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Wrongful Death Suit Not Time-Barred After Period of Inactivity
(January 2010) By Colleen K. O'Brien, Associate
For more information, contact Paul Farquharson.
Conger v. Barrett,
No. 091492 (Va. Nov. 4, 2010) |
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When Paul R. Conger died in 2001, his widow, Shirley
Conger, filed a wrongful death lawsuit against his doctors, Eugene J. Barrett,
M.D. and James C. Vandewater, M.D. The doctors filed timely responsive
pleadings, but no other proceedings were filed in the case. Years later, in
2007, the doctors sought dismissal of the case under Va. Code Ann. §
8.01-335(B). That statute empowers courts to strike from their dockets cases
that have no orders or proceedings for more than two years. Accordingly, the
trial court entered the dismissal order, but then granted Ms. Conger's Motion to
Reinstate the case. The doctors argued that re-instating the case was
time-barred by the statute of limitations found in Va. Code Ann. § 8.01-244(B).
The trial court agreed with the doctors and dismissed Ms. Conger's case.
The appellate court resolved the issue of which statutory
provision was controlling. It revisited the canons of statutory construction
requiring courts to give effect to legislative intent, and to read related
statutes together to the extent possible. The Court ruled that both statutory
provisions were implicated, but not in conflict. § 8.01-244(B) tolls the
two-year statute of limitations period while a wrongful death lawsuit is
pending. If the pending lawsuit is ended, the limitations period begins to run
again, and the Plaintiff must commence a new action before any remaining time
expires.
Under § 8.01-335(B), a case is dismissed without
determining the merits of the case, and the dismissal resumes the two year
statute of limitations. The Court noted that statutes of limitation only bar
the commencement of actions, but generally have no effect on actions already
pending. Thus, by its plain terms, § 8.01-244(B) bars only the filing of
“another action” if the two-year limitation period has expired. Ms. Conger's
motion to reinstate her earlier case did not create “another action,” and
therefore was not subject to the statute of limitations in § 8.01-244(B).
Consequently, the trial court erred by dismissing the
claim as time-barred. Accordingly, the appellate court reversed and remanded
the case.
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