Laws v. McIlroy

Present: All the Justices

LISA LAWS

v. Record No. 110485 OPINION BY JUSTICE DONALD W. LEMONS
April 20, 2012
CALVIN MCILROY, JR.

CARMEN TINKER

v. Record No. 110646

CALVIN MCILROY, JR.

FROM THE CIRCUIT COURT OF BUCKINGHAM COUNTY
Richard S. Blanton, Judge Designate

In these appeals, we consider whether the Circuit Court of

Buckingham County (the "circuit court") erred when it granted

motions to dismiss filed by the individual defendant Calvin

McIlroy, Jr. ("McIlroy"), the plea in bar filed by Government

Employees Insurance Company ("GEICO"), and the motion to

dismiss lodged by State Farm Mutual Automobile Insurance

Company ("State Farm"), all relying on Code § 8.01-229(E)(3).

I. Facts and Proceedings Below

On May 21, 2008, Lisa Laws ("Laws") and Carmen Tinker

("Tinker") each filed a complaint against McIlroy and Calvin

McIlroy, Sr. ("McIlroy Sr.") in the circuit court for damages

arising out of a motor vehicle accident that occurred on June

8, 2007. The complaints alleged that Laws was a passenger in a

vehicle operated by Tinker and that McIlroy "negligently and

carelessly" operated a vehicle that struck the rear of Tinker's
vehicle. The complaints further alleged that McIlroy Sr., who

owned the vehicle operated by McIlroy, negligently entrusted

his vehicle to McIlroy. GEICO and State Farm, the potential

uninsured/underinsured motorist carriers, were served with a

copy of Laws' complaint and State Farm was served with a copy

of Tinker's complaint. 1

Laws and Tinker each submitted an order of nonsuit to the

circuit court on January 8, 2010, but these orders were not

entered. Both Laws and Tinker indicated in their respective

written statement of facts, filed in the circuit court pursuant

to Rule 5:11(e), that the nonsuit orders were required to be

resubmitted. McIlroy stated in his objections to the

statements of facts that the nonsuit orders forwarded to him

"and presumably to the Court, on or about January 8, 2010 were

not endorsed by counsel for the plaintiff or by defense

counsel." The nonsuit orders were resubmitted on January 28,

2010, with the endorsements of all counsel. The circuit court

entered the nonsuit orders on February 4, 2010.

Significantly, Laws and Tinker filed second, identical

lawsuits in the circuit court on January 19, 2010, before the

1
On February 2, 2009, the circuit court entered nonsuit
orders and dismissed the actions without prejudice as to
defendant McIlroy Sr. These orders are not the subject of
these appeals.
2
nonsuit orders were entered by the circuit court. 2 Thereafter,

McIlroy filed answers to both Laws' and Tinker's second

complaints. GEICO and State Farm also filed answers to the

second complaints pursuant to Code § 38.2-2206(F).

State Farm subsequently filed a motion for leave to amend

its answer to include the statute of limitations as an

affirmative defense. Although the circuit court did not rule

on State Farm's motion to amend, State Farm filed an amended

answer. The only difference between State Farm's answer and

its amended answer was that the amended answer stated "[t]he

Company specifically asserts the defense of statute of

limitations."

McIlroy then filed motions to dismiss the complaints,

arguing that both cases were "barred by the applicable [two

year] statute of limitations and must be dismissed" and that

Code § 8.01-229(E)(3)'s tolling provision did not apply in

either case because it "clearly states that a plaintiff has six

months to refile after the Court has entered a nonsuit order."

(Emphasis added.) McIlroy also argued in his motions to

dismiss that because "no nonsuit order[s] w[ere] entered at the

time the Second Action[s were] filed, [Laws and Tinker] cannot

2
McIlroy Sr. filed special pleas of the statute of
limitations in the second lawsuits. The circuit court entered
orders dismissing the actions against McIlroy Sr. with
prejudice. No appeals from these orders were noted.
3
take advantage of the tolling provisions." Additionally, GEICO

filed a plea in bar and State Farm filed a motion to dismiss,

and both insurance companies raised the same arguments made by

McIlroy in his motions to dismiss.

Thereafter, the circuit court held that Laws' and Tinker's

January 19, 2010 complaints were not timely filed pursuant to

Code §§ 8.01-229(E)(3) and 8.01-243. Consequently, the circuit

court granted McIlroy's motions to dismiss and entered final

orders dismissing the actions with prejudice.

