893 S.E.2d 424
Va. Ct. App.2023Background
- On Jan. 2, 2017 Clutteur alleges personal injuries from a collision with a car driven by Nancy C. Rosier. Rosier died Sept. 17, 2017.
- Clutteur sued “Nancy C. Rosier” on Dec. 14, 2018 (within two‑year personal‑injury limitations), but Rosier had already been deceased.
- Erie Insurance, served under Code § 38.2‑2206, answered in the name of Rosier; a personal representative qualified Apr. 16, 2021 under Code § 64.2‑454.
- Clutteur moved to substitute the personal representative on Apr. 27, 2021, but before a ruling she took a nonsuit (order entered July 26, 2021) and then recommenced suit Aug. 17, 2021.
- Rosier (through insurer counsel) filed a plea‑in‑bar asserting the original suit was a nullity because Clutteur failed to timely substitute a personal representative under Code § 8.01‑229(B)(2)(b), so no tolling applied; the circuit court sustained the plea and dismissed with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an action filed naming a decedent becomes a nullity when not amended to substitute a personal representative within the § 8.01‑229(B)(2)(b) window | Clutteur: § 8.01‑229(B)(2)(b) permits converting the suit and the original filing preserves tolling; failure to amend simply means restart by nonsuit | Rosier: If the statutory substitution period expires the suit is a nullity and has no legal effect or tolling | Court: Once the § 8.01‑229(B)(2)(b) amendment window expired, the original suit was a nullity with no legal effect or tolling |
| Whether a nonsuit of that (original) action tolled limitations under § 8.01‑229(E)(3) | Clutteur: The nonsuit (taken within six months) preserved the commencement date and tolled the statute, allowing recommencement | Rosier: Because the original suit was a nullity it could not be nonsuited and thus cannot confer tolling | Court: A nullity cannot be nonsuited; no tolling by the nonsuited (void) action |
| Whether insurer counsel’s general appearance in the name of the decedent tolled limitations or excused amendment | Clutteur: General appearance/pleadings by Erie in Rosier’s name tolled or estopped defendant from asserting limitations | Rosier: Insurance counsel’s appearances do not make counsel the party or the PR, nor do they alter statutory deadlines | Court: General appearance by insurer counsel did not toll limitations or substitute for PR duties; it did not relieve plaintiff of timely amendment requirement |
| Whether the recommenced (second) complaint could be amended and was timely | Clutteur: The second complaint (Aug. 17, 2021) could be amended under § 8.01‑229(B)(2)(b) and would relate back | Rosier: Even if amendable, the personal‑representative commencement window under § 8.01‑229(B)(2)(a) and § 8.01‑229(B)(6) had passed; the second complaint is time‑barred | Court: Second complaint could be amended but any resulting action would be untimely; plea‑in‑bar sustained and complaint dismissed with prejudice |
Key Cases Cited
- Ray v. Ready, 296 Va. 553 (Va. 2018) (suits must be prosecuted by/against living parties; naming a decedent is not a mere misnomer)
- McManama v. Plunk, 250 Va. 27 (Va. 1995) (substitution under § 8.01‑229(B)(2)(b) can save a suit originally filed against a defendant who later died while suit was pending)
- Estate of James v. Peyton, 277 Va. 443 (Va. 2009) (failure to name PR does not relate back absent statutory authorization)
- Swann v. Marks, 252 Va. 181 (Va. 1996) (personal‑injury suits against a decedent must be brought against the decedent’s personal representative)
- Johnston Mem’l Hosp. v. Bazemore, 277 Va. 308 (Va. 2009) (only a validly pending proceeding can be nonsuited; a nullity cannot be nonsuited)