Present: All the Justices
SIDNEY HUGHES
v. Record No. 060684 OPINION BY JUSTICE ELIZABETH B. LACY
January 12, 2007
JANE DOE, C/O PRATT MEDICAL
CENTER, LTD., ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
John W. Scott, Jr., Judge
In this appeal, we consider whether the dismissal with
prejudice of claims against an employee on procedural grounds
precludes further proceedings against the employer on a theory
of respondeat superior.
On January 23, 2004, Sidney E. Hughes filed this personal
injury action against "Jane Doe" and her employer, Pratt
Medical Center, Ltd. (Pratt). Hughes alleged that she was
injured in 2002 as a result of Doe's negligence in performing
a venipuncture procedure. Hughes asserted that Pratt, as
Doe's employer, was liable for Doe's negligence on the basis
of respondeat superior.1
In 2005, Hughes learned that Jane Doe was actually
Melissa D. Lucas and filed a motion to amend her
pleadings to substitute Lucas as the defendant. Pratt
filed a special plea in bar and opposition to the motion
for leave to amend, arguing that Hughes' claim against
1
Hughes also claimed negligent training and hiring but
that claim was dismissed and is not before us in this appeal.
Lucas was barred by the statute of limitations. The
trial court granted Hughes' motion for amendment but
sustained Pratt's plea in bar, holding that Hughes'
substitution of Lucas for Jane Doe was not the correction
of a misnomer but the addition of a different party and
did not relate back to the date the action was initially
filed. The trial court concluded that the action against
Lucas was untimely and entered an order dismissing Lucas
with prejudice.
Pratt then filed a motion for summary judgment, arguing
that because Pratt's liability was wholly derivative of Lucas'
negligence, the dismissal of Lucas with prejudice precluded
further action against Pratt. The trial court agreed and
entered an order dismissing the case, stating that "when a
master and servant are sued together and the master's
liability, if any, is solely dependent on the servant's
conduct, a dismissal with prejudice of the servant, even if
the servant is dismissed on procedural grounds, necessarily
exonerates the master and leaves the Court with no choice but
to dismiss the case" against the master. We awarded Hughes an
appeal.
On appeal, Hughes asserts that our jurisprudence does not
require the dismissal of a claim against the employer when the
employer's liability was based solely on a theory of
2
respondeat superior and the claim against the employee was
dismissed on procedural grounds. Citing Roughton Pontiac
Corp. v. Alston, 236 Va. 152, 156-57, 372 S.E.2d 147, 149-50
(1988), Hughes argues that exoneration of the employer is
justified only if the employee has been actually exonerated as
a matter of fact.
In response, Pratt begins with the principle that when
the employer and employee are sued together and the employer's
liability is solely derived from the employee's conduct,
exoneration of the employee exonerates the employer. From
this principle, Pratt postulates that a final judgment
dismissing an action against the employee with prejudice,
regardless of the basis for that dismissal, should have the
same preclusive effect on the employer's liability as a
factual determination by a jury that the employee was not
negligent. Pratt bases its theory on language from our prior
opinion stating that a dismissal with prejudice "is defined as
'an adjudication on the merits, and final disposition, barring
the right to bring or maintain an action on the same claim or
cause,' " operates as res judicata, and is "as conclusive of
the rights of the parties as if the suit had been prosecuted
to a final disposition adverse to the plaintiff." Reed v.
Liverman, 250 Va. 97, 99-100, 458 S.E.2d 446, 447 (1995). We
reject Pratt’s position for the following reasons.
3
First, the derivative liability principle recited by
Pratt is applied when a verdict or other finding that the
employee was not negligent is the basis for exoneration of the
employer in the same case, see, e.g., Roughton, 236 Va. at
156-57, 372 S.E.2d at 150; Rakes v. Fulcher, 210 Va. 542, 549,
172 S.E.2d 751, 757 (1970); Whitfield v. Whittaker Mem’l
Hosp., 210 Va. 176, 183, 169 S.E.2d 563, 568 (1969); Virginia
State Fair Ass'n v. Burton, 182 Va. 365, 368, 28 S.E.2d 716,
717-18 (1944), or in subsequent litigation through the
application of the res judicata bar, see, e.g., Ward v.
