By Deborah Elkins
Published: January 18, 2011
A wrongful death action brought by one of two co-administrators is not time-barred when the second co-administrator is joined as a plaintiff after expiration of the statute of limitations, and the Supreme Court of Virginia reverses the trial court’s dismissal of this medical malpractice action filed by decedent’s parents as co-administrators.
We disagree with plaintiffs that the language of Va. Code § 8.01-244 does not require that all co-administrators must join as plaintiffs and that a single co-administrator may maintain a wrongful death action. If the General Assembly had intended for any one of two or more administrators to pursue a wrongful death action, it could have used the indefinite articles “a” or “any” rather than the definite article “the” prior to the term “personal representative.” By using the term “the personal representative,” while knowing that more than one individual may qualify as administrator or executor, the General Assembly intended a unity of action whether there is one personal representative or more than one.
In its letter opinion, the circuit court found the mother was a necessary party and that the father lacked standing to sue alone. The circuit court relied on Cook v. Radford Community Hosp. Inc., 260 Va. 443 (2000), to rule that whether an original party lacks standing is not an issue of misjoinder or non-joinder, rather a necessary party may not be added or a new plaintiff substituted for an original party that lacked standing to sue. However, Cook is distinguishable from this case.
The plain language of Code § 8.01-5(A) would permit the joinder of the mother/co-administrator as an additional party plaintiff at any time as the ends of justice may require. The statute is remedial in nature and therefore should be liberally construed.
The mere addition of a co-administrator (or co-executor) of an estate as a necessary party plaintiff who willingly submits to the court’s jurisdiction does not offend the public policy underlying the statutes of limitation and does not prejudice any defendant in an action bringing claims only of the estate.
We hold that Code § 8.01-5 permits the joinder of a co-administrator to a wrongful death action under Code § 8.01-50 when the other co-administrator is already a party plaintiff and the claims in the suit do not change as a result of the joinder. We further hold that the father/co-administrator’s initial filing, without his co-administrator, of the wrongful death claim tolled the statute of limitations for that claim. The circuit court therefore erred in sustaining defendants’ plea of the statute of limitations. We will reverse and remand for further proceedings in accord with this opinion.
Reversed and remanded.
Addison, Adm’r v. Jurgelsky (Mims, J.) No. 09-2361, Jan. 13, 2011; Tazewell County Cir.Ct. (Johnson) Frank K. Friedman, F. Elizabeth Burgin, C. Richard Cranwell, M. Quentin Emick Jr. for appellants; Powell M. Leitch III, John T. Jessee, Joseph M. Rainsbury, William W. Eskridge, Mark E. Frye for appellees. VLW 011-6-016, 9 pp.