Opinion
44046 Record No. 781636.
January 16, 1981
Present: All the Justices.
Two year statute of limitations for personal injuries not tolled by Code Sec. 8.01-229(E)(3) when action voluntarily nonsuited after 1 October 1977, the cause of action arising and pending before 1 October 1977; action is time barred under Code Sec. 8-24 [now in part with modifications Code Sec. 8.01-243(A)].
Limitations of Actions — Statutory Construction — Suspension or Tolling of Statute of Limitations [Code Sec. 8.01-229(E)(3) (voluntary nonsuit)] — Grants Extended Time During which Claims Arising on or after 1 October 1977 may be Prosecuted — Claim Barred by Two Year Limitation Period [Code Sec. 8-24 (now in Part with modifications Code Sec. 8.01-243(A))].
Plaintiff brought his action for personal injuries which arose in September 1973 on 23 August 1974 against Holcombe and another. On 9 March 1978 he took a voluntary nonsuit and on 17 March filed a second motion against Holcombe alone. Defendant's plea of the two year statute of limitations [Code Sec. 8-24 (now in part with modifications Code Sec. 8.01-243(A))] was sustained by the lower court. The question on appeal is whether Code Sec. 8.01-229(E)(3) tolls the statute of limitations.
The General Assembly intended by Code Sec. 8.01-256 to maintain the status quo for actions pending on 1 October 1977 and as to causes of action arising on or before that date. Thus Code Sec. 8.01-229(E)(3) grants an extended time during which a claim arising after 1 October 1977 may be prosecuted after a voluntary nonsuit. Here plaintiff's cause of action arose in September 1973. His action was brought on 23 August 1974 and was voluntarily nonsuited on 9 March 1978. The action is thus barred by the two year limitation in Code Sec. 8-24 (now in part with modifications Code Sec. 8.01-243(A). Strickland v. Simpkins, 221 Va. 730, 273 S.E.2d 542 (1981) followed.
Appeal from a judgment of the Circuit Court of the City of Chesapeake. Hon. Jerry G. Bray, Jr., judge presiding.
Affirmed.
Andrew Michael Sacks (Israel Steingold; Steingold Steingold; Steingold Chovitz, on briefs), for appellant.
George H. Gray (Outland, Gray, O'Keefe Hubbard, on brief), for appellee.
This case involves the applicability of the tolling provision of Code Sec. 8.01-229(E)(3), and our decision is controlled by Strickland v. Simpkins, 221 Va. 730, 273 S.E.2d 539 (1981). See also Fidelity and Deposit Co. v. Celotex, 221 Va. 698, 273 S.E.2d 542 (1981).
On August 23, 1974, Elmer Lee Wood filed his motion for judgment, seeking to recover from Debra Lee Holcombe and another damages for personal injuries suffered in an automobile accident that occurred in September 1973. On March 9, 1978, Wood took a voluntary nonsuit and eight days thereafter, on March 17, 1978, filed his second motion seeking to recover against Holcombe alone for the damages he suffered in the accident. Defendant's plea of the statute of limitations was sustained by the lower court, and this appeal ensued.
The parties agree that the two-year limitation period is applicable, Code Sec. 8-24, now in part with modifications Sec. 8.01-243(A). Wood's nonsuit on March 9, 1978, and the filing of his motion for judgment on March 17, 1978, occurred more than two years after the date of the accident. Wood relies upon Virginia Code Sec. 8.01-229(E)(3), which became effective on October 1, 1977. He contends the statute is remedial and should be liberally construed. It provided:
If a plaintiff suffers a voluntary nonsuit as prescribed in Sec. 8.01-380 and shall recommence his action within six months, the statute of limitation with respect to such action shall be tolled by the commencement of the nonsuited action.
In 1978 the General Assembly amended Code Sec. 8.01-229(E)(3) to read as follows:
If a plaintiff suffers a voluntary nonsuit as prescribed in Sec. 8.01-380 the statute of limitation with respect to such action shall be tolled by the commencement of the nonsuited action, and the plaintiff may recommence his action within six months from the date he suffers such nonsuit, or within the original period of limitation, whichever period is longer.
1978 Va. Acts, ch. 65, p. 100.
Wood therefore argues that having recommenced his action within six months from March 9, 1978, he thereby became entitled to have tolled the period during which his first action was pending, i.e., the period from August 23, 1974, to March 9, 1978. We disagree.
For reasons set forth in Strickland v. Simpkins, supra, we hold that plaintiff's action which arose and was pending prior to October 1, 1977, is governed by the two-year limitation period and the tolling provision of Code Sec. 8.01-229(E)(3) is not applicable.
Accordingly, the judgment of the lower court is
Affirmed.