirmation. - After confirmation, a judicial sale cannot be set aside except for fraud, mistake, surprise, or other cause for which equity would give like relief, if the sale had been made by the parties in interest, instead of by the court. Branton v. Jones, 222 Va. 305 , 281 S.E.2d 799 (1981).

II. DECISIONS UNDER PRIOR LAW.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

This section is to be liberally construed. Brenham v. Smith, 120 Va. 30 , 90 S.E. 657 (1916).

Section applies to sales of lands of infants made in suits properly brought for that purpose. Lancaster v. Barton, 92 Va. 615 , 24 S.E. 251 (1896). See also, Cooper v. Hepburn, 56 Va. (15 Gratt.) 551 (1858).

But it is not to be construed to contravene statutes protecting infants. - So far as the statutes for the sale of infants' lands are concerned, it will not be questioned that the primary and controlling consideration underlying their enactment was the welfare of the infants whose lands are to be sold, and in construing this section the purpose to ignore or contravene this consideration may not be imputed to the legislature. Brenham v. Smith, 120 Va. 30 , 90 S.E. 657 (1916).

It does not apply to a proceeding to compel purchasers to comply with their contracts by paying the purchase money to the persons legally entitled to receive it. Whitehead v. Bradley, 87 Va. 676 , 13 S.E. 195 (1891).

Sale is not complete until confirmation and conveyance. - Whether the sale be by a master, commissioner, or other functionary authorized by the court to conduct the sale, the bargain is not ordinarily considered as complete until the sale is confirmed and the conveyance is made. Brock v. Rice, 68 Va. (27 Gratt.) 812 (1876); Terry v. Coles, 80 Va. 695 (1885).

Section does not protect sales under void decrees. - In no case has this section been applied where the relief sought was based on a void decree. So where the court was without jurisdiction to issue the decree, this section cannot be applied. Gee v. McCormick, 142 Va. 173 , 128 S.E. 541 (1925). See also, Brenham v. Smith, 120 Va. 30 , 90 S.E. 657 (1916).

Since the decree of sale was void as to complainants, the purchasers under it could take no benefit from the provision of this section. Finkel Outdoor Prods., Inc. v. Bell, 205 Va. 927 , 140 S.E.2d 695 (1965).

Title is not to be disturbed although decree is erroneous or voidable. - It appears from the history and the language of this section that the title of a purchaser at a judicial sale shall not be disturbed after 12 months from the date of the decree of confirmation, even though the decree is erroneous or voidable. Robertson v. Stone, 199 Va. 41 , 97 S.E.2d 739 (1957).

Confirmation relates back to sale. - After the sale is confirmed, the confirmation relates back to the sale, and the purchaser is entitled to everything he would have been entitled to had the confirmation and conveyance been contemporaneous with the sale. Taylor v. Cooper, 37 Va. (10 Leigh) 317 (1839).

Limitation is suspended by bill of review. - Where the decree setting aside the proceedings under the original bill and dismissing the same was entered 12 months after the confirmation of the sale, but the bill of review was filed before the expiration of the 12 months, the period of limitation was suspended until the entry of the decree complained of. Gee v. McCormick, 142 Va. 173 , 128 S.E. 541 (1925). See Anderson v. Biazzi, 166 Va. 309 , 186 S.E. 7 (1936).

This section limits § 8.01-322 , which allows a person not served with process to have a rehearing of the case within two years from the date of judgment or decree and any injustice corrected. Robertson v. Stone, 199 Va. 41 , 97 S.E.2d 739 (1957).

Section does not defeat title of one not party to suit. - It was clearly not the purpose of the legislature by the enactment of this section to authorize a court by judicial sale to divest one of his ownership of property, who is not a party to the suit. Such a procedure would be without due process of law. Mountain Mission School, Inc. v. Buchanan Realty Corp., 207 Va. 518 , 151 S.E.2d 403 (1966).

CIRCUIT COURT OPINIONS

Action barred. - Injury to plaintiff resulted at time a court order was entered approving a sale of certain property on July 7, 2015, and plaintiff had 12 months to pursue its action to either set aside the sale or take some other measure to protect its interest. Plaintiff's action, which was filed on February 8, 2017, was time barred by the statute of limitations. Frost Funeral Home, LLC v. Dolinger, 96 Va. Cir. 34, 2017 Va. Cir. LEXIS 165 (Washington County May 31, 2017).

Article 12. Detinue.

§ 8.01-114. When property to be taken by officer; summary of evidence, affidavits and report to be filed.

A proceeding in detinue to recover personal property unlawfully withheld from the plaintiff may be brought on a warrant or motion for judgment if pretrial seizure is not sought at the time of filing. A petition in detinue for pretrial seizure pursuant to this article may be filed either to commence the detinue proceeding or may be filed during the pendency of a detinue proceeding which commenced on a warrant or motion for judgment. If a petition is filed, it shall:
1. Describe the kind, quantity and estimated fair market value of the specific personal property as to which plaintiff seeks possession;
2. Describe the basis of the plaintiff's claim of entitlement to recover the property, with such certainty as will give the adverse party reasonable notice of the true nature of the claim and the particulars thereof and, if based on a contract to secure the payment of money, the amount due on such contract; and
3. Allege one or more of the grounds mentioned in § 8.01-534 and set forth specific facts in support of such allegation. Further, if a petition is filed, a judge, or a magistrate appointed pursuant to Article 3 (§ 19.2-33 et seq.) of Chapter 3 of Title 19.2, may issue an order or other process directed to the sheriff or other proper officer, as the case may be, commanding him to seize the property for the recovery of which such action or warrant is brought, or a specified portion thereof, and deliver same to the plaintiff pendente lite under the circumstances hereinafter set forth.
The judge or the magistrate may issue such an order or other process in accordance with the prayer of the petition after an ex parte review of the petition only upon a determination that: (i) the petition conforms with subsection A and (ii) there is reasonable cause to believe that the grounds for detinue seizure described in the petition exist. The plaintiff praying for an order shall, at the time that he files his petition, pay the proper costs, fees and taxes, and in the event of his failure to do so, the order shall not be issued.
The judge or magistrate, as the case may be, may receive evidence only in the form of a sworn petition which shall be filed with the papers in the cause.
The order commanding the seizure of property shall be issued and served together with the form for requesting a hearing on a claim of exemption from seizure as provided in § 8.01-546.1 . The order shall be issued and returned as provided in § 8.01-541 and may be issued or executed on any day, including a Saturday, Sunday or other legal holiday. Service shall be in accordance with the methods described in § 8.01-487.1 . The provisions of § 8.01-546.2 shall govern claims for exemption. (Code 1950, § 8-586; 1973, c. 408; 1974, c. 122; 1977, c. 617; 1978, c. 403; 1986, c. 341; 1993, c. 841.)

REVISERS' NOTE.

This section, former § 8-586, and others in this article were amended in 1974 to make the procedure comply with the requirements set out in Fuentes v. Shevin, 407 U.S. 67 (1972) and Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S. Ct. 1820, 23 L. Ed. 2d 349 (1969). These two cases were further discussed in Mitchell v. W. T. Grant, 416 U.S. 600 (1974) in which the Supreme Court restricted the scope of the two former cases. In general, no substantive changes have been made to former § 8-586 ff.

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Cross references. - As to hearing on order or process issued under this section, see § 8.01-119 .

For rules of court relating to practice and procedure in civil actions, see Rules 3:1 through 3:25.

Law review. - For comment on cumulative remedies under article 9 of the U.C.C., see 14 Wm. & Mary L. Rev. 213 (1972). For article discussing the constitutionality of Virginia's detinue and attachment statutes, see 12 U. Rich. L. Rev. 157 (1977). For article on the abolition of the forms of action in Virginia, see 17 U. Rich. L. Rev. 273 (1983).

For comment, "Commonwealth and Constitution," see 48 U. Rich. L. Rev. 415 (2013).

Michie's Jurisprudence. - For related discussion, see 6A M.J. Detinue and Replevin, §§ 2, 10; 12A M.J. Limitation of Actions, § 10.

CASE NOTES

I. Decisions Under Current Law.
II. Decisions Under Prior Law.

I. DECISIONS UNDER CURRENT LAW.

Fixing damages on basis of affidavit held error where not supported by evidence. - The trial court erred in relying exclusively on an affidavit filed by the plaintiff in fixing the amount of the judgment when it was clear that the evidence at the hearing did not support the amount awarded. Before fixing the amount of the final judgment, the court should have held a further hearing on the damage issue. At that hearing, additional relevant evidence on the issue of damages should have been received from all parties and the respective parties should have been allowed to prove with reasonable certainty the worth of the property seized by the plaintiff. J.I. Case Co. v. United Va. Bank, 232 Va. 210 , 349 S.E.2d 120 (1986).

Judgment against plaintiff where property seized and placed beyond court's jurisdiction. - Where the plaintiff, after seizing the property under authority of statute and placing it beyond the jurisdiction of the court, decides to manipulate the statutory scheme by exercising the privilege of nonsuit, the detinue statutes contemplate entry of a specific judgment in the detinue proceedings against the plaintiff for the value of the property. J.I. Case Co. v. United Va. Bank, 232 Va. 210 , 349 S.E.2d 120 (1986).

Mandamus for forced entry error. - Where under the common law, it was unlawful for a sheriff to break the doors of a person's house to arrest that person in a civil suit in debt or trespass, where this venerable principle underlies the whole law dealing with the right to break and enter a dwelling house for civil recovery of property, and where the General Assembly has not plainly manifested an intent to abrogate this common law principle, the trial court erred in issuing writ of mandamus directing the sheriff to use due diligence and reasonable means to execute all validly issued detinue seizure orders and to take all appropriate action necessary to seize personal property including forced entry into the premises where such property was located or believed to be located. Williams v. Matthews, 248 Va. 277 , 448 S.E.2d 625 (1994).

II. DECISIONS UNDER PRIOR LAW.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The terms "this article" and "this section," as used below, refer to former provisions.

The writ of seizure under the provisions of this section is intended to be only ancillary to the action of detinue, and can only be issued in a pending suit. Preston v. Legard, 160 Va. 364 , 168 S.E. 445 (1933).

Jurisdiction of equity to decree delivery of papers not affected. - This article does not affect the jurisdiction of a court of equity to decree the specific delivery of title papers to heirs at law, devisees and other persons properly entitled thereto where such papers are wrongfully withheld. Kelly v. Lehigh Mining & Mfg. Co., 98 Va. 405 , 36 S.E. 511 (1900).

Insolvency of defendant no ground for injunction. - The insolvency of a defendant in detinue is no ground for an injunction to prevent the removal or disposition of the subject of litigation. An ample remedy is afforded the plaintiff by this section. Langford & Bro. v. Taylor, 99 Va. 577 , 39 S.E. 223 (1901).

CIRCUIT COURT OPINIONS

Statute of frauds held inapplicable. - Where landlords sued their tenants for detinue based on an oral agreement for the sale of personalty located at the leased premises, pursuant to § 8.2-201(3)(b), the tenants' statute of frauds defense regarding contracts for the sale of goods failed in the face of their sworn testimony concerning that oral agreement. Lee v. Park, 73 Va. Cir. 219, 2007 Va. Cir. LEXIS 80 (Fairfax County 2007).

Landlord could not recover fixtures or insufficiently identified personalty. - Landlords' detinue claim against their tenants under § 8.01-114 et seq. failed because the alleged agreement largely involved a sale of fixtures rather than personalty, the landlords failed to prove the items of personal property sought had value, and they failed to identify them with sufficient specificity. Lee v. Park, 73 Va. Cir. 219, 2007 Va. Cir. LEXIS 80 (Fairfax County 2007).

§ 8.01-115. Bond required as prerequisite.

No such order or process, however, shall be issued until a bond, conforming with the requirements of § 8.01-537.1 , is posted with the judge or magistrate, in a penalty at least double the estimated fair market value of the property claimed, payable to the defendant, with the additional condition to redeliver the property so seized to the defendant, or to the person from whose possession it was taken, if the right to the possession shall be adjudged against the plaintiff.

(Code 1950, § 8-587; 1977, cc. 230, 617; 1986, c. 341; 1993, c. 841.)

Editor's note. - Acts 1977, c. 230, amended former § 8-587, corresponding to this section. In the section as it stood prior to the amendment, the bond was "to be approved by and filed with the clerk or trial justice." The amendment substituted "judge, substitute judge or magistrate" for "or trial justices" in the quoted phrase. Pursuant to § 30-152 and Acts 1977, c. 617, cl. 4, the Code Commission has substituted "clerk, judge, substitute judge or magistrate" for "court" near the beginning of § 8.01-115 as enacted by Acts 1977, c. 617, in the section as set out above.

Michie's Jurisprudence. - For related discussion, see 6A M.J. Detinue and Replevin, § 19.

CASE NOTES

Court retains jurisdiction over property until parties' rights determined. - The right of possession given to a detinue plaintiff under Virginia's statutory scheme contemplates retention of the seized property within the jurisdiction of the trial court until the substantive rights of the parties are finally determined. J.I. Case Co. v. United Va. Bank, 232 Va. 210 , 349 S.E.2d 120 (1986).

Omission of condition as to payment of damages does not vitiate bond. - A bond providing for payment of costs, but omitting all reference to payment of damages, also prescribed, is not totally vitiated by such omission, but may be sued on as a statutory bond for the one good condition expressed therein. Jackson v. Hopkins, 92 Va. 601 , 24 S.E. 234 (1896) (decided under prior law).

§ 8.01-116. Return of property to defendant or other claimant.

Subject to the provisions of subsection B below, the defendant in any such proceeding, or any other person claiming title to the property so seized and taken possession of by the officer, may have such property returned to him at any time after such seizure upon executing a bond, with sufficient surety, to be approved by the officer, payable to the plaintiff, in a penalty at least double the estimated value of the property. The bond shall contain a condition to (i) pay all costs and damages which may be awarded against the defendant in the proceeding and all damages which may accrue to any person by reason of the return of the property to the defendant or the claimant and (ii) have the property forthcoming to answer any judgment or order of the court or judge respecting the same. The bond shall be delivered to the officer and returned by him to the office of the clerk. The officer, on receiving the bond, shall forthwith return the property taken by him to the defendant or any other person claiming title thereto or from whose possession it was taken.
In any such proceeding, upon application of the defendant after reasonable notice to the plaintiff or his attorney, the judge of the court in which the proceeding is pending may order the property returned to the defendant upon such lesser security and upon such terms as in the nature of the case may be just and reasonable.
If no bond or security is delivered to the officer after his seizing and taking possession of such property, the property, if in the hands of the officer, shall be kept by him. However, if the property is perishable or expensive to keep, it may be sold by order of the court in the same manner as if it were a sale under execution.
(Code 1950, § 8-588; 1973, c. 408; 1977, c. 617; 1993, c. 841.)

CASE NOTES

§ 8.01-117. Exceptions to sufficiency of bonds.

Either party may file exceptions to the sufficiency of the bond of the other or of the claimant of the property, if he has given bond, or such claimant may file exceptions to the sufficiency of the bond of either party. The court before whom the proceeding is pending, may, on the motion of either party or of the claimant, after reasonable notice to the others, pass upon such exceptions and make such order thereupon as may be just and reasonable.

(Code 1950, § 8-589; 1977, c. 617; 1993, c. 841.)

CASE NOTES

Exceptions of claimant to bond do not alter status of parties. - It was contended that the corporation court had jurisdiction to issue an alias summons against a defendant because his wife, as a claimant, by an indorsement of her exceptions to the sufficiency of the seizure bond filed in the papers, made herself a party to the action. There was no merit in this contention. The plaintiff in no wise made the wife a party to the suit, or contemplated that she should be a party, and the fact that she took exception to the sufficiency of the bond under this section did not alter the status of the contemplated defendant. Preston v. Legard, 160 Va. 364 , 168 S.E. 445 (1933) (decided under prior law).

§ 8.01-118.

Repealed by Acts 1986, c. 341.

§ 8.01-119. Hearing to review issuance of order or process under § 8.01-114 or to consider request for such order or process.

CIRCUIT COURT OPINIONS

Preclusion. - When a former employer sued a former employee for, inter alia, breach of fiduciary duty and misappropriation of trade secrets, a notation entered in a detinue action the employer previously filed against the former employee stating "Vacated, Dismissed 1/9/04" was not the kind of final judgment in that action that had any kind of preclusive effect in the employer's subsequent suit against the former employee because, among other reasons, a final trial could still occur in the detinue action under § 8.01-119 . Mario Indus. of Va., Inc. v. Cook, 68 Va. Cir. 495, 2004 Va. Cir. LEXIS 82 (Roanoke 2004).

§ 8.01-120. No verdict as to some items; omission of price or value.

If in such detinue action, on an issue concerning several things, in one or more counts, no verdict be found for part of them, it shall not be error, but the plaintiff shall be barred of his title to the things omitted; and if the verdict omit the price or value, the court may at any time have a jury impaneled to ascertain the same.

(Code 1950, § 8-592; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 6A M.J. Detinue and Replevin, § 14.

CIRCUIT COURT OPINIONS

Items not identified in verdict form. - Although this section provided that if a verdict in a detinue action was not found for some of the items claimed, that verdict was not in error, a new trial was awarded on all issues involving the status of the items that were not identified in the first part of the verdict form. Coker v. Miller, 71 Va. Cir. 142, 2006 Va. Cir. LEXIS 77 (Greene County 2006).

§ 8.01-121. Final judgment.

When final judgment is rendered on the trial of such detinue proceeding, the court shall dispose of the property or proceeds according to the rights of those entitled. When, in any such proceeding, the plaintiff prevails under a contract which, regardless of its form or express terms, was in fact made to secure the payment of money to the plaintiff or his assignor, judgment shall be for the recovery of the amount due the plaintiff thereunder or for the specific property, and costs. The defendant shall have the election of paying the amount of such judgment or surrendering the specific property. The court may grant the defendant a reasonable time not exceeding thirty days, within which to make the election upon such security being given as the court may deem sufficient. When the property involves an animal as defined in § 3.2-6500, the court may order the return of the animal to the prevailing plaintiff without regard to any alternative method of recovery.

If the defendant elects to surrender the property as aforesaid, upon delivery of the property to the plaintiff or repossession thereof by him, the plaintiff may proceed to sell the property in accordance with the applicable provisions of the Uniform Commercial Code (Part 6 (§§ 8.9A-601 et seq.) of Title 8.9A) with all the rights and responsibilities therein provided.

(Code 1950, § 8-593; 1964, c. 219; 1977, c. 617; 1987, c. 1; 1993, c. 841.)

REVISERS' NOTE.

Former § 8-593 has been modified to allow the plaintiff to recover a deficiency judgment.

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Cross references. - As to affirmation of judgment for specific personal property, see § 8.01-123 .

As to what writs may issue on judgments for personal property, see § 8.01-472 .

Editor's note. - At the direction of the Virginia Code Commission, " § 3.2-6500" was substituted for " § 3.1-796.66" to conform to Acts 2008, c. 860.

Law review. - For note, "Effect of the Uniform Commercial Code on Virginia Law," see 20 Wash. & Lee L. Rev. 267 (1963).

Michie's Jurisprudence. - For related discussion, see 3C M.J. Commercial Law, § 95; 6A M.J. Detinue and Replevin, § 15.

CASE NOTES

Effect of bankruptcy provision. - Bankruptcy law controls all property interests of a debtor and his/her relationships with creditors; therefore, to the extent that any state law conflicts with a Bankruptcy Code provision, it is of no force and effect, especially when such a law would have an adverse impact on a debtor's financial rehabilitation and fresh start by permitting creditors to obtain personal judgments in violation of the discharge injunctive order under the premise that it is in lieu of property when it is nothing more than an unsecured personal liability deficiency of its secured claim. Martin v. AVCO Fin. Servs., 157 Bankr. 268 (Bankr. W.D. Va. 1993).

Sanctions not imposed for creditor's apparent good faith but impermissible use of judgment proceedings. - Creditor who sought a warrant of detinue for recovery of collateral after debtor was discharged in bankruptcy appeared to have acted in the good-faith, albeit mistaken, belief that its actions in getting judgment against debtor, garnishing the debtor's wages, and threatening criminal action for disposal of collateral were permissible; therefore, sanctions would not be imposed on the creditor. Martin v. AVCO Fin. Servs., 157 Bankr. 268 (Bankr. W.D. Va. 1993).

Former corresponding provisions of this section were enacted for the benefit of the vendee and give him and not the vendor the right of election. Ashworth v. Fleenor, 178 Va. 104 , 16 S.E.2d 309 (1941) (decided under prior law).

Judgment for price or property. - In an action for detinue it was held that judgment should be for the unpaid purchase price or, in the alternative, the property as required by this section. Osmond-Barringer Co. v. Hey, 7 Va. L. Reg. (n.s.) 175 (1921) (decided under prior law).

Debt extinguished upon surrender of property. - While this section does not in terms provide for the extinguishment of the debt upon the surrender of the property by the defendant, the conclusion is inescapable that such was the legislative intent, "regardless of the form of the contract or its express terms." Lloyd v. Federal Motor Truck Co., 168 Va. 72 , 190 S.E. 257 (1937) (decided under prior law).

Under this section defendant cannot by election merely abide the judgment. He must, in order to avail himself of the benefit conferred by the statute in this regard, elect to pay the judgment, and, if necessary, the court will require the execution of a security bond to insure payment. Lloyd v. Federal Motor Truck Co., 168 Va. 72 , 190 S.E. 257 (1937) (decided under prior law).

§ 8.01-122. Charges for keeping property.

The legal charges, if any, for keeping any such property, while in the possession of the officer, shall be paid by the plaintiff and certified by the officer to the court who, in case such order or process be not abated and final judgment be rendered for the plaintiff, shall tax the same along with the other costs of the suit.

(Code 1950, § 8-594; 1977, c. 617.)

§ 8.01-123. Recovery of damages sustained for property withheld during appeal.

When a judgment for specific personal property is affirmed by an appellate court, or an injunction to such judgment is dissolved, the person who is entitled to execution of such judgment, or who would be entitled if execution had not been had, may, on motion to the court from which such execution has issued, or might issue, after fifteen days' notice to the defendant or his personal representative, have a jury impaneled to ascertain the damages sustained by reason of the detention of such property, subsequent to such judgment, or if it was on a verdict, subsequent to such verdict; and judgment shall be rendered for the damages, if any, so ascertained.

(Code 1950, § 8-595; 1977, c. 617.)

Article 13. Unlawful Entry and Detainer.

§ 8.01-124. Motion for judgment in circuit court for unlawful entry or detainer.

If any forcible or unlawful entry be made upon lands, or if, when the entry is lawful and peaceable, the tenant shall detain the possession of land after the right has expired, without the consent of him who is entitled to the possession, the party so turned out of possession, no matter what right of title he had thereto, or the party against whom such possession is unlawfully detained may file a motion for judgment in the circuit court alleging that the defendant is in possession and unlawfully withholds from the plaintiff the premises in question.

(Code 1950, § 8-789; 1954, c. 549; 1975, c. 235; 1977, c. 617.)

REVISERS' NOTE.

This is a clarification of former § 8-789 rewritten also to be consistent with other sections.

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Cross references. - For limitation of action for unlawful entry or detainer, see § 8.01-236 .

As to venue, see § 8.01-261 , subdivision 3.

Law review. - For survey of Virginia law on property for the year 1974-1975, see 61 Va. L. Rev. 1834 (1975). For article discussing the constitutionality of Virginia's detinue and attachment statutes, see 12 U. Rich. L. Rev. 157 (1977).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Adverse Possession, § 55; 4C M.J. Constitutional Law, § 133; 5A M.J. Cotenancy, § 43; 8B M.J. Forcible Entry and Detainer, §§ 2, 3, 15, 16, 20; 12A M.J. Limitation of Actions, § 9; 13A M.J. Motions for Judgment, § 2; 21A M.J. Words and Phrases.

CASE NOTES

I. Decisions Under Current Law.
II. Decisions Under Prior Law.

I. DECISIONS UNDER CURRENT LAW.

In order to maintain cause of action for unlawful detainer, plaintiff must prove that defendant forcibly or unlawfully entered the land, maintained possession of the land without a right to do so, without plaintiff's consent and withheld possession from plaintiff. Cherokee Corp. of Linden, Inc. v. Capital Skiing Corp., 222 Bankr. 281 (Bankr. E.D. Va. 1998), aff'd, 191 F.3d 447 (4th Cir. 1999).

What statute contemplates. - Statute plainly contemplates two, separate scenarios: the first where a purported owner enters the property and takes it by force; and the second where one whose right to possession has expired for whatever reason remains on the property. Seitz v. Fannie Mae,, 2012 U.S. Dist. LEXIS 162927 (E.D. Va. Nov. 14, 2012).

Validity of title. - This was a clear example of a case in which the unlawful detainer action turned upon the validity of the title to the property. It appeared that, under Virginia law, the unlawful detainer action pending in the Circuit Court for Hanover County should be considered an action quasi in rem. Seitz v. Fannie Mae,, 2012 U.S. Dist. LEXIS 162927 (E.D. Va. Nov. 14, 2012).

Proper title is irrelevant to claim of unlawful detainer because lawful possession of property is the only issue to be determined in a claim for unlawful detainer. Cherokee Corp. of Linden, Inc. v. Capital Skiing Corp., 222 Bankr. 281 (Bankr. E.D. Va. 1998), aff'd, 191 F.3d 447 (4th Cir. 1999).

Purchase of property at trustee's auction. - See Cherokee Corp. of Linden, Inc. v. Capital Skiing Corp., 222 Bankr. 281 (Bankr. E.D. Va. 1998), aff'd, 191 F.3d 447 (4th Cir. 1999).

Applied in Kennedy v. Block, 784 F.2d 1220 (4th Cir. 1986); Sentara Enters., Inc. v. CCP Assocs., 243 Va. 39 , 413 S.E.2d 595 (1992).

II. DECISIONS UNDER PRIOR LAW.

A. GENERAL CONSIDERATION.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The terms "this statute," "this act," and "this section," as used below, refer to former provisions.

Statute liberally construed. - As the defendant can in no case be turned out of possession, unless it is apparent that he ought to surrender the possession on the demand of the plaintiff, and to retain it would be unjust, this statute, being remedial, should be given a liberal construction. Allen v. Gibson, 25 Va. (4 Rand.) 468 (1826).

Purpose of action. - The remedy of unlawful entry and detainer was designed to protect the actual possession, whether rightful or wrongful, and to afford summary redress and restitution. Olinger v. Shepherd, 53 Va. (12 Gratt.) 462 (1855); Davis v. Mayo, 82 Va. 97 (1886); Fore v. Campbell, 82 Va. 808 , 1 S.E. 180 (1887); Mears v. Dexter, 86 Va. 828 , 11 S.E. 538 (1890); Tayloe v. Rose, 10 Va. L. Reg. 1002 (1904).

While the purpose of this and the following sections is to prevent violence and disturbances which are likely to follow when one entitled to the lawful possession of premises undertakes to assert his rights by force, the right of action is civil in character and the result, if the plaintiff prevails, is merely to restore the possession to one from whom it has been forcibly taken, or to give possession to one from whom it is being unlawfully withheld. The judgment has only the effect of placing the parties in status quo. Shorter v. Shelton, 183 Va. 819 , 33 S.E.2d 643 (1945).

A warrant for unlawful entry and detainer is a civil action. Kincheloe v. Tracewells, 52 Va. (11 Gratt.) 587 (1854).

Unlawful detainer and ejectment distinguished. - In ejectment, title or right of possession is always involved. The design of unlawful detainer is to protect the actual possession whether rightful or wrongful, and to afford summary redress and restitution. Forcible entry of the owner is unlawful. Entry of stranger is unlawful, whether forcible or not. Judgment only restores the status quo, but settles nothing as to the title or right of possession. Davis v. Mayo, 82 Va. 97 (1886). See also, Olinger v. Shepherd, 53 Va. (12 Gratt.) 462 (1855).

Title is not involved in the action of unlawful detainer, and evidence of title is often inadmissible. Allen v. Gibson, 25 Va. (4 Rand.) 468 (1826); Emerick v. Tavener, 50 Va. (9 Gratt.) 220 (1852); Olinger v. Shepherd, 53 Va. (12 Gratt.) 462 (1855). But see, Corbett v. Nutt, 59 Va. (18 Gratt.) 624 (1868), aff'd, 77 U.S. 464, 19 L. Ed. 976 (1870); Tayloe v. Rose, 10 Va. L. Reg. 1002 (1904).

Use of reasonable force by owner. - This section does not in express terms deprive the owner of the common-law right to take possession by reasonable force of premises to which he may be entitled. The real owner of the premises, having a right of entry, will not commit a trespass by entering, though with force, unless he also commit a breach of the peace, but he may be turned out in an action of forcible entry. Shorter v. Shelton, 183 Va. 819 , 33 S.E.2d 643 (1945).

B. ELEMENTS.

1. POSSESSION.

It is necessary to show that the defendant unlawfully withholds the possession. Power v. Tazewells, 66 Va. (25 Gratt.) 786 (1875).

Possession under claim of title is sufficient to sustain an action of forcible entry and detainer against one entering without title. Fore v. Campbell, 82 Va. 808 , 1 S.E. 180 (1887).

Actual occupancy of whole tract not required. - The possession to which the proceeding for unlawful entry will apply, is not confined to actual occupancy or enclosure, but it is any possession which is sufficient to sustain an action of trespass. And thus actual possession of a part of a tract of land under a bona fide claim and color of title to the whole is such a possession of the whole or so much thereof as is not in the adverse possession of others, as will sustain this proceeding. Olinger v. Shepherd, 53 Va. (12 Gratt.) 462 (1855).

Color of title without possession, actual or constructive, is not sufficient to support an action of unlawful detainer. Hot Springs Lumber & Mfg. Co. v. Sterrett, 108 Va. 710 , 62 S.E. 797 (1908).

Inference of possession at time action brought. - Where the proof shows that a defendant in an action of unlawful detainer had been in possession of the premises claimed in the declaration for five years before the action was brought and always refused to give up possession, the jury might and should infer that he was in possession at the time of action brought. Hence, the court must so find on a demurrer to the evidence by the defendant. Hobday v. Kane, 114 Va. 398 , 76 S.E. 902 (1913). See also, Kincheloe v. Tracewells, 52 Va. (11 Gratt.) 587 (1854).

2. RIGHT OF POSSESSION.

Not necessary in order to recover. - If the defendant enters upon lands of the plaintiff unlawfully, the plaintiff is entitled to recover possession without any regard to the right of possession, the actual possession giving the plaintiff the right of possession against any party not having the right of entry. Tayloe v. Rose, 10 Va. L. Reg. 1002 (1904); Olinger v. Shepherd, 53 Va. (12 Gratt.) 462 (1855).

May recover for ouster from lands of State. - In a proceeding for an unlawful entry or detainer, if the defendant has entered unlawfully, the plaintiff is entitled to recover without any regard to the question of his right of possession. This though the land from which he is ousted is the land of the State. Olinger v. Shepherd, 53 Va. (12 Gratt.) 462 (1855).

One with right of immediate possession may be liable. - A person may render himself liable to an action of forcible entry and detainer by entering on his own premises, even when he has the right of immediate possession. Tayloe v. Rose, 10 Va. L. Reg. 1002 (1904); Olinger v. Shepherd, 53 Va. (12 Gratt.) 462 (1855).

3. THE FORCE REQUIRED.

To sustain a complaint for forcible entry, the force must be actual, not constructive. Otherwise, the remedy given for an unlawful entry would be unnecessary. Pauley v. Chapman, 41 Va. (2 Rob.) 235 (1843).

But entry of a stranger is unlawful whether forcible or not. Davis v. Mayo, 82 Va. 97 (1886).

If an entry on land, though peaceable, be unlawful, the owner may recover the possession from the intruder in an action of unlawful entry and detainer. Allen v. Gibson, 25 Va. (4 Rand.) 468 (1826).

C. BY AND AGAINST WHOM ACTION LIES.

1. IN GENERAL.

One in possession under agreement to purchase cannot be ousted before his lawful possession is terminated by demand or otherwise. Williamson v. Paxton, 59 Va. (18 Gratt.) 475 (1868).

But such possession may be terminated by the acceptance of a lease. Locke v. Frasher, 79 Va. 409 (1884).

Under this act, a mortgagee may obtain possession of the mortgaged premises after forfeiture, by the mode of proceeding therein pointed out. Allen v. Gibson, 25 Va. (4 Rand.) 468 (1826).

One tenant in common may have an action of unlawful entry and detainer for the whole land, against any party having no legal right whatever, without joining his cotenant. Allen v. Gibson, 25 Va. (4 Rand.) 468 (1826).

A remainderman may recover in an action of unlawful detainer land conveyed by the life tenant to a third party, provided he himself did not join in the grant. Such action may be brought within three years from the death of the life tenant. Hope v. Norfolk & W.R.R., 79 Va. 283 (1884).

As may trustees. - It is immaterial to the support of the action of unlawful detainer whether the plaintiffs acquired any personal ownership in the property by the deeds. Allen v. Paul, 65 Va. (24 Gratt.) 332 (1874). See also, Davis v. Mayo, 82 Va. 97 (1886).

And occupant of public lands for oyster beds. - A person who has obtained an assignment of certain oyster beds for the planting and sowing of oysters, has paid the tax and had the beds staked off as required, has such an exclusive interest in them, that he may maintain an action of unlawful detainer against a party who enters upon said beds and holds them against him. Power v. Tazewells, 66 Va. (25 Gratt.) 786 (1875).

And city. - A city which was the owner of the ground which it had not disposed of, covered by water, both as riparian proprietor and as having had long possession thereof, could maintain an action of unlawful entry and detainer against any intruder upon said water lots. Norfolk City v. Cooke, 68 Va. (27 Gratt.) 430 (1876).

Vendor cannot maintain action after sale. - One who has sold to another a tract of land on condition and has afterwards conveyed such tract to a third party cannot, on failure to perform the condition, maintain an action of unlawful detainer for possession of that tract in his own name. Dobson v. Culpepper, 64 Va. (23 Gratt.) 352 (1873).

2. LANDLORD AND TENANT.

The general rule is that the possession of the tenant is the possession of the landlord, and is not adverse to him, and the tenant will not be allowed to deny his landlord's title. Dobson v. Culpepper, 64 Va. (23 Gratt.) 352 (1873); Jordan v. Katz, 89 Va. 628 , 16 S.E. 866 (1893); Reusens v. Lawson, 91 Va. 226 , 21 S.E. 347 (1895).

The operation of this rule is not affected by the fact that the tenant is in actual possession at the time he accepts the lease. By such acceptance he as effectually recognizes the title and possession of the lessor as if he had entered and taken possession under and by virtue of the lease itself. Emerick v. Tavener, 50 Va. (9 Gratt.) 220 (1852); Locke v. Frasher, 79 Va. 409 (1884); Jordan v. Katz, 89 Va. 628 , 16 S.E. 866 (1893).

Grantee from landlord must sue tenant. - Where a landlord sells and conveys to a purchaser land in the possession of a tenant of the landlord, and the tenant refuses to surrender possession, the grantee is the proper person to bring unlawful detainer to recover possession of the tenant. Harrison v. Middleton, 52 Va. (11 Gratt.) 527 (1854); Hobday v. Kane, 114 Va. 398 , 76 S.E. 902 (1913).

Tenant alienating part or all of premises remains liable to his lessor in an action to recover possession of the whole premises, if possession be withheld after termination of the tenancy, whether such alienation be by sublease or conveyance in fee with warranty, and whether the action be ejectment or unlawful detainer. Emerick v. Tavener, 50 Va. (9 Gratt.) 220 (1852).

Section provides adequate remedy to tenant not put in possession. - A tenant sued his landlord for damages alleged to be due by reason of the failure of the landlord to put the tenant in possession of the property which was being held by a former tenant. In the absence of express contract the landlord owed no duty to put the tenant into actual possession of the property but only to put him into legal possession, because this section, providing a summary remedy for unlawful entry or detainer, gives the tenant an adequate, simple and summary remedy for such a wrong. This section specifically provides that unlawful detainer shall lie for one entitled to possession in any case in which a tenant shall detain the possession of land after his right has expired without the consent of him who is entitled to possession. Hannan v. Dusch, 154 Va. 356 , 153 S.E. 824 (1930).

Unlawful detainer is the proper action to be brought by the lessee of a ferry and the wharfs, docks, landings and other property used for the purposes of the ferry against a third person who is in the possession of, and unlawfully withholds from him, a part of the land leased by him. The action is not to recover a mere franchise, but land leased to the plaintiff. Consolvo v. Ferries Co., 112 Va. 318 , 71 S.E. 634 (1911).

D. NOTICE TO QUIT AND DEMAND OF POSSESSION.

Notice necessary if defendant did not obtain possession adversely. - If defendant holds land not adversely but under the plaintiff, notice to quit or demand of possession must be shown before the action of unlawful detainer can be maintained. Williamson v. Paxton, 59 Va. (18 Gratt.) 475 (1868); Pettit v. Cowherd, 83 Va. 20 , 1 S.E. 392 (1887); Johnson v. Goldberg, 207 Va. 487 , 151 S.E.2d 368 (1966).

But where the defendant, in his answer, denies that he is a tenant of the plaintiff, he holds the land adversely, and is not entitled to a notice to vacate. Johnson v. Goldberg, 207 Va. 487 , 151 S.E.2d 368 (1966).

E. DEFENSES.

When equitable defenses available. - In unlawful detainer, as well as in ejectment, under plea of not guilty, defendant can avail himself of equitable defenses, but only when "there is a writing stating the purchase and the terms thereof, signed by the vendor or his agent." Dobson v. Culpepper, 64 Va. (23 Gratt.) 352 (1872); Locke v. Frasher, 79 Va. 409 (1884).

Requisites when defendants put in possession by plaintiffs. - In an action of unlawful detainer, where the defendants have been put into possession of the premises by the plaintiffs, the defendants cannot set up a plea of adverse possession unless they prove that they disclaimed to hold of the plaintiffs or bona fide abandoned possession of the premises or asserted and claimed an adverse right to the premises, with notice thereof to the plaintiffs three years before the institution of the action. Allen v. Paul, 65 Va. (24 Gratt.) 332 (1874). See also, Buchanan v. Norfolk S.R.R., 150 Va. 17 , 142 S.E. 405 (1928).

Lessee estopped to deny lessor's title. - The lease being for a certain quantity of land, situate as therein described, and lessee having executed it under his hand and seal, and thereby recognized the description and boundaries therein specified, and that he then held the same in possession, and the warrant being for the precise tenement described in the lease, neither lessee, nor one claiming under him, can be entertained to deny that the tenement had its boundaries, or that they were within them. Emerick v. Tavener, 50 Va. (9 Gratt.) 220 (1852).

Except when obtained by fraud. - A person, possessing and claiming title to land, supposing another to have better title, took a lease from him. In an action by the lessor to recover possession, the tenant may set up such mistake and show he had good title to the land, provided such mistake was induced by the lessor through misrepresentations amounting to fraud. Alderson v. Miller, 56 Va. (15 Gratt.) 279 (1858); Locke v. Frasher, 79 Va. 409 (1884).

Compliance with contract of sale good defense. - When a conveyance is not made to purchaser who fails to fulfill his contract, and the vendor conveys to another and brings unlawful detainer against the original purchaser, compliance with the contract is a good defense. Dobson v. Culpepper, 64 Va. (23 Gratt.) 352 (1873).

Plaintiff's failure to pay required rent to State no bar to recovery. - In unlawful entry and detainer to recover oyster beds assigned to plaintiff by the county oyster inspector, his failure to pay rent to the State does not affect his right to recover from defendants, unlawfully in possession. Mears v. Dexter, 86 Va. 828 , 11 S.E. 538 (1890).

F. PLEADING AND PRACTICE.

A wife is not a necessary party to an action of unlawful entry and detainer against her husband, trustee for her, in possession of land, which he contracted to purchase for her. Williamson v. Paxton, 59 Va. (18 Gratt.) 475 (1868).

Statement may supplement warrant. - To entitle the plaintiff to recover upon a warrant of unlawful detainer, he must prove that the defendant withheld the possession at the date of the warrant. But if the warrant does not state the withholding of the possession by the defendant, that may be aided by the complaint which states the fact. Kincheloe v. Tracewells, 52 Va. (11 Gratt.) 587 (1854).

Description of premises. - In a writ of unlawful detainer, under the statute, the omission to state in the complaint the estimated quantity of the land in dispute, is not fatal, if the complaint contains a reasonably certain description. Allen v. Gibson, 25 Va. (4 Rand.) 468 (1826).

Evidence of title inadmissible. - Title is not involved in an action of forcible entry and detainer, and therefore, as a general rule, evidence of title is inadmissible. Emerick v. Tavener, 50 Va. (9 Gratt.) 220 (1852).

But deed may be offered to show extent of possession. - A deed, though it may be invalid to pass the title it purports to convey, may be admissible evidence as a link in plaintiff's chain of title to show the bounds of the land claimed by him, and the extent of his possession. Harrison v. Middleton, 52 Va. (11 Gratt.) 527 (1854); Olinger v. Shepherd, 53 Va. (12 Gratt.) 462 (1855).

Records are admissible to show right of possession. - In unlawful detainer by a corporation against its ex-treasurer for possession of a house and lot allowed him as a residence while in office as part of his emoluments, the records of the corporation are admissible as evidence to show the arrangements made between the parties. Frazier v. VMI, 81 Va. 59 (1885).

And oral lease for more than year is admissible to show how defendant obtained possession. - Upon the trial of a writ of unlawful detainer, defendant sets up title in himself. Plaintiff may prove that the defendant entered on the premises under a parol lease from himself, though the lease proved was to continue more than one year. Adams v. Martin, 49 Va. (8 Gratt.) 107 (1851).

Recordation of power of attorney not necessary for admission in evidence. - It is unnecessary to record a power of attorney under seal appointing an agent to take charge of real estate and to bring suit for its protection in order for it to be admitted in evidence in an action of unlawful detainer to recover possession of the land. Hobday v. Kane, 114 Va. 398 , 76 S.E. 902 (1913).

Burden on plaintiff to show that possession not withheld for three years. - An action of unlawful detainer is purely a statutory action. The burden of proof is upon the plaintiff to show by a preponderance of the evidence that possession has not been withheld over three years, but there is no requirement in the statute that the summons should allege that possession has not been withheld over three years, and the practice in Virginia uniformly pursued for a great length of time has been to the contrary and ought to be regarded as showing what the law is on the subject. Allen v. Paul, 65 Va. (24 Gratt.) 332 (1874); Fore v. Campbell, 82 Va. 808 , 1 S.E. 180 (1887); Pettit v. Cowherd, 83 Va. 20 , 1 S.E. 392 (1887); Daily v. Rucker, 151 Va. 72 , 144 S.E. 466 (1928), decided before 1978 amendment to § 8.01-236 , which now provides period of limitations for this action.

CIRCUIT COURT OPINIONS

Foreclosure buyer awarded possession. - Buyer was awarded possession of property in an unlawful detainer action because, inter alia, the deed of foreclosure was prima facie evidence that the buyer was entitled to possession and the occupant admitted that she maintained possession over the property; the buyer was not required to give any notice to vacate. Fannie Mae v. Harbin, 85 Va. Cir. 69, 2012 Va. Cir. LEXIS 99 (Virginia Beach Mar. 20, 2012).

Purchaser of a property at a foreclosure sale was entitled to possession of the property in an unlawful detainer action because the deed of trust signed by the occupants late parent was a valid recorded deed, the purchaser bought the property at a foreclosure sale and became the deed holder, the occupants timely received notices to vacate the property, at least one of the occupants had occupied the property from the date of the foreclosure sale, and the occupants' right of occupancy was adverse to the purchaser's interest in the property. Cit Bank, N.A. v. Lucion, 98 Va. Cir. 334, 2018 Va. Cir. LEXIS 55 (Roanoke Apr. 17, 2018).

Virginia Housing Development Authority entitled to possession. - Virginia Housing Development Authority (VHDA) successfully demonstrated that it was entitled to prevail on its unlawful detainer claim because it owned the property as a result of the foreclosure sale and the substitute trustee's execution of the substitute trustee deed, and the mortgagor did not present credible evidence to challenge VHDA's title; VHDA subsequently provided the mortgagor with appropriate notice to vacate the premises and was entitled to possession of the property. Ononuju v. Va. Hous. Dev. Auth.,, 2021 Va. Cir. LEXIS 48 (Norfolk Mar. 23, 2021).

Virginia Housing Development Authority (VHDA) was entitled to prevail on its unlawful detainer claim because VHDA owned the subject property as a result of a foreclosure sale and the substitute trustee's execution of the substitute trustee deed, VHDA subsequently provided the mortgagor with appropriate notice to vacate the premises, and VHDA was entitled to possession of the property. The mortgagor owed VHDA the fair rental value of the property from the date of the foreclosure sale until the date of the circuit court's judgment. Ononuju v. Va. Hous. Dev. Auth.,, 2020 Va. Cir. LEXIS 665 (Norfolk Oct. 19, 2020).

§ 8.01-125. When summons returnable to circuit court; jury.

When the action is commenced in the circuit court, the summons is returnable thereto and, upon application of either party trial by jury shall be had.

(Code 1950, § 8-792; 1954, c. 333; 1970, c. 272; 1977, c. 617.)

REVISERS' NOTE.

Former § 8-792 has been altered so that it applies only to actions commenced in a circuit court. Also, actions of unlawful entry and detainer no longer will have precedence on the civil docket. See also Revisers' note to § 8.01-331 .

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Michie's Jurisprudence. - For related discussion, see 8B M.J. Forcible Entry and Detainer, §§ 15, 16, 19, 26.

§ 8.01-126. Summons for unlawful detainer issued by magistrate or clerk or judge of a general district court.

For the purposes of this section, "termination notice" means a notice given under § 55.1-1245 or other notice of termination of tenancy given by the landlord to the tenant of a dwelling unit, or any notice of termination given by a landlord to a tenant of a nonresidential premises.
In any case when possession of any house, land or tenement is unlawfully detained by the person in possession thereof, the landlord, his agent, attorney, or other person, entitled to the possession may present to a magistrate or a clerk or judge of a general district court a statement under oath of the facts which authorize the removal of the tenant or other person in possession, describing such premises; and thereupon such magistrate, clerk or judge shall issue his summons against the person or persons named in such affidavit. The process issued upon any such summons issued by a magistrate, clerk or judge may be served as provided in § 8.01-293 , 8.01-296 , or 8.01-299 . When issued by a magistrate it may be returned to and the case heard and determined by the judge of a general district court. If the summons for unlawful detainer is filed to terminate a tenancy pursuant to the Virginia Residential Landlord and Tenant Act (§ 55.1-1200 et seq.), the initial hearing on such summons shall occur as soon as practicable, but not more than 21 days from the date of filing. If the case cannot be heard within 21 days from the date of filing, the initial hearing shall be held as soon as practicable, but in no event later than 30 days after the date of the filing. If the plaintiff requests that the initial hearing be set on a date later than 21 days from the date of filing, the initial hearing shall be set on a date the plaintiff is available that is also available for the court. Such summons shall be served at least 10 days before the return day thereof.
Notwithstanding any other rule of court or provision of law to the contrary, the plaintiff in an unlawful detainer case may submit into evidence a photocopy of a properly executed paper document or paper printout of an electronically stored document including a copy of the original lease or other documents, provided that the plaintiff provides an affidavit or sworn testimony that the copy of such document is a true and accurate copy of the original lease. An attorney or agent of the landlord or managing agent may present such affidavit into evidence.
1. Notwithstanding any other rule of court or provision of law to the contrary, when the defendant does not make an appearance in court, the plaintiff or the plaintiff's attorney or agent may submit into evidence by an affidavit or sworn testimony a statement of the amount of outstanding rent, late charges, attorney fees, and any other charges or damages due as of the date of the hearing. The plaintiff or the plaintiff's attorney or agent shall advise the court of any payments by the defendant that result in a variance reducing the amount due the plaintiff as of the day of the hearing. D. 1. Notwithstanding any other rule of court or provision of law to the contrary, when the defendant does not make an appearance in court, the plaintiff or the plaintiff's attorney or agent may submit into evidence by an affidavit or sworn testimony a statement of the amount of outstanding rent, late charges, attorney fees, and any other charges or damages due as of the date of the hearing. The plaintiff or the plaintiff's attorney or agent shall advise the court of any payments by the defendant that result in a variance reducing the amount due the plaintiff as of the day of the hearing.
2. 1. If the unlawful detainer summons served upon the defendant requests judgment for all amounts due as of the date of the hearing, the court shall permit amendment of the amount requested on the summons for unlawful detainer filed in court in accordance with the evidence and in accordance with the amounts contracted for in the rental agreement and shall enter a judgment for such amount due as of the date of the hearing in addition to entering an order of possession for the premises. Notwithstanding any rule of court or provision of law to the contrary, no order of possession shall be entered unless the plaintiff or plaintiff's attorney or agent has presented a copy of a proper termination notice that the court admits into evidence.
  2. Notwithstanding any rule of court or provision of law to the contrary, a plaintiff may amend the amount alleged to be due and owing in an unlawful detainer to request all amounts due and owing as of the date of the hearing. If additional amounts become due and owing prior to the final disposition of a pending unlawful detainer, the plaintiff may also amend the amount alleged to be due and owing to include such additional amounts. If the plaintiff requests to amend the amount alleged to be due and owing in an unlawful detainer, the judge shall grant such amendment. Upon amendment of the unlawful detainer, such plaintiff shall not subsequently file an additional summons for unlawful detainer against the defendant for such additional amounts if such additional amounts could have been included in such amendment. If another unlawful detainer is filed, the court shall dismiss the subsequent unlawful detainer. Nothing herein shall be construed to preclude a plaintiff from filing an unlawful detainer for a non-rent violation during the pendency of an unlawful detainer for nonpayment of rent.
3. In determining the amount due the plaintiff as of the date of the hearing, if the rental agreement or lease provides that rent is due and payable on the first of the month in advance for the entire month, at the request of the plaintiff or the plaintiff's attorney or agent, the amount due as of the date of the hearing shall include the rent due for the entire month in which the hearing is held, and rent shall not be prorated as of the actual court date. Otherwise, the rent shall be prorated as of the date of the hearing. However, nothing herein shall be construed to permit a landlord to collect rent in excess of the amount stated in such rental agreement or lease. If a money judgment has been granted for the amount due for the month of the hearing pursuant to this section and the landlord re-rents such dwelling unit and receives rent from a new tenant prior to the end of such month, the landlord is required to reflect the applicable portion of the judgment as satisfied pursuant to § 16.1-94.01.
4. If, on the date of a foreclosure sale of a single-family residential dwelling unit, the former owner remains in possession of such dwelling unit, such former owner becomes a tenant at sufferance. Such tenancy may be terminated by a written termination notice from the successor owner given to such tenant at least three days prior to the effective date of termination. Upon the expiration of the three-day period, the successor owner may file an unlawful detainer under this section. Such tenant shall be responsible for payment of fair market rental from the date of such foreclosure until the date the tenant vacates the dwelling unit, as well as damages, and for payment of reasonable attorney fees and court costs.
  (Code 1950, § 8-791; 1954, c. 333; 1966, c. 436; 1968, c. 639; 1972, c. 397; 1975, c. 235; 1977, c. 617; 1978, c. 344; 1980, c. 502; 2000, c. 1055; 2008, cc. 551, 691; 2012, c. 788; 2013, c. 63; 2014, c. 168; 2015, c. 547; 2017, c. 481; 2018, c. 255; 2019, cc. 130, 132.)

The 2000 amendments. - The 2000 amendment by c. 1055 added the fourth, fifth and sixth sentences and substituted "ten" for "five" in the last sentence.

The 2008 amendments. - The 2008 amendments by cc. 551 and 691 are identical, and substituted "magistrate or a clerk or judge" for "magistrate, clerk or judge," deleted "of a general district court" preceding "shall issue his summons" in the first sentence; and made minor stylistic changes.

The 2012 amendments. - The 2012 amendment by c. 788 designated the existing provisions of the section as subsection A and therein made stylistic changes; and added subsection B.

The 2013 amendments. - The 2013 amendment by c. 63 added the second sentence in subsection B, and added subsection C.

The 2014 amendments. - The 2014 amendment by c. 168 in subsection C inserted "(i)" and "and (ii) the unlawful detainer summons served upon the defendant requests judgment for all amounts due as of the date of the hearing," and substituted "shall permit amendment of the amount requested on the summons for unlawful detainer filed in court in accordance with the affidavit and shall enter a judgment for such amount due as of the date of the hearing" for "shall enter a judgment for such amount."

The 2015 amendments. - The 2015 amendment by c. 547 rewrote subsection C, which read "Notwithstanding any other rule of court or provision of law to the contrary, when the defendant does not make an appearance in court, the plaintiff or the plaintiff's attorney or agent may include in the affidavit entered into evidence pursuant to subsection B a statement of the amount of outstanding rent, late charges, attorney fees, and any other charges or damages due as of the date of the hearing. Upon request of the plaintiff or the plaintiff's attorney or agent, if the court determines that (i) the affidavit accurately sets forth the amount due the plaintiff and (ii) the unlawful detainer summons served upon the defendant requests judgment for all amounts due as of the date of the hearing, the court shall permit amendment of the amount requested on the summons for unlawful detainer filed in court in accordance with the affidavit and shall enter a judgment for such amount due as of the date of the hearing in addition to entering an order of possession for the premises."

The 2017 amendments. - The 2017 amendment by c. 481 inserted "and in accordance with the amounts contracted for in the rental agreement" in subdivision C 2.

The 2018 amendments. - The 2018 amendment by c. 255 added subdivision C 4.

The 2019 amendments. - The 2019 amendments by cc. 130 and 132 are identical, and added subsection A and redesignated the remaining subsections accordingly; in subsection B, inserted "but in no event later than 30 days after the date of the filing"; in subdivision D 2, inserted the "a." designation and added subdivision D 2 b.; added the last sentence in subdivision D 2 a.

Law review. - For survey of Virginia law on property for the year 1974-1975, see 61 Va. L. Rev. 1834 (1975).

For annual survey article, "Real Estate Law," see 41 U. Rich. L. Rev. 257 (2006).

For annual survey of Virginia law article, "Civil Practice and Procedure," see 47 U. Rich. L. Rev. 113 (2012).

Michie's Jurisprudence. - For related discussion, see 8B M.J. Forcible Entry and Detainer, §§ 3, 15, 16, 18, 19, 20, 26.

CASE NOTES

Where federal housing laws and regulations established a reviewing process outside the courts and the tenant did not receive a hearing meeting the standards of that process, an unlawful detainer action was not an adequate remedy at law to protect the statutory and regulatory procedures afforded the tenant. Cooper v. Tazewell Square Apts., Ltd., 577 F. Supp. 1483 (W.D. Va. 1984).

Where writ of possession unnecessary. - Defendant had no right to be at the property he had leased, and his act of entering the property supported his burglary conviction, where the landlord had been granted an unlawful detainer judgment against defendant, and, pursuant to that judgment, the landlord had entered the house, taken possession of the house, and changed its locks before defendant re-entered the property; issuance of a writ for possession was unnecessary to terminate defendant's right to be at the property. Lassiter v. Commonwealth, 46 Va. App. 604, 620 S.E.2d 563, 2005 Va. App. LEXIS 409 (2005).

Protection for tenants in federally assisted housing. - The substantive right not to be arbitrarily evicted from federally assisted housing on the mere expiration of a lease in turn requires that a tenant be afforded the following protections: (1) timely notice specifying the reasons for the eviction; (2) an opportunity to confront and cross-examine adverse witnesses and present his own evidence; (3) the right to retain an attorney; and (4) the right to an impartial decision based solely on the evidence adduced at the hearing. Anderson v. Denny, 365 F. Supp. 1254 (W.D. Va. 1973) (decided under prior law).

Tenants residing in federally assisted housing are entitled to a declaratory judgment that they cannot be evicted from their tenancies until they receive notice alleging good cause, and such allegations are to be proved in a hearing in the state courts, under the procedural and substantive law of Virginia. Anderson v. Denny, 365 F. Supp. 1254 (W.D. Va. 1973) (decided under prior law).

Subject matter jurisdiction. - Circuit court erred in granting a foreclosure purchaser's motion for summary judgment and awarding it possession of the borrowers' property in the purchaser's unlawful detainer action because the circuit court had no more subject matter jurisdiction than the general district court and the general district court lacked subject matter jurisdiction over the case where the borrowers' allegations raised a bona fide question of title that, if proved, could set aside the foreclosure. Parrish v. Fannie Mae, 292 Va. 44 , 787 S.E.2d 116 (2016).

Applied in Kennedy v. Block, 784 F.2d 1220 (4th Cir. 1986).

CIRCUIT COURT OPINIONS

Will did not require that decedent's brother and son jointly occupy a home. - Brother of a decedent was granted sole possession of a house pursuant to an action for unlawful detainer under § 8.01-126 ; a will granted the brother a life estate, and there was no language in the will indicating an intention for the brother and the decedent's son to jointly occupy the house. Jenkins v. Bynum, 61 Va. Cir. 314, 2003 Va. Cir. LEXIS 144 (Norfolk 2003).

No oral contract for occupancy found. - Trial court granted a trust the possession of a residence because the court found that there was not an oral contract between the trust and the occupant of the residence that permitted the occupant to reside therein absent a written lease. The court accepted the testimony of the attorney who drafted the trust that the grantor made no mention of an oral agreement that would have allowed the occupier to remain in the property, and the trust document did not mention allowing the occupier to remain in the property during the occupier's lifetime. Stanley v. Stanley, 102 Va. Cir. 366, 2019 Va. Cir. LEXIS 353 (Orange County Aug. 16, 2019).

Right to terminate lease agreement. - Portsmouth Redevelopment and Housing Authority had the authority to terminate a lease agreement with a commercial tenant and the right to cancel the collateral orally amended development agreement; therefore, it was entitled to possession of the property unless it decided to continue its development and/or lease arrangement with the tenant. Judgment for possession was granted to the authority. Portsmouth Redevelopment & Hous. Auth. v. Ison, 66 Va. Cir. 336, 2005 Va. Cir. LEXIS 39 (Portsmouth Jan. 18, 2005).

§§ 8.01-127, 8.01-127.1.

Repealed by Acts 2007, c. 869, cl. 2.

§ 8.01-128. Verdict and judgment; damages.

If it appears that the plaintiff was forcibly or unlawfully turned out of possession, or that it was unlawfully detained from him, the verdict or judgment shall be for the plaintiff for the premises, or such part thereof as may be found to have been so held or detained. The verdict or judgment shall also be for such damages as the plaintiff may prove to have been sustained by him by reason of such forcible or unlawful entry, or unlawful detention, of such premises, and such rent as he may prove to have been owing to him.
The plaintiff may, alternatively, receive a final, appealable judgment for possession of the property unlawfully entered or unlawfully detained and be issued an order of possession at the initial hearing on a summons for unlawful detainer, upon evidence presented by the plaintiff to the court. At the initial hearing, upon request of the plaintiff, the court shall bifurcate the unlawful detainer case and set a continuance date no later than 120 days from the date of the initial hearing to determine final rent and damages. On such continuance date, the court shall permit amendment of the amount requested on the summons for unlawful detainer filed in court in accordance with the (i) notice of hearing to establish final rent and damages mailed to the last known address of the defendant and filed with the court at least 15 days prior to the continuance date as provided herein, (ii) evidence presented to the court, and (iii) amounts contracted for in the rental agreement. Nothing in this subsection shall preclude a defendant who appears in court at the initial court date from contesting an unlawful detainer action as otherwise provided by law.
If under this section an appeal is taken as to possession, the entire case shall be considered appealed. The plaintiff shall, in the instance of a continuance taken under this section, mail to the defendant at the defendant's last known address at least 15 days prior to the continuance date a notice advising (a) of the continuance date, (b) of the amounts of final rent and damages, and (c) that the plaintiff is seeking judgment for additional sums. A copy of such notice shall be filed with the court.
No verdict or judgment rendered under this section shall bar any separate concurrent or future action for any such damages or rent as may not be so claimed.
(Code 1950, § 8-793; 1954, c. 609; 1977, c. 617; 2005, c. 779; 2010, c. 550; 2011, c. 76; 2016, c. 281; 2017, c. 481; 2019, cc. 180, 700.)

REVISERS' NOTE.

The restriction in former § 8-793 as to rent being claimed only up to the time of the institution of the action has been removed. Other unnecessary language has been deleted; but no change in substance is intended.

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Cross references. - As to court-ordered payment plan under the Eviction Diversion Pilot Program, see § 55.1-1262 .

The 2005 amendments. - The 2005 amendment by c. 779 redesignated the former section as subsections A and C; substituted "appears" for "appear" in subsection A; inserted subsection B; and in subsection C, deleted "such" preceding "verdict or judgment" and inserted "rendered under this section."

The 2010 amendments. - The 2010 amendment by c. 550 inserted the last two sentences in the first paragraph of subsection B.

The 2011 amendments. - The 2011 amendment by c. 76 deleted "provided such damages and rent claimed shall not exceed the jurisdictional amount of the court in which the action is tried" from the end of the first paragraph.

The 2016 amendments. - The 2016 amendment by c. 281 substituted "120 days" for "90 days" in subsection B.

The 2017 amendments. - The 2017 amendment by c. 481, in subsection B, rewrote the first paragraph, which formerly read: "The plaintiff may, alternatively, receive a final, appealable judgment for possession of the property unlawfully entered or unlawfully detained and be issued a writ of possession, and continue the case for up to 120 days to establish final rent and damages. If the plaintiff elects to proceed under this section, the judge shall hear evidence as to the issue of possession on the initial court date and shall hear evidence on the final rent and damages at the hearing set on the continuance date, unless the plaintiff requests otherwise or the judge rules otherwise. Nothing in this section shall preclude a defendant who appears in court at the initial court date from contesting an unlawful detainer action as otherwise provided by law" and redesignated clauses (i) through (iii) as clauses (a) through (c) in the second paragraph.

The 2019 amendments. - The 2019 amendments by cc. 180 and 700 are identical, and substituted "an order of possession" for "a writ of possession" in subsection B.

Michie's Jurisprudence. - For related discussion, see 8B M.J. Forcible Entry and Detainer, §§ 2, 3, 16, 26, 27.

CASE NOTES

Lessor may evict lessee without losing right to recover deficiency later. - In creating an exemption to the rules of claim-splitting, this section provides the lessor with an opportunity to evict the lessee without losing its right to recover any later deficiency in rent after making an effort to minimize the lessee's damages by renting to another tenant. Virginia Dynamics Co. v. Payne, 244 Va. 314 , 421 S.E.2d 421 (1992).

Right to file subsequent action after eviction must be expressly waived. - The lessor's statutorily created right to file a subsequent action for rent would have to be expressly waived in order for such a right to be considered contracted away. Virginia Dynamics Co. v. Payne, 244 Va. 314 , 421 S.E.2d 421 (1992).

The judgment restores only the status quo and settles nothing as to the title or right of possession. Davis v. Mayo, 82 Va. 97 (1886) (decided under prior law).

No independent action for damages for forcible dispossession. - This article does not undertake to give a party forcibly dispossessed any right to institute a separate and independent action for damages therefor. Shorter v. Shelton, 183 Va. 819 , 33 S.E.2d 643 (1945) (decided under prior law).

Removal of encroachment. - Where the evidence showed that removal of an encroachment was essential to appellants' full enjoyment of their land, the trial court erred in refusing to issue the injunction sought. Appellants had no adequate remedy at law by way of ejectment or unlawful detainer, for by neither action could they accomplish their object to obtain quiet possession of their land. Benoit v. Baxter, 196 Va. 360 , 83 S.E.2d 442 (1954) (decided under prior law).

Applied in Seoane v. Drug Emporium, Inc., 249 Va. 469 , 457 S.E.2d 93 (1995).

CIRCUIT COURT OPINIONS

Virginia Housing Development Authority entitled to possession. - Virginia Housing Development Authority (VHDA) successfully demonstrated that it was entitled to prevail on its unlawful detainer claim because it owned the property as a result of the foreclosure sale and the substitute trustee's execution of the substitute trustee deed; VHDA subsequently provided the mortgagor with appropriate notice to vacate the premises and was entitled to possession of the property, and as the prevailing party, it was entitled to damages for the unlawful detention. Ononuju v. Va. Hous. Dev. Auth.,, 2021 Va. Cir. LEXIS 48 (Norfolk Mar. 23, 2021).

§ 8.01-129. Appeal from judgment of general district court.

An appeal shall lie from the judgment of a general district court, in any proceeding under this article, to the circuit court in the same manner and with like effect and upon like security as appeals taken under the provisions of § 16.1-106 et seq. except as specifically provided in this section. The appeal shall be taken within 10 days and the security approved by the court from which the appeal is taken. Notwithstanding the provisions of § 16.1-106 et seq., the bond shall be posted and the writ tax paid within 10 days of the date of the judgment.
In any unlawful detainer case filed under § 8.01-126 , if a judge grants the plaintiff a judgment for possession of the premises, upon request of the plaintiff, the judge shall further order that the writ of eviction issue immediately upon entry of judgment for possession. In such case, the clerk shall deliver the writ of eviction to the sheriff, who shall then, at least 72 hours prior to execution of such writ, serve notice of intent to execute the writ, including the date and time of eviction, as provided in § 8.01-470 . In no case, however, shall the sheriff evict the defendant from the dwelling unit prior to the expiration of the defendant's 10-day appeal period. If the defendant perfects an appeal, the sheriff shall return the writ to the clerk who issued it. When the appeal is taken by the defendant, he shall be required to give security also for all rent which has accrued and may accrue upon the premises, but for not more than one year's rent, and also for all damages that have accrued or may accrue from the unlawful use and occupation of the premises for a period not exceeding three months. Trial by jury shall be had upon application of any party. (Code 1950, § 8-794; 1950, p. 68; 1977, c. 617; 1984, c. 565; 1998, c. 750; 2004, c. 343; 2008, c. 489; 2017, c. 481; 2018, c. 145; 2019, cc. 180, 700.)

REVISERS' NOTE.

The sentence in former § 8-794 stating what type of security may be taken has been deleted. The type and adequacy of the security is left up to the court.

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Cross references. - As to appeals generally, see § 8.01-669 et seq.

The 2004 amendments. - The 2004 amendment by c. 343 throughout the section, substituted "10" for "ten," and in the fourth sentence, inserted clause (i) and the clause (ii) designation.

The 2008 amendments. - The 2008 amendment by c. 489, in the fourth sentence, deleted "or" from the end of clause (i), inserted "or" at the end of clause (ii), and inserted clause (iii).

The 2017 amendments. - The 2017 amendment by c. 481 added the subsection designations; in subsection B, in the first sentence, inserted the clause (i) designation, redesignated former clauses (i) through (iii) as clauses (ii) through (iv), inserted the second sentence; and made minor stylistic changes.

The 2018 amendments. - The 2018 amendment by c. 145 rewrote the first paragraph of subsection B, which formerly read "Unless otherwise specifically provided in the court's order, no writ of execution shall issue on a judgment for possession until the expiration of this 10-day period, except in cases of judgment (i) of default; (ii) wherein the case arises out of a trustee's deed following foreclosure; (iii) for the nonpayment of rent where the writ of execution shall issue immediately upon entry of judgment for possession, if requested by the plaintiff; or (iv) for immediate nonremediable terminations where the writ of execution shall issue immediately upon entry of judgment for possession, if requested by the plaintiff. In cases where the court's order permits immediate processing of a writ of execution in order to schedule an eviction date, in no case shall such eviction be executed (a) until expiration of the tenant's 10-day appeal period or (b) if the tenant perfects an appeal pursuant to this section."

The 2019 amendments. - The 2019 amendments by cc. 180 and 700 are identical, and inserted "of eviction" following "writ" twice in subsection B.

Michie's Jurisprudence. - For related discussion, see 1B M.J. Appeal and Error, § 357; 8B M.J. Forcible Entry and Detainer, § 28.

CASE NOTES

This section did not permit an appeal from denial of motion for new trial. - This section was inapplicable where tenant in unlawful detainer action did not appeal district court's judgment awarding possession to landlord but appealed only from the court's denial of motion for a new trial. Ragan v. Woodcroft Village Apts., 255 Va. 322 , 497 S.E.2d 740 (1998).

Relationship to pre-appeal bankruptcy filing. - Bankruptcy court properly found that an escrowed fund awarded to an attorney lien creditor by a state court was property of debtors' bankruptcy estate under 11 U.S.C.S. § 541(a)(1) because: (1) the debtors had an equitable or legal interest in the fund on the date they commenced their bankruptcy case as the debtors filed their bankruptcy petition four days before their time to appeal the state court judgment would have expired; and (2) the creditor's statutory attorney's fee lien on the fund, pursuant to § 54.1-3932 , was not self-executing and did not automatically extinguish the debtors' legal or equitable interest in the fund as of the date they filed their bankruptcy petition. Todd v. Hart,, 2006 U.S. Dist. LEXIS 43340 (W.D. Va. June 27, 2006).

Applied in Letendre v. Fugate, 701 F.2d 1093 (4th Cir. 1983); Kennedy v. Block, 606 F. Supp. 1397 (W.D. Va. 1985).

CIRCUIT COURT OPINIONS

No jurisdiction for appeal. - Because the tenant's retaliation claim against the landlord under Virginia's Manufactured Home Lot Rental Act, § 55.1-1300 , was part of the landlord's underlying unlawful detainer action and that action was not appealed, that claim was not properly before the circuit court. Even if the tenant had noted an appeal of the tenant's retaliation claim, the decision on that claim was not a final order or judgment that was appealable as the tenant only appealed the tenant's negligence, negligence per se, and breach of contract claims. Cadd v. Bowman Assocs., LLC, 105 Va. Cir. 144, 2020 Va. Cir. LEXIS 55 (Roanoke County Apr. 20, 2020).

§ 8.01-130. Judgment not to bar action of trespass, ejectment, or unlawful detainer.

No judgment in an action brought under the provisions of this article shall bar any action of trespass, ejectment, or unlawful detainer between the same parties, nor shall any such judgment or verdict be conclusive, in any such future action, of the facts therein found.

(Code 1950, § 8-795; 1977, c. 617; 2018, c. 255.)

The 2018 amendments. - The 2018 amendment by c. 255 inserted "or unlawful detainer" and made a related change.

Michie's Jurisprudence. - For related discussion, see 1A M.J. Adverse Possession, § 55; 8B M.J. Forcible Entry and Detainer, §§ 3, 27; 18 M.J. Trespass, § 1.

