4.9 Limitation of Actions
Library | Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.) |
4.9 LIMITATION OF ACTIONS
4.901 Introduction.
1. | Policy. | |||
a. | To require timely enforcement of rights. | |||
(1) | To guard against lost evidence. | |||
(2) | To prevent witness from disappearing. | |||
(3) | So potential defendants can sleep easy. | |||
(4) | To suppress fraudulent and stale claim. | |||
(5) | To prevent surprise. | |||
b. | So Statutes of Limitation. | |||
(1) | Set time limits within which plaintiff must go to court. |
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(2) | If plaintiff fails to act within those rights, he loses his remedy (or in some cases his right). | |||
(3) | In any event, statute of limitations effectively deprives plaintiff of his right, as it is no longer enforceable. | |||
(4) | But statute of limitations may be tolled either before or after cause of action accrues. 900 | |||
(5) | "No statute of limitations which shall not in express terms apply to the Commonwealth shall be deemed a bar to a proceeding by or on behalf of the [Commonwealth]." 901 | |||
(6) | However, the provisions of Va. Code § 8.01-231 does not apply to counties or other subdivisions of the state, such as a county board of supervisors. 902 | |||
c. | Also Statutes of Repose. | |||
(1) | Statutes of repose bar action after a certain period. | |||
(2) | Differ from statute of limitations in the point from which they run. | |||
(3) | In Virginia at present, statutes of repose apply to construction services and medical malpractice provided, however, the provisions of Va. Code § 8.01-229(A)(2) shall apply to claims under Va. Code § 8.01-243(C)(3). 903 |
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(4) | Policy: Statutes of repose enable potential defendants to have a clean sweep eventually. Otherwise consider: | ||||
(a) | Retired physician: must maintain "tail-end" insurance. | ||||
(b) | Manufacturer: potential liability and therefore insurance costs accumulate over the years. | ||||
(5) | Note "statutes of repose" is sometimes used as a generic term to include statute of limitations and any statutory time limits on enforcement of rights. | ||||
(6) | See School Board of City of Norfolk v. United States Gypsum Co., 234 Va. 32, 360 S.E.2d 325 (1987) (application of Va. Code § 8.01-250.1 retroactively is unconstitutional under due process clause of Va. Const. art. 1, § 11 with regard to limitations of actions for removal of asbestos). | ||||
d. | And in equity, doctrine of laches. | ||||
(1) | Strictly speaking, statute of limitations applies only at law. | ||||
(2) | But see paragraph 4.909 below. | ||||
2. | Three kinds of statute of limitations. | ||||
a. | "Pure" statute of limitations. 904 | ||||
(1) | Bars the remedy. | ||||
(2) | The right technically still exists, but not worth anything. |
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(3) | New statute of limitations may apply retrospectively, if change gives plaintiffs sufficient notice. 905 | ||||
b. | "Special" statute of limitations. | ||||
(1) | Statute creates a right, but only if timely enforced. | ||||
(2) | So failure to act in time leads to loss of right, and plaintiff traditionally had to include in pleading averment that timely filed. | ||||
(3) | Examples: | ||||
(a) | Wrongful Death. | ||||
(b) | Mechanic's Lien. 906 | ||||
(c) | Tort Claims Act. 907 | ||||
(d) | Va. Code § 8.01-40 (unauthorized use of person's name or picture for advertising purposes). | ||||
c. | Statute of Repose. 908 |
4.902 Four Fundamentals in Applying the Statute of Limitations.
1. | How many causes of action does the plaintiff have? | |
2. | When does the statute of limitations begin to run on each cause of action? |
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3. | How long does it run for—What statute of limitations applies to each cause of action? | |
