§ 8.01-25. Survival of causes of action.
Every cause of action whether legal or equitable, which is cognizable in the Commonwealth of Virginia, shall survive either the death of the person against whom the cause of action is or may be asserted, or the death of the person in whose favor the cause of action existed, or the death of both such persons. Provided that in such an action punitive damages shall not be awarded after the death of the party liable for the injury. Provided, further, that if the cause of action asserted by the decedent in his lifetime was for a personal injury and such decedent dies as a result of the injury complained of with a timely action for damages arising from such injury pending, the action shall be amended in accordance with the provisions of §8.01-56.
As used in this section, the term “death” shall include the death of an individual or the termination or dissolution of any other entity.
§ 8.01-26. Assignment of causes of action.
Only those causes of action for damage to real or personal property, whether such damage be direct or indirect, and causes of action ex contractu are assignable. The provisions of this section shall not prohibit any injured party or his estate from making a voluntary assignment of the proceeds or anticipated proceeds of any court award or settlement as security for new value given in consideration of such voluntary assignment.
§ 8.01-27. Civil action on note or writing promising to pay money.
A civil action may be maintained upon any note or writing by which there is a promise, undertaking, or obligation to pay money, if the same be signed by the party who is to be charged thereby, or his agent. The action may also be maintained on any such note or writing for any past due installment on a debt payable in installments, although other installments thereof be not due.
§ 8.01-27.1. Additional recovery in certain civil actions concerning checks.
A. Except as otherwise provided in Chapter 13 (§ 55-217 et seq.) or Chapter 13.2 (§ 55-248.2 et seq.) of Title 55, in any civil claim or action made or brought against the drawer of a check, draft or order, payment of which has been refused by the drawee depository because of lack of funds in or credit with such drawee depository, or because such check, draft or order was returned because of a stop-payment order placed in bad faith on the check, draft or order by the drawer, the holder or his agent shall be entitled to claim, in addition to the face amount of the check (i) legal interest from the date of the check, (ii) the protest or bad check return fee, if any, charged to the holder by his bank or other depository, (iii) a processing charge of $50, and (iv) reasonable attorney’s fees if awarded by the court.
B. Except as otherwise provided in Chapter 13 (§ 55-217 et seq.) or Chapter 13.2 (§ 55-248.2 et seq.) of Title 55, any holder of a check, draft or order, payment of which has been refused by the drawee for insufficient funds or credit or because of a stop-payment order placed in bad faith, who charges the drawer amounts in excess of those authorized in subsection A on account of payment being so refused shall, upon demand, be liable to the drawer for the lesser of (i) $50 plus the excess of the authorized amount or (ii) twice the amount charged in excess of the authorized amount.
§ 8.01-27.2. Civil recovery for giving bad check.
Except as otherwise provided in Chapter 13 (§ 55-217 et seq.) or Chapter 13.2 (§ 55-248.2 et seq.) of Title 55, in the event a check, draft or order, the payment of which has been refused by the drawee because of lack of funds in or credit with such drawee, is not paid in full within thirty days after receipt by the drawer of (i) written notice by registered, certified, or regular mail with the sender retaining an affidavit of service of mailing or other sufficient proof of mailing, which may be a U.S. Postal Certificate of Mailing or (ii) if for nonpayment of rent under § 55-225 or 55-248.31, written notice in accordance therewith, from the payee that the check, draft or order has been returned unpaid, the payee may recover from the drawer in a civil action brought by the filing of a warrant in debt, the lesser of $250 or three times the amount of the check, draft or order. The amount recovered as authorized by this section shall be in addition to the amounts authorized for recovery under § 8.01-27.1. No action may be initiated under this section if any action has been initiated under § 18.2-181. The drawer shall be obligated to pay the cost of service and the cost of mailing, as applicable.
§ 8.01-27.3. Evidence in actions regarding issuance of bad check.
In any civil action growing out of an arrest under § 18.2-181 or § 18.2-182, no evidence of statements or representations as to the status of the check, draft, order or deposit involved, or of any collateral agreement with reference to the check, draft, or order, shall be admissible unless such statement, or representation, or collateral agreement, is written upon the instrument at the time it is given by the drawer.
§ 8.01-27.4. Civil recovery for professional services.
In the event any insured or enrollee of an accident and sickness insurance policy, health services plan or health maintenance organization receives payment from the insurance company, health services plan or health maintenance organization licensed under Title 38.2, pursuant to a claim that involves the provision of services to the insured or enrollee by a professional licensed under Title 54.1, and within 30 days of receipt of the payment does not forward the payment with the necessary endorsement to the professional for application towards the unpaid balance on the professional services subject to the claim, the professional may in a civil action brought by the filing of a warrant in debt recover from the insured or enrollee the lesser of $250 or three times the amount of the payment, together with the amount of the payment. The amount recovered as authorized by this section shall be in addition to the amounts authorized for recovery under § 8.01-27.1. No action may be initiated under this section unless the professional, prior to receipt of payment by the insured or enrollee, forwards to the insured or enrollee via first class mail an invoice for services rendered.
§ 8.01-28. When judgment to be given in action upon contract or note unless defendant appears and denies claim under oath.
In any action at law on a note or contract, express or implied, for the payment of money, or unlawful detainer pursuant to §55-225 or § 55-248.31 for the payment of money or possession of the premises, or both, if (i) the plaintiff files with his motion for judgment or civil warrant an affidavit made by himself or his agent, stating therein to the best of the affiant’s belief the amount of the plaintiff’s claim, that such amount is justly due, and the time from which plaintiff claims interest, and (ii) a copy of the affidavit together with a copy of any account filed with the motion for judgment or warrant and, in actions pursuant to § 55-225 or § 55-248.31, proof of required notices is served on the defendant as provided in § 8.01-296 at the time a copy of the motion for judgment or warrant is so served, the plaintiff shall be entitled to a judgment on the affidavit and statement of account without further evidence unless the defendant either appears and pleads under oath or files with the court before the return date an affidavit or responsive pleading denying that the plaintiff is entitled to recover from the defendant on the claim. A denial by the defendant in general district court need not be in writing. The plaintiff or defendant shall, on motion, be granted a continuance whenever the defendant appears and pleads. If the defendant’s pleading or affidavit admits that the plaintiff is entitled to recover from the defendant a sum certain less than that stated in the affidavit filed by the plaintiff, judgment may be taken by the plaintiff for the sum so admitted to be due, and the case will be tried as to the residue.
§ 8.01-29. Procedure in actions on annuity and installment bonds, and other actions for penalties for nonperformance.
In an action on an annuity bond, or a bond for money payable by installments, when there are further payments of the annuity, or further installments to become due after the commencement of the action, or in any other action for a penalty for the nonperformance of any condition, covenant, or agreement, the plaintiff may assign as many breaches as he may think fit, and shall, in his motion for judgment assign the specific breaches for which the action is brought. The jury impaneled in any such action shall ascertain the damages sustained, or the sum due, by reason of the breaches assigned, and judgment shall be entered for the penalty, to be discharged by the payment of what is so ascertained, and such further sums as may be afterwards assessed. Motion may be made by any person injured against the defendant and, for what may be assessed or found due upon the new breach or breaches assigned, execution may be awarded.
§ 8.01-30. Procedure in actions on contracts made by several persons.
Upon all contracts hereafter made by more than one person, whether joint only or joint and several, an action may be maintained and judgment rendered against all liable thereon, or any one or any intermediate number, and if, in an action on any contract heretofore or hereafter made, more than one person be sued and process be served on only a part of them, the plaintiff may dismiss or proceed to judgment as to any so served, and either discontinue as to the others, or from time to time as the process is served, proceed to judgment against them until judgment be obtained against all. Such dismissal or discontinuance of the action as to any defendant shall not operate as a bar to any subsequent action which may be brought against him for the same cause.
§ 8.01-31. Accounting in equity.
An accounting in equity may be had against any fiduciary or by one joint tenant, tenant in common, or coparcener for receiving more than comes to his just share or proportion, or against the personal representative of any such party.
§ 8.01-32. Action on lost evidences of debt.
A. A civil action may be maintained on any past-due lost bond, note, contract, open account agreement, or other written evidence of debt, provided the plaintiff verifies under oath either in open court or by affidavit that said bond, note, contract, open account agreement, or other written evidence of debt has been lost or destroyed.
B. Where a true and accurate copy of the written evidence of debt exists, which copy was produced in the normal course of business, the court shall accept such copy into evidence and shall give effect to its terms as if the original had been placed into evidence.
C. In the event of any inconsistency between this section and any applicable provisions of § 8.3A-309, the provisions of that section shall control.
§ 8.01-33. Equitable relief in certain cases.
A court shall not grant equitable relief in a suit upon a bond, note, or writing, by an assignee or holder thereof, unless it appears that the plaintiff had no adequate remedy thereon at law.
§ 8.01-34. When contribution among wrongdoers enforced.
Contribution among wrongdoers may be enforced when the wrong results from negligence and involves no moral turpitude.
§ 8.01-35. Damages for loss of income not diminished by reimbursement.
In any suit brought for personal injury or death, provable damages for loss of income due to such injury or death shall not be diminished because of reimbursement of income to the plaintiff or decedent from any other source, nor shall the fact of any such reimbursement be admitted into evidence.
§ 8.01-35.1. Effect of release or covenant not to sue in respect to liability and contribution.
A. When a release or a covenant not to sue is given in good faith to one of two or more persons liable for the same injury to a person or property, or the same wrongful death:
1. It shall not discharge any other person from liability for the injury, property damage or wrongful death unless its terms so provide; but any amount recovered against the other person or any one of them shall be reduced by any amount stipulated by the covenant or the release, or in the amount of the consideration paid for it, whichever is the greater. In determining the amount of consideration given for a covenant not to sue or release for a settlement which consists in whole or in part of future payment or payments, the court shall consider expert or other evidence as to the present value of the settlement consisting in whole or in part of future payment or payments. A release or covenant not to sue given pursuant to this section shall not be admitted into evidence in the trial of the matter but shall be considered by the court in determining the amount for which judgment shall be entered; and
2. It shall discharge the person to whom it is given from all liability for contribution to any other person liable for the same injury to person or property or the same wrongful death.
B. A person who enters into a release or covenant not to sue with a claimant is not entitled to recover by way of contribution from another person whose liability for the injury, property damage or wrongful death is not extinguished by the release or covenant not to sue, nor in respect to any amount paid by the person which is in excess of what was reasonable.
C. For the purposes of this section, a covenant not to sue shall include any “high-low” agreement whereby a party seeking damages for injury to a person or property, or for wrongful death, agrees to accept as full satisfaction for any judgment no more than one sum certain and the party or parties from whom the damages are sought agree to pay no less than another sum certain regardless of whether any judgment rendered at trial is higher or lower than the respective sums certain set forth in the agreement and whereby such party provides notice to all of the other parties of the terms of such “high-low” agreement immediately after such agreement is reached.
D. A release or covenant not to sue given pursuant to this section shall be subject to the provisions of §§ 8.01-55 and 8.01-424.
E. This section shall apply to all such covenants not to sue executed on or after July 1, 1979, and to all releases executed on or after July 1, 1980. This section shall also apply to all oral covenants not to sue and oral releases agreed to on or after July 1, 1989, provided that any cause of action affected thereby accrues on or after July 1, 1989. A release or covenant not to sue need not be in writing where parties to a pending action state in open court that they have agreed to enter into such release or covenant not to sue and have agreed further to subsequently memorialize the same in writing.
§ 8.01-36. Joinder of action of tort to infant with action for recovery of expenses incurred thereby.
Where there is pending any action by an infant plaintiff against a tort-feasor for a personal injury, any parent, or guardian of such infant, who is entitled to recover from the same tort-feasor the expenses of curing or attempting to cure such infant from the result of such personal injury, may bring an action against such tort-feasor for such expenses, in the same court where such infant’s case is pending, either in the action filed in behalf of the infant or in a separate action. If the claim for expenses be by separate action, upon motion of any party to either case, made to the court at least one week before the trial, both cases shall be tried together at the same time as parts of the same transaction. But separate verdicts when there is a jury trial shall be rendered, and the judgment shall distinctly separate the decision and judgment in the separate causes of action.
In the event of the cases being carried to the Supreme Court, which may be done if there be the jurisdictional amount in either case, they shall both be carried together as one case and record, but the Supreme Court shall clearly specify the decision in each case, separating them in the decision to the extent necessary to do justice among the parties.
§ 8.01-37. Recovery of lost wages in action for injuries to emancipated infant.
In any suit for personal injuries brought on behalf of an emancipated infant, when such infant has sustained lost wages as a result of such injuries, he shall be entitled to recover such lost wages as a part of his damages. Where recovery is made hereunder or where recovery is attempted to be made and a decision on the merits adverse to said infant results, no other person may recover such lost wages.
§ 8.01-37.1. Claims for medical services provided by United States; proof of reasonable value.
Whenever any person sustains personal injuries caused by the alleged negligence of another, and a claim against any person alleged to be liable is created in favor of the United States under federal law (42 U.S.C. § 2651 et seq.) for the reasonable value of medical, surgical or dental care and treatment provided, the injured party may, on behalf of the United States, claim the reasonable value of the medical services provided as an element of damages in a civil action against the person alleged to be liable. It shall not be required that the United States intervene in the action or be made a party in order to establish its claim. A sworn written statement of the authorized representative of the department or agency providing such services prepared in accordance with the regulations promulgated pursuant to 42 U.S.C. § 2652 shall be admissible as evidence of the reasonable value of the care and treatment provided.
§ 8.01-38. Tort liability of hospitals.
Hospital as referred to in this section shall include any institution within the definition of hospital in § 32.1-123.
No hospital, as defined in this section, shall be immune from liability for negligence or any other tort on the ground that it is a charitable institution unless (i) such hospital renders exclusively charitable medical services for which service no bill for service is rendered to, nor any charge is ever made to the patient or (ii) the party alleging such negligence or other tort was accepted as a patient by such institution under an express written agreement executed by the hospital and delivered at the time of admission to the patient or the person admitting such patient providing that all medical services furnished such patient are to be supplied on a charitable basis without financial liability to the patient. However, notwithstanding the provisions of §8.01-581.15 a hospital which is exempt from taxation pursuant to § 501 (c) (3) of Title 26 of the United States Code (Internal Revenue Code of 1954) and which is insured against liability for negligence or other tort in an amount not less than $500,000 for each occurrence shall not be liable for damage in excess of the limits of such insurance, or in actions for medical malpractice pursuant to Chapter 21.1 (§ 8.01-581.1 et seq.) for damages in excess of the amount set forth in §8.01-581.15.
§ 8.01-38.1. Limitation on recovery of punitive damages.
In any action accruing on or after July 1, 1988, including an action for medical malpractice under Chapter 21.1 (§ 8.01-581.1 et seq.), the total amount awarded for punitive damages against all defendants found to be liable shall be determined by the trier of fact. In no event shall the total amount awarded for punitive damages exceed $350,000. The jury shall not be advised of the limitation prescribed by this section. However, if a jury returns a verdict for punitive damages in excess of the maximum amount specified in this section, the judge shall reduce the award and enter judgment for such damages in the maximum amount provided by this section.
§ 8.01-39. Completion or acceptance of work not bar to action against independent contractor for personal injury, wrongful death or damage to property.
In any civil action in which it is alleged that personal injury, death by wrongful act or damage to property has resulted from the negligence of or breach of warranty by an independent contractor, it shall not be a defense by such contractor to such action that such contractor has completed such work or that such work has been accepted as satisfactory by the owner of the property upon which the work was done or by the person hiring such contractor.
Nothing contained herein shall be construed to limit, modify or otherwise affect the provisions of § 8.01-250.
§ 8.01-40. Unauthorized use of name or picture of any person; exemplary damages; statute of limitations.
A. Any person whose name, portrait, or picture is used without having first obtained the written consent of such person, or if dead, of the surviving consort and if none, of the next of kin, or if a minor, the written consent of his or her parent or guardian, for advertising purposes or for the purposes of trade, such persons may maintain a suit in equity against the person, firm, or corporation so using such person’s name, portrait, or picture to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use. And if the defendant shall have knowingly used such person’s name, portrait or picture in such manner as is forbidden or declared to be unlawful by this chapter, the jury, in its discretion, may award exemplary damages.
B. No action shall be commenced under this section more than twenty years after the death of such person.
§ 8.01-40.1. Action for injury resulting from violation of Computer Crimes Act; limitations.
Any person whose property or person is injured by reason of a violation of the provisions of the Virginia Computer Crimes Act (§ 18.2-152.1 et seq.) may sue and recover damages as provided in § 18.2-152.12. An action shall be commenced before the earlier of (i) five years after the last act in the course of conduct constituting a violation of the Computer Crimes Act or (ii) two years after the plaintiff discovers or reasonably should have discovered the last act in the course of conduct constituting a violation of the Computer Crimes Act.
§ 8.01-40.2. Unsolicited transmission of advertising materials by facsimile machine.
A. Any person aggrieved by the intentional electronic or telephonic transmission to a facsimile device of unsolicited advertising material may bring an action against the person responsible for the transmission to enjoin further violations and to recover the greater of (i) actual damages sustained, together with costs and reasonable attorneys’ fees, or (ii) $500. Carriers or other companies which provide facsimile transmission services shall not be responsible for transmissions of unsolicited advertising materials by their customers. An action brought pursuant to this section shall be commenced within two years of the transmission.
B. Any intentional transmission to a facsimile device of any unsolicited advertising material shall be a violation of the Virginia Consumer Protection Act (§ 59.1-196 et seq.).
§ 8.01-41. Wrongful distraint, attachment.
If property be distrained for any rent not due, or attached for any rent not accruing, or taken under any attachment sued out without good cause, the owner of such property may, in an action against the party suing out the warrant of distress or attachment, recover damages for the wrongful distraint, seizure, or sale.
§ 8.01-42. Loss or injury to clothing in dyeing, dry cleaning, or laundering.
No person engaged in the business of dyeing, dry cleaning, or laundering wearing apparel, cloth or other articles, shall be liable, or in any action or suit against him be held liable, for the loss of, or injury to, any wearing apparel, cloth or other articles delivered to him to be dyed, dry cleaned, or laundered, in an amount greater than the purchase price minus depreciation of such wearing apparel, cloth or other articles, unless at the time of the delivery to him of any such wearing apparel, cloth or other articles, the value of the same, and when there is more than one piece or article the value of each piece or article, be agreed upon and evidenced by a writing stating such value, or separate values when there is more than one piece or article, signed by him; provided, however, that:
1. Nothing in this section contained shall be construed as requiring of any such person more than the exercise of such degree of care as is now imposed by existing law;
2. In no event shall any such person be held liable in any suit or action involving any such loss or injury for any sum greater than the damages suffered, and proved, by the plaintiff therein when such damages would not under the rules of law existing prior to June 18, 1920, exceed the purchase price minus depreciation of such wearing apparel, cloth, or other article;
3. Nothing in this section shall be construed as interfering with or inhibiting, or impairing the obligation of, any written contract between any hotel, railroad company, steamboat company or other patron and any person engaged in the business of dyeing, dry cleaning, or laundering of wearing apparel, cloth or other article, in relation to such work;
4. No liability shall rest upon or be borne by any hotel for any loss of or damage to wearing apparel, cloth or other article, the property of any guest of such hotel who shall have delivered, or caused the same to have been delivered, for dyeing, dry cleaning, or laundering to any person engaged in the business of dyeing, dry cleaning, or laundering.
§ 8.01-42.1. Civil action for racial, religious, or ethnic harassment, violence or vandalism.
A. An action for injunctive relief or civil damages, or both, shall lie for any person who is subjected to acts of (i) intimidation or harassment or (ii) violence directed against his person; or (iii) vandalism directed against his real or personal property, where such acts are motivated by racial, religious, or ethnic animosity.
B. Any aggrieved party who initiates and prevails in an action authorized by this section shall be entitled to damages, including punitive damages, and in the discretion of the court to an award of the cost of the litigation and reasonable attorneys’ fees in an amount to be fixed by the court.
C. The provisions of this section shall not apply to any actions between an employee and his employer, or between or among employees of the same employer, for damages arising out of incidents occurring in the workplace or arising out of the employee-employer relationship.
§ 8.01-42.2. Liability of guest for hotel damage.
Any registered guest in a hotel, motel, inn or other place offering to the public transitory lodging or sleeping accommodations for compensation shall be civilly liable to the innkeeper for all property damage to such accommodation or its furnishings which occurs during the period of such person’s occupancy when such damage results (i) from the negligence of the guest or of any person for whom he is legally responsible or (ii) from the failure of the guest to comply with reasonable rules and regulations of which he is given actual notice by the innkeeper.
§ 8.01-42.3. Civil action for stalking.
A. A victim has a civil cause of action against an individual who engaged in conduct that is prohibited under § 18.2-60.3, whether or not the individual has been charged or convicted for the alleged violation, for the compensatory damages incurred by the victim as a result of that conduct, in addition to the costs for bringing the action. If compensatory damages are awarded, a victim may also be awarded punitive damages.
B. As used in this section:
“Compensatory damages” includes damages for all of the defendant’s acts prohibited by § 18.2-60.3.
“Victim” means a person who, because of the conduct of the defendant that is prohibited under § 18.2-60.3, was placed in reasonable fear of death, criminal sexual assault, or bodily injury to himself or to a minor child of whom the person is a parent or legal guardian.
C. No action shall be commenced under this section more than two years after the most recent conduct prohibited under §18.2-60.3.
§ 8.01-43. Action against parent for damage to public property by minor.
The Commonwealth, acting through the officers having charge of the public property involved, or the governing body of a county, city, town, or other political subdivision, or a school board may institute an action and recover from the parents or either of them of any minor living with such parents or either of them for damages suffered by reason of the willful or malicious destruction of, or damage to, public property by such minor. No more than $2,500 may be recovered from such parents or either of them as a result of any incident or occurrence on which such action is based.
The owner of any property may institute an action and recover from the parents, or either of them, of any minor living with such parents, or either of them, for damages suffered by reason of the willful or malicious destruction of, or damage to, such property by such minor. No more than $2,500 may be recovered from such parents, or either of them, as a result of any incident or occurrence on which such action is based. Any recovery from the parent or parents of such minor shall not preclude full recovery from such minor except to the amount of the recovery from such parent or parents. The provisions of this statute shall be in addition to, and not in lieu of, any other law imposing upon a parent liability for the acts of his minor child.
§ 8.01-44.1. Immunity from civil liability of members of certain committees, etc.
Every member of any committee, board, group, commission, or other entity established pursuant to federal or state law or regulation which functions to authorize, review, evaluate, or make recommendations on the nature, conduct, activities, or procedures involved in or related to programs or research protocols conducted under the supervision of members of the faculty or staff of any hospital, college, or university, including but not limited to the design or conduct of experiments involving human subjects, shall be immune from civil liability for any act, decision, omission, or utterance done or made in performance of such duties as a member of such committee, board, group, commission, or other entity, unless such act, decision, omission, or utterance is done or made in bad faith or with malicious intent or unless the member, when acting to authorize the nature, conduct, activities, or procedures involved in or related to a program or research protocol, knows or reasonably should know that the program or research protocol is being or will be conducted in violation of Chapter 5.1 (§32.1-162.16 et seq.) of Title 32.1. However, the immunity created herein shall not apply to those persons engaged in the actual conduct of the programs or research protocols.
§ 8.01-44.2. Action against physician for vaccine-related injury or death.
In any case where a person could file or could have filed a petition for compensation pursuant to Subtitle 2 of Title XXI of the Public Health Services Act of the United States (42 U.S.C. § 300aa-10 et seq.) for the vaccine-related injury or death associated with the administration of a vaccine in the Commonwealth by or under the supervision of a physician licensed to practice medicine in Virginia, no civil action shall lie against such physician, or any person administering such vaccine on behalf of such physician for injury or death resulting from an adverse reaction to such vaccine, except where such injury or death was caused by gross negligence of the physician, his agents or employees, in the administration of such vaccine.
§ 8.01-44.3. Divulgence of communications by qualified interpreters and communications assistants.
If the content of any communication which is facilitated for compensation in the professional capacity of a qualified interpreter, as defined in § 51.5-113, or in the professional capacity of any communications assistant employed by the statewide dual party relay service established under Article 5 (§ 56-484.4 et seq.) of Chapter 15 of Title 56, is divulged by such interpreter or assistant, any such party to the communication aggrieved by such divulgence may recover from such interpreter or assistant the greater of (i) actual damages sustained, together with costs and reasonable attorneys’ fees, or (ii) $100. No such recovery shall be permitted if the interpreter or assistant and the parties to the communication have agreed that the interpreter or assistant may divulge the content of the communication.
§ 8.01-44.4. Action for shoplifting and employee theft.
A. A merchant may recover a civil judgment against any adult or emancipated minor who shoplifts from that merchant for two times the unpaid retail value of the merchandise, but in no event an amount less than $50. However, if the merchant recovers the merchandise in merchantable condition, he shall be entitled to liquidated damages of no more than $350.
B. A merchant may recover a civil judgment against any person who commits employee theft for two times the unpaid retail value of the merchandise, but in no event an amount less than $50. However, if the merchant recovers the merchandise in merchantable condition, he shall be entitled to liquidated damages of no more than $350.
C. The prevailing party in any action brought pursuant to this section shall be entitled to reasonable attorneys’ fees and costs not to exceed $150.
D. A conviction of or a plea of guilty to a violation of any other statute is not a prerequisite to commencement of a civil action pursuant to this section or enforcement of a judgment. No action may be initiated under this section if any criminal action has been initiated against the perpetrator for the alleged offense under § 18.2-95, 18.2-96, 18.2-102.1, or 18.2-103 or any other criminal offense defined under subsection F. However, nothing herein shall preclude a merchant from nonsuiting the civil action brought pursuant to this section and proceeding criminally under § 18.2-95, 18.2-96, 18.2-102.1, or 18.2-103 or any other criminal offense defined under subsection F.
E. Prior to the commencement of any action under this section, a merchant may demand, in writing, that an individual who may be civilly liable under this section make appropriate payment to the merchant in consideration for the merchant’s agreement not to commence any legal action under this section.
F. For purposes of this section:
“Employee theft” means the removal of any merchandise or cash from the premises of the merchant’s establishment or the concealment of any merchandise or cash by a person employed by a merchant without the consent of the merchant and with the purpose or intent of appropriating the merchandise or cash to the employee’s own or another’s use without full payment.
“Shoplift” means any one or more of the following acts committed by a person without the consent of the merchant and with the purpose or intent of appropriating merchandise to that person’s own or another’s use without payment, obtaining merchandise at less than its stated sales price, or otherwise depriving a merchant of all or any part of the value or use of merchandise: (i) removing any merchandise from the premises of the merchant’s establishment; (ii) concealing any merchandise; (iii) substituting, altering, removing, or disfiguring any label or price tag; (iv) transferring any merchandise from a container in which that merchandise is displayed or packaged to any other container; (v) disarming any alarm tag attached to any merchandise; or (vi) obtaining or attempting to obtain possession of any merchandise by charging that merchandise to another person without the authority of that person or by charging that merchandise to a fictitious person.
