Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons,
Agee, JJ., and Compton, S.J.
CRAIG E. BAUMANN, ET AL.
OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR.
April 22, 2005
v. Record No. 041908
ALLEN WAYNE CAPOZIO
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Michael P. McWeeny, Judge
I.
In this appeal, we consider whether parents waived their
cause of action against an alleged tortfeasor for medical
expenses they incurred on behalf of their minor child.
II.
Craig E. Baumann and Carol R. Baumann are the parents of
Tyler C. Baumann. Tyler, when he was 17 years of age, was
injured during a fight with defendant, Allen Wayne Capozio.
Craig Baumann and Carol Baumann, as next friends of Tyler,
filed an amended motion for judgment in the circuit court.
They alleged that Tyler incurred medical bills and other
damages proximately caused by Capozio's tortious acts.
During that litigation, Capozio propounded
interrogatories to Craig and Carol Baumann requesting that
they itemize "each and every medical expense . . . [that Tyler
was] claiming in this lawsuit." Carol R. Baumann signed a
sworn interrogatory answer as "Tyler C. Baumann, a minor by
his next friend, Carol R. Baumann," and she answered, "See
Exhibit A attached . . . ." Exhibit A contained an itemized
description of medical bills that Carol Baumann and Craig
Baumann had incurred on behalf of Tyler that totaled
$19,230.65. Copies of the medical bills were attached to the
exhibit. Plaintiffs filed a supplemental exhibit list that
included additional medical bills for a total of $26,507.15.
The exhibit list was filed 15 days before the trial date, and
Tyler was then 18 years old.
Tyler, after reaching the age of majority, settled his
claims against Capozio before the trial date. The circuit
court entered an order dismissing the case with prejudice.
On October 25, 2002, Tyler executed a "full and final
release of all claims" for $75,000 with Allstate Insurance
Company on behalf of Capozio. The release states in relevant
part, "[i]t is agreed that this [r]elease shall apply to all
known injuries and damages, as well as those unknown and
unanticipated, resulting from said incident, casualty or
event, including that certain lawsuit styled Tyler C. Baumann
v. Allen Wayne Capozio, At Law No. 200042, in the Circuit
Court of Fairfax County, Virginia." Neither Craig Baumann nor
Carol Baumann was a party to the release.
Craig Baumann and Carol Baumann (plaintiffs) filed a
motion for judgment against Capozio in the circuit court.
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Plaintiffs sought to recover medical expenses in the amount of
$22,287.15 plus interest and costs that they had incurred on
behalf of their son for injuries he received as a result of
Capozio's tortious conduct. Capozio filed a plea in bar and
asserted that plaintiffs' claim for medical bills in this case
had been settled, paid, and dismissed in the prior case and
that the present action was "barred by legal doctrines of
accord and satisfaction, waiver, release, novation, collateral
estoppel, unclean hands, estoppel, assignment, emancipation
and fraud."
The circuit court considered the pleadings in both
lawsuits, the release, certain exhibits, and memoranda of law
submitted by the litigants. The circuit court concluded that
the plaintiffs had waived their claims to recover medical
expenses in favor of their son. The circuit court sustained
the plea in bar and entered a judgment that dismissed the
plaintiffs' case with prejudice. Plaintiffs appeal.
III.
Plaintiffs argue that the circuit court erred when it
dismissed their motion for judgment because the evidence is
insufficient to establish that they waived their right to
recover medical expenses that they incurred on behalf of their
son before he reached the age of majority. Capozio responds
that plaintiffs waived their right to recover these medical
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expenses when they served as next friends in the lawsuit that
they filed against him when their son was a minor. We
disagree with Capozio.
It is well-settled in this Commonwealth that:
"[I]n case of an injury to an unemancipated infant
by wrongful act[,] two causes of action ordinarily
arise. One cause of action is on behalf of the
infant to recover damages for pain and suffering,
permanent injury and impairment of earning capacity
after attaining majority. The other is on behalf of
the parent for loss of services during minority and
necessary expenses incurred for the infant's
treatment."
Moses v. Akers, 203 Va. 130, 132, 122 S.E.2d 864, 865-66
(1961); accord Watson v. Daniel, 165 Va. 564, 573, 183 S.E.
183, 187 (1936). Additionally, an infant is not entitled to
recover medical expenses from a tortfeasor unless: (i) the
infant has paid or has agreed to pay the medical expenses;
(ii) the infant is responsible for the medical expenses by
reason of emancipation or the death or incompetency of the
infant's parents; (iii) the parents have waived their right of
recovery in favor of the infant; or (iv) the recovery of the
medical expenses is permitted by statute. Commonwealth v.
