P.i. plaintiffs post win on nonsuit issue 

The latest battle over nonsuit rights may be heating up across Virginia.

A new circuit court case clearly rejects a controversial decision last summer that dismissed a p.i. suit because it was refiled with an increased ad damnum.

Last August, a Loudoun County judge dismissed with prejudice a suit refiled after nonsuit because the p.i. plaintiff asked for more money the second time around. The amount sued for “has just as much significance as the nature of the claim,” said Judge James H. Chamblin in Spear v. MWAA. Because the refiled action increased the ad damnum, it was a different cause of action, he reasoned. A petition for appeal is pending in Spear.

Armed with the Spear ruling, a number of defense lawyers moved to dismiss refiled suits, according to Harrisonburg plaintiff’s lawyer Bill Helsley. He says the VTLA listserv indicates several cases are pending around the commonwealth. Helsley appears to have won one of the first post-Spear cases, in the Jan. 7 decision in O’Hearn v. Mawyer.

In O’Hearn, Rockingham County Circuit Judge James V. Lane looked at Spear, and at other Virginia trial court decisions, but held that the car-crash plaintiff’s tinkering with the ad damnum – from $250,000 compensatory and $350,000 punitive damages to $300,000 compensatory and no punitive damages – did not make the refiled case a different cause of action.

Reading § 8.01-380 next to § 8.01-229(E)(3), Lane said that the new action is part of the same set of operative facts, it is saved by the six-month provision of § 8.01-229(E)(3).