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Shapiro & Appleton

Comparison and Summary of Virginia and North Carolina Personal Injury/Tort Laws

If you or a loved one suffered a personal injury in any city in Virginia (e.g., Norfolk, Virginia Beach, Chesapeake, etc.) or North Carolina (e.g., Elizabeth City, Nags Head, Kitty Hawk, etc.) this guide provides a quick summary comparing Virginia and North Carolina personal injury / tort laws (note that this is a guide, and is not specifically legal advice for any particular Virginia or North Carolina personal injury case or wrongful death claim).

During 2016, the outgoing president of the Virginia State Bar invited theVirginia personal injury lawyer-author (Richard N. Shapiro) to participate in a lecture discussing the interplay between Virginia and North Carolina law. I was the only member of the panel involved in the continuing legal education seminar for Virginia lawyers who held both a Virginia and a North Carolina law license and since I exclusively practice personal injury law for plaintiffs, it seemed natural for me to focus on the personal injury law interplay of personal injury/tort law between these two states. And of course Virginia Beach, the city of our home office, is a large geographical city that borders the northeast corner of North Carolina and more and more people commute between the two states.

Also I did internet research on Virginia personal injury law as well as on North Carolina personal injury law, and I didn't find any short, handy summary of personal injury law in either Virginia or North Carolina. Frankly, that's what motivated me to create the summary of personal injury law in Virginia (and NC), because I also field many phone calls from out-of-state lawyers who have a basic question about a VA or NC case that they need answered whether to be filed in Virginia for personal injury or wrongful death, or some aspect of personal injury law that they needed an answer for their case outside Virginia.

The other interesting part about being licensed in the bordering states of Virginia and North Carolina, is that in a small number of cases there is a choice whether to file a case in Virginia versus North Carolina or vice versa. There are some definite reasons to pick one state over the other but it varies by type of personal injury case. For example the typical personal injury statute of limitations for personal injury is three years in North Carolina, whereas Virginia's is two years.

In any case, we hope you find the summary of either Virginia or North Carolina personal injury law handy and of some value to you whether you are an out-of-state attorney looking for information, or just an attorney that doesn't handle personal injury law in one VA or NC.

Some of our personal injury law firm's biggest successes have been teaming with co-counsel-either out-of-state attorneys or other Virginia or Carolina attorneys that might not feel they have the specialization in an area personal injury law.

This comprehensive comparison of personal injury and wrongful death laws in Virginia and North Carolina can assist persons with potential Virginia injury cases or North Carolina injury cases, as well in-state or out-of-state attorneys who may require answers with regard to Virginia or North Carolina personal injury law. Firm attorney Rick Shapiro created this personal injury law comparison summary because many clients, and fellow attorneys, often ask:

 
This Virginia and North Carolina tort law comparison summary is an informational resource. If you have questions about how Virginia and/or North Carolina personal injury laws impact your particular case, contact our firm by filling out a quick contact form on this page or by calling 1-800-752-0042.

STATUTE OF LIMITATIONS FOR PERSONAL INJURY CLAIMS

NC
 
Causes of action for personal injury whether brought under negligence or contract (breach of warranty) must be commenced within 3 years.  N.C. Gen. Stat. § 1-52(1)-(5).  (Does not apply to wrongful death claims, only personal injury claims, see below.)
 
VA
 
Cause of actions for personal injuries must be brought within 2 years regardless of whether the action alleges negligence or an intentional tort.  Va. Code Ann. § 8.01-243(A). 

STATUTE OF LIMITATIONS FOR WRONGFUL DEATH CLAIMS

NC
 
All wrongful death actions are subject to a 2-year statute of limitations and accrue at the date of death (shorter limitation period than for personal injuries).  N.C. Gen. Stat. § 1-53(4); N.C. Gen. Stat. § 1-53(1), (4). Can be extended by fraudulent concealment; Friedland v. Gales, 131 N.C. App. 802 (1998). Not more than 10 years from defendant's last act giving rise to the cause of action; N.C. Gen. Stat. § 1-52(16), also note statute of repose as to products (see below).
 