CASE NOTES

Judgment settles nothing as to title or right of possession. - In an action of forcible entry and detainer the judgment has only the effect of placing the parties in status quo. It settles nothing even between them in regard to the title or right of possession. It is no bar to an action of trespass or ejectment between the same parties. Olinger v. Shepherd, 53 Va. (12 Gratt.) 462 (1855); Davis v. Mayo, 82 Va. 97 (1886) (decided under prior law).

CIRCUIT COURT OPINIONS

Failure to follow court rules. - Challenge to court's interpretation of Parrish v. Fannie Mae , 292 Va. 44 , 787 S.E.2d 116 (2016) and § 8.01-130 fail because of lack of argument and evidence. Ononuju v. Va. Hous. Dev. Auth., 103 Va. Cir. 57, 2019 Va. Cir. LEXIS 622 (Norfolk Oct. 30, 2019).

§ 8.01-130.01. (Effective January 1, 2022) Unlawful detainer; expungement.

If an action for unlawful detainer filed in general district court is dismissed or a nonsuit is taken and the time in which the action may be recommenced pursuant to § 8.01-229 has expired, provided that no order of possession has been entered in the case, the defendant may file a petition on a form created by the Supreme Court in the general district court in which the underlying unlawful detainer action was filed requesting expungement of the court records relating to the unlawful detainer. The petition shall provide the date that the order of dismissal or nonsuit was entered, the address of the property that was the subject of the unlawful detainer action, and the name of the plaintiff in the unlawful detainer action.
Upon finding that the unlawful detainer action was dismissed or a nonsuit was taken and the time for recommencement of the action has expired and no order of possession was entered, the court shall, without a hearing, enter an order requiring the expungement of the court records.
(2020, c. 1013.)

Editor's note. - Acts 2020, c. 1013, cl. 2 provides: "That the provisions of this act shall become effective on January 1, 2022."

Article 13.1. Warrants in Distress.

§ 8.01-130.1. Remedy for rent and for use and occupation.

Rent of every kind may be recovered by distress or action. A landlord may also, by action, recover, when the agreement is not by deed, a reasonable satisfaction for the use and occupation of lands. On the trial of such action, if any parol demise or any agreement not by deed whereon a certain rent was reserved appears in evidence, the plaintiff shall not therefor be nonsuited, but may use the same as evidence of the amount of his debt or damages. In any action for rent, or for such use and occupation, interest shall be allowed as on other contracts.

(Code 1919, § 5519; Code 1950, § 55-227; 2019, c. 712.)

Editor's note. - Acts 2019, c. 712, recodified Title 55 as Title 55.1, effective October 1, 2019. As part of the recodification, former Chapter 13 ( § 55-227 et seq.) of Title 55 was recodified as Article 13.1 ( § 8.01-130.1 et seq.) of Chapter 3 of this title. Where appropriate, the historical citations to former sections have been added to corresponding new sections. For transition provisions, see § 55.1-100 . For tables of corresponding former and new sections, see the tables in Volume 10.

Acts 2019, c. 712, cl. 13 provides: "That the provisions of this act shall become effective on October 1, 2019."

Michie's Jurisprudence. - For related discussion, see 5C M.J. Debt, Action of, § 6; 11B M.J. Landlord and Tenant, §§ 14, 19, 21.

CASE NOTES

I. Decided Under Prior Law.

I. DECIDED UNDER PRIOR LAW.

This section reaffirms the common law in providing that rent of every kind may be recovered by distress or action. Bird v. City of Richmond, 240 F. 545 (4th Cir. 1917), aff'd, 249 U.S. 174, 39 S. Ct. 186, 63 L. Ed. 543 (1919).

It presupposes the relation of landlord and tenant. Raven Red Ash Coal Co. v. Ball, 185 Va. 534 , 39 S.E.2d 231 (1946).

And distress for rent will not lie unless the relation exists between the parties. The right is not only incident to that relation, but is dependent upon it. Church v. Goshen Iron Co., 112 Va. 694 , 72 S.E. 685 (1911).

A landlord's lien is given by this section and §§ 55-231 and 55-233. United States v. Waddill, Holland & Flinn, Inc., 182 Va. 351 , 28 S.E.2d 741 (1944), rev'd as to priority of federal claim in, 323 U.S. 353, 65 S. Ct. 304, 89 L. Ed. 294 (1945).

This section and §§ 55-231 and 55-233 give the landlord a lien which is fixed and specific, and not one which is merely inchoate, and such a lien exists independently of the right of distress or attachment, which are merely remedies for enforcing it. Such a lien relates back to the beginning of the tenancy, thus giving it force and effect on date of the voluntary assignment. United States v. Melchiorre, 292 F. Supp. 305 (E.D. Va. 1968).

The case law indicates that § 55-231, this section and § 55-233 give a landlord a lien which is fixed and specific and not one which is merely inchoate. Such lien exists independent of the right of distress or attachment, which are merely remedies for enforcing it. When the landlord's lien for rent is obtained, it relates back to the beginning of the tenancy and takes precedence over any lien of any other person obtained or created upon goods or chattels on the leased premises after the commencement of the tenancy. John Deskins Pic Pac, Inc. v. Flat Top Nat'l Bank, 59 Bankr. 809 (Bankr. W.D. Va. 1986).

Extent to which landlord may distrain goods. - 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).

Priority of federal tax lien. - Where landlords obtained a distress warrant before the tenant made an assignment for the benefit of creditors, but did not levy thereunder, their lien was neither specific nor perfected under Virginia law and could not have priority over a federal tax lien with respect to the proceeds of a sale under the assignment. United States v. Melchiorre, 292 F. Supp. 305 (E.D. Va. 1968).

§ 8.01-130.2. Who may recover rent or compensation.

If a person is entitled to rent or compensation, whether such person has the reversion or not, then his personal representative or assignee may recover it as provided in § 8.01-130.1 , whatever the estate of the person owning it, or though his estate or interest in the land has ended. When the owner of real estate in fee, or holder of a term, yielding him rent dies, the rent due after such owner's or termholder's death shall be recoverable by such owner's heir or devisee or such termholder's personal representative. If the owner or holder alienates or assigns his estate or term, or the rent falls due after such alienation or assignment, the alienee or assignee may recover such rent.

(Code 1919, § 5520; Code 1950, § 55-228; 2019, c. 712.)

Editor's note. - Acts 2019, c. 712, cl. 13 provides: "That the provisions of this act shall become effective on October 1, 2019."

CASE NOTES

Ground rents, though not common in this State, are recognized as valid. Willis's Ex'r v. Commonwealth, 97 Va. 667 , 34 S.E. 460 (1899) (decided under prior law).

§ 8.01-130.3. Who is liable for rent.

Rent may be recovered from the lessee or other person owing it, or his assignee, or the personal representative of either; however, no assignee shall be liable for rent that became due before his interest began. Nothing in this section shall impair or change the liability of heirs or devisees for rent, as for other debts of their ancestor or devisor.

(Code 1919, § 5521; Code 1950, § 55-229; 2019, c. 712.)

Editor's note. - Acts 2019, c. 712, cl. 13 provides: "That the provisions of this act shall become effective on October 1, 2019."

Michie's Jurisprudence. - For related discussion, see 11B M.J. Landlord and Tenant, § 13.

§ 8.01-130.4. When and by whom distress made.

A distress action for rent may be brought no later than five years from the time the rent becomes due, whether the lease is ended or not. The distress shall be made by a sheriff of the county or city where the premises yielding the rent, or some part thereof, is located or the goods liable to distress may be found, under warrant from a judge of, or a magistrate serving, the judicial district. Such warrant shall be founded upon a sworn petition of the person claiming the rent, or his agent, that (i) the petitioner believes the amount of money or other thing by which the rent is measured, to be specified in the petition in accordance with § 8.01-130.6 , is justly due to the claimant for rent reserved upon contract from the person of whom it is claimed, (ii) the petitioner alleges one or more of the grounds mentioned in § 8.01-534 and sets forth in the petition specific facts in support of such allegation, and (iii) the rent claimed is for rent due within five years from the time that it becomes due. The petition shall also specify the amount of the rent claimed and request either levy or seizure of the affected property prior to trial. The plaintiff shall, at the time of suing out a distress, give bond in conformity with the provisions of § 8.01-537.1 . The plaintiff praying for a distress warrant shall, at the time that he files his petition, pay the proper costs, fees, and taxes, and in the event of his failure to do so, the distress warrant shall not be issued.

A judge or magistrate shall make an ex parte review of the petition and may receive evidence only in the form of a sworn petition, which shall be filed in the office of the clerks of court. The warrant may be issued in accordance with the prayer of the petition by a judge or magistrate only upon a determination that there appears from the petition that there is reasonable cause to believe that one of the grounds mentioned in § 8.01-534 exists, the allegations required to be in the petition are true, and bond that complies with § 8.01-537.1 has been posted.

Each copy of the distress warrant shall be issued and served on each defendant together with (a) a form for requesting a hearing of exemption from levy or seizure, as provided in § 8.01-546.1 , and (b) a copy of the bond. The distress warrant may be issued or executed on any day, including a Saturday, Sunday, or other legal holiday. Service shall be made in accordance with the methods described in § 8.01-487.1 . The provisions of § 8.01-546.2 shall govern claims for exemption.

The officer into whose hands the warrant is delivered shall levy or seize as directed in the warrant, except as may be provided by statute, the property found on the premises of the tenant as provided by § 8.01-130.6 . The officer shall return the warrant of distress to the court to which the warrant of distress is returnable by the return date unless otherwise notified by the court to make return by an earlier date.

(Code 1919, § 5522; Code 1950, § 55-230; 1962, c. 10; 1974, c. 458; 1976, c. 177; 1980, c. 555; 1986, c. 341; 1993, c. 841; 2008, cc. 551, 691; 2019, c. 712.)

Cross references. - As to civil jurisdiction of general district courts, see § 16.1-77. As to liens of landlords for advances to tenants, see § 43-29 .

Editor's note. - Acts 2019, c. 712, cl. 13 provides: "That the provisions of this act shall become effective on October 1, 2019."

§ 8.01-130.5. Procedure for trial on warrant in distress.

The distress warrant shall contain a return date and be tried in the same manner as an action on a warrant as prescribed in § 16.1-79, except that the case shall be returnable not more than 30 days from its date of issuance. The trial or hearing of the issues, except as otherwise provided, shall be the same, as near as may be, as in actions in personam.

(1980, c. 555, § 55-230.1; 1993, c. 841; 2019, c. 712.)

Editor's note. - Acts 2019, c. 712, cl. 13 provides: "That the provisions of this act shall become effective on October 1, 2019."

§ 8.01-130.6. On what goods levied; to what extent goods liable; priorities between landlord and other lienors.

The distress may be levied on any goods of the lessee, his assignee, or any sublessee that are found on the premises or that may have been removed from the premises not more than 30 days prior to the levy. A levy within such 30 days shall have like effect as if the goods levied on had not been removed from the leased premises. If the goods of such lessee, assignee, or sublessee, when carried on the premises, are subject to a lien that is valid against his creditors, his interest only in such goods shall be liable to such distress. If any lien is created on such goods while they are upon the leased premises, or within 30 days after such lien is created, they are liable to distress, but for not more than six months' rent if the premises are used for residential purposes, and not for farming or agriculture, and for not more than 12 months' rent if the lands or premises are used for farming or agriculture, whether such rent has accrued before or after the creation of the lien. No other goods shall be liable to distress than such as are declared to be so liable in this section, nor shall the goods of the sublessee be liable to a greater amount than such sublessee owed the tenant at the time the distress was levied.

(Code 1919, § 5523; 1922, p. 863; 1932, p. 696; Code 1950, § 55-231; 2019, c. 712.)

Editor's note. - Acts 2019, c. 712, cl. 13 provides: "That the provisions of this act shall become effective on October 1, 2019."

CASE NOTES

I. Decided Under Prior Law.

I. DECIDED UNDER PRIOR LAW.

A. GENERAL CONSIDERATION.

The object of this section is to protect the landlord against liens created upon property upon the leased premises and subject to distress, after the tenancy begins, by providing that liens so created shall be ineffectual to defeat the landlord's right to recover for rent for the periods specified therein, whether such rent accrues before or after the creation of the liens. It is not intended to affect the right of the landlord to distrain for rent within five years from the time it becomes due, where no other lien has been created upon the property liable for rent at the time the distress warrant is issued and levied. Sprinkel v. Rosenheim & Son, 103 Va. 185 , 48 S.E. 883 (1904).

For history of section, see Bradford v. Graham, 287 F. 686 (4th Cir. 1923).

Where property has been removed from the leased premises more than 30 days, neither a distress warrant nor an attachment for rent can be levied thereon. Dime Deposit & Disct. Bank v. Wescott, 113 Va. 567 , 75 S.E. 179 (1912).

The property of a third person never was liable to distress, unless found upon the premises; and even where it is found there, the distress is taken away by the statute. Davis v. Payne's Adm'r, 25 Va. (4 Rand.) 332 (1826).

As to goods carried on premises and encumbered after commencement of tenancy, see Wades v. Figgatt, 75 Va. 575 (1881).

As to liability of all encumbered personal property on premises where landlord distrained upon part, see Jones v. Phelan & Collander, 61 Va. (20 Gratt.) 229 (1871).

As to goods of undertenant under former wording of statute, see Bernard v. McClanahan, 115 Va. 453 , 79 S.E. 1059 (1913).

B. LANDLORD'S LIEN GENERALLY.

This section and §§ 55-227 and 55-233 give the landlord a lien which is fixed and specific, and not one which is merely inchoate, and such a lien exists independent of the right of distress or attachment, which are merely remedies for enforcing it. United States v. Waddill, Holland & Flinn, Inc., 182 Va. 351 , 28 S.E.2d 741 (1944), rev'd as to priority of federal claim in, 323 U.S. 353, 65 S. Ct. 304, 89 L. Ed. 294 (1945). See City of Richmond v. Duesberry, 68 Va. (27 Gratt.) 210 (1876); Lott v. Salsbury, 237 F. 191 (4th Cir. 1916); Bradford v. Graham, 287 F. 686 (4th Cir. 1923); United States v. Melchiorre, 292 F. Supp. 305 (E.D. Va. 1968).

But it has been said that, accurately speaking, neither this section nor § 55-233 gives the landlord a lien for rent, and that until his right has been perfected by the levy of a distress warrant his lien is merely inchoate. American Exch. Bank v. Goodlee Realty Corp., 135 Va. 204 , 116 S.E. 505 (1923). However, this statement was repudiated in United States v. Waddill, Holland & Flinn, Inc., 182 Va. 351 , 28 S.E.2d 741 (1944), rev'd as to priority of federal claim in, 323 U.S. 353, 65 S. Ct. 304, 89 L. Ed. 294 (1945).

In a bankruptcy proceeding the fact that the landlord did not attempt to enforce his lien against the debtor tenant by instituting a distress action was of no moment since it is abundantly clear that the statutory lien is not an inchoate lien; it exists from the creation of the tenancy and is legally enforceable in the courts. Virginia Nat'l Bank v. Balistreri, 8 Bankr. 703 (Bankr. E.D. Va. 1981).

The case law indicates that this section and §§ 55-227 and 55-233 give a landlord a lien which is fixed and specific and not one which is merely inchoate. Such lien exists independent of the right of distress or attachment, which are merely remedies for enforcing it. When the landlord's lien for rent is obtained, it relates back to the beginning of the tenancy and takes precedence over any lien of any other person obtained or created upon goods or chattels on the leased premises after the commencement of the tenancy. John Deskins Pic Pac, Inc. v. Flat Top Nat'l Bank, 59 Bankr. 809 (Bankr. W.D. Va. 1986).

A landlord becomes a creditor of his tenant by virtue of his contract of rent and, further, this contract gives rise to a statutory lien on the personal property placed upon the demised premises. Virginia Nat'l Bank v. Balistreri, 8 Bankr. 703 (Bankr. E.D. Va. 1981).

The landlord's lien is for rent in arrears and to become due, for not exceeding the periods specified in this section and § 55-233, on the property of the tenant on the leased premises, or that which has been removed therefrom within 30 days, without distraint or attachment being made therefor. United States v. Waddill, Holland & Flinn, Inc., 182 Va. 351 , 28 S.E.2d 741 (1944), rev'd as to priority of federal claim in, 323 U.S. 353, 65 S. Ct. 304, 89 L. Ed. 294 (1945).

Establishing amount of lien. - The amount of the lien is not established until the date of the sale under an uncontested distress levy or the date of the judgment if the levy is contested; the judgment determines the amount of the tenant's debt. United States v. Melchiorre, 292 F. Supp. 305 (E.D. Va. 1968).

Lien waived by lease to merchant. - A landlord by leasing premises to a retail merchant with knowledge that he is going to conduct such a business thereon, or by thereafter knowingly assenting to the conduct of a retail business by his tenant, will be held to have waived his statutory lien upon a shifting stock of goods. American Exch. Bank v. Goodlee Realty Corp., 135 Va. 204 , 116 S.E. 505 (1923).

Agricultural lien. - Since the landlord had a valid agricultural lien as defined by subdivision a 5 of § 8.9A-102 that was created by § 55-231 in favor of the landlord, and its effectiveness was not dependent on the landlord's possession of the real property in question, the landlord's lien was governed by Virginia's Revised Article 9 of the Uniform Commercial Code, § 8.9A-101 et seq. Dean v. Hall,, 2003 U.S. Dist. LEXIS 12720 (E.D. Va. Feb. 25, 2003).

C. PRIORITIES.

In bankruptcy proceedings. - This section and § 55-233 give the landlord a lien for rent upon the goods of the lessee on the leased premises, which will take precedence in bankruptcy proceedings. Lott v. Salsbury, 237 F. 191 (4th Cir. 1916); Bradford v. Graham, 287 F. 686 (4th Cir. 1923).

In a bankruptcy proceeding where debtor-tenants had agreed to the recovery of premises by creditor-landlord shortly after the landlord had locked out the tenant for failure to pay rent, and where the debtors had abandoned the lease and the landlord had recovered his property, the lease at that point was terminated and all right to collect rent ended; but the landlord was entitled to recover, pursuant to a lien superior to that of another secured creditor, unpaid rent for days prior to the termination of the lease. Virginia Nat'l Bank v. Balistreri, 8 Bankr. 703 (Bankr. E.D. Va. 1981).

Liens created after commencement of tenancy. - When a landlord's lien for rent is obtained, it relates back to the beginning of the tenancy, and takes precedence over any lien of any other person obtained or created upon goods or chattels on the leased premises after the commencement of the tenancy. American Exch. Bank v. Goodlee Realty Corp., 135 Va. 204 , 116 S.E. 505 (1923).

A landlord's lien relates back to the beginning of the tenancy, thus giving it force and effect on date of the voluntary assignment. United States v. Melchiorre, 292 F. Supp. 305 (E.D. Va. 1968).

Liens created before commencement of new tenancy. - Where a stranger took an assignment of a lease without the consent of the landlord, bought the lessee's furniture and gave a deed of trust thereon, and then at the end of the term held over, it was held that this was a new term and that the rent for the former term being paid and the deed of trust given before the new term the lien of the deed of trust was prior to that of the landlord. City of Richmond v. Duesberry, 68 Va. (27 Gratt.) 210 (1876).

Tenant under lease containing no agreement for renewal, executed deed of trust on personalty on premises. Afterwards there was an agreement for renewal different in terms from the original lease. It was held that a new tenancy was created after the execution of the deed of trust, which was therefore prior to the lien for rent. Upper Appomattox Co. v. Hamilton, 83 Va. 319 , 2 S.E. 195 (1887).

A tenancy from month to month, created by holding over after expiration of original term, is a new term for each month of such holding over. Accordingly liens of execution creditors not created until after the commencement of the lease nevertheless take priority over distress liens of the landlord, when at the time of their creation no default had been made in the payment of rent, and there was no default until several months thereafter. Leonard v. Standard Distilling Co., 16 Va. L. Reg. 491 (1910). But see last paragraph of § 55-233, added by the General Assembly in 1932, concerning monthly and weekly tenancies.

A statutory lien protects the landlord from most other liens created after the commencement of the tenancy upon goods on the leased premises which belong to a person liable for rent; thus, the landlord is protected against all deeds of trust, mortgages, and other liens, where the lien has been created after the commencement of the tenancy, upon goods on the leased premises which belong to a person liable for rent. Virginia Nat'l Bank v. Balistreri, 8 Bankr. 703 (Bankr. E.D. Va. 1981).

Lien for payroll taxes. - In a suit by a trustee in a deed of assignment for the benefit of creditors to determine the priority of payment of claims, the Unemployment Compensation Commission (now Virginia Employment Commission) contended that it was entitled to priority of payment over the claim of the landlord by virtue of § 60.2-523 , which makes payroll taxes a lien against an employer's assets but preserves the priority of "any mortgage, deed of trust or other lien duly perfected prior to the date the contributions" accrued. It was held that the lien of the landlord was a "lien duly perfected" within the meaning of the statute, since the landlord's lien related back to the beginning of the tenancy and therefore was perfected prior to the accrual of the Commission's claim for contributions. United States v. Waddill, Holland & Flinn, Inc., 182 Va. 351 , 28 S.E.2d 741 (1944), rev'd as to priority of federal claim in, 323 U.S. 353, 65 S. Ct. 304, 89 L. Ed. 294 (1945).

Claims of the United States against an insolvent debtor who has made an assignment for the benefit of creditors were held entitled to priority over a lien asserted under this section and §§ 55-227 and 55-233 by a landlord for rent. United States v. Waddill, Holland & Flinn, Inc., 323 U.S. 353, 65 S. Ct. 304, 89 L. Ed. 294 (1945).

Tax liens of the United States, under applicable provisions of the Internal Revenue Code, take priority over unperfected or inchoate liens created by State law. United States v. Lawler, 201 Va. 686 , 112 S.E.2d 921 (1960).

Where landlords obtained a distress warrant before the tenant made an assignment for the benefit of creditors, but did not levy thereunder, their lien was neither specific nor perfected under Virginia law and could not have priority over a federal tax lien with respect to the proceeds of a sale under the assignment. United States v. Melchiorre, 292 F. Supp. 305 (E.D. Va. 1968).

§ 8.01-130.7. Procedure when distress levied and tenant unable to give forthcoming bond; what defense may be made.

On affidavit by a tenant, whose property has been levied on under a warrant of distress, that (i) he is unable to give the bond required in § 8.01-526 and (ii) he has a valid defense under subsection B, the officer levying the warrant shall permit the property to remain in the possession and at the risk of the tenant, and shall return the warrant forthwith, together with the affidavit, to the court to which such warrant is returnable. Thereupon the landlord, after 10 days' notice in writing to the tenant, may make a motion for a judgment for the amount of the rent and for a sale of the property levied on. The tenant may make such defense as he is authorized to make, including defenses permitted under subsection B to an action or motion on the bond when one is given. Upon making such defense, the officer shall permit the property to remain in the possession of and at the risk of the tenant. If the property is perishable, or expensive to keep, the court may order it to be sold, and on the final trial of the cause, the court shall dispose of the property, or proceeds of sale, according to the rights of the parties.
In an action or motion on a forthcoming bond, when it is taken under a distress warrant, the defendants may make defense on the ground that the distress was for rent not due in whole or in part or was otherwise illegal.
(Code 1919, § 6519; Code 1950, § 8-453; Code 1950, § 55-232; 1970, c. 43; 1975, c. 235; 1977, c. 624; 1980, c. 555; 1986, c. 341; 2007, c. 869; 2019, c. 712.)

Editor's note. - Acts 2019, c. 712, cl. 13 provides: "That the provisions of this act shall become effective on October 1, 2019."

CASE NOTES

§ 8.01-130.8. Review of decision to issue ex parte order or process; claim of exemption.

Promptly after levy on the property or promptly after possession of the property is taken by the officer pursuant to an ex parte order, or after denial of an application to issue such order by a magistrate, upon application of either party, and after reasonable notice, a judge of the general district court having jurisdiction shall conduct a hearing to review the decision to issue the ex parte order or process. In the event that the judge finds that the order or process should not have been issued, the court may dismiss the distraint or award actual damages and reasonable attorney fees to the person whose property was taken, or both. The provisions of § 8.01-546.2 shall govern claims for exemption.

(1974, c. 458, § 55-232.2; 1980, c. 555; 1986, c. 341; 2019, c. 712.)

Editor's note. - Acts 2019, c. 712, cl. 13 provides: "That the provisions of this act shall become effective on October 1, 2019."

§ 8.01-130.9. On what terms purchasers and lienors inferior to landlord may remove goods; certain liens not affected.

If, after the commencement of any tenancy, a lien is obtained or created by deed of trust, mortgage, or otherwise upon the interest or property in goods on premises leased or rented of any person liable for the rent, or such goods are sold, the party having such lien, or the purchaser of such goods, may remove them from the premises only on the following terms: On paying to the person entitled to the rent so much as is in arrear, and securing to him so much as to become due, what is so paid or secured not being more altogether than six months' rent if the premises are in a city or town, or in any subdivision of suburban and other lands divided into building lots for residential purposes, or of premises anywhere used for residential purposes, and not for farming or agriculture, and not being more altogether than 12 months' rent, if the lands or premises are used for farming or agriculture. If the goods are taken under legal process, the officer executing it shall, out of the proceeds of the goods, make such payment of what is in arrear, and as to what is to become due he shall sell a sufficient portion of the goods on a credit until then, taking from the purchasers bonds, with good security, payable to the person so entitled, and delivering such bonds to him. If the goods are not taken under legal process, such payment and security shall be made and given before their removal. Neither this section nor § 8.01-130.6 shall affect any lien for taxes, levies, or militia fines.

For the purpose of this section and § 8.01-130.6 , a monthly or weekly tenancy shall not be construed as a new lease for every month or week of occupation of the premises by the tenant, but his tenancy shall be considered as a continuance of his original lease so long as he continues to occupy the property without making any new written lease.

(Code 1919, § 5524; 1922, p. 863; 1932, p. 696; Code 1950, § 55-233; 2019, c. 712.)

Editor's note. - Acts 2019, c. 712, cl. 13 provides: "That the provisions of this act shall become effective on October 1, 2019."

Michie's Jurisprudence. - For related discussion, see 2A M.J. Assignments for the Benefit of Creditors, § 53; 11B M.J. Landlord and Tenant, §§ 26, 27.

CASE NOTES

I. Decided Under Prior Law.

I. DECIDED UNDER PRIOR LAW.

History of section. - See Bradford v. Graham, 287 F. 686 (4th Cir. 1923).

This section is perfectly plain and definite in its terms. It is unambiguous and hardly to be misunderstood. Kelly v. Worsham, 160 Va. 275 , 168 S.E. 338 (1933).

Should its enforcement work hardships the remedy is with the legislature. The court has no other alternative than to give effect to its manifest meaning. Kelly v. Worsham, 160 Va. 275 , 168 S.E. 338 (1933).

This section and §§ 55-227 and 55-231 give the landlord a lien which is fixed and specific, and not one which is merely inchoate, and such a lien exists independently of the right of distress or attachment, which are merely remedies for enforcing it. Such a lien relates back to the beginning of the tenancy, thus giving it force and effect on date of the voluntary assignment. United States v. Melchiorre, 292 F. Supp. 305 (E.D. Va. 1968).

The case law indicates that §§ 55-227, 55-231 and this section give a landlord a lien which is fixed and specific and not one which is merely inchoate. Such lien exists independent of the right of distress or attachment, which are merely remedies for enforcing it. When the landlord's lien for rent is obtained, it relates back to the beginning of the tenancy and takes precedence over any lien of any other person obtained or created upon goods or chattels on the leased premises after the commencement of the tenancy. John Deskins Pic Pac, Inc. v. Flat Top Nat'l Bank, 59 Bankr. 809 (Bankr. W.D. Va. 1986).

The landlord is protected by the statute against liens created after the commencement of the tenancy, upon goods on the leased premises which belong to a person liable for rent, and where there is an existing liability for rent in arrear, or to become due, at the time the lien is created. City of Richmond v. Duesberry, 68 Va. (27 Gratt.) 210 (1876), quoted in United States v. Waddill, Holland & Flinn, Inc., 182 Va. 351 , 28 S.E.2d 741 (1944), rev'd as to priority of federal claim in, 323 U.S. 353, 65 S. Ct. 304, 89 L. Ed. 294 (1945).

And trustee in assignment for benefit of creditors takes subject to section. - The trustee in a tenant's deed of assignment for the benefit of creditors took subject to the provisions of this section, and was liable, as such trustee, to pay rent as a preferred charge on the trust estate. Allen v. Parkey, 154 Va. 739 , 149 S.E. 615 (1929).

But lien for taxes has priority. - This section subordinates a landlord's lien to a city's lien for personal property taxes assessed against specific chattels on the leased premises. United States v. Waddill, Holland & Flinn, Inc., 182 Va. 351 , 28 S.E.2d 741 (1944), rev'd as to priority of federal claim in, 323 U.S. 353, 65 S. Ct. 304, 89 L. Ed. 294 (1945).

Tax liens of the United States, under applicable provisions of the Internal Revenue Code, take priority over unperfected or inchoate liens created by state law. United States v. Lawler, 201 Va. 686 , 112 S.E.2d 921 (1960).

When noncompliance with statutes gives landlord right of personal action. - The removal of the goods mentioned in the statute, after notice that the rent is in arrear, without first complying with the terms thereof upon which the permission to remove the goods is given, is a wrong to the estate of the landlord, for which he may maintain an action against the person removing the goods and recover a personal judgment. American Exch. Bank v. Goodlee Realty Corp., 135 Va. 204 , 116 S.E. 505 (1923), in which English precedents were followed.

The purchaser of a battery charger from a tenant paid the purchase price and removed it from the leased premises several months before the expiration of the lease. At the time of removal the tenant was in arrears for rent in a sum greater than the purchase price of the machine. The landlord was held entitled to recover the amount of the purchase price from the purchaser. Kelly v. Worsham, 160 Va. 275 , 168 S.E. 338 (1933).

The personal liability of the person removing the property is not dependent upon notice of the exact amount of unpaid rent mentioned in the statute. Notice of any rent so mentioned being in arrear, or to become due, puts the person removing property upon inquiry, and is equivalent to notice of the exact amount of such rent, if by inquiry of the landlord he would have ascertained the amount. American Exch. Bank v. Goodlee Realty Corp., 135 Va. 204 , 116 S.E. 505 (1923).

And certain other matters are immaterial to right of recovery. - In an action by a landlord under this section against a lienholder or purchaser removing goods of the tenant from the premises, whether or not other goods liable for rent sufficient to satisfy the rent in arrear were left on the premises, or whether the landlord could have levied a distress warrant on the goods before they were removed, or whether there was a conversion of the goods which prevented such levy, or fraud or other conduct whatsoever on the part of the person removing the goods, which was the proximate cause of the loss or damage to the landlord sought to be recovered in the action, are immaterial as bearing on the right of recovery by the landlord. American Exch. Bank v. Goodlee Realty Corp., 135 Va. 204 , 116 S.E. 505 (1923).

A landlord leasing premises to a retail merchant with knowledge that he is going to conduct such a business thereon, or thereafter knowingly assenting to the conduct of a retail business by his tenant, will be held to have waived all right to assert a personal liability for rent against purchasers of articles of merchandise from the tenant in the regular course of retail trade. American Exch. Bank v. Goodlee Realty Corp., 135 Va. 204 , 116 S.E. 505 (1923).

As to goods placed on premises and encumbered after commencement of tenancy, see Wades v. Figgatt, 75 Va. 575 (1881).

§ 8.01-130.10. When goods of a sublessee may be removed from leased premises.

The following limitations shall apply to § 8.01-130.9 : a sublessee, or a purchaser from him, or a creditor holding a deed of trust, mortgage, or other encumbrance created on his goods after they were carried on the leased premises, may remove the same upon payment of so much of the rent contracted to be paid by him as is in arrear, and securing the residue, not exceeding six months' rent, if the premises are in a city or town, or in any subdivision of suburban and other lands divided into building lots for residential purposes, or of premises anywhere used for residential purposes, and not for farming or agriculture, and for not more than 12 months' rent if the lands or premises are used for farming or agriculture. If the goods are taken under legal process against him, the officer executing the same shall, out of the proceeds of his goods, make payment of so much of the rent as to which he is in arrear, and as to what is to become due from him shall sell sufficient of the goods upon credit until then, taking from the purchaser bonds with good security, payable to the party entitled to receive the same, and deliver them to him.

(Code 1919, § 5525; 1922, p. 863; 1932, p. 697; Code 1950, § 55-234; 2019, c. 712.)

Editor's note. - Acts 2019, c. 712, cl. 13 provides: "That the provisions of this act shall become effective on October 1, 2019."

§ 8.01-130.11. When officer may enter by force to levy distress or attachment.

The officer having such distress warrant, or an attachment for rent, if there be need for it, may, in the daytime, break open and enter into any house or close in which there may be goods liable to the distress or attachment and may, either in the day or night, break open and enter any house or close wherein there may be any goods so liable that have been fraudulently or clandestinely removed from the demised premises. He may also levy such distress warrant or attachment on property liable for the rent found in the personal possession of the party liable therefor.

(Code 1919, § 5526; Code 1950, § 55-235; 2019, c. 712.)

Editor's note. - Acts 2019, c. 712, cl. 13 provides: "That the provisions of this act shall become effective on October 1, 2019."

§ 8.01-130.12. When distress not unlawful because of irregularity, etc.

When distress is made for rent justly due and any irregularity or unlawful act is afterwards done by the party distraining, or his agent, the distress itself shall not be deemed to be unlawful, nor is the party making it therefore deemed a trespasser ab initio. The party aggrieved by such irregularity or unlawful act may, by action, recover full satisfaction for the special damage he has sustained thereby.

(Code 1919, § 5527; Code 1950, § 55-236; 2019, c. 712.)

Editor's note. - Acts 2019, c. 712, cl. 13 provides: "That the provisions of this act shall become effective on October 1, 2019."

§ 8.01-130.13. Return of execution; process of sale thereunder.

The sheriff under writ of execution from the court after hearing and judgment for the landlord, except as otherwise provided by law, shall make return on his execution as may be placed in his hands for collection and file the same, within 90 days after the same may have come to his hands, with the clerk of the court in which the case was heard. Upon the return of such execution such clerk shall preserve such execution in his office as is now provided as to other executions. If such return shows that a levy has been made and that property levied on remains unsold, it shall be lawful for the clerk of the court in whose office such return is filed to issue a writ of venditioni exponas thereon just as if the return were upon writ of fieri facias.

(Code 1919, § 5528; 1930, p. 456; Code 1950, § 55-237; 1962, c. 10; 1975, c. 235; 1980, c. 555; 2019, c. 712.)

Editor's note. - Acts 2019, c. 712, cl. 13 provides: "That the provisions of this act shall become effective on October 1, 2019."

Article 14. Ejectment.

§ 8.01-131. Action of ejectment retained; when and by whom brought.

The action of ejectment is retained, subject to the provisions hereinafter contained, and to the applicable Rules of Court.
Such action may be brought in the same cases in which a writ of right might have been brought prior to the first day of July, 1850, and by any person claiming real estate in fee or for life or for years, either as heir, devisee or purchaser, or otherwise.
(Code 1950, §§ 8-796, 8-797; 1954, c. 333; 1977, c. 617.)

Cross references. - For section abolishing writ of right, see § 8.01-165 .

For rules of court governing practice and procedure in civil actions, see Rules 3:1 through 3:25.

Law review. - For article on the abolition of the forms of action in Virginia, see 17 U. Rich. L. Rev. 273 (1983).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Adverse Possession, § 55; 6B M.J. Ejectment, §§ 2, 10.

CASE NOTES

I. Decisions Under Current Law.
II. Decisions Under Prior Law.

I. DECISIONS UNDER CURRENT LAW.

Ejectment is an action to determine the title and right of possession to real property. Sheffield v. Department of Hwys. & Transp., 240 Va. 332 , 397 S.E.2d 802 (1990).

The landowner's constitutional right is a right to just compensation, not a right to recover possession of the property. Sheffield v. Department of Hwys. & Transp., 240 Va. 332 , 397 S.E.2d 802 (1990).

Form of action. - Ejectment was a common law action designed to try title to land and by statute it continues to be a law action. Seoane v. Drug Emporium, Inc., 249 Va. 469 , 457 S.E.2d 93 (1995).

Ejectment remedy inappropriate to prosecute inverse condemnation claim against Commonwealth. - Given the nature of the action of ejectment, and the entitlement of the successful claimant to be put into possession of the disputed land, the remedy is inappropriate and unsuitable as a vehicle to prosecute an inverse condemnation claim against the Commonwealth. Sheffield v. Department of Hwys. & Transp., 240 Va. 332 , 397 S.E.2d 802 (1990).

II. DECISIONS UNDER PRIOR LAW.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The terms "this article," and "this section," as used below, refer to former provisions.

English law compared. - An action of ejectment brought under this article affects the title to land more than the action of ejectment in England. United States v. Lee, 106 U.S. 196, 1 S. Ct. 240, 27 L. Ed. 171 (1882).

Ejectment does not lie where entry cannot be made. - Ejectment lies for the recovery of corporeal hereditaments. It does not lie for anything where an entry cannot be made, as for example, easements, licenses, rights of user. Steinman v. Vicars, 99 Va. 595 , 39 S.E. 227 (1901); King v. Norfolk & W. Ry., 99 Va. 625 , 39 S.E. 701 (1901). But see, Reynolds v. Cook, 83 Va. 817 , 3 S.E. 710 (1887).

Ejectment is the proper action for one having legal title, who is not in possession, in order to recover possession and establish his title. Jennings v. Gravely, 92 Va. 377 , 23 S.E. 763 (1895).

Distinguished from forcible or unlawful entry. - The action of forcible or unlawful entry is materially different from the action of ejectment. In the latter action, title is involved, while in the former only the right to possession is tried. In the action of forcible entry the plaintiff need only show the right of immediate possession, while in ejectment the plaintiff must always recover on the strength of his title. Power v. Tazewells, 66 Va. (25 Gratt.) 786 (1875); Davis v. Mayo, 82 Va. 97 (1886).

Trustee as plaintiff. - A trustee, holding the legal title, may maintain ejectment, even after the trust is satisfied. Although a cestui que trust, after the trust is satisfied, may maintain ejectment, that does not deprive the trustee, holding the legal title, of his right to maintain such an action. Hopkins v. Stephens, 23 Va. (2 Rand.) 422 (1824).

Effect of statute on existing rights. - If the plaintiff in ejectment would have been entitled at the time the Code of 1849 went into effect and at the time of the institution of his suit, to recover in a writ of right, he is entitled to recover in the present action of ejectment, under the provisions of this section. Mitchell v. Baratta, 58 Va. (17 Gratt.) 445 (1867).

CIRCUIT COURT OPINIONS

Timeliness. - Ten-year statute of limitations set forth in § 8.01-255.1 did not apply, and the diocese's lawsuit was timely filed prior to the expiration of the 15-year statute of limitations for ejectment actions, where the diocese alleged that the parish retained church property after it ceased to be used for Episcopal purposes and refused to convey the property to the diocese upon the declaration of abandonment, and as a result, the diocese had pled a breach of the terms of the fiduciary relationship between the parties rather than a reversionary interest in land. Protestant Episcopal Church in the Diocese of S. Va. v. Church of the Messiah, 103 Va. Cir. 49, 2019 Va. Cir. LEXIS 446 (Chesapeake Aug. 30, 2019).

§ 8.01-132. What interest and right plaintiff must have.

No person shall bring such ejectment action unless he has, at the time of commencing it, a subsisting interest in the premises claimed and a right to recover the same, or to recover the possession thereof, or some share, interest or portion thereof.

(Code 1950, § 8-799; 1977, c. 617.)

Cross references. - As to proceedings to establish right of reentry, see § 55.1-1419 .

Michie's Jurisprudence. - For related discussion, see 5A M.J. Cotenancy, § 43; 6B M.J. Ejectment, §§ 2, 5, 10.

CASE NOTES

I. Decisions Under Current Law.
- A. General Consideration.
- B. Requirement of Recovery on Strength of Own Title.
II. Decisions Under Prior Law.

I. DECISIONS UNDER CURRENT LAW.

A. GENERAL CONSIDERATION.

Grantor of deed of trust may maintain action in own name. - In an action of ejectment a deed of trust should be construed as a mere lien on the property, and the grantor may maintain an action in ejectment in his own name. Providence Properties, Inc. v. United Va. Bank/Seaboard Nat'l, 219 Va. 735 , 251 S.E.2d 474 (1979).

Grantee of property that has a public easement was not entitled to maintain an action in ejectment, since in Virginia, no person shall bring such ejectment action unless he has, at the time of commencing it, a subsisting interest in the premises claimed and a right to recover the same, or to recover the possession thereof. Laughlin v. Morauer, 849 F.2d 122 (4th Cir. 1988).

Contingent or expectant interest. - Under this section even if grantee was conveyed some kind of contingent or expectant interest by the deed, he had no right to recover the same because the record does not indicate any kind of abandonment of the park or vacation of the plat, or cessation of use, or the like, to give him any right to assert any future interest he may have in the property. Laughlin v. Morauer, 849 F.2d 122 (4th Cir. 1988).

B. REQUIREMENT OF RECOVERY ON STRENGTH OF OWN TITLE.

Plaintiff must recover on strength of own title. - In actions for ejectment, the plaintiff has the burden of proving that he has good title and the right to possession, and he must recover upon the strength of his own title rather than upon the weakness of the defendant's title. Providence Properties, Inc. v. United Va. Bank/Seaboard Nat'l, 219 Va. 735 , 251 S.E.2d 474 (1979).

II. DECISIONS UNDER PRIOR LAW.

A. GENERAL CONSIDERATION.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The terms "this article," and "this section," as used below, refer to former provisions.

The plaintiff in an action of ejectment must have legal title and a present right of possession under it at the time of the commencement of the action. Nelson v. Triplett, 81 Va. 236 (1885); Jennings v. Gravely, 92 Va. 377 , 23 S.E. 763 (1895).

Presumed where title clear. - As a general rule, a plaintiff in ejectment must show a legal title in himself, and a present right to possession under such title. In the absence, however, of evidence to the contrary, the law presumes that the right of possession is incident to and follows the legal title. Casselman v. Bialas, 112 Va. 57 , 70 S.E. 479 (1911).

Plaintiff must trace title from Commonwealth. - As a general rule a plaintiff to recover in an action of ejectment must trace unbroken chain of title to the Commonwealth or established title by adverse possession. Bugg v. Leay, 107 Va. 648 , 60 S.E. 89 (1908); Spriggs v. Jamerson, 115 Va. 250 , 78 S.E. 571 (1913). See also Sulphur Mines Co. v. Thompson, 93 Va. 293 , 25 S.E. 232 (1896).

But this is not necessary when title of parties is from a common source. - It is not necessary for plaintiff to trace title to the Commonwealth where both he and the defendant claim title from a common source. In such a case the defendant is estopped to go back of the common source in order to question the plaintiff's title and it is sufficient for the plaintiff to show that he has better title from that source. Hurley v. Charles, 110 Va. 27 , 65 S.E. 468 (1909); Jennings v. Marston, 121 Va. 79 , 92 S.E. 821 (1917).

However, the plaintiff cannot connect the defendant with the common source of title by proof of a parol purchase of the land. Hurley v. Charles, 110 Va. 27 , 65 S.E. 468 (1909).

Present, operative, outstanding legal title in another will defeat a recovery by the plaintiff although the defendant does not connect himself therewith. Holladay v. Moore, 115 Va. 66 , 78 S.E. 551 (1913).

Effect of prior possession. - Prior peaceful possession by the plaintiff is prima facie evidence of ownership and seisin, and is sufficient to authorize recovery unless the defendant shows a better title in himself or another. McMurray v. Dixon, 105 Va. 605 , 54 S.E. 481 (1906); Holladay v. Moore, 115 Va. 66 , 78 S.E. 551 (1913).

The principle that possession under color of title constitutes a prima facie title is under the great weight of authority restricted to those factual situations where the defendant is a mere intruder or trespasser without color of title. Bull Run Dev. Corp. v. Jackson, 201 Va. 95 , 109 S.E.2d 400 (1959).

Demand and notice necessary before action against tenant at will. - Before bringing an action of ejectment against a tenant at will, demand and notice to quit are necessary, and a vendee, who is put in possession without conveyance being made, is a tenant at will and entitled to notice. Pettit v. Cowherd, 83 Va. 20 , 1 S.E. 392 (1887); Jones v. Temple, 87 Va. 210 , 12 S.E. 404 (1890).

B. REQUIREMENT OF RECOVERY ON STRENGTH OF OWN TITLE.

The plaintiff in ejectment must recover on the strength of his own title and cannot rely on the weakness of the defendant's claim. McKinney v. Daniel, 90 Va. 702 , 19 S.E. 880 (1894); Merryman v. Hoover, 107 Va. 485 , 59 S.E. 483 (1907); Davis v. Bostic, 125 Va. 698 , 100 S.E. 463 (1919).

Exceptions. - To the general rule that a plaintiff in ejectment must recover on the strength of his own title there are several well defined exceptions resting for the most part on the principle of estoppel. Tapscott v. Cobbs, 52 Va. (11 Gratt.) 172 (1854); Rhule v. Seaboard Air Line Ry., 102 Va. 343 , 46 S.E. 331 (1904).

As when landlord sues tenant. - A tenant is estopped to deny his landlord's title, and, hence, in an action of ejectment by a landlord he is not required to establish title as against the tenant. Miller v. Williams, 56 Va. (15 Gratt.) 213 (1858); Suttle v. Richmond, F. & P.R.R., 76 Va. 284 (1882).

Also, when one is in possession against an intruder. - Although, in general, legal title in the plaintiff must be shown in order to sustain a recovery in ejectment, as against mere intruders without semblance of right, prior peaceable possession is sufficient. Rhule v. Seaboard Air Line Ry., 102 Va. 343 , 46 S.E. 331 (1904); McMurray v. Dixon, 105 Va. 605 , 54 S.E. 481 (1906).

And when grantor enforces forfeiture for breach of condition. - Where there is a breach of condition subsequent, the legal title to the land remains in the grantee until the forfeiture is consummated, but the practice in Virginia, under § 55-239, is to bring ejectment in such case although the plaintiff has not the legal title. Pence v. Tidewater Townsite Corp., 127 Va. 447 , 103 S.E. 694 (1905).

C. WHEN TITLE MUST EXIST.

A plaintiff in ejectment must have title at the time of the commencement of his action and cannot acquire it afterwards. Merryman v. Hoover, 107 Va. 485 , 59 S.E. 483 (1907).

But where a plaintiff, after suit brought, aliens the land he may recover for the benefit of the alienee. Right to recover at the commencement of the action is all that is required by the statute. Bolling v. Teel, 76 Va. 487 (1882).

D. EVIDENCE OF TITLE.

The documentary evidence relied on must identify the land in dispute. Blakey v. Morris, 89 Va. 717 , 17 S.E. 126 (1893); Craig-Giles Iron Co. v. Wickline, 126 Va. 223 , 101 S.E. 225 (1919).

A grant from the Commonwealth confers constructive seisin sufficient to support an action of ejectment. Actual seisin is not necessary. Howdashell v. Krenning, 103 Va. 30 , 48 S.E. 491 (1904).

When grant may be presumed. - The plaintiff in an action of ejectment may show title in himself either by showing a grant from the crown or the Commonwealth and connecting himself therewith by a regular chain of title, or by showing such a chain of facts as will warrant the jury in presuming a grant. Sulphur Mines Co. v. Thompson, 93 Va. 293 , 25 S.E. 232 (1896); Spriggs v. Jamerson, 115 Va. 250 , 78 S.E. 571 (1913); Brunswick Land Corp. v. Perkinson, 146 Va. 695 , 132 S.E. 853 (1926); Prettyman v. M.J. Duer & Co., 189 Va. 122 , 52 S.E.2d 156 (1949); Bull Run Dev. Corp. v. Jackson, 201 Va. 95 , 109 S.E.2d 400 (1959).

A plaintiff claiming title under a lost deed must show strong and conclusive evidence of the contents of the deed. Carter v. Wood, 103 Va. 68 , 48 S.E. 553 (1904).

Decree requiring execution of conveyance does not give plaintiff title. - A decree requiring the execution of a conveyance does not of itself vest title in the complainant, and should not be received as evidence of legal title in an action of ejectment. Nelson v. Triplett, 81 Va. 236 (1885).

Title to land may be acquired by adverse possession, and such title is sufficient to support an action of ejectment. Norfolk v. Cooke, 68 Va. (27 Gratt.) 430 (1876); Thomas v. Jones, 69 Va. (28 Gratt.) 383 (1877).

Plaintiff has burden of proving boundaries. - A plaintiff in ejectment claiming under an inclusive grant, embracing excepted lands, has the burden of establishing his boundaries and locating the excepted lands, and of showing that the land claimed by the defendants is within the grant and not in the excepted portions. Reusens v. Lawson, 91 Va. 226 , 21 S.E. 347 (1895); Virginia Coal & Iron Co. v. Keystone Coal & Iron Co., 101 Va. 723 , 45 S.E. 291 (1903); Sutherland v. Gent, 116 Va. 783 , 82 S.E. 713 (1914).

Proper boundary evidence. - Calls and descriptions of a survey made of a coterminous tract, by the same surveyor about the same time, is proper evidence upon question of boundary unless plainly irrelevant, although the grant issued thereon was to a stranger. Reusens v. Lawson, 91 Va. 226 , 21 S.E. 347 (1895). See also Overton v. Davisson, 42 Va. (1 Gratt.) 211 (1844).

The record of a former proceeding may be given in evidence to show the authority of a commissioner to execute a deed. Smith v. Chapman, 51 Va. (10 Gratt.) 445 (1853); Hitchcox v. Rawson, 55 Va. (14 Gratt.) 526 (1858).

Record of another action between different parties is not admissible. - The record of another action of ejectment between other parties not in privity with either party to the present suit, is not admissible as evidence of the boundaries or location of the land in controversy. Stinchcomb v. Marsh, 56 Va. (15 Gratt.) 202 (1858); Reusens v. Lawson, 100 Va. 143 , 40 S.E. 616 (1902).

Equitable title is not sufficient to support an action of ejectment. Dillard v. Jeffries, 118 Va. 81 , 86 S.E. 844 (1915); Davis v. Bostic, 125 Va. 698 , 100 S.E. 463 (1919).

§ 8.01-133. Who shall be defendants; when and how landlord may defend.

The person actually occupying the premises and any person claiming title thereto or claiming any interest therein adversely to the plaintiff may also, at the discretion of the plaintiff, be named defendants in the action. If there be no person actually occupying the premises adversely to the plaintiff, then the action must be against some person exercising ownership thereon or claiming title thereto or some interest therein at the commencement of suit. If a lessee be made defendant at the suit of a party claiming against the title of his landlord such landlord may appear and be made a defendant with or in place of his lessee.

(Code 1950, § 8-800; 1954, c. 333; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 2A M.J. Arbitration and Award, § 11; 6B M.J. Ejectment, §§ 2, 16, 17.

CASE NOTES

I. Decisions Under Current Law.
II. Decisions Under Prior Law.

I. DECISIONS UNDER CURRENT LAW.

Defendants where no person actually occupying premises. - Where there is no person actually occupying the disputed property when an action for ejectment was initiated, the action must be brought against "some person," but not every person, exercising ownership or claiming title to or an interest in the property. Providence Properties, Inc. v. United Va. Bank/Seaboard Nat'l, 219 Va. 735 , 251 S.E.2d 474 (1979).

II. DECISIONS UNDER PRIOR LAW.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

Effect of section. - This section does not alter the rule that ejectment cannot be maintained by a plaintiff in possession of the land. The object of the action is to try the possessory title to corporeal hereditaments, and to recover the possession thereof. The effect of the section is simply to permit a plaintiff in his discretion, to join as defendants with the occupant any person claiming title thereto or an interest therein adversely to the plaintiff. Steinman v. Vicars, 99 Va. 595 , 39 S.E. 227 (1901).

Proper remedy when neither party in possession. - The proper remedy is by an action of ejectment, when the owner holds the legal title, but has not actual possession, and another asserts an adverse claim to the land, but has not actual possession of it. Stearns v. Harman, 80 Va. 48 (1885).

Ejectment may be properly brought against persons who have made entries and surveys of any part of the land in controversy, and are setting up claims to it, though not in occupation of it at the time suit is brought. Harvey v. Tyler, 69 U.S. (2 Wall.) 328, 17 L. Ed. 871 (1864).

One who has had land surveyed and regularly paid taxes on it and claims to own it may be made defendant to an action of ejectment when no one is in actual occupation. Lynchburg Cotton Mill v. Rives, 112 Va. 137 , 70 S.E. 542 (1911).

When occupant is necessary defendant. - This section permits the plaintiff to join with the occupant as defendants any other persons claiming title to the land. It may be conceded that the actual occupant is always a necessary party defendant to an action of ejectment in the sense that another defendant may by timely and proper procedure compel the plaintiff to bring the occupant before the court. The presence of the occupant, however, is not essential to the jurisdiction of the court, and if the claimant of the premises who is sued does not appropriately raise the point, and defends the action upon the merits, he is bound by the judgment. Matoaka Coal Corp. v. Clinch Valley Mining Corp., 121 Va. 522 , 93 S.E. 799 (1917).

Who is an occupant of premises. - One operating mines under a contract with a lessee which gave him exclusive possession thereof for the time being, but whose possession was not exclusive of and was subordinate to the possession of the entire tract by the lessee, is not the party actually occupying the premises, as those terms are used in this section. Matoaka Coal Corp. v. Clinch Valley Mining Corp., 121 Va. 522 , 93 S.E. 799 (1917).

Meaning of "lessee." - The term "lessee," is used, not so much to define an estate as to express the relation existing where one person holds under and in subordination to the title of another. Hanks v. Price, 73 Va. (32 Gratt.) 107 (1879).

Right of landlord to defend. - In an action of ejectment, brought against the person in possession, the landlord of such person may come in and be allowed to defend the action under the statute whether the actual relation of lessor and lessee exists between them or not. This will be permitted even where the plaintiff and the defendant in possession have submitted the matters between them to arbitration, an award made in favor of the plaintiff, and a rule awarded against the defendant in possession to show cause why the award should not be entered as the judgment of the court against him. Hanks v. Price, 73 Va. (32 Gratt.) 107 (1879).

Effect when husband sued and legal title in wife. - Where a husband who was in possession merely by sufferance, his wife holding the legal title, was sued in ejectment, the wife not being a party to the suit, it was held that her rights were not affected and that she could convey them to a purchaser, innocent or otherwise. The husband also could acquire a life estate by her death and would not be estopped and was entitled to have the judgment by default against him opened. But where the wife's deed was not filed for recordation until long after such judgment, she is not entitled to an order restraining execution of the judgment, although she is entitled to have the judgment opened and be allowed to defend. King v. Davis, 137 F. 222 (C.C.W.D. Va. 1905), aff'd sub nom. Blankenship v. King, 157 F. 676 (4th Cir. 1906).

CIRCUIT COURT OPINIONS

Joinder of trustees and deed of trust beneficiary not required. - Landowner was not required to include trustees and the beneficiary of a deed of trust as necessary parties to the landowner's ejectment action against a neighbor because the deed of trust was a mere lien, so the landowner could pursue the suit in the landowner's own name and had discretion to join others claiming adverse interests in the property, and the deed of trust did not defeat the action. Fisher v. Surratt, 92 Va. Cir. 228, 2015 Va. Cir. LEXIS 203 (Augusta County Dec. 8, 2015).

§ 8.01-134. How action commenced and prosecuted.

The action shall be commenced and prosecuted as other actions at law. The name of the real claimant shall be inserted as plaintiff, and all the provisions of law concerning a lessor of a plaintiff shall apply to such plaintiff.

(Code 1950, § 8-801; 1977, c. 617.)

CASE NOTES

Form of action. - Ejectment was a common-law action designed to try title to land and by statute it continues to be a law action. Seoane v. Drug Emporium, Inc., 249 Va. 469 , 457 S.E.2d 93 (1995).

§ 8.01-135. What is to be stated in motion for judgment.

It shall be sufficient for the plaintiff to aver in his motion for judgment that on some day specified therein, which shall be after his title accrued, he was possessed of the premises claimed, and, being so possessed thereof, the defendant afterwards, on some day likewise specified, entered into such premises or exercised acts of ownership thereon or claimed title thereto or some interest therein, to the damage of the plaintiff in such sum as he shall state in his motion for judgment.

(Code 1950, § 8-802; 1954, c. 333; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 6B M.J. Ejectment, § 20.

§ 8.01-136. How premises described.

The premises claimed shall be described in the motion for judgment with convenient certainty, so that, from such description, with the aid of information derived from the plaintiff, possession thereof may be delivered.

(Code 1950, § 8-803; 1954, c. 333; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 6B M.J. Ejectment, § 21.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The terms "this article," and "this section," as used below, refer to former provisions.

CASE NOTES

The object of the description of lands in a motion is to so identify them that the sheriff may give possession. It is not necessary that the sheriff should be able to tell from an inspection of the record of what lands he is to give possession. Howdashell v. Krenning, 103 Va. 30 , 48 S.E. 491 (1904).

Defective description. - A motion in ejectment, which describes the land as a part of a larger tract owned by plaintiff, near certain creeks which have no public notoriety, is defective, and may be demurred to. Hitchcox v. Rawson, 55 Va. (14 Gratt.) 526 (1858).

Effect of verdict for plaintiff for land insufficiently described in motion. - A verdict which finds for the plaintiff the land insufficiently described in the motion is too vague. There is no more certainty and precision in the verdict than there is in the motion, and the defect in the latter is not cured by the former. Hitchcox v. Rawson, 55 Va. (14 Gratt.) 526 (1858).

Where the motion sufficiently describes the premises, a general finding for the plaintiff of the lands described is sufficiently certain. Messick v. Thomas, 84 Va. 891 , 6 S.E. 482 (1887).

Effect of verdict for whole of land when defendant claims only part. - Where the defendant claimed only part of the land, a verdict for the plaintiff for the whole of the land described in the motion is sufficiently certain and does not injure the defendant. Messick v. Thomas, 84 Va. 891 , 6 S.E. 482 (1887).

Verdict held correct when a variance between the verdict and motion. - The quantity and boundaries of the land described in a motion and in the verdict varied from each other. But the verdict found that the land therein described was the tenement mentioned in the declaration. It was to be presumed that the description given in a motion was a mistaken description, and that the land recovered by the verdict was the land demanded. Koiner v. Rankin, 52 Va. (11 Gratt.) 420 (1854).

Where a motion described the land in controversy as lying north of a road, and the verdict as south of that road, the description in other particulars being the same, the variance was held immaterial and the description in the motion must be presumed to be mistaken. Benn v. Hatcher, 81 Va. 25 (1885).

§ 8.01-137. Plaintiff to state how he claims.

The plaintiff shall also state whether he claims in fee or for his life, or the life of another, or for years, specifying such lives or the duration of such term, and when he claims an undivided share or interest he shall state the same.

(Code 1950, § 8-804; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 5A M.J. Cotenancy, § 43; 6B M.J. Ejectment, §§ 3, 22.

CASE NOTES

Standing to maintain action. - The action of ejectment may be maintained by one who has an interest in and a right to recover possession of the premises, or a share, interest, or portion thereof. Brown v. Haley, 233 Va. 210 , 355 S.E.2d 563 (1987).

Proof. - The action of ejectment is concerned only with the ownership rights of the plaintiff, and the proof necessary to support the action consists of the documents which vest title in the owner and any other evidence related to the issue of title. Brown v. Haley, 233 Va. 210 , 355 S.E.2d 563 (1987).

Verdict must specify plaintiff's share or interest. - A verdict for the plaintiff in an action for ejectment must specify the share or interest of the plaintiff, whether in the whole or a part of the premises claimed, and the estate of the plaintiff, whether in fee, for life, or for a term of years. Brown v. Haley, 233 Va. 210 , 355 S.E.2d 563 (1987).

Sufficient allegation of joint tenancy. - Where a motion alleges that, on a day certain before bringing the action, plaintiffs were possessed, "each in fee simple absolute, of an undivided share or interest in" the land, and the action "is for the whole land so claimed, and not for any part or parcel" thereof, the motion is sufficient. Roach v. Blakey, 89 Va. 767 , 17 S.E. 228 (1893) (decided under prior law).

§ 8.01-138. There may be several counts and several plaintiffs.

The motion for judgment may contain several counts, and several parties may be named as plaintiffs jointly in one count and separately in others.

(Code 1950, § 8-805; 1954, c. 333; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 6B M.J. Ejectment, § 15.

CASE NOTES

Amendment in pursuance of this section is not a new action. - When joint plaintiffs amended their motion so that in some counts they were joint and in some counts separate, it was not considered the commencement of a new cause of action. Holmes v. Grabeel, 81 F. 145 (W.D. Va. 1896) (decided under prior law; "this section" refers to former provisions).

§ 8.01-139. What proof by plaintiff is sufficient.

The consent rule, formerly used, remains abolished. The plaintiff need not prove an actual entry on, or possession of, the premises demanded, or receipt of any profits thereof, or any lease, entry, or ouster, except as hereinafter provided. But it shall be sufficient for him to show a right to the possession of the premises at the time of the commencement of the suit.

(Code 1950, § 8-809; 1977, c. 617.)

Cross references. - As to what interest and right plaintiff must have to bring action, see § 8.01-132 .

Michie's Jurisprudence. - For related discussion, see 6B M.J. Ejectment, § 2.

CASE NOTES

Defendant's possession presumed lawful. - Since the plaintiff must recover on the strength of his own title the defendant's possession will be presumed lawful until the contrary is shown. Virginia Coal & Iron Co. v. Keystone Coal & Iron Co., 101 Va. 723 , 45 S.E. 291 (1903) (decided under prior law).

§ 8.01-140. Effect of reservation in deed; burden of proof.

In any action, suit or other judicial proceeding involving the title to land embraced in the exterior boundaries of any patent, deed or other writing, which reserves one or more parcels of land from the operation of such patent, deed or other writing, if there be no claim made by a party to the proceedings that the land in controversy, or any part thereof, lies within such reservation, such patent, deed or other writing shall be construed, and shall have the same effect, as if it contained no such reservation; and if any party to such proceeding claims that the land in controversy, or any part thereof, lies within such reservation, the burden shall be upon him to prove the fact, and all land not shown by a preponderance of the evidence to lie within such reservation shall be deemed to lie without the same.

This section shall apply in cases involving the right to the proceeds of any such land when condemned or sold, as well as in cases where the title to land is directly involved, and shall apply in any case in which the title to any part of the land, or its proceeds, but for this section, would or might be in this Commonwealth.

(Code 1950, § 8-810; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 6B M.J. Ejectment, § 31.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

When section applicable. - This section does not apply in favor of a claimant in condemnation proceedings. It is clear from the wording of the statute that it was not intended to apply in all controversies over the title to land, but only in the cases expressly mentioned. United States v. Grogg, 9 F.2d 424 (W.D. Va. 1925).

Liberal construction. - Although this section is a remedial statute and entitled to a liberal construction, such a construction should stop far short of carrying the statute to purposes and objects entirely beyond those mentioned in it. United States v. Grogg, 9 F.2d 424 (W.D. Va. 1925).

Burden on defendant of proving land within reservation. - The practical effect of this section is to place upon the defendant the burden of proving that the land in controversy lies within the limits of the reservation. Radford Veneer Corp. v. Jones, 143 Va. 124 , 129 S.E. 260 (1925); Sutherland v. Gent, 116 Va. 783 , 82 S.E. 713 (1914).

§ 8.01-141. When action by cotenants, etc., against cotenants, what plaintiff to prove.

If the action be by one or more tenants in common, joint tenants or coparceners against their cotenants, the plaintiff shall be bound to prove actual ouster or some other act amounting to total denial of the plaintiff's right as cotenant.

(Code 1950, § 8-811; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 5A M.J. Cotenancy, §§ 34, 43; 6B M.J. Ejectment, §§ 10, 48.

CASE NOTES

Nature of possession needed to constitute adverse possession. - The possession of one joint tenant, tenant in common, or coparcener is prima facie the possession of all the other cotenants, and the mere possession of the one will not be taken to be adverse to the title and possession of the other. Yet if the defendant prove actual ouster or other notorious act or acts, amounting to a total denial of the plaintiff's rights as cotenant, and of such a character as to afford direct or presumptive proof that the other cotenants or plaintiffs had had knowledge of the claim of exclusive ownership thus set up and held by the defendants, or those under whom they claim, such possession of the land is held continuously and uninterruptedly under such circumstances under color of title for the length of time prescribed by law, constitutes adverse possession, and will ripen into a good and sufficient title in the defendants. Stonestreet v. Doyle, 75 Va. 356 (1881) (decided under prior law).

Silent possession insufficient. - A silent possession by a cotenant, unaccompanied by acts amounting to an ouster, or giving notice of an adverse claim cannot be construed into adverse possession. Saunders v. Terry, 116 Va. 495 , 82 S.E. 68 (1914) (decided under prior law).

§ 8.01-142. Verdict when action against several defendants.

If the action be against several defendants, and a joint possession of all be proved, and the plaintiff be entitled to a verdict, it shall be against all, whether they pleaded separately or jointly.

(Code 1950, § 8-812; 1977, c. 617.)

§ 8.01-143. When there may be several judgments against defendants.

If the action be against several defendants, and it appear on the trial that any of them occupy distinct parcels in severalty or jointly, and that other defendants possess other parcels in severalty or jointly, the plaintiff may recover several judgments against them, for the parcels so held by one or more of the defendants, separately from others.

(Code 1950, § 8-813; 1977, c. 617.)

§ 8.01-144. Recovery of part of premises claimed.

The plaintiff may recover any specific or any undivided part or share of the premises, though it be less than he claimed in the motion for judgment.

(Code 1950, § 8-814; 1954, c. 333; 1977, c. 617.)

§ 8.01-145. When possession of part not possession of whole.

In a controversy affecting real estate, possession of part shall not be construed as possession of the whole when an actual adverse possession can be proved.

(Code 1950, § 8-815; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 1A M.J. Adverse Possession, §§ 8, 29; 6B M.J. Ejectment, § 27.

CASE NOTES

This statute was not passed merely for the protection of squatters, and must have been intended to embrace the case of an actual possession of the rightful owners beyond, and to the adverse claimant within, the limits of the part in controversy. Taylor v. Burnsides, 42 Va. (1 Gratt.) 165 (1844). See Stull v. Rich Patch Iron Co., 92 Va. 253 , 23 S.E. 293 (1895) (decided under prior law; "this statute" refers to former provisions).

§ 8.01-146. When vendee, etc., entitled to conveyance of legal title, vendor cannot recover.

A vendor, or any claiming under him, shall not, at law any more than in equity, recover against a vendee, or those claiming under him, lands sold by such vendor to such vendee, when there is a writing, stating the purchase and the terms thereof, signed by the vendor or his agent and there has been such payment or performance of what was contracted to be paid or performed on the part of the vendee, as would in equity entitle him, or those claiming under him, to a conveyance of the legal title of such land from the vendor, or those claiming under him, without condition.

(Code 1950, § 8-816; 1977, c. 617.)

Cross references. - As to right of defendant to resort to equity, see § 8.01-148 .

Michie's Jurisprudence. - For related discussion, see 6B M.J. Ejectment, § 30; 8B M.J. Forcible Entry and Detainer, §§ 12, 13, 19; 17 M.J. Specific Performance, § 48; 19 M.J. Vendor and Purchaser, § 100.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

The purpose of the section was to prevent oppression by one having mere legal title and to obviate the necessity for a jury in equity to establish a perfect defense. Until a statute was passed to remedy the evil, a vendee in possession, who had paid every dollar of his purchase money, and had written evidence of his contract, was liable to be turned out of possession at any time by his vendor upon the mere legal title, and was at least compelled to make his defense in a court of equity. And the same rule prevailed to a great extent with respect to mortgages and deeds of trust, which had been satisfied. Suttle v. Richmond, F. & P.R.R., 76 Va. 284 (1882).

This section is dictated by a restrictive and not by a general policy. Virginia Iron, Coal & Coke Co. v. Cranes' Nest Coal & Coke Co., 102 Va. 405 , 46 S.E. 393 (1904).

This section applies to the action of unlawful detainer as well as ejectment. Dobson v. Culpepper, 64 Va. (23 Gratt.) 352 (1873).

Written contract prerequisite. - Although a defendant in ejectment may be clothed with a perfect equitable title, he cannot avail himself thereof in ejectment unless he can bring himself within the terms of the section, requiring a contract in writing. Jennings v. Gravely, 92 Va. 377 , 23 S.E. 763 (1895).

Writing need not be produced in all cases. - The section does not admit of the construction that the writing must be produced in all cases, but that, although evidence of a parol contract is inadmissible, the best possible evidence of the required writing may be admitted. The writing must have been executed, but it may be established by pleadings in a court of record, and by reference in the record to a contract as a document filed in the court. Clinchfield Coal Corp. v. Steinman, 223 F. 743 (4th Cir. 1915).

Contract must also be performed. - In order to rely on this section, the defendant must show not only the written contract of sale setting out the terms but also his own performance of the contract. Dobson v. Culpepper, 64 Va. (23 Gratt.) 352 (1873).

Defendant may resort to equity to enjoin the enforcement of a judgment rendered against him in an action of ejectment even though the equitable defense might, under this section, have been proved in the action of ejectment. Withrow v. Porter, 131 Va. 623 , 109 S.E. 441 (1921).

Equitable estoppel cannot be set up as a defense to an action of ejectment. Casselman v. Bialas, 112 Va. 57 , 70 S.E. 479 (1911); Suttle v. Richmond, F. & P.R.R., 76 Va. 284 (1882).

The equitable defense under this section is limited to mortgages and deeds of trust, where the mortgage money has been fully paid, or the trust completely performed; or to sales, where the vendee has paid all the purchase money and performed everything incumbent on him, so as to entitle him to a specific execution on the contract in equity, and a conveyance of the legal title, without any condition proper in equity to be on him imposed. It must be a sale, and not a partnership in the acquisition of the land, and the terms of the contract must be plain. Davis v. Teays, 44 Va. (3 Gratt.) 283 (1846).

§ 8.01-147. When mortgagee or trustee not to recover.

