30 Jan Virginia: Car Accidents – a Lawyer’s Misnomer
On January 28, 2016, the Virginia Supreme Court issued Richmond v. Volk, No. 150192, which reconciled a pleading misnomer in a car crash lawsuit that was not corrected by amendment under Va. Code § 8.01-6, but which was remedied by nonsuit and correct refiling pursuant to Va. Code § 8.01-380 and § 8.01-229(E). Per the dissent, this pro-plaintiff opinion “involves an expansive exercise in statutory construction” and “judicial enhancement to further extend [nonsuit] range” as a “powerful tactical weapon”. Id. at 12.
The upshot of Richmond is that nonsuit will rescue a plaintiff who has sued using a patently incorrect name if simply the complaint “when considered as a whole clearly identifies…the proper party” by factual allegations of time, conduct, and other circumstance. Id. at 4-5 (emphasis added). Despite being named as “Katherine E. Cornett” – a name by which she never was known – “[Katherine E.] Volt is the only person that fits this description, it is readily apparent that she was the person against whom the action was intended to be brought.” Id.