Strother v. DeVocht

3 Va. Cir. 161, 1984 Va. Cir. LEXIS 95

• Court: Alexandria County Circuit Court
• Decided: February 23, 1984
• Docket: Case No. (Law) 8645
• Status: Published

Opinion

By JUDGE WILEY R. WRIGHT, JR.

The defendant has demurred to the motion for judgment on two grounds.

1. This wrongful death action was not instituted in the name of the personal representative of the decedent as required by Code Section 8.01-50(B); and

2. Virginia does not recognize a cause of action for the wrongful death of a stillborn child.

The plaintiff has conceded that this action should have been instituted in the name of the personal representative of the decedent, and this oversight may be cured by an appropriate amendment.

I have considered the authorities cited by counsel and have reached the conclusion that, regardless of contrary decisions in other jurisdictions, my ruling on the second ground is governed by Lawrence v. Craven Tire Co., 210 Va. 138, 169 S.E.2d 440 (1969), in which the Virginia Supreme Court held that the Virginia Wrongful Death Act does not provide an action for the wrongful death of a stillborn child.

Inasmuch as the second defect in the motion for judgment is not susceptible of cure by amendment, the demurrer will be sustained and the motion for judgment will be dismissed.