Nonsuits In Personal Injury Actions

Brien Roche

Nonsuits are a powerful weapon for a plaintiff. They allow a plaintiff to voluntarily dismiss. The plaintiff then has the right to re-file within six months or the additional time on the statute of limitations, if that is longer. The right only applies in state court. However it may not apply in federal court. 

Nonsuits Personal Injury-Nonsuit v. Dismissal

If a plaintiff wants to retain their right of nonsuit, you should try a dismissal without prejudice. A defendant probably will oppose that. A dismissal without prejudice that is designated as not being a nonsuit is not a nonsuit. It is simply a dismissal without prejudice. That way the plaintiff still has the right of nonsuit.

Virginia law allows you to file a second suit while the first suit is still pending. This second suit can even be filed in a different venue. To avoid using a nonsuit to dispose of the first case you can try to get the court to simply dismiss the first case without prejudice. That should be stated in the order. That is, it should be stated that the dismissal is not pursuant to the nonsuit statute. In addition you can try to consolidate the two (2) actions. That way you avoid using the nonsuit.

Also the Supreme Court has expressly upheld the right of a plaintiff to file a second action even though a case is already pending arising out of the same transaction. Moore v. Gillis, 239 Va. 239, 240 (1990); Laws v. McIlroy, 283 Va. 594, 600 (2012); Wallinger v. Kelly, 136 Va. 547, 570 (1923)

Nonsuits Personal Injury Actions-Discovery

Once a case is nonsuited, then it is dismissed. The new action is a new action. It is not just a continuation of the nonsuited case. 

In Temple v. Mary Washington Hospital, 288 Va. 134 (2014), a nonsuit was taken. In the re-filed case, the prior discovery was incorporated. However that prior discovery only applied to the discovery and not to motions, objections or rulings made in the prior action. If there is no incorporation of discovery, then a plaintiff has a right to take another deposition of the defendant. 

Where you are dealing with actions under the UCC your right of non-suit may be limited by Va Code 8.2-725(4).

Spear

In Spear v. Metropolitan Washington Airports Authority, 78 Va. Cir. 456 (2009), a case out of Loudoun County Circuit Court, the trial court there held that where the plaintiff re-files a nonsuited case for an amount different than the original amount, then the plaintiff does not get the benefit of the tolling provision. Spear is the only case holding that. There are several other trial court decisions that go the opposite way. O’Hearn v. Mawyer, 80 Va. Cir. 11 (2010)

The Supreme Court’s opinion in McKinney v. Virginia Surgical Assoc., 284 Va. 455 (2012) probably is controlling. It makes a distinction between a cause of action and a right of action. It says that if the second lawsuit arises out of the same operative facts, then the tolling provision applies. 

Call, or contact us for a free consult. Also for more info on personal injury see the Wikipedia pages. Also see the pages on this site dealing with non suits personal injury actions.