Laws v. McIlroy
724 S.E.2d 699
Va.2012Background
- Laws and Tinker filed separate negligence actions against McIlroy and McIlroy Sr. arising from a June 8, 2007 motor vehicle collision.
- Two-year limitations apply to personal injuries; accrual occurred on June 8, 2007, giving a deadline of June 8, 2009 absent tolling.
- Laws and Tinker filed their first actions on May 21, 2008 but did not have timely nonsuit entries; the nonsuits were not entered until February 4, 2010.
- Laws and Tinker filed identical second complaints on January 19, 2010, before the nonsuit orders were entered in the first actions.
- McIlroy and insurers GEICO and State Farm moved to dismiss under Code § 8.01-229(E)(3), arguing tolling did not apply; the circuit court agreed they were time-barred.
- The Virginia Supreme Court granted the appeals, reversing and holding the second actions were timely under the tolling provision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Code § 8.01-229(E)(3) tolls for a second action begun within six months of the nonsuit order. | Laws/Tinker: tolling begins from the nonsuit order; filing before the order can still be timely. | McIlroy/GEICO/State Farm: tolling applies only if the second action is filed within six months after the nonsuit order. | Yes; second actions filed Jan 19, 2010 were timely within six months of February 4, 2010 nonsuit orders. |
| Whether filing a second action before the nonsuit order can qualify for tolling under § 8.01-229(E)(3). | Second action is a new action and can be tolled. | Tolled only after the nonsuit order is entered; the second action cannot commence before the first ends. | No; tolling requires recommencement after the order; filing before nonsuit is not tolled. |
| Whether the circuit court erred by not allowing State Farm to amend to include the statute of limitations as an affirmative defense before dismissal. | State Farm should be allowed to amend and raise statute of limitations. | State Farm's defenses were moot once claims against McIlroy were dismissed. | Harmless error; mootness due to dismissal of McIlroy eliminated State Farm’s potential liability. |
Key Cases Cited
- Antisdel v. Ashby, 279 Va. 42 (Va. 2010) (tolling and new action concept in similar context)
- Moore v. Gillis, 239 Va. 239 (Va. 1990) (second action before nonsuit allowed; venue issue distinct)
- Nash v. Jewell, 227 Va. 230 (Va. 1984) (nonsuit terminates litigation; no end before order)
- Janvier v. Arminio, 272 Va. 353 (Va. 2006) (application of tolling after nonsuit; statutory interpretation)
- Meeks v. Commonwealth, 274 Va. 798 (Va. 2007) (statutory interpretation; plain meaning governs)