4.3 Parties

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

4.3 PARTIES

4.301 Plaintiff.

A. No class actions. ¹⁹⁰

B. Ex contractu.

1. Third-Party Beneficiaries. Third-party beneficiaries may sue directly. ¹⁹¹

2. Assignees. Cause of action ex contractu is generally assignable. ¹⁹² But personal injury is not assignable. However, it can be assigned as soon as claim reduced to judgment. A cause of action cannot be divided by partial assignment to split the action and harass the defendant. ¹⁹³ But partial assignment without such harassment is enforceable. ¹⁹⁴ A contract can be assigned after breach. ¹⁹⁵ Where there is an assignment of a bond, note, etc., a defendant debtor may assert all discounts against original obligee or intermediate assignee before receiving notice of the assignment. ¹⁹⁶ But a defendant debtor may agree not to assert offsets against a bona fide purchaser-assignee other than "real defenses" that he or she may have against the obligee-assignor. ¹⁹⁷ A corporation that receives the assets of a partnership may be liable on debts arising out of these assets. ¹⁹⁸

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3. Bankruptcy. ¹⁹⁹ All legal and equitable claims of the debtor become property of the bankruptcy estate, and the trustee alone has standing to bring any such claim. ²⁰⁰

4. No Standing. One who is not a party. ²⁰¹ A plaintiff who lacks standing cannot substitute a new party plaintiff who would have standing to maintain an action. ²⁰²

5. Subcontractors. One subcontractor can sue another, even where the principal contract was not completed. ²⁰³

6. Survival of Cause of Action. All causes of action survive death or dissolution of the plaintiff. ²⁰⁴ A successor plaintiff must move for substitution of parties after "suggestion," or the action will be discontinued. ²⁰⁵

7. Proceedings Before the State Corporation Commission. ²⁰⁶ The complainant is the Commonwealth. The Division of Consumer Counsel in the Attorney General's Office represents interests of consumers. ²⁰⁷ The State Corporation Commission has the authority to appoint all necessary special and regular counsel. ²⁰⁸

C. Ex Delicto.

1. Assignees. There is a conceptual difference between assignment (by contract) and subrogation (by law). ²⁰⁹ A cause of action for

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damage to property is assignable. ²¹⁰ Purely personal actions are not assignable, for example, assault and battery, false imprisonment, malicious prosecution, defamation and personal injuries. ²¹¹ Va. Code § 8.01-26 does not prohibit any injured party or his or her estate from making a voluntary assignment of the proceeds or anticipated proceeds of any court award of settlement as security for new value given in consideration of such voluntary assignment. But rights to damages for purely personal torts can be assigned (namely, judgments and rights to contribution). ²¹²

2. Wrongful Death. ²¹³ The filing of a complaint for wrongful death against a health care provider at the time of service of process is deemed a certification that the plaintiff has obtained from an expert witness a written opinion signed by the expert that, based upon an understanding of the facts, the defendant deviated from the applicable standard of care, which is the proximate cause of the injuries claim. ²¹⁴ A "plaintiff's failure to designate an expert to testify concerning proximate causation" is fatal to the plaintiff's case. ²¹⁵

Va. Code § 8.01-50(B) gives the natural mother the right to bring a wrongful death action for a fetal death as defined in Va. Code § 32.1-249. Va. Code § 8.01-50 was amended in 2012 to create a cause of action for the death of a fetus caused by the wrongful act, neglect, or default of any person, ship, vessel, or corporation. The action is brought by the natural mother of the fetus or, in the event of the death or disability of the mother, the administrator of her estate, her guardian, or her personal representative. No cause of action for the death of the fetus may be brought against the natural mother of the fetus.

A health care provider may express condolences, sympathy, and apologies to a relative of the patient, and those expressions, written or oral, are not admissible unless the health care provider admits fault. ²¹⁶

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Wrongful death is a statutory creation, since there was no survival of cause of action at common law. ²¹⁷

A personal representative is a plaintiff. ²¹⁸ This is the regular personal representative. ²¹⁹ A nonresident personal representative may serve subject to the provisions of Va. Code § 64.2-500 and § 64.2-1426. Appointment of a Virginia personal representative to serve with a nonresident personal representative does not oust a federal court of diversity jurisdiction where there is diversity between the beneficiary and the defendant. ²²⁰ A defendant who settles with a putative personal representative should obtain court approval or at least approval that he or she has settled with correct personal representative. ²²¹ To sue a defendant who is dead, and no personal representative has been appointed, see Va. Code § 64.2-454, which provides that a personal representative may be appointed only for the purpose of being the named defendant for a suit.

