Tort Law

Brien Roche

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Statutes-Procedural or Substantive.  

2003 Berner v. Mills, 265 Va. 408, 579 S.E.2d 159.

Defendant, professional corporation, asserted that this medical negligence claim was governed by the Virginia Birth Related Neurological Injury Compensation Act even though the physician’s professional corporation was not expressly governed by the statute. A subsequent amendment included the professional corporation within the statute and the issue is whether or not that statutory amendment is retroactive. The court concluded that it was not applying general principles of statutory construction, i.e., unless the statute expressly says that it is retroactive, then it is deemed to be prospective.

1998 Riddett v. Virginia Elec. & Power Co., 255 Va. 23, 495 S.E.2d 819.

Actions for wrongful death did not exist in common law. Limitation period for bringing wrongful death action, including tolling provision, is substantive part of such action. Remedy in this case is inextricably bound to right of recovery and therefore subsequent amendments to statute do not apply retroactively.

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.

1992 Dale v. City of Newport News, 243 Va. 48, 412 S.E.2d 701.

As general rule, there is presumption substantive change in law was intended by statutory amendment unless amendment made in response to particular controversy making it logical to regard amendment as simply legislative interpretation of original act.

1989 Rotonda Condo. Unit Owners’ Ass’n v. Rotonda Assocs., 238 Va. 85, 380 S.E.2d 876.

Statute that affects a substantive change in law may not be given retrospective effect.

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

Supreme Court has consistently held that due process clause of Virginia Constitution protects not only rights that have vested but also substantive property interests which may ripen into vested rights. Rights bestowed by Va. Code § 8.01250 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.

1987 Bartholomew v. Bartholomew, 233 Va. 86, 353 S.E.2d 752.

Both substantive and vested rights are protected from retroactive application of statutes. Accident in this case occurred in 1976. Release statute (Va. Code § 8.01-35.1) enacted in 1979 was not applicable to this accident.

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

New legislation will ordinarily not be construed to interfere with existing contracts, rights of action, suits or vested property rights. Where legislative intent to do so is clear, legislation may be applied retrospectively subject to well defined limitations.

1985 Potomac Hosp. Corp. v. Dillon, 229 Va. 355, 329 S.E.2d 41.

Both substantive and vested rights are protected from retroactive application of statutes. Virginia Code § 8.01-35.1 cannot be applied retroactively to curtail right of subrogation.

1984 Shiflet v. Eller, 228 Va. 115, 319 S.E.2d 750.

Plaintiff injured in automobile accident in 1977. Suit filed in 1979. On July 1, 1979, Va. Code § 8.01-35.1 became effective. In May 1981, plaintiff settled claim with one defendant, executing document entitled release or covenant not to sue, reserving rights against other defendant. Trial court properly sustained pleas of release filed by that codefendant and dismissed action against him with prejudice. Substantive and vested rights are protected from retroactive application of statutes. Substantive rights are included within that part of law dealing with creation of duties, rights and obligations as opposed to procedural law. Although all vested rights are substantive, not all subject matter considered to be substantive relates to vested rights. Right to contribution arises when one tortfeasor has paid or settled claim. Cause of action for contribution arises at time of negligent acts. Cause of action for contribution is substantive right which in this case arose at time of accident in 1977. Virginia Code § 8.01-35.1, by which release of one joint tortfeasor does not release other, adversely affected substantive right of contribution which arose in 1977 and as such cannot be applied retroactively.

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

Statute passed after suit dismissed. No timely appeal filed. Statute did not affect dismissal order since order had become final and trial court lost jurisdiction.

1979 Ives v. Redford, 219 Va. 838, 252 S.E.2d 315.

Statute enacted establishing statewide standard in malpractice cases after plaintiff’s cause of action arose. Plaintiff agreed statute not applicable.

1979 Noll v. Rahal, 219 Va. 795, 250 S.E.2d 741.

Medical malpractice statute allegedly mandating use of statewide standard in medical malpractice cases is not applied retroactively to any cause of action which arose prior to July 1, 1976.

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

Statute exempting causes of action arising before July 1, 1976 from written notice requirements of Medical Malpractice Act was emergency measure having retrospective effect. When vested rights are not divested, appellate court will apply statute adopted after date of judgment, even though that statute changes law in effect on that date and requires reversal of judgment correct when entered. Litigant successful in trial court acquires no vested rights upon entry of judgment. Right is inchoate and does not become vested unless judgment has been affirmed on appeal or time allowed for appeal has expired. Nor do litigants hold vested rights in procedural statutes.

1978 Goodstein v. Weinberg, 219 Va. 105, 245 S.E.2d 140.

Virginia Code § 8.01-272, now permits joinder of actions in tort and contract where those claims arise out of same transaction or occurrence statute became effective on October 1, 1977 since application of statute at this time might materially change substantive rights of party, as distinguished from procedural aspects of remedy, Va. Code § 8.01-272 not retroactive.

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

New statutes are usually presumed to operate prospectively.

1974 O’Brien v. Snow, 215 Va. 403, 210 S.E.2d 165.

Statute passed after case filed but before final judgment is applicable to this case.

1973 Fountain v. Fountain, 214 Va. 347, 200 S.E.2d 513.

Decision abolishing old common-law rule is normally given retroactive effect. However, rule abrogating interspousal immunity shall be given prospective effect only.

1968 Stroobants v. Fugate, 209 Va. 275, 163 S.E.2d 192.

After cause of action arose, General Assembly amended Code to supply another remedy to enforce existing rights. Remedial statute that disturbs no vested rights and creates no obligations should be applied retroactively.

1968 Walke v. Dallas, Inc., 209 Va. 32, 161 S.E.2d 722.

Statutes relating to remedies and procedure are generally given retroactive construction. This is not intended to overrule generally accepted rule that statute of limitations or remedial statutes are not retrospective in absence of clear legislative intent.

1966 Hall v. Hockaday, 206 Va. 792, 146 S.E.2d 215.

Motor vehicles on highways are required to comply with statutes in effect on date of operation and not with statutes in effect on date of manufacture.

1965 Ocean View Imp. Corp. v. Norfolk & W. Ry., 205 Va. 949, 140 S.E.2d 700.

Statutes shall be construed when possible to avoid unconstitutionality.

1964 State Farm Mut. v. Brewer, 204 Va. 887, 134 S.E.2d 277.

Remedial statutes to be liberally construed.

1961 Creteau v. Phoenix Assur. Co., 202 Va. 641, 119 S.E.2d 336.

Uninsured motorist case. Policy issued prior to amendment of statute. Cause of action arose after amendment. Since statute was procedural it applies to this cause of action.

1952 Shanahan v. Pocahontas Fuel Co., 194 Va. 303, 72 S.E.2d 639.

Legislation affecting matters of remedy may be retroactive if clearly so expressed.

1944 Gloucester Realty Corp. v. Guthrie, 182 Va. 869, 30 S.E.2d 686.

There is a presumption that statutes operate prospectively.

For more information on statutes see the pages on Wikipedia.