Tort Claims Against the Commonwealth of Virginia
Bringing suit against the government implicates rules and procedures not applicable to the usual private-party tort case. The following is part two of a three-part series summarizing the various specialized process for bringing a negligence claim against local, state, and federal governmental entities. The following article addresses filing a tort claim against the Commonwealth of Virginia. Please note, however, that the question of whether a particular governmental entity is immune or otherwise not liable is beyond the scope of this writing.
Pre-Suit Notice
Pursuant to the Virginia Tort Claims Act (“VTCA”), Va. Code §§ 8.01-195.1 through -195.9, a tort claim “against the Commonwealth or a transportation district1 shall be forever barred unless the claimant or his agent . . . has filed a written statement of the nature of the claim . . . within one year after such cause of action accrued.” Va. Code § 8.01-195.6(A). “However, if the claimant was under a disability at the time the cause of action accrued, the tolling provisions of § 8.01-229 shall apply.” Id.2
The requisite written notice must not only state “the nature of the claim” but also include “the time and place at which the injury is alleged to have occurred and the agency or agencies alleged to be liable.” Va. Code § 8.01-195.6(A). “‘Agency’ means any department, institution, authority, instrumentality, board or other administrative agency of the government of the Commonwealth of Virginia and any transportation district created pursuant to the Transportation District Act of 1964 (§ 33.2-1900 et seq.).” Va. Code § 8.01-195.2. A notice that does not explicitly include the agency or agencies alleged to be liable is insufficient, even where such information is easily inferred from the notice. See Phelan v. Commonwealth, 291 Va. 192, 781 S.E.2d 567 (2016).
When providing the place where the injury occurred the claimant must provide sufficient detail so that a reasonable person could identify the location of the incident. Compare Halberstam v. Commonwealth, 251 Va. 248, 467 S.E.2d 783 (1996) (dismissed a claim for an injury that occurred in a university parking lot because the notice did not specify in which parking lot the injury occurred) with Bates v. Commonwealth, 267 Va. 387, 593 S.E.2d 250 (2004) (where there was only one university medical center in the city where the alleged events took place and the plaintiff’s notice of claim stated that decedent was admitted to that hospital and was injured by the alleged negligence of the employees of that hospital, the combination of these assertions reasonably identified the place of injury; plaintiff was not required to identify the floor or room within the hospital at which the alleged injury as that degree of specificity was unnecessary to satisfy the statute).
There is even less guidance on whether “the nature of the claim” stated in the notice limits the claims that can later be pursued in litigation. However, the limited authority available suggests that the phrase should not be strictly construed but rather the claim is subject to some expansion as more details are learned. See Dixon v. City of Chesapeake, 93 Va. Cir. 426, 429 (Chesapeake 2016) (“[T]he theory put forward by the plaintiff that the icy bridge conditions were, at least in part, caused by the City’s alleged failure to remove or make necessary repairs to a hazardous depression that caused draining issues, does not change the ‘nature of the claim.’ To apply the City’s rationale would result in a plaintiff being limited to only those facts and theories known at the time notice is given to the municipality, and would, in essence, obviate the need for the discovery process.”); Vivian v. Honda Motor Co., 64 Va. Cir. 297, 297-98 (Fairfax 2004) (where claimant’s notice specified “negligent design” of a roadway “among other things,” court rejected the Commonwealth’s argument that plaintiff “be strictly limited to the negligent design claim”; “Plaintiff’s notice ensured that the Commonwealth could investigate the incident, cure any dangerous conditions, and enter into settlement negotiations; it therefore ensured that the policy goals [of pre-suit notice] were met.”).
Regarding to whom to deliver the written notice:
If the claim is against the Commonwealth, the statement shall be filed with the Director of the Division of Risk Management or the Attorney General, except as otherwise provided herein. If the claim is against a transportation district, the statement shall be filed with the chairman of the commission of the transportation district. If the claim is against the Commonwealth [ex rel.] the Department of Transportation, then notice of such claim shall be filed with the Commissioner of Highways.
Va. Code § 8.01-195.6(B). Note that a claim against VDOT or a transportation district must be made to the Commissioner or chairman, respectively, but a claim against any other Commonwealth defendant can be filed with either the Attorney General or the Director of Risk Management.