The payment of the whole sum, or the performance of the whole duty, or the accomplishment of the whole purpose, which any mortgage or deed of trust may have been made to secure or effect, shall prevent the grantee, or his heirs, from recovering at law, by virtue of such mortgage or deed of trust, property thereby conveyed, whenever the defendant would in equity be entitled to a decree, revesting the legal title in him without condition.

(Code 1950, § 8-817; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 6B M.J. Ejectment, §§ 12, 30; 8B M.J. Forcible Entry and Detainer, §§ 10, 13; 13A M.J. Mortgages and Deeds of Trust, § 82; 17 M.J. Specific Performance, § 48.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

Grantor may bring action. - Where a deed of trust by a wife was satisfied and reconveyance made to the husband, it was held under this section that neither the trustee nor the husband should bring ejectment but that the wife was the proper party. The effect of the section is to prevent the trustee from bringing ejectment and to authorize the grantor to maintain such an action. Lynchburg Cotton Mill v. Rives, 112 Va. 137 , 70 S.E. 542 (1911).

Purchaser from trust. - Where land was conveyed in trust to secure specific debts and afterwards conveyed outright, the purchaser takes good title subject to the trust, and when that is satisfied is entitled to the benefit of this section, though the trustee has not conveyed it to him. Hale v. Horne, 62 Va. (21 Gratt.) 112 (1871).

§ 8.01-148. Right of defendant to resort to equity not affected.

Whether the defendant shall or shall not make or attempt a defense under §§ 8.01-146 and 8.01-147 , he shall not be precluded from resorting to equity for any relief to which he would have been entitled if such sections had not been enacted.

(Code 1950, § 8-818; 1954, c. 333; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 6B M.J. Ejectment, § 30; 8B M.J. Forcible Entry and Detainer, § 13; 17 M.J. Specific Performance, § 48.

CASE NOTES

Effect of this section. - If the equitable matter on which a party relies to obtain an injunction against the enforcement of a judgment in ejectment against him could not have been shown in that action under §§ 8.01-146 and 8.01-147 , to offer it as a defense in that action would have been futile. If, on the other hand, it was such a defense, then under the express terms of this section, whether defendant does or does not attempt such equitable defense, he is not precluded from resorting to equity. Withrow v. Porter, 131 Va. 623 , 109 S.E. 441 (1921) (decided under corresponding provisions of former law).

Applied in Brown v. Haley, 233 Va. 210 , 355 S.E.2d 563 (1987).

§ 8.01-149. Verdict when jury finds for plaintiffs or any of them.

If the jury be of opinion for the plaintiffs, or any of them, the verdict shall be for the plaintiffs, or such of them as appear to have right to the possession of the premises, or any part thereof, and against such of the defendants as were in possession thereof or claimed title thereto at the commencement of the action.

(Code 1950, § 8-819; 1977, c. 617.)

Cross references. - As to recovery of part of premises claimed, see § 8.01-144 .

Michie's Jurisprudence. - For related discussion, see 6B M.J. Ejectment, §§ 43, 44.

CASE NOTES

Sufficient compliance. - A finding for the plaintiff on the "remaining one third of the several tracts of land claimed as aforesaid by the defendants, and of which two thirds have been found for them," was held a sufficient compliance with a former version of this section. Collins v. Riley, 104 U.S. 322, 26 L. Ed. 752 (1881) (decided under prior law).

§ 8.01-150. Verdict when any plaintiff has no right.

When any plaintiff appears to have no such right, the verdict as to such plaintiff shall be for the defendants.

(Code 1950, § 8-820; 1977, c. 617.)

§ 8.01-151. How verdict to specify premises recovered.

When the right of the plaintiff is proved to all the premises claimed, the verdict shall be for the premises generally as specified in the motion for judgment, but if it be proved to only a part or share of the premises, the verdict shall specify such part particularly as the same is proved, and with the same certainty of description as is required in the motion for judgment.

(Code 1950, § 8-821; 1954, c. 333; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 6B M.J. Ejectment, § 46.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

This section is mandatory and it is reversible error to render judgment on a verdict that fails to comply with its requirements. Grizzle v. Davis, 119 Va. 567 , 89 S.E. 870 (1916). See Smith v. Bailey, 141 Va. 757 , 127 S.E. 89 (1925).

Plaintiff put on terms or new trial granted if verdict excessive. - If the verdict of the jury, in an action of ejectment, finds for the plaintiff more land than he is entitled to recover the courts shall put him on terms to release the excess by proper description, or else grant a new trial. Fry v. Stowers, 98 Va. 417 , 36 S.E. 482 (1900).

§ 8.01-152. How verdict to specify undivided interest or share.

If the verdict be for an undivided share or interest in the premises claimed, it shall specify the same, and if for an undivided share or interest of a part of the premises, it shall specify such share or interest, and describe such part as before required.

(Code 1950, § 8-822; 1977, c. 617.)

CASE NOTES

One joint tenant cannot recover the interest of all as sole plaintiff. Therefore his undivided interest must be clearly designated. Marshall v. Palmer, 91 Va. 344 , 21 S.E. 672 (1895)(decided under prior provisions) (decided under prior provisions). See also, Nye v. Lovitt, 92 Va. 710 , 24 S.E. 345 (1896) (decided under prior provisions).

§ 8.01-153. Verdict to specify estate of plaintiff.

The verdict shall also specify the estate found in the plaintiff, whether it be in fee or for life, stating for whose life, or whether it be a term of years, and specifying the duration of such term.

(Code 1950, § 8-823; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 6B M.J. Ejectment, § 47.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

Sufficient verdict. - Where the motion stated that plaintiff held title in fee simple to lands, a verdict finding the defendant guilty "in manner and form as stated in the motion," was held a sufficient description of the estate to which the plaintiff was entitled. Hawley v. Twyman, 65 Va. (24 Gratt.) 516 (1874).

Defective verdict. - A verdict: "We, the jury, find for the plaintiff," is fatally defective in that it fails to specify the estate found in the plaintiff as required by this section. White v. Lee, 144 Va. 523 , 132 S.E. 307 (1926).

Action for use of lands for uncertain and indefinite period. An action of ejectment does not lie to recover the mere use of unemployed lands for an uncertain and indefinite period under this section. King v. Norfolk & W. Ry., 99 Va. 625 , 39 S.E. 701 (1901).

§ 8.01-154. When right of plaintiff expires before trial, what judgment entered.

If the right or title of a plaintiff in ejectment expire after the commencement of the suit, but before trial, the verdict shall be according to the fact, and judgment shall be entered for his damages sustained from the withholding of the premises by the defendant, and as to the premises claimed, the judgment shall be for the defendant.

(Code 1950, § 8-824; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 6B M.J. Ejectment, §§ 6, 26.

CASE NOTES

Right to recover at commencement of suit is all required by the statute. When several plaintiffs after suit brought aliened their interest in the land, it was held that such alienation cannot prevent their recovery for benefit of the alienee. Bolling v. Teel, 76 Va. 487 (1882) (decided under prior law).

§ 8.01-155. How judgment for plaintiff entered.

The judgment for the plaintiff shall be, that he recover the possession of the premises, according to the verdict of the jury, if there be a verdict, or if the judgment be by default, or on demurrer, according to the description thereof in the motion for judgment.

(Code 1950, § 8-825; 1954, c. 333; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 6B M.J. Ejectment, § 49.

§ 8.01-156. Authority of sheriffs, etc., to store and sell personal property removed from premises; recovery of possession by owner; disposition or sale.

In any county or city, when personal property is removed from premises pursuant to an action of unlawful detainer or ejectment, or pursuant to any other action in which personal property is removed from premises in order to restore such premises to the person entitled thereto, the sheriff shall oversee the removal of such personal property and it shall be placed in a storage area designated by the governing body of the county or city if such an area has been so designated, or, in the case of a manufactured home, at the request of the owner of the real property, to be placed into a storage area designated by the owner of the real property which may be the manufactured home lot or other location within the manufactured home park, unless the owner of such personal property then and there removes it from the public way. The sheriff and the owner of the real property shall not have any liability for the loss of any such manufactured home remaining on the manufactured home lot, nor shall they have any liability for the loss of any removed personal property.

The owner, before obtaining possession of such personal property so placed in a storage area shall pay to the parties entitled thereto the reasonable and necessary costs incidental to such removal and storage. Should such owner fail or refuse to pay such costs within 30 days from the date of placing the property in storage, the sheriff shall, after due notice to the owner and holders of liens of record, dispose of the property by publicly advertised public sale. The proceeds from such sale shall be used to pay all costs of removal, storage, and sale, all fees and liens, and the balance of such funds shall be paid to the person entitled thereto. Should the cost of removal and storage exceed the proceeds realized from such sale the county or city shall reimburse the sheriff for such excess, except that any such excess costs related to the disposal of a manufactured home shall be paid by the owner of the real property from which the manufactured home was removed. The sheriff, in his discretion, may refuse to remove or dispose of such manufactured home until the owner of the real property pays to the sheriff the estimated cost of such removal and disposition. Subsequent to disposition, the sheriff shall reimburse the owner to the extent the actual cost is less than the estimated cost, or shall request additional payment to the extent the actual cost exceeds the estimated cost.

(Code 1950, § 8-825.1; 1964, c. 387; 1977, c. 617; 1992, c. 454; 1993, c. 16; 2005, c. 791; 2006, c. 129.)

The 2005 amendments. - The 2005 amendment by c. 791, in the first paragraph, substituted "at the request of the owner of the real property, to be placed into a storage area designated by the owner of the real property which may be" for "and with the consent of the lot owner, upon," and inserted "or other location within the manufactured home park," and inserted the last sentence; in the last paragraph, substituted "30" for "thirty," inserted "except that any such excess costs related to the disposal of a manufactured home shall be paid by the owner of the real property from which the manufactured home was removed" at the end of the fourth sentence; and added the last two sentences.

The 2006 amendments. - The 2006 amendment by c. 129, in the first paragraph, substituted "oversee the removal of such personal property and it shall" for "cause such personal property to" in the first sentence and added the language beginning "nor shall they have any liability" at the end of the last sentence; and deleted "by the sheriff" following "storage area" in the first sentence of the last paragraph.

Law review. - For 2007 annual survey article, "Civil Practice and Procedure," see 42 U. Rich. L. Rev. 229 (2007).

Michie's Jurisprudence. - For related discussion, see 3C M.J. Commercial Law, § 95.

§ 8.01-157.

Repealed by Acts 1990, c. 831, effective January 1, 1991.

Cross references. - As to the abolition of dower and curtesy, see § 64.2-301 .

§ 8.01-158. How claim of plaintiff for profits and damages assessed.

If the plaintiff file with his motion for judgment a statement of the profits and other damages which he means to demand, and the jury find in his favor, they shall, at the same time, unless the court otherwise order, assess the damages for mesne profits of the land for any period not exceeding five years previously to the commencement of the suit until the verdict, and also the damages for any destruction or waste of the buildings or other property during the same time for which the defendant is chargeable.

(Code 1950, § 8-827; 1954, c. 333; 1977, c. 617.)

Cross references. - For assessment of damages for improvements, see §§ 8.01-166 through 8.01-178 .

Michie's Jurisprudence. - For related discussion, see 6B M.J. Ejectment, § 40.

CASE NOTES

When jury to ascertain damages. - Where the statements of profits and damages are filed with the motion, the jury sworn to try the issue in ejectment may at the same time make the required inquiries; or the inquiries may, if the court so order, be made by the same jury after verdict or by a new jury. Goodwyn v. Myers, 57 Va. (16 Gratt.) 336 (1862) (decided under prior law).

It is proper to charge interest upon rents and profits. Bolling v. Lersner, 67 Va. (26 Gratt.) 36, appeal dismissed, 91 U.S. 594, 23 L. Ed. 366 (1875) (decided under prior law).

§ 8.01-159. When court to assess damages.

If there be no issue of fact tried in the cause, and judgment is to be rendered for the plaintiff on demurrer, or otherwise, such damages shall be assessed by the court, unless either party shall move to have them assessed by a jury, or the court shall think proper to have them so assessed, in which case a jury shall be impaneled to assess them. If the defendant is in default the court shall proceed to render judgment and assess damages as provided in Rule of Court 3:19.

(Code 1950, § 8-828; 1954, c. 333; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 6B M.J. Ejectment, § 40.

CASE NOTES

When inquiry of damages proper. - An office judgment in an action of ejectment does not become final without the intervention of the court or a jury; but there ought, in every such case, to be an order for an inquiry of damages. James River & Kanawha Co. v. Lee, 57 Va. (16 Gratt.) 424 (1863); Smithson v. Briggs, 74 Va. (33 Gratt.) 180 (1880). The cases cited above were decided under, and refer to, corresponding former provisions.

When inquiry unnecessary. - When the plaintiff did not file a statement of damages in ejectment and the defendant was in default, the court was authorized, under this section, at the term following the office judgment after default, or at any subsequent term, to enter judgment that plaintiff recover possession of the land sued for, and make such office judgment final, without setting the cause for inquiry at the next term. King v. Davis, 137 F. 222 (C.C.W.D. Va. 1905), aff'd sub nom. Blankenship v. King, 157 F. 676 (4th Cir. 1906) (decided under prior law).

§ 8.01-160. Defendant to give notice of claim for improvements.

If the defendant intends to claim allowance for improvements made upon the premises by himself or those under whom he claims, he shall file with his pleading a statement of his claim therefor, in case judgment be rendered for the plaintiff.

(Code 1950, § 8-829; 1954, c. 333; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 6B M.J. Ejectment, § 41; 9B M.J. Improvements, § 23.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

Section only applies when decree or judgment against defendant. - In interpreting this section and § 8.01-166 , it is held that they apply only to actions of ejectment or to cases in which a judgment or decree is entered against the defendant for land. Wood v. Krebbs, 74 Va. (33 Gratt.) 685 (1880); Effinger v. Hall, 81 Va. 94 (1885); Truslow v. Ball, 166 Va. 608 , 186 S.E. 71 (1936).

Section does not apply in suits to enforce parol contracts to convey real estate. Truslow v. Ball, 166 Va. 608 , 186 S.E. 71 (1936).

Nor to action by judgment creditor. - The provisions of this section have no application to a judgment creditor seeking to enforce his lien upon the land upon which the improvements have been made. Flanary v. Kane, 102 Va. 547 , 46 S.E. 312 , rehearing denied, 46 S.E. 681 (1904).

§ 8.01-161. How allowed.

In such case, the damages of the plaintiff, and the allowance to the defendant for improvements, shall be estimated, and the balance ascertained, and judgment therefor rendered, as prescribed in Article 15 (§ 8.01-166 et seq.) of this chapter.

(Code 1950, § 8-830; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 6B M.J. Ejectment, § 40.

CASE NOTES

Same jury passes on claims for mesne profits, waste, and improvements. - In actions of ejectment if there is a claim by the plaintiff for mesne profits and damages for waste, and by defendant for improvements, both claims must be passed upon by the same jury. Goodwyn v. Myers, 57 Va. (16 Gratt.) 336 (1862) (decided under prior law).

§ 8.01-162. Postponement of assessment and allowance.

On the motion of either party, the court may order the assessment of such damages and allowance to be postponed until after the verdict on the title is recorded.

(Code 1950, § 8-831; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 6B M.J. Ejectment, § 40; 9B M.J. Improvements, § 23.

§ 8.01-163. Judgment to be conclusive.

Any such judgment in an action of ejectment shall be conclusive as to the title or right of possession established in such action, upon the party against whom it is rendered, and against all persons claiming from, through, or under such party, by title accruing after the commencement of such action, except as hereinafter mentioned.

(Code 1950, § 8-832; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 6B M.J. Ejectment, § 49; 8B M.J. Former Adjudication or Res Judicata, § 67.

CASE NOTES

The judgment referred to in this section is one on the merits. Payne v. Buena Vista Extract Co., 124 Va. 296 , 98 S.E. 34 (1919) (decided under prior law).

Holding did not purport to, and could not, affect the rights of persons who were not parties or their successors in interest. See Page v. Luhring, 211 Va. 503 , 178 S.E.2d 527 (1971) (decided under prior law).

Landlord not bound by judgment against tenant. - When the tenant alone was sued in ejectment to recover land on which the tenant was in possession, and, before execution, the tenant removed and the landlord entered, neither the landlord nor a subsequent tenant could be considered as claiming through or under the former tenant who was sued. The landlord was therefore not bound by the judgment as an estoppel. King v. Davis, 137 F. 198 (C.C.W.D. Va. 1903), aff'd Blankenship v. King, 157 F. 676 (4th Cir. 1906) (decided under prior law).

Applied in Providence Properties, Inc. v. United Va. Bank/Seaboard Nat'l, 219 Va. 735 , 251 S.E.2d 474 (1979).

§ 8.01-164. Recovery of mesne profits, etc., not affected.

Nothing in this chapter shall prevent the plaintiff from recovering mesne profits, or damages done to the premises, from any person other than the defendant, who may be liable to such action.

(Code 1950, § 8-834; 1977, c. 617.)

§ 8.01-165. Writ of right, etc., abolished.

No writ of right, writ of entry, or writ of formedon, shall be hereafter brought.

(Code 1950, § 8-835; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 19 M.J. Trial, § 11.

Article 15. Improvements.

§ 8.01-166. How defendant may apply therefor, and have judgment suspended.

Any defendant against whom a decree or judgment shall be rendered for land, when no assessment of damages has been made under Article 14 (§ 8.01-131 et seq.) of this chapter, may, at any time before the execution of the decree or judgment, present a pleading to the court rendering such decree or judgment, stating that he, or those under whom he claims while holding the premises under a title believed by him or them to have been good, have made permanent improvements thereon, and moving that he should have an allowance for the same which are over and above the value of the use and occupation of such land; and thereupon the court may, if satisfied of the probable truth of the allegation, suspend the execution of the judgment or decree, and impanel a jury to assess the damages of the plaintiff, and the allowances to the defendant for such improvements.

(Code 1950, § 8-842; 1977, c. 617.)

Cross references. - As to defendant's claim for improvements in action of ejectment, see § 8.01-160 .

Michie's Jurisprudence. - For related discussion, see 3A M.J. Boundaries, § 28; 9B M.J. Improvements, §§ 9, 11, 23.

Editor's note. - Many of the cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

This section alters the common-law rule and allows, as a set-off to the plaintiff's claim for rent and damages, compensation for permanent improvements made by defendant at a time when there was reason to believe the title good under which he was holding the premises, not exceeding, however, the increase of value to the same. Hollingsworth v. Funkhouser, 85 Va. 448 , 8 S.E. 592 (1888) (decided under prior law).

It applies only to actions of ejectment or to cases in which a decree or judgment is rendered against a defendant for land. It does not apply to a suit for the specific enforcement of an alleged parol contract to convey land. Graeme v. Cullen, 64 Va. (23 Gratt.) 266 (1873); Branham v. Artrip, 115 Va. 314 , 79 S.E. 390 (1913).

It has no application to the case of a purchaser at a judicial sale, against whom a claim for the purchase money is asserted, and in whose favor there has been no decree of confirmation. Tyler v. Toms, 75 Va. 116 (1880) (decided under prior law).

Nor to a judgment creditor seeking to enforce his lien upon the land upon which the improvements have been made. Flanary v. Kane, 102 Va. 547 , 46 S.E. 312 , rehearing denied, 46 S.E. 681 (1904) (decided under prior law).

No allowance is made for improvements erected by one who is not a bona fide purchaser. Burton v. Mill, 78 Va. 468 (1884); Smith v. Woodward, 122 Va. 356 , 94 S.E. 916 (1918). The cases cited above were decided under prior law.

Effect of being life tenant. - A party cannot be said to be acting in good faith in putting improvements on land when he knows that at best he has only a life estate in the land. Wright v. Johnson, 108 Va. 855 , 62 S.E. 948 (1908) (decided under prior law).

Whenever there is a duty to inquiry, the party bound to inquire is affected with knowledge of all that would have been discovered had the party performed the duty. Richardson v. Parris, 246 Va. 203 , 435 S.E.2d 389 (1993).

Inapplicable to one with notice of infirmity in his title. - Although this section permits a recovery for improvements when the one who made them mistakenly held the land "under a title believed by him . . . to have been good," this section has no application to one who is not a bona fide purchaser, and a person with notice, actual or constructive, of infirmity in his title cannot recover for improvements. White v. Pleasants, 227 Va. 508 , 317 S.E.2d 489 (1984).

In order to be a bona fide purchaser and therefore qualify for protection under this section, the belief in the validity of the title must be founded on ignorance of fact, not ignorance of law. Richardson v. Parris, 246 Va. 203 , 435 S.E.2d 389 (1993).

Effect of actual or constructive notice. - Under this section a person with notice, actual or constructive, of a defect in his title is not entitled, upon being dispossessed by the rightful owner, to recover compensation for permanent improvements made on the premises. Kian v. Kefalogiannis, 158 Va. 129 , 163 S.E. 535 (1932). See Keister v. Cubine, 101 Va. 768 , 45 S.E. 285 (1903); Truslow v. Ball, 166 Va. 608 , 186 S.E. 71 (1936).

This section restricts recovery for improvements to one "holding the premises under a title believed by him . . . to be good." This section has no application to one who is not a bona fide purchaser, and a person with notice, actual or constructive, of infirmity in his title cannot recover for improvements. Graeme v. Cullen, 64 Va. (23 Gratt.) 266 (1873); Hurn v. Keller, 79 Va. 415 (1884); Smith v. Woodward, 122 Va. 356 , 94 S.E. 916 (1918).

Means of notice with the duty of using those means, is equivalent to actual notice. Effinger v. Hall, 81 Va. 94 (1885) (decided under prior law).

Effect of laches on part of plaintiff. - If the owner is guilty of gross laches in asserting his claim, after he is apprised of it, he will not be permitted to recover, except upon compensation. Walker v. Beauchler, 68 Va. (27 Gratt.) 511 (1876); Wood v. Krebbs, 74 Va. (33 Gratt.) 685 (1880).

What constitutes permanent improvement. - Whether the work was done and the money expended with reference to the future betterment of the premises, or for future immediate advantage of the occupant is the consideration which should control. Cullop v. Leonard, 97 Va. 256 , 33 S.E. 611 (1899) (decided under prior law).

Commercial fertilizers cannot be regarded as permanent improvements. Effinger v. Kenney, 92 Va. 245 , 23 S.E. 742 (1895). See also, Wright v. Johnson, 108 Va. 855 , 62 S.E. 948 (1908).

Recovery for improvements unavailable. - Where the insufficiency of the affidavit for the order of publication was apparent on the face of the record to be discovered by the subsequent purchaser or their agent before entry of the decree confirming the sale, the failure to recognize the facial insufficiency of the affidavit was ignorance of law, not ignorance of fact. Thus, because the subsequent purchaser had constructive notice of the title infirmity, they were not bona fide purchasers and were precluded from recovering for improvements. Richardson v. Parris, 246 Va. 203 , 435 S.E.2d 389 (1993).

Applied in Richmond v. Hall, 251 Va. 151 , 466 S.E.2d 103 (1996).

§ 8.01-167. How damages of plaintiff assessed.

The jury, in assessing such damages, either under this article or under Article 14 (§ 8.01-131 et seq.) of this chapter, shall determine the annual value of the premises during the time the defendant was in possession thereof, exclusive of the use by the tenant of the improvements thereon made by himself or those under whom he claims, and also the damages for waste or other injury to the premises committed by the defendant.

(Code 1950, § 8-843; 1977, c. 617.)

CASE NOTES

What to be offset. - The clear annual value, exclusive of the improvements, of the premises during the time he was in possession, is estimated by the jury against the defendant. This value, and other damages, if any, in behalf of the plaintiff, and the allowance to the defendant for improvements, shall be offsets, one against the other. Wood v. Krebbs, 74 Va. (33 Gratt.) 685 (1880); Hollingsworth v. Funkhouser, 85 Va. 448 , 8 S.E. 592 (1888). The cases cited above were decided under prior law.

Plaintiff's remedy to recover damages in proceeding to establish boundaries to land. - For discussion of the remedy of plaintiff in a proceeding to establish boundaries to land under corresponding former provisions, see Brunswick Land Corp. v. Perkinson, 153 Va. 603 , 151 S.E. 138 (1928).

§ 8.01-168. For what time.

The defendant shall not be liable for such annual value for any longer time than five years before the suit, or for damages for any such waste or other injury done before such five years, except when he claims for improvements as aforesaid.

(Code 1950, § 8-844; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 9B M.J. Improvements, § 15.

§ 8.01-169. How value of improvements determined in favor of defendant.

If the jury shall be satisfied that the defendant, or those under whom he claims, made on the premises, at a time when there was reason to believe the title good under which he or they were holding the same, permanent and valuable improvements, they shall determine the value of such improvements as were so made before receipt by the person making the same of notice in writing of the title under which the plaintiff claims, not exceeding the amount actually expended in making them, and not exceeding the amount to which the value of the premises is actually increased thereby at the time of such determination.

(Code 1950, § 8-845; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 9B M.J. Improvements, § 14.

CASE NOTES

Proof of value. - Compensation can only be allowed upon clear and full proof of the amount to which the value of the premises is actually increased thereby at the time of the assessment. Hollingsworth v. Funkhouser, 85 Va. 448 , 8 S.E. 592 (1888) (decided under prior law).

Purchaser cannot close eyes to record title. - To hold that a purchaser can close his eyes to his record title and recover for improvements on the theory that "there was reason to believe the title good" would be to set a premium on negligence and nullify our registry statutes. McDonald v. Rothgib, 112 Va. 749 , 72 S.E. 692 (1911) (decided under prior law).

§ 8.01-170. If allowance for improvements exceed damages, what to be done.

If the sum determined for the improvements exceed the damages determined by the jury against the defendant as aforesaid, they shall then determine against him, for any time before such five years, the rents and profits accrued against, or damage for waste or other injury done by him, or those under whom he claims, so far as may be necessary to balance his claim for improvements, but in such case he shall not be liable for the excess, if any, of such rents and profits, or damages, beyond the value of the improvements.

(Code 1950, § 8-846; 1977, c. 617.)

CASE NOTES

The defendant, as tenant in possession, is entitled to compensation for improvements made in excess of the benefits derived from the use and occupation of the land. Wood v. Krebbs, 74 Va. (33 Gratt.) 685 (1880) (decided under prior law).

Defendant was to be charged for the rents and profits of the land exclusive of his improvements, while he held it, and to be allowed a reasonable compensation for the permanent improvements he had made upon it, though this shall be in excess of the rents and profits. Walker v. Beauchler, 68 Va. (27 Gratt.) 511 (1876) (decided under prior law).

§ 8.01-171. Verdict for balance, after offsetting damages against improvements.

After offsetting the damages assessed for the plaintiff and the allowances to the defendant for improvements, if any, the jury shall find a verdict for the balance for the plaintiff or defendant, as the case may be, and judgment or decree shall be entered therefor according to the verdict.

(Code 1950, § 8-847; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 9B M.J. Improvements, § 24.

§ 8.01-172. Balance for defendant a lien on the land.

Any such balance due to the defendant shall constitute a lien upon the land recovered by the plaintiff, until the same shall be paid.

(Code 1950, § 8-848; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 9B M.J. Improvements, § 15.

§ 8.01-173. How tenant for life, paying for improvements, reimbursed.

If the plaintiff claim only an estate for life in the land recovered, and pay any sum allowed to the defendant for improvements, he, or his personal representative at the determination of his estate, may recover from the remainderman or reversioner, the value of such improvements as they then exist, not exceeding the amount so paid by him, and shall have a lien therefor on the premises, in like manner as if they had been mortgaged for the payment thereof, and may keep possession of such premises until the same be paid.

(Code 1950, § 8-849; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 9B M.J. Improvements, § 19.

CASE NOTES

When a life tenant makes improvements himself, they constitute no charge upon the land when it passes to the reversioner or remainderman, according to the general rule. Effinger v. Hall, 81 Va. 94 (1885) (decided under prior law).

§ 8.01-174. Exception as to mortgagees and trustees.

Nothing in this article, nor anything concerning rents, profits, and improvements, in Article 14 (§ 8.01-131 et seq.) of this chapter, shall extend or apply to any suit brought by a mortgagee, or trustee in a deed of trust to secure creditors, his heirs, or assigns, against a mortgagor or grantor in such deed of trust, his heirs, or assigns, for the recovery of the mortgaged premises or of the land conveyed by such deed of trust.

(Code 1950, § 8-850; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 9B M.J. Improvements, § 18; 13A M.J. Mortgages and Deeds of Trust, § 57.

§ 8.01-175. When plaintiff may require his estate only to be valued; how determined; how he may elect to relinquish his title to defendant.

When the defendant shall claim allowance for improvements, the plaintiff may, by an entry on the record, require that the value of his estate in the premises, without the improvements, shall also be ascertained.
The value of the premises in such case shall be determined as it would have been at the time of the inquiry, if no such improvements had been made, and shall be ascertained in the manner hereinbefore provided for determining the value of improvements.
The plaintiff in such case, if judgment is rendered for him, may at any time, enter on the record his election to relinquish his estate in the premises to the defendant at the value so ascertained under this section, and the defendant shall thenceforth hold all the estate that the plaintiff had therein at the commencement of the suit, provided he pay therefor such value, with interest, in the manner in which the court may direct.
(Code 1950, §§ 8-851, 8-852, 8-853; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 9B M.J. Improvements, § 16.

Editor's note. - The cases cited below were decided under corresponding provisions of former law.

CASE NOTES

Value of plaintiff's estate ascertained as of same time as the improvement. - The value of the plaintiff's estate in the premises without the improvements, is to be ascertained as at the time when the assessment of the value of the improvements was made. Goodwyn v. Myers, 57 Va. (16 Gratt.) 336 (1862). See also, Corr v. Porter, 74 Va. (33 Gratt.) 278 (1880).

Estate to be valued by a different jury. - If defendant claims for improvements on the land, the plaintiff may at any time before a judgment is rendered on the assessment of the value of the improvements, though after the jury which tried the issue or passed upon the defendant's claim for improvement has been discharged, require that the value of his estate in the premises, without the improvements, shall also be ascertained. This inquiry is to be made by another jury. Goodwyn v. Myers, 57 Va. (16 Gratt.) 336 (1862).

Where the plaintiff in the ejectment suit requires the value of his estate in the premises in controversy to be ascertained, the inquiry must be made by a different jury from that which tried the cause on its merits. Goodwyn v. Myers, 57 Va. (16 Gratt.) 336 (1862); Corr v. Porter, 74 Va. (33 Gratt.) 278 (1880).

No objection to use of same jury can be made after verdict. - The same jury which tried the case on its merits was allowed, without objection from either side, to fix the value of the land, the rents and profits thereof, and the value of the improvements claimed by the defendant. It is too late after verdict to object to this action of the court. Corr v. Porter, 74 Va. (33 Gratt.) 278 (1880).

§ 8.01-176. How payment of such value to be made by defendant; when land sold therefor.

The payments shall be made to the plaintiff, or into court for his use, and the land shall be bound therefor, and if the defendant fail to make such payments within or at the times limited therefor respectively, the court may order the land to be sold and the proceeds applied to the payment of such value and interest, and the surplus, if any, to be paid to the defendant; but if the net proceeds be insufficient to satisfy such value and interest, the defendant shall not be bound for the deficiency.

(Code 1950, § 8-854; 1977, c. 617.)

§ 8.01-177. When such value to be deemed real estate.

If the party by or for whom the land is claimed in the suit be a person under a disability, such value shall be deemed to be real estate, and be disposed of as the court may consider proper for the benefit of the persons interested therein.

(Code 1950, § 8-855; 1977, c. 617.)

§ 8.01-178. When and how defendant, if evicted, may recover from plaintiff amount paid.

If the defendant or his heirs or assigns shall, after the premises are so relinquished to him, be evicted thereof by force of any better title than that of the original plaintiff, the person so evicted may recover from such plaintiff or his representative the amount so paid for the premises, as so much money had and received by such plaintiff in his lifetime for the use of such person, with lawful interest thereon from the time of such payment.

(Code 1950, § 8-856; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 17 M.J. Specific Performance, § 110.

Article 15.1. Waste.

§ 8.01-178.1. Waste; who is liable.

Any tenant of land or any person who has aliened land who commits any waste while he is in possession of such land, unless he has special license to do so, shall be liable for damages.
Any tenant in common, joint tenant, or parcener who commits waste, shall be liable to his cotenants, jointly or severally, for damages.
Any guardian or conservator who commits waste of the estate of his ward shall be liable to the ward, at the expiration of his guardianship or conservatorship, for damages.
(Code 1919, §§ 5506 through 5508; Code 1950, §§ 55-211 through 55-213; 1997, c. 801; 2019, c. 712.)

Editor's note. - Acts 2019, c. 712, recodified Title 55 as Title 55.1, effective October 1, 2019. As part of the recodification, former Chapter 12 ( § 55-211 et seq.) of Title 55 was recodified as Article 15.1 ( § 8.01-178.1 et seq.) of Chapter 3 of this title. Where appropriate, the historical citations to former sections have been added to corresponding new sections. For transition provisions, see §§ 55.1-100 . For tables of corresponding former and new sections, see the tables in Volume 10.

Acts 2019, c. 712, cl. 13 provides: "That the provisions of this act shall become effective on October 1, 2019."

Michie's Jurisprudence. - For related discussion, see 5A M.J. Cotenancy, §§ 19, 41; 11B M.J. Landlord and Tenant, § 33; 20 M.J. Waste, §§ 2, 4.

CASE NOTES

I. Decided Under Prior Law.

I. DECIDED UNDER PRIOR LAW.

The remedy for waste given by this section is not exclusive, and the lower court erred in dismissing a suit to enjoin the lessee of land used as a filling station from removing a large oil tank from the premises. Roanoke Marble & Granite Co. v. Standard Gas & Oil Supply Co., 155 Va. 249 , 154 S.E. 518 (1930).

Court of equity may prohibit waste. - Notwithstanding remedies available under this section and § 55-212, a court of equity, in a proper case, may grant an injunction to prohibit waste. Chosar Corp. v. Owens, 235 Va. 660 , 370 S.E.2d 305 (1988).

As to tenant for life under former statute, see Dejarnette v. Allen, 46 Va. (5 Gratt.) 499 (1849).

CIRCUIT COURT OPINIONS

Distribution of marital property. - In a divorce case, a wife's 50% share of marital property was reduced by $26,000 because she committed permissive waste under § 55-211 by allowing the property to deteriorate in the 17 years she had lived there; the house was remodeled and in good condition when she moved in. Although the wife had an interest in the value of the marital estate, she did not have an ownership interest in it, and the property was titled in her husband's name. Bell v. Bell, 89 Va. Cir. 472, 2013 Va. Cir. LEXIS 2 (Roanoke County Jan. 30, 2013).

In a divorce case, a court valued the marital property and a husband was permitted to convey one parcel of property to the wife; the wife's 50% share included a $26,000 devaluation that occurred due to the wife's commission of permissive waste on property that she occupied after the parties' separation. The rest of the amount owed to the wife was reduced to a monetary judgment after the entry of a final divorce decree. Bell v. Bell, 89 Va. Cir. 472, 2013 Va. Cir. LEXIS 2 (Roanoke County Jan. 30, 2013).

In a divorce case, a court decided to value the property currently, instead of using the date that the parties separated 17 years earlier, because passive appreciation had occurred; moreover, evidence was presented as to the dollar amount of the repairs needed due to the wife's commission of permissive waste. Using the current valuation date instead of the date of separation allowed the court to consider all of the factors necessary to arrive at a fair and equitable monetary award. Bell v. Bell, 89 Va. Cir. 472, 2013 Va. Cir. LEXIS 2 (Roanoke County Jan. 30, 2013).

§ 8.01-178.2. Civil action for waste; double damages.

Any person who is injured due to another person's committing waste on his land may recover damages for such waste by initiating a civil action. If a jury finds that the waste was a result of wanton misconduct, judgment shall be for double the amount of damages assessed.

(Code 1919, § 5509; Code 1950, § 55-214; 2019, c. 712.)

Editor's note. - Acts 2019, c. 712, cl. 13 provides: "That the provisions of this act shall become effective on October 1, 2019."

CASE NOTES

I. Decided Under Prior Law.

I. DECIDED UNDER PRIOR LAW.

Wanton waste, double damage and its extent are jury questions. Kavanaugh v. Donovan, 186 Va. 85 , 41 S.E.2d 489 (1947).

And the jury should be instructed on the meaning of waste committed wantonly under this section, in order to be properly informed whether to punish the defendants for wanton acts, if any, by fixing double damages. Kavanaugh v. Donovan, 186 Va. 85 , 41 S.E.2d 489 (1947).

§ 8.01-178.3. Waste for tenant to sell or remove manure from leased premises.

If a tenant at will or for years, without a special license to do so, sells or otherwise removes manure made on such leased premises in the ordinary course of husbandry, consisting of (i) ashes leached or unleached; (ii) collections from the stables, barnyard, or cattle pens or other places on the leased premises; or (iii) composts formed by an admixture of any such manure with the soil or other substances, such removal shall be deemed waste for the purposes of the provisions of this article.

(Code 1919, § 5510; Code 1950, § 55-215; 2019, c. 712.)

Editor's note. - Acts 2019, c. 712, cl. 13 provides: "That the provisions of this act shall become effective on October 1, 2019."

Michie's Jurisprudence. - For related discussion, see 20 M.J. Waste, § 3.

§ 8.01-178.4. Waste committed during pendency of action.

If a defendant who is a tenant in possession of land in an action initiated pursuant to § 8.01-178.2 commits any waste on the land, the court may, on petition of the plaintiff alleging such waste, verified by oath, and after reasonable notice to the tenant, prohibit the tenant from committing further waste on the land during the pendency of the action. Violation of such order by the tenant after he has been served with a copy may be punished as contempt. The order shall not be effective until the plaintiff gives bond with sufficient surety as prescribed by the court, with condition to pay to the tenant, in case the plaintiff does not succeed in recovering or charging the land, such damages as may accrue to the tenant as a consequence of such order. If the plaintiff succeeds in recovering or charging the land, he may recover three times the amount of the damages assessed for such waste.

(Code 1919, § 5511; Code 1950, § 55-216; 2019, c. 712.)

Editor's note. - Acts 2019, c. 712, cl. 13 provides: "That the provisions of this act shall become effective on October 1, 2019."

Michie's Jurisprudence. - For related discussion, see 20 M.J. Waste, §§ 4, 8.

Article 16. Establishing Boundaries to Land.

§ 8.01-179. Motion for judgment to establish boundary lines.

Any person having a subsisting interest in real estate and a right to its possession, or to the possession of some share, interest or portion thereof, may file a motion for judgment to ascertain and designate the true boundary line or lines to such real estate as to one or more of the coterminous landowners. Plaintiff in stating his interest shall conform to the requirements of § 8.01-137 , and shall describe with reasonable certainty such real estate and the boundary line or lines thereof which he seeks to establish.

(Code 1950, § 8-836; 1954, c. 606; 1977, c. 617.)

Cross references. - As to what interest or right plaintiff must have to bring action of ejectment, see § 8.01-132 .

As to where action of ejectment must be brought, see § 8.01-261 .

For rules of court governing practice and procecure in civil actions, see Rules 3:1 through 3:25.

Law review. - For discussion of boundary proceedings, see 45 Va. L. Rev. 1455 (1959).

Michie's Jurisprudence. - For related discussion, see 3A M.J. Boundaries, §§ 28 - 30, 32, 42; 13A M.J. Motions for Judgment, § 2.

CASE NOTES

I. Decisions Under Current Law.
II. Nature of Action.
III. Comparable to Ejectment.
IV. Title of Plaintiff.
V. Parties.

I. DECISIONS UNDER CURRENT LAW.

Burden of proving common grantor. - Where the parties to a boundary-line proceeding purport to trace their title to a common grantor, the burden is upon the plaintiff to prove perfect legal title by showing an unbroken chain running back to the common source. Bulifant v. Slosjarik, 221 Va. 983 , 277 S.E.2d 151 (1981).

Effect of deed recorded years after execution. - In a boundary-line proceeding in which plaintiffs and defendant both claimed to trace their title to the disputed strip to a common grantor, there was evidence that the deed was recorded, but where the deed is recorded many years after its execution and no satisfactory explanation accounts for its whereabouts during the intervening period, no presumption of delivery arises from the mere fact of recordation; therefore, the plaintiffs failed to establish title to the disputed strip because they did not prove proper delivery of the deed. Bulifant v. Slosjarik, 221 Va. 983 , 277 S.E.2d 151 (1981).

Comparable to ejectment. - Where in a proceeding under the section to establish a boundary line the title and right of possession of the coterminous owners is brought into dispute by the pleadings, the same principles of law are applicable as would be applicable to the same subject in an action of ejectment. Bulifant v. Slosjarik, 221 Va. 983 , 277 S.E.2d 151 (1981).

II. NATURE OF ACTION.

Editor's note. - Some of the cases cited below were decided under corresponding provisions of former law. The terms "this statute" and "this section," as used below, refer to former provisions.

The proceeding to settle and determine boundaries under this section is an action for the recovery of property. Bradshaw v. Booth, 129 Va. 19 , 105 S.E. 555 (1921) (overruled in part by Howard v. Ball, 770 S.E.2d 476 (Va. 2015) (to the extent Bradshaw can be interpreted to allow a party to rely on adverse possession as an affirmative defense without expressly pleading it in an ejectment action or an action to establish boundary lines)).

A summary proceeding at law. - The remedy given by this section for ascertaining and determining "the boundary lines of real estate" is a summary proceeding at law, and not in equity. Wright v. Rabey, 117 Va. 884 , 86 S.E. 71 (1915).

Matters which may be settled. - In a proceeding under this section, the court will settle the line between plaintiff and defendants so far as their lands are coterminous, but the plaintiff cannot in such proceeding contest the rights of the defendants to the use of a river in which the plaintiff has no title, nor the title of defendants to land which in no way fixes the location of the line in question. James River Kanawha Power Co. v. Old Dominion Iron & Steel Corp., 138 Va. 461 , 122 S.E. 344 (1924).

Proceeding not incompatible with action for trespass. - Plaintiff's action to try the right of possession by means of its petition (now motion for judgment) under this section, is not incompatible with the concomitant action by it for the defendant's trespass. But plaintiff's claim to the right of possession, to the land in dispute, while related to a claim for damages for defendant's trespass upon the land, constitutes a distinct and independent subject of action. Brunswick Land Corp. v. Perkinson, 153 Va. 603 , 151 S.E. 138 (1930).

But proceeding did not toll statute of limitation against action of trespass. - Defendant, in an action for trespass, pleaded the statute of limitations. But plaintiff claimed that the statute of limitations had been tolled by a proceeding under this section instituted after the alleged trespass by the plaintiff in the instant case against defendant to determine the boundary between plaintiff and defendant and establish title to the land upon which the trespass was alleged to have been committed. It was held that the statute was not tolled. Brunswick Land Corp. v. Perkinson, 153 Va. 603 , 151 S.E. 138 (1930).

Proceeding not a substitute for partition. - The proceeding to determine boundaries under this section was not intended as a substitute for a suit for partition, nor does it afford the same relief. The former proceeding is governed by the same principles as obtained in an action of ejectment. The court has no jurisdiction therein to establish lines which have never been designated with proper certainty by the source of title of the plaintiff. Whereas that is precisely the relief which a suit for partition in kind affords to those who own several freeholds in the same land, which have never been divided in severalty with respect to the right of possession, by definite designation, in the source of title, of the dividing line or lines. Hodges v. Thornton, 138 Va. 112 , 120 S.E. 865 (1924).

But proceeding may determine dividing line under partition agreement. - In a proceeding under this section, if a partition deed from grantors to their cotenant did not include all the lands which, according to the agreed line, were the property of the cotenant and now belong to his successor in title, it was proper for the jury to so fix the dividing line as to give to the cotenant's successor in title the land which was the cotenant's under the terms of the partition agreement. Vanover v. Hollyfield, 151 Va. 287 , 144 S.E. 450 (1928).

Must designate boundaries in motion. - This section is a statutory remedy to have ascertained and designated the true boundary line or lines of coterminous landowners, and the plaintiff is required to designate with reasonable certainty in his motion the boundary line or lines which he seeks to establish. James River Kanawha Power Co. v. Old Dominion Iron & Steel Corp., 138 Va. 461 , 122 S.E. 344 (1924).

III. COMPARABLE TO EJECTMENT.

Proceeding as a substitute for action of ejectment. - This statute, which was presumably enacted with knowledge of the long established right of joinder in actions of ejectment, was intended, and has been used, as a frequently available and convenient substitute for ejectment. This is shown by the language of the statute, by its location in the Code of 1919 in the chapter on ejectment, and inferentially at least by the reported decisions. Fray v. Pollock, 7 Va. L. Reg. (n.s.) 95 (1921).

While the judgment of the court under this section may not in terms be a judgment rendered for land, yet in substance and effect it is for land to the same extent as in a judgment entered in an action of ejectment. Pickeral v. Federal Land Bank, 177 Va. 743 , 15 S.E.2d 82 (1941).

Same principles applicable. - Where in a proceeding under the section to establish a boundary line the title and right of possession of the coterminous owners is brought into dispute by the pleadings, the same principles of law are applicable as would be applicable to the same subject in an action of ejectment. Brunswick Land Corp. v. Perkinson, 146 Va. 695 , 132 S.E. 853 (1926). See Prettyman v. M.J. Duer & Co., 189 Va. 122 , 52 S.E.2d 156 (1949); Wade v. Ford, 193 Va. 279 , 68 S.E.2d 528 (1952); Allen v. Powers, 194 Va. 662 , 74 S.E.2d 688 (1953); Bull Run Dev. Corp. v. Jackson, 201 Va. 95 , 109 S.E.2d 400 (1959); Custis Fishing & Hunting Club, Inc. v. Johnson, 214 Va. 388 , 200 S.E.2d 542 (1973).

In a proceeding under this section, to determine boundaries, the same principles are inevitably involved as are involved on the same subject in actions of ejectment. Where the plaintiff to recover relies on title to land up to a certain location of its boundary on the ground, although the defendant may in general terms admit by the pleadings that the plaintiff has title to some land claimed by the latter, yet when the defendant denies that the plaintiff's title extends to such location, the plaintiff is inescapably put to his proof of such a title by evidence of title which the defendant cannot be heard to dispute. Such evidence must trace the title either from the Commonwealth or other common grantor. Bradshaw v. Booth, 129 Va. 19 , 105 S.E. 555 (1921) (overruled in part by Howard v. Ball, 770 S.E.2d 476 (Va. 2015) (to the extent Bradshaw can be interpreted to allow a party to rely on adverse possession as an affirmative defense without expressly pleading it in an ejectment action or an action to establish boundary lines)).

But section not coextensive with ejectment. - This section is not in every respect coextensive with the action of ejectment. The statute is coextensive with the action of ejectment only in cases of coterminous ownership, and, in such cases, only to the extent that the lands of the parties are shown to be coterminous. James River Kanawha Power Co. v. Old Dominion Iron & Steel Corp., 138 Va. 461 , 122 S.E. 344 (1924).

The proceeding to establish boundary lines under this section may be used as a substitute for the action of ejectment where there is a dispute between coterminous landowners over the true boundary line or lines, and much of the law relating to ejectment applies to this proceeding. Pickeral v. Federal Land Bank, 177 Va. 743 , 15 S.E.2d 82 (1941).

Distinguished from ejectment. - An important distinction exists between a proceeding to establish a boundary line and an action of ejectment, in that an action of ejectment will not lie when the plaintiff is in possession, whereas a proceeding to establish a boundary line may be brought whether the plaintiff is in possession or not. They are, therefore, not coextensive in that respect. Brunswick Land Corp. v. Perkinson, 146 Va. 695 , 132 S.E. 853 (1926).

No intent to grant advantage. - There is little or no difference except as to procedure between an action in ejectment and a proceeding under this section, and there is nothing in this section which would suggest that the legislature intended to give parties litigating their rights under the statute any advantage over parties who had proceeded by ejectment. Choate v. Calhoun, 153 Va. 52 , 149 S.E. 470 (1929).

An equitable estoppel cannot be pleaded or proven in ejectment or in an action under this section. Allen v. Powers, 194 Va. 662 , 74 S.E.2d 688 (1953).

IV. TITLE OF PLAINTIFF.

Fee owner entitled to proceed under section. - The title of the plaintiff being a fee, and the controversy being with the owners of "coterminous real estate" as to the true location of boundary lines between the plaintiff and the defendants, the plaintiff had the right to proceed under this section and was not driven to an action of ejectment. Christian v. Bulbeck, 120 Va. 74 , 90 S.E. 661 (1916).

Plaintiff must recover on the strength of his own title. - In a proceeding under this section to determine the boundary line or lines between certain coterminous land of the parties, as well as in ejectment, a plaintiff who cannot rely on actual possession, must recover, if at all, upon the strength of his own title. Griggs v. Brown, 126 Va. 556 , 102 S.E. 212 (1920). See also, Christian v. Bulbeck, 120 Va. 74 , 90 S.E. 661 (1916).

As a general rule a plaintiff must recover on the strength of his own title, and, when he relies solely on his own paper title, must trace it either from the Commonwealth or other common grantor, but it is well settled that he is not required to do this when he shows such a state of facts as will warrant the jury in presuming a grant. Brunswick Land Corp. v. Perkinson, 146 Va. 695 , 132 S.E. 853 (1926); Prettyman v. M.J. Duer & Co., 189 Va. 122 , 52 S.E.2d 156 (1949); Bull Run Dev. Corp. v. Jackson, 201 Va. 95 , 109 S.E.2d 400 (1959).

As a general rule, in an action in ejectment as well as in a proceeding under this section to establish a boundary line of coterminous lands, in order for a plaintiff to prevail he must do so on the strength of his own title, and when he relies on his own paper title he must trace an unbroken chain of title back to the Commonwealth or to a common grantor or prove such a state of facts as will warrant the presumption of a grant. Page v. Luhring, 208 Va. 643 , 159 S.E.2d 642 (1968).

Plaintiff said that his prior peaceful possession of the disputed land under color of title constituted prima facie evidence of ownership and seisin sufficient to warrant a judgment of ownership unless defendant showed a better title, which he had not done. The principle relied on is a recognized exception to the general rule that a plaintiff must win on the strength of his own title. However the exception is restricted to those situations where the defendant is an intruder or trespasser without color of title. Page v. Luhring, 208 Va. 643 , 159 S.E.2d 642 (1968).

Generally, a plaintiff must prevail, if at all, on the strength of his own title. Custis Fishing & Hunting Club, Inc. v. Johnson, 214 Va. 388 , 200 S.E.2d 542 (1973).

How title proved. - In order for plaintiff to prevail in a proceeding under this section he must prove (1) that he has a perfect legal title to the land in dispute by showing an unbroken chain of title either to the Commonwealth or to a common grantor; or (2) that he has title to the land by adverse possession; or (3) such a state of facts as will warrant the court in presuming a grant. Bull Run Dev. Corp. v. Jackson, 201 Va. 95 , 109 S.E.2d 400 (1959).

Plaintiffs bear burden of proof. - In boundary proceedings, those who initiate the proceedings bear the burden of proof by a preponderance of the evidence. When plaintiffs in such proceedings fail to prove paper title or title by adverse possession, they must bear that burden by proving a state of facts that will warrant the court in presuming a grant. Ferris v. Snellings, 213 Va. 452 , 192 S.E.2d 804 (1972).

Having initiated the proceedings, plaintiffs had the burden of establishing the boundaries of their property by a preponderance of the evidence. Central Nat'l Bank v. Florence, 215 Va. 463 , 211 S.E.2d 564 (1975).

If the plaintiff is unable to trace his title from the Commonwealth or other common grantor, he has the burden of proving facts that will warrant a jury in presuming a grant. Custis Fishing & Hunting Club, Inc. v. Johnson, 214 Va. 388 , 200 S.E.2d 542 (1973).

Parol evidence not an independent source of title. - The extent of boundaries of land, and thus the title to land, cannot be established wholly by parol evidence, unsupported by written evidence of title, where title by adverse possession is not involved and where the case is one in which the title claimed is by deed and must have been derived by deed, if derived at all; for to hold otherwise would be to permit parol evidence to become an independent source of title, which is not permissible. Ferris v. Snellings, 213 Va. 452 , 192 S.E.2d 804 (1972).

Deed must specifically define boundaries. - If plaintiffs claim title by deed, their deed must specifically define the boundaries of their claim. Ferris v. Snellings, 213 Va. 452 , 192 S.E.2d 804 (1972); Central Nat'l Bank v. Florence, 215 Va. 463 , 211 S.E.2d 564 (1975).

Effect of prior possession. - When plaintiff has never had actual or constructive possession of any part of the land in controversy in a proceeding under this section to determine boundaries, he must show a complete legal title to the premises in order to recover. If plaintiff had had a prior possession to that of the defendant and the possession of the latter had been obtained by intrusion and trespass without color of title, such prior possession would have raised a presumption of title in the plaintiff which would have been sufficient to show a complete legal title to the premises in him. Bradshaw v. Booth, 129 Va. 19 , 105 S.E. 555 (1921) (overruled in part by Howard v. Ball, 770 S.E.2d 476 (Va. 2015) (to the extent Bradshaw can be interpreted to allow a party to rely on adverse possession as an affirmative defense without expressly pleading it in an ejectment action or an action to establish boundary lines)).

The principle that possession under color of title constitutes a prima facie title is under the great weight of authority restricted to those factual situations where the defendant is a mere intruder or trespasser without color of title. Bull Run Dev. Corp. v. Jackson, 201 Va. 95 , 109 S.E.2d 400 (1959).

An exception to the rule that, generally, a plaintiff must prevail, if at all, on the strength of his own title permits the plaintiff to establish a prima facie case of ownership by showing that he has taken prior peaceful possession under color of title, but this exception is limited to cases in which the defendant is a mere intruder or trespasser without color of title. Custis Fishing & Hunting Club, Inc. v. Johnson, 214 Va. 388 , 200 S.E.2d 542 (1973).

Possession necessary to afford presumption of grant. - Courts will presume a grant where one has for a long period of time held an uninterrupted possession of land while exercising proprietary rights. The possession necessary to afford a presumption of a grant must be actual, open, adverse, exclusive and uninterrupted, as well as inconsistent with the existence of title in another. Ferris v. Snellings, 213 Va. 452 , 192 S.E.2d 804 (1972).

Plaintiff's presumption of grant theory failed where the defendants were not mere intruders or trespassers, but owners of property adjoining the mill pond, who had acquired a colorable claim, asserted in their grounds of defense, to riparian interests extending to the center of the pond. Custis Fishing & Hunting Club, Inc. v. Johnson, 214 Va. 388 , 200 S.E.2d 542 (1973).

In the absence of express exclusion by deed or contract, an owner adjoining a fresh water pond acquires whatever interest in the pond his grantor had, regardless of the use of descriptive boundary terms such as "along" or "with" the pond. Custis Fishing & Hunting Club, Inc. v. Johnson, 214 Va. 388 , 200 S.E.2d 542 (1973).

V. PARTIES.

Relation of parties as owners of mineral and surface rights is not that of coterminous landowners and hence the remedy for settling disputed boundary lines, provided in this section, is not available to either side. Buchanan Coal Co. v. Street, 175 Va. 531 , 9 S.E.2d 339 (1940).

CIRCUIT COURT OPINIONS

Determination as to common boundary. - Circuit court found that the greater weight of the evidence established that an existing 24-foot white oak tree located southwest of the roadway marked the common boundary based on the age of the tree and the fact that the radial inverse lines to the northwest corner of the property supported the use of this tree rather than a smaller tree that was once six inches in diameter; further, the court found that it was unlikely that the surveyors would have used such a small tree when there was a larger tree in close proximity. Denton v. Abbitt, 66 Va. Cir. 54, 2004 Va. Cir. LEXIS 249 (Amherst County 2004).

Adverse possession not proved. - Where a doctor's limited and sporadic activities on the disputed property north of a fence, which included planting grass on one occasion, occasionally walking dogs on the property, planting trees, sometimes descenting skunks and burying animals on the property, and occasionally cutting the grass and underbrush, did not constitute actual, hostile, exclusive, visible, and continuous use of the property for 15 years, a commissioner's report was confirmed in its entirety. Russrand Triangle Assocs., L.L.C. v. Morgan, 64 Va. Cir. 241, 2004 Va. Cir. LEXIS 59 (Chesapeake 2004).

§ 8.01-180. Parties defendant; pleadings.

The plaintiff shall make defendants to such motion for judgment all persons having a present interest in the boundary line or lines sought to be ascertained and designated.

(Code 1950, § 8-837; 1954, c. 606; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 3A M.J. Boundaries, §§ 28, 29.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

Adverse possession may be set up as a defense to a petition (now motion for judgment) under this section.See also Christian v. Bulbeck, 120 Va. 74 , 90 S.E. 661 (1916); Bradshaw v. Booth, 129 Va. 19 , 105 S.E. 555 (1921) (overruled in part by Howard v. Ball, 770 S.E.2d 476 (Va. 2015) (to the extent Bradshaw can be interpreted to allow a party to rely on adverse possession as an affirmative defense without expressly pleading it in an ejectment action or an action to establish boundary lines)).

The burden of establishing adverse possession is upon the defendant. Westland Realty Corp. v. Griffin, 151 Va. 1005 , 145 S.E. 718 (1928).

Plaintiff's acquiescence in defendant's survey did not work estoppel. - The mere acquiescence of plaintiff in a survey by defendant of the land in controversy in a proceeding under this section, to determine boundaries, at the time of the purchase of the real estate by defendant, does not estop plaintiff from afterwards asserting an adverse claim of title inconsistent with the validity of the survey in the accuracy of which he had acquiesced. Such mere acquiescence alone will not work an estoppel. In order to do so the acquiescence must have influenced the subsequent conduct of the defendant to his prejudice. Bradshaw v. Booth, 129 Va. 19 , 105 S.E. 555 (1921) (overruled in part by Howard v. Ball, 770 S.E.2d 476 (Va. 2015) (to the extent Bradshaw can be interpreted to allow a party to rely on adverse possession as an affirmative defense without expressly pleading it in an ejectment action or an action to establish boundary lines)).

Defendant receives no benefit from compromise not accepted. - Where a defendant in a proceeding to ascertain a boundary between him and the plaintiff has refused to accept an offer of a compromise line made in the petition (now motion for judgment), and has denied the right of the plaintiff to the line both in his pleadings and proof, he has no right to claim any benefit from such offer. Hamman v. Miller, 116 Va. 873 , 83 S.E. 382 (1914).

§ 8.01-181. Surveys.

The court may appoint a surveyor and direct such surveys to be made as it deems necessary, and the costs thereof shall be assessed as the court may direct.

(Code 1950, § 8-838; 1954, c. 606; 1977, c. 617.)

REVISERS' NOTE.

Provisions regarding trial in former § 8-838 were deleted as unnecessary. Added is the provision that the court may assess the cost of any survey ordered.

Former § 8-841 (Writ of error to judgment) was deleted as unnecessary.

________

Michie's Jurisprudence. - For related discussion, see 3A M.J. Boundaries, § 32.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

CASE NOTES

Statutory duty as to surveys. - The provisions of this section are not intended to prevent the court of its own motion from ordering such survey or surveys as it might deem necessary to give effect to its judgment as to what constitutes the boundary between the parties by locating and marking the line on the ground. It is not only the right, but the duty, of the court to have such survey or surveys made whenever deemed proper. This holding is made statutory by the present form of the section. Hamman v. Miller, 116 Va. 873 , 83 S.E. 382 (1914).

A private survey is admissible as evidence of a boundary line between those who are parties to it or who claim under it, but it is not admissible as independent evidence against others. Robinson v. Peterson, 200 Va. 186 , 104 S.E.2d 788 (1958).

Opinion testimony of surveyor of no probative value. - The testimony of the surveyor in a boundary line case giving his opinion about the lines is of no probative value. Hargrove v. Harris, 167 Va. 320 , 189 S.E. 307 (1937). See also, Griggs v. Brown, 126 Va. 556 , 102 S.E. 212 (1920).

§ 8.01-182. Claims to rents, etc., not considered.

In a proceeding under this article, no claim of the plaintiff for rents, profits or damages shall be considered.

(Code 1950, § 8-839; 1977, c. 617.)

§ 8.01-183. Recordation and effect of judgment.

The judgment of the court shall be recorded in the current deed book of the court. The judgment shall forever settle, determine, and designate the true boundary line or lines in question, between the parties, their heirs, devisees, and assigns. The judgment may be enforced in the same manner as a judgment in an action of ejectment.

(Code 1950, § 8-840; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 3A M.J. Boundaries, § 51; 6B M.J. Ejectment, § 2.

CASE NOTES

Holding did not purport to, and could not, affect the rights of persons who were not parties or their successors in interest. Page v. Luhring, 211 Va. 503 , 178 S.E.2d 527 (1971) (decided under prior law).

Article 17. Declaratory Judgments.

§ 8.01-184. Power to issue declaratory judgments.

In cases of actual controversy, circuit courts within the scope of their respective jurisdictions shall have power to make binding adjudications of right, whether or not consequential relief is, or at the time could be, claimed and no action or proceeding shall be open to objection on the ground that a judgment order or decree merely declaratory of right is prayed for. Controversies involving the interpretation of deeds, wills, and other instruments of writing, statutes, municipal ordinances and other governmental regulations, may be so determined, and this enumeration does not exclude other instances of actual antagonistic assertion and denial of right.

(Code 1950, § 8-578; 1977, c. 617.)

Cross references. - For method of securing construction of act requiring payment of money out of state treasury, see § 8.01-653 .

Law review. - For comment on challenging rezoning in Virginia, see 15 U. Rich. L. Rev. 423 (1981).

For note, "Desuetude and Declaratory Judgment: A New Challenge to Obsolete Laws," see 76 Va. L. Rev. 1057 (1990).

For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

For 2007 annual survey article, "Civil Practice and Procedure," see 42 U. Rich. L. Rev. 229 (2007).

For article, "Medical Malpractice Law," see 45 U. Rich. L. Rev. 319 (2010).

For annual survey of Virginia law article, "Local Government Law," see 47 U. Rich. L. Rev. 257 (2012).

For Survey article, "Civil Practice and Procedure," see 48 U. Rich. L. Rev. 1 (2013).

Michie's Jurisprudence. - For related discussion, see 11A M.J. Judgments and Decrees, §§ 218, 219.

CASE NOTES

I. Decisions Under Current Law.
- A. General Consideration.
- B. Actual Controversy.
II. Decisions Under Prior Law.
- A. General Consideration.
- B. Actual Controversy.

I. DECISIONS UNDER CURRENT LAW.

A. GENERAL CONSIDERATION.

This section and § 8.01-191 are to be liberally interpreted and administered with a view to making the courts more serviceable to the people. Board of Supvrs. v. Southland Corp., 224 Va. 514 , 297 S.E.2d 718 (1982).

The controversy must be one that is justiciable, that is, where specific adverse claims, based upon present rather than future or speculative facts, are ripe for judicial adjustment. Reisen v. Aetna Life & Cas. Co., 225 Va. 327 , 302 S.E.2d 529 (1983).

When a state provides an adequate procedure for obtaining just compensation, a property owner cannot claim a violation of the federal provision until it has used the state procedure and been denied just compensation. Pasquotank Action Council, Inc. v. City of Va. Beach, 909 F. Supp. 376 (E.D. Va. 1995).

Standing generally. - A plaintiff has standing to bring a declaratory judgment proceeding if he has "a justiciable interest" in the subject matter of the litigation, either in his own right or in a representative capacity. Cupp v. Board of Supvrs., 227 Va. 580 , 318 S.E.2d 407 (1984).

Pleadings filed by the second of two landowners failed to assert a valid request for declaratory relief because, among other reasons, the pleadings did not seek preventive relief, but effectively attempted to create a right of appeal that did not exist by statute; moreover, as a third party, the landowner lacked a right of appeal from the board's determination. Miller v. Highland County, 274 Va. 355 , 650 S.E.2d 532, 2007 Va. LEXIS 119 (2007).

A justiciable controversy involves specific adverse claims based on present facts that are ripe for adjudication. Mosher Steel-Virginia v. Teig, 229 Va. 95 , 327 S.E.2d 87 (1985).

A hypothetical or abstract interest is insufficient to confer standing to bring a declaratory judgment action. Mosher Steel-Virginia v. Teig, 229 Va. 95 , 327 S.E.2d 87 (1985).

Where there is no administrative remedy equal to the relief sought, a complainant in a declaratory judgment proceeding, having no adequate legal remedy by judicial review, properly states a justiciable cause of action. Mosher Steel-Virginia v. Teig, 229 Va. 95 , 327 S.E.2d 87 (1985).

Other remedies available. - Trial court did not have jurisdiction to issue a declaratory judgment under the Virginia Declaratory Judgment Act, § 8.01-184 et seq., since a mother had other remedies available to her in continuing to defend a same sex partner's litigation seeking to register and enforce the Vermont custody orders; for the same reason, the mother could not obtain injunctive relief. Miller v. Jenkins, 54 Va. App. 282, 678 S.E.2d 268, 2009 Va. App. LEXIS 291 (2009).

The binding adjudications of right made under this section must resolve issues specifically pled in the petition for declaratory judgment, and the court is not empowered to make binding adjudications of right which are not specifically pled. Scottsdale Ins. Co. v. Glick, 240 Va. 283, 397 S.E.2d 105 (1990).

Private rights of action. - Circuit court properly dismissed the estates' declaratory judgment complaints seeking to assert a private right of action against two nursing homes for the production of documents because the estates' claims could not be enforced where the governing statutes did not authorize a private right of action and the estates could not use the Declaratory Judgment Act as a platform for asserting non-existent private rights of action to enforce an administrative regulation promulgated by the Board of Health. Cherrie v. Va. Health Servs., 292 Va. 309 , 787 S.E.2d 855, 2016 Va. LEXIS 106 (2016).

Controversy held ripe for adjudication. - A justiciable controversy ripe for adjudication exists where plaintiff has brought an action for damages resulting from personal injuries and defendant's insurer seeks a declaratory judgment as to obligation to pay if defendant is subsequently found liable for plaintiff's injuries and the circumstances give rise to a real probability that the insurer owed no coverage to the defendant. Reisen v. Aetna Life & Cas. Co., 225 Va. 327 , 302 S.E.2d 529 (1983).

Trial court properly determined that the objecting lot owners could bring a declaratory judgment action against the one lot owner who was interested in building a commercial office building on lots in their subdivision even though a restrictive covenant applicable to the lots required that the lots only be used for residential purposes, as an actual case or controversy existed because the evidence showed the one lot owner was ready to go ahead with his plans and the objecting lot owners did not want him to do so. River Heights Assocs. v. Batten, 267 Va. 262 , 591 S.E.2d 683, 2004 Va. LEXIS 15 (2004).

Standing of owner of options to buy land subject to zoning. - Where a developer owned options to buy real estate that was subject to piecemeal downzoning by the local government, the developer had standing to bring a declaratory judgment proceeding since it had a justiciable interest in the subject matter of the litigation and, further, the developer's interest by virtue of the options was not hypothetical or abstract because, as an optionee, it had an exclusive, irrevocable, binding contractual right to purchase the real estate according to the terms of the several option agreements. Board of Supvrs. v. Fralin & Waldron, Inc., 222 Va. 218 , 278 S.E.2d 859 (1981).

Unauthorized practice of law by title insurance company. - Whether a title insurance company is engaging in the unauthorized practice of law by its participation in real estate closings may be resolved by declaratory judgment. Blodinger v. Broker's Title, Inc., 224 Va. 201 , 294 S.E.2d 876 (1982).

The fact that unauthorized practice of law is a misdemeanor does not preclude declaratory relief to attorneys who sought determination as to whether a title insurance company's activities constituted the unauthorized practice of law, where their goal was not solely to stop the illegal conduct of others, but to ensure that their own conduct conformed to the law and the tenets of the legal profession. Blodinger v. Broker's Title, Inc., 224 Va. 201 , 294 S.E.2d 876 (1982).

Trial court incorrectly held that declaratory judgment was not available to construe provision of written lease to determine whether continued occupancy of certain premises would subject lessee to liability for continuing damages, and his employees and customers to criminal liability for trespass; lessee was entitled to declaratory judgment action given unavailability of any remedy by customary processes and liberal construction of § 8.01-191 . Hop-In Food Stores, Inc. v. Serv-N-Save, Inc., 237 Va. 206 , 375 S.E.2d 753 (1989).

Court not to render advisory opinions. - Enactment of the declaratory judgment statutes did not vest the courts with authority to render advisory opinions, decide moot questions, or answer merely speculative inquiries. Reisen v. Aetna Life & Cas. Co., 225 Va. 327 , 302 S.E.2d 529 (1983).

Declarations concerning insurance coverage. - In a declaratory judgment action pursuant to § 8.01-184 , the trial court properly determined that an insurance company was required to provide coverage to a subcontractor; the insurance company failed to satisfy the standard set out in § 38.2-309 , because an insurance agent had apparent authority to bind the company, and the agent did not rely on alleged misrepresentations in an application in deciding to bind coverage. Montgomery Mut. Ins. Co. v. Riddle, 266 Va. 539 , 587 S.E.2d 513, 2003 Va. LEXIS 104 (2003).

Trial court properly entered a declaratory judgment holding that an insurer was not liable on a policy written for an employer and ordering that the employer return the funds the insurer contributed to settle an employee's underlying tort claim as the policy excluded claims "arising out of and in the course of employment"; the employee was injured while riding in a truck owned by the employer that was involved in an accident on the way to a worksite. Asplundh Tree Expert Co. v. Pac. Emplrs. Ins. Co., 269 Va. 399 , 611 S.E.2d 531, 2005 Va. LEXIS 41 (2005).

Trial court had subject matter jurisdiction under § 8.01-184 over a declaratory judgment action filed by an insurer, even though the insurer contributed funds toward the settlement of an underlying tort claim filed by an employee against an employer, where the funds were contributed under a reservation of rights to contest the coverage in the declaratory judgment action. Asplundh Tree Expert Co. v. Pac. Emplrs. Ins. Co., 269 Va. 399 , 611 S.E.2d 531, 2005 Va. LEXIS 41 (2005).

Circuit court's authority. - Under the declaratory judgment act, circuit courts have the authority to make binding adjudications of right in cases of actual controversy when there is antagonistic assertion and denial of right. Hoffman Family, L.L.C. v. Mill Two Assocs. Pshp., 259 Va. 685 , 529 S.E.2d 318, 2000 Va. LEXIS 72 (2000).

