Riddett v. Virginia Electric & Power Co. ( 1998 )

Present: All the Justices
PATRICIA RIDDETT, ADMINISTRATRIX
OF THE ESTATE OF
CLIFFORD RIDDETT, DECEASED
OPINION BY JUSTICE A. CHRISTIAN COMPTON
v. Record No. 970297 January 9, 1998
VIRGINIA ELECTRIC AND POWER COMPANY
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
This is an appeal from a summary judgment entered in an
action brought under the Death By Wrongful Act statutes, Code
§§ 8.01-50 through -56. The question is whether the trial court
correctly ruled that the plaintiff's action was time barred when
a nonsuited action was not refiled within the time prescribed by
the wrongful death statute of limitations in effect when the
cause of action accrued. In other words, we must determine
whether the trial court correctly refused to apply retroactively
a tolling provision amendment to the wrongful death statute of
limitations enacted after accrual of the instant cause of action.
The chronology is important. On July 3, 1987, Clifford
Riddett was electrocuted while attempting to install ground
anchors adjacent to his mobile home in Gloucester County. On
June 29, 1989, with four days remaining on the applicable two-
year statute of limitations, appellant Patricia Riddett,
Administratrix of the Estate of Clifford Riddett, Deceased, filed
in the court below a wrongful death action, the original action,
against appellee Virginia Electric and Power Company and others.
The plaintiff sought judgment for damages as a result of the
defendants' alleged negligence in causing the decedent's death.
On January 11, 1991, while the original action was still
pending, this Court decided Dodson v. Potomac Mack Sales & Serv.,
Inc., 241 Va. 89, 400 S.E.2d 178. We held that the wrongful
death statute of limitations, in former Code § 8.01-244(B),
prescribed "a limitation period and a discrete tolling provision
applicable to nonsuits of wrongful death actions." Id. at 93,
400 S.E.2d at 180. We said that former Code § 8.01-229(E)(3),
dealing generally with the subject of tolling statutes of
limitations, was inapplicable to wrongful death actions because
former § 8.01-244(B), dealing specifically with the subject,
controlled. Id. at 94-95, 400 S.E.2d at 181.
Effective July 1, 1991, the General Assembly amended the
foregoing statutes. Acts 1991, ch. 722. The amendments modified
those statutes to provide a six-month tolling provision for
nonsuited wrongful death actions.
On January 20, 1995, the plaintiff nonsuited the original
action. On June 20, 1995, the plaintiff filed the present
wrongful death action against Virginia Power, and others, making
essentially the same allegations that had been made in the
original action. Later, the plaintiff's case against the other
defendants was settled.
Virginia Power filed a motion for summary judgment on the
ground that the present action was untimely. Following a
hearing, the trial court granted defendant's motion and dismissed
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the action with prejudice. We awarded plaintiff this appeal from
the November 1996 final order.
When the plaintiff's cause of action accrued, the 1984
version of the wrongful death statute of limitations was in
effect. It provided that if a wrongful death action is brought
within two years after the death of the injured person and is
dismissed without determining the merits, "the time such action
is pending shall not be counted as any part of such period of two
years and another action may be brought within the remaining
period of such two years as if such former action had not been
instituted." Code § 8.01-244(B) (1984 Repl. Vol.).
As we have said, in Dodson we held the foregoing statute
controlled that wrongful death action, not Code § 8.01-229, the
general nonsuit statute. As pertinent, the latter statute
provided that if a plaintiff suffers a voluntary nonsuit, "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 he suffers such nonsuit, or within the original period of
limitation, whichever period is longer." Code § 8.01-229(E)(3)
(1984 Repl. Vol.).
In the 1991 amendments to the foregoing statutes, the
General Assembly provided in § 8.01-229 that the six-month
tolling provision for nonsuited actions "shall apply to all
actions irrespective of whether they arise under common law or
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statute." Code § 8.01-229(E)(3) (1992 Repl. Vol.).
At the same time, the legislature provided in § 8.01-244
that if a plaintiff suffers a voluntary nonsuit, "the provisions
of subdivision E 3 of § 8.01-229 shall apply to such a nonsuited
action." Code § 8.01-244(B) (1992 Repl. Vol.).
On appeal, the plaintiff points out the 1991 amendments
"extending the six-month tolling provisions following a nonsuit
to wrongful death actions had been in existence for more than
three and one-half years when plaintiff's original action was
nonsuited." Continuing, plaintiff says there "is no dispute that
the original action was timely filed" and there "can be no
dispute that, at the time the 1991 statutory amendments became
effective, plaintiff's claim was not time-barred."
Building on this premise, the plaintiff contends the 1991
nonsuit tolling provisions are applicable to her cause of action
by virtue of the provisions of Code § 8.01-1. That statute
provides: "Except as may be otherwise provided in § 8.01-256
[governing limitations affecting actions pending on October 1,
1977] . . . , all provisions of this title shall apply to causes
of action which arose prior to the effective date of any such
provisions; provided, however, that the applicable law in effect
on the day before the effective date of the particular provisions
shall apply if in the opinion of the court any particular
provision (i) may materially change the substantive rights of a
party (as distinguished from the procedural aspects of the
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remedy) or (ii) may cause the miscarriage of justice." The
plaintiff argues that under those "plain terms . . . new or
amended provisions of Title 8.01 apply to existing causes of
action except in three instances," which, the plaintiff says, are
inapplicable here.