Laws and Tinker timely filed their notices of appeal, and

we granted these appeals on the following assignments of error:

For Lisa Laws v. Calvin McIlroy, Jr., Record No. 110485:

1. The trial court erroneously interpreted Code § 8.01-229
and Virginia law when considering McIlroy's motion to
dismiss and GEICO's plea in bar. As a result, it
improperly dismissed the case.

For Carmen Tinker v. Calvin McIlroy, Jr., Record No. 110646:

1. The trial court erroneously interpreted Code § 8.01-229
and Virginia law when considering McIlroy's and State
Farm's motions to dismiss. As a result, it improperly
dismissed the case.

2. The trial court erroneously considered State Farm's motion
to dismiss without first allowing the amendment of the
company's answer to include the affirmative defense of the
statute of limitations.

II. Analysis

A. Standard of Review

4
 Well-settled principles of statutory review guide our

analysis in this case.

[A]n issue of statutory interpretation is a pure
question of law which we review de novo. When
the language of a statute is unambiguous, we are
bound by the plain meaning of that language.
Furthermore, we must give effect to the
legislature's intention as expressed by the
language used unless a literal interpretation of
the language would result in a manifest
absurdity. If a statute is subject to more than
one interpretation, we must apply the
interpretation that will carry out the
legislative intent behind the statute.

Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96,

104, 639 S.E.2d 174, 178 (2007) (citations omitted). Moreover,

"[t]he plain, obvious, and rational meaning of a statute is to

be preferred over any curious, narrow, or strained

construction." Meeks v. Commonwealth, 274 Va. 798, 802, 651

S.E.2d 637, 639 (2007) (citation and internal quotation marks

omitted).

B. Interpretation of Code § 8.01-229(E)(3)

Laws' and Tinker's negligence actions are governed by the

two-year statute of limitations for personal injuries. Code

§ 8.01-243(A). The statute of limitations begins to run when

the cause of action accrues, which, here, is "the date the

injury is sustained in the case of injury to the person." Code

§ 8.01-230. Laws and Tinker each sued McIlroy for personal

injuries sustained in a motor vehicle accident that occurred on

5
June 8, 2007. Because Laws' and Tinker's causes of actions

"accrued" on June 8, 2007, they had until June 8, 2009, to file

their respective complaints absent an event tolling the statute

of limitations. Code §§ 8.01-230 and -243(A); Code § 1-210(A).

Code § 8.01-229(E)(3) deals generally with the subject of

tolling statutes of limitations and provides, in relevant part,

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, . . . whichever
period is longer.

(Emphasis added.)

Pursuant to Code § 8.01-380(A), a plaintiff is permitted

one nonsuit as a matter of right if "he does so before a

motion to strike the evidence has been sustained or before the

jury retires from the bar or before the action has been

submitted to the court for a decision." Laws and Tinker each

filed their second complaints against McIlroy and the other

defendants named in their initial complaints on January 19,

2010; however, the nonsuit orders in their original cases were

not entered by the circuit court until February 4, 2010, after

Laws and Tinker refiled their respective complaints.

On appeal, Laws and Tinker argue in their briefs that the

"tolling statute does not say within the six months following

6
or after the date of the order; it simply says within six

months of the order." (Emphasis in original.) As a result,

Laws and Tinker also argue that the circuit court erred in

granting McIlroy's motions to dismiss, GEICO's plea in bar, and

State Farm's motion to dismiss because they refiled their

respective complaints on January 19, 2010, which was within six

months of the date the circuit court entered the nonsuit

orders, February 4, 2010. We agree.

Code § 8.01-229(E)(3) states that a "plaintiff may

recommence [an] action within six months from the date of the

order entered by the court." Code § 8.01-229(E)(3) (emphasis

added). "Recommence" means "to undergo a new beginning" or to

"start up again." Webster's Third New International Dictionary

1897 (1993). "From" is "used as a function word to indicate a

starting point." Id. at 913. We have always characterized an

action filed in relation to a nonsuit as a "new" action. A

"new action stands independently of any prior nonsuited

action." Antisdel v. Ashby, 279 Va. 42, 47, 688 S.E.2d 163,

166 (2010).

