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Abstract

This Article posits that the interaction between Virginia standing doctrine, bankruptcy law, and Virginia’s two-year statute of limitations applicable to personal injury causes of action creates a timing issue that can lead to harsh and unnecessary consequences for certain plaintiffs. Under the Supreme Court of Virginia’s decisions in Kocher v. Campbell and Eye Consultants of Northern Virginia, P.C. v. Shaw-McDonald, the continued viability of a plaintiff’s personal injury cause of action can depend entirely on whether the plaintiff—who mistakenly fails to properly claim the personal injury claim as exempt on the bankruptcy schedules—files for bankruptcy before or after filing the personal injury complaint. If the plaintiff files the bankruptcy petition first, the personal injury claim automatically becomes part of the bankruptcy estate, leaving the plaintiff without standing and thus rendering the plaintiff’s subsequent personal injury complaint a legal nullity that does not toll the statute of limitations. By contrast, if the plaintiff files the personal injury complaint before filing for bankruptcy, the personal injury claim still automatically becomes part of the bankruptcy estate when the bankruptcy petition is filed, but the plaintiff’s standing is considered only temporarily suspended during the pendency of the bankruptcy proceedings. This allows the personal injury claim to continue to toll the statute of limitations the entire time. Thus, as it stands, two plaintiffs can suffer the same injury, make identical bankruptcy errors, and exercise a similar degree of diligence and yet meet radically different fates based solely on the order in which they file. This Article takes the position that such a distinction is unnecessary, overly technical, and inconsistent with the purposes of both Virginia’s standing doctrine and statutes of limitations. To address this problem, this Article proposes that Virginia adopt a unified rule: when, due to a reasonable mistake or misunderstanding, standing is artificially jeopardized by the automatic creation of a bankruptcy estate, standing should always be treated as temporarily suspended, not terminated, regardless of the order of filing. Under such a rule, the Supreme Court of Virginia can simply treat a cause of action as sufficiently “commenced” for purposes of tolling the statute of limitations when the plaintiff’s standing to bring that cause of action is merely suspended as opposed to terminated.

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