Misuse of the Plea in Bar

Under Virginia law, a “plea in bar” or “special plea” is “a pleading which alleges a single state of facts or circumstances . . . which, if proven, constitutes an absolute defense to the claim.” Nelms v. Nelms, 236 Va. 281, 289, 374 S.E.2d 4, 9 (1988). This statement can easily be misinterpreted by defense attorneys who hope to eliminate a plaintiff’s claims prior to a full jury trial. Consider, for example, a case where the plaintiff claims that a truck driver negligently caused his injuries and alleges that the defendant trucking company is vicariously liable because the truck driver was the employee or agent of the trucking company. Can counsel for the trucking company use a “special plea” to have the issue of employment or agency decided prior to trial? Defense counsel will argue that the “special plea” is asserting a single state of facts which, if proven, completely eliminates the plaintiff’s vicarious liability claim.
Is this a “special plea” which is authorized by Virginia law?

The answer under Virginia law is an unequivocal “No.” Using a “special plea” to raise an issue of agency or employment would not be a proper use of a “special plea” but instead would be a “plea of the general issue” which is no longer allowed under Virginia law. See Va. Sup. Ct. R. 3:8(a).

It is useful to begin a discussion of special pleas by providing a summary of the types of issues which are properly raised by a special plea. In Nelms, the Supreme Court of Virginia listed the following:

Familiar illustrations of the use of a plea would be: The statute of limitations; absence of proper parties (where this does not appear from the bill itself); res judicata; usury; a release; an award; infancy; bankruptcy; denial of partnership; bona fide purchaser; denial of an essential jurisdictional fact alleged in the bill, etc.

Nelms, 236 Va. at 289, 374 S.E.2d at 9 (quoting E. Meade, Lile’s Equity Pleading and Practice, § 199, p. 114 (3d ed. 1952) (footnote omitted)).

Using a special plea to dispute agency or employment differs from the foregoing examples of
permissible special pleas because agency and employment are a substantive part of the plaintiff’s claim.

In order to recover against the trucking company on the basis of vicarious liability, the plaintiff must prove that the truck driver was the agent or employee of the trucking company and was acting in the course and scope of his employment or agency at the time that his negligence caused the plaintiff’s injury. A plea which disputes some fact that the plaintiff would have to prove as part of his claim is not a “special plea” but instead is a “plea of the general issue.” “At common law, a plea of the general issue was a traverse, a general denial of the plaintiff’s whole declaration or an attack upon some fact the plaintiff would be required to prove in order to prevail on the merits.” Stockbridge v. Gemini Air Cargo, Inc., 269 Va. 609, 617-18, 611 S.E.2d 600, 604 (2005). Pleas of the general issue are no longer permitted in Virginia. See id;Va. Sup. Ct. R. 3:8(a).

In Stockbridge, the Supreme Court of Virginia held that the trial court had properly denied a plea in bar because it raised a factual issue related to the merits and thus was a prohibited plea of the general issue. Although the trial court properly denied the plea in bar, it ultimately made the factual determination which was raised by the defendant’s plea and granted summary judgment based upon the matters presented at a hearing on the plea in bar. The plaintiff objected to this procedure on the basis that he “had a right to a jury trial on the issue” raised by the defendant’s plea. 269 Va. at 617, 611 S.E.2d at 604. On appeal, the Supreme Court agreed and reversed the summary judgment.

Circuit courts from around Virginia have consistently rejected attempts to use a plea in bar to short-circuit litigation and carve out and dispute a particular fact which is necessary to plaintiff’s claim. The use of any such procedural mechanism over objection would violate the fundamental right to a jury the Virginia Constitution, Virginia statutes, Virginia common law, and the Rules of Supreme Court of Virginia.

In Holmes v. Reid, 80 Va. Cir. 514 (Norfolk 2010), the plaintiff brought a premises liability claim for wrongful shooting death of the plaintiff’s decedent at a Norfolk entertainment facility. Id. at 515. The defendants filed a plea in bar which asserted that the defendants could not be held liable because the defendants were not the owners or managers of the facility where the shooting occurred and had no employment or agency relationship with any of the people whose negligence allegedly caused the death. Id. at 516. The court held that the plea in bar raised factual issues which it could not properly decide on a plea in bar but instead had to be decided by the jury at trial. 80 Va. Cir. at 519-20.

In Ratcliffe v. Fogus, 80 Va. Cir. 186 (Rockingham 2010), the plaintiff brought a claim for malicious prosecution. Id. at 186. The defendant filed a plea in bar which asserted that the plaintiff would not be able to prevail at trial because there was probable cause for the criminal complaint against the plaintiff.
Id. After reviewing the Nelms case, the court held that Virginia law did not empower the defendant to have the court, over the objection of the plaintiff, make pretrial factual determinations. Id. at 187.

Similarly, in Joyce v. Center for Brief Counselling, Inc., 29 Va. Cir. 209 (Fredericksburg 1992), the defendant filed a plea in bar which purported to raise the issue of the soundness of the decedent’s mind at the time he took his life. The defendant argued that the trial court should decide the factual issue raised by the plea in bar prior to trial. The trial court rejected that argument and held that because the plaintiff insisted upon the right to jury trial the issue raised by the special plea would be part of the factual determinations made by the jury at trial. The court overruled the plea in bar as an impermissible plea of the general issue. Id. at 211.

In Fee v. Ellison, 90 Va. Cir. 251 (Norfolk 2015), the defendants filed a special plea to raise the same type of issue raised in Joyce. The court said that holding a separate evidentiary hearing would improperly adjudicate an element of the plaintiff’s case before trial. The court explained:

“[A] defendant may not use a plea in bar as a plea of the general issue of the case, or more specifically, to attack the plaintiff’s ability to prove a certain part of his case.” Ratcliffe v. Fogus, 80 Va. Cir. 186 (Rockingham Cnty. 2010) (citing Stockbridge v. Gemini Air Cargo, Inc., 269 Va. 609, 617-18, 611 S.E.2d 600 (2005)). Nor may a defendant use a “special plea in bar to pluck one essential ingredient from the plaintiff’s case and cause it to be adjudicated—with a jury, if requested—prior to trial.” Mea v. Spiegel, 44 Va. Cir. 122, 123 (Norfolk 1997) (citing Joyce v. Center for Brief Counselling, Inc., 29 Va. Cir. 209, 211 (Fredericksburg 1992)).

90 Va. Cir. at 252. See also VDart, Inc. v. Arthur Grand Techs., Inc., 107 Va. Cir. 206, 209 (Fairfax 2021) (a plea in bar which disputed the plaintiff’s allegations of an employment relationship was a plea of the general issue and was not permitted); Doe v. Va. Church of God, 2022 Va. Cir. LEXIS 33, at *9 (Waynesboro Cir.
Ct. Mar. 4, 2022) (same).

The efforts of defendants and their counsel to use the “special plea” or the “plea in bar” also often raise important issues relating to the right to trial by jury under Virginia law. Those issues will be discussed in a future article.

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