eNotes: Liability – January 2024 – Virginia

SIGNIFICANT CASE SUMMARIES

Virginia Case Summary

Clutteur v. Rosier
Virginia Court of Appeals
No. 0104-22-3

Decided: October 31, 2023

The failure to timely substitute a personal representative for a deceased defendant renders the action a legal nullity with no legal effect.

Background

In January of 2017, Plaintiff was allegedly injured in a car accident with Nancy Rosier. Rosier subsequently died on September 17, 2017. Plaintiff filed a Complaint against Rosier in December of 2018, within the statute of limitations for personal injury actions. However, Rosier was not a proper party defendant because she had died prior to the commencement of the action. In 2021, an insurance company acting in Rosier’s name, filed an Amended Answer asserting that Rosier was deceased and filed a Plea of statute of limitations. There, they asserted that Plaintiff’s case was a nullity because the time provided for amending Plaintiff’s Complaint to substitute a personal representative for Rosier had expired. Rosier also asserted that the limitations period for commencing a personal injury action against a deceased Defendant had expired. Plaintiff was granted a nonsuit and recommenced the action in 2021.

Defendant filed a plea in bar contending that Clutteur’s originally filed Complaint against a deceased Defendant, Rosier, was a legal nullity and therefore time-barred. Defendant argued that Clutteur’s action was time-barred because (1) Clutteur’s action was filed after the expiration of the applicable limitations period and (2) Clutteur’s action was not entitled to tolling based on the nonsuited action because the limitations period for Clutteur’s action “had already run prior to the taking of the nonsuit.” In opposition to Rosier’s plea-in-bar, Clutteur responded that her second filed Complaint was not untimely because, having recommenced the nonsuited action within six months, the statute of limitations was tolled by the nonsuited action. Clutteur also asserted that a “general appearance” by Rosier’s counsel in the nonsuited action tolled the statute of limitations.

Holding

The court found that Plaintiff’s failure to amend the originally filed action to substitute a qualified personal representative for the named deceased party-Defendant within the time allowed by Virginia Code rendered the originally action a nullity with no legal effect. Additionally, the general appearance of insurance counsel in the name of the deceased Defendant did not relieve Plaintiff of the obligation to timely amend her Complaint to substitute a personal representative for the deceased Rosier. The originally filed action was a nullity because it was not a properly filed action, and a nonsuit was unavailable. Moreover, the originally filed action did toll the statute of limitations because it was a nullity. Consequently, even if Plaintiff amended the second Complaint to substitute Rosier’s personal representative for the deceased Rosier, the resulting action would still be time-barred under the statute of limitations.

Questions about this case can be directed to Nicolette DeFrank at (571) 470-0395 or ndefrank@tthlaw.com.