Circuit court's discretion. - The authority to enter a declaratory judgment is discretionary and must be exercised with great care and caution. Hoffman Family, L.L.C. v. Mill Two Assocs. Pshp., 259 Va. 685 , 529 S.E.2d 318, 2000 Va. LEXIS 72 (2000).

Removal. - Plaintiff's declaratory judgment action originally filed in state court under § 8.01-184 and then removed to federal court by defendant insurance companies was remanded to state court because interpreting the scope of any under-insured motorist coverage and determining what effect it should be given as to the driver of a rental car under state contract and insurance law involved issues that were especially important to a state and particularly appropriate for state court adjudication. Chapman v. Clarendon Nat'l Ins. Co., 299 F. Supp. 2d 559, 2004 U.S. Dist. LEXIS 253 (E.D. Va. 2004).

Appellate jurisdiction in child custody cases. - Appellate court had jurisdiction over an appeal under § 17.1-405 , even though the case was brought under the Virginia Declaratory Judgment Act, § 8.01-184 et seq., because the underlying cause was a custody dispute. Miller v. Jenkins, 54 Va. App. 282, 678 S.E.2d 268, 2009 Va. App. LEXIS 291 (2009).

Circuit court did not err in dismissing a mother's petition against a father and an adoptee for determination of paternity pursuant to § 20-49.2 and declaratory relief pursuant to the Declaratory Judgment Act, § 8.01-184 , because the mother's action was barred by res judicata; a juvenile and domestic relations had entered an order granting joint custody of a child to the adoptee and the mother, and the mother was precluded by res judicata from seeking a difference in outcome or restoration of the place that she was before the custody order; because the mother did not seek to modify the custody order under § 20-108 but rather sought to relitigate the custody decision, her action was barred by res judicata. Morgan v. Kifus, No. 0399-10-4, 2011 Va. App. LEXIS 126 (Ct. of Appeals Apr. 12, 2011).

Applied in Adams v. Board of Supvrs., 569 F. Supp. 20 (W.D. Va. 1983); Callison v. Glick, 297 Va. 275 , 826 S.E.2d 310, 2019 Va. LEXIS 37 (2019).

B. ACTUAL CONTROVERSY.

Legality of an ordinance is tested not only by what has been done under its provisions but what may be done thereunder. Although the board of supervisors had not yet imposed the restrictions and conditions on the plaintiffs, it claimed it had the power to do so and this claim of power threatened the plaintiffs. Thus, a controversy, within the contemplation of the Declaratory Judgment Act, existed. Cupp v. Board of Supvrs., 227 Va. 580 , 318 S.E.2d 407 (1984).

Construction of covenant restricting development of property. - It is not always required that a party establish a vested right, in the form of governmental approval to proceed with development, before obtaining a declaratory judgment on the issue of whether some private right would bar that development. While in some cases the proposed development would be so speculative and indefinite as to not rise to the level of a justiciable controversy, where the developer has taken substantial steps, with significant financial expense, in developing specific plans for the development and where, without a determination as to the effect of a covenant affecting the property, the developer would be required to expend additional sums without relief from the uncertainty and insecurity attendant upon the continuing controversy of its legal rights with regard to the covenant, a justiciable controversy exists. Hoffman Family, L.L.C. v. Mill Two Assocs. Pshp., 259 Va. 685 , 529 S.E.2d 318, 2000 Va. LEXIS 72 (2000).

Construction of will. - Trial court properly sustained an executor's demurrer to a son's complaint, seeking a declaratory judgment with respect to the interpretation of the will of the son's father. Since the son alleged in his complaint that the attorney who drafted his father's will had not qualified as the executor of his father's will, as required by § 64.1-136 [now see § 64.2-511 ], the son failed to plead the existence of an actual controversy pursuant to § 8.01-184 . Bell v. Saunders, 278 Va. 49 , 677 S.E.2d 39 (2009).

Trial court erred in sustaining an executor's demurrer to a wife's complaint, seeking a declaratory judgment with respect to the interpretation of the will of a testator. Since the wife pled in the complaint that the executor had refused to pay her income from a trust estate to which she was entitled, she had pled a justiciable controversy that included specific adverse claims based on present facts that were ripe for adjudication pursuant to § 8.01-184 . Bell v. Saunders, 278 Va. 49 , 677 S.E.2d 39 (2009).

Employer may challenge, in declaratory judgment proceeding the constitutionality of warrant authorizing inspection of the employer's manufacturing facility to determine whether the facility is being operated in compliance with the occupational safety and health laws ( § 40.1-1 et seq.). Mosher Steel-Virginia v. Teig, 229 Va. 95 , 327 S.E.2d 87 (1985).

No justiciable controversy existed where parties not named as defendants. - In an action for declaratory judgment by a motorist against her automobile insurer and the automobile insurer for owner of another automobile involved in an accident, no justiciable controversy existed because the motorist did not name the owner and driver of the other automobile as defendants. Erie Ins. Group v. Hughes, 240 Va. 165 , 393 S.E.2d 210 (1990).

Actual controversy. - Former wife's suit against her former husband seeking a determination of her rights and obligations under the terms of a settlement agreement executed in a divorce action presented an actual controversy under the Virginia Declaratory Judgment Statute. Trimble v. Trimble,, 2010 Va. App. LEXIS 161 (Apr. 27, 2010).

Where homeowners' declaratory judgment claims sought to void a foreclosure and declare that no defendant financial institution or loan servicer had any right, title, or interest in the note, but they admitted default and any wrong suffered had already occurred, declaratory relief was inappropriate under either 28 U.S.C.S. § 2201 or § 8.01-184 ; declaratory judgments were designed to declare rights so that parties could conform their conduct to avoid future litigation, and were untimely if the questionable conduct had already occurred or damages had already accrued. Tapia v. United States Bank, N.A., 718 F. Supp. 2d 689, 2010 U.S. Dist. LEXIS 62448 (E.D. Va. 2010).

Declaratory judgment claim asserted by plaintiff concerning whether a certain card game was illegal gambling, as defined in § 18.2-325 , did not present a justiciable controversy, and the circuit court did not have authority under the declaratory judgment statute, § 8.01-184 , to exercise jurisdiction concerning such claim. Daniels v. Mobley, 285 Va. 402 , 737 S.E.2d 895, 2013 Va. LEXIS 27 (2013).

Claim not justiciable. - In a declaratory judgment action, fitness clubs' claim that government payment to an organization violated § 15.2-953 was not justiciable, as § 15.2-953 did not provide a right of action to a third party to challenge a locality's appropriation thereunder, and any declaratory judgment could not bind the organization because it was not a party to the action. Charlottesville Area Fitness Club Operators Ass'n v. Albemarle County Bd. of Supervisors, 285 Va. 87 , 737 S.E.2d 1, 2013 Va. LEXIS 5 (2013).

Fitness clubs' declaratory judgment action, which attempted to void a lease between a city council and a nonprofit organization, did not state a justiciable controversy because the clubs were attempting to use the declaratory judgment statute to create rights they did not otherwise have. Charlottesville Area Fitness Club Operators Ass'n v. Albemarle County Bd. of Supervisors, 285 Va. 87 , 737 S.E.2d 1, 2013 Va. LEXIS 5 (2013).

Where fitness clubs filed declaratory judgment actions challenging payments made and public contracts awarded to a nonprofit organization, none of their claims stated a justiciable controversy because the organization was not a party to the action, and, therefore, any opinion would be merely advisory. Charlottesville Area Fitness Club Operators Ass'n v. Albemarle County Bd. of Supervisors, 285 Va. 87 , 737 S.E.2d 1, 2013 Va. LEXIS 5 (2013).

Justiciable interest must be present. - Neighbors did not claim ownership of any portion of the alley other than that portion abutting their own property, which was adjudicated by the circuit court, and with respect to the portion of the alley not abutting the neighbors' property, the landowner's pleadings did not allege facts evidencing a specific claim between parties with trust interest to oppose the landowner's claim to ownership of the alley; the circuit court did not err in dismissing the landowner's claim seeking a declaration of ownership as to the remaining length of the alley. Martin v. Garner, 286 Va. 76 , 745 S.E.2d 419, 2013 Va. LEXIS 78 (2013).

Declaratory judgment proceeding may not be maintained against a party with whom there is no controversy in order to resolve a controversy existing with one not a party to the proceeding. Treacy v. Smithfield Foods, Inc., 256 Va. 97 , 500 S.E.2d 503 (1998).

Declaratory judgment inappropriate where disputed issue could be determined in future litigation. - Declaratory judgment was inappropriate in case of worker injured by actions of co-worker, because case did not involve a determination of rights but only a disputed issue to be determined in future litigation between the parties, namely, whether the injuries arose out of and in the course of the injured worker's employment. USAA Cas. Ins. Co. v. Randolph, 255 Va. 342 , 497 S.E.2d 744 (1998).

Circuit court abused its discretion in allowing a case to proceed as a declaratory judgment action after an insurance adjusting company nonsuited its other claims against homeowners. The declaratory relief requested was a determination of a disputed issue rather than an adjudication of the parties' rights; although the company asserted that it was seeking a determination of its rights vis-a-vis the homeowners with regard to insurance proceeds, the company was actually asking the circuit court to decide whether the homeowners had breached the contract between them and the company. Green v. Goodman-Gable-Gould Co., 268 Va. 102 , 597 S.E.2d 77, 2004 Va. LEXIS 95 (2004).

Challenge to public contract. - As fitness clubs attempted to challenge governmental action in a manner not authorized by statute, and to create rights through the declaratory judgment statute, § 8.01-184 , that they did not have under the Virginia Public Procurement Act, § 2.2-4300 et seq., they failed to allege a justiciable controversy subject to resolution through a declaratory judgment proceeding. Charlottesville Area Fitness Club Operators Ass'n v. Albemarle County Bd. of Supervisors, 285 Va. 87 , 737 S.E.2d 1, 2013 Va. LEXIS 5 (2013).

Standing. - Trial court did not err in applying the "aggrieved person" standard in evaluating an environmental association and individual complainants' standing to appeal a decision of a county board of supervisors, as any distinction between an "aggrieved party" and a "justiciable interest" was a distinction without a difference in declaratory judgment actions challenging land use decisions. Friends of the Rappahannock v. Caroline County Bd. of Supervisors, 286 Va. 38 , 743 S.E.2d 132, 2013 Va. LEXIS 72 (2013).

Strangers to plat approval process. - Landowners could not seek a declaratory judgment under § 8.01-184 to challenge approval of part of a plat of a subdivision pursuant to the city's Subdivision Ordinance. The landowners did not have any rights at stake, as they were strangers to the plat approval process. Logan v. City Council, 275 Va. 483 , 659 S.E.2d 296, 2008 Va. LEXIS 52 (2008).

Members lacked standing. - Members had no standing to bring a declaratory judgment suit challenging a property development because, inter alia, no language in Hampton, Va., Charter §§ 3A-10 and 3A-11 provided or suggested a continuing role for a "committee of petitioners" beyond the petition process; when the city council agreed to repeal the ordinance, which negated the necessity of presenting the petition for repeal to the trial court, the committee's authority to act ended and the committee had no ongoing justiciable right or interest that was aggrieved by the development property. Deerfield v. City of Hampton, 283 Va. 759 , 724 S.E.2d 724, 2012 Va. LEXIS 91 (2012).

II. DECISIONS UNDER PRIOR LAW.

A. GENERAL CONSIDERATION.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The terms "this article" and "this section," as used below, refer to former provisions.

Constitutionality. - The declaratory judgments law, as embraced in this chapter, is constitutional. Patterson v. Patterson, 144 Va. 113 , 131 S.E. 217 (1926); Carr v. Union Church, 186 Va. 411 , 42 S.E.2d 840 (1947).

Declaratory judgments are creatures of statutes. D.D. Jones Transf. & Whse. Co. v. Commonwealth ex rel. SCC, 174 Va. 184 , 5 S.E.2d 628 (1939).

An action for declaratory judgment is statutory. Sood v. Advanced Computer Techniques Corp., 308 F. Supp. 239 (E.D. Va. 1969).

The Supreme Court has no original jurisdiction of a proceeding for a declaratory judgment. D.D. Jones Transf. & Whse. Co. v. Commonwealth ex rel. SCC, 174 Va. 184 , 5 S.E.2d 628 (1939); Portsmouth Restaurant Ass'n v. Hotel & Restaurant Employees Alliance, Local 807, 183 Va. 757 , 33 S.E.2d 218 (1945).

Purpose of the declaratory judgment act is to afford relief from the uncertainty and insecurity attendant upon controversies over legal rights, without requiring one of the parties interested so to invade the rights asserted by the other as to entitle him to maintain an ordinary action therefor. Criterion Ins. Co. v. Grange Mut. Cas. Co., 210 Va. 446 , 171 S.E.2d 669 (1970).

The intent of the declaratory judgment statutes is not to give parties greater rights than those which they previously possessed, but to permit the declaration of those rights before they mature. In other words, the intent of the act is to have courts render declaratory judgments which may guide parties in their future conduct in relation to each other, thereby relieving them from the risk of taking undirected action incident to their rights, which action, without direction, would jeopardize their interests. This is with a view rather to avoid litigation than in aid of it. Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414 , 177 S.E.2d 519 (1970).

Preventive relief is moving purpose. - The act does not require one to wait until a right has been violated to seek judicial relief. Preventive relief is the moving purpose. Portsmouth Restaurant Ass'n v. Hotel & Restaurant Employees Alliance, Local 807, 183 Va. 757 , 33 S.E.2d 218 (1945).

Declaratory judgments are intended to supplement rather than to supersede ordinary causes of action and to relieve litigants of the common-law rule that no declaration of rights may be judicially adjudged until a right has been violated. American Nat'l Bank & Trust Co. v. Kushner, 162 Va. 378 , 174 S.E. 777 (1934).

Declaratory judgments are intended to supplement rather than to supersede ordinary causes of action. Preventive relief is the moving purpose. Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414 , 177 S.E.2d 519 (1970).

Effect of the declaratory judgment act, as embraced in this and the succeeding sections of this article, is to increase the usefulness of the courts and remove doubt or uncertainty as to the final result of legal controversies, by empowering the courts to enter declaratory judgments and decrees touching the rights of the parties in such cases. Patterson v. Patterson, 144 Va. 113 , 131 S.E. 217 (1926); Winborne v. Doyle, 190 Va. 867 , 59 S.E.2d 90 (1950).

Customary processes of court are preferred. - In common cases where a right has matured or a wrong has been suffered, customary processes of the court, where they are ample and adequate, should be adopted, rather than a petition for a declaratory judgment. American Nat'l Bank & Trust Co. v. Kushner, 162 Va. 378 , 174 S.E. 777 (1934); Williams v. Southern Bank, 203 Va. 657 , 125 S.E.2d 803 (1962).

The declaratory judgment act is remedial and is to be liberally interpreted and administered. Yukon Pocahontas Coal Co. v. Ratliff, 175 Va. 366 , 8 S.E.2d 303 (1940); Portsmouth Restaurant Ass'n v. Hotel & Restaurant Employees Alliance, Local 807, 183 Va. 757 , 33 S.E.2d 218 (1945); Dean v. Paolicelli, 194 Va. 219 , 72 S.E.2d 506 (1952).

Justiciable interest must be present. - In order to entitle any person to maintain an action in court it must be shown that he has a justiciable interest in the subject matter in litigation; either in his own right or in a representative capacity. Lynchburg Traffic Bureau v. Norfolk & W. Ry., 207 Va. 107 , 147 S.E.2d 744 (1966).

Preventing multiplicity of suits. - The fact that multiplicity of actions may be avoided if a declaratory judgment be granted is not always a ground for assuming jurisdiction. There must be some real necessity for the exercise of jurisdiction on such ground. It must be made to appear that there is no adequate remedy at law as practical and effective to attain the ends of justice as may be accomplished in a court of equity and that the questions of law and fact involved are common to each of the several actions. Williams v. Southern Bank, 203 Va. 657 , 125 S.E.2d 803 (1962); Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414 , 177 S.E.2d 519 (1970).

It makes no difference on which side of the court a case proceeds if it is brought properly under the declaratory judgments statutes. Carr v. Union Church, 186 Va. 411 , 42 S.E.2d 840 (1947).

An action for declaratory judgment may proceed on law or chancery side of the court. Sood v. Advanced Computer Techniques Corp., 308 F. Supp. 239 (E.D. Va. 1969).

Exercise of jurisdiction is within discretion of trial court. - Upon a petition for a declaratory judgment, whether or not jurisdiction shall be taken is within the sound discretion of the trial court. Something more than an "actual controversy" is necessary. American Nat'l Bank & Trust Co. v. Kushner, 162 Va. 378 , 174 S.E. 777 (1934); D.D. Jones Transf. & Whse. Co. v. Commonwealth ex rel. SCC, 174 Va. 184 , 5 S.E.2d 628 (1939); Andrews v. Universal Moulded Prods. Corp., 189 Va. 527 , 53 S.E.2d 837 (1949).

Whether or not jurisdiction shall be taken is within the sound discretion of the trial court. Something more than an "actual controversy" is necessary. In common cases where a right has matured or a wrong has been suffered, customary processes of the court, where they are ample and adequate, should be adopted. Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414 , 177 S.E.2d 519 (1970).

The power to make a declaratory judgment is a discretionary one and must be exercised with care and caution. It will not, as a rule, be exercised where some other mode of proceeding is provided. Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414 , 177 S.E.2d 519 (1970).

Rule is permissive, not mandatory. Commonwealth ex rel. Art Comm'n v. Silvette, 215 Va. 596 , 212 S.E.2d 261 (1975).

Courts not to render advisory opinions. - The act providing for declaratory judgments, contemplates that the parties to the proceeding shall be adversely interested in the matter as to which the declaratory judgment is sought and their relation thereto such that a judgment or decree will operate as res judicata as to them. It authorizes the entry of such judgment before the right is violated, and even though no consequential relief is or could be asked for or granted. It does not, however, confer upon the courts the power to render judicial decisions which are advisory only. Chick v. McBain, 157 Va. 60 , 160 S.E. 214 (1931).

The courts are not constituted, and the declaratory judgment statute was not intended to vest them with authority, to render advisory opinions, to decide moot questions or to answer inquiries which are merely speculative. City of Fairfax v. Shanklin, 205 Va. 227 , 135 S.E.2d 773 (1964); Virginia Historic Landmarks Comm'n v. Board of Supvrs., 217 Va. 468 , 230 S.E.2d 449 (1976).

Consequential or incidental relief may be obtained in an action in which a declaratory judgment is sought. Winborne v. Doyle, 190 Va. 867 , 59 S.E.2d 90 (1950); Dean v. Paolicelli, 194 Va. 219 , 72 S.E.2d 506 (1952).

But failure to seek incidental relief does not bar enforcement of rights in other proceedings. - The failure to seek incidental relief in a suit for a declaratory judgment does not constitute a bar to other proceedings to enforce the rights determined by the judgment, whether such other proceeding is by petition filed in that cause or in a separate and independent action. Winborne v. Doyle, 190 Va. 867 , 59 S.E.2d 90 (1950).

Question determinable in either declaratory judgment proceeding or another pending proceeding. - Where a declaratory judgment proceeding and another pending proceeding in which relief is sought involve the identical question, the court may decide the issue in either proceeding, and is under no compulsion to do so in the declaratory judgment proceeding rather than in the other. And it having been determined that the matter can be decided in the other proceeding, the declaratory judgment proceeding serves no further purpose, and may be dismissed. Andrews v. Universal Moulded Prods. Corp., 189 Va. 527 , 53 S.E.2d 837 (1949).

Exhaustion of administrative remedies required. - When a landowner claims a zoning ordinance is invalid as applied to his specific property, he must exhaust adequate and available administrative remedies before proceeding by declaratory judgment to make a direct judicial attack on the applied constitutionality of the ordinance. Gayton Triangle Land Co. v. Board of Supvrs., 216 Va. 764 , 222 S.E.2d 570 (1976).

But not where useless. - Landowner challenging the validity of a zoning ordinance as applied to his property need not apply for a variance before bringing his declaratory judgment action if the challenged restrictions or obligations could not be remedied by variance. Gayton Triangle Land Co. v. Board of Supvrs., 216 Va. 764 , 222 S.E.2d 570 (1976).

Not proper where judgment as to disputed fact is determinative of issues. - Where a declaratory judgment as to a disputed fact would be determinative of issues, rather than a construction of definite stated rights, status, and other relations, commonly expressed in written instruments, the case is not one for declaratory judgment. Williams v. Southern Bank, 203 Va. 657 , 125 S.E.2d 803 (1962); Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414 , 177 S.E.2d 519 (1970).

Determining ownership of land claimed by State. - A declaratory judgment proceeding is an adequate means for determining the ownership of land which the State Highway Commissioner believes to be land of the State. Gilliam v. Harris, 203 Va. 316 , 124 S.E.2d 188 (1962).

Res judicata. - Under this section and § 8.01-186 , where a prior action was instituted to construe a will and to have the court determine who was entitled to the rents, issues, and profits from a particular house after a particular event, no other issue being presented, the question of the rental value of the house was not barred from consideration in a subsequent action under the doctrine of res judicata. Winborne v. Doyle, 190 Va. 867 , 59 S.E.2d 90 (1950).

Particular instances. - For case determining rights under conflicting licenses for brush blinds, see Brumley v. Grimstead, 170 Va. 340 , 196 S.E. 668 (1938).

For case as to sufficiency of the bill to state a case for a declaratory judgment concerning the right to an interpretation of an arbitration award and order of the War Labor Board, see Portsmouth Restaurant Ass'n v. Hotel & Restaurant Employees Alliance, Local 807, 183 Va. 757 , 33 S.E.2d 218 (1945).

A proceeding to determine whether the petitioners had the right to employ in their mercantile establishment a registered optometrist under the provisions of former Title 54, Chapter 14, of the Code presented an "antagonistic assertion and denial of right" and was proper case for a declaratory judgment. Cowardin v. Burrage, 195 Va. 54 , 77 S.E.2d 428 (1953).

Petitioners as users of a district sewerage system, had no such proprietary interest in the system under the Sanitary District Law, §§ 21-112.22 through 21-140.3 , as to entitle them to challenge the action of the county board of supervisors in increasing rates in order to secure funds to build a treatment plant. Abbott v. Board of Supvrs., 200 Va. 820 , 108 S.E.2d 243 (1959).

It may well be that after a decision is made by the board of zoning appeals which aggrieves a taxpayer, the elements would then exist to support a declaratory judgment action in which the authority of the board could be challenged. But that is not to say that such elements exist where the board has not made any decision. City of Fairfax v. Shanklin, 205 Va. 227 , 135 S.E.2d 773 (1964).

Since there was no specific case regarding apartment usage within the city involved, plaintiff's case had to depend, of necessity, upon future or speculative facts, that is to say, that a special use permit might, someday, be granted by the board which might aggrieve the plaintiff. Under these circumstances, the motion for declaratory judgment, upon its face, merely sought an advisory opinion, or a decision upon a moot question, or an answer to a speculative inquiry. City of Fairfax v. Shanklin, 205 Va. 227 , 135 S.E.2d 773 (1964).

When a justiciable controversy exists between two insurance companies as to their obligations under the terms of their respective policies, a declaratory judgment proceeding may be maintained by one of the companies against the other. Criterion Ins. Co. v. Grange Mut. Cas. Co., 210 Va. 446 , 171 S.E.2d 669 (1970); Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414 , 177 S.E.2d 519 (1970).

Where the plaintiffs sought, in essence, the recovery of a money judgment, a sum certain, and various claims and rights asserted had all accrued and matured, and the wrongs had been suffered, when their petition for a declaratory judgment was filed, the trial court erred in hearing the action pursuant to the declaratory judgment statutes. Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414 , 177 S.E.2d 519 (1970).

If an ordinance is unreasonable and unconstitutional in its entirety and the result of such unreasonableness is to confiscate plaintiff's property or to discriminate against it, then an action for a declaratory judgment lies. Board of Supvrs. v. Rowe, 216 Va. 128 , 216 S.E.2d 199 (1975).

Officer may mandamus himself. - Under this article the Auditor of Public Accounts, as an individual, may prosecute a writ of mandamus against himself as Auditor. Moore v. Moore, 147 Va. 460 , 137 S.E. 488 (1927).

B. ACTUAL CONTROVERSY.

Purpose of words "actual controversy" and "actual antagonistic assertion and denial of right." - In this and the following sections of this chapter the words "actual controversy" and "actual antagonistic assertion and denial of right" were intended to prevent the consideration of moot questions by the court, and not to deprive the courts of jurisdiction to enter a declaratory decree where there is actual antagonistic assertion and denial of right. Patterson v. Patterson, 144 Va. 113 , 131 S.E. 217 (1921).

Actual controversy test. - The test of the applicability of this article is the determination of the existence of an actual controversy. The manifest intention of the legislature was to provide for a speedy determination of actual controversies between citizens, and to prune, as far as is consonant with right and justice, the dead wood attached to the common-law rule of "injury before action" and a multitude of suits to establish a single right. Neal v. State-Planters Bank & Trust Co., 166 Va. 158 , 184 S.E. 203 (1936). See Yukon Pocahontas Coal Co. v. Ratliff, 175 Va. 366 , 8 S.E.2d 303 (1940); Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414 , 177 S.E.2d 519 (1970).

There must be "actual controversy" based on "actual antagonistic assertion and denial of right." - It must appear that there is an "actual controversy" existing between the parties, based upon an "actual antagonistic assertion and denial of right," before the application for declaratory judgment can be entertained and an adjudication made. City of Fairfax v. Shanklin, 205 Va. 227 , 135 S.E.2d 773 (1964); Lynchburg Traffic Bureau v. Norfolk & W. Ry., 207 Va. 107 , 147 S.E.2d 744 (1966); Virginia Historic Landmarks Comm'n v. Board of Supvrs., 217 Va. 468 , 230 S.E.2d 449 (1976).

Controversy is not created by taking a position and then challenging the government to dispute it. City of Fairfax v. Shanklin, 205 Va. 227 , 135 S.E.2d 773 (1964).

Controversy must be one that is justiciable, that is, where specific adverse claims, based upon present rather than future or speculative facts, are ripe for judicial adjustment. City of Fairfax v. Shanklin, 205 Va. 227 , 135 S.E.2d 773 (1964); Virginia Historic Landmarks Comm'n v. Board of Supvrs., 217 Va. 468 , 230 S.E.2d 449 (1976).

To invoke the jurisdiction of the court under this section, the controversy must be one that is justiciable; that is, where specific adverse claims based upon present rather than future or speculative facts are ripe for judicial adjustment. Board of Supvrs. v. Rowe, 216 Va. 128 , 216 S.E.2d 199 (1975).

Before an action may be maintained under the act there must be a justiciable controversy, for the rendering of advisory opinions is not a part of the function of the judiciary in Virginia. Criterion Ins. Co. v. Grange Mut. Cas. Co., 210 Va. 446 , 171 S.E.2d 669 (1970); Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414 , 177 S.E.2d 519 (1970).

Controversy may be shown by pleading or evidence. - Whether or not there is a controversy is a question of fact, which may be shown by the pleadings or by the evidence. Yukon Pocahontas Coal Co. v. Ratliff, 175 Va. 366 , 8 S.E.2d 303 (1940).

Allegations showing actual controversy. - Where complaints alleged that defendants were dividing the surface of a portion of the land claimed under the deed, erecting and permitting the erection of buildings and other improvements thereon that were inconsistent with mining purposes, and destroying the rights, privileges and easements of complainants, and excluding them from the use of the surface of the land, in violation of the rights, privileges and easements expressly and impliedly conveyed to them by the deed, and that they had no plain, adequate and complete relief at law, such allegations showed that there was an actual controversy and an actual antagonistic assertion or denial of rights between the parties. Yukon Pocahontas Coal Co. v. Ratliff, 175 Va. 366 , 8 S.E.2d 303 (1940).

When a property owner alleges that a zoning ordinance creates discriminatory, arbitrary and capricious classifications bearing no substantial relation to the public health, safety or welfare, or that a zoning ordinance imposes land use restrictions or affirmative land use obligations so unreasonable as to constitute a "taking" of property without compensation or due process of law or that a zoning ordinance is otherwise unconstitutional and that he has suffered damage to his property located in a district affected by such ordinance, he has stated a case of actual controversy within the meaning of this section and one that is ripe for judicial adjustment. Board of Supvrs. v. Rowe, 216 Va. 128 , 216 S.E.2d 199 (1975).

Failed to show actual controversy. - In a case regarding whether a student at a public high school, by and through his parents as next friends, had standing to sue a school board based on his alleged distress over potential repercussions from the school board's expansion of its anti-discrimination and anti-harassment policy, the circuit court concluded that the complaint failed to set forth an actual controversy. Plaintiffs did not articulate unique injuries compared to that of the general public and thus could not claim taxpayer standing. Lafferty v. Sch. Bd. of Fairfax Cnty., 293 Va. 354 , 798 S.E.2d 164, 2017 Va. LEXIS 58 (2017), aff'd, 138 S. Ct. 2144, 201 L. Ed. 2d 650 (2018).

CIRCUIT COURT OPINIONS

Construction of declaration of covenant and statutes. - Declaratory judgment under § 8.01-184 was an appropriate vehicle for homeowners' claims against the homeowners' association for raiding the association's capital reserves to pay its attorney's fees, in violation of § 55-514.1, because the controversy required the interpretation of multiple instruments and two statutes, and a determination would help the parties' understanding in the future. Farran v. Olde Belhaven Towne Owners' Ass'n, 83 Va. Cir. 286, 2011 Va. Cir. LEXIS 114 (Fairfax County Aug. 24, 2011).

Controversy not ripe for adjudication. - Issue of the priority between two insurance policies was not ripe for adjudication, and declaratory judgment was inappropriate, because there had not been a claim under the policies at issue or any denial of coverage, and hence there was no justiciable controversy. Atkinson v. Penske Logistics, L.L.C., 61 Va. Cir. 223, 2003 Va. Cir. LEXIS 231 (Norfolk 2003).

Property owner's case against a home owner's association board was not ripe for adjudication where the pleadings as a whole did not contain facts indicating an actual controversy that would justify an exercise of the court's discretion; the owner made no claim that the board took any specific action against him or against other property owners in the subdivision, nor did he point to any action on his part that put him in conflict with the board. The owner did not seek to have the circuit court declare the rights of the parties in order to settle a controversy between him and the board over some pending transaction; rather, he asked the court to provide guidance to the board as to the proper application of a covenant pertaining to the use of subdivision roads. Pedigo v. Flattop Mt. Landowners Ass'n, 74 Va. Cir. 422, 2007 Va. Cir. LEXIS 241 (Greene County 2007).

Separation of powers issue. - State senator's motion for a temporary injunction under § 8.01-620 et seq. to enjoin the lieutenant governor from casting any tie-breaking vote was denied because the senator was unlikely to be unsuccessful on the merits of his declaratory judgment action due to separation of powers under Va. Const. art. III, § 1; the circuit court cannot intervene in the normal operating procedures of the senate and enjoin one of the highest officials of the Commonwealth from performing his or her constitutional duties, and the power of an injunction or a declaratory judgment action cannot be used to force parties in disagreement to negotiate a compromise. McEachin v. Bolling, 84 Va. Cir. 76, 2011 Va. Cir. LEXIS 189 (Richmond Dec. 16, 2011).

State senator's motion for a temporary injunction under § 8.01-620 et seq. to enjoin the lieutenant governor from casting any tie-breaking vote was denied because the senator was unlikely to be unsuccessful on the merits of his declaratory judgment action due to ripeness; no action had been taken by the lieutenant governor or the General Assembly, and for the circuit court to intervene before the legislative process had even begun would be tantamount to issuing an impermissible advisory opinion. McEachin v. Bolling, 84 Va. Cir. 76, 2011 Va. Cir. LEXIS 189 (Richmond Dec. 16, 2011).

Dillon's Rule. - City's demurrer to the treasurer's complaint was denied as the treasurer sufficiently alleged that the council violated Dillon's Rule by enacting an ordinance contrary to the city's charter. Pritchett v. City of Petersburg City Council, 103 Va. Cir. 270, 2019 Va. Cir. LEXIS 623 (Petersburg Oct. 22, 2019).

Case moot where property owners had withdrawn conditional use permit amendment application. - Property owners who had granted easements to a mining company and agreed to support the company's applications for conditional use permits, had withdrawn their application in opposition to the conditional use permits. Therefore, the owners' claims for declaratory judgment that their conditional use permit amendment application did not breach the agreements were moot, as were the mining company's claims seeking to enjoin the owners from seeking the amendment. Martin Marietta Materials, Inc. v. Sletten, 81 Va. Cir. 1, 2010 Va. Cir. LEXIS 282 (Hanover County Jan. 11, 2010).

Controversy ripe for adjudication. - Relatives' motions to dismiss and quash a lawyer's declaratory judgment action under the Virginia Declaratory Judgment Act, § 8.01-184 et seq., seeking a declaratory judgment regarding his rights and responsibilities under powers of attorney were denied because an actual controversy existed since the lawyer alleged that his authority under the powers of attorney was in dispute, and he sought for a declaratory judgment that defined the parties' rights and responsibilities under the powers of attorney. Tabet v. Sheban, 83 Va. Cir. 89, 2011 Va. Cir. LEXIS 75 (Fairfax County June 9, 2011).

Validity of a provision in an enrollment contract between a 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, irrespective of who initiated or prevailed in the suit, was ripe for adjudication because the parent's filing of a declaratory judgment lawsuit triggered the applicability of the contract clause sought to be declared unlawful in the suit. McIntosh v. Flint Hill Sch., 100 Va. Cir. 32, 2018 Va. Cir. LEXIS 321 (Fairfax County Sept. 17, 2018).

Declaration of speculative future circumstances. - Where a seller requested the court to set a reasonable time for the performance of the parties' contract, declaratory judgment was improper since the adjudication would necessarily be based, at least in part, on speculative future circumstances; the buyer's demurrer was sustained as to that issue. Garnett v. Medicorp Props., 62 Va. Cir. 450, 2003 Va. Cir. LEXIS 162 (Spotsylvania County 2003).

Declarations concerning insurance coverage. - Insurer was not obligated to provide coverage, nor did it have a duty to defend, the decedent's administrator in a negligence action filed by guardian arising out of a car accident in which the decedent died and the guardian's daughter was injured, as the guardian failed in her burden inproving that the decedent was a resident of the insured's household, albeit the fact that the decedent was driving the insured's vehicle, which the insured had not granted him permission to do. Nationwide Mut. Ins. Co. v. Erbe, 66 Va. Cir. 451, 2001 Va. Cir. LEXIS 528 (Amherst County 2001).

When a minor injured party whose mother had legal custody of him but who regularly visited his father in the home of the injured party's grandfather sought underinsured motorist coverage under policies issued to his father and grandfather, he could not be considered a member of the households of his father or grandfather for purposes of such coverage because his membership in those households was not permanent but consisted of visits. Brogdon v. Clark, 63 Va. Cir. 85, 2003 Va. Cir. LEXIS 341 (Richmond 2003).

Demurrers were overruled because a justiciable controversy existed, and a declaratory judgment was appropriate; an employee's cross-claims against a barge owner's insurer and an excess insurer grew out of a petition to intervene in his tort action, which was filed by a charterer's insurer, because the owner's insurer issued a liability policy that could be implicated in the tort action, and if the damages exhausted the policy, the excess insurer's would be triggered. Riverport Ins. Co. v. C&M Indus., 87 Va. Cir. 281, 2013 Va. Cir. LEXIS 177 (Norfolk Nov. 26, 2013).

Demurrers were overruled because a justiciable controversy existed; because a barge owner was a party to the controversy regarding coverage between its employee and its insurer, and a charterer was a party to the controversy regarding coverage between the employee and its insurer, if a justiciable controversy existed for the employee's cross-claims against the owner's insurer, it was necessary that the owner and charterer be bound to any declaratory judgment action. Riverport Ins. Co. v. C&M Indus., 87 Va. Cir. 281, 2013 Va. Cir. LEXIS 177 (Norfolk Nov. 26, 2013).

Demurrers were overruled because a justiciable controversy existed, and a declaratory judgment was appropriate; an employee stated a colorable claim and alleged that he sought a determination of his rights under various insurance policy instruments. Riverport Ins. Co. v. C&M Indus., 87 Va. Cir. 281, 2013 Va. Cir. LEXIS 177 (Norfolk Nov. 26, 2013).

Demurrers were overruled because a justiciable controversy existed, and a declaratory judgment was appropriate since determination of coverage served the purpose of the Virginia Declaratory Judgment Act so the parties could be guided in their future conduct in relation to each other and avoid the risk of action that would jeopardize their respective interests; an employe sought declaratory judgment to determine his rights under insurance policies to guide the future conduct of the parties. Riverport Ins. Co. v. C&M Indus., 87 Va. Cir. 281, 2013 Va. Cir. LEXIS 177 (Norfolk Nov. 26, 2013).

Declarations concerning special exception permit. - Circuit court declared that the denial of a business owner's application for a special exception permit was not arbitrary, capricious and unreasonable because both quantitatively and qualitatively the information before the board of supervisors made approval or denial of the application fairly debatable in that reasonable persons could have come to different conclusions based on what the board could properly consider; the board had evidence before it that validly supported its conclusion. Jennings v. Bd. of Supervisors of Northumberland Cty., 97 Va. Cir. 341, 2009 Va. Cir. LEXIS 2065 (Northumberland County Sept. 4, 2009).

Circuit court declared that the denial of a business owner's application for a special exception permit was not arbitrary, capricious and unreasonable because the zoning ordinance was not invalid for failure to set forth standards for the board to apply in issuing special exceptions. Jennings v. Bd. of Supervisors of Northumberland Cty., 97 Va. Cir. 341, 2009 Va. Cir. LEXIS 2065 (Northumberland County Sept. 4, 2009).

Validity of right of first refusal. - Pursuant to § 8.01-184 , the trial court declared that a right of first refusal in the articles of incorporation of a company was void ab initio, as this limitation on the transfer of stock was an unreasonable restraint, and also violated the rule against perpetuities. Frazer v. Millington, 63 Va. Cir. 458, 2003 Va. Cir. LEXIS 256 (Fairfax County 2003).

Standing generally. - Demurrers and pleas in bar filed by a property owner and a county board of supervisors were denied in part and granted in part because, while a church had standing to bring a declaratory judgment proceeding as a party to the original easement contract at issue, the neighbors' membership in a homeowner's association was too tenuous to confer standing on them where it was not a party to the suit and the alleged harm to them was no different than that of any other member of the general public. Tran v. Fairfax County Bd. of Supervisors, 87 Va. Cir. 344, 2013 Va. Cir. LEXIS 140 (Fairfax County Dec. 18, 2013).

First, there must be an actual controversy to which the board of supervisors is a party, and the court is not empowered to render merely advisory opinions; second, declaratory relief can only be exercised if it will relieve the board from the risk of the board of zoning appeals taking undirected action which would jeopardize the lawful and legitimate interests of the board. Bd. of Supervisors v. Bd. of Zoning Appeals,, 2018 Va. Cir. LEXIS 23 (Fairfax County Feb. 13, 2018).

Neither the "aggrieved party" standard nor the "justiciable interest" standard is broader nor narrower than the other, and thus the board of supervisors can qualify as an "aggrieved person" and may have standing in a declaratory judgment action; however, although the board may have standing, it does not automatically have standing, and the test to be applied to whether the board of supervisors has standing to pray for declaratory relief against the board of zoning appeals is fact-dependent. Bd. of Supervisors v. Bd. of Zoning Appeals,, 2018 Va. Cir. LEXIS 23 (Fairfax County Feb. 13, 2018).

Alleged procedural transgressions in the decision-making process of the board of zoning appeals may be challenged by declaratory judgment action by any aggrieved party as a justiciable claim when they underlie, but are not identical to, the merits decision separately appealed, for each adjudicative process addresses distinct claims for relief not directly overlapping in the resulting judgment thereof. Bd. of Supervisors v. Bd. of Zoning Appeals,, 2018 Va. Cir. LEXIS 23 (Fairfax County Feb. 13, 2018).

County board of supervisors had standing to challenge the actions of a county board of zoning appeals (BZA) through declaratory relief because it had "aggrieved party" status by virtue of the action decided against it, and declaratory relief would determine the lawfulness of the process the BZA used; no other mode of procedure was available to the board of supervisors to challenge directly and reach the course of the BZA procedure employed and the question of its claimed authority to reconsider its decisions. Bd. of Supervisors v. Bd. of Zoning Appeals,, 2018 Va. Cir. LEXIS 23 (Fairfax County Feb. 13, 2018).

Standing to challenge ordinance. - Residential landlords were entitled to bring a declaratory judgment action even though they did not allege that the ordinance they sought to invalidate had actually been applied to them as they had a direct interest in the application of the ordinance since the ordinance applied to the rental of their properties. Logie v. Town of Front Royal, 58 Va. Cir. 527, 2002 Va. Cir. LEXIS 174 (Warren County 2002).

Developer had standing to determine status of landowners' easement over dedicated property. - Although a developer no longer owned property it had dedicated to the county, where the dedicated property had become part of a public road and the county would not release a bond posted to ensure the developer's expansion of that road, the developer had standing to seek a declaratory judgment that the landowners' easement over the dedicated property had expired; release of the bond was tied to the termination of that easement. Basheer/Edgemoore-Millwood, LLC v. Sizdahkhani, 62 Va. Cir. 28, 2003 Va. Cir. LEXIS 84 (Fairfax County 2003).

Court not to render advisory opinions. - Although a property owner satisfied the standing requirement necessary for a grant declaratory relief under §§ 8.01-184 , 8.01-191 because the owner's claim related to restrictions on development of the owner's land, was not merely speculative and the owner did not need to exhaust its administrative remedies, while the owner's subdivision application was pending, the owner was estopped from proceeding with the declaratory action since it rendered the need for court intervention illusory and advisory. Broad Run Vill., L.C. v. Loudoun County Bd. of Supervisors, 59 Va. Cir. 96, 2002 Va. Cir. LEXIS 331 (Louisa County May 8, 2002).

In a declaratory judgment action filed by a landowner against his neighbors regarding the rights and duties in reference to the maintenance of an easement located in their subdivision, the circuit court had the authority to allow the landowner to: (1) remove all trees six inches in diameter or smaller or tree limbs that could hang over on the roadway during snow or ice; (2) keep open ditches parallel to the roadway for water drainage; (3) keep open or replace existing culverts across the roadway or driveways; and (4) make minor improvements to the roadway such as grading and spreading additional gravel; but, the court declined an invitation to set forth specific standards of future maintenance. Saunders v. Coleman, 65 Va. Cir. 9, 2004 Va. Cir. LEXIS 283 (Fauquier County 2004).

Where a property owner asked the circuit court first to declare the rights of the parties and then to grant guidance to a home owner's association board as to the proper application of a covenant insofar as the use of subdivision roads was concerned, that request for relief sought a legal opinion that would, in effect, tell the association what to do and what not to do with the roads. That requested relief amounted to precisely the kind of advisory opinion that was not permitted under the Declaratory Judgment Statute. Pedigo v. Flattop Mt. Landowners Ass'n, 74 Va. Cir. 422, 2007 Va. Cir. LEXIS 241 (Greene County 2007).

Relatives' motions to dismiss a lawyer's action under the Virginia Declaratory Judgment Act, § 8.01-184 et seq., seeking a declaration regarding the propriety of his actions taken under powers of attorney, was granted because the declaratory relief sought would require the circuit court to render an advisory opinion. Tabet v. Sheban, 83 Va. Cir. 89, 2011 Va. Cir. LEXIS 75 (Fairfax County June 9, 2011).

Actual controversy. - Declaratory judgment action by traffic violators who challenged the constitutionality of the remedial driver fees in § 46.2-206.1 withstood a dismissal challenge on the basis of sovereign immunity, as at least two of the violators had been convicted and as such, they had a direct and justiciable interest in the subject matter of the action; there was an actual controversy and as the only issues related to the constitutionality of the legislation and nothing more was sought from the Commonwealth, pursuant to §§ 8.01-184 and 8.01-191 the action was viable. Minter v. Commonwealth, 74 Va. Cir. 336, 2007 Va. Cir. LEXIS 194 (Roanoke County 2007).

When an employee sought a declaratory judgment that the employee's non-compete agreement with the employee's employer was unenforceable, no actual controversy was alleged because (1) the employee did not state an intention to breach the agreement, (2) the employer did not state an intention to enforce the agreement, (3) the agreement did not contain a liquidated damages provision that might have excused any requirement to breach the agreement to establish an actual controversy, and (4) the employer's filing of a demurrer as to the claim did not, alone, establish an actual controversy. Tomlin v. IBM, Corp., 84 Va. Cir. 280, 2012 Va. Cir. LEXIS 26 (Fairfax County Feb. 13, 2012).

Employee could bring an action seeking a declaratory judgment regarding the existence of coverage under a given insurance policy because the action did not merely seek a scope of employment determination, and there existed an underlying tort action in which the employer could be impleaded as a third party or subjected to a subsequent action for contribution and the gravamen of the petition was a determination of parties' rights under the written policy of insurance issued by the insurer to the employer, which inherently included the scope of employment issue, for which determination the employer was a necessary party. Pittman v. Verizon Servs. Corp., 97 Va. Cir. 298, 2017 Va. Cir. LEXIS 353 (Chesapeake Dec. 28, 2017).

Corporation's claim set forth a proper matter for judicial declaration because it presented a case of actual controversy, and a declaration regarding the parties' rights to control a joint venture under contracts constituted a binding adjudication of their rights; if an amendment trigger controlled, the corporation controlled the joint venture, and the dissolution would be found to have been proper, but if the trigger did not occur, the parties' would have joint control of the joint venture. ATK Space Sys. v. US Space LLC, 99 Va. Cir. 46, 2018 Va. Cir. LEXIS 314 (Loudoun County Jan. 19, 2018).

Because the controversy was delaying the ultimate resolution of the transfer of marital property, declaratory relief was available; as there was clearly a dispute between the parties as to whether the marital settlement agreement SA and final order of divorce required the property to be sold to a third party, there was an actual controversy. Hutchens v. Hutchens,, 2020 Va. Cir. LEXIS 194 (Loudoun County Oct. 20, 2020).

No justiciable controversy. - Second town failed to state a claim upon which relief could be granted in its suit for declaratory judgment because there was no actual controversy upon which declaratory judgment could be based; the first town would still not be found to have no particular boundary on its western end, but the former metes and bounds description would stand, and the first town's boundary would be as described originally by metes and bounds. Town of Cedar Bluff v. Town of Richlands, 92 Va. Cir. 438, 2010 Va. Cir. LEXIS 329 (Tazewell County August 16, 2010).

Property owners who alleged in their declaratory judgment actions that a subdivision ordinance passed by a county altered the use and marketability of their properties did not establish an actual, justiciable controversy that survived demurrers as to standing in their actions pursuant to § 8.01-184 , as the limitations from the ordinance were only possibilities and general problems. Barnes v. Orange County BOS, 78 Va. Cir. 392, 2009 Va. Cir. LEXIS 223 (June 22, 2009).

Declaratory judgment claim was dismiss because no actual controversy exists between the parties; loan documents, a swap agreement, and guarantees were binding, and they contained clear and unambiguous language. Sun Hotel v. Summitbridge Credit Invs. III, LLC, 86 Va. Cir. 189, 2013 Va. Cir. LEXIS 4 (Fairfax County Jan. 23, 2013).

Circuit court did not have the authority to exercise jurisdiction over a substitute teacher's requests for declaratory relief because the teacher failed to allege a justiciable controversy; the teacher did not allege that the county public schools failed to interpret § 22.1-296.1 as an affirmative obligation regarding the language required in their employment application, and there was no statutory avenue for the teacher to challenge a nonrenewal of her contract. Flinn v. Fairfax County Sch. Bd., 87 Va. Cir. 262, 2013 Va. Cir. LEXIS 102 (Fairfax County Nov. 14, 2013).

Circuit court found it unnecessary to exercise its declaratory judgment jurisdiction because whether sovereign immunity barred the declaratory action was moot. Cty. of Lancaster v. Latimore, 97 Va. Cir. 401, 2013 Va. Cir. LEXIS 228 (Lancaster County May 31, 2013).

Purchaser's demurrer on an assignee's declaratory judgment request was sustained with prejudice where the true object of the request was to seek a determination as to whether the purchaser breached the purchase agreement by not allocating any portion of the floor area ratio to the assignee, and since there was no assertion of future conduct that required a judicial determination, granting a declaration would have resulted in an advisory opinion. RECP IV WG Land Investors, LLC v. Capital One Bank (USA), NA, 93 Va. Cir. 282, 2016 Va. Cir. LEXIS 142 (Fairfax County May 5, 2016), aff'd, 295 Va. 268 , 811 S.E.2d 817 (2018).

Circuit court would not make a declaration regarding completion bonuses because there was no actual justiciable controversy; there were no completion bonuses in dispute, and a contractor agreed it had to pay them if and when they arose. Parsons Gov't Servs. v. Bechtel Nat'l, Inc.,, 2016 Va. Cir. LEXIS 214 (Fairfax County Oct. 12, 2016).

Denial of any motion by a citizen for declaratory judgment when the citizen challenged the Governor of Virginia's announcement that the Governor would remove and relocate a statue of Robert E. Lee was appropriate because the citizen did not articulate a legally viable cause of action as both of the citizen's substantive claims for violation of a statute and for covenant in gross failed as a matter of law. Gregory v. Northam,, 2020 Va. Cir. LEXIS 182 (Richmond Aug. 3, 2020).

No specific adverse claim alleged. - Declaratory relief was not available to a homeowner since the homeowner did not allege specific adverse claims as it merely alleged: (1) that a homeowners' association had expressed a view that subdivision roads were open to the public, with which the homeowner disagreed; (2) that the association took the "position" that it had the authority to enter into agreements with non-lot owners granting them permission to use the subdivision roads; (3) that there had been a violation of the restrictive covenants because the association entered into agreements with non-lot owners granting such permission; and (4) that the association improperly acted during the 2000 hunting season; the complaint did not allege any actions taken when the complaint was filed, and did not allege any controversy as to the use of the subdivision roads. Further, the homeowner could not produce any agreement for the use of the subdivision roads with a non-lot owner. Pedigo v. Flattop Mt. Landowners Ass'n, 73 Va. Cir. 26, 2007 Va. Cir. LEXIS 54 (Greene County 2007).

For Declaratory Judgment Act purposes, plaintiff alleged there was an actual controversy between the parties as to the ownership of stock, but plaintiff had not sufficiently identified and specified what the conflicting claims were, and thus the objection to this count was sustained with leave to amend. Johnson v. MBA Consulting Servs., 97 Va. Cir. 176, 2017 Va. Cir. LEXIS 329 (Fairfax County Nov. 21, 2017).

Personal jurisdiction established. - Relatives' motions to dismiss and quash a lawyer's declaratory judgment action under the Virginia Declaratory Judgment Act, § 8.01-184 et seq., seeking a declaratory judgment regarding his rights and responsibilities under powers of attorney were denied because the lawyer established a prima facie case of personal jurisdiction over the relatives since the relatives executed the powers of attorney in Virginia and returned to Virginia to meet again with the lawyer; by voluntarily creating a continuing relationship with the lawyer, who maintained an office and performed work for the relatives in Virginia, the relatives purposefully availed themselves of the privilege of conducting activities within the Commonwealth, and the relatives' contacts with Virginia were such that they should have reasonably anticipated being haled into court in Virginia if any controversies arose under the powers of attorney. Tabet v. Sheban, 83 Va. Cir. 89, 2011 Va. Cir. LEXIS 75 (Fairfax County June 9, 2011).

Declaratory judgment not inappropriate where disputed issue could be determined in future litigation. - State court allowed a plaintiff to maintain a suit for declaratory relief against the other car's user, lessee, lessee's parent corporation, and owner/lessor and insurers to determine the coverage to which he was entitled from each insurer. The suit could be maintained because it involved a justiciable issue even though that meant that the court had to decide whether the car user was an employee of other defendants, which was a fact issue that was critical in the federal case. Nottingham v. Caviggiola, 67 Va. Cir. 86, 2005 Va. Cir. LEXIS 183 (Norfolk Feb. 18, 2005).

Other remedies available. - Defendant's counterclaim for a declaratory judgment was dismissed because even if the court held in her favor that her statements were protected expressions of opinion that entitled her to attorney fees under the Anti-SLAPP statute, she would receive the relief at the same time as receiving the same relief under her anti-SLAPP defense. Depp v. Heard,, 2021 Va. Cir. LEXIS 1 (Fairfax County Jan. 4, 2021).

Breach of contract action for lost profit monetary damages. - Declaratory judgment relief did not lie under the Virginia Declaratory Judgment Act, § 8.01-184 et seq., where a subcontractor claimed that it had incurred, and indeed was suing for, lost profit monetary damages arising from a contractor's alleged breach of the subcontract agreement between the parties. GiniCorp v. Capgemini Gov't Solutions, LLC,, 2007 Va. Cir. LEXIS 5 (Fairfax County Jan. 2, 2007).

Recission of franchise agreement denied. - Trial court found that a franchisee's purported recission of a franchise agreement based on mutual mistake of fact pertaining to state licensure requirements, was not effective and the franchise agreement was not rescinded. Rojiani v. Griswold Special Care of Va.,, 2003 Va. Cir. LEXIS 33 (Roanoke Feb. 14, 2003).

Construction of an employment contract. - When an employer sued a former employee for a declaration that the employee did not have a cause of action against the employer related to her employment contract, it was not entitled to a declaration that the employee did not have a cause of action arising out of her employment or relating to any alleged unpaid commissions, as such a declaration would amount to a determination of issues rather than a construction of stated rights, but the employer was entitled to a declaration that the employee's position did not entitle her to commissions, as, due to the employee's failure to answer after being properly served, it was undisputed that she was never promoted to a position which entitled her to commissions, so the contract did not obligate the employer to pay the employee any commissions. ePlus Inc. v. Chan,, 2003 Va. Cir. LEXIS 100 (Fairfax County June 30, 2003).

Standing to challenge a non-compete. - Dentist had standing to challenge his non-compete agreements with a corporation through a bill of complaint seeking a declaratory judgment declaring that the agreements were overbroad and unenforceable and alleging that he wished to violate the agreements; the corporation demurred, implying that it intended to enforce the agreements. Graves v. Ciraden, Inc., 65 Va. Cir. 127, 2004 Va. Cir. LEXIS 152 (Fairfax County 2004).

Non-competition agreement declared unenforceable. - Insurance agent's action seeking a declaration pursuant to § 8.01-184 that a non-competition agreement in an employment contract with a former employer was null and void was granted, as the agreement's time limitation was so ambiguous that it appeared as though a meeting of the minds never occurred, and the agreement was too broad and vague in scope to be binding. Totten v. Employee Benefits Mgmt., 60 Va. Cir. 342, 2002 Va. Cir. LEXIS 401 (Roanoke County 2002).

Declaratory judgment interpreting certain non-competition provisions in employee agreements was not warranted because the noncompetition provisions were overbroad and facially invalid where they lacked geographic limitations, which was per se unreasonable. Innovative Sys. & Solutions, Inc. v. Hannah, 75 Va. Cir. 363, 2008 Va. Cir. LEXIS 270 (Norfolk July 31, 2008).

Declaratory judgment appropriate in action between landlord and tenant. - A tenant's motion for a demurrer pursuant to § 8.01-273 as to a landlord's declaratory judgment action pursuant to § 8.01-184 was denied, because § 8.01-191 stated that the declaratory judgment statute was remedial in nature and had to be liberally interpreted, and the declaratory judgment statute permitted a party like the landlord to seek the court's guidance on a landlord/tenant relationship, the pleadings stated a cause of action upon which relief could be granted, and the claims of each party were adverse to the other and were ripe for adjudication. Truslow, Inc. v. Gibbs, 59 Va. Cir. 472, 2002 Va. Cir. LEXIS 357 (Richmond Oct. 3, 2002).

Action regarding sublease. - In a lessor's declaratory judgment action against a lessee's predecessor in interest, the court held that the predecessor was not liable to the lessor after it entered into a second lease on the same premises with the lessee, despite the lessor's contention that it was exercising its self-help rights to mitigate its damages under the terms of the first lease, where the lessor: (1) failed to provide the predecessor with any written notice of default; (2) failed to show that the predecessor abandoned the premises; and (3) the lessor could not proceed under the theory that it could re-let the premises to mitigate his damages without accepting a surrender of the property; thus, the court held that entrance into a new lease on the same premises effected a surrender of the original lease by operation of law. Chippenham Square Acquistions, LLC v. Stop & Shop Supermarket Co., LLC, 67 Va. Cir. 542, 2004 Va. Cir. LEXIS 318 (Colonial Heights Aug. 11, 2004).

Conditional use permit. - Circuit court decided to address the merits of a declaratory judgment action in which plaintiffs claimed that they were injured by virtue of having to go through the process to obtain a conditional use permit that plaintiffs argued could not lawfully be required. Although plaintiffs' proposed wastewater treatment facility had not yet been approved by the Virginia Department of Health, this did not preclude plaintiffs from having standing to bring a declaratory judgment action. Atl. Town Ctr. Dev. Corp. v. Accomack County Bd. of Supervisors, 94 Va. Cir. 35, 2016 Va. Cir. LEXIS 112 (Accomack County July 18, 2016).

Declaratory judgment appropriate in action to determine which sentence inmate is serving. - Trial court entered judgment declaring that an inmate had served a 12-year sentence it imposed after he was convicted of abducting a police officer and use of a firearm in the commission of an abduction and that the inmate was serving sentences imposed for other crimes he committed, on which his parole was revoked. Turner v. Ewing, 63 Va. Cir. 117, 2003 Va. Cir. LEXIS 326 (Winchester 2003).

Dismissal of complaint against county warranted. - Complainants had not stated grounds for declaratory relief against the county for the regulations it took to preserve a village as an historic district because the regulations did not exceed the authority conferred upon the county pursuant to § 15.2-2306 . Additionally the complainants did not object to the proposed regulations as required under § 15.2-2285 . Madison v. Loudoun County Bd. of Supervisors, 69 Va. Cir. 469, 2006 Va. Cir. LEXIS 89 (Loudoun County 2006).

Failure to state claim. - Where a city manager had the discretion to exclude the police lieutenants from employee relations committees, the lieutenants' declaratory judgment action had to be dismissed without prejudice based on the city's demurrer. Bagwell v. City of Norfolk, 59 Va. Cir. 205, 2002 Va. Cir. LEXIS 341 (Norfolk July 2, 2002).

Demurrer granted. - Trial court granted a police department's demurrer in a declaratory judgment action pursuant to § 8.01-184 , and determined that the department could require applicants for concealed handgun permits to present evidence of residency in addition to a State application, as subsection D of § 18.2-308 only allowed the court to grant such a permit to a resident of the county, and the submission of corroborating proof of residence was a reasonable request. Merkel v. Manger,, 2003 Va. Cir. LEXIS 80 (Fairfax County May 5, 2003).

Demurrer denied. - Pursuant to §§ 8.01-184 and 8.01-191 , a demurrer was denied as to defendants' counterclaim requesting declaratory relief, specifically, a declaration that an easement granted them boat access from their property to a channel. Wessynton Homes Ass'n v. Burke, 79 Va. Cir. 365, 2009 Va. Cir. LEXIS 128 (Fairfax County Oct. 5, 2009).

County board of supervisors stated a claim under the statute because they pleaded an actual controversy sufficient enough to survive demurrer; the board had standing and adequately identified a justiciable interest. Bd. of Supervisors v. Bd. of Zoning Appeals,, 2018 Va. Cir. LEXIS 23 (Fairfax County Feb. 13, 2018).

Declaratory relief denied. - Bar and cafe were not entitled to declaratory relief holding that a city council acted unlawfully on when it revoked a blanket special exception respecting the operation of entertainment establishments and denied their applications for individual special exceptions to conduct such business operations because the city did not act deficiently in giving public notice of the council agenda in violation of the mandatory notice provisions of subsection A of § 15.2-2204 ; the bar and cafe did not deny either actual notice of or active participation in the council's consideration of any item relevant to their interests on its agenda. City of Norfolk v. Norfolk 102 LLC,, 2011 Va. Cir. LEXIS 144 (Norfolk Dec. 17, 2011).

Grant of summary judgment in favor of the insurer in the insured mother's declaratory judgment action filed under the Virginia Declaratory Judgment Act, § 8.01-184 et seq., was appropriate because the policy was not ambiguous and the clear language prevented stacking of intra-policy coverage. Bryant v. Selective Ins. Co., 82 Va. Cir. 188, 2011 Va. Cir. LEXIS 170 (Charlottesville Feb. 3, 2011).

General contractor was denied a preliminary injunction enjoining a subcontractor from pursuing litigation in North Carolina or Georgia because under the Virginia Declaratory Judgment Act, the circuit court could only interpret the parties' contracts as they applied to pending litigation in the circuit court, and it did not have the authority to prohibit out-of-state courts from exercising their own jurisdiction. JAAAT Tech. Servs., LLC v. Tetra Tech Tesoro, Inc., 92 Va. Cir. 62, 2015 Va. Cir. LEXIS 250 (Hopewell Mar. 17, 2015).

Because there was no breach of contract, the declarations sought by a subcontractor could not be granted. Parsons Gov't Servs. v. Bechtel Nat'l, Inc.,, 2016 Va. Cir. LEXIS 214 (Fairfax County Oct. 12, 2016).

If a university foundation were a public body of the Commonwealth, then the foundation would be cloaked in sovereign immunity, and a declaratory judgment would not be an appropriate form of relief against it under the Virginia Freedom of Information Act; even assuming the foundation was not a public body, declaratory relief would still be inappropriate, because the controversy had already ripened and injury had already been inflicted. Transparent GMU v. George Mason Univ., 97 Va. Cir. 212, 2017 Va. Cir. LEXIS 330 (Fairfax County Nov. 29, 2017).

University was entitled to sovereign immunity because under the Virginia Freedom of Information Act, it waived sovereign immunity only as to mandamus and injunctive relief, and declaratory judgment was not an available remedy; to the extent that the petition included requests for declaratory relief, those requests would not be entertained because they sought a form of relief not permitted by the legislature, to which the university was immune. Transparent GMU v. George Mason Univ., 97 Va. Cir. 212, 2017 Va. Cir. LEXIS 330 (Fairfax County Nov. 29, 2017).

Declaratory judgment was not warranted because there was no obligation for a former wife under a marital settlement agreement to agree to a buyout and no authority for the circuit court to force her to do so; because the marital settlement agreement spoke for itself, rendering an opinion as to the availability of a buyout opened the door for other types of agreements the parties could reach in lieu of listing the property for sale. Hutchens v. Hutchens,, 2020 Va. Cir. LEXIS 194 (Loudoun County Oct. 20, 2020).

Declaratory relief granted. - Insurer's request for a declaratory judgment was granted and the insurance policy was declared void ab initio due to defendant's material misrepresentations in the application process because had the insurer known the airplane was housed in Florida, the policy would not have issued, as the vice president of underwriting had initiated a block on all new policies for planes housed in Florida until a hurricane passed; had the insurer been aware that there was no current airworthiness certificate, then it would not have agreed to provide coverage for defendant's airplane; and the misrepresentations did more than just reasonably influence consideration by the insurer, they were the actual difference in getting the policy issued. Old Republic Ins. Co. v. Abruzzino, 99 Va. Cir. 492, 2018 Va. Cir. LEXIS 229 (Shenandoah County Aug. 28, 2018).

Prenuptial agreement was found to be valid and enforceable because a wife failed to establish by clear and convincing evidence that the agreement was unconscionable since there was not a gross disparity in the division of the assets; the wife failed to prove she was not provided a fair and reasonable disclosure of the property or financial obligations of the husband because she was given a detailed statement of financial condition. Dwoskin v. Dwoskin, 104 Va. Cir. 41, 2019 Va. Cir. LEXIS 1199 (Fairfax County Nov. 19, 2019).

Prenuptial agreement was found to be valid and enforceable because a wife failed to establish by clear and convincing evidence that she signed involuntarily; the wife had an understanding of the rights she was waiving under the agreement, based upon her repeated discussions with the husband, her attending a meeting with an attorney, her discussing the concepts of protecting the husband's business assets and deferring on alimony and expressly excluding certain jointly acquired assets. Dwoskin v. Dwoskin, 104 Va. Cir. 41, 2019 Va. Cir. LEXIS 1199 (Fairfax County Nov. 19, 2019).

Claim barred. - Declaratory judgment claim was time-barred under subsection A of § 8.01-243 because the underlying action was fraud, and it was not filed until 2012, but the alleged fraud reasonably should have been discovered by January 2006. Sun Hotel v. Summitbridge Credit Invs. III, LLC, 86 Va. Cir. 189, 2013 Va. Cir. LEXIS 4 (Fairfax County Jan. 23, 2013).

§ 8.01-184.1. Declaratory judgment to adjudicate constitutional nexus.

Circuit courts shall have original jurisdiction over civil actions seeking declaratory judgment where:
1. The party seeking declaratory relief is a business that (i) is organized under the laws of the Commonwealth or a sole proprietorship owned by a Commonwealth domiciliary, or (ii) has qualified to do business in the Commonwealth; and
2. The responding party is a government official of another state, or political subdivision of another state, who asserts that the business in question is or was in the past obliged to collect sales or use taxes for such state or political subdivision based upon conduct of the business occurring wholly or partially within the Commonwealth.
Any business meeting the requirements and facing the circumstances described in subsection A shall be entitled to declaratory relief on the issue of whether the requirement of another state, or political subdivision of another state, that the business collect and remit sales or use taxes to that state, or political subdivision, in the factual circumstances of the business' operations giving rise to the demand, constitutes an undue burden on interstate commerce within the meaning of Article I, Section 8, Clause 3 of the United States Constitution.
Any government official meeting the requirements of subdivision A 2 shall be subject to the personal jurisdiction of Virginia circuit courts to the extent permitted by the Constitution of the United States. This subsection shall govern personal jurisdiction in actions under this section, and shall constitute authorization for purposes of § 8.01-330 . (2004, cc. 609, 647; 2005, cc. 736, 800.)

Editor's note. - Acts 2005, cc. 736 and 800, cls. 2, provide: "That the provisions of this act are declaratory of existing law."

The 2005 amendments. - The 2005 amendments by cc. 736 and 800 are identical, and in subdivision A 2, inserted "or was in the past," and substituted "occurring" for "that occurs"; and added subsection C.

Law review. - For 2003/2004 survey of the law of taxation, see 39 U. Rich. L. Rev. 413 (2004).

For annual survey of Virginia law on taxation, see 40 U. Rich. L. Rev. 291 (2005).

§ 8.01-185. Venue.

The venue of actions seeking declarations of right with or without consequential relief shall be determined in accordance with provisions of Chapter 5 (§ 8.01-257 et seq.) of this title.

(Code 1950, § 8-579; 1954, c. 333; 1977, c. 617.)

REVISERS' NOTE.

The special venue provision of former § 8-579 has been changed and venue will be determined in accordance with the general venue provisions of chapter 5, §§ 8.01-257 ff.

Former § 8-580 (Procedure) has been deleted as unnecessary.

________

CIRCUIT COURT OPINIONS

Venue proper. - Because the circuit court had personal jurisdiction over relatives based upon their minimum contacts with Virginia, venue was properly laid in Virginia in a lawyer's declaratory judgment action under the Virginia Declaratory Judgment Act, § 8.01-184 et seq., seeking a declaratory judgment regarding his rights and responsibilities under powers of attorney; the relatives executed the powers of attorney in Virginia and returned to Virginia to meet again with the lawyer, and by voluntarily creating a continuing relationship with the lawyer, who maintained an office and performed work for the relatives in Virginia, the relatives purposefully availed themselves of the privilege of conducting activities within the Commonwealth. Tabet v. Sheban, 83 Va. Cir. 89, 2011 Va. Cir. LEXIS 75 (Fairfax County June 9, 2011).

§ 8.01-186. Further relief.

Further relief based on a declaratory judgment order or decree may be granted whenever necessary or proper. The application shall be by motion to a court having jurisdiction to grant the relief. If the application is deemed sufficient the court shall, on reasonable notice, require an adverse party whose rights have been adjudicated by the declaration of right to show cause why further relief should not be granted forthwith.

(Code 1950, § 8-581; 1977, c. 617.)

Law review. - For annual survey of Virginia law article, "Local Government Law," see 47 U. Rich. L. Rev. 257 (2012).

Michie's Jurisprudence. - For related discussion, see 11A M.J. Judgments and Decrees, § 219.

CASE NOTES

The phrase "further relief" in this section does not authorize a court to award attorney's fees to a litigant. Russell County Dep't of Social Servs. v. Quinn, 259 Va. 139 , 523 S.E.2d 492 (2000).

The provisions of the former version of this section clearly contemplate further action to enforce the rights determined by a declaratory judgment. Winborne v. Doyle, 190 Va. 867 , 59 S.E.2d 90 (1950) (decided under prior law).

The relief contemplated and provided for by § 8.01-184 is not limited to a bare declaration of rights. In a proper case under that section and this section, such consequential, other, and additional relief as is justified by the pleadings, and by the private or public rights and interests involved, may be awarded. Dean v. Paolicelli, 194 Va. 219 , 72 S.E.2d 506 (1952) (decided under prior law).

Remedy not exclusive. - The remedy for enforcement of the rights determined by the declaratory judgment prescribed by this section is not exclusive. Such a proceeding is intended to supplement rather than supersede ordinary causes of action. Winborne v. Doyle, 190 Va. 867 , 59 S.E.2d 90 (1950) (decided under prior law).

Illustrative case. - For case as to the sufficiency of a bill for declaratory judgment and further relief where the plaintiff sought the cancellation or annulment of an easement, see First Nat'l Trust & Sav. Bank v. Raphael, 201 Va. 718 , 113 S.E.2d 683 (1960) (decided under prior law).

Applied in Indian Creek Monument Sales v. Adkins, 301 F. Supp. 2d 555, 2004 U.S. Dist. LEXIS 1923 (W.D. Va. 2004).

CIRCUIT COURT OPINIONS

Easement dispute. - Owner's plea in abatement as to plaintiff's claim of an easement over the owner's property was denied because the court's refusal to resolve the dispute would have given rise to uncertainty over what rights, if any, could have been asserted by the parties, and § 8.01-186 provided authority to the court to grant declaratory relief that was necessary or proper; declaratory relief was proper even if other legal redress was available to plaintiff. Estes v. Powell, 73 Va. Cir. 370, 2007 Va. Cir. LEXIS 104 (Madison County 2007).

