Tort Law

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The cases that follow are a summary of decisions from the Virginia Supreme Court on the topic of limitations of actions.

Statute of Limitations-[1]Accrual of Cause of Action

See Va. Code § 8.01-230, which provides that actions for damage to property accrue when injury is sustained rather than when duty is breached.

See Va. Code §§ 8.01-230 and 8.01-249 as to cause of action accruing in personal injury case on date of injury and in property damage, upon breach of duty.

See Va. Code § 8.01-249, which provides that product liability cause of action against defendant who is not health care provider accrues in actions for injury resulting from implantation of prosthetic device when fact of injury and its causal connection is first communicated to patient by physician.

2013 Kiser v. A.W. Chesterton Company, 285 Va. 12, 736 S.E.2d 910.

Cause of action for personal injury based on exposure to asbestos accrues upon first communication by a physician of a diagnosis of any of the specified diseases or some other disabling asbestos-related injury or disease.

2012—Bing v. Haywood, 283 Va. 381, 722 S.E.2d 244.
Plaintiff filed assault and battery as well as intentional infliction of emotion distress claim alleging illegal body cavity search. Court applied one-year statute of limitations under Section 8.01-243.2 for commencement of claims related to conditions of confinement. Claim time barred.

2008 Schmidt v. Household Finance Corp., 276 Va. 108, 661 S.E.2d 834.

In this fraud claim defendant asserted a limitation defense. Defendant has the burden of proving that the limitation has run, burden then shifts to plaintiff to prove that despite the exercise of due diligence, he could not have discovered the alleged fraud within the two year period required. In this case, plaintiff failed to present such proof but rather relied upon the pleadings, which were inadequate to establish due diligence. Due diligence is that measure of prudent activity as is properly to be expected and ordinarily exercised by a reasonable person under the particular circumstances. In this case, there was no tolling.]

2007 Kopalchick v. Catholic Diocese of Richmond, 274 Va. 332, 645 S.E.2d 439.

Plaintiff asserted sexual abuse by a priest when he was a minor. Constitutional amendment redefined the accrual date for such claims committed by natural persons. In this case, the claim was against the Diocese, which was not a natural person, and therefore, the constitutional amendment did not apply to the present statute. Therefore, the claim is time barred.

2006 Bethel Inv. Co. v. City of Hampton, 272 Va. 765, 636 S.E.2d 466.

In this property damage action, city raised limitation issue as to when did the cause of action arise. Trial court allowed city to present evidence on that issue that was disputed and based its granting of the motion on that disputed evidence. Plaintiff was entitled to a trial by jury on those disputed facts.

2004 Shipman v. Kruck, 267 Va. 495, 593 S.E.2d 319.

Legal malpractice claim. Court determined that contract between attorney and client was oral, therefore, three-year statute controlled. Statute began to run when attorney ceased representation of the client. Claim filed more than three years after that date is time-barred. In this case, attorney advised client to put property into trust. The trust was revocable. Attorney thereafter filed bankruptcy petition. Upon the filing of the bankruptcy petition by the attorney for the client, the client was damaged because at that point, they lost control over the trust property since it was transferred to the bankruptcy Trustee. At that point, the client suffered some damage and therefore, the cause of action arose on that date. The continuous representation rule also applies in Virginia and it applies only when a continuous or recurring course of professional services relating to a particular undertaking is shown to have taken place over a period of time. So the inquiry is when the attorney’s work on a particular undertaking ended. Payment as contemplated in the Duesterdick case is not what triggers the statute of limitations. Instead, it is the accrual of some damage.

1997 Nunnally v. Artist, 254 Va. 247, 492 S.E.2d 126.

Wrongful conception case. The cause of action accrues when injury occurs. Injury occurs at conception.

1997 St. George v. Pariser, 253 Va. 329, 484 S.E.2d 888

Malpractice action based upon misdiagnosis. Defendant pled limitation as defense but failed to prove when injury occurred as a result of misdiagnosis. Therefore plea of statute of limitations should have been denied.

1995 Lo v. Burke, 249 Va. 311, 455 S.E.2d 9.

Medical malpractice action. Defendant read CT-scan in 1988 and then new scan in 1991. First scan was misinterpreted. Subsequent scan showed cancer. Plaintiff’s physician indicated that tumor in 1988 probably was benign but still should have been diagnosed and removed at that time. Burden was on defendant to present evidence in support of limitation by showing that plaintiff had suffered positive, physical or mental hurt at that time. No evidence to support this and as such action not time barred.

1994 McHenry v. Adams, 248 Va. 238, 448 S.E.2d 390.

The plaintiff asserted claims for negligence, breach of warranty, misrepresentation, and violation of Virginia Consumer Protection Act alleging that mother had been interred in vault that was not waterproof as represented. When plaintiff visited gravesite in 1988 he could see flies coming from holes around grave. Cause of action accrues when plaintiff is injured even though injury may be slight. It is immaterial that more substantial damage may occur at a later date. Plaintiff suffered damage in 1988 because at that time he suffered emotional distress. Whether claim is governed by one or two-year limitation period, it is time barred.

1993 Mahony v. Becker, 246 Va. 209, 435 S.E.2d 139.

Plaintiffs are parents of minor child who allegedly was sexually abused by defendant. Plaintiffs assert claim for intentional infliction of emotional distress based upon assault upon their daughter. Without deciding viability of that claim, court concludes that this claim is purely derivative of daughter’s claim and as such cause of action arose when assault occurred, which is more than 2 years prior to filing of this action and therefore it is time-barred.

