Brien Roche
The statute of limitations for wrongful death claims in Virginia is two years. Also it is two years in DC.
Virginia Code §8.01-50 creates the right to bring a wrongful death action. Under Code §8.01-50(B), a wrongful death action has to be “brought by and in the name of the personal representative of such deceased person within the time limit specified in §8.01-244”.
What happens if a person doesn’t qualify until after the two year limitation period? Doesn’t Virginia Code §8.01-229 act to add an additional year to the limitation period?
The answer unfortunately is no. The Virginia Supreme Court addressed this issue in the case of Horn v. Abernathy, 231 Va. 228, 343 S.E.2d 318 (1986). Horn involved a medical malpractice wrongful death claim. The decedent, Eileen Mays, died on August 19, 1978. Her husband Palmer Mays qualified as her personal representative and gave a notice of claim to the health care providers pursuant to the Medical Malpractice Act. Mr. Mays subsequently died on December 3, 1980. Lois Horn qualified as personal representative of Mr. Mays December 8, 1980 and for Mrs. Mays on January 20, 1981. Suit was filed on February 19, 1981. Call, or contact us for a free consult.
Horn argued that because she qualified as personal representative of Eileen Mays more than a year after the death of Mrs. Mays, that Code §8.01-229(B)(1) operated to toll the statute of limitations for one year after the date of qualification. The Supreme Court disagreed. The Court held that the limitation period in Code §8.01-244 controlled and was not modified by Code §8.01-229(B). Code §8.01-244(A) stated, ” ‘Notwithstanding the provisions of §8.01-229B, if a person entitled to bring an action for personal injury dies as a result of such injury with no such action pending before the expiration of two years next after the action shall have accrued, then an action under §8.01-50 may be commenced within the time limits specified in subsection B of this section’ “. Horn, 231 Va. at 238, 343 S.E.2d at 324 (italics in original).
As a result the two year limitation for death claims appears to be an absolute.
Wait! Doesn’t Douglas v. Chesterfield County Police, 251 Va. 363, 467 S.E.2d 474 (1996) contradict Horn. It implies that the extension period for a personal representative under Code §8.01-229(B)(6) does apply to wrongful death cases.
Again, the answer is no. Douglas involved a wrongful death and 42 USC §1983 action. The decedent, a mentally ill man, was killed by police on October 9, 1991. His wife filed suit in state court on October 8, 1993. However the suit papers were never served. Mrs. Douglas took a voluntary non-suit on September 29, 1994. Suit was filed in federal court on March 16, 1995. Mrs. Douglas subsequently qualified as personal representative of her husband’s estate on April 26, 1995. Therefore the defendants moved to dismiss the claims on the ground that the action was barred by the two year limitation period in Code §8.01-244.
Clearly, suit was filed within the two-year period. However, at the time suit was filed, Mrs. Douglas had not qualified as personal representative and was therefore not a proper party. Therefore the certified question from the Eastern District of Virginia to the Virginia Supreme Court was whether Code §8.01-229(B)(6) would operate so as to deem Mrs. Douglas’ date of qualification to be October 8, 1993.
Under Code §8.01-229(B)(6), “If there is an interval of more than two years between the death of any person in whose favor or against whom a cause of action has accrued or shall subsequently accrue and the qualification of such person’s personal representative, such personal representative shall, for the purposes of this chapter, be deemed to have qualified on the last day of such two-year period”. Thus, when “no personal representative has qualified on any estate during an interval of more than two years after the death of the decedent, the additional year allowed by §8.01-229(B)(1) for the filing of a personal action will start to run on the deemed date of qualification.
In other words the last day of the two-year period. Therefore this provides an outer time limit of three years for such filing”. Douglas, 251 Va. at 367, 467 S.E.2d at 476. Call, or contact us for a free consult.
None of this would act to cure the defect in Douglas’ initial filing. As the Court stated, “There is nothing in the language of §8.01-229(B)(6) indicating the legislative intent to eliminate the necessity of a personal representative having qualified at the time an action is filed or to relate a later qualification back to the date of the filing”. Douglas, 251 Va. at 367, 467 S.E.2d at 476-77.
Even if the Virginia Supreme Court had ruled in favor of Douglas and found that the deeming provision of Code §8.01-229(B)(6) applied to wrongful death claims, the limitation period of Code §8.01-244 would not have been affected. The sole effect of such a ruling would have been to cure the defect of Mrs. Douglas not having been a proper party at the time she filed suit on October 8, 1993. Therefore there is no conflict between Douglas and Horn.
The statute of limitations for wrongful death actions is extended only by abatement or non-suit of an action filed within the two year period. Call, or contact us for a free consult.
Survival claims are personal injury claims wherein the plaintiff has passed away. If the passing is due to the injury then the survival claim may be asserted in conjunction with the wrongful death action or may be subsumed by the wrongful death claim.
With survival claims where there has been a subsequent death unrelated to the injury then the limitations may be more than two years from the date of injury. The limitation for personal injury claims is two years from the date of injury. However if the plaintiff has passed away and no suit has been filed then suit may be filed before the expiration of the two year limitation period or one year after the personal representative qualifies. See Va. Code §8.01-229(B)(1). Sub-section (B)(6) then also becomes applicable because if the interval between the date of death and the date of qualification of the personal representative is more than two years then the personal representative is deemed to have qualified within two years of the date of death.
In other words you have an additional year beyond that to file.
In addition for more info this topic and related matters see the pages on wrongful death on this site.
Also see limitations of actions for a review of Virginia case law on this subject. In addition for more info on wrongful death claims see the pages on Wikipedia.
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