Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Koontz, JJ., and Poff, Senior Justice
ALICE L. WARD
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 961338 February 28, 1997
INSURANCE COMPANY OF NORTH AMERICA, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Theodore J. Markow, Judge
In this appeal, we consider whether the plaintiff's
cause of action against the defendants is barred by the
applicable statute of limitations.
The relevant facts are not in dispute. Alice L. Ward
recovered a judgment against Waverly Leon Charity on October
23, 1986. Ward filed a motion for judgment against
Insurance Company of North America and its successor in
interest, CIGNA Property & Casualty Insurance Company, on
October 23, 1991. Ward alleged that Charity was insured
pursuant to the provisions of an automobile liability
insurance policy issued by Insurance Company of North
America. Ward asserted that she is a statutory beneficiary
of the insurance policy and that the defendants breached the
policy by failing to satisfy her judgment against Charity.
Ward nonsuited that action on June 10, 1994.
On December 12, 1994, Ward commenced the present
proceeding by filing another motion for judgment based on
the same cause of action. The defendants filed a special
plea in bar, asserting, inter alia, that Ward's cause of
action was barred by the statute of limitations because her
1991 motion for judgment was not filed within five "365-day
periods" from the date she obtained her judgment against
Charity. The trial court entered an order sustaining the
plea, and we awarded Ward an appeal. 1
The litigants agree that the plaintiff's alleged cause
of action is governed by the five-year statute of
limitations contained in Code § 8.01-246, which states in
relevant part:
"[A]ctions founded upon a contract . . . shall be
brought within the following number of years next
after the cause of action shall have accrued:
. . . .
2. In actions on any contract which is not
otherwise specified and which is in writing and
signed by the party to be charged thereby, or by
his agent, within five years whether such writing
be under seal or not. . . ."
Ward asserts that her motion for judgment is timely
because she filed her original motion for judgment within
the five-year statute of limitation period and, when she
took her voluntary nonsuit pursuant to Code § 8.01-380, she
was entitled to recommence her action within six months from
the date of the nonsuit order, June 10, 1994. Code § 8.01-
2
229(E)(3). Continuing, Ward contends that December 10,
1
We find no merit in the defendants' argument that Ward's
appeal should be dismissed because she failed to object to
the entry of the trial court's order. The record is clear
that Ward argued to the trial court that her cause of action
was not barred by the statute of limitations. Ward was not
required to make a formal exception to the trial court's
order because the court was aware of her objections. Code
§ 8.01-384.
2
Code § 8.01-229(E)(3) states in relevant part:
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1994, which is six months from the date of the nonsuit
order, was a Saturday and, therefore, Code § 1-13.3:1
permitted her to file her motion for judgment on Monday,
December 12, 1994. 3
The defendants, relying upon Frey v. Jefferson
Homebuilders, Inc., 251 Va. 375, 467 S.E.2d 788 (1996),
assert that Ward was required to file her action within five
"365-day periods" from the date she obtained the October 23,
1986 judgment against Charity. The defendants state that,
because "the year 1988 was a leap year[,] Ward actually
filed her suit [within] four 365 day periods plus one 366
"If a plaintiff suffers a voluntary nonsuit as
prescribed in § 8.01-380, the statute of
limitations with respect to such action shall be
tolled by the commencement of the nonsuited action,
and the plaintiff may recommence his action within
six months from the date of the order entered by
the court, or within the original period of
limitation, or within the limitation period as
provided by subdivision B 1, whichever period is
longer."
3
Code § 1-13.3:1 states:
"When the last day fixed by statute, or by
rule of the Supreme Court of Virginia for the
commencement of any proceeding, for any paper to be
served, delivered or filed, or for any other act to
be done in the course of judicial proceedings falls
on a Saturday, Sunday, legal holiday, or any day on
which the clerk's office is closed as authorized by
statute, the proceeding may be commenced, the paper
may be served, delivered or filed and the act may
be done on the next day that is not a Saturday,
Sunday or legal holiday, or day on which the
clerk's office is closed as authorized by statute."
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day period. . . . Since Ward filed suit on October 23,
[1991,] she did not file within the five years provided in
. . . Code . . . § 8.01-246(2)."
We disagree with the defendants. Frey simply has no
application here. In Frey, the primary issue we considered
was whether a statutory extension of time in Code § 1-13.3:1
applied to Rule 3:3 which states in pertinent part:
"No judgment shall be entered against a
defendant who was served with process more than
one year after the commencement of the action
against him unless the court finds as a fact that
the plaintiff exercised due diligence to have
timely service on him."
Michael B. Frey and Patricia A. Frey filed a motion for
judgment against Jefferson Homebuilders, Inc. on November
12, 1993. One year and two days later, counsel for the
Freys requested the clerk to issue process, which was
delivered to Jefferson's registered agent. Jefferson filed
a motion to dismiss the action on the ground that Rule 3:3
precluded the entry of a judgment against it because
Jefferson had been served with process more than one year
after the action was commenced. The trial court sustained
the motion.
On appeal, the Freys argued that the clerk's office was
closed on Friday, November 11, 1994, a legal holiday, and
did not reopen until Monday, November 14, 1994, and,
therefore, they were entitled to the statutory extension
specified in Code § 1-13.3:1. Agreeing with the Freys, we
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stated that "Rule 3:3 effectively 'fixe[s]' the 365th day
after commencement of the action as the 'last day' for the
motion for judgment 'to be served [or] delivered,' thereby
subjecting the one-year period of Rule 3:3 to the saving
provision in Code § 1-13.3:1." 251 Va. at 378-79, 467
S.E.2d at 790.
The defendants misinterpret our statements in Frey. We
did not hold in Frey, as the defendants suggest, that one
year is equivalent to 365 days. Indeed, such an
interpretation ignores the fact that a leap year contains
366 days. Furthermore, the defendants' interpretation of
our statement in Frey is contrary to Code § 1-13.33, which
defines the word year: "Unless otherwise expressed, the
word 'year' shall be construed to mean a calendar
year. . . ."
Applying Code § 1-13.33, we hold that courts in this
Commonwealth must utilize calendar years and not "365-day
periods" when computing whether a statute of limitations has
expired. As Ward points out, her motion for judgment was
filed within five calendar years from the date her cause of
action against the defendants accrued, and she was entitled
to both the tolling provision in the nonsuit statute, Code
§ 8.01-229(E)(3), and the statutory time extension contained
in Code § 1-13.3:1. Accordingly, we will reverse the
judgment of the trial court and remand this case for further
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proceedings.
Reversed and remanded.
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