Charlton, 177 Va. 101, 115, 12 S.E.2d 791, 796 (1941). We
have never applied this principle to claims against an
employer when the employee was dismissed with prejudice on a
plea in bar or other procedural matter. This limited
application reflects the fact that the crux of respondeat
superior liability is a finding that the employee was
negligent.
Second, under Virginia law a plaintiff pursuing relief
against an employer on a theory of respondeat superior is not
required to file an action against the employee alleging the
employee was negligent. See, e.g., Plummer v. Center
Pyschiatrists, Ltd., 252 Va. 233, 234-35, 476 S.E.2d 172, 173
(1996) (plaintiff filed suit only against employer seeking
recovery for tort of employee on basis of respondeat
4
superior); Sayles v. Piccadilly Cafeterias, Inc., 242 Va. 328,
329, 410 S.E.2d 632, 633 (1991) (same). No judgment against
the employee individually is necessary for recovery; only a
finding that the employee was negligent.
To adopt Pratt's position requires that we consider the
dismissal of Hughes' claim with prejudice based on a plea in
bar to be an affirmative finding that Lucas was not negligent.
We have never embraced a theory that such a dismissal is in
fact a decision on the merits. While a dismissal with
prejudice based on a plea in bar extinguishes the viability of
the claim against the dismissed party, it does not do so based
on the merits of the claim. Gilbreath v. Brewster, 250 Va.
436, 440, 463 S.E.2d 836, 837 (1995) ("[A] dismissal with
prejudice on the basis of a plea in bar, is conclusive as to
the rights of those parties, even though the substantive claim
of the plaintiff has not been litigated on the merits."); see
also Lofton Ridge, LLC v. Norfolk S. Ry. Co., 268 Va. 377,
380, 601 S.E.2d 648, 650 (2004) (noting that dismissal with
prejudice based on a plea in bar "did not decide the case on
the merits").
In this case, the dismissal with prejudice of Lucas was
not an affirmative finding of non-negligence; it merely
terminated Hughes' ability to hold Lucas liable for any
alleged negligence. To conclude that the dismissal with
5
prejudice in this case terminates Hughes' ability to pursue a
claim against Pratt, in the absence of any finding that Lucas
was not negligent, goes well beyond our established
jurisprudence.2
For these reasons, we conclude that the order dismissing
the claims against Lucas with prejudice for failure to comply
with the statute of limitations was not a holding on the
merits of Lucas’ alleged negligence and therefore neither
exonerated Pratt nor otherwise precluded Hughes from pursuing
her claim against Pratt for Lucas' negligence on a theory of
respondeat superior. Accordingly, we will reverse the
judgment of the trial court and remand the case for further
proceedings.
Reversed and remanded.
JUSTICE KINSER, with whom JUSTICE AGEE joins, dissenting.
I conclude the circuit court’s judgment dismissing with
prejudice the claim against the servant, Melissa D. Lucas, was
“as conclusive of the rights of the parties as if the suit had
been prosecuted to a final disposition.” Virginia Concrete
Co. v. Board of Supervisors, 197 Va. 821, 825, 91 S.E.2d 415,
2
In Shutler v. Augusta Health Care for Women, P.L.C., 272
Va. 87, 630 S.E.2d 313 (2006), we did not need to address
whether the dismissal of claims against an employee on
procedural grounds exonerated the employer because the order
in that case expressly authorized further proceedings against
the employer.
6
418 (1956). That judgment thus exonerated Lucas’ employer,
Pratt Medical Center, LTD., from liability. See Roughton
Pontiac Corp. v. Alston, 236 Va. 152, 156, 372 S.E.2d 147, 149
(1988). For these reasons, I respectfully dissent and would
affirm the circuit court’s judgment dismissing the claim
against Pratt.
Today, the majority declines to follow this Court’s well
established principle that a dismissal of a defendant or claim
“‘with prejudice’” constitutes “ ‘an adjudication on the
merits, and final disposition, barring the right to bring or
maintain an action on the same claim or cause.’ ” Reed v.
