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Nonsuit ruling appealed

A woman who had her case dismissed because she increased the amount sued for after taking a nonsuit filed a petition for appeal with the Supreme Court of Virginia earlier this month.

Elaine Spear alleged that she fell out of a wheelchair and was injured when a mobile lounge at Washington Dulles International Airport stopped abruptly.

She sought $325,000 in her original complaint but increased the amount to $500,000 when she attempted to revive the case well within the six months given under Virginia Code Sec. 8.01-229(E)(3) but more than two years after the accident occurred.

Raising the ad damnum made it a new case that was outside the statute of limitations, attorneys for the airport and other defendants argued.

Loudoun County Circuit Judge James H. Chamblin agreed. “I think the amount sued for has just as much significance as the nature of the claim,” he wrote.

Plaintiffs’ attorneys were critical of the decision in our analysis of it in August.

The petition for appeal makes an effort at a legislative response in the 2010 session unlikely. The General Assembly typically does not address issues when they are in litigation, and especially when they are before the Supreme Court.

The appellate style of the case is Spear v. Metropolitan Washington Airport Authority, Record No. 092451.

By Alan Cooper

4 comments

  1. Notes on the General Assembly Amendments and Nonsuit: these are some notes that were not immediately apparent but which have proven useful to me anyway.

    1. If the General Assembly amends a law, it may be assumed that the law meant something different before the amendment. Therefore, even if the GA were to pass an amendment that effectively said, for example, that a dismissal should not have issued in this case, the plaintiff conceivably could be out of luck under the “old” non-amended rule. This was the basis of a win on a case of first impression in a criminal defense case. But it was not immediately obvious.

    2. Nonsuit: nonsuits may issue as of right before a final order in a case. This means that in a divorce case, where the final order of divorce has been entere, but the case has been brought back on a matter of child custody and visitation, a nonsuit is not appropriate.

  2. Notes on the General Assembly Amendments and Nonsuit: these are some notes that were not immediately apparent but which have proven useful to me anyway.

    1. If the General Assembly amends a law, it may be assumed that the law meant something different before the amendment. Therefore, even if the GA were to pass an amendment that effectively said, for example, that a dismissal should not have issued in this case, the plaintiff conceivably could be out of luck under the “old” non-amended rule. This was the basis of a win on a case of first impression in a criminal defense case. But it was not immediately obvious.

    2. Nonsuit: nonsuits may issue as of right before a final order in a case. This means that in a divorce case, where the final order of divorce has been entere, but the case has been brought back on a matter of child custody and visitation, a nonsuit is not appropriate.

  3. I am not so sure I agree with the ruling.

  4. I am not so sure I agree with the ruling.

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