Additionally, we have recognized the permissibility of two

identical suits pending in different venues in Moore v. Gillis,

239 Va. 239, 389, S.E.2d 453 (1990). In Moore, an inmate

(Moore) sued a correctional officer for personal injuries. The

first suit was brought in the Circuit Court of the City of

7
Richmond. Id. at 240, 389 S.E.2d at 453. The trial court

granted the correctional officer's (Gillis') motion to transfer

venue of the action to the Circuit Court of Brunswick County.

Before the transfer order was entered, Moore filed another

motion for judgment on the same claim in the Circuit Court of

the City of Richmond. Id. Both actions remained pending, one

in the City of Richmond and the other in Brunswick County, for

almost one year. Moore then nonsuited the first action which

had been transferred and was then pending in Brunswick County.

Id. Several months later, the Circuit Court of the City of

Richmond, "acting on its own motion," held that it lacked

jurisdiction to "hear the new proceeding," which was the second

suit filed in Richmond, and dismissed Moore's second action.

Id. (internal quotation marks omitted).

Moore argued on appeal that he had the right to file the

second action because the first one, which had been transferred

to Brunswick County, had not yet been nonsuited. Id. at 241,

389 S.E.2d at 453. In this respect, the Moore case is

identical to the facts of the two cases before us today.

Significantly, we held in Moore, "In this case, the second

proceeding was an existing proceeding, not a new one, brought

before, not after, the nonsuit was taken in the action

previously filed." Id. at 242, 389 S.E.2d at 454 (emphasis in

original). We reversed the judgment of the Circuit Court of the

8
City of Richmond and remanded the case for the second action to

proceed. In the process, we made it clear that it was not

necessary for the first action to have been dismissed or

nonsuited in order for the second action to retain its

validity:

The narrow question in this case . . . is
whether the General Assembly intended the
limitation [of the nonsuit statute] to be so
sweeping in effect that it would prohibit the
prosecution of a proceeding filed before a
nonsuit is taken in a pending action covering
the same claim.

. . . .

[W]e hold that the limitation in question was
not intended to apply to the sort of situation
presented here.

Id. at 241-42, 389 S.E.2d at 454.

Additionally, the word "from" in Code § 8.01-229(E)(3) is

a "starting point," but nothing in the statute requires that

movement from this point has to be forward in time rather than

backward. We need only look at case law to determine that the

word "from" has been frequently used to measure time before a

specific event:

On the day of the hearing, Jack was 36 days away
from his fourteenth birthday. Deahl v. Winchester
Dept. Soc. Servs., 224 Va. 664, 669, 299 S.E.2d
863, 865 (1983).

It is true that two other inmates have been on
death row for several years. The fact remains,
however, that a death sentence may be imposed
within 30 days after conviction and as the record

9
indicated, one inmate, Earl Washington, was
fourteen days away from execution when an
attorney was provided to him through the efforts
of Ms. Deans and Giarratano. It is reasonable to
believe that if they had not found an attorney,
the inmate would have been executed on the date
originally set. Giarratano v. Murray, 836 F.2d
1421, 1430 (4th Cir. 1988) (Hall, J., concurring
in part and dissenting in part).

At the time of marriage, husband was one month
away from mandatory retirement with United
Airlines (United), where he was a pilot for
approximately thirty-five years. Ghods v. Musick,
2005 Va. App. LEXIS 103, at *3 (Va. Ct. App.
March 15, 2005).

S.G. has moved to Florida [and] is now only
months away from her 18th birthday and,
presumably, from her high school graduation.
Camreta v. Greene, 563 U.S. ___, 130 S.Ct. 2020,
2034 (2011).

At the time of the transfer in April 2002, AW was
just months away from graduating from sixth grade
and moving on to the seventh grade at another
school. AW ex rel. Wilson v. Fairfax Cnty. Sch.
Bd., 372 F.3d 674, 684 n.11 (4th Cir. 2004).

When Lily tried to file her claim, the case was
at a preliminary standstill — it had been stayed
in its infancy pending resolution of the criminal
charges and was months away from trial. United
States v. Borromeo, 945 F.2d 750, 754 (4th Cir.
1991).

She was only months away from turning twelve, the
lawful age for paper carriers in Virginia.
Howarth v. Rockingham Pub. Co., 20 F.Supp.2d 959,
968 (W.D. Va. 1998).

At the time of the April 2001 trial, two of
Smitley's dependents were 17 years old – just one
year away from majority – and another was also a
teenager, leaving only one child under the age of
10. U.S. Dept. of Health & Human Servs. v.
Smitley, 347 F.3d 109, 124 (4th Cir. 2003).

