HD55 - Statutes of Limitation and Accrual of Actions

  • Published: 1989
  • Author: General Assembly. Joint Subcommittee
  • Enabling Authority: House Joint Resolution 66 (Regular Session, 1988)

Executive Summary:
INTRODUCTION

The 1988 Session of the General Assembly approved creation of a seven-member joint subcommittee to study various issues involving the statutes of limitation and accrual of civil actions in Virginia. See Appendix A. The chief patron of House Joint Resolution No. 66 explained at the initial meeting of the joint subcommittee that law in this area had become too confusing to permit certain interpretations. In the ten years since recodification of Title 8, the Virginia Supreme Court and the General Assembly had interpreted and amended Title 8.01 so often that it has become increasingly difficult for attorneys to determine whether a particular claim would be time barred. It has been noted that ... "[t]he present status (of the law) is a confusing mixture of rules as to which period applies and when the period of limitation for various types of claims begins to run." *(1) The limitations periods generally applicable to personal injury and property damage claims range from one year (§ 8.01-248, Code of Virginia) to five years (§ 8.01-246, Code of Virginia). However, these periods may be shortened significantly, for example, due to notice of claim provisions applicable to claims against municipalities *(2) or the Commonwealth *(3) or where the claim is one for medical malpractice. *(4) Further, the case law made it difficult to determine which limitations period would apply to a given set of facts. In one case, fraudulent representation to a prospective purchaser by a real estate agent as to the zoning of an adjoining piece of property was held to give rise to a personal cause of action subject to a two-year limitations period, and not a property damage claim. Pigott v. Moran, 231 Va. 76 (1986). Even more recently, a claim for damages to the foundation of plaintiffs' home caused by a defect in their swimming pool was determined to be a claim for economic loss, a personal action, and not a claim for property damage. Sensenbrenner v. Rust, Orling and Neale, Inc., 236 Va. __, 5 V.L.R. 1040 (1988). These decisions surprised many members of the bar and the trial bench and emphasized he difficulty in determining whether a set of facts would be considered injury to the person or damage to property. The ambiguous status of the law does not serve the public interest.

The membership of the joint subcommittee was appointed as follows: Delegates Bernard S. Cohen, chief patron of House Joint Resolution No. 66, C. Richard Cranwell and Clinton Miller were appointed by the Speaker of the House of Delegates from the House Committee for Courts of Justice; Senators Thomas J. Michie, Jr., and Mark L. Earley were appointed by the Senate Committee on Privileges and Elections from the Senate Committee for Courts of Justice; and George E. Allen III, as a member of the Virginia Trial Lawyers Association, and John M. Oakey, Jr., as a member of the Virginia Association of Defense Attorneys, were appointed citizen members by the Speaker of the House.

Delegate Cohen was elected chairman and Senator Michie was elected vice chairman. The joint subcommittee held five meetings, including three working sessions, in Richmond. Additionally, Mr. Allen and Mr. Oakey were appointed to a drafting subcommittee and met once with staff to develop draft legislation for discussion during the work sessions.

SUMMARY OF RECOMMENDATIONS

1. A comprehensive revision of the statutes of limitation in civil actions is needed to clarify the laws so they will be easy to understand and will result in consistent and equitable application.

2. The revisions should include: (i) elimination of the various time periods and adoption of but two limitations periods, one for actions for injury to the person and another for actions for damage to property; (ii) modification of the accrual provisions including adoption of a discovery accrual rule to be applied in actions where the injury or damage could not reasonably have been discovered on the traditional accrual date; and (iii) adoption of a statute of repose (i. e., a maximum number of years from the date of injury or damage) applicable to those actions in which the discovery accrual rule is used, unless the action is one for products liability or involves injury resulting from use of or exposure to toxic or harmful substances.

3. The courts should be required to decide, prior to engaging the parties in the time and expense of a trial on the merits, whether an action is barred by the statute of limitations whenever the statute is raised as an affirmative defense and any party requests the determination.

4. Section 8.01-250, Code of Virginia, should be amended to specify that manufacturers and suppliers of ordinary building or construction materials incorporated into improvements in real property are not covered by the statute of repose.

5. The joint subcommittee should be continued to allow further analysis and evaluation of the proposals under consideration for revising the limitations periods and accrual rules.
____________________________________________________
*(1) For an excellent analysis of the problems, see Limitation of Actions in Virginia: Do Too Many Clocks Spoil the Broth?, Honorable J. R. Zepkin, Virginia Bar Association Journal, Winter and Spring, 1988.
*(2) See § 8.01-222, Code of Virginia.
*(3) See § 8.01-195.6, Code of Virginia.
*(4) See § 8.01-581.2, Code of Virginia.