Byington v. Sentara Life Care Corp.

David W. Lannetti Circuit Court Judge

ORDER

Ward Byington ("Mr. Byington"), in his capacity as guardian and conservator of Ouida Byington ("Ms. Byington"), and Defendants Sentara Life Care Corporation d/b/a Sentara Nursing Center—Norfolk ("Sentara"), Lanesha Saunders, LPN, Theron Nichol, LPN, Levanda Gilliam, CNA, and Comfort Odurukwe, CNA (collectively, "Defendants") appeared by counsel before this Court on June 22, 2016, for a hearing (the "Hearing") on Defendants' Special Plea in Bar to the statute of limitations, proper notice having been given to all parties. Joseph Lassiter, Ms. Byington's guardian ad litem ("GAL"), also was present. At the conclusion of the Hearing, the Court took the plea under advisement and granted the parties one week to forward any additional authorities for the Court's consideration.

Now the Court—after reviewing the related briefs, considering the arguments at the Hearing, and consulting applicable authorities—rules as follows.

The injury that is the subject of this suit occurred on April 18, 2013. (Compl. 6, Byington v. Sentara Life Care Corp., et al., No. CL14-6626 (Norfolk Cir. Ct. Sept. 19, 2014).) The statute of limitations prescribed by the General Assembly for personal injury actions is two years from the date of the injury. Va. Code Ann. § 8.01-243(A) (2015 Repl. Vol.). The original date on which the statute of limitations would have run therefore was April 18, 2015. Ms. Byington nonsuited her original suit against Sentara on October 6, 2015. (Nonsuit Order, Byington, No. CL14-6626 (Oct. 6, 2015).) Section 8.01-229(E)(3) of the Code of Virginia provides as follows:

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 of the date of the order entered by the court, or within the original period of limitation . . . , whichever is longer.

Va
. Code § 8.01-229(E)(3). As the original two-year period of limitations had expired by the date of the nonsuit, Ms. Byington had six months from the date of the nonsuit—until April 6, 2016—to recommence her case.

On February 2, 2016, Mr. Byington, on behalf of his mother and next friend, filed a complaint against Sentara that ultimately was dismissed by this Court. The Court held that Mr. Byington "does not have standing or authority to file suit on behalf of his mother as 'next friend,' and no Order had been entered appointing him as conservator for purposes of bringing forth litigation on [Ms.] Byington's behalf." (Dismissal Order, Byington v. Sentara Life Care Corp., et al., No. CL16-1270 (Norfolk Cir. Ct. Apr. 12, 2016).)

On April 5, 2016, in response to a petition for Guardianship/Conservatorship, Ms. Byington was adjudicated incapacitated, and Mr. Byington was appointed as Ms. Byington's Conservator. (Defs.' Br. in Supp. of Plea in Bar, Ex. D.)

Mr. Byington filed the Complaint in this case on April 8, 2016, two days beyond the expiration of the six-month period to refile after Ms. Byington's nonsuit. Although it initially appears that the Complaint was untimely filed and therefore is barred by the statute of limitations, the Code of Virginia provides for tolling of the statute of limitations while the plaintiff is incapacitated. Section 8.01-229(A)(2)(b) of the Code of Virginia provides as follows:

If a person entitled to bring such action becomes incapacitated, the time at which he is incapacitated shall not be computed as any part of the period within which the action must be brought, except where a conservator, guardian or committee is appointed for such person in which case an action may be commenced by such conservator, committee or guardian before the expiration of the applicable period of limitation or within one year after his qualification, whichever occurs later.

Va
. Code § 8.01-229(A)(2)(b). Consequently, if Ms. Byington became incapacitated at some point prior to the expiration of the statute of limitations, her cause of action may not be time barred.

Virginia courts apparently have not addressed in a published decision how to resolve this discrete issue. In Calvert v. State Farm Fire & Casualty Co., however, the U.S. District Court for the Western District of Virginia held that although the plaintiff's breach of contract claim was brought outside the statutorily mandated two-year limitations period, further evidentiary development was necessary on the issue of incapacity for purposes of tolling during the time period between a voluntary nonsuit of the original action and the filing of the subsequent suit. No. 5:12CV00017, 2012 WL 2804838, at *12 (W.D. Va. July 10, 2012). There, the court noted that although the complaint was "very thinly pleaded," it did refer to the plaintiff's "general incapacity"; the court therefore denied the motion to dismiss "out of an abundance of caution" and allowed the parties sixty days to conduct discovery on the narrow issue of when the plaintiff became incapacitated. Id.

The Court finds the Calvert opinion persuasive. As in Calvert, "the allegations in [Ms. Byington's Complaint] are inadequate for the Court to find her incapacitated during the relevant time period." Id. at *7. Here, Defendants persuasively argue that "this Court was not provided with medical records, physician testimony, videotape, or testimony by any family members. All it has to rely on is the unfounded and speculative testimony of [the GAL]." (Defs.' Br. in Supp. of Plea in Bar 7.) Ms. Byington asserts in her response to the Plea in Bar that she was "mentally incompetent and thereby incapacitated considerably before filing her complaint in the instant matter on April 8, 2016." (Grounds of Defense to Defs.' Plea in Bar 1.) Furthermore, both Ms. Byington's initial complaint, which was filed on September 19, 2014, and the Complaint in this action include the following relevant medical history:

On or about April 18, 2013, Ms. Byington was transferred from Sentara Leigh Memorial Hospital and admitted to Sentara Nursing Center with diagnosis of relapsed C. difficile colitis, history of hypertension, breast cancer, dementia, gout, and hypothyroidism. Ms. Byington was known to have a well-established history of falls and wandering along with sundowning behaviors. While hospitalized Ms. Byington was utilizing restraints and the services of a caregiver.

(Compl. 2; Compl. 2, Byington, No. CL14-6626 (Sep. 19, 2014) (emphasis added).) The date of the onset of Ms. Byington's incapacitation is unclear, to say the least.

This Court, as the Calvert court did, acts "out of an abundance of caution" regarding the determination of when Ms. Byington became incapacitated and will allow discovery and an evidentiary hearing to explore this issue further. Calvert, 2012 WL 2804838, at *12.

For the reasons stated herein, the Court OVERRULES Defendants' Special Plea in Bar and grants the parties sixty days to conduct discovery on the limited issue of Ms. Byington's incapacity and its date of inception. Within seven days of the date of this Order, the parties are directed to contact Wendy Spivey in the Norfolk Circuit Court Judicial Suite to schedule an evidentiary hearing to occur within 120 days of the date of this Order. The parties are further directed to file any related briefs, if they so choose, at least fourteen days prior to any hearing.

Any objections to this Order shall be submitted to the Court within fourteen days. Endorsements are waived pursuant to Rule 1:13. The Clerk shall mail or email copies of this Order to all counsel of record.

IT IS SO ORDERED this 1^st day of August, 2016.

/s/_________

David W. Lannetti

Circuit Court Judge