Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Compton,∗ S.J.
OLUDARE OGUNDE OPINION BY
SENIOR JUSTICE A. CHRISTIAN COMPTON
v. Record No. 050212 April 21, 2006
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
W. Allan Sharrett, Judge
The dispositive question in this appeal is whether the
trial court erred in ruling that an action filed by a prisoner
under the Virginia Tort Claims Act (the Act), Code §§ 8.01-
195.1 to -195.9, is governed by the statute of limitations
applicable to persons confined in state correctional
facilities, as set forth in Code § 8.01-243.2, and not by the
statute of limitations prescribed by Code § 8.01-195.7 for
actions brought under the Act.
Plaintiff Oludare Ogunde is an inmate incarcerated at the
Greensville Correctional Center in Jarratt. In August 2004,
he filed this action under the Act against the Commonwealth
alleging that the Commonwealth's employees negligently
assigned him to an upper bunk bed and, in December 2002,
ordered him to climb down from the bed for roll call when they
knew, or should have known, that he had an injured knee and
could fall. He further alleges that as the result of the
∗
Senior Justice Compton participated in the hearing and
decision of this case before his death on April 9, 2006.
employees' negligence, he fell and injured his back, for which
he seeks recovery in damages.
The plaintiff timely filed the notice of claim required
by Code § 8.01-195.6 of the Act, and likewise timely filed
this action under the Act's statute of limitations, Code
§ 8.01-195.7.
The Commonwealth filed a plea of the statute of
limitations, contending that the action was untimely and was
barred under Code § 8.01-243.2 (the inmate statute), which
limits the time that persons confined in correctional
facilities may bring actions pertaining to conditions of their
confinement. The trial court sustained the plea and dismissed
the action. The plaintiff appeals.
The inmate statute, § 8.01-243.2, provides:
"No person confined in a state or local correctional
facility shall bring or have brought on his behalf
any personal action relating to the conditions of
his confinement until all available administrative
remedies are exhausted. Such action shall be
brought by or on behalf of such person within one
year after [the] cause of action accrues or within
six months after all administrative remedies are
exhausted, whichever occurs later."
The Act's statute of limitations, § 8.01-195.7, provides,
as pertinent: "Every claim cognizable against the
Commonwealth" under the Act "shall be forever barred, unless
within one year after the cause of action accrues to the
claimant the notice of claim required by § 8.01-195.6 is
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properly filed." The statute of limitations then refers to
certain time limits for available administrative remedies and
provides: "All claims against the Commonwealth" under the Act
"shall be forever barred unless such action is commenced
within eighteen months of the filing of the notice of claim."
The Act refers to claims filed by inmates and provides
that an inmate must first exhaust administrative remedies.
Code § 8.01-195.3, in subparagraph (7), requires "[a]ny claim
by an inmate of a state correctional facility" to be excluded
from the Act unless the claimant verifies under oath "that he
has exhausted his remedies under the adult institutional
inmate grievance procedures promulgated by the Department of
Corrections."
Subparagraph (7) further provides: "The time for filing
the notice of tort claim shall be tolled during the pendency
of the grievance procedure."
The question in this case then becomes: When there are
two potentially applicable statutes of limitations, which
statute applies to an inmate's claim under the Act? There is
no dispute that if the Act's statute of limitations applies,
this action was timely filed; if the limitation of the inmate
statute applies the trial court's ruling was correct.
On behalf of the Commonwealth, the Attorney General
contends that the inmate statute applies. He relies on the
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rule of statutory construction "that when one statute speaks
to a subject in a general way and another deals with a part of
the same subject in a more specific manner, the two should be
harmonized, if possible, and where they conflict, the latter
prevails." Virginia Nat'l Bank v. Harris, 220 Va. 336, 340,
257 S.E.2d 867, 870 (1979). He argues that the inmate statute
is more specific as it applies only to prisoners while the Act
applies generally to all plaintiffs.
