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No nonsuit for unqualified personal representative

A wrongful death suit filed by a family member who had not yet qualified as a personal representative of the decedent is a nullity and cannot be nonsuited, the Virginia Supreme Court has ruled.

Because the wrongful death statute requires that suit be filed by a decedent’s personal representative, a plaintiff who had not yet qualified as an administrator or executor lacked standing to sue, the court held in Johnston Memorial Hosp. v. Bazemore.

“If an action is a nullity, regardless of the reason it is such, then no legal proceeding is pending that can be nonsuited,” wrote Justice Cynthia D. Kinser for the court.

Washington County Circuit Judge C. Randall Lowe had allowed a nonsuit, but the Supreme Court now reverses that action and dismisses the medical malpractice lawsuit with prejudice.

By Peter Vieth.

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