VA
 
The Death by Wrongful Act statute provides for a 2-year statute of limitations.  Va. Code Ann. § 8.01-50, et seq., and Va. Code Ann. § 8.01-244 (Note:  If death results from the personal injuries the claim converts to one under the wrongful death act by statutory provision, and precludes decedent’s pain and suffering damages).  Va. Code Ann. §§ 8.01-25, -56.

DAMAGES CAPS – PERSONAL INJURY AND WRONGFUL DEATH

NC
 
Generally, no caps apply to personal injury or wrongful death claims for compensatory damages purposes (excluding medical malpractice claims).
 
VA
 
Virginia generally has no caps on personal injury or wrongful death claims with regard to compensatory damages recoverable (excluding medical malpractice claims or other special claims).

RECOVERABLE DAMAGES IN A WRONGFUL DEATH CASE

NC
 
To be distributed under the North Carolina Intestate Succession Act (N.C. Gen. Stat. § 28A-18-2(a) including the following recoverable damages:  (1) expenses for care incident to the injury causing death; (2) compensation for pain and suffering of decedent; (3) reasonable funeral expenses; (4) present monetary value to statutory beneficiaries of reasonably expected – net income of decedent; services, protection and care from decedent and society and companionship from decedent, punitive damages meeting other necessary requisites and nominal damages.
 
North Carolina provides that the surviving spouse receives the first $60,000 of (personal property) proceeds and the remaining statutory beneficiaries share under a mathematical formula set forth by statute. (N.C. G.S. 29-14-16).  Notably, a 2016 North Carolina Court of Appeals case held that an illegitimate child not legitimized within one year of birth does not qualify as beneficiary.  In re Estate of Williams (N.C. App. 2016) (N.C. G.S. 29-19).
 
VA
 
The Virginia Wrongful Death Act sets forth classes of statutorily defined beneficiaries.  Va. Code Ann. § 8.01-53(A) which are determined at time of verdict entered by a jury or judgment, including these recovery items:
 
Sorrow, mental anguish, and solace, which can include society, companionship, comfort, guidance, kindly offices, and advice of decedent; compensation for reasonably expected loss of income of decedent, services, protection, care and assistance provided by decedent, expenses for care, treatment, and hospitalization of the decedent incident to the injury resulting in death; reasonable funeral expenses; and punitive damages arising from willful or wanton conduct or recklessness evincing a conscious disregard for safety of others. See Virginia Code § 8.01-50 to 52.

MEDICAL MALPRACTICE CLAIMS

NC

A. The three year personal injury statute of limitations applies with special modifications – 3 years accrues from the last act of the defendant giving rise to the cause of action.  N.C. Gen. Stat. sec. 1-15(c) and 1-52(16).  1-year extension from date of discovery if loss not readily apparent to the claimant but a statute of repose prevents commencement of any suit more than 4 years from the last act of the defendant giving rise to the cause of action (as to minors different rules apply).  N.C. Gen. Stat. sec. 1-15(C).

B. Foreign Object Left in Body – Within 1 year of discovery but in no event more than 10 years from the last act of defendant giving rise to the cause of action. N.C. Gen. Stat. sec. 1-15(C).

C. Damages Cap – North Carolina limits all pain and suffering damages, as to all defendants responsible for the cause of action, to a maximum of $500,000.00 N.C. Gen. Stat. Ann. Sec 90-21.19.  There is an exception only if the jury specifically determines that both defendant's malpractice was egregious combined with that the plaintiff suffered disfigurement, loss of use of a body part, permanent injury or death.  N.C. Gen. Stat. sec 90-21.19 (provides for period Consumer Price Index adjustments every three years following 2014, in January of the calendar year).

D. Emergency Medical Treatment Medical Malpractice – Plaintiff must prove evidence by clear and convincing standard.  N.C. Gen. Stat. sec 90-21.12.

E. Liability and Damages Tried Separately –In tort actions seeking $150,000 or more, the court must order separate trials on liability and damages unless it finds good cause for a single trial. N.C. Gen. Stat. § 1A-1, Rules of Civ. Pro., Rule 42(b)(3) (defendants in medical malpractice actions generally will not waive the mandate).