§ 8.01-44.5. Exemplary damages for persons injured by intoxicated drivers.
In any action for personal injury or death arising from the operation of a motor vehicle, engine or train, the finder of fact may, in its discretion, award exemplary damages to the plaintiff if the evidence proves that the defendant acted with malice toward the plaintiff or the defendant’s conduct was so willful or wanton as to show a conscious disregard for the rights of others.
A defendant’s conduct shall be deemed sufficiently willful or wanton as to show a conscious disregard for the rights of others when the evidence proves that (i) when the incident causing the injury or death occurred, the defendant had a blood alcohol concentration of 0.15 percent or more by weight by volume or 0.15 grams or more per 210 liters of breath; (ii) at the time the defendant began drinking alcohol, or during the time he was drinking alcohol, he knew or should have known that his ability to operate a motor vehicle, engine or train would be impaired, or when he was operating a motor vehicle he knew or should have known that his ability to operate a motor vehicle was impaired; and (iii) the defendant’s intoxication was a proximate cause of the injury to or death of the plaintiff.
However, when a defendant has unreasonably refused to submit to a test of his blood alcohol content as required by § 18.2-268.2, a defendant’s conduct shall be deemed sufficiently willful or wanton as to show a conscious disregard for the rights of others when the evidence proves that (i) when the incident causing the injury or death occurred the defendant was intoxicated, which may be established by evidence concerning the conduct or condition of the defendant; (ii) at the time the defendant began drinking alcohol, or during the time he was drinking alcohol, he knew or should have known that his ability to operate a motor vehicle was impaired; and (iii) the defendant’s intoxication was a proximate cause of the injury to the plaintiff or death of the plaintiff’s decedent. A certified copy of a court’s determination of unreasonable refusal pursuant to §18.2-268.3 shall be prima facie evidence that the defendant unreasonably refused to submit to the test.
§ 8.01-44.6. Action for injury to cemetery property.
The owner or operator of a cemetery company may bring an action to recover damages sustained, together with costs and reasonable attorneys’ fees, against any person who willfully or maliciously destroys, mutilates, defaces, injures, or removes any tomb, monument, gravestone, or other structure placed within any cemetery, graveyard, or place of burial, or within any lot belonging to any memorial or monumental association, or any fence, railing, or other work for the protection or ornament of any tomb, monument, gravestone, or other structure aforesaid, or of any cemetery lot within any cemetery. The cemetery owner or operator may recover, as part of damages sustained, the cost of repair or replacement of damaged property, including any labor costs, regardless of whether the property damaged is owned by the cemetery or by another person.
§ 8.01-44.7. Action for tampering with metering device and diverting service.
Any provider of services that have been tampered with or diverted in violation of § 18.2-163 may seek both injunctive and equitable relief, and an award of damages, including reasonable attorney fees and costs. In addition to any other remedy provided by law, the party aggrieved may recover an award of actual damages or $500 whichever is greater for each action.
§ 8.01-45. Action for insulting words.
All words shall be actionable which from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace.
§ 8.01-46. Justification and mitigation of damages.
In any action for defamation, the defendant may justify by alleging and proving that the words spoken or written were true, and, after notice in writing of his intention to do so, given to the plaintiff at the time of, or for, pleading to such action, may give in evidence, in mitigation of damages, that he made or offered an apology to the plaintiff for such defamation before the commencement of the action, or as soon afterwards as he had an opportunity of doing so in case the action shall have been commenced before there was an opportunity of making or offering such apology.
§ 8.01-46.1. Disclosure of employment-related information; presumptions; causes of action; definitions.
A. Any employer who, upon request by a person’s prospective or current employer, furnishes information about that person’s professional conduct, reasons for separation or job performance, including, but not limited to, information contained in any written performance evaluations, shall be immune from civil liability for furnishing such information, provided that the employer is not acting in bad faith. An employer shall be presumed to be acting in good faith. The presumption of good faith shall be rebutted if it is shown by clear and convincing evidence that the employer disclosed such information with knowledge that it was false, or with reckless disregard for whether it is false or not, or with the intent to deliberately mislead.
B. In a civil action brought against an employer for disclosing the information described in subsection A, if the trier of fact determines the employer acted in bad faith, punitive damages may be awarded, as provided by § 8.01-38.1.
C. As used in this section, the following words and phrases shall have the following meanings:
“Employee” means any person, paid or unpaid, in the service of an employer.
“Employer” means any person, firm or corporation, including the Commonwealth of Virginia and its political subdivisions, and their agents, who has one or more employees or individuals performing services under any contract of hire or service, express or implied, oral or written.
“Information” includes, but is not limited to, facts, data and opinions.
“Job performance” includes, but is not limited to, ability, attendance, awards, demotions, duties, effort, evaluations, knowledge, skills, promotions, productivity and disciplinary actions.
“Professional conduct” includes, but is not limited to, the ethical standards which govern the employee’s profession, or lawful conduct which is expected of the employee by the employer.
“Prospective employer” means any employer who is considering a person for employment.
§ 8.01-47. Immunity of school personnel investigating or reporting certain incidents.
In addition to any other immunity he may have, any teacher, instructor, principal, school administrator, school coordinator, guidance counselor or any other professional, administrative or clerical staff member or other personnel of any elementary or secondary school, or institution of higher learning who, in good faith with reasonable cause and without malice, acts to report, investigate or cause any investigation to be made into the activities of any student or students or any other person or persons as they relate to conduct involving bomb threats, firebombs, explosive materials or other similar devices as described in clauses (vi) and (vii) of § 22.1-279.3:1 A, or alcohol or drug use or abuse in or related to the school or institution or in connection with any school or institution activity, shall be immune from all civil liability that might otherwise be incurred or imposed as the result of the making of such a report, investigation or disclosure.
§ 8.01-48. Mitigation in actions against newspapers, etc.
In any civil action against the publisher, owner, editor, reporter or employee of any newspaper, magazine or periodical under § 8.01-45, or for libel or defamation, because of any article, statement or other matter contained in any such newspaper, magazine or periodical, the defendant, whether punitive damages be sought or not, may introduce in evidence in mitigation of general and punitive damages, or either, but not of actual pecuniary damages, all the circumstances of the publication, including the source of the information, its character as affording reasonable ground of reliance, any prior publication elsewhere of similar purport, the lack of negligence or malice on the part of the defendant, the good faith of the defendant in such publication, or that apology or retraction, if any, was made with reasonable promptness and fairness; provided that the defendant may introduce in evidence only such circumstances and to the extent set forth in his or its grounds of defense.
§ 8.01-49. Defamatory statements in radio and television broadcasts.
The owner, licensee or operator of a radio and television broadcasting station or network of stations, and the agents or employees of any such owner, licensee or operator, shall not be liable for any damages for any defamatory statement published or uttered in or as a part of any such broadcast, by one other than such owner, licensee or operator, or agent or employee thereof, unless it shall be alleged and proved by the complaining party, that such owner, licensee, operator, such agent or employee, failed to exercise due care to prevent the publication or utterance of such statement in such broadcast; provided, however, that in no event shall any owner, licensee or operator, or the agents or employees of any such owner, licensee or operator of such a station or network of stations be held liable for damages for any defamatory statement broadcast over the facilities of such station or network by or on behalf of any candidate for public office.
§ 8.01-49.1. Liability for defamatory material on the Internet.
A. No provider or user of an interactive computer service on the Internet shall be treated as the publisher or speaker of any information provided to it by another information content provider. No provider or user of an interactive computer service shall be liable for (i) any action voluntarily taken by it in good faith to restrict access to, or availability of, material that the provider or user considers to be obscene, lewd, lascivious, excessively violent, harassing, or intended to incite hatred on the basis of race, religious conviction, color, or national origin, whether or not such material is constitutionally protected, or (ii) any action taken to enable, or make available to information content providers or others, the technical means to restrict access to information provided by another information content provider.
B. Definitions. As used in this section:
“Information content provider” means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.
“Interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
“Internet” means the international computer network of interoperable packet-switched data networks.
§ 8.01-50. Action for death by wrongful act; how and when to be brought.
A. Whenever the death of a person shall be caused by the wrongful act, neglect, or default of any person or corporation, or of any ship or vessel, and the act, neglect, or default is such as would, if death had not ensued, have entitled the party injured to maintain an action, or to proceed in rem against such ship or vessel or in personam against the owners thereof or those having control of her, and to recover damages in respect thereof, then, and in every such case, the person who, or corporation or ship or vessel which, would have been liable, if death had not ensued, shall be liable to an action for damages, or, if a ship or vessel, to a libel in rem, and her owners or those responsible for her acts or defaults or negligence to a libel in personam, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances, as amount in law to a felony.
B. Every such action under this section shall be brought by and in the name of the personal representative of such deceased person within the time limits specified in § 8.01-244.
C. If the deceased person was an infant who was in the custody of a parent pursuant to an order of court or written agreement with the other parent, administration shall be granted first to the parent having custody; however, that parent may waive his right to qualify in favor of any other person designated by him. If no such parent or his designee applies for administration within thirty days from the death of the infant, administration shall be granted as in other cases.
§ 8.01-50.1. Certification of expert witness opinion at time of service of process.
Every motion for judgment, counter claim, or third party claim in any action pursuant to § 8.01-50 for wrongful death against a health care provider, at the time the plaintiff requests service of process upon a defendant, or requests a defendant to accept service of process, shall be deemed a certification that the plaintiff has obtained from an expert witness whom the plaintiff reasonably believes would qualify as an expert witness pursuant to subsection A of § 8.01-581.20 a written opinion signed by the expert witness that, based upon a reasonable understanding of the facts, the defendant for whom service of process has been requested deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed. This certification is not necessary if the plaintiff, in good faith, alleges in his wrongful death action a medical malpractice theory of liability where expert testimony is unnecessary because the alleged act of negligence clearly lies within the range of the jury’s common knowledge and experience.
The certifying expert shall not be required to be an expert expected to testify at trial nor shall any defendant be entitled to discover the identity or qualifications of the certifying expert or the nature of the certifying expert’s opinions. Should the certifying expert be identified as an expert expected to testify at trial, the opinions and bases therefor shall be discoverable pursuant to Rule 4:1 of the Rules of Supreme Court of Virginia with the exception of the expert’s status as a certifying expert.
Upon written request of any defendant, the plaintiff shall, within 10 business days after receipt of such request, provide the defendant with a certification form which affirms that the plaintiff had obtained the necessary certifying expert opinion at the time service was requested or affirms that the plaintiff did not need to obtain a certifying expert opinion. If the plaintiff did not obtain a necessary certifying expert opinion at the time the plaintiff requested service of process on a defendant, the court shall impose sanctions according to the provisions of § 8.01-271.1 and may dismiss the case with prejudice.
§ 8.01-51. No action when deceased has compromised claim.
No action shall be maintained by the personal representative of one who, after injury, has compromised for such injury and accepted satisfaction therefor previous to his death.
§ 8.01-52. Amount of damages.
The jury or the court, as the case may be, in any such action under § 8.01-50 may award such damages as to it may seem fair and just. The verdict or judgment of the court trying the case without a jury shall include, but may not be limited to, damages for the following:
1. Sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent;
2. Compensation for reasonably expected loss of (i) income of the decedent and (ii) services, protection, care and assistance provided by the decedent;
3. Expenses for the care, treatment and hospitalization of the decedent incident to the injury resulting in death;
4. Reasonable funeral expenses; and
5. Punitive damages may be recovered for willful or wanton conduct, or such recklessness as evinces a conscious disregard for the safety of others.
Damages recoverable under 3, 4 and 5 above shall be specifically stated by the jury or the court, as the case may be. Damages recoverable under 3 and 4 above shall be apportioned among the creditors who rendered such services, as their respective interests may appear. Competent expert testimony shall be admissible in proving damages recoverable under 2 above.
The court shall apportion the costs of the action as it shall deem proper.
§ 8.01-52.1. Admissibility of expressions of sympathy.
In any wrongful death action brought pursuant to § 8.01-50 against a health care provider, or in any arbitration or medical malpractice review panel proceeding related to such wrongful death action, the portion of statements, writings, affirmations, benevolent conduct, or benevolent gestures expressing sympathy, commiseration, condolence, compassion, or a general sense of benevolence, together with apologies that are made by a health care provider or an agent of a health care provider to a relative of the patient, or a representative of the patient about the death of the patient as a result of the unanticipated outcome of health care, shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest. A statement of fault that is part of or in addition to any of the above shall not be made inadmissible by this section.
For purposes of this section, unless the context otherwise requires:
“Health care” has the same definition as provided in § 8.01-581.1.
“Health care provider” has the same definition as provided in § 8.01-581.1.
“Relative” means a decedent’s spouse, parent, grandparent, stepfather, stepmother, child, grandchild, brother, sister, half-brother, half-sister, or spouse’s parents. In addition, “relative” includes any person who had a family-type relationship with the decedent.
“Representative” means a legal guardian, attorney, person designated to make decisions on behalf of a patient under a medical power of attorney, or any person recognized in law or custom as a patient’s agent.
“Unanticipated outcome” means the outcome of the delivery of health care that differs from an expected result.
§ 8.01-53. Class and beneficiaries; when determined.
A. The damages awarded pursuant to § 8.01-52 shall be distributed as specified under § 8.01-54 to (i) the surviving spouse, children of the deceased and children of any deceased child of the deceased or (ii) if there be none such, then to the parents, brothers and sisters of the deceased, and to any other relative who is primarily dependent on the decedent for support or services and is also a member of the same household as the decedent or (iii) if the decedent has left both surviving spouse and parent or parents, but no child or grandchild, the award shall be distributed to the surviving spouse and such parent or parents or (iv) if there are survivors under clause (i) or clause (iii), the award shall be distributed to those beneficiaries and to any other relative who is primarily dependent on the decedent for support or services and is also a member of the same household as the decedent or (v) if no survivors exist under clause (i), (ii), (iii), or (iv), the award shall be distributed in the course of descents as provided for in § 64.1-1. Provided, however, no parent whose parental rights and responsibilities have been terminated by a court of competent jurisdiction or pursuant to a permanent entrustment agreement with a child welfare agency shall be eligible as a beneficiary under this section. For purposes of this section, a relative is any person related to the decedent by blood, marriage, or adoption and also includes a stepchild of the decedent.
B. The class and beneficiaries thereof eligible to receive such distribution shall be fixed (i) at the time the verdict is entered if the jury makes the specification, or (ii) at the time the judgment is rendered if the court specifies the distribution.
C. A beneficiary may renounce his interest in any claim brought pursuant to § 8.01-50 and, in such event, the damages shall be distributed to the beneficiaries in the same class as the renouncing beneficiary or, if there are none, to the beneficiaries in any subsequent class in the order of priority set forth in subsection A.
§ 8.01-54. Judgment to distribute recovery when verdict fails to do so.
A. The verdict may and the judgment of the court shall in all cases specify the amount or the proportion to be received by each of the beneficiaries, if there be any. No verdict shall be set aside for failure to make such specification.
B. If either party shall so request the case shall be submitted to the jury with instructions to specify the distribution of the award, if any. If the jury be unable to agree upon or fail to make such distribution, the court shall specify the distribution and enter judgment accordingly. For the purpose of distribution the court may hear additional evidence.
C. The amount recovered in any such action shall be paid to the personal representative who shall first pay the costs and reasonable attorney’s fees and then distribute the amount specifically allocated to the payment of hospital, medical, and funeral expenses. The remainder of the amount recovered shall thereafter be distributed by the personal representative, as specified in subsections A and B above, to the beneficiaries set forth in § 8.01-53; provided that any distribution made to any such beneficiaries shall be free from all debts and liabilities of the decedent. If there be no such beneficiaries, the amount so recovered shall be assets in the hands of the personal representative to be disposed of according to law.
§ 8.01-55. Compromise of claim for death by wrongful act.
The personal representative of the deceased may compromise any claim to damages arising under or by virtue of § 8.01-50, including claims under the provision of a liability insurance policy, before or after an action is brought, with the approval of the court in which the action was brought, or if an action has not been brought, with the consent of any circuit court. Such approval may be applied for on petition to such court, by the personal representative, or by any potential defendant, or by any interested insurance carrier. If a potential defendant or any insurance carrier petitions the court for approval, the personal representative shall be made a party to the proceeding. The petition shall state the compromise, its terms and the reason therefor. The court shall require the convening of the parties in interest in person or by their authorized representative, but it shall not be necessary to convene grandchildren whose living parents are made parties to the proceeding. The parties in interest shall be deemed to be convened if each such party (i) endorses the order by which the court approves the compromise or (ii) is given notice of the hearing and proposed compromise as provided in § 8.01-296 if a resident of the Commonwealth or as provided in § 8.01-320 if a nonresident, or is otherwise given reasonable notice of the hearing and proposed compromise as may be required by the court.
If the court approves the compromise, and the parties in interest do not agree upon the distribution to be made of what has been or may be received by the personal representative under such compromise, or if any of them are incapable of making a valid agreement, the court shall direct such distribution as a jury might direct under § 8.01-52 as to damages awarded by them. In other respects, what is received by the personal representative under the compromise shall be treated as if recovered by him in an action under § 8.01-52.
§ 8.01-56. When right of action not to determine nor action to abate.
The right of action under § 8.01-50 shall not determine, nor the action, when brought, abate by the death, dissolution, or other termination of a defendant; and when a person who has brought an action for personal injury dies pending the action, such action may be revived in the name of his personal representative. If death resulted from the injury for which the action was originally brought, a motion for judgment and other pleadings shall be amended so as to conform to an action under §8.01-50, and the case proceeded with as if the action had been brought under such section. In such cases, however, there shall be but one recovery for the same injury.
§ 8.01-57. Liability of railroads for injury to certain employees.
Every common carrier by railroad engaged in intrastate commerce shall be liable in damages to any of its employees suffering injury while employed by such carrier or, in the case of the death of any such employee, to his personal representative, for such injury or death, resulting in whole or in part from the wrongful act or neglect of any of its officers, agents, servants, or employees, or by reason of any defect, or insufficiency due to its neglect in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment, except when such employee is injured while engaged in interstate commerce, and except when such employee is injured in the course of his regular employment and such regular employment does not expose such employee to the hazards incident to the maintenance, use and operation of such railroad. If the action be for the death of an employee, §§ 8.01-50 through 8.01-56 shall apply thereto.
§ 8.01-58. Contributory negligence no bar to recovery; violation of safety appliance acts.
In all actions brought against any such common carrier to recover damages for personal injuries to any employee or when such injuries have resulted in his death, the fact that such employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee; and no such employee, who may be injured or killed, shall be held to have been guilty of contributory negligence in any case when the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.
§ 8.01-59. Assumption of risk; violation of safety appliance acts.
In any action brought against any common carrier, under or by virtue of § 8.01-57, to recover damages for injuries to, or death of, any of its employees, the knowledge of any employee injured or killed of the defective or unsafe character or condition of any machinery, ways, appliances, or structures of such carrier shall not of itself be a bar to recovery for an injury or death caused thereby, nor shall such employee be held to have assumed the risk of his employment in any case in which the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury, or death of such employee.
§ 8.01-60. Contracts exempting from liability void; set-off of insurance.
Any contract, rule, regulation or device whatsoever the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by § 8.01-57, shall to that extent be void; but in any action brought against any such common carrier under or by virtue of such section, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief, benefit or indemnity company that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which such action was brought.
§ 8.01-61. Definition of “common carrier” as used in article.
The term “common carrier” as used in §§ 8.01-57 to 8.01-60 shall include the receivers or other persons or corporations charged with the duty of the management or operation of the business of a common carrier by railroad; but shall not include persons, firms or corporations owning or operating railroads when such railroads are primarily and chiefly used as incidental to the operation of coal, gypsum or iron mines or saw mills, nor shall it apply to any railroad owned or operated by any county.
§ 8.01-62. Action may embrace liability under both State and federal acts.
The motion for judgment or other pleading in any such action may embrace a cause of action growing out of any statute of the United States or this Commonwealth for such injury or death, without being demurrable on this account, and without the plaintiff being required to elect under which statute he claims. Sections 8.01-57 through 8.01-61 shall not apply to electric railways operated wholly within this Commonwealth.
§ 8.01-63. Liability for death or injury to guest in motor vehicle.
Any person transported by the owner or operator of any motor vehicle as a guest without payment for such transportation and any personal representative of any such guest so transported shall be entitled to recover damages against such owner or operator for death or injuries to the person or property of such guest resulting from the negligent operation of such motor vehicle. However, this statute does not limit any defense otherwise available to the owner or operator.
§ 8.01-64. Liability for negligence of minor.
Every owner of a motor vehicle causing or knowingly permitting a minor under the age of sixteen years who is not permitted under the provisions of § 46.2-335 to drive such a vehicle upon a highway, and any person who gives or furnishes a motor vehicle to such minor, shall be jointly or severally liable with such minor for any damages caused by the negligence of such minor in driving such vehicle.
§ 8.01-65. Defense of lack of consent of owner.
It shall be a valid defense to any action brought for the negligent operation of a motor vehicle for the owner of such vehicle to prove that the same was being driven or used without his knowledge or consent, express or implied, but the burden of proof thereof shall be on such owner.
§ 8.01-66. Recovery of damages for loss of use of vehicle.
A. Whenever any person is entitled to recover for damage to or destruction of a motor vehicle, he shall, in addition to any other damages to which he may be legally entitled, be entitled to recover the reasonable cost which was actually incurred in hiring a comparable substitute vehicle for the period of time during which such person is deprived of the use of his motor vehicle. However, such rental period shall not exceed a reasonable period of time for such repairs to be made or if the original vehicle is a total loss, a reasonable time to purchase a new vehicle. Nothing herein contained shall relieve the claimant of the duty to mitigate damages.
B. Whenever any insurance company licensed in this Commonwealth to write insurance as defined in § 38.2-124 or any self-insured company refuses or fails to provide a comparable temporary substitute vehicle to any person entitled to recover the actual cost of hiring a substitute vehicle as set forth in subsection A, and if the trial judge of a court of proper jurisdiction subsequently finds that such refusal or failure was not made in good faith, such company shall be liable to that person in the amount of $500 or double the amount of the rental cost he is entitled to recover under subsection A, whichever amount is greater. If the trial court finds that an action brought against an insurance company or any self-insured company under subsection B is frivolous, or not to have been brought in good faith, the court may in its discretion require the plaintiff to pay the reasonable attorney’s fees, not to exceed $350, incurred by the defendant in defending the action. This section shall in no way preclude any party from seeking such additional common law remedies as might otherwise be available.
§ 8.01-66.1. Remedy for arbitrary refusal of motor vehicle insurance claim.
A. Whenever any insurance company licensed in this Commonwealth to write insurance as defined in § 38.2-124 denies, refuses or fails to pay to its insured a claim of $3,500 or less in excess of the deductible, if any, under the provisions of a policy of motor vehicle insurance issued by such company to the insured and it is subsequently found by the judge of a court of proper jurisdiction that such denial, refusal or failure to pay was not made in good faith, the company shall be liable to the insured in an amount double the amount otherwise due and payable under the provisions of the insured’s policy of motor vehicle insurance, together with reasonable attorney’s fees and expenses.
The provisions of this subsection shall be construed to include an insurance company’s refusal or failure to pay medical expenses to persons covered under the terms of any medical payments coverage extended under a policy of motor vehicle insurance, when the amount of the claim therefor is $3,500 or less and the refusal was not made in good faith.
B. Notwithstanding the provisions of subsection A, whenever any insurance company licensed in this Commonwealth to write insurance as defined in § 38.2-124 denies, refuses or fails to pay to a third party claimant, on behalf of an insured to whom such company has issued a policy of motor vehicle liability insurance, a claim of $3,500 or less made by such third party claimant and if the judge of a court of proper jurisdiction finds that the insured is liable for the claim, the third party claimant shall have a cause of action against the insurance company. If the judge finds that such denial, refusal or failure to pay was not made in good faith, the company, in addition to the liability assumed by the company under the provisions of the insured’s policy of motor vehicle liability insurance, shall be liable to the third party claimant in an amount double the amount of the judgment awarded the third party claimant, together with reasonable attorney’s fees and expenses.
C. Notwithstanding the provisions of subsections A and B whenever any person who has paid a fee to the Department of Motor Vehicles to register an uninsured motor vehicle pursuant to § 46.2-706 or any person who has furnished proof of financial responsibility in lieu of obtaining a policy or policies of motor vehicle liability insurance pursuant to the provisions of Title 46.2 or any person who is required and has failed either to pay such fee or to furnish such proof pursuant to the provisions of Title 46.2 denies, refuses or fails to pay to a claimant a claim of $3,500 or less made by such claimant as a result of a motor vehicle accident; and if the trial judge of a court of proper jurisdiction finds that such denial, refusal or failure to pay was not made in good faith, such person shall be liable to the claimant in an amount double the amount otherwise due and payable together with reasonable attorney’s fees and expenses.
For the purposes of this subsection C “person” shall mean and include any natural person, firm, partnership, association or corporation.
D. 1. Whenever a court of proper jurisdiction finds that an insurance company licensed in this Commonwealth to write insurance as defined in § 38.2-124 denies, refuses or fails to pay to its insured a claim of more than $3,500 in excess of the deductible, if any, under the provisions of a policy of motor vehicle insurance issued by such company to the insured and it is subsequently found by the judge of a court of proper jurisdiction that such denial, refusal or failure to pay was not made in good faith, the company shall be liable to the insured in the amount otherwise due and payable under the provisions of the insured’s policy of motor vehicle insurance, plus interest on the amount due at double the rate provided in § 6.2-301 from the date that the claim was submitted to the insurer or its authorized agent, together with reasonable attorney’s fees and expenses.
2. The provisions of this subsection shall be construed to include an insurance company’s refusal or failure to pay medical expenses to persons covered under the terms of any medical payments coverage extended under a policy of motor vehicle insurance when the refusal was not made in good faith.
§ 8.01-66.2. Lien against person whose negligence causes injury.
Whenever any person sustains personal injuries caused by the alleged negligence of another and receives treatment in any hospital, public or private, or nursing home, or receives medical attention or treatment from any physician, or receives nursing service or care from any registered nurse, or receives physical therapy treatment from any registered physical therapist in this Commonwealth, or receives medicine from a pharmacy, or receives any ambulance service, such hospital, nursing home, physician, nurse, physical therapist, pharmacy or ambulance service shall each have a lien for the amount of a just and reasonable charge for the service rendered, but not exceeding $2,500 in the case of a hospital or nursing home, $750 for each physician, nurse, physical therapist, or pharmacy, and $200 for each ambulance service on the claim of such injured person or of his personal representative against the person, firm or corporation whose negligence is alleged to have caused such injuries.
