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Virginia Non-Suit Statute Extends Statute of Limitations Even Where the Defendant is Misnamed in the First Lawsuit

January 12, 2017 By Gerald W. Ueckermann, Jr.

Virginia law provides that a plaintiff has a right to voluntarily non-suit (dismiss) a lawsuit one time, and that the plaintiff then can file a second lawsuit within six months of the non-suit even though the statute of limitations would otherwise have expired.

But can a plaintiff who has misnamed the defendant in the first suit proceed against a correctly-named defendant in a second suit?  The Virginia Supreme Court recently held that in the case of Richmond v. Volk that they could.

In 2009, Linda Richmond was injured when her vehicle was struck from behind by a vehicle driven by Katherine Volk, who was then unmarried and was known by her maiden name, Katherine Craft.  The vehicle Volk was driving was owned by Jeannie Cornett.

In 2011, Richmond filed a complaint arising from the accident naming “Katherine E. Cornett” as the defendant.  Richmond subsequently directed the clerk to serve process on “Katherine E. Cornett, a/k/a Katherine Craft” at Cornett’s address.  Richmond later non-suited her claim pursuant to Virginia Code § 8.01-380.

In 2012, Richmond filed a second complaint in which she now identified the defendant as “Katherine E. Volk, f/k/a Katherine E. Craft, a/k/a Katherine E. Cornett.”  Volk then filed a plea in bar asserting that Richmond’s claim was barred by the statute of limitations.  She contended that the six-month extension of the statute of limitations that applies to non-suited cases did not apply to the recommenced action in which a different defendant was named.  After the trial court agreed, Richmond appealed.

The Virginia Supreme Court, in a 4-3 decision, ruled that the second action was not barred by the statute of limitations.  In doing so, it found that the six-month extension applicable to non-suited actions set forth in Virginia Code § 8.01-229(E) extended the statute of limitations applicable to plaintiff’s claim.  The majority noted that in order for the extension provisions of § 8.01-229(E) to apply, there must be “identity of the parties” in the initial action and a recommenced action.  If the naming of “Katherine E. Cornett” in the 2011 complaint were deemed to be a misnomer rather than a misjoinder, the extension provisions of the non-suit statute would apply.  The court stated that the “key distinction between a misnomer and a misjoinder is whether the incorrectly-named party in the pleadings is, in fact, a correct party who has been sufficiently identified in the pleadings.”  The court then found that the original complaint established that the intended defendant was the driver of a specific vehicle that was in a specific location at a specific time and that the driver of that vehicle committed a specific act.  Since Volk was the only person who fit this description, it was readily apparent that the person against whom the first lawsuit was intended to be filed was Volk.  Thus, the court concluded that the use of the name “Katherine E. Cornett” was a misnomer, not a misjoinder.

Since the identity of the parties was the same in the first lawsuit and the second lawsuit, the majority held that there had been no change in the identity of the parties and, therefore, the non-suit statute extending the statute of limitations applied.

Three justices dissented.  They contended that the majority’s decision failed to give effect to a Virginia statute that requires that a misnomer be corrected by a court order.  Since there had been no order correcting the misnomer in the first lawsuit, the dissenting justices contended that the plaintiff should not be permitted to amend the complaint by non-suiting the first case and then bringing a second lawsuit naming the correct defendant.