A wrongful death action must be brought in the name of all administrators (or executors). However, failure of a co-administrator to be named as a plaintiff in the first action does not bar the addition of a second administrator after the statute of limitations has run under Va. Code § 8.01-50. The first co-administrator's filing, without the co-administrator, of the wrongful death claim tolls the statute of limitations for that claim under Va. Code § 8.01-244(B). ²²²

Administrators of a decedent's estate are entitled to present claims to the jury for both wrongful death and a survival action under Va. Code § 8.01-25

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and have the jury decide the issue of causation before the administrators have to make an election under Va. Code § 8.01-56. ²²³

Where a decedent's widow had not qualified as administratrix of decedent's estate when she filed a wrongful death suit, the action was a nullity; therefore, she was not entitled to a nonsuit under Va. Code § 8.01-380. ²²⁴

Distribution of damages is to beneficiaries surviving at the time of verdict or judgment according to the classes set out in Va. Code § 8.01-53 in the following order (but remember, this does not entitle the beneficiaries themselves to pursue the action instead of the personal representatives):

A. The damages awarded pursuant to § 8.01-52 shall be distributed as specified under § 8.01-54 to

(i) the surviving spouse, children of the deceased and children of any deceased child of the deceased, and the parents of the decedent if any of such parents, within 12 months prior to the decedent's death, regularly received support or regularly received services from the decedent for necessaries, including living expenses, food, shelter, health care expenses, or in-home assistance or care, or

(ii) if there be none such, then to the parents, brothers and sisters of the deceased, and to any other relative who is primarily dependent on the decedent for support or services and is also a member of the same household as the decedent or

(iii) if the decedent has left both surviving spouse and parent or parents, but no child or grandchild, the award shall be distributed to the surviving spouse and such parent or parents or

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(iv) if there are survivors under clause (i) or clause (iii), the award shall be distributed to those beneficiaries and to any other relative who is primarily dependent on the decedent for support or services and is also a member of the same household as the decedent or

(v) if no survivors exist under clause (i), (ii), (iii), or (iv), the award shall be distributed in the course of descents as provided for in § 64.2-200. Provided, however, no parent whose parental rights and responsibilities have been terminated by a court of competent jurisdiction or pursuant to a permanent entrustment agreement with a child welfare agency shall be eligible as a beneficiary under this section. For purposes of this section, a relative is any person related to the decedent by blood, marriage, or adoption and also includes a stepchild of the decedent.

B. The class and beneficiaries thereof eligible to receive such distribution shall be fixed (i) at the time the verdict is entered if the jury makes the specification, or (ii) at the time the judgment is rendered if the court specifies the distribution.

C. A beneficiary may renounce his interest in any claim brought pursuant to § 8.01-50 and, in such event, the damages shall be distributed to the beneficiaries in the same class as the renouncing beneficiary or, if there are none, to the beneficiaries in any subsequent class in the order of priority set forth in subsection A.

Damages and costs are recoverable in a wrongful death action. There is no limit to amount of damages subject to "fair and just." ²²⁵ Damages may include: (i) punitive damages for willful or wanton conduct or such recklessness as evidences a conscious disregard of safety of others; ²²⁶ (ii) heart

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balm; ²²⁷ (iii) pecuniary losses; ²²⁸ (iv) care, treatment, and hospitalization; ²²⁹ and (v) reasonable funeral expenses. ²³⁰

Damages are apportioned (among beneficiaries, and also among those entitled for treatment expense, funeral, and punitives) by jury; or court, if the case is tried without a jury or tried by a jury that does not apportion. ²³¹

Damage or loss must be sustained by a statutory beneficiary. There is no intent in the statute to accumulate an estate for decedent. ²³²

An expert may testify as to pecuniary loss. ²³³

Reimbursement of loss of income from any source may not be shown in mitigation of damages. ²³⁴

Damages are not subject to Federal Estate tax. ²³⁵

Costs are apportioned by the court. ²³⁶

Reasonableness of attorney fees is an issue in settlement of a wrongful death case. ²³⁷

A jury verdict for the exact amount of funeral expenses is inadequate as a matter of...