Walker v. Small Funeral Home

By Judge William R. Shelton The Court has before it the issue of whether this action is governed by the limitations period set forth in Virginia Code § 8.01-243(A) (“every action for personal injuries, whatever the theory of recovery . . . shall be brought within two years after the cause of action accrues.”) or Virginia Code § 8.01-248 (“Every personal action, for which no limitation is otherwise prescribed, shall be brought within one year after . . . such action has accrued.”). The threshold determination the Court must make is whether the plaintiffs’ alleged physical and mental pain, suffering, and anguish are the product of some affirmative physical injury to the plaintiffs or whether the alleged injuries are incidental to the emotional trauma caused by the defendants’ actions. In Carol Gaines v. Safeway Stores, 7 Va. Cir. 468 (1977), the Court stated: From a careful reading of plaintiff’s motion for judgment in its entirety, it is clear that plaintiff is not seeking recovery for physical injuries done to her corporeal body. Rather, she seeks redress for humiliation, embarrassment, etc., arising out of alleged slander, insulting words, false imprisonment and battery. To be sure, she alleges some physical ailments and discomfort, but these ailments are incidental to the emotional trauma arising from the defendant’s actions and not from physical bodily injuries . . . Accordingly, the court finds that the plaintiff’s allegations are personal actions which, under [259] Virginia Code [Section] 8-24, must be brought within one year from the date of accrual. The Court finds that the plaintiffs in the case at bar suffered no physical injuries to their corporeal body. Rather they seek recovery for physical and mental pain, suffering and anguish which were all byproducts of the emotional trauma produced by the defendants’ actions. Even more analogous to this action is McHenry v. Adams, Essex County Circuit Court, January 12, 1993. In that case, the plaintiff suffered emotional distress from the indignities his decedent mother suffered as a result of her improper burial. The Court in McHenry couched the issue as follows: Thus the question is whether the plaintiff has sustained “personal injuries” within the meaning of § 8.01-243 which provides for a two-year period within which to bring suit. If he has not, § 8.01-248 must govern. The Court concluded that the applicable statute of limitations was indeed Virginia Code § 8.01-248 which required the filing of the action within one year of accrual. Based upon the above case law, the Court finds that this action is governed by Virginia Code § 8.01-248 which mandates that such actions be brought within one year of accrual. This action accrued on March 9, 1991, when the ceremony was held during which the decedent was originally to be buried. This cause of action was filed on March 3, 1993, and is therefore time barred by Virginia Code § 8.01-248.