1993 Renner v. Stafford, 245 Va. 351, 429 S.E.2d 218

Medical malpractice action. Plaintiff alleged that doctor negligently prescribed medication, that prolonged use of this medication caused plaintiff to develop other conditions and that such conditions did not occur until January 1989, after prescription. In determining when injury was sustained in cases such as this, court must look to medical evidence. In this case, it was inappropriate to grant summary judgment since plaintiff had not been given opportunity to fully develop medical evidence supporting her theory that she sustained no injury until January 1989, and as such her claim in that instance would have been timely. Decision of trial court reversed.

1992 Starnes v. Cayouette, 244 Va. 202, 419 S.E.2d 669.

Personal injury cause of action accrues upon injury occurring, not when it is discovered. Fact that plaintiff suffers greater harm from tort at later date after initial injury does not defer accruing of cause of action.

1990 STB Marketing Corp. v. Zolfaghari, 240 Va. 140, 393 S.E.2d 394.

In fraud case, cause of action accrues when fraud discovered or by exercise of due diligence reasonably should have been discovered. In this case, plaintiff had no reason to believe that conveyances were fraudulent until deposition of judgment debtor taken. Therefore, action not time-barred.

1990 Luddeke v. Amana Refrig., 239 Va. 203, 387 S.E.2d 502.

Breach of warranty case. Breach of warranty occurs when tender of delivery is made. That is when statute of limitations begins to run. There is exception to this involving express warranty calling for future performance. In that instance, cause of action accrues when breach is or should have been discovered.

1989 Westminster Investing Corp. v. Lamps Unlimited, 237 Va. 543, 379 S.E.2d 316.

When any injury is sustained because of wrongful acts of another and law affords remedy, statute of limitations begins at once. Doubts about statute of limitations are to be resolved in favor of operation of statute. Courts are obliged to enforce statute of limitations strictly and construe exceptions narrowly.

1989 Scarpa v. Melzig, 237 Va. 509, 379 S.E.2d 307.

Cause of action accrues from date injury sustained. Injury means positive, physical or mental hurt. Statute of limitations begins to run when any injury is sustained even though substantial damage may occur much later. Plaintiff in this case sought sterilization in 1980. Procedure was improperly performed. In 1985 she became pregnant. Some damages occurred in 1980; therefore this claim is time-barred.

1988 Boone v. C Arthur Weaver Co., 235 Va. 157, 365 S.E.2d 764.

Negligence claim against accountant. Statute of limitations began to run when defendant’s work relating to transaction terminated. Contract statute of limitations applies; i.e., three years or five years.

1987 Gemco-Ware, Inc. v. Rongene Mold & Plastics, 234 Va. 54, 360 S.E.2d 342.

Three-year statute of limitations for contribution and indemnity actions. Before contribution will lie, it is essential that cause of action by person injured have existed against third-party defendant. Right of action to recover contribution arises upon discharge of common obligation and statute of limitations begins to run at that time.

1987 Hampton Rd. San. Dist. v. McDonnell, 234 Va. 235, 360 S.E.2d 841.

If wrongful act is of permanent nature and one that produces all damages that can ever result from it, then entire damages must be recovered in one action and statute of limitations begins to run from date of wrongful act. Conversely, when wrongful acts are not continuous but occur only at intervals, each occurrence inflicts new injury and gives rise to new and separate cause of action. In the latter situation, plaintiff’s right of recovery is limited by statute to damages sustained during five years immediately preceding institution of suit.

l987 Eshbaugh v. Amoco Oil Co., 234 Va. 74, 360 S.E.2d 350.

An action for fraud accrues when fraud is discovered or when by exercise of due diligence it should have been discovered. In this case, plaintiff suffered damage before he learned of alleged fraud. Statute begins to run from date of discovery.

1986 Stone v. Ethan Allen, 232 Va. 365, 350 S.E.2d 629.

Fire loss. In this pre-§ 8.01-246 products liability case, Va. Code § 8.2-725 controls and breach of warranty claims arose upon delivery of product. A right of action is remedial right to presently enforce cause of action. There can be no right of action until there is cause of action. The essential elements of cause of action, whether based on tortious act or breach of contract, are: (1) legal obligation of defendant to the plaintiff; (2) violation or breach of that duty or right; and (3) harm or damage to plaintiff as proximate consequence of violation or breach. Cause of action does not evolve unless all of these factors are present. Significantly, without injury or damage to plaintiff, no right of action accrues. Negligence claim in this particular property damage case arose at date of fire, that is, when damage occurred.

1981 Locke v. Johns-Manville Corp., 221 Va. 951, 275 S.E.2d 900.

Cause of action accrues when all elements of cause of action are present: (1) legal obligation of defendant to plaintiff, (2) violation of duty, (3) harm to plaintiff proximately caused. Cause of action does not necessarily accrue at time of wrongful act, but in this case accrued years later at date of injury. This does not mean that cause of action accrues when injury discovered or should have been discovered.

1977 Virginia Military Inst. v. King, 217 Va. 751, 232 S.E.2d 895.

Architect malpractice, while sounding in tort, is really action for breach of contract. Statute of limitations runs from time of injury regardless of difficulty in ascertaining existence of cause of action. But architect may be liable for negligent supervision; owner could reasonably expect architects to disclose defects that they observed or should have observed.

1966 Hawks v. DeHart, 206 Va. 810, 146 S.E.2d 187.

In personal injury actions statute of limitations begins to run when wrong is done.

1955 Gary Steel Corp. v. Kitchin, 197 Va. 471, 90 S.E.2d 120.

Cause of action accrues to any person when that person is first entitled to institute proceeding for enforcement of his legal rights.

