Summary
holding that section 8.01-248 governs claims for wrongful termination in retaliation for filing a worker's compensation claim, pursuant to Va. Code Ann. § 65.2-308
Summary of this case from Sutter v. First Union Nat. Bank of Vir.Opinion
50412 Record No. 941414
Decided: June 9, 1995
Present: All the Justices
The plaintiff's suit for retaliatory discharge from employment is not a suit for a positive, physical or mental hurt and he advances no other applicable limitation period, therefore his cause of action is subject to the limitation period established in Code Sec. 8.01-248 and the judgment dismissing his action as untimely filed is affirmed.
Practice and Procedure — Limitation of Actions — Statutes of Limitation — Wrongful Termination — Retaliatory Discharge — Workers' Compensation Claim
The plaintiff filed a motion for judgment against his former employer alleging wrongful termination of his employment in retaliation for his filing a workers' compensation claim. The trial court held that the cause of action was barred because it was not filed within one year of his termination as required by the limitation period set out in Code Sec. 8.01-248 and dismissed the action. The plaintiff appeals.
1. A personal action is defined as an action wherein a judgment for money is sought, whether for damages to person or property, and the plaintiff's suit for money damages arising from wrongful termination is a personal action subject to the limitation period of Code Sec. 8.01-248 unless another limitation period is prescribed.
2. With the exception of actions based on federally created rights, Code Sec. 8.01-243(A) has not been applied to a cause of action which does not involve either mental or physical injury to the body.
3. In applying Code Sec. 8.01-234(A), the concept of injury is interpreted in the same manner as it is to determine when a cause of action for personal injuries accrues: a positive, physical or mental hurt to the claimant.
4. This suit for wrongful termination is not a suit for positive, physical or mental hurt and is subject to the limitation period established in Code Sec. 8.01-24
Appeal from a judgment of the Circuit Court of the City of Richmond. Hon. Theodore J. Markow, judge presiding.
Affirmed.
Robert P. Geary for appellant.
Dean T. Buckius (Thomas M. Lucas; Vandeventer, Black, Meredith Martin, on brief), for appellee.
Emmett L. Purcell, Jr., filed a motion for judgment against his former employer, Tidewater Construction Corporation, on February 3, 1994, pursuant to Code Sec. 65.2-308. Purcell alleged that Tidewater wrongfully terminated his employment in retaliation for his filing a workers' compensation claim. Tidewater responded that Purcell's cause of action was barred because it was not filed within one year of his termination as required by the limitation period set out in Code Sec. 8.01-248. Purcell maintained that his cause of action was timely filed because it was an action for personal injury and, therefore, subject to the two-year limitation period of Code Sec. 8.01-243(A). The trial court held that Code Sec. 8.01-248 applied to Purcell's cause of action and dismissed the action as untimely filed. We awarded Purcell an appeal, and we will affirm the judgment of the trial court.
Tidewater filed a demurrer which the trial court treated as a plea in bar.
Code Sec. 8.01-248 states:
Every personal action for which no limitation is otherwise prescribed, shall be brought within one year after the right to bring such action has accrued.
Effective July 1, 1995, the limitation period will be two years rather than one year. Acts 1995, ch. 9.
A "personal action," for purposes of Title 8.01, Chapter 4, Limitations of Actions, is defined as "an action wherein a judgment for money is sought, whether for damages to person or property." Code Sec. 8.01-228. Purcell's suit for money damages arising from wrongful termination, therefore, is by definition a personal action subject to the limitation period of Code Sec. 8.01-248 unless another limitation period is prescribed.
In attempting to avoid the one-year period imposed by Code Sec. 8.01-248, Purcell asserts that Code Sec. 8.01-243(A) prescribes the applicable limitation period. As relevant to our inquiry, Code Sec. 8.01-243 provides:
A. [E]very action for personal injuries, whatever the theory of recovery . . . shall be brought within two years after the cause of action accrues.
B. Every action for injury to property . . . shall be brought within five years after the cause of action accrues.
Purcell argues that wrongful termination is not an injury to property and, therefore, is a personal injury action governed by the two-year limitation period of subsection A. This construction, however, divides all personal actions into either injuries to persons or to property governed by Code Sec. 8.01-243, thereby rendering Code Sec. 8.01-248 meaningless or unnecessary.
[2-3] More importantly, with the exception of actions based on federally created rights, we have not applied Code Sec. 8.01-243(A) to a cause of action which did not involve either mental or physical injury to the body. For example, in personal actions such as fraud and defamation, which do not involve such injury, we have applied Code Sec. 8.01-248. See, e.g., Pigott v. Moran, 231 Va. 76, 81, 341 S.E.2d 179, 182 (1986) (fraud is "financial damage personal to the individual" covered by Code Sec. 8.01-248); Watt v. McKelvie, 219 Va. 645, 248 S.E.2d 826 (1978) (defamation). Our recent case of Glascock v. Laserna, 247 Va. 108, 439 S.E.2d 380 (1994), is no exception. In that case, we held that the cause of action asserted by the parents, wrongful birth, like the wrongful birth claim asserted in Naccash v. Burger, 223 Va. 406, 416, 290 S.E.2d 825, 831 (1982), was a direct emotional injury to the parents governed by the limitation period of Code Sec. 8.01-243(A). Glascock, 247 Va. at 111-12, 439 S.E.2d at 382. Thus, in applying Code Sec. 8.01-243(A), we interpret "injury" in the same manner as that word is construed to determine when a cause of action for personal injuries accrues: "[a] positive, physical or mental hurt to the claimant." Locke v. Johns-Manville Corp., 221 Va. 951, 957, 275 S.E.2d 900, 904 (1981).
The United States Supreme Court, for purposes of consistency, has determined that actions brought pursuant to 42 U.S.C. §§ 1983 and 1988 are, as a matter of federal law, actions for personal injury and, therefore, subject to a state's limitation period for personal injury. Goodman v. Lukens Steel Co., 482 U.S. 656, 661 (1987); Wilson v. Garcia, 471 U.S. 261, 275-76 (1985). This application of the limitation period does not affect, and is unaffected by, our interpretation of whether a cause of action is a personal action for personal injuries.
In 1987, the General Assembly specifically provided that fraud was subject to the two-year limitation period. Acts 1987, ch. 679.
Purcell's suit for wrongful termination is not a suit for a "positive, physical or mental hurt" and he advances no other applicable limitation period. Therefore, Purcell's cause of action for wrongful termination is subject to the one-year limitation period established in Code Sec. 8.01-248.
Accordingly, we will affirm the judgment of the trial court dismissing Purcell's action for wrongful termination as untimely filed.
Affirmed.