Bucci & Dix

Lawsuit Against Deceased Defendant Cannot Be Amended

The Salem Circuit Court has found that a personal injury lawsuit was untimely filed because the statute of limitations had run, and the previously nonsuited case was a legal nullity.  The plaintiff filed his lawsuit prior to the expiration of the statute of limitations against the defendant, who was deceased.  The plaintiff then nonsuited the case, and refiled it after the expiration of the statute of limitations. Thereafter, the plaintiff moved to amend the lawsuit to substitute the decedent’s personal representative in place of the decedent defendant.

Citing to the Virginia Supreme Court case of Johnston Memorial v. Bazemore, the Circuit Court judge held that the amendment could not be allowed.  The initial personal injury lawsuit against the decedent defendant constituted a “legal nullity.”  Although the Virginia Code permits a lawsuit to be amended to name the personal representative, this provision does not apply if the initial case was nonsuited and the statute of limitations has expired.