Civil Procedure – Venue – Auto Accident

A Richmond Circuit Court denies a motion to transfer venue in this litigation arising from an auto accident in Henrico County involving plaintiff and defendant, who lived in Henrico County at the time of the accident, but who was a resident of Kentucky when suit was filed in Richmond.

Defendant cited Jones v. Rusteau, 43 Va. Cir. 311 (Richmond 1997) for the proposition that Va. Code § 8.01-262(2) only applies if the defendant was a non-resident at the time the cause of action arose. The court in Rusteau opined that the tense of the words in the venue statute tell us those situations where we look to the past to determine venue. To illustrate, the court pointed to subsections 4, 6 and 7. Subsection 4 provides that venue is proper where the cause of action arose. Subsection 6 provides that venue is proper where a fiduciary qualified. Subsection 7 provides that venue is appropriate where a message was transmitted or was accepted for delivery.

On the other hand, subsection 2, which plaintiff argues provides for venue in this case, indicates that venue is proper where defendant’s agent has been appointed by law. As opposed to the past tense words used in subsections 4, 6 and 7, the words “has been” are present perfect tense, which denotes an action beginning in the past and continuing to the present, without identifying a specific time period.

Accordingly, while it is necessary under Code § 8.01-262(2) that the agent be appointed at the time venue is determined, it is not necessary that the agent be appointed at the time of the accident. The statute’s clear distinction between “was” and “has been” indicates the legislature did not intend for subsection 2 to be a circumstance where courts look to the facts as they were at the time of the accident to determine venue. Otherwise, subsection 2 would provide for venue where the defendant’s agent was appointed by law.

Defendant admits she was a nonresident at the time the action was filed. In light of that fact, defendant qualified as one against whom an order of publication could have been issued by complying with the procedural requirements of the statute. As such, defendant was considered a nonresident motorist for the purposes of Code § 8.01-308, which means the commissioner of the Department of Motor Vehicles “has been” appointed as her agent by operation of law, making venue in Richmond appropriate.

Motion to transfer venue denied.

Vega v. Matthews (Snukals, J.) No. CL08-3014, March 10, 2009; Richmond Cir.Ct.; M. Scott Bucci, Thomas McNally for the parties. VLW 009-8-051, 2 pp.