Continuing, the Attorney General says that both statutes
are clear and unambiguous and that they can be read
harmoniously in the following manner. He notes that the
purpose of the Act is to carve out an exception to the
doctrine of sovereign immunity to allow citizens injured by
state employees' negligence to sue the Commonwealth. He says
that the Act provides relief generally to those coming within
its purview so long as they otherwise comply with the
procedures prescribed in the Act, including those in
subparagraph (7) above. On the other hand, according to the
Attorney General, the inmate statute specifically applies when
"the plaintiff is a prisoner and the subject matter relates to
the conditions of his confinement."
Finally, the Attorney General contends that a later
enacted statute prevails over an earlier one with which it
conflicts. The Act was adopted in 1981. 1981 Acts ch. 449.
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The inmate statute was enacted in 1998. 1998 Acts ch. 596.
According to the Attorney General, the legislature was "well
aware" of the Act's provisions when it enacted the inmate
statute in 1998. Thus, he maintains, "the intent of the
General Assembly was to carve out of the Act a more
restrictive statute of limitations where the plaintiff was a
prisoner suing over the conditions of his confinement."
We do not agree with the Attorney General's several
arguments. At the outset, it should be noted that in the view
we take of the case we do not reach for decision the question
whether this inmate's action involving allegedly negligent
conduct of state employees relates to "the conditions of his
confinement," as that phrase is used in the inmate statute.
For the purposes of this discussion, we will assume, without
deciding, that this action does relate to conditions of
confinement.
The trial court's ruling regarding which statute of
limitations applies was based upon the pleadings and presents
a pure question of law to be reviewed de novo by this Court.
Wilby v. Gostel, 265 Va. 437, 440, 578 S.E.2d 796, 798 (2003).
It is elementary that when construing a statute, courts must
ascertain and give effect to the legislature's intention.
Chase v. DaimlerChrysler Corp., 266 Va. 544, 547, 587 S.E.2d
521, 522 (2003). In determining that intent, the plain
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language of an unambiguous statute will be applied. Brown v.
Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985). And,
rules of statutory construction will be used by the courts to
harmonize enactments when the plain language of two statutes
apparently conflict. See Boynton v. Kilgore, 271 Va. 220,
227, 623 S.E.2d 922, 926 (2006).
Employing these settled principles, we hold that the
Act's statute of limitations applies to this inmate's tort
action seeking recovery in damages for the ordinary negligence
of state employees.
The Act is self-contained, incorporating its own statute
of limitations, which likewise is self-contained. The Act's
limited waiver of sovereign immunity is set forth in § 8.01-
195.3. There, the limited circumstances in which a litigant
can sue the Commonwealth are described. Subparagraph (7) of
that section refers specifically to "[a]ny claim" filed by
inmates, and requires the inmate to first exhaust
administrative remedies.
Significantly, the second sentence of subparagraph (7)
tolls, during the pendency of the grievance (administrative)
procedure, the time for filing the notice of the tort claim.
If the inmate statute were to apply here, its final sentence,
fixing the time limit for filing suit, would impliedly repeal
the second sentence of subparagraph (7) by potentially
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eliminating the tolling provision, as the Attorney General
properly concedes.
We will not attribute to the General Assembly an
intention to impliedly repeal the tolling provided in
subparagraph (7). "The implied repeal of an earlier statute
by a later enactment is not favored. There is a presumption
against a legislative intent to repeal where the later statute
does not amend the former or refer expressly to it." Sexton
v. Cornett, 271 Va. 251, 257, 623 S.E.2d 898, 901 (2006).
Obviously, the inmate statute does not amend the Act nor does
it refer expressly to it.
These intersecting statutes can be harmonized. As the
plaintiff observes, the inmate statute is not limited to tort
actions. It may cover, for example, declaratory judgment
actions, suits for injunctive or other equitable relief, and
mandamus petitions, so long as they relate to the conditions
of the prisoner's confinement. The inmate statute deals with
all classes of litigation. On the other hand, the narrower
Act applies to one type of litigation, tort actions against
the Commonwealth. Even if the tort action relates to
conditions of confinement, the Act nonetheless applies.
Consequently, we conclude that the trial court erred in
sustaining the plea of the statute of limitations and in
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dismissing the action. The judgment appealed from will be
reversed and the case will be remanded for further
proceedings.
Reversed and remanded.
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