10
 Henson was notified on May 14, 1992, that her job
would be eliminated and her department
outsourced, i.e., contracted to an independent
contractor. Plaintiff was fifty years old at the
time, five years away from being able to retire
with full benefits. Henson v. Liggett Group,
Inc., 61 F.3d 270, 273 (4th Cir. 1995).

Arthur Walker replied that he could provide
information concerning when a Navy ship was
approximately one year away from a scheduled
overhaul. United States v. Walker, 796 F.2d 43,
45-46 (4th Cir. 1986).

GEICO, State Farm, and McIlroy rely upon the memorandum

opinion from the United States District Court for the Western

District of Virginia ("District Court") in Payne v. Brake, 337

F.Supp.2d 800 (W.D. Va. 2004), which stated, "Virginia Code

§ 8.01-229(E)(3) clearly states that a plaintiff has six

months to refile after the Court has entered a nonsuit order."

Id. at 803 (emphasis in original). However, the statute

clearly states that the new action must be filed "within six

months from the date of the order" not "after" the date of the

order. Code § 8.01-229(E)(3).

The suits filed by Laws and Tinker on January 19, 2010,

were commenced "within" 6 months from the date of the order of

nonsuit and therefore were governed by the plain and express

language in the provisions of Code § 8.01-229(E)(3).

Accordingly, the trial court erred in granting the motions to

dismiss and the plea based upon the statute of limitations.

11
 As a result of our holding, it is unnecessary to address

Tinker's second assignment of error.

III. Conclusion

We hold that the circuit court erred when it granted

McIlroy's motions to dismiss, State Farm's motion to dismiss,

and GEICO's plea in bar. Accordingly, we will reverse the

judgment of the circuit court and remand for further

proceedings.

Reversed and remanded.

JUSTICE MILLETTE, with whom CHIEF JUSTICE KINSER and JUSTICE
McCLANAHAN join, dissenting.

Today the majority holds that a plaintiff may avail

himself of Code § 8.01-229(E)(3)'s tolling provision so long as

he files his second action no sooner than six months before,

and no later than six months after, the order nonsuiting his

first action is entered. In doing so, the majority ignores the

very principle of statutory construction that it claims to

apply, namely, that "[t]he plain, obvious, and rational meaning

of a statute is to be preferred over any curious, narrow, or

strained construction." Meeks v. Commonwealth, 274 Va. 798,

802, 651 S.E.2d 637, 639 (2007) (internal quotation marks and

citation omitted). I respectfully dissent.

I.

12
 A.

Lisa Laws and Carmen Tinker (collectively, Plaintiffs)

contend, and the majority agrees, that the circuit court erred

in holding that their second actions were time-barred because

Code § 8.01-229(E)(3) does not say that a second action must be

filed "within the six months following or after the date of the

[nonsuit] order." That statute, they maintain, "simply does

not say that filing of the second [action] must follow the

nonsuit order."

The Plaintiffs and the majority ignore the plain language

enacted by the General Assembly in Code § 8.01-229(E)(3). That

statute, in relevant part, 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 . . .
whichever period is longer.

Code § 8.01-229(E)(3) (emphasis added). By using "recommence"

and "from," I believe that the General Assembly made its

intention clear that a plaintiff must file his second action

after the order nonsuiting his first action is entered by the

trial court, in order to take advantage of the statute's

tolling provision.
 Neither "recommence" nor "from" is defined in Code § 8.01-

229. Pursuant to the rules of statutory construction, then,

they must be read in accordance with their "ordinary meaning."

Ruby v. Cashnet, Inc., 281 Va. 604, 609, 708 S.E.2d 871, 874

(2011) (internal quotation marks and citation omitted); see

also Hubbard v. Henrico Ltd. P'ship, 255 Va. 335, 340, 497

S.E.2d 335, 338 (1998) ("When . . . a statute contains no

express definition of a term, the general rule of statutory

construction is to infer the legislature's intent from the

plain meaning of the language used."). "Recommence" means "to

undergo a new beginning," to "start up again," or to "commence

again." Webster's Third New International Dictionary 1897

(1993). And "from" is "used as a function word to indicate a

starting point." Id. at 913.

