Will Spear Stick?

Washington Airport AuthorityIn the months following Judge Chamblin’s August 2009 ruling in Spear v. Metropolitan Washington Airports Authority, defense counsel across the Commonwealth jumped on the Spear bandwagon, arguing as the Court ruled in Spear that changes in suits re-filed by a plaintiff after taking a voluntary nonsuit, such as to the ad damnum, create a different action and the plaintiff accordingly loses the benefit of the tolling of the statute of limitations provided by Va. Code § 8.01-229(E)(3). But so far, no other court has followed Spear. Now, the Supreme Court of Virginia is poised on February 9 to review the petition for appeal in Spear. The question on every defense counsel’s mind is can this decision possibly hold up?

In Spear, plaintiff claimed she was injured in April 2005 at Washington Dulles International Airport while being transported by wheelchair. Plaintiff filed suit in April 2007, within days of the applicable two year statute of limitations, but took a voluntary nonsuit in October 2008. When plaintiff re-filed her action in March 2009, with an increased ad damnum from $350,000 to $500,000, defense counsel argued the claim was time-barred because the change in the ad damnum created a different action. Judge Chamblin agreed.

Adopting a strict reading of Dalloul v. Agbey, 255 Va. 511 (1998), Judge Chamblin held that the “action” that was nonsuited for purposes of § 8.01-229(E)(3) is the action that was pending at the time the nonsuit order was entered and it is that “action that must be recommenced within the six-month period in order for the tolling provision to apply.” According to the court, because a plaintiff’s recovery is limited by its ad damnum (but see post above on legislation considered by the General Assembly that would have dramatically changed this rule) and because Va. Code § 8.01-379.1 requires disclosure of plaintiff’s damages to the jury, “the amount sued for is just as much a component of an action as the operative facts alleged and the claims made by a plaintiff.” For these reasons, Judge Chamblin ruled that plaintiff’s March 2009 complaint was not the same action as the April 2007 complaint and the claims were therefore not tolled by Va. Code § 8.01-229. The new complaint was dismissed as time-barred.

While the Spear court ostensibly considered the meaning of “action” for purposes of Va. Code § 8.01-380, it overlooked a substantial body of Virginia Supreme Court precedent defining and discussing the term “cause of action” in other related contexts. Virtually every other court reviewing similar nonsuit tolling issues under § 8.01-229(E)(3) has done just this. (See, e.g., Vaughan v. The First Liberty Ins. Corp., Civil Action No. 3:09cv364 (E.D. Va. Nov. 13, 2009); O’Hearn v. Mawyer, Case No. CL09-00442 (Rockingham Cty. Jan. 7, 2010) (collecting cases)). Had the Spear court also done so, the result may have been far different.

The term “cause of action” has been considered repeatedly by the Supreme Court of Virginia in the closely analogous context of relation back of amendments (that is, whether an amended pleading relates back to the original filing date for purposes of statute of limitations), as subsequently codified at Va. Code § 8.01-6.1. In this setting, it is clear the Court views a “cause of action” broadly to encompass “a set of operative facts which, under the substantive law, may give rise to a right of action.” (See, e.g., Roller v. Basic Constr. Co., 238 Va. 321 (1989)). It is not any one single legal theory or basis of recovery. Where an amended pleading “only varie[s] the mode of demanding the same thing – that is, damages done the same property by the same causes”, then it does not set forth a new cause of action. (Vines v. Branch, 244 Va. 185 (1992), quoting, New River Min. Co. v. Painter, 100 Va. 507 (1902)).

Likewise, while the goal of res judicata is to preclude, rather than preserve all claims that could or should have been litigated, the definition of “cause of action” still remains the same. Rule 1:6 of the Rules of the Supreme Court of Virginia again defines “cause of action” broadly to be a “claim for relief arising from identified conduct, a transaction, or an occurrence”, regardless of the legal theory asserted or the legal elements or evidence necessary. A “cause of action” is clearly intended by the Supreme Court to be an all-encompassing concept.

This expansive definition of “cause of action”, particularly when coupled with the additional rule that “tolling statute[s] . . . ‘are highly remedial and should be liberally construed in furtherance of their purposes, and are not to be frittered away by any narrow construction,’” (Vaughan v. The First Liberty Ins. Corp., quoting, Baker v. Zirkle, 226 Va. 7 (1983)), leaves only one possible conclusion. Spear should have been decided the other way. It is difficult to conceive how the mere demand for $150,000 in additional compensatory damages would not satisfy the test for the same “cause of action” within the meaning of §§ 8.01-229(E)(3) and 380.

To be sure, there is authority for the proposition that the recovery sought is material to the analysis of “cause of action”, just as Judge Chamblin noted. For example, in Vines, the Court held that “[w]here an amendment . . . makes a new or different demand not introduced in the original [complaint] . . .. the amended action becomes the equivalent of a different suit and the statute continues to run until the amendment is filed.” Under this caselaw, to the extent the increase in damages sought by plaintiff in Spear in the amended pleading actually arose out of some additional category of damages not previously requested, then perhaps the result in Spear is correct. However, there is nothing in the Spear opinion which would support this conclusion.

Will Spear Stick

The ultimate irony is that had plaintiff’s counsel in Spear anticipated this novel nonsuit challenge, it could have easily re-filed a complaint that was identical to the April 2007 version, and then simply moved to increase the ad damnum thereafter. As Judge Chamblin expressly acknowledged, such motions are routinely made “as they must be”, and granted by the court, where plaintiff believes and demonstrates damages may exceed the amount originally pled.

From the defense perspective, the Spear rule is almost too good to be true since nearly every case re-filed after a nonsuit contains some change in allegations or claims. Pre-Spear, it could be argued that it was a breach of the standard of care for plaintiff’s counsel to not tweak some aspect of the complaint to reflect information acquired during or subsequent to the litigation of the first complaint. But, by all indications, plaintiff’s counsel should not be hasty in adjusting nonsuit re-filing practices since Spear may be short-lived.

Of course, if the Supreme Court of Virginia declines review of Spear, the state of the law of nonsuits will be left in doubt and the circuit courts of this Commonwealth can be absolutely assured of one thing: they will routinely see Spear-based pleas in bar. Indeed, defense counsel may now well be required to file a Spear like challenge in order to satisfy its standard of care.

Certainty is needed for both sides of the bar on this issue.

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