Present: All the Justices
SHARON M. NEWMAN
v. Record No. 042699 OPINION BY JUSTICE CYNTHIA D. KINSER
September 16, 2005
LEONARD WALKER, JR.
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
Pursuant to Code § 8.01-229(D), a statute of
limitations is tolled when a defendant uses any direct or
indirect means to obstruct the filing of an action. In
this case, we conclude that a defendant’s affirmative
misrepresentation about his identity at the scene of an
automobile accident invokes this statute and tolls the
running of the statute of limitations for the ensuing
personal injury action if the defendant designed or
intended his misrepresentation to obstruct the filing of
the action. Thus, we will reverse the judgment of the
circuit court sustaining a plea of the statute of
limitations.
RELEVANT FACTS AND PROCEEDINGS
Sharon M. Newman allegedly sustained personal injuries
on June 17, 2000 when a truck owned by Hastings Village,
Inc. struck the motor vehicle she was operating. At the
scene of the accident, the driver of the Hastings Village
truck identified himself to a police officer as Kareem A.
Brooks. Relying on that information, Newman filed a motion
for judgment on June 11, 2002 against Brooks and Hastings
Village. Both defendants filed grounds of defense,
admitting that there was an incident involving the
specified vehicles but denying that Brooks was the driver
of the Hastings Village truck.
About a month after the accident, the liability
insurance carrier for Hastings Village contacted Hastings
Village about the accident and reported that Brooks was
driving the company’s vehicle. Hastings Village advised
the insurance carrier that it did not employ anyone by the
name of Kareem A. Brooks. Hastings Village then confronted
one of its employees named William Walker, Jr., and Walker
admitted that he had been driving the Hastings Village
truck at the time of the accident.
In September 2003, soon after Newman had answered
interrogatories and asked to depose Brooks, she learned for
the first time that Brooks was not the driver of the
Hastings Village truck. On October 1, 2003, the attorney
for the defendants advised Newman’s attorney that an
investigator had found out that Walker had stolen Brooks’
identification, had taken the Hastings Village truck
without permission, and was driving it at the time of the
accident.
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With this new information, Newman moved to file an
amended motion for judgment naming William Walker, Jr., as
a defendant and as the driver of the Hastings Village
truck. Brooks and Hastings Village admitted in their
grounds of defense to the amended motion for judgment that
Walker had identified himself as Brooks at the scene of the
accident. After attempting unsuccessfully to serve process
on Walker, Newman discovered that Walker’s name was
actually Leonard Walker, Jr. On February 26, 2004, the
circuit court permitted Newman to change the name of the
defendant-driver from William Walker, Jr., to Leonard
Walker, Jr.1
Nationwide Mutual Insurance Company, Newman’s
uninsured motorist carrier, then moved to dismiss the
action pursuant to the applicable two-year statute of
limitations. See Code § 8.01-243(A). Nationwide asserted
that Walker was not named as a defendant in the action
until January 12, 2004, more than two years after the date
of the accident. Newman responded that, pursuant to the
provisions of Code § 8.01-229(D), the statute of
limitations was tolled during the period when Walker
“falsely and fraudulently identified himself to both the
1
On June 4, 2004, the circuit court granted Newman’s
request to nonsuit Brooks and Hastings Village, leaving
Leonard Walker, Jr. as the sole defendant.
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plaintiff and the . . . police officer as Kareem Brooks.”
Walker’s use of false identification in violation of Code
§ 18.2-204.1(B), according to Newman, obstructed her
ability to file this action against the proper defendant.
Relying on Grimes v. Suzukawa, 262 Va. 330, 551 S.E.2d
644 (2001), the circuit court, in a letter opinion,
concluded that Newman “failed [to] present any evidence to
establish that Mr. Walker’s conduct constituted a direct or
indirect means to obstruct the filing of [Newman’s] tort
action[] within the meaning of Code § 8.01-229(D).” Thus,
the circuit court granted Nationwide’s motion to dismiss.
Newman appealed to this Court.
ANALYSIS
The sole issue on appeal is whether Walker’s
misrepresentation by using stolen identification at the
scene of the accident was a “direct or indirect means
[used] to obstruct the filing of [this] action,” thereby
tolling the statute of limitations.2 Code § 8.01-229(D).
2
Amicus curiae in support of Newman urges this Court
to reverse the judgment of the circuit court on the theory
that there was an equitable tolling of the statute of
limitations due to Walker’s actions and that Walker is
therefore estopped from asserting the bar of the statute of
limitations. Newman relied only on the provisions of Code
§ 8.01-229(D) before the circuit court. Thus, we will not
address the issue of estoppel. In her opposition to the
plea of the statute of limitations filed in the circuit
4
The provisions of Code § 8.01-229(D) state that “[w]hen the
filing of an action is obstructed by a defendant’s . . .
using any other direct or indirect means to obstruct the
filing of an action, then the time that such obstruction
has continued shall not be counted as any part of the
period within which the action must be brought.”
