Tort Claims Against Virginia Local Governments

Tort Claims Against Virginia Local Governments

By Steven G. Friedman

Bringing suit against the government implicates rules and procedures not applicable to the usual private-party tort case. The following is part one of a three-part series summarizing the process and procedure for bringing a negligence claim against local, state, and federal governmental entities.

The following article addresses the process and procedure for filing a tort claim against a Virginia local government, meaning a county, city, or town. Future articles will address claims against the state and federal government.

As detailed below, there are two things to note when preparing to sue a Virginia local government: (1) a pre-suit written notice requirement and (2) the specified person(s) upon whom to effect service of process. Please note 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

Before filing a tort claim against a Virginia locality, the claimant must file “a written statement of the nature of the claim . . . within six months after such cause of action accrued.” Va. Code § 15.2-209(A) (emphasis added). “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.

The written notice must be delivered to either the local government’s “attorney or with the chief executive or mayor” of the locality. Va. Code § 15.2-209(B) (emphasis added). “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.” Va. Code § 15.2-209(C).

Significantly, the notice is only deemed filed upon receipt, not mailing. See id. Moreover, the claimant bears the burden of proving “notice in conformity with this section” Va. Code § 15.2-209(D). Luckily, however, “[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. So whichever means are used to effect delivery, it is important to obtain a signed and dated receipt.

There is no generic form or specified format for the written notice itself, which can simply be a letter from the claimant or their counsel. The only guidance for the substance of the letter is that it state “the nature of the claim,” including “the time and place at which the injury is alleged to have occurred.” Va. Code § 15.2-209(A).

Significantly, when communicating that information, 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 GMU 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 identified that place and also 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).¹

“The provisions of this section are mandatory and shall be strictly construed.” Va. Code § 15.2-209(G). But see id. (“This section is procedural and compliance with its provisions is not jurisdictional.”). However, the failure to provide a written notice of claim shall not bar a claim, “provided that the attorney, chief executive, or mayor of such locality, or any insurer or entity providing coverage or indemnification of the claim, had actual knowledge of the claim, which includes the nature of the claim and the time and place at which the injury is alleged to have occurred, within six months after such cause of action accrued.” Va. Code §15.2-209(A) (emphasis added). The actual-knowledge exception is broader than the general written-notice requirement in that the former but not that latter includes “any insurer or entity providing coverage or indemnification.” In other words, if the locality’s insurer has “actual knowledge” of the claim, no formal written notice is required.

Although there are presentment and appeal procedures for counties, see Va. Code § 15.2-1243 et seq., they do not apply to tort claims. See Seabolt v. County of Albemarle, 283 Va. 717, 721, 724 S.E.2d 715, 718 (2012).

Service of Process

As there is no other statute specifying a statute of limitations for suit against a local government, the traditional time limitations apply, i.e., two years for negligence causing personal injury. See Va. Code § 8.01-243(A). To effect service of process against a local government, there are different people to be served depending on who exactly is named as the defendant.

If suing “a city or a town,” then you must serve the “city or town attorney,” if there is one; otherwise serve the “mayor, manager or trustee of [the] town or city.” Va. Code § 8.01-300(1). If suing “a county,” then you must serve the “county attorney,” if there is one; otherwise serve the “attorney for the Commonwealth” for that county. Va. Code § 8.01-300(2).

If suing “any political subdivision, or any other public governmental entity created by the laws of the Commonwealth and subject to suit as an entity separate from the Commonwealth,” then you must serve “the director, commissioner, chief administrative officer, attorney, or any member of the governing body of such entity.” Va. Code § 8.01-300(3) (emphasis added). If suing “a supervisor, county officer, employee, or agent of the county board, arising out of official actions of such supervisor, officer, employee, or agent,” then you must serve that person and the county attorney, if there is one; otherwise “the clerk of the county board.” Va. Code § 8.01-300(4).

“Service under this section may be made by leaving a copy with the person in charge of the office of any officer designated [herein].” Va. Code § 8.01-300.

¹Although these two cases are against the Commonwealth rather than a local government, the pertinent statute for the state likewise requires “a written statement of the nature of the claim, which includes the time and place at which the injury is alleged to have occurred.” Va. Code § 8.01-195.6(A).

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