§ 8.01-66.3. Lien inferior to claim of attorney or personal representative.
The lien provided for in § 8.01-66.2 shall be of inferior dignity to the claim or lien of the attorney of such injured person or of his personal representative for professional services for representing such injured person or his personal representative in his claim or suit for damages for such personal injuries.
§ 8.01-66.4. Subrogation.
Any municipal corporation or any person, firm or corporation who may pay the charges for which a lien is provided in §8.01-66.2 shall be subrogated to such lien.
§ 8.01-66.5. Written notice required.
A. No lien provided for in § 8.01-66.2 or § 8.01-66.9 shall be created or become effective in favor of the Commonwealth, an institution thereof, or a hospital, nursing home, physician, nurse, physical therapist, or ambulance service unless and until a written notice of lien setting forth the name of the Commonwealth, or the institution, hospital, nursing home, physician, nurse, physical therapist, or ambulance service and the name of the injured person, has been served upon or given to the person, firm or corporation whose negligence is alleged to have caused such injuries, or to the attorney for the injured party, or to the injured party. Such written notice of lien shall not be required if the attorney for the injured party knew that medical services were either provided or paid for by the Commonwealth.
B. In any action for personal injuries or wrongful death against a nursing home or its agents, if the Department of Medical Assistance Services has paid for any health care services provided to the injured party or decedent relating to the action, the injured party or personal representative shall, within 60 days of filing a lawsuit or 21 days of determining that the Department of Medical Assistance Services has paid for such health care services, whichever is later, give written notice to the Department of Medical Assistance Services that the lawsuit has been filed. The Department of Medical Assistance Services shall provide a written response, stating the amount of the lien as of the date of their response, within 60 days of receiving a request for that information from the injured party or personal representative.
§ 8.01-66.6. Liability for reasonable charges for services.
The notice set forth in subsection A of § 8.01-66.5, when served upon or given to the person, firm or corporation whose negligence is alleged to have caused injuries or to the attorney for the injured party, shall have the effect of making such person, firm, corporation or attorney liable for the reasonable charges for the services rendered the injured person to the extent of the amount paid to or received by such injured party or his personal representative exclusive of attorney’s fees, but, except in liens created under § 8.01-66.9, not in excess of the maximum amounts prescribed in § 8.01-66.2.
§ 8.01-66.7. Hearing and disposal of claim of unreasonableness.
If the injured person questions the reasonableness of the charges made by a hospital, nurse, physician or ambulance service claiming a lien pursuant to § 8.01-66.2, the injured person or the hospital, physician, nurse or ambulance service may file, in the court that would have jurisdiction of such claim if such claim were asserted against the injured person by such hospital, physician, nurse, or ambulance service, a petition setting forth the facts. The court shall hear and dispose of the matter in a summary way after five days’ notice to the other party in interest.
§ 8.01-66.8. Petition to enforce lien.
If suit is instituted by an injured person or his personal representative against the person, firm or corporation allegedly causing the person’s injuries, a hospital, nursing home, physician, nurse, or ambulance service, in lieu of proceeding according to §§8.01-66.5 to 8.01-66.7, may file in the court wherein such suit is pending a petition to enforce the lien provided for in § 8.01-66.2 or § 8.01-66.9. Such petition shall be heard and disposed of in a summary way.
§ 8.01-66.9. Lien in favor of Commonwealth, its programs, institutions or departments on claim for personal injuries.
Whenever any person sustains personal injuries and receives treatment in any hospital, public or private, or nursing home, or receives medical attention or treatment from any physician, or receives nursing services or care from any registered nurse in this Commonwealth, or receives pharmaceutical goods or any type of medical or rehabilitative device, apparatus, or treatment which is paid for pursuant to the Virginia Medical Assistance Program, the State/Local Hospitalization Program and other programs of the Department of Medical Assistance Services, the Maternal and Child Health Program, or the Children’s Specialty Services Program, or provided at or paid for by any hospital or rehabilitation center operated by the Commonwealth, the Department of Rehabilitative Services or any state institution of higher education, the Commonwealth shall have a lien for the total amount paid pursuant to such program, and the Commonwealth or such Department or institution shall have a lien for the total amount due for the services, equipment or devices provided at or paid for by such hospital or center operated by the Commonwealth or such Department or institution, or any portion thereof compromised pursuant to the authority granted under § 2.2-514, on the claim of such injured person or of his personal representative against the person, firm, or corporation who is alleged to have caused such injuries.
The Commonwealth or such Department or institution shall also have a lien on the claim of the injured person or his personal representative for any funds which may be due him from insurance moneys received for such medical services under the injured party’s own insurance coverage or through an uninsured or underinsured motorist insurance coverage endorsement. The lien granted to the Commonwealth for the total amounts paid pursuant to the Virginia Medical Assistance Program, the State/Local Hospitalization Program and other programs of the Department of Medical Assistance Services, the Maternal and Child Health Program, or the Children’s Specialty Services Program shall have priority over the lien for the amounts due for services, equipment or devices provided at a hospital or center operated by the Commonwealth. The Commonwealth’s or such Department’s or institution’s lien shall be inferior to any lien for payment of reasonable attorney’s fees and costs, but shall be superior to all other liens created by the provisions of this chapter and otherwise. Expenses for reasonable legal fees and costs shall be deducted from the total amount recovered. The amount of the lien may be compromised pursuant to §2.2-514.
The court in which a suit by an injured person or his personal representative has been filed against the person, firm or corporation alleged to have caused such injuries or in which such suit may properly be filed, may, upon motion or petition by the injured person, his personal representative or his attorney, and after written notice is given to all those holding liens attaching to the recovery, reduce the amount of the liens and apportion the recovery, whether by verdict or negotiated settlement, between the plaintiff, the plaintiff’s attorney, and the Commonwealth or such Department or institution as the equities of the case may appear, provided that the injured person, his personal representative or attorney has made a good faith effort to negotiate a compromise pursuant to § 2.2-514. The court shall set forth the basis for any such reduction in a written order.
§ 8.01-66.9:1. Lien against recovery for medical treatment provided to prisoner.
In any civil action brought for injuries or death suffered by any person while confined in a state or local correctional facility, the Commonwealth or the locality, as the case may be, shall have a lien against any recovery by settlement or verdict for all actual expenses incurred by the Commonwealth or the locality for medical, surgical and hospital treatment and supplies for the prisoner, whether provided by public or private health care providers, as a result of the injury. Such lien shall be subject to the payment of reasonable attorneys’ fees and costs.
§ 8.01-66.10. Death claims settled by compromise or suit.
In case of personal injuries resulting in death and settlement therefor by compromise or suit under the provisions of §§ 8.01-50 to 8.01-56, the liens provided for in this article may be asserted against the recovery, or against the estate of the decedent, but not both. If asserted against the recovery and paid, such liens shall attach pro rata to the amounts received respectively by such beneficiaries as are designated to receive the moneys distributed and in their respective amounts; and such beneficiaries, or the personal representative for their benefit, shall be subrogated to the liens against the estate of such decedent provided for by § 64.1-157.
§ 8.01-66.11. Necessity for settlement or judgment.
Nothing contained in this article shall be construed as imposing liability on any person, firm or corporation whose negligence is alleged to have caused injuries or on the attorney for the injured party where no settlement is made, or, in case of an attorney, where no funds come into his hands, or where no judgment is obtained in favor of such injured party or his personal representative.
§ 8.01-66.12. Term physician to include chiropractor.
Wherever the term physician is used in this article, it shall include chiropractor.
§ 8.01-67. Definitions; persons under a disability; fiduciary.
The terms “fiduciary” and “person under a disability” as used in this article shall have the meanings ascribed to them in § 8.01-2.
§ 8.01-68. Jurisdiction.
Circuit courts in the exercise of their equity jurisdiction, upon being satisfied by competent evidence independent of the admissions in the pleadings or elsewhere in the proceedings, that one or more of the types of relief hereinafter specified will promote the interest of an owner of land, or any interest therein, who is a person under a disability as defined in this chapter for whom a conservator has not been appointed pursuant to Chapter 10 (§ 37.2-1000 et seq.) of Title 37.2, and taking into consideration the rights of any other party interested in such land, may order the sale, exchange, lease, encumbrance, redemption, or other disposition of such real estate as to the court may seem just and equitable.
In the case of the sales of such lands or interest therein, the court shall be governed by the established practices for judicial sales generally except as they may be specifically modified by provisions of this article.
§ 8.01-69. Commencement of suit; parties.
Any of the relief specified in this article may be sought by bill in equity filed by a fiduciary, as defined in this article, or by any other person having an interest in the subject matter of the proceedings. A person under a disability, fiduciary, all those who would be the heirs or distributees of the defendant person under disability if he had died at the time of the commencement of this proceeding, except as provided in § 8.01-78, and all other persons interested in the subject matter of the proceeding, shall be made parties defendant when not parties plaintiff.
§ 8.01-72. When death to abate such suit.
A suit instituted under this article shall abate by reason of the death of the person under a disability unless a sale, exchange, lease, encumbrance, redemption, or other disposition of real estate has been confirmed by a decree in such suit.
§ 8.01-73. Guardian ad litem to be appointed.
In every suit brought under this article, a guardian ad litem shall be appointed for any person under a disability not otherwise represented by a guardian or committee, or trustee appointed pursuant to § 37.2-1003, and for all persons proceeded against by an order or publication under the designation of “parties unknown” as provided for in § 8.01-316. The guardian ad litem shall file an answer as such.
§ 8.01-74. Leases on behalf of persons under disability; new leases.
A. Leases on behalf of persons under a disability. – When a person under a disability is entitled to or bound to renew any lease, any fiduciary on behalf of such person under a disability or any other interested person may apply by motion after reasonable notice to parties having a present interest in the property to be leased, to the circuit court as prescribed in subdivision 3 of § 8.01-261, and by the order of the court any person appointed by it may, from time to time, surrender or accept a surrender of such lease, or take or make a new lease of the same premises for such term and with such provisions as the court directs. Such reasonable sums as are incurred to renew any such lease shall, with interest thereon, be paid out of the profits of the leasehold premises, and be a charge thereon until payment.
B. New leases. – When it shall appear to a circuit court that the interests of a person under a disability will be promoted by the execution of a new lease, where no prior lease exists, any fiduciary or any other person interested in the subject matter may apply in like summary fashion as stated in subsection A of this section and upon showing to the satisfaction of the court that the provisions therein were complied with, including reasonable notice to parties having a present interest to the property to be leased, the circuit court upon the consideration of the probable length of the disability and the duration of the proposed lease, may order such lease to be executed. Such lease may be renewed or surrendered at any time pursuant to subsection A of this section and under such conditions as the court may direct.
§ 8.01-75. Who not to be purchaser.
At any sale under this article neither a fiduciary for a person under a disability, as defined under this article, nor the guardian ad litem shall be a purchaser directly or indirectly; provided, however, such fiduciary may be a purchaser if the court finds that such a purchase by the fiduciary is in the best interests of the person under a disability.
§ 8.01-76. How proceeds from disposition to be secured and applied; when same may be paid over.
The proceeds of sale, or rents, income, or royalties, arising from the sale or lease, or other disposition, of lands of persons under a disability, whether in a suit for sale or lease thereof, or in a suit for partition, or in condemnation proceedings, shall be invested under the direction of the court for the use and benefit of the persons entitled to the estate; and in case of a trust estate subject to the uses, limitations, and conditions, contained in the writing creating the trust. The court shall take ample security for all investments so made, and from time to time require additional security, if necessary, and make any proper order for the faithful application and safe investment of the fund, and for the management and preservation of any properties or securities in which the same has been invested, and for the protection of the rights of all persons interested therein, whether such rights be vested or contingent, but nothing hereinbefore contained shall prevent the court having charge thereof from directing such funds to be paid over to the legally appointed and qualified fiduciary (as defined in § 8.01-67) of the person under a disability, whenever the court is satisfied that such fiduciary has executed sufficient bond; or from applying at any time all or any portion thereof to the proper needs and requirements of the person under a disability. Provided, however, that if such funds do not exceed $4,000, the court, in its discretion and without the intervention of a fiduciary, may pay such funds to any person deemed appropriate by the court for the use and benefit of a person under a disability, whether such person resides within or without the Commonwealth. Such funds not in excess of $4,000 shall, when paid over to such person deemed appropriate, be treated as personal property.
§ 8.01-77. What proceeds of sale to pass as real estate.
The proceeds received under the preceding provisions of this article or under Article 9 (§ 8.01-81 et seq.) of this chapter, from the sale or division of real estate of a person under a disability or so much thereof as may remain at such person’s death, if such person continue until death incapable from any cause of making a will, shall pass to those who would have been entitled to the land if it had not been sold or divided.
§ 8.01-78. Alternate procedure for sale of real estate of person under disability.
If the personal estate of any person under a disability for whom a fiduciary has been appointed under any of the provisions of Title 37.2, be insufficient for the discharge of his debts or if the personal estate or residue thereof after payment of debts and the rents and profits of his real estate be insufficient for his maintenance and that of his family, if any, the fiduciary of his estate may petition a circuit court for authority to mortgage, lease or sell so much of the real estate of such person as may be necessary for the purposes aforesaid, or any of them, setting forth in the petition the particulars and amount of the estate, real and personal, and a statement of the application of any personal estate, and debts and demands existing against the estate. Those persons who would be heirs or distributees of the person under a disability if he had died at the time of commencement of the proceeding need not be made parties defendant to a proceeding pursuant to this section
§ 8.01-79. Same; reference of petition to commissioner.
On the presenting of such petition it may be referred to a commissioner in chancery or to a special commissioner appointed by the court, to inquire into and report upon the matters therein contained, whose duty it shall be to make such inquiry, to give notice to and hear all parties interested in such real estate and to report thereon with all convenient speed.
§ 8.01-80. Same; action of court on report; application of proceeds of transaction.
If upon the filing of the report and examination of the matter it shall appear to the court to be proper, an order shall be entered for the mortgaging, leasing, or sale, on such terms and conditions as the court may deem proper, of so much of such real estate as may be necessary; but no conveyance shall be executed until such shall have been confirmed by the court. The proceeds of such transactions shall be secured and applied under the order of the court.
§ 8.01-81. Who may compel partition of land; jurisdiction; validation of certain partitions of mineral rights.
Tenants in common, joint tenants, executors with the power to sell, and coparceners of real property, including mineral rights east and south of the Clinch River, shall be compellable to make partition and may compel partition, but in the case of an executor only if the power of sale is properly exercisable at that time under the circumstances; and a lien creditor or any owner of undivided estate in real estate may also compel partition for the purpose of subjecting the estate of his debtor or the rents and profits thereof to the satisfaction of his lien. Any court having general equity jurisdiction shall have jurisdiction in cases of partition; and in the exercise of such jurisdiction may take cognizance of all questions of law affecting the legal title that may arise in any proceedings, between such tenants in common, joint tenants, executors with the power to sell, coparceners and lien creditors.
All partitions of mineral rights heretofore had, are hereby validated.
§ 8.01-82. When shares of two or more laid off together.
Any two or more of the parties, if they so elect, may have their shares laid off together when partition can be conveniently made in that way
§ 8.01-83. Allotment to one or more parties, or sale, in lieu of partition.
When partition cannot be conveniently made, the entire subject may be allotted to any one or more of the parties who will accept it and pay therefor to the other parties such sums of money as their interest therein may entitle them to; or in any case in which partition cannot be conveniently made, if the interest of those who are entitled to the subject, or its proceeds, will be promoted by a sale of the entire subject, or allotment of part and sale of the residue, the court, notwithstanding any of those entitled may be a person under a disability, may order such sale, or an allotment of a part thereof to any one or more of the parties who will accept it and pay therefor to the other parties such sums of money as their interest therein may entitle them to, and a sale of the residue, and make distribution of the proceeds of sale, according to the respective rights of those entitled, taking care, when there are creditors of any deceased person who was a tenant in common, joint tenant, or coparcener, to have the proceeds of such deceased person’s part applied according to the rights of such creditors.
§ 8.01-84. Application of proceeds of sale to payment of lien.
When there are liens on the interest of any party in the subject so sold, the court may, on the petition of any person holding a lien, ascertain the liens, and apply the dividend of such party in the proceeds of sale to the discharge thereof, so far as the same may be necessary.
§ 8.01-85. Disposition of share in proceeds of person under disability.
The court making an order for sale shall, when the dividend of a party exceeds $2500, if such party be a person under a disability, order the same to be disposed as the proceeds of a sale under the provisions of § 8.01-76 are required to be invested.
Repealed by Acts 1990, c. 831, effective January 1, 1991
§ 8.01-87. Validation of certain partitions prior to act of 1922.
All partitions heretofore had, when the proceedings conformed to the law as it existed prior to the amendment of § 5281 of the Code of 1919 by an act approved March 27, 1922, although they did not conform to such section as it read under the amendment of 1922, as aforesaid, are hereby validated; but nothing in this validating section shall be construed as intended to affect vested rights.
§ 8.01-88. Decree of partition to vest legal title.
A decree heretofore or hereafter made, confirming any partition or allotment in a suit for partition, shall vest in the respective co-owners, between or to whom the partition or allotment is made, the title to their shares under the partition or allotment, in like manner and to the same extent, as if such decree direct such title be conveyed to them and the conveyance was made accordingly.
§ 8.01-89. When proceeds of sale deemed personal estate.
The proceeds of any sale made under § 8.01-83 shall, except as provided in § 8.01-77, be deemed personal estate from the time of the confirmation of such sale by the court.
§ 8.01-90. When name or share of parties unknown.
If the name or share of any person interested in the subject of the partition be unknown, so much as is known in relation thereto shall be stated in the bill.
§ 8.01-91. Effect of partition or sale on lessee’s rights.
Any person who, before the partition or sale, was lessee of any of the lands divided or sold, shall hold the same of him to whom such land is allotted or sold on the same term on which by his lease he held it before the partition.
§ 8.01-92. Allowance of attorneys’ fees out of unrepresented shares.
In any partition suit when there are unrepresented shares, the court shall allow reasonable fees to the attorney or attorneys bringing the action on account of the services rendered to the parceners unrepresented by counsel.
§ 8.01-93. Partition of goods, etc., by sale, if necessary.
When an equal division of goods or chattels cannot be made in kind among those entitled, a court of equity may direct the sale of the same, and the distribution of the proceeds according to the rights of the parties.
§ 8.01-94. When sold, leased or exchanged.
Whenever an interest in property, real or personal, is held by a person, natural or artificial, with remainder or limitation over contingent upon any event, or for his life or for the life of another, and there is limited thereon any other estate, vested or contingent, to any other such person, whether in being or to be thereafter born or created in any manner whatsoever, such person holding an interest in the property so subject to remainder or limitation over or for his own life, or his committee, guardian, if a minor, or conservator, or, if the estate so held be for the life of another, then his heir or personal representative, as the case may be, may for the purpose of obtaining a sale or leasing or exchange of the fee simple interest or absolute estate in such property, if the sale or leasing or exchange thereof is not prohibited by the instrument creating the estate, and the remaindermen, or any of them, whether in being or hereafter to be born or created, are from any cause incapable at the time of filing the bill as herein provided or of giving their assent, or the remainder or limitation over is contingent or defeasible, file a bill in equity in the circuit court stating plainly the property to be sold or leased or exchanged and all facts calculated to show the propriety of such sale or lease or exchange. A like bill may be filed for the sale or leasing or exchange of the remainder in such estate by a remainderman, his guardian, conservator or committee. All persons interested in the property presently or contingently, other than the plaintiff, shall be made defendants, and if such remaindermen be not born or created at such time of filing such bill, such suit shall not for such cause abate, but such unborn person or uncreated artificial person shall be made defendant and subject to the decree of the court by the name of “person unknown or person yet to be born or created,” and the court shall upon the filing of such bill appoint a guardian ad litem to defend the interest of such unborn person or uncreated artificial person. If it be clearly shown independently of any admissions in the pleadings that the interest of the plaintiff will be promoted and the rights of no other person will be violated thereby, the court may decree a sale or lease or exchange of the property or any part thereof, or of the remainder therein. In case of a sale on credit, the court shall take ample security. If such sale on credit be of real estate, a lien thereon shall be reserved. The title to any land acquired in any exchange herein provided for shall be held and owned by the same persons in the same way, to the same extent and subject to the same conditions that they owned the land given in such exchange.
§ 8.01-95. Procedure in such case.
The procedure in such suit and the investment of the proceeds of sale shall be in accordance with §§ 8.01-73, 8.01-75 and 8.01-76, so far as the same can be made applicable, and the court may, in its discretion, commute the life estate according to § 55-269.1. In the case of a lease, however, the rents may be made payable direct to the person or persons entitled thereto, for the time being.
§ 8.01-96. Decree for sale; how made; bond of commissioner.
In decreeing a sale under any provisions of law, the court may provide for the sale of property in any part of the Commonwealth, and may direct the sale to be for cash, or on such credit and terms as it may deem best, and it may appoint one or more special commissioners to make such sale. No special commissioner, appointed by a court, shall receive money under a decree, until he gives bond, with approved security, before such court or its clerk, in a penalty to be prescribed by the court, conditioned upon the faithful discharge of his duties as such commissioner and to account for and pay over as the court may direct all money that may come into his hands as such commissioner.
§ 8.01-97. Delinquent taxes to be ascertained.
In every suit brought in this Commonwealth for the sale of lands for the payment of debts or to subject lands to the payment of liens binding thereon, it shall be the duty of the court, or any commissioner to whom the cause is referred, to ascertain all delinquent taxes on such land together with interest and penalties if any
§ 8.01-98. Sales of land when purchase price insufficient to pay taxes, etc.
In any proceedings for the sale of real estate or to subject real estate to the payment of debts, it appears to the court that the real estate cannot be sold for enough to pay off the liens of taxes, levies, and assessments returned delinquent against it, and it further appears that the purchase price offered is adequate and reasonable, such sale shall be confirmed, and the court shall decree the payment and distribution of the proceeds of such sale pro rata to the taxes, levies, and assessments due the Commonwealth or any political subdivision thereof, after having first deducted the cost of such proceedings in court. Such decree shall be certified to the clerk of the appropriate court who has charge of the delinquent tax books, and such clerk shall cause the lien of such taxes, levies, and assessments to be marked satisfied upon the list of delinquent lands regardless of whether the same shall have been paid in full.
§ 8.01-99. Bond required of special commissioner for sale.
Except as hereinafter provided, no special commissioner shall advertise the property for sale or renting, or sell or rent the same, until he shall have given bond in a penalty to be prescribed by the court sufficient to cover at least the probable amount of the whole purchase money or such portion of the rent the court deems appropriate, and shall have obtained from such clerk a certificate that such bond has been given. The certificate or a copy thereof shall be appended to the advertisement; provided, however, that in any case of such sale or rental, the court may direct all the cash proceeds thereof to be deposited by the purchaser or lessee to the credit of such court in some bank to be designated by it, and may direct that all evidences of indebtedness arising from such transaction or rent be deposited for safekeeping with such bank or the clerk of such court and the court may in its discretion thereafter dispense with the bond.
The clerk shall make the certificate whenever the bond has been given and note the same in the proceedings in the cause. The certificate or a copy thereof shall be returned with the report of the sale or renting.
§ 8.01-100. Liability of clerk for false certificate or failure to give bond.
If any clerk make a certificate as to the bond, which is untrue, he and the sureties on his official bond shall be liable to any person injured thereby.
§ 8.01-101. Purchasers relieved of liability for purchase money paid to such commissioner.
When the certificate pursuant to the provisions in § 8.01-99 shall have been published with an advertisement of the sale or renting of property, or when such bond shall have been given prior to a sale or renting not publicly advertised, any person purchasing or renting such property in pursuance of such advertisement or in pursuance of the decree or order of sale or renting, shall be relieved of all liability for the purchase money or rent, or any part thereof, which he may pay to any special commissioner, as to whom the proper certificate shall have been appended to such advertisement, or who shall have given the bond aforesaid.
§ 8.01-102. Purchasers not required to see to application of purchase money.
No purchaser or renter at a duly authorized sale or renting made by a receiver, personal representative, trustee, or other fiduciary shall be required to see to the application of the purchase money.
§ 8.01-103. Special commissioner or other person appointed to do so to receive purchase money, etc.; liability of clerk for failure to give notice of appointment.
The special commissioner, who makes the sale or renting, shall receive and collect all the purchase money or rent, unless some other person be appointed to collect the same and in such case the court shall require of such person bond with surety in such penalty as to it may seem fit. When such appointment is made, it shall be the duty of the clerk to give notice thereof, in writing, to the purchaser or lessee, to be served as other notices are required by law to be served; but no payment shall be made to the person so appointed, until he shall have given the bond required by the decree or order; provided, however, that if, before the purchaser or lessee has received notice of such appointment, he shall have made any payment on account of the purchase money or rent to the special commissioner, or any person appointed for the purpose, who made the sale or renting, such special commissioner, or other person, who made the sale or renting, and the sureties on his bond, shall be responsible for the money so paid, and the purchaser or lessee, who made the payment, shall not be responsible therefor.
If any clerk fail to give the notice hereinbefore required to be given by him, he and the sureties on his official bond shall be liable to any person injured by such failure
Repealed by Acts 1978, c. 718
§ 8.01-105. Rule against special commissioner, purchaser, etc., for judgment for amounts due.
Any court of this Commonwealth, may, at the instance of any party in interest, award a rule against any special commissioner or receiver appointed by or acting under the authority of such court, and against the surety of such commissioner or receiver, or against a purchaser at a judicial sale under a decree of such court, and against the surety or sureties of such purchaser, returnable to such date as the court may fix, to show cause why judgment shall not be entered against them for any amount which the court may ascertain to be due from such commissioner, receiver, or purchaser. A rule issued under this section shall be executed at least fifteen days before the return day thereof.
§ 8.01-106. How cause heard upon rule and judgment rendered.
Upon the return of a rule executed under § 8.01-105 upon any of the parties thereto, the court may if neither party demand a jury, proceed to hear and determine all questions raised by such rule, and shall enter a judgment against such special commissioner, receiver, or purchaser, as the case may be, and his surety or sureties, for the amount appearing to be due by such commissioner, receiver or purchaser, or may enter judgment against such of them as have been summoned to answer such rule. If it appears in such proceeding that such commissioner, receiver, purchaser, or any of them, or their sureties is dead, or under a disability, then such rule shall be awarded against the personal representative of those dead, and the fiduciary of those who are under a disability, and judgment may be rendered jointly and severally against such personal representative, fiduciary and those laboring under no disability in the same proceeding
§ 8.01-107. Trial by jury of issues made upon rule.
