Home / Fulltext Opinions / Supreme Court of Virginia / RIDDETT v. VIRGINIA ELECTRIC AND POWER COMPANY (59949)



January 9, 1998
Record No. 970297





Robert W. Curran, Judge
Present: All the Justices

This is an appeal from a summary judgment entered in an action
brought under the Death By Wrongful Act statutes, Code ?? 8.01-50 through
-56. The question is whether the trial court correctly ruled that
the plaintiff’s action was time barred when a nonsuited action
was not refiled within the time prescribed by the wrongful death
statute of limitations in effect when the cause of action
accrued. In other words, we must determine whether the trial
court correctly refused to apply retroactively a tolling
provision amendment to the wrongful death statute of limitations
enacted after accrual of the instant cause of action.

The chronology is important. On July 3, 1987, Clifford Riddett
was electrocuted while attempting to install ground anchors
adjacent to his mobile home in Gloucester County. On June 29,
1989, with four days remaining on the applicable two-year statute
of limitations, appellant Patricia Riddett, Administratrix of the
Estate of Clifford Riddett, Deceased, filed in the court below a
wrongful death action, the original action, against appellee
Virginia Electric and Power Company and others. The plaintiff
sought judgment for damages as a result of the defendants’
alleged negligence in causing the decedent’s death.

On January 11, 1991, while the original action was still
pending, this Court decided Dodson v. Potomac Mack
Sales & Serv., Inc.
, 241 Va. 89, 400 S.E.2d 178. We held
that the wrongful death statute of limitations, in former Code ? 8.01-244(B), prescribed
"a limitation period and a discrete tolling provision
applicable to nonsuits of wrongful death actions." Id.
at 93, 400 S.E.2d at 180. We said that former Code ? 8.01-229(E)(3), dealing
generally with the subject of tolling statutes of limitations,
was inapplicable to wrongful death actions because former ? 8.01-244(B), dealing
specifically with the subject, controlled. Id. at 94-95,
400 S.E.2d at 181.

Effective July 1, 1991, the General Assembly amended the
foregoing statutes. Acts 1991, ch. 722. The amendments modified
those statutes to provide a six-month tolling provision for
nonsuited wrongful death actions.

On January 20, 1995, the plaintiff nonsuited the original
action. On June 20, 1995, the plaintiff filed the present
wrongful death action against Virginia Power, and others, making
essentially the same allegations that had been made in the
original action. Later, the plaintiff’s case against the other
defendants was settled.

Virginia Power filed a motion for summary judgment on the
ground that the present action was untimely. Following a hearing,
the trial court granted defendant’s motion and dismissed the
action with prejudice. We awarded plaintiff this appeal from the
November 1996 final order.

When the plaintiff’s cause of action accrued, the 1984 version
of the wrongful death statute of limitations was in effect. It
provided that if a wrongful death action is brought within two
years after the death of the injured person and is dismissed
without determining the merits, "the time such action is
pending shall not be counted as any part of such period of two
years and another action may be brought within the remaining
period of such two years as if such former action had not been
instituted." Code ?
8.01-244(B) (1984 Repl. Vol.).

As we have said, in Dodson we held the foregoing
statute controlled that wrongful death action, not Code ? 8.01-229, the general
nonsuit statute. As pertinent, the latter statute provided that
if a plaintiff suffers a voluntary nonsuit, "the statute of
limitations with respect to such action shall be tolled by the
commencement of the nonsuited action, and the plaintiff may
recommence his action within six months from the date he suffers
such nonsuit, or within the original period of limitation,
whichever period is longer." Code ? 8.01-229(E)(3) (1984 Repl.

In the 1991 amendments to the foregoing statutes, the General
Assembly provided in ?
8.01-229 that the six-month tolling provision for nonsuited
actions "shall apply to all actions irrespective of whether
they arise under common law or statute." Code ? 8.01-229(E)(3) (1992 Repl.

At the same time, the legislature provided in ? 8.01-244 that if a
plaintiff suffers a voluntary nonsuit, "the provisions of
subdivision E 3 of ?
8.01-229 shall apply to such a nonsuited action." Code ? 8.01-244(B) (1992 Repl.

On appeal, the plaintiff points out the 1991 amendments
"extending the six-month tolling provisions following a
nonsuit to wrongful death actions had been in existence for more
than three and one-half years when plaintiff’s original action
was nonsuited." Continuing, plaintiff says there "is no
dispute that the original action was timely filed" and there
"can be no dispute that, at the time the 1991 statutory
amendments became effective, plaintiff’s claim was not

Building on this premise, the plaintiff contends the 1991
nonsuit tolling provisions are applicable to her cause of action
by virtue of the provisions of Code ? 8.01-1. That statute
provides: "Except as may be otherwise provided in ? 8.01-256 [governing
limitations affecting actions pending on October 1, 1977] . . . ,
all provisions of this title shall apply to causes of action
which arose prior to the effective date of any such provisions;
provided, however, that the applicable law in effect on the day
before the effective date of the particular provisions shall
apply if in the opinion of the court any particular provision (i)
may materially change the substantive rights of a party (as
distinguished from the procedural aspects of the remedy) or (ii)
may cause the miscarriage of justice." The plaintiff argues
that under those "plain terms . . . new or amended
provisions of Title 8.01 apply to existing causes of action
except in three instances," which, the plaintiff says, are
inapplicable here.

