Virginia Law

Article 3. Death or Change of Parties.

Except in the Supreme Court any new party to a case, whether he be joined or substituted, may in the discretion of the court have a continuance; and the court may allow him to plead anew or amend the pleadings so far as it deems reasonable, but in other respects the case shall proceed to final judgment or decree for or against him, in like manner as if he had been an original party to the case.

Code 1950, § 8-150; 1977, c. 617.

When the party whose powers cease is defendant, the plaintiff may continue his suit against him to final judgment or decree; provided that a successor in interest may be substituted in accordance with the Rules of Court; and provided further that upon motion the court may order that the suit proceed against the former party as well as the successor.

Code 1950, § 8-152; 1954, c. 333; 1977, c. 617.

If the committee, personal representative, heir, or devisee of the plaintiff or appellant who was a party, or of the decedent whose personal representative was plaintiff or appellant, shall not make a motion for substitution of parties under the applicable Rules of Court within a reasonable time after there may have been a suggestion on the record of the fact making such motion proper, the suit of such plaintiff or appellant shall be discontinued, unless good cause be shown to the contrary.

Code 1950, § 8-153; 1954, c. 333; 1977, c. 617.

The marriage of a party shall not cause a suit or action to abate. If a party changes his name, upon affidavit or other proof of the fact, the suit or action shall proceed in the new name, but if the change of name be not suggested before judgment, the judgment shall be as valid, and may be enforced in like manner, as if no such change of name had taken place.

Code 1950, § 8-147; 1973, c. 401; 1977, c. 617.

If at any time after verdict or judgment in the trial court during the pendency of an appeal or before the appeal is granted, the marriage, change of name or death of a party, or any other fact which might otherwise be relied on in abatement occurs, and such fact is suggested or relied on in abatement in the Court of Appeals or the Supreme Court, the court may, in its discretion, take or retain jurisdiction and enter judgment or decree in the case as if such event had not occurred.

Code 1950, § 8-148; 1973, c. 401; 1977, c. 617; 1984, c. 703.

Every motion for judgment, counter claim, or third party claim in a medical malpractice action, at the time the plaintiff requests service of process upon a defendant, or requests a defendant to accept service of process, shall be deemed a certification that the plaintiff has obtained from an expert witness whom the plaintiff reasonably believes would qualify as an expert witness pursuant to subsection A of § 8.01-581.20 a written opinion signed by the expert witness that, based upon a reasonable understanding of the facts, the defendant for whom service of process has been requested deviated from the applicable standard of care and the deviation was a proximate cause of the injuries claimed. This certification is not necessary if the plaintiff, in good faith, alleges a medical malpractice action that asserts a theory of liability where expert testimony is unnecessary because the alleged act of negligence clearly lies within the range of the jury's common knowledge and experience.

The certifying expert shall not be required to be an expert witness expected to testify at trial nor shall any defendant be entitled to discover the identity or qualifications of the certifying expert or the nature of the certifying expert's opinions. Should the certifying expert be identified as an expert expected to testify at trial, the opinions and bases therefor shall be discoverable pursuant to Rule 4:1 of the Rules of Supreme Court of Virginia with the exception of the expert's status as a certifying expert.

Upon written request of any defendant, the plaintiff shall, within 10 business days after receipt of such request, provide the defendant with a certification form that affirms that the plaintiff had obtained the necessary certifying expert opinion at the time service was requested or affirms that the plaintiff did not need to obtain a certifying expert witness opinion. The court, upon good cause shown, may conduct an in camera review of the certifying expert opinion obtained by the plaintiff as the court may deem appropriate. If the plaintiff did not obtain a necessary certifying expert opinion at the time the plaintiff requested service of process on a defendant as required under this section, the court shall impose sanctions according to the provisions of § 8.01-271.1 and may dismiss the case with prejudice.

2005, cc. 649, 692; 2007, c. 489; 2013, cc. 65, 610.

When a party dies, or becomes convicted of a felony or insane, or the powers of a party who is a personal representative or committee cease, if such fact occurs after verdict, judgment may be entered as if it had not occurred.

Code 1950, § 8-145; 1977, c. 617.

If a party plaintiff or defendant becomes incapable of prosecuting or defending because of death, insanity, conviction of felony, removal from office, or other reason and there are one or more co-plaintiffs or co-defendants, the court on motion may in its discretion either (i) suspend the case until a successor in interest is appointed in accordance with the Rules of Court, or (ii) sever the action or suit so that the case shall proceed against the remaining parties without delay, with the case as to the former party being continued and tried separately against the successor in interest when he is substituted as provided by the Rules of Court.

Code 1950, § 8-146; 1977, c. 617.

When, in any suit involving a decedent's estate or a trust, the number of parties exceeds 30, and any one of the parties jointly interested with others in any question arising therein, dies, the court may, notwithstanding, if in its opinion all classes of interests are represented and no one will be prejudiced thereby, proceed to render a decree in such suit as if such party were alive; decreeing to the heirs, devisees, legatees, distributees, or personal representatives, as the case may be, such interest as the deceased person, if alive, would be entitled to. The provisions of § 8.01-322 shall apply to decrees entered hereunder.

Code 1950, §§ 8-155, 8-156; 1977, c. 617; 2005, c. 681.