Legal Malpractice Claim Barred by Virginia Statute of Limitations
January 5th, 2011
In Van Dam v. Gay, No. 091659 (Va. Sept. 16, 2010), the Court affirmed the trial court's award of summary judgment to an attorney in a legal malpractice case based on the statute of limitations.
The alleged malpractice involved the representation of the former wife in a divorce case. As part of the divorce settlement, the wife's attorney drafted a property settlement agreement. During the marriage, the former husband participated in two federal retirement plans, military and civil service. The property settlement agreement made only the following reference to them: "The wife shall receive . . . survivor's benefits from the husband's retirement pay."
Twenty years later, the former husband died. The former wife then applied for survivor's benefits under her former husband's two retirement plans. Both claims were denied on the ground that the 1986 property settlement agreement was insufficient, as a matter of federal law, to entitle her to benefits under either plan.
The former wife then brought a legal malpractice suit against her attorney, who entered a plea in bar asserting the statute of limitations.
The Circuit Court sustained the plea in bar of the statute of limitations, and the wife was awarded an appeal.
On appeal, the former wife argued that her cause of action could not have accrued until her husband's death in 2006, because up to that point, her right to survivor's benefits would have been purely contingent upon the former husband predeceasing her.
The Court disagreed, reasoning that the legal injury suffered by the wife in 1986 was not vitiated by the fact that her right to pension benefits was contingent upon her surviving her former husband. Under the equitable distribution statute, Va. Code sec. 20-107.3(A)(2), in divorce proceedings all pensions are presumed to be marital property in the absence of satisfactory evidence that they are separate property and the court may direct payment of the marital share of such benefits whether they are "vested or nonvested" as they become payable.
Some injury or damage, however slight, is essential to a cause of action, but it is immaterial that all the damages resulting from the injury do not occur at the time of the injury.
Accordingly, the Court held that the Circuit Court correctly held that the wife's legal injury arising out of the defendant's alleged malpractice occurred on November 3, 1986, when the court entered a final decree of divorce, terminating the defendant's employment in the matter.
Carol T. Stone, Esq., of Jordan Coyne & Savits, LLP, represented the defendant/appellee in this matter.
The alleged malpractice involved the representation of the former wife in a divorce case. As part of the divorce settlement, the wife's attorney drafted a property settlement agreement. During the marriage, the former husband participated in two federal retirement plans, military and civil service. The property settlement agreement made only the following reference to them: "The wife shall receive . . . survivor's benefits from the husband's retirement pay."
Twenty years later, the former husband died. The former wife then applied for survivor's benefits under her former husband's two retirement plans. Both claims were denied on the ground that the 1986 property settlement agreement was insufficient, as a matter of federal law, to entitle her to benefits under either plan.
The former wife then brought a legal malpractice suit against her attorney, who entered a plea in bar asserting the statute of limitations.
The Circuit Court sustained the plea in bar of the statute of limitations, and the wife was awarded an appeal.
On appeal, the former wife argued that her cause of action could not have accrued until her husband's death in 2006, because up to that point, her right to survivor's benefits would have been purely contingent upon the former husband predeceasing her.
The Court disagreed, reasoning that the legal injury suffered by the wife in 1986 was not vitiated by the fact that her right to pension benefits was contingent upon her surviving her former husband. Under the equitable distribution statute, Va. Code sec. 20-107.3(A)(2), in divorce proceedings all pensions are presumed to be marital property in the absence of satisfactory evidence that they are separate property and the court may direct payment of the marital share of such benefits whether they are "vested or nonvested" as they become payable.
Some injury or damage, however slight, is essential to a cause of action, but it is immaterial that all the damages resulting from the injury do not occur at the time of the injury.
Accordingly, the Court held that the Circuit Court correctly held that the wife's legal injury arising out of the defendant's alleged malpractice occurred on November 3, 1986, when the court entered a final decree of divorce, terminating the defendant's employment in the matter.
Carol T. Stone, Esq., of Jordan Coyne & Savits, LLP, represented the defendant/appellee in this matter.