Additionally, plaintiff contends there is a difference
between "a limitation period" and "a tolling provision." A
tolling provision, according to plaintiff, "confers neither right
nor remedy," but rather "involves the procedural aspects of a
remedy." Also, plaintiff argues, "nonsuit tolling provisions are
not substantive and do not materially curtail any substantive
rights" of defendant.
Elaborating, plaintiff contends the "purpose of the statute
of limitations was served when plaintiff brought her original
action within two years of" the decedent's death. She says
defendant was put on timely notice of her claim, identified
witnesses, gathered evidence, and engaged in extensive discovery
before the original action was nonsuited. She argues defendant's
"ability to defend plaintiff's claim was in no way impaired by
the nonsuit of the original action and her filing of the second
action six months later."
Finally, plaintiff contends the General Assembly
"manifestly intended the nonsuit tolling provisions of the 1991
amendments were to apply to actions for wrongful death pending on
the effective date of those amendments." She says Code § 8.01-1
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"could not be more clear." Also, she argues, Code § 8.01-
229(E)(3) was modified to apply to "all actions," thereby making
"clear that the nonsuit tolling provisions applied not only to
common law actions but to actions, such as those for wrongful
death, created by statute."
Thus, plaintiff contends, the trial court erred in granting
defendant's motion for summary judgment. We disagree.
If the 1984 versions of the applicable statutes control,
particularly Code § 8.01-244(B), the present action was untimely.
See Dodson, 241 Va. at 95, 400 S.E.2d at 181. When the original
action was filed, only four days of the two-year limitations
period remained. Thus, when the plaintiff took the nonsuit, she
had four days to refile the action pursuant to the tolling
provision of § 8.01-244(B) (time wrongful death action pending
not to be counted as any part of two-year limitation period and
another action may be brought within remaining two-year period).
The plaintiff waited, however, five months before refiling.
To salvage her time-barred action, the plaintiff seeks to
apply the 1991 amendments retroactively. The success of that
strategy depends upon whether the time provisions of the 1991
amendments are procedural and not substantive. We hold they are
substantive.
"Substantive rights, which are not necessarily synonymous
with vested rights, are included within that part of the law
dealing with creation of duties, rights, and obligations, as
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opposed to procedural or remedial law, which prescribes methods
of obtaining redress or enforcement of rights." Shiflet v.
Eller, 228 Va. 115, 120, 319 S.E.2d 750, 754 (1984).
Actions for wrongful death did not exist at common law.
The cause of action and the right to enforce it were created by
statute. Dodson, 241 Va. at 92, 400 S.E.2d at 180. The
limitation period contained in Code § 8.01-244(B) is directed
specifically to the right of action provided by the wrongful
death act; the limitation qualifies the right. See Jones v. R.S.
Jones and Assocs., Inc., 246 Va. 3, 7, 431 S.E.2d 33, 35 (1993).
Thus, the limitation period for bringing the wrongful death
action, including the tolling provision, is a substantive part of
such action. Id.
Consequently, because the wrongful death statutes
inextricably bind the remedy to the right of recovery, the rights
of the plaintiff and defendant under the statutes became fixed at
the time the cause of action accrued and subsequent amendments do
not apply retroactively. Barksdale v. H.O. Engen, Inc., 218 Va.
496, 498-99, 237 S.E.2d 794, 796-97 (1977). This rule applies
whether the amendments are to tolling provisions or statutes of
limitation. See Dodson, 241 Va. at 93-94, 400 S.E.2d at 180.
Moreover, contrary to plaintiff's contention, Code § 8.01-1
does not require retroactive application of the 1991 amendments.
Such application is prohibited by the provisions of Code § 1-16.
As pertinent, that statute provides: "No new law shall be
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construed to repeal a former law . . . or any right accrued, or
claim arising under the former law, or in any way whatever to
affect . . . any right accrued, or claim arising before the new
law takes effect; save only that the proceedings thereafter had
shall conform, so far as practicable, to the laws in force at the
time of such proceedings. . . ." See Harris v. DiMattina, 250
Va. 306, 311-12, 462 S.E.2d 338, 340 (1995); Ferguson v.
Ferguson, 169 Va. 77, 87-88, 192 S.E. 774, 777 (1937).
Code § 8.01-1 is an exception to the general rule of
statutory construction set forth in § 1-16. Harris, 250 Va. at
314, 462 S.E.2d at 341. The general rule is that changes to
statutes affecting substantive rights apply prospectively and
that the proceedings under those statutes will conform to the
laws in effect on the date they are conducted. Section 8.01-1,
the exception, deals only with changes in the procedural
provisions of Title 8.01 and also sets forth certain
circumstances when such procedural changes may not apply to
existing causes of action. Because the 1991 amendments are
changes to the substantive statutes under consideration, § 8.01-1
has no application.
Finally, the plain language of the 1991 amendments does not
support the plaintiff's contention that the General Assembly
intended them to apply retroactively. The plaintiff urges
retroactive application because the modification to Code § 8.01-
229(E)(3) applies to "all actions."
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But those words must be construed in context with the
language they accompany. The statute provides that it applies
"to all actions irrespective of whether they arise under common
law or statute." Plainly, the "all actions" phrase means the
amendment applies to both common law and statutory actions. The
words refer to the type of action, and not to prospective or
retroactive application of the amendment. Indeed, amendments to
statutes of limitations are presumed to be prospective and not
retroactive in their operation, in the absence of a clear
legislative intent to the contrary. Ferguson, 169 Va. at 85, 192
S.E. at 776.
Accordingly, we hold there is no error in the judgment of
the trial court and it will be
Affirmed.
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