Sims v. Rank

By Judge J. Michael Gamble I am writing to rule on the plea of the statute of limitations in this case. In this regard, Mr. Sims maintains that this is either a medical malpractice action or an action of infliction of emotional distress. In either event, these causes of action are controlled by Va. Code § 8.01-243. All causes of action for personal injury under this code section have a limitation of two years after the cause of action accrues. Under Virginia law, an action for personal injury accrues on the date the injury is sustained, not when the resulting damage is discovered. Kopalchick v. Catholic Diocese of Richmond, 274 Va. 332, 335, 645 S.E.2d 439 (2007). Under the allegations of the complaint, the latest Mr. Sims’ injury could have occurred was September 1, 2009. This is the date that the deposition of the defendant was presented in the Campbell County Circuit Court. The complaint was filed on February 24, 2012, more than two years after September 1, 2009. Mr. Sims argues that the tolling provisions of Va. Code § 8.01-229(D) suspended the statute of limitations while he was in bankruptcy. This provision, by its own terms, only applies to a defendant in a civil action, not a plaintiff. Mr. Leitch is directed to prepare the order that dismisses this case. Endorsement by Mr. Sims is waived.