1954 Richmond Redev. & Hous. Auth. v. Laburnum Constr. Co., 195 Va. 827, 80 S.E.2d 574.

Gas pipe improperly fitted. Cause of action arose when defective pipe installed.

1946 Street v. Consumers Mining Corp., 185 Va. 561, 39 S.E.2d 271.

Statute of limitations is designed to compel exercise of right of action within reasonable time.

Statute of Limitations-Personal Injury

See Va. Code § 8.01-243, which creates a one year from date of discovery statute of limitations subject to 10-year maximum for certain malpractice actions.

See Va. Code § 8.01-243 indicating two-year statute of limitations in personal injury action regardless of theory of recovery and five years for property damage.

See Va. Code § 8.01-249 providing that cause of action for injury to person from exposure to asbestos is deemed to accrue as of date diagnosis of injury or disease is first communicated by physician to injured person.

See Va. Code § 8.01-250 establishing five-year statute of limitations in certain actions for damages arising out of defective or unsafe condition of improvements to real property.

2014—Lucas v. Woody, 287 Va. 354, 756 S.E.2d 447.
Suit for personal injuries while in confinement in the city jail. One-year limitation under Section 8.01-243.2 controls regardless of whether the plaintiff is still incarcerated when the action is filed.

2011—Chalifoux v. Radiology Associates, 281 Va. 690, 708 S.E.2d 834.
When malpractice is claimed to have occurred during a continuous and substantially uninterrupted course of examination and treatment in which a particular illness or condition should have been diag- nosed in the exercise of reasonable care, the date of injury occurs when the improper course of examination and treatment for the particular malady terminates. In this case, the plaintiff was referred to a radiological group who on six occasions during a three-year period conducted radiology studies. Each study related to the same or similar symptoms. All of the radiology studies were kept in one file under the plaintiff’s name. The Trial Court in this case improperly granted the plea of the statute of limitations.

1988 Grubbs v. Rawls, 235 Va. 607, 369 S.E.2d 683.

Continuous treatment rule in medical malpractice case requires that there has to exist continuing diagnosis and treatment for same or related illness or injuries after alleged acts of malpractice. In this case, treatment was continuous.

1979 Prohm v. Anderson, 220 Va. 74, 255 S.E.2d 491.

Medical malpractice case. Plaintiff failed to give notice of claim. Suit dismissed and no amendment or appeal of order. Therefore, order of dismissal became law of case and trial court lost jurisdiction.

1979 Fenton v. Danaceau, 220 Va. 1, 255 S.E.2d 349.

Continuing treatment rule. Statute of limitations commences when treatment ends in medical malpractice case.

1979 Farley v. Goode, 219 Va. 969, 252 S.E.2d 594.

Continuous treatment rule. When malpractice is claimed to have occurred during continuous and substantially uninterrupted course of examination and treatment in which particular illness or condition should have been diagnosed in exercise of reasonable care, statute of limitations commences to run when improper course of treatment terminates.

1979 Fletcher v. Tarasidis, 219 Va. 658, 250 S.E.2d 739.

Notice requirements of Medical Malpractice Act did not apply to cause of action accruing before July 1, 1976. Emergency measure adopted by legislature was to be given retroactive effect. Judgment of trial court dismissing action for failure to file notice on claim arising before July 1, 1976, reversed, though correct when entered.

1977 Hurdle v. Prinz, 218 Va. 134, 235 S.E.2d 354.

Personal injury cause of action arose prior to age of majority being reduced to 18. Plaintiff sued more than two years after 18th birthday. Claim barred by statute of limitations.

1969 Caudill v. Wise Rambler, 210 Va. 11, 168 S.E.2d 257.

Plaintiff purchased automobile in 1964 and was injured as result of alleged defect in 1967. Plaintiff had two causes of action: property damage cause of action arose in 1964; personal injury cause of action arose in 1967. Therefore, breach of implied warranty action not barred. As to property damage claim, statute of limitations begins to run when any amount of damage is sustained.

1968 Friedman v. People’s Serv. Drug Store, 208 Va. 700, 160 S.E.2d 563.

It is object of motion for judgment and not its form that determines limitation, This was personal injury action, although framed as breach of warranty, and two-year statute of limitations applies.

1966 Hawks v. DeHart, 206 Va. 810, 146 S.E.2d 187.

In malpractice case statute of limitations begins to run when wrong is done unless there has been fraudulent concealment on part of defendant.

1957 Weaver v. Beneficial Fin. Corp., 199 Va. 196, 98 S.E.2d 687.

One-year statute of limitations applies in libel cases. New cause of action accrues upon republication and thus statute of limitations begins anew.

1954 Richmond Redev. & Hous. Auth. v. Laburnum Constr. Co., 195 Va. 827, 80 S.E.2d 574.

Implied warranty theory of recovery barred by one-year contractual provision.

Statute of Limitations-Property Damage

2001 McMillion v. Dryvit Sys., Inc., 262 Va. 463, 552 S.E.2d 364.

Claim for false advertising as to stucco on exterior home was governed by catch-all statute of limitations and was deemed to be time-barred. Plaintiff, on appeal, attempted to argue that manufacturer, with superior knowledge of inherent defects in its product and reasonably foreseeable damage resulting from those defects, has duty to disclose such information to the consuming public. That theory, however, had not been pleaded and therefore, cannot be argued on appeal. Plaintiff alleged in this case that manufacturer claimed that with this exterior stucco product, damaging water penetration is avoided and that this product allows necessary water vapor transmission which helps prevent condensation in the wall assembly. Those were not deemed to be statements of present fact and therefore, could not be basis for fraud claim.