Additionally, plaintiff contends there is a difference between
"a limitation period" and "a tolling
provision." A tolling provision, according to plaintiff,
"confers neither right nor remedy," but rather
"involves the procedural aspects of a remedy." Also,
plaintiff argues, "nonsuit tolling provisions are not
substantive and do not materially curtail any substantive
rights" of defendant.

Elaborating, plaintiff contends the "purpose of the
statute of limitations was served when plaintiff brought her
original action within two years of" the decedent’s death.
She says defendant was put on timely notice of her claim,
identified witnesses, gathered evidence, and engaged in extensive
discovery before the original action was nonsuited. She argues
defendant’s "ability to defend plaintiff’s claim was in no
way impaired by the nonsuit of the original action and her filing
of the second action six months later."

Finally, plaintiff contends the General Assembly
"manifestly intended the nonsuit tolling provisions of the
1991 amendments were to apply to actions for wrongful death
pending on the effective date of those amendments." She says
Code ? 8.01-1
"could not be more clear." Also, she argues, Code ? 8.01-229(E)(3) was
modified to apply to "all actions," thereby making
"clear that the nonsuit tolling provisions applied not only
to common law actions but to actions, such as those for wrongful
death, created by statute."

Thus, plaintiff contends, the trial court erred in granting
defendant’s motion for summary judgment. We disagree.

If the 1984 versions of the applicable statutes control,
particularly Code ?
8.01-244(B), the present action was untimely. See Dodson,
241 Va. at 95, 400 S.E.2d at 181. When the original action was
filed, only four days of the two-year limitations period
remained. Thus, when the plaintiff took the nonsuit, she had four
days to refile the action pursuant to the tolling provision of ? 8.01-244(B) (time wrongful
death action pending not to be counted as any part of two-year
limitation period and another action may be brought within
remaining two-year period). The plaintiff waited, however, five
months before refiling.

To salvage her time-barred action, the plaintiff seeks to
apply the 1991 amendments retroactively. The success of that
strategy depends upon whether the time provisions of the 1991
amendments are procedural and not substantive. We hold they are

"Substantive rights, which are not necessarily synonymous
with vested rights, are included within that part of the law
dealing with creation of duties, rights, and obligations, as
opposed to procedural or remedial law, which prescribes methods
of obtaining redress or enforcement of rights." Shiflet
v. Eller, 228 Va. 115, 120, 319 S.E.2d 750, 754 (1984).

Actions for wrongful death did not exist at common law. The
cause of action and the right to enforce it were created by
statute. Dodson, 241 Va. at 92, 400 S.E.2d at 180. The
limitation period contained in Code ? 8.01-244(B) is directed
specifically to the right of action provided by the wrongful
death act; the limitation qualifies the right. See Jones
v. R.S. Jones and Assocs., Inc., 246 Va. 3, 7, 431 S.E.2d
33, 35 (1993). Thus, the limitation period for bringing the
wrongful death action, including the tolling provision, is a
substantive part of such action. Id.

Consequently, because the wrongful death statutes inextricably
bind the remedy to the right of recovery, the rights of the
plaintiff and defendant under the statutes became fixed at the
time the cause of action accrued and subsequent amendments do not
apply retroactively. Barksdale v. H.O. Engen, Inc.,
218 Va. 496, 498-99, 237 S.E.2d 794, 796-97 (1977). This rule
applies whether the amendments are to tolling provisions or
statutes of limitation. See Dodson, 241 Va. at
93-94, 400 S.E.2d at 180.

Moreover, contrary to plaintiff’s contention, Code ? 8.01-1 does not
require retroactive application of the 1991 amendments. Such
application is prohibited by the provisions of Code ? 1-16. As pertinent,
that statute provides: "No new law shall be construed to
repeal a former law . . . or any right accrued, or claim arising
under the former law, or in any way whatever to affect . . . any
right accrued, or claim arising before the new law takes effect;
save only that the proceedings thereafter had shall conform, so
far as practicable, to the laws in force at the time of such
proceedings. . . ." See Harris v. DiMattina,
250 Va. 306, 311-12, 462 S.E.2d 338, 340 (1995); Ferguson
v. Ferguson, 169 Va. 77, 87-88, 192 S.E. 774, 777 (1937).

Code ? 8.01-1 is an
exception to the general rule of statutory construction set forth
in ? 1-16. Harris,
250 Va. at 314, 462 S.E.2d at 341. The general rule is that
changes to statutes affecting substantive rights apply
prospectively and that the proceedings under those statutes will
conform to the laws in effect on the date they are conducted.
Section 8.01-1, the exception, deals only with changes in the
procedural provisions of Title 8.01 and also sets forth certain
circumstances when such procedural changes may not apply to
existing causes of action. Because the 1991 amendments are
changes to the substantive statutes under consideration, ? 8.01-1 has no application.

Finally, the plain language of the 1991 amendments does not
support the plaintiff’s contention that the General Assembly
intended them to apply retroactively. The plaintiff urges
retroactive application because the modification to Code ? 8.01-229(E)(3) applies to
"all actions."

But those words must be construed in context with the language
they accompany. The statute provides that it applies "to all
actions irrespective of whether they arise under common law or
statute." Plainly, the "all actions" phrase means
the amendment applies to both common law and statutory actions.
The words refer to the type of action, and not to
prospective or retroactive application of the amendment. Indeed,
amendments to statutes of limitations are presumed to be
prospective and not retroactive in their operation, in the
absence of a clear legislative intent to the contrary. Ferguson,
169 Va. at 85, 192 S.E. at 776.

Accordingly, we hold there is no error in the judgment of the
trial court and it will be