F. “Magic Words” Pleading Specificity– The Complaint shall be dismissed unless it asserts "that the medical care and all medical records pertaining to the alleged negligence that are available to the plaintiff after reasonable inquiry have been reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care; or a variant that the plaintiff is seeking to have the expert qualified under Rule 702(e) and that that motion is filed along with the Complaint, or that the Complaint alternatively must allege the case falls under res ipsa loquitur.  NC Gen. Stat. Ann. § 1A-1, Rule 9 (best practice is to have an affidavit signed by a standard of care expert witness prior to the filing of the Complaint meeting the other requirements set forth above).

 
VA
 
A. Certificate of Merit Requirement – Prior to the time a plaintiff in Virginia serves a medical malpractice lawsuit on any defendant, the plaintiff must have received what is called a "certificate of merit" from a medical provider in the same/similar medical specialty who has reviewed the claim, and the appropriate medical records, and certifies that the plaintiff suffered damages as a result of the medical standard violation.  The certificate remains confidential but a plaintiff must present it in camera to a judge if demanded or requested by a defendant.  It is not filed, and it is not shared with the defendant.  The certificate is not required upon filing of the Complaint, but prior to service of process on any defendant in the suit.  Va. Code § 8.01-20.1
 
B. Medical Malpractice Damages Recovery Cap – Virginia has a total, against all defendants, damages cap as of 2016 of $2.15 million (adjusted as set forth in the statute with Consumer Price Index adjustments periodically).  Virginia Code § 8.01-581.15.
 
C. Locality Familiarity – Any healthcare provider licensed in Virginia shall be presumed to know the statewide standard of care in the specialty or field of practice, and similarly an out-of-state provider who can meet the standard in Virginia but for the lack of a Virginia license who meets the educational and examination requirements for licensure in Virginia and who becomes familiar with the statewide standard of care shall not have the testimony excluded on the ground of not practicing in Virginia.  Practitioner must have an active clinical practice in the defendant's specialty or related field of medicine within 1 year of the date of the alleged act or omission forming the basis of the action.  Va. Code § 8.01-581.20
 
D. Discovery Rule-The Supreme Court has rejected the judicial adoption of a discovery rule, Nunnally v. Artis, 254 Va. 247, 492 S.E.2d 126, (1997), but holds that continuing treatment for the same conditions tolls the statute until treatment ends. Grubbs v. Rawls, 235 Va. 607, 369 S.E.2d 683 (1988). In foreign object cases and cases of fraud or concealment, the statute is extended to one year from the date the object or injury is discovered or reasonably should have been discovered, but this extension is subject to a ten-year limit from the time the cause of action accrued. Va. Code Ann. § 8.01-243(C).  The extension for negligent failure to diagnose a malignant tumor or cancer is one year from the diagnosis date communicated to the patient by a health care provider.  Va. Code Ann. § 8.01-243(C)(3).  

PRODUCT LIABILITY CLAIMS

NC
 
North Carolina enacted substantial product liability tort reform located under General Statutes Ann.  99B-1.1, et seq.  North Carolina does not permit product liability strict liability claims.  G.S. 99B-1.1.  Numerous limitations are found in the referenced statutory scheme.
 
Statute of Repose – For actions accruing after August 5, 2009, the repose period is "more than 12 years after the date of initial purchase for use or consumption."  N.C. Gen. Stat. § 1-46.1 (this is not intended to change existing law with regard to product liability actions based on disease, which actions accrue on date of diagnosis.  Dunn v. Pac. Employers Ins. Co., 332 N.C. 129, 132, 418 S.E. 2d 645, 647(1992)).
 
VA
 
Product liability actions follow the 2-year statute of limitations.
 
Strict Liability – Virginia does not follow strict liability in tort for most product liability claims, with exceptions being ultrahazardous activities, (blasting, electricity, natural gas) (see Va. Model Jury Instruction 30.010 and 30.030) and food unwholesomeness or adulteration cases include an implied warranty similar to strict liability. See Bussey v. ESC Restaurants, Inc., 620 S.E.2d 764 (Va. 2005).

CONTRIBUTORY NEGLIGENCE

NC
 
North Carolina, along with Virginia, is one of four remaining states or jurisdictions that follow the rule that contributory negligence is a complete bar to recovery by the plaintiff, burden of proof on defendant to prove by the greater weight of the evidence.  The doctrine was judicially established in North Carolina.  
 