2001 Parker-Smith v. Sto Corp., 262 Va. 432, 551 S.E.2d 615.

Party bringing action alleging either actual or constructive fraud must prove that representation was false whereas false advertising occurs when advertisement contains representation that, although deceptive or misleading, is not necessarily false or untrue. In this case, dealing with stucco siding, plaintiff alleged false advertising. In false advertising claim, misrepresentation does not have to relate to a statement of present or existing fact but can be just a promise. In this case, the false advertising claim was governed by the catch-all statute of limitations and was stricken as being time-barred. In determining whether catch-all limitation applies, court must look at nature of cause of action at issue. Cause of action here was false advertising and not fraud.

1999 Tate v. Colony House Builders, Inc., 257 Va. 78, 508 S.E.2d 597.

Plaintiffs allege constructive fraud on part of homebuilder that induced plaintiffs to buy. This claim does not involve injury to real property, therefore, statute of repose does not apply.

1992 Vines v. Branch, 244 Va. 185, 418 S.E.2d 890.

Trespass to chattel constitutes injury to property governed by five-year statute of limitations.

1987 Lavery v. Automation Mgt. Consultants, 234 Va. 145, 360 S.E.2d 336.

Suit under Va. Code § 8.01-40. Subsection B of that Code section is not statute of limitations. True statute of limitations reduces to fixed interval time between accrual of right and commencement of action. Statute of limitations is designed to compel exercise of right to sue within reasonable time, to suppress fraudulent and stale claims, to prevent surprise, to guard against lost evidence, to keep facts from becoming obscure, and to prevent witnesses from disappearing. This particular statute is cut-off statute, not statute of limitations. Claim asserted herein under Va. Code § 8.01-40 is claim for injury to property right. Under prior case law one basic test of whether cause of action involved injury to property or person was whether claim survived.

1986 Harbour Gate Owner’s Ass’n v. Berg, 232 Va. 98, 348 S.E.2d 252.

Unwritten implied warranties are governed by a three-year statute of limitation. The cause of action in property damage cases accrues when the breach of contract or duty occurs.

1986 Pigou v. Moran, 231 Va. 76, 341 S.E.2d 179.

Alleged diminution in property value due to fraud of real estate agent is not injury to property under Va. Code § 8.01-243 and therefore, one-year limitation controls. Fraud is tort where wrongful act is aimed at person.

1985 Cape Henry Towers, Inc. v. National Gypsum Co., 229 Va. 596, 331 S.E.2d 476.

Va. Code § 8.01-250 five-year limitation applies to parties who furnish construction materials incorporated into building.

1983 First Va. Bank-Colonial v. Baker, 225 Va. 72, 301 S.E.2d 8.

Discussion of distinction between cause of action and right of action. Right of action is right to presently enforce cause of action. Cause is operative facts that give rise to such right of action. In this case claim was against clerk of the court for misfeasance on part of one of his deputies for misfiling land records. Court held that on date of misfiling there was no right of action since there had been no damage as of that date. Damage did not occur until three years later, and it was on that date that statute of limitations began to run. Court again rejected distinction between direct and indirect damages in this regard as stated in Keepe.

1981 W.J. Rapp Co. v. Whitlock Equip. Corp., 222 Va. 80, 279 S.E.2d 133.

Four-year limitation applied to parties in privity in sale of equipment; three-year limitation applied to manufacturer of component who was not subject to provisions of anti-privity statute.

1979 Keepe v. Shell Oil Co., 220 Va. 587, 260 S.E.2d 722.

Five-year statute of limitations applied in this property damage claim. Prior cases place undue emphasis on distinction between direct and consequential damages.

1979 Winslow, Inc. v. Scaife, 219 Va. 997, 254 S.E.2d 58.

Breach by attorneys of escrow arrangement is breach of contract and subject to three-year rather than one-year limitation.

1977 Virginia Military Inst. v. King, 217 Va. 751, 232 S.E.2d 895.

Architectural malpractice, while sounding in tort, is actually contract action. Statute of limitations runs from time of injury regardless of difficulty in ascertaining existence of cause of action. But architect may be liable for negligent supervision; owner could reasonably expect architects to disclose defects that they observed or should have observed.

1973 McCormick v. Romans & Gunn, 214 Va. 144, 198 S.E.2d 651.

Legal malpractice. Three-year statute of limitations applicable in action for breach of oral contract. Statute of limitations begins to run when undertaking is terminated, i.e., services completed or terminated.

1969 Caudill v. Wise Rambler, 210 Va. 11, 168 S.E.2d 257.

Plaintiff purchased automobile in 1964 and injured in 1967. Property damage cause of action arose in 1964 when any amount of damage was sustained.

1961 Carva Food Corp. v. Dawley, 202 Va. 543, 118 S.E.2d 664.

Plaintiff alleged that insurance agent had failed to obtain desired coverage. Property damage occurred and claim was denied. Plaintiff sued agent. Negligence of agent was indirect cause of damage and thus, one-year statute of limitations applies.

1956 Worrie v. Boze, 198 Va. 533, 95 S.E.2d 192.

Action for wrong to property, which grows out of breach of contract but not for any personal wrong apart from property or contract is action that survives and carries five-year statute of limitations.

1956 Progressive Realty Corp. v. Meador, 197 Va. 807, 91 S.E.2d 645.

Plaintiff alleged fraud in inducement of purchase of real property. Action is one for direct damages to property which action survives. Five-year, not one-year, limitation prescribed by Va. Code § 8.24 applies.

