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Update: Virginia Court of Appeals Holds COVID-19 Judicial Emergency Tolling Applies to All Statutes of Limitation

February 7, 2023 By Melissa H. Ryan

Due to an appeal, this is an update to our September 7, 2022 legal update post.  To access the original post, click here.

Brief Background: The case of George English v. Thomas William Quinn involved a motor vehicle accident that occurred on July 28, 2018.  Plaintiff filed his Complaint in the Roanoke City circuit court on November 30, 2020. Plaintiff and Defendant had conflicting opinions on whether Plaintiff’s case was timely filed. Defendant argued the case should be dismissed for Plaintiff’s failure to file his action within the required statute of limitations period[1].  Plaintiff argued his filing was timely because the Virginia Supreme Court’s emergency COVID-19 orders had the effect of tolling all statutes of limitation and deadlines.  Defendant argued the tolling applied only to matters that expired during the time frame of the Judicial Emergency[2].  On February 7, 2022, Judge David B. Carson met this issue of first impression.  After argument and analysis of the language of the emergency orders, Judge Carson held that the Virginia Supreme Court did not intend to broadly extend the statute of limitations in all cases.  Judge Carson ruled Plaintiff’s claims against Defendant were barred by the statue of limitations. Plaintiff appealed the ruling to the Virginia Court of Appeals.

The Court of Appeals reviewed Roanoke City circuit court’s interpretation of the Virginia Supreme Court emergency orders de novo[3]. The Court of Appeals disagreed with the lower court, and, in an opinion authored by Judge William G. Petty, held the circuit court erred in dismissing Plaintiff’s Complaint.

Like Judge Carson, the Court of Appeals focused on the language of the emergency orders; however, they came to a different conclusion.  The dispute in interpretation can be focused to the language of the Second Judicial Emergency Order, which stated that “all applicable deadlines, time schedules and filing requirements, including any applicable statute of limitations which would otherwise run during the period this order is in effect, are hereby tolled and extended.[4]” It was Defendant’s contention that the Second Order implicitly excluded statutes of limitations that would expire after the tolling period ended.  The Court of Appeals held they were bound by the plain language of the terms of the orders as defined by the Virginia Supreme Court and they could not isolate terms or add words or meaning to the orders as entered.  Specifically, the Court of Appeals determined that when read together, the words “run” and “expire” were not used synonymously by the Virginia Supreme Court and their meanings had to be interpreted as defined. See English v. Quinn, 76 Va. App. 80, 90-91 (2022).  For example, the court noted that for purposes of statutes of limitation, “run” typically refers to a period that is ongoing or would start in the future. Id. at 90.   The Court held the Virginia Supreme Court’s choice to use the word “run” indicated it “plainly referred to limitations periods that would be ongoing during the period of judicial emergency, rather than those that would ‘expire.’” Id. at 91.

Furthermore, the Court determined Defendant’s argument did not account for the fact that each order that was entered after the Second Judicial Emergency Order superseded its provisions. In the end, the Court of Appeals held the plain language of the Judicial Emergency Orders tolled all statues of limitations from March 16, 2020, through July 19, 2020.  The circuit court’s judgment has been reversed, and the matter remanded for further proceedings. The full text of the Court of Appeals decision can be found here.

[1] The statute of limitations in Virginia for personally injury is two (2) years from the date of injury, which means that under ordinary circumstances, the plaintiff in this case would have been required to file his lawsuit on or before July 28, 2020.

[2] The Judicial Emergency tolling period was between March 16, 2020, and July 19. 2020.

[3] De novo is a Latin term that means “anew,” “from the beginning,” or “afresh.”  An appellate court hearing a case “de novo” may refer to the lower court’s record to determine the facts but will rule on the evidence and matters of law without deferring to that court’s findings.

[4] Va. Sup. Ct.’s Second Order Extending Declaration of Judicial Emergency (emphasis added).