Liverman, 250 Va. 97, 99, 458 S.E.2d 446, 447 (1995) (quoting
Black’s Law Dictionary 469 (6th ed. 1990)); accord Dalloul v.
Agbey, 255 Va. 511, 512, 499 S.E.2d 279, 281 (1998); Virginia
Concrete, 197 Va. at 825, 91 S.E.2d at 418. Instead, the
majority reasons that the circuit court’s dismissal with
prejudice based on the running of the statute of limitations
was not tantamount to an affirmative finding on the merits
that the servant was not negligent. Citing Gilbreath v.
Brewster, 250 Va. 436, 463 S.E.2d 836 (1995), and Lofton
Ridge, LLC v. Norfolk Southern Railway Co., 268 Va. 377, 601
S.E.2d 648 (2004), the majority concludes that “[w]hile a
dismissal with prejudice based on a plea in bar extinguishes
7
the viability of the claim against the dismissed party, it
does not do so based on the merits of the claim.”
In my view, the flaw in the majority’s analysis lies in
its focus on the nature of the plea in bar rather than on the
dismissal with prejudice. I agree that sustaining a plea in
bar based on the running of the applicable statute of
limitations is not, in fact, a finding that a servant is not
negligent. However, a dismissal with prejudice, regardless of
the underlying reason for the dismissal, is nevertheless
“generally as conclusive of the parties’ rights as if the
action had been tried on the merits with a final disposition
adverse to the plaintiff.” Dalloul, 255 Va. at 514, 499
S.E.2d at 281; see also Virginia Concrete, 197 Va. at 825, 91
S.E.2d at 418 (“a judgment of dismissal which expressly
provides that it is ‘with prejudice’ operates as res judicata
and is as conclusive of the rights of the parties as if the
suit had been prosecuted to a final disposition adverse to the
plaintiff”).
That a dismissal with prejudice is treated as an
adjudication of a claim on the merits is reflected in this
Court’s decision in Virginia Concrete. There, a county board
of supervisors filed a suit to enjoin the defendant from
operating its concrete plant. 197 Va. at 822, 91 S.E.2d at
416. The board alleged that the operation of the plant
8
violated certain zoning ordinances of the county. Id. Acting
without the board’s consent and in violation of the terms of
his employment as the board’s legal counsel, the board’s
attorney moved the trial court for a voluntary dismissal of
the injunction suit and endorsed an order dismissing the suit
“with prejudice to your complainant’s right to bring another
suit on the same cause.” Id. The board subsequently filed
another suit on the same claim and alleged, in part, that the
dismissal with prejudice of the first suit was a nullity and
should be set aside. Id. In its answer, the defendant
asserted that the dismissal with prejudice of the first suit
“was a complete adjudication of the matters and things
involved . . . and was res judicata as to all matters and
things alleged in that suit and in the [second] suit.” Id. at
823, 91 S.E.2d at 417.
On appeal, we agreed with the defendant and explained the
effect of the dismissal with prejudice of the first suit:
“[I]t would decide that what the defendant was doing was not a
violation of the zoning ordinance and that the county could
not thereafter maintain a suit under the terms of that
ordinance to stop the defendant or its successors from such
operations.”1 Id. at 827, 91 S.E.2d at 419. In other words,
1
We ultimately held that the county board of supervisors
was not bound by the dismissal with prejudice of the first
9
the dismissal with prejudice of the first suit was the same as
an adjudication on the merits of the claim. See also Reed,
250 Va. at 99–100, 458 S.E.2d at 447 (holding that a dismissal
with prejudice stemming from the settlement of an action
rather than from an adjudication of the claim barred
prosecution of the second action on the same claim).
The court in North American Specialty Insurance Co. v.
Boston Medical Group, 906 A.2d 1042 (Md. Ct. Spec. App. 2006),
addressed arguments similar to those raised in the case before
us. There, the defendant asserted that the dismissal of the
plaintiff’s first action on the basis of the statute of
limitations precluded the plaintiff’s second action under the
doctrine of res judicata. Id. at 1045. The plaintiff
countered that the doctrine of res judicata did not bar the
suit because, “[i]n the absence of express authority from the
[county,] the consent of its attorneys did not bind it or
deprive it of a right to have the ‘with prejudice’ feature of
the decree set aside.” Virginia Concrete, 197 Va. at 829, 91
S.E.2d at 421.
