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.
- What is the statute of limitations for personal injury in Virginia?
- What is the statute of limitations for wrongful death law in Virginia?
- Is there a cap on damages for personal injury or wrongful death claims in Virginia?
- Can pre-judgment interest be recovered in a Virginia lawsuit?
- What are the product liability laws in Virginia?
- Is Virginia a contributory negligence state?
- Which family member can recover damages from a Virginia wrongful death judgment?
- What are the special provisions for medical malpractice cases in Virginia such as damage caps, expert witness requirements, and what can be done is a doctor attempts to hide evidence of malpractice from a patient?
- What laws apply to workers compensation claims in Virginia?
- Does Virginia follow joint and several liability law?
- What court should I file my Virginia civil lawsuit in - general district court or circuit court?
- What happens if service of process of a Virginia civil lawsuit is delayed?
- Can a nonsuit be taken in Virginia?
- What is the Virginia Discovery Rule?
- Where can I find the Virginia Rules of Evidence?
- Where can I find the Virginia Rules of Civil Procedure?
- What are the damages that can be recovered in a Virginia wrongful death action?
- When can punitive damages be recovered in a Virginia civil lawsuit?
- How does an injured Virginia driver recover through their uninsured or underinsured motorist coverage?
- Does Virginia follow the Collateral Source rule?
- Does Virginia require mediation before going to trial?
- What is the Uniform Foreign Deposition Act and does Virginia adhere to it?
- Can a Virginia personal injury lawyer recover their case expenses?
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).
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.
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).
- 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.
- 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
- 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.
- 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
- 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).
- 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.
- Some special rules apply in medical malpractice claims. See medical malpractice special rules.
- Generally, the wrongful death statute of limitations runs from the death of the decedent. Va. Code sec 8.01-244.
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.
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 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 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.
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 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.