Anytime you are thinking about filing a personal injury lawsuit in Virginia, you need to be mindful of the statute of limitations. This is the deadline imposed by state law for filing a lawsuit. You do not actually have to try or complete your case within the limitations period–indeed, that would be impossible in most cases. Instead, you simply need to file and serve the defendant within the specified time limit.
For most personal injury claims, Virginia’s statute of limitations is 2 years from the date the injury occurred. Here is a very simple hypothetical example. Joseph and Kathleen are two drivers involved in an auto accident. Joseph suffered serious injuries and required hospitalization. He believes Kathleen’s reckless driving caused the accident, so he decides to file a personal injury lawsuit against her in Virginia. The accident took place on July 1, 2022. To comply with the statute of limitations, Joseph must file his lawsuit no later than July 1, 2024.
The Statute of Limitations and Virginia’s Voluntary Nonsuit Rule
As with just about any legal rule, of course, there are some exceptions and qualifications to Virginia’s statute of limitations. One key exception involves a plaintiff’s right to voluntarily dismiss or “nonsuit” their case. Under Virginia court rules, a plaintiff generally has the right to nonsuit their personal injury lawsuit one time. This may occur at just about any stage of the litigation, even after trial has begun, but not after the close of evidence or the case goes to the jury.
There are many reasons why a plaintiff would opt for a voluntary dismissal. The plaintiff may wish to gather additional evidence or correct a potential flaw in their case. They may decide that the trial is not going well and want to start over with a new jury. Or the judge might have made a ruling that was unfavorable to the plaintiff. Whatever the reason, the first voluntary nonsuit is “by right” in Virginia. If a case was previously nonsuited, however, the plaintiff would need the judge’s permission to dismiss the case a second or subsequent time.
Since a voluntary nonsuit by right is considered “without prejudice,” the plaintiff is free to re-file the same case against the same defendants at a later date. But what about the statute of limitations? In many cases, the original two-year deadline will have long expired when a plaintiff exercises their right to nonsuit. To account for this, Virginia suspends or “tolls” the statute of limitations for six months following the nonsuit.
So let’s go back to our hypothetical case. Joseph filed his lawsuit against Kathleen on June 1, 2024, one month before the two-year limitation period expired. But after conducting pre-trial discovery, Joseph decided to nonsuit his case on November 1, 2024. Since the original limitations period has expired, he would then have until May 1, 2024—six months after his voluntary dismissal–to re-file against Kathleen.
Court of Appeals Rejects Re-Filed Lawsuit Against Estate of Deceased Driver
The right to refile a lawsuit up to six months after a voluntary nonsuit assumes that the original lawsuit was itself valid. Put another way, if the original complaint was “null and void” for some reason, then the statute of limitations will not be tolled following a dismissal of the invalid lawsuit. The plaintiff could then lose their right to seek compensation if they are unable to re-file within the original two-year limitations period for personal injury claims.
The Virginia Court of Appeals recently addressed such a case. In Clutteur v. Rosier, the plaintiffs and her husband were seriously injured in a car accident. The accident took place on January 2, 2017. On December 14, 2018, a few weeks before the two-year limitations period expired, the plaintiff filed a personal injury lawsuit against the other driver, alleging her negligence caused the accident.
Unfortunately, the other driver had died in September 2017. Under Virginia law, a deceased individual cannot be a defendant (or a plaintiff) in a civil lawsuit. Rather, the personal representative of their estate is considered the proper party. So the plaintiff here should have sued the other driver’s estate and not the driver personally.
It was not until April 2021, however, that a personal representative was appointed for the driver’s estate. The estate then moved to declare the plaintiff’s lawsuit “a nullity” since the plaintiff failed to properly substitute the estate as a party within the two-year limitations period. The plaintiff then moved to make the substitution. But before the court ruled on that motion, the plaintiff voluntarily nonsuited her case in July 2021.
The plaintiff then tried to re-filed her lawsuit a few weeks later. This would have been within the six-month tolling period, except the estate argued–and the trial court agreed–that since the original complaint was a “legal nullity,” the plaintiff’s case was barred under the original two-year statute of limitations. The Circuit Court therefore dismissed the lawsuit with prejudice.
The Court of Appeals upheld that decision. Under Virginia law, a plaintiff does have an opportunity to substitute the estate for a deceased defendant. But the plaintiff here did not take advantage of that opportunity with the prescribed time limit. Her original lawsuit was therefore a “nullity,” since you cannot sue a dead person.
In other words, you can only voluntarily dismiss and refile a lawsuit if the original lawsuit was valid. Here, the original lawsuit was not valid. So even though the plaintiff’s re-filed lawsuit named the correct party, it was still filed too late as far as the statute of limitations was concerned.
Speak with a Winchester Personal Injury Lawyer Today
While two years might sound like more than enough time to prepare and file a personal injury lawsuit, the reality is that even a seemingly simple case involving a car accident can raise unforeseen complications that require significant time and effort to address.
If you are looking to file a lawsuit, it is in your best interest to speak with an experienced Winchester personal injury attorney as soon as possible. Call the Correll Law Firm today at (540) 535-2005 or contact us online to schedule a free consultation.