Similarly, in Shutler v. Augusta Health Care for Women,
P.L.C., 272 Va. 87, 630 S.E.2d 313 (2006), this Court held
that, because of certain language in the trial court’s order,
the dismissal of a claim against a servant with prejudice did
not “equate to an adjudication on the merits so as to preclude
or limit [the plaintiff’s] ability to litigate the matters she
alleged in her motion for judgment, including issues related
to [the servant’s] allegedly negligent conduct, in pursuing
her claims against [the master].” Id. at 93, 630 S.E.2d at
316. Until today, these two cases are the only instances in
which this Court has held that a dismissal with prejudice did
not operate as an injunction on the merits.
10
second action because a dismissal based on the statute of
limitations was not an adjudication on the merits. Id. In
affirming the trial court’s dismissal of the second action on
the basis of res judicata, the appellate court distinguished
between a dismissal on a procedural ground and a dismissal
predicated on an affirmative defense:
The principle underlying these cases is that a
dismissal on a procedural ground is not a determination
by the court that the plaintiff cannot maintain a cause
of action; rather, it is a defect in practice, procedure,
or form that may be corrected in the second lawsuit to
allow the cause of action to proceed. On the other hand,
a dismissal of a claim because of an affirmative defense,
like sovereign immunity . . . precludes a plaintiff from
ever prosecuting that claim. We believe that the
affirmative defense of the statute of limitations falls
in that latter category. In dismissing a complaint that,
on its face, is barred by the statute of limitations, the
court is deciding that the plaintiff can never maintain
that cause of action. Consequently, when a circuit court
. . . grants a motion to dismiss on the grounds that the
complaint, on its face, is barred by the statute of
limitations, such dismissal is an adjudication on the
merits for res judicata purposes.
Id. at 1050 (citations omitted); see also DeGraff v. Smith,
157 P.2d 342, 343 (Ariz. 1945) (plaintiff’s voluntary
dismissal of servant with prejudice meant the master could not
be held liable).
Nevertheless, the majority relies on language from this
Court’s decisions in Gilbreath and Lofton Ridge to conclude
that the dismissal with prejudice of the claim against Lucas
did not have the same effect as an adjudication on the merits
11
of the claim. Upon examining the issues in those cases, I
conclude those two decisions are not dispositive of the issue
currently before the Court and that the language quoted by the
majority, when viewed in context, does not support the
majority’s conclusion.
In Gilbreath, the issue on appeal was “whether the
dismissal of an action pursuant to Supreme Court Rule 3:3 for
lack of timely service is with or without prejudice.” 250 Va.
at 438, 463 S.E.2d at 836. The two plaintiffs, who had
effected service of process on the defendants more than one
year after the commencement of their respective actions,
argued that a dismissal under Rule 3:3 must be without
prejudice for two reasons, because “the dismissal is not based
on the merits of the claim [and because] a dismissal with
prejudice would conflict . . . with Code § 8.01-229(E)(1).”2
Id. at 439, 463 S.E.2d at 837. In the context of rejecting
the first argument, the Court pointed out that “not all
dismissals terminating a cause of action without determining
the merits are dismissals without prejudice.” Id. at 440, 463
S.E.2d at 837. As an example, the Court noted that a
dismissal based on a plea of sovereign immunity is a dismissal
2
Code § 8.01-229(E)(1) contains a tolling provision for
an action that “for any cause abates or is dismissed without
determining the merits.”
12
with prejudice even though the merits of the underlying claim
are not actually adjudicated. Id. Thus, the Court held that
“a dismissal under Rule 3:3 is not precluded from being a
dismissal with prejudice even though the merits of the
plaintiff’s claim were not determined.” Id.
In rejecting the second argument that a dismissal with
prejudice would conflict with Code § 8.01-229(E)(1), the Court
held that “for purposes of Code § 8.01-229(E)(1), a dismissal
with prejudice is a determination on the merits.” Id. at 440,
463 S.E.2d at 837–38. The Court reiterated: “A dismissal with
prejudice generally is ‘as conclusive of the rights of the
parties as if the suit had been prosecuted to a final
disposition adverse to the plaintiff,’ and it not only
terminates the particular action, ‘but also the right of
action upon which it is based.’ ” Id. at 440, 463 S.E.2d at
837 (quoting Virginia Concrete, 197 Va. at 825, 91 S.E.2d at
418).
