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Attorneys – Legal Malpractice – Limitations – 1986 PSA

Although a wife did not realize damages from a 1985 property settlement agreement’s bare reference to her receipt of “survivor’s benefits from the husband’s retirement pay” until 2006 when she was denied survivor’s benefits from two federal pensions, her 2009 legal malpractice action came too late, the Supreme Court says.

The circuit court held the wife’s cause of action accrued in 1986, when the lawyer’s alleged malpractice occurred, and the statute of limitations had therefore run long before the filing of this action. Wife contends she suffered no injury resulting from defendant’s malpractice until the date of her former husband’s death on June 22, 2006, and this action was timely filed.

The terms “right of action,” used in Va. Code § 8.01-230, and “cause of action,” are sometimes used interchangeably but are not synonymous. They may accrue simultaneously but that will not always be the case. A right of action cannot arise until a cause of action exists because a right of action is a remedial right to presently enforce an existing cause of action.

Wife argues her damage did not occur until the death of her former husband in 2006, when her right to survivors’ benefits would have arisen but for defendant’s malpractice. She contends that before her former husband’s death, her right to survivors’ benefits would have been purely contingent upon his predeceasing her.

We addressed a similar issue in MacLellan v. Throckmorton, 235 Va. 31 (1988). There we said the cause of action accrued upon the termination of the particular undertaking in which the attorney was engaged. That was the date of entry of the final decree of divorce, which occurred more than three years before the malpractice action was filed.

In the present case, the wife relies on Rutter v. Woltz, Blechman, Woltz & Kelly PC, 264 Va. 310 (2002). The distinction between Rutter and the present case lies in the mutability of testamentary dispositions during the testator’s lifetime. A testator may, during his lifetime, alter his will or other testamentary papers as he pleases and whenever he chooses. In this case, as in MacLellan, the plaintiff suffered a legal injury arising out of the defendant’s malpractice when the final divorce decree, incorporating the defective property settlement agreement, was entered by the circuit court.

The legal injury suffered by wife in the present case in 1986 was not vitiated by the fact that her right to pension benefits was contingent upon her surviving her former husband. By virtue of the equitable distribution statutes, in divorce proceedings all pensions are presumed to be marital property in the absence of satisfactory evidence that they are separate property and the court may direct payment of the marital share of such benefits whether they are “vested or nonvested” as they become payable.

The running of the limitation period will not be tolled by the fact that actual or substantial damages did not occur until a later date. Difficulty in ascertaining the existence of a cause of action is similarly irrelevant. This time-honored rule may produce inequities by triggering a statute of limitations when the injury or damage is unknown or difficult or even incapable of discovery, but we have long concluded that it is the role of the General Assembly, not the courts, to change a rule of law that has been relied upon by the bench and bar for many years.

The circuit court correctly held the wife’s legal injury arising out of defendant’s alleged malpractice occurred on Nov. 3, 1986, when the court entered a final decree of divorce, terminating defendant’s employment in the matter in which he was engaged. The wife’s right of action accrued on that date and the statute of limitations then began to run. The court did not err in sustaining the plea in bar.

Judgment affirmed.

Van Dam v. Gay
(Russell, J.) No. 091659, Sept. 16, 2010; Stafford County Cir.Ct. (Kloch) Adam T. Kronfeld for appellant; Carol T. Stone, Virginia M. Sadler for appellee. VLW 010-6-092, 9 pp.

VLW 010-6-092

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