Legal Memorandum: Tolling of Statute of Limitations in VA

Issue: Under Virginia law, does a defendant’s obstruction of a plaintiff’s ability to bring a claim have an affect on statute of limitations?

Area of Law: Litigation & Procedure
Keywords: Statute of limitations; Defendant's obstruction; Tolled
Jurisdiction: Virginia
Cited Cases: 89 S.E. 118; 551 S.E.2d 644; 618 S.E.2d 336; 262 Va. 330
Cited Statutes: Va. Code Ann. § 8.01-243(D), § 8.01-229(D)
Date: 02/01/2015

The statute of limitations may be tolled when the defendant obstructed the plaintiff from bring suit:

When the filing of an action is obstructed by a defendant’s (i) filing a petition in bankruptcy or filing a petition for an extension or arrangement under the United States Bankruptcy Act or (ii) using any other direct or indirect means to obstruct the filing of an action, then the time that such obstruction has continued shall not be counted as any part of the period within which the action must be brought.

Va. Code Ann. § 8.01-243(D) (emphasis added). 

In order to receive the benefit of the tolling from § 8.01-243(D):

[T]here must be some affirmative act or representation designed to prevent, and which does prevent, the discovery of the cause of action.  Concealment of a cause of action preventing the running of limitations must consist of some trick or artifice preventing inquiry, or calculated to hinder a discovery of the cause of action by the use of ordinary diligence, and mere silence is insufficient. There must be something actually said or done which is directly intended to prevent discovery.  . . .  The fraud which will relieve the bar of the statute must be of that character which involves moral turpitude, and must have the effect of debarring or deterring the plaintiff from his action.”

Newman v. Walker, 270 Va. 291, 296-297, 618 S.E.2d 336, 338-40 (2005) (quoting Hawks and Culpeper National Bank v. Tidewater […]

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