Virginia has a very interesting concept in car accident litigation, which is essentially a “second bite at the apple.” Pursuant to Virginia Code Section 8.01-380, if you have a pending car accident case in court, you can file a “nonsuit,” which allows you to voluntarily drop the case. You then have the right to refile it and keep going with that case, so long as you do so within six months. Depending on the facts of your case, a nonsuit may be very beneficial.
Why would you want to file a nonsuit?
If you’ve filed your Virginia car accident case, you likely want to get it resolved as soon as possible. However, as trial approaches, sometimes issues may come up that make a nonsuit a very good option.
One situation may be that an expert witness backs out on you without enough time to find an alternative. Other situations may include witness unavailability or your injury complications that change the nature of your case. And the Court is unwilling to grant you a continuance (or postponement) of your court date.
While these are a few examples, there’s a whole host of other reasons your case may be gutted if you don’t take a nonsuit. Every case is different, and a nonsuit allows for flexibility.
What are some conditions that would prevent you from filing a nonsuit?
While the use of a nonsuit is broad, there are some limitations under Code 8.01-380. First, unless specifically allowed by the Court or agreed to by opposing party, you only get one nonsuit. For that reason, at Abrenio Law, we never “burn” a nonsuit unless absolutely necessary. So, we only use a nonsuit as a last resort.
Under Subsection D, you can only nonsuit a case with consent of the opposing party where that party has filed a counterclaim, cross claim or third-party claim arising out of the same case.
Additionally, there are limitations when you can file the nonsuit. Subsection A prevents a nonsuit after “a motion to strike the evidence has been sustained or before the jury retires from the bar or before the action has been submitted to the Court for decision.”
Under Code Section 8.01-299, to refile a nonsuited case, you must do so within six months of the nonsuit. So, be careful not to blow this new statute of limitations after a nonsuited case.
What are some complications of filing a nonsuit (too late)?
If you are going to exercise a nonsuit, also be aware that, in some instances, costs, attorneys fees, and other fees may be assessed against you. This usually pertains to waiting until after the other side has spent a lot of money preparing for the case.
For example, Subsection C provides
…if notice to take a nonsuit of right is given to the opposing party within seven days of trial or during trial, the court in its discretion may assess against the nonsuiting party reasonable witness fees and travel costs of expert witnesses scheduled to appear at trial, which are actually incurred by the opposing party, solely by reason of the failure to give notice at least seven days prior to trial.
So, if you’re going to choose to take a nonsuit, make sure you do so deliberately. Don’t take a nonsuit simply because you “don’t feel like going to court” or you’re hoping the other side will just fold. A nonsuit can be a saving grace for your case. However, remember that during the delay, it may be over a year before you get a trial date in some jurisdictions. Over time, witnesses disappear, evidence is lost, and other complications arise with sheer time.
Still have questions?
Make sure to check out our Personal Injury & Criminal Defense Practice Pages where we’ve answered many other questions you likely have. James Abrenio is a Fairfax-Based Personal Injury & Criminal Defense attorney who practices throughout Northern Virginia. You can learn more about James Abrenio, some of our Prior Results, and Read Our Reviews. Make sure to contact us at Ph. 703-570-4180 for your Free Consultation.