Thus, contrary to the majority’s view, Gilbreath does not
stand for the proposition that a dismissal with prejudice
based on a plea in bar is not treated as an adjudication on
the merits. Instead, the Court merely explained that a
dismissal under Rule 3:3, like a dismissal based on a plea in
bar, operates as a dismissal with prejudice even though the
merits of the underlying claim are not in fact adjudicated.
13
The Court has always recognized that, in many situations,
there is not an actual adjudication on the merits of a claim
when it is dismissed with prejudice. But, as the Court has
said repeatedly, a dismissal with prejudice “is as conclusive
of the rights of the parties as if the suit had been
prosecuted to a final disposition adverse to the plaintiff.”
Virginia Concrete, 197 Va. at 825, 91 S.E.2d at 418 (emphasis
added); accord Dalloul, 255 Va. at 514, 499 S.E.2d at 281;
Reed, 250 Va. at 100, 458 S.E.2d at 447.
The decision in Lofton Ridge is also inapposite. That
case involved the application of the doctrine of judicial
estoppel, not the effect of a dismissal with prejudice. 268
Va. at 379, 601 S.E.2d at 649. In reciting the case’s
procedural history, the Court noted that the defendant had
filed a plea in bar alleging that the plaintiff’s claims were
barred by the doctrines of judicial estoppel and election of
remedies. Id. at 380, 601 S.E.2d at 650. Continuing, the
Court pointed out that the trial court, after a two-day trial,
did not decide the merits of the case, but sustained the plea
in bar. Id. In my view, the procedural history in Lofton
Ridge, as set forth in the preceding sentence, does not stand
for the proposition asserted by the majority, i.e., that a
dismissal with prejudice on a plea in bar does not operate as
an adjudication on the merits.
14
The majority does not dispute the principle that “where
master and servant are sued together in tort, and the master’s
liability, if any, is solely dependent on the servant’s
conduct, a verdict for the servant necessarily exonerates the
master.” Roughton Pontiac, 236 Va. at 156, 372 S.E.2d at 149;
see also Santen v. Tuthill, 265 Va. 492, 499, 578 S.E.2d 788,
792 (2003); Rakes v. Fulcher, 210 Va. 542, 549, 172 S.E.2d
751, 757 (1970). The majority, however, concludes that this
longstanding precedent applies only when there is a verdict or
other finding that a servant is not negligent. According to
the majority, “[w]e have never applied this principle . . .
where the employee was dismissed with prejudice on a plea in
bar or other procedural matter.” But, this Court’s decisions
have not limited the application of the foregoing legal
principle to a verdict or affirmative finding that a servant
is not negligent. Moreover, until today, the Court has not
had an occasion to decide whether a dismissal with prejudice
based on a plea in bar constitutes an adjudication on the
merits.
Finally, the majority relies on the premise that “a
plaintiff pursuing relief against an employer on a theory of
respondent superior is not required to file an action against
the employee alleging the employee was negligent.” I do not
disagree with that statement, but, in this case, Sidney E.
15
Hughes chose to file the action against “Jane Doe” and her
employer, Pratt, and alleged that Pratt was liable for Doe’s
negligence on the basis of respondeat superior. Hughes then
amended her pleadings to substitute Lucas in the place of Doe.
Thus, Hughes is bound by the consequences of her pleadings.
For these reasons, I conclude that the circuit court’s
sustaining the plea in bar based on the statute of limitations
and dismissing with prejudice the claim against Lucas, the
servant, operated as an adjudication on the merits of that
claim. See Reed, 250 Va. at 99, 458 S.E.2d at 447. That
adjudication necessarily exonerated the master, Pratt. See
Roughton Pontiac, 236 Va. at 156, 372 S.E.2d at 149. Thus, I
respectfully dissent and would affirm the circuit court’s
judgment dismissing the claim against Pratt.
16