In Virginia, the statute of limitation for a fraud is two years from the time when a reasonable person should have discovered it. But when exactly the statute begins to run depends on whether there were multiple occurrences.
“A cause of action for breach of a contract or duty accrues on the date of breach. Va. Code Ann. §8.01-230. Virginia recognizes that multiple breaches or occurrences can give rise to separate causes of action.” Park v. Alcon Surgical, Inc., 1993 U.S. App. LEXIS 8419, * 9 (4th Cir. 1993).
“Adopting [Plaintiff’s] contention,” the Virginia Supreme Court observed, “the trial court ruled that ‘each [tortious] discharge was a separate actionable event’ for which [Plaintiff] was entitled to seek recovery ‘during the 5 years preceding the filing of suit’. We agree.” Hampton Roads Sanitation Dist. v. McDonnell, 234 Va. 235, 239 (1987)(repeated trespass). “If the wrongful act is of a permanent nature and one that produces all the damage which can ever result from it, then the entire damages must be recovered in one action, and the statute of limitations begins to run from the date of the wrongful act. Conversely, when wrongful acts are not continuous but occur only at intervals, each occurrence inflicts a new injury and gives rise to a new and separate cause of action. In the latter situation, a plaintiff’s right of recovery . . . is limited by the statute of the damages sustained during the five years preceding the institution of the suit.” Id. (emphasis added)( brackets omitted).
The Virginia Supreme Court recently embraced Hampton Roads in Am. Physical Therapy Ass’n v. Fed’n of State Bds. of Physical Therapy [“APTA”], 271 Va. 481, 484-485 (2006). In reversing and remanding a trial court that incorrectly had applied a single unitary statute of limitation period to discrete occurrences, the Virginia Supreme Court in APTA reiterated “if the wrongful acts are not continuous and ‘occur only at intervals, each occurrence inflicts a new injury and gives rise to a new and separate cause of action’.” Id. at 484.
“Since the statute of limitations is an affirmative defense, [Defendant] has the burden of proving facts that bar [Plaintiff’s] claim.” Park, supra, 1993 U.S. App. LEXIS 8419, * 11. When there is conflict over when a plaintiff should have discovered that the defendant committed fraud, the defensive pleading must be denied. See, Bd. of Dirs. of the Lessner Pointe Condominium on the Chesapeake Bay Ass’n, Inc. v. Harbour Point Bldg. Corp., 2002 Va. Cir. LEXIS 422, * 27-28 (Virginia Beach Jun. 18, 2002).
