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Cautionary Tale Regarding the Quirks of Virginia’s Nonsuit Statute

August 15, 2017 By Jennifer L. Rowlett

The Circuit Court for the City of Roanoke highlighted another noteworthy quirk regarding the application of the Virginia Nonsuit Statute in Eakin v. James A. Dent, Administrator of the Estate of Jeanette E. Saunders, Deceased.  In Eakin, the Court granted the Defendant’s Plea in Bar for untimely filing and dismissed the case with prejudice.  

The case involved a September 27, 2012 motor vehicle accident between Plaintiff, Donald Eakin, and Jeanette Saunders in the City of Roanoke, Virginia.  Plaintiff filed suit against Defendant Saunders in August 2014, just prior to the two-year statute of limitations running.  Plaintiff subsequently nonsuited1 his case in August 2015 without having requested a summons for service2 of the lawsuit on Defendant Saunders.

Plaintiff re-filed the lawsuit against Defendant Saunders in December 2015, and again, waited nearly a year before requesting a summons to be issued and served upon Defendant Saunders.  The service attempt was ineffective.  It was discovered that unbeknownst to Plaintiff, Defendant Saunders died in November 2013.  As a result, Plaintiff amended his Complaint to name the Administrator of Defendant’s Estate as the named Defendant and served said Administrator with the lawsuit.

The attorney for the Defendant Administrator specially appeared to file and argue a Plea in Bar for Plaintiff’s failure to timely file the lawsuit within the two-year statute of limitations period as required by Virginia law.  Plaintiff argued that the lawsuit was re-filed within the six-month tolling period permitted by Virginia Code 8.01-229 and the amended complaint was proper based on the newly acquired information regarding the death of Ms. Saunders.  

Ultimately, the Court noted that while Virginia Code 8.01-229 can operate to toll a statute of limitations in certain circumstances, a nonsuit is ineffective to toll the statute of limitations against a party differing from the one named in the original suit.  Since the Administrator of Saunders’ Estate is a different party than Ms. Saunders (the decedent), the lawsuit against the Administrator should have been brought within two years from the accident date (i.e. by September 27, 2014).

While the Circuit Court emphasized the large gaps of time involved in the handling of the case (i.e. references the “almost 11 months” between the case being re-filed and service being requested) it is unclear if this Court believed that judicial discretion was permitted in its decision.  On the one hand, this seems to be a harsh result upon a plaintiff who did not discover that a defendant had died until well after the statute of limitations had run; however, this author suspects that the Court had little sympathy in this case since it appears that diligent efforts with respect to service would have likely resulted in the Plaintiff discovering Saunders’ death well before the expiration of limitations.

As discussed in prior blog posts, Virginia Code 8.01-229 permits a plaintiff to voluntarily dismiss (nonsuit) a case and subsequently re-file the action provided certain criteria are met.  In certain circumstances, the statute allows for a tolling of the statute of limitations.

Virginia rules provide a plaintiff up to one year to serve a defendant with a timely filed lawsuit.