Landes v. Erie Insurance Exchange

48 Va. Cir. 298, 1999 Va. Cir. LEXIS 81

• Court: Chesterfield County Circuit Court
• Decided: March 19, 1999
• Docket: Case Nos. CL989-1018 and CL98-936
• Status: Published

Opinion

BY JUDGE WILLIAM R. SHELTON

On February 25, 1999, the parties appeared by counsel and presented arguments on the defendant’s demurrer. In the demurrer, the defendant alleges that the loss and damage identified in file CL98-936 occurred more than two years prior to filing the Motion for Judgment, and thus, the action is barred by the statute of limitations. At the hearing, the Court took this matter under advisement. Upon a consideration of the evidence, the Court shall deny the defendant’s demurrer.

The defense of the statute of limitations may not be raised by demurrer. See Va. Code Ann. § 8.01-235 (Michie Repl. Vol. 1992). Furthermore, “[u]pon demurrer, the test of the sufficiency of a motion for judgment is whether it states the essential elements of a cause of action, not whether evidence might be adduced to defeat it” Lyons v. Grether, 218 Va. 630, 633, 239 S.E.2d 103, 105 (1977). The defendant may not assert new matter in the demurrer; a demurrer which alleges new facts is a “speaking demurrer” and will be stricken from the record.

Therefore, the defendant’s demurrer is overruled. When the defendant files the appropriate pleading and asserts the appropriate argument, the issue regarding the statute of limitations will be reconsidered. Please be advised that the plaintiff has not provided the Court with a copy of the policies of insurance referred to in the Motions for Judgment. As plaintiff has filed two separate claims, a copy of the insurance policy should be provided for each file.