1954 Richmond Redev. & Hous. Auth. v. Laburnum Constr. Co., 195 Va. 827, 80 S.E.2d 574.

Defective gas pipe union installed by defendant caused explosion with resultant property damage. Plaintiff alleged breach of warranty and constructive fraud. Virginia Code prescribed one-year limitation for property damage actions which did not survive. To survive, damage must be direct, and not consequential injury or loss to estate that flows from wrongful act directly affecting person only. Here, plaintiff alleged damages arising out of fraud (personal action); however, damages were indirect or consequential result of fraud; therefore, one-year limitation applied.

1946 Westover Ct. Corp. v. Eley, 185 Va. 718, 40 S.E.2d 177.

Actions that survive death of plaintiff are those for property damage or that grow out of breach of contract, but not for wrongs done to person or reputation. If action does survive, then it carries five-year statute of limitations. If it does not survive, then it carries one-year statute of limitations.

Statute of Limitations-Tolling of Statute

See Va. Code § 8.01-229(E) indicating that suit may be refiled six months after non-suit.

See Va. Code § 8.01-229(K) as to suspension of limitation during pendency of criminal cases.

See Va. Code § 8.01-243.1, which eliminates general tolling provisions applicable to actions on behalf of minors in medical malpractice cases.

See Va. Code § 8.01-249 dealing with sexual abuse of minors indicating two-year limitation period does not accrue until plaintiff is informed by physician or psychologist that plaintiff was abused and abuse caused injury.

2012—Casey v. Merck & Company, Inc., 283 Va. 411, 722 S.E.2d 842.

Virginia Law does not permit equitable tolling of state statute of limitations due to pendency of a putative class action in another jurisdiction.

2010—Conger v. Barrett, 280 Va. 627, 702 S.E.2d 117.

Wrongful death action was dismissed due to inactivity but reinstated within one year. Such action is not time barred as it does not constitute another action but is simply the reopening of an existing action.

2010—Aguilera v. Christian, 280 Va. 486, 699 S.E.2d 517.

Pro se plaintiff may not authorize other party to sign Complaint. Such a signature is invalid and the Complaint is a nullity and does not toll the statute of limitations.

2010—Shipe v. Hunter, 280 Va. 480, 699 S.E.2d 519.
Complaint signed by non-Virginia lawyer at direction of Virginia lawyer is inadequate as a matter of law since it does not bear the signature of a Virginia lawyer. The filing of such an action does not toll the statute of limitations.

2008 Ahari v. Morrison, 275 Va. 92, 654 S.E.2d 891.

Plaintiff filed suit against a county and the Commonwealth of Virginia alleging failure to maintain the roadway resulting in the decedent’s death. Plaintiff thereafter sought leave to amend by filing a motion three days before the statute of limitations ran. The motion was subsequently granted allowing the amendment to join additional defendants. Those additional defendants then raised the statute of limitations defense. The mere filing of the motion does not toll the statute of limitations. The limitation period was tolled only when those new defendants were added. As such, the claims against these new defendants were time barred.

2008 Schmidt v. Household Finance Corp., 276 Va. 108, 661 S.E.2d 834.

To establish equitable tolling plaintiff must establish that the defendant fraudulently concealed facts that are the basis of the plaintiff’s claim, plaintiff failed to discover those facts within the limitation period despite the exercise of due diligence. Plaintiff in this case failed to establish due diligence.

2006 Kone v. Wilson, 272 Va. 59, 630 S.E.2d 744.

In this case, administrator of the estate was not licensed to practice law in Virginia and therefore could not file wrongful death action, pro se. Any such filing is invalid and of no legal effect and does not toll statute of limitations.

2005 Newman v. Walker, 270 Va. 291, 618 S.E.2d 336.

Defendant misrepresented identity at scene of collision. Plaintiff thereafter filed suit against the person named at the time of the accident. Claim was not time-barred because under Va. Code § 8.01-229(D), the limitation period is tolled if a defendant uses any means to obstruct the filing of an action. In this case, the case is remanded for determination of whether defendant’s use of stolen identification was designed or intended to obstruct plaintiff’s filing of this case and if so, the period of time that such obstruction continued.

2004 Phipps v. Liddle, 267 Va. 344, 593 S.E.2d 193.

Order of non-suit was appealed to supreme court and was affirmed by this court. Plaintiff had six months from the date of that mandate entered by the trial court to refile.

2003 Simon v. Forer, 265 Va. 483, 578 S.E.2d 792.

Plaintiff initiated medical malpractice action and then non-suited and then refiled nine months after date of non-suit. The refiling results in the two-year statute of limitations not having been tolled during the pendency of the original action. Since the refiled action is out of time, the plea in bar of the statute of limitations was properly granted.

2001 Grimes v. Suzukawa, 262 Va. 330, 551 S.E.2d 644.

Plaintiff sued assailant for assault, battery, intentional infliction of emotional distress, trespass, and false imprisonment. Claim was deemed to be time-barred even though assailant was alleged to have worn mask when assault occurred thereby preventing him from being properly identified. In this instance, for statute to be tolled, plaintiff would have to show that defendant undertook an affirmative act designed or intended directly or indirectly to obstruct plaintiff’s right to file this suit. That was not established.

1997 Ward v. Insurance Co. of North America, 253 Va. 232, 482 S.E.2d 795

Plaintiff recovered judgment against other motorist on October 23, 1986, and then filed suit against insurance carrier of other motorist alleging that plaintiff was beneficiary of that policy. This latter suit was filed on October 23, 1991, non-suited on June 10, 1994, and refiled on December 12, 1994. The latter action was filed on Monday. The first action against insurance company was timely filed even though there was intervening leap year, since years under Virginia rules are defined as calendar years and not just 365-day periods. In regards to refiling of non-suited action, that too was timely filed even though technically filed more than six months after date of non-suit, since last day for refiling was Saturday.

