Laws v. McIlroy

• Decision Date: 20 April 2012
• Docket Number: Record Nos. 110485,110646.
• Citation: 724 S.E.2d 699
• Court: Virginia Supreme Court
• Parties: Lisa LAWS v. Calvin McILROY, Jr.Carmen Tinker v. Calvin McIlroy, Jr.

724 S.E.2d 699

Lisa LAWS

v.Calvin McILROY, Jr.Carmen Tinker

v.Calvin McIlroy, Jr.

Record Nos. 110485

110646.

Supreme Court of Virginia.

April 20, 2012.

Jeffrey M. Summons for appellants.

B. Craig Dunkum (Stark, Dunkum & Stark, on brief), for appellee.

Present: All the Justices.

Opinion by Justice DONALD W. LEMONS.

In these appeals, we consider whether the Circuit Court of Buckingham County (the “circuit court”) erred when it granted motions to dismiss filed by the individual defendant Calvin McIlroy, Jr. (“McIlroy”), the plea in bar filed by Government Employees Insurance Company (“GEICO”), and the motion to dismiss lodged by State Farm Mutual Automobile Insurance Company (“State Farm”), all relying on Code § 8.01–229(E)(3).

I. Facts and Proceedings Below

On May 21, 2008, Lisa Laws (“Laws”) and Carmen Tinker (“Tinker”) each filed a complaint against McIlroy and Calvin McIlroy, Sr. (“McIlroy Sr.”) in the circuit court for damages arising out of a motor vehicle accident that occurred on June 8, 2007. The complaints alleged that Laws was a passenger in a vehicle operated by Tinker and that McIlroy “negligently and carelessly” operated a vehicle that struck the rear of Tinker's vehicle. The complaints further alleged that McIlroy Sr., who owned the vehicle operated by McIlroy, negligently entrusted his vehicle to McIlroy. GEICO and State Farm, the potential uninsured/underinsured motorist carriers, were served with a copy of Laws' complaint and State Farm was served with a copy of Tinker's complaint.¹

Laws and Tinker each submitted an order of nonsuit to the circuit court on January 8, 2010, but these orders were not entered. Both Laws and Tinker indicated in their respective written statement of facts, filed in the circuit court pursuant to Rule 5:11(e), that the nonsuit orders were required to be resubmitted. McIlroy stated in his objections to the statements of facts that the nonsuit orders forwarded to him “and presumably to the Court, on or about January 8, 2010 were not endorsed by counsel for the plaintiff or by defense counsel.” The nonsuit orders were resubmitted on January 28, 2010, with the endorsements of all counsel. The circuit court entered the nonsuit orders on February 4, 2010.

Significantly, Laws and Tinker filed second, identical lawsuits in the circuit court on January 19, 2010, before the nonsuit orders were entered by the circuit court.² Thereafter, McIlroy filed answers to both Laws' and Tinker's second complaints. GEICO and State Farm also filed answers to the second complaints pursuant to Code § 38.2–2206(F).

State Farm subsequently filed a motion for leave to amend its answer to include the statute of limitations as an affirmative defense. Although the circuit court did not rule on State Farm's motion to amend, State Farm filed an amended answer. The only difference between State Farm's answer and its amended answer was that the amended answer stated “[t]he Company specifically asserts the defense of statute of limitations.”

McIlroy then filed motions to dismiss the complaints, arguing that both cases were “barred by the applicable [two year] statute of limitations and must be dismissed” and that Code § 8.01–229(E)(3)'s tolling provision did not apply in either case because it “clearly states that a plaintiff has six months to refile after the Court has entered a nonsuit order.” (Emphasis added.) McIlroy also argued in his motions to dismiss that because “no nonsuit order[s] w[ere] entered at the time the Second Action[s were] filed, [Laws and Tinker] cannot take advantage of the tolling provisions.” Additionally, GEICO filed a plea in bar and State Farm filed a motion to dismiss, and both insurance companies raised the same arguments made by McIlroy in his motions to dismiss.

Thereafter, the circuit court held that Laws' and Tinker's January 19, 2010 complaints were not timely filed pursuant to Code §§ 8.01–229(E)(3) and 8.01–243. Consequently, the circuit court granted McIlroy's motions to dismiss and entered final orders dismissing the actions with prejudice.

Laws and Tinker timely filed their notices of appeal, and we granted these appeals on the following assignments of error: For Lisa Laws v. Calvin McIlroy, Jr., Record No. 110485:

1. The trial court erroneously interpreted Code § 8.01–229 and Virginia law when considering McIlroy's motion to dismiss and GEICO's plea in bar. As a result, it improperly dismissed the case.