If, upon the return of such rule, any party thereto demand a trial by jury, the court shall order a trial by jury to ascertain what liability, if any, exists against any such special commissioner, receiver, or purchaser, and their sureties; and the court shall enter judgment on the verdict awarded by the jury. New trials may be granted as in other cases; and notwithstanding such rules be awarded and judgment be rendered against part only of the persons liable thereto, the court may award new rules and proceed to judgment against all the parties who are liable thereto. The provisions of this section, and §§ 8.01-105 and 8.01-106, shall apply to any officers and their sureties, acting under the decree of the court
§ 8.01-108. When sureties of commissioner, purchaser, etc., proceeded against by rule.
Whenever a special commissioner, a receiver, purchaser at a judicial sale, or his personal representative, or any of them, can be proceeded against by rule for the recovery of money under §§ 8.01-105, 8.01-106 and 8.01-107, the surety of such commissioner, receiver, or purchaser, and the personal representatives of such sureties, may also be proceeded against under such sections
§ 8.01-109. Commission for selling, collecting, etc.; each piece of property to constitute separate sale.
For the services of commissioners or officers under any decree for a sale, including the collection and paying over of the proceeds, there may be allowed a commission of five percent on amounts up to and including $100,000, and two percent on all amounts above $100,000. If the sale is made by one commissioner or officer and the proceeds collected by another, the court under whose decree they acted shall apportion the commission between them as may be just.
For the purposes of this section, each piece of property so sold shall constitute a separate sale, even though more than one piece of property is sold under the same decree
§ 8.01-110. Appointment of special commissioner to execute deed, etc.; effect of deed.
A court in a suit wherein it is proper to decree the execution of any deed or writing may appoint a special commissioner to execute the same on behalf of any party in interest and such instrument shall be as valid as if executed by the party on whose behalf it is so executed.
§ 8.01-111. What such deed to show.
Every deed executed by any such commissioner pursuant to the provisions of § 8.01-110 shall specifically set out as nearly as practicable the name of the person on whose behalf the same is executed; provided, that when such deed conveys the right, title or interest of the heirs of a person who is dead it shall be sufficient for such deed to set out that the same is executed on behalf of the heirs of such decedent. But a failure to comply with the provisions of this section shall not affect or invalidate any such deed; and all deeds heretofore executed by any such commissioner in which such persons or heirs are not specifically set out are hereby validated.
§ 8.01-112. Reinstatement of cause to appoint special commissioner to make deed.
Any ended cause may be reinstated for the purpose of entering a decree directing a deed to be made to any party clearly shown by the record to be entitled thereto, or for the purpose of substituting a new commissioner to make a deed in the place of one previously appointed for that purpose, but who has died or become incapacitated to act before making such deed.
§ 8.01-113. When title of purchaser at judicial sale not to be disturbed.
If a sale of property is made under a decree of a court, and such sale is confirmed, the title of the purchaser at such sale shall not be disturbed unless within twelve months from such confirmation the sale is set aside by the trial court or an appeal is taken to the Court of Appeals or allowed by the Supreme Court, and a decree is therein afterwards entered requiring such sale to be set aside. This limitation shall not affect any right of restitution of the proceeds of sale
§ 8.01-114. When property to be taken by officer; summary of evidence, affidavits and report to be filed.
A. A proceeding in detinue to recover personal property unlawfully withheld from the plaintiff may be brought on a warrant or motion for judgment if pretrial seizure is not sought at the time of filing.
A petition in detinue for pretrial seizure pursuant to this article may be filed either to commence the detinue proceeding or may be filed during the pendency of a detinue proceeding which commenced on a warrant or motion for judgment. If a petition is filed, it shall:
1. Describe the kind, quantity and estimated fair market value of the specific personal property as to which plaintiff seeks possession;
2. Describe the basis of the plaintiff’s claim of entitlement to recover the property, with such certainty as will give the adverse party reasonable notice of the true nature of the claim and the particulars thereof and, if based on a contract to secure the payment of money, the amount due on such contract; and
3. Allege one or more of the grounds mentioned in § 8.01-534 and set forth specific facts in support of such allegation. Further, if a petition is filed, a judge, or a magistrate appointed pursuant to Article 3 (§ 19.2-33 et seq.) of Chapter 3 of Title 19.2, may issue an order or other process directed to the sheriff or other proper officer, as the case may be, commanding him to seize the property for the recovery of which such action or warrant is brought, or a specified portion thereof, and deliver same to the plaintiff pendente lite under the circumstances hereinafter set forth.
B. The judge or the magistrate may issue such an order or other process in accordance with the prayer of the petition after an ex parte review of the petition only upon a determination that: (i) the petition conforms with subsection A and (ii) there is reasonable cause to believe that the grounds for detinue seizure described in the petition exist. The plaintiff praying for an order shall, at the time that he files his petition, pay the proper costs, fees and taxes, and in the event of his failure to do so, the order shall not be issued.
C. The judge or magistrate, as the case may be, may receive evidence only in the form of a sworn petition which shall be filed with the papers in the cause.
D. The order commanding the seizure of property shall be issued and served together with the form for requesting a hearing on a claim of exemption from seizure as provided in § 8.01-546.1. The order shall be issued and returned as provided in § 8.01-541 and may be issued or executed on any day, including a Saturday, Sunday or other legal holiday. Service shall be in accordance with the methods described in § 8.01-487.1. The provisions of § 8.01-546.2 shall govern claims for exemption.
§ 8.01-115. Bond required as prerequisite.
No such order or process, however, shall be issued until a bond, conforming with the requirements of § 8.01-537.1, is posted with the judge or magistrate, in a penalty at least double the estimated fair market value of the property claimed, payable to the defendant, with the additional condition to redeliver the property so seized to the defendant, or to the person from whose possession it was taken, if the right to the possession shall be adjudged against the plaintiff.
§ 8.01-116. Return of property to defendant or other claimant.
A. Subject to the provisions of subsection B below, the defendant in any such proceeding, or any other person claiming title to the property so seized and taken possession of by the officer, may have such property returned to him at any time after such seizure upon executing a bond, with sufficient surety, to be approved by the officer, payable to the plaintiff, in a penalty at least double the estimated value of the property. The bond shall contain a condition to (i) pay all costs and damages which may be awarded against the defendant in the proceeding and all damages which may accrue to any person by reason of the return of the property to the defendant or the claimant and (ii) have the property forthcoming to answer any judgment or order of the court or judge respecting the same. The bond shall be delivered to the officer and returned by him to the office of the clerk. The officer, on receiving the bond, shall forthwith return the property taken by him to the defendant or any other person claiming title thereto or from whose possession it was taken.
B. In any such proceeding, upon application of the defendant after reasonable notice to the plaintiff or his attorney, the judge of the court in which the proceeding is pending may order the property returned to the defendant upon such lesser security and upon such terms as in the nature of the case may be just and reasonable.
C. If no bond or security is delivered to the officer after his seizing and taking possession of such property, the property, if in the hands of the officer, shall be kept by him. However, if the property is perishable or expensive to keep, it may be sold by order of the court in the same manner as if it were a sale under execution.
§ 8.01-117. Exceptions to sufficiency of bonds.
Either party may file exceptions to the sufficiency of the bond of the other or of the claimant of the property, if he has given bond, or such claimant may file exceptions to the sufficiency of the bond of either party. The court before whom the proceeding is pending, may, on the motion of either party or of the claimant, after reasonable notice to the others, pass upon such exceptions and make such order thereupon as may be just and reasonable
Repealed by Acts 1986, c. 341.
§ 8.01-119. Hearing to review issuance of order or process under § 8.01-114 or to consider request for such order or process.
A. Within thirty days after the issuance of any ex parte order or process pursuant to § 8.01-114, or promptly upon application of either party, and in either event after reasonable notice, the court in which such proceeding is pending shall conduct a hearing to review the decision to issue the order or other process described in § 8.01-114, or to consider the request of the plaintiff for issuance of such order or other process, whether or not the plaintiff has attempted to previously obtain an order pursuant to § 8.01-114. The hearing may be combined with a prompt hearing held pursuant to § 8.01-546.2 on an exemption claimed or a trial on the merits or both. If combined with a hearing on an exemption claim, the hearing shall be conducted within ten business days of the filing of the request for a hearing. If the plaintiff gives reasonable notice of his intention to apply for such an order or process before the court, such hearing may be on the return day of the warrant. Evidence may be presented in the same manner as in subsection B of § 8.01-114.
B. At the conclusion of the hearing, if the evidence establishes the facts set forth in subdivision 1 of subsection A of § 8.01-114, and the court is satisfied from the evidence that (i) one or more of the grounds set forth in § 8.01-534 exist, (ii) there is good reason to believe that the defendant is insolvent, so that any recovery against him for the alternate value of the property and for damages and costs will probably prove unavailing, or (iii) the plaintiff may suffer other irreparable harm if his request is denied, and if it further appears to the court that there is a substantial likelihood that the plaintiff’s allegations will be sustained at the trial, then the court shall issue the order or other process requested by the plaintiff, or let stand an order issued in the cause pursuant to § 8.01-114.
If the decision of the court is in favor of the defendant, the former order or process issued in the cause shall be abated and the property returned to the possession of the person from whom it was taken to abide the final trial of the action or warrant. Proof of insolvency as grounds for possession of goods by the plaintiff shall not be introduced for purposes of affirming a prior ex parte order, but only upon an initial application for possession after reasonable notice.
C. Issuance of any order or process pursuant to this section shall be subject to the provisions of §§ 8.01-115 and 8.01-116.
(Code 1950, § 8-591; 1973, c. 408; 1977, c. 617; 1986, c. 341; 1993, c. 841.)
§ 8.01-120. No verdict as to some items; omission of price or value.
If in such detinue action, on an issue concerning several things, in one or more counts, no verdict be found for part of them, it shall not be error, but the plaintiff shall be barred of his title to the things omitted; and if the verdict omit the price or value, the court may at any time have a jury impaneled to ascertain the same.
§ 8.01-121. Final judgment.
When final judgment is rendered on the trial of such detinue proceeding, the court shall dispose of the property or proceeds according to the rights of those entitled. When, in any such proceeding, the plaintiff prevails under a contract which, regardless of its form or express terms, was in fact made to secure the payment of money to the plaintiff or his assignor, judgment shall be for the recovery of the amount due the plaintiff thereunder or for the specific property, and costs. The defendant shall have the election of paying the amount of such judgment or surrendering the specific property. The court may grant the defendant a reasonable time not exceeding thirty days, within which to make the election upon such security being given as the court may deem sufficient. When the property involves an animal as defined in § 3.2-6500, the court may order the return of the animal to the prevailing plaintiff without regard to any alternative method of recovery.
If the defendant elects to surrender the property as aforesaid, upon delivery of the property to the plaintiff or repossession thereof by him, the plaintiff may proceed to sell the property in accordance with the applicable provisions of the Uniform Commercial Code (Part 6 (§§ 8.9A-601 et seq.) of Title 8.9A) with all the rights and responsibilities therein provided.
(Code 1950, § 8-593; 1964, c. 219; 1977, c. 617; 1987, c. 1; 1993, c. 841.)
§ 8.01-122. Charges for keeping property.
The legal charges, if any, for keeping any such property, while in the possession of the officer, shall be paid by the plaintiff and certified by the officer to the court who, in case such order or process be not abated and final judgment be rendered for the plaintiff, shall tax the same along with the other costs of the suit.
§ 8.01-123. Recovery of damages sustained for property withheld during appeal.
When a judgment for specific personal property is affirmed by an appellate court, or an injunction to such judgment is dissolved, the person who is entitled to execution of such judgment, or who would be entitled if execution had not been had, may, on motion to the court from which such execution has issued, or might issue, after fifteen days’ notice to the defendant or his personal representative, have a jury impaneled to ascertain the damages sustained by reason of the detention of such property, subsequent to such judgment, or if it was on a verdict, subsequent to such verdict; and judgment shall be rendered for the damages, if any, so ascertained.
(Code 1950, § 8-595; 1977, c. 617.)
§ 8.01-124. Motion for judgment in circuit court for unlawful entry or detainer.
If any forcible or unlawful entry be made upon lands, or if, when the entry is lawful and peaceable, the tenant shall detain the possession of land after the right has expired, without the consent of him who is entitled to the possession, the party so turned out of possession, no matter what right of title he had thereto, or the party against whom such possession is unlawfully detained may file a motion for judgment in the circuit court alleging that the defendant is in possession and unlawfully withholds from the plaintiff the premises in question.
§ 8.01-125. When summons returnable to circuit court; jury.
When the action is commenced in the circuit court, the summons is returnable thereto and, upon application of either party trial by jury shall be had.
§ 8.01-126. Summons for unlawful detainer issued by magistrate or clerk or judge of a general district court.
In any case when possession of any house, land or tenement is unlawfully detained by the person in possession thereof, the landlord, his agent, attorney, or other person, entitled to the possession may present to a magistrate or a clerk or judge of a general district court a statement under oath of the facts which authorize the removal of the tenant or other person in possession, describing such premises; and thereupon such magistrate, clerk or judge shall issue his summons against the person or persons named in such affidavit. The process issued upon any such summons issued by a magistrate, clerk or judge may be served as provided in § 8.01-293 and 8.01-296 or 8.01-299. When issued by a magistrate it may be returned to and the case heard and determined by the judge of a general district court. If the summons for unlawful detainer is filed to terminate a tenancy pursuant to the Virginia Residential Landlord Tenant Act (§ 55-248.2 et seq.), the initial hearing on such summons shall occur as soon as practicable, but not more than twenty-one days from the date of filing. If the case cannot be heard within twenty-one days from the date of filing, the initial hearing shall be held as soon as practicable. If the plaintiff requests that the initial hearing be set on a date later than twenty-one days from the date of filing, the initial hearing shall be set on a date the plaintiff is available that is also available for the court. Such summons shall be served at least ten days before the return day thereof.
§§ 8.01-127. , 8.01-127.1.
Repealed by Acts 2007, c. 869, cl. 2.
§ 8.01-128. Verdict and judgment; damages.
A. If it appears that the plaintiff was forcibly or unlawfully turned out of possession, or that it was unlawfully detained from him, the verdict or judgment shall be for the plaintiff for the premises, or such part thereof as may be found to have been so held or detained. The verdict or judgment shall also be for such damages as the plaintiff may prove to have been sustained by him by reason of such forcible or unlawful entry, or unlawful detention, of such premises, and such rent as he may prove to have been owing to him.
B. The plaintiff may, alternatively, receive a final, appealable judgment for possession of the property unlawfully entered or unlawfully detained and be issued a writ of possession, and continue the case for up to 90 days to establish final rent and damages. If the plaintiff elects to proceed under this section, the judge shall hear evidence as to the issue of possession on the initial court date and shall hear evidence on the final rent and damages at the hearing set on the continuance date, unless the plaintiff requests otherwise or the judge rules otherwise. Nothing in this section shall preclude a defendant who appears in court at the initial court date from contesting an unlawful detainer action as otherwise provided by law.
If under this section an appeal is taken as to possession, the entire case shall be considered appealed. The plaintiff shall, in the instance of a continuance taken under this section, mail to the defendant at the defendant’s last known address at least 15 days prior to the continuance date a notice advising of (i) the continuance date; (ii) the amounts of final rent and damages; and (iii) that the plaintiff is seeking judgment for additional sums. A copy of such notice shall be filed with the court.
C. No verdict or judgment rendered under this section shall bar any separate concurrent or future action for any such damages or rent as may not be so claimed.
§ 8.01-129. Appeal from judgment of general district court.
An appeal shall lie from the judgment of a general district court, in any proceeding under this article, to the circuit court in the same manner and with like effect and upon like security as appeals taken under the provisions of § 16.1-106 et seq. except as specifically provided in this section. The appeal shall be taken within 10 days and the security approved by the court from which the appeal is taken. Notwithstanding the provisions of § 16.1-106 et seq. the bond shall be posted and the writ tax paid within 10 days of the date of the judgment. Unless otherwise specifically provided in the court’s order, no writ of execution shall issue on a judgment for possession until the expiration of this 10-day period, except in cases of judgment of default (i) wherein the case arises out of a trustee’s deed following foreclosure, (ii) for the nonpayment of rent where the writ of execution shall issue immediately upon entry of judgment for possession, if requested by the plaintiff, or (iii) for immediate nonremediable terminations where the writ of execution shall issue immediately upon entry of judgment for possession, if requested by the plaintiff. When the appeal is taken by the defendant, he shall be required to give security also for all rent which has accrued and may accrue upon the premises, but for not more than one year’s rent, and also for all damages that have accrued or may accrue from the unlawful use and occupation of the premises for a period not exceeding three months. Trial by jury shall be had upon application of any party.
§ 8.01-130. Judgment not to bar action of trespass or ejectment.
No judgment in an action brought under the provisions of this article shall bar any action of trespass or ejectment between the same parties, nor shall any such judgment or verdict be conclusive, in any such future action, of the facts therein found
§ 8.01-131. Action of ejectment retained; when and by whom brought.
A. The action of ejectment is retained, subject to the provisions hereinafter contained, and to the applicable Rules of Court.
B. Such action may be brought in the same cases in which a writ of right might have been brought prior to the first day of July, 1850, and by any person claiming real estate in fee or for life or for years, either as heir, devisee or purchaser, or otherwise.
§ 8.01-132. What interest and right plaintiff must have.
No person shall bring such ejectment action unless he has, at the time of commencing it, a subsisting interest in the premises claimed and a right to recover the same, or to recover the possession thereof, or some share, interest or portion thereof.
§ 8.01-133. Who shall be defendants; when and how landlord may defend.
The person actually occupying the premises and any person claiming title thereto or claiming any interest therein adversely to the plaintiff may also, at the discretion of the plaintiff, be named defendants in the action. If there be no person actually occupying the premises adversely to the plaintiff, then the action must be against some person exercising ownership thereon or claiming title thereto or some interest therein at the commencement of suit. If a lessee be made defendant at the suit of a party claiming against the title of his landlord such landlord may appear and be made a defendant with or in place of his lessee.
§ 8.01-134. How action commenced and prosecuted.
The action shall be commenced and prosecuted as other actions at law. The name of the real claimant shall be inserted as plaintiff, and all the provisions of law concerning a lessor of a plaintiff shall apply to such plaintiff
§ 8.01-135. What is to be stated in motion for judgment.
It shall be sufficient for the plaintiff to aver in his motion for judgment that on some day specified therein, which shall be after his title accrued, he was possessed of the premises claimed, and, being so possessed thereof, the defendant afterwards, on some day likewise specified, entered into such premises or exercised acts of ownership thereon or claimed title thereto or some interest therein, to the damage of the plaintiff in such sum as he shall state in his motion for judgment.
§ 8.01-136. How premises described.
The premises claimed shall be described in the motion for judgment with convenient certainty, so that, from such description, with the aid of information derived from the plaintiff, possession thereof may be delivered.
§ 8.01-137. Plaintiff to state how he claims.
The plaintiff shall also state whether he claims in fee or for his life, or the life of another, or for years, specifying such lives or the duration of such term, and when he claims an undivided share or interest he shall state the same.
§ 8.01-138. There may be several counts and several plaintiffs.
The motion for judgment may contain several counts, and several parties may be named as plaintiffs jointly in one count and separately in others.
§ 8.01-139. What proof by plaintiff is sufficient.
The consent rule, formerly used, remains abolished. The plaintiff need not prove an actual entry on, or possession of, the premises demanded, or receipt of any profits thereof, or any lease, entry, or ouster, except as hereinafter provided. But it shall be sufficient for him to show a right to the possession of the premises at the time of the commencement of the suit.
§ 8.01-140. Effect of reservation in deed; burden of proof.
In any action, suit or other judicial proceeding involving the title to land embraced in the exterior boundaries of any patent, deed or other writing, which reserves one or more parcels of land from the operation of such patent, deed or other writing, if there be no claim made by a party to the proceedings that the land in controversy, or any part thereof, lies within such reservation, such patent, deed or other writing shall be construed, and shall have the same effect, as if it contained no such reservation; and if any party to such proceeding claims that the land in controversy, or any part thereof, lies within such reservation, the burden shall be upon him to prove the fact, and all land not shown by a preponderance of the evidence to lie within such reservation shall be deemed to lie without the same.
This section shall apply in cases involving the right to the proceeds of any such land when condemned or sold, as well as in cases where the title to land is directly involved, and shall apply in any case in which the title to any part of the land, or its proceeds, but for this section, would or might be in this Commonwealth.
§ 8.01-141. When action by cotenants, etc., against cotenants, what plaintiff to prove.
If the action be by one or more tenants in common, joint tenants or coparceners against their cotenants, the plaintiff shall be bound to prove actual ouster or some other act amounting to total denial of the plaintiff’s right as cotenant.
§ 8.01-142. Verdict when action against several defendants.
If the action be against several defendants, and a joint possession of all be proved, and the plaintiff be entitled to a verdict, it shall be against all, whether they pleaded separately or jointly.
§ 8.01-143. When there may be several judgments against defendants.
If the action be against several defendants, and it appear on the trial that any of them occupy distinct parcels in severalty or jointly, and that other defendants possess other parcels in severalty or jointly, the plaintiff may recover several judgments against them, for the parcels so held by one or more of the defendants, separately from others.
§ 8.01-144. Recovery of part of premises claimed.
The plaintiff may recover any specific or any undivided part or share of the premises, though it be less than he claimed in the motion for judgment.
§ 8.01-145. When possession of part not possession of whole.
In a controversy affecting real estate, possession of part shall not be construed as possession of the whole when an actual adverse possession can be proved.
§ 8.01-146. When vendee, etc., entitled to conveyance of legal title, vendor cannot recover.
A vendor, or any claiming under him, shall not, at law any more than in equity, recover against a vendee, or those claiming under him, lands sold by such vendor to such vendee, when there is a writing, stating the purchase and the terms thereof, signed by the vendor or his agent and there has been such payment or performance of what was contracted to be paid or performed on the part of the vendee, as would in equity entitle him, or those claiming under him, to a conveyance of the legal title of such land from the vendor, or those claiming under him, without condition.
§ 8.01-147. When mortgagee or trustee not to recover.
The payment of the whole sum, or the performance of the whole duty, or the accomplishment of the whole purpose, which any mortgage or deed of trust may have been made to secure or effect, shall prevent the grantee, or his heirs, from recovering at law, by virtue of such mortgage or deed of trust, property thereby conveyed, whenever the defendant would in equity be entitled to a decree, revesting the legal title in him without condition.
§ 8.01-148. Right of defendant to resort to equity not affected.
Whether the defendant shall or shall not make or attempt a defense under §§ 8.01-146 and 8.01-147, he shall not be precluded from resorting to equity for any relief to which he would have been entitled if such sections had not been enacted.
§ 8.01-149. Verdict when jury finds for plaintiffs or any of them.
If the jury be of opinion for the plaintiffs, or any of them, the verdict shall be for the plaintiffs, or such of them as appear to have right to the possession of the premises, or any part thereof, and against such of the defendants as were in possession thereof or claimed title thereto at the commencement of the action.
§ 8.01-150. Verdict when any plaintiff has no right.
When any plaintiff appears to have no such right, the verdict as to such plaintiff shall be for the defendants.
§ 8.01-151. How verdict to specify premises recovered.
When the right of the plaintiff is proved to all the premises claimed, the verdict shall be for the premises generally as specified in the motion for judgment, but if it be proved to only a part or share of the premises, the verdict shall specify such part particularly as the same is proved, and with the same certainty of description as is required in the motion for judgment.
§ 8.01-152. How verdict to specify undivided interest or share.
If the verdict be for an undivided share or interest in the premises claimed, it shall specify the same, and if for an undivided share or interest of a part of the premises, it shall specify such share or interest, and describe such part as before required.
§ 8.01-153. Verdict to specify estate of plaintiff.
The verdict shall also specify the estate found in the plaintiff, whether it be in fee or for life, stating for whose life, or whether it be a term of years, and specifying the duration of such term.
§ 8.01-154. When right of plaintiff expires before trial, what judgment entered.
If the right or title of a plaintiff in ejectment expire after the commencement of the suit, but before trial, the verdict shall be according to the fact, and judgment shall be entered for his damages sustained from the withholding of the premises by the defendant, and as to the premises claimed, the judgment shall be for the defendant.
§ 8.01-155. How judgment for plaintiff entered.
The judgment for the plaintiff shall be, that he recover the possession of the premises, according to the verdict of the jury, if there be a verdict, or if the judgment be by default, or on demurrer, according to the description thereof in the motion for judgment.
§ 8.01-156. Authority of sheriffs, etc., to store and sell personal property removed from premises; recovery of possession by owner; disposition or sale.
In any county or city, when personal property is removed from premises pursuant to an action of unlawful detainer or ejectment, or pursuant to any other action in which personal property is removed from premises in order to restore such premises to the person entitled thereto, the sheriff shall oversee the removal of such personal property and it shall be placed in a storage area designated by the governing body of the county or city if such an area has been so designated, or, in the case of a manufactured home, at the request of the owner of the real property, to be placed into a storage area designated by the owner of the real property which may be the manufactured home lot or other location within the manufactured home park, unless the owner of such personal property then and there removes it from the public way. The sheriff and the owner of the real property shall not have any liability for the loss of any such manufactured home remaining on the manufactured home lot, nor shall they have any liability for the loss of any removed personal property.
The owner, before obtaining possession of such personal property so placed in a storage area shall pay to the parties entitled thereto the reasonable and necessary costs incidental to such removal and storage. Should such owner fail or refuse to pay such costs within 30 days from the date of placing the property in storage, the sheriff shall, after due notice to the owner and holders of liens of record, dispose of the property by publicly advertised public sale. The proceeds from such sale shall be used to pay all costs of removal, storage, and sale, all fees and liens, and the balance of such funds shall be paid to the person entitled thereto. Should the cost of removal and storage exceed the proceeds realized from such sale the county or city shall reimburse the sheriff for such excess, except that any such excess costs related to the disposal of a manufactured home shall be paid by the owner of the real property from which the manufactured home was removed. The sheriff, in his discretion, may refuse to remove or dispose of such manufactured home until the owner of the real property pays to the sheriff the estimated cost of such removal and disposition. Subsequent to disposition, the sheriff shall reimburse the owner to the extent the actual cost is less than the estimated cost, or shall request additional payment to the extent the actual cost exceeds the estimated cost.
Repealed by Acts 1990, c. 831, effective January 1, 1991.
§ 8.01-158. How claim of plaintiff for profits and damages assessed.
If the plaintiff file with his motion for judgment a statement of the profits and other damages which he means to demand, and the jury find in his favor, they shall, at the same time, unless the court otherwise order, assess the damages for mesne profits of the land for any period not exceeding five years previously to the commencement of the suit until the verdict, and also the damages for any destruction or waste of the buildings or other property during the same time for which the defendant is chargeable.
§ 8.01-159. When court to assess damages.
