Statute of Limitations Relation Back-Criteria
For instance imagine that a plaintiff files a medical malpractice action. Many months after the original complaint has been filed and after the statute of limitations has run, the plaintiff seeks to add an informed consent claim. Does the informed consent claim relate back to the original date of filing?
The above Code section sets forth three (3) criteria:
- Does the claim arise out of the same conduct, transaction or occurrence?
- Was the plaintiff reasonably diligent in asserting the new claim?
- Will the party opposing the amendment be substantially prejudiced?
The prior case law is in large measure contained in Vines v. Branch, 244 Va. 185, 186 (1992). Vines said that amendments will not be allowed when they raise a new substantive cause of action. However some circuits have different interpretations of that language. That is, some circuits say that as long as the new claim is based on the same evidence, then the amendment should be allowed.
Transaction versus Claim
What those cases seem to ignore is the distinction between cause of action and right of action. A cause of action is the operative set of facts giving rise to a right of action. Therefore one cause of action may give rise to a number of rights of action such as breach of contract, breach of warranty, negligence and other claims. Wallace v. Zoller, 52 Va. Cir. 80, 83 (2000).
Rule 1:6, which was adopted in 2006, defined a cause of action as one arising from identified conduct, a transaction or an occurrence regardless of the evidence or the particular remedies sought. That same broad definition of cause of action should be applied in regards to relation back. That is to say, if the new claim arises out of the same cause of action, even though it’s a different right of action, then relation back may apply if the other two (2) criteria are met. To put it another way, the new claim must arise out of the same conduct, transaction or occurrence. This is the same analysis applied as to Rule 1:6.
Confusion as to Trade Names
Pursuant to Va. Code § 8.01-6.2, a pleading which states a claim against a party whose trade name or corporate name is substantially similar to the trade name or corporate name of another entity may be amended at any time by inserting the correct party’s name if such party or its agent had actual notice of the claim prior to the expiration of the statute of limitations. For instance, you sue Party A, thinking it is the correct defendant. It turns out that Party B is the correct defendant but they both operate under the same trade name. Assuming that Party B had notice of the claim prior to the statute running, then the amendment does relate back.
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For more information on limitations see:
personal injury limitations
sex abuse limitations
limitation safe harbors
