PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, Mims, and
Powell, JJ., and Russell, S.J.
GENEVA LAWSON MCKINNEY, ADMINISTRATOR OF
THE ESTATE OF GENE L. McKINNEY, DECEASED
OPINION BY
v. Record No. 111869 SENIOR JUSTICE CHARLES S. RUSSELL
September 14, 2012
VIRGINIA SURGICAL ASSOCIATES, P.C.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Theodore J. Markow, Judge
This appeal involves interpretation of the tolling
provisions of Code § 8.01-229(E)(3), as it affects the running
of the statute of limitations after a nonsuit. The circuit
court decided the case on the pleadings and the facts are stated
as set forth therein and in a written statement of facts signed
by the trial judge pursuant to Rule 5:11(e).
Facts and Proceedings
On July 3, 2007, Gene L. McKinney (the decedent) was taken
by ambulance to a hospital emergency room. He was treated by
physicians who were employees and agents of Virginia Surgical
Associates, P.C. (the defendant). The defendant performed
abdominal surgery and continuing care through August 6, 2007.
On July 21, 2009, the decedent filed a civil action for
medical malpractice against the defendant in the Circuit Court
of the City of Richmond. 1 On March 19, 2010, decedent's counsel
filed a suggestion of death, reporting that the decedent had
died on February 24, 2010. The decedent's widow, Geneva Lawson
McKinney, (the plaintiff) having qualified as administrator of
the decedent's estate in Henrico County, moved to be substituted
as plaintiff and for leave to file an amended complaint,
converting the pending personal injury action to an action for
wrongful death. The court granted both motions and ordered her
amended complaint filed on May 7, 2010.
After further discovery, the plaintiff concluded that there
was insufficient evidence to prove that the defendant's
negligence was the cause of the decedent's death. She took a
voluntary nonsuit of her wrongful death action on January 19,
2011.
On March 10, 2011, the plaintiff filed in the same court,
against the same defendant, the present action for personal
injuries suffered by the decedent arising out of the same
alleged negligence, as a survival action pursuant to Code
§ 8.01-25. The plaintiff's survival action was therefore filed
more than two years after the defendant's alleged negligence
occurred, but less than six months after the plaintiff's nonsuit
1
The complaint also named Gastrointestinal Specialists,
Inc. as a defendant but later nonsuited that party.
2
of her action for wrongful death. The defendant filed a plea in
bar, asserting the two-year statute of limitations applicable to
actions for personal injury prescribed by Code § 8.01-243(A).
The court heard the plea on briefs and arguments of counsel,
sustained the plea and dismissed the case. We awarded the
plaintiff an appeal.
Analysis
This appeal presents a pure question of law involving the
interpretation of a statute. We review such questions de novo.
Conger v. Barrett, 280 Va. 627, 630, 702 S.E.2d 117, 118 (2010).
Code § 8.01-25 abolished the ancient common-law rule that
personal actions die with the plaintiff by providing that every
cause of action shall survive the death of either party. If the
plaintiff dies as a result of the injury for which the action is
pending, the pending action must be amended to become an action
for wrongful death pursuant to Code § 8.01-56. In those
circumstances, the wrongful death action is the plaintiff's sole
remedy. Centra Health, Inc. v. Mullins, 277 Va. 59, 77, 670
S.E.2d 708, 717 (2009).
If, on the other hand, the plaintiff dies as a result of a
cause other than the injury for which he sued during his
lifetime, the pending action survives by virtue of Code § 8.01-
25 and may be carried on by his personal representative. In
that situation the personal representative may recover such
3
damages as the deceased plaintiff would have been entitled to
recover, except punitive damages.
Code § 8.01-229(E)(3), upon which both parties rely,
provides:
If a plaintiff suffers a voluntary nonsuit as
prescribed in § 8.01-380, 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 of the
order entered by the court, or within the
original period of limitation, or within the
limitation period as provided by subdivision B
1, whichever period is longer. This tolling
provision shall apply irrespective of whether
the action is originally filed in a federal or
a state court and recommenced in any other
court, and shall apply to all actions
irrespective of whether they arise under
common law or statute.
This section must be read together with Code § 8.01-380,
the nonsuit statute to which it refers and with which it is in
pari materia. See e.g., E.C. v. Virginia Dep't of Juvenile
Justice, 283 Va. 522, 537, 722 S.E.2d 820, 835 (2012) ("It is a
cardinal rule of statutory construction that statutes dealing
with a specific subject must be construed together in order to
arrive at the object sought to be accomplished.") (quoting
Alston v. Commonwealth, 274 Va. 759, 769, 652 S.E.2d 456, 462
(2007), and Prillaman v. Commonwealth, 199 Va. 401, 406, 100
S.E.2d 4, 7 (1957)). Subsection A of that statute provides that
after a nonsuit, "no new proceeding on the same cause of action
4
or against the same party shall be had in any court other than
that in which the nonsuit was taken." Subsection B provides
that a plaintiff may take one nonsuit as a matter of right "to a
cause of action or against the same party to the proceeding."
Subsection D provides that after a counterclaim has been filed,
a party "shall not be allowed to nonsuit a cause of action
without the consent of the adverse party." (Emphasis added.)
Statutes dealing with the same subject matter must be read
together so as to adhere to the legislative intent underlying
them and to permit them to operate together without conflict.
City of Lynchburg v. English Constr. Co., 277 Va. 574, 584, 675
S.E.2d 197, 202 (2009). Application of that principle makes it
clear that the terms "such action" and "his action," as used in
Code § 8.01-229(E)(3), refer to the same subject as that of Code
§ 8.01-380 and are intended to mean "cause of action."
Therefore, if the plaintiff's survival action arose out of the
same cause of action as her nonsuited wrongful death action, it
is entitled to the benefit of the tolling provision of Code
§ 8.01-229(E)(3) and is timely because it was filed within six
months after the nonsuit. If it arose out of a different cause
of action, it was barred by the two-year statute of limitations
for personal injury claims.
A "cause of action" is the set of operative facts which,
under the substantive law, gives rise to a "right of action."
5
Roller v. Basic Constr. Co., 238 Va. 321, 327, 384 S.E.2d 323,
326 (1989). "Cause of action" and "right of action" are not
synonymous. A "right of action" cannot arise until a cause of
action exists because a right of action is a remedial right to
presently enforce an existing cause of action. Van Dam v. Gay,
280 Va. 457, 460, 699 S.E.2d 480, 481 (2010).
In the context of the present case, the cause of action was
the defendant's alleged medical malpractice resulting in injury
to the decedent. From this cause of action, two rights of
action arose: (1) the decedent's right to bring an action for
personal injury during his lifetime, which survived to be
carried on by his personal representative after his death, and
(2) the personal representative's right to bring an action for
wrongful death. 2
The circuit court erred in holding that the "survival
action is a different cause of action than the wrongful death
action" and that it was therefore not saved by the tolling
provision of Code § 8.01-229(E)(3). There was a single cause of
action. A right of action to enforce it was timely if brought
2
Although the defendant argued otherwise in the circuit
court, on appeal it agrees with this analysis, but relies on
defenses of waiver, election of remedies, and failure to
preserve a right to bring a survival action. We find no merit
in these contentions.
6
within six months after entry of the order granting the nonsuit.
The plaintiff filed the present action within that period.
Conclusion
For the reasons stated, we will reverse the judgment of the
circuit court and remand the case to that court for further
proceedings consistent with this opinion.
Reversed and remanded.
7
McKinney v. Virginia Surgical Associates
Combined Opinion