Although the majority recites these definitions of

"recommence" and "from," it interprets each word in a way that

is at odds with its ordinary meaning. First, the majority

reads "recommence" as meaning nothing more than "commence"

because, as it reads our case law, "an action filed in relation

to a nonsuit [is] a 'new' action." While it is true that a

second action "stands independently of any prior nonsuited

action" insofar as new claims and defenses may be asserted,

Antisdel v. Ashby, 279 Va. 42, 47, 688 S.E.2d 163, 166 (2010),

it does not follow that a plaintiff may gain the benefit of
Code § 8.01-229(E)(3)'s tolling provision by filing his second

action before his first action is actually nonsuited.

On the contrary, Code § 8.01-229(E)(3) speaks only of the

"recommence[ment]" of an action. Logically, a plaintiff may

not "start up again" or "commence again" an action that has not

yet ended. Webster's, at 1897. And an action does not end

until the trial court enters an order nonsuiting (or otherwise

terminating) it. Nash v. Jewell, 227 Va. 230, 237, 315 S.E.2d

825, 829 (1984) ("There is no termination of litigation until

the court enters [a nonsuit] order."). Thus, the Plaintiffs

here could not have "recommence[d]" their actions within the

meaning of the statute when they filed their second actions,

since the orders nonsuiting their first actions had not yet

been entered by the trial court.

In support of its position that a plaintiff may file his

second action before nonsuiting his first action, the majority

relies on Moore v. Gillis, 239 Va. 239, 389 S.E.2d 453 (1990).

In that case, however, the plaintiff filed his second action

within the applicable two-year statute of limitations, and thus

did not need the benefit of Code § 8.01-229(E)(3)'s tolling

provision. Id. at 240, 389 S.E.2d at 453. As a result, the

only question before the Court was whether the nonsuit statute,

Code § 8.01-380(A), limited the plaintiff's choice of venue for

his second action. Id. And the Court held that it did not
because the plaintiff filed his second action before, not

after, nonsuiting his first action. Id. at 241, 389 S.E.2d

454. Our holding in Moore, then, has no bearing on the

question presented in these cases – whether a plaintiff may

avail himself of Code § 8.01-229(E)(3)'s tolling provision if

he files his second action before the order nonsuiting his

first action is entered.

The majority next construes "from." Although the majority

acknowledges that the word marks a "starting point," it goes on

to say that for purposes of Code § 8.01-229(E)(3) movement from

that point may be forward or backward in time. This reading of

"from" is curious, in my view, for it runs contrary to common

usage. One simply does not use the word to count backward in

time. For instance, it would be odd for one to say, "George W.

Bush served as president of the United States from 2009 to

2001." Further, if one wanted to refer to an event that

occurred six months in the past, he would not say, "six months

from today," but rather, "six months ago."

The majority attempts to justify its use of "from" as a

basis for counting backward in time by citing several cases

from this and other courts in which "away from" is used to

calculate time. Not one of those cases, however, supports the

majority's construction of Code § 8.01-229(E)(3). To begin

with, the statute does not say "away from"; it says "from."
Nevertheless, as demonstrated by each case cited by the

majority, "away from" is used to count forward, not backward,

in time. In one of the cited cases, for instance, the United

States Court of Appeals for the Fourth Circuit writes, "Arthur

Walker replied that he could provide information concerning

when a Navy ship was approximately one year away from a

scheduled overhaul." United States v. Walker, 796 F.2d 43, 45-

46 (4th Cir. 1986). Read in context, it is clear that the

Fourth Circuit was using "away from" to refer to a future, not

a past, event. It is no different from one saying, "the

country is roughly three months away from its annual July 4th

celebration of independence." As in Walker, there is no

question that "away from" is being used in this example to look

forward, rather than backward, in time.

The majority's construction of Code § 8.01-229(E)(3),

moreover, fails to account for the language of the nonsuit

statute itself. Code § 8.01-380(A) provides in relevant part:

"After a nonsuit no new proceeding on the same cause of action

or against the same party shall be had in any court other than

that in which the nonsuit was taken." (Emphasis added.) This

language clearly contemplates that the "new proceeding" or

second action is filed after, not before, the order nonsuiting

the first action is entered.
 Finally, the majority criticizes the United States

District Court for the Western District of Virginia for

concluding, in Payne v. Brake, 337 F.Supp.2d 800 (W.D. Va.

2004), that "Code § 8.01-229(E)(3) clearly states that a

plaintiff has six months to refile after the Court has entered

a nonsuit order." Id. at 803. Yet every court that has

construed the statute or addressed it before today has read it

in this manner, including this one. See, e.g., Janvier v.

