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Shapiro & Appleton

Summary of Virginia Personal Injury/Tort Law

If you or a loved one suffered a personal injury in any city in Virginia such as Norfolk, Virginia Beach, Portsmouth, Chesapeake, Suffolk, Hampton, Richmond, Roanoke, Fairfax, etc. this guide provides a quick summary of key Virginia personal injury / tort laws (note that this is a guide, and is not specifically legal advice for any particular Virginia personal injury case or wrongful death claim). This comprehensive summary of personal injury and wrongful death law in Virginia can assist persons with potential Virginia injury cases, as well in state or out-of-state attorneys who may require answers with regard to Virginia personal injury law.

During 2016, the outgoing president of the Virginia State Bar invited me 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 some 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  Virginia personal injury law handy and of some value to you whether you are an out-of-state attorney looking for information, or a person in need of information.

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 involved in the claim.

We created this Virginia personal injury law summary because many clients, and fellow attorneys, often ask:
This Virginia tort law summary is an informational resource. If you have questions about how Virginia 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 a Personal Injury Claim in Virginia

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 a Wrongful Death Claim in Virginia

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.

Cap on Recoverable Damages (i.e. Money) in Personal Injury or Wrongful Death Claims in Virginia

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).

Who Can Recover Damages from a Wrongful Death Claim

If a judgment is entered in favor of the plaintiff in a wrongful death suit, the Virginia Wrongful Death Act sets forth classes of statutorily defined beneficiaries who could receive the damages awarded from a suit. Va. Code Ann. § 8.01-53(A)  establishes that the beneficiaries who will receive any monetary award will be determined at time of verdict entered by a jury or judgment. According to Virginia Code § 8.01-50 to 52, the recoverable damages from a wrongful death suit include:
  • Sorrow
  • Mental anguish
  • Solace, which can include society, companionship, comfort, guidance, kindly offices, and advice of decedent
  • Compensation for reasonably expected loss of income from the decedent
  • Services, protection, care and assistance provided by the decedent
  • Expenses for care, treatment, and hospitalization of the decedent as a result of the injury resulting in death
  • Reasonable funeral expenses
  • Punitive damages arising from willful or wanton conduct or recklessness evincing a conscious disregard for safety of others.  

Virginia Medical Malpractice Laws

  1. 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
  2. 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.
  3. 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
  4. 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).  

Virginia Product Liability Laws

If you or a loved one was seriously injured or died due to a defective product, a product liability action follows the same two year statute of limitations that applies broadly to personal injury and wrongful death claims.
 
Strict Liability – Virginia does not follow strict liability in tort for most product liability claims, with exceptions being ultra-hazardous 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

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 and Several Liability

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

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.

Taking a "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).  

Virginia Discovery Rule

  1. 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.
  2. Some special rules apply in medical malpractice claims.  See medical malpractice special rules. 
  3. Generally, the wrongful death statute of limitations runs from the death of the decedent. Va. Code sec 8.01-244.

Uninsured and Underinsured Motorist Claims in Virginia

Virginia is an "offset" state with regard to how it computes undersinsured motorist coverage (UM) 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 coverage, 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 - The Exclusive Remedy for Many Workplace Injuries in Virginia

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

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.  

Virginia Rules of Evidence

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.

Virginia Rules of Civil Procedure

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

Adopted:  Virginia Code Sections 8.01-412.8 et seq.; Rules of the Virginia Supreme Court 4:5.

Pre-Judgment Interest and Damage Awards

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. Va. Code Ann. § 6.1-330.54. 

Jurisdictions of Virginia Courts and Jury Trials

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.

Recovering Case Expenses for Virginia Personal Injury Attorneys

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.

Virginia Collateral Source Rule

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

Virginia has no mandatory mediation in Circuit Court civil cases. Mediation is voluntary.  Though, a number of Circuit Courts do mandate “voluntary” settlement conferences with retired judge mediators.        

Personal Injury/Tort Law Summary in Virginia
 
This summary of Virginia personal injury/tort law is meant for those with injuries or their family members as well as lawyers not only in Virginia but elsewhere. 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.
 
Richard N. Shapiro
Personal Injury & Wrongful Death Lawyer Serving Va Beach, Norfolk, Chesapeake & all of Virginia
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