For Carmen Tinker v. Calvin McIlroy, Jr., Record No. 110646:

1. The trial court erroneously interpreted Code § 8.01–229 and Virginia law when considering McIlroy's and State Farm's motions to dismiss. As a result, it improperly dismissed the case.

2. The trial court erroneously considered State Farm's motion to dismiss without first allowing the amendment of the company's answer to include the affirmative defense of the statute of limitations.

II. Analysis

A. Standard of Review

Well-settled principles of statutory review guide our analysis in this case.

[A]n issue of statutory interpretation is a pure question of law which we review de novo. When the language of a statute is unambiguous, we are bound by the plain meaning of that language. Furthermore, we must give effect to the legislature's intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity. If a statute is subject to more than one interpretation, we must apply the interpretation that will carry out the legislative intent behind the statute.

Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007) (citations omitted). Moreover, “[t]he plain, obvious, and rational meaning of a statute is to be preferred over any curious, narrow, or strained construction.” Meeks v. Commonwealth, 274 Va. 798, 802, 651 S.E.2d 637, 639 (2007) (citation and internal quotation marks omitted).

B. Interpretation of Code § 8.01–229(E)(3)

Laws' and Tinker's negligence actions are governed by the two-year statute of limitations for personal injuries. Code § 8.01–243(A). The statute of limitations begins to run when the cause of action accrues, which, here, is “the date the injury is sustained in the case of injury to the person.” Code § 8.01–230. Laws and Tinker each sued McIlroy for personal injuries sustained in a motor vehicle accident that occurred on June 8, 2007. Because Laws' and Tinker's causes of actions “accrued” on June 8, 2007, they had until June 8, 2009, to file their respective complaints absent an event tolling the statute of limitations. Code §§ 8.01–230 and –243(A); Code § 1–210(A).

Code § 8.01–229(E)(3) deals generally with the subject of tolling statutes of limitations and provides, in relevant part,

If a plaintiff suffers a voluntary nonsuit as prescribed in § 8.01–380, the statute of limitations with respect to such action shall be tolled by the commencement of the nonsuited action, and the plaintiff may recommence his action within six months from the date of the order entered by the court, or within the original period of limitation, ... whichever period is longer.

(Emphasis added.)

Pursuant to Code § 8.01–380(A), a plaintiff is permitted one nonsuit as a matter of right if “he does so before a motion to strike the evidence has been sustained or before the jury retires from the bar or before the action has been submitted to the court for a decision.” Laws and Tinker each filed their second complaints against McIlroy and the other defendants named in their initial complaints on January 19, 2010; however, the nonsuit orders in their original cases were not entered by the circuit court until February 4, 2010, after Laws and Tinker refiled their respective complaints.

On appeal, Laws and Tinker argue in their briefs that the “tolling statute does not say within the six months following or after the date of the order; it simply says within six months of the order.” (Emphasis in original.) As a result, Laws and Tinker also argue that the circuit court erred in granting McIlroy's motions to dismiss, GEICO's plea in bar, and State Farm's motion to dismiss because they refiled their respective complaints on January 19, 2010, which was within six months of the date the circuit court entered the nonsuit orders, February 4, 2010. We agree.

Code § 8.01–229(E)(3) states that a “plaintiff may recommence [an] action within six months from the date of the order entered by the court.” Code § 8.01–229(E)(3) (emphasis added). “Recommence” means “to undergo a new beginning” or to “start up again.” Webster's Third New International Dictionary 1897 (1993). “From” is “used as a function word to indicate a starting point.” Id. at 913. We have always characterized an action filed in relation to a nonsuit as a “new” action. A “new action stands independently of any prior nonsuited action.” Antisdel v. Ashby, 279 Va. 42, 47, 688 S.E.2d 163, 166 (2010).

Additionally, we have recognized the permissibility of two identical suits pending in different venues in Moore v. Gillis, 239 Va. 239, 389 S.E.2d 453 (1990). In Moore, an inmate (Moore) sued a correctional officer for personal injuries. The first suit was brought in the Circuit Court of the City of Richmond. Id. at 240, 389 S.E.2d at 453. The trial court granted the correctional officer's (Gillis') motion to transfer venue of the action to the Circuit Court of Brunswick County. Before the transfer order was entered, Moore filed another motion for judgment on the same claim in the Circuit Court of the City of Richmond. Id. Both actions remained pending, one in the City of Richmond and the other in Brunswick County, for almost one year. Moore then nonsuited the first action which had been transferred and was then pending in Brunswick County. Id. Several months later, the Circuit Court of the City of Richmond, “acting on its own motion,” held that it lacked jurisdiction to “hear the new proceeding,” which was the second suit filed in Richmond, and dismissed Moore's second...