‘Tolled and extended’: COVID tolling applies to all statutes of limitations

In a matter of first impression, the Court of Appeals of Virginia has reversed a lower court’s dismissal of a personal injury complaint where the plaintiff relied on the Supreme Court of Virginia’s COVID-19 judicial emergency orders to toll the statute of limitations.

The defendant claimed the emergency orders only applied when a statute of limitations expired during the emergency tolling period and didn’t extend the plaintiff’s time to file because the relevant statute of limitations expired after the tolling period ended.

The court disagreed.

“We hold that because the emergency orders tolled and extended all statutes of limitations, [the] suit was not time-barred; thus, we reverse the circuit court’s judgment,” Senior Judge William G. Petty wrote.

Petty’s opinion was joined by Judges Junius P. Fulton and Daniel E. Ortiz in English v. Quinn (VLW 022-7-541).

COVID tolling

On July 28, 2018, Thomas Quinn was involved in an auto accident with another car in which George English was a passenger. English would later claim to have been injured in the accident.

By the time the Virginia Supreme Court issued its first judicial emergency order in response to the COVID-19 pandemic on March 16, 2020, English hadn’t yet sued Quinn.

The first emergency order tolled and extended all deadlines in the district and circuit courts for 21 days. Six more emergency orders extended the tolling period to 126 days between March 16, 2020, and July 19, 2020.

English filed a negligent driving complaint against Quinn on Nov. 30, 2020. Quinn argued that, since the relevant two-year limitations period expired after the tolling period ended, it wasn’t extended by the emergency orders.

English asserted that the emergency orders’ tolling provisions broadly applied to all statutes of limitations, not just those that expired during the tolling period.

Because he had 135 days left in his limitations period when the emergency orders went into effect, English reasoned that his filing deadline was tolled until Dec. 1, 2020.

The circuit court agreed with Quinn that the tolling provisions applied only to statutes of limitations that would have expired during the tolling period and dismissed English’s claim with prejudice.

English appealed.

Emergency orders

Petty reviewed the language of the Supreme Court’s emergency orders and noted that the third order “expressly defined ‘toll’ as ‘[t]o suspend or stop temporarily.’”

The court clarified in a later order that it had “broadly stated” that “all deadlines” were tolled and extended during the emergency period and that each order incorporated by reference all prior orders.

The final order ended the tolling period on July 20, 2020, and said that the period from March 16, 2020, through July 19, 2020, “shall not be counted for purposes of determining statutes of limitation or other case-related deadlines.”

Given that provision, the Court of Appeals concluded that the plain language of the orders “stopp[ed] the limitations clock” for all statutes of limitation between the dates provided.

Further, the court held that “the orders’ tolling provisions were not limited to deadlines that otherwise would have expired during that period.”

Indeed, Petty wrote, “the orders instructed that the time remaining when the tolling period commenced was to be added after the judicial emergency ended.”

“At the risk of stating the obvious, when the Supreme Court said that the orders’ tolling provisions applied to ‘all “statutes of limitations,”’ it meant ‘all “statutes of limitations.”’”

— Senior Judge William G. Petty

Timely filed

Petty noted the statute of limitations at issue here would normally have expired on July 28, 2020. The emergency orders, however, “stopped the clock for the two-year limitations period on March 16, 2020, when English had 135 days remaining to file his claim.”

Quinn claimed the second emergency order only extended statutes of limitations that would have run out during the relevant time frame, pointing to the order’s language tolling “all applicable deadlines, time schedules and filing requirements, including any applicable statute of limitations which would otherwise run during the period this order is in effect.”

Petty was unpersuaded.

“Read together, the judicial emergency orders do not use the word ‘run’ synonymously with the word ‘expire,’” Petty wrote.

The judge explained that the word “run” used in the present tense typically refers to a statute of limitations that is ongoing or would start in the future, compared to a past tense usage which usually refers to an expired limitations period.

Here, the court found the word “run” in the second order “referred to limitations periods that would be ongoing during the period of judicial emergency, rather than those that would ‘expire.’”

“In fact, the judicial emergency orders used the word ‘expire’ when the Court meant ‘expire,’” Petty said.

Having concluded that English had 135 days remaining to file his complaint when the tolling period ended, the court reversed and remanded the case back to the trial court.