Nonsuit dismissal questioned by plaintiff’s bar

Virginia plaintiffs’ lawyers are rallying in hopes of overturning the decision of a Loudoun County judge who dismissed a personal injury action as untimely because the damage claim was higher than in a previous nonsuited action.

“This decision has got people sitting up and taking notice. It’s frightening,” said John E. Davidson, a plaintiffs’ lawyer who may try to reverse the ruling on behalf of the Virginia Trial Lawyers Association.

Leon Demsky, who represents a woman who claims to have been injured at Dulles Airport, said VTLA members have promised support in the case of Spear v. Metropolitan Washington Airports Authority (VLW 009-8-164).

According to her complaint, Elaine Spear fell out of a wheelchair in a Dulles Airport mobile lounge in April 2005. At Dulles, 102-passenger mobile lounges are used to move passengers between the main terminal and outlying concourses. Spear alleged the vehicle stopped suddenly, causing her unsecured wheelchair to tip over. She sued both the airport authority and the company that provided wheelchair services.

Demsky filed Spear’s first complaint just short of the two-year limitations deadline in April 2007. The lawsuit demanded $325,000.

That action was nonsuited in October 2008. Under Virginia law, a nonsuit is a voluntary dismissal that allows the claim to be refiled. A plaintiff is allowed one nonsuit without asking permission from the court or other parties.

The current suit was filed in March 2009, within the six months allowed under Virginia’s nonsuit statute. The critical difference in the new action, according to the court, was the fact that Demsky now demanded $500,000 on behalf of his client, not the original $325,000.

According to the defense lawyers, the increased ad damnum meant the new lawsuit was not the same action as the nonsuited claim. The new lawsuit was a “nullity,” McLean lawyer Donald C. Weinberg claimed, since it was a different action filed outside the two-year limitations period.

Circuit Judge James H. Chamblin agreed. “I think the amount sued for has just as much significance as the nature of the claim,” he wrote.

Chamblin noted that a plaintiff cannot recover more than the ad damnum, the amount requested affects how a defendant will defend a claim, motions to increase the ad damnum are routinely filed and either party may inform a jury of the amount sued for. “For these reasons, I think that the amount sued for is just as much a component of an action as the operative facts alleged and the claims made by a plaintiff,” Chamblin said.

Because Spear did not “recommence the same action” in filing her new complaint, Chamblin ruled the clock had not stopped under the nonsuit statute, and the new action was barred by the statute of limitations. The judge dismissed Spear’s complaint with prejudice in an Aug. 12 letter opinion.

Weinberg, whose argument won the day on behalf of defendant Air Serv Corporation, Inc., the wheelchair service firm, acknowledged there was no guiding case on point. “It turned out to be a case of first impression,” he said. “All of our authority was by analogy.”

Weinberg is not surprised by the interest of plaintiffs’ lawyers in the case. “My guess is they’re going to jump right in on appeal.”

Demsky said he plans a motion for reconsideration and – failing that – an appeal to the Supreme Court of Virginia. He said Chamblin’s ruling is “against most of the tradition involving a nonsuit.”

Plaintiffs’ lawyers are determined to overturn the Spear decision, but they offer differing arguments.
“This is just wrong,” said Roger T. Creager, a Richmond plaintiffs’ lawyer, who pointed to the case of Conner v. Rose, 252 Va. 57 (1996).

In that case, the Supreme Court of Virginia approved the filing of a personal injury claim in circuit court with a larger ad damnum after the original claim was nonsuited in general district court. The court reasoned that it was permissible to file in a different court because the larger demand meant the district court would not have jurisdiction.

Creager argues that if Chamblin’s reasoning is correct, “you could not possibly reach that result, that they reached in Conner.”

Chamblin distinguished Conner, however, and the 1996 decision does not directly address the difference in the ad damnum.

Davidson, a Charlottesville lawyer who heads the VTLA’s amicus committee, marshals a different set of arguments, starting with a general principle: “Any decision that prevents a full and fair hearing on the merits demands close scrutiny,” he said.

The ruling turned on a definition of the term “action,” Davidson noted. He said a 1998 Supreme Court opinion defined the “action” as “the counts or claims remaining in the case” at the time a nonsuit is taken. Davidson argued the ad damnum is not a count or a claim.

Davidson maintains the Spear ruling is counter to the Supreme Court’s oft-expressed policy allowing liberal amendment of claims.

Finally, Davidson argues the logical result of Chamblin’s decision is to penalize typographical errors by dismissal, in the event a comma or a zero were misplaced in a re-filed action.

If the Spear decision prevails, Davidson said, plaintiffs’ lawyers will have to file photocopies of their nonsuited actions just to ensure there are no slight differences that might lead to dismissal. Under Spear, he said, “an errant digit requires blowing up the whole lawsuit.”