4. | What stops it ticking? "Tolling the statute of limitations." 909 |
4.903 Determine the Number of Causes of Action.
1. | Right of action cannot accrue until there is a cause of action. 910 | |||
2. | For a cause of action there must be: | |||
a. | Duty at law or legal obligation. | |||
b. | Breach of duty or obligation. | |||
c. | Harm. | |||
(1) | Barnes v. Sears, Roebuck & Co., 406 F.2d 859 (4th Cir. 1969). | |||
(2) | Caudill v. Wise Rambler, Inc., 210 Va. 11, 168 S.E.2d 257 (1969). | |||
(3) | Carter v. Hinkle, 189 Va. 1, 52 S.E.2d 135 (1949). | |||
(4) | But see Va. Code § 8.01-249(4) for asbestos-related injuries; Va. Code § 8.01-249(6) sexual abuse during infancy or incapacity; Va. Code § 8.01-249(7) injury from breast implantations of any prosthetic device; Va. Code § 8.01-249(8) on an open account; and Va. Code § 8.01-249(9) products liability actions against parties other than health care providers. |
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4.904 Accrual of the Cause of Action. 911
1. | Consider: | |||
a. | Nature of action (contract or tort). Object of action, not form. | |||
(1) | Birmingham v. C&O R.R., 98 Va. 548, 37 S.E. 17 (1900); Appalachian Power Co. v. General Elec. Co., 508 F. Supp. 530 (W.D. Va. 1980), aff'd 665 F.2d 1038 (4th Cir. 1981). | |||
(2) | Oleyar v. Kerr, 217 Va. 88, 225 S.E.2d 398 (1976). | |||
(3) | Remember products liability contract/tort interface. | |||
b. | Wrong by defendant. | |||
c. | Injury to plaintiff. | |||
2. | Contracts. | |||
a. | Cause of action accrues on breach of contract; 912 accrues for UCC sale of goods on delivery. 913 UCC applies: | |||
(1) | To parties in privity. | |||
(2) | In action against manufacturer or seller of product, regardless of privity. 914 | |||
(3) | But not to too remote manufacturer; 915 three-year statute of limitations applies under Va. Code § 8.01-246(4). |
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b. | Where cause of action is for breach of warranty under UCC, breach occurs: | |||
(1) | When tender of delivery is made. 916 | |||
(2) | Regardless of plaintiff's lack of knowledge of the breach. | |||
(3) | Where warranty explicitly extends to future performance of the goods and discovery of breach must await such performance. Cause of action accrues when breach is or should have been discovered. For an unsuccessful attempt to use this provision, see E.T. Gresham Co. v. Koehring Crane & Excavator Grp., 479 F. Supp. 132 (E.D. Va. 1979). (P argued that warranties covered future performance of crane) and Luddeke v. Amana Refrigeration, Inc., 239 Va. 203, 387 S.E.2d 502 (1990) (which plaintiff failed to properly plead). | |||
c. | For other contracts, breach occurs: | |||
(1) | On sale of defective goods. 917 | |||
(2) | On supply of service or completion of service contract determine whether contract is divisible or indivisible. 918 | |||
(3) | Life insurance: demand required within reasonable time after death. 919 | |||
(4) | Demand notes: on demand. If no demand, action to enforce demand note: statute of limitations |
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does not run until 10 years after each payment of principal and interest. 920 If demand made, six years from date of demand. On a note payable at a definite time, six years after due date. | ||||
(5) | Condition precedent: statute of limitations does not run until condition performed. 921 | |||
(6) | Course of dealing may have to be examined to determine when performance was due. 922 | |||
(7) | Statute applies to joint ventures and accrues from date of winding up the venture. 923 | |||
(8) | Lease—right of action accrues with initial breach—no continuing breach of lease which extends statute of limitations. 924 | |||
(9) | In action on an open account, from the later of the last payment or last charge for goods or services rendered on account. 925 | |||
d. | Note that there is no general discovery rule. 926 | |||
3. | Damage to Property—Tort or Contract. | |||
a. | If damage to property itself on contract theory, number 2 above applies. |
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b. | On tort theory, under Va. Code § 8.01-230, when damage occurs. | |||
(1) | But the Virginia Supreme Court has held that where property causes consequential damage to other property, a cause of action in respect of the latter arises when the damage occurs (at least under a tort negligence theory), although a cause of action in respect of the damage to the tangible property arises on the sale. 927 | |||
(2) | Some earlier cases suggest the opposite conclusion. 928 | |||
c. | The Damage/Breach of Duty Dichotomy—Contract or Tort. | |||
(1) | For causes of action arising after July 1, 1996, the Virginia Code specifies that for property damage a cause of action accrues when damage occurs and also for personal injury, a cause of action accrues on injury to the plaintiff. 929 | |||
(2) | It is clear that for cause of action arising after July 1, 1996, the statute of limitations runs from date of damage to property. |
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(3) | See Sensenbrenner v. Rust, Orling & Neale, Architects, Inc., 236 Va. 419, 374 S.E.2d 55 (1988) for discussion of breach of contract (economic loss) and damage to property. | ||||
d. | Damage to Buildings. | ||||
(1) | Where caused by equipment, etc., installed in building, for example, refrigerator in Stone, v. Ethan Allen, Inc., 232 Va. 365, 350 S.E.2d 629 (1986). | ||||
(a) | Same analysis as in number 3(b) and (c) above. | ||||
(b) | Ordinary building materials incorporated in structure. Cause of action accrues upon the delivery of the materials and subject to provisions of Va. Code § 8.01-250 (a statute of repose). 930 | ||||
(2) | Where caused by defective workmanship. | ||||
(a) | Cause of action accrues on breach of contract or duty, 931 namely, on "delivery" of finished building or on incorporation of materials. 932 | ||||
(b) | For condominiums, statutory warranty period. 933 | ||||
(c) | Statute of repose also operates. 934 | ||||
i. In respect of tort action only. 935 |
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ii. Runs from date of performance or furnishing of services and construction. | |||||
iii. Five-year period. | |||||
iv. Constitutional challenge (special legislation) rejected in Adams v. Carrier Corp., 1 Va. Cir. 150 (1973). 936 | |||||
v. May reduce statute of limitations period in which action may be brought, but does not extend statute of limitations period. 937 | |||||
vi. Covers person designing |
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