VA
 
The contributory negligence standard which bars a plaintiff's recovery, if proven by defendant by the greater weight of the evidence, is a judicially created doctrine in Virginia.  "VIRGINIA SHOULD ABOLISH THE ARCHAIC TORT DEFENSE OF CONTRIBUTORY NEGLIGENCE AND ADOPT A COMPARATIVE NEGLIGENCE DEFENSE IN ITS PLACE."  Swisher, 46 U. Rich. L. Rev. 359 (2011).  (Alabama, Maryland, North Carolina, Virginia, the District of Columbia recognize the doctrine of contributory negligence, originally adopted under the common law of England).  Swisher, at fn 8.  

JOINT & SEVERAL LIABLIITY

NC
 
North Carolina imposes joint and several liability on joint tortfeasors. Young v. Baltimore & Ohio Railroad, 266 N.C. 458, 465, 146 S.E.2d 441, 446 (1966); N.C. Gen. Stat. § 1B-1. Thus, any joint tortfeasor against whom judgment is entered is liable to the claimant for the entire amount of the judgment, regardless of the tortfeasor’s share of fault.
 
VA
 
Virginia imposes joint and several liability on joint tortfeasors. Va. Code Ann. § 8.01-443. Thus, any joint tortfeasor against whom a judgment is entered is liable to the plaintiff for the entire judgment, regardless of the tortfeasor’s degree of fault.
 

DELAYED SERVICE OF PROCESS

NC
 
In North Carolina a summons issued with a complaint has a termination date within 30 days.  A new summons must be issued (renewed) to avoid the possibility of dismissal.  The process of “renewing” a summons (alias and pluries summons) in NC involves many nuances beyond this summary, but the paramount point is that the tolling of the statute of limitations in N.C. is jeopardized if a valid summons is not served on at least one defendant, despite the prior filing of the Complaint.
 
VA
 
Virginia permits a suit to be filed but not be served on any defendant for 1 year.  § 8.01-275.1. This fosters potential settlement of actions, but a defendant must be served within 1 year of the filing of the complaint or the action may be dismissed.  However, if the plaintiff properly nonsuits the action under provisions of the Virginia nonsuit act, and if the action falls under Virginia state law (and not a federal statute setting forth its own statute of limitations) the plaintiff may re file the action within 6 months using the Virginia nonsuit action 6 month tolling provision.  See Va. Code § 8.01-380.  Thus, in Virginia no summons and service or process need be prepared on the filing of a complaint for up to 1 year, separate from Virginia’s nonsuit provisions.

DISMISSAL/DISCONTINUANCE/NONSUIT

NC
 
Dismissal – The rules of civil procedure in North Carolina allow for the extension of any state statute of limitations for 1 year from the date of a dismissal without prejudice, so long as the initial action was not already barred by the same or a separate statute of limitations.  N.C. Gen. Stat. § 1A-1, Rule 41(a)(1).  There is no requirement that a defendant consent to the dismissal prior to filing, however case expenses allowable under N.C. law may be obtained by a defendant after dismissal if the same cause of action is re-filed.  Id.
 
VA
 
Nonsuit – Virginia does allow dismissal without prejudice but Virginia has a more advantageous nonsuit with statute of limitation tolling advantages.  At any time before a motion to strike the evidence has been sustained or before the jury retires from the bar or before an action has been submitted to a court for decision, a plaintiff may take a nonsuit without any right of the defendant to consent.  One nonsuit may be taken for a cause of action against the same party as a matter of right although a court may allow additional nonsuits upon reasonable notice to parties not represented, or to counsel.  A party must notify a court of any prior nonsuits in a proposed order of nonsuit presented to the court.  If nonsuit is taken within 7 days of trial or during trial, the court may in its discretion assess reasonable witness fees and travel costs of expert witnesses scheduled to appear at trial, actually incurred by the opposing party, if by reason of the failure to give notice at least 7 days prior to trial.  Va. Code § 8.01-380.  
 
The plaintiff may recommence a nonsuit action within 6 months from the date of the order of nonsuit, or within the original period of limitation, irrespective of whether the original action was in a federal or state court.  Va. Code § 8.01-229(E)(3).  

