A. Where there is pending any action by an infant plaintiff against a tort-feasor for a personal injury, where the cause of action accrued prior to July 1, 2013, any parent or guardian of such infant, who is entitled to recover from the same tort-feasor the expenses of curing or attempting to cure such infant from the result of such personal injury, may bring an action against such tort-feasor for such expenses, in the same court where such infant's case is pending, either in the action filed in behalf of the infant or in a separate action. If the claim for expenses be by separate action, upon motion of any party to either case, made to the court at least one week before the trial, both cases shall be tried together at the same time as parts of the same transaction. But separate verdicts when there is a jury trial shall be rendered, and the judgment shall distinctly separate the decision and judgment in the separate causes of action.
In the event of the cases being carried to the Court of Appeals, which may be done if there be the jurisdictional amount in either case, they shall both be carried together as one case and record, but the Court of Appeals shall clearly specify the decision in each case, separating them in the decision to the extent necessary to do justice among the parties. If an appeal is taken from the judgment of the Court of Appeals, the Supreme Court, in matters in which it grants the petition for appeal, shall clearly specify the decision in each case, separating them in the decision to the extent necessary to do justice among the parties.
B. For causes of action that accrue on or after July 1, 2013, the past and future expenses of curing or attempting to cure an infant of personal injuries proximately caused by a tort-feasor are damages recoverable by an infant in a cause of action against the tort-feasor and, if applicable to the infant's cause of action, are subject to the limitation on damages in § 8.01-581.15. Any parent or guardian of such infant who has paid for or is personally obligated to pay for past or future expenses to cure or attempt to cure the infant shall have a lien and right of reimbursement against any recovery by the infant up to the amount the parent or guardian has actually paid or is personally obligated to pay. The right to reimbursement of any parent or guardian shall accrue upon the first tender of funds of any recovery from a tort-feasor to the infant. Court approval of the infant settlement shall release party defendants from all claims for past or future expenses of curing or attempting to cure the infant.
Nothing in this section shall relieve a parent of the obligation to pay for the medical expenses of curing or attempting to cure the infant as such obligation exists under current law.
Code 1950, § 8-629; 1954, c. 333; 1973, c. 277; 2013, cc. 551, 689; 2021, Sp. Sess. I, c. 489.
Notes of Decisions
Cited in
15
cases, 1988–2010 · leading case:
Evans v. Evans, 695 S.E.2d 173 (Va. 2010).
Evans v. Evans, 695 S.E.2d 173 (Va. 2010).
· cites it 2× “See Code § 8.01-36. [2] Both Code §§ 46.2-1095 and 46.”
Perez Ex Rel. Perez v. Espinola, 749 F. Supp. 732 (E.D. Va. 1990).
· cites it 6× “See Va.Code § 8.01-36. Even if the parent’s claim enjoyed the benefit of the tolling provision, a parent could still file an earlier, separate suit.”
Hutto v. Bic Corp., 800 F. Supp. 1367 (E.D. Va. 1992).
· cites it 4× “Partial Summary Judgment In its April 24, 1992 motion for partial summary judgment, BIC asserts that it is entitled to partial summary judgment foreclosing plaintiff from recovering for the expense of her care and treatment resulting from her injuries. More specifically, BIC…”
Keene v. Yates, 81 F. Supp. 2d 655 (W.D. Va. 2000).
· cites it 10× “See Va.Code Ann. § 8.01-36 (Michie 1992). In contrast, the common law knew no cause of action for wrongful death, and under the maximum actio personalis mori-tur cum persona, a tort claim for personal injury did not survive the victim.”
Tucker v. Ware, 10 Va. Cir. 454 (Richmond County Cir. Ct. 1988).
· cites it 2× “Code Section 8.01-36. Where no action for damages is pending at the time of decedent’s death, a wrongful death action may be brought within two years of such death.”
Irby v. Richmond Pediatric Assocs., Inc., 16 Va. Cir. 383 (Richmond County Cir. Ct. 1989).
· cites it 4× “Code Section 8.01-36 provides, in pertinent part: Where there is pending any action by an infant plaintiff against a tort feasor for a personal injury, any parent, or guardian of such infant, who is entitled to recover from the same tort feasor the expenses of curing or…”
B.M.H. v. Sch. Bd. of Chesapeake, 833 F. Supp. 560 (E.D. Va. 1993).
· cites it 4× “, which they asserted as part of their parallel claims under Count III, see Va. Code Ann. § 8.01-36 (Michie 1950); and dismissing the Plaintiffs’ claims for punitive damages under Count III, because there have not been sufficiently egregious circumstances alleged.”
Sandow-Pajewski v. Busch Ent. Corp., 55 F. Supp. 2d 422 (E.D. Va. 1999).
· cites it 2× “Such a right of recovery is assured to parents under section 8.01-36 of the Virginia Code. However, there have been no expenses incurred in the past or that are foreseeable in the future for “curing and attempting to cure” the injuries and damage that C.”
Hobson v. Richmond Mem'l Hosp., 12 Va. Cir. 254 (Richmond County Cir. Ct. 1988).
· cites it 2× “Code Section 8.01-36 allows the parents to join their claim for medical expense incurred on behalf of the infant with the infant’s action for personal injuries, and the Hospital does not seek to sever that claim.”
BMH BY CB v. Sch. Bd., 833 F. Supp. 560 (E.D. Va. 1993).
· cites it 4× “, which they asserted as part of their parallel claims under Count III, see Va. Code Ann. § 8.01-36 (Michie 1950); and dismissing the Plaintiffs' claims for punitive damages under Count III, because there have not been sufficiently egregious circumstances alleged.”
Nkansah v. Hostetter, 51 Va. Cir. 125 (Fairfax Cir. Ct. 1999).
· cites it 10× “Defendant’s construction of Va. Code § 8.01-36 would permit a situation where a parent/spouse sues for recovery of expenses paid from non-marital assets.”
Wilkes v. Scaldeferri, 67 Va. Cir. 452 (Nelson Cir. Ct. 1998).
· cites it 5× “The defendant asserts that § 8.01-36 ofthe Code ofVirginia, which codifies the derivative claim of a parent for expenses of an injured child, does not include expenses incurred by the parent for loss of wages or loss of time.”
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