PALUM V. QUINN, 59 VA. CIR. 35, 2002 VA. CIR. LEXIS 119 (VA. CIR. CT. 2002)
The case came before the court for argument on defendant student’s motion to dismiss in an action arising from an accident giving rise to plaintiff injured party’s personal injury claim. The initial service on the student through his mother was quashed. The student filed a motion to dismiss because, under Va. Sup. Ct. R. 3.3 and Va. Code Ann. § 8.01-275.1, he was not served with process within one year of the commencement of the action.
The court chose to interpret the rule of service within one year of commencement of suit in Va. Code § 8.01-275.1 and Va. Sup. Ct. R. 3.3 as an administrative rule rather than as a jurisdiction rule. In this light, the injured person’s actions were in good faith when he attempted service at the place he had reason to believe was the student’s usual place of abode. Also, the student was certainly aware that the injured person would probably refile after a nonsuit and the quashing of the first service. The student was not sued for the second time unexpectedly. The student’s attorney was aware that the injured person had at least attempted service within the one year. The student had shown no prejudice in defending the second motion for judgment because he was not validly served until a little over 15 months after the action was instituted. Therefore, the court opted not dismiss the case for lack of service.
The motion to dismiss was denied.
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