DISCOVERY RULE

NC
 
A. In wrongful death actions, the action normally accrues at date of death.  N.C. Gen. Stat. § 1-53(4).
 
B. In personal injury cases, the cause of action accrues on the date the damage or injury becomes apparent, or ought reasonably to have become apparent to the claimant.  N.C. Gen. Stat. § 1-52(16).  
 
C. In medical malpractice actions--see the separate medical malpractice special rule discussions.  
 
VA
 
A. The discovery rule generally does not apply in personal injury actions, as actions accrue on date of injury.  Va. Code Sec. 8.01-230. Fraud, concealment, and various exceptions exist.
 
B. Some special rules apply in medical malpractice claims.  See medical malpractice special rules. 
 
C. Generally, the wrongful death statute of limitations runs from the death of the decedent. Va. Code sec 8.01-244. 

UNINSURED/UNDERINSURED MOTORIST CLAIMS

NC
 
North Carolina is an "offset" state with regard to how it computes undersinsured motorist coverage that may apply in excess of liability coverage or coverages.  As of 2016, the minimum bodily injury and UM limits are $30,000.00.
 
UM/UIM arbitration – North Carolina has a unique scheme that sets forth a statutory basis available to (only) the plaintiff to pursue normal injury litigation involving underinsured motorist coverage, or by statute, a plaintiff may instead invoke arbitration, involving a three-judge panel of arbitrators to decide any underinsured motorist claim.  N.C.G.S. sec 20-279.21.  Each side selects one arbitrator, and the two arbitrators select the third if there is not an agreement to the third arbitrator. A UM/UIM carrier, to retain subrogation rights, must tender the policy limit of the underlying liability carrier upon written notice from Plaintiff, or the carrier risks waiver of subrogation. 
 
North Carolina is a “contact” UM state for hit and run claims, meaning there must be a collision between vehicles, and the claim must be corroborated.  
 
Inter-policy stacking of UM/UIM generally applies to nonfleet private passenger motor vehicles. N.C.G.S. sec 20-279.21 (b)(3) and (4).
 
VA
 
Virginia is an "offset" state with regard to how it computes undersinsured motorist coverage that may apply in excess of liability coverage or coverages.  As of 2016, the minimum auto policy limits are $25,000.00 with equivalent UM limits.
 
Generally, Virginia allows inter-policy stacking between separate policies that have UM/UIM coverages, but normally bars intra-policy stacking if policy language forbids such stacking. 
 
Virginia is a “no contact” requirement state, but the claim must be corroborated. Accordingly, physical contact with the John Doe “hit and run” vehicle is not required to maintain a personal injury hit and run UM/UIM suit.  Va. Code § 38.2- 2206. John Doe v. Brown, 203 Va. 508, 516, 125 S.E.2d 159, 165 (1962) (construing the predecessor UM statute, Code § 38.1-381(e)).  If the policy is written in Virginia to a resident, the VA UM law applies in Virginia’s courts, even if the collision occurs in a neighboring state with contrary UM contact requirements. See Brown, above.
 
UM/UIM carriers are served with the personal injury Complaint, but are not a named party, and UM carrier attorneys have the right to participate in discovery and the right to appear at trial without the jury being advised that they are representing a UM/UIM carrier.

WORKERS' COMPENSATION EXCLUSIVE REMEDY

NC
 
Like most states, NC has a workers' compensation comprehensive statute barring or making it the exclusive remedy for on-the-job injuries.  N.C. Gen. Stat. §§ 97-1—97-200.  Primary jurisdiction is with the North Carolina Industrial Commission.  N.C. Gen Stat. § 97-91.
 
Exceptions to exclusive remedy – A narrow exception to the exclusive remedy is when the employer's conduct is intentional and substantially certain to the cause the injury or death (called a "Woodson" claim).  Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (N.C., 1991.
 
N.C.G.S. 97-10.2 sets forth a statutory scheme for having a judge determine the amount of  the workers compensation lien, including various reductions.  The lien may be eliminated or reduced on various grounds, for example, if the employer’s own negligence was a contributing factor in the accidental injury.
 
