PRESENT: Koontz, Kinser, Lemons, and Mims, JJ., and Carrico,
Russell and Lacy, S.JJ.
JERRY K. ADDISON, ADMINISTRATOR
OF THE ESTATE OF JOSEPH A. ADDISON,
DECEASED, ET AL.
OPINION BY
v. Record No. 092361 JUSTICE WILLIAM C. MIMS
January 13, 2011
WILLIAM JURGELSKY, JR., M.D., ET AL.
FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
Patrick R. Johnson, Judge
In this appeal we consider whether a wrongful death action
brought by one of two co-administrators of an estate was
properly dismissed as time-barred when the second co-
administrator was joined as a plaintiff after the expiration of
the statute of limitations.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
The decedent, Joseph A. Addison (“Joseph”), died on April
3, 2004 after having been treated at Clinch Valley Medical
Center. Joseph’s parents, Jerry K. Addison (“Jerry”) and
Shirley B. Addison (“Shirley”) (collectively, “the Addisons”),
qualified in the circuit court as co-administrators of his
estate. On March 21, 2006, Jerry, as administrator, filed a
complaint pursuant to the Wrongful Death Act, Code § 8.01-50,
alleging medical malpractice against Joseph’s treating
physicians, William Jurgelsky, Jr., M.D., Antonio M. Peralta,
M.D., Thomas Cortellesi, D.O., Edna A. Griffenhagen, M.D., and
Galen-Med, Inc. Jurgelsky, Peralta, Cortellesi, and Galen-Med,
Inc. filed motions to abate due to the nonjoinder of Shirley as
co-administrator, asserting that “[a] single administrator of
an estate that has two co-administrators has no right, standing
or authority to file an action at law without the other co-
administrator joining in the case.” The circuit court denied
the motion to abate and granted Jerry leave to file an amended
complaint joining Shirley as a plaintiff. Jerry filed an
amended complaint including Shirley as a party plaintiff and
naming only Jurgelsky, Peralta, and Cortellesi as defendants
(collectively the “Defendants”) on September 12, 2008.
The Defendants then filed pleas of the statute of
limitations to the amended complaint. They asserted, inter
alia, that the two-year limitation period set forth in Code
§ 8.01-244 was not tolled prior to Shirley’s joinder because an
action by only one of two co-administrators was a nullity.
Consequently, the limitations period had expired. Following
argument, the circuit court granted the pleas and dismissed the
amended complaint with prejudice. We awarded the Addisons this
appeal.
II. ANALYSIS
This appeal presents purely legal questions of statutory
construction which we review de novo. Conger v. Barrett, 280
Va. 627, 630, ___ S.E.2d ___, ___ (2010). There are two
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assignments of error. The Addisons argue that the circuit
court erred in ruling that Jerry lacked standing as a single
co-administrator to maintain a wrongful death action.
Alternatively, they argue that Shirley, as a necessary party,
could be joined as a party plaintiff after expiration of the
relevant statute of limitations. We must first determine
whether a single co-administrator may file an action under the
Wrongful Death Act.
Code § 8.01-50(B), in pertinent part, states, “Every such
action under this section shall be brought by and in the name
of the personal representative of such deceased person within
the time limits specified in § 8.01-244.” In this action, the
specified time limit is two years. See Code § 8.01-244. The
Addisons argue that this language does not require that all co-
administrators must join as plaintiffs and that a single co-
administrator may maintain a wrongful death action. We
disagree.
We look to the plain meaning of the statutory language,
Conger, 280 Va. at 632, ___ S.E.2d at ___, and presume that
“ ‘the legislature chose, with care, the words it used when it
enacted the relevant statute.’ ” City of Virginia Beach v. ESG
Enters., 243 Va. 149, 153, 413 S.E.2d 642, 644 (1992) (quoting
Barr. v. Town & Country Props., 240 Va. 292, 295, 396 S.E.2d
672, 674 (1990)). If the General Assembly had intended for any
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one of two or more administrators to pursue a wrongful death
action, it could have used the indefinite articles “a” or “any”
rather than the definite article “the” prior to the term
“personal representative.” By using the term “the personal
representative,” while knowing that more than one individual
may qualify as administrator or executor, the General Assembly
intended a unity of action whether there is one personal
representative or more than one.
This interpretation is consistent with this Court’s
holding in a context other than the Wrongful Death Act. In
Beavers v. Beavers, 185 Va. 418, 39 S.E.2d 288 (1946), we
stated, “The court never forces a joint administration, and for
an obvious reason – because it is necessary for the
administrators to join in every act – there might be a complete
contrariety of action, and it would be in the power of any one
of them to defeat the whole administration.” Id. at 424, 39
S.E.2d at 291 (citations and internal quotation marks omitted). 1
As the circuit court accurately noted in its letter opinion in
this case, “independent actions by co-administrators would
force defendants to litigate two or more separate suits on the
same issue and may result in multiple recoveries for the same
1
See also William H. Bryson, Bryson on Virginia Civil
Procedure § 5.02[3](4th ed. 2005 & Supp. 2010) (“Co-executors
and co-administrators must all join or be joined as co-
plaintiffs or co-defendants”).
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cause of action.” We agree that Code § 8.01-50 precludes such
a result.
