Waterman v. Halverson, Record No. 000260.

• Docket Nº: Record No. 000260.
• Citation: 261 Va. 203, 540 S.E.2d 867
• Case Date: January 12, 2001
• Court: Supreme Court of Virginia

540 S.E.2d 867
261 Va. 203

Laurie F.S. WATERMAN
v.
Sandy (Butler) HALVERSON, et al

Record No. 000260.

Supreme Court of Virginia.

January 12, 2001.

Avery T. Waterman, Jr., (Patten, Wornom, Hatten & Diamonstein, on briefs), Newport News, for appellant.

Carolyn P. Oast (Deborah S. Prince; Heilig, McKenny, Fraim & Lollar, on brief), Norfolk, for appellees Sandy (Butler) Haverson, Michelle "Roe" McCormick and Riverside Hospital, Inc.

Gerald R. Walsh, Fairfax, for appellees Nancy Couleman, M.D. and Paul Rein, M.D.

Amici Curiae: Virginia Trial Lawyers Association (Jason W. Konvicka; Allen, Allen, Allen & Allen, on brief), Richmond, in support of appellant.

Present: LACY, HASSELL, KEENAN, KOONTZ, KINSER, and LEMONS, JJ., and WHITING, Senior Justice.

WHITING, Senior Justice.

In this appeal we consider whether the trial court erred in dismissing plaintiffs motion for judgment as untimely filed based on its construction of Code § 8.01-275.1.

540 S.E.2d 868

Laurie F.S. Waterman filed a medical malpractice action against Sandy (Butler) Halverson, Michelle "Roe" McCormick, Riverside Hospital, Inc., Nancy Couleman, and Paul Rein in the Circuit Court of the City of Portsmouth (the defendants).¹ More than twelve months after the filing of this action, Waterman sought and was granted a nonsuit. The defendants were not served with process and had no notice of the nonsuit motion or order granting the motion

On October 3, 1997, less than six months after the nonsuit was granted but more than two years after Waterman's medical treatments ended, Waterman filed this action against the same parties in the same court and promptly had the defendants served with process. Later, by agreement, the case was transferred to the Circuit Court of' the City of Newport News.

The defendants filed pleas in bar asserting that the case should be dismissed on various theories. Following consideration of the parties' briefs and oral arguments on the defendants' pleas in bar, the trial court concluded that the action was barred by the statute of limitations and dismissed the motion for judgment with prejudice. The trial court's decision was based on its conclusion that Code § 8.01-275.1 was enacted to "eliminate the problems that the Supreme Court addressed in Clark v. [Butler Aviation, 238 Va. 506, 385 S.E.2d 847 (1989)]."² Adopting a theory advanced by some of the defendants, the trial court construed Code § 8.01-275.1 to "eliminate the problems" by providing that service of process, if not completed within one year of the filing of an action, was "untimely," and, under those circumstances, the "only authority the Court should have is to determine if due diligence was exercised to have timely service effected on the defendants." Applying that construction of Code § 8.01-275.1 to this case, the trial court concluded that because there was no service of process within twelve months of filing in the original action, the jurisdiction of the court in that action was limited to consideration of the plaintiffs due diligence in effecting service and, therefore, that court had no jurisdiction to consider the motion for the nonsuit.

On appeal Waterman assigns error to the trial court's construction of Code § 8.01-275.1. Waterman asserts that the statute codified Rule 3:3(c) and did not abrogate the holding in Clark and its progeny.³ Having reviewed the relevant...