VA
 
In Virginia the employee's sole and exclusive remedy for an injury or death arising on the job is under the Virginia Workers' Compensation Act.  Va. Code Ann. § 65.2-100 et seq.
 
Injuries that arise from contractors or agents on a job site particularly including subcontractors and the general contractor, are considered the statutory employer of the employee and such third party actions are barred.  A third-party action is only permitted against a stranger to the trade, occupation or business of his employer.  Conlin v. Turner's Express, Inc., 229 Va. 557, 331 S.E. 2d 453 (1985).  

PUNITIVE DAMAGES

NC
 
Punitive damages have been a subject of limitations since 1996.  N.C. Gen. Stat. Chapter 1D.  In personal injury actions they must be proved by clear and convincing evidence of actual fraud, malice or willful or wanton conduct related to the injury upon a showing first of compensatory damages.  N.C. Gen. Stat. § 1D-15(a)-(b) & 1D-5(4).  The conduct must be more than gross negligence.  N.C. Gen. Stat. § 1D-5(7).  The punitive damages claim must be specifically pled in detail in the complaint or in a supplemental pleading.  
 
Award limited to three times compensatory damages or $250,000.00.  N.C. Gen. Stat. § 1D-25(b)-(c).  Note: an exception for driving-while-impaired cases exists.  
 
A separate trial on punitive damages can be required on defendant's motion.  N.C. Gen. Stat. § 1D-30.  
 
VA
 
Common-law punitive damages are said to be disfavored by Virginia courts.  Owens-Corning Fiberglas Corp. v. Watson, 243 Va. 128, 144; 413 S.E. 2d 630, 639 (1992). Punitive damages created by statute are not.  Cain v. Lee, 772 S.E.2d 894, 897 (2015).
 
Statutory cap of $350,000.00 enacted in Virginia.  Va. Code § 8.01-38.1.  Claim must be specifically pled, and there must be underlying compensatory damages.  Requires willful and wanton negligence or malice.  Owens-Corning, citation above.
 
Special punitive damages in drunk-driving cases – Va. Code § 8.01-44.5 authorizes punitive damages in personal injury or death where defendant's conduct is willful or wanton or in disregard of rights of others.  BAC of .15 percent or more allows punitive damages claim, or if defendant knew or should have known operation of vehicle would be under alcohol impairment, and if intoxication was a proximate cause of injury or death of the plaintiff.  

WHICH RULES OF EVIDENCE APPLY?

NC
 
North Carolina has adopted the federal rules of evidence with specific North Carolina modifications. N.C.G.S. sec § 8C-1 et seq. The primary exceptions are stated at Rule 1101.
 
VA
 
Virginia recently adopted a codified rules of evidence that in large part follow the federal rules of evidence with notable Virginia-related modifications.  They are not found under a separate codified rules of evidence but instead found within the Virginia Supreme Court Rules beginning at Rule 2:101 et seq.

WHICH RULES OF CIVIL PROCEDURE APPLY?

NC
 
North Carolina has adopted the federal rules of civil procedure with modifications.  N.C.G.S. § 1A-1 et seq.
 
Summary judgment motions may be supported by depositions under the N.C. Rules of Civil Procedure.
 
VA
 
Virginia did not adopt the federal rules of civil procedure, instead follows the Virginia Supreme Court Rules.  Some align closely with federal rules of civil procedure, others do not, they are found within the “Virginia Supreme Court Rules.”
 
Summary judgment motions in Virginia may not be supported by depositions under the Virginia Supreme Court Rules, although depositions may be used to resist a summary judgment motion.

UNIFORM FOREIGN DEPOSITION ACT ADOPTION

NC
 
Adopted:  N.C. General Statutes 1-F1 et seq.
 
VA
 
Adopted:  Virginia Code Sections 8.01-412.8 et seq.; Rules of the Virginia Supreme Court 4:5.
 

PRE-JUDGMENT INTEREST

NC
 
In tort actions compensatory damages bear interest at the legal rate of interest from the date the action was commenced until the date the judgment is satisfied. N.C. Gen. Stat. §§ 24-1 and 24-5.
 