However, the circuit court based its dismissal upon the
conclusion that Jerry did not have standing to sue on behalf of
his decedent. That conclusion was error: an administrator (or
executor) is the only person with standing to sue under the
Wrongful Death Act. See Code § 8.01-50(B). Jerry was not a
plaintiff without statutory authority to act; rather, the
correct inquiry was whether Jerry could maintain the action
solely or whether Shirley also was a necessary party plaintiff.
Having determined that a single co-administrator may not
maintain a wrongful death action, we now turn to the remaining
issue, whether the absent co-administrator may be joined as a
party plaintiff pursuant to Code § 8.01-5 after expiration of
the statute of limitation.
In its letter opinion, the circuit court found that
Shirley was a necessary party and that Jerry lacked standing to
sue alone. The circuit court relied upon Cook v. Radford
Community Hospital, Inc., et al., 260 Va. 443, 451, 536 S.E.2d
906, 910 (2000), to rule that whether “an original party lacks
standing is not an issue of misjoinder or non-joinder, rather a
necessary party may not be added or a new plaintiff substituted
for an original party that lacked standing to sue.”
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However, Cook is distinguishable from this case. In Cook,
the sole plaintiff had no statutory authority to file the
action, whether individually or in concert with another. Id.
at 448, 536 S.E.2d at 908. Consequently, to maintain the
action, the only plaintiff would have to be dismissed and a new
plaintiff substituted in her stead. Since she had no authority
to act under any circumstances, the Court ruled that her filing
had to be dismissed. Id.
Code § 8.01-5(A) states, in pertinent part:
No action or suit shall abate or be defeated by
the nonjoinder or misjoinder of parties,
plaintiff or defendant, but whenever such
nonjoinder or misjoinder shall be made to appear
by affidavit or otherwise, new parties may be
added and parties misjoined may be dropped by
order of the court at any time as the ends of
justice may require.
The plain language of this statute would permit the joinder of
Shirley Addison as an additional party plaintiff at any time as
the ends of justice may require. The statute is remedial in
nature and therefore should be liberally construed. Carroll v.
Johnson, 278 Va. 683, 693, 685 S.E.2d 647, 652 (2009).
The Defendants rely on this Court’s decisions in
Mendenhall v. Douglas L. Cooper, Inc., 239 Va. 71, 387 S.E.2d
468 (1990), and Ahari v. Morrison, 275 Va. 92, 654 S.E.2d 891
(2008), in support of their assertion that when a claim is
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time-barred as to a necessary party the entire claim must be
dismissed. These cases are distinguishable.
Mendenhall involved the application of Virginia’s
mechanic’s lien statute. The suit to enforce the lien named
only the property developer as a party defendant and it omitted
subsequent purchasers and deed of trust trustees and
beneficiaries, all of whom are necessary parties defendant
pursuant to the statute. Id. at 75, 387 S.E.2d at 470. This
Court ruled that the necessary parties defendant could not be
added and the “suit, time-barred as to any necessary party,
must be dismissed because such necessary party is not subject
to the court’s jurisdiction.” Id.
In Ahari, the plaintiff filed a motion pursuant to Rule
1:8 for leave to amend her complaint to add additional parties
defendant. 275 Va. at 93-94, 654 S.E.2d at 892. The motion
was filed prior to expiration of the relevant statute of
limitation but was granted by order entered after expiration of
the statute. Id. The trial court dismissed the amended
complaint as time-barred. Id. at 95, 654 S.E.2d at 893. This
Court affirmed, stating that when a new party defendant is
joined, “the operative filing date” was when the trial court
granted leave to amend. Id. at 96, 654 S.E.2d at 893-94.
Unlike Mendenhall and Ahari, in this case the absent
necessary party was a plaintiff who sought to be joined to a
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pending claim rather than a defendant who would have resisted
such joinder. This distinction is fully consistent with the
policy that underlies statutes of limitation, which are
intended to protect non-parties from becoming subject to
judicial claims when the passage of time may have increased the
difficulty of defending such claims. See, e.g., Carter v.
Carter, 232 Va. 166, 172, 349 S.E.2d 95, 98 (1986) (recognizing
that a purpose of statutes of limitation is to “protect
defendants against the problems of proof following lapse of a
lengthy period of time”); Burns v. Board of Supervisors, 227
Va. 354, 359, 315 S.E.2d 856, 859 (1984) (same). In Burns, we
explained that “statutes of limitation serve an important and
salutary purpose. Without them, defendants could find
themselves at the mercy of unscrupulous plaintiffs who hoard
evidence that supports their position while waiting for their
prospective opponents to discard evidence that would help make
a defense.” Id.
The mere addition of a co-administrator (or co-executor)
of an estate as a necessary party plaintiff who willingly
submits to the court’s jurisdiction does not offend the public
policy underlying the statutes of limitation and does not
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prejudice any defendant in an action bringing claims only of
the estate. 2
We hold that Code § 8.01-5 permits the joinder of a co-
administrator to a wrongful death action under Code § 8.01-50
when the other co-administrator is already a party plaintiff
and the claims in the suit do not change as a result of the
joinder. We further hold that Jerry’s initial filing, without
his co-administrator, of the wrongful death claim tolled the
statute of limitations for that claim. See Code § 8.01-244(B).
The circuit court therefore erred in sustaining the Defendants’
plea of the statute of limitations. We will reverse and remand
for further proceedings in accord with this opinion.
Reversed and remanded.
2
The present case presents no prospect of a counterclaim
against the newly added co-administrator, so the Court has no
occasion in this opinion to comment on the statute of
limitation issues that might arise in that circumstance. See
Code § 8.01-233.
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