Newman argues that she should receive the benefit of
the tolling provision in Code § 8.01-229(D) because she was
the victim of Walker’s fraudulent misrepresentations about
his identity upon which she relied in filing this action.
Citing Hawks v. Dehart, 206 Va. 810, 146 S.E.2d 187 (1966),
Newman contends that Walker’s concealment of relevant facts
was the sort of fraud involving moral turpitude sufficient
to toll the running of the statute of limitations.
Finally, Newman distinguishes this Court’s decision in
Grimes by arguing, among other things, that Walker’s giving
false information to the police officer at the scene of the
accident, unlike the defendant’s wearing a mask in Grimes,
was an affirmative misrepresentation about his identity.
In response, Walker contends that our decision in
Grimes is controlling. Citing Hawks and Culpeper National
Bank v. Tidewater Improvement Co., Inc., 119 Va. 73, 89
court, Newman did, however, characterize Walker’s conduct
at the scene of the accident as fraudulent.
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S.E. 118 (1916), Walker argues that, under provisions of
Code § 8.01-229(D), a statute of limitations is tolled when
a defendant conceals the existence of a cause of action.
According to Walker, Newman knew at the time of the
accident that she had a cause of action just as the
plaintiff in Grimes did when the defendant sexually
assaulted her. Like the defendant in Grimes, Walker
contends that, although he concealed his identity, he did
not do so in order to obstruct Newman’s filing of this
action. Thus, in Walker’s view, the statute of limitations
was not tolled.
We do not agree with Walker’s argument implying that a
statute of limitations is tolled under Code § 8.01-229(D)
only when a defendant acts to conceal the existence of a
cause of action. See Baker v. Zirkle, 226 Va. 7, 12, 307
S.E.2d 234, 236 (1983) (suggesting that the provisions of
Code § 8.01-229(D) apply when a defendant prevents service
of process). In Culpeper National Bank, one of the cases
cited by Walker, the plaintiff brought an action of
assumpsit against a bank and its president to recover the
proceeds of a note that had been delivered to the bank to
be discounted by it. 119 Va. at 74, 89 S.E. at 118. The
bank pled two statutes of limitations. Id. at 75, 89 S.E.
at 119. The issue with regard to the plea was whether the
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bank, “by any indirect way or means, obstructed the
prosecution of [the] suit” by participating in some
fraudulent act “which kept the plaintiff in ignorance of
its rights.”3 Id. at 82-83, 89 S.E. at 121. Quoting Foster
v. Rison, 58 Va. (17 Gratt.) 321, 345 (1867), we stated
that ignorance of the existence of a debt was not
sufficient to toll a statute of limitations unless that
ignorance came about from the fraud of the defendant.
Culpeper Nat’l Bank, 119 Va. at 83, 89 S.E. at 121; accord
Jones v. United States Fidelity & Guaranty Co., 165 Va.
349, 360-61, 182 S.E. 560, 564-65 (1935). In that context,
we then explained the kind of concealment that would toll
the statute of limitations:
“Mere silence by the person liable is not concealment,
but there must be some affirmative act or
representation designed to prevent, and which does
prevent, the discovery of the cause of action.
Concealment of a cause of action preventing the
running of limitations must consist of some trick or
artifice preventing inquiry, or calculated to hinder a
discovery of the cause of action by the use of
ordinary diligence, and mere silence is insufficient.
There must be something actually said or done which is
directly intended to prevent discovery. Mere silence
3
The relevant portion of the tolling provision in
effect at that time, Code § 2933 (1904), which is a
predecessor to Code § 8.01-229(D), stated that “[w]here any
such right . . . shall accrue against a person who . . . by
any other indirect way or means shall obstruct the
prosecution of such right the time that such obstruction
may have continued shall not be computed as any part of the
time in which the said right might or ought to have been
prosecuted.”
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or concealment by a debtor may not, without
affirmative misrepresentation, toll the running of the
statute. Where, however, a debtor by actual fraud
keeps his creditor in ignorance of the cause of
action, the statute does not begin to run until the
creditor had knowledge, or was put upon inquiry with
means of knowledge that such cause of action had
accrued. Fraudulent concealment must consist of
affirmative acts of misrepresentation, mere silence
being insufficient. The fraud which will relieve the
bar of the statute must be of that character which
involves moral turpitude, and must have the effect of
debarring or deterring the plaintiff from his action.”
Culpeper Nat’l Bank, 119 Va. at 83-84, 89 S.E. at 121
(quoting 2 H.G. Wood, Wood on Limitations 1422 (4th ed.
1916)).
