Richmond v. Volk, 781 S.E.2d 191

On April 12, 2009, Richmond was rear-ended by a vehicle driven by Katherine E. Volk (then Katherine E. Craft); the vehicle was owned by Jeannie Cornett and insured by State Farm.
Richmond sued on February 28, 2011, captioned "Linda E. Richmond v. Katherine E. Cornett," i.e., she used the wrong defendant name (a misnomer). A copy of that complaint was sent to State Farm.
Service efforts were flawed: process was directed to Cornett’s address and posted there; Volk moved to quash service on grounds of defective service but expressly acknowledged she was the person referred to in the complaint (stating she was “erroneously identified in the caption as ‘Katherine E. Cornett’”).
Richmond voluntarily took a nonsuit; counsel for Volk endorsed the consent nonsuit order. Richmond refiled on December 11, 2012, properly naming Volk. Volk pleaded the refiled claim barred by the statute of limitations, arguing the original filing did not toll because Richmond failed to amend under Code § 8.01‑6.
The trial court sustained the plea in bar, finding Volk was not the same person as the captioned "Cornett," and that Richmond had not corrected the error under § 8.01‑6 before nonsuit.
The Supreme Court reversed: the 2011 complaint, read as a whole, sufficiently identified Volk (so the error was a misnomer, not misjoinder), § 8.01‑229(E) tolled the limitations period, and the 2012 refile was timely within the nonsuit tolling period.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a complaint that misnames the defendant ("Katherine E. Cornett") tolled the statute of limitations so the later, correctly named refile (against Volk) was timely	The 2011 complaint sufficiently identified Volk as the defendant (misnomer), Volk participated (counsel endorsed nonsuit), and § 8.01‑229(E) tolled limitations so the 2012 refile is timely	Because Richmond never corrected the misnomer under Code § 8.01‑6 before nonsuit, the original suit did not identify the same party for tolling; thus the refile is time‑barred	Reversed. The pleading as a whole identified Volk (misnomer, not misjoinder); identity-of-parties requirement for § 8.01‑229(E) is met, so tolling applied and the 2012 complaint was timely

Rockwell v. Allman, 211 Va. 560 (1971) (describes a misnomer as a mistake in name, not person)
Swann v. Marks, 252 Va. 181 (1996) (misnomer occurs where proper party is identified but incorrectly named)
Clark v. Butler Aviation-Washington National, Inc., 238 Va. 506 (1989) (failure of procedural requirements in original suit does not necessarily prevent tolling under nonsuit statute)
Casey v. Merck & Co., 283 Va. 411 (2012) (tolled nonsuit provision requires identity of parties between original and recommenced actions)
Estate of James v. Peyton, 277 Va. 443 (2009) (pleading must be considered as a whole to determine whether party is properly identified)
Antisdel v. Ashby, 279 Va. 42 (2010) (recommenced action stands independently of prior nonsuited action)
Thomas Gemmell, Inc. v. Svea Fire & Life, Ins., 166 Va. 95 (1936) (nonsuit terminates the original action)