A Carluzzo Rochkind & Smith note: Following is an excellent article by Virginia Lawyers Weekly. We did not handle this case, but it brings up important points your personal injury lawyers should be familiar with. For more than 30 years our personal injury lawyers in Manassas have helped clients with such matters in Prince William County, Fairfax County, Woodbridge, and throughout Northern Virginia. If you have any questions or would like to schedule an appointment, please contact our law firm at (703) 361-0776.
‘Unamendable’: Expired filing deadline bars personal injury claim
By Virginia Lawyers Weekly – 11/28/2023
A trial judge made no error dismissing a plaintiff’s refiled personal injury action against a deceased defendant who was represented by an insurer acting in her name, the Court of Appeals of Virginia ruled.
Judge Vernida R. Chaney said the trial court correctly held that the statute of limitations barred the plaintiff’s claim.
“[The] failure to amend the originally filed action to substitute a qualified personal representative for the named deceased party-defendant within the time allowed by Code § 8.01-229(B)(2)(b) rendered the originally filed action unamendable, and, therefore, a nullity with no legal effect,” she explained wrote.
Chaney’s 19-page opinion in Clutteur v. Rosier (VLW 023-7-429) was joined by Judges Robert J. Humphreys and Mary Grace O’Brien.
Background
In January 2017, Debra Clutteur and her husband were allegedly injured in a highway crash when a car operated by Nancy Rosier collided with them. Rosier died in September 2017.
Clutteur filed a complaint against Rosier in December 2018, which was within the two-year statute of limitations for personal injury actions under Va. Code § 8.01-243(A).
However, as Rosier was deceased, she was not a proper party-defendant. Erie Insurance Property & Casualty Company filed an answer to Clutteur’s complaint in August 2019, acting in Rosier’s name.
The defendant’s motion to file an amended answer was granted in March 2021, after which the defendant filed a motion for summary judgment. In the motion, the defendant argued Clutteur’s action “was a nullity because the time provided for amending Clutteur’s complaint to substitute a personal representative for Rosier … had expired.”
Clutteur moved to amend her complaint to substitute Rosier’s personal representative for Rosier and was later granted a nonsuit. She then recommenced her action and again moved to substitute.
The insurance company acting in Rosier’s name filed a plea-in-bar, contending that Clutteur’s original complaint was against a deceased defendant and a legal nullity; as such, the new action was time-barred.
The circuit court granted the defendant’s plea-in-bar, dismissing Clutteur’s claim with prejudice.
This appeal followed.
Legal nullity
“Resolving this appeal requires this Court to determine the tolling effect, if any, of an action commenced against a decedent and nonsuited after the time for substituting a personal representative for the decedent under Code § 8.01-229(B)(2)(b) has expired,” Chaney noted.
Since the code “only suspends the rule that an action against a decedent is a legal nullity to provide a limited opportunity to substitute the decedent’s personal representative for the decedent, it follows that a failure to timely make the substitution renders the action a legal nullity,” the judge pointed out.
Clutteur argued that the only consequence of failing to timely substitute in the original claim was that she had restart the substitution period by taking a nonsuit and recommencing the action.
Chaney disagreed.
“By providing a means for converting an improperly filed action against a decedent into a properly filed action against a personal representative, the General Assembly recognized that an action against a decedent is not properly filed,” Chaney wrote.
The judge added that the legislature “is presumed to have been aware” of Supreme Court of Virginia precedent that held a suit naming a decedent as a party-defendant is a legal nullity.
Furthermore, the original cause of action was found to be a legal nullity because Clutteur did not name a personal representative within the time provided by Virginia law, in this case two years from the date of the cause of action or the filing of papers, whichever comes later.
The latter of the two deadlines was initially December 2020, two years after the action was filed. However, due to tolling provisions stemming from the COVID-19 pandemic, the deadline was stretched to April 2021. Chaney wrote that “it is undisputed that Clutteur did not amend her originally filed action to substitute a personal representative for Rosier” by deadline.
As such, her suit became an unamendable suit against a deceased person and therefore a legal nullity.
Remaining claims
Clutteur also contended that Va. Code § 8.01-229(E)(3)’s tolling provision “preserves the tolling effect of the commencement date of her originally filed and nonsuited action.”
Chaney determined that Clutteur’s action was not entitled to the statute’s tolling.
“Because Clutteur’s originally filed action against the deceased Rosier was not amendable to substitute Rosier’s personal representative for Rosier after the time for making the amendment under Code § 8.01-229(B)(2)(b) expired, that action was a nullity, not a valid pending proceeding,” Chaney wrote.
Without the benefit of tolling, the filing of the second complaint in August 2021 is time-barred.
Chaney wrote that Clutteur had until Jan. 21, 2021, to timely file suit against Rosier’s personal representative. The second complaint was filed in August 2021, months after the deadline.
“Rosier died on September 17, 2017, before the action commenced by the filing of the second complaint and … before the expiration of the applicable two-year limitations period…,” Chaney wrote, adding that Virginia code provides for the time for commencing an action against a personal representative of a defendant who died before the expiration of applicable limitations.
Here, a personal representative is deemed to have qualified two years after Rosier’s death and, under the relevant code, Clutteur had one year to commence suit. The COVID-19 tolling extended that deadline an additional 126 days, to Jan. 21, 2021.
“Clutteur’s suit, filed on August 17, 2021, is time-barred under Code § 8.01-229(B)(2)(a) because it was filed after the expiration of the applicable limitations period on January 2, 2019, and after January 21, 2021,” Chaney wrote. “Thus, this Court affirms the circuit court’s order granting the plea-in-bar and dismissing Clutteur’s action with prejudice.”
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