If there be no issue of fact tried in the cause, and judgment is to be rendered for the plaintiff on demurrer, or otherwise, such damages shall be assessed by the court, unless either party shall move to have them assessed by a jury, or the court shall think proper to have them so assessed, in which case a jury shall be impaneled to assess them. If the defendant is in default the court shall proceed to render judgment and assess damages as provided in Rule of Court 3:19.
§ 8.01-160. Defendant to give notice of claim for improvements.
If the defendant intends to claim allowance for improvements made upon the premises by himself or those under whom he claims, he shall file with his pleading a statement of his claim therefor, in case judgment be rendered for the plaintiff.
§ 8.01-161. How allowed.
In such case, the damages of the plaintiff, and the allowance to the defendant for improvements, shall be estimated, and the balance ascertained, and judgment therefor rendered, as prescribed in Article 15 (§ 8.01-166 et seq.) of this chapter.
§ 8.01-162. Postponement of assessment and allowance.
On the motion of either party, the court may order the assessment of such damages and allowance to be postponed until after the verdict on the title is recorded.
§ 8.01-163. Judgment to be conclusive.
Any such judgment in an action of ejectment shall be conclusive as to the title or right of possession established in such action, upon the party against whom it is rendered, and against all persons claiming from, through, or under such party, by title accruing after the commencement of such action, except as hereinafter mentioned.
§ 8.01-164. Recovery of mesne profits, etc., not affected.
Nothing in this chapter shall prevent the plaintiff from recovering mesne profits, or damages done to the premises, from any person other than the defendant, who may be liable to such action.
§ 8.01-165. Writ of right, etc., abolished.
No writ of right, writ of entry, or writ of formedon, shall be hereafter brought.
§ 8.01-166. How defendant may apply therefor, and have judgment suspended.
Any defendant against whom a decree or judgment shall be rendered for land, when no assessment of damages has been made under Article 14 (§ 8.01-131 et seq.) of this chapter, may, at any time before the execution of the decree or judgment, present a pleading to the court rendering such decree or judgment, stating that he, or those under whom he claims while holding the premises under a title believed by him or them to have been good, have made permanent improvements thereon, and moving that he should have an allowance for the same which are over and above the value of the use and occupation of such land; and thereupon the court may, if satisfied of the probable truth of the allegation, suspend the execution of the judgment or decree, and impanel a jury to assess the damages of the plaintiff, and the allowances to the defendant for such improvements.
§ 8.01-167. How damages of plaintiff assessed.
The jury, in assessing such damages, either under this article or under Article 14 (§ 8.01-131 et seq.) of this chapter, shall determine the annual value of the premises during the time the defendant was in possession thereof, exclusive of the use by the tenant of the improvements thereon made by himself or those under whom he claims, and also the damages for waste or other injury to the premises committed by the defendant.
§ 8.01-168. For what time.
The defendant shall not be liable for such annual value for any longer time than five years before the suit, or for damages for any such waste or other injury done before such five years, except when he claims for improvements as aforesaid.
§ 8.01-169. How value of improvements determined in favor of defendant.
If the jury shall be satisfied that the defendant, or those under whom he claims, made on the premises, at a time when there was reason to believe the title good under which he or they were holding the same, permanent and valuable improvements, they shall determine the value of such improvements as were so made before receipt by the person making the same of notice in writing of the title under which the plaintiff claims, not exceeding the amount actually expended in making them, and not exceeding the amount to which the value of the premises is actually increased thereby at the time of such determination.
§ 8.01-170. If allowance for improvements exceed damages, what to be done.
If the sum determined for the improvements exceed the damages determined by the jury against the defendant as aforesaid, they shall then determine against him, for any time before such five years, the rents and profits accrued against, or damage for waste or other injury done by him, or those under whom he claims, so far as may be necessary to balance his claim for improvements, but in such case he shall not be liable for the excess, if any, of such rents and profits, or damages, beyond the value of the improvements.
§ 8.01-171. Verdict for balance, after offsetting damages against improvements.
After offsetting the damages assessed for the plaintiff and the allowances to the defendant for improvements, if any, the jury shall find a verdict for the balance for the plaintiff or defendant, as the case may be, and judgment or decree shall be entered therefor according to the verdict.
§ 8.01-172. Balance for defendant a lien on the land.
Any such balance due to the defendant shall constitute a lien upon the land recovered by the plaintiff, until the same shall be paid.
§ 8.01-173. How tenant for life, paying for improvements, reimbursed.
If the plaintiff claim only an estate for life in the land recovered, and pay any sum allowed to the defendant for improvements, he, or his personal representative at the determination of his estate, may recover from the remainderman or reversioner, the value of such improvements as they then exist, not exceeding the amount so paid by him, and shall have a lien therefor on the premises, in like manner as if they had been mortgaged for the payment thereof, and may keep possession of such premises until the same be paid.
§ 8.01-174. Exception as to mortgagees and trustees.
Nothing in this article, nor anything concerning rents, profits, and improvements, in Article 14 (§ 8.01-131 et seq.) of this chapter, shall extend or apply to any suit brought by a mortgagee, or trustee in a deed of trust to secure creditors, his heirs, or assigns, against a mortgagor or grantor in such deed of trust, his heirs, or assigns, for the recovery of the mortgaged premises or of the land conveyed by such deed of trust.
§ 8.01-175. When plaintiff may require his estate only to be valued; how determined; how he may elect to relinquish his title to defendant.
A. When the defendant shall claim allowance for improvements, the plaintiff may, by an entry on the record, require that the value of his estate in the premises, without the improvements, shall also be ascertained.
B. The value of the premises in such case shall be determined as it would have been at the time of the inquiry, if no such improvements had been made, and shall be ascertained in the manner hereinbefore provided for determining the value of improvements.
C. The plaintiff in such case, if judgment is rendered for him, may at any time, enter on the record his election to relinquish his estate in the premises to the defendant at the value so ascertained under this section, and the defendant shall thenceforth hold all the estate that the plaintiff had therein at the commencement of the suit, provided he pay therefor such value, with interest, in the manner in which the court may direct.
§ 8.01-176. How payment of such value to be made by defendant; when land sold therefor.
The payments shall be made to the plaintiff, or into court for his use, and the land shall be bound therefor, and if the defendant fail to make such payments within or at the times limited therefor respectively, the court may order the land to be sold and the proceeds applied to the payment of such value and interest, and the surplus, if any, to be paid to the defendant; but if the net proceeds be insufficient to satisfy such value and interest, the defendant shall not be bound for the deficiency.
§ 8.01-177. When such value to be deemed real estate.
If the party by or for whom the land is claimed in the suit be a person under a disability, such value shall be deemed to be real estate, and be disposed of as the court may consider proper for the benefit of the persons interested therein.
§ 8.01-178. When and how defendant, if evicted, may recover from plaintiff amount paid.
If the defendant or his heirs or assigns shall, after the premises are so relinquished to him, be evicted thereof by force of any better title than that of the original plaintiff, the person so evicted may recover from such plaintiff or his representative the amount so paid for the premises, as so much money had and received by such plaintiff in his lifetime for the use of such person, with lawful interest thereon from the time of such payment.
§ 8.01-179. Motion for judgment to establish boundary lines.
Any person having a subsisting interest in real estate and a right to its possession, or to the possession of some share, interest or portion thereof, may file a motion for judgment to ascertain and designate the true boundary line or lines to such real estate as to one or more of the coterminous landowners. Plaintiff in stating his interest shall conform to the requirements of § 8.01-137, and shall describe with reasonable certainty such real estate and the boundary line or lines thereof which he seeks to establish.
§ 8.01-180. Parties defendant; pleadings.
The plaintiff shall make defendants to such motion for judgment all persons having a present interest in the boundary line or lines sought to be ascertained and designated.
§ 8.01-181. Surveys.
The court may appoint a surveyor and direct such surveys to be made as it deems necessary, and the costs thereof shall be assessed as the court may direct.
§ 8.01-182. Claims to rents, etc., not considered.
In a proceeding under this article, no claim of the plaintiff for rents, profits or damages shall be considered.
§ 8.01-183. Recordation and effect of judgment.
The judgment of the court shall be recorded in the current deed book of the court. The judgment shall forever settle, determine, and designate the true boundary line or lines in question, between the parties, their heirs, devisees, and assigns. The judgment may be enforced in the same manner as a judgment in an action of ejectment.
§ 8.01-184. Power to issue declaratory judgments.
In cases of actual controversy, circuit courts within the scope of their respective jurisdictions shall have power to make binding adjudications of right, whether or not consequential relief is, or at the time could be, claimed and no action or proceeding shall be open to objection on the ground that a judgment order or decree merely declaratory of right is prayed for. Controversies involving the interpretation of deeds, wills, and other instruments of writing, statutes, municipal ordinances and other governmental regulations, may be so determined, and this enumeration does not exclude other instances of actual antagonistic assertion and denial of right.
§ 8.01-184.1. Declaratory judgment to adjudicate constitutional nexus.
A. Circuit courts shall have original jurisdiction over civil actions seeking declaratory judgment where:
1. The party seeking declaratory relief is a business that (i) is organized under the laws of the Commonwealth or a sole proprietorship owned by a Commonwealth domiciliary, or (ii) has qualified to do business in the Commonwealth; and
2. The responding party is a government official of another state, or political subdivision of another state, who asserts that the business in question is or was in the past obliged to collect sales or use taxes for such state or political subdivision based upon conduct of the business occurring wholly or partially within the Commonwealth.
B. Any business meeting the requirements and facing the circumstances described in subsection A shall be entitled to declaratory relief on the issue of whether the requirement of another state, or political subdivision of another state, that the business collect and remit sales or use taxes to that state, or political subdivision, in the factual circumstances of the business’ operations giving rise to the demand, constitutes an undue burden on interstate commerce within the meaning of Article I, Section 8, Clause 3 of the United States Constitution.
C. Any government official meeting the requirements of subdivision A 2 shall be subject to the personal jurisdiction of Virginia circuit courts to the extent permitted by the Constitution of the United States. This subsection shall govern personal jurisdiction in actions under this section, and shall constitute authorization for purposes of § 8.01-330.
§ 8.01-185. Venue.
The venue of actions seeking declarations of right with or without consequential relief shall be determined in accordance with provisions of Chapter 5 (§ 8.01-257 et seq.) of this title.
§ 8.01-186. Further relief.
Further relief based on a declaratory judgment order or decree may be granted whenever necessary or proper. The application shall be by motion to a court having jurisdiction to grant the relief. If the application is deemed sufficient the court shall, on reasonable notice, require an adverse party whose rights have been adjudicated by the declaration of right to show cause why further relief should not be granted forthwith.
§ 8.01-187. Commissioners or condemnation jurors to determine compensation for property taken or damaged.
Whenever it is determined in a declaratory judgment proceeding that a person’s property has been taken or damaged within the meaning of Article I, Section 11 of the Constitution of Virginia and compensation has not been paid or any action taken to determine the compensation within 60 days following the entry of such judgment order or decree, the court which entered the order or decree may, upon motion of such person after reasonable notice to the adverse party, enter a further order appointing commissioners or condemnation jurors to determine the compensation. The appointment of commissioners or condemnation jurors and all proceedings thereafter shall be governed by the procedure prescribed for the condemning authority.
§ 8.01-188. Jury trial.
When a declaration of right or the granting of further relief based thereon shall involve the determination of issues of fact triable by a jury, such issues may be submitted to a jury in the form of interrogatories, with proper instructions by the court, whether a general verdict be required or not.
§ 8.01-189. Injunction.
The pendency of any action at law or suit in equity brought merely to obtain a declaration of rights or a determination of a question of construction shall not be sufficient grounds for the granting of any injunction.
§ 8.01-190. Costs.
The costs, or such part thereof as the court may deem proper and just in view of the particular circumstances of the case, may be awarded to any party.
§ 8.01-191. Construction of article.
This article is declared to be remedial. Its purpose is to afford relief from the uncertainty and insecurity attendant upon controversies over legal rights, without requiring one of the parties interested so to invade the rights asserted by the other as to entitle him to maintain an ordinary action therefor. It is to be liberally interpreted and administered with a view to making the courts more serviceable to the people.
§ 8.01-192. How claims to be prosecuted.
When the Comptroller or other authorized person shall disallow, either in whole or in part, any such claim against the Commonwealth as is provided for by §§ 2.2-814, 2.2-815 or 8.01-605 at which time a right of action under this section shall be deemed to accrue, the person presenting such claim may petition an appropriate circuit court for redress.
§ 8.01-193. Defense and hearing.
In every such case, the Comptroller shall be a defendant. He shall file an answer stating the objections to the claim. The cause shall be heard upon the petition, answer, and the evidence.
§ 8.01-194. Jury may be impaneled; judgment.
The court may, and on the motion of any party shall, cause a jury to be impaneled to ascertain any facts which are disputed, or the amount of any claim which is unliquidated.
§ 8.01-195. No judgment to be paid without special appropriation.
No judgment against the Commonwealth, unless otherwise expressly provided, shall be paid without a special appropriation therefor by law.
§ 8.01-195.1. Short title.
This article shall be known and may be cited as the “Virginia Tort Claims Act.”
§ 8.01-195.2. Definitions.
As used in this article:
“Agency” means any department, institution, authority, instrumentality, board or other administrative agency of the government of the Commonwealth of Virginia and any transportation district created pursuant to Chapter 45 (§ 15.2-4500 et seq.) of Title 15.2 and Chapter 630 of the 1964 Acts of Assembly.
“Employee” means any officer, employee or agent of any agency, or any person acting on behalf of an agency in an official capacity, temporarily or permanently in the service of the Commonwealth, or any transportation district, whether with or without compensation.
“School boards” as defined in § 22.1-1 are not state agencies nor are employees of school boards state employees.
“Transportation district” shall be limited to any transportation district or districts which have entered into an agreement in which the Northern Virginia Transportation District is a party with any firm or corporation as an agent to provide passenger rail services for such district or districts while such firm or corporation is performing in accordance with such agreement.
§ 8.01-195.3. Commonwealth, transportation district or locality liable for damages in certain cases.
Subject to the provisions of this article, the Commonwealth shall be liable for claims for money only accruing on or after July 1, 1982, and any transportation district shall be liable for claims for money only accruing on or after July 1, 1986, on account of damage to or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee while acting within the scope of his employment under circumstances where the Commonwealth or transportation district, if a private person, would be liable to the claimant for such damage, loss, injury or death. However, except to the extent that a transportation district contracts to do so pursuant to § 15.2-4518, neither the Commonwealth nor any transportation district shall be liable for interest prior to judgment or for punitive damages. The amount recoverable by any claimant shall not exceed (i) $25,000 for causes of action accruing prior to July 1, 1988, $75,000 for causes of action accruing on or after July 1, 1988, or $100,000 for causes of action accruing on or after July 1, 1993, or (ii) the maximum limits of any liability policy maintained to insure against such negligence or other tort, if such policy is in force at the time of the act or omission complained of, whichever is greater, exclusive of interest and costs.
Notwithstanding any provision hereof, the individual immunity of judges, the Attorney General, attorneys for the Commonwealth, and other public officers, their agents and employees from tort claims for damages is hereby preserved to the extent and degree that such persons presently are immunized. Any recovery based on the following claims are hereby excluded from the provisions of this article:
1. Any claim against the Commonwealth based upon an act or omission which occurred prior to July 1, 1982.
1a. Any claim against a transportation district based upon an act or omission which occurred prior to July 1, 1986.
2. Any claim based upon an act or omission of the General Assembly or district commission of any transportation district, or any member or staff thereof acting in his official capacity, or to the legislative function of any agency subject to the provisions of this article.
3. Any claim based upon an act or omission of any court of the Commonwealth, or any member thereof acting in his official capacity, or to the judicial functions of any agency subject to the provisions of this article.
4. Any claim based upon an act or omission of an officer, agent or employee of any agency of government in the execution of a lawful order of any court.
5. Any claim arising in connection with the assessment or collection of taxes.
6. Any claim arising out of the institution or prosecution of any judicial or administrative proceeding, even if without probable cause.
7. Any claim by an inmate of a state correctional facility, as defined in § 53.1-1, unless the claimant verifies under oath, by affidavit, that he has exhausted his remedies under the adult institutional inmate grievance procedures promulgated by the Department of Corrections. The time for filing the notice of tort claim shall be tolled during the pendency of the grievance procedure.
Nothing contained herein shall operate to reduce or limit the extent to which the Commonwealth or any transportation district, agency or employee was deemed liable for negligence as of July 1, 1982, nor shall any provision of this article be applicable to any county, city or town in the Commonwealth or be so construed as to remove or in any way diminish the sovereign immunity of any county, city or town in the Commonwealth.
§ 8.01-195.4. Jurisdiction of claims under this article; right to jury trial; service on Commonwealth or locality.
The general district courts shall have exclusive original jurisdiction to hear, determine, and render judgment on any claim against the Commonwealth or any transportation district cognizable under this article when the amount of the claim does not exceed $4,500, exclusive of interest and any attorneys’ fees. Jurisdiction shall be concurrent with the circuit courts when the amount of the claim exceeds $4,500 but does not exceed $25,000, exclusive of interest and such attorneys’ fees. Jurisdiction of claims when the amount exceeds $25,000 shall be limited to the circuit courts of the Commonwealth. The parties to any such action in the circuit courts shall be entitled to a trial by jury.
In all actions against the Commonwealth commenced pursuant to this article, the Commonwealth shall be a proper party defendant, and service of process shall be made on the Attorney General. The notice of claim shall be filed pursuant to § 8.01-195.6 on the Director of the Division of Risk Management or the Attorney General. In all such actions against a transportation district, the district shall be a proper party and service of process and notices shall be made on the chairman of the commission of the transportation district.
§ 8.01-195.5. Settlement of certain cases.
The Attorney General shall have authority in accordance with § 2.2-514 to compromise and settle claims against the Commonwealth cognizable under this article.
The chairman of the commission for a transportation district against which a claim was filed pursuant to this article, or such other person as may be designated by the commission, shall have the authority to compromise, settle and discharge the claim provided (i) the proposed settlement and reasons therefor are submitted to the commission in writing and approved by its members or (ii) the settlement is made in accordance with a written policy approved by the transportation district commission for such settlements. The Director of the Division of Risk Management may adjust, compromise and settle claims against the Commonwealth cognizable under this article prior to the commencement of suit unless otherwise directed by the Attorney General.
§ 8.01-195.6. Notice of claim.
A. Every claim cognizable against the Commonwealth or a transportation district shall be forever barred unless the claimant or his agent, attorney or representative has filed a written statement of the nature of the claim, which includes the time and place at which the injury is alleged to have occurred and the agency or agencies alleged to be liable, within one year after such cause of action accrued. However, if the claimant was under a disability at the time the cause of action accrued, the tolling provisions of § 8.01-229 shall apply.
B. If the claim is against the Commonwealth, the statement shall be filed with the Director of the Division of Risk Management or the Attorney General. If the claim is against a transportation district the statement shall be filed with the chairman of the commission of the transportation district.
C. The notice is deemed filed when it is received in the office of the official to whom the notice is directed. The notice may be delivered by hand, by any form of United States mail service (including regular, certified, registered or overnight mail), or by commercial delivery service.
D. In any action contesting the filing of the notice of claim, the burden of proof shall be on the claimant to establish receipt of the notice in conformity with this section. A signed United States mail return receipt indicating the date of delivery, or any other form of signed and dated acknowledgment of delivery given by authorized personnel in the office of the official with whom the statement is filed, shall be prima facie evidence of filing of the notice under this section.
E. Claims against the Commonwealth involving medical malpractice shall be subject to the provisions of this article and to the provisions of Chapter 21.1 (§ 8.01-581.1 et seq.) of this title. However, the recovery in such a claim involving medical malpractice shall not exceed the limits imposed by § 8.01-195.3.
§ 8.01-195.7. Statute of limitations.
Every claim cognizable against the Commonwealth or a transportation district under this article shall be forever barred, unless within one year after the cause of action accrues to the claimant the notice of claim required by § 8.01-195.6 is properly filed. An action may be commenced pursuant to § 8.01-195.4 (i) upon denial of the claim by the Attorney General or the Director of the Division of Risk Management or, in the case of a transportation district, by the chairman of the commission of that district or (ii) after the expiration of six months from the date of filing the notice of claim unless, within that period, the claim has been compromised and discharged pursuant to § 8.01-195.5. All claims against the Commonwealth or a transportation district under this article shall be forever barred unless such action is commenced within eighteen months of the filing of the notice of claim.
The limitations periods prescribed by this section and § 8.01-195.6 shall be subject to the tolling provision of § 8.01-229 and the pleading provision of § 8.01-235. Additionally, claims involving medical malpractice in which the notice required by this section and § 8.01-195.6 has been given shall be subject to the provisions of § 8.01-581.9. Notwithstanding the provisions of this section, if notice of claim against the Commonwealth was filed prior to July 1, 1984, any claimant so filing shall have two years from the date such notice was filed within which to commence an action pursuant to § 8.01-195.4.
§ 8.01-195.8. Release of further claims.
Notwithstanding any provision of this article, the liability for any claim or judgment cognizable under this article shall be conditioned upon the execution by the claimant of a release of all claims against the Commonwealth, its political subdivisions, agencies, and instrumentalities or against the transportation district, and against any officer or employee of the Commonwealth or the transportation district in connection with, or arising out of, the occurrence complained of.
§ 8.01-195.9. Claims evaluation program.
The Division of Risk Management of the Department of the Treasury and the Attorney General shall develop cooperatively an actuarially sound program for identifying, evaluating and setting reserves for the payment of claims cognizable under this article.
§ 8.01-195.10. Purpose; action by the General Assembly required; definitions.
A. The purpose of this article is to provide directions and guidelines for the compensation of persons who have been wrongfully incarcerated in the Commonwealth. Compensation for wrongful incarceration is governed by Article IV, Section 14 of the Constitution of Virginia, which prohibits the General Assembly from granting relief in cases in which the courts or other tribunals may have jurisdiction and any individual seeking payment of state funds for wrongful incarceration shall be deemed to have waived all other claims. The payment and receipt of any compensation for wrongful incarceration shall be contingent upon the General Assembly appropriating funds for that purpose. This article shall not provide an entitlement to compensation for persons wrongfully incarcerated or require the General Assembly to appropriate funds for the payment of such compensation. No estate of or personal representative for a decedent shall be entitled to seek a claim for compensation for wrongful incarceration.
B. As used in this article:
“Incarceration” or “incarcerated” means confinement in a local or regional correctional facility, juvenile correctional center, state correctional facility, residential detention center, or facility operated pursuant to the Corrections Private Management Act (§ 53.1-261 et seq.).
“Wrongful incarceration” or “wrongfully incarcerated” means incarceration for a felony conviction for which (i) the conviction has been vacated pursuant to Chapter 19.2 (§ 19.2-327.2 et seq.) or 19.3 (§ 19.2-327.10 et seq.) of Title 19.2, or the person incarcerated has been granted an absolute pardon for the commission of a crime that he did not commit, (ii) the person incarcerated must have entered a final plea of not guilty, or regardless of the plea, any person sentenced to death, or convicted of a Class 1 felony, a Class 2 felony, or any felony for which the maximum penalty is imprisonment for life, and (iii) the person incarcerated did not by any act or omission on his part intentionally contribute to his conviction for the felony for which he was incarcerated.
§ 8.01-195.11. Compensation for wrongful incarceration.
A. Any person who is convicted of a felony by a county or city circuit court of the Commonwealth and is wrongfully incarcerated for such felony may be awarded compensation in an amount equal to 90 percent of the inflation adjusted Virginia per capita personal income as reported by the Bureau of Economic Analysis of the United States Department of Commerce for each year, or portion thereof, of incarceration up to 20 years.
B. Any compensation computed pursuant to subsection A and approved by the General Assembly shall be paid by the Comptroller by his warrant on the State Treasurer in favor of the person found to have been wrongfully incarcerated. The person wrongfully incarcerated shall be paid an initial lump sum equal to 20 percent of the compensation award with the remaining 80 percent of the principal of the compensation award to be used by the State Treasurer to purchase an annuity from any A+ rated company, including any A+ rated company from which the State Lottery Department may purchase an annuity, to provide equal monthly payments to such person for a period certain of 25 years commencing no later than one year after the effective date of the appropriation. The annuity shall provide that it shall not be sold, discounted, or used as securitization for loans and mortgages by the person awarded compensation. The annuity shall, however, contain beneficiary provisions providing for the annuity’s continued disbursement in the event of the death of the person awarded compensation. All payments or costs of annuities under this section shall be made by check issued by the State Treasurer on warrant of the Comptroller.
C. Any person who is convicted of a felony by a county or city circuit court of the Commonwealth and is wrongfully incarcerated for such felony shall receive a transition assistance grant of $15,000 to be paid from the Criminal Fund, which amount shall be deducted from any award received pursuant to subsection B. In addition, such person shall be entitled to receive reimbursement up to $10,000 for tuition for career and technical training within the Virginia community college system contingent upon successful completion of the training. Reimbursement for tuition shall be provided by the community college at which the career or technical training was completed.
§ 8.01-195.12. Conditions for continued compensation.
A. Any person awarded compensation under this article who is subsequently convicted of a felony shall, immediately upon such conviction, not be eligible to receive any unpaid amounts from any compensation awarded and his beneficiaries shall not be eligible to receive any payments under an annuity purchased pursuant to subsection B of § 8.01-195.11. Any unpaid amounts remaining under any annuity shall become the property of the Commonwealth and shall be deposited into the general fund of the state treasury.
A1. Any person awarded compensation under this article who is subsequently incarcerated upon the revocation of parole or probation resulting from the commission of an act that constitutes a crime shall, during the period of such incarceration, forfeit any payments under an annuity purchased pursuant to subsection B of § 8.01-195.11. Any forfeited amounts under any annuity shall become the property of the Commonwealth and shall be deposited into the general fund of the state treasury.
B. As a condition of receiving any compensation under this article, a person shall execute a release and waiver forever releasing (i) the Commonwealth or any agency, instrumentality, officer, employee, or political subdivision thereof, (ii) any legal counsel appointed pursuant to § 19.2-159, and (iii) all other parties of interest, from any present or future claims the person receiving compensation may have against such enumerated parties and arising out of the factual situation in connection with the conviction for which compensation is being sought under this article. In addition, the person receiving compensation shall not have been awarded a finally adjudicated judgment in a court of law against or received any funds pursuant to a settlement agreement with any person or entity described in this subsection for compensation or damages arising out of the factual situation in connection with the conviction.
§ 8.01-196. Comptroller to institute proceedings.
The Comptroller shall institute and prosecute all proceedings proper to enforce payment of money to the Commonwealth.
§ 8.01-197. In what name; when not to abate.
