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Damages: First see the jury, then apply the cap

Personal injury defendants enjoy the protection of certain caps on damages in Virginia. At times, defendants have been able to invoke that protection sooner, rather than later, by getting trial courts to reduce ad damnum clauses to cap levels before a case ever goes to the jury.

But the Supreme Court of Virginia today rejected one such effort to cut to the chase. In Torloni v. Commonwealth (VLW 007-6-090), a unanimous high court reversed a Fairfax Circuit Court decision that trimmed a woman’s pretrial request for damages from $1.5 million to $100,000, the statutory cap under the Virginia Tort Claims Act.

Passenger Suzanna Torloni, who was injured in an auto accident, sued the commonwealth for faulty road maintenance. The Fairfax court granted the commonwealth’s motion to reduce Torloni’s ad damnum, then dismissed the case altogether. Torloni already had settled her claim against the tortfeasor for $100,000, and the credit the commonwealth received under Va. Code § 8.01-35.1 meant it was “effectively insulated” from liability, the trial judge reasoned.

The trial court erred in reducing the ad damnum before a jury verdict, wrote Justice Donald W. Lemons, and erred in interpreting the cap and credit statutes.

Here’s the right order in a suit against the commonwealth, according to Lemons: If the jury returns a verdict in excess of $100,000, the trial court reduces the verdict by the amount received from the settling tortfeasor, and then applies the $100,000 limitation on the commonwealth’s liability.

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