§ 8.01-187. Commissioners or condemnation jurors to determine compensation for property taken or damaged.

Whenever it is determined in a declaratory judgment proceeding that a person's property has been taken or damaged within the meaning of Article I, Section 11 of the Constitution of Virginia and compensation has not been paid or any action taken to determine the compensation within 60 days following the entry of such judgment order or decree, the court which entered the order or decree may, upon motion of such person after reasonable notice to the adverse party, enter a further order appointing commissioners or condemnation jurors to determine the compensation. The appointment of commissioners or condemnation jurors and all proceedings thereafter shall be governed by the procedure prescribed for the condemning authority. Notwithstanding the provisions of § 25.1-100 , the date of valuation in actions pursuant to this section shall be the date determined by the court to be the date the property was taken or damaged.

(Code 1950, § 8-581.1; 1968, c. 782; 1971, Ex. Sess., c. 1; 1977, c. 617; 2007, cc. 450, 720; 2010, c. 835; 2014, c. 618.)

Cross references. - As to reimbursement of the plaintiff for costs, expenses, etc., incurred in a proceeding under this section, see § 25.1-420 .

The 2007 amendments. - The 2007 amendments by cc. 450 and 720 are identical, and substituted "Condemnation jurors" for "Commissioners" in the section catchline; and substituted "condemnation jurors" for "commissioners" in the first and last sentences.

The 2010 amendments. - The 2010 amendments by c. 835, applicable only to actions filed on or after July 1, 2010, twice inserted "commissioners or" and made a stylistic change.

The 2014 amendments. - The 2014 amendment by c. 618 added the last sentence.

Law review. - For 2007 annual survey article, "Civil Practice and Procedure," see 42 U. Rich. L. Rev. 229 (2007).

Michie's Jurisprudence. - For related discussion, see 7A M.J. Eminent Domain, § 99; 11A M.J. Judgments and Decrees, § 219; 12B M.J. Mandamus, §§ 15, 31.

CASE NOTES

I. General Consideration.
II. Sovereign Immunity.

I. GENERAL CONSIDERATION.

This section is a remedial statute. It disturbs no vested rights and creates no new obligation. It merely supplies another remedy to enforce existing rights. See Stroobants v. Fugate, 209 Va. 275 , 163 S.E.2d 192 (1968); Chaffinch v. C & P Tel. Co., 227 Va. 68 , 313 S.E.2d 376 (1984) (decided under prior law).

Statutory remedy does not preempt common-law remedies against a nonsovereign entity vested with the power of eminent domain unless the statute, expressly or by necessary implication, so provides. Chaffinch v. C & P Tel. Co., 227 Va. 68 , 313 S.E.2d 376 (1984).

In an action for damages following the demolition of a residential building, the property owner's failure to exhaust administrative remedies barred any claim for inverse condemnation under § 8.01-187 where during the 107 days that elapsed from receipt of the notice until demolition, the property owner made no inquiries about any appeal rights and took no actions to avail himself thereof. Lee v. City of Norfolk, 281 Va. 423 , 706 S.E.2d 330, 2011 Va. LEXIS 55 (2011).

Mandamus will not lie to compel the Highway Commissioner to institute condemnation proceedings in the proper court to ascertain what compensation is due petitioners for the damages that they allege have been done to their property by the acts of the respondent, since the cause of action asserted by the petitioners can be resolved in a declaratory judgment proceeding in a lower court. Stroobants v. Fugate, 209 Va. 275 , 163 S.E.2d 192 (1968) (decided under prior law).

Diminution in value not sufficient to establish taking. - In inverse condemnation actions, as property owners did not allege that the presence of a public utility's transmission lines interfered with their ability to exercise any specific property right, but that the transmission lines rendered their land less valuable as residential property; they did not state a claim for a "taking" under Va. Const. art. I, § 11. Byler v. Va. Elec. & Power Co., 284 Va. 501 , 731 S.E.2d 916, 2012 Va. LEXIS 167 (2012).

Section applicable though not in force when cause of action arose. - While this section was not in force when petitioners' cause of action arose, it became effective on June 28, 1968, and they are entitled to avail themselves of the procedure outlined therein. Stroobants v. Fugate, 209 Va. 275 , 163 S.E.2d 192 (1968) (decided under prior law).

Relationship with other laws. - This section is not the exclusive remedy for claimants making an inverse condemnation claim against a political subdivision of the Commonwealth. The provisions of Va. Const., Art. I, § 11 are self-executing. The enactment of § 8.01-187 does not change that analysis or evidence an intent on the part of the General Assembly to limit the right to make the constitutional takings claim. Kitchen v. City of Newport News, 275 Va. 378 , 657 S.E.2d 132, 2008 Va. LEXIS 38 (2008).

Circuit court erred in holding that this section constituted an inverse condemnation and was claimant's exclusive remedy against a municipal corporation where the provisions of Va. Const., Art. I, § 11 were self-executing and § 8.01-187 disturbed no vested rights and created no new obligation. Section 8.01-187 merely supplied another remedy to enforce existing rights. Kitchen v. City of Newport News, 275 Va. 378 , 657 S.E.2d 132, 2008 Va. LEXIS 38 (2008).

Applied in Northern Va. Law Sch., Inc. v. City of Alexandria, 680 F. Supp. 222 (E.D. Va. 1988).

II. SOVEREIGN IMMUNITY.

Waiver of sovereign immunity from inverse condemnation claims. - The just-compensation clause of Va. Const., Art. I, § 11, constitutes a waiver of sovereign immunity from inverse condemnation claims, and this section creates a statutory mechanism for the enforcement of such claims. Chaffinch v. C & P Tel. Co., 227 Va. 68 , 313 S.E.2d 376 (1984).

Public service companies have never enjoyed immunity from liability for damaging private property, the power of eminent domain entrusted to them by § 56-464 confers none, and there is nothing in the language of this section or the annals of legislative history which reflects legislative intent to immunize them from actions at common law. Chaffinch v. C & P Tel. Co., 227 Va. 68 , 313 S.E.2d 376 (1984).

CIRCUIT COURT OPINIONS

Landowners entitled to proceeding to determine just compensation. - Landowners established damage under Va. Const., Art. I, § 11, and that, if not compensated, they were entitled to a proceeding under § 8.01-187 to determine just compensation as the property had suffered a significant increase in volume, frequency, and vibrations from noise due to aircraft flying directly overhead, there was no requirement that the damage be significant, and the exact amount of damages was not important as the landowners sought a declaratory judgment. Osipovs v. Chesapeake Airport Auth., 74 Va. Cir. 350, 2007 Va. Cir. LEXIS 295 (Chesapeake 2007).

No right to jury trial existed. - Because a property owner lacked any right to a jury trial in its suit against the Commonwealth under the Just Compensation Clause, Va. Const., Art. I, § 11, the action was to proceed on the Commonwealth's terms, pursuant to the plain meaning of § 8.01-187 . Moreover, the instant court lacked any power to effect a more expansive waiver of immunity than provided for by the Commonwealth itself. Catholic Diocese v. Commonwealth Transp. Comm'r, 74 Va. Cir. 154, 2007 Va. Cir. LEXIS 245 (Alexandria 2007).

§ 8.01-188. Jury trial.

When a declaration of right or the granting of further relief based thereon shall involve the determination of issues of fact triable by a jury, such issues may be submitted to a jury in the form of interrogatories, with proper instructions by the court, whether a general verdict be required or not.

(Code 1950, § 8-582; 1977, c. 617.)

Law review. - For an article, "Civil Practice and Procedure," see 32 U. Rich. L. Rev. 1009 (1998).

CASE NOTES

This section addresses only the form in which an issue of fact may be submitted to a jury, and does not provide a party in a declaratory judgment suit a separate right to a binding jury verdict. Angstadt v. Atlantic Mut. Ins. Co., 254 Va. 286 , 492 S.E.2d 118 (1997).

Applied in Bartolomucci v. Fed. Ins. Co., 289 Va. 361 , 770 S.E.2d 451, 2015 Va. LEXIS 50 (2015).

§ 8.01-189. Injunction.

The pendency of any action at law or suit in equity brought merely to obtain a declaration of rights or a determination of a question of construction shall not be sufficient grounds for the granting of any injunction.

(Code 1950, § 8-583; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 11A M.J. Judgments and Decrees, § 219.

CASE NOTES

Suit held pure bill for injunction. - A suit for declaratory judgment and injunction against threatened actions at law was really a pure bill for an injunction. It asked the chancellor to try a disputed question of fact as a determinative issue, and to substitute a suit in equity for several actions at law, although it alleged that there was an absolute defense in each action, pleadable at law. A court of equity will not enjoin the prosecution of an action at law when the defendant can make a full and adequate defense in such action. A suit at law cannot be enjoined and the litigation transferred to the equity forum merely on the assertion of defenses that are pleadable at law. An action at law will not be enjoined except where a court of chancery may afford a more adequate and perfect remedy. Williams v. Southern Bank, 203 Va. 657 , 125 S.E.2d 803 (1962) (decided under prior law).

Demurrer on ground that prayer for injunction violated section not good. - A bill for divorce, by a husband against his wife, asked for a construction of a separation contract between the husband and wife and a deed of trust executed in pursuance of the contract, and also asked for an injunction against the enforcement of the contract and the deed of trust. The wife demurred on the ground that the prayer for the injunction was in violation of the former version of this section, which provides that the pendency of an action or suit to obtain a declaration of rights or a determination of a question of construction should not be sufficient grounds for the granting of an injunction. It was held that this was not a good ground of demurrer. Gloth v. Gloth, 154 Va. 511 , 153 S.E. 879 (1930) (decided under prior law).

CIRCUIT COURT OPINIONS

Attorney's fees. - Where there was no contractual provision or statutory authority to the contrary and there was no bad faith, the neighbors' request for attorney's fees as the prevailing party in an action for injunctive relief was denied. Goff v. Hooker, 62 Va. Cir. 338, 2003 Va. Cir. LEXIS 279 (Roanoke County 2003).

§ 8.01-190. Costs.

The costs, or such part thereof as the court may deem proper and just in view of the particular circumstances of the case, may be awarded to any party.

(Code 1950, § 8-584; 1977, c. 617.)

§ 8.01-191. Construction of article.

This article is declared to be remedial. Its purpose is to afford relief from the uncertainty and insecurity attendant upon controversies over legal rights, without requiring one of the parties interested so to invade the rights asserted by the other as to entitle him to maintain an ordinary action therefor. It is to be liberally interpreted and administered with a view to making the courts more serviceable to the people.

(Code 1950, § 8-585; 1977, c. 617.)

Law review. - For comment on challenging rezoning in Virginia, see 15 U. Rich. L. Rev. 423 (1981).

For survey of the Virginia law on administrative law for the year 2007-2008, see 43 U. Rich. L. Rev. 73 (2008).

Michie's Jurisprudence. - For related discussion, see 11A M.J. Judgments and Decrees, § 218.

CASE NOTES

I. Decisions Under Current Law.
II. Decisions Under Prior Law.

I. DECISIONS UNDER CURRENT LAW.

This section and § 8.01-184 are to be liberally interpreted and administered with a view to making the courts more serviceable to the people. Board of Supvrs. v. Southland Corp., 224 Va. 514 , 297 S.E.2d 718 (1982).

Trial court incorrectly held that declaratory judgment was not available to construe provision of written lease to determine whether continued occupancy of certain premises would subject lessee to liability for continuing damages, and his employees and customers to criminal liability for trespass; lessee was entitled to declaratory judgment action given unavailability of any remedy by customary processes and liberal construction of this section. Hop-In Food Stores, Inc. v. Serv-N-Save, Inc., 237 Va. 206 , 375 S.E.2d 753 (1989).

Declaratory judgment proper for review of dispute between county and town. Declaratory judgment under § 8.01-191 was the proper vehicle for review of a dispute between a town and a county over the respective authority under a joint comprehensive master plan created pursuant to § 15.2-2231 ; the planning process, as distinct from the zoning process, was joint under §§ 15.2-2232 and 15.2-2223 . Bd. of Supervisors v. Town of Purcellville, 276 Va. 419 , 666 S.E.2d 512, 2008 Va. LEXIS 100 (2008).

Award of attorney's fees not authorized. - Although the plain language in this section requires that the courts interpret and administer the Declaratory Judgment Act with a view to making the courts more serviceable to the people, this does not authorize a court to make an award of attorney's fees. Russell County Dep't of Social Servs. v. Quinn, 259 Va. 139 , 523 S.E.2d 492 (2000).

Applied in Board of Supvrs. v. Fralin & Waldron, Inc., 222 Va. 218 , 278 S.E.2d 859 (1981); Blodinger v. Broker's Title, Inc., 224 Va. 201 , 294 S.E.2d 876 (1982); Reisen v. Aetna Life & Cas. Co., 225 Va. 327 , 302 S.E.2d 529 (1983); Cupp v. Board of Supvrs., 227 Va. 580 , 318 S.E.2d 407 (1984); Hoffman Family, L.L.C. v. Mill Two Assocs. Pshp., 259 Va. 685 , 529 S.E.2d 318, 2000 Va. LEXIS 72 (2000); Miller v. Highland County, 274 Va. 355 , 650 S.E.2d 532, 2007 Va. LEXIS 119 (2007); D'Ambrosio v. Wolf, 295 Va. 48 , 809 S.E.2d 625, 2018 Va. LEXIS 8 (2018).

II. DECISIONS UNDER PRIOR LAW.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The terms "this section" and "this article," as used below, refer to former provisions.

Intent of this article is not to give parties greater rights than those which they previously possessed, but to permit the declaration of those rights before they mature. Fairfield Dev. Corp. v. City of Virginia Beach, 211 Va. 715 , 180 S.E.2d 533 (1971).

The intent of this article is to have courts render declaratory judgments which may guide parties in their future conduct in relation to each other, thereby relieving them from the risk of taking undirected action incident to their rights, which action, without direction, would jeopardize their interests. This is with a view rather to avoid litigation than in aid of it. Fairfield Dev. Corp. v. City of Virginia Beach, 211 Va. 715 , 180 S.E.2d 533 (1971).

This article is remedial and is to be liberally construed and administered. Criterion Ins. Co. v. Grange Mut. Cas. Co., 210 Va. 446 , 171 S.E.2d 669 (1970).

The construction of this article, while liberal, must be reasonable and confined within definite limits. Declaratory judgments are not to be used as instruments of procedural fencing, either to secure delay or to choose a forum. Williams v. Southern Bank, 203 Va. 657 , 125 S.E.2d 803 (1962).

The declaratory judgment acts do not create or change any substantive rights, or bring into being or modify any relationships, or alter the character of controversies, which are the subject of judicial power. Their construction, while liberal, must be reasonable and confined within definite limits. They are not to be used as instruments of procedural fencing, either to secure delay or to choose a forum. Liberty Mut. Ins. Co. v. Bishop, 211 Va. 414 , 177 S.E.2d 519 (1970).

Power to make declaratory judgment is discretionary. - While the courts have, in obedience to this section, given a liberal interpretation to the Declaratory Judgment Act, they have nevertheless recognized that the power to make a declaratory judgment is a discretionary one and must be exercised with care and caution. Fairfield Dev. Corp. v. City of Virginia Beach, 211 Va. 715 , 180 S.E.2d 533 (1971).

And it will not be exercised where some other mode of proceeding is provided. Hence, where the petitioners, in essence, were seeking a money judgment for a sum certain, and the court had nothing to determine that would guide the parties in their future conduct in relation to each other, but each petitioner had paid the fee, and the only issue to be determined was whether it was entitled to have the fees refunded, their remedy was by motion for judgment and not by petition for declaratory judgment. Fairfield Dev. Corp. v. City of Virginia Beach, 211 Va. 715 , 180 S.E.2d 533 (1971).

CIRCUIT COURT OPINIONS

Standing to challenge ordinance. - Since the Declaratory Judgments Act is to be liberally interpreted, residential landlords' action seeking to have town's ordinance declared invalid was not barred on the ground that the terms of the ordinance had not been applied to them as they had a direct interest in the application of the ordinance because it affected their rental properties. Logie v. Town of Front Royal, 58 Va. Cir. 527, 2002 Va. Cir. LEXIS 174 (Warren County 2002).

Standing of county board of supervisors. - County board of supervisors had standing to challenge the actions of a county board of zoning appeals (BZA) through declaratory relief because it had "aggrieved party" status by virtue of the action decided against it, and declaratory relief would determine the lawfulness of the process the BZA used; no other mode of procedure was available to the board of supervisors to challenge directly and reach the course of the BZA procedure employed and the question of its claimed authority to reconsider its decisions. Bd. of Supervisors v. Bd. of Zoning Appeals,, 2018 Va. Cir. LEXIS 23 (Fairfax County Feb. 13, 2018).

First, there must be an actual controversy to which the board of supervisors is a party, and the court is not empowered to render merely advisory opinions; second, declaratory relief can only be exercised if it will relieve the board from the risk of the board of zoning appeals taking undirected action that would jeopardize the lawful and legitimate interests of the board. Bd. of Supervisors v. Bd. of Zoning Appeals,, 2018 Va. Cir. LEXIS 23 (Fairfax County Feb. 13, 2018).

Liberal interpretation. - A tenant's motion for a demurrer pursuant to § 8.01-273 as to a landlord's declaratory judgment action pursuant to § 8.01-184 was denied, because § 8.01-191 stated that the declaratory judgment statute was remedial in nature and had to be liberally interpreted, and the declaratory judgment statute permitted a party like the landlord to seek the court's guidance on a landlord/tenant relationship, the pleadings stated a cause of action upon which relief could be granted, and the claims of each party were adverse to the other and were ripe for adjudication. Truslow, Inc. v. Gibbs, 59 Va. Cir. 472, 2002 Va. Cir. LEXIS 357 (Richmond Oct. 3, 2002).

Actual controversy existed. - Dentist had standing to challenge his non-compete agreements with a corporation through a bill of complaint seeking a declaratory judgment declaring that the agreements were overbroad and unenforceable and alleging that he wished to violate the agreements; the corporation demurred, implying that it intended to enforce the agreements. Thus, there was an actual, justiciable controversy. Graves v. Ciraden, Inc., 65 Va. Cir. 127, 2004 Va. Cir. LEXIS 152 (Fairfax County 2004).

Declaratory judgment action by traffic violators who challenged the constitutionality of the remedial driver fees in § 46.2-206.1 withstood a dismissal challenge on the basis of sovereign immunity, as at least two of the violators had been convicted and as such, they had a direct and justiciable interest in the subject matter of the action; there was an actual controversy and as the only issues related to the constitutionality of the legislation and nothing more was sought from the Commonwealth, pursuant to §§ 8.01-184 and 8.01-191 the action was viable. Minter v. Commonwealth, 74 Va. Cir. 336, 2007 Va. Cir. LEXIS 194 (Roanoke County 2007).

Failure to allege justiciable controversy. - Circuit court did not have the authority to exercise jurisdiction over a substitute teacher's requests for declaratory relief because the teacher failed to allege a justiciable controversy; the teacher did not allege that the county public schools failed to interpret § 22.1-296.1 as an affirmative obligation regarding the language required in their employment application, and there was no statutory avenue for the teacher to challenge a nonrenewal of her contract. Flinn v. Fairfax County Sch. Bd., 87 Va. Cir. 262, 2013 Va. Cir. LEXIS 102 (Fairfax County Nov. 14, 2013).

Pleadings taken as a whole did not adequately advise a county or the circuit court of how town officials' claimed an actual controversy or antagonistic assertion and denial of right between themselves and the county, which would give the circuit court reason to exercise its discretionary right to hear the matter as a declaratory judgment action. Town of White Stone v. Cty. of Lancaster, 97 Va. Cir. 309, 2002 Va. Cir. LEXIS 480 (Lancaster County Oct. 10, 2002).

Declaratory relief not proper. - While the Declaratory Judgment Act was to be liberally interpreted and administered with a view to making the courts more serviceable to the people, courts may only issue declaratory judgments in cases of actual controversy when there was antagonistic assertion and denial of right; thus, the Declaratory Judgment Act did not give trial courts the authority to render advisory opinions, decide moot questions, or answer inquiries that were merely speculative. Although the investor alleged that there was a question of whether he and the limited liability company's member were legally associated and that the investor's rights in the artists were affected thereby, there was nothing about the allegations which required direction lest the parties' actions would be jeopardized; moreover, the case was not a proper one for declaratory relief without the presence of the limited liability company since rights to the artists and royalties were due the limited liability company. Schur v. Sprenkle, 84 Va. Cir. 418, 2012 Va. Cir. LEXIS 132 (Richmond Apr. 11, 2012).

Declaratory relief. - Pursuant to §§ 8.01-184 and 8.01-191 , a demurrer was denied as to defendants' counterclaim requesting declaratory relief, specifically, a declaration that an easement granted them boat access from their property to a channel. Wessynton Homes Ass'n v. Burke, 79 Va. Cir. 365, 2009 Va. Cir. LEXIS 128 (Fairfax County Oct. 5, 2009).

Declaratory judgment denied. - Demurrer filed by the beneficiary of a deed of trust was sustained in a mortgagor's action seeking a declaratory judgment that the foreclosure of her property was unlawful because the plain language in the deed of trust authorized the beneficiary to foreclose on the property in the event that the mortgagor defaulted on the loan, and the deed of trust specifically authorized the beneficiary to appoint a substitute trustee to conduct foreclosure proceedings; by signing the deed of trust, the mortgagor agreed that the beneficiary, as nominee for the lender and the lender's successors and assigns, had the right to foreclose on the property and recognized that the beneficiary could take any action required of the lender. Graves v. Mortg. Elec. Registration Sys., 96 Va. Cir. 457, 2011 Va. Cir. LEXIS 97 (Fairfax County June 29, 2011).

Estoppel. - Although a property owner satisfied the standing requirement necessary for a grant declaratory relief under §§ 8.01-184 and 8.01-191 because the owner's claim related to restrictions on development of the owner's land, was not merely speculative and the owner did not need to exhaust its administrative remedies, while the owner's subdivision application was pending, the owner was estopped from proceeding with the declaratory action since it rendered the need for court intervention illusory and advisory. Broad Run Vill., L.C. v. Loudoun County Bd. of Supervisors, 59 Va. Cir. 96, 2002 Va. Cir. LEXIS 331 (Louisa County May 8, 2002).

Dismissal. - Because a defendant properly pleaded a statute of limitations defense under § 8.01-235 , and pursuant to § 8.01-281 and Va. Sup. Ct. R. 4:13(8) ruling on a plea at bar did not have to be deferred until the date of trial, the plaintiff's petition for declaratory judgment under § 8.01-191 was dismissed. Trivedi v. Pansuria, 72 Va. Cir. 220, 2006 Va. Cir. LEXIS 196 (Chesterfield County 2006).

Article 18. Recovery of Claims Against the Commonwealth of Virginia.

§ 8.01-192. How claims to be prosecuted.

When the Comptroller or other authorized person shall disallow, either in whole or in part, any such claim against the Commonwealth as is provided for by §§ 2.2-814 , 2.2-815 or 8.01-605 at which time a right of action under this section shall be deemed to accrue, the person presenting such claim may petition an appropriate circuit court for redress.

(Code 1950, § 8-752; 1966, c. 452; 1977, c. 617.)

REVISERS' NOTE.

The requirement of former § 8-752 that a claim against the State be brought only in the Circuit Court of the city of Richmond has been changed. Section 8.01-192 permits such a claim to be brought in "an appropriate circuit court." The sentence beginning with "and when a person has any other claim. . ." in former § 8-752 has been deleted. The intent of the statute is confined to only "pecuniary claims" and thus would not include "any other claims" against the Commonwealth.

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Cross references. - As to the liability of the salary of an officer for a debt he owes the Commonwealth, see § 2.2-2816 .

Law review. - For survey of Virginia law on torts for the year 1972-1973, see 59 Va. L. Rev. 1590 (1973). For survey of Virginia administrative law for the year 1973-1974, see 60 Va. L. Rev. 1446 (1974). For a re-examination of sovereign tort immunity in Virginia, see 15 U. Rich. L. Rev. 247 (1981).

For note on the abrogation of sovereign immunity in Virginia: The Virginia Tort Claims Act, see 7 G.M.U. L. Rev. 291 (1984).

CASE NOTES

I. Decisions Under Current Law.
II. Decisions Under Prior Law.
- A. General Consideration.
- B. Actions Based Upon Exercise of Eminent Domain Power.

I. DECISIONS UNDER CURRENT LAW.

There is no reason to vitiate the right of the state not to be subject to suit in her own courts by a broad and unwarranted interpretation of the legislative intent behind the limited waiver of sovereign immunity in this section. Commonwealth v. Luzik, 259 Va. 198 , 524 S.E.2d 871 (2000).

For discussion of doctrine of sovereign immunity, see Hinchey v. Ogden, 226 Va. 234 , 307 S.E.2d 891 (1983).

Immunity from suit in federal court. - The Commonwealth, never having waived her immunity under U.S. Const., Amend. XI, is not amenable to a suit for damages in federal court, even when the basis for such suit is a claimed violation of 42 U.S.C. § 1983. Only officials of the Commonwealth may be enjoined from acts that violate the Constitution. Croatan Books, Inc. v. Virginia, 574 F. Supp. 880 (E.D. Va. 1983).

Eleventh Amendment immunity not waived. - Virginia has not waived its Eleventh Amendment immunity. This section, which generally governs recovery of claims against the State, waives sovereign immunity in actions brought in Virginia courts. But it does not express the clear legislative intent necessary to constitute a waiver of Eleventh Amendment immunity. McConnell v. Adams, 829 F.2d 1319 (4th Cir. 1987), cert. denied, 486 U.S. 1006, 108 S. Ct. 1731, 100 L. Ed. 2d 195 (1988).

Nothing in Virginia cases interpreting this section suggests that it should be applied in circumstances other than in claims properly instituted under this section and the scheme provided for pursuing such claims in §§ 8.01-193 to 8.01-195 . Commonwealth v. Luzik, 259 Va. 198 , 524 S.E.2d 871 (2000).

Even if employee's claim for back wages was subject to sovereign immunity under this section, complainant's suit would still not satisfy the requirements for seeking payment of a contract debt from the state as prescribed by this section, where the suit was not brought in the style of a contract claim or in the manner prescribed for such claims by the statutory scheme. Commonwealth v. Luzik, 259 Va. 198 , 524 S.E.2d 871 (2000).

Waiver of immunity in state court does not necessarily operate as a consent to be sued in federal court. Jacobs v. College of William & Mary, 495 F. Supp. 183 (E.D. Va. 1980), aff'd, 661 F.2d 922 (4th Cir.), cert. denied, 454 U.S. 1033, 102 S. Ct. 572, 70 L. Ed. 2d 477 (1981).

Clear legislative intent to waive immunity in federal courts not expressed in section. - In order for a waiver of sovereign immunity to be found effective as to actions brought in a federal court, as well as to actions brought in the state's own courts, a clear legislative intent to that effect must be found. A "clear legislative intent" has not been expressed to extend the provisions of this section, effectively waiving the bar of sovereign immunity, to actions brought in federal court. Jacobs v. College of William & Mary, 495 F. Supp. 183 (E.D. Va. 1980), aff'd, 661 F.2d 922 (4th Cir.), cert. denied, 454 U.S. 1033, 102 S. Ct. 572, 70 L. Ed. 2d 477 (1981).

Immunity from suit for unlawful application of former § 13.1-93. - In deciding whether a state has waived its constitutional protection under U.S. Const., Amend. XI, waiver will be found only where stated by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction. Because there has been no such clear manifestation, indeed, because there has been no manifestation at all, of intent to waive this immunity on the part of the Commonwealth, her immunity prevents her being haled into federal court to answer a claim it conspired to shut down a business by unlawfully applying former § 13.1-93 to revoke its corporate charter. Croatan Books, Inc. v. Virginia, 574 F. Supp. 880 (E.D. Va. 1983).

Sovereign immunity has no application to valid contract actions. - The doctrine of sovereign immunity has no application in actions based upon valid contracts entered into by duly authorized agents of the government. The sovereign is as liable for its contractual debt as any citizen would be, and that liability may be enforced by suit in the "appropriate circuit court" if proper and timely proceedings are taken. Wiecking v. Allied Medical Supply Corp., 239 Va. 548 , 391 S.E.2d 258 (1990).

But the contractual relationship must be direct. - While contract suits against the Commonwealth were permitted to a limited extent, a direct contractual relationship was contemplated; thus, the trial court did not err in denying the surety's motions for judgment against the state transportation department, which the surety filed in an attempt to collect on work it performed after it took over work for the original contracting party after that party defaulted on the underlying construction projects, as the surety did not have a direct contractual relationship with the state transportation department and the surety could not show any Virginia law which waived the Commonwealth's sovereign immunity regarding the surety's equitable subrogation claim. XL Specialty Ins. Co. v. Commonwealth, 47 Va. App. 424, 624 S.E.2d 658, 2006 Va. App. LEXIS 14 (2006).

Injunctive relief as to future conduct of state officials. - The State's Eleventh Amendment immunity does not protect it from suits for injunctive relief governing its officials' future conduct. McConnell v. Adams, 829 F.2d 1319 (4th Cir. 1987), cert. denied, 486 U.S. 1006, 108 S. Ct. 1731, 100 L. Ed. 2d 195 (1988).

Construction with other laws. - The procurement act [see now § 2.2-4300 et seq.], is a specific statute relating to the acquisition of services by public bodies and prevails over the more general statutes relating to the presentation of pecuniary claims against the commonwealth, such as those found in this section and former § 2.1-223.1 [see now subsection A of § 2.2-814 ]. Dr. William E.S. Flory Small Bus. Dev. Ctr., Inc. v. Commonwealth, 261 Va. 230 , 541 S.E.2d 915, 2001 Va. LEXIS 39 (2001).

Plaintiff employee could not state a claim for wrongful termination or breach of contract because he never presented his pecuniary claim to the president of University of Virginia (the president was the head of the institution of the Commonwealth responsible for the alleged act giving rise to the employee's claim), as required by § 2.2-814 . Cominelli v. Rector & Visitors of the Univ. of Va., 589 F. Supp. 2d 706, 2008 U.S. Dist. LEXIS 99428 (W.D. Va. 2008), aff'd, 362 Fed. Appx. 359, 2010 U.S. App. LEXIS 1562 (4th Cir. Va. 2010).

Applied in XL Specialty Ins. Co. v. DOT, 269 Va. 362 , 611 S.E.2d 356, 2005 Va. LEXIS 38 (2005).

II. DECISIONS UNDER PRIOR LAW.

A. GENERAL CONSIDERATION.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The terms "this article" and "this section," as used below, refer to former provisions.

The State cannot be sued without its consent. Stuart v. Smith-Courtney Co., 123 Va. 231 , 96 S.E. 241 (1918).

Even if a suit in form be against the state's officers and agents, yet if in effect it be against the State, it is not maintainable except by the state's permission. Sayers v. Bullar, 180 Va. 222 , 22 S.E.2d 9 (1942); Eriksen v. Anderson, 195 Va. 655 , 79 S.E.2d 597 (1954); Davis v. Marr, 200 Va. 479 , 106 S.E.2d 722 (1959).

This section expressly gives such consent for suits upon certain claims. Stuart v. Smith-Courtney Co., 123 Va. 231 , 96 S.E. 241 (1918).

Ever since 1778 all persons have enjoyed, by express statute, this right to sue the State. Parsons v. Commonwealth, 80 Va. 163 (1885).

The statute will be liberally construed. Green v. Marye, 112 Va. 352 , 71 S.E. 555 (1911); Stuart v. Smith-Courtney Co., 123 Va. 231 , 96 S.E. 241 (1918); Commonwealth v. Chilton Malting Co., 154 Va. 28 , 152 S.E. 336 (1930).

When doctrine of sovereign immunity applies. - Where judgment would act directly against the state, and the state is the real party in interest, the doctrine of sovereign immunity applies regardless of the status of the named defendant. Medicenters of Am., Inc. v. Virginia, 373 F. Supp. 305 (E.D. Va. 1974).

Exclusivity of provisions. - This chapter provides the only cases and procedure in which actions may be maintained against the State. Sayers v. Bullar, 180 Va. 222 , 22 S.E.2d 9 (1942); Eriksen v. Anderson, 195 Va. 655 , 79 S.E.2d 597 (1954).

Procedure under this article is provided for in the three sections immediately following. Stuart v. Smith-Courtney Co., 123 Va. 231 , 96 S.E. 241 (1918).

Applicable to pecuniary obligations based upon contracts. - If it is alleged that out of the exercise of governmental discretion there arises a pecuniary obligation of the State, based upon a contract, the Circuit Court of the City of Richmond is open for the determination of that issue. Stuart v. Smith-Courtney Co., 123 Va. 231 , 96 S.E. 241 (1918).

The State will not be astute to escape inquiry into its liability for its alleged contracts, or to take advantage of technical defenses which are permissible to other litigants. Stuart v. Smith-Courtney Co., 123 Va. 231 , 96 S.E. 241 (1918); Western State Hosp. v. Mackey, 151 Va. 495 , 145 S.E. 419 (1928); Commonwealth v. Chilton Malting Co., 154 Va. 28 , 152 S.E. 336 (1930).

Waiver of immunity in state courts does not necessarily operate as a consent to be sued in federal court. Medicenters of Am., Inc. v. Virginia, 373 F. Supp. 305 (E.D. Va. 1974).

A state has the power to waive sovereign immunity in state courts without affecting sovereign immunity in federal courts. Medicenters of Am., Inc. v. Virginia, 373 F. Supp. 305 (E.D. Va. 1974).

Clear legislative intent to waive immunity in federal courts not expressed in section. - In order for a waiver of sovereign immunity to be found effective as to actions brought in a federal court, as well as to actions brought in the state's own courts, a clear legislative intent to that effect must be found. A "clear legislative intent" has not been expressed to extend the provisions of this section, effectively waiving the bar of sovereign immunity, to actions brought in federal court. Medicenters of Am., Inc. v. Virginia, 373 F. Supp. 305 (E.D. Va. 1974).

The claims dealt with by this section are those which are payable out of the state treasury in pursuance of appropriations made by law. Hence jurisdiction over an action against a state-created tunnel district and commission to recover compensation for damage to property was not limited to the Circuit Court of the City of Richmond. Morris v. Elizabeth River Tunnel Dist., 203 Va. 196 , 123 S.E.2d 398 (1962).

Proceedings based upon contracts will lie against the State and its agencies by authority of this statute. Stuart v. Smith-Courtney Co., 123 Va. 231 , 96 S.E. 241 (1918); Commonwealth v. Chilton Malting Co., 154 Va. 28 , 152 S.E. 336 (1930); Davis v. Marr, 200 Va. 479 , 106 S.E.2d 722 (1959).

Whether the claims be liquidated or unliquidated. - Under this section the State may be sued for any debt or claim due, whether liquidated or unliquidated. Higginbotham v. Commonwealth, 66 Va. (25 Gratt.) 627 (1874), cited in Parsons v. Commonwealth, 80 Va. 163 (1885).

But actions based upon torts are not authorized against the State, or its governmental agencies, by this section. Stuart v. Smith-Courtney Co., 123 Va. 231 , 96 S.E. 241 (1918); Commonwealth v. Chilton Malting Co., 154 Va. 28 , 152 S.E. 336 (1930); Sayers v. Bullar, 180 Va. 222 , 22 S.E.2d 9 (1942); Eriksen v. Anderson, 195 Va. 655 , 79 S.E.2d 597 (1954).

There is no statute in Virginia granting a right to sue the State for torts. The power to consent to suit for torts rests in the legislature and not in the judiciary. Elizabeth River Tunnel Dist. v. Beecher, 202 Va. 452 , 117 S.E.2d 685 (1961).

The fact that the Elizabeth River Tunnel District Act provides that it may sue and be sued cannot be advanced as an assertion of state waiver of immunity or state consent to suit for torts. Waiver of immunity cannot be implied from general statutory language or by implication. Elizabeth River Tunnel Dist. v. Beecher, 202 Va. 452 , 117 S.E.2d 685 (1961).

Damages may be recovered only from state officers personally, as a judgment against them in their official capacity would in essence be a judgment against the State of Virginia. Landman v. Royster, 354 F. Supp. 1302 (E.D. Va. 1973).

An action against state officers in their official capacity generally does not lie under 42 U.S.C. § 1983, since the State is not a "person" within the meaning of that statute. Landman v. Royster, 354 F. Supp. 1302 (E.D. Va. 1973).

Moreover, such a recovery is barred by the Eleventh Amendment, which prohibits suits against a state without its consent. Landman v. Royster, 354 F. Supp. 1302 (E.D. Va. 1973).

Action upon failure of Commonwealth to maintain highway crossover. - Where the owner of land abutting a limited access highway brought suit against the State Highway Commission (now Commonwealth Transportation Board) and the Commissioner to enjoin them from maintaining a "no left turn" sign at an opening in the median strip dividing the highway opposite complainant's property, and to recover damages, and complainant alleged that as part of the consideration for a strip of land conveyed by him for the highway the Commonwealth had agreed to construct and maintain permanently a crossover opposite his property so as to allow access to businesses located on his property from the far lane of the highway, the suit was essentially one against the Commonwealth asserting a claim for damages for breach of contract and as such cognizable only in the Circuit Court of the City of Richmond. Davis v. Marr, 200 Va. 479 , 106 S.E.2d 722 (1959).

Suit to enjoin clerk of court. - This section has no application to a suit to enjoin a clerk of court from receiving the money on an insufficient application to purchase delinquent lands, and from making a deed to the purchaser. Baker v. Briggs, 99 Va. 360 , 38 S.E. 277 (1901).

B. ACTIONS BASED UPON EXERCISE OF EMINENT DOMAIN POWER.

Action may be brought under Va. Const., Art. I, § 11, against agency having power of eminent domain. - A common-law action may be successfully maintained under Va. Const., Art. I, § 11, against an agency of the State clothed with the power of eminent domain to recover compensation for damage done to property by such agency in effecting a public improvement. Heldt v. Elizabeth River Tunnel Dist., 196 Va. 477 , 84 S.E.2d 511 (1954); Morris v. Elizabeth River Tunnel Dist., 203 Va. 196 , 123 S.E.2d 398 (1962).

Such action is not based on tort liability. - An action against an agency of the State to recover compensation for property taken or damaged for public uses is not an action predicated on tort liability or negligence. Rather it is based on Va. Const., Art. I, § 11. Morris v. Elizabeth River Tunnel Dist., 203 Va. 196 , 123 S.E.2d 398 (1962).

Va. Const., Art. I, § 11 and eminent domain statutes inapplicable to tortious or unlawful acts. - Where petitioners sought to mandamus to compel Highway Commissioner (now Commonwealth Transportation Commissioner) to institute condemnation proceedings to fix damages caused by negligent operation of stone quarry by commissioner's agents contending that the proceeding was not one for a tort but one under the eminent domain statutes to compel compensation for property damage as required by Va. Const., Art. I, § 11, mandamus was refused since neither the Constitution nor the eminent domain statutes have application to tortious or unlawful acts. Eriksen v. Anderson, 195 Va. 655 , 79 S.E.2d 597 (1954).

CIRCUIT COURT OPINIONS

Basic statutory requirements for filing pecuniary claim against Commonwealth met. - University's plea in bar was overruled as the developers complied with the basic statutory requirements for filing a pecuniary claim against the Commonwealth of Virginia; while a demand failed to make a demand for damages, an affiant averred that the developers discussed their damages claims with the university's president, who disallowed the claims. The developers' motion to amend their complaint to add the Virginia Comptroller as a necessary party was granted. Geographic Network Affiliates-International, Inc. v. Enter. for Empowerment Found., 69 Va. Cir. 428, 2006 Va. Cir. LEXIS 94 (Norfolk 2006).

§ 8.01-193. Defense and hearing.

In every such case, the Comptroller shall be a defendant. He shall file an answer stating the objections to the claim. The cause shall be heard upon the petition, answer, and the evidence.

(Code 1950, § 8-753; 1977, c. 617.)

CASE NOTES

Dismissing petition as to state held not reversible error. - After a creditor filed his petition against the state and the Auditor of Public Accounts, praying judgment against the state for the amount of his debt, the court ex mero motu dismissed the petition against the state, but retained it against the Auditor and summoned him to answer and show cause why judgment should not be entered against the state for the amount claimed. It was held that, though the order dismissing the petition against the state may have been unnecessary, yet as it did not affect the petitioner's right or remedy, it was not reversible error. Parsons v. Commonwealth, 80 Va. 163 (1885) (decided under prior law).

Action alleging breach of contract. - Record supported the jury's verdict that Virginia Polytechnic Institute and State University waived its right to demand payment from a corporation under a sponsored research agreement and that the university breached an industry project agreement, which the parties subsequently concluded. Va. Polytechnic Inst. & State Univ. v. Interactive Return Serv., 267 Va. 642 , 595 S.E.2d 1, 2004 Va. LEXIS 67 (2004) (decided under prior law).

Applied in Va. Polytechnic Inst. & State Univ. v. Interactive Return Serv., 271 Va. 304 , 626 S.E.2d 436, 2006 Va. LEXIS 31 (2006).

CIRCUIT COURT OPINIONS

Motion to add comptroller as party granted. - University's plea in bar was overruled as the developers complied with the basic statutory requirements for filing a pecuniary claim against the Commonwealth of Virginia; while a demand failed to make a demand for damages, an affiant averred that the developers discussed their damages claims with the university's president, who disallowed the claims. The developers' motion to amend their complaint to add the Virginia Comptroller as a necessary party was granted. Geographic Network Affiliates-International, Inc. v. Enter. for Empowerment Found., 69 Va. Cir. 428, 2006 Va. Cir. LEXIS 94 (Norfolk 2006).

§ 8.01-194. Jury may be impaneled; judgment.

The court may, and on the motion of any party shall, cause a jury to be impaneled to ascertain any facts which are disputed, or the amount of any claim which is unliquidated.

(Code 1950, § 8-754; 1977, c. 617.)

REVISERS' NOTE.

Added to former § 8-754 is the language "on motion of either party the Court shall"; the last sentence has been deleted as unnecessary.

Former § 8-755 (Facts to be certified) has been deleted as unnecessary.

§ 8.01-195. No judgment to be paid without special appropriation.

No judgment against the Commonwealth, unless otherwise expressly provided, shall be paid without a special appropriation therefor by law.

(Code 1950, § 8-756; 1977, c. 617.)

REVISERS' NOTE.

Former § 8-757 (When suits may not be brought) has been deleted. For statute of limitations, see § 8.01-255 .

Former § 8-759 (In what court brought) has been deleted. For venue, see § 8.01-257 ff.

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Law review. - For a review of damages in medical malpractice in Virginia, see 33 U. Rich. L. Rev. 919 (1999).

Michie's Jurisprudence. - For related discussion, see 21 M.J. Workers' Compensation, § 6.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The terms "this article" and "this section," as used below, refer to former provisions.

CASE NOTES

This section limits the effect of judgments or decrees which may be rendered against the Commonwealth in proceedings under this article. Stuart v. Smith-Courtney Co., 123 Va. 231 , 96 S.E. 241 (1918); Davis v. Marr, 200 Va. 479 , 106 S.E.2d 722 (1959).

Which merely establish the claims sued on. - Proceedings under this article, if they result in a judgment, simply establish the claim sued on. No execution can be levied thereunder to subject either the property of the State, its governmental agencies, or that of persons constituting such governmental agency. Stuart v. Smith-Courtney Co., 123 Va. 231 , 96 S.E. 241 (1918).

And a special appropriation is necessary before payment of the demand established by a judgment or decree under this article. Stuart v. Smith-Courtney Co., 123 Va. 231 , 96 S.E. 241 (1918).

But the legislature cannot be required to make the appropriation referred to in this section. Smith v. State Hwy. Comm'n, 131 Va. 571 , 109 S.E. 312 (1921).

Article 18.1. Tort Claims Against the Commonwealth of Virginia.

§ 8.01-195.1. Short title.

This article shall be known and may be cited as the "Virginia Tort Claims Act."

(1981, c. 449.)

Cross references. - As to sovereign immunity and the Division of Risk Management, see § 2.2-1842 .

Law review. - For a re-examination of sovereign tort immunity in Virginia, see 15 U. Rich. L. Rev. 247 (1981).

For note on the abrogation of sovereign immunity in Virginia: The Virginia Tort Claims Act, see 7 G.M.U. L. Rev. 291 (1984). For comment on local liability for negligent inspection of buildings and equipment, see 18 U. Rich. L. Rev. 809 (1984).

For a note, "A Duty Not to Become a Victim: Assessing the Plaintiff's Fault in Negligent Security Actions," see 57 Wash. & Lee L. Rev. 611 (2000).

Michie's Jurisprudence. - For related discussion, see 16 M.J. Reference and Commissioners, § 2; 17 M.J. State, § 25.

CASE NOTES

For discussion of doctrine of sovereign immunity, see Hinchey v. Ogden, 226 Va. 234 , 307 S.E.2d 891 (1983).

Article essentially waives state's sovereign immunity to the extent of $25,000 per claim. Al-Mustafa Irshad v. Spann, 543 F. Supp. 922 (E.D. Va. 1982).

But not the sovereign immunity of the Commonwealth's agencies. - Because the Virginia Tort Claims Act, § 8.01-195.1 et seq., provided a waiver only of the Commonwealth's sovereign immunity but did not disturb the sovereign immunity of the Commonwealth's agencies, plaintiff employee's tortious interference claim was dismissed as to defendant university, which was an agency of the Commonwealth. Cominelli v. Rector & Visitors of the Univ. of Va., 589 F. Supp. 2d 706, 2008 U.S. Dist. LEXIS 99428 (W.D. Va. 2008), aff'd, 362 Fed. Appx. 359, 2010 U.S. App. LEXIS 1562 (4th Cir. Va. 2010).

Doctrine of sovereign immunity has largely disappeared for tort claims accruing on or after July 1, 1982, since on that date, this article went into effect. Al-Mustafa Irshad v. Spann, 543 F. Supp. 922 (E.D. Va. 1982).

Doctrine of sovereign immunity is "alive and well" in Virginia. Though the Supreme Court has, over the years, discussed the doctrine in a variety of contexts and refined it for application to constantly shifting facts and circumstances, it has never seen fit to abolish it. Nor does the General Assembly want the doctrine abolished. Messina v. Burden, 228 Va. 301 , 321 S.E.2d 657 (1984).

Not a waiver of immunity under Eleventh Amendment. - This section waives sovereign immunity in some cases for tort liability provided the suit is filed in state court. Such waiver may not properly be construed as a waiver of immunity under the U.S. Const., Amend. XI to the same or similar suits in federal court. Reynolds v. Sheriff, City of Richmond, 574 F. Supp. 90 (E.D. Va. 1983).

The Virginia Tort Claims Act, while generally waiving sovereign immunity for tort claims filed in state courts, does not waive the state's Eleventh Amendment immunity. McConnell v. Adams, 829 F.2d 1319 (4th Cir. 1987), cert. denied, 486 U.S. 1006, 108 S. Ct. 1731, 100 L. Ed. 2d 195 (1988).

District court's ability to take jurisdiction over a Virginia Tort Claims Act (VTCA), § 8.01-195.1 et seq., claim is doubtful because the Virginia legislature has expressly limited the jurisdiction over VTCA claims to Virginia state courts; it is unclear whether 28 U.S.C.S. § 1367, which allows for supplemental jurisdiction, overcomes the sovereign immunity bar to hearing a claim that the Commonwealth has only allowed state courts to hear. Creed v. Virginia, 596 F. Supp. 2d 930, 2009 U.S. Dist. LEXIS 1769 (E.D. Va. 2009).

Removal from district court. - Whether removal was proper turned on whether the Commonwealth should be considered merely a nominal or formal party, or, instead, a real party in interest whose failure to join the petition for removal required the court to remand the case and a reasonable basis existed for predicting that the Commonwealth could be liable. Whether the Commonwealth could be liable for the actions of the detention center's employees under the Virginia Tort Claims Act (VTCA), § 8.01-195.1 et seq., depended on the construction of a statute that committed all causes of action brought under it exclusively to the Virginia courts and any decision rendered by the instant court on the breadth of the VTCA necessarily intruded on the Commonwealth's interest in defining the scope of its waiver of sovereign immunity. Creed v. Virginia, 596 F. Supp. 2d 930, 2009 U.S. Dist. LEXIS 1769 (E.D. Va. 2009).

Injunctive relief as to future conduct of state officials. - The state's Eleventh Amendment immunity does not protect it from suits for injunctive relief governing its officials' future conduct. McConnell v. Adams, 829 F.2d 1319 (4th Cir. 1987), cert. denied, 486 U.S. 1006, 108 S. Ct. 1731, 100 L. Ed. 2d 195 (1988).

Postdeprivation remedy to prison inmates. - This article clearly provides a meaningful postdeprivation remedy to prison inmates for tort claims of $25,000 or less accruing after July 1, 1982. Al-Mustafa Irshad v. Spann, 543 F. Supp. 922 (E.D. Va. 1982).

Act provides remedy to prison inmate not given credit for time in jail in another state. - A former inmate in Virginia's prison system could not bring action under 42 U.S.C. § 1983 for compensatory and punitive damages for having been held seven days longer than he would have been if he had been given credit for seven days spent in a jail in Florida, before Virginia authorities obtained custody of him, because the Tort Claims Act provided adequate tort remedies for post-deprivation compensation. Wadhams v. Procunier, 772 F.2d 75 (4th Cir. 1985).

Assault on inmate by prison guard. - The Tort Claims Act provided an adequate remedy where a prison guard allegedly assaulted an inmate. Accordingly, plaintiff stated no procedural due process claim. Perry v. Walker, 586 F. Supp. 1264 (E.D. Va. 1984).

Negligent injury of inmate not deprivation of liberty. - An inmate at the city jail in Richmond who was injured when he slipped on a pillow negligently left on the stairs by respondent, a correctional deputy stationed at the jail, was not "deprived" of his "liberty" interest under the Fourteenth Amendment in freedom from bodily injury. The due process clause of the Fourteenth Amendment is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty or property. Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986) (decision as to action accruing before effective date of this article).

Applied in Groves v. Cox, 559 F. Supp. 772 (E.D. Va. 1983); Wohlford v. Virginia, 699 F. Supp. 572 (W.D. Va. 1988); Bates v. Commonwealth, 267 Va. 387 , 593 S.E.2d 250, 2004 Va. LEXIS 28 (2004); Billups v. Carter, 268 Va. 701 , 604 S.E.2d 414, 2004 Va. LEXIS 139 (2004).

CIRCUIT COURT OPINIONS

Police officer responding to a call. - Sovereign immunity applies to a police officer involved in an automobile accident that occurs after the official call to which the officer was responding had been cancelled but before the officer was aware of the cancellation. Reid v. Hammer, 62 Va. Cir. 251, 2003 Va. Cir. LEXIS 284 (Richmond 2003).

OPINIONS OF THE ATTORNEY GENERAL

No sovereign immunity if county performs building inspections using another state's building code standards. - A county may not enter into an agreement with another state to perform building inspections of industrialized buildings manufactured in a Virginia facility, to determine compliance with the building code of the other state. Neither the county nor its employees would be entitled to the protection of sovereign immunity with respect to the performance of such inspections. See opinion of Attorney General to C. Eric Young, Esquire, County Attorney for Tazewell County, 13-073, 2013 Va. AG LEXIS 84 (10/11/13).

§ 8.01-195.2. Definitions.

As used in this article:

"Agency" means any department, institution, authority, instrumentality, board or other administrative agency of the government of the Commonwealth of Virginia and any transportation district created pursuant to the Transportation District Act of 1964 (§ 33.2-1900 et seq.) of Title 33.2 and Chapter 630 of the 1964 Acts of Assembly.

"Employee" means any officer, employee or agent of any agency, or any person acting on behalf of an agency in an official capacity, temporarily or permanently in the service of the Commonwealth, or any transportation district, whether with or without compensation.

"School boards" as defined in § 22.1-1 are not state agencies nor are employees of school boards state employees.

"Transportation district" shall be limited to any transportation district or districts which have entered into an agreement in which the Northern Virginia Transportation District is a party with any firm or corporation as an agent to provide passenger rail services for such district or districts while such firm or corporation is performing in accordance with such agreement.

(1981, c. 449; 1986, cc. 534, 584; 1991, c. 23.)

Editor's note. - Chapter 630 of the 1964 Acts of Assembly, referred to in the definition of "Agency" was repealed by Acts 2004, c. 1000, cl. 3.

Acts 1986, c. 584, cl. 2, as amended by Acts 1988, c. 801, cl. 2, provided that the provisions of the 1986 act shall have no force and effect after July 1, 1990, unless reenacted by the General Assembly prior to such date. Since the General Assembly did not reenact the amendatory provisions of Acts 1986, c. 584, as amended, prior to July 1, 1990, the provisions expired.

References in this section were updated at the direction of the Virginia Code Commission to conform to the recodification of Title 33.2 by Acts 2014, c. 805, effective October 1, 2014.

Law review. - For comment on local liability for negligent inspection of buildings and equipment, see 18 U. Rich. L. Rev. 809 (1984).

CIRCUIT COURT OPINIONS

Entities covered. - Because the Eastern Virginia Medical School had previously been deemed a municipality and was not a part of the government of the Commonwealth, it was not subject to the provisions of the Virginia Tort Claims Act, §§ 8.01-195.1 through 8.01-216 ; therefore, the Commonwealth was not liable for the negligence of the school's employees. Baird v. Stokes, 82 Va. Cir. 56, 2011 Va. Cir. LEXIS 145 (Norfolk Apr. 5, 2011).

OPINIONS OF THE ATTORNEY GENERAL

Sovereign immunity. - Supreme Court likely would find VCU Health System Authority to be an arm of the Commonwealth and therefore entitled to absolute immunity. Even if the Court were not to agree, however, VCU Health System Authority also satisfies the criteria of a quasi-municipal corporation and therefore would be entitled to immunity for governmental functions. The Virginia Tort Claims Act exposes the Commonwealth, but not VCU Health System Authority, to limited liability for the negligent acts of its employees. See opinion of Attorney General to The Honorable James P. "Jimmie" Massie III, Member, Virginia House of Delegates, 17-005, 2017 Va. AG LEXIS 26 (12/7/17).

§ 8.01-195.3. Commonwealth, transportation district or locality liable for damages in certain cases.

Subject to the provisions of this article, the Commonwealth shall be liable for claims for money only accruing on or after July 1, 1982, and any transportation district shall be liable for claims for money only accruing on or after July 1, 1986, on account of damage to or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee while acting within the scope of his employment under circumstances where the Commonwealth or transportation district, if a private person, would be liable to the claimant for such damage, loss, injury or death. However, except to the extent that a transportation district contracts to do so pursuant to § 33.2-1919 , neither the Commonwealth nor any transportation district shall be liable for interest prior to judgment or for punitive damages. The amount recoverable by any claimant shall not exceed (i) $25,000 for causes of action accruing prior to July 1, 1988, $75,000 for causes of action accruing on or after July 1, 1988, or $100,000 for causes of action accruing on or after July 1, 1993, or (ii) the maximum limits of any liability policy maintained to insure against such negligence or other tort, if such policy is in force at the time of the act or omission complained of, whichever is greater, exclusive of interest and costs.

Notwithstanding any provision hereof, the individual immunity of judges, the Attorney General, attorneys for the Commonwealth, and other public officers, their agents and employees from tort claims for damages is hereby preserved to the extent and degree that such persons presently are immunized. Any recovery based on the following claims are hereby excluded from the provisions of this article:

Any claim against the Commonwealth based upon an act or omission which occurred prior to July 1, 1982.
1a. Any claim against a transportation district based upon an act or omission which occurred prior to July 1, 1986.
Any claim based upon an act or omission of the General Assembly or district commission of any transportation district, or any member or staff thereof acting in his official capacity, or to the legislative function of any agency subject to the provisions of this article.
Any claim based upon an act or omission of any court of the Commonwealth, or any member thereof acting in his official capacity, or to the judicial functions of any agency subject to the provisions of this article.
Any claim based upon an act or omission of an officer, agent or employee of any agency of government in the execution of a lawful order of any court.
Any claim arising in connection with the assessment or collection of taxes.
Any claim arising out of the institution or prosecution of any judicial or administrative proceeding, even if without probable cause.
Any claim by an inmate of a state correctional facility, as defined in § 53.1-1 , unless the claimant verifies under oath, by affidavit, that he has exhausted his remedies under the adult institutional inmate grievance procedures promulgated by the Department of Corrections. The time for filing the notice of tort claim shall be tolled during the pendency of the grievance procedure. Nothing contained herein shall operate to reduce or limit the extent to which the Commonwealth or any transportation district, agency or employee was deemed liable for negligence as of July 1, 1982, nor shall any provision of this article be applicable to any county, city or town in the Commonwealth or be so construed as to remove or in any way diminish the sovereign immunity of any county, city or town in the Commonwealth. (1981, c. 449; 1982, c. 397; 1986, c. 584; 1988, c. 884; 1989, c. 446; 1993, c. 481; 1998, cc. 203, 820; 2007, c. 250.)

Editor's note. - Acts 1986, c. 584, which amended this section, as amended by Acts 1988, c. 801, purported to provide for expiration of the provisions of the 1986 act on July 1, 1990. However, in light of the amendment and reenactment of this section by Acts 1988, c. 884 and Acts 1989, c. 446, at the direction of the Code Commission, the expiration provisions of Acts 1986, c. 584, as amended in 1988, have been given no further effect.

A reference in this section was updated at the direction of the Virginia Code Commission to conform to the recodification of Title 33.2 by Acts 2014, c. 805, effective October 1, 2014.

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 285 C, effective for the biennium ending June 30, 2022, provides: "Notwithstanding the provisions of § 33.2-1919 and § 33.2-1927 , Code of Virginia, the Northern Virginia Transportation Commission and the Potomac Rappahannock Transportation Commission are authorized to obtain liability policies for the Commissions' joint project, the Virginia Railway Express, consisting of liability insurance and a program of self-insurance maintained by the Commissions and administered by the Department of the Treasury's Division of Risk Management or by an independent third party selected by the Commissions, which liability policies shall be deemed to meet the requirements of § 8.01-195.3 , Code of Virginia. In addition, the Director of the Department of Rail and Public Transportation is authorized to work with the Northern Virginia Transportation Commission and the Potomac Rappahannock Transportation Commission to obtain the foregoing liability policies for the Commissions. In obtaining liability policies, the Director of the Department of Rail and Public Transportation shall advise the Commissions regarding compliance with all applicable public procurement and administrative guidelines."

The 2007 amendments. - The 2007 amendment by c. 250, deleted former subdivision 8, which read: "Any claim arising from the failure of a computer, software program, database, network, information system, firmware or any other device, whether operated by or on behalf of the Commonwealth of Virginia or one of its agencies, to interpret, produce, calculate, generate, or account for a date which is compatible with the 'Year 2000' date change."

Law review. - For comment on local liability for negligent inspection of buildings and equipment, see 18 U. Rich. L. Rev. 809 (1984). For note on the abrogation of sovereign immunity in Virginia: The Virginia Tort Claims Act, see 7 G.M.U. L. Rev. 291 (1984). For comment, "Obstacles to Holding a Parole Official in Virginia Liable for the Negligent Release or Supervision of a Parolee," see 22 U. Rich. L. Rev. 83 (1987).

For a note, "A Duty Not to Become a Victim: Assessing the Plaintiff's Fault in Negligent Security Actions," see 57 Wash. & Lee L. Rev. 611 (2000).

For 2003/2004 survey of civil practice and procedure, see 39 U. Rich. L. Rev. 87 (2004).

For article, "A Declaratory Theory of State Accountability," see 102 Va. L. Rev. 153 (2016).

For article, "The Damagings Clauses," see 104 Va. L. Rev. 341 (2018).

For Washington & Lee Law Alumni Association Student Notes Colloquium, "If a Tree Falls in a Roadway, Is Anyone Liable?: Proposing the Duty of Reasonable Care for Virginia's Road-Maintaining Entities," see 76 Wash & Lee L. Rev. 509 (2019).

Michie's Jurisprudence. - For related discussion, see 14B M.J. Prisons and Prisoners, §§ 5, 8.

CASE NOTES

This section is a limited waiver of governmental immunity from tort claims and not a legislative definition of the Commonwealth's duty of care to those with claims against it. Commonwealth v. Coolidge, 237 Va. 621 , 379 S.E.2d 338 (1989).

This section was a limited waiver of the sovereign immunity of the Commonwealth of Virginia and certain "transportation districts" only, and did not waive the sovereign immunity of agencies of the Commonwealth and, as no other statutory or constitutional provision waived such immunity, the Commonwealth's university could not be held liable for a patient's medical malpractice claim. Rector & Visitors of the Univ. of Va. v. Carter, 267 Va. 242 , 591 S.E.2d 76, 2004 Va. LEXIS 11 (2004).

Section does not limit damages recoverable from transit authority nor exempt transit authority from requirements of Tort Claims Act. - Limits on recoverable damage stated in Virginia Tort Claims Act were not applicable to Washington Metropolitan Transit Authority, even though considered part of state government; language of compact creating Transit Authority amounted to waiver of right of sovereign immunity, does not contain any limitation on the amount of compensatory damages that a plaintiff may recover, and does not mention or refer to the Virginia Tort Claims Act. Washington Metro. Area Transit Auth. v. Briggs, 255 Va. 309 , 497 S.E.2d 139 (1998).

Only negligent conduct is protected by the statute; acts constituting gross negligence or intentional torts are not immunized. Coppage v. Mann, 906 F. Supp. 1025 (E.D. Va. 1995).

Section fails to provide adequate postdeprivation remedy for loss of right to appeal. Hutchins v. Carrillo, 27 Va. App. 595, 500 S.E.2d 277 (1998).

Notice of claim requirements. - Where there was only one University of Virginia Medical Center in Charlottesville, an administrator's notice of claim that identified the hospital, stated that the decedent was admitted to that hospital, and that while there the patient was injured by the alleged medical negligence of the employees of that hospital, these assertions reasonably identified the place at which the alleged wrongful death occurred to put the Commonwealth on notice of said claim; § 8.01-195.6 did not mandate that the administrator identify the floor or room within the hospital where the alleged injury occurred, as such degree of specificity was unnecessary to accomplish the purpose of the statute. Bates v. Commonwealth, 267 Va. 387 , 593 S.E.2d 250, 2004 Va. LEXIS 28 (2004).

Test in determining governmental employee's claims of immunity. - In determining government employees' claims of immunity, the court examines the function employee was performing and the extent of the state's interest and involvement in that function. Whether the act performed involves the use of judgment and discretion is a consideration, but it is not always determinative. Of equal importance is the degree of control and direction exercised by the state over the employee whose negligence is involved. Lohr v. Larsen, 246 Va. 81 , 431 S.E.2d 642 (1993).

Broad discretion weighs in favor of immunity claim. - If a broad discretion is vested in a government employee in performing the function complained of, it will weigh heavily in favor of a government employee's claim of immunity. The court has not limited the element of discretion in determining governmental immunity to governmental policymakers; it has been extended to a state-employed physician. Resolution of the issue of sovereign immunity goes beyond determining whether the act constitutes the formulation or execution of policy. Lohr v. Larsen, 246 Va. 81 , 431 S.E.2d 642 (1993).

Subdivision 4 does not exclude discretionary acts from its scope; instead, it specifically encompasses any claim that is based upon acts or omissions occurring in the execution of a lawful court order. Baumgardner v. Southwestern Va. Mental Health Inst., 247 Va. 486 , 442 S.E.2d 400 (1994).

Exception for execution of court order. - The exception in subdivision 4 which precludes any claim "based upon an act or omission of an officer, agent or employee of any agency of government in the execution of a lawful order of any court" did not bar a claim based on the negligence of government employees in treating an incarcerated prisoner in that the plaintiff's claim did not involve employees who were implementing the directives of a court order to provide medical evaluation and care but, rather, employees at a correctional facility who were providing medical care to the plaintiff's decedent because he was an inmate of that facility. Whitley v. Commonwealth, 260 Va. 482 , 538 S.E.2d 296, 2000 Va. LEXIS 143 (2000).

Death of involuntarily hospitalized inmate. - Where acts and omissions of the state hospital's employees alleged to have caused decedent's death occurred in the execution of a lawful court order for involuntary hospitalization and treatment, dismissal of motion for judgement based on those discretionary acts would be upheld, as under subdivision 4 of § 8.01-195.3 the Commonwealth was immune from liability. Patten v. Commonwealth, 262 Va. 654 , 553 S.E.2d 517, 2001 Va. LEXIS 118 (2001).

Nuisance claims. - Claims against the Commonwealth sounding in nuisance regarding the acts or omissions of an agency of the Commonwealth in the design of a sidewalk were barred under the doctrine of sovereign immunity as those claims fell under the legislative function exception to the waiver of the same. Maddox v. Commonwealth, 267 Va. 657 , 594 S.E.2d 567, 2004 Va. LEXIS 61 (2004).

Commonwealth's interest and involvement in employee's function. - If the function that a government employee was negligently performing was essential to a governmental objective and the government had a great interest and involvement in that function, those factors would weigh in favor of the employee's claim of sovereign immunity. On the other hand, if that function has only a marginal influence upon a governmental objective, and the government's interest and involvement in that function are "slight," these factors weigh against granting governmental immunity to a government employee. Lohr v. Larsen, 246 Va. 81 , 431 S.E.2d 642 (1993).

Extent of government control influences consideration of immunity claim. - The extent of a government's control and direction of its employee also influences consideration of that employee's claim of immunity. A high level of control weighs in favor of immunity; a low level of such control weighs against immunity. Lohr v. Larsen, 246 Va. 81 , 431 S.E.2d 642 (1993).

Wide discretion and higher level of governmental control. - The issue of wide discretion that influences consideration of the grant of governmental immunity appears to be at odds with consideration of a higher level of governmental control. However, when a government employee is specially trained to make discretionary decisions, the government's control must necessarily be limited in order to make maximum use of the employee's special training and subsequent experience. Lohr v. Larsen, 246 Va. 81 , 431 S.E.2d 642 (1993).

Sovereign immunity not limited to when employees follow "state established rules." - Doctrine of sovereign immunity is not limited to those instances in which specially trained state employees follow "state-established rules," "state-prescribed methods," or "state-standardized procedures." These factors were considerations in concluding that the necessary control element was present, but such constraints are not required to establish the necessary governmental control over a state employee who is a professional. Lohr v. Larsen, 246 Va. 81 , 431 S.E.2d 642 (1993).

County entitled to sovereign immunity in tort claim. - Trial court should have granted a county's special plea of sovereign immunity in a personal injury suit because, inter alia, Virginia Tort Claims Act, by § 8.01-195.3 , excluded counties from its limited abrogation of immunity; the second paragraph of § 15.2-1809 conferred the common-law immunity created in the first paragraph for cities and towns onto counties "in addition to" the immunity counties already enjoy, and did not in any way abrogate the sovereign immunity of counties; § 15.2-1243 et seq. did not apply to tort claims. Seabolt v. County of Albemarle, 283 Va. 717 , 724 S.E.2d 715, 2012 Va. LEXIS 88 (2012).

As applicable to § 8.01-35.1 set off. - 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).

Relationship with inmate statute. - To apply the limitations period of the inmate statute, § 8.01-243.2 , to an inmate's negligence action against the Commonwealth of Virginia would have impliedly repealed the tolling provisions in subdivision 7 of § 8.01-195.3 of the Virginia Tort Claims Act, §§ 8.01-195.1 to 8.01-195.9 ; instead of such a disfavored result, the provisions could be harmonized, because the inmate statute applies to all classes of litigation pertaining to conditions of confinement, while the Act applies only to tort actions against the Commonwealth. Ogunde v. Commonwealth, 271 Va. 639 , 628 S.E.2d 370, 2006 Va. LEXIS 45 (2006).

Tolling provision of Virginia Tort Claims Act did not apply to inmate's § 1983 action because it operated on tighter schedule than § 1983, and Act did not govern suits against state employees. Battle v. Ledford, 912 F.3d 708, 2019 U.S. App. LEXIS 528 (4th Cir. Jan. 8, 2019).

Inmate exception. - The exception in subdivision 7 requiring the filing of an affidavit with respect to "any claim by an inmate of a state correctional facility," did not apply to a wrongful death action by a deceased inmate's administrator in that the administrator was not an inmate of a correctional facility and there was nothing in the statutory language indicating that a claim filed by an administrator of the estate of a deceased inmate was subject to the affidavit requirement. Whitley v. Commonwealth, 260 Va. 482 , 538 S.E.2d 296, 2000 Va. LEXIS 143 (2000).

Inmate exhausted administrative remedies. - Where the evidence showed that an inmate reported an officer's sexual conduct within 30 days of the last attack, cooperated with an investigation, and had a grievance proceed through the administrative processes, the inmate had exhausted all administrative remedies prior to filing an action in a court of law. Billups v. Carter, 268 Va. 701 , 604 S.E.2d 414, 2004 Va. LEXIS 139 (2004).

Trial court erred by holding that sovereign immunity barred the inmate's personal injury action because he exhausted his administrative remedies, as he submitted a timely grievance for a Level I review, the warden issued a response on December 22, 2017, determining that the grievance was unfounded, and the inmate's Level II grievance appeal declared that it was mailed on December 25, 2017, by placing it in the prison mailing system, which was within five calendar days as required. Albritton v. Commonwealth, 853 S.E.2d 512, 2021 Va. LEXIS 2 (Feb. 4, 2021).

Inmate's federal civil rights claim was not allowed where this section provided remedy. - Inmate's 42 U.S.C.S. § 1983 action in which the inmate alleged that a city jail officer would not allow the inmate to take certain property with him when he was transferred to a state facility was dismissed under 28 U.S.C.S. § 1915A for failure to state an actionable federal claim because the inmate could pursue an available post-deprivation remedy under Virginia's Tort Claims Act, § 8.01-195.3 , to recover the monetary value of the confiscated property. Etheridge v. City of Danville Jail, - F. Supp. 2d - , 2005 U.S. Dist. LEXIS 13390 (W.D. Va. July 5, 2005).

University was entitled to immunity. - University employee's claim of tortious interference with business expectancy was dismissed as to the university because the Virginia Tort Claims Act's waiver of immunity did not apply to the Commonwealth's agencies. Cominelli v. Rector & Bd. of Visitors of the Univ. of Va., 362 Fed. Appx. 359, 2010 U.S. App. LEXIS 1562 (4th Cir. 2010).

