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Expired: COVID-19 tolling period only applies after action accrued

Jason Boleman//November 6, 2023

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Expired: COVID-19 tolling period only applies after action accrued

Jason Boleman//November 6, 2023//

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A plaintiff whose cause of action accrued during the COVID-19 judicial emergency in 2020 is only entitled to the tolling period after the cause of action accrued, the Fairfax County Circuit Court found in a case of first impression.

The plaintiffs, who were involved in a 2020 car accident with the defendant, tried to argue they were entitled to the entire 126-day tolling period, rather than the 43 days between the date of the accident and the end of the tolling period.

“The Plaintiff is incorrect,” Judge Randy I. Bellows wrote in a six-page letter opinion. “This language [in the judicial emergency orders] does not support their argument.”

The Oct. 24 decision is Aluko, et al. v. Brown Jr. (VLW 023-8-075).


The parties were involved in a car accident on Interstate 66 in Fairfax County on June 7, 2020. In their August 2022 complaint, the plaintiffs claimed the defendant “recklessly and negligently struck Plaintiffs vehicle,” which led to injuries and other damages.

The complaint named four plaintiffs: Phillip Ryan Aluko and Madam Aluko, in both their individual capacities and as parent and next friend of minors P.A. and M.A., respectively. A general district court judge granted a motion to non-suit all but Phillip in October 2022; the other three plaintiffs then filed new suits.

The defendant filed a plea in bar on statute of limitations grounds against the Alukos, which was sustained by a general district court judge in May 2023. This appeal followed. The circuit court sustained the plea in bar and dismissed the case with prejudice.

The plaintiffs filed an instant motion for reconsideration, which led to the present appeal.

COVID-19 emergency orders

The issue here stems from the Supreme Court of Virginia’s judicial emergency in response to the COVID-19 pandemic, which was declared on March 16, 2020. Multiple orders were subsequently issued extending the emergency, ultimately extending the tolling period for statutes of limitation and deadlines from March 16, 2020, through July 19, 2020.

Bellows noted that the impact of the order can be explained by three scenarios. In the first, a cause of action accrues prior to the judicial emergency and would expire during the tolling period; in the second, the cause of action accrues prior to the judicial emergency and would expire after the tolling period. In both scenarios, Bellows wrote, the plaintiff “would have the benefit of the entire tolling period of the judicial emergency.”

However, the cause of action here accrues during the tolling period — in this case approximately two and a half months after the judicial emergency was declared.

“Under this circumstance, the plaintiff would have the benefit of that portion of the tolled period between the date the cause of action accrued and July 19, 2020,” Bellows wrote.

Citing Va. Code § 8.01-243, the judge noted that personal injury cases such as Aluko have a statute of limitations of two years. That means the statute of limitations would have expired on June 7, 2022, absent tolling.

“However, because of the Judicial Emergency Orders, the Plaintiffs had the benefit of an additional 43 days, calculated as the number of days between the date of the accident and the end of the tolling period,” Bellows wrote.

This extension presented a new expiration date of July 19, 2022. But the plaintiffs’ lawsuit was filed on Aug. 31, 2022, beyond the expiration date with tolling.

On appeal, the plaintiffs argued they were entitled to the entire 126-day window of tolling that the Supreme Court of Virginia provided in the judicial emergency, including days before the accident took place, citing language in the order referring to tolling “all deadlines” and “all statutes of limitations.”

Bellows said that language doesn’t support their argument.

“Here, there was no right of action, no cause of action, no injury, no damage, no statute of limitation and, therefore, no tolling of a statute of limitations, prior to June 7, 2020,” Bellows wrote. “Therefore, the time period between March 16, 2020 and June 7, 2020 must be excluded from the calculation of the number of days tolled by the Judicial Emergency Orders.”

No equitable tolling

The plaintiffs made an alternative argument, claiming they are entitled to equitable tolling, which per precedent is “reserved for those rare instances where — due to circumstances external to the party’s own conduct — it would be unconscionable to enforce the limitation period against the party and gross injustice would result.”

The plaintiffs relied on Ceriani v. Dionysus, Inc., a 2022 case from the U.S. District Court for the Eastern District of Virginia that also concerned the judicial emergency orders.

Bellows said that reliance was misplaced. The only similarity between the cases is that each concerned the high court’s judicial emergency orders. He added that Ceriani was a “Scenario 2” case about a cause of action that accrued before the tolling period and was due to expire after the tolling period ended.

“None of the judicial emergency orders modified the determination of when a cause of action accrued, nor suggested, implied, or intimated that a cause of action accruing during the judicial emergency could somehow reach back into the past to acquire a tolling period for an event that had not yet even occurred,” the judge wrote.

Citing the U.S. Supreme Court’s decision in Pace v. DiGuglielmo, Bellows noted that the country’s highest court found equitable tolling required two elements: “that [the litigant] has been pursuing his rights diligently, and that some extraordinary circumstance stood in his way.”

“On the record before this Court, there is no basis for the Court to find that the Plaintiffs have carried their burden of proving diligence in pursuing their rights,” the judge wrote. “Two years and 43 days was certainly a sufficient amount of time for the Plaintiffs to file their complaint.”

Noting the “extraordinary circumstance” of the COVID-19 pandemic, he said “there was nothing about the pandemic or the Judicial Emergency Orders that compromised the Plaintiffs’ ability to calculate when their cause of action accrued or to recognize that a tolling period cannot begin before the event giving rise to a cause of action has occurred.”

Bellows denied the motion for reconsideration and the case stands dismissed with prejudice.

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