Virginia Lawyers Weekly VA Lawyers Weekly
A pro se plaintiff’s negligence action against an estate, not the personal representative, is barred by the statute of limitations, as Va. Code § 8.01-6.2(B) did not toll the limitations period, and the Supreme Court of Virginia affirms dismissal of the suit.
Plaintiff’s initial warrant in debt arising from an auto accident and filed against the individual, prior to his death of unrelated causes, was dismissed by the general district court because plaintiff had improperly identified a deceased defendant.
Relying on Va. Code § 8.01-6.2( B), plaintiff asserts the statute of limitations was tolled when he mistakenly filed his action against the estate. Plaintiff also asserts he was entitled to amend his action to include the personal representative of the estate, who would have been a proper party.
We reject plaintiff’s contention that the statute of limitations was tolled. Plaintiff admits he mistakenly filed suit against the estate, rather than against the personal representative of the estate. Applying the plain meaning of Code § 8.01-6.2(B), plaintiff’s pleading against the estate did not toll the statute of limitations. The statute does not apply to plaintiff because nothing in the record suggests the personal representative of the estate, who had been appointed before the expiration of the statute of limitations, was unable to legally receive service, had service been attempted before the expiration of the statute of limitations. The fact that the complaint against the estate was a nullity did not render the estate’s personal representative unable to receive service of process of that invalid complaint.
Acceptance of plaintiff’s position would completely eviscerate the purpose of Code § 8.01-6.2(B) because the logical conclusion of his argument is that the other tolling provisions in Code § 8.01-6.2(B) are either meaningless or surplusage. Plaintiff has failed to show the personal representative of the estate, who had been appointed before the expiration of the statute of limitations, was unable to legally receive service, had service been attempted before the expiration of the statute of limitations. The record is devoid of any evidence that an attempt was made to serve the administrator before the statute of limitations expired.
The court also rejects plaintiff’s claim that he was entitled to amend his lawsuit to include the personal representative as a party defendant and that his complaint could be amended within two years of its filing if the complaint was filed within the statute of limitations. Pursuant to Code § 8.01-229(B)(2), plaintiff may have filed an action against the personal representative before expiration of the statute of limitations or within one year after qualification of the personal representative, whichever occurred later. Neither of these events occurred. As we have already stated, Virginia statutes do not authorize an action against an estate.
Judgment affirmed.
Idoux v. Estate of Raja Alexander Helou (Hassell, J.) No. 090674, April 15, 2010; Fairfax Cir.Ct. (Smith) David Galinis for appellant; Dana L. Tubb, Stephen W. Bancroft for appellee. VLW 010-6-046, 11 pp.