1996 Swann v. Marks, 252 Va. 181, 476 S.E.2d 170.

On March 20, 1990, Swann injured in motor vehicle accident with Wild. Wild died on January 18, 1991, from causes unrelated to accident. Swann filed suit against estate of Wild on December 18, 1992. Personal representative did not qualify until October 5, 1994. On February 3, 1995, amendment to pleadings allowed to substitute personal representative for estate of Wild. On same date, plaintiff non-suited and then refiled. Action time barred. Statute of limitations expired two years after date of accident. If personal representative qualifies more then one year after date of death, then representative deemed to have qualified on last day of one-year period. In this instance, limitation period therefore could have been extended until January 18, 1993. Suit against estate is nullity and therefore does not toll limitation.

1996 Douglas v. Chesterfield County Police, 251 Va. 363, 467 S.E.2d 474.

Wrongful death action. Decedent in this case died on October 9, 1991. Decedent’s wife instituted action on October 8, 1993, which was subsequently non-suited and then refiled in Federal Court on March 16, 1995. Wife did not qualify as executrix until April 26, 1995. Under the terms of Va. Code § 8.01-229, this claim is time barred since outside limit for filing of such action was three years from date of death. Initial action was not timely since wife had not qualified as executrix.

1995 Harris v. DiMattina, 250 Va. 306, 462 S.E.2d 338.

Two consolidated medical malpractice actions wherein one involved notice of claim filed after statutory change and other involved notice of claim filed before statutory change. The action involving notice of claim filed after statutory change was time barred because notice of claim not required at that point and plaintiff could have simply filed suit. Action involving notice of claim filed before statutory change was not time barred because plaintiff at that point was simply following established statutory scheme. The notice of claim provisions and tolling provisions were procedural in nature and could be changed at the will of the legislature as long as reasonable opportunity and time were provided to preserve substantive or vested rights. Since they were procedural, neither plaintiff acquired any vested right in these statutes.

1995 McManama v. Plunk, 250 Va. 27, 458 S.E.2d 759.

Order of non-suit is appealable only when dispute exists as to whether or not the trial court properly granted motion for non-suit. Action in this instance not time barred since accident occurred on September 5, 1988, almost two years later plaintiff filed suit, a year and two days after original filing ex parte order of nonsuit entered, and then on January 6, 1992, plaintiff filed second motion for judgment naming administrator of estate as defendant since defendant had passed away. Refiling within six months of nonsuit is timely.

1992 Vines v. Branch, 244 Va. 185, 418 S.E.2d 890.

Issue is whether amended pleading was time-barred because new cause of action asserted. To determine whether new cause of action is alleged, one must inquire whether recovery on original complaint would be bar to recovery under amended complaint. When amendment introduces new cause of action and makes new or different demands, amended action will not relate back.

1989 Justice v. Natvig, 238 Va. 178, 381 S.E.2d 8.

Medical malpractice claim. Surgery in 1977. Continuous treatment related to this procedure followed for next eight years. Plaintiff then filed suit in 1985. Continuous treatment rule applied.

1986 Horn v. Abernathy, 231 Va. 228, 343 S.E.2d 318.

Constructive fraud will not toll the statute of limitations. In this medical malpractice claim (wrongful death of wife) notice of claim was filed on August 9, 1980. Defendant’s request for panel was filed one day late. The 120-day tolling rule applied, and since claim was filed beyond that time, it was time barred.

1983 Dye v. Staley, 226 Va. 15, 307 S.E.2d 237.

Plaintiff filed notice of medical malpractice claim, and neither party requested review panel. Statute of limitations was tolled for 120 days and plaintiff thereafter had remaining 109 days on statute of limitations in which to file suit.

1983 Baker v. Zirkle, 226 Va. 7, 307 S.E.2d 234.

Medical malpractice action. Cause of action arose on June 10, 1978. Plaintiff filed notice of claim on January 29, 1980. Panel hearing was requested and panel issued its opinion on December 5, 1980. Plaintiff filed her civil action on March 20, 1981. Court held that statute of limitations was tolled from time notice of claim was filed until 60 days after panel decision and, as such, the time remaining on statute of limitations, i.e., 132 days, had not expired.

1983 Truman v. Spivey, 225 Va. 274, 302 S.E.2d 517.

Action filed against John Doe, unknown motorist, under Uninsured Motorist Act. Carrier appeared on behalf of John Doe and thereafter advised plaintiff that unknown motorist was in fact Mr. Spivey. Plaintiff amended so as to join Spivey as co-defendant after statute of limitations had expired. Carrier appeared on behalf of Spivey also since he was uninsured. Court held that statute of limitations was tolled as to Spivey upon timely filing of John Doe action.

1981 Ortiz v. Barrett, 222 Va. 118, 278 S.E.2d 833.

Dismissal for misjoinder does not toll statute of limitations.

1981 Goodstein v. Allen, 222 Va. 1, 278 S.E.2d 787.

Statute of limitations not tolled in contract case nor in tort case where both arose from same wrong.

1980 Armstrong v. Erasmo, 220 Va. 883, 263 S.E.2d 655.

Filing of notice of claim in medical malpractice case within two years after cause of action arose tolled statute.

1979 Fines v. Kendrick, 219 Va. 1094, 254 S.E.2d 108.

Plaintiff sought to toll two-year statute of limitations for personal injuries on basis that he was insane at time his cause of action arose; issue was question of fact to be decided by trial court. Presumption in favor of sanity. Burden on plaintiff to establish his insanity as defined by Va. Code § 1.13.11 [now repealed].

