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Civil Procedure – Nonsuit – Same ‘Action’ – Ad Damnum

Although a car-crash plaintiff changed her damages request when she refiled after a nonsuit – from $250,000 compensatory and $350,000 punitive damages to $300,000 compensatory and no punitive damages – her second lawsuit is the same “action” and is timely under the savings provision of Va. Code § 8.01-229(E)(3), a Rockingham County Circuit Court holds.

Citing Spear v. Metro. Airports Auth. [VLW 009-8-164], defendant argues the use of the word “action” requires plaintiff to ask for the same amount of damages, and that by increasing the ad damnum for compensatory damages, plaintiff has filed a new action outside the recommencement of the nonsuit statute.

Spear dealt with a substantially similar situation: following a nonsuit, the defendant moved to dismiss the new complaint after the six-month window of § 8.01-229(E)(3) had passed because the ad damnum stated a larger sum of money. The court in Spear found the amount of damage should be considered in deciding whether the recommenced action is the same action that was nonsuited. That court dismissed the refilled case with prejudice.

A number of other circuit courts in the commonwealth have encountered the issue of changes in or additions to the recommenced suit being saved by § 8.01-229(E)(3), and these courts have applied somewhat different tests to determine whether the addition or change should be saved. The 4th U.S. Circuit Court of Appeals has also ruled that Va. Code § 8.01-229(E)(3) will save all rights of action arising from the original cause of action, and observed that Va. Code § 8.01-380 authorizes a plaintiff to take a nonsuit on any cause of action and the Virginia Supreme court defines a cause of action as a set of operative facts which under the substantive law may give rise to one or more rights of action.

Reading § 8.01-380 next to § 8.01-229(E)(3), this court also finds that the proper inquiry as to whether a new claim is saved is whether it is part of the same set of operative facts that may give rise to a right of action. While the savings statute does use the word “action,” reading that word strictly wound render moot the nonsuit statute’s authorization for a plaintiff to nonsuit a “cause of action.”

Here, because the new action is part of the same set of operative facts, specifically an automobile accident on May 23, 2005, at the intersection of Port Road and the I-81 exit ramp, it will be saved by the six-month provision of § 8.01-229(E)(3).

Motion to dismiss and special plea in bar denied.

O’Hearn v. Mawyer (Lane, J.) No. CL09-00442, Jan. 7, 2010; Rockingham County Cir.Ct.; William W. Helsley Jr. for plaintiff; Daniel L. Fitch for defendant. VLW 010-8-009, 4 pp.

VLW 010-8-009

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