Public university and its agents and employees retained immunity from negligence claims brought against it by former university student. Doe v. Rector & Visitors of George Mason Univ., 132 F. Supp. 3d 712, 2015 U.S. Dist. LEXIS 125230 (E.D. 2015).

Commonwealth's immunity from liability for mental health and mental retardation board's acts and omissions. - The plain meaning of this section preserves the Commonwealth's immunity from liability for the acts and omissions alleged in administrator's motion for judgment against state mental health and mental retardation board. Baumgardner v. Southwestern Va. Mental Health Inst., 247 Va. 486 , 442 S.E.2d 400 (1994).

State-employed physician was entitled to sovereign immunity. - Where the Commonwealth controlled absolutely the equipment doctor used, the procedures he could perform and even the brand names of the medication he could prescribe, further, the doctor could not decline to accept a particular person as a patient, the state-employed public health physician was entitled to the protection of the doctrine of sovereign immunity in a medical malpractice case from liability for his alleged acts of ordinary negligence. Lohr v. Larsen, 246 Va. 81 , 431 S.E.2d 642 (1993).

County employees were entitled to immunity. - In a family's suit against numerous state, county, and private defendants for separating the daughter from the mother and stepfather for allegations of sexual abuse, caseworkers and a director were immune from suit for malicious prosecution because they were acting in their governmental capacity. Gedrich v. Fairfax County Dep't of Family Servs., 282 F. Supp. 2d 439, 2003 U.S. Dist. LEXIS 16312 (E.D. Va. 2003).

Workers' compensation exclusivity. - When a subcontractor's employee was injured while removing electrical conduit from a public university's building, the university was his statutory employer because the maintenance and preservation of the university's buildings was something the university was required by § 23-76 to do, so it was part of the university's trade, business or occupation, and the worker's remedies against the university were limited to his workers' compensation remedies, under the exclusivity provision of the Virginia Workers' Compensation Act, § 65.2-307 A, and the Virginia Tort Claims Act, § 8.01-195.1 et seq. did not waive this exclusivity bar. Jones v. Commonwealth, 267 Va. 218 , 591 S.E.2d 72 (2004).

Applied in Messina v. Burden, 228 Va. 301 , 321 S.E.2d 657 (1984).

CIRCUIT COURT OPINIONS

Act applies to Commonwealth's agencies. - University of Virginia Medical Center and University of Virginia Health System were not immune from a medical malpractice action, because when § 8.01-195.3 of the Virginia Tort Claims Act, § 8.01-195.1 et seq., revoked the Commonwealth's immunity, it also revoked the immunity of its agencies. Wright v. Wiedower, 56 Va. Cir. 470, 2001 Va. Cir. LEXIS 487 (Winchester 2001).

Directing traffic while off duty. - Police officer sued for negligence in directing traffic while off duty was entitled to sovereign immunity because regulating traffic was a governmental function, even when performed by an off-duty officer, which required the use discretion and judgment. Bailey v. Lewis, 85 Va. Cir. 413, 2012 Va. Cir. LEXIS 92 (Portsmouth Oct. 5, 2012).

State university held immune from suit. - In a negligence suit filed by the mothers of minor children who drowned in a university's pool, as the university was a state agency, it was immune from suit. Pentecost v. Old Dominion Univ., 61 Va. Cir. 270, 2003 Va. Cir. LEXIS 235 (Norfolk 2003).

State university employee not immune from suit. - In a negligence suit filed by the mothers of minor children who drowned in a state university's pool, a lifeguard employed by the university was not entitled to immunity because his alleged conduct was arguably intentional or wanton and grossly negligent, and might have been outside the scope of his employment. Pentecost v. Old Dominion Univ., 61 Va. Cir. 270, 2003 Va. Cir. LEXIS 235 (Norfolk 2003).

State university mental health counselors not immune. - In a damages action arising out of a mass shooting at a state university, the shooter's mental health counselors and the university counseling center were not entitled to qualified sovereign immunity because the counseling center did not provide services to the public, but to students who paid for the services. Peterson v. Commonwealth, 80 Va. Cir. 21, 2010 Va. Cir. LEXIS 7 (Danville Jan. 12, 2010).

State agencies immune, as plaintiff failed to bring the action against the Commonwealth. - Motion for summary judgment pursuant to former Sup. Ct. R. 3:18 [see now Rule 3:20] by a medical center and a health company was granted, because those defendants were agencies of the Commonwealth and were protected by sovereign immunity pursuant to the Virginian Tort Claims Act, § 8.01-195.3 , as the Virginia Tort Claims Act required an injured person to sue the Commonwealth for the alleged negligence of its agent or agency and rely upon vicarious liability to make the Commonwealth liable. Wright v. Wiedower, 59 Va. Cir. 397, 2002 Va. Cir. LEXIS 368 (Winchester Aug. 28, 2002).

State university officials immune from simple negligence claims. - In a damages action arising out of a mass shooting at a state university, the university president, vice-president, and the university's emergency policy group members were entitled to qualified sovereign immunity as to simple negligence claims because they occupied executive type positions with the university and participated in its management and operation, and the state had a great interest and involvement in the operation of the university. Peterson v. Commonwealth, 80 Va. Cir. 21, 2010 Va. Cir. LEXIS 7 (Danville Jan. 12, 2010).

Community college could not be sued in tort. - To the extent constructive fraud is alleged and proved, only the Commonwealth may be sued, and to the extent actual fraud is alleged and proved against an individual defendant, that individual defendant is also liable since actual fraud is an intentional tort to which sovereign immunity does not apply; therefore, the community college, whether or not a legal entity, could not be sued in tort by the student. Goff v. J. Sargeant Reynolds Cmty. College, 65 Va. Cir. 479, 2004 Va. Cir. LEXIS 281 (Richmond 2004).

County immune from liability. - County was immune from liability in a vehicle owner's action alleging that the county and a park ranger were negligent in failing to secure the front gate to a park so that it would not swing into the path of vehicles because the county was an arm of the Commonwealth, and its sovereign immunity had not been waived. Altizer v. County of Tazewell, 75 Va. Cir. 5, 2008 Va. Cir. LEXIS 13 (Tazewell County 2008).

Community services board has qualified immunity. - In a damages action arising out of a mass shooting at a state university, a community services board and its employees were entitled to qualified sovereign immunity as to simple negligence claims because the board was a municipal corporation for immunity purposes and its provision of mental health services was not a ministerial act of a proprietary nature but an exercise of the power delegated to it for the general benefit and well-being of the population it served. Peterson v. Commonwealth, 80 Va. Cir. 21, 2010 Va. Cir. LEXIS 7 (Danville Jan. 12, 2010).

Sovereign immunity for police commanding officers. - Police captain and the chief of police were immune under the doctrine of sovereign immunity to tort liability stemming from subordinate police officers' alleged assault upon a citizen. Furthermore, neither the police captain, nor the chief of police was vicariously liable for the alleged misconduct of the subordinate officers. Pigott v. Ostulano, 74 Va. Cir. 228, 2007 Va. Cir. LEXIS 285 (Norfolk 2007).

Government functions. - A motorist's claims of negligent design, construction, and signposting were barred under this section of the Tort Claims Act because they related to legislative government functions, to which the Commonwealth's immunity attached, and immunity also attached to the motorist's maintenance claim because it appeared to be a negligent design claim brought under the guise of maintenance. Vivian v. Honda Motor Co., 64 Va. Cir. 297, 2004 Va. Cir. LEXIS 73 (Fairfax County 2004).

Sovereign immunity found. - Commonwealth's special plea of sovereign immunity was granted in the motorist's personal injury action, arising from injuries the motorist sustained when a tree fell and struck his vehicle, because the Commonwealth, if a private person, would not be liable to the motorist, as a private landowner did not owe a duty to protect travelers on an adjoining public roadway from natural conditions on the landowner's property. Zook v. City of Norfolk, 87 Va. Cir. 47, 2013 Va. Cir. LEXIS 153 (Norfolk July 19, 2013).

Sovereign and charitable immunity found. - In an action filed against them by a patient and others, special pleas in bar of sovereign and charitable immunity were granted to defendant medical clinic, charity, and a doctor, as the charity's employee, as: (1) the clinic, under both § 23-14 and its charter, it had the legal attributes of a municipal entity; and (2) the charity exhibited a charitable or eleemosynary function. Moore v. Maryview Med. Ctr., 71 Va. Cir. 442, 2005 Va. Cir. LEXIS 238 (Portsmouth 2005).

Governmental immunity not waived. - In a personal injury action by an injured arrestee against the city and a police officer, the Virginia Tort Claims Act, § 8.01-195.1 et seq., did not apply to, and sovereign immunity had not been waived for, the city or the police officer because under § 8.01-195.3 , the Virginia Tort Claims Act expressly preserved the sovereign immunity of cities and the individual immunity of municipal employees. Cunningham v. Rossman, 80 Va. Cir. 543, 2010 Va. Cir. LEXIS 74 (Danville July 12, 2010).

Sufficiency of pleadings. - Visitor to a corrections facility sufficiently alleged tort claims against the Commonwealth of Virginia as to negligence, assault, and false imprisonment because the visitor alleged that corrections officers subjected the visitor to a coerced strip and visual body cavity search while visiting an inmate in which no contraband was found. However, the visitor failed to sufficiently allege a tort claim against the Commonwealth for intentional infliction of emotional distress. Calloway v. Commonwealth, 99 Va. Cir. 400, 2018 Va. Cir. LEXIS 317 (Augusta County Aug. 2, 2018).

Punitive damages prohibited. - Administrator of the deceased's estate could not recover punitive damages pursuant to § 8.01-195.3 . Ahari v. Fairfax County, 71 Va. Cir. 268, 2006 Va. Cir. LEXIS 141 (Fairfax County 2006).

Gross negligence. - In a legal malpractice case arising from a patient's murder in a hospital, this statute did not act as an absolute bar to litigation because sovereign immunity could have been overcome by allegations of gross negligence, and the question of whether gross negligence existed was for the finder of fact. Reasonable minds could have concluded that the failure to monitor the patients due to watching television constituted either ordinary or gross negligence. Wilkins v. Lattimer, 93 Va. Cir. 236, 2016 Va. Cir. LEXIS 58 (Alexandria May 2, 2016).

OPINIONS OF THE ATTORNEY GENERAL

Cause of action must accrue on or after July 1, 1982. - Because the Virginia Tort Claims Act does not provide relief for torts committed by agents of the Commonwealth that occurred prior to July 1, 1982, it is unlikely that a claimant could successfully bring an action against the Commonwealth for having been sterilized. See opinion of Attorney General to the Honorable Robert G. Marshall, Member, House of Delegates, and to the Honorable Patrick A. Hope, Member, House of Delegates, 13-015, 2013 Va. AG LEXIS 16 (3/15/13).

§ 8.01-195.4. Jurisdiction of claims under this article; right to jury trial; service on Commonwealth or locality; amending amount of claim.

The general district courts shall have exclusive original jurisdiction to hear, determine, and render judgment on any claim against the Commonwealth or any transportation district cognizable under this article when the amount of the claim does not exceed $4,500, exclusive of interest and any attorney fees. Jurisdiction shall be concurrent with the circuit courts when the amount of the claim exceeds $4,500 but does not exceed $50,000, exclusive of interest and such attorney fees. Jurisdiction of claims when the amount exceeds $50,000 shall be limited to the circuit courts of the Commonwealth. The parties to any such action in the circuit courts shall be entitled to a trial by jury.

While a matter is pending in a general district court or a circuit court, upon motion of the plaintiff seeking to increase or decrease the amount of the claim, the court shall order transfer of the matter to the general district court or circuit court that has jurisdiction over the amended amount of the claim without requiring that the case first be dismissed or that the plaintiff suffer a nonsuit, and the tolling of the applicable statutes of limitations governing the pending matter shall be unaffected by the transfer. Where such a matter is pending, if the plaintiff is seeking to increase or decrease the amount of the claim to an amount wherein the general district court and the circuit court would have concurrent jurisdiction, the court shall transfer the matter to either the general district court or the circuit court, as directed by the plaintiff, provided that such court otherwise has jurisdiction over the matter. Except for good cause shown, no such order of transfer shall issue unless the motion to amend and transfer is made at least 10 days before trial. The plaintiff shall pay filing and other fees as otherwise provided by law to the clerk of the court to which the case is transferred, and such clerk shall process the claim as if it were a new civil action. The plaintiff shall prepare and present the order of transfer to the transferring court for entry, after which time the case shall be removed from the pending docket of the transferring court and the order of transfer placed among its records. The plaintiff shall provide a certified copy of the transfer order to the receiving court.

In all actions against the Commonwealth commenced pursuant to this article, the Commonwealth shall be a proper party defendant, and service of process shall be made on the Attorney General. The notice of claim shall be filed pursuant to § 8.01-195.6 on the Director of the Division of Risk Management or the Attorney General. In all such actions against a transportation district, the district shall be a proper party and service of process and notices shall be made on the chairman of the commission of the transportation district.

(1981, c. 449; 1984, c. 698; 1986, c. 584; 1987, cc. 567, 674; 1989, cc. 121, 337; 1991, c. 23; 1992, cc. 111, 796; 2002, c. 645; 2005, c. 144; 2011, cc. 14, 702; 2019, c. 787; 2021, Sp. Sess. I, c. 199.)

Cross references. - As to venue in actions under the Virginia Tort Claims Act, see now subdivision 18 of § 8.01-261 .

Editor's note. - Acts 1986, c. 584, cl. 2, as amended by Acts 1988, c. 801, cl. 2, provided that the provisions of the 1986 act shall have no force and effect after July 1, 1990, unless reenacted by the General Assembly prior to such date. Since the General Assembly did not reenact the amendatory provisions of Acts 1986, c. 584, as amended, prior to July 1, 1990, the provisions expired.

The 2002 amendments. - The 2002 amendment by c. 645 substituted "$4,500" for "$1,000" twice in the first paragraph.

The 2005 amendments. - The 2005 amendment by c. 144 twice substituted "$15,000" for "$10,000" in the first paragraph.

The 2011 amendments. - The 2011 amendments by cc. 14 and 702 are identical, and twice substituted "$25,000" for "$15,000" in the first paragraph.

The 2019 amendments. - The 2019 amendment by c. 787 inserted the second paragraph.

The 2021 Sp. Sess. I amendments. - The 2021 amendment by Sp. Sess. I, c. 199, effective July 1, 2021, in the first paragraph, substituted "attorney fees" for "attorneys' fees" twice and "$50.000" for "$25,000" twice.

Law review. - For note on the abrogation of sovereign immunity in Virginia: The Virginia Tort Claims Act, see 7 G.M.U. L. Rev. 291 (1984).

For survey on civil procedure and practice in Virginia for 1989, see 23 U. Rich. L. Rev. 511 (1989).

CASE NOTES

Service on Commonwealth. - Court granted the Commonwealth's motion to quash because plaintiff alleged service of process by mailing a copy of the Summons and Complaint to the Virginia Attorney General's office by certified mail was deficient under Virginia law, and there was no indication (and the Commonwealth specifically rejected the possibility) that the Commonwealth waived its service of process. Fauber v. Va. Army Nat'l Guard,, 2009 U.S. Dist. LEXIS 31040 (W.D. Va. Apr. 9, 2009).

CIRCUIT COURT OPINIONS

Amount in controversy. - Res judicata did not bar buyers' Virginia Consumer Protection Act claim regarding a $35,000 liquidated damages provision: the buyers could not have raised the claim in the prior seller's prior unlawful detainer action because the general district court did not have jurisdiction over claims exceeding $15,000, pursuant to § 8.01-195.4 . Kearney v. Robinson Land Trust, 80 Va. Cir. 467, 2010 Va. Cir. LEXIS 162 (Charlottesville June 29, 2010).

§ 8.01-195.5. Settlement of certain cases.

The Attorney General shall have authority in accordance with § 2.2-514 to compromise and settle claims against the Commonwealth cognizable under this article.

The chairman of the commission for a transportation district against which a claim was filed pursuant to this article, or such other person as may be designated by the commission, shall have the authority to compromise, settle and discharge the claim provided (i) the proposed settlement and reasons therefor are submitted to the commission in writing and approved by its members or (ii) the settlement is made in accordance with a written policy approved by the transportation district commission for such settlements. The Director of the Division of Risk Management may adjust, compromise and settle claims against the Commonwealth cognizable under this article prior to the commencement of suit unless otherwise directed by the Attorney General.

(1981, c. 449; 1986, c. 584; 1991, c. 23; 1992, c. 796.)

§ 8.01-195.6. Notice of claim.

Every claim cognizable against the Commonwealth or a transportation district shall be forever barred unless the claimant or his agent, attorney or representative has filed a written statement of the nature of the claim, which includes the time and place at which the injury is alleged to have occurred and the agency or agencies alleged to be liable, within one year after such cause of action accrued. Failure to provide such statement shall not bar a claim against the Commonwealth or a transportation district, provided that (i) for claims against the Commonwealth, the Division of Risk Management or any insurer or entity providing coverage or indemnification of the claim or the Attorney General or (ii) for claims against a transportation district, the chairman of the commission of the transportation district, had actual knowledge of the claim, which includes the nature of the claim, the time and place at which the injury is alleged to have occurred, and the agency or agencies alleged to be liable, within one year after such cause of action accrued. However, if the claimant was under a disability at the time the cause of action accrued, the tolling provisions of § 8.01-229 shall apply.
If the claim is against the Commonwealth, the statement shall be filed with the Director of the Division of Risk Management or the Attorney General, except as otherwise provided herein. If the claim is against a transportation district, the statement shall be filed with the chairman of the commission of the transportation district. If the claim is against the Commonwealth and the agency alleged to be liable is the Department of Transportation, then notice of such claim shall be filed with the Commissioner of Highways. If notice of such claim is filed with the Commissioner of Highways and is outside of any settlement authority delegated to the Department of Transportation by the Attorney General, then the Commissioner of Highways shall promptly deliver the notice of such claim to the Attorney General.
The notice is deemed filed when it is received in the office of the official to whom the notice is directed. The notice may be delivered by hand, by any form of United States mail service (including regular, certified, registered or overnight mail), or by commercial delivery service. If notice is to be filed with the Commissioner of Highways, it may also be delivered electronically in a manner prescribed by the Commissioner of Highways.
In any action contesting the filing of the notice of claim, the burden of proof shall be on the claimant to establish receipt of the notice in conformity with this section. A signed United States mail return receipt indicating the date of delivery, or any other form of signed and dated acknowledgment of delivery given by authorized personnel in the office of the official with whom the statement is filed, shall be prima facie evidence of filing of the notice under this section.
Claims against the Commonwealth involving medical malpractice shall be subject to the provisions of this article and to the provisions of Chapter 21.1 (§ 8.01-581.1 et seq.). However, the recovery in such a claim involving medical malpractice shall not exceed the limits imposed by § 8.01-195.3 . (1981, c. 449; 1984, cc. 638, 698; 1986, c. 584; 1991, c. 23; 1992, c. 796; 2002, c. 207; 2007, c. 368; 2016, cc. 760, 772.)

Editor's note. - Acts 1986, c. 584, cl. 2, as amended by Acts 1988, c. 801, cl. 2, provides that the provisions of the act shall have no force and effect after July 1, 1990, unless reenacted by the General Assembly prior to such date. Since the General Assembly did not reenact the provisions of the act prior to July 1, 1990, the provisions expired.

The section is set out above to correct an error in the 2016 Cumulative Supplement. In subsection E, "of this title" was deleted following "Chapter 21.1 ( § 8.01-581.1 et seq.)."

The 2002 amendments. - The 2002 amendment by c. 207 rewrote the last sentence in the second paragraph, which formerly read: "The date on which the return receipt is signed by the Director, the Attorney General, or the chairman shall be prima facie evidence of the date of filing for purposes of compliance with this section."

The 2007 amendments. - The 2007 amendment by c. 368, rewrote the section.

The 2016 amendments. - The 2016 amendment by c. 760, in subsection B, added the exception in the first sentence, and added the third and fourth sentences, and added the third sentence in subsection C.

The 2016 amendment by c. 772, in subsection A, added the second sentence.

Law review. - For note on the abrogation of sovereign immunity in Virginia: The Virginia Tort Claims Act, see 7 G.M.U. L. Rev. 291 (1984).

For 2007 annual survey article, "Civil Practice and Procedure," see 42 U. Rich. L. Rev. 229 (2007).

CASE NOTES

Purpose. - Where there was only one University of Virginia Medical Center in Charlottesville, an administrator's notice of claim which identified that hospital, stated that the decedent was admitted to that hospital, and that while there a patient was injured by the alleged medical negligence of the employees of that hospital, these assertions reasonably identified the place at which the alleged wrongful death occurred to put the Commonwealth on notice of said claim; this section did not mandate that the administrator identify the floor or room within the hospital where the alleged injury occurred, as such degree of specificity was unnecessary to accomplish the purpose of the statute. Bates v. Commonwealth, 267 Va. 387 , 593 S.E.2d 250, 2004 Va. LEXIS 28 (2004).

Requirements. - The plaintiff's notice did not meet the statutory requirements because it did not specify the location of her injury with sufficient particularity. Halberstam v. Commonwealth, 251 Va. 248 , 467 S.E.2d 783 (1996). But see Bates v. Commonwealth, 267 Va. 387 , 593 S.E.2d 250, 2004 Va. LEXIS 28 (2004).

Supreme Court of Virginia holds that a notice of claim that does not explicitly include the agency or agencies alleged to be liable is insufficient under § 8.01-195.6 A, even where such information is easily inferred from the notice of claim. Phelan v. Commonwealth, 291 Va. 192 , 781 S.E.2d 567, 2016 Va. LEXIS 14 (2016).

Individual's claim was barred by sovereign immunity where she made no attempt to explicitly include the identity of the agency or agencies alleged to be liable in her notice of claim, and although the notice of claim led to the logical inference that the Department of Corrections was the agency that she was alleging to be responsible for her injuries, an inference did not meet the requirements of § 8.01-195.6 A. Phelan v. Commonwealth, 291 Va. 192 , 781 S.E.2d 567, 2016 Va. LEXIS 14 (2016).

Certified mail exclusive method of giving notice. - Mailing a notice of claim by certified mail, return receipt requested, is the exclusive method of filing a notice of claim against the commonwealth under the Virginia Tort Claims Act and, accordingly, a plaintiff's claim was untimely where the date on the return receipt was more than one year from the date of her injury even though the commonwealth may have had actual notice of the plaintiff's claim and the plaintiff's attorney had hand-delivered a copy of the claim to the appropriate agency within one year. Melanson v. Commonwealth, 261 Va. 178 , 539 S.E.2d 433, 2001 Va. LEXIS 14 (2001).

Language of § 18.2-200.1 plainly means that a request for a return of money advanced on a construction project is sufficient notice if sent by certified mail, return receipt requested, without proof of actual receipt, unlike the notices required by the bad check law, former § 6.1-117, now codified at § 18.2-183 , Virginia Tort Claims Act, § 8.01-195.1 et seq., the Virginia Habitual Offenders Act, former § 46.2-355, repealed in 1999, and the Virginia Interstate Agreement on Detainers, art. III(b), found in § 53.1-210 . Holsapple v. Commonwealth, 266 Va. 593 , 587 S.E.2d 561, 2003 Va. LEXIS 96 (2003), cert. denied, 543 U.S. 826, 125 S. Ct. 164, 160 L. Ed. 2d 39 (2004).

Documentation regarding claim presentment. - In a claim against an officer based on sexual assault, an inmate did not have to present documentation regarding claim presentment at the pleading stage. Billups v. Carter, 268 Va. 701 , 604 S.E.2d 414, 2004 Va. LEXIS 139 (2004).

Waiver of immunity. - This section, which requires a party with a claim against the Commonwealth of Virginia or one of its agencies to file a written statement describing the event and the agency or agencies alleged to be liable, is simply a notice requirement apprising the Attorney General or the Director of the Division of Risk Management of the essential facts of the claim, and its mention of state agencies was not a waiver of those agencies' sovereign immunity. Rector & Visitors of the Univ. of Va. v. Carter, 267 Va. 242 , 591 S.E.2d 76, 2004 Va. LEXIS 11 (2004).

Applied in McGuire v. Commonwealth, 988 F. Supp. 980 (E.D. Va. 1997); Ogunde v. Commonwealth, 271 Va. 639 , 628 S.E.2d 370, 2006 Va. LEXIS 45 (2006).

CIRCUIT COURT OPINIONS

Applicability. - Students' claims against the Commonwealth for the negligence of its employees did not fail, even though the students did not give a § 2.2-814 notice as § 2.2-814 was inapplicable since the Virginia Tort Claims Act, specifically § 8.01-195.6 contained its own notice provision. Long v. Commonwealth,, 2007 Va. Cir. LEXIS 78 (Norfolk Apr. 13, 2007).

Requirements. - Since the injured party's wrongful death claim against the Commonwealth lacked specificity as to the location of the incident where it stated "University of Virginia Health Sciences Center," it constituted invalid notice and the case had to be dismissed. Bates v. Commonwealth, 60 Va. Cir. 405, 2002 Va. Cir. LEXIS 410 (Charlottesville 2002). But see Bates v. Commonwealth, 276 Va. 387 , 593 S.E.2d 250 (2004).

Because the Tort Claims Act does not require notice of every count in a plaintiff's action against the Commonwealth but merely requires notice of the nature of the action, a motorist's notice to the Commonwealth of his accident and of his intention to bring, among other things, a negligent design claim concerning a county road did not restrict him to a negligent design claim and bar him from asserting other claims related to his accident where he then properly filed a statement of his negligence claim, encompassing negligent design, construction, maintenance, and/or signposting of the road, and he identified the specific time and place of the accident at issue, thereby giving the Commonwealth proper notice of the type of claim against it so it could investigate the incident, cure any dangerous conditions, and enter into settlement negotiations. Vivian v. Honda Motor Co., 64 Va. Cir. 297, 2004 Va. Cir. LEXIS 73 (Fairfax County 2004).

Student's notice of claim against defendants was sufficient where the Commonwealth did not need to inspect premises, or erect warning signs, or locate potential witnesses who were at a particular location on a particular date; the student complained about promises made in school documents and by school officials, and the location of those documents and officials at the time of the alleged promises was irrelevant. Goff v. J. Sargeant Reynolds Cmty. College, 65 Va. Cir. 479, 2004 Va. Cir. LEXIS 281 (Richmond 2004).

Notice adequate. - Notice of claim provided by a non-inmate plaintiff, who sued the Commonwealth under the Virginia Tort Claims Act to recover damages for injuries she sustained in a slip and fall accident on a wet floor at a state prison, satisfied the requirements of § 8.01-195.6 because the notice received by attorney general identified the specific prison facility where the slip and fall accident occurred and provided sufficient facts to place the Commonwealth in an adequate position to investigate and evaluate the claim. Jones v. Commonwealth, 72 Va. Cir. 590, 2004 Va. Cir. LEXIS 387 (Wise County 2004).

Notice inadequate. - Commonwealth's plea in bar was granted because the administrator had not adequately complied with the notice requirements of § 8.01-195.6 when the administrator's first notice was not mailed by certified mail and did not include the agency or agencies that the administrator alleged were liable. The second notice was again deficient for failing to name the agency allegedly liable, and no additional notices of claim were mailed in a timely manner. Ahari v. Fairfax County, 71 Va. Cir. 268, 2006 Va. Cir. LEXIS 141 (Fairfax County 2006).

Inmate's claim under the Virginia Tort Claims Act, § 8.01-195.1 et seq., was forever barred because the inmate's postage prepaid mailing of the required notice of claim failed to comply with the requirement under § 8.01-195.6 , for the mailing of the notice of claim via the United States Postal Service by certified mail, return receipt requested. Spears v. Fairfax County Sheriff's Dep't,, 2007 Va. Cir. LEXIS 95 (Fairfax County June 19, 2007).

Although the Department of Conservation and Recreation received actual notice of a claim for personal injuries made by a state park visitor, the visitor's action for personal injuries failed because the notice of claim sent by the visitor did not strictly comply with the requirement that the liable agency be named within the notice. Truelove v. Commonwealth, 85 Va. Cir. 282, 2012 Va. Cir. LEXIS 190 (Surry County Aug. 29, 2012).

OPINIONS OF THE ATTORNEY GENERAL

§ 8.01-195.7. Statute of limitations.

Every claim cognizable against the Commonwealth or a transportation district under this article shall be forever barred, unless within one year after the cause of action accrues to the claimant the notice of claim required by § 8.01-195.6 is properly filed. An action may be commenced pursuant to § 8.01-195.4 (i) upon denial of the claim by the Attorney General or the Director of the Division of Risk Management or, in the case of a transportation district, by the chairman of the commission of that district or (ii) after the expiration of six months from the date of filing the notice of claim unless, within that period, the claim has been compromised and discharged pursuant to § 8.01-195.5 . All claims against the Commonwealth or a transportation district under this article shall be forever barred unless such action is commenced within 18 months of the filing of the notice of claim, or within two years after the cause of action accrues.

The limitations periods prescribed by this section and § 8.01-195.6 shall be subject to the tolling provision of § 8.01-229 and the pleading provision of § 8.01-235 . Additionally, claims involving medical malpractice in which the notice required by this section and § 8.01-195.6 has been given shall be subject to the provisions of § 8.01-581.9 . Notwithstanding the provisions of this section, if notice of claim against the Commonwealth was filed prior to July 1, 1984, any claimant so filing shall have two years from the date such notice was filed within which to commence an action pursuant to § 8.01-195.4 .

(1981, c. 449; 1984, cc. 638, 698; 1985, c. 514; 1986, c. 584; 1988, cc. 778, 801; 1992, c. 796; 2016, c. 772.)

Editor's note. - Acts 1986, c. 584, which amended this section, as amended by Acts 1988, c. 801, purported to provide for expiration of the provisions of the 1986 act on July 1, 1990. However, in light of the amendment and reenactment of this section by Acts 1988, cc. 778, 801, at the direction of the Code Commission, the expiration provisions of Acts 1986, c. 584, as amended in 1988, have been given no further effect.

Section 8.01-581.9 , which is referred to in the second sentence of the second paragraph, was repealed by Acts 1993, c. 928.

The 2016 amendments. - The 2016 amendment by c. 772 substituted "18" for "eighteen" and inserted "or within two years after the cause of action accrues" at the end of the first paragraph.

Law review. - For article, "Civil Rights and 'Personal Injuries': Virginia's Statute of Limitations for Section 1983 Suits," see 26 Wm. & Mary L. Rev. 199 (1985).

CASE NOTES

Applicability to inmate's tort action. - Inmate's negligence action against the Commonwealth of Virginia was not time-barred by the inmate statute, § 8.01-243.2 ; instead, § 8.01-195.7 , the statute of limitations of the Virginia Tort Claims Act, §§ 8.01-195.1 to 8.01-195.9 , controlled the action even if it related to conditions of confinement because it was a tort claim against the Commonwealth. Ogunde v. Commonwealth, 271 Va. 639 , 628 S.E.2d 370, 2006 Va. LEXIS 45 (2006).

CIRCUIT COURT OPINIONS

Personal injury action dismissed. - Since the victim did not commence a personal injury action against the Commonwealth within the required time and also failed to prove incapacity, the statute of limitations was not tolled; thus the victim's action was barred and dismissed. Sisk v. Commonwealth, 56 Va. Cir. 230, 2001 Va. Cir. LEXIS 452 (Charlottesville 2001).

Action not timely filed. - 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 § 8.01-2 29 A 1, and accordingly, the time period was not tolled. Hankins v. Commonwealth, 63 Va. Cir. 211, 2003 Va. Cir. LEXIS 168 (Lynchburg 2003).

In a medical malpractice case, the Commonwealth's plea of the statute of limitations was granted, as the pleadings, originally naming an agency, were not amended to name the Commonwealth as defendant until nearly four years after the statute of limitations of § 8.01-195.7 of the Virginia Tort Claims Act expired. Carter v. Commonwealth, 67 Va. Cir. 308, 2005 Va. Cir. LEXIS 164 (Charlottesville Apr. 28, 2005).

Decedent, by waiting approximately forty-three months after his statutory notice before attempting to join the Commonwealth as a party to his lawsuit for injuries, allowed the statute of limitations of § 8.01-195.7 to run. The decedent, recognizing that the Virginia Department of Transportation (VDOT) was the wrong party, made his motion to amend in order to change the name of the defendant from VDOT to the Commonwealth of Virginia, but even if the court accepted that motion as a request to add a party defendant, the statute of limitations for claims against the Commonwealth had already run. Hobson v. Francisco, 67 Va. Cir. 297, 2005 Va. Cir. LEXIS 161 (Roanoke County Apr. 26, 2005).

In a tort case brought by a pro se inmate, his claims against a correctional facility doctor were time-barred since, if the doctor was cloaked with sovereign immunity, then the Virginia Tort Claims Act controlled and the inmate's motion for judgment was untimely. On the other hand, if the doctor was not cloaked with sovereign immunity, then the Virginia Tort Claims Act did not apply; in that instance, the inmate's claim was barred by § 8.01-243.2 if the action related to the conditions of his confinement, or by subsection A of § 8.01-243 if it did not. Gillikin v. Dep't of Corr., 77 Va. Cir. 374, 2009 Va. Cir. LEXIS 111 (Brunswick County 2009).

In a pro se state inmate case brought pursuant to the Virginia Tort Claims Act, his motion for judgment against the Virginia Department of Corrections was untimely. Since he filed his claim on April 30, 2007, with the Division of Risk Management, he had to file his motion for judgment on or before October 30, 2008; however, he did not file his motion until November 20, 2008. Gillikin v. Dep't of Corr., 77 Va. Cir. 374, 2009 Va. Cir. LEXIS 111 (Brunswick County 2009).

§ 8.01-195.8. Release of further claims.

Notwithstanding any provision of this article, the liability for any claim or judgment cognizable under this article shall be conditioned upon the execution by the claimant of a release of all claims against the Commonwealth, its political subdivisions, agencies, and instrumentalities or against the transportation district, and against any officer or employee of the Commonwealth or the transportation district in connection with, or arising out of, the occurrence complained of.

(1981, c. 449; 1986, c. 584; 1991, c. 23.)

§ 8.01-195.9. Claims evaluation program.

The Division of Risk Management of the Department of the Treasury and the Attorney General shall develop cooperatively an actuarially sound program for identifying, evaluating and setting reserves for the payment of claims cognizable under this article.

(1988, c. 644; 2000, cc. 618, 632.)

The 2000 amendments. - The 2000 amendments by cc. 618 and 632 are identical, and substituted "the Treasury" for "General Services."

Article 18.2. Compensation for Wrongful Incarceration for a Felony Conviction.

§ 8.01-195.10. Purpose; action by the General Assembly required; definitions.

The purpose of this article is to provide directions and guidelines for the compensation of persons who have been wrongfully incarcerated in the Commonwealth. Compensation for wrongful incarceration is governed by Article IV, Section 14 of the Constitution of Virginia, which prohibits the General Assembly from granting relief in cases in which the courts or other tribunals may have jurisdiction and any individual seeking payment of state funds for wrongful incarceration shall be deemed to have waived all other claims. The payment and receipt of any compensation for wrongful incarceration shall be contingent upon the General Assembly appropriating funds for that purpose. This article shall not provide an entitlement to compensation for persons wrongfully incarcerated or require the General Assembly to appropriate funds for the payment of such compensation. No estate of or personal representative for a decedent shall be entitled to seek a claim for compensation for wrongful incarceration.
As used in this article: "Incarceration" or "incarcerated" means confinement in a local or regional correctional facility, juvenile correctional center, state correctional facility, residential detention center, or facility operated pursuant to the Corrections Private Management Act (§ 53.1-261 et seq.). "Wrongful incarceration" or "wrongfully incarcerated" means incarceration for a felony conviction for which (i) the conviction has been vacated pursuant to Chapter 19.2 (§ 19.2-327.2 et seq.) or 19.3 (§ 19.2-327.10 et seq.) of Title 19.2, or the person incarcerated has been granted an absolute pardon for the commission of a crime that he did not commit; (ii) the person incarcerated shall have entered a final plea of not guilty, or, regardless of the plea, the person incarcerated was convicted of a Class 1 felony, a Class 2 felony, or any felony for which the maximum penalty is imprisonment for life; and (iii) the person incarcerated did not by any act or omission on his part intentionally contribute to his conviction for the felony for which he was incarcerated. (2004, cc. 818, 840; 2010, cc. 496, 557; 2021, Sp. Sess. I, cc. 344, 345.)

Editor's note. - Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 3 provides: "That any person under a sentence of death imposed for an offense committed prior to July 1, 2021, but who has not been executed by July 1, 2021, shall have his sentence changed to life imprisonment, and such person who was 18 years of age or older at the time of the offense shall not be eligible for (i) parole, (ii) any good conduct allowance or any earned sentence credits under Chapter 6 ( § 53.1-186 et seq.) of Title 53.1 of the Code of Virginia, or (iii) conditional release pursuant to § 53.1-40.01 or 53.1-40.02 of the Code of Virginia."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cl. 4 provides: "That notwithstanding any other provision of law, no person may be sentenced to death or put to death on or after the effective date of this act [July 1, 2021] for any violation of law."

Acts 2021, Sp. Sess. I, cc. 344 and 345, cls. 5 provide: "That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4 of the Code of Virginia, the estimated amount of the necessary appropriation is $77,376 for periods of imprisonment in state adult correctional facilities and $0 for periods of commitment to the custody of the Department of Juvenile Justice."

The 2010 amendments. - The 2010 amendment by c. 496, in subsection B, substituted "or 19.3 ( § 19.2-327.10 et seq.) of Title 19.2, or the person incarcerated has been granted an absolute pardon for the commission of a crime that he did not commit" for "of Title 19.2" in the definition of "Wrongful incarceration."

The 2010 amendment by c. 557, in subsection B, inserted "or the person incarcerated has been granted an absolute pardon for the commission of a crime that he did not commit" in the definition of "Wrongful incarceration."

The 2021 Sp. Sess. I amendments. - The 2021 amendments by Sp. Sess. I, cc. 344 and 345, effective July 1, 2021, are identical, and substituted "shall" for "must" and "the person incarcerated was" for "any person sentenced to death, or" in clause (ii) in the definition of "Wrongful incarceration” in subsection B.

§ 8.01-195.11. Compensation for wrongful incarceration.

Any person who is convicted of a felony by a county or city circuit court of the Commonwealth and is wrongfully incarcerated for such felony may be awarded compensation in an amount equal to 90 percent of the inflation adjusted Virginia per capita personal income as reported by the Bureau of Economic Analysis of the U.S. Department of Commerce for each year of incarceration, or portion thereof.
Any compensation computed pursuant to subsection A and approved by the General Assembly shall be paid by the Comptroller by his warrant on the State Treasurer in favor of the person found to have been wrongfully incarcerated. The person wrongfully incarcerated shall be paid an initial lump sum equal to 20 percent of the compensation award with the remaining 80 percent of the principal of the compensation award to be used by the State Treasurer to purchase an annuity from any A+ rated company, including any A+ rated company from which the Virginia Lottery may purchase an annuity, to provide equal monthly payments to such person for a period certain of 25 years commencing no later than one year after the effective date of the appropriation; however, if such person's life expectancy, as calculated pursuant to the provisions of § 8.01-419 based on his age on the effective date of the appropriation, is less than 25 years, then, upon his election, the annuity period shall be equal to his life expectancy. The annuity shall provide that it shall not be sold, discounted, or used as securitization for loans and mortgages by the person awarded compensation. The annuity shall, however, contain beneficiary provisions providing for the annuity's continued disbursement in the event of the death of the person awarded compensation. All payments or costs of annuities under this section shall be made by check issued by the State Treasurer on warrant of the Comptroller. Notwithstanding the foregoing, in the event that the person wrongfully incarcerated is 60 years of age or older or is terminally ill, the General Assembly may (i) pay 100 percent of the compensation computed pursuant to subsection A as a lump sum to the person wrongfully incarcerated or (ii) purchase an annuity for a period certain that is less than 25 years. For the purposes of this section, "terminally ill" means that the individual has a medical prognosis, as certified by a licensed physician, that his life expectancy is five years or less if the illness runs its normal course.
Any person who is convicted of a felony by a county or city circuit court of the Commonwealth and is wrongfully incarcerated for such felony shall receive a transition assistance grant of $15,000 to be paid from the Criminal Fund, which amount shall be deducted from any award received pursuant to subsection B, within 30 days of receipt of the written request for the disbursement of the transition assistance grant to the Executive Secretary of the Supreme Court of Virginia. Payment of the transition assistance grant from the Criminal Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Executive Secretary of the Supreme Court of Virginia. In addition, such person shall be entitled to receive reimbursement up to $10,000 for tuition for career and technical training within the Virginia Community College System contingent upon successful completion of the training. Reimbursement for tuition shall be provided by the comprehensive community college at which the career or technical training was completed.
(2004, cc. 818, 840; 2010, c. 557; 2012, c. 675; 2014, c. 225; 2018, c. 302; 2020, cc. 326, 648.)

Editor's note. - At the direction of the Virginia Code Commission, the following changes were made to conform to Acts 2016, c. 588: substituted "U.S. Department of Commerce" for "United States Department of Commerce" in subsection A; and inserted "comprehensive" preceding "community college at which" in subsection C.

Acts 2020, c. 648, cl. 2 provides: "That nothing in this act shall be construed to require modification of or otherwise affect an annuity issued pursuant to the provisions of Article 18.2 ( § 8.01-195.10 et seq.) of Chapter 3 of Title 8.01 of the Code of Virginia prior to July 1, 2020."

Acts 2020, Sp. Sess. I, cc. 50 and 52, cl. 4 provides: "That the provisions of § 53.1-202.3 of the Code of Virginia, as amended by this act, shall apply retroactively to the entire sentence of any person who is confined in a state correctional facility and participating in the earned sentence credit system on July 1, 2022. If it is determined that, upon retroactive application of the provisions of § 53.1-202.3 of the Code of Virginia, as amended by this act, the release date of any such person passed prior to the effective date of this act [July 1, 2022], the person shall be released upon approval of an appropriate release plan and within 60 days of such determination unless otherwise mandated by court order; however, no person shall have a claim for wrongful incarceration pursuant to § 8.01-195.11 of the Code of Virginia on the basis of such retroactive application. If a person is released prior to completion of any reentry programs deemed necessary by the Department of Corrections on the person's most recent annual review or prior to completion of any programs mandated by court order, the person shall be required to complete such programs under probation, provided probation is mandated by the court and current community resources are sufficient to facilitate completion of the aforementioned programs."

The 2010 amendments. - The 2010 amendment by c. 557 inserted "inflation adjusted" in subsection A.

The 2012 amendments. - The 2012 amendment by c. 675 substituted "for each year of incarceration, or portion thereof" for "for each year, or portion thereof, of incarceration up to 20 years" at the end of subsection A.

The 2014 amendments. - The 2014 amendment by c. 225, substituted "Virginia Lottery" for "State Lottery Department" in subsection B.

The 2018 amendments. - The 2018 amendment by c. 302, in subsection C, inserted "within 30 days of receipt of the written request for the disbursement of the transition assistance grant to the Executive Secretary of the Supreme Court of Virginia" in the first sentence, added the second sentence; and made stylistic changes.

The 2020 amendments. - The 2020 amendment by c. 326 added the last paragraph of subsection B.

The 2020 amendment by c. 648 added "however, if such person's life expectancy, as calculated pursuant to the provisions of § 8.01-419 based on hi s age on the effective date of the appropriation, is less than 25 years, then, upon his election, the annuity period shall be equal to his life expectancy" to the second sentence in subsection B.

§ 8.01-195.12. Conditions for continued compensation.

Any person awarded compensation under this article who is subsequently convicted of a felony shall, immediately upon such conviction, not be eligible to receive any unpaid amounts from any compensation awarded and his beneficiaries shall not be eligible to receive any payments under an annuity purchased pursuant to subsection B of § 8.01-195.11 . Any unpaid amounts remaining under any annuity shall become the property of the Commonwealth and shall be deposited into the general fund of the state treasury. A1. Any person awarded compensation under this article who is subsequently incarcerated upon the revocation of parole or probation resulting from the commission of an act that constitutes a crime shall, during the period of such incarceration, forfeit any payments under an annuity purchased pursuant to subsection B of § 8.01-195.11 . Any forfeited amounts under any annuity shall become the property of the Commonwealth and shall be deposited into the general fund of the state treasury.
As a condition of receiving any compensation under this article, a person shall execute a release and waiver forever releasing (i) the Commonwealth or any agency, instrumentality, officer, employee, or political subdivision thereof, (ii) any legal counsel appointed pursuant to § 19.2-159 , and (iii) all other parties of interest, from any present or future claims the person receiving compensation may have against such enumerated parties and arising out of the factual situation in connection with the conviction for which compensation is being sought under this article. In addition, the person receiving compensation shall not have been awarded a finally adjudicated judgment in a court of law against or received any funds pursuant to a settlement agreement with any person or entity described in this subsection for compensation or damages arising out of the factual situation in connection with the conviction. (2004, cc. 818, 840; 2010, c. 557.)

Editor's note. - Acts 2018, cc. 502 and 503 enacted § 8.01-195.13 , and in cl. 7 provided: "That the provisions of § 8.01-195.12 of the Code of Virginia shall apply to any compensation awarded under this act."

Acts 2020, c. 326, cl. 3 provides: "That the provisions of § 8.01-195.12 of the Code of Virginia shall apply to any compensation awarded under this act."

The 2010 amendments. - The 2010 amendment by c. 557 added subsection A1.

§ 8.01-195.13. Compensation for certain intentional acts.

In any matter resulting in compensation for wrongful incarceration pursuant to this article, if a court of competent jurisdiction over the matter determines, or the court record clearly demonstrates, that the Commonwealth or any agency, instrumentality, officer or employee, or political subdivision thereof (i) intentionally and wrongfully fabricated evidence that was used to obtain the wrongful conviction in such manner and (ii) intentionally, willfully, and continuously suppressed or withheld evidence establishing the innocence of the person wrongfully incarcerated, including but not limited to suppression or withholding of evidence to the Governor for the purpose of clemency, the Commonwealth may compensate the person wrongfully incarcerated for such intentional acts. Such amount shall be in addition to any compensation awarded pursuant to § 8.01-195.11 and may be up to or equal to the amount of such compensation. The additional compensation shall be added to any amount awarded pursuant to § 8.01-195.11 , and the total compensation shall be paid pursuant to subdivision B of § 8.01-195.11 . Nothing provided in this section shall be interpreted to supplant, revoke, or supersede any other provision of this article applicable to the award of compensation for wrongful incarceration, and the additional compensation shall be subject to any conditions set forth in this article.
Any compensation awarded pursuant to this article that includes the additional compensation for intentional acts as set forth in subsection A shall not become effective and payable by the Commonwealth unless and until (i) the person wrongfully incarcerated executes the release and waiver pursuant to subsection B of § 8.01-195.12 and (ii) the instrumentality, or political subdivision thereof, employing any individual committing the intentional acts set forth in clauses (i) and (ii) of subsection A enters into an agreement with the person wrongfully incarcerated requiring such instrumentality or political subdivision to compensate the person with a sum at least equal to the total compensation provided pursuant to § 8.01-195.11 and this section. (2018, cc. 502, 503.)

Editor's note. - Acts 2018, cc. 502 and 503, cl. 7 provides: "That the provisions of § 8.01-195.12 of the Code of Virginia shall apply to any compensation awarded under this act."

Article 19. Actions by the Commonwealth.

§ 8.01-196. Comptroller to institute proceedings.

The Comptroller shall institute and prosecute all proceedings proper to enforce payment of money to the Commonwealth.

(Code 1950, § 8-758; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 104.

CASE NOTES

Collection of money payable under former § 15.1-73. - The Comptroller was granted exclusive authority under § 8-761 (see now § 8.01-198 ) to institute proceedings to collect money payable under former § 15.1-73 which prohibited city and town officials from having an interest in contracts with or claims against the city or town. Commonwealth v. Holland, 211 Va. 530 , 178 S.E.2d 506 (1971) (decided under prior law).

Applied in Commonwealth ex rel. Pross v. Board of Supvrs., 225 Va. 492 , 303 S.E.2d 887 (1983).

CIRCUIT COURT OPINIONS

Standing. - Plain language of the Virginia Debt Collection Act and §§ 8.01-196 and 8.01-198 demonstrated that the comptroller lacked standing in this action; the comptroller instituted proceedings to recover damages on an unliquidated claim, and there had been neither a determination of liability nor the damages amount chargeable to defendants, if found liable. Commonwealth ex rel. Von Moll v. HKS, Inc., 103 Va. Cir. 1, 2019 Va. Cir. LEXIS 442 (Richmond Apr. 23, 2019).

§ 8.01-197. In what name; when not to abate.

Any such action shall be in the name of the Commonwealth of Virginia except when it is on a bond payable to, or a contract made with, the Governor or some other person. And then it may be in the name of such Governor or other person for the use of the Commonwealth, notwithstanding such Governor or other person may have died, resigned, or been removed from office before the commencement of the action. And there shall be no abatement thereof, by reason of the death, resignation, or removal from office of any such plaintiff pending the action.

(Code 1950, § 8-760; 1977, c. 617.)

Cross references. - For rule of court on substitution of parties, see Rule 3:17.

Applied in Commonwealth v. Millsaps, 232 Va. 502 , 352 S.E.2d 311 (1987).

§ 8.01-198. Action, against whom instituted.

Any such action may be instituted against any person indebted or liable to the Commonwealth in any way whatever, and against his sureties, and against his and their personal representatives. And it may be made when the debt or liability is created or secured by a bond or other instrument, whether the same be payable to the Commonwealth or to any person acting in a public character on behalf of the Commonwealth, or be for the payment of money or the performance of other duties. Every judgment on any such motion shall be in the name of the Commonwealth.

(Code 1950, § 8-761; 1954, c. 550; 1977, c. 617.)

Cross references. - For rules of court relating to complaints and defendants answers, etc., see Rules 3:2 through 3:8.

CASE NOTES

Collection of money payable under former § 15.1-73. - The Comptroller was granted exclusive authority under § 8-758 (see now § 8.01-196 ) and § 8-761 (now this section) to institute proceedings to collect money payable under former § 15.1-73 which prohibited city and town officials from having an interest in contracts with or claims against the city or town. Commonwealth v. Holland, 211 Va. 530 , 178 S.E.2d 506 (1971) (decided under prior law).

CIRCUIT COURT OPINIONS

§ 8.01-199. Judgment, nature of.

On any such motion, the judgment shall be for so much principal and interest as would be recoverable by action. It may be also for fifteen per centum damages in addition thereto when the proceeding is against a treasurer, sheriff, or other collector, or his sureties, or his or their personal representatives, for taxes or other public money which ought to have been paid into the state treasury. In such proceeding, the court, in pronouncing judgment, may consider all the circumstances, and give judgment for the damages or not, or for such part of the damages, as it may deem proper.

(Code 1950, § 8-762; 1977, c. 617.)

§ 8.01-200. Mistakes against State corrected.

After a debt to the Commonwealth shall have been paid, if it appear that an error or mistake has been committed to its prejudice, whether before or after the issuing of execution, a motion may be made on ten days' notice against any person liable for the debt, for the amount of such error or mistake, and judgment may be given therefor, without interest or damages thereon.

(Code 1950, § 8-763; 1977, c. 617.)

§ 8.01-201. Execution; real estate to be sold.

In a writ of fieri facias upon a judgment or decree against any person indebted or liable to the Commonwealth, or against any surety of his, after the words "we command you that of the," the clerk shall insert the words "goods, chattels, and real estate," and conform the subsequent part of such writ thereto. And under any writ so issued, real estate may be taken and sold.

(Code 1950, § 8-764; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 96; 8A M.J. Executions, § 28.

§ 8.01-202. Execution, to whom issued.

An execution on behalf of the Commonwealth from the Circuit Court of the City of Richmond may, if the Comptroller see fit, be directed to any sheriff, of any political subdivision, and shall be served by any of such officers in whose hands the Comptroller may cause it to be placed.

(Code 1950, § 8-765; 1977, c. 617.)

§ 8.01-203. Goods and chattels liable before real estate.

Every writ of fieri facias, issued according to § 8.01-201 , shall be levied first on the goods and chattels of the person against whose estate such writ issued. If, in the political subdivision, the residence of such person, there are no goods and chattels liable thereto, or not a sufficiency thereof, then the officer having such writ shall levy it on the real estate of such person.

(Code 1950, § 8-766; 1977, c. 617.)

Michie's Jurisprudence. - For related discussion, see 5B M.J. Criminal Procedure, § 96.

CASE NOTES

Lack of notice. - Although lack of notice is not a prerequisite to the operation of former § 8.9-312 [see now § 8.9A-322 ], this section provides that "every contract or duty within this act imposes an obligation of good faith in its performance or enforcement." Accordingly, allegations and proof of a leading on, bad faith or inequitable conduct on the part of a secured party may affect the priorities established under former § 8.9-312 [see now § 8.9A-322 ] by estopping the assertion of a priority. Grossmann v. Saunders, 237 Va. 113 , 376 S.E.2d 66 (1989).

§ 8.01-204. Notice of sale of real estate; when sale to be made.

When a levy is so made upon real estate, the officer making it shall post notice thereof, and of the time and place of sale, at such public places as may seem to him expedient, and at the front door of the courthouse of the political subdivision in which the real estate is, on a court day. The time of selling real estate shall be not less than sixty nor more than ninety days from the time of posting the notice at the courthouse door. And the sale shall take place at the premises or at the door of the courthouse, as the officer may deem most advisable.

(Code 1950, § 8-767; 1977, c. 617.)

§ 8.01-205. How sale made.

If the amount of the execution be not sooner paid, such officer shall proceed, on the day mentioned in the notice, to sell at public auction the interest of the party against whom the execution issued in the real estate or so much thereof as the officer may deem sufficient; and if a part only be sold it shall be laid off in one parcel in such place and manner as the debtor or his agent may direct or, if he give no direction, as the officer may deem best.

(Code 1950, § 8-768; 1977, c. 617.)

§ 8.01-206. Terms of sale.

The sale shall be upon six months' credit; and if the land be not purchased for the Commonwealth, the officer shall take bond of the purchaser, with sureties, for the payment of the purchase money to the Commonwealth. Every such bond shall mention on what occasion the same was taken, and be returned to the office of the court from which the execution issued, and the clerk shall endorse thereon the date of its return.

(Code 1950, § 8-769; 1977, c. 617.)

Cross references. - As to effect of bonds given under this section, see §§ 8.01-209 , 8.01-210 .

Michie's Jurisprudence. - For related discussion, see 11A M.J. Judgments and Decrees, § 112.

§ 8.01-207. Who to collect purchase money and make deed; disposition of proceeds of sale.

On or before the maturity of such bond the sheriff or other officer who made the sale shall withdraw the bond from the clerk's office, leaving his receipt therefor and an attested copy thereof, and collect the same. So soon as the purchase money has been paid, the sheriff or other principal officer, or the deputy who acted in making the sale, shall, as commissioner, and in the name of the Commonwealth, convey the land to the purchaser by deed executed at his costs, reciting the execution, the sale and the price of the land. Such deed shall pass to the purchaser all the interest which the party against whom the execution issued had in the land at the date of the judgment or decree. Out of the money so collected the sheriff or officer who made the sale shall pay all costs attending such execution and sale, the costs of a survey, if there was one, all delinquent and unpaid taxes and levies on such land and the debt due the Commonwealth, and the residue, if any, he shall pay to the judgment debtor.

(Code 1950, § 8-770; 1977, c. 617.)

§ 8.01-208. When successor of officer to make deed.

When the officer and his deputy who acted in making the sale have both died or removed from the Commonwealth before making such deed, the same may be executed by any successor of such officer.

(Code 1950, § 8-771; 1977, c. 617.)

§ 8.01-209. Bond for purchase money to have force of judgment.

When any bond taken under § 8.01-206 becomes payable and is returned to the office of the court from which the execution issued, it shall have the force of a judgment against such of the obligors therein as may be then alive. Execution may be issued thereon against them. And the same shall be proceeded under in like manner as an execution issued on such a judgment or decree as is mentioned in § 8.01-201 , save only that the clerk shall endorse "no security is to be taken," and the officer shall govern himself accordingly and sell for ready money any real estate which he may levy on under the same.

(Code 1950, § 8-772; 1977, c. 617.)

§ 8.01-210. Judgment against deceased obligors.

A judgment may be obtained against the survivors of a deceased obligor of a bond taken under the provisions of § 8.01-206 by an action at law against the personal representative of such obligor.

(Code 1950, § 8-773; 1954, c. 550; 1977, c. 617.)

§ 8.01-211. When venditioni exponas issued to sheriff of adjacent county; what to contain.

When return is made on any execution on behalf of the Commonwealth that goods, chattels or real estate remain unsold for want of bidders, or to that effect, the clerk of the court from which such execution issued shall, when required by the Comptroller, issue a writ of venditioni exponas, directed to the sheriff of any county adjacent to that in which the levy was made that the Comptroller may designate. Such writ shall recite the execution under which the levy was made, the nature of such levy and return that the property remains unsold for the want of bidders and shall command the sheriff of such adjacent county, if the property remaining unsold be goods or chattels, to go into the county in which the levy was made and receive the same from the officer that made the levy and, whether the property be goods, chattels, or real estate, to sell the same.

(Code 1950, § 8-774; 1977, c. 617.)

CASE NOTES

Liability of purchaser who gets no land. - Where a sale was made of judgment debtor's interest in land under writ of venditioni exponas in behalf of the Commonwealth, which interest was absorbed by liens paramount to the writ, the purchaser must pay the price though he may get no land. Spotts v. Commonwealth, 85 Va. 531 , 8 S.E. 375 (1888) (decided under prior law).

§ 8.01-212. Officer to deliver to sheriff goods and chattels levied on.

The officer who made the levy shall deliver the goods and chattels to the sheriff to whom such writ of venditioni exponas may be directed, upon such sheriff's producing to him such writ and executing a receipt for such goods and chattels. If the officer shall fail to deliver the same and return be made on such writ to that effect, the court from which it issued, upon motion, may give judgment against him and his sureties for the whole sum that the execution amounted to at the time of such failure, with interest thereon from that time.

(Code 1950, § 8-775; 1977, c. 617.)

§ 8.01-213. Where same to be sold.

The sheriff to whom such writ of venditioni exponas is directed, shall sell the goods and chattels in the county where received, if they can be sold therein, and if not he shall cause them to be removed to the courthouse of his own county and there sold. The removal shall be at the costs of the party against whom the execution issued, and the sale under the execution shall be to raise the cost of removal, in addition to the amount which it would otherwise have been necessary to raise.

(Code 1950, § 8-776; 1977, c. 617.)

§ 8.01-214. Where real estate to be sold.

Such sheriff shall also sell the real estate levied on in the county wherein the levy was made, if it can be done, and if it cannot he shall make the sale at the courthouse of his own county.

(Code 1950, § 8-777; 1977, c. 617.)

§ 8.01-215. Return of officer when sale not made because of prior encumbrance.

In any case in which an officer, having an execution on behalf of the Commonwealth, shall decline levying it because of any previous conveyance, execution, or encumbrance, a return shall be made setting forth the nature of such conveyance, execution or encumbrance, in whose favor, and for what amount, and the court in which the conveyance or encumbrance is recorded, or from which the execution issued.

(Code 1950, § 8-778; 1977, c. 617.)

CASE NOTES

State's right to resort to court of equity. - The failure of an officer to comply with the provisions of this section did not affect the right of the State to pursue its remedy in a court of equity. Moreover, the right to sell the real estate of the defendants under execution did not deprive the State of the right, if it elected to exercise it, to resort to a court of equity to subject such real estate to the lien of its judgment. Commonwealth v. Ford, 70 Va. (29 Gratt.) 683 (1878) (decided under prior law).

§ 8.01-216. Comptroller's power to adjust old claims.

The Comptroller, with the advice of the Attorney General, may adjust and settle upon equitable principles, without regard to strict legal rules, any doubtful or disputed account or claim in favor of the Commonwealth which may have been standing on the books of his office not less than two years, and may, with the like advice, dismiss any proceedings instituted by him; but before such adjustment or settlement can in any wise affect the rights of the Commonwealth it shall be approved and endorsed by the Attorney General and shall then be submitted to the supervision of the judge of the Circuit Court of the City of Richmond, accompanied by a written statement signed by the Comptroller of the facts and reasons which, in his opinion, render such adjustment or settlement just and proper. When such judge endorses the same with his written approval, signed in his official character, it shall be considered and treated as valid and binding.

(Code 1950, § 8-779; 1977, c. 617.)

CASE NOTES

This section has no application to the submission by the Auditor (now Comptroller) to the judgment of a court of competent jurisdiction, and a settlement made in good faith, by and with the advice and consent of the Attorney General, who represented and conducted the litigation on behalf of the Commonwealth, is binding on both litigants. Commonwealth v. Schmelz, 116 Va. 62 , 81 S.E. 45 (1914) (decided under prior law).

Article 19.1. Virginia Fraud Against Taxpayers Act.

§ 8.01-216.1. Citation.

This article may be cited as the Virginia Fraud Against Taxpayers Act.

(2002, c. 842.)

Cross references. - As to discriminatory and retaliatory actions against citizen whistle blowers, see § 2.2-3010.1 .

Effective date. - This article became effective January 1, 2003.

Law review. - For article surveying developments in health care law in Virginia, see 37 U. Rich. L. Rev. 199 (2002).

For article reviewing case law and changes in legislation affecting Virginia construction law, see 40 U. Rich. L. Rev. 143 (2005).

For annual survey article, "Health Care Law," see 44 U. Rich. L. Rev. 473 (2009).

Michie's Jurisprudence. - For related discussion, see 17 M.J. State, § 25.

Applied in Lewis v. City of Alexandria, 287 Va. 474 , 756 S.E.2d 465, 2014 Va. LEXIS 65 (2014).

CIRCUIT COURT OPINIONS

Sovereign immunity barred Bowman claim brought under this section. - Sheriff's deputies had no right to bring a claim under Bowman v. State Bank of Keysville , 229 Va. 534 , 331 S.E.2d 797 (1985), for wrongful termination against the sheriff based on either § 15.2-1722 or the Virginia Fraud Against Taxpayers Act, § 8.01-216.1 et seq.; however, they did state a Bowman claim based on their duty under § 19.2-201 to report wrongful conduct. Bowman v. Hunt,, 2011 Va. Cir. LEXIS 116 (Franklin County Aug. 16, 2011).

Accord and satisfaction. - A plea in bar based on accord and satisfaction was overruled where the localities in the relator's Virginia Fraud Against Taxpayers Act, § 8.01-216.1 et seq., action were not named parties in the multidistrict litigation and had not signed the settlement agreements, and the settlement agreements were not negotiable instruments. Commonwealth ex rel. McShane v. Reichl, 104 Va. Cir. 55, 2019 Va. Cir. LEXIS 1193 (Norfolk Dec. 10, 2019).

Claim not stated. - Virginia Fraud Against Taxpayers Act, § 8.01-216.1 et seq., claim failed to state a claim as although approval of the records submitted by a bank could amount to approval of a false claim, subdivision A 2 of § 8.01-216.3 unequivocally stated that the false record or statement had to have been used to get a false or fraudulent claim paid or approved, and the accounting records or statements submitted by the bank did not amount to a claim. Commonwealth ex rel. FX Analytics v. Bank of N.Y. Mellon, 84 Va. Cir. 473, 2012 Va. Cir. LEXIS 40 (Fairfax County May 1, 2012).

§ 8.01-216.2. Definitions.

As used in this article, unless the context requires otherwise:

"Attorney General" means the Attorney General of Virginia, the Chief Deputy, other deputies, counsels or assistant attorneys general employed by the Office of the Attorney General and designated by the Attorney General to act pursuant to this article.

"Claim" means any request or demand, whether under a contract or otherwise, for money or property, regardless of whether the Commonwealth has title to the money or property, that (i) is presented to an officer, employee, or agent of the Commonwealth or (ii) is made to a contractor, grantee, or other recipient (a) if the money or property is to be spent or used on the Commonwealth's behalf or to advance a governmental program or interest and (b) if the Commonwealth provides or has provided any portion of the money or property requested or demanded or will reimburse such contractor, grantee, or other recipient for any portion of the money or property that is requested or demanded. For purposes of this article, "claim" does not include requests or demands for money or property that the Commonwealth has paid to an individual as compensation for employment with the Commonwealth or as income subsidy with no restriction on that individual's use of the money or property.

"Commonwealth" means the Commonwealth of Virginia, any agency of state government, and any political subdivision of the Commonwealth.

"Documentary material" means the original or any copy of any book, record, report, memorandum, paper, communication, tabulation, chart, or other document, or data compilations stored in or accessible through computer or other information retrieval systems, together with instructions and all other materials necessary to use or interpret such data compilations, and any product of discovery.

"Employee" includes an employee or officer of the Commonwealth.

"Employer" includes the Commonwealth.

"Investigation" means any inquiry conducted by an investigator for the purpose of ascertaining whether any person is or has been engaged in any violation of this article.

"Material" means having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.

"Obligation" means an established duty, whether or not fixed, arising from (i) an express or implied contractual, grantor-grantee, or licensor-licensee relationship; (ii) a fee-based or similar relationship; (iii) a statute or regulation; or (iv) the retention of any overpayment.

"Official use" means any use that is consistent with the law, regulations, and policies of the Commonwealth, including use in connection with (i) internal memoranda and reports of the Office of the Attorney General; (ii) communications between the Office of the Attorney General and a federal, state, or local government agency, or a contractor of a federal, state, or local government agency, undertaken in furtherance of an Office of the Attorney General investigation or prosecution of a case; (iii) interviews of any qui tam relator or other witness; (iv) oral examinations; (v) depositions; (vi) the preparation for and response to civil discovery requests; (vii) the introduction into the record of a case or proceeding; (viii) applications, motions, memoranda, and briefs submitted to a court or other tribunal; and (ix) communications with government investigators, auditors, consultants, experts, the counsel of other parties, arbitrators, and mediators, concerning an investigation, case, or proceeding.

"Person" includes any natural person, corporation, firm, association, organization, partnership, limited liability company, business or trust.

"Product of discovery" means (i) the original or duplicate of any deposition, interrogatory, document, thing, result of the inspection of land or other property, examination, or admission, which is obtained by any method of discovery in any judicial or administrative proceeding of an adversarial nature; (ii) any digest, analysis, selection, compilation, or derivation of any item listed in clause (i); and (iii) any index or other manner of access to any item listed in clause (i).

(2002, c. 842; 2011, cc. 651, 676.)

Editor's note. - Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 62 A, effective for the biennium ending June 30, 2022, provides:

"1. The Division of Debt Collection shall provide legal services and advice related to the collection of funds owed the Commonwealth, including the recovery of certain funds pursuant to the Virginia Fraud Against Taxpayers Act (FATA) ( § 8.01-216.1 et seq.) by the Commonwealth as defined by 8.01-216.2 . All agencies and institutions shall follow the procedures for collection of funds owed the Commonwealth as specified in §§ 2.2-518 and 2.2-4800 et seq. of the Code of Virginia, and all agencies, institutions, and political subdivisions shall follow the procedures for recovery of funds as specified in §§ 2.2-518 and 8.01-216.1 et seq. of the Code of Virginia, except as provided otherwise therein or in this act.

"2. The provisions of this section shall not apply to any investigations, litigation, or recoveries related to matters handled under the authority granted to the Medicaid Fraud Control Unit within the Department of Law pursuant to the provisions of 42 C.F.R. § 1007 et seq. All matters pertaining to the recovery of such Medicaid funds, including damages, fines, and penalties received pursuant to FATA, are specifically excluded from the provisions of this section."

Acts 2020, c. 1289, as amended by Acts 2021, Sp. Sess. I, c. 552, Item 62 C, effective for the biennium ending June 30, 2022, provides: "The Division of Debt Collection may contract with private collection agents for the collection of debts amounting to less than $15,000."

The 2011 amendments. - The 2011 amendment by c. 651 added the definitions for "Employee" and "Employer."

The 2011 amendment by c. 676 rewrote the definition for "Claim," which read: "'Claim' means any request or demand, whether under a contract or otherwise, for money or property that is made to a contractor, grantee, or other recipient if the Commonwealth provides any portion of the money or property that is requested or demanded, or if the Commonwealth will reimburse such contractor, grantee, or other recipient for any portion of the money or property that is requested or demanded"; and added the definitions for "Material," "Obligation," and "Official use."

Law review. - For annual survey article, "Local Government Law," see 46 U. Rich. L. Rev. 175 (2011).

CASE NOTES

"Person." - Attorney general had no authority to issue a civil investigative demand to the University of Virginia, under the Virginia Fraud Against Taxpayers Act, § 8.01-216.1 et seq., because the University was not a "person," as defined in the act, as: (1) Commonwealth agencies were not bound by statutes of general application unless named expressly or included by necessary implication; (2) university was a Commonwealth agency; and (3) § 8.01-216.2 did not expressly include the Commonwealth in the statute's definition of "person," and the statute's use of "corporation" did not include Commonwealth agencies. Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420 , 722 S.E.2d 626, 2012 Va. LEXIS 47 (2012).

University of Virginia was not a "person," as defined in Virginia Fraud Against Taxpayers Act, as the principle of noscitur a sociis showed a corporation included in that definition should be understood as a private sector entity, not a Commonwealth agency. Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420 , 722 S.E.2d 626, 2012 Va. LEXIS 47 (2012).

There was no waiver of sovereign immunity subjecting the Commonwealth to the false claims provision of Virginia Fraud Against Taxpayers Act. Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420 , 722 S.E.2d 626, 2012 Va. LEXIS 47 (2012).

Functional incongruities caused by defining a Commonwealth agency as a "person" under Virginia Fraud Against Taxpayers Act showed excluding an agency from that definition best refined the act as a consistent and harmonious whole so as to effectuate the legislative goal of the act. Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420 , 722 S.E.2d 626, 2012 Va. LEXIS 47 (2012).

Attorney General had no authority to issue a Civil Investigative Demand to the University of Virginia (UVA), under the Virginia Fraud Against Taxpayers Act (FATA), Va. Code Ann. § 8.01-216.1 et seq., because UVA was not a "person," as defined in FATA, as a reference to "agency" in Va. Code Ann. § 8.01-216.8 did not pertain directly to a "person" under FATA. Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420 , 722 S.E.2d 626, 2012 Va. LEXIS 47 (2012).