Any such action shall be in the name of the Commonwealth of Virginia except when it is on a bond payable to, or a contract made with, the Governor or some other person. And then it may be in the name of such Governor or other person for the use of the Commonwealth, notwithstanding such Governor or other person may have died, resigned, or been removed from office before the commencement of the action. And there shall be no abatement thereof, by reason of the death, resignation, or removal from office of any such plaintiff pending the action.
§ 8.01-198. Action, against whom instituted.
Any such action may be instituted against any person indebted or liable to the Commonwealth in any way whatever, and against his sureties, and against his and their personal representatives. And it may be made when the debt or liability is created or secured by a bond or other instrument, whether the same be payable to the Commonwealth or to any person acting in a public character on behalf of the Commonwealth, or be for the payment of money or the performance of other duties. Every judgment on any such motion shall be in the name of the Commonwealth.
§ 8.01-199. Judgment, nature of.
On any such motion, the judgment shall be for so much principal and interest as would be recoverable by action. It may be also for fifteen per centum damages in addition thereto when the proceeding is against a treasurer, sheriff, or other collector, or his sureties, or his or their personal representatives, for taxes or other public money which ought to have been paid into the state treasury. In such proceeding, the court, in pronouncing judgment, may consider all the circumstances, and give judgment for the damages or not, or for such part of the damages, as it may deem proper.
§ 8.01-200. Mistakes against State corrected.
After a debt to the Commonwealth shall have been paid, if it appear that an error or mistake has been committed to its prejudice, whether before or after the issuing of execution, a motion may be made on ten days’ notice against any person liable for the debt, for the amount of such error or mistake, and judgment may be given therefor, without interest or damages thereon.
§ 8.01-201. Execution; real estate to be sold.
In a writ of fieri facias upon a judgment or decree against any person indebted or liable to the Commonwealth, or against any surety of his, after the words “we command you that of the,” the clerk shall insert the words “goods, chattels, and real estate,” and conform the subsequent part of such writ thereto. And under any writ so issued, real estate may be taken and sold.
§ 8.01-202. Execution, to whom issued.
An execution on behalf of the Commonwealth from the Circuit Court of the City of Richmond may, if the Comptroller see fit, be directed to any sheriff, of any political subdivision, and shall be served by any of such officers in whose hands the Comptroller may cause it to be placed.
§ 8.01-203. Goods and chattels liable before real estate.
Every writ of fieri facias, issued according to § 8.01-201, shall be levied first on the goods and chattels of the person against whose estate such writ issued. If, in the political subdivision, the residence of such person, there are no goods and chattels liable thereto, or not a sufficiency thereof, then the officer having such writ shall levy it on the real estate of such person.
§ 8.01-204. Notice of sale of real estate; when sale to be made.
When a levy is so made upon real estate, the officer making it shall post notice thereof, and of the time and place of sale, at such public places as may seem to him expedient, and at the front door of the courthouse of the political subdivision in which the real estate is, on a court day. The time of selling real estate shall be not less than sixty nor more than ninety days from the time of posting the notice at the courthouse door. And the sale shall take place at the premises or at the door of the courthouse, as the officer may deem most advisable.
§ 8.01-205. How sale made.
If the amount of the execution be not sooner paid, such officer shall proceed, on the day mentioned in the notice, to sell at public auction the interest of the party against whom the execution issued in the real estate or so much thereof as the officer may deem sufficient; and if a part only be sold it shall be laid off in one parcel in such place and manner as the debtor or his agent may direct or, if he give no direction, as the officer may deem best.
§ 8.01-206. Terms of sale.
The sale shall be upon six months’ credit; and if the land be not purchased for the Commonwealth, the officer shall take bond of the purchaser, with sureties, for the payment of the purchase money to the Commonwealth. Every such bond shall mention on what occasion the same was taken, and be returned to the office of the court from which the execution issued, and the clerk shall endorse thereon the date of its return.
§ 8.01-207. Who to collect purchase money and make deed; disposition of proceeds of sale.
On or before the maturity of such bond the sheriff or other officer who made the sale shall withdraw the bond from the clerk’s office, leaving his receipt therefor and an attested copy thereof, and collect the same. So soon as the purchase money has been paid, the sheriff or other principal officer, or the deputy who acted in making the sale, shall, as commissioner, and in the name of the Commonwealth, convey the land to the purchaser by deed executed at his costs, reciting the execution, the sale and the price of the land. Such deed shall pass to the purchaser all the interest which the party against whom the execution issued had in the land at the date of the judgment or decree. Out of the money so collected the sheriff or officer who made the sale shall pay all costs attending such execution and sale, the costs of a survey, if there was one, all delinquent and unpaid taxes and levies on such land and the debt due the Commonwealth, and the residue, if any, he shall pay to the judgment debtor.
§ 8.01-208. When successor of officer to make deed.
When the officer and his deputy who acted in making the sale have both died or removed from the Commonwealth before making such deed, the same may be executed by any successor of such officer.
§ 8.01-209. Bond for purchase money to have force of judgment.
When any bond taken under § 8.01-206 becomes payable and is returned to the office of the court from which the execution issued, it shall have the force of a judgment against such of the obligors therein as may be then alive. Execution may be issued thereon against them. And the same shall be proceeded under in like manner as an execution issued on such a judgment or decree as is mentioned in § 8.01-201, save only that the clerk shall endorse “no security is to be taken,” and the officer shall govern himself accordingly and sell for ready money any real estate which he may levy on under the same.
§ 8.01-210. Judgment against deceased obligors.
A judgment may be obtained against the survivors of a deceased obligor of a bond taken under the provisions of § 8.01-206 by an action at law against the personal representative of such obligor.
§ 8.01-211. When venditioni exponas issued to sheriff of adjacent county; what to contain.
When return is made on any execution on behalf of the Commonwealth that goods, chattels or real estate remain unsold for want of bidders, or to that effect, the clerk of the court from which such execution issued shall, when required by the Comptroller, issue a writ of venditioni exponas, directed to the sheriff of any county adjacent to that in which the levy was made that the Comptroller may designate. Such writ shall recite the execution under which the levy was made, the nature of such levy and return that the property remains unsold for the want of bidders and shall command the sheriff of such adjacent county, if the property remaining unsold be goods or chattels, to go into the county in which the levy was made and receive the same from the officer that made the levy and, whether the property be goods, chattels, or real estate, to sell the same.
§ 8.01-212. Officer to deliver to sheriff goods and chattels levied on.
The officer who made the levy shall deliver the goods and chattels to the sheriff to whom such writ of venditioni exponas may be directed, upon such sheriff’s producing to him such writ and executing a receipt for such goods and chattels. If the officer shall fail to deliver the same and return be made on such writ to that effect, the court from which it issued, upon motion, may give judgment against him and his sureties for the whole sum that the execution amounted to at the time of such failure, with interest thereon from that time.
§ 8.01-213. Where same to be sold.
The sheriff to whom such writ of venditioni exponas is directed, shall sell the goods and chattels in the county where received, if they can be sold therein, and if not he shall cause them to be removed to the courthouse of his own county and there sold. The removal shall be at the costs of the party against whom the execution issued, and the sale under the execution shall be to raise the cost of removal, in addition to the amount which it would otherwise have been necessary to raise.
§ 8.01-214. Where real estate to be sold.
Such sheriff shall also sell the real estate levied on in the county wherein the levy was made, if it can be done, and if it cannot he shall make the sale at the courthouse of his own county.
§ 8.01-215. Return of officer when sale not made because of prior encumbrance.
In any case in which an officer, having an execution on behalf of the Commonwealth, shall decline levying it because of any previous conveyance, execution, or encumbrance, a return shall be made setting forth the nature of such conveyance, execution or encumbrance, in whose favor, and for what amount, and the court in which the conveyance or encumbrance is recorded, or from which the execution issued.
§ 8.01-216. Comptroller’s power to adjust old claims.
The Comptroller, with the advice of the Attorney General, may adjust and settle upon equitable principles, without regard to strict legal rules, any doubtful or disputed account or claim in favor of the Commonwealth which may have been standing on the books of his office not less than two years, and may, with the like advice, dismiss any proceedings instituted by him; but before such adjustment or settlement can in any wise affect the rights of the Commonwealth it shall be approved and endorsed by the Attorney General and shall then be submitted to the supervision of the judge of the Circuit Court of the City of Richmond, accompanied by a written statement signed by the Comptroller of the facts and reasons which, in his opinion, render such adjustment or settlement just and proper. When such judge endorses the same with his written approval, signed in his official character, it shall be considered and treated as valid and binding.
§ 8.01-216.1. Citation.
This article may be cited as the Virginia Fraud Against Taxpayers Act.
§ 8.01-216.2. Definitions.
As used in this article, unless the context requires otherwise:
“Attorney General” means the Attorney General of Virginia, the Chief Deputy, other deputies, counsels or assistant attorneys general employed by the Office of the Attorney General and designated by the Attorney General to act pursuant to this article.
“Claim” means any request or demand, whether under a contract or otherwise, for money or property, regardless of whether the Commonwealth has title to the money or property, that (i) is presented to an officer, employee, or agent of the Commonwealth or (ii) is made to a contractor, grantee, or other recipient (a) if the money or property is to be spent or used on the Commonwealth’s behalf or to advance a governmental program or interest and (b) if the Commonwealth provides or has provided any portion of the money or property requested or demanded or will reimburse such contractor, grantee, or other recipient for any portion of the money or property that is requested or demanded. For purposes of this article, “claim” does not include requests or demands for money or property that the Commonwealth has paid to an individual as compensation for employment with the Commonwealth or as income subsidy with no restriction on that individual’s use of the money or property.
“Commonwealth” means the Commonwealth of Virginia, any agency of state government, and any political subdivision of the Commonwealth.
“Documentary material” means the original or any copy of any book, record, report, memorandum, paper, communication, tabulation, chart, or other document, or data compilations stored in or accessible through computer or other information retrieval systems, together with instructions and all other materials necessary to use or interpret such data compilations, and any product of discovery.
“Employee” includes an employee or officer of the Commonwealth.
“Employer” includes the Commonwealth.
“Investigation” means any inquiry conducted by an investigator for the purpose of ascertaining whether any person is or has been engaged in any violation of this article.
“Material” means having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.
“Obligation” means an established duty, whether or not fixed, arising from (i) an express or implied contractual, grantor-grantee, or licensor-licensee relationship; (ii) a fee-based or similar relationship; (iii) a statute or regulation; or (iv) the retention of any overpayment.
“Official use” means any use that is consistent with the law, regulations, and policies of the Commonwealth, including use in connection with (i) internal memoranda and reports of the Office of the Attorney General; (ii) communications between the Office of the Attorney General and a federal, state, or local government agency, or a contractor of a federal, state, or local government agency, undertaken in furtherance of an Office of the Attorney General investigation or prosecution of a case; (iii) interviews of any qui tam relator or other witness; (iv) oral examinations; (v) depositions; (vi) the preparation for and response to civil discovery requests; (vii) the introduction into the record of a case or proceeding; (viii) applications, motions, memoranda, and briefs submitted to a court or other tribunal; and (ix) communications with government investigators, auditors, consultants, experts, the counsel of other parties, arbitrators, and mediators, concerning an investigation, case, or proceeding.
“Person” includes any natural person, corporation, firm, association, organization, partnership, limited liability company, business or trust.
“Product of discovery” means (i) the original or duplicate of any deposition, interrogatory, document, thing, result of the inspection of land or other property, examination, or admission, which is obtained by any method of discovery in any judicial or administrative proceeding of an adversarial nature; (ii) any digest, analysis, selection, compilation, or derivation of any item listed in clause (i); and (iii) any index or other manner of access to any item listed in clause (i).
§ 8.01-216.3. False claims; civil penalty.
A. Any person who:
1. Knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval;
2. Knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim;
3. Conspires to commit a violation of subdivision 1, 2, 4, 5, 6, or 7;
4. Has possession, custody, or control of property or money used, or to be used, by the Commonwealth and knowingly delivers, or causes to be delivered, less than all such money or property;
5. Is authorized to make or deliver a document certifying receipt of property used, or to be used, by the Commonwealth and, intending to defraud the Commonwealth, makes or delivers the receipt without completely knowing that the information on the receipt is true;
6. Knowingly buys or receives as a pledge of an obligation or debt, public property from an officer or employee of the Commonwealth who lawfully may not sell or pledge the property; or
7. Knowingly makes, uses, or causes to be made or used, a false record or statement material to an obligation to pay or transmit money or property to the Commonwealth or knowingly conceals or knowingly and improperly avoids or decreases an obligation to pay or transmit money or property to the Commonwealth;
shall be liable to the Commonwealth for a civil penalty of not less than $5,500 and not more than $11,000, plus three times the amount of damages sustained by the Commonwealth.
A person violating this section shall be liable to the Commonwealth for reasonable attorney fees and costs of a civil action brought to recover any such penalties or damages. All such fees and costs shall be paid to the Attorney General’s Office by the defendant and shall not be included in any damages or civil penalties recovered in a civil action based on a violation of this section.
B. If the court finds that (i) the person committing the violation of this section furnished officials of the Commonwealth responsible for investigating false claims violations with all information known to the person about the violation within 30 days after the date on which the defendant first obtained the information; (ii) such person fully cooperated with any Commonwealth investigation of such violation; (iii) at the time such person furnished the Commonwealth with the information about the violation, no criminal prosecution, civil action, or administrative action had commenced with respect to such violation; and (iv) the person did not have actual knowledge of the existence of an investigation into such violation, the court may assess not less than two times the amount of damages that the Commonwealth sustains because of the act of that person. A person violating this section shall also be liable to the Commonwealth for the costs of a civil action brought to recover any such penalty or damages.
C. For purposes of this section, the terms “knowing” and “knowingly” mean that a person, with respect to information, (i) has actual knowledge of the information; (ii) acts in deliberate ignorance of the truth or falsity of the information; or (iii) acts in reckless disregard of the truth or falsity of the information and require no proof of specific intent to defraud.
D. This section shall not apply to claims, records or statements relating to state or local taxes.
§ 8.01-216.4. Attorney General; investigation, civil action.
The Attorney General shall investigate any violation of § 8.01-216.3. If the Attorney General finds that a person has violated or is violating § 8.01-216.3, the Attorney General may bring a civil action under this section.
§ 8.01-216.5. Civil actions filed by private persons; Commonwealth may intervene.
A. A person may bring a civil action for a violation of § 8.01-216.3 for the person and for the Commonwealth. The action shall be brought in the name of the Commonwealth. The action may be dismissed only if the court and the Attorney General give written consent to the dismissal and their reasons for consenting.
B. A copy of the complaint and written disclosure of substantially all material evidence and information the person possesses shall be served on the Commonwealth. The complaint shall be filed in camera, shall remain under seal for at least 120 days, and shall not be served on the defendant until the court so orders. The Commonwealth may elect to intervene and proceed with the action within 120 days after it receives both the complaint and the material evidence and information.
C. The Commonwealth may, for good cause shown, move the court for extensions of the time during which the complaint remains under seal. Any such motions may be supported by affidavits or other submissions in camera. The defendant shall not be required to respond to any motion for judgment filed under this section until twenty-one days after the complaint is unsealed and served upon the defendant.
D. Before the expiration of the 120-day period or any extensions obtained under subsection C, the Commonwealth shall proceed with the action, in which case the action shall be conducted by the Commonwealth, or notify the court that it declines to take over the action, in which case the person bringing the action shall have the right to prosecute the action.
E. When a person brings an action under this section, no person other than the Commonwealth may intervene or bring a related action based on the facts underlying the pending action.
§ 8.01-216.6. Rights of private plaintiff and Commonwealth.
A. If the Commonwealth proceeds with the action, it shall have the primary responsibility for prosecuting the action, and shall not be bound by an act of the person bringing the action. Such person shall have the right to continue as a party to the action, subject to the limitations of this section.
B. The Commonwealth may dismiss the action notwithstanding the objections of the person initiating the action if the person has been notified by the Commonwealth of the filing of the complaint and the court has provided the person with an opportunity for a hearing on the complaint.
C. The Commonwealth may settle the action with the defendant notwithstanding the objections of the person initiating the action if the court determines, after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances. Upon a showing of good cause, such hearing may be held in camera. The Commonwealth may, for good cause shown, move the court for a partial lifting of the seal to facilitate the investigative process or settlement.
D. Upon a showing by the Commonwealth that unrestricted participation during the course of the litigation by the person initiating the action would interfere with or unduly delay the Commonwealth’s prosecution of the case, or would be repetitious, irrelevant, or for purposes of harassment, the court may, in its discretion, impose limitations on the person’s participation, such as (i) limiting the number of witnesses the person may call; (ii) limiting the length of the testimony of such witnesses; (iii) limiting the person’s cross-examination of witnesses; and (iv) otherwise limiting the participation by the person in the litigation.
E. Upon a showing by the defendant that unrestricted participation during the course of the litigation by the person initiating the action would be for purposes of harassment or would cause the defendant undue burden or unnecessary expense, the court may limit the participation by the person in the litigation.
F. If the Commonwealth elects not to proceed with the action, the person who initiated the action shall have the right to conduct the action. If the Commonwealth so requests, it shall be served with copies of all pleadings filed in the action and shall be supplied with copies of all deposition transcripts at the Commonwealth’s expense. When a person proceeds with the action, the court, without limiting the status and rights of the person initiating the action, may nevertheless permit the Commonwealth to intervene at a later date upon a showing of good cause.
G. Whether or not the Commonwealth proceeds with the action, upon a showing by the Commonwealth that certain actions of discovery by the person initiating the action would interfere with the Commonwealth’s investigation or prosecution of a criminal or civil matter arising out of the same facts, the court may stay such discovery for a period of not more than sixty days. Such a showing shall be conducted in camera. The court may extend the sixty-day period upon a further showing in camera that the Commonwealth has pursued the criminal or civil investigation or proceedings with reasonable diligence and any proposed discovery in the civil action will interfere with the ongoing criminal or civil investigation or proceedings.
H. Notwithstanding the provisions of subsection B of § 8.01-216.5, the Commonwealth may elect to pursue its claim through any alternate remedy available to the Commonwealth, including any administrative proceeding to determine a civil money penalty. If any such alternate remedy is pursued in another proceeding, the person initiating the action shall have the same rights in such proceeding as such person would have had if the action had continued under this section. Any finding of fact or conclusion of law made in such other proceeding that has become final shall be conclusive on all parties to an action under this article. For purposes of this subsection, a finding or conclusion is final if it has been finally determined on appeal to a court of competent jurisdiction of the Commonwealth, if the time for filing an appeal with respect to the finding or conclusion has expired, or if the finding or conclusion is not subject to judicial review.
§ 8.01-216.7. Award to private plaintiff.
A. Except as hereinafter provided, if the Commonwealth proceeds with an action brought by a person under § 8.01-216.5, such person shall receive at least fifteen percent but not more than twenty-five percent of the proceeds of the action or settlement of the claim, depending upon the extent to which the person substantially contributed to the prosecution of the action. Where the action is one that the court finds to be based primarily on disclosures of specific information, other than information provided by the person bringing the action, relating to allegations or transactions in a criminal, civil, or administrative hearing, in a legislative, administrative, or Auditor of Public Accounts’ report, hearing, audit, or investigation, or from the news media, the court may award such sums as it considers appropriate, but in no case more than ten percent of the proceeds, taking into account the significance of the information and the role of the person bringing the action in advancing the case to litigation. Any payment to a person under this section shall be made from the proceeds of the award. Any such person shall also receive an amount for reasonable expenses that the court finds to have been necessarily incurred, plus reasonable attorneys’ fees and costs. All such expenses, fees, and costs shall be awarded against the defendant.
B. If the Commonwealth does not proceed with an action, the person bringing the action or settling the claim shall receive an amount that the court decides is reasonable for collecting the civil penalty and damages. The amount shall be not less than twenty-five percent and not more than thirty percent of the proceeds of the award or settlement and shall be paid out of the proceeds. Such person shall also receive an amount for reasonable expenses that the court finds to have been necessarily incurred, plus reasonable attorneys’ fees and costs. All such expenses, fees, and costs shall be awarded against the defendant.
C. Whether or not the Commonwealth proceeds with the action, if the court finds that the action was brought by a person who planned and initiated the violation of § 8.01-216.3 upon which the action was brought, or if the person bringing the action is convicted of criminal conduct arising from his role in the violation of § 8.01-216.3, that person shall be dismissed from the civil action and shall not receive any share of the proceeds of the action. Such dismissal shall not prejudice the right of the Commonwealth to continue the action.
D. If the Commonwealth does not proceed with the action and the person bringing the action conducts the action, the court may award to the defendant its reasonable attorneys’ fees and expenses if the defendant prevails in the action and the court finds that the claim of the person bringing the action was clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment.
§ 8.01-216.8. Certain actions barred; relief from employment discrimination; waiver of sovereign immunity.
No court shall have jurisdiction over an action brought under § 8.01-216.5 based on information discovered by a present or former employee of the Commonwealth during the course of his employment unless that employee first, in good faith, exhausted existing internal procedures for reporting and seeking recovery of the falsely claimed sums through official channels and unless the Commonwealth failed to act on the information provided within a reasonable period of time.
No court shall have jurisdiction over any action brought under this article by an inmate incarcerated within a state or local correctional facility as defined in § 53.1-1.
No court shall have jurisdiction over an action brought under this article against any department, authority, board, bureau, commission, or agency of the Commonwealth, any political subdivision of the Commonwealth, a member of the General Assembly, a member of the judiciary, or an exempt official if the action is based on evidence or information known to the Commonwealth when the action was brought. For purposes of this section, “exempt official” means the Governor, Lieutenant Governor, Attorney General and the directors or members of any department, authority, board, bureau, commission or agency of the Commonwealth or any political subdivision of the Commonwealth.
In no event may a person bring an action under this article that is based upon allegations or transactions that are the subject of a civil suit or an administrative proceeding in which the Commonwealth is already a party.
The court shall dismiss an action or claim under § 8.01-216.5 unless opposed by the Commonwealth if substantially the same allegations or transactions as alleged in the action or claim were publicly disclosed in a criminal, civil or administrative hearing in which the Commonwealth or its agent is a party, in a legislative, administrative, or Auditor of Public Accounts’ report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information. For purposes of this section, “original source” means an individual (i) who either prior to a public disclosure has voluntarily disclosed to the Commonwealth the information on which the allegations or transactions in a claim are based or (ii) who has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions and who has voluntarily provided the information to the Commonwealth before filing an action under this article.
Except as otherwise provided in this section, the Commonwealth shall not be liable for expenses a person incurs in bringing an action under this article.
Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, or agent on behalf of the employee, contractor, or agent or associated others in furtherance of others’ efforts to stop one or more violations of this article. Relief shall include reinstatement with the same seniority status that employee, contractor, or agent would have had but for the discrimination, two times the amount of back pay, interest on the back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorney fees. Any relief awarded to an employee under this section shall be reduced by any amount awarded to the employee through a state or local grievance process. An action under this section may be brought in a court of competent jurisdiction for the relief provided in this section. This paragraph shall constitute a waiver of sovereign immunity and creates a cause of action by an employee against the Commonwealth if the Commonwealth is the employer responsible for the adverse employment action that would entitle the employee to the relief set forth in this paragraph.
§ 8.01-216.9. Procedure; statute of limitations.
A subpoena requiring the attendance of a witness at a trial or hearing conducted under this article may be served at any place in the Commonwealth.
A civil action under § 8.01-216.4 or 8.01-216.5 may not be brought (i) more than six years after the date on which the violation is committed or (ii) more than three years after the date when facts material to the right of action are known or reasonably should have been known by the official of the Commonwealth charged with responsibility to act in the circumstances, but in that event no more than ten years after the date on which the violation is committed, whichever occurs last.
If the Commonwealth elects to intervene and proceed with an action brought under § 8.01-216.5, the Commonwealth may file its own complaint or amend the complaint of a person who has brought an action under § 8.01-216.5 to clarify or add detail to any claim in which the Commonwealth is intervening and to add any additional claim for which the Commonwealth contends it is entitled to relief. Any complaint filed by the Commonwealth pursuant to this paragraph shall relate back to the filing date of the complaint of the person who originally brought the action, to the extent that the claim of the Commonwealth arises out of the conduct, transactions, or occurrences set forth, or attempted to be set forth, in such person’s complaint.
In any action brought under § 8.01-216.4 or 8.01-216.5, the Commonwealth shall be required to prove all essential elements of the cause of action, including damages, by a preponderance of the evidence.
Notwithstanding any other provision of law, a final judgment rendered in favor of the Commonwealth in any criminal proceeding charging fraud or false statements, whether upon a verdict after trial or upon a plea of guilty or nolo contendere, shall estop the defendant from denying the essential elements of the offense in any action that involves the same transaction as in the criminal proceeding and which is brought under § 8.01-216.4 or 8.01-216.5.
§ 8.01-216.10. Civil investigative demands; issuance; sharing information.
A. Whenever the Attorney General or his designee has reason to believe that any person may be in possession, custody, or control of any documentary material or information relevant to a false claims law investigation, the Attorney General or his designee may, before commencing a civil proceeding or making an election under this article, issue in writing and cause to be served upon such person, a civil investigative demand requiring such person (i) to produce such documentary material for inspection and copying, (ii) to answer in writing written interrogatories with respect to such documentary material or information, (iii) to give oral testimony concerning such documentary material or information, or (iv) to furnish any combination of such material, answers, or testimony.
B. Whenever a civil investigative demand is an express demand for any product of discovery, the Attorney General shall cause to be served, in any manner authorized by this article, a copy of such demand upon the person from whom the discovery was obtained and shall notify the person to whom such demand is issued of the date on which such copy was served.
C. Any information obtained by the Attorney General or his designee pursuant to this section may be shared with any qui tam relator if the Attorney General or his designee determines that such information is necessary as part of any false claims investigation.
§ 8.01-216.11. Civil investigative demands; contents and deadlines.
Each civil investigative demand issued under this article shall state the nature of the conduct constituting the alleged violation of a false claims law that is under investigation, and the applicable provision of law alleged to be violated.
If such demand is for the production of documentary material, the demand shall (i) describe each class of documentary material to be produced with such definiteness and certainty as to permit such material to be fairly identified; (ii) prescribe a return date for each such class that will provide a reasonable period of time within which the material so demanded may be assembled and made available for inspection and copying; and (iii) identify the false claims law investigator to whom such material shall be made available.
If such demand is for answers to written interrogatories, the demand shall (i) set forth with specificity the written interrogatories to be answered; (ii) prescribe dates at which time answers to written interrogatories shall be submitted; and (iii) identify the false claims law investigator to whom such answers shall be submitted.
If such demand is for the giving of oral testimony, the demand shall (i) prescribe a date, time, and place at which oral testimony shall be commenced; (ii) identify a false claims law investigator who shall conduct the examination and the custodian to whom the transcript of such examination shall be submitted; (iii) specify that such attendance and testimony are necessary to the conduct of the investigation; (iv) notify the person receiving the demand of the right to be accompanied by an attorney and any other representative; and (v) describe the general purpose for which the demand is being issued and the general nature of the testimony, including the primary areas of inquiry that will be taken pursuant to the demand.