1966 Hawks v. DeHart, 206 Va. 810, 146 S.E.2d 187.

Constructive fraud is not enough to toll statute of limitations. Fraud must involve moral turpitude.

1965 Bergman v. Turpin, 206 Va. 539, 145 S.E.2d 135.

Automobile accident. Defendant moved out of Virginia after accident. Plaintiff could have effected service on statutory agent. Defendant’s moving out of state in this case did not toll statute of limitations.

1960 Scott v. Nance, 202 Va. 355, 117 S.E.2d 279.

Plaintiff filed suit against defendant convict in his own name. Suit dismissed since not brought against committee. At that point, statute of limitations had expired. Plaintiff reinstituted suit against committee same day. It is generally held under such circumstances that original action saves second from bar of statute of limitations if second is seasonably instituted. Statute extending time for institution of new action on failure of original action for reasons other than on merits is highly remedial and should be liberally construed.

1956 McDaniel v. Carolina Pulp Co., 198 Va. 612, 95 S.E.2d 201.

Statute extending time for institution of new action on failure of original action for reasons other than on merits is highly remedial and should be liberally construed.

1954 Richmond Redev. & Hous. Auth. v. Laburnum Constr. Co., 195 Va. 827, 80 S.E.2d 574.

Plaintiff alleged fraud which tolled statute of limitations. Constructive fraud is not such as will toll running of statute of limitations. Character of fraud necessary to toll statute must be variety involving moral turpitude.

Statute of Limitations-Miscellaneous

See Va. Code § 1.4 indicating that repeal, amendment or revision as to any statute of limitations shall not be deemed removal of any existing bar.

See Va. Code § 8.01-235. Statute of limitations must be raised as affirmative defense in responsive pleading.

See Va. Code § 8.01-243, which provides that statute of limitations in personal actions for fraud is two years.

See Va. Code § 8.01-255 as to limitation period for actions against Commonwealth.

See Va. Code § 8.2-607 (UCC) indicating that where tender has been accepted, buyer must, within reasonable time after he discovers or should have discovered any breach, notify seller of breach or be barred from any remedy.

See Va. Code § 8.2-725 setting forth four-year statute of limitations for contracts for sale.

2011 Kocher v. Campbell, 282 Va. 113, 712 S.E.2d 477.

In this personal injury case, the plaintiff filed bankruptcy before filing civil action. Personal injury claim was not listed as an asset in the bankruptcy case. As a matter of law, the personal injury claim became an asset of the bankruptcy estate. The complaint filed was a nullity because the plaintiff had no standing to bring the complaint. Since the statute of limitations had run, the claim is time barred.

2010 Idoux v. Helou, 279 Va. 548, 691 S.E.2d 773.

Plaintiff filed suit in General District Court against defendant after the defendant had died from causes unrelated to the alleged acts of negligence. The General District Court dismissed because of the improper identity of the defendant. A year later plaintiff files in the Circuit Court and identifies the defendant as being the estate of the decedent. This suit was filed within two years of the date of accident. The personal representative was served after the statute of limitations had expired. Trial Court properly did not allow amendment under § 8.01-6.2 on the grounds that the suit against the estate was a nullity and did not toll the statute of limitations.

2007 Harmon v. Sadjadi, 273 Va. 184, 639 S.E.2d 294.

In this medical malpractice action, a foreign personal representative not qualified in Virginia filed suit in Virginia and then nonsuited. He later qualified as the personal representative in Virginia and filed suit within one year of that date. That action was timely filed. The decision in McDaniel v. North Carolina Pulp Co., 198 Va. 612, 95 S.E.2d 201 (1956), is overruled.

2007 Hughes v. Doe, 273 Va. 45, 639 S.E.2d 302.

In suit alleging that employer was liable for negligence of employee under respondeat superior theory, dismissal of claim against the employee with prejudice on procedural grounds does not amount to an affirmative finding of the employee’s lack of negligence and therefore the suit can proceed against the employer under the derivative liability principle. In this case, the employee had been dismissed on a statute of limitations defense.

2007 Parker v. Warren, 273 Va. 20, 639 S.E.2d 179.

Plaintiff sued for personal injury. Defendant later died. Eighteen months later decedent’s personal representative was substituted as the Defendant under Va. Code § 8.01-229. Plaintiff was required to substitute the decedent’s personal representative before the expiration of the limitation period or within two years after the date the suit was filed, whichever occurred first. Trial court incorrectly ruled that the applicable code section contained a scrivener’s error. Trial court improperly dismissed the suit.

1999 Hitt Contracting, Inc. v. Industrial Risk Insurers, 258 Va. 40, 516 S.E.2d 216.

Replacement coverage endorsement in this insurance policy is subject to two-year limitation in policy and required by Va. Code § 38.2-2105. Suit filed after that two-year limitation is time-barred.

1995 Carr v. The Home Ins. Co., 250 Va. 427, 463 S.E.2d 457.

Home paid for injury to its insured and then sought to recover against tortfeasor. Suit filed beyond two-year limitation. Home amended so as to allege that it was pursuing equitable indemnity claim and therefore cause of action did not arise until payment made. Equitable indemnification arises when party without personal fault is nevertheless legally liable for damages caused by negligence of another. This was simply a straight subrogation claim and not an indemnification claim and therefore Home was governed by two-year limitation.

1992 Starnes v. Cayouette, 244 Va. 202, 419 S.E.2d 669.

When bar of statute of limitations has attached, the legislature cannot remove bar by retrospective legislation. Defendant in such case has acquired substantive right that cannot be impinged upon. In this case, redefining accrual of cause of action for sexual abuse offends constitutional due process guarantee.