Lee, 239 Va. 114, 116-17, 387 S.E.2d 770, 771 (1990); Moses,
203 Va. at 132, 122 S.E.2d at 866. The only issue before us
in this appeal is whether the plaintiffs in this action have
impliedly waived their claim to recover medical expenses that
they incurred on behalf of their minor child.
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In accordance with our well-established precedent, the
plaintiffs in this case were entitled to recover medical
expenses that they incurred on behalf of their infant son for
injuries caused by the tortfeasor's conduct unless the parents
have waived their right of recovery in their son's favor. We
have repeatedly stated that waiver "is the voluntary,
intentional abandonment of a known legal right, advantage, or
privilege." Fox v. Deese, 234 Va. 412, 425, 362 S.E.2d 699,
707 (1987). Essential elements of the doctrine include both
knowledge of the facts basic to the exercise of the right and
the intent to relinquish that right. Id., Weidman v. Babcock,
241 Va. 40, 45, 400 S.E.2d 164, 167 (1991). Accord Virginia
Tech. v. Interactive Return Service, 267 Va. 642, 651-52, 595
S.E.2d 1, 6 (2004); Chawla v. BurgerBusters, Inc., 255 Va.
616, 622-23, 499 S.E.2d 829, 833 (1998); Stuarts Draft
Shopping Ctr. v. S-D Assoc., 251 Va. 483, 489-90, 468 S.E.2d
885, 889-90 (1996).
We have discussed the standard of proof that must be
satisfied to establish that an implied waiver has occurred.
We have stated in several cases that "[w]aiver of a legal
right will be implied only upon clear and unmistakable proof
of the intention to waive such right for the essence of waiver
is voluntary choice." Chawla, 255 Va. at 623, 499 S.E.2d at
833; Weidman, 241 Va. at 45, 400 S.E.2d at 167; Fox, 234 Va.
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at 426, 362 S.E.2d at 707; Coleman v. Nationwide Life Ins.
Co., 211 Va. 579, 583, 179 S.E.2d 466, 469 (1971); Roenke v.
Virginia Farm Bureau Ins. Co., 209 Va. 128, 135, 161 S.E.2d
704, 709 (1968); May v. Martin, 205 Va. 397, 404, 137 S.E.2d
860, 865 (1964); Creteau v. Phoenix Assurance Co., 202 Va.
641, 644, 119 S.E.2d 336, 339 (1961).
However, we have also stated, in another series of cases,
that "[t]he party relying on a waiver has the burden to prove
the essentials of such waiver . . . by clear, precise and
unequivocal evidence." Interactive Return Service, 267 Va. at
652, 595 S.E.2d at 6; Stuarts Draft Shopping Ctr., 251 Va. at
490, 468 S.E.2d at 890; Utica Mutual v. National Indemnity,
210 Va. 769, 773, 173 S.E.2d 855, 858 (1970).
We recognize that this Court has used different legal
phrases to describe the burden of proof necessary to establish
an implied waiver – "the party relying on a waiver has the
burden to prove the essentials of the waiver by clear, precise
and unequivocal evidence" and "waiver of a legal right will be
implied only upon clear and unmistakable proof of the
intention to waive such right." Moreover, we stated in a case
involving an express waiver that "[a] waiver must be express,
or, if it is to be implied, it must be established by clear
and convincing evidence." Pysell v. Keck, 263 Va. 457, 460,
559 S.E.2d 667, 679 (2002). In order to promote clarity and
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uniformity in our jurisprudence, in this case, and in future
cases, we will require that a litigant relying on an implied
waiver prove the elements of such waiver by clear and
convincing evidence.
Capozio failed to satisfy this standard of proof. Even
though Tyler Baumann's mother signed an interrogatory in her
capacity as next friend that identified medical bills as
damages that Tyler's parents had incurred while he was an
infant, the parents lost control of that litigation when their
son reached the age of majority and signed a release that
resulted in the settlement of that lawsuit. Plaintiffs in
this appeal were not parties to the release, and they had not
filed a lawsuit in their own name to recover damages that they
had incurred. We hold that Capozio failed to prove by clear
and convincing evidence that the plaintiffs impliedly waived
their right to recover any medical expenses that they incurred
for the treatment of their son proximately caused by Capozio's
alleged tortious conduct.
IV.
Accordingly, we will reverse the judgment of the circuit
court and remand this case for a trial on the merits. Capozio
asserted during oral argument that he had raised other
defenses in his plea in bar in the circuit court and that the
court failed to consider those defenses. He may not assert
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those defenses in this appeal because he failed to assign
cross-error to the circuit court's failure to rule upon those
defenses. Rule 5:18(b); Loving v. Hayden, 245 Va. 441, 445,
429 S.E.2d 8, 11 (1993). On remand, however, Capozio may
reassert those defenses. See Nassif v. Board of Supervisors,
231 Va. 472, 480-81, 345 S.E.2d 520, 525 (1986).
Reversed and remanded.
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