Arminio, 272 Va. 353, 364, 634 S.E.2d 754, 759 (2006) ("Upon

suffering the first nonsuit, Code § 8.01-229(E)(3) permitted

Janvier to recommence her malpractice action within six months

from June 3, 2002, the date of the entry of that nonsuit

order."). And for good reason: that interpretation is in

accord with common usage, whereas the majority's is not.

B.

The whole point of Code § 8.01-229(E)(3) is to revive

actions that would otherwise be barred by the applicable

statute of limitations. Why then would the General Assembly

want to give a plaintiff up to six months before his first

action is nonsuited, to file his second action? Further, as a

practical matter, how would a plaintiff even know that he is

filing his second action no sooner than six months before his

first action is nonsuited when the starting point for that time

calculation (the entry of the nonsuit order) has yet to be
fixed? It is hard for me to believe that this is what the

General Assembly intended when it enacted the statute, and I am

concerned about the mischief that may result from such an

interpretation. Because our responsibility in interpreting any

statute "is to ascertain and give effect to legislative

intent," Conger v. Barrett, 280 Va. 627, 630, 702 S.E.2d 117,

118 (2010) (internal quotation marks and citation omitted), I

find the majority's holding untenable.

C.

I recognize that reading Code § 8.01-229(E)(3) to mean

what it says – that a plaintiff must file his second action

after the order nonsuiting his first action is entered – leads

to a harsh result in these cases, namely, dismissal, especially

considering that there is no evidence that the other parties

involved were prejudiced by the Plaintiffs' filing of their

second actions before the entry of the orders nonsuiting their

first actions. But it is not this Court's place to amend the

statute under the guise of statutory construction, in order to

avoid what appears to be an unfair result. See Beck v.

Shelton, 267 Va. 482, 488, 593 S.E.2d 195, 198 (2004). Time

and again, the Court has decided cases that led to similar

results because the unambiguous language of a statute commanded

that it do so. As in these cases, relief from such results

rests not in our hands, but in the hands of the General
Assembly – the only branch of government empowered to change

the language of statutes. See, e.g., J. W. Woolard Mechanical

& Plumbing, Inc. v. Jones Dev. Corp., 235 Va. 333, 339, 367

S.E.2d 501, 505 (1988) (discussing amendments that the General

Assembly made to a licensing statute, in order to "avoid the

harsh result dictated by the original form of the statute and

reflected" in the cases construing it).

In sum, I believe that the plain language of Code § 8.01-

229(E)(3) indicates that the General Assembly intended that a

plaintiff file his second action after, not before, the order

nonsuiting his first action is entered by the trial court. Had

the General Assembly intended otherwise, it could have very

easily included language in the statute so providing. For

instance, it could have included language similar to that found

in Rule 5:9, which states that a notice of appeal filed before

the entry of final judgment "is treated as filed on the date of

and after the entry." But it did not. The language of the

statute simply does not support the majority's holding that a

plaintiff may file his second action up to six months before

his first action is nonsuited.

Thus, because the Plaintiffs in these cases filed their

second actions before the orders nonsuiting their first actions

were entered, I find no error in the circuit court's judgments

dismissing the second actions as time-barred.
 II.

Since I do not believe that the circuit court's

interpretation of Code § 8.01-229(E)(3) was in error, I must

address Tinker's second assignment of error. Tinker asserts

that the circuit court erred in granting State Farm Mutual

Automobile Insurance Company's motion to dismiss without first

granting its motion to amend its pleadings to add the statute

of limitations as an affirmative defense. Calvin McIlroy, Jr.,

a defendant below and appellee here, responds that any issues

relating to State Farm's defenses were rendered moot when the

claims against him were dismissed.

I agree with McIlroy. Tinker had no claim against State

Farm, the uninsured/underinsured carrier, unless and until she

obtained a judgment against McIlroy. So once Tinker's claims

against McIlroy were dismissed, State Farm's contingent

liability was eliminated. Consequently, any error that the

circuit court committed in granting State Farm's motion to

dismiss without first granting its motion to amend was

harmless, for there simply could not have been any prejudice to

Tinker.

III.

For the foregoing reasons, I would affirm the circuit

court's judgments in these consolidated cases dismissing the

Plaintiffs' second actions as time-barred.