
    CIRCUIT COURT OF FAIRFAX COUNTY
    Deborah Combs, Administrator of the Estate of Earl Michael Sizemore, II, Deceased v. Rogers
    March 23, 2001
    Case No. (Law) 186028
   By Judge Michael P. McWeeny

This case came before the Court upon the Defendant’s Plea in Bar and Motion to Dismiss. During the hearing, the issues were clarified as the defendant withdrew his claim that no suit had been filed within file original limitations period. The remaining issue is whether the prior, nonsuited case failed to toll the running of the statute of limitations and whether the suit in the case at bar is void. Upon these points, the Court took its ruling under advisement

It is agreed that file Motion for Judgment in the prior case, as in filis case, was filed by Deborah Combs, Administrator of the Estate of Earl Michael Sizemore, Ú, Deceased, acting pro se. Accordingly, the defendant contends that as Ms. Combs was not acting on her own personal action, the filing was in violation of file Unauthorized Practice of Law Rules and thus void ab initio. The Court does not agree.

This is an action for wrongful death pursuant to Va. Code § 8.01-50. The defendant notes that the Virginia Supreme Court has defined a wrongful death action as “a right of action to enforce a cause of action, both created by statute in derogation of the common law.” Horn v. Abernathy, 231 Va. 228, 237, 343 S.E.2d 318 (1986). The action is not “personal” to the personal representatives. Id. This point was dispositive in Horn, supra, as the question was whether die death of a prior personal representative implicated Va. Code § 8.01-229(B), thus extending the time to file. Since the statute refers to die death of “a person entitled to bring a personal action” (id.), the death of a personal representative did not qualify.

Virginia Code § 8.01-50(B) provides:

Every such action under this section shall be brought by and in the name of the personal representative of such deceased person within die time limits specified in § 8.01-244..

(Emphasis added.)

Clearly, Ms. Combs is a named party and is authorized as the only party entitled to bring die action. It is not her personal action; however, she is not “representing” the estate, as the term is understood in the Unauthorized Practice of Law Rules. “As the party-plaintiff, [she] is merely a surrogate for the beneficiaries of the cause of action.” Horn v. Abernathy, supra, at 237.

As a surrogate, the personal representative stands in place of the beneficiaries and is a party entitled to file the suit pro se. Parenthetically, this appears to be the same as the situation in Horn as the initial notice of claim is described as having been sent by the first personal representative, Palmer Mays, with die hospital responding with “a copy of its leder... to Palmer Mays.” Horn, supra, at 230. (Counsel appears three months later. Id.)

The Plea in Bar and Motion to Dismiss are overruled and denied, respectively.  