Legal Notices

2010 Virginia General Assembly – A Summary

Civil Procedure

The General Assembly passed House Bill 1193, which adds § 8.01-6.3 to the Code. This section provides that in any action to be prosecuted or defended by or in the name of a fiduciary, the fiduciary must be named substantially in the form, “John Doe, Executor of the Estate of Jane Doe, Deceased.”  A pleading that does not name the fiduciary in the proper form shall be amended on the motion of a party or by the Court on its own motion, and such amendment relates back to the date of the original pleading.  The provisions of this new Code section apply to any action pending as of the effective date of the bill.  This section effectively reverses the ruling in Estate of James v. Peyton, 277 Va. 443, 674 S.E.2d 864 (2009), and attempts to save a plaintiff from being thrown out of court because the plaintiff improperly styled an action brought in a fiduciary capacity. 

The General Assembly passed Senate Bill 382, which amends Code § 8.01-353, requiring clerks to make available to all counsel of record in a case a copy of the jury panel five full business days before the date a trial is to commence.  This Code section previously only required the clerks to provide a copy of the jury panel 48 hours before the trial started; this often left little time to investigate the backgrounds of prospective jurors.

The General Assembly rejected House Bill 465, which would have allowed a Court, in the event a jury returned a verdict for damages greater than the ad damnum, to amend the complaint to conform the ad damnum to the amount awarded, and to enter a judgment for the verdict amount.  Thus, the current rule – that a plaintiff cannot recover more than the amount sued for – remains in effect.

The General Assembly rejected Senate Bill 363, which would have allowed depositions to be used as a basis for a motion for summary judgment or a motion to strike the evidence.  Virginia retains its uniquely restrictive position as to resolving cases by summary judgment motions and continues to limit tightly the ways in which cases can be dismissed prior to trial.

The General Assembly rejected Senate Bill 366, which would have permitted a defendant to make an “offer of judgment” 10 days before trial, with cost-shifting provisions under certain conditions, similar to the provisions of Federal Rule of Civil Procedure 68.

Eminent Domain

The General Assembly passed House Bill 651, which reinstates a property owner’s option, at the trial of an eminent domain action, to have the Court empanel a jury or appoint a commission.  The General Assembly eliminated the use of commissioners by legislation passed in 2006, thus requiring that all eminent domain cases be tried by a jury of “freeholders” – that is, owners of real property within the forum.  This 2010 legislation reinstates the option, which only the property owner has, unless the owner fails to make this election, in which case the condemnor may elect a commission or jury, or may move that the court itself determine just compensation. 

The General Assembly rejected House Bill 652, which would have provided that any restriction, change, or loss of access to or from property taken under the power of eminent domain shall be considered as an element in assessing damage to the residue as a part of determining the property owner’s just compensation.  Historically, regulation of a landowner’s access to an abutting road or the public’s access to the owner’s property has been considered a proper exercise of the Commonwealth’s police power and, as a consequence, this regulation is not compensable. Restriction or modification of access is considered subordinate to the exercise of police power for traffic control and promotion of the public heath, welfare, and safety. The Supreme Court of Virginia has consistently rejected a landowner’s claim for damage to the residue of the owner’s property, as a part of a just compensation claim, based on (as examples) a limitation of access to and from an abutting road, installation of a center median strip with no crossover to the owner’s property when the project widened the abutting road from 2 to 4 lanes, and a reduction in existing access. E.g., State Highway & Transportation Commissioner v. Lanier Farm, Inc., 233 Va. 506 (1987); State Highway Commissioner v. Easley, 215 Va. 197 (1974); State Highway & Transportation Commissioner v. Howard, 213 Va. 731 (1973); and Wood v. Richmond, 148 Va. 400 (1927). This law has appropriately protected the ability of the Commonwealth and local governments to regulate the flow of traffic and to promote public safety. The complete extinguishment of access as a result of a highway project is compensable (see State Highway & Transportation Commissioner v. Linsly, 223 Va. 437 (1982). Thus, to the extent HB652 addresses the complete loss of access, this bill is unnecessary, because existing law covers that situation. (Property rights organizations have promised that this bill will be reintroduced at the 2011 session of the General Assembly.)

Underinsured Motorists Insurance

The General Assembly passed House Bill 93, which amends Code § 38.2-2206 to relieve a liability insurer of, and to impose upon an underinsured motorist (“UIM”) carrier, the costs of defending a motor vehicle accident case after the liability insurer makes an irrevocable written offer to pay its liability limit and notifies the UIM carrier of the claim and its irrevocable offer. 

The duty to defend, however, remains with the primary liability carrier(s).  While this statute dramatically alters one major economic factor involved in the defense and settlement of auto claims, the text of the amendment leaves unanswered many important questions.  For example, does the new statutory language, which takes effect July 1, 2010, apply to all cases pending on that date, or only to cases filed on or after that date, or only to claims arising on or after that date?  Does it apply to wrongful death claims as well as to the “claim[s] for property damage and bodily injury” expressly mentioned by the new language?  Exactly how is notice to be given under the statute, and who must receive copies of the notice? Can a liability insurer or a UIM insurer give effective notice before an action is filed on a claim? How will the cost-shifting work where multiple underinsured coverages are potentially involved?  How will it work where coverage questions exist? What will be the practical effects of the cost-shifting mechanism on settlement negotiations, mediations, and appeals?  How does the UM carrier’s subrogation right come into play in this cost-shifting scheme?  Much work sorting out these issues lies ahead for Virginia insurers, and for trial and appellate courts.