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Homeowner Claims ‘Incapacity’ Tolls Statute

A Harrisonburg U.S. District Court will hold an evidentiary hearing to allow a policyholder to develop her claim that stress and “general incapacity” rendered her unable to timely file her suit against an insurance company she says did not fully compensate her for a fire loss.

This case involves a breach of contract claim, filed by plaintiff, involving a homeowner’s insurance policy and is before this court based on diversity jurisdiction. The dispute arises out of a fire at plaintiff’s residence on March 31, 2006, and her subsequent attempts to receive insurance coverage from State Farm for repairs to that property pursuant to her homeowner’s policy. Plaintiff has dismissed all claims but her breach of contract claim for $187,417.57, plus reasonable attorney’s fees and costs.

The parties disputed plaintiff’s entitlement to substitute housing for herself and her family while defendant made repairs after the 2006 fire. Defendant allegedly informed plaintiff substitute housing was not necessary, and she alleges the local county Department of Public Works inspected the property, found it unsafe for habitation and revoked the occupancy permit.

Defendant tendered checks for $19,507.74 for repairs and $13,800 as partial payment for substitute housing, but plaintiff alleged she obtained estimates of $267,500, $305,900 and $317,000 for the necessary repairs. She sued defendant on Nov. 22, 2006, but nonsuited that action on April 10, 2008, and alleges she was unable to pursue the litigation because of stress-related health reasons and general incapacity.

On May 9, 2008, State Farm made an additional payment to plaintiff of $94,619 based on a repair estimate prepared in the summer of 2007. Plaintiff filed a second lawsuit in state court on March 30, 2011, four years and 364 days after the date of the March 31, 2006 fire loss.

The court finds the appropriate statute of limitations period in this case is two years from the date of loss, which, according to Whitaker v. Nationwide Mut. Fire Ins. Co., 115 F. Supp. 2d 612 (E.D. Va. 1999), was the date of the fire on March 31, 2006. Absent any other reasons for tolling, because plaintiff filed her initial lawsuit on Nov. 22, 2006, she had a little more than 16 months from the date she voluntarily nonsuited that action on April 10, 2008, to file her second suit. The March 30, 2011 filing of her second lawsuit for breach of contract is untimely.

However, the court will allow plaintiff additional time to develop her claim that the limitations period should be tolled due to her incapacity. The court finds plaintiff does not have a statutory right to a jury determination on incapacity, and the court will make this decision.

Plaintiff claims her dispute with State Farm has caused her “extreme emotional distress.” She does not elaborate further regarding her “general incapacity.”

In 1998, the General Assembly amended the statute to allow tolling when a plaintiff becomes “incapacitated.”  That term is not defined in Va. Code § 8.01-229, but a persuasive definition can be found in § 37.2-1000. That statute says an incapacitated person cannot meet the essential requirements for his health, care, safety or therapeutic needs without the assistance of a guardian, or manage property or financial affairs or provide for his support without the assistance or protection of a conservator.

Absent proof of plaintiff’s incapacity, this case is time-barred and should be dismissed. Although very thinly pleaded, the complaint does refer to plaintiff’s “general incapacity.” Out of an abundance of caution, the court will deny State Farm’s motion to dismiss at this time of the limited basis of plaintiff’s claim of incapacity an give the parties 60 days to conduct discovery on this narrow issue, for a later evidentiary hearing.

Calvert v. State Farm Fire & Cas. Co. (Urbanski) No. 5:12cv00017, July 10, 2012; USDC at Harrisonburg, Va. VLW 012-3-301, 20 pp.

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