Virginia: Pleas in Bar – a Lawyer’s Preemption

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On December 16, 2009, Defendant in the brain injury case of Gagnon v. Burns, No. CL08-572 in Gloucester, Virginia, lost the issue of sovereign immunity on its Plea in Bar. The trial judge ruled his findings of “ministerial act” and “simple negligence” were preemptive, not subject to relitgation before a jury; so Defendant has set reconsideration for hearing on January 14, 2010.

In Stanardsville Vol. Fire Co. v. Berry, 229 Va. 578, 587(1985), the Virginia Supreme Court emphasized than an evidentiary hearing on Plea could not be aborted mid-stream and that its finding is “binding and conclusive” on the issue submitted. “In the case of an issue on a plea in equity, not only does either party have the right to a jury trial, but the jury may not be discharged before verdict and its verdict, when returned, is as binding and conclusive upon the factual issue submitted to it as is a jury verdict in an action at law.’ Although Stanardsville focuses on a jury sitting as trier of fact on a Plea, where as in the Gagnon brain injury case the parties elect to have the judge sit as the trier of fact, the judge’s verdict and findings likewise are equally mandated, binding and conclusive.

Cooper Indus., Inc. v. Melendez, 260 Va. 578, 594 (2000) reaffirmed that a “plea in bar is a defensive pleading that reduces the litigation to a single issue,” the findings on which are preemptive for the litigation. In Cooper, defendants interposed a Plea in Bar on statute of repose, the trial court tried the same ore tenus and found plaintiff was not time-barred, id. at 581; which finding was not subject to relitigation before the jury subsequently. Id. at 594-595. “When the trial court hears the evidence ore tenus, its findings are entitled to the weight accorded a jury verdict . . . .” Id. at 595.

“Pleas in bar are also designated peremptory pleas ….”M.J. Pleading §45 at 364 (emphasis added). “A plea in bar is one to the substantial merits of the case….” Id. at 363.

“A plea of sovereign immunity presents distinct issues of fact that, if proved, create a bar to a parties’ alleged right of recovery.” Gambrell v. City of Norfolk, 267 Va. 353, 357 (2004). Under the fourth prong of Virginia’s test for sovereign immunity, the trier is required to make findings whether the Defendant’s act in question was one of “gross negligence” or “simple negligence” and was “ministerial” or involved “judgment and discretion,” which findings were the focus of the Gagnon brain injury case.