 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Douglas v. Chesterfield County Police Department3/1/1996
OPINION BY JUSTICE LAWRENCE L. KOONTZ, JR.
Pursuant to our Rule 5:42, the United States District Court for the Eastern District of Virginia certified a question of Virginia law to this Court which we accepted by order entered September 21, 1995 . The question involves the provisions of Code § 8.01-229(B)(6) relating to delayed appointment of a personal representative. The order of certification states that the certified question is dispositive of all claims asserted in the action.
The following relevant facts are taken from the district court's order of certification and the record provided to this Court.
On October 9, 1991, at the request of Irene T. Douglas (Mrs. Douglas), officers of the Chesterfield County Police Department (the Department) executed a custody order requiring that John F. Douglas (Mr. Douglas), Mrs. Douglas's husband, be committed to a local psychiatric facility. Mr. Douglas resisted being taken into custody, which resulted in efforts by the officers to subdue him by forcing him to the floor and subjecting him to a "choke-hold." Mr. Douglas was then placed in leg and wrist restraints and transported to the psychiatric facility specified in the custody order. Mr. Douglas was in cardiac arrest when he arrived at the facility and "subsequently died."
On October 8, 1993, Mrs. Douglas first instituted an action in the Circuit Court of the City of Richmond (the state court) against the Department and several of its officers (collectively, the defendants). The style of the motion for judgment named Mrs. Douglas as "Executor . . . of the Estate of John Frank Douglas." The motion for judgment was never served on any of the defendants and was dismissed by voluntary non-suit taken on September 29, 1994. Thereafter, Mrs. Douglas retained different counsel and instituted the present federal action on March 16, 1995. In her complaint she alleged multiple deprivations of Mr. Douglas's constitutional rights in violation of 42 U.S.C. § 1983, various tort claims, and violations of the Constitution of Virginia. The complaint was filed in the name of Mrs. Douglas as the "executrix" of Mr. Douglas's estate. Although Mrs. Douglas was named as executrix in Mr. Douglas's will, she did not qualify as personal representative of the estate until April 26, 1995.
The defendants moved to dismiss the federal action on the ground that the action was barred by the two-year limitation period provided in Code § 8.01-244. The defendants asserted that since Mrs. Douglas failed to qualify as personal representative for Mr. Douglas's estate until April 26, 1995, no action had been instituted by a proper party within two years after Mr. Douglas's death. In response, Mrs. Douglas asserted that the provisions of Code § 8.01-229(B)(6) permitted her April 26, 1995 qualification as personal representative to relate back to the last day of the two-year statute of limitations period, that such relating back made her the proper party to bring the state action and the federal action, that the voluntary non-suit of her state action activated the tolling provisions of Code § 8.01-229(E)(3), and, therefore, that the filing of her federal action on March 16, 1995, within six months of the nonsuit, was timely.
The district court certified the following question:
Whether, under the foregoing facts and for the purpose of determining the timeliness of the present action, [Va. Code § 8.01-229(B)(6)] operates to deem Mrs. Douglas as having qualified as the personal representative of Mr. Douglas on October 8, 1993.[ ]
On brief and during oral argument, the parties addressed at length the question of what tolling provision applied in light of Mrs.
Page 1 2 3 Virginia Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|