Subsequent to Culpeper National Bank, we decided
several more cases involving the question whether a statute
of limitations had been tolled because a defendant had
concealed a cause of action. For example, in Hawks, the
other case cited by Walker, the plaintiff filed an action
against a doctor for damages allegedly caused by the
doctor’s negligence in leaving a surgical needle in the
plaintiff’s neck during an operation. 206 Va. at 811, 146
S.E.2d at 187. The plaintiff alleged that the doctor had
“knowingly, actively and negligently conceal[ed] from the
plaintiff the fact of the presence of such needle in her
neck.” Id. at 814, 146 S.E.2d at 190. Again explaining
the character of fraud necessary to toll the statute of
limitations, we stated that it must involve moral turpitude
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and the “defendant must intend to conceal the discovery of
the cause of action by trick or artifice.”4 Id. (quoting
Richmond Redevelopment & Hous. Auth. v. Laburnum Constr.
Corp., 195 Va. 827, 840, 80 S.E.2d 574, 582 (1954)). We
concluded that the plaintiff had not established “such
trick or artifice or purpose” by the doctor. Id.; accord
Horn v. Abernathy, 231 Va. 228, 234, 343 S.E.2d 318, 321
(1986); Morriss v. White, 146 Va. 553, 570-71, 131 S.E.
835, 840 (1926); see also Mid-Atlantic Bus. Communications,
Inc. v. Virginia Dep’t of Motor Vehicles, 269 Va. 51, 58,
606 S.E.2d 835, 839 (2005) (defendant’s continuing to
consider plaintiff’s claim and failing to respond to
certain letters was not ”an affirmative act . . . designed
to thwart” the plaintiff’s ability to file a lawsuit within
the six-month limitations period).
In all these cases, the focus was whether the
defendant had used any direct or indirect means to conceal
the cause of action, thereby tolling the statute of
limitations. We had no occasion to address Code § 8.01-
229(D) or its ancestor statutes in regard to what other
4
When we decided Hawks, the relevant tolling provision
was set forth in Code § 8-33 (1957), a predecessor to Code
§ 8.01-229(D). In pertinent part, that former section
tolled a statute of limitations when a defendant used “any
other indirect way or means [to] obstruct the prosecution”
of an action.
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direct or indirect means would obstruct the filing of an
action and thus toll a statute of limitations.
However, we did so in Grimes. There, the issue was
not whether the defendant had concealed the cause of action
but whether, by wearing a mask when he committed the
crimes, he had obstructed the plaintiff’s filing an action
against him. 262 Va. at 332, 551 S.E.2d at 646. We
concluded that the defendant had not done so because the
“use of the mask was intended to conceal his identity and
not to obstruct [the plaintiff’s] filing of an action.”
Id. Thus, the applicable statute of limitations was not
tolled under the provisions of Code § 8.01-229(D). Id. In
reaching this decision, we stated that “[a] plaintiff who
seeks to rely upon the tolling provision in Code § 8.01-
229(D) must establish that the defendant undertook an
affirmative act designed or intended, directly or
indirectly, to obstruct the plaintiff’s right to file her
action.” Id.
While it is true that Walker’s use of stolen
identification at the scene of the accident concealed his
identity as the wearing of a mask did in Grimes, there is
nevertheless an important distinction between the two
cases. When Walker gave the police officer stolen
identification, he affirmatively misrepresented his
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identity. The defendant in Grimes never misrepresented
anything about his identity; he merely concealed it with
the mask. In other words, Walker “undertook an affirmative
act.” Id.
Although our earlier cases dealt with concealment of
the existence of a cause of action, the principles
enunciated there are applicable in this case. Fraudulent
concealment, whether of a cause of action or of a
defendant’s true identity, “ ‘must consist of affirmative
acts of misrepresentation. . . . The fraud which will
relieve the bar of the statute must be of that character
which involves moral turpitude, and must have the effect of
debarring or deterring the plaintiff from his action.’ ”
Culpeper Nat’l Bank, 119 Va. at 83, 89 S.E. at 121 (quoting
Wood, supra, at 1422).
Walker’s actions at the scene of the accident involved
this type of fraud. Thus, we conclude that the circuit
court erred in holding that Walker’s conduct did not
constitute a direct or indirect means to obstruct Newman’s
filing of this action. However, before a final resolution
can be made as to whether the applicable statute of
limitations barred Newman’s action against Walker, the
circuit court must make two factual determinations that
were not previously necessary to its judgment sustaining
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the plea of the statute of limitations: (1) whether
Walker’s use of stolen identification was “designed or
intended, directly or indirectly, to obstruct” Newman’s
filing of this action, Grimes, 262 Va. at 332, 551 S.E.2d
at 646; and (2) if so, the period of time such obstruction
continued, see Code § 8.01-229(D).
CONCLUSION
For these reasons, we will reverse the judgment of the
circuit court and remand this case for further proceedings.
Reversed and remanded.
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