HB2302: Fiduciaries; naming fiduciary or subject of fiduciary relationship as party to an action.


HOUSE BILL NO. 2302
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the House Committee for Courts of Justice
on February 4, 2009)
(Patron Prior to Substitute--Delegate Griffith)
A BILL to amend and reenact 8.01-6 of the Code of Virginia, relating to naming the fiduciary or the subject of the fiduciary relationship as the party of interest in an action.

Be it enacted by the General Assembly of Virginia:

1.  That 8.01-6 of the Code of Virginia is amended and reenacted as follows:

8.01-6. Amending pleading; relation back to original pleading.

A. A misnomer in any pleading may, on the motion of any party, and on affidavit of the right name, be amended by inserting the right name. An amendment changing the party against whom a claim is asserted, whether to correct a misnomer or otherwise, relates back to the date of the original pleading if (i) the claim asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading, (ii) within the limitations period prescribed for commencing the action against the party to be brought in by the amendment, that party or its agent received notice of the institution of the action, (iii) that party will not be prejudiced in maintaining a defense on the merits, and (iv) that party knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against that party.

B. Notwithstanding any other provision of law, the naming of the subject of a fiduciary relationship instead of the fiduciary in a pleading in any action or suit required to be prosecuted or defended in the name of the fiduciary shall be considered to be a misnomer and the pleading may be amended pursuant to subsection A.

HOUSE BILL NO. 2302
Offered January 14, 2009
Prefiled January 14, 2009
A BILL to amend the Code of Virginia by adding a section numbered 8.01-6.3, relating to naming the fiduciary or the subject of the fiduciary relationship as the party of interest in an action.
Patron-- Griffith

Committee Referral Pending

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding a section numbered 8.01-6.3 as follows:

8.01-6.3. Amendment of pleadings; relation back to original pleadings; incapacitated persons and decedents; fiduciaries.

Any action or suit, including an action for wrongful death pursuant to Article 5 ( 8.01-50 et seq.) of Chapter 3, which alleges a claim on behalf of or against a party that may be prosecuted or defended in the name of a fiduciary shall not abate or be defeated for naming or failing to name the subject of the fiduciary relationship provided the subject of the fiduciary relationship can be ascertained from the face of the original pleadings. Whenever it appears by affidavit or otherwise that there has been a failure to name the fiduciary as a party or that the subject of the fiduciary relationship, but not the fiduciary, is named in the original pleadings, the court may amend the pleadings as the ends of justice may require and such amendment shall relate back to the original pleading.

This section shall be given retroactive and prospective effect.