CL22-16433

February 6, 2024

Robert J. Haddad, Esq. Ruhloff, Swain, Haddad, Morecock, Talbert & Woodward, P.C. 317 30th Street Virginia Beach, Virginia 23451

Julie C. Mayer, Esq. Hancock, Daniel & Johnson, P.C. One Columbus Center 283 Constitution Drive, Suite 301 Virginia Beach, Virginia 23462

Gregory S. Bean, Esq. Gordon Rees Scully Mansukhani 5425 Discovery Park Boulevard, Suite 200 Williamsburg, Virginia 23188

Mary Elizabeth Sherwin, Esq. Kaufman & Canoles, P.C. 150 West Main Street, Suite 2100 Norfolk, Virginia 23510

Re:

Terry Cherry-Boone v. Norfolk Redevelopment and Housing Authority, et al.

Docket No.: CL22-16433

Dear Counsel: This matter came before the Court on the Plea in Bar of Third-Party Defendants Tidewater Emergency Medical Care, Sarah McCormack, M.D., and Jessica Peoples, P.A. The Court heard oral argument on December 18, 2023, issued its oral ruling, and entered a summary order denying the plea in bar. The Court writes today to highlight the lingering confusion caused by an unnecessary statute enacted to correct a federal court holding that our Virginia Supreme Court thereafter rejected as an erroneous interpretation of state law.

This case arises out of the December 20, 2020 death of Decedent Ariel Moena Cherry by carbon monoxide toxicity. Plaintiff Terry Cherry-Boone, Administrator of the Estate of Decedent, filed her Complaint against Norfolk Redevelopment and Housing Authority (NRHA), Commonwealth of Virginia, and City of Norfolk on November 28, 2022. The statute of limitations for a wrongful death claim is two years from the date of death. Va. Code § 8.01-244.

On March 15, 2023, NRHA filed a Third-Party Complaint against Tidewater Emergency Medical Care, Sarah McCormack, M.D. and Jessica Peoples, P.A. NRHA alleges that the ThirdParty Defendants failed in their duty to diagnose and treat Cherry’s carbon monoxide poisoning when she presented to the Emergency Department at Chesapeake Regional Medical Center on December 19, 2020. It seeks a judgment of contribution against those parties.

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Third-Party Defendants argue that Third-Party Plaintiff’s third-party action is time barred by Code of Virginia § 8.01-229(I): When an action is commenced within a period of 30 days prior to the expiration of the limitation period for commencement thereof and the defending party or parties desire to institute an action as third-party plaintiffs against one or more persons not party to the original action, the running of the period of limitation against such action shall be suspended as to such a new party for a period of 60 days from the expiration of the applicable limitation period.

That statute was enacted by the General Assembly following a decision by the United States District Court for the Western District of Virginia, holding that claims for contribution against a third-party defendant are barred upon the expiration of the plaintiff’s statute of limitation against the original defendant. Rambone v. Critzer, 548 F. Supp. 660, 664 (W.D. Va. 1982)(“Defendants' claim for contribution must rest on any claim the plaintiff might have for personal injuries … . This leads the court to the conclusion that, under Virginia law, at the time the third-party complaint was filed, plaintiff had no enforceable cause of action against the thirdparty defendant”).

The General Assembly responded to that ruling by enacting a statute that gave an additional sixty days following expiration of a plaintiff’s limitation period, for a defendant to file a third-party complaint for contribution. The statute, however, turned out to be wholly unnecessary; because the Virginia Supreme Court repudiated the Rambone holding in GemcoWare, Inc. v. Rongene Mold & Plastics Corp., 234 Va. 54 (1987). Gemco reinforced the “settled Virginia principles” that “the right to recover contribution arises upon payment or discharge of the common obligation, and it is then that the statute of limitations begins to run.” Id. at 57 (internal citations omitted). In the case of a third-party plaintiff that has not yet made any payment to the claimant, the right to contribution has not even accrued, much less expired. The Court wrote, “Rambone misconstrued Virginia law. And even if we assume the General Assembly enacted [§ 8.01-229(I)] in response to that erroneous decision, such legislative action does not persuade us to embrace a holding that is contrary to Virginia case law.” Id. at 59.

Thirty-five years after Gemco-Ware, § 8.01-229(I) continues to be cited as authority for the argument that the limitations period for a third-party plaintiff relates to the first-party plaintiff’s statute of limitations. The Court rules, consistent with Gemco-Ware, that NRHA’s limitations period for seeking contribution from the physicians and the hospital has not expired, notwithstanding the apparent application of Virginia Code § 8.01-229(I).

Sincerely,

MJH/mls

Mary Jane Hall Judge

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