Transit authority not a corporation. - Trial court did not err in sustaining a board's demurrer in a suit challenging approval of a transit authority's special exception application; although "business and financial interest" had the same meaning as "business and financial relationship," and although the transit authority was the contract purchaser, the transit authority was a governmental agency, not a private corporation, and therefore was not a corporation within the meaning of subsection A of § 15.2-852 and afforded no opportunity for financial benefit to its unpaid directors. It therefore was not a "corporation" within the meaning of the statute. Newberry Station Homeowners Ass'n v. Bd. of Supervisors, 285 Va. 604 , 740 S.E.2d 548, 2013 Va. LEXIS 52 (2013).

Heightened pleading standard. - False Claim Act and Virginia Fraud Against Taxpayers Act claims were both subject to the heightened pleading requirements applicable to fraud claims. United States v. Riverside Healthcare Ass'n,, 2015 U.S. Dist. LEXIS 37134 (E.D. Va. Mar. 23, 2015).

Claim not stated. - Relators failed to plead sufficient factual matter to satisfy the particularity requirement for fraud with respect to their False Claims Act and Virginia Fraud Against Taxpayers Act claims where although they included particularized allegations that defendants overbilled specific individuals for certain services, they did not specifically allege that defendants presented claims for payment in connection with any individual claim enumerated in the complaint. Nor did their specific allegations of defendants' fraudulent conduct necessarily lead to a plausible inference that false claims were presented to the government. United States v. Riverside Healthcare Ass'n,, 2015 U.S. Dist. LEXIS 37134 (E.D. Va. Mar. 23, 2015).

CIRCUIT COURT OPINIONS

Meaning of "Commonwealth." - As used in the first sentence of subsection H of § 8.01-216.6 , the term Commonwealth was not limited to Virginia where the Attorney General was notified of the multidistrict litigation settlement, chose not to intervene in the instant action, and that construction did not affect the Attorney General's authority. Commonwealth ex rel. McShane v. Reichl, 104 Va. Cir. 55, 2019 Va. Cir. LEXIS 1193 (Norfolk Dec. 10, 2019).

§ 8.01-216.3. False claims; civil penalty.

Any person who:
1. Knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval;
2. Knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim;
3. Conspires to commit a violation of subdivision 1, 2, 4, 5, 6, 7, or 8;
4. Has possession, custody, or control of property or money used, or to be used, by the Commonwealth and knowingly delivers, or causes to be delivered, less than all such money or property;
5. Has possession, custody, or control of an illegal gambling device, as defined in § 18.2-325 , and knowingly conceals, avoids, or decreases an obligation to pay or transmit money to the Commonwealth that is derived from the operation of such device;
6. Is authorized to make or deliver a document certifying receipt of property used, or to be used, by the Commonwealth and, intending to defraud the Commonwealth, makes or delivers the receipt without completely knowing that the information on the receipt is true;
7. Knowingly buys or receives as a pledge of an obligation or debt, public property from an officer or employee of the Commonwealth who lawfully may not sell or pledge the property; or
8. Knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the Commonwealth or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Commonwealth; shall be liable to the Commonwealth for a civil penalty of not less than $10,957 and not more than $21,916, except that these lower and upper limits on liability shall automatically be adjusted to equal the amounts allowed under the Federal False Claims Act, 31 U.S.C. § 3729 et seq., as amended, as such penalties in the Federal False Claims Act are adjusted for inflation by the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended (28 U.S.C. § 2461 Note, P.L. 101-410), plus three times the amount of damages sustained by the Commonwealth. A person violating this section shall be liable to the Commonwealth for reasonable attorney fees and costs of a civil action brought to recover any such penalties or damages. All such fees and costs shall be paid to the Attorney General's Office by the defendant and shall not be included in any damages or civil penalties recovered in a civil action based on a violation of this section.
If the court finds that (i) the person committing the violation of this section furnished officials of the Commonwealth responsible for investigating false claims violations with all information known to the person about the violation within 30 days after the date on which the defendant first obtained the information; (ii) such person fully cooperated with any Commonwealth investigation of such violation; (iii) at the time such person furnished the Commonwealth with the information about the violation, no criminal prosecution, civil action, or administrative action had commenced with respect to such violation; and (iv) the person did not have actual knowledge of the existence of an investigation into such violation, the court may assess not less than two times the amount of damages that the Commonwealth sustains because of the act of that person. A person violating this section shall also be liable to the Commonwealth for the costs of a civil action brought to recover any such penalty or damages.
For purposes of this section, the terms "knowing" and "knowingly" mean that a person, with respect to information, (i) has actual knowledge of the information; (ii) acts in deliberate ignorance of the truth or falsity of the information; or (iii) acts in reckless disregard of the truth or falsity of the information and require no proof of specific intent to defraud.
Except as provided in subdivision A 5, this section shall not apply to claims, records, or statements relating to state or local taxes.
(2002, c. 842; 2004, c. 589; 2007, c. 569; 2011, c. 676; 2018, c. 624; 2020, c. 791.)

The 2004 amendments. - The 2004 amendment by c. 589 substituted "state or local taxes" for "income taxation as set forth in Title 58.1" in subsection D and made a minor stylistic change in subsection B.

The 2007 amendments. - The 2007 amendment by c. 569, in the paragraph following subdivision A 7, substituted "$5,500" for "$5,000" and "$11,000" for "$10,000"; and added the last paragraph in subsection A.

The 2011 amendments. - The 2011 amendment by c. 676, in subdivision A 1, deleted "to an officer or employee of the Commonwealth" following "presented"; in subdivision A 2, inserted "material" and deleted "paid or approved by the Commonwealth" from the end; rewrote subdivision A 3, which read: "Conspires to defraud the Commonwealth by getting a false or fraudulent claim allowed or paid"; in subdivision A 4, substituted "and knowingly delivers, or causes to be delivered, less than all such money or property" for "and, intending to defraud the Commonwealth or willfully to conceal the property, delivers, or causes to be delivered, less property than the amount for which the person receives a certificate or receipt"; in subdivision A 5, substituted "Is authorized" for "Authorizes"; in subdivision A 7, substituted "a false record or statement material to an obligation" for "a false record or statement to conceal, avoid, or decrease an obligation" and added "or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Commonwealth"; and made minor stylistic changes in subsections B and C.

The 2018 amendments. - The 2018 amendment by c. 624 rewrote the end of the first full paragraph, which formerly read "shall be liable to the Commonwealth for a civil penalty of not less than $5,500 and not more than $11,000, plus three times the amount of damages sustained by the Commonwealth."

The 2020 amendments. - The 2020 amendment by c. 791, in subdivision A 4, substituted "7, or 8" for "or 7"; inserted a new subdivision A 5 and renumbered accordingly; and, in subsection D, substituted "Except as provided in subdivision A 5, this" for "This."

Michie's Jurisprudence. - For related discussion, see 12B M.J. Master and Servant, § 11.

CASE NOTES

Jurisdiction. - Federal court lacked subject matter jurisdiction over qui tam complaint brought under Virginia Fraud Against Taxpayers Act (VFATA) because federal law did not create any cause of action in complaint and relators could have prevailed by proving that defendants violated state Medicaid regulations without showing any violation of federal law. Virginia ex rel. Hunter Labs., L.L.C. v. Virginia, 828 F.3d 281 (4th Cir. 2016).

CIRCUIT COURT OPINIONS

Staff members failed to state a claim for relief against counties pursuant to the statute because there was no allegation that met the actionable conduct in the statute; no fraud was alleged in any of the members' reports of mismanagement. Baldwin v. Baker, 94 Va. Cir. 366, 2016 Va. Cir. LEXIS 191 (Prince Edward County Oct. 11, 2016).

Complaint and amended complaint fell far short of the requirements for pleading fraud under the Virginia Fraud Against Taxpayers Act because a corporation could not know from the amended complaint what fraudulent claims or false statements it was alleged to have presented to a county water and sewer authority, who made them, to whom they were made, when, and how much the authority paid it in reliance on the claims or statements. Commonwealth ex rel. McShane,, 2019 Va. Cir. LEXIS 1581 (Norfolk Feb. 14, 2019).

Civil penalties assessed. - Defendants were assessed civil penalties of $1,298,000 for 236 separate violations of the Virginia Fraud Against Taxpayers Act based on the invoices defendants sent to using agencies, $1,298,000 for the 236 violations of the Act based on the invoices defendants sent to using agencies and $60,500 for the 11 violations of the Act based on the invoices defendants sent to using agencies; defendants were also assessed the Commonwealth's costs and fees under the Act. Commonwealth v. ProNurses, 91 Va. Cir. 197, 2015 Va. Cir. LEXIS 172 (Chesterfield County Sept. 24, 2015).

False statements material to false claims. - Defendants knowingly made 236 false statements material to false claims in violation of the Virginia Fraud Against Taxpayers Act as they made a claim on the government in the form of the invoices submitted in support of an actual claim for payment; defendants knowingly made these statements, and the statements were material to a false claim in that the false claim was based directly on the fraudulent pay rates that constituted the false statements. Commonwealth v. ProNurses, 91 Va. Cir. 197, 2015 Va. Cir. LEXIS 172 (Chesterfield County Sept. 24, 2015).

False statements material to obligation to pay money. - Defendants knowingly made 11 false statements material to an obligation to pay money to the Commonwealth in violation of the Virginia Fraud Against Taxpayers Act as they submitted monthly detailed usage reports to the Virginia Department of General Services that falsely stated what defendants had billed using agencies; defendant one either prepared or reviewed these monthly detailed usage reports and was aware of the appropriate reporting procedure in the contract, which imputed knowledge to both defendant one and defendant two, and the underreported monthly detailed usage reports contained false statements and allowed defendants to decrease the amount defendant two owed under the 2 percent surcharge in the contract. Commonwealth v. ProNurses, 91 Va. Cir. 197, 2015 Va. Cir. LEXIS 172 (Chesterfield County Sept. 24, 2015).

Treble damages awarded. - Commonwealth was awarded treble damages of $441,620.76 for each of two violations of the Virginia Fraud Against Taxpayers Act, wherein defendants submitted 236 fraudulent invoices to the Commonwealth and/or its agencies for payment under a contract to which they knew they were not entitled, and made 236 false statements material to false claims on the government in the form of the invoices in support of an actual claim for payment, but these treble damages merged as they stemmed from the same fraudulent conduct; defendants were also liable for treble damages of $10,761.00 for submitting 11 monthly detailed usage reports to the Virginia Department of General Services that falsely stated what defendants had billed using agencies. Commonwealth v. ProNurses, 91 Va. Cir. 197, 2015 Va. Cir. LEXIS 172 (Chesterfield County Sept. 24, 2015).

Submission of fraudulent invoices. - Defendants violated the Virginia Fraud Against Taxpayers Act by: (1) submitting 236 fraudulent invoices to the Commonwealth and/or its agencies for payment under a contract for monies to which they knew they were not entitled; and/or (2) continually overbilling with reckless disregard or in deliberate ignorance of what was allowed under the contract; and (3) failing to inform Commonwealth agencies that the pay rate the agencies requested was in excess of what was allowed under contract. Defendant one acted knowingly as she created or reviewed all invoices and oversaw defendant two's payroll and had actual knowledge of what defendant two was billing, what defendant two was paying its employees and what was allowed under the contract. Commonwealth v. ProNurses, 91 Va. Cir. 197, 2015 Va. Cir. LEXIS 172 (Chesterfield County Sept. 24, 2015).

§ 8.01-216.4. Attorney General; investigation, civil action.

The Attorney General shall investigate any violation of § 8.01-216.3 . If the Attorney General finds that a person has violated or is violating § 8.01-216.3 , the Attorney General may bring a civil action under this section.

(2002, c. 842.)

CIRCUIT COURT OPINIONS

Claim preclusion. - A plea in bar based on res judicata was sustained as to the relator's claim for treble damages, but overruled as to the relator's claim for civil penalties as the class had not adequately represented Virginia's legal right to enforce its penal statutes. Commonwealth ex rel. McShane v. Reichl, 104 Va. Cir. 55, 2019 Va. Cir. LEXIS 1193 (Norfolk Dec. 10, 2019).

§ 8.01-216.5. Civil actions filed by private persons; Commonwealth may intervene.

A person may bring a civil action for a violation of § 8.01-216.3 for the person and for the Commonwealth. The action shall be brought in the name of the Commonwealth. The action may be dismissed only if the court and the Attorney General give written consent to the dismissal and their reasons for consenting.
A copy of the complaint and written disclosure of substantially all material evidence and information the person possesses shall be served on the Commonwealth. The complaint shall be filed in camera, shall remain under seal for at least 120 days, and shall not be served on the defendant until the court so orders. The Commonwealth may elect to intervene and proceed with the action within 120 days after it receives both the complaint and the material evidence and information.
The Commonwealth may, for good cause shown, move the court for extensions of the time during which the complaint remains under seal. Any such motions may be supported by affidavits or other submissions in camera. The defendant shall not be required to respond to any motion for judgment filed under this section until twenty-one days after the complaint is unsealed and served upon the defendant.
Before the expiration of the 120-day period or any extensions obtained under subsection C, the Commonwealth shall proceed with the action, in which case the action shall be conducted by the Commonwealth, or notify the court that it declines to take over the action, in which case the person bringing the action shall have the right to prosecute the action.
When a person brings an action under this section, no person other than the Commonwealth may intervene or bring a related action based on the facts underlying the pending action.
(2002, c. 842; 2007, c. 569.)

The 2007 amendments. - The 2007 amendment by c. 569 substituted "complaint" for "motion for judgment" three times in subsection B and twice in subsection C.

CASE NOTES

Complaint under seal. - Where complaint under the Virginia Fraud Against Taxpayers Act alleged that defendant overcharged the Commonwealth of Virginia for Medicaid-reimbursable testing and provided kickbacks to healthcare providers to induce the referral of Medicaid business, relators' failure to seal the amended complaint was not a basis for dismissal because the amended complaint did not depart so profoundly from the original complaint as to contain new and substantially different allegations of fraud. Virginia v. Quest Diagnostics, Inc.,, 2014 U.S. Dist. LEXIS 69023 (E.D. Va. May 13, 2014).

CIRCUIT COURT OPINIONS

Dismissal of a qui tam action. - Dismissal of a qui tam action that was brought by a county employee was appropriate because neither the county attorney, nor the Attorney General of Virginia had a duty to represent the county employee, and the employee could not pursue a Virginia qui tam suit pro se. Commonwealth ex rel. Glean v. Supervisors of Fairfax Ct y.,, 2021 Va. Cir. LEXIS 8 (Fairfax County Jan. 11, 2021).

§ 8.01-216.6. Rights of private plaintiff and Commonwealth.

If the Commonwealth proceeds with the action, it shall have the primary responsibility for prosecuting the action, and shall not be bound by an act of the person bringing the action. Such person shall have the right to continue as a party to the action, subject to the limitations of this section.
The Commonwealth may dismiss the action notwithstanding the objections of the person initiating the action if the person has been notified by the Commonwealth of the filing of the complaint and the court has provided the person with an opportunity for a hearing on the complaint.
The Commonwealth may settle the action with the defendant notwithstanding the objections of the person initiating the action if the court determines, after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances. Upon a showing of good cause, such hearing may be held in camera. The Commonwealth may, for good cause shown, move the court for a partial lifting of the seal to facilitate the investigative process or settlement.
Upon a showing by the Commonwealth that unrestricted participation during the course of the litigation by the person initiating the action would interfere with or unduly delay the Commonwealth's prosecution of the case, or would be repetitious, irrelevant, or for purposes of harassment, the court may, in its discretion, impose limitations on the person's participation, such as (i) limiting the number of witnesses the person may call; (ii) limiting the length of the testimony of such witnesses; (iii) limiting the person's cross-examination of witnesses; and (iv) otherwise limiting the participation by the person in the litigation.
Upon a showing by the defendant that unrestricted participation during the course of the litigation by the person initiating the action would be for purposes of harassment or would cause the defendant undue burden or unnecessary expense, the court may limit the participation by the person in the litigation.
If the Commonwealth elects not to proceed with the action, the person who initiated the action shall have the right to conduct the action. If the Commonwealth so requests, it shall be served with copies of all pleadings filed in the action and shall be supplied with copies of all deposition transcripts at the Commonwealth's expense. When a person proceeds with the action, the court, without limiting the status and rights of the person initiating the action, may nevertheless permit the Commonwealth to intervene at a later date upon a showing of good cause.
Whether or not the Commonwealth proceeds with the action, upon a showing by the Commonwealth that certain actions of discovery by the person initiating the action would interfere with the Commonwealth's investigation or prosecution of a criminal or civil matter arising out of the same facts, the court may stay such discovery for a period of not more than sixty days. Such a showing shall be conducted in camera. The court may extend the sixty-day period upon a further showing in camera that the Commonwealth has pursued the criminal or civil investigation or proceedings with reasonable diligence and any proposed discovery in the civil action will interfere with the ongoing criminal or civil investigation or proceedings.
Notwithstanding the provisions of subsection B of § 8.01-216.5 , the Commonwealth may elect to pursue its claim through any alternate remedy available to the Commonwealth, including any administrative proceeding to determine a civil money penalty. If any such alternate remedy is pursued in another proceeding, the person initiating the action shall have the same rights in such proceeding as such person would have had if the action had continued under this section. Any finding of fact or conclusion of law made in such other proceeding that has become final shall be conclusive on all parties to an action under this article. For purposes of this subsection, a finding or conclusion is final if it has been finally determined on appeal to a court of competent jurisdiction of the Commonwealth, if the time for filing an appeal with respect to the finding or conclusion has expired, or if the finding or conclusion is not subject to judicial review. (2002, c. 842; 2007, c. 569.)

The 2007 amendments. - The 2007 amendment by c. 569 substituted "complaint" for "motion" twice in subsection B.

CIRCUIT COURT OPINIONS

Qui tam action. - As a county employee who brought a qui tam action was not provided with an opportunity for a hearing on the complaint at the Commonwealth of Virginia's request, the Commonwealth's motion to dismiss the complaint was inappropriate. Commonwealth ex rel. Glean v. Supervisors of Fairfax Ct y.,, 2021 Va. Cir. LEXIS 8 (Fairfax County Jan. 11, 2021).

§ 8.01-216.7. Award to private plaintiff.

Except as hereinafter provided, if the Commonwealth proceeds with an action brought by a person under § 8.01-216.5 , such person shall receive at least fifteen percent but not more than twenty-five percent of the proceeds of the action or settlement of the claim, depending upon the extent to which the person substantially contributed to the prosecution of the action. Where the action is one that the court finds to be based primarily on disclosures of specific information, other than information provided by the person bringing the action, relating to allegations or transactions in a criminal, civil, or administrative hearing, in a legislative, administrative, or Auditor of Public Accounts' report, hearing, audit, or investigation, or from the news media, the court may award such sums as it considers appropriate, but in no case more than ten percent of the proceeds, taking into account the significance of the information and the role of the person bringing the action in advancing the case to litigation. Any payment to a person under this section shall be made from the proceeds of the award. Any such person shall also receive an amount for reasonable expenses that the court finds to have been necessarily incurred, plus reasonable attorneys' fees and costs. All such expenses, fees, and costs shall be awarded against the defendant.
If the Commonwealth does not proceed with an action, the person bringing the action or settling the claim shall receive an amount that the court decides is reasonable for collecting the civil penalty and damages. The amount shall be not less than twenty-five percent and not more than thirty percent of the proceeds of the award or settlement and shall be paid out of the proceeds. Such person shall also receive an amount for reasonable expenses that the court finds to have been necessarily incurred, plus reasonable attorneys' fees and costs. All such expenses, fees, and costs shall be awarded against the defendant.
Whether or not the Commonwealth proceeds with the action, if the court finds that the action was brought by a person who planned and initiated the violation of § 8.01-216.3 upon which the action was brought, or if the person bringing the action is convicted of criminal conduct arising from his role in the violation of § 8.01-216.3 , that person shall be dismissed from the civil action and shall not receive any share of the proceeds of the action. Such dismissal shall not prejudice the right of the Commonwealth to continue the action.
If the Commonwealth does not proceed with the action and the person bringing the action conducts the action, the court may award to the defendant its reasonable attorneys' fees and expenses if the defendant prevails in the action and the court finds that the claim of the person bringing the action was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment.
(2002, c. 842.)

CASE NOTES

Relators entitled to percentage of gross proceeds. - Term proceeds in this section meant gross proceeds rather than net proceeds and thus, the relators were entitled to 25% of the gross proceeds of the settlement in their action alleging several laboratories inflated bills submitted to the Virginia Medicaid program. Commonwealth v. Commonwealth, ex rel., Hunter Labs., LLC, 296 Va. 32 , 817 S.E.2d 318, 2018 Va. LEXIS 100 (2018).

Damages. - Relators who originally filed claims under the Virginia Fraud Against Taxpayers Act, § 8.01-216.1 et seq., were awarded 20 percent of the settlement amount where the relators had reported a fraud that was previously unknown to the government, but the case still required substantial effort by the government to develop the necessary facts to win the lawsuit. United States v. Universal Health Servs.,, 2012 U.S. Dist. LEXIS 126036 (W.D. Va. Sept. 5, 2012).

In a Medicaid fraud qui tam action, relators were only entitled to 28% of the Commonwealth's share for claims that accrued from the Virginia Fraud Against Taxpayers Act's enactment through and until date when the settlement agreement was fully executed because the Act did not apply retroactively to claims pre-dating its enactment, and the "proceeds of the settlement" meant only the settlement agreement amount that was actually received by the Commonwealth after returning overpayments to the United States. Virginia ex rel. Hunter Labs LLC v. Quest Diagnostics Inc., 100 F. Supp. 3d 542 (E.D. Va. 2015), vacated, remanded, 828 F.3d 281 (4th Cir. 2016).

CIRCUIT COURT OPINIONS

Relators entitled to percentage of award. - Relators were entitled to 28% of the entire amount established in the settlement agreement because the Commonwealth chose not to intervene in the matter and it would be inequitable for the relators to be undercut for performing a valuable service on behalf of the government where the use of "or" in the context of the Virginia Fraud Against Taxpayers Act clearly indicated that a relator was entitled to the "proceeds of the award," meaning something decided by the trier of fact, or "the settlement," the parties chose the latter and entered into a settlement agreement, the Commonwealth was bound to the terms of that agreement, and the parties settled for $1.25 million as a penalty for the fraudulent conduct perpetrated by the defendants. Commonwealth ex rel. Hunter Labs., LLC v. Quest Diagnostics Inc., 95 Va. Cir. 323, 2017 Va. Cir. LEXIS 69 (Fairfax County Mar. 27, 2017), aff'd, 296 Va. 32 , 817 S.E.2d 318 (2018).

§ 8.01-216.8. Certain actions barred; relief from employment discrimination; waiver of sovereign immunity.

No court shall have jurisdiction over any action brought under this article by an inmate incarcerated within a state or local correctional facility as defined in § 53.1-1 .

No court shall have jurisdiction over an action brought under this article against any department, authority, board, bureau, commission, or agency of the Commonwealth, any political subdivision of the Commonwealth, a member of the General Assembly, a member of the judiciary, or an exempt official if the action is based on evidence or information known to the Commonwealth when the action was brought. For purposes of this section, "exempt official" means the Governor, Lieutenant Governor, Attorney General and the directors or members of any department, authority, board, bureau, commission or agency of the Commonwealth or any political subdivision of the Commonwealth.

In no event may a person bring an action under this article that is based upon allegations or transactions that are the subject of a civil suit or an administrative proceeding in which the Commonwealth is already a party.

The court shall dismiss an action or claim under § 8.01-216.5 unless opposed by the Commonwealth if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed in a criminal, civil or administrative hearing in which the Commonwealth or its agent is a party, in a Virginia legislative, administrative, or Auditor of Public Accounts' report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information. For purposes of this section, "original source" means an individual (i) who either prior to a public disclosure has voluntarily disclosed to the Commonwealth the information on which the allegations or transactions in a claim are based or (ii) who has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions and who has voluntarily provided the information to the Commonwealth before filing an action under this article.

Except as otherwise provided in this section, the Commonwealth shall not be liable for expenses a person incurs in bringing an action under this article.

Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent, or associated others in furtherance of an action under this article or other efforts to stop one or more violations of this article. Relief shall include reinstatement with the same seniority status that employee, contractor, or agent would have had but for the discrimination, two times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorney fees. Any relief awarded to an employee under this section shall be reduced by any amount awarded to the employee through a state or local grievance process. An action under this section may be brought in a court of competent jurisdiction for the relief provided in this section, but may not be brought more than three years after the date the discrimination occurred. This paragraph shall constitute a waiver of sovereign immunity and creates a cause of action by an employee against the Commonwealth if the Commonwealth is the employer responsible for the adverse employment action that would entitle the employee to the relief set forth in this paragraph.

(2002, c. 842; 2011, cc. 651, 676; 2012, c. 479; 2014, c. 403.)

Cross references. - As to discrimination and retaliatory actions against citizen whistle blowers, see § 2.2-3010.1 .

The 2011 amendments. - The 2011 amendment by c. 651, in the next-to-last paragraph, added the exception and made a related change; and in the last paragraph, added the third sentence and the last sentence.

The 2011 amendment by c. 676 rewrote the fifth paragraph, which read: "No court shall have jurisdiction over an action under this article based upon the public disclosure of allegations or transactions in a criminal, civil or administrative hearing, in a legislative, administrative, or Auditor of Public Accounts' report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information. For purposes of this section, 'original source' means an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Commonwealth before filing an action under this article that is based on the information"; and rewrote the last paragraph, which read: "Any employee who is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment by his employer because he has opposed any practice referenced in § 8.01-216.3 or because he has initiated, testified, assisted, or participated in any manner in any investigation, action or hearing under this article, shall be entitled to all relief necessary to make the employee whole. Such relief shall include reinstatement with the same seniority status such employee would have had but for the discrimination, two times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys' fees. An employee may bring an action in a court of competent jurisdiction for the relief provided in this section."

The 2012 amendments. - The 2012 amendment by c. 479 inserted "Virginia" preceding "legislative" in the first sentence of the fifth paragraph; and in the last paragraph, substituted "agent, or associated others in furtherance of an action under this article or other efforts" for "or agent on behalf of the employee, contractor, or agent or associated others in furtherance of others' efforts" in the first sentence and added "but may not be brought more than three years after the date the discrimination occurred" at the end of the next-to-last sentence.

The 2014 amendments. - The 2014 amendment by c. 403 deleted the first paragraph.

Law review. - For article, "Civil Practice and Procedure," see 45 U. Rich. L. Rev. 183 (2010).

Michie's Jurisprudence. - For related discussion, see 12B M.J. Master and Servant, § 11.

CASE NOTES

University of Virginia not a "person." - Attorney General had no authority to issue a Civil Investigative Demand to the University of Virginia, under the Virginia Fraud Against Taxpayers Act, § 8.01-216.1 et seq., because University of Virginia was not a "person," as defined in the act, as a reference to "agency" in § 8.01-216.8 did not pertain directly to a "person" under Fraud Against Taxpayers Act. Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420 , 722 S.E.2d 626, 2012 Va. LEXIS 47 (2012).

Remedies for retaliatory discharge. - Circuit court did not abuse its discretion in declining to award front pay and/or compensation for lost pension benefits in a former employee's wrongful termination action against a city because the court determined that the employee was made whole through the employee's other awards against the city, absent an award of pension compensation, and that his claim for pension compensation was otherwise subject to too much speculation. Lewis v. City of Alexandria, 287 Va. 474 , 756 S.E.2d 465, 2014 Va. LEXIS 65 (2014).

Retaliatory discharge. - Judgment sustaining a county's demurrer with regard to an employee's retaliatory discharge action under § 8.01-216.8 as barred by the doctrine of sovereign immunity was affirmed because § 8.01-216.8 did not contain an explicit waiver of sovereign immunity allowing employees of the Commonwealth and its political subdivisions to bring retaliatory discharge actions. Ligon v. County of Goochland, 279 Va. 312 , 689 S.E.2d 666, 2010 Va. LEXIS 26 (2010).

CIRCUIT COURT OPINIONS

Retaliatory discharge. - Plaintiffs' Bowman claim based on the Virginia Fraud Against Taxpayers Act was dismissed because sovereign immunity barred circuit courts from hearing Virginia Fraud Against Taxpayers Act claims or common-law claims based on the public policy of the Act brought by employees of the Commonwealth against one of its political subdivisions. Carter v. Hunt, 83 Va. Cir. 265, 2011 Va. Cir. LEXIS 259 (Franklin County Aug. 16, 2011).

Claim not stated. - Staff members failed to state a claim for relief against counties for wrongful discharge under the Virginia Fraud Against Taxpayers Act because they filed no action or formal grievance regarding the reported mismanagement, and they never included any allegation in their reports to the community services board that included fraud, false pretenses, conversion or conspiracy to commit any of those acts. Baldwin v. Baker, 94 Va. Cir. 366, 2016 Va. Cir. LEXIS 191 (Prince Edward County Oct. 11, 2016).

Staff members failed to state a claim for an intentional tort of wrongful discharge under the public policy of the Virginia Fraud Against Taxpayers Act; the statute provides a statutory right to relief for a class of persons exercising their lawful rights under the Act in the whistleblower provision, but the statute does not make an explicit statement of rights that a category of persons enjoy separate and apart from the aforementioned whistleblower provision. Baldwin v. Baker, 94 Va. Cir. 366, 2016 Va. Cir. LEXIS 191 (Prince Edward County Oct. 11, 2016).

§ 8.01-216.9. Procedure; statute of limitations.

A subpoena requiring the attendance of a witness at a trial or hearing conducted under this article may be served at any place in the Commonwealth.

A civil action under § 8.01-216.4 or 8.01-216.5 may not be brought (i) more than six years after the date on which the violation is committed or (ii) more than three years after the date when facts material to the right of action are known or reasonably should have been known by the official of the Commonwealth charged with responsibility to act in the circumstances, but in that event no more than ten years after the date on which the violation is committed, whichever occurs last.

If the Commonwealth elects to intervene and proceed with an action brought under § 8.01-216.5 , the Commonwealth may file its own complaint or amend the complaint of a person who has brought an action under § 8.01-216.5 to clarify or add detail to any claim in which the Commonwealth is intervening and to add any additional claim for which the Commonwealth contends it is entitled to relief. Any complaint filed by the Commonwealth pursuant to this paragraph shall relate back to the filing date of the complaint of the person who originally brought the action, to the extent that the claim of the Commonwealth arises out of the conduct, transactions, or occurrences set forth, or attempted to be set forth, in such person's complaint.

In any action brought under § 8.01-216.4 or 8.01-216.5 , the Commonwealth shall be required to prove all essential elements of the cause of action, including damages, by a preponderance of the evidence.

Notwithstanding any other provision of law, a final judgment rendered in favor of the Commonwealth in any criminal proceeding charging fraud or false statements, whether upon a verdict after trial or upon a plea of guilty or nolo contendere, shall estop the defendant from denying the essential elements of the offense in any action that involves the same transaction as in the criminal proceeding and which is brought under § 8.01-216.4 or 8.01-216.5 .

(2002, c. 842; 2007, c. 569; 2011, c. 676.)

The 2007 amendments. - The 2007 amendment by c. 569 inserted "8.01-216.4 or" in the second, next-to-last and last paragraphs.

The 2011 amendments. - The 2011 amendment by c. 676 added the third paragraph.

§ 8.01-216.10. Civil investigative demands; issuance; sharing information.

Whenever the Attorney General or his designee has reason to believe that any person may be in possession, custody, or control of any documentary material or information relevant to a false claims law investigation, the Attorney General or his designee may, before commencing a civil proceeding or making an election under this article, issue in writing and cause to be served upon such person, a civil investigative demand requiring such person (i) to produce such documentary material for inspection and copying, (ii) to answer in writing written interrogatories with respect to such documentary material or information, (iii) to give oral testimony concerning such documentary material or information, or (iv) to furnish any combination of such material, answers, or testimony.
Whenever a civil investigative demand is an express demand for any product of discovery, the Attorney General shall cause to be served, in any manner authorized by this article, a copy of such demand upon the person from whom the discovery was obtained and shall notify the person to whom such demand is issued of the date on which such copy was served.
Any information obtained by the Attorney General or his designee pursuant to this section may be shared with any qui tam relator and any state or federal governmental entity if the Attorney General or his designee determines that such information is necessary as part of any false claims investigation.
(2002, c. 842; 2011, c. 676; 2012, c. 479.)

The 2011 amendments. - The 2011 amendment by c. 676, in subsection A, twice inserted "or his designee" and inserted "or making an election"; and added subsection C.

The 2012 amendments. - The 2012 amendment by c. 479 inserted "and any state or federal governmental entity" in subsection C.

§ 8.01-216.11. Civil investigative demands; contents and deadlines.

Each civil investigative demand issued under this article shall state the nature of the conduct constituting the alleged violation of a false claims law that is under investigation, and the applicable provision of law alleged to be violated.

If such demand is for the production of documentary material, the demand shall (i) describe each class of documentary material to be produced with such definiteness and certainty as to permit such material to be fairly identified; (ii) prescribe a return date for each such class that will provide a reasonable period of time within which the material so demanded may be assembled and made available for inspection and copying; and (iii) identify the false claims law investigator to whom such material shall be made available.

If such demand is for answers to written interrogatories, the demand shall (i) set forth with specificity the written interrogatories to be answered; (ii) prescribe dates at which time answers to written interrogatories shall be submitted; and (iii) identify the false claims law investigator to whom such answers shall be submitted.

If such demand is for the giving of oral testimony, the demand shall (i) prescribe a date, time, and place at which oral testimony shall be commenced; (ii) identify a false claims law investigator who shall conduct the examination and the custodian to whom the transcript of such examination shall be submitted; (iii) specify that such attendance and testimony are necessary to the conduct of the investigation; (iv) notify the person receiving the demand of the right to be accompanied by an attorney and any other representative; and (v) describe the general purpose for which the demand is being issued and the general nature of the testimony, including the primary areas of inquiry that will be taken pursuant to the demand.

Any civil investigative demand that is an express demand for any product of discovery shall not be returned or returnable until twenty-one days after a copy of such demand has been served upon the person from whom the discovery was obtained.

The date prescribed for the commencement of oral testimony pursuant to a civil investigative demand issued under this article shall be a date that is not less than seven days after the date on which the demand is received, unless the Attorney General determines that exceptional circumstances are present that warrant the commencement of such testimony within a lesser period of time.

The Attorney General shall not authorize the issuance of more than one civil investigative demand for oral testimony by the same person unless the person requests otherwise or unless the Attorney General, after investigation, notifies that person in writing that an additional demand for oral testimony is necessary.

(2002, c. 842.)

§ 8.01-216.12. Civil investigative demands; protected material or information.

A civil investigative demand issued under this article shall not require the production of any documentary material, the submission of any answers to written interrogatories, or the giving of any oral testimony if such material, answers, or testimony would be protected from disclosure under (i) the standards applicable to subpoenas or subpoenas duces tecum issued by a court of this Commonwealth to aid in a grand jury investigation or (ii) the standards applicable to discovery requests under the Rules of the Supreme Court of Virginia, to the extent that the application of such standards to any such demand is appropriate and consistent with the provisions and purposes of this article.

Any such demand that is an express demand for any product of discovery supersedes any inconsistent order, rule, or provision of law, other than this section, preventing or restraining disclosure of such product of discovery to any person. Disclosure of any product of discovery pursuant to any such express demand does not constitute a waiver of any right or privilege that the person making such disclosure may be entitled to invoke to resist discovery of trial preparation materials.

(2002, c. 842.)

§ 8.01-216.13. Civil investigative demands; service and jurisdiction.

Any civil investigative demand issued under this article may be served by an investigator, or by any person authorized to serve process on individuals in the Commonwealth.

Any such demand or any petition filed under this article may be served upon any person who is not found within Virginia in such manner as the Rules of the Supreme Court of Virginia or the Code of Virginia prescribe for service of process outside Virginia. To the extent that the courts of this Commonwealth can assert jurisdiction over any such person consistent with due process, the courts of this Commonwealth shall have the same jurisdiction to take any action respecting compliance with the provisions of this article by any such person that the court would have if such person were personally within the jurisdiction of the court.

Service of any civil investigative demand issued under this article or of any petition filed under this article may be made upon a partnership, corporation, association, or other legal entity by (i) delivering an executed copy of such demand or petition to any partner, executive officer, managing agent, or general agent of the partnership, corporation, association, or entity, or to any agent authorized by appointment or by law to receive service of process on behalf of such partnership, corporation, association, or entity; (ii) delivering an executed copy of such demand or petition to the principal office or place of business of the partnership, corporation, association, or entity; or (iii) depositing an executed copy of such demand or petition in the United States mail by registered or certified mail, with a return receipt requested, addressed to such partnership, corporation, association, or entity at its principal office or place of business.

Service of any such demand or petition may be made upon any natural person by (i) delivering an executed copy of such demand or petition to the person, or (ii) depositing an executed copy of such demand or petition in the United States mail by registered or certified mail, with a return receipt requested, addressed to the person at the person's residence or principal office or place of business.

A verified return by the individual serving any civil investigative demand issued under this article or any petition filed under this article setting forth the manner of such service shall be proof of service. In the case of service by registered or certified mail, such return shall be accompanied by the return post office receipt of delivery of such demand.

(2002, c. 842.)

§ 8.01-216.14. Civil investigative demands; documentary material.

The production of documentary material in response to a civil investigative demand served under this article shall be made under a sworn certificate, in such form as the demand designates, by (i) in the case of a natural person, the person to whom the demand is directed, or (ii) in the case of a person other than a natural person, a person having knowledge of the facts and circumstances relating to such production and authorized to act on behalf of such person. The certificate shall state that all of the documentary material required by the demand and in the possession, custody, or control of the person to whom the demand is directed has been produced and made available to the investigator identified in the demand.

Any person upon whom any civil investigative demand for the production of documentary material has been served shall make such material available for inspection and copying to the investigator identified in such demand at the principal place of business of such person, or at such other place as the investigator and the person thereafter may agree and prescribe in writing, or as the court may direct. Such material shall be made available on the return date specified in such demand, or on such later date as the investigator may prescribe in writing. Such person may, upon written agreement between the person and the investigator, substitute copies for originals of all or any part of such material.

(2002, c. 842.)

§ 8.01-216.15. Civil investigative demands; interrogatories.

Each inquiry in a civil investigative demand served under this article shall be answered separately and fully in writing under oath and shall be submitted under a sworn certificate, in such form as the demand designates, by (i) in the case of a natural person, the person to whom the demand is directed, or (ii) in the case of a person other than a natural person, the person or persons responsible for answering each inquiry. If any inquiry is objected to, the reasons for the objection shall be stated in the certificate instead of an answer. The certificate shall state that all information required by the demand and in the possession, custody, control, or knowledge of the person to whom the demand is directed has been submitted. To the extent that any information is not furnished, the information shall be identified and reasons set forth with particularity regarding the reasons why the information was not furnished.

(2002, c. 842.)

§ 8.01-216.16. Civil investigative demands; oral examinations.

The examination of any person pursuant to a civil investigative demand for oral testimony served under this article shall be taken before an officer authorized to administer oaths under the laws of this Commonwealth or of the place where the examination is held. The officer before whom the testimony is to be taken shall put the witness on oath and shall, personally or by someone acting under the direction of the officer and in the officer's presence, record the testimony of the witness. The testimony shall be taken stenographically and shall be transcribed. When the testimony is fully transcribed, the officer before whom the testimony is taken shall promptly transmit a copy of the transcript of the testimony to the Attorney General. This section shall not preclude the taking of testimony by any means authorized by and in a manner consistent with the Rules of the Supreme Court of Virginia.
The investigator conducting the examination shall exclude from the place where the examination is held all persons except the person giving the testimony, the attorney for and any other representative of the person giving the testimony, the attorney for the Commonwealth, any person who may be agreed upon by the attorney for the Commonwealth and the person giving the testimony, the officer before whom the testimony is to be taken, and any court reporter taking such testimony.
The oral testimony of any person taken pursuant to a civil investigative demand served under this article shall be taken in the county or city within which such person resides, is found, or transacts business or in such other place as may be agreed upon by the investigator conducting the examination and such person.
When the testimony is fully transcribed, the investigator or the officer before whom the testimony is taken shall afford the witness, who may be accompanied by counsel, a reasonable opportunity to examine and read the transcript, unless such examination and reading are waived by the witness. Any changes in form or substance that the witness desires to make shall be entered and identified upon the transcript by the officer or the investigator, with a statement of the reasons given by the witness for making such changes. The transcript shall then be signed by the witness, unless the witness in writing waives the signing, is ill, cannot be found, or refuses to sign. If the transcript is not signed by the witness within thirty days after being afforded a reasonable opportunity to examine it, the officer or the investigator shall sign it and state on the record the fact of the waiver, illness, absence of the witness, or the refusal to sign, together with the reasons, if any, given therefor.
The officer before whom the testimony is taken shall certify on the transcript that the witness was sworn by the officer and that the transcript is a true record of the testimony given by the witness, and the officer or investigator shall promptly deliver the transcript, or send the transcript by registered or certified mail, to the Attorney General.
Upon payment of reasonable charges therefor, the investigator shall furnish a copy of the transcript to the witness only, except that the Attorney General may, for good cause, limit such witness to inspection of the official transcript of the witness' testimony.
Any person compelled to appear for oral testimony under a civil investigative demand may be accompanied, represented, and advised by counsel. Counsel may advise such person, in confidence, with respect to any question asked of such person. Such person or counsel may object on the record to any question, in whole or in part, and shall briefly state for the record the reason for the objection. An objection may be made, received, and entered upon the record when it is claimed that such person is entitled to refuse to answer the question on the grounds of any constitutional or other legal right or privilege. Such person may not otherwise object to or refuse to answer any question, and may not directly or through counsel otherwise interrupt the oral examination. If such person refuses to answer any question, a petition may be filed in the circuit court for an order compelling such person to answer such question. If such person refuses to answer any question on the grounds of the privilege against self-incrimination, the testimony of such person may be compelled in accordance with applicable law.
Any person appearing for oral testimony under a civil investigative demand issued under this article shall be entitled to the same fees and allowances paid to witnesses in the circuit court.
(2002, c. 842.)

§ 8.01-216.17. Civil investigative demands; custodian of documents; answers.

The Attorney General shall serve as custodian of documentary material, answers to interrogatories, and transcripts of oral testimony received under this article.
An investigator who receives any documentary material, answers to interrogatories, or transcripts of oral testimony under this section shall transmit them to the Attorney General. The Attorney General shall take physical possession of such material, answers, or transcripts and shall be responsible for the use made of them and for the return of documentary material.
The Attorney General may cause the preparation of such copies of documentary material, answers to interrogatories, or transcripts of oral testimony as may be required for official use by any investigator, or other officer or employee of the Attorney General or employee of the Department of State Police. Such material, answers, and transcripts may be used by any authorized investigator or other officer or employee in connection with the taking of oral testimony under this article.
Except as otherwise provided in this section, no documentary material, answers to interrogatories, or transcripts of oral testimony, or copies thereof, while in the possession of the Attorney General, shall be available for examination by any individual other than an investigator or other officer or employee of the Attorney General or employee of the Department of State Police authorized by the Attorney General. The prohibition on the availability of material, answers, or transcripts shall not apply if consent is given by the person who produced such material, answers, or transcripts, or, in the case of any product of discovery produced pursuant to an express demand for such material, consent is given by the person from whom the discovery was obtained. Nothing in this subsection is intended to prevent disclosure to the General Assembly, including any committee or subcommittee of the General Assembly, or to any other state agency for use by such agency in furtherance of its statutory responsibilities.
While in the possession of the Attorney General and under such reasonable terms and conditions as the Attorney General shall prescribe, (i) documentary material and answers to interrogatories shall be available for examination by the person who produced such material or answers, or by a representative of that person authorized by that person to examine such material and answers, and (ii) transcripts of oral testimony shall be available for examination by the person who produced such testimony or by a representative of that person authorized by that person to examine such transcripts.
Any attorney employed by the Office of the Attorney General designated to appear before any court, grand jury, or state agency in any case or proceeding may use any documentary material, answers to interrogatories, or transcripts of oral testimony in connection with any such case or proceeding as such attorney determines to be required. Upon the completion of any such case or proceeding, such attorney shall return to the custodian any such material, answers, or transcripts so delivered that have not passed into the control of the court, grand jury, or agency through introduction into the record of such case or proceeding.
If any documentary material has been produced by any person in the course of any investigation pursuant to a civil investigative demand under this article, and (i) any case or proceeding before the court or grand jury arising out of such investigation, or any proceeding before any state agency involving such material, has been completed, or (ii) no case or proceeding in which such material may be used has been commenced within a reasonable time after completion of the examination and analysis of all documentary material and other information assembled in the course of such investigation, the Attorney General shall, upon written request of the person who produced such material, return to such person any material, other than copies furnished to the investigator, or made for the Attorney General that has not passed into the control of any court, grand jury, or agency through introduction into the record of such case or proceeding.
(2002, c. 842; 2011, c. 676.)

The 2011 amendments. - The 2011 amendment by c. 676, in subsection C, deleted "who is authorized for such use by the Attorney General" from the end of the first sentence; and in subsection D, deleted the last sentence, which read: "Disclosure of information to any such other agency shall be allowed only upon application, made by the Attorney General to a circuit court, showing substantial need for the use of the information by such agency in furtherance of its statutory responsibilities."

§ 8.01-216.18. Civil investigative demands; judicial proceedings for noncompliance.

Whenever any person fails to comply with any civil investigative demand issued under this article, or whenever satisfactory copying or reproduction of any material requested in such demand cannot be done and such person refuses to surrender the material, the Attorney General may file in the appropriate circuit court for the county or city in which such person resides, is found, or transacts business, and serve upon such person a petition for a court order for the enforcement of the civil investigative demand.
Any person who has received a civil investigative demand issued under this article may file, in the circuit court of any county or city within which such person resides, is found, or transacts business, and serve upon the investigator identified in such demand a petition for an order of the court to modify or set aside the demand. In the case of a petition addressed to an express demand for any product of discovery, a petition to modify or set aside such demand may be brought only in the circuit court of the county or city in which the proceeding in which such discovery was obtained is or was last pending. Any petition under this section shall be filed (i) within twenty-one days after the date of service of the civil investigative demand, or at any time before the return date specified in the demand, whichever date is earlier, or (ii) within such longer period as may be prescribed in writing by any investigator identified in the demand.
The petition shall specify each ground upon which the petitioner relies in seeking relief, and may be based upon any failure of the demand to comply with the provisions of this article or upon any constitutional or other legal right or privilege of such person. During the pendency of the petition in the court, the court may stay, as it deems proper, the running of the time allowed for compliance with the demand, in whole or in part, except that the person filing the petition shall comply with any portions of the demand not sought to be modified or set aside.
In the case of any civil investigative demand issued under this article that is an express demand for any product of discovery, the person from whom such discovery was obtained may file, in the circuit court of the county or city in which the proceeding in which such discovery was obtained is or was last pending, and serve upon any investigator identified in the demand and upon the recipient of the demand a petition for a court order to modify or set aside those portions of the demand requiring production of any such product of discovery. Any petition under this subsection shall be filed (i) within twenty-one days after the date of service of the civil investigative demand or at any time before the return date specified in the demand, whichever date is earlier, or (ii) within such longer period as may be prescribed in writing by any investigator identified in the demand.
The petition shall specify each ground upon which the petitioner relies in seeking relief and may be based upon any failure of the demand from which relief is sought to comply with the provisions of this article, or upon any constitutional or other legal right or privilege of the petitioner. During the pendency of the petition, the court may stay, as it deems proper, compliance with the demand and the running of the time allowed for compliance with the demand.
At any time during which any custodian is in custody or control of any documentary material or answers to interrogatories produced, or transcripts of oral testimony given by any person in compliance with any civil investigative demand issued under this article, such person, and in the case of an express demand for any product of discovery, the person from whom such discovery was obtained, may file, in the circuit court of the county or city within which the office of such custodian is situated, and serve upon such custodian a petition for a court order to require the performance by the custodian of any duty imposed upon the custodian by this section. Whenever any petition is filed in any circuit court under this section, the court shall have jurisdiction to hear and determine the matter so presented, and to enter such order or orders as may be required to carry out the provisions of this section. Any final order so entered shall be subject to appeal in the same manner as appeals of other final orders in civil matters. Any disobedience of any final order entered under this section by any court shall be punished as contempt of the court.
Any documentary material, answers to written interrogatories, or oral testimony provided under any civil investigative demand issued under this article shall be exempt from disclosure under the Virginia Administrative Process Act (§ 2.2-4000 et seq.). (2002, c. 842.)

§ 8.01-216.19. Application of the Rules of the Supreme Court.

The Rules of the Supreme Court of Virginia shall apply to all proceedings under this article, except when those Rules are inconsistent with this article.

(2002, c. 842.)

Applied in Lewis v. City of Alexandria, 287 Va. 474 , 756 S.E.2d 465, 2014 Va. LEXIS 65 (2014).

Article 20. Change of Name.

§ 8.01-217. How name of person may be changed.

Any person desiring to change his own name, or that of his child or ward, may apply therefor to the circuit court of the county or city in which the person whose name is to be changed resides, or if no place of abode exists, such person may apply to any circuit court which shall consider such application if it finds that good cause exists therefor under the circumstances alleged. An incarcerated person may apply to the circuit court of the county or city in which such person is incarcerated. In case of a minor who has no living parent or guardian, the application may be made by his next friend. In case of a minor who has both parents living, the parent who does not join in the application shall be served with reasonable notice of the application pursuant to § 8.01-296 and, should such parent object to the change of name, a hearing shall be held to determine whether the change of name is in the best interest of the minor. It shall not be necessary to effect service upon any parent who files an answer to the application. If, after application is made on behalf of a minor and an ex parte hearing is held thereon, the court finds by clear and convincing evidence that such notice would present a serious threat to the health and safety of the applicant, the court may waive such notice.
Every application shall be under oath and shall include the place of residence of the applicant, the names of both parents, including the maiden name of his mother, the date and place of birth of the applicant, the applicant's felony conviction record, if any, whether the applicant is a person for whom registration with the Sex Offender and Crimes Against Minors Registry is required pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1, whether the applicant is presently incarcerated or a probationer with any court, and if the applicant has previously changed his name, his former name or names.
On any such application and hearing, if such be demanded, the court, shall, unless the evidence shows that the change of name is sought for a fraudulent purpose or would otherwise infringe upon the rights of others or, in a case involving a minor, that the change of name is not in the best interest of the minor, order a change of name.
No application shall be accepted by a court for a change of name of a probationer, person for whom registration with the Sex Offender and Crimes Against Minors Registry is required pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1, or incarcerated person unless the court finds that good cause exists for consideration of such application under the reasons alleged in the application for the requested change of name. If the court accepts the application, the court shall mail or deliver a copy of the application to the attorney for the Commonwealth for the jurisdiction where the application was filed and the attorney for the Commonwealth for any jurisdiction in the Commonwealth where a conviction occurred that resulted in the applicant's probation, registration with the Sex Offender and Crimes Against Minors Registry pursuant to Chapter 9 (§ 9.1-900 et seq.) of Title 9.1, or incarceration. The attorney for the Commonwealth where the application was filed shall be entitled to respond and represent the interests of the Commonwealth by filing a response within 30 days after the mailing or delivery of a copy of the application. The court shall conduct a hearing on the application and may order a change of name if, after receiving and considering evidence concerning the circumstances regarding the requested change of name, the court determines that the change of name (i) would not frustrate a legitimate law-enforcement purpose, (ii) is not sought for a fraudulent purpose, and (iii) would not otherwise infringe upon the rights of others. Such order shall contain written findings stating the court's basis for granting the order.
The provisions of subsection D are jurisdictional and any order granting a change of name pursuant to subsection D that fails to comply with any provision of subsection D is void ab initio. The attorney for the Commonwealth for the jurisdiction where such an application was filed has the authority to bring an independent action at any time to have such order declared void. If the attorney for the Commonwealth brings an independent action to have the order declared void, notice of the action shall be served upon the person who was granted a change of name who shall have 30 days after service to respond. If the person whose name was changed files a response objecting to having the order declared void, the court shall hold a hearing. If an order granting a change of name is declared void pursuant to this subsection, or if a person is convicted of perjury pursuant to § 18.2-434 for unlawfully changing his name pursuant to § 18.2-504.1 based on conduct that violates this section, the clerk of the court entering the order or the order of conviction shall transmit a certified copy of the order to (i) the State Registrar of Vital Records, (ii) the Department of Motor Vehicles, (iii) the State Board of Elections, (iv) the Central Criminal Records Exchange, and (v) any agency or department of the Commonwealth that has issued a license to the person where such license utilizes the person's changed name, if known to the court and identified in the court order.
The order shall contain no identifying information other than the applicant's former name or names, new name, and current address. The clerk of the court shall spread the order upon the current deed book in his office, index it in both the old and new names, and transmit a certified copy of the order and the application to the State Registrar of Vital Records and the Central Criminal Records Exchange. Transmittal of a copy of the order and the application to the State Registrar of Vital Records and the Central Criminal Records Exchange shall not be required of a person who changed his or her former name by reason of marriage and who makes application to resume a former name pursuant to § 20-121.4 .
If the applicant shall show cause to believe that in the event his change of name should become a public record, a serious threat to the health or safety of the applicant or his immediate family would exist, the chief judge of the circuit court may waive the requirement that the application be under oath or the court may order the record sealed and direct the clerk not to spread and index any orders entered in the cause, and a certified copy shall not be transmitted to the State Registrar of Vital Records or the Central Criminal Records Exchange. At such time as a name change order is received by the State Registrar of Vital Records, for a person born in the Commonwealth, together with a proper request and payment of required fees, the Registrar shall issue certifications of the amended birth record which do not reveal the former name or names of the applicant unless so ordered by a court of competent jurisdiction. Such certifications shall not be marked "amended" and show the effective date as provided in § 32.1-272 . Such order shall set forth the date and place of birth of the person whose name is changed, the full names of his parents, including the maiden name of the mother and, if such person has previously changed his name, his former name or names. (Code 1950, § 8-577.1; 1956, c. 402; 1973, c. 401; 1976, c. 115; 1977, cc. 457, 617; 1979, cc. 599, 603, 612; 1980, cc. 448, 455; 1981, c. 297; 1983, c. 335; 1985, c. 483; 1991, c. 144; 2003, c. 258; 2005, c. 579; 2014, c. 232; 2015, c. 631.)

REVISERS' NOTE.

Changes to former § 8-577.1 include: (1) notice to the parent not joining in the application shall be served rather than mailed and (2) the penal provision has been transferred to Title 18.2.

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Cross references. - As to constitutional authority of General Assembly to confer on courts power to change names, see Va. Const., Art. IV, § 14.

As to penalty for unlawful change of name, see § 18.2-504.1 .

As to change of name of adopted minor, see § 63.2-1209 .

As to deeming of an entry of a final order of adoption of certain persons over the age of 18 as meeting the requirements of § 8.01-217 , see § 63.2-1243 .

Editor's note. - Pursuant to § 30-152 and Acts 1977, c. 617, cl. 4, the Code Commission has given effect, in § 8.01-217 as set out above, to the amendment to former § 8-577.1, corresponding to this section, in Acts 1977, c. 457. The amendment inserted "without regard to sex" in the second sentence of the second paragraph and added the present third and fourth sentences of the second paragraph.

Acts 1993, c. 929, cl. 3, as amended by Acts 1994, c. 564, cl. 1, and Acts 1996, c. 616, cl. 3, provides that the amendment to this section by Acts 1993, c. 929, cl. 1, shall become effective June 1, 1998, "only if state funds are provided by the General Assembly sufficient to provide adequate resources, including all local costs, for the court to carry out the purposes of this act and to fulfill its mission to serve children and families of the Commonwealth." The funding was not provided.

The 2003 amendments. - The 2003 amendment by c. 258 divided the former two paragraphs of the section into present subsections A through D; and in subsection C, substituted "a case involving" for "case of," divided a former sentence into the present first and third sentences by deleting "and" following "order a change of name," inserted the present second sentence, and inserted "of the order and the application" in the third and fourth sentences.

The 2005 amendments. - The 2005 amendment by c. 579, in subsection A, inserted "pursuant to § 8.01-296 " preceding "and, should such parent" and added the fifth sentence.

The 2014 amendments. - The 2014 amendment by c. 232 in subsection A deleted the second sentence which read "Applications of probationers and incarcerated persons may be accepted if the court finds that good cause exists for such application."; in subsection B inserted "whether the applicant is a person for whom registration with the Sex Offender and Crimes Against Minors Registry is required pursuant to Chapter 9 ( § 9.1-900 et seq.) of Title 9.1"; added subsections D and E, and designated the former second paragraph of subsection C as subsection F and former subsection D as subsection G.

The 2015 amendments. - The 2015 amendment by c. 631 in subsection E, inserted the clause (i) through (v) designations and added "if known to the court and identified in the court order" at the end; in subsection G, substituted "a certified copy shall not be transmitted" for "shall not transmit a certified copy" and "At such time as a name change order is received" for "Upon receipt of such order."

Law review. - For comment on married women's names, see 11 U. Rich. L. Rev. 121 (1976). For survey of Virginia law on domestic relations for the year 1975-1976, see 62 Va. L. Rev. 1431 (1976). For survey of Virginia domestic relations law for the year 1977-1978, see 64 Va. L. Rev. 1439 (1978). For survey of Virginia law on domestic relations for the year 1978-1979, see 66 Va. L. Rev. 281 (1980). For an overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981).

For note on the rights of parents in their children's surnames, see 70 Va. L. Rev. 1303 (1984).

Michie's Jurisprudence. - For related discussion, see 4C M.J. Constitutional Law, § 77; 6A M.J. Divorce and Alimony, § 53; 13B M.J. Names, § 6; 14B M.J. Prisons and Prisoners, § 2.

CASE NOTES

I. Decisions Under Current Law.
- A. General Consideration.
- B. Minors.
II. Decisions Under Prior Law.

I. DECISIONS UNDER CURRENT LAW.

A. GENERAL CONSIDERATION.

Provisions as to incarcerated persons violate First Amendment. - This section violated U.S. Const., Amend. 1, insofar as it withheld legal recognition of a prisoner's religiously motivated change of name. Barrett v. Virginia, 689 F.2d 498 (4th Cir. 1982).

And are not justified by considerations of prison discipline. - The categorical refusal, embodied in this section, to accord legal recognition to religious names adopted by incarcerated persons was not reasonably and substantially justified by considerations of prison discipline and order. In this respect, therefore, this section offended against the free exercise of religion guaranteed by U.S. Const., Amend. 1. Barrett v. Virginia, 689 F.2d 498 (4th Cir. 1982).

Inmates. - Trial court did not abuse its discretion in denying an inmate's petition to change his name. The Supreme Court could not say that the basis articulated by the trial court for denying the petition, i.e., that the application would frustrate a legitimate law-enforcement purpose and thus the provisions of subsection D of § 8.01-217 were not satisfied, fell outside the scope of its broad discretion. Jordan v. Commonwealth, 295 Va. 70 , 809 S.E.2d 622, 2018 Va. LEXIS 10 (2018).

Gender change. - Trial court abused its discretion in denying an inmate's application for a name change and in holding that good cause did not exist because the inmate had been diagnosed with Gender Identity Disorder and was transitioning from the male gender to the female gender, the General Assembly had already recognized that a shift in a person's gender was a valid reason to change his or her name and to amend that person's vital records, and there was nothing in the record to indicate that the inmate's name change was sought with frivolous intentions or that the name change would have any negative impact on the community. In re Brown, 289 Va. 343 , 770 S.E.2d 494, 2015 Va. LEXIS 54 (2015).

Transgender inmate's application for a name change contained the information required by subsection B of § 8.01-217 and articulated legitimate, nonfrivolous reasons supporting the requested name change. The circuit court abused its discretion by finding that good cause did not exist for consideration of the inmate's application and by employing an inappropriate procedure to make that determination. Leonard v. Commonwealth, 296 Va. 479 , 821 S.E.2d 551, 2018 Va. LEXIS 184 (Dec. 13, 2018).

Circuit court's abuse of discretion in denying name change application. - Circuit court abused its discretion when it implicitly found that the good cause necessary under subsection A of § 8.01-217 for further consideration of an inmate's application for a religion based name change was lacking; the finding was not supported by the record, and a remand was required for further consideration of the application under subsection C of § 8.01-217 . Stephens v. Commonwealth, 274 Va. 157 , 645 S.E.2d 276, 2007 Va. LEXIS 75 (2007).

Circuit court erred in dismissing an inmate's application to change his name for lack of good cause without a hearing because the inmate's alleged religious basis for the change of name constituted good cause for the application to be accepted for further review, prior convictions, standing alone, were not a proper reason to refuse to consider the application, the only factor statutorily relevant to the determination of the adequacy of the inmate's reason for filing the application was the reason alleged by the inmate in the application, and it could not be discerned, without evidence, whether the inmate's alleged religious conversion was sincere and that a name change was actually a "tenet" of the "Native American" faith. In re Dennis, 294 Va. 1 , 802 S.E.2d 811 (2017).

Insufficient evidence of forgery of a public record. - Sufficient evidence did not support defendant's forgery of a public record convictions because the evidence did not show defendant completed Department of Motor Vehicles applications using a false or fictitious name, as, despite defendant's failure to change defendant's name in Virginia pursuant to statutory procedures, defendant testified defendant changed defendant's name in Panama and presented substantial supporting documentary evidence in the form of a United States passport in the name defendant used to complete the applications, and no evidence showed the passport was invalid. Thompson v. Commonwealth, No. 0262-18-2, 2019 Va. App. LEXIS 80 (Apr. 9, 2019).

B. MINORS.

Mother's petition to change child's name over father's objection. - This section requires that a parent, who seeks to change a child's surname over the objection of the other parent, demonstrate with satisfactory evidence that the requested name change is in the child's best interest. Generally, a change will be ordered only if: (1) the father has abandoned the natural ties ordinarily existing between parent and child, (2) the father has engaged in misconduct sufficient to embarrass the child in the continued use of the father's name, (3) the child otherwise will suffer substantial detriment by continuing to bear the father's name or (4) the child is of sufficient age and discretion to make an intelligent choice and he desires that his name be changed. But, a change of name will not be authorized against the father's objection merely to save the mother and child minor inconvenience or embarrassment. May v. Grandy, 259 Va. 629 , 528 S.E.2d 105, 2000 Va. LEXIS 62 (2000).

Burden of proof. - Where there was no evidence that a child would suffer any form of detriment by continuing to use the mother's surname and the mother had not failed to care for the child or engaged in misconduct sufficient to embarrass the child in the continued use of the mother's surname, a father did not offer sufficient evidence to show that a name change was in a minor child's best interest; as a result, the trial court abused its discretion by ordering the change in the child's surname. Spero v. Heath, 267 Va. 477 , 593 S.E.2d 239, 2004 Va. LEXIS 30 (2004).

Best interest controlling standard. - In the context of a name change for a child, the controlling standard remains the same - that the petitioning party must prove by satisfactory evidence that the change is in the child's best interest, and the trial court did not err in relying on case law to determine whether the name change in this case was in the child's best interest. McMahon v. Wirick, 288 Va. 197 , 762 S.E.2d 781, 2014 Va. LEXIS 120 (Sept. 12, 2014).

Burden of proving change in children's best interest. - Under this section, where a parent seeks to change the surname of a child, the burden is upon the petitioning parent, under the circumstances, to prove by satisfactory evidence that the change is in the child's best interests. Rowland v. Shurbutt, 259 Va. 305 , 525 S.E.2d 917 (2000).

No substantial detriment to child. - Evidence presented by the father involved the inconveniences and embarrassment that he felt as a result of having a different surname, and he failed to produce any evidence that the child suffered any such embarrassment or that she suffered substantial detriment; the trial court did not abuse its discretion in denying the father's name change petition. McMahon v. Wirick, 288 Va. 197 , 762 S.E.2d 781, 2014 Va. LEXIS 120 (Sept. 12, 2014).

An unwed parent, as well as a married parent, has standing to object to a minor child's change of name. Beyah v. Shelton, 231 Va. 432 , 344 S.E.2d 909 (1986).

Change from name of father to that of stepfather held not in child's best interest. - Evidence failed to support the trial court's finding that the change of name of four-year-old child from that of her father, who had never married her mother, to that of her stepfather was in the child's best interest, where the father visited his daughter on a regular basis, made regular support payments, and had a close parental relationship with her, and where there was no evidence that the father had engaged in any misconduct that would embarrass or otherwise harm his daughter if she continued using his name. Beyah v. Shelton, 231 Va. 432 , 344 S.E.2d 909 (1986).

Where neither party shares a surname with child. - In the context of a name change of a minor, where, as here, neither party shares a surname with the child, any potential damage would be negligible, and thus the relevance of sharing a surname is necessarily diminished and was not dispositive of the present case. McMahon v. Wirick, 288 Va. 197 , 762 S.E.2d 781, 2014 Va. LEXIS 120 (Sept. 12, 2014).

II. DECISIONS UNDER PRIOR LAW.

A. GENERAL CONSIDERATION.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

Common law. - Under the common law, a person is free to adopt any name if it is not done for a fraudulent purpose or in infringement upon the rights of others. In re Strikwerda, 216 Va. 470 , 220 S.E.2d 245 (1975); In re Miller, 218 Va. 939 , 243 S.E.2d 464 (1978).

Section implements constitutional mandate. - Virginia Const., Art. IV, § 14 provides that "the General Assembly shall confer on the courts power to . . . change the names of persons." The General Assembly has carried out its constitutional mandate by the enactment of this section. In re Strikwerda, 216 Va. 470 , 220 S.E.2d 245 (1975).

There is nothing in this section, or in the common law, requiring a showing of a compelling need to justify a change of name. Such a requirement would be inconsistent with the common-law principle that names may be changed in the absence of a fraudulent purpose. In re Miller, 218 Va. 939 , 243 S.E.2d 464 (1978).

Notice to creditors is not an express requirement under this section. In re Miller, 218 Va. 939 , 243 S.E.2d 464 (1978).

Relief under § 59.1-69 et seq., not co-extensive with that under this section. - The relief afforded by § 59.1-69 et seq., relating to transacting business under an assumed name, is not co-extensive with that afforded by this section. In re Miller, 218 Va. 939 , 243 S.E.2d 464 (1978).

Section provides no effective procedure for challenging petitioner's evidence that the petition was not filed for an unlawful purpose. This is a statutory omission that may deserve consideration by the General Assembly. In re Strikwerda, 216 Va. 470 , 220 S.E.2d 245 (1975).

Inclusion in this section of criminal penalties for one who unlawfully "changes his name or assumes another name" suggests that, in the absence of an illegal purpose, a change of name petition should be granted. In re Strikwerda, 216 Va. 470 , 220 S.E.2d 245 (1975).

B. MINORS.

Continued use of divorced father's name. - Where the mother offered only slight evidence showing nothing more than "minor inconvenience or embarrassment," to support her application for change of names of her children, and, on the other hand, the evidence was overwhelming that the father had not abandoned the natural ties with his children, that he had not engaged in misconduct which would embarrass the children in the continued use of his name, and that otherwise it would not be detrimental to the children to continue to bear the father's name, in these circumstances, the finding is not warranted that a change of names would serve the children's best interest. Flowers v. Cain, 218 Va. 234 , 237 S.E.2d 111 (1977).

Change of child's name where divorced father objects. - When a divorce occurs and the mother is awarded custody, usually it is in the child's best interest to maintain and encourage rather than weaken the relationship between father and child. Generally, a name change of a child will not be ordered over the father's objection unless: (a) The father has abandoned the natural ties ordinarily existing between parent and child; (b) he has engaged in misconduct sufficient to embarrass the child; (c) the child will suffer substantial detriment in continued use of father's name; or (d) the child is of sufficient age and discretion to make an intelligent choice and desires to change the name. Flowers v. Cain, 218 Va. 234 , 237 S.E.2d 111 (1977).

In the face of an objection by the natural father to the changing of his children's names and the absence of substantial reasons, the change should not be ordered. Flowers v. Cain, 218 Va. 234 , 237 S.E.2d 111 (1977).

Burden of proving change in children's best interest. - In a hearing on the objection by a natural father to the changing of his children's names, the burden was upon the mother to prove by satisfactory evidence that a change in the children's names would be in their best interest. Flowers v. Cain, 218 Va. 234 , 237 S.E.2d 111 (1977) (decided prior to 1979 amendments).

Six and seven-year old children held too young to make intelligent choice. - Where one child was only six years old and the other only seven at the time of the hearing on the objection of their natural father to changing their names, neither child was capable of making an intelligent choice in the matter of his name. Flowers v. Cain, 218 Va. 234 , 237 S.E.2d 111 (1977).

C. MARRIED WOMEN.

Although a married woman customarily assumes her husband's surname, there is no statute requiring her to do so. In re Miller, 218 Va. 939 , 243 S.E.2d 464 (1978).

Married woman not prohibited from resuming maiden name. - There is no conflict or inconsistency between this section and former § 20-107 . Nothing in the wording of this section purports to exclude from its provisions a married woman who desires to change her name back to her maiden name. Nothing in the wording of former § 20-107 indicates that this is intended to be the exclusive statutory authority for such a change of name. There is no statute that prohibits a married woman from resuming her maiden name. In re Strikwerda, 216 Va. 470 , 220 S.E.2d 245 (1975).

This section did not change the common-law principles to be considered in petitions filed by married women seeking to resume their maiden names. In re Miller, 218 Va. 939 , 243 S.E.2d 464 (1978).

When a married woman resumes her maiden name, the possibility of damage to a creditor to whom she and her husband are jointly obligated is no greater than when a single woman marries and takes the surname of her husband, or when a divorced woman or a widow remarries and takes the surname of the husband. This inevitable confusion is not sufficient reason for denying an application for a change of name not sought for a fraudulent purpose. In re Miller, 218 Va. 939 , 243 S.E.2d 464 (1978).

A change in the name would not have a disruptive effect on family life. To reason that a name change of the mother would have an embarrassing effect on her children is pure speculation. In re Miller, 218 Va. 939 , 243 S.E.2d 464 (1978).