Significantly, the notice is only deemed filed upon receipt, not mailing. See Va. Code § 8.01-195.6(C). “The notice may be delivered by hand, by any form of United States mail service (including regular, certified, registered or overnight mail), or by commercial delivery service.” Id. “If notice is to be filed with the Commissioner of Highways, it may also be delivered electronically in a manner prescribed by the Commissioner of Highways.” Id.
Given that the statute expressly allows for e-delivery to the Commissioner, it is likely that e-delivery is not permitted for any other person under the VTCA. See City of Richmond v. VEPCO, 292 Va. 70, 75, 787 S.E.2d 161, 164 (2016) (“[W]hen the General Assembly has used specific language in one instance, but omits that language or uses different language when addressing a similar subject elsewhere in the Code, we must presume that the difference in the choice of language was intentional.”).
The claimant bears the burden of proving compliance with the pre-suit notice. See Va. Code § 8.01- 195.6(D). “A signed United States mail return receipt indicating the date of delivery, or any other form of signed and dated acknowledgment of delivery given by authorized personnel in the office of the official with whom the statement is filed, shall be prima facie evidence of filing of the notice under this section.” Id. Accordingly, it is important that the claimant obtain objective written proof of successful delivery, such as a signature from the recipient (certified U.S. Mail or other handwritten note) or proof of delivery by a commercial delivery service.
Service of Process
“In all actions against the Commonwealth commenced pursuant to [the VTCA], the Commonwealth shall be a proper party defendant . . . . In all such actions against a transportation district, the district shall be a proper party[.]” Va. Code § 8.01-195.4.
“In all actions against the Commonwealth commenced pursuant to [the VTCA], . . . service of process shall be made on the Attorney General. . . . In all such actions against a transportation district, . . . service of process . . . shall be made on the chairman of the commission of the transportation district.” Va. Code § 8.01-195.4.
A complaint pursuant to the VTCA can only be filed after an administrative denial of the claim, and a claim is deemed denied if not affirmatively rejected within 6 months after filing the notice.
An action may be commenced . . . (i) upon denial of the claim by the Attorney General or the Director of the Division of Risk Management or, in the case of a transportation district, by the chairman of the commission of that district or (ii) after the expiration of six months from the date of filing the notice of claim unless, within that period, the claim has been compromised and discharged pursuant to § 8.01-195.5.
Va. Code § 8.01-195.7.
“[S]ubject to the tolling provision of § 8.01-229 and the pleading provision of § 8.01-235,” the statute of limitations for claims under the VTCA is “18 months after filing the notice of claim, or . . . two years after the cause of action accrues.” Va. Code § 8.01-195.7 (emphasis added). Given these time requirements, the claimant may actually have less than the usual two years after the incident to file suit. For example, if the incident takes place on July 1, 2026, and you deliver the requisite written notice on November 1, 2026, then the lawsuit must be filed by May 1, 2028 (18 months after written notice) which is two months prior to the two-year statute of limitations expiring on July 1, 2028. In other words, the statute of limitation is the shorter of 18 months after presuit notice or 2 years after the cause of action accrues.
This can create a conundrum for the claimant. As with any tort suit, you may want to quickly notify the tortfeasor of the claim and expressly request that any potential evidence be preserved, such as video of the incident, a vehicle’s event data recorder, or other tangible thing. But if such spoliation letter also meets the specific statutory requirements for pre-suit notice, then the claimant will be reducing the otherwise applicable limitations period for filing suit, perhaps even before the claimant is able to fully assess the extent of the injury suffered. So, if the claimant issues a spoliation letter to an agency of the Commonwealth, be aware that such letter could potentially qualify as the required written notice of claim, thus triggering the 18-month window in which suit must be filed against the Commonwealth.
1 “Transportation district” does not mean VDOT but rather is “limited to any transportation district or districts which have entered into an agreement in which the Northern Virginia Transportation District is a party . . . to provide passenger rail services[.]” Va. Code § 8.01-195.
2 Furthermore, the failure to provide a written notice “shall not bar a claim . . . provided that” the person or office who should have received the written notice “had actual knowledge of the claim, which includes the nature of the claim, the time and place at which the injury is alleged to have occurred, and the agency or agencies alleged to be liable, within one year after such cause of action accrued.” Va. Code § 8.01-195.6(A)
The entire Marks & Harrison Summer 2026 Points of Law newsletter is available for download.
Site by 