VA
 
Virginia allows pre-judgment interest from the date of an injury or death on the verdict form, if requested, with an interest rate set by the jury.  “In any…action at law or suit in equity, the final order, verdict of the jury, or if no jury the judgment or decree of the court, may provide for interest on any principal sum awarded, or any part thereof, and fix the period at which the interest shall commence.”  Va. Code sec. 8.01-382. Prejudgment interest may not exceed the judgment rate of interest in Virginia. See Va. Code Ann. § 6.1-330.54. 

JURY TRIAL AND JURISDICTION OF COURTS

NC
 
The Superior Court is the state trial court of general jurisdiction; civil cases involving an amount in controversy in excess of $25,000, and appeals from the District Court are tried (de novo review) in Superior Court. The District Court is a court of limited jurisdiction. It has original jurisdiction over civil claims involving less than $25,000.
 
Plaintiffs must state that over $25,000 is in controversy and do not state an amount sued for, however, defendants file a pleading requesting a statement of monetary relief which the Plaintiff must respond to within 30 days stating the ad damnum.
 
Superior court civil trials have 12 person juries (unless parties agree to lesser number), unanimous verdict required.  
 
North Carolina permits wide ranging voir dire during jury selection, jury voir dire is first conducted by Plaintiff, and then the jurors are “passed” to the defendant for its voir dire.  Strikes are declared in open court.
 
The N.C. Trial Court Administrators (TCA’s) are in charge of the Superior Court trial calendars and coordinate details of scheduling and trial matters.
 
In N.E. North Carolina superior courts the trial dates are not provided in Superior Court until the case matures to a final pretrial conference   In the remaining parts of North Carolina cases ripen by date and are placed on a court’s administrative calendar for “term dates” meaning a number of cases are set for trial on “term dates.”  Counsel must assure that they are on that court’s email distribution list or that court’s mailing list in order to receive the administrative calendars.  Cases that have matured may be set by agreement in coordination with the TCA in some jurisdictions.  Also, various courts permit a “preemptory setting” which is essentially a firm trial date accorded cases with out of state experts or other criteria set by that court’s TCA.
 
VA
 
The general district courts, analogous to small claims courts, have concurrent jurisdiction up to $25,000.00 with circuit courts, but circuit courts have exclusive jurisdiction of actions seeking over $25,000 in damages. Relaxed rules of procedure and evidence in general district courts.  Jury trials may be demanded in circuit court actions. 
 
Circuit court jury panel of 7 jurors, unanimous verdict required. Appeals from the general district court are tried by 5 jurors. 
 
Voir dire in Virginia is highly limited, Plaintiff and defendant strikes are taken simultaneously (P-1, D-1, P-2, D-2, etc) and not stated openly but rather confidentially until the Judge seats the remaining jurors comprising the panel.

RECOVERY OF CASE EXPENSES

NC
 
Set by N.C. Gen. Stat. Ann. Sec 6-20, and G.S. 7A-305(d): including:
 
(d)       The expenses set forth in this subsection are complete and exclusive and constitute a limit on the trial court's discretion to tax costs pursuant to G.S. 6-20:
(1)        Witness fees, as provided by law.
(2)        Jail fees, as provided by law.
(3)        Counsel fees, as provided by law.
(4)        Expense of service of process by certified mail and by publication.
(5)        Costs on appeal to the superior court, or to the appellate division, as the case may be, of the original transcript of testimony, if any, insofar as essential to the appeal.
(6)        Fees for personal service and civil process and other sheriff's fees, as provided by law. Fees for personal service by a private process server may be recoverable in an amount equal to the actual cost of such service or fifty dollars ($50.00), whichever is less, unless the court finds that due to difficulty of service a greater amount is appropriate.
(7)        Fees of mediators appointed by the court, mediators agreed upon by the parties, guardians ad litem, referees, receivers, commissioners, surveyors, arbitrators, appraisers, and other similar court appointees, as provided by law. The fee of such appointees shall include reasonable reimbursement for stenographic assistance, when necessary.
(8)        Fees of interpreters, when authorized and approved by the court.
(9)        Premiums for surety bonds for prosecution, as authorized by G.S. 1-109.
(10)      Reasonable and necessary expenses for stenographic and videographic assistance directly related to the taking of depositions and for the cost of deposition transcripts.
(11)      Reasonable and necessary fees of expert witnesses solely for actual time spent providing testimony at trial, deposition, or other proceedings.
(12)      The fee assessed pursuant to subdivision (2) of subsection (a) of this section upon assignment of a case to a special superior court judge as a complex business case.
 
