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2003 SESSION

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HB 2586 Future potential liability.

Introduced by: Ward L. Armstrong | all patrons    ...    notes | add to my profiles

SUMMARY AS INTRODUCED:

Future potential liability. Provides that claims, counterclaims, cross-claims and third-party claims may be based on future potential liability regardless of whether the claim is stated in the alternative, or whether any demand for payment has been asserted against, or any payment or other discharge of liability made by, the person asserting such claim. This bill thus creates a new code section to clarify the ability to sue for future potential liability under § 8.01-281.

The bill overrules the Supreme Court's decision in Charles Rutter, Executor of the Estate of Mildred Duncan v. Jones, Blechman, Woltz & Kelly, PC, et al., 2002 Va. LEXIS 101. In Rutter, plaintiff executor sought to assert a claim of malpractice against the attorneys who prepared a will on the grounds that negligent drafting cost the estate over $600,000 in tax liability. The Supreme Court held that no cause of action could have accrued during decedent's lifetime because damages were not sustained until her death triggered execution of the will. In effect, the Supreme Court held that decedent could not have asserted a claim for future potential liability before she died. Because no cause of action existed during decedent's life, § 8.01-25 directed that no cause of action survived her death, and the judgment for defendants was affirmed.


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