Any civil investigative demand that is an express demand for any product of discovery shall not be returned or returnable until twenty-one days after a copy of such demand has been served upon the person from whom the discovery was obtained.
The date prescribed for the commencement of oral testimony pursuant to a civil investigative demand issued under this article shall be a date that is not less than seven days after the date on which the demand is received, unless the Attorney General determines that exceptional circumstances are present that warrant the commencement of such testimony within a lesser period of time.
The Attorney General shall not authorize the issuance of more than one civil investigative demand for oral testimony by the same person unless the person requests otherwise or unless the Attorney General, after investigation, notifies that person in writing that an additional demand for oral testimony is necessary.
§ 8.01-216.12. Civil investigative demands; protected material or information.
A civil investigative demand issued under this article shall not require the production of any documentary material, the submission of any answers to written interrogatories, or the giving of any oral testimony if such material, answers, or testimony would be protected from disclosure under (i) the standards applicable to subpoenas or subpoenas duces tecum issued by a court of this Commonwealth to aid in a grand jury investigation or (ii) the standards applicable to discovery requests under the Rules of the Supreme Court of Virginia, to the extent that the application of such standards to any such demand is appropriate and consistent with the provisions and purposes of this article.
Any such demand that is an express demand for any product of discovery supersedes any inconsistent order, rule, or provision of law, other than this section, preventing or restraining disclosure of such product of discovery to any person. Disclosure of any product of discovery pursuant to any such express demand does not constitute a waiver of any right or privilege that the person making such disclosure may be entitled to invoke to resist discovery of trial preparation materials.
§ 8.01-216.13. Civil investigative demands; service and jurisdiction.
Any civil investigative demand issued under this article may be served by an investigator, or by any person authorized to serve process on individuals in the Commonwealth.
Any such demand or any petition filed under this article may be served upon any person who is not found within Virginia in such manner as the Rules of the Supreme Court of Virginia or the Code of Virginia prescribe for service of process outside Virginia. To the extent that the courts of this Commonwealth can assert jurisdiction over any such person consistent with due process, the courts of this Commonwealth shall have the same jurisdiction to take any action respecting compliance with the provisions of this article by any such person that the court would have if such person were personally within the jurisdiction of the court.
Service of any civil investigative demand issued under this article or of any petition filed under this article may be made upon a partnership, corporation, association, or other legal entity by (i) delivering an executed copy of such demand or petition to any partner, executive officer, managing agent, or general agent of the partnership, corporation, association, or entity, or to any agent authorized by appointment or by law to receive service of process on behalf of such partnership, corporation, association, or entity; (ii) delivering an executed copy of such demand or petition to the principal office or place of business of the partnership, corporation, association, or entity; or (iii) depositing an executed copy of such demand or petition in the United States mail by registered or certified mail, with a return receipt requested, addressed to such partnership, corporation, association, or entity at its principal office or place of business.
Service of any such demand or petition may be made upon any natural person by (i) delivering an executed copy of such demand or petition to the person, or (ii) depositing an executed copy of such demand or petition in the United States mail by registered or certified mail, with a return receipt requested, addressed to the person at the person’s residence or principal office or place of business.
A verified return by the individual serving any civil investigative demand issued under this article or any petition filed under this article setting forth the manner of such service shall be proof of service. In the case of service by registered or certified mail, such return shall be accompanied by the return post office receipt of delivery of such demand.
§ 8.01-216.14. Civil investigative demands; documentary material.
The production of documentary material in response to a civil investigative demand served under this article shall be made under a sworn certificate, in such form as the demand designates, by (i) in the case of a natural person, the person to whom the demand is directed, or (ii) in the case of a person other than a natural person, a person having knowledge of the facts and circumstances relating to such production and authorized to act on behalf of such person. The certificate shall state that all of the documentary material required by the demand and in the possession, custody, or control of the person to whom the demand is directed has been produced and made available to the investigator identified in the demand.
Any person upon whom any civil investigative demand for the production of documentary material has been served shall make such material available for inspection and copying to the investigator identified in such demand at the principal place of business of such person, or at such other place as the investigator and the person thereafter may agree and prescribe in writing, or as the court may direct. Such material shall be made available on the return date specified in such demand, or on such later date as the investigator may prescribe in writing. Such person may, upon written agreement between the person and the investigator, substitute copies for originals of all or any part of such material.
§ 8.01-216.15. Civil investigative demands; interrogatories.
Each inquiry in a civil investigative demand served under this article shall be answered separately and fully in writing under oath and shall be submitted under a sworn certificate, in such form as the demand designates, by (i) in the case of a natural person, the person to whom the demand is directed, or (ii) in the case of a person other than a natural person, the person or persons responsible for answering each inquiry. If any inquiry is objected to, the reasons for the objection shall be stated in the certificate instead of an answer. The certificate shall state that all information required by the demand and in the possession, custody, control, or knowledge of the person to whom the demand is directed has been submitted. To the extent that any information is not furnished, the information shall be identified and reasons set forth with particularity regarding the reasons why the information was not furnished.
§ 8.01-216.16. Civil investigative demands; oral examinations.
A. The examination of any person pursuant to a civil investigative demand for oral testimony served under this article shall be taken before an officer authorized to administer oaths under the laws of this Commonwealth or of the place where the examination is held. The officer before whom the testimony is to be taken shall put the witness on oath and shall, personally or by someone acting under the direction of the officer and in the officer’s presence, record the testimony of the witness. The testimony shall be taken stenographically and shall be transcribed. When the testimony is fully transcribed, the officer before whom the testimony is taken shall promptly transmit a copy of the transcript of the testimony to the Attorney General. This section shall not preclude the taking of testimony by any means authorized by and in a manner consistent with the Rules of the Supreme Court of Virginia.
B. The investigator conducting the examination shall exclude from the place where the examination is held all persons except the person giving the testimony, the attorney for and any other representative of the person giving the testimony, the attorney for the Commonwealth, any person who may be agreed upon by the attorney for the Commonwealth and the person giving the testimony, the officer before whom the testimony is to be taken, and any court reporter taking such testimony.
C. The oral testimony of any person taken pursuant to a civil investigative demand served under this article shall be taken in the county or city within which such person resides, is found, or transacts business or in such other place as may be agreed upon by the investigator conducting the examination and such person.
D. When the testimony is fully transcribed, the investigator or the officer before whom the testimony is taken shall afford the witness, who may be accompanied by counsel, a reasonable opportunity to examine and read the transcript, unless such examination and reading are waived by the witness. Any changes in form or substance that the witness desires to make shall be entered and identified upon the transcript by the officer or the investigator, with a statement of the reasons given by the witness for making such changes. The transcript shall then be signed by the witness, unless the witness in writing waives the signing, is ill, cannot be found, or refuses to sign. If the transcript is not signed by the witness within thirty days after being afforded a reasonable opportunity to examine it, the officer or the investigator shall sign it and state on the record the fact of the waiver, illness, absence of the witness, or the refusal to sign, together with the reasons, if any, given therefor.
E. The officer before whom the testimony is taken shall certify on the transcript that the witness was sworn by the officer and that the transcript is a true record of the testimony given by the witness, and the officer or investigator shall promptly deliver the transcript, or send the transcript by registered or certified mail, to the Attorney General.
F. Upon payment of reasonable charges therefor, the investigator shall furnish a copy of the transcript to the witness only, except that the Attorney General may, for good cause, limit such witness to inspection of the official transcript of the witness’ testimony.
G. Any person compelled to appear for oral testimony under a civil investigative demand may be accompanied, represented, and advised by counsel. Counsel may advise such person, in confidence, with respect to any question asked of such person. Such person or counsel may object on the record to any question, in whole or in part, and shall briefly state for the record the reason for the objection. An objection may be made, received, and entered upon the record when it is claimed that such person is entitled to refuse to answer the question on the grounds of any constitutional or other legal right or privilege. Such person may not otherwise object to or refuse to answer any question, and may not directly or through counsel otherwise interrupt the oral examination. If such person refuses to answer any question, a petition may be filed in the circuit court for an order compelling such person to answer such question. If such person refuses to answer any question on the grounds of the privilege against self-incrimination, the testimony of such person may be compelled in accordance with applicable law.
H. Any person appearing for oral testimony under a civil investigative demand issued under this article shall be entitled to the same fees and allowances paid to witnesses in the circuit court.
§ 8.01-216.17. Civil investigative demands; custodian of documents; answers.
A. The Attorney General shall serve as custodian of documentary material, answers to interrogatories, and transcripts of oral testimony received under this article.
B. An investigator who receives any documentary material, answers to interrogatories, or transcripts of oral testimony under this section shall transmit them to the Attorney General. The Attorney General shall take physical possession of such material, answers, or transcripts and shall be responsible for the use made of them and for the return of documentary material.
C. The Attorney General may cause the preparation of such copies of documentary material, answers to interrogatories, or transcripts of oral testimony as may be required for official use by any investigator, or other officer or employee of the Attorney General or employee of the Department of State Police. Such material, answers, and transcripts may be used by any authorized investigator or other officer or employee in connection with the taking of oral testimony under this article.
D. Except as otherwise provided in this section, no documentary material, answers to interrogatories, or transcripts of oral testimony, or copies thereof, while in the possession of the Attorney General, shall be available for examination by any individual other than an investigator or other officer or employee of the Attorney General or employee of the Department of State Police authorized by the Attorney General. The prohibition on the availability of material, answers, or transcripts shall not apply if consent is given by the person who produced such material, answers, or transcripts, or, in the case of any product of discovery produced pursuant to an express demand for such material, consent is given by the person from whom the discovery was obtained. Nothing in this subsection is intended to prevent disclosure to the General Assembly, including any committee or subcommittee of the General Assembly, or to any other state agency for use by such agency in furtherance of its statutory responsibilities.
E. While in the possession of the Attorney General and under such reasonable terms and conditions as the Attorney General shall prescribe, (i) documentary material and answers to interrogatories shall be available for examination by the person who produced such material or answers, or by a representative of that person authorized by that person to examine such material and answers, and (ii) transcripts of oral testimony shall be available for examination by the person who produced such testimony or by a representative of that person authorized by that person to examine such transcripts.
F. Any attorney employed by the Office of the Attorney General designated to appear before any court, grand jury, or state agency in any case or proceeding may use any documentary material, answers to interrogatories, or transcripts of oral testimony in connection with any such case or proceeding as such attorney determines to be required. Upon the completion of any such case or proceeding, such attorney shall return to the custodian any such material, answers, or transcripts so delivered that have not passed into the control of the court, grand jury, or agency through introduction into the record of such case or proceeding.
G. If any documentary material has been produced by any person in the course of any investigation pursuant to a civil investigative demand under this article, and (i) any case or proceeding before the court or grand jury arising out of such investigation, or any proceeding before any state agency involving such material, has been completed, or (ii) no case or proceeding in which such material may be used has been commenced within a reasonable time after completion of the examination and analysis of all documentary material and other information assembled in the course of such investigation, the Attorney General shall, upon written request of the person who produced such material, return to such person any material, other than copies furnished to the investigator, or made for the Attorney General that has not passed into the control of any court, grand jury, or agency through introduction into the record of such case or proceeding.
§ 8.01-216.18. Civil investigative demands; judicial proceedings for noncompliance.
A. Whenever any person fails to comply with any civil investigative demand issued under this article, or whenever satisfactory copying or reproduction of any material requested in such demand cannot be done and such person refuses to surrender the material, the Attorney General may file in the appropriate circuit court for the county or city in which such person resides, is found, or transacts business, and serve upon such person a petition for a court order for the enforcement of the civil investigative demand.
B. Any person who has received a civil investigative demand issued under this article may file, in the circuit court of any county or city within which such person resides, is found, or transacts business, and serve upon the investigator identified in such demand a petition for an order of the court to modify or set aside the demand. In the case of a petition addressed to an express demand for any product of discovery, a petition to modify or set aside such demand may be brought only in the circuit court of the county or city in which the proceeding in which such discovery was obtained is or was last pending. Any petition under this section shall be filed (i) within twenty-one days after the date of service of the civil investigative demand, or at any time before the return date specified in the demand, whichever date is earlier, or (ii) within such longer period as may be prescribed in writing by any investigator identified in the demand.
C. The petition shall specify each ground upon which the petitioner relies in seeking relief, and may be based upon any failure of the demand to comply with the provisions of this article or upon any constitutional or other legal right or privilege of such person. During the pendency of the petition in the court, the court may stay, as it deems proper, the running of the time allowed for compliance with the demand, in whole or in part, except that the person filing the petition shall comply with any portions of the demand not sought to be modified or set aside.
D. In the case of any civil investigative demand issued under this article that is an express demand for any product of discovery, the person from whom such discovery was obtained may file, in the circuit court of the county or city in which the proceeding in which such discovery was obtained is or was last pending, and serve upon any investigator identified in the demand and upon the recipient of the demand a petition for a court order to modify or set aside those portions of the demand requiring production of any such product of discovery. Any petition under this subsection shall be filed (i) within twenty-one days after the date of service of the civil investigative demand or at any time before the return date specified in the demand, whichever date is earlier, or (ii) within such longer period as may be prescribed in writing by any investigator identified in the demand.
E. The petition shall specify each ground upon which the petitioner relies in seeking relief and may be based upon any failure of the demand from which relief is sought to comply with the provisions of this article, or upon any constitutional or other legal right or privilege of the petitioner. During the pendency of the petition, the court may stay, as it deems proper, compliance with the demand and the running of the time allowed for compliance with the demand.
F. At any time during which any custodian is in custody or control of any documentary material or answers to interrogatories produced, or transcripts of oral testimony given by any person in compliance with any civil investigative demand issued under this article, such person, and in the case of an express demand for any product of discovery, the person from whom such discovery was obtained, may file, in the circuit court of the county or city within which the office of such custodian is situated, and serve upon such custodian a petition for a court order to require the performance by the custodian of any duty imposed upon the custodian by this section. Whenever any petition is filed in any circuit court under this section, the court shall have jurisdiction to hear and determine the matter so presented, and to enter such order or orders as may be required to carry out the provisions of this section. Any final order so entered shall be subject to appeal in the same manner as appeals of other final orders in civil matters. Any disobedience of any final order entered under this section by any court shall be punished as contempt of the court.
G. Any documentary material, answers to written interrogatories, or oral testimony provided under any civil investigative demand issued under this article shall be exempt from disclosure under the Virginia Administrative Process Act (§ 2.2-4000 et seq.).
§ 8.01-216.19. Application of the Rules of the Supreme Court.
The Rules of the Supreme Court of Virginia shall apply to all proceedings under this article, except when those Rules are inconsistent with this article.
§ 8.01-217. How name of person may be changed.
A. Any person desiring to change his own name, or that of his child or ward, may apply therefor to the circuit court of the county or city in which the person whose name is to be changed resides, or if no place of abode exists, such person may apply to any circuit court which shall consider such application if it finds that good cause exists therefor under the circumstances alleged. Applications of probationers and incarcerated persons may be accepted if the court finds that good cause exists for such application. An incarcerated person may apply to the circuit court of the county or city in which such person is incarcerated. In case of a minor who has no living parent or guardian, the application may be made by his next friend. In case of a minor who has both parents living, the parent who does not join in the application shall be served with reasonable notice of the application pursuant to § 8.01-296 and, should such parent object to the change of name, a hearing shall be held to determine whether the change of name is in the best interest of the minor. It shall not be necessary to effect service upon any parent who files an answer to the application. If, after application is made on behalf of a minor and an ex parte hearing is held thereon, the court finds by clear and convincing evidence that such notice would present a serious threat to the health and safety of the applicant, the court may waive such notice.
B. Every application shall be under oath and shall include the place of residence of the applicant, the names of both parents, including the maiden name of his mother, the date and place of birth of the applicant, the applicant’s felony conviction record, if any, whether the applicant is presently incarcerated or a probationer with any court, and if the applicant has previously changed his name, his former name or names.
C. On any such application and hearing, if such be demanded, the court, shall, unless the evidence shows that the change of name is sought for a fraudulent purpose or would otherwise infringe upon the rights of others or, in a case involving a minor, that the change of name is not in the best interest of the minor, order a change of name. The order shall contain no identifying information other than the applicant’s former name or names, new name, and current address. The clerk of the court shall spread the order upon the current deed book in his office, index it in both the old and new names, and transmit a certified copy of the order and the application to the State Registrar of Vital Records and the Central Criminal Records Exchange. Transmittal of a copy of the order and the application to the State Registrar of Vital Records and the Central Criminal Records Exchange shall not be required of a person who changed his or her former name by reason of marriage and who makes application to resume a former name pursuant to § 20-121.4.
D. If the applicant shall show cause to believe that in the event his change of name should become a public record, a serious threat to the health or safety of the applicant or his immediate family would exist, the chief judge of the circuit court may waive the requirement that the application be under oath or the court may order the record sealed and direct the clerk not to spread and index any orders entered in the cause, and shall not transmit a certified copy to the State Registrar of Vital Records or the Central Criminal Records Exchange. Upon receipt of such order by the State Registrar of Vital Records, for a person born in this Commonwealth, together with a proper request and payment of required fees, the Registrar shall issue certifications of the amended birth record which do not reveal the former name or names of the applicant unless so ordered by a court of competent jurisdiction. Such certifications shall not be marked “amended” and show the effective date as provided in § 32.1-272. Such order shall set forth the date and place of birth of the person whose name is changed, the full names of his parents, including the maiden name of the mother and, if such person has previously changed his name, his former name or names.
§ 8.01-218. Replevin abolished.
No action of replevin shall be hereafter brought.
§ 8.01-219. Effect of judgment in trover.
A judgment for the plaintiff in an action of trover shall not operate to transfer the title to the property converted unless and until such judgment has been satisfied.
§ 8.01-220. Action for alienation of affection, breach of promise, criminal conversation and seduction abolished.
A. Notwithstanding any other provision of law to the contrary, no civil action shall lie or be maintained in this Commonwealth for alienation of affection, breach of promise to marry, or criminal conversation upon which a cause of action arose or occurred on or after June 28, 1968.
B. No civil action for seduction shall lie or be maintained where the cause of action arose or accrued on or after July 1, 1974.
§ 8.01-220.1. Defense of interspousal immunity abolished as to certain causes of action arising on or after July 1, 1981.
The common-law defense of interspousal immunity in tort is abolished and shall not constitute a valid defense to any such cause of action arising on or after July 1, 1981.
§ 8.01-220.1:1. Civil immunity for officers, partners, members, managers, trustees and directors of certain tax exempt organizations.
A. Directors, partners, members, managers, trustees and officers of organizations exempt from income taxation under § 501(c) or § 528 of the Internal Revenue Code who serve without compensation shall be immune from civil liability for acts taken in their capacities as officers, partners, members, managers, trustees or directors of such organizations.
B. In any proceeding against a director, partner, member, manager, trustee or officer of an organization exempt from income taxation under § 501(c) or § 528 of the Internal Revenue Code who receives compensation, the damages assessed for acts taken in his capacity as an officer, partner, member, manager, trustee or director and arising out of a single transaction, occurrence or course of conduct shall not exceed the amount of compensation received by the officer, partner, member, manager, trustee or director during the 12 months immediately preceding the act or omission for which liability was imposed. As used herein “compensation” shall mean payment for services over and above per diem and expenses.
C. The liability of an officer, partner, member, manager, trustee or director shall not be limited as provided in this section if the officer, partner, member, manager, trustee or director engaged in willful misconduct or a knowing violation of the criminal law or if liability derives from the operation of a motor vehicle, or from the violation of a fiduciary obligation imposed during the period of declarant control by § 55-79.74.
D. The immunity provided by this section shall survive any termination, cancellation, or other discontinuance of the organization.
§ 8.01-220.1:2. Civil immunity for teachers under certain circumstances.
A. Any teacher employed by a local school board in the Commonwealth shall not be liable for any civil damages for any acts or omissions resulting from the supervision, care or discipline of students when such acts or omissions are within such teacher’s scope of employment and are taken in good faith in the course of supervision, care or discipline of students, unless such acts or omissions were the result of gross negligence or willful misconduct.
B. No school employee or school volunteer shall be liable for any civil damages arising from the prompt good faith reporting of alleged acts of bullying or crimes against others to the appropriate school official in compliance with specified procedures.
C. This section shall not be construed to limit, withdraw or overturn any defense or immunity already existing in statutory or common law or to affect any claim occurring prior to the effective date of this law, or to prohibit any person subject to bullying or a criminal act from seeking redress under any other provision of law.
§ 8.01-220.1:3. Immunity for members of church, synagogue or religious body.
No member of any church, synagogue or religious body shall be liable in tort or contract for the actions of any officer, employee, leader, or other member of such church, synagogue or religious body solely because of his membership in such church, synagogue or religious body. Nothing in this section shall prevent any person from being held liable for his own actions.
§ 8.01-220.1:4. Civil immunity for officers and directors of certain nonprofit organizations.
A. Directors and officers of any entity created to ensure the implementation in the Commonwealth of a national tobacco trust established to provide payments to tobacco growers and tobacco quota owners to ameliorate adverse economic consequences resulting from a national settlement of states’ claims against tobacco manufacturers shall be immune from civil liability for acts taken in their capacities as officers or directors of such entities.
B. The liability of an officer or director shall not be limited as provided in this section if the officer or director was grossly negligent or engaged in willful misconduct or a knowing violation of the criminal law.
§ 8.01-220.2. Spousal liability for medical care.
Each spouse shall be jointly and severally liable for all emergency medical care furnished to the other spouse by a physician licensed to practice medicine in the Commonwealth or by a hospital located in the Commonwealth, including all follow-up inpatient care provided during the initial emergency admission to any such hospital, which is furnished while the spouses are living together. For the purposes of this section, emergency medical care shall mean any care the physician or other health care professional deems necessary to preserve the patient’s life or health and which, if not rendered timely, can be reasonably anticipated to adversely affect the patient’s recovery or imperil his life or health.
§ 8.01-221. Damages from violation of statute, remedy therefor and penalty.
Any person injured by the violation of any statute may recover from the offender such damages as he may sustain by reason of the violation, even though a penalty or forfeiture for such violation be thereby imposed, unless such penalty or forfeiture be expressly mentioned to be in lieu of such damages. And the damages so sustained together with any penalty or forfeiture imposed for the violation of the statute may be recovered in a single action when the same person is entitled to both damages and penalty; but nothing herein contained shall affect the existing statutes of limitation applicable to the foregoing causes of action respectively.
§ 8.01-221.1. Unestablished business damages; lost profits.
Damages for lost profits of a new or unestablished business may be recoverable upon proper proof. A party shall not be deemed to have failed to prove lost profits because the new or unestablished business has no history of profits. Such damages for a new or unestablished business shall not be recoverable in wrongful death or personal injury actions other than actions for defamation.
Repealed by Acts 2007, c. 368, cl. 2.
§ 8.01-223. Lack of privity no defense in certain cases.
In cases not provided for in § 8.2-318 where recovery of damages for injury to person, including death, or to property resulting from negligence is sought, lack of privity between the parties shall be no defense.
§ 8.01-223.1. Use of constitutional rights.
In any civil action the exercise by a party of any constitutional protection shall not be used against him.
§ 8.01-223.2. Immunity of persons at public hearing.
A person shall be immune from civil liability for a violation of § 18.2-499 or a claim of tortious interference with an existing contract or a business or contractual expectancy based solely on statements made by that person at a public hearing before the governing body of any locality or other political subdivision, or the boards, commissions, agencies and authorities thereof, and other governing bodies of any local governmental entity concerning matters properly before such body. The immunity provided by this section shall not apply to any statements made with knowledge that they are false, or reckless disregard for whether they are false.
§ 8.01-224. Defense of governmental immunity not available to certain persons in actions for damages from blasting, etc.
The defense of governmental immunity shall not be available to any person, firm or corporation in any cause of action for damages to the property of others proximately or directly resulting from blasting or the use of explosives in the performance of work for or on behalf of any governmental agency.
§ 8.01-225. Persons rendering emergency care, obstetrical services exempt from liability.
A. Any person who:
1. In good faith, renders emergency care or assistance, without compensation, to any ill or injured person (i) at the scene of an accident, fire, or any life-threatening emergency; (ii) at a location for screening or stabilization of an emergency medical condition arising from an accident, fire, or any life-threatening emergency; or (iii) en route to any hospital, medical clinic or doctor’s office, shall not be liable for any civil damages for acts or omissions resulting from the rendering of such care or assistance.
2. In the absence of gross negligence, renders emergency obstetrical care or assistance to a female in active labor who has not previously been cared for in connection with the pregnancy by such person or by another professionally associated with such person and whose medical records are not reasonably available to such person shall not be liable for any civil damages for acts or omissions resulting from the rendering of such emergency care or assistance. The immunity herein granted shall apply only to the emergency medical care provided.
3. In good faith and without compensation, including any emergency medical services technician certified by the Board of Health, administers epinephrine in an emergency to an individual shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment if such person has reason to believe that the individual receiving the injection is suffering or is about to suffer a life-threatening anaphylactic reaction.
4. Provides assistance upon request of any police agency, fire department, rescue or emergency squad, or any governmental agency in the event of an accident or other emergency involving the use, handling, transportation, transmission or storage of liquefied petroleum gas, liquefied natural gas, hazardous material or hazardous waste as defined in § 10.1-1400 or regulations of the Virginia Waste Management Board shall not be liable for any civil damages resulting from any act of commission or omission on his part in the course of his rendering such assistance in good faith.
5. Is an emergency medical care attendant or technician possessing a valid certificate issued by authority of the State Board of Health who in good faith renders emergency care or assistance whether in person or by telephone or other means of communication, without compensation, to any injured or ill person, whether at the scene of an accident, fire or any other place, or while transporting such injured or ill person to, from or between any hospital, medical facility, medical clinic, doctor’s office or other similar or related medical facility, shall not be liable for any civil damages for acts or omissions resulting from the rendering of such emergency care, treatment or assistance, including but in no way limited to acts or omissions which involve violations of State Department of Health regulations or any other state regulations in the rendering of such emergency care or assistance.
6. In good faith and without compensation, renders or administers emergency cardiopulmonary resuscitation, cardiac defibrillation, including, but not limited to, the use of an automated external defibrillator, or other emergency life-sustaining or resuscitative treatments or procedures which have been approved by the State Board of Health to any sick or injured person, whether at the scene of a fire, an accident or any other place, or while transporting such person to or from any hospital, clinic, doctor’s office or other medical facility, shall be deemed qualified to administer such emergency treatments and procedures and shall not be liable for acts or omissions resulting from the rendering of such emergency resuscitative treatments or procedures.