VA
 
Virginia has very limited case expense recovery provisions. In Advanced Marine Enterprises, Inc. v. PRC Inc., 256 Va. 106, 501 S.E.2d 148 (1998), the Supreme Court interpreted the legislature’s inclusion of “costs” under other statutes to be limited only those “costs essential for the prosecution of the suit, such as filing fees or charges for service of process.” Costs under such statutes, however, did not include expert witness fees, express mail expenses, messengers, meals, computer research, photocopies, transcripts and other expenses incurred.  Essentially, Virginia allows the statutory witness fees, if paid to a witness, filing fees, and service of process fees, lodging, travel mileage, and food per diem, only at trial court level.

COLLATERAL SOURCE RULE GENERALLY

NC
 
North Carolina law prohibits the reduction of a claimant’s recovery by amounts received from a collateral source, such as insurance or government benefits. Cates v. Wilson, 321 N.C. 1, 5-6, 361 S.E.2d 734, 737 (1987). However, in actions commenced on or after October 1, 2011, evidence of past medical expenses is limited to the total amount actually paid to satisfy medical bills rather than the face amount of the bills. N.C.G.S. sec § 8C-1 , Rule 414; see also N.C. Gen. Stat. § 8-58.1.
 
VA
 
Virginia recognizes the collateral source rule, under which a claimant’s receipt of collateral payments does not reduce his recovery. See Acuar v. Letourneau, 260 Va. 180, 189-93, 531 S.E.2d 316, 320-23 (2000); Schickling v. Aspinall, 235 Va. 472, 369 S.E.2d 172 (1988).  This is statutory for lost income, Va. Code Ann. § 8.01-35.

MEDIATION

NC
 
North Carolina requires mandatory mediation in superior court civil cases.  Within 160 days from the appearance by a defendant, and order of referral to mediation occurs.  If the parties  do not agree to a particular certified mediator and notify the trial court administrator, the TCA will assign a certified mediator.
 
VA
 
Virginia has no mandatory mediation in circuit court civil cases, mediation is voluntary.  A number of circuit court do mandate “voluntary” settlement conferences with retired judge mediators.        
 

Comparison of Personal Injury/Tort Laws in Virginia and North Carolina

This comprehensive comparison of Virginia and North Carolina personal injury/tort laws is meant for those with injuries or their family members as well as lawyers practicing in both Virginia and North Carolina, or out-of-state practitioners. The laws described in this personal injury summary are applicable throughout Virginia no matter where the injury occurred including Abingdon, Alexandria, Arlington, Big Stone Gap, Blacksburg, Charlottesville, Chesapeake, Danville, Emporia, Falls Church, Fairfax, Franklin, Harrisonburg, Isle of Wight, Lynchburg, Manassas, Martinsville, Newport News, Petersburg, Radford, Richmond, Roanoke, Williamsburg, Winchester, and so forth. These laws also apply to the Eastern Shore of Virginia including Accomack, Bloxom, Cape Charles, Eastville, Exmore, Greenbackville, Machipongo, Mappsville, Melfa, Nassawadox, Onley, Tangier, Temperanceville, Wachapreague, Wallops Island, etc.
 
These laws also apply throughout North Carolina including Ahoskie, Camden, Charlotte, Corolla, Currituck, Dare, Durham,  Elizabeth City, Edenton, Greensboro, Greenville, Goldsboro, Halifax, Havelock, Kinston, Kitty Hawk, New Bern, Northampton, Pasquotank, Perquimans, Raleigh, Roanoke Rapids, Rocky Mount, Tarboro, Wilson, and Winston-Salem. We also serve the the Outer Banks towns of Kill Devil Hills, Manteo, Nags Head, Corolla and so on.
Richard N. Shapiro
Personal Injury & Wrongful Death Lawyer Serving Va Beach, Norfolk, Chesapeake & all of Virginia
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