1988 Nelson v. Commonwealth, 235 Va. 228, 368 S.E.2d 239.

Defendant asserted statute of limitations defense thirteen days before trial; plaintiff did not request continuance; there is no prejudice sufficient to support suggestion of waiver. Defendant granted leave to amend to raise this defense.

1987 House v. Kirby, 233 Va. 197, 355 S.E.2d 303.

The limitation period for fraud is one year.

1981 Locke v. Johns-Manville Corp., 221 Va. 951, 275 S.E.2d 900.

Burden to prove facts necessary to establish statute of limitations defense is on defendant.

1981 Strickland v. Simpkins, 221 Va. 730, 273 S.E.2d 539.

Cause of action arising before October 1, 1977 not covered by Va. Code § 8.01-229(E)(1), which provides that statute of limitations tolled during pendency of suit.

1981 Wood v. Holcombe, 221 Va. 691, 273 S.E.2d 541.

Cause of action arising on or before October 1, 1977, not covered by Va. Code § 8.01-229(E)(3). See also 221 Va. 698.

1980 Boykins Corp. v. Weldon, Inc., 221 Va. 81, 266 S.E.2d 887.

Statute of limitations is absolute except in extraordinary circumstances where equitable estoppel applies. For fraud to toll statute of limitations, it must consist of affirmative acts and have effect of deterring plaintiff from action.

1977 Hurdle v. Prinz, 218 Va. 134, 235 S.E.2d 354.

Statute of limitations is procedural.

1960 Scott v. Nance, 202 Va. 355, 117 S.E.2d 279.

Amendments made after expiration of statute of limitations, changing allegations as to capacity in which defendant is sued, are proper and unless new cause of action is stated, action is not barred.

Statute of Repose

2006 Baker v. Poolservice Co., 272 Va. 677, 636 S.E.2d 360.

In this wrongful death action, the five-year statute of repose was found to have expired and was applicable to the manufacturer of a spa drain or drain cover. The Court held that those items were ordinary building material under Va. Code § 8.01-250 and therefore the claim is time barred.

2011 Royal Indemnity Company v. Tyco Fire Products, 281 Va. 157, 704 S.E.2d 91.

Exterior sidewalk sprinkler heads are equipment under the statue of repose and are not ordinary building material and as such the statute of repose does not bar the claim.

2010 Jamerson v. Coleman-Adams Construction, 280 Va. 490, 699 S.E.2d 197.

Claim is barred by statute of repose because it was filed more than five years after the date of construction. The defective material in question was a steel platform and pole which collapsed causing injury. These items were not equipment, machinery or other articles but were ordinary building materials and therefore governed by the statute of repose.

2000 Cooper Indus., Inc. v. Melendez, 260 Va. 578, 537 S.E.2d 580.

In this personal injury action, issue was whether circuit breaker is ordinary building material or equipment within meaning of Va. Code § 8.01-250. This code section makes distinction between those who furnish ordinary building materials, which are incorporated in construction work outside control of their manufacturer at direction of architect, designers, and contractors and those who furnish machinery or equipment. Trial court in this case properly concluded that these items were equipment. These items in this case were each self-contained and fully assembled by the respective manufacturers. Equipment in this case was not fungible or generic material.

1998 Luebbers v. Fort Wayne Plastics, 255 Va. 368, 498 S.E.2d 911.

Issue in this case was whether under statute of repose items used in construction of swimming pool were ordinary building materials or equipment as that term is used within Va. Code § 8.01-250. Prefabricated structural component materials installed as part of pool are ordinary building materials and are not equipment.

1990 Hess v. Snyder Hunt Corp., 240 Va. 49, 392 S.E.2d 817.

Balcony of apartment building collapsed, injuring plaintiff. Va. Code § 8.01-250 barred claim. This is statute of repose, not limitation. Statute is constitutional.

1990 Eagles Court Condo. v. Heatilator, Inc., 239 Va. 325, 389 S.E.2d 304.

Fire claim. Factual issue existed of whether items were machinery or equipment within meaning of Va. Code § 8.01-250.

1989 Commonwealth v. Owens-Corning Fiberglas, 238 Va. 595, 385 S.E.2d 865.

Va. Code § 8.01-250 is statute of repose, not limitation, and it does apply to Commonwealth. Statute of repose extinguishes cause of action. This extinction creates substantive right that is not abrogated by statute that places Commonwealth outside of statute of limitations.

1988 Grice v. Hungerford Mech. Corp., 236 Va. 305, 374 S.E.2d 17.

Children died in house fire that was allegedly caused by malfunction in electrical panel box. These are ordinary building materials under Va. Code § 8.01-250; therefore, five-year statute of limitations applies.

1987 School Bd. of Norfolk v. U.S. Gypsum, 234 Va. 32, 360 S.E.2d 325.

An ordinary statute of limitations is procedural. Statutes of limitations are to be distinguished from statutes of repose. Statute of repose is one where time limitation begins to run from occurrence of event unrelated to accrual of cause of action and expiration of time extinguishes not only legal remedy but also all causes of action including those which may later accrue as well as those already accrued. Thus, statute of repose is intended as substantive definition of rights as distinguished from procedural limitation on remedy used to enforce rights. Supreme Court has consistently held that due process clause of constitution protects not only rights that are vested but also substantive property rights which may ripen into vested rights. The rights bestowed by Va. Code § 8.01-250 upon defendants in this case are substantive, if not vested, and as such may not be impaired by retroactive application of Va. Code § 8.01-250.1.