CIRCUIT COURT OPINIONS

"Good cause." - "Good cause" under § 8.01-217 in the context of prisoner petitions to accommodate gender dysphoria rests within the discretion of the court. In re Champion, 72 Va. Cir. 588, 2004 Va. Cir. LEXIS 385 (Lee County 2004).

Change not sought for a fraudulent purpose. - 31-year old inmate was entitled to change his name because the requested change of name, including inmate's last name, was not sought for a fraudulent purpose, and would not otherwise infringe upon the rights of others inasmuch as the inmate had identified as female since the age of five, was diagnosed with Gender Identity Disorder, received hormone treatments both before and after his incarceration, continued in the transition path through the Medical College of Virginia, and his request to change his last name was based upon a wish to take the last name of a significant other with whom he had been in a committed relationship prior to incarceration. In re Elliott, 100 Va. Cir. 288, 2018 Va. Cir. LEXIS 613 (Chesapeake Nov. 7, 2018).

Name change denied inmate with sex offense convictions. - Inmate's request for a name change pursuant to § 8.01-217 was denied, as the inmate's criminal record contained several convictions for sex offenses that required registration with law-enforcement agencies, and it appeared that granting the requested name change would serve only to frustrate the purpose of the registration requirements. In re Champion, 72 Va. Cir. 588, 2004 Va. Cir. LEXIS 385 (Lee County 2004).

Name change of child granted. - Mother's petition for the name change of her minor child to the mother's married name hyphenated and then the father's last name was granted as it was in the child's best interests because the mother did not seek to exclude the father's name, but rather her own maiden name, from the child's last name to the inclusion of the stepfather's name, the mother's married name; the child appeared to be suffering substantial detriment by bearing the mother's maiden name; while the child was only seven, she obsessed about the difference in her last name from that of her siblings and desired to match the other members of her family; and the child's conduct expressed a clear interest in maintaining the father's name alongside the mother's married name. In re A.V.T-A, 100 Va. Cir. 408, 2018 Va. Cir. LEXIS 698 (Fairfax County Dec. 27, 2018).

Name change of child denied. - Father failed to persuade the court that a name change based solely on societal tradition was in the child's best interests since the child had its mother's last name, lived with the mother, and had limited visitation with the father. In re Byrd, 56 Va. Cir. 540, 2001 Va. Cir. LEXIS 499 (Suffolk 2001).

Article 21. Miscellaneous Provisions.

§ 8.01-218. Replevin abolished.

No action of replevin shall be hereafter brought.

(Code 1950, § 8-647; 1977, c. 617.)

Cross references. - For the statutory provisions relating to detinue, see §§ 8.01-114 through 8.01-123 .

Michie's Jurisprudence. - For related discussion, see 6A M.J. Detinue and Replevin, §§ 1, 20.

§ 8.01-219. Effect of judgment in trover.

A judgment for the plaintiff in an action of trover shall not operate to transfer the title to the property converted unless and until such judgment has been satisfied.

(Code 1950, § 8-648; 1977, c. 617.)

Cross references. - For rules of court governing practice and procedure in civil actions, see Rules 3:1 through 3:25.

Law review. - For article on the abolition of the forms of action in Virginia, see 17 U. Rich. L. Rev. 273 (1983).

§ 8.01-219.1. Responsibility of possessor of real property for harm to trespasser.

A possessor of real property, including an owner, lessee, or other lawful occupant, owes no duty of care to a trespasser except in those circumstances where a common-law right of action, statutory right of action, or judicial exception existed as of July 1, 2013.
This section does not affect any immunities from or defenses to liability established by another section of the Code or available at common law to which a possessor of real property may be entitled.
(2013, c. 217.)

Editor's note. - At the direction of the Virginia Code Commission, "common-law" was substituted for "common law" in subsection A.

§ 8.01-220. Action for alienation of affection, breach of promise, criminal conversation and seduction abolished.

Notwithstanding any other provision of law to the contrary, no civil action shall lie or be maintained in this Commonwealth for alienation of affection, breach of promise to marry, or criminal conversation upon which a cause of action arose or occurred on or after June 28, 1968.
No civil action for seduction shall lie or be maintained where the cause of action arose or accrued on or after July 1, 1974. (Code 1950, § 20-37.2 ; 1968, c. 716; 1974, c. 606; 1977, c. 617.)

REVISERS' NOTE.

Former § 8-649 (Seduction) has been deleted. See § 8.01-220 B.

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Michie's Jurisprudence. - For related discussion, see 3A M.J. Breach of Promise of Marriage, § 1; 8A M.J. Executors and Administrators, § 99; 9B M.J. Husband and Wife, § 101; 12A M.J. Limitation of Actions, § 35; 16 M.J. Seduction, § 2.

CASE NOTES

Action for alienation of affection of son brought by father. - For case assuming, for purposes of the case, that an action for alienation of the affection of a son brought by a father has been abrogated by the statute, or never existed in the first place, see Raftery v. Scott, 756 F.2d 335 (4th Cir. 1985).

As to distinctions between intentional infliction of emotional distress and alienation of affection, see Raftery v. Scott, 756 F.2d 335 (4th Cir. 1985).

Detinue actions not barred. - Heart balm statute does not bar an action in detinue for recovery of an engagement ring following the breakoff of the engagement; the statute bars three specific civil actions: alienation of affection, breach of promise to marry, and criminal conversation, but the statute says nothing about the law of conditional gifts, and an action for recovery of property exchanged in contemplation of marriage is still determined by existing law and common-law principle. McGrath v. Dockendorf, 292 Va. 834 , 793 S.E.2d 336, 2016 Va. LEXIS 187 (2016).

Appellee gave appellant a gift of a ring, which was a conditional gift, and when the condition upon which the gift was made did not occur, appellee could institute an action in detinue to recover the ring or its value; the trial court did not err in finding that the statute did not bar the action and in ordering either a return of the ring or the entry judgment for the amount of the ring. McGrath v. Dockendorf, 292 Va. 834 , 793 S.E.2d 336, 2016 Va. LEXIS 187 (2016).

Tortious interference with parental rights. - General Assembly's statutory abolition of the cause of action for alienation of affection pursuant to § 8.01-220 did not preclude a recognition of a cause of action for tortious interference with parental rights, as they were distinct causes of action with separate elements. Wyatt v. McDermott, 283 Va. 685 , 725 S.E.2d 555, 2012 Va. LEXIS 92 (2012).

Action for breach of social worker's professional standard of care. - Because a husband alleged facts constituting breaches of a social worker's professional standard of care in addition to ones alleging alienation of affection, the malpractice claims were not barred by § 8.01-220 ; therefore, it was error to dismiss the entire case by sustaining the social worker's demurrer. Doe v. Zwelling, 270 Va. 594 , 620 S.E.2d 750, 2005 Va. LEXIS 90 (2005).

Name assigned to conduct not dispositive. - When the general assembly enacted this section, it manifested its intent to abolish common law actions seeking damages for a particular type of conduct, regardless of the name that a plaintiff assigns to that conduct. McDermott v. Reynolds, 260 Va. 98 , 530 S.E.2d 902, 2000 Va. LEXIS 90 (2000).

Emotional distress claim based on adultery barred. - Where the essential basis of the plaintiff's claim was that the defendant had an adulterous relationship with the plaintiff's wife, which he continued in an open and notorious manner after being confronted by the plaintiff, this alleged conduct was precisely the type of conduct that the general assembly intended to exclude from civil liability when it enacted this section and the fact that the plaintiff labeled his claim as intentional infliction of emotional distress and recited the elements of that tort in support of his action did not shield the action from the statutory bar. McDermott v. Reynolds, 260 Va. 98 , 530 S.E.2d 902, 2000 Va. LEXIS 90 (2000).

CIRCUIT COURT OPINIONS

Will contest based on alleged marriage promise to decedent. - Even assuming the executor made a fraudulent marriage promise to the decedent, who changed her will in his favor, this could not be a basis for undue influence, as Virginia did not allow recovery for breach of promises to marry. Pierce v. Anderson, 63 Va. Cir. 207, 2003 Va. Cir. LEXIS 203 (Fairfax County 2003).

Name assigned to conduct not dispositive. - Even though plaintiff's pleadings used language relating to conditional gifts, his action for the return of a car given to defendant based on a promise to marry was invalid in substance because lawsuits based on a breach of a promise to marry were prohibited. Holmburg v. Ferrell, 69 Va. Cir. 348, 2005 Va. Cir. LEXIS 359 (Salem 2005).

Action for return of engagement ring. - When a fiance sued his former fiancee for return of an engagement ring he gave her, or its value, his action was barred by § 8.01-220 because he sought damages incurred from a breach of a promise to marry, and actions for breach of promise to marry were abrogated by § 8.01-220 . Georgalas v. Kilgore, 73 Va. Cir. 34, 2006 Va. Cir. LEXIS 292 (Newport News 2006).

When a fiance claimed that his suit against his former fiancee for return of the engagement ring he gave her, or its value, was not barred by § 8.01-220 because he merely sought to enforce the return of a conditional gift when the condition was not met, but § 8.01-220 barred his claim because the basis for the condition of the conditional gift was void as against public policy. Georgalas v. Kilgore, 73 Va. Cir. 34, 2006 Va. Cir. LEXIS 292 (Newport News 2006).

Action for fraud failed. - Plaintiff's claims of actual and constructive fraud failed because allegations that plaintiff had conveyed a joint interest in real property to defendant based upon his promise to marry her and that she executed a deed of trust lien against the jointly owned real estate based upon defendant's representation that he was single, that he intended to marry plaintiff, that he was in love with plaintiff and that he was financially solvent, were nothing more than allegations of breach of a contract to marry, which was no longer a valid cause of action. Whalen v. Rutherford, 86 Va. Cir. 560, 2011 Va. Cir. LEXIS 277 (Nelson County Nov. 16, 2011).

This section did not bar a husband's defamation action. - Even though husband sought damages for injury done to his marriage, where he alleged that a pastor made defamatory remarks about the husband to his wife, he sufficiently alleged facts to state a cause of action for defamation per se that was not barred by § 8.01-220 . The tort of defamation was intended to protect an individual's uninterrupted entitlement to enjoyment of his reputation, and the husband had alleged an injury to his reputation. Cuthrell v. McKeller, 73 Va. Cir. 386, 2007 Va. Cir. LEXIS 205 (Norfolk June 28, 2007).

§ 8.01-220.1. Defense of interspousal immunity abolished as to certain causes of action arising on or after July 1, 1981.

The common-law defense of interspousal immunity in tort is abolished and shall not constitute a valid defense to any such cause of action arising on or after July 1, 1981.

(1981, c. 451.)

Law review. - For a re-examination of sovereign tort immunity in Virginia, see 15 U. Rich. L. Rev. 247 (1981). For an overview of Virginia Supreme Court decisions on domestic relations, see 15 U. Rich. L. Rev. 321 (1981). For a comment on the legislative abrogation of interspousal immunity in Virginia, see 15 U. Rich. L. Rev. 939 (1981).

For note, "Toward a More Balanced Treatment of the Negligent Transmission of Sexually Transmitted Diseases and Aids, see 12 Geo. Mason. L. Rev. 481 (2003).

Michie's Jurisprudence. - For related discussion, see 9B M.J. Husband and Wife, § 92.

CASE NOTES

Action brought within federal admiralty jurisdiction. - Virginia law with respect to interspousal immunity in tort held inapplicable in action brought within federal admiralty jurisdiction for wife's injuries sustained allegedly as result of husband's negligent maintenance of pleasure boat. See Byrd v. Byrd, 657 F.2d 615 (4th Cir. 1981).

Applied in Raftery v. Scott, 756 F.2d 335 (4th Cir. 1985).

§ 8.01-220.1:1. Civil immunity for officers, partners, members, managers, trustees and directors of certain tax exempt organizations.

Directors, partners, members, managers, trustees and officers of organizations exempt from income taxation under § 501(c) or § 528 of the Internal Revenue Code who serve without compensation shall be immune from civil liability for acts taken in their capacities as officers, partners, members, managers, trustees or directors of such organizations.
In any proceeding against a director, partner, member, manager, trustee or officer of an organization exempt from income taxation under § 501(c) or § 528 of the Internal Revenue Code who receives compensation, the damages assessed for acts taken in his capacity as an officer, partner, member, manager, trustee or director and arising out of a single transaction, occurrence or course of conduct shall not exceed the amount of compensation received by the officer, partner, member, manager, trustee or director during the 12 months immediately preceding the act or omission for which liability was imposed. As used herein "compensation" shall mean payment for services over and above per diem and expenses.
The liability of an officer, partner, member, manager, trustee or director shall not be limited as provided in this section if the officer, partner, member, manager, trustee or director engaged in willful misconduct or a knowing violation of the criminal law or if liability derives from the operation of a motor vehicle, or from the violation of a fiduciary obligation imposed during the period of declarant control by § 55.1-1943 .
The immunity provided by this section shall survive any termination, cancellation, or other discontinuance of the organization.
(1987, c. 637; 1988, c. 566; 2005, c. 255; 2011, cc. 693, 704.)

Editor's note. - To conform to the recodification of Title 55 by Acts 2019, c. 712, effective October 1, 2019, the following substitution was made at the direction of the Virginia Code Commission: substituted "55.1-1943" for " § 55-79.74."

The 2005 amendments. - The 2005 amendment by c. 255 inserted "partners, members, managers" in two places in subsection A, "partner, member, manager" in three places in subsection B, "partner, member, manager" in two places in subsection C, and made a minor stylistic change.

The 2011 amendments. - The 2011 amendments by cc. 693 and 704 are identical, and added subsection D.

Law review. - For 1987 survey of Virginia business and corporate law, see 21 U. Rich. L. Rev. 645 (1987).

CIRCUIT COURT OPINIONS

Willful conduct. - Church member's allegations of willful conduct by a church's deacons were sufficient to overcome their special pleas under subsection A of § 8.01-220.1:1 . Doe v. Harris,, 2001 Va. Cir. LEXIS 529 (Amherst County Apr. 11, 2001).

§ 8.01-220.1:2. Civil immunity for teachers under certain circumstances.

Any teacher employed by a local school board in the Commonwealth shall not be liable for any civil damages for any acts or omissions resulting from the supervision, care or discipline of students when such acts or omissions are within such teacher's scope of employment and are taken in good faith in the course of supervision, care or discipline of students, unless such acts or omissions were the result of gross negligence or willful misconduct.
No school employee or school volunteer shall be liable for any civil damages arising from the prompt good faith reporting of alleged acts of bullying or crimes against others to the appropriate school official in compliance with §§ 22.1-279.6 and 22.1-291.4 and specified procedures.
This section shall not be construed to limit, withdraw, or overturn any defense or immunity already existing in statutory or common law, to affect any claim occurring prior to the effective date of this law, or to prohibit any person subject to bullying or a criminal act from seeking redress under any other provision of law.
(1997, cc. 349, 879; 2005, c. 462; 2013, c. 575.)

The 2005 amendments. - The 2005 amendment by c. 462 inserted present subsection B and redesignated former subsection B as present subsection C; and added "or to prohibit any person subject to bullying or a criminal act from seeking redress under any other provision of law" to the end of subsection C.

The 2013 amendments. - The 2013 amendment by c. 575 inserted " §§ 22.1-279.6 and 22.1-291.4 and" in subsection B.

Law review. - For annual survey of Virginia law article, "Local Government Law," see 47 U. Rich. L. Rev. 257 (2012).

For Comment, "Spelling out LGBT: Enumerating Sexual Orientation in Virginia's Anti-Bullying Law," see 47 U. Rich. L. Rev. 1373 (2013).

For annual survey article, "Education Law," see 48 U. Rich. L. Rev. 103 (2013).

Michie's Jurisprudence. - For related discussion, see 16 M.J. Religious Societies, § 11; 16 M.J. Schools, §§ 11.1, 18, 22.

CASE NOTES

Not applicable to assistant principal. - High school assistant principal was not entitled to immunity under subsection A of § 8.01-220.1:2 from a student's simple negligence personal injury action, arising from a fight with another student, as the principal was not a "teacher" within that statutory provision; his occupation was not to instruct at an educational institution, but to lead at the institution. Burns v. Gagnon, 283 Va. 657 , 727 S.E.2d 634, 2012 Va. LEXIS 93 (2012).

High school assistant principal was not entitled to immunity under subsection B of § 8.01-220.1:2 from a student's simple negligence personal injury action, arising from a fight with another student, as the principal was not sued because he reported an alleged act of bullying or crime against another to the appropriate school official; rather, he failed to respond to such a report. Burns v. Gagnon, 283 Va. 657 , 727 S.E.2d 634, 2012 Va. LEXIS 93 (2012).

§ 8.01-220.1:3. Immunity for members of church, synagogue or religious body.

No member of any church, synagogue or religious body shall be liable in tort or contract for the actions of any officer, employee, leader, or other member of such church, synagogue or religious body solely because of his membership in such church, synagogue or religious body. Nothing in this section shall prevent any person from being held liable for his own actions.

(1997, c. 480.)

The number of this section, § 8.01-220.1:3 , was assigned by the Code Commission, the number in the original enactment having been § 8.01-220.1:2 .

CIRCUIT COURT OPINIONS

Willful conduct by church deacons. - Church member's allegations of willful conduct by a church's deacons were sufficient to overcome their special pleas under § 8.01-220.1:3 . Doe v. Harris,, 2001 Va. Cir. LEXIS 529 (Amherst County Apr. 11, 2001).

§ 8.01-220.1:4. Civil immunity for officers and directors of certain nonprofit organizations.

Directors and officers of any entity created to ensure the implementation in the Commonwealth of a national tobacco trust established to provide payments to tobacco growers and tobacco quota owners to ameliorate adverse economic consequences resulting from a national settlement of states' claims against tobacco manufacturers shall be immune from civil liability for acts taken in their capacities as officers or directors of such entities.
The liability of an officer or director shall not be limited as provided in this section if the officer or director was grossly negligent or engaged in willful misconduct or a knowing violation of the criminal law.
(2000, c. 1048.)

Editor's note. - Acts 2000, c. 1048, cl. 2 provides that the immunity provided to officers and directors in subsection A of § 8.01-220.1:4 of the act shall be effective for all acts taken on and after July 1, 1999.

§ 8.01-220.1:5. Defense of intra-family immunity abolished for wrongful death actions.

In any action for death by wrongful act under § 8.01-50 , the common-law defense of intra-family immunity is abolished and shall not constitute a valid defense as to any such cause of action that arises on or after July 1, 2020.

(2020, c. 906.)

§ 8.01-220.2. Spousal liability for medical care.

Each spouse shall be jointly and severally liable for all emergency medical care furnished to the other spouse by a physician licensed to practice medicine in the Commonwealth or by a hospital located in the Commonwealth, including all follow-up inpatient care provided during the initial emergency admission to any such hospital, which is furnished while the spouses are living together. For the purposes of this section, emergency medical care shall mean any care the physician or other health care professional deems necessary to preserve the patient's life or health and which, if not rendered timely, can be reasonably anticipated to adversely affect the patient's recovery or imperil his life or health.

Any lien arising out of a judgment under this section against the judgment debtor's principal residence held as tenants by the entireties shall not be enforced unless the residence is refinanced or is transferred to a new owner.

(1984, c. 482; 2009, c. 797; 2016, c. 240.)

The 2009 amendments. - The 2009 amendment by c. 797 substituted "Each" for "On and after July 1, 1984, each" at the beginning of the first sentence, deleted "attending" preceding "physician" in the second sentence and made a minor stylistic change.

The 2016 amendments. - The 2016 amendment by c. 240 added the second paragraph.

Michie's Jurisprudence. - For related discussion, see 9B M.J. Husband and Wife, §§ 21, 32, 85.

CASE NOTES

"Emergency medical care." - Extensive in-patient treatment following surgery to remove a cancerous lung mass did not constitute "emergency medical care" within the meaning of the statute where: (1) after being diagnosed with lung cancer in February, 1999, the decedent underwent chemotherapy, which was completed on April 16, 1999, and radiation, which was completed on April 28, 1999, (2) the decedent then had a CT scan on May 12, 1999, in order for his doctors to ascertain whether there was any change in the size of a right upper lobe mass and peritracheal nodes in his right lung, (3) the decedent then scheduled his May 28, 1999, lung surgery two weeks in advance, and (4) in-patient treatment followed such surgery. Sentara Va. Beach Gen. Hosp. v. Lebeau, 188 F. Supp. 2d 623, 2002 U.S. Dist. LEXIS 4069 (E.D. Va. 2002).

"Timely." - "Timely" must be understood in the context of the ordinary meaning of "emergency," that is, an unforeseen combination of circumstances or the resulting state that calls for immediate action or an urgent need for assistance or relief. In re Balthrop,, 2005 Bankr. LEXIS 2713 (Bankr. E.D. Va. Nov. 28, 2005).

Application of definition of emergency medical care. - This section only provides for spousal liability for in-patient care that is during an initial emergency admission. Hence, the statutory definition of emergency medical care is relevant only for determining whether the initial admission qualifies as an emergency admission from which in-patient care flows, and once an initial admission qualifies as emergency medical care under the statutory definition, then all of the in-patient care provided during that initial emergency admission is covered. Sentara Va. Beach Gen. Hosp. v. Lebeau, 188 F. Supp. 2d 623, 2002 U.S. Dist. LEXIS 4069 (E.D. Va. 2002).

Where a creditor filed two claims for medical care provided to Chapter 13 debtor wife, who had scheduled cancer surgery performed on her, and objected to confirmation of debtors' plan because it failed to pay creditor as much as it would have received in a Chapter 7 liquidation, the objection was overruled on the basis that debtor wife's debt could not have been administered in a Chapter 7 case as joint debt against debtors' tenants by the entireties property under § 8.01-220.2 because the medical care performed for debtor wife was not emergency care. In re Balthrop,, 2005 Bankr. LEXIS 2713 (Bankr. E.D. Va. Nov. 28, 2005).

Responsibility for in-patient care. - Section 8.01-220.2 clearly designates the spouse's responsibility for in-patient care attendant to an emergency admission to be follow-up in-patient care provided during the initial emergency admission. Sentara Va. Beach Gen. Hosp. v. Lebeau, 188 F. Supp. 2d 623, 2002 U.S. Dist. LEXIS 4069 (E.D. Va. 2002).

Spouse not liable for non-emergency care. - Where lung cancer patient had (1) diagnostic CT scan after chemotherapy and radiation, (2) scheduled surgery two weeks later, and (3) 41-day hospital stay culminating in death, patient's spouse was not liable for hospital bills under § 8.01-220.2 . Sentara Va. Beach Gen. Hosp. v. Lebeau, 188 F. Supp. 2d 623, 2002 U.S. Dist. LEXIS 4069 (E.D. Va. 2002).

§ 8.01-221. Damages from violation of statute, remedy therefor and penalty.

Any person injured by the violation of any statute may recover from the offender such damages as he may sustain by reason of the violation, even though a penalty or forfeiture for such violation be thereby imposed, unless such penalty or forfeiture be expressly mentioned to be in lieu of such damages. And the damages so sustained together with any penalty or forfeiture imposed for the violation of the statute may be recovered in a single action when the same person is entitled to both damages and penalty; but nothing herein contained shall affect the existing statutes of limitation applicable to the foregoing causes of action respectively.

(Code 1950, § 8-652; 1954, c. 333; 1977, c. 617.)

Cross references. - As to the recovery of penalties by the Commonwealth, see § 19.2-341 .

Law review. - For survey of Virginia law on property for the year 1973-1974, see 60 Va. L. Rev. 1583 (1974).

For annual survey commentary, "The Merger of Common-Law and Equity Pleading in Virginia," see 41 U. Rich. L. Rev. 77 (2006).

Michie's Jurisprudence. - For related discussion, see 1A M.J. Actions, § 5; 12A M.J. Larceny, § 2; 13B M.J. Negligence, § 15; 14B M.J. Penalties and Forfeitures, § 12; 18 M.J. Telegraph and Telephone Companies, § 10.

CASE NOTES

I. Decisions Under Current Law.
II. Decisions Under Prior Law.

I. DECISIONS UNDER CURRENT LAW.

Section confers no new right of action. - This section merely preserves any right of action the injured person may have, and does not give him any new right of action. Ward v. Connor, 495 F. Supp. 434 (E.D. Va. 1980), rev'd on other grounds, 657 F.2d 45 (4th Cir. 1981), cert. denied, 455 U.S. 907, 102 S. Ct. 1253, 71 L. Ed. 2d 445 (1982).

This section creates no new right of action for damages for violation of some other criminal or penalty statute; no civil right of action exists unless such other statute by its terms so provides, or unless proof of the same facts that establish violation of such other statute also constitutes proof of an otherwise existing civil action for damages independent of the criminal statute. Vansant & Gusler, Inc. v. Washington, 245 Va. 356 , 429 S.E.2d 31 (1993).

This section permits damages for those injured by a violation of the Virginia Code. However, this section does not create a new right of action where none existed. Instead, it prevents a wrongdoer from avoiding civil liability based on the theory that he has paid his penalty under a penal statute. Pettengill v. United States, 867 F. Supp. 380 (E.D. Va. 1994).

Plaintiff car dealership's former owner's claim under § 8.01-221 against defendants, a car manufacturer and its financing division, failed to state a claim as § 8.01-221 did not create a separate private action for the alleged Racketeer Influenced and Corrupt Organizations Act claims' predicate acts, and while § 59.1-68.3 provided private actions for false advertising under §§ 18.2-216 and 18.2-217 , there were no allegations on the nature of such advertising, and an executive's alleged false credentials in a resume was insufficient. Field v. GMAC LLC, 660 F. Supp. 2d 679, 2008 U.S. Dist. LEXIS 110164 (E.D. Va. 2008).

Although this section does not create any new rights of action but instead preserves any existing right of action that an injured person may have against a wrongdoer who has previously been the subject of statutory penalties for his misconduct, it is consistent with the idea that the provision for a statutory penalty does not foreclose a person's right to recover damages for the same statutory violation unless the statute so provides. Morgan v. American Family Life Assurance Co., 559 F. Supp. 477 (W.D. Va. 1983).

Disclosure of confidential medical information. - In a case in which plaintiff claimed that defendants, a healthcare corporation and two of its employees, had disclosed her confidential medical information to others, the Supreme Court disagreed with plaintiff regarding the corporation's direct liability under Fairfax Hospital v. Curtis and under the doctrine of negligence per se. Adhering to its settled precedent interpreting § 8.01-221 , the Supreme Court declined plaintiff's invitation to reinterpret it as a legislative directive to transform alleged federal HIPAA violations into a state-law, negligence per se claim. Parker v. Carilion Clinic,, 2018 Va. LEXIS 211 (Nov. 1, 2018).

Applied in A & E Supply Co. v. Nationwide Mut. Fire Ins. Co., 798 F.2d 669 (4th Cir. 1986); Parker v. Carilion Clinic, 296 Va. 319 , 819 S.E.2d 809, 2018 Va. LEXIS 158 (2018).

II. DECISIONS UNDER PRIOR LAW.

Editor's note. - The cases cited below were decided under corresponding provisions of former law. The term "this section," as used below, refers to former provisions.

Purpose. - It is very evident that the purpose of this section was merely to preserve to an injured person the right to maintain his action for the injury he may have received by reason of the wrongdoing of another, and to prevent the wrongdoer from setting up the defense that he had paid the penalty of his wrongdoing under a penal statute. It cannot be supposed that in enacting this section the legislature had the remotest idea of creating any new ground for bringing an action for damages. Tyler v. Western Union Tel. Co., 54 F. 634 (W.D. Va. 1893). See also Connolly v. Western Union Tel. Co., 100 Va. 51 , 40 S.E. 618 (1902); Hortenstein v. Virginia-Carolina Ry., 102 Va. 914 , 47 S.E. 996 (1904).

Confers no new right of action. - This section merely preserves any right of action the injured person may have, and does not give him any new right of action. Tyler v. Western Union Tel. Co., 54 F. 634 (W.D. Va. 1893).

This section confers no new or enlarged right upon a party injured as a result of the violation of a statute. A party suing for an injury arising from an act of a defendant, in violation of a statute, claiming damages, and not merely the penalty prescribed in the act, must allege and prove the same facts he would have to allege and prove if the act of negligence complained of was not in violation of a statute. Hortenstein v. Virginia-Carolina Ry., 102 Va. 914 , 47 S.E. 996 (1904).

Applies to any violation of statutory duty. - This section seems, in terms, to provide for the measure of damages in any case in which there shall be an injury resulting from the violation of any statute in this State. Western Union Tel. Co. v. Reynolds Bros., 77 Va. 173 (1883).

But proximate cause must also be established. - While one who violates a statute or an ordinance may be regarded as a wrongdoer, and the act regarded as negligence, still it may or may not be the proximate cause of the injury complained of according to the facts of the particular case. The element of proximate cause must be established, and it will not necessarily be presumed from the fact that an ordinance or statute has been violated. Wyatt v. C & P Tel. Co., 158 Va. 470 , 163 S.E. 370 (1932).

Common-law duty of landlords not enlarged. - In an action against landlords to recover for injuries sustained by a tenant's invitee when some steps at the entrance of defendants' building tilted over and caused him to fall, where it was contended that the steps were being maintained in violation of local ordinances, it was held that neither the ordinances nor this section enlarged the common-law duty of the landlords to their tenant or the tenant's invitee. Oliver v. Cashin, 192 Va. 540 , 65 S.E.2d 571 (1951).

CIRCUIT COURT OPINIONS

Section does not create cause of action. - Demurrer filed by a counselor and his employer as to the count of patient's complaint alleging taking indecent liberties with a minor while the accused is in a supervisory relationship was sustained because the factual allegations could be properly included in a claim for sexual assault and battery, but they did not generate a separate civil claim for a violation of subsection A of § 18.2-370.1 ; § 8.01-221 does not create, or recognize, that a cause of action exists for a violation of the indecent liberties statute in the criminal code, subsection A of § 18.2-370.1 . B.E.L. v. Price, 81 Va. Cir. 391, 2010 Va. Cir. LEXIS 138 (Culpeper Dec. 2, 2010).

It cannot be supposed that, in enacting the statute, the legislature had the remotest idea of creating any new ground for bringing an action for damages, and as there is no common-law action for damages by an agent for refusal to accept a power of attorney, the statute does not create one; the statute does, however, provide a remedy whereby the court can mandate the acceptance of the power of attorney. Lance v. Wells Fargo Bank, N.A., 99 Va. Cir. 115, 2018 Va. Cir. LEXIS 20 (Chesapeake Feb. 21, 2018).

§ 8.01-221.1. Unestablished business damages; lost profits.

Damages for lost profits of a new or unestablished business may be recoverable upon proper proof. A party shall not be deemed to have failed to prove lost profits because the new or unestablished business has no history of profits. Such damages for a new or unestablished business shall not be recoverable in wrongful death or personal injury actions other than actions for defamation.

(2002, c. 624.)

CIRCUIT COURT OPINIONS

New businesses. - Two business tenants were not precluded from suing their former landlord for lost profits merely because their business was unestablished and new, as long as they provided proper proof, pursuant to this section. Sukens v. Wilkes, 64 Va. Cir. 220, 2004 Va. Cir. LEXIS 200 (Richmond 2004).

Loss of economic opportunity not an independent cause of action. - Joint venturer's alleged loss of economic opportunity was not an independent cause of action, but a remedy. Loss of economic opportunity may have been a measure of consequential damages, but was not a separate and distinct claim. Taveira v. Vieira,, 2015 Va. Cir. LEXIS 90 (Virginia Beach May 29, 2015).

§ 8.01-221.2. Rescission; undue influence; attorney fees.

In any civil action to rescind a deed, contract, or other instrument, the court may award to the plaintiff reasonable attorney fees and costs associated with bringing such action where the court finds, by clear and convincing evidence, that the deed, contract, or other instrument was obtained by fraud or undue influence on the part of the defendant.

(2014, c. 164.)

§ 8.01-222.

Repealed by Acts 2007, c. 368, cl. 2.

§ 8.01-223. Lack of privity no defense in certain cases.

In cases not provided for in § 8.2-318 where recovery of damages for injury to person, including death, or to property resulting from negligence is sought, lack of privity between the parties shall be no defense.

(Code 1950, § 8-654.4; 1966, c. 439; 1977, c. 617.)

Law review. - For note discussing Virginia's disavowal of privity of contract in commercial transactions as a basis for extended liability, see 14 Wm. & Mary L. Rev. 409 (1972).

For article, "The Collision of Tort and Contract in the Construction Industry," see 21 U. Rich. L. Rev. 457 (1987). For survey on construction law in Virginia for 1989, see 23 U. Rich. L. Rev. 541 (1989).

For annual survey commentary, "Accrual of Causes of Action in Virginia," see 41 U. Rich. L. Rev. 15 (2006).

For casenote and comment, "The Fourth Circuit Sinks Admiral Dur's Boat and Virginia's Economic Loss Rule Insulates a Negligent Subcontractor from Tort Liability," see 16 Geo. Mason L. Rev. 747 (2009).

Michie's Jurisprudence. - For related discussion, see 3C M.J. Commercial Law, § 13; 4A M.J. Contracts, § 80; 5C M.J. Death by Wrongful Act, § 10; 13B M.J. Negligence, § 14; 17 M.J. Statutes, § 70.

CASE NOTES

The legislature intended that this section apply only from the date of its enactment. Farish v. Courion Indus., Inc., 722 F.2d 74 (4th Cir. 1983), aff'd on reh'g en banc, 754 F.2d 1111 (4th Cir. 1988).

The legislature intended this section and § 8.2-318 to apply prospectively only from the dates of their enactments. Farish v. Courion Indus., Inc., 754 F.2d 1111 (4th Cir. 1985).

This section is a companion statute to § 8.2-318 . Bryant Elec. Co. v. City of Fredericksburg, 762 F.2d 1192 (4th Cir. 1985).

This section is in derogation of the common-law privity requirement. - Under Virginia's rules of statutory construction, it is not to be extended beyond its express terms. Farish v. Courion Indus., Inc., 722 F.2d 74 (4th Cir. 1983), aff'd on reh'g en banc, 754 F.2d 1111 (4th Cir. 1985); Bryant Elec. Co. v. City of Fredericksburg, 762 F.2d 1192 (4th Cir. 1985), aff'd on reh'g en banc, 754 F.2d 1111 (4th Cir. 1988).

Privity not abolished where only economic loss suffered. - This section does not appear to abolish the common-law requirement of privity for negligence suits in which the plaintiff has suffered only economic loss. Bryant Elec. Co. v. City of Fredericksburg, 762 F.2d 1192 (4th Cir. 1985).

This section does not eliminate the privity requirement in a negligence action for economic loss alone. Blake Constr. Co. v. Alley, 233 Va. 31 , 353 S.E.2d 724 (1987).

Where there is no duty alleged between plaintiff and defendants, and because seemingly the loss or damage is purely economic where no privity exists, there is no cause of action for negligence. John C. Holland Enters., Inc. v. J.P. Mascaro & Sons, 653 F. Supp. 1242 (E.D. Va.), aff'd, 829 F.2d 1120 (4th Cir. 1987).

This section does not eliminate the privity requirement in a negligence action for economic loss alone because it is in derogation of the common law and is not to be enlarged beyond its express terms. Beard Plumbing & Heating v. Thompson Plastics, 152 F.3d 313 (4th Cir. 1998).

Lack of privity held bar to recovery. - Virginia law does not permit recovery by a home purchaser against the pool installer and the architect for damages to an indoor swimming pool and the foundation of a house caused by a leaking pool, where the pool installer and the architect were not in privity of contract with the home purchaser; the damages were injuries to property and not economic losses, and even if the indoor swimming pool and its separate room enclosure were built against the house but outside its foundation, that fact would not affect the result. Sensenbrenner v. Rust, Orling & Neale, Architects, Inc., 236 Va. 419 , 374 S.E.2d 55 (1988).

Where the stockholder's reliance upon alleged substandard professional services rendered by accounting firm induced him to make the warranties and to execute the escrow indemnity covenant that became the foundation of his liability to corporation, and his liability was measured by the diminution in the value of the whole stock package, i.e., the difference between the sale price of his stock fixed in reliance upon the bargained-for services and the value determined by a correct accounting formula, in effect, stockholder alleged nothing more than disappointed economic expectations, and his loss, then, was a purely economic loss. Therefore, because stockholder lacking privity of contract with accounting firm and sought to recover damages for economic loss under negligence principles, the trial court did not err in granting the accounting firm's demurrer to the original motion for judgment. Ward v. Ernst & Young, 246 Va. 317 , 435 S.E.2d 628 (1993).

Plaintiff's breach of warranty claim against defendant rip-saw manufacturer was dismissed due to lack of privity between plaintiff's decedent and defendant because plaintiff could not show the product was manufactured or sold before Virginia's first anti-privity statute was enacted in 1962, and unlike for negligence claims, the inherently dangerous product exception to the privity requirement does not apply to warranty claims. Powell v. Diehl Woodworking Mach., Inc., 198 F. Supp. 3d 628, 2016 U.S. Dist. LEXIS 103434 (E.D. Va. 2016).

Damages sought in addition to economic loss. - Pursuant to § 8.01-223 , the economic loss rule did not bar the negligence claims asserted by insurers against a contractor, its subcontractor, and related parties for damages caused by a roof that collapsed because, although the various parties defendant were not in privity with the insured tenants, the subrogated cause of action by the insurers sought damages for both the "injury" to property that was not the subject of contractual obligation between the parties, e.g., inventory and display fixtures, as well as economic loss resulting from the alleged negligence of one or more of the defendants. Factory Mut. Ins. Co. v. DLR Contr., Inc.,, 2005 U.S. Dist. LEXIS 25876 (E.D. Va. Oct. 20, 2005).

Neither this section nor § 8.2-318 alters the rule demanding privity of contract in warranty actions against architects. Gravely v. Providence Partnership, 549 F.2d 958 (4th Cir. 1977) (decided under prior law).

Not applicable to boat owner's negligence action. - Damage to a boat owner's boat caused by an electrical fire fell within the scope of the contract between the owner's general contractor and a subcontractor, thus, amounting to nothing more than economic loss for which the owner's sole remedy against the subcontractor was contract law, and § 8.01-223 did not apply to the owner's negligence action against the subcontractor because the record was absent of any evidence that the owner's boat suffered damage beyond the scope of the contract. Dur v. W. Branch Diesel, 240 Fed. Appx. 568, 2007 U.S. App. LEXIS 16237 (4th Cir. July 9, 2007).

Applied in Hayward v. Holiday Inns, Inc., 459 F. Supp. 634 (E.D. Va. 1978); Obenshain v. Halliday, 504 F. Supp. 946 (E.D. Va. 1980); Copenhaver v. Rogers, 238 Va. 361 , 384 S.E.2d 593 (1989); Redman v. John D. Brush & Co., 111 F.3d 1174 (W.D. Va. 1997); Doe v. Irvine Scientific Sales Co., 7 F. Supp. 2d 737 (E.D. Va. 1998).

CIRCUIT COURT OPINIONS

Bar to recovery. - A products liability claim is not beyond the scope of the economic loss rule, and a products liability claim must state a cause of action arising out of injury to person or property. MacConkey v. F.J. Matter Design, Inc., 54 Va. Cir. 1, 2000 Va. Cir. LEXIS 390 (Virginia Beach 2000).

Where a subcontractor claimed that a tile remover was negligent in repairing a tile floor at a mall under the tile remover's contract with the contractor, but the subcontractor did not seek recovery for damages to its alleged property, and instead, sought indemnification or contribution for any economic losses it would suffer if it was found liable to the contractor on the contractor's separate claims, recovery for such purely economic losses was not available to the subcontractor since it had no privity of contract with the tile remover. Metro Panel Sys. v. Sordoni Skanska Constr. Co., 56 Va. Cir. 399, 2001 Va. Cir. LEXIS 478 (Norfolk 2001).

Priority of contract required for economic losses. - While contractor's agent who was being sued for the alleged negligent performance and supervision of work under a contract to build a house was generally liable for the agent's negligent performance of the principal's contract, this was subject to the exception of the economic loss doctrine, and therefore, the agent could only be liable in negligence for damages to persons or property; privity of contract was required for economic losses. Rice v. Berkwood Corp., 56 Va. Cir. 493, 2001 Va. Cir. LEXIS 490 (Chesterfield County 2001).

Water infiltration into condominiums, and the resulting damage to other property, caused a diminution in the value of property that created only disappointed economic expectations, and the "economic loss rule" barred recovery for negligence, as there was no privity between the condominium association and the manufacturer of the allegedly defective exterior insulation finishing system; although § 8.01-223 abrogated the common law requirement of privity, the statute was interpreted strictly to apply only in negligence cases involving injury to person or property. Bd. of Dirs. of the Lesner Pointe Condo. on the Chesapeake Bay Ass'n v. Harbour Point Bldg. Corp.,, 2002 Va. Cir. LEXIS 422 (Virginia Beach June 18, 2002).

Because the failure of a company's warning system was a breach of its contractual obligation to a county, but not to a resident, the resident did not state a cause of action in negligence under § 8.01-223 against the company because the resident's damages were purely economic; accordingly, the company's demurrer was sustained. Gianforte v. Verizon Va., Inc., 69 Va. Cir. 361, 2005 Va. Cir. LEXIS 207 (Fairfax County 2005).

No privity of contract found. - Realtor's motion for summary judgment was granted as to the buyers' negligent performance of a contract by an agent claim as the realtor was not an agent under the contract purportedly created by the covenant simply because it undertook to send out the notices, and the realtor had no common law duty toward the buyers; the economic loss doctrine and its privity requirement remained in effect, and the buyers admitted that there was no privity between them and the realtor, and also admitted that they suffered only an economic loss. Wenke v. Emerald Lake Homes, L.C., 65 Va. Cir. 85, 2004 Va. Cir. LEXIS 81 (Orange County 2004).

Economic loss doctrine did not apply as between an inspector and the third parties with whom a corporation settled because the underlying third-party losses were not alleged to be purely economic, and the source of duty rule regarding the negligence count was inapplicable with respect to the third-party claims. Allied Terminals, Inc. v. HMT, Inc., 89 Va. Cir. 206, 2014 Va. Cir. LEXIS 141 (Chesapeake Sept. 22, 2014).

§ 8.01-223.1. Use of constitutional rights.

In any civil action, the exercise by a party of any constitutional protection shall not be used against him, except that in any civil proceeding for spousal support, custody, or visitation under Title 16.1 or any civil action for divorce or separate maintenance under Title 20 filed on or after July 1, 2020, if a party or witness refuses to answer a question about conduct described in subdivision A (1) of § 20-91 or in § 18.2-365 on the ground that the testimony might be self-incriminating, the trier of fact may draw an adverse inference from such refusal.

(1985, c. 192; 2020, c. 1062.)

The 2020 amendments. - The 2020 amendment by c. 1062, added "except that in any civil proceeding for spousal support, custody, or visitation under Title 16.1 or any civil action for divorce or separate maintenance under Title 20 filed on or after July 1, 2020, if a party or witness refuses to answer a question about conduct described in subdivision A (1) of § 20-91 or in § 18.2-365 on the ground that the testimony might be self-incriminating, the trier of fact may draw an adverse inference from such refusal" at the end.

Michie's Jurisprudence. - For related discussion, see 4C M.J. Constitutional Law, § 76; 20 M.J. Witnesses, § 80.

CASE NOTES

Invoking privilege during deposition would not permit adverse evidentiary inferences. - Trial court was forbidden to draw adverse evidentiary inferences from the fact that the wife asserted her privilege against self-incrimination numerous times during her deposition in an action by the husband to terminate spousal support. Goldmann v. Goldmann, No. 1071-02-2, 2002 Va. App. LEXIS 772 (Ct. of Appeals Dec. 31, 2002).

Dismissal. - This section barred the trial court from dismissing mother's petitions because she refused to answer father's discovery requests by asserting her privilege against self-incrimination, and, under the facts of this case, superceded the "sword and shield" doctrine. Travis v. Finley, 36 Va. App. 189, 548 S.E.2d 906, 2001 Va. App. LEXIS 422 (2001).

Applied in Watts v. Watts, 40 Va. App. 685, 581 S.E.2d 224, 2003 Va. App. LEXIS 312 (2003).

CIRCUIT COURT OPINIONS

Husband's refusal to testify could not be used against him. - In a divorce proceeding, after a wife asserted the common law "sword and shield" doctrine and the sanctions under subsection B of § 8.01-401 , the court ruled that the husband's refusal to testify about his alleged adultery could not be used against him. Moreover, the court upheld the notion that § 8.01-223.1 superseded the "sword and shield" doctrine in any case wherein a party's refusal to testify was the result of the exercise of a constitutional privilege. Toth v. Toth,, 2007 Va. Cir. LEXIS 266 (Fairfax County Dec. 17, 2007).

Invoking privilege during deposition. - Although advised by counsel, the self-incrimination privilege was properly invoked by an owner in a partition action deposition; the owner's testimony on other matters did not waive the privilege. Pelliccia v. McKeithen, 59 Va. Cir. 483, 2002 Va. Cir. LEXIS 353 (Charlottesville Oct. 10, 2002).

§ 8.01-223.2. Immunity of persons for statements made at public hearing or communicated to third party.

A person shall be immune from civil liability for a violation of § 18.2-499 , a claim of tortious interference with an existing contract or a business or contractual expectancy, or a claim of defamation based solely on statements (i) regarding matters of public concern that would be protected under the First Amendment to the United States Constitution made by that person that are communicated to a third party or (ii) made at a public hearing before the governing body of any locality or other political subdivision, or the boards, commissions, agencies and authorities thereof, and other governing bodies of any local governmental entity concerning matters properly before such body. The immunity provided by this section shall not apply to any statements made with actual or constructive knowledge that they are false or with reckless disregard for whether they are false.
Any person who has a suit against him dismissed or a witness subpoena or subpoena duces tecum quashed pursuant to the immunity provided by this section may be awarded reasonable attorney fees and costs.
(2007, c. 798; 2016, c. 239; 2017, cc. 586, 597; 2020, c. 824.)

The 2016 amendments. - The 2016 amendment by c. 239 added the second paragraph.

The 2017 amendments. - The 2017 amendments by cc. 586 and 597 are identical, and added the subsection designations; in subsection A, in the first sentence, inserted the clause (i) and (ii) designations, inserted "or a claim of defamation," substituted "regarding matters of public concern that would be protected under the First Amendment to the United States Constitution made by that person that are communicated to a third party or (ii) made" for "made by that person" and in the second sentence, inserted "actual or constructive" and made minor stylistic changes.

The 2020 amendments. - The 2020 amendment by c. 824 inserted "or a witness subpoena or subpoena duces tecum quashed" in subsection B.

Law review. - For 2007 annual survey article, "Civil Practice and Procedure," see 42 U. Rich. L. Rev. 229 (2007).

CASE NOTES

No affirmative defense found. - Section 8.01-223.2 could not have served as an affirmative defense because the undisputed conduct of defendants, a union, and others, involved far more than statements made solely at a public hearing, and defendants admitted that much of the conduct in relation to the lobbying of governmental bodies occurred outside of the confines of public hearings. Smithfield Foods, Inc. v. United Food & Commer. Workers Int'l Union, 593 F. Supp. 2d 840, 2008 U.S. Dist. LEXIS 81687 (E.D. Va. 2008).

Defamation. - Dismissal of attorney's defamation per se claim against a TV news outlet was proper as the outlet's report was protected by Virginia's fair report privilege since the attribution of a magistrate's statements in the attorney's wife's welfare fraud case were substantially correct and did not reasonably imply the attorney's involvement in his wife's crime. Agbapuruonwu v. NBC Subsidiary (WRC-TV), LLC, 821 Fed. Appx. 234, 2020 U.S. App. LEXIS 26163 (4th Cir. Aug. 2020), cert. denied, 2021 U.S. LEXIS 840 (U.S. 2021).

In accordance with the plain meaning of the word "may," the appellate court found that the statute was permissive, authorizing the court to award fees in its discretion; as such, the court properly exercised its discretion in denying the news organization's motion for fees. Fairfax v. CBS Corp.,, 2021 U.S. App. LEXIS 18738 (4th Cir. June 23, 2021).

CIRCUIT COURT OPINIONS

Statute of limitations. - Defendant's defamation action was untimely because the plaintiff's statements in publications arose from statements made in separate publications, on separate dates, and by different people, and the plaintiff could not have anticipated, at the time of filing his complaint, a need to defend against statements made to other publications Depp v. Heard,, 2021 Va. Cir. LEXIS 1 (Fairfax County Jan. 4, 2021).

Effect and operation. - This section, as revised, creates a right of recovery of attorney fees in a defamation case that did not exist prior to the revision. Thus, the change is substantive and, therefore, not retroactive. Will Nesbitt Realty, LLC v. Jones,, 2018 Va. Cir. LEXIS 66 (Fairfax County Apr. 30, 2018).

Version of this section that went into effect in 2017 does provide for recovery of attorney fees by a defendant who obtains dismissal of claims of defamation pursuant to the statute. Will Nesbitt Realty, LLC v. Jones,, 2018 Va. Cir. LEXIS 66 (Fairfax County Apr. 30, 2018).

Defamation. - Version of § 8.01-230 in effect on December 3, 2015 neither covered claims of defamation nor provided for recovery of attorney fees. Thus, the statute in effect at the time plaintiff's defamation cause of action accrued was not applicable to the instant case. Will Nesbitt Realty, LLC v. Jones,, 2018 Va. Cir. LEXIS 66 (Fairfax County Apr. 30, 2018).

Defendant's counterclaim for a declaratory judgment was dismissed because even if the court held in her favor that her statements were protected expressions of opinion that entitled her to attorney fees under the Anti-SLAPP statute, she would receive the relief at the same time as receiving the same relief under her anti-SLAPP defense. Depp v. Heard,, 2021 Va. Cir. LEXIS 1 (Fairfax County Jan. 4, 2021).

Plaintiff was not entitled to Anti-SLAPP immunity because his statements were not matters on public concern, and the defendant sufficiently alleged that the plaintiff may have made the statements with actual or constructive knowledge or with reckless disregard for whether they were false. Depp v. Heard,, 2021 Va. Cir. LEXIS 1 (Fairfax County Jan. 4, 2021).

§ 8.01-224. Defense of governmental immunity not available to certain persons in actions for damages from blasting, etc.

The defense of governmental immunity shall not be available to any person, firm or corporation in any cause of action for damages to the property of others proximately or directly resulting from blasting or the use of explosives in the performance of work for or on behalf of any governmental agency.

(Code 1950, § 8-654.5; 1970, c. 642; 1977, c. 617.)

Law review. - For survey of recent legislation on torts - blasting and governmental immunity, see 5 U. Rich. L. Rev. 201 (1970).

For note on the abrogation of sovereign immunity in Virginia: The Virginia Tort Claims Act, see 7 G.M.U. L. Rev. 291 (1984).

Michie's Jurisprudence. - For related discussion, see 8A M.J. Explosions and Explosives, § 7; 17 M.J. State, § 26.

Applied in Laughon & Johnson, Inc. v. Burch, 222 Va. 200 , 278 S.E.2d 856 (1981).

§ 8.01-225. (Effective until January 1, 2022) Persons rendering emergency care, obstetrical services exempt from liability.

Cross references. - As to the Attorney General's duty to provide all legal service in civil matters for the Commonwealth and its entities, see § 2.2-507 .

Section set out three times. - The section set out above is effective until January 1, 2022. For the version of this section effective from January 1, 2022, until July 1, 2022, see the second version and for the version of this section effective July 1, 2022, see the third version of this section, also numbered § 8.01-225 .

Editor's note. - This section was enacted, and a substantially identical section, § 54-276.9, was repealed, by Acts 1979, c. 713, effective Oct. 1, 1979, a companion act to Acts 1979, c. 711, which rewrote Title 32 as Title 32.1. Acts 1979, c. 729, amended former § 54-276.9 by adding a new subsection (a1). The Code Commission codified subsection (a1), added to § 54-276.9 by Acts 1979, c. 729, as a subsection in this § 8.01-225 as set out above. See § 30-152.

Acts 2003, c. 18, which added subsection E, in cl. 3, as amended by Acts 2005, c. 426, cl. 2, provides: "That the provisions of this act shall expire on July 1, 2008."

Acts 2005, c. 426, which amended subsection E, in cl. 3, provides: "That the provisions of this act shall expire on July 1, 2008."

Acts 2006, c. 780, cl. 4, provides: "That all taxes and fees imposed in accordance with the provisions of any Code of Virginia section or any local charter that are repealed or otherwise amended by this act and that remain unpaid as of January 1, 2007, shall be subject to payment and collection in accordance with any administrative or judicial remedies existing prior or subsequent to this act's enactment and any bad debt associated with such taxes and fees that occurs after January 1, 2007, shall be offset against revenues collected from the Communications Sales and Use Tax."

Acts 2006, c. 780, cl. 8, provides: "That the Auditor of Public Accounts (APA) shall determine the amount of revenues received by every county, city, and town for the fiscal year commencing July 1, 2005, and ending June 30, 2006, at rates adopted on or before January 1, 2006, for each of the following taxes and fees collected by the service providers: gross receipts tax in excess of 0.5%, local consumer utility tax, video program excise tax, cable franchise fee, and 911 taxes and fees, where they are collected. Based on each locality's percentage of the total Fiscal Year 2006 receipts from these sources, the APA shall calculate each locality's percentage share of future distributions of the Telecommunications Sales and Use Tax by the Department of Taxation. Local governments and service providers shall cooperate with the APA and provide information to him as requested. Every town with a population of less than 3,500, and any other county, city, or town whose annual audited financial statement cannot be completed by October 1, 2006, shall provide to the APA by that date a statement of its receipts during Fiscal Year 2006 from such telecommunications and cable sources, verified in writing by an independent certified public accountant. Any locality that fails to furnish the information required to make this calculation in a timely manner shall not be entitled to participate in the distribution of such tax, and its percentage share shall be disregarded in calculating the distribution to other localities. The APA or his agent shall not divulge any information acquired by him in the performances of his duties under this section that may identify specific service providers. The APA shall report his findings on a tax-by-tax basis to the chairmen of the House and Senate Finance Committees and the Department of Taxation no later than December 1, 2006. Further, the APA shall collect annually from local governments and service providers the necessary data to determine changes in: (i) market area and number of customers served, (ii) types of services available, (iii) population, and (iv) possible local reimbursement. The APA shall report his findings to the Chairmen of the House and Senate Committees on Finance no later than December 1 each year."

Acts 2006, c. 780, cl. 9, provides: "That if any of the provisions of this act are declared invalid in a nonappealable court order, then the remaining provisions of this act shall be invalid and the provisions of §§ 15.2-2108 , 56-468.1, 56-484.4, 56-484.5, 56-484.6, 56-484.12, 58.1-3812 , 58.1-3813.1 , 58.1-3815 , 58.1-3816.2 , and 58.1-3818.1 through 58.1-3818.7 of the Code of Virginia and the third enactment clause of Chapter 858 of the 1972 Acts of Assembly as they were in effect immediately prior to the effective date of this act shall be given effect beginning 90 days after the nonappealable court order is issued."

Acts 2012, cc. 787 and 833, cl. 2 provides: "That the Department of Health, in conjunction with the Department of Education and the Department of Health Professionals, shall develop and implement policies for the recognition and treatment of anaphylaxis in the school setting. Such departments shall develop policies with input from, but not limited to, representatives of the following organizations and entities: local school boards, the Virginia Association of School Nurses, the Virginia Nurses Association, the Virginia Chapter of the American Academy of Pediatrics, the Medical Society of Virginia, and the Office of the Attorney General. Such departments shall identify and develop appropriate revisions to the "Virginia School Health Guidelines" related but not limited to (i) development of a plan for the issuance and implementation of oral or written orders or standing protocols; (ii) consideration of who may qualify as a prescriber for local school divisions, including local health department directors, operational medical directors, and school health directors; (iii) specification of training needs and requirements for the administration of epinephrine; (iv) appropriate liability protections; and (v) any issues requiring statutory or regulatory amendment. Such departments shall provide guidelines to the Superintendent of Public Instruction for dissemination by no later than July 1, 2012."

Acts 2013, c. 183, cl. 2 provides: "That the Board of Nursing shall promulgate regulations to implement the provisions of this act relating to medication administration training for the administration of epinephrine and glucagon."

Acts 2013, c. 267, cl. 2 provides: "That the Department of Behavioral Health and Developmental Services, in cooperation with the Department of Health, the Department of Health Professions, law-enforcement agencies, substance abuse recovery support organizations, and other stakeholders, shall conduct pilot programs on the administration of naloxone to counteract the effects of opiate overdose. The Department of Behavioral Health and Developmental Services shall evaluate, implement, and report results of such pilot programs to the General Assembly by December 1, 2014."

Acts 2017, cc. 55 and 168, cl. 3 provides: "That the Board of Pharmacy shall promulgate regulations to implement the provisions of this act to be effective within 280 days of its enactment [February 20, 2017]."

Acts 2020, c. 853, cl. 2 provides: "That the Department of Health, in conjunction with the Department of Health Professions, shall develop policies and guidelines for the recognition and treatment of anaphylaxis in restaurants. Such Departments shall develop policies with input from, but not limited to, representatives of the following organizations and entities: the Virginia Nurses Association, the Virginia Chapter of the American Academy of Pediatrics, the Medical Society of Virginia, and the Office of the Attorney General. Such Departments shall consider (i) the issuance and implementation of oral or written orders or standing protocols; (ii) who may qualify as a prescriber; (iii) specification of training needs and requirements for the administration of epinephrine; (iv) appropriate storage, maintenance, and general oversight of epinephrine; (v) appropriate liability protections; and (vi) any issues requiring statutory or regulatory amendment. Such Departments shall provide such policies and guidelines to the Commissioner of Health by no later than July 1, 2021."

Effective October 1, 2021, " § 45.2-531 , 45.2-579 , 45.2-863 or 45.2-910 " was substituted for " § 45.1-161.38, 45.1-161.101, 45.1-161.199, or 45.1-161.263" to conform to the recodification of Title 45.1 by Acts 2021, Sp. Sess. I, c. 387, at the direction of the Virginia Code Commission.

The 1999 amendments. - The 1999 amendment by c. 570, in subsection A, deleted "and" preceding "such individual" in subdivision 6 and added subdivision 9.

The 1999 amendment by c. 1000, divided former subsection A into present subsection A and subdivision A 1 by inserting the 1 designation preceding "In good faith"; inserted the 2 through 6 designations at the beginning of the former first through fifth paragraphs; deleted "Any person who" at the beginning of the present subdivisions A 2 through A 4; substituted "Is an" for "Any" in subdivision A 5, in present subdivision A 6, substituted "Has" for "Any person having," and inserted "including, but not limited to, the use of an automated external defibrillator", added present subdivision A 7, inserted the 8 designation at the beginning of the former sixth paragraph, and substituted "Is a" for "Any" preceding "volunteer"; deleted the subsection B1 designation preceding "Any licensed physician," and added the last paragraph of subsection B; redesignated former subsection B2 as present subsection C, and added the present second paragraph; redesignated former subsection C as subsection D; in subsection D, deleted the former second paragraph, which read: "Any licensed physician who directs the provision of emergency medical services, as authorized by the State Board of Health, through a communications device shall not be liable for any civil damages for any act or omission resulting from the rendering of such emergency medical services unless such act or omission was the result of such physician's gross negligence or willful misconduct," and deleted the former last paragraph which read: "Any volunteer engaging in rescue or recovery work at a mine or any mine operator voluntarily providing personnel to engage in rescue or recovery work at a mine not owned or operated by such operator, shall not be liable for civil damages for acts or omissions resulting from the rendering of such rescue or recovery work in good faith unless such act or omission was the result of gross negligence or willful misconduct."

The 2000 amendments. - The 2000 amendment by c. 928 rewrote subdivision A 7; substituted "Is an" for "Any" at the beginning of present subdivision A 9; added the fifth undesignated paragraph in present subsection B; in the second paragraph of subsection D (now the first paragraph of subsection F), deleted "or" preceding "(iii)", and added "or" and clause (iv) at the end of the paragraph.

The 2000 amendment by c. 1064 substituted "service" for "system," and substituted " § 58.1-3813.1 " for " § 58.1-3813 " in the next-to-last paragraph of subsection C.

The 2003 amendments. - The 2003 amendment by c. 18, effective March 5, 2003, added subsection E. For expiration date, see Editor's note.

The 2003 amendment by c. 978, effective April 2, 2003, deleted "Has attended and successfully completed a course in cardiopulmonary resuscitation which has been approved by the State Board of Health who" at the beginning of subdivision A 6; in subdivision A 7, substituted "Operates an" for "In compliance with § 32.1-111.14:1 registers an automated external defibrillator for use at the scene of an emergency, operates a registered" at the beginning, deleted "registered" following "operators or," deleted "which are subsequently registered" preceding "shall be immune," and substituted "an" for "a registered" following "omission in the use of;" in the last paragraph of subsection B, substituted "an" for "a registered" following "supervisor of," and substituted "owner" for "registrant;" in the second paragraph of subsection D (now the first paragraph of subsection F), deleted "in compliance with § 32.1-111.14:1 " at the end of clause (iv), substituted "owns" for "registers" at the beginning of clause (a), deleted "registered" following "operate" in clause (b), substituted "an" for "in accordance with the training required by § 32.1-111.14:1, a registered" in clause (d); and added the last paragraph of subsection D (now the last paragraph of subsection F).

The 2003 amendment by c. 1020, rewrote subdivision A 3, which formerly read: "In good faith and without compensation, administers epinephrine to an individual for whom an insect sting treatment kit has been prescribed shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment if he has reason to believe that the individual receiving the injection is suffering or is about to suffer a life-threatening anaphylactic reaction."

The section is set out in the form above at the direction of the Virginia Code Commission.

The 2005 amendments. - The 2005 amendment by c. 426 added "who, for the purposes of this section, are defined as any law-enforcement officer, firefighter, emergency medical personnel, or other public safety personnel functioning in a role identified by a federal, state, or local emergency response plan" to the end of subdivision E 4. For expiration date, see Editor's note.

The 2006 amendments. - The 2006 amendment by c. 780, effective January 1, 2007, substituted " § 58.1-1730 " for " § 58.1-3813.1 " in the fourth paragraph of subsection B; in subsection C, in the first paragraph, substituted "Any communications services provider as" for "Any provider of telecommunication service as," " § 58.1-647 " for " § 58.1-3812 " and inserted "and any provider of Voice-over Internet Proticol service," and added the second sentence in the second paragraph.

The 2008 amendments. - The 2008 amendment by c. 229, in subdivision A 1, inserted clause designations, added clause (ii), and deleted "therefrom" following "en route" in clause (iii); and in subsection F, added clause (v) and made related changes.

The 2012 amendments. - The 2012 amendments by cc. 787 and 833 are identical, and added subdivision A 10.

The 2013 amendments. - The 2013 amendment by c. 183, throughout the section, substituted "in the Commonwealth" for "in this Commonwealth"; deleted "any" preceding "governmental agency" in subdivision A 4; added subdivisions A 11 and A 12; and made minor stylistic changes. Subdivisions A 11 and A 12 were subsequently renumbered as A 12 and A 13 at the direction of the Virginia Code Commission.

The 2013 amendment by c. 267 added subdivision A 11. Subdivision A 11 was subsequently renumbered as A 14 at the direction of the Virginia Code Commission.

The 2013 amendment by c. 300, substituted "AED" for "automated external defibrillator" "AEDs" for "automated external defibrillators," and "the Commonwealth" for "this Commonwealth" throughout the section; and in subdivision A 6, inserted "(CPR)" and "(AED)" near the beginning; added subdivision A 8 and redesignated accordingly; and substituted "CPR" for "cardiopulmonary resuscitation (CPR)" in the first occurrence in the last paragraph of subsection F.

The 2013 amendments by c. 336, effective March 14, 2013, and c. 617, effective March 20, 2013, are identical, and inserted "an employee of a local governing body, or an employee of a local health department who is" in subdivision A 11.

The 2014 amendments. - The 2014 amendment by c. 468 added subdivision A 9 and redesignated the remaining subdivisions accordingly.

The 2015 amendments. - The 2015 amendment by c. 340 added the last sentence in subdivision A 1.

The 2015 amendment by c. 387 added subdivision A 13; and redesignated former subdivisions A 13 through A 15 as subdivisions A 14 through A 16.

The 2015 amendments by cc. 502 and 503 are identical, and substituted "provider who holds a valid certificate issued by the Commissioner of Health" for "technician certified by the Board of Health" in subdivision A 3; substituted "emergency medical services agency" for "rescue or emergency squad" in subdivision A 4; substituted "services provider" for "care attendant or technician" in subdivision A 5; in subsection B, substituted "an emergency medical services agency that holds a valid license as an emergency medical services agency issued by the Commissioner of Health" for "a licensed emergency medical services agency in the Commonwealth" in the first paragraph, inserted "medical" preceding "services agency" in the second paragraph, and substituted "provider" for "technician" preceding "shall" in the third paragraph; in subsection F, substituted "emergency medical services or first aid services" for "emergency medical technician service or first aid service" in the first paragraph and "'emergency medical services provider' shall include" for "an 'emergency medical care attendant or technician' shall be deemed to include" in the second paragraph; and made stylistic changes.

The 2015 amendments by cc. 725, 732 and 752, effective April 15, 2015, are identical, and rewrote subdivision A 15, which read "In good faith and without compensation, administers naloxone in an emergency to an individual who is experiencing or is about to experience a life-threatening opiate overdose shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment if such administering person is a participant in a pilot program conducted by the Department of Behavioral Health and Developmental Services on the administration of naloxone for the purpose of counteracting the effects of opiate overdose."; deleted expired subsection E and redesignated former subsection F as subsection E; and made stylistic changes.

The 2016 amendments. - The 2016 amendment by c. 144, in subdivision A 11, inserted "(i)" and "(ii) a school for students with disabilities as defined in § 22.1-319 licensed by the Board of Education, or (iii) a private school accredited pursuant to § 22.1-19 as administered by the Virginia Council for Private Education and is" in the first sentence and substituted "such employee" for "employee of a school board" and inserted "or school" preceding "employing him" in the last sentence; and in subdivision A 13, substituted "is accredited pursuant § 22.1-19 as administered" for "complies with the accreditation requirements set forth in § 22.1-19 and is accredited."

The 2017 amendments. - The 2017 amendments by c. 55, effective February 20, 2017, and c. 168, effective February 23, 2017, are identical, and in subdivision A 16, inserted "or Y" preceding "of § 54.1-3408 ."

The 2017 amendments by cc. 294 and 304 are identical, and inserted subdivisions A 12 and A 15, and renumbered the remaining subdivisions accordingly.

The 2017 amendment by c. 713 added subdivision A 19.

The 2017 amendment by c. 811, in subdivision A 11, inserted "or, in the case of a school board employee, with the insertion or reinsertion of an insulin pump or any of its parts pursuant to subsection B of § 22.1-274.01:1."

The 2018 amendments. - The 2018 amendment by c. 247 added subdivision A 16, and renumbered the remaining subdivisions accordingly.

The 2020 amendments. - The 2020 amendments by cc. 459 and 460 are identical, and added subdivision A 21, which was renumbered as subdivision A 23 at the direction of the Virginia Code Commission.

The 2020 amendment by c. 556 added subdivision A 21, which was renumbered as subdivision A 24 at the direction of the Virginia Code Commission.

The 2020 amendment by c. 853 inserted subdivision A 17 and redesignated accordingly.

The 2020 amendment by c. 924 added subdivision A 21.

The 2020 amendment by c. 1095 added subdivision A 20, which was renumbered as subdivision A 21.

The section above has been set out as directed by the Virginia Code Commission.

Law review. - For survey of Virginia law on torts for the year 1978-1979, see 66 Va. L. Rev. 375 (1980). For article, "A Duty to Rescue: Some Thoughts on Criminal Liability," see 69 Va. L. Rev. 1273 (1983).

For comment on Virginia's Birth-Related Neurological Injury Compensation Act, see 22 U. Rich. L. Rev. 431 (1988).

Michie's Jurisprudence. - For related discussion, see 13B M.J. Negligence, § 1; 14B M.J. Physicians and Surgeons, §§ 13, 15.

CASE NOTES

Common law Good Samaritan doctrine has been accepted in Virginia and therefore applies to the federal government under the Federal Tort Claims Act. Creasy v. United States, 645 F. Supp. 853 (W.D. Va. 1986).

Volunteers are normally liable for negligence. - The enactment of this section, which exempts from civil liability any person who renders emergency care or assistance in good faith without compensation, indicates that volunteers are normally liable for negligence in Virginia. Creasy v. United States, 645 F. Supp. 853 (W.D. Va. 1986).

§ 8.01-225. (Effective January 1, 2022, until July 1, 2022) Persons rendering emergency care, obstetrical services exempt from liability.

Cross references. - As to the Attorney General's duty to provide all legal service in civil matters for the Commonwealth and its entities, see § 2.2-507 .

Section set out three times. - The section set out above is effective from January 1, 2022, until July 1, 2022. For the version of this section effective until January 1, 2022, see the first version and for the version of this section effective July 1, 2022, see the third version of this section set out below, also numbered § 8.01-225 .

Acts 2003, c. 18, which added subsection E, in cl. 3, as amended by Acts 2005, c. 426, cl. 2, provides: "That the provisions of this act shall expire on July 1, 2008."

Acts 2005, c. 426, which amended subsection E, in cl. 3, provides: "That the provisions of this act shall expire on July 1, 2008."

Acts 2021, Sp. Sess. I, c. 508, cl. 2 provides: "That the Department of Education, in conjunction with the Department of Health, shall develop and implement policies for the administration of stock albuterol in public schools for inclusion in the Department of Education's "Guidelines for Managing Asthma in Virginia Schools: A Team Approach" document. Such departments shall develop policies with input from representatives of local school boards, the Virginia Association of School Nurses, the Virginia Chapter of the American Academy of Pediatrics, and such other organizations and entities as such departments deem appropriate. Such departments shall identify and develop appropriate revisions to the "Virginia School Health Guidelines" relating to, but not limited to, the specification of training needs and requirements for the administration of albuterol. Such departments shall provide guidelines to the Superintendent of Public Instruction for dissemination no later than September 30, 2021."

Acts 2021, Sp. Sess. I, c. 514, cl. 2 provides: "That the provisions of this act shall become effective on July 1, 2022."

Acts 2021, Sp. Sess. I, c. 508, cl. 3 provides: "That the provisions of the first enactment of this act shall become effective on January 1, 2022."