7. Operates an automated external defibrillator at the scene of an emergency, trains individuals to be operators of automated external defibrillators, or orders automated external defibrillators, shall be immune from civil liability for any personal injury that results from any act or omission in the use of an automated external defibrillator in an emergency where the person performing the defibrillation acts as an ordinary, reasonably prudent person would have acted under the same or similar circumstances, unless such personal injury results from gross negligence or willful or wanton misconduct of the person rendering such emergency care.
8. Is a volunteer in good standing and certified to render emergency care by the National Ski Patrol System, Inc., who, in good faith and without compensation, renders emergency care or assistance to any injured or ill person, whether at the scene of a ski resort rescue, outdoor emergency rescue or any other place or while transporting such injured or ill person to a place accessible for transfer to any available emergency medical system unit, or any resort owner voluntarily providing a ski patroller employed by him to engage in rescue or recovery work at a resort not owned or operated by him, shall not be liable for any civil damages for acts or omissions resulting from the rendering of such emergency care, treatment or assistance, including but not limited to acts or omissions which involve violations of any state regulation or any standard of the National Ski Patrol System, Inc., in the rendering of such emergency care or assistance, unless such act or omission was the result of gross negligence or willful misconduct.
9. Is an employee of a school board, authorized by a prescriber and trained in the administration of insulin and glucagon, who, upon the written request of the parents as defined in § 22.1-1, assists with the administration of insulin or administers glucagon to a student diagnosed as having diabetes who requires insulin injections during the school day or for whom glucagon has been prescribed for the emergency treatment of hypoglycemia shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such treatment if the insulin is administered according to the child’s medication schedule or such employee has reason to believe that the individual receiving the glucagon is suffering or is about to suffer life-threatening hypoglycemia. Whenever any employee of a school board is covered by the immunity granted herein, the school board employing him shall not be liable for any civil damages for ordinary negligence in acts or omissions resulting from the rendering of such insulin or glucagon treatment.
B. Any licensed physician serving without compensation as the operational medical director for a licensed emergency medical services agency in this Commonwealth shall not be liable for any civil damages for any act or omission resulting from the rendering of emergency medical services in good faith by the personnel of such licensed agency unless such act or omission was the result of such physician’s gross negligence or willful misconduct.
Any person serving without compensation as a dispatcher for any licensed public or nonprofit emergency services agency in this Commonwealth shall not be liable for any civil damages for any act or omission resulting from the rendering of emergency services in good faith by the personnel of such licensed agency unless such act or omission was the result of such dispatcher’s gross negligence or willful misconduct.
Any individual, certified by the State Office of Emergency Medical Services as an emergency medical services instructor and pursuant to a written agreement with such office, who, in good faith and in the performance of his duties, provides instruction to persons for certification or recertification as a certified basic life support or advanced life support emergency medical services technician shall not be liable for any civil damages for acts or omissions on his part directly relating to his activities on behalf of such office unless such act or omission was the result of such emergency medical services instructor’s gross negligence or willful misconduct.
Any licensed physician serving without compensation as a medical advisor to an E-911 system in this Commonwealth shall not be liable for any civil damages for any act or omission resulting from rendering medical advice in good faith to establish protocols to be used by the personnel of the E-911 service, as defined in § 58.1-1730, when answering emergency calls unless such act or omission was the result of such physician’s gross negligence or willful misconduct.
Any licensed physician who directs the provision of emergency medical services, as authorized by the State Board of Health, through a communications device shall not be liable for any civil damages for any act or omission resulting from the rendering of such emergency medical services unless such act or omission was the result of such physician’s gross negligence or willful misconduct.
Any licensed physician serving without compensation as a supervisor of an automated external defibrillator in this Commonwealth shall not be liable for any civil damages for any act or omission resulting from rendering medical advice in good faith to the owner of the automated external defibrillator relating to personnel training, local emergency medical services coordination, protocol approval, automated external defibrillator deployment strategies, and equipment maintenance plans and records unless such act or omission was the result of such physician’s gross negligence or willful misconduct.
C. Any communications services provider, as defined in § 58.1-647, including mobile service, and any provider of Voice-over-Internet Protocol service, in this Commonwealth shall not be liable for any civil damages for any act or omission resulting from rendering such service with or without charge related to emergency calls unless such act or omission was the result of such service provider’s gross negligence or willful misconduct.
Any volunteer engaging in rescue or recovery work at a mine or any mine operator voluntarily providing personnel to engage in rescue or recovery work at a mine not owned or operated by such operator, shall not be liable for civil damages for acts or omissions resulting from the rendering of such rescue or recovery work in good faith unless such act or omission was the result of gross negligence or willful misconduct. For purposes of this subsection, the term “Voice-over-Internet Protocol service” or “VoIP service” means any Internet protocol-enabled services utilizing a broadband connection, actually originating or terminating in Internet Protocol from either or both ends of a channel of communication offering real time, multidirectional voice functionality, including, but not limited to, services similar to traditional telephone service.
D. Nothing contained in this section shall be construed to provide immunity from liability arising out of the operation of a motor vehicle.
F. For the purposes of this section, the term “compensation” shall not be construed to include (i) the salaries of police, fire or other public officials or personnel who render such emergency assistance, (ii) the salaries or wages of employees of a coal producer engaging in emergency medical technician service or first aid service pursuant to the provisions of § 45.1-161.38, 45.1-161.101, 45.1-161.199 or 45.1-161.263, (iii) complimentary lift tickets, food, lodging or other gifts provided as a gratuity to volunteer members of the National Ski Patrol System, Inc., by any resort, group or agency, (iv) the salary of any person who (a) owns an automated external defibrillator for the use at the scene of an emergency, (b) trains individuals, in courses approved by the Board of Health, to operate automated external defibrillators at the scene of emergencies, (c) orders automated external defibrillators for use at the scene of emergencies, or (d) operates an automated external defibrillator at the scene of an emergency, or (v) expenses reimbursed to any person providing care or assistance pursuant to this section.
For the purposes of this section, an emergency medical care attendant or technician shall be deemed to include a person licensed or certified as such or its equivalent by any other state when he is performing services which he is licensed or certified to perform by such other state in caring for a patient in transit in this Commonwealth, which care originated in such other state.
Further, the public shall be urged to receive training on how to use cardiopulmonary resuscitation (CPR) and an automated external defibrillator (AED) in order to acquire the skills and confidence to respond to emergencies using both CPR and an AED.
§ 8.01-225.01. Certain immunity for health care providers during disasters under specific circumstances.
A. In the absence of gross negligence or willful misconduct, any health care provider who responds to a disaster by delivering health care to persons injured in such disaster shall be immune from civil liability for any injury or wrongful death arising from abandonment by such health care provider of any person to whom such health care provider owes a duty to provide health care when (i) a state or local emergency has been or is subsequently declared; and (ii) the provider was unable to provide the requisite health care to the person to whom he owed such duty of care as a result of the provider’s voluntary or mandatory response to the relevant disaster.
B. In the absence of gross negligence or willful misconduct, any hospital or other entity credentialing health care providers to deliver health care in response to a disaster shall be immune from civil liability for any cause of action arising out of such credentialing or granting of practice privileges if (i) a state or local emergency has been or is subsequently declared; and (ii) the hospital has followed procedures for such credentialing and granting of practice privileges that are consistent with the Joint Commission on Accreditation of Healthcare Organizations’ standards for granting emergency practice privileges.
C. For the purposes of this section:
“Disaster” means any “disaster,” “emergency,” or “major disaster” as those terms are used and defined in § 44-146.16; and
“Health care provider” means those professions defined as such in § 8.01-581.1.
D. The immunity provided by this section shall be in addition to, and shall not be in lieu of, any immunities provided in other state or federal law, including, but not limited to, §§ 8.01-225 and 44-146.23.
§ 8.01-225.02. Certain liability protection for health care providers during disasters.
A. In the absence of gross negligence or willful misconduct, any health care provider who responds to a disaster shall not be liable for any injury or wrongful death of any person arising from the delivery or withholding of health care when (i) a state or local emergency has been or is subsequently declared in response to such disaster, and (ii) the emergency and subsequent conditions caused a lack of resources, attributable to the disaster, rendering the health care provider unable to provide the level or manner of care that otherwise would have been required in the absence of the emergency and which resulted in the injury or wrongful death at issue.
B. For purposes of this section:
“Disaster” means any “disaster,” “emergency,” or “major disaster” as those terms are used and defined in § 44-146.16; and
“Health care provider” has the same definition as provided in § 8.01-581.1..
§ 8.01-225.1. Immunity for team physicians.
Any physician, surgeon or chiropractor licensed to practice by the Board of Medicine in the Commonwealth who, in the absence of gross negligence or willful misconduct, renders emergency medical care or emergency treatment to a participant in an athletic event sponsored by a public, private or religious elementary, middle or high school while acting without compensation as a team physician, shall not be liable for civil damages resulting from any act or omission related to such care or treatment.
§ 8.01-225.2. Immunity for those rendering emergency care to animals.
Any person, including a person licensed to practice veterinary medicine, who in good faith and without compensation renders emergency care or treatment to an injured animal at the scene of an emergency or accident shall not be liable for any injuries to such animals resulting from the rendering of such care or treatment.
§ 8.01-226. Duty of care to law-enforcement officers and firefighters, etc.
An owner or occupant of real property containing premises normally open to the public shall, with respect to such premises, owe to firefighters, Department of Emergency Management hazardous materials officers, nonfirefighter regional hazardous materials emergency response team members, and law-enforcement officers who in the performance of their duties come upon that portion of the premises normally open to the public the duty to maintain the same in a reasonably safe condition or to warn of dangers thereon of which he knows or has reason to know, whether or not such premises are at the time open to the public.
An owner or occupant of real property containing premises not normally open to the public shall, with respect to such premises, owe the same duty to firefighters, Department of Emergency Management hazardous materials officers, nonfirefighter regional hazardous materials emergency response team members, and law-enforcement officers who he knows or has reason to know are upon, about to come upon or imminently likely to come upon that portion of the premises not normally open to the public.
While otherwise engaged in the performance of his duties, a law-enforcement officer, Department of Emergency Management hazardous materials officer, nonfirefighter regional hazardous materials emergency response team member, or firefighter shall be owed a duty of ordinary care.
For purposes of this section, the term “law-enforcement officers” shall mean only police officers, sheriffs and deputy sheriffs and the term “firefighter” includes (i) emergency medical personnel and (ii) special forest wardens designated pursuant to § 10.1-1135.
§ 8.01-226.1. Civil immunity when participating in Lawyers Helping Lawyers.
Any person shall be immune from civil liability for, or resulting from, any act, decision, omission, communication, finding, opinion or conclusion made or conducted in connection with the investigation, intervention, counseling or monitoring of a lawyer, judge, paralegal, or other member of the legal profession by “Lawyers Helping Lawyers,” a Virginia nonprofit, nonstock corporation dedicated to assisting members of the legal profession engaged in substance abuse or suffering from mental illness, if such act, decision, omission, communication, finding, opinion or conclusion is made or conducted in good faith and without malicious intent.
Nothing in this section shall be construed to grant immunity to any claim by a client against a person licensed to practice law.
§ 8.01-226.2. Civil immunity for licensed professional engineers and licensed architects participating in rescue or relief assistance.
Any licensed professional engineer or licensed architect who, in good faith and without charge or compensation, utilizes his professional skills in providing rescue or relief assistance at the scene of or in connection with a natural or man-made disaster or other life-threatening emergency, shall not be liable for any civil damages for acts or omissions on his part resulting from the rendering of such assistance or professional services in the absence of gross negligence or willful misconduct.
§ 8.01-226.3. Civil immunity for officers, directors and members of certain crime information-gathering organizations.
Any officer, director or member of a nonprofit organization which, pursuant to a written agreement with a local government or a law-enforcement agency, regularly assists law-enforcement agencies by (i) publicly soliciting information from anonymous informants concerning criminal activity; (ii) gathering such information from informants; (iii) offering and paying rewards to informants for such information; and (iv) communicating such information to law-enforcement agencies, shall not be liable for any civil damages for acts or omissions on his part directly relating to his activities on behalf of such organization but only in the absence of gross negligence or willful misconduct.
§ 8.01-226.4. Civil immunity for hospice volunteers.
Any individual who, in good faith, without compensation, and in the absence of gross negligence or willful misconduct, renders care to a terminally ill patient pursuant to a hospice program whose sole purpose is to provide care and treatment to terminally ill patients and whose services are equally available to all members of the community, shall not be liable for any civil damages for acts or omissions resulting from the rendering of such care.
§ 8.01-226.5. Immunity for installers and inspectors of child restraint devices.
Any person who has successfully met the minimum required training standards for installation of child restraint devices established by the National Highway Traffic Safety Administration of the United States Department of Transportation, who in good faith and without compensation installs, or inspects the installation of, a child restraint device shall not be liable for any damages resulting from an act or omission related to such installation or inspection, unless such act or omission was the result of the person’s gross negligence or willful misconduct.
§ 8.01-226.5:1. Civil immunity for school board employees supervising self-administration of certain medication.
A. Any school principal or other employee of a school board who, in good faith, without compensation, and in the absence of gross negligence or willful misconduct, supervises the self-administration of inhaled asthma medications or auto-injectable epinephrine by a student, pursuant to § 22.1-274.2, shall not be liable for any civil damages for acts or omissions resulting from the supervision of self-administration of inhaled asthma medications or auto-injectable epinephrine by such student. Further, no such principal or school board employee shall be liable for any civil damages for any injuries or deaths resulting from the misuse of such auto-injectable epinephrine.
B. For the purposes of this section, “employee” shall include any person employed by a local health department who is assigned to a public school pursuant to an agreement between a local health department and a school board.
§ 8.01-226.5:2. Immunity of hospital or rescue squad personnel for the acceptance of certain infants.
Any personnel of a hospital or rescue squad receiving a child under the circumstances described in subsection B of § 18.2-371, subdivision B 2 of § 18.2-371.1 or subsection B of § 40.1-103 shall be immune from civil liability or criminal prosecution for injury or other damage to the child unless such injury or other damage is the result of gross negligence or willful misconduct by such personnel.
Repealed by Acts 2007, c. 250, cl. 2.
§ 8.01-226.7. Owner and agent compliance with residential lead-based paint notification; maintenance immunity.
A. As used in this section, the following definitions apply:
“Agent” means any party who enters into a contract with a seller or lessor, including any party who enters into a contract with a representative of the seller or lessor, for the purpose of selling or leasing a residential dwelling. This term includes all persons licensed under Chapter 21 (§ 54.1-2100 et seq.) of Title 54.1. This term does not apply to purchasers or any purchaser’s representative who receives compensation from the purchaser.
“Lead-based paint” means paint or other surface coatings that contain lead equal to or in excess of 1.0 milligram per square centimeter or 0.5 percent by weight.
“Lead-based paint hazard” means any condition that causes exposure to lead from lead-contaminated dust, lead-contaminated soil, or lead-contaminated paint that is deteriorated or present in accessible surfaces, friction surfaces, or impact surfaces that would result in adverse human health effects as established by the appropriate federal or state agency.
“Lead-based paint maintenance” means ensuring that the painted surfaces are maintained in accordance with the provisions of the International Property Maintenance Code adopted as part of the Uniform Statewide Building Code.
“Residential dwelling” means a structure or part of a structure that is used as a home or residence by one or more persons who maintain a household, whether single family or multifamily.
B. Any agent who has complied with the requirements of the United States Residential Lead-Based Paint Hazard Reduction Act of 1992 (42 U.S.C. § 4851 et seq.) shall not be liable for civil damages in any personal injury or wrongful death action for lead poisoning arising from the condition of a residential dwelling, provided that before the purchaser signs any contract to purchase the residential dwelling or the tenant signs any lease for an initial term to rent the residential dwelling:
1. An EPA-approved lead hazard information pamphlet was provided to the purchaser or lessee;
2. The agent disclosed to the lessee the presence of any known lead-based paint and/or lead-based paint hazards and any additional information or reports about which the agent had actual knowledge concerning the known lead-based paint or lead-based paint hazards;
3. The purchaser or tenant signed a written statement acknowledging the disclosure and receipt of the literature;
4. If the agent is a public housing authority, it has complied with all applicable federal laws and regulations. Nothing in this subdivision shall be construed to require compliance with the federal laws and regulations that are applicable to federal housing authorities by owners or agents who are not a public housing authority; and
5. The disclosure requirements in subsection B shall continue during the term of the tenancy for any new information in the possession of the agent or about which the agent has actual knowledge concerning the presence of lead-based paint or lead-based paint hazards. The agent shall make a written disclosure of any new information and provide the tenant with a copy of a summary thereof, advising the tenant that the full package of information and any report is available for inspection and copying if requested by the tenant.
However, if the agent is responsible for lead-based paint maintenance on the residential dwelling, the agent shall not be entitled to immunity unless the agent has also met the requirements of subsection C of this section. For purposes of subsection B, an agent is responsible for lead-based paint maintenance if the agent is a party to a written agreement that requires the agent to be responsible for the maintenance of the painted surfaces in accordance with the International Property Maintenance Code adopted as part of the Uniform Statewide Building Code.
C. An owner of a residential dwelling, or agent responsible for the lead-based paint maintenance of a residential dwelling, who has complied with the requirements of the United States Residential Lead-Based Paint Hazard Reduction Act of 1992 (42 U.S.C. § 4851 et seq.) shall not be liable for civil damages in a personal injury or wrongful death action for lead poisoning arising from the condition of the residential dwelling, provided that before the purchaser signs any contract to purchase the residential dwelling, or the tenant signs any lease for an initial term to rent the residential dwelling:
1. An EPA-approved lead hazard information pamphlet was provided to the purchaser or lessee;
2. The owner or agent responsible for the lead-based paint maintenance of a residential dwelling disclosed to the lessee the presence of any known lead-based paint and/or lead-based paint hazards and any additional information or reports about which the owner or such agent had of their own actual knowledge concerning the known lead-based paint or lead-based paint hazards;
3. The purchaser or tenant signed a written statement acknowledging the disclosure and receipt of the literature;
4. With regards to lead-based paint and lead-based paint hazards, the painted surfaces of the residential dwelling were maintained in compliance with the International Property Maintenance Code of the Uniform Statewide Building Code; and
5. The disclosure requirements in subsection C shall continue during the term of the tenancy for any new information in the possession of the owner or about which the owner has actual knowledge concerning the presence of lead-based paint or lead-based paint hazards. Further, the disclosure requirements in subsection C shall continue during the term of the tenancy for any new information in the possession of such agent or about which such agent has actual knowledge concerning the presence of lead-based paint or lead-based paint hazards. The agent shall make a written disclosure of any new information and provide the tenant with a copy of a summary thereof, advising the tenant that the full package of information and any report is available for inspection and copying if requested by the tenant.
D. An owner or agent claiming immunity under this section may assert such immunity in responsive pleadings and request a hearing, after discovery on issues related to immunity, before the court to determine entitlement to such immunity prior to further proceedings in the case.
§ 8.01-226.8. Civil immunity for public officials and private volunteers participating in certain programs for probationers.
Probation officers; court personnel; county, city and town personnel; any other public officials; and private volunteers who participate in a program where persons on probation or community service are ordered as a condition of probation or community service to pick up litter along a section of public roadway or waterway, to perform recycling duties at landfills, garbage transfer sites, and other waste disposal systems, to mow rights-of-way or to perform other landscaping maintenance tasks shall not be liable for any civil damages to a probationer or person on community service, or the property of such person, for acts or omissions resulting from such participation, unless such act or omission is the result of willful misconduct. The provisions of this section shall not be interpreted to grant any immunity to a driver transporting the persons on probation or community service or a motorist who, by his negligence, may injure such probationer or person on community service.
§ 8.01-226.9. Exemption from civil liability in connection with arrest or detention of person suspected of shoplifting.
A merchant, agent or employee of the merchant, who causes the arrest or detention of any person pursuant to the provisions of §§ 18.2-95, 18.2-96 or § 18.2-103, shall not be held civilly liable for unlawful detention, if such detention does not exceed one hour, slander, malicious prosecution, false imprisonment, false arrest, or assault and battery of the person so arrested or detained, whether such arrest or detention takes place on the premises of the merchant, or after close pursuit from such premises by such merchant, his agent or employee, provided that, in causing the arrest or detention of such person, the merchant, agent or employee of the merchant, had at the time of such arrest or detention probable cause to believe that the person had shoplifted or committed willful concealment of goods or merchandise. The activation of an electronic article surveillance device as a result of a person exiting the premises or an area within the premises of a merchant where an electronic article surveillance device is located shall constitute probable cause for the detention of such person by such merchant, his agent or employee, provided such person is detained only in a reasonable manner and only for such time as is necessary for an inquiry into the circumstances surrounding the activation of the device, and provided that clear and visible notice is posted at each exit and location within the premises where such a device is located indicating the presence of an antishoplifting or inventory control device. For purposes of this section, “electronic article surveillance device” means an electronic device designed and operated for the purpose of detecting the removal from the premises, or a protected area within such premises, of specially marked or tagged merchandise.
§ 8.01-226.10. Civil immunity for causing the arrest of a person for a bad check.
If payment of any check, draft, or order for the payment of money is refused by the financial institution, trust company or other depository upon which such instrument is drawn, and the person who drew or uttered such instrument is arrested or prosecuted under the provisions of § 18.2-181 or § 18.2-182, for failure or refusal to pay such instrument, the one who arrested or caused such person to be arrested and prosecuted, or either, shall be conclusively deemed to have acted with reasonable or probable cause in any suit for damages that may be brought by the person who drew or uttered such instrument, if the one who arrested or caused such person to be arrested and prosecuted, or either, shall have, before doing so, presented or caused such instrument to be presented to the depository on which it was drawn where it was refused, and then waited five days after notice, as provided in § 18.2-183, without the amount due under the provisions of such instrument being paid.
§ 8.01-226.11. Civil immunity for operation of victim notification program.
The Virginia Sheriffs’ Association and the Virginia Community Policing Institute, and the directors, managers, members, officers and employees of such entities shall be immune from civil liability for their acts or omissions relating to the establishment and operation of an automated victim notification system unless such act or omission was the result of gross negligence or willful misconduct.
§ 8.01-226.12. Duty of landlord and managing agent with respect to visible mold.
A. As used in this section, the following definitions apply:
“Authorized occupant” means a person entitled to occupy a dwelling unit with the consent of the landlord, but who has not signed the rental agreement and therefore does not have the rights and obligations as a tenant under the rental agreement.
“Dwelling unit” means a structure or part of a structure that is used as a home or residence by one or more persons who maintain a household, whether single family or multifamily, including, but not limited to, a manufactured home.
“Guest or invitee” means a person, other than the tenant or person authorized by the landlord to occupy the dwelling unit, who has the permission of the tenant to visit but not to occupy the premises.
“Interior of the dwelling unit” means the inside of the dwelling unit, consisting of interior walls, floor, and ceiling that enclose the dwelling unit as conditioned space from the outside air.
“Landlord” means the owner or lessor of the dwelling unit or the building of which such residential dwelling unit is a part. “Landlord” also includes a managing agent of the premises who fails to disclose the name of such owner, lessor, or sublessor. Such managing agent shall be subject to the provisions of § 16.1-88.03.
“Managing agent” means a person authorized by the landlord to act on behalf of the landlord under an agreement.
“Mold remediation in accordance with professional standards” means mold remediation of that portion of the dwelling unit or premises affected by mold, or any personal property of the tenant affected by mold, performed consistent with guidance documents published by the United States Environmental Protection Agency, the United States Department of Housing and Urban Development, the American Conference of Governmental Industrial Hygienists (the Bioaerosols Manual), Standard Reference Guides of the Institute of Inspection, Cleaning and Restoration for Water Damage Restoration and Professional Mold Remediation, or any protocol for mold remediation prepared by an industrial hygienist consistent with said guidance documents.
“Notice” means notice given in writing by either regular mail or hand delivery, with sender retaining sufficient proof of having given such notice, which may be either a United States postal certificate of mailing or a certificate of service confirming such mailing prepared by the sender. However, a person shall be deemed to have notice of a fact if he has actual knowledge of it, or he received a verbal notice of it. A person “notifies” or “gives” a notice or notification to another by taking steps reasonably calculated to inform another person whether or not the other person actually comes to know of it. If a notice given is not in writing, the person giving the notice has the burden of proof to show that the notice was given to the recipient of the notice.
“Readily accessible” means areas within the interior of the dwelling unit available for observation at the time of the move-in inspection that do not require removal of materials, personal property, equipment, or similar items.
“Tenant” means a person entitled under a rental agreement to occupy a dwelling unit to the exclusion of others. Tenant shall not include (i) an authorized occupant, (ii) a guest or invitee, or (iii) any person who guarantees or cosigns the payment of the financial obligations of a rental agreement but has no right to occupy a dwelling unit.
“Visible evidence of mold” means the existence of mold in the residential dwelling unit that is visible to the naked eye of the landlord or tenant at the time of the move-in inspection.
Any term not expressly defined herein shall have the same meaning as those defined in § 55-248.4.
B. Neither the landlord nor the managing agent shall be liable for civil damages in any personal injury or wrongful death action brought by a tenant, authorized occupant, or guest or invitee for exposure to mold arising from the condition within the interior of a dwelling unit, or for any property damage claims arising out of the landlord-tenant relationship, if the mold condition is caused solely by the negligence of the tenant.
C. A managing agent with no maintenance responsibilities shall not be liable for civil damages in any personal injury or wrongful death action brought by the tenant, authorized occupant, or guest or invitee for exposure to mold, or for any property damage claims arising out of the residential landlord-tenant relationship, unless the managing agent fails to disclose the existence of a mold condition of which the managing agent has actual knowledge to the landlord and any prospective or actual tenants.
D. If the written move-in inspection report authorized under Chapter 13 (§ 55-217 et seq.) or 13.2 (§ 55-248.2 et seq.) of Title 55 reflects that there is no visible evidence of mold in areas readily accessible within the interior of the dwelling unit, and the tenant does not object thereto in writing within five days after receiving the report, there shall be a rebuttable presumption that no mold existed at the time of the move-in inspection.
E. If visible evidence of mold occurs within the dwelling unit, the landlord or managing agent with the maintenance responsibilities shall, exercising ordinary care, perform mold remediation in accordance with professional standards.
F. The landlord or managing agent with maintenance responsibilities shall comply with any other applicable provisions of law.
8.01-227. Remedy by motion on certain bonds given or taken by officers; notice.
The court in which any bond given or taken by an officer is required to be returned, filed or recorded, may, on motion of any person protected by such bond, give judgment in favor of such person for such amount as he would be entitled by virtue of the bond to recover in an action at law. Any such motion shall be made after reasonable notice, not less than ten days, to the obligors on the bond. Service may be in any manner